Environment Committee on April 30th, 2009

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Welcome, everyone, to the 17th meeting of the Standing Committee on Environment and Sustainable Development. Today is our last meeting with witnesses on the subject of Bill C-16, an Act to amend certain Acts that relate to the environment and to enact provisions respecting the enforcement of certain Acts that relate to the environment.

Our witnesses today are from the marine industry. I thank you for being here today. I know some of you came from far away, as far away as British Columbia. You're representing essentially three groups, the Canadian Maritime Law Association, the International Ship-Owners Alliance of Canada Inc., and the International Transport Workers' Federation. The way we will proceed is that each group will be given eight minutes to present, and that will be followed by rounds of questioning.

Would you, Mr. Boucher, like to go first today?

Mr. Boucher, welcome. We look forward to hearing what you have to tell us.

[Mark Boucher, National President, Canadian Merchant Service Guild, International Transport Workers' Federation]

Thank you very much.

I'm Mark Boucher. I'm the president of the Canadian Merchant Service Guild, a professional association of 5,000 Canadian ships officers. The guild is an affiliate of the International Transport Workers' Federation, or ITF, representing over 600,000 members in all sectors of transportation. The ITF works to improve conditions of seafarers of all nationalities and promotes regulation of the shipping industry to protect the interest of seafarers. While the guild represents primarily licensed officers and senior crew members and marine pilots in Canada, the ITF represents almost all categories of the 15,000 seafarers on the ships in Canada's domestic industry.

The guild did send in its own written submission, but I'm comfortable to speak on behalf of the entire ITF caucus, because the guild is saying the same things as the ITF is saying. We take a very special interest in legislative matters affecting all Canadian seafarers.

I know you had to make a decision on short notice regarding whether to hear from us today, and we certainly appreciate the opportunity to be able to speak to you on this matter.

I want to say from the outset that seafarers are on the front lines of pollution prevention, and the Canadian seafarers, in particular, have a very good track record. Both seafarers and their representatives are in favour of having effective laws concerning environmental protection, and we recognize and support Canadian society's strong disapproval of environmental offences.

Bill C-16 amends a number of pieces of legislation affecting seafarers, including the Migratory Birds Convention Act and the Canadian Environmental Protection Act. These were also the principal pieces of legislation that were amended in 2005 by Bill C-15. A disappointment that is common to both Bill C-15 and now Bill C-16 is that it was very late in the game when we became aware of this piece of legislation. The guild and the ITF are more accustomed to being invited to provide input regarding proposed legislation in the marine transportation field, where we have been working closely with Transport Canada, and where consultation is held in an early and meaningful manner with a broad cross-section of groups, regarding important pieces of legislation such as the Canada Shipping Act. For many years we have contributed valuable input to transportation legislation in this manner, and that has provided us an opportunity to have a clear understanding and a certain comfort factor with a number of controversial proposed legislative changes. However, it was only yesterday that the guild and the ITF were given any opportunity to be briefed on Bill C-16 by government officials and to ask questions and provide comments.

It's more important, though, that I point out that the marine industry is having tremendous difficulty recruiting Canadian seafarers. This is a worldwide problem in the seafaring industry everywhere, and the key point today that I wanted to make. The average age of the seafaring workforce in Canada is very high, and we are trying to address this chronic shortage of seafarers right now by doing everything we can to recruit young people into the industry.

The guild and the ITF have a number of promising HR initiatives under way in cooperation with several other organizations, and we're making some progress on the quality of life ingredients for seafarers, but more progress needs to be made.

We need to ensure that effective training schemes are in place for entry-level positions and for career development and progression to senior levels, aboard ships as well as in pilotage. The entry-level positions and then the junior officer positions are the feeder groups for senior-level positions, not just on ships but in pilotage work and for certain shore positions in industry as well as in the regulatory field and government.

One of the things that are bound to affect the recruiting efforts that are under way and that scare off potential candidates is this type of legislation. Bill C-15 didn't help this situation, and it is not being corrected now. In our view, we see the problem being taken up another notch. What we see Bill C-16 doing is communicating to potential candidates in the marine industry that if you are a seafarer, you might get caught up in this, and you might be fined huge amounts of money and spend a fortune trying to defend yourself. These are very negative things when we are trying to attract new people into the marine industry. Canada needs a strong marine industry. We need to be able to attract a new generation of seafarers and do everything we can to make it fair for them and not have them treated unfairly.

We feel that this bill is unfair. One of the things it is proposing to do is reduce the crown's job by making it easier to get a conviction. We see this as a serious disincentive and a threat to having a strong domestic seafaring industry, which is important to Canada. Whether we foster it in legislation or not, Canada is a maritime nation, and the marine shipping that's going on right now across the country is vital. We need to build the marine industry, and that won't happen if seafarers here are treated unfairly, making it even more difficult to recruit a new generation of seafarers.

There has been a lot of recent discussion stressing the need for increases in enforcement. The first point I want to raise concerning this bill is with regard to proposed subsection 20(2) of the Environmental Violations Administrative Monetary Penalties Act, under Bill C-16, which, on page 186, states that:

The Minister has the burden of establishing, on a balance of probabilities, that the person, ship or vessel committed the violation.

This is reducing the onus of proof on the crown, which would be found in a penal case where it is beyond a reasonable doubt, to the lower civil test of a balance of probabilities, which, as we understand it, means that if those hearing the case decide it is more likely than not that you committed the offence, then they have to convict, and they don't have to be concerned with reasonable doubts.

Our view is that in this atmosphere of an appetite for increased enforcement, which we wholeheartedly support, this proposed threshold of proof is too low. While this does simplify prosecutions for the crown, it is not affording proper rights to the accused ship's crew members, and we are concerned this will facilitate convictions.

Our second point concerns proposed section 13.15 of the Migratory Birds Convention Act, as amended by clause 102 of Bill C-16, which on page 145 states that:

In a prosecution of a master or chief engineer...it is sufficient proof of the offence to establish that it was committed by a person on board the vessel, whether or not the person is identified...

The existing legislation now specifies in old subsection 13(1.6) that vicarious responsibility does not apply to masters and chief engineers. Bill C-16 proposes the opposite, and I'll talk more about that in a second. Not only that, but in proposed subsection 280(2) of the Canadian Environmental Protection Act, as amended by clause 73 of Bill C-16 on page 93, there's a change to indicate that:

...if the master or chief engineer...authorized...or participated in the offence, the master and chief engineer are a party to and guilty of the offence, and are liable....

We don't see why that was changed, because the only word that was changed was the word “are”, which indicates both of them and not just the one who may have committed the offence. Whereas before it said “the master or chief...as the case may be, is a party to the offence”, now it is proposing to say “the master and the chief engineer are party to the offence”. That change makes them both liable if either one of them does something that is unreasonable.

Obtaining the qualifications required for these senior levels of officer certifications takes many years, and it's at these senior levels that the shortage of qualified, licensed personnel is the most serious. Many of the officers at this level are fully eligible to retire right now. Increasing the criminalization of seafarers will drive them away. If that happens and the ship won't move, whatever important work the ship was doing will grind to a halt because they will have three-quarters of a crew but can't sail anywhere without key individuals. We need to do everything possible to reassure seafarers that they will be treated in a fair manner.

To sum up, we've already submitted a letter to the committee covering these same items that I've described.

We propose the removal of the new automatic vicarious liability of the master and the chief engineer that's found in proposed section 13.15 of the Migratory Birds Convention Act as amended by clause 102 of Bill C-16 on page 145.

Second, we pointed out that the revision that is proposed by clause 73 of Bill C-16, on page 93 in proposed subsection 280(2) of the Canadian Environmental Protection Act, refers to both of the seafarers in the positions of chief and master, instead of one or the other, as the case may be. We're proposing that this amendment be deleted as well.

We proposed the removal of the unacceptable reduced onus of proof that is found in proposed section 9 of the enforcement measures of the new Environmental Violations Administrative Monetary Penalties Act as enacted under clause 126 on page 186 of Bill C-16.

I've explained that we need to have a level playing field, especially since we already are having such difficulties recruiting. Despite the work that is going on, there's already too much negative publicity and too many disincentives for young people to enter the marine industry. There are already enforcement mechanisms that are effective without having to increase the criminalization of seafarers. The seafarers are employees working day to day for employers. The seafarers see themselves as the ones who would be getting hit with fines and jail terms. The employers are not going to go to jail for them, and they're not going to pay their fines for them. The pool of candidates who are willing to take that risk by becoming seafarers is decreasing.

I want to thank the committee for giving me an opportunity to present our input and comments on this important piece of legislation, and I hope the views we sent in by letter a few days ago will be given consideration.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Thank you very much, Mr. Boucher. That was an excellent presentation. It was very clear and to the point.

I would like now to proceed with the International Ship-Owners Alliance of Canada Inc., and Ms. Arsoniadis Stein, please.

[Kaity Arsoniadis Stein, President and Secretary-General, International Ship-Owners Alliance of Canada Inc.]

I am very pleased to be appearing before you. I would like to thank the committee for taking the time to listen to us. I would also like to thank Mr. Radford for organizing this meeting.

My name is Kaity Arsoniadis Stein and I am the president and secretary general of the International Ship-Owners Alliance of Canada. Our group represents approximately 400 vessels, locally and internationally, managed out of Vancouver, including bulk carriers, tankers, and containers, as well as tug operators and BC Ferries, one of the largest ferry operators in the world. Teekay, which is one of our founding members, transports more than 10% of the world's seaborne oil.

I'm also here today on behalf of the Council of Marine Carriers, an association operating Canadian tugs and barges, covering the entire west coast of North America and the Arctic, and the Canadian Shipowners Association, which represents vessels trading in the Great Lakes and the St. Lawrence, with an annual trade volume of over $18 billion.

The board of directors of the Vancouver Maritime Arbitrators Association lends its full support, as well as international shipping associations, whose letters have been submitted in our brief—the International Chamber of Shipping, Intertanko, Intercargo, Hong Kong Shipowners Association, and our global partner, BIMCO.

We fully support the objective of strengthening Canada's environmental laws and making sure those laws are enforced. Our concern is that the reverse onus situation brought about by former Bill C-15 of the 38th Parliament has not been corrected by Bill C-16.It has instead created a greater problem, since the possibility of strict liability fines of $6 million will be made available on a per-day basis. With the aggravated clause, it is $12 million available on a per-day basis.

Bill C-15 has removed the traditional legal concept of the presumption of innocence, thus breaching our constitutional guarantees of section 11 of our charter. The leading case on this issue is Wholesale Travel Group, 1991, where our Chief Justice Beverley McLachlin, currently the only remaining justice who served on this, stated that “...the penalty of imprisonment cannot, without violating the guarantees in the Charter, be combined with an offence which permits conviction without fault or because the accused has failed to prove that he or she is innocent...”.

It is important that we do not lose sight of fundamental principles of law. There are serious flaws associated with the loss of the presumption of innocence. One is that they breach international principles that are codified in the IMO convention and UNCLOS, to which Canada is party. MARPOL 73/78 makes a fundamental distinction between accidental and intentional pollution. The UN Convention on the Law of the Sea supports MARPOL and points to monetary penalties rather than imprisonment being the normal sanction. They provide serious criminal sanctions against almost everyone involved in the shipping operation without regard to whether the incident was accidental.

The development of these measures has had a negative effect on Canadian credibility in terms of our status as an important trading nation. These measures have, without a doubt, dissuaded business investment in Canada. Not a single shipping company that we are aware of has set up in Canada since the passing of Bill C-15.

Our government has invested $2.5 billion into the Pacific gateway and is working on a comprehensive package to stimulate the Canadian economy. If Canada, an export nation rich in resources, plans to retain and expand its current industry, our laws must be amended to provide confidence and security. Any blue chip company involved in transport that has located itself in Canada for a number of excellent reasons must now weigh these reasons against the risk of exposure to its directors, officers, and employees, and seriously consider relocating to less hostile jurisdictions.

You have letters of concern from the international community. Since the passing of Bill C-15, Canada has been blacklisted as an unfavourable jurisdiction to do marine business. It is publicized widely that Canada must amend Bill C-15 through Lloyd's List, P and I club circulars, and annual statements, and the international community is watching the progress of Bill C-16 very closely.

The international community is watching the progress of Bill C-16 very closely. I'll take a moment to read two excerpts.

One is from the International Chamber of Shipping, the ITF, and the Oil Companies International Marine Forum. It is a joint statement, a collective statement, and it is in the brief:

The introduction of the “due diligence” requirement in the case of accidental or non-intentional pollution is...problematic. We acknowledge that an accused person or vessel will not be found guilty if they can show that they exercised due diligence.... However, it is unreasonable, particularly in the case of accidental pollution, to apply strict criminal liability thereby placing the burden of proof on the accused to rebut an automatic assumption of guilt. Such an automatic assumption of guilt, where imprisonment is possible, raises significant human rights concerns.

I'll also read from Intertanko's support statement:

Bill C-15 seeks to introduce a strict liability offence for acts of pollution by individuals including a vessel’s master, officers as well as the vessel’s owner’s directors or officers. The prosecution is not required to prove the accused’s intent to commit the offence. We are very concerned that such provisions will, in effect, criminalize accidental or non-intentional pollution, and will seriously prejudice the master’s or crew’s action during a potential incident. While we recognize that an accused person is able to escape conviction provided he or she has proved that all reasonable steps were taken to prevent the pollution, the accused person is considered guilty and must prove his or her innocence, rather than vice versa.

The shipping industry has been requesting an amendment for the past four years and has worked very closely with Environment Canada and Transport Canada. While we fully support measures to protect the marine environment, we also seek to ensure that regulations are balanced, safeguard our crews, and do not prejudice the safe operation of vessels. We support the efforts in environmental legislation to minimize pollution and make polluters pay. These efforts should not, however, imperil individual liberty. Every individual has the right, in a modern democratic society, to the presumption of innocence. No one should be imprisoned without proof of commission of an offence and due process.

We have retained numerous lawyers to check this point for us to ensure that we're not in error. I will read from one of our statements. It's a joint legal opinion again, and it is in the brief:

It is entirely incongruous with the principles that should guide free and democratic societies, which purport to guarantee the presumption of innocence, to sweep away those constitutional rights for those who face imprisonment for infractions which involve a lack of diligence.

Finally, we have had consultations with Sarah Cosgrove and have met with some MPs from this committee. Given their concerns, we have reconsidered our previous submission and now suggest the clause that follows, which we believe preserves the fundamental objectives of Bill C-16 yet also addresses our concerns and those of the international community.

We therefore recommend that every act amended by Bill C-16 include a clause in the following terms:

Notwithstanding anything to the contrary in this act, where imprisonment is sought as a penalty, every accused shall be presumed innocent of the offence charged and shall at a minimum be entitled to a defence of due diligence.

Thank you for this opportunity to make our views known. I hope that we will find a solution that satisfies everyone.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Thank you very much, Ms. Arsoniadis.

We have exceeded our time limit by a few minutes, but this was worthwhile, especially since you read the wording for an amendment that you are suggesting to the bill, which may be of use to us later on.

I will now give the floor to Mr. Giaschi.

[Christopher Giaschi, As an Individual]

Thank you very much, Mr. Chairman.

I am a maritime lawyer. I am the west coast vice-president of the Canadian Maritime Law Association. The Canadian Maritime Law Association was established in 1951. We are an organization composed of both individual and constituent members. Most of our individual members are maritime lawyers who practise across the country. Our constituent members come from all facets of the Canadian marine industry.

The CMLA is Canada's representative to the Comité Maritime International, an organization that was established in 1897 and that is primarily concerned with international maritime law and the uniformity of maritime laws, not just through conventions but through various national associations such as the Canadian Maritime Law Association.

The primarily objective and interest of the Canadian Maritime Law Association is the establishment of effective and modern maritime laws and, in an international context, uniformity of those maritime laws, which we have come to know is absolutely essential when you're dealing with ships that move from place to place.

One of the things we are not is a lobby group for any particular maritime interest at all. We represent all maritime interests, and most of our lawyers have acted for all interests on both sides of the fence, as we say, both for and against ships. So we're not a lobby group; we're a broad-based group that's primarily interested in effective and modern law.

We have submitted a submission that I presume you all will have had. There are a few provisions of Bill C-16 that concern us, and those are the main points, the highlights, proposed paragraph 291(1 )(k) of CEPA and 16(1)(d) of the Migratory Birds Convention Act. These are the provisions that empower a court to order an offender to pay any person for the cost of cleanup, etc., following a pollution incident.

And in proposed section 274 of CEPA and proposed section 13.07 of the Migratory Birds Convention Act, there's a provision that provides for compensation for a new phrase, “non-use value”. We're particularly concerned about what that is.

The other provisions we're concerned about are proposed section 13.15 of the Migratory Birds Convention Act and proposed section 9 of the new Environmental Violations Administrative Monetary Penalties Act, establishing various levels of criminal liability for the master and the chief. Some of the my friends here today have expounded upon some of those concerns.

Our primary concern with respect to these various provisions is that they tend to violate or are inconsistent with current international conventions and current Canadian legislation in relation to marine pollution. The more important conventions are, first of all, UNCLOS, which was mentioned earlier. That's the United Nations Convention on the Law of the Sea. Article 230 of that convention--I'm not going to read the complete article to you--starts out: “Monetary penalties only may be imposed with respect to violations of national laws”. And this is in relation to pollution, monetary penalties only. It seems pretty clear that imprisonment should not be an option when you're dealing with something that comes under UNCLOS. It also provides in sub-article (3) of article 230:

In the conduct of proceedings in respect of such violations committed by a foreign vessel which may result in the imposition of penalties, recognized rights of the accused shall be observed.

Of course, recognized rights aren't defined there, but certainly in common law jurisdictions and also in civil law jurisdictions there are some basic rights afforded to any accused, one of which is the presumption of innocence, which I know the international shipowners have spoken on today, and they provided a number of briefs to you on that precise point. However, it is also arguably in violation of UNCLOS.

The CLC convention, which is an international convention related to oil pollution incidents and oil pollution damage, provides in article III:

4. No claim for compensation for pollution damage shall be made against the owner otherwise than in accordance with this Convention.

That specifically says that claims against the owner must be made in accordance with the convention. The next sentence says that the servants or agents of the owners, or members of the crew, are immune from any such claim. Keeping in mind that Bill C-16 empowers awards to be made against the owner and against the crew in sentencing, it's arguably in violation of the CLC.

Similarly, section 51 of the Marine Liability Act, which basically imports the CLC-type concepts into Canadian national law, provides that a shipowner shall be liable for the costs of the reasonable measures of cleanup actually undertaken. “Actually undertaken or to be undertaken” is the wording in the statute, which again would not provide for a non-use value type of award, which the new act is allowing for. That's not actually undertaken. That's something that's pulled out of the air.

Both the CLC convention and the Marine Liability Act provide for limitations of liabilities to shipowners and servants and agents in respect of oil pollution damage claims. In fact, Canada has a very sophisticated regime for compensating for pollution claims. It has multiple layers. Within Canada there is the ship-source oil pollution fund. Then there are the various fund conventions and the supplementary fund, which, in Bill C-7, we're just about to implement in Canada.

The current Bill C-16 doesn't take into account limitation of liability at all, and clearly it needs to. Essentially the problem is that in Bill C-16 we're disguising civil liability and civil compensation in quasi-criminal provisions, which is not fair and is not the right way to go. We're trying to do indirectly what we can't do directly.

Finally, I will say that we endorse the concerns that have been expressed about reverse onus, the test of the balance of probabilities, and the presumption of innocence. We have made a recommendation in our brief about at least one clause that can be put into the various pieces of legislation to ensure that international conventions that Canada has signed will have precedence whenever there is any conflict with any of these pieces of legislation.

Thank you very much.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Thank you very much, Mr. Giaschi. That was very interesting and very helpful.

We will now open up the questioning. Mr. McGuinty will begin.

[David McGuinty, Liberal, Ottawa South, ON]

Good morning, everyone. Thank you for coming.

I want to go back to the last two interventions. I have a couple of basic questions.

How extensively were you consulted by the government during the process leading up to the tabling of this bill? What kinds of meetings did you have? To what extent were these concerns raised directly?

[Kaity Arsoniadis Stein]

I will ask Peter Lahay, from the ITWF, to give the full history, because he was involved during the Bill C-15 days and is currently involved in Bill C-16.

[David McGuinty, Liberal, Ottawa South, ON]

Yes. Please don't be too long, Mr. Lahay. Thank you.

[Peter Lahay, National Coordinator, International Transport Workers' Federation]

Thank you. No, it won't be a submission.

When we first became alarmed that the law was changing for seafarers and was going to affect our lives, it was 2005. You've heard a number of references to the former Bill C-15, which was an act to amend certain parts of the Migratory Birds Convention Act in CEPA. This concept of reverse onus and strict liability for our profession came really late into Canadian legislation. At that time we didn't find out until third reading. She was in the House, and it was at third reading. All suggestions were that an election was imminent.

There was a priority push on it to get it through the Senate, and it eventually succeeded. The Senate did hear us. We appeared before the Senate environment committee. It was a similar delegation; I was included. This time round, we learned about it in the newspaper article, about five weeks ago, I guess. Ms. Arsoniadis Stein found out about it and she alerted me. We started to decide whether we could muster an attack and try to deal with this one this time.

It was also mentioned that our first official consultation with the shipping industry took place yesterday. Environment Canada sent a delegation to the Canadian Marine Advisory Council. We've met twice a year in Ottawa every year for the last 35 years, the entire marine industry, Canadian and international marine industry. We have no qualms about saying that Transport Canada advises us of everything. They apparently didn't even know.

We think we've been treated rather shabbily, and not just this time; we put it on the record the last time as well. I hope that answers things.

[David McGuinty, Liberal, Ottawa South, ON]

Mr. Giaschi, could I ask you about the conflict here between domestic and international regimes?

You close by saying that you would, at the very minimum, expect that—if I understood you—international commitments as undertaken by Canada under UNCLOS or the CLC or the Marine Liability Act ought to take precedence over any emerging domestic changes that might be forthcoming from this government's legislation. In your understanding and your experience, isn't Justice Canada, the government, tabling a 140-page bill amending ten statutes? Aren't they supposed to make sure, through their 2,450 lawyers at Justice Canada, that this doesn't come to committee, doesn't come to Parliament without having been resolved first? How is it possible that you, as a practising lawyer, are going to govern yourself now and advise your clients as to which regime is supposed to take precedence?

[Christopher Giaschi]

It's possible. That's what we have to do, and laws are frequently not always consistent. It doesn't make it easy, but we can certainly do it. I don't want to suggest that Justice Canada hasn't done its job, or that the environment ministry hasn't done its job. These are difficult issues, and these conventions, especially UNCLOS, are huge conventions, and sometimes it may be expecting too much for people to be aware of every little provision within every convention.

I don't want to cast blame.

[David McGuinty, Liberal, Ottawa South, ON]

I'm not asking for blame. I'm just trying to get a sense of how it is that we are in the eleventh hour, just before going clause-by-clause, and you're raising fundamental problems here with the legal regime inherent in this bill. You're telling us we don't know what will take precedence: domestic law, as through the amendments of Bill C-16, or international conventions?

I'm trying to find out why this even got here without Justice Canada and the largest law firm in the country having solved these problems before this arrived. We've heard from Ms. Arsoniadis Stein that there are measures here that fall outside the ambit even of international comparisons, that other domestic regimes don't have similar measures, that this is going to have a serious net impact on investment in shipping in this country. We're then hearing from you that this is a mismatch of different attempts to cobble something together under tough environmental laws. I'm not sure what the theme is. We're now finding out before going to clause-by-clause next Tuesday that, in fact, it's incoherent.

What has to be done to correct the bill?

[Christopher Giaschi]

As for what has to be done to correct the bill, certainly there's Transport, and they are more concerned with the marine aspects. They are certainly very familiar with the marine legislation dealing with pollution. My guess is that if they become involved, they will be able to address some of these concerns.

[David McGuinty, Liberal, Ottawa South, ON]

Transport would be able to correct the bill?

[Christopher Giaschi]

I would think they'd be able to address some of these concerns.

[David McGuinty, Liberal, Ottawa South, ON]

And none of you were consulted by Transport?

Ms. Arsoniadis Stein.

[Kaity Arsoniadis Stein]

In terms of consultation from Transport, when I read about this bill in the paper, I immediately e-mailed the people from Transport who we work with and the director general at Environment Canada and his group. They were in London at the time for the IMO meetings. They e-mailed me back. They didn't know about this bill.

I spoke to them here yesterday, and they said, “Kaity, it was your letter that alerted us to the bill.” I was with the group in IMO at the MEPC 58 meetings back in October, and I can tell you that our Canadian Bill C-15 is raised on the international level.

I brought a few examples. I don't know if you'd like me to read from a circular.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

We have to move to Mr. Bigras, but I do have a question. Do you know who at Transport Canada? Can you tell us who at Transport Canada, or at what level, DG or ADM?

[Kaity Arsoniadis Stein]

The DG, and in addition to the DG, the people who work at IMO for Transport Canada.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Thank you.

We'll now move on to Mr. Bigras.

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

Thank you, Mr. Chairman.

This file has a very political component to it. We can indeed criticize the lack of consultation by the government, but once the bill is before committee, it is our responsibility as parliamentarians to study it. We may agree or disagree with the witnesses. That is why it is important, today, that we hear from both industry and workers affected by this issue.

I have read your briefs, and the prevailing point made in most of them is a request to the committee that amendments be tabled to restore the presumption of innocence. I think that this is quite important for both industry and the workers.

Have there been any Supreme Court rulings on the issue? There was this ruling made in 1978 involving Sault Ste. Marie, where the Supreme Court of Canada established a principle of strict liability in 1978. Since the adoption of the Canadian Charter of Rights and Freedoms, the Supreme Court has ruled that strict liability penalties do not violate the Charter, even if they can lead to a prison term.

The Supreme Court has already made a pronouncement with respect to strict liability. Consequently, strict liability does not mean a presumption of guilt.

You were right to refer to Bill C-15, but you could have also referred to Bill C-34. The wording of certain provisions in Bill C-15 lead us to believe that a judge could decide to absolve a ship's master, shipowner, chief engineer or director of any criminal liability provided that it could be shown that these individuals acted with due diligence. The acts therefore contain this principle of diligence.

As a last resort, the principle of diligence provided in Bill C-15 may enable you to demonstrate to the court that you have implemented the requisite measures.

I would like to hear your opinion on previous rulings of the Supreme Court and how such rulings could establish jurisprudence in the case before us. Should we not give consideration, as parliamentarians, to Supreme Court decisions when we examine bills? In all honesty, I am no lawyer. However, this does appear to be a legal argument.

[Christopher Giaschi]

First of all, I will say I am not a criminal lawyer; I am a maritime lawyer, so I don't deal with criminal courts.

The Sault Ste. Marie case you speak of is certainly a very well-known case that I remember from my law school days. But we're talking about something different here from that dealt with in Sault Ste. Marie. We're talking about pieces of legislation that have extremely large monetary penalties and that carry terms of imprisonment. This is a different creature from the standard quasi-criminal, strict liability sort of offence. Given the size of the penalties and because of the size of the penalties, the moral opprobrium that affixes itself to these kinds of offences really makes it much more in the character of a criminal offence than a quasi-criminal regulatory offence.

I think it's important to recognize too that internationally there is a very great deal of concern over the imposition of what are perceived to be unfair and unjust criminal sanctions against seafarers in respect to marine pollution incidents. Many of us are familiar with the Prestige incident, where the master was detained for...I think it was two years, and the Hebei Spirit in Korea, where the master and chief engineer are still being detained.

There's a real concern about this movement towards excessive penalties and imprisonment and imposing them automatically without really going through due process. It is almost as if we've forgotten the Magna Carta and all our history about due process and why it's important.

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

You said that the bill provides for a minimum prison term. Is that accurate?