THE STANDING SENATE COMMITTEE ON AGRICULTURE AND FORESTRY
EVIDENCE
OTTAWA, Thursday, September 26, 2024
The Standing Senate Committee on Agriculture and Forestry met with videoconference this day at 9 a.m. [ET], to examine Bill C-275, An Act to amend the Health of Animals Act (biosecurity on farms); and in camera for consideration of a draft agenda (future business).
Senator Robert Black (Chair) in the chair.
[English]
The Chair: Good morning, everyone. It’s great to see you here. I want to remind everyone in the room and our witnesses to consult the cards on the table for the guidelines about using our headsets and microphones to prevent audio feedback incidents. If you would please check that out, that would be much appreciated. That’s to protect our colleagues who are doing the transcription and other activities. Thank you for your cooperation.
I would like to begin by welcoming our committee members, witnesses and those watching on the web. My name is Robert Black; I am a senator from Ontario, and I chair this committee. I will ask our senators to introduce themselves, starting with our deputy chair.
Senator Simons: Good morning, I’m Senator Paula Simons. I represent Alberta, and I come from Treaty 6 territory.
[Translation]
Senator Oudar: Good morning. Manuelle Oudar, division of La Salle.
[English]
Senator McNair: Good morning, I’m John McNair from New Brunswick.
[Translation]
Senator Dalphond: Good morning. Pierre Dalphond, division of De Lorimier, Quebec.
[English]
Senator Pate: Good morning. I’m Kim Pate, and I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
Senator McBean: Good morning. I’m Marnie McBean from Ontario.
Senator Marshall: Elizabeth Marshall, Newfoundland and Labrador.
Senator Plett: Don Plett. I’m from Manitoba.
[Translation]
Senator Mégie: Marie-Françoise Mégie, Quebec. I’m replacing Senator Petitclerc.
[English]
Senator Muggli: Good morning. I’m Tracy Muggli from Saskatchewan, Treaty 6 territory.
The Chair: We continue our examination of Bill C-275, An Act to amend the Health of Animals Act (biosecurity on farms). We welcome the following witnesses, who are appearing as individuals: We have Angela Fernandez, Professor, Faculty of Law, University of Toronto, who is with us in the room; and online we have Jodi Lazare, Associate Professor of Law and Associate Dean (Academic), Dalhousie University. Welcome and good morning.
You will each have five minutes to make your presentations. At the end of four minutes, I will notify you. When you see two hands up, it means it is time to wrap it up. With that, the floor is yours, Ms. Fernandez.
Angela Fernandez, Professor, Faculty of Law, University of Toronto, as an individual: Good morning. Thank you for the opportunity to testify here today.
My name is Angela Fernandez, and I teach animal law at the Faculty of Law at the University of Toronto.
My knowledge of Bill C-275 is based on coverage of the bill’s movement through the House of Commons and the Senate as reported in the Canadian Animal Law Digest. This is a service that provides bimonthly updates on Canadian animal law, which I supervise at the Faculty of Law at the University of Toronto.
In these stories, criticisms of the bill have focused on its exclusive applicability to individuals present on a farm “without lawful authority or excuse” to be there and its failure to apply to on-farm workers, when evidence shows that on-farm workers are the ones responsible for disease outbreaks. In other words, they are legally present; they are not illegally present. It’s the legally present people who are the problem in terms of biosecurity.
This exclusion of on-farm workers and exclusive focus on those coming onto the property without a lawful reason to be there suggest that the bill is actually targeted at that latter group of people, that is, trespassers.
There are two problems with this exclusive targeting of trespassers. First, if the bill is meant to target trespassers coming onto farms, then its title is misleading; it is not really about biosecurity on farms. You might ask what the big deal is about the mismatch between the title and the substance. In constitutional law, if you have a mismatch between the substance and what’s sometimes called the purpose and effect of a statute, this can be called “colouring the law with a substitute purpose,” a doctrine known in constitutional law as “colourability.”
This constitutional law doctrine specifically describes a situation in which a statute has the formal trappings of being about a certain matter, but it is not really about that matter. This is a problem if that matter falls outside the jurisdiction of the government that is passing it — in this case, the federal government.
Peter Hogg, a pre-eminent constitutional law expert in Canada, explains colourability in the following way:
The courts are, of course, concerned with the substance of the legislation to be characterized and not merely its form. The “colourability” doctrine is invoked when a statute bears the formal trappings of a matter within jurisdiction, but in reality is addressed to a matter outside jurisdiction.
So that’s the issue.
When looking at sections 91 and 92 of the Constitution Act, 1867, we ask what the “pith and substance” of a law is. That is to say, what is the matter to which the law relates, looking at both its purpose in terms of intrinsic and extrinsic evidence and also its effects?
With Bill C-275, there is ample evidence in the record — from parliamentary and Senate debate, as well as committee discussion — that the purpose and effects are to single out those who are unauthorized to be on a farm, ignoring the more significant biosecurity risks posed by those working lawfully on the farm, effectively targeting trespassers.
What’s wrong with that? Trespass falls under provincial jurisdiction; it is a matter taken up in provincial statutes. That is because it is about protecting “Property and Civil Rights in the Province.” That’s classic provincial jurisdiction under section 92.13.
There can be overlap between provincial and federal jurisdiction. This is permitted and is called the “double aspect doctrine.” You can have a provincial statute, and the one I pulled out for you to use as an example is the Animal Health Act in Ontario, which deals with biohazards relating to farm animals. But you can also have a federal law like the one in question here. That’s okay, and federal jurisdiction is okay under the criminal law power, which is section 91.27, because criminal law can cover health and public safety, but what’s not okay is to have a law that says it is about biosecurity but is really not, and actually it is about something that falls squarely within provincial jurisdiction — property and civil rights.
If the law is not about biosecurity, despite the fact that the word is in the title, that would put the government in the unenviable position of authoring a colourable attempt to interfere with the provincial law of trespass under section 92.13. If the record shows — as it does here — that the purpose and effects of the law are not in pith and substance about biosecurity, then that’s going to be a problem.
In sum, then, the federal government can approach the health of animals in its act as encompassing biosecurity, but the amendments must actually be directed effectively at that problem and not be about other problems facing farmers, relating to activists and those who occupy farms and so on. Thank you.
The Chair: Thank you. Now we will hear from Ms. Lazare.
Jodi Lazare, Associate Professor and Associate Dean (Academic), Dalhousie University, As an Individual: It is a privilege to be here, thank you.
My name is Dr. Jodi Lazare. I am an associate professor at the Schulich School of Law at Dalhousie, where, since 2014, I have taught the mandatory constitutional law course and, since 2017, a seminar called Animals and the Law.
I previously held a research grant from the Social Sciences and Humanities Research Council of Canada to study and publish on the constitutional dimensions of animal rights advocacy and farm trespass laws.
I will use my time here to touch on my primary concern with the proposed bill. As I said in the House committee almost a year ago, it might not correspond with the constitutional division of powers; the bill in its current form might well be outside the jurisdiction of the federal government.
Some of the discussions about this bill have suggested that statutory consistency across provincial jurisdictions is a worthwhile goal. I agree. Uniform federal legislation would often be more efficient and effective than a patchwork of different provincial laws. However, as we have just heard, the nature of Canada’s constitutional structure means that it is not always possible to have consistency across provinces, and the federal government can’t force consistency if it is acting outside its area of jurisdiction.
I understand that this bill purports to improve biosecurity on farms, that it is in some part maybe about protecting animals and food safety, but it has also been stated very clearly, as we’ve heard, that this bill is primarily about trespass. In light of those statements, I will take you through my thinking on the constitutional issues here, similar to Professor Fernandez.
In determining whether a law was properly adopted by a particular level of government, courts look at what the law actually does. They look at a law’s purpose and its effects to uncover what is known as its pith and substance or dominant feature. Courts might look at the context of the adoption of the law, perhaps the current events motivating its introduction — those are certainly relevant here — and at speeches, debates or hearings like this one, all of which, in the present case, clearly suggests that this bill is not, in its dominant feature, about protecting biosecurity. That is because, in addition to what has already been said about it being a trespass bill, and as this committee has already heard, biosecurity threats on farms are not in fact driven by trespassers, protesters, activists or people without lawful authority to be on the farm.
You’ve heard that the Canadian Food Inspection Agency, or CFIA, records show that there is no documented evidence or instances of an activist or trespasser introducing disease onto a farm and that the greatest risks to animals are transmitted from farm to farm, from workers, suppliers, machinery, et cetera, going between farms, from birds, wildlife — in other words, not from people who are present illegally.
From a constitutional perspective, in my view and as has been repeated here, this is a trespass bill that may or may not, based on the evidence, have incidental or secondary effects on biosecurity. It is quite clear that this bill is about shutting down activism and trespass, about protecting animal agriculture. In fact, it has been explicitly stated a few times now that this bill is about the protection of private property. As we heard and as we know, these things fall under the provincial jurisdiction over property and civil rights. Legislation governing private property is not, in other words, part of the federal government’s tool box, so to speak.
The fact is that all provinces have trespass laws. Some have laws specific to trespass on farms, although one of those was recently struck down in part. In fact, P.E.I.’s legislation contains some of the exact same wording as this bill and has not been subject to any constitutional questioning.
I want to be clear here. I’m not suggesting that Parliament cannot legislate to protect public health and safety and biosecurity on farms. Parliament certainly can do this, probably under the criminal law. My submission, rather, is that as it is currently written, that is not what this bill does, because it does not actually target the most likely sources of biosecurity risks according to the CFIA. Thank you.
The Chair: Thank you very much. We will proceed now with questions from senators. Again, senators, you will have five minutes for the questions and answers. When we get to a minute, I will put my hand up again. With that, we will start with our deputy chair, Senator Simons.
Senator Simons: Thank you very much to both of our witnesses for those very cogent analyses. I ask this question to each of you: Do you think that the colourability and jurisdictional issues are acute enough that if someone went to court to challenge the laws on constitutionality, that would be a good faith challenge?
Ms. Fernandez: Yes, I think it would be a good faith challenge. There would be quite a lot of support for doing that. It is not a slam dunk. Legal analyses never are a slam dunk, and the devil is always in the details, but there is a real risk, I think, for the government to do this and that it could very well be strongly challenged.
Ms. Lazare: There is case law where governments have said things in committees and in parliamentary debates about what a law is trying to do but then put it in other terms, as Professor Fernandez has suggested is happening here and as I think is happening here as well. Courts will look behind the purported name or function of a law to see why it was adopted, what its actual effects are, what its practical effects are, and they have struck down ultra vires or invalid legislation on that basis. Yes, absolutely, I think there are definitely grounds here for a successful challenge.
Senator Simons: I will ask this question of Professor Fernandez: In our Tuesday hearings, we heard testimony that none of the biosecurity protocols in Canada are legally required and that they are voluntary. Sometimes producer associations will have their own codes of conduct, but there is nothing in Canadian law that makes those biosecurity protocols legally binding, nor is it incumbent on farmers to report outbreaks of infectious disease on their farms. There is no legal requirement that they tell anybody.
In such circumstances, you could imagine a scenario where if this bill were to pass, somebody might be charged under the terms of the bill and receive, potentially, a very high penalty for trespass that allegedly creates a biosecurity risk, but at the same time, that farm is not required to have any biosecurity protocols, nor is that farmer required to report if there is an outbreak. Do you think that would make the colourability issue more acute?
Ms. Fernandez: Yes, that’s very interesting. I didn’t have a chance to watch the Tuesday hearings, so I’m not sure exactly what was said, although we did take a quick look at the testimony just before.
The fact that the measures are voluntary for farm animals — as you on this committee would know, most of the practice for farm animals is of that voluntary sort because the codes, the National Farm Animal Care Council, or NFACC, are not legislatively passed. They’re not really laws; they are recommendations or codes or things like that. The way it is for biosecurity is quite in keeping with that.
Do I think that is a good idea? No, I don’t think so. I think that you should have something that’s legally required, but the right way to do that would be to have a biosecurity bill that really is a biosecurity bill, one that would require farms to do things like, as you say, report when there is an incident within 24 hours or 72 hours or whatever it is that experts on that would recommend.
All of that argument is to say yes. But an amendment to the Health of Animals Act is not really the way to do this. The Health of Animals Act is not really about that. It’s not going to take care of your biosecurity risk because it is not targeting the source of the risk.
Senator Simons: What I am worried about is the hypocrisy of saying that the intruder has broken a law that the farmer is not obligated to follow.
Ms. Fernandez: Yes, I get that, but there are lots of inconsistencies between different rules and regulations and things. I would think that if you want to go after the inconsistency, you would want to do it directly. The problem with this is that it is doing something completely differently. It’s not even biosecurity; it’s doing it indirectly. There is also this role in constitutional law that you can’t do something indirectly that you can’t do directly. So, yes, you would want to think about consistencies, but you would not want to think about it via an amendment to the Health of Animals Act.
The Chair: Thank you.
Senator Plett: Thank you to the witnesses. I have a few comments before I ask a question. Of course, it is entirely incorrect that farmers, veterinarians and producers are not required to report diseases. There are 51 animal diseases that they have an absolute legal obligation to report. For people to say they are not obligated to report is directly false.
Professor Fernandez, at the start of your comments you said that it is a fact — I don’t want to put words in your mouth here — that the security risks or the diseases have been proven to have come from people legally on the farm as opposed to people illegally on the farm. Of course, there is no proof that this is the case, either. Since it cannot possibly be proven that it has come from off the farm, there is no proof that it has not. So let’s at least stick to the facts there.
The producers, the CFIA and the farming industry are trying to put protocols into place that help save the farms from getting diseases.
In my 15 and a half years here in the Senate, I have never been part of a bill where the opponents to a bill have not managed to find a lawyer who says it is unconstitutional, yet we have lawyers who have been passing these bills over in the other place and here. In fact, this bill was voted in favour of by all Conservatives and 133 Liberals. I’m sure there were a few lawyers in that crowd who believe this bill is constitutional. So let’s deal with the bill properly, and if it is unconstitutional, it will be declared unconstitutional at some point. That doesn’t mean we should not be doing our jobs today.
The bill specifically focuses on biosecurity issues. Given that animal diseases can cross provincial borders and impact international trade, don’t you think it is reasonable for the federal government to have a role in preventing these biosecurity threats? How do you reconcile your claim of unconstitutionality with the fact that the federal government already regulates biosecurity under the Health of Animals Act, which this bill seeks to amend?
That is for either of the witnesses; I’m happy to hear from you. I addressed Professor Fernandez more directly, possibly, but I am willing to hear from either one of you.
Ms. Fernandez: Biosecurity threats across borders — absolutely. We went through COVID-19; we all know how that works. I think the point is to ask how we effectively target that. If you really want to effectively target it, shouldn’t it be a biosecurity bill? And it shouldn’t be specific to farm animals, right?
I was talking to my students yesterday before coming here, and one student said that his parents have a vineyard and they have to be very careful about diseases coming onto the vineyard and affecting the grapes, et cetera. So the people who work there and anyone who comes to visit have to put their boots in the disinfectant and follow the protocols. So people recognize that these are things you need to do.
The point is that in this amendment to the Health of Animals Act, would you say it is already regulating biosecurity? I would be interested to see the provisions for that because there is some mention of it when it comes to hatcheries, but it is not really extensively in there as far as I could see, in any event. Perhaps Professor Lazare might have something to add to that.
Ms. Lazare: Sure. We’ve all filled out customs forms that ask if we have been on a farm in the 14 days prior to crossing the border. That’s a legitimate exercise of the federal government’s jurisdiction over, say, international trade, commerce and borders, generally.
Do I stop now?
The Chair: You have 40 seconds.
Senator Plett: Please be quick because I want to address that.
Ms. Lazare: I was going to say that other than that, to my knowledge, the federal government does not actually create biosecurity standards for on-farm protocols. There is a patchwork of provincial and federal laws and guidelines and some voluntary industry guidelines — we heard reference to the NFACC codes — but there is no —
Senator Plett: Then, professor, let’s improve the bill; let’s not throw the bill out. You may well be right, and maybe we should do more.
Ms. Lazare: Absolutely.
Senator Plett: But both of you have said the bill doesn’t do enough, so let’s improve it. Let’s suggest some amendments. Don’t say it’s unconstitutional and throw out the baby out with the bathwater. Let’s improve it.
I will go on the second round, please.
[Translation]
Senator Oudar: Thank you to the witnesses. My question is for Ms. Fernandez. I’m going to ask my question in French, but you may answer in your preferred language.
Since Tuesday’s meeting, when we heard from other stakeholders, I’ve felt very uneasy because we heard everyone say that biosecurity was important. Dr. Hajek and Dr. Greer said so, and today we heard you say the same thing. On the other hand, everyone has confirmed that this is done on a voluntary basis and we’re hearing it again today. The agency doesn’t do any monitoring and has no data. Everyone has to develop their own safety standards. There’s no incident tracking either.
In other words, we have no picture of the biosecurity situation. In closing, Dr. Greer also said that farmers have a very good understanding of biosecurity. The agency says it trusts farmers to set standards. Farmers’ associations must have their own data, so each of them is responsible. Everyone knows I have a hard time reconciling the fact that farmers are supporting this bill. What’s more, the professors say that farmers and farmers’ associations are very well placed to develop biosecurity standards. You can understand my discomfort today. There aren’t any more elaborate standards and there are no inspections. I don’t want to get into the federal-provincial debate or provincial responsibility. My concern, and it’s likely the concern of Canadians watching at home, is why isn’t biosecurity being addressed? If people are saying that the farmers are well placed to develop standards, why shouldn’t this bill be passed?
[English]
Ms. Fernandez: Yes, that’s a great question. Thank you for it.
The concerns you raised are very serious, and you are quite right: They are very worrisome and would be very troubling to anyone following this. But would anyone following it wonder why something more ambitious is not being done? This won’t do anything about these problems of no data or even targeting the real, actual threats, as far as we can tell. The evidence for that is the CFIA themselves saying that this is mostly coming from legally present workers and other people on farms — not people illegally on the farms. So we’ve got this big problem, and we’ve got something way over here that’s flying right past it.
I think you are right. The jurisdictional wrangling is always there. We always have this with 91 and 92, but if you are looking at this and wondering what this amendment is trying to do, it is so partial as to be a problem because it is now creating another problem, which is that you are targeting out the trespassers.
If the problem really is what is happening on the farms on the day-to-day basis, the farmers should be involved in determining what the solutions to that would be. I don’t think that should be specific to farm animal farmers; it should be all farmers if we are talking about food security, food supply and so on.
That’s to say that I share your concern, and I don’t think it would be a good idea to have a bill passed that makes people think something has been done about this problem when nothing really has been done; it is just about something else way over here that has its own problems.
Senator Marshall: Thank you to both our witnesses for being here.
When I read that part of the amendment, 9.1, it does not disallow all trespassing. The trespassing is qualified in that it must reasonably be expected to result in the exposure. It seems like the amendment has a very narrow focus to me. I would appreciate your comments on that. How narrow or how broad is the amendment? It seems to me it is a very narrow focus.
Looking at it in that way, based on your experience or knowledge, have there been a lot of past trespassing cases that would fit the criteria outlined in that proposed new section 9.1?
Ms. Lazare: In short, the answer is no. As we’ve said, there are no documented instances of trespassers bringing disease onto the farm. That means, in effect, this purported biosecurity bill does nothing. As we heard, it might make people feel better by creating an amendment with the word “biosecurity” in it, but no, there have been no instances of trespassers bringing disease onto a farm. Therefore, the impact of the bill would be virtually nil.
If I may answer a question from earlier about how we might amend the bill instead of throwing the baby out with the bathwater, if the bill applied to anyone who entered onto a farm, if anyone who was at risk of bringing a contaminant or disease onto a farm could be liable, that would be a biosecurity bill. That would be something that the federal government could do under its jurisdiction over the criminal law, which covers public health and security. As the bill currently stands, it is a trespass bill; it doesn’t target biosecurity. I think that answers your question. I can elaborate, if you like.
Senator Marshall: Thank you. Ms. Fernandez?
Ms. Fernandez: Yes. I would say with trespass, they are already provincially prohibited to do that. You go in unlawfully without the person’s permission. It’s a low bar in terms of what is required for that to actually get triggered. There is a sense in which having it on a federal level is not just that it’s outside jurisdiction; it’s also unnecessarily duplicative.
Here, it’s an augmented trespass because it’s attaching higher fines with possible prison time for that. That is exactly what Ontario was trying to do in its Security from Trespass bill, and that has been struck down. In those hearings that happened last November in Toronto, the judge was concerned about the fact that this is already a crime. Making it an über-crime is problematic and probably, he said, unconstitutional. For the federal government to come along and try to do something that isn’t even as fully thought out as that but also outside the jurisdiction just seems misplaced.
Senator Marshall: To clarify, the amendment itself isn’t focused on all trespassing. When I read the amendment, it’s focused on trespassing if it “. . . could reasonably be expected to result in the exposure of the animals to a disease or toxic substance . . . .”
To me, reading the amendment, you are not focusing on all trespassing; it’s a specific kind of trespassing. It’s a narrower focus. I would appreciate your views on that.
Ms. Fernandez: Yes. The previous version of the bill didn’t have “reasonably” in it. Probably adding “reasonably” was an improvement. You still have that term. In law school, we talk about this with the students all the time. It’s such a weaselly term because you can pretty much put “reasonably” into anything.
If this were to be amended to apply to anyone coming onto a farm, imagine what you would have to think about if you’re going to enter. Could I reasonably maybe bring something? I don’t know. I’m bringing my shoes. My shoes were previously in Canadian Tire, and there is soil in Canadian Tire. I don’t know. It’s very vague.
Senator Marshall: Very vague. Thank you.
Senator McBean: Thank you. Yes, I think that gets to the probable and possible conversation that we had yesterday with Dr. Greer.
Professor Lazare, I would like to respect the farmers’ goal here to increase their biosecurity, but I also want to protect the transparency of whistle-blowers. Would you say that if an employee sees animals being treated poorly and becomes a whistle-blower, could they end up being prosecuted under this law? We have heard that if a journalist were to get an undercover job and then report back — can it be reverse-engineered that way? Do you see any worries in that?
Ms. Lazare: Depending on the outcome of the litigation in Ontario, where it’s illegal to lie to enter a farm — an undercover journalist, for example — they would be on a farm illegally. The way the two laws would interact is that they would be on a farm illegally because it’s deemed trespass if you fail to disclose who you are when entering a farm.
As we just heard, “reasonably possible” is pretty broad, so I would say yes, an undercover journalist or someone who gains entry onto the farm by failing to disclose their affiliations would be there illegally, pursuant to the Ontario law, which would then mean they would be captured under this law as well.
Senator McBean: Could there be any concern for a worker who was not a journalist who then reported and became a journalist or became part of that discovery? For someone who entered lawfully, who intended to become a farmer or a farmhand or work legally on the farm but then was concerned with what they saw, is there any worry that that person could then be deemed to — like, when did they become a journalist?
Ms. Lazare: It’s really a question of interpretation and how one would define whistle-blower or journalist. I guess there is a risk there. As I understand things, it’s not as great a risk as someone who enters a farm knowing that they are looking to document farm practices. It’s a question of interpretation and the ways that the court would interpret the interaction between the two laws.
Senator McBean: Professor Fernandez?
Ms. Fernandez: I would just add that you have to think about it practically, too. If someone is there as an employee and they are thinking about doing that, they are legally present. Technically, this federal version shouldn’t be triggered. The Ontario version, as Professor Lazare says, is another question. The federal law should not be triggered.
The question is how reasonable it is to expect people to parse through these fine nuances when they are in that situation. I would say it’s not reasonable, and it will be confusing. If that is the intended effect, to try not to have people talking publicly about what they are seeing on farms sometimes, is that the point of the bill? If that is the point of the bill, then are you definitely running into constitutional, free-speech problems.
Senator Pate: Thank you. The other night, Dr. Rasmussen spoke about the real issues around biosecurity, which are often other animals coming in, as well as the soil issues that have been raised and on which there seems to be a lot of focus. It struck me. I ended up thinking, how do we regulate these kinds of issues? It seems like the bigger issue, as she mentioned, is creating incentives for farmers to actually self-report to try and stem the tide of things like the swine flu and those sorts of things.
Both of you are legal experts. How would you see us, at the federal level, being able to regulate or suggest changes to which laws and in what context to try to address some of those issues, if at all? That is a question to both of you, please.
Ms. Lazare: If I may, the federal government has jurisdiction. It could be via the Health of Animals Act or a biosecurity statute, provided it is grounded in questions of health and safety under the criminal law power. I think an enforceable, binding statute would create some real incentive for producers and farmers to respect those measures.
Right now, as we have heard, they are voluntary. If they were not voluntary, and if there were consequences — I do not know whether that’s in terms of licensing, market share or what have you, just fines — that would probably go a long way.
Ms. Fernandez: Yes, I totally agree. I would just say that self-reporting is often the lowest-cost way to do something but not necessarily the best way to do something. Especially if you are in a situation where the economic interests are cutting against safety — that it’s going to cost more and be more cumbersome to take the safer route — it’s not that realistic to expect people to voluntarily do that. You will have to require them to do it.
This goes back to the earlier question, which is the debate about this: What it is really shining a light on is the real need for this in the post-pandemic world.
I think that you want to be super careful about giving the public the impression that something is being done about this when this is not really what this particular bill and the amendment to this particular bill are about.
Senator Burey: Thank you for your expert testimony.
I have come on the Agriculture Committee, and we always have the most interesting bills to deal with, with all kinds of curveballs.
Senator Oudar spoke about farmers and producers wanting to do the right thing because there is a business case for them in trying to keep their animals safe and biosecure. Also, the mental health stresses that come when people come in — as a physician, I know through COVID I was so stressed if people would come in and you were not able to control the environment. I am looking at it from that angle.
Looking at the biosecurity versus the trespassing, which you rightly say, Professor Fernandez and our other eminent professor, that if it is not truly a biosecurity bill and it is really more about trespassing, then one of the remedies may be — I am speaking about the amendment which was taken out of this bill in Bill C-205 in the Agriculture Committee in the Forty-third Parliament so that it would apply to any individual entering the animal enclosure regardless of whether they had a lawful authority or excuse to be there. Can you comment on that aspect, which was raised already by Professor Lazare?
Ms. Lazare: Sure. Yes, thank you. That would be a good solution. It would actually address biosecurity. It would perhaps actually capture some instances that have already happened: disease outbreaks that are from cross-farm movement, equipment, people, suppliers, feed suppliers, workers, what have you. The evidence suggests those are the people who are much more likely to bring disease onto a farm.
In my view, and I guess in the view of the majority of the committee that studied this bill in 2021, that would be an appropriate amendment — to make the prohibition on creating a risk of biosecurity hazard to apply to everyone on a farm, whether they are there legally or not, yes.
Ms. Fernandez: I would agree with Professor Lazare. That consistency would be a huge improvement from a constitutional perspective, absolutely, because it gets rid of treating people on the farm illegally differently than people on the farm legally. Then it is not going to look in pith and substance as if it really is a trespass act called a biosecurity act. You would solve that problem.
Unfortunately, though, you are still going to have the problem of these augmented trespass penalties. Then, you want to ask whether farmers want to be putting their employees at risk of augmented trespass findings because they are not sure whether when they went to Canadian Tire and got soil on their boots and came to work on Monday morning, they will end up with a maximum $250,000 fine. I cannot imagine that would be welcome and a good way to go.
You are totally putting your finger on the problem in terms of the inconsistency. It is a real problem. We have to do something about the inconsistency, but then you will also now have to look at what those penalties are.
Senator Burey: When Dr. Ireland came, the head of the CFIA, it came across that there is a delicate balance with the system that you have now, and they really rely on producers.
You know what is happening with H5N1 in the dairy industry in the U.S., but Canada, through its patchwork, has been able to keep H5N1 out of Canada. You think, “Will I tip the balance by having a heavy hand on the producers, when somehow we’re able, through this voluntary patchwork, to keep things out?” We do not have the African swine flu. We have all of those things. That is my thinking. Your comments, please.
Ms. Fernandez: I don’t know. Personally, I feel with that patchwork you are living on borrowed time.
Ms. Lazare: Fifteen seconds?
Senator Burey: Go ahead, please.
Ms. Lazare: Maybe we’ve kept H5N1 out, but during COVID-19, for example, minks were catching COVID from workers on farms. It is difficult to say whether the balance is correct right now.
Senator Dalphond: I am sure that Senator McNair, like me today, is quite excited to hear about the colourability attempt and pith and substance. It brings back a lot of memories to me.
You say essentially it is a colourable attempt. If it were challenged before a court, there is no presumption that the bill is a colourable attempt. There would be a presumption that it is a valid legislation and it would be on those challenging it to show that it is a colourable attempt. We all agree on this. Thank you.
My question is about the proposed subsection 65(1.2), which deals with persons who are not individuals, which means organizations and associations. I read it as is its true meaning, which is that every association that contravenes section 9.1 is guilty of an offence punishable with a fine not exceeding $100,000 or $500,000 if they are charged with an indictable offence.
What is the purpose of those sections to ensure biosecurity? Is it to prevent bioterrorism, I suppose? It is an organization that is encouraging people to do what is being prevented by 9.1, which is to trespass a property in order to expose the animals to a risk. Isn’t that a criminal offence?
Ms. Lazare: It looks like it is targeting organizations like animal rights organizations, places that have historically entered onto farms to expose violence against animals and industrial farming. It looks to me like a criminal law, yes, with a very high sentence.
Senator Dalphond: I wonder about the necessity of that. One of the big cases referred to us is the Saint-Hyacinthe case, a pig farm, where we saw pictures of the protesters who went onto the farm. These trespassers, maybe activists, part of an organization, were fully dressed up in special biochemical shoes, plastic covers, face masks. In such a case, that infraction would not be committed. The organization can say, “Go there but make sure that you are fully bioprotected.”
Ms. Fernandez: That is a very interesting thing that you see. Part of the reason why that is being done is because — well, I’m guessing; I do not know for sure — people who are organizing those kinds of events are very aware that they could be potentially harming the very animals that they are seeking to speak for and to protect. So they are taking steps themselves to make sure they don’t do that because that is the last thing they want to do, and that is probably why there is no documented case of it ever happening.
The amendment to the bill has got it backwards. Those are not the people that you need to be worrying about. You certainly do not need to worry about the organizations. The incorporated NGO is not coming in with any germs on them. They are not even a tangible entity, right? The bill has got it backwards. There is no concern for what the real source is. Then there is an augmented, as you say, very heightened criminal law with these kinds of numbers for the fines on the people who are the people who, at least historically on this, have been more careful.
Senator Dalphond: Thank you.
Ms. Lazare: I was going to agree that the fact that activists are wearing, essentially, hazmat suits or what have you tracks with the absence of evidence that disease outbreaks have ever been attributable to trespassers or protesters.
Senator Dalphond: Thank you.
Senator Richards: Thank you. I am sorry for being late. I was caught up in traffic because of who is here today. Thank you to the witnesses.
Trespassing is still illegal whether pathogens are released or not into the farm. That is one of the major stumbling blocks of this bill: Trespassing is illegal. I would not want anyone breaking into my little shed at home in New Brunswick or trampling a little grain field that I have. I would not want that, and no one else would want it either, so it is illegal. It should be dealt with as being illegal if it is illegal.
What we are talking about here is that trespassers, especially organized ones, like animal rights activists, rarely have the farmer’s welfare in mind. They are there to stop the farmer. We know the back end of this process is the slaughter of animals, and they are deeply offended and against that. The idea that they, in a way, want to protect the farm — they do, they want to protect the animals, but they don’t want the farm there. That is the biggest problem with trespassers. They do not want that industry there. That is the real problem to me with this bill or any bill that deals with this.
I would like to return to Senator McBean’s question. It is kind of nuanced, I know. If a good-faith clause comes into this when one person is hired with good faith and is there to calculatedly and clandestinely monitor the activity of the farm in order to discredit it, and where another is hired and discovers egregious practices by the farmer, those are two different scenarios, aren’t they? How would you calibrate either one?
Ms. Fernandez: Could you say again what the two are?
Senator Richards: If one comes onto the farm to clandestinely monitor the farmer’s activities in a way to discredit them or the farm, and another is hired in good faith and discovers egregious practices on that farm, there is a calibrated difference. Could you comment on that?
Ms. Fernandez: Yes, I understand. Thank you for clarifying.
Certainly, the Ontario statute makes that distinction: somebody who comes on with false pretenses, which would be your discrediting category of person, versus a person who is there and sees something and then becomes a whistle-blower because of what they see. That is relevant at that level.
For the federal level, the fact that you are an employee means that you are legally there. Whether you are there with a motive — I don’t know; you are vegan or kind of against this whole system, but you have a summer job and are there just doing it for money for university or something — I do not know if it matters so much what your own personally held beliefs are. It would be whether you are there legally or illegally. I am not sure that I am answering you.
Senator Richards: As I say, it is a nuanced problem.
My son is, by the way, a vegan. He’s a great, great guy, but I know that he would not be on a farm dealing with animals who are going to be slaughtered.
The Chair: Dr. Lazare, do you wish to respond? We have one minute.
Ms. Lazare: Again, it would be dependent on how the provisions around whistle-blowers and journalists are interpreted in Ontario. I am just looking at the Ontario act. It is hard to say because it is currently the subject of litigation, and the Superior Court decision is being appealed.
Yes, there is certainly a difference between a calculated falsehood in order to enter a farm and clandestinely take photographs versus someone who is legitimately hired and discovers egregious violence. The problem is that those people are typically not reporting. Everything we know about cruelty on industrial farms comes from undercover investigations by journalists or by people who enter a farm in order to clandestinely document. Thank you.
The Chair: Moving on to round two, we have five minutes.
We have four senators who have questions, so they have to be very short questions. We will stop at 10 a.m.
Senator Simons: My question is for Professor Fernandez. We heard testimony earlier this week that the CFIA does not have enforcement resources and that were this law to be triggered, it would have to be provincial trespass that was investigated first, and then this would come secondarily. Does it complicate things in terms of jurisdiction and colourability?
Ms. Fernandez: Excellent question. I know I need to keep it short. I would say I think it would, but I do not know for sure.
Senator Plett: There have been a number of claims here. People are claiming that people who trespass onto private property do not represent a security risk, and this is wrong. In fact, there have been two incidents in Canada: one in Quebec where a rotavirus appeared for the first time in 40 years and one where distemper was introduced onto a mink farm after trespassers invaded private property. Furthermore, last year there were two incidents in California, and the government has now said it appears that protesters on two farms spread avian influenza, and it resulted in the death of 250,000 birds.
Are you suggesting, professor, that we should wait for an avian influenza outbreak caused by illegal trespassers before we take any action? Is that what you are suggesting?
Ms. Lazare: I want to point out that in the case in Quebec, the Porgreg case in Saint-Hyacinthe, the trial judge actually rejected any evidence that the trespassers brought disease onto the farm.
Senator Plett: They spread it. Let’s be real. Thank you. My question was for Ms. Fernandez, not Professor Lazare.
Ms. Fernandez: I would say that I am not familiar with the details of those cases, but I would want to look at them very closely because it sounds to me like there could be some —
Senator Plett: Let’s have the bill and look at it. Thank you.
[Translation]
Senator Oudar: I will be brief, and even surgical. Ms. Lazare, you said that the bill would be acceptable if it applied to everyone. We then talked about Bill C-205 from 2021. I wasn’t there, but I looked at the bill and I see that, in the end, if I interpret your comments correctly, the bill would be acceptable if we removed the words between the two commas in the following: “No person shall, without lawful authority or excuse, …”. As a jurist, I found those words useful, and given that there are offences and convictions tied in with this, people need to be protected.
If I understand what you’re saying, if the suggested amendment to remove the words between the two commas were adopted, the bill would become acceptable, like Bill C-205 was.
Ms. Lazare: I believe it would, yes. I agree with Ms. Fernandez that farmers may not want something prohibited like that. But yes, it would correct certain constitutional infirmities.
[English]
Senator McBean: I have a similar question, possibly the same question, but I will give it to Professor Fernandez. Would the effect meet the purpose if in 9.1 we removed “without lawful authority or excuse” and entered “recklessly enter a building”? If it is targeting people who recklessly enter the building, then the employee who was at Canadian Tire was not recklessly entering the building. Would that clean it up? And then for Senator Plett, would that also make it a better bill?
Ms. Fernandez: Yes, it would probably improve it, but you will still have the problem that it is reckless — but are you saying that you would take out people who are illegally there? Oh, okay. Yes, you definitely need to take out people who are illegally there. “Reckless” could be good because then people who were coming but are being careful — it wouldn’t catch them.
But you still have the very high fines. I don’t know. I would ask somebody for some kind of comparison across other bills to see what might be a more reasonable range. I can’t provide that to you myself, but it seems off the charts.
The organization part — there is just no basis for that because they will not actually be carrying —
Yes, those are the things I would say we’d need to fix.
The Chair: Thank you, witnesses, very much for your participation today. Your insights and testimonies are very much appreciated. I also thank committee members around the table. Your active participation and thoughtful questions are always appreciated.
I additionally want to thank the folks who support us behind the scenes: interpreters, the Debates team transcribers, the committee room attendant, the Multimedia Services technicians, the broadcasting team off-site, the Recording Centre, the Information Services Directorate and our page.
Is it agreed, senators, that we end the public portion of the meeting and proceed in camera — I don’t anticipate it would be for more than 15 minutes; I would expect not — to discuss future business? Carried.
(The committee continued in camera.)