Proceedings of the Standing Senate Committee on
Fisheries and Oceans
Issue 14 - Evidence - February 28, 2013
OTTAWA, Thursday, February 28, 2013
The Standing Senate Committee on Fisheries and Oceans, to which was referred Bill S-13, An Act to amend the Coastal Fisheries Protection Act, met this day at 8:45 a.m. to give consideration to the bill.
Senator Fabian Manning (Chair) in the chair.
[English]
The Chair: I am pleased to welcome you to this meeting of the Standing Senate Committee on Fisheries and Oceans. My name is Fabian Manning, a senator from Newfoundland and Labrador, and I am chair of this committee.
I would ask members of the committee to introduce themselves.
Senator Wells: Senator Wells, from Newfoundland and Labrador.
Senator Poirier: Rose-May Poirier, from New Brunswick.
Senator McInnis: Tom McInnis, from Nova Scotia.
Senator Hubley: Elizabeth Hubley, from P.E.I.
The Chair: Other senators should join us shortly. With the weather this morning, things are a bit slower.
The committee is continuing its study of Bill S-13, An Act to amend the Coastal Fisheries Protection Act, and is pleased to welcome the West Coast Co-chair of the Fisheries Committee of the Canadian Maritime Law Association.
On behalf of the members of the committee, I thank you, Mr. Caldwell, for being with us here today. I understand you have some opening remarks, after which we will have questions from senators. Please proceed, sir.
Brad Caldwell, West Coast Co-Chair, Fisheries Committee, Canadian Maritime Law Association: Thank you for inviting the Canadian Maritime Law Association to discuss Bill S-13 today.
I have a short three-page written paper; and I believe all of you have copies. It is divided into three parts. In the first part, I will introduce the Canadian Maritime Law Association. The second part, and probably more important one, is where we essentially give the bill an endorsement. In the third part, we propose one area where the bill could be improved. Our endorsement of the bill is not dependent upon this suggested improvement.
I am wondering about my time frame today. I do not know if I will be able to address the third part as well within the five minutes.
The Chair: You can start the process, and maybe summarize or deal with it as best you can. We would like to get to the questions, but certainly we would like to hear from you. Usually we derive some information when we get to the question and answer period.
Two more senators have joined us.
Senator Harb: Mac Harb, from Ontario.
Senator MacDonald: Michael MacDonald, from Nova Scotia.
The Chair: The floor is yours, Mr. Caldwell.
Mr. Caldwell: The Canadian Maritime Law Association is an organization consisting of both practicing maritime lawyers as well as a number of companies involved in the Maritime industry. There is a list of them in the paper. You can see that it is a fairly broad spectrum. With respect to this bill, probably the ones at the end of the list are the most significant: The Canadian Ship Owners Association; the Chamber of Shipping of British Columbia; and the Shipping Federation of Canada. I point those out because those three organizations deal with shipping, and there is the possibility of container ships being impacted by the bill.
The CMLA originated more from an international law perspective. An organization called the Comité Maritime International is an international body that looks at promoting maritime law on an international basis. This is a kind of arm in each country that supports the CMI. In Canada, that arm is the CMLA. We also look at domestic maritime laws, and uniformity is one of our goals. It is a good organization to look at this bill because it will basically implement an international treaty that promotes uniform law.
We have been monitoring this initiative against illegal, unreported and unregulated, IUU, fishing for a long time. As the CMLA representative of the Fisheries Committee, I have attended two conference call meetings with the Department of Fisheries and Oceans involving the Port State Measures Agreement and the implementation of it. It is also significant that two of our constituent members, the B.C. Chamber of Shipping and the Shipping Federation of Canada, also attended one of those meetings. People have been monitoring Bill S-13 and are aware of what has been happening. The Fisheries Committee has reported to the executive of the CMLA about seven times. We have been telling our people about what has been happening with this bill. Throughout that time, we have not received any adverse comments from our members about the bill. It does not seem that people are likely to oppose it at this stage.
The CMLA agrees with the philosophy of the Port State Measures Agreement, which we understand to be that since some countries do not effectively control their fishing vessels, it is necessary for states where fish are landed, including Canada, to play a significant role in controlling IUU fishing. We agree with that philosophy. As you can see, in the middle of page two of my paper, I have put it in bold. The CMLA is strongly in support of DFO's initiative to curb IUU fishing through the implementation of this bill. Although we strongly support it, there is one area where we feel there could be some modest room for improvement.
I am glad to see that the senator from my province is here. I am happy to see a Pacific presence in the room.
This bill is probably more important from an East Coast perspective because more IUU fishing occurs there than off the west coast.
A suggested modest improvement to the bill involves the proposed change to section 13 of the Coastal Fisheries Protection Act. Our proposal would be very similar to a change that was proposed by the Government of Canada to section 71(2) of the Fisheries Act back in 2007 when it tabled Bill C-32. This amendment should not be particularly contentious to the Government of Canada because they proposed a similar amendment to the Fisheries Act. However, the bill died on the Order Paper so the amendment never was implemented.
To get down to details, it is a bit of a technical matter. It involves the issue of re-delivery of a seized fishing vessel or goods after an arrest. Typically, when a fishing vessel is seized by the Government of Canada pending trial, if often takes one to two years to work its way through the courts. As well, the owner of the seized vessel cannot use it for that entire time and the crew is put out of work. Perhaps in the case of foreign vessels, the issue is not quite as important. Maybe we do not care if these people are put out of work. However, I think it needs to be dealt with because there is a presumption of innocence until proven guilty. If your livelihood is taken away from you while you are proving your innocence, it can be problematic.
The Fisheries Act and the Coastal Fisheries Protection Act have always had provisions whereby the owners of these vessels can post money to get the vessels released pending trial. Normally for the penalty that the Crown is seeking the owner would post a bond roughly similar to that. The problem with that provision in both the Fisheries Act and the Coastal Fisheries Protection Act is that it says that the court can allow the vessel to be released, but it also says that the minister, not the court, decides on the amount of security and the form of security. This particular provision has been criticized by the courts in R. v. McDonald. The Nova Scotia decision spoke somewhat critically of that provision. In my paper, I have referred to the fact that it is probably contrary to the Charter and the provisions of natural justice and procedural fairness. The basic concept is that if somebody is performing a judicial or a quasi-judicial function, that function should be performed by an impartial and independent person, such as a judge or administrative tribunal. In this case, it is not performed by an impartial person. It is performed by the minister. Basically, the prosecution is taking place in the minister's name, and it is the minister who is deciding that. Often, that effectively means that it is the fisheries officer who has conduct of the prosecution and is the one who is deciding upon the amount of security. It is not being done judicially.
I have referred to section 11(d) of the Charter. I will just read it out here for you. That is the section that says, ``Any person charged with an offence has the right to be presumed innocent until proven guilty according to the law in a fair and public hearing by an independent and impartial tribunal.'' That is the problem with it. The CMLA made submissions to the Department of Fisheries about this back in 2006, and they appear to have listened to us because, in 2007, when they tabled the amendments to the Fisheries Act, they did change that. They provided for what we call bail or release provisions for the amount and form of security to be determined by a court, as opposed to by the minister. On page 3 of my paper I have quoted section 88. That is from Bill C-32 of their proposed legislation, and if you look at the last line, which I have put in bold, it says, ``the form and amount satisfactory to the court or tribunal as the case may be.'' That is what the Department of Fisheries proposed back in 2007. In that case, there was a tribunal as part of that proposal. There is no tribunal in the Coastal Fisheries Protection Act, so you would have to change it slightly. You would have to delete the provision ``to a tribunal'' if you were going to suggest that amendment, but you could suggest something that very closely reflects what the Department of Fisheries had proposed for the Fisheries Act back in 2007.
In the Coastal Fisheries Protection Act, there is a requirement that the protection officer consent to the vessel being released, and I suggest that that be deleted as well because the protection officer is not an impartial, independent person. It should be the court that decides that. There is a similar provision in the Federal Courts Rules, which we maritime lawyers deal with a lot of the time. It happens very frequently, when a vessel is arrested, by a private party, for non-payment of a debt or a collision or something like that. Then, under the Federal Courts Rules, one can apply to the court to have the vessel released, pending trial, upon the posting of a bond, and that has always been done by the court. The provision that we are suggesting is sort of modeled after the Federal Courts rule that does the same thing.
That is a fairly minor improvement that, if the Senate felt inclined, they could suggest as an improvement to the legislation. Otherwise, we agree with the philosophy of the legislation. It is pretty hard to disagree with it. It is a good piece of legislation. There has been fairly thorough consultation, and the shipping interests that we represent do not seem to be concerned about it.
Those are my submissions, thank you.
The Chair: Thank you, Mr. Caldwell. We will go to our first question from our deputy chair, Senator Hubley.
Senator Hubley: Welcome, Mr. Caldwell, and thank you for your presentation.
I have a question on that last item that you presented that would have a court or administrative tribunal, instead of the minister, decide on the form and amount of security. Given that we have both an East Coast and a West Coast, do you see one administrative tribunal that would look after that issue or do you see two? If you do, do you see any problem with consistency?
Mr. Caldwell: Frankly, I think one could do it, but it would probably be better done by the courts simply because there is not a tribunal set up at the moment.
One thing that I meant to mention at the beginning is that I have a cabinet appointment to the Transportation Appeal Tribunal of Canada that I act on, although my comments today are not the TATC's. The Department of Transport has the Transportation Appeal Tribunal of Canada, which is an administrative tribunal. This is the type of tribunal that could do this quite well. In the last attempt to amend the Fisheries Act, the Department of Fisheries was going to set up a tribunal, which could have done this job quite nicely, but at the present time there is no tribunal under the rubric of the Fisheries Act that I am aware of. I think it would be too expensive to set one up. These things would not occur very frequently. Unless you could get some other tribunal to do it, it would probably be best just to let the provincial court do that.
Senator Hubley: I have one other question. It has to do with the information sharing networks that they are hoping to set up under this new Port State Measures Agreement. I am wondering whether the CMLA has any such sharing of information, between the organizations that you have listed for us, on countries or on shipping irregularities that are happening?
Mr. Caldwell: I think not.
Senator Hubley: Another quick question since there was a ``no'' to that. To date, 23 states have signed the agreement. How optimistic are you that this will proceed in the near future?
Mr. Caldwell: Well, I am hopeful that it will proceed, but I do not think I am really able to answer that question. I really just do not know.
Senator McInnis: These tribunals, of course, are expensive, depending on the quantum of seizures that you have. I agree that it is possible that there should be some form of application before a provincial court judge that would fall within that jurisdiction. However, one of the concerns probably would be: What about the seriousness of the crime, the repeat offenders and that type of thing? Has any thought gone into that in your discussions?
Mr. Caldwell: With respect to release or just in general?
Senator McInnis: No, just generally, for illegal fishing.
Mr. Caldwell: Well, if memory serves me correctly, there is something in the legislation that says the penalties can be higher for repeat offenders.
Senator McInnis: With respect to release.
Mr. Caldwell: With respect to release? Often, the Crown indicates what penalty they are seeking, and the penalty will be quite high if it is a second offence. They might even be seeking forfeiture of the entire vessel, and in that case probably the amount of bond for release would be equal to the value of the vessel. That is not uncommon in Federal Court.
Often the amount of money people are seeking is worth more than the amount of the vessel, but usually the limit is the value of the vessel. You get the vessel appraised, and often that will be the amount required to have it released from arrest.
Senator McInnis: Then there are punitive damages. What we heard here this week from one of the witnesses is that some of these vessels, in the transfer at sea to larger vessels, are owned by countries that are subsidized and would easily pay that amount. Is that enough? When you go to courts, my experience is that they err on the side of small as opposed to large in terms of bonds and the posting of security. That is part of the difficulty. I know they are expensive, but if you had a tribunal, I suspect it would be a quasi-judicial tribunal. You would have industry. It could even be an appointment from the Crown that would make a determination on the quantum and whether it should be released, depending on the number, the severity and so on.
Mr. Caldwell: I agree with you.
The one thing that your question just brought to my mind is that I was involved in a case once where the position of the Department of Fisheries was that they did not want the vessel released, and their primary concern was that the owner of the vessel would just go out and continue to repeat the offence. I suppose that could be a concern as well, so perhaps for a second offender maybe you could prohibit the release of the vessel if they have demonstrated that they are not going to be deterred from continuing to commit the offence. I had not thought of it until you mentioned it, but that might be a consideration.
Senator McInnis: It is never easy. It really is not. However, some of these countries are less than honest. That is part of the difficulty.
Mr. Caldwell: It is a good point.
Senator Wells: Thank you, Mr. Caldwell, for your comments thus far. I will preamble my question with a comment.
With the greater technology we have today, such as vessel monitoring systems that most ships must have, especially if they operate under an RFMO regime, GPS satellite tracking, high-tech equipment on patrol vessels and the planes that regularly fly over the fishing areas, coupled with the law that grants the minister unfettered discretion over fisheries activities, having the minister hold the discretion of providing access to the vessel to fish I think would support the current law of the minister's unfettered discretion over fisheries activities in licensing and quota management. If we have vessels that are suspected of IUU fishing activities, very likely the Department of Justice or DFO, which collects the evidence, would have a pretty good idea based on the GPS and the tracking and the other methods that the government has at hand. It is not that it would pre-judge their guilt or innocence, but it would be a question of continuing to grant them fishing rights. How would that play if you had a tribunal? Would that not trump the minister's unfettered discretion over fishing activities, which is held in law?
Mr. Caldwell: With respect to IUU fishing, most of this fishing is occurring on the high seas, so it is not being done pursuant to any licence being granted by the Minister of Fisheries. Your question is more directed to Canadian fishing vessels, is it? Have I misunderstood?
Senator Wells: It would be vessels either operating under RFMOs or within the long hand of our reach, which obviously could be outside RMFOs as well.
Mr. Caldwell: By definition, IUU is illegal and unregulated, which is the big one. ``Unregulated,'' by definition, is a vessel that is not licensed. A lot of these vessels are either licensed by Canada, if it is a Canadian fishing vessel, or one of these foreign fishing organizations. You probably know the name of it. They are licensed under NAFA to be able to be fishing. Those are not the vessels that are the target of this legislation. To my understanding, the vessels that are the target of this legislation are from other countries that are not members of these fishing organizations, and they are completely unregulated. I do not think the issue of the discretion of the Minister of Fisheries really comes up when it applies to those vessels, if I have understood your question.
Senator Wells: That is fair. The discretion of the minister would come up in the respect that the laws that the government enacts follow the policy of the government. The minister is an arm of that policy, as opposed to a tribunal which would be independent of policy. In that respect, my preference would be to keep it under the auspices of the minister's right versus a tribunal because combating IUU fishing activities is a government policy. For it to be continued to be supported by law, as the policy should be, keeping it under the minister's discretion I think would be a better way to go.
Mr. Caldwell: The point we were making in our submission is simply that in deciding the very narrow issue of whether the vessel could be released or not, that is a quasi-judicial function, not really a ministerial function, and subject to challenge. It has not been challenged to date, and it may not be, but probably it is just because no one has bothered because it takes a year and a half to challenge it, and you are finished in a year and a half.
Senator Wells: Mission accomplished.
Mr. Caldwell: It does not get done. The legislation is subject to abuse. There might be someone who in the end will end up being acquitted but will have lost the use of their vessel for a year and a half. There are people from the East Coast particularly who probably have fishing members in their families and are aware that some of these fisheries officers do get a bit overzealous at times in enforcing the provisions, and they are not always right. There is the chance for there to be some hardship that results, people who lose their ability to earn income through fishing. I think it comes up more in the domestic area than for the off-seas people or the high-seas fishing. There are provisions in the legislation to protect the innocent, and this is one of them. It is more of a judicial function. Under our law as it is today, I do not think it is appropriate that the minister be performing this quasi-judicial function.
Senator McInnis: Your point is well taken. The doctrine of innocent until proven guilty is a valid one.
You also point out that Fisheries and Oceans had this legislation doing what you are asking to be done, and it died on the Order Paper.
Mr. Caldwell: Correct.
Senator McInnis: That adds some credibility.
Mr. Caldwell: Yes. I know there is usually a lot of resistance to changing bills at this stage. In this case, since the Government of Canada had basically already endorsed this wording in its 2007 bill, I thought that this might be a situation where the government —
Senator McInnis: The Senate has final say, I am sorry, not the Commons.
Mr. Caldwell: My point simply was that it might be something that the —
Senator McInnis: I agree.
Senator Raine: Thank you very much for being here. I have learned a lot in a short time.
Could you explain how forfeiture works? I assume right now that if a boat is forfeited, if forfeiture has been declared, then what we are talking about does not apply. It says here they may order that anything seized and not forfeited be released. If it has been forfeited, how does that work?
Mr. Caldwell: I would have to look at that legislation, but normally the way it works under the Fisheries Act, which is what I am more familiar with, is that a vessel will be seized, usually at the scene of the offence, and then it will sit someplace for a year or year and a half until the matter goes to trial. If the person is found guilty, one of the sentencing provisions available to the court is to forfeit their fishing boat, to order it sold. It frankly does not happen very often, but it occasionally does happen. The vessel is then sold by public auction, or whatever, and the Crown receives the money.
That is a little bit strange. This situation does not very often happen before trial, but it does on occasion.
There was a case involving a well-known vessel on the East Coast that was seized on the high seas. I am trying to remember the name of it. It was a Supreme Court of Canada case where it was arrested first, or perhaps it was seized by DFO and it was also arrested in civil court. It was costing the Crown a huge amount of money to store it, so they agreed to have it sold prior to trial, I think through the civil procedure. There was a big issue as to whether the Crown took authority over the money or the civil person. It went to the Supreme Court of Canada and I cannot remember what the result was.
That was one of the few examples of a vessel forfeiture actually occurring before trial. Normally, it does not happen until after the trial occurs. In the more normal course of events, there would not be a forfeiture at the time someone is applying to post security, although there may be some unusual situation when that might happen. Does that clarify it?
Senator Raine: Not really. I am looking at this clause that talks about the court in the case of proceeding for an offence, et cetera, may order that anything that has been seized and that has not been forfeited —
Mr. Caldwell: I think that could stay in there, probably. It is not likely it would have been forfeited, but it is possible.
Senator Raine: Who would declare it forfeited?
Mr. Caldwell: The court.
Senator Poirier: Thank you for being here this morning and for your presentation. I just have one question, unless something follows from that one question. In your opinion, would this legislation affect the practice of law by lawyers such as when it would come to a situation for the arrest or seizure of a vessel?
Mr. Caldwell: Could you repeat that one more time?
Senator Poirier: In your opinion, would this legislation affect the practice of law by lawyers such as when they would come into a situation for the arrest or seizure of a vessel?
Mr. Caldwell: Are you talking about a civil arrest or seizure of a vessel?
Senator Poirier: Yes.
Mr. Caldwell: No, I do not think so. The practice has been set out.
I remember the name of that case I was talking about. It is called R. v. Ulybel Enterprises Ltd. It is a Supreme Court Canada case. In that case, they dealt with the procedure where a vessel is under seizure and arrested at the same time. There is a bit of a conflict of the criminal law and civil law, but that has been dealt with by the Supreme Court of Canada now, and I do not think this would change that.
Senator Poirier: Therefore, there is no wording in this legislation that you see that would be of any concern to the lawyers.
Mr. Caldwell: No, I do not think so.
With respect to my answer to Senator Raine's question as to it not already having been forfeited, when I think about that, I have a hard time thinking of any situation where it would be forfeited prior to trial. I wonder if that is something peculiar to the last bill that they proclaimed. It was a long bill, and there might be something in there I cannot remember where they allowed it to be sold prior to that. Therefore, I am not 100 per cent confident in my answer to Senator Raine's question.
The Chair: Thank you, Mr. Caldwell, for your time this morning. It certainly cleared up a few items for our committee. We will take your thoughts under consideration. Thank you once again for taking the time to be here.
Senators, we will now begin the process of doing clause-by-clause consideration of Bill S-13, An Act to amend the Coastal Fisheries Protection Act. Everyone should have a copy of the bill in front of them. It is not a long bill. It has 19 clauses. We will just go through as normal. I do not think there is any issue with the bill, from my understanding, after talking to everyone.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill S-13, An Act to amend the Coastal Fisheries Protection Act?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed? Agreed?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, stand postponed? Agreed?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 7 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 8 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 9 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 10 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 11 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 12 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 13 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 14 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 15 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 16 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 17 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 18 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 19 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill carry?
Hon. Senators: Agreed.
The Chair: Is it agreed that I report this bill to the Senate?
Hon. Senators: Agreed.
The Chair: Thank you very much, senators.
Just to give you an update, the lobster study, we hope, will be in the hands of committee members today along with the recommendations associated with that. We are planning on starting that process Tuesday evening. We will schedule a three-hour meeting for Tuesday evening and see how far we can get along with the lobster report. We will supply dinner on Tuesday evening. Hopefully it will be left there when we get out. Come prepared for that.
Bill S-13 will be going to the Senate this afternoon, hopefully. I will be presenting it to the Senate.
I will take the opportunity to wish the new member of our committee, Senator Wells, a happy fifty-first birthday. I was not aware of that when we started this morning. He is on the record now.
Senator Wells: Thank you very much, Mr. Chair.
(The committee adjourned.)