THE STANDING SENATE COMMITTEE ON AGRICULTURE AND FORESTRY
EVIDENCE
OTTAWA, Thursday, October 24, 2024
The Standing Senate Committee on Agriculture and Forestry met this day at 9 a.m. [ET] to examine Bill C-275, An Act to amend the Health of Animals Act (biosecurity on farms).
Senator Robert Black (Chair) in the chair.
[English]
The Chair: Good morning, everyone. It’s good to see everyone here. Before we begin, I would ask you to check out the instructions for dealing with the earpieces. This is so we can protect all our folks who support us behind the scenes.
I would like to begin by welcoming members of the committee as well as those watching this meeting. My name is Rob Black, senator from Ontario, and I chair this meeting. I want to ask senators around the table to introduce themselves.
Senator Simons: Hello, I’m Senator Paula Simons. I come from Alberta, Treaty 6 territory.
Senator MacDonald: Michael MacDonald, Cape Breton, Nova Scotia.
[Translation]
Senator Oudar: Manuelle Oudar from Quebec.
[English]
Senator Robinson: Good morning. Mary Robinson from Prince Edward Island.
Senator McBean: Senator McBean, Ontario.
Senator Bernard: Wanda Thomas Bernard, senator from Nova Scotia, Mi’kmaw territory.
[Translation]
Senator Petitclerc: Chantal Petitclerc from Quebec.
Senator Dalphond: Pierre Dalphond from the De Lorimier division in Quebec.
[English]
Senator Varone: Toni Varone, Ontario.
Senator Pate: Kim Pate. I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
Senator Plett: I’m Don Plett. I’m from Landmark, Manitoba.
Senator Richards: Dave Richards from New Brunswick.
The Chair: Today, the committee is meeting for a clause-by-clause consideration of Bill C-275, An Act to amend the Health of Animals Act (biosecurity on farms).
We have government officials from the Canada Food Inspection Agency, Justice Canada and Agriculture and Agri-Food Canada in the room today. If senators have questions to ask the officials, we will invite them to the table for that discussion.
Before we begin, I would like to remind senators of a number of points.
If at any point, a senator is not clear where we are in the process, please ask for clarification. I want to ensure that at all times we have the same understanding of where we are in the process.
In terms of the mechanics of the process, when more than one amendment is proposed to be moved in a clause, amendments should be proposed in the order of the lines of a clause.
If a senator is opposed to an entire clause, the proper process is not to move a motion to delete the entire clause, but rather to vote against the clause as standing as part of the bill.
Some amendments that are moved may have consequential effects on other parts of the bill. It is therefore useful to this process if a senator moving an amendment identifies to the committee other clauses in the bill where the amendment could have an effect. Otherwise, it would be very difficult for members of the committee to remain consistent in their decision making.
Because no notice is required to move amendments, there can, of course, have been no preliminary analysis of the amendments to establish which ones may be of consequence to others and which may be contradictory.
If committee members ever have any questions about the process or about the proprietary of anything occurring, they can raise a point of order. As chair, I will listen to the argument, decide when there has been sufficient discussion of the matter and make a ruling. We may have to suspend to make that ruling.
The committee is the ultimate master of its business within the bounds established by the Senate, and a ruling can be appealed to the full committee by asking whether the ruling shall be sustained.
I wish to remind honourable senators that if there is ever any uncertainty as to the results of a voice vote or a show of hands, the most effective route is to request a roll call vote, which, obviously, provides unambiguous results.
Finally, senators are aware that any tied vote negates the motion in question. Any there any questions on the above? If not, I’ll proceed. Thank you.
Is it agreed, colleagues, that the committee proceed to clause-by-clause consideration of Bill C-275, An Act to amend the Health of Animals Act (biosecurity on farms)?
Hon. Senators: Agreed.
The Chair: Agreed. Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed. Shall clause 1 carry?
An Hon. Senator: No.
Senator Dalphond: I think you all received a copy of the amendment I’m proposing. I move the following amendment:
That Bill C-275 be amended in clause 1, on page 1, by replacing line 6 with the following:
“9.1 No person shall”.
I’ll read the first line that I propose to amend. It reads as follows:
No person shall, without lawful authority or excuse, enter a building or other enclosed place in which animals are kept . . . .
I’ll dispense with the rest of the provision.
The amendment will delete the words “. . . without lawful authority or excuse . . . .” This is the amendment as it is.
Why am I proposing this? There are two reasons: The first is that the amendment responds to two concerns that we heard in committee. One was about the constitutionality or legality of the bill as perhaps a colourable attempt to do something which is not what is being described, and the second concern is about genuine biosecurity risk.
The first concern was that compliance may be exceeding federal jurisdiction. The concern is that this bill might be more about trespass than biosecurity, and therefore will be more about something relevant to provincial jurisdictions and a colourable attempt to pass a biosecurity bill as criminal law.
The second concern — as we heard — is that we haven’t heard confirmed cases of the spread of disease on farms from trespassers. We also learned from 20 infectious disease experts in their brief that the risk of spreading disease from farm workers is orders of magnitude greater than from trespassers. The amendment will make sure that everybody who is on a farm and enters a building or an enclosed place will have to conduct themselves with the same behaviour and that the owners of the farm will have to make sure that everybody is complying with the protocols and practices on the farm.
The Chair: It is moved by the Honourable Senator Dalphond that Bill C-275 be amended at clause 1, page 1, line 6. We’ll move to debate, starting with Senator Plett.
Senator Plett: I see shades of Bill C-234 happening here again. We, in our ivory towers, think we know better than what millions and millions of farmers know and, indeed, what the House of Commons knows.
Colleagues, this amendment is both unnecessary and, in fact, very harmful. For starters, we are amending a private member’s bill which has already been passed by the House of Commons by a huge margin. In the House of Commons, 133 Liberals voted in favour of this bill — 133 members of the governing party voted for this bill and 112 members of the official opposition voted for the bill. Thirty of the third-largest party voted for the bill. Three independents voted for the bill. Two members of the Green and 21 members of the NDP voted against it. This was passed by all people who are concerned about farming and has been opposed by all people who are animal activists.
That means, colleagues, that amending a bill at this stage provides the few opponents of this bill with a lever to delay it and see it die on the Order Paper. We all know the volatility right now over in the other place and how close we are to an election, and the impact of even putting any amendment, minor as it would be, in the bill would see it die on the Order Paper. And then we want something like this of this magnitude.
Again, if you need an example of how this works, just look at what happened to Bill C-234. The proponent of this amendment did the same thing with Bill C-234, and it’s now languishing over in the other place, and farmers are still being penalized today because of what Senator Dalphond and company did to farmers across the country on Bill C-234.
Second, it is imperative to recognize that it is the producer who bears all of the responsibility and all of the risk for biosecurity at the farm level. Not the trespasser. The producer bears the responsibility. Let me quote right from the Canadian Food Inspection Agency, or CFIA:
Biosecurity may be considered as a whole-farm approach to animal health management. The cooperation of visitors and agri-service personnel is an important part of a plan, but, ultimately, the owner or manager must be willing to do what is necessary to ensure that established protocols are followed by family members, employees, and visitors.
Colleagues, outbreaks of disease can have a devastating impact — and we’ve heard it here time and again — a devastating impact on producers’ finances, emotions and mental health, and producers take their role seriously. Even existing biosecurity protocols are significant, and producers take them seriously. Yet, at this point, producers still do not have the tools necessary to ensure compliance with these protocols. They can enforce the protocols with their employees, family members and visitors, but they are helpless in one key area, and one area only: individuals who come onto the farm without authorization. People who are there with authorization, yes, they may make a mistake now and again. Something happens. But they are there with authorization. They have an obligation to try to do their best to meet the protocols.
Individuals who come to the farm without authorization, colleagues, are trespassers. It’s that simple. They are trespassers. This amendment makes zero sense because farmers can already enforce biosecurity protocols with their employees, family members and visitors. The only biosecurity threat that they have no control over comes from the only group that opposes the legislation. There’s one group that opposes the legislation, and they are the problem: animal rights activists who decide to trespass. This is what Senator Dalphond is proposing, to somehow put them on the same page as the producer that is on there because they have a job to do.
In my view, this amendment is nothing more than a front for a push again by animal rights groups to derail this bill. That’s what this is intended to do. They are the ones who propose this amendment because they recognize it will very likely kill this bill, and that, colleagues, is the real goal here: to kill this bill, not to improve it.
Third, this amendment should be defeated because it was proposed at the Agriculture Committee in the House of Commons, and it failed to pass. It was even opposed by the government and the parliamentary secretary. The government and the Parliamentary Secretary to the Minister of Agriculture, MP Francis Drouin, had the following to say about this at committee, this very amendment:
I just have a comment on the overall amendment from my perspective. While we support the objective of what this would do, we don’t think that potentially penalizing employees or temporary foreign workers on farms is the right way to go. I will not be supporting this amendment the way it is written . . . because. . . . You know, during a pandemic, we didn’t go and penalize nurses and doctors and say, “You’re subject to a fine of up to x amount if you don’t respect biosecurity protocols.” This amendment brings a new constituency into the bill. While I respect . . . that we must do everything we can to promote biosecurity, I don’t think that touching the employer-employee relationship is the way to go with this particular amendment, so I will not be supporting . . . .
Again, that is the Parliamentary Secretary to the Minister of Agriculture.
The narrow scope of this bill was no accident, colleagues. It was part of the design. The Health of Animals Act already prevents the entry of unauthorized persons to an area where a disease or toxic substance already exists that is capable of affecting animals.
Bill C-275 is effectively a proactive measure of this section which also prevents the entry of unauthorized persons in order to prevent the introduction of diseases or toxic substances. This, colleagues, is just common sense.
In closing, I would note that this bill is supported unamended — unamended — by agricultural organizations across the province, across the country, by the government, by the current and former ministers of agriculture — both current and former ministers of agriculture — by 278 elected members of Parliament, across the entire House of Commons. They expressed their support for it, and this includes the Prime Minister and his entire cabinet. They supported this bill unamended.
This is no small thing, colleagues. And for the Agriculture Committee here in the Senate to oppose the clear will of the House of Commons — this is not just amending something that they may have made a mistake on. This is saying to the House of Commons, “We know better than you,” because they defeated this amendment over there. So I can understand where we would want to amend something and send it over there and have them look at it. But they’ve seen it. They rejected it. So is there anybody here that thinks they wouldn’t reject it again if they had time to deal with it? But they won’t.
So what Senator Dalphond wants to do is kill this bill, and this is the perfect way to do it because they won’t have time to deal with it over there. So this bill will die on the Order Paper if it gets sent over there amended.
To oppose the clear will of the House of Commons and the agriculture community at large would indeed be a dark day for the Senate of Canada. This is becoming known as an Agriculture Committee that has no interest in protecting the interests of agriculture. That was clearly evident with how this committee completely ignored the Agriculture and Agri-Food Committee on Bill C-234 and is now threatening to do the same thing with this bill.
Colleagues, this is shameful. This is shameful for Senator Dalphond to do this. I hope my colleagues will see through this. This is not partisan. I hope we vote in a non-partisan way on this. Vote to help our agricultural community across the country, help them where they need help. I will be voting against this amendment, and I encourage all honourable members who care about agriculture, who care about our farmers, to do the same. Thank you, chair.
The Chair: Thank you, Senator Plett.
Senator Simons: Thank you very much, Senator Dalphond and Senator Plett, for your thoughtful words about this.
As we listened to the testimony, both in the spring and in the fall, we all heard clearly that there is a significant concern among the agriculture community about trespassers. We did hear about specific and disturbing incidents where trespassers came onto personal property and stole, effectively — I mean by releasing animals. And because farmers tend to live where they work, that kind of trespass is particularly emotionally traumatizing because it’s not just coming into your factory or your store; it’s coming into the place where you reside.
I was distressed to hear how ineffectual provincial trespass laws seem to be. But we face a quandary, which is that those laws are within provincial jurisdiction. We heard clearly from constitutional experts that one of the challenges with this bill is that it usurps the traditional role of the province in regulating this area and attempts to do by the backdoor what can’t be done through the front.
I would like to say, first of all, and on the record, that I do not condone animal activists, no matter how zealous their motivation, who come onto private property and destroy and devalue private property, who upset families in their homes and who have a hypothetical risk of bringing disease onto the farm. However, having listened to the witnesses, I do not believe we have a clear path from a constitutional perspective.
The other thing I heard — and I think many of us heard around the table — was disturbing testimony about how vulnerable our farmers are to biosecurity risk, especially in an era of concern about zoonotic viruses that jump the species barrier from animals to people. This isn’t just a question of preserving farms and agricultural livelihoods; it’s a question of preserving human health. If the next pandemic comes from an avian influenza variant or some other zoonotic virus nurtured on our farms and transferred that way, it will be devastating not just to our agricultural economy as BSE was in Alberta, but potentially devastating to human health.
We need to take biosecurity immensely seriously, and this is why Senator Dalphond’s amendment makes sense: because statistically, the risk to our animal health and human health isn’t going to be from the statistical outlier. There are very few incidents in Canadian history of trespassers coming onto farms, disturbing as those incidents have been. There are no confirmed reports of any viruses being spread by trespassers. The real threat is not from the outlier. It’s from the every day and the mundane because that’s where we tend to become used to things.
The language that’s in the original bill, which is what Senator Marshall talked about repeatedly, that “. . . may reasonably be expected to result, from the existence of a disease or toxic substance . . .” indemnifies a temporary foreign worker who does something accidentally. This is designed to capture people who behave in ways that are reckless, which could reasonably be expected to result in the exposure of the animals to a disease or toxic substance. You are including trespassers — they are not excluded from this — but you are also including people who may act, who are there lawfully who may be acting with malice and people who may be acting recklessly.
Unlike Senator Plett, I do not think that this exempts trespassers. They are still encompassed, but now you are also encompassing other people who may, in fact, pose a greater risk.
Finally, we come to the issue of what is the role of the Senate and Senate committees in dealing with private member’s bills. Whether or not you believe that the Salisbury convention applies to the Senate of Canada — and there are those constitutional scholars who would argue that it does not because we are a federation in the way that Great Britain is not — the convention is that we do not defeat legislation that was part of a mandate on which a government ran and is government legislation, but there is no such convention that governs our treatment of private member’s bills.
Currently, before the Senate foreign affairs committee, we have Bill C-282. Many on the House side, including many in the government, have argued that the Senate has a bounded duty to pass Bill C-282 without amendment and by an arbitrary deadline because it received support in the House. Our colleagues on the Foreign Affairs Committee are taking their time to do a proper study because they understand that we are not bound by convention or political expediency to pass private member’s bills without properly considering whether the House did their job in studying them. We are the house of sober second thought for a reason.
Senator Plett is correct: If we amend this bill, given current political climate, there is a good chance it may not come back out of the House. However, that is not our fault or our problem. If the Conservatives wish to ensure that this bill is passed, they don’t need to bring down the government. There are choices to be made here. If the Bloc want to pass Bill C-282, maybe the right thing to do is not to hold it hostage.
I do not think that the antics of what is going on in the other place need tie our hands. We are sovereign in this committee. It is our job, our responsibility and our right to discuss bills without consideration of who’s up and who’s down in the other place. The fact that many Liberals supported this bill is not persuasive to me. I am — for the record, Senator Plett — not a Liberal. I don’t take direction from the Liberal party or the Liberal caucus, nor do I take direction from the Bloc, nor do I take direction from the NDP, the Conservatives or the Greens.
I’m speaking now as an Albertan who cares about protecting provincial jurisdiction and provincial rights and who is zealous in looking out for federal trespass into provincial jurisdiction, which this bill, as drafted without the amendment, does. As Deputy Chair of the Agriculture Committee, I take extremely seriously the protection of biosecurity on our farms.
That is why — without consideration of partisan interests and who’s doing what to whom in the other place — I will support this amendment from Senator Dalphond, which I think is reasoned, measured and actually makes the bill stronger in doing what the bill intends to do.
Senator MacDonald: I confess, for the record, that this is the first time I’ve ever been to the Agriculture Committee, and I wasn’t involved in any of this. One thing I often hear — and I’ve heard it in the Senate before — is that when people lose arguments on something, they revert to the constitutional question: Is it or is it not constitutional? We don’t adjudicate here; we’re legislators. I hear this all the time: “It’s not constitutional.” How do we know? We don’t know whether or not it’s constitutional until it goes to court.
These arguments are so esoteric; it’s inappropriate to make a constitutional assessment of this. We don’t have the competence, quite frankly.
These arguments — to me — are quite unacceptable. They’re just not convincing. We know what this is: It is just a way of knocking the bill out.
Again, we are legislators. We are not adjudicators. This is not a court of law. This was passed by the House. It seems to be a relatively reasonable bill. The responsible thing to do is to pass this bill. If it goes to the courts, let the courts decide the constitutionality of it.
[Translation]
Senator Oudar: First of all, I’d like to encourage us to work in a harmonious atmosphere and not to impugn people’s intentions. I’m not used to working in such a context. I’m new to the committee and to the Senate. I believe in social dialogue; that is what we advocate here in Quebec.
I listened to all the witnesses. In short, we see that the agency doesn’t carry out inspections and that there are no data or follow-up on security incidents. We can’t even say whether there have been intrusions in the past that have caused security incidents or not. So I think the agency could do more.
Since nature abhors a vacuum, the agency even came to tell us that it’s the producers who are best placed to develop standards. I retained all that. I thought I would vote in favour of this bill. It’s excellent when it comes to biosecurity.
I’d like to talk about protecting workers. That has been my role in recent years. I think the words “without lawful authority or excuse” have their place, because they protect workers.
I am sensitive to the fact that they are accused, often wrongly, of causing contagion. This was particularly the case during the COVID years and in the health care system, when I was chair of the Commission des normes, de l’équité, de la santé et de la sécurité du travail, or CNESST, in Quebec.
Some people work on farms under very difficult conditions. They are often temporary foreign workers. I’m not even sure that people like us would put up with their working conditions. It’s extremely difficult.
I’ll say it again. I’m sensitive to the fact that these workers are often wrongly accused of causing contagion. In my opinion, the phrase between the two commas still has its place. That’s why, in the name of protecting these workers, I’m not in favour of the amendment.
[English]
Senator Petitclerc: I want to speak very briefly in support of this amendment. I also want to say that I’ve been on this committee ever since I was appointed, so that’s almost nine years, and I really want to commend this committee because the work that we do when we do the studies and the bill is always total, it’s responsible. We take it seriously. We take the time when the time needs to be taken, and we’re all being very serious and responsible in that work. I wanted to put that on the record.
The very simple reason I’m in support of this amendment is that if this bill is meant to be a focus on biosecurity, then there is no harm — there is no reason that it shouldn’t apply to any person that will enter a space. To me, it’s that simple.
I am sensitive, Senator Oudar, to what you’ve been saying about the workers, but I don’t think this is how we address what you were talking about. I think if the bill is meant to focus on biosecurity, it has to apply to all. That’s it.
Senator Plett: Well, I want to reference a couple of the comments that were made. Number one, of course, nobody has accused anybody of being a Liberal, a Conservative or anything else here. I don’t know why that even has to play into this. If you feel guilty about what you’re doing, well, then that’s fine. I certainly didn’t accuse you, Senator Simons, of being a Liberal.
I would be embarrassed too to admit that, that I was a Liberal. I would also to want say, “No, I’m not a Liberal.” You’re definitely in good company there. I think, right now, everybody in the country is saying that.
You referenced Bill C-282 and made a comparison. I have no issue. You’re absolutely right. The committee is doing a thorough study on Bill C-282, as they should. That’s not any argument. This committee did a thorough study on this bill, as they should. No argument there. It’s what we’re doing with it now. The proof is still out as to what the committee on Bill C-282 is going to do. We don’t know. There is a fair bit of difference of opinion there from what I understand.
It is a bill that now the government has gotten behind. We’ll find out what happens there. Similar to Bill C-234. Bill C-234 was getting a pretty good ride here until, all of a sudden, Senator Dalphond and company started getting calls from the government, and they started doing whatever they could to block Bill C-234, and they did a good job of killing Bill C-234. That’s now going to have to wait until we have a common-sense Conservative government, and they will take care of the farmers by axing the tax. We know where that is.
But, colleagues, the constitutionality of this was discussed in the House of Commons. They satisfied themselves with the constitutionality of this bill. We seem to think that we are somehow that much more intelligent over here, that they are just a bunch of idiots over there that didn’t consider this. They considered the constitutionality of this there. They had testimony there. They believe it’s constitutional. But as Senator MacDonald pointed out — I’ve been a member of this committee as an ex officio member only because I’m now the leader, but all of my years, from the day I was appointed, I was a member of the Agriculture Committee. Without question, the Agriculture Committee has been a great committee. It was my favourite committee that I ever sat on. They have done good studies. They actually used to pass good laws too when they were sent over there.
Now, all of a sudden, we have people here in our ivory tower thinking we know better than what the farming community does. Bill S-15 comes to mind, where there was an amendment brought forward on Bill S-15 that was out of scope, clearly out of scope. If I recall, Senator Simons, I think you voted the right way on that. I’m not entirely sure.
Senator Simons: Voted with you.
Senator Plett: But — no, I voted the right way as well. That’s ironic that you and I voted the same way on something, but we did. Stranger things have happened.
But on Bill S-15, legal scholars, judges admitted it was out of scope but voted in favour of allowing it to happen. The Speaker now had to rule that out of scope. I would suggest that’s a little embarrassing for, in this case, the Legal Committee where the Speaker had to rule something out of scope that had been said was out of scope at the committee meeting, that witnesses said was out of scope and yet our committee just said, “Well, we don’t really care about reasoning and about witnesses. We want to bring this amendment in, so let’s do it.” Then the Speaker has to rule something out of scope.
So now, all of a sudden, we are the expert on constitutionality. I don’t think there is a constitutional expert, quite frankly, in this room today. I have no doubt that the constitutionality of this bill and many others will be challenged, as they always are. The years I spent on the Legal Committee, I don’t think we ever passed a law that we didn’t have a certain lawyer — Senator MacDonald knows him. I forget the name of it, and it’s irrelevant — came to every Legal Committee and said, “This is unconstitutional, and we are going to challenge it.” Happened every time. That should not be our concern. We should do the right thing here. There will be constitutional experts that will be challenging this, and if it’s not constitutional, it’s not going to happen.
But, colleagues, again, clearly, we cannot put temporary foreign workers or farm workers into the same category as we put those that are illegally coming onto property. We should have a concern about that. And, clearly, from what I’m hearing so far from the arguments is, “Well, yeah, you’re coming on illegally, but it’s not that bad, so just continue to do that. You’re really no worse than a farmer who has forgotten to wash his boots that day.”
Colleagues, we have an obligation to pass — and, yes, this is not a government bill. I agree. But 133 members of the government, including the Prime Minister and the entire cabinet, voted for it. That’s pretty close to being a government bill, I would suggest.
Again, colleagues, I implore you to do the right thing. Vote against this amendment, pass this bill unamended so we can get it to the chamber and we can debate it thoroughly in the chamber again. I’m sure Senator Dalphond, if he loses it here, will again present amendments there as he did with Bill C-234. He will again try to delay it over there as he did with Bill C-234. I have no question about it. He mounted a good fight on that, and he will do the same thing here. Eventually, maybe, we get it across the finish line, and maybe he will win the day that we will not get this bill passed, and again have to wait for a common-sense Conservative government to bring it forward sometime in the next year.
Thank you.
Senator Dalphond: There is so much to say, but I will try to restrain myself. I will start by saying that I never delayed a bill, but I know some people — including some that are sitting in front of me — who have been using these tactics for many years to delay bills. In the last Parliament in 2019, 15 private members’ bills coming from the House of Commons died on the Order Paper, including the bill of the former leader of the Conservative party, the Honourable Rona Ambrose’s bill on judicial education training.
Also Mr. Saganash’s bill on UNDRIP principles was also delayed until the very last thing to make sure it would die on the Order Paper. I never did that. On Bill C-234, I spoke fast. I didn’t delay things. I was open here at the committee. I was open on the floor. I hope that Senator Plett — after all he has said — will make sure that as critics of the horse bill, which is waiting to arrive at this committee, will speak to it next week and make sure that we send it to the committee because it’s time to go. It has been there for a long time, and we are waiting for him as critic to make his speech.
That being said, I will now come to this bill because I think that’s what we are about here. It’s about this bill. Why am I proposing to delete these words? Because I’m opposed to farmers? I don’t understand? I am high in the ivory tower? Sorry, let me say where I’m coming from. I’m coming from the farm side. I was born and raised on a farm. My father lost thousands of chickens because of a sickness that contaminated not only one, but many buildings.
So, I know what biosecurity is. I know it’s an important risk, and I know who pays at the end of the day. It was not the government. It was my father.
That being said, if we are speaking about biosecurity, let’s make the bill sound like a biosecurity bill and not like a bill attempting to silence and prevent activists from doing things because that’s what Senator Plett is saying. That’s what the sponsor of the bill said openly before us the first time he came. He said it in the House of Commons. Let’s be clear: That’s the purpose of the bill. It’s based on that that we have scholars who came from different universities, all saying that it sounds and looks like a colourable attempt to silence people who are trespassing and try to use the federal power to make trespass, which is already covered by provincial legislation, to prevent these people from expressing their views. I’m not saying that trespass is good. There is legislation about that.
But as it was clearly indicated in evidence here, there was no case of contamination associated with trespassers. Some people said here, “Look at the Saint-Hyacinthe case.” I have the pictures in my book here. I can show them to you. The trespassers, yes, they were trespassing. But they wore full gear with plastic from their feet to the tops of their heads with masks. They were not contaminating. They were following a protocol that the farmer was not even following.
After the incident, Agriculture Quebec was called on to investigate because the farmer said that they had contaminated his cows, pigs and everything else. They came and concluded that the poor health conditions on the farm were the reason for the contamination. There was a trial, and the judge concluded that there was not a single trace of evidence that the trespassers were responsible for the contamination.
Let’s now return to the reality of that bill: In Section 9.1 it states, “No person shall, without lawful authority or excuse, enter a building . . . .” A similar provincial legislation in Ontario had these words. It was challenged before the Ontario Superior Court of Justice. It was struck down. That is the reality. That’s what some other witnesses told us. I did not invent that. I am just saying that these words are subject to controversy.
I am proposing to remove these words because they open the gate for a legal debate, and they weaken the legislation. If we are serious about speaking about biosecurity, let’s make the law as solid as we can to make sure that if it is challenged, it will go through and will not be quashed or declared unconstitutional. Let’s also try to achieve what we are trying to achieve, to make sure that everybody who is at risk of contaminating animals is following the proper protocols, whether they are employees, temporary employees or foreign employees. Nobody should be a source of risk, but should understand the risk, and the farmers should make sure that they are not the source of contamination. When one farm is contaminated, Senator Plett said, “The farmer will bear the risk.” This is not true. Not only will he bear the risk, but the neighbour will also bear the risk, and another person will go on his farm and bring it to another farm. The risk of spreading is always a real thing.
I’m glad to hear that we have officials this morning, including from the Justice Department. Maybe we can ask one of the officials to come to the table and tell us if — based on what we heard — there is a risk here, or if it’s a colourble attempt or something of that nature.
I’m going to remind everyone by reading from the excerpt. I asked Ms. Ireland from the inspection agency, and I agree with Senator Oudar that the inspection agency has a kind of discrete role and they are not enforcing federal guidelines because there are no federal guidelines. It’s left to the farms and the producers to decide and maybe that’s something that should be looked at. I have observations about that. I’m going to read the transcript:
Senator Dalphond: Ms. Ireland, before the House of Commons committee you said the current wording proposed in this bill poses legal risk. You refer to the Criminal Code, including prohibitions relating to trespassing and mischief and breaking and entering. You said:
There is a risk the prohibition may not be a valid exercise of federal agricultural power, which is understood to be limited to agricultural operations that are inside the farm gate.
You said that. Were you relying on some legal opinions to say that, because I understand you’re not a lawyer?
Ms. Ireland: Certainly, comments I make at committee are well informed, not only by science but by technical requirements around bills. Yes, I did say that. That would be accurate. My words at that time were accurate. Thank you.
Perhaps we could ask Mr. Melaschenko, and I apologize for putting you in the hot seat.
The Chair: Mr. Melaschenko, please answer the question.
Joseph Melaschenko, Senior Counsel, Agriculture and Food Inspection Legal Services, Department of Justice Canada: Thank you for the question. While I want to be as helpful as possible in my appearance today, there are constraints on what I can say to this committee.
As a government lawyer, my role is to provide legal advice to the government, not to this committee. I understand members have some access to legal advice when amendments to the bill are drafted. As has been accurately pointed out, it’s an issue that has been discussed at length both in the House of Commons and here. I also cannot discuss any advice that has been given by the Department of Justice to the government on this file because it is subject to solicitor-client privilege and could prejudice future positions we wish to take on this bill. For those reasons, I have to respectfully decline to answer this question.
The Chair: Thank you, Mr. Melaschenko.
Senator Pate: Thank you very much to all of our colleagues for their thoughtful interventions. I’m not a regular member of this committee, but the evidence we heard about the manner in which biosecurity risks are entering the country, in addition to the issue of compliance being voluntary, the fact that there are so many other issues around whether it’s wild birds or other ways that biosecurity hazards can be introduced, I think is of concern for more than just me. Many people whom I have spoken to, who were observing these proceedings, expressed concern. I would like to humbly suggest a study on how biosecurity issues could be most thoroughly prevented within not just farms, but for the country as a whole.
That would be a useful future study, including the kinds of issues that Senator Oudar raised, which is the vulnerability of particular employees if, in fact, we are focusing on folks who may be underpaid, who may be not well resourced themselves and may not be well trained in some cases — not all, but in some cases. So that was merely the intervention I wanted to make. A lot of the discussion is circling around what this bill does and doesn’t do when, in fact, there are some very real issues we have heard about that I — as the critic of this bill, I was extremely concerned. I thought it was a much more straightforward situation before hearing much of the evidence. I really would encourage the committee to do the kind of thorough study you have done on so many other issues. Thank you.
Senator McBean: Thank you. I just wanted to go in line with what Senator Petitclerc had been saying and just saying that — we had heard that trespassing is a provincial issue, but the farmers wanted more protection, and so they came in and were putting this piece of legislation forward asking for stronger biosecurity protection.
Then we hear on the — opposing this amendment that this risks to penalize, threaten or make vulnerable the temporary foreign workers and the staff. I recall asking Mr. Bollert, the mink farmer, on October 3 what happens or how they deal with staff and people who are, I suppose, lawfully present on their farm who don’t follow biosecurity measures. His response was that it just doesn’t happen.
So I see how accepting the amendment, “no person shall,” still continues to catch the trespassers who are coming on and bringing biosecurity hazards and breaches into the environment. If the people who are lawfully present and the workers and the staff are coming on, they are following the biosecurity. That is their job, as Mr. Bollert said. It’s their job, it’s what they do, it’s their livelihood. I see this catches all the people who are threatening the farmers’ biosecurity safety. I kind of think this covers and will continue to catch exactly who the sponsor was hoping we would catch.
The Chair: Seeing no further — thank you.
Senator Plett: I would like to ask the justice official a question as well if I could, please.
The Chair: Please.
Senator Plett: We have clearly seen that to Senator Dalphond, this is tit-for-tat. If I would move the horse bill forward, I’m sure he would move his amendment off the table. He was quite clear with that, that this is payback time. That’s a little unfortunate.
My question simply, sir, is this: Did you — I’m not asking you what you advised or what you told the government — but would you have advised the government on the constitutionality of this bill?
Mr. Melaschenko: Yes, the Department of Justice looks at constitutional issues in support of government witnesses that appear at this committee.
Senator Plett: Thank you very much.
The Chair: Seeing no further debate — sorry. Senator Richards.
Senator Richards: I’m going to say that Senator Dalphond’s amendment might come under another bill altogether and that it really supersedes the importance of this bill. I don’t know how you would work this bill if this amendment was to come about into any kind of fruition because how would the health department in every province be able to do this? How many people and how many farms would be shut down because of this?
I’m just not sure how it would all work. Here we have people who aren’t regulated by any farming authority to obey any protocols at all coming onto farms. From what I know, in my limited experience, which is at least some, many of them have no real interest in the animals. They want to shut down the food industry, and they want to shut down the farm. That’s a terrible penalty for the farmer to have to pay. So I can’t support your amendment.
[Translation]
Senator Oudar: I just want to add a clarification. Just because a stakeholder wears white coveralls or boots doesn’t mean that protocols have been followed. Respecting protocols is complicated. There’s no room for magical thinking here. A protocol requires a number of interventions; we saw that with COVID. I could go on at length; there are very specific steps to follow.
Just because someone puts on a certain category of clothing and boots of a certain colour doesn’t mean there’s no risk of contamination. People may have walked somewhere beforehand, and the coveralls may have touched something else. This can even be a source of contamination. I’ve often heard here that we don’t have any problems, because people are trespassing, wearing coveralls and boots. That’s not true, it’s not based on science, and I think we have to stop pretending that by doing that, we’re protecting the animals. Again, employees are trained to do this. I want to emphasize that we need to protect them, that the phrase in the bill is there to protect them, and that we need to stop ostracizing employees, thinking that they’re the ones contaminating livestock and farms.
[English]
The Chair: Seeing no further debate coming forward, colleagues, I ask for a recorded vote, and so I’ll first ask the clerk to name all of the senators present who are entitled to vote at this time.
Mr. St. Martin: The Honourable Senator Black, the Honourable Senator Bernard, the Honourable Senator Dalphond, the Honourable Senator MacDonald, the Honourable Senator McBean, the Honourable Senator Oudar, the Honourable Senator Pate, the Honourable Senator Petitclerc, the Honourable Senator Plett, the Honourable Senator Richards, the Honourable Senator Robinson, the Honourable Senator Simons and the Honourable Senator Varone.
The Chair: Thank you, clerk. If any member present does not wish to vote, you may withdraw from the table now. The clerk will now call the members’ names beginning with the chair followed by the remaining members’ names in alphabetical order. Members should verbally indicate how they wish to vote in favour of this — vote for this amendment by saying “yea,” “nay” or “abstain.” The clerk will then announce the results of the vote. The chair will then declare whether the motion is carried or defeated.
Mr. St. Martin: The Honourable Senator Black?
Senator Black: No.
Mr. St. Martin: The Honourable Senator Bernard?
Senator Bernard: Yea.
Mr. St. Martin: The Honourable Senator Dalphond?
Senator Dalphond: Yes.
Mr. St. Martin: The Honourable Senator MacDonald?
Senator MacDonald: No.
Mr. St. Martin: The Honourable Senator McBean?
Senator McBean: Yea.
Mr. St. Martin: The Honourable Senator Oudar?
Senator Oudar: No.
Mr. St. Martin: The Honourable Senator Pate?
Senator Pate: Yes.
Mr. St. Martin: The Honourable Senator Petitclerc?
Senator Petitclerc: Yes.
Mr. St. Martin: The Honourable Senator Plett?
Senator Plett: No.
Mr. St. Martin: The Honourable Senator Richards?
Senator Richards: No.
Mr. St. Martin: The Honourable Senator Robinson?
Senator Robinson: No.
Mr. St. Martin: The Honourable Senator Simons?
Senator Simons: Yes.
Mr. St. Martin: The Honourable Senator Varone?
Senator Varone: Yea.
The Chair: The motion is carried. So the motion in amendment —
Mr. St. Martin: I’ll read. Yes, 7. No, 6.
The Chair: The amendment is carried.
Mr. St. Martin: Sorry. Yes, 8. I didn’t count Chair Black.
The Chair: You counted me here.
Mr. St. Martin: Yes, you’re right. Sorry.
The Chair: Please say the number again.
Mr. St. Martin: Yes, seven; no, six.
The Chair: The motion in amendment is carried.
Shall clause 1, as amended carry, colleagues?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Thank you. Shall clause 1 carry? No, that’s defeated.
Shall clause 2 carry, colleagues?
Hon. Senators: Agreed.
The Chair: Carried. Shall the title carry, colleagues?
Hon. Senators: Agreed.
The Chair: Shall the bill, as amended, carry?
Hon. Senators: Agreed.
The Chair: Colleagues, is it agreed that the law clerk and parliamentary counsel be authorized to make necessary technical, grammatical or other required non-substantive changes as a result of the amendments adopted by the committee in both official languages including updating cross-references and renumbering the provisions? Is it agreed?
Hon. Senators: Agreed.
The Chair: Does the committee wish to consider appending observations to the report?
Senator Dalphond: I have one.
The Chair: Yes. So the committee will now proceed in camera to discuss the text of the observations. Is it agreed that we suspend briefly to proceed in camera? This is the convention that we follow. Are folks saying no?
Some Hon. Senators: No.
The Chair: Then we’ll proceed in public.
Senator Dalphond: The observation is very short.
The committee recognizes the importance of biosecurity on farms and observes that, according to evidence from a representative of the Canadian Food Inspection Agency, compliance with biosecurity protocols is currently voluntary. The committee observes that the Governor-in-Council has the authority to make obligatory regulations to protect biosecurity on farms under section 64 of the Health of Animals Act. The committee urges the Governor-in-Council to develop and implement effective regulations on this subject.
Essentially, the observation is to address the issue that was made clear to us: there is no kind of regulatory framework that will ensure that there is some well-known — and applicable, with the force of law — biosecurity guidelines and regulations. I think the risk of biosecurity is so high that maybe it’s time for the federal government to look at ways to address that and not leave it to farmers or organizations of producers or farmers to come up with what they think are the best practices. It’s an invitation to the government to exercise its authority to look at the issue and to maybe adopt minimal standards to protect every farmer across the country from the very high risk of biosecurity.
Senator Plett: Senator Dalphond was fairly brief. I won’t be quite as brief, and I don’t hold out a great deal of hope for success here today. Nevertheless, I would like to put some comments on the record, chair. I think they are important, and I am happy that we are doing this in public so that all Canadians can understand what we are doing.
Mr. Chair, I believe this observation is misguided. As I said earlier, it is imperative to recognize that it is the producer, and only the producer, who bears all of the responsibility and all of the risk for biosecurity at farm level. Producers do not need to be bullied into doing what is already in their best interests to do. They are trying to protect us. They are trying to protect their farms.
Furthermore, the voluntary nature of biosecurity protocols is a feature, not a bug, as noted by a number of witnesses who gave a number of reasons. One of them, according to Dr. Ireland — and I believe Dr. Ireland is in the room today and could refute any of this if I am all of a sudden misquoting her, although I don’t believe I am — the Chief Veterinary Officer of the Canadian Food Inspection Agency said the following:
. . . Producers are best equipped to decide on their premises which protocols and practices they should put in place.
Here is what she told this committee:
So the standards are standardized within the species, so there is one for cervids, bees, dairy, beef. There are a number of them, and they are applicable to that sector. But every farm is unique. How they raise animals, what their risks are, what diseases they are trying to keep out or manage are all very unique. So we would want each producer to look at their risks, look at their own operations and tailor these standards to their premises.
That is the intent of the standards. That is why the elements of those are put into the national association programs, and then producers implement them.
Voluntary in nature or not, they are a cornerstone of agriculture and the way we raise animals and keep diseases out. Producers are best equipped to decide on their premises which protocols and practices they should put in place.
Again, she said this:
Biosecurity in Canada is voluntary, and producers set the biosecurity standards, procedures and policies for their own premise that address the risk, their location, their type of production and the physical nature of their facility, that is, where animals are housed, how it is set up and designed. . . .
Secondly, Dr. Ireland told this committee that many producer associations are already taking the lead on this, and, in my view, this is a far better approach than having bureaucrats from Ottawa start to take the lead.
Dr. Ireland said as follows:
Some producer associations and farmers who are part of those associations are required to follow biosecurity standards. You have heard that Chicken Farmers of Canada, Turkey Farmers of Canada and Dairy Farmers of Canada have set biosecurity standards built off the federally established and collaborative standards we have established. For example, Dairy Farmers of Canada has the proAction program, which includes elements of biosecurity.
Thirdly, producers not only work on biosecurity protocols in conjunction with their association, but with their veterinarian. Ms. Greer, Associate Professor, Department of Population Medicine, University of Guelph, told the committee this:
When we come to the idea of biosecurity being voluntary, I think it’s important for us to recognize that “voluntary” essentially means that there is a whole suite of possible biosecurity measures. There is very good evidence for the sorts of things that we know work to create strong biosecurity.
What happens is individual producers, as we heard in the earlier panel, work in very close contact with their individual veterinary advisers, so their flock or herd veterinarians. They work with that individual to come up with a biosecurity plan that is tailored. It relies on the voluntary kind of suite of possibilities, and each of those producers is working with their veterinarian, their Canadian veterinarian, who is very professional and very well trained, to identify the suite of tools that they as a production unit will use for their facility in order to maintain high levels of biosecurity.
Even Ms. Rasmussen, Principal Research Scientist with the University of Saskatchewan, underscored that imposing legal requirements would be very challenging because of the diversity of farm operations.
She said:
. . . I will say from my observation of the U.S. H5N1 outbreak that it would be very challenging to impose legal requirements that would suit every farm and would be appropriate for every situation to regulate biosecurity. There are so many potential ways that biosecurity can be breached, and not just by humans. . . . I think it’s very challenging to make policy for this . . . .
Colleagues, these were the experts who appeared before this committee, and I believe we should have listened to them as we should have listened to the experts before we passed the amendment we just passed. Including an observation like this will just further erode the respectability of this committee because it demonstrates both a poor understanding of the industry and a paternalistic approach to managing challenges within the industry.
Colleagues, this observation is wrong-headed, and it should be defeated. Thank you.
The Chair: Any further debate?
Senator Dalphond: Just to say a short thing. On almost the penultimate line of my observation in English, it says “the committee urges.” It should say “the committee invites.” The French represents what I want to say.
[Translation]
The French version reads, “Le comité encourage le gouverneur en conseil.”
[English]
And I know that if there’s a different type of Governor-in-Council, that the “invite” will remain. So, with the tradition of the committee, I would say “the committee invites” and not “urges.”
The Chair: We’ll make that correction.
Senator Dalphond: Thank you.
The Chair: Any further discussion or debate? Colleagues, are members in agreement with including this observation?
Some Hon. Senators: Agreed.
The Chair: I’m hearing a little bit of both. Let’s go through the list again, please. On the inclusion of the observation, yes, please.
Mr. St. Martin: The Honourable Senator Black?
Senator Black: No.
Mr. St. Martin: The Honourable Senator Bernard?
Senator Bernard: Yes.
Mr. St. Martin: The Honourable Senator Dalphond?
Senator Dalphond: Yes.
Mr. St. Martin: The Honourable Senator MacDonald?
Senator MacDonald: No.
Mr. St. Martin: The Honourable Senator McBean?
Senator McBean: Yes.
Mr. St. Martin: The Honourable Senator Oudar?
Senator Oudar: Yes.
Mr. St. Martin: The Honourable Senator Pate?
Senator Pate: Yes.
Mr. St. Martin: The Honourable Senator Petitclerc?
Senator Petitclerc: Yes.
Mr. St. Martin: The Honourable Senator Plett?
Senator Plett: No.
Mr. St. Martin: The Honourable Senator Richards?
Senator Richards: No.
Mr. St. Martin: The Honourable Senator Robinson?
Senator Robinson: No.
Mr. St. Martin: The Honourable Senator Simons?
Senator Simons: Yes.
Mr. St. Martin: The Honourable Senator Varone?
Senator Varone: Yes.
Mr. St. Martin: Yes, 8; no, 5.
The Chair: The observation will be included in the report.
Colleagues, is it agreed that the Subcommittee on Agenda and Procedure be empowered to approve the final version of the observations being appended to the report in both official languages to ensure that the change has been made, taking into consideration today’s discussion and with any necessary editorial, grammatical or translation changes as required?
Hon. Senators: Agreed.
The Chair: Is it agreed that I report the bill as amended with observations to the Senate in both official languages?
Hon. Senators: Agreed.
The Chair: Colleagues, is there any further business? If there is no other business, I do, as always, want to thank you for your conscientious interventions, debate and contributions. I do want to say thanks to the folks who support us in our offices and behind. I also want to thank our page Alex. Thanks very much, Alex, for your support here. With that, colleagues, the meeting is adjourned.
(The committee adjourned.)