Fisheries Committee on Oct. 31st, 2016

[Martin Olszynski]

I'll back up just to say that, specifically, with that kind of quote there was a story in theVancouver Sun, published around 2014, by Larry Pynn. He had interviewed some people and the chair of the Fraser Valley Watersheds who suggested that was what he was seeing on the landscape. People had gotten the signal, now is the time, and no one is going to prosecute you. You can go ahead and do what you want to do.

I would suggest that the data figures support that sort of finding, especially, again, the fact that right in 2012, the minute the changes were announced, notwithstanding the fact that it was another year and a half before they were actually implemented, brought into force, the referral numbers declined right away. That, to me, suggests very strongly that individuals simply understood that—notwithstanding that the law still hadn't changed—the changes that were going to be coming, and as well, the changes to DFO's budget, meant that they didn't have to worry about it as much.

[Pat Finnigan, Liberal, Miramichi—Grand Lake, NB]

How does the minister interpret public interest, one of the factors he is required to consider? I guess that's the new part of it. I would like to hear from anyone who would care to answer.

[Martin Olszynski]

I go back a bit to what Dr. Favaro has said. It's hard to know how the minister interprets that. Certainly, the public interest of the concept is very common in Canadian law generally; and at both the federal and provincial levels it's a concept in national security, in environmental law, and pipeline regulation. For the most part, I think the conventional wisdom in terms of practitioners is that the public interest is basically what the minister says it is.

[Pat Finnigan, Liberal, Miramichi—Grand Lake, NB]

When this new act was brought in, do you know how much consultation took place? In other words, was it brought in front of a committee? How did that take place, in your recollection? I wasn't around. I'll ask anybody who wants to take a stab at the question.

[David Browne]

I was around. There was no consultation during the drafting of the change. We were unaware, a lot of people I talked to were unaware. There had been, though, about five years of consultation on the Fisheries Act, and my understanding is that a bunch of that consultation was input. But when it was drafted, I think it was news to everyone when it came out.

[The Chair, Liberal, Scott Simms]

Thank you, Dr. Browne.

Mr. Finnigan, I apologize. I took my eye off the ball for a minute and I gave you an extra minute, so I will apportion accordingly to the other parties. I'm being honest.

That being said, there's also one other thing I'd like to address and I'd like to do this on the record. Earlier, Mr. Donnelly, you brought up about Mr. Langer. We asked Mr. Langer to be a witness on October 27, in an email addressed to him from our clerk. We didn't get a response. He was also sent an email about five hours ago, before this meeting, giving him five different dates. I don't know if he's listening to this or not, but he has been invited and those five dates... If he's not getting these emails, he should probably contact us immediately by phone or other means, because we are trying to reach out to him.

[Fin Donnelly, NDP, Port Moody—Coquitlam, BC]

That's great. I appreciate that, Chair.

[The Chair, Liberal, Scott Simms]

Thank you for that.

We now we go to the Conservatives, and I believe you're splitting your time. Let me put it this way; in two and a half minutes—

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

Three. We get an extra minute.

[The Chair, Liberal, Scott Simms]

Right you are. It's nice to know you're listening.

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

And math isn't my strong suit.

[The Chair, Liberal, Scott Simms]

Mr. Doherty, for three minutes, please.

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

Sure. Mr. Olszynski, do actus reus and mens rea have to be proven in environmental law?

[Martin Olszynski]

No, only actus reus.

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

Could it be argued that the changes to section 35 made it easier to prove actus reus?

[Martin Olszynski]

I don't see how.

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

Fair enough. Clarifying the law, making it a little bit easier to interpret the legal standpoint at the court area, might be easier to then be able to prosecute any of the offenders of that. Is that not correct?

[Martin Olszynski]

I agree that as a general principle, clarifying the law usually means it's easier to prove actus reus, all things being equal, but I guess there are a couple of points that I think need to be made on that point. The first, of course, referring back to Mr. Sopuck's invocation of Supreme Court jurisprudence, is that the same Supreme Court jurisprudence that says that Parliament's jurisdiction is over the fishery, defines the fishery as a resource and as a system, and that the jurisdiction over the resource includes jurisdiction over all parts of the system. I think that's an important point to make.

And then, in terms of this subsequent issue, the wording of this legislation, I think it is arguable that there is some confusion about what exactly those words mean in the prohibition, as my colleagues' remarks have demonstrated, and I think the court would be similarly justified in wondering what it means. When we say “fish that are part of a commercial recreational or aboriginal fishery”, for instance, what is permanent...? These are not exactly clarifying terms.

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

Have you practised environmental law, or do you just teach it?

[Martin Olszynski]

I used to practice, for six years.

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

Did you pursue any major cases that this act would have been—

[Martin Olszynski]

Yes. Before 2013, I did work alongside other legal services members in prosecuting a metal mining effluent regulation charge.

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

One final question. Your slide that you showed with data on it goes back to 2012 with respect to the authorizations. Was there no other information that you could provide prior to the changes, to show what the level of authorizations were?

Then I have just one other point. Did you include all of Canada, or just the nine provinces that we saw in the snapshot?

[Martin Olszynski]

In terms of all the slides, figures 1, 2, and 3 are based on annual reports issued by DFO, so they apply across the board and they go back to 2001, 2002. For the information on slide 9, what I had to do—because again, there is no registry right now for Fisheries Act authorizations—was file an access to information request in 2015. For time management purposes, I had to somehow condense it, so I focused on the Pacific, central and Arctic regions, and then those six-month periods in each of those years.

That was just a resource issue. I didn't have the capacity.

[Robert Sopuck, Conservative, Dauphin—Swan River—Neepawa, MB]

Mr. Olszynski, you used the phrase that “our government lowered the environmental bar”. Can you give me a quantifiable environmental indicator that declined under our watch, and I don't mean enforcement actions, I mean a quantifiable environment indicator like the air quality, water quality, fish communities, and such.