Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 12 - Evidence - April 21, 2005
OTTAWA, Thursday, April 21, 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 8:07 a.m. to give consideration to the bill.
Senator Ethel Cochrane (Deputy Chairman) in the chair.
[English]
The Deputy Chairman: I call the meeting to order. Good morning, everyone. I want to let you know that I am the deputy chair of the committee. The chair, Senator Banks, is unavoidably absent. He is with the defence committee, and they are travelling. If you will just bear with me, I will do the best I can.
I understand this morning we have first of all people from the St. Lawrence Economic Development Council. We have Mr. Véronneau and Mr. Gagnon. I want to welcome you all here and hope that you will have a good morning.
First of all, I must ask, how did you want to go with this? Did you want to present a brief to us separately, or did you just want to present one brief and then we will ask questions. How would you like to approach this?
Guy Véronneau, President, St. Lawrence Economic Development Council: We would prefer to go over our brief and answer your questions, if it is possible.
The Deputy Chairman: That is just fine. Mr. Vérronneau, please proceed.
[Translation]
Mr. Véronneau: Madam Deputy Chair, with your permission, I will be making my presentation in French. First of all, I want to thank the committee for agreeing to hear from us this morning. My name is Guy Véronneau and I am the President of the St. Lawrence Economic Development Council, or SODES. I am also the Co-Chair of the National Marine and Industrial Coalition, along with Mr. Ranger, the Deputy Minister of Transport Canada, and the Co-Chair of the Forum de concertation de l'industrie maritime du Québec, along with Quebec Transport Minister Julie Boulet.
Previously, I served as President of the St. Lawrence Seaway Management Corporation from 1998 to 2003 and as President of the MIL Davie naval shipyard in Quebec City from 1989 to 1996.
Established in 1985, SODES has approximately one hundred members, primarily shipowners, port authorities, shippers and professionals in the marine transport industry. Other sectors of the marine community that are represented include ports, municipalities and public and para-public organizations. SODES' mission is to promote and protect the economic interests of the St. Lawrence community with an eye to sustainable development.
Maritime traffic on the St. Lawrence is estimated at 100 million tones a year, which amounts to about one quarter of total Canadian traffic, represents $3.3 billion in economic fallout in Quebec and supports 26,000 jobs. In Canada as a whole, the overall economic fallout was $9.1 billion in 2003, with 93,000 dependent on the marine transport industry. Also in 2003, over 95 per cent of products exported by Canada to countries other than the United States were exported by ship, a clear indication of the importance of this industry to the Canadian economy.
Straightaway it should be noted that SODES is in agreement with the main objectives of Bill C-15. Environmental protection is a responsibility that should be shared by all socioeconomic stakeholders, with the marine transport industry being no exception.
Offences resulting from intentional acts or from serious or repeated negligence must be severely punished by Canadian laws. Unfortunately, in our view, Bill C-15 oversteps these objectives.
The industry is Canada has become accustomed to harsh, but fair, laws and regulations. However, this cannot be said of Bill C-15. The proposed legislation targets all businesses and all individuals, regardless of their record or performance on environmental protection.
We learned of Bill C-15's existence only after it had come before the Senate committee for consideration. Needless to say, we were not consulted. We have followed your proceedings, however, with considerable interest.
Numerous issues have been raised by other speakers, notably the conformity of the bill with the Constitution and with international conventions, duplication with existing regulations and the role of wildlife officers vis-à-vis qualified Transport Canada inspectors. We will not revisit these points, although we do feel that they are very important considerations.
Instead, we will be focusing on our regional situation, on the economic impact of minimum fines, on insurance and lastly, on sustainable development. These are questions that have been brought to our attention by our members and that, in our estimation, should be raised before this committee.
With respect to our regional situation, by the admission of Environment Canada's own representatives, Bill C-15 is designed t o solve a problem that occurs on the ocean coasts. This problem is either non-existent in our region, or nowhere near as serious as the situation along the Atlantic Coast. In 2004, there were reports of 33 cases in the St. Lawrence region in which noxious substances were discharged, all of them involving small quantities. All of those cases were investigated by Transport Canada, pursuant to the Pollution Prevention Regulations arising from the Canada Shipping Act.
The investigations culminated in charges of negligence and fines were imposed. It should be noted that virtually all of these incidents occurred in ports. The effects of the spills were contained thanks to measures in place. The following are a few examples of spills: Matane, January 2005, 6 litres spilled, $3,500 fine; Rimouski, July 2004, two barrels, $10,000 fine; Québec, November 2004, 25 gallons, $15,000 fine; Sainte-Anne-de-Bellevue, August 2004 — I believe it happened at a marina — 4 litres of diesel oil, $600 fine.
As far as we are concerned, the Canada Shipping Act, together with the Port State Control, meets the needs of Canadians in respect of the regulation and sanctioning of spills, whether or not they occur in migratory bird habitats.
In recent years, considerable efforts have been made to increase public awareness among domestic stakeholders as well as at the international level through the IMO. The deterrent effect of these actions and the impact of the existing legislation are such that the number of spills has been decreasing every year in our region.
Under Bill C-15, every charge will automatically result in fines. As a result, all vessels of over 5,000 GT would be subject to minimum fines of up to $100,00, rather than the amounts I mentioned earlier, with the consequences one can imagine for the companies affected.
What kind of fines might other companies be facing? In many cases, the companies involved are small and one has to wonder how these fines would affect their operations.
Ordinary fixed premium and cruise insurance does not cover payment of fines and court costs. It covers cleanup costs after a spill has occurred. Mutual insurance may cover fines and court costs. Most cruise lines carry standard insurance. If Bill C-15 is enacted, they will want to protect themselves from higher fines by switching to a far more costly type of insurance which many companies will simply not be able to afford.
Furthermore, insurance companies have let it be known that given the high costs of minimum or general fines associated with Bill C-15 as well as the court costs, they will either be forced to increase deductibles significantly, or deny coverage altogether.
Most cruise vessels displace under 5,000 tonnes and therefore are not subject to minimum fines. However, the concern is that they will still be subject to very severe penalties, much more so than under the Canada Shipping Act, because the aim of Bill C-15 is to penalize offenders severely, even for small or accidental spills.
Quite simply, the bill requires the industry to guarantee that its operations will reduce the risk of accidents to zero, and regardless of the activity involved, providing such a guarantee is an impossibility.
Let us remember one thing. No shipping company or cruise line that we know of would run the risk of deliberately discharging toxic substances into the Seaway. Except in a few rare instances, spills that occur in our region are accidental, and almost always involve very small quantities.
Given this reality, why is there a need for extreme minimum fines and virtually automatic criminal charges? What more will Bill C-15 contribute to St. Lawrence conservation efforts? What is it that we really need? We need resources to apply existing legislative provisions. The Canada Shipping Act provides all of the tools needed to achieve the objectives of Bill C-15. It is not for want of legislation and regulations that offenders cannot be apprehended and fines. The problem is the shortage of human, technical and financial resources.
What is lacking is Coast Guard personnel and traditional and electronic detection methods, along with patrols and skilled officers trained for this type of work. Canada would gain more, in terms of environmental protection and the respect of its trade partners, if it acquired the resources that are needed to enforce existing laws, rather than make more laws. This approach is quite simply counter-productive.
Over the last decade, greater emphasis has been placed on environmental protection in the St. Lawrence region. For example, a sustainable navigation strategy was developed as part of Phase III of St. Lawrence Vision 2000. The strategy incorporates a new approach to dredging management, the development of joint efforts with river users and communities, particularly in the case of spills, and voluntary measures to impose speed limits on the river to counteract bank erosion.
I have with me a copy of the sustainable navigation strategy. Unfortunately, I have only one copy. However, if the committee is interested, we can ask Environment Canada to send you as many copies as you would like.
[English]
Senator Angus: It would be helpful to see that. If you can order it from Environment Canada, Ms. Hogan.
The Deputy Chairman: That was the point I was going to make, Mr. Véronneau. If you could have that for our record, we would appreciate you giving it to the clerk, and we will distribute it to our members as well.
[Translation]
Mr. Véronneau: The industry and government have also worked together to develop ballast water and waste water regulations which should be enacted in 2006. These are just a few examples that I have. In recent years, the St. Lawrence marine transport industry has worked in partnership with government environment departments and with river users and environmental organizations, from the perspective of sustainable development.
Bill C-15 sends the message that shipping companies are antisocial elements totally indifferent to environmental protection, and that the only way to bring them to heel is to impose a set of extremely severe rules on them.
It is patently obvious to us that Bill C-15, which was drafted without any industry consultation, reflects an antisocial attitude toward the industry.
The objectives of Bill C-15 amount to a renunciation of sustainable development, in that they are merely punitive. Moreover, the effects of the proposed legislation could be devastating. After years spent overhauling our practices, raising awareness and developing cooperative working methods, and working together effectively with river communities and environmental groups, it is very difficult for the people in our region to understand the government's attitude.
The recommendations that the committee may wish to make for amending Bill C-15 are the only chance for the St. Lawrence region of avoiding a very bad situation.
We would like to make the following recommendations: maximum fines should be preserved, and minimum fines removed, so that penalties can be adapted to the circumstances; the presumption of innocence must be recognized; a distinction must be drawn between accidental and intentional offences and between discharges of large and small quantities; there must be compliance with Canadian standards in the area of corporate liability; steps must be taken to ensure the bill is consistent with the letter and spirit of the international conventions to which Canada is a signatory; last, the bill should contain a provision drawing attention to the existence of these conventions.
Thank you for your attention. We would now be happy to answer your questions.
[English]
The Deputy Chairman: Thank you very much, Mr. Véronneau. While the chair does not usually interject here, if I may, I have just a couple of things before we start with our witnesses.
On page 3 of the brief that you have presented to us, you say that the Canada Shipping Act provides a complete response to the needs of the Canadian government in respect of the regulation and punishment of fines. I must tell you, C-15 does not replace the CSA. It still will be used in these cases. That is one point I have to make to you.
On the next page, you say that the department will not have to prove that an accused party is guilty. I must tell you that we have been told the department will have to prove that an accused party is guilty. The department will have to prove their due diligence to the civil standard that is there. I just wanted to correct that statement that you have here in your brief.
Mr. Véronneau: I am not a lawyer, so we are responding to some arguments that have been made to us through our membership. If this presumption of innocence is taken into account, then this is part of a problem that is solved, as far as we are concerned.
The Deputy Chairman: The department will have to prove. Thank you so much.
[Translation]
Senator Angus: Welcome to Ottawa and thank you for agreeing to testify before our committee. Are you comfortable with questions in English?
Mr. Véronneau: If we have a problem, we will rely on the interpretation services.
[English]
Senator Angus: I understand this organization you are representing is a volunteer organization. It is not a business. You are not shipowners; you are not representing that industry. Could you just elaborate a little more?
Also, I understand, Mr. Véronneau, that you are a volunteer. You are the chairman, independent, and you are a retired man.
Mr. Véronneau: Yes, twice.
Senator Angus: Could you just explain that a little more, please? We have great empathy with retired people here. We sometimes even believe what they write about us, but not always.
Mr. Véronneau: The president of SODES has been an unpaid volunteer throughout the history of the organization. The society is a not-for-profit organization. The objective is to promote the economy of the St. Lawrence, and this is done, as I have mentioned, with a view to future generations. Therefore, we have a number of participants in our association. Some are shipowners; I believe maybe six or seven. We cover all aspect of maritime activity on the river.
One of the things that concerns us most is the competitiveness of the Canadian economy. That is why I have worked in the past year and a half to promote the formation of a national maritime and industry council for Canada with the participation of businessmen coming from expediters, shipowners, different aspect of the economy, with four deputy ministers to start with; Mr. Ranger, from Transport Canada, is the co-chair with myself. We have the participation of the deputy minister of external commerce — I do not know what they call this department anymore because it seems to be changing its name all the time. We have Industry Canada also participating, and obviously the Department of Fisheries and Oceans participating. Eventually, I would like to see the Department of Environment join the table, as we have done with the conservation forum in Quebec, where you have environmental groups, unions and different participants in this aspect of the economy around a table to discuss problems and try to find sensible solutions.
Senator Angus: Do you have environmental groups that are members of SODES?
Mr. Véronneau: Not in SODES as such.
Senator Angus: You have environmental organizations in the St. Lawrence —
Mr. Véronneau: In the Quebec forum.
Senator Angus: Did you indicate there are wild bird preserves in the St. Lawrence? Is this correct?
Mr. Véronneau: Yes, it is. We have millions and millions of birds that come in and out.
Senator Angus: You have heard the issue that has us very concerned here in this committee. It is a very major problem for Canada that is occurring further out on the east coast, particularly in Newfoundland and perhaps other Maritime provinces. Do you have similar problems with oily birds being washed up along the St. Lawrence?
Mr. Véronneau: No, not really. What we have read about what is happening on the east coast, particularly in Newfoundland, is maybe 1,000-fold what we see on the river. We are not talking of the same situation at all.
Senator Angus: Can you explain that at all?
Mr. Véronneau: Not really. I am not cognizant enough with the situation in Newfoundland to comment on what is happening there. In all frankness, this is something I have learned about in reading about the committee's work.
In our case, as I have mentioned, we have worked for the past 10 years, but with acceleration in the past five years. We have the documents I have mentioned. The participants are very numerous, but you have the Coast Guard, you have Fisheries and Oceans Canada, you have Environment Canada, you have Natural Resources of Quebec, et cetera. We have a lot of people that work and put out a policy with a view to sustainable development.
Senator Angus: The point I am making is you have many thousands and millions of birds in and around the areas where you are operating, but you say you do not have the oily bird problem. Do you have a lot of shipping passing through these waters, international shipping?
Mr. Véronneau: Yes. I do not know the figures, but certainly tens of thousands of ships pass through the St. Lawrence every year, some of them under the winter conditions.
Senator Angus: Just one last point, I had not heard this before. You indicated there was, I think in both the English and French copies of your brief, an issue about insurance.
Mr. Véronneau: Yes.
Senator Angus: Could you just elaborate on what your point is there, please?
Mr. Véronneau: The situation now, since 9/11, has made insurance much more expensive. The economic activity on the St. Lawrence is in large part looked after by small companies. We were asked, and we approached maritime insurance brokers to determine their reaction to Bill C-15. We were told that they would look carefully at the bill. Insurance premiums have risen substantially since 2001. I have told you what they told us: They would certainly think of having a franchise that would be higher, and that likely they would raise the premiums. In cases of excursion-related risks for smaller companies, I doubt that they would have the financial means to pay for increased insurance premiums.
The Deputy Chairman: I have a supplementary to Senator Angus' question and your response with regard to the St. Lawrence River where the birds do not suffer from bilge oil spills. I must tell you that off the East Coast of Newfoundland, that is definitely a problem. Ships that travel the St. Lawrence dock at certain ports, do they not?
Mr. Véronneau: Yes. They sail through to ports on the Great Lakes or they stop at a port on the St. Lawrence.
The Deputy Chairman: Ships in Newfoundland waters have travelled from Europe and continue down our coastline without docking, and they dump their bilge oil out at sea on their way to the U.S.
Mr. Véronneau: I understand that from reading about the situation. I do not want to comment on that because we do not know firsthand the nature of the situation. I refer back to the fact that we should prosecute rogue pilots, captains and companies to the maximum.
The Deputy Chairman: I agree. That is exactly right. Senator Buchanan is next and he is from Nova Scotia.
Mr. Véronneau: Senator, we met a long time ago when we were trying to develop Sable Island.
Senator Buchanan: That is a long way back. I want to comment on something that the deputy chairman said, on which she and I disagree. There is no doubt that under this proposed legislation the laying of a charge against the captain or the engineer would be criminal in nature. Under the Charter, Canadians cherish the presumption of innocence. In this situation, the Crown does not have to prove much of anything. Rather, the Crown and the game warden or conservation official have to show that there has been a spill, whether accidental, intentional, willful or otherwise. As soon as they are able to show that a spill has occurred, the onus then shifts to the accused, who, by due diligence, as the deputy chairman has said, would have to prove that it was an accident, non-wilful and not with mens rea. They would have to prove their innocence in a criminal, not civil, action. If the accused were acquitted, that would be the end of it. However, that would not be the end of it for the captain or the engineer who would always have to bear the stigma of that criminal charge.
We have to be extremely careful that we do not mix this sort of situation up with a civil liability. As the proposed legislation is written, it would not be a civil liability but, rather, a criminal charge and so the onus would shift. Granted, the Crown does not have to prove the charge beyond a reasonable doubt, and the accused would have to show due diligence, but it would be a criminal offence; and that onus has shifted. Do you agree with that?
Mr. Véronneau: As I mentioned, I am not a lawyer, but we have been told that would happen. Therefore, we object to that. If it were not the case then we would not object.
Senator Buchanan: You have been told correctly.
Senator Christensen: To follow that point, it could be either a summary or a criminal conviction, depending on the seriousness of the offence.
Senator Angus: A summary conviction is still criminal, but to a lesser degree.
Senator Christensen: The intent of Bill C-15 is to try to ensure that dumping oil at sea is not less costly than paying to have it pumped out legally in port. If a ship dumps its bilge oil at sea and gets caught, it will cost more than if it had been pumped out at port.
Mr. Véronneau, you said that you have many migratory birds in your area, and yet you do not see the results of oil spills. We had the same response from the West Coast witnesses as well. That seems rather strange. I do not understand why ships would dump oil only off Newfoundland. Therefore, I asked for a map of the ocean currents and it became quite obvious why you do not see oiled birds in those other areas. Our major ocean currents are offshore elsewhere, and the only place that they are onshore is Newfoundland, and those currents bring the birds into shore. You might have dumping in your area but would not see the results of it because of the direction of the ocean currents in your area. Birds might be damaged badly from oil but you would not see the evidence of that. The same thing would happen in the Pacific area.
Do you read anything in Bill C-15 that is not in other kinds of environmental legislation? Do you see stricter requirements in Bill C-15 that are not already in other forms of environmental legislation?
Mr. Véronneau: I must tell you that it is not that I do not want to answer your question but that I am not an expert in environmental matters. Therefore, my reaction is similar to that of other Canadians being made aware that a piece of proposed legislation states that if you kick a can of oil on the deck of a ship and it goes into the water, you could face having a criminal record. This is very foreign to Canadians, and not something that I would like. As to the effects of the currents in the St. Lawrence, we have a peculiarity. As a Montrealer, when I would go to Quebec, people would always talk about the tide in Quebec City, which is 1,500 miles inland. However, it is true, there is a tide. As a ship builder, I can tell you that we cannot launch a certain kind of ship until October because we need the high tide at that time of year. Therefore, if you had a number of affected birds, as you are talking about here, we would see that. When I am talking about "awareness," the fact is that today we have so many incidents reported. I realize now that, to you, 33 incidents are not very much, but to us it is. However, it is better than it used to be, and this year it will be far less. If we have that many it is because everyone contributes. It can come from an airplane or a yacht, or people on the shore. We just see a slick of oil on the shore.
When I was president of the shipyard, if we had an incident alongside the wharf, people from the department would be down our necks so fast. I would not even know that we had an oil slick, and they would be there. It is a question of people being aware, and wanting to protect a richness that is very important to us.
Senator Christensen: More enforcement on what we already have as opposed to new legislation?
Mr. Véronneau: To me, it is common sense. It is a very different situation. You have passing ships — again, I cannot put enough emphasis on it. We do not want to see rustbuckets in the St. Lawrence. I tell you very frankly, I wonder why advanced nations such as Canada, the United States, France and Great Britain are so complacent, but I would be raising a question that has been debated for many years. We have instituted Port State Control and there is more and more legislation.
To me, as a businessman, it seems a pity that we pile on one bill and then we pile on another one because something is not working. We recognize that there is a particular problem in Newfoundland, and it should be addressed. As a realistic person, I believe that if we do not give ourselves the means to protect our sovereignty, the means to protect our coastline — I hear people say "Raise the fine and by itself it will solve the problem." I find that very peculiar because, in homicide, we always say that the ultimate penalty will not change what the person will do. Perhaps you will tell me that it is emotion. Yes, maybe it might be emotion, but it is not always emotion.
Senator Angus: On a clarification, sir, you started to refer to a term "rustbucket." Could you explain that?
Mr. Véronneau: These are what we call the rogue operators. In the marine world, they exist. A lot of people are capital asset players. They buy a ship and they do not care if they make a cent or two. That is not the purpose. The purpose is to wait for the right time, then sell the ship, and that is how they make their money. In order for them not to lose money in between, they have to cut costs, so they have untrained people on the ships and they do not do the maintenance. It is a small percentage but it exists. With the Port State Control, we have a lot of success in Canada and see fewer of these ships. On the St. Lawrence, we often had problems with sailors in the dead of winter who did not have shoes and things like that. It is a disgrace. This has been solved. It is difficult to use the words "solved forever" because there is always a new angle. There are always a small number of people who are doing this and they must be dealt with severely. However, in order for them to be dealt with severely, they must be caught.
Senator Hubley: I just wanted to try to put Bill C-15 into perspective. The government wants to be in a position where they will be able to use this bill to effectively do a lot of the things that now fall under both the Migratory Birds Convention Act and the Environmental Protection Act. However, they have found that, under those statutes, they do not have the tools to enforce them properly. I wanted to remind you that the Migratory Birds Convention Act — that is one of the acts that Bill C-15 will affect — has had regulation since 1948 dealing with oil pollution and birds. That is in place. Even without Bill C-15, that act can be enforced in Canada's territorial waters, within the 12-mile limit. Bill C-15 will probably have less of an impact in the St. Lawrence River than it will have in what we call the exclusive economic zone. With Bill C-15 we are able to extend the enforcement, and by doing that we are certainly bringing in the area of the Grand Banks along Newfoundland, and that particular area. I wanted to let you know that there are regulations in place now that can be used, but Bill C-15 will strengthen that situation.
My question relates to the fact that you mentioned a number of spills that you had: 33 in 2004. The size of the vessel involved is an issue as well. Do you know the size of those vessels? Were they less than the 5,000 tonnes?
Mr. Véronneau: No. Except for the last one, which was a marina that was caught, I believe, I'm not sure. I do not think it is a ship, but the others are 5,000 and more.
Senator Hubley: I have a question on the subject of fines. That has certainly been an issue that the shipping industry has brought to our attention many times. It is an interesting problem in that if we look at the number of birds that die each year from illegal dumping of bilge water along the coast of Newfoundland, 60 per cent of the dead birds that come ashore have been oiled. It takes a minute amount to destroy a bird. Down along the coast of the United States — there are many other reasons for this — the percentage of dead birds found there is much lower. I have heard 2.5 per cent to 5 per cent. I have heard 2.5 per cent where oil is implicated in that death. It seems that when the shipping traffic comes through, for some reason Canada is getting hit harder than other areas. We feel that the fine system will be a necessary part of correcting that situation. The fines are only bringing them in line with other jurisdictions. I believe they are in line with the United States' and certain European fines. Do you have a comment on that?
Mr. Véronneau: Look at the situation on the coast of Newfoundland and common sense tells you that ships are passing by at night, and either they are going or coming from the U.S. It is a channel to go to Europe, a situation that does not exist on the West Coast. Most probably, ships are coming from Japan and China straight to Vancouver, but maybe that is not the case. There is a particular situation.
When I was President of the St. Lawrence Seaway, I was aware of the fact that we heard more about the problems of pollution on the Great Lakes from the U.S. side than from Canada. Fines and surveillance did not stop more Americans than Canadians from polluting. It is a difficult situation to analyze.
I fervently believe that you must implement your policy. That is why I am coming here and telling you that we will need to have a Coast Guard that has the means to implement the law. We do not have the American Coast Guard. The American Coast Guard is the third or fourth navy in the world. Obviously, our navy is not in the first 20, so our Coast Guard is far behind. We need to have the means to enforce the law. If we have a particular situation I would like to see the legislation address it and ensure that we concentrate on the enforcement. I understand what you are saying that the chances of something being done on the St. Lawrence on the basis of Bill C-15 are probably remote. Perhaps three or five years hence, I do not know but it will happen. Human error will manifest itself at some time. Someone might spill three litres of gasoline and, bingo, they will go to jail. I know this will happen and it will be disastrous.
Senator Spivak: Mr. Véronneau, are aware that the penalties and the fines in this bill are in line with those in the Canada Shipping Act, as pointed out in a brief that will come to us this morning. You have not suffered unduly from the terms of that legislation. There are other things in this bill that strengthen the case for migratory birds. Why are you so worried about this bill when you have been operating under the same kinds of regulations without undue problems?
Mr. Véronneau: It is because the penalty for the three examples that I gave would have been $100,000, although they involved very small amounts of fuel. I am told that the bill does not take into account the size of the spill or whether it was a mistake. If the oil is there, authorities do not want to hear any excuses for it. It is like getting a speeding ticket. If you were going too fast, you got a ticket, no excuses. I am saying this not in favour of being able to make up an excuse but rather for economic reasons.
Senator Spivak: I do not think that is accurate. I do not think the bill will operate in such a peremptory fashion. The courts take into account the proper legal definitions. Certainly, in terms of fines and imprisonment, the term of imprisonment is reduced in this bill from five to three years. That would be for indictable offences but we are talking mostly about strict liability.
Senator Buchanan: We are talking about summary convictions.
Senator Spivak: Yes.
Senator Buchanan: A person guilty of a summary conviction is a criminal.
Senator Spivak: There are two different things here. I Bill C-15 than they were under the current regulations that support the Canada Shipping Act.
Mr. Véronneau: I would submit, senator, that as a Canadian citizen I do not expect to wait to realize my fears will not be founded.
Senator Hubley: Perhaps Senator Spivak explained this but strict liability is not new to Canadian laws. If an oil spill occurs, there has to be an investigation so that a "fingerprinting" of the oil that was discharged from the particular vessel can be determined. When the investigation reveals that the ship is guilty then a charge is laid. Then, the onus shifts. If the shipowner can prove due diligence, which can mean many things, then the charge does not go forward. The shipowner has that option.
Senator Buchanan: The charge has already been laid, though.
Senator Hubley: Our witness mentioned the analogy of the speeding ticket. We live by regulations in Canada; and they are in place to protect us.
Senator Buchanan: Speeding tickets are not criminal in nature.
Senator Hubley: Due diligence is a defence, and that is important.
Senator Spivak: That is right.
Senator Buchanan: It is still a criminal charge.
Senator Hubley: That is because a criminal act is committed.
Senator Buchanan: Criminal acts are wilful, intentional and with mens rea.
[Translation]
Senator Lavigne: Did the spills to which you referred occur in the St. Lawrence?
Mr. Véronneau: Yes.
Senator Lavigne: How many spills occurred?
Mr. Véronneau: According to this document, there were three major spills in the St. Lawrence: in 1990, there was a 260-tonne spill near Anticosti Island involving the Rio Orinoco; in 1988, the Czantoria discharged between 100 and 400 tonnes near Saint-Romuald; the Pointe-Lévy discharged 400 tonnes at Matane. To my knowledge, there have not been any major spills since 1990.
Senator Lavigne: Did the parties responsible for these spills take the necessary steps to restore the damaged habitat?
Mr. Marc Gagnon, Director General, St. Lawrence Economic Development Corporation: In the case of the Czantoria, the spill occurred at the Ultramar dock in Saint-Romuald. Steps were taken immediately by emergency response agencies to deal with the situation.
Senator Lavigne: Is the party at fault responsible for paying for the cleanup?
Mr. Gagnon: There is a contingency fund in place. However, in the case of the Czantoria, Ultramar paid for the cleanup operations.
The incident involving the Rio Orinoco was more serious, because the vessel ran aground off Anticosti Island and had to be towed to port. Consequently, it was more difficult to recover the 200 tonnes that were discharged. The spill occurred at sea, and not in port. The vessel and her cargo — I believe she was carrying bitumen — were recovered, with the exception of the 200 tonnes that were shipped to Lévis by the Groupe Desgagnés, the firm contracted to free the Rio Orinoco.
The response time in the case of all three spills was very quick.
Senator Lavigne: In how many cases were the parties responsible for spills or incidents that occurred in the St. Lawrence not identified?
Mr. Gagnon: In 2004, charges were laid in 33 cases and fines paid in accordance with the Canada Shipping Act. To our knowledge and according to Transport Canada data, there have not been any spills since then. In all of the examples given, the spills involved small quantities. We are unaware of any other spills. However, the number of spills has been declining over the years. Incidents are reported and the cleanup is done immediately.
Senator Lavigne: Have the offenders always been identified?
Mr. Gagnon: In the 33 cases mentioned, the offenders were charged and fined. As to whether other spills have occurred, you would have to put that question to Transport Canada.
Senator Lavigne: Mr. Véronneau, earlier you gave the example of a person who knocks over a container containing oil which then falls into the ocean, or into the St. Lawrence Seaway, and pollutes the water. Does this kind of thing happen often? It makes me think of people who empty their car ashtrays on the ground or litter the streets. Cities are getting dirtier and people are not paying attention to what they are doing. I hope that you do not use this example often, because I do not think it is the best one to cite. I simply wanted to comment on that.
Mr. Véronneau: There have been cases in the past where that has happened.
[English]
The Deputy Chairman: On page 5 of your brief, you mentioned how the penalties introduced by C-15 put Canada at the top of the pyramid in the international community.
I just want to remind you that the U.S. belongs to MARPOL, and their penalties are much more severe than Canada's. This is why we need C-15, so foreign ships will no longer find it profitable to dump their residue, their bilge oil that is killing our birds, into our waters.
Mr. Véronneau: I hear what you are telling me, madam. I just have a different opinion. I know the Americans are more severe than we are, and I believe that is why people are more respectful also. What we are talking about is a minimum fine, where it is not taken into consideration if it is a huge spill or a small spill, if you have done it on purpose, if you are malicious or if it is an accident. That is the big difference. That is what we object to.
If somebody will be fined $1 million or $2 million because they come along our coast and empty their oily water, hey, good. Give it to them. We are in agreement with that. The problem is that we hit everybody, good citizens, people that work hard, small companies that have very little means. We are talking of our situation on the St. Lawrence. We are not talking of what is happening alongside the east coast.
The Deputy Chairman: Mr. Véronneau, I am so glad you are passionate, because you are passionate like I am about the birds.
Mr. Véronneau: I am too about the birds, you know. I have six princesses, and I want them to live in a world that is as good as the one I came into.
The Deputy Chairman: You are wonderful.
Mr. Véronneau: I think I should quit while I am ahead.
The Deputy Chairman: Just one other little thing. You were saying you were not consulted when this bill was brought forth. Well, I just want to tell you that on Tuesday we heard from a lady called Elizabeth May. She is an environmentalist and she was not consulted either. I just want you to be aware of that.
We are going to close up your testimony and go on to more testimony. We really appreciate you coming, and also your volunteerism; I am so happy with that.
Senator Angus: Senator Buchanan asked me if I would ask one question on his behalf. He had to go to a Canada-U.S. meeting.
The Deputy Chairman: Just one little one.
Senator Angus: The question was, in the St. Lawrence, in the areas that you are talking about, I understand that is not a big fishing ground and there are not a lot of fishing vessels in the St. Lawrence, smaller craft, like there are off the coast and in the Grand Banks. Is that right?
Mr. Véronneau: There is quite a fishing industry in the St. Lawrence and in the Great Lakes also. It is maybe not as big as what is done on the east coast, sea fishing, but it is certainly an important part of the economy of the river.
The Deputy Chairman: Thank you very much.
We are next going to Ducks Unlimited Canada. We are going to hear now from Barry Turner, Ducks Unlimited Canada and Mr. Mark Gloutney. Would you like to begin, Mr. Turner?
Barry Turner, Director of Government Relations, Ducks Unlimited Canada: Thank you, madam chairperson and good morning senators. When Mr. Gloutney and I rose early this morning before sunrise to come to the committee, we thought we were heading into a duck blind.
I am the director of government relations for Ducks Unlimited Canada, and I am going to give you a brief history of Ducks Unlimited. Mr. Gloutney will get into more specifics about the bill.
Yesterday, I was in an elevator in Ottawa, and a total stranger recognized my duck pin. He said, do you work for Ducks Unlimited Canada, and I said yes. He said you are the model conservation organization for Canada, at which point I did not disagree.
Ducks Unlimited Canada, senators, has been around for 68 years, since 1937. We have offices across the country, with 450 staff. Our annual budget is over $80 million a year. We have 700 events annually across the country that raise funds for our conservation work, and we have 94,000 people attend those events. We have 8,200 volunteers across the country. It sounds like a political party, does it not?
Senator Christensen: It sounds like a pretty good one.
Senator Angus: The key word being party.
The Deputy Chairman: Order, please.
Mr. Turner: Sorry, I just wanted to see if you were all paying attention.
Our main mandate, as most of you know, is to protect and restore and enhance millions and millions of acres of wetland and surrounding habitats for the benefit of waterfowl and other wildlife — and in fact for people. Our activities stretch from the boreal forest across all of Canada, to the shores of the Great Lakes and to both of our coasts. We have extensive education programs across the country. In fact, we have agreements with thousands of landowners to work with them to protect the wetlands that appear on their lands for the benefit of waterfowl and other creatures.
You are also aware, I am sure, that we have a sister organization in the United States called Ducks Unlimited Inc., and they do very similar work in America.
The reason we are so passionate about what we do is because there is only about 30 per cent of the natural wetlands remaining in Canada. It is our mandate to try to protect them, and we need more policies and legislation across Canada to help us do that.
On that note, I am going to ask my colleague from our office in Amherst in eastern Canada, Mr. Mark Gloutney, to give you some scientific comments on the impact of Bill C-15 on waterfowl and shorebirds.
The Deputy Chairman: Since you are from Nova Scotia, Mr. Gloutney, I am sure he can find a relative, or someone who is related to you.
Mr. Mark Gloutney, Manager Provincial Operations, Ducks Unlimited Canada: My wife is from Nova Scotia. I am from Montreal, originally. I was transplanted..
My background is that I manage our operations in Atlantic Canada, and I was instrumental in building a five-year research initiative to look at understanding why there are no Eiders on the coast of Newfoundland.
You have all heard through the course of your hearings about the impact of oil at sea on seabirds. I do not intend going to recover that ground. Instead, I will focus my comments on the near shore environments and what happens as oil gets adjacent to the land. I intend to focus on sea ducks.
People have been interacting with sea ducks for millennia, and in fact in 1750, a Celtic monk hermit actively protected a local population of eiders from extinction. As a result of those activities and some of his other wildlife conservation activities, he was given sainthood and became Saint Cuthbert. Eiders in Europe are called the Cuthbert Duck. I am not implying that your deliberations will have any sort of impact on your likelihood to become saints, but there is precedent there.
The point that I would like to make is that the shipping industry and sea ducks coexist in the environment. That is a fact on both of our coasts, as well as in the Great Lakes. We have shipping traffic up and down the coast of British Columbia as well as on our East Coast, as we heard earlier today.
Sea ducks are an interesting group of ducks. There are 15 species in North America. Several of the species have several races that span the continent. The reason we are concerned about this particular group of birds is that ten of those species are in decline. One of them, the eastern Harlequin Duck, is a federally-listed species of concern. As the name of sea ducks implies, they spend a good portion of their life at sea, six to eleven months.
I had a nice PowerPoint presentation that I intended to show you, but I will create pictures in your mind instead.
The species of particular concern are the Eider ducks, and there are several species of those, and Scoters and Long-tailed ducks. Many of these populations have declined quite precipitously. For example, the East Coast population of Eiders that you find around Newfoundland and Labrador and the north shore of Quebec at the turn of the 19th century probably numbered about 250,000 birds. Current estimates of the population are 22,000 birds. There has been a marked decline in that population from historic levels. We need to do things to eliminate mortality factors that are impacting these birds. One of them is potentially the impact of oil. What makes these birds particularly vulnerable to oil are a number of factors. One is that they are very gregarious birds at many points in their life. They tend to aggregate into big flocks in the wintering grounds, in the areas where they moult and are flightless waiting to replace their feathers, as well as when they are moving between their breeding grounds and their wintering ground. A small amount of oil or a small spill has the potential to influence a large number of birds.
As well, these birds exist in the nearshore environment, and they are often hauling up on to the shore and out to feed on mussel beds or out in the open ocean. As oil comes ashore, it stays against the shore so the opportunity for birds to encounter oil in that environment is much greater than when they are at sea, where oil is passing through the environment. Again, the risk to these birds is great when oil gets in close to these shores.
Why are we so concerned about these birds? They also have a very low reproductive rate. They do not have the capacity to recover very quickly when populations are driven down to lower levels. A good example of that is where Harlequin ducks in Alaska were pretty significantly affected by the Exxon Valdez spill. To this day, we have not rebuilt those populations to their pre-spill levels.
These birds' low reproductive rate means that it takes longer for them to breed than other ducks. They are three-years old before they start breeding. They do not lay very many eggs. They will skip a year in terms of breeding. They are also very phylopatric to their breeding areas as well as their wintering and staging areas. It is difficult, if you reduce a local population, to have new birds colonize those areas.
What is the relevance of sea ducks to Canadians? Working on the East Coast and having Newfoundland and Labrador as part of my territory, I have had the pleasure of travelling along those coasts, and clearly the Eider duck in Newfoundland is the duck of ducks. There is a great deal of cultural recognition and affinity for that particular species. When people wanted to eat, they went down to the shore and they were able to harvest an Eider duck for Sunday dinner. That tradition has changed as we have seen the change in coastal communities, but there is still a great affinity between the people on our coast and this bird. It is really a coastal icon. There is also a significant harvest of the birds that still remains from a recreational perspective. If you have ever been on the coast of Newfoundland in hunting season, the local people are still taking advantage of that opportunity.
As well, there are growing opportunities and technology, and understanding of appropriate conservation techniques, to be able to sustainably harvest down from the nests of these birds. In the St. Lawrence, there is a significant down harvest industry that is sustained on a number of islands.
For our First Nations, these are also species of significant importance. They are part of their subsistence harvest, part of their diet, both the meat and, though of less importance now, the eggs. We see also growing focus in the Eastern Canadian Arctic on the sustainable harvest of down from nesting birds. In fact, information from the Canadian Wildlife Service suggests that over the last number of years down harvest in the Ungava Bay portion of the Eastern Arctic has increased to about 5,000 kilograms last year of down, up from about 1,500 in 2000. This is providing a significant economic opportunity for our local First Nations people in that part of the world.
Some of the arguments you have heard earlier is that there is very little oil in our Arctic environment, and that is a good thing. You have also heard that there is no impact of this legislation on our northern communities. However, those birds travel from those northern communities and winter off the coast of Newfoundland and Labrador. They are, therefore, exposed and there is a direct linkage there. I presume you all heard in the media in late February or early March about the oil spill on the Avalon Peninsula in Newfoundland. Those were birds from the Eastern Arctic. There were about 1,300 birds that were oiled during that spill. Of grave concern was the fact that they were primarily adult birds. When you eliminate or remove adults from that population of ducks or birds, there is a real catastrophic impact on the capacity of that population to re-grow. Thirteen hundred Eiders do not seem like a very big number. Let me provide you with a little bit of perspective. It is about 1 per cent of the birds that were wintering off the coast of Newfoundland, and that represents an impact from one oil event.
There are about 4,000 breeding pairs on the island of Newfoundland. Had this spill occurred along the south shore of the island, the potential would have been an impact on a third of the breeding Eiders in Newfoundland. That is a pretty significant potential impact.
The other species I would like to showcase is our eastern population of Harlequin ducks. It is a federal species of concern. There are about 2,000 of them in existence. This winter, there were 242 of them off Cape St. Mary's in Newfoundland. That is a pretty significant portion of the overall world population of this bird right there in a major shipping lane. Clearly, an unfortunate event could have significant impacts on this population.
To summarize, having oil enter our nearshore environments has significant negative effects on sea ducks.
I would now like to switch focus on effects of oil coming ashore on our coastal ecosystem and coastal wetlands. Coastal wetlands are influenced by tides and include areas into the yield grass flats, and so on. These are important habitats for a number of reasons and have been under siege for the last 400 years. In the Bay of Fundy, we have lost 65 per cent of our coastal wetlands. In some smaller local areas, wetland loss is perhaps 90 per cent. Humans have had significant effects on these coastal wetlands. Compounding that loss with oil coming ashore that disrupts the ecology is a significant concern for us. It is important from a waterfowl perspective because many of them live in these areas. It is also important because these areas provide critical habitats for many migrant and resident shorebirds in Canada.
Oil coming ashore could have significant potential impact on our finfish fisheries because it would affect the habitats of salmon, striped bass and herring, which are important commercial and recreational fish. As well, many of our commercial shellfish fisheries for mussels and scallops require healthy coastal environments to live. Aquaculture is a multibillion dollar industry on both of Canada's coasts. Having oil travel through an aquaculture facility causes grave concern for the industry.
Our coastal communities are increasingly dependent on cultural tourism, ecotourism and tourism in general. Images of oiled beaches, rocks and dead birds along the beach do not promote tourism of any kind in a favourable light and can have a significant downsizing effect on the potential of the industry and of our coastal communities.
Based on the potential for damage by oil on an already depressed sea duck population and the negative effects of oil on coastal habitats, Ducks Unlimited Canada supports Bill C-15 in its current form.
The Deputy Chairman: Thank you, Mr. Gloutney. Next, we will hear from Ms. Venton, from the Sierra Legal Defence Fund.
Mr. Turner: If I may, Madam Deputy Chair, I wanted to remind the committee that we had sent in advance to the Clerk of the Committee a one-and-one-half-page statement with respect to Ducks Unlimited Canada.
The Deputy Chairman: Yes, we have it, Mr. Turner.
Mr. Turner: Thank you, Madam Deputy Chair. I should have mentioned that at the beginning of the meeting.
The Deputy Chairman: Ms. Venton, please proceed.
Ms. Margot Venton, Lawyer, Sierra Legal Defence Fund: Thank you for the opportunity to address the Senate Energy Committee today. My name is Margot Venton and I am a staff lawyer with the Sierra Legal Defence Fund in Vancouver.
I would like to take a moment to say a few words about the Sierra Legal Defence Fund for those of you who may not be familiar with our organization. We are a national, non-profit organization dedicated to strengthening and protecting the laws that protect Canada's environment. We focus primarily on litigation, although we have been involved in the development, interpretation and enforcement of a number of federal pieces of legislation. We have appeared before Senate and Commons committees on environmental issues. As well, we have been involved in a number of test case situations in which the constitutionality and applicability of environmental laws, in particular federal, have been before the courts. In my humble opinion the Sierra Legal Defence Fund is fairly well-versed in many of the issues that have been raised in the context of the Senate's debates to date on Bill C-15. I have had the benefit of reading the testimony given by other witnesses, and I find the questions very interesting. We have prepared a 25-page brief that has been distributed to committee members, I believe.
The Deputy Chairman: Yes.
Ms. Venton: Our brief seeks to answer, as much as possible, and anticipate some of the questions that you might have for us today. Before I summarize the brief, I would like to make a few overarching comments about the bill and its perceived importance for our organization and the people who support it. The Sierra Legal Defence Fund has 20,000 Canadian donors across the country. At various times, it has represented all manner of organizations and individuals, from environmental to government to union and private.
In our opinion, the primary purpose of Bill C-15, which seeks to amend the Migratory Birds Convention Act and the Canadian Environmental Protection Act, is to strengthen Canada's ability to protect migratory birds and to safeguard the marine environment in Canada's exclusive economic zone specifically from the effects of vessel-sourced pollution.
There is currently an environmental problem. I understand that the Senate committee has heard much about this in respect of vessel-sourced pollution in the marine environment. I will not speak to the environmental or scientific aspects of that problem because many are better versed on the subject to give you that information. From a legal perspective, the current problems centre around the issue of enforceability and clarity over the jurisdiction in the exclusive economic zone and the question of the deterrent effect of Canada's laws. Our submissions will focus on those two issues.
It is our opinion that there is uncertainty whether Canada can enforce the Migratory Birds Convention Act in the exclusive economic zone and whether we can enforce CEPA with respect to vessel-sourced pollution. Bill C-15 seeks to address and clarify these two specific issues of jurisdiction and enforceability of federal laws. That would be good for migratory birds and the marine environment.
With respect to the issue of deterrent effect, Canada faces two big challenges right now. The first is the lack of enforcement. We have heard a great deal about the lack of resources for proper enforcement in the exclusive economic zone, or EEZ. We support everyone's submissions that there should be more enforcement of this and all environmental laws in Canada. It is a chronic, systematic problem in our country. However, there is also a problem with the fact that our fines and penalties are out of step with our neighbouring jurisdiction and are too low. These two facts actually combine to exacerbate the problem of enforceability.
Bill C-15 attempts, by raising the penalties, to at least weigh into the calculation by shipowners determining whether to risk possible penalty if caught dumping oil in Canadian waters. By raising the penalties, we might be changing that calculation. As well, by bringing in additional enforcement powers with the Migratory Birds Convention Act, we would be expanding the limited enforcement powers that we have currently in Transport Canada. There would be additional people trained in investigation who have an interest in ensuring that this kind of pollution does not occur. That would be good for migratory birds and also for the marine environment.
It is our submission that Canada has a responsibility as a developed nation to ensure that vessels flying its flags are world leaders in reducing and eliminating pollution. As stewards of the largest continuous coastline of any country in the world, we must do everything in our power to protect the marine environment and ensure responsible oceans governance. Responsibility in oceans governance has been a hallmark of Canada's international position on vessel-sourced pollution, and we must continue to lead the global community in raising standards to ensure that vessel-sourced pollution is reduced to the greatest extent possible. We do that for the good of our nation and the good of the planet and for future generations.
I would like to turn to our brief, which is divided into two main parts. The first part addresses Bill C-15's effect on fundamental rights and freedoms. Our position on that point is set out in paragraphs 3 through 14, with answers to specific questions that have been put on the table in previous submissions in paragraph 14.
Part III of our submissions focus on Bill C-15's effect on Canada's commitments under international law. Those submissions are in paragraphs 15 through 58, with specific concerns addressed in paragraph 59.
We have summarized because this is a lengthy submission that became longer as we tried to answer more specific questions that had been put on the table. I will turn to both the summary sections now, starting on paragraph 3 of the first page, under the heading to Bill C-15's effect on fundamental rights and freedoms.
Bill C-15 does not, in our view, violate the Canadian Charter of Rights and Freedoms or other declarations of fundamental rights. Governments throughout the Commonwealth use strict liability offences to regulate pollution. This is, in part, because of the great difficulty of proving that a person or a corporation intentionally caused pollution — had the wilful intent, or mens rea, which has been discussed to date.
The Supreme Court of Canada has upheld the constitutionality of strict liability offences under the Charter, finding that any violation of the right to be presumed innocent, or of other fundamental rights, is justified by the important societal interest in the effective prosecution of public welfare legislation. Bill C-15's objective to reduce the harm to migratory birds and to the environment clearly protects important public and societal interests.
On the question of the bill's effect on Canada's commitments under international law, our summary begins on page 8 of the brief, starting at paragraph 15. Canada's obligations under international law extend beyond maritime conventions such as MARPOL and UNCLOS, or the Convention on the Law of the Sea, 1982. Since those conventions were negotiated, there has been growing international concern about the continuing and rapid degradation of the marine environment and its biodiversity. Canada has made firm commitments to the international community to address these problems in treaties such as the 1992 Convention on Biological Diversity and other international agreements. The result is that the international law of the sea must now be interpreted in the context of other international environmental obligations. These obligations provide the proper additional context for assessing Bill C-15 and its object of protecting migratory birds and the marine environment.
The provisions of Bill C-15 that apply to Canadian vessels do not conflict with Canada's obligations under international law. Indeed, under international conventions such as MARPOL and UNCLOS, Canada has the primary duty to regulate pollution from Canadian vessels wherever these vessels may be. This regulation must be at least as strong as the MARPOL standards. It is not a cap. Canada has the right and, as a developed nation, the responsibility to exceed those minimum standards in the interests of preventing further harm to the marine environment.
The provisions of Bill C-15 that apply to foreign vessels do not in themselves conflict with international law. There would only be a conflict if these provisions are actually applied in a way that exceeds Canada's jurisdiction and enforcement powers under UNCLOS. International maritime and environmental law is complicated and rapidly evolving. The amendments to the MBCA and CEPA would give considerable discretion to the Attorney General and the Minister of Environment to decide whether and how to taken enforcement action against foreign vessels. This discretion would allow the Crown to exercise its jurisdiction over acts of pollution by foreign ships in a manner that is consistent with evolving standards of international law.
One point about the issue of prosecutorial discretion of the Attorney General is relevant both to the issue of whether these provisions are consistent with international law and also to the concerns that were raised by the first presenters on whether these provisions are fundamentally unfair because they set minimum fine levels for certain categories of offenders. The issue of prosecutorial discretion in Canada is one that comes into play in the administration of almost every regulatory statute that exists in this country. This is not the only statute in Canada that proposes minimum penalties for certain activities. The tradition of prosecutorial discretion in Canadian law is robust and stronger than in many other nations. That is not always a good thing but it is a reality. The fact that Crown prosecutors decide whether prosecution is warranted is something that is taken into consideration when we evaluate the appropriateness of almost any piece of legislation in this country.
The fact is that we have some very strong provisions on the books in Canada that are very rarely used to their fullest strength. We must look at the proposed changes in penalties in the bill as a continuum, not as one static response to any potential event. It is important to look at the minimum offences as the low point in a continuum that actually goes quite significantly further, up to mandatory jail time, which already exists under the Canada Shipping Act. It is actually reduced in this act.
This continuum is where the prosecutorial discretion comes into play; it is where the sentencing discretion comes into play. In Canada, it is where our decisions about what is reasonable are made. Unlike in the United States, where sometimes things are much more proscribed at the outset, we have a tradition of trusting the prosecutors and judges to come up with a reasonable response to an offence. That is an inherent part of our legal system, and was certainly not created for the first time in the Canada Shipping Act.
To conclude, we think it is important to underscore that the last few decades have shown increasing international concern about the rapid deterioration of the marine environment and of marine biodiversity generally. I am sure that everyone is aware of the very recent UN millennium ecosystem asessment, which came out a few months ago now, that indicated "unprecedented evidence of ecological decline in ecosystems throughout the world, including the marine ecosystem." It is the basis of work by hundreds of independent scientists.
To act on these problems in accordance with its international obligations, Canada needs the tools that Bill C-15 provides. It would allow Canada to apply the full strength of its enforcement powers under international law against polluting vessels. It clarifies when and how we can do this. In our submission, that is a good thing for migratory birds in the marine environment; and for that reason, we support the passage of the bill.
The Deputy Chairman: Thank you very much. I will go to questions now. Senator Angus will go first and we can ask questions of the three witnesses.
Senator Angus: Thank you all, that was very interesting. Ms. Venton, I appreciate that a lot of work has gone into this document. I will read it with great interest. Are you a practising lawyer in a firm? Could you give us your background?
Ms. Venton: I am a staff lawyer at the Sierra Legal Defence Fund. Sierra Legal is a non-profit organization, so not technically a firm. I have been practising with them for seven years, and I am responsible for our program on healthy oceans.
Senator Angus: I gather from the reading I have done that you have followed our hearings fairly closely?
Ms. Venton: Yes, we have read what has been publicly made available on the Senate website. To that extent, I am aware of some of the questions that have been put.
Senator Angus: It is helpful to us. Being a lawyer, I am aware of all the lawyers' jokes and opinions and all that stuff. There are a lot of nuanced questions.
The only other legal document I have seen of any real substance so far has been from a Toronto lawyer named Alan D. Gold. We have a substantial document from him. I am not a constitutional lawyer, so I am a little bit at sea on these things. Did you read Mr. Gold's opinion that he filed here?
Ms. Venton: I have not read the actual opinions that the various presenters filed. I have read their testimony and summary presentations.
Senator Angus: I do not believe he came here and testified.
The Deputy Chairman: That document was not made public.
Senator Angus: I received it from the clerk, I guess.
The Clerk: From the Coalition of Maritime Groups.
Senator Angus: Did we not ask them to get a proper legal opinion in order to respond to Senator Milne and all of our interests on this subject?
The Deputy Chairman: It was not made public, so the witness could not have had access to it.
Senator Angus: Then it would not be in order for me to ask you whether you agree or disagree with Mr. Gold's opinion.
Ms. Venton: No, I have not seen it. If you have a general question, I would be happy to try and answer it.
Senator Angus: I understand how complex these issues are. I thought if you had read it, your opinion would be of value because you have gone into so much detail on other elements of our hearings. I read that and I was interested. Actually, about five pages of the opinion was just his CV. I was wondering if perhaps one can just dismiss out of hand his finding. If so, that helps. I will not pursue that further. It would not be fair to you or to us.
Senator Christensen: I have a question for Mr. Gloutney. Perhaps you can shed some light on this area because it is one in which I have some interest. We have had witnesses from the West Coast and a lot of the witnesses from the southern Maritime Coasts who say that they do not see affected birds except once in a while. It is not a common occurrence. Looking at currents, we have been told that the reason this is the case is that these birds are carried out to sea. Is it a problem when you have the currents going offshore like that? If there was an oil spill beyond the 12-mile limit, is there likely to be a lot of birds out there that would be affected by it and then carried away? Or is it actually the dumping out of that oil and then it drifting into shore that creates the major problem? Are we looking at the same degree of environmental degradation there, or is this quite a different thing?
Mr. Gloutney: There are two parts to my answer to that. Oil coming ashore is really the issue, and coming in within a kilometre of the shore is where you are finding the majority of sea ducks. That can arise with local shipping traffic that is passing adjacent through there, like the through the Straits of Belle Isle. That is a major shipping route and it is pretty narrow where they are coming through. That is certainly an issue, and that is how some of that oil is getting ashore. For it to come in from outside the 12-mile limit, my understanding is that it would have to be a pretty substantial slick for it to make it ashore. Considering the natural behaviour of oil slicks, they will disperse, with wave action and time. They are temperature dependent as well. It would have to be a significant oil event for it to make it to shore.
The frequency with which we are getting these oil events happening on shore is much less than we have seen out in the open ocean. My discussions with Environment Canada suggest that on the coast of Newfoundland it is less than 10 spills a year that are actually making it to shore. In many years it is only one or two that are making it to shore.
Senator Christensen: Those that do not make it to shore, how much impact do they have on sea ducks?
Mr. Gloutney: They would impact some of the sea ducks that are living farther offshore, but they would not have much of an impact on sea ducks. They have an impact on things like Longtailed ducks which are quite far offshore. Things like Eiders that I showcased, a slick would have to get close to shore for it to have an impact on those birds.
Senator Christensen: The dumping that goes on in the areas where the offshore current would carry the slicks away, those slicks are probably not having too much of an impact on sea birds, per se.
Mr. Gloutney: On sea ducks. It is a different group of birds. What you heard earlier in testimony was the impact on sea birds, and you heard about numbers like 300,000 sea birds a year impacted by oil. Those are farther out at sea. Sea ducks are a different group of birds altogether.
Senator Christensen: It is all part of the eco-chain. Even though they may not come ashore, we may not find the little corpses, but there is still a major impact beyond the 12-mile limit? I am trying to get some perspective here.
Mr. Gloutney: The impact will be much greater when the oil is inside the 12-mile limit, because that is where the bulk of those sea ducks live.
Senator Christensen: Bill C-15 is dealing more specifically with the area outside of the 12-mile limit, then. Thank you.
Senator Milne: Ms. Venton, I heard you say that MARPOL does not impose a cap. That has always been my understanding, in spite of some of the evidence we have heard. Does UNCLOS impose a cap? You say that the protection of the marine environment is a primary goal of both MARPOL and UNCLOS. The other international environmental agreements referenced above require Canada to use the full extent of its UNCLOS jurisdiction to prevent marine pollution. That is on page 17, paragraph 41, of your brief.
Ms. Venton: First of all, it is important to understand that the overarching goals of the marine protection provision of UNCLOS, and of MARPOL generally, is the eventual elimination of intentional marine pollution from vessel sources, and the greatest possible reduction of all other — we will classify them as "unintentional" releases of pollution into the marine environment. The purpose of these international agreements is to eliminate, over time, the contamination of the environment from vessel sources and, in the context of UNCLOS, non-vessel sources. The marine provisions are broader and are not limited to ships. We have to interpret, and that is always what we are doing in the context of international law because international law statements are very general. They are intended to be interpreted by the countries that sign on to them in a context which makes sense for the countries individually.
MARPOL is somewhat unusual in the degree of specificity which is set out in the agreement. It is quite complicated. MARPOL sets specific limits for certain substances, and they are revisited periodically. UNCLOS, by contrast, does not go into that level of detail. They are general statements about the laws of the sea in a broad sense, which are to be interpreted in a domestic context. UNCLOS wants thing to be consistent with international law principles, but they do not set limits on how far countries can go domestically. The only context in which UNCLOS sets any kind of limit is in reaffirming the distinction between how states deal with their own vessels and with foreign vessels. This is part of the evolution of international maritime law.
It was interesting to hear a presentation by people who work within a designated port. At one time there was only international law, and no distinction was made for ports or flag states. Over time, this has evolved and now we see a larger role being played by ports and by coastal states, not only by flag states.
UNCLOS seeks a balance between the need to protect the marine environment and the need to recognize that, traditionally, laws are supposed to be uniform. To that extent, it merely states that we have to act consistently with other international agreements such as MARPOL. If there is no cap set in MARPOL, then there is no cap set in UNCLOS. That was a long answer to your question.
Senator Milne: Do you think that Bill C-15 is in contravention of these international agreements?
Ms. Venton: No, not as it is written. We do make it clear in our brief, which has two parts that focus on how Bill C-15 would be implemented with respect to Canadian vessels and foreign vessels. There has been some concern, I understand, expressed by the shipping industry on the distinction between how we treat Canadian and foreign vessels. This distinction is the reality wherever you go in the world. Canada, under UNCLOS, has an obligation to regulate its vessels wherever they go in the world to a Canadian standard consistent with international laws, which may be different from other countries' commitments.
There is a difference between the supposed unfairness between how state vessels are treated versus how foreign vessels are treated. For the last 20 years it has been that way. We have to treat foreign vessels in our EEZ under the international rules slightly differently. That is why the bill is drafted in this way — so that it does not conflict with international law. It is possible for us to envision the bill implemented in a way that might conflict with international law. However, it is premature to assume that it would be implemented in that way. International law is constantly evolving in this area and has evolved much quicker than in other international areas. The international standard will be a moving target in the coming years. Therefore, how Canada responds through the prosecutorial discretion of the Attorney General and enforcement officials will change as our understanding of international law changes.
Senator Milne: As it stands, the bill is not in contravention of any of our international agreements and yet will give us the flexibility to respond to changing conditions in the future?
Ms. Venton: In our opinion, that is the case, yes.
Senator Milne: You cited R. v. Sault Ste. Marie and R. v. Wholesale Travel Group Inc.. Some suggest that only the most minor of strict liability offences with the most minor of penalties will withstand a Charter scrutiny. Would you comment on that, please?
Ms. Venton: With the greatest of respect to whoever has made that assertion, I think that is wrong. The continuum of offences and the headings of all of these offences make the debate more complicated, which is why people become confused. Strict liability offences have existed for hundreds of years, in some instances. They are regulatory offences, which we did not create in Canada, that already existed in the Shipping Act. There is the idea that you can create a reverse onus in the context of regulatory offence, which was discussed by the Supreme Court of Canada. There was no discussion on the need for the offence to be minimal.
The ambiguity appears in the context of Wholesale Travel. Many provisions were looked at to determine whether you could advertise in a certain way. One of those provisions spoke to the implication. There was actually prison time involved in Wholesale Travel and I believe in R. v. Sault St. Marie as well. That was no small penalty. In fact, the court's discussion did not engage itself in the question of how big the penalty was except in the narrow case of where something was deemed absolute liability.
The distinction that the Supreme Court of Canada made in Wholesale Travel about whether a penalty or the stigma were small or trifling was not about being a strict liability offence or a classically criminal, mens rea offence. Rather, it was about whether there was a defence of due diligence. The court said that it was concerned about penalty in looking at absolute liability offences. Speeding is the perfect example of the absolute liability offence because it does not matter why the speeding occurred. It does not matter that a person might have taken pains not to speed. The fact of the matter is that the person drove too fast, and speeding is an absolute liability offence. There is no question of due diligence in such a case. In that area, the court considers the matter of the penalty and the implication of the social stigma.
In the world of strict liability offences, for years and years we have had penal sanction that include jail time. They have them in Britain and in the United States. In the complex rule of regulatory law, there are large penalties for offences. Under the Canadian Environmental Protection Act, for example, one can go to jail for violating its provisions on land. The changes to the CEPA will clearly expand to apply to vessel source pollution. Someone who violates the provisions of CEPA at sea is automatically liable unless they can prove due diligence. The CEPA has been before the Supreme Court of Canada on a number of occasions. Its constitutionality in myriad contexts has been upheld.
The ambiguity is whether this is an absolute liability offence. Are we in some way taking away people's ability to offer an explanation of any responsibility? We are saying that the offender need not have intended to do the act but needs to have been responsible, in a negligent sense. The person must have had control over the actions and made the choice: For example, in the context of a work-related injury where the people running the company made the choice not to replace any of the safety equipment in a given year. That choice might open the owner to responsibility for something, as well as the watchman who chose not to be on deck at that particular time. That choice imparts a kind of responsibility. He or she may not have intended to cause physical harm to birds or to the environment but there is some culpability for their actions through the negligence component. That is strict liability. It is importing the concept of negligence law into regulatory offences. It is pervasive throughout Canadian law, such as food and health, medical regulations, et cetera.
For very practical reasons which the courts discussed in Wholesale Travel and R. v. Sault St. Marie, there is no way to know if a person acted responsibly to a mens rea offence. It is simply not possible to be certain. That person holds all the keys and all the information to whether they acted responsibly. The system would not work if we changed the standard. If we defeat the concepts of strict liability in this context, it would have broad ranging implications for the way in which we consider regulatory offences in all manner of cases in Canada. It is not about the Shipping Act only. That could be a huge problem.
Senator Spivak: I will try to be brief. Thank you for your very clear presentation, because many issues have been raised that are confusing to people who are not versed in the law. Of course, we have two very capable lawyers here.
Let me ask you this question: Strict liability occurs, as it says here on page 5, where an offence is shown to be regulatory and not criminal in nature. That is strict liability. However, the argument presented here, especially if it involves jail terms, is that it criminalizes people. The second argument is what if it is just an accident and they are still held criminally liable?
Could you address those distinctions so that we can lay this matter to rest? We have gone over it and over it.
Ms. Venton: Yes. With respect to the first question of the criminalization of an activity by the absence or presence of jail time, one thing the Supreme Court of Canada acknowledges in its discussions both in R. v. Sault Ste. Marie and in Wholesale Travel and other cases is that the labels we use for certain kinds of offences confuses this debate. Is it truly criminal? Is it not? Is it quasi-criminal? That is very confusing.
One of the words they use, or a more traditional way of describing these kinds of offences, is the idea of licensing. When you voluntarily enter a field such as commercial shipping, or when you go out and ask for a driver's licence, you are entering into a field in which you are licensed, or permitted by society through the government, to do something that may have implications for people in the general public. Your activities are regulated in a way that they might not be if you had not voluntarily entered that field.
For example, under the Fisheries Act, prosecutions are called regulatory offences sometimes, and sometimes they are called criminal offences. However, in each case, you still go to the criminal court. If you are charged in Canada under section 36 of the Fisheries Act, which is the deposit of deleterious substances into fish-bearing waters, you go through the criminal court system, just as if you shot someone, but the nature of your offence is considered to be this regulatory-type offence, even though you personally acted and did something that had harmful consequences for fish and fish habitat. There is no mens rea involved in a Fisheries Act prosecution. It is a question of did you do something and can you prove due diligence?
The absence or presence of certain kinds of penalties is not necessarily what defines whether or not something is criminal. It is the activity in which you are engaged, and you must consider what is reasonable. This is what the court looked at in Wholesale Travel. You have to consider what is reasonable and appropriate in the context of the activity.
The Charter of Rights and Freedoms does not exist in a vacuum. It is always interpreted in the context of what is going on, especially in Canada where, unlike the United States, we have a balancing against individual rights and societal good through section 1 of the Charter.
It is the area in which you are working, and in the context of commercial shipping and in the context of accidents, you are clearly in the world of regulatory activity. It is not ambiguous. Does that answer your question about the change?
Senator Spivak: Just one more thing, though. I understand what you are saying, and it is very clear; but when a person under strict liability goes to jail, does that mean they have a criminal record?
Ms. Venton: Yes, but they always have had. This has been the law in Canada for many years. The shipping act has strict liability offences, and people go to jail.
Senator Spivak: So that is the underlying fundamental objection here?
Senator Buchanan: No, no.
Senator Spivak: Yes, it is. You have said it many times in terms of criminalizing people. What about accidents?
Ms. Venton: The point on accidents is that we need to look at the question of what is an accident. There is a whole world of accidents, right? Accident, in a broad sense of the definition, is anything you actually did not intend to do. I understand, from the shipping industry perspective, that they want to distinguish between accidents and intentional harm. We agree that intentionally polluting and harming the environment is a very bad thing which should hold and carry stiffer penalties than negligence or pure accident should. This bill contemplates and allows for that through the sentencing provisions, as almost any regulatory provision in Canada does.
However, in the world of accident, there are accidents, or kinds of accidents, that society, through the government and regulations, says you should have foreseen — for example, the Exxon Valdez. When you get drunk and drive a big boat, that is an accident. You did not intend to run it aground and let oil spill all over the coast. It is not your intention. You are not mens rea criminally responsible; but my goodness, you are negligent. When the company that owned that boat chose not to use the kind of boat that was the safest available for the transport of that substance when they probably should have, when that was the industry standard, the company also bears some culpability for that accident. The accident was foreseeable. There is a distinction among accidents, which this law reflects and embodies through due diligence. That is where due diligence comes in.
If there is a system on board your vessel to anticipate and deal with accidental oil spills, and it is a system that is to industry standard, that operates as it is supposed to, where checks and balances are in place and are routinely checked and carried out, you are not responsible under Bill C-15 for accidental discharge. That is your due diligence. You are fine.
Senator Spivak: That is very clear, thank you. I understand that. That principle goes through all of our laws — in a car accident, in a murder, in a death — so I understand what you are saying.
Senator Buchanan: I just have a supplementary. If what you are saying is correct, then I have no concern with this. What you are saying is that if a master or an engineer is charged in the case of an accidental spill that he had no intention of allowing to happen, and he has used due diligence, he will be acquitted of the charge; it is not a criminal offence?
Ms. Venton: That is correct.
Senator Buchanan: It is not a criminal offence?
Ms. Venton: It is not, because he is not convicted of anything.
Senator Buchanan: But he is charged with a criminal offence in the first instance.
Ms. Venton: But he would have been charged with a criminal offence in any event.
Senator Buchanan: No, he would not. With this bill, he would be; without this bill, he would not be charged with a criminal offence.
Ms. Venton: You have to understand that the accidental part of it could play into it — you can be charged for something and you go to court and they cannot prove that you did it. You are still charged with a criminal offence. If I am accused of robbing a bank and I did not do it, I am still charged with a criminal offence. However, if I am not convicted of a criminal offence, then I have no criminal record.
Senator Buchanan: What you are saying is that any charge laid here would be a with respect to a regulatory offence? It would be the same as a person getting a speeding ticket?
Ms. Venton: No.
Senator Buchanan: That is what you said.
Ms. Venton: Senator, just to be clear, I drew a distinction between the speeding ticket and this kind of regulatory offence. There is a continuum of regulatory offences. Speeding is an absolute liability offence. It is the harshest in the legal continuum kind of offence. There is no defence to speeding. You did it. There is a very different —
Senator Buchanan: Well, I have defended people charged with speeding and got them off.
Ms. Venton: People do get off; but if you looked at it strictly from a legal perspective, what you are getting them off for is the prosecutor's inability to prove they did it.
Senator Buchanan: That is right.
Ms. Venton: Not the inability to prove that they did the act. It was not their intention, right?
In every single instance here, the prosecution will have to prove the fact of the offence. They will have to prove that ship A caused that spill B. That is throughout the law.
Senator Buchanan: I am talking about the concern that we were told about by the masters and engineers and the unions representing them, that the captain and/or the engineer or both would be charged even if they did not know that there had been a spill.
Ms. Venton: They are charged because there is, in fact, an offence. Theoretically, there is a violation of the standard. They are charged because of a violation of the standard. As would be the case if they were on land, and were running a plant of some kind and the plant discharged a substance that was a violation of the Canadian Environmental Protection Act, like DOW Chemical, if there was stuff being emmitted from their pipe that was in excess of the standards permitted in Canada. The people running that plant would be charged with an offence. What would happen is they would then go to court, and the question would be: What is your defence? If the Crown could prove that, in fact, the offence had occurred. At that point they would say, "This is what we did to avoid this happening. This is our due diligence." Then perhaps when the Crown looked at their response, they might drop the charges altogether because they would know they could not make the case, which happens all the time.
Senator Buchanan: Not all the time; some of the time.
Ms. Venton: It happens, right? I mean, the Crown has the discretion, and frequently uses it, not to proceed with offences in far more instances than I think they should, but they do frequently drop the charges in environmental matters. Then the court has to decide whether the defendant has satisfied the requirements for due diligence. If the masters and operators of the ship put forward how they deal with these issues and they say, "Look, this is what happened" and the court deems that to be a reasonable standard, then they get off. This is the way that businesses are regulated everywhere on land in Canada, and has been for years.
Senator Buchanan: Can I ask you a question? Have you read the opinion of Alan Gold? Have you read the opinions given to this committee —
Senator Milne: That has been asked and answered.
Ms. Venton: They are not publicly available.
The Deputy Chairman: I have to intervene. The document sent by Alan Gold was not a public document.
Senator Buchanan: It is an opinion.
The Deputy Chairman: The witnesses have not had access to that document.
Senator Buchanan: Have you read the opinions given to us by legal counsel for the shipping federation and for the masters and engineers and the others?
Ms. Venton: I have read some of their summary statements, and I have seen their presentation.
Senator Buchanan: They clash with your opinions.
Ms. Venton: That is true. Legal opinions clash all the time. With respect, I think what they are suggesting is really out of step with regulatory law in Canada. If you look at the responding opinions from the government lawyers who have made submissions on the bill, they explain that.
I understand that there are always concerns when we bring in new legislation to ensure that we are not going further than is reasonable in the context to address the problem, but I do think that this issue has taken on a character of setting a new standard, which exceeds what is really going on here. This is not a radical departure from how we regulate environmental regulations on land. It is just not.
Senator Buchanan: Just one more question. Is your opinion that this bill in no way violates MARPOL or the other international agreements Canada has?
Ms. Venton: Yes, and I just draw your attention, senator, to the submission that we have included in pages 8 through 24. We try as much as possible to go through some of the specific objections that have been raised and explain why we feel that, as it is drafted right now, this bill does not appear to conflict; that there is a possibility in the future of conflict depending on its implementation, but it is impossible to foresee how that may or may not happen.
Senator Buchanan: I suggest maybe you read some of the submissions given to us by some very competent international legal counsel.
The Deputy Chairman: We must conclude this meeting because the room is needed for another committee. I will end by saying thank you to Ms. Venton for coming. Mr. Turner and Mr. Gloutney, thank you very much. We really appreciate the time you have taken.
The committee adjourned.