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.