Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 33, Evidence - June 17, 2015
OTTAWA, Wednesday, June 17, 2015
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-35, An Act to amend the Criminal Code (law enforcement animals, military animals and service animals), met this day at 4:50 p.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good day and welcome colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs. We are meeting today to begin our study of Bill C-35, An Act to amend the Criminal Code (law enforcement animals, military animals and service animals).
To begin our study of the bill, please welcome, for his final appearance of this Parliament, the Honourable Peter MacKay, Minister of Justice and Attorney General of Canada. Minister MacKay is accompanied, from the Department of Justice Canada, by Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section; and Michael Zigayer, Senior Counsel, Criminal Law Policy Section.
Before we begin, I remind senators that the minister is here for the first hour. Officials will remain following the minister's departure.
Minister, we'll begin with your opening statement.
Hon. Peter MacKay, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you, chair and honourable senators. I'm pleased to be here with you to discuss what I consider to be an important and compassionate bill.
[Translation]
Bill C-35 seeks to recognize the role that trained law enforcement animals, military animals and service animals have in ensuring the safety and security of our citizens and to appropriately punish those who would hurt or kill them.
[English]
In the 2013 Speech from the Throne, as senators may know, was a commitment to bring forward what was known as Quanto's Law, which I'll define in a moment. It was done in recognition of risks taken by police officers and the animals that assist them as they carry out their important duties. This bill meets the commitment and, in fact, goes further by extending enhanced protection in law to service animals, such as guide dogs for persons suffering from vision loss, and the Canadian Forces animals. It was a cause championed by Costas Menegakis, Member of Parliament for Richmond Hill.
Quanto, as many here may know, was an Edmonton Police Service dog that was fatally stabbed while assisting the police to apprehend a fleeing suspect in October 2013.
I'll pause here to say it is poignant that we saw the very sad funeral services taking place in Edmonton on this date for a fallen officer.
Mr. Chair, Quanto had been in service for four years with the Edmonton Police Service and had participated of note in over 100 arrests. Quanto's death was the catalyst for this bill but was also, I believe, the inspiration for much of the thought that has brought us to this point.
Law enforcement animals like Quanto support front-line police officers and investigative units by tracking suspects, searching for missing persons, searching for evidence and dangerous materials, and apprehending criminals.
This bill seeks to honour Quanto's memory and, more importantly, to recognize the critical role that law enforcement animals, service animals and military animals take on each and every day across our country. Like emergency responders themselves, these animals take on an elevated risk because of the nature of what they do.
Substantively this bill strives to specifically protect dogs and horses that are law enforcement animals; trained service animals that assist persons with disabilities, such as guide dogs for the visually impaired and dogs trained to assist persons suffering from post-traumatic stress disorder; and dogs to assist persons with disabilities that are certified in writing as having been trained by a professional service animal institute to assist such a person.
I would suggest that this could also be interpreted to expand into a new compassionate category of comfort animals that are sometimes used in child sexual assault cases, such as in Edmonton, I note, permitting a child to take the witness stand in the presence of an animal for the purposes of comfort and aiding in their testimony.
Honourable senators, service animals trained to aid a member of the Canadian Forces to carry out their duty, for example, is another recent phenomenon that has been successful. Not to stray too far afield, in the area of suicide where we have seen members from the Canadian Armed Forces suffering from post-traumatic stress, these animals have been extremely successful. Not a suicide has occurred when an animal has been assigned, just to demonstrate and underscore the importance of their work.
[Translation]
This proposed legislation recognizes that animals that are used in law enforcement, like law enforcement officers whom they work beside, face risks on a daily basis while assisting those officers in enforcing the law and protecting society.
[English]
This legislation also recognizes the vital role that service animals play as guide dogs and how they help persons with disabilities benefit from a better quality of life and lead to more independent lives. It's also important to note that the bill captures animals used by the Canadian Armed Forces, who play such an important role in our daily lives but also further afield, such as the work we saw them doing in Afghanistan in detecting improvised explosive devices and explosives generally. It occurred to me immediately that while we have come a long way with technology, when it comes to what mother nature has blessed these animals with in terms of their ability to detect by scent certain objects that are the source of much pain and suffering or the source that is often the object of the search for soldiers and police, it's quite impressive.
Government, therefore, is committed to ensuring that people who willfully harm these animals face the full force of the law.
To step back from this from an emotional standpoint, the creation of this offence specifically prohibiting the killing or injuring of these animals, coupled with the strengthening of the sentencing regime that would apply to those who commit such an offence, specifically denounces and deters the harming of these animals. These are recognized principles in the Criminal Code, as you're aware, and I'll touch on that in a moment.
With respect to penalties, Bill C-35 proposes several amendments to the Criminal Code. First, it would create a new hybrid offence that would prohibit specifically the killing or wounding of one of these service animals. The new hybrid offence would also apply where the killing or wounding is done willfully. This would ensure that the offence does not catch accidental or negligent conduct. I suspect there may be some questions for clarity on that point.
For context, animals that do not fall within the scope of this new hybrid offence in proposed section 445.01 would still be protected. That is to say, under existing cruelty sections that protect animals, including section 445, it is an offence to willfully and without lawful excuse kill, maim, wound, poison or injure dogs, birds or other animals. There is an important section to be mindful of in the examination of this bill.
[Translation]
Bill C-35 distinguishes the criminal sanctions that would attach for the wilful killing of a law enforcement animal while it is aiding a law enforcement officer from those that would apply where the offender's conduct does not result in the death of a law enforcement animal. The proposed mandatory minimum penalty of six months for killing a law enforcement animal while it is aiding a law enforcement officer reflects the significant harm to society that results from the killing of such animals in the line of duty. We believe that this targeted mandatory minimum penalty would not result in the imposition of a grossly disproportionate sentence. The Supreme Court has set a high bar for what constitutes cruel and unusual punishment under the Charter.
[English]
Chair, honourable senators, the government believes that where a law enforcement animal is killed while assisting a law enforcement officer in enforcing the law and the offence is prosecuted by indictment, a mandatory minimum sentence is an appropriate and proper means of denunciation for such an offence. It's also of note less than what the sentencing judge meted out with respect to Quanto's killer. That is to say that the sentence in that case of 26 months, 18 of which were specifically attached to the killing of that police animal, was the sentence given. Here we're talking about a much lower minimum sentence.
Finally, the bill will include a clause that ensures that sentences imposed for assaults on certain law enforcement officers are served consecutively to any other sentence imposed arising out of the same set of events. This represents an important change in the law. This element of the proposed package reflects that these officers put their own lives at risk for Canadians on a daily basis, and an attack on them we believe is also an attack on the justice system itself.
Denunciation and deterrence, as I referred to earlier, found in section 718.02, was enacted in 2009 through an act to amend the Criminal Code. It dealt with organized crime and the protection of the justice system participants. This is a section that requires the court that sentences an individual who has been convicted of any type of assault against a peace officer or public officer in the course of their duties to give primary consideration to the objectives of denunciation and deterrence. I would suggest that in the context of this bill, a service animal serving in that capacity alongside a police officer should be afforded these same protections.
Therefore, Bill C-35 proposes to create a new section, 718.03, which would create a similar provision with regard to offences relating to law enforcement animals, military animals and service animals. In the future, courts will be required to give primary consideration to denunciation and deterrence with respect to the new offence found in proposed section 445.01.
Once this bill is passed, trained service animals would receive the recognition they so rightly deserve and criminals who hurt these animals or kill them are appropriately punished for these acts.
In closing, I want to thank members of the Legal and Constitutional Affairs Committee for their expeditious study of this bill. I know that on Monday, June 15, the House of Commons voted unanimously, 266 members to 0, to approve this legislation and send it to this house.
In conclusion, honourable senators, I believe that this bill is worthy of your support and I'm grateful for your deliberations. I'd be pleased to take your questions.
Thank you.
The Chair: Thank you, minister.
We will begin with the deputy chair, Senator Baker.
Senator Baker: In relation to the minister's closing statement, speeches were given on both sides of the Senate Chamber, and they were in support of the legislation before us.
In a moment, I will to pass my questioning to Senator Munson, the critic for this particular bill. I would first like to say, minister, that we're going to have police associations appear before us, the CNIB, the Canadian Federation of Humane Societies, the K-9 units and two lawyers' associations, and hopefully all of this will be done so that we can get this bill referred back to the Senate and voted on for final adjudication.
Minister, on behalf of the committee, we want to thank you for your great contribution to the deliberations of this committee over the years. You've perhaps introduced more legislation, I think, than any other minister and any other person probably in parliamentary history. Before you, the great Elmer MacKay was a man of great contribution to this country. And hopefully in the future, we'll have another MacKay down the road who will also be the Minister of Justice to follow in the tradition. We all, everybody on both sides, wish you the best and congratulate you on the wonderful contribution you've made to the Government of Canada.
With that, I will pass my question to Senator Munson.
Senator Munson: It must feel good just to be going down the road, just going home. I'm having flashbacks because you were talking about the minister's father, and we are aging a wee bit here. I covered your father over and over again here on the Hill back in the 1970s, early 1980s, and of course with Mr. Mulroney as well. Those are fond memories of a Progressive Conservative time.
I spoke today, minister, in support of the bill. I do have reservations a wee bit with consecutive sentencing. It's part of my political philosophy, I guess.
I see where Quanto's killer was sentenced to 26 months and that included 18 months for the death of Quanto, and that's heartbreaking. He was also banned from owning a pet for 25 years.
Would it seem reasonable to you if this piece of legislation had a clause with a similar punishment for anyone who kills a police dog or service dog to be banned from owning a pet for 25 years or even life? Was this considered, and is there a reason it is not in the bill?
Mr. MacKay: Thank you both for your very kind words afforded to my family and me. I'm proud of public service. I don't know that I would counsel my own son to enter the field, but that will be a choice for him.
To your question, senator, the discretion I would suggest is still there with the court to impose a lengthier or even lifetime ban, although not specifically set out in this legislation. I would suggest that it could be more broadly applied by a sentencing judge.
In the circumstances, and depending on how the facts were laid out before the court, if there was a particular element of cruelty, if the actions which led to the injuring or the death of the service animal in question were so egregious that the judge felt that it should go beyond the 25-year prohibition, I would suggest that would still be available to the court.
Senator Munson: Thank you for that, minister.
What is available to us is the possibility of an amendment. Would you be in favour of an amendment in the Senate to deal with this? If a person deliberately has killed a dog in service of his country or in service of a person with a disability and had the intent of killing that dog, would you be in favour of that?
Mr. MacKay: Under normal circumstances, while what you're suggesting is not unreasonable, the effect would be to kill the bill, and it would therefore not be afforded the opportunity to be in the Criminal Code at the conclusion of this session of Parliament. For that reason, I would be opposed to an amendment.
Senator Munson: You talked about the negligent aspect of it and you expected questions. What were you expecting?
Mr. MacKay: I was expecting, for example, if in hot pursuit a service animal was to, as is often the case in a chase, identify the wrong person, and in the way in which you've seen these dogs are trained, they will usually grab and hold a person. Even if the person being pursued was the accused individual and had prior experience with a dog that led them to react in a way that might not be the normal reaction and in so doing injured, harmed or killed the animal, that to me would be seen as a mitigating circumstance. It should be taken into consideration at trial.
These are sometimes very highly charged and instantaneous reactions that occur, and so just as that would be a consideration before the courts in an assault on a human being, it should also be afforded as part of the consideration before the court involving a service animal.
I anticipated a question that might be in the area of mitigation.
Senator McIntyre: Thank you, minister, for being here today and for your fine presentation. I echo Senator Baker's remarks. Thank you for the great contribution that you have made over the years to the Legal and Constitutional Affairs Committee.
Minister, as you have indicated, this bill amends the Criminal Code to better protect law enforcement animals, military animals and service animals and to ensure that offenders who harm those animals or assault peace officers are held fully accountable.
The key words that come to mind are "better protect." What was your motivation in bringing this legislation forward? In other words, was it to create a higher threshold under the law that will protect these animals and add an element of responsibility that brings about that service component? Was this bill drafted specifically with that purpose in mind?
Mr. MacKay: Thank you for the question. In short, yes. I think it does create a higher threshold. It's also based on prior experience working as a Crown with investigators that used service animals and seeing the efficacy and the importance of their work; similarly, the experience I had at the Department of National Defence and seeing the incredible contribution these animals make.
I should have noted in my opening remarks that the cost associated with the training of some of these dogs goes as high as $60,000. These animals begin training as young as eight to ten months, as pups. The time invested in the training of these animals is what not only makes them so valuable in terms of their service to Canadians and to society but valuable in terms of replacement cost.
It does, as you say, ratchet up the threshold and puts a spotlight on their value and their contribution and brings about a greater recognition that we need to protect these animals because of the jeopardy that they are often placed in by virtue of their important work.
If I can say so humbly, the drafting of this legislation accomplishes that. It is drafted in a way that is multi-faceted and that is meant to anticipate the way in which the courts will view this vis-à-vis the consecutive sentencing components and the necessity for a higher threshold involving a mandatory minimum penalty where it is deliberate. To that end, I think it achieves what we've set out to achieve: first and foremost, protecting these animals and sending a message of deterrence for those who would harm them.
Senator Jaffer: Thank you, minister, for being here. I would be remiss if I didn't ditto the remarks that both my colleagues have made, and I would be doing a great disservice if I didn't recognize your mother. As you know, I worked closely with her. When you first became minister, you called me to convey her good wishes to me. I want to recognize your mother. In many ways, people say, "You're your mother's son," but sadly, she gets forgotten. I feel she has also been a very important part of your life, if I may say so.
Mr. MacKay: Thank you.
Senator Jaffer: I congratulate you for this bill, minister. I think it's a good bill, but the angst I always have is when you introduce a bill, like the latest one, you are looking at changing people's views. For example, with drinking and driving, our values have changed because of legislation and education. This bill is also part of education. By doing this, you are raising awareness and education.
Every time I see bills from you, I am a little concerned that you do not want to leave anything to the discretion of judges. You and I have the greatest respect for our judges. They're the best in the world. Why do you always want to take discretion away from judges?
We know in the Nur case that mandatory sentencing was once again thrown out. I feel with a good bill again, that will be the attention rather than what you're trying to do, which is to educate Canadians about how we treat animals.
Mr. MacKay: Thank you, senator, once again, for your very kind comments about my mum. I certainly feel the same. I'm grateful to both of my parents for all that I have, all that I am.
The reference to taking away discretion, I would simply say that in cases involving violence or the potential for violence, it's my considered opinion that having mandatory minimum penalties in place — which, by the way, is nothing new. As long as we've had the Criminal Code, we've had mandatory minimum penalties. There are some 60 currently in place by governments of all political stripes that have had the good fortunate to govern.
In this instance, a mandatory minimum penalty, we believe, is a reflection of society's condemnation of this type of offence.
In the case of Nur — only because you've raised it — once again, for context, the judges in the Supreme Court upheld the sentences for both Nur and Charles, which were significantly higher than the mandatory minimum penalty that they struck down. I'm sure that you've read the dissent in which Mr. Justice Moldaver quite adamantly points out that in fact the use of reasonable hypotheticals is sometimes quite unreasonable. That's my word, for emphasis.
In this instance, I believe that what we're attempting to accomplish here, as referenced by Senator McIntyre, is best accomplished by setting a minimum, a bar we feel sends a message to the public that harming service animals in the execution of their duty is of such a serious offence that you can expect that you will be incarcerated for such. I feel passionately about that, whether it's gun crimes, whether it's harming children and sexual assaults, whether it's child pornography. These are of such a serious offence that the word needs to go out that if you do this, you're going to jail.
I draw a very different line when it comes to white-collar crimes, for example, or other crimes that don't necessarily involve personal harm or violence.
Here, albeit these are our four-legged friends, this is about violence being conducted in society on working animals. We see them sometimes much differently. We see them in the course of their day-to-day existence, but these are working animals.
The same with a police horse; horses are often used effectively to disperse a crowd in a volatile situation. We have on record a case where a horse was deliberately rammed with a car and had to be subsequently put down.
This is about raising the bar of protection for people who work with animals and the animals themselves in the course and conduct of their duties.
Senator Batters: Minister, it has been an honour to serve with you as your parliamentary colleague for two and a half years. I want to thank you for your ongoing recognition and appreciation that you have voiced for the work of this committee and for the Senate at a difficult time for the Senate. I want to congratulate you for the significant legislative legacy that you leave as Minister of Justice.
First of all, could your go a little bit more in-depth — so we have this on record for this particular piece of legislation — to address concerns raised by some regarding the constitutionality of this particular provision.
Mr. MacKay: Thank you, Senator Batters. Similarly, it has been a pleasure.
As has been referenced, this has been a very busy session of Parliament, particularly in the area of justice and public safety. Let's be clear: None of this legislation makes it to Royal Assent without your important input. We have been partners on so many of these bills, and I thank you for that.
With regard to the constitutionality, as I've expressed on all occasions when asked about whether a bill meets that Charter compliance, my answer is always the same: It has to in order for us to present it for your deliberations and consideration, likewise in the house.
This bill, similarly, in the course of second-reading debate with regard to the constitutionality of the mandatory minimum penalties — in particular the six-month period of imprisonment — we believe would meet that standard. Looking at it on balance, what we're attempting to achieve here — and the proportionality, which is always part of Charter compliance test that is applied — and having considered, as was pointed out by the honourable senator with respect to recent precedent, R. v. Nur, it is our position that mandatory minimum penalties here are appropriate, proportionate and would not result in the imposition of what is described as grossly disproportionate sentences. I say that having previously referenced what in fact transpired in the Quanto sentence that was meted out.
I believe that the cruel and unusual punishment standard under the Charter would not attach to a mandatory minimum penalty here. If this provision is challenged, we would vigorously defend its constitutionality.
So it is again my considered view, but it is also the view of the department, that the constitutionality test is met in this legislation.
Senator Batters: You mentioned this in your opening statement and I was pleased to hear this, but could you please tell us more about the service dogs that assistant people with post-traumatic stress disorder?
Mr. MacKay: This is a subject that is dear to many of our hearts, including your own. I happened to be in Edmonton the week that a child who had been sexually assaulted was permitted to take the stand and use the services of an animal known as Hawk. We met Hawk recently during the week that we were commemorating 10 years of the advent of Child Advocacy Centres.
With regard to their utility in helping persons suffering from operational stress disorder or post-traumatic stress, as I mentioned earlier, the success is undeniable that they have witnessed. I think it's also important that these animals are afforded that protection. I believe that the whole subject matter of post-traumatic stress is still being studied and still being understood in a way that is extremely important for us as a country in recognizing that it's not only soldiers; it is people who are often injured on the job. It is police officers, fire and emergency responders who will always be the beneficiaries of this.
So when we look at this in its totality, we will inevitably see more of these animals in service. We need to do more to recognize the value they bring, and one important way of doing that is to protect them in the workplace, which I believe this bill accomplishes to a large degree. I thank you for the question.
Senator Joyal: I had the privilege to serve in the other place with your father and I always appreciated his gentlemanly nature, even though we had different views on issues, which is normal in a house that is devoted to expressing different views and arguments. You have certainly shown the same kind of gentlemanly nature to people who have different views, and I personally appreciate that very much.
Mr. MacKay: That is very kind.
Senator Joyal: With regard to the bill, you answered Senator Batters in relation to mandatory minimum sentencing, but this bill recognizes at clause 2 the elements of consecutive sentences. I would like to come back to that because it also adds to the general sentencing objectives of the bill.
Could you explain the principles at the root of deciding to impose consecutive sentences? I could rephrase the question. What consecutive sentences should serve in relation to other offences that we have in the code? What kind of parallels could we draw to conclude that, in the end, the sentence will still be proportionate?
Mr. MacKay: Thank you very much, senator. I have great respect both for you and this committee and your personal commitment to the law broadly. Your constitutional prowess is well known across the country.
I will answer your question to the best of my ability, perhaps with an example. You're right to underscore the importance of proportionality, which is something all sentencing judges are bound to consider in the final disposition.
As a starting point in my response, as with individual victims, there has been a trend that this government has certainly underscored to have individual recognition in the law for the harm done to each individual. This is something that was also prevalent in our consideration around the victims' bill.
I would suggest that similarly here, and what happened in the case of Quanto, the sentencing judge recognized the harm done to the officer but also the harm done to the animal. That was to be reflected in the sentence itself very clearly to send that message of deterrence and denunciation.
If an RCMP officer, for example, stops a vehicle and thinks the driver is impaired, and the driver exits the vehicle and assaults the officer, as is sometimes unfortunately the case, the driver is later convicted of impaired driving and also convicted of having assaulted the police officer. The sentence under the principles of the code — section 718.02 — would require that the court impose consecutive sentences, even though it occurred in the same course of events. These were two separate offences that were committed, so again the objectives of denunciation and deterrence apply.
Under the proposed amendments, the court would be required to order that a sentence imposed on a police officer who was working with a dog — and say the person was fleeing, resisting arrest and in the course of doing so harmed the officer and independently harmed the animal — I would suggest in that example that the consecutive sentencing principles would similarly be appropriate because it is a separate offence. They injured the officer and they injured the animal, both in the execution of their duties.
So in that scenario or any other scenario where the police are working with the animal to investigate an offence, and in the course of conducting a lawful arrest, resistance or assaults occur on the officer and the animal, it's appropriate that the sentencing judge consider those two offences not in isolation, because it's a consistent flow of events, but as separate entities in that they have committed offences against the individual and the animal. That's why we believe the consecutive principles here apply. As you know, for clarity, this means that the sentences are to be served back to back as opposed to at the same time, consecutively.
Senator Joyal: In the other section of the code where we find similar consecutive sentences, elements of reprobation are entrenched in the offence. Can you outline in another section of the code similar reasoning to the one you are explaining to us in relation to the fact that the animal is part of the officer? For the sake of this offence, the animal becomes part of the peace officer.
Mr. MacKay: I guess that leads us into almost a more philosophic discussion about animals. I would call my wife an animal advocate. She believes that animals have souls and that animals need to be respected in a way that, in some cases, society has not.
I would suggest that the type of animals that we are talking about here in particular need to be elevated to a place where under the law — and this is where I say we separate some of the emotion — the role that they are playing, the service that they are providing for the protection of Canadians, by virtue of that service, exposes them to a higher risk. So I believe there is a commensurate duty on the state in this instance to provide them a higher degree of protection than would be afforded other animals that are similarly essential but not as exposed to the risk that we are demanding of these animals.
To come back to your question, I believe that they are not simply an extension of the police officer. If the animal, for example, is required to chase down an individual or to provide support to a person who is suffering from a condition, and by virtue of that they are exposed to a greater risk themselves, when you take this through to its natural extension of where a crime has been committed against that service animal, we believe it deserves separate, distinct recognition under the law. That would be signified by a consecutive sentence if in fact it happens in a set of circumstances where numerous offences have occurred, which is what we're discussing.
Therefore an assault on an officer, separate and distinct from the assault on the animal itself, is the best description I can give.
Senator McInnis: I wish you well in retirement, but I don't have to say goodbye. In Nova Scotia there's a road that runs across the province. I live in one end and you live in the other.
Mr. MacKay: You probably built that road, sir.
Senator McInnis: Your father and I had a great deal to do with construction of that road, as a matter of fact. It's probably why he got elected. Anyway, it's nice to see you again, minister.
As a former Crown you will know the answer to this, I'm sure. If the animal, as horrific as it is, is killed, you would proceed by indictable offence and it would summary if the animal is injured; would that be fair to say?
Mr. MacKay: I think as a rule of thumb that is correct. It's the degree of violence perpetrated here and whether a weapon was used or the degree of suffering. Even if an animal was caused to suffer I would suggest that might possibly lead to an indictable offence.
Senator McInnis: Would you have to proceed civilly if you wanted to recoup the cost?
Mr. MacKay: You would, although a judge in some cases could order a form of restitution. But, as I mentioned, we're talking about a significant sum of money. Some of these dogs and horses are very expensive. Trying to enforce a restitution order of $60,000 would be a formidable undertaking.
Senator McInnis: Exactly.
Where does this place us vis-à-vis other countries? Are we out front or are we equal?
Mr. MacKay: That's a good question. We did look at a number of international examples. If I could say so humbly, I think this will put Canada in a very good place, equal to or ahead of most countries in terms of how we are treating service animals.
The American jurisdiction is perhaps the most instructive. Of course, as you know, with state legislation they have different penalties that attach. But in some states they have up to 10 years of imprisonment for an indictable offence involving the death or serious injury of an animal. California's animal cruelty laws are some of the strictest in the world. We did look at other jurisdictions. Ohio has an offence for attempting to cause physical harm to a police dog or a police horse.
We're in the high end of the range with the passage of this legislation, and that to me is a good thing, if I can say so.
Senator McInnis: I can see a case where self-defence is going to be pleaded here. A dog, normally a German shepherd, holds the person down. I know they're trained to hold on and not to do too much injury, but you can see that that will be the number one. I'm sure we'll hear that from the Criminal Lawyers' Association tomorrow or whenever. Do you envisage that that will be quite prevalent?
Mr. MacKay: To come back to earlier references to judges' discretion, I recall a law professor at Dalhousie saying that bad facts make bad law. There are some instances where the circumstances will completely dictate not only the outcome of the trial but they will also be brought up at sentencing.
Mitigating factors are different from defences. Again, we're into some legal definitions about what is reasonable force in trying to extricate yourself from a dog that's holding you. What is reasonable force? I think in most circumstances where a weapon is used it's going to be quite clear to the court. We know that drug dogs, for example, that are searching for drugs or drug paraphernalia are often at risk of being shot or killed because they don't want the illegal substances, the contraband, to be detected.
To come back to your question, I think it will very much depend on how the factual circumstances are presented to the court and what the evidence is in every case. Mitigating factors as to the means used to defend oneself from being held or stopped or chased by a dog will be described and accurately weighed by the court in every case.
[Translation]
Senator Dagenais: I do not want to repeat what all of my colleagues have said. Thank you, Minister, for the excellent work you have done. I had the pleasure of meeting you about 15 years ago when you took part in the Quebec police associations summit. You gave a remarkable presentation that was appreciated by all of the police officers of Quebec.
I should tell you that since I was appointed to the Senate, one of my former colleagues phones me on a regular basis to find out when a bill on police dogs will be introduced. He is a dog master with the Sûreté du Québec. I told him that we were meeting today and he thanks you most sincerely for having tabled this bill.
As you know, police dog masters were anxiously awaiting this bill that will protect their animals. That said, Mr. Minister, we see that the bill discusses various categories of animals according to the type of assistance they provide. My question is very simple. Will a dog that accompanies a Correctional Service officer be considered a law enforcement animal?
[English]
Mr. MacKay: I believe it would. In short, the animals that work with police officers at the border, at airports, those who work with correctional services, those who are by definition serving the public, very often alongside a dog handler, would fall within that description.
I have a very good friend, Duane Rutledge, who has worked with dogs now for 20 years. It's remarkable to see the bond that exists between the handler and the dog. In some cases they respond to more than one handler, which again is a testament to their intelligence.
German shepherds were mentioned, but there are now many different dogs being used for this purpose. Even poodles that have very strong olfactory senses for smell are being used in some airports.
In short, the definition of "service animal" is broad enough to capture those categories of corrections, border services and airport security.
[Translation]
Senator Dagenais: Once again I thank you, on behalf of all the police dog masters who are waiting for the adoption of this bill. They will certainly appreciate it. Personally, I have always had dogs, and I would have liked to have become a dog master, but unfortunately, that did not happen.
This is a bill that will be appreciated. Like you, I think we have to consider law enforcement dogs as members of their teams. That is why I think that this bill will be applauded. Once again, Minister, thank you for your excellent work.
Mr. MacKay: Thank you, senator, for your kind words. I agree with you entirely that this bill is important for the protection of the animals that contribute to ensuring the safety of Canadian citizens within our borders.
[English]
Senator White: Thanks for being here, minister. I know you've told us six times that this is your last time. I don't believe you anymore, actually.
I was the chief in Durham when Brigadier, the horse, was killed in Toronto, and I went to a memorial. I know that a number of people started at that time the pressure to deliver legislation. I think at some point a horse was ridden over a number of weeks from York to Ottawa to try to make the point.
I do support the suggestion from Senator Munson. I will be talking to him about future legislation because I think that's appropriate, but I have to say 2006 to 2015 has been a long time coming. I want to congratulate you on bringing this to an end because I think it is important. Having been out there with officers, I can tell you that it's not just an animal or a dog or a horse for the people who work with these brave partners — that's what they call them.
I take it you would support future legislation that would talk about automatic bans against people. Although I understand restitution is difficult, I think it might be appropriate to at least have the opportunity to have that in legislation. Would you support future legislation?
Mr. MacKay: Senator, I would. Your knowledge of this is obviously intimate, I suspect, having worked with service animals or certainly having had command of officers who did.
I think future legislation could examine other ways to send the message of deterrence. A lifetime prohibition on weapons is also often meted out in cases of extreme violence. The circumstances that sadly you can anticipate might warrant a lifetime prohibition.
What we're faced with here, though, to be quite frank, is let's not let perfection get in the way of the good. The bill as drafted accomplishes 95 per cent or more of what we're attempting to do.
Incidentally, if I might take one liberty, there's a monument to service animals not far from where we gather in the city of Ottawa, which is quite poignant.
Senator Baker might know that a famous Newfoundland dog, the mascot for the Royal Rifles of Canada Regiment, was commemorated recently for his service, which occurred, I believe, in the First World War.
The times have changed and people's views of the intrinsic value of service animals has brought us very much to this point, which I think is appropriate, as reflected by the consensus that's clearly here. Maybe what is sometimes seen as a very acrimonious Parliament, we would conclude on a note of doing the right thing to protect our friends in the animal kingdom.
Senator White: Congratulations.
Senator Plett: Let me also add my congratulations, minister, for all the work you've done. Some of us had the opportunity at a social setting last night to thank you for the work you've done. I would like to do that here on the record as well, and simply say that I had the honour and privilege of working with you in formulating our Conservative Party of Canada. It was certainly a pleasure to do that with you from the beginning. I want to wish you well in whatever you're doing and, as has been said before, hopefully we'll see you back here a few years from now, but we'll let that play out.
Minister, the bill states:
. . . while it is aiding a law enforcement officer in carrying out that officer's duty, a military animal, while it is aiding a member of the Canadian Forces in carrying out that member's duties. . . ."
Does that mean if the dog is in a compound or the horse is out in the pasture and, let's say, is shot at that place, this bill would not apply?
Mr. MacKay: That's an interesting question, Senator Plett. Thank you for your earlier comments.
I would put it this way. If the dog or the horse in your scenario were engaged with training, for example, one might be able to make the connection. I earlier referenced other sections of the code that would probably be more appropriate for the Crown or the police to proceed with if an animal were randomly targeted because of the role they play. If it came to light through a confession or interrogation that an individual had singled out a dog or horse, even though it was in the pasture or in the compound, and killed the animal because they knew it was a police or service animal, one might be able to make the case. To answer your question, what's described in the bill before you is really designed to protect the animal while in service. It's a bit like an officer who is on duty, would be my answer.
The Chair: Minister, we've arrived at your scheduled departure time. I know I have three senators who have indicated they would like to ask you another question.
Mr. MacKay: I'm certainly fine. We have votes happening and the bells are ringing, but we're okay.
Senator Baker: I have a couple of short questions, minister. I appreciate your answer to Senator Plett, because it depends upon one's interpretation of a dog that is in the process of carrying out an officer's duties.
I appreciate your comments about the training of those dogs. As you probably know, in recent case law a human sniff is not considered to be a search, but a dog sniff is now considered to be a search under our laws, sometimes triggering a challenge under section 8 of the Charter. It's absolutely incredible when you read the case law, as I'm sure you have, to realize the 100 per cent accuracy rate of these dogs in drug investigations. It's absolutely incredible.
My question relates to consecutive sentencing. As you know, because you dealt with provincial and federal offences when you were a Crown prosecutor, this particular case is under the Criminal Code, so you would have a provincial Crown prosecutor, presumably, prosecuting one of these cases.
Mr. MacKay: Yes, most often.
Senator Baker: You would have, in the case of every province, a violation of two laws, one provincial and one federal. Every province has animal protection legislation that is pretty compelling; so you would have an offence listed. Normally, you would have two counts under the Criminal Code and one count under the provincial act.
I know this is rather technical, but when you apply consecutive sentences, the bill says, ". . . committed against a law enforcement animal shall be served consecutively to any other punishment imposed on the person. . . ." for the same delict — it doesn't say "delict," but it should — ". . . for an offence arising out of the same event or series of events." Would that incorporate the provincial and the federal counts in that charge, or would it apply only to consecutive sentences for the federal sentences under the Criminal Code?
Mr. MacKay: My first thought is that it would apply broadly to all offences, as written. In most instances, senator, I expect that the lesser charge under the provincial legislation would result in a fine most often.
Senator Baker: That's true.
Mr. MacKay: We're not talking about the same thing when we're talking about being served consecutively. We're talking about periods of incarceration. In addition to or consecutive to any other sentence that was imposed at that time would denote consecutive throughout.
Senator Baker: I have one further clarification. Proposed subsection (2) of 445.01 says:
(a) an indictable offence and liable to imprisonment for a term of not more than five years and, if a law enforcement animal is killed in the commission of the offence, to a minimum punishment. . . .
The "commission of the offence" refers to the offence of injuring the animal, I presume, and not to the offence for which the person was being investigated when the animal was assisting the enforcement officer; is that correct?
Mr. MacKay: That is correct.
Senator Baker: It's in the offence of harming the animal and not the offence that is being investigated.
Mr. MacKay: Yes. You have to read it in its totality: If the animal is killed in the commission of the offence as opposed to injured.
Senator Baker: As opposed to injured.
Senator Joyal: That's the key distinction.
Mr. MacKay: That's the key nuance.
Senator Baker: In the commission of the offence, but then you go back: What is the offence? The offence is injuring the animal. It's not in the commission of the criminal offence being investigated.
Mr. MacKay: No. For clarity, it would be for the higher end of the spectrum of violence. As questioned by Senator McInnis earlier, the decision to proceed by indictment versus to go summarily would also very much be predicated on whether it was injured or killed, or it was at the very high end of what would constitute perhaps a tortuous death for the animal. I would suggest you could still go by indictment if the animal was severely wounded, but you could not then have a mandatory minimum penalty.
Senator McIntyre: As you stated, the Crown has the option of proceeding summarily or by indictment. If it proceeds summarily, there are no mandatory minimum sentences, but if it proceeds by indictment, there are mandatory minimum sentences. We have to keep in mind that the intentional killing of a law enforcement animal while aiding a law enforcement officer in carrying out his or her duties is paramount.
Mr. MacKay: That's correct.
Senator McIntyre: You need that mens rea. If you don't have it, the Crown will not proceed by indictment. That's clear.
Mr. MacKay: That's right. I would hearken back to earlier references to the mitigating circumstances around it, whether the person had a prior experience that led them to react disproportionately to the animal or to the circumstance that might factor into whether there was the mens rea.
Senator McIntyre: Colleagues have also spoken about consecutive sentences. Don't you think we have to tie that in with the objectives of denunciation and deterrence?
Mr. MacKay: By all means.
Senator McIntyre: They work together; you can't separate them.
Mr. MacKay: To be clear, it's not meant to handcuff or diminish the important role of judges in meting out sentences, but if we are to send a clear message that certain offences are so offensive to the public and create such a risk, the starting point is going to be a minimum period of incarceration.
Senator Joyal: My question has been triggered by the definition of a law enforcement animal. I'm thinking of the horses used by police forces in protests. Being from Montreal, in the last two years we have had many protests involving student groups, and the horses have been one key element to try to re-establish order.
When I read clause 3 of the bill, especially the phrase "without lawful excuse," I immediately see what would be a defence in a protest: "I tried to protect myself because the horse was coming at me, and I didn't want to have the leg of a horse on my head or stomach where I could be mortally wounded." A person would more or less invoke self-defence in that context.
How do you think a court will interpret that element of the offence in relation to such a circumstance that I would not say is common but that we have seen, especially in student protests? My colleagues from the police forces could testify to that. It seems to me there's a loophole for this section to be open for a defence that might succeed in relation to that offence.
Mr. MacKay: Thank you, Senator Joyal. I would point you to clause 3 of the bill, which quite clearly sets out at proposed section 445.01(1): "Every one commits an offence who" — and here's the operative word — "wilfully and without lawful excuse. . . ." So to that extent in your scenario, while self-defence might make for a novel exercise as far as pleading that you were protecting yourself from being run over by a horse, you would have to use quite extraordinary means, if I could put it that way, either by virtue of a weapon or, as was the case with Brigade, a vehicle was used, if my memory serves me correctly.
In other words, in the factual scenario that you presented, you would have to use quite extensive force to prevent a horse from affecting your movement, either a weapon or a vehicle. You can think of various scenarios. If you were carrying a bat or you were using pepper spray or a knife, then you could severely injure the animal. I don't think you would be able to plead reasonable force or defence of person in that scenario.
I'm trying to envision another scenario in which you would be using reasonable force to protect yourself, but it certainly could be argued. There are novel arguments presented every day in courts across the land.
Senator Joyal: We have seen it in Montreal, especially. As you know, there were many protests two years ago. We had some this spring. Of course, horses play an important role in containing the movement of mobs. Fortunately, police have the horses. When the mob sees the horses coming, they know it's serious. There's no doubt they are part of the elements of essential tools to re-establish order and bring people to more common sense in their right to protest.
Mr. MacKay: That's why they're an effective deterrent. When the horses are coming, even the sound of the hooves startles the senses.
Senator Joyal: There's no doubt about that. That's why I'm trying to figure out how that section would be triggered in relation to a horse that would be wounded in the case of a group of people being involved in trying to push back the horse because they feel threatened once the horse is moving towards them. That's where I feel there might be a loophole or interpretation for a defence in relation to that offence.
Mr. MacKay: I think in all instances it will come down to a question of the facts as they unfold and the proof of the evidence before the court.
Senator Joyal: "Wilfully," as my colleague mentions, means mens rea. In such a case, the idea is not to try to wound the animal; the idea is for a person to protect him or herself. That's where the line is blurred between something very well defined whereby somebody comes to the protest with the idea of seriously wounding or even killing the animal, and somebody who, in the course of a protest, finds himself or herself caught in a situation where the animal is there and they feel threatened by the animal. That's why I feel there's a blurred distance between the clear mens rea and the essential element needed to prove that offence.
Mr. MacKay: I would emphasize the language in the previous section that speaks to "wilfully and without lawful excuse." So the lawful excuse would have to be weighed against the evidence that's before the court. That comes back to the important role of the judge.
The Chair: Minister, thank you for your generosity in your last appearance before the committee.
Mr. MacKay: I think this truly is my last.
Senator Joyal: We sit tomorrow.
Mr. MacKay: I do have another bill that I could try to get to you.
The Chair: We want to congratulate you on your significant contributions as a parliamentarian. You're leaving a legacy you can certainly be proud of.
I want to thank you for also doing the best you could to ensure that this committee remains the busiest in the Senate; you've succeeded. On behalf of all the committee, we wish you only the best for whatever the future may hold.
Mr. MacKay: Very kind. Thank you, senators.
Hon. Senators: Hear, hear!
The Chair: Ms. Morency and Mr. Zigayer are remaining, and if senators have additional questions for them, the time is now.
Senator Baker: I have just one clarification. The minister addressed the restitution question to another member of this Senate committee a few moments ago. I wonder if the officials could enlarge on the answer given by the minister and reference the restitution provisions of the Criminal Code as they relate to this bill.
Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice: As the minister said, the court has the authority to deal with whatever order should be made as part of the sentencing order, including the prohibition order.
This bill doesn't specifically propose a new form of restitution because the existing provisions on restitution — section 738 — could well apply in the sense that, for example, an RCMP officer who can show it cost $60,000 to train this animal would be able to demonstrate readily ascertainable cost, property, expenses and seek an order of restitution through the existing provisions.
As the committee knows, the Canadian Victims Bill of Rights, Bill C-32, that recently received Royal Assent also enacted other amendments relating to restitution.
Once those provisions come into force, in every case a sentencing court would be required to consider whether an order for restitution should be made. Other amendments were enacted as well through that bill that will facilitate that process to seek that restitution order.
Senator McIntyre: Subsection 429(2) of the Criminal Code provides a defence. It appears to me that the new section also provides a defence by amending the code to insert the words "wilfully and without lawful excuse." What similarity is there, if any, between these two types of defences? In other words, is Bill C-35 just maintaining a similar approach to what's there right now? Subsection 429(2) basically applies to all the other provisions in the code.
Ms. Morency: As the senator noted, the question was also raised in the other place, and it invited a fair bit of consideration in the sense of why would you have subsection 429(2) as well as in the new proposed offence of "wilfully and without lawful excuse"?
Subsection 429(2) has basically been in the Criminal Code since the first Criminal Code. Similarly, when you look at the existing animal cruelty provision in section 445 that Bill C-35 models, it also has that similar repetition of the same element. It's a fair question: Why would you have it in both?
Bill C-35 is only looking at addressing a small part, not at overhauling all of the provisions, but I think there's no inconsistency or other negative downside of that other than it seems to be repetitive. It's the model there now in the existing offence on which Bill C-35 is based, but the two operate in harmony, I would suggest to the committee.
Michael E. Zigayer, Senior Counsel, Criminal Law Policy Section, Department of Justice: I would only add the fact that if we hadn't put it there, there would be questions as to why it wasn't there, because we had modeled the new offence on the existing cruelty to animals offence, section 445.
Senator McIntyre: In other words, the defence under this bill would apply only to law enforcement animals, service animals and military animals?
Mr. Zigayer: This offence applies only to those three types of service animals, yes.
Senator McIntyre: Very well.
Are you aware of other jurisdictions at the provincial level within Canada that may already offer certain protections to service animals?
Mr. Zigayer: I'll quickly say that we're talking about a prosecution under the Criminal Code, resulting in a criminal record. I think there's an important distinction in terms of your future ability to cross the border or go anywhere else if you have a criminal record as opposed to an offence that may exist under provincial legislation.
I'm not familiar with what might exist in terms of animal welfare legislation at the provincial level. Our focus was doing something at the federal level, in the Criminal Code. We looked at different statutes and jurisdictions in the United States and at the federal level as well, and we designed this provision, keeping in mind section 445 and general Canadian legislative principles.
Senator Jaffer: Thank you for always making yourselves available.
Since this is our last meeting, I would like to thank you, Ms. Morency. You have always made yourself available to our committee. Thank you for your work as well.
I'd like you to help me. I'm really struggling with the issue of mandatory minimum sentencing. As a lawyer, I'm very much aware that mandatory sentencing is not something that has come into place in the last 11 years, but I am not aware of the Supreme Court of Canada rejecting mandatory sentencing as much as it has in the last 11 years. I may be wrong.
What happened before 11 years ago? Was mandatory minimum sentencing addressed by the Supreme Court of Canada? How many times has it been rejected in the last 11 years?
Ms. Morency: I do have a bit of information that would assist.
The Supreme Court in its recent decision in Nur did not find the concept of mandatory minimums unconstitutional. It was in the reasonable hypothetical in that specific offence. On a previous occasion, the Supreme Court found a seven-year mandatory minimum penalty dealing with drugs to be unconstitutional. They upheld, I think it was in the Ferguson case, a four-year mandatory minimum penalty. So there haven't been many instances pointing to the Supreme Court on the specifics of what you've raised.
Certainly the Nur decision reaffirmed the court's analysis in how it assesses a mandatory minimum penalty under section 12 of the Charter in terms of the two-step analysis. One might suggest it clarified how the reasonable hypothetical is to be applied.
But as the minister said, in the context of the bill before this committee, the minister has ascertained that in accordance with that interpretation, even post-Nur, he remains satisfied that the bill meets that test.
Senator Batters: I have a quick question in follow-up to something that Senator Munson asked and that Senator White also referenced. In cases like Quanto's Law, there's nothing preventing a judge in such a case from imposing an accompanying lifetime ban on a criminal from owning an animal; is that correct?
Mr. Zigayer: I think the Quanto case is a perfect example of the judge exercising his discretion. I think that was a 25-year ban and there was nothing specifically in the law at the time that said he could or couldn't. It was the imposition of what he believed to be a reasonable sentence.
It has to be remembered that the accused who killed Quanto was being sentenced for a number of offences, and the judge was mindful of the need to respect the principle of totality, but he also recognized that the killing of Quanto was an attack on the administration of justice writ large and to the values of society. He took pains to make clear that 18 months of the 26 total was for the killing of the police dog, the police service animal. Perhaps if he hadn't had all those other offences before the court at the same time the offender might have received more, not less, for the killing of Quanto. But there was the totality principle in play as well.
Senator Batters: Yes, and prosecutors prosecuting these types of cases obviously look back at past jurisprudence, which would include Quanto case and others that can go forward from this point, and would see the types of things that may be commonly asked for accompanying those. They might also see the testimony before this committee and realize that's something this committee recognizes could be a worthwhile addition to that type of a sentence; correct? That's the sort of thing that prosecutors would be looking at?
Mr. Zigayer: Absolutely. Prosecutors are always looking at precedent, as are defence counsel. In this particular case, this was an agreed proposal, agreed resolution. The Crown and defence had put forward the 26 months. Often the Crown and defence will get together to avoid a lengthy and costly trial, and this was one of those situations.
Senator Joyal: Welcome, Mr. Zigayer and Ms. Morency. I would like to come back to proposed subsection (3) in clause 3 of the bill. I will read it:
(3) A sentence imposed on a person for an offence under subsection (1) committed against a law enforcement animal shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events.
I will continue with my example of student protests in Montreal last spring and two years before. Most of the protesters were accused of violating a municipal bylaw. It's not a provincial statute; it's a municipal bylaw. Would that be covered by a punishment? Suppose a protester is found guilty of being part of an illegal protest, because the leader has not given the route of the protest, which is an offence under bylaw P-6 of the City of Montreal. It says with any protest, you have to give the route to the authorities, the police and the city service. Would somebody who was found guilty under a municipal bylaw of taking part in an illegal protest find themselves with the responsibility to serve consecutively the sentence that would be imposed?
Mr. Zigayer: I think the short answer is no, but it deserves an explanation.
When we were looking at designing this particular provision, we were actually thinking of the case of Quanto where the suspect was fleeing from the police and committing certain crimes —
Senator Joyal: Under the Criminal Code?
Mr. Zigayer: — under the Criminal Code. Those are the offences we were talking about.
If I could come up with a reasonable hypothetical totally different from the Quanto case, let's say you had an individual who was operating a clandestine drug lab. The police, with a law enforcement animal, are searching for him. They locate the place and arrive on the scene. The operator of this clandestine lab then shoots a gun, kills the dog and wounds the officer with him. What would happen? We'd have a drug offence of operating a drug lab, whatever offences existed there. We'd have the charge of killing a dog under this new offence, and we'd probably have wounding of a police officer under the Criminal Code as well.
If we put aside the wounding of the police officer, the offence we would be talking about is the drug offence. If he would get two or three years for the drug offence, then whatever the court imposed, whether it was the mandatory minimum of six months or a longer term of imprisonment for the killing of the law enforcement animal, that would be served consecutively.
Senator Joyal: I understand.
Mr. Zigayer: It's interesting, in my example, I also raised the injury to the police officer. That would also be served consecutively because of clause 2.
Senator Joyal: Clause 2, yes.
But you're clear that it's not the intent of this legislation to link the commission of the offence to the violation of a municipal bylaw in relation to a protest?
Mr. Zigayer: That's correct.
If I can return to your hypothetical, which was the demonstration in Montreal and the injury caused to the horse and the possibility of an attempt to raise self-defence, as the minister was saying, it will depend on the facts. However, let's say that the demonstrator came to the demonstration with a bottle of acid and threw that acid in the face of the horse. I don't know if that could be called self-defence. I think you'd see some premeditation, and I think that the accused might have a hard time satisfying the court that that was self-defence.
Senator Joyal: In other words, if somebody is found guilty of being part of an illegal protest under a municipal bylaw, then section 446(2)(b) would be applied, which is "an offence punishable on summary conviction and liable to a fine not exceeding five thousand dollars or to imprisonment for a term of not more than six months or to both," which would be deemed to be a criminal offence that would be causing damage or injury to an animal.
Mr. Zigayer: Not 446. That's in the existing code. It would still be an offence under the new provision. We're just discussing whether or not there would be an ability to claim self-defence.
Senator Joyal: I mean it would not be consecutive. In other words, the consecutive element means that you need another offence for which the killing or the wounding of the animal is linked in the same "happening."
Mr. Zigayer: I would say another criminal offence, whether it's the Criminal Code or one of the drug statutes.
Senator Joyal: One of the federal acts.
Mr. Zigayer: Yes.
Senator Joyal: Did you discuss that with municipal police forces?
Mr. Zigayer: No.
Senator Joyal: You didn't discuss that. We will have police forces here and I can raise it. Thank you for the answer.
I think it's helpful to understand because that is essential, in my understanding, to determine the scope of the legislation in relation to wounding animals of aid to police.
Thank you.
[Translation]
Senator Dagenais: Thank you for that very useful information. Now I have a question for you about the new offences concerning the animals that help their masters in performing their duties. It happens sometimes that a police officer who is not on duty is called on to intervene when he or she witnesses a criminal act. When a police officer sees a crime being committed while he is not officially on duty, will the same penalties apply?
Mr. Zigayer: You raise a difficult question, a hypothetical question. It would be clearer if we said that neither the police officer nor his dog were on duty. The dog may simply be in the backyard when he gets killed. If someone kills a police officer who is not on duty, that is the murder of an individual, and not of a police officer in the line of duty. That can affect the sentence.
Can we say that a police officer is always on duty, in that case?
Senator Dagenais: I will give you an example. I was a police officer for 39 years; some of my colleagues who were not on duty witnessed a bank robbery while they were there doing their own banking. Any police officer, even if he or she is not on duty, has the obligation to arrest anyone who commits a criminal act. The police officer has to intervene.
Here is a parallel: neighbours come to see you, and they know that you are a police officer and that you are a dog master; and then someone commits a criminal offence while you are not on duty. When you intervene, they attack your dog. That is a scenario, but it happens often that police officers have to intervene even if they are not on duty. In that case, would the same penalty apply if those individuals attacked the dog?
Mr. Zigayer: According to the counsel for the defence, that would probably be an offence under section 445. In both cases the maximum sentence would apply. The only difference is that if they kill the dog, the 6 month minimum sentence, and a consecutive sentence, would apply.
If I were the defence lawyer, I would plead guilty for that offence. The Crown will surely want to avoid arguments and settle the case rapidly, since there are many cases waiting to go to court.
Senator Dagenais: Thank you.
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The Chair: Members and witnesses, I misled you. We have another final question from Senator McInnis.
Senator McInnis: I don't know how fluid it is or if the employ of the dog falls in one of the categories. For example, a guard dog that's on its own roaming around a property, probably fenced in, would that fall under a law enforcement animal or would it not?
Mr. Zigayer: No. It has to be specially trained.
Senator McInnis: This would be specially trained.
Mr. Zigayer: A law enforcement animal that's assisting a law enforcement officer in carrying out his duties.
Senator McInnis: That's what I was wondering. Thank you.
The Chair: Witnesses, thank you very much. It was very helpful and informative. We shall see you tomorrow morning as well.
Members, we're back here at 10:30 tomorrow morning.
(The committee adjourned.)