Madam Speaker, there is a lot of shooting going on here, but let me take this opportunity to debate Bill C-52, an act to amend the Fisheries Act.
As has already been mentioned, the bill would add the following section after section 9:
Every one acting under the authority of a permission referred to in section 4 or of a lease or licence issued under this Act shall comply with its terms and conditions.
It goes on as well to add the clarification:
For greater certainty, those permissions, leases and licences — including their terms and conditions — are not statutory instruments for the purposes of the Statutory Instruments Act.
On the surface this seems to be a benign addition to the Fisheries Act. What could be wrong with stating that someone who is issued a licence, for example, is expected to comply with the licence's terms and conditions? It would appear to be the government's position that this is little more than a housekeeping measure. I am well aware of the fact that the government made every effort to try to get this passed at all stages.
In the few minutes that I have I will explain why in my opinion this is not benign, and why Parliament should proceed very carefully. In order to do that let me begin by providing a little important background.
Although it is true that the legislation has been presented with little or no advance notice, its genesis has been actually several years in the making. I will attempt to make a long story short.
The Ontario fishery regulations contain a regulation in section 36(2) that provides the following:
No holder of a commercial fishing licence shall violate any of the terms or conditions of the licence.
Although it is stated negatively, one will notice that it is similar in substance to the bill that is before us today. As has already been pointed out, this regulation has troubled the Standing Joint Committee for the Scrutiny of Regulations for some time. In fact, this provision was dealt with by the committee in its second report in the second session of the 36th Parliament in 2000. It concluded:
The regulation not only lacks legal authority, but trespasses unduly on rights and liberties, and represents an unusual and unexpected use of the enabling authority.
Put simply, it was and is the position of the committee that regulations imposing sanctions or creating offences must be expressly authorized by Parliament. It is important to understand that because it is the same principle in play with the legislation before us today. Without this measure, a term or condition of a licence is not considered a provision of the act, so the violation of such a term or condition does not constitute a contravention of the act or regulations. However, the regulation in question in Bill C-52 makes it a legal responsibility to abide by the terms and conditions of a licence. It follows then that any contravention of those terms becomes a violation of the act and attracts the offence and punishment section of the Fisheries Act, section 78. The sanctions in that section are considerable so let me read them into the record:
an offence punishable on summary conviction and liable, for a first offence, to a fine not exceeding one hundred thousand dollars and, for any subsequent offence, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year, or to both; or
an indictable offence and liable, for a first offence, to a fine not exceeding five hundred thousand dollars and, for any subsequent offence, to a fine not exceeding five hundred thousand dollars or to imprisonment for a term not exceeding two years, or to both.
Those are pretty significant penalties, so we ought to be very careful here.
The Department of Fisheries and Oceans has continued to maintain that the questionable regulation is valid in spite of the continued disagreement of the scrutiny of regulations committee. It has argued in the past, for example, that the regulation merely imposes a standard of conduct or a requirement. The scrutiny of regulations committee concluded that the argument is best characterized as disingenuous.
In spite of the belief that the regulation was valid, the minister twice introduced a bill in the 37th Parliament that was intended to provide a legislative solution. Both died on the order paper.
To finally make a long story short, the scrutiny of regulations committee lost patience with the Minister of Fisheries and Oceans. On May 9 it issued a disallowance report to send a clear message that the offence-creating regulation was not authorized by the act and the process to have it revoked was started. That appeared to catch the attention of the minister and he finally introduced the bill that is before us today.
An obvious question is, does this solve the legal problems highlighted by the scrutiny of regulations committee? In fact, the committee was asked that very question when similar legislation was introduced in the last Parliament. The committee answered unequivocally, “We are pleased to confirm that the proposed amendments would, if adopted, remove the basis for the joint committee's objections”.
That is the good news. I do not think anyone disagrees that this bill will solve the minister's legal problems. However, and this is the crucial point, that does not mean Bill C-52 is good legislation. In fact, the standing joint committee recognized that other important issues need to be addressed. In that same letter from which I just quoted, the committee went on to add:
Our acknowledgment that amendments included in Bill C-43 --
--the bill number in the last Parliament--
--would resolve the Committee's objections to the legality of the relevant regulatory provisions does not imply an endorsement of those amendments. Particularly as regards the proposed section 10(1), which would impose a legal duty to comply with the terms and conditions of the licence, we can conceive that some parliamentarians might object to subjecting such non-compliance to penal sanctions that include imprisonment. To deprive a citizen of his liberty on the ground that the citizen has failed to abide by a requirement imposed by a public official in the exercise of administrative power, such as a term or condition of a licence, could be thought undesirable as a matter of legislative policy.
In fact, that is the question before us. As parliamentarians, do we object, do we find it undesirable that non-compliance of a requirement imposed by a public employee in the exercise of an administrative power can result in penal sanctions that could include imprisonment? I do not know about you, Madam Speaker, but when I go to jail, I prefer it to be for violating a law that has been passed by a parliament or for contravening a regulation that has been subjected to thorough scrutiny.
I am one of those parliamentarians that objects to putting this kind of arbitrary power in the hands of a public official.
Let me mention as well that I have the duty of being on both the fisheries committee and the scrutiny of regulations committee. Contrary to the way the member for Scarborough—Rouge River has recalled it, yes, we agreed that if this bill was passed it would address the concern of the committee regarding the legality. I did not hear any agreement to revoking that regulation.
Even in our last meeting we expressed the problems that were addressed in this letter. Yes, this solves the minister's legal problems and we know he knows that he has a problem. We still have a legislative policy issue that we need to resolve.
The government appears to be quite committed to getting this bill passed. The Liberals must believe it is important. In fact, as has been quoted already, the Minister of Fisheries and Oceans sent a letter to the joint chairs of the scrutiny of regulations committee on April 19. In the letter he referred to a letter that he had received from the Ontario minister of natural resources. In that letter the minister sent to the committee he said:
As you will see in Minister Ramsay's letter, revoking subsection 36(2) of the OFR [Ontario fisheries regulations] would have severe negative implications on Ontario's commercial fishery and threaten sustainability of Ontario's fisheries resources.In transmitting Minister Ramsay's letter I would like to impress upon the committee that revoking subsection 36(2) of the OFR would have serious negative effects on fisheries conservation and management in Ontario. I would also like to re-emphasize my intention to carry out a broader renewal --
The letter from Minister Ramsay went on to state:
Terms and conditions are currently the only mechanisms by which Ontario can establish allowable quota, areas where fishing can occur, designates who can take fish under a licence, reporting for commercial fishing licences. Without this provision, Ontario would literally have its hands tied with respect to enforcement of the commercial fishery. It is entirely likely that the revocation of subsection 36(2) would result in chaos in this sector and threaten the sustainability of our fisheries resources.
Of course, this is the threat the minister wants to leave before us. He will probably tell us on Wednesday that if we revoke the regulation and defeat the legislation we will be left with chaos in Ontario and, maybe by extension, elsewhere in the country. That, I think, is to misunderstand the situation a little.
The scrutiny of regulations committee responded to that in its most recent report. It states:
In closing, the Committee wishes to briefly address the statement by the Ontario Minister of Natural Resources that:
I just quoted that statement. The report goes on to say:
To the extent this comment suggests that disallowance of section 36(2) would impair the ability to impose terms and conditions of licences, it does not reflect a clear understanding of the nature of section 36(2). Disallowance of that section may change the manner of enforcing compliance with terms and conditions of licences, but would certainly not affect in any way the ability to impose such terms and conditions.
We need to ask and answer what remedies would be left to the government if the legislation is defeated, as I think it should be. As the letter has pointed out, the mechanism of imposing those terms and conditions is still there. It is another question whether the department should have that ability to impose those but it still does under the current Fisheries Act.
The government would still have the ability to impose these terms and conditions but what will the mechanisms be to enforce those? Under the act it still has the power to revoke or cancel a licence. I understand that the minister does not like that option but that is an option left open to him.
Another option, which has been mentioned in more detail by my colleague from Delta—Richmond East, is that we could expect the ministry, if it wants to regulate the industry, to put forth its regulations. It should go through the process, those things that are subject to the Statutory Instruments Act and gazette them. It should tell fishermen what they can expect if they sign on to these licences, what the terms and conditions will be and what they can expect if they violate these conditions.
This appears to me to be flawed legislation. The unintended consequences could be enormous. If I were a fisherman, I would be very concerned about this and I know many of them are. On behalf of many fishermen in my riding of Pitt Meadows—Maple Ridge—Mission, I will be voting against this.