Maritime Pollution in Canada- Extending the Reach and Power of Prosecutors

December 2005

The scope of Canada's maritime pollution laws took a distinct leap forward last May with the enactment of Bill C-15, An Act to Amend the Migratory Birds Convention Act, 1994 and The Canadian Environmental Protection Act, 1999 (c.23, Statutes of Canada, 1995). Not satisfied with MARPOL, UNCLOS and the vessel pollution regime/regulations under The Canada Shipping Act, all administered under the auspices of Transport Canada, the Canadian government has permitted Environment Canada to join the process and at the same time has extended its jurisdiction beyond Canada's territorial sea into its Exclusive Economic Zone (the EEZ covers the 200 mile territory off Canada's coasts). In doing so Canada has implemented severe penalties, stricter enforcement and sanctions reaching beyond the usual ocean-going suspects to include agents and corporate officers and directors. The offence which will trigger this reaction is the deposit of substances that are harmful to migratory birds. 

The initiative stems from the noted, and apparently deliberate, dumping of dirty ballast water in Canada's EEZ off the coast of Newfoundland by vessels en route to the United States. Such dumping has lead to the deaths of numerous sea birds. Vessels trading to the United States, particularly in winter months, pass close to Canada's Atlantic coast where currents bring the oil towards the shores where migratory seabirds congregate. The perception was that Canada had been targeted by rogue vessel operators as a "soft haven" for such activities, given the comparatively very high level of fines for such conduct in the United States and Canada's inability to prosecute pollution offences in its EEZ. With this initiative, prosecution for pollution offences in Canada's EEZ will now be possible with the expectation that rogue vessels will either change their conduct or face the consequences. 

The sanctions include a minimum $500,000* fine for indictable offences and a minimum fine of $100,000 for summary conviction offences (the difference between "indictment" and "summary conviction" is largely procedural. Summary conviction matters tend to be dealt with on an expedited basis). This applies to all vessels over 5,000 tonnes deadweight. The maximum fines are $1,000,000 and/or imprisonment for up to three years on indictment or $500,000 and/or imprisonment for up to six months on summary conviction offences. Vessels in the EEZ may be boarded, stopped, delayed and ordered to port. This is a clear and deliberate departure from the international regimes found under MARPOL and UNCLOS. As migratory birds are found in most of Canada's waters, this initiative should be taken to have wide application. 

While the new legislation targets deliberate and reckless polluters, accidental polluters have been swept up as well. Minimum means minimum, and accidental polluters will be facing a new regime where they will have to establish that they took all reasonable care to ensure that a pollution event would not take place. Subject to arguments under Canada's Charter of Rights and Freedoms, no longer will the onus be on the Crown to prove beyond a reasonable doubt an intention to commit an offence. The Crown will simply prove the event, and the polluter will have to prove its reasonable care defence. Masters and Chief Engineers will face strict vicarious criminal liability for pollution with which they had no personal involvement and of which they may not have been aware. Their challenge will be to demonstrate that they took all reasonable care to ensure that the vessel and all persons on board neither deposited nor permitted deposits of pollutants. Liability is also extended to any directors, officers or agents of the Owners or Operators of the Vessel who directed, authorized, assented to, acquiesced in or participated in the commission of an offence. 

The driving force behind this legislation was the perception that Canada's maritime pollution laws were failing. Although a trend towards heavier fines for pollution offences had been developing in recent years (including two fines in excess of $100,000 in the past two years), this was not seen as a sufficient deterrent at the political level (according to some politicians, such fines were simply treated by the shipping industry as "a cost of doing business"). Larger fines, implementation of substantive minimums, wide reaching incarceration measures, expanded jurisdiction and enthusiastic environmental protection officers keen "to bring the culprits to justice" were seen as alternatives sufficient to satiate the public thirst for tougher measures. 

The result is that Canada now has two bodies of government enforcing maritime pollution matters. The experienced pollution prevention officers under Transport Canada will be working alongside colleagues from Environment Canada who currently lack the necessary maritime experience and resources. This may be a recipe for confusion, miscommunication, delay and heavy-handedness. Much will depend on the level of cooperation between these two groups, the sharing of equipment, resources and intelligence and the level of additional government funding. Currently the Canadian government is working on a Memorandum of Understanding "To Outline the Cooperation of Both Parties in Enforcing Pollution Prevention and Wildlife Legislation for the Protection of the Marine Environment" with the expectation on that this will lead to additional training, resources and convictions. Whatever the outcome of this Memorandum, the fact remains that polluters will be putting the vessel et al at great risk for delays, deviation, substantive penalties and possible incarceration. For the deliberate or reckless polluter this is a calculated risk. For the accidental player this will be a heavy burden. 

As the purpose of the legislation is to rebut Canada's "soft haven" image, one should anticipate that punishments will be severe as the country attempts to move closer to an "absolute zero" tolerance level. While one may question how realistic this really is, Masters and Owners must still not hesitate to report a spill or dirty discharge. Proper and verifiable care must be taken to ensure that oily water separator equipment is well maintained, correctly operated and that discharges are properly recorded. Training and oversight are key, and shore side personnel and the directors to whom they report must be vigilant in understanding the need to be proactive, to demand complete and accurate vessel equipment and operations information and to instill a culture of awareness, competence and transparency aboard vessels and ashore. Use of shore side disposal facilities should be encouraged where necessary to accommodate the discharge of holding tanks in the event of breakdown or otherwise inefficient oily water separator equipment. 

While the sanctions work their way through Canada's Courts and are possibly refined by the usual Charter issues including due process and fairness, proof of the above conduct will become more and more of a necessity. Rightfully, for those who believe that such a departure from the international regimes was necessary, absence of such proof will be very costly.

 

With thanks to Peter J. Cullen of Stikeman Elliott LLP for preparing this article. 

*All $figures are in Canadian Dollars