1.                   Why are these amendments necessary?   

•                     Public attitudes have evolved significantly since the horse and buggy days of 1892 when the existing animal cruelty laws were enacted.  Today’s society believes strongly that animals should be protected because they can suffer pain, and that animal abuse is a form of violence that should be treated seriously.  The current sentences are not a deterrent to animal abuse, nor are they appropriate punishment for heinous and/or repeated cases of animal cruelty.  

•                     The link between animal abuse, domestic violence and murder has been well-documented in numerous articles and books. Many serial killers, rapists and perpetrators of school killings inflicted cruelty on animals prior to harming people.  In Ontario, animal abuse is considered an indicator of risk considered by police and the courts when determining the seriousness of domestic violence.  It is, therefore, highly appropriate to recognize crimes against animals as serious, violent offences in our society.  Bill C-10b will allow judges and prosecutors to take animal crimes more seriously and impose appropriate sentences that may intervene in the cycle of violence.  

•                     The wording of the current animal cruelty section in the Criminal Code is awkward, applying differently to different species of animals.  Bill C-10b is clear and concise, applying equally to all species of animals that can feel pain.  It also closes some loopholes that currently exist.  For example, the current Code makes cockfighting an offence, whereas Bill C-10b makes the fighting of any animal an offence.  It also changes the criteria for neglect offences to criminal negligence, rather than wilful intent.  The difficulty of proving wilful intent for neglect cases results in many heinous cases being dismissed.  The new provisions require proof of negligence, which is defined as “departing markedly from the standard of care that a reasonable person would use.”

2.            Proportionality of sentences 

•                     It has been suggested that the sentencing provisions proposed in Bill C-10b are disproportionate to those prescribed for comparable crimes against humans.  I refer you to Roger Tassé’s discussion of this issue in the legal opinion contained in your package.  Mr. Tassé clearly indicates that the maximum sentences in the Bill are in no way disproportionate to sentences for crimes against humans.  The maximum sentences proposed in Bill C-10b would be imposed only on the most heinous acts of animal cruelty.  Such sentences are highly appropriate for such violent and immoral behaviour that is often a precursor to violence towards humans.

3.            Impact on animal use industries  

•                     Throughout the lengthy debate on these animal cruelty amendments it has been repeatedly suggested that the amendments will threaten various animal use industries.  It has been suggested that practices such as branding, dehorning, castrating, pest & predator control, and native, cultural or religious practices like kosher slaughter would be made illegal under this Bill.  This is absolutely untrue.  As former Justice Minister Anne McLellan stated last fall, that which is lawful today, remains lawful under this Bill.   

•                     It is important to note what is NOT changing under Bill C-10b.  The key words in the current Criminal Code that make animal suffering a crime are retained in Bill C-10b.  It must still be proven beyond a reasonable doubt that the pain and suffering was inflicted wilfully or recklessly, unnecessarily (in other words not in the pursuit of a lawful activity) and that the pain was avoidable.  The test for criminal liability has not changed.  

•                     Those opposing the Bill claim that it will result in the loss of common law defences as a result of moving the animal cruelty section out of the property section of the Code.  I refer you to the June 10^th legal opinion from Roger Tassé, wherein he concludes that the Bill provides even greater protection for animal users than the current Criminal Code.  Mr. Tassé explains that the defence of lawful excuse is retained in Section 8(3).  He also notes that the incorporation of Section 8(3) into the Bill is extraordinary and leaves no doubt as to the applicability of common law defences.  

•                     In addition, in our submission, safeguards against convictions occurring in unjust circumstances are built into those sections of Bill C10b where they need to be.  For instance the word “unnecessary” is used in Section 182.2(1)(a) and Section 182.3(1)(a) and the words “without lawful excuse” are used in Sections 182.2(c) and (d).  

•                     It is also worthy to note that the Supreme Court of Canada in R. v. Kirzner (1977) 1 C.R.(3d) 138, 38 C.C.C. (2d) 131 has said that Section 8(3) should not be looked upon as freezing the power of a Court to recognize such new defences as they may think proper thus enlarging upon the common law.   

•                     The issue of the defence of colour of right has also been hotly debated.  I refer you to Clayton Ruby’s August opinion, which clearly concludes that “every defence referred to in the former section 429(2) is preserved by section 8(3).”  Mr. Ruby also points out that colour of right has never been applied successfully in any animal cruelty case to date.  It is submitted that this illustrates two realities.   

•                     The first reality is that it has not been applied because it is inapplicable.  Mistake of fact exists as a defence apart from colour of right and where a mistake has been availed of as a defence it has been with respect to a mistake of fact.  To the extent that the mistake of law element of colour of right can be said to exist, it reaches no further than mistakes as to civil law, or more aptly put, private law, not criminal or public law.  In R. v. Watson, a decision of the Newfoundland and Labrador Supreme Court, Court of Appeal Madam Justice Cameron described the defence of colour of right as it relates to law as being the misunderstanding of private rights.  For example, mistake as to the ownership of property or right of possession which may be based on fact or law ground the defence.  Donald Stuart in his text Canadian Criminal Law says that mistakes which have grounded successful claims of right have indeed involved mistakes as to civil law, or as it has been put, mistakes of private rather than public rights.  When colour of right defences have arisen it has generally been with respect to offences such as theft or other offences related to interference with the property of another.  

•                     The second reality is that due to its non application over the decades with respect to animal cruelty offences one is forced to the conclusion that nothing is really being lost.   

•                     Even the Bill’s detractors are forced to concede that the defence is narrow, unusual and unlikely to arise.  Michael Code, in his legal opinion for the Ontario Federation of Anglers and Hunters agrees that it is far fetched to believe that a charge will result in relation to animal cruelty offences as a result of the removal of the colour of right defence.  

•                     It is our submission that in the context of animal cruelty offences, colour of right is just inapplicable.  They are not offences that concern themselves with property rights.  They exist not because of an animal’s property aspects but because animals are sentient creatures capable of experiencing pain and capable of suffering.  

•                     Furthermore, if in the very unusual eventuality that it should become applicable, it is our submission that the Court is not deprived of the right of relying on the defence to acquit an accused who is lacking in moral blameworthiness.  

•                     We say this because of the Kirzner case, already referred to.  We say this also because in our submission the common law defence of colour of right (or claim of right as it sometimes referred to) was never completely superseded by Section 429 of the Code and remains available to an accused person if in the circumstances of the case it has any application, just as is the case with the defence of duress which is provided for in Section 17 of the Criminal Code.  The Supreme Court of Canada in a case called R. v. Ruzic [2001] 1 S.C.R. 687, 41 C.R. (5^th) 1, 153 C.C.C. (3d) 1 stated that the common law defence of duress was never completely superseded by Section 17 of the Criminal Code and remains available to accused persons as a defence.  As with duress, it is our submission that Section 429 never superseded any common law defence of colour of right.

4.            Exemptions  

•                     Many opponents of Bill C-10b have suggested that an amendment should be made to the Bill that will prevent the provisions from interfering with the use of animals for lawful purposes.  This would be highly inappropriate.  As former Justice Minister Anne McLellan explained in response to such a concept, no-one should be explicitly exempt from the Criminal Code.  Police officers, physicians and athletes are not exempt from assault laws, nor are lawyers exempt from laws regarding obstruction of justice.  Those people using animals have a duty to care for them humanely and with respect.

5.            Animal rights groups  

•                     A great deal of furor has been raised about animal rights groups laying frivolous charges against animal users.  These concerns are completely unfounded.  Animal rights groups do not have the authority to lay charges the way humane societies and SPCAs do, usually in conjunction with the police.  As I’m sure you know, the only way they can lay charges is as private prosecutions.  This will be significantly more difficult for them to do under Bill C-10b.  As you are aware, the additional screening process by a Provincial Court Judge introduced in Bill C-15A virtually prevents the kinds of frivolous and vexatious prosecutions so feared by opponents of the animal cruelty amendments.  In addition, as hybrid offences, charges under Bill C-10b will receive much greater scrutiny from a Crown than do summary conviction charges under the current Criminal Code.  

•                     Some opponents have made the absurd and offensive suggestion that animal rights groups have infiltrated humane societies and SPCAs and will use them to lay charges for them.  This has not happened and will not happen in the future.  Humane societies and SPCAs take their statutory mandate to protect animals from cruelty very seriously.  They do not lay charges independently from the police nor without the involvement of the Crown, and certainly not on behalf of animal rights organizations.

6.            Conclusion

•                     On behalf of humane societies and SPCAs and their hundreds of thousands of supporters, I strongly urge you to pass this Bill in its current form.  No further amendments are needed.  Frankly, we are stunned at the misinformation that has circulated about this Bill and led to the paranoia that currently exists among so many animal user groups.  There is simply no validity to the claims about this Bill threatening animal use activities.  Bill C-10b is long overdue and has overwhelming support from the public.  Animals in Canada need better protection and society needs better protection from violent offenders.