Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 4 - Evidence for December 5, 2002
OTTAWA, Thursday, December 5, 2002
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-10, to amend the Criminal Code (cruelty to animals), met this day at 11:05 a.m. to give consideration to the bill.
Senator Gérald-A. Beaudoin (Deputy Chairman) in the Chair.
[English]
The Deputy Chairman: I will act as chair for the moment. We have many points to consider, including the budget, which is urgent. Has everyone received it?
Senator Baker: Yes.
Senator Bryden: I propose its adoption.
The Deputy Chairman: It is moved by Senator Bryden, seconded by Senator Andreychuk, that the report be adopted. Is it agreed?
Hon. Senators: Agreed.
The Deputy Chairman: Carried.
We will now continue with the study and our witnesses.
Senator Joyal: I have a point of order.
I apologize to our witnesses, who have been waiting for 20 minutes now. However, I want to register my concern about the agenda for yesterday afternoon and last night.
Yesterday afternoon, we had three sets of witnesses, the first being from the department. When we start the discussion of a bill, we always welcome the Department of Justice representatives and have a thorough examination of its legal and constitutional implications. I was very sorry that we had to cancel the third group of witnesses, and that many of us were unable to attend for the second group because we had previous commitments. I do not know how many senators were around the table when the second group testified, but I have the impression that the room was not as full as it was at the beginning. I understand they started to testify around 7:15 or 7:30 p.m.
My concern is that we entrusted the steering committee with the preparation of the agenda. When we are under time constraints to report a bill because the other place is waiting for it or the government has legitimate concerns, I have no problem with sitting the hours we did last week, from 3:30 to 10:30 p.m., seven hours in a row. There is a limit to what the human mind can absorb in seven hours when trying to understand all the implications and intricacies of those important bills. My concern is that when the steering committee stacks the agenda with so many witnesses, it frames our way of working professionally. We are here to understand all the implications and the long-term consequences of what Parliament is doing. That is it why we are senators. We are not here to rush things. We are here to try to understand the implications and consequences for the whole of Canada.
When the steering committee is considering putting so many witnesses in a single group, I would like to be consulted, as a senator and a full participant in this committee, and informed at the previous sitting, so that I can organization my agenda. Otherwise, we do not pay the necessary respect to our institution and to our witnesses. Yesterday, we had representatives from Alberta. If there is one group that should have its day in court on an issue like this, it is one that represents Alberta. I was not here and was not happy. Some of my colleagues are in the same position.
In future, I would like the steering committee to inform us ahead of time how many witnesses there will be and what the time frame is, especially at the first meeting, when we have representatives of the Department of Justice here.
Senator Bryden raised an important legal point. Some other senators, including you, Mr. Deputy Chair, raised important Charter issues. Our Aboriginal friends had many important points to raise with the representatives of the Department of Justice. I do not think we should proceed this way on bills that serve important objectives. It is never easy when looking at amending the Criminal Code because we are dealing with the freedom and rights of Canadians.
I left the meeting yesterday quite frustrated with the context in which we are working. Senator Bryden himself — and I believe him to be a supporter of this approach — said, when we had our first organizational committee, ``Let us organize our work in a humane way.'' That is the first thing we should be doing. I am not an intellectual machine. I might be slower than average, but I want to be sure I understand the implications of a bill and pay fair respect to witnesses whom we have invited here.
Senator Stratton: I completely support you, sir. The issue here is that one's brain is fried after four hours. I do not care what you say or what you want to do — if a meeting starts at 4 o'clock, it must end at 8 o'clock. You cannot go beyond that and expect your brain to function at any certain level if you want to pay attention and listen to fairly intricate arguments that are being made.
I went up to the Chair last night and warned him, at about 6 o'clock: ``This is going on far too long for the number of witnesses that we have. You cannot do this. You must speed the process up.'' That did not take place. I understand it could not take place. However, if you do not know or cannot estimate the length of time needed for a Department of Justice witness to testify, who was here close to four hours, that should be it. It is inhumane to ask other witnesses to come here, sit in the chairs for however long, and then be sent away without being heard. That is irresponsible beyond measure, and very rude.
We must try to estimate a time appropriate to each witness and tell the group of witnesses that they have 'X' minutes to present, we will spend one hour or three-quarters of an hour, and that is it. If it is someone from the Department of Justice and we know it will take a longer period of time, we should allocate four hours for that. If it finishes early, so what. By God, I will not put up with it, because I had to leave, too. There is no reason on God's earth that we need to put with this week after week after week. I will refuse to do it, and I will raise the issue in the Senate.
Senator Bryden: I told you!
Last night, we had the perfect example. I believe that we should be able to establish a standard period of time for our committee meetings. If you look at the schedule of committees, there is a time allocation. I was rushing, as Senator Stratton was, from Internal Economy Committee, which was from quarter to 9 to quarter to 10 and ran over a little, to be here. It is anticipated that a normal committee meeting would last two to two and a half hours. It is my belief that if there is reason why a committee is likely to go beyond that time period, we need to set aside additional time and advise senators, because if they cannot play their role for four or five hours, they need to get someone knowledgeable to substitute. It must be done for all the reasons that were mentioned, including out of courtesy to the people who are here. Almost always, when we have government witnesses in front of us, then that should be it.
Senator Stratton: Yes.
Senator Bryden: Then we are not concerned about rushing in order to get through them and we do not have to keep other witnesses waiting.
Senator Adams: That is why I split the bill in the motion in the Senate. I dealt with our leader and said, ``We do not have to rush Bill C-10B. I do not think it will pass before we adjourn. We expect to come back after Christmas and work at it again. That is what I told my leader. I do not want to see it passed next week because there are a lot of other people who are interested in Bill C-10. Right now, I do not expect it to be passed before we break for Christmas.
The Deputy Chairman: I could not agree more.
Senator Joyal: You are a member of the steering committee. You are the one who made the decision.
The Deputy Chairman: Yes. Obviously, we should have done it before. I agree, first, on the point that has been raised. I think all of us around this table agree. Therefore, the point of order is very well taken.
We will continue with the witnesses. We will hear the panels, but we will finish in time for the 1:30 Senate meeting this afternoon.
With us this morning are Ms. White and Terrence O'Sullivan from Animal Alliance, and Ms. Bisgould, counsel for the World Society for Protection of Animals.
We are running a little late. Would you please summarize your brief in six or seven minutes.
Mr. Terrence O'Sullivan, Counsel, Animal Alliance of Canada: I am a partner in a law firm in Toronto called Lax O'Sullivan Scott. I am pleased to be here today to make this presentation on behalf of the Animal Alliance of Canada in support of its position that the Senate should pass without Bill C-10B without further amendments.
The Animal Alliance of Canada is a national non-profit animal protection agency that seeks to promote respect for all species of animals and the environment. It has 20,000 members throughout Canada. Perhaps interestingly, I am not one of those members. I have left my usual litigation beat, which is on Bay Street in Toronto, to be here today with my 10-year-old daughter, who is behind me, because my family and I believe in this proposed legislation. We believe in the need to protect animals from unnecessary cruelty and violence. I consider it an honour to have been asked to make this presentation.
I am not just a Bay Street lawyer. I am also a weekend farmer. Every weekend, we go to our family farm north of Toronto in the Hockley Valley, where we raise horses and cattle, as well as dogs. I have taken part in the gelding of colts, and have, unfortunately, on occasion had to put animals down. I have been practicing law for 31 years, and I have read this proposed legislation carefully as well as many of the briefs that have been filed in support of and opposition to it. I believe that this proposed legislation does not criminalize any of the activities in which I have taken part on my farm, nor those in which I will take part in the future.
It is no secret that my client would have preferred stronger legislation, but we acknowledge that this bill balances the concerns of many groups while recognizing and highlighting the important fact that the gratuitous and unnecessary infliction of harm on animals will no longer be tolerated.
The Department of Justice gave a presentation yesterday, and it will help to look briefly at the bill, and in particular, the two clauses under consideration, 182.2 and 182.3.
My intention in going through the bill briefly is to try to disabuse you, as clearly and unequivocally as I can, of the notion that any activity, whether it be in animal husbandry, farm practices or research, which is not criminal today will be criminal tomorrow. It just is not so. I will try to explain briefly in three or four points why that is, and I would be happy to take your questions afterwards.
The proposed section 182.2 says that:
Every one commits an offence who, wilfully or recklessly...
Does any of the numerated acts set out therein. That is a clear description of criminal activity.
Clause 182.3 deals with offences where there has been no intentional infliction of pain, but where, through criminal negligence or recklessness, an animal has been injured. Importantly, for your purposes and the purpose of this proposed legislation, negligence is defined in 182.3(2) as meaning.
...departing markedly from the standard of care that a reasonable person would use.
I will come back to that in a moment.
That is not the civil standard of negligence. It is, as I will describe to you in a moment, the criminal standard of negligence.
Just as people are held criminally responsible when they are criminally negligent in the operation of a motor vehicle or a boat, the same standard is at work here.
At least three aspects of this proposed legislation have engendered a lot of discussion — some of it, with respect, uninformed. They are these.
First, what is the mental element required for these offences?
Second, are any defences that are available to people today lost as a result of this proposed legislation?
Third, is there a prospect of otherwise law-abiding citizens being hounded by animal rights activists through private prosecutions?
I will take each of those three points in turn, and that will conclude my oral submission.
Let me turn first to the mental element of the offences.
The current legislation, which is in Part XI of the Criminal Code, says:
WILFULL AND FORBIDDEN ACTS IN RESPECT OF CERTAIN PROPERTY
That is where that section starts.
It currently applies that section to animal cruelty offences. Section 429 says that:
Every one who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part, wilfully to have caused the occurrence of the event.
The importance of that section for your purposes, if you look at it and understand it, is that there is a deeming provision. The new bill, on the other hand, under clause 182, is more favourable to the accused than the current legislation because it eliminates the deeming provision. It says, in clause 182, you must do it wilfully or recklessly; there is no deeming language. You do not have to worry about getting trapped in a 70- or 80-word paragraph that deems certain activity criminal. To that end, it is a cleaner, neater, more accessible and more easily understood piece of proposed legislation.
With respect to clause 182.3 and the offences listed therein, ``negligently'' is now defined in a way that makes it clear that we are talking about criminal and not civil negligence. Criminal negligence is defined in section 219 of the Criminal Code. There is a case under that section called R. v. Sharp where the Ontario Court of Appeal, in dealing with an allegation of criminal negligence in the operation of a motor vehicle, said that criminal negligence involves a ``marked and substantial departure from the standard of a reasonable driver.''
Exactly the same language was used in 1993 in the case of R. v. Naglik before the Supreme Court of Canada. That concerned an alleged offence of failing to provide the necessaries of life to a child when that failure endangers the life of the child. The court, in trying to interpret what standard was being departed from — there has to be a standard established before someone can be said to depart from it — said that the law of criminal negligence punishes a marked departure from an objective standard of care. ``Marked departure'' is the language used in this section. It is clearly the criminal and not the civil standard. Quite frankly, and with respect to those who would contend otherwise, you could not possibly succeed on a legal argument that that was the case.
Are there defences that exist today that will be unavailable to an accused if this proposed legislation is passed? The answer to that is no. Under section 429, which applies to the wilful and forbidden acts in respect of certain property that I read to you, it says:
No person shall be convicted of an offence...where he proves that he acted with legal justification or excuse and with colour of right.
It says ``and with colour of right,'' although the courts, over time, have treated that as ``or colour of right.''
Let me deal with legal justification or excuse. If a person acts with legal justification or excuse, which includes mistake of fact, then that is a defence to a charge of criminal intent and criminal activity. I will give you a couple of easy examples. Someone breaks into my house. I have a reasonable apprehension that this person will do harm to my family and me. I use force to repel that person, not knowing that it is my drunken neighbour who has wandered into my house because the front doors look the same. That is a mistake of fact, and if it is a reasonably held belief, then the violence I inflict on that person is not a crime.
Legal excuse or legal justification means that if you act with an honestly held belief, in civil law, that you can do what you are doing — many of the activities with which people who are interested in this bill are concerned, whether it is animal husbandry or scientific research, are regulated under a number of statutes and regulations — if you act in accordance with those statutes, it is clear that you have the defence of legal justification or legal excuse.
Are those defences lost in this proposed legislation? The answer is clearly not. Section 8(3) of the Criminal Code provides that every common-law defence or every circumstance that allows you to plead justification or excuse continues in force, except as they may be altered by or inconsistent with the new legislation. Not only is that not the case here, the proposed legislation specifically incorporates section 8(3) into it by reference.
There are two cases that make this point as well. The first is R. v. Holmes, where the Supreme Court of Canada in 1988 held that all general or common-law excuses or defences continue to be available to an accused unless specifically excluded by the language, which is not the case here. Then the Ontario Court of Appeal, in the decision of Ruzic, followed Holmes and dealt with, importantly for your purposes, what constitutes lawful excuse. They said lawful excuse includes all —I underline and emphasize the word ``all'' — defences that the common law considers sufficient reason to excuse a person from criminal liability.
Therefore, all the common-law defences that are in existence today are preserved.
The Chairman: Mr. O'Sullivan, could you wind up your presentation? We have others in the group to hear from.
Ms. Liz White, Director, Animal Alliance of Canada: I am not speaking, so could you give an extension to Mr. O'Sullivan?
The Chairman: We have already given a fair amount of leeway. If you could please finish.
Mr. O'Sullivan: I will make two points on colour of right and private prosecution.
Colour of right is clearly a property concept. Don Stuart, in his leading text, Canadian Criminal Law, says that colour of right is a defence that is associated with a property offence; it is a property law concept. It is most commonly asserted as a defence to criminal activities where, for example, someone takes something, acting under an honestly held belief that he or she has title to this property.
Colour of right sometimes involves a mistake of civil law; it does not involve a mistake of criminal law. Colour of right has never been used successfully as a defence to a charge of animal cruelty. One case in 1975, Comber, referred to in the paper, involved someone who put a dog down because he mistakenly, but honestly, believed that the dog was injured and would die. It was asserted that that was a colour of right defence, when in fact it was a mistake of fact defence. In 110 years of this legislation, there has never been a colour of right defence associated with a charge of animal cruelty.
The final point is private prosecutions. There will not be any. In 31 years of practice, I have never seen legislation like the amendment to the Criminal Code that provides for a hearing before a justice of the peace or a judge, involves the Attorney General, involves the calling of evidence and a judicial determination before a private prosecution can go forward. If the evidence is so clear, at that point it will go forward, and if the Attorney General has been involved, as he must be under the bill, then in my view, it is almost inevitable that the Crown will take over the prosecution. Therefore, there is no prospect under this proposed legislation of people being harassed by frivolous private prosecutions.
Those are my submissions.
The Chairman: Thank you, Mr. O'Sullivan.
Before we move to questions, let me apologize to the witnesses and to my colleagues for being late. However, well over an hour ago, I was witness to an accident not five minutes from Parliament Hill. I do not know if you have ever been in that situation and tried to extricate yourself from it with any kind of efficiency, but believe me, it is not easy. I thank Senator Beaudoin for taking the chair and commencing the hearing, because we do have another panel from which to hear.
Ms. Lesli Bisgould, Counsel, World Society for Protection of Animals: I am extremely grateful to all of you for the opportunity to be here. Thank you. I am here today to speak on behalf of the World Society for the Protection of Animals. It is a Canadian charity. It is also part of an international organization with offices around the world. WSPA is the only animal welfare organization that has consultative status at the United Nations and the Council of Europe.
That is all I will say about WSPA.
I would like to get down to the issue in my remaining 14 seconds. Although there is little time for anecdotes, I will start with one anyway.
Several months ago, I spent three full days in a provincial courtroom in Toronto at the sentencing hearing for Jessie Power. Some of you may know of him. He was the young man who, with two friends, collected a cat and then videotaped themselves hanging the cat from a noose, beating, punching and stabbing it for 17 minutes and removing various parts of the cat's body. It was quite a gruesome scene. The Toronto police with whom I spoke, and you can imagine what they see working in downtown Toronto, told me that it was the most difficult video that they had ever had to watch. Many left the room. They could not take it.
In the courtroom, you could not hear the cat crying despite the things that were being done to her because of the cries of the women and men in the courtroom and the sound of people fumbling for Kleenex. It was a singular experience that I will not forget.
The maximum sentence that Jessie Power could have faced for his clearly intentional, absolutely gratuitous, unbearable violence — I could not watch it — was six months in jail and a $2,000 fine. As we know, that is what the existing legislation says.
Since that case just several months ago, the news has been full of ongoing stories. A week-and-a-half ago, in an affluent suburb of Toronto where I live, some people put gasoline on a cat, lit it on fire and threw it out of a car. Just a day or two ago, someone put kittens in an orange crate in the middle of a highway somewhere in Winnipeg.
These stories go on. They go on because people in Canada know that we do not take these sorts of crimes very seriously. That is the problem.
The need for a change in the law is obvious. You will have heard more times than you want to how this law is 110 years old. You know that by now, I am sure.
Darwin died 110 years ago. Darwin first introduced to us the idea of evolution and that we are all animals, all connected and capable of feeling pain. What we had previously believed as a society, and what our laws today reflect, is that animals are just machines, which is not, in fact, true.
It is time for us to move into the 21st century. I believe that that is what this bill does.
No one thinks today that animals are machines. I would say, if I could speak for them on this point, that people who are involved in scientific research on animals — the farmers and the hunters — know this and will admit it before anyone. Of course they are not machines. They are creatures.
If the need for change is so obvious, why then is there vociferous opposition from certain industry groups that use animals in their work? I believe I can answer that question.
The reason is that nobody in the animal industries has ever in the past been required to pay much attention to what the Criminal Code already says about animals. We have existing provisions. All of the concerns that have been raised would have been raised if the existing law were being introduced now, in my respectful opinion.
These laws have been around for a long time. However, because nobody in these associations has been charged in 110 years, because they do not know anyone who has ever been charged, because private prosecutions have not been laid — in the eight years that I have been the only lawyer in Canada with an exclusively animal protection practice I have never laid a single private prosecution — the animal industries have never had to think about this. It is only now that they must turn their minds to what the Criminal Code actually says. They are starting to worry about any number of possible interpretations.
However, there is case law. There is a body of case law that already establishes profound limitations on the way we interpret legislation. This is case law that will continue to apply under the new law, because the provisions it interprets are the same. Specifically, I reference Ménard, about which I could speak during questions if you want to hear more. Chief Justice Lamer decided it when he was the Chief Justice of the Quebec Court of Appeal.
The amendments do obviously make a few changes. That is why animal protection groups, and endless numbers of people, individuals, across this country, are working hard for it. You are probably wondering why, if it does not change much, these people want it so badly. The reason is that it takes such a long time to make legal change, as the senator mentioned earlier, particularly when we are talking about the Criminal Code. It is fundamental that we ensure people's rights are protected. What is jeopardized when you pass criminal laws is serious.
There are a few new elements. We are particularly concerned about the new enforcement mechanisms. These are very important. It is important to be able to prevent someone who has a history of demonstrated animal abuse from being able to do that again. That is an important provision in enforcement.
There is a new provision to give special protection to law-enforcement animals. That is brand new.
However, by and large, these amendments fix what is somewhat confusing in the existing legislation. Some laws applied to domesticated animals; some laws applied to wildlife. They have clarified that here. They have spelled out the negligence issue and the causing suffering issue. It is cleaning up a little of the uncertainty and adding a couple of new elements.
The people of Canada want this proposed legislation. I know that you of all people know this because I know how many letters you have been getting. The people want this law. I believe that they have made that clear to you. I would hope and urge that we will not resist taking a very important step to protect animals because many people have unfounded concerns regarding risks that do not exist. There is protection in the proposed legislation.
I encourage honourable senators to take a close look at what the law actually says, and to bear in mind that we already have a law on the books. Upon hearing the concerns of industry, question how these amendments expose them to risks that do not already exist, whether you like these amendments or whether you throw them in the garbage entirely.
I thank you very much for your attention, and I would be pleased to answer any questions.
The Chairman: Thank you very much.
Senator Beaudoin: I have a question of precision.
You say that the deeming clause that used to exist is no longer there. That is the first point.
Second, you say that it makes it clear that we are talking about criminal negligence, not civil negligence. Obviously, there have been many cases on the distinctions between criminal negligence and civil negligence.
Do I then conclude that you are satisfied with what has been stated in the bill on that point?
Mr. O'Sullivan: Yes, that is correct. In fact, the language in the section, ``departing markedly,'' is from the Supreme Court of Canada decision in Naglik on what is meant by ``criminal negligence.'' There is no question in my mind at all that this is criminal negligence and not civil negligence.
Senator Beaudoin: There is obviously a difference between the two. However, I would like to know from you if the way it is expressed in the bill is sufficient. You agree with this?
Mr. O'Sullivan: That is correct.
Senator Joyal: I will submit to you a reasoning, and you tell me how you react to it.
The fact that the definition of ``animals'' is removed from the property section of the Criminal Code and is established as standing on its own could, in a way, explain why the defence of section 429.3 is removed. Section 429 is a defence under property.
Since the animal is no longer considered to be in the property definition of the Criminal Code, i.e. 429 is removed, how do you react as a lawyer to this question?
Mr. O'Sullivan: That is a very good question, and one that I dealt with a little in the paper, if you have a chance to read it.
There are, I believe, 30 sections in Part XI that deal with property matters under the Criminal Code as it presently exists. Animals were put in there for some historic reason, because people treated them as property.
Section 429 applies to things such as mischief and arson.
For example, you can burn down your house, but you cannot burn down someone else's. However, if you thought it was your house and you had a reasonably held belief, perhaps it was not a crime.
It was clear that those sections could not apply to everything in there. In section 11, for example, there is the crime of doing harm to the home of an internationally protected person — for example, an embassy. There is not a colour of right defence to that.
Removing animals from the property section, and Ms. Bisgould could help me on this, and into the current clause does two things. First, as I believe properly it should, it deals with criminal conduct relating to animals as a stand-alone concept, removed from the confusion associated with having it in a larger 30-section group dealing with a multitude of property offences.
There are doubtless political reasons for that as well. I am a lawyer. I will tell you that I believe that legally, it makes it clearer, more distinct, easier to understand and easier to conduct yourself. This proposed legislation is a model of clarity. You will not have anyone coming before your committee who will say that anyone who does anything that meets the language here should not be criminalized. You will not find anyone coming before you to say ``That is exactly what I do to my animals today.''
I believe that they have taken the historically confusing treatment of cruelty to animals in a property law context and moved it into something that is easier to understand, prosecute and defend, because of the clarity of the language.
Senator Joyal: You said that it had two impacts. The two are included in your answer?
Mr. O'Sullivan: Yes.
Senator Joyal: Animals are removed from the property list. I do not actually have a dog, but let's suppose that I do. It is my property. I have paid for it. It is registered.
Mr. O'Sullivan: I own four horses.
Senator Joyal: My ownership of the dog is fully legal, in other words. This dog is 14 years old and has lived a good life. It shows some weaknesses, and I want to get rid of it. I strangle it. I do not have a gun. I do not have a licence and I do not want to buy a gun. I decide to strangle it. Could I be accused under this proposed legislation?
Mr. O'Sullivan: You might well be, on two bases. You might be accused on the basis that there was no reasonable apprehension or reasonable belief on your part that the animal needed to be put down.
Second, the method used to dispose of or dispatch the animal was not appropriate. I believe you might well be prosecuted.
Whether you do or do not own an animal, just as whether you are or are not the parent of a child, it does not give you a property licence to inflict gratuitous harm on the animal or the child. That concept has evolved over time, first with respect to children, which is easy to understand, now perhaps with respect to animals. There is no reason to strangle a dog. We put dogs down humanely.
When a court came to measure that conduct, it would look at what reasonable options were available and say, ``Was that unreasonable in the circumstances?''
Let us say that you are out in the bush. Your dog is injured, perhaps in a fight with a bear, and you do not have any method to dispatch your dog. You strangle it in those circumstances because you do not want it to suffer. No one will criticize you for that.
These are fact-dependent situations. In my example, I do not think you would be charged. In your example, you would be at risk.
Ms. Bisgould: Do you mind if I answer that question, Senator Joyal?
Senator Joyal: Please do, because my following question will be directed to you.
Ms. Bisgould: I agree with what Mr. O'Sullivan is saying. It is important that we realize that he is talking about the possibility of being charged depending on the method one chooses. Even though animals are being moved out of the property section of the Criminal Code, they remain property. There is absolutely nothing in the bill that affects a person's right to own an animal.
It is well established in law that you can do whatever you want with your property. I can chew my pencil. I can rip it up. Until I pick it up, throw it at you and try to hurt you with it, it is none of your business what I do with my property.
Senator Joyal: It depends; if you swallow it in order to commit suicide, then you fall under the Criminal Code.
Ms. Bisgould: We will work on some scenarios later.
Animals will continue to be property. The law is very clear that you have the right to do what you want with your property. More specifically, you have the right to kill your animals.
All of the cases that have looked at animals being killed have looked at the method. Entire herds of cattle left to starve because the owner decided to go on vacation would be wrong. It is methodology. It is whether you have an excuse for what you did.
The Comber case, to which Mr. O''Sullivan referred, is the only one in which anyone tried to use colour of right as a defence in an animal cruelty charge. Mr. Comber killed his dog. The mistake of fact that he made was that he believed that the dog was actually in a state where it had to be put down.
Senator Joyal: Rage, for instance.
Ms. Bisgould: He was acquitted, because it is legitimate to put your dog down. It will continue to be legitimate after these amendments. It is the methodology that is of concern.
Senator Joyal: I would like to come back to your statement. This will be my last question, and I know we are under a time limit.
You said that the people of Canada want these amendments. I am always cautious when someone talks about ``the people of Canada,'' because people think differently on issues.
You must have the social infrastructure to take care of animals. I was involved in one society for the protection of animals, the SPCA, in the old days in Montreal.
Ms. Bisgould: It is still there.
Senator Joyal: They almost went bankrupt at one point. I was involved in trying to hold a benefit auction to save them. They could not get any money from governments or the United Way. They had to try to raise money by themselves.
As you said, if we are to upgrade the social behaviour of Canadians, industry and all the other groups in relation to animals, where is the social infrastructure to support that? We cannot legislate behaviour that is not supported by the social infrastructure.
That is as important as being good to animals. At the same time, we cannot leave the social infrastructure as it is now. We know that money is required to pick up the cats from the streets.
Suppose that someone has five new kittens. They put them in the car. They go to the countryside and let them go into the wild. According to this bill, that would be negligent.
Ms. Bisgould: Speaking of good questions, I think you have probably raised the best question there is on this subject from the perspective of those who are concerned about protecting animals.
However, we must be very careful in this exercise to remember the limits of the realm in which we are operating. We are talking about the criminal law. There are any number of legal elements and other social infrastructures that apply to animals. You have hit on a major one, humane societies. There are advocacy groups such as those I represent today. There are also grassroots groups forming in communities to find foster homes for animals. Many of you may have received calls pestering you to take in a dog or a cat looking for a home, because citizens come together and try to solve the problems when they see that the infrastructure is not there.
There are lots of aspects to it. People are working to improve all of those. They all need improvement, I could not agree more. That all happens together. That is how society changes, is it not? We work on one little thing at a time. We are focused here today on criminal law, and what it can or cannot do.
There are animal welfare concerns when animals are used in industry. Nobody denies that. Everyone at this table would agree that they have concerns. However, that is not criminal law. That is the regulatory law overseeing farming or research. That is where you talk about those things.
Unfortunately, society is segmented, so everything has to change. There is a move among humane societies to acquire better funding in order to become more effective at what they do. In part, the proposed legislation tries to help with that. Humane societies will take in horribly hurt animals, run up thousands of dollars in vet bills, and then have to go to their supporters asking for more money.
This bill allows for that cost to be paid by the person who commits the crime, so that humane societies can be reimbursed. We are giving them a little help here and then leaving them to push within their own social realm for progressive change as well.
Senator Adams: In the North, we do not call our dogs ``pets''; we used to call them ``working dogs.'' There are fewer and fewer working dogs every year. Dogs are now used mainly for sports such as dog team racing. Female dogs sometimes have 10 or 12 pups, and we could not afford to feed all of those. We have to destroy some of the pups because we cannot afford 30 or 40 dogs when a dog team is made up of only 5 or 6. Sometimes we will call others in the community and offer pups to anyone who wants to take them.
If dog team owners or hunters are caught destroying extra pups, will they be affected by this bill?
Mr. O'Sullivan: That activity has not been criminalized to this point, and that situation does not change with this proposed legislation. When people have more dogs than they can feed, dealing with them humanely is, in my view, something the criminal law contemplates, rather than allowing them to starve, for example, or be turned out into the wild.
You have given a good and practical example of the kind of conduct that people do not consider criminal now, if it is done humanely, and it is not criminalized by the current legislation.
Senator Stratton: With regard to private prosecutions, when a determination is being made as to whether a charge should be laid, does the individual under investigation have to appear before the prosecutor and present his or her side of the story?
Mr. O'Sullivan: No.
Senator Stratton: Not at all?
Mr. O'Sullivan: The burden is on the informant. If I want to lay a private information, I have to go to a provincial court judge or a specially designated justice of the peace. I have to give the evidence that I say supports the laying of a charge. I then have to give notice to the Attorney General, who has an opportunity to hear the evidence and make submissions to the justice of the peace or the judge as to whether a charge should be laid and, if he wishes, cross- examine my witnesses or lead evidence himself. There is absolutely no burden on the person who is the subject of the information. He does not have to be there and the process does not contemplate him being present. I suppose someone might ask him to be there, and he could attend if he wished.
This kind of trial is brand new in the history of this country. As I said in response to an earlier question, I cannot imagine a private prosecution going through. If there is so much merit to a case that the judge believes a charge should go forward, it is hard to imagine that the Crown, which must already be involved in the matter, would not choose to lay the charge itself.
In addition, if somehow one gets through that series of hurdles, the Attorney General retains the ability to take over and stay a prosecution. I understand the genesis of the concern, but the prospect of people being harassed by private prosecutions is non-existent.
Senator Stratton: If I was under suspicion, it would be in my best interests to be there with a lawyer to protect myself, and there would be costs. One would not let a threat of prosecution proceed without protecting one's interests. Is that not logical?
Mr. O'Sullivan: You would have the option of asking the judge or the justice of the peace to hear you, but it is not required that you do that. It would be up to the individual company or person to make that choice.
Senator Stratton: I do not agree. If you are going to protect your interests, you have to be there with a lawyer.
Mr. O'Sullivan: No. If you were my client, I may advise you that I would rather you not say anything now that is not protected, in the event that they eventually do charge you. You have the right to remain silent and they have to prove the case against you. The best strategy may well be not to take part. There may be other situations in which one would come to a different view. It is very fact-dependent.
Senator Stratton: Exactly, and I would think that you would have to have someone there to witness what was going on.
Senator Bryden: Ms. Bisgould, you said that you are here because we are dealing with a legal issue involving the Criminal Code. There are other roles that the society you represent plays. I believe you said there are advocacy groups, of which your society is one?
Ms. Bisgould: The World Society is an advocacy group, yes.
Senator Bryden: I read in the newspaper about an animal advocacy group that tried to place advertisements in newspapers in Vancouver, but the ad was rejected by most newspapers, I believe. I read that the ads, not very subtly, compared the killing and butchering of pigs to the butchering and dismemberment of the women's bodies that were found on the pig farm near Vancouver.
Was that an associate of your group?
Ms. Bisgould: That was People for the Ethical Treatment for Animals, which is an American, not a Canadian organization. They have no presence in Canada. All the Canadian organizations and individuals that I know were irate when they heard about that. They were offended.
I personally wrote a letter, which is now broadcast on the Web, to that organization in which I itemized a number of reasons why that was absolutely the wrong thing to do.
In fact, they had to solicit comments from Canadians on their Web site because they had so many complaints stating that this is not the sort of thing that is done in Canada.
Senator Bryden: Unfortunately, many people lump animal advocacy groups in with people like that, and they are referred to as ``those animal rights people.''
Ms. Bisgould: No, they are not. You are being polite.
Mr. O'Sullivan: It is worse.
Senator Bryden: Some of them might even be Canadians who send their money to this group. I understand they have another advertisement running somewhere in California at the moment that is having some of the same difficulties.
Because the world is getting smaller, we hear via the Internet and television about the animal rights activities that occur in Britain, France, and sometimes in Canada. In the name of animal rights, entire mink farms are wiped out, for example, or bombs are put in laboratories that use animals.
These are some of the concerns that you see reflected by animal husbandry people, by trappers, by people who work in the fur industry, and now people who work in the fishing industry.
I have a great belief in the good judgment of our courts, but one of the things that cause concern is the definition of ``animal'' in this bill. It reads:
``animal'' means a vertebrate, other an a human being...
That is fair enough.
...and any other animal...
How ``animal'' can mean ``and any other animal'' is difficult for me to accept as a drafter of legislation. How you can define a word by using that very word in your definition? That would seem to me to beg the question. It states:
...and any other animal that has the capacity to feel pain.
Who decides, in this definition, whether an animal has the capacity to feel pain? For example, when you boil a lobster, it thrashes around in the boiling water quite a bit. It appears as though it feels pain, although it does not take long to die. That is why I ensure that the water is very hot. Does an oyster have the capacity to feel pain? Therefore, is an oyster an animal?
I know that that is going far out, but believe me, not nearly as far out as our advocacy person who wants to put the advertisement in the newspaper in Vancouver.
There have been suggestions, to continue my lobster example, that it would probably cause less pain to the lobster if it were killed with a stiletto through the head. That would probably dispatch it quicker, and it still would be fresh enough that you could immediately put it in the boiling water.
Consider the farming and feedlot industries. I come from a farm that had horses, pigs, and so on. That was the only way we had to make a living. It was not a hobby farm. I have tried a hobby farm since and it is a wonderful way to lose a pot of money.
Mr. O'Sullivan: I understand.
Senator Bryden: You would support that, I am sure. The point is that I castrated little pigs. You pick them up in your hand like that, take a sharp knife and castrate them. I killed chickens running down the line; they are tied up by the legs. In those days, we killed them by holding their neck like this; when they opened their mouths, you put a very sharp knife inside the throat and cut the jugular.
Obviously, there are much more humane ways to do some of these procedures. One includes anaesthetizing the animals, but such procedures are much more expensive. It is difficult for the feedlot owner or the chicken farmer to pass those costs on to you and me as consumers, saying it will cost 50 cents more a pound for your chicken because an anaesthetist or a shot to knock all of these chickens out was used. Perhaps they do this now; I do not know. I have not killed a chicken for a while.
These are some of the things about this definition of ``animal'' that cause concern to commercial people. I have not even got to a discussion of what may happen when we consider whether it is best to kill a seal or a fish with a rifle or a spear. If you catch a fish on a hook, you are a sports angler. If you do it commercially, you can use a net or a spear. I have speared fish before.
How do I respond to people who call me and say, ``John, you have lived on a farm. You are from here. Will this be abuse?'' Will we be in a situation where people from Rockliffe, Forest Hill, New York and Malibu Beach, with huge amounts of money, say, ``This is an animal and we are prepared to take this all the way to the Supreme Court of Canada to prove that it feels pain''? You will have to use lasers and tubes and suck that oyster out of its shell. Do not break it.
I am getting carried away. I apologize. Do you have a comment?
Ms. Bisgould: You have asked many important questions. I will try to impress you by giving a brief answer.
You mentioned what is happening in the United States and groups getting lumped in together, and then you got into the meat of the proposed legislation before us.
There are many animal rights issues around, but we must be careful about what this is. This is the criminal law. This has absolutely nothing to do with animal rights. My secret wish is that it did, but this is not about animal rights at all. This is the criminal law. This is about improving the welfare of animals that the law permits us to own and use. The law already exists. It will continue to exist with or without these amendments. Let us be clear about that.
However, you are right about why industry is getting upset. They are feeling it from different areas. They are being pushed. Their practices are being criticized. They do not like it and I do not blame them. They are concerned, so they are resisting this move.
They are confused as well. The Criminal Code is not where the change will happen. The changes happen within the regulatory frameworks, just as there are seal forums in Newfoundland to discuss the seal hunt. The Department of Fisheries and Oceans issues regulations under a specific piece of legislation, just as there is legislation governing farming. That is where those debates occur.
Let us not confuse efforts that may or may not work with what the Criminal Code can practically do. This is something very specific.
The definition of ``animal'' is interesting to me because in the existing law, which will continue to operate if we do not accept these amendments, there is no definition of ``animal.'' There have been convictions in cases where people hurt wildlife, such as racoons and squirrels. People might think turtles are on the line there. At the moment, there is no limit. Anything that you can prove to a judge is an animal or a bird can be the subject of a charge.
This definition narrows and limits it. With regard to the question of whether or not an animal can feel pain, we must be careful there not to persuade ourselves that this law is about something that it is not. There would have to be evidence before a judge about whether or not an animal feels pain — about lobsters, crabs, turtles and so on. We have already accepted that the vertebrates, which are included, do feel pain. However, that just means that these offences are about them.
That does not mean that you will be charged and convicted for throwing a lobster into boiling water. At the moment it is not an animal, but a cow or a dog is and is protected by these laws. Just because something becomes an ``animal'' in the definition does not mean it is now the subject of a charge. It means they are in included in the regime, so we must go back to square one and see what the elements and the defences are.
In terms of practices such as boiling lobsters or the castration you spoke about, let me tell you that Justice Lamer dealt with that in Ménard. It is a very eloquent case. I have a copy of it and I will provide it to anyone who is interested. He said that we are entitled to use these animals for our own purposes.
This was a case where a shelter worker was gassing animals to kill them. People were complaining that it took a long time. It was a cruel way to kill these animals. There were other methods. That is your point. He said that we must look at these other methods. Are they just as easy and affordable? Is this the only man who is doing it this way and everyone else has moved on to something more humane?
It is already the law. Even if no one at this table likes these amendments, it does not matter. The industry concerns will still be there because the law is still on the table. This case was in 1978. That has been the law for 24 years and will continue to be the law.
The concern about frivolous prosecution that Senator Stratton raised will continue to be a problem, regardless of these amendments, because the laws still exist. The existing 110-year-old laws will still be there in January. These fears that are being raised are not exclusive to this bill; they are relevant to the existing law.
Senator Bryden: I do not disagree with what you are saying. However, you are not really dealing with the issue.
When we fished for lobster, we never thought that we would have to be careful about this because there could be a criminal charge under the existing law. With this definition, however, someone can say, ``The lobster feels pain, the lobster is an animal.'' Therefore, that person who is cooking the lobster can be charged — perhaps not successfully — under this bill because it is treating an animal cruelly.
The Chairman: I want to remind colleagues that we still have four senators to hear from, and another panel. We are required to be finished by 1:30.
Senator Smith: I have a supplementary question.
The Chairman: Yes, but I would ask colleagues to keep the preambles to their questions brief so that everyone can be heard.
Senator Smith: Senator Bryden piqued my curiosity in terms of the theoretical possibilities with the vertebrae and the pain. In terms of evidence, if you used a mousetrap, would you be guilty?
Mr. O'Sullivan: No.
Senator Smith: Is it a grey area? I must confess that I have used a mousetrap.
Mr. O'Sullivan: Actually, the point that you make effectively with that example is that when you are talking about unnecessary pain, brutally or viciously inflicted and so on, which is the language of this bill, one of the things you look to as your first indicia is community standards. Most of the industries that you talked about, namely, the hog, cattle, chicken and poultry industries, have their own standards, either through regulation or through their industry standards, on how they will kill and clean animals. That is the most important evidence of what the community standard is. There would have to be, in my submission and observation as a lawyer, a marked departure from that community standard before someone is reasonably exposed to a criminal conviction.
If you have mice, hopefully the head traps kill them instantly, and it is a humane way of doing it. If it does not work, it is not because you intended it not to work. It was not unnecessary, you have not acted in a brutal and vicious way and no one would say you have.
Circle back to the language and see what is being done.
Standards evolve. The way we killed and dealt with animals 30 years ago is a little different from today. The industries have worked proactively, the poultry and hog industries, to try to keep evolving the standard. They may not be where everyone would like them to be, but they are moving forward.
Ms. Bisgould referred to the community moving those things collectively along.
If you are butchering or killing animals in a way that meets the standards of the industry and the way other people are doing it, there cannot be anything to worry about. If you are beating them to death with a shoe, then that is something to worry about.
Senator Bryden: Unless you get everyone else to do it.
Ms. Bisgould: People know that mice and lobsters are already protected under the existing law. They are already covered. The new law limits the definition. You could already charge someone for boiling lobsters, and no one has been. It is not illegal.
Senator Bryden: Perhaps we should keep the existing law.
Senator Baker: Ms. Bisgould, are you saying that the manner of killing of seals is not actually covered under this section of the Criminal Code? You are saying that the Fisheries Act takes care of that?
Ms. Bisgould: I did not mean to say that. There cannot be charges in that context. Criminal offences occur in the workplace and at home. However, the industry and its practices are specifically regulated under the Marine Mammal Regulations of the Fisheries Act.
Senator Baker: Of course.
Ms. Bisgould: That is the regime in which you talk about trying to reform the practice of seal hunting, if people want to do that. Of course, there can be criminal charges in any context, and in the context of the seal hunt, I take it you know that there have been charges.
Senator Baker: Under the Criminal Code.
Ms. Bisgould: Correct.
Senator Baker: Under these provisions of the Criminal Code.
Ms. Bisgould: The existing provisions that are already in place.
Senator Baker: Yes, and under these that now replace the existing ones.
Ms. Bisgould: Well, we do not know. No one has been charged, is what I am saying.
Mr. O'Sullivan: If the senator's concern is that someone acting under the legislation that Ms. Bisgould describes could be charged under this proposed legislation, the answer is that you are legally justified because you are acting in a way the law permits.
Senator Baker: I want to point out to you that on February 22 of this year, the Chief Justice of the Supreme Court of Canada in the unanimous decision R. v. Ward said:
The Criminal Code...contains prohibitions against cruelty to animals...I am prepared to assume...that the federal criminal law powers could extend to prohibitions on the killing and manner of killing of animals like seals as a matter of public peace, order, security, health or morality.
That is the concern of Senator Adams and other Aboriginal people. Let me ask you this question: Would you agree that the provisions of this section of the Criminal Code should exempt the Innu hunter?
An example was given last night, that when he spears a seal and drags it up through a hole with a hook, obviously, that is against the legislation. Should they be exempt? Should the snaring or choking of rabbits be exempt from the provisions of this act?
Ms. Bisgould: I would hope that First Nations people engaging in traditional activities would not be the subject of criminal charges in this country.
However, neither they nor anyone else should be the subject of an exemption. The reason is that that is an incredibly dangerous and unprecedented move in criminal law. We do not write criminal laws and say they do not apply to one person, but they do to another person. The criminal law is the law of the country. We then create in our laws defences to give people an opportunity to say, ``I had justification. I had legal excuse.''
Senator Baker: Or colour of right.
Ms. Bisgould: ``I made a mistake of fact,'' which is the same thing.
Senator Baker: Or of law.
Ms. Bisgould: There is no mistake of law in the Canadian context. I will talk about that.
Senator Baker: Do you agree, then, with putting in what is already there in section 429(2) to cover those cases?
Ms. Bisgould: Do you mean what is already in section 429(2), and the impact that it could have, even though, as we know, it has never been used in 110 years of these laws being on the books?
Senator Baker: They have never been used?
Ms. Bisgould: It has never been relied on as a defence in a criminal charge under the animal cruelty provisions, except the one example that Mr. O'Sullivan mentioned, where it was not a colour of right.
Senator Baker: We had another example last night. The Department of Justice claimed the only example was of a farmer who was asleep when two dogs came upon his property and chased the cows out into the water. His wife woke him, and he ran down the stairs with a shotgun and shot one of the dogs. He argued that he had colour of right to shoot that dog because he thought he was justified in doing it. He used that in his defence. Now you are telling us that there is another case that is the only one where it has ever been used.
Ms. Bisgould: It is the same case.
Mr. O'Sullivan: It is the same case, Comber. I have the case with me, if you would like to read it.
Senator Baker: Let me ask you this: Do you use Quicklaw or eCARSWELL when you are investigating whether or not that is the only case?
Ms. Bisgould: I cannot figure out eCARSWELL, but I do use Quicklaw. I am also in contact with many humane societies and get copies of the unreported decisions.
Senator Baker: If you use Quicklaw or eCARSWELL, which most senators have in their offices, and you enter that section, you come up with a host of cases.
One of the most recent ones was where a gentleman shot a bull in his backyard in Western Canada because it was interfering with his cows and he was into a particular type of breeding. The bull, which belonged to the farmer next door, was now interfering with those cows, so he shot it. He used the defence that he had colour of right to do this. Eventually, the judge decided that because he had phoned the farmer next door and said, ``Look, your bull is doing this,'' he had taken precautions. The judge said, ``You exercised due diligence. Therefore, you are innocent.'' However, he was using section 429(2) as a defence, colour of right.
There are many cases in Newfoundland case law. There was a case where a gentleman's daughter was bitten on the face by a dog. He went to the owner's house, the dog came out and growled at him and he choked it. He was found guilty. He used the defence of colour of right because he honestly believed he had legal justification to do this, and therefore his actions were innocent. That is the normal definition of colour of right. The judge ruled, however, that he was guilty because he should not have killed the dog but let go, because the dog was growling at him and attacking him. I could go on for half an hour on different cases in which it has been used, but it has not been successful.
Ms. White: Right, that is exactly the point.
Senator Baker: There may be many cases where it has been used, but it has not been successful.
Now that we have that straight, what is wrong with having it in the law? Here we are contemplating an act. You were consulted on this. The penalty is greater than the penalty for common assault.
Mr. O'Sullivan: The maximum is.
Senator Baker: You approved of this bill because you were consulted. I could not understand, from reading it, the pith and substance of the rationale for making an injury to a police dog more serious than an injury to any other dog. Where did that originate, and why would you agree with that? How did that come about?
Mr. O'Sullivan: I will ask Ms. White to take that question, and then I will return to your points on the colour of right.
Ms. White: It is interesting that you ask that question because that was raised by one of the parliamentary committee members, who requested that be put in specifically on the basis that dogs that work in police activity are put in greater danger than other dogs and should have greater protection.
I do not think there is a distinction, but nonetheless, the committee saw fit to proceed with it, and that is where that came from. It was a last-minute decision. It was not one on which we commented.
Senator Baker: Do you agree with it?
Ms. White: I do not see the difference, frankly. I agree with you. I do not think it specifically makes a difference in this particular piece of proposed legislation. I do not see the difference between one dog and another.
It is it true that animals such as horses that are used in moving crowds and dogs that are used in particular situations are put in greater danger. I am not a lawyer, so I am just telling you what was the source of that particular change. It was not our idea.
Senator Baker: You do not see any justification as to why the government should make the distinction? Not only does it carry a greater penalty, but you must also replace the police dog.
The only case law that I can remember on this was where the police had charged a young man. I think it went to the Supreme Court of Canada. These two young men were breaking into a school, and a police dog was used to chase down one of the young fellows. He turned around with a tire iron from his car and hit the police dog. The charge was brought against him under this section of the Criminal Code, and the judge said the police dog, according to various previous cases, is actually part of the police force. The first judge claimed it was a weapon. You could not be charged, therefore, under that section of the Criminal Code.
I presume, because of that, there had to be a special distinction made for a police dog on duty. However, it is rather strange that everyone would agree, not only to the increased penalty, but also to the replacement of the police dog because it was hesitant, after being struck, to then chase down any other person that it was supposed to go after.
Ms. White: You should be careful when you talk about ``everyone,'' because it was a last minute amendment put forward by one individual on the committee.
Senator Baker: In the House of Commons, was it?
Ms. White: Yes, it was in the House of Commons committee. In fact, it was at the very end after all the witnesses had given their submissions. I do not remember any of them having an opportunity to comment on that particular amendment. It was very much an internal committee decision. It is not a position on which I would take a stand. I would not die on that hill.
There are many other items in this piece of proposed legislation that I think you know, from hearing from Mr. O'Sullivan, we want to remain.
We think the bill is good as it stands.
Senator Baker: Are you opposed to putting back in the protection of the one sentence, in whatever form, be it legal justification or legal excuse — as Mr. O'Sullivan pointed out, the three defences? Furthermore, there is the change of the word ``and'' to ``or'' as recognized by the court. Are you opposed to putting those three defences back in the proposed legislation?
Mr. O'Sullivan: Let me help you on that point, if I can.
Senator Baker: We understand your reasoning. You have been very good at explaining that. However, do you object to those three defences being put back in, although you claim it is already there in the common law?
Mr. O'Sullivan: You have the first point, namely, that it is already there. It is incorporated in the use of the term ``unlawfully.'' What is the mirror image of unlawful? It is a legal justification, right?
If anything, the use of ``unlawfully'' there puts a burden on the prosecution to prove that the act complained of was unlawful, as opposed to a burden on the accused to raise it by way of defence.
Senator Baker: That is in one section, is it not? It does not cover all of the other sections.
Mr. O'Sullivan: Yes, it is in one section.
In my view, having read the proposed legislation, ``colour of right'' has no resonance because of the concept, as you have said, of a mistake as to civil law.
Senator Baker: You are correct there.
Mr. O'Sullivan: How could you kill a dog brutally and viciously and think it was justified by a mistake of civil law? It does not ring true. It deals with possession or entitlement of property.
Don Stuart lived in the North most of his life. I knew him when he taught at Osgoode and at Queen's. He wrote the best book on criminal law in Canada. He talks about — and I have made reference to it in my brief — colour of right as being found in possession of property cases.
It is confusing to put it into the bill because I do not see how it applies. If you ask me, ``Does it harm things?'' I cannot think of one. On the other hand, it is like putting something into a car that it does not need. Why would you add it, unless you thought it was protecting something that needed protection? People have seized on ``colour of right.'' I have read a number of the briefs. I have a stack of them here.
The Chairman: Mr. O'Sullivan, I will stop you there.
Mr. O'Sullivan: I will stop. I made the point.
The Chairman: Senator Baker, we will move on. We want to wind up this panel because we have another to hear from.
Senator Andreychuk: Since I think it is unfair to the other panel for us to continue — and that is a shame — we should apportion our time as senators more fairly.
You said that there were no cases on colour of right except the one that you repeated to honourable senators. The majority of the cases were held in the provincial courts. Much of that time, cases were recorded with a tape recorder and the tape would be held for a certain time. Every province had a different rule. It would then be disposed of. The only ones that we are seeing are the recorded cases or those that have been appealed to higher courts.
Senator Baker has cases; I have some. In fact, I was involved in some of those cases in Saskatchewan. However, they are not recorded. Would you agree with me that that could happen? That is to say, there could be cases, perhaps significant cases, but they were not appealed or the evidence was not held because we had rudimentary procedures in the provincial courts.
Mr. O'Sullivan: I would agree with you that there are cases out there that you and I could not find because they were never recorded or reported. I would not agree with you that there are significant cases.
The grapevine among defence counsel is such that if there is a case out there that is helpful, word is spread in a hurry. I would agree with the first half of your proposition. However, I do not think I could qualify it with the use of the word ``significant.''
Senator Andreychuk: Would you agree with me that the grapevine works just as well among the trappers, the Inuit and the farmers?
Mr. O'Sullivan: Yes.
Senator Andreychuk: I will leave that point, although that is important.
At first, you troubled me when you said definitively that it cannot be used against industries and farming. Both of you were leading up to this. However, you are really saying that there are some community standards and that those standards evolve. Would you not say that our society is much more complex now and that our opinions vary more than they did before because we have methods of communication that we never had previously, both nationally and internationally? Therefore, it is harder to come to one community standard, just as I have found in family law. If you lived in a small community where people raised their families in the same way, you could reach a community standard reasonably easily. However, with an increasing immigrant population from a different religious, racial or geographic base, we started to broaden the community standard to include many opinions.
Have we not done the same thing in our views on animals? What we thought was good 20 years ago, we no longer think is, in some cases. We have new technology that has put us out of date and we have different perspectives. I hope you agree with me on that.
Are you saying that there is any difference between that problem under the old law and the new bill? That is to say, that risk is still there for industry. It was under the existing law and it probably will be under the new one.
Mr. O'Sullivan: Yes. I am sort of an average lawyer, not much of a sociologist. However, I do agree with your observations on the complexities of society and evolving standards. To come back to something that Senator Bryden said, there are various communities. There is a hog industry community and there is a poultry community. Those people have evolved standards for how they will process animals.
Standards are evolving, as you have said. That issue will remain, whether it is under the old legislation or the new legislation, exactly as you have said. That is a continuum that people will have to adjust to, regardless of whether you change the law or not.
Senator Andreychuk: Would you agree that any change, even if lawyers like you and I say ``It will not affect you,'' makes people nervous?
Mr. O'Sullivan: This is a good example of it.
Senator Adams: Mr. O'Sullivan, you said in your brief that it would not affect the hunters and the farmers.
I am having difficulty understanding that. You say that the definition of ``animal'' should be in the Criminal Code. I am a hunter. We do not have lobsters like Senator Bryden. We have to hunt and we have to kill.
Every year now, there are times when the government, especially the wildlife management branch, counts the animals that we eat in the community. We are getting less and less every year. Our quotas have been cut. People from Northern Quebec have to get 5,000 pounds of whale blubber from Nunavut to last into the fall. Bill C-10, the cruelty to animals bill, is so strong that people will be less likely to kill the mammals. The people from the wildlife management branch put down how many caribou travel to an area and how many herds are there. They have the figures as to how many herds are there at a particular time of the month, or something like that. At this time of the month, perhaps it is around 500. In April, however, they are down to about 10.
We usually break for a couple of weeks. During that time, I travelled one way by Ski-Doo over 800 miles. Every few miles, I saw caribou. People from wildlife management sometimes go up there to count the whales, seals, polar bears and caribou.
The officials say there are so many people here and they will have to cut down on their quotas. In the community, the people and hunters say they saw a lot more caribou and polar bears many years ago. To me, it is becoming more and more difficult every year. There should be something in this proposed cruelty-to-animals legislation that takes that into account. It should comprise a part of the legislation in the future.
Mr. O'Sullivan: If I understand your concern, quotas are not related to this bill, either indirectly or directly. However, I believe that there is a point underlying your submission that the Inuit and First Nations people of this country have a long and honourable history of not inflicting unnecessary harm on animals or acting cruelly towards them. It is a model from which the rest of us could learn a great deal.
I do not see this bill impacting in any way on the cultural hunting practices of the Inuit or First Nations people. I believe my colleagues would agree with that.
The Chairman: I would like to thank the panellists for taking the time to be with us today.
Mr. O'Sullivan: Thank you, honourable senators, for your attention and for your careful questions.
The Chairman: Honourable senators would next like to welcome our second panel: Mr. Robert Gardiner, President of the Canadian Association for Humane Trapping, and Mr. John Lavers, Director of the Canadian Farm Animal Care Trust and Vice-president of the Newfoundland and Labrador Humane Society.
Gentlemen, I understand that each of you has a brief presentation.
Mr. John Lavers, Director, Canadian Farm Animal Care Trust, and Vice-President, Newfoundland and Labrador Humane Society: Thank you, Mr. Chairman and honourable senators. I appreciate the opportunity to come before you today. I will make a very brief statement and then take questions afterwards, if you wish.
First of all, I am a volunteer. I am here as Director of the Canadian Farm Animal Care Trust. I will go into that in a few minutes. I am also Vice-president of the Newfoundland and Labrador Humane Society, as a volunteer. I live and work in Montreal.
For the information of honourable senators, I am a former special constable with the SPCA, the Society for the Prevention of Cruelty to Animals. My past experience includes investigating circus, farm and domestic animal complaints of abuse, neglect and cruelty.
I have formal background training as well as extensive field training. I have also developed training courses involving police, law enforcement, criminal justice and security, and also for animal investigators.
I hold a Master of Arts degree in police and criminal justice studies from the University of Exeter in the United Kingdom.
For those honourable senators who are not familiar with the Canadian Farm Animal Care Trust, it is a national, non-profit organization. Its aims and objectives are to encourage the development and use of systems that help farm animals. Our goal is to minimize the amount of stress, distress and injury in the rearing, transportation and slaughter of these animals.
The Newfoundland and Labrador Humane Society, the NLHS, is a charitable organization that seeks through its mandate to raise awareness of animal concerns, provide humane education, and direct care to animals, when need be.
Mr. Chairman and honourable senators, there is nothing in the new amendments that will hurt, harm or hinder people who wish to hunt, fish or farm with animals.
Some groups or organizations have stated that frivolous prosecutions will result from the new amendments; however, that would have already occurred under the present law that has been in place for many years. The primary justification for changes in the law indicates that the Government of Canada is prepared to accept that cruelty, neglect and abuse of animals is unacceptable and that the current law is in grave need of updating.
The focus now is on the question of penalties. Amendments to the Criminal Code will provide for tougher penalties under sentencing. That is required so that, as awareness of animal abuse within our society has increased, judges will be in a better position to exercise broader discretion in handing down a sentence based solely on the evidence presented in a court of law.
Provincial court judges have repeatedly stated that the law does not allow them to mandate a stiffer sentence in accordance with the crime committed. Afterwards, if honourable senators wish, I can cite some examples.
The new amendments regarding penalties will afford Crown prosecutors the ability to seek the appropriate sentence upon a conviction. Furthermore, this will allow judges the flexibility to accept prosecutors' recommendations and either lessen or add to sentencing where appropriate.
I wish to briefly discuss the humane law enforcement role of the present law and future developments under the criminal justice system.
SPCA and humane society investigators, inspectors, agents and/or special constables will continue to be the primary investigators of animal cruelty, neglect and abuse as mandated by provincial statutes. All of them are accountable under the law and to the minister concerned.
Within Canada, the SPCA and/or humane society investigators will lay the information and bring forward prosecutions through either the Crown or as private prosecutions, depending on individual provincial jurisdictions.
Again, I stress this point. If frivolous prosecutions were the norm, then this would have already occurred under the current law. To date, I am not aware of any malicious prosecutions involving animal investigators, inspectors, agents or special constables.
More importantly, the new law will be a signal to Crown prosecutors that legislators in Canada are serious about addressing animal abuse, negligence and cruelty within our criminal justice system. This will bring more accountability to the process, because the Crown will be more involved in the prosecution of cases brought to its attention.
With the hope that penalties will be stiffer, Crown prosecutors will be more willing to undertake animal cruelty files. Unfortunately, this has not always been the case in the past.
The end result will be that the investigators will still gather the evidence and lay the information, followed by the Crown in its role, with the process concluding with the judge's decision. The key penalty phase remains the responsibility of the judge.
I would recommend that the present amendments be accepted without alterations to penalties. I would also stress that the main purpose of these amendments is to ensure that the law remains in-step with the norms and behaviour of modern society. We have all seen this process, for example, in new economic crime legislation, increased drunk driving penalties, public safety and security, and additional sentencing with regard to crimes against the person.
The bill will move animals from the property section under the Criminal Code into a separate section, thus elevating the status and increasing the protection of all animals. This is, after all, the result of the law continuing to grow and develop as our society grows and develops.
Finally, the new law will be a response to the wishes and demands of Canadian society. As in the past, when SPCAs and humane societies were originally concerned with both the protection of children and animals, I encourage you to allow the amendments to go forward and let the law speak for those who cannot speak for themselves. That concludes my presentation.
The Chairman: Thank you, Mr. Lavers.
Mr. J. Robert Gardiner, President, Canadian Association for Humane Trapping: Thank you. I am the President of the Canadian Association for Humane Trapping. I have been a director, chair and member of numerous animal welfare, fur industry and wildlife organizations and committees.
The Canadian Association for Humane Trapping has initiated many humane trapping regulations. We have been involved in trap research and have played a leading role in trap standards and trapper education. We work with government and industry.
As a lawyer and a past director of the Canadian Federation of Humane Societies and co-chair of its status of animals committee, I co-wrote and edited ``Investigating Crimes Against Animals'' for SPCA inspectors. I have written and presented over 24 briefs on cruelty to animals to justice ministers, law reform commissions and the House of Commons.
I have approved over 1,400 diverse experiments on over 100,000 animals as a member of an animal care committee and participated in drafting various agricultural codes of practice.
The Canadian Association for Humane Trapping and every animal welfare organization across Canada strongly support Bill C-10B. It is the third iteration of the legislation in the past three years. We do not want any more changes.
These are animal welfare improvements. They are not animal rights improvements. This has absolutely nothing to do with animal rights, other than the accusations raised by industry people.
The president and the executive director of the Canadian Federation of Humane Societies and I initiated these proposals in 1981. We have been through approximately 35 seminars on the topic. We have put on these seminars for professionally trained SPCA inspectors to assist them in carrying out their enforcement duties. Provincial statutes empower societies for the prevention of cruelty to animals to carry out their work.
Inspectors are given police powers to search premises, seize animals and act as a peace officer as defined in section 2 of the Criminal Code. SPCAs act responsibly to prosecute only serious abuses. Less than one third of one per cent of all animal abuse complaints lead to criminal charges. Use of the Criminal Code merely as an educational tool solves over 99 per cent of all criminal abuse cases.
In a city that gets perhaps 10,000 animal abuse cases in a year, probably less than 26 actually go to court. Property law concepts and the failure of the justice system to accord serious treatment to the existing Criminal Code offences resulted in conviction rates of between 33 and 46 per cent during the period 1996-1998, despite carefully organized investigations by qualified peace officers.
The links between cruelty to animals and domestic violence and murder have become well known. It is well documented in various books that I could show you and in the Canadian Federation of Humane Societies' backgrounders linking animal cruelty to human violence, serial killers and school shootings. It is a well-known link to domestic abuse.
Prevention of cruelty is the bedrock moral principle for the work of SPCAs and a fundamental concept of the Criminal Code. Animals deserve to be protected from violence in their own right, since they suffer pain.
Many hundreds of media reports each year and hundreds of thousands of petitions presented to Parliament confirm the public's outrage at cruelty cases and their support for these amendments. Twenty-seven U.S. states have elevated cruelty from a misdemeanour to a felony in recent years.
With respect to the property aspects, we strongly urge you to ensure that these provisions move out of Part XI of the Criminal Code and into Part V.1. In the past, Crown attorneys and judges have minimized cruelty when animal owners have pointed out that section 429 (3) of Part XI of the Criminal Code allows owners to harm their own property.
If I own a piece of property, like this pencil, I can break it. Should I just be able to do that willy-nilly with an animal? No. Animals feel pain. We should be able to harm animals; however, we should do it the right way and with care.
People will continue to have property law rights over their animals in every respect, whether by means of numerous common law cases or provincial statutes. The property rights fall under provincial law, not federal jurisdiction. Moreover, all the existing Criminal Code protections for animals as property will continue.
Perpetrators of unnecessary violence should not escape criminal liability based on property concepts. A separate part of the Criminal Code will highlight the true basis for the cruelty offence and provide a signal to the justice system and the public. It does not create any animal rights.
The Criminal Code deals with human obligations, not animal rights. It is important that the cruelty provisions distinguish animals from chattel property by focusing on the fact that animals can suffer pain and humans have a moral duty not to cause unnecessary suffering, even if the animals are their own property.
Frivolous prosecutions will not be a problem. I would be glad to go into that in detail. You are all well aware of the effect of clause 507.1 requiring independent analysis by a judge and a Crown attorney, which will prohibit those kinds of interventions. I believe that you are well aware of the role of the Crown as gatekeeper.
I hope that you will have some questions about lawful excuse, because obviously it is very well covered now in section 8(3) of the Criminal Code and the case law of R. v Holmes. All of the animal use industries have existing legislation or private standards.
You must look at the Ménard case. You cannot look at this proposed legislation without fully understanding the Menard case on this topic.
We are absolutely opposed to any kind of exemptions for people or industries. They must all face up to the Criminal Code the same as others.
The Chairman: Thank you, Mr. Gardiner.
Senator Beaudoin: You said that property and civil rights are within provincial jurisdiction. However, for certain species, we have federal legislation.
Mr. Gardiner: Yes.
Senator Beaudoin: Are those laws also concerned with those animals as property?
Mr. Gardiner: It is not in any of the laws that I have seen. The federal laws, for instance, deal with health issues, not property issues. The federal marine codes are all about fishing and have nothing to do with property. Only the provinces could legislate in that area.
Senator Beaudoin: That is right. The right of property is provincial, but there are federal laws concerning the importing of animals from other countries. We must follow that federal legislation, which has no authority over property.
Mr. Gardiner: For example, there is a prohibition against the importation of an endangered species into Canada. Pretty well every country in the world has that kind of prohibition. We also have a treaty with the United States concerning migratory birds. There are many such examples. The whole purpose of that kind of legislation is to deal with non-property issues. There are various other issues, such as conservation and protecting endangered species. There are actually some protections of property in the Criminal Code in section 322, where it states that you cannot steal another person's property, which includes animals. Theft is prevented, but that is a criminal property concern. Altering a cattle brand is a 10-year indictable offence in section 368. That kind of property protection exists in the Criminal Code. Bestiality is also a 10-year indictable offence. Again, that is not a property issue but an indecency issue.
Senator Beaudoin: You have enunciated that the property itself is always a provincial issue in that sense.
Mr. Gardiner: Yes. The pith and substance should be a property issue if it is to be regulated by the provinces. If it is to be regulated by the federal government, then you impinge upon property rights if you have a legitimate criminal power under the Criminal Code or other legislation.
Senator Beaudoin: I am not concerned. The federal criminal authority legislates in respect of importing or exporting animals in Canada. The fact remains that property issues fall under the provincial authority.
Mr. Gardiner: It is basically provincial — the pith and substance.
The Chairman: I wish to follow up on Senator Beaudoin's question. Sections 444 and 445, which refer to the distinction between cattle and domestic animals, are now replaced by section 182.2, which refers to all animals. If this is passed, it will be a federal offence to kill animals without lawful excuse.
In your opinion, can provincial legislation be used as a lawful excuse for the killing of an animal when it is contrary to a federal statute?
Mr. Gardiner: Yes. When it goes to trial, the judge will look at the nature of the offence to determine whether it was unnecessary suffering, as, for example, in the Ménard case.
The Chairman: Are you familiar with Jorgenson and Justice Sopinka's decision in an obscenity case, whereby he said that it was all right for the Ontario review board to say that distribution was acceptable, but it was still a violation of a federal statute?
Mr. Gardiner: I would say that in this situation, a judge must look at the actual impact on the animal, the standards in the community and the standards in the industry. A judge has to look at the standards, for instance, of the Canadian Council on Animal Care.
The Chairman: I do not want to belabour this, but let me give you one specific example. A hunter in Newfoundland gets a provincial licence to kill an animal. Is that a lawful excuse, under the federal legislation, when there is no indication in the legislation that that is permitted by the province?
Mr. Gardiner: That is then a lawful activity, because the province approved it. There could be no better proof that he is involved in a lawful activity than provincial legislation that says that everyone who is licensed can do that.
The Chairman: Can the federal legislation delegate that to the provinces without putting it in the act, or is it just automatic, in your opinion?
Mr. Gardiner: It happens in so many cases in so many different ways, that judges do look at the way an industry works. It would be ludicrous for a judge to impose a heavy penalty on someone who is simply following the standard practices that are well proven throughout society. The Crown could not even lay a charge for that.
Senator Beaudoin: When you deal with criminal law, there can be an effect on property, but that is purely incidental, whereas this is constitutional.
I think you are right — property is a provincial issue. There may be federal legislation that affects property, but that is all.
Mr. Gardiner: The most important point, for example, is that I own my dog; I can sell it; I can rent it out; I can do all kinds of things with my dog because I own it; it is my property. Nothing in the Criminal Code has anything to do with that. However, if I hurt my dog and torture it cruelly, and I can show you many cases of that, then it becomes an issue for the courts. When such an act is wilful and unnecessary, then a crime has been committed, whether it is the person's property or not.
Senator Andreychuk: I have a question about the following hypothetical scenario: There is provincial legislation that governs abattoirs. That legislation allows killing in a way that all other provinces and territories do not. There is a community standard that deems it to be an unusual and cruel way of killing. Would the provincial legislation in this case provide an excuse to avoid charges? If the province allows it, could someone still face federal charges?
Mr. Gardiner: I believe that a judge would look at that situation in terms of what that one province allowed. If it was obviously a cruel way of doing a job and well recognized by other provinces as being inappropriate, I believe a judge might decide not to allow that as an excuse. However, I think the judge might feel that was the appropriate standard in the community. The judge would have to wrestle with that very issue.
Senator Jaffer: I want to ask Mr. Lavers about the definition of ``animal.'' You were here earlier for the comments about lobster, mice et cetera.
Mr. Lavers: The definition of ``animal'' as it pertains to the present amendment offers nothing that has not already been in effect in different provincial jurisdictions, to my personal knowledge, for at least 20 years.
You will find, in some provincial jurisdictions and under various animal welfare protection acts, that the word ``vertebrae'' and the definition may be different in terms of the position of the words in the sentence. However, the substance is exactly the same. The new definition that is currently being put forward is no different from anything that has been in operation in other jurisdictions in this country.
Senator Jaffer: You heard some senators mention lobsters. What are your comments on that? Will they be charged under this proposed legislation?
Mr. Lavers: In my personal experience, I have never investigated or received a complaint associated with lobsters in particular.
Senator Jaffer: Mr. Gardiner, why can we not leave in the legal justification and colour of right excuses?
Mr. Gardiner: I think you all know that it is already covered in section 8(3). I am sure you have been through that and the cases related to it. There is a wide variety of excuses and justifications in the common law broader than lawful excuse, and certainly far broader than any concept of colour of right, which is a minor concept. Colour of right really deals with rights to property. It has been misused in the case law. These criminal charges involving animals have nothing to do with colour of right as a property concept. It is important to take that concept out of Part XI as it currently exists. There are two things in Part XI that I would call ``evil.''
Section 429(3) of the Criminal Code states:
Where it is a defence to destroy or damage anything ...
(b) the fact that a person has a total interest in what is destroyed or damaged does not prevent him from being guilty of the offence if he caused the destruction or damage with intent to defraud.
The basic idea there is that you are entitled to damage your own property if you own it entirely and you have not defrauded anyone. There is this combination of colour of right and the idea that you can destroy your own property. People have, in fact, raised it, and this is part of the way that Crown attorneys think about cruelty crimes against animals. It has nothing to do with those crimes because the cruelty crimes against animals have nothing to do with property rights. They just happen to be included in the property sections. It is important to create a separate section that focuses on what this is all about, which is the causing of unnecessary pain and suffering to animals.
Senator Jaffer: Besides the Comber case, have you seen any others on colour of right?
Mr. Gardiner: The Comber case is the well-known one. I know it has been raised in unreported cases. I have not heard of it succeeding, because why should it? It has nothing to do with reality. It was a mistake to put it in here back in 1892, at least as far as animals are concerned. It is quite proper for all of the property offences in Part XI.
Senator Joyal: I should like to ask Mr. Lavers a question about the definition. Does ``animal'' include in the prenatal, pre-hatched or unborn condition?
Mr. Lavers: I would say that based on past law in various provincial jurisdictions — and I assume you are specifically addressing the vertebrae issue — these arguments have been addressed before. Certainly I am not in a position to address them because I have not participated in those arguments, but I would suggest as a parallel argument to that, ``Do we have a definition of `pain'?''
Senator Joyal: That is the second part of my question. Can you give me an example of a provincial statute that defines ``animals'' on the basis of those that can suffer pain? Give me a provincial statute that includes that definition.
Mr. Lavers: I will give you the example of a statute from the Province of Newfoundland and Labrador. An animal means a nonhuman vertebrate. It goes on to describe what distress is, and the word ``pain'' is used under the definition of ``distress.'' If you wish, I can read this for you.
Senator Joyal: Please.
Mr. Lavers: Section 2(b) of the act respecting the protection of animals states that distress means ``the state of being in need of proper care, food or shelter or of being injured, sick or in pain, or suffering undue or unnecessary hardship, privation or neglect.''
Senator Joyal: Yes, but it is not included in the definition per se of the act?
Mr. Lavers: The definition of?
Senator Joyal: Animals.
Mr. Lavers: It is subsection (b).
Senator Joyal: Read the first section.
Mr. Lavers: Section 2(a) states that ``animal'' means a nonhuman vertebrate.
Senator Joyal: Could you go on?
Mr. Lavers: It goes on to (b), where it gives the definition of distress.
Senator Joyal: Yes, I understand that you can define the word ``distress'' by including pain, among other elements, but it is not part of the definition of the object of the legislation.
Mr. Lavers: The object of the legislation is the animal.
Senator Joyal: Exactly. That is, the animal the way it is defined.
Mr. Lavers: Right.
Senator Joyal: I asked for this because I tried to research which other jurisdictions or countries of common law background would have included that aspect in the definition. I have been unable to find it the way it is proposed in this bill. That is why I feel they are introducing an element into the definition that requires an additional proof that does not objectively exist in the first part. In one part, there is an objective criterion, which is that the animal must be a vertebrate. Science can tell you what is a vertebrate. It is already known. They are classified already. Any biological dictionary will list the vertebrates. It is easy to understand. However, when you go to the second part, it states that there are other criteria, including those living that have the capacity to feel pain. That means you must apply the scientific test.
I am not opposed in principle to putting that in the proposed legislation, but I wonder if this has been done somewhere else so that we know exactly what we are covering with the bill.
Mr. Lavers: That very debate has already been undertaken in various courtrooms across this country in defining what is pain and distress in relation to the object in question, namely, the animal.
Senator Joyal: You are introducing other elements into it. You are introducing the capacity to react to something in the definition of the being. That is where I have some problem with the way that definition is written. As I have said to you, I did not find any similar criteria in provincial statutes or in any other common-law country, be it Britain, the United States, New Zealand or Australia. I want to know exactly why, suddenly, we are introducing an element into the definition that is not attached to the being per se but to a reaction to something external. That is where there is an element of novelty in this.
You were present this morning when we had the benefit of other witnesses. I am using the expression: ``Standards evolve.''
Senator Andreychuk: Community standards.
Senator Joyal: We heard that around this table many times this morning. Our reaction to certain behaviour changes because standards evolve. As Senator Andreychuk has said, a certain method of slaughtering might be recognized in one province and not in the other nine, and you yourself said that the judge would look at the other provinces. It is done by comparison.
My problem concerns the Aboriginal people. I am resistant in principle to the idea that the standards evolving in southern society for the good of Canada — I am not opposed to standards evolving — will be imposed on the Aboriginal people and their traditional ways of hunting and fishing.
I have a problem with that because the Aboriginal people are protected. Their fishing and hunting rights have been protected under the Constitution since 1763.
How can we organize the bill to ensure that we recognize that standards are evolving while not harming the traditional rights of the Aboriginal people to fish and hunt?
The code provides for particular conditions and sentences for Aboriginal people. Our Parliament, and this committee, accepted an amendment last year to the Young Offenders Act to recognize, in the sentencing of young Aboriginal people, who occupy the majority of our prisons, their Aboriginal status and conditions. I wonder if, within the defences provided in this bill, we could not phrase a defence that would take that into account, namely, that traditional hunting and fishing practices of Aboriginal people in their territories would be a defence against an accusation of unlawful behaviour or behaviour causing pain.
I can give you an example of a traditional hunting practice that, according to this bill, would probably be deemed cruel.
Mr. Gardiner: First, the Criminal Code applies to all people, but it also gives a lawful excuse to all people. For instance, the kinds of concerns that you are expressing would most often be covered by the phrase, ``You cannot cause unnecessary suffering.'' The Ménard case makes it clear that humans have the right to make legitimate use of animals throughout society for many different reasons, and many of which may be unexpressed. The only point is that they should not wilfully cause unnecessary and avoidable suffering. They can use reasonable means to kill an animal with the least amount of suffering.
That could be gross suffering. I sometimes cause gross suffering to animals when I kill them during medical research or in trapping, which is my field, where animals may often be caught in traps with broken legs for 72 or 96 hours, for instance. If I do that for a legitimate purpose and in a way that is governed by law, I know I am protected. Also, I know that a charge could not be laid against me simply because of the lawful excuse, which is inherent to the protection for every crime in the Criminal Code.
Native people have a fine reputation for their respect for animals. Their traditional ways of hunting, trapping, fishing and similar activities have been going on forever. They are protected by their treaty rights. If a Crown counsel was willing to lay a charge in a certain situation, which is the biggest hurdle to overcome, and the judge in the end must render a decision, the judge will look at community standards and the way things are done in framing his answer.
The Chairman: I am sorry, but I must interrupt Senator Joyal. We have five minutes. If we have time, we will come back to it. However, there are three other senators who wish to make points. I should like to give them an opportunity to say something.
Senator Stratton: I must be in the Senate as whip shortly.
I asked for a copy of potential witnesses, and I know there are others who would be interested in seeing it. Could we ask for it to be distributed? Not that we will necessarily add to it. We want to ensure that those whom we requested to be here are being asked to attend. Is that acceptable?
The Chairman: No problem.
Senator Baker: I have a question for the witnesses regarding their explanation of why the phrase ``colour of right,'' and indeed the entire sentence, does not need to be there and, if I understand Mr. Gardiner correctly, should not be there.
The phrase ``colour of right'' is used in several places in the Criminal Code. I think it starts at section 72, with break and enter, and goes up to the 300s and, more recently, appears in sections added regarding computer fraud and so on. However, the definition of the phrase has been used in recent legislation. I will give you an example that Mr. Lavers knows well. The Fisheries Act was amended recently to add a section 78.6 that outlines that no one shall be convicted under this act who has exercised due diligence; if the person honestly believed in a set of facts which, if true, would render their conduct innocent, or words to that effect. That would give legal justification or excuse to their actions, which is the normal definition of the term ``colour of right.''
The phrase ``colour of right'' is not there, but the definition of ``colour of right'' was included in the Fisheries Act. Whenever that wording has been added to acts of Parliament, it has been used over and over again. That is why, in cases of people being charged with illegally fishing and illegally killing seals and so on, to my recollection, especially on fish quotas, the defence always goes to 78.6. They use that defence, due diligence, or (b), which is really a colour of right defence.
We could sit here all day and argue the point, but my question to you is are you saying that all of those recent amendments to the Fisheries Act and other acts — I am sure I could pick them out — should not be in there because that is covered anyway? Is that what you are saying?
Mr. Gardiner: ``Colour of right'' is one type of lawful excuse. ``Excuse'' and ``justification'' are two broad words. ``Lawful excuse'' is more refined. ``Colour of right'' is a very refined phrase. If you are facing an accusation of a crime against an animal, arguing excuse or justification will get you off the hook. One of those could be lawful excuse. Colour of right will not get you anywhere, and no one will uphold that.
Senator Adams: Mr. Gardiner, perhaps I misunderstood, but you said that animals have property rights. Perhaps you are only talking about pets. For example, Nunavut has a national park. We have over 40,000 square kilometres now in the park in Nunavut. The caribou are in that park. Do you mean to say that after this bill is passed, those animals will have property rights?
Mr. Gardiner: Those animals will have the same rights that they had before. All the property protections will be the same. Whether they are Crown animals or someone owns the herd or they are wild, all their rights will be the same as before. The new bill will not change anything about that.
Senator Adams: For example, if I kill an animal in a park, I would be charged with cruelty to animals?
Mr. Gardiner: Only if you actually killed the animal in a very cruel way. There are so many instances in which cruelty takes place and there are no criminal charges that apply. It is only when it is such wilful cruelty that a criminal charge might be laid, if it could be proven.
The Chairman: I have to interrupt Senator Adams.
Senator Adams: I did not quite finish the question. I believe that Aboriginals have a law that says we can hunt anywhere, even in a park.
The Chairman: The bells are still ringing; however, I believe they are about to stop. We are required to clear up at 1:30. We will adjourn the meeting. Thank you very much, gentlemen, for your presentations.
The committee adjourned.