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