JURISPRUDENCE CONSIDERATIONS
AFFECTING THE PROSECUTION OF MARINE POLLUTERS
UNDER THE CANADA SHIPPING ACT

In Canada, there are primarily four Acts under which it is possible to prosecute for a ship-source marine pollution offence. They are: the Canada Shipping Act, the Migratory Birds Convention Act, the Canadian Environmental Protection Act, and the Fisheries Act. There are other statutes which may also be utilized, for example the Artic Waters Pollution Prevention Act for illegal discharges into Arctic waters. For incidents occurring outside Arctic waters, Transport Canada uses the legislative authority provided by the Canada Shipping Act to investigate and prosecute ship-source illegal discharges of oil at sea.

Under the Canada Shipping Act, Transport Canada can lay charges against the vessel itself for the illegal discharge of oil at sea. The prosecution is not required to prove that an offender acted intentionally or knowingly when illegally discharging oil in the marine environment. The prosecution is only required to prove beyond a reasonable doubt that a particular vessel discharged a substance and that the substance was oil. However, if the accused can demonstrate that all reasonable care was exercised in operating the vessel in a manner to avoid the discharge, the court may consider that the incident was a true accident and find the accused not guilty.

Most often, the evidence that is available to prosecute a marine polluter under the Canada Shipping Act is obtained through aerial surveillance or the follow-up inspection of a suspect vessel at port. This evidence may include video footage of a suspect vessel with an oil slick in its wake, the testimony of witnesses on board the surveillance aircraft, and the results of inspections on board the vessel at port, such as oil record book inconsistencies or malfunctioning oil-water separators.

The maximum penalty for a pollution offence under the Canada Shipping Act is $1 million or two years in jail. For a summary conviction offence, the maximum penalty is $250,000. The higher penalties are reserved for indictable offences for more serious or flagrant discharges and where the penalty would likely exceed the maximum summary conviction sentence.

The level of fines for conviction for illegally discharging oil under the Canada Shipping Act is determined by the court and based on jurisprudence. To set a penalty, a judge will normally consider the severity of the offence and precedents that have been set for similar offences in the past. In past years, fines for the illegal discharge of oil in offshore waters ranged around $20,000. Over the years, the prosecution has argued before the courts that the illegal discharge of oil was a serious offence negatively impacting marine bird populations, and that higher fines were required as a deterrent for would-be polluters. Gradually, and over time, the courts have increased the fines based on these arguments. In May 2004, a Newfoundland and Labrador court imposed a $170,000 penalty for an incident related to marine pollution, the highest such penalty ever in Canada. Today, the fines imposed under the Canada Shipping Act for marine pollution offences in offshore waters generally range from $70,000 to $125,000.

In May 2005, Bill C-15 was enacted. Bill C-15 amended the Migratory Birds Convention Act, 1994 and the Canadian Environmental Protection Act, 1999 with the purpose of allowing more effective enforcement of these Acts against marine polluters in waters under Canadian jurisdiction. In order to increase deterrence, Bill C-15 increased the size of maximum fines allowed under the Migratory Birds Convention Act to $1 million. In addition, any vessel of more than 5,000 tonnes deadweight found guilty will face a minimum fine of $100,000 for a summary conviction and $500,000 for an indictable offence.

Transport Canada and Environment Canada have finalized a national Memorandum of Understanding to provide for the joint enforcement of the Canada Shipping Act and the Migratory Birds Convention Act. Transport Canada will continue to investigate ship-source marine pollution under the Canada Shipping Act and to cooperate with Environment Canada.

Investigators institute charges under the Act which provides them with the related authority. Where there are charges under more than one of the statutes identified, the prosecution has the option of proceeding under one or more of the charges laid. The decision to prosecute under a specific Act is made on a case-by-case basis depending on the evidence. In the past, most marine polluters were prosecuted under the Canada Shipping Act as it was perceived by the prosecution to provide a greater probability of a successful prosecution. With the passage of Bill C-15, the prosecution may opt in the future to use the Migratory Birds Convention Act more frequently against marine polluters.

If the Government of Canada takes the illegal discharge of oil so seriously, why is it that we are not getting the multi-million dollar fines that offenders are receiving in the US?

There are major differences between the American and Canadian legal systems. There are different legal traditions and jurisprudence, which greatly affect the levels of fines that are assessed by the courts in each respective country.

The level of fines in Canada for convictions directly relating with the offence of illegally discharging oil compares favorably with the US.

In most cases prosecuted in the US, marine polluters are not charged with polluting per se. They are most often charged with offences relating to the administration of justice (lying to investigators, filing false documents, lying to US Coast Guard Officers, etc.). The large fines that have been assessed in US courts were for convictions of conspiracy or for obstruction of justice. For example, if a ship has a false oil record book, and came to a US port ten times, it could be charged for ten counts under their false statement law. The US Grand Jury system also provides an opportunity for the prosecution to interview witnesses under oath before a trial. Should they provide false statements, they can be charged with obstruction of justice. These are tools that are not available in Canadian jurisprudence for prosecuting most criminal acts.

As a result, Canadian prosecutors must convince the courts that marine pollution is a serious offence that requires more severe penalties as a deterrent. In the case of Bill C-15, Parliament has set a required minimum sentence for illegal oil discharges where the vessel size is in excess of 5,000 tonnes deadweight. The implications of these new provisions will not be fully understood until a court has had an opportunity to consider and apply them.

September 2006