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

Issue 14 - Seventh Report of the Committee

Tuesday, May 17, 2005

The Standing Senate Committee on Energy, the Environment and Natural Resources has the honour to present its


Your Committee, which was referred Bill C-15, An Act to amend the Migratory Birds Convention Act, 1994 and the Canadian Environment Protection Act, 1999, has in obedience to the Order of Reference of Wednesday, February 2, 2005, examined the said Bill and now reports the same without amendment, but with observations, which are appended to this report.

Respectfully submitted,



to the Seventh Report of the Standing Senate
Committee on Energy, the Environment and Natural Resources

Your Committee subscribes unanimously to the objective of protecting migratory birds from pollution, and particularly as regards the present bill, from pollution at sea. We have, in our consideration of this bill, heard 42 witnesses in the course of 12 meetings, and make the following observations as part of our Report:

1. Surveillance and Enforcement

It is your Committee's unanimous view that the resources dedicated by the Government of Canada to the enforcement of environmental aspects of extant legislation, including the Migratory Birds Convention Act, the Canada Shipping Act, the Canada Environmental Protection Act, et al, are at present woefully inadequate, and that the Government must very substantially increase these resources, with a commensurate and meaningful commitment to use them assiduously.

New legislation with extended jurisdiction and increased penalties is of no effect whatever if it, and its predecessor legislation, are not enforced. If you have many speeders on a highway, and the speeders all know that there are never policemen or radar traps on that highway, then increasing the fine from $100 to $200 will not stop a single offender. Robust enforcement will.

The Honourable Stéphane Dion, Minister of the Environment, has told your Committee of an anticipated increase of $3,000,000.00 in resources for surveillance and enforcement. This is a tiny step in the right direction, but it is entirely inadequate to the task. For Canada's efforts to save our migratory birds to be effective, a significantly more serious commitment by the Government of Canada is required. The capabilities, in this specific respect, of the Canadian Coast Guard need very substantial upgrading, improvement, and critical mass.

The Committee will, as part of its ongoing reference, closely monitor the efficacy of Canada's surveillance and enforcement capabilities under the present and other environmental legislation.

2. The Charter

Environmental law in Canada, including the present bill, often incorporates the concept of strict liability, which entails the defence of due diligence. This defence relies upon a form of reverse onus, in that it permits an accused to defend against a charge by establishing that reasonable care was taken to avoid the commission of the offence. Your Committee has heard testimony which argues that, given the nature and extent of the penalties contained in Bill C-15, its strict liability provisions, particularly as against seafarers, may place it in constitutional jeopardy. The Government has given assurances that under the statutory and jurisprudential sentencing guidelines, and their policy for implementation of Bill C-15, care will be taken that its enforcement will not violate the Canadian Charter of Rights and Freedoms.

Close attention to this question will be paid by your Committee on an ongoing basis as the legislation is applied.

3. Canada's International Undertakings

Your Committee has heard testimony that C-15 contravenes certain of Canada's obligations, under the United Nations Convention on the Prevention of Pollution from Ships (MARPOL) and the United Nations Convention on the Law of the Sea (UNCLOS), particularly provisions which prescribe the circumstances in which detention, arrest, and imprisonment might occur. We are concerned that in ensuring that we honour international agreements to which we are signatory, and for practical and good commercial reasons, Canada should not allow any such contravention.

The Minister has given assurances to your Committee that the Government of Canada's prosecution, sentencing, and other policy guidelines will obviate this concern. This is very much to be hoped, because contraventions by Canada of our international commitments could have very serious legal and financial consequences.

Your Committee has heard that potential liability under Bill C-15 might act as a disincentive to salvors to attend at oil and other maritime pollution incidents for the purpose of containment and clean-up. Your Committee is concerned that the Government of Canada's prosecution, sentencing and other policy guidelines will obviate this concern.

Your Committee will follow surveillance, enforcement, prosecutions, and sentencing under C-15 with great interest and careful scrutiny. We hope that there will be surveillance and enforcement; and we expect that great care will be taken in prosecution and sentencing.

Your Committee intends to invite the Minister of the Environment to meet with the Committee within one year from the tabling of this Report to discuss progress on the implementation of Bill C-15 and the observations made herein.

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