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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 12 - Evidence, June 12, 2003

OTTAWA, Thursday, June 12, 2003

The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:38 a.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 yesterday 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 on Tuesday requires us to consider the terms of Senator Carstairs' motion. Copies of both orders of reference were distributed at yesterday's meeting when we began our discussion concerning our reaction to the House of Commons' response to the amendments we had proposed.

We are permitted by the rules to go in camera to discuss our draft report should we feel the need to do so. We will discuss that matter at the end of the evidence that we hear today.

To reiterate the framework I outlined yesterday, we will concern ourselves with three amendments, numbers 2, 3 and 4 that were not accepted by the other place. Amendments 2 and 3 concerning the unnecessary death of an animal and Aboriginal practices, respectively, were rejected outright. Amendment 4, the colour of right provision, was amended by the House of Commons. As requested by the committee, the text of our proposed amendment has been placed aside the amendment put forth by the other place on one sheet of paper for easy comparison.

For the benefit of those who were not present yesterday, I will restate the three options that we have according to parliamentary practice and procedure.

For each of the three amendments we can accept the proposal made by the House, we can reject it by insisting opinion our original amendment or we can put forward some alternative wording to address our concerns with respect to a given section. This last option would be done with a view to reaching a compromise that we hope would cause the House of Commons to accept the amendment.

At our meeting yesterday, we agreed that we wished to hear from the minister to better understand the perspective of the other place. While the minister was unavailable, we are happy to welcome in his stead the Honourable Paul Macklin. With Mr. Macklin is Ms. Joanne Klineberg who has appeared before our committee on several occasions and needs no introduction. As well, we will hear from our counsel Mr. Mark Audcent and Mr. Michel Patrice.

I understand Mr. Macklin will proceed with a brief explanation of the perspective of the other place on the amendments proposed by the Senate. I will then open the floor to questions for a fulsome discussion with Mr. Macklin. We are under a great deal of pressure with respect to time and so I would ask Mr. Macklin to be as brief as possible. A number of senators want to ask specific questions pertaining to the amendments.

Mr. Macklin, please proceed.

The Honourable Paul Macklin, M.P., Parliamentary Secretary to the Minister of Justice: Honourable senators, I sincerely thank you for inviting me here today to talk about Bill C-10B and the amendments to the Criminal Code dealing with the cruelty to animals. Last week, as you are aware, my colleagues and I in the House considered the amendments made by you and your colleagues in the Senate. I know that you put in many hours of difficult and dedicated work to arrive at those amendments.

In that process of consideration, we also looked at your amendments. The amendments that we accepted completely satisfy the concerns of many of us who have continued concerns about negative impact of this proposed legislation on animal users such as hunters, farmers and animal researchers.

The addition of the defences in subsection 429(2) and the modification of the definition of "animal" alleviate all of the fears that were brought to our attention by those who could be affected by the bill. I can assure honourable senators that the bill, as it stands now, does have the support of the House. We greatly appreciate your fine work and contribution in helping to reassure Canadians that these amendments would not put their livelihoods at risk.

I have with me today several of my colleagues from the House of Commons who support the bill in its current form and who would also like to see it become law.

Without going further into detail, I think we should proceed with questions so that we are able to deal with your concerns.

Senator Beaudoin: We have to start with one of the five amendments. My concern is the question of colour of right. There is a certain disagreement and I want to know why the House proposes an amendment other than the one that was sent to the House of Commons.

Mr. Macklin: We take the position such that whether you look at 8(3) or 429(2), in both cases we are being superfluous. These defences apply in any event. This was brought home to us when we considered testimony, as I recall, by the Canadian Criminal Lawyers Association, who were asked about whether we needed to have those defences specifically identified in order to be effective defences for Bill C-10B.

Their response was that the only reason to include them would be to give further assurances to the individuals who are looking at the proposed legislation. From our perspective, whether we put in 8(3) or 429(2), in both cases it would be a way to give further assurances to those who would look at the bill.

Senator Beaudoin: We wanted to be sure that this would be included. The French version of this is "apparence de droit" which we think is a good thing to include, although justice officials have always said that it is not necessary. Justice officials use the argument that once you get rid of the question of property, then there is no need to have the rule of colour of right. Is that your reasoning?

Ms. Joanne Klineberg, Counsel, Criminal Law Policy, Department of Justice Canada: I am not sure that the department ever stated that colour of right is limited legally to property concepts, although that was the origin of it. As senators around this table have well pointed out, there is case law that supports the view that it can be a mistake of other kinds of law and not just about property rights. In the case law, it has evolved a little bit beyond just being related to property.

I do not think that particular view of colour of right will continue to apply because these offences are moving out of the part of the code that deals with property. Colour of right is generic; it is a common law defence; it covers a variety of different mistakes that could arise in respect of any kind of offence; and it will continue to have application to these offences where they are now, in the new Part 5.1.

Senator Beaudoin: That is why you said, "to the extent that it is relevant."

Ms. Klineberg: Yes, and also because the defences in section 429(2), which are written in that section, apply to sections 430 to 446 of the Criminal Code, which is all of Part 11 and includes offences such as mischief, arson and other offences of that nature. The defences in that provision have a meaning or application that differs, depending on the kind of offence indicated. Adding the words "to the extent that they are relevant," provides the intent to signal that, insofar as they are relevant to animal cruelty offences, they will continue to be relevant. Those are the offences for which the new provision will apply now.

Senator Andreychuk: Mr. Macklin, the current code contains a property section that includes the cruelty to animals provisions. We have taken that out and now common law defences are to apply. I find it rather curious when I hear from either the department or from the minister that this will be the interpretation. If you will permit me, I did sit as a judge and I took my responsibilities seriously. At that time, I always said: If everything stays the same, then I am bound by the previous case law. However, when you take a section and move it, you must have intended something different. If you slightly reword a defence, then you must mean something different. Even if the government quite fully puts its position forward to the benefit of the judges, the judges are still free to interpret as they see fit within the bounds of the law that they are obliged to interpret. Therefore, it is not just a comfort, and I do not think that the Criminal Lawyers Association said that it was.

I have often said it is a comfort because I think it would be to signal, very deeply, that we do not want the case law to be interrupted and that we want the colour of right to be there. If you start moving sections around, despite what the government intended, a natural consequence in the courts could be a different interpretation. One of those natural interpretations could be a narrowing of the defence or a different interpretation of the defence.

That is why, sir, with deference, what we were trying to do was to ensure that it would be as it was, that no one is changed in their position by virtue of the overall intent to make killing of animals unnecessarily a crime.

We knew that might jeopardize the defences so we worked for many months to come up with wording that would be even more certain than the House of Commons amendment or that of the previous ministry. We wanted to ensure that there would be no change, no expansion, no dilution, no narrowing of the defence. Your assurance that it is not intended is some comfort; however, it is not as complete as taking the Senate defence, because that would be a clear signal to the courts.

Mr. Macklin: Your perspective has been shared by the committee in the other place because it was that committee who inserted 8(3) on the basis that it felt it would be worthwhile for greater clarity to put some comfort in the bill itself.

Your "insecurity" concerning that issue is certainly something that was demonstrated in the other place. I suppose it comes down to a question of how we deal with it. You have brought forward a proposal. Frankly, we looked at your proposal and, we felt, subject to some change, for reasons that I believe are made known — if not, I am happy to do so — that we could modify the 429 defence and put it in. I am sure you are aware of the reverse onus problem that would develop. We are already of the opinion that there is a concern with the reverse onus under our Constitution. In fact, in almost every case where there is a reverse onus, the court is declaring it to be invalid.

As a result, the way your amendment is worded would — in our opinion — subject it to a court challenge almost immediately upon coming into force, based on the reverse onus section that you put in. Our concern was to try to deal with that and accept the fact that you wanted to use this preferential way of giving further assurance.

We had to look at this from the perspective of accepting the principle that you are looking for further assurances; but let us not walk into a position where we are simply asking for a court challenge in the post-Charter era. Let us say we would take the defences that were reflected in 429(2) rather than your wording of "no person shall be convicted of an offence under this Part where he" — that would be the accused — "proves that he acted with legal justification or excuse or with colour of right."

The purpose in us looking at that wording was to try to accept your principle, but rather than put ourselves in a position of some jeopardy, we felt it would be wiser to take the defences from that section and put them into our modified section.

Senator Andreychuk: I do not want to monopolize this debate. However, I think that while we raised the problem of the reverse onus, we satisfied ourselves that it was not — I thought that was the department's position — a reverse onus in the way you have described it, because it is for the Crown to establish the absence of the legal justification or excuse or colour of right.

Even if that is not your position, it is an evidentiary thing. That is basically the point. I have not seen the trend that the courts are not accepting reverse onus. I think there is in our law a basic principle that an accused is innocent until proven guilty. However, there has been use of reverse onus, justifiably, and it has withstood the Charter test. While we questioned it at the start, I think we were comfortable at the end that it was an appropriate use of reverse onus. I did not even believe where we ended up was a reverse onus.

Mr. Macklin: I would defer to Ms. Klineberg.

Ms. Klineberg: There is little doubt that the words "where he proves that" do indeed constitute a reverse onus. "Where he proves" requires the accused to prove on a balance of probabilities that a defence applies. Since a number of Charter cases have come down that have struck that kind of language as unconstitutional, the government has been in the habit of not including that kind of language. If you had the impression from our previous testimony that those words did not establish a reverse onus, that was probably a miscommunication, for which I would apologize.

Whether or not a reverse onus is unconstitutional will depend on the cases that decide it. The particular reverse onus in section 429(2) has been held by a court — I believe the gaming court — to be unconstitutional. However, where those words occur elsewhere in the code, each occasion of those words has to be looked at on its own merits. Prima facie, the words "where he proves that" would be a violation of the presumption of innocence under the Charter and the government would be given an opportunity to justify the violation of the presumption of innocence under section 1. I do not know that they are in the habit of doing that much any more.

Reverse onus has been held to be constitutional under section 16 of the Criminal Code — the mental disorder provisions — but that is quite a different case from normal, general, common law applicable defences such as colour of right, legal excuse. For instance, there is no reverse onus in the self-defence provisions or defence of property provisions. Mental disorder is a slightly different case, in which the government went to the effort of justifying that constitutional breach.

If I could move back to your previous point, Senator Andreychuk, you are persuasive in being concerned about whether or not existing case law will continue to be applied. I would argue that the current formulation that cross- references the defences in section 429(2) better achieves your objective than recreating the defences in a new clause 182.5. By cross-referencing section 429(2) I would submit that you send a much clearer indication to the courts that the case law under section 429(2) continues to apply because it is those very defences that you are saying are available. However, if you rewrite legal justification, excuse or colour of right in other sections of the code, then there is more of a question about whether case law under section 429(2) is carried with it or not. I would suggest that this way it is actually clearer, that all that old case law comes with.

Senator Andreychuk: I think our discussions yesterday clearly point out using words "as is relevant " are not as clear as the way that we did it.

Senator Joyal: It could be argued in court. Somebody would have to decide what is relevant and what is not relevant.

Senator Andreychuk: Somebody would have to decide what is relevant according to which test, et cetera.

Senator Beaudoin: That is very basic.

The Chairman: I want to recognize the presence of some of our colleagues from the House of Commons: Mr. Janko Peric, Mr. John Efford. I believe we have with us as well Mr. Paul Steckle, Ms. Rose-Mary Ur, and Mr. Andrew Telegdi.


Senator Smith: In respect of this colour of right issue, I do not have the transcript of Mr. Mosley's evidence before us, however, I recall, when there was some discussion about specifically referring to colour of right, that he thought it could be problematic. As there is a great body of jurisprudence that exists, if you start specifically identifying it in one statute or one particular thing, some people might leap to the conclusion that it no longer applies in other situations where it has not been specifically referenced. I would invite you to enlarge on that, if my recollection is correct, as to whether that is a relevant concern.

Mr. Macklin: It definitely is a concern because every time that you do something, as Senator Andreychuk suggested, the judge always asks the question, what message is being sent in this particular case? That is why the preference would be not to have those references in there, but rather to rely upon the application of section 8(3) in its general application throughout the code. That was the original thought and the original plan.

Again, this is where you get into a conflict of trying to balance the individual's concerns with the effect. There are two different questions at hand: what is the effect of sections 8(3) or 429(2), and what, in fact, do we see as the concerns expressed by those who would view this section? This particular piece of legislation in its many forms has been around for two Parliaments. Obviously, a great deal of consideration has gone into the process.

The concerns of those who are seeking defences have been a very high level of concern throughout the debate on this issue. Based on what you recommended to us and what we adopted, we seem to have arrived — at least within those groups that are communicating with us — at a level of comfort that is acceptable to them, particularly those in the farming, fishing and medical research areas. Obviously, that was of some significant concern.

Ms. Klineberg: I cannot add much more than what Mr. Macklin has suggested, but yes, it certainly was a consideration. From the start, we were concerned that the very existence of 429(2) led to the concern that some people had that if we take the words away, the defences do not apply anymore. The department's position all along had been that the defences are still available. Therefore, the amendment that was made in the House of Commons cross- references the defences that are already there and avoids recreating another set of them. We would hope that will do something to alleviate the demand to do that the next time and the next time, and continue to give rise to the concern that if the words are not there the individual does not have a defence. We do not believe that to be true.

The Chairman: Mr. Macklin, I want to move on to one of the other amendments. Perhaps I could start by asking a question; and then any other senator who wishes to take part in the discussion can feel free to jump in. Senator Grafstein, did you want to add something first?

Senator Grafstein: It is not on this point; it is on the general issue. This just arose out of Mr. Macklin's last answer. I am not a member of this committee and I have just been apprised of this. Therefore, I may not be up to speed on the technical ramifications. You said that the farming, fishing and medical communities are satisfied. Are the people involved in ritual slaughters, the clerics from the Muslim community and the rabbis from the Jewish community satisfied and are the Aboriginals satisfied?

Mr. Macklin: The minister did address the Canadian Jewish Congress a little over a week ago. In discussions there, he felt he was able to assure the members of the Jewish community that the ritual processes would be permitted within the confines the bill as proposed, and that there would not be an issue. To my knowledge, no one has come back to suggest the contrary. While I have not specifically canvassed — and I do not know if the department has — I am not aware of anyone expressing concern to us from any of those groups that the bill, in its present form, will cause difficulty in that regard.

The Chairman: This perhaps leads to the question I was going to ask about 182.2(1)(c). Justice officials told us when we began our inquiry that this bill did not create any new law. In fact, its intent and purpose was to increase the penalties for those people who were cruel to animals, which is a policy and a philosophy that this committee wholly endorses and supports. However, when we look at 182.2(1)(c), we see that the bill does create a new law. It reads: "Every one commits an offence who wilfully or recklessly kills an animal without lawful excuse." That is not in the old bill.

There were two provisions for killing animals in the old bill — one for animals kept for commercial purposes and one for domestic animals. This creates a new offence for killing wild animals. Justice officials told us that once an individual committed this offence, he or she could then rely on the second part of the phrase that said you could do it with a lawful excuse.

In ordinary circumstances, we would tend to think that, for example, if a hunter in Newfoundland was out shooting moose — and doing it lawfully with a proper permit, in a proper area and at the proper time of the year — that would be a lawful excuse. However, we raised with Justice officials the prospect of R. v. Jorgensen, in which Justice Sopinka said that the use of a provincial permit is not valid when it comes to breaching a federal statute such as the Criminal Code.

That is why we explored in great detail with department officials why that section was in there. We were told the purpose of the section was to include the unnecessary killing of an animal, which they did not feel was covered in 182.2(1)(a), which says, "...caused unnecessary pain, suffering or injury to an animal." Some of us feel the ultimate injury would be the death of the animal and it is covered there. However, to appease Justice officials — and not to create new law — we proposed an amendment that would add "unnecessary death" as well, and thereby import all of the defences set out in the Menard case by Justice Lamer.

Now we feel that, without any real reason, the Commons has just completely and totally rejected that reasoning.

Mr. Macklin: To the best of my understanding, there have been two defences involved. One is causing unnecessary pain and the other is killing without lawful excuse. I believe those two have been in existence and that, in fact, we are just codifying them in this fashion. As to what the department said before, I would defer to Ms. Klineberg to respond to that question.

The Chairman: To clarify, Mr. Macklin, no one takes issue with the fact that you are not permitted to a kill an animal in a vicious or mean or cruel fashion. That is not the issue. The issue here is that, if people who are going about their ordinary normal business of killing animals in ways that are permissible, such as hunting, they could find themselves in trouble if they wave their provincial permit as their lawful excuse. Justice department officials told us as well not to worry about that because it is a common law right to hunt.

However, if we codify the offence and call it now a criminal offence in the Criminal Code, I would not be too comfortable relying on common law defence for something that has now been codified.

Mr. Macklin: I will let Ms. Klineberg respond for the department.

Senator Adams: Ms. Klineberg has been here five or six times as a witness. It is like listening to a broken record with the officials who were here. She is a lawyer, she has been telling us the same thing. We are not going anywhere. We heard that thing is on the records and everything. I think the only thing we should do right now is let them tell us why.

The Chairman: Mr. Macklin, I appreciate the fact that for some technical matters you will definitely need to rely on officials. I have no problem with that and I do not think any senators do. To address Senator Adams' problem, I will ask you a specific question about how you dealt with this in the House of Commons.

One of the points you made with respect to this amendment was that the use of the term "unnecessary death" was illogical and would lead to confusion. Perhaps you would like to comment on that?

Mr. Macklin: Most of the groups of interest have been trying to prevent us from making amendments that change, from their perspective, the way in which they have felt comfortable in the past. They find that there has been judicial interpretation of the various phrases and words.

With regard to this particular section and the reference to "unnecessary," unnecessary has been used in reference to pain. It means "no more pain than necessary," taking into account the objective sought. That is generally how it has been interpreted.

Once you take a term within that section and recreate it descriptively, obviously it is open for new interpretation, or some transference of the original interpretation relating to pain. The transference in this case simply does not work in terms of "unnecessary" pain because the only relevant question is whether there was a good reason for killing. We felt that if you wanted to carry as much of the meaning as possible in that section, the transference of "unnecessary," did not carry it. It is not necessarily something that would follow in a natural course of interpretation.

The Chairman: The problem that we had, Mr. Macklin, is that the word "unnecessary" actually imports the defences that one would normally rely on from the Menard case, as set out by Mr. Justice Lamer. The word "unnecessary "was not put in there out of the blue, it was put in specifically for that purpose.

I also wanted to ask was how do you feel the Jorgensen decision, granted it was a case regarding distribution of pornography where a retailer had permission from the Province of Ontario to distribute it. He was prosecuted and a federal court judge said he could not use a provincial licence to do that because it breached a federal code.

Mr. Macklin: In this case, I would like to refer to Ms. Klineberg for the response because of its technical nature and the fact that the argument was made that it is a departmental issue as represented to you.

The Chairman: Have you given any thought to whether it was necessary to include a whole new defence of killing an animal, and why it is there?

Our problem was this new offence attached with it: If you go out and kill a wild animal, you have committed a crime. If anyone charges you, you can go the next step and say you had a lawful excuse. Would it not have been covered under section 182(1)(a), where it says you cannot cause unnecessary injury? Would not the unnecessary death of an animal be the ultimate injury?

Mr. Macklin: It would be the ultimate injury, of course. Someone in this particular case could kill an animal without any pain that is beyond what was necessary. I think it creates a separate and distinct offence and does not necessarily get us into the question of trying to determine pain application in this case — in other words, trying to find gradients of pain. It is rather clear: If you kill the animal, do it in the most humane way possible and have a lawful excuse, you do not have to go through the process of dealing with the evidence required for section 182.2(1)(b).

The Chairman: Before we go to Senator Cools perhaps Ms. Klineberg can comment on the issue of Jorgensen.

Ms. Klineberg: You are absolutely right in your understanding of Jorgensen that the piece of paper that comes from the province is not, in itself, a legal excuse. The fact that the piece of paper from the province is not a legal excuse does not mean that there is no legal excuse. All Jorgensen stood for was that that piece of paper, in and of itself, was not a "get out of jail free card."

However, there is no absolutely no bar to an accused person raising anything else they might like to argue as a legal excuse. A common law right to hunt goes back eons.

The Chairman: We have already canvassed that. If you codify the offence how can you rely on a common law defence?

Ms. Klineberg: It would take a clear, stated intent from Parliament to codify that hunting is not a lawful activity.

The Chairman: We just said it here, killing an animal is an offence.

Ms. Klineberg: Killing an animal without a lawful excuse.

The Chairman: The lawful excuse does not work because of Jorgensen, but then you rely on your common law right, but you have codified the offence and now you want to rely on a common law defence?

Ms. Klineberg: There is an offence in the Criminal Code now that says "wilfully" killing cattle is an offence. That takes place every day in hundreds of farms across the country. There are ways of bringing in common law defences, understandings of what excuses are for doing something that looks on its face like a crime. Wilfully killing cattle, in itself, is not the end of story because you have a legal justification to do it.

In the same way, killing a wild animal is not the end of story. Parliament has gone the extra distance of putting, "without legal excuse" in the offence provision. It colours what the offence is. It is not, straight-out, a codification of a crime of killing animals, period, end of story.

The killing is qualified by "without a legal excuse" and I would submit that is not the same thing as codifying killing wild animals, as you are suggesting. It is nuanced and builds on the same type of wording in the Criminal Code now. Killing animals kept for a lawful purpose without a lawful excuse. That lawful excuse covers euthanasia; it covers the terminating of research animals.

The Chairman: I do not think we have heard anything different from what you said before, Ms. Klineberg. I guess we will have to agree to disagree on that one.

Senator Andreychuk: I continue to hear that we have a new offence and it has lawful excuse, and that that is not new because we have had lawful excuse in the definition. Once you put in a new offence with those words, you cannot naturally draw that lawful excuse will have the same meaning.

That is the point that we continue not to seem to get answered. It seems to be dismissed that it could never have the interpretation that we are putting to it. Well, with respect, that is the department's opinion. I have no idea why the House of Commons bought that opinion, because it is not the definitive answer in court. One would hope, but one cannot rely on it. What we were doing was greater certainty.

Senator Cools: I would like to welcome Mr. Macklin here. It is very unusual for me to have Mr. Macklin before a committee. I welcome him and say it is always a pleasure to have fellow Ontarians at committee. Many members will not know, but Mr. Macklin replaced Christine Stewart as a member after she retired from big "P" politics.

I would also like to that on this committee we feel a little deprived of parliamentary and ministerial debate. The minister has not had a fulsome and lengthy debate with us on this matter. There are huge numbers of questions that we have wanted answered. I thought it was unfortunate that the minister did not come previously. What is happening here, perhaps, is that you may be getting the brunt of some of those unanswered questions. You could say we have been pining or longing for an exchange with a minister.

To add to that, in respect of what Senator Adams had to say a few moments ago, we have heard from the department's lawyers quite exhaustively on several occasions.

An additional fact to that is that today, this meeting, however, is not about the department's position. Mr. Macklin, you were asked to appear here not so much in your ministerial capacity as in your House of Commons capacity, because what is before us is a decision of the House of Commons, a message from the House of Commons. In actual fact, chairman, Ms. Klineberg has no constitutional authority here to speak for the mind of the House of Commons. She is free to advise —

The Chairman: Senator Cools, if I may, the committee has every right, constitutionally and otherwise, to bring whatever witnesses it wants before it. Mr. Macklin indicated to me at the beginning of the meeting, before the meeting started, that he would have Ms. Klineberg to assist him with some of the more technical details of the matter. I do not think you are going anywhere with this. Do you have a question?

Senator Cools: I was midstream of a sentence, chairman. I was saying that the constitutional position of the appearance today is different from previous ones because of what we are trying to glean here. We know very well the position of the department and the position of the minister. What we are trying to glean here is the nature of the disagreement between the House of Commons and us. That is the reference that is before this particular committee. I would just ask if we can speak in that vein, because any insights that you can give to us are helpful.

I am sure Mr. Macklin knows this bill has been burdened with all manner of difficulty for a long time. I have no doubt that he is interested in relieving some of those difficulties.

In respect of the questions that our chairman has raised in relation to amendment no. 2, we had quite a substantial debate in this place about it. What we were trying to do in that amendment — which the House of Commons rejected, and which is what I am trying to discover — was to mitigate this new provision that essentially was now creating a blanket prohibition against killing animals. That is totally new. That is what the chairman was just saying when he referred to this as a "new law and a new provision."

If you had a chance to look at the testimony, we had quite a lengthy exchange on these matters with Mr. Mosley. At the time, we made reference to the report of the Law Reform Commission, which recommended against a blanket prohibition against killing animals. There was quite a lengthy exchange in that committee, because our concern was that this new provision is part of a new conceptual framework and a new legal framework and it also a new structure in the Criminal Code. It is not helpful, I think, or sufficient to say that that major change could occur and the old system of the common law with the historical rights of hunting and enjoying the bounties of nature would stay constant. It is not possible that everything around the situation can change and that one element remains static.

This is such a small amendment — killing an animal without lawful excuse. There is no doubt in my mind that there are numerous people whose lifestyles will be affected by that. As the conceptual framework around this bill has indicated, it is the new legal landscape where a new species of beings called "animals" are being created in a new place in the Criminal Code. In our wisdom, we thought that to delete that particular line would help protect the numerous persons about whom we were concerned.

I think we share your concerns, Mr. Macklin, that we have moved into a different and an improved era in terms of treatment of animals. However, one would not want to see a farmer who has had an epidemic of rabbits on his property and who set out to cull them be charged because for that reason.

Mr. Macklin, you must be mindful that we have voted on many laws. I have no doubt about the new culture that is attempting to emerge in this country where every single gun is banned and where hunting is no longer a socially acceptable activity and so on. We hear this a lot here.

Also, Mr. Macklin, I made it my business to read some of the propaganda around the creation of this bill and what has been said —

The Chairman: Excuse me, Senator Cools. In the interests of time — and we will come back to that if you want — can we get to the question?

Senator Cools: My question is, what was in the mind of the members of the House of Commons when they chose to reject that particular amendment that we made in terms of removing the blanket prohibition? We wanted to protect — for both Aboriginals and ordinary non-Aboriginals — those ancient historical rights to enjoy the bounty of nature, as Mr. Justice Lamer laid out in Menard. That was in the minds of the committee members and the Senate when it adopted our proposition.

Mr. Macklin: Thank you, senator. First, I do not believe that all guns are banned or that we are in that position. I truly hope not.

Senator Cools: Not yet.

Mr. Macklin: I would like to believe not. With respect to reflecting on your comments, clearly we are looking forward to a day when we do not have incidents such as occurred in my particular riding, which was one of the prompting factors to get this back on the program. A young man, in a village called Bewdley, decided to drag a dog behind his truck and wore the pads off the feet of that dog. It was a terrible incident.

All of us are here trying to go forward on the substantive issue: How do we deal with those who would mistreat animals? I understand that you want to ensure — and I think we all want to ensure — that those who deal with animals in lawful ways can pursue dealing with their animals. In those processes, they have to deal with the death of those animals. We want to make it clear as to how that can happen. We are trying, of course, to define a humane way of dealing with that. If the process being undertaken is not humane, obviously under section 182.2(1)(b) consideration will be given to prosecution.

If you are trying to capture the feeling and the flavour of the action taken by the other place, you should know that members there are of the belief that, within this country, we have lawful ways of dealing with all of the accepted professional and industrial practices that we have. Those practices also form a changing target. In other words, science improves; methods improve. I think back to my days on the farm. Our methods for dehorning and doing certain other functions on the farm have changed in some ways changed over time with the advent of new mechanisms and anaesthetics, et cetera.

As we look through the question, we must define the limits that will be placed and we must clearly define the other acts that one can perform. That is, the lawful excuses must be set out. Can both of our Houses ever establish definitively something that the courts will only interpret in one way? I suggest is that reasonable people will differ. We will never have an absolute answer to satisfy everyone. Within the House, we are of the belief that lawful excuse will include all of the normal processes that would have historically been protected under common law defences.

We believe that lawful excuse is basic to our Criminal Code and it follows logically that it should apply to these sections. It is not unreasonable to go further and insert a clause to reflect that belief. That is why we, too, and the committee in the other place, chose to find some means of bringing that forward.

We always try to find a balance. In going forward, we want to protect as much of the past as we can. Yet, we want to be as clear as we can. As part of the process, to some extent it was good to see the clarity the Senate amendment brought to the definition of "animal." You brought clarity there; there is no question about that. In the other place, of course, they looked at an expanded version to cover future changes in science and the understanding of animals. However, for greater certainty, you made a great point, as far as I am concerned, with respect to the definition of "animal." Both sides are trying to ascertain that historic defences are available.

I have represented as well as one can the position of the House and members' feelings. In other words, there is historical lawful excuse. How should the law express that? It is expressed by incorporating a defence, whether it is section 8(3) or 429(2). Section 8(3) was thought to be broader by the House, but it is up to each one's interpretation.

That is the general feeling from the House perspective. We tried as much as possible to keep things simple and clear. As we know, every time we change, it is difficult to maintain that.

Senator Joyal: In your discussion with your colleagues in the House, did you take into account the report of the Law Commission of Canada on the specific amendments to the Criminal Code? This commission clearly states that it does not, for instance, criminalize the killing of animals because any such message would be thoroughly diluted by all the exceptions to it, would appear hypocritical in theory and would work unfairly in practice. Instead, it focuses on the central idea of unnecessary cruelty and aims not so much to protect and preserve animal life but rather to ensure its humane treatment.

The Law Commission of Canada — and we have been influenced by them — thought that the way to protect animals could be achieved without creating the offence that we have now in proposed amended section. That opinion had an influence on our thinking; there is no doubt about that and for obvious reasons. The Law Commission of Canada has some bearing on issues in the Criminal Code.

Mr. Macklin: I am not aware of any witnesses who came forward in our place — and I am not sure if I have canvassed every possibility in your place — to suggest that the section itself should be removed. I do not recall that happening. We obviously have the right to consider and to debate — that is what this place is all about. However, the reality is that it was never raised as an issue, to my knowledge, through the witnesses. We gather a lot from our witnesses. We rely upon them to have a critical eye when it comes to their areas of concern.

Perhaps the answer is in the simplicity of what we are stating here. People can find some comfort in being able to look at "lawful excuse." They will know what is lawful, in a general sense, when they go through the process of how one kills an animal. They have a sense of what that is. In other words, what are we trying to capture within these amendments and this bill? We are trying to capture a sense of clarity for those who would rely upon it. The bill should not deal only with negativity. Most people would like to see, from a positive perspective, a concept that would accept their traditional practices. Subclause (c) assists those people.

Many people are confused as we work our way through extremely tortuous legal wording that we — those of us who have gone through the legal process — might find acceptable. I am not sure that it is the only answer that should apply when we do legislation. Those who have to deal with it on a day-to-day basis want some comfort. The clarity and comfort that that section gives in its current form is helpful.

The Chairman: One of the problems the committee had evolved around the decision in R v Holmes with Justice Dickson of the Supreme Court of Canada. He said that the phrase "without lawful excuse," in most cases, is just a representation of the ordinary common law defences of mistaken fact or duress. In fact, in the Holmes case, the decision was split as to whether the phrase meant anything at all. That created grave concern for senators when we talked about using it as a defence.

Senator Grafstein: After hearing Mr. Macklin on the question of the religious practices, I tabled with him a memorandum — a copy of which I have given to you, Mr. Chairman — that said that the Canadian Jewish Congress is concerned with this legislation.

I have read their memorandum and it has forced me to do some quick homework because we have not had adequate time since the debate about these amendments arose to reflect more deeply. I am taking this on the run and you can correct me if I am wrong.

Here is my concern regarding lawful excuse as it applies to religious practices. A section of the Charter guarantees freedom of conscience and religious worship. If you take a look at Martin's Annual Criminal Code on that, there is a very telling paragraph on section 2. It reads:

Not every effect of legislation on religious beliefs or practices is offensive to the guarantee provided under section 2(a). That paragraph does not require that the legislature refrain from imposing any burdens on the practice of religion.

Martin refers to R v. Jones, 1986. I have not had a chance to see if this applies in these circumstances. However, I want to raise the principles.

In the earlier bill there was a statement by the then Minister of Justice, the Honourable Anne McLellan, that "the proposed legislation at that time was not intended to have any effect or negative ramifications for religious practices in Canada." I am quoting from the memorandum that I received yesterday from the Canadian Jewish Congress. My mind forced me back into the question of the colour of right. Obviously, there is some power on behalf of Parliament to restrict the exercise of freedom of worship as it applies. The extent of that is the question.

Does colour of right give an absolute defence assuming a Muslim cleric or a ritual slaughterer provides in the normal course? Martin's Annual Criminal Code goes to the question of intent on section 429 and colour of right states, "While the belief does not have to be reasonable, the reasonableness of the belief is a factor in determining if there is an honest belief." It is the test of reasonableness. Then it goes on to say, "It is not sufficient, however, that the accused have a moral belief in a colour of right." It then defines colour of right. At the end of the day, a rabbi who provides ritual slaughter for ritual purposes has a moral belief that this practice is appropriate as it has been millennia. Under the interpretation of colour of right, the morality is not sufficient even in the defence of colour of right.

Hence, I assume, that there is some concern about this by those who practise their faith in this particular fashion. They then find themselves in a position with the possibility that animal rights activists — who can take extreme positions — might bring a proceeding. These people who have been practising their faith in this way for hundreds, if not thousands, of years could be subject to a prosecution with the colour of right that may not act as a defence.

I find it troublesome that all of a sudden, citizens who have conducted their practice as part of their lifestyle and traditional rights, including the Aboriginal community, could be in trouble under the Criminal Code. I do not like using the words "minority rights." It is part of their Aboriginal rights. In effect, these people will find themselves with the possible threat of criminal prosecution having to go to court to defend their practice.

The House had great deliberation about this — and I say this kindly. How can we give solace to practitioners of certain faith that their faith will not be interfered with by the courts?

Mr. Macklin: First, we have a federal law that defines ritual slaughter. It is through the humane slaughter regulation.

Senator Grafstein: That is a regulation, is it not?

Mr. Macklin: Yes. It is a permitted law within our country that defines the fact that ritual slaughter can happen. In fact, it is not based only on morality, but on law. If you combine the law with the protections of section 2 of the Charter, you have a broad range of defence and protection for that. I believe that those who are engaged in any sort of activity will always seemingly have some concern because in today's world, litigation seems to be one of the greatest concerns that we have from time to time, broadly speaking.

In fairness, we cannot deliver guarantees. If you can accept the fact that we have some law — and it is not simply based on religious practices historically — that supports it, then, yes, they are regulations. In my opinion, that is law. We have section 2 of the Charter. I believe that there is reasonable protection for those who would participate in ritual practices.

Senator Grafstein: One of the suggestions made in the memorandum is that in order to provide greater certainty that the law will not be abused. I take your statement as being a valid one. It is not intended, either in law or in practice, to pursue those people who are practising their religious beliefs by ritual slaughter, both those of the Muslim and Jewish faith. I take that as being the intent in the clear statement from the previous minister.

The suggestion made by the congress in this memorandum was to obviate even the scintilla of concern to satisfy themselves that the minister would make a statement in the House to that effect — which he has not done, I believe. Furthermore, effectively the minister would not allow a prosecution; that consent would be required for the Attorney General to force such a prosecution; and that the Attorney General would not exercise his consent to do so. Therefore, it acts as a complete prohibition against vexatious proceedings.

Would that not be a salutary means of satisfying the faith communities that their historic practices would not be brought into disrepute in front of the criminal courts?

Mr. Macklin: It is my understanding that the minister is in the process of attempting to make this statement in the House. He will be making that statement within the House. The bill left the House and he has to find a way to make that statement in a way that is appropriate. I am advised, that he will be doing so. I hope that provides comfort.

Senator Watt: Along the same lines that Senator Grafstein highlighted, but less in respect of the religious aspect, my question is more based on the livelihoods of the people. By "livelihood of the people," I mean the day-to-day lives of the hunters. My concern for them is not only because they are hunters but also because they have no other ways and means of feeding their families. I am talking about Aboriginal people.

They use their traditional equipment for different purposes and reasons. Many of the traditional tools utilized by Aboriginal people — especially the Inuit in the far north — are for conservation purposes so that time, energy, and wildlife are not wasted. I believe that the way in which we practice our traditional activities is not sufficiently covered by law in terms of recognition of those traditional activities — perhaps even to the point that the lawmakers do not understood them well.

For that reason, we made a sincere attempt to move an amendment such that an Aboriginal person, if charged, would at least have a reasonable defence to rely on. We do not have many provisions in law that are clearly made for Aboriginal people to protect themselves, although we do have a specific agreement with the Government of Canada and with the relevant province.

We have only that agreement and section 35 of the Constitution. Those are our only "Bibles." We have nothing else. This proposed legislation greatly threatens the Aboriginal hunters who are trying to earn a living to feed their families. Automatically it would be perceived that the hunter is being cruel to the animal, although that is not his intent. Just by the use of traditional tools, his actions could be interpreted that way.

If the bill as it stands becomes law, enforcement and regulations will be implemented in the communities. The law could also be used by animal rights groups, who have effected us tremendously in our territories — our Inuit land. As a matter of fact, throughout the Arctic, there was a massive genocide and this could happen again.

This bill being formulated by the government will no doubt be used for that purpose because they have a lack of understanding or because they do not care. What protection will we have after you have removed the amendment that we tried to put forward? The Department of Justice made it absolutely clear that they do not want us to proceed in the direction of a two-tiered system. That would not be possible and we could not make a separate, tailor-made law for the north. The north is different from the south in the way that people live and work. The issue of this bill is worrisome.

What kind of assurance would you give me now that the amendment has been removed? Is there a law that I do not know about that could protect us?

Mr. Macklin: Thank you, senator. I am sensitive to the issue. I am also concerned about the amendment and we could take it two ways. One of our thoughts was whether to set up a different standard for Aboriginals through this process because the bill could be interpreted that way. We felt that there was not a suggestion that you wanted to be treated differently in terms of humaneness, foods for sustenance and ritual ceremonies. As such, it was our belief that that was protected in terms of, as you say, the necessities of life and ceremonies. In other areas, such as I just mentioned to Senator Grafstein, regulations under humane slaughter, which is federal law, provide that one may participate in that process and it is lawful.

Beyond that, our House is generally of the belief that with section 35 there would be a good defence available and that you would have good grounds to go forward. In respect of private prosecutions, amendments have been in the House over the last year under section 15(a), which, if I recall correctly, require someone bringing forward a private prosecution to satisfy the Attorney General, or his or her representative, that they had an appropriate case that was neither frivolous nor vexatious.

We are pleased that that area has formed part of our law because it provides some protection that did not exist before. Many people are concerned about private groups bringing forward processes that most might believe were single-minded and not necessarily in the best interests of this country. That exists with a goal that we are protecting our people, generally, from that so-called frivolous, vexatious prosecution.

Considering section 35, the fact that we have a federal law on the ritual and ceremonial side, and that we have some protection on private prosecutions, there is some room for comfort in your position.

Senator Watt: If I understand you correctly, you do agree with me and with the amendment, but you do not want to put it into the law. Is that what you are saying?

Mr. Macklin: I am not saying I agree with the amendment because I think it tends, from our perspective in the other place, to make it appear that, as a People, you might be subjecting yourself to a different standard from that being set out in the amendments to the bill. That is a concern.

Senator Watt: Is it your opinion that, because we have an agreement and we have the Constitution, this is better than what we are trying to propose? Would you consider it a total exemption in that case?

Mr. Macklin: A total exemption in which case?

Senator Watt: Not dealing with the amendment in the way we did, but having an agreement and having a section 35 that described our rights that exist under the Constitution. Are you saying that we are already exempt, therefore why should we try to put ourselves into the process?

Mr. Macklin: I am not suggesting you are exempt.

Senator Watt: I am trying to understand that.

Mr. Macklin: I am stating that the existing protections are just that. You would have the same standard of application with respect to this bill if you go out and wilfully or inhumanely kill an animal; you would be as liable as anyone else.

However, in terms your basic needs, you are protected through section 35. You have protection for ceremonial and ritual purposes through the regulations there, and you have an agreement as well. I am suggesting that, in terms of being able to carry on your day-to-day lawful practices, I believe the government has in place as much protection as it can give at this point, subject to the ultimate compliance with the principles that are endowed in this particular piece of legislation.

I do not think there is anything that would exempt in any way, shape or form Aboriginal peoples from the humane disposition of animals that you are hunting or fishing. You are as clearly obligated under this statute — if it becomes a statute — as others. However, you have the protections generally out there to pursue in a lawful fashion — if you wish, with lawful excuse — all of your other practices that you would normally pursue, including your livelihood.

Senator Nolin: I have one question on 429(2). The House of Commons accepts the principle of our amendment on the colour of right, but you do not agree on how we are doing it.

Mr. Macklin: That is correct.

Senator Nolin: Tell me why you have refused to open 429 to include the new sections in the bill? Clause 429 now reads as follows: "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." In your proposed amendment, why not amend 429(2) to include the new sections?

Mr. Macklin: I suppose that is an option, but the fact was that we felt that just importing all of the defences through this section, as we propose, meets all of those concerns.

Senator Nolin: Are you saying it is a cross-reference?

Mr. Macklin: Yes.

Senator Nolin: You are suggesting to us that we will do only one side and it implies that it is crossed — it is not needed.

Mr. Macklin: That refers to a series of sections. We are saying that we will import all of the defences. In our wording, it is the defences — we are not specifically referring to sections. The defences set out in that section would apply to the extent that they are relevant — and that is the question of relevance — in respect of proceedings for an offence under this part. The present position, which we spoke of earlier, was if we took it literally, it was likely unconstitutional in its present format — in other words, with the reverse onus section.

Senator Nolin: Therefore, section 429 is unconstitutional?

Mr. Macklin: There is a case that suggests it is so.

Senator Nolin: There is another case that suggests it is not so. We felt that it was clearer to include the defence of colour of right in the new section and not to refer to a defence that is only referred to in part 11 of the code. We wanted to make it a new defence, with the same wording, for the new section we are creating with the bill. That is exactly the intent we had.

There are two lines of thoughts on those defences of common law. They need or do not need to be included in the infraction. We have the Manitoba Court of Appeal, or the Supreme Court of Canada. It was up to us to decide what we wanted. We decided to play it safe and include the defence in the new section.

I understand you are accepting the principle to reintroduce the defence. Therefore, my question is why not do it perfectly and also include a cross-reference?

Mr. Macklin: Our position was that we thought we were doing it in a way that was as close to perfect as we could by importing all of the defences. We obviously have a difference of opinion.

Senator Nolin: We will discuss that among ourselves.

The Chairman: I want to point out one small matter, because Senator Andreychuk raised this earlier. The case I believe you are referring to, Mr. Macklin, was R. v. Gamey, I think it was around 1993 in the Manitoba court.

Senator Nolin: There was also R. v. Jones in the Supreme Court.

The Chairman: There was some suggestion that the "he must" part of that could be read as unconstitutional. However, the judge read down the version of it and said it was just an evidentiary burden placed on the accused. The Crown had to prove its case and the evidentiary burden was to show they had a licence. It was not really unconstitutional per se.

Mr. Macklin: Shades of grey.

Senator Nolin: That is why what we are doing is more than fun, it is important. When that law will become the law of the land, it is open for the public to act accordingly. We want everyone, including those who are in charge of the application of the law, to respect and understand the law and to make it respectable for everyone. That is why we were trying to make it perfect.

Mr. Macklin: That was why we did not want to import something that had even a tinge of unconstitutionality about it.

Senator Joyal: I would like to return to amendment number 3 and the message that you sent us as a stated. First, however, could you give us a brief recollection of when the House debated this amendment? What were the views expressed by various parties in relation to amendment number 3?

Mr. Macklin: I do not know that I can specifically address that in proper deference to the parties who came forward, but in terms of its ultimate disposition, it had substantial support in the house — in other words, a broad party support. I do not know that I could convey individuals' views right now.

Senator Joyal: I went through the Hansard of the House and I think Senator Jaffer brought it to my attention yesterday. As much as I can understand, the Alliance members spoke against amendment number 3, the NDP did not mention it specifically, they just condemned outright the Senate and asked for its abolition. Two Liberals MPs supported the amendments, two representatives of the Progressive Conservative Party supported the amendments, and the Bloc supported the amendments.

I am trying to understand the views of the House and to do so we must look into what was said. Did I miss something in the first debates of the bill? Did the House canvass this issue of Aboriginal people and how the bill would affect them?

Mr. Macklin: To my recollection, it may well have been debated, but it was not debated at length.

Senator Joyal: Do you remember if there were witnesses representing Aboriginal people who were invited to testify?

Mr. Macklin: Unfortunately, some of that was before my time. Therefore, I do not know that I could properly and fully comment on that.

Senator Joyal: That is a fair answer. I am trying to understand what kind of interest there has been in the other place to this point. As the honourable parliamentary secretary to the Minister of Justice will certainly know, there has been very clear interpretation by the Supreme Court of Canada, as to what must be the access of the Government of Canada — and Parliament of Canada generally too — when proposed legislation might infringe on the constitutional rights of the Aboriginal people.

I am trying to understand if due process according to the Sparrow case has been followed in the other place. If we are to accept your views that we are going to set aside this amendment protecting the Aboriginal people, we would certainly want to be convinced that, in dealing with this issue the House has met the standards that the Sparrow decision of 1990 clearly established and that the government has recognized itself in an internal memorandum of 1995.

I want to tell you that you have to appoint the onus to rebut our approach and the way we discussed this by convincing us that you went through a similar process and, at the end, you concluded differently.

Mr. Macklin: Unfortunately, some of that process occurred before I was in a position to be a participant and, therefore, I do not necessarily have all of that knowledge to respond to you properly.

Senator Joyal: I do not want to insist, nor do I want to embarrass you. However, we questioned Mr. Mosley on this. We wanted a comparison with the procedure that the department followed, the procedure that the House has taken in order to meet our constitutional obligation in relation to the Sparrow case.

On my second point, I listened carefully to your answer to Senator Watt. You state that Aboriginal people have the right to fish and hunt and that they are no more threatened with legal action than any other Canadian and that if they treat animals in a humane and careful manner, they should not be subject to any prosecution. Therefore, they should not be scared or afraid of this legislation. Then you move on by saying if they ever felt aggrieved they could go to court and wave section 35. I have a problem with that because of a recent judgment of the Supreme Court of Canada — the case last December. I will not quote that decision because there is discussion on this judgment for reasons that my colleagues might know around the table.

However, I will go back to an earlier decision, which was a unanimous decision of the Court of Appeal of Ontario, Justice McMurtry, Justice Abella and Justice Sharpe in February 2001. Justice Sharpe delivered the decision on behalf of the majority. I would like to refer to paragraphs 77 and 79 of the judgment, which interpreted section 35 of the Constitution:

[77] As with all constitutional rights, the interpretation of aboriginal rights calls for a purposive approach. Two fundamental purposes for the constitutional protection of aboriginal rights have been identified. The first purpose is the recognition and respect for the prior occupation of the land by the distinctive aboriginal societies.

[79] The second fundamental underlying purpose of s. 35... is that the provision provides, "the constitutional framework through which the fact that aboriginals live on the land in distinctive societies, with their own practices, traditions and culture, is acknowledged and reconciled with the sovereignty of the Crown.

I think each word means something here. Those are the two purposes of section 35, as identified in the latest applicable judgment to the interpretation of this section.

According to you, as long as Aboriginal people are doing the same as the majority of Canadians they have nothing to fear. If they were ever accused of cruelty to animals in their fishing or hunting practices, they would just have to wave section 35 in court and prove their constitutional rights.

Am I stretching it?

Mr. Macklin: I am afraid I obviously misstated myself. I did not wish to leave that impression. I understood the concern expressed in regard to the ability to carry on with activities generally that would constitute part of the normal lifestyle of the Aboriginal people. That in itself will not be a defence to a cruelty allegation. It is rather, a commentary on the question: "Where you find a lawful reason for being able to go out and do what you do as a people? In that particular case, part of the argument that you would bring forward is that Aboriginal people have always been able to hunt and fish and that is your historical lawful process that you have pursued. As a nation, we recognize that process.

I am simply suggesting that going to a lawful excuse, you can at least go back and develop your argument on the basis that this is the law of our people. We have had this process during our entire capacity as a nation. We have always pursued not only ritual and food, but also other rights as well. I was addressing the concept of what might constitute a lawful excuse and a defence, but not simply just waving section 35 as an absolute defence. That would not be so.

Senator Joyal: In other words, you are telling us that when the Aboriginal people are hunting and fishing, they are not submitted to a different test than the non-Aboriginal people. Is that correct?

Mr. Macklin: In terms of this particular amendment, we are saying that they would have the same defences that were available to anyone. I am simply suggesting that the breadth of defences in an Aboriginal case might be slightly different from the defences someone else might have. However, it would relate to their historical practices.

The humane process has to be carried out. There is not a different standard for anyone, but rather it goes to defences. You have to be able to raise an appropriate defence. We are using that expression, "lawful excuse," to provide that defence. That is where that would be brought forward, and that is where you would advance your case in defence of whatever activity you were carrying out. It does not matter, from my perspective, whether it was as a farmer or as an Aboriginal hunter. The principle is that you have to be able to bring forward a lawful excuse that has been there historically.

Senator Joyal: Then you do not recognize that Aboriginal people's hunting and fishing practices are constitutionally protected, per se, and that we have to recognize that. As you recognize yourself, as the non-Aboriginal standards evolve, they will impose themselves on the Aboriginal people because everyone has to receive the same interpretation according to the offences created in this legislation.

Mr. Macklin: I would think that will obviously be a question we will have to deal with over time, as to whether there can be adjustments made and whether we are prepared to accept those adjustments.

When you look at defences, you have to look at the situation in its totality. I do not know that you can simply set up a defence that would be applicable in the city and another one for north of 60. You have to look at the whole of what is being presented at the time as a defence. In this process, we should all have the basic underlying same treatment in terms of a defence; however, practices carried out in the city would not necessarily be the same practices carried out in the North. From a traditional perspective, it is obviously an issue that we may not be able to resolve at this point. We as a nation have been struggling with that process. It will take some time.

Senator Andreychuk: You have said that the Aboriginal would be protected in the defences, lawful excuse, et cetera. Do you not see section 35 defends their method of harvesting irrespective of what evolving standards there may be?

Mr. Macklin: I would submit that that would have to be looked at, as I suggest, on an individual case basis, as to whether in fact that was protected or not. I am simply not in a position to give a definitive position on that today.

Senator Nolin: Have you read the amendment we proposed?

Mr. Macklin: Yes.

Senator Nolin: Completely?

Mr. Macklin: Yes.

Senator Nolin: The three last lines? Look at them and read them again. I am referring specifically to the part of the sentence that starts with "and any pain, suffering or injury caused is no more than is reasonably necessary in the carrying out of those traditional practices."

Mr. Macklin: Yes.

Senator Nolin: Does that not remind you a little bit of Menard?

Mr. Macklin: In our view, the question was one of whether you were actually trying to create a separate standard for Aboriginal people.

Senator Nolin: I do not want to argue with you. We are recognizing that, in 1982, Canada as a whole recognized that they are distinct and different. We have to recognize that; it is a fact of life.

We are trying to take that consideration — which is a global consideration — and fit it into the scope of our bill. That is why we have added those three lines. Those three lines are a constraint to the rights.

Mr. Macklin: I would like to believe that the law that is being proposed would, in fact, keep the same basic standard. However, each individual case will be looked at in terms of the defences brought forward at the time. To limit the defences and try to define them in little boxes at the moment would not be appropriate.

We are proposing a fairly broad range of defences. If you can bring them forward and convince the judge that in fact that defence has been available to you historically, it should be considered for acceptance by that judge. The point of the whole effort is to try to stop inhumane treatment, not necessarily to change ritual practices in the process.

Senator Grafstein: Mr. Macklin, I appreciate your difficulties, as all members of the Senate are wrestling with this. Would the minister consider that, in addition to everything else we are doing, — which does not prevent the committee from proceeding however it chooses to proceed — an indication that, because this is new it may have ramifications beyond the intent of the legislation, he would review the cases that might be brought under this new offence and seek to remediate the legislation within two years by undertaking that if there is inappropriate use of these provisions that he will introduce legislation to ameliorate the situation?

I am not looking for the perfect; I am looking for the possible. We have had sunset clauses and so on. It might be too late in the game to provide that. This committee is very familiar with those, and they have been very useful tools. Having said that, we are in a different time and place. Obviously you cannot commit the minister, but perhaps you might give us your own views and perhaps then pass those views on to the minister.

Mr. Macklin: I certainly will deliver the message. The minister has made it clear in statements in certain round tables that he has had in the last year that he is interested in looking at reviewing the code in its totality. I know that is a monumental undertaking. That would take into consideration matters of concern and interest. It would not happen instantly, so your timetable of two years certainly might be in that window.

As in all process within Justice, we are looking at how well our law is performing. At the end of the day, the concern is: When do we make a decision to act on areas where we see concern? I am certain that we are sensitive to this issue. I am sure it would be brought to our attention promptly if in fact this section is not performing to our expectations and intended standards.

Senator Beaudoin: Aboriginals are in a different category. Section 35 pertains to collective rights, which is what the Supreme Court said. When we are talking about collective rights and criminal law, we have to take into account that it is very special.

They are in a particular situation. When we study this on the non-derogation clause, we will have to take this into account. We should not forget that it is collective rights and not individual rights. My rights are individual. Their rights are collective. This should be taken into account.

The Chairman: On behalf of the committee, Mr. Macklin, I want to thank you for agreeing to come to put yourself in this difficult position. I would be remiss if I did not thank you for being so forthright and honest with your responses to all senators' questions.

We appreciate it. It has been a great help to our deliberations and thank you again, Ms. Klineberg.

Mr. Macklin: I thank you for giving me the opportunity. When I came to Parliament some two and a half years ago, I was obviously under some public perception that perhaps this place was not effective as it could be. I have changed my perspective.

On this particular bill, I would have to say that I am very appreciative of the effort you have put in.

The committee continued in camera.

The committee resumed in public.

The Chairman: Honourable senators, we are now out of camera, or in public. The question is, and I repeat it: "That the Senate concur in the amendment made by the House of Commons to its amendment 4 to the Bill C-10B, an Act to amend the Criminal Code (cruelty to animals);" and "That the Senate do not insist on its amendments 2 and 3 to which the House of Commons has disagreed."

All those in favour?

I see four in favour.

All those contra-minded? Seven.

That dispenses with the first one.

Senator Cools: Someone said they wanted a recorded vote, so we should do a roll call.

Senator Smith: I do not know that anyone is requesting that.

The Chairman: No one is requesting that.

Senator Cools: I thought I heard you say you wanted it recorded.

The Chairman: That is when we were back in camera.

Now we will proceed to the second order of reference:

THAT the Message from the House of Commons concerning Bill C-10B, An Act to amend the Criminal Code (cruelty to animals), be now referred to the Standing Senate Committee on Legal and Constitutional Affairs.

The next part of the process is we have to decide how to respond to the message. Presumably, the acceptance of amendment number 1 would be fine.

Hon. Senators: Agreed.

The Chairman: Presumably, the acceptance of amendment 5 would be fine.

Hon. Senators: Agreed.

The Chairman: Amendment number 2, which is what we have been referring to as the "removal of the killing provision." What is the wish of honourable senators with respect to that particular section, that we continue with our own amendment or that we make some alterations to it?

Senator Cools: Maintain it.

Senator Beaudoin: Maintain it.

The Chairman: The majority of committee wishes to maintain it?

Hon. Senators: Agreed.

The Chairman: Amendment number 3, which is what we have referred to as the "non-derogation clause," what is the wish of the committee?

Hon. Senators: Maintain it.

The Chairman: Is there anyone against maintaining it?

Senator Andreychuk: May I speak to it?

The Chairman: Yes.

Senator Andreychuk: I had difficulty because we had spent so much time on the wording. I have spent a lot of time reviewing the section and I wondered whether this committee would accept a small change to our original amendment? Originally, we were saying that: "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 one of the Aboriginal peoples of Canada." The part that bothered me was "in any area in which Aboriginal peoples have harvesting rights." The dilemma was that some Aboriginal people have traditional harvesting rights, geographically based.

I heard Senator Gill say there were overlapping rights and they have certain abilities to work this out and, if not, of course it would be a court challenge. On reflection, it would seem that rather than "in any area in which Aboriginal peoples," and changed it to say "in the area in which the Aboriginal person..." that we would accomplish exactly what all Aboriginal people have, including those who have overlapping, those who have as yet unsettled rights, and those who have settled rights. We start out the section by saying "No person shall be convicted," and then we say, the practice is carried out by "one of the Aboriginal peoples of Canada, in any area." It would be in the area in which the Aboriginal person has harvesting rights. It is to maintain the integrity of section 35 — maintain the integrity of the rights.

Senator Cools: Would that change be the same if you said "in those areas in which Aboriginal peoples have harvesting rights?"

Senator Andreychuk: No.

The Chairman: Senator Andreychuk is trying to make it more specific to the areas where Aboriginal have hunting rights. It is not just a case of an Aboriginal having the right to go anywhere. That is fair enough; is it not?

Senator Watt: Can I explain what proportion she has covered in regards to overlapping hunting areas and overlapping rights? There is a reciprocal agreement in regard to overlapping rights.

For example, the Cree and the Inuit operate basically in the same area. Is it so far apart, but there is an overlapping described in the agreement. There was a management regime also attached to it. No one can go into that area without consent. There is a very clear administrative responsibility attached to it. Therefore, there is no chance for anyone to go into the area and do whatever he wants to do. That is not the case. I agree with her. To make it clearer, I support that.

The Chairman: Honourable senators, this would eliminate one of the strongest objections that the Commons had to the particular clause.

Senator Watt: If we could remove that I would appreciate that.

The Chairman: If I heard Senator Andreychuk right, it will now read:

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 one of the Aboriginal peoples of Canada in the area in which the Aboriginal person has harvesting rights.

Senator Andreychuk: That maintains the integrity of all situations. There is a corresponding French.

Senator Watt: Does that remove entirely the concern that the House of Commons had?

The Chairman: It goes a long way to alleviating their concerns.

Senator Cools: A piece of paper I was given says, "In any area in which Aboriginal peoples." It does not say "Aboriginal person."

Senator Andreychuk: The first is what we have; the second half is the proposed change.

Senator Cools: Good, so it is limited.

The Chairman: Honourable senators, we have to move on.

Senator Jaffer: It is on division.

The Chairman: We are moving on. It is not unanimous, it is on division.

The last problematic area concerns the colour of right. I will try to shorten discussion on it from what was said last night. Honourable senators know the original form of the amendment that we proposed. The form that came back from the Commons was: "For greater certainty, the defences set out in subsection 429(2) apply to the extent they are relevant with respect to proceedings under this Part."

We discussed the possibility of taking out "to the extent that they are relevant" so that the amendment would read: "For greater certainty, the defence as set out in section 429(2) apply with respect to proceedings under this Part."

Are honourable senators satisfied with that? That is not the original amendment.

Senator Beaudoin: It is an improvement.

Senator Nolin: We would refer to 429(2) instead of creating a new one?

Some Hon. Senators: Yes.

Senator Nolin: We have a problem there because section 429 is contained in a chapter of the Code that refers only to property.

The Chairman: We would refer to the defences set out in 429, rather than name them. They had some problems with us listing them, but I think, from our discussion last night, that we really did not have much trouble with saying, "The defences set out in 429." It is fairly clear what those defences are, it is clear what the references to the defences are and if we take out "to the extent they are relevant " and say they "apply in respect to proceedings for an offence under this Part," we accomplish what we were trying to do under our own amendment.

Senator Grafstein: I will suggest a slight variation, which might meet their objections. Instead of saying "to the extent they are relevant," say, "For greater certainty, the defences set out in section 429(2) apply mutatis mutandis in respect of proceedings for an offence under this Part."

Senator Nolin: That begs the question of amending 429.

The Chairman: I think if we simply go with: "For greater certainty, the defences set out in section 429 apply in respect to proceedings for an offence under this Part. " We import all of the defences in 429 for that Part.

Senator Cools: If we wish to go with spelling out the words in 429 we should just take their wording.

The Chairman: They were very happy with it. This was put in primarily for the rural caucus.

Senator Cools: Go with what they are happy with. The House of Commons offered us this; go with what they offered us. It is that or staying with our own.

Senator Joyal: We do not want to have "to the extent they are relevant," and we want to remove this.

Senator Grafstein: I believe we should ask legal council about incorporating the words mutatis mutandis. I think it will deal with everybody's concerns.

The Chairman: No, it confuses it, I think. However, we will ask Mr. Audcent.

Mr. Audcent: With respect to the proposal to add the words mutatis mutandis, my understanding is that current federal drafting practices have been to move away from Latin in the text. Therefore, so we would not put the words in a federal statute today.

The Chairman: Honourable senators, are we happy with simply dropping "to the extent that they are relevant," which was really the only problematic part that we discussed last night, and basically giving back the amendment that they changed?

Senator Jaffer: Why not go with what Senator Cools had said: Leave that as is?

Senator Beaudoin: I think it is wrong to remove what they are suggesting — "to the extent that they are relevant."

Senator Smith: They never said that is what they are going to do.

Senator Andreychuk: The basic thing.

The Chairman: The problem with "to the extent that they are relevant" was that it created an issue, because we were moving it from property. If we take that out, there is no grey area.


Senator Jaffer: On division.

Senator Cordy: I think this is one of those cases that, rather than playing semantics, we suggest to them that we have some give and take. I have no difficulty with the wording that the House of Commons has sent.

Senator Andreychuk: It is not give and take. It is fundamental.

The Chairman: Question! All in favour? I will read the question.

Is the committee in favour of amendment 4, reading as follows: "182.5 For greater certainty, the defences set out in subsection 429(2) apply in respect of proceedings for an offence under this Part."

All in favour?

We are deleting "to the extent that they are relevant."

All those in favour? Seven.

Opposed? Four.


I need the permission of the committee to allow me to cobble together what we have just done and bring it back in the form of a report without giving everyone here an opportunity to see it ahead of time.

Senator Jaffer: I would like it be recorded that in respect of the clause on pain, that was on division too — the "unnecessary."

The Chairman: Yes.

The steering committee can stay behind and we can try and cobble together some sense out of this.

The committee adjourned.

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