Environment Committee on Dec. 13th, 2010

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Sure.

The second point I'd like to raise is that I fail to see where the confusion arises with respect to the second half of the amendment, which talks about inconsistencies or conflicts “between the provisions of this Act and the provisions of any international convention in force in Canada”.

I'm not a lawyer, but it seems clear to me, at least the way I read it, that if we've ratified an international convention and brought in a legislative instrument to enforce it in Canada, then this amendment here relates to the fact that there's a law in Canada that brings the convention into force. That's my understanding. I don't know if our lawyers or drafting clerk would like to add to that.

I don't have a legal background, and I honestly don't understand Mr. Woodworth's point about it not being correct to label this amendment subclause 6(2) when there's no subclause 6(1), and that if it's subclause 6(2) but not part of subclause 6(1), then it won't have the same implications.

I'm sorry, I just don't understand that, so if somebody could clarify it, I'd appreciate it.

[The Chair, Conservative, James Bezan]

I'll ask our legal analyst, Ms. Courtney, if she could respond to the question you raised.

[Kristen Courtney, Committee Researcher]

I'm not sure about the second question.

As for the first question, it depends on what is meant by “any international convention in force in Canada”. Canada is free to sign international conventions, and technically they're binding on us as international law. But if we don't implement them with domestic implementing legislation—

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

It's technically in force.

[Kristen Courtney]

As domestic law, no.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

If I understand this correctly, the way it's written here would give rise to the broadest interpretation. So if we'd signed a convention but hadn't ratified it and there was no legal instrument in Canada to bring it into force domestically, the fact that there is an international convention out there, whether or not it's enforced in Canada, would still have to be taken into consideration in the interpretation of this act.

Is that correct?

[Kristen Courtney]

Sorry, I didn't understand the question.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Okay. Mr. Woodworth is saying that this amendment seems to be too broad. When it talks about “any international convention in force”, Mr. Woodworth is saying, well, it could be in force internationally but not domestically, and therefore he didn't know if this amendment would be relevant if the convention weren't in force domestically.

I'm suggesting that maybe the intent was to keep it broad enough so that a shipping company, for example, who's following the rules of an international convention on shipping could use this clause as a defence if the convention weren't ratified by Canada or there's no enabling legislation for it in Canada.

[Kristen Courtney]

Maybe. But I think this relates to what we alluded to at the end of the last day, that an international convention that imposes duties on a party is different from an international convention whose domestic implementing legislation—such as the Marine Liability Act, which we enacted for some international conventions that we signed—affords protection to parties against liability.

So when you're talking about “inconsistency”, it's not exactly clear how that will play out. In this case, it's especially not clear how it will play out because we don't yet know what orders can be made as a result of a civil action that someone would bring against a shipper. The Marine Liability Act and the convention it relates to provide for liability only in certain circumstances. Unless we know what kinds of orders can be made pursuant to Bill C-469, then we can't know whether there are any inconsistencies or not.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

But this would only apply if there were an inconsistency.

[Kristen Courtney]

Or it would if there were a conflict, whichever.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

I don't know. Maybe Ms. Duncan can enlighten us.

[The Chair, Conservative, James Bezan]

I have Ms. Duncan on the list. She is right after you.

Mr. Scarpaleggia, you're done?

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Yes, I am.

[The Chair, Conservative, James Bezan]

Okay.

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thanks, Mr. Chair.

I don't profess to be an international law expert either, but I'll do my best.

What I would like to do is offer a friendly amendment. The amendment goes as follows in new subclause 6(2):

This Act is intended to ensure consistency with Canada's rights and obligations under international law. In the event of any conflict between the provisions of this Act and the provisions of any international law

--I would say “law” rather than “convention”, because sometimes they're treaties and sometimes they're another instrument--

in force in Canada.

The rest would remain the same.

It's my understanding--

[The Chair, Conservative, James Bezan]

Just for clarification, you would leave “inconsistency” at the end rather than “conflict”?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

No, I'm taking out “inconsistency”.

[The Chair, Conservative, James Bezan]

Are you at the very end of the paragraph as well?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Oh, sorry. Yes, that's very astute of you: “In the event...to the extent of the”.

[The Chair, Conservative, James Bezan]

This is fairly substantial.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I'm just basically replacing “inconsistency” with “conflict”.

[The Chair, Conservative, James Bezan]

A point of order, Mr. Warawa.

[Mark Warawa, Conservative, Langley, BC]

Mr. Chair, I wanted to confirm that with Ms. Duncan's amendment, or subamendment, there would now be another 32 minutes, possibly--eight times four--of debate to consider that. Is that correct?

[The Chair, Conservative, James Bezan]

That is correct.