Past Session:

Proceedings of the Standing Senate Committee on
Transport and Communications

Issue 13 - Evidence, September 25, 2001

OTTAWA, Tuesday, September 25, 2001

The Standing Senate Committee on Transport and Communications, to which was referred Bill C-14, respecting shipping and navigation and to amend the Shipping Conferences Exemption Act, 1987 and other acts, met this day at 9:30 a.m. to give consideration to the bill.

Senator Lise Bacon (Chairman) in the Chair.

[English]

The Chairman: This morning we will hear from the Canadian Shipowners Association. We are pleased to welcome you today as representatives of the Canadian flagship companies plying the waters of the Great Lakes, the St. Lawrence Seaway and the eastern Maritime coast. You can give us the insights and views of an important segment of the marine industry. I know that the Shipping Conferences Exemption Act, the SCEA, does not apply to your members. We will hear you first, and then senators will have questions for you. Welcome to our committee.

Mr. Donald N. Morrison, President, Canadian Shipowners Association: I am Don Morrison, president of the Canadian Shipowners Association. We are pleased to appear before you this morning to discuss Bill C-14, the new Canada Shipping Act.

Our association, which will be 100 years old in 2003, represents the interests of Canadian-flagged shipowners trading on the Great Lakes-St. Lawrence waterway, the Arctic and eastern seaboards of Canada and the United States. Our nine member companies own and manage some 87 vessels. These include bulk carriers used for grain, iron ore, cement and other bulk commodities; self-unloading bulk carriers for iron ore, coal, limestone and grain; tankers for petroleum products; and general cargo and container ships for a wide range of consumer goods. Last year, in the year 2000, we handled some 72 million tonnes of cargo in the areas that we serve.

Our mandate is to promote an economic and competitive Canadian marine transportation industry and we do so in part by establishing strong working relationships with our marine industry partners, governments and local industries.

We have been associated with the reform of the Canada Shipping Act since 1995. We have supported the Department of Transport and have participated in all of the past consultations. We now appreciate the opportunity to contribute to the further discussion on Bill C-14.

I can reassert today, on behalf of the Canadian Shipowners Association, that we are very supportive of Bill C-14. We support the objectivities of the bill and are of the opinion that these objectives will be met. We do have some concerns and comments to bring to the attention of the committee, and I will briefly speak to a few of these, given our allotted time.

As the chairman mentioned earlier, I should point out that my comments are related only to the Canadian Shipping Act portion of the bill as the Shipping Conferences Exemption Act does not apply to our members and their shipping operations.

Turning to the pollution prevention responsibilities, we note that both Part 8 and Part 9 deal with pollution prevention and the responsibilities of two different government departments - the Department of Fisheries and Oceans and the Department of Transport - both of these for the same issue. Clause 165 of Part 8 denotes the Minister of Fisheries and Oceans as the responsible minister, while clause 185 in Part 9 denotes the Minister of Transport as the responsible minister.

While the members of the Canadian Shipowners Association respect the expertise of both departments, there is a concern regarding duplication of responsibilities, services, staffing and eventually, increased costs. These costs will ultimately be borne by the industry. It may be problematic to have two departments responsible for enforcement - both for the departments and for those in the shipping industry. Only one department should be responsible for pollution prevention, and in this case we would support the Department of Transport as that department.

Our members treat the environment with the highest regard and have incorporated every precaution in their planning and operations to avoid environmental contamination of any type. This has been a costly exercise, but we support it totally. Our industry depends on it.

Our members must remain competitive, and they have made every effort to increase their competitiveness through the use of technology and training and through consolidation of their services. Further savings to the shipping industry will have to come from legislative and regulatory efficiencies. We support effective planning and enforcement, but not duplication.

Next I would turn to the levels of enforcement, another concern of ours. A previous version of the bill did not reach the Senate. The version that did not reach the Senate had four levels of enforcement, including: indictable offences, summary conviction, administrative monetary penalties and the ticketing scheme. This would have proven to be cumbersome and difficult to administer efficiently without a large enforcement staff.

Accordingly, we are pleased that the previously proposed ticketing scheme has been deleted and that the number of indictable offences has been reduced substantially.

Our concerns about the administrative penalty scheme relate mainly to the lack of due process and the fact that so much appears to be left up to the yet-to-be-determined regulations.

Clause 231(4)(a) notes that "the burden is on the Minister to establish, on a balance of probabilities" whether a person or vessel did not comply in a specific manner." There is lack of due process that requires a better balance between probability and actuality. We can discuss this in more detail later.

Clause 233 gives the Minister of Transport discretion on how to proceed with a contravention, either as a violation or as an offence. With respect to the office of the Minister of Transport, we are of the opinion that here again there is a lack of due process. The violator, the person charged, should be involved in this process and the ultimate decision on how to proceed through an acknowledgement of his guilt or innocence.

We think this process needs to be given more consideration and clarity by defining under what circumstances a contravention should be dealt with as a violation and when it should be treated as an offence.

We note that clause 239 permits a five-year period for a notation of a violation or default, a suspension or cancellation or refusal to issue or renew a Canadian maritime document to remain on the records that the minister may keep respecting a person or vessel. If there is no public interest in maintaining a record of the violation or contravention, then a five-year period seems overly long and somewhat prejudicial to the party involved.

We agree that some period is necessary but that it should being substantially shorter. We note that the Aeronautics Act employs a two-year period, and we would suggest that a similar provision be given consideration.

In the same vein, clause 241 permits a two-year period during which a notice of violation can be issued. Again, this seems to be an inordinately long period of time that would undoubtedly lead to enforcement problems and administrative inefficiencies. We agree that some time is required for the decision-making and administrative processes, but this time should be kept to a minimum - months, not years - for the benefit of all parties.

Related to the previous section is the level of fines. We are of the opinion that the level of fines throughout Bill C-14 is too high. We ask that special consideration be paid to this section.

Persons and their vessels are liable upon summary conviction to fines of not more than $1 million, or not more than $100,000 or imprisonment of not more than 18 months, or not more than one year, or both, these coming from different sections. I refer specifically to Part 8, proposed sections 183 and 184, as well as Part 9, sections 191 and 192. However, the $1 million fine, or 18 months imprisonment, are common throughout the bill. A fine of up to $1 million against a person appears to be somewhat extreme.

These fines are double what was proposed in the previous Bill C-35 and are higher than those imposed on the air and rail modes. The Railway Safety Act maximizes corporate type fines at $200,000. The Aeronautics Act maximizes fines at $25,000. However, Bill C-14 sets an upper limit of $1 million.

In a similar vein, the Railway Safety Act sets minimum individual fines at $10,000. The Aeronautics Act has only a $5,000 maximum. However, again, Bill C-14 reaches a maximum of $1 million.

We acknowledge that the threat of a substantial fine or imprisonment will certainly act as a deterrent but we are concerned as to how the benchmark fine will be established and justified given the latitude in the range. There should be some relationship between the nature of the offence and the potential maximum fine.

In matters of transportation policy we have made the case to the Canadian Transportation Agency on several occasions that there should be an integrated national transportation policy. As you know, the principle of harmonization is the theme in the recently released review of the Canada Transportation Act. The same concepts apply to the level of fines - there should be reasonable assessment of the risk involved and the fines should be established accordingly, with some similarity across the different transportation modes.

In conclusion, the Canadian Shipowners Association is largely supportive of Bill C-14, with the exception of the brief comments that I have made this morning. Our members therefore urge you to consider these comments from the perspective that legislative and regulatory reforms must contribute to the improved economic performance of the marine industry; otherwise a disservice will have been done to the Canadian shipping industry in general.

The Chairman: Your major concerns are related to the introduction of administrative penalties. The stated reason for using them is that they have a better safety effect and this appears to have worked in the air mode. Which do you believe would have the better safety effect in the marine mode, the judicial penalties that have been used up to now, or the proposed administrative penalty?

Mr. Morrison: From the beginning, under the previous act and the consultations leading up to this bill, we have always pushed for the judicial route. We have not been comfortable with the administrative penalty route. With respect to the departments and the minister, we find there is entirely too much discretion in an area where we feel due process has to be followed. When we are dealing with fines of up to $1 million or imprisonment, we think the whole system should be based on the judicial process, not just the end result. We feel that an appeal to the courts must be available.

The Chairman: You are concerned about the lack of due process. Administrative penalties could be appealed to the courts if a carrier was not happy with the results of a review or later appeal the penalty to the proposed transportation appeal tribunal. Does that fact respond to your concerns, or are you still worried about it?

Mr. Morrison: We are still worried about it.

The Chairman: You say that keeping a notation of a violation on record for too long could be prejudicial to the party involved. How would that be prejudicial?

Mr. Morrison: It could affect his employment.

The Chairman: Is it the five-year term that is too much?

Mr. Morrison: Yes.

The Chairman: You also note that fines for violation in the marine mode are quite high relative to the air and rail modes. We are advised that the fines must be high enough to deter contravention of the regulations or that they must somehow relate to the costs of operation of each mode. What do you think of this approach to achieve compliance?

Mr. Morrison: I have to admit that the $1 million fine or 18 months imprisonment is scary. Whether or not it will help achieve more compliance than a lower level fine or fewer months in jail, I really cannot say. We have not done that kind of risk analysis.

We just know that when we compare it with the other modes and the responsibilities of people in the other modes, whether it is in rail or air, we feel those responsibilities are certainly equal to the ones in marine. We feel that to saddle us with the highest fines in the transportation industry through this legislation skews it in our disfavour.

Senator Oliver: Mr. Morrison, thank you for your presentation. It was short, succinct and very clear.

I note that you favour the act in its present form, although you made a few comments in your presentation about it and some of the clauses in it. One of the things that struck me is that one of the first concerns you had was the duplication, as you call it, as between the Transportation Act and the Fisheries Act. I am wondering whether some of those so-called duplications could not be overcome by the regulations, which, as you say, are yet to be proclaimed.

What is your normal practice when there is legislation? Do you talk with the bureaucrats about the form of regulations and the measures you would like to see in them? What is your current intention with respect to this bill? Once this bill receives third reading and Royal Assent, what do you intend to do about making some of your views known on the form of some of the regulations?

Mr. Morrison: Generally speaking, departments involve us in consultations when setting up regulations. We expect nothing different from either department in the case of this bill.

Our concern is twofold. First, we feel that having two departments involved is less efficient, more time consuming and more costly for us than having one department involved. Second, marine policy is somewhat split between two departments. It is split between Transport Canada and Fisheries and Oceans. Fisheries and Oceans has responsibility for the Coast Guard, while Transport Canada has responsibility largely for safety, security and marine policy.

However, they can affect each other. With regard to certain issues, we have to deal with both departments. We have been told by ministers, "The shipowners should be happy with this because you have two seats at cabinet." Our concern is with the fact that, sometimes, when there is not agreement, we have no one representing us. For clarity, efficiency, cost and timing we would prefer that one department is involved.

We have had a history of this since the Canada Marine Act of 1996. About a year ago in Toronto, the Minister of Transport suggested that it would probably be more efficient if responsibility for the Coast Guard were back in Transport Canada. That is just a plug for what we want.

Senator Oliver: He will probably read the transcript and get your point.

On page 4 of your presentation you referred to the limitation periods or the periods of notice. As you know, there are in Canada all kinds of limitation statutes and limitation acts giving a person a right to file a claim or make a lawsuit over quite extended periods of time. For a great many general matters, the limitation period happens to be six years. Even for something like an injury case in most jurisdictions in Canada, it is two years. I do not accept your point that a five-year period seems overly long and somewhat prejudicial to the parties. It is not that far out of line.

Do you have some particular instances or some problems you would like to address that would help show me why this might be significant?

Mr. Rejean Lanteigne, Vice-President, Operations, Canadian Shipowners Association: There are it two limitations in the bill. One is a limitation of two years for action to be taken, and we have no comments to offer on that one. We think that that is reasonable.

There is another limitation. The violation of a person charged under the monetary penalty will stay on his record for five years.

Transport Canada certifies all mariners for this country. The record of a master, an engineer or even a deck is maintained by Transport Canada. Every five years, your professional qualifications are subject to renewal, as with aircraft pilots.

Senator Oliver: Is it not important for the public to know that?

Mr. Lanteigne: It is important for the public to know that there was a violation. Is it important to the public and detrimental to the individual that his violation remains on his record for five years? We think that period is far too long.

It was a violation. The person was charged and paid the fine. The debt was paid to society. That should be the end of it.

Senator Oliver: It is a matter of debate. You have explained it and I understand it. I do not agree with it, but I thank you for your answer.

Mr. Lanteigne: As Mr. Morrison said, we think that having violation on record for that long a period would be extremely detrimental to the employment of the individual. We are not disputing the fact that it should be recorded.

Senator Oliver: My final question deals with page 5 of your factum where you talk about the Railway Safety Act, comparing other legislative fines to the fines in the legislation that governs you. The Railway Safety Act stipulates $10,000 and the Aeronautics Act stipulates $5,000. It seems to me that the amounts in the Aeronautics Act are too low. Raising that is only prompting legislators to look at it and try to bring them up to the standard that they should be at, perhaps like yours.

Do you not find that those are perhaps too low given the circumstances of today's age?

Mr. Morrison: Perhaps there needs to be a better balance. I still do not think that we need to go to $1 million.

Senator Callbeck: I marked two areas I want to ask about following the questions of Senator Oliver.

I want to follow up on pollution prevention. You express your concern about the duplication of responsibilities, increased costs and so on. It is already split between the two departments. Under Bill C-14 it will be split. Is there any difference between what is stated in the former bill and what is this in this legislation?

Mr. Lanteigne: I like to draw your attention to a significant difference between the current legislation and this bill, if you bear with me for a minute.

Part 8, for instance, authorizes the Minister of Transport to give direction to a ship that is in Canadian waters. That ship must abide the minister's orders to either get out of Canadian waters or enter a port or go to other places. The minister has the power to direct a ship to do what the Transport minister decides is best for the protection of Canadian waters.

You find in part 9 that those same powers are given to the Minister of Fisheries and Oceans. These are far-reaching powers. Two ministers possess this power under this bill, which is different than in the current legislation. That is not only duplication, but ultimately could lead to systematic problems in running and operating ships in Canadian waters.

The ministers' responsibilities are significantly different. The transport department deals with commerce and transportation, and the fisheries department is concerned with protection of the seas, water resource, fish, Coast Guard and the protection of the assets of the seas.

We find this sharing of responsibility detrimental to the safe and efficient operation of ships. It is misdirected.

I could also give you physical evidence. Once in a while we do spill oil. It is not a big amount; it is litres. Canadian ships do spill oil by accident. As soon as we do so, we report it and then there is a whole mechanism of responses that start. Within an hour, this action starts to protect the shore, fish, the infrastructure along the shore, birds and citizens. The steps are all there.

We have seen in recent years duplication taking place where you have five or six of Transport Canada officials coming on board and telling people what to do and not do. That is okay. However, a similar group of persons come from the Coast Guard and tell you what to do and not do. That is not efficient in an environment where have you must respond quickly. As a matter of fact, it is very detrimental to an efficient and effective response.

Although the two departments speak to each other and have these agreements between them, on the front it leads to inefficiencies. That is not acceptable.

Mr. Morrison: We should underline that we are not challenging the government's responsibilities for level of direction or control in regard to pollution control, pollution prevention and environmental control. We are simply pointing out the inefficiencies of having two different departments and two different ministers with the same responsibilities.

I can assure you that at the ministerial level, issues may be dealt with in a very efficient manner through quick conversations. However, at the departmental level it is much more difficult. There are groups of people responsible on one side and groups of responsible on the other side. There are full administrative groups having to look at the same thing at which another administrative group may be looking.

They must come up with a plan. They must agree with each other's plan, and then have that enter the industry. Being on the receiving end of two departments, for the same issue, is at best difficult for us.

Senator Callbeck: Bill C-14 will have two departments involved. Is there any difference between the current act and the bill as to how those two departments would carry out their roles?

Mr. Lanteigne: There are differences between this and the current Shipping Act. That is a significant difference to the regulatory and enforcement power granted to the Minister of Fisheries and Oceans compared to the previous bill. That is an erosion from Transport to Fisheries and Oceans that we have seen in last five years.

For a matter of convenience, the federal government decided five or six years ago that the Coast Guard should be part and parcel of Fisheries and Oceans and not Transport, so the Coast Guard was moved to Fisheries and Oceans. At the same time, we saw some of the legislative powers and regulatory powers also came along. That was a systematic erosion of Transport's involvement in the marine area, to our detriment.

We are not saying that they do not do a good job. We are saying that on the front of the events, there is a significant duplication of efforts, and there is an unwritten competition between the two departments, not in this town, but certainly on the front.

Senator Spivak: I must say that I disagree with my distinguished colleague about the need for this to be done, that is to say, to eliminate duplication through regulation.

I would also suggest, in contrast to what you are presenting here, Mr. Morrison and Mr. Lanteigne, that it is very important for Fisheries and Oceans to have the powers given to it. I say that because this department has the triggers for environmental assessment and it has the responsibility for all inland and navigation waters.

We are seeing increased shipping and more ballast waters bringing in exotic species. It seems to me that that does not fall under the responsibilities of Transport, which are for commercial purposes. Since Fisheries and Oceans' mandate is for the protection of the waters and the species that live in the waters, it is extremely important that the department does its job properly.

I must say that efficiency is also important, and industry should not have any uncertainty because then I do not think you can protect the waters properly. However, I respectfully suggest that the solution that you are presenting, that is, giving more powers to Transport, is entirely in the wrong direction. There must be other ways of achieving it. We all know that bureaucracies can, at times, be inefficient and duplicative, but there must be other ways of doing this to achieve both objectives.

That is to say, achieving certainty and clarity and efficiency, from your point of view, while leaving the burden of pollution prevention and protection with Fisheries and Oceans. They are the people with the experience; they are the people who are seized of this responsibility.

To shift it over to a department that is primarily concerned with commerce is absolutely not the right thing. Do you have any other suggestion apart from the option that you have given us, which is shift it to Transport, or to fix it in the regulations which have no oversight from the parliamentary body? What else could you suggest?

Mr. Morrison: I can respond to your comments by thanking you for bringing up the issue of ballast water, because we can use that as an example. We faced very difficult legislation from the State of Michigan that would have affected all Canadian and foreign shipowners and shippers shipping through Canada. We had difficulty in getting either department to move or to support what we felt should be done within the Great Lakes. Ironically, it was the Canadian industry that sat with the senator from Michigan to help design a plan, his "Ballast Water Act," because we could not get agreement between the two Canadian departments that had the responsibility.

We are not here to criticize, and I do not want that to sound as a criticism. We understand they have their own time frames and timelines. However, it is incredibly difficult for an industry when you do not have one-stop shopping.

Senator Spivak: I understand your point. I know that in industry, there is total quality management and there is management by objectives. I only raise the suggestion that it is not the solution to put it over to Transport. I would suggest to you that there might be other ways. I have no doubt that it is probably inefficient.

I would also point out that wherever there is harmonization, as there has been in the environmental field, it has meant lack of enforcement. People delegate down to another authority that does not have the means to enforce, and we are not getting better environmental implementation. I am not talking about the legislation. We are getting worse.

As an industry, you have the experience and you know the ways in which you produce efficiency. Your point is well taken, but I suggest that your solution is not, and there might be other ways. If you looked at the whole field, I think you would agree with me. You have the triggers. You cannot just shift that over to commerce where people do not have any experience and they are only in the commercial field. Do you know what I am saying? I have been through this act before, and I have been through the Environmental Assessment Act and the various acts that some of my colleagues have mentioned, and it is a tricky proposition just to say, "Hand it to Transport."

Mr. Morrison: In the interests of defining what Transport Canada's responsibilities are, we should all realize that the safety and security directorates of the Transport Canada organization certainly are not only interested in the commercial end of our business. They are, in effect, a controlling, directing, charging end of that department. We did not see the difficulty with that department having the responsibility for the marine industry. From our standpoint, I guess the more the better. That is not to say we do not have good dealings with the Coast Guard. We do have awkward dealings with the Coast Guard because of the fact that it is within another department whose mandate includes other than the Coast Guard and other than commercial industry and other than the Canadian shipping industry.

Senator Spivak: To leave this area, I would ask you to look at it again.

The ballast water seems to be more and more of a problem. Again, in the area of enforcement, how do you get a hold of this so that we are not seeing what we are seeing, which is devastation even maybe as far as Manitoba? We are certainly seeing exotic species. You know the problem.

Mr. Morrison: I accept your comment. We will look at, read, examine, and reconsider the pollution prevention responsibilities between departments. We will look at whether we can come up with another solution other than the one we have provided, and we will get back to the chair.

One of problems with ballast water is that it is a worldwide problem; it is not just a North American problem. Because it is a worldwide problem, the International Maritime Organization is in the process of coming out with guidelines, rules and regulations that will control it on an international basis. Once those guidelines and standards are set, then Canada and the U.S. will be able to, on a national basis in each country, promulgate their own rules and regulations.

As it is currently, the concern is that too many groups have an interest and would control and regulate. In the Great Lakes, as an example, we would have eight states plus our Canadian provinces that, in theory, could all have different sets of rules. That would become an impossible situation - far stronger than what happens between Transport Canada and DFO.

In response to your question, it is a matter of timing. Within two to three years, you will see international standards, guidelines and requirements. I would suggest that, following quickly on those, you will find that the American and Canadian governments will both act using their own rules and regulations. These actions will mirror somewhat, and will dovetail with the international requirements.

Senator Spivak: Do you think it is a problem with the policies or with the enforcement - the way in which you regulate? There are many kinds of ships out there, and not all are responsible.

Mr. Lanteigne: It is neither. There is no technological solution to resolve the problem. There is much research being done in the U.S., Australia and Europe to try to arrive at the technology, either mechanical, physical or chemical, to resolve that problem once and for all. It is like illegal immigration, although this one is in need of a solution. We, Canadian shipowners, invested, two years ago, close to $.5 million to test one potential solution to get rid of these unwanted organisms. It was a kind of mechanical filtration system. Despite our efforts, there is no technological solution to this yet, although there is a great deal of research being done and many pieces of equipment are being tested. As Mr. Morrison said, we are hopeful that, within two years, technology will reach a level where international treaties and laws can be put in place to not only control it, but to eliminate the problem once and for all.

Senator Finestone: I have two questions that I wish to address, and the first one concerns part 15. Do I understand correctly that the amendments to part 15 do not interest you?

Mr. Morrison: Are you referring to the Shipping Conferences Exemption Act? That is right - it does not affect our operations.

Senator Finestone: Thank you. My second question concerns the foreign crews who work on Canadian vessels on international voyages and the use of the Canadian flag on vessels on the high seas.

With all the rules and regulations, and the fact that you do not any longer have to list who the crews are, including the births and deaths, et cetera, with the Minister of Transport, can you keep it internally by the employer? How does that impact you if you have a large crew of non-Canadians? What are your reporting responsibilities? What are your legal responsibilities? We know that there can be a problem with refugees and immigration problems. How are those problems covered in respect of this act and your role and responsibility to keep the records?

As well, we know that there are certain flags that do not carry a good reputation. We are interested in keeping Canada's reputation of character and quality. How do the changes, in any way, potentially impact on Canada's reputation and our responsibility - not only in the field of shipping goods but in the field of preventing misuse of our ships?

Mr. Lanteigne: It is a good question, senator. You may have to remind me of some of the points you raised. First, any Canadian ship - any ship that flies the Canadian flag - be it on the high seas, coastal or inland water trade, must carry Canadians as crew. Foreign crews are not allowed on Canadian flagships. You must be either a Canadian citizen or a landed immigrant. Perhaps, you are referring to Canadian-owned ships, which are registered in a foreign country.

Senator Finestone: If that is the case, I was not aware of it. I am concerned only that Canadian ships can carry and have large foreign crews.

Mr. Lanteigne: That is not allowed under this bill, and it is not allowed under the regulations. Canadian officers on board Canadian ships have to be Canadian citizens.

Senator Finestone: What about the crew?

Mr. Lanteigne: It is the same for the crew. All certified personnel, from the cook to the seamen, must be Canadian. Unlike many other maritime countries, Canada does not allow foreign nationals on Canadian flagships whether be the ship on the high seas or in the coastal or inland trade.

Senator Finestone: That is good news. I thank you for that clarification.

Mr. Lanteigne: In response to your second point, about the recording, the current regime has been in place for a long time. The provisions of this bill are not very different from the current provisions. It is just the administrative burden that will be eased.

Under the current law, ships keep records of who is on board and who is not on board. They also keep records of births and deaths, and stowaways or refugees that may find their way on to the ship. Under the current regime, these records will still have to be kept, be the ship in the inland water trade or in the deep-sea trade.

However, the burden of reporting these to the department still exists. Time served at sea is an instrument - a requirement - to maintain your proficiency. Thus, your records must still be given to the department for record-keeping and in this case to Transport Canada. The burden, the timeliness and the method of doing this will be made easier.

Senator Finestone: In light of the catastrophe on September 11, world concerns about terrorism and bacteriological warfare have heightened. What are the kinds of insurance and protection you will have to add to ensure that your cargo being loaded and your personnel are safe and secure? You are in Canadian waters, and it is a very serious issue.

The Chairman: Senator Finestone, we will have to be very careful not to discuss security measures. We had problems with that last week, when questions were asked to our witnesses that should not have been asked, and answers were given that should not have been given.

Senator Finestone: I withdraw my question.

The Chairman: Thank you.

Senator Finestone: Thank you for that clarification. With regard to the regulations, it seemed to me that as I was reading a good part of this bill that many of the controls and the concerns are to be found in regulation. That is true particularly where you have certain rights that you feel have been abridged. Your remedies are not judicial; they are administrative. I am curious to know whether you would feel more comfortable with returning to the judicial remedy, and whether you think that the regulations should come back to this committee for review and comment?

Mr. Morrison: Certainly we prefer the judicial process to blindly trusting the creation of new regulations in terms of interpretation of the act. We have, perhaps, gone past that discussion, somewhat. I will let Captain Lanteigne discuss some of the detail that we are concerned about in respect of the formulation of those regulations.

Mr. Lanteigne: From the outset of the discussion of the shipping act, which was about five years ago, the Canadian Marine Law Association and the Shipping Federation of Canada - our labour union - were unionized. We asked that the current act be decriminalized to the extent that that is possible. That was achieved. We asked that everything else in the enforcement provisions be judicial in nature. That, too, was largely achieved.

You heard from the Shipping Federation of Canada last June, as well as from the Canadian Marine Law Association last week. We all asked that there be no administrative enforcement provision, either of the nature found here or what was in the previous bill, Bill C-35.

Transport Canada was unable to demonstrate to us the necessity of this provision. We know why. In the last 10 years, the whole marine community, including foreign shipowners and Canadian shipowners, has been charged 37 times for pollution and 46 times for civil penalties. That is not a very large number when you consider that 5,000 ships per year trade in this land.

Senator Finestone: In other words, you are good corporate citizens.

Mr. Lanteigne: Who wants to break the law? We have big assets at play here. People's lives are at stake. Shipowners do not break the law like this, not to the extent that this bill suggests.

Senator Finestone: Sir, did you bring this issue up when you appeared before the House of Commons committee?

Mr. Lanteigne: Yes, we did.

Senator Finestone: Did you have some sense of redress? Did you have any support in the other place?

Mr. Lanteigne: Admittedly, when the previous version of Bill C-35 came before the House there was a scheme called "administrative monetary penalties," which is still in this bill. There was also a lower echelon enforcement provision called a "ticketing scheme." The ticketing scheme has disappeared from this bill. We are now left with the AMP provision, the extent of which is yet to be defined by regulation.

In answer to your question, we would certainly favour these regulations being brought before this house. It is not only us who favours such a move. Our labour unions, which represent our officers, engineers and seamen, are patently concerned.

Senator Finestone: Perhaps we could make note of that as we look at the balance of this bill and as we hear from others.

[Translation]

Senator LaPierre: Mr. Lanteigne, can newly-landed immigrants in Canada be hired to work on board your ships or do you hire only Canadians who have obtained citizenship?

Mr. Lanteigne: Canadian citizens and landed immigrants.

Senator LaPierre: Both. Landed immigrants can be hired as well.

Mr. Lanteigne: These provisions can be found in Department of Transport regulations pertaining to professional certification as seamen, workers, mechanics or commanding officers. We have many landed immigrants, from several different nationalities, on board our ships. They have selected Canada as their adopted country.

[English]

Mr. Morrison: Landed immigrants.

Senator LaPierre: Landed immigrants is what we are talking about. I have no objection to that.

[Translation]

Senator LaPierre: I would like to go back to the matter of the two departments. In order for your solution to work, authority and personnel has to be transferred from one department to the other. Senator Spivak is quite right. If Department of Transport employees know nothing about this issue, staff from the Department of Fisheries and Oceans are going to have to come to the department. We are going to have to transfer some authority. Mr. Lanteigne, do you believe that this would be a good solution?

Mr. Lanteigne: The department is responsible for inspection, implementation and nearly all of the provisions found in the Department of Transport Act. The department has the jurisdiction it requires. It has been developed over time. We see inspectors from the Department of Transport on a weekly, monthly or annual basis.

In 1995, when the decision was made to transfer the Coast Guard to the Department of Fisheries and Oceans, legislative and regulatory jurisdiction for ships remained with the Department of Transport.

Senator LaPierre: You do not foresee any transfer of authority?

[English]

Senator LaPierre: Mr. Morrison, I understand that you are appalled by the lack of due process with the minister having the power to establish a balance of probabilities. I am sure that the minister does not establish a balance of probabilities in his sleep. I suspect an inquiry takes place, witnesses are brought forward and all kinds of evidence is accumulated, after which the minister decrees that there is a balance of probability. In your view, is there due process after he has decreed the balance of probability? Or is the person automatically found guilty because there is a probability that he or she did whatever it is that he or she is supposed to have done?

Mr. Morrison: Our concern is the same as that expressed by the Canadian Maritime Law Association. That is to say, if due process is not followed from the beginning, the results can be different.

Senator LaPierre: If I commit a crime of some sort, the police proceed to accumulate all of the evidence. Eventually, they bring the evidence to a judge to determine whether there is a probability that an offence has been committed and, therefore, a trial must follow. Is this not the same process in that instead of it being done by the judge, it is being done by the minister? Is that outside due process?

Mr. Morrison: We suggest that the rule of law is not as prevalent in that process as it would be in a judicial process.

Senator LaPierre: I see. So you would prefer a judicial process take place.

Mr. Morrison: Yes.

Senator LaPierre: In that way, a judge may determine that there is a probability that one of your ships' masters has committed a crime of some sort; is that right?

Mr. Morrison: Yes.

Senator LaPierre: I am not sure whether you are more concerned about the $1 million fine or the 18 months in jail. If I were you, I would take the 18 months in jail.

Mr. Morrison: We do not like speaking about either of them.

Senator LaPierre: If the sum is to remain at $1 million, it seems to me that it should be at least 36 months in jail.

Mr. Morrison: I would make a comment about the earnings of mariners, but I will not.

Senator LaPierre: Therefore, you think that the $1 million fine and the 18 months in prison are disproportionate to the offence?

Mr. Morrison: Yes, we feel that is the case.

Senator LaPierre: What happens if, through the inadequacy of one of your masters, you pollute Lake Superior and the seepage of oil causes the death of thousands and thousands of birds? Do you not think that you ought to pay for such an occurrence? After all, that is my inheritance.

Mr. Morrison: It is an impossible question to answer.

Senator LaPierre: Is it not a good question?

Mr. Lanteigne: The current level of fine for polluting is $1 million. It has been like that for quite a number of years. We have never questioned that.

Senator LaPierre: Should we increase it because the cost of living has gone up?

Mr. Lanteigne: That $1 million fine has now become a target. We are talking about a $1 million fine for a relatively minor offence. Dumping large quantities of oil deserves a $1 million fine; we have never questioned that. I do not think a fine has ever been levied to that extent. That is because we have not had any major pollution in Canada in the last seven to eight years.

To use $1 million as the objective for all sorts of minor fines, compared with other minor fines such as those found in the Railway Safety Act, which was changed not long ago, is unreasonable.

[Translation]

Senator LaPierre: However, there is a big difference between a rail accident and a marine accident. A train, unless it is carrying acid or some other substance, will not generate as much pollution as would an accident involving ships, right?

[English]

Mr. Lanteigne: Mississauga.

Senator LaPierre: Yes, I understand that but there could be some problem with an accident. On a normal basis, I would be more frightened of a maritime collision than I would be of two trains unless one carried some terrible stuff. What do you think of that? You are more dangerous to us than the trains.

Mr. Morrison: Your comments suggest to me that the media does a very good job of covering maritime accidents, but they do not do that good a job of covering how well we do our job on a daily basis. That is not a criticism of you.

[Translation]

Mr. Lanteigne: You are talking about pollution. The environment is a matter of great concern to Canadians. Over the past five years, there have been some 5,000 ships in Canadian waters and they have spilled much less oil in Canadian waters than the trains, tracks and pipelines on Canadian territory. That is, therefore, one way at looking at oil spills. In the end, all of the oil is found in the water, whether it be in our rivers, lakes or ground water for Canadian consumption.

[English]

Senator Adams: Does the Canadian Shipowners Association have any cruise ships?

Mr. Morrison: Your question is whether we have cruise ships as well?

Senator Adams: Yes.

Mr. Morrison: We have no cruise ships.

Senator Adams: In the Arctic, we have a few ships coming into the community. Most of the owners are from the United States and Europe. How do those ships get into Canadian waters? How do you regulate them?

Mr. Morrison: Our members are the only ships allowed to trade between points in Canada. If you have, for example, a grain ship coming in to Churchill to pick up grain that is going to the far east, that is not ruled by the Canadian cabintoge laws.

You will note that the ships that trade in the Arctic for resupply, whether petroleum or general cargo, that are trading between a northern point and a southern point in Canada, will be Canadian registered flagships.

Senator Adams: We have a little difficulty some times in the communities because there is no government telling us the information that a ship will be coming in a week. Most of them are tour ships. In the meantime, we are not equipped to handle 200 people getting off the ship - especially people from foreign countries who do not understand our culture and system. People are not prepared for that. We had 600 people arrive in Rankin Inlet, where I live, this summer.

We know that they are bringing money into the community. Some of the carvers like to sell their work but they were not prepared for it. I was wondering how they control ships arriving in the communities.

You have answered my question. The next time the minister comes to our committee, I will ask him questions about how to control people coming into the community, especially cruise ships. We are not aware that they are coming in advance.

We know about supply shipping in the communities because we have no highway.

Mr. Morrison: Even though we do not have cruise ships and are generally not in that jurisdiction, your communities are probably facing what other communities have faced across Canada. The places that are well prepared for handling cruise ships now include Quebec City, Montreal, Halifax and Vancouver.

With regard to places such as St. John's, Corner Brook and other destinations, each municipality must come to grips with how it will handle cruise ships and passengers, and where they will take them when they get there. Do you bus them? Everyone wants to dock downtown and be bussed somewhere. In your case, there would be some other way of getting people out to sight see.

That is not our jurisdiction. We do have some background in it. It is a question that every industry that has had a cruise ship has had to ask itself after the first one left, how do we handle this better? Why did not we do a better job and schedule it better? Why did we not get the people down to the dock? Why did we not take people back to the hinterland?

It really needs to be worked out as a plan; it is not merely dock the ship and let people go. That does not work. Even Vancouver and Montreal will tell you that.

Senator Adams: I would like to talk about the $1 million fine. We have done much study on dangerous goods crossing highways from St. John's to B.C. According to truck owners, the best way to handle that is to monitor the trucks that are travelling on the highway and notify every fire department in each city.

If you are handling oil or dangerous goods, how do you monitor the movement of ships if they get caught in a storm? It would be more difficult. Sometimes it does not matter how much you prepare, it could suddenly breakdown. How does your system work so that you will not be fined $1 million if that happens?

Mr. Lanteigne: To return to your earlier question, all navigation and maritime commerce in the Arctic - be it our ships that supply the communities with cargo, oil and other products or cruise ships - are regulated by a bill a law called Arctic Water Pollution Prevention Act. The current Prime Minister put that act into place when he was Minister of Indian and Northern Affairs in the 1970s. That law is still in place and governs any ship in the Arctic.

That law is far more severe than this bill. There is prosecution and protection in the Arctic that has stood the test of time for the last 35 years quite efficiently.

For the transport of dangerous goods or oil products that we do, there is a set of international regulations, treaties and conventions made under the International Maritime Organization by which we, and all countries, must abide. Second, ships are designed to carry these products and abide by the rules that are in place internationally or domestically.

Most of the rules in Canada mirror the international rules. If you enter the territorial waters of this country, the U.S. or countries in Europe, you must declare your cargo and declare if you are carrying dangerous goods or describe the nature of the contaminants that you may be carrying on board. The country then implements the measures it deems appropriate for allowing your ships to enter the port. Some local regulations may be applied. In this country, most ports have local regulations that apply to the transportation of pollutants or dangerous goods.

Senator Adams: Last year the fisheries committee looked at monitoring and radio communications if anything should happen on a ship. Some people monitoring those ships do not even know what kind of ship it is but only have its numbers. Is that regulated through Transport Canada or Fisheries and Oceans? For example, do trawlers have only numbers and no name or indication of country of origin? How does the system work in shipping?

Mr. Lanteigne: I could not tell you how the system works for fishing vessels, but I know it is not the same as the system that applies to us or to any foreign ship trading in this land. Again, that comes from an international treaty that Canada has ratified. The ship has to carry a name. It has to be registered and flagged by the country of registry. It has to carry international numbers that are in an international database accessible to us or to this country.

I can assure you there is a pretty high level of compliance by commercial ships with carrying a name, having a flag and being registered in a country that bears the flag that the ship carries. I know there have been some problems with fishing vessels with no flag, no name, and dual registration, but I really cannot talk about that because I am not conversant with what is happening there. The provisions for commercial ships are not necessarily applied to fishing vessels.

[Translation]

Senator Morin: As regards the problem that Mr. Lanteigne talked about, namely, the problem created when multiple departments have responsibilities, I would like to suggest that what was done in food inspection, which I know much better, may be a possible solution for you.

Up until recently, food inspection was carried out with great confusion and inefficiency by three departments: the Department of Health, the Department of Agriculture and Agri-food and the Department of Fisheries and Oceans. This situation continued until we created an independent and extremely effective and economical agency that brought together inspectors from the three departments to form the Food Inspection Agency. This agency is now used as an example internationally. Moreover, up until now, this has been a unique model. Perhaps we could use this example to resolve the problem you referred to earlier.

The Chair: Mr. Lanteigne, do you wish to comment?

Mr. Lanteigne: It is a very good example. The Canadian Food Inspection Agency does a great deal of work for us. In particular, it inspects the grain we transport. Since the agency has come into existence, we have noticed a significant improvement in their effectiveness and in their ability to meet the needs of their clients, who are Canadian farmers or carriers. This is a very good example. We can hope that history will repeat itself and that, in a few years, all of the country's marine authorities will come under the same administration. Currently this is not the case and we can see how legislative provisions are transferred from one department to the other.

The Chair: Thank you for coming to our committee and for answering our questions. If you feel that it would be useful to send us additional information, we would be happy to distribute it to committee members.

[English]

We will hear now from the Canadian Yachting Association.

Mr. Michael Vollmer, Vice-President, Recreation, Canadian Yachting Association: I am also a director of the Canadian Safe Boating Council, which supports today's presentation.

The Canadian Yachting Association is a not-for-profit corporation founded in 1931. It acts as the national authority for sailing in Canada and is recognized around the world for excellence in both sail and power training programs for all boaters, competitive sailing and recreational boating activities. The association represents the interests of 10 provincial associations, 258 clubs, 52 boating schools and 31 class associations. More than 80,000 people are active members of these associations. We promote the sport of boating through our collaboration with and support of our partners and other stakeholders.

Canada is a country that is almost unique in the world of recreational boating. Not only do we own more boats per capita than all but one or two other countries, we draw on a boating heritage stretching back through our first peoples. When the first Europeans travelled across Canada, they did not ride or walk; they canoed. We remain wedded to this heritage today as, according to the Life Saving Society, over half the population goes out in a boat at least once a year. Many of these people are not died-in-the-wool boaters; they are just average Canadians out rediscovering our country from its maritime perspective.

We have seacoasts on three oceans, lakes the size of oceans and myriad other inland waters. We share these waters with a wide variety of other users, including freighters from around the world, commercial fishermen and a host of small commercial vessels such as water taxis and other boats. As well, 14 U.S. states bordering on Canada are home to another 4.4 million boats that often visit our waters.

How do Canadians get out on the water? According to Canadian Coast Guard estimates, we own about 2.6 million boats of all types. This is by far the biggest fleet of all maritime transport in Canada measured on any basis. This fleet also generates a significant economic impact on the economy. The boating community, according to estimates by the Canadian Marine Manufacturers Association, spends in excess of $6.1 billion per year. These are all after-tax dollars. This probably makes recreational boating the most profitable marine sector in the country. The federal government is estimated to receive over $91 million per year in GST and excise tax on the sale of fuel alone. Provincial governments take in another $94 million annually.

The recreational boating community is a vibrant, intrinsic part of the Canadian experience. We want to ensure that it continues to be recognized by the government in a positive and comprehensive manner for all it offers our country. The Canadian Yachting Association recognizes the need for the Shipping Act to reflect modern laws and practices. The pursuit of safe boating is central to our reason for being, and the act and the regulations under the act form the basis for the safe practice of navigation for all vessels in Canada.

A recent Coast Guard survey found that over 85 per cent of Canadians supported the statement that "enforcement of safe boating regulations help make Canada's waterways safer for all boat operators," and therein lies the nub of our concerns. We all operate under the Canada Shipping Act and the regulations, as do all other vessels.

We have a wide variety of responsibilities as boaters and must conform to the same operating rules as all other vessels. We obviously cannot have a situation whereby the trucks drive on the left side of the road and cars on the right, and yet that is what appears to be proposed in Bill C-14.

A key feature of the bill is the creation a separate enforcement environment for commercial vessels under Part 11. Administrative penalties are proposed which will eventually apply to all regulations governing commercial vessels. There is a significant problem in this. Some of these regulations, especially the collision regulations, apply equally to the pleasure vessel fleet in Canada. Just who will police whom and what penalties they will face will likely create confusion and, at the very least, differing standards of enforcement and penalty for the same offence. This will, we believe, result in a reduction of enforcement activity, especially on small commercial vessels, and the very real possibility that boating safety will be compromised.

The stated intent of the proposed Part 11 is to decriminalize offences under the act and make them into "violations" that would be dealt with through administrative penalties. It is anticipated that an appeal tribunal will be created to adjudicate differences of opinion. Central to the imposition of administrative penalties will be the power to suspend or revoke certification of offenders. Most vessel operators are not certified; there is nothing to revoke.

While decriminalizing may be a laudatory goal, it does not address the facts. Most offences under the act are not presently proceeded with on a criminal basis. The previous witnesses noted how few charges have been laid. In most serious cases, action has been taken by police forces under the Criminal Code. Most small vessel offences, either for recreational or small commercial boats, are presently dealt with by police officers through the Contraventions Act, which permits the issuing of a ticket on the spot and provides all the safeguards of the justice system for those who disagree with the issuing of the ticket. The summary conviction process is used in the few remaining provinces that have yet to adopt the Contraventions Act.

Administrative type penalties are currently used in other transportation fields such as air or rail. These are highly controlled environments with a limited number of participants, all of whom have some form of certification or licence. The marine environment is entirely different. A myriad of vessels ranging from canoes to super tankers often operate in shared waters using common rules. Only a tiny percentage of the vessels carry certified crews.

Currently, according to Transport Canada, there are about 1,771 large ships on the ship registry. Almost one-third of these are government vessels. There are about 44,000 other vessels on the registry including yachts and about 24,000 commercial fishing vessels. This comes to less than 3 per cent of the pleasure vessel fleet in Canada.

While it may be possible to contemplate Transport Canada managing to use an approach such as proposed in Part 11 on the 1,200-odd large carriers, or the portion of the fishing fleet and smaller commercial vessels that are inspected and do carry certified crews, there is no way that the proposal can be stretched to cover the rest of the fleet operating under these rules. It is instructive to look at other regimes, such as air, which use administrative penalties.

Air has over 1,300 people employed looking after 28,000 aircraft. The rail section of Transport Canada monitors very few companies and has 134 full-time equivalents, while the marine side proposes to look after 2.7 million boats with 391 employees. It does not make sense. Furthermore, Transport Canada has no visible on-water presence to effect an enforcement scheme. The adoption of this proposal will lead to differing standards of enforcement and penalty that we believe will be to the detriment of safety on our shared waterways.

We would suggest that police officers who currently enforce the act and regulations for recreational vessels be given the power to enforce all regulations that are common to all vessels, including the collision regulations, and with respect to small vessels - including small commercial vessels - the small regulations. This is an important concept as we share many waterways with small commercial vessels that will not be adequately policed under the current proposal. The ability of police agencies to enforce regulations on all vessels should be recognized more clearly in the act. They at least have a presence on the water and are equipped to deal with offences immediately. Furthermore, enforcement of these regulations, no matter the vessel type, by police officers would be both complementary and cost effective to Transport Canada. Specialized regulations, we would suggest, relating entirely to large commercial operators such as tackle regulations would remain the purview of Transport.

A further very serious concern from the recreational point of view is that there has been little consultation with our community on the appeal tribunal approach. Only recently has Transport Canada recognized that we will face a significant impact if Part 11 is adopted in its current format. At a recent meeting in Toronto to discuss this proposal, a straw poll showed one vote in favour of Part 11. We strongly believe that Part 11 is deeply flawed and inappropriate for the marine environment in its current form.

A second issue with the act is the intent to move a significant sector of what are now considered pleasure vessels, such as vessels used for on-water training, certain types of recreational charter vessels and guided fishing vessels, into the commercial category. Not only is this change questionable in many instances, these vessels are completely indistinguishable from the many millions of pleasure vessels they share the waterways with in Canada, it creates an enforcement dilemma.

Within this group of vessels there are many that move back and forth between commercial usage and recreational usage depending on the time of day, the weather, or whatever reason. Transport Canada has stated that any commercial use, for even a short period of time, will require the vessel, its equipment and its crew to continuously comply with commercial standards. This represents a tremendous economic burden on our community.

Transport Canada has made some accommodation for the concerns of the recreational boating community about how these boats are defined, but the act contains some sections which are poorly worded and do not reflect the announced policy intent of Transport Canada.

To outline our specific concerns, we are concerned about the definition for "bare-boat charter." This presumes, according to Transport Canada, that a boat that is chartered with a crew is a commercial vessel and not a recreational vessel being chartered for recreational purposes.

With regard to enforcement officers, we believe that the definition that appears in Part 10, clause 194, should be adopted throughout the act. It gets around the question of whether the minister appoints someone or a group of people to enforce the regulations.

The term "oil handling facility" is an example of Transport Canada's attempts to create a safer, cleaner marine environment without understanding the full impact of their actions. As it is currently worded, every marina and yacht club that sells fuel, and probably every cottager who fuels a boat off his dock, will be considered an oil handling facility. The requirements and penalties are onerous for these. We suggest that this definition be modified.

The definition of "passenger" is very important to us. It creates a class called a "prescribed person," which is someone who is on board for a specific purpose and not necessarily for recreation.

The definition for "pleasure craft" creates a vessel called a "prescribed class of vessel." We are presently negotiating with Transport Canada and the Department of Fisheries and Oceans (Coast Guard) to ensure that our vessels that are used for training people on the water continue to be considered recreational vessels. However, later in the bill, use of "prescribed vessels" drifts into the oil handling facility area. These vessels must be built to approved plans and a whole series of other onerous issues. Again, we believe that the definitions should be revised to be more specific.

Under clause 10, the powers of ministers, as previously noted, we believe that enforcement officers should be defined in clause 194.

Sections 85, 106 and 109 in the present act deal with the responsibilities of owners and masters toward people on a boat. These provisions apply entirely to commercial vessels. We suggest that it should be incumbent on every owner or authorized representative of all vessels to ensure that their vessel is seaworthy and properly crewed, that its machinery meets the safe requirements for operation, and that the master exercise reasonable care and due diligence for those persons on board.

With respect to concerns about enforcement, clause 116 deals with when boarding a vessel is prohibited. This section appears to make it illegal for a police officer to board any commercial vessel - even small commercial vessels - to enforce provisions of the act. This is critical in many areas of country where commercial vessels and recreational vessels share waters. There must be seamless enforcement. We believe that powers to board any vessel at any time are critical to enforcement efforts.

I mentioned previously the construction of vessels. Clause 119 requires all vessels of a prescribed class to be built only in accordance with approved plans. This will be, if not impossible, at least very expensive.

Clauses 120(1)(j), (k) and (l) refer to a series of regulations that the minister of transport may make under his proposed administrative penalty scheme. These are areas that will affect the recreational boating community. Again, we feel that we want seamless provision for enforcement on the water. On our highways, the police are not restricted to dealing with cars: they enforce the highway traffic acts on both cars and trucks. We feel this is an important concept that has been overlooked.

Clause 121, which concerns contraventions, allows the minister to change offences into violations. It removes them from the criminal possess, but we feel it creates an administrative nightmare and indeed an enforcement and penalty disparity between the two systems.

Part 8 of clause 165, which concerns definitions, places on the Minister of Fisheries and Oceans the responsibility for oil- handling facilities. However, the definitions for this are different in this clause and clause 185. Why are there not similar definitions for both the Minister of Transport and the Minister of Fisheries and Oceans?

We have spoken briefly, in respect of clauses 168 and 182, about the differences in oil-handling facility definitions and requirements.

The Chairman: Mr. Vollmer, I would like to allow enough time for the senators to ask questions.

Mr. Vollmer: We have presented a number of other points and I have covered most of those. I would conclude by saying that we are very pleased to have been a participant in the deliberations of the standing committee. We support the goals of Bill C-14 to modernize marine law, but I feel very strongly that the intent of the bill to split enforcement into two unequal paths would result in reduced on-water safety.

We would approve of a bill that recognized the common use of our waterways and a need to have a seamless, even approach to enforcement for the benefit of all Canadians, be they recreational boaters or commercial operators. I thank you for the opportunity to speak today.

The Chairman: You have made a number of detailed points in your brief and I do not know if we will be able to discuss all of them today. However, this committee certainly will take them into consideration. Have you had the opportunity, in the course of the development of this bill, to bring the points you have made in your brief today to the attention of the government?

Mr. Vollmer: We have been engaged in discussions on this bill for a number of years. It is fair to say that, in general, we have been ignored. The Department of Transportation has a view of consultation whereby they seem willing to listen to people but not willing to change their minds. That is not an adequate level of discourse, particularly when the expertise lies almost entirely outside the department and in the boating community. We have tried to make the job easier and we have been rebuffed.

The Chairman: Could the points that you make apply to all members of your association, or do you distinguish between the various kinds of watercraft - canoes, kayaks, sailboats, powerboats and larger boats?

Mr. Vollmer: This bill applies to every vessel in Canada. A vessel is something that floats on the water, no matter how it is propelled. The swimming float is the dividing line. Yes, it applies to every one.

The Chairman: I note in your brief that you support the use of the Contraventions Act. Some of the marine industry is opposed to that. Do you have experience with the Contraventions Act working in many provinces or territories?

Mr. Vollmer: It has been an effective piece of legislation. Prior to the Contraventions Act, a police officer would have to issue a notice for appearance before a judge. For example, if a tourist in Rankin Inlet were issued with an appearance notice, they would have to return to attend court. As a result in many instances, police officers were loathe to issue such notices because of their time spent in court and because of the problems associated with people having to return from a distant location.

The Contraventions Act, on the other hand, allows the enforcement of federal regulations using the provincial paper-handling system, whereby a ticket is handed out. You can pay the fine, or you may fight the fine by going to court. The police started issuing thousands of tickets for violations on the water. The most graphic example surfaced in Port Coburn, Ontario. After the police started checking the boats for life jackets, the stores were out of stock for about six weeks. Everyone had to go out and buy them because someone received a $200 fine. It was a magnificent improvement in boating safety.

Senator Spivak: Mr. Vollmer, your whole emphasis is on enforcement, for which I congratulate you. You mentioned that there are 2.7 million vessels in Canada. How many police officers in Ontario and in Quebec are there compared to that number? I assume the vast majority, given the populations, are in these two provinces. Could you give me an idea how many police officers - the enforcement officers, I assume - are in Ontario and Quebec?

Mr. Vollmer: Ontario represents approximately one-half of the boating population in Canada. I cannot give you the number of OPP officers who are boat operators in Ontario. They are usually two per boat and there are approximately 200 boats at their disposal. There are also municipal police forces in Ontario that have boats.

They share the enforcement requirements with other agencies. It does not require two policemen in a boat: There can be one police officer and possibly one game warden or customs officer or municipal agent or an auxiliary police officer. The number of police is not as important as the number of vessels. The Sûreté du Québec has about 20 vessels. The JRC provides some policing in Quebec, as well, of federal regulations. There is probably not enough enforcement, but the police have been inventive about accessing lakes and moving their boats around, so that they do have a presence on the water.

Senator Spivak: I ask you this because we hear from cottage associations about this lack of enforcement and the lack of good rules to cover the way in which vessels proceed on the water. What is your opinion about that?

Mr. Vollmer: In response to your first question about the lack of enforcement, the current statistics suggest that it is five times riskier to drive to the cottage than to go out in your boat when you arrive at the cottage.

Senator Spivak: Where are those statistics from?

Mr. Vollmer: These statistics are from the National Marine Manufacturers Association. I believe they appear in a study by Consulting Audit Canada for the Canadian Coast Guard on personal watercraft.

The police are under tremendous pressure, obviously, to enforce regulations on the highway. If it is a long weekend, the police spend time enforcing the rules on the roads rather than on the water. Thus, there is a conflict.

In respect of regulations, we have many regulations governing boating. They govern all aspects of vessel construction, the requirements for people who operate pleasure vessels and all the rules under which you drive a boat. Whether you are driving the Queen Mary or paddling your canoe, there is one set of regulations that govern the operation of any vessel. The pollution regulations at the federal level are being harmonized, so there will be one set of regulations for commercial and recreational vessels. There is a complete set.

Senator Spivak: Is it your considered opinion that there is an adequate number of personnel to enforce safety regulation on water? Of course, in remote areas, there are none, but we have been talking about the busier, more populated areas of Ontario and Quebec.

Mr. Vollmer: Like many Canadians, I believe that we do not have enough police. The key areas for enforcement are those in the West, where the RCMP provides provincial policing on a contract basis. Many of the provincial governments have stopped marine enforcement. In B.C, marine enforcement is carried out primarily by the RCMP on the coast, and they have a small detachment in Kelowna. In that area there are more federal policing issues than there are recreational boating safety issues. The Maritimes similarly have low exposure. In Ontario, where we probably have the most number of police per boater, I suggest you could easily double the number of police committed. Funding has always been an issue.

Senator Spivak: Mr. Vollmer, on which board do you sit?

Mr. Vollmer: The Canadian Safe Boating Council of which I was a founding director.

Senator Spivak: Are you associated with National Marine Manufacturers in any way? Are you in any way a lobbyist?

Mr. Vollmer: I am a contract employee of the National Marine Manufacturers. I inspect vessels being sold in the United States for safe construction. I am a registered lobbyist. I have many corporate sponsors, all in the recreational marine field. I also inspect boats for a Belgian body. If you sell a boat in Europe, a third party must inspect it. This is something that should be looked at in Canada. However, I am sure the Coast Guard would not need the extra work. They are under funded as it is. My entire business is in the recreational community.

Senator Callbeck: I have a question about vessels that move from recreational to commercial uses and back again. It says in your presentation that even for a short period of time equipment and crew must comply with commercial standards. Let us say you have a sailing boat and you decide in the summer you will take tourists out for two months, what are the standards? What changes would you need to make to that sailing ship?

Mr. Vollmer: The Canadian Yachting Association trains thousands of people each year in on-water situations. It is not classroom work. On the larger boats, most of the vessels used - be they sailboats or powerboats - come from charter fleets. These are boats being used for charters by people who want to go cruising in Georgian Bay, for example. That is considered a pleasure activity. In many instances the operator of the charter fleet offers training through the Canadian Yachting Association. If they use that vessel for two weeks of the year in that capacity, then they are required to meet all the commercial standards. This means vessels have to be inspected. There probably would be requirements for subdivision - in other words, watertight bulkheads. There would be prohibitions on propane onboard. Most of the boats use propane for cooking. Two weeks later when the boat is no longer being used for training purposes, the owner of the vessel would have to have a certificate as master of minor waters. This means that he cannot take out the recreational vessel, which he has put into charter service, because it is a commercial vessel. He does not have the qualifications to do so.

We have canvassed our schools across Canada and virtually every one will be out of the business of offering on-water training in larger boats if this bill passes as is. It is a very difficult situation. Transport Canada is pretty comfortable with big boats. However, it has no understanding of the small vessel community, be it small commercial vessel or small recreational vessel.

Senator Callbeck: Is this one of the points that you took up with government when you had discussions on the legislation?

Mr. Vollmer: We had our first meeting two years ago in Toronto with Transport and Coast Guard to discuss this issue. Transport then issued a ship safety bulletin that completely missed the point. The second meeting was in January 2001 in Toronto, at which time we were promised a response within a week. We are still waiting for that response.

Senator Finestone: I had an amazing reaction to your presentation and to listening to the questions. Madam Chair, this reminds me of when we studied Bill C-6. Unfortunately, with that bill we did not do enough consulting concerning the health side of the issues. However, we did very well on the economic side. I think we are now facing a similar situation with the small vessel community. There has been a seeming rebuff on consultation. We are not dealing with the same kind of ships and boats.

On the one hand, it is, as someone said, the Queen Mary versus a kayak or a peddle-boat. This is ridiculous, for we are not dealing with huge cargo ships and oil tankers or tractor-trailer trucks on boats. As many of us who live near large lakes know, we are dealing with the small vessel community, which has specific problems. I have often thought that it is the municipalities that should be dealing with that, and fining those who do not respect the rules.

In the meantime, this is a piece of legislation. I suggest, Madam Chairman, that we discuss whether we might carve this section out of the bill and send it back for review by the minister. We could give them one year to complete the consultation and to rewrite those aspects that deal with this particular recreational community. I do not think it has been dealt with in a way that will enable the safety of Canadians on the water, which is our goal. The question is the same whether it involves a big truck going down the highway or a large boat going down a waterway.

I suggest that we look at it from that perspective. The presentation is one thing, but the issues are far more serious than just the presentation. If we were to amend the bill here and there and put the regulations back into this committee for review, that would be a patchwork way of doing things. It is something for which I do not particularly care.

I would like to know what happened when you went before the standing committee of the House?

Mr. Vollmer: The standing committee of the House made two minor amendments based on our recommendations. One was with regard to section 148, which dealt with the responsibilities of a master.

Senator Finestone: Am I the master when I am driving my motorboat?

Mr. Vollmer: Yes. Section 148 deals with the obligations in response to a collision. Section 141 basically says that you must give aid in the case of casualty. What they have said is that any registered, listed, recorded or licensed vessel under the act had to provide this assistance. It left out about 1.3 million boats. At the House level an amendment was made to change that to read "all other vessels in Canada." Similarly, clause 148 was modified at the same time.

We have not received any positive response on many of our suggestions. We have been told outside the committee that our concerns will be addressed in the regulation making process, which, if Transport were to consult adequately, would probably be a very useful exercise.

Senator Finestone: In light of what you said, first, all of us do not get certificates. If there is a collision and my water skier hurts another water skier because we were not respectful of the rules on the lake, do I need a master's hat to know what penalties I will face?

Madam Chair, I think the whole thing is out of whack with the way Canadians live. Some 2.7 million vessels is a large number of boats out on the water. I suggest that if it can be handled through regulations, then, fine, let us look at the regulations. In the meantime, these boats should be exempted from application under this act, until we see the regulations and know that consultation has taken place with this industry. That is what I would recommend at this point.

If I were to go over all these points, it would take too long. I do not believe that is in the best interests of Canadians. I learned that you could carve a section out of the bill and allow the minister and the industry involved the latitude of a year before that bill comes into effect. The changes could be made before that.

Senator Oliver: There is no section here that you could carve out.

Senator Finestone: We could make an amendment on the definition so that small craft are excluded.

The Chairman: This is the kind of discussion that we need to have after we hear all the witnesses.

Mr. Vollmer: I would comment on Senator Finestone's analogy. It bothers us most is not the water skier and a water skier colliding but a water taxi and her water skier colliding. The operator of the vessel would receive a ticket on the spot. Under the proposed scheme, the commercial vessel - the water taxi - would receive a strong warning to not to do it again. There would be no penalty. There would be a multi-stage process before a financial penalty or other censure was imposed. It would be a long process.

Senator Finestone: Would personal insurance cover this?

Mr. Vollmer: I am not sure. We have penalty and enforcement scheme for a recreational vessel. We would have a separate and different enforcement penalty scheme for the small commercial vessel, which does not make sense.

Senator Finestone: I hope that we will find a way to deal with this matter.

The Chairman: We will find a way to deal with this before we end the study of Bill C-14.

Senator Adams: Thank you for coming and I am glad you mentioned Rankin Inlet, because I live there.

In Rankin Inlet, we have more tourists kayaking and hiking in the Arctic. There is a different way to kayak. Some of the people need a guide.

We have difficulty with the Government of Canada because you cannot go hiking and kayaking in the national park and carry guns. In the meantime, people are being attacked by polar bears. There were three people attacked this summer on Baffin Island. A married couple from Quebec City luckily got away. A polar bear attacked one American.

We have Bill C-68 making it difficult for registering guns. The Nunavut government would like to see the police and tourism guides in the community able to carry a gun to protect the tourists. How do you feel about that?

Mr. Vollmer: I am not sure about arming the recreational fleet at this point. That would need to be done under other departments. Canadian Heritage deals with national parks.

Senator Adams: You are concerned about the people there from your association. You are not concerned about tourism?

Mr. Vollmer: The tourism aspect in the bill is interesting. If you have a two-place kayak, with the guide at one end of the kayak and the tourist at the front end, the kayak is then a "commercial vessel" because there is someone on board handling his half of the kayak for money. That makes it a commercial endeavour. If the person next to them is paddling a single seat kayak, it is a recreational vessel.

I fail to see the difference between these two vessels. I do not see the need for different standards and different requirements. That is fundamental to this bill.

We certainly would want to see a regulatory regime that promoted tourism in places like Rankin Inlet.

The Chairman: We will certainly take the time to study all the points you presented today and those presented in your brief. We are not through yet with the various witnesses that we will have here.

The committee continued in camera.

Transport and Communications

Proceedings of the Standing Senate Committee on Transport and Communications

Issue 13 - Evidence, September 25, 2001

Proceedings of the Standing Senate Committee on
Transport and Communications