Go ahead.
Evidence of meeting #43 for Fisheries and Oceans in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was questions.
A recording is available from Parliament.
Evidence of meeting #43 for Fisheries and Oceans in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was questions.
A recording is available from Parliament.
12:15 p.m.
Acting Director, Global Fisheries & Marine Governance Bureau, Strategic Policy, Department of Fisheries and Oceans
There is reference made there that despite the maximum amount of any fine, the court might provide for or require an additional fine to be paid. That is a decision that the courts would have to determine.
The concern that I think you're expressing, to my understanding, is what is being addressed by proposed new section 18.04.
12:15 p.m.
NDP
François Lapointe NDP Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC
I think it is Mr. MacAulay's turn to speak.
12:15 p.m.
Liberal
Lawrence MacAulay Liberal Cardigan, PE
I'm not against or for it, but it seems to me to be a strange way to write legislation. I don't know why you would put something.... Unless there's something.... It's hard to understand. The reasoning for it, I think is what we need a legal opinion on, for sure.
12:15 p.m.
NDP
François Lapointe NDP Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC
The text you pointed out to us largely answers my questions. Still, it says, in black and white:
If a person is convicted of an offence under this Act and the court is satisfied that, as a result of committing the offence, financial benefits accrued to the person…
What I am reading brings me back to my concern. It could be that an illegal catch worth $8 million is found in a warehouse but that those responsible are caught—“fortunately” because of Bill S-3, as Mr. Kamp says—before they can get the slightest financial benefit, because they had no time to sell the catch on the black market, for example.
From what I read here, if the judge cannot show that those people used the black market and made a profit of $2 million, for example, the fine is limited to $500,000. The judge could declare that the profits are illegal and the wrongdoers will unfortunately not be able to profit from it because they are going to have to give the proceeds back to the Crown.
According to what I see here, the judge will find it difficult to apply that argument, which I think is the right one. Instead, we are talking about people fishing illegally, making a profit of $2 million, being apprehended and still having $5 million worth of fish in their warehouse. The judge should not be forced to keep to a fine of $500,000. He should be able to get back the money that was made.
Something in this text seems to limit the judge, in my opinion.
12:15 p.m.
Conservative
12:15 p.m.
NDP
Yvon Godin NDP Acadie—Bathurst, NB
Given the importance of this bill, would it be possible to set it aside and bring in people who can assure of us that? As soon as we set a maximum, actually…In this case, one thing is really piling on top of another. You might well say that it really is not related and there is no certainty about it.
Once the wording of a bill is set, it is set. When it is voted on, it is voted on. It would be more certain if someone were to come and explain this to us and to tell us that we really are protected. The amendment could have referred back to the other provision and specified that it does not prevent clause 18.04 from being enforced, but that is not the case and it looks like some protection is missing.
12:15 p.m.
Conservative
12:15 p.m.
Liberal
Lawrence MacAulay Liberal Cardigan, PE
I agree. I just think that we want to be careful that we don't create a loophole that can make.... I'm not a lawyer, but if I were, I would certainly refer to that amendment—if it's passed—because it's stating that the maximum is $500,000. I think we have to find out exactly what effect it has on the legislation, because if it is as we think it might be, then I'm sure the government or nobody else wants this passed.... I would agree that it should be set aside, evaluated, referred to a legal opinion, or changed if necessary.
12:20 p.m.
Conservative
Randy Kamp Conservative Pitt Meadows—Maple Ridge—Mission, BC
I don't think I agree with that. I can assure the committee that this has been carefully considered by the Department of Justice, as well as the experts at DFO.
To clarify a question that was raised earlier, Bill S-3 is about amending the Coastal Fisheries Protection Act, and although it's true, as Angela said, that the act did not have any import prohibitions in it, it did have prohibitions in it. For example, subsection 4(2) of the Coastal Fisheries Protection Act states:
No person, being aboard a foreign fishing vessel or being a member of the crew of or attached to or employed on a foreign fishing vessel, shall fish or prepare to fish for a sedentary species of fish
and it continues. That's just one of the sections.
So there are the prohibitions about fishing in Canadian waters, obviously, and that's what the Coastal Fisheries Protection Act is largely about. There are penalties similar to the ones we see here in Bill S-3 that relate to those offences. They're in section 18 of the Coastal Fisheries Protection Act.
We're introducing new prohibitions about importing undocumented fish and putting in place these penalties that are similar, I think. Maybe Angela can comment more intelligently on that. For example, in that section that I just read to you, the penalties section says:
Every person who contravenes paragraph 4(1)(a), subsection 4(2) or section 5.2 is guilty of an offence and liable (a) on conviction on indictment, to a fine not exceeding seven hundred and fifty thousand dollars; or (b) on summary conviction, to a fine not exceeding one hundred and fifty thousand dollars.
Then there are some other penalties that are similar to the $500,000 that we've seen here. I don't see the problem that's being raised here, but perhaps Angela has some additional comments.
12:20 p.m.
Liberal
Lawrence MacAulay Liberal Cardigan, PE
Can I ask one question before she answers?
What is the need for this? I know it's your best intentions, but why do we need that amendment? It looks like it puts a cap on what the judge can do. I'm just asking the question. Perhaps there's a good legal answer for it, but I think we need to have that legal answer before we pass this legislation. I think the government would want to have that. Why is it there?
12:20 p.m.
Acting Director, Global Fisheries & Marine Governance Bureau, Strategic Policy, Department of Fisheries and Oceans
Bill S-3 introduces an import prohibition, so we have the introduction here of an amendment to include penalties for those import prohibitions, and the fines are indicated there. Then there is the opportunity, or the potential, for the court to exceed that maximum with the reference to proposed section 18.04.
The amendment that has just been introduced, under proposed section 18.03, is to deal with the new import prohibition that was discussed earlier.
In terms of how this is drafted and the amounts, and in particular proposed section 18.04, that is drafting that we see in other pieces of legislation. It's considered a standard way of expressing the penalties and also the potential for the court to consider the financial benefits and, therefore, to include an additional fine.
What's written there is certainly a standard drafting approach that has been taken in other pieces of legislation.
April 28th, 2015 / 12:25 p.m.
NDP
François Lapointe NDP Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC
I am not a lawyer, but Bill S-3 states quite plainly that there could be a larger fine than the maximum one of $500,000 if a person or organization has derived financial benefit from having sold the proceeds of illegal fishing. For someone to make a profit, the fish has to be sold.
I would be more comfortable if a legal expert told me if my fears are well-founded. Even if I reread clause 18.04, and today's amendment that includes a ceiling, if I think about all that, I see the following scenario unfolding. In the case of an offender who committed a serious illegal act, things can go quite quickly, as my colleague Mr. Godin said. With certain species, with a few cargo loads of illegal fish you can have stock that is worth millions of dollars.
Fortunately, Bill S-3 would allow us to track the offender right into his warehouse. In that case, because the individual would not have had time to sell two kilos of tuna, for example, and because he would not have derived financial advantage from the sale at that point, the maximum fine the judge could impose would be $500,000, if I understand correctly. And yet, that individual would have committed quite a major illegal act.
Mr. Kamp referred to other laws. He said that we could perhaps get organized using other legislation to ensure that this does not happen. I think that our responsibility is to ensure that the aspects covered by the current bill leverage the action of the courts in a case like this one. We should not say that somewhere there is an act that could be used to solve this problem.Saying that this will be settled by other legislation is almost an admission. I don't feel comfortable about it.
Consequently, I agree with Mr. MacAulay, who asks that we invite an expert witness to testify. I am receptive to the argument that other acts contain similar provisions. However, the problem remains the same. Could the scenario I have just evoked come to pass? Could we encounter a situation where someone has committed a highly illegal act involving millions of dollars in potential fines, but the fine is capped at $500,000 because of the addition of clause 18.04 and today's amendment? This seems like a serious problem to me.
12:25 p.m.
NDP
Yvon Godin NDP Acadie—Bathurst, NB
I will be brief, Mr. Chair. There are two questions that need to be answered.
Angela is a nice first name, Ms. Bexten.
You say that the situation is covered in similar laws.
I will wait for the experts to consult with each other.
12:25 p.m.
NDP
Yvon Godin NDP Acadie—Bathurst, NB
That is okay; I will wait. I think it's important.
If similar cases are covered in legislation, has it ever been challenged before the courts? If it has been but was found to be solid and without issues, that is good, but perhaps it never has been. For the time being we do not have an answer.
If the department states that it has been challenged that means that there is case law which would solve certain problems. If it has not been, I do not remember foreign fishers getting caught in Canada. Perhaps if we took a closer look this might not be the case.
Has the law been challenged and did it prove solid? I think that simply to solve the problem we could link this provision to clause 18.04 to ensure that the government has been given the power to go beyond the $500,000 limit.
Mr. Kamp, you say that this exists elsewhere, but if the law was never challenged before the courts, we cannot know if it is adequate and sufficiently robust. Our study of the bill is almost over. Today is Tuesday and everything could be said and done on Wednesday if experts appear, or if you, as a government, say that you have studied the matter, concluded that this is a good point and that this provision should be amended since that would be highly sensible.
There is nothing clearer than something spelled out in black and white. As my colleague Mr. Lapointe said, we are not lawyers but legislators. Our responsibility is to legislate. Lawyers like nothing better than provisions that are not specifically spelled out, in black and white. The two parties can then put forward their own interpretation and in those cases the lawyers make a lot of money.
I think that sometimes some people want the law not to be clear. We have the opportunity of making sure that these issues are clearly explained, in black and white. I'm happy I'm not a lawyer because in my opinion we have to consider the logical aspect of a situation and the profits that may be made. There is nothing worse than ambiguous cases. We asked questions, but these people cannot answer them. We devoted at least 15 minutes to this. We would like a reply, a clear reply as to wether this law exists, and whether it was challenged before the courts, and that it is solid and there is no problem at this time. However we heard nothing about this until now.
Imagine the situation when a similar case is submitted to a judge and the two lawyers have their own interpretation, and millions or hundreds of millions of dollars are at issue. The proceedings will last two, three, four or five years. The ship has time to rust and start to rot. Today, however, we have the opportunity to do something about this.
Since this is the last clause that is left, I would respectfully ask that we wait till Thursday to meet our experts. They will be able to enlighten us on the matter. I think that is also the wish of the government. I hope we don't have to remind you in four years that we warned you.