Environment Committee on April 30th, 2009

[David McGuinty, Liberal, Ottawa South, ON]

Thanks very much, Chair.

I need to hear more from you, if I could, on these really important questions and points that were made. I think it was Monsieur Boucher who said he was fearful that the concept or the notion of self-regulation was migrating from the transport sector to the marine sector, the shipping sector.

Mr. Lahay, I think you've talked about the difficulty of attracting new blood into the industry.

Ms. Arsoniadis, you talked about the problems now that might flow as a result of this new liability regime in attracting new investment in the shipping industry.

It's interesting, because I need to place this a little bit in context.

The government recently announced that it was doing away with environmental assessment in Canada for any projects worth less than $10 million. It did so without bringing it to this committee, for example, but the principal rationale, in fact the only rationale, was that it was going to have a nefarious effect on the economy and the ability of the government to put stimulus money out the door; it was an impediment.

Now we have a situation where the government is proposing legislation that, hearing from you, is going to have a nefarious effect on business and investment. Can you help us understand better what this would do on investment, new blood, liability insurance coverage, and directors' and officers' liability, and will it benefit foreign shippers?

[Kaity Arsoniadis Stein]

Why don't I start here? I can tell you that right now the international community is watching the Bill C-16 developments very closely. Right now, our global economy is really suffering. Canada has fared pretty well. Our banks are doing better than most banks globally and have an excellent track record, so there is a revived interest in Canada for investment.

Internationally, on the concerns with what Bill C-15 did, a lot of companies, blue-chip, great companies that are currently here, did risk assessments to see whether they should remain in Canada or do they owe it to their employees and shareholders to go to a less hostile environment? We did see downsizing, and we do know directly of two companies that were waiting to hear what would have happened with the result of Bill C-15. When Bill C-15 became law, these two companies went to Singapore. That's a fact, and we've heard of others.

The international shipping community is a small community and the links are tremendous. For example, the chair of ISAC is also the vice-chair at the International Chamber of Shipping. He's the vice-chair of the London Club, one of the largest P and I clubs in the world. He works with the Magsaysay Group. It is his company. They employ the biggest chunk of world seafarers globally. The connections go on and on. It's a small community.

One of our trading partners for Canada is Asia, and I can read here the Asian Shipowners' Forum joint statement: “The meeting was attended by 119 delegates from the Shipowner Associations of Australia, China, Chinese Taipei, Hong Kong, Japan, Korea...”. At page 12, they highlight the Canadian Migratory Birds Act. I'll read from the statement: “The Forum noted the amendments to the Canadian Migratory Birds Act (1999) made by the adoption of Bill C-15 and continues to support the concerns expressed by the Canadian shipowners.”

[The Vice-Chair, Liberal, Francis Scarpaleggia]

We're going to have to move on. We have limited time. But I think you made your point.

Mr. Bigras.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

In your testimony, a few minutes ago, you referred to a 1991 Supreme Court ruling on Wholesale Travel Group Inc. At that time, the Supreme Court had ruled that: “the availability of imprisonment does not alter the conclusion that strict liability does not violate the Charter.” You did not refer to this ruling even once.

Am I to understand that, in your opinion, this ruling does not apply to the case before us?

[Kaity Arsoniadis Stein]

I'm sorry, can you rephrase the part about the jail penalties?

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

With respect to strict liability, the Supreme Court rendered a decision in the Wholesale Travel Group Inc. case. It clearly ruled that the availability of imprisonment did not alter the conclusion that strict liability does not violate the Charter.

I would therefore like to know whether, in your opinion, this Supreme Court decision should be taken into consideration as part of our discussion on Bill C-16.

[Kaity Arsoniadis Stein]

It is a very important and complex case that requires in-depth analysis. I don't know the number off the top of my head, but while most judges said it was a breach of the Constitution, it was saved under section 1 of the charter. So the saving provision of section 1 allowed the case to be decided as it was. But I stress again that it's a very complex case. There was a five-to-six split. By no means was that a majority decision out of our Supreme Court.

In deep analysis of this case, when you take the individual facts into consideration--and I think that's what needs to be considered--and juxtapose them with what we have here today, our legal advisers have said it will be unconstitutional. I can read from Simon Potter's legal opinion and Alan Gold's legal opinion, but I'll stop there.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

My understanding of that decision is that strict liability does not mean that there is presumption of guilt. I know Mr. Woodworth to be an excellent lawyer. He believes that Justice Canada has done excellent work.

However, we must know what Justice Canada officials based their work on in order to, among other things, advise the department. In light of the testimony we have heard, whether we approve of it or not—that remains to be determined—it seems to me that Justice Canada should come to explain their position. That is the very least they could do.

I am somewhat surprised. In fact, during the testimony by their officials, Justice Canada remained silent on that issue, perhaps because the government has not consulted enough, and it had not seen what the industry and its workers were proposing.

Nevertheless, Mr. Chair, it seems to me that Justice Canada officials should come back before the committee to explain a number of legal issues.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Thank you.

I have a question. Will Justice Canada officials attend our clause-by-clause meetings?

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

I knew that Justice Canada officials would be in attendance.

That is not the point. The point is whether we, as parliamentarians, should be prepared to table amendments. Once our committee and Justice Canada proceed to clause-by-clause consideration, it will no longer be appropriate for us to ask questions. Justice Canada has to provide some explanation concerning a number of legal provisions.

Mr. Chair, it seems to me that we are now dealing with the matter in depth.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Very well.

I will come back to that later.

Mr. Hyer, you have four minutes.

[Bruce Hyer, NDP, Thunder Bay—Superior North, ON]

Thank you.

My question is for either Mr. Boucher or Mr. Lahay, or both.

I apologize for coming in late, and I'm sorry if I'm asking questions that have already been asked.

How will deregulation affect not only Canadian shipping in general but Canadian workers? Educate me on how this bill has the potential to damage or help Canadian workers in the shipping industry.

[Peter Lahay]

I think the Government of Canada knows that trade unions in this country are pretty much always opposed to any sort of deregulation. One of the things we are seeing is not just the deregulation itself, it's being combined with something else, and that is a lack of enforcement. We see that the total responsibility of the governance of a particular industry, be it our field or other sectors, including maybe even—it's been very controversial—the meat inspection industry, for example.... We have increased problems.

The catastrophe doesn't happen because of one event. It happens because of generally a chain of events, just as I was describing the interrelationships and the complexities of operating a ship. One thing doesn't normally lead to a big problem; it's a chain of events. I'm straying off topic here, but it is another point that we're awfully concerned about, the lack of enforcement of the regulations of our country as workers. We think workers are being put at the pointy end of the stick here and put in jeopardy in a whole range of manners.

We are here today mostly to address being bankrupted by court proceedings. That's our primary role in wanting to express to our government, our parliamentarians, for whom we have the greatest respect. We look to you for leadership. We also look to the bureaucracy of our government to work with us so that we can work together and provide the national security, provide that this ballast water isn't discharged. We do those things as an organization on oily water waste. We've produced pamphlets and we've been distributing them globally.

There are a lot of things we do where we meet our responsibility and exceed our responsibility. Sometimes we just feel a little bit let down by our regulators.

I'm sorry, Mr. Hyer, if that's a little off topic.

[Bruce Hyer, NDP, Thunder Bay—Superior North, ON]

Do you want to add anything, Mr. Boucher?

[Mark Boucher]

I just want to say that this is new to our industry: deregulation, self-regulation, and self-inspection. We're monitoring it carefully because we have a fear of financial pressures being placed on the seafarer to do self-inspection, self-regulation aboard their own vessels, at the senior levels. The financial pressures will be there, and so will fear of reprisals and all the things that go along with that. There has probably been a steep learning curve in other industries that have it already.

The guild has hired lawyers and staff to work for us on a full-time basis from coast to coast in order to carefully monitor that particular situation, to meet with all the appropriate people, and to watch it unfold, because it's coming into place whether we like it or not. It's being introduced. It's starting now on the west coast, and we'll see how that unfolds as it expands.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Thank you, Mr. Hyer.

We'll now go to Mr. Warawa for the last four minutes, and then I'd like to revisit the point Mr. Bigras raised, which is whether we should invite Justice Canada to be here at the start of the next meeting maybe for half an hour before we start the clause-by-clause. I'll ask for your opinions on that.

Mr. Warawa, please.

[Mark Warawa, Conservative, Langley, BC]

Thank you. I just want to again make the point that due diligence provisions currently exist in CEPA.

During the 2005 interventions the witnesses have been consistent in their position that they believe they were non-constitutional, but they are indeed constitutional. The other point I wanted to make is that BillC-16 deals with nine different statutes, not just shipping. The effects will not be just on shipping, but right across Canada there will be a higher degree of environmental enforcement. I'm just commenting on Mr. Boucher's concerns that his children maybe shouldn't be in seafaring, or Mr. Lahay, that these statutes are Canada-wide, not just shipping. It sounds to me that shipping wants to be exempt, but the rest of Canada will have to deal with these tougher regulations and tougher enforcements.

I believe we need to have consistency right across our country, including shipping. We do not look at the worst-case scenario, because the worst-case scenario does not apply, or rarely. We need to have good environmental enforcement.

The few minutes that I have left I'd like to pass on to Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I'm quite interested in the Ship-Owners Alliance's comments about how Canadian environmental laws are scaring away shipowners, which is the gist of what I get from that. To tell you the truth, I don't want to discourage corporate ownership in Canada, but I'm not sure it's a bad thing if Canadian and environmental enforcement is leading the world and at such a high quality that it's putting the fear of the law into shipowners.

Are you saying that shipowners are not going to ship through Canadian waters because our environmental enforcement standards under our government are so high?

[Kaity Arsoniadis Stein]

I'm not saying that full out, but I'm certain that considerations will be made whether a vessel sailing from the east will check into the port of Vancouver. We now have the widening of the Panama Canal. It could be that these larger vessels will just do the whole journey, instead of into Vancouver and then railing it to the east, so I can't speak in uncertain terms.

The clause we're asking for isn't specific to the shipping legislation; all nine pieces of legislation are tabled. So we are asking for consistency, no exceptions.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Sure.

I just wanted to make sure I understand. You are saying that because our environmental enforcement standards are so high, there may be shippers who don't ship through Canadian waters. That's what you're saying, is it?

[Kaity Arsoniadis Stein]

I'm not saying our environmental standards are so high; I'm saying it's good to have excellent enforcement. We should definitely keep our principle: polluter pays. We should remain with the strict liability for very high penalties. But where it comes to imprisonment, we should abide by our rule of law and uphold our constitutional guarantees.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

It's just unclear to me—

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Thank you.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I'm out of time? Thank you.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

I'd like to thank our witnesses for being here today. It was, I thought, an extremely interesting discussion. And judging from Mr. Bigras' comment, maybe we'd better take a little extra time to look at this in greater detail.

Thanks for coming. It was very helpful to our committee.

If the members would stay for a couple more minutes, we're going to proceed.

Should we go in camera?