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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 9 - Evidence for April 30, 2003

OTTAWA, Wednesday, April 30, 2003

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-10B, to amend the Criminal Code (cruelty to animals), met this day at 4:02 p.m. to give consideration to the bill.

Senator George J. Furey (Chairman) in the Chair.


The Chairman: Today, we have before us officials from the Department of Justice. Two of our witnesses need no introduction. Ms. Joanne Klineberg, Counsel, and Mr. Richard Mosley, Assistant Deputy Minister, Criminal Law Policy, are accompanied by Ms. Karen Markham.

I understand that there will be no presentation by the witnesses, as this is neither your first nor indeed your second time appearing before our committee to help us in our deliberations.

Ms. Klineberg, thank you for forwarding to the committee the additional information on animal cruelty that had been requested.

Senators, I invite your questions.

Senator Beaudoin: As you remember, Mr. Chair, we had put on the table four points. We seem to agree on both sides with those four points. I understand that the witnesses will not make a declaration, but we could ask them for their reaction to those four points.

I have selected the point regarding Aboriginals. It is an interesting amendment. You will remember that the Aboriginal people would like to have a derogation clause.

Senator Bryden: Excuse me, senator. Do we have copies of this? Do the witnesses have copies of this? Our discussion was held in camera. I certainly do not have copies. We had some ideas that we were discussing. According to the press, someone has copies of something — and that does not bother me particularly. However, in order to discuss in detail four or five issues that we discussed among ourselves, we need copies.

Senator Cools: I thank Senator Bryden for raising that issue because I was disturbed to learn in the media of today or yesterday that this documentation was now available and was being cited in the newspaper article. I have copies of the newspaper articles in question. For example, in the Ottawa Citizen of Wednesday, April 30, 2003, in an article entitled ``Bureaucrat defends cruelty bill; admits killing `many a mouse, Peter O'Neil writes that ``according to a leaked summary of the committee's amendments, it argues that the bill's definition of `animal''' — and it goes on to quote from the elite summary. I believe there are other articles that make a similar reference.

The Vancouver Sun, on April 25, 2003, ran an editorial that reads, in part, as follows:

Nevertheless, the Senate has managed to find what it sees as problems with the bill. The Senate's standing committee on legal and constitutional affairs has recommended two major changes to the bill, both of which have prompted animal rights' groups to consider withdrawing their support for the new law.

In The Globe and Mail, Kim Lunman wrote, on Tuesday, April 22, 2003, in part, the following:

Documents obtained by The Globe and Mail show that the Senate is also looking at a proposal to exempt some groups from the new law.

Animal activists are so enraged by the proposals that they are threatening to withdraw their support from Bill C- 10B.

The article continues:

The documents outlining the proposed changes suggest the bill's definition of an animal is ``overly broad'' and say there is continuing scientific debate about ``whether a being has the capacity to feel pain.''

The documents outlining possible amendments were prepared after a March 27 meeting in camera of the Senate's standing committee on legal and constitutional affairs.''

The article continues to cite the document.

There is an article in the Saint John Telegraph-Journal, but it does not quote the document directly.

In any event, I believe I have made the point that the document prepared for us by Nancy Holmes and Gérald Lafrenière, who are with the Library of Parliament, on March 28, 2003, is the very same document being cited.

Mr. Chairman, Senator Bryden raised the issue; however, I had been planning to raise it. Somehow or other, this document has now been reported in the media in at least three newspaper articles I have cited. I do not know how we should proceed, but I wish to note this.

The Chairman: I thank you for raising that, Senator Cools. If you recall, towards the end of the last meeting there were a number of discussions in camera with respect to possible concerns and solutions. The Library of Parliament was asked to put them together in some kind of an organized fashion, then that particular document was distributed to members of the committee, presumably so we could come back with officials from the Department of Justice and discuss it. How it was given to the media, I have no idea.

Senator Beaudoin: In any event, Mr. Chairman, this Library of Parliament document was public; the meeting was in camera, but that document was in public. It has been distributed.

Senator Andreychuk: It was distributed to the committee, in camera.

Senator Beaudoin: How is it, then, that it was cited in so many newspapers?

Senator Cools: That is the question that I am raising.

Senator Nolin: To add to the problem, I received a call last week from a Halifax journalist who asked me if I had answers to my question on the lobster feeling pain. As I had just returned from being out of the country, I did not know, but he raised the issue that the lobster pain also concerned Senator Bryden. My response was that we were raising very valid and serious concerns, that we got serious answers from expert witnesses, and that we are now convinced that there is no such thing as lobsters feeling pain. That was my encounter with the media. I was not aware of that document circulating until today. That is probably what prompted the journalist to call me.

The Chairman: Rather than proceed right now with debating how the document was released, let me may offer this just as a possibility: When the document was distributed, I do not think we indicated that it was private and confidential or that it was coming from the in camera session that we had. I would have thought that was obvious, although I do not think we stamped anything on it to that effect.

It has just been pointed out to me that the first sentence of one of the articles reads that the document had been prepared at the request of the committee following an in camera meeting, so that would probably be self-evident. Might I suggest that we leave the discussion of how the document was released to another time when we, as a committee, can meet and discuss whether we want to do anything about its release.

I would suggest, since we have witnesses here, that we proceed to questions with respect to the concerns raised last time around.

Senator Andreychuk: I hope that we do not leave this issue of confidentiality for too long and that we deal with it in a timely manner. As you know, we have a duty and obligation to the Senate not to disclose anything that is in camera. If we are to follow the rules put in place by the Rules Committee, we have to deal with it in a timely manner. This is the third committee I have been involved in where in camera material has been the subject of newspaper reports. We did hammer out a new process and procedure in the Rules Committee and I think it is important that we follow it. I leave it in your good hands to take it up.

Senator Beaudoin: There were two documents. The one we are discussing came about as a result of our in camera meeting. However, when the scientists testified, we had some amendments before us at that time. It was a first draft and it was not in camera; what should have been confidential is what was printed after the meeting. However, this was not the first time that we heard about the four amendments; of that I am sure. I agree that there was an in camera session, which resulted in a Library document being produced; however, the first time we had the four amendments of animal, colour of right, lawful excuse and non-derogation, it was not an in camera meeting. We had discussed the principles of those four amendments before. It is true that we approved the amendments in camera. However, the principle of the amendment was already in the public.

The Chairman: We are now engaging in the debate, which I suggest we not do until after we have heard from the witnesses.

Senator Cools: I agree, but the question is not one of the concept or the notion of the amendments.

The Chairman: It is the actual document.

Senator Cools: What is here is being reported as the actual, exact and precise text, which means that the public has been misinformed. The whole concept of meeting again and again in camera is not to revel in confidentiality or secrecy but to allow the committee a process to hammer out amendments and go through the necessary corrections, edits and improvements. These amendments have been reported as if they are now cast in concrete. It is a serious matter and some action will have to be taken. When I say action, I mean in terms of us clarifying the record as a minimum. I understand the need to press on with a witness; however, I think, as a group, we have to do something about this.

The Chairman: I take Senator Andreychuk's point and we will meet in a timely fashion to discuss the matter.

Senator Jaffer: From what I understand, this document was not a draft report. It is my submission that this is not a basis for suggesting it is a confidential document. Senator Beaudoin is right that each amendment has been publicly discussed many times. The amendments have been public.

The Chairman: We are now engaging in a debate that is better left to another session, where we can discuss this issue in a timely fashion. I agree with the points being made. It needs to be discussed and it will be.

Senator Beaudoin: I will select the fourth one first. We may start with animal; we may start with 1, 2, 3 and 4. Or, I may give a general explanation for each of them. The definition of ``animal'' was made here and proposed after we heard the scientists. We realized that the definition was poor, because we used the same term to define animal; we referred to animals at the same time. Hence, that is not the definition. Finally, we agreed to say animal means a vertebrate other than a human being, period. This is good enough.

There is also the fact that the pain aspect is in the offence. The concept of pain remains an element of the offence itself. Therefore, it is there. We can accept the definition that an animal is a vertebrate other than a human being, but the pain is not excluded. It is not excluded. The debate to which our colleague Senator Nolin referred was on the lobster.

Senator Nolin: I raised that because the media's involvement in our discussion was raised; I wanted to put on the table that I received a call concerning a concern of mine, and, yes, lobsters. It is no longer on the table.

Senator Beaudoin: You say it is not on the table.

Senator Nolin: Any more, the lobster.

Senator Beaudoin: The second point — I will try to summarize quickly — is the colour of right. We heard from our experts that it is not necessary to have that. According to Mr. Mosley, we do not need that. Around the table, we agree that it is not a bad thing to keep it. We want to keep the question of the colour of right because it is a rule of interpretation. It is what we call in French, in civil law, ``l'apparence des droits.'' We have concluded that perhaps it is not strictly necessary to have it, but it is not bad to keep it because it is a rule of interpretation. This was the main point.

Third is without lawful excuse and necessity. We referred to the opinion of Justice Lamer in the Ménard case. Again, the amendment supports what was decided in the Ménard case.

Finally, the last amendment concerns the Aboriginal people. I agree with them. It is true that section 35 protects the collective rights of Aboriginals and that they have the right to kill. Senator Joyal, for example, gave a very good explanation of this. The experts told us that this amendment is unnecessary, that it is already in the Constitution. Again, we say that it is better to keep it as an amendment because an Aboriginal will not have the duty to prove each time that it is in the Constitution. There will be a non-derogation clause. I believe it is a good thing to do that, because without it an Aboriginal individual will be required each time to say: ``No, we have those rights under section 35. It is in the Constitution.'' We go to court, and we have the onus of evidence, but it is not fair for the Aboriginal people. I think they should have the non-derogation clause.

The Chairman: I wish to clarify something before we go to the witnesses. When you are referring to amendments, I wish to make it clear to the witnesses that this committee has not put forward any amendments. Whether it does or does not may turn on the evidence that we hear here today. What has happened to date is that a number of problems have arisen, and some people have put forward possible solutions in the form of potential amendments and potential changes, but no amendments have been put forward. I would suggest, Senator Beaudoin, that when you use the word ``amendment,'' you are talking about a possible amendment.

Senator Beaudoin: I agree entirely. I plead guilty. I apologize.

Senator Stratton: Ten years.

Senator Andreychuk: Hard labour.

Senator Beaudoin: I have many friends here.

Senator Andreychuk: You need a good defence lawyer.

Senator Beaudoin: We had the same debate the other day with Bill C-10A and Bill C-10B. I said from the beginning it is study of Bill C-C10B and Bill C-C10A. We have no bill before us and no amendments, only two studies. I do not want to go back to that.

I agree with the chairman. I should not use the word ``amendment;'' the correct phrase would be ``possible amendment.'' Those four principles were discussed with the officials of the Department of Justice. We seem to agree on both sides with the principles of those four possible amendments, and I think the best thing to do is to raise our questions and ask them to reply, unless they want to make a declaration to begin.

Mr. Richard G. Mosley, Assistant Deputy Minister, Criminal Law Policy and Community Justice Branch, Department of Justice Canada: It might assist the committee if I were to make a few remarks at this point in response to the honourable senator's invitation.

We understand the concern about the definition of animal. Although the policy intent was to leave as much flexibility in the statute as possible, there is a concern about the degree of uncertainty as to the extent the definition would cover. As far as the proposal is drop the reference to capacity to feel pain, we can well understand why the committee would wish to do that. This afternoon, I do not propose to offer any further comments with respect to that point, unless there is some assistance we can offer the committee about it.

On the second issue, colour of right, we also understand that the committee wishes to do something about that to offer comfort to those concerned that the legislation may unintentionally interfere with their practices — traditional, scientific or otherwise. On that point, we would offer a suggestion as to how it might be framed. We do have a proposal to offer the committee to consider when you come to clause-by-clause consideration of the bill. We have brought it with us this afternoon and would be pleased to share it with you. If you wish to have it circulated, Mr. Chairman, it is available in both official languages.

On the third point, without lawful excuse and necessity, we do have some concerns about that and would like to address that in greater detail. We believe it may add confusion to the statute, will not achieve the intended result, and should warrant very careful consideration by the committee.

The fourth point is the most difficult for us, and the most troubling. We have a fairly good idea of the nature of the amendment that the committee has considered in camera. May I stress, however, that neither my colleagues nor I have any idea how the press came to be in possession of your document. It is certainly not the practice of the Department of Justice. However, we have been given the opportunity to think about these proposals, and in doing so we are particularly troubled by the fourth one, for a variety of reasons that we would like to share with the committee this afternoon.

If I may, you are now receiving copies of the suggested redraft of the colour of right amendment, and the object of that is to incorporate the specific provisions of 429 that pertain to this question that has come before the committee. It is narrower than a simple reference to 429 as a whole. There are subsections of 429 that have no relevance to the subject matter that is before the committee, and it would be inappropriate, in our view, to cross-reference the section in its entirety.

However, this does capture the notion — although it would mean removal of the reference to subsection 8(3) — the point of greatest concern to the committee, that is, the maintenance of the current content of subsection 429(2) in relation to offences of animal cruelty. We would suggest the words ``to the extent that they are relevant,'' in English, and ``dans la mesure ou ils sont pertinents,'' in French, just to bring home the point that not all of 429(2) would be relevant in the context of animal cruelty provisions. We offer it to the committee for your consideration and we would be pleased to answer any questions you may have on that.

With regard to the third point that Senator Beaudoin has described, it would mean an amendment to 182.2(1)(c), so that it would read everyone who ``kills an animal without lawful excuse and without necessity.'' Our understanding is that this is believed to import the Ménard test in the decision of the Quebec Court of Appeal, which has been very much at the heart of the discussions over the past months.

The Ménard test, as you know, interprets the term ``unnecessary'' in the context of what would be with these amendments 182.2(1)(a) in relation to the causing of pain, suffering or injury. It is not clear to us what ``without necessary'' means or what it would be interpreted to mean. However, we are concerned that it would be interpreted differently from the Ménard test. The Ménard test is not an appropriate test for the offence of unlawful killing. The term ``unnecessary'' in 182.2(1)(a) was interpreted to contain two elements: one, a lawful purpose for engaging in the behaviour that has caused harm; and two, the reasonableness of the means chosen to achieve the objective plus in an interpretation of ``reasonableness'' the notion of proportionality between the purpose and the pain caused.

That test makes sense in the context of harm or injury. If the purpose of the killing is lawful, there remains an obligation to cause as little pain as is reasonably possible. It does not make sense in the case of killing because all that is required for that to be outside of the scope of the enactment is that the killing be lawful.

The Chairman: May I interrupt? On that issue, which I have asked about before, I need clarification with respect to the Jorgensen case. This is a new offence created under the Criminal Code. If I have a provincial hunting licence, which is my lawful excuse, how does that square with the Jorgensen decision?

Ms. Joanne Klineberg, Counsel, Criminal Law Policy, Department of Justice Canada: To clarify your question, slightly, it is not a new offence; it is an expanded offence. It is important to bear in mind that there are offences in the Criminal Code today that make it an offence to kill an animal kept for a lawful purpose without a legal excuse.

The Chairman: There is no general offence to kill an animal without lawful excuse.

Ms. Klineberg: That is correct for animals kept for lawful purpose and cattle. I will respond to the Jorgensen issue. It is not the existence of provincial legislative schemes that is the legal excuse. Those legislative schemes under provincial law are evidence of a common law excuse and a common law purpose for killing the animal. They themselves do not create the legal excuse; rather, they are evidence of there being a purpose at common law that justifies the killing of the animal.

Under the offence of killing an animal kept for a lawful purpose without a legal excuse, euthanasia has been held to be a legal excuse, although I do not believe there are provincial statutes that say euthanasia is permissible. It is a commonly accepted reason to allow people to kill their animals.

That is what is encompassed by the notion of legal excuse in this provision. The existence of provincial regimes is further support for these purposes for which we kill animals, but it is not, in and of itself, excuse under the criminal law.

The Chairman: However, at present, it is not a criminal offence for me to shoot a moose. I have to abide by certain provincial regimes, that is, getting a licence, hunting in a certain area at a certain time of year, et cetera. Right now, if this were to become the law and I were to shoot that animal, I would then have to move to the next part and ask whether I had a lawful excuse for doing that. Could I wave my provincial hunting licence and say that this it is my lawful excuse?

According to the Hon. Justice John Sopinka in Jorgensen, I could not do that.

Ms. Karen Markham, Counsel, Criminal Law Policy, Department of Justice Canada: I think the Jorgensen context is somewhat different. The Jorgensen context spoke to the issue of a mistake as to the application of the criminal law. In this particular situation, with the evolution of the provisions relating to lawful excuse, as Ms. Klineberg indicated, the evolution of the law in respect of animals is somewhat different than it is in respect of people. If you go back earlier in time, it was lawful to do essentially anything to an animal. It was only over time that certain activities became prohibited and certain areas became regulated. In some respects, it is the reverse of how we tended to describe criminal behaviour and liability with people.

In the particular context that you are mentioning, hunting, for example, has been recognized at the common law as a lawful purpose since the beginning of time. It has tended to be with the evolution of law that it is only if the activity is expressly prohibited that it becomes problematic.

We have been using animals for different purposes over time. In Ménard, there is reference to various common law uses of animals. I do not think the Jorgensen application is relevant to that question. The lawful excuse, as Ms. Klineberg has indicated, is evidence of the common law purpose, which is well recognized with the evolution of the use of animals over time.

Mr. Mosley: I should like to add to that. The ``without necessity'' language would not offer you any further protection in that context. Simply having a hunting licence is not in itself evidence of necessity. You may be able to argue, if you were a subsistence hunter, that it added something to it, but that is a highly dubious proposition.

Senator Cools: I tend to agree with the chairman that 182.2(1)(c) is a new offence in that it attempts to be a blanket inclusive offence qualified by lawful excuse. Ms. Markham said that the situation in Jorgensen is slightly different. You also said that hunting is killing for a lawful purpose. Perhaps for the committee's sake, you could explain to us the difference between killing for lawful purpose and killing without lawful excuse. I see those two statements as dramatically different.

Ms. Markham: The test with respect to the lawful purpose as we know is part of the Ménard test. Very often, the issue of industry practices — activities that happen all the time — do not play into the cruelty provisions in the code because usually when there is an assessment of whether the killing was with a lawful excuse we are into situations — and there is case law to this effect — where, say, a dog comes onto someone's property and is either menacing the sheep or the family and the person then shoots the dog and kills it. In that particular situation, the court is engaged in a discussion of whether the actions of the individual provided the individual with a lawful excuse to do what he or she did.

We tend not to get into the issue of lawful excuse in the context of industry practices. The use of animals in those contexts is well recognized at common law. It tends to be that the case law focuses on a more narrow consideration of a lawful excuse in the killing context.

Senator Joyal: Clause 182.2(1)(c) reads in English, ``kills an animal without lawful excuse.'' The word ``lawful'' has a very specific legal connotation. It refers to the law. In French it says, ``Tue un animal sans excuse legitime.''

I call upon my colleagues, Senator Nolin and Senator Beaudoin, in particular. ``Sans excuse legitime'' is much broader than the ``lawful'' aspect — it could refer to any social cause; lawful is law, and we know it is law in the context of the Criminal Code. It is very clear. You are puzzled by that because when I say I hold a hunting licence from a provincial government, I am lawful; I kill with a lawful excuse, I have a licence. However, if I say I kill ``sans excuse legitime,'' the excuse is much broader.

Mr. Mosley: ``Without lawful excuse'' and its equivalent in French are terms of art, which means they have been employed in the statutes for many years. The English is not limited to something that is, for example, set out in a statute or regulation. It has a broader connotation than that.

Let me quote from the Ontario Court of Appeal decision in Royka. It says in part:

The use of the expression ``without lawful excuse'' in offence-creation provisions has long been a common one. No standard or comprehensive meaning can be ascribed to it. In the absence of a special definition being given to it, its meaning has to be determined from the object of the legislation in which it appears and the subject-matter of its immediate context.''

I would also cite the 1988 Supreme Court of Canada decision in Ireco Canada II Inc. et al. That decision reads in part, as follows:

In our view, the term also includes any honest and reasonable belief in a state of facts which if they had been as the accused believed them to be would have made his act innocent. Such excuses would be consistent with the principles of the common law.

The term that the honourable senator has quoted in French is used as commonly as the equivalent of ``without lawful excuse'' in our statutes. There is no distinction in law between the French and English versions. They are both interpreted with the same meaning.

Senator Cools: This is getting worse.

Senator Andreychuk: I wanted to follow up that a provincial licence might be evidentiary proof to a certain extent. It may be one method you could use to prove that you have a lawful excuse, but common law prevails. That is precisely why I think that it is different here. The common law before was an evolving issue. I do not think the standards of lawful excuse 100 years ago is the same as it was 50 years ago. We have case law to prove that.

It is troublesome that, if this is put in, I see any judge, very correctly, being able to look at community standards and today's society and judge it against previous decisions and come to a different conclusion — in other words, common law would be moved in a different direction.

Am I correct in my assessment?

Ms. Markham: The concept that the common law is dynamic certainly is one that is reflected in the case law. I would agree, senator. It is really a question of policy whether people assess that to be a good thing or not.

However, the case law has recognized that the law is a living tree. It is dynamic, to some degree. Certainly, there are parameters as to what constitutes part of the consideration in terms of the test.

Senator Andreychuk: If a growing group of people in Canada believe that eating meat is not appropriate or that killing in abattoirs is not appropriate, a judge might, within the scope of the discretion of the court, using the word of a dynamic common law, come to the conclusion that the act was in fact committed without lawful excuse.

If we are putting in legislation, my concern is that hunters, fishers, workers in abattoirs and religious people may encounter a problem. They know the activity they have today maybe lawful but it may not be lawful tomorrow. What do they use to judge whether what they are doing is lawful or unlawful? It puts them into the position of having to defend themselves in court. A judge may say, ``I do not care that it was done yesterday. Today, I have come to the conclusion that your excuse is not lawful.''

I am trying to get rid of that unease in order that the legislation is clear on what individuals can or cannot do. Good criminal law tells people what is legitimate and what, thus, they can do. Conversely, it tells people what they cannot do and that they will be charged should they do the thing in question. There is a grey area here that troubles me.

The Chairman: Before you reply, Ms. Markam, may I add something that I find just as troublesome about Senator Andreychuk's point. If you are going to rely on the common law as a lawful excuse, how does that square with the fact that once you codify the common law it no longer exists? You are putting in a new offence of killing an animal. You then must go to a lawful excuse, not the common law, to find whether you are excused from doing it.

Ms. Markham: I shall answer both honourable senators at the same time. I understand the discomfort with a concept that seems amorphous and vague. The fact that the words ``lawful excuse'' are in the Criminal Code is not a codification of the defence. The courts will continue to interpret, to breath life into, what that means. The difficulty about the animal cruelty context is that it is fact-specific. There is a need to use concepts that have enough flexibility within them to be responsive to the many different fact situations in which these various activities can occur. That is part of the problem — it feels like it is not nailing it down. However, the not nailing down parts is perhaps one of its strengths, because it can be responsive to different situations.

In terms of the concern about the lawful purpose, Senator Andreychuk, in your example, you moved to a situation where the court would be determining a Ménard test. The courts have tended to see lawful purposes with a very broad brush — large categories of hunting and fishing — and have tended to accept them as common law rights that people have had for a long time.

You talked about the abattoir situation. There was the meat packers case, in B.C., which involved an inquiry, not in terms of the legitimacy of using animals for food, but in terms of whether the methods used caused unnecessary pain. That is perhaps a separate inquiry.

In terms of vegetarians challenging the law in a particular situation, there are many protections in the code against, depending on your perspective, what one might call a frivolous prosecution. As the committee knows, protections were recently added to the Criminal Code in the form of section 507.1 that make it much more difficult for private individuals to bring private prosecutions to challenge these practices.

There are different ways to get at a concern, and I think the protections currently in the code, in terms of the use of the courts for advancing particular agendas, are well in place to avoid that happening. I am not sure that an attempt to pin down the concept of lawful excuse is the best avenue for bringing that certainty to the law, because this particular law in this particular context has to retain flexibility to be responsive to the myriad of fact situations that come before the courts.

Senator Bryden: Clause 182.2(1)(c) says:

Every one commits an offence who, wilfully or recklessly,

(c) kills an animal without lawful excuse.

I, and thousands of other people, hunt for pleasure. We do not hunt for meat or for trophies; we hunt for pleasure. That displeases a good number of people, and I understand that, but is hunting for pleasure a lawful excuse? Forget about the engrafting of provincial law and regulations. Is hunting for pleasure, killing an animal or a bird, if you are successful, a lawful excuse under this?

Ms. Markham: Hunting has been with us since the beginning of time, so although it is difficult to comment on particular practices, my legal opinion is that there is nothing in this bill that would threaten activities that are recognized in common law and that have been practiced for many years. I would say that hunting is not at risk under the provisions of this bill.

Senator Bryden: I mean hunting for pleasure. I do not have any problem with Senators Watt and Adams, who are hunting for meat. They think I am nuts to be out there freezing my butt and hunting for pleasure. Nonetheless, thousands of people hunt and fish for pleasure, and I am one of them. I absolutely cannot excuse myself by saying that I need the meat. I do not know that I can simply accept your categorical statement that hunting for pleasure would be accepted because hunting has been recognized as a legitimate practice for years and years.

Ms. Klineberg: I would have no hesitation whatsoever agreeing with what Ms. Markham has said, that hunting is a common law legal excuse for killing an animal. Lawful excuses sometimes get codified in the case law. In fact, in Ménard, Justice Lamer says, in part, the following: ``The animal is subordinate to nature and to man. It will often be in the interest of man to kill wild or domestic animals, to subjugate them and, to this end, to tame them with all the consequences,'' et cetera. This is one of the ways in which the courts make declarations about what common law acceptable activities are. It is clear in Ménard case. In this case, Lamer also talks about a number of other purposes, such as euthanizing pets if they get too old or too numerous, or engaging in animal research. He also clearly says killing wild animals.

Going back to Ménard, there is a lot in here that states what common law acceptable activities are.

The Chairman: With all due respect, that was before we started considering this offence of killing an animal. The point that I am having a lot of trouble with and do not seem to be getting a clear answer to is this: Does the common law right to kill through a hunt disappear as soon as the Criminal Code makes provision for killing animals and committing an offence? That is what I cannot get past.

Ms. Klineberg: I cannot see why it would, if the expression there is still ``kills an animal without lawful excuse,'' which is open-ended, context-specific and has no special meaning when the Parliament uses it that way. That is what the Supreme Court has said about it. It is a flexible and broad generic term. The other difference that is important to keep in mind is that ``without lawful excuse'' has been incorporated into the offence provision itself, unlike the other offences where resort is sometimes made to section 429. That is where the defences are. They fall outside of what the offence elements are. In this case, and in the poisoning offence, the offence is not that it is an offence to kill; the offence is that it is an offence to kill without lawful excuse. That means that it is part of the Crown's case to prove that there was no lawful excuse from the start. The offence is not simply killing. The offence is built into what the elements are.

The Chairman: The offence is killing an animal under 182.2(1)(c). There is no defence to it, but you could have an excuse for doing it. It says, ``killing an animal without lawful excuse.'' Once you have committed the offence, you move on to see if you have lawful excuse to do it. That is the way I am reading it.

Ms. Markham: To take that one point further, the Crown as a practical matter will have to prove the killing and the absence of an excuse. Because the lawful excuse is a common law concept, one can have reference to the case law to talk about the different types of excuses that might be applicable, depending on the fact situation. The court will also have reference to common usage of animals over the years. In the particular situation that you have described, the Crown will have to satisfy the court not only that the killing was done but also that there was not an excuse for the killing.

The Chairman: Why was this particular clause put in to begin with? The intent of the legislation is to increase penalties, and we are all in favour of that, and to protect animals, and we are all in favour of that. Why was that clause section put in?

Ms. Markham: Sections 444 and 445 of the Criminal Code refer to animals kept for a lawful purpose, which for the most part means animals that are owned or kept under the protection, if you like, of an individual. The policy of the law when these amendments were made was to get rid of some of the distinctions that were made in the code because as you will recall there are also categories of animals that were protected, such as cattle, which were specifically named. These relate to concepts that date back 100 years.

The policy of the reform was to update it and to remove distinctions between different types of animals.

The Chairman: Could that purpose not be achieved much more easily by amending 182.2(1)(a) to say: ``causes or, being the owner, permits to be caused unnecessary pain, suffering, injury or death to an animal''?

Ms. Markham: The difficulty is that the concept of ``unnecessary,'' if it embodies the Ménard test, has not traditionally applied to the killing offence.

The Chairman: It would in this case, however, because we would be putting it in, stating it explicitly.

Ms. Markham: The second half of the Ménard test talks to the means used to satisfy the lawful purpose. The killing offence is with regard to the killing part only; if pain was caused, there is a second, separate offence. Therefore, it is not clear how the necessity test, which is Ménard, would apply to the straight killing, whether that would bring clarity to the law.

The Chairman: I think it would bring much more clarity than what is being brought by adding a whole new offence.

Mr. Mosley: If I may, I have a better sense from the exchange around the table of the concerns of committee members about this point. What has been proposed, as I understand it, as an amendment, does not address Senator Bryden's concern or the one the chairman raised earlier. It would not put you in any better position with regard to hunting.

There is another form of words that might address your concerns, and that would be simply to add on to the end of that paragraph the words ``or justification'' — ``without lawful excuse or justification.'' Excuse and justification are two different things in law, but if the act is justified it is not a crime.

The Chairman: Food for thought, Mr. Mosley.

Senator Cools: On the same point, and I thank the witnesses, but what has become increasingly clear to me is that the witnesses are not that clear because some of these statements are opining. Ms. Markham was saying ``I think so,'' in a very quizzical sort of way, which does not bring me much comfort.

What I do not hear from any of you witnesses is that in actual fact these new proposals will be creating a new legal framework and that all judicial interpretation will be subjected to this new legal framework and not to the old one. You do not seem to be putting that consideration into any of your statements — in other words, that the legal landscape is changing with this.

I have no doubt that there are many jurists out there who will soon declare that killing an animal in a hunting episode just because you were having fun or recreation is not a lawful purpose. I have no doubt that there are jurists out there ready to make that leap in the law.

Therefore, what you are saying offers me little comfort because I know a fair bit about what is happening on the ground.

If I can go back to Mr. Mosley's statement, where you were trying to explain ``lawful excuse,'' you read a judgment in which you said there is no standard comprehension of those words. Am I correct?

Mr. Mosley: That is right.

Senator Cools: You said that one, obviously a judge or a court, must consider the object of the legislation and the subject of the context. I believe that is what you said, those two items, the object of the legislation and subject of the context. I would flip that back to you. Within legislation, and within the objectives of this proposed legislation and the context, ``lawful excuse'' has a totally different meaning from what it may have had before, and it would be used that way, I have no doubt.

Mr. Mosley: However, I would suggest, honourable senator, that the context and experience of the law in this regard would be relied upon to interpret these terms, because these terms are essentially the same as are currently in section 445 of the code, with a major exception, and I grant you this. The major exception is that it now applies to wildlife as well as to animals that are kept. That is a significant difference; there is no question about that.

However, the concept of ``without lawful excuse'' is a very flexible concept. It encompasses practices and behaviours that society regards as proper and lawful. In that regard, we believe, and we have no lack of confidence in our opinion on this, that hunting, being a widely practised recreational sport, as well as a subsistence practice, falls within those words ``without lawful excuse.''

I will be clear that we have no doubt about that.

Senator Joyal: I thank Mr. Mosley for proposing a way to limit the absolute interpretation that could be given to ``killing an animal,'' that is, by adding justification. Certainly — and I was listening carefully to what you were saying — in French, when we say it is legitimate, it means what is acceptable; it is legitimate, it is acceptable. I can understand that the two concepts can vary in English and in French. If you add ``justification,'' you help to define or bring the two concepts closer to a point.

Let us take an example, though. The objective of the bill is to prevent inflicting injury or pain to an animal. I ask you to imagine our friend, Senator Bryden, going to hunt with a bow and arrow. As you know, there are people who like to hunt — and I am not talking here about Aboriginal people. An animal that is the object of hunting using a would be killed instantly by a bullet; however, an animal that is the object of hunting using an arrow, unless the hunter is very precise and hits the animal in the heart, will not die immediately. Under that scenario, there may be a period of time where the animal may suffer. As a matter of fact, the arrow may only injure the animal; the animal may not die.

In the context of this philosophy of this bill, which is to prevent inflicting injury and pain to animals, would my arrow scenario be interpreted, in the context of this bill, as inflicting unnecessary injury? In fact, under this bill, should a hunter hunt in the most efficient way of killing the animal?

Mr. Mosley: It is a good example to discuss the application of this provision, but I would suggest that someone who is careless in their use of a firearm, someone who does not position himself properly in which to use the firearm effectively, someone who takes a shot with a firearm reckless as to whether that shot will take effect, may be equally as blameable as someone who uses a bow and arrow ineffectively. This is not something in which I have any expertise, but I understand that bow hunters can hunt with great efficiency and can kill their quarry as effectively as with a firearm, if it is done properly.

The issue, therefore, I would suggest, is one of whether the hunter is wilfully causing pain to the animal or recklessly causing pain to that animal, not the specific means being employed in order to carry out the hunt.

For example, on our last appearance here, the use of the harpoon was raised as an example. In the context of hunting seals in the North, the harpoon is an entirely appropriate instrument to use for that purpose. A bow and arrow may be an entirely appropriate instrument to be used.

The issue is whether the person wilfully or recklessly causes unnecessary pain, suffering or injury, not the instrument. You need to look at the mental element involved here as well as the actual facts of the incident.

Senator Baker: On that last point, with respect to seal hunting, there is a provision in the Marine Mammal Regulations, under the Fisheries Act — I do not know if you have had a chance to look at those regulations. I will remind you again that, under the Fisheries Act, colour of right is codified as a defence. However, under the Marine Mammal Regulations, it says that you must kill a seal instantly. Senator Adams knows all about this, as does Senator Watt. In fact, it prescribes how the seal is to be killed. The skull must be crushed instantly. If the skull is not crushed instantly and that seal is handled, the individual has violated the Fisheries Act.

There was a classic case. At the very time that Senator Beaudoin was honoured in London, Ontario, by the Canadian Bar Association, another award was given that same day. That award was for the successful defence of sealers who were charged with not crushing the skull immediately to meet the provisions of cruelty under the Marine Mammal Regulations. You might say that those provisions are not cruelty provisions, but they explicitly spell out how the animal must be killed and that the killing must be immediate.

A witness who appeared before this committee was the very lawyer that, in a big spread in Ottawa, exposed the videotapes of the sealers who had violated the cruelty provisions of the Marine Mammal Regulations. They were alleged to have dragged the seals aboard their boats while the seals were still flipping and skinned the seals while they were still alive. The court case that ensued, for which the award was made, showed that the tape had been edited 70 times in a one-minute segment by a professional editing bureau in California. The case was thrown out, and the Court of Appeal made the judgment that the videotapes were not admissible. However, had those videos been admissible, the sealers would have been found guilty because they did not crush the seals' skulls immediately and thus bring immediate death.

Senator Adams is nodding because he knows exactly what I am talking about.

Everything is spelled out in the Fisheries Act. Hence, our concern that colour of right was in the Fisheries Act but not here under the Criminal Code. That is why these people were all concerned about it. The defence was not there. You would have groups that would then prosecute under this new law instead of prosecuting under the Fisheries Act where there was a protection of colour of right. Now it looks like we may get a protection of colour of right.

I am sorry for stretching this out. As you pointed out, under the Criminal Code, everyone is treated the same. In Canada, there is not a law for the North and one for the South, as you pointed out so clearly for the committee. Hence, do you want to backtrack a bit and change your answer of a second ago and say that perhaps the harpoon would be legal if we did change the present bill so that we did have a colour of right as we have under the Fisheries Act?

You may disagree.

Mr. Mosley: This gives me an opportunity to rectify something I forgot to do earlier. In offering a suggested wording with regard to colour of right, by no means is it meant to suggest that we do not stand by the position that we have advanced at this committee on several prior occasions that colour of right is part of subsection 8(3) of the Criminal Code and already applies to the state of the law. Clearly, that has also been expressed on several occasions by the present and former Ministers of Justice.

However, coming back to your point about how the law applies to someone who is killing an animal and perhaps does not use the right technique or the best technique. That is in fact what the Ménard case was all about. It was about someone was killing animals without using a readily available technique, the same technique, in a sense, but executing it in a means by which pain and suffering to the dogs in question would not be occasioned.

The criminal law does not treat people as though they are automatons. The criminal law takes into account the mental state of the individual at the time he or she is doing the act. If, inadvertently, an animal is killed by a means that is not the most appropriate, that does not meet the legal standard of wilfulness or recklessness.

It can easily happen. In the Comber case, discussed with you previously, is an example of that. Someone shoots at a dog running on his property, planning to scare it away, but accidentally hits it. The B.C. case that was referred to by my colleague involving the slaughtering of hogs is another example of where the method that they were employing met the legal standard and would have met the Ménard test.

However, inevitably, in applying those standards, people will make mistakes. They will kill a seal perhaps by not properly crushing the skull, as you have suggested. That does not mean that they will be caught by the criminal law. If they adopt a practice deliberately or they show wanton or reckless disregard in the practice they adopt, they may be caught by the criminal law, but that is a different situation from the one Senator Baker describes.

Senator Baker: I am glad you added that because this is on the official record and I think that is a good explanation. When you were talking about intent, whether or not the defence is used is, for our purposes here, perhaps not as important as to have it there in case it is going to be used.

Senator Cools: I come back to lawful excuse, because I am still not satisfied. A few minutes ago, the witnesses said in response to Senator Bryden's question that recreational hunting is lawful in accordance with the common law for centuries. I was trying to make the point that this bill is creating a new legal framework and so, to my mind, it is simply not adequate that the witnesses can offer us the comfort that the common law has protected these activities lawfully. My understanding, Mr. Chairman, is that once the common law is codified — and in this instance the codification has taken the form of a criminal law, the Criminal Code — the statute displaces and supersedes the common law to the extend that the common law falls away. That is my understanding. Remember, I am not the lawyer around the table. I have no legal training, as have some of my eminent colleagues, but my understanding is that the lawfulness that the witnesses are assuring us of in respect of the common law or the lawfulness of the activities within the common law will simply fall away in favour of the new statute.

I must tell honourable senators why this has been bothering me for the last half an hour. If you will recall, Mr. Mosley, Mr. Chairman and colleagues, in Mr. Mosley's last testimony we questioned him on many issues and he cited on at least one or two occasions the 1987 Law Reform Commission Report, No. 31, ``Recodifying criminal law.'' I should like to put on the record a quotation from that report that goes to the heart of the matter. What I understood Mr. Mosley to be saying at the time was that they had relied on this particular report of the Law Reform Commission. I will read from page 97 of that report. The Code — this was the proposed code that the Law Reform Commission was proposing —

...rejects the notion of any parallel between animal crimes and crimes against the person. It does not, for instance, criminalize the killing of animals because any such message would be thoroughly diluted by all the exceptions to it, would appear hypocritical in theory and would work unfairly in practice.

The Law Reform Commission's report cautions against a blanket prohibition against the killing of animals because the dilutions and having to provide exceptions and in which cases the exceptions would apply would have the consequence of working unfairly. It would dilute the law itself and work unfairly.

These are very strong words. The president of the Law Reform Commission at the time was Allen Linden, now Mr. Justice Linden. These words in this report are a very strong caution, to my mind, not to create a blanket prohibition against the killing of animals. I wonder if the witnesses could explain that in the context of what I had to say about the common law falling away and the statute reigning supreme. Could you give me some comfort?

Ms. Klineberg: We can begin with the fact that, since 1953, at least, there has been a prohibition on killing kept animals — those would be all the domestic animals — except where there is a lawful excuse. There have been a number of prosecutions under that provision. The courts have been interpreting the phrase ``without lawful excuse'' to mean a number of things. It has been used to acquit people in the cases of killing where the animal is killed in defence of property or in defence of other human beings. It has also been held to be a lawful excuse to euthanize ill animals.

What we had been going on was the interpretation of that phrase in the offence of killing kept animals without a lawful excuse. In addition were the comments made by Justice Lamer in Ménard about all the additional reasons we may wish to use animals to subjugate or kill wild animals, which is further support for the court's ability to recognize a wide range of reasons for both using animals and causing them pain, and also for simply killing them straight out.

This bill, as Mr. Mosley explained earlier, expands that to, yes, for the first time, cover wild animals, but the offence of killing kept animals without a lawful excuse has been part of the Criminal Code for quite some time and has operated without any difficulty. A number of excuses have come to fall within that definition.

Senator Cools: I know, but with all due respect, you are merely repeating to me what you have already said. I am trying to get your minds to move from the old legal framework to the new legal framework that this bill will create. We are trying to look into the future to comprehend and grasp and take cognizance of how the courts will interpret this in these new legal circumstances, not how they did it under the old framework.

How will the courts act within this new legislative framework? I see this as dramatically different from what predated it. There can be no doubt that this new framework is intended to ``upgrade'' the position of animals and moral behaviour toward animals. This is where I find that your testimony does not answer many of my concerns. I understand that you people work hard and that you are very diligent. I have much sympathy for that. I understand that you have to draft within the circumstances that you find yourselves in. However, as I read a lot of this legislation, I see that this drafting has taken place with an enormous degree of naiveté, not understanding or accepting the dramatic sets of circumstances that are occurring in our community where the law is being forced to respond to all manner of what I would call new social demands. That is my fear and my worry.

Mr. Mosley: The Law Reform Commission has one view of how the law should be crafted. Some of the Law Reform Commission's very many proposals have found their way into legislation. On occasion, Parliament has flatly rejected recommendations made by the Law Reform Commission in its reports in the 1970s and 1980s. Others have been adopted. They had a process that resulted in recommendations. There was a process that resulted in this bill. That process involved extensive consultations outside the Department of Justice, and a fairly lengthy period of time during which the bill has been in the public domain in the other chamber and in this chamber, and a great many views have been expressed on it.

During that period, which now runs to four years, I do not believe we have heard of much support for the proposition that the Law Reform Commission put forward in 1987. There is and has been a great deal of support for the notion that the killing of animals should be extended in the context of without lawful excuse, in the context of a mental element requiring wilfulness or recklessness and should be extended to all animals, not just those that are kept.

I would suggest that there is an enormous amount of support for that proposition. There is a new environment in the sense that what the government heard in its consultations was a desire on the part of Canadian society to move forward beyond the 1953 standard. In 1953, it was an advance in our understanding of how animals should be treated, but that was 50 years ago. Today, confining this simply to the issues of pain and suffering or injury, would not, in my most respectful submission to you, encompass the scope of what this bill is intended to cover.

Senator Cools: Mr. Mosley, in your testimony before us in February, and I am looking at Issue Number 8 of the proceedings of this committee, you tell us at page 8.68:

I would suggest that the bill actually achieves what the Law Reform Commission sought to do.

Mr. Mosley: With the greatest respect, the context of that question and answer was quite different. That was a question, if I recall, put to me by Senator Joyal having to do with a very specific point that Senator Joyal wished to make through question and answer. That was not a general response from me to the entirety of what the Law Reform Commission had to say on this subject.

Senator Cools: Mr. Chair, regarding the particular report to which I am referring, the truth of the matter is that the Law Reform Commission did not say very much at all. In actual fact, the total chapter is about three pages. Therefore, it is not very much. If you were to look at the report, it is called ``Chapter 20: Crimes against Animals,'' and it is partway through page 97, page 98 and halfway through page 99. It is a very miniscule amount. As a matter of fact, for the amount and the totality that this commission's report was cited, I was expecting a substantial document or substantial quantum written on the subject matter. Not very much was offered in terms of the Law Reform Commission, and it is very difficult to take some of it without the rest of those three pages. Again, the section is entitled ``Chapter 20: Crimes against Animals.'' It moves forward clearly, and it is crystal clear that any changes to the Criminal Code should not capture innocent — should we say innocent people — but persons who are hunting, trapping, and so forth. I do not know if I am misreading this. It is entirely possible, but my reading of those three pages lead me to some very different conclusions.

Mr. Mosley: I do not want to prolong the discussion on that, but the specific reference that you drew to my attention, Senator Cools, had to do with page 97 about criminalizing the killing of animals. If I recall the exchange we had on the last occasion, it had to do with the commission's actual proposal, which falls on page 98, having to do with setting out a number of exceptions and that was where we had a discussion.

Senator Cools: Mr. Mosley, in that committee's proceedings, you are in an exchange with Senator Joyal in respect of the recommendations of the Law Reform Commission, exempting certain typing types of activities from criminal sanction. That is the exchange you were having with Senator Joyal, and I just took it upon myself to read the original source, and I just thought the record should be enlightened by that additional fact.

Perhaps then, Mr. Chairman, with your permission, I will read the full paragraph of what the Law Reform Commission has to say. It would be useful for the record. I will read page 97:

The new Code aims to avoid mingling cruelty to animals with property offences, to concentrate on general principle rather than on specific marginal activities and to provide for modern institutional practices like scientific experimentation. Recognizing, however, that animals are different from people, that killing animals for food, for hunting and for other purposes is socially accepted and that large-scale social reform in this area cannot come overnight, the proposed Code rejects the notion of any parallel between animal crimes and crimes against the person. It does not, for instance, criminalize the killing of animals because any such message would be thoroughly diluted by all the exceptions to it, would appear hypocritical in theory and would work unfairly in practice. Instead it focuses on the central idea of unnecessary cruelty and aims, not so much to protect and preserve animal life, but rather to ensure its humane treatment.

The record should have that for fulsome consideration and for a fuller understanding that the intent of the recommendations of the Law Reform Commission was that any Criminal Code amendments would not capture or include behaviours that we now think are perfectly normal and natural.

Senator Bryden: I want to quickly come back to the illustration that was used of the bow hunter, and I do not mean to worry this issue like a dog with a bone here. However, what concerns me is the fact that we are in a whole new parameter, and one of the jobs of this committee as part of the upper chamber is to ensure that within the scope of expanding the legislative framework we do not encompass within the wording of the amendments, and so on, problems that we could have foreseen that we did not foresee.

I am not worrying this simply to be devilish — I believe it has a great deal of significance. However, I was speaking to the point that ``Every one commits an offence who, wilfully or recklessly...kills an animal,'' and then we got into ``without lawful excuse,'' and I used the example of hunting and hunting for pleasure. We said that that would be universally taken as a lawful excuse, and Senator Joyal asked about the situation of the bow hunter. If you hit properly, a rifle now kills by shock more than anything else. A bow and arrow does not. The reaction of Mr. Mosley was interesting, because the illustration was given that if you were very accurate and you hit the animal in the heart with the arrow then it could be as instantaneous as a rifle.

The problem is that the heart is not the target of a bow hunter. A bow hunter shoots the animal in the lungs. He does that because the lungs are bigger targets and damage is done more readily because they are not as well protected. However, one of the consequences is that the animal dies because it bleeds to death internally.

I do not know whether that is more painful, less painful, or whatever, but my point is this: If we follow some of the reasoning that we have been using here to say you would not catch lawful hunting, most of it comes back to being justified because of the hunter-gatherer thing. Then, if you use it as a sport, I was waiting for someone to say that we make a lot of money out of tourism with all the Americans who come in and shoot our animals, and so on, and if that is a justification maybe it is.

However, the actual culture and practice that has grown up around certain activities that relate to animals under some of these provisions, and indeed with some of our amendments, will have a very difficult time being sustained. Maybe they should not be sustained. I am not saying that maybe they should not be sustained, but we should be aware that what we are saying is that if you are deer hunting and you kill a deer then you kill that deer by the best possible manner.

Mr. Mosley, you are absolutely right, a hunter tries to be as careful as possible but sometimes a hunter still misses. Sometimes, with the best rifle, best scope and best equipment, a hunter still misses because the deer may jump, but he did not intend to miss.

My area of concern is that we do not capture within the provisions practices that we do not realize that we are capturing. If that is the intention, then we better start laying out on the table something that says, ``We did not think about bow hunting yet, but, by God, that is right.'' If that is the practice, to hunt deer by shooting them in the lungs, then we can prosecute under this section now. If that is the intention, we should know that and we should be clear.

In closing, let me just say that thank goodness we are not drafting the bill here, because I am high on definitions, as you know, and the definition of a camel is a horse that was put together by a committee, and, indeed, we would have one wonderful camel if we put it together this afternoon.

The Chairman: Just before you reply, Ms. Markham, Senator Watt had something to add to that point.

Senator Watt: There is one area that I feel needs to be addressed, also along the line of using a bow and arrow. A fish is an animal. We do have Americans coming up to the North and they use catch and release. Most of the camps that I know of have a catch-and-release program, but, in a sense, the fish do suffer, I believe, to a certain extent, and eventually some will die depending on how they were handled. How do you determine that? I think that will fall into the same category you are discussing.

The Chairman: That is a good point to add.

Ms. Markham: It is perhaps helpful at this point to put on the record again that which has been put on the record a number of times through the entire parliamentary process, which is that the intent of the government in bringing forward these reforms was not to change liability in respect of activities that are currently lawful. I believe on a number of occasions the former and current minister have indicated it was to bring clarity to the law by setting out the offence provisions in a logical manner, distinguishing the intentional cruelty offences from the negligence offences, updating it in terms of removing distinctions between different types of animals.

The goals were modest. They were and are truly to clarify the law. It is hoped that those objectives have been met in terms of the current structure; that was the reason for the reforms.

I should like to respond to the issue of changing the law by changing the structure. The tests for liability are the vehicles by which liability is changed. It is important to note that the tests for liability have been maintained, save and except for the expansion of the application of all offences to all types of animals, the killing, for example.

The fact that there is a different structure does not in and of itself change the test for liability. That is an important fact for the record as well, just to remind the committee.

Senator Bryden: The reason that I raise the specific issues that I do is that I totally accept that it was not the government's intention, nor the Department of Justice's, to create some sort of scheme that goes way beyond. However, as we all know, once this is done, once this becomes the law of the land, the first place the courts look for what is the intent of this legislation is in the words that are actually used. It takes a lot of circumstantial evidence around it before the clear meaning that any legitimate thinker could take from the words that are actually used overcomes the intent expressed there. That is the principal basis.

I do not think any one of you, or anyone else who has been dealing with this, is in fact attempting to use words that are ambiguous or not as clear as possible. I also think, however, that it may be possible since we are breaking new ground in many ways here. It has taken four years to get the shovel, for God's sake.

However, you might not have looked at the intent expressed from all of the possible sides. One of our jobs is to try and ask you to do that.

That is the end of my lecture for tonight.

Ms. Klineberg: May I make one brief comment in response to that? We absolutely agree that the concern should be looking at what courts might do with this once it is passed. Four years ago, at the time at which this legislation was drafted, there were two choices available. Since we were trying to do something new, we could erase everything and redo it from scratch, borrowing from models in other countries and using different words. The choice that was made, as Ms. Markham said, was to maintain the language of the existing law, which has been static for about 50 years now. Some of it is older.

The decision was made to maintain the language to the greatest degree possible. The reason for that was simple. The believe was that, if we did that, then courts would look at this bill, once it is passed, with 50 years of jurisprudence that interprets those words. It is a very small step, not a large step, to go to all the existing case law that interprets those words, since they are not changing. Maintaining the language, as best as could be done, does the greatest job at preserving all of the case law that has come up, until now. Had we started drafting from scratch, then we could all sit around the table and ask ourselves, ``What might a court do with this word or that word?'' Almost all of these words have a judicial history. We believe without a doubt that that will continue to apply in the same way. This is not a new structure but rather a rationalization of existing offences that are somewhat complicated and overlapping now.

If we go back to the statements made by the previous minister and the current minister, long enough ago now that I cannot remember exactly what they were, the goal was to rationalize existing offences and make the scheme more comprehensive and understandable without doing anything new. With that in mind, we submit that it is not a big stretch at all for the court to look at everything that has come before and to apply it in the same way. Had we done otherwise, the risk would be far greater.

Senator Bryden: Thank you I appreciate that. I believe you are right; it would have been greater risk. I am not totally convinced that there is not some small degree of risk.

Senator Joyal: I am sure the expert witnesses that we have will concur on this. We have to read the bill in its entirety. When you start with a definition that says an animal is any animal that can suffer pain, and then you talk about injury, and then you talk about pain again — there is an economy in the bill, as we say in French, in the bill. In other words, there are values and concepts that are moved through the bill. Those concepts help to explain those sections that raise questions. No matter the good intention of the department, and we do not question that, at the end of the day, that goes across the street. We then discover that what we wanted to do is interpreted differently.

When we move on grounds that are difficult to define precisely, we should pause and determine if we are going too far. Should we frame the concept in more precise terms?

There are places in the bill where the concepts are framed precisely. I cite as an example 182.3(2), which defines the word ``negligently.'' The word ``negligently'' is very well defined in the context of that offence, and that helps to circumscribe the offence. It is a very good element to show the intention to the court. If you leave ``negligently'' with no qualification, it could be interpreted in a multitude of ways.

In clause 182.3(2) of the bill, ``negligently'' is defined. In other places in the bill, the expression ``unnecessary pain'' is used. We could define ``unnecessary.'' I am not saying that we will do that, but we could, for the purpose of that section. That might help the court to respect the intention that you have and that we share.

However, when you have loaded words or concepts in a section that is new, it opens a large domain, even though we try to include what it was before. Nevertheless, it is a new bill, a new concept. That is what we are wrestling with, with respect to this bill. We are not opposed to the government increasing the penalty. We are horrified by cruelty to animals. We all agree with that. We are just trying to make sure that what we are doing reflects essentially what we have in mind. What have in mind, as you said, is to protect the legitimate, lawful, justifiable practice that Aboriginals, hunters and fishers have.

Once it is out of our hands, it will find its way to court sooner or later, and I would think sooner than later in the present context of the awareness that exists in public opinion. That is essentially the point that Senator Bryden is trying to make. I am trying to make the same point with my examples.

This is an important element in these proposed new sections. We need to look at the new proposed sections that widen the crime of killing an animal. It will cover the entire spectrum of animals, wild or domestic.

There was the problem that we had with the definition. The scientific community was still uncertain in terms of that. We had experts to help us to try to understand that.

You will understand that we are not trying to prevent the government from adopting this bill. We are trying to circumscribe those concepts in the bill that would, in fact, warp the intention that you had and that we share. We should recognize, as you said, that the intent is not to change the present practice of the government. We do not want to change the practice that our society generally accepts for hunting and fishing and so on. The Aboriginal people, in my humble opinion, are in a different group because of their constitutional rights.

You might, as we might, in some years down the road read a decision of the court and say, ``That is not what we had in mind; that is not the way we would interpret that.'' I do not need to give examples to that effect. It is part of our recent life. The courts are full of cases where recent legislation is the subject, legislation in which we thought we have spelled out clearly our intentions, by an objective clause of 10 pages. The court nevertheless says, ``yes, but'' at the end of it.

My friends and colleagues have been trying to tell you that we are not opposed to this bill. We need your help. You have cooperated today to try to help us to analyze the extent of the recognition of the present practices that you want to protect and that we want to recognize. We want to be clear on those practices that are considered legitimate, explainable and lawful in our society of today.

Senator Sparrow: We have very learned lawyers before us with certain expertise in many fields. We have been discussing, basically, one line in 182.2(1)(c), to wit, ``kills an animal without lawful excuse.'' If we are spending this amount of time and cannot reach some decision, what about the person who is affected by the law ? What does the person who is poisoning gophers or shooting moose do? If he were to come to me tomorrow and ask, ``What does that mean?'' I would say, ``How should I know?'' That is true — we do not know. We cannot reach a meeting of minds and so we are trying to push a piece of proposed legislation that we cannot even agree on. How crucial is that?

Mr. Mosley, when you were here before, I think you said that the courts would just have to decide. The people who would be affected by this would face fines plus the costs to take it to the first level of court, let alone the court of appeals. That is a pretty scary prospect. We cannot even agree that the change must be put in to protect those people. What are we doing? It is shocking that this would happen. It is not good enough to say that the courts will decide. We need to have some meeting of minds that it appears that if it did go to court the court would uphold this decision.

You said to us that ``without lawful excuse'' is not a legal decision, that it is a general term the court uses. If it is a very general term, then is it a lawful excuse or is it not? How could you use that as a general term? ``Well, we did not mean that it was a lawful excuse; we mean you killed the animal.'' That is what we are faced with — the killing of rats or gophers — wild animals, not tame animals. What excuse could one give? One member of the committee asked if enjoyment would be an excuse. We do not have that answer.

Will people, who are not farmers or ranchers, who kill gophers in Saskatchewan be able to find a lawful excuse to defend themselves? No. The threat exists that groups are already prepared to stop that process. They are saying just move the gophers somewhere else. That is what we would face if we were to accept the bill as it stands. We would be in real trouble.

Mr. Mosley: With respect, honourable senator, you did not quote me accurately —

Senator Sparrow: I never do.

Mr. Mosley: I understand that, in the context of the past few hours, we could lose a little precision. I was trying to convey the notion that the term ``without lawful excuse'' is a wonderfully expansive term of art in law. It covers a broad range of behaviour — known, unknown and unforeseen — that allows for flexibility in the administration of the law. If you try to get away from it and add specifics to the bill in this context, then, inevitably, you will limit by exclusion. Leaving a term such as lawful excuse in the law allows those who administer the law a great deal of flexibility.

I will give you an illustration. Right now, under the existing law, people quite routinely euthanize their animals. The existing law covers animals that are private pets, et cetera. I do not recall ever hearing anyone suggest that the criminal law had a role to play with regard to that particular fact situation. It just has not come up over the past 50 years because it is generally accepted, as former Justice Lamer pointed out in Ménard, that you can do that with your animals. You gave the example of someone poisoning gophers. There is undoubtedly a very good reason for doing that — perhaps the gophers are digging up the pasture.

Senator Sparrow: Sorry, I referred to people on property other than their own because that is where the gophers are.

Mr. Mosley: It is not tied to the question of ``your property.'' The issue of colour of right may be if you have an honest but mistaken belief that you were entitled to do it because it was on your property. However, the parameters of ``without lawful excuse'' are not limited to conduct or behaviour on your own property.

It is not uncommon, for example, for people to shoot gophers. In fact, there is a contest in Saskatchewan where they encourage people to shoot gophers all over the province and turn in their tails. Why, because gophers are nuisance rodents that cause harm to farms all over the province. It is entirely appropriate to limit their population. It can be done through a wide variety of means. That would fall within ``without lawful excuse'' whether on your own property or on someone else's property.

We are concerned about an effort to anticipate the application of this law to situations that have been described. You are searching for some magic form of words and I do not think there is one. I have suggested the addition of the words ``or justification'' because that does expand the scope to include conduct that you clearly have a right to. It is not just that you are excused from committing the act, because of the circumstances, but that you have a right to do it. I would suggest that the circumstances you have described would fall into that category.

The chair has proposed, I believe, a term I heard earlier this evening — that is, adding the words ``or death'' to what is now in 182.2(1)(a). With the greatest respect, I do not think that would address your concerns at all. It would shift them from (c) to (a) and you would lose the benefit of that expansive term ``without lawful excuse.''

Senator Sparrow: Allow me a supplementary on that. It seems to me that the legal minds are at a different mindset than, perhaps, the minds of the Department of Justice, where they are concerned about that aspect of (c). If they are concerned, Mr. Chairman, then something has to be done about that, and our legal minds are interpreting it as a problem. What about the police in those small constituencies and small towns? What about the conservation officers who read this and deem it to be not lawful excuse? What about the prosecutors, who may not possess the legal minds comparable to those in this room, who may look at it and say ``that was not a lawful excuse''? How many times will we go to the courts and find someone guilty because they would not be able to afford to appeal it anywhere else? That is the danger if the meaning of the law is not clear.

From what I gathered before, this law is not clear. We have to clean it up in some way. In turn, I think someone asked the question, and perhaps we need your help.

The Chairman: Thank you, Senator Sparrow. I want to revisit the issue of moving death up to the section above. I think the question was asked of Ms. Klineberg whether injury would include death?

I think your response to that was ``no.'' Is that correct?

Ms. Klineberg: I am not sure I remember being asked that question.

Senator Joyal: I do remember it was asked. I do not want to quote you, of course; I would not do that. If I remember the answer, and you can tell me if I heard you correctly, an injury might, at some point, be the direct cause of the death. For instance, an injury can bleed, for instance, a living animal to a point where death will be caused. However, an injury per se is not a death. I think you made the distinction between the two. There was a nuance that you made.

Ms. Klineberg: Certainly, I am not aware of any case in which injury in section 446(1)(a) has been interpreted to include death. I do not think in this context that injury has been interpreted that way. I believe there are other sections that may speak of injury or death, or bodily injury. As far as the Criminal Code is concerned, they are generally probably different concepts.

The Chairman: Mr. Mosley, just to move off that and to come back to the point that you made, would not the wording of (1)(a), unnecessary pain, suffering or injury, import the Ménard defences?

Mr. Mosley: Ms. Markham will respond to that.

Ms. Markham: Just so that I am clear, the amendment that we are talking about is ``kills without lawful excuse or necessity.'' Is that what you would like me to address?

Senator Joyal: No, to add death.

The Chairman: After injury.

The Chairman: Just to go back, Mr. Mosley claimed that that would not help us in any way because it would be taking out the more general lawful excuse. My question is whether it would, because of the specific wording, import the Ménard defence.

Mr. Mosley: Before my colleague responds further, to be clear, I was responding to the point about hunting practices in particular, recreational hunting practices specifically.

Ms. Markham: The difficulty is that the Ménard test of causing unnecessary pain, suffering or injury is, as we have discussed, a two-part test that speaks to the first part, which is the lawful purpose, and the second part, the means, whether the means were reasonable having regard to other means. That test is not relevant. Only part of that test is relevant to the offence of killing.

In that offence provision, you would have a provision that contained inconsistent elements. You would lose clarity in the law, because you would be attempting to import a test that speaks to a particular activity and yet includes an activity that does not refer to half of the test. If the goal is to maintain clarity in the law, it is much clearer to separate out the killing offence, which has different elements, and marry it up with the lawful excuse or justification.

The Chairman: Even though it is creating a whole new offence?

Ms. Markham: Yes. One understands the desire for a certain amount of risk management, but unfortunately what happens is that the elements of other certain offences can become compromised. It would be my respectful submission that if you were to add killing, which has different elements, in the same offence, you would lose clarity rather than add clarity to the law.

Senator Beaudoin: I have only one question. They say in the text, ``without lawful excuse.'' In French, they said, ``sans excuse legitime.'' I have no doubt in my mind that, prima facie, it is a strange translation. Something may be lawful, and something may be ``legitime,'' but it is not exactly the same thing, in my opinion. Even in constitutional law, which is something different, and we are in criminal law, but in constitutional law, something may be legal but not necessarily ``legitime.'' We make a distinction.

I remember the cases before the Supreme Court. You may do it under a convention, and you may do it under the Constitution, which is not exactly the same thing.

My question is this: Did you have any problem with the differences that may exist between lawful excuse and ``excuse legitime?'' If it is a long tradition, and there has been no case on this, I am not afraid of it. I still think that it is not a very good translation, but I have no suggestion to make for a better one. In the jurisprudence that you know are aware of, has this problem occurred in the past?

Mr. Mosley: I am not aware of it having been a concern in the past, although, as I pointed out to Senator Joyal, the term ``excuse legitime'' has been used in the existing provision, section 445 of the code, since 1953. I believe that is the date of enactment of that.

Senator Beaudoin: And there is no case?

Mr. Mosley: Not specifically on the translation in this context. We have not done the research as to whether there is any case on that issue in another context because the term ``without lawful excuse'' is used quite frequently. I do know that it is also translated as ``sans excuse legale.'' However, if your point, which I accept, is that the concept of ``legitime'' is broader than ``legale,'' that lends support to our argument that an interpretation of ``lawful excuse'' in this context, reading as well ``sans excuse legitime,'' would be given a very broad interpretation.

Senator Beaudoin: Yes, but the fact is that, prima facie, it is not the same thing, in my opinion. ``Sans justification legale'' or ``sans excuse juridic'' would be a good translation, but if you say ``legitime,'' that does not mean according to the law. That means according to some other principles.

Senator Joyal: Some other norms.

Mr. Mosley: Which is how we suggest the English version, ``without lawful excuse,'' has been interpreted by the courts — very broadly.

Senator Beaudoin: But it should not be too broadly, because you need to have a lawful excuse.

Mr. Mosley: Not if you are reading it in the sense of having to have a statute or a regulation in place to justify your behaviour or to authorize your behaviour. That is not the way the courts have interpreted it.

Senator Beaudoin: In that answer, I see your point. With the excuse, if it is legitimate, it is broader. There is no doubt.

Senator Joyal: There is no doubt, because when we use the word ``legitime,'' it refers to norms that are not codified, an unwritten way of behaving.

Senator Beaudoin: That has nothing to do with legality.

Mr. Mosley: That is how Lamer interpreted it in Ménard. He was working with ``excuse legitime'' in French.

Senator Beaudoin: Did he give the same meaning as lawful excuse?

Mr. Mosley: That was the equivalent in English. He was relying on previous authorities, most of which were decisions from England or from the courts in other provinces that were delivered in English. He was reading both the English and the French, but he is applying standards that are entirely consistent with what you are suggesting to be the broader meaning of the term ``legitime.'' I would argue that this is how the courts have also interpreted ``without lawful excuse.''

Senator Beaudoin: Therefore, it is not a problem in practice.

Mr. Mosley: I do not believe so, senator. We are not aware of any problem.

Senator Beaudoin: My first reaction is not too good, but if nothing happened.

Senator Joyal: We can prolong that, although I know it is late. For Senator Beaudoin, and myself, being French- speaking and reacting so instinctively here, it would certainly be helpful, with your support, to go through the cases that have interpreted both and see for ourselves.

Mr. Mosley: We will do a search on any use of those terms, any interpretation.

Senator Joyal: Since you have the support to do that, I think that would be useful.

Senator Beaudoin: To put it more clearly, my first reaction is to be surprised. As Talleyrand said, ``Méfiez-vous de votre premier mouvement...c'est le bon.''

You should take your first reaction seriously, because it is the good one, if I may translate what Talleyrand has said. In my opinion, he was a genius in a way.

However, if, in criminal law over 50 years, there has been no problem for the interpretation of those expressions, I am not too concerned. However, I still have a strange reaction to the word choice.

Senator Joyal: I had the same reaction as you, senator, on the other side.

The Chairman: Senator Beaudoin, I think we will have to agree to disagree with Mr. Mosley on that.

Senator Joyal, was there a new issue?

Senator Joyal: No, I made my comments when Senator Bryden raised the point.

The Chairman: Any other issues?

Senator Adams: We keep coming back to 1953, when the bill was drafted. At that time, did we have any animal rights movement in Canada?

Mr. Mosley: As Senator Joyal suggested, there were certainly organizations in place. I am not sure whether provincial statutes dealing with animal cruelty were in place at that time. I do not have that information now.

Senator Adams: Animal rights people have been lobbying the government for I do not know how many years for a bill on that. That is why I am asking. It is difficult for me, as a citizen, making law for my life and everything. It is very difficult for me to have all these animal rights imposed by the government. Meanwhile, you are hurting the people up North who live in the communities. In the time since the bill has been split, they have put a commercial on radio. They say the Senate should not try to amend Bill C-10B and should send it back to the Senate without amendment. That commercial has been on the radio here in Ottawa for the last couple of months. Who is funding it? Is it your department?

Mr. Mosley: Certainly not, no.

Senator Adams: I am hearing it on the radio here in Ottawa. We do our best, and now the public is saying, do not bother amending Bill C-10B on the radio commercials.

Senator Sparrow: Do not tell me it is on the CBC.

Senator Adams: No, it is not CBC. It is a local station here in Ottawa. That is one of my concerns.

Meanwhile, I think we have to amend this bill. What happened with Bill C-10A? Is it still in the House of Commons? Right now, it is on the floor in the house. They have not sent it back to be approved in the House of Commons. We have a long list of bills from the House of Commons before Bill C-10A. That bill would not come back together between now and before we adjourn for the summer. In the meantime, perhaps for the next sitting, I hope to put some recommendations or amendments, especially on our concerns about our hunting rights. There should be something in there, even a mention of something in here with section 35. Every time we go to court, we do not want to have to just rely on section 35. We should just have the amendment here before it goes back to the House of Commons. I think that is what we will do in the next sitting.

The Chairman: Senator Adams, if I could interject, Senator Jaffer, who is the sponsor of the bill, had to leave, but wanted a specific question asked.

Mr. Mosley, is there a huge objection to a non-derogation clause for Aboriginals? If so, why?

Mr. Mosley: There are very serious concerns about the inclusion of a non-derogation clause in this context. I understand that this has been the subject of discussion in other fora and is an issue that has been engaged with a number of Senators in recent weeks. I have neither been part of nor are privy to those discussions; however, we were advised that there was a proposal to put forward a form of a clause. The way I understood that clause, it was drafted more as a defence than, strictly speaking, a non-derogation clause. That, of course, remains to be seen, in its exact form.

We do have real concerns about putting something of that nature in this part of the code. There is nothing comparable to that elsewhere in the Criminal Code. We are concerned about how that would affect the interpretation of these provisions — whether it would suggest that there is some form of blanket exemption for Aboriginal persons from the animal cruelty provisions of the code. That may not be the intent of it, but it may well leave the impression that this part of the statute does not apply to persons who are members of the Aboriginal communities.

There are certainly constitutional rights and treaty rights respecting Aboriginal practices such as hunting and fishing. Nothing in the statute as proposed would alter those rights, or detract from them in any way. However, the exercise of those rights would be affected by this legislation as they are under the existing law. Those rights apply to the provisions of the Criminal Code as they stand today. It would be detrimental, in our view, to insert something into the code at this point that would suggest that there was some greater protection with regard to the notion of cruelty to animals than there is at present.

The Chairman: Senator Adams can correct me if I am wrong, but I do not believe that he was talking about government's ability to regulate the exercise of the rights. What he is concerned about is any derogation from those rights, any taking away or lessening of rights, not the regulating of the exercise of the rights. That would be an exemption. I do not think that is what he was talking about at all.

Mr. Mosley: I think I understood that. I appreciate the clarification of the point. If there were a taking away of the rights, then the government would have to be prepared to justify that. Nothing that we have heard over the several appearances before this committee has suggested that there is anything in the bill that takes away from those rights. With the greatest respect, I would suggest that it is incumbent upon those who are arguing for a non-derogation clause to at least make a case that there is some possibility of derogation from the rights by way of the enactment of the proposed legislation, and thus far we have not heard it.

To put such a clause in this bill, at this point in time, I suggest, would lead to confusion and a potential misapprehension of its scope and effect.

Senator Beaudoin: Everything you said is true and the Aboriginal people are protected. However, they have the onus of evidence; this is what worries me. The Aboriginals have their rights; that is in the Constitution at section 35. They have been there for centuries. However, they have the onus of evidence in the sense that they may say, ``That does not apply to us because we are Aboriginal,'' but they will have to say that in court and that costs money and they have the onus of evidence.

I understand them. A few years ago, we did not give the Aboriginals what they were asking for. I thought that we were right, but today I realize that the onus of evidence is on them. They have to see a lawyer. They must prove that they are acting according to their collective rights. There are many problems. That is why I wonder now if we cannot correct the situation for the future and say, ``No, in the case of the Aboriginal people, they will not have to do that because the law will not apply to them.''

Mr. Mosley: With the greatest of respect, we are not saying that they have the right to hunt or fish pursuant to provincial or federal regulation for that matter; we are talking about acts of cruelty to animals. This statute, as with all of the Criminal Code, is a statute of general application. It is inappropriate to suggest that we can carve out a special place for Aboriginals, whereby they can cause or commit acts of cruelty to animals and other Canadians cannot. This is not an issue about a right to hunt or fish; it is entirely about how do you execute or carry out that right.

Senator Beaudoin: Is that true in all cases?

Mr. Mosley: We are talking about cruelty here. We are not talking about going to a part of James Bay or the northern Quebec region, where clearly the rights have been established, and hunting for an animal or a bird in that region. Clearly, the rights have been established to hunt or fish.

Senator Adams: Mr. Chairman, it is not only for Aboriginals. We have hunters and trappers, guides for people who are hunting for polar bears, musk ox, geese, caribou, fishing for char. Americans like to catch char. People say there is cruelty to animals. If this bill passes, it will not only affect us, it will affect people who have businesses up there in the community.

Mr. Mosley: Even more strongly, if I may, you cannot extend a right of this nature to persons who are invited into the territory to hunt or fish. This is a major point. I think you must come to terms with what you are talking about. If you are talking about a non-derogation clause in the sense that I understood you to describe it, Senator Beaudoin, as carving out an exemption, that the law does not apply, clearly that cannot be the parliamentary intent. You cannot pass legislation that says that Aboriginal persons are entitled to be cruel. Surely, that is not what you hope to achieve.

Senator Baker: The witness is misunderstanding what Senator Beaudoin was suggesting. Let me put it clearly. Let us go back to the example that was used by Senator Adams and that I used of hunting methods up North. These are traditional, practical hunting methods. That is what Senators Adams and Beaudoin are talking about, recognizing that a seal sinks to the bottom of the ocean for nine months of the year, so, therefore, if you shoot him in the head, you will not get him.

We are talking about practical methods. Yes, it is more cruel to do it the way the people do it up North — the animal will suffer pain. The animal will not suffer any pain if you shoot him in the head and crush the skull, not a bit of pain, but it will sink to the bottom of the ocean. Some people will not be able to eat. That is what we are talking about. We are talking about something that would encapsulate that, rather than — you call it an exemption — I suppose, in a way, depending on the word ``exemption,'' I have not looked it up lately. In a way, that would be an exemption, but it is not meant in the strict sense of the use of the world ``exemption'' of being exempt from the general principle of the bill.

Mr. Mosley: I will repeat the comments I made previously, that if it is an entirely reasonable and effective practice to harpoon a seal to prevent it from sinking to the bottom of the sea when you are hunting it, that clearly falls within the terms of 182.2(1)(a) now, unnecessary pain. It is necessary in the circumstances of hunting the seal nine months of the year in northern Canada.

With respect, that applies to the hunter whether the hunter is an Aboriginal with Aboriginal rights or is a non- Aboriginal who is hunting seals with lawful excuse. The issue is not about non-derogation or Aboriginal rights. The issue is about what makes sense. Enforcement agencies have to apply some common sense to hunting practices. If it makes sense to harpoon rather than to shoot, that is covered by the bill as drafted.

Senator Baker: We do not know the wording of what we are discussing because that has not been decided. However, something could be put in the bill to satisfy that condition. I do not know of any other people, I do not know of any Newfoundlanders, who are up there shooting seals through the ice or harpooning seals.

Do you know of anyone, Senator Adams, from Toronto or Ottawa who is doing that?

Senator Adams: I know of a few Newfoundlanders up in Nunavut who live up there and they have hunting rights like we do.

Senator Baker: Without specifying, this takes us right back to the problem of needing to defend one's self in a court of law for something under the code. It is our job to sit down and perhaps try to head off those problems. Without knowing the exact wording that we are talking about, perhaps there is some way to word the clause so that it does not do what you are afraid of, but so that it does do what Senator Adams is requesting be done.

Mr. Mosley: We do not have any wording in front of us, senator. We would be pleased to see whatever the committee has and to comment on that. With the greatest of respect, the onus remains on the Crown throughout to prove beyond a reasonable doubt that the offence has been committed. If you are talking about hunting practices that have been employed for millennia, I cannot imagine a Crown undertaking a case against somebody who has done exactly what he has been doing for years and what his forebears have been doing for years. It just would not happen.

Senator Baker: Mr. Mosley, there is reasonable and then there is reasonable, when it comes to charging, when it comes to prosecuting and when it comes to judging. Sometimes people get charged before a court for things that they have done for years and years. In the process, they are found innocent.

The Chairman: I would add to that, Mr. Mosley. I understand your apprehensions; do not get me wrong. However, tradition has a way of going by the wayside. The Ménard case is a classic example of that. The method of euthanizing the dog with coolant became less cruel than the old way. All of a sudden, the old way was no good any more. That is the problem Senator Adams is pointing to.

Senator Adams: As soon as the ice is gone, we use a shotgun but we have to make sure we do not kill the seal right away and we have to harpoon them so they do not sink. We have all kinds of ways of killing animals to be sure we do not lose a seal or any kind of mammal.

The Chairman: Thank you, Senator Adams.

Thank you to our witnesses. Your interactions have been very helpful.

The committee adjourned.

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