Fisheries Committee on Nov. 25th, 2014

[Lawrence MacAulay, Liberal, Cardigan, PE]

Mr. Chair, what would “a person who resides” mean? Would you reside for a day, a week? I'd like that clarified.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

I can respond. In a normal statutory interpretation, “resides on” would mean that's where you live, as opposed to that's where you visit, which is why I wanted to amend this to incorporate those who would be frequenting that territory for other reasons than to try to observe the seal hunt. They would be criminalized by this law.

[The Chair, Conservative, Rodney Weston]

Thank you, Ms. May.

Mr. Kamp.

[Randy Kamp, Conservative, Pitt Meadows—Maple Ridge—Mission, BC]

Mr. Chair, I have to confess that I'm having a hard time knowing whether we should take this proposed amendment seriously, knowing that the Green Party opposes the seal hunt and would like no seal hunt at all. Whether my colleague sincerely wants somehow with the amendment to make it safer, I'm not entirely sure. But I know she's an honourable colleague and friend, so I'll take her at her word on this.

My problem with the amendment is that it adds another level of protection. Basically the regulation as currently amended by Mr. Kerr's bill would say that the prohibition, the regulation, does not apply to somebody who happens to live within one nautical mile of somebody who's conducting a seal hunt activity. This amendment would say that if somebody in their daily activities happens to be on this land that's one nautical mile away, it won't apply to them either.

My problem with it is there's so much in the amendment that is unclear to me. What does “to frequent” mean? How often do you have to do that thing in order to be within this caveat? Or what is your normal course, what is a daily activity, and how would that be interpreted by the courts?

I just think there's so much here that is too fuzzy for a regulation and that it would need more thought than we have time for here, so at this point, we're inclined not to be supportive of this.

[The Chair, Conservative, Rodney Weston]

Thank you.

Ms. May, did you want to comment?

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

I think it's very straightforward. I appreciate that my friend the parliamentary secretary understands that anything I do in this place would be honourable. This is a legitimate attempt to improve legislation that is already overreaching, may violate the charter, and at the least, it shouldn't criminalize people.

I look to the evidence in the testimonial that we just received from the Seals and Sealing Network that the 2012 ice conditions brought seals and the Newfoundland seal hunt closer to shore than in normal years. It's very possible that it brought it within one nautical mile, which would mean that the people who lived in and around Herring Neck, Newfoundland and Labrador might find themselves even when just going back and forth to the post office within one nautical mile of the seal hunt, thus violating this law. It doesn't make sense to have it be so restrictive that you're exempted only if you actually reside within one nautical mile of the seal hunt; your activity is exempted from being criminalized by this act.

I just think it's a very modest amendment. You're quite right, Parliamentary Secretary, my amendment doesn't go to the extent of our concerns about the hunt, but it is a legitimate.... This is the purpose of parliamentary committees, to fix laws that have been put forward without adequate study, and to avoid unintended consequences such as criminalizing people who accidentally, through their normal day-to-day activities, find themselves within one nautical mile of a seal hunt.

[The Chair, Conservative, Rodney Weston]

Thank you, Ms. May.

Mr. Chisholm.

[Robert Chisholm, NDP, Dartmouth—Cole Harbour, NS]

I would just say, with respect to Ms. May's comments about the constitutional concerns, that this certainly hasn't stopped this government on any other piece of legislation. I've heard that concern as well. We'll see how that plays out.

I am curious, though. This is a concern that I've heard as well, given the conditions that the herd in some cases is in close proximity to and certainly within one nautical mile of where people are living. I'm wondering, in terms of the concerns Ms. May just mentioned and that I've heard as well, what prohibits people who in the normal course of their activities are within one nautical mile just because the herd has moved closer to them, rather than otherwise.... What prevents them from being interfered with in their normal course of living, or perhaps apprehended or moved away or whatever? I wonder if the parliamentary secretary could give me some understanding of what happens in that case.

I think that's what the amendment goes to. If we don't agree on the amendment, then what's to stop people in their normal course of going outside their door, walking to the store or whatever, from getting apprehended or charged, or pushed away and told they can't go to the store because they're within one nautical mile?

I wonder if the parliamentary secretary could give us some idea of how that would be dealt with.

[Randy Kamp, Conservative, Pitt Meadows—Maple Ridge—Mission, BC]

I'm not here to answer that, but I think it's a solution looking for a problem.

Mr. Kerr's bill amends the marine mammal regulations, which say that you can't come within half a nautical mile. It's a very simple bill that changes the distance to one nautical mile. The same sort of exceptions apply. He hasn't changed any of those. Currently the way the regulations read is that it doesn't apply to you if you reside within half a nautical mile. He's now changing it to a mile.

Even with this half a nautical mile, I don't think there has been a problem for people who happen to be wandering in the course of their daily activities with being charged by a DFO officer for interfering with the seal hunt because they happen to be within half a nautical mile. I think that's even less likely to happen with a full nautical mile, so I don't think there is a problem that Ms. May is trying to solve here.

[The Chair, Conservative, Rodney Weston]

Mr. Lapointe, did you want to comment on this?

[François Lapointe, NDP, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

I can perhaps help my colleague with this question.

Mr. Kamp, I think you are looking at this from the wrong angle. If the distance is expanded to one mile and, as my two colleagues mentioned, snow melts like it did last year, this problem is more likely to occur—in other words, someone could be conducting activities on the shore with less than one nautical mile of ice. That seems to make sense.

I am not only thinking about merchants or individuals conducting activities that are unrelated to seal monitoring being within a nautical mile, I am also thinking about hunters.

Everyone knows everyone in those small communities. A hunter may realize that they are within one mile and that their brother-in-law is conducting activities a bit further. They will wonder whether they are allowed to hunt and will be uncomfortable because they will worry about their brother-in-law getting in trouble. They will not be able to go further because there will be no ice.

Mr. Kamp, your interpretation is sort of inverted. Considering that there is sometimes less ice, if the distance is increased to one mile, the probability of something like this happening increases. It does not decrease. I don't understand your reasoning on this. The logic of the situation is inverted. I think something is not quite right here.

[The Chair, Conservative, Rodney Weston]

Is there anything further?

Mr. Leef.

[Ryan Leef, Conservative, Yukon, YT]

I think Mr. Kamp touched on this quite well. When you have an act or a regulation, they outline the elements of the offence, and the elements need to be defined. These are very subjective variables, as Mr. Kamp pointed out. What constitutes “frequent”? What constitutes “somebody's normal course”? What constitutes “a daily activity”? What you create when you do that is an enforcement problem in trying to define those things. They get sorted out through court interpretation. As he noted, we have a solution here looking for a problem.

We can go to the nth degree in the “what if” scenarios, and try to create environmental conditions and our own interpretation of how law enforcement will apply the regulations. But whether it's provincial or federal law, we task our enforcement and compliance personnel with understanding the spirit and intention of the regulation, which is clear. It's to move people away from the hunt so that there isn't a safety concern, an obstruction concern, and an ethics concern. This isn't designed to target people living in a community, nor people going about the normal course of their daily lives.

While I appreciate Ms. May's intention here, when we try to get prescriptive with what we're doing, we can actually create some unintended consequences by adding more to the language than we really initially intended to. We need to rely on the law enforcement personnel in Canada to work within the scope of their discretionary powers, work within the scope of their discretionary application of the law. That includes understanding the spirit and intent in which the law was written, which clearly isn't to penalize, criminalize, prosecute, or investigate anybody who's heading to the post office, anybody who's walking within their community, anybody who's participating in the normal course of their daily life and not participating in intentionally obstructing or intentionally trying to observe the hunt for which they're not licensed to do, whereby there's already a regulation to do that.

If somebody finds themselves in the crossfire, so to speak, of being within one nautical mile of a hunt without a licence or without intention, I think we can leave it in the hands of the good people of Canada's law enforcement agencies to find out what their intentions were, and to apply the appropriate level of discretion to that particular scenario without getting prescriptive by way of law with this particular piece. I think if we do, what we're going to end up with is a number of assessments and investigations and court interpretations of what constitutes “frequent”, what constitutes “normal course”. Without exception, what we'll end up with is people who have full intention of obstructing the hunt, who have full intention of putting themselves in harm's way for an illegitimate purpose, trying to use the benefit of these words and say,“ I'm frequently here for three months of the year to observe this hunt. It's a normal course of my daily activity. I'm hired by this group, an organization, to be here. It is a part of my daily activity, therefore, this doesn't apply to me.” Then we're going to end up in a perpetual court battle over that, which will invite us back to this committee to create more regulations and laws to tighten up that language and start licensing what “frequent” and “normal course of daily activities” becomes for people.

I think we have to be cautious on this, and from that point of view, I can't support the amendment.

[The Chair, Conservative, Rodney Weston]

Thank you, Mr. Leef.

Ms. May.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

I just have to say, full marks to Ryan for being very creative, but I can't imagine that scenario. This is for local people who happen to be.... I'd like to remind this committee that this is a private member's bill, and it's being defended as though it had been developed through the justice department and had been properly scrutinized, but it hasn't. Mr. Kerr, who brought this private member's bill forward, isn't here today to explain himself. I find that unusual, but in any case, it's a private member's bill, which means it was never subjected to the same degree of analysis as if it had been a government bill.

It is not a bill that relies on mens rea. It's entirely a question of physical location. If you're within one nautical mile of a hunt, and you happen to be a person from the community who doesn't reside within one nautical mile, you're going to be violating this. We'd like to think there might be judgment calls, but this will criminalize people who happen to be within one nautical mile, whether they reside within one nautical mile or not.

I submit to you, again, that this bill is overreaching and likely unconstitutional. It's a private member's bill, as has been the trend. I think today's hearing, for me, satisfies a question that I've had. How many of the private members' bills we've seen from Conservative members of Parliament are actually government bills put forward to avoid the same level of scrutiny that they would get if they were government bills?

In any case, I don't think I have support from my colleagues, although I really had hoped that my friends on the Conservative side would think this was a reasonable, modest improvement to avoid unintentionally criminalizing people who happen to live near seal hunts.

Thank you, Mr. Chair.

[The Chair, Conservative, Rodney Weston]

Thank you, Ms. May, and to your point about Mr. Kerr's presence here, Mr. Kerr did appear before this committee to explain this bill fully in the initial stages of this committee's consideration of Bill C-555.

Are we ready for the question on the amendment? This is amendment PV-1.

It has been moved by Ms. May that Bill C-555, in clause 1, be amended by replacing line 1 on page 2 with the following:

(e) to a person who resides on or frequents, in the normal course of their daily activities, land within

(Amendment negatived)

Shall clause 1 carry?

(Clause 1 agreed to)

Shall the title carry?

[Some hon. members]

Agreed.

[The Chair, Conservative, Rodney Weston]

Shall the bill carry?

[Some hon. members]

Agreed.

[The Chair, Conservative, Rodney Weston]

Shall I report the bill to the House?

[Some hon. members]

Agreed.

[The Chair, Conservative, Rodney Weston]

Thank you very much. That completes clause-by-clause study.

Mr. Chisholm, you wanted to move your motion, I believe.

[Robert Chisholm, NDP, Dartmouth—Cole Harbour, NS]

Thank you, Mr. Chairman.

I would like to move the following motions. A notice of motion was provided on November 21.

I move:

That the Committee invite the Minister of Fisheries and Oceans to appear before the Committee regarding the Supplementary Estimates (B) 2014-2015 before November 28, 2014 and that this meeting be televised.

[The Chair, Conservative, Rodney Weston]

The motion has been moved by Mr. Chisholm. I don't have a copy of the motion here, but it's as read by Mr. Chisholm.

[Robert Chisholm, NDP, Dartmouth—Cole Harbour, NS]

Mr. Chairman, as usual there are important items in supplementary estimates (B), and it would be very worthwhile to have the minister before our committee. It's been some time. I don't know if we even saw the minister in 2014—maybe for a short time in January. Anyway, at the very least I think it would be fitting with the rules that we be able to deal with the supplementary (B)s with her before us so we can ask her questions. I believe Thursday is the last day before the supplementary (B)s have to be reported back. I think it would certainly be of value if we could have her come forward and answer some questions.