Environment Committee on April 30th, 2009

[Kaity Arsoniadis Stein]

It's because of the way the language is put forward. It says the crown has to prove that the substance entered the water. So what the crown has to prove is that the act occurred. At that point, it captures a group of people who are now guilty until they can prove their due diligence.

So it doesn't include the mens rea in the first part of what the crown is proving; it's only the actus reus. Then we get the reverse onus situation, and the result is that this group of people is now considered guilty until they can prove their innocence. That's our concern.

[Mark Warawa, Conservative, Langley, BC]

So we have a hypothetical. If there's an illegal discharge from a ship, and we now know that somebody on that ship is guilty of an offence, there is reverse onus.

[Kaity Arsoniadis Stein]

If I may, there are instances in shipping operations where there could be a leak for some technical reason, and it doesn't necessarily mean that somebody has been guilty of doing something. It could have been a malfunction of equipment. In that case, it's not recognized in the legislation that is being put forward.

[Mark Warawa, Conservative, Langley, BC]

So if they can demonstrate that they've taken reasonable measures to ensure the law would not be contravened, they would not be found guilty.

[Kaity Arsoniadis Stein]

And that is where they have to hire their lawyers and go through the process in court to establish that they were duly diligent; but in essence, they're on the hook, and if for whatever reason they're not able to show their due diligence, they will have a criminal record and a term of imprisonment.

[Mark Warawa, Conservative, Langley, BC]

Do I have any time left?

[The Vice-Chair, Liberal, Francis Scarpaleggia]

It's about 20 seconds.

[Mark Warawa, Conservative, Langley, BC]

Okay, I'm done then. Thank you.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Thank you, Mr. Warawa.

Monsieur Ouellet, ou Monsieur Bigras.

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

To tie into what Mr. Warawa was saying, it seems to me that there was a court decision for the case of Gulf of Georgia Towing Co. This was an example of the concept of due diligence being interpreted regarding an oil spill. It states:

In this case, a judge decided that the test of due diligence would not be met simply by the company hiring careful people and telling them not to leave valves open, since inevitably people will make mistakes.

That is also what you said, Madam. However, the following was added as well:

A spill would have serious consequences, and therefore the company would be required to take additional steps to prevent such a spill, such as in installing alarm systems or locking devices for valves.

It seems to me that a case has already been assessed, but that is not what my question was about.

My question was about the impact that such provisions may have on the seafarers themselves. I'm referring to section 13.15 of the Migratory Birds Convention Act of 1994, which states on page 145 that, under this provision, the master or chief engineer may be held liable for an offence committed by a person on board the vessel unless they can establish that they exercised due diligence to prevent the commission of the offence.

If an order is given by the master of the vessel to a worker who is aware of the situation and who feels that he cannot carry out an action that may have an impact on the environment and, as a result, make him guilty of an offence, would that not cause an internal problem?

If the order is given by the captain and the front-line worker on the vessel decides to carry out the boss's order, does the worker not risk being found guilty of an offence whereas the responsibility, on the vessel, lies with the captain?

Are we not accusing the front-line worker, whereas decisions must be made on the vessel, and be determined by the corporation?

[Peter Lahay]

Life on a ship is very complicated. There are all kinds of different procedures, operational procedures, company procedures, technical machinery, interpersonal relationships, levels of competency, all of those sorts of things. All of them will then interrelate. The proficiency of a crew will relate up and down the chain in terms of the performance of the safety of that ship. These are ships that are coming into Canada on a daily basis supplying our international trade and carrying out the commerce of Canada abroad and nationally.

I'm not a lawyer. I take very seriously the concerns that the government has, and Justice.

Mr. Woodworth, I couldn't begin to address your comments, I don't even understand what they are. But I do understand how life on board a ship works. I can tell you that there could be an accident. A crew could do something in error or even intentionally that would affect the captain and the chief engineer. Because we're talking about ships.... Foreign-going ships have 24 or 25 crew members on board them. Domestic ships usually have something less--a tugboat has five or six, or even three or four sometimes--so it's easier to manage the risks. The more people who are involved, the more complex a vessel, the higher the inherent risks. If a crewman has to defend such a thing.... Because it's one thing if the captain can show due diligence; it's the position of the government that he will be found innocent ultimately. But our problem is that he might have to pay $500,000 in legal costs, and that person has lost his house, he's lost his entire life. We think that it's targeting the wrong thing.

Maybe Mr. Giaschi would like to pick up on this somewhere along the line. We always refer to ships as “she”, and it's because we give ships a persona as a person. Ships are arrestable, so if there's a violation against a ship in the conduct of its carriage of cargo, then we go after the ship. This has changed all of that around, at least on marine pollution. In many other laws, I think if there was a bankruptcy case and somebody owed somebody money for fuel, or for provisions or stores, or crews' wages, or anything like that, we're not looking at reverse onus or anything like that; we're looking at real law, where people have to prove their case and make their case.

That's kind of the perspective. We see it from a reality point of view as workers on the front line facing this bill. I've got a couple of kids, and I can tell you I'm not allowing them to be seafarers--unless they resist their father. It's ridiculous. If a young person has any talent at all, they should probably not go into this industry. At the same time, Human Resources and Skills Development in this country is just starting a sectoral council because we recognize that our mean age for ratings and officers in this country is probably something like about 53 or 55 years old, just like the demographics across many things. Our ships are now already stopping because of lack of crew. We cannot in good conscience recommend the crew go back or train up to work on these ships in view of the present risks and the inherent increased risks.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Thank you, Mr. Lahay. I can assure you this committee has no intention of creating any family problems for anyone.

We'll move on to Mr. Calkins.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you, Mr. Chair.

I certainly appreciate the commentary that I'm hearing today. It's certainly good to get the perspective of the industry.

In the question I have--and this is to all members who are here--the line of questioning I'm going to go down is on aquatic invasive species. If you go the Department of Fisheries and Oceans website, it says here:

Aquatic invasive species (AIS) have already been responsible for significant devastation of some native fish species and fisheries in Canada. Annually, the problem is responsible for billions of dollars in lost revenue and control measures. Canada, with its huge freshwater resource and extensive coastline, is especially vulnerable to this threat.

If you go down and take a look at the number of aquatic invasive species that are listed on there, sea lampreys are credited with being introduced into the Great Lake regions through ballast waters, and zebra mussels in the Great Lakes area are attributed to ballast water. In your knowledge, has anybody in the industry ever been held to account for the introduction of some of these aquatic invasive species? We can talk about green crabs, we can talk about club tunicates, we can talk about the Japanese oyster, we can talk about round gobies in the Great Lakes, and the rusty crayfish, and the list goes on. Has anybody ever, through the legislation, whether it's the environmental legislation or a transfer legislation, or whether it's through the Canada Shipping Act, been held to account for the millions of dollars of devastation that aquatic invasive species have caused?

I'd like to hear your comments on that.

[Christopher Giaschi]

I think the difficulty has always been, and still is, to track back to who it was who introduced a particular species into the water. I think the answer is no, but there have been many individual cases where ships were found to have brought some sort of species with them that they shouldn't have, and where they've certainly been forced to account in terms of returning and cleaning up any contamination that might have occurred as a result.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Other than the enforcement provisions, which are being strengthened through the proposed legislation and amendments through Bill C-16, is there anything the industry could do to bring an added level of comfort to anybody sitting around this table that they're taking matters into their own hands to make sure this problem doesn't exist, so the enforcement route doesn't have to be used?

[Kaity Arsoniadis Stein]

I can assure you that this issue is very high on the agenda globally. At the IMO, we agreed on a convention in October, with enforcement very shortly. We have working groups on this, not only at the IMO level but through every seafaring nation. It is at the top on the agenda, it is a serious issue—we do not disagree. And there are measures and things that are being done in a very progressive manner.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Go ahead. I'm not going to cut you off if you have more to add.

[Kaity Arsoniadis Stein]

Further on that, we're not denying, we agree. The polluter has to pay. We do not take issue with that. If there is a pollution, it should be paid for. If it's a $6 million fine or a $12 million fine, we do support that. We are not here to challenge that proposition. The polluter has to pay.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

My argument then, coming from a law enforcement background, is obviously having enough tools and having enough enforcement capability. The answer is that nobody has been caught and nobody has been charged. I would submit to you that the challenge with this is that the laws, being what they are and being what they're being changed to, may actually provide law enforcement officials with a little more flexibility when it comes to actually bringing somebody to justice.

If the industry is serious about this, which you say you are, then I don't understand some of the issues with the provision of the changes that we have in this legislation. If you want the guilty people to be caught, brought to justice, and held accountable for some of these things, which I think most Canadians would agree are very serious matters, then the law enforcement agency has to have mechanisms available to make sure that they can, first of all, stop something from happening. Obviously ships can be brought in, we can stop the conveyance, we can bring them in, but there also have to be mechanisms that allow law enforcement officers to be able to do their job and get this before a court.

[Kaity Arsoniadis Stein]

We don't deny that. The fact that there is strict liability with massive penalties attached to it is one thing, but strict liability for imprisonment is another. So we're hoping it satisfies our parliamentarians that strict liability with massive fines will satisfy the concern, and that we allow the rule of law and the right to be presumed innocent to be applied to the seafarers and the people, and that we don't use strict liability for the criminal aspect of imprisonment.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Thank you.

We now have to move on to Mr. Braid.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Thank you, Mr. Chair.

I'll start with a few questions touching on a variety of issues, and if I have any additional time, I may provide it to Mr. Woodworth.

Starting with the issue of the consultation process, do any of you recall, during the election campaign in which our government announced commitment to a much stronger environmental enforcement regime--that was made with a fair bit of attention--

[Kaity Arsoniadis Stein]

Yes, I do.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Yes, okay. Good.

Secondly, I think we all agree around the table that a very obvious principle of our justice system in Canada is the presumption of innocence. None of us disagree with that. What makes you think that our process or our courts would throw that principle out of the window?

[Kaity Arsoniadis Stein]

I don't think our courts would throw that principle out the window. In fact, I think they hold it as probably the most fundamental principle, as do we as Canadians. That's why we're here today.

We have one case, the Wholesale Travel case, which is post-charter, that was decided on this issue. The Wholesale Travel case allowed for this situation.

I'd like to look at the Wholesale Travel case in a little more detail. When I read it in further detail and read all the opinions that experts in constitutional and criminal law have provided us with, I can see that it is a decision that is very divided. It's a 5-6 decision on this issue. The actual facts are very specific—and very specific to an individual—and targeted.

I have to say that when I read Chief Justice Beverley McLachlin's statement in that case, I take comfort that in Canada we would not throw out the presumption of innocence. But we don't want to have to get to the point at which we have a seafarer, in order to defend himself, ending up running through the courts to the Supreme Court of Canada with $1 million of legal fines behind him. When I see and read Chief Justice Beverley McLachlin saying that the penalty for imprisonment cannot, without violating the guarantees in the charter, be combined with an offence that permits conviction, I take comfort.