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THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS

EVIDENCE

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OTTAWA, Wednesday, May 22, 2024

The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:14 p.m. [ET] to consider Bill S-15, An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act.

Senator Mobina S. B. Jaffer (Chair) in the chair.

[Translation]

The Chair: Good afternoon, honourable senators.

[English]

I’m Mobina Jaffer from British Columbia. I am the chair of this committee.

I invite my colleagues to introduce themselves, starting on my left with the deputy chair.

Senator Batters: Senator Denise Batters from Saskatchewan.

[Translation]

Senator Carignan: Good afternoon. Claude Carignan from Quebec.

[English]

Senator Plett: My name is Senator Don Plett, and I am from Manitoba.

[Translation]

Senator Oudar: Good afternoon. Manuelle Oudar from Quebec.

[English]

Senator Klyne: Good afternoon. Marty Klyne, senator from Saskatchewan, Treaty 4 territory.

Senator Prosper: P. J. Prosper, senator from Nova Scotia, Mi’kma’ki territory.

Senator Simons: Paula Simons from Alberta, Treaty 6 territory.

Senator Cotter: I am Brent Cotter. I am a senator from Saskatchewan.

Senator Boyer: Yvonne Boyer, senator from Ontario.

[Translation]

Senator Clement: Bernadette Clement from Ontario.

Senator Gold: Marc Gold from Quebec.

[English]

Senator Tannas: Scott Tannas, Alberta.

The Chair: Before we begin, I would remind all of you who are participating in person that you should consult the card in front of you to prevent audio feedback incidents. Please take note of the preventative measures in place to protect the health and safety of all participants, including the interpreters. If possible, ensure that you are seated in a manner that increases the distance between microphones.

Only use the black approved earpiece. The former grey earpiece must no longer be used. Keep your earpiece away from all microphones at all times. When you are not using your earpiece, place it face down on the sticker placed on the table for this purpose. Thank you all for your cooperation.

Senators, as you know, we are meeting to continue clause-by-clause consideration of Bill S-15, An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act.

To help us with our examination, we are joined by officials from the Department of Justice Canada and Environment and Climate Change Canada to answer any technical questions that members may have.

We are very pleased to welcome, from the Department of Justice Canada, Joanna Wells, Senior Counsel, Criminal Law Policy Section; and Aleksander Godlewski, Counsel, Criminal Law Policy Section. And from Environment and Climate Change Canada, we welcome Stephanie Lane, Executive Director, Legislative Governance; and Basile van Havre, Director General, Canadian Wildlife Service.

You have come a number of times, and you may still have to come another time; I am not sure. I appreciate your help.

Senators, the officials are here if you have questions about the bill.

Senators, as agreed last time, the clerk has shared all the amendments and observations with the full committee. I remind senators that it was agreed that the title and preamble stand postponed. Therefore, we are resuming debate on the first amendment to clause 1 moved by Senator Klyne, labelled MK-S15-1-1-20.

Before we start — sorry, Senator Klyne — it’s a pleasure to welcome you, Senator Cotter. Thank you for being here.

Senator Klyne: Colleagues, with the first motion — or amendment — already shared and on the record, I will provide some context and clarity to complement the very similar language that has been shared with the public for over two years in the Jane Goodall act.

I realize it was a bit lengthy; however, some of the text is repetitive by adding the words “or designated animal” in brackets where the words “elephant” and “great ape” currently appear throughout the Criminal Code sections of the bill. My office explored whether a shorter version could be drafted with a general instruction to that effect; unfortunately, this could cause technical problems or errors. So it goes.

This amendment answers the joint request of the Jane Goodall Institute of Canada and nine of Canada’s leading animal welfare non-governmental organizations, or NGOs, and zoos.

The first part of the “Noah Clause” would establish in the Criminal Code an executive authority for the federal cabinet to protect, by order, additional wild species in the context of captivity to prevent animal cruelty and/or to protect public safety. If a wild species is protected in this manner, such as lions or tigers, the same legal framework would apply as it does for elephants and great apes. With those measures, all individuals of the affected species would be grandfathered in.

New captivity, including breeding, would require a licence for best interests, conservation or scientific research. No one’s animals can be taken away, absent illegal breeding or performance for entertainment, which would also be banned.

As Professor Lazare told us, this executive authority to extend a valid application of the federal law parallels other criminal statutes, such as the Controlled Drugs and Substances Act and the Canadian Environmental Protection Act, 1999.

The version before you is the product of years of consultation and development by me and my team. Alongside elephants and great apes in the code, this amendment adds designated animals. These species are defined as non-domesticated species; they are wild subspecies or hybrids. On page 5 — page 9 of the package — we have the criteria for selecting a species.

To prevent animal cruelty and/or protect public safety, the Governor-in-Council must consider whether the species can survive in captivity based on factors such as natural behaviour, relevant characteristics and needs, evidence of harms in captivity, and risk to public safety. In addition, the “Noah Clause” contains an exclusion preventing the Governor-in-Council from ever designating a species used in farming for food purposes in Canada. This is for greater certainty that this measure can never be used in relation to game farm species in Canada.

In addition, in contemplating the potential future designation of some Canadian wild species, such as bears or cougars, this part of the “Noah Clause” does not interfere with any Canadian law that provides for lawful captivity to protect property or public safety. For example, Ontario has such a law. It also clearly excludes lawful trapping.

As well, in making any designations, the “Noah Clause” will require the federal cabinet to rely on the best available scientific, veterinary, animal care or animal welfare information. That would involve engagement with experts and organizations, such as the proponents of this measure. By placing this authority with the Governor-in-Council, this power will be accompanied by the highest possible level of democratic accountability.

Thank you.

Senator Plett: I appreciate that Senator Klyne would really like Bill S-241 to become the law, but, unfortunately, that bill is no longer before us — Bill S-15 is. To try to get Bill S-241 through the back door again, I find it a little problematic.

I have a point of order on this amendment, chair.

Clearly, even though Senator Klyne would like to rewrite the bill, and have Jane Goodall rewrite the bill with him, this amendment significantly expands the scope of the legislation and is not in order. As the House of Commons publication Amending Bills at Committee and Report Stages notes:

Second reading and reference to committee is a debatable motion on the general principles of the bill. Once the motion is passed, the principle and scope of the bill are fixed.

Additionally, House of Commons Procedure and Practice, Third Edition, states on page 770:

An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.

For that quote, I refer you, honourable senators, to Bosc and Gagnon’s Chapter 16 regarding principle and scope.

In Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, paragraph 28.81 says the following:

Any amendment (or new clause or new schedule) proposed to a bill must be within its scope. The scope of a bill represents the reasonable limits of its collective purposes, as defined by its existing clauses and schedules. In particular cases, difficult questions of judgment may arise. The scope of a bill, particularly of a bill with several purposes, may be wider than its long title, although the long title may help to determine the scope. Conversely, a bill with a single purpose may have a narrow scope even though the long title is apparently wide (for example, ‘a Bill to amend a certain Act’).

Where a bill has one or two purposes, only amendments relating to those purposes, or touching on matters closely connected with them, fall within the scope of the bill.

On December 9, 2009, Speaker Kinsella noted the following:

. . . an amendment moved in committee must respect the principle and scope of the bill, and must be relevant to it. It may generally be helpful to view the principle as the intention underlying a bill. The scope of the bill would then be related to the parameters the bill sets in reaching any goals or objectives that it contains, or the general mechanisms it envisions to fulfil its intentions. Finally, relevancy takes into account how an amendment relates to the scope or principle of the bill under examination. An amendment must respect the principle of the bill it seeks to amend, must be within its scope, and must be relevant to it.

While this amendment falls within the principle of the bill, I would argue that it significantly expands the scope of the legislation for a number of reasons.

First, the government was explicitly clear that the scope of this bill was limited to great apes and elephants — clear. The summary of the bill notes this when it says:

This enactment amends the Criminal Code to create offences related to keeping elephants and great apes in captivity, subject to certain exceptions.

In his second reading speech on this bill, Senator Gold confirmed this when he said:

Colleagues, Bill S-15 takes a narrower approach than Bill S-241, which was introduced in this chamber in March 2022, by focusing solely on phasing out the captivity of elephants and great apes in Canada.

Nowhere in Bill S-15 does the legislation contemplate expanding prohibitions to other species — nowhere.

Second, not only does Senator Klyne’s amendment extend the scope to include other species, but it also extends it to species that are native to Canada. This was made clear by Senator Klyne in his comments when he noted that his amendment contemplates the potential future designation of some Canadian wild species, such as bears and cougars. The government has been explicitly clear that this bill refers to only two species, and neither of those species are native to Canada. Expanding this bill to include any species, including those native to Canada, is an undeniably significant expansion of the scope of the bill, as will become even more obvious in my following points.

One of the reasons for the narrow scope of this legislation was jurisdictional concerns, as clearly articulated by both Senator Gold and the minister. Again, in his second reading speech, Senator Gold said:

Provinces and territories have primary responsibility for protecting animal welfare, and the federal government recognizes the significant role that many provinces play in regulating animals in captivity. It has been well-documented, however, that differences exist across jurisdictions, and that these differences may result in gaps in the protection of wild animals in captivity in Canada. That is why the Government of Canada has committed to engaging with provinces, territories and stakeholders to discuss the potential value of a national approach to protecting animal welfare and public safety in relation to captive wildlife and to build on existing federal and provincial roles and best practices.

Bringing together partners and stakeholders to advance discussions on issues like roadside zoos or dangerous wild animals being kept by private individuals will lead to improved outcomes for captive wildlife. The scope and focus of the national engagement will be determined following initial consultations with the provinces and territories.

That was Senator Gold.

Then, at committee, the Minister of Environment and Climate Change echoed these comments when he said:

As you may know, jurisdiction over animals in captivity is shared among the federal, provincial and territorial governments. Canadian provinces and territories have primary responsibility for regulating zoos and protecting animal welfare. All provinces and territories have animal protection laws, and most regulate the captivity of wild animals by private individuals and zoos, including by setting standards for their care. Federal criminal laws that protect animals primarily focus on the prevention of cruelty. This is exactly what Bill S-15 aims to do.

The minister was very clear that the bill was not intended to deal with animal welfare, as this is provincial jurisdiction. He was also very clear that before moving beyond these two species, consultations with the provinces would be necessary.

This committee, colleagues, cannot arbitrarily expand the scope of the legislation as clearly defined by the government.

In order to try to stay within its constitutional lane, Bill S-15 has been intentionally crafted to try to address the issue of animal cruelty, which is very narrowly defined in criminal law and falls within the criminal law purpose of protecting morality. As stated already, the bill does not engage animal welfare, and neither does it engage public safety. The legislation, along with the government’s arguments and statements, clearly shows that the scope of this bill is to fall within its criminal law purpose for protecting morality by preventing cruelty.

When he was at committee, Minister Guilbeault said the following:

The approach taken under Bill S-15 to protect elephants and great apes takes a similar approach to the existing regime that prohibits the captivity of whales and dolphins in Canada. In 2019, Parliament banned cetacean captivity on the basis that it is cruel due to their high cognitive abilities, social structure, and the adverse physical and mental effects of captivity on these creatures.

I specifically asked the minister’s office about the criminal law purpose of Bill S-15 in an email dated February 20. The email from my office asked the minister’s office the following:

Senator Klyne has suggested that both Bill S-241 and Bill S-15 have a nexus with security and morality. In our critic’s briefing, the focus just seemed to be morality. Is the government also of the position that the valid criminal law purpose of Bill S-15 is both security and morality or just morality?

The minister’s office responded with the following:

The purpose of the amendments to the Criminal Code in Bill S-15 is to phase out the captivity of elephants and great apes in Canada on the basis that it is cruel and morally wrong to keep these animals in captivity, given their inherent characteristics and negative experiences in captivity. The criminal law purpose of protecting morality is reflected in the bill’s preamble and legislative scheme. The preamble states that certain animals, particularly elephants and great apes, should not, because of the cruelty it represents, be kept in captivity. While security or public safety may be valid criminal law purposes, the bill’s focus is on morality and the cruelty that captivity of elephants and great apes represents. There is no mention of security or public safety in the preamble, nor do any of the bill’s provisions address these matters.

This is still the minister’s office writing the following:

The elephant and great ape regime under Bill S-15 is modelled on the law adopted by Parliament in 2019 to protect cetaceans in captivity — Bill S-203 and Bill C-68 — which aims to gradually phase out the captivity of cetaceans due to its moral wrongness, not for public safety or security reasons.

Madam Chair, the minister’s office has been clear on this matter. Senator Klyne’s amendment goes well beyond the scope of the government’s intentions with this bill. This is clearly illustrated when his amendment requires the government to do the following, and I will quote here from the amendment:

(2) . . . making a recommendation under subsection (1), the Minister must consider the following:

(b) whether the biological needs of individual animals of that species to live a good life can be met in captivity, including, in particular,

(i) the ability of animals of the species to engage in natural behaviour while in captivity,

(ii) the intelligence, emotions, social requirements, physical size, lifestyle and potential use in performances of animals of the species, and

(iii) the evidence of harm to animals of the species in captivity, including stereotypies, health problems in captivity, shorter lifespans and increased infant mortality rates; and

(c) the public safety risks posed by animals of the species.

Madam Chair, these are all very important considerations, but they are all related to either animal welfare or public safety — neither of which are contemplated by this legislation, and both of which are outside the scope of this bill.

If Senator Klyne wanted to have this bill, he should have introduced this bill. He brought us Bill S-15. He is now changing the scope of the bill.

Madam Chair, I would ask that you rule this amendment inadmissible, as it is clearly beyond the scope of the bill for all of the reasons that I just mentioned. Thank you, Madam Chair.

The Chair: Thank you, Senator Plett. Senator Gold, do you have a response?

Senator Gold: I believe the sponsor wanted to respond. I’m happy to wait.

The Chair: Okay, but Senator Batters is next.

Senator Batters: In his opening remarks today, Senator Klyne stated something like — and obviously I don’t have the exact note — “This amendment is the product of two years of work by me and my team.” But what I assume Senator Klyne meant by that comment is the work that Senator Klyne and his team did on his private member’s bill — the former Bill S-241 — which he introduced two years ago in the Senate. But Senator Klyne withdrew that bill from the Senate’s consideration months ago. That bill was much more expansive and was never dealt with at this committee.

Given that, we never heard any evidence here about it. While that now-defunct bill might have been in the Senate Chamber for quite some time, our committee never had it under consideration — and I, personally, am not as familiar with it because it was only at second reading and not studied by this committee — and it is much more expansive.

I also note this is so unusual because Senator Klyne is the sponsor of a government bill, bringing a massive amendment which changes the scope of the bill; this is something that the minister had indicated when he was here. This is the bill as it is. It’s not even close. It is so much more expansive.

We have had no evidence to be able to properly evaluate the scope of it. That is the reason we have this: A point of order like this is so important to consider, because we really have no way, as a committee, to properly evaluate such an expansive amendment as this.

Senator Klyne: We are dealing with Bill S-15. The amendment before us is in the scope of Bill S-15 as adopted at second reading.

The Speaker’s ruling of December 9, 2009, describes the scope of a bill as:

. . . related to the parameters the bill sets in reaching any goals or objectives that it contains, or the general mechanisms it envisions to fulfil its intentions. . . .

The Speaker’s ruling on April 13, 2017, discussed both the principle and scope of a bill. After quoting the above passage, Speaker Furey stated:

Amendments must, therefore, be in some way related to the bill and cannot introduce elements or factors alien to the proposed legislation or destructive of its original goals. In addition, amendments must respect the objectives of the bill. In considering these issues, it may be necessary to identify the fundamental policy and goals behind a bill. Factors such as the long title of the bill, its content and the debate at second reading may be taken into account. Debate at second reading is particularly relevant since, according to rule 10-4 “The principle of a bill is usually debated on second reading.”

In my second reading speech of Bill S-15, as the sponsor, I referred to a committee’s potential consideration of amendments. I said:

. . . topics to consider for an amendment in conjunction with Bill S-15 may include banning elephant rides; authorizing judicial relocation of captive wild animals involved in illegal breeding or performance, sentencings for these offences with costs . . . and providing a mechanism to extend legal protections to additional captive wild species by cabinet decision.

I will tell you that last phrase and reference is the “Noah Clause.”

In reference to the differences between Bill S-15 and the previous Bill S-241, the Jane Goodall act, I said:

. . . in my view as sponsor, as we debate Bill S-15 at second reading, the legislation is consistent with considering such amendments at later stages —

— that is in my quote —

— particularly as both bills amend the same two statutes regarding wildlife captivity.

Also relevant, at second reading of Bill S-15 on February 8, the critic argued that Bill S-15 and the previous bill — Bill S-241 — were so similar that they amounted to the same question. In such a case, one would expect the bills to have the same or a very similar scope.

As we know, Bill S-241 contained a “Noah Clause.” Yet, today we hear that Bill S-15 — as we were told, it’s the same bill as Bill S-241 — cannot have a “Noah Clause” according to its scope. This is a contradiction.

When he was before the committee on this bill, Minister Guilbeault said, “I don’t think it’s my place to tell you senators what amendments you should make.”

He continued:

My message to you is that the government is very open to amendments that senators would see fit to bring to this bill.

In terms of its legal proposals, Bill S-15 amends the same two statutes regarding the subject of restricting the captivity of wild species. These amendments are squarely within that scope.

Reinforcing this point, the bill’s long title is generally worded: “An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act.”

Moreover, the Senate has broad latitude to make amendments in terms of scope. Page 141 of Senate Procedure in Practice states that Beauchesne notes:

. . . [the] committee may so change the provisions of the bill that when it is reported to the House it is in substance a bill other than that which was referred.

In addition, the Senate has a presumption that matters are in order and that debate may proceed.

Page 83 of Senate Procedure in Practice states:

The Senate is often flexible in the application of the various rules and practices governing debates. As stated by Speaker Molgat in a ruling on April 2, 1998:

It is my view that matters are presumed to be in order, except where the contrary is clearly established to be the case. This presumption suggests to me that the best policy for a Speaker is to interpret the rules in favour of debate by Senators, except where the matter to be debated is clearly out of order.

Chair, I submit that this is not a closed case; were it one, the Senate’s presumption should apply that my amendment is within scope. I, therefore, invite you to decline this point of order which, if successful, would have the effect of limiting debate and preventing a democratic decision on the amendment before us for which we have heard evidence.

Thank you.

[Translation]

Senator Carignan: I agree with the point of order. The purpose of the bill was to prohibit the keeping in captivity of great apes and elephants, to make that a crime. Now a whole bunch of new categories of animals is being added. There’s no limit at all. The only exclusion is animals used for food production. All the thousands of species that exist around the world are now covered by the bill. You couldn’t have a broader scope if you went from covering two animal species to covering thousands with a cabinet decision.

I don’t see how an amendment could possibly expand things more than the amendment our colleague just made. Obviously, the only exclusion is animals used for food production. That’s about 20 species. I don’t have a list, but it’s a pretty small number compared to the thousands of species out there.

I agree with my colleague, Senator Plett, that this takes things from two species to thousands. The bill could not be any broader. In my opinion, it’s out of the question.

[English]

Senator Dalphond: I’ll be brief. I look at the bill that is before us and I look at the preamble, which is a good indication of the intent of those who drafted it, I suppose. It states, “Whereas Parliament recognizes the evolution of public opinion on the captivity of certain animal species that are not domesticated . . . .”

The first concept is related to animals that are not domesticated, so that eliminates a certain amount of animals.

The second “whereas” is this:

Whereas Parliament is of the view that the science establishes that certain animals, particularly elephants and great apes, should not, because of the cruelty it represents, be kept in captivity . . . .

It doesn’t say, “Whereas Parliament is of the view that great apes and elephants should not be held in captivity.” It says, “certain animals, particularly elephants,” so it’s part of a list. It’s not exclusive or closed. It presents examples of those that we try to protect: those that are not domesticated and held in captivity.

The third “whereas” is about these animals in captivity. The amendment refers to the same concepts. It uses the words and definitions on page 9 of 27. It states, “. . . the Governor in Council may designate, by order, a non-domesticated species of animal . . . .”

We are always dealing with the same concept from beginning to end — not domesticated. We’re not dealing with all the other animals on the planet. We’re dealing with animals that are not domesticated, and that are not fit to be held in captivity. It’s much narrower than the presentation that Senator Carignan is making.

Then, there are criteria that apply to the Governor-in-Council before it can use that power.

In my view, this is not against the spirit or the scope of the bill as defined, as I see it. It’s broader than what was introduced, but the preamble shows the intent was not to limit itself to these two species. Thank you.

[Translation]

Senator Carignan: I think Senator Dalphond is using the preamble as though it contained legislative provisions. Bill S-15 is made up of clauses starting at 445, which are amended. The bill is not the preamble. Even the preamble is quite short. The amendment has absolutely nothing to do with what’s set out in the preamble. A preamble expresses the legislative intent. A preamble can be 100 pages long. What Senator Dalphond’s former colleagues will rule on in court are the Criminal Code clauses starting at 445. That’s the bill.

[English]

Senator Batters: These comments about how it is limited are interesting because it’s actually called the “Noah Clause” by the sponsor. That’s meant to reference the biblical Noah’s ark, which contained two of every single animal on the planet. With minor exceptions made in this bill, it’s meant to be extremely expansive, and you can tell that by what they call the amendment.

Senator Plett: Madam Chair, I’m wondering if, during a point of order, I’d be allowed to ask the officials some questions.

The Chair: Go ahead.

Senator Plett: I have a number of questions I would like to pose. I’ll simply throw it out there, and you can decide who will take the questions. I’m certain that either you or your colleagues were very involved in developing the policy that Bill S-15 expresses as law, and you were part of drafting the process.

My first question is this: What can you tell this committee about why the bill only included elephants and great apes, and did not include designated animals like Bill S-241?

Stephanie Lane, Executive Director, Legislative Governance, Environment and Climate Change Canada: If any of my colleagues would like to add anything, I welcome that. As noted by the bill, the focus of the species is because of the science and the evidence that was determined to assess the fact that with regard to elephants and great apes — because of a variety of biological characteristics such as size and social characteristics — it is inherently cruel to keep those species in captivity. That is the rationale for including those species in the legislation.

Senator Plett: Thank you. And only those species. If this amendment were adopted, how would this new process of determining a designated animal work?

Ms. Lane: I’m not sure we’re in a position to speak to that now, as the bill in front of us — Bill S-15 — has not been amended to include those provisions. I don’t know if there are more specific questions.

Senator Plett: I have more questions, but I find it strange that the sponsor of the bill is significantly amending the bill, and the officials cannot even tell us how this would work. I’m perplexed that the sponsor wouldn’t have communicated with you. But if your answer is that you don’t know, then I’ll accept that. I’m sorry; this is not in any way reflective of what you may or may not have done. I would say the sponsor of the bill dropped the ball here by not running this by you so that we could have these answers, because he’s significantly amending the bill here.

Part of the amendment requires that the minister must consider:

(b) whether the biological needs of individual animals of that species to live a good life can be met in captivity, including, in particular,

(i) the ability of animals of the species to engage in natural behaviour while in captivity,

(ii) the intelligence, emotions, social requirements, physical size, lifestyle and potential use in performances of animals of the species, and

(iii) the evidence of harm to animals of the species in captivity, including stereotypies, health problems in captivity, shorter lifespans and increased infant mortality rates; and

(c) the public safety risks posed by animals of the species.

Is this work that Environment and Climate Change Canada currently does?

Ms. Lane: No, Environment and Climate Change Canada does not. Perhaps Mr. van Havre could speak to the current types of permits issued under the Convention on International Trade in Endangered Species of Wild Fauna and Flora. But at this time, Environment and Climate Change Canada does not have that expertise.

Basile van Havre, Director General, Canadian Wildlife Service, Environment and Climate Change Canada: My colleague is correct; we do not have expertise on species that are not native to Canada. We administer the Convention on International Trade in Endangered Species of Wild Fauna and Flora. In some cases, there is a requirement to examine the permit issued by other nations, and we do it on the basis of administrative controls that are defined in the convention.

Senator Plett: Does Environment and Climate Change Canada currently have the resources to do this kind of work, or would you require additional resources and expenditure of public funds to acquire in-house expertise or enter into contracts with necessary scientists, veterinarians and/or other professionals, if this amendment passed?

Ms. Lane: I’m not in a position at my level to say whether or not the department has sufficient resources. Questions of resources are determined at higher levels.

Senator Plett: It’s unfortunate that you can’t answer that. I guess you wouldn’t be able to answer my next question either: What additional resources would be required?

Environment and Climate Change Canada is responsible for the implementation of the federal Species at Risk Act, which protects endangered species in Canada, and I understand it is the Committee on the Status of Endangered Wildlife in Canada, or COSEWIC, which conducts the classification of wildlife species at risk of extinction and then reports to the minister. Again, if this amendment passes, would you see this model as being a possible path forward to enable the minister to fulfill his or her new obligations created by this amendment, where an independent panel would be created and report to the minister on species which would receive protection under Bill S-15?

Ms. Lane: With respect to COSEWIC, perhaps my colleague could provide a bit of information on the work they do. As noted and as included in the amendments, there is not — as I see it — a provision related to an external advice-giving body that would provide advice to the minister on that. I can’t speak to whether or not the COSEWIC model would be appropriate in this particular context.

I don’t know if you would have anything to add, Mr. van Havre.

Mr. van Havre: COSEWIC has been a long-standing committee — as you know — providing valuable service in the evaluation of the status of species from Canada, and the expertise on COSEWIC comes from Canadian experts and sometimes foreign ones. But it is specifically directed to the species in our country.

For this committee to look at foreign species would be a significant change.

The Chair: May I ask you to repeat what you answered when Senator Plett first asked you about your ability with regard to why only these two species were chosen? You gave a very specific answer. Can you repeat that please?

Ms. Lane: I probably would not be able to repeat it word for word, but the point was that Bill S-15 was structured and included those two species — elephants and great apes — for a variety of reasons, including their social structures, their biological factors and their size, and the fact that it is inherently cruel to keep those species in captivity.

The Chair: Senators, I’m now going to —

Senator Plett: I have a number of more questions.

The Chair: Senator Plett, I have given you a lot of leeway.

Senator Plett: I understand, but we’re debating a point of order, chair.

The Chair: Yes, but you can’t go on forever. I’ll give you one more question.

Senator Plett: I’m sorry, chair.

The Chair: That is my ruling. One more question, if you want to ask it, and that’s it.

Senator Plett: Chair, we are debating a point of order. I have questions that are relevant. We have the representative of the government sitting across from us who is not making an opinion on this. He was asked to be on the list and took himself off the list. We don’t have a minister, which we asked for. I should get questions —

The Chair: Ask your question.

Senator Plett: Okay, I have four more questions here that I want to ask.

The Chair: Put them together, and then they will answer them.

Senator Plett: Fine. I will read them all at one time, and hopefully you’ll be able to keep up. I apologize to the witnesses for this.

The government’s arguments and statements clearly show that the scope of this bill is to fall within its criminal law purpose of protecting morality by preventing cruelty.

In your opinion, does this amendment expand the scope of the bill? Why was the minister’s office adamant that this bill engages only the morality aspect for its criminal law purposes, and not public safety? Would you agree that this amendment would result in engaging the public safety aspect of criminal law in addition to the morality aspect? Do you have any concerns that this amendment could set up a conflict for the federal government by steering it into provincial jurisdiction concerning animal welfare?

Lastly, the minister noted that before moving further than great apes and elephants, the federal government intended to consult with the provinces. Can you tell me whether these consultations have started and, if so, how far along are they?

Ms. Lane: On the first question, perhaps I will separate it from the premise of the question, which was related to the criminal law power. The question was this: Would this expand the scope of the bill? I would say it does change the scope of the bill in that it allows more species to be added, some of which are domestic species.

I can’t speak to the question of why not. I think your question was this: Why was the minister’s office adamant that it not include public safety? Do I have that correct?

Senator Plett: It was this: Why was the minister’s office adamant that this bill engages only the morality aspect for its criminal law purposes, and not public safety?

Ms. Lane: I think, as framed, Bill S-15 is premised on the morality aspect of the criminal law. Perhaps my colleagues could speak —

Senator Plett: I would like to ask about the law. Maybe you want to do the rest of them —

Ms. Lane: Perfect. Yes, I’ll leave the questions around public safety and the results of the public safety elements to my colleagues, and then perhaps my colleague could speak to the work of the provinces and territories.

Aleksander Godlewski, Counsel, Criminal Law Policy Section, Department of Justice Canada: Senator, I’m sorry; would you mind briefly repeating the wording of the question related to public safety?

Senator Plett: Why was the minister’s office adamant that this bill engages only the morality aspect for its criminal law purposes, and not public safety? Would you agree that this amendment would result in engaging the public safety aspect of criminal law in addition to the morality aspect?

I’m not wanting to — whether the other ones would be for you.

Do you have any concerns that this amendment could set up a conflict for the federal government by steering it into provincial jurisdiction concerning animal welfare? And lastly, the minister noted that before moving further than great apes and elephants, the federal government — this wouldn’t be for you — intended to consult with the provinces, and I’m wondering how far these consultations have gone.

Mr. Godlewski: With respect to your question about the minister’s office, that’s, unfortunately, not a question I can answer.

With respect to your question about public safety in addition to morality, at the very beginning, I’ll say I’m not able to offer a constitutional opinion on what the bill does. On my reading, when I look at the bill, I do note that it does refer to the public safety risks posed by animals of the species as one of the criteria that relates to the designation of animals. But I wouldn’t be able to offer an opinion on the constitutional aspects of the bill.

Senator Plett: Well, chair, this is why we ask for the minister to be here. But please, if you have an answer —

Mr. van Havre: If you got to the consultation with provincial and territorial colleagues, this item was on the agenda in recent calls with the provinces and territories at the senior level, and we’re now assembling a list of specialists that could work with us in terms of determining what can be done for those issues. There was good reception. I, personally, know a number of the colleagues in the provincial and territorial administrations that will be engaged in this work, and I am looking forward to it.

Senator Plett: So you haven’t started yet, but you’re in the process of it.

Mr. van Havre: Yes.

Senator Plett: Thank you.

Senator Gold: With all the debate and discussion that went on, I didn’t feel I had anything to add, which is why I withdrew my list in response to your observation, Senator Batters. My sense is this does, in fact, respect the overall intent of the legislation for the reasons that were expressed. In this regard, I defer completely to your judgment, chair.

Senator Dalphond: I have one question for the officials to complete. It was not asked among the list. The question will be for the officials from the Department of Justice and for those who operate in the department.

If the bill were to be adopted tomorrow, including this proposed amendment, in terms of implementing the bill, what would be different for you with or without the clause? That clause allows the Governor-in-Council to further a certain process to engage and add something. This is not being engaged yet, and might never be engaged. I suspect that some governments will never be interested to engage in that.

For tomorrow morning, after the bill is adopted, it’s the same thing, except there is that provision that might be used at one point. If the Governor-in-Council was of the view to exercise it, I suppose the Governor-in-Council will ask questions to the department about the ability to enforce adding in a specific species. Do we have the expertise to do it or not? If we don’t, do we need money? Do we need to hire people? Do we need more of a budget? Do we need another Royal Recommendation to implement the budget? I guess that would be part of the normal exercise of adopting an order-in-council. Am I wrong? I think that tomorrow morning, this — with or without the amendment — means the same thing for the operation of the department, and, from a legal perspective, things have to be done in order to enlarge the scope of the bill.

Ms. Lane: Thanks for the question. Yes, you’re right; the bill does not automatically add any species to the bill. The Governor-in-Council orders are essentially regulations that require a process of prepublication in the Canada Gazette, as well as consultations and finalization in the Canada Gazette, Part II. You are correct; if the bill were adopted with the amendments proposed in this motion, it would not change the operations of the department tomorrow with respect to what has been proposed in Bill S-15.

Senator Dalphond: Are there any comments from the Department of Justice? No, thank you.

Senator Carignan: When? Because you said tomorrow it will not, so when will it?

Ms. Lane: The reason I referenced tomorrow is because that was in the question that Senator Dalphond posed. The process for developing an order-in-council and having a recommendation depends on the type of regulatory process, but it often takes between 12 and 18 months to develop a regulation with the consultations required.

[Translation]

Senator Carignan: Okay. We also need to study all the other species that could be affected by a ban. Will a scientific study of all these species require money?

Ms. Lane: I don’t know if Environment and Climate Change Canada will need more money to implement this amendment.

[English]

The motion indicates a series of factors that the minister must consider prior to making a recommendation to the Governor-in-Council or cabinet before making that order. There would be evidence required by the department to compile and provide recommendations on the species.

The Chair: Senators, it is my ruling that this bill does respect the objective of the scope of the bill. I believe it is for the committee to debate this amendment. Then, each senator will make up their mind. That’s my ruling.

Senator Plett, you can appeal this ruling in the Senate.

Senator Plett: I’m amazed that, without even catching a breath, the officials clearly said it expands the scope of the bill. We heard it right from the officials. Without even contemplating, the debate is hardly finished and we have a ruling.

The Chair: Yes.

Senator Plett: I certainly — for the record — appeal the ruling and would like to have a vote.

I’m amazed that with the constitutional experts, lawyers and judges that we have around this table, they are so fixated with their stereotyping that they do not think within the law.

I appeal your ruling.

The Chair: You will appeal my ruling in the Senate or here?

Senator Plett: I appeal your ruling right here.

The Chair: Okay, go ahead.

Senator Carignan: Here, but in the Senate on another day.

The Chair: Shall the chair’s ruling be sustained?

Senator Plett: No.

The Chair: We’ll go by a vote. I want a vote.

Senator Plett: Nobody said “yes.”

The Chair: Yes or no?

An Hon. Senator: Yes.

The Chair: I’ll repeat it.

Shall the chair’s ruling be sustained?

Some Hon. Senators: No.

Some Hon. Senators: Yes.

The Chair: In my opinion, the “yeas” have it.

An Hon. Senator: No.

The Chair: We’ll record a vote.

I won’t vote, since it’s my ruling.

Vincent Labrosse, Clerk of the Committee: The Honourable Senator Jaffer?

Senator Jaffer: Abstain.

Mr. Labrosse: The Honourable Senator Batters?

Senator Batters: No.

Mr. Labrosse: The Honourable Senator Boyer?

Senator Boyer: Yes.

Mr. Labrosse: The Honourable Senator Carignan?

Senator Carignan: No.

Mr. Labrosse: The Honourable Senator Clement?

Senator Clement: Yes.

Mr. Labrosse: The Honourable Senator Cotter?

Senator Cotter: Abstain.

Mr. Labrosse: The Honourable Senator Dalphond?

Senator Dalphond: Yes.

Mr. Labrosse: The Honourable Senator Gold?

Senator Gold: Yes.

Mr. Labrosse: The Honourable Senator Klyne?

Senator Klyne: Yes.

Mr. Labrosse: The Honourable Senator Pate?

Senator Pate: Yes.

Mr. Labrosse: The Honourable Senator Plett?

Senator Plett: No.

Mr. Labrosse: The Honourable Senator Prosper?

Senator Prosper: Yes.

Mr. Labrosse: The Honourable Senator Simons?

Senator Simons: No.

Mr. Labrosse: The Honourable Senator Tannas?

Senator Tannas: No.

Mr. Labrosse: Yeas: 7; nays: 5; abstentions: 2.

The Chair: We’ll continue with the debate on this amendment.

Senator Batters: Chair, I would like to make a motion at this point, given the expansive nature of this and the number of animals that could now be considered by this bill.

The Chair: We haven’t discussed the amendment. This was just a point of order. We haven’t looked at the amendment.

Senator Batters: I’m aware. I may wish to make a motion that we reopen committee evidence to hear some evidence about the types of animals that could be included in this and the expansive nature of it, because we had many meetings where we had elephant experts and great ape experts.

We didn’t have experts who talked about any other animal types — a little bit on big cats, but that’s about as far as it went. Now we could have thousands of animals potentially included in this, all at the direction of —

The Chair: We haven’t voted on the amendment yet.

Senator Batters: I’m aware of that. However, I feel like —

Senator Plett: So we are moving on?

The Chair: No. We are debating it. We haven’t debated it.

Senator Batters: We will have a debate about the amendment, I know.

I feel like we need to have some actual evidence brought to this committee.

The Chair: Let’s see after the amendment. I’m going to hear the amendment.

On debate, we’ll start with you again, Senator Klyne, on this amendment. Can you repeat what you said about this amendment?

Senator Klyne: It’s in the record. I have read it.

The Chair: A short version.

Senator Klyne: A short version?

Senator Plett: I have a subamendment too at some point.

The Chair: I will come to that, senator. It’s on the list.

Senator Klyne: This amendment answers the joint request of the Jane Goodall Institute of Canada and nine of Canada’s leading animal welfare NGOs and zoos.

The first part of the “Noah Clause” would establish in the Criminal Code an executive authority for the federal cabinet to protect, by order, additional wild species in the context of captivity.

If a wild species is protected in this manner, such as lions or tigers, the same legal framework would apply as it does for elephants and great apes.

As with those measures, all individuals of the affected species would be grandfathered in. New captivity, including breeding, would require a licence for best interests, conservation or scientific research. No one’s animals can be taken away, absent illegal breeding or performance for entertainment, which would also be banned.

As Professor Lazare told us, this executive authority to extend a valid application of the federal law parallels other criminal statutes, such as the Controlled Drugs and Substances Act and the Canadian Environmental Protection Act, 1999.

This version before you is the product of years of consultation and development by me and my team. Alongside elephants and great apes in the code, this amendment adds designated animals. These species are defined as non-domesticated species. They are wild subspecies or hybrids.

On page 5, which is page 9 of the package, we have the criteria for selecting a species. To prevent animal cruelty and/or to protect public safety, the Governor-in-Council must consider whether the species can survive in captivity. Factors include natural behaviour, relevant characteristics and needs, evidence of harms in captivity, and risk to public safety.

In addition, the “Noah Clause” contains an exclusion preventing the Governor-in-Council from ever designating a species used in farming for food purposes in Canada. I’m sure the farmers and others will be grateful for that. This is for greater certainty that this measure can never be used in relation to game farm species in Canada. Again, I’m sure those will be welcome.

In addition, in contemplating the potential future designation of some Canadian wild species, such as bears or cougars, this part of the “Noah Clause” does not interfere with any Canadian law that provides for lawful captivity to protect property or public safety. It also clearly excludes lawful trapping.

As well, in making any designations, the “Noah Clause” will require the federal cabinet to rely on the best available scientific, veterinary, animal care or animal welfare information. That would involve engagement with experts and organizations, such as the proponents of this measure.

By placing this authority with the Governor-in-Council, this power will be accompanied by the highest possible level of democratic accountability.

Thank you for having a second reading.

The Chair: Thank you.

Senator Simons: I have some sympathy for the thinking behind this amendment for the simple fact that, as Senator Plett has well expressed, great apes and elephants in Canada are well cared for in captivity.

The animals that really seem to be at risk, as we heard in the evidence, are the big cats, who are often kept in roadside zoos or in private collections.

We also heard evidence of concerns about the keeping of reptilian species, including crocodiles, alligators, large snakes and tortoises. We did hear from some experts on this.

I do worry a little. I’m not sure that I believe the amendment was in scope, and I voted accordingly.

Now that we’re debating it, I have some questions about fur farming. There have been efforts in the past to ban fur farming. This bill has an exclusion for animals farmed for food — very explicitly. And I wonder if maybe Senator Klyne, and perhaps the officials from the department, could speak about what this might mean for animals that are not — I mean, obviously, sheep are domesticated, and alpacas are domesticated. Are foxes considered domesticated? They are farmed for their fur. How about martens or minks? These are animals that are not tame by any sense of our usual sense of what is domesticated. I wonder if you imagine that they could be encompassed in this.

The Chair: Before you answer, Senator Boyer has a question.

Senator Boyer: It was a question on process. It doesn’t have anything to do with fur farming.

The Chair: Let’s ask the officials, and then we’ll come back to you.

Mr. van Havre: With regard to fur farming and species, foxes, minks and martens are not considered domesticated species. They are wild species.

Senator Simons: This would in theory allow the government by order-in-council to ban fur farming in Canada.

Senator Klyne: It also clearly excludes lawful trapping.

Senator Simons: I’m not talking about trapping. Trapping wild animals is different than farming foxes. I am not taking a position on whether I think banning fur farming is a good or bad thing. I’m simply pointing out that this could be perhaps an unintended — or an intended — consequence of the act for the Governor-in-Council to ban that economy by virtue of this kind of legislation.

Ms. Lane: There is no definition in the bill or in the motion for what “non-domesticated” means. That will be a determination made. As you’re noting, there are specific exemptions in how they define a designated animal: It has to be non-domesticated, but also the exceptions, as you noted, include trapping that is lawfully done within a province or under an Aboriginal treaty right, or farming for food purposes.

Senator Simons: But just so we’re clear, trapping is not what happens at a fur farm. I mean, trapping is what happens when you lay a trap and you capture an animal in situ — not in a barn or breeding. Elk, for example, are not considered domesticated always, but they would be excluded because they are raised for food — but animals that might be raised for fur or feathers would not be necessarily.

Ms. Lane: The bill specifically refers to farming for food purposes.

Senator Simons: Okay.

Senator Boyer: My question is for you, Senator Klyne, and it’s about the process. It’s something I’m curious about. How did you come up with the amendment that you have for “designated animal,” and did you work with the minister’s office on these amendments?

Senator Klyne: It was contemplated for the development of the “Noah Clause” — and the amendment adds designated animals, and these species are defined as non-domesticated species. Foxes are wild subspecies or they are hybrids.

Senator Boyer: Did you work with the minister’s office when you were putting this all together?

Senator Klyne: Senator Sinclair led this.

Senator Boyer: Thank you.

The Chair: Senator Plett, now is the time to put your amendment.

Senator Plett: Well, I’m not sure I want to put my amendment down yet. I have a few comments to make. I would like to speak to those first.

We clearly heard the officials tell us that this expands the scope of the bill. I have no issue with what Senator Klyne is trying to do in as far as he wants to put all these species in — similar to what he had in Bill S-241, where he had 800 species. But he, as Senator Batters said, withdrew Bill S-241. My issue isn’t with that. I would oppose it because I didn’t agree with it. But he has the right to do that. He is creating a different bill here, and, ironically, it’s with the help of the government leader right here. The government leader is helping Senator Klyne amend his own bill.

We have officials telling us this expands the scope. It is clearly so far from what the first bill was that, Madam Chair, I cannot understand how you would — first of all, I can’t — please, Madam Chair, please.

The Chair: But I already ruled on it.

Senator Plett: I understand you already ruled on it. You gave Senator Klyne the opportunity then to read his whole amendment again. So would you now allow me to make my argument, please, Madam Chair?

The Chair: No, with Senator Klyne, we were looking at the amendment. As for what you said —

Senator Plett: Then you let him make his argument again on the amendment. Now you’re shutting off debate.

The Chair: On the point of order, I already ruled on it.

Senator Plett: I understand that. That’s done.

The Chair: We’re moving on.

Senator Plett: I am moving on.

The Chair: Do you want to make your amendment?

Senator Plett: Madam Chair, I have the right to my preamble for my subamendment, just like anybody else.

The Chair: That’s why I’m asking you. You also have an amendment on your clause. I’m asking you to make it. I know you have a right. That’s why I’m asking you to do it.

Senator Plett: Will you now allow me, please, to speak, Madam Chair?

The Chair: Yes, on this clause.

Senator Plett: Thank you. That’s what I’m speaking on.

The Chair: Go ahead.

Senator Plett: I am speaking on the amendment and the subamendment that I will make in due course.

The Chair: Go ahead.

Senator Plett: As we heard here, we had officials tell us this is out of scope. Now this is speaking to the amendment, not to your ruling. This is speaking to the amendment. I am hoping that somewhere along the line, senators will have a sober second thought and realize this is a different bill before us than what we voted on at second reading.

The Chair: Can you move on to the clause you have here?

Senator Plett: Well, I’m going to make a motion right now, Madam Chair. I’m going to make a motion that we suspend and that we bring in the minister. We must bring back members of the zoos. We must bring back biologists. Because we now have a bill before us with the “Noah Clause” that is essentially Bill S-241. That is not the bill we debated — Madam Chair, I’m making a motion.

The Chair: Very well. We will vote on it. Senators, we will vote on this.

Senator Klyne: [Technical difficulties] — we’re adding species. We’re not, because the way this is written —

The Chair: There is a motion here, Senator Klyne.

Senator Klyne: The Prime Minister would have to get involved with this to add anything. We’re not adding anything now the way it’s written. It places the authority with the Governor-in-Council. This power will be accompanied by the highest possible level of democratic accountability. We are not adding anything.

Senator Plett: Madam Chair, I have the floor here. And you are cutting off — this is the first committee meeting where you are actually cutting off people from speaking.

The Chair: You said a motion. We’re going to vote on your motion.

Senator Plett: I haven’t made the motion yet.

The Chair: Go ahead. Make it. I thought you finished your motion.

Senator Plett: No, and I have quite a while to speak before I am finished with the motion.

The Chair: Go ahead.

Senator Plett: Thank you, Madam Chair.

We have a bill in front of us — please, I know I’m going to repeat myself, but you keep cutting me off.

We have a bill in front of us now that is not something we voted on at second reading. So we have that in front of us today. Bill S-241 had 800 species. I don’t know for sure how many species Senator Klyne is putting here now. Because of the number of species that Senator Klyne is adding here, Madam Chair, I would expect that senators here — even those who don’t like the fact that I don’t like this bill and that I am voting against it, and that I am hard on them and I say things about them — would still be professional enough in their duties to at least consider and want to see and hear from people before we vote on something here that is so completely away from what we ever decided at second reading. You are now simply asking us to vote on something that was not discussed at second reading.

The Chair: I have not asked —

Senator Plett: You did by ruling against my point of order. Chair, I make a motion that this meeting be suspended and we call back people again, and that we develop another witness list. That is my motion.

The Chair: Call the motion. Senators, before we call this motion, I just want to say to you that we have not adopted this clause; we are debating it. This has not been adopted by us, so it’s not like we have adopted this clause; we are debating it. It’s not part of the bill, and we haven’t opened anything. Everybody has the right to bring an amendment, as you do. But if you have that motion, we will vote on it.

Senator Batters: I agree with Senator Plett. I was going to make a similar motion. I think we need to hear from the justice minister, whom we didn’t hear from before because he was travelling somewhere. We need to hear back from the environment minister to know if the government actually supports this because, if they do, it’s a backdoor piece of legislation to bring a minor bill — with Parliament legislating it, it would be great apes and elephants, and that is it from Parliament’s point of view. Then, the cabinet has the ability to just legislate basically whatever other types of animals they can think of under the sun, with a small number of exceptions, but it’s called the “Noah Clause” for a reason. We haven’t heard witnesses — in the number of weeks of committee hearings that we’ve had — who have dealt with any of those types of animals that could be dealt with simply by cabinet decree. This is not government accountability in the least.

I know, chair, that you said that we haven’t voted on this yet. If we had voted on this amendment, then we would be prevented from potentially resuming committee meetings on this, with witnesses who can talk about the pros and cons. I’m looking through this amendment, and I think there are typos in it. I don’t know where some of the parts of it come from, so I am anxious to hear about that.

I’m absolutely stunned. We have the Senate government leader sitting across from us, who has been quiet. Does the government actually support this? If they do, why didn’t they bring this as the government bill instead of the very minimal great apes and elephants that are already robustly protected in Canada? If this is the real plan all along, as it seems to be — you have the government sponsor. It’s one thing to have the government sponsor bring an amendment like this — and I was kind of expecting that Senator Klyne might be removed as government sponsor because this is just so unheard of.

We need to have actual witnesses who can tell us the pros and cons of this kind of thing. Today, we had government officials saying, yes, it very much expands the scope of the bill. We need to make sure we actually have witness testimony to back it up, because we’re not even close to having a vote.

Senator Gold: I think I expressed at the very beginning of clause-by-clause consideration that the government has not taken a position on this clause, although we got derailed rather quickly, if you’ll recall, at the first meeting. I’ll repeat it to answer Senator Batters’ question.

Given that this is an area of shared jurisdiction, the minister and the officials have expressed to this committee — and I’m expressing on behalf of the government — that further dialogue is required with the provinces, territories and partners as to what more may be needed. Although the government will always consider amendments that are brought forward by the Senate, the government has not taken a position for or against this particular amendment, although it has some positions on others — some of which we will support and some of which we will oppose when we get to them, but many of which the government will abstain from out of respect for the committee.

I’m here ex officio — for those who are watching — which means that I have a vote as the representative of the government, as does my colleague Senator Plett, were he here in his capacity as ex officio. But because the government has not taken a position, and because I represent the government in the Senate, I will be abstaining on the “Noah Clause.” That’s my answer to Senator Batters.

I am looking forward to the debate on the motion that Senator Plett has put forward, and I may ask to intervene after I hear more of the debate. I’m not convinced that we need to suspend, but I am open to listening. Thank you.

Senator Klyne: We have had many submissions, as many of the people around the table recall here. It’s not only submissions, but also testimony and witnesses from the zoos, the NGOs and the Jane Goodall Institute, which were highly supportive of the “Noah Clause” being included in this bill. It was contemplated. That was the green light for that.

[Translation]

Senator Carignan: Senator Klyne is treating this like a private bill. It’s not a private bill; it’s a government bill. The people who will have to interpret this law need to know the legislative intent. The person responsible for this bill is the Minister of Justice, as well as the Minister of the Environment. We haven’t heard from the ministers of Justice and Environment about anything but elephants and great apes.

Now we’re being told that the scope of the legislation will be expanded to include thousands of species. We really need to hear from one minister or the other, preferably the Minister of Justice, if possible, about an amendment of this nature so we can understand the government’s intent here.

This bill starts with the letter “S” followed by two numbers. That means it’s a government bill.

Senator Klyne is treating it like his own private bill. It’s not his private bill, and the government leader himself said, “I’ll abstain. I can’t state a position because I’m not aware of the government’s position.” What are we supposed to do?

[English]

The Chair: We will now vote on the motion, but I want to remind you that we have not yet voted on the “Noah Clause.” We have not yet voted, so we haven’t opened anything up. Senator Dalphond, you are the last witness — I’m sorry; you are the last senator to this motion.

Senator Dalphond: I don’t expect to be a witness.

The Chair: I hope not.

Senator Dalphond: I’m fearful of the questions that would be asked of me by Senator Plett.

The Chair: You’ll never be fearful of that.

Senator Dalphond: I want to say that the motion before us is to adjourn or to continue. One of the main reasons is that they would like to hear from the ministers or from the government. The Government Representative, which is Senator Gold, has said the government is open to considering amendments.

We are the Senate with the bill at the first step — not as the second step in sober second thought. We are the first chamber. The government will have the opportunity to decide what they do with the bill if it reaches the House of Commons, and they will be able to decide if they accept this amendment, or they will propose to amend it at the committee stage over there. They will do reports and many things. I feel that we should keep going and complete that process. Thank you.

Senator Plett: Senator Dalphond said the motion was to possibly adjourn. That is not the motion. The motion is to suspend. There is a big difference there. I’m not asking for this to end; I’m asking for us to do the right thing.

Senator Klyne is continually using the phrase “Jane Goodall wants this” or “Jane Goodall thinks this is good.” That’s fine; I have no issue with that. But the Jane Goodall Institute was here, and the gentleman who was here said he was not speaking on behalf of Jane Goodall and refused to answer my question. This is not about what Jane Goodall wants; this is about a bill that the government has. That is what this is about.

If we want to do the Jane Goodall act, then we need to have witnesses again appearing on the Jane Goodall act. That’s not what this is. I think what Senator Klyne is saying, chair, is just adding more fuel to what I am suggesting. He is saying that Jane Goodall and the Jane Goodall Institute want to change the scope of this bill. Then, let’s bring Jane Goodall back to listen to her, hear her arguments and decide whether we want to change the bill.

The Chair: Senators, is it your pleasure to adopt the motion?

Some Hon. Senators: Yes.

Some Hon. Senators: No.

The Chair: We will go to a roll call.

Mr. Labrosse: The Honourable Senator Jaffer?

Senator Jaffer: No.

Mr. Labrosse: The Honourable Senator Batters?

Senator Batters: Yes.

Mr. Labrosse: The Honourable Senator Boyer?

Senator Boyer: No.

Mr. Labrosse: The Honourable Senator Carignan?

Senator Carignan: Yes.

Mr. Labrosse: The Honourable Senator Clement?

Senator Clement: No.

Mr. Labrosse: The Honourable Senator Cotter?

Senator Cotter: No.

Mr. Labrosse: The Honourable Senator Dalphond?

Senator Dalphond: No.

Mr. Labrosse: The Honourable Senator Gold?

Senator Gold: No.

Mr. Labrosse: The Honourable Senator Klyne?

Senator Klyne: No.

Mr. Labrosse: The Honourable Senator Pate?

Senator Pate: No.

Mr. Labrosse: The Honourable Senator Plett?

Senator Plett: Yes.

Mr. Labrosse: The Honourable Senator Prosper?

Senator Prosper: No.

Mr. Labrosse: The Honourable Senator Simons?

Senator Simons: No.

Mr. Labrosse: The Honourable Senator Tannas?

Senator Tannas: No.

Mr. Labrosse: Yeas: 3; nays: 11; abstentions: nil.

The Chair: As such, senators, the motion is defeated. We will now continue with Senator Klyne’s amendment.

Senator Klyne, you have gone through the first clause, right?

Senator Klyne: I have. However, I need to make a correction here because I’m not promoting the Jane Goodall act here; I’m promoting Bill S-15. The amendment answers the joint request of the Jane Goodall Institute of Canada and nine of Canada’s leading animal welfare NGOs and zoos. This is in response to their request.

The Chair: Honourable senators, is it moved — Senator Plett, I have asked you three times to do it. You said you don’t want to do it.

Senator Plett: No, I didn’t say I didn’t want to do it.

The Chair: Okay, do it.

Senator Plett: My word. Why don’t you just declare the bill passed and we’ll go home?

The Chair: I asked you three times. Do the amendment.

Senator Plett: We were doing a motion, Madam Chair. You wanted the motion done as well. You voted on the motion. Now I have an amendment, Madam Chair.

The Chair: Yes, go ahead.

Senator Plett: I move the following amendment:

That the motion in amendment be amended in subparagraph (d)(ii) by adding the following after proposed subsection 445.4(2):

“(2.1) At least 180 days before making a recommendation under subsection (1), the Minister must publish the proposed order in the Canada Gazette and afford a reasonable opportunity to interested persons to make representations to the Minister with respect to the proposed order.

(2.2) Before making a recommendation under subsection (1), the Minister must consult with representatives of the zoo industry, wildlife biologists, animal care experts and provincial representatives responsible for animal welfare.

(2.3) At least 30 days before making a recommendation under subsection (1), the Minister must table before each House of Parliament a report setting out a detailed description of

(a) the Minister’s consultations under subsection (2.2); and

(b) the scientific or other evidence that supports the proposed order.

(2.4) The Minister must publish the report on the Department of the Environment website within 10 days after the day on which the report is tabled in Parliament.”

I’m proposing this subamendment to Senator Klyne’s amendment, which would require the minister to do five things. First, the minister must provide notice of intent to add additional species. This gives time for stakeholders and interested persons to engage with the minister and prevent sudden surprises to the industry. Senator Klyne will argue that giving owners advance notice will incentivize bad behaviour, such as stocking up on the animals that are about to be banned. I would argue that the incentivization does the opposite. When confronted with an announcement that a species will be banned, owners who do not meet the criteria to obtain a permit or licence are faced with the fact that their animals are about to be commercially worthless and will not be able to be moved across provincial or international borders.

One day, the animals are perfectly legal and can be held and bred without legal sanction; the next day, the owner becomes a criminal if the animals are bred. Remember that although the holding of animals currently in captivity becomes grandfathered in, the breeding of them does not. The legislation requires that:

Every person who possesses an elephant or great ape that is kept in captivity is under a legal duty to take reasonable measures to prevent the natural breeding of the elephant or great ape.

This would apply to designated animals as well. This will require immediate changes to holding facilities and ranges. Animals will need to be separated or other interventions taken to prevent breeding. Additional veterinary expenses are likely to be incurred.

Furthermore, the animal owner will need to begin expanding the prospect of whether they will qualify for a federal permit or a provincial licence to provide them with an exemption. For some, this might be an easy calculation, and for others it might take time. Either way, they will need to determine if they want to continue keeping these animals, knowing that the market for them is about to be reduced to almost zero, or if they need to find a new home for them.

Senator Tannas pointed out that if it comes to additional species being added, this legislation could easily cause far more harm to animals than help. The Toronto Zoo can only accept so many new cats. Who will take the estimated 7,000 privately owned cats in Ontario alone when the current owners decide the new red tape and the threat of facing criminal charges aren’t worth the risk?

Rather than creating an incentive to acquire more of that species, a change in legal status creates an urgent incentive for owners to divest themselves of the animals before the government shuts the door completely. We would be fools to allow the current owners a reasonable window of six months to determine their options, weigh the risks and take reasonable remedial action.

The second part of my subamendment requires the minister to consult before designating a new species under this bill. The next two parts of the amendment simply require the minister to table two reports: one on the science behind the designation of the new species; and one on the consultations that were taken in order to come to that decision.

The final part requires the reports to be published on the corresponding government website. None of these should be considered controversial.

I would urge you to support the amendment.

Senator Tannas: This is a great example of why we should share our intentions with respect to amendments. I had a chance to consider this and reflect on Senator Klyne’s amendment and the “Noah Clause.” I want to say that we’re past the odd part that we confronted ourselves with. Chair, I think you were very wise in your decision to give us all time to figure this out. Thank you for that.

I have difficulty with the main amendment. We have an act of Parliament that was presented by the government after thought and after knowing what the desire of Jane Goodall and others were — they chose this path. So we have an act of Parliament to protect elephants and great apes, and now we have this, which potentially delegates a huge amount of Parliament’s authority to cabinet.

I take a lot of comfort, actually, in what is in here. If we’re going to go ahead with this idea, it’s very clear about the consultation that needs to occur, and it gives time for people to prepare so that there isn’t some mass slaughter that happens — the unintended consequences that we may see.

It’s a bit onerous, but when we’re delegating authority to a cabinet member, I think it should be onerous. It needs to be transparent, also. I like this idea. I can think of many circumstances where this idea of the minister —

The Chair: Senator Tannas, I don’t mean to interrupt you. Forgive me. When you say “this idea,” do you mean Senator Plett’s amendment?

Senator Tannas: Yes, this idea in proposed section 445.4(2.3), where the minister is required to detail with whom they actually consulted. I think it’s a good amendment that balances the desire of committee members and others to adopt the “Noah Clause.” It provides a lot of protection for Parliament and for those affected, and it provides protection from unintended consequences. Senator Simons isn’t an expert in this, and she immediately poked a hole that nobody seemed to have thought about with respect to the fur industry. What else is out there?

Having something that steps through a process that says, “Hey, we’re thinking about this; let’s hear about it,” and making sure the minister actually does hear about it — what are the consultations — I think it is entirely responsible, if we are going to go ahead with this.

I’m going to support this, and, with this, I will support the amendment. I think it makes it stronger and represents, to me, that we — as the Senate, in our imperfect ways — sometimes find ourselves to the right answer. I think this is the right answer.

Senator Cotter: I’m in agreement with Senator Tannas’s observations.

I wanted to make only one supplementary one of my own, which I think is, if I may respectfully say so, an even stronger argument than Senator Plett made with respect to this subamendment. A designated animal being designated under this amendment criminalizes the possession of that animal. We need to take that fairly seriously. Putting somebody in a situation where they do — or may — commit a criminal offence ought to be done in a transparent way, and it ought to be done in a way in which the decision taken to criminalize that activity is executed in a careful way.

Right now, we are studying this bill to decide on the situation with respect to elephants and great apes, and their continuing possession being, in some circumstances, a criminal offence. For other creatures that are held in captivity, the folks who have concerns about that — whether they’re right or wrong — don’t get a Senate committee to argue whether A or B should happen. As a result, I think it’s incumbent upon the minister to have a process in place so that the decision is deliberate and transparent. Whether the timelines that Senator Plett proposes here are correct or not, I don’t really know, but it seems — to me — like a perfectly justifiable approach, if I may say so, to improve the amendment that he’s not that fond of.

The Chair: Senator Tannas, do you mind if I ask for one clarification? Sorry that I’m asking you this, but you said you would be comfortable supporting Senator Klyne’s amendment if this amendment went through? Is that what you said?

Senator Tannas: Yes.

The Chair: Thank you. I just wanted to make that clarification.

Senator Dalphond: I don’t want to add much to the debate except to say that, here, it refers to the Governor-in-Council reacting to an order. I think someone referred to the fact that the government could be acting through regulations, orders-in-council and all that, and that’s a different process. The regulation has to be published, so there would be prior notice and consultation. Further to that, there would be another publication and all that. There is a process. The Standing Joint Committee for the Scrutiny of Regulations could even disable the regulation.

I think what Senator Plett is trying to achieve is a similar result to provoke time — pause — as well as a way to consult and a way to bring in stakeholders’ interests and considerations, and also to adjust for the transition, if a transition is required.

It looks, to me, like a kind of elaborate way to do it. If we were just using the words “through regulations” — set of orders — maybe we would be achieving that. That being said, I’m not opposing the principle and the idea behind it, subject to seeing a copy of the exact wording, which I don’t have the benefit of reading. It seems to be read regarding proposed sections 445.4(2.1), 445.4(2.2), 445.4(2.3) — it’s in the material? I haven’t seen it, sorry. Well, then, if it’s before us, I’m okay with it.

Senator Klyne: Thank you for this.

Senators, this subamendment would impose additional administrative requirements on the government to exercise the “Noah Clause” — perhaps there’s nothing wrong with that, but it’s specifically a six-month advance Canada Gazette process, consultation requirements and reporting to Parliament. I am very interested in my colleagues’ thoughts on this. I thank Senator Tannas and Senator Cotter for theirs. However, I’m concerned about giving roadside zoos and exotic pet enthusiasts six months’ notice of the wild species that might soon be banned under a grandfathered basis. Six months’ notice could prompt certain things to transpire that we would not wish to happen.

Therefore, proceeding, I would submit for your consideration no more than 60 days. Thank you.

Senator Gold: I wonder if officials might clarify the degree to which the subamendment before us duplicates, adds to or conflicts with what is currently in place, whether it’s under the Statutory Instruments Act, the Cabinet Directive on Regulation and things like that. I know there’s consultation, publication and things like that. Help us understand what this changes, if anything, and how it would fit together with the current regime for decisions of cabinet.

Ms. Lane: Much of what you said is accurate. I think Senator Dalphond also spoke to some of the requirements under the Cabinet Directive on Regulation and the Statutory Instruments Act, which require prepublication. There are no exemptions proposed in this motion, so I would suggest they require prepublication in the Canada Gazette.

The cabinet directive requires 30 days. Some other statutes and other examples require 60 days. Again, I haven’t exhaustively searched, but I’m not familiar with the 180 days, and whether that exists in other pieces of legislation.

The additional requirement of reporting back on your consultations is something that is also required under the cabinet directive. Some departments do a What We Heard Report; others prepare as they publish in the Canada Gazette, Part II, which is the final regulation — or, in this case, it would be the final order — and they would publish sort of a summary of the stakeholder consultations and consultations with Indigenous peoples, as well as an entire Regulatory Impact Analysis Statement that sets out the economic consequences and others of the proposed regulation.

The one additional element that I see in this bill — and again, I’m not familiar with other precedents; I don’t know if my colleagues have seen any — is just the minister publishing, in addition to those regulatory consultation requirements, the additional publication in the houses of Parliament. It’s not clear on the basis of the motion to what end that report is to be published, and whether or not Parliament can respond to that.

I think those are the key differences. In essence, I think the spirit of the motion, which is around making sure that Canadians are aware of the fact that a rule might change, is taken care of by the Cabinet Directive on Regulation.

Senator Cotter: Could I ask a small supplementary to Senator Gold’s question? Are there other provisions in the Criminal Code where the cabinet can criminalize behaviour by regulation, and do these same rules apply?

Mr. Godlewski: Thank you for the question, senator.

There are certainly other Governor-in-Council processes in the Criminal Code and in the criminal law more broadly. For example — I can’t remember which senator referred to it in today’s meeting — the Controlled Drugs and Substances Act has a procedure by which drugs can be added through Governor-in-Council order to the schedules of that act.

There are other Governor-in-Council processes in the Criminal Code and the criminal law, but, to my knowledge, this would be something novel with respect to the administrative requirements that would be imposed in addition to the ones that my colleague spoke to already.

Senator Cotter: Thank you.

Senator Dalphond: In regard to what you’re referring to about the Controlled Drugs and Substances Act, is that also the case for arms? Can the Governor-in-Council add lists of guns that can be prohibited?

Ms. Lane: I think you’re probably right, Senator Dalphond, but I’m not 100% sure. However, if you’re looking for another example, I could point you to the impaired driving context where, in Bill C-46, the Governor-in-Council may add new drugs to a regulation that would make a criminal per se level for driving with certain drugs in the blood. That’s an example in the criminal law that I’m more familiar with, which creates a similar structure where there is a Governor-in-Council order. However, as my colleague indicated, it doesn’t have the administrative requirements on the minister outside of what is required already through the statutory instruments process.

Senator Dalphond: Thank you.

Senator Batters: I wanted to make a small point. A little earlier in this part of the discussion, Senator Dalphond referred to the fact that these would potentially be some onerous requirements. Then, Senator Klyne said that, yes, these would be additional administrative requirements for the government. Well, I should hope so — seriously. We’re dealing with a major difference here. We have elephants and great apes set forth in the actual bill. We’re going to have all these other species with not that same type of situation. Of course we need to have onerous and very substantial administrative elements. I’m thankful Senator Plett has brought this forward to try to prevent some really terrible examples.

I just can’t get over the fact that we’re sitting here, and we don’t even know if the justice minister and the environment minister are in favour of this amendment, and if they will accept it from the government’s point of view, because the Senate government leader says he is not taking a position on it. I’m just still stunned by that fact.

Senator Tannas: Thank you for your comparisons and so on. I’m more convinced by what Senator Cotter said and the fact that adding a species — there isn’t a python owners’ association of Canada with an office on Sparks Street that is going to take this as their signal to engage. We would be putting in a criminal act. Some large subset of people are already doing it, right? And now we’re going to make it illegal.

I am at peace with the idea of a lengthier time frame, and one where there is accountability, because if somebody gets charged, and they say they didn’t know about it, having had transparency all the way through to Parliament about what efforts were made through consultation, and whom they heard from, will be really important, I think. We’re talking about a lot of average people who aren’t going to have their ear to Ottawa. It will take a while for the information that this is coming to get to them. Therefore, I think it deserves to be different.

[Translation]

Senator Carignan: I listen to people. I heard your answer about consulting Indigenous peoples. Shouldn’t we add that to the consultation? Do you think the minister or cabinet should do it pursuant to another law?

[English]

Ms. Lane: Whenever there is the potential for infringement of Indigenous or Aboriginal treaty rights, the Government of Canada has an obligation to consult and, where possible, accommodate those rights. That is a constitutional obligation. With respect to whether or not it’s over and above in the context that’s separate from the duty to consult, that is a question for the Senate as to whether or not you would want to include Indigenous peoples in that list.

[Translation]

Senator Carignan: Maybe we should add Indigenous peoples. With your consent, I’ll move an amendment to the subamendment to paragraph 445.4(2.2).

The Chair: The clerk told me a subamendment can’t be moved.

Senator Carignan: Why?

The Chair: I’m sorry, that’s what I was told. I was told we had to —

[English]

— defeat this amendment and then you bring it in.

Senator Carignan: I have to defeat —

The Chair: You can’t amend a subamendment. That’s what he is telling me.

Senator Plett: I have a question on that. If we pass the amendment, would he still be able to bring this amendment forward?

Senator Prosper: I had a question for Senator Klyne. Maybe it can wait until he comes back. It’s related to the subamendment, so I hate to speak to this while he is out of the room. It relates to his point of concern with respect to the timeline. He stated some circumstances that might exist as a result of a longer timeline. I just wanted to get clarity on what he was thinking in that regard.

The Chair: We’ve lost two people now. So we’ll suspend for five minutes — yes, Senator Simons?

Senator Simons: I can’t speak to what Senator Klyne had in mind, Senator Prosper, but I imagine it’s people who might take their lion and let it loose in the woods, or shoot it in the head. I’m not saying that’s what people are likely to do, but you could certainly imagine a hypothetical situation where, if somebody found out they were going to be criminalized for owning a jaguar — not the car — they might just do a “born free” in the woods of Georgian Bay, which might have unfortunate consequences.

The Chair: Colleagues, Senator Klyne is here. Senator Klyne, can you answer a question? Senator Prosper, please repeat your question.

Senator Prosper: I just had a question with respect to the subamendment that was being proposed by Senator Plett.

One of the comments that I heard you say in response was you suggested a shorter timeline than the one proposed within the subamendment, and there were specific reasons. You said there could be some situations that may exist with a longer notice. Why the shorter timeline, I guess, is the crux of it?

Senator Klyne: The shorter timeline was just the idea. I was focusing more on the exotic pets.

Senator Prosper: You suggested a number of days as opposed to the ones that were proposed, and there were reasons for that.

Senator Klyne: On a six-month level.

Senator Prosper: Yes.

Senator Klyne: That just gave too much time to those, for instance, with exotic pets. I made that in reference to roadside zoos and exotic pets. I thought that was too much for that class.

The Chair: Senators, we are going to move to Senator Plett’s amendment. Senators, it is moved by Senator Plett:

That the motion in amendment be further amended in clause 1, on page 3, at line 20.

Is it your pleasure, honourable senators, to adopt the subamendment?

Hon. Senators: Agreed.

The Chair: Senators, I don’t think we need a roll call.

An Hon. Senator: No.

Senator Gold: Let the record show that I’m abstaining.

Senator Carignan: Could I move my subamendment?

[Translation]

The Chair: Give me a moment, please.

[English]

Senators, is everyone agreeing? Okay.

Senator Carignan has a sub-subamendment, please.

[Translation]

Senator Carignan: Sorry, I’m just making it up on the fly. In clause 445.4(2.2), after the words “animal care expert,” I would add the words “representatives of Indigenous peoples.” I don’t know if I have the right wording. You can fix it, but you see what I’m getting at.

[English]

Senator Boyer: What I wanted to say to you is that regarding representatives of Indigenous people, we need to have representatives of section 35 of the Constitution Act, 1982, to make it perfectly clear that they have those rights.

Senator Carignan: We could use those words.

The Chair: Senator Carignan, the law clerk has to prepare the amendment, and since it’s the right time, we’ll have it here tomorrow, and we will vote.

[Translation]

Don’t worry. Senator Plett will be here.

[English]

Senator Carignan: You will move it?

Senator Plett: I’ll move it.

Senator Carignan: You will represent me fairly and properly?

Senator Plett: I’ll ensure your replacement will vote wisely.

Senator Cotter: This is a valuable whatever it is in terms of the level of amendments, but it strikes me that we should say that since we’re compelling the minister to consult, it ought to be where it’s relevant. On jaguars, is that a question for Indigenous people to address and be required to address? I don’t know.

The Chair: Those are things that we can put to the clerk.

Senator Cotter: It’s just an observation for the assistance of the language.

The Chair: Senators, you have been extremely patient. I appreciate that. We will continue tomorrow, and hopefully this will move faster. Thank you very much.

To the officials, thank you very much for all your input. It has been very helpful, and I hope you will come back tomorrow.

(The committee adjourned.)