Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources

Issue 13 - Evidence - May 12, 2005


OTTAWA, Thursday, May 12, 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 8:02 a.m. to give consideration to the bill.

Senator Tommy Banks (Chairman) in the chair.

[English]

The Chairman: Good morning, the meeting is called to order.

We have before us this morning the Minister of the Environment for consideration and questions with respect to Bill C-15. Accompanying the minister is Mr. Wendt, the chief of the Migratory Birds Convention; Ms. Waters, legal counsel; Mr. Hazra, the chief of prevention and recovery; and Ms. Dawson, the Associate Deputy Minister of Justice.

Also joining us at the table are Mr. Byron Wilfert, M.P., and other officials of the minister.

The purpose of the meeting is to ask the minister and his people questions having to do with Bill C-15. The minister has a cabinet meeting beginning at 9:00. I will be asking you to keep your questions concise so we can cover as much territory as possible. I will be asking us to allow the minister to leave at five minutes to nine.

I am assuming, minister, that you would like to say something to us first, so you have the floor.

[Translation]

Mr. Stéphane Dion, Minister of the Environment: Honourable senators, I am pleased to be here today to speak about Bill C-15, an Act to amend the Migratory Birds Convention Act, 1994 and the Canadian Environmental Protection Act. I shall be pleased to answer all the questions you will want to ask me afterwards.

[English]

I was encouraged to hear your supportive comments during the debate at second reading. It was clear to me that the goal of the bill, namely, to improve our ability to enforce these important environmental laws effectively is supported by the honourable senators. I would like to thank Senator Hubley for introducing the bill to the Senate. Many senators have worked hard on this bill and I thank them as well. The problem, as you know, is a striking one. Several among you have spoken eloquently to describe the seriousness of the problem, that hundreds of thousands of seabirds are killed every year in Canada's marine environment as a result of illegal discharges of bilge oil by ships passing through our waters. Oiled bird carcasses have been found on Canada's beaches for many years, but until recently, we were unable to understand how the numbers observed related to the actual quantity of birds killed. Not every dead bird ends up on the beach to be counted. Our current estimate of 300,000 birds killed off the coast of Newfoundland was based on scientific research published in respected, peer-reviewed scientific journals. Research is under way to describe the extent of the problem on Canada's West Coast. It is not an east-west issue. It exists in the West as well. Estimates are not yet available. It is already clear that the patterns of winds and currents bring few birds to our Pacific shores, and that is why the model developed for the East Coast cannot be applied directly. The model must be modified for the specific conditions that occur in the Pacific.

Given that the estimate of 300,000 birds represents a minimum for the East Coast, Newfoundland, it is likely that the numbers killed in Canada's waters are higher. It appears that all stakeholders agree that these wasteful deaths are unacceptable. It is a shame.

Now, for the cause: Why do some ships continue to disobey the rules? As the Americans said, it is money, and you know the next word after money. It is ``economic.'' In 2003, the Maritime Transport Committee of the OECD produced a report that documents substantial savings for ships that ignore the oil pollution requirements. The report estimates, in U.S. currency, a range of $50,000 to $400,000 annually for ships without functioning oil treatment equipment to have their waste treated at shore. In the case of older ships, environmental compliance can be even more expensive. Those operating in a discounted charter market can have costs of environmental compliance in the range of 11 to 15 per cent of revenue.

Although most ships operate cleanly and the outrageous behaviours are those of only a minority, costs explain why these minorities do not apply the law. The OECD report estimates that, worldwide, the annual illegal discharge of oil into oceans by ships carrying out routine operations amounts to over eight times the Exxon Valdez spill. Data that we have presented to the International Maritime Organization show that one of the worst places for this problem is the Atlantic coast of Canada, and this cannot continue.

Honourable senators, part of the problem is with ships that are not bound for Canadian ports but are in transit to or from the United States. The United States is an important ally in the effort to save the world's birds from oil pollution and part of MARPOL, the International Convention for the Prevention of Pollution from Ships. They are cooperating with Canada on enforcement. When it comes to fines, they have been successful in many high-profile cases with penalties in the millions of dollars; but then in some ways, it creates an additional problem for us. As some know that the fines are much higher in the United States, they try to dump in Canada.

The strict approach of the United States becomes a problem for Canada when our fines lag behind. The Canadian fines have been much lower. It is our responsibility to ensure that the strictness of the United States' enforcement does not lead unscrupulous ship operators to dump their oil while passing through the Canadian exclusive economic zone.

[Translation]

Now that we have talked about the cause of the problem, let us talk about the solution. We must increase the probability that polluters will be caught and prosecuted successfully.

As many honourable senators have said, it is of little interest to vote laws that cannot be enforced. If there is no enforcement, those who violate the law are getting an unfair economic advantage and they are tarnishing the reputation of an honest industry. Yet, this is the present situation. Even if the MBCA, 1994 and CEPA already apply to oil spills in our exclusive economic zone, they still do not give us the enforcement tools required to prosecute polluters successfully.

[English]

The solution should be stronger enforcement. It is what the law will do.

[Translation]

Here is what Bill C-15 is about: the power to enforce our laws in our exclusive economic zone; the right to hold vessels, their owners and their operators responsible for the implementation of the legislation; a due diligence responsibility for every person in control of the vessel; the power to direct and detain vessels found to be in contravention; minimum fines for vessels over 5 000 tonnes under the Migratory Birds Convention Act, 1994 and the allocation of these fines to the Environmental Damages Fund.

Honourable senators, the passage of Bill C-15 will guarantee that our enforcement actions will have a strong legal basis and will give us efficient tools whether these take the form of directions given by enforcement officers or prosecution of offenders in Canadian courts. The passage of Bill C-15 will be an important and necessary improvement of the present situation.

Some issues have been raised before your committee. My Department has prepared a response to the issues that have been referred to us and to me as Minister of the Environment. It concerns a series of letters comprising at least 25 single-spaced pages and I am sure that these questions have now been answered to your satisfaction. I would like to deal with three recurring themes, specifying: this Bill's conformity with the Canadian Charter of Rights and Freedoms, its conformity with international conventions and the allocation by the government of the resources required for its implementation.

Bill C-15 establishes a duty of reasonable care. For example, it states that every master, chief engineer, owner and operator of a vessel must take reasonable care to ensure compliance.

As is usual in this kind of legislation, Bill C-15 establishes strict liability prohibitions. We have been told by some that this approach is contrary to the Charter's guarantee of the presumption of innocence. This is not the case.

There is nothing untoward in this bill. As proposed legislation drafted by the Department of Justice, Bill C-15 has been carefully crafted to allow prosecutions in conformance with the protection of integral rights guaranteed under the Charter. The result is that Bill C-15 creates a duty of reasonable care, but it also provides for the defence of due diligence. In this way, negligence will not be ignored, while the rights of individuals are respected.

The real issue in this bill is the current law of the land and whether or not Bill C-15 conforms to it. Officials from the Department of Justice and the Minister of Justice himself have confirmed that it does.

Honourable senators, consider how many other laws would have to be changed if we accepted these arguments against using strict liability legislation. Certainly the Fisheries Act, the Endangered Species Act and so on would have to be changed.

We would tie our hands with very weak laws if we were to take a misleading interpretation of the law and the Charter of Rights.

[Translation]

Concerning international conventions, Bill C-15 has been written to ensure its conformity with Canada's international obligations under treaties on marine transportation and marine pollution.

However, the honourable senators have heard a number of concerns. It is particularly feared that Canadian agencies might go against our international commitments, that Canada might send at sea enforcement officers with no training and also that Canadian courts might make a ruling without taking international law into account.

Those fears are not justified. Canada respects its commitments and will continue to do so. Bill C-15 includes a sufficient number of mechanisms to guarantee the respect of our international commitments in any enforcement action against foreign vessels. Bill C-15 requires the authorization of the Attorney General of Canada for certain actions against a foreign vessel.

International law does not force us to limit the effects of Bill C-15 — and it would be shameful if it did — or prevent us from punishing reckless behaviours, or to abolish enforcement powers of Environment Canada officers against polluting vessels.

Honourable senators, as you may know, the European Union is preparing legislation that will have about the same effects as Bill C-15. We are going in the same direction according to international law and international morality.

In this context, the Secretary General of the International Chamber of Shipping told you that according to legal counsel in Brussels, there is no conflict between their legislation and the international legal obligations of MARPOL signatories.

The International Chamber of Shipping has raised the same concerns in Europe and in Canada. Honourable senators, we are in good company with the European Union states. Canada is not the only country to think that we need stronger laws and that they can be implemented in conformity with international law.

Oiled birds are rarely seen in Canada's Arctic waters. This is because there is less shipping traffic in Arctic waters than on Canada's east and west coasts.

However, because Canada has asserted jurisdiction over many Arctic waters, claiming them as internal, the existing Migratory Birds Convention Act, 1994, can already be applied. Therefore, Bill C-15 represents little change to the regime already in place in the North.

I will ensure that federal resources will be available to enforce the MBCA and CEPA as amended and approved following passage of Bill C-15. I intend to reallocate a total of $3 million from within the existing Environment Canada budget, which demonstrates I am serious about increasing enforcement efforts towards this important problem.

This total includes contributions to multi-departmental activities to improve our ability to catch those who violate the law. This will include more money for satellite surveillance, laboratories, and hiring and training of additional specialized officers. These officers will not work alone but in cooperation with our sister agency, Transport Canada, so that a strong and consistent regulatory approach is available to the Government of Canada.

[Translation]

The efficient implementation of the legislation requires careful cooperation between several federal organizations. The Minister of Environment will lead the implementation of the MBCA, 1994 and CEPA. The implementation of these laws already implies a high level of cooperation between federal departments and this cooperation will continue.

Environment Canada, Transport Canada and the Canadian Coast Guard are already cooperating to enforce Canada's legislation and arrest polluting ships in conformity with international law.

This interdepartmental cooperation will be reinforced with the passage of Bill C-15 which clarifies our enforcement approach in our exclusive economic zone. A memorandum of understanding will be prepared to that effect in order to clarify the procedure to follow in some specific circumstances.

As a member of the Canadian delegation to the International Maritime Organization, Environment Canada will continue to work with other departments in order to encourage the international community to implement sustainable practices for marine transportation and consider the protection of the environment as a world priority.

To conclude, I wish to underline that the main result of Bill C-15 is the elimination of any ambiguity concerning the operation of MBCA, 1994 and CEPA, and particularly as it concerns their implementation in Canada's EEZ.

Honourable senators, we are only lacking the appropriate tools to ensure the application of our laws. Without those tools, we are remiss in our duty to respect our commitments and responsibilities at the national and international level. I urge you to support Bill C-15 and help us to protect our migratory birds and marine resources for the benefit of future generations.

[English]

I am available to answer your questions. Together we will protect our birds.

The Chairman: Thank you, Minister Dion. Would any of your colleagues like to make remarks before we go to questions?

Ms. Mary Dawson, Associate Deputy Minister, Justice Canada: Thank you for inviting me to answer your questions and to say a few words about Bill C-15, which amends the MBCA and the CEPA.

It is a bill that addresses important issues and ensures that Canada can effectively protect its marine environment, as the minister has just said.

I understand you have heard from a number of other witnesses on this bill over the past few weeks. I gather that two areas of concern in particular have been raised; namely, whether the bill conforms with the Canadian Charter of Rights and Freedoms and whether it conforms with international law, and I propose to deal briefly with both of these issues.

I will turn first to the concerns that have been raised regarding the conformity of Bill C-15 with the international instruments.

Senator Angus: I am sorry to interrupt, but we have a time constraint. We understood that the Minister of the Environment would be speaking first, and we understand that Ms. Dawson is here in lieu of Minister Cotler. It seems to me that we are cutting into the minister's time. We will have a lot of time later to hear from the Department of Justice.

The Chairman: Ms. Dawson, will you be able to stay longer than the minister?

Ms. Dawson: I can stay a little longer. I have a commitment at 9:00, but I will accommodate the committee as necessary.

The Chairman: Does the committee agree that we should ask the minister to respond now?

Hon. Senators: Yes.

The Chairman: Is that agreeable to you, minister?

Mr. Dion: Yes, but it is likely that many questions that honourable senators will ask will be from a legal perspective, and I will pass them on to Madame Dawson, who will likely respond by reading the remarks she was planning to make now.

The Chairman: The object is to get to questions while you are still here, minister.

Mr. Dion: I am at the disposal of the committee.

Senator Hubley: Good morning and thank you very much for coming.

A legal counsel who was asked to give an opinion on behalf of a marine organization said that the reverse onus is unconstitutional. He said that, most importantly, it is clear that the reverse onus for the defence of due diligence is incontrovertibly contrary to section 11(d) of the Charter's guarantee of the presumption of innocence. He said that, to survive, the reverse onus would have to be justified under section 1 of the Charter, and that in his opinion, that justification is not forthcoming. He concluded that the reverse onus is unconstitutional as contrary to the presumption of innocence guaranteed by the Canadian Charter of Rights and Freedoms.

Would you comment on that? It seems to be the crux of what we are dealing with here.

Mr. Dion: I will make a brief comment and, as I expected, the substance will be for Madame Dawson.

If that were true, we would not have the capacity to do a lot of things for the public good. If, when you are given a speeding ticket, you are able to say, ``Prove that I was aware of what I was doing,'' what kind of protection would we have on our streets and roads?

Obviously that is not the view of the court. When an irregularity has been committed, it is the duty of the police to prove the commission, and it is for you to prove that you did not commit it in a reckless way. We have many laws like that. Most environmental laws are of this kind, otherwise we would not be able to protect the environment of Canada.

Ms. Dawson: I can expand on that a little, and I will refer to my notes because this is indeed what I was planning to deal with.

I will say first that I have left with the clerk a note from Minister Cotler that again provides his assurances that the bill conforms with the Charter. I would also like to assure you that every bill that is tabled in Parliament has been examined by the Department of Justice to ensure that its provisions are consistent with the Charter. By definition, any bill that the government tables has had that examination.

There have been, as you say, some concerns raised by witnesses about the offences violating the Charter because they are strict liability offences. Strict liability offences generally require the Crown to prove beyond a reasonable doubt that a person, entity, et cetera, has committed the prohibited act; in this case, deposited a harmful substance into an area frequented by migratory birds or disposed of a substance at sea without permission.

Once this has been proven, the accused is required to establish, on a balance of probabilities, that he or she was duly diligent in trying to avoid the commission of the prohibited act. The due diligence defence may or may not be written into legislation.

Strict liability offences lie between mens rea offences and absolute liability offences. Because of the stigma associated with true crimes, mens rea offences — those generally but not exclusively contained in the Criminal Code — it is required that the courts find a higher degree of moral culpability in order to found a conviction. Under the law you must show that persons intended to commit the prohibited act, that they knowingly committed it, or that they were wilfully blind as to its occurrence.

On the other end of the spectrum, absolute liability offences are those that also require no proof of moral culpability and for which the due diligence defence is not available. They cannot be punished by imprisonment and are generally employed for the prosecution of more routine infractions.

Strict liability offences lie in the middle ground. They are the typical tool used in both federal and provincial legislation in Canada to enforce public welfare regulatory regimes. These include areas such as environmental protection, health and safety standards, food and drug standards and securities regulations. They are ubiquitous in federal and provincial regulatory statutes, both explicitly and implicitly. Where the due diligence defence has not been included in legislation but, where a violation may be punished by imprisonment, the courts have read this defence into legislation. Therefore, even with imprisonment as punishment, you can have a strict liability offence, and we have some case law to that effect. An example would be the offences that currently exist in the Migratory Birds Convention Act, 1994. These offences have been in force since 1948.

I have provided the committee with a list of some federal legislation in force today — and that is only the federal legislation — that explicitly contains a due diligence provision. You will see that it is a number of pages long.

The landmark case relating to strict liability offences is called R. v. Sault Ste. Marie. That was an environmental case involving a pollution provision not unlike the one being dealt with in Bill C-15. The Supreme Court of Canada held that the correct approach in public welfare offences such as the ones contained in Bill C-15 is to relieve the Crown of the burden of proving mens rea because it is virtually impossible in most regulatory cases to prove wrongful intention.

The case was argued prior to the passage of the Canadian Charter of Rights and Freedoms in 1982, but post- Charter we have further jurisprudence. The leading authority on due diligence offences in public welfare or regulatory statutes is the Supreme Court of Canada decision in R. v. Wholesale Travel. This case effectively constitutionalized, under the Charter, the rationale of the Sault Ste. Marie case. The generally accepted interpretation of Wholesale Travel is that regulatory offences punishable by imprisonment may constitutionally rely on a reverse onus due diligence defence as the minimum fault requirement to found conviction.

The court's reasons lay down very general principles in this regard.

It is not a narrow decision and it is not based on the particular facts in an unusual statute.

It is important to note that what was challenged before the court in Wholesale Travel was the strict liability offence of misleading advertising in the Competition Act. That statute governs everyone engaged in business across the country. The statute provided for a potential five-year prison sentence. If Bill C-15 is enacted, by comparison, the maximum prison term will be three years for strict liability offences. I understand it has been argued before this committee that because only three of nine judges in Wholesale Travel actually found the use of strict liability to be justifiable under section 1 of the Charter, while the other two judges in the majority did not even find an infringement of 11(d) — there is a two-stage activity under the Charter and two judges found they did not have to get into a discussion of section 1— presumably the law was unsettled. I find that this position is really quite untenable.

A year after Wholesale Travel, there was another case called R. v. Rube, a unanimous Supreme Court of Canada decision, in a cursory oral judgment from the bench, which read into the Food and Drug Act a due diligence defence in order to assure its Charter compliance.

Finally, in R. v. Hydro Quebec, a 1997 case, the majority of the Supreme Court made reference to Wholesale Travel again and to Rube as the law of the land on the appropriate fault element for regulatory offences. In all three of these cases, the Supreme Court had before it laws that included imprisonment as a penalty.

The court has shown no indication that it is backing away from its conclusions in Wholesale Travel, that strict liability is a Charter-consistent tool for use in public welfare statutes such as the MBCA. It is recognized by most judges that the use of due diligence in regulatory offences likely infringes section 11(d) so as to require justification pursuant to section 1. Any such justification has to meet the stringent test originally laid down by the Supreme Court in Oakes, and this legislation, like the other legislation, has been found to do so, in our opinion.

Senator Spivak: The argument made by the lawyer who came before us, and he is a criminal lawyer, I have to say, was that even though the section 11(d) in the case of Wholesale Travel was saved by section 1, that does not make it constitutional because it is the law of the land. He says that it is unconstitutional, and saving it does not make it so. That was his first argument.

I am just trying to clarify it in my mind. You have raised the cases where you say that this is the precedent.

Second, he says there is no justification. You have to justify the reverse onus, and no justification has been shown.

The third issue, which we heard in another presentation, was that the Migratory Birds Convention Act and the CEPA are not comprehensive bodies of regulations. They are very narrow, so this does not apply. Those are the three major arguments that we have been given. I want you to comment.

You have answered some of it by saying there is justification, a precedent for justification.

Hon. Stéphane Dion: I prefer to not comment. I will leave the cold legal expert to answer.

The Chairman: Ms. Dawson, in the context of answering that question, representation was made to us that the seven-to-two decision of the judges, having to do with the contravention of 11(d), constitutes a precedent in and of itself. Notwithstanding that, others have found that the infringement was saved by section 1. We would like to hear part of that.

Senator Spivak: That is exactly the point.

Ms. Dawson: I find the comments quite unusual. First of all, section 1 is just as much part of the Charter as the rest of the provisions. I do not follow how anybody can say that even though it is okay under section 1, it still contravenes the Charter. That is simply not the case.

On the other argumentations, on the justification, I am not quite sure. You do not get to the justification until you get into court, and then you establish what your justification is. We have actually referred to a number of reasons why the strict liability approach is appropriate in these kinds of cases.

Senator Spivak: It was suggested to us that there is no record of any actual justification of due diligence, reverse onus, in any maritime cases.

Ms. Dawson: That there have not been any cases yet? That is probably because people accept the law; it makes sense. If there are no cases coming up against us, I cannot see why that is a problem.

Senator Spivak: The third issue was that the previous cases were based on a comprehensive body of regulations, and that neither the MBCA nor the CEPA is that. You cannot apply that.

Ms. Dawson: If you take a look at the list we left with you, you will see many statutes that are similar in nature to the one we are dealing with now. That is not a test that we need to worry about. It applies in many specific regulatory statutes.

Senator Milne: Including marine statutes?

The Chairman: All senators have that list. It was distributed this morning.

Senator Christensen: You have read the evidence that we have been hearing and the questions that have been raised, and you have addressed many of them. In looking at the list of legislation that contains provisions around due diligence, one of the arguments that we heard was that we were mixing oranges and apples here. We were dealing with environmental law and the law of the sea. There is a big difference. You cannot get into that. Look at the list we already have. We have the Canada Shipping Act, the Canada Transport Act. There are at least five of them here that would certainly be comparable to what we are trying to do, including the Fisheries Act, the International Boundary Waters Treaty Act, the Marine Transportation Security Act. Those are not specifically environmental, so we already have this provision. We are not mixing apples and oranges, as I see it.

Do you want to comment on that? I have another clarification.

Ms. Dawson: I do not know what else I can add. I find it strange to hear these arguments because it is the practice in this kind of legislation to have a strict liability clause.

Senator Christensen: Do we have other case law? Sault Ste. Marie and Wholesale Travel are the two pieces of jurisprudence that are brought forward continuously. Do we have case law on the other acts whereby they have been tested?

Ms. Dawson: I do not believe there is much case law on this issue because it is accepted.

Senator Christensen: I thought there were three post-Charter cases?

Ms. Dawson: There is R v. Rube, which I mentioned. There is Wholesale Travel. I have some Charter experts behind me; they may have a few more names. There is not much else. It has been fairly well accepted.

Senator Christensen: The other argument we have been hearing, one of the reasons that we get more dumps in our waters than they do in the U.S., is the U.S. has stricter laws and in Canada we have less enforcement and smaller fines.

The U.S. is not a signatory to UNCLOS. That is why they can do it. We are a signatory to it; therefore, we cannot.

Ms. Dawson: I cannot comment further. Behind me is Jason Reiskind, who is an expert in international law. He could perhaps add something. However, I think you have stated it correctly.

Senator Christensen: Why can we not increase our penalties?

Ms. Dawson: I will hand it over to Mr. Reiskind.

Senator Christensen: The argument is that we would be infringing on international agreements.

Mr. Jason Reiskind, Counsel, International Law Section, Justice Canada: The U.S. takes the position that many, if not most, aspects of the Law of the Sea have become customary law and, therefore, they do their best to meet just about all the provisions. That is not a key distinction. It is simply that their courts have managed to impose higher fines.

The Europeans are planning directives to ensure the availability of a consistently high fine throughout Europe. Just about all of Europe is a party to the Law of the Sea as well.

Senator Christensen: To try to simplify my question, the implication was that because we are signatories, we cannot meet the same standards the U.S. has set. We are prevented because of the agreements we have.

Mr. Reiskind: No, I do not believe that is the case. As the minister mentioned, this effort is to increase the fines and tighten the penalties. I do not believe that that is a reason there may have been differences in the past between Canada and the U.S.

Mr. Dion: It would be a shame if it were the case that, when you decide to work with other countries, you cannot protect your birds. I hope no senator is suggesting that. It has been written in UNCLOS that there may be more than one penalty for wilful and serious acts of pollution in the territorial seas. Now it will be known that in Canada, if you touch our birds, it will be considered a serious act of pollution. It will be for you to justify your act. Once it is proven you have done it, it is up to you to justify why you have done it. It is the way every environmental law that I know of works. Otherwise, we cannot protect our environment. It would be morally shameful. If you pollute, you must justify why.

Senator Christensen: I am just trying to get clarification from the environmental people. We are fine within our 12- mile limit, but once we get into the EEZ sector we run into a problem because we have an imprisonment requirement as part of our penalties that would apply to international ships.

As I see it, the minister and/or the Attorney General must become involved at that point. That would be, I will not say protection, but a way to deal with that.

Ms. Dawson: I believe that is the case, but Mr. Reiskind might elaborate further.

Mr. Reiskind: Yes, that is correct. The provisions in the bill that require the consent of the Attorney General before an arrest or a redirection of a foreign ship is made in the exclusive economic zone are to ensure that we are complying with the Law of the Sea provisions that do not allow for imprisonment for pollution alone.

The Chairman: Just so we are sure we have answered Senator Christensen's question, part of the reservation that we heard — Mr. Reiskind might want to speak on this — is on the section of UNCLOS to which the minister has just referred in which he has described the nature of the offence. That same section of UNCLOS indicates that, unless you reach that kind of proof of culpability, of a serious and wilful breach, you may not impose penalties other than monetary ones. We have ratified UNCLOS. This bill before us reads otherwise. That is the nature of the question.

Mr. Dion: That is why the law gives guidelines on considering the risk of harm, whether the offender was found to have committed the offence intentionally, recklessly, inadvertently or through negligence, whether the offender received any benefit or advantage, and the history of compliance by the alleged offender. The law will not be blinded. It will have to take these facts into account. When the investigation has been done in a rigorous way, there will be grave consequences for the polluter.

[Translation]

Senator Massicotte: My questions will deal with education and information. Why does this bill only apply to birds and not to polluters? Why do we have to prove that migratory birds have been harmed?

Mr. Dion: There are already measures that apply to pollution in general. We also had measures for birds, but not the implementation instruments that this bill will give us.

Senator Massicotte: Clause 13.1 provides for a maximum fine of $1 million. Why this amount when damages could reach $5 millions or $10 millions$

Mr. Dion: I was ready to go higher, but I will leave our expert to explain why we have set that timid penalty.

[English]

Mr. Stephen Wendt, Chief, Migratory Birds Convention, Environment Canada: The maximum fine in the bill is $1 million, but there are provisions for additional fines in certain cases. For example, if the offence continues over more than one day, the fine can be increased with each day of the offence. There is also provision for doubling the fine in the case of a repeat offence. There are additional penalties that may be applied under the bill.

It is important to remember that this bill works in conjunction with other Canadian legislation. It has often happened that charges are laid under the Migratory Birds Convention Act and under the Canada Shipping Act as well. There are other penalties.

[Translation]

Senator Massicotte: It costs $500 million, but except in rare cases, the sanction is $1 million and a three-year prison term.

[English]

Mr. Wendt: The experience in Canada has been that fines have been much less than the already-allowed maximums. However, we have seen cases in the United States where fines in the millions of dollars have been levied.

[Translation]

Senator Massicotte: Section 5.5 of the bill refers to the obligations of directors and officers of a corporation who become responsible for ensuring the implementation of the legislation. It is very difficult nowadays to find directors because of all the environmental risks. At the provincial level I mostly know the situation in Quebec this clause is much stronger and gives more responsibility to the directors. In Quebec, it must be demonstrated that directors contributed to pollution. Here we are asking them to be responsible and to take measures to avoid pollution. It is not an international corporation with its offices in Geneva that will tell its directors to make sure it won't happen. Isn't it too rigorous?

[English]

Mr. Wendt: The bill requires that directors and officers take all reasonable care. The situation now is that there is a well-established set of international rules in place to prevent oil pollution at sea. They include the installation of certain equipment and its maintenance. All this is well understood. It would be saying that the directors and officers of corporations should ensure that that part of normal shipping business is in place and proper training is carried out. It is a reasonable expectation.

[Translation]

Senator Massicotte: But paragraph (1.8) on page 14 does not apply to clause 5.3, I believe.

The director believes that all necessary and reasonable measures have been taken. Section 5.3 says that a director can be held personally accountable even if necessary precautions have been taken. This will give many people a cause to worry. It doesn't seem reasonable to me. Is it your goal?

There is a due diligence defence. However, it is excluded from section 5.3 even if directors have taken all necessary precautions and are not held accountable.

[English]

Ms. Dawson: Perhaps one of my colleagues can answer that question.

Mr. Raymond MacCallum, Counsel, Human Rights Section, Justice Canada: Due diligence defence is exempted from the responsibility to take all reasonable care because it would be illogical, with respect. For the Crown to prove beyond a reasonable doubt that a corporate director failed to take reasonable care and then to provide that person with a defence on a balance of probability to prove that they did take reasonable care does not make sense. That is the only reason it was exempted from the defence.

Senator Massicotte: I want to be certain that I understand this: You say to a company or members of the board that if they take reasonable care to ensure that they comply with the act, then they will not be held personally liable.

Let us say that a board director takes reasonable care to ensure that he complies with the act. It is my understanding that despite reasonable care taken, the board director could still be held personally liable.

Mr. MacCallum: He could not be held personally liable because the Crown has to prove beyond a reasonable doubt that the person did not take reasonable care. If indeed he took all reasonable care, then the Crown would not be able to meet its burden of proof that the person committed an offence. Therefore, there would be no need of the due diligence defence.

Senator Massicotte: That is not how I read this but I will read it again.

Senator Buchanan: Mr. Chairman, quite a few things about this bill bother me. First, I find it interesting that the committee has had before it the following groups: General Counsel for B.C. Ferry Services; Mr. Peter Lahay, National Coordinator for the International Transport Workers Federation, representing the ILA and the officers, captains and engineers; the Chamber of Shipping of British Columbia; the International Shipping Federation; the Canadian Shipping Federation, et cetera. We have heard from independent legal counsel and counsel representing all of the above organizations. Each has indicated clearly to us that the clauses of this bill that we are talking about violate the Charter of Rights. We heard one legal counsel from the Sierra Club contradict that, and now the Department of Justice contradicts that. This gives me cause for concern.

Second, we have had a legal opinion from the International Chamber of Shipping stating clearly that this bill will be challenged under the Law of the Sea because it violates MARPOL and UNCLOS. In their view, the bill makes no distinction in law between deliberate acts and making a pollution incident an offence regardless of the intent on the part of the accused. This is not only contrary to the MARPOL convention but is also disturbing to their seafaring colleagues, the officers and engineers.

It bothers me that what you are telling us today contradicts what they said. You are saying that this bill does not violate MARPOL or UNCLOS. You have told us that captains and engineers would be charged by, I believe, European signatories and that the same clauses apply in those countries. That contradicts what we have been told in previous testimony.

We have been told clearly that the bill contradicts UNCLOS and MARPOL. The witnesses who told us that are responsible legal counsel for the international shipping industry. All four of them indicated clearly to the committee that this is a violation of international treaties that Canada has signed. The interesting thing is they said that it could be cleared up by a simple amendment to remove the criminalization aspect.

However, you have told us today that this bill does not create any criminal offence. Is that what you are saying?

Ms. Dawson: I am saying that it is a regulatory strict liability offence. You can play with the definition of ``criminal offence'' and there is no strict line on that. What I went through is the three ways in which we treat offences: the mens rea regular intention offences; the strict liability, which has a due diligence defence; and the absolute liability, which does not have that defence. There is that range, and without needing to define which one is a criminal offence, those are the ways in which we deal with infractions.

Senator Buchanan: In effect, you are saying that you agree that there is a reverse onus situation here, the presumption of innocence has been taken away and that the burden of proof has shifted. Is that what you are saying?

Ms. Dawson: That is what I said.

Senator Buchanan: You are also saying that there is ample justification for doing this under the Charter of Rights.

Ms. Dawson: Yes. That is what a strict liability offence is.

Senator Buchanan: Tell me, what case is R. v. Rube?

Ms. Dawson: I do not have the details with me, but the Charter experts would be able to go into the details, if you would like.

Senator Buchanan: What case is R. v. Hydro Quebec?

Ms. Dawson: I will have him detail that for you.

Mr. Dion: I do not want to start from scratch a third time and so I will stay. I will say something about each comment to this point, respectfully.

Mr. MacCallum: R. v. Rube involved an offence under the Food and Drugs Act. It was a 1992 case from the Supreme Court of Canada on appeal from the B.C. Court of Appeal. The issue in that case was whether the offence in question, having to do with selling food past the sell-by date, essentially, included a defence of due diligence or not, given the vagueness of the wording in the act.

When it got to the Supreme Court of Canada, there was also the Charter question as to if it did not include a defence of due diligence, because it provided for a potential punishment of imprisonment, whether that made it unconstitutional. In a very cursory judgment a year after deciding Wholesale Travel, the court said of course it includes a defence of due diligence, because otherwise it would be unconstitutional. Essentially, it accepted without any comment or any hint of controversy that Wholesale Travel was the governing case for the minimum level of fault and the use of a reverse onus due diligence in order to comply with the Charter in a regulatory offence that provided for imprisonment.

Hydro Quebec was not a case about a strict liability offence. It was a case about division of powers and whether the federal government had authority to enact comprehensive protections under the Canadian Environmental Protection Act. In the course of deciding that question, they made reference to the federal government's criminal law power, including its ability under that power to enact regulatory offences rather than simply true crimes.

It discussed the types of crimes and offences the government could enact. It referred to strict liability offences, referred to the minimum fault requirement under the Charter, being the due diligence defence as a reverse onus, and referred to Wholesale Travel and to the Rube case — all that to suggest that they are well aware of their holding in Wholesale Travel. They have referred to it subsequently without a hint of needing to back away from it and it is the well-settled law of Canada.

Senator Milne: Mr. Minister, would you agree that pretty well all the witnesses that Senator Buchanan listed for us have a financial interest in making us think that this bill is in contravention of MARPOL and UNCLOS?

Mr. Dion: Each time you want to enact a regulation to protect the environment, you have, in a country of 31 million people, the capacity to find a never-ending number of legal experts ready to be paid to say what they have to say. That will not stop us from protecting our environment because morality is on our side.

I may come with my own list — the Canadian Wildlife Federation, Nature Canada, Forest Products Association of Canada, Sierra Legal Defence Fund, Sierra Club of Canada, World Life Sciences Forum and so forth. I want also to mention the minister of Newfoundland, who wrote to you urging you to pass the bill right away.

Also, senator, the Minister of Natural Resources of Nova Scotia wants that to be done. You have 5,000 miles of coastline there where birds are washed up every year. This needs to be addressed. It is not true that we cannot do it without proving the polluter did it on purpose, it is not true that international laws allow this kind of immorality. I know it is not true — we have legal experts saying that — and it would be a shame if it was true.

Senator Adams: I want to ask why we are only protecting the birds in Bill C-15. In my community in the Arctic, we eat any type of' mammal from the sea and anything can be affected by the pollution. We understand that mammals have been affected by pollution. Any mammals that swim in the water have to breathe — whales and seals and so forth. If anything is spilled, they would be affected. We did not hear anything about other animals' rights from your department. Why would only birds be affected by the oil in the water?

If I eat muktuk — blubber from seals and belugas — the oil would be stuck on the skin of these mammals. We never heard anything from the environment minister from Newfoundland about that. If there is so much pollution, it would affect some of the other mammals in the water; they come up every 10 minutes or so to breathe. If there is so much oil around, they would be affected too.

My second question, I am member of the Fisheries Committee and we are dealing with some of the fish farmers who are hatching fish offshore, up to the 12-mile limit. DFO has no jurisdiction to deal with the effect of fish farming on the wild stocks of salmon in B.C. or down East. They cannot do anything to regulate the fish farmers. If Bill C-15 passes, will you be able change the law on the 12-mile limit?

Mr. Dion: Thank you, senator. I think it is a legitimate concern why we do not do this for all the other animals, including the seals and whales. First, the birds are the most vulnerable ones. We have identified the zone where they are. They are not moving around everywhere, like a beluga will do. It is clearly a federal responsibility and the provinces are pushing us to act.

Other laws exist to address the problems with other animals — the Arctic Waters Pollution Prevention Act, the Fisheries Act, the Canadian Environmental Protection Act and so forth. Let me ask Mr. Wendt to continue.

Mr. Wendt: I think Minister Dion captured well that we have a responsibility to fix our legislation to meet the convention requirements for the protection of birds in Canada. It is a federal responsibility. As the minister said, birds are the most affected by oil on the sea.

At the same time, with the other legislation that is in place for the protection of Arctic areas, we find that the standards in law and the standards that are achieved in Arctic waters for oil pollution protection are very high. That applies to all organisms.

Senator Adams: You say that you are able to regulate offshore activity now. After Bill C-15 comes into effect, will it be within the federal government's jurisdiction or will it be provincial? I ask the question because there do not seem to be any restrictions currently concerning farming in the seas — raising fish or mussels or plants or any kind of organisms. If Bill C-15 passes, will it include restrictions for the people who are using the sea to farm up to the 12-mile limit?

The Chairman: I am sorry to intervene. This bill deals with birds, period.

Senator Adams: I know, but there will be birds in the 12-mile limit as well.

The Chairman: Are they covered by this proposed legislation?

Mr. Wendt: Yes. This bill is amending the Migratory Birds Convention Act and the Canadian Environmental Protection Act, and they already apply within the 12-mile limit; they apply inland as well.

Another point in response to Senator Adams is that when we protect the environments of birds, we protect the environments of all the creatures in the same area. A second and very important part of Bill C-15 is the amendments to the Canadian Environmental Protection Act, 1999, which is not restricted to birds. The purpose of that act is the protection of the environment.

The Chairman: Therefore seals and fish would be protected under the other acts that you named?

Mr. Wendt: The Fisheries Act also has additional protection.

Senator Massicotte: Is the due diligence defence in the environmental act? Where is the burden of proof?

Mr. Wendt: In all the acts we have been discussing, and the Migratory Birds Convention Act now, even without the wording that is being put in, it has been suggested that the courts would read the same provision in, but it certainly applies in the case of the Canadian Environmental Protection Act, the Fisheries Act and other similar legislation.

The Chairman: To make sure that we answered Senator Adams's question, the protection offered for other forms of life in the ocean, and particularly in the Arctic Ocean, are covered in extant legislation, and Bill C-15 does not change that.

Mr. Wendt: Insofar as Bill C-15 improves the regulatory framework for birds, it improves it for everything. What you said is correct as well.

Senator Adams: Over a year ago, we did some work relating to species at risk. My colleague, Senator Watt, said that every time the government makes regulations that affect something like fishing quotas, it is difficult for the people in the community. When the cod collapsed, we found a way to help people, but when we deal with mammals, the people living in the Arctic communities do not get that assistance. The cost of living up there is high, and it is very difficult. I am not talking about animals that are killed by oil spills in the sea. The government has to understand that when it makes regulations, whether they have to do with hunting rights or whatever, they affect the people in the community. In the Arctic, it is expensive to go the store to buy food that you previously could have hunted but can no longer do so because the government has protected the animals.

The Chairman: Thank you, senator. There are a hundred questions in there as well.

Senator Angus: Thank you, minister, for being here, and the same to all the others. The big guns are out.

I want to make it clear, because I have been identified as questioning this bill, that we are all in favour of the principle. No one is against protecting the birds, minister. You, as well as the rest of us, have worked hard on this. We have been sitting here for seven months. I see you have written three letters to the chairman. I know the chairman has apprised us of his meetings with you, and we are all trying to get to the right conclusion.

The reality is that quite a few concerns have been expressed about the bill. I think you know that. When the bill was first introduced in the House, when you first signed off on it, were you aware that there were some potential legal problems with it?

Mr. Dion: I was aware that the way we wanted to do it was in conformity with the law. I expected that some legal experts would say the reverse, as is always the case whenever we want to enforce any environmental regulation.

Senator Angus: I am not sure that is always the case. Frankly, this is the first time I have seen such legitimate discussion.

Mr. Dion: Let me tell you about what we want to do for greenhouse gas emissions. What you have facing you is nothing.

Senator Angus: This is the Committee on Energy and the Environment, so we have a little understanding on those things. You would agree if you checked the record that the committee has been supportive of efforts to protect our environment.

At the time the bill was introduced, and I am not sure I understood your answer, were you aware that there could be some legal issues with it, or were you assured that it was in conformity?

Mr. Dion: Legal ``resistance'' would be a good word.

Senator Angus: Did you get legal opinions at the time that it was in conformity with our international obligations and with the Charter?

Mr. Dion: I would never support a bill without being sure it is in conformity with international law and the Charter.

Senator Angus: Are there any legal opinions that you or your department received, either from your own legal officers or from Justice Canada? There was a discussion the other night about how somebody may have raised the issue of privilege. I am asking a simple question. Are there legal opinions in writing that you or your department received about this bill?

Mr. Dion: You cannot get the support of the cabinet to go ahead with a bill without Justice giving assurance that you are in conformity with the law of the land. That is what happened. I understand the same argument was made in the House, and we provided all the evidence at the other place. We cannot go ahead with a bill without being sure that we are in conformity with the law.

Senator Angus: I am asking if any legal opinions were prepared as to the validity of this bill. If so, I would like to see them, please.

Mr. Dion: I have written 25 pages about all the legal arguments that have been made to the committee. I did it in a timely fashion, because this thing must be done.

Ms. Dawson: This bill has been under consideration for a number of years. Obviously, the client has been in consultation with the Department of Justice throughout. The subject matter has been well discussed. With respect to tabling any of our legal opinions, it is not our practice to do that. The Crown, like any other person, has solicitor-client privilege. If we were to table a legal opinion, we would waive that solicitor-client privilege. It is simply not the practice to table legal advice.

I can tell you that there has been consistent and constant legal advice given on this file. It would not be one particular document but a continuum of advice over the years on this subject matter.

Senator Angus: Verbal?

Ms. Dawson: It could be verbal or in writing, and it could be combined with other policy advice. Over the course of three or four years, there would be a constant stream of advice going back and forth.

Senator Angus: I am referring now to Bill C-15, not previous versions thereof. I understand that there may have been some kind of legal advice but not a particular opinion that assured Mr. Dion's department that this bill would conform to our international obligations and the Charter. Is that correct?

Ms. Dawson: I would say that is not correct. This bill would not have been introduced unless our Charter experts and the legal services people had had a good look at it.

I could not say whether the form in which that advice would be given was incidentally, in different documentation, or whether it was oral. Others could probably say, but whatever the case, it is not our practice to table our legal advice, for the reasons I explained.

Senator Angus: Are you saying there is some legal advice but you are invoking solicitor-client privilege? Are you prepared, minister, to waive the privilege in terms of letting us see these legal opinions?

Mr. Dion: What I am telling the committee is I have said everything I know. I have not received any legal advice from the Department of Justice or our department that is different from what I said in every letter that I sent to Senator Banks. All the evidence available to me I have given to you.

Senator Angus: I will repeat one more time, are you in a position to waive the privilege that is being invoked by counsel?

Mr. Dion: I am not sure I have this power.

Senator Angus: Yes, you do. You are the client.

Mr. Dion: I do not know why you are requesting that. I am telling you that all the evidence I have has been communicated to Senator Banks. I do not doubt we are respecting the Charter and international law. I know we have the moral ground on this file.

Senator Angus: I very much respect you, you are one of the leading people from my province and I am pleased you are doing this public service, but I am asking a simple question.

Mr. Dion: I have answered.

The Chairman: I think we can take it that the question has been asked and answered and we will not get a specific answer as to what legal advice in respect of this bill the client, Environment Canada, has received from Justice. Is that correct?

Senator Angus: That is one question.

Ms. Dawson: I testified this morning earlier, and everything I said was in conformity with the advice the minister has been given all along on this bill. We have told you what our advice is.

Senator Angus: I am not trying to stir up anything. We had quite a prominent lawyer come here and tell us we should ask what legal opinion exists and we should have a look at it. We were told it is common in this government to invoke privilege and we should ask the minister if he would waive that privilege. I have asked the two questions. Certainly in terms of the second one, waiving the privilege, I understand, minister, you are not prepared to give us copies of the legal opinions.

Ms. Dawson: I should point out it is a privilege that belongs to the Crown as a whole. Our client is the Government of Canada, and we have simply always followed the practice as a government of not tabling legal advice.

Mr. Dion: This is the first time I have been asked that. I am here. I am telling you the truth, everything I know. I do not understand your insistence.

Senator Angus: I tried to explain where it came from. We will leave it at that. I understand I have asked you to table any legal opinions you have received on this bill.

Mr. Dion: This is an extraordinary request from you.

Senator Angus: Nonetheless, it has been made in good faith. I have other things to do today, too. I am asking the question. I would like to be clear that your answer is no, you will not table these opinions.

The Chairman: If I understand it, the answer is that governments across the board do not, as a general rule, provide that information.

To clarify one more issue, we have seen specific, written legal opinions, to which Senator Angus referred, that various clients have asked for. They are concise. They give us an answer in 9 or 10 pages and we look at it. There is a nice, neat envelope around it.

Do I understand you to say there is no such 10-page piece of legal advice in respect of this bill, rather it is a body?

Senator Spivak: Under the Conservative government we could never get an opinion.

Senator Angus: You should have pushed harder, as I am.

Mr. Dion: I have answered all the legal arguments that have been made to this committee and written to you, senator, and you were pleased by my answer, happy that I was able to answer quickly. I have given full cooperation to the committee. Now we stand to act.

Senator Angus: Thank you, chairman. Thank you, minister. I will leave that subject, assuming that you are refusing to table the legal opinions. Let the record show that.

You mentioned in your comments that some of the issues that have been raised, for example, minimum fines, were not in the bill originally. Are you glad that it was added to the bill? We heard evidence that minimum fines could cause problems.

Mr. Dion: It is not that it causes problems. Our preference was to give the justice system flexibility on that. The other place decided, on the ground of the big discrepancy with the U.S. practice, that if we do not have a minimum we will not send a strong message. I think it is a legitimate point of view, and it is not weakening the bill. It is a different view and is accepted by a minority government.

Senator Angus: If it was taken out, do you think it would destroy the bill or reduce its effectiveness?

Mr. Dion: I do not see a big problem with including it.

Senator Angus: The term used is ``criminalization of maritime law.'' One big issue in maritime pollution is, let us say, when two ships collide and there is a big spill or another kind of accident, as there was recently at one of the offshore energy developments, I think it was Sable Island or somewhere like that —

Senator Buchanan: Not Sable Island.

Senator Angus: — there is an industry known as maritime salvage. These are people solely in the business of standing by to save lives and prevent pollution at sea. We had evidence that a salvor might be called in if there is a big spill, and under today's law they have various protections and are not under threat. Often, in heavy weather or difficult circumstances at sea, they might not succeed and might even make it worse. The evidence was if they are running a risk of getting thrown in jail and paying huge fines when they are just there to help, it will be a disincentive to go to the scene of accidents. We were told that was one of the problems with the criminal penalties.

We talked about UNCLOS this morning. That was an issue. We were also told about concerns that this bill, as drafted, would capture accidental pollution. In other words, there are many times, unfortunately, because of the nature of the perils of the sea, when there can be an accidental spill, which the officials might find definitely came from XYZ ship. Under this bill, they are in big trouble in terms of high fines and possible imprisonment. This was something that was pointed out to us again as a big disincentive for mariners. Had you considered those points?

Mr. Dion: That is precisely why you have due diligence, the capacity to prove it occurred by accident and all precautions were taken to avoid it. You need to take that into account and then the justice system will take that into account. It is precisely why we have these guidelines.

Senator Angus: I would like to pursue the criminal penalties a little, because the chief engineer and the master are the two ships' officers who could be put in jail, even if they had been asleep when the alleged offence happened. There is a total strict liability according to the lawyers. That is the part that really is a violation of the Charter as the law has evolved. Could you not take out those criminal penalties against those ships' officers and that would fix it?

What is your objection to that?

Ms. Dawson: It seems to me that all those people are responsible on one level to see that there are no oil spills. If the officer is asleep, he should have someone else looking after it. Due diligence is not a silly rule. The courts are not silly about these things.

Senator Angus: It is a reverse onus.

Ms. Dawson: Yes, but surely the ship's officer ought to be putting procedures in place to look after these issues.

Senator Angus: No one has objected to the huge fines that could be imposed. It is quite open-ended. The judge has the ability to assess fines, as you have mentioned, Ms. Dawson.

They object to the potential incrimination of innocent seafarers. We have trouble recruiting seamen these days. Removing two or three words from proposed section 13 would fix the problem completely. You would still have tremendous leverage against the shipowners and you could seize and hold the vessel itself indefinitely if they are guilty. It is the individuals that we are concerned about.

Regardless of what you may think, Mr. Gold was unequivocal. He said that the exposure of these individuals vitiates this bill.

Mr. Dion: We do not want a law with loopholes like that. We want to be sure that it is a well-balanced approach. You have to show that due diligence was conducted, that you took all precautions to ensure that this would not occur. If it occurs by accident, the penalties are not the same.

Senator Angus: There are minimum fines, which is another issue. Several witnesses indicated that there may be a disincentive for the judge to convict, even though there was a spill and a lot of birds were oiled, because the minimum fine is $500,000. That is the problem with minimum fines, as you probably knew at the beginning.

Mr. Dion: The fine applies to the vessel, not to individuals, which is a big difference. I have already said what I think about minimum fines. It was not our first choice, but it is not the end of the world.

Senator Angus: It hurts the bill. We are in favour of the principle of this bill. We simply do not want to approve a bad law.

Ms. Dawson, have you seen the evidence given by Mr. Gold?

Ms. Dawson: I heard a summary of it. I have not read it in detail, but officers who work with me have.

The Honourable Byron Wilfert, P.C., M.P., Parliamentary Secretary to the Minister of Environment: The issue of the minimum fine was introduced by your colleagues in the other place. The government accepted it on the basis that the monies collected would go to cleanup. We did not support a minimum fine.

Senator Angus: I think that was very commendable of you. We try not to be partisan here. When you refer to my colleagues, you are not referring to my Senate colleagues.

Mr. Wilfert: No; I refer to your colleagues in the other place. Being a reasonable individual, I was willing to accept minimum fines, even though I had argued against them, as long as the monies were allocated to specific purposes, which in the end they were. Whether that strengthens the bill or not is debatable. It was not the preference of the government or the minister.

Mr. Dion: If the government thought that this change would have transformed a good law into a bad law, we would not be here today.

Senator Massicotte: However, they have made mistakes before.

Mr. Wilfert: I would debate that later.

Senator Angus: Minister, I do not think we are advancing anything by pursuing this. I know you have an important cabinet meeting and you are already late.

I just want to say that all sides of this committee have worked extraordinarily hard on this bill, and it is complicated material. In fact, your own three letters are very detailed. The chairman has gone the extra mile to meet with you and your officials. This is a collective effort to get it right.

I put it to you that with a very minor amendment we could have a bill that would be on the leading edge in protection of our birds. I urge you to consider the kind of amendment that was suggested by Mr. Gold the other night. It has to do with proposed subsection 13(1.8) and it removes the criminalization of ships' officers.

Mr. Dion: Thank you, senator. I respectfully disagree. It is not a minor amendment. It would weaken the bill and I cannot support that. We want strong protection for our birds.

Senator Angus: We all do, and we will have to see what happens. You would be the first, I am sure, to be wearing sackcloth and ashes if the court were to strike down the bill.

Senator Spivak: I will be very concise. Mr. Gold's proposal has to do with separating due diligence from reverse onus. He made the case that reverse onus on due diligence is not easy for people to prove and that, therefore, if you made it so that the prosecution had to prove it, due diligence would become a live issue. The accused would not have to prove it, but, rather, the prosecution, and this would be a better provision.

It strikes me that this is a radical change to introduce into a field of law, but we have been told by others that this law would be challenged immediately as to its constitutionality.

The Chairman: To be very specific, his suggestion has to do with proposed subsection 13(1.8). It was to the effect that if the words ``establishes that they'' were removed from that paragraph, it would make the bill Charter-proof.

Ms. Dawson: It is the same old discussion we have had. It is re-reversing the onus. It would be impossible for the Crown to establish the diligence aspect. The onus is reversed because the person who has to establish it is the person who has the wherewithal to do so.

We have discussed how this is the approach taken in many similar pieces of legislation.

Senator Spivak: His response to that was that a person's motives are proven in very difficult cases every day. He is applying the criminal law to this. I expected your answer, but I wanted to raise it because that is being suggested as an amendment to this bill.

We are getting into the murky area of constitutional law, and none of us here is a constitutional lawyer. My esteemed colleague, Senator Angus, is a specialist in maritime law, and there is Senator Buchanan. I want to ask you what the impact of that might be.

Ms. Dawson: The impact would be enormous. We would be changing it from a strict liability offence to the hardest- line mens rea offence, where the Crown has to prove everything. It is a major change.

Senator Spivak: We cannot be separating out due diligence and reverse onus. They are tied together. He was suggesting we could separate that out.

Ms. Dawson: Due diligence means you have the accused establish that he has exercised due diligence. We are using the same phrase for the same meaning.

Senator Spivak: I want to comment on the idea of privilege in terms of the Crown. I have been here for quite a while, and that has never been breached. We tried with great difficulty under previous governments to do that. It is impossible. You are in that tradition.

Senator Milne: I would like to reinforce the fact that it was indeed the major opposition party in the other place that introduced these minimum fines. It was strongly supported, Senator Angus, by your colleagues over there.

Ms. Dawson, did you describe a case earlier that shows that this is not criminal law or a true crime, but a regulatory offence that is enacted under the federal government's broad criminal powers?

Ms. Dawson: I did not put it exactly in those terms. I described it as a strict liability offence.

Senator Milne: Is it under the federal government's powers to introduce criminal law?

Ms. Dawson: No. It is under other powers than criminal law. It is under the area that we are regulating.

Senator Milne: It is a regulatory offence?

Ms. Dawson: Yes.

Senator Buchanan: We had representations from various union groups. I have spoken to some of them. They are not after money. These groups included the international union groups in Halifax, Peter Lahay and the International Transport Workers' Federation, and officers, engineers and captains.

Their main concern is the stigma that will attach to their membership in the event they are charged under this bill. Even if there is an acquittal, they have been charged with an offence that could bring imprisonment.

One of them said something interesting. They have a concern with Canada losing business because of this, and they tell us it has happened before. There are some European countries where they do not in any way criminalize officers and engineers, and business has boomed in some of these places.

Could a big port like Halifax lose business to other areas? This is a big concern. I ask that because the Chamber of Shipping says that criminal charges sanction the abrogation of the presumption of innocence. Even in cases where there is no criminal intent, there is the potential to shift marine operations from Canadian ports and reduce employment. This could cause deterioration in Canada's trade competitiveness.

That could be very dangerous. It is a concern for people in the shipping world and seafarers.

Mr. Dion: On the contrary, they are afraid of what will happen in the United States, so the careless ships are dumping their waste in Canada. It will reverse the situation, or at least decrease the problem. European countries want to enforce tougher rules than ours. I do not know if we are creating a situation where jobs will be lost. Are we followers or leaders? This is the issue.

In addition, we have a bad reputation in terms of how we protect our birds. I am sure this is hurting Canada's reputation and business in the country. In this world, when you do not respectfully carry out your duty to the environment, it will cost you money.

Senator Buchanan: In the United States there are big fines. The United States has something else that we do not. They use their Coast Guard. It is the third largest navy in the world. That is one of the reasons they do not have a problem in the United States. The other reason is that proceedings are more civil than criminal in the U.S.; and the high fines. There is no question about that.

We do not presently have the capability to do what the U.S. has been doing in ensuring enforcement. I would feel a lot better if Canada had a much larger enforcement capability, and it does not have to be the third largest navy in the world.

Mr. Dion: That is why we are requesting additional tools for enforcement. That is why we need this bill.

Senator Buchanan: Even with this bill, do you have the capability of enforcing it in the way the U.S. does?

Mr. Dion: I am not sure we have the same capacity as the U.S., but we will have an improved capacity.

We have an additional problem. The United States is welcoming vessels that are going there. Most of the vessels are only crossing our zone. That is why we need the bill.

Senator Buchanan: As you may know, we have lost business out of the port of Halifax to U.S. ports — Boston, Philadelphia, New York and Baltimore. We have lost container business. Hopefully, it is starting to build up again.

I met with a group in Halifax. They asked, ``Why would our officers, engineers and captains, through no fault of their own, now be subject to criminal sanctions?'' It is a very important question.

Senator Milne: It is a regulatory offence. We were just told.

Senator Buchanan: No. It carries with it criminal punishment. We have gone over this.

Mr. Wendt: In the United States, where the fines have been higher, a great percentage of the shipping is compliant. There are international rules for shipping about oil pollution prevention equipment that must be maintained, and the vast majority of shipping is compliant. They will see absolutely nothing new in Bill C-15 in terms of what they can do. Bill C-15 makes a specific reference to the Canada Shipping Act in terms of the amount of oil that can be emitted, so there is no new requirement.

Insofar as Bill C-15 is concerned, in conjunction with all the existing legislation in Canada, it will only make a difference to the non-compliant ships, which we do not particularly want here.

Senator Buchanan: Are you saying that, in your opinion, the independent, very qualified legal opinion we have heard is incorrect? Are you saying that this bill does not put Canada in a position where we could be subject to violations under MARPOL and UNCLOS? The unqualified independent legal opinion is that there will be challenges under UNCLOS.

Mr. Wendt: I believe this bill was drafted with the intent to ensure compliance with UNCLOS and MARPOL.

Senator Buchanan: Do you have a legal opinion to the contrary?

Ms. Dawson: I cannot testify to it. There is no way we would have gone forward with this proposed legislation if we thought we were contravening international law.

Senator Buchanan: That is not the question. Is there a legal opinion in your portfolio in the Department of Justice, or any legal opinion, to the contrary, that should have given you cause to be more concerned?

In other words, are all your legal opinions right down the line that everything is fine?

Ms. Dawson: We would have had a thorough canvassing of the area and the questions on it. My understanding is that we are satisfied that in the application of this bill, there is no reason we would have to be in contravention of those international conventions.

Senator Buchanan: Can I put it this way: We have an independent legal opinion that says it absolutely contradicts the Charter and international treaties. Are your legal opinions as concise as that?

Ms. Dawson: I could not say because I have not examined them directly. We are satisfied that this proposed legislation can be enforced without contravening those conventions.

The Chairman: The department has said that its answer to that question lies partly in the fact that the application of the law will be a question of direction and policy. In other words, the means by which it will be ensured that the application of the law will not contravene those conventions is a matter of policy. Do I understand that correctly?

Ms. Dawson: That is exactly what I was trying to say.

The Chairman: I believe the department also said that. Am I right, minister?

Hon. Stéphane Dion: Yes. That is what we have written to you.

Senator Massicotte: I want to go back to an earlier technical question, because I totally support this bill and the intention. I am just concerned about the repercussions. As senators, we are very non-partisan. I am making the supposition that my colleague, Senator Angus, who, as you may not know, is very wealthy and connected around the world, may one day sit on a board of a large shipping company in Geneva. He would make sure the procedures are well maintained and that due diligence is followed by the company. All the top standards are maintained and so on.

Senator Angus: Unfortunately, this is all hypothetical, you realize, especially the wealthy part.

Senator Massicotte: If you make that supposition, which is quite realistic in my mind, let us say that it is an international company where the ships, management and procedure are first class. However, somebody in Canada contravened clause 5.3. In other words, somebody got somebody fired or harassed somebody. My understanding of this is that irrespective of Senator Angus having done his work in asking the right questions and ensuring proper procedures, he could be and would be held personally liable. Is that accurate?

Ms. Dawson: He would have the due diligence defence, so it would be a question of whether the courts accepted that he had been adequately diligent.

Senator Massicotte: Let us deal with that. The due diligence defence does not apply to clause 5.3.

Mr. MacCallum: I have to apologize. In my last answer to you I thought you started out by referring to clause 5.5.

Senator Massicotte: No, it was clause 5.3. Your starting point is page 14, subclause (1.8). In other words, the diligence defence applies to everybody, but not in clause 5.3, irrespective of that board member having done his job professionally and meeting all international standards. Am I correct in saying that?

Senator Milne: If I understand clause 5.3, it is the harassment provisions. It has nothing to do with due diligence. It is the way a shipowner or a master treats the employees.

Senator Massicotte: However, it could be that the board member, Senator Angus, as I hypothesized, acted appropriately. He made sure policies are in place to avoid that and that the standards are appropriate and so forth. However, a subordinate in Canada fired somebody who did not act appropriately. Senator Angus did nothing wrong, so why would he be held personally liable, not corporately?

The Chairman: Is the connection right? Is Senator Massicotte's point right, that an offence is purported to have been committed under clause 5.3 on page 4, namely, an offence committed by an employer against an employee? Am I in the right place, Senator Massicotte?

Senator Massicotte: Yes, clause 5.5 attaches personal responsibility.

The Chairman: Someone is excused or exempted from the due diligence by virtue of the exclusion set out in subclause (1.8).

Senator Milne: I understand that clause 5.3 is not a strict liability offence. Due diligence is on page 14. This is a situation of an employee acting in good faith who discloses information to a federal minister. The employee cannot be fired.

This is not strict liability. This is a whistle-blowing defence here. Senator Angus is off the hook because it is not a Canadian employer.

Ms. Susan Waters, Legal Counsel, Environment Canada: This provision does not work in the same way as other strict liability offences. An employee would have to be fired to establish this. We did not want to reverse the onus in that provision that applies only to Canadian employers. It is a whistle-blower construct that has been used in other federal legislation, such as the Competition Act and the Canadian Environmental Protection Act.

The Chairman: What is the nature of the onus under 5.3? Is it correct that due diligence is not a defence under 5.3?

Ms. Waters: That is correct.

The Chairman: Due diligence is not a defence under clause 5.3.

Ms. Waters: Due diligence is not appropriate because there is an action against an employee. It is not like an offence for which you would have to establish that you exercised all reasonable care to prevent the deposition of a harmful substance. It is a different kind of offence and so due diligence would not apply. How would you exercise due diligence in dismissing an employee?

Senator Massicotte: Let us assume that Senator Angus sits on a board of a Canadian company that has a whistle- blowing policy. Senator Angus asked the right questions in compliance with the policy, but someone in his company misbehaved. Why would he be held personally liable for the wrongdoing of an employee? Why would he be personally liable under proposed section 5.5? It is broader and stronger than the standard in corporate legislation.

Ms. Waters: This is not a strict liability or an absolute liability, but rather a plain old offence. A policy decision was made that this was an important issue.

Senator Massicotte: You have to admit that compared to the MBCA, it attaches personal responsibility for unusual and inappropriate corporate behaviour; and it is personal.

Ms. Waters: Yes.

Senator Massicotte: It is tough.

Ms. Dawson: It was a judgment call that this is an important offence.

Senator Massicotte: The bill is very good, but when companies realize what it entails, it will cause some people considerable difficulty. In general, the bill is good, but it does take things quite far.

Senator Milne: I have a supplementary question on that: When I read clause 5.3, it seems to me that unlike the rest of the bill, the Crown must prove all of what is in clause 5.3 beyond a reasonable doubt. Therefore, due diligence is not required in this part. This is whistle-blowing protection for the employees who acted responsibly.

Ms. Dawson: Precisely. It is important to understand that this is not of the same nature as the other kinds of offences that we were talking about in this proposed legislation.

Senator Milne: It must be proven beyond a reasonable doubt.

Ms. Dawson: Yes, there is a higher, not a lower, onus on the Crown as to proof.

Senator Massicotte: I have no difficulty with clause 5.3, but I have difficulty with the case of the board member who did his job, asked the right questions in compliance with the company's whistle-blowing policy, and irrespective of his efforts, he is held personally responsible for something over which he has no daily control.

Senator Milne: That is a case involving a Canadian employer, and you cannot fire an employee for having acted responsibly.

Senator Massicotte: I have no problem on the corporate side.

The Chairman: We will discuss this among ourselves at the appropriate time.

Ms. Dawson: If I may point out, the provision is not new. It was modelled on a similar provision in the competition legislation. Therefore, we think that this approach is appropriate in this instance.

Senator Milne: A shipowner should not get away with things that people on land cannot get away with.

The Chairman: Are there other questions?

Mr. Dion: I urge senators to read the letter of my colleague from Newfoundland. We need this bill.

The Chairman: Thank you, Minister Dion. The minister from Newfoundland appeared before the committee as an ardent advocate of the bill.

Senator Milne: Before you adjourn the meeting, it seems to me that we might as well move directly to clause by clause.

Senator Spivak: Exactly.

The Chairman: We gave no notice today of clause by clause.

Senator Milne: That is not necessary. I move that we go to clause by clause.

The Chairman: I undertook to the deputy chair that we would not move to clause by clause.

Senator Milne: The deputy chair was at the steering committee meeting that I attended one week ago. We agreed at that time to move to clause by clause.

The Chairman: Not today, we agreed at that time.

Senator Milne: You have a motion before you.

The Chairman: We agreed at that time to move to clause by clause following the appearance of the minister, but on a different day than today. I have personally undertaken to the deputy chair that we would not move to clause by clause until she is present. However, there is a motion on the floor. It was moved that we proceed now to clause by clause.

Some Hon. Senators: Agreed.

The Chairman: In favour of the motion? Opposed to the motion?

There is a tied vote. The motion is lost. Clause by clause will be on Tuesday, May 17.

The committee adjourned.