Proceedings of the Standing Senate Committee on 
Fisheries and Oceans

Issue No. 10 - Evidence - March 2, 2017

OTTAWA, Thursday, March 2, 2017

The Standing Senate Committee on Fisheries and Oceans, to which was referred Bill S-203, An Act to amend the Criminal Code and other Acts (ending the captivity of whales and dolphins), met this day at 8:32 a.m. to give consideration to the bill.

Senator Fabian Manning (Chair) in the chair.


The Chair: Good morning. My name is Fabian Manning. I'm a senator from Newfoundland and Labrador and I'm chair of this committee.

Before I begin to hear from our witnesses this morning, I would like to ask the members of the committee if they would introduce themselves. Then we'll go through our witnesses.

Senator Watt: Charlie Watt, Nunavik.

Senator Sinclair: Murray Sinclair, Manitoba.


Senator Forest: Éric Forest from Quebec, Gulf region.


Senator Hubley: Elizabeth Hubley, Prince Edward Island.

Senator Ataullahjan: Salma Ataullahjan, Ontario.

Senator Christmas: Dan Christmas, Nova Scotia.

Senator Plett: Don Plett, from Manitoba.

Senator Gold: Marc Gold, Quebec.

Senator McInnis: Tom McInnis, Nova Scotia.

The Chair: The committee is continuing its examination of Bill S-203, An Act to amend the Criminal Code and other Acts (ending the captivity of whales and dolphins).

We are pleased, this morning, to welcome representatives from the Department of Fisheries and Oceans and the Department of Justice Canada. I would ask if they would introduce themselves first, please.

Arran McPherson, Director General, Ecosystem Science Directorate, Fisheries and Oceans Canada: Arran McPherson, Director General of Ecosystem Science, Fisheries and Oceans.

Sylvie Lapointe, A/Assistant Deputy Minister, Ecosystems and Fisheries Management, Fisheries and Oceans Canada: Sylvie Lapointe, Acting Assistant Deputy Minister, Fisheries Management, DFO.

Adam Burns, A/Director General, Fisheries Resource Management, Fisheries and Oceans Canada: Adam Burns, Acting Director General, Fisheries Resource Management, DFO.

Joanne Klineberg, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: Joanne Klineberg, Senior Counsel, Criminal Law Policy Section, Department of Justice.

The Chair: I thank our witnesses for taking the time to be here this morning. My understanding is that we have some opening remarks from Ms. Lapointe. Then we will field questions from our senators.

Ms. Lapointe: Thank you and good morning. I am pleased to be here on behalf of the Department of Fisheries and Oceans and the Canadian Coast Guard. The oversight of issues relating to the management of oceans, aquatic resources and fisheries, aquatic life and ecosystems provided by the Standing Senate Committee on Fisheries and Oceans is invaluable to the department.

First, let me begin by outlining some of the department's roles and responsibilities with respect to cetaceans. Fisheries and Oceans Canada has the lead federal role in managing Canada's fisheries, including whales, dolphins and porpoises. Canada's three oceans are home to 60 whale populations, including the killer whale, which is actually part of the dolphin family. Pursuant to the Species at Risk Act, 18 cetacean populations are currently listed as either endangered, threatened or a special concern species.

The department manages all marine mammal resource use activities under the authority of the Fisheries Act and through the issuance of licences. We also participate in environmental assessments and undertake regulatory reviews of development projects affecting cetaceans under the Fisheries Act and the Species at Risk Act. For example, we have the responsibility of managing development projects that can create underwater noise or other stressors which could impact cetaceans. Should there be impacts to whales, dolphins or porpoises, we work with project proponents to identify measures to mitigate or offset impacts to these cetaceans and to ensure implementation of these measures.

Fisheries and Oceans is also responsible for assisting marine mammals in distress. In collaboration with conservation groups and non-governmental organizations, the department supports marine mammal incident response networks in all regions under the umbrella of the Marine Mammal Response Program. With our partners we track and respond to whale entanglements, strandings, ship strikes and contaminated animals from events such as an oil spill. DFO fishery officers play an important role in assisting our network partners in carrying out this often dangerous activity.

Under the recently announced Oceans Protection Plan, the government has committed to launching an immediate science-based review of the effectiveness of current management and recovery actions underway for the southern resident killer whale, the North Atlantic right whale and the St. Lawrence beluga. The review will be completed by summer 2017 and will seek to identify areas for immediate improvement in recovery efforts and priorities for new or enhanced action efforts.

Whales are also important culturally to a number of Aboriginal groups and as a food source for many Inuit communities in Canada's North. The wildlife harvesting rights of Inuit under various land claims agreements include the right to harvest whales in accordance with the respective agreements. The wildlife harvesting rights of the Inuit under these agreements are protected by section 35 of the Constitution Act.

Whale harvesting in Canada is limited to Aboriginal subsistence needs but does include the ability of members of some Aboriginal groups to sell products, for example narwhal tusks, from whales that are legally harvested. On average, 500 narwhal, 800 beluga and 3 bowhead whales are harvested on an annual basis in the Canadian Arctic. Our scientists work closely with indigenous groups to incorporate the traditional knowledge into the assessments of these northern whale species.

That is a brief snapshot of my department's roles and responsibilities with respect to cetaceans. Now I'd like to talk specifically about Bill S-203. Let me begin with a very brief review of the bill.


The purpose of Bill S-203, An Act to amend the Criminal Code and other Acts (ending the captivity of whales and dolphins), introduced by Senator Moore, is to phase out the keeping of cetaceans in captivity in Canada, with an exception for the rescue and rehabilitation of injured animals.

As you know, Bill S-203 would amend the Criminal Code by adding a new provision after section 445.1. It would also amend section 28 of the Fisheries Act and section 7 of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, or WAPPRIITA.


The acts identified for amendment by the bill already have mechanisms in place to partially achieve the intent of the bill. For example, under the Fisheries Act it is possible to restrict the wild capture of cetaceans. Pursuant to the Criminal Code there are laws in place to protect individual cetaceans from being caused unnecessary pain, suffering or injury. In addition, WAPPRIITA provides for some restrictions on the trade in cetaceans for conservation purposes.


Fisheries and Oceans Canada and the Canadian Coast Guard have a mandate to ensure the conservation and protection of cetaceans in Canada. I will first discuss considerations around the bill's impact on enforcement of the Fisheries Act and the repercussions for other departmental activities.

Administration and enforcement of the Criminal Code is the responsibility of the Honourable Jody Wilson- Raybould, Minister of Justice and Attorney General of Canada, and administration and enforcement of WAPPRIITA is the responsibility of the Honourable Catherine McKenna, Minister of the Environment and Climate Change.


The department has existing federal mechanisms for cetaceans to restrict their live capture. For example, under the Fisheries Act a licence can be issued to authorize the capture of cetaceans for experimental, scientific, educational, aquatic invasive species control, or public display purposes if the activity is in keeping with the proper management and control of fisheries. However, I would note that Fisheries and Oceans Canada has not issued a licence authorizing the capture of a cetacean for public display purposes since the early 1990s. Moreover, in 1992, the department announced a ban on the capture of live belugas for export to aquaria outside of Canada.


The department does not issue licences authorizing the capture of live cetaceans except for scientific research or rehabilitation purposes. Over the past 10 years, a licence has been issued for the rehabilitation of a cetacean only once, to help a live newborn false killer whale who was stranded. The department worked with the Vancouver Aquarium to rescue the animal.


If after treatment a rehabilitated animal is deemed non-releasable, researchers study them to gain information that provides a better understanding of their species. There is no cetacean rehabilitation facility on the eastern or northern coasts of Canada. In these cases a qualified professional is consulted to determine the most appropriate course of action to take. This often results in humane euthanasia of animals.


When a captive animal can be returned to the wild, the department is responsible for issuing a licence authorizing the release. Such a licence is not issued until a qualified professional has examined the animal and determined that it can survive in the wild and is not carrying any pathogens that could be harmful to populations in the wild.


You may wish to consider the impacts of the proposed changes in Bill S-203 on the current provisions of section 15(c) of the Marine Mammal Regulations that authorizes the minister to issue a marine mammal transportation licence for any marine mammal or marine mammal parts including live cetaceans to be used for scientific, experimental, educational or public display purposes if this entailed keeping the cetacean in captivity. The proposed amendments could impair cetacean research and rehabilitation activities.

Canada is a party to the Convention on International Trade in Endangered Species of Wild Fauna and Flora. To implement its obligations under CITES Canada enacted WAPPRIITA, the purpose of which includes the protection of certain species of animals and plants by, among other things, restricting trade in species in order to reduce risks to their surviving. The Minister of Environment and Climate Change Canada is responsible for the administration of CITES and WAPPRIITA. CITES and WAPPRIITA already provide for certain restrictions on the trade in all cetaceans for conservation purposes.


The species listed in Appendices I and II of CITES are controlled through an import/export permit system. Permits are issued only when certain requirements are met; in particular, the import/export must not be detrimental to the survival of the species. Environment and Climate Change Canada works closely with the department to ensure that the international trade of cetaceans is not detrimental to their survival in the wild.


In addition, I would like to make some observations related to the proposed changes to WAPPRIITA from a departmental perspective. You may wish to consider whether the proposed amendments to WAPPRIITA could prevent researchers in Canada from importing and exporting cetacean samples such as tissue and DNA, which would significantly affect their ability to conduct scientific research related to reproductive health, genetics and productivity assessments, and to track diseases. Ultimately, this might impact the government's ability to make informed cetacean management decisions based on the best available science.


In addition, the changes could have repercussions for indigenous communities in the North who rely on the international export of cetacean products, such as narwhal tusks, as a source of revenue to help secure their livelihood. The inability to export narwhal tusks would lead to approximately $400,000 in lost revenue a year.


There are presently two aquaria in Canada that the department is aware of that hold cetaceans in captivity: the Vancouver Aquarium in British Columbia and Marineland in Ontario. Both aquaria are members of Canada's Accredited Zoos and Aquariums which has that comprehensive accreditation program and code of professional ethics establishing high standards of animal care.

Currently there is one orca whale, commonly known as killer whale, on display at Marineland and approximately 50 captive beluga whales and dolphins split between that facility and the Vancouver Aquarium. The animals presently held in these aquaria would be exempted from the ban under Bill S-203.

Presently these aquaria can obtain cetaceans for public display through the private purchase or loan of an animal from another country. As mentioned previously, imports and exports of cetaceans are governed by CITES and WAPPRIITA. However, while all cetaceans are regulated, not all species of cetaceans are listed within an appendix of CITES that restricts their import or export, beluga whales and orcas being two of the species not included.


In 1996, the Vancouver Aquarium announced that it would no longer capture cetaceans from the wild for display and would care only for cetaceans who had been captured prior to 1996, born in an Aquarium, or rescued in the wild and deemed non-releasable after rehabilitation. As I mentioned earlier, the Vancouver Aquarium works with the department to care for injured animals and provides rehabilitation when a qualified veterinarian has deemed rehabilitation possible.


Overarching responsibility for the protection of animals is a complex matter of shared federal, provincial and territorial jurisdiction and the subject of numerous laws and regulations. For example, the provinces and territories have primary responsibility for protecting the welfare of animals held in captivity. Provincial and territorial legislative regimes in this area continue to evolve. In 2015, the Province of Ontario banned the buying, selling or breeding of orca whales. In addition, the province's amendment to the Ontario Society for the Prevention of Cruelty to Animals Act increased protection of other marine animals held in captivity.

In closing, I would like to mention that the government is still considering its position with respect to this bill to ensure there are no unintended consequences if it were to be adopted.

Thank you for inviting us. We look forward to answering any questions you may have.

The Chair: Thank you, Ms. Lapointe. There is a great amount of information here. I am sure we will have some interesting questions from our senators. As always, we will begin with our deputy chair, Senator Hubley.

Senator Hubley: Thank you again for your presentation.

You mentioned that you issue licences for the rescue of a stressed cetacean. You also issue a permit for its release. Do we know the percentage of rescued cetaceans that have been released?

Mr. Burns: With respect to cetaceans specifically, in the last 10 years we have issued a licence for the capture of one pseudo orca, a false killer whale, which was taken to the Vancouver Aquarium for rehabilitation and is still there. In the last 10 years we issued one licence for the capture of a cetacean for its rehabilitation outside of the site of its stranding. We have not issued a licence yet for its release as it is still there.

Senator Hubley: That doesn't seem like very many. Am I wrong in assuming that one licence for one whale in 10 years is not a lot? Are there other whales brought in from other means that you would not know about?

Mr. Burns: Not that I am aware of. Certainly there are other marine mammal rescue activities associated with cetaceans that would occur at site, for example, a stranded whale, an ice-entrapped whale and those sorts of things where the department would be engaged with its partners in that marine mammal rescue in terms of the number of animals that actually have to be taken from the site of the incident to a rehabilitation centre.

Senator Hubley: If the rescue capacity were increased, for instance if additional resources were invested in the Marine Mammal Rescue Centre at the Vancouver Marine Aquarium, would it increase the number of successful rescues across the country?

Mr. Burns: I don't know if I can answer that directly. There have not been any cetacean incidents that I am aware of where the department has not issued a licence for its live capture and transportation somewhere else because of capacity at the Vancouver Aquarium.

Senator Hubley: We have heard about the need for the scientific experiments to continue. If there were more rescues, could we also see an increase in the number of unreleasable whales available for research at facilities such as the Vancouver Aquarium?

Mr. Burns: Again I'd say I am only aware of the one incident with cetaceans where a licence was required in order for its rehabilitation. In all of the other instances either the animal was deemed appropriately euthanized at site or was able to be freed, as it were, from its stranding or its ice entrapment.

Senator Hubley: One licence, and there has been no permit for that animal's release at yet. There have been no permits issued, either.

Mr. Burns: No live release for cetaceans for rehabilitation.

Senator McInnis: I may have missed this but I want to get it into my head. I'm not contemplating starting an Aquarium in Halifax, Nova Scotia. However, if I were, what is the process? Where does the province come in? Where does the Department of Fisheries and Oceans come in with respect to licensing? If I am successful in getting such an operation in place, who does the routine inspections?

You will appreciate that we hear from and receive a great number of emails from people that swamp you. There are accusations consistently of the deaths of these whales in captivity or the cetaceans and misuse.

How would I start my business? Who would ensure that these mammals are properly protected?

Ms. Lapointe: My understanding is that the aquaria all fall under provincial jurisdiction. As well, from an enforcement and animal cruelty perspective — and my colleague from Justice can confirm this — that has also been delegated to the provinces. The department would have no inspection or monitoring role in that regard.

Ms. Klineberg: If I may clarify, I have the same general understanding that the regulation of aquaria would be a matter of provincial responsibility. Any inspections that might take place and codes with respect to best practices and so on would be at the provincial level.

There are criminal offences at the federal level. These are of general application. These laws apply, including in sectors that are regulated by provincial law. It is an offence to cause an animal unnecessary pain, suffering or injury. That is a general offence that applies to everyone in Canada. That is a criminal offence, one of a number that can apply in any context, including to the treatment of animals in aquaria.

The criminal law is not regulatory law in the sense that there are no routine inspections to ensure the criminal law is being complied with like there might be routine inspections to ensure that a law with respect to aquaria is being adhered to.

What it takes to jump over into the criminal domain would be for someone to bring a matter to the attention of local law enforcement. Local law enforcement would need to investigate. Depending on the results of their investigation, they could hand over the case to provincial prosecutors who might then decide whether or not to prosecute.

That is a different process than the regulatory one that applies in industry-specific types of activities, which is more in the provincial domain.

Senator McInnis: I thought that to be the case because when they are in captivity the ownership remains with the owners of the Aquarium, correct? Essentially that is what it is, and it would fall within the jurisdiction of the province.

Ms. Klineberg: That's right. Any law with respect to ownership, specifically, would be provincial jurisdiction, but there are criminal offences that apply to what people do to property. That doesn't exclude the application of the criminal law, as a general matter.

Senator McInnis: Yes, I understand. No one at Fisheries and Oceans conducts inspections on a routine basis, then. Is that right?

Ms. Lapointe: That is right.

Senator McInnis: If not, do you know who does?

Ms. Lapointe: Our understanding is that it is dealt with at the provincial level.

Senator McInnis: Yes, I appreciate that, but do you have any idea as to who would do that? Are we to believe that these operations exist and no one is carrying out routine inspections?

Ms. Lapointe: I can't quite recall. I think there is an organization responsible for conducting inspections. I recall having seen a recent report of one but the name escapes me at the moment. It is at the provincial level.

Senator McInnis: Is it a private organization?

Ms. Lapointe: My understanding is that it is provincial.

Senator McInnis: Under the provincial government, under a department of fisheries or natural resources?

Ms. Klineberg: One of the organizations that I think was mentioned was Canada's Accredited Zoos and Aquariums. I am not an expert on this, but I don't think that's a provincial organization. I think it is an industry-based association in the sense that whether or not compliance with the standards they set out is required by law will be determined by each province separately.

The provinces have legislation with respect to preventing cruelty to animals, some of which is general in nature like the Criminal Code. They also could have specific laws. I think Ontario has that law with respect to the use of animals in research and testing. Those laws might require compliance with the standard of care set out by the Canadian Council for Animal Care or Canada's Accredited Zoos and Aquariums. These require compliance with those types of standards as determined on a province-by-province basis.

Senator McInnis: The reason for the question is this: There are a number of accusations of dozens of these mammals being injured, killed and dying in captivity. I would like to know if it is true. It has been repeated and repeated. If it is not true, we should know that as a committee.

I'm fairly familiar with the provincial legislation, and I can't remember anything to deal with mammals in any department, certainly not in the ministries of fisheries in the provinces.

These accusations are being made out there day in and day out since this issue has been around. Since you are in charge of marine waters and navigable waters and the fish and mammals therein, I thought Fisheries and Oceans might have an interest in this or there might be a division that would look at this and tell us whether or not it is true.

The Nova Scotia Department of Fisheries and Aquaculture deals with fisheries matters that pertain to its waters and streams. Are these statements true? Has anyone in your department had any concern over the years?

Ms. Lapointe: I appreciate the concerns you are expressing, but it would fall completely outside of the mandate of our department to regulate in any way what takes place in aquaria.

Arran can confirm as well from a science perspective that we focus on research on animals that are not held in captivity. They are in the wild. Even from a science perspective, any concerns related to the health of these animals would be outside the mandate of our department.

Senator McInnis: I will not belabour it. Thank you very much.


Senator Forest: Senator McInnis raises a very important point. We receive an enormous number of emails about this, and claims of animals in captivity being abused or inadequately cared for are rampant. If I understand correctly, Marineland and the Vancouver Aquarium are the only two places in Canada where cetaceans are held in captivity.

Ms. Lapointe: That is correct.

Senator Forest: Your department conducts inspections tied to fishing activities — with respect to catch type and quotas, for example — but not for the purpose of enforcing the legislation. An impressive number of rules are in place to regulate the activity, but enforcement controls are completely lacking.

Ms. Lapointe: The rules I described do not apply to Aquariums. The department has absolutely no involvement in those organizations.

Senator Forest: If the department has no involvement in this area of activity, should it not be able to clearly indicate who is responsible for ensuring compliance with the legislation? That means the industry is regulating itself.

Ms. Lapointe: There is a Canadian organization responsible for the accreditation of Aquariums to ensure they adhere to certain standards. Fisheries and Oceans Canada enforces the statutes I talked about, but they do not pertain to Aquariums. Environment Canada is involved in the import and export of cetaceans, but Aquariums are completely outside our mandate.

Senator Forest: If we knew the organization responsible, we could reassure the constituents contacting us. In Quebec, for example, animal shelters are subject to federal legislation on animal abuse, but provincial legislation administered by the agriculture ministry also comes into play. Therefore, allegations of abuse or suspected abuse can be brought to the attention of the Ministère de l'Agriculture, des Pêcheries et de l'Alimentation, which conducts an inspection to ascertain the facts. If corrective measures are needed, they will be made.

As things stand, the waters are muddied. We have legislation, but we have no idea who can check whether the rules are being followed. That's a major concern, as I see it. We have a whole slew of rules, but we have to make sure they are adhered to.

I have one last question for you. Since 1996, the Vancouver Aquarium has not kept cetaceans in captivity. Is that the case for Marineland as well?

Mr. Burns: Not in Canada.

Senator Forest: They are caught outside the country, then.

Mr. Burns: It's possible. We have not issued any licences for the transport of cetaceans, so if they are buying cetaceans elsewhere —

Senator Forest: If I buy a cetacean, it doesn't come in the mail.

Mr. Burns: We have not issued any licences for the capture of cetaceans since 1990.

Senator Forest: You do not know, then, whether Marineland has acquired new cetaceans.

Mr. Burns: I do not know.


The Chair: Just to follow up on your line of questioning, we have on our list of potential invitees to appear before us the Canadian Council on Animal Care, a national organization responsible for setting, maintaining and overseeing the implementation of high standards for ethics in research using animals; and Canada's Accredited Zoos and Aquariums, a private charitable organization representing zoological parks and Aquariums in the country including Marineland and the Vancouver Aquarium. We'll be inviting them to our committee for follow-up questions on some of the questions we've been asking this morning.

Senator Gold: Thank you for your presentation. I appreciate that the government is still studying its position on this bill. You were elegantly discreet by inviting us to possibly consider a couple of issues, but perhaps you will allow me to try to get your opinion on some of the issues raised by the bill.

You mentioned that we might consider its possible impact, that the bill might impair both the rehabilitation of cetaceans and research on cetaceans. I have a two-part question.

First, does not the bill, though, exempt cetaceans in captivity because they're injured or for rehabilitation?

Second, with respect to research, leaving aside the possibility that if they're not for public display, they might still be able to be the subject of research while in captivity and being rehabilitated, could you comment on the challenges and the degree to which research on cetaceans is carried out in the wild?

We heard from the sponsor of the bill that there really is no problem with passing the bill because research can, after all, be done in the wild. I wonder from your perspective what are the limitations, if any, of doing research exclusively in the wild.

Ms. McPherson: I will begin with the second part of your question that focuses on research.

As my colleague Sylvie has described, the scientific program at Fisheries and Oceans Canada deals essentially with the research on wild populations to inform its mandate, so regulatory decisions or management measures need to be put in place to ensure that we're able to maintain healthy aquatic ecosystems.

One significant area of research for us is on whales, dolphins and porpoises in Canada's waters. To do that, we undertake monitoring in the wild. We have researchers who undertake a variety of research techniques using DNA, animal tissue and sometimes reproductive parts of organisms, both dead and alive. One of the fundamental tenets of our work or one of the key ingredients to an active research program is collaboration.

A number of our species are transboundary such as the southern resident killer whale in B.C. and the North Atlantic right whale on the east coast. We work closely with our U.S. counterparts in both these cases in our research programs to look at reproductive rates of an animal and whether changing climate might be impacting population status.

These types of studies require us to send samples of tissues or sometimes parts of an animal across international borders. I would invite you to consider whether or not the current formulation of the bill would allow that to continue because that's an essential part of the work we do.

An equally important part is in the sad circumstance where we have a dead animal, a dead whale, and we want to undertake an examination, a post-mortem, if you will, of what are the factors that caused the demise of that animal. We do that sometimes in house with departmental scientists, but again sometimes we use partners, experts and laboratories in other countries around the world to provide us advice on diseases and genetic abnormalities that might have caused the animal's fatality.

With this information we can then take steps on the management side of our organization to try to mitigate those potential issues. Again, there may be wording in the current draft that would potentially impact our ability to do that.

Senator Gold: Would you be in a position yet to identify that wording or to suggest changes that would alleviate your concerns that the bill would impede your legitimate research objectives?

Ms. McPherson: I'm a scientist. I'm not a legislator or a lawyer so I wouldn't be able to offer that. I just wanted to leave you with those thoughts.

Senator Gold: Thank you.

Senator Plett: Thank you, Ms. Lapointe, for a great presentation. I had a list of questions I was going to ask that you answered in your presentation, so I thank you for that.

I want to confirm, and I think you did say this, that both the Vancouver Aquarium and Marineland would be considered the partners that you talked about.

Ms. Lapointe: In the case of the Vancouver Aquarium, yes, I did talk about the fact that we had done some work with them.

Senator Plett: Okay, but not with Marineland.

Ms. Lapointe: Not that I am aware of.

Senator Plett: The follow-up questions would be more for Justice or maybe not.

Starting in 2012, Ontario underwent a three-year legislative and scientific review process, including the creation of an independent and international scientific advisory panel, receipt of its comprehensive report, the creation of a technical advisory group and public hearings, after which the provincial legislation and provincial regulations governing the care of marine mammals were set.

The legislation expressly permits keeping marine mammals in human care and creates and implements very stringent regulations regarding the care and treatment of marine mammals.

You already answered my first question, so I will go to my second one. Given Ontario's comprehensive legislation and regulatory framework to deal with the keeping of cetaceans in human care, does this bill not encroach on or possibly trample all over provincial jurisdiction?

Ms. Klineberg: I will preface my answer by reminding this committee that my expertise is in criminal law. That question is properly framed as a constitutional law question, but because I encounter these sorts of questions in a variety of different contexts quite often I feel fairly confident advising this committee that there can be overlapping jurisdiction of the same kind of context or conduct.

A matter can be subject to provincial regulation under provincial heads of power such as property and civil rights while simultaneously being subject to regulation federally as a matter of criminal law. Where there would be a conflict between those two laws, the federal criminal law would be paramount.

In other words, just so that everyone is absolutely clear, the provincial law would not oust the application of the federal criminal law, but rather it would be the reverse. That's the constitutional convention in Canada.

Senator Plett: Since you are a criminal lawyer, I will ask you this: It seems to me that only way the architects of this bill could make this issue within federal jurisdiction is to actually criminalize the behaviour, meaning that for this bill to proceed the Criminal Code provisions must remain intact.

Then I will ask this: Even with the proposed amendment making this a summary offence, which Senator Moore explained to us the other day, could the accused upon conviction end up with a criminal record and potential jail time?

Ms. Klineberg: Thank you, senator. I think there are properly understood two parts to that question.

The first part is where I will declare that I'm not the right person to answer the question of whether the criminal law would be the only federal jurisdiction under which legislation dealing with cetaceans in captivity could be enacted.

There may be other heads of power, and I would recommend to this committee that you invite someone with expertise in constitutional law. We have such colleagues at the Department of Justice who may be better able to answer that aspect of the question.

The second part of your question was about changing the penalty structure of the offence that's proposed to go in the Criminal Code, and the answer to that question is yes. Even if it were made simply a straight summary conviction offence it would still be properly understood a criminal offence under the criminal law head of power and any consequence resulting thereof would be a criminal consequence.

Senator Plett: In light of the fact that you're hesitant to answer the other questions, I won't ask them.

Senator Gold: This is a follow-up on Senator Plett's question or maybe more of a comment.

Federal paramountcy applies regardless of the head of federal power so that to the extent that the bill could be supported under the fisheries power — I'm not saying it can or cannot — it would still prevail in the case of a conflict with provincial law.

The constitutional lawyer in me was compelled to add that clause but you answered it perfectly correctly. Thank you.

The Chair: Thank you, Senator Gold. We may call you as a witness later on.

Senator Hubley: I have a supplementary question along the same line.

Bill S-203 proposes to create a practice specific animal cruelty offence of breeding cetaceans. Is that going to come under the federal law, or is that going to come under provincial jurisdiction?

Ms. Klineberg: It's true that the current animal cruelty offences in the Criminal Code are of a general nature. Most of them apply to all animals. There isn't anything specific to one type of animal, but I'm not aware of any constitutional, criminal or other type of legal principle that would make it unacceptable, inappropriate or unlawful, for instance, for Parliament to criminalize a very specific form of activity.

It's not the specificity that would render it either federal or provincial. The question is: What is the dominant purpose the legislation is seeking to achieve? If the purpose is to condemn a practice as morally blameworthy and to seek to denounce that practice and punish offenders who engage in that conduct, that's the nature of criminal law.

If the fundamental purpose is in the nature of public interest to protect or to seek to ensure compliance with a set of rules that are generally in place for the effective and safe carrying out of certain activities, that's more in the nature of regulations over specific activities one at a time. That's more likely to fall under the provincial heads of power.

It is really the dominant purpose for which a provision is enacted that speaks to the head of power so that the jurisdiction is either federal, criminal as in this particular case, or provincial.

The Chair: I haven't heard from any other senators so I want to thank our witnesses for taking the time to join us this morning. You have provided us with important information as we go forward. Certainly, as always, we reserve the right to call you back as we proceed with our study of Bill S-203. Thank you very much.

I will ask the senators to the wait for just a few minutes. I want to go in camera and have a discussion for five minutes.

(The committee continued in camera.)