Proceedings of the Standing Senate Committee on
Fisheries
Issue 21 - Evidence
OTTAWA, Thursday, May 13, 1999
The Standing Senate Committee on Fisheries, to which was referred Bill C-27, to amend the Coastal Fisheries Protection Act and the Canada Shipping Act to enable Canada to implement the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks and other international fisheries treaties or arrangements, met this day at 8:40 a.m. to give clause-by-clause consideration to the bill.
Senator Gerald J. Comeau (Chairman) in the Chair.
[English]
The Chairman: I call this morning's hearing to order . Our witnesses today are from the Department of Fisheries and Oceans. Prior to hearing from our witnesses and beginning clause-by-clause consideration, does any honourable senator wish to put a question?
Senator Stewart: There were two questions that I intended to ask last time but time did not permit that. If I recall correctly, Mr. Wiseman, you made reference, when you were giving us your analysis of this bill, to "other agreement." I do not know whether or not you said "any other agreement." Why did you say that?
Mr. Earl Wiseman, Director General, International Affairs Directorate, Fisheries Management, Department of Fisheries and Oceans: Bill C-27 does more than provide the necessary enforcement powers to Canadian Fisheries officers to fulfil our obligations under UNFA. It also provides authority for our officers to take the appropriate measures under other agreements, such as the North Pacific Anadromous Fish Convention. It already provides measures whereby parties to that agreement, Canada, the United States, Japan and Russia, may take action on each other's vessels on the high seas if they are intercepting salmon. We have that right, and we have an obligation to do this, but we do not have the domestic authority under our law to do it. Bill C-27 will provide that authority.
Senator Stewart: Under what clause of the bill?
Mr. Wiseman: Clause 6(f).
Senator Stewart: Perhaps someone would read into the record the relevant words.
Ms Nadia Bouffard, Senior Advisor, Legal Issues and Canada-France, International Affairs Directorate, Fisheries Management, Department of Fisheries and Oceans: It reads:
6. The Governor in Council may make regulations for carrying out the purposes and provisions of this Act including, but not limited to, regulations
(f) for the implementation of the provisions of any other international fisheries treaty or arrangement to which Canada is a party, including any conservation, management or enforcement measures taken under the treaty or arrangement, including regulations...
Senator Stewart: When it says "provisions of any other international fisheries treaty or arrangement," does that mean any other treaty or arrangement now extant or does it extend to any fisheries treaty or arrangement that might be made in the future?
Mr. Wiseman: Both. It reaches forward and it covers existing.
Senator Stewart: Therefore, Parliament will be delegating power to the executive government to give effect to treaties and arrangements of which we are not now cognizant.
Mr. Wiseman: That is correct.
Senator Stewart: Would you refresh us on why the Canada Shipping Act is being amended?
Ms Bouffard: UNFA provides the obligation for flag states to take sanctions against vessels that do not comply with conservation management measures. It also provides for the possibility of putting sanctions on the master and officers of that vessel, nationals, essentially. We have implemented that for Canadian officers on vessels through the Canada Shipping Act because that is the legislation under which drivers' licences are provided to captains and officers.
In the Canada Shipping Act are provisions to sanction such "certificates" -- that is the word being used -- through an inquiry. The two provisions being amended provide for the holding of such inquiries and the sanctioning of those certificates where the captain or officers on the vessels have not complied with the conservation management measures of regional organizations.
Senator Stewart: It does not alter any other provision of the Canada Shipping Act; correct?
Ms Bouffard: No.
The Chairman: On 6(f), regarding future treaties, I assume that governments enter into treaties, and not Parliament. Is that correct? As such, we would not be delegating to government what is not already there, as I understand it. In fact, this would be quite standard, so do we even need to say this?
Mr. Wiseman:This bill projects forward elements of the Coastal Fisheries Protection Act to certain activities that would be sanctioned under international agreements on the high seas. Should we enter into a new agreement or modify an existing agreement, we would not have to come back to Parliament to get those powers. They would be given in this bill.
The Chairman: If this were not here, would we even have to come to Parliament?
Mr. Howard Strauss, Director, Oceans, Environment and Economic Law Division, Department of Foreign Affairs and International Trade: The power to enter into the treaty of course rests with the government. What this bill does is provide the domestic law for enforcement, and for that, one would have to go to Parliament. In order to implement and to enforce treaties that we may enter into in the future for conservation of fisheries , one would have to go back to Parliament.
The Chairman: Therefore, we are saying to the government, "We are providing you with the power for these future treaties. You do not need to come back to us in the future."
Mr. Wiseman: Perhaps I can give you an example. If things are moving slowly in the ratification and the full implementation of the UN agreement, Canada could enter into a bilateral or multilateral agreement with several other parties that to provisionally implement all of the obligations and responsibilities under the UN agreement, even though it is not in effect. That would be an agreement we could enter into. Without this authority, we could not do that because we could not take the actions on the high seas that we would be empowered to do with this legislation. Should we choose to do that in the future, we would have the authority. Should we choose to enter into any kind of special arrangement like that, as Mr. Strauss pointed out , within the purposes of the bill, which deals with fisheries conservation on the high seas, we would have the domestic authority for our officers to take appropriate action.
Ms Bouffard: This is a regulation-making power. The regulations that would be adopted would have to fit within the realm and the scope of the existing legislation. We could not create powers beyond what is currently there.
The Chairman: So you could not, for example, call the U.S. authorities and say, "Look, we want to start redividing Georges Bank into different kinds of sections"?
Ms Bouffard: No, that is not the purpose.
Senator Mahovlich: This is not a supplementarybut something that was bothering me when I left the meeting last week or the week before. You mentioned that the only country allowed to fish on the banks of that eastern coastline was Cuba. Then later on you mentioned that Portugal was fishing off the banks of Newfoundland. Are they both there, or is it just the one?
Mr. Wiseman: I had started to answer the question and raised the issue of Cuba and then we moved on to some other issue.
Let me clarify it for you. First of all, there are two countries, perhaps three, that will have rights to fish in Canadian waters. Cuba is currently there. France will have rights to fish on behalf of St. Pierre and Miquelon. The third is that, potentially, Japanese tuna vessels may be allowed to fish in our waters in the fall. This is traditional. These are quotas that they receive from the International Commission for the Conservation of Atlantic Tuna. These are not Canadian quotas. These three countries will be able to fish inside Canada's 200-mile zone.
Senator Mahovlich: They are international agreements?
Mr. Wiseman: Yes.
Senator Mahovlich: They are not Canadian agreements?
Mr. Wiseman: No. There is a bilateral agreement with Cuba and one with France, and we also have a bilateral agreement with Japan. Japan is fishing international quotas. The French are fishing quotas under a 1994 procès verbal negotiated, in part, by Senator Robichaud. The Cubans are actually fishing for Canadian companies. They are not fishing any Cuban quota. They are fishing a Canadian developmental quota. Those are the three countries that potentially will be licensed.
Russia may also have some vessels licensed this year to fish on behalf of Canadians in the silver hake development program. There have been no contracts signed that I am aware of, but they may come in. Those are the countries that might fish inside our 200-mile zone.
The members of NAFO have the right to fish beyond that 200 miles, on the high seas. Portugal is a member of the European Union, which is a member of NAFO, and therefore Portugal has a right to fish on the high seas beyond our 200-mile zone. They have legitimate quotas and they are fishing within the rules and regulations of the Northwest Atlantic Fisheries Organization.
Spain and Japan are also fishing. The Faroe Islands are fishing. Iceland is fishing. and The Baltic states have vessels fishing shrimp. There are a number of countries fishing out there, all within legitimate controls and legitimate fishing opportunities provided by NAFO.
Senator Stewart: You have your map, which is a very good one. Could you tell us, for example, where the Faroe Islands people are fishing for shrimp?
Mr. Wiseman: The shrimp fishery is largely in this area of 3M. There is fishing taking place for Greenland halibut along this part of the nose of the Grand Banks, and some down here as well. That is where the primary fisheries are.
Senator Adams: I would like to see some kind of agreement between the Government of Canada and the United States regarding the exportation from Canada of certain mammal species.
Presently the Alaskan Inuit sell sealskins to U.S. buyers. However, that does not apply to the Canadian Inuit, who are restricted from selling to the U.S. sealskins, ivory, even ivory carvings.
Can you offer us any advice as to how we might be able to enter into some negotiations with the U.S.? I mentioned my concern to the minister the last time he appeared before our committee. I know that certain provinces have entered into some agreements about exports of sealskins and other marine mammal-related products.
I know that some of the provinces have a kind of free trade agreement. How does that work?
Mr. Wiseman: The United States has the Marine Mammal Protection Act, which prohibits the importation of products from marine mammals. Canadian Inuit produce products from marine mammals that are hunted in the North, just as you pointed out that Alaska Inuit produce products. The Alaskan product is allowed in the lower 48, whereas the Canadian product is not allowed to enter the United States because of the restrictions under the Marine Mammal Protection Act. It is an issue that has been raised with the United States. It is an issue of concern, not only to the hunters of the North, but also people involved in the sealing industry. It is one that the Department of Foreign Affairs and the International Trade is working on with the United States, in terms of looking at the Marine Mammal Protection Act and ways to get exemption for Canadian product to enter, particularly product from the people from the North.
The Chairman: Under UNFA, the expression "clear grounds" can be found in the case of boarding. Under Canadian legislation, the term "reasonable grounds" is used. Therefore, Bill C-27 does not necessarily match what is under UNFA. Could other countries use different expressions? If so, is there not some inconsistency in how some countries will view UNFA and how we view UNFA? Are we within the framework of what UNFA said?
Mr. Wiseman: We are clearly within the framework of what UNFA says. The words that we are using are roughly the same. Ms Bouffard explained last week that these are words that are stronger, words that are understood by our court and consistent with the Charter of Rights and Freedoms here in Canada.
The real issue is the effect of the words, which is the actions that we will undertake. If we undertake actions that another party feels are inconsistent with the words of UNFA, they have an opportunity to challenge us through the dispute settlement process.
If you wish further explanation, Ms Bouffard could provide you with that.
The Chairman: I just wanted to make sure that it is within the provisions. There may be a difference between some of our regulations regarding contact, for example, where we say three days, and that of other countries. I am just trying to determine whether there is some kind of consistency here.
Mr. Wiseman: In terms of the words that we have used, the words have basically the same effect. There is a significantly different effect, however, between whether you say three or ten days. The fact is that the UNFA agreement calls for three working days. That is the fact that one must measure. Therefore, if another party said that they have a right to stay on for 10 days, if they were on for five days, they would have acted inconsistent with their UNFA obligations.
The Chairman: What happens now to Bill C-29, which was enacted in 1994? Does it just die out there or whither on the vine?
Mr. Wiseman: Bill C-27 amends the existing Coastal Fisheries Protection Act. The provisions of Bill C-29 are within the existing Coastal Fisheries Protection Act and are not being touched at all by this bill.
Second, Bill C-29 has a significant effect, in that it has been successful since it was proclaimed in 1994 in keeping all vessels of the flags that are covered by the regulations, the flag of convenient states and stateless vessels, off the nose and tail of the Grand Banks. From the day this was proclaimed and notification was sent to these ships, they left. They have never returned; they know that if they come back, they are libel to enforcement actions by Canada.
Therefore, that legislation has been very successful in keeping these vessels off the nose and tail of the Grand Banks.
The Chairman: However, if I recall, Bill C-29 raised some extreme concerns, for example, in Spain, where it was like waving a red flag. You know the history of waving red flags in Spain can cause some difficulty. So the bill is still out there. I am not suggesting at all that it should be removed, but it has been viewed by some countries as being inconsistent with international law and order. Are we doing this consciously or will it cause any red flag problems?
Mr. Wiseman: The views of Spain are understandable, in that we had amended the regulations under those provisions to add Spain and Portugal in 1995. We used those regulations to arrest the Estai, which led to the turbot crisis. It is understandable that the Spanish are not pleased because that legislation was used against one of their vessels. The resolution of the turbot crisis in 1995 went a long way towards ensuring that that kind of situation would not arise again.
UNFA has gone even further in giving us the necessary tools.
Senator Robichaud: The amendments made to the Coastal Fisheries Protection Act by Bill C-29 could still be used in cases where states were not be party to a fish agreement or are not part of a regional association, where they fall in the cracks. We could use those provisions to go after those people.
Mr. Wiseman: Under former Bill C-29, there is a regulation-making authority. We would have to name states, as we do under this bill, and put them on a list. There are currently six countries on that list. If we felt that it was necessary, we could always add countries. At this point, there does not appear to be any suggestion that there is a need to add any countries.
Of course, one of our primary objectives is to lobby other countries and work with them to get more ratifications to UNFA, to make UNFA the international norm.
The Chairman: My researcher has just pointed out to me that the listed states have excluded Portugal and Spain. That could change with regulations almost anytime. The red flag has been removed and the bullfight is off.
Mr. Wiseman: The red flag was removed in 1995. It was removed as part of the conclusion of the agreement at the end of the turbot crisis.
Senator Stewart: I want to go back to the language, "clear" versus "reasonable." In my understanding of what we have heard so far, these words are being regarded as virtually equivalent. I do not know about the jurisprudence in countries where they would use the word "clear" in their ordinary legal processes. When I hear the word "clear" -- perhaps it has something to do with my background -- to me it means demonstration, which in philosophy is what one does in geometry. You prove conclusively. It is clear. There is no room at all for doubt. It is a demonstration. It is a showing force.
Whereas "reasonable" admits the possibility of some doubt, but the kind of evidence that a reasonable person would regard as sufficient for future action.
Senator Mahovlich: Compromise.
Senator Stewart: No. It is like going into a new farm production, or buying stocks. You make a very shrewd guess, but you cannot demonstrate that that stock will go up.
Is the jurisprudence of other countries involved by this agreement such that it is perfectly evident that when they use the word "clear" they mean what we mean by the word "reasonable"?
Ms Bouffard: I do not think we have thoroughly assessed the other country's tests or standards required in order to exercise enforcement powers. What I can say is that Canadian courts have created a standard in light of the Charter of Rights and Freedoms that is very high. Unless you catch them in the act, I do not think the requirement can be for proof beyond a reasonable doubt -- which is the standard required in court when you are actually proving the case -- that the offence has been committed. It is a question of degree. The Canadian courts have required the standard to be fairly high compared to other states around the world.
Senator Stewart: Let us look ahead and ask: When the first controversy arises as to the meaning of "clear" as against "reasonable," where will that controversy take place and who will determine the outcome?
Ms Bouffard: Likely in a dispute settlement process, as provided for under the agreement.
Mr. Wiseman: The very first time this obviously could arise is if we take an action that another party feels is inappropriate, causing them to come back to us. We would have a bilateral discussion over the interpretation of the words, to see whether we could resolve between the parties what appropriate action could be taken on the basis of our interpretation and their interpretation.
If we came up with an understanding, then we would act, and everything would be fine. Should there not be an understanding or an agreement, that may have to lead to further discussions in a multilateral organization or a dispute settlement panel. However, that is part of a continuum of resolving the disagreement or interpretation, if there is one.
Senator Stewart: I assume that the United States uses the "reasonable" test and the U.K. uses the "reasonable" test. Problems might arise when you get outside the common law world.
Ms Bouffard: Yes.
Senator Robichaud: Supplementary to that, which version of the UNFA has precedence, the French of the English, or are they equal? In the English text, they say "following boarding and inspection when there are clear grounds," and in French it says, "il y a de sérieuses raisons de penser."
It is "serious reasons." It does not mean "clear." Could we argue the French text rather than the English text?
Ms Bouffard: With respect to the legislation, clearly both versions are of equivalent standard. One does not have precedence over the other.
Mr. Strauss: The six languages related to the international agreement are equally valid.
Senator Robichaud: In article 20 UNFA, in the English version, it says, "where there are reasonable grounds for believing that a vessel." They are not consistent within UNFA, because they use both "reasonable grounds" and then "clear grounds."
Senator Stewart: We can see that, but it may well be that, in practice, it means the same, and I think that is what we are being told.
Ms Bouffard: Yes.
Senator Perrault: Clear is not equivalent to reasonable.
Senator Mahovlich: If you look in the dictionary, you get two different meanings.
Senator Robichaud: That is why lawyers make good money.
Senator Stewart: In this world, we must test some things, and this is one we must leave to time for awhile.
Senator Perrault: Journey into faith.
Senator Stewart: I wanted to ask about the Japanese fishing of bluefin tuna in the North Atlantic. I live within about six miles of where the record bluefin tuna was caught. I assure you that the bluefin tuna fishery, when it is on, is a very exciting thing locally.
However, we have a quota. I have forgotten what it is, but it is not a high quota. When local fishers hear about the Japanese -- and probably the stories are exaggerated -- collecting bluefin tuna with sweep nets, they become rather agitated. Can you say something that will either support their agitation or sweep it away?
Mr. Wiseman: Perhaps I can provide some facts, and they can come to their own conclusion.
The Japanese do not use sweep nets, drift nets or any of those kinds of fishing technologies in the Northwest Atlantic when they are fishing tuna. They use long lines, which is basically the same type of fishing gear that Canadian fishing vessels use.
Senator Stewart: By a "long line" do you mean a line with several or more hooks on it?
Mr. Wiseman: Yes. Tuna and swordfish are highly migratory species. Under the law of the sea, and under the International Convention for the Conservation of Atlantic Tunas, these highly migratory species are managed throughout their range, that means within 200-mile zones off the coastal states as well as on the high seas. They are managed as a stock unit because the western bluefin, for example, range from the Gulf of Mexico as far north as off the coast of Newfoundland. They have an annual cycle. What is not known is whether some cross the Atlantic and are part of the eastern bluefin stock in the eastern part of the Atlantic and in the Mediterranean Sea. There are also southern bluefin stocks in the Atlantic and in the Pacific Ocean.
The main participants in the western Atlantic bluefin tuna fishery are the United States, Japan and Canada. They have historically and traditionally fished bluefin. They have the largest shares of the quotas which are distributed by ICCAT. Small quotas, four tonnes per country, have been given to Bermuda and to St. Pierre-and-Miquelon.
These quotas can be fished by these parties throughout the range of the stock. If the stock passes through a 200-mile zone, then the coastal state can either allow them to fish it in their zone, or they can exclude those fishers from their zone.
Our relationship with Japan has been a long and positive one, Japan is the world major market for tuna, particularly the bluefin. Japan is also the second largest market for Canadian fish products. Japan is also one of our strongest conservation allies. They did forego increases in tuna quotas several years ago for the benefit of Canadians and Americans who could fish more tuna at a time when tuna quotas were going down. They have also been cooperative on conservation matters with NAFO and in other international forums.
For a range of reasons, including our historical relationship, we have always allowed the Japanese fleet, which may be following tuna up along the eastern seaboard of North America, to send a small part of their fleet to catch, at maximum, 25 per cent of their quota as it passes through Canadian waters.
This fishery in no way takes place close to where you live, Senator. It is well beyond 20 miles, and it is generally closer to the 200-mile limit. It follows the curves of the Banks, primarily. Last year I believe only one, maybe two Japanese vessels actually came into our zone. We, as a matter of policy since 1977 when we established our 200-mile zone, have always been willing to allow Japanese vessels in our zone.
When they are in our zone, they must carry a Canadian observer which they pay for. That Canadian observer ensures that the catches are accurately reported, that they are catching only what they are allowed to catch, and that, in their fishing practices, they are following all of the rules. If they had used illegal gear or had undertaken or misreported any activity which was contrary to ICCAT rules or Canadian fishing rules, charges could be laid.
In fact, about two years ago, we did lay a charge against a Japanese vessel that was finning sharks that they were catching as a bi-catch. Under Canadian law, you cannot just cut the fins off the shark and discard the body. You must keep the entire animal. That vessel was charged and brought into court and a fine was paid. Their activities are limited. Their fishing practices are consistent with Canadian rules and under international quotas, and they in no way interfere with the opportunities of Canadian fishermen. If the Japanese were not allowed to fish in our zone, it would not provide one more fish -- or increase the quota -- for a Canadian. They are fishing a Japanese quota.
Senator Stewart: Are fishers from Japan the only persons who are allowed within our zone?
Mr. Wiseman: At this time, they are. Many years ago we allowed some other countries to fish shark in our water, but we have stopped that. Sharks are being overfished. There is no directed foreign fishing for shark taking place in our waters.
Senator Perrault: I am generally quite satisfied with the proposed legislative measure before us. It reflects action that probably should have been taken years ago. I am quite satisfied with the evidence I have heard.
The Chairman: My question has to do with clause 4, which amends section 7.01 (2) of the act. It states:
Subsection (1) does not affect any powers the protection officer may have in the case of
It stops there. However, the French version states:
[Translation]
Paragraph (1) does not have the effect of limiting the powers of the protection officer in cases where a vessel is being pursued in Canadian fishing waters.
[English]
The French version is a whole sentence, where the English sentence is incomplete.
Ms Bouffard: This is a problem related to the reprint from the House of Commons version of the bill. The original version that was tabled in the House of Commons contained the words, in the English version, "...in the case of hot pursuit." We have just placed a ascertain whether that is a typographical error.
Ms Barbara Reynolds, Clerk of the Committee: I have just spoken to Heather Lank to get some advice on this. She has asked me to double check with the law clerk as to whether it is a printing error or whether there was an amendment by the committee or an amendment at third reading. The official English version we have, which is signed by Richard Greene, and which is, "As passed by the House of Commons", has no words following: "...in the case of." That is the end.
Senator Stewart: This is an bill to amend, is it not?
The Chairman: Yes.
Senator Stewart: One could argue that the remainder of the sentence is contained in the act.
Ms Bouffard: This is not part of the original act.
Senator Stewart: Then it is clearly a problem.
Ms Bouffard: I suspect the problem came from the reprint of the bill because these words were in the original version tabled with the House of Commons. I am not sure about the procedure here.
Mr. Wiseman: Those words are included in the French version.
The Chairman: Somehow the copies that are before us, as signed by Richard Greene, do indicate that this is how he received the bill from the House of Commons. I am referring to the document we have here, and which I was about to sign today in preparation of our report to the Senate.
Ms Bouffard: There must be a procedure for editorial changes.
The Chairman: I suggest that we call our law clerk in the Senate and get his advice on how we should proceed. We may require to propose an amendment at the report stage or at third reading. I do not know if the bill must be sent back to the House of Commons. If this was passed, as is, in the House, then we would be, in effect, amending it; and it would have to go back to the House.
Ms Reynolds: I will call the law clerk. I think the question is: Is it an editorial change? The law clerk is usually concerned with whether an accent missing or a letter has been misplaced. In this case, there are a small number of words missing, and it is a judgment call whether a correction would be considered to be an editorial change or an amendment. With your agreement, I will go and call.
Ms Bouffard: Would it help you if I quoted those words to you on the record?
The Chairman: I am not sure that that would be of any help.
Senator Stewart: It might make our own record easier to understand.
Ms Bouffard: What I have here is a copy of the motion that the government tabled in committee which stopped at, "in the case of," but it was supposed to amend the provision in the bill as tabled at first reading which read, "...that began while the vessel was in Canadian fisheries waters."
The Chairman: This sounds important to me. That matches the existing French version. Let us, for once, make the French text take precedence over the English text.
Senator Robichaud: I did not notice that because I was reading the French version. What will we do?
The Chairman: We have placed a call to our law clerk. Someone is trying to track him down now. We have two options. The first would be that the law clerk would initial the amendments. He would have to explain what that process means. The second would be to draft an amendment which would mean that the bill would have to go back to the House of Commons. Whatever we chose to do, we should not do it without legal advice from our law clerk.
I have just finished speaking to Deborah Palumbo who does not have the legal authority to initial the first option. It is up to us, but I do not think we should be going ahead, if you are agreeable.
Senator Stewart: Is this the only defect?
The Chairman: No, as a matter of fact we just found another defect in clause 8 which amends section 16.2 (3). In the English version, that paragraph has two subparagraphs, (a) and (b), and those are not contained in the French version.
Senator Robichaud: The French version of paragraph 3 encompasses what is included in subparagraphs (a) and (b) in the English version.
The Chairman: Is that how it works?
[Translation]
Senator Robichaud: It says:
He is deemed to have obtained the authorization if the Flag State does not reply [...]
That is part A. Then:
[...] replies but does not investigate fully [...]
Ms Bouffard: Senator Robichaud, the French version mirrors the English version.
The Chairman: Parts A and B are missing?
Ms Bouffard: No.
The Chairman: They are reflected in the text?
Ms Bouffard: Yes, that's it. It's a matter of style.
[English]
The Chairman: Why would the English version be split into subparagraphs (a) and (b) but not the French version?
I will suspend the meeting until the law clerk has been found.
The committee recessed.
Upon resuming at 10:15 a.m.
The Chairman: Honourable senators, we called our law clerk, if you recall, about 20 minutes ago but he is apparently too busy to attend at this time. He is seized with a more important matter before the Internal Economy Committee. I am tempted to wonder what is so important that this bill has to be put on hold completely.
We have been able to find an available committee room in Centre Block, Room 160-S, where we will reconvene our meeting and see if we can get the law clerk to attend.
I have indicated the importance of what is before us today and the law clerk is aware of that.
Honourable senators, this hearing is suspended until 10:45 a.m. in Room 160-S.
The committee was suspended.
Upon resuming at 10:45 a.m.
The Chairman: Honourable senators, we have the law clerk, Mr. Mark Audcent, before us now. He will walk us through the possibilities with respect to proposed section 7.01(2) of the amendments.
Mr. Mark Audcent, Law Clerk and Parliamentary Counsel, Senate of Canada: Honourable senators, perhaps I could begin by reciting my understanding of the facts to ensure that it is the same as yours.
It appears that there was an amendment in the House of Commons. The amendment was correctly reflected in the French version and now reflects the will of the House of Commons as amended and sent to the Senate.
It appears that the English version of the motion adopted in the House of Commons is not correctly reflected because two lines have been deleted that were in the bill as tabled in the House of Commons and that the House did not order deleted. By mechanical or technical error, they were deleted in contravention of the order of the House of Commons.
Is that everyone's understanding of the facts?
The Chairman: Yes.
Mr. Audcent: The options for correcting a bill are twofold.
The first option is to correct the bill by amendment. If you wish to correct the bill by amendment, you can correct a small matter or you can make major changes.
The second option is to correct the bill through your officers. However, that is called a "correction of a parchment error," and obviously there is very limited room to make those sorts of corrections. Therefore I must decide whether that option is available to you.
A parchment error cannot be corrected if there is any possibility that we are going against the will of Parliament. In this case, the will of the House of Commons was to adopt the amendment, so their will is known and on the record.
With respect to the will of the Senate, it seems that it had no choice. There is an incomplete sentence in the English version, and yet in the French version the will of the Senate is expressed correctly on paper. I would have thought that amounted to a technical error, but if it is your will and your judgment that we should proceed in that way, we can do so.
When a bill has been before both Houses of Parliament, correction of parchment errors must be agreed to by the officers of each house. As the officer of the Senate, it seems to me that given the facts, this error could be corrected in the English version simply to bring it into line with the French. However, we also need the judgment of legislative counsel from the House of Commons that he believes this could be corrected by official correction. My belief is that he would agree, but I would need another five or ten minutes of your time to track him down and get his permission.
The Chairman: Please do.
Senator Robichaud: My opinion is that it can be corrected in that way. We have a bill that reflects, on the French side at least, the will of the House of Commons and what we want to do here. I would advise that we proceed in the way you have just suggested.
The Chairman: Are members of the committee in agreement that this would reflect the will of the House of Commons and also the will of the Senate?
Senator Stewart: I have a question on the basic procedure Mr. Audcent has outlined by which this bill came to us.
The bill that came to us would have been signed, I believe, by the Clerk of the House of Commons. Are you saying that he signed an imperfect bill?
Mr. Audcent: Yes. Imperfect bills do occur from time to time, and the fine line for officers is never to make a technical editorial correction when meaning might be affected. If meaning can be affected, then this cannot and should not be done editorially.
Senator Stewart: In your opening statement, you referred to the will of the Senate. Did you mean the will of the House of Commons?
Mr. Audcent: No, senator, I meant the will of the Senate.
The Chairman: At second reading.
Mr. Audcent: Yes. The bill has been brought to you. The French version is complete and has a meaning.
Senator Stewart: We know that second reading generally deals with the principle of a bill. Can we say that this clause as it now stands expresses the considered will of the Senate? I doubt it, at least in the English version. It is a minor point.
Mr. Audcent: I think this goes to a fundamental principle, senator, which is how far staff correction or editorial correction or correction of the parchment error can go. One needs to tread a fine line. We do not live in a perfect world and bills are not always perfect. If we insist on doing everything by motion, there will be bills where we will regret that decision. I personally believe the fine line is this: Is there any possibility that we are changing the meaning as viewed by a player?
My comfort is that you have the French version. I am only looking at the other House insofar as they would agree to sign the election or that their officer would agree to sign off. They already had the correct wording. They are in the comfortable position of having a House order where this language was already in their bill. It is more difficult for the Senate because we never saw the original English. However, we do now have the French. I believe I can take your direction to make the change by way of an officer's correction, if that is your wish.
Senator Stewart: When such a correction is made, what is the tradition? Would we be obliged to report the situation to the Senate?
Mr. Audcent: You are not traditionally obliged to report but you could if you so wished.
Senator Stewart: At what stage in the process does the competence of the law clerks to make such a change expire?
Mr. Audcent: At Royal Assent, senator. Corrections will be made to bills that have passed both houses when an error is found. The correction, once again, cannot affect meaning in any way.
Senator Stewart: Where would it be recorded if an error were found after the third reading in both Houses?
Mr. Audcent: There is a document called "the parchment", which is the original bill. That would be published as the as-passed copy and given to the Department of Justice to reproduce.
Senator Meighen: I appreciate that both the House of Commons and the Senate must sign off, but do we require the officer of the House of Commons to sign off before we make the correction? In other words, why can we not do it now and then have Mr. Audcent take it to the officer of the House of Commons? If he does not sign off, we are no worse off; if he does, the job is done.
The Chairman: I should like to avoid that kind of ambiguity, if possible, because it would place the status of the bill in limbo with respect to where it would sit on the Order Paper. I should like to clear this up this morning.
Senator Robichaud: We received an imperfect copy from the Clerk of the House of Commons that did not reflect the will of that house. We want the clerk to rectify the copy in terms of what really happened and reflect the motions in committee and what was accepted at third reading, which this does not.
The Chairman: Let me ensure that we have this wrapped up properly. We do not wish to proceed by the amendment route, which would prolong this matter for a number of weeks. We do wish to proceed by way of editorial correction of the parchment. With that in mind, I would then ask our law clerk to contact the law clerk of the House of Commons to see if we can get the necessary signatures so that this reflects the will of the House of Commons and of the Senate. With that in mind, we will suspend the sitting until Mr. Audcent has been able to contact his counterpart.
Mr. Audcent: Honourable senators, I will report back in 10 minutes. If I have found him, I will have an answer for you.
The committee was suspended.
Upon resuming at 11:15 a.m.
The Chairman: Honourable senators, Mr. Audcent has returned and I assume he has an answer for us.
Mr. Audcent: Honourable senators, I have had the opportunity to speak to the chief legislative counsel for the House of Commons, who is responsible there for corrections to the parchment. They have had the opportunity to examine the error, which they characterize as a printing error, and they have advised me that they would be prepared to proceed by way of correction to the parchment. If the Senate does that, they will do the same.
The Chairman: Technically, Mr. Audcent, would you sign the document this morning, or is that done at a later time?
Mr. Audcent: We will get a copy of the parchment and insert the correction, which I will initial. I will then send it over to the House of Commons and they will initial it, which must be done before Royal Assent. The bill has to go to Royal Assent with the corrections on the parchment.
The Chairman: I just want to understand the process. The bill I will be tabling this afternoon in the Senate will not have the law clerk's initials on it.
Mr. Audcent: You will be reporting the bill without amendment.
If it were changing this bill, I could not do it, since I am only an officer. Only you can change the bill. The fact that we are making a correction to the parchment does not mean that we are changing the bill. Therefore, I do not think you enter into that timing problem.
Senator Stewart: How often does it happen that the appropriate officers of the two Houses make parchment changes before a bill has had third reading? My uneducated guess is that this would normally happen after third reading. However, we have detected an error and we are reporting back a defective bill. Aside from what may be said by our Chairman in the chamber, the public assumption will be that we did not detect this obvious error.
Mr. Audcent: In answer to your first question, I am embarrassed to say that this is the second time recently that I have had to appear before a committee on a parchment error. Although it is a relatively rare event, we have now had two back-to-back. This issue arises most frequently once both houses have given a bill third reading and before it receives Royal Assent. Most errors would come to our attention at that time. They are often drawn to the attention of officers by the Department of Justice, and we must then decide whether or not it affects meaning.
Senator Stewart: Suppose the Chairman is asked a question about proposed section 7.01(2) of the amendments. We do not have a complete sentence there, and yet we are reporting the bill. In effect, we are asking the Senate to give third reading to a bill that is incomplete. What does the chairman of this committee reply in that case?
Mr. Audcent: You may wish to include in your report that I agreed that the parchment would be corrected by the addition of the following words. The chairman may want to do that in his speech when he reports the bill so as to incorporate it formally into the report.
Senator Robichaud: Incomplete sentences appear all the way through the bill.
Senator Stewart: I understand. This is how I tried to explain it to myself initially.
The Chairman: At the report stage, the procedure is that the Chairman simply report the bill without amendment. If the chairman makes reference to the fact that there is a clause in the bill that is being fixed, for lack of a better word, that changes the convention by which we make reports.
Mr. Audcent: I think you can go either way, senator. It would be your choice as to how you inform the Senate of this correction, whether you do it in your report or by way of your speech. That is at your discretion.
The Chairman: My preference would be to have it on the record rather than doing it at third reading. I would like to include a note, after submitting the report without amendment, that there is a slight change.
Senator Stewart: Perhaps we should report the bill without amendment but with an observation. An appropriate comment could be drawn up. We do not have to empanel ourselves as drafters. That observation could be written by yourself, the sponsor of the bill, and one member of the opposition. That would cover it.
The Chairman: We would have to do that immediately after the adjournment of this meeting because this bill is to be reported this afternoon.
Senator Robichaud: I am agreeable, but we are reporting an unamended bill.
The Chairman: We are reporting an unamended bill, but one that is flawed and sloppy.
Senator Robichaud: It is not the bill itself that is flawed. The copy we have does not reflect the bill as it was passed by the House of Commons. It is only a printing error.
Senator Stewart: The bill in its present form is sloppy and that is the problem. However, it would be very easy to draft a few sentences of commentary.
The Chairman: It is a small matter, but we should raise it at the right stage. If I am reporting a bill without amendment, I would just as soon make note of the correction before another senator raises the issue.
Senator Perrault: It is a typographical error.
The Chairman: I would prefer to let the Senate know that we are aware that there is a little flaw but it is in the process of being fixed.
Senator Robichaud: You must watch your words.
The Chairman: If you are agreeable, Senator Robichaud, we will meet after this meeting.
Senator Cook: Is it an editorial error rather than a change.
The Chairman: It is a printing or parchment error.
We will come up with some agreed-upon wording for the observation.
I will entertain a motion to accept this procedure, the parchment signature.
Senator Perrault: I so move.
Senator Meighen: I second the motion.
The Chairman: Is it your pleasure, honourable senators, to accept the motion?
Hon. Senators: Agreed.
The Chairman: Carried.
Are there any questions on the clauses of the bill?
Senator Stewart: I move that all clauses stand as part of the bill.
Senator Meighen: I second the motion.
The Chairman: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall I report the bill to the Senate with an observation?
Hon. Senators: Agreed.
The Chairman: Carried.
I wish to thank our witnesses for their patience this morning and throughout the study of this bill. It may have seemed as if we were nitpicking at times, but it was all done with the best of intentions.
The committee adjourned.(null)