Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 9 - Evidence - June 9, 2009
OTTAWA, Tuesday, June 9, 2009
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C- 16, An Act to amend certain acts that relate to the environment and to enact provisions respecting the enforcement of certain acts that relate to the environment, met this day at 6:25 p.m. to give consideration to the bill.
Senator Grant Mitchell (Deputy Chair) in the chair.
[Français]
The Deputy Chair: Honourable senators, this is a meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources. I am Grant Mitchell and I represent the Province of Alberta in the Senate. I would welcome all of my colleagues on the committee, the witnesses, members of the public, officials in the bleachers and members of the public who are watching on television.
I am chairing today although I am the deputy chair. Senator Angus is the chair, but was unable to be here. It is my pleasure to fill in for him and chair this meeting.
I would like to introduce to viewers, witnesses and people in the room, the senators with whom I have the pleasure of working on this committee. They are: Senator Tommy Banks, a colleague from Alberta, specifically from Edmonton where we both live; Senator Richard Neufeld from British Columbia; Senator Fabian Manning from Newfoundland; Senator Bert Brown, also a colleague from Alberta; Senator Gerry St.Germain from British Columbia; Senator Lorna Milne from Ontario; Senator Pana Merchant from Saskatchewan; Senator Nick Sibbeston from the Northwest Territories; Senator Mira Spivak from Manitoba; Senator Larry Campbell from British Columbia; and Senator Willie Adams from Nunavut. I should tell you that this will be Senator Adams' last meeting. It is a very sad day for all of us who have known him, and for the many people who have worked with him over the 32 years that he has been a member of the Senate. He will be sorely missed.
For the benefit of the viewing public, let me also introduce the witnesses who are with us this evening. We have John O'Connor, Chair, Committee on Pollution and the Marine Environment, of the Canadian Maritime Law Association; Mark Boucher, National President, Canadian Merchant Service Guild; Captain Stephen Brown, President, Chamber of Shipping of British Columbia; Kaity Arsoniadis Stein, President and Secretary-General, International Ship-Owners Alliance of Canada Inc.; and Peter Lahay, National Coordinator, International Transport Workers' Federation.
I believe all but one of you have a presentation to make. We would like to keep the presentations short enough so that we have time left over to ask questions. Please proceed. We are interested in what you have to say.
Mark Boucher, National President, Canadian Merchant Service Guild: Thank you. As Senator Mitchell stated, I am National President of the Canadian Merchant Service Guild. That is an association of 5,000 Canadian ships' officers.
The guild is affiliated with the International Transport Workers' Federation. The ITF works to improve conditions for seafarers of all nationalities and promotes good regulation of the shipping industry. We take a special interest in legislative matters affecting seafarers. While the Canadian Merchant Service Guild represents licensed officers, senior crew members and marinepilots in Canada, the ITF represents all categories of the 15,000 seafarers in Canada's domestic industry.
I will be pleased to explain where our workers are in Canada and what they do precisely that is important, if there is interest. We know you had to make a decision on short notice regarding whether to hear us today. We appreciate the opportunity to be able to speak to you about this matter.
Seafarers are on the front lines of pollution prevention on ships. Canadian seafarers, in particular, have a good track record. We are in favour of having effective laws concerning environmental protection. We recognize and support Canadian society's strong disapproval of environmental offences.
A key point I want to make is that the marine sector is having tremendous difficulty recruiting Canadian seafarers. It is a worldwide problem in the industry. The average age of the seafaring workforce in Canada is high. We are trying to address this chronic shortage by doing everything we can to recruit young people into the industry. The Canadian Merchant Service Guild and the ITF have a number of promising initiatives under way in cooperation with other organizations, but more progress needs to be made.
Despite these efforts, one of the factors bound to scare off potential candidates is this type of legislation. In 2005, former BillC-15 amended the Migratory Birds Convention Act and introduced strict liability for ships' captains and chief engineers. The Crown is only required to prove that the prohibited act occurred, such as a discharge of pollution. The Crown is not required to prove that the accused intended to commit the act, or even to prove that the accused was negligent in doing so. That strict liability exists now in section13 of the current legislation.
In our view, we see the problem now being taken up another notch, with BillC-16 communicating to potential candidates in the marine industry that if you are a seafarer, you might get caught up in this. You might be fined huge amounts of money and spend a fortune trying to defend yourself.
Canada needs strong environmental protection and Canada also needs a strong marine industry. We need to be able to attract a new generation of seafarers by ensuring that they will not be treated unfairly, even when we know we are operating in an atmosphere where there is a necessity and an appetite for increased enforcement of environmental legislation.
We have serious concerns with parts of BillC-16, including section126, which establishes the new environmental monetary penalties regime. In paragraph9, it states that the minister only has the burden of establishing, on a balance of probabilities, that the person committed the offence. This is reducing the onus of proof on the Crown that would be found in a penal case, where it is beyond a reasonable doubt, to the lower civil test of a balance of probabilities. As we understand it, this means that if those considering the case decide that it is more likely than not that you committed the offence, then they must convict, and they do not need to be concerned with reasonable doubts.
Section11 of this new penalties regime in BillC-16 even goes on to say that a person named in a violation does not have a defence that the person exercised due diligence to prevent the violation. Our view is that this proposed threshold of proof is too low. While this does simplify prosecutions by the Crown, it is not affording proper rights to accused ships' crew members, and we are concerned that this will facilitate convictions.
Obtaining the qualifications, training and experience required for senior levels of officer certification takes many years — more than it does to become a medical doctor. This is done by only the most conscientious seafarers who are capable of this type of career progression and want to take on these additional responsibilities. It is at these senior levels that the shortage of qualified licensed personnel is the most serious.
The criminalization of seafarers is making this problem worse. Without qualified, certified officers, the ship will not move. Whatever important work that ship was doing will grind to a halt because they will have three-quarters of a crew but cannot sail anywhere without key individuals.
To prevent this, we need to do everything possible to have a level playing field and reassure seafarers that they will be treated in a fair and reasonable manner. There are already enforcement mechanisms that are effective without having to increase the criminalization of seafarers and add more disincentives for young people entering the marine industry.
The seafarers are the employees, working diligently day-to-day for employers. They do not build or design ships or ship systems; they do not make capital acquisition decisions about when to replace old ships or old equipment; and the Canadian ships they operate are, in many cases, quite old. The seafarers see themselves as the ones who will be charged and hit with fines, and the employers will not defend seafarers or pay fines for them. The pool of candidates who are willing to take that risk by becoming seafarers is decreasing.
I want to thank you for the opportunity to present our views on this legislation. These views were sent in writing a few days ago and we hope that they will be given consideration.
[Traduction]
John O'Connor, Chair, Committee on Pollution and the Marine Environment, Canadian Maritime Law Association: Mr.Deputy Chair, as I am the only one from the Belle Province, I will not make my presentation in French. We thank you for your invitation and are pleased to be here. I am the Chair of the Committee on Pollution and the Marine Environment of the Canadian Maritime Law Association.
[Français]
We are a cross-Canada association — we call it the CMLA in English, the Canadian Maritime Law Association — and we represent the full spectrum of interests in the marine field across the country, including shipowners, associations of workers, charterers, shippers, consignees, etcetera. We have a bird's-eye view of the system.
We are also a member of the CMI, which is the Comité Maritime International. The CMLA is Canada's branch of the CMI. Their role is to harmonize international maritime legislation; and Canada and the CMLA has been working with Transport Canada in the past to try and attain that goal. We have worked on virtually every bill since the 1970s — the Oceans Act, Canada Shipping Act, Marine Liability Act. Our goal is to try to harmonize legislation and to see that our international convention obligations are respected.
We are not here tonight to talk about what we disagree on, although there are things on which we disagree. I have had the occasion to read the briefs of the other persons here at the table and I am pleased to say that we support them in large part. For instance, Mr.Boucher was eloquent in telling us how the recruiting problem is important. We had a meeting of the CMLA in Vancouver last year, and the Pacific Institute, which is the marine training centre on the West coast, came and explained how they were having a hard time recruiting young people. We asked why and discovered that there were two reasons: First, young people did not want to be away from home — When you work on the ships, you are away from home for a long time — and second, they were concerned about criminalization. They said that being away from home has been around ever since shipping was invented, but not criminalization.
I think that is a point we should keep in mind. Criminalization for our young people is not good. This is the 20th anniversary of the Tiananmen Square catastrophe and the president of France said:
[Traduction]
A nation that shoots its youth has no future.
[Français]
It is important for us to listen to what Mr.Boucher is saying. I have also read Ms.Arsoniadis Stein's presentation, and we support that, too. The constitutional aspect of this bill is extremely important.
However, I am here on three points, which are as follows: First, when BillC-15 was passed in 2005, the position of the department was that there was no conflict between BillC-15 and the United Nations Convention on the Law of the Sea. That has changed.
I can tell you that there is a spy in this room — Mr.Woodworth, from the other place — who has now, on record, admitted that there is a conflict on the face of the act. However, there is a protocol, a prosecution protocol, whereby they will not prosecute someone if it is in conflict with international obligations, such as the UNCLOS convention.
All we are saying on that point is that I am happy to hear it. I have only been working in this field for 30 years, and that is the first time I heard it. I am really happy to hear it but it would seem to me that, as politicians, you know that appearance is equally as important as what you are doing. It is not just doing the right thing; it is seeing that it is being done.
I think we should add a clause. In our brief, we have a clausewhere we simply say that this bill — and it should be added into each act that is amended by the bill — is to further Canada's international obligations, and if there is a conflict then the international convention would take priority. That is our first suggestion. I do not think it would cause any trouble. Mr.Woodworth would not tell me that he supports it because my understanding is that he is not sure if that sort of clause is in any other legislation. Unfortunately, I have not checked that for myself; I never thought of that argument, which is an excellent one. However, even if it is not, if that is our protocol, there is no harm in saying so and then the whole world understands how it works.
Our second point has to do with another convention called the Civil Liability Convention, or CLC. That convention is contained within the Marine Liability Act, and the CMLA was very active and very much involved both with the House and with the Senate — in fact, I appeared myself — when that legislation was enacted. We are supporters of the CLC. The CLC is a way of compensating for pollution, and it is an international convention to which Canada is a signatory.
The problem with the Marine Liability bill prior to the amendment was that there were sections in that bill, for example in the Canadian Environmental Protection Act, or CEPA 1999 legislation, which says that a sentencing court can make an offender pay compensation to anyone. That is like doing an end run around the conventions.
Under the CLC convention, we have a channelling provision whereby liability is channelled to the shipowner. It is a way of obtaining compensation. The convention says that certain people cannot be asked for compensation: That includes seafarers, charterers and operators. They want to make it simple so that you know where to go to get compensation; therefore, they take away the right to claim compensation from any of these other people. If one of these other people, a seafarer for example, were to be an offender and to be fined, we are not complaining about fines, but then the court would have the power to add that he should pay compensation.
Mr.Woodworth has said that the House of Commons has settled this point by adding in a clause that says that this legislation will not apply if the person has the right to make a claim under the Marine Liability Act. We are saying the same thing. We are asking you to tweak it so that if the claim is subject to the Marine Liability Act, we do not want to be a Catch-22. When someone cannot make a claim under the Marine Liability Act because of the wording of that convention, and therefore comes to the judge and says, ``I cannot make that claim; therefore, order him to pay me,'' that would be doing an end-run around this convention.
My final point has to do with ``non-use.'' Non-use is a bacterium that has come to us from the United States. It is not a good idea. Non-use is an idea that they invented in the United States, which is that even though we will not compensate or clean up some pollution damage, how much is the worth of that item, in terms of not being able to use it in the future, such as a coral reef? It is something that belongs to no one, as a rule, or belongs to the Crown. In the United States they have that thinking. We do not need it here. The international convention, the CLC, says that no compensation shall be ordered except for things that are done, or will be done. You cannot order someone to pay compensation for non-use. That is what the convention says.
In this act, the court can order an offender to pay for non-use, and I can go through the sections for you, if you wish. My point is that this is not a good idea, from our position. If you were to add in a paragraph such as we suggest about meeting our convention obligations, we would probably be able to live with this because we can get around it with reference to the convention. That is the third and final point I have to make about what we think should be changed.
I hope everyone on the committee has received a copy of my report, which is only three or four pages in length. I am, of course, willing to answer any questions. Once again, thank you for the occasion.
[Traduction]
Kaity Arsoniadis Stein, President and Secretary-General, International Ship-Owners Alliance of Canada Inc.: I want to thank the Honourable Senators for giving us this opportunity to speak about BillC-16. I also want to thank Ms. Gordon and Ms. Saville for having organized this meeting.
[Français]
I am the President and Secretary-General of the International Ship-Owners Alliance of Canada Inc. Our group represents approximately 400 vessels, locally and internationally, managed out of Vancouver, including boat carriers, tankers, containers, tug operators, B.C. ferries — one of the largest ferry operators in the world — and Teekay Corporation, which is one of our founding members and transports more than 10percent of the world's seaborne oil.
I am also here on the behalf of Council of Marine Carriers, an association operating Canadian tugs and barges covering the entire West coast of North America and the Arctic.
The board of directors of the Vancouver Maritime Arbitrators Association lend their full support, as well as the North American Indian Charter of Shipping and Trade, and international shipping associations whose letters have been submitted: The International Chamber of Shipping, the International Group of P & I Associations, BIMCO, the Baltic and International Marine Council, and the International Shipping Federation.
Our group came before the Senate during the Thirty-eighth Parliament with respect to BillC-15, which made a pollution incident a criminal offence regardless of whether there was any wilful misconduct on the part of the accused. Strict criminal liability was introduced. We are before you once again with the same concern.
This time, we are hoping that the robust environmental clauses of BillC-16 and the enhanced enforcement measures that Transport Canada has implemented, such as aerial surveillance and satellite technology, with such prosecutorial protections in place, there is no need to limit the presumption of innocence. We believe a review of the issue is warranted.
We are concerned about the impact of criminalization and unfair treatment of seafarers, as was discussed by Mr.Boucher. BillC-15 is discriminatory towards Canadian companies. Not a single shipping company has set up in Canada since the passing of BillC-15 that we are aware of. Captain Brown will elaborate on the dissuasion of business investment in Canada.
Mr.O'Connor has set out Canada's inconsistencies with international treaties to which it has subscribed, which make a fundamental distinction between accidental and intentional pollution and point to monetary penalties rather than imprisonment being the normal sanction. You have received detailed briefs from our international counterparts in London, Denmark and Hong Kong, which detail Canada's infringements.
Trade has always been at the forefront of our nation's economy. In the 1950s, Canada was considered a major maritime nation. This is no longer the case. We have lost our way. This state of affairs is inconsistent with our government's portfolio of a comprehensive economic package to stimulate the Canadian economy. With government investments of over $2.5billion for the Asia-Pacific Gateway and further investments for Atlantic trade corridors, we should not ignore shipping, which can become a true economic engine for Canada's GDP, especially during this time of economic crisis.
We are not opposing BillC-16. We have a strong commitment to the environment. We support strong environmental laws and the principle that the polluter pays. We do not oppose the proposed fines on a strict liability basis. We do not oppose the sanction of imprisonment. We do oppose the loss of the presumption of innocence where imprisonment is the sanction. It has been stated that we are in line with the U.S. and the European Union. This is absolutely incorrect. For criminal sanctions, the right to be presumed innocent is firmly in place.
With respect to the constitutional challenge, we can all agree that there is a prima facie breach of section11 (d) of our Charter of Rights, the right to be presumed innocent until proven guilty. The issue turns on whether this breach can be saved under section1 of the Charter, which makes it clear that a law limiting the Charter is valid if the law is reasonable, and one that can be demonstrably justified in a free and democratic society.
The test applied by our courts is found in the Supreme Court of Canada decision of R v. Oakes, called the Oakes test. It requires the sum of four steps to be met. We are certain that steps 3 and 4 of this test cannot be met.
Step 3, ``least drastic means,'' is the heart and soul of section1 justification and is the hardest hurdle because of the risk involved of convicting someone who might be innocent. It states that the law should impair as little as possible the right or freedom in question. In other words, pursue the objective by the least drastic means.
Step 4 will also be difficult to pass, and that is ``proportionality.'' It states that the means chosen must be such that their effects on the limitation of rights are proportional to the objective. In other words, the law should impair the right no more than is necessary. The leading case, R. vs Wholesale Travel Group, Inc., agreed that the purpose of reverse onus was to avoid the loss of conviction because of evidentiary problems. Bearing these tests in mind and considering that BillC-16 is now raising monetary penalties that are on a strict liability basis to maximums of $6 million and $12 million per day, such fines go well beyond the cost of doing business.
The Crown has strong powers to arrest a vessel and hold it as an asset at capital costs of $200 to $300 million, not including the price of the cargo on board. There are further enforcement tools, sentencing tools and procedures now made available under BillC-16, thus eliminating the fear of loss of convictions and removing the need to limit constitutionally protected rights.
It is our opinion that the strict criminal liability in this context is ultra vires our Constitution, and the offending legislation has a real chance of being struck down as void. Can the policy ends of the legislation be achieved in a way that avoids a Charter breach? Has the Attorney General satisfied himself that it is necessary to threaten individual liberty when $12 million fines are in place and include the ability to arrest the vessel as an asset? It is the duty of the Senate to amend this bill in order to avoid litigation that the Attorney General cannot win.
The amendment is simple. The benefits are significant. We recommend that the following clause be inserted:
Notwithstanding anything to the contrary in this Act, where imprisonment is sought as a penalty, every accused shall be presumed innocent of the offence charged until such time as the Crown has proven the case beyond a reasonable doubt.
We look forward to working with the Government of Canada to establish a strong maritime industry, and look forward to continued, productive and cooperative relations.
[Traduction]
I hope we will find a solution that will be satisfactory to us all.
The Deputy Chair: Thank you.
[Français]
Captain Stephen Brown, President, Chamber of Shipping of British Columbia: Mr. Chairman, senators, ladies and gentlemen. Thank you very much for the invitation to speak to the committee this evening. I come here as the president of the Chamber of Shipping of British Columbia, executive director of the Western Marine Community, and also as a director of the Vancouver International Maritime Centre. You will be pleased to know that I am not a lawyer, but I do have a lawyer on my board. He is a Queen's Counsel, actually. I come here this evening with the full authority of my board and the blessing of that board. I am just a seaman, as you learned earlier, who, at a very young age, took off to see what the world had to offer and 14 years later, to everyone's surprise, not least mine, I was a captain and I assumed the opportunities, responsibilities, and sometimes the anguish that goes with that position.
In a long career at sea, you deal with many cultures, and the human stories behind these cultures are often very sad. You deal with loss of life, fire, flood, collision, piracy, war zones, enhanced port security these days, and all manner of legislation that today characterizes and sometimes overwhelms the life of a mariner. Indeed, even as we speak this evening, more than 300 innocent seafarers are detained on hijacked ships off the coast of Somalia and an unknown number off the coast of Nigeria. It has become increasingly difficult since 9/11 for seafarers to take shore leave in many jurisdictions of the world.
As a trading nation, more than 90percent of Canada's non-NAFTA trade is dependent on international shipping. It is the lifeblood of the world and of this nation's economy. Of all the industries on this earth, arguably ours is the only one that the world absolutely could not exist without. For some reason, the world has long recognized that such an international industry, as with the airline industry, requires a framework of consistent international legislation in which to operate.
If you would allow me, I would like to take a minute to comment on shipping and climate change. I noticed it came up in last week's deliberations and I would like to perhaps expand a little on some of that.
Contrary to comments or the persuasions in some quarters, shipping is really not seeking any special treatment. On the contrary, shipping is in the forefront of confronting the world's response to the challenges of climate change. The international shipping industry approach is coordinated under the authority of the United Nations, of which this country is a founding member, and by the International Maritime Organization, which we fondly refer to as the IMO. The IMO's Marine Environmental Protection Committee, in 1997, agreed on a protocol known as MARPOL Annex VI, which came into force in 2005, having been ratified by the majority of member states. MARPOL Annex VI sets limits on the emission of sulphur, nitrogen oxides, particulate matter and others, and to date some 40 countries, representing more than 80percent of the world's fleet, have ratified Annex VI. Unfortunately, Canada has yet to do so, despite intense lobbying, I would have to say, at times by the domestic and international marine community. Though having strong unilateral tendencies in climate change issues, even the previous U.S. administration recognized the importance of this protocol and ratified it in 2008.
Amendments to Annex VI were enacted in 2007, which will require ships to burn progressively cleaner fuels, and amendments to Annex VI provided for member states, should they choose to do so, to apply for what we call an emissions control area. Disappointingly, having yet to sign the original Annex VI, Canada was disqualified at this international forum from voting on these progressive amendments, which enjoyed the strong support of the domestic and international maritime community.
It is perhaps worth noting that in March2009, even though it was an unsigned protocol, the U.S. and Canada filed a joint application to establish just such a North American emissions control area. This will extend up to 200 nautical miles offshore. It enjoys the strong support of the international and domestic shipping industry despite the ambitious dates and the concern for whether the fuel supply will be there when the time comes.
On a more localized basis, in 2005, faced with some inaccurate media stories, the Chamber of Shipping in British Columbia, in cooperation with Environment Canada, conducted a detailed air emissions inventory. Our membership willingly cooperated in this exercise and the results were independently audited, ultimately revealing ship-sourced air pollution to be less than 50percent of what was alleged. A repeat inventory is scheduled for 2010.
On the subject of greenhouse gas emissions, and I note there was quite some discussion last week on that issue, our industry does look forward to a meeting of the IMO Marine Environmental Protection Committee in London next month, which will be the culmination of many months of effort towards building a census to ensure effective reductions in emissions. I would be pleased to elaborate further on that issue, should anyone have any questions later.
Speaking on climate change to the Howe Institute last week, the minister did say that our approach as a country is based on recognition that consensus at Copenhagen is crucial, but one that has to be with both the developed world and the developing world, and we fully agree with that. The minister went on to say that these are founding Canadian principles. That is what we espouse at the international table. We are very heartened by that comment because there is a recognition that the only way forward on environmental issues, judging from those comments, is in the international forum and everyone getting around the table and setting the parameters for an international agreement. Again, as an international industry, we fully endorse the minister's comments.
Turning specifically to talk to BillC-16, it was said before this committee last week by the minister, ``I have a view that you do not achieve excellence in public policy unless you are prepared to talk to people.'' Of course, we endorse that approach as well. The difficulty and the great disappointment for the shipping industry is that there was no consultation prior to publication of BillC-16, or the predecessor of BillC-16, which was BillC-15. In the absence of that consultation, we in the shipping industry were unaware of these bills prior to their publication in the House. Given the acknowledgment and endorsement of government at so many levels that the key to success in working collaboratively with our partners within the UN framework, it is troubling to know how we have come to this point on BillC-16, whilst having full knowledge of the relentless international criticism of BillC-15 from 2005.
It was said here last week that absolutely nothing in this bill contradicts UNCLOS, and we must accept, as a matter of reliable practice, that prosecutors and the prosecutorial arm of the Government of Canada will not seek imprisonment if it were a violation of international law to do so. That is a fundamental aspect of this law. The Attorney General would clearly exercise his discretion to ensure that his government did not violate international law. That was stated before you last week.
It may be asked, what is the problem? If that is the case, what is the problem? The problem, I have to say, is definition, reliability and sustainability in defining exactly what is reliable practice. How durable is reliable practice?
The problem, ladies and gentlemen, is that when an incident occurs, there is an inevitable public reaction, and the media goes ballistic looking for heads to be delivered on a plate. Believe me, I have been there. The captain and the chief officer of the Hebei Spirit have been there since December of 2007, detained in South Korea. It was a terrible incident. I sent a video in this matter to the clerk of the committee last week. I do not know if you had an opportunity to look at it. It tells a rather sad story, and it certainly heightened the awareness on this side of the table of what can happen when someone is looking for blood. It is a very good example.
Clause 102 of the bill speaks clearly of imprisonment terms ranging from six months to three years. Proposed sections 13.12 and 13.13 extend the threat of fine and/or imprisonment beyond the master and/or the chief engineer — and they are named very directly — to any director, officer, agent or mandatory of the corporation, who directed, authorized, assented to or acquiesced or participated in the commission of an offence. Proposed section13.13(2) goes even further and extends liability to every director and officer of the corporation who directed or influenced the corporation's policies or activities. We go one further with the following clause, which states unequivocally that it is sufficient proof of the offence to establish that it was committed by an employee, agent or mandatory of the accused, whether or not the employee, agent or mandatory is identified or prosecuted for the offence.
I submit to you that it cannot be right when the only defence of the accused is that of due diligence. The absence of onus on the Crown to prove beyond a reasonable doubt must surely be recognized as unacceptable in these circumstances.
As to what would provide comfort, I will summarize. Most certainly, if imprisonment for seafarers is not to be contemplated in accordance with and consistent with UNCLOS, then we ask that it be written unequivocally out of the bill, and equally so for other officers of a corporation.
Alternatively, we could look at some other wording and, as Ms.Arsoniadis Stein mentioned, we could have something along the lines of ``Notwithstanding any provision of this act, a penalty of imprisonment shall not be imposed unless the guilt of the accused is established beyond a reasonable doubt.''
In Vancouver today, we have some challenges, and one of those is that we have criminal gangs walking our streets. Everyone knows who they are; they know the names, but these people cannot be prosecuted because, as the law stands today, we cannot achieve proof beyond a reasonable doubt. That is the only reason some of these people are on our streets today. Unfortunately, two standards seem to be at work here. In my humble seaman's way, I struggle with this inconsistency.
Regarding the Asia-Pacific Gateway, tomorrow I will make a presentation to 31 trade commissioners in Vancouver before they go off into the world representing this good country and hoping to do a good job in selling what we have to offer. Last week, it was touched upon that various government departments are promoting the Asia-Pacific Gateway and, of course, they include Transport, Industry and Foreign Affairs, not to mention the provincial governments of British Columbia, Alberta, Saskatchewan and Manitoba, and they are all working hard to promote the Asia-Pacific Gateway. We must also give credit to the federal-provincial initiative to launch the Vancouver International Maritime Centre in 1991. That was a business-friendly operating objective to specifically attract international shipowners to establish operating bases in that city.
We would respectfully point out to senators that no similar legislation has been contemplated in any other international maritime centre compared to BillC-15 and BillC-16. It is tough for those of us who support the opportunities presented to the Vancouver IMC to understand what is driving Canada in this direction. I respectfully submit that it is not our industry that is seeing skeletons or boogie men.
We find it regrettable that BillC-16, in compounding the problems of BillC-15, has touched a raw nerve of our industry. There will be a cost to the economy. There are those who take the view that this may not be of consequence, but it will be difficult to explain that to those who lose their livelihoods and careers.
Another feature of this discussion needs to be the establishment of port reception facilities. There are various IMO recommendations on establishing such facilities. If we are seeking zero tolerance, we need to give ships the ability to discharge what it is they do not want on board. We need to do much more in Canada on that issue, and I would be happy to speak at length on that point should you wish me to elaborate.
As to where do we go from here, there is an unfortunate disconnect between government and industry on this issue, and it is very unfortunate for the simple reason that we are very important to one another. We understand that from a political point of view it is difficult, at first glance, when you see legislation which has the perception of being good environmental legislation, to look the other way or turn it down. This legislation, I submit to you, does have that perception but the devil is in the detail.
The problem for us is that, at its core, the legislation has the perception of toughness on environmental offenders, irrespective of the potential to violate Canada's long-standing treaty commitments and damage to international standing. Pushing large objects of machinery around the world, sometimes of the magnitude of several hundreds of thousands of tons, is fraught with human and technological challenge. Let us recognize that nobody is seeking to deliberately pollute the oceans, any more than we wish to see an aircraft fall inexplicably out of the skies with 228 people on board, which is what happened last week. None of us wants to see such things happen.
The primary objective is that from unintended events we must learn and apply the lessons in order that we minimize the risk of repeating them. This is the consistent and effective approach of the airline country, and it is surely the correct approach for the marine industry.
The Deputy Chair: Thank you very much for your presentations. I have started a list of senators who would like to pursue your testimony.
Senator St.Germain: Thank you to all of you for your excellent presentations. Listening to you carefully, I find it boils down to the presumption of innocence. How much damage is done to the habitat? How many birds are oiled and killed annually as a result of the marine industry? Do you have any statistics on that? Is there any information out there?
Peter Lahay, National Coordinator, International Transport Workers' Federation: The place to check for statistics on that is Transport Canada. They have an excellent aerial surveillance program now. You would find that the statistics from the time that this law came into force through BillC-15, which contained amendments to the Migratory Birds Convention Act, will show that those numbers have dropped to probably extremely small numbers.
They have aircraft flying around both coasts now that have radar detection and infrared detection. They can find a body floating in the water by the oil that comes off of it. There is not a speck of oil that Transport Canada cannot find now with the various technologies. Transport Canada does have those figures that you are looking for, senator, and I am sure Environment Canada does, too. However, I do not think anyone brought those exact numbers, but we could get back to you.
Senator St.Germain: You have indicated that BillC-15 and BillC-16 are responsible for difficulties in recruiting seafarers. Among the reasons you give is that young people do not like to be away from home, but there is not much we can do about that. Regarding the criminalization aspect, is there anything else that is associated with this? It would seem to me that any young person wanting to enter into the profession would not think of criminalization to that degree. As a former air force pilot, I can tell you that you can get in trouble on an airplane, but I did not do low flying over towns, which was done occasionally by some people — not me, of course. I would like further explanation on the criminalization aspect. It seems a little far-fetched, because remuneration in the industry is excellent.
Mr. Brown: It is not that good.
Senator St.Germain: I had a neighbour who was a sea pilot, and he was doing very well. Maybe you could answer that for me.
Ms.Arsoniadis Stein: I would love to answer that, and maybe Mr. Brown could follow up.
Criminalization for seafarers is an absolutely massive issue at our industry. Numerous papers have been written about it. It is a big-ticket item at the IMO with Secretary-General Mitropoulos. UNCLOS and our international conventions state that the penalty should not be criminal penalties but should be monetary penalties.
I have a paper here by Roger Tupper, who is director of the Hong Kong Special Administrative Region of the People's Republic of China. It is entitled ``The Trend Towards Criminalisation of Seafarers in Pollution Accidents.'' That is just one paper that I have. You received a document from the Hong Kong Shipowners Association stressing the importance of criminalization.
We are dealing with criminalization that has the presumption of innocence in place. Today, we are not even saying that we oppose criminal sanctions. However, if criminal sanctions are to be a penalty, we would like to have the presumption of innocence in place. I do not know how much more to tell you, other than to say that it is a significant item for this industry.
Senator St.Germain: Why would the government put the Charter in question? Obviously there is a reason for doing that, and it is the inability to prosecute. You can fly overhead and do surveillance. I have been on the East coast flying with the Air Force when they are carrying out exercises. The ability to prosecute is the reason that the presumption of innocence is put into question and why you are sitting here seeking this to be included in BillC-16.
Ms.Arsoniadis Stein: It is a good comment. BillC-15 introduced strict criminal liability. Perhaps there were not the sentencing provisions needed when that came in. Since BillC-15, the landscape has changed completely. The tools necessary for excellent enforcement are there.
Mr.O'Connor: I believe that BillC-16 and BillC-15 are a little over the top on this issue. It is not necessary to go as far as they do. I do not like to call it window-dressing, but it looks very tough. I think all of us here are in support of tough measures, but you do not need to have these add-ons to convict someone.
We have an excellent system in this country. There have been numerous cases where vessels have polluted and have been charged. There is no need to put in question the Charter challenge. There are arguments pro and con about whether we infringe the Charter. We will never agree on that here this evening. Why are we even asking ourselves this question and going this far? We do not need to have absolute penal liability, as you do in proposed section11 of the administrative monetary penalties portion of the bill at clause126. I have never seen it in any other federal legislation in any field. This is the first time. I even asked my friend here from the other place who said that he knows of none. He thinks some provinces have it, so why should the federal government not have it?
This is not the way to go forward. We have the Charter and we should live and die by the Charter. You do not need this section, and you do not need it for prosecutions. When we changed the Canada Shipping Act in 2001, there was a huge debate. The Department of Transport came to the conclusion that they did not need this type of tool. I suggest to you that it is totally unnecessary.
Senator Banks: Mr.O'Connor, it is my understanding and information that strict liability offences were not introduced in BillC-15. They existed prior to that in environmental law in Canada. I think that is the case. If that is not so, then I have been misinformed, as I was then. I think that you will find it in several places in environmental law in Canada and that it existed in those places before BillC-15, which is a subject with which this committee is quite familiar.
With respect to Captain Brown's reference to discharge facilities, our report on BillC-15 was very strong. Maybe we did not make it strong enough regarding the lack of discharge facilities. Temptation exists if you have a ship with a lot of stuff in it and you cannot dispose of it legally. If facilities are not provided in Canadian ports, which you have indicated they are not, then that is a distinct short-fall between what is intended and what actually happens. You are right, and I hope we mention that in our report. It has not changed very much since then.
In the main, the seafarers and companies that you represent are probably not the people who will break these laws. You have referred to several prosecutions of people who have broken the law. However, they have mostly been inadvertent and the fines have been minimal. There are people who do not belong to your associations.
Captain Brown said that no one ever intends to pollute the oceans. I wish that were true. I am sure that is true for people who work in the organizations that you represent, but it is not true in the world. I believe, and other members of this committee believed when we dealt with the question of strict liability in BillC-15, that in addition to whatever fines and seizures may be made, personal responsibility needs to be attached over and above fines and seizing stuff. We need to recognize the increased importance of environmental laws regarding the seas and the people who work in them as an underpinning.
Assume for a moment that there should be personal responsibility somewhere among proprietors, masters, engineers or whomever. A ship, offshore from Newfoundland at midnight in a fog, discharges dirty bilge oil. The ship may be impounded someplace, possibly Newport News, Virginia, since they may not be going into a Canadian port. The master, chief engineer, second engineer and second officer all say they did not do it or authorize it. The concept of strict liability requires proof only that the event happened, and then affixes a liability to named persons. How would you apply a personal responsibility to that event having happened?
Mr.O'Connor: I would like to comment on two items. The first is about strict liability. Strict liability definitely exists in other environmental legislation. There is a misunderstanding, though, about what strict liability is. Strict liability means liability without the Crown having to prove the mens rea, as we call it in law, the criminal intent. The Crown simply must prove that it happened. However, there is an asterisk to that. The Crown must prove it beyond a reasonable doubt. According to the regular rules of criminal law, they cannot say that they think the ship polluted. They have to prove they polluted beyond a reasonable doubt. If that is proved, then the defendant will be found guilty unless he shows due diligence to avoid the event.
Senator Banks: On the basis of the balance of probabilities.
Mr.O'Connor: Yes. That is what the Supreme Court said both in 1978 before the Charter and in 1994 after the Charter. We need to be careful because that is all it says. It does not go beyond that to reduce the onus of proof on the Crown to prove pollution. It does not talk about taking away the defendant's right to argue due diligence. That is what this bill does. You need to be careful to differentiate between strict liability, which exists, and all of these add-ons that do not and should not exist, in my opinion.
Your question is how should we get after these ships and what should we do? The ship has been personified in law for centuries. The ship is the money-making machine. If you go after a vessel, you hit hard the people who make money with this vessel.
What did you do in this bill? It is almost embarrassing. You said that we do not have to prove who polluted. If oil comes out of the ship, the chief engineer and master will be assumed or presumed to not have taken all necessary steps to prevent that. Therefore, this is not strict liability; this is reverse onus. Now you cannot remain silent. They do not know who did it. The oil came out of the ship; the chief engineer might have been sound asleep in the middle of the night and had nothing to do with it, but he has to get a lawyer and prove what he did to try to prevent this, even though he may not know why it happened.
Again, there is no problem with strict liability for the moment, unless the Supreme Court decides otherwise one day. Our problem is the add-ons, the reverse onus that going beyond the strict liability was to facilitate.
By the way, if you read former Chief Justice Laskin's speech in Sault Ste. Marie in 1978, he says that these are public welfare offences mostly incurring small fines; therefore, strict liability makes sense. That was his logic in those days. Now we are talking about fines that are $6 million and $12 million per day. Chief Justice Laskin, who is no longer with us, would not have considered this in the same light as he considered that small fine back in 1978. Everything has gone up in cost, and this has gone up exponentially.
My point is strict liability, yes, but not the add-on of taking defences away, reducing the Crown's obligation even to prove that the pollution took effect, allowing the chief engineer and the captain to be found guilty because they do not know why the vessel polluted. Nobody knows who did it; maybe it was an accident, etcetera. It does not have to be intentional. The oil just came out of the ship, therefore they have the obligation of proving that they did everything to avoid it, etcetera.
This is going well beyond what is required. What really should happen is to go after the ship, and then you are going after the real —
Senator Banks: With the exemption of the removal of due diligence as a defence, what you described existed already in BillC-15.
Mr.O'Connor: BillC-15 was a piece of legislation that we obviously opposed, and some of this was in BillC-15. What was not in that bill was the administrative monetary penalties. People might tell you that this will be for small things, but the maximum penalty is $50,000. That is an important penalty, depending on who you are, and that did not exist at the time of BillC-15.
What else has happened is that the obligation on the chief engineer and master has been increased in BillC-16. It already existed, and we spoke out against it. We called it vicarious criminal liability, which means you are liable for someone else's act that you did not even do. That still exists.
Yes, it was a starting point there. It should never have been there, in my humble opinion, but it was there and it was passed by Parliament. We have to live with that, but why are we now adding on to it?
Senator Banks: Have you noticed a coincidence between the fact that Mr.Lahay referred to about the reduction in the number and severity of instances on the one hand, and the bringing into place of BillC-15 on the other?
Mr.O'Connor: I did notice that. It is the first time that I have heard that. I have no confirmation that there are less oiled birds. I think, in Newfoundland they say the contrary, but I have no figures to offer to you. I do not know that BillC-15 has had any effect in that measure.
Ms.Arsoniadis Stein: I have a comment to Senator Banks' question. Because of shipping's reputation as a global industry, it is in our best interests that these ``rogue'' polluters, if you will, are brought to book and are heavily dealt with. We believe that BillC-16, with penalties of $6 and $12 million a day, will get to the rogue operators. They are offshore, not here in Canada. As you said, they are not our companies.
What would be the situation, if I can paint a picture? The situation is you have a rogue vessel coming in, and it dumps. We are able to arrest that vessel and start charging it on a daily basis $6, $12, $18 million, and the numbers just keep escalating. You now have the attention of the rogue operators. They are now interested. Oh, my God, to release from this vessel with $100million of crude oil on it, I have to pay a $60 million fine. Now we have their attention.
To take a seafarer and jail the seafarer and hold him in court, that rogue owner will not be sending lawyers to defend this person. In fact, the monetary penalty is the one that will be observed and will be the deterrent, rather than having the seafarers bear the blame for this issue.
Senator Banks: I am sorry to take an additional moment, but I am not sure that it is possible for us to say whether the monetary penalties are the things that have deterred and resulted in lower incidences, as opposed to the possible criminal penalties.
I want to make a half-tongue-in-cheek observation that when we passed BillC-15, it was a Liberal bill, which was vehemently opposed by the government. That same party is now advocating this bill.
Senator Milne: Do you mean the Conservative Party at that time — the opposition, not the government?
Senator Banks: They are the government now. That is just fun, because it was good legislation.
Mr. Brown: I would like to complete the answer to the question, senator, if I may, because you raise a very important point. Why is there less pollution today than there was years ago?
I will admit, when I first went to sea, the standards were not what they should have been. That has changed on a worldwide basis and there have been many incidents that have highlighted it. Of course, last month we were reminded of the Exxon Valdez incident. It was all over the newspapers and a lot of people made good publicity on it.
The fact is that through international conventions, shipping has changed considerably since the days of the Exxon Valdez. Of the large tankers that float the world today keeping us alive, there are about 110 single-skin large tankers left; there are many hundreds of double-skins. The investments that shipowners, through legislation and voluntarily, have made in the last 25years are huge. It is partly because of pressure, but partly in recognition that the environmental standards had to change. The navigational systems on board ships today are far superior. You can hardly find anybody who can use a sextant on a ship today. On these ships, it is now all two or three GPSs, radars and every navigable aid known to man, and the guys on board are trained very well in how to use them.
That has been achieved by a combination of legislation, but it has also been by way of a huge improvement in operating standards, by and large, and in the construction of ships that has brought us to the point where we now have a much cleaner ocean than we had years ago. I do not think you can say that it is because of any one consideration.
Going back to your earlier question — and I am not sure if it was a question or an observation — in 2006, the Marine Environmental Protection Committee at the IMO did emphasize the importance of adequate reception facilities. They said that:
In the chain of implementation of the MARPOL convention, the policy of zero tolerance of illegal discharges from ships can only be effectively enforced when there are adequate reception facilities in ports.
That is chapter and verse. I think it is a very important part of the puzzle here, which you picked up on. It is not necessarily going directly after, or just after the polluters, but also as a nation that relies so heavily on international trade, that we do provide those reception facilities in our ports — and we have some way to go, sir.
Senator Milne: Captain Brown, when you were speaking to us earlier, you said that there is a danger of people losing their livelihoods and careers under this bill. How many people lost their livelihoods and careers under the previous bill, BillC-15?
Mr. Brown: I am not aware of any, because after BillC-15, the shipowners decided to sit tight. What has actually happened, senator, since BillC-15 came into law, as you will know, there has been continuous pressure on the Canadian government — both from ourselves here in Canada and from international bodies — to review BillC-15. There was the expectation that eventually BillC-15 would be reviewed and the more contentious clauses would be addressed.
What has happened now, and what has changed the situation is that BillC-16 is reinforcing, and in a sense topping up, BillC-15. The shipowners had a directors' meeting at the International Maritime Centre less than two weeks ago. They made it very clear that it will be difficult for them to stay, in particular since these penalties have been extended into the boardroom. You can imagine what might happen when every other international maritime centre that we are competing with hears about that. Out there are many highly professional ones, not just flags of convenience. One of the best known maritime centres is Copenhagen, Denmark. More than 13percent of the GDP of Denmark comes from the international maritime centre. They have many options and they have not withdrawn yet. They are watching these proceedings carefully. Certainly, the point was made strongly to me that ``We do not feel we can continue to promote our businesses in Vancouver if this is to be the direction of Canadian legislation.''
Senator Milne: The point I am attempting to make is that no one was charged under BillC-15. It has worked, apparently, from what we have heard, to reduce pollution in the water. Why do you think that anyone will be charged under BillC-16?
Mr. Brown: I would be happy to pass along a copy of this video to you. It has changed the whole outlook of the shipping industry in terms of what might happen to shipowners.
Senator Milne: Whose video do you refer to?
Mr. Brown: This is a professionally made video referring to the incident of the Hebei Spirit collision. That was a large ship at anchor off the coast of Korea in December of 2007. It was minding its own business, so to speak, when along came a crane barge in the company of three tugs. The three tugs lost control, the crane barge hit the ship, the ship lost oil and the captain and chief officer of the tanker have been detained in Korea ever since.
Senator Milne: You said that the fines are too large, and yet we have heard Ms.Arsoniadis Stein say that the fines are a good idea for rogue shippers. How can any government have two series of fines — one for the good guys and one for the rogue shippers? You cannot do that. It has to be a single standard for everyone.
Mr. Brown: I did not refer to the fines, I am sorry.
Senator Milne: I believe that you did. We will check the transcript, but I am sure you talked about fines.
Mr. Brown: By all means, yes.
Senator Milne: I am confused about precisely what you think we can do about these fines. I have heard witnesses before this committee on BillC-15 say that paying for environmental damage is considered a cost of doing business, but it comes at a great cost to Canada's environmental sustainability, let alone that of the world. What alternatives would you suggest in lieu of the enforcement penalties contained in the proposed legislation if you think that they are too strong?
Mr.O'Connor: I believe that my colleague did not speak to fines, but I think I did. The question from Senator Banks at the time was: What can we do? I said that one thing you can do is go after the ship, which is the money- making machine. I believe that Ms.Arsoniadis Stein said it in the same vein. None of us here at the table have said that we are against the fines. I do not think I have heard that tonight. In the sense that if you need a high fine, that is okay.
Our problem, within the Canadian Merchant Law Association, is the idea of having minimum fines. According to the bill, a ship or corporation can be fined minimum amounts. This is trying to force the hand of a judge if Parliament does not think the judge is doing his job correctly. In fact, we support a judge having the right to assign the proper fine to the proper crime. We have no problem with the high end of the fine; if a judge believes that $6million or $12 million is needed, then he should have that tool. We do not think that he should have his hand forced to levy a $0.5 million or $1 million fine without the authority to levy a lesser fine. However, there is a little clause that he would have to show that it would cause financial hardship and give the reasons that he is convinced of that, and not giving the minimum fines. We are not against fines but I do not think you have heard anyone here tonight say that the fines are too high.
Senator Milne: That is encouraging.
Ms.Arsoniadis Stein: The question was on recruitment of seafarers. In Canada, it is disappointing that we do not have a maritime industry. It would be difficult to pull statistics showing where this has affected Canadians.
Senator Milne: You say that we do not have a maritime industry and yet, all of you here this evening represent a Canadian maritime industry.
Ms.Arsoniadis Stein: Allow me to qualify my comment. We have a small marine industry that we wish to build. In the 1950s, Canada was a major maritime seafaring nation, but it is not that today. I believe that the Canadian fleet is comprised of 200flagged Canadian vessels. Some of the ships in the group that I represent do not even come in to Canada. We are saying: Let us build on this industry because the potential is extreme, especially when we have a trading nation rich in natural resources.
I briefly mentioned the Hong Kong Administration and the Republic of China and the paper that came in on the criminalization of seafarers. It suggested that, regionally, a number of reports emphasized the point that with the fear of being criminalized, young Asians are becoming reluctant to join the seafaring profession. This situation was also echoed by the EU Economic and Social Committee involved in recruitment and training of seafarers. I emphasize that this is criminalization where the right to be presumed innocent is in place.
Senator Milne: How about recruiting young Canadians?
Mr.Lahay: It is a small industry in this country, with a small Great Lakes industry and an East Coast industry. Marine Atlantic is the biggest employer there. As well, there is the Arctic, which has a somewhat seasonal service by Northern Transportation Limited.
On the West Coast, as Mr.Boucher has said, the demographics are such that we are facing a looming shortage. Senator St.Germain mentioned that it is difficult to know how a young person could know that criminalization would have an impact? In fact, they do know because in Canada most seafarers come up the ranks from the bottom, starting as a cook or a deckhand on a vessel and working their way up to able seaman and mate after a minimum of three years sea time, becoming eligible to write for a mate's ticket. Following that, they might consider writing for a captain's endorsement. There are varying licences for the different kinds of ships that you might be required to operate. Everybody is familiar with the landscape now.
There are many of my generation who do not want to become captain because it comes with a great deal of responsibility. Internationally, I met a Filipino captain who had been aboard a foreign flag ship for one year. I asked him why he was on board for so long. He said that for six months he was chief officer and then they promoted him to captain. He said he was a chief officer for 14 years. He has been chief officer on a ship, qualified to operate a ship for 13 of those 14 years, and yet he never took that step. He said he did not want to take the responsibility but now, with the global shortage of seafarers, he decided that it was time to step up to the plate.
The Philippine workforce is the largest labour supplier in the world, with about 1 million seafarers. Filipinos typically want to rise only to the level of second engineer. They have difficulty finding people to accept the responsibilities to fill the shortages. They are qualified people, but they do not want to accept promotion to those positions.
Senator Milne: Is that happening in other countries, other than Canada?
Mr.Lahay: It is absolutely happening in Canada. Canada is not the only jurisdiction that has aspects of criminalization, although some are less formal. Captain Brown was describing the case of the Hebei Spirit over in Korea and those sorts of things. These stories are spreading around like wildfire.
In fact, the International Maritime Organization is recognizing that governments who sit at the IMO — governments have the right to sit at the IMO — have recognized that there is a problem, so they have started something called the Guidelines on the Fair Treatment of Seafarers. I have spoken to senior Transport Canada officials and asked when we will be adopting the Guidelines on the Fair Treatment of Seafarers, which is designed to try to address this issue. This particular official said that they will not be adopting it. I said ``I reckon it is because of the Migratory Birds Convention Act,'' and he said that he would not go on record as agreeing with that.
I think these officials actually know there is a recruitment problem, and that it is both international and in Canada. We have young people who want to get into this industry. In Canada, it involves a good suite of jobs. Not all of our children will grow up and be professionals — stockbrokers, lawyers and judges. Some people will be looking to work in the transportation industry, such as driving trucks and trains and those sorts of things. We need to have educated, smart, competent and responsible persons to operate our vessels, but they say they do not want to accept that responsibility. When a tugboat goes out and the wind is blowing hard, things do happen. I believe young people would not think this last step to becoming the captain in order to replace the retiring captain or chief engineer is necessarily a vocation that is worth it.
Senator Milne: I had another question. I ask short questions, but I seem to get long answers.
The Deputy Chair: We do not have unlimited time, and this is very interesting, so perhaps we can focus the answers a little.
Ms.Arsoniadis Stein: I have a statistic for Senator Milne. According to the 2005 BIMCO ICS report, the world's merchant fleet faces shortages of about 10,000 qualified officers, growing to 27,000 in 2015. Further down, it says that those numbers are quite conservative, and expect them to be more significant.
Senator Milne: You would think that having 200 ships in Canada will absolutely increase those numbers.
Ms.Arsoniadis Stein: It is our hope and our wish that we actually begin to develop a marine industry for Canada. If we have the proper foundation in place whereby we can do that — Captain Brown talked about the International Maritime Centre; he is a director of the IMC — we are working with Transport Canada and Foreign Affairs to see what we can develop for Canada and to bring this industry to Canada.
Mr. Brown: Canadian shipowners actually actively want to expand the proportion of the world fleet. The Canadian flag fleet is about 0.1 of 1percent of the world fleet at the moment. The big problem is that, in order to renew their fleet, they have to import ships at a 25percent surcharge. When you build a ship overseas, you bring it to Canada and put it under the Canadian flag. This is not tenable. There is a real break on renewing the Canadian fleet.
Senator Spivak: Thank you. I think you have made your major case to be the fact that criminalization would prevent recruitment, but I think you have also been quite persuasive in talking about the fact that monetary penalties would probably serve the cause of deterrence, which I assume this is about, as perhaps being better than incarceration for individuals. That is your case.
There are a couple of questions I want to ask, though. First, it seems to me that it is very difficult to prove a situation beyond a reasonable doubt in cases of the discharge of bilge water, or whatever. Could you address that question from the other side? How difficult is it to prove that? It seems to me that it would be very difficult.
The case that you make for less pollution is less convincing because it costs this country billions of dollars for exotic species. Just look at the Great Lakes and what might be coming from bilge oil. Therefore, you must have a balance. You cannot allow that situation to continue or we are in real trouble.
I am not sure that I buy your argument that the seas are less polluted. That is not the kind of information that comes to us from the other side. However, I would like to comment on the difficulty of proof and to comment some more about these reception centres. Perhaps we ought to be pressuring the powers that be to enhance these centres because maybe that would stop some of it, if you had the proper enhancement centres. Those are my two questions.
Mr.O'Connor: The question I would speak to deals with the evidence. As a practising attorney, I have had occasion to argue many pollution cases, I believe over 50. I would say that we are not opposing the strict liability provisions; we are opposing the additions to strict liability.
Senator Spivak: I understand.
Mr.O'Connor: The strict liability provisions that exist right now say that if oil comes out of a ship, regardless of why, regardless of from where and regardless of by whom, the ship is guilty of pollution.
Senator Spivak: You support that?
Mr.O'Connor: We support that. That is not in this bill. That is not in BillC-15 or BillC-16 only. That is in the Canada Shipping Act. That is how MARPOL is designed, the international convention that we supported, and still support.
The idea is, with regard to evidence beyond a reasonable doubt, it is simply because this is criminal law, and in criminal law that is the level of evidence that every criminal judge expects to apply. How do they do so? They do so by photographing, sometimes hearing witnesses, over flights, MARSAT, samples, sightings or fishermen. There are different ways of proving it, and there are pollutions that no one sees, and therefore there is no prosecution. If that were true, this bill would not affect that.
The level of evidence that exists and the tools the Crown has now are exactly like every other offence in this country, and they seem to be working. I have heard mostly criticism by politicians that the fines have not been high enough. It is not that they have not been able to prove the pollution; they prove it, but the judge does not fine high enough. In reality, however, fines have been going up exponentially over the last few years.
Today, a pollution event would garner a fine of hundreds of thousands of dollars, which is probably not enough if the Senate wants to have millions of dollars. It has continually been going up, but in my mind the level of proof has not been criticized.
Senator Spivak: I want to zero in on this point. Are you suggesting, then, that what is wrong with BillC-16 is, as you call it, the add-ons and the criminal incarceration, whereas the other things are fine? If we were to address our minds to looking at this and, God forbid, amending it —
Mr.O'Connor: That is exactly right. You do not need to go back and reinvent the wheel. We are not asking you to do that. We are asking you to simply let the wheel turn as it does with the other legislation.
The problem is that Environment Canada is new to the marine world. They are new in the sense that it is only with BillC-15 that they have become involved. How many prosecutions have appeared under BillC-15? Environment Canada has made a protocol with Transport Canada.
Senator Spivak: Right. However, I wanted to say that our objective here, of course, is not to dilute the deterrent; we want that deterrent to be very high. If we have a high enough deterrent, maybe the prosecutions will go down.
What about the aspect of the reception centres?
Mr. Brown: There were two parts to the question. You were asking about the reception centres for oily waste or any other discharge, and the other thing you referred to was invasive species.
Senator Spivak: They are tied, are they not?
Mr. Brown: Invasive species is largely tied up with the Ballast Water Convention, and we would be happy for Canada to ratify the Ballast Water Convention. What happens now is largely voluntary in terms of ships exchanging ballast before they come into Canadian ports.
Senator Spivak: Has Canada not ratified that convention?
Mr. Brown: Not yet. There is a lot of voluntary practice under way at the moment, and port state control inspectors, when ships come into Canadian ports, do check ballast water exchange. They check the specific gravity of the ballast in the tanks to ensure that it is pure sea water as opposed to something that came on board in a foreign harbour.
On the second issue, as far as reception facilities are concerned, it is a fact. Say, for example, that a ship is discharging their dirty cargo in a port such as Vancouver and wants to load a relatively clean cargo. That ship would need to go outside, offshore, to discharge those hold washings because there are no reception facilities for such things in Vancouver. The IMO envisages a network of reception facilities worldwide for any ship. Whether it is sludge or hold washings that need to be discharged, it does not matter. Whatever it happens to be, there should be a standard, and all major ports would be in a position to receive those waste products. As the IMO says, if you really want to set a zero tolerance bar, then the two go hand in hand.
Senator Spivak: Do you have a cost estimate?
Mr. Brown: Of the cost of establishing a waste reception? No, I have never been through the exercise, but many ports do have those facilities, and it is really a public duty of ports, in a sense, in my opinion, to provide those facilities.
Ms.Arsoniadis Stein: If I may add briefly, when BillC-15 was at issue in 2005, our group made a presentation on that bill, and we opposed criminal sanction without the right to be presumed innocent. We are here again because we are hoping senators can review it again, given that we have now an enforcement act coming into play. We are not opposing BillC-16, and we are not opposing the significant fines it is bringing about. We are saying that we think this is a good enforcement tool that can, we hope, allow the senators to say, ``We can put the presumption of innocence back into criminal sanction. We can allow for it instead of obliterating it.'' That is our request.
The Deputy Chair: We have thirty minutes left in our meeting, and we need 15 minutes after these witnesses have left to do the rest of our work. Please be cognizant of that.
Senator Campbell: Can you tell me, before BillC-15, how many shipping companies set up in Canada per year?
Ms.Arsoniadis Stein: Perhaps Captain Brown, who is on the IMC board, can help. A clutch of owners came to Canada prior to BillC-15. There was a trend where they made some improvements to an income tax act and it attracted a good clutch of players. I am aware of two Japanese companies that were waiting to see what would happen with BillC-15 before they came to Canada. On June28, 2005, when BillC-15 was made law, these two Japanese companies went to Japan.
I can also say that it has been highly advertised, for lack of a better phrase, that Canada's jurisdiction is one that has criminal sanctions without the right to be presumed innocent in place, and it has gone through PNI clubs, circulars, announcements, statements from London, Hong Kong, Denmark, the European Union, and we are not aware of any other company that has came to Canada.
Mr. Brown: About 15 companies came to Canada prior to BillC-15.
Mr.O'Connor: Do not forget that the companies coming prior to BillC-15 could only have come during a window. BillC-15 was in 2005, and the window was open when they made the international shipping legislation with regard to income tax. The window was very short. It is not as if it was over 50 years. It was just a few years.
Senator Campbell: I have a comment to make. I do not actually sit on this committee, so I will not be participating in the clause-by-clauseconsideration. I have read all the documents here. It would seem to me that as soon as we mention oily birds or environment, our sense of fairness goes out the window. A thousand guilty go free before a single person is imprisoned, I would remind everyone. For some reason, for this bill, we seem to forget that.
This is reverse onus. I hate reserves onus. It takes away the rights of citizens. I will put my money with anyone who wants to take me on that this legislation will be overturned constitutionally. I think it is a bad bill.
Senator Neufeld: Just to help Senator Campbell a bit, this legislation was passed by all parties in the other place.
Senator Campbell: I do not care. I do not believe it is any better of a bill for that.
Senator Neufeld: I listened to you, and I am responding to what you said. The bill we are discussing right now does not change anything in the nine acts other than to increase the fines and put that structure in place. In fact, I asked the minister that, and he agreed with me, so we are not changing any of the nine acts that this legislation affects, and which you folks work under.
I was interested in Mr. Brown's comment that there are lots of gangs in Vancouver. I am from British Columbia, but not from Vancouver, and there are others here from Vancouver. You stated that there are lots of gangs in Vancouver because government has to prove beyond a reasonable doubt, and then you say that should not happen in the shipping industry. I am getting a little bit of a cross message here. On the one hand, you say that if we had different laws to deal with some of these gangs, maybe we could clean them up a bit but, on the other hand, you do not want those same laws in this instance. Maybe I misunderstood, but can you explain what you meant?
Mr. Brown: I am a simple seaman, and I will respond to you in a simple seaman's terms, if I may. It is unfortunate that we have this situation in Vancouver. It is unfortunate that the requirement to prove beyond a reasonable doubt is the reason that we have these characters on our streets. At the same time, what we are arguing for, and I think we argued at length here this evening, senator, is that there is an international convention. If you are part of an international framework, such as Canada is of the United Nations and all its subsidiaries, then we must be consistent and we must support the principles of that legislation. We are a founding member. I submit that, from our perspective, we cannot pick and choose which of those conventions of the United Nations we honour strictly and abide by, and which of those we do not.
The difficulty we have with BillC-15, and now BillC-16, is that real difficulty of reconciling the international standard with the standard that Canada is contemplating imposing with BillC-16. What we are saying about imprisonment, and I think what I said in my testimony this evening is that if imprisonment is contemplated, then guilt should be proven beyond a reasonable doubt. If imprisonment is contemplated, there should not be this reliance on reverse onus. I think that is what I said earlier, if that clarifies my position.
Senator Neufeld: Mr.Boucher, you mentioned difficulty in recruiting seafarers. You stressed that probably the criminalization — and a few others have said this — is one of the big reasons you cannot hire seafarers out of Canada. Do you have statistics to show that? Were there many young people who wanted to go on ships around the world in Vancouver applying for jobs prior to BillC-15? Is there that same difficulty in other countries? In Europe, I am assuming they do not have these same laws, so they must have lots of young people hurrying to get on these ships, or I would assume that from the way you presented your case.
I would like to know how easy it is to hire in other countries as compared to Canada. I can speak from the West Coast viewpoint; I live in British Columbia. We went through a time in Canada when you could not hire anybody for anything because the economy was so hot. The economy was hot in Alberta. People were coming from regions in Eastern Canada by the planeloads to work in Alberta, and it was much the same in British Columbia. Does that play a part? These people could perhaps stay a little closer to home rather than having to leave for a long time. Some of those things do play into this scenario. I would like you to explain that.
Mr.Boucher: You are exactly right. Being away from home on long hauls does not play a little part; it plays a huge part. There are all kinds of alternatives for the hard-working, bright, young, potential blue collar workers who will enter the marine industry market. You are right that when the economy was white hot, nobody could be found for anything. The problem with recruiting seafarers is no better in the EU or any other area. As I stated, it is an international problem to recruit seafarers right now, and one of the reasons is the many attractive alternatives that have been available, especially when the economy was better than it is now.
Our point is that we need to turn it around, to make seafaring a better opportunity, especially here in Canada. As my friends pointed out, the seafaring industry in this country is small compared to other countries. However, it is nonetheless important, as Mr.Lahay pointed out. Between ports in Canada, the Canadian ships must carry the cargo, and it must be a Canadian crew and a Canadian ship. It is extremely important, and why we need to focus on the recruitment, because these need to be Canadians. It was not that long ago that the number of applicants for jobs on Canadian ships far exceeded the capacity for Canadian employers to employ any of them.
One of the areas we represent is the officers of the Canadian Coast Guard, which has amalgamated with the Department of Fisheries and Oceans' former fleet, and they have the Canadian Coast Guard college in Sydney. It used to have far more applicants than they could ever put through the Coast Guard college to become officers in the Canadian Coast Guard, but now they do not have as many applicants as they do seats for the positions.
This is not just related to BillC-15 or environmental legislation. We do not try to pretend that it is, or to the potential BillC-16 or just the criminalization of seafarers, but it is one of the factors, and it is an important factor. The officers employed on all those buoy tenders, icebreakers, fisheries patrol vessels and throughout the Canadian Coast Guard fleet, as well as ships in commercial industry that do the resupply in the Arctic; all the ships that are carrying refined petroleum products in Canada; on the lakes, carrying the grain from the Great Lakes out to the export facilities on the gulf or on the coast; the tugboats that are assisting the cruise ships that come alongside in these ports and help the container ships come in, and so forth, and all the marine pilots — they are all Canadian seafarers and are required to be. As much as it is not a big industry, compared to the international scene, it is essential, important and vital. It takes away very much from it being an attractive career choice nowadays for the spectre of criminalization to be added into the mix as an additional disincentive.
You have heard my friends speak about the disincentives. Being away is an obvious one, as well as some of the other downsides of the seafaring industry, so the guild and the ITF and a number of the players here have a number of exciting HR initiatives under way and are getting assistance from the federal government with a number of those. However, our point was that the criminalization of seafarers is a real deterrent.
Senator Neufeld: I would glean from that answer, then, that the criminalization is not such a big part in not being able to hire seafarers. I am speaking about Western Canada from 2005 forward, when BillC-15 came into effect. The economy was red hot in British Columbia, and I know that for a fact. In Western Canada, it certainly was, and long before that, it was red hot. There are other things that I think are probably affecting those kinds of issues. If you have statistics that you could send to me, I would appreciate it. If not, that is fine.
Ms.Arsoniadis Stein: I have a small comment for Senator Neufeld, and this follows from Captain Brown's comment about the gangs. One of the leading cases on this issue is R. v. Ellis Don, and it is in the context of the protection of workers' health and safety in the workplace. Justice Galligan stated the following:
It is a commonplace that it is unacceptable for someone to be convicted of an offence where there is a reasonable doubt about guilt. The constitutional issue is thus whether the statutory objective, significantly important as it is, justifies the imposition of that unsatisfactory situation. I am seriously troubled about how it could be said that the objective of this Act . . .
That refers, again, to health and safety in the workplace. The quotation continues:
...is so pressingly important that a risk should being taken of convicting someone who might be innocent.... I am unable to say that it is more important than protecting innocent citizens from homicide. Yet the law does not permit the conviction of a person charged with murder if the court has a doubt about his guilt.
Senator Adams: I am familiar with BillC-15, which came out of our committee. The chairman was Senator Banks. At that time, we had a little difficulty with passing that bill, especially with enforcement officers. BillC-15 was the Migratory Birds Convention Act. At that time, before BillC-15 was passed, we could not find any experts on the oil spills or discharges in relation to Transport Canada, Environment Canada or the Coast Guard. At that time, the government department told us they could not find anybody. They were intending to use game officers to enforce the law for anything that was discharged from the ships.
In the meantime, the bill was pushed more by animal rights activists at that time when BillC-15 was coming out. They were pushing it.
Especially living up in the Arctic, I have seen a lot of the ships that have been operating in the community, especially oil tankers. We do not have any harbours to be able to fill the tanks, and so forth, and they have to run the hoses up a quarter of a mile over top of the water in order to pipe the fuel.
Last year, at Rankin Inlet, there was an oil tanker and it was late, with the ice freezing, and the sea. They started off by bringing a hose or a line up to the boat, a 250-horsepower boat, and it went straight through the ice and it could not go anymore, and they ended up using skidoos to try to drag the hose up to the lines. I watched; I think they did a good job. I could not figure why the government would be putting in an extra fine, up to $12 million a day. That is a lot of money for a fine.
We do not have any records, since BillC-15 was passed, of how much damage has been done as a result of the oil spills and how many birds have been killed. The animal rights activists tell us that around 300,000 birds are killed every year. I asked how they were able to find 300,000 dead birds in the sea and whether they had a ship. They said that they find the birds on the shore. That is the kind of information we heard.
I am concerned with shipping in the Arctic. We have a navigation fee. Beyond Frobisher Bay, the government starts charging a navigation fee to pass through Frobisher Bay into Iqaluit. A couple of years ago, Transport Canada figured they would let it go for one year. Now, if this bill passes, they will charge that fee again.
Regarding shipping in the Arctic, how much more effective will it be for the future? We only have a sealift once a year. My insurance will go higher if my ship has an oil spill. Maybe later, I will need to buy more insurance. Will BillC-16 affect insurance for shipowners?
Mr.O'Connor: Does your question have to do with insurance?
Senator Adams: Yes.
Mr.O'Connor: In the marine world, liability insurance, including pollution, is covered by a type of insurance called P&I, protection and indemnity. It is an old-fashioned term. There are companies that do insure, but this is insuring for damage caused. It is not insuring for fines; it is insuring for damage caused, in other words, clean-up that actually happens. If the ship gets into an accident and there is a spill, there is a regime in existence. Canada is a part of that regime. It starts with the shipowner and his P&I club, who pay the first tier. Then, if it is a big deal, it goes to the second tier, which is the international fund. We have a bill before Parliament now, BillC-7, which is now before the Senate. We are agreeing to join the supplementary fund, which adds another tier of compensation on top of that, and the total adds up to $1.5 billion Canadian of compensation capacity. This is not for fines; this is for actual clean-up.
Senator Adams: We have had quite a bit of mining exploration in the last two years in Rankin. We have barges frozen over in the sea. In the wintertime, the tankers go up to the mining camps. We are not allowed to operate shipping in the summer to the mining camp. Even for winter roads, you have to have a permit and make sure you do not spill oil travelling up to the mining camps.
The last two years, there was one million litres in a tanker sitting in the sea, and they pump it out in the wintertime. Now it is empty and they have to wait for the next ice to go out. A tugboat will come along and take them out to where they came from.
I have been up there for many years and I have not seen much damage in the Arctic.
Mr.Lahay: Senator, I think that is a tribute to the good workers and good seamanship up there, because what you are describing are the sorts of risks that seafarers take in all kinds of different operations, as I was trying to illustrate earlier. As an organization that represents workers, we appreciate those comments. We thank you for that.
Senator Manning: I would like to get into the discussion on recruitment, but time is of the essence. My home is in a small fishing community on the south coast of Newfoundland and Labrador, in Placentia Bay. The bay has 365 islands and has fog 200 days of the year. In the Bradner Smith report of 1990, which I am sure you are familiar with, it was deemed to be the most likely place in Canada for an oil spill. I walked on the beaches with the oily birds. I have been involved in the clean-ups, and it is a disturbing sight.
My question has to do with the fact that if you are not caught, it does not matter what the fines or rules are. Certainly, the feedback I have received over the years from people in my area and province is that those who are caught are given the full extent of the law, to teach a lesson, as with any breach of the law.
In the small community in which I live, whether there are two crew members on a fishing boat or ten, the person who is the boss is the captain. If he is not responsible for what happens at sea with regard to cleaning of the bilges, then who is?
Ms.Arsoniadis Stein: We do not disagree with what you are saying. You are absolutely correct. If the captain is guilty, then we are not opposing criminal sanction; what we are saying is that it should be proven beyond a reasonable doubt.
I think the concern for parliamentarians is whether there is enough teeth in the legislation. What we are trying to put forwardis that BillC-16 has tremendous teeth. The acts named in BillC-16, the parent acts, if you will, we are asking that where the presumption of innocence is displaced, we actually can now put it back because of the teeth that have come through BillC-16.
I have an example. I do not know if you are aware of the Lake Wabamun spill. We do not dispute that this was an absolute disaster. Eight hundred thousand litres of heavy fuel oil entered the lake, damaging the habitat that was there, an ecological habitat site. BillC-15 is in place at this time. This matter went to court and the government ruled, and I have information on how the fines came out. There was no criminal sanction used. Why were we not using criminal sanctions? I am not saying that we should, but BillC-15 provisions were not used.
CN agreed to pay $400,000 on the provincial charges and $1million on the federal charges. The company spent about $87million on the immediate clean-up and on attempts to limit and fix the environmental problems caused by the spill. It spent another $45 million settling claims made by residents, boat owners, the Paul Band and the village of Wabamun.
If they are not actually using criminal sanctions, we question the need for it. Now with BillC-16, the fines for CN, because we are dealing with an ecologically sensitive area, could have been potentially $12 million a day. If I am not mistaken, the spill was there for over 60 days. If we calculate 60 times $12 million, this puts a company into bankruptcy. Do we also need to be imposing criminal sanctions?
Mr.O'Connor: The question was that if it is not the captain who is liable for the bilges, who is it? On a fishing vessel, there is a good chance that the captain would be the owner or part owner. Go after the ship and you are going after the person who will have to pay that fine, whether it is through insurance or whatever. For the fine, it is the owner who is responsible if you go after the ship. You asked, ``If not the captain, then who should it be?'' It should be the ship. The way the legislation is enacted now, not only under BillC-15 but also under the Canada Shipping Act, or MARPOL, if the oil comes out of the ship, whether it is from the bilges, the cargo and so on, then the ship is liable.
The answer is to go after the ship and not to run after some individual, to try to give ourselves all the avenues by which we could make it easy to prosecute this guy, even if he has nothing to do the pollution. Go after the ship. You will have the same deterrent effect.
Senator Manning: That is a fair comment. As a senator, and in my home riding as an elected politician — especially where I live — over the years, I have had people tell me that something had be done to put teeth into the act.
As shipowners and as people responsible, if the common Joe or Mary out in the community asks you for two suggestions to nip this in the bud with regard to oily birds washing up on the shores, what would you say?
Mr.O'Connor: I would say ``enforcement.'' We are talking about large ships. Whether it is by the use of overflights, satellite, or whatever, they have been doing it. I would say, increase that. If you are thinking about rogues, if they think there is a chance of being caught, they will not come to Canada. Enforcement is number one.
Increasing fines is second. If they know they will be facing a huge fine per day, that is the deterrence you need. It is not a question of trying to find some guy on board the vessel who has no money and cannot afford a lawyer, and now we are taking his rights away. We should be going after the ship.
Ms.Arsoniadis Stein: During and after the hearings on BillC-15, we were in discussions with the World Wildlife Fund. We told them, ``Raise the million dollar fine. Go after the pocket book.'' They said to us, ``Had you come up with one suggestion during BillC-15 instead of your shopping list of issues — game officers and the rest of it — we might have considered it.'' Working with Transport Canada, they said, ``Why not raise the fines and give back the presumption of innocence?'' We now have BillC-16 raising the fines, but no one is restoring the presumption of innocence.
Mr. Brown: A third suggestion, senator, is that we go back to the reception facilities.
Senator St.Germain: During the hearings, Minister Prentice was here. In a question from Senator Banks about seeing bogeymen under the bed, the minister responded:
Absolutely nothing in this bill contradicts the UNCLOS. We have to accept that it is a matter of reliable practice that prosecutors and the prosecutorial arm of the Government of Canada would not seek imprisonment if it were a violation of international law to do so. That is a fundamental aspect of this legislation. The Attorney General would clearly exercise his discretion to ensure that they did not violate international law.
With regard to international law, that was what the minister stated. The minister, like Mr.O'Connor here, is a lawyer. I leave that to you. They can respond by letter.
The Deputy Chair: Would you like to respond?
Mr.O'Connor: At the same sitting, Mr.Woodworth, who was here earlier — and he is not the minister but he has been involved with this bill — said, in what you call the blues:
. . .the Government of Canada will not offend any international convention to which it is a party and, therefore, instructs its prosecutors that where seeking a prison sentence would offend the UN Convention on the Law of the Sea, no prison sentence will be sought.
His statement was that on the face of the bill it offends, but the policy is that we do not offend.
Senator St.Germain: The fact is that this is the minister and he has the final say on this, Mr.O'Connor. There is obviously a contradiction there.
Mr.O'Connor: It is obviously in contradiction to the UNCLOS. It is clearly obvious. I understand there is a policy that they will not do it. What we are saying is: ``Just say so in the act.'' Full stop.
Ms.Arsoniadis Stein: Statute cannot be saved under prosecutorial discretion. Statute must survive on its own merit. Policy can be changed at any given moment. More important, we would like the law to apply equally to our local industry as to our international industry. If the legislative intent is not to seek imprisonment if it were a violation of international law to do so, then that intent should be codified by law.
The Deputy Chair: Thank you very much to our witnesses. That was a spirited defence of your positions. We appreciate very much your input.
Senators, we will suspend the sitting for two minutes and then return, because we have some work to do if you agree to do it.
(The committee continued in camera.)
(The committee resumed in public)
The Deputy Chair: The committee has agreed that we will proceed to clause-by-clauseconsideration of BillC-16, An Act to amend certain Acts that relate to the environment and to enact provisions respecting the enforcement of certain Acts that relate to the environment.
Senator Banks: Just to be technical, chair, do you have that agreement?
The Deputy Chair: Honourable senator, do I have your agreement? All in favour?
Hon. Senators: Agreed.
The Deputy Chair: Is it agreed that the clauses be grouped according to parts of the bill for the purpose of clause-by- clauseconsideration?
Hon. Senators: Agreed.
The Deputy Chair: Carried. Shall the title stand postponed?
Hon. Senators: Agreed.
The Deputy Chair: Carried. Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Deputy Chair: Carried. Shall clause1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Deputy Chair: Carried. Shall clauses 2 to 19 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried. Shall clauses 20 to 28 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried. Shall clauses 29 to 40 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried. Shall clauses 41 to 51 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried. Shall clauses 52 to 88 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried. Shall clauses 89 to 93 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried. Shall clauses 94 to 107 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried. Shall clauses 108 to 115 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried. Shall clauses 116 to 125 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried. Shall clause 126 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried. Shall clause 127 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried. Shall clause 128 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried. Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried. Shall the preamble carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall the title carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall the bill carry?
Some Hon. Senators: Agreed.
Senator Spivak: On division, Mr. Chair.
The Deputy Chair: Does the committee wish to consider appending observations to the report?
Hon. Senators: Yes.
The Deputy Chair: Is it agreed that I report this bill to the Senate?
Senator Banks: Unamended, and with observations.
The Deputy Chair: Unamended, and with observations?
Hon. Senators: Agreed.
The Deputy Chair: Carried. Thank you very much.
Senator Banks: I move that the chair and deputy chair be empowered to write the observations to be attached to the committee report.
The Deputy Chair: Is it agreed?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
(The committee adjourned.)