Environment Committee on April 30th, 2009

[Kaity Arsoniadis Stein]

I think I'm confusing the question.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I think you are.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Okay, so we're going to move on to Ms. Sgro.

[Judy Sgro, Liberal, York West, ON]

Thank you very much.

I'm not a regular; I'm filling in for my colleague, who is in Vancouver this morning, so I'm coming in here cold on these issues, on both Bill C-15 and Bill C-16.

[An hon. member]

Well, you're welcome.

[Judy Sgro, Liberal, York West, ON]

Yes, thanks. I guess there are a few others.

But regardless of that fact, I have to tell you that I am taken aback by the comments all of you have made on something this important to Canada and by the lack of consultation you're telling me has happened. You're talking about going to clause-by-clause and getting Transport in to answer. I mean, it seems to me we're so far down the pipeline to now hear from four individuals such as you, representing an important industry for Canada.

How could it be that you're coming to this table today at this point and juncture with this bill?

[Mark Boucher]

Well, we're accustomed to early and meaningful consultation. My group only deals with the marine transportation sector, so we have a narrow or specific focus. We are the go-to people; we're consulted on a regular basis by senior bureaucrats. Our position is that the input we've provided over many years on transportation legislation has been valued and has been worthwhile. It works both ways. The explanations provided to us during these discussions and consultations have given us a comfort factor in regard to very controversial proposed legislation being introduced right across the spectrum on the marine transportation side and, for me and Peter on the seafarer side specifically, the issues that impact seafarers in all of the different modes we represent.

Yet, in this case, consultation was much later in the game than some of my colleagues indicated. It was only in the last week or two that we became aware of this. We were only given the opportunity to appear here.... We found out about this the day before yesterday, which is great, as we had asked to appear and we're pleased to do so. But the consultation at the bureaucratic level in the government only took place yesterday. That would appear to be why we're behind the eight ball at this end of the table.

[Kaity Arsoniadis Stein]

If I may, when Bill C-15 became law on June 28, 2005, our group was very concerned. I was hired in July 2005. My mandate was that we had to work with government to try to encourage an amendment to what this bill brought about. Now, when I was hired, we had legal opinions telling us this was a constitutional problem. So we actually went out to get another three legal opinions to make sure we had it right. Subsequent to that, I have been working very closely with Environment Canada and Transport Canada, even as an adviser to the team at the IMO.

During our informal discussions on this issue—which is very important to us, and they are aware of that—they said, you know, Kaity, had you come to us back when you were at the Senate saying that the only change you wanted was to restore the presumption of innocence, and not a shopping list of other issues.... For example, environmental wildlife officers were to be making the arrests, and the industry was concerned that people who didn't understand the industry were to be on the other side, enforcing. So a stack of requests was put forward. They said, had you come with that one request, we probably could have done something.

We've been working with them for four years. So we are shocked at how this came about, without any knowledge on our part. They're telling us they had no knowledge of it as well. So we're here again today before you, asking for a single amendment or a single statement that the right to be presumed innocent will be put clearly into all nine pieces of legislation we are now standardizing.

Thank you.

[Judy Sgro, Liberal, York West, ON]

I can't imagine this ever standing up to a constitutional challenge. This is Canada, for heaven's sake, and we do have this issue of presumption of innocence. This goes completely against that, it would seem to me.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Thank you.

We're going to move now to Mr. Warawa.

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

Thank you, to the witnesses, for being here.

I first want to deal with Bill C-15 back in 2005, which you mentioned. When Mr. McGuinty brought up the issue, I believe it was mentioned that there was limited consultation on that bill also. That was the bill dealing with birds polluted by oil at sea. It was during the 38th Parliament, and it became law in 2005.

Now, I'm sure you're aware that the due diligence provisions currently exist in CEPA and the Migratory Birds Convention Act. Are you aware of that?

I'm going to use your first name, Kaity, if that's okay.

[Kaity Arsoniadis Stein]

Kaity's fine, yes.

[Mark Warawa, Conservative, Langley, BC]

So are you aware that those provisions exist already?

[Kaity Arsoniadis Stein]

We're aware.

[Mark Warawa, Conservative, Langley, BC]

Did you submit your concerns that those provisions would be unconstitutional back in 2005?

[Kaity Arsoniadis Stein]

I think this came to fruition with the former Bill C-15, because the language in that bill amending the Migratory Birds Convention Act and CEPA was so absolutely specific to ships' captains and chief officers—basically those involved in shipping operations, directors, and officers of corporations. So it was very specifically aimed at that target group.

[Mark Warawa, Conservative, Langley, BC]

But that's not my question. Were your concerns that these provisions of due diligence were not constitutional expressed?

[Kaity Arsoniadis Stein]

I'd have to be honest that it was not something I turned my mind to look at.

[Mark Warawa, Conservative, Langley, BC]

Mr. Lahay, would you have a recollection of that?

[Peter Lahay]

That was part of our argument before the Senate Standing Committee on Energy, the Environment and Natural Resources.

[Mark Warawa, Conservative, Langley, BC]

Yes, correct. Thank you.

And so those concerns were raised back in 2005, and those are the same concerns, or similar concerns, that we're hearing today about the due diligence provisions.

[Kaity Arsoniadis Stein]

Right.

[Mark Warawa, Conservative, Langley, BC]

And is there a consistency there?

[Kaity Arsoniadis Stein]

There is a consistency.

[Mark Warawa, Conservative, Langley, BC]

Thank you.

Okay, my second question is that we've heard from you, Kaity, and others regarding unintentional actions or accidents, and briefs submitted to the committee seem to suggest that the statutes amended by the bill make it possible to convict shipping companies and individuals for accidents. The way I understand it, when a master or shipping authority can prove and demonstrate they've taken reasonable measures to ensure they do not contravene a law, they cannot be convicted of an offence. So if that's the case, how are they then left vulnerable to convictions for mere accidents?