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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 10 - Evidence for May 14, 2003

OTTAWA, Wednesday, May 14, 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 3:38 p.m. to give clause-by-clause consideration to the bill.

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


The Chairman: Honourable senators, the committee will move to clause-by-clause consideration of Bill C-10B, to amend the Criminal Code, cruelty to animals.

Senator Cools: Chairman, I had expected, that we would hear from the minister before doing the clause-by-clause. It used to be that we would hear from ministers at least twice during the study of bills. On this particular question the minister's visit was fleeting, even truncated, because it was overtaken by the fact that there was an instruction before us to divide Bill C-10.

It was always my expectation that we would have an opportunity to have a full-fledged exchange with the minister. Like many, I receive the notices of meetings. I thought that it would have been excellent and reasonable to have an opportunity to dialogue with the minister. There are many who think that dialoguing with the officials of the department is the same as dialoguing with the minister but I do not.

What consideration has the minister given to this committee? I do not think that the committee should proceed without having an opportunity to put serious questions to the minister particularly since this bill has been difficult and procedurally complex.

The Chairman: Do other senators care to comment on the point raised by Senator Cools?

Senator Bryden: I do not entirely agree with Senator Cools' comment that it is usual for us to hear from the minister once or twice. When I first came to the Senate, it was not normal for the minister to appear on most pieces of legislation. We work quite hard to have the minister of the department sponsoring the bill to come in and set out the public policy and the intention being addressed in the bill. We then work with the officials, who are mandated by the minister to implement that public policy and intentions.

This bill was split for procedural purposes so that the issue of gun control could be finished by the end of the year, which would leave adequate time to deal with the cruelty to animals' section.

The fact is that a senior official, Mr. Mosley, from the Department of Justice, spent a great deal of time with the committee and did his best to answer our questions.

I do not have any unanswered questions that only the minister could answer. That is my observation.

Senator St. Germain: Honourable senators, ministers generally take ownership of any piece of legislation. Ownership tradition in this place has been that the minister appears at the beginning of the hearings and at the end so that questions can be placed before him. Whether that is necessary, I cannot say.

Traditionally in this place and in the other place, the minister appeared at the beginning and at the end of the hearings. It would have been nice to have an opportunity to see him, but life goes on. It is as important that we do what is right with this proposed legislation as opposed to who was here. With all due respect, Senator Bryden, tradition dictates what Senator Cools has said.

Senator Milne: In the five years that I chaired the committee, and before that in my experience with the committee when Senator Carstairs was the chair, the minister appeared only once each time.

Senator Cools: All of these past statements, including Senator Milne's, show you how systems can fall into poor practice.

Senator Milne has raised that point and so I will d not mind adding that, during that time, the then Minister of Justice did not like to come to committees. On many occasions when we insisted, our colleagues adopted a position of ``No minister; no bill.'' Some sound messages were sent out to that minister. Most of us sitting around this table will remember the minister of whom I am speaking and the many occasions. If the minister wanted the bill, then the minister should appear.

For the sake of the record, it is tradition that staff speak to staff and parliamentarians speak to parliamentarians. When we discuss amendments to a bill, we should have the appropriate dialogue with the minister. It is unsatisfactory to have scurrying behind the scenes and people who remain nameless and unknown arriving at decisions that affect us all.

Mr. Chairman, I recognize that you are new to this process but this committee and the Senate should establish that committees wish to hear from ministers and have a meaningful exchange with ministers; we should hold to that as a standard process.

Senator Beaudoin: I was the Chair of the committee before Senator Carstairs held that position and during that time it was customary for us to hear from the minister just once. Occasionally, it was natural to ask him to return if the issue was difficult or complex. That did not happen often. This tradition has been followed for years and years.

The Chairman: Rather than waste any more time, I will seek the committee's view on this subject. Is it the view of the committee that we adjourn today and ask the minister to come back at another time? All those in favour.

Senator Cools: Is there a motion before us?

The Chairman: Do you want to put a motion, Senator Cools?

Senator Cools: You seem to want to put a motion.

The Chairman: You can go ahead and make it. I am polling the members. I did not have a motion. I was polling the members to see how many people are in favour of adjourning now and calling for the minister to return and how many people are in favour of proceeding.

Senator Cools: You put a proposal. Let people debate that.

The Chairman: How many people are in favour of proceeding?

Senator Adams: I have a question. When the minister came here last time nobody questioned him. At that time, we passed the bill in the Senate. Previously, it was a bill split in the Senate. The minister came here to speak about the bill. We had to adjourn because we did not have the bill at that time. There was not one senator with a question.

Senator Cools: Mr. Chairman, if you remember, his visit was cut short because the order of business of the committee was to divide the bill.

We have not had an exchange with the minister. I do not see how we can move forward without hearing from the minister. Perhaps it is fine with some people, but I see life quite differently.

Senator Nolin: I understand your position Senator Cools, but I am not convinced that we will learn more from the minister than what we already know. However, I understand your point.

Senator Cools: Are you saying that the minister cannot tell us anything?

Senator Nolin: We have learned much on the subject of cruelty to animals, and perhaps, we are experts now. I am not sure.

It is a question of policy to hear from the minister. We know what the government is saying.

Senator Cools: The minister should appear before a Senate committee and do justice to his initiative; that is the proper way to proceed. We are dealing with the phenomenon of the proper relationship between the minister and the Senate and Parliament.

Senator Nolin: To be fair to the minister, the bill was not started under him. In the future, we will have ample opportunity to make a point with the Minister of Justice. We will probably receive a bill on a review from the military justice system, which former Justice Lamer is reviewing.

We will have ample opportunity to convey our thoughts to the minister. We have had the bill before us for five months.

Senator Cools: The idea to divide the bill was a strange one. Senator Bryden said that it was to facilitate passage of the first part, which was Bill C-10A. Bill C-10A passed only last week. Obviously, the division of the bill was not to facilitate the passage of anything.

The Chairman: This is a fairly simple issue, senators. I will be guided by the wish of the committee.

Senator Jaffer: I move that we move to clause-by-clause consideration of the bill.

The Chairman: We have a motion on the floor. Are you ready for the vote, senators? All those in favour to move to clause-by-clause. Those opposed. We will go to clause-by-clause consideration of the bill.

Shall the title stand postponed?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall the preamble stand postponed?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 1, the short title, stand postponed?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 2 carry?

Senator Beaudoin: I move that clause 2 of Bill C-10B be amended. I move that we replace lines 9 and 10 with the following: ``vertebrate, other than a human being.''

The reason is very simple. We have discussed the reasons and we have heard from scientists. We have come to the conclusion that it is the right thing to do. The last part is dropped because it is not a definition. If you say, ``An animal is an animal,'' you are not giving a definition.

The last part of the original draft is dropped. It then it becomes ``vertebrate, other than a human being.''

However, if science in a few years from now comes to the conclusion that it is another thing in practice, we may always amend the statute. At this stage, we should stick to a definition like ``vertebrate, other than a human being.''

The Chairman: It was moved by Senator Beaudoin that Bill C-10B be amended as he has just indicated. Is it your pleasure, honourable senators to adopt the motion in amendment?

Hon. Senators: Agreed.

The Chairman: Carried.

Senator Joyal: I would like to move to an amendment on clause 2 on page 3 of the bill. It would be best to circulate it so everyone has a copy.

Senator Cools: Mr. Chairman, in terms of proceeding, the entire bill is really clause 2. Perhaps you could proceed, Mr. Chairman, by calling each particular proposed subsection.

The Chairman: Is this a further amendment to 182.1?

Senator Joyal: No, it is an amendment to section 182.2.

Senator Cools: The entire bill is clause 2.

The Chairman: Could we hold on your amendment, Senator Joyal?

Senator Joyal: Certainly.

The Chairman: We will move to section 182.2. Shall section 182.2 carry?

Senator Baker: I have a minor amendment, Mr. Chairman. This has been discussed thoroughly by the committee. On page 2, replace line 5, with the additional words ``the unnecessary death of an animal.'' Section 182.2 would read as follows:

(a) causes or, being the owner, permits to be caused unnecessary pain, suffering or injury to, or the unnecessary death of, an animal.

This makes line 10: ``kills an animal without lawful excuse,'' unnecessary.

Delete line 10, make the change to line 5 and change the lettering of the paragraphs accordingly under that. Re-letter paragraphs 182.1 (d) to 182.1 (h) as paragraphs 182.1 (c) to 182.1 (g) and any cross-references thereto accordingly. Everyone can follow that easily. The committee has discussed this thoroughly. The Department of Justice expressed to us that it was not the intention of Parliament to change the original definition of the code or add a new offence. So moved.

Senator Cools: It is not as clear as you think.

Senator Baker: Let us go to line 5. This is what I think that we discussed thoroughly.

Presently, line 5 says, ``to an animal.'' Instead of ``to an animal,'' the suggestion is that we insert between the words ``to'' and ``an animal'' the words ``or the unnecessary death of.'' It is just an addition of the words ``or the unnecessary death of.''

The amendment would replace line 5 with the words ``to, or the unnecessary death of, an animal.'' There are also the other changes that I suggested to the names and the exclusion of line 10.

I so move.

Senator Jaffer: I oppose that amendment because I see this section dealing with the Ménard test. I understand the application of the Ménard test to be that you have legal justification to kill an animal, but you must not cause it unnecessary pain. If we include death, I suggest that we would be destroying the principles laid out in the Ménard case.

The Chairman: The way I read the amendment is that proposed paragraph 182.2(1)(a) will read;

causes or, being the owner, permits to be caused unnecessary pain, suffering or injury to, or the unnecessary death of, an animal.

Senator Jaffer: The Ménard test specifically talks about unnecessary pain. When you have legal justification to kill an animal, you are still not supposed to cause an animal unnecessary pain. By including death, I suggest that we will be taking the case law away.

Senator Nolin: That is the way that I read Ménard. Ménard will still be the case law; the jurisprudence will remain. I think we are only adding more clarity to the jurisprudence. I understand your point.

Senator Beaudoin: I think the Ménard case is still there. It is not infringed upon by this suggested amendment.

Senator Cools: From what I can see, Senator Baker's amendment is prudent and wise because it extends the lists of afflictions or hurts inflicted upon the animals. It is unnecessary pain, suffering, injury and death. It seems to me that Senator Bakers' amendment is quite relevant because it adds ``death'' to that list, which has been glaringly absent.

Senator Nolin: Just to help Senator Jaffer, I will read a paragraph from the Ménard decision that may assure her. The decision was written in French, but I will translate it for you: ``It is forbidden to cause (pain, suffering or injury) without it being necessary.''

Certainly, the legislator did not intend, as in the case of assault among human beings, to forbid through criminalization the least physical discomfort to an animal, and it is to this extent but no more that one may speak of quantification. With the exception of these cases, however, the amount of pain is of no importance in itself from the moment it is inflicted wilfully, within the meaning of section 386(1) of the Criminal Code if it was done without necessity according to section 402.1(a) and without justification, legal excuse or colour of right within the meaning of 386 (2).

I do not think we would be going against that jurisprudence.

Senator Jaffer: The way I read the bill, subsection (a) talks about pain and subsections (b) and (c) deal with killing. That is why I say that we are confusing ideas by mixing the notions of unnecessary pain and death. We will just confuse the judiciary. Proposed subsection 182.2(1)(a) deals with unnecessary pain. The other subsections deal with killing. That is why I suggest that to keep the Ménard test we must leave 182.2(1)(a) as it is. That is the pain section.

Senator Nolin: The amount of pain leading to death should not be unnecessary, if I understand the amendment correctly.

Senator Jaffer: Does ``without lawful excuse'' cover it?

Senator Nolin: That is why Ménard is giving us another layer, even with the words ``without lawful excuse.''

Senator Nolin: We need the word ``unnecessary.''

Senator Jaffer: Senator Nolin, if you look at subsection (b), you will see that it refers to killing. Subsection (a) deals with pain. I suggest that we need to keep things clean. Subsection (b) covers killing and unnecessary death.

Senator Nolin: Senator Baker may wish to defend his amendment.

Senator Baker: You were doing such a marvellous job that I did not want to interfere.

The Chairman: Honourable senators, it is moved by Senator Baker that proposed section 182.2 of Bill C-10B be amended as indicated. Is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: Agreed.

Senator Jaffer: On division.

The Chairman: Motion agreed to, on division.

Are there other amendments to proposed section 182.2?

Senator Joyal: At the top of page 3 of the bill are sections 2(a) and (b). This amendment would come in immediately after 2(b). It reads as follows:

(3) No person shall be convicted of an offence under paragraph (1)(a) if the pain, suffering or injury is caused in the course of the following activities and is no more than is reasonably necessary for carrying out those activities:

(a) lawful hunting, trapping or fishing;

(b) scientific research conducted in accordance with generally accepted standards;

(c) reasonable and generally accepted practices of animal management, husbandry or slaughter; or

(d) traditional hunting, trapping or fishing practices carried out by a person who is a member of one of the Aboriginal peoples of Canada in any area in which Aboriginal peoples have harvesting rights under or by virtue of existing Aboriginal treaty or treaty rights within the meaning of section 35 of the Constitution Act, 1982.

And in French, the new subsection 3, which comes right under 2(b), on top of page 3. The new subsection 3 reads as follows in French:

«(3) Nul ne peut être déclaré coupable de l'infraction visée à l'alinéa (1)a) si la douleur, la souffrance ou la blessure est causée pendant l'exercice de l'une ou l'autre des activités ou pratiques suivantes et se limite à ce qui est raisonnablement nécessaire à celles-ci:

a) les activités licites de chasse, de piégeage ou de pêche;

b) les activités de recherche scientifique exercées en conformité avec les normes généralement reconnues;

c) les pratiques de gestion, d'élevage ou d'abattage des animaux qui sont raisonnables et généralement reconnues;

d) les pratiques ancestrales de chasse, de piégeage ou de pêche auxquelles se livre un membre d'un des peuples autochtones du Canada dans une zone où les peuples autochtones possèdent des droits de récolte découlant des droits existants — ancestraux ou issus de traités — au sens de l'article 35 de la Loi constitutionnelle de 1982.».

Senator Baker: I wonder if the senator proposing this amendment could comment on whether or not (a), (b) and (c) of his amendment would be necessary following the approval of the last amendment?

Senator Joyal: When the amendment was drafted it was in the context that the bill was not amended previously. I had to take that into account when I drafted that amendment after consultation with the Aboriginal senators that we have around this table.

Now that we have amended 182.1(a), we have added another perspective to the first offence that we are dealing with and it would be redundant to add this now considering that we have already accepted the amendment put forward by Senator Baker.

The Chairman: You have no objection to dropping (a), (b) and (c)?

Senator Joyal: No, I have no objection to deleting (1)(a), (b) and (c).

The Chairman: Just for clarification, senators, the proposed amendment now from Senator Joyal reads:

No person shall be convicted of an offence under paragraph (1)(a) if the pain, suffering or injury is caused in the course of the following activities and is no more than is reasonably necessary for carrying out these activities:

(a) traditional hunting, trapping or fishing practices carried out by a person who is a member of one of the Aboriginal peoples of Canada in any area in which Aboriginal peoples have harvesting rights under or by virtue of existing Aboriginal or treaty rights within the meaning of section 35 of the Constitution Act, 1982.

Senator Joyal: Since we have just amended (1)(a) to have added ``death,'' of course we have to add that, too, on the second line: ``No person shall be convicted of an offence under 1(c) if the pain, suffering or injury,'' ``or death,'' because we have added ``death'' previously.

Senator Beaudoin: After ``activities'' I think I heard a name, and before (d); is that not correct? How does it read, ``for carrying out those activities''?

Senator Baker: Senator Beaudoin is correct Mr. Chairman. Senator Beaudoin is pointing out that the way that reads:

(3) No person shall be convicted of an offence under paragraph (1)(a) if the pain, suffering or injury is caused in the course of... traditional hunting or trapping.

Senator Beaudoin is correct. It is not necessary, in fact it is redundant, and really would be counterproductive to what we have done to include ``reasonably necessary.''

Senator Beaudoin is correct. Go to ``in the course of'' in the second line, and then go directly to ``traditional hunting,'' because it does not read properly and neither does it make any sense if you leave in those words.

Senator Jaffer: We do not need (a) now, because there is just a listing.

Senator Baker: ``In the course of'' and then ``traditional hunting.''

Senator Beaudoin: We drop (a), (b) and (c) and we say after ``course of,'' ``traditional hunting.''

Senator Baker: I submit that Senator Beaudoin is correct, Mr. Chair.

Senator Nolin: I just want to make sure that ``death'' is added. There are two ``or''s. Maybe we should drop one.

The Chairman: ``suffering, injury or death.''

Senator Beaudoin: Do we all agree on this?

Senator Bryden: Will someone read it?

Senator St. Germain: Please.

The Chairman: One more time, senators. The amendment proposed by Senator Joyal reads as follows:

No person shall be convicted of an offence under paragraph (1)(a) if the pain, suffering, injury or death is caused in the course of traditional hunting, trapping or fishing practices carried out by a person who is a member of one of the Aboriginal peoples of Canada in any area in which Aboriginal peoples have harvesting rights under or by virtue of existing Aboriginal or treaty rights within the meaning of section 35 of the Constitution Act, 1982.

Senator Andreychuk: We have been discussing the subject matter, but not the particular wording. I am not sure now what this means. I would certainly like to take time to consider the new wording.

I am concerned with the words ``hunting'' and ``trapping.'' Are we going to use these two words throughout the bill? I am speaking in reference to harvesting rights.

Senator Joyal: That is part of the traditional description of those rights.

Senator Andreychuk: How will this be implemented? If someone is deemed to be causing unnecessary suffering or unnecessary pain that caused the death of an animal what happens to the person at that point? Is it the peace officer that will have to determine whether that person is Aboriginal? Innu is easier to determine and so is Indian status, but Metis is not. As I understand, the Metis define themselves to be Metis, not the government or a policeman.

Then the problem is to try and follow this through; Aboriginal peoples do not have set rights. They are set in the sense that the Constitution guarantees them, but as we know, the courts are evolving while we speak; they are also contradictory. On the same piece of land there might be more than one harvesting right. The lands themselves are under dispute and there are many unanswered questions.

Will this lead to no enforcement, or will there be some process and methodology? I can put myself into the situation of advising the police. They are out there; they receive the complaint or they see the facts. How do they apply this clause in their determination as to whether to charge or not to charge, and where does the prosecution go from there? I have not thought about that. Perhaps Senator Joyal has thought about it and he can help me.

The Chairman: I would like to add one point before we go to that argument, Senator Joyal. Originally, you suggested, ``and is no more than is reasonably necessary,'' and I think we should keep that there.

Then we would put in:

No person shall be convicted of an offence under paragraph 1(a) if the pain, suffering, injury or death is no more than is reasonably necessary...

Senator Cools: You have to keep ``is caused in the course of.''

The Chairman: Yes, ``caused in the course of,'' and then add, ``and is no more than is reasonably necessary...'' That has to be said.

Senator Joyal: I see that Senator Baker wants to intervene.

Senator Baker: Mr. Chairman, this clause has two restrictions on its application. One is within the meaning of section 35 of the Constitution Act. That is very important. Second, the Aboriginal peoples are defined,

in an area in which Aboriginal peoples have harvesting rights under or by virtue of existing Aboriginal treaty rights.

Mr. Chairman, this now complies with the marine mammals regulations, which, under the Fisheries Act, have an exclusion clause at the beginning of the regulations that state that these regulations will not apply to persons who live in areas, and I think the wording is, ``designated areas.'' I believe that is the wording that is used in the James Bay Agreement and others.

Mr. Chairman, regarding the most recent Supreme Court decision on the sale of bluebacks, you can do that if you are in those treaty areas, but you cannot if you are living in Newfoundland or some place else where these people were charged.

This clause puts in two restrictions: first, within the meaning of section 35 of the Constitution Act, and, second, in an area in which Aboriginal peoples have rights under existing treaty rights. That makes it quite clear to the enforcement officer.

Under existing regulations under the Fisheries Act governing seals and all mammals, if you are in one of those treaty areas, then those regulations do not apply. That is in the regulations right now. The senator is including that as a condition of application, and within the meaning of section 35 of the Constitution Act. I believe that covers it.

Senator Andreychuk: If you permit me, I think the fishing rights in Newfoundland, James Bay and Nunavut have been defined and resolved. However, there are some yet to be negotiated. We have had discussions on previous acts about what the words ``existing Aboriginal treaty rights'' mean. I remember Senator Buchanan saying, ``those defined treaties.'' In British Columbia, they are not defined in treaties. Yet, there are Aboriginal and treaty rights that do exist. The marine mammal act already has the regulations. It is set and fixed, but that does not apply all across Canada.

If you permit me, I have no problem on the fishing practices because that is where the case law has led. However, when you get to harvesting rights, trapping and hunting and all of the undefined and yet to be defined existing rights, you cannot define it to a regional area.

The Nisga'a allegations were that the land covered Nisga'a, but it also covered Gwich'in and Gitanyow. The government chose to support the Nisga'a. It does not extinguish the others if they are there. They may be able to prove it in the future. What I am trying to figure out is how we will we address what is yet to be determined in section 35, because it is an evolving issue.

What troubles me is the role that the policeman will play in this situation. I need some time to think about this. I am very practical because I think there would be needless difficulties between the Aboriginal community and enforcement if we do not clearly understand what we are doing. We need to give a clear signal not only to the Aboriginal people but also to the enforcement agencies. I would appreciate some enlightenment concerning the issue of enforcement.

Senator Jaffer: I have the same angst as Senator Andreychuk, especially in B.C. where the treaty rights are still being negotiated, and it is not as clear as it is in other areas. That is my one concern.

Senator Joyal, does this amendment create an absolute exemption for the people who have the treaty rights?

Senator Joyal: Not at all. No, they are still submitted to the overall objective of the bill. A complaint can be laid, the person can be charged and then there will be prosecution. At each step of the process the person who is involved will have to establish the various elements of components of defence. The offence remains. We are not exempting the person from the offence. We are not saying Aboriginal people of Canada cannot be charged. That is not what we are saying. We are saying ``no person shall be convicted.'' It is at that level of conviction when the final examination is made.

Senator Jaffer: I am concerned that this will create a situation of reverse onus: the person then has to prove that he has the rights.

Maybe I misunderstood this, but throughout our five months of discussions we have said that we did not want to put the Aboriginal person in a position of being brought to court.

With the greatest of respect, senator, I feel that we are doing exactly what we have tried not to do. We are bringing a reverse onus. We are saying that the Aboriginal people will have to show that they have harvesting rights and that they are within the treaty rights. In B.C., that would be very difficult to do.

Senator Beaudoin: If I may, the word ``existing'' has been clearly defined in the Sparrow case. The Sparrow case is for the Aboriginals what the Oakes case is for human rights and freedoms. The word ``existing'' means that it may be changed.

Senator Jaffer: The word ``existing'' is not defined in my province.

Senator Beaudoin: What do you mean?

Senator Jaffer: I am not talking about the Sparrow case. I am saying it is a reverse onus. That is my biggest concern.

Throughout our discussions, we have said that we do not want to put the person in a position where he or she has to come to court and has to spend the money to prove that he or she has the rights. Now we are doing exactly what we have said we did not want to do.

Senator Nolin: That raises a question of the administration of justice. Senator Andreychuk raised a very good question. How will policemen deal with this kind of situation? That is a good, fundamental question.

It will work this way: there will be an informant. In French we use the word ``dénonciateur.'' Based on the informants information there will be an investigation. The policeman will make a report. We are not talking about a conviction. Someone will look at whether the law has been respected or not. Someone in authority will look at the law and during that time will see Senator Joyals' amendment and conduct his work accordingly.

The burden will not be on the person; charges have not yet been laid. They will have to go through the burden of proving that their rights indeed do exist. Do their rights exist? Is there any jurisprudence? What about the state of the law today? If the authorities conclude that there has been a breach of the law, they will lay charges.

Then there is the onus on someone who is going to be charged and he will invoke his right and he will have to demonstrate the existence of those rights. The court will decide if the rights exist.

The reverse onus will exist at one point, but someone will have to do his job first before charges are laid, and someone will have to defend himself.

Senator Beaudoin: It does not mean that the onus is always wrong.

Senator Nolin: We have to have this amendment read this way. If we do not we will have to change the code. This document is filled with infractions, descriptions of infractions, defences and excuses.

You have probably never heard about the ``hot blood'' defence. It exists in the code. All those differences and small details are found in the code. Of course, it is a lawyer's job to deal with that, but it is there.

After the person is charged the information is sent to an office where someone must look at the report and decide if charges will be laid.

Once in a while there will be an affidavit signed and the judge will issue a warrant after examining the affidavits. The process is not easily done; it is very cumbersome, and we are adding to the burden with this proposed amendment.

Senator Pearson: We all agree on the intent of the amendment. The question is: Is this the best way to do it?

I believe that we should word the amendment to say that, ``no Aboriginal person shall be convicted.'' That statement takes me to the practical question of how the person is to prove that he or she is indeed Aboriginal.

We must find the best possible wording for this amendment. Neither Senator Watt nor any of the others have asked to be exempted from the Criminal Code. What we are trying to do is find proper phraseology. The way the question is worded is going to depend on how we word this amendment.

I am curious to know what happens if you are the hunter and your wife is Aboriginal and you are not. I am curious about that possible situation. Further, if you are up in the North but you are hunting down in some other territory, how does that work?

Senator Nolin: This amendment does not apply to someone who is fishing, let us say, in Lac St. Louis in Montreal.

Senator Pearson: No, but if you are fishing in some place with some other Aboriginal peoples do you have a right on other Aboriginal peoples' lands?

Senator Nolin: We want to protect the people who already have rights. We do not them to be forced to use section 35 when a charge is laid under 182.2(1)(a).

We have agreed to carve an amendment to ensure that the burden will be on the authorities to apply the law. Any person that has the rights will not have to invoke those rights in court.

Of course charges may be laid on someone who is a non-Aboriginal and the husband of an Aboriginal. We will see. I do not have a specific answer to that question senator. It is quite clear what we have in front of us.

Senator Beaudoin: We should be fair to everyone, but in certain cases it may not be fair. We have jurisprudence to that effect.

The judge has the last word in the courtroom: the Constitution is what the judge says it is. Section 15 of the Charter of Rights, which deals with equality, will always be called into question in these cases.

The special protection of the Aboriginal people is all in section 35, and the Supreme Court has the last word, period.

I do not have any difficulty with the word ``existing'' as defined in the Sparrow case.

Senator St. Germain: The suggestion was made to add ``no Aboriginal person.'' Senator Joyal, did you give that any thought when you were drafting this amendment?

Senator Joyal: The code must address guilty people. A person may be an Aboriginal but the case might have particular circumstances.

You remember the discussion we had when we adopted the youth criminal justice bill. We wanted to protect the young criminal and offer them the same protection as the Aboriginal people.

Senator Nolin: That was the only amendment you were able to get through.

Senator Joyal: The code recognized that in terms of sentencing an Aboriginal person might find himself or herself under a particular set of protections.

In this amendment we read, ``no person who is a member of one of the Aboriginal peoples of Canada.'' That statement is within the meaning of the definition of ``Aboriginal people.'' First and foremost the definition addresses a person. When we define an Aboriginal person within the meaning of the Criminal Code, it has first to insist on the quality of the individual, and after that the person is an Aboriginal person.

It is only in that further step that the person is allowed to claim that he or she has a right under a treaty or existing rights to harvest, hunt or fish within the traditional practice. We are talking about ``traditional practice.'' It is quite clear. It is essentially traditional hunting, trapping or fishing practices. This is the very limit that we want to put on that capacity not to be convicted.

Senator St. Germain: That possibly answers Senator Andreychuk's question because I do not think you can legislate discretion as far as enforcement. With the word ``traditional'' included I believe that it is covered.

It has not been established whether the Metis have hunting rights. That is the group to which I belong. The issue of Metis hunting rights is before the Supreme Court at the moment.

I believe that with the word ``traditional'' included it is enough protection for our Aboriginal peoples.

In the meaning of things, and I seek legal advice from the lawyers at this table, I hope that the ``traditional'' aspect is applicable in terms of this clause.

Senator Stratton: I am concerned with this because of the discussion that has been going on around the table. We need to try and avoid identifying a group of people apart from others under the law. That is what concerns me. Is this necessary? Are the Aboriginal peoples covered under what is already in existence? I want and need the assurance that this proposed amendment is needed.

Senator St. Germain: Nunavut is a living example of it in Bill C-68. They were to have had protection under section 35, and, yet they are now in the form of an injunction.

What we are trying to accomplish here is that our Aboriginal peoples are not put through unnecessary litigation and charges. In the past, horrific lawsuits and prosecutions have been the result of poorly enunciated legislation. In certain cases, it is very costly and cumbersome. I believe it is unfair to our Aboriginal peoples. That is why we have two of our Aboriginal peoples here today. I think their concerns are genuine, Senator Stratton.

Senator Nolin: Section 35 is very large in its scope. This proposed amendment narrows our understanding of the rights in section 35.

The burden will fall on the shoulders of the law enforcement people. The enforcers will have to read the infraction and decide whether the information that they have received applies to person ``X.'' Will that be an easy job? No, it will not be an easy job; they will have to do their homework to prove the allegations in order to bring charges.

Senator Baker: Certain guarantees are given to Aboriginal peoples concerning marine mammals. Some of the guarantees have been negotiated through agreements. Under the marine mammals regulations, for example, we see that the sale, trade and barter of white coats was made illegal in 1985. What it says in the regulations is that it does not apply to a ``designated person.'' I think the word ``designated'' or some similar word is used. Then it says that a designated person is a person who lives in an area covered by the James Bay or the Nunavut agreement. Each time you have an agreement signed, there must be an amendment made to the regulations concerning marine mammals to include that new area.

This is better wording: ``existing Aboriginal or treaty rights.'' If that phrase were in the marine mammals regulations, it would not be necessary to keep going back and changing them.

The point is that exclusions must be made because of agreements that have been signed and negotiated by the Aboriginal people. It is not at all strange to see that in existing regulations.

Senator Stratton: I will accept that. How will you enforce this? If you look at the issue from a practical point of view, how will an enforcement officer address whether a person who has killed an animal is Aboriginal or not? Did the same thing not happen with guns?

Senator Joyal: I want to draw the attention of my colleagues to section 718.2 of the Criminal Code that deals with the Aboriginal people in terms of sentencing. It states:

A court that imposes a sentence shall also take into consideration the following principles:

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

This applies to an Aboriginal person who is in downtown Toronto, Montreal, Vancouver, Nunavut, in Yukon, or in any of the treaty areas. How will the court determine this fact? Will the judge go as far as to ask if the person is an Aboriginal within the meaning of the Constitution of Canada. Will the judge ask if the person is under treaty?

The reality of Aboriginal people is already recognized in the courts. It has been recognized in the courts and codified. This section is not the result of a government initiative, it is the result of a sentence in a court, the famous court case in Toronto, as you well remember, honourable senators.

In other words, the court has gone beyond the policy recognition of the government and said there is a situation that we will address on our own, proprio motu, as we say in Latin.

This proposal does not encompass fishing and hunting outside territories that are under rights or traditional practice. It must be proven that it is a traditional practice.

When an enforcement officer deals with a complaint, it has to be proven that it is a traditional practice. An enforcement officer who has the responsibility to maintain law and order in an Aboriginal territory would understand the meaning of traditional practice.

We are not trying to reinvent the system. ``Traditional practice'' by definition includes ``the same act done over a long period of time.'' We all know what a traditional practice means.

The officer will have to consider this first and decide whether the action of the person falls within his or her traditional practice. If he thinks it is not a traditional practice then he will proceed. As I have said, it is not the officer who writes down the complaint and has a person taken to court the next day. The procedure does not work in that way. If the person is charged and found guilty, and that person is an Aboriginal he or she falls under 718.2(e) of the Criminal Code. At that point the judge will have to take into account other sanctions other than prison for the offender.

We are not trying to reinvent a system here that the code has not recognized and that the court has started to recognize. Our liberal colleagues and Senator Andreychuk will remember the case in Toronto. The crime was not committed on Aboriginal territory, but in downtown Toronto. The judge found that it was outrageous to send the person to prison considering the overall circumstances.

This way of addressing the issues is the best way to maintain the fact that the code applies to everyone. We are not defining a category of person and saying they are exempted. We are not exempting Aboriginal people. That is quite clear. We have discussed this before and decided that the best way to approach the issue was to exempt them or give them a defence.

Senator Andreychuk: I need time to reflect on the definitions of the words, ``traditional,'' ``hunting,'' ``trapping'' and ``harvesting.''

Why do we have this legislation? It is because the government has determined a different policy regarding animals. You can say it is an extension, it is a greater awareness of the need not to cause pain or unnecessary injury. We cannot lose sight of that fact. That has to be balanced against what are we doing with the Aboriginal people. We do not unnecessarily want to intrude on their traditional practices, or their existing rights.

I am having some difficulty reconciling the two, but my greatest concern is that we are still putting the Aboriginal person in the position that they must raise their Aboriginal status.

If you live in Saskatchewan, you know that this is something that we did not want to legislate. We do not want to have Aboriginal people and non-Aboriginal people having to state their case. The model we are adopting in Saskatchewan is conciliation, compromise, dialogue, debate and co-management.

I wonder whether it is in the best interests of the Aboriginal people when I hear that we are narrowing section 35. I hope we are not narrowing section 35. We have no right to do that.

This proposed amendment would put the Aboriginal in the position of having to define the section. It is different when you look at section 17. The Aboriginal person is in no different position before the conviction. The judge must take into account the circumstances. Normally, there is a pre-sentence report. Normally, there should be counsel to assist in an appeal if the defendant is without counsel. The judge will ask for a pre-sentence report and will insist that the person is identified as Aboriginal or non-Aboriginal.

In the course of the investigation that information is disclosed. Judges that preside in Saskatchewan are give specific training to learn to deal with Aboriginal people. There is a heavy onus on the system to pay attention to section 17, but not in the conviction or acquittal in the sentencing.

I think it would not be in the interests of the Aboriginal people to have to raise the fact that they are Aboriginal and that they have traditional practices and that, therefore, they are exempt and that they did not use unnecessary pain because they will have to get involved in that, too.

I do not want the application of this section to come back to haunt the Aboriginal people in cost and in separation from the rest of Canada. I want facilitating paragraphs that work toward protecting Aboriginal people. I do not want them to be in a position where they have to fight back and explain their traditional practices.

I need some time to reflect. If this is the best for the Aboriginal people, and the best for the objective of the bill then so be it.

Senator St. Germain: I believe that this is the only way that we can proceed to ensure the protection of rights of our Aboriginal peoples. If we do not, and then we leave it solely to section 35 in the Constitution we will end up with real problems. Our Aboriginal peoples will end up with real problems and they will have to go through the court process.

Whereas, unless I am tremendously mistaken, I believe that this will offer that protection. That is why the subject has been brought forward in the manner that it has. Thought has gone into it. I am not saying, Senator Andreychuk, that you have not put thought into it; I am saying that you are pleading for time and that you have not put what you feel is enough thought into this.

As a Metis, I am very comfortable that this will be in the bill, much more comfortable than if it was eliminated.

Senator Andreychuk: It is not a question of trying to eliminate the emphasis on the Aboriginals to ensure that their rights are not infringed upon. What I am afraid of is ending up doing something that causes them more grief, expense and difficulty.

We did not talk about it in this sense; we looked at various options. This may be the best option, but I would like to reflect on it.

Senator Watt: Senator Andreychuk, from time to time we all mean well and at times we do not come across too well.

If we do not have what we are recommending to you now, the Aboriginal person will end up in the courts with no defence. That is what will happen.

This is not an absolute solution. I am like you, I would prefer not to see any Aboriginal person go to court. The fact is, I think this is the best possible solution that we can come up with at this time. Leaving it empty is very dangerous.

Senator Andreychuk referred to the traditional activities of the people. I have tools and I may have to use my tools as evidence to prove that I use them as part of my traditional practice.

Aboriginal people are not without tools. We use different tools for hunting and fishing than the tools used by the general public. The system must realize the circumstances. The circumstances are not well understood at this time.

Meaningful protection was not included in Bill C-68, and as a result we are economically damaged. There is little ammunition in many of our communities and people are not doing as well as they used to. Since Bill C-68 was passed there has been economic deterioration in our communities. This bill must not be passed without some kind of protection, although not necessarily absolute protection.

Senator Andreychuk: We have a fiduciary responsibility to ensure that we do not compound the problems of the Aboriginal peoples. If this is the best we can come up with, we had better be certain that it is a collective best. We were very careful not to put heavier onuses on the Aboriginal people. The consensus was to put a heavier emphasis on the system, the government and the administration of justice to recognize the rights of the Aboriginal people.

Senator Watt: I have one more issue. Would it remove your concerns if we replaced the word ``person'' with the words ``Aboriginal person?''

Senator Joyal: No, that is not the point.

Senator Watt: I thought that earlier you spoke of the Metis and other people who might become eligible, and that is why I raised that issue.

Senator Andreychuk: I used the Metis as an example, but their rights and definitions are not as well defined as the Innu in the James Bay agreement. They are still struggling. Other than Alberta, I am not sure where the Metis have had their land rights recognized, although they are raising them in Manitoba.

Will we again put the burden on them to define who they are and what their rights are by using this as a piece of legislation?

I do not think we talked about that kind of reverse onus and the consequences it may bring. It may be the way we should go, but I hope we understand what all these words mean and how they will be implemented, because that is important.

To go back to the gun registry, the philosophy of it seemed eminently sensible: Register and you will know where the guns are and everyone will be protected. However, the devil is in the detail between the police, the Aboriginals, et cetera. The devil is in the administration of justice and the people's acceptance.

Senator Cools: I would like to express support for Senator Joyal's proposed amendment. We all seem to be agreed that something is needed and our witnesses and Aboriginal colleagues agree.

I agree with Senator Nolin and Senator Joyal that this is a narrow set of instruction, but it is an instruction to the law enforcement community. It is very specific and points out the geographic areas that are concerned. It points out membership of the peoples, and then it points out existing rights under section 5.

This may not be the most perfect articulation of the phenomenon, but this piece of drafting speaks to the concerns that were brought forth at this committee.

It may very well be that there are other concerns and that they should come forward as well, but I tend to think that this proposal, as drafted, certainly satisfies the problems that were raised before the committee and I think we should move ahead with it.

Senator Andreychuk, do you have alternative wording stuck away in your purse, your pocket, or your bonnet, as they used to say?

Senator Andreychuk: I have neither a purse nor a bonnet.

Senator Cools: I can vote for this because I am of the opinion that this speaks to the issues that were raised here. In addition to that, we have, during the last many months of this committee's hearings, dialogued with our Aboriginal colleagues. As a matter of fact, it seems to me that most of the committee meetings have been very well attended by our own Aboriginal colleagues.

Senator Bryden: I have alternative wording tucked away, although not in my purse.

I am uncomfortable with what we have done to try to protect traditional hunting for ordinary folk. One of the reasons I said that is probably acceptable is that Senator Joyal said that lawful hunting and trapping is coming up in his amendment, but you have to be Aboriginal.

Senator Adams, will you adopt me?

We did discuss, to a great extent, the fact that what causes so much of the problem in the Aboriginal communities with regard to their traditional activities of hunting and fishing is not that the Constitution or the law will not ultimately protect them, but the fact that they have got to go through all these hoops in order to get to the point where they shall not be convicted ``for the following reasons,'' and they have to prove all of these things as the following reasons.

I assume that rather than go through that they plea bargain. I do not know whether this works. There are people from the Department of Justice here and others who have practised a lot more criminal law than have I, but it is my understanding that the first thing that must happen before a charge is laid is that a charge must be made out. The peace officer that investigates the incident must consider all the circumstances and be able to conclude that, on balance, an offence likely occurred. It will have to be proven, et cetera.

Is it possible to do an objective qualification of what comprises the offence?

I suggest that Bill C-10B be amended in clause 2, on page 3, by adding, after line 10, the following:

No offence occurs under section 1(a) if the pain, suffering or injury is caused in the course of traditional hunting, trapping or fishing practices carried out by a person who is...

I suggest that we follow it along from there.

The problem I have with Senator Joyal's wording is no one shall be convicted. People will be arrested, charged, prosecuted and when they get to the conviction level they bring in their defence.

I do not know whether that is legitimate. One of the things that the investigating officer must determine is, is there an offence here?

What we would say in this instance is:

no offence occurs under paragraph 1(a) if the pain, suffering or injury is caused in the course of traditional hunting, trapping and so on that is carried out by an Aboriginal person.

It seems that there is an initial shield, for want of a better word. Maybe this is not possible under our criminal system. It seems that there are places within the Criminal Code where those sorts of expressions are made.

Instead of exempting, or even appearing to exempt, a classification of people in particular, what we are really saying is that an offence does not occur under this blanket provision that we have got in these circumstances.

Senator Nolin: We all want the same thing; we just want to make it workable. Senator Stratton raised a very good question: Let us deal first with the arrest and with the warrant. We all agree there will be another person who will help the peace officer to write the affidavit to get the warrant. Someone who understands the full meaning of everything that we are doing will put the facts and the law together and decide if there is reason to ask for a warrant for arrest.

Do we agree to that?

Senator Bryden: We will not issue a warrant every time we lay a charge under the section.

Senator Nolin: Let us say that we have a denunciation and an investigation. Let us say that we are going to investigate before we make an arrest. It is not just the peace officer that will conduct the investigation; lawyers will become involved.

I am not concerned with enforcing the law. I am more concerned with what Senator Stratton suggested and that is the peace officer in the woods.

Senator Stratton: A green RCMP guy.

Senator Nolin: We are not asking for a sea-to-sea-to-sea application of the amendment. The amendment is quite specific.

I hope the peace officer will be informed of those rights and hopefully even know the name of the individual. Hopefully he will know the persons rights to fish, hunt and trap in the area. I hope I am living in a country where we do not let peace officers apply the law the way they want to and not in the way it is written.

I do not have a problem with the proposed amendment, however, I want some burden put on the enforcers to do their work at the beginning of the process and not just at the end of the process.

Senator St. Germain: Is this not just a mincing of words?

Senator Nolin: If lawyers in this country lay charges knowing that there will be no conviction because rights will emerge during the procedure, we have a big problem.

Senator Bryden: That happens all the time.

Senator Jaffer: Senator Bryden suggested that creates an exemption. Sorry, I keep harping on the exemption issue, but when you say ``no offence'' that creates a complete exemption group.

Senator Cools: That is the difference.

Senator Jaffer: I remember you talking about this at length, that if you say ``no offence,'' it certainly creates an exemption.

Senator Joyal: Senator Jaffer, with all due respect, I have proposed an avenue that, in my opinion, gives protection to the Aboriginal people.

We share the objective to make sure that the constitutional rights of the Aboriginal people are clear. They have rights that you and I do not have because we are not Aboriginal people. We are submitted to the weight and the onus of the legislation. Aboriginal people like our colleagues Senator Adams, Senator St. Germain and Senator Watt....

Senator Nolin: We have to wait for the Supreme Court to decide on Senator St. Germain.

Senator Joyal: Under our Constitution, they enjoy ``traditional practice for hunting and fishing.'' That right has been protected since 1763.

I think my proposal is sound. It is not creating an exemption, but it is providing the Aboriginal people with a defence.

I can live with Senator Brydens' proposal, but it is more specific; it excludes Aboriginal peoples from the application of an offence who have traditional hunting rights.

Senator Nolin: That is a real exemption.

Senator Joyal: That is a real exemption.

Senator Jaffer: Thank you, Senator Joyal. I do not want to repeat what I have already said about reverse onus.

Senator Joyal: It seems that we are damned if we do, and we are damned if we don't. We do not want to exempt all of the Aboriginal people. On the other hand, we do not want to bring them into court and not put on them the onus of defending themselves. Well, then we are back at the original proposal.

Let us bring them to court after the charge has been laid and then let the judge look into the issue of whether the alleged crime if applicable or not. The judge will be aware that the accused will invoke section 718.1(e) if the person is Aboriginal. The judge will have to take that into account while making his judgement.

We do not want to make exclusions. We do not want a reverse onus, because we do not think that that is the proper intention of the legislation. It applies to everyone, with the same measure of rights. On the other hand, we want to make sure that they have a defence at the last minute if they feel that there are grounds for prosecution.

That is a fair balance. We cannot have it all the way and think that we will find the perfect formula. That is part of the administration of justice, as Senator Nolin has described.

Senator Beaudoin: I propose, then, after that long discussion, that we should not refer to section 35. I think we should refer to section 35 only once. As I suggested yesterday, we should word it this way:

Nothing in this act shall be construed and interpreted as infringing on the rights of the Aboriginal people under section 35 of the Constitution Act.

It says very clearly that when you administer that difficult act, you have to respect the Constitution. Who could be against that? Some people on this side think that it restricts section 35. We have no right to restrict section 35. It is there and it will always be there.

We should perhaps end the proposed amendment with the words, ``by virtue of Aboriginal or treaty rights,'' and then for the Aboriginals, we will have a clause that says that we should always comply with the Constitution when we deal with criminal law. Who could be against that?

Senator Joyal: If you want to introduce a non-derogation clause with section 35 for the whole of the Criminal Code that is another issue. I do not think we restrict the meaning of section 35 by stating what we have here.

Senator Nolin: We are already referring to section 35.

Senator St. Germain: Section 35 is encompassing rather than exclusive.

Senator Joyal: We recognize what is in section 35.

Senator Beaudoin: That is not what I hear.

Senator Cools: On the surface, Senator Bryden's suggestion sounds excellent. However, it creates categories of people whereby an act would be an offence for a non-Aboriginal and not for an Aboriginal.

I had thought that particular language was used in this wording because it is the language of the Criminal Code. For example, if you were to look at section 429.2, it says:

No person shall be convicted of an offence under sections 430 to 446 where he proves that he acted with legal justification or excuse and with colour of right.

My understanding is that, in the drafting of Senator Joyals' amendment, he was being consonant with the drafting of the Criminal Code. The Criminal Code clearly says, ``no person shall be convicted,'' rather than, ``no offence shall exist,'' or whatever it was that Senator Bryden said. From the point of view of just sheer drafting, Senator Joyals' proposal is more consistent.

Senator Baker: Mr. Chairman, I wonder if committee members would like to meet with the steering committee and Senator Adams and Senator Watt concerning this matter. As time goes on, we are getting farther away from a resolution. Surely there must be some common ground.

Senator Joyal is the mover of the motion, and of course he should comment on any suggestion, with the consent of the committee, to have Senator Watt and Senator Adams be part of that decision.

The Chairman: The clause that we are now considering can stand with the consent of the committee.

Senator Cools: It would be very improper, chairman, to go out of clause-by-clause for a steering committee decision.

Senator Baker: It is 5:30. I understand you, senator, have some amendments to propose yourself.

Senator Cools: Yes.

Senator Baker: We would not end the committee meeting.

The Chairman: That is not what is being proposed, Senator Cools. I think what is being proposed is that if the committee consented, we could stand consideration of this clause until another time, either at the end of the meeting or another day, and continue with the rest of the bill.

Senator Cools: You mean come back to it later in the day?

The Chairman: Later today or tomorrow.

Senator Cools: In other words, we would adjourn this meeting, if necessary, to continue clause-by-clause at another time.

Senator Baker: Oh, yes.

Senator Cools: That is acceptable. I thought you were proposing something different. I thought you were proposing to come out of this and go into another type of meeting.

Senator Baker: I think we all want the same thing.

The Chairman: The proposal of Senator Baker requires the consent of the committee. Is it agreed that the consideration of Senator Joyal's amendment stand until a later date?

Senator Cools: It is not standing; we are adjourning that portion.

Senator Baker: We are standing it and going on.

The Chairman: We are standing it until a later date. When we finish with the other clauses of the bill, we can discuss whether we want to continue with it them or go to tomorrow.

Senator Cools: Good idea.

Hon. Senators: Agreed.

The Chairman: Honourable senators, we are all agreed, and we will stand the amendment.

Are there any other amendments proposed to clause 2, after 182.2? I will call the numbers out in order. If you have any amendments, please speak to them.

Will clause 182.3 stand?

Senator Cools: Do you want us to vote on it?

The Chairman: Does anyone have an amendment to 182.3? Are any senators proposing amendments to 182.4?

Senator Cools: We have to agree. Chairman, we have to agree.

Senator Joyal: Put it to a vote, Mr. Chair. Call for the vote.

The Chairman: Okay. Honourable senators, are all senators agreed that 182.3 is adopted?

Hon. Senators: Agreed.

The Chairman: Are there any proposed amendments to 182.4? Senators, is 182.4 carried?

Hon. Senators: Agreed.

The Chairman: 182.5, Senator Cools.

Senator Cools: Honourable senators, 182.5 is in respect of common law defences. It states:

For greater certainty, subsection 8(3) applies in respect of proceedings for an offence under this Part.

Honourable senators will recall that there was substantial debate in this committee about the application of the common law defences as contained in the Criminal Code sections 8(3) and also in the Criminal Code sections 429(2). If honourable senators will recall, many of the lawyers had much to say about this, Mr. Ruby, Mr. Code and even the officials from the Department of Justice.

If we can look at Criminal Code section 8(3), which allows the old common law defences to continue to subsist and to live, it states:

Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament.

We are all aware of the major overhaul of the Criminal Code that took place in 1954-55. There was a great deal of debate, which I do not have to repeat.

I propose that Bill C-10B be amended on page 4 by replacing lines 22 to 24 such that proposed section 182.5 would read as follows:

No person shall be convicted of an offence under this part where he proves that he acted with legal justification or excuse or with colour of right.

In essence, my amendment proposes to spell out the common law defences that are made available in the proposed new section 182.5 as it stands.

My proposal would provide an improved and clearer 182.5. There was much debate over the existence of these defences. Many of the lawyers disagree and so I thought it would be useful to provide greater clarity.

The Chairman: Thank you, Senator Cools.

Senators, it has been moved by Senator Cools that Bill C-10B be amended as indicated. Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

Some Hon. Senators: On division.

The Chairman: Motion agreed to, on division.

Senator Jaffer, did you wish to speak to proposed section 182.6?

Senator Jaffer: Yes.

The Chairman: That is correct.

I ask for a minor change in the French version on page 5, line 5 that states, ``perte de l'animal d'assistance policière ou aux...''

There is a grammatical error. It should be ``des'' and not ``aux,'' I believe. It is on page 5, line 5.

The Chairman: It has been moved by Senator Jaffer that Bill C-10B be amended as indicated. Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

The Chairman: Motion agreed to.

Honourable senators, shall clause 3 carry?

Hon. Senators: Agreed.

The Chairman: Shall clause 4 carry?

Hon. Senators: Agreed.

The Chairman: Shall clause 5 carry?

Hon. Senators: Agreed.

The Chairman: Shall clause 1, the short title carry? I have just been informed that we cannot have the title until we have finished our discussion of clause 2.

Senator Cools: I just stepped outside for a moment. I thought we had suspended the discussion on clause one. We cannot carry a clause if the discussion is still happening.

Senator Joyal: Senator Baker proposed that the amendments dealing with the Aboriginal people be referred to the steering committee where representatives of the Aboriginal people, Senator Adams and Senator Watt, could have an opportunity to discuss the wording and come back to us. Do I understand that correctly?

Senator Cools: That is not proper. We are discussing clause-by-clause. I find this proceeding very odd.

The Chairman: Senator Cools, I understand what you are saying and you are quite right. In reality, we can stand the discussion on this until tomorrow and whoever wants to meet to discuss will be able to do so.

Senator Cools: We can simply adjourn this meeting until tomorrow. Let the record be crystal clear that those issues that have not yet been adopted, that the whole bill has not been adopted and let those who wish to discuss it do so. That is different from referring the matter to anyone else.

The Chairman: Honourable senators, we will meet at the regular time tomorrow. The agenda will consist of discussion on the proposal of Senator Joyal.

Senator Nolin: I understand that it could be easy to let the chamber decide at third reading. However, I want to be on record as opposed to that. We have a job to do and we will do it.

Senator Cools: Absolutely.

The Chairman: I did not think that was proposed.

Senator Nolin: It emerged out of your wisdom of discussion.

Senator Cools: The debate has been excellent and if members want a few minutes or a few hours to think things through, then that is to be supported. It is the committee's decision to make.

The Chairman: If the committee is in agreement, we will stand discussion of Senator Joyal's amendment and any others that may come up with respect to this clause until our meeting time tomorrow.

Senator Cools: And any other wordings.

The Chairman: Absolutely.

The committee adjourned.

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