Environment Committee on May 5th, 2009

[Renée Caron]

Mr. Chairman, I would like to flag to the committee members that the two issues regarding international law.... I am no longer a lawyer, so I'm not going to comment on legal points, but UNCLOS was one convention, and the civil liability convention was the other. I alluded to the civil liability convention earlier. I just wanted to flag that issue two and issue three in the letter provided by the acting ADM, Cynthia Wright, do address the issues of UNCLOS and the civil liability convention. I believe the members have the copy of that letter.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

We'll have to move on now to Mr. Bigras.

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

Thank you very much, Mr. Chairman.

I want to thank Mr. MacCallum for his explanations. He has provided quite a comprehensive treatment of this question. I think that proves there should have been evidence. Based, among other things, on the 1978 judgment of the Supreme Court, which concerned Sault Ste. Marie, and on the judgment concerning the Wholesale Travel Group Inc., you think that strict liability does not mean a presumption of guilt.

Is that in fact what must be understood from your presentation?

[Raymond MacCallum]

That's correct.

It's fair to say, and the courts have clearly held this, that when you impose an obligation on the defence, the requirement to do something assertive to avoid conviction—and that's what strict liability does; it imposes on the accused the obligation to prove on a balance of probabilities that they met the appropriate standard of care in trying to avoid the prohibited act—limits the presumption of innocence that's guaranteed under the charter. However, all guarantees under the charter are subject only to such limits as can be reasonably and demonstrably justified in a free and democratic society.

So yes, there's a limitation of the presumption of innocence when you impose a reverse onus, but those limitations can be justified, and the courts have generally held that they are, in a regulatory context.

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

And I want to get to those limitations. Without necessarily stating it with any certainty, the industry suggested to us that the 1991 judgment couldn't apply in the case before us. What certainty do you have? Perhaps the industry could institute proceedings to establish that the Wholesale Travel Group Inc. judgment does not have to apply in the case before us, with respect to the provision of Bill C-16 or to the act as such.

Do you have any legal opinions? What certainty do you have that this doesn't open the door to legal challenges?

[Raymond MacCallum]

Mr. Chair, there is never certainty in law, unfortunately. So it's a range of arguments, reasonable arguments on both sides of any issue, which is why ultimately we need judges to decide them. But in approaching the issues, we tend to look at, obviously, the leading authorities and all the lower court jurisprudence interpreting and applying those authorities. In the case of due diligence as a standard of liability in the regulatory context, the lower courts in almost any context are almost universal in accepting the constitutionality of the reverse onus provisions imposed across the board by every provincial and territorial legislature in the regulatory context.

Sometimes under the section 1 analysis, which is the Oakes test, which is the burden the government has to meet in demonstrating that it's justified in limiting a charter right or freedom in a particular context.... In some cases that analysis is much more particularized than in others, and sometimes general conclusions can apply quite broadly, and it doesn't depend so much on the context.

With respect to the due diligence defence, what the courts have almost without exception recognized consistently since 1991 is that when the object of the legislation is to require the participants in a particular sector of the economy or society to meet a reasonable standard of care, those objects are best met when we impose on those participants the reverse onus due diligence defence, because in order to be able to meet that in a situation where there is an accident, they're going to have to be able to show that they've put in place systems and procedures that are, within their knowledge, best to know whether they have done it, that demonstrate that they've taken reasonable measures to avoid whatever the prohibited act might be, in this case pollution in the oceans or in waters.

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

Ms. Caron, do you think that Bill C-16 is consistent with Canada's international commitments respecting the Convention on the Law of the Sea?

[Renée Caron]

I'm not a lawyer so I can't give a legal opinion. What I can say is that the Department of Justice did fully vet the bill through all stages of development. So we are confident that the Department of Justice did conclude that regarding everything from international obligations, charter obligations...the bill was appropriate.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Thank you.

We now move on to Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chairman.

I have two questions.

The first one is on section 280 of CEPA, on the issue of due diligence This is one of the issues that were raised, and it's one that's troubling me.

The argument is made that they're not unduly prejudiced with the strict liability because they can raise, potentially, the defence of due diligence. Yet as I understand it, the new wording being provided by the government for section 280 is saying that if either the master or the chief engineer is found guilty, both may be convicted. I'm finding that troubling, and I would appreciate somebody explaining that. If it was that either the master or the chief engineer may be found guilty and either the master or the chief engineer may raise the defence of due diligence so they can be absolved of liability, then that would tell me that either one of the them can raise due diligence.

I would appreciate having explained to me how exactly that provision is to be applied.

[Renée Caron]

I believe this is one of the issues that the shipping industry raised, which was a good point. It is now the subject of a draft government motion to ensure that this doesn't happen and that this issue is corrected. Under the current scheme it was either/or, and it's not supposed to be both. It wasn't intended to change that.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

So it may be a drafting error.

[Renée Caron]

Exactly.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

So we can anticipate another amendment coming forward.

[A voice]

[Inaudible--Editor]

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Okay, very good. That was one that troubled me.

On the second point, I appreciated your note on...okay, this may be what the letter of the law says, but here's how it will be applied. The thing that troubles me is, as parliamentarians, we're having to analyze this not as legal counsel but as legislators, so we need to know exactly what are the eventualities and how might this law be applied. I've raised a number of times the request that when the laws come before us, could we please also see any revisions to the enforcement and compliance policy. I think that would certainly allay my concerns and a number of concerns that I think are still not answered properly about the potential conflict between UNCLOS and other international laws that we have signed and ratified and the domestic law.

I noted that you didn't mention you actually consulted the seafarers association, which is troubling to me. I think they're particularly concerned and vulnerable because they're open to the charges.

When CEPA was first tabled, Environment Canada took it upon itself to actually table an enforcement and compliance policy so people actually knew what would happen with each of these offences, and what's the likely penalty, and so forth. There were also briefings with all the sectors that were potentially impacted. It seems like that practice has gone off the table.

I wonder if you could speak to that. I think it would certainly be helpful to me at the table and, I would think, to my colleagues at the table if we could know. We have a few paragraphs here. It's sort of saying, well, of course, the Attorney General will decide whatever; and if a person has no legal background at all, they're going to be really in difficulty understanding how the letter of the law here is applied, how international law might come into play, when does one take precedence over the other. It wouldn't be a bad idea, if you already have an enforcement and compliance policy on how these various provisions of the statutes are applied.... I think it would help me, certainly, in my deliberations.

Even having been chief of enforcement, I'm a little bit puzzled by what's written in.... “Oh, of course this won't happen.” Well, that's not very reassuring to the person who's worried about potential liability.

I'm just wondering if there's a possibility of an enforcement and compliance policy or some kind of document--even if only we received it--where we could have explained to us what is likely to happen with these provisions.

My third question very quickly is this. I'm disappointed that we couldn't have had somebody here actually speaking specifically to the issue of the potential conflict between international law and domestic law. I took the time to contact maritime law experts at Dalhousie University, and they have raised, with me, that there are potential conflicts, but it also goes to the pith and substance of the law. In other words, if some of these provisions are considered to be bird welfare and not marine pollution, then they don't conflict with the international law that deals with marine pollution. We are in a quandary here trying to say, okay, this looks all right, but we don't really have the briefings before us.

So that's one issue that I think would be really helpful to us. I think we anticipated that we would have a witness here from Justice actually speaking to that specific issue.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Could you answer that quickly?

[Sarah Cosgrove]

There are two points raised there, Mr. Chair. The first related to international law and the application of UNCLOS. It's a matter of reliable practice that the Attorney General is made aware if charges are ever laid in the zones of maritime waters that would trigger UNCLOS requirements and restrictions on the use of prisons. The Attorney General would not, at that time or during sentencing hearings, request prison. So the bill as drafted is not in violation of international law, and it is a matter of reliable practice that prison terms are not sought when they are in contravention of international law. There has been no history of that scheme not working to date.

In terms of enforcement policies, I believe Cynthia Wright answered that question when we first appeared. We've been focusing, obviously, on the development of this bill. If and when it comes into force, we would update existing enforcement policies and procedures. Those do exist now, and they obviously don't currently reflect Bill C-16. We definitely need to see how this evolves through the parliamentary process first. Those policies and procedure will then be updated, though.

Mr. Chair.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Mr. Warawa, please.

[Mark Warawa, Conservative, Langley, BC]

I will provide my time to Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you very much.

I want to begin by commending Ms. Duncan and thanking her for raising the issue of section 280 in CEPA. That's the one thing that bothered me as well. I was happy to see the new government amendment G-7.1, located at page 28.1 in the amendment package. It now makes that liability disjunctive.

I would like to hit on a couple of easy things first.

Mr. MacCallum, in the three cases you mentioned to us—R. v. Rube, R. v. Ellis-Don Ltd., and R. v. Martin— did the legislation in those cases involve liability for prison terms?

[Raymond MacCallum]

Yes, in Rube it was up to three years of imprisonment; for Ellis-Don, it was 12 months; and for Martin, it was five years.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

In that sense, it's on all fours with the legislation we're dealing with.

Secondly, Mr. MacCallum, in response to Mr. Bigras' question about what degree of certainty you feel on this issue, I want to verify that I heard the answer correctly. Did you say that the courts almost universally accept the position that you're proposing in analyzing Bill C-16?

[Raymond MacCallum]

Yes, that's correct.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Okay, that's pretty high, and quite acceptable—at least to me. I hope the others on the committee might agree.

The next easy question is about the sequence of events in the consultations. As I understand it, the bill was tabled, there were consultations, and then there were government amendments tabled to deal with those consultations—or at least with some of the issues in those consultations. Is that correct?