Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 18 - Evidence, December 4, 2006
OTTAWA, Monday, December 4, 2006
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-1001, respecting Scouts Canada; and Bill S-213, to amend the Criminal Code (cruelty to animals), met this day at 1:03 p.m. to give consideration to the bills.
Senator Donald Oliver (Chairman) in the chair.
[English]
The Chairman: Honourable senators, this is the second meeting of the Standing Senate Committee on Legal and Constitutional Affairs in relation to Bill S-1001, respecting Scouts Canada.
The summary of the bill indicates that it consolidates and updates the statutes governing the corporation known as the Boy Scouts of Canada in order to reflect more accurately its current status in Canada. It also changes the name of the corporation to Scouts Canada and makes other technical and incidental changes relating to the administration of its affairs.
On November 8, we heard from the Honourable Senator Consiglio Di Nino, the sponsor of this bill, and from Mr. Robert Stewart, the Executive Commissioner and Chief Executive Officer of Scouts Canada.
Today we are pleased to hear from Scout eh!, a group of over 700 registered Scouts Canada members whose goal is to turn Scouts Canada into a more democratic association.
Michael P. Reid, Chairman, SCOUT eh!: Honourable senators, committee officials, guests and esteemed colleagues, please allow me to introduce myself. My name is Michael Reid. I am a registered Scouter of Scouts Canada and the Chairman of the Scouts Canada Ordinary-member Unity Taskforce Association or, as we call it, Scout eh!
This association exists to give a voice to the thousands of Scouters across Canada who feel they have none with the current form of governance within our association. I come to you today from Montreal to address concerns that I, as a Scouter and as a Canadian citizen, have with the bill before you.
[Translation]
Before I get started, I would like to say how wonderful an experience it is for me to be here with you today. I am just a regular guy who was born here and who is proud to be a Canadian. I have volunteered my services to the community and to my country my entire life. Being a volunteer gives me an opportunity to give back to my country for all of the benefits I enjoy as a Canadian.
I will now switch back to my mother tongue, to make it easier on your ears.
[English]
I am proud of my country and I have served it in many types of volunteerism over the course of my life. It is a debt of gratitude for me as a Canadian. Volunteerism is one of the things that make this country great. It is my pleasure to contribute in some small way to that greatness.
What is absolutely astounding to me is that I can come to Ottawa as an ordinary citizen, enter these Houses of Parliament and have the opportunity and the right to speak, to air my concerns, to be heard, to possibly have an effect on the direction of a law which, when passed, will affect the lives of thousands of volunteers and youth in this country.
For me, this is an honour that I would never have believed possible. One ordinary guy, one voice, and the government that makes the laws of the land will listen. It is democracy at its finest and it is why Canada shines as the premier democracy of the world. At this moment I have never been prouder to be Canadian. I wish to thank you all for this opportunity.
Growing up Canadian is a blessing. Inherent in the fabric of being Canadian is the knowledge that one is free, that one has inalienable rights, and that, as I mentioned before, one lives in a democracy.
In my schooling and Scouting life, I was taught that democracy is a right to stand up for; it is not a privilege. I was encouraged to serve my country through volunteerism. I was taught that one person can make a difference. This is embedded in the very foundation of Canadian society and in the national psyche of Canadians.
Imagine if you will, an association whose mission is to build better citizens, an association charged with teaching those citizens how to learn by doing. Imagine an association that encourages the youth of society to higher service and challenges them to lead by example, a movement that encourages free thought; standing up for what is right and defending those who cannot or will not speak. This is the movement of Scouting in Canada, an association considered so important at its inception that it was created with a Royal Charter by Parliament.
This ordinary person who professes his pride as a Canadian is the same man who has always been proud to wear this uniform. For me, this uniform stands for more than 100 years of Scouting; it stands for more than badge-earning, camping fun and brotherhood; it is more than a good deed every day, helping others and being a friend to all. To me, this uniform symbolizes a promise made.
``On my honour, I promise that I will do my duty to God, the Queen and my country.'' These lines from the Scout Promise are a commitment, and this promise I have striven to live by ever since I was invested as a young lad of 12 years. I have taken my Scout Promise seriously, and that means I have to do my duty and stand up for democracy as it pertains to the bill before you today.
Scouts Canada says it is simply a name change and a housekeeping bill, formalizing the Scouts name from Boy Scouts of Canada to Scouts Canada. That is okay with me and it is okay with almost everyone I know. However, hidden within this act are words that will virtually eliminate any formal democracy in the Canadian institution we call Scouting.
As an ordinary member of Scouts Canada, I have no rights. I cannot elect a commissioner from my own area to represent me at the next level of management. I have no formal vehicle where I can get up and yell, ``stop.'' I cannot even stand and ask a question at a Scouts Canada annual general meeting. This bill, as I understand it, will entrench a system of circular appointments of voting members that will not truly represent the grassroots of Scouting, and the grassroots is where Scouting really happens.
The people in these voting positions are well-meaning, but good intentions mean nothing if a fundamental Canadian value is missing.
Scouts Canada will say it has democracy and that it has more voting members than ever before with this new method of governance as outlined in the bill. More votes mean nothing when the persons making them have no moral authority or mandate from the people they represent.
The thousands of frontline Scouters who are this movement have been disenfranchised. Those who are the supposed stakeholders of the movement have no say. It is true that a large majority of them will keep their nose to the local grindstone and make Scouting happen despite any rhetoric. I would be much happier to see them do their jobs knowing they have a true say in their association. They should know they are making a difference with their association and not in spite of it. I want them to be proud not only of their Scouting but also with the knowledge that their Scouting reflects the democratic principles of the world Scouting movement to which Scouts Canada purports to subscribe. More important, I want them to reflect those values that we as Canadians take for granted every day because they are a part of the social fabric of this country.
I will leave it to my esteemed colleague Scouter Ted to speak to you of the nuts and bolts of the matter. I do not pretend to understand everything in the bill. I do understand however, that the bill in its present form is not a step forward with a new name for a new Scouting century. If passed in its present form, it is a step backwards to a less enlightened time, and for me, the new name will be a little tarnished.
I thank you for your attention and will answer any questions you may have.
Edward (Ted) Claxton, Treasurer, SCOUT eh!: I am a barrister and solicitor in the Province of Ontario and have been for over 25 years. I was a Scout as a youth and have been in a leadership position for over 13 years.
I became part of the SCOUT eh! organization for the same reason that Scouter Mike Reid did.
With respect to the name change of Scouts Canada, the name was changed in 1961 when a similar small bill came before the Senate. It was changed from the Canadian General Council of the Boy Scouts Association to Boy Scouts of Canada. It was a three-paragraph bill. There is no opposition to the name change to Scouts Canada. That is not what we are here to oppose. Indeed, we agree that it would be a proper thing to have a change of the formal name to Scouts Canada by the process of an amendment as was made in 1961. I am sure that the five girls that I have in my Scout troop would be very glad if it were not the Boy Scouts anymore. It would be an amendment that would be particularly suitable in the one hundredth-anniversary year of Scouts Canada.
Why are we here then, senators? The name change is a non-issue. What is at issue are other changes, which, although subtle, are, in fact, fundamental. They propose changes that are basically at the root of Scouting.
I will look at three clauses: first, the objects clause; second, the corporate capacity clause; and, third, the repeal clause.
First, we need to look at the amendment of the objects clause, which is in paragraph 2 of both bills. In the current statute, it says the following in clause 2, ``The purpose and powers of the corporation shall be to promote and carry out in Canada the objects of the said association.'' The purpose is to carry out the objects of the association.
The proposed clause states:
The object of the Corporation is to promote the mission of scouting among young persons.
The act says, `` . . . the instructing of boys.'' We would like that to change to ``young people.'' The act goes on to say to ``carry out in Canada the objects of the said Association, in various principles and to promote and assist in the establishment of associations, local associations, to publish and sell books and generally to do all things necessary requisite for providing and maintaining an efficient organization.
The purpose of the corporate aspect is to support the local associations and the local organization because this is a movement, and a movement is a voluntary association for the promotion of mutually agreed upon objects. If we compare the purposes, it says to ``promote the mission of scouting.'' In the statute that stands, of course, it is all set out. The mission of Scouting then becomes subject to change by bylaw because this document called the Scouts Canada Act acts as our constitution for our association. By saying that the purpose is to promote the mission of scouting, then how and why do we know what the mission of scouting is? There is no reference in there to the World Organization of the Scout Movement, nor is there any reference in there to what it is that would be promoted. As such, as I said, that becomes subject to the amendment of the bylaws, which can be defined in any way.
Our problem is that as ordinary members, we no longer have any influence over our organization.
Second, I want to compare the corporate capacity clause. That is clause 3. Clause 3 states, ``The Corporation has the capacity of a natural person and, subject to this Act, all the powers, rights and privileges of a natural person.'
Under the current legislation, it says that a large number of prominent people in Canada at the time, namely, in 1914, and their successors in the corporation hereby created are incorporated and under the name Canadian General Council of the Boy Scouts Association, ``hereby called the corporation.'' The words ``hereby called the corporation'' are indicative of words of convenience. It is called ``the corporation'' so you do not have to continually repeat ``the Canadian General Council of the Boy Scouts Association.'' This new bill sets up the powers of an individual person. The Corporations Act has a definition in it, and the Interpretation Act provides for what the powers of a corporation are under section 21(1), (2), and (3).
Section 21(1) is really the only important part. It says, ``. . . words establishing a corporation,'' and that is what happens in the statute we have now; it establishes a corporation.
It goes on to say, ``. . . invests in the corporation the power to sue and be sued and contract and have a seal, have perpetual succession, acquire and hold property and alienate property.''
It then talks about the English and French names and then says, very importantly, subsection (c) of section 21(1) as ``. . . vesting in the majority of the members of the corporation the power to bind the others by their acts.''
As it stands, we are supposedly all members of the corporation, but by bylaw — and in my humble opinion of the bylaw is that it is probably ultra vires and could be changed — it changed a fundamental nature by saying that there are two kinds of members. There are voting members, of whom there are 100, and there are ordinary members, to which class we have been consigned and we cannot elect those voting members. Those voting members are appointed effectively by a circular system.
I do not know whether you have received it yet, but I sent documentation to the clerk of this committee. I hope that you would look at that circular system and see how we are all eliminated from any effective participation. The only purpose of using language that says ``the capacity of a natural person,'' is to concentrate the membership into one person. This is language that business corporations use, not eleemosynary charitable corporations.
By having a statute that says ``all the powers of an individual person'' then the board of governors has to think about where its fiduciary obligation lies. Where you have a natural person and a corporation instituted and constituted of a natural person, the person's fiduciary obligation is to the corporate entity.
The Chairman: That is understood.
Mr. Claxton: In a membership it is to the members. That is why we say this makes a fundamental change in the nature of the organization.
The Chairman: You wanted to say something about the repeals clause.
Mr. Claxton: Yes, when a statute is repealed, the old statute is gone except for matters that have been previously established. The question of the association, in our view, will be swept away by the repeal because there is no mention in the new bill of Scouting being an association of members. It is now a natural person. We believe that change will fundamentally entrench what is in the bylaws now because the law is that once Parliament has passed it, you cannot look inside or behind the legislation. The courts have said that repeatedly.
Scouts Canada claims that this is a modernization of the statute for the 21st century, but most of the bill is actually the same as the 1914 act. The proposed changes are not mere housekeeping matters but matters of substance that only serve to enforce the disenfranchisement of the membership.
In our view in the statute that is now in effect, the bylaws have been abused to the detriment of the membership which no longer has any real forum. The change that was made by those bylaws went far beyond merely regulating classes of membership as an honorary member or a youth member or an adult member, but went to the heart and made a distinction between voting members and ordinary members.
I would ask that you consider this: More than ever Canadians are demanding accountability from their organizations. Our youth deserve no less than the best in corporate government. The statute represents the constitution of Scouts Canada. In order for that document to be a document for the 21st century, it must enshrine some fundamental concepts, including democracy, accountability and membership rights.
The Chairman: Mr. Claxton, thank you for that introduction and for bringing us the three sections of the act about which you have concerns.
You will recall when we last sat on this particular bill we heard from Senator Di Nino and Mr. Rob Stewart, the executive commissioner and chief executive officer of Scouts Canada. At that time, they said that they would like to bring their lawyer, Mr. Robert Laughton, who is their legal counsel. He is here today and it would be our hope that around 1:55 he could come to the table and answer some of the questions that have been raised.
In the meantime, we will commence with questions from Senator Milne.
Senator Milne: If we look at this bill that is before us, you would like to see clauses 2, 3 and 13, the repeal clause, removed from it, or what precisely would you like to see done with this bill?
Mr. Claxton: I do not believe that this bill can be fixed by those various amendments because they are too fundamental to the bill. I am suggesting that if we want to be Scouts Canada, then there would be no opposition to a simple bill introduced to change the name to Scouts Canada unless and until there is some measure of unanimity within Scouts Canada concerning the real direction that this is going, then this bill should be deferred. That is our basic proposition.
Senator Milne: If we look at clause 6 of the bill, so that I can completely understand this, I read through here and I am trying to come up with your 100 voting members somehow. At clause 6 it states:
At each annual general meeting of the Corporation, the Corporation shall elect an executive committee from among its members.
These are members of the corporation. Are these the 100 voting members or are these members at large?
Mr. Claxton: They are from the 100 members.
Senator Milne: They are strictly the 100?
Mr. Claxton: Basically anyone could be elected, but first they must be nominated. There is a nominating committee that makes a slate, that slate is put before the 100 voting members and the 100 voting members basically, if I can put it bluntly, rubber stamp that slate. Last year, by the technicalities, five voting members nominated Scouter Liam, who is here, but that process took me weeks. I had to find out who people were. I had to work diligently to get one person nominated. It only proved to us that the system is so cumbersome that really the only voting is in relation to the slate that is put forward by the nominating committee.
This year there were 40 people put forward to the nominating committee. They chose eight or 10, whatever were vacancies. They filled the vacancies and indicated that was the slate. I know from personal experience, from people who have spoken to me who are among the voting members, they are grumbling about that. They ask why they do not get a choice on who those people are. No one gets a chance to vote on the voting members.
In the package that I sent to the committee, you will see this circular system that shows where you start with the board of 23 members. They select the chief executive officer. He, in consultation with our chief commissioner, picks and approves the 20 council commissioners. They comprise an executive committee of their own. They have 15-20 people on each council, depending on the size. None of them are elected. They are appointed by the council commissioner. Among themselves, they choose three people: the council commissioner, the youth commissioner and one other. Theoretically it could be anyone, but it is usually one of the members of the council team.
They comprise these 100 people. There are 60 of them. There are the 23 members of the board who are able to vote for themselves, which is very democratic. There are five others who come from the Salvation Army and L'Association des Scouts du Canada, as well as 12 honorary voting members.
The process in turn goes back up. Those 100 people elect the slate. Anyone who can tell me the democratic process in that, I would be glad to know. Patently, there is no democracy in how that works.
Senator Milne: Is that the present system?
Mr. Claxton: That is correct; that is the system under the bylaws. That system was created by bylaw. In my view, it is contrary to the law because it affects our basic rights as members.
Senator Milne: Would this bill enshrine this present system in legislation? It would not make it worse. Would it make it permanent?
Mr. Claxton: Effectively, yes. The Scouts Canada organization says it can change the bylaws. It is true that members cannot introduce changes to the bylaws. They must be introduced by the voting members, and they are all appointees. Therefore, will the appointees change this? Maybe they will.
We have been having some success as an association within our organization. I think that we have spotlighted this problem to a degree that in the strategic directions that came out last year, one of the things put in was to try to get more democratic governance. However, the bill does not help us in that regard. Until we can crack that nut, we have no say. That is my position.
Senator Baker: Did the annual general meeting take place last weekend?
Mr. Claxton: That is correct.
Senator Baker: It took place in Winnipeg. How did that go, as far as the concerns you are raising before this committee?
Mr. Claxton: I was one of the people who attended. A few of us got in the car and drove all the way from Ontario to Winnipeg. It was a nice drive. We came back again. We even came to Ottawa.
We were able to be observers. We sat in on the meeting. There was a session on finances. I think one council commissioner rose and asked what I thought was a softball question. The instructions that we received came from our chief commissioner. Mr. Reid asked him about that, and the answer was actually published on the Scouts Canada website. It said we should put our queries through our voting members.
The problem is that the financial information is deemed to be confidential, and it was not made available until the day of the annual general meeting. How could I read a 15-20 page financial report in a few minutes and be prepared to ask sensible questions? There is no possible way that I can put together sensible questions and find a voting member that I can approach to ask those questions. That is not sensible.
Senator Baker: Correct me if I am wrong, but were you accused at the meeting of leaking some financial information of some sort?
Mr. Claxton: We were.
Senator Baker: Can you tell the committee why and what eventually happened? Were you guilty of this?
Mr. Claxton: No, we were not guilty. We put some information on the website. One item stated: ``Third quarter financial report available.'' If one clicked on that and read it, it stated: ``But not to us because it is confidential.''
We also put on the website the report of our Chief Executive Officer, dated November 7. By its tenor and tone, I believe it was a public document. Fortunately, I was able to speak to our Chief Commissioner and our CEO, and they made the proper and very Scout-like, I would say, correction to the misinformation submitted.
Senator Baker: Is that like an apology?
Mr. Claxton: It was not sort of like an apology; it was a real apology. They apologized. I have no qualms about saying that. That was misinformation they received, and they dealt with it very properly and very promptly.
Senator Baker: You say you drove all the way from Ontario to Winnipeg for the annual meeting. I know of a couple of people who drove all the way from Newfoundland.
Mr. Claxton: Yes. One of them came with me to Ontario.
Senator Baker: I had a conversation with this gentleman, who is perhaps the most respected Scouter in the central Newfoundland area. When I asked him about the meeting, he was very upset and disturbed. He repeated some of the words that you have been using. He did not have a chance to ask any questions, but there was a complete lack of democracy in the organization at the meeting.
How widespread is this feeling? This gentleman had driven all the way from Newfoundland and all the way back. He is 69 years old. He has been in the Scout movement for 40 years. I did not know there was such widespread dissatisfaction. This bill certainly will not cause that dissatisfaction. The dissatisfaction is already present. The lack of democracy, as you put it, is there. As this gentleman explained to me, it is there and certainly needs to be corrected.
We can analyze this bill all we want word by word. You are a solicitor, and you have been such for several years. We can analyze it, but there is nothing we can do with this bill, as you pointed out, to correct it. Therefore, what is the solution?
Mr. Claxton: The solution, in my view, is we should have a proper discussion within Scouts Canada as to the composition of our constituting document. When we come to some reasonable consensus or proposition about it, I would be glad to appear arm-in-arm with our executive people. We are all volunteers, but we cannot make a virtue of being a volunteer in an all-volunteer organization. We should at least be on the same page, and we are not on the same page.
Seven hundred people have signed our membership. We have contacted new members via the Internet. I cannot go across the country and find people from every angle and corner of our nation. I live in Kitchener. I live in a small city. Many people have told me they would like to sign up but they are afraid their membership or motives will be questioned. They tell us to keep working on it and for us to take the bullet. I will stand up and do that.
Mr. Reid: You must understand as well that SCOUT eh! began with one email I sent to 36 people, and it snowballed. Within a month and a half we had 200 members across Canada. I was being interviewed coast-to-coast on CBC Radio because we felt there was something wrong in the democracy.
The Chairman: You were interviewed about this bill?
Mr. Reid: Specifically about the leaders feeling very disenfranchised.
The Chairman: About this bill?
Mr. Reid: This bill is a huge component of that.
Senator Baker: This is quite a serious problem you are putting in the lap of legislators. You are suggesting to, yes, change the name. That was what was purported to be the main intent of the legislation.
Are you suggesting striking the bill and having the Senate of Canada offer an opinion regarding this matter?
It appears to me that dissatisfaction is widespread, just from speaking to the representatives from the province of Newfoundland. Is it actually widespread, or are you just a small group of people who are dissatisfied with the set-up?
Mr. Reid: There is the 80/20 rule. Twenty per cent of people make more noise than the other 80 per cent. I think when you look at our numbers of 700 from coast-to-coast, those people who have taken the time to read our website. We do not force anyone to join. We suggest that people read our research, read our papers and make up their own mind. If you are with us, that is great. If not, we are still brother Scouts and we have no problem with that.
If you look at the 80/20 rule, you will find there are many thousands of Scouters who do not want to get involved. They want to take care of their own little backyard by running their Beaver colonies, Cub packs or Scout troops and stay out of the rhetoric. I respect that. I really think the 700 figure represents a number that is much larger.
Senator Baker: Is it correct that some campsites are actually being decreased and/or sold?
Mr. Reid: Some campsites with dwindling numbers and dwindling revenues have been sold. Certainly, business cases can be made to sell some properties because they cannot pay their own way.
Our feeling is that each campsite should be evaluated locally and not by a body far away from it. The people who use it should evaluate each campsite and then disposal should be discussed rather than having it decided elsewhere by people who do not use the property. That is what we think.
The Chairman: As Senator Baker has just suggested, perhaps it is not the role of a Senate committee who is here studying legislation to actually comment on and express an opinion about your private internal situation. That is not normally what Senate committees are here to do.
Senator Jaffer: Thank you very much for appearing. I certainly appreciate the work you are accomplishing. I was a Beaver Scout/Venture Leader, and I am happy to hear you have no problem with the name. I took the first group of mixed Venture group to the world jamboree in Kananaskis, so I am happy you have no issue with the name change. I am glad you have five young girls in your group. Women can gain an excellent opportunity from the movement. However, I am troubled with what you say, having been a member of the great Scouting movement. There are some issues. From what I understand, the issues are not so much related to this bill. The issues are with the bylaws. Am I correct in that?
Mr. Claxton: No. As I have tried to explain, it is kind of a subtle situation here. The issues are compounded by this statute, making the corporation not a membership corporation but an individual, as in the business corporation. It takes away the language of an association, which puts into the legislation what has already been accomplished by bylaw. Once that is done, we are stuck with it.
This is a private bill dealing with a private organization. It should have come forward with unanimity. I agree that it is not the proper role of a Senate committee to decide whether this should or should not be passed. However, it is a matter of such fundamental importance to us that we felt compelled to come here and speak to you.
Senator Joyal: If I understand your proposal, the way you have interpreted the previous legislation — especially the 1969 legislation — is that the statute lends itself to the democratic nature of the association, but that nature has been changed by bylaws and this statute confirms that change. In your view, is that the sequence of evolution?
Mr. Claxton: Yes.
Senator Joyal: Do you claim that at the outset, the statute was open for a democratic life within the association on the basis of the membership electing its board of directors who, in turn, elects its executive council, which is the normal election process within the Canada Corporations Act?
Mr. Claxton: A ladder system was in place. Each group sent so many representatives to their district, and those district representatives elected their representatives, who went to the next level and on up.
We do not want to go back to that system because there were five levels, and the communication between top and bottom was not very good. At least, it was based on a fundamental democratic proposition where every group and every member had a say in who went to the district from their representation, and then the district to region, region to province and province to national. A line of authority up and down existed.
Now, as one can see, there is a big question mark in between. The possibility of overcoming that, I suppose, is possible. Our organization says there are still bylaws and we can pass new bylaws, but what is the reality?
In Ontario, when you create a corporation by letters patent, you must file bylaws with it. That is not the way it works with this statute.
Senator Stratton: My old Scout master, Charlie Hooey, will be watching, so I had better be careful.
Why are they doing this? That is the fundamental essence of this system.
Mr. Claxton: They believe that this type of structure is a modern corporate type structure that will benefit Scouting. We do not believe that. We believe, on the contrary, that, unfortunately, they want to have an efficient centralized top- down structure. That is the way it works. The national CEO, with advice of the commissioner, appoints the council commissioner. The council commissioners appoint the area commissioners. The area commissioners appoint the provincial commissioners or the group commissioners.
There is no more group committee election-type process. There are no more council elections. There are no more district elections. There are no more presidents. There are no more elections of anyone anywhere except this supposed election by 100 voting members.
Senator Jaffer: I am very troubled by what you have stated. First, as the chair said, I do not think the role of this Senate committee is to get into the bylaws of Scouts Canada. You have described a process that is already in place, despite what is stated in the current Scout charter, which you argue is undemocratic in its top-down process.
If we were to amend the charter and change the bylaws themselves, first, we cannot do that. That also would be a top-down process. We cannot interfere in the membership and the bylaws. We are accomplishing a very old tradition with respect to very venerable organizations that have a charter, and we can only amend a charter. We cannot look at what the membership should be doing. I am troubled with what you are asking us to do.
Mr. Claxton: The question that I feel the senators have to ask themselves is, by what moral authority are they doing it? If honourable senators are bringing this bill forward without the moral authority of the membership then I would say that you have every right to say you are not going to pass this bill, but just let it sit on the Order Paper. The same thing will happen to it as has happened twice already. At the end of the day, when the government falls, one or two years from now, that will be the end of it. At that time, they can try again, maybe with a proper bill.
Senator Cowan: As I understand it, you have described a system where the local membership elects seven layers up to a decision-making body and that body passes the bylaws that creates this two-tier membership, the group of 100 and then everyone else.
Mr. Claxton: That is correct.
Senator Cowan: Leaving aside the moral aspect of it, that was legitimately within the authority of that group to pass bylaws.
Mr. Claxton: On the contrary, I think it is subject to the legal maxim delegatus non potest delegare. The delegate cannot do something that is not in his authority, and the people at the grassroots would not grant authority to change their membership and eliminate their rights as voting members. My personal legal view is it was ultra vires.
Senator Cowan: Has anyone challenged that?
Mr. Claxton: No, and if I had $200,000 I would be glad to start the legal proceedings but I do not.
Senator Cowan: Your concern is that if this bill were passed in its present form it would legitimize this structure that you feel is contrary to the wishes of the general membership of the Scouting movement.
Mr. Claxton: Yes, I think that we should not do anything until there is some real consensus or some way of figuring out a proper bill.
Senator Di Nino: I want to welcome both gentlemen. I honestly believe that their motive is the right motive and, as has been stated, I do not think it is the role of this body to look at that issue.
In the letter you sent out to many people via email, you suggested that we are trying to fast-track this bill; is that correct?
Mr. Claxton: Yes, absolutely.
Senator Di Nino: You are indicating that from May 2003 to November, December 2006 is fast-tracking?
Mr. Claxton: No, I am calling from last Wednesday to today fast tracking. I received a phone call from the Clerk of the Senate saying that the committee meeting would take place today.
Senator Di Nino: That is equal to all the other participants. We have been talking about this for several years. We have been communicating for several years; therefore, you cannot call it fast-tracking.
The bylaw changes that you are suggesting have taken place with which you do not agree, and I applaud your disagreement, that is your right and it should be your duty as well.
I applaud you, but is it not true that there was extensive national consultation and discussion? I think it was certainly well over a year before the annual general meeting, which was a year or so ago. At that time, the bylaws and some 50 other changes were adopted. Is that not correct?
Mr. Claxton: I would say that is not a correct assertion, senator. That is not a correct assertion. There was substantial objection. I tried to get a copy of Bylaw No. 2 and they would not send it to me. Scouter Liam Morland got it and talked to someone, but they were surprised he had it because it was an internal senior policy document that was not made available to the membership.
Senator Di Nino: Do you agree that there was extensive national consultation?
Mr. Claxton: I do not know. I cannot tell because that was at some top level meeting and I know there was substantial objection and that the bylaw was delayed for over six months because of various objections. It is my own opinion that some compromises were made and that people bought into it because they thought that the bylaw would actually have some democratic basis to it, but the proof of the pudding has been in the eating.
The Chairman: Mr. Claxton and Mr. Reid, I would like to say thank you for coming.
I would now like to welcome Mr. Robert Stewart and Mr. Robert Laughton, Mr. Glen Armstrong, the Chief Commissioner and Chairman of the Board. Mr. Laughton, I presume you have had an opportunity to read the testimony from our last hearing on this bill.
You will recall that there was some reference to the fact that they would like to have you come here and make a few representations with respect to the bill and some of the concerns raised about the bill. With that in mind, you now have the floor.
Robert Laughton, Legal Counsel, Scouts Canada: I would like to explain who I am. I am Robert Laughton, Q.C. I retired from the practice of law in December 2004, after 42 years with the Gowling law firm. I now serve as counsel to that firm. I have advised and have experience in not-for-profit corporations having, among others, served as chair of the board of trustees of the Royal Ottawa Hospital, chair of the board of governors of Carleton University and in many capacities served the Ottawa YM/YWCA.
I am familiar with corporate law, having served as lead counsel and chief negotiator for NAV CANADA in its acquisition from the Government of Canada of the Canadian civil air and navigation system. For 20 years, I served as honorary counsel of Scouts Canada and coordinated the provisional legal services by Gowling to Scouts Canada on a no-fee basis.
Having read the transcript, perhaps with your permission and that of the senators, I believe strongly that if I may have just a few moments to step back and take a look at the preparation and background of the bill, it will help the senators measure the responses which I intend to make. It will facilitate our subsequent discussions, both in respect of the senators' questions and to the extent that it pleases the Senate, my response to certain matters raised today by Mr. Claxton.
The Chairman: Please proceed in that way.
Mr. Laughton: Thank you very much. In 1995, we began work on the amendments considered necessary to the existing legislation. That was the act of 1914, as amended in 1917, 1959, 1961 and 1969. Notwithstanding these earlier amendments, in 1995 the existing act was and continues to be badly out of date in only three key areas.
The draft bill that you have before you reflects the proposed amendments in those three areas, which I will turn to in a moment. It also consolidates the various amendments. As I have said, there are four amendments and they each appear in a separate bill. They span the years, and now we are proposing further amendments.
In my work, I have been ably assisted by the Office of the Law Clerk and Parliamentary Counsel, Mr. Raymond du Plessis, Q.C., who has been of particular assistance throughout this process.
The law clerk agreed that all of this material should be consolidated in a consolidated act. It was considered to be too unwieldy in all its form and if we brought it altogether it would be much more convenient for anyone who had to have access to it in the future, thus the consolidation. I believe it is critical to our discussions to recognize that there are only these three simple amendments that are being proposed.
In 1996, when I wrote to the law clerk with our proposed amendments, I set out what we considered to be the three straightforward changes. From then on we have worked through the period. As Senator Di Nino mentioned, at various stages we have had it hopefully before a committee of the Senate, but various matters have delayed us until today.
Generally stated, the three matters, as you have heard today, are, first, to change the legal name of Boy Scouts of Canada to the streamlined Scouts Canada, the name by which now it is commonly known and has been for more than 10 years; the name to be the same in English and in French.
The second item is to change the purpose and power of Scouts Canada to reflect the fact that Scouts Canada no longer serves only the boys of Canada, but also serves young persons, including girls, in its various programs.
The third item concerns the deletion of the reference to Scouts Canada being a branch of the Scouts Association of England. This was the case in 1914, but Canada has been, for some time, a country in which an independent Scouts movement has been established.
These are the only three key amendments that are being proposed and sought by Scouts Canada in the draft bill. The other relatively minor technical and incidental changes have been made as part of the updating of the legislation. I will speak later, if I may, to the observations others have made as to the nature of the changes. It is our position, and I think the record will reflect, that three simple changes are under discussion.
The bill, if you look at it, is a little longer, and why is this here and why is that? It is because we brought all of these other amendments together. You will see a number of provisions, as you look at it that have nothing to do with changing the name. You are quite right. They are there only because we have consolidated for ease of reference.
In my view it is also important to note that the draft bill does not purport to provide for the administration and management of Scouts Canada in all respects. This is left to be dealt with in the bylaws of Scouts Canada, separate and apart from the bill, and this is in accordance with good corporate practice.
The draft bill is simply a short document which reflects a creation at law of the corporate entity known as Scouts Canada and provides for its purpose and powers. Section 7 of the draft bill, which appears at page 3, contemplates the making of bylaws of Scouts Canada for all purposes of the corporation relating to the administration and management of its affairs. I would point out to senators that the provision has appeared in the legislation relating to Scouts Canada since its inception in 1914.
Management and administration was to be provided by bylaw. As I will comment later, this is in accordance with good corporate practice. In accordance with this practice, Scouts Canada has duly enacted a 19-page bylaw, Bylaw No. 2, to which reference was made this morning. This document deals with a comprehensive list of administrative matters, including financial year, head office, corporate seal, members, policies, meeting of members, officers, board of governors, councils, committees and tax groups, indemnity insurance, execution of contracts, amendments and so on. It is responsive to the direction and policy of Industry Canada relating to not-for-profit corporations; the last such policy was issued on June 29, 2004. The bylaw responds to that direction.
I have extra copies of the bylaw here which you may wish to distribute in that in answering the senators' questions I may want to point out sections here to show how things are covered. To the extent a member wishes to refer to them, we have the copies here. This is Bylaw No. 2, the current management and administrative bylaw of Scouts Canada.
With respect, I submit that it is not Bylaw 2, which is before the committee for consideration; rather, it is the draft bill. I have distinguished between the draft bill and the management and operation under a bylaw in accordance with corporate practice. I will endeavour to answer the senators' questions on the administration and where things are covered by reference to the bylaw, but there is that key distinction.
I believe that a number of the objections which the senators have heard in the main relate to the bylaw, the management and administration of the affairs, and not to the constitution of the body corporate under the bill which is before you this afternoon.
Scouts Canada has duly enacted Bylaw No. 2 after a lengthy consultation process across Canada. While Mr. Claxton and others have every right to disagree with certain of its provisions, the fact remains that it is in full force and effect. While discussions will continue in Scouts Canada, as in any corporation, relating to its bylaws, management and administration, I do not consider that this is the proper or appropriate forum for continuing discussions relating to the management of Scouts Canada; other opportunities will continue to exist for those who take issue with it.
As in any organization that is healthy and vibrant, there will be disagreement and different views as to how one should approach it. The voice of SCOUT eh! is well-known and heard within Scouts Canada. As the representatives today mentioned, they have 700 members. I would simply mention in passing that Scouts Canada has 20,000 adult members, and I think it important that we keep a balance between the wishes of the 20,000 less 700 in the passing of bylaws and those who would disagree. It is a vibrant organization; discussions continue and there have been exchanges of views now for several years.
This cross-Canada consultation, to which reference was made in one of the questions I was a part of, the bylaw was initially tabled for passage, a number of questions were raised. Scouts Canada stepped back and set up a committee that held meetings across Canada, to which I provided advice over that period. Substantive changes were made, and the amended bylaw was placed before the membership and duly enacted. Bylaw No. 2, which is before you, represents the management and operational bylaw of Scouts Canada reached pursuant to that process.
I believe that I have addressed all the questions raised at the last meeting. I know that the senators will jump on me if I have missed any.
The effect of the draft bill on Girl Guides was a concern of Senator Ringuette. The draft bill does not affect the rights of the Girl Guides organization, which continues as a separate and distinct organization.
Senator Milne, referring to concerns raised earlier by Senator Banks, raised questions concerning the governance of Scouts Canada. Senator Banks referred, for example, to the provisions of the bill relating to mortgages, buying and selling of land and so on, and asked why this was needed in a bill simply looking for a change of name.
These are not new amendments or changes; rather, they continue provisions of the existing legislation. We are bringing these amendments and others in a consolidated form. These provisions were there and therefore, in response to the question of why the need, Scouts Canada was incorporated in 1914 and was honoured and proud to have a private act as its constating document. In order to make these changes to a private act, we must come to the Parliament of Canada to have the changes ratified.
It is a continuation of provisions. We need them in here because, as long as we are incorporated by private act, we can only make changes by amending the existing legislation. We are doing that by bringing everything together.
Senator Joyal had a number of questions and observations. I thought that distribution of the bylaw might be of assistance. Senator Joyal questioned why there is no reference in our draft bill to the fact that Part III of the Canada Corporations Act applies to Scouts Canada. The answer to this question is found in section 158 of that act. It states generally that a corporation incorporated by a private act is subject to Part III. If you are incorporated by private act, you are subject to it. I think that the draftsmen, the law clerk and others considered that in putting this together. As this was provided for in section 158, there was no need to continue a reference to it in the draft bill.
Clause 12 of the bill states that section 102 of the Canada Corporations Act does not apply to Scouts Canada. I have just said that it does, and that is why we did not have to put it in. Now we are taking it out. What is all this about?
Section 102 of the Canada Corporations Act speaks to annual meetings. As clause 5 of this bill deals with the annual general meetings of Scouts Canada, it was considered that section 102 was superfluous.
Senator Joyal observed that Scouts Canada should have its financial statements tabled each year at its general assembly in accordance with good corporate practice and correctly mentioned that this was not provided for in the bill. However, I made a distinction between the bill and the bylaws. This is expressly dealt with by Scouts Canada in its Bylaw No. 2, in pursuance of the administration and management of its affairs.
I know that you did not have the bylaw before you at your last meeting. Please go to Article III at the bottom of page 3 of the document, which is entitled ``Meetings of Members.'' In paragraph b. there is the heading ``Business at Annual General Meetings.'' Subparagraph (2) of that says that at the annual general meetings one of the business matters to be transacted is ``receipt and consideration of the financial statements and the auditor's report thereon for the preceding year.'' The bylaw contemplates the matter Senator Joyal raised and it is dealt with in that fashion.
Senator Joyal observed as well that a motion for the appointment of auditors is essential to the general assembly of any company. Please turn to page 4, where you will see in subparagraph (6) that one of the items reserved for business at the annual general meeting is the ``appointment of an auditor.''
Senator Joyal also commented upon certain provisions of the French language version of the draft bill. I must admit to my deficiencies in the French language. I relied on the law clerk in this connection. I understand that you have referred those questions to the Library of Parliament for clarification and for the guidance of the committee.
The Chairman: Yes, they have been referred there.
Mr. Laughton: A very important point that comes out of this bylaw exercise and my distinction between legislation and bylaws comes up as a result of Senator Joyal's observation that the issue of membership in Scouts Canada needs to be refined because in the draft legislation he saw a reference to ``the members shall appoint'' and so on. He logically asked where members are dealt with.
This important matter is dealt with in Article II on page 2. The heading is ``Members.'' It sets out categories of membership, and deals with ordinary members, honorary officers and members, voting members, resignation, removal, et cetera. It continues onto page 3, comprehensively providing for the nature of membership in Scouts Canada.
This is consistent with clause 6 of the draft bill which refers to the members of Scouts Canada leaving it to Scouts Canada to define the nature of membership from time to time.
Another important matter in relation to this question arises from the direction. This is entirely consistent with the policy of Industry Canada to which I earlier referred. This is the not-for-profit policy summary of June 29, 2004, issued by Industry Canada. Under the heading ``Bylaws'' in that comprehensive policy issued by the government it is provided that the bylaws must provide the conditions of membership. The conditions must include who can be a member. Remember that I am distinguishing between ``bill'' and ``bylaws.'' We have the direction that they must be in the bylaws, and that is where they are found in Bylaw No. 2.
The conditions must include who can be a member and how a member is accepted into membership. If there is to be more than one class of members, the bylaws must — again imperative — indicate the rights and conditions, including voting rights, attaching to each class of membership.
Second, there is no limit on the number of classes of membership as long as the conditions and rights attached to each class are set out and as long as one class has the right to vote at members' meetings.
Third, voting rights of membership classes may be unequal as long as these are specified in the bylaws. In effect, Industry Canada has said, ``Here are our directions, non-profits, for bylaws. You must have a provision in your bylaws respecting membership. Here are the matters that must be in there, and here are the permissive matters.'' I believe that senators or the law clerks will find that the provisions of Bylaw No. 2 dealing with members are entirely consistent with the directions of Industry Canada in its policy for not-for-profit corporations.
The Chairman: What is your opinion?
Mr. Laughton: My opinion is the same, having prepared the bylaws. I have never won an argument with myself.
I trust that a review of article 2 of Bylaw No. 2, along with this other document, will provide the precision in terms of membership that the senators properly sought at their meeting.
Senator Joyal also observed the need to set out clearly the responsibilities of an organization such as Scouts Canada. I think this also dovetails with one of the concerns raised by Mr. Claxton. Mr. Claxton has referred us earlier to clause 2 of the draft bill, which provides as follows:
The object of the Corporation is to promote the mission of scouting among young persons.
What we have there, first, is a short statement of the object, namely, ``to promote the mission of scouting among young persons.'' The reason ``young persons'' is referred to is, as I mentioned earlier, that one of the three simple amendments we are looking for recognizes that we no longer serve simply the boys of Canada; we serve young people. The law clerk and I felt that the reference to young persons ought to go in there.
The Chairman: Mr. Claxton seemed to agree with that.
Mr. Laughton: Yes, but there was also a reference to a concern he had about the section, and I will come to that later.
During this exercise, the law clerk and I had a discussion at length on that section. I had suggested that we might enlarge upon that to set out the mission of scouting and make it a much longer provision. Mr. Duplessis wrote back and thanked me for my suggestion but respectfully disagreed. In effect, he wrote and stated that he felt the object was the proper statement of Scouts Canada. A mission statement of an organization can change from time to time within the object of serving young people and the manner in which you achieve that — that is, your mission, and so on. Think of mission statements in the corporate world, where they waste or spend incredible amounts of time developing these things and then never read them.
Senator Cowan: They charge for them.
Mr. Laughton: They do, and we are the beneficiaries.
He wrote in part ``There is, in my view, a distinction to be made between the object of a corporation as a legal entity and its mission statement as an organization. Clause 2 of the draft bill as it now reads describes the purpose of the corporation in language that is broad and general. The mission statement, on the other hand, describes in more specific language how the individual members of the corporation intend to carry out its object. The mission statement as such is in the nature of an internal administrative declaration, one that can be changed or reworded over time without in any way affecting the overall purpose of the corporation. A change in the object or purpose of the corporation would require amending legislation, but a mission statement, being operational in nature, could be updated or changed at any time. Unless the overall object of the corporation is not as stated in clause 2 of the bill, my recommendation would be to leave the clause as it now reads.''
At present, Scouts has developed a mission statement — I will not take your time to read that — as well as a Scouts law, and it is not necessary to go on with that.
Senator Joyal, in the absence of Bylaw No. 2 at your last meeting, had some concerns about how this corporation operates. I hope that, from my earlier comments and the distinction between the bill and the bylaw and a review at leisure of the bylaw will provide the answer. In other words, as contemplated by the bill and the bylaw, the bylaw makes it clear how the corporation operates.
Senator Joyal had one further question. He observed that clauses 13 (e) of the draft bill, 13 at page 5 — reference has been made there earlier this morning — states that all the acts mentioned in paragraphs (a), (b), (c) and (d) are repealed, keeping only section 1 of an act that is chapter 68 of the Statutes of Canada. With respect, senator, section 1 is not kept. It is also repealed. It looks like it is kept because it is dropped down below the others, but you will see the ``and'' that leads into it so that, in effect, at first glance it looks like it is not, but if you read it through, they are all being deleted.
They are being repealed because the provisions of all those acts, as I mentioned earlier, are being consolidated. They are all coming within the present legislation. Once they are approved, once they are consolidated, you cannot leave one sitting out there otherwise.
As to section 1 of chapter 68, that section is repealed as it provides that the name in French of Boy Scouts of Canada will be ``Les boy Scouts du Canada.'' As the draft bill before you deals with the name for Scouts Canada in English and French, we could not have a situation where Scouts Canada will use Scouts Canada in English and French and one that says Boy Scouts du Canada. That is the simple reason for its deletion.
Subject to questions from senators, that concludes my comments on the points raised at your last meeting, and I will be pleased to deal with any questions any one may have arising from that.
The Chairman: Honourable senators, it is now 27 minutes after the hour, and witnesses are here for the next meeting. I would propose, with your leave, that we continue this session for another 15 minutes so that honourable senators who have their names on the list can have an opportunity to put their questions. Is that agreed, honourable senators?
Hon. Senators: Agreed.
[Translation]
Senator Nolin: Mr. Laughton, it is clear to me that the bill now before us attempts to conform to the reality that is Canada. You mentioned in your opening remarks that, with all due respect to the historical origins of the scouting movement in England, you were trying to break the ties between the Canadian scouting movement and the historical movement in England.
That said, I have one question for you. The general bylaws of the scouting movement which were sent to me are in English only. Do you have a copy of the bylaws in French?
[English]
Mr. Laughton: The answer to your first question is yes, and to the second question is yes.
[Translation]
Senator Nolin: Do you have a copy of the French version with you?
[English]
Mr. Laughton: I do not. We can provide it immediately following the meeting.
[Translation]
Would you have a problem with our adding to the preamble of your bill a reference to Canadian bilingualism? I am asking that because it is clear from your remarks that you are attempting, with all due respect, to distance the Canadian scouting movement from its British counterpart. That is to your credit. However, I believe the Canadian scouting movement should respect the Canadian reality and Canadian values, bilingualism being one of them. Would you object to our bringing in an amendment of this nature, or at least if we were to give the matter some thought?
[English]
Mr. Laughton: Personally I have no difficulty in adding that, if that is considered desirable.
In the fullness of the response, I certainly have no objection; that goes without saying. In Quebec, we have L'Association des Scouts, we call them ``les scouts,'' and they have their own legislation and so on. That association is predominantly for French-speaking scouters who are members of the Roman Catholic faith. This is purely a remote observation on my part, and as long as the language up front did not suggest in any way we were involving ourselves in les scouts or becoming part of a French movement, I know they are very sensitive to that. That is the reason I raise it and no other reason.
[Translation]
Senator Nolin: Would it not be more appropriate to have only one single scouting movement in Canada, one that is respectful of Canada's two cultural realities, one that would not isolate the two groups but rather would attempt to unify the movement in Canada? I can understand your not wanting to upset your French-speaking fellow Canadians who unfortunately, are often thin skinned when it comes to this subject and who oppose any attempt at unification. However, would you not be amenable to laying the foundation for ensuring respect for Canada's two cultural realities?
[English]
Mr. Laughton: In response, Scouting over the years was a single movement, and in 1969, a private act was passed that created, formally, les scouts in Quebec. It was felt there was a distinct entity there — French speaking and those followers of the Roman Catholic faith — to the extent they felt strongly enough to move forward and attain a private act that gave them a separate existence.
On an annual basis Scouts Canada and les scouts meet two or three times a year for informal get-togethers. They have an agreement under the aegis of the Governor General of Canada where they expressed their common interests in serving the youth of country and lay out various provisions as to how it will operate. They have obviously spent some time in separately incorporating and in having this entente between these two organizations and then making it work by their regular meetings that those closer to the operation in the field of Scouts than I, consider there is desirability in having the two organizations.
[Translation]
Senator Nolin: I would assume that there are scouts who speak French in the movement across Canada, not just in Quebec. Therefore, would this not be a way of recognizing this reality by entrenching in your enabling legislation recognition for this fundamental Canadian value, namely respect for two different linguistic cultures? I assume you would agree with me on this.
I am a Quebecer and a Roman Catholic. That said, it is no longer customary to identify a movement with certain religious beliefs. I can understand your reluctance, you wanting to respect the difference between scouts in other provinces and scouts in Quebec, but not all Quebecers are Roman Catholics or francophones. It would be appropriate for your movement to embrace Canada's linguistic reality, without necessarily having to highlight religious differences.
[English]
Mr. Laughton: You will appreciate that I am here to address legal questions, and the questions posed are going further into the organization of these two separate corporations.
The Chairman: His questions do relate, in fact, to the preamble. Senator Nolin, are you familiar with the language of the preamble? That is where the reference to the Roman Catholic faith and the history of Scouts in Quebec is really defined.
He is asking you questions about the preamble that is, in fact, in the statute.
Senator Nolin: If you remember, Mr. Chairman, a few years ago we adopted an amendment to section 93 of the Constitution relating to the schools in Quebec; the fact that they used to be segmented by faith, now they are segmented by language. I think we have turned that page, and a movement like Scouts Canada is one of the ways we could look at to turn that page also.
Mr. Laughton: Senator, as I say, I am here in the role of legal counsel. We have two separate organizations.
Senator Nolin: Legally you do not have a problem.
Mr. Laughton: Legally we can provide anything, but I do not think, under this act, without a lot more, we can say that the two have come together. They are separate bodies. Referring to bilingualism, certainly there is no problem with that.
Senator Nolin: My questions are leading to the preamble and opening your arms to the reality of Canada. That is the nature of my question.
Mr. Laughton: We would be pleased to look at the language, and assume there is not a problem.
Senator Ringuette: I am reading the last ``whereas'' on the first page of the bill:
And whereas by that same chapter, L'Association des Scouts du Canada was incorporated with its head office in Montreal, in the Province of Quebec, to meet the special needs of the French-speaking Roman Catholic youth . . .
I side with Senator Nolin on this one. What are the particulars of the Scouting movement, particularly in the provinces of Quebec, Manitoba and New Brunswick?
Mr. Laughton: I cannot speak to that. I do not act for les scouts. I do not know the background to that. That is what is in chapter 68 by which they were incorporated. It recites what is in that other legislation. As an explanation as to what it means or how it got there, I am not qualified to speak to it.
Senator Ringuette: In practical organizational situations, what you are indicating to me is that the anglophones of New Brunswick and Manitoba would deal with your status, and that the francophones of New Brunswick and Manitoba would be dealing with the L'Association des Scouts du Canada?
Rob Stewart, Executive Commissioner and Chief Executive Officer, Scouts Canada: We run bilingual programming and the young people in those provinces would have a choice. We have some French programs in Quebec.
Senator Ringuette: Are they bilingual also?
Mr. Stewart: Yes, and also in New Brunswick. I believe we might have one group of les scouts in Manitoba, but we can offer bilingual programming in those provinces.
Senator Jaffer: It has been argued that this bill will entrench something with which many within the movement disagree. Do you believe this bill will hinder the ability of members to change the bylaws?
Mr. Laughton: No.
Senator Baker: The testimony that you have given is basically in the summary of the bill, that is, that this bill consolidates, updates and makes other technical and incidental changes to the administration of its affairs.
Mr. Laughton, the previous witnesses said that the administration we are putting into statute is patently unreasonable, that the decision-making process is unfair and flawed, and further, that in any consolidation one of the factors that should be considered, which was not, is what they call the ``democratization of the administration.''
We have heard two completely different presentations dealing with two completely separate subjects. Have you any comment to make on the previous presentation as it relates to their right to question this legislation?
Mr. Laughton: I would never question the right of anyone to question and discuss. I listened to the comments, particularly of Mr. Claxton, with considerable interest, as I am sure you all did.
You used a turn of phrase which suggests that we are putting into this bill, or in some way reflecting in this bill, a process that will cause concern, lack of democracy and so on. As I mentioned earlier, the bill does not affect the management and operation of Scouts Canada. The bill of 1914 said the same thing this bill says, that Scouts can pass bylaws for the management and operation of its affairs. That has continued since 1914. Pursuant to that, a bylaw was passed and duly enacted after lengthy discussion. That bylaw refers to the management and operational process.
With all due respect to SCOUT eh!, who are a welcome voice because one always wants to be challenged in such matters, the preponderance of the 20,000 adult Scouters in Canada are operating under this bylaw without dissension or concern. Others do have concern, and we welcome discussion on it, but this bill in no way imposes anything on them or takes anything away from them.
The bylaws of the corporation were enacted in 2003. After a lengthy process, that is what Scouts Canada duly enacted as a bylaw in accordance with Industry Canada's guidelines and directions. That is the way it works. People will always disagree.
Senator Baker: That is not the question I asked you.
Mr. Laughton: I apologize if I did not understand it correctly.
Senator Baker: It is a simple question. We had a presentation prior to yours that dealt with a question of the administration, as it presently exists, as this bill purports to consolidate, which they consider to be patently unfair and unreasonable in its decision- making. My question to you was whether you have any comment to make on that. Your response was that this is what is already in existence; there is no change. That is fine, but how do you respond to someone who says that what we already have is patently unreasonable?
As you know, patent unreasonableness is a good reason in law to overturn any decision.
Mr. Laughton: I thought I had answered that question. It would be the same answer. We are not proposing to do anything through this bill that will in any way affect the concerns of Mr. Claxton and his group. The bill proposes three simple changes.
The objections are raised with membership voting and where everyone is. Industry Canada says membership, that is, how you become a member, how you vote and so on, must be dealt with in the bylaws. The bylaws say that this is the way the membership will work. The bylaws say, as Industry Canada permits, that some will have votes and some will not. It is entirely in accordance with law. It has been duly enacted and has nothing to do with the bill before us today. There is an ongoing continuing and healthy debate on this in Scouts and it has been raised here today.
In my view, we are not proposing that with this bill.
The Chairman: Mr. Laughton, do you believe that Bylaw No. 2 is in accordance with modern good corporate governance practices?
Mr. Laughton: I do. I consider it responsive to good corporate practice and to the Industry Canada directive to which I referred you earlier.
Senator Joyal: If I understand your interpretation of clause 13(e) of the bill, it is only section 1 of Chapter 68 of the Statutes of Canada that is repealed.
Mr. Laughton: Yes, senator.
Senator Joyal: All the other clauses of the bill are continued according to your interpretation?
Mr. Laughton: Yes, they are. When it was agreed, in our discussions with les scouts and the law clerk, that the section would be deleted, the law clerk asked about renumbering the sections. Les scouts felt, and the law clerk had no difficulty with it, that people were so familiar with the existing legislation that it would be best to remove one section but leave the others numbered the same.
It is the only deleted section. It was deleted because it provided for a French name for scouts, and Scouts has undertaken with the law clerk and with les scouts that if Parliament sees fit to enact these amendments, it will not use a French version of its name.
There is no translation now of Scouts Canada, as has been the case for in excess of 10 years. By resolution of the board of governors, delivered to the law clerk and to les scouts, if Parliament sees fit to pass this bill, there will be no French language used in order that there will be no confusion between the two organizations.
Senator Joyal: In other words, everything that is in the statute of 1968 is continued?
Mr. Laughton: Yes, save for section 1.
Senator Joyal: I will use as neutral a word as possible. There are some discrepancies between section 4 of the statute of 1968 and clause 10 of this bill in terms of exclusive and sole ownership of your emblems and symbols.
Between paragraph (a) of section 4 and paragraph (c) of section 4, there is a discrepancy. In section 10, you have the sole and exclusive right, while under section 4 you just have the authority under the act to fabricate or produce those emblems and symbols and all the other elements such as vestments and garments that identify the association members. Could you review that and come back to us on it?
Mr. Laughton: Section 10 of the bill before you first appeared in the legislation relating to Scouts Canada in 1917. It was in existence at the time les scouts was incorporated in 1969, and there have been no difficulties arising in respect of any emblems or usages. Les scouts use the French language with their symbols and Scouts has undertaken not to do that in the different designs and whatever. In consultation with each other, there has been no problem, but this again is not a new provision. It was there since 1917 for Scouts and existed before les scouts was incorporated. In practice, there has been no difficulty.
Senator Joyal: Let me go on to the next question. Part III of the Corporation Act applies to non-profit corporations. As you know, the structure of Part III for not-for-profit corporations provides that normally the membership elects the board, and then the board elects the executive. This is the normal structure. That is the philosophy of memberships. It pertains to each association to determine who is a member and defines the voting rights and qualification of members and so forth. That is according to the guidelines, as you have said, of Industry Canada.
Here, we are in the peculiar situation. In fact, according to the class of membership, the large majority of the ordinary members get only three representatives on the board, and the board itself can determine the majority membership of the board. If you look on page 2 at paragraph (f) on voting members, they are the honorary members that are voting, the honorary officers that are voting members, and at subparagraph 5, you give yourself the capacity to appoint 12 of them.
The Chairman: It is multiple voting shares.
Senator Joyal: It seems to me that in fact the voting members have the capacity to control the majority of the members, while in fact the large majority of the ordinary members do not have the capacity to be represented in a reasonable number in comparison with the other members of the board.
The Chairman: It is like many major corporations in Canada today, Senator Joyal.
Mr. Laughton: Senator, forgive me if I did not hear properly, but you mentioned section 2. Section 3 also deals with voting members. Honorary officers and members are included, but you will see voting members include three representatives, one of whom must be a youth member from each council, and the councils have been structured across Canada to serve Scouts. You will see those listed in Schedule A, the last page to the bylaw. If you look there, you will see three councils in British Columbia, Northwest Territories, Alberta, all the provinces, and eight in Ontario given its size. We have, as voting members, representatives from each of those organizations.
I do not want to be a broken record, but we come back to the point of the council structure, the organization and the consultation where they attempted to get organization in a very large volunteer group. Amongst the senior executives of Scouts Canada, there is one paid person, a CEO, as you would expect. None of the service providers charge fees. They tried to get some organization or governance that could work in today's business environment and make things go forward, and a proposal for a new bylaw came forward. That bylaw, as I said, was consulted on for over a year. Many changes were made to it, but it was duly enacted by Scouts Canada. You will see here that your voting members include the representatives from these various councils in Schedule A, and it is a comprehensive list. It is not just honorary officers electing themselves.
Senator Joyal: I am not saying that. I have no problem in principle with honorary officers being part of the board members. Normally they do not have voting rights. I do not want to talk about myself personally, but I am an honorary member and officer of many non-profit organizations, but I do not have the right to vote. I can voice an opinion, but when it is time to vote, I do not have the right to vote. I am honorary.
Here I see a difference that according to article 2, paragraph 2, ``the number of honorary officers shall not at any time exceed 12.'' Of course, they are voting members. Then I ask myself, in terms of balance on the voting boards, is the spirit of Part III of the Corporations Act in terms of membership whereby the members elect the board and then the board elects the executive, reflected in the particular structure that you are proposing in the bylaw? That is essentially what I am trying to understand.
The Chairman: May I ask that you keep your response short? We are 25 minutes overdue, and Senator Milne has a question as well.
Mr. Laughton: If you take the Schedule A list and multiply all those councils by three, and then you measure it against the 12 honorary officers, the proportion is within that.
Senator Di Nino: Sixty versus 12.
Mr. Laughton: ``Honorary'' was a subject of lengthy debate. I was an honorary counsel. It was felt that, with my involvement, I should have a vote. They felt that others who were benefactors or who had long interest in Scouts or were from the business world should have a vote, but they were not prepared to be on executives, and this was a way to recognize them and get the value of their experience.
Senator Milne: My question really follows along the same lines, because I agree. Our previous witnesses really did agree that this is a matter of the bylaws not working properly. It is not a matter of this particular act; it is the bylaws. When I look at this, I become very concerned about this circular diagram, because that is really what it is.
The Chairman: Have you seen that, Mr. Laughton?
Mr. Laughton: No.
Senator Milne: How do ordinary members, the 130,000 ordinary members, break into that circle? As a bylaw, that is fine. Good corporate governance is fine. This bill is designed according to good corporate governance, but I would like to see a little more democracy and voice from the bottom up within the organization. That has nothing to do with this particular bill we are being asked to pass, but it is a very strong suggestion. I do not see how an ordinary member of Scouts Canada can break into that circle. I do not see how it can be done, because these three voting representatives per council are selected by the council commissioner, the deputy commissioners and the area commissioners. They are not voted in; they are selected.
Mr. Laughton: I know time does not permit, but if it did, the chairman and chief commissioner of Scouts is on my right side and can deal with that.
The Chairman: Mr. Armstrong, would you like to respond?
Glenn Armstrong, Chief Commissioner, Scouts Canada: Thank you for the question. In our bylaws, the three voting members are to be elected within their councils. As you probably heard at the last meeting, I have been a bit of a rebel on this particular bylaw as well, and the challenge is that we have found that, a number of councils across Canada do not clearly understand the application of that particular clause in our bylaws.
In fact, at our annual general meeting last weekend that was one of the issues that we dealt with. There are 20 councils; 17 of them are actively involved in applying that and three are not. I am dealing with those three that are not, through a desire on their part to have some clearly defined processes so there can be no debate over how it should have happened in their councils.
I agree that there is a challenge. I do not totally agree with the circular diagram, but I see how people could perceive it to be that way. Perceptions, as we know, are often reality.
The Chairman: Mr. Armstrong, Mr. Laughton and Mr. Stewart, on behalf of the committee I would like to say thank you very much. Mr. Stewart, thank you for your second appearance on this bill and coming before us this afternoon to answer some difficult questions. Your responses are helping us in our deliberation of this bill.
Honourable senators, this is our second meeting in relation to Bill S-213, an act to amend the Criminal Code in relation to cruelty to animals.
The purpose of this bill seems straightforward. It is designed to amend the sections of the Criminal Code dealing with cruelty to animals to increase the penalties for the offences found therein. However, as interested parties know and, more specifically, as many members of this committee know, there has been significant action in this area in the last few years, and it is a matter that has been rather controversial to say the least.
A number of bills have been introduced in Parliament to update the animal cruelty provisions which date from the first codification of the Criminal Code in 1892. These bills include Bill C-17 in 1999; Bill C-15 and Bill C-15B, Bill C-10 and Bill C-10B, Bill C-22 and Bill C-50; none of which has received Royal Assent. The latest bill from the House of Commons, Bill C-50, would create a new section of the Criminal Code to deal with animal cruelty, thereby removing this area from the section of the Criminal Code dealing with property. On November 9 we heard from the Honourable Senator John Bryden, the sponsor of this bill.
Today, honourable senators, we have two panels of witnesses. Before us is the Canadian Veterinary Medical Association, the national body serving and representing the interests of the veterinary profession in Canada. It promotes public awareness of the contribution of animals and veterinarians to society. They are represented today by Dr. Boutet, President, and Dr. Alice Crook, past chair of the CVMA Animal Welfare Committee. With them is Mr. Greg Farrant, the government relations manager with the Ontario Federation of Anglers and Hunters. The federation is one of Canada's leading conservation organizations. It is a non-profit registered charity dedicated to protecting woodland and wetland habitat, conserving our precious fish and wildlife stocks and promoting outdoor education. I would like to thank Mr. Farrant for his cooperation in appearing at this time.
Dr. Paul Boutet, President, Canadian Veterinary Medical Association: Good afternoon. I am Dr. Paul Boutet, President of the Canadian Veterinary Medical Association. I am here representing more than 10,000 veterinarians in Canada. I am also a private veterinary practitioner in Riverview, New Brunswick.
Animal welfare advocacy is one of CVMAs three main priorities. Through its animal welfare committee, the CVMA concentrates its efforts on developing guidelines and standards that address the welfare, humane treatment and care of animals.
Basing our position on science, the CVMA has played a leading role in establishing policies and directives for animal owners, farmers and industry groups. Over the years, the association has formulated informative position statements on animal welfare issues of national and international importance.
[Translation]
The CVMA Animal Welfare Committee consists of a dynamic group of not only our veterinary experts, but also representatives from key national organizations including the Canadian Federation of Humane Societies, the National Farm Animal Care Council, the Canadian Council on Animal Care and the Canadian Food Inspection Agency.
[English]
International trade organizations such as the World Organization of Animal Health, formerly the OIE, are giving more importance to the humane handling practices in exporting countries as trade requirements. This is increasing social pressures for nations to be better stewards or custodians of our animals' welfare.
The importance that people place on their pets was amply demonstrated in New Orleans with Hurricane Katrina, where owners would forsake their own safety rather than abandon a loyal and lifetime companion.
We all agree that our legislation urgently needs to be remedied. When Canada introduces a new bill, let us do it right.
The CVMA has been and remains a strong supporter of Bill C-50, or the new Bill C-373, and we are here to express our objections to Bill S-213. We believe that Bill C-373 strikes a good balance between protection of animals and protection of lawful activities such as: fishing, hunting, trapping, farming and scientific research.
With me this afternoon is Dr. Alice Crook, an expert on animal welfare, and coordinator of the Sir James Dunn Animal Welfare Centre at the Atlantic Veterinary College. Dr. Cook will elaborate on our views.
Dr. Alice Crook, Past Chair of the CVMA Animal Welfare Committee, Canadian Veterinary Medical Association: In the interest of conserving time, I will highlight sections of our brief. I will start on page 4 with a bit of background about animal abuse as part of the larger picture of violence in our society.
Animal abuse is an important social issue affecting animals, families and communities. Researchers have recognized and documented that violence towards animals is a component and a symptom of child, spousal and elder abuse, as well as an indicator of the potential for increasing violence and dangerousness in offenders.
For example, in a 2004 Canadian study, 56 per cent of pet-owning women, seeking refuge in women's shelters in Calgary, reported that their abuser had threatened or harmed their pet. Of those women with children and pets, 65 per cent believed that the children were aware of the abuse and were impacted by it.
The CVMA believes that effective federal animal cruelty legislation is an essential tool in helping humane societies and law-enforcement agencies to address animal abuse, and, in turn, interrupting the cycle of violence in our communities.
I will now talk about what we see as the shortcomings of Bill S-213.
As stated, the sections of the Criminal Code dealing with animal cruelty, 444 to 447, were originally enacted in 1892, with minor revisions in 1956. There is a dire need to increase penalties and modify the out-of-date language that leaves gaping loopholes. However, other than including provisions for increased penalties, Bill S-213 contains the exact same wording for offences as the current Criminal Code legislation. Many of the problems with the current legislation are retained in Bill S-213.
There is different protection for different animals. Bill S-213 maintains the outdated and confusing language of the original legislation and protects different types of animals differently. Cattle are in a different section, 444, from ``dogs, birds, or animals, other than cattle,'' which are in Section 445. This is clearly illogical.
The property section of Bill S-213 maintains the animal cruelty provisions in the property section of the Criminal Code. This does not reflect current societal views that cruelty against animals is a crime in its own rights, not merely a crime against property.
The CVMA believes that all animals should be afforded protection from abuse under the law regardless of their status as property. The basis for offering this protection is that all animals can experience pain and fear. In the property section, the law would seem to ignore feral or stray animals whether domestic or wild. The CVMA believes that treating animal offences as property offences has resulted in inadequate sanctions and a lack of deterrence for those committing animal abuse.
Another area of concern is wilful neglect. Bill S-213 maintains the wording of the current offence of wilful neglect. The requirement to show proof that a person intended to neglect their animals makes it extremely difficult to lay charges in cases of neglect, even where the animals have starved to death. Unfortunately, this all too often applies to neglected farm animals. This has been a problem in getting convictions.
Bill S-213 does not address brutally or viciously killing an animal as a form of violence. Society recognizes that particularly violent, heinous treatment of animals should be a criminal offence, whether or not the animal dies immediately. For example, several years ago, two men were charged with beating their dog with a baseball bat but were not convicted because the dog died on the first blow.
Bill S-213 does not make it an offence to train animals to fight other animals, nor to receive money for the fighting of animals. Society has a stake in addressing these issues as these activities are commonly associated with organized crime.
In contrast to Bill S-213, Bill C-373 addresses each of these important issues.
There is a bill introduced in the House of Commons at the end of October, Bill C-373. It is the same as the previous legislation, Bill C-50, which died when the Liberal government of Paul Martin fell in January 2006. This legislation has received careful scrutiny in the House of Commons and the Senate over many years, going back to 1999. Extensive consultation has taken place with animal industry groups and many organizations, including the CVMA, which provided input at the respective standing committee stages. That led to some amendments.
As you know, a previous version of Bill C-373, Bill C-10B, came close to becoming law in 2003. It was widely supported by all the parties in the House of Commons but did not pass the Senate and receive royal assent before an election was called.
Like Bill S-213, the amendments in Bill C-373 would replace Sections 444 to 447 of the Criminal Code and would increase penalties for those convicted of animal cruelty.
In contrast to Bill C-213, C-373 would move cruelty to animals out of the property section of the Criminal Code, thus providing protection for stray and wild animals as well as owned animals. For example, cruelty to a stray cat would be prosecuted on the basis of the cruelty involved and the suffering of the cat, not on whether there could be ownership established of the cat.
Stray and wild animals have virtually no protection under current legislation. That makes it only an offence to kill owned animals without a lawful excuse. Bill C-373 would make it an offence to kill any animal without lawful excuse.
The CVMA believes that Bill C-373 strikes the appropriate balance in addressing cruelty to animals as a crime of violence, not merely a crime against property. At the same time, it makes it clear that lawful and humane practices regulated or authorized by federal or provincial legislation or applicable codes of practices, such as normal agricultural practices — hunting, fishing, trapping and animal research — will not be affected. Bill C-373, like C-50, also affirms traditional Aboriginal hunting and fishing rights.
In conclusion, we have two recommendations. The CVMA recommends that the Standing Senate Committee on Legal and Constitutional Affairs reject the amendments in Bill C-213 as inadequate. CVMA further recommends that the committee support reintroduction of Bill C-373, which embodies the amendments in the former Bill C-50.
Greg Farrant, Government Relations Manager, Ontario Federation of Anglers and Hunters: On behalf of the Ontario Federation of Anglers and Hunters, the largest non-profit, charitable, conservation-based organization in the province of Ontario, with 80,000 members and 650 member clubs across the province, I thank you for providing me with an opportunity to appear before you today to comment on Bill S-213 introduced by Senator Bryden on April 26, 2005.
I preface by remarks today by saying that I did not come before you with the intention of discussing specific clauses of Bill S-213. I have come here today to give you a general perspective on why we support the bill and to make a few remarks about the debate on the subject of animal cruelty as it has occurred over the last few years from the perspective of the outdoor community in Canada.
Unlike many of the honourable senators on this committee, I am not a lawyer, and although we have had the benefit of expert legal advice in the past, I claim no expertise in this field. All members are skilled legislators who have intimate understanding of what the bill does and does not do, and I will not waste your time in that regard.
While my primary role here today is to represent the federation that I work for, I would like to point out that my comments are representative of the positions held by our colleagues at provincial and territorial wildlife federations across the country who collectively represent approximately 300,000 members. Our views on Bill S-213 are also shared by a number of organizations across Canada representing others in the lawful animal use community who will no doubt make their own views known at some point in the process.
The OFAH and our sister federations share the view that all right thinking people support increased fines and penalties against people who abuse animals. Because of this, we strongly support the intent and thrust of Bill S-213. In fact, several years ago, this federation and the Ontario Farm Animal Council supported and helped pass a private member's bill in the Ontario legislature that enhanced the ability of the SPCA to pursue increased fines and penalties against certain people who abused animals, most notably illegal puppy mills.
The last time I had the privilege of appearing before this committee was on February 5, 2003, to speak to our opposition to Bill C-10B, the third of five animal cruelty bills introduced by the former government. Many of the current members of this committee were also members of the committee at that time and will recall the strong emotions around that and the other four legislative attempts that have been made by the government of the day to amend the Criminal Code with respect to animal cruelty.
As you know, previous attempts to pass changes to the Criminal Code on animal cruelty have not succeeded. This is due in part to the fact that each of the previous bills contained language that went far beyond the government's stated intentions. Because of this, these bills posed a significant threat to anyone engaged in fishing, hunting, trapping, animal-based agriculture and medical research — something that Bill S-213 does not do.
Over the past seven years, each time a new animal cruelty bill was introduced, the government of the day claimed that everything that was lawful at the time would still be lawful after the bill was passed. However, based upon legal opinions written by three eminent law firms engaged by ourselves and others in the community, not only did each of the previous bills threaten the viability of lawful animal uses, but if passed they would have also given the animal rates community the means with which to make these same communities targets for frivolous and vexatious law suits.
The potential for litigious attacks on the outdoor community and others is real, based not upon suspicion and hearsay but instead upon comments by prominent animal rights organizations and their legal counsel, who suggested quite openly that, once previous bills such as Bills C-10, C-15, C-17, C-22 and C-50 were passed, they intended to test the legislation in court and vigorously pursue legal action against anglers, hunters, farmers and medical researchers engaged in legal and heavily regulated activities. In other words, if you cannot win in the court of public opinion, get the laws changed so that you just might win in a court of law.
Our concern was further reinforced by the following comments of a prominent animal rights legal counsel in the Montreal Gazette of March 18, 2000:
. . . over the next 10 years, the changes will be subtle, masquerading as animal protection and continuing to develop as a moralistic adjunct to human rights until some of them at least get their own entrenched in law. We'll see the development of animal rights . . . through incremental changes in case law and judges attitudes . . . we need legislative protections and legislative change but you take what you can get. We're just at the beginning of the movement . . .
Each time a new bill has been introduced, both the minister and legal counsel for the Justice Department has attempted to convince both Parliament and groups opposed to the legislation that the government's only intention was to amend the Criminal Code to provide for increased fines and penalties against people who abuse animals and to clean up some of the language contained in sections of the Criminal Code pertaining to animal cruelty — in the government's words, ``to clarify these things so that everyone could have a better understanding of what the law actually required.''
If that was true and the main objective of the government of the day was to respond to what they viewed as a need for tougher sanctions against individuals who committed acts of animal abuse and not to create increased or expanded offences, this could have been achieved other ways. There is a good chance that most groups who opposed all five of those bills would have been onside because of our genuine belief that true cases of animal abuse should be dealt with harshly.
Instead, the previous bills proposed dramatic changes in the current law, both in intent and in language, a law that has been in existence for over 100 years and stood the test of time. Included in those bills were ill-defined definitions and profound changes in law that would drastically alter the status quo, no matter what the government of the day claimed. This was pointed out in the case, for instance, of Bill C-10B by our legal counsel, Mr. Michael Code of the firm Sack Goldblatt Mitchell, a former Assistant Deputy Minister for criminal law of the Province Ontario. During his testimony before this same committee on Bill C-10B, Mr. Code demonstrated quite conclusively that the bill did indeed change the law and that for the government to suggest otherwise was disingenuous.
For example, Bills C-17, C-15B, C-10B and C-22 and Bill C-50 included changes that would have removed animals from the property section of the Criminal Code which, in our opinion, and in the opinion of our legal counsel, was the first step towards giving animals a similar status to human beings under the Criminal Code.
Animal rights groups commented openly that this and other changes in previous bills would allow them to use SPCA officers, who under the law qualify as peace officers, to lay private prosecutions. While some of the test cases that have previously made their way into court were thrown out, the mere laying of charges and the need to retain counsel and mount a defence can prove costly in terms of time, money and one's reputation.
While this all sounds very alarmist, it is a trend, which has been witnessed in other jurisdictions where legislation has been introduced that would give animal's equal standing to people in the eyes of the law.
As you know, Bill S-213 does none of the above. It clearly and concisely provides for increased fines and penalties against animal abusers by increasing the maximum fine and jail terms for anyone convicted of this crime. At the same time, the bill retains many current sections and offences under the Criminal Code, which leads to a certainty of interpretation due to a well-established body of case law that exists under the current provisions against animal cruelty.
It is this important distinction that makes Bill S-213 more closely aligned to the stated intentions of the previous government and the Department of Justice.
Make no mistake about it; the animal rights community will not be satisfied until it has the opportunity to prosecute anyone who, in its opinion, commits animal abuse. This includes anyone engaged in many legal heavily regulated activities like angling, hunting, trapping, farming and medical research. The animal rights community's definition of what constitutes animal abuse goes far beyond what you or I might understand and is based upon an opposition to activities like fishing or some accepted agricultural practices. The animal rights community will not rest until it has dealt with these sectors of our economy and dealt our heritage activities a mortal blow, either in the political or legal arena.
In this country angling, hunting and trapping are considered by many to be heritage activities and are recognized as such in law by five provinces. At the present time, there are approximately 8 million licensed anglers in Canada, and several hundred thousand trained licensed law-abiding hunters, including over 400,000 in the province of Ontario alone, who comprise a significant number in terms of the overall population, to say nothing of those engaged in the practice of farming or medical research. According to the government's own figures, sport fishing alone in Canada contributes almost $7 billion annually to the Canadian economy, and when combined with expenditures on hunting and trapping, that figure rises to $10 billion.
We firmly believe that the existing penalties for abuse of animals are in adequate. We agree with this. Senator Bryden's Bill C-213 is a substantial improvement over the status quo and will advance the protection of animals. It does so by responding to the demand by Canadians that penalties for animal cruelty offences reflect the nature of the crimes.
The bill achieves the often-stated intent to raise penalties for those who abuse animals. Bill S-213 will quickly address penalty deficiencies, which is a major weakness in the current law, and will finally give the courts the tools to sentence persons convicted of criminal offences against animals to meaningful jail time.
We believe that the goal of enhancing and broadening the penalty provisions under the Criminal Code, increasing penalties up to five years for acts of animal cruelty and increasing maximum fines from $2,000 to $10,000 should be supported by everyone who is concerned with reasonably improving the law with this issue.
The OFAH and our sister federations support this bill, which has also garnered significant support for major groups in other areas of the animal-use community like the Canadian Cattlemen's Association, the Canadian Federation of Agriculture and our colleagues at the Canadian Sportfishing Industry Association.
The current government declared that it would support Senator Bryden's bill. The will to affect change clearly exists. The debate around this issue has dragged on for seven long years, and Senator Bryden's attempt to propose a solution should be applauded. The failure to pass this bill will mean that the debate will continue and the best opportunity to achieve something of value will be lost.
Once again, I thank all of you for your time, your courtesy and for affording me the opportunity to speak to this bill on behalf of the Ontario Federation of Anglers and Hunters, and millions in the outdoor community across this country.
The Chairman: Thank you for those introductory remarks, which not only looked at this bill but previous iterations that have come before this committee.
Dr. Crook, do you agree that this bill, the so-called Bryden bill before us now, while albeit not taking into consideration all of the changes you would like to see in definitions of such things as ``animal,'' would you not feel it is, in fact, a good first start?
Dr. Crook: Frankly, no. If it took 100 years to change the legislation since 1892, I do not like to think of it as a first start. I like to think, as Dr. Boutet said that when we develop new legislation around animal cruelty we would do our best to create good legislation from the get-go.
I forgot to point out that as an appendix to our brief we have a table as to the flaws in the current legislation and a comparison of how Bill S-213 and Bill C-373 handle them. It points out really clearly the many areas that are not addressed in Bill S-213. We agree with Mr. Farrant that the penalties need to be increased and both bills address this, but there are many other important issues that Bill S-213 does not address at all.
Senator Stratton: I recall this committee really struggling to try to achieve that end and it did not happen. I look at this, and would it not be achieving the achievable right now? That is really, in my view, what Senator Bryden wants to put forward. We have tried in the past to be all-encompassing and failed.
Dr. Crook: As you are no doubt aware, Bill C-373, as did Bill C-50, includes a few changes that were made since the last Bill C-10B that came so close to passing that expressly lay out the common law defences and affirmed Aboriginal rights. Then the very last clause which talks about legal justification that any activity that is governed by codes of practice or regulation is protected, and that is specified right in the act. That is something that is additional to the last legislation. I do not know if Mr. Farrant has a comment about that.
I guess our main concern is there is still no protection for many types of animals. The crime of violence against animals is a serious one in our communities because it is part of the larger issue of violence that we all want to address however, we can, and it is important to have effective animal cruelty legislation as one part of that crime.
It is not appropriate to have it in the property section and to only protect animals inasmuch as they can be identified as someone's property.
Senator Baker: On your last comment, that it only protects animals that can be described as being the property of someone; is that what you said?
Dr. Crook: I am not sure of the exact wording of it, but because it is in the property section, unowned stray animals are not protected against cruelty.
Senator Baker: There is much case law in every province, even in Prince Edward Island and New Brunswick, regarding such prosecutions. Not only that, there is a wealth of case law in each province. There are not many of them that impose the maximum sentence; I agree with you there.
Dr. Crook: There is case law, but my experience is the cases did not go to successful convictions.
Senator Baker: It was not because they were not protected. You say in your brief that wild animals are not protected. Did you say that?
Dr. Crook: Yes.
Senator Baker: In which province are wild animals not protected? You cannot kill wild animals in any province that I know of without having a legal justification for doing it, either in a licence or a requirement.
Dr. Crook: Yes. That would not change; anything that is carried out under lawful excuse now could still be carried out in the new legislation. I am talking about cruelty to wild animals outside of the normal activities like hunting, fishing, trapping, et cetera, which are covered by lawful excuse.
Senator Baker: In the last bill that you liked, I think the last bill that came before this committee, do you have any opinion at all on the great objections to what was in that bill? What objections brought the Canadian Jewish Congress and the Canadian Arab League before the committee with such objection to the proposed bill? These groups brought their lawyers with them and said this just cannot pass. Do you have any comment to make on that?
Dr. Crook: I have not read their specific presentations.
Senator Baker: You know they did that?
Dr. Crook: I know the gist of those arguments, yes. I have also read several very erudite legal opinions that say that any activity that is projected or is carried out through lawful excuse, so any activity that is governed by codes of practice or existing regulations, is just as protected under Bill C-373, or those other iterations of it as they are now. They would not be in more jeopardy than they currently are.
Senator Baker: In other words, you are not agreeing with the conclusions of the Canadian Jewish Congress and the Arab League organizations that made a legal presentation to this committee. You are saying you do not agree with their conclusions.
Dr. Boutet: We trust the Canadian legal system to do its job. We are not lawyers, but with the definition of ``lawful excuse,'' we expect that they will apply it properly, recognize what our legal and lawful activities are within this country, respecting religion or other rights, hunting and fishing. To us, with respect to claims made that frivolous litigation will be brought, I think the legal system is built in such a way as to prevent that kind of activity from happening.
Things that are properly defined today as ``legal activity'' — whatever they recognize — we expect those things will continue. We are trying to prevent those situations that are currently not legal activities from continuing. We want to enhance our ability to be able to stop these types of activities that are hurting so many animals. We want our country to become more aligned with current world trends to recognize the need for greater animal welfare laws. We also want recognition that having certain species independent from other species, cows different from dogs and cats, is illogical. An animal is an animal, regardless of whether it is a cow, a horse, a kangaroo, an elephant or a dog. We must recognize that. This bill, Bill S-213, does not recognize that.
Senator Baker: I yield to the honourable senator from Quebec. He has a supplementary, but I would like to ask another question after he has finished.
[Translation]
Senator Nolin: We have gone beyond generalities in our study of this bill. Everyone seems to be in agreement on the question of protecting animals against inhumane treatment. I do not think anyone seated here at this table would disagree with that statement.
[English]
We have to be clear about that. We are beyond that. We have spent seven years trying to find the proper solution. As my colleague Senator Stratton said, we are trying to achieve what is achievable for now. We know it does not satisfy what you want.
[Translation]
We have a fundamental problem — the matter of lawful excuse. We will take a look at this. I understand that you are not a lawyer, but I assume that you have read up a little on the subject. One of the arguments that we have advanced, one that comes to us from the Supreme Court, is as follows: if a federal law provides for a lawful excuse — as did the previous bill which is not before us and which you would like us to pre-approve — the Supreme Court has ruled that a provincial law is not lawful justification for carrying out activities prohibited under a federal law. That is one of the problems we must contend with.
[English]
One of our problems is that the Supreme Court is saying that if you have a legal excuse to an infraction of a federal statute, it must be within the federal statute, not in a provincial statute that regulates hunting and fishing. What do you do with that? If you can answer that question, that will solve many of our problems.
[Translation]
Dr. Boutet: This question has been debated by both Houses. The legal considerations were debated and all parties in the House of Commons agreed to endorse the bill as drafted and to refer it to the Senate.
Senator Nolin: You are not answering my question. We are trying to draft a bill that will withstand any court challenges. It is pointless for us to pass legislation that pleases us — in fact we have been trying for seven years to do that — only to have the courts inform us in six months' time that we have forgotten one thing — a particular 1998 Supreme Court ruling.
We would then have to start the whole process of studying the bill all over again. That would be a pointless exercise. We much prefer coming forward immediately with effective legislation to curb cruelty toward animals, legislation that will survive long past the 100th anniversary of the Criminal Code.
So much the better if our colleagues in the House of Commons found the bill to be satisfactory. However, after hearing from a number of experts, we concluded that the bill needed to be amended. And that is what we proceeded to do. The bill has gone back and forth between the House of Commons and the Senate. We have been trying to find a solution for seven years now. We are not content with hearing that MPs found the bill satisfactory. I am sorry, but we cannot disregard the ruling of the Supreme Court. If we do not uphold it, who will? If we disregard it, the bill will be adopted as it stands and in a few months' time, the courts will remind us that the Supreme Court has already ruled otherwise on this matter.
Dr. Boutet: Would penalties make the law more effective?
Senator Nolin: As far as penalties are concerned, clearly we will be sending a signal to the courts that we take the question of penalties very seriously. My colleagues talked about the light penalties handed down by the courts. We are not satisfied with this state of affairs. Over the years, we have expressed concerns about overly light penalties. Having said that, Senator Bryden and many of us felt that the question of penalties was the least of the bill's problems. So then, we felt that this part of the bill should at least be adopted. We will see what happens later.
We agreed on most provisions in the cruelty against animals legislation, including the new definition of animal — the first definition did not quite reflect the reality of the situation — and on a series of problems identified in the various bills. We have resolved our problems.
Three issues remain, including the notion of lawful excuse. Unless we include all lawful excuses prescribed in federal laws, including hunting licenses, fishing licenses, animal slaughterhouses and so forth, we need to draft the bill using appropriate wording that clearly reflects the fact that we all have the same objective in mind. I am receiving emails — I do not know if your friends are the ones sending them, but maybe you can tell them that I want the same thing they do, namely to curb cruelty toward animals. I have a hard time accepting that someone could accuse me of advocating cruelty toward animals.
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The Chairman: Senator Nolin, I will give him a chance to answer now.
Senator Nolin: I was answering his question.
Dr. Crook: First, neither I nor any of my friends would send you emails saying you were trying to promote violence against animals. Veterinarians would not express themselves in that way.
Senator Nolin: I leave that to you.
Dr. Crook: You mentioned the whole question of lawful excuse. One thing I find puzzling about this is that there is nothing in the current legislation that specifically protects activities such as hunting, fishing, scientific research, et cetera. They are only protecting inasmuch as they are carried out with lawful excuse. It is not expressed in the law, so nothing would change in that regard. Activities that are still carried out under lawful excuse that are not prosecuted under current legislation will not be prosecuted under the changed legislation. I do not really understand this point that there is a danger that many more activities will be prosecuted.
Senator Nolin: Maybe Mr. Farrant can explain that, because he was referring to the provincial legislation that is governing what he is trying to defend.
The Chairman: This is also a supplementary. Senator Baker still has the floor.
Senator Nolin: That is the heart of the problem, where we left it a year and a half ago.
The Chairman: We are dealing with Bill S-213. We are no longer dealing with the others. I would like us to be confined to Bill S-213. That is what we are talking about. Mr. Farrant, would you like to say something? Then I will go back to Senator Baker, who still has the floor.
Mr. Farrant: I appreciate that, Mr. Chairman. Obviously, given the comment you have just made, debating terminology like ``brutally and viciously,'' or debating ``legal excuse,'' ``lawful justification,'' ``colour of right,'' all these issues have been dealt with repeatedly over the five previous incarnations of this bill. We have not been able to come to a resolution.
Senator Stratton and Senator Nolin have both indicated on this particular bill, and I agree very much with the terminology used, that we should achieve the achievable. Forgive me for this analogy, but people who put kittens in microwaves or drag dogs behind trucks need to be stopped; they need to be dealt with harshly. That is what we are focussing on here, the people who commit abhorrent behaviour like that, behaviour that all of us in society as civilized human beings cannot tolerate. Bill S-213 goes somewhat down the road toward addressing that issue.
Quite correctly, Senator Nolin has pointed out it has focused on something, the penalties and fines and penalties provisions, that everyone can agree on, so why not move forward on that basis and at least achieve something out of the dialogue that has gone on for the last seven years and achieved absolutely nothing.
Senator Baker: The submissions we received from various organizations opposed to the previous animal cruelty bill contained some very convincing arguments. These are Canadian organizations. We were confronted with the problem stemming from the bill of people in the North hunting seals at a time when the fat content of the seals will not allow them to float if they are shot, so they must harpoon them. Of course, that would have been an offence under the previous bill and, as Senator Nolin said, we would have to amend the legislation to protect those hunters.
You are from Prince Edward Island and New Brunswick, and I believe that your organization was commissioned by the government to examine cruelty as it relates to the seal hunt. Am I incorrect in that? If so, what were your findings as they relate to the seal hunt in the Gulf of St. Lawrence and the majority of the seal hunt by rifle off Northern Quebec and Newfoundland? How would they fit into these pieces of legislation?
Dr. Crook: We were not commissioned by anyone to look into issues of cruelty in the seal hunt. We did it because of our interest in the area. The position statement of the CVMA on that is, when carried out by the methods currently in use in accordance with the marine mammal regulations, the seal hunt is humane. That is the main point. It is regulated by the marine mammal regulations. If the hunting is being carried out in accordance with those regulations, there would be no reason for it to be subject to prosecution.
Senator Baker: I presume there would be a list of things that would have to be complied with in order to ensure that animals are killed humanely. Is it correct that the list would include blinking reflexes and other strict requirements?
Dr. Crook: Yes.
Senator Baker: It is in that setting that you say that the seal hunt, if the regulations are followed, is a humane operation?
Dr. Crook: Yes.
Senator Baker: Did you examine the rifle hunt off Northern Quebec and Newfoundland?
Dr. Crook: Yes, part of our position statement is on the rifle hunt.
Senator Baker: How would that fit into this bill and the other bill that you are promoting? How would the killing of wild animals, in that case seals, fit into each one of these bills?
Dr. Crook: In both cases, it is governed under the marine mammal regulations, so under neither bill would there be reason for prosecution of seal hunters carrying out their activities in accordance with the regulations. If an individual did something very cruel to seals, such as beating them to death —
Senator Baker: How about harpooning in the North, as they claim they must do in order that the seal does not sink to the bottom of the ocean?
Dr. Crook: If it is in accordance with standard practice, it would not be subject to prosecution under the current legislation, Bill S-13 or Bill C-373.
Senator Downe: I very much enjoyed that last answer. As a supporter of the seal hunt and of fishers and hunters, I am pleased that the bill would have covered that provision.
The panel made a comment earlier about the support of the government for the current Bill S-213. I would like to have clarified as I may have misunderstood it. It is my understanding that the Justice Minister, Victor Toews, indicated in a statement on August 29, 2006 that he supports Bill S-213, and then two days later indicated that he would be prepared to supportBill C-50 as well. Therefore, the position of the government is that they would accept either of those two bills.
My concern with Bill S-213 is that, while we are increasing the fines, the prosecution is too weak for the fines to be effective.
I have seen a report that in 2000 there were 29,000 SPCA and humane society investigations. I learned that Crown prosecutors are reluctant to press charges but they must because the SPCA and the humane societies cannot do it on their own. Of the 29,000 investigations, only 167 were prosecuted and about 63 convictions were obtained.
I would argue that we are missing the point. Would you agree that by increasing the fines when we still have a flawed bill with weak penalties we are really doing nothing, that we are only paying lip service when we say that we are opposed to cruelty to animals and will do everything but prevent it?
Dr. Crook: I agree. You stated it very well. We tried to make that point, but did not do so as well as you have.
Senator Milne: My questions are along the same line but from a pragmatic point of view.
Dr. Crook, you say there is a dire need to increase penalties but you do not like this bill. Why are you objecting to these penalties?
I agree that there is a dire need to increase the penalties, which is why Senator Bryden has introduced this bill. You are advocating Bill C-373, which the Senate does not have before it at this time. It is a House of Commons private member's bill introduced by a Liberal member in the House of Commons. Do you think it will pass there? The government has said it does not support the bill. If it fails there, the government cannot bring in another bill in this session that says the same thing.
Why not pass this bill, get the penalties increased, and wait for an improved bill in the future? I strongly support this bill.
Dr. Crook: As Senator Downe pointed out, which we did not mention, I also heard that the Justice Minister had indicated that if there was legislation similar to Bill C-50 introduced, the government would support it. Bill C-373 has been introduced, so the government may well support it.
It comes down to the fact that the increase in penalties, without increasing the ability to prosecute offenders, will not accomplish what we want to accomplish. If we pass a bill that only increases penalties without addressing these other aspects that have been extensively researched and addressed over the last many years, we are missing our opportunity to improve the legislation as it needs to be improved.
Senator Milne: You are dealing again with what Mr. Farrant has quoted, animal rights groups commenting openly that this and other changes in previous bills would allow them to use SPCA officers under the law to lay private prosecutions.
I agree with the hunters and anglers on this. I have seen what the animal rights people have done to the poultry and dairy industries in Denmark. I am very concerned about that sort of activity taking place in Canada.
Dr. Boutet: If Canada demonstrates leadership in those areas, if we demonstrate that we are moving forward with effective and modern legislation on animal welfare and show that we are at the forefront of that, these people will not have the ability to prosecute in Canada like in countries where there is no legislation or weak legislation. There is no legislation similar to that in Canada.
Why is that? It is because we may have a different understanding or because we are already active in the area of animal welfare. We are already doing something to some degree. Many groups are trying anyway. However, the country needs to have at least one effective piece of legislation for all codes of practice, whether it be farm animal practice, kennel code practice, carrier practice or whatever. These are things that the CVMA is trying to promote in all of these different areas, encouraging people to show leadership and to look at animal welfare as a good thing for this country and as a good thing for all of us.
If all levels are working together, these groups will not have the ability to do that; they have not been able to do much in this country at this point. I do not think that is a risk. It is easy to be fearful of things that we do not know, but in the past we have been able to push back most of those efforts. Yes, it has happened in other countries, but Canada has a good judicial system and we have been able to keep things out.
Senator Milne: You have spoken then in favour of the present bill with increased penalties. You are saying it has worked.
Dr. Boutet: That depends on whether you feel a bill with increased penalties is an effective bill, which I do not think it is.
The Chairman: Dr. Crook, you wanted to add a comment to Senator Milne.
Dr. Crook: Yes. If animal rights groups wanted to bring prosecutions against poultry farmers or whatever for those kinds of activities, they could do so under the current bill. There is no exemption.
The Chairman: You would need an order from a judge to do so before you could do it under the code.
Dr. Crook: Yes, but you would still need it under Bill C-373; there is no difference. They would not somehow have easier access to be able to do those things. In fact, by making the offences more serious, there is more involvement of the Crown prosecutor at an earlier stage to ensure there is less likelihood of frivolous prosecution. There is no reason that Bill C-373 would make them more likely than either Bill S-213 or the current legislation.
Senator Milne: I disagree.
Senator Joyal: My first comment is about the chart on page 11. Under the ``Problem'' heading you refer to wild or stray animals. You state, ``However, there are no provisions applying to wild or stray animals, with or without lawful excuse.''
On November 9, the question was clearly put to the Senior Assistant Deputy Minister of Justice, Donald Piragoff, on the interpretation of section 445.1(1)(a) of the present code under the heading of ``cruelty to animals.'' The interpretation was submitted to him, and I quote from subsection 445.1(1)(a) of Bill S-213:
Everyone commits an offence who
(a) wilfully causes or, being the owner, wilfully permits to be caused unnecessary pain, suffering or injury to an animal or a bird . . .
The interpretation that Mr. Piragoff gave us was that section 445.1(1)(a) covers stray animals because the word ``or'' in the first line of the proposed bill clearly is a disjunctive. In other words, anyone who wilfully causes unnecessary pain, suffering or injury to an animal, whatever the status of that person to the animal, owner, guardian or caregiver, would have the responsibility under the Criminal Code of having caused unnecessary pain. In other words, the two situations are covered in the code.
I can also quote to you Mr. Piragoff's answers to the questions that I put to him concerning the Criminal Code. I quote from the minutes of that meeting when I said ``I would like to come back to the first point you made in answer to the question asked by our chairman. When you say that stray animals are covered by section 446(1)(a), the first part of (a) states: ``wilfully causes unnecessary pain, suffering or injury to an animal or bird . . . ''
The section has an ``or.'' In other words, you can be charged under the section, if you are the owner of an animal, or you have the possession of an animal, or you can be charged if you wilfully cause unnecessary pain.
If I understand your interpretation, that section of the Criminal Code allows prosecution of somebody who would be causing unnecessary pain wilfully to an animal that, for instance, he happens to find in a forest or a public place and for which he is not the owner. Am I right?
Mr. Piragoff's answered:
Yes, senator. There are two parts to (a), as you indicated. One part of that provision is a general provision talking about wilfully causing unnecessary pain. The other part of the provision — and it may be clearer in the French version — says that if you are the owner, you also have an obligation not to wilfully permit to be caused.'' You have a higher obligation as an owner.
That was our conversation at that time.
I do not want to create the perception that you can do whatever you want with an animal if you happen not to be the owner, because the code says ``everyone commits an offence who wilfully causes unnecessary pain, suffering or injury to an animal or a bird.''
Your chart should be qualified or restricted in terms of its interpretation of the status of ``wild'' or ``stray'' animals. I think that my colleague Senator Baker would quote jurisprudence where that can happen.
Do you care to comment on that?
Dr. Crook: I am interested to hear that, because I have not heard that before, namely, the clarifications by the gentleman you spoke about.
Senator Joyal: He is the Senior Assistant Deputy Minister of Justice.
Dr. Crook: What I know about the cases that I am aware of from our own Humane Society and some of the information Senator Downe referred to is that the prosecution and conviction of the cases of stray and owned animals are infrequent, or very negligible punishments are applied. You are right that we would need to reword that part in the chart, but I think there is still a real problem with lack of effective protection, that there are deterrents and consequences for abusing stray animals.
Senator Joyal: Let me continue with the word that you just used, which was the substance of my next question, namely, ``deterrence.'' One of the main objectives of penalty in the Criminal Code is to sanction a behaviour in the code that, in our society, is unacceptable. That is to say, someone should be ``punished.'' To an offence, there is a punishment. If I steal something that is worth maybe $2 or 50 cents, then there is a penalty in relation to the act I have committed, which a reprehensible act. The other aspect of the existence of a penalty is its deterrent effect. In fact, the new Government of Canada believes strongly in the deterrent aspect of penalties. That is why there is a group of bills in the other place that seek to increase the penalties on many offences. I do not quarrel reviewing those. That is part of our job here.
When you talk about increasing the penalty in Bill S-213 to the same level as that in Bill C-50, in my opinion you accept the deterrence effect in Bill C-50 but you do not accept the deterrence in Bill S-213. To me, the deterrence effect of the penalty increase is both a punishment and deterrence. I do not see the logic in your statement that this bill does not accomplish anything. It certainly accomplished something. I agree with you that it was not what you have on page five of your brief — that is, the list of new offences. I totally agree with you and I have some reaction on that if I have to take a stand on each and every one of those new offences. However, to deny in front of us that each of the new penalties included in Bill S-213 is exactly the same as those contained in Bill C-50 and in the proposed Bill C-373 is not logical.
Dr. Crook: I accept that. I did not mean to state that. If I did say that, I must have misspoken. I recognize that the increase in penalties in Bill S-213 and Bill C-373 are similar increases in penalties and they would have similar consequences of deterrence or punishment.
However, my concern is that there would be fewer prosecutions under Bill S-213 because these other problems exist, such as the whole issue of neglect. Often, there can be no defence of prosecutions and there have been cases with farm animals, for instance, that have starved to death. In the case of neglect, you cannot prove that someone intended to neglect their animals because it is seen as an accidental thing that they developed along the way. Bill C-373 addresses that. There is also the issue of brutally or viciously killing an animal. I think society has a very strong interest in recognizing that these are crimes of violence and they need to be addressed, even if the animal dies very quickly.
It is not that we do not think that the increase in penalties would be a deterrent; it is just that we do not think they could be applied nearly as effectively or in the cases where they should be able to be applied, as would be the case with the other piece of proposed legislation.
Senator Joyal: We wrestled with the implementation of the dictum ``le mieux est l'ennemi du bien.'' Many aspects of what you are proposing on page 5 of your brief fall under the idea of sense — for example, wilful neglect. However, we are presented with a series of other changes of which the implications are unknown, such the second one, the property section. If you ask Parliament to do everything at the same time in relation to that — well, you saw the difficulties we incurred over the last five years. To me, the pragmatic approach is to go on a step-by-step basis. Let us build on that consensus progressively so that we achieve, perhaps at the end of that evolution, the revolution that you would like to see happen in one initiative.
That is why I feel that this bill is appropriate. I would like to vote on it as soon as possible so that we can continue to look into the other points you suggested on page 5 of your brief and develop a consensus on those other sections that you would like to see added to the code.
It seems that now there are so many difficulties that we will not go where we want to go because we are trying to do everything at the same time, especially on the property sections. As you know, we have looked into other legislation around the world. This aspect is the most problematic one. I do not say it is impossible, but it is the most problematic one for many of the reasons that Mr. Farrant stated in his brief. That is, it will be used to go somewhere else and we do not know exactly where. Initiatives will be taken that we are unsure about and we want to consider that at this point in time.
The Chairman: Dr. Crook, I see you nodding your head.
Dr. Crook: I can see some of your points but I would ask you this: Considering how contentious it has been and how many years it has taken to get to this far, if Bill S-213 is passed, how willing do you think Parliament and the Senate will be to look at this subject again and look at other changes? Do you not think, as we do, that it is worth getting the bill into the best state we can before we pass it?
Senator Joyal: Look at the people around this table. Many of them are the ones who went through all the previous steps. I am ready to look at other aspects of changes that would express the consensus.
Senator Nolin: We will do it again.
Senator Joyal: We are ready to do this on the basis of what we have heard in the last four or five years.
Mr. Farrant: I want to point out something in a more pragmatic sense. If this bill is passed here in the Senate, it then goes to the other place and it must pass through the other place. There is a broad expectation — and I am not a prognosticator of electioneering — that there may be an election come spring. Bill C-373 is a private member's bill, which will make it even more difficult for it to move through both the House and the Senate by March or April. We have a piece of legislation here that is already making its way through the upper house and some strong indications have been given that there is a fair modicum of support for this bill in the other place. I would suggest that if we continue to scatter gun the approach and keep focusing on what could have been, should have been or might be and keep talking about Bill C-50 or Bill C-373 as opposed to focusing in very much on this narrow piece of legislation, we will end with nothing yet again.
The Chairman: That is understood. Several people have made that point. I think that is agreed.
Senator Stratton: I completely agree with Senator Joyal and Senator Milne. I still go back to achieving the achievable. This is kind of like Senate reform. We have tried Meech Lake and Charlottetown. Everybody shudders to think about going back there again, so you do it incrementally. That is achievable, we think. That is the way I look at this bill. It is a first step.
If you get this bill through, your worry is that the pressure will come off and government will not do anything. You are telling me that you would back off on the pressure to continue to improve the legislation? Is that what you are saying? I do not believe that for a minute. You would have this bill passed and then you would still push for further reform. You would push governments, of whatever ilk, for further reform. I fail to understand why you would would not accept this while still pushing for further reform in other bills that are in the other place.
The Chairman: Was this not a good first step? That was my first question to you. That is where we began.
Senator Stratton: Yes.
Dr. Crook: The CVMA and other groups would push for further reform, but I think there would probably be quite an unwillingness on the part of government to open it up again.
Dr. Boutet: That is our view on it.
The Chairman: On behalf of the committee, Dr. Crook, Dr. Boutet and Mr. Farrant, I want to thank you very much for coming here this afternoon and making these presentations to us on a short bill, but a bill that does increase penalties.
Honourable senators, we now have before us Dr. Bessie Borwein, a special adviser to the vice-president of research at the University of Western Ontario. She has served on many provincial and national university committees. Joining her this afternoon is the Canadian Federation of Humane Societies, the national voice of humane societies and societies for the prevention of cruelty to animals. They bring together those who work with and care for animals to promote respect and humane treatments towards all animals. They are represented today by Shelagh MacDonald, program director, and Mike Draper, acting CEO. Welcome to our committee.
Dr. Bessie Borwein, as an individual: Honourable senators, I thank you for the opportunity both to address you and to interact with you. As some of you know, we have met before. I have been here before. For me, it has been a wonderful experience to interact with a senator. We have had private conversations on that.
Although I come as a private individual, I do have the support of the university, and I am a long-time university administrator in various research bodies. There are great and grave concerns to the biological sciences, which include medicine, in what happens with regard to bills of this kind.
I am here to fully support Bill S-213 and to commend Senator John Bryden for the concise clarity of his bill, because it addresses the chief concerns of the great majority of Canadians who want to see greater penalties for wanton cruelty to animals and who want to see improved enforcement of those penalties. I also commend this bill because it leaves the cruelty to animals provisions in the section of crimes against property of the Criminal Code, where it has resided for over 100 years and where it resides in most other jurisdictions. I am not sure it is in all. That is a very important point, because we heard from the representative of the Ontario Federation of Anglers and Hunters, and we have heard repeatedly from lawyers we have consulted, that there are important consequences to moving the cruelty to animals provisions out of that section, and it also contains protections for medical science and medical researchers.
I want to make a general point that there is a great gulf between the vast majority of people who are interested in animal welfare — that is, the caring for animals and caring about animals — and animal rights, which is an extremist ideology. They really work in a fanaticized world in which eventually there will be a society where people will not use animals for their purposes. They are moving step by step to move animals toward what they call personhood and legal standing. Most of the animal rights organizations do not care for animals. The animal welfare organizations do that. We need them, but we really do not need the animal rights people. They are very rich. They have great financial resources. They work essentially to promote their ideology.
I would like to repeat what I have said here before, which is that in Canada, in biological research of all kinds, and medicine is just a specialized branch of biology, animals are well protected and guarded by the Canadian Council on Animal Care. It has clout and respect and international repute. Its assessments are very important. Researchers must meet their requirements in order to have funding from the major health charities and other funding bodies.
There is a great deal of background to this, and that is what I want to talk about. We in the medical research community — and I understand Senator Bryden — have received a number of letters, for example from the Canadian Federation of Humane Societies, the Council of Ontario Universities, the Association of Universities and Colleges of Canada, and the presidents of universities in support of this bill and for good reason, because we have all been subjected to an extraordinary amount of harassment from the animal rights extremists, which does not make it every day into the newspapers.
It is my view that the animal rights extremists sought out in Canada what they thought would be a soft, safe, catalyst jurisdiction to sever animals from property and thus help move their agenda towards personhood for animals and eventually legal standing. They hoped that this would be the model that they would use as a catalyst internationally for their cause. I wrote a document on this, which I will leave with you. They have even claimed in previous publications on previous iterations of the bills that have come before you and before Parliament that the passage of this bill will herald the emancipation of the animals, because, in the vocabulary of the animal rights extremists, the animals are our current slaves.
The context of this problem and of the impact of the animal rights activities is that the extremists are extremists and many of them are terrorists. If a terrorist is someone who pursues their agenda through acts of violence, then they are animal rights terrorists. None of them functions in isolation. They must have support houses somewhere. They must have either an active or a soft support constituency.
Why is research so important? It is very important for the health of Canadians and of our animals and for the training of the next generation of scientists, physicians and veterinarians. A great deal of private and public money is invested in the development of research. For example, this past November the federal government announced a grant of $6.9 million to support a bovine mastitis research network at the Université de Montréal. Bovine mastitis is clearly a subject of great economic importance and about which we do not know enough. We never know enough in science.
I am just so pleased to tell you that my granddaughter has graduated with distinction as a doctor of veterinary medicine from the University of Saskatoon within this last year. I see her textbooks in microbiology and physiology are exactly the same as we use in medical schools, because there is a unifying biology for the living kingdom.
There is a unity to the biological sciences; we share many diseases and are often afflicted by the same viruses and worms. Sixty percent of golden retriever dogs die of cancer. Cancer is a disease also of animals; it is a disease of animal flesh.
In my written submission, which I sent on ahead to this committee, I described the persecutions visited upon researchers, hospitals, universities, institutions and business companies by animal rights extremists mainly in the last 25 years and escalating. They include staged protests, thefts, threats, break-ins, vandalism, offensive graffiti including words such as ``murderer,'' destruction of labs, fire-bombing of cars at employees' homes, home visits — all of which are very frightening to the employees and their families.
We have seen in Canada the threatened poisoning of turkeys, the threatened poisoning of Cold Buster bars. Not only does this happen, but it disrupts the work of scientists and all those who work with them. One scientist I know particularly told me that the attack made on his sleep research on cats and kittens interrupted his research for a year.
The animal rights armamentarium has become more sophisticated with the targeting of those who do business with researchers and research institutions. This is what you might call secondary and tertiary targeting, and the intimidation has become so profound that recently the New York Stock Exchange refused to list the shares of Huntingdon Life Sciences, a large, private research organization.
Huntingdon Life Sciences, originally in Britain, has moved its headquarters to the United States. They have been persecuted for seven years with a well-laid plan by a body called Stop Huntingdon Animal Cruelty, an offshoot supported by People for the Ethical Treatment of Animals, PETA, which is a major extremist body with a lot of money, an income of over $20 million a year.
The attack against Huntingdon Life Sciences in Britain started with little protests that got worse: they hit the owner on the head and he had to go to the hospital; they went to the homes of the employees; they published where the employees' children go to school; they fire-bombed cars; and eventually they targeted the major bank and financial houses. The financial supporters were so intimidated in Great Britain that they withdrew their funding from Huntingdon Life Sciences and brought it to the brink of bankruptcy, at which point British Prime Minister Blair opened an account for the company at the Bank of England. He said that if this goes on, every research institution in Britain will leave. I have followed this saga over the years, and I will tell you later what has happened.
The Chairman: Are you able to give me an indication of how much longer your presentation will be? I want to hear as well from the Canadian Federation of Humane Societies.
Dr. Borwein: I want to tell you that on November 27 just passed the Montreal Gazette reported repeated, noisy, foul-mouthed protests outside the homes of two executives of companies that the extremists said were cruel to animals and distressed of course not only those people and their families but the neighbours.
All this has led to action. Britain, which has had to face this escalation, has learned that there is no placating fanatics and extremists, and in response it has brought in the Serious Organised Crime and Police Act 2005, which has passed, and has set up a national extremism coordination unit for the police. It is a criminal offence now to target scientists, research facilities or companies in the supply chain. I will not go into the details; you will have it in the written submission. The United States has now passed a major bill, the Animal Enterprise Terrorism Act, which provides some of that same protection because animal rights terrorism has become such a big problem.
For your interest, two of the animal rights terrorists have been in Canada to interfere with the seal hunt. One of them, Dr. Jerry Vlasak, is not allowed in the U.K. He was speaking on behalf of Physicians Committee for Responsible Medicine, a body put up by PETA. I ask you, does anyone know anyone who is for irresponsible medicine? That is a beguiling name. He said: ``I think for 5 lives, 10 lives, 15 human lives we could save a million, 2 million, 10 million non- human lives.'' He repeated that before an incredulous U.S. Senate committee.
Stephen Best, another animal rights fanatics who has been in Canada, has said, ``We will break the law and destroy property until we win. We are abolitionists. We do not want reform. We will fight and die if necessary to free the slaves.'' By ``slaves'' he means the animals. That is clearly incitement.
We must deal with the whole problem that as people we need to treat animals well. However, we do not need to work at placating extremists. It is our business to see that we behave humanely towards animals.
The U.K. and the U.S. have drawn a line against animal rights terrorism, which has been so threatening not only to researchers but to economic well-being.
Keeping crimes against animals in the property section of the Criminal Code is a matter of grave significance. On the basis of what I have said, I want to say how much I commend the Senate for its action, for its passage of what may be an imperfect but, as someone here said, achievable bill.
The Chairman: Those were Senator Stratton's words.
Dr. Borwein: Thank you. I also believe that legislation sets the tone. It may not achieve everything that everyone wants it to achieve, but the passing of legislation certainly sets a tone in society. I want to thank you very much.
The Chairman: You mentioned that you brought with you today a document you penned. What is the name that of document?
Dr. Borwein: I will leave the paper with you. I have called it ``Moving Animals Towards Personhood.'' It is about the attitudes and the approach the animal rights extremists take in their campaign to move animals towards personhood.
The Chairman: Our clerk will get that from you and we will circulate it to all honourable senators.
Now we will hear from the Canadian Federation of Humane Societies.
Shelagh MacDonald, Program Director, Canadian Federation of Humane Societies: Good afternoon. I want to make a minor correction: Mike Draper is acting CEO of the Ontario SPCA and formerly the chief inspector of the Ontario SPCA for many years.
The Chairman: I am sorry about that.
Ms. MacDonald: That is okay. Thank you very much for the opportunity to speak to you on this very important issue today. I will give you a brief background on our organization.
The Canadian Federation of Humane Societies, CFHS, is a national animal welfare charity formed in 1957, almost 50 years ago. It is actually the first and foremost national voice of humane societies and societies for the prevention of cruelty to animals, SPCAs, and we support our member animal welfare organizations across Canada in promoting respect and humane treatment for all animals.
I cannot emphasis enough that the CFHS is not an animal rights organization and does not espouse an animal rights philosophy. The animal rights philosophy believes that animals and humans are pretty much equal, and animal rights groups generally oppose the use of all animals for any purpose, no matter how humane, including keeping animals for food or even companionship. We do not believe that.
I will address some of Dr. Borwein's comments about animal rights organizations. Much talk about animal rights organizations has fuelled the debate on this issue over the years. Animal rights groups do not have any authority to lay private prosecutions. It is important to keep that in mind. As much as they might do many radical things, they do not have legal authority, the way SPCAs and humane societies do, to bring charges. We may want to talk about that later.
The animal welfare philosophy promotes the responsible and humane use of animals, reflecting the values of the majority of Canadians. The CFHS is an animal welfare organization that works to improve the welfare of companion, farm, research and wild animals, and for more than 20 years we have worked with various industry groups, government and other stakeholders in the development of codes of practice for the care and handling of various types of animals. We are also a founding member of the recently formed National Farm Animal Care Council that is working on developing a new system for codes of practice, mostly for livestock or for farmed animals.
We are a founding member of the internationally recognized Canadian Council on Animal Care, which is the organization that oversees the use of animals in research. It is world renowned. The CCAC supported the previous government's version of animal cruelty amendments, including taking animals out of the property section.
This is the second time that the CFHS has appeared before this Senate committee, and we are honoured to be here again. The federation has a strong historical connection with the Senate. A former member of this chamber, the late Senator Frederic McGrand, was a medical doctor by profession. He was the founding director of the Canadian Federation of Human Societies and our president from 1960 to 1965. He was one of the first to acknowledge and understand the link between cruelty to animals and violence towards human beings. In fact, Senator McGrand was the driving force behind a 1980 Senate report titled Child at Risk, which examined early childhood experiences, including animal cruelty and abuse, as causes of criminal behaviour.
The link between animal cruelty and violence towards human beings has been well documented over the last several decades. Many serial killers and other violent offender began their violent ways by torturing and abusing animals. A number of serial killers committed abuse to animals in their childhood. In fact, clinical evidence indicates that animal cruelty is one of the symptoms usually seen at the earliest stages of conduct disorder.
When the Senate debated this bill in June, Senator Nolin gave an extensive overview of the link between animal cruelty and domestic violence, citing important studies on this issue. He stated that children who mistreat wild and domestic animals are not all victims of violence, but the facts show that children who systematically abuse or torture animals are more likely to commit serious crimes when they become adults. He said that you were right not to accept all the proposals made before but that this bill before us now has the merit of having gained the approval of almost all segments of society.
I commend Senator Nolin for bringing forward that information about the violence link. However, I beg to differ with regard to support. I believe that the previous bill had far more broad support than does Bill S-213.
In 2003, Bill C-10B was supported by a very large coalition of industry groups as well as animal protection groups and was passed unanimously in the House of Commons. As you know, it was held up here in the Senate.
Unfortunately, Bill S-213 does not enjoy that level of support. Animal protection groups, including humane societies and SPCAs that are mandated as peace officers to enforce animal cruelty laws, are opposed to this bill because it does not repair the substantial flaws we have been talking about today.
As you know, the current legislation was enacted in 1892. There are some serious flaws in the legislation today that are maintained in Bill S-213. Wilful neglect is a huge problem, as is the difficulty of pursuing cases of abuse against wild or stray animals. Yes, they do come under certain sections of the bill, but they are difficult to prosecute.
Treating animal crimes as property offences is not appropriate in today's world. There are a couple of other things that were included in the previous government's legislation. I will not list them, as you have the submission before you.
Bill S-213 would not address any of those flaws, and that is why we cannot support it. We have talked at length about that this afternoon. We had a discussion with Senator Bryden in the spring and early summer. He admitted to us that it was only half a loaf. We do not think half a loaf is enough. We agree that we need harsher penalties. There is no question about that. No one has debated that. However, we feel very strongly about the need for changes to the offences, and that is the reason we are not supporting the bill. The fundamental problems — the technicalities, the wording problems, the loopholes — are too important to leave behind and continue to pass and further entrench 19th century law in the 21st century.
When he launched the discussion on his bill in early November, Senator Bryden indicated that his bill addressed the most serious deficiency, which is the sentencing provisions. We do not agree.
We believe that passing this bill now would make it extremely difficult to introduce more amendments at any time in the near future. I know that a number of you here have suggested that we should do this now and fix the rest later. I submit that it would be very difficult to do that. As you know, this issue has dragged on for some time.
The Chairman: Why would it be so difficult?
Ms. MacDonald: We are concerned that there might not be a continued appetite to look at another bill after one has already been passed. If this bill passes, I believe that some parliamentarians would think that we have dealt with the issue of animal cruelty. We would not have dealt with animal cruelty, and our concern is that they would be less receptive to a new bill at that time. We believe it is far more important to get it right now, not to pass legislation in 2006 that includes outdated wording from 1892.
One problem with the current legislation is that it is not an offence to kill stray or wild animals. A person could kill a raccoon, a stray dog or the cats on Parliament Hill for any reason, simply because they did not like them, and that is not an offence. That is one of the biggest problems with the offences for stray and wild animals.
Senator Bryden expressed concern that removing animals from the property section would move them closer to personhood. I believe Dr. Borwein mentioned that. We do not believe there is any basis in fact for that conjecture. Removing animals from the property section of the Criminal Code would not give them any rights. We have adamantly stated that in debates on this issue. This bill is not about animal rights and neither were the bills of the previous government. It has been suggested by some animal industry groups that taking animal crimes out of the property section would give animals rights. It would not. It would take nothing away from the ability of people to own animals. Farmers would still own farm animals and people would still own cats and dogs. In fact, the previous government's legislation, Bill C-50, included the word ``owned.'' It is only that animal crimes would no longer be considered property offences. Animals are not the same as other types of property and they should have their own protection.
Taking animals out of the property section would have no impact on lawful activities such as hunting, fishing, farming and scientific research. These activities are considered lawful excuse. The term ``lawful excuse'' is defined as that which is lawful. As Dr. Crook mentioned in the previous panel, activities that have standard practices do not have to be regulated to be considered lawful. The law would look at the regulations, the standard practices or the codes of practice with regard to the use of animals for various industries.
Legislation as proposed by Senator Bryden is out of step with the views of the majority of Canadians, including hunters and anglers. We look forward to sharing with you soon — next week, I believe — the results of the very recent national poll we have done on this issue. I cannot tell you any further details about it, but it is very telling about the views of Canadians with regard to protecting animals from cruelty.
The Chairman: When was the poll done, who did it and what was the sample?
Ms. MacDonald: We will release it next week so I cannot tell you very much about it, but it was a poll that we did on this issue. We asked four or five questions.
The Chairman: Was it an internal poll done by you? Did you hire external professionals?
Ms. MacDonald: I cannot remember the name of the polling company now, but it was not done by us. It is an official poll, and we will be releasing the results of that next week.
The Chairman: Are you saying that farmers, hunters and fishermen do not favour this bill?
Ms. MacDonald: We did not ask the question that way. The questions were regarding protection for different types of animals. I cannot tell you any more; otherwise, it will ruin the surprise. You will have to tune in next week.
It has been abundantly demonstrated over the past seven years that the Canadian public cares deeply about animal protection and wants our Parliament to enact effective legislation that applies 21st century Canadian values to animal cruelty. Each successive justice minister that has introduced animal cruelty amendments has stated that the department received more correspondence from Canadians in support of the amendments we have had over the last several years than on any other issue. I know Senator Andreychuk mentioned receiving a lot of mail on this issue as well.
I urge you strongly to give this matter the very serious consideration it deserves, instead of supporting only a half- baked loaf. Animals in Canada cannot speak for themselves. It is left to all of us here to ensure that animals are afforded the respect and protection befitting an enlightened Canada of the 21st century. We need a law that protects all animals from unnecessary, wilful or negligent pain, suffering or injury, and that protects them from being killed inhumanely and without a lawful reason. Bill S-213 does not do this.
The Chairman: Thank you very much for that presentation.
I would not want people who are watching or listening to this or who read the transcript to think that there is not in Canadian law now some protection for animals and birds. I want to refer you to sections 445 and 446 of the Criminal Code. Section 445 states:
Every one who wilfully and without lawful excuse
(a) kills, maims, wounds, poisons or injures dogs, birds or animals that are not cattle and are kept for a lawful purpose, or
(b) places poison in such position that it may easily be consumed by dogs, birds or animals that are not cattle and are kept for a lawful purpose,
is guilty of an offence . . .
Section 446 deals with causing unnecessary suffering:
Every one commits an offence who
(a) wilfully causes or, being the owner, wilfully permits to be caused unnecessary pain, suffering or injury to an animal or a bird . . .
Thus, there are provisions in Canadian law now, contrary to some of the suggestions you have made, that do in fact protect animals and birds.
Senator Downe: You are absolutely right. As I said earlier, the problem is in the enforcement. Charges cannot be laid by an SPCA or a humane society. They have to be laid by Crown prosecutors. According to the evidence, the Crown appears very reluctant to lay charges. The law is on the books, but in the year 2000 — I will say again for the record — out of 29,000 investigations by SPCAs and humane societies across Canada, there were 167 charges and 63 convictions. The problem is not the section you just read, it is the enforcement provision. That is the weakness of the current legislation.
The Chairman: Do you know why there were not more convictions?
Senator Downe: No. That is the question I want to ask the witnesses. Why were there not more convictions under the current legislation? What are the weaknesses?
Mike Draper, Acting CEO, Ontario Society for the Prevention of Cruelty to Animals: One of the greatest weaknesses is the wording. The issue of ``wilful'' in the current Criminal Code creates our biggest problem. We have to prove that someone intentionally neglected their animal. That is difficult. Neglect, by its definition, is negligence or criminal negligence, not intentional, and it is very difficult to prove. In many of our cases the issue is not whether the animal was deprived of food or caused unnecessary suffering but whether it was wilfully done. The word ``wilful'' has such a high level or standard of proof that many cases are lost because we have to prove either wilful or reckless intent versus criminal negligence.
Senator Downe: Your group must be very disappointed, because in the various speeches in the House of Commons and in the Senate many parliamentarians have spoken about how they are of course opposed to cruelty to animals — someone said it is universal like motherhood and apple pie — but parliamentarians are advancing the argument that you should accept this legislation, which, as you indicated, many people have said is weak and ineffective and they do not support it, because it is the best you can get now.
Are you disappointed that parliamentarians will not even improve the legislation to make it an offence to train animals to fight other animals and to receive money from the fighting of animals? How can parliamentarians, I wonder, and Canadians might wonder, say they are opposed to cruelty to animals but not even propose that possible amendment to this legislation and tell you to accept it the way it is? Are you disappointed by that?
Ms. MacDonald: Absolutely. That is one offence that was in the previous government's bill that would not be changed. Certainly there are a number of things that we are disappointed are not included in Bill S-213.
Mr. Draper: Further to the provision related to animal fighting, dogfighting is a serious problem here in Ontario and across the country. We know of many operations that train dogs to be fought with other animals. It is difficult to find them actually fighting, but we do not have the tools currently available to prosecute people who are breeding or training animals, specifically dogs, to fight other animals. It is very frustrating.
Senator Joyal: I have two sets of questions, one for the Canadian Federation of Humane Societies and the other for Dr. Borwein.
Ms. MacDonald, if we adopt this bill as it stands, then next year or the year after we can adopt a bill that would deal with wilful neglect and defining an offence for brutally or viciously killing an animal, with the fighting and training of animals for the purpose that you described to Senator Downe. We would deal only with those three new offences and would ask for your testimony on that second bill. You would still be against that bill because it would not deal with property sections, if I understand your testimony. In other words, you are opposed to an evolutionary approach to improving the Canadian legislation the way you want to see it; is that correct?
Ms. MacDonald: It is hard to say what we would accept next year or the year after, in taking bits and pieces of the things that we are looking for, but none of the things we are looking for is in Senator Bryden's bill, other than the penalties. We feel strongly about many problems in the current offences, some of which you mentioned. It is hard to say for the future, if we picked and chose, whether we would accept this one or these two changes. Today we are saying there are so many problems that we cannot accept just the penalties. If you were to change the penalties today and look at one or two or three of those other problems a year or two down the road, it is hard to say how we would respond then. There is just so much that is wrong today.
Senator Joyal: I understand that you have objectives and you have stated them quite clearly in your brief. Is your key objective the property section?
Mr. Draper: I would not say that. Our key objective is to have a better law in Canada that protects animals and does not provide the numerous loopholes and problems that the current legislation has. There are so many flaws in the current Criminal Code that are repeated in Bill S-213. How could we accept the bill? It is just the status quo that has been there for more than 100 years and will continue. We are very frustrated. We need a better piece of legislation that can provide the protection that animals truly need in this country.
Senator Joyal: I am trying to find the way we should approach this. To me, it is better to have a pragmatic approach and start with where there is a consensus. There is a consensus, as much as I can see, that those penalties seem to be in line with what they were in the previous legislation. Thus far, from the brief I have read and the letters that were handed to the clerk of our committee, no one is asking for a higher level of penalties. I do not know whether my colleagues have received letters stating that this bill should have higher penalties in terms of summary conviction or indictment. Consensus seems to have been reached on that issue.
I understand there are new offences you think should be addressed sooner rather than later. If you would assist us by indicating the priorities we should be addressing according to your experience dealing with animals, then I will support this legislation with the idea that, sooner rather than later, we would address another group of offences that we would want to deal with as expeditiously as we want to deal with this bill.
There are other contentious issues. I do not want to hide or ignore this. The property section is a major change in the Criminal Code. We want to understand all the implications and whether or not that will be the basis for stating that animals have rights and, as the previous witness said, if that will be the basis for personhood. Believe me, I want to think twice before legislating to put animals at the level of persons in Canada. It is fair to say this. I am happy to debate it any time, anywhere.
If we are to move to make the legislation of Canada reflective of where we are as a society, that seems to be the way to go. In the meantime, Dr. Borwein suggests that we improve the codes of practice and improve the norms that apply in the farm industry and in the research industry to have, perhaps, more stringent codes and additional levels of care and of penalties. That seems to be the proper and logical way to approach this difficult issue.
I do not like to be told to accept something just because it is what some people want and they are supportive. However, there are many implications. My colleague Senator Baker has raised the issue of the seal hunt. Many people are against that. We all know it; we have read the ads in the press. We are also concerned about the research industry. To tell you the truth, if I have to choose to kill an animal in a research lab experiment to try to find a cure for a major disease, if the animal is treated properly without pain — and perhaps Dr. Borwein can explain the treatment to us — then I must balance the situation and come to a reasonable conclusion.
We want to assure ourselves about that we are being reasonable in dealing with such a difficult and emotional issue. We understand that there is a lot of emotion in this. We know that people who care for their animals have a great deal of feeling for them. We are trying to find an approach that takes into account the situation and the greater good that we want to achieve in Canada. I do not think one is opposed to the other.
Ms. MacDonald: There are many things to respond to. We reached a huge amount of consensus in 2003 that I think was forgotten until the existence of Senator Bryden's bill. The bill that we came to then, with some changes from the Senate, was the compromise. It was supported by the Liberal rural caucus on behalf of 75 animal industry organizations. The consensus was reached then on a bill that was accepted by all parties in the House of Commons and all of those animal industry groups that had originally been concerned.
I do not understand how taking animal crimes out of the property section goes anywhere near giving animals rights or personhood when we are not changing the crucial words that describe the offences. That is really important. The previous government's bill did not use all kinds of new words; it maintained those crucial words that describe the offences that had been defined by Supreme Court of Canada cases over more than 100 years — words such as ``unnecessary pain and suffering without lawful excuse.'' It is not fair to say that that was a radical bill making huge changes. It is not unique in the world to not have animal cruelty in the property section and to not have animals considered property under the law when that takes nothing away from the ability of people to own their animals. People still have ownership authority over their animals; that would not be affected by taking animal crimes out of the property section.
As Mr. Draper indicated, taking animals crimes out of the property section is probably not the biggest rock that we would die on, because we think there are other aspects that are important.
Dr. Borwein: Much that you would like to see I think I and the people I represent could go along with. Training animals to fight each other is an awful thing. I think there is broad agreement in a humane country that cruelty to animals is not tolerable, but there are differences as to what constitutes cruelty. We kill rats in great numbers outside our towns because they can be a large problem. Our different rules pertain remarkably.
An American philosopher went to have a look at a research institution to see what the model status of a mouse was. He said that if it is a research mouse you must have veterinarians, ethics committees, trained laboratory animal workers and 24-hour care for that mouse because it is called a research mouse. But if that mouse escapes and runs around the building, it instantly becomes a pest mouse and can be killed any way you like.
Senator Nolin: Like the one I have at my cottage.
Dr. Borwein: Right. If you have a boa constrictor that must eat live flesh, you can take one of those research mice — under great care — and fling it to the boa to eat because then it is a food mouse and there are no rules about food mice. He went on to say that if your child has a pet mouse, you may work very hard to see that the child looks after it, but there are no rules. His moral judgment was that how you treat a mouse depends on what you call it.
I really appreciated your remarks, Senator Joyal. I do think that there is, for us, a huge significance in keeping animals in the property section. All the rules we would like to see made more stringent can be done under the property section. Removal is not needed in order to increase the definitions of what we would like to see in place. It is important. It is real. After all, cattle that farmers buy can be used as collateral in the bank. The farmers own them. You own your dog. You can buy and sell it, but most people absolutely adore their family dogs. They do think of them as belonging to them but, nevertheless, they are property. As you pointed out, the bill kept talking about owning and owners.
The significance that the animal extremists attach to the concept of property, which is being overlooked by people who do not see it, is enormous. In April 2000 the National Post reported that animal rights lawyers in the U.S. were working to establish great apes as legal persons. Joyce Tischler, the executive director of the Animal Legal Defence Fund, was quoted as saying, ``We're pushing the envelope until we can press a case in which the animal is plaintiff.'' Their aim is to bestow legal standing.
When the earlier bill originally came out of the Department of Justice, when Anne McClellan was Minister of Justice, the animal rights activists repeatedly said that they did not want animals to be ``mere property.'' That is one of the phrases they use. Because the dog is my property, I still treat it very well. It is not mere property because I own the dog. They also used the phrase ``the interests of animals.''
``The interests of animals'' and ``mere property'' become very loaded terms. They are propaganda words because they move an agenda in a certain direction.
Clayton Ruby, a very well-known lawyer in Toronto who has worked for a number of animal rights organizations, predicts that, ``Over the next 10 years, the changes will be subtle, masquerading as animal protection and continuing to develop as a moralistic adjunct to human rights until some of them at least get entrenched in law.'' He says that ``We will see the development of animal rights in a hesitant way through incremental changes in case law and judge attitudes, but we need legislative regulations and legislative changes, but you take what you can get. We are just at the beginning of this movement.''
There is no doubt that the Animal Alliance of Canada that was so supportive of Anne McLellan understood exactly that they wanted person-like status conferred on animals. Joyce Tischler said, ``Elevating of the status of animals from property to person will be a step-by-step process involving litigation, legislation and public education.'' One activist claimed that it heralded the emancipation of animals.
For those of us who work in the biological sciences, which is not only medicine but also veterinary and general biological sciences, these are very significant moves. In the medical research domain, we are all waiting for cures for AIDS and muscular dystrophy. Even the great father of animal liberation, Peter Singer, quoted those words. However, in a recent interview he was asked at point blank range about the use of animals to cure Parkinson's disease, and he actually said he would approve of that. It crossed my mind, although of course I do not know, whether he knows someone who has Parkinson's disease and sees what horrors it brings to people and so understands why we do use animals to try to get a handle on these rather gruesome diseases.
I cannot repeat enough that I and all the people I know are all for the humane, kindly, appropriate treatment of animals, but not for trying to confer personhood or assuming we can treat them like people. We, as people, because we are decent, want to treat animals as well as possible.
The Chairman: Bill S-213 deals with the penalties more than the other bill did.
Dr. Borwein: Yes, but it deals with them under that same rubric, under that heading. If other changes can be made later, so be it. We would support the kind of changes that Ms. MacDonald suggests.
Senator Joyal: Dr. Borwein, are you aware that there now exists in Canada an animal rights party that is registered with the Elections Canada?
Dr. Borwein: I am.
Senator Joyal: That party has as a platform the recognition of animal rights, as you stated in your presentation.
Dr. Borwein: They do not call themselves an animal rights party. It was the Animal Alliance of Canada that actually threw their support and weight behind Anne McLellan when she was running in one of her elections, and she promised them, they wrote, to do something for animals. They put together a group they call environmental voters. That is a powerful name these days, because everyone wants to protect the environment. Who does not? That party is not called an animal rights party, but you are correct; they are masquerading under a different title. They are registered, and they receive all the benefits of being a registered political party. I think they got 49 votes in one election in which they stood.
Senator Joyal: I would like to ask a question of the Canadian Federation of Humane Societies. Ms. MacDonald, would you take it upon yourself to come back with a list of offences that you feel should be introduced in the Criminal Code to reflect what you consider to be the most common situations that should be looked after in the Criminal Code with the kind of penalties that you feel would be the proper level of punishment, so that we can have a capacity to understand where we should be addressing our priorities in the months and years to come?
Ms. MacDonald: We can do that. Do you mean to prioritize our list?
Senator Joyal: No. You know very well the milieu, and you talked about wilful neglect and about training animals to fight other animals. As you have seen, there certainly is around the table a conscience to address that. I do not need to list all the concerns, because I think you know them. On the basis of your experience, when you care about animals, what are the most common concerns? I know that all of them should be the object of Criminal Code sanctions, but I would like to know what you think are the most common issues and pressing priorities to be addressed, if it is possible to get that from you.
The Chairman: Do you agree?
Ms. MacDonald: Sure, yes.
Senator Nolin: Senator Joyal introduced my question.
Senator Joyal: I am sorry, I did not read your mind.
Senator Nolin: Thank God, not that time.
You used the words ``the great compromise of 2003.'' You know what? We do not see legislating as compromising. We do not look at our work that way. Have you read what we said in this committee and in the Senate?
Ms. MacDonald: Yes.
Senator Nolin: When I was talking about a common ground, I was talking about the penalties, and I am still convinced that I am right. You agree with those penalties; right?
Ms. MacDonald: Yes.
Senator Nolin: On both side of the arguments, we all agree on the penalties. It is minimal, but we all agree on it. That is exactly what I was talking about.
Ms. MacDonald: Okay, sorry.
Senator Nolin: Coming back to the compromise, if you recall, we had five amendments from this body, and the House accepted two. Right?
Ms. MacDonald: And amended one.
Senator Nolin: They accepted two.
Ms. MacDonald: And amended one.
Senator Nolin: You had three outstanding problems. Referring back to the introduction of Senator Joyal, why not go back to those three and eliminate them from your list? You will probably find a very agreeable court here when you come back with your list. I am suggesting that to you. In the list of all your concerns, you will see that there are not many, but we do not see that as a compromise. We cannot compromise with the decision of the Supreme Court of Canada. We cannot compromise on the rights of Aboriginals.
Ms. MacDonald: Do you not think Bill S-213 is a compromise?
Senator Nolin: No. You said 2003 was a compromise and every party in the House of Commons had agreed. Well, it is a good thing for them to agree to a compromise, but they just forgot to read what we were saying.
Mr. Draper: I think that the compromise in 2003 was the first time that all the animal protection groups and the industry groups got together and agreed that one bill is the way to go. That was the compromise we were discussing. You will find that the agricultural organizations, the Canadian Council on Animal Care, the Canadian Federation of Human Societies and most groups across the nation finally agreed that that was the best bill to move forward in 2003. That is the compromise we were talking about.
Senator Nolin: What about the Aboriginals' rights?
Ms. MacDonald: It was our position that —
Senator Nolin: You are lucky that none of our Aboriginal colleagues are here. When you return with your list, we will invite them to be here. You will see they have some concerns.
The Chairman: I want to hear Ms. MacDonald's response to that.
Mr. Draper: We understood that the legal opinion was that the Constitution protected Aboriginal rights. We agreed with the Department of Justice that it was therefore not necessary to entrench those rights further in this piece of legislation, because, of course, the Constitution is supreme.
We certainly were not arguing that Aboriginal rights were not to be protected. We took the position, as the Department of Justice did, that those rights were protected through the Constitution. Therefore, those rights did not need to be enacted within the bill.
Ms. MacDonald: That is right.
Senator Nolin: I urge you to go back to the various speeches made in the Senate in 2003, and you will have a bit of a flavour of the problems we still have.
On the rest, we all agree. We have no problem.
Ms. MacDonald: Why are we sitting here now, then, looking at a bill that falls so far short?
Senator Nolin: That is the question. We were ready to accept almost everything. We explained in three specific speeches in the Senate why we still have those three problems.
It is not a compromise. We do not see that as a compromise. Do not say that to my colleagues from the North. If you are in a compromise, you have to accept it. No, we do not see it that way.
Ms. MacDonald: I do not think I meant it that way.
Senator Nolin: You used that word. That is fine.
Ms. MacDonald: I think Mr. Draper explained it very well.
The Chairman: A number of people today have raised a question about an offence to train an animal to fight other animals. I would not want people to think there is not something in the law already. Bill S-213 re-enacts the current offence where, ``Every one commits an offence who . . . in any manner encourages, aids or assists at the fighting or baiting of animals or birds.'' That language is there. That offence could potentially be interpreted to extend to acts such as training an animal to fight another animal. That is open to the courts, depending on the interpretation they want to put on it.
It is clear that if any pain is caused to an animal during training, such pain or suffering would amount to an offence of ``causing unnecessary pain to an animal.'' It would be caught by that section.
Mr. Draper: I would like to comment on that and on your previous comment about protection of stray animals. You are right, the current Criminal Code includes the words ``aids or assists at the fighting or baiting of animals.'' In our prosecutions, that is where we have lost.
Training is separate and apart from fighting or baiting of animals because of the words ``at the fighting'' which are in the current Criminal Code and which are repeated in Bill S-213. That small word ``at'' requires you to be in attendance at a fight. That is the legal interpretation we have received. In the cases we have attempted to prosecute, the Crown has said that provision does not apply to training the animals to fight. It applies only at the fighting or baiting of animals.
The Chairman: Is there a case to that effect?
Mr. Draper: Yes, there are cases to that effect. The training in itself may not be cruel, but the end purpose is to fight the animals together.
The Chairman: If the training is cruel, it is caught by the section.
Mr. Draper: Yes. The difficulty is that we cannot usually find these people fighting their dogs together. We know of the training facilities and their training methods. They use steroids and heavy weights.
We can identify the properties, but the current provisions, and Bill S-213, do not allow us to address this.
Senator Nolin: We never had a problem with that. I relate to the evidence problem. We raised some questions about the quality of the evidence that was required to achieve that. We never had a problem with that.
Mr. Draper: The other issue we talked about was stray animals and their protection. Unfortunately, in proposed section 445 of Bill S-213, we are again stuck with wording that prevents us from protecting stray animals. The bill talks about killing, maiming, wounding, poisoning or injuring dogs, birds or other animals that are not cattle and are kept for a lawful purpose. It is the ``kept for a lawful purpose'' that does not protect stray animals. The same wording is used in the provision on poisoning.
The Chairman: We heard that last week from other witnesses.
Mr. Draper: That is where there is no protection for the stray cat when someone puts poison out or decides to shoot the stray cat that is not kept for a lawful purpose. We have been frustrated by that in a number of cases. It is a significant weakness.
Senator Baker: Could we ask that where the witnesses are referring to case law they provide examples of cases, if possible?
Mr. Draper: Certainly, if they are reported. You must realize that not all animal cruelty cases are reported and therefore accessible. I will give you the cases we are aware of.
Senator Baker: It is true that they are not all reported. In order for you to get a legal opinion, I presume your lawyers would have a copy of the unreported case.
Mr. Draper: It is not the society's lawyers. We are dealing with Crown attorneys here. They are our prosecutors. We do not prosecute our own cases, contrary to what others have said. Absolutely, we can supply you with the information we have.
Senator Baker: Normally with an unreported case, someone who has a concern will ask for the tape or transcript, then it would be transcribed, a small amount would be charged, and the person would have that to use as case law.
Anything you have in that regard would be helpful to the committee. This is our problem with a lot of this stuff.
We read a lot of case law. It comes out of our ears. In order to understand a lot of what is said here about wilful neglect, for example, the term ``departing markedly from the standard of care'' is used, which you hope to introduce in Bill S-373. My goodness, that is a standard expression of judgment of anything that is not clearly marked ``wilful'' or covers a mens rea of any offence like that.
Could you please supply us with any reported or unreported case for which you have a transcript, so that we will have some substance?
Mr. Draper: Absolutely.
Senator Milne: I have a fast question. You say this does not cover stray animals. However, in the bill, proposed section 445.1(1) states:
Every one commits an offence who
(a) wilfully causes or, being the owner, wilfully permits to be caused unnecessary pain, suffering or injury to an animal or a bird.
To me, that covers every animal.
Senator Nolin: That is the mens rea.
Senator Milne: It is the ``wilfully'' that they have a concern with. Still, it covers every animal, whether they are tame, wild, escaped, or anything.
Mr. Draper: You are correct. I was referring to proposed section 445 and you are referring to proposed section 445.1(1)(a). They are two separate sections.
Yes, I agree with you; the section that talks about causing unnecessary pain, suffering and injury appears to apply to all animals. However, it is very difficult in that case, without some clarity, because of the Crown prosecutors, who often do not wish to move ahead with the prosecutions.
You are right. On the face of it, that section does apply to all animals. I was referring to a separate section.
Senator Milne: This would also apply to the animal rights activists who release all kinds of mink that are being farmed. They open up the cages and let them go. Ninety per cent of the poor mink die within two days. They starve to death. They do not know how to feed themselves.
Senator Downe: I have a comment rather than a question. The discussion today was very interesting.
Your questions, in particular, raised some problems between the current laws on the books and enforcement. I think there was an appetite around the discussion today to address some of the concerns. I would hope that at some point, before this bill proceeds, the committee would consider some amendments to improve it.
Senator Joyal: Dr. Borwein, if I remember correctly, when you testified previously, you mentioned that the code of practice that applies to researchers in Canada was under review. Could you explain to us the process through which the code is the object of regular study, is developed through your professional organization and is implemented?
Dr. Borwein: That is not done through the medical domain only, because you would be aware of it. The Canadian Council on Animal Care, CCAC, was originally set up about 40 years ago by a renowned veterinarian, Dr. Harry Rowsell. He was concerned that there was no organized guideline for how animals are treated and transported. That council has since grown. It has two volumes of guidelines, and there are regular assessments at any institution that uses animals for research, not just medical ones. The council is now quasi-recognized by government, though it is not a government body, and it does encompass a broad number of groups and people, including of course the Canadian Federation of Humane Societies. The CCAC is constantly evolving as other issues come to light.
The CCAC is of such repute and importance that funding bodies like the Natural Sciences and Engineering Research Council of Canada and the Canadian Institutes of Health Research will withdraw funding from any organization that is not in compliance with the CCAC's guidelines. Reasonable warning and time have to be given because an institution may have to spend $1 million to fix something, but institutions do have to follow those guidelines.
The influence of the council is enormous. People who serve on it know that it is in everyone's interest to keep it working and to keep it appropriate. There are always differences of opinion as to what exactly constitutes pain. That was discussed during the previous meeting I attended here. I think the CCAC is not only terribly significant for the standards, education and protection of our medical research, but it also has international repute and standing now. It is a model, in fact.
We have learned from countries like Britain, where many of these things are legislated, that it is harder to change legislation than to change guidelines. The Canadian Council on Animal Care can modify its guidelines with much less fuss and bother than taking things through a legislative process. The important thing is that it works. Whether everyone thinks it works perfectly — well, that is a human situation.
We are very proud of the work of the Canadian council and very glad that a veterinarian set it up. He got the Order of Canada for his work, and he richly deserved it. We are lucky to have the Canadian Council of Animal Care and the standards it sets for research animals.
The Chairman: Ms. MacDonald, you were nodding. Do you want to comment on Dr. Borwein's answer?
Ms. MacDonald: Certainly I would agree with Dr. Borwein that the CCAC is very well recognized around the world and has a good system of oversight for the use of animals in research. As I mentioned before, though, they do not have a problem with taking animals out of the property section in the law, and they did support the previous government's bill.
Dr. Borwein: I do not know whether or not they have a problem. They decided not to comment, not to take a stand on that. This is an evolving situation also; some of the earlier discussions bypassed a number of medical bodies. That list of those who approved the earlier bill did not involve them.
In any case, today we are dealing with the here and now and the bill before us, and it was stated earlier that, in this imperfect world, sometimes we settle for less than perfect.
The Chairman: That is a good note on which to end. Mr. Draper, Ms. MacDonald, Dr. Borwein, on behalf of the committee, I thank you very much for your interesting interventions and explanations on this bill and on some of its predecessors.
The committee adjourned.