Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 12 - Evidence - April 14, 2005
OTTAWA, Thursday, April 14, 2005
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C-15, to amend the Migratory Birds Convention Act, 1994, and the Canadian Environmental Protection Act, 1999, met this day at 8:05 a.m. to give consideration to the bill.
Senator Tommy Banks (Chairman) in the chair.
[English]
The Chairman: I call the meeting to order.
Before we get to our guests, honourable senators, and I am sorry to be rude, gentlemen, we have a couple of matters of housekeeping. I commend to your attention a letter from the Auditor General and the accompanying report of the Auditor General, which is in your office. Please look at it because I think we should consider asking her to come and speak to us about this particular question, which has to do with northern resource development.
The second thing to which I should like to commend your attention is this list of tentative witnesses on Bill C-15. We have proposed to add Mr. Tobin to it on May 3.
Senator Cochrane: We will be finished on May 5 — at least, as of now, that is the tentative date.
The Chairman: Yes. The other thing I commend to your attention is the information you would have received from Mr. Horrocks, of the International Chamber of Shipping, having to do with the European information that he sent us.
We have several witnesses with us this morning. I will leave it to you to decide the order of speaking.
Mr. Peter J. Cullen, President, Canadian Maritime Law Association: Honourable senators, thank you for this opportunity to appear before you. With me today is John O'Connor, the chair of the association's marine ecology committee that deals with pollution matters.
I will give a brief introduction about the Canadian Maritime Law Association, following which I will ask Mr. O'Connor to present some of the substantive points — there are not many — that we have with respect to this particular bill.
The Canadian Maritime Law Association was founded in 1951. It is an association of like-minded individuals and constituent members whose goals are to study the advancement and administration of Canadian maritime law and to promote uniformity in Canadian maritime law. Our membership cuts across the shipping community. It consists of shipowners and operators, academics, attorneys, judges, insurance brokers and adjusters, shippers of cargo and agents.
I have been a member of the bar for 24 years, Mr. O'Connor for about the same. I have been with this association for 20-odd years, and it is only been on a handful of occasions that we appeared before a committee such as yours. The reason is that often we are consulted at an earlier stage. When it comes to drafting and looking at policy, often government departments will seek our views and other views on input on policy and drafting of legislation.
In my experience, it is only a handful of times we have appeared before a committee such as this. I say that because we would only attend here if we had the overwhelming support of our association to come and express some concerns or issues we have with a particular piece of legislation.
We are an independent, not-for-profit organization. We do not have a permanent staff; we have a part-time secretary treasurer, and we are all volunteers. It is important, and we are grateful to have an opportunity to appear before you at this stage and express our views.
In terms of our constituent members, one of our founding members is here, the Shipping Federation of Canada. Mr. Michael Broad is the president. We also have the Canadian Bankers Association, the Canadian Bar Association, the Canadian Shipowners Association, the Canadian International Freight Forwarders Association and the Canadian Merchant Service Guild, represented by Mr. Lawrence Dempsey, who is here as well.
FEDNAV is not a member of our association, although a number of their members are with our association. You will hear more from FEDNAV in a moment. They are Canada's leading shipping firm, and it will be interesting to hear their remarks as well.
Mr. O'Neil has long been a member of our association. He was the former chief of the Coast Guard, chief of the St. Lawrence Seaway and, more recently, the head of the International Maritime Organization.
Again, we are grateful to have this opportunity to be here this morning.
Mr. John G. O'Connor, Chair, Marine Environment and Pollution Subcommittee, Canadian Maritime Law Association: Good morning, senators.
During the time I have been chair of the Marine Environment and Pollution Subcommittee, Canada has joined the international regime with regard to pollution matters. The international regime stands on three pillars: a civil liability pillar, a penal or criminal liability pillar and an international cooperation pillar.
In civil liability, which means cleanup, liability for cleanup is channelled specifically to the shipowner. He has virtually no defence. In exchange for that, however, his liability is limited, albeit to very high amounts, millions of dollars. Above the liability limit there is funding available. We have our own Canadian fund and there is an international fund. We are the only country in the world that can benefit from both funds. Each country that is a receiver of oil and is a member of the fund contributes to the fund. It is a balance between shipowners and cargo receivers on the civil liability side.
On the penal liability side, MARPOL is the main convention. MARPOL basically prohibits pollution, with a certain number of exceptions, including saving lives or a marine accident that causes pollution.
On the international cooperation level, there is a series of conventions, but the most important is the UN Convention on the Law of the Sea, of which Canada is a member. Over the last 15 or 20 years, we have become members of all of these international conventions.
We are concerned about Bill C-15 because we believe it affects all three pillars. We have provided you with the amendments we are proposing to the legislation. With regard to civil liability, we believe that the bill overlaps the civil liability convention, the fund convention, of which Canada is a member. It overlaps in that someone who causes pollution may be ordered to pay compensation, and there is no reference in the bill to limitation in the international fund regime that already exists.
By the way, the amendments are in numerical order and not in the order of my presentation.
We find the wording of proposed section 17.1(3) of the Migratory Birds Convention Act portion of the bill somewhat vague. We suggest that if the damage constitutes pollution within the meaning of the Marine Liability Act, the portions of section 16 that refer to civil liability would not apply. Therefore, you would have to go to the Marine Liability Act to see how the civil liability is shared.
We propose a similar amendment to the Canadian Environmental Protection Act portion of the bill. Section 42(3) of that act simply states that you cannot claim damage to the extent it can be claimed under the Marine Liability Act. We do not believe that is the best wording because "to the extent" means that if the limitation prevents you from claiming it under the Marine Liability Act you would be able to proceed under the Canadian Environmental Protection Act.
As I said, we believe the bill overlaps on the civil liability side; as such, those are our proposals for change.
On the penal liability side, we have two proposals. The first is with regard to clause 5.4 of Bill C-15, related to the Migratory Birds Convention Act. We believe that the current wording of the bill not only creates strict criminal liability but goes a step further and imposes potential criminal liability on persons who have no connection with the pollution. For example, a chief engineer will be prosecuted if the vessel pollutes. The chief engineer may not even be aware of the pollution. He may be sleeping when someone makes a mistake and turns the wrong valve. Under strict criminal liability today, the Crown must prove that the accused polluted, and the accused must show that he or she exercised due diligence, if he or she can. With this wording, the person who would be accused, the chief engineer or the master, may have no connection with the pollution whatsoever and may not know of it. If he does have a connection with it, we do not need this section because he would be a polluter himself.
We suggest that under the Migratory Birds Convention Act portion of the bill masters and chief engineers be treated exactly as they are under the Canadian Environmental Protection Act portion. I refer you to section 280.2. Masters and chief engineers can be found guilty under that section, but only if they participated in, acquiesced in, et cetera. That is the wording that we suggest be added to clause 5.4.
Finally, on the penal side, the association is opposed to minimum fines because we fear it will work against the cooperative atmosphere we have created over the last 20 years in this country. We prefer that it be removed, but if you wish to retain it we suggest the words "intentionally or recklessly" be added. In other words, if the Crown can show that it was done intentionally, then the minimum fines would apply.
We also suggest that the wording of section 280(2)(a) and (b) be amended to add the words "upon the vessel" to make it clear that the minimum fines only apply to vessels. We fear that a Crown counsel may be confused and think that as soon as the vessel is of an appropriate size anyone prosecuted under the act would face these minimum fines, including chief engineers and masters. We do not believe that is the intent of the bill, and we suggest that be made clear by adding the words "upon the vessel."
With regard to the international portion, we believe that the bill is in conflict with certain conventions, including the Convention on the Law of the Sea, MARPOL and the CLC convention.
We suggest that a new clause be added to both portions of the bill, and we have provided you with our suggested wording for both. It simply states that the bill is intended to complement our rights and obligations under international law and if there were a conflict between the act and any international convention, the convention would take priority. In this way, we avoid debate on whether there is a conflict. We understand that the witnesses from the department said that they believe there is no conflict and that there was no intention to create one. With this wording, that will be very clear in the bill.
Mr. Lawrence Dempsey, National President, Canadian Merchant Service Guild: Thank you for your invitation to appear before you this morning. I should like to state who we are and who we represent. We believe we are unique to other federal and public bargaining agents in that the Canadian Merchant Service Guild was originally incorporated by an act of Parliament in 1919, which was amended and reincorporated by act of Parliament in 1980, in Senate Bill S-12.
The objectives of the guild are to promote the economic, cultural and educational material interests of shipmasters, chief engineers, officers and pilots. We represent the vast majority of masters, mates, marine pilots and engineers employed in the Canadian shipping industry. The guild is also certified as the bargaining agent by the Public Service Labour Relations Board to represent ships officers employed with the Canadian Coast Guard and the Department of National Defence civilian vessels, as well as the marine instructors of the Canadian Coast Guard College.
The guild's total membership is comprised of approximately 4,300 members nationally. The majority of our membership is covered by collective agreements, but a sizable minority are managerially excluded masters and entrepreneur marine pilots. The federal government ships' officers collective agreement with the Treasury Board, covering approximately 900 members, is our largest. On the West Coast of Canada, we represent all 900 unionized masters and chief engineers in the towing industry and over 300 masters and chiefs throughout central and eastern Canada.
Mr. Chairman, honourable senators, it is not my intent today to try to dazzle you with my knowledge of the law or to try to convince you that what is being proposed by way of Bill C-15 in some way breaks or contravenes statutes covered by other instruments in Canadian or international legislation. I will leave the legalities of the bill to the expertise of the lawyers.
In all my 29 years as a representative of the men and women who make their living on ships, I have tried to conduct myself as their representative by adhering to a simple philosophy — that is, if something feels wrong, it probably is wrong. I have been elected and re-elected as a representative, so I have learned to trust my instincts over these many years. Bill C-15, in my opinion, feels wrong.
The men and women who reach the pinnacle of their profession as masters and chief engineers do so only after many years in the industry. They have had to put in years of service, getting to a position where they were able to sit and write Transport Canada required examinations that allow them an opportunity to become masters and chief engineers. Required sea time and officer of watch in junior positions, coupled with studies and exams and opportunity, usually mean that one will not get to become a master or chief engineer until their late 40s or early 50s.
On education and learning, I know that while it is extremely difficult to obtain a coastal navigation class 1 certificate of competency that allows a person to serve as a master on a Canadian merchant vessel, it is even harder for a person to attain a first-class marine engineering certificate. I have personally witnessed individuals spend as many as five years to complete such a certificate. Many never do. For those who do, I can assure you that, at least on Canadian ships, any action that places their certificate in harm's way is just not acceptable to them. Dismissal from employment for an accident is tantamount to revocation of that marine certificate.
Bill C-15 feels wrong to me because the onus of proof is on the individual to prove that he or she has not breached a regulation. The sword over the individual's head may even be a minimum fine of $100,000 where proof of innocence cannot be demonstrated or that due diligence did not take place. Upon notification of an incident, the master and chief engineer will thus need to immediately contact and contract the services of a lawyer for advice and a way forward. Common sense dictates that a lawyer would then require the services of specialists in oil analysis to ascertain that the oil pollution did in fact come from the vessel identified in the charge. After possible months of time have passed, even if the officer or officers prove that they were not offenders, they could well be left with legal costs far in excess of the minimum fine contained in the bill.
Mr. Chairman, ships of all nationalities traverse the waters of Canada. Ships inbound from sea converge into shipping routes that in every way resemble single-lane highways. In the Great Lakes, ships follow one another as though part of a convoy and, with today's global positioning navigation, mark their position within yards of course indicators. The reality of this is that a photograph that shows a vessel polluting may well be a vessel passing through the pollution of another vessel miles ahead.
Canadian ships, Canadian masters and chief engineers do not knowingly pollute. Pollutants of any kind emanating from a Canadian ship are bagged and tagged and put off in ports of call. Oily water is passed through oily water separators and disposed of during fuelling operations. On the other hand, many foreign ships share Canadian waters, often without knowledge of our laws and, in some cases, when they do know our laws, disregarding them.
Further, foreign and flag of convenience registered ships usually have crews consisting of various nationalities on board. Language becomes an issue, and conversing with one another, even in marine emergencies, is a challenge.
From earlier transcripts, I know that you heard from Mr. Peter Lehay, who represents the International Transport Workers Federation, or the ITF. Mr. Lehay and other ITF inspectors in Canada and around the world are in daily contact with flag of convenience ships and their crews. The issues and concerns he identified in his testimony regarding FOC vessels are real.
I will conclude my remarks by way of the following summation. Canadian masters and chief engineers spend many years at sea and in school to get positions as masters and chief engineers. Prosecution of masters and chief engineers under the bill and resulting legal costs associated with the requirements to prove innocence could very well spell financial ruin for these officers as well as their families. Presumption of innocence until proof of guilt is established must be maintained as a right for all Canadians. Recruitment and retention of persons who aspire to positions in the marine industry, and especially to positions of masters and chief engineers, must be encouraged at every level from grade school to university, and it is unacceptable to say that, where an individual proves that he or she has provided evidence of due diligence, no fine would be imposed, unless that proof is only required by a Transport Canada inspector or authorized legal investigator with the authority to accept that proof.
For all of the above reasons, the Canadian Merchant Service Guild requests that this committee return Bill C-15 to Parliament for amendment and reconsideration with a recommendation that masters and chief engineers not be made to prove their innocence in a pollution with which they may have had no connection.
Further, to the extent that may apply to masters and chief engineers, the minimum fines contained in the bill should be eliminated. Accept that Canadians as a people are cognizant of environmental concerns. Accept also that masters and chief engineers and Canadian companies that employ them are also cognizant of these concerns. They are not the polluters that this bill targets.
The Chairman: Thank you very much, Mr. Dempsey. Mr. Broad.
Mr. Michael Broad, President, The Shipping Federation of Canada: An act of Parliament incorporated the Shipping Federation of Canada over 100 years ago. Our organization represents the owners, operators and agents of ships carrying Canada's international trade. We represent the international marine traffic calling on all eastern Canadian ports from Newfoundland and Labrador throughout the Great Lakes.
We are here today because the ocean shipping industry that we represent is seeking assurance that Bill C-15 will be enforced in a way that is compatible with Canada's international obligations. Today, I should like to address three points to the committee.
First, there are a number of discrepancies between the relevant international conventions and Bill C-15. These international conventions are important because they define the rights of a coastal state to board, deviate, inspect or detain a ship. Bill C-15 does not refer to this framework, nor do a number of its provisions fit into it.
Bill C-15 also sends a message to the rest of the world that Canada may choose to ignore international conventions it has signed in favour of going its own way. This jeopardizes the international network that has been developed by the 160-some odd member states of the International Maritime Organization, otherwise known as the IMO.
For ship operators trading in Canadian waters, Bill C-15's provisions regarding deviations, detentions, delays and the criminalization of crews pave the way to a great deal of uncertainty. As a result, the proposed legislation will indeed create a new operational framework despite Environment Canada's claim that it is nothing more than an administrative fix or housekeeping legislation.
There exists one very simple solution to these very serious concerns. If Canada's intent is to enforce the proposed legislation in a way that is consistent with the relevant international conventions, then that intent should be stated in the bill. Such a clarification is extremely important for our industry, which relies on a predictable international framework. It is also important for the integrity of that framework. The suggested one-paragraph amendment to Bill C-15 is included in our brief.
Second, we are here today because we are concerned with the provision on minimum fines, and we believe that your report may clarify the government's policy intent in cases of accidental spills. We are concerned that the minimum fine provisions may be counterproductive, as it may discourage voluntary declarations of accidental oil spills for fear of being incarcerated.
We were relieved to read Senator Christensen's comments of March 24, which indicate that anyone who voluntarily declares an accidental spill will not be charged. This is precisely the kind of clarification and assurance we are seeking, and its inclusion in the Senate committee's report would be greatly appreciated. That is our second and last recommendation in the brief.
Finally, although we did not mention it in our brief, we share other stakeholders' concerns regarding the boarding of ships and inspection of ships by game wardens. We submit that Canada should adhere to the policy of having pollution prevention officers board and inspect ships.
Before I introduce our guest and expert witness, Mr. William O'Neil, Mr. Lawrence Pathy, who is president of FEDNAV and an active member of our organization, will speak from the point of view as a Canadian ship operator in international trade.
Mr. Ladi Pathy, President, FEDNAV: Thank you very much for letting us appear before you today. I know you have had many witnesses, and we appreciate the opportunity to join you.
Before I start, I should like to introduce Mr. John Weale. He is a senior vice-president of FEDNAV in charge of risk management. He has helped me put together this presentation, and will hopefully assist me with any questions that I am unable to answer.
I am president and chief executive of FEDNAV. FEDNAV is a privately held Canadian company. We have been in business for over 60 years. We are based in Montreal. Our company owns 20 ships, and we charter approximately 50 or 60 other ships beyond the ones we own.
The ships are all dry cargo vessels. They carry bulk commodities such as grain, sugar, potash, steel, commodities that we move around the world. Our two primary trades, however, are into and out of the Great Lakes internationally and into and out of the Canadian Arctic.
I mention those specifically because they both are clearly environmentally sensitive areas. As a company, we view ourselves as being sensitive to the environment and interested in the environment. Therefore, in this particular appearance by us today, we appreciate the opportunity to express to you our views about Bill C-15 in the context of our business.
I am here as a member of the international shipping community, and I should like to express my concerns about Bill C-15 and make some suggestions for its improvement. I am concerned that, in its present form, the bill provides a recipe for confrontation where, with a few amendments, it could form the basis for a new cooperation between government, industry and environmentalists.
I am also concerned about the lack of consultation that has gone into the bill to date. I am concerned that we as shipowners have allowed this debate to be shaped by the environmental interest groups. That, in our view, has resulted in an imperfect and inaccurate picture of the shipping industry and what it does.
The reality is that the vast majority of our industry is highly responsible and sensitive to environmental issues. The reality also is that almost everything that any of us consume or do in our lives is, in one way or another, is touched by shipping. Our automobiles, clothes, food — practically anything we do has a shipping relationship.
The reality is that in Canada, as in other countries, it has been repeatedly demonstrated, in terms of pollution and consumption of non-renewable energy resources, that shipping is by far more efficient than any land-based means of transport when measured in tonne miles. Furthermore, the reality is that shipping on a world scale is a highly capital-intensive, volatile business that nevertheless requires certainty, stability and consistency in the nature and extent of the regulations and rules that guide it internationally.
These preliminary remarks may not seem directly relevant to Bill C-15, but I believe they logically lead into two questions that have to be addressed. The first is this: If we are so good as an industry, and if our company is doing such a great job environmentally, why are we so worried about Bill C-15? Secondly, as Senator Hubley has asked, what would it take to make this a good bill?
To respond to the first question, accidents happen in any industry. In our industry, this can particularly be the case. The sea is a hazardous environment. Running a shipping business is not like running a bus company from points A to point B and back, although even bus companies have accidents. Therefore, while this bill may be aimed at a few rogue shipowners, it will also ensnare the good and responsible operators, their officers and directors, their masters and chief engineers.
In fact, given the current lack of effective detection systems, Bill C-15's premise — if we cannot catch the rogues, let's at least deter them — creates a net that has a very fine mesh, too fine, we believe, and so will catch the innocent as well as the guilty, causing lengthy delays to their vessels at huge financial cost and huge personal pain to those who might be arrested.
Others have given you an informed opinion on the alleged conflict between Bill C-15 and Canada's international commitment, so I will not go into that any further, but I do know very well that this commercial argument that I have just stated is valid whether or not such a conflict exists.
To turn to Senator Hubley's question, I think we must accept that the bill as drafted is somewhat limited in scope. It is addressed not to catching rogues but to punishing them once they are caught, with the related deterrent effect. Subject to this qualification, I believe the bill could be made into a good bill with the following amendments. These are intended to make the bill more fair and just and also more practical in its working.
First, under the bill as drafted, huge minimum fines, or even imprisonment, can be imposed on innocent men and women. Indeed, they can be imposed on officers who were not even on watch or in a position of responsibility at the time of the incident. We believe this is unreasonable. Furthermore, the threat of such fines or imprisonment is only likely to lead to the guilty perpetrators covering up their misdeeds. The ultimate deterrent, the big economic stick, lies, in our view, in those guilty of deliberate oil spilling, vessels and officers, being identified publicly and put on an international watch list. These vessels and owners will find that their customer base will erode, and so will their bottom line. Our recommendation, therefore, is for the deletion of minimum fines under the act.
Second, enforcement procedures need to be centralized through enforcement officers who are experienced and knowledgeable about ships. Existing PPOs do qualify for this. As an example of specialization in the United States, the whole issue of oily water separator detection and inspection is abrogated to a group of special officers with particular training who have great knowledge of this machinery and who are able to detect things that certainly unqualified officers would not be able to do. Something like this should also be considered in Canada.
Third, there should be provisions that stress the duty of enforcement officers to act with due dispatch. In other words, if a ship is brought into port, the provision for 30 days of possible detention is clearly unreasonable. As in other countries, such as in Europe, it should be possible to inspect such ships, make a report and send the ships on their way within hours.
Fourth, the bill needs to make it explicit, and we have heard about this before, that, in case of conflict, conventions such as MARPOL and UNCLOS are to take priority.
Working from the above, and recognizing that even with such amendments Bill C-15 will remain an imperfect tool in the wider context to which I have referred, Canada must aim to improve its detection systems and to work with the United States and the international community to coordinate reciprocal vessel examinations where there is any suspicion of pollution.
In our view, therefore, the solution to the larger problem may be simply stated. One, Canada should maximize the resources it devotes to aerial and electronic surveillance of its waters, including the EEZ. Two, Canada should continue its efforts to develop and improve the technology for the detection and verification of oil emissions from ships. I am sure that our industry, including companies such as ours, would be prepared to work closely with government in developing such detection and verification systems. Ironically, as has been pointed out to me by somebody who has been to sea, low tech as that might seem to be, the best form of detection will always be the eyes of another ship. Having said that, no other ship will report oil spills if they have the feeling in their minds that there but for the grace of God go I. Third, Canada should make a sustained effort to negotiate detailed mutual enforcement agreements with the United States and other nations. Fourth, Canada should work with these other nations to establish an Internet-based reporting system so that the record of any repeat offenders will be instantly accessible, together with details of any such infraction. For such an effort to achieve complete success, it will require the full and willing cooperation of the good operators, the vast majority, as the committee has been told, so as to achieve the prompt reporting of any pollution incident, however small. In this context, it is entirely reasonable that any failure to make a such a report should attract strict liability, but extending this to innocent error or mistake as to the incident itself will be counterproductive, especially when coupled with hefty minimum fines and the possibility of incarceration.
Mr. Broad: Mr. Chairman, may I introduce Mr. O'Neil? The industry asked him to speak to the committee to just give a bit of an idea on the origin of the international conventions, their raison d'être, and why signatory countries should continue to support them. Mr. O'Neil has a lengthy resume that I can distribute later. However, most recently, in 1989, he was elected as the secretary general of the International Maritime Organization, which is an agency of the United Nations, and he held that position through until January of 2004 and now acts as Secretary General Emeritus. He was also the former president and CEO of the St. Lawrence Seaway Authority and also Commissioner of the Canadian Coast Guard.
Mr. William O'Neil, Former Head of the International Maritime Organization, The Shipping Federation of Canada, as an individual: While I am not a seafarer, I have had a lot to do with the maritime industry over the past 55 years. When I was asked by the Shipping Federation to appear before your committee, I welcomed the opportunity to perhaps give some explanations as to the background with respect to the creation of IMO, how it functions and how it might fit in with the considerations you are giving to this particular situation. If you allow me, I will do just that.
There is no question that shipping is truly an international activity, and therefore ships must be free to move throughout the whole of the globe, unfettered to the degree that they do not abuse the privilege that they have had of freedom of the seas, which has been in place over the years. We all know that since the end of the Second World War, there has been an exponential increase in the amount of traffic using the seas, particularly the shipment of energy products and coal and oil. Now we are moving into an era of gas movements. These have all brought with them particular concerns and problems.
The International Maritime Organization, as you have heard, was formed early on in the last century, middle of the last century, by the United Nations, by the countries who were concerned about safety at sea stemming principally from the Titanic. Safety was the original concern. This was expanded to cover the movements that I have mentioned, oil and others, as they became more dominant in the shipping world. The organization now consists of 164 member states and two associate members, Hong Kong, China, and Macao, China. In addition, it has 60 non-governmental organizations in consultative status with IMO. I mention this because the organization depends a great deal on the input from people who are dealing with specific topics on a day-to-day basis so that in the development of its work IMO can benefit from these resources.
To achieve its objectives, which are essentially safety at sea and prevention of pollution of the seas, and added to that recently of course has been the issue of security, a number of conventions has been developed and international treaties put in place establishing the standards, codes and regulations that would apply to ships in a broad range of subjects.
The most important point about IMO is that it has international recognition. It is the only agency that has an international status.
Shipping companies at one time, just prior to my coming into IMO, which was in 1990, felt that there was no need to put in stringent regulatory regimes governing their industry. There was a feeling that this would be an impediment to the their ability to conduct their affairs in a free manner. However, over the period of the last 14 years, that position has changed dramatically, to the point where now, if a change is suggested by a country or by a region, the shipowners insist that it should come to IMO and should be dealt with on an international basis by the organization, which has now established itself as a focal point for these matters.
The process in IMO is clear-cut. If someone wishes either to add to or change any element of the safety or pollution regime, they bring the topic to IMO and it is processed through a series of committees where experts can provide advice. The way the organization is arranged, we have expertise in all subjects from all over the world. The best minds can be put to developing whatever the convention, the standards or the codes might be.
If it turns out that it is an adaptation or an amendment or a change to an existing document, then that can be implemented by a rapid change procedure, the tacit amendment procedure, which means that generally speaking, a change can be brought into place within 15 months or so, depending on the need. If a new treaty is required, the IMO assembly convenes a diplomatic conference where the treaties are developed and adopted by individual states later on.
Every country has the opportunity to participate in the work of IMO. There is no restriction in any of the committees on any country bringing its views to the table and presenting the position of their government, their industry or their seafarers. We do have, in the IMO, that broad ability to obtain the best advice possible.
There is a basket of conventions. I will not go through them all, but the fundamental ones are the International convention for the Safety of Life at Sea and the MARPOL convention. Before the worldwide concern was raised about oil pollution from ships, IMO had the OILPOL convention in 1954. This was well in advance of the creation of any environmental departments in government that I know of.
The organization has been seized with the issue of safety, prevention of pollution, cleanup activities after pollution and compensatory arrangements in case of damages. To deal with one element of this safety chain, we embarked on the development of a safety training certification and watch-keeping certificate for seafarers that has now been updated and has been extremely helpful. Coincidental with that is the International Safety Management Code that focuses on management.
Those are the areas that IMO has dealt with over the years — safety features, pollution from ships, oil-spill cleanup activities, compensation for damages and the human factor in shipping.
Some 97 per cent of world tonnage of merchant shipping now complies with the major conventions of IMO, so you can understand that it has broad acceptance and broad application.
All the developmental work done through IMO is given a great deal of rigorous examination before it is put out for consideration by the world shipping community, and the principles and details of Bill C-15 have not been exposed to the rigorous scrutiny and consideration by the experts that we would expect with regard to IMO legislation. The bill lacks input and sensitivity to practical maritime considerations that are known and accepted by the international shipping community.
There is no question that those who deliberately and knowingly commit an act of pollution or flout pollution prevention standards should be punished appropriately. That is fundamental in the IMO. MARPOL was drafted with the aim of applying sanctions in cases of non-compliance, but there was never a consideration of criminal sanctions. I understand that the term "criminalization" has to be looked at in the light of the country we are dealing with. The term used throughout Europe and the IMO is to "avoid criminalization" of seafarers. That means avoiding putting seafarers in prison and giving them a criminal record. Aside from the issues that have been mentioned previously, obtaining security clearance to continue to function as a seafarer after one has a criminal record might be extremely difficult these days, and that should not be overlooked. The long-term impact on a seafarer could be extremely serious as far as ability to continue in the profession. The IMO conventions did not have the intention of introducing criminalization but were expected to deal with civil matters and to impose whatever penalties and sanctions were required.
We are concerned in IMO about the practical and psychological impact on seafarers as well as the aspect I just mentioned with respect to security clearances. The world's shipping industry is facing a serious problem of attracting young people to seafaring as a career. There is grave concern that threat of criminalization would discourage conscientious young people from entering the profession. It would discourage conscientious officers from accepting more senior responsibilities. Why should they expose themselves to the possibility of being put in prison? Imposition of fines is one matter. However, if they conduct themselves to the best of their ability in their day-to-day activities and an accident does occur, they should not face the stigma of imprisonment.
I spoke with the current secretary general in preparation for my appearance here today. He agrees with what I am saying and has sent the chairman a letter outlining the position of the organization. Therefore, while I am not speaking as an IMO representative, these views are supported by the organization.
Competent salvers who operate internationally are crucial to a successful post-accident salvage operation. The mitigation of pollution damage is extremely important, on-the-spot decisions have to be made in the heat of an incident and judgment decisions must be taken on the basis that the greater good of the enterprise might be successful. However, in doing so, some pollution might be caused. That is just in the nature of the business.
Unless some guarantee of immunity from prosecution for salvers is given, they could easily turn away from an accident. There is no compulsion for them to take on the responsibilities of dealing with a situation that might result in them being exposed to criminal prosecution, and that is a very serious matter in determining what the impact might be.
Salvers are an extremely important part of the shipping industry, and there are cases where a salvage master has been detained even prior to having started work on a project in a certain country. This is not a theoretical situation; it is a practical one that has happened in one country and may have an impact in others.
The convention with respect to compensation has been developed over the years, and Canada has always been one of the leaders in dealing with the compensation issue for those who have been damaged. The development of the international fund was really based on principles that Canada had put in place in the early 1970s when the Canadian fund was created. Canada has taken a leading role with respect to the fund, and the chairman of that fund is now a Canadian, as is the chairman of the committee reviewing the fund. We have two Canadians involved in that particular aspect.
If it is decided that the fund is not adequate, it is a straightforward matter of the Canadian government putting forth proposals that would change it to make it come in line with the wishes of Canada. If that is then agreed to by the shipping community, the change would come into place, as has happened since the first fund was created.
I wish to make a brief summary of what I think the position is with respect to the international community. First, on the transport of goods by sea, shipping, of course, is an international activity and must be regulated by an international organization to standards that are accepted and implemented on a global basis. This is extremely important. The IMO has been recognized by the world community as the focal point for developing and adopting these regulations and standards, and there is no serious challenge to that at all today.
The random implementation of selected national standards is really not an acceptable practice. Ships cannot operate safely if the standards and regulations vary from country to country. If a ship goes to one country and faces a certain regulatory regime, and then goes to another country and faces a different regime, then the risk of accidents and pollution damage would be completely unacceptable. Chaos would arise in the shipping industry. It would be totally out of line with the whole process of trying to achieve a safer and more environmentally friendly industry.
In my view, all proposals regarding changes to the shipping regulatory regime should be channelled through the IMO, certainly to obtain the benefit of the international expert's examination and analysis of all of the repercussions and proposals as to the potential impact on international shipping and the possible departures from the provisions of MARPOL. You have heard that there is concern that the provisions of Bill C-15 would not be harmonious with MARPOL. That should be examined by people who are experts in the field and who can undertake to make an independent analysis and provide guidance with respect to this possibility.
The applications of sanctions of a criminal nature, the imprisonment of seafarers and others who are not guilty of acting with intent to violate internationally accepted standards and regulations, should just not be pursued. It is not at all proper that people who have not been involved should be put into this position.
My other point is that no sanctions should be introduced that would discourage people from becoming recruits to the maritime profession. I must emphasize that. That receives great attention throughout the IMO and throughout the whole of the European shipping community. It is quite obvious that anything that is done that will make it more difficult to bring recruits in or to advance the careers of seafarers is not desirable.
I have spoken about salvagers, and the point is that they should not be exposed to the application of criminal sanctions when they are engaged in salvage operations that might result in pollution despite the exercise of their expertise and professional judgment at the time of the casualty. You can imagine that, in the height of an incident, judgment decisions have to be made quickly, because in pollution incidents, time is always of the essence.
The proposal for modifications to the existing schemes for compensation for damages could be brought by Canada to the fund prior to inclusion in Canadian legislation so that it can be attended to as it always has been. Canada has always participated in the international scene. The president of the first IMO assembly was a Canadian. I was chairman of the council for 10 years and secretary general for 14 years. The chairman of the legal committee is Canadian. We have performed the other functions I have mentioned. Canada has a peculiar role on the international shipping scene. We are not large shipowners. We are large users of shipping services. We have to guarantee that good, sound shipping is available to satisfy the Canadian needs and to protect Canada's coastline. Serious consideration should be given to making sure that the international community has an opportunity to express its views to you.
Senator Angus: Chairman, a witness mentioned a letter that was sent to you by the present head of IMO. Do we have that?
The Chairman: Yes.
Senator Angus: Did it come before today?
The Chairman: Yes.
Senator Angus: Do we have the CV that Mr. Broad mentioned as well?
The Chairman: I think we have it today.
Senator Angus: I think we should have that in front of us.
The Chairman: I believe the letter from the secretary general of the IMO was received some weeks ago and distributed to all members.
Senator Cochrane: Thank you all for attending here. Looking at all seven of you, I must say you have brought your big guns. This issue that is before us today is indeed very important to you, having the representation that we do have here.
Mr. O'Neil, does the IMO have any enforcement powers? If not, is it not essential that signatory countries have domestic legislation in place to ensure that they can play their part in enforcing MARPOL and others within those economic zones and the 200-mile limit that this bill includes?
Mr. O'Neil: The development of the convention, as most conventions, has been such that the adoption of the convention and the detailed contents of the convention are developed by the IMO. They then require that each individual state, each country, should implement those standards, the contents of those documents, on the ships that they control. The system has developed over time, as a third arrangement, that the port state control who vets the ships when they come into port to ensure they are in compliance.
Generally speaking, the IMO does not have enforcement powers, with one exception. With regard to the STCW convention, the IMO has been given the responsibility for examining all training institutions around the world and ensuring that they do comply with the requirements of the convention and do deliver the quality needed to ensure that seafarers are properly trained.
Senator Cochrane: They do not have the enforcement powers to go within this 200-mile economic zone, then?
Mr. O'Neil: No.
Senator Cochrane: I want to come back to the statement that our young people are being discouraged from accepting this senior responsibility and that it will be difficult to recruit young people to come into this profession, that this bill might be a deterrent for them to do that because of the possible criminal offence.
I know a lot of young people because my former profession was teaching. These young people are people who have great minds — I am not saying the older people do not have great minds; I am putting myself in that category — and they are great in the sense that they are environmentally conscious. If they know that some of this damage is being done to our seabirds, I think they would be more inclined to enlist into this profession. That is by way of a statement; it is not a question.
The Chairman: What is your question, senator?
Senator Cochrane: My question goes to the Canadian Merchant Service Guild. Mr. Dempsey, I think you have concluded in your brief by saying this: "Accept that Canadians as a people are cognizant of environmental concerns. Accept also that masters, chief engineers and Canadian companies that employ them are also cognizant of these concerns. They are not the polluters that this bill targets."
Do you agree that we do have a problem here, whereby thousands of our birds are dying and have been killed by polluters in our oceans? I am talking especially about the Atlantic Ocean off the east coast of Newfoundland.
If you say these people are not the polluters, who are the polluters? What do we do about it? Do you agree that we should do something? Help me to understand what are we going to do with our birds that are being killed in our waters?
Mr. Dempsey: Thank you for the question. Maybe I will not thank you, depending on how my answer goes here. In the brief I submitted to you, I am speaking specifically of Canada's domestic fleet. I am also speaking for the people that I represent, people who work on Canadian ships, Canadian masters and Canadian chief engineers.
The problem that you identify of the death of birds and that sort of stuff, what we see on TV, is certainly a problem. I would admit, and I am sure everyone around this room would admit, that when those kinds of things happen, it is sad. However, at the same time, I am trying to suggest to you that Canadian ships are the ones that will be captured in Bill C-15. What I am trying to tell you is that Canadian ships' officers, masters and chiefs engineers are not the people doing the polluting.
Their marine certificates are so important to them. They spend many years at jobs trying to get to those positions, and they are the epitome of the world they live in as masters and chief engineers. They do not put their certificates in harm's way, short of an accident happening — and as Mr. Pathy said, accidents sometimes do happen.
My concern, as their representative, is they can get caught up in the aspects of what I read in Bill C-15. By virtue of getting caught up in it, the potential for the minimum fines reaches into the pockets of the masters and chief engineers and right into their families also.
The Chairman: Could you expand on how they would be caught up in it, please?
Mr. Dempsey: As my understanding goes, for example, a picture is taken from the air, or however, and a charge is laid. From there, it becomes the responsibility of the master and chief engineer to show that they had done due diligence for that incident not to take place. It is in the process of going through that that the master and chief engineer would have to prove beyond a doubt or to a court —
The Chairman: No, excuse me; show on the balance of probability.
Mr. Dempsey: Maybe I should turn that question over to Mr. O'Connor for an answer, because it seems to be a legal question and I do not have the background in the law to answer your question.
Mr. O'Connor: Do you mind if I answer?
The Chairman: Not at all.
Mr. O'Connor: I believe what Mr. Dempsey was saying, and what he was trying to represent in his presentation, is simply that he represents the Canadian masters and chiefs. They are probably not involved in these pollution events that are so unfortunate on the East Coast of Canada. However, the fact is that the bill does not say they are only targeting foreign masters and chiefs; it is across the board.
If there is an event, or a potential event or appearance of event involving a Canadian vessel, then his members — who we all agree are not the polluters normally, but might have been involved in a accident, et cetera — are going to be caught in the web of this bill. They are going to be subject to being accused, prosecuted and, regardless of the level of proof they have to bring, go to court and show that they exercised due diligence or took all reasonable care. His concern is that it will cost a lot of money for his members to do that; they are not insured for this and they are paying out of their own savings. Even if they win, it still will cost them a fortune. I believe that is what Mr. Dempsey is saying.
Senator Cochrane: As well, you are saying that "ships inbound from the sea converge into shipping routes that in every way resemble single-lane highways."
Are they not the single-lane highways that our birds take?
Mr. Dempsey: To answer your question with regard to what routes the birds take, I do not know the answer to that. I can tell you that, in my submission, the lanes that I was referring to are lanes that lead ships into ports of call such as Halifax and St. John's. They are lanes that are laid out on charts throughout the entire St. Lawrence Seaway system, St. Lawrence River system — throughout the Great Lakes. Those are, to a large extent, recommended courses; but, in actual fact, those are courses that are steered by all ships, whether on the West or East Coasts of Canada or on the Great Lakes.
Senator Cochrane: Do you still agree, in those same areas that the ships have to flow in the Atlantic Ocean, that there are large numbers of birds in the air still flying around the same areas? What do we do — it is six of one and half a dozen of the other?
Mr. Dempsey: Absolutely; I cannot deny that.
Senator Milne: To begin with, Mr. Pathy, I like your suggestion about the Internet link with other countries, so that other countries can find out potential polluters that are heading in their direction with the click of a button. That is a wonderful suggestion.
Second, I wonder, Mr. Chair, if people who are connected with shipping always travel in fleets? There are seven of you here and I do not know how many more are in the room.
If I recall correctly from the different presentations we have heard, Mr. Dempsey, you said that if a ship's master is unaware that a member of his crew deliberately caused a spill he should not be charged. Someone else, and I am not sure who it was, said that the seamen under international law of the sea should not be charged. Who should be?
The Chairman: If I recall, Mr. O'Connor responded by saying the ship should be charged.
Mr. O'Connor: That is correct. Contrary to other areas of commerce, a vessel is often personified. So a vessel can be prosecuted as if it were a person, and so should anyone who is involved in the pollution. The point is that, if someone is not involved at all in the pollution, they should not be prosecuted.
Canada is taking a new step with this bill in allowing the prosecution of persons who have no involvement or who may have no involvement in the pollution. That is the point.
Senator Milne: That brings me to my next question. I understand you are a lawyer, Mr. O'Connor.
Mr. O'Connor: Correct.
Senator Milne: We have been told by the department that this is not in contravention of any of our international agreements and responsibilities. We have been told by you people that it is. I want to know, and I want you to be specific, what exactly does this bill contain that contravenes MARPOL and how exactly does it contravene MARPOL?
Mr. O'Connor: Approximately two months ago, we sent two briefs, a very short one addressed to this committee, and one to the other place, where we had the pleasure of appearing. We felt it best to send copies to both places. In your package, there are 1 two letters, one dated November 12, 2004, and one dated February 15, 2005. The February 15 letter is to this committee. The November 12 letter is the one you need — it is addressed to the committee in the other place.
I had not intended to go through the detail of it because it can be arduous and somewhat arcane. In that presentation, you have a section starting on page 2 called Bill C-15 and UNCLOS, United Nations Convention on the Law of the Sea, where the sections are set out in detail. To be frank, when we were at the other place we felt there was too much detail in our report. It was very difficult for the members of that committee to grasp quickly the points we were speaking about. We wrote them out.
Our position is that this bill is clearly in contravention of our international obligations under UNCLOS and MARPOL. It is written out in that paper. I will go through it if you wish. One of the examples is that article 230 of the UNCLOS states clearly that, if penalties are imposed by member states, it shall be a monetary penalty only. The only exception to that is that if it is shown that major damage were caused intentionally you would be able to impose prison sentences. I believe our bill goes way too far because it allows for prison sentences regardless of whether the event is major or minor. It contravenes the principle of the UNCLOS in that respect.
The idea of being able to detain vessels, board vessels, order vessels that are not coming to Canada to go to Halifax or St. John's for inspection is clearly not in harmony with UNCLOS, which states what we are to do. All countries abide by this — that is, if you have a vessel that is passing by and you believe the vessel has polluted, you then contact the next port where that vessel is headed. If one of those ports is the United States of America, they are only too pleased to board the vessel there, carry out an investigation and lay charges themselves if they feel there has been something done. International cooperation is what I consider to be the third pillar of the international regime.
Without going into detail, I feel this bill is in contravention. My solution is not to go through it clause by clause and make 55 amendments. If everyone is telling me I am wrong and there is no conflict, let us say it in the bill. If there is a conflict, the international convention, to the extent of the inconsistency, will have priority. Therefore, if I am wrong or someone else is wrong, it does not matter.
Senator Milne: Minimum standards are set under UNCLOS and MARPOL. Are countries allowed to have higher standards?
Mr. O'Connor: Countries under MARPOL and UNCLOS are allowed to make their own legislation. Neither convention prevents Canada from making legislation. It is not simply a general statement. If you look at the Convention on the Law of the Sea, of which I have some sections here, there is a part that talks about protection of marine environment. It tells you what each member state can do. There is a part that talks about enforcement of that legislation that lays out what each member state is supposed to do. There is a section on the safeguards that must be taken. It is very clearly laid out. Canada only just recently ratified this convention.
Remember the third pillar? We were supposed to do it in the 1980s but because of the fisheries problems, the straddling stock problems, they kept putting off the ratification of the law of the sea convention. Those fishing problems are now under control. Canada was then happy and we ratified the third pillar. To my mind, that third pillar sets out what is and is not to be done.
Senator Milne: Does it set upper limits on what a country can do?
Mr. O'Connor: With regard to retention of vessels, imprisonment of seafarers, the application of national law in the economic zone and territorial seas, I suggest to you it does.
Senator Milne: Is the U.S. a signatory to this?
Mr. O'Connor: Not yet, but they will be in the very near future. At present, they recognize UNCLOS as being a modern codification of the international law of the sea. There is only one reason why they have not ratified to date, which will be settled in the near future. It has nothing to do with pollution or birds. It has to do with who has the right to oil that is under the sub-seabed beyond the 200-mile zone. Right now, we cannot go out in the deep sea and drill, but in 15 or 20 years we will be able to. The United States says if, for example, Exxon goes out into the deep sea and drills a well, they will want to keep the oil. The convention says that, beyond the 200-mile zone, what is under the seabed is shared by all of mankind. If someone brings it out, they have to pay a royalty to the United Nations and the royal will have to be divided.
Senator Milne: I am not concerned with that so much as I am concerned with the fact that I believe the American law goes farther than this bill.
Mr. O'Connor: The American law does not go as far. What goes further is surveillance and enforcement. To my knowledge, there is no American law that creates vicarious criminal liability on someone who is not involved in the pollution. It is a first in Canada and, to my knowledge, the United States has no legislation like this.
The United States does the contrary to what this bill is trying to do. This bill is saying let us give Environment Canada's game wardens extra powers. To do that you will have to spend money training and equipping them with ships, planes and who knows what — therefore, spreading the available funding. The United States has taken exactly the contrary attitude. They have channelled funding to the Coast Guard. The Coast Guard has set up flying teams of experts, which we do not have here but should have. Those teams of experts board ships. They can tell if something has been going on. If they find out that something has been going on, even if they do not know where, they prosecute the ship under their legislation for false statements, the legislation that Martha Stewart now knows very well.
They have taken an aggressive enforcement attitude. It is not that their law goes further; it is that their enforcement is more effective because they have channelled the funding there.
Senator Milne: Their enforcement is certainly aggressive. I strongly suspect that you people would rather get caught in Canadian waters than American waters.
The Chairman: You were talking about a difference between American and Canadian law. As we have discussed before, the concept of strict liability, as opposed to mens rea offences, exists across Canadian environmental law.
Is there anything in Bill C-15 that introduces an aspect of strict liability that does not already exist in the Migratory Birds Convention Act? Is there anything new in this bill that does not already exist in Canadian environmental law?
Mr. O'Connor: There is something in the bill that does not exist in Canadian environmental law or in any other Canadian law to my knowledge, and that is clause 5.4. That clause creates an obligation on individuals — principally, masters and chief engineers — to do something to prevent pollution. It does not differentiate between intentional pollution — which I understand is what this bill is trying to stop — and an accident. It basically says that those individuals are criminally liable and face large fines and prison terms if there is pollution, even if it is accidental, even if they were asleep when it took place and had no knowledge of it.
I know of no other legislation in Canada that goes that far. This is not simply "strictly liable." Strictly liable just means that the Crown does not have to prove intent. The reason for that was that the Supreme Court felt that in certain cases, pollution being one of them, it would be difficult for the Crown to prove that someone wanted to do something, unless it was obvious. They decided that the person should come forward and say what due diligence he exercised to avoid pollution.
That is strict liability, and we are not here today to ask you to change that. Strict liability is not written in any law; it is simply a way the Supreme Court has said these laws should be interpreted.
Clause 5.4 goes beyond that and actually places liability on someone who had no involvement. The usual rule is that the Crown has to show that the accused did the polluting, and then the accused has the chance to demonstrate that he exercised due diligence. The chief and the master may not necessarily have had any involvement with the pollution, but they will still be found guilty if they cannot prove what they have done.
Clause 9 of the bill proposes section 13(1.7), which says:
In a prosecution of an offence under section 5.4, it is sufficient proof of the offence to establish that a substance was deposited by the vessel contrary to section 5.1.
If the Crown proves that something came out of the vessel, the chief engineer must prove that he met a higher test than due diligence, that being that he took all reasonable care — whatever that means — although he may have had no involvement in this polluting.
We have in clause 5.4 something that we have in no other legislation, and that is why we have suggested a change to it.
Clause 41, which relates to proposed section 280.2 of CEPA, says that the master or chief engineer will be found liable, but only if they have participated in the polluting. We have no problem with that. Why are we treating them differently there than we are treating them in clause 5.4? They should be treated the same way in the same bill. Our suggested amendment brings clause 5.4 in line with proposed section 280.2
Senator Milne: I have been given legal advice that you have an argument there. There is an act of obligation to take preventative steps in clause 5.4.
Someone mentioned the crowded sea lanes and the large possibility that a ship could sail through an oil slick caused by a ship that immediately preceded it, because they go in procession along these single-lane highways.
I understand that it is very easy to prove, through chemical analysis exactly, which ship an oil slick came from. It has characteristics specific to the ship from which it was discharged, so it would be easy to prove your innocence.
Mr. Weale: That is right. If you can get the ship, you can match the oil in the sea with it. The problem is that we do not have the ability to take samples out to the 200-mile zone. Oil slicks are identified by radar satellite or aerial surveillance. If it is identified by radar satellite, you have to send a plane or boat to look at it, and the planes have no ability to take samples. We have no means of sampling the oil optically. You have to get a sufficient sample to be able to assess its DNA, if you like, and we do not have that capability at the moment.
What you have said is absolutely correct. If you can get a sample and match it to a ship, you are well on the way to establishing proof. The problem is getting the sample.
If oil is spilled in port, it is no problem, but I do not think that is what this bill is trying to address. The existing legislation deals very well with that kind of thing, and of course those spills are usually contained very quickly and the cleanup is fairly efficient.
The problem is where something has happened 150 miles off the coast and five ships have passed through the zone in the requisite time frame. An airplane sees oil on the water but cannot identify from which ship it came, and it has no means of taking a sample for analysis.
It is a practical problem, not a logical one.
The Chairman: Is that not a double-edged sword? That is to say, the onus on the Crown to prove that the event happened and the pollution came from that ship is inhibited by the inability of the Crown to prove beyond a reasonable doubt that the oil came from that ship.
Mr. Weale: That is right. Our concern is that, if there are five ships that may be culprits, the bill will give the power for all those ships to be redirected to Halifax where limited resources will be available to investigate their engine rooms one by one by people who or may not be skilled in oily water separators. The delay that will arise to the innocent ships may be very substantial.
Ships are very valuable pieces of capital equipment. There is a conflict, because we understand the objective of the bill, but the objection that we are raising in this context is a commercial objection, which is that the cost to the innocent party of this method of enforcement can be very substantial. It is possible that a ship could be detained for up to 35 days under this bill.
Senator Cochrane: It is my understanding that the latest event off the east coast of Newfoundland was within close proximity to the shore where so many of these eider ducks were killed or contaminated with this waste oil. That was not outside the 200-mile zone. That was close to the shore. Am I right?
Mr. Weale: I am sure you have better information than I do. All I know is what we have seen in the newspapers. Clearly, the evidence washes up on the shorelines, so the evidence is ashore. There is no doubt about that. I am fairly sure the evidence is gathered by a sampling method, because that is the only way you can extrapolate the number of birds that may have been affected. The extrapolation may well be right. I am not criticizing the method, but I think that is the case. I do not think anybody knows where this oil came from, but I may be wrong on that.
Senator Cochrane: I am pretty sure these birds were found close to the shore, not outside.
If we extend to the 200-mile zone, if we extend the boundaries here, is it not an obligation of the government to ensure that there is more surveillance and more enforcement taking place?
Mr. Pathy: Senator, I think you are absolutely right. I suggested in my presentation that we need to improve our detection methods. We need to spend money to do that. There is not enough surveillance. We do not have the tools. We do not have the tools today to identify where these spills come from, and I believe that is essential.
Senator Cochrane: If the government has put forth this piece of legislation, surely they have intentions of putting more money into it to fulfil the objective of the bill.
Mr. Pathy: I cannot comment on that.
The Chairman: Neither can we.
Mr. Broad: There is some rationale behind existing international conventions, and the difficulty in collecting oil samples 200 miles out is reflected in those conventions.
The Government of Canada, the people that are looking for these ships, the plane that is overhead, under existing law has the right to ask all the information of those ships, those five ships, that are out there, the name of the ship, the name of the captain, its next port of call, whatsoever, and then report back. If that oil slick comes into shore, they can take samples. They know where each of those ships is going, and they can ask under existing legislation that port state government to inspect that vessel and try to match up the oil. There does exist some rationale in the international law.
The Chairman: We are looking at the success rate of investigations, not to say prosecutions in the next port of call concept, and the numbers are not very good so far.
Senator Spivak: Mr. O'Connor, I found your comments on strict liability, to say the least, a bit confusing, but I am not a lawyer. It seems to me, even under the suggested amendment, that innocent people might be drawn into a net. Our whole system of law does not operate as an exact science. Innocent people are often accused falsely. The idea is to minimize that. I do not know if you can eliminate it. Do you agree with the concept of strict liability for environmental offences or not? Yes or no?
Mr. O'Connor: My answer is that the idea of strict liability is not something that Parliament proposed; it was proposed by the courts. It is not whether I agree or disagree with it. Normally, I would say I agree, but there is one caveat to that, and that is that the Supreme Court of Canada is still looking at the question. I do believe that in the next few years we will see this question again before the Supreme Court. The last time it came before the Supreme Court, and the only time it came squarely before the court after the adoption of our Charter, the court was divided. Out of the nine judges that were there, only one still sits on the court, and that is our Chief Justice. She found it to be unconstitutional at the time, as did six of her colleagues, for a total of seven out of nine. It is a very controversial question. It is possible that the Supreme Court will turn it around. For the moment, the law of Canada is that strict criminal liability is legal, and therefore I support it because I support the law.
Senator Angus: Could we have the reference to that case?
Senator Spivak: Our law should not depend on precedent but who are the judges in the court?
Senator Angus: Exactly. Can we just have the name of the case?
Mr. O'Connor: Wholesale Travel Group Inc., 1991.
Senator Spivak: Before I leave this, I do not know if you are correct in saying this was imposed by the court, because it was in the Canadian Environmental Protection Act and other environmental acts. I will leave that, because we have legal counsel coming to help us with these tricky legal questions. Even the idea of a conflict with international law is not yet clear in my mind.
Why do ships come up to Canadian waters to dump their oil? They come up from the States, and you suggested that it is not because of American law but because the Americans have better surveillance and enforcement. Enforcement is what this bill is about, so how does it compare? What is the essential difference between what we are trying to do and what the Americans are already doing so that they come up here to dump their oil?
Mr. O'Connor: There is more than one question in your question, but I will say this: We are not here to ask the Senate to scrap this bill, but I honestly believe this bill is unnecessary. We have legislation now in place that covers the entire economic zone, that makes pollution a strict offence, and that imposes $1-million fines. Prison terms are potentially possible. We have that legislation already. We are not here to say get rid of the bill, because, frankly I do not know how the Senate could do that.
The Chairman: We could defeat it.
Mr. O'Connor: Fine. Well, then I suggest that that be considered. In reality, what we are trying to do here is compare. People have been asking in this committee, what do they do in the United States? In the United States, when I say they have increased in detection and enforcement, I mean they are putting financing and expertise into finding who has polluted and prosecuting the polluters.
By the way, in the United States, their legislation is not strict liability because their courts have so determined. They do not care. They are only looking to prosecute the intentional polluter, but they are putting money and they are putting expertise into finding out who that is and, every time they do find them, prosecuting. That is what I believe Canada should be doing.
We are talking here about game wardens that now are going to be giving orders to ships in the international zone. It does not seem to make sense to me. I think we should have done the same as Bill C-3, which is also before this committee, I believe; that is, channel enforcement and detection to one agency, and that agency should probably be the Canadian Coast Guard. They have the ships. We have the planes, we have the satellites. We need more money; and, with respect, I do not believe this bill is going to generate more funding for enforcement and detection. I think it will spread the funding we have out, and it is even going to be harder to catch polluters. I think we should channel and not spread it out.
Senator Spivak: Let me see if I have caught your intent. There is nothing in the American law that is stronger. It is in the American bucks; they are putting more money into it. Is that what you are saying?
Mr. O'Connor: Money, surely, but expertise, effort, detection. Yes, that all costs money, and they are putting more money into it. That is true, and I think Canada should consider that rather than consider another layer of legislation.
Senator Spivak: That leads me to my last question, Mr. Chair. We have a figure here in terms of who is doing the enforcement. I also tend to question strongly whether enforcement should be carried out by game wardens. We heard there were 900-plus pollution prevention officers across Canada, but then we received additional information, which did not add up to that number at all. Therefore, it is really not just expertise, but the number of people. Are you saying that the Coast Guard has more people? Where are we in terms of the personnel to enforce that, in your opinion?
Mr. O'Connor: I would not like to advance figures as to how many pollution prevention officers there are, because I do not know, but I do know that there are not many. I believe I have heard, by reading the transcripts of this committee, that there are only some 55 game wardens or something like that, which does not seem like many.
However, to my mind, the numbers are easy to change. What is important is who has the ships to go out to this zone. Surely, it is not the game wardens; it is the Coast Guard. Who has the airplanes to fly over ships — and I think we should increase that number of flights, and let it be known publicly that we are doing it so the people are afraid? It may help prevent some pollution. Who has those planes? I do not think it is the game wardens.
The other thing is what are we doing with satellites? They can see through the night and through the fog. We have RADARSAT, which is a wonderful thing, but we need more funding there, to have more overflights, more satellites to do surveillance with. That is what we need, not another piece of legislation.
The Chairman: Just before I go to Senator Angus, in the Wholesale Travel Group Inc. case, is it not the case that the Supreme Court upheld the charge against Wholesale Travel, which was based on strict liability? My understanding is that the Crown won that case and that strict liability was upheld. In fact, Justice Cory said in his judgment that strict liability offences do not violate either sections 7 or 11(d) of the Charter.
Mr. O'Connor: In preparation for this meeting, I have had the occasion to reread — and it takes several hours to do that because it is a very lengthy case —the Wholesale Travel case. Justice Cory did say that. He was speaking on his own behalf and on behalf of Justice L'Heureux-Dubé. They have both retired. They were the only two out of nine that found that there was not an infringement of our Constitution. All seven others said this is unlawful.
However, out of the seven, three of the seven justices, Iacobucci, Gonthier and Stevenson, said they felt it was saved by section 1. Remember section 1 of the Constitution, which says, to paraphrase, except in a modern and democratic society as may be required.
Those three said it is unlawful but that it is saved by section 1; and those three, adding to Cory and L'Heureux-Dubé, made five out of nine who said, for different reasons, it is lawful. Four others, including our present Chief Justice, said it was totally unlawful and not saved by section 1.
So we have a split decision. If you make it into a one-line answer, the answer was that it is lawful, it is constitutional, but for two very different reasons. Out of the nine judges, only one is still on the bench. It is anyone's guess as to what will happen when the case comes back, especially when our Chief Justice strongly spoke out against it and said it was not saved by section 1.
We are not here to ask you to make a declaration about it, because the Supreme Court will do that — maybe next year or maybe in 10 years. The fact is that it is lawful today, as we speak. However, Wholesale Travel is not an eloquent speech in favour of strict criminal liability.
Senator Angus: Frankly, the fleet has pretty well answered all my questions. I saved most of them for the flock, which I believe we will be seeing soon, but I do have a couple.
Mr. O'Neil, I understand that you are a resident in the U.K. at the present time and that you have come over especially for this.
Mr. O'Neil: Correct.
Senator Angus: You mentioned port state control in your remarks, without elaborating. I understand port state control is another one of the sort of international mechanisms that is in place today amongst ship-operating nations to deal with and enforce marine safety and environment and stuff. Could you just give us an example or two of how it works?
Mr. O'Neil: The port state control system was evolved from the so-called Paris MOU, where European countries decided that it was necessary to have some form of inspection on ships entering their ports. Therefore, they collectively decided that they would employ the memorandum as a vehicle for bringing together those countries who were interested in doing this.
The port state control system allows and requires that the participants in the memorandum will inspect so many ships that enter their ports per year with respect to safety or any matter that they want to look at. They can look at pollution equipment, whether the oily water separators are working or not, safety appliances, and so on.
If an inspection is made by one country, that will be valid when the ship goes to another country that participates in that particular agreement. The ship does not get inspected every time it goes to a different country, say within Europe.
From that point, the concept has spread around the world. Now there are port state control agreements — about seven of them, I think — in different regions, in Latin America, in Asia, in Africa and so on.
Canada is a party to the Paris memorandum and to the Tokyo agreement. Therefore, Canada is able to feed information from one to the other, and there is a transfer of information from one port state control arrangement to another port state control arrangement. It was considered initially to be the tertiary defence. The first was the adoption of the rules and the requirement that the flag state should implement them. The second was to make sure that the flag state was doing its job properly, and that is being reinforced in IMO. Right now, there is a proposal for an audit system of states to make sure they are complying with the requirements of the conventions, which is dealing with the sovereignty issue; but they are prepared to set aside the sovereignty issue in the interests of improving safety and pollution prevention. The third range was the port state control. This was, at one time, thought to be a temporary measure.
Senator Angus: Sorry to interrupt, but I am trying to make it very clear here. The term "port state" is used, as I understand it, as opposed to "flag state." If the ship comes in to Sept-Îles in Canada but has a Panamanian flag, we are the port state, is that right?
Mr. O'Neil: Correct.
Senator Angus: Is it in the discretion of Transport Canada or whoever? Let us say they heard a complaint, perhaps from Mr. Dempsey's members or someone, that the ship was unsafe and that the crew felt a little uneasy — there were holes in the tanks or whatever. How does it work in a practical sense, and what is Canada's record so far in this regard?
Mr. O'Neil: The term port state could mean coastal state. It means the country that the ship is coming to. Most port state control agreements require that a certain number of ships be examined. Sometimes it is 15 or 20 per cent. In Australia, they are trying to get close to 100 per cent. They can be examined for various reasons, including if someone makes a complaint. Independent of that, the port state control officers, who in Canada are Coast Guard people, have an obligation to inspect the ships.
Senator Angus: What is Canada's record?
Mr. O'Neil: I am not aware of that. The records are published by the port state control. There is an association of port state control authorities, and they publish information with respect to deficiencies and in some cases they put out a black list on certain flags and certain ships.
Mr. Cullen: The Canadian element of the port state control can access a database to ascertain whether a particular ship had a port state control examination at its prior port and determine the pedigree and history of the vessel.
Mr. O'Neil: That is correct. They can determine the pedigree of the vessel throughout the whole system.
Mr. Cullen: They can verify whether the recommendations or detentions against the ship lodged at the prior port were complied with upon arrival in Canada.
Mr. O'Neil: The port state control officer can detain the ship if he believes the infraction is sufficiently serious to warrant holding it. If not, the ship will be instructed to have the deficiency corrected. It will go to the next port, where the information will be available with regard to that ship. The ship will be inspected again and will be expected to have corrected the deficiencies, whatever they may be. This information is communicated throughout the whole of the port state community.
As Canada belongs to the Tokyo agreement and Paris memorandum, we have the ability to follow the flow of information from all over the world through to the Canadian authorities.
Senator Angus: All the members of the fleet who we have heard from have said that we are good operators, that it is only the bad apples in the barrel, the 1 or 2 per cent, who throw barrels of oily bilge water over the wall in the dead of night. Are the ships that these bad actors operator subject to port state control? Have any of you observed a pattern? Are these so-called rogue operators on modern ships or on different kinds of ships?
Mr. O'Neil: They can be either or all. You talked about dumping barrels of oil. The regulations exist. Why do ships not observe them? What do they gain by that?
The answer to that is more complex than simple. In MARPOL, there is a requirement that reception facilities be provided to allow ships to discharge this material, but, unfortunately, these facilities are not available throughout the world. The master is caught in a dilemma. He has material that is generated through the regular operation of the ship and he has to do something with it. If the reception facilities are there, he should be obliged to use them. Some ports charge for the use of these facilities and some people think the charges are excessive. If they were free, people would use them without question. If a ship can get rid of its waste in a reception facility, it should be compelled to do so.
If it cannot, what will it do? In certain circumstances, under MARPOL, ships are allowed to discharge at a certain rate, but they do not all follow that and that can result in the disposal of polluting material at sea.
There is a shore-based element to this. One of the toughest situations I faced in IMO was trying to convince coastal states that they should meet their obligations. You talked about material from the States being dumped in Canadian waters. If there are reception facilities, there is no need for the master to dump this material in the sea. If Canada wants to do something, it should take on the responsibility internationally for fostering the introduction of reception facilities throughout the world.
Senator Angus: Would they be free?
Mr. O'Neil: Yes. That should be promoted seriously at the IMO by Canada. People turn a blind eye to this problem. I have seen many studies about reception facilities. I have heard countries swear they are observing the regulations, but we know full well they are not.
Senator Angus: It would be much cheaper for countries to install free facilities at every port than to use radar and airplanes for surveillance.
Mr. O'Neil: The cost benefit would be immense. I have grave doubts that Canada has the capability to adequately police the economic zones on the water. I listened to the discussion about identifying the source of the pollution. That is a very difficult topic. It has not been resolved internationally. It is very difficult to get samples and guarantee their origins.
Senator Angus: You say that as a past commissioner of the Canadian Coast Guard, correct?
Mr. O'Neil: Yes. When the limits were extended through UNCLOS and the economic zone was created, our concern was our inability to adequately apply all the existing laws in the economic zone due to our lack of resources, and I do not think that situation has improved.
Senator Christensen: There is much more cost involved than simply the off-loading of the oil. There is the time required to go into port to do that, the cost of berthing, et cetera. It is certainly easier and cheaper to simply continue on and dump at sea, if they are not caught.
Mr. O'Neil: The operational procedure would be that when the ship goes to port to load cargo it discharges this material. There is no lost time. It is a matter of utilizing the time in port, either discharging or loading cargo, to get rid of the particular material.
Senator Christensen: The ones who are dumping are not coming to a Canadian port. They are going to a U.S. port. Why are they not dumping in U.S. ports? It is cheaper to do it in Canadian waters, perhaps.
Mr. O'Neil: I would like to see Canada utilize its influence to require countries such as the United States to provide the reception facilities so that this could not happen.
Senator Christensen: You are saying that the U.S. does not have enough reception facilities.
Mr. O'Neil: Positively, they do not. They are not alone.
Senator Angus: Nearly all the witnesses, including the government officers who were here at the first hearing we had on this bill, after some prodding admitted there was not widespread industry consultation in respect of this legislation, as there normally is, according to other witnesses. Were any of you or the organizations you represent consulted either in connection with Bill C-15 or with its predecessor in the last Parliament, Bill C-34?
Mr. Cullen: As I mentioned in my introductory remarks, the Canadian Maritime Law Association is often consulted on a new policy venture or a change in policy or when regulations or legislation is being drafted. Our body was not consulted.
Mr. Broad: The Shipping Federation of Canada presented a brief to the Department of Environment, but it was not read.
Senator Angus: Was that after this bill was tabled or after Bill C-34 was tabled?
Mr. Broad: Both Bill C-34 and Bill C-15. I was called to a meeting in Ottawa by Environment Canada. Two minutes into the meeting — they had started to ask questions — I asked, "Did you not read our proposals for amendments?" I was told no. The next day, an Environment Canada employee told the chairman of the House standing committee that the Shipping Federation of Canada was onside.
Senator Angus: This was after the bill. In the pre-legislative period, as we have heard from many other witnesses, the normal thing is that the government prepares a paper that goes around — I have seen many of them. They say, in effect, we are developing public policy in this regard with a view to this kind of legislation — here is what we are thinking at the moment, does anyone have input? Was anyone consulted in that way or any analogous way relating to this legislation?
Mr. Pathy: To my knowledge, the international shipping community was not consulted. We work through organizations such as the Shipping Federation of Canada and Chamber of Maritime Commerce. None of those organizations was consulted that I am aware of.
Senator Angus: Mr. O'Neil, you said there was no discussion at IMO that Canada was thinking of doing this?
Mr. O'Neil: Not at all.
Mr. Dempsey: This came to light for the Canadian Merchant Service Guild during last year's Canadian Marine Advisory Council meeting that we hold twice a year in Ottawa. There was a document placed on the table. Mr. Peter Lehay from the ITF happened to be leafing through the document toward the end of the period. He asked a question from the floor, saying that he would like some information as to the criminalization of seafarers. That was the first time we, as an organization, became aware of it. It was something that seemed to be going along by itself until that question was raised. Until then, we had no idea what was taking place.
Senator Angus: It was already a bill in process.
Mr. Dempsey: Yes.
Mr. Cullen: My understanding is that a number of our other members were not consulted, including the Canadian Shipowners Association and the Chamber of Shipping of British Columbia.
Senator Angus: They were here and they said that themselves. I want to ensure that we have not missed someone.
You mentioned, Mr. Pathy, in your remarks, and I understand you have filed a brief to supplement your verbal comments, the high cost of these capital assets. You said you own 20 vessels and that you have 50 to 60 under charter or operation arrangements of some kind and that it is costly if they are detained. Let us say that one of the vessels you currently own was tied up for 30 days under this legislation. What would be the order of magnitude?
Mr. Pathy: If one of our ships were brought into port and detained for 30 days, in today's international framework, the value of that ship, depending on the type of ship, is anywhere from $20,000 to $70,000 a day, an average of $40,000 a day. If you multiply that by 30, plus all the costs associated with the proceedings, we are well over $1 million.
Senator Angus: If you had cargo on board destined for another port, would you be subject to a claim from the cargo owner because they are 30 days late in getting their goods?
Mr. Pathy: Absolutely. In many cases, the arrival of the cargo by a specific date is essential. Therefore, not only would there be a claim, but our reputation would also be affected because a company such as ours gives a service to our customers and clearly would not be giving that service. In addition, there would be potentially a claim from the customer for late delivery.
The cumulative effects of that type of detention are very financially severe.
Senator Angus: Mr. O'Neil was talking about why ships tend to dispose of oily water that is generated in the normal operation of a vessel. Many of the witnesses have referred to oily water separator machines. That is a technology that has been developed. I am not sure I understand what in fact that is; as well, if they are in the ships, why do we have a problem?
Mr. Pathy: In our submission, we have attached a picture and description of an oily water separator. I will ask Mr. Weale to comment on your question.
Mr. Weale: The first question is where does the oil come from? It comes out of the machinery. It is lubricating oil; it is solvents that are used for different purposes. There are all sorts of sources of comparatively small but still significant amounts of hydrocarbon oil that are collected in the bilge of a ship. You also get water in the bilge typically from condensation because you get that against the sides of the ship depending on the ambient temperature and the dew point. You get a mix of water and oil in the bottom of the ship.
The question is how do you dispose of it? There are two ways. One is to capture and retain it, and put it into reception facilities ashore, which is the preferred alternative. The other is to process it in the ship by a system which is an elaborate filtering system. You filter it until you get it down to the acceptable concentration of oil. The international figure is 15 parts per million of oil in the water medium. In special areas such as the Great Lakes or the Black Sea a lower concentration is acceptable. You can think of obvious examples like that.
The work of the oily water separator is done essentially by filtration. There are various methods used to accelerate it, such as the application of heat. At the end of the day, I would not call it inefficient, but it is slow.
This is why the shore facilities are essential. These are two parallel ways of dealing with this stuff. Once you have the concentration down below the 15 parts per million, or 5 parts per million, whatever the requisite figure is, then the residue will be collected. As I say, that could be disposed of ashore or burned in the ship's incinerator according to international rules relating to the emission of air pollution.
From an operational point of view, there are times you would prefer to put it ashore but you have to use the oily water separator, and this may put a constraint on your operation because it takes time. I dare say that the rogues, the criminal polluters, call them what you will, the 2 per cent or 5 per cent this bill we all agree should be trying to hit, are probably under that kind of constraint. It is a time constraint to process the oil on board. If they could get rid of it ashore at the port to which they are headed, the problem would not be as severe.
Senator Fraser: I am a stranger on this committee, but I am learning a lot. Why would it be a time constraint? Do you have to stop? Can you not run it while you are under way?
Mr. Weale: You do run it while you are under way, but it may be that you are trying to process too much liquid and that you do not have time to do it. You will not run it while in port, so you have to retain it and it may start to build up. A ship that is trading deep sea across the Pacific will not have this problem, but one trading up and down the coast may well have the problem of how to dispose of this stuff in the most effective and efficient way. My training is not as an engineer, and my explanation is a layman's explanation, but that is essentially how it works.
Senator Christensen: One of our previous witnesses from the Pacific coast said that there is quite a market for those recovered oils, especially in the east. It is a commodity that has value, therefore.
Mr. Weale: That is right. I believe it was the operator of a container service. That may well be. In our ships, that does not happen, whether because the residue does not have the value or because there is not enough of it. He did say that.
Senator Christensen: In your shipping operations, you do not recover enough to make it worthwhile.
Mr. Weale: Not that I am aware of, no.
Senator Christensen: It depends on the type of shipping that you are dealing with.
Senator Milne: And the ports you are going into.
Mr. Weale: Possibly the type of port you are going into and the economy there, but I cannot comment on that sort of thing.
Senator Buchanan: Thank you for being here.
Senator Angus: They have all already disclosed that none of them is from Nova Scotia.
Senator Buchanan: If I went into their background, I would find most of them were in Nova Scotia from time to time and were probably there during the time we had great governments there. Mr. Dempsey, we have all kinds of people by your name in Nova Scotia.
I met with the international longshoremen's union people in Halifax and the checkers about another matter and just mentioned this bill. They had never heard of it until a week later when they had a call from Mr. Lehay. The ILA is associated with the ITF. They were really concerned that someone had not mentioned to them that this bill was going through the House of Commons. They are not seamen, but they are affected by this bill. They are affected because of the concern they have that a bill such as this could take business away from the port of Halifax. Some people said that is impossible, but we heard that that is not impossible and that it could happen. You gentlemen today mentioned that that could possibly happen.
For people who work in your business, whether they are longshoreman, checkers, masters, engineers or shipowners, that kind of concern gets bigger and bigger as, quite frankly, the bureaucrats get involved. They asked me why a game warden, who they look upon as someone who stops poachers, will now control whether shipping will come into the port of Halifax.
Mr. Dempsey knows we have quite a few seamen in the Halifax region. I have had calls from them saying that they are concerned about whether they may be charged for something they knew nothing about. They are told, yes, but if you are charged you can prove in court through due diligence that you had nothing to do it and you will be acquitted. One captain mentioned the stigma of being charged and acquitted and a lot of people saying he is guilty anyway. Do you agree that the stigma is important?
Mr. Dempsey: Absolutely, I agree, because you read about the charge in your newspaper but the acquittal story is often run in the back part of the paper.
Senator Buchanan: That is right. One the biggest concerns seamen have about this bill is the criminalization sections within the bill, which I understand is unprecedented and a violation of MARPOL. I have not looked at it myself, and I am not a marine lawyer, but I have checked with one of the marine lawyers in Halifax who told me this is not in keeping with MARPOL. MARPOL, for criminalization, requires intentional reckless violation. This bill does not. If they find a little bit of oil next to a ship, a game warden can say, "I will charge you." Is that right?
Mr. Dempsey: That is the way we read it. However, one thing that did not arise here today is the shot that would be heard in the entire industry for the first master or chief engineer or both that were charged and the recruitment or retention part of trying to get people to come into the industry and these senior positions as masters and chief engineers. Ships cannot sail without masters and chief engineers, and the law requires that they are there at all tonnages. When we recruit people, it is so important that we not put obstacles in their way — which is what I see in Bill C-15 — such that they would look at the industry and say, "That is not someplace I want to be." The recruitment and retention issue is vitally important to the industry.
The Chairman: As is always the case on matters as interesting as this, we have run out of time. We could go for a long time. I will ask Mr. O'Connor if we can send him questions we may have that we have not had a chance to ask.
In the 30 seconds remaining, I will ask you to respond to one now. We are very familiar with the question of strict liability and the charging of people, but I should like you to respond to us in answer to a hypothetical situation. It is night, and it is in the fog, and a ship has been shown by the Crown to have been the source of an oily water discharge, bilge or oil by itself. The onus on the Crown in that case is to prove beyond a reasonable doubt that that oil came from that ship. Someone did it, and it is at night, and it is in a fog, and that ship will not come into a port for a long time. Absent strict liability, how will we show who did it if we go beyond the charging of the ship? Would the industry be prepared to keep specific logs to show which engineer was not asleep and was on duty at the time the oil was discharged? In other words, help us to come at it from the other side, if you would. Not now, because we must now leave. If you cannot do that, send us a note through the clerk saying you cannot do that.
It remains only for me to thank you, gentlemen, for your time. I wish we had more time. Members, thank you for your questions.
The committee adjourned.