Thank you, Mr. Chair.
Thank you for inviting the Canadian Maritime Law Association to discuss Bill S-3 today. I particularly appreciate being here with my colleague, Mr. McGuinness. As he suggested, while their focus is on the context and the underlying issues, the Canadian Maritime Law Association had a closer look at the drafting. So I hope that our presentations will complement each other.
My comments will cover three brief points. ln the first part, I'll briefly introduce the Canadian Maritime Law Association. In the second part, I'll essentially confirm that we endorse the bill. ln the third part, I would like to reiterate an area where the bill could be improved, and that will mirror our submission to the Senate on this point. Our endorsement of the bill, though, is not at all contingent upon this suggested improvement.
To begin, the Canadian Maritime Law Association is an organization consisting of both practising maritime lawyers across the country and a number of constituent companies and associations involved in the maritime industry. There are currently 14 of those constituent members representing a broad spectrum of the shipping industry. I can name the full 14, but just to give you a sense of the types of organizations, they include the Canadian Shipowners Association and the Shipping Federation of Canada.
The CMLA has its origins in Canada's involvement in international maritime law organizations. Specifically, the Comité Maritime International is an international body that was organized in 1897 to promote uniformity and reform in international maritime law and commerce. The CMLA is Canada's representative to the Comité Maritime International. The CMLA looks at domestic maritime laws, among other things, with one of the goals being uniformity. Since Bill S-3 would basically implement an international treaty that promotes uniform law, it's been of interest to the CMLA for some time. We have been monitoring it and have made similar submissions before the Senate. We've also had representatives on conference call meetings with the Department of Fisheries and Oceans involving the port state measures agreement and its implementation.
The fisheries committee of the CMLA has reported to its membership a number of times throughout the progress of the bill, and we've not received any adverse comments from any of our members. The CMLA agrees with the philosophy of the port state measures agreement. Specifically, because some countries do not effectively control their fishing vessels, we agree that it's necessary for states where fish are landed, including Canada, to take steps to control illegal, unreported, and unregulated fishing.
The CMLA is strongly in support of DFO's initiative to curb this illegal, unreported, and unregulated fishing through the implementation of this bill.
Although we support Bill S-3, there is one minor area where we feel there could be some room for improvement, and it's a particular area of drafting. Clause 8 of the Bill proposes an amended section 13 of the Coastal Fisheries Protection Act. This section retains wording from the existing act that allows seized fishing vessels and goods to be redelivered on posting of a bond in an amount and form satisfactory to the minister. lt also requires consent of a protection officer for release of that seized vessel. This is very similar to the existing wording in subsection 71(2) of the Fisheries Act.
Subsection 71(2) of the Fisheries Act was reviewed by the Nova Scotia courts in the trial decision of R. v. McDonald in 2002, which was upheld by the court of appeal, and in that decision the judge observed that, “It seems there is a failure in the legislation to have the issue of interim possession of these important items determined judicially”. Essentially the judge was critiquing subsection 71(2) of the Fisheries Act, which is largely the same as section 13 of the current Coastal Fisheries Protection Act. The CMLA feels that this is a timely opportunity to make that amendment in the current legislation. We concur with the comments of the judge in that decision of R. v. McDonald.
The CMLA is of the view that both section 71 of the Fisheries Act and section 13 of the Coastal Fisheries Protection Act are fundamentally flawed because they provide that the security to be granted for release of a vessel must be in a form and amount satisfactory to the minister as opposed to a court. As I've said, this provision has been interpreted by at least one court to mean that if no form of security is satisfactory to the minister, the vessel need not be released.
Our suggestion is a modest improvement to the bill. It would be a proposed change to section 13, similar to what was proposed by the government in 2007 when it looked at changing subsection 71(2) of the Fisheries Act, 2007. That was in Bill C-32. Unfortunately, that bill died on the order paper, so the amendment was never implemented.
But the amendment required is very simple. It just changes the determination of the form and the amount of the security from the minister to a court or tribunal.
When a fishing vessel is seized by the Government of Canada pending trial, it can take one to two years, or even longer in some cases, to work its way through the courts. The underlying concern is that during this time the owner of the seized vessel cannot use the vessel, and it very likely will put the crew out of work. Given the presumption in our legal system of innocence until proven guilty, preventing the vessel from working pending trial seems problematic. It amounts to a penalty prior to any finding of guilt.
The Fisheries Act and the Coastal Fisheries Protection Act have always had provisions whereby owners of these vessels could post money to get the vessels released pending trial. Normally in that case, the penalty that the crown is seeking would be roughly what they're seeking for security to release the vessel, sometimes slightly in excess of that. This allows the asset, then, to resume working pending the outcome of the trial.
The problem with the current provisions in both Fisheries Act subsection 71(2) and section 13 of the Coastal Fisheries Protection Act is that they essentially say that the court can allow the vessel to be released, but they also say that the minister and not the court decides on the amount and form of the security. The fundamental concern we have with this is that this amount and form of security should be determined by an impartial and independent person, such as a judge or an administrative tribunal. With the present version of section 13, this task is essentially performed by the minister, which effectively in most cases means that it's the fisheries officer conducting the investigation who decides upon the amount and form of security.
The earlier amendment recommended in Bill C-32 to the Fisheries Act would have substituted a court or tribunal for the minister. I recognize that there is no tribunal associated with the Coastal Fisheries Protection Act. In the present case, the CMLA is of the view that section 13 could refer only to a court rather than the minister.
I'd also note that in the Coastal Fisheries Protection Act there's a requirement in section 13 that a protection officer “consent” to the vessel being released. The CMLA also suggests that this reference be deleted because, similar to the minister, the protection officer is not necessarily an impartial and independent person. In our view, the reference should also be to the court, or the court should decide that.
To summarize, Mr. Chair, the CMLA proposes this minor amendment to address what we see as largely a procedural concern. We think it's timely to fix what we see as a minor flaw in the legislation. We believe, given the presumption of innocence until proven guilty under our legal system, that the court is best positioned to set the form and amount of security and that this change would improve the bill. Regardless, the CMLA does agree with the philosophy of the legislation and endorses Bill S-3.
Subject to any questions, those are my submissions. Thank you.