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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 12 - Evidence, June 11, 2003

OTTAWA, Wednesday, June 11, 2003


The Standing Senate Committee on Legal and Constitutional Affairs met this day at 3:59 p.m. to consider that the Senate concur in the amendment made by the House of Commons to its amendment 4 to the Bill C-10B, to amend the Criminal Code (cruelty to animals); that the Senate do not insist on its amendments 2 and 3 to which the House of Commons has disagreed; and that the Message from the House of Commons concerning Bill C-10B, to amend the Criminal Code (cruelty to animals), be now referred to the Standing Senate Committee on Legal and Constitutional Affairs.

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

The Chairman: Honourable senators, the order of reference sent to us today requires us to consider the message sent to the Senate by the House of Commons on the subject of Bill C-10B. The order of reference sent to us yesterday requires us to consider the terms of Senator Carstairs' motion. For greater certainty we had them combined today. I apologize for the late hour at which they were received by members, but that was out of our hands.

Senator Stratton: Briefly, due to the lateness of the commencement of this meeting, there are three of us here. Some have travelled elsewhere for another important engagement. Two of us have to leave at 6:15 to attend other committees. Therefore, I would ask, if we are making good progress, that the meeting to be adjourned at that time, if possible.

The Chairman: I do not think that would be a problem.

Honourable senators, as you know, we are permitted by the rules to go in camera to discuss our draft report, should we believe it is necessary to do so. However, unless I get a contrary view from the committee, I believe that our general discussions should be in public.

I would like to briefly outline the framework for our proceedings today. Amendments 1 and 5 have been agreed to and are consequently no longer on the table. Those are the changes of the definition of "animal" and the housekeeping change with respect to the French word that needed to be amended.

Amendments 2 and 3 concerning the unnecessary death of an animal and Aboriginal practices respectively were rejected.

Amendment 4, the colour of right provision, was amended by the House of Commons.

Pursuant to parliamentary practice and procedure, for each of our amendments we have three options. We can accept the proposal made by the House, we can reject it by insisting upon our own original amendment, or we can put forth some alternate wording to address our concerns with respect to a given section. This last option would obviously be done with a view to reaching a compromise that we hope would cause the House of Commons to accept the amendment.

Since we must report to the chamber by tomorrow, I suggest that we proceed without delay on the discussion of substantive issues. I suggest that we speak to each amendment separately, beginning with what I suggest may be the easiest one to dispose of, the colour of right amendment, and then move to the other two, the unnecessary death of an animal and the Aboriginal practices amendment.

I also suggest, since we have a number of senators interested in taking part in the discussion, that on the first round we limit our comments to five to 10 minutes. In that way, we can give everyone an opportunity. We are all familiar with the issues, we have debated them at great length, and we are here not so much with respect to the substance of the issues as with respect to the reply we received from the other place.

I was hoping that Senator Jaffer would be here to lead the discussion on each of the amendments from the point of view of the government's position and why they made the particular changes or rejections they did. Unfortunately, because of a prior commitment, she will be late. I suggest that we start with the colour of right amendment.

To refresh your memories, honourable senators, because the offence was being removed from the property section of the Criminal Code, we originally proposed that in order to ensure that colour of right applied, colour of right should be moved as well. You will recall that this was a significant issue with respect to our rural caucuses. They were very concerned that that amendment be carried over so there would be no confusion with respect to its applicability. The Department of Justice indicated that it would apply under section 8(3). However, other experts who appeared before us indicated that there was confusion because it was being moved from the property section.

In order to ensure that there was no confusion, the committee recommended:

182.5 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.

The House of Commons returned the following amendment to our amendment:

182.5 For greater certainty, the defences set out in subsection 429(2) apply, to the extent that they are relevant, in respect of proceedings for an offence under this Part.

Senator Baker: I have not examined this or thought about it yet, but why is it necessary to have the words "to the extent that they are relevant." There is a problem with that because "relevant" has many meanings. You will recall that the major argument used by Clayton Ruby before the committee was that colour of right was not relevant to these provisions because animals were not property.

By the words "to the extent that they are relevant," I think perhaps, because there are other things in 429(2), the Department of Justice means to the point that they are relevant to the provisions of the act. However, the wording that they have suggested to us says the defences under 429(2) shall apply for greater certainty.

Does anyone know why the words "to the extent that they are relevant" would be added because of that? The rest of the sentence says only that the defences available under 429(2) shall apply. It is clearly understood that if they are not relevant they will not apply to a particular case.

Mr. Chairman, could someone explain why the words "to the extent that they are relevant" are there?

Senator Beaudoin: I personally want to stick with the five amendments. That being said, I am open to discussion on any amendment, as I am on the question of Aboriginals because we will have a study before us very soon. Whether it is instrumental on the fifth amendment, remains to be decided by the chair and this committee.

That being said, it is my impression that our five amendments are good. The House of Commons has been greatly influenced by the Department of Justice, and that is the answer to your question. For example, we insist on colour of right and the Department of Justice always said, "Yes, but to the extent that it is relevant." We debated this and we disagree on it. We said that we want the amendment with regard to colour of right as we expressed it. I do not see why we should accept an amendment to what we have suggested in the field of colour of right. There was a strong decision taken by this committee. Honourable senators will remember that Mr. Mosley said very clearly "only to the extent that it is relevant." However, we did not agree with that.

I am convinced that colour of right is a very good thing and I do not see why we should revise what we have said on the question of the colour of right.

The Chairman: In answer to your question, Senator Baker, when Mr. Mosley was asked just that question he said that the Department of Justice would suggest the words, in English, "to the extent that they are relevant," and in French, "dans la mesure où ils sont pertinents," just to make the point that not all of 429(2) would be relevant in the context of animal cruelty provisions.

Senator Baker: I understand that. I understand the logic of saying that we are going to put in, "to the extent that it is relevant," because there are other things covered in 429(2). However, when you put words like that in the law — "to the extent that they are relevant" — that can mean anything.

That was precisely the point made by Clayton Ruby, it should not be relevant, he says, because animals are not property. That was his entire argument. Yes, it was, I listened very carefully.

You cannot put in a phrase like, "to the extent that it is relevant." I do not think, Mr. Chairman. I do not know of any case. Search that string of words in Quicklaw or Westlaw and see how many hits you come up with. I bet you will not come up with one. I hate to say it, but it sounds as if it is a trick. It is a trick.

The Chairman: My reaction to that, Senator Baker, would be if you think of the phrase "as is relevant" outside of the property section then, indeed, it has no relevance and it could be a trick phrase. However, if you think of it in terms of what Mr. Mosley is saying, it makes some sense.

Senator Baker: If it were restricted to that, Mr. Chairman, but you would have to have additional words there and not just have, "to the extent that it is relevant." That is very poor wording and so open to misinterpretation.

The Chairman: The issue of ensuring that colour of right was included separately was an issue that was raised primarily by rural caucus and we can understand why. This amendment that we made went back to the other place, where they had every opportunity to see and study it. They appear to agree with the Department of Justice that our assessment of it is not exactly spot on and the Department of Justice is fine.

Senator Baker: Mr. Chairman, the other problem is this: The exact words that this committee suggested are the exact words that are in the Fisheries Act as a protection under the marine mammals regulations. I cannot see why the department would object to the exact same defences that are against killing seals improperly that are spelled out in the Fisheries Act. It is there. It is exactly as is worded there.

What is wrong with taking that same wording out? There is nothing wrong with that, Mr. Chairman, because it only meets the same requirements that are presently there under the Fisheries Act so that someone cannot turn around and say, "Well, what will we prosecute them under today? Let us do it under the Criminal Code, because there is a different defence under the Criminal Code than there is under the marine mammals regulations."

These qualifying phrases under 429(2) are open to interpretation and would be, in my opinion, rather dangerous. If you are saying that the defences are there, it stands to reason that there are defences there depending on what case you have. It is quite a different thing if you are charged with injuring a seal while in your profession of hunting than it is in harming a pet. Those things suit the defence that you are looking for.

I still do not agree with Mr. Mosley. I understand what he is saying, but he is really confusing the matter. "To the extent that it is relevant" is an argument that can be used against being able to use the colour of right as a defence under the act.

Senator Beaudoin: Should we insist?

Senator Baker: I think so. I cannot see any reason why we should not just insist on the very words we suggested, unless you take out "as far as they are relevant."

Senator Smith: Mr. Chairman, I understand Senator Jaffer, who will be delayed, was going to move that the Senate not insist on this particular amendment. I am prepared to make that motion for her if you need to have that on the record.

The Chairman: Not insist on changing or not insist on our original?

Senator Smith: That we do not insist on our original amendment, which they have reworded in clause 2 on the second page.

I do not want to speak for the Department of Justice, but I think they prefer that approach because you have an inclusion by a specific reference that says and it is right here: "For greater certainty, the defences set out in 429(2) apply to the extent that they are relevant." That is avoiding the reverse onus, which turns on what the facts are.

Another point made by Mr. Mosley — a valid point in terms of jurisprudence overall — is that there are all kinds of situations where colour of right is a defence. If, all of a sudden, you have one statute in which there is a specific reference to that, does that raise the possibility that wherever you do not have a specific reference that they may be lost? He did speak to that to some extent and raise that as one of their concerns. In any event, we can thrash around on this, but that is my interpretation of what they are saying. The members of the Commons committee obviously agreed with that.

Senator Pearson: I was happy with the amendment we put forward. However, I am struggling with whether I can live what they have come back with. For me, it seemed the colour of right issue had to do with property; is that correct? There is some suggestion that the provincial legislation, not the Parliament of Canada, determines what is property. Animals are property.

Senator Beaudoin: We insisted on our amendment after the discussion that we had.

Senator Pearson: I wonder whether I can live with what they have gone back to, because I am not sure how much it damages things. We know that animals are property as well as being animals, but not always — sometimes they are wild. I am not saying that I agree, I am just wondering if this is something that I can live with or not

The Chairman: Before we go to Senator Andreychuk, I would like to explore Senator Smith's point a little. My understanding, Senator Smith, is that section 429(2) precluded the Charter and that there is case law that says it will not attract a reverse onus. The Department of Justice thought our amendment would attract reverse onus without reference to 429(2).

Senator Smith: That is my understanding.

The Chairman: That would be helpful, if what they are saying is true.

Senator Baker: Are you saying it would be helpful to us not to have a reverse onus?

The Chairman: Normally, you would not want there to be a reverse onus.

Senator Baker: There are hundreds of examples in the Criminal Code where a reverse onus is placed.

The Chairman: No question about that, but they are done for specific reasons. If justice is saying that by not referencing 429(2), we are attracting a reverse onus, do we want to do that? That is the question.

Senator Baker: Certainly, it goes back to what Senator Pearson said a moment ago. The definition of colour of right, as we discussed in the committee, sometimes that extends to laws, as Madam Justice Cameron said in the Court of Appeal of Newfoundland case, R v. Ward; in other words, if somebody honestly believed in a set of facts which, if true, would have rendered their actions innocent.

You can vary the wording of what you mean by colour of right, but the point is that if someone up north has a particular way of doing things, of killing animals, that defence could be used. Some people say it cannot be used, but I think it could.

Senator Andreychuk: I want to raise a couple of procedural items. Are we going to explore whether we consider our positions were valid, and then we will come to some resolution, or are we going to do it piecemeal? I find the strategy difficult.

Part of what I am saying is coloured by what went on on the floor because we are conscious of the fact that we sent back amendments that we were certain were necessary. We do not add amendments lightly. There were a lot of other amendments we could have put in and we chose not to press for them. We selected what we thought was the best solution from the witnesses we heard.

The House has not agreed with us, nor it would appear, has the government. We can read the proceedings of the other side to determine to what extent they restudied the issue, and I hope we will hear from Senator Jaffer as to why the government has come to some decisions.

I hope that we would reflect on why we did the first amendments, hear what we hear from others to see if we have changed our position. We could either change the amendments in different directions, or we could bow to the wishes of the House of Commons. Neither of those courses attracts me. What does attract me is to determine again whether we thought those amendments were absolutely necessary.

The Chairman: I agree with you, Senator Andreychuk. However, we cannot do that in a vacuum. Now we have comments from the other place with respect to what our proposed amendments were. I do not think we need to rehash where we were. Each and every one of us agreed entirely that what we did was right.

Rather than act in some sort of vacuum, and I propose the best way to do it is to individually look at the amendments and discuss them. Unfortunately, Senator Jaffer is not here, but some of us have heard from other sources and have read what was said in the other place in the commons debates.

While we believe wholeheartedly in what we did, they may be able to shed some light on what we did, and perhaps even change our minds. We are here to have an open mind and listen to what they said, and to discuss what prompted us initially to propose the amendments.

Senator Andreychuk: That is what I was suggesting, but my dilemma is that I would like to hear all the discussion before I determine what I do. I heard a motion on the floor on one and that is what I am addressing. We know why we did it. I hope we will hear from the government critic. You say you heard from sources, I am not privy to your sources. I am only privy to what is on the record.

The Chairman: Sources meaning nothing more than Senator Jaffer having read the commons debate and listened to what they said. I am not privy to anything you are not privy to, except perhaps a conversation with Senator Jaffer.

Senator Andreychuk: I would hope we discuss the process so we take into account the opinions of others — that is, the house and the government.

In that case, I would like to go to this particular one, "as is relevant." If my memory serves me correctly, when Mr. Mosley realized we were concerned about this area, he attempted to facilitate us and put some crafted language together: "as is relevant." I am rather surprised it has gone all that way, because the point he was trying to make is if you want colour of right, it should be relevant to the animal cruelty sections. However, we are still stuck with "as is relevant." Relevance is an evidentiary issue, not a statement as to be made "as is relevant" — "as is relevant" to what, to whom and at what time? It is not the language that I would have seen in the Criminal Code and it is not particularly helpful to others.

What we were saying before was that the colour of right defence is important, particularly to the rural constituency, because they have become accustomed to it. It is not against the Charter because we went through that. People have known that there is this defence; they know the form it has taken. Now to say, "as is relevant," it is an evidentiary issue, it is a criminal process that muddies the waters and does not help them. If we are looking at the administration of justice as well as the content, those words may be the interpretation Mr. Mosley wants to give.

I am looking further at the administration of justice. Will it be helpful to those who wanted it, who relied on it and the government said we never intended to put you under scrutiny in any different way? Their language will not be helpful.

The Chairman: You are right, Senator Andreychuk. When we first saw the wording, "to the extent they are relevant," we had the concern that Senator Baker raised, and that is, if it is outside of the property section there may be no relevance. Perhaps we need to tweak it by taking out "to the extent they are relevant," and say, "as it applies in respect of proceedings for an offence under this Part."

Senator Andreychuk: Exactly. What we are doing then is signalling that the defence for those who were concerned remains. That is what we are trying to do. By putting in what I call "questionable wording," it becomes fudged. It does not help the government, does not help those who rely on it, and I do not think it ultimately helps the welfare of animals.

Senator Stratton: I would concur with Senator Andreychuk that we need to have a perspective on all before we deal with any. It would be much better to do that. Senator Nolin will be here in the morning and I would like him present because he is deeply concerned about this.

Senator Beaudoin: Do not forget the five amendments. We took many months to draft them and they are interrelated to a certain extent. This is why I am against the formula as far as "they are relevant." It does not add anything. Those amendments are interrelated.

There is nothing new in the discussion now. We had that discussion with Mr. Mosley. It is not new at all. There was nothing invented in the House of Commons. It is just the thesis of the Department of Justice.

The Chairman: I agree with you. However, as we go through this exercise, we must bear in mind that we must craft something that will be acceptable. Otherwise this bill will die. We do not want that. At least, I do not think most people here want that.

We have to make some accommodations if we want this thing to pass. That should be kept in mind while we discuss how and if we will alter some of the things that the other place has sent back to us.

Senator Grafstein: Senators, I apologize because I know a lot of hard work and thought went into your amendments. Quite frankly, I was just apprised of them in our caucus on Tuesday. I assumed that the problem with respect to the Aboriginal issue had been resolved under the colour of right. I knew that Senator Watt had concerns about that and I thought the question of ritual food was also solved; I assumed that.

I am doing a fast catch-up here. That is why I supported Senator Watt's request for another day to go through the material myself to see if I am clear about this. This is a very quick study; I have not done the thinking that all of you have done so I do apologize. However, I do have a problem even with the colour of right. I will come to the colour of right as a poor second guess.

Let me tell you why I have a problem with the colour of right. Let us take an Aboriginal hunter and a rabbi who has been doing his practice for 50 years or a cleric in the Muslim religion who has been doing this for eons. What does this provision do to those three individuals? As the chair pointed out to me, there is, for the first time, an offence for killing an animal. We have created a brand new offence that never applied before. Until then, the colour of right applied to a lot of other things but not to the killing of an animal.

Let us turn, for a moment, to what limitations can be placed by Parliament on the freedom of worship. Let us look at the limitations under the code. I refer to section 2(a) of Martin's Annual Criminal Code, and we have to listen to this carefully: "Not every effect of legislation on religious beliefs or practices is offensive to the guarantee provided by s.2(a)," which is the freedom of conscience under religion under the Charter. It goes on to state, "That paragraph does not require that the legislature refrain from imposing any burdens on the practice of religion." Therefore, there is, perhaps, the power for we in Parliament to impose burdens on the practice of religion or on the practice of Aboriginal rights. I think the same would apply there.

Having said that, let us see what the colour of right does. Again, I am looking at the actual wording of the Criminal Code. It defines property, real or personal property. Then section 429(2) states: "No person shall be convicted of an offence under sections 430 to 446" — I assume that now applies to the slaughter of animals — "where he proves that he acted with legal justification or excuse and with colour of right."

Step back. This says to a traditional hunter in the North, or to a rabbi, or to a cleric, that when you come to court — which you will because there will be a proceeding against you and you have no defence against that because this in effect has created an offence — you will have a defence. The defence will be this "colour of right" that we are talking about. However, why are we putting Aboriginal hunters or rabbis or clerics in a position where they must go to court and prove that they have a colour of a right to conduct something they have done all their lives? It does not make any sense.

The alternative is to make an exemption. I know that this is late in the game. However, this is exactly what the chamber of sober second thought is to do. I want you to think a bit. What position are we putting the traditional hunter in? Is he used to going to court? Can he defend himself? According to Senator Baker, he can because he has a defence. Why should he be called to court for doing what he does as part of his traditional lifestyle? What are we doing here?

Why can we not have a simple exemption to treat the Aboriginal hunter and the rabbis and the clerics in the same position we would treat an animal? I want to treat these clerics equally to an animal and exempt them from these provisions, from this offence. I drafted one and I can add it for traditional practices. I know the department will say, "Wait a second; it is not too clear," but, trust me; let the courts decide how clear it is. It will certainly be constitutionally correct. It can simply say, "No one commits an offence under this subsection if he is acting in the performance of his traditional practices or Jewish or Muslim religious laws concerning ritual slaughter or hunting for the purposes of preparation of clothing or food for human consumption.

What is wrong with that? What are we doing here?

I do not mean to make a big political speech about this but this is just a warm-up for the speech I will make in the Senate. I hope we can solve this problem here. Chairman, trust me, I am not criticizing the committee. I am beating myself on the head because I was told on the other side yesterday that this was solved. When I brought this to their attention, they said, "Oh, sorry, we were not in committee; it was not solved." I have asked them to bring my concerns to the minister as we speak.

The Chairman: In fact, Senator Grafstein, we did discuss that in committee. The amendment that we proposed took out the killing offence as proposed by the government all together and reinserted it after "injury to an animal" — unnecessary injury or unnecessary death. That would cover all of those things that you were concerned about. However, they have refused that amendment.

Senator Grafstein: We are back to square one.

The Chairman: We are.

Senator Beaudoin: What you said is important. We did it. We had that discussion.

The Chairman: I, like Senator Grafstein, have some concern as to where those on the other side where when this was discussed.

Senator Grafstein: They were absent. I can tell you, when I raised this with them today, they said they did not know anything about it. With all due respect to the other place, that is nothing new. They were told it is being done. They do not read and they assume it is being done. Then they say at the last moment, "By the way, Senate, come and save me." That is what happened. It was a «cri de cœur».

The Chairman: We need to maintain some order to our approach. I am not doing this to squelch debate on any of the amendments we are talking about, but can we first see if anyone else has any comment on colour of right?

Senator Cools: I wanted to say, Chairman, that perhaps we should decide at first the process that we wanted to follow.

The Chairman: Senator Cools, I do not know if you were here when I started. I already laid out the process. The process is that we will deal with each amendment. Everyone will have a chance to speak to it and then we will determine what if anything we will do with it. That is how we are handling it.

Senator Cools: That is not what I meant by process. I am saying, I thought I was following what you were saying: We will discuss everything and try to gather a sense of where the committee is. I was sure that I heard Senator Smith say that he was moving an amendment not to insist. That seems to me to be springing to a conclusion before we have a sense of what the committee wants to do. That is what I am speaking about.

The Chairman: Senator Smith has made that comment, but he has not pushed it. He has waited and listened to other people comment before he goes any further with it. I do not see the problem.

Did you have a comment, Senator Cools, on the actual colour of right?

Senator Cools: Yes. Your point about us getting a sense of getting where we are is a good one.

Senator Grafstein has raised an interesting point. It relates to the point that Senator Beaudoin made. We are now taking a sense of the committee on amendment number 4, is it not? However, we must be mindful that we arrived at that amendment on the colour of right and justification as a total.

The amendment pertains to the reducing or altering the blanket prohibition on killing, which was the early amendment in the early part of the bill. We were intending to have a "coupling effect," so to speak, in those amendments. They have to be discussed in concert with each other.

It is not a question of what we accept from the other place. They are interconnected. The understanding that many of us had at the time the vote on the report is that those amendments, made together, would protect the Hebrew and Islamic faith and also protect the scientific and husbanding communities, the hunters and so on.

I wanted to put that point out, because what we were trying to do in our wisdom was to remove and alter that blanket prohibition on killing and to soften the danger of these individuals being subjected to proceedings in the courts.

That was my understanding. I want to renew us.

The question before us is: Is there any new information or anything that has happened that would make us change our minds from the approach that we took a few weeks ago? To my mind, very strong and compelling evidence will have to be placed before me to convince me that the approach that we took after months and months of consideration and debate was not an adequate and well-considered one. That is where I stand.

My mind is open. I am waiting for the arguments to come forward — particularly from the government side — to tell me why I, as a member of the committee who moved that particular amendment, should change my mind and reverse my position.

When a chairman or a committee or chamber is asked to reverse its position, it is a very important matter. The principle is that committees and Houses do not change their minds lightly. It is not just so simple as, "Oh well, someone in the House of Commons said something. Let us just change our mind."

When a chamber of Parliament is being asked to change its mind, it is a serious matter.

The Chairman: May I just take a moment and rehash what I am hearing about the first amendment? I agree, Senator Cools, there is an interconnect. If we take them individually, then at the end we can put it all together and see if it suits our purposes.

I am sensing a wish for a change to the proposed amendment to our amendment, which is the one proposed by the Commons. If we were to take out "to the extent that they are relevant," we could go with that. That would accomplish what we were trying to accomplish. Is that correct? I think Senator Baker is onside with that.

I will read from the Commons amendment. I will make the changes that I think I heard suggested as I read: "For greater certainty the defences set out in subsection 429(2) apply in respect to proceedings for an offence under this part."

Senator Cools: No.

Senator Beaudoin: It changed greatly.

The Chairman: All we did was take out "to the extent that they are relevant."

Senator Beaudoin: We all agree it should not be "to the extent that it is relevant." We all agree on this.

Senator Joyal: We have to take a simple approach to understanding this. Senator Pearson put her finger on the issue. When this bill was proposed to us, you will remember that we raised the fact that animals were removed from the property section and put in a different section. We all first wrestled with the implications of that, because that has never happened before in the Criminal Code. Many of us questioned the Department of Justice on this.

Of course, if you create another class within the Criminal Code, there are consequences. If you take a defence like colour of right that applied to property, it is not applicable spontaneously to the new category.

When the House of Commons decides to revert back to the in-between classes of non-property, they want to use the colour of right defence in the limited way because it no longer applies to the property. They are totally coherent. I understand why they wrote it like that. It is because they bring back the property issue to the defence. That is essentially why.

We have to be coherent. If we accept their approach, we must accept it top to bottom. If we maintain our position, we maintain it top to bottom for the sense of our amendments. Senator Pearson is not a lawyer, but, in fact, she understood it very simply because this is exactly what we have been doing. We have been wrestling with the new category because it was creating a new offence.

We decided to limit that new offence the way that you and other senators proposed, Mr. Chairman. Senator Cools has proposed to eliminate the killing of an animal. We have adjusted all our amendments accordingly. I had an amendment to exclude lawful hunting, trapping, fishing and scientific research conducted in accordance with generally accepted standards, reasonably and generally accepted management husbandry or slaughter. The word "slaughter" was to deal with the religious issue.

When we decided to amend it the way you propose, I dropped those parts of the amendment. We have been coherent, but the government tried to reinstate its own approach. That is also coherent; I do not dispute the coherence of the government's approach. It is either one or the other. It is not taking a little of one and a little of the other.

Senator Beaudoin: We could stick to ours.

Senator Cools: We may have to do that.

Senator Joyal: On topic of the amendments of Senator Baker, we should canvass each of the amendments of the government and then we will come to a decision to either maintain our approach — which was a coherent approach — or to concur with the government and reinstate the structure of the original bill.

The Chairman: Senator Joyal, perhaps we ought to discuss the second amendment, the killing provision.

Let me pose this question: If we were to reinstate the amendment as we originally proposed it — that is, eliminate the offence entirely — and to satisfy the Justice's idea of injury not including killing, to add unnecessary killing as well, would 182(5) as the Commons has proposed it, without "to the extent that they are relevant," then make sense?

Senator Joyal: Certainly excluding the phrase, "to the extent that they are relevant."

The Chairman: We would take that out.

Senator Joyal: We would remove that; there is no doubt about that.

The Chairman: If we were to take that out, would the remainder of that proposal marry into our original elimination of the "killing offence"?

Senator Joyal: I would have to look back on it. I speak to you as a lawyer. I would not like to give you an instant opinion without putting the two side-by-side to understand how they were interpreted before in the original section.

I would like to ask Senator Baker, Senator Grafstein, Senator Smith, Senator Beaudoin and Senator Andreychuk to look into this so that we are certain of our actions to reinstate a different wording to protect something that we initially expressed in particular terms.

The Chairman: I raised that because the bottom line is that if we want this bill to pass, we have to try to find some accommodations but not accommodations that change the intent of our original amendments. For example, taking out "to the extent that they are relevant," suits our purposes if we go back to our original amendment of taking out the "killing" provision altogether. I see that as a small accommodation, not a large one, for the other place.

Senator Joyal: I accept the direction of your approach to this. I would like to be absolutely convinced that the wording, amended as you have proposed, would have exactly the same effect as the original wording had. I would have to rethink this to be sure.

Senator Grafstein: It would be nice to have it on one piece of paper.

Senator Joyal: We could do that. We still have another meeting. We will have time between now and the next meeting.

The Chairman: Perhaps we could turn our minds, for a short time, to the second amendment. I am not saying second in terms of any particular order but to 182.2(c), the "Killing provision," that we have removed and reworded into a previous section.

Senator Beaudoin: Was the word "unnecessary"?

The Chairman: To refresh honourable senators' minds, it eliminated the idea that killing an animal was an offence. There were, as you know, in the old provision two cases where killing an animal was offence — animals held for commercial use and animals held as domestic pets. However, there was no crime for killing a wild animal. Of course, there were provincial regimes that regulated when you could kill certain wild animals but it was not a crime.

The proposal originally read that it was an offence to kill an animal. If you went out and shot a moose and someone arrested you for it, you had committed an offence. You then had the opportunity to go to the next stage in the section and show that you had a lawful excuse for doing it. Justice officials told us that the lawful excuse would have been provincial hunting licences or common law practices or whatever.

As you will recall, we had much discussion about the R. v. Jorgensen case, in which a storeowner in Ontario was selling pornographic material that the Ontario overseer said was fine to do gave him permission to do and gave him a licence to do. However, he was arrested and Justice Sopinka in the case said not to come to court waving provincial excuses for breaching federal offences such as the Criminal Code because it does not work.

Justice officials replied to us, on at least one occasion that I remember, that he was only talking about pornographic material. The Supreme Court of Canada rarely speaks with such a narrow focus. They were talking about a principle, which is that a hunter in Newfoundland who goes out and shoots a moose and gets arrested, will find himself in a lot of trouble if he waves his provincial permit as his lawful excuse. The prosecutor will pull out R. v. Jorgensen and no one will say that that had to do with pornography and this has to do with hunting moose. It has to do with the principle of using a provincial licence as a lawful excuse for breaching a federal statute — in this case, the Criminal Code.

The Commons has decided to do something with that. I have looked at the debates and, to be quite frank, it was given short thrift. There was little said and they simply eliminated our amendment and put back the original wording.

Senator Beaudoin: Did they say why?

The Chairman: There are several reasons. I will give you the reasons. They said that it brings greater uncertainty to the law; that "without lawful excuse" is well understood in case law; that the Supreme Court of Canada has clarified that it is a broad and flexible term that is to be understood in the context of the offence; that "lawful excuse" is broad enough to encompass commonly accepted reasons for killing, such as hunting; that there is a term currently in the offence of killing kept animals — that is, commercial or domestic; and the courts have not shown any difficulty in interpreting its content and scope. This next part is critical. The Commons said that the use of the term "unnecessary death" is illogical and would lead to confusion. The term "unnecessary" has been judicially interpreted in the context of pain. I do not understand that logic; it is beyond me and I do not understand it.

Senator Beaudoin: If it is logical —

The Chairman: To me, the term "injury" already, as far as I was concerned, included death because the ultimate injury is death. They were not satisfied with that so we added it. Now, they are saying it is illogical in terms of the use of the word "unnecessary." Unnecessary death is illogical. Are there any comments on where we go with that?

Senator Joyal: I will make the same proposal. We have used logic in our approach and that is why we supported your amendment, Mr. Chair, with gracious respect to all senators on the committee, to put the amendment in its clearest terms. We took a logical approach when we drafted the amendments. The House of Commons made a decision after a very quick debate. There was one intervention from Mr. Paul Macklin, Parliamentary Secretary to the Minister of Justice, and representatives from the Alliance, the Bloc and the Progressive Conservatives; that was it. It was simply that each respective party spokesperson stated its position and it was not a study such as the one we are doing on this bill.

We have to understand why that amendment was supported by us and we want to continue with our logical approach in terms of the capacity for an individual to use animals without risk of prosecution over and beyond what is normally accepted in the scientific community, in the farming industry, in religious practice or in hunting and trapping. We either accept one approach or we accept the other approach. It is difficult to make small adjustments. My reading of the comments from the other place is that they did not revisit the many arguments we put forward in support of our approaches.

I say that with the greatest respect for the other place. However, the original bill was adopted in less than one week and we have spent six months wrestling with the overall aspects. It is understandable that their approach was a less painful exercise than what we have endured to understand what we are doing today. I will give you more examples when we speak to Aboriginal issues.

The Chairman: Senator Grafstein, just to go back to a point you were making, by putting that in another section and using words like "unnecessary," you import all the defences set out in the famous Menard case with Justice Lamer, and that would give protection to groups such as Senator Joyal set out.

Senator Grafstein: Give me the three or four steps that take me to that conclusion. I looked at one amendment, and the amendment deals with the Aboriginals; an earlier amendment dealt with slaughter, but that was taken out. Take me through the steps so I understand that ritual slaughter is exempt.

Senator Jaffer: We are back to colour of right.

Senator Baker: It was everyone's idea that the correction that was made would have made everything okay. However, that has been taken out; you are absolutely right that has been removed. There is no protection.

Senator Grafstein: What are the words that have been taken out — the two steps? Just give me the phraseology.

Senator Baker: The chairman can explain exactly what we proposed — amendment number 2.

Senator Jaffer: On a point of order, I know that Senator Joyal is not at all trying to omit anyone — but there were more people than that who spoke. Svend Robinson, Tom Wappel, John Bryden and Peter MacKay, also spoke. I accept that it was a short time, but you would want the record to be clear.

The Chairman: We will come back to your point, Senator Grafstein. However, before we started, Senator Jaffer, we indicated we were ask you for an explanation on the government's position with respect to the rejection of the amendments, and also the acceptance of the two. With the indulgence of the committee, perhaps now that Senator Jaffer is here we could do that.

Senator Jaffer: I sincerely apologize for not being here earlier. I had an emergency to deal with.

As to the grammatical revision, that is not an issue. That has been accepted by both sides. I will not take anyone's time with that. The animal definition has been accepted.

I will start with what we were talking about, the "unnecessary death." My explanations will be short because we have a lot of work to do and you have already heard from Senator Carstairs yesterday. I do not want to repeat at length what she said.

Basically, they feel that joining the two defences — pain and suffering — is not relevant to the meaning and that the amendment brings uncertainty as to what the law means. The phrase "without lawful excuse" is well known to the law, which is why it was used in the bill. Moreover, the scope of the meaning is not narrow at all. That is why they feel it raises confusion and that it is not as clear as our committee thought it was.

I do not think I can add anything more to the Aboriginal non-derogation clause. The committee knows the position of the government. The position is that our committee will be looking at it. Once we have looked at it, the commitment is that it will either be added to every bill — I am not meaning to take what our committee says, you, but that is the government's position and you know it.

Regarding the colour of right, they agree with the principle of what they have said. They feel the way our committee had it will not include all the case law. It is the opinion of the government that it does not cover the present case law. To remind all of you, we were very concerned about the colour of right. One of the reasons we wanted it in was to make sure that the judges understood that we wanted colour of right, and we wanted all that legislation in, because if it was not in, the judges would get the message that Parliament did not want it. That was our preoccupation, as you remember. They are saying that we have created a new wording and that will give the judges an idea that we have changed the definition of colour of right. That is why they prefer the wording that they had suggested.

Senator Baker: The reason, then, for changing what we call "colour of right" — the legal justification or excuse and colour of right, which has been interpreted in case law to mean legal justification or colour of right or legal excuse — the "and" has been interpreted as meaning "or."

The House of Commons is saying that the reason you want to put in 429(2) is to drag the case law — not the legislation — along with it. Is that what you are saying? That is so a judge would know and lawyers would know that it is the case law that is presently in place regarding 429(2) and the defences thereof would apply to future cases as it relates to this section.

That is quite a different reason than I was led to believe. I was led to believe a completely different reason, and that was "to the extent that it is relevant" and they did not want to have a spelling out of the actual defence of legal justification, excuse or colour of right. That is a new one; I did not hear that before. That was proposed early in our discussions, but I did not understand that to mean that was the reason from the House of Commons. That is interesting.

Senator Jaffer: I could be wrong. I will double-check if you wish, but that was my understanding.

Senator Baker: I suppose that might have some logic to it. However, there are some other things that counteract that. Yet, that is certainly a better excuse than I heard before regarding why the change.

Senator Jaffer: There is one thing that I did not cover on the colour of right. The reason I did not cover it — but I should — is that last time when we were looking at this, I had talked about the reverse onus that is created. That is an issue that is real preoccupation. The way we have it is that the person has to show that they have a right.

There are two ways; the prosecutor has to show that they have a case. The way we have it, it becomes a reverse onus; and we were all very much preoccupied with not creating a reverse onus — not dragging people into court — so that was the other reason.

Senator Baker: The only problem with that, of course, is that right from the offence of common assault, under section 266 of the code, you examine mens rea basic; and that applies to practically every offence there is. Therefore, there is a reverse onus — and it is a good thing there is a reverse onus in those cases — because otherwise there would be no defence. You understand what I am saying.

Senator Beaudoin: This is not always under the Charter; we have to remember that.

Senator Jaffer: I am not talking about the Charter.

The Chairman: Are there any further comments, honourable senators?

Senator Cools: I had heard from a private source that the government — and I am not too sure when we are talking about the House of Commons and when we are talking about the government — that those words were put in for a reason different from what Senator Jaffer just said. I was told that they were put in because 429(2) includes other sections of the Criminal Code and other provisions that may not be relevant to the issue at hand. The "to the extent they are relevant" were used to try to exclude the irrelevant portions of 429(2). Therefore, I was told something quite different.

Senator Jaffer: Just to clarify, you are right. That is also part of it. There could be other defences that would not use the words. You are right in what you said; that is also part of the reason.

Senator Cools: Okay. In a way, we are trying to find out what was in the mind of the House of Commons when they sent us this message. The problem is there is no one here from the House of Commons to explain that to us. It is a very curious sort of thing. I know that you are a government supporter — as are most of us are here — but there is a difference between the government and the House of Commons. Perhaps at some point in time, Mr. Chairman, when we proceed along this road, we should have someone who is a member of the House of Commons who can tell us what the House of Commons was really thinking.

Senator Andreychuk: It seems to me we put this section in because we wanted to make a distinction from property rights. They, on the other hand, want to ensure that the same defences in the line of cases continue. That is a very relevant point because we do not want to go over that ground and put people through. The problem is that we did not trap their concern, allegedly; and we cannot live with theirs because it seems to open up all kinds of other vistas.

I wonder we have legal counsel look at the wording where we make the distinction that it is no longer a property offence — which is what we were doing — but also in some way ensure the line of defences continue. I have not thought about that. We have overnight to think about it, but that could be if we are looking for a rationalization of this section with what the House was preoccupied with but maintaining the integrity of what our amendments are doing. Can we find a different wording?

I do not think that we can live with "to the extent they are relevant." The thought is okay. The words can be used in a lot of ways; therefore, is there a middle ground?

The Chairman: Just to add to that, Senator Jaffer, before you arrived, Senator Baker was discussing that particular wording. There was a question of now that this defence was outside of the property section, then "to the extent it is relevant" may be, in fact, irrelevant and may have nothing to do with anything. That was a concern of Senator Baker.

With respect to the non-derogation clause, perhaps we can begin with Senator Jaffer if she has anything to say about it, and then we can go to Senator Watt.

Senator Jaffer: I do not think I can add anything else and take your time on what I have already said on the non- derogation. I have put forward the position of the government; I have nothing else to add to that.

Senator Beaudoin: In that aspect, we have to study it. It is from the Senate. It is a very difficult problem. There is no doubt about that.

Does this mean that we will not consider the fourth or the fifth amendment because we are going to have a study on the non-derogation? Is it only after that that we will deal with that question? Do we have to answer that question?

The Chairman: Senator Beaudoin, we can pose that as a question, and we can hear from Senator Watt and any other of our Aboriginal senators who are here.

I will quickly clarify what Senator Beaudoin is saying. One of the problems we had expressed in regard to the non- derogation amendment was doing it piecemeal. That was because there had been no reference to our committee to study it as a whole and see if we could come up with a one-time solution for it — either by stand-alone legislation or through any other means that were available to us.

Senator Beaudoin is wondering now — at least this is how I interpret his question — whether we can put aside the non-derogation amendment because there is a reference for our committee to deal with, or should we insist on going forward with it?

Senator Beaudoin: In other words, the message is before this committee, no doubt. Now, what do we say about the non-derogation clause? If we are going to make a study and at that time we may wait for this and set aside the others.

Senator Watt: For how many years?

Senator Beaudoin: No, we "may." Perhaps it is not the best politics to follow. Perhaps we should do it anyway. This is why I raised the question.

The Chairman: The comment we received from the House of Commons said it disagreed with the amendment because it is unclear and creates confusion about whether the intent is to create a different test for liability of Aboriginal persons and because there is no clarity as to what "traditional practices" are and how law enforcement can be expected to act accordingly.

Senator Watt: Honourable senators, I do appreciate the fact that we are participating in this. I guess it is important. On the other hand, maybe it is important to you but it is not really that important to me. Let me clarify that in my own way.

It is not real. It is not factual. It is not based on the day-to-day life and the reality of people. This whole notion of what the government is trying to do is a complete disconnect. It is disconnected from the reality of people.

Do you follow what I am saying? If not, I will try my best to try to clarify this. I am not saying I disagree with what has been proposed. My preference would have been to keep the people out of court altogether, but that is not the name of the game.

I think I participated here. I heard the witnesses from the Department of Justice. They gave you very clear directions from the way I understand it. They do not want you to deal with the concept of total exemption, nor do they want you to move into the direction of a two-tiered system. What have you left? The only thing you can do is build in some defence if you are ever taken into court. I swallowed that. I bought that. That is the name of the game today.

Now, with respect to you bringing in the concept of non-derogation clause, what do you want to say? The Constitution is very clear already. Section 25 describes the non-derogation clause. However, the government does not want you to use that non-derogation clause on this piece of legislation because they are worried about exemption. What will I do?

Honourable senators, the only recommendation I can put forward is that if you are waiting to have a discussion on a non-derogation clause and hope that we will rectify this through that avenue, you will have to wait for 100 or 125 years or longer. This issue has been around since 1995. It is not new, senator. Even before you came in, we were wrestling with that issue; we are still wrestling with that issue.

For that reason, honourable senators, I believe you should stick to your guns. Do not change a comma and stick to your guns. As committee members, you make your decisions according to your own conscience. That is all I can say, honourable senators, because there is nothing more I can add to that.

The Chairman: For the sake of honourable senators who did not participate in the debate, the non-derogation clause attempted to ensure that the legislation did not derogate from or abrogate from any of the rights of our Aboriginal peoples while recognizing the government's right — indeed, obligation — to regulate the exercise of those rights. Furthermore, to ensure that that in regulating the exercise of those rights, they were not doing through the back door what they were not permitted to do by the Constitution through the front door.

While that is sometimes a rather thin line, there was, among the committee members, a clear understanding that the intent of the amendment was to ensure that the rights of our Aboriginal peoples were not derogated from, but that we were not at the same time interfering with government's right to regulate the exercise of those rights.

Senator Beaudoin: That answers my question in respect of the Aboriginal nations are concerned. However, the fact is that we have said the amendment brought forward by Senator Joyal is good for our committee and for our report, but the study that we will do is much larger than that. There is no comparison. We have solved one problem. We did it the right way. We agreed or disagreed, but it was done, and it was well done. In that sense, we can stick to our amendment in that field for our report tomorrow. If I understand Senator Watt correctly, this is what he wants.

The Chairman: I will summarize the concerns that I garnered from the debate in the Commons about our amendment in point form. They thought the clause was unnecessary because of the right of Aboriginal persons to raise a claim under section 35 of the Charter. They thought there was no risk of prosecution. They thought that our amendment created substantial "confusion"; that it created a reverse onus on Aboriginal peoples. They said that Aboriginal peoples can go anywhere under this proposed amendment to exercise their rights, and raised the fact that traditional practices were not defined created confusion.

Senator Joyal: I read the arguments that were listed. Frankly — and I speak freely here in the committee — what they have done is essentially this: They have taken just the questions that we have raised around this table when we were discussing the amendments. In an intellectual, honest process, you ask what things mean, and you provide an answer. We were satisfied with the answers around this table. There were questions raised at the report stage and on third reading, and we provided answers.

Essentially, they took the questions without the answers. They just listed the questions raised around the table, as if, when you discuss something and raise questions, you conclude it is wrong. I thought the way it was presented in the House of Commons was rather strange.

They also said that it is unnecessary, because if Aboriginal people are unsatisfied, they just have to go to court and waive section 35. They talk about reversing onus. I listened to the debate yesterday and, frankly, I could have cried. When there is a fair, open process of discussion — as we have here — we participate with the idea of learning something, listening, trying to understand honestly, consciously, trying to be convinced of what is the right thing. When I read that list, I thought it was not the proper way to address an average, intelligent person.

Furthermore, when I read that they asked, "What does it mean by "traditional practice? We do not know what it means." Listen to this: Canada's National Parks Act, subsection 17(3), talks about traditional purposes in relation to Aboriginal people twice. The Canadian Environmental Assessment Act, subsection 2(1) raised the topic twice. The words are in the bylaws of the National Energy Board. Furthermore, the Firearms Act contains the expression "traditional practice" in the definition section of "Elder." "Elder" in the sense of Aboriginal culture. What does it mean? Elder means an Aboriginal person who is a member of an Aboriginal community and is recognized by the members of the Aboriginal community as having extensive knowledge of the culture and traditional practices of that community. It is even redefined in other regulations of the Firearms Act as Aboriginal community, which means a traditional collective of Aboriginal community that has a distinctive culture that includes engaging in traditional hunting practices. That is in the Firearms Act.

I had a discussion with a representative of the Department of Justice, the parliamentary secretary to the Minister of Justice, who is responsible for the firearms registry. We all know the battle that we fought around this table, and I was not a member of this committee when the Firearms Act was amended to protect the Aboriginal people. The message from the House of Commons yesterday indicates that because there is a different test for liability of Aboriginal people, and because there is no clarity as to what traditional practices are, they do not know how to expect enforcement. If they cannot enforce the Firearms Act because they do not know the concept, I do not know how they will implement this bill. It is the same department.

I am open to negotiation, Mr. Chairman. I share Senator Beaudoin's preoccupation. We want to do things right on the non-derogation clause. I am also wrestling with whether we should do it now or whether we should wait for our study. What will happen? Will we be prorogued? Will we be disbanded as a committee and then have to start the process again? Meanwhile, that will be in the Criminal Code. The Aboriginal communities, as Senator Baker said, will be fighting and, at any rate, they could waive section 35 in court and reverse the onus of proving they have those Constitutional rights.

I was hoping to be convinced by the message of the House of Commons, but in all honesty, when I read the arguments put forward in the address of the House of Commons, I was not at all convinced. If I have a message to send back to the House of Commons, it is better that I do not draft it today. I will take 24 hours to cool off, because I will tell them what to do with traditional practices, Mr. Chairman.

Senator Andreychuk: I had some concerns about this clause and raised some of the questions because time and time again the government and others really do not understand this. I have heard a lot of fine speeches from a lot of members of Parliament. We all say we are for Aboriginal rights, but when it comes to applying them, we do not do it. That has been my complaint. I have been here now for 10 years. I have said it over and over again. I have not taken the same approach as Senator Watt. I worked with Aboriginal people. The lowest point of my time in court was when they had to come to court to defend themselves. Therefore, I worry when I see something that may push them into court more, because these are usually people who do not have access to Aboriginal leadership. They are generally people who actually live harvesting rights; who are so far from the nearest town that they do not even know where the courts are and what they are. They run into some enforcement officer and they have to apply.

That is the reason I question every one of these clauses. I question them from many points of view. Obviously, there was a consensus in this room that we should not really need non-derogation clauses. That is the sad part of our society. That is what the Royal Commission on Aboriginal Peoples said. We created that as a little sop to say, "Gee, we have not done what we should have done under the Constitution, so now we will point it out to you that we will live by it." That has created more problems than it has solved. I am not sure I am for non-derogation clauses because it seems to be a way of deflecting from the fundamental rights that Aboriginals have.

I will continue to question clauses because I think that is our responsibility. I raised them not only in this committee, I raised them in the house and got some flack from my colleagues because of it. I am perfectly willing to accept that.

I do not think we should shy away from doing what we are doing. I do not think we should consider not having a non-derogation clause because of some study. Too often, we have been signalled with studies and they did not happen. I do not want to bring up old saws, but the Human Rights Committee will be studying the issue of women on reserves. We were undertaking that in the Aboriginal Peoples Committee a couple of years ago. Where did it go? It died. It was deep-sixed by prorogations. I do not think we stop any process because of studies.

On the other hand, we should be absolutely certain that our questions are addressed. The interesting thing to me is not that they misunderstood us — I am not boiling about that in my chair. What is sad to me is that people in the Justice Department and members of Parliament do not know what our Aboriginal people do, how they live and where they live. It is a shame that they will come back and say that we do not need the clause because they do not understand what harvesting rights are.

I made the point that a young enforcement officer at 18 years old of age would not know how to interpret it within this bill. To what extent does he have the right to afford Aboriginals the full extent of it? I never for a minute thought that members of Parliament would not know. Obviously, they have never read any of the material. I do not know what their constituencies are like. In terms of mine, I would not be here if I did not understand what Aboriginal rights are.

I hope we do not shy away from questioning because that is our other responsibility. We are balancing. We have to consider some sort of non-derogation clause. I hope we think about that overnight.

Senator Watt: What does that mean?

Senator Andreychuk: What it means is we will put all of the clauses together. We have a process in place.

Senator Watt: Mr. Chairman, I would like to get back to the point. There was a motion on the floor to deal with the non-derogation clause in this committee. I do not think we should be preoccupied with that. That is not the issue. The issue is Bill C-10B. That is what we are dealing with here.

The motion put forward by Senator Carstairs in the Senate was to refer the non-derogation clause to this committee. We should not be preoccupied with that because it is not even here. The bill that we are dealing with is Bill C-10B. Let us deal with that. Let us not get sidetracked from the fact that there is some possibility to rectify it through a non- derogation clause. I do not buy that. I am a bit like you, Senator Andreychuk, in terms of this non-derogation clause. It helps to confuse the living daylights out of the people who try to run the system.

I think we will have to deal with the issues head on. If there is a law that will be applied to me, I want to know how that law will apply to me.

The Chairman: In fairness to Senator Carstairs, she made a commitment to refer the study to this committee. She has honoured that commitment. The fact it is not here yet is not her fault. It has been held up.

Senator Watt: That is not the issue. I am sorry. That is not what we are dealing with here.

The Chairman: You made the point — and I think it should be clarified — that the fact it is not before our committee really has to do with other people wanting to debate it in the chamber. What I am gathering from what you are saying, Senator Watt, is that irrespective of the study being referred to our committee — and this follows in line with what Senator Joyal was saying about what we do in the meantime — you do not want to see this amendment of our committee fall off the table because of the reference.

Senator Watt: Not at all, not at all.

Senator Beaudoin: All this is true, I agree entirely. We will deal with that fifth amendment. For the purposes of our mandate for tomorrow, irrespective, as you said, there is no doubt that the study that will come. In any case, the study is much larger than what we are doing for the fifth amendment. We have no choice about this. We have to do it. The study is quite another thing, of course. I agree with everything that has been said before.

Senator Watt: Mr. Chairman, I do not want to begin to start attacking my good friend Senator Andreychuk at a later date. I would, however, like to flush her out a little more in terms of what she would prefer to see. Can you go into it a little more detail in terms of what you think might be the alternative solution, if you have one?

Senator Andreychuk: I put on the floor of the Senate my concerns about how it will be administered. What I was signalling is that the government had better understand — even under the present law — how difficult it is to administer when you are out in the field. It causes great difficulty. I am always worried not only about the law but the administration of justice. We can pass all the fine laws we want here, but it is how they work in the small towns and the villages in the country that I come from that count.

As I indicated on the floor, I did not vote against the bill. I would not vote against it. I raised concerns. I am still concerned about your rights being protected under your treaty rights, under your constitutional rights. The words "in any area" appear not to have the same connotation in the French version as they appear to have in the English version. If we are to stick to our amendments, I would want some reflection on that. If we cannot come up with a better wording, I have lived with it once; I will live with it twice. I hope that explains my position.

Senator Joyal: That is why we are having this discussion. In the proper, fundamental role of the Senate, we are trying to think twice about those things. They are important. Most of the members around this table will be involved in one way or the other in the future months or years — and I hope to be — in that discussion and study.

I know Senator Nolin is not here, but he spoke vehemently in the house earlier this week and last week when we were discussing the government's proposal. Senator Carstairs took great pains to have the authorization to introduce that on behalf of the government. It should be fair that the record states that here, that it is such an encompassing study, because we want — and Senator Nolin has mentioned it — to revisit the process through which the Department of Justice drafts bills that might have implications for Aboriginal people so that the bills reflect the proper concerns of the Aboriginal people. We are not trying to patch, ex post facto, an omission or something that hurts the culture of the Aboriginal people.

Senator Andreychuk is so right that the issues dealing with Aboriginal people speak of a different culture, a different civilization that predates ours. We try to impose upon them concepts that are foreign to their own reality.

When we deal with those issues, we want the administration of justice, as Senator Andreychuk so ably mentioned. We want the Department of Justice, when they draft bills that are clearly moving on rights of Aboriginal people, to ensure that they meet the tests of the Supreme Court of Canada. Our good friend Senator Beaudoin knows the Sparrow case as you also know it. The worst-case scenario is that we are always on the defensive. This to me is the worst-case scenario, because one day, for all kinds of reasons, we are taken by another debate, we let it go and then we wake up and we say, "What did we do?"

As a House of Parliament, we are supposed to have a special eye and a special interest on minority rights and singularly on Aboriginal Peoples, because of the approach that successive governments in Canada have had. I want to find a solution. We are now confronted with a decision we have to take now — not in the ideal world, but in the world of today.

Like Senator Andreychuk, I am always questioning myself: Is it better to do this than not to do this? I prefer to take the risk of protecting Aboriginal people, especially compared to the approach and the general solution that is put forward.

Senator Grafstein: I, and others here, have said repeatedly that as legislators, we are trying to sustain the constitutional principle of the Parliament being supreme. However, there is a corollary to that, and that is that we do not want the courts to continually invade the responsibilities of Parliament by making laws that are not too clear.

A report back from the other House such as this, that really has not looked at the issues as carefully as we can — and I say this respectfully — reduces the respect for Parliament. The result of all this is the worst of all worlds, which is to force the Aboriginals to conduct their traditional way of life through the courts. They have to approach the courts to conduct their traditional way of life. Therefore, that brings the courts and the administration of justice, as Senator Andreychuk says, into disrepute, and for a lack of respect for the rule of law. This is because they say, "This is our way of life. We have to go to the courts to prove it every day." Why so?

It is the most insidious of reverse onuses to compel Aboriginals to change what they have been comfortable doing for hundreds or thousands of years and to be concerned about an RCMP officer tapping them on the shoulder and saying, "By the way, we would like you to come to court here, because we have been watching what you are doing and we think this is inconsistent with the law."

This is bringing the law into disrepute. I wonder where the mindset of the Department of Justice is on this bill. I cannot understand it. I put it on the record, Mr. Chairman, because I think there are people here who will take these concerns back to the government, and perhaps say to themselves, "I think it is time we took a second hard look at what we are doing here." This is not the first time we have done this.

I at one time proudly served on this committee and I raised this issue a number of times. I was then was told my services would be requested otherwise and elsewhere. Now that I am back here for a moment of free time, I thought I would make that commercial once again.

Senator Smith: From a procedural point of view, I am wondering whether there is much more we can do this afternoon. Senator Grafstein raised the issue about wondering where the heads of the Department of Justice are. That is a very valid point. We are meeting tomorrow. I do not know why we do not have the appropriate official on hand. Time is precious. We have already gone back to them once with some differences to their bill; to go back a second time is not exactly routine. It is not unheard of, but it is not routine. We will have some further consolidation. There is no harm in inviting the minister — as far as I am concerned — or the chairman of the committee. I am not certain of the protocol on that, but if you want to find out where their heads are, time is of the essence and you had better have them here and ask them.

I want to apologize to some extent, that when this committee was doing these clauses, that is when I was away with my surgery. I am not as au courante with all the nuances and the hours you have put in because that is when I was away.

The Chairman: I would suggest, Senator Smith, that I take this evening to try to bring together the thoughts that were expressed here this evening in a kind of coherent way so that we can reassess them tomorrow morning, bearing in mind a couple of things. First, I do not think anyone has made any indication that we move very far from the recommendations that we made originally. We must consider that, in light of the fact that we may be killing this bill if we just keep ping-ponging it back and forth. That is a consideration for this committee — probably not at this stage, but it is a consideration. It may or may not be one to which we give a lot of weight, but it is one that we should consider.

As well, this evening, we will talk to officials and see if we should have someone from our legal counsel come and talk about the issue that Senator Joyal raised on the colour of right, and how, if we delete the relevancy section, it falls in line with the other proposal for an amendment that we made.

Second, it may indeed, Senator Smith, be a good idea to have someone like the minister here to hear our concerns first-hand. If we are going to send it back in much the same fashion, it may provoke at least some more debate with respect to where we are coming from, and that we are not just doing it as a confrontational approach.

Senator Joyal: I fully agree, Mr. Chair. I see Senator Smith nodding, too. We should attempt to this difference of approaches between the two Houses. Both Houses have taken a stand on this and we must follow the rule of the House. The rule of the House, as was mentioned this afternoon in the chamber, is through a conference.

The Chairman: It would be our first one since 1947, Senator Joyal.

Senator Joyal: I know. However, if you read Marleau and Montpetit's House of Commons: Procedure and Practice — which is the bible — pages 674 to 676 explain the procedure that the House itself recognizes. It is a formal procedure. If we want to resolve this in the context of the sovereignty of each House, there is a procedure through which, if we insist on those amendments, we can reconcile in an amicable manner as Senator Smith and yourself have suggested.

The Chairman: I did not mean to imply that there was any limit on the number of messages that could go back and forth before — and if — we go to a conference. I am saying that we have to bear in mind that if this is not resolved, the bill dies.

Senator Andreychuk: The point I would like to make is that conference may be the last resort. We have been speaking to department officials and the minister obviously should know by now there is this conundrum between the two Houses. The minister, and the government that has a majority in both places, must understand that this is not good for Parliament.

No one has said that we are not in favour of the objective of the bill. Senator Joyal says that we have a difference of approach. With all the things the minister has on his plate, I am not sure it is crystal clear to him why there is a difference. The difference appears to be amendments as opposed to approaches. If the minister knew that, then we would know where we are.

I do not see the point of sending amendments back and forth and escalating to a conference. It would seem to me the impasse can be resolved by the minister. Therefore, I would urge that a discussion take place overnight.

Senator Cools: between the minister and us.

The Chairman: I just wanted to make this point. It has been drawn to my attention that, under ordinary circumstances, we probably would have had officials from the Department of Justice here. However, the meeting was posted as being in camera. Of course, it was not in camera but that probably indicated to them that they would not have gotten in.

We will this evening make an effort to get the minister and some officials here tomorrow. We start at 10:45 tomorrow morning.

Senator Beaudoin: Is it not possible to start at nine o'clock or ten o'clock? We have a lot of work to do.

The Chairman: The problem is, senators, we have a set time. Unless we get some consensus to start at an earlier time —

Senator Grafstein: Mr. Chairman, this committee has been placed in an untenable position. The debate is adjourned, we have to come to committee and we have two days. You were very kind in the Senate the other day to say we shall take the time that is necessary. I think if we can use extraordinary efforts to allow ourselves another three quarters of an hour tomorrow morning that would give us time to think about this. I hope that the minister comes to address this because I do not think the officials can deal with this question.

The Chairman: Perhaps some of the more senior senators can help me out here. Is there any reason why, with the consent of the committee, we cannot start at an earlier time?

Senator Stratton: You have to get the permission of the whips on both sides.

The Chairman: Do you agree, Senator Stratton? I will talk to Senator Rompkey. We will look at ten o'clock and again it will depend on availability of this room. I cannot imagine anyone having it for an hour or 45 minutes. If so, we will find some other room and we will post it on your e-mail addresses.

Senator Cools: I am very curious. You say you are going to think on this tonight, but our time frame is extremely short. We need to be ready to report tomorrow by 1:30. I am trying to figure out what decisions you can possibly take tonight. Should they not be taken now, because the time frame is very short?

The Chairman: If we were to hamper ourselves with decisions this evening, people would claim we did not have an open mind tomorrow to meet with officials. You say 1:30 is the deadline for reporting. It is not, really. We must have the report in sometime before the adjournment tomorrow.

Senator Cools: We have to stop meeting at 1:30. We must adjourn by 1:30. Whatever decisions we are making have to be done by 1:30, even if the report shows up an hour later.

I also have to remind senators that Justice officials are out of the picture. This is not a message from the government; this is a message from the House of Commons. We could talk to the minister because the minister is a member of the House of Commons. However, constitutionally, let us remember this is not a proposition between government and us. This is between the House of Commons and us now. We have to proceed very carefully, so it is not just a matter of calling in the officials from the Department of Justice officials.

The Chairman: Let me clarify that. I used the word "officials." I did not mean to use the word officials. I was referring to members of the House of Commons — either the minister or the parliamentary secretary, or other members who may wish to come and talk to us.

The committee adjourned.

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