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

Issue 13 - Evidence - May 10, 2005


OTTAWA, Tuesday, May 10, 2005

The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C- 15, to amend the Migratory Birds Convention Act, 1994 and the Canadian Environmental Protection Act, 1999, met this day at 5:57 p.m. to give consideration to the bill.

Senator Tommy Banks (Chairman) in the chair.

[English]

The Chairman: Honourable senators, I call the meeting to order. Before we proceed with our witness, I would like to address two matters of business. First, you will have received a notice last week about a visit here by a Bangladesh parliamentary delegation whose responsibilities in their legislature approximate ours. No members of the committee were available to meet last Thursday when they were here. I have agreed to meet them and so we will be the guests of the High Commissioner to Bangladesh for lunch on Thursday, May 12, at noon in room 601. I would invite senators to advise the clerk of the committee of their availability to attend. We will be the guests of the High Commissioner to Bangladesh.

Second, I am advising against clause-by-clause consideration of Bill C-15 on Thursday because we will hear from the Department of Justice Canada and from the Minister of the Environment. The meeting will be two and one-half hours. I do not believe, on the basis of what we have been talking about, that following the appearance by Justice and Environment we could conclude clause-by-clause consideration of the bill. Unless there is a serious argument otherwise, I have devoted the entire meeting of one week from today for the purpose of clause-by-clause consideration of the bill.

Senator Spivak: Do you have an indication that amendments will be proposed by some members of the committee?

The Chairman: It is possible.

Senator Spivak: If there are amendments, that takes time. If not, clause by clause is quick.

The Chairman: I am not presuming anything, but I will also say that several of you have told me that the reporting of this bill is likely to be accompanied by observations. I think we have all understood that.

Senator Spivak: Yes.

The Chairman: I have concluded that the most practical thing is to consider those observations at the same time as we are looking at clause-by-clause consideration of the bill so that they can be reported forthwith at the next possible meeting, which would be Thursday next. I do not want to presume anything on the part of anybody, but if there are observations, they will be attached to the bill in whatever form it is reported. I think it will take a meeting to deal with that. I invite your comments.

Senator Spivak: The only problem here is the life of this Parliament. Can you tell us, because you have inside information, that this Parliament will still exist by next Tuesday?

The Chairman: Senator Angus and I have a large bet to that effect, which I intend to win, and he will buy me dinner. Yes, we will be here next Tuesday. You know how much I know about politics.

Do you concur with the schedule that I have now proposed? I am seeking your comments.

Senator Angus: At our last meeting you told us the Minister of Justice was coming. What has happened with that?

The Chairman: I told you we were inviting the Minister of Justice.

Senator Spivak: He is not coming.

The Chairman: I will paraphrase what I think has been said. I have not spoken to him directly. The Minister of Justice is unfamiliar with the file, and if he were to appear here, he would be accompanied by officials to whom he would defer. It is those officials from whom we will hear Thursday morning before we hear from Minister Dion.

Do I take it that my proposal for the agenda is accepted, however grudgingly, by members?

Senator Christensen: The only other option would be to get another room and continue through the entire morning on Thursday.

The Chairman: We cannot do that.

Senator Christensen: That is not an option?

The Chairman: No. We are not permitted to do that. I can ask, but I doubt we would be given permission. I know that members have conflicts at 10:30.

Senator Milne: The Legal Committee meets in here.

The Chairman: We might be able to find another room.

Senator Angus: I have a Banking Committee meeting.

The Chairman: The deputy chair of this committee has said she is unlikely to be here on Thursday morning and wishes to be here when we do clause by clause.

Senator Buchanan: We cannot do it.

The Chairman: I defer to that. It would be a marathon day. I suggest that it is not really doable.

Is it agreed?

Hon. Senators: Agreed.

The Chairman: Thank you.

Mr. Gold, I am sorry to put you through that nonsense. I want to express to you the committee's appreciation. We are aware that you have somehow bailed yourself out of a jury trial. We understand that we invited you to come here on short notice, and we are grateful you have done so. We are also grateful for the exhaustive opinion that you provided us in writing prior to appearing here today. I invite you now to speak to us, and I am hopeful that you will agree to answer some questions afterwards.

Mr. Alan D. Gold, Barrister, As an individual: Honourable senators, it is an honour to be here today. Usually, I speak on these issues before a court of law. What I will speak to you about is exactly what the Supreme Court might someday hear on this very issue.

Let me tell you about myself. I did very well in law school. I was lucky enough to receive the gold medal at Queen's when I graduated. I love criminal law. I taught criminal trial and criminal trial practice after graduation, but only part time because I frankly love the courtroom. I love arguing cases. I spent a significant amount of time reading law. For some reason, I am one of those lucky people who get to make a living doing something that is not work. I just enjoy what I do so much.

I have been successful. I write a lot. I am currently a bencher of the Law Society of Upper Canada, having been elected the first time I ran. In 1993, after I was only at the bar 20 years, I was inducted into the American College of Trial Lawyers, which is an invitation-only organization. Many of our Supreme Court judges attend our conventions.

I have always read law. I literally read every case written in Canada. I do it through the services of QuickLaw. I have a way of accessing their computer so that every criminal law case that goes into it, I download every Saturday morning. Obviously, you can go through most of them very quickly. How many times can you read ``Do not do this again''? However, many of them are well worth reading.

I want to make clear that when this brief came to me, when these people approached me, I had not previously focused on this area for some time. I did not know what my opinion would be. They said, ``Here is the legislation. It just does not feel right to us. This cannot be the law of a democratic country.'' I looked at it, and irony of ironies, this was like one of my children coming home after 20 years, because I was involved with this area when it was born.

Ron Delisle, who was one of the best law professors ever at Queen's, became a judge. He convicted a fellow of speeding one day. This fellow was a truck driver, and it was important for him to fight the ticket. The fellow swore his speedometer showed he was only going 80. After reading some Australian dicta, Professor Delisle acquitted him. He said that for absolute liability offences, we will recognize the defence of due diligence. If you have an honest and mistaken belief in something that makes the activity innocent, I will acquit you.

Of course, the Crown would not stand for that. Speeding is speeding. We need that revenue in our province. They appealed it, and the court reversed the decision and said, ``If the province wants to make it absolute liability, go right ahead. We do not know any defence of due diligence.''

Professor Delisle phoned me and said, ``Alan, this cannot be right. Would you take this to the next level of court?'' I took it to the Divisional Court of Ontario, three judges of our Superior Court. I still remember it as one of the most fun days I have ever spent in court. The judges got really interested and came out with a two-to-one decision saying the law of Ontario recognizes due diligence. That was all because Professor Delisle phoned me up. The Crown took us to the Court of Appeal, and this time revenue won. The Court of Appeal said, ``This is interesting. We will recognize due diligence, but this is an offence of absolute liability.'' The person was convicted.

Along comes Sault Ste. Marie. If you read Sault Ste. Marie, you will see that the Hickey case is cited in Sault Ste. Marie. The important point is this: This is all before the Charter. At that time, parliaments and legislatures could do whatever they wanted. You could make it an offence to be ugly in a public place if you wanted to.

The Supreme Court said they would recognize what they call the ``halfway house,'' strict liability. The court said that due diligence would be a defence unless there is clear language saying that, no matter what, you are guilty. The court then said that they would put the onus on the accused to prove due diligence.

There is nothing wrong with that because, at that time, they were creating something new for the defence. The alternative was absolute liability. If the alternative is absolute liability, I will take the burden of proof; I will take anything. Anything is better than absolute liability.

Then along came the Charter and the entire landscape changed. Absolute liability that carries the risk of imprisonment is illegal in this country. The entire framework has changed. Absolute liability is no longer a kind of beneficence bestowed by parliamentarians out of the goodness of their hearts as an alternative to strict liability. You can no longer have absolute liability. Now the bottom line, if the potential of imprisonment is involved, is strict liability.

If you pass this bill, I will be delighted to argue in the courts on how unconstitutional it is on the basis that perhaps it is time to visit Sault Ste. Marie post-Charter. There has never really been a careful analysis.

I will not take up your time with issues that are not absolutely clear-cut, because there is no doubt whatsoever that there is an unconstitutionality about this proposed legislation. To illustrate that there is a reasonable prospect that I know what I am talking about, I will tell you something of which I proud. I have personally been responsible for, I estimate, six amendments to the Criminal Code. I took Chabot to the Supreme Court of Canada, and the Supreme Court agreed with me that you cannot commit after a preliminary inquiry on offences disclosed by the evidence. The Crown argued against me. I won, and you then amended the Criminal Code. I argued in Duarte that if a policeman tape records private conversations without a warrant, it violates the Charter.

When I walked into court to argue that case, the Crown, who was a wonderful person and a great friend, said, ``Alan, this is the stupidest argument I have ever heard.'' The Supreme Court of Canada agreed with me seven to two, I believe. Having amended the code, you now need a warrant for tape recordings.

I say that, first, because I am proud of it. I love what I do; I love making these arguments. I have won a couple of cases, but I have lost plenty more. Do not misunderstand.

I will tell you what is wrong with this proposed legislation. You have probably heard all up and down Parliament Hill about Wholesale Travel, the main Charter decision on regulatory liability and due diligence. In a five-to-four decision the Supreme Court upheld liability for negligence of a certain type, but I will not get into that. I will save those arguments for court.

In a seven-to-two decision the court said that the reverse onus violates the Charter. Putting the onus of proving due diligence on the defence violates the Charter. There are no ifs, ands or buts about it.

Why was it saved in Wholesale Travel? This is fascinating. It was saved by a majority of five. What did that majority of five consist of? Four judges of the Supreme Court said that not only does it violate the Charter but, even in this relatively Mickey Mouse travel agency context, where people get licences and no one goes to jail for a long time if they print a false brochure, it is not saved or justified under section 1.

Five upheld the legislation. That is important. Three of them said that it violates the Charter but is justified. Two of them said it does not violate the Charter. From the point of view of precedence, a lawyer arguing would say that you cannot assume what those two judges would have said had they found that it violated the Charter, because they believed it did not violate the Charter in the first place. How do you know that when the next case comes along and they have to agree that it violates the Charter, because the Supreme Court has said that, they will now say that maybe under section 1 it is not safe?

I know that the experts on Thursday will say that there have been three perfunctory decisions since then that have said that Wholesale Travel legislation is valid. I know they will mention that. Those have absolutely no value for precedence. There has been no intelligent discussion of the situation since Wholesale Travel.

When I got into this, I was fascinated by it. The clients did not know what my opinion would be in advance; they only knew my opinion once I had done the research and formulated it. I am giving you my opinion based upon my research.

When I read the Canadian Pacific case, I hoped that the Supreme Court may finally decide this. It was not even raised. They only considered the ``void for vagueness'' argument. The simple fact is that the reverse onus absolutely violates the Charter and all the government can tell you is that in Wholesale Travel a majority of five, comprised of the two groups I have identified, said it was justified under the Charter. At the very least, the government has to say that they recognize that they must justify the reverse onus under the Charter. They cannot say otherwise. Wholesale Travel did not decide that this reverse onus, in this context, is justified. It did not decide that a reverse onus for due diligence in every context is justified. Cases do not decide that.

The Supreme Court talked about regulatory offences, and part of their justification was that there are thousands of prosecutions a week; how could the government do otherwise. That shows you the context they had in mind when they said that this is justified in this context.

That has nothing to do with $1-million fines and the risk of imprisonment. You are not talking about night court offences. You are talking about very serious prosecutions. That is not what the Supreme Court was talking about in Wholesale Travel.

At the very least, the government must admit that they have a burden of justification to show you that this reverse onus, as in Wholesale Travel, would survive a section 1 analysis in this bill, in this context.

I looked in vain for such justification. I saw nothing on the record. If they came to court, they would have to offer justification. I understand there has been reference to legal opinions, but they are privileged.

Let me refer you to another decision that I won in the Supreme Court of Canada called Campbell and Shirose which, by the way, led to another series of amendments to the code that had previously allowed the police to break the law. In Campbell and Shirose, the Supreme Court said the police are not allowed to break the law in the course of their duties. The other issue in Campbell and Shirose was that the police said their actions were justified under section 1 of the Charter. Their justification was that they got a legal opinion saying it was okay. The Supreme Court said in no uncertain terms that when you are relying on a legal opinion to justify Charter validity of police actions, those opinions have to be revealed. When you are trying to justify something under the Charter, you cannot claim you are acting on legal advice and keep the legal advice secret.

I can only say to you: Where is the justification that people facing the prospect of imprisonment, of detention, should have to prove due diligence?

Where is the proof? The onus of proof is on the government under section 1. In other words, once the defence raises due diligence as a defence, they have to introduce some evidence to make it a live issue. They do not just throw up their hands and say, ``Judge, due diligence'' and that is it. The Supreme Court has laid down the rule for defences. You have to introduce some evidence and make it a live issue. Once they make it a live issue, where is the evidence that making the government prove a lack of due diligence beyond a reasonable doubt will undermine the proposed legislation? There is nothing on the public record that supports that conclusion. I say to you, this bill, this onus of proof of due diligence on the defence, is clearly contrary to the Charter, and there is a complete absence of justification on the public record that should satisfy you to pass it in its present form.

I thank you for the opportunity to present this before you. I welcome any questions you might have.

The Chairman: I think there might be some.

Mr. Gold, I should explain that Senator Spivak has a temporary and virally induced hearing problem. She will be looking at the answers on the device in front of her. Her responses will be a couple of seconds later.

Senator Spivak: Actually, I can hear him. He was elevated and impassioned.

The Chairman: Keep speaking loudly, Mr. Gold.

Senator Spivak: Mr. Gold, I have to tell you that if I were accused of murder, I would want you to defend me. You can say that black is white and white is black.

Mr. Gold: If we are not sure what the colour is, I would try to help you identify what is white and what is black.

Senator Spivak: Have you actually participated in environmental law in this particular context?

Mr. Gold: I do not think so. I have read the cases. Often, you will go into a new area and you have to read the cases and then you go to court. The principles I am talking about are the same. Once these people are in jail, the jail feels the same whether you are there because somebody convicted you of an environmental offence or because they convicted you of punching somebody.

Senator Spivak: I have some questions, but let me just read you something that comes from the brief presented to us by the Sierra Defence League, from a recognized legal scholar. He said:

Broadly stated, the result of Wholesale Travel is that the presumption of innocence in section 11(d) of the Charter will not be available to shelter persons from liability for their proscribed activities in a regulated sphere of business. Thus, where an offence is shown to be regulatory and non-criminal in nature, strict liability will be operative and the defence of due diligence will be available.

Strict liability and due diligence have been in the Canada Shipping Act for a long time. In your brief, you say it is clear that the reverse onus for the defence of due diligence is incontrovertibly contrary to section 11(d) and to survive it would have to be justified under section 1 and, ``In my opinion that justification is not forthcoming.''

You say it is unconstitutional. That is what makes me wonder how you use words. If something is saved by section 1, it is then constitutional, is it not?

After you say that, you say it has to be decided on a case-by-case basis. Certainly, but is that not the general way? There is case law that lawyers have used, et cetera.

In the absence of any other precedents, are you suggesting that the Wholesale Travel case is not a precedent? I saw what you are saying. There were only two judges, and you say that coalition of judges could not occur again. Why not?

Mr. Gold: To start at the beginning of your question, I am familiar with that article. You will notice that that writer assimilates several issues that have to be kept distinctly separate. First, he slides over the issues of violating the Charter and being saved under section 1. If you read the footnotes for that passage that you read, you will see that he cites provincial cases. One of the things you have to bear in mind is that provinces have no criminal law jurisdiction. When they pass environmental legislation, by definition, it is regulatory. It is very important to remember that.

I am trying to remember all of your questions. I will go through them one by one.

Wholesale Travel is a precedent. It is a precedent I rely upon. I rely upon it for the proposition that section 1 justification must be demonstrated for a different context.

The one thing I do say to you is that if you look at what the Supreme Court said when it was talking about regulatory offences, what you have in this bill is not a regulatory offence as they were talking about it. These provisions could have gone right into the Criminal Code. Cynical people might say the fact that they are in this particular bill is an exercise in colourability. That really you are creating serious crimes, but you want to characterize it as regulatory so you put them outside the Criminal Code. These are freestanding offences. They could quite easily have been inserted right into the Criminal Code. For example, we now have stock market offences being added to the Criminal Code, among other things.

My second point is that, as I say in the letter, it may well be time for the Supreme Court in the federal context to revisit the dichotomy of regulatory versus criminal, which pre-dates the Charter.

Senator Spivak: The Canada Shipping Act has been in force for a long time and nobody has said this is non- regulatory.

Mr. Gold: That is the last area I was planning to deal with. I did a search on similar provisions. I may have the date wrong, but since about 1995, 1996, 1997, there have been approximately five instances where similar due diligence offences have been inserted into various pieces of legislation. I remember some egislation dealing with the Arctic, for example. I categorically urge you to resist the temptation that because you have made a mistake 10 years ago and because no one has caught it yet —

Senator Spivak: Thirty!

Mr. Gold: No, the burden of proof for due diligence only postdates Sault Ste. Marie and the Wholesale Travel era. That was one of my realizations when I did the research. I am into something that no one has caught. Yes, people like the writer you quoted have completely slid past these issues. They have completely ignored the distinction between federal and provincial jurisdiction. That is why I come to you to say, ``Stop making this mistake. Stop putting the onus of proof on the defence without a demonstrated necessity to do so.''

Senator Spivak: May I continue? You do not touch at all, or at least you do so only very briefly, on one of the other reasons for strict liability, which is the inability to prove mens rea. That is one of the major reasons. Look at the process that will take place. It was outlined before us by one of the Justice lawyers. It does not just happen that the prosecutors will immediately lay a charge on someone where it is clear on the face of things that this was accidental or whatever. It is a careful process to ensure that if we are intending to deal with these kinds of issues, maybe it should be in the criminal sphere. It is not automatic that innocent people will be prosecuted, or you could say that for our whole system of justice.

I am coming to my question.

On the other side, I am not sure if you are giving enough weight to the seriousness of what has been happening. In other words, ships are unloading their bilge oil in Canada as opposed to the United States because we do not have sufficient deterrence. That bilge oil is damaging not only the birds, but our entire tourist industry. It is a serious problem. It is also, obviously, a solution to have a continuum from criminal to direct liability.

Mr. Gold: Let me see if I can respond, because you make several points, obviously, and they are important ones.

The first one is I would categorically reject the suggestion that bad law is made good because we should trust the prosecutors. That is an argument that the courts have rejected over and over again. It is one of the prosecutors' favourite arguments: Do not worry if this law is vague. Do not worry if this law has the potential to create injustice. You can trust us. We will only use it when it is appropriate.

In law, we have a maxim that goes as follows: We live under the rule of law, not the rule of men. The purpose of that maxim is to emphasize that we look to our laws, not to good judgment. It was invented at a time when women were not in politics, so I apologize for the sexist language. I should update it to not a law of ``persons,'' but you understand the point. Our laws do not depend on the goodwill or the capabilities of prosecutors. They depend on the words in the statute books.

Every day in our courts prosecutors prove mental states, they prove who hated whom, they prove who intended to kill whom, and they do it in the most serious cases. The argument that intention is hard to prove, therefore they should not have to prove it, would lead tomorrow to changing the law on murder because it is too hard to prove that someone intended to kill someone else. Difficulty of proof is not a reason for strict liability. I cannot emphasize that enough.

Finally, no one is underestimating the seriousness of the problem. I have read some literature from the government on this. Clearly, there are number of things that you have to do to protect the environment. What I see, though, is that a number of those other steps are expensive and time-consuming, whereas it is much easier to pass a reverse onus law and look like you have accomplished something. There is much to be done to protect the environment, but that is not the question. The question is: How much better off will you be if you make the defence prove due diligence, contrary to the Charter, than if you make the Crown disprove due diligence once the defence has introduced some evidence to make it a live issue?

I read the reports of the prosecutions, both successful and unsuccessful, but with this in mind: What cases would have ended differently? Where are the unfair acquittals that would have been correctly decided if the burden was on the defence? I could not find any examples. I found cases that failed because they could not show who was responsible. I did not see any cases that failed because the defence raised due diligence and the prosecution could not disprove it beyond a reasonable doubt. I did not see that that appears to be a massive problem that requires a reversal of proof. You have to ask the right questions in order to get the right answers.

The reverse onus is not justified in order to make convictions easier. It is justified by other factors, the most common of which is that what you are reversing the onus with regard to is not just something that is hard for the prosecution to prove, but is very easy for the defence to prove if true. You have to keep both sides of that equation in mind. With the greatest of respect, I do not see that due diligence, as it has been defined, is a case of you pull a card out and right away you get out of jail free. Due diligence is extremely difficult, whoever has to prove it.

Therefore, it is important to bear in mind, if it is as hard for the defence to disprove as the prosecution to prove, that does not justify shifting the onus of proof. In our society the onus of proof allocates the risk of losing a case, and we allocate the risk to fall on the prosecution because anything else is tampering with our system of justice.

This is most important: You can read all the cases you want, especially the provincial cases. As you probably have been told, there are, literally, perhaps two cases involving a risk of personal imprisonment. I think one executive maybe spent some time in jail. I am not sure. I could not track it down. We are way beyond that. We are in federal jurisdiction. You will send people, including corporate officers, to jail. That is what this bill says. You cannot be doing that without a burden of proof on the prosecution beyond a reasonable doubt. The easier you make it to convict people, the easier you make it to convict the morally innocent.

The Chairman: I will ask you to expand on a couple of things in your answer to Senator Spivak. One is the difference in the weight of the onus, in that due diligence needs only to be proven on the balance of probability as opposed to beyond a reasonable doubt. The event has to be proven by the Crown beyond a reasonable doubt; due diligence can be shown on the balance of probability, so it is a lower burden of proof.

Tell us how you think Canada can fix the problem in a hypothetical situation that I will describe to you, because it is the evidentiary question to which you referred, saying that is not a good enough reason to have reverse onus. Suppose it is dark, there is fog, there is a big ship and somebody on that ship, for whatever reason — never mind what reason because we will never know — decides to toss some oil overboard and it kills some birds or threatens to kill some birds. It can be proven on the basis of scientific evidence that that oil came from that ship. It can be proven, as I understand it, beyond a reasonable doubt. We have heard evidence to that effect. Absent someone's ratting on somebody, how would it be possible to ascribe any responsibility to a person, as opposed to a ship, for that event in the absence of the strict liability concept we are talking about?

Mr. Gold: First, on the issue of burden of proof, balance of probabilities is the burden in civil cases. That is not a light burden. The plaintiff, to succeed in a civil case, must succeed on a balance of probabilities. This is the same burden. It is a heavy burden. The fact that it is less than beyond a reasonable doubt tells you nothing because no one could ever put a burden on an accused of beyond a reasonable doubt. That would clearly violate the Charter any way you looked at it. You are not giving the defence anything by saying it is only a balance of probabilities because it could not be higher. That is the highest possible burden you could put on the defence.

The example you gave, there have been cases where it was dark, foggy, people were in a room, shots rang out and there was a body. Does that mean you will convict everyone in the room of murder because you do not know who did it? No.

Your hypothetical scenario contains a very important fact. Someone on the boat threw the oil overboard. We can prove that. The failed cases that I see often miss that link. The cases fail because there is a problem in that link. I say to you, once the Crown can prove that someone on the boat threw it over the side, they will win the case unless the defence introduces evidence of due diligence. How will they do that? What is the due diligence that would possibly negate throwing it over the side? Therefore, the Crown has nothing to worry about.

The hypothetical situations where the burden of proof will matter are cases where in fact the defence can show due diligence. As a matter of logic, the cases we are arguing about are the following: You have some pollution, the defence can raise a reasonable doubt that it acted with due diligence, but it cannot prove on a balance of probabilities it did. You will convict those people. That is the only range of cases that separates us, because if the defence cannot even raise due diligence, the Crown will get a conviction and you do not need the reverse onus.

Do you really think it is fair to convict people under these kinds of penalties and put them in jail when there is a reasonable doubt that they acted with due diligence, but they cannot prove that they did? I cannot believe the Supreme Court would uphold that. If there is a reasonable doubt that somebody acted with due diligence, should they not remain free on the streets?

The Chairman: Yes, and I do not think any court would convict them.

Mr. Gold: They will if you reverse the onus, because they will go to jail unless they establish on a balance of probabilities that they acted with due diligence. It is important to bear in mind — this is the only category of cases we are arguing about — where the defence has no evidence of due diligence, the Crown will succeed. You do not need to reverse the onus.

Senator Spivak: Therefore nobody is responsible.

Mr. Gold: No, they will be convicted. Where the Crown proves that they caused pollution and they have no evidence of due diligence, they will be convicted. The only category of cases that separates the two sides is where the person has enough evidence to raise a reasonable doubt about due diligence but cannot prove it. Surely it is unfair that somebody should go to jail if there is a reasonable doubt they acted with due diligence.

That is why I cannot believe the Supreme Court would uphold the reverse onus in this context.

Senator Milne: To follow through on that, I thought that due diligence in this bill is only for the master or the owner of the ship. They are the persons who are ultimately responsible. So long as the master or the owner can show that they had good rules and trained their crew properly, that is proof of due diligence.

Mr. Gold: First of all, I understood there was a general due diligence defence. I may be wrong, but I think there is.

In any event, let us take your situation. As you just put it, as long as they can show due diligence, they will be fine. That is not what this bill says. Showing due diligence means raising a reasonable doubt, introducing some evidence. They will not be fine unless they can prove due diligence on a balance of probabilities, just as if they were in a civil case. By showing they acted with due diligence, they will go to jail. That is not your defence.

The defence you are being asked to pass in this bill requires proving due diligence on a balance of probabilities. It has to be more likely than not that they acted with due diligence. That is a burden of proof on which many people, even though they are able to raise a reasonable doubt, will not be able to convince the court, and so they will be convicted. That violates the Charter.

Senator Milne: If they have good rules and they have trained their people, I cannot see what more you could require as proof of due diligence.

Mr. Gold: You can look at it the other way. If the defence introduces some evidence that they train their people properly and have good rules, then why should not the Crown have to prove beyond a reasonable doubt that they did not act with due diligence? Why should they have to do more? Let the Crown prove that they are criminals, not them disprove they are. I would turn it around.

If they introduced evidence that they had good rules and acted properly, that is what I mean about making it a live issue. That is what an accused is required to do. Then the Crown has to step up to the plate and disprove it beyond a reasonable doubt.

The Chairman: You are suggesting now, if I understand it, that with respect to the burden of proof on the accused, that to prove on the balance of probability that care was taken is a greater and more difficult onus than to raise a reasonable doubt.

Mr. Gold: Yes, exactly; that is the law. What you should do to make the bill proper is delete the onus of proof of a balance of probabilities. You can keep the defence of due diligence; just say the accused has a defence of due diligence. The way it will then be interpreted is that the defence has to introduce evidence, their rules, their training — they have to show what they did. Once they do that, the Crown then has to prove they are criminals, not the other way around.

Senator Hubley: I would just like to go back to this for one moment.

Once a situation has occurred — we have an oil spill, it has been identified as coming from a certain vessel — through the investigation process, the prosecution has the evidence to take that to court.

Mr. Gold: To hold them responsible for it, for the event.

Senator Hubley: To hold them responsible for that. When we have the reverse onus on the burden of proof, given that this situation is unique in the difficulty of trying to prove that a law has been broken, I cannot quite see your argument that it is unreasonable to have a due diligence defence for that.

Mr. Gold: No, I am not saying that it is unreasonable to have a due diligence defence. I am saying it is unreasonable to make the defence prove it as if it was a civil case.

Let us take the example you gave and follow it along. Supposing that is all the government proves; they have linked the spill with a particular ship. Ships are not supposed to make spills, we know that. If the defence sits there quietly and pretends they do not know what is going on, they will be convicted because no due diligence has been shown. You have something improper. The law is not silly. If you have done something improper and you stand silent, you will be held liable for it.

The defence tries to meet the case by introducing evidence as to what steps they took to prevent spills — what training, what rules, what regulations. Once they do that, then the court rules on have they made it a live issue? In other words, have they introduced enough evidence that the court should even consider it?

If they do not, they will be convicted, so let us assume they do. At this point, we are into the territory between the bill as drafted and what I am saying it should mean. They have introduced some evidence that is capable of raising a reasonable doubt that they exercised due diligence. However, they do not have a good lawyer, it is not a big ship, it is not a rich company, they cannot hire the best experts, so they are not capable of persuading the court on a balance of probabilities.

Their defence is not so good that the court believes they acted with due diligence, but the court would still have a reasonable doubt that they acted with due diligence. That is where this bill matters, because you would convict those people, and I say the Charter does not allow it.

To make an example that perhaps is a little clearer, one of the earliest cases I had involved counterfeit money. At that time, it was viewed that the onus of disproving that you knew it was counterfeit was on the defence.

I had a nice young fellow who went into a gas station and gave a phoney $50. We argued the case — the accused pulled it out of the wallet; it was the only one he had; he did not try to run away. The judge made a dishonest finding. The judge said, ``You know, Mr. Gold, I have a reasonable doubt that your client knew this bill was counterfeit, but I am not persuaded on a balance of probabilities that he did not know it was counterfeit. Therefore, under the law as it stands, I must convict him.''

It went to the Court of Appeal; they said, ``No, that is no longer the law. The Crown must prove beyond a reasonable doubt that the accused knew it was counterfeit.''

I use that as an illustration. As a trier of fact, a court hearing a case and considering the evidence can say, ``I have to admit, I have a reasonable doubt. I have a reasonable doubt that this company did not act with due diligence. Am I persuaded they acted with due diligence? No, I am not convinced of it.'' That is why the burden of proof matters.

I say that if the evidence from the defence leaves the court with a reasonable doubt about due diligence, the accused should be acquitted. By reversing the onus, you will be convicting people like that. That is the difference.

Senator Hubley: I have difficulty in assuming that there will be any lack of legal opinion or legal support for the situation — in other words, because a lawyer fails to do an adequate job, then a person will be convicted. I do not think we can go there.

Mr. Gold: I just meant that in the real world, the difference in the burden of proof has enormous implications. Many accused in our courts day in and day out are acquitted because they raise a reasonable doubt. They are not acquitted because the judge is convinced they are innocent, believe me. That is why the law, over hundreds of years, formulated the standard. If you require the accused to prove something, you will convict a lot more accused and you will convict more innocent accused.

Senator Spivak: Let us take speeding. Speeding is an absolute liability.

Mr. Gold: Yes.

Senator Spivak: When you look at this situation and what is going on in the real world, about 5 per cent of ships are rogue operators. It is cheaper for them to dump their oil than to go into port. It is a cost of doing business. Maybe they will get caught, maybe not. Here is surveillance. They see the oil slick. They see the ship. Is your remedy, then, that there should be absolute liability?

Mr. Gold: No, no. Speeding is an absolute liability offence because there are literally thousands of cases every night across this land and it would be impossible for the prosecution to prove in each case that the accused knew, and generally the accused does know. I am sorry, but I do not see thousands of environmental cases in night court every night. Speeding and environmental offences, with the greatest of respect, are not in the same category at all, not to mention the fact that nobody goes to jail for speeding and nobody gets million-dollar fines for speeding. Penalty is very important. The more severe the penalty, the closer you are to real crime.

As I say, why not just put the provisions in the Criminal Code and be honest? These are serious environmental crimes. If they are crimes, then the rules for crimes apply, not the rules for speeding.

Senator Christensen: So they should be absolute liability?

Mr. Gold: No, they could not be, by law.

Senator Christensen: So what will you do with it?

Mr. Gold: You will prosecute them according to the law of the land.

Senator Spivak: There are lots of environmental crimes.

Mr. Gold: They are mostly provincial regulations, which cannot be criminal. It is important to remember that.

Senator Spivak: The criminal penalties have been in the Canada Shipping Act for a long time. If you did not have the criminal penalty for negligence, would you still hold the same opinion?

Mr. Gold: The reverse onus on due diligence is not a historical feature. It derives from Sault Ste. Marie and was adopted after the Charter and Wholesale Travel. I realize there has been a Canada Shipping Act for a long time, but the types of provisions we are talking about, as far as my research showed, were essentially piggybacked after Sault Ste. Marie. The government loved it, especially since the court said, ``You should only use absolute liability rarely.'' It is important to understand that. It was really a benefit for the accused, not for the government.

Since then, I realized there are similar provisions. What struck me as astounding is that they appear never to have been challenged. I say to you that they in no way say you should keep repeating the same mistake. If anything, why not go back and remove the reverse onus in the other provisions? That would be the right thing to do. The issue here is whether we should have the reverse onus. With the greatest of respect, I am trying to convince you there is no demonstrable justification for the reverse onus.

Senator Spivak: Of course, in the United States —

Mr. Gold: They use civil penalties, with substantial amounts of money. That is great, and it has nothing to do with crime. I realize they have some penalty provisions, but it is also important to bear in mind that our law under the Charter regarding elements of offences has progressed beyond the American provisions.

Senator Buchanan: I may as well indicate clearly from the outset that I have no difficulty with a lot of what you are saying. We have heard this before from totally independent legal people. We have heard legal opinions on international law from the International Shipping Federation. We have heard that certain clauses of this bill violate Canada's international obligations.

Senator Spivak knows, as do the rest of us, that the United States is not a signatory to many of these agreements that we have been talking about — MARPOL and UNCLOS. She is talking about the United States. Most of the penalties in the United States, unless for flagrant violations, are not criminal. They are civil, and there are millions of dollars of fines.

We are here talking about criminal law. We are here talking about criminalizing seamen, officers and engineers. We are here talking about the possibility of business being taken way from Canadian ports. It is not just a fantasy. We have heard it from international representatives, from the unions, from the seafarers' people, from the officers, the engineers and the captains' association. We are into some serious business here.

We have also heard that a lot of the information that we are hearing in this committee was not heard by the House of Commons committee. Why it was not, I do not know, but we were told that many of the witnesses we heard were not even made aware that the House of Commons was considering Bill C-15. If they had known, they would have been there to put up the big red flag saying, ``Hey, you have a constitutional problem here.''

You just cannot introduce legislation that will violate the Charter of Rights of Canada. I know something about this. I signed the Charter of Rights back in 1981. I was part of it, even though I was opposed to some of it, and very much in favour of the notwithstanding clause. On the other hand, it is there, and we cannot just knowingly violate it.

What is this Senate committee for? What is the Senate for? We are here to give the sober second thought that may not have been given to it in the other place. We know it was not given to it in the other place, and we also know that 80 per cent of the legal opinions come to the same conclusions as our own legal counsel did — that this is a violation of the Charter of Rights.

The Chairman: Do you have a question of Mr. Gold?

Senator Buchanan: Do you agree with what I said?

Mr. Gold: Yes. Yes, I do.

Senator Buchanan: Case made.

The Chairman: I am trying to allow the freest-ranging discussion, senators.

Senator Buchanan: I do have one question. I understand what you did. In your research and your own practice, which of course has been extensive, and we all know that, you did not look at the international aspects of this bill?

Mr. Gold: Just slightly. With the Internet, it is easy to look at all kinds of things. I did notice that a similar debate is going on in Europe, where they say mere negligence violates their constitutional documents. If a European lawyer were here, he would say that you have to make even greater changes. I will not get into that issue.

If I can get you to take out the reverse onus, I will be very happy. To the extent that the Europeans are fighting this battle, they are even more on our side. They say you cannot make mere negligence a sufficient basis for liability.

Senator Buchanan: That is exactly right. We had a legal opinion from the International Chamber of Shipping that this bill is, first, unconstitutional, and second, it does violate the treaties that Canada has entered into.

I learned long ago in legislation that, ``If ain't broke, don't fix it.'' The reverse is, ``If it is broke, fix it, but fix it before you have a problem.'' We probably should know by now that we have a problem.

Why would we pass legislation knowing that we will have a problem later on? Is it not better to fix the problem now rather than read later on in the Supreme Court of Canada decisions that the Senate committee did something that they should not have done or omitted to do something they should have done? Do you not agree?

Mr. Gold: I was delighted that the Senate was examining this bill. This is what I was taught in law school about how our Parliament is supposed to operate. I looked at this bill, and I was honoured and thankful for the opportunity to come here instead of going to a court to make you understand our objections.

Senator Buchanan: Hear, hear!

I cannot tell you the number of times that we passed legislation in Nova Scotia, only to look back on it and wish we had not done it because the courts ruled it was ultra vires and threw it out. We would hear the comment, ``You should have fixed it before you passed it.'' That is what we are trying to do here.

Senator Hubley: I do not know that it is relevant to explain why the shipping industry did not get involved with the bill in the other place, but it was there on two separate occasions. It has also been related to us that the Department of the Environment has taken the problem of oiled birds at sea to the International Maritime Organization many times. I do not know why they would not have responded, but they certainly have responded to the Senate, and for that we can be thankful.

I might also point out that we are hearing two arguments, of course. You are bringing us yours. We have also had substantial evidence from, for example, the people in Newfoundland, and from environmental organizations. That is very important.

This is a Canadian problem. It has been going on for some time. We do have laws that govern it. About 5 per cent of the shipping industry is breaking the law. We are talking as if we will be damaging the reputation of the entire industry, and we certainly have no intention of doing that. A small percentage is breaking the law. They are criminal in what they are doing. It is definitely impacting upon Canada to a much greater extent than on the United States. The penalties in the United States and parts of Europe are much greater than ours. Bill C-15 would bring our penalties in line with other jurisdictions, which we hope will solve the problem of the ``cost of doing business.'' We are assured there are adequate numbers of port facilities to service the shipping industry, and yet they are choosing not to do that. They are choosing to get rid of the bilge at sea. It saves them time, and it obviously saves them money.

The problem that we are looking at must be addressed. The bill is necessary to give us that ability under both the Migratory Bird Convention Act and the Canadian Environmental Protection Act.

I have read your brief, your legal opinion. There are times when I am quite encouraged that you do not say something is absolutely wrong, but you would rather see it done a different way. The one area you seem to be having difficulty with is the reverse onus.

Mr. Gold: The reverse onus is wrong.

Senator Hubley: Of all of the things here, it is the reverse onus especially. I do not know how much arguing we will do before you change my mind or I change yours, although I am trying to keep an open mind. That is where you, Mr. Gold, see a problem.

Mr. Gold: If I may address that.

Senator Hubley: By all means.

Mr. Gold: I do not know if you are a lawyer.

Senator Hubley: No, I am not.

Mr. Gold: It is difficult for a layperson to understand the great significance ``burden of proof'' has in prosecutions. In your exposition, you talked about the 5 per cent being responsible. When people talk about wrongdoing and malfeasance, they always imagine the wrongdoers. That is who they are talking about, that 5 per cent. What is hard for laypeople to understand is that when the court looks at who has been brought before it, it does not know if it has one of those 5 per cent or one of the 95 per cent who are innocent. That is why we are in court.

Senator Hubley: I understand that.

Mr. Gold: The harder you make it for one of the 95 per cent to identify themselves, the easier you make it for one of them to be wrongly convicted. That is why burden of proof is crucial. Suppose the burden of proof is on the defence to disprove due diligence. At the end of a year you have, say, 50 convictions, whereas if the burden was only to raise a reasonable doubt, at the end of the year you would have 45 convictions. I do not think it will make that large a difference, but it will make some difference. If it does not, then there is no justification for the increased burden.

Assuming it makes a difference, you have a group of people about whom there is a reasonable doubt of innocence, but they stand convicted. Those five cases are labelled criminals, although you do not know whether they were among the 5 per cent in the first place. They may have been brought into the criminal group merely because they could not meet the onus of proof. That is something that I know is not obvious to laypeople, but lawyers and judges struggle with it. That is why burden of proof is so important.

That is why we say that a higher burden of proof requires justification. Justification is something that is easy for the defence to prove true, such as being licensed. If your defence is, ``I was licensed,'' whip out the licence. You will be acquitted. That is why the justification for reverse onus in cases like Wholesale Travel is something that is easy for the defence to prove, because then you are not running the risk of convicting the innocent. You do not just shift the burden because it is a tough issue for the prosecution.

I came with one crystal clear issue: Delete this burden of proof. If in five years someone comes back in front of you and says, ``We have lost 1,000 cases because of burden of proof,'' you will have lots of time to reverse the burden of proof then. That will not happen. I bet that if you delete the burden of proof and look at this in five years, no one will be able to show you any case of a wrongful acquittal. No one will be able to point and say, ``In this case, here is the evidence that this person was really guilty, and they got off because of the lower burden of proof.'' That is not what happens in the real world. I say that with utter confidence. If you reverse the onus, then you will never have a chance to see the injustice and unfairness.

Senator Angus: I would like to echo what others have said about how much we appreciate your coming here and taking time off from your trial.

We are fortunate to have been able to hear your views on what is not an easy issue. We are all here trying to find a way to save these birds from becoming oiled, as simple as that. You have probably been told that by your clients.

When you started tonight, I wrote down here what you said after you told us how much you love what you do. By the way, I am a lawyer too. In Montreal they have a saying: ``What happens to a lawyer when he goes bad? He becomes a senator.'' You said here ``This law is not constitutional, I have no doubt whatsoever.'' I wrote that down and I did not take any more notes, because as I understand it, my job here is to make sure we do not pass bad laws, and certainly not something that is unconstitutional on its face. I just want to be sure. Have I got it right?

Mr. Gold: To be clear, there is no doubt the reverse onus violates the Charter. Will it be saved under section 1? In my humble opinion, given the penalty, given the context, I cannot believe that my Supreme Court would uphold this under section 1, given the absolute lack of demonstrable justification that I was able to find.

Senator Angus: When I practised law I practised largely admiralty, maritime law. I did not practice constitutional law much, but I took all the courses under Frank Scott and the like, people you know well. I was in the same class as the Honourable Mr. Justice Fish, who I understand you know, and we both did quite well in constitutional law. I remember after the Charter came in, we were alumni and went back to the law school to debate the expression ``Charter-proof.''

In this context, Senator Hubley and I have asked a number of witnesses the following question: Is there a simple way to fix this bill to make it constitutional, to make it Charter-proof? We have heard other complaints about it, but the one thing that really gets to me is hearing someone like you say it is unconstitutional. In your opinion — and I do not mean a 10-page amendment, or even 20 words — are there one or two words that we could change to make this bill fly legally?

Mr. Gold: Delete the words ``the onus of proof which is on the accused,'' or the defence. I forget the exact wording. Does someone have it here? There is a clause where the onus is put on the accused. Look at any one of the proposed sections providing for the due diligence defence and there will be a provision in there saying the onus of which is on the accused, or the onus of which is on the defence.

The Chairman: We will find it.

Senator Angus: Clause 13 seems to be an offensive clause of the bill.

Mr. Gold: Go to the due diligence provision.

The Chairman: We will find it.

Senator Angus: That is a way we could make it Charter-proof and still accomplish the types of things that you are concerned about; is that correct?

Mr. Gold: In my opinion, if you did that, the obvious problem would disappear. That does not mean that some lawyer might not argue the others.

Senator Angus: I understand that.

Mr. Gold: The crystal-clear problem would disappear. As I say, if by some miracle — and I do not believe this for one second because I have heard these expediency arguments before — evidence could then be gathered that this lack of onus was frustrating the legislation, then you could change it and it would be Charter-proof because you would have evidence to satisfy any court that this was demonstrably necessary for some reason. As I say, I do not think it will happen because the onus is generally reversed when the defence is easy to prove, such as you whip out a licence or a contract to show who is responsible. That is when you reverse the onus, not just because an issue is tough in fact.

The Chairman: I will cite, if I may, what I think we are talking about, if I am in the right place. This is on page 14 of the bill, paragraph 13(1) (1.8). It says:

A person or vessel that establishes that they exercised due diligence to prevent the commission of an offence under this Act, other than an offence under paragraph 5.2(a), (c) or (d) or section 5.3, shall not be found guilty of the offence.

It does not say ``balance of probability,'' it says ``establishes.''

Mr. Gold: ``Establishes'' is legal terminology for the balance of probability, the civil burden. The Supreme Court has said that many times. ``Establishes'' is a well-recognized legal term of art. It is a term of art meaning the civil burden. That is exactly the provision.

If you took out the burden and said something like ``a vessel that has exercised due diligence shall not be guilty,'' then the courts would interpret that as only requiring a reasonable doubt. It is the word ``establishes'' that clearly shifts the onus.

The Chairman: Was this the right part?

Senator Angus: I mentioned clause 13.

Senator Christensen: That is (1.8).

Mr. Gold: That is the word, ``establishes.'' Some of the other legislation says ``on a balance of probabilities.'' All of that language means the same thing — the onus is on the accused.

Senator Spivak: The point here is that it is not just this amendment. You are talking about the Canada Shipping Act. You are talking about all of the other acts that are based on these principles, not to mention all of the other laws throughout the Commonwealth. Yes, that is accurate.

Senator Angus: It is not, and you know it.

Senator Spivak: It seems to me you are a criminal defence lawyer.

Mr. Gold: You make it sound bad.

Senator Spivak: No no, you have not let me finish. Other people who have looked at this have made a distinction between a true criminal offence and a public welfare defence. I have listened to everything. I have not negated what you have said. I understand what you are saying, but to me it says maybe all of this should be a criminal offence. Maybe it should, because you are talking about this being the thin end of the wedge. We have a situation in which our seas are deteriorating beyond belief. All you have to do is look at the scientific evidence. You would have to change all the laws. You cannot just change this one, because then it would not be in sync with Canadian law. As a matter of fact, this bill reduces — that is for criminal offences — the jail terms. It does. In the Canada Shipping Act it is five years, and here it is three.

The Chairman: Senators, we will have lots of time to discuss and argue among ourselves. We will question Mr. Gold while he is here.

Senator Spivak: That is the question. The question is it is not just this bill. Are you suggesting that all of these acts should be changed?

Mr. Gold: First, I may be a criminal defence lawyer but I live in this world, I swim in these oceans, I love these birds. They are adorable. If you think I am here defending pollution, then with respect, you have not been listening to me at all.

Senator Spivak: I do not think that.

Mr. Gold: Just because something is a serious problem does not mean you overreact or behave in an unconstitutional fashion. I am here to discuss this bill. I did mention in passing that when I did the research I found other, similar provisions that appear to have gone unnoticed or unheralded. Dealing with this one and doing right by it would be a step in the right direction. If that takes you down a path to remedying some past errors, I will be even more overjoyed. I am only here for this bill. I say to you: Do the right thing with these provisions and I leave it to you to decide what you want to do with other provisions.

Senator Angus: In your opinion, as drafted, it is unconstitutional. In your opinion, it could be made constitutional and Charter-proof if we change those three words.

Is it unconstitutional and a Charter issue because the penalties, of fines and possible imprisonment, are directed at individuals as opposed to corporations, for example?

Mr. Gold: Yes.

Senator Angus: If we took ``individuals'' out, would it be okay?

Mr. Gold: That is a very important part of it. One of the reasons courts have been lax with regard to provincial environment provisions is that, aside from their inherent non-criminal nature, they have always been aimed at corporations. It is very hard to shed tears for corporations. You cannot throw corporations in jail. This is a matter of legal doctrine and common sense. Having raised the possibility of human beings sitting in jail, you have really raised the constitutional stakes, however you want to cut it, because absolute liability was never an issue. Strict liability is now the worst you can do to human beings. Therefore, you must have additional justification, is the way I see it. You are no longer doing a favour to the defence. When people go to jail, it should generally be because they had criminal intent. I am quite aware of the Supreme Court of Canada's doctrines about the constitutional requirements of mens rea. However, it strikes the average person as unfair to lock people up in jail if they did not intend to commit a crime, did not know what they were doing or were just careless or negligent. That just does not sit well with us.

An important feature of this bill is that you are dragging individuals into it.

Senator Angus: There is a concept in admiralty law called the personification of ships. They are referred to as ``she.'' Ships are arrested and they are sued. When you take an action in admiralty law, you do not name an individual, but rather the ship. Are you familiar with that?

Mr. Gold: I am from reading this bill.

Senator Angus: If we took out provisions to imprison and fine masters and engineers, would it stand the Charter test?

Mr. Gold: There is no doubt that it would be a much healthier provision, and not only in law. Judges are human and we all live in the real world. Psychologically, it would make a big difference. I think courts would treat vessels like corporations. In other words, if a human being will not be staring at four walls for a few months or a few years, I think judges would be much more receptive to the bill. There is no doubt about that.

Senator Angus: You talked about privilege. I am unclear on this, and perhaps I missed something in an earlier hearing. I think your context was that you have been told, or you understand, that Environment Canada came to the committee and said that they had legal opinions but they are privileged. Is that what you were talking about? Did you see that in the transcript?

Mr. Gold: My understanding is that since the Charter, the government has an obligation to be advised on the Charter validity of all legislation, and I know some lawyers who do that and they are very capable. They are excellent people and everyone is sincerely trying to do their job.

When I got involved in this, one of the first things I said was, ``Let me see the legal opinion that justifies this.'' Frankly, I expected to see, perhaps: ``Wholesale Travel — rubber stamp. It is fine.'' However, maybe I am wrong. Maybe I missed something. I am always concerned that I do not overlook anything. I want to give the best opinion, so what are the legal opinions supporting this?

I was advised by the client that they are not available, that they are claiming privilege. I went through this with the RCMP in the Jimmy Campbell case. If you are going to rely on legal advice to justify being under the Charter, you cannot suck and blow. You cannot say that I have an opinion but I will not tell you what it is. That is what I was referencing when I made that comment.

Senator Angus: I understand concepts like privilege; they are basic. In this case, I understand the analogy that the client would be Environment Canada and the solicitor would be Justice Canada, or some lawyer within Justice Canada, possibly.

Mr. Gold: You are raising another issue, that the client can always waive privilege. There is no law saying that a privileged document must always be privileged. That was part of what motivated the court. If the RCMP said that they relied on legal advice but it is privileged, not only are they putting it forward, but you are the client. You cannot deny the other side information by unilaterally invoking your privilege. That is absurd.

Whether you look at it because it is being relied on or because the client is coming forward with it, it should be made public. The justification should be examined. Surely it would influence you.

I am sure this is not the case, and I do not wish to be derogatory, but if the legal opinion was two sentences saying Wholesale Travel says this is okay, would you not like to know that in assessing the bill, in view of what I have presented before you? Would you not want to see the quality, the strength and depth of the opinion? I am happy to give you my opinion, and if you have some other opinion that you prefer, that is your job, but how can you do your job if you are not getting all the information?

Senator Angus: We are told about an hour ago that officials from the Department of Justice will come here in lieu of the minister. If you were a member of this committee with a certain duty, what would you be asking of those officials?

Mr. Gold: I would ask, very simply: ``Do you agree that the reverse onus requires justification under section 1?'' I can only see one answer to that.

Senator Angus: I mean in terms of the opinions.

Mr. Gold: I would ask: ``What is your justification? What is your evidence?'' It cannot be a legal opinion, because it is not a legal matter; it is a matter of justification. As far as the legal opinion is concerned, the only relevance I could see is that it does not need to be justified. If that is the legal opinion, you do not need to see it because you know it is wrong. It has to be justified under section 1.

The first questions are: ``Do you agree that the reverse onus has to be justified under section 1? What is your justification? What was the issue of the legal opinion? What is the relevance to either of those two issues?'' That will give you a lot of information.

Senator Angus: I was not aware they had already claimed privilege, but I overheard my colleague Senator Spivak saying, ``We have tried in the past to get these opinions and we always fail. It is very difficult to get them.'' In this case, if I may put it to you this way, sir, what would you be doing if you were in our shoes? At the beginning of your submission, when you talked about privilege, you said that because the playing field has changed since the advent of the Charter and the jurisprudence under the Charter, they do not have a right to invoke privilege. I think that is what you said.

Mr. Gold: Where they are relying on a legal opinion for Charter justification, that opinion must be disclosed. You cannot rely on secret opinions to justify. You do not have to be a lawyer to understand the logic of that rule.

Senator Angus: It is used a lot, and in fairness, many of us are not lawyers. It is quite intimidating when a battery of these people comes down here from the Justice building to say, ``We cannot give it to you. It is solicitor/client privilege.''

Mr. Gold: You have many excellent, wonderful lawyers. There is no doubt about that and I would not want to suggest otherwise.

Senator Angus: If you were here, you would make them give it.

Mr. Gold: First, I would ask what issue was the legal opinion about. Is it claiming that you do not have to justify, that this is automatically valid? Is that what the legal opinion was? If they say yes to that, you may not want to bother with that legal opinion because it cannot be right. Anyone who tells you that Wholesale Travel shows you that this bill in its present form is fine, with the greatest of respect, I do not think that is acceptable lawyering.

Senator Angus: Mr. Gold, thank you for that. In conclusion, you have said four times that I have counted that these are very good, competent people over there in Justice. Yet you have said it is your unequivocal opinion that the bill is unconstitutional. Why do you think they put this bill before us? We are in a terrible position.

Mr. Gold: Because they have done it several times in the past and no one has raised an issue. Anyone who has had children knows that the basic rule of human nature is if you have gotten away with something once, why not try it again. I hate to put it in those terms, but that is the logic. They have gotten away with it, and I hope you will put a stop to it.

Senator Angus: Thank you, sir.

The Chairman: That is an interesting characterization of the Government of Canada, Mr. Gold.

Senator Christensen: I just want to continue the line of discussion with Senator Angus.

We were asking how we can make it better. You were saying we should delete the burden of proof or the reverse onus and/or the incarceration penalty. Take both of those out? If you have the incarceration penalty in there but not the burden of proof, then you do not have a problem?

Mr. Gold: That is an interesting situation. As a matter of legal principle, I would say, even if you took out the individual, you should not reverse the onus of proof, given what is at stake here, without demonstrable justification. In the real world, as a matter of practicalities, I know that a court may be more likely to uphold the reverse onus if it only involved non-people. I still do not think that makes it right. Remember, a Charter decision such as Wholesale Travel is minimum standards. They tell you what you can do. They do not tell you what you should do or what is right to do.

If you did not have the individuals in here, when I go to court and argue against the reverse onus I know I will have a harder battle because we are not talking about people. We are talking about companies and boats, and they do not have feelings and they are not flesh and blood. That does not make it right. I still have no problem urging you to delete the burden of proof reversal without demonstrable justification, even if we are talking about companies and vessels. I know a court would be more likely to look favourably on the reversal if only companies and vessels are involved.

Senator Christensen: If they just have a pay a big fine that is okay?

Mr. Gold: Courts are more lenient toward this type of legislation when all that is at stake is money. That is a candid answer. I do not like it, but that is a candid answer.

The Chairman: I just want to make sure, because I am the densest of all of us, Mr. Gold.

Mr. Gold: I doubt that.

The Chairman: I promise you. We are talking about two different corrections now. You have answered Senator Angus by saying two things. On the one hand, in your view the bill would be made better by having it deal with ships as opposed to, and exclusive of, people. Secondly, if we changed the nature of the onus and the way it is described in the bill that would make it better. I am presuming that either or both of those would mitigate the bad effects you are talking about.

I want to be sure I understand what you are saying. This is with respect to changing the nature of the onus. What if it said ``A person or a vessel that exercised due diligence to prevent the commission of an offence under this act, other than the offence under paragraph 5.2(a), (c), or (d) or section 53, shall not be found guilty of the offence''? I will read the first part again, ``A person or vessel that exercised due diligence.'' I have removed the verb, other than ``exercised.'' Is that what you mean?

Mr. Gold: Yes, because a court would look at that and see that it does not clearly give the onus of proof. Absent clear indication that you intended to reverse the onus, a court would assume the onus remained on the prosecution to disprove due diligence, and the legislative history would confirm that. The court would look at the fact that that the word ``established'' was deleted, so it would be clear to the court that the only onus is to raise a reasonable doubt. In an ideal world, you could put in a clause saying that the onus is on the prosecution, but that is not common in our style of legislation. I would have to go back and look for examples.

On the face of it, just removing the word ``establishes'' should do the trick. If you did that, the government lawyers — I know they are trying to have a consistent drafting style for legislation — may have developed a style that applies when the onus is on the prosecution that I am not aware of off the top of my head. There might be some slight tinkering with it. What is important is you take out any words like ``establishes'' or ``balance of probabilities.''

The Chairman: You are proposing a large undertaking here because there is a large body of environmental law that has all of these provisions in it. It is by no means a simple thing.

Senator Adams: Thanks for coming, Mr. Gold. I come from a small community. I do not know very much about shipping besides seeing ships coming into our community. I have difficulty with Bill C-15 and how 300,000 birds are killed by ships every year. We have one, two, three ships sometimes coming to the community. It would be different because it is not heavy oil. The heavy oil stays longer in the water. It clears up and goes into the air. Do any shipowners have any other ships coming in and another ship to fill, and that is why they have so much problem in discharging in the water, because from the shore, they fill up with water, and go down to the main ship? I did not see any ships leaking out any oil or something like that. The only reason I can see that we are making law is that the government understands other kinds of ships do that. I live in Rankin Inlet, and a big ship cannot go there. A smaller ship has to go in there and fill tanks in the community. How is that oil discharged without spilling in the sea?

Is the government familiar with that? People just start if they want to clean out the system in the ship. That is why I have a little difficulty with the way some of the people do that.

If you are going back to Europe and fill up with water first, by the time you get back you have to discharge that water from the ship. Does that happen in some of the cases you have dealt with as a lawyer?

Mr. Gold: I have to tell you honestly, I am not sure I am clear on the facts that you are describing regarding the dumping of the oil. I am not quite sure what you are asking me.

I do not profess to be an expert on environmental law. I did read with interest every case I could find, and I read the cases that are described in the Government of Canada website report, which included the figure of 300,000 birds. I read with interest the research that supposedly established all of that, but I do not really know if I can answer your question about the factual situation you are describing, senator.

Senator Adams: We do not have any environmental laws around our waters, except the 200-mile limit, the 12-mile limit or something like that. We do not have a law. The oil is coming in some way from somewhere. The ships coming from Europe are not leaking oil but they are releasing oil into the sea. To me, that is very difficult. Right now, they will be charging the ships or some of the shippers for oil spills.

I think the government has to have a technician. I was a tradesman, I was an electrician. If the government is intending to make a law and charge somebody, they will ask every person they want to charge how did the oil spill into the water, into the sea? If they plan to say, ``You did that,'' they will have to ask everyone the question, right? According to the law, Bill C-15, they will have to ask the crew and the shipowner?

Mr. Gold: They still have to link the pollution to the vessel; there is no doubt about that. After that, yes, they just stand back and everybody else has to speak up and try to prove their innocence. That is what is wrong with it.

Certainly, regarding the pollution problem, it is very clear there are immense issues and many of them require a lot of resources — satellite surveillance, all of those things. Those things are much more important, with the greatest of respect, than what we are talking about. The problem is that they are difficult, expensive and require a lot of effort.

The danger is that people think that you pass a law and that somehow solves a problem, and you do not have to do those other difficult, more expensive things. That is not right.

Senator Adams: What if you could not find anybody on the ship, a captain or engineer or something like that, that you could prove did it? There are many crew members usually on a ship. They have every kind of tradesman. If something goes wrong and there is a spill, they could be charged, but they may not have a clue what kind of equipment they have there.

Mr. Gold: You have raised one of the best reasons against the bill. If you charge all the crew, you are just creating work for lawyers.

Senator Adams: If we lost the case, the taxpayers in Canada would end up paying for it. Is that true?

Mr. Gold: Well, we pay for prosecutions, there is no doubt about that. Every prosecution we lose costs us something, but that is not a reason for —

Senator Adams: No; but if the ship is charged, it would be brought into the dock until the case is heard, which could be one or two months later.

The Chairman: I think Senator Adams is asking about the possibility of, if a ship is charged and found not guilty, the shipowners may, because of the cost to them of having a ship tied up for a long time, undertake to sue the Government of Canada.

Mr. Gold: Of course. Absolutely.

Senator Adams: It could be more than the $1-million fine for an oil spill.

Mr. Gold: You are right. You do not want to encourage prosecutions by making them too easy, because then you encourage more prosecutions that should not take place, and that can be costly.

Senator Adams: Do you remember the gun control bill?

Mr. Gold: Yes.

Senator Adams: Is it working today?

Mr. Gold: I have heard it is controversial.

Senator Adams: I am a hunter and a native. I am a taxpayer, too, the same as you. In our community, the RCMP was hired to do that. They did it and then they quit. We had to hire some other experts, and they do not even know how the gun law works.

One time, a local man was charged with something by the RCMP. The man from Edmonton said, ``You are fired.'' Another person was hired and said ``I have no money to go to the other community to fill out the forms about how many hunters have guns in the community.''

Mr. Gold: I am a city dweller. I do not have that familiarity.

Senator Adams: I am trying to explain to you how the system works. We made the law and it did not work. The person who was the head of the gun registry in Edmonton said, ``Why do you not drive up to the community?'' We do not have a road.

Mr. Gold: The passing of a law does not guarantee anything.

Senator Adams: We have no road and the person says to drive up there because there is no money for airfare. He said he would drive a truck to go up and see it. That is my case.

I think it is the same thing with Bill C-15. The company understands what the law means. We are putting in the law and we do not know how it will work. How many birds will we save every year? The birds are out there 200 miles offshore. I never see birds any more close to the shore. Birds will feed on something in the water, but they do not stay in the water; they have to come back to the land.

The Chairman: We will have ample opportunity a week from today to talk about that among ourselves. We need to question Mr. Gold on his legal opinions while we are here.

Senator Adams: I just wanted him to understand what it is like where I live.

Senator Buchanan: One thing you said that I find extremely interesting is that it would take a very simple amendment to help correct the presumption of innocence and the burden of proof.

When I was in first-year law school, one of the things I learned is that the foundation of our criminal law is the presumption of innocence. It is set out as far back as common law would go, down to the Magna Carta. The presumption of innocence was brought ahead in the Canadian Charter of Rights in 1960.

We brought it forward and strengthened it, as I recall, in the Charter in section 11, the presumption of innocence, subject only to subsection (1). It guarantees the rights and freedoms subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

If I heard you correctly, your opinion is that this bill violates the Charter of Rights and shifts the onus. Given the penalties and the criminalization involved here, no judge would say it fits into section 1. Is that right?

Mr. Gold: That is it in a nutshell, yes.

Senator Buchanan: Senator Adams talked about the North. Senator Spivak talked about the 300,000 birds. I have no reason to doubt that there were 300,000 birds. I know they are not off Nova Scotia. There is no question. I do not know what happens in Newfoundland because Nova Scotia has the same traffic route for international shipping heading into the States. Let us not get into that argument.

There are all kinds of reasons why 300,000 birds would be killed, and not all because of the 5 per cent of ships that are dropping their bilge oil. There are all kinds of other reasons, and I will not get into them here. I have been told by people in Halifax why a lot of these birds die.

We are talking about enacting Bill C-15 to deal with what I think everybody agrees is the 5 per cent of the shippers who are the problem, these international tankers and transport vessels that are not Canadian.

The Chairman: We do not have laws against manslaughter because everybody does it. Most people do not break the law. That is the point.

Senator Buchanan: I am not saying that. I am saying that we are throwing out the baby with the bathwater here by enacting a bill to grab that 5 per cent. There is no question it will be challenged in court by international lawyers, for many reasons.

You made an interesting comment that one small amendment could correct a lot of the problems. The international legal people say the fact that the bill makes no distinction in law between deliberate acts and making a pollution incident an offence regardless of intent on the part of the accused contradicts the MARPOL convention. What is disturbing also to our seafarer colleagues is the criminalization aspect of it. That would correct that also.

Mr. Gold: In effect, it does. It gives the Crown a slight advantage in the sense that the defence has to introduce some evidence of due diligence. In practice, it will not make a difference.

You will have liability based on negligence. I will not go there. There are arguments against that. That is fine. However, by eliminating the reverse onus, you will solve, as I see it, the unconstitutionality problem with this bill.

Senator Buchanan: And we catch the 5 per cent.

Mr. Gold: Yes, you will catch the 5 per cent, if that is possible. There is no guarantee. If you really want to catch them, then invest in better resources for gathering evidence.

Senator Buchanan: Thank you for saying that. The United States uses their Coast Guard, which is the third largest navy in the world. No wonder they are frightened of the United States. We have Fisheries people. Now we will put game wardens out there. I am not saying they are not smart.

The Chairman: They might even be trainable.

Senator Buchanan: They might be. How much money will they spend on it?

A game warden is a person who is out watching for poachers of deer and not someone on a big vessel catching people who are dumping oil.

The Chairman: Forgive me, but saying a game warden is watching for somebody to shoot deer is like saying a pollution prevention officer is watching for somebody to drop garbage in the water.

Senator Buchanan: I am being facetious.

Senator Hubley: The effect of Bill C-15 is to increase the fines in the Migratory Birds Convention Act and reduce the maximum prison term for indictable offences from five years in the current legislation to three years. Imprisonment for summary conviction offences remains the same, at six months. Bill C-15 does not change the penalties in the Environmental Protection Act, which includes the penalties proposed in this bill for the Migratory Birds Convention Act.

I believe the department has made a commitment to increase the funding in support of this, not necessarily because of the bill, but because it sees the need.

Mr. Gold, page 6 of the document from the Coalition of Maritime Groups says that the reverse onus is unconstitutional. You refer to the Sault Ste. Marie case, which you say is not good law because the presumption of innocence is guaranteed in section 1 of the Charter. Then you go on to say that:

Specifically, such a reverse onus was held by the Supreme Court of Canada in Wholesale Travel to unconstitutionally violate section 11(d) of the Charter. To then survive, any such reverse onus must be strictly justified under section 1 of the Charter.

Can you clarify what you mean by ``strictly justified?''

Mr. Gold: At this point, the onus of justification shifts to the government. For example, there have been constitutional cases where the government has succeeded in the justification. There have been cases where they have failed.

The general justification involves looking at research studies, looking at social science evidence, looking at the legislation itself, and considering reasonable hypothetical situations. To use an extreme example, if the offence is doing something without a licence, the justification for reversing the onus is that it is very easy for people to produce a licence if they have one. Therefore, the nature of the issue can provide justification.

There have been many cases under section 1. For example, the reverse onus in drug trafficking was someone who is in possession of a drug had to disprove it was for the purpose of trafficking. The Supreme Court struck that down and said that the government did not prove that that reverse onus was justified. If you look at the Oakes case, you see an example of the types of justifications that the government can adduce. It can be social science evidence or factual evidence. The test under section 1is it must be demonstrably justified in a free and democratic society.

Senator Hubley: The intent of the bill is to solve a fairly significant problem. Is that considered under section 1?

Mr. Gold: Yes. Under section 1 you look at the purpose of the legislation and the government objective. Then you look at how they are doing it. Are the means proportional to that objective? The court would look into the entire problem of oiled birds and study the research that has been provided to you.

I certainly found it very interesting. I have some experience in assessing social science evidence for a variety of cases and I would be delighted to cross-examine the author of this research. All of the research seems to depend upon one person and there are obvious factual errors in the documents that I have examined. For example, in the official government document, the percentage of oiled birds is given as 62 per cent. That is a misreading of the actual figures.

Most importantly, the initial research is the kind that we call ``advocacy research.'' Advocacy research purports to prove a point, but it sets out to prove a predetermined point. One of the hallmarks of advocacy research is the article is written in such a way that objective, necessary information is not apparent. I do not think senators realize that the figure of 300,000 oiled birds is an extrapolation from an actual figure that averages 31 oiled birds per year.

Senator Angus: Thank you.

Senator Buchanan: Thank you.

Mr. Gold: Any expert on research will tell you that an extrapolation from 31 to 300,000 is preposterous in terms of any degree of reliability unless you set out the assumptions and you justify your multiplicands. This article does nothing like that. I would be delighted to cross-examine this person in a court of law about this research. In any event, the purpose of the bill will be carefully looked at by the court; and it is an important purpose. The courts have attached the highest significance to environmental purposes and I do not deny that. No one wants to see a single oiled bird. The purpose will undoubtedly be held to be significant. Will your means be held to be proportional? Will they be held to be no more than is necessary to achieve the purpose? I do not believe that the reverse onus will survive an analysis of section 1.

Senator Hubley: Returning to Bill C-15, we are doing this because there have been failed attempts to bring people in the shipping industry to justice. Why did you mention 62 per cent?

Mr. Gold: It is wrong, because not every dead bird was an oiled bird.

Senator Hubley: That is correct.

Mr. Gold: It was only birds with more than 75 per cent of their bodies so you could assess the oil, and the 62 per cent figure implied all the birds were oiled. The actual figure is 26 per cent.

Senator Hubley: No.

Mr. Gold: I am reading it. The actual figure of oiled birds was 26 per cent, not 62 per cent. The 62 per cent figure sounds much more dramatic and much more horrifying. It may have been an honest error, but with the greatest of respect, if you are to claim a percentage of oiled birds per year, then you should at least get the figure right. As I read the article, the figure was, in reality, just under 26 per cent.

Senator Spivak: That is not the only reason.

Mr. Gold: I am going by what is published.

Senator Hubley: They were able to retrieve 2.5 per cent of the oiled birds' carcasses.

Mr. Gold: I was referring to the Newfoundland study.

Senator Hubley: Yes, that Newfoundland study was done by scientists at Memorial University.

Mr. Gold: In any event, the court will look at all of this.

The Chairman: We are asking Mr. Gold about legal opinions.

Mr. Gold: The court will look at all of this under section 1.

Senator Hubley: My question is what do you think could come under ``strictly justified''?

Mr. Gold: There is a detailed jurisprudence that deals with the analysis under section 1.

Senator Hubley: Thank you, Mr. Gold.

Mr. Gold: All of you would make admirable judges — as good as any I have ever been in front of.

Senator Spivak: I understand the conversation that judges have with regard to Charter cases and how they weigh the public interest. You are quite right, and that would be the justification. They would have to establish that in a case related to the maritime situation. I have one question. Am I correct that you suggested to Senator Angus that it would be better if we were to leave out ``persons?''

Mr. Gold: There is always a Charter issue when a liberty is at stake on a less-than-culpable mind. If you do not have people going off to jail, the courts are less concerned.

Senator Spivak: When Senator Angus asked you what we could do to change this, did you suggest that we omit ``persons''?

Mr. Gold: I was responding to a question from the senator.

Senator Spivak: I understand. Was that you advice to the committee?

Senator Angus: Yes, it is.

Mr. Gold: If you wanted to Charter-proof it, eliminate the personal jeopardy.

Senator Spivak: That is not my question.

Senator Angus: It was my question and that was his answer.

Senator Spivak: I am not asking you the same question.

Senator Angus: You are trying to change it.

Senator Spivak: Mr. Gold, you are well aware that many directors of corporations are held personally responsible. Are you suggesting that in this proposed legislation, which speaks to control, we should not look at persons who are responsible for making decisions on those ships? That is my question, not how to make it Charter-proof.

Mr. Gold: First, that raises a quite separate issue. The formula that you have referenced has begun to appear in legislation over the last one and one-half decades. I recently encountered it in a GST prosecution. Do I like the wording? — absolutely not. Are there Charter issues with it? Absolutely yes. I have not come here briefed on those issues. However, to the extent that you try to impose constructive liability on people by virtue of their office or their status, absolutely there are Charter issues, and the courts have not begun to deal with them because they have not been raised. I was surprised at the breadth of the provision in the GST legislation to penalize human beings by virtue of their office in respect of non-payment of GST. It has been used rarely, if ever. That is one reason that these onerous provisions tend to survive — they are not used and so there is no opportunity for a Charter challenge. Yes, I am concerned. Certainly there are things to be said about imposing liability on people simply by virtue of their status or office as directors.

Senator Spivak: It is not simply a matter of the status. The point is that they have some control and are involved in decisions.

Mr. Gold: No. There is a difference between having control and exercising control. If you are condemning people who ``have control'' you are referencing their status or their office.

Senator Spivak: Then accountability has to do with the exercise of control not the fact that they are in positions of control. That is covered in the bill.

Mr. Gold: I did not come here briefed on that issue, with respect, senator.

Senator Spivak: At this time, you are not suggesting that we eliminate ``persons.'' Is that correct?

Mr. Gold: I am saying that if you eliminate the ``persons,'' it will make the legislation very Charter-happy.

Senator Spivak: That is different. Thank you.

Mr. Gold: That was a good cross-examination.

The Chairman: Mr. Gold, thank you for your time this evening.

The committee adjourned.