THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, May 23, 2024
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:48 a.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.
[English]
The Chair: Good morning, honourable senators. My name is Mobina Jaffer, a senator from British Columbia and chair of the committee. I now invite my colleagues to introduce themselves.
Senator Oh: Victor Oh, Ontario.
Senator Plett: Senator Don Plett, Landmark, Manitoba.
[Translation]
Senator Dalphond: Pierre Dalphond from the De Lorimier division of Quebec.
[English]
Senator Klyne: Good morning. Marty Klyne. I’m a senator from Saskatchewan, Treaty 4 territory.
Senator Prosper: P. J. Prosper, Nova Scotia, Mi’kma’ki territory.
Senator Simons: Senator Paula Simons, Alberta, Treaty 6 territory.
Senator Pate: Kim Pate. I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabe.
Senator Cotter: Brent Cotter, senator for Saskatchewan. Good morning.
Senator Boyer: Yvonne Boyer, Ontario.
[Translation]
Senator Clement: Bernadette Clement from Ontario.
Senator Gold: Marc Gold from Quebec.
[English]
Senator Tannas: Scott Tannas, Alberta.
The Chair: Senator Batters is the deputy chair of the committee. We also have with us the same officials as yesterday.
Senators, do we still need the microphone advice, or can I skip that? We are all the same participants as yesterday.
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.
I am very pleased that the officials are here. Thank you for your patience with us. From the Department of Justice Canada, we have with us Joanna Wells, Senior Counsel, Criminal Law Policy Section; and Aleksander Godlewski, Counsel, Criminal Law Policy Section. From Environment and Climate Change Canada, or ECCC, we have with us Basile van Havre, Director General, Canadian Wildlife Service; and Stephanie Lane, Executive Director, Legislative Governance. We thank you again for joining us.
Senators, we are resuming debate on the new subamendment proposed by Senator Carignan before yesterday’s adjournment. A copy of this subamendment was drafted by the Law Clerk and circulated with members. It is DNP-SUB-MK-S15-1-1-20a. I understand that Senator Plett will formally propose this subamendment. Senator Plett, you have the floor.
Senator Plett: Thank you, chair. As the chair pointed out, it has been circulated. Senator Dalphond, I trust you received it as well today.
Senator Dalphond: Yes, I have it in my hand. Thank you.
Senator Plett: That is great.
As was suggested by Senator Carignan yesterday, the amendment that I will present requires the minister to consult with Indigenous representatives before adding to Bill S-15 a species of an animal native to Canada.
The motion reads:
That the motion in amendment be amended in subparagraph (d)(ii)
(a) by adding the following after proposed subsection 445.4(2.2), added by previous decision of the committee:
“(2.21) Before making a recommendation under subsection (1) to designate a species of animal that is native to Canada, the Minister must also consult with representatives of persons or groups that hold an Aboriginal or treaty right recognized and affirmed by section 35 of the Constitution Act, 1982.”;
(b) by replacing “subsection (2.2)” with “subsections (2.2) and (2.21)” in the proposed paragraph 445.4(2.3)(b), added by previous decision of the committee.
That is the amendment. It speaks for itself. Senator Carignan already spoke to it briefly. It further ensures that the government will consult properly before all of a sudden adding certain species. Yesterday, Senator Klyne indicated that farmers should be able to breathe easy for now. We saw from the Fur Institute of Canada that they aren’t breathing easy, so I don’t think anybody should. This just further clarifies and ensures something. With that, I would ask for your support on the amendment.
The Chair: Is there anyone on debate? Does anyone want to speak to this? No.
Honourable senators, it is moved by Senator Plett that the motion in amendment be further amended on clause 1, page 1, on line 20.
Is it your pleasure, honourable senators, to adopt the subamendment?
Hon. Senators: Agreed.
The Chair: Agreed. We have all agreed, senators.
We will now move on to the main amendment.
The main amendment is DNP-SUB-MK-S15-1-1-20. Senator Klyne, you already spoke to it. Senators, do we need more debate on it?
Senator Plett: I certainly wish to debate it more, yes.
The Chair: Senator Klyne, do you want to speak further before Senator Plett?
Senator Klyne: I have read it into the report and I have spoken to it.
Senator Plett: I have a few additional comments on Senator Klyne’s amendment.
Colleagues, first, I support and have always supported raising the standards for roadside zoos, where the real problems with animal welfare are found. I have expressed repeatedly my concern is that instead of dealing with the real issue, we are merely pretending to achieve something by focusing on accredited zoos. Senator Klyne’s amendment does not change that.
The government could have just adopted Bill S-241. They did not. They substantially narrowed the scope for reasons that they made clear. I will not repeat them today, although I would like to. I will not waste the time. This amendment will now broaden that scope, as confirmed yesterday by Ms. Lane from ECCC, who said, when answering a question about whether this would expand the scope of the bill, “I would say it does change the scope of the bill . . .”
Colleagues, my point of order was defeated without the chair taking even a 5- or 10-minute recess to reflect or consult. She gave no rationale for her ruling, other than to allow debate to continue. She had clearly decided on the point of order before it was even made. She simply moved on to debate, overruling what the government’s officials said.
Senator Dalphond: A point of order. The Rules of the Senate apply to committees. The Rules of the Senate are clear that once a decision has been made by the Speaker, it cannot be challenged. If Senator Plett wants to address an amendment or the content of the motion, he should proceed. However, now he is trying to attack the chair’s decision from yesterday, which was confirmed by the committee, so I think he is out of order. Thank you.
The Chair: Senator, do you have anything to say to this amendment?
Senator Plett: Yes, I have a lot to say, Madam Chair. This is a televised committee. Let’s allow people who are watching us on television, who are concerned about this bill, to hear what I have to say and the rationale for this.
I have the right, Madam Chair, to debate this. Senator Dalphond and other committee members do not have the right to tell me what words I can use. This is a Noah Clause. If I want to get my Bible from my office upstairs and recite the entire Book of Noah here, I am within my right to do so. He calls it the Noah Clause. I am constantly being obstructed. If Senator Dalphond is so sure that he is doing the right thing, he should have no problem with hearing me out.
Yesterday, we had a government official saying one thing and the chair saying another. I have the right, Madam Chair, to explain to the people who are impacted by this bill what it does. I will go into it.
Senator Simons raised a question yesterday about the Fur Institute. I will mention that because it clearly impacts the vote on this bill. If I talk about what I believe, Madam Chair, with respect, was a bad ruling by you, that may or may not reflect how members will vote on the amendment. It may not, but I have the right to express myself. I humbly ask that you give me the right. I’m not going to be here for an hour talking about this. I will be here for five or six minutes talking about it.
The Chair: I will give you five minutes.
Senator Plett: You will give me five minutes to debate. How can you limit debate on something of this importance?
The Chair: Debate the amendment, then.
Senator Plett: Thank you. I will debate. Regrettably, the subamendment I made that was approved yesterday does not save Senator Klyne’s amendment. It was out of scope, as drafted, and it remains so with my amendment.
Voting in favour of this amendment will not mean that it magically becomes in scope. It will mean this committee will have expanded the scope of the legislation, something which is contrary to the rules of both the Senate and the House of Commons.
Colleagues, this is not something we should take lightly, bulldoze through and cut off debate around. If this amendment is passed, it will engage many stakeholders who have not been consulted.
I heard from one of those stakeholders this morning. Doug Chiasson from the Fur Institute of Canada emailed my office, concerned. He said:
The introduction of the Noah Clause is deeply concerning to the Fur Institute of Canada and the fur sector. The introduction of this amendment after the opportunity for witnesses to testify to the committee has left us unable to explain the impacts this clause would have on animal agriculture in Canada, including fur farming. As Bill S-15 in its original form had a narrow focus on great apes and elephants, so we are not implicated and as such did not seek to testify or submit a brief to this committee —
— which would be very similar to every farmer in Canada.
We implore the committee to not pass this amendment as it is clearly a backdoor attempt to ban fur farming. If honourable senators are intent to debate this amendment further, we would ask that you first seek expert testimony from affected stakeholders.
Colleagues, Mr. Chiasson and many other stakeholders will not be afforded the opportunity to provide testimony on this legislation, because my motion requesting the opportunity for them and others to do so was defeated yesterday. That, in itself, demonstrates that the scope of the bill has been enlarged by this amendment and it should thus be defeated.
However, if the scope of the legislation is expanded as per this amendment, it will then engage the question of whether a Royal Recommendation is required. I asked the officials yesterday what that would entail. Bills originating in the Senate, whether private members’ bills or government bills, cannot impose spending requirements upon the Crown. By broadening the scope of this legislation, this amendment will do exactly that.
Frankly, I am surprised that the sponsor of a government bill is prepared to put this legislation at risk in this way. I am surprised that the Leader of the Government in the Senate will not listen to the words of his own officials. I am surprised by any senator who will not listen and say, “Let’s give this sober second thought.”
At one point in one of the committee meetings, Senator Cotter suggested, “We are the chamber of sober second thought, and we should thus maybe not kill legislation.” I do not want to put words in his mouth but it was something of that nature. This is not sober second thought. This is first thought. We have every right to do whatever we want with this bill. This is where this bill originated.
In closing, Madam Chair and people watching on television, I am saddened by this. I am neither a prophet nor the son of a prophet, but for those people watching on television today, I assure you I know the outcome of the vote on this amendment before it is even taken.
With that, Madam Chair, I conclude my remarks on this.
The Chair: Thank you.
Senator Gold: I have nothing to add.
The Chair: Senator Batters, do you wish to speak?
Senator Batters: There is apparently still no position from the government —
Senator Gold: Senator Batters, with your permission, if you do not mind, I have one sentence to say in response: I stated my position on this amendment on two previous occasions. You know what my position is.
Senator Batters: It is that you are not taking a position.
Senator Gold: It is that the government has not taken a position on this amendment. Therefore, I will be abstaining.
Senator Plett: You took a position when you voted with the chair.
Senator Gold: I said that I would defer to the decision of the chair. She made a decision, and I voted to support it.
Senator Batters: The position of the government, as stated, is that the government is not taking a position on a massive amendment from the government sponsor on a government bill, which basically blows this bill apart as well as all the committee witnesses that we had.
First, on this, I have a few questions for the sponsor, Senator Klyne. Then I have some comments. I want to go back to what was asked of Senator Klyne yesterday by Senator Boyer. On a few occasions, she asked him, “. . . did you work with the minister’s office on these amendments?” Senator Klyne initially did not answer the question, so Senator Boyer asked again, “Did you work with the minister’s office when you were putting all this together?” Senator Klyne responded, “Senator Sinclair led this.”
I want to understand this. Does that mean that Senator Sinclair led this when he was still a senator and had his private member’s bill on this expanded issue, or do you mean in the recent past when Bill S-15 was happening? Does that mean that Senator Sinclair worked with the minister’s office, or did you and your team work with the minister’s office on this major Noah Clause amendment?
Senator Klyne: The reference to this, or the premise of it, was my comment that my office and I had worked on this for a few years leading up to the Noah Clause. In terms of creating it, that was initiated by the Honourable Murray Sinclair in the days prior. He has not had any consultation on this since.
Senator Batters: My question is this: Did you or your team work with the minister’s office on the Noah Clause with respect to Bill S-15?
Senator Klyne: We did a lot of the work internally, and if we were —
Senator Batters: Yes or no.
Senator Klyne: If we were uncertain of something, we would have tried to validate it through someone from the minister’s office. But we did not work directly with anyone there.
Senator Batters: You probably would have —
Senator Klyne: If there were something that we were not certain of. This has been ongoing for a while now.
Senator Batters: Does that mean “yes” or “no”? Did you or your team — not just you, but your team also — work with the minister’s office on this Noah Clause amendment?
Senator Klyne: No. It is contrived from earlier days, and we continued to refine it. It has been asked for by the Jane Goodall Institute and —
Senator Batters: I’m not asking about that; I’m asking who worked with the minister’s office on it.
Now I have a few other questions dealing particularly with amendment.
First, I wonder if this is a typo or a word I’m not familiar with. At the bottom of your motion, going back to S-15-1-1-20, at the bottom of my page, it says “page 10 of 28.” Do you see what I am talking about? It is the sub (ii) part which says “by adding the following after line 5 . . .” Then, at the bottom of that page, (2)(iii) says “the evidence of harm to animals of the species in captivity, including stereotypies . . .” Is that word, “stereotypies,” correct, or is that a typo? I’m not familiar with that word. I wondered if it meant to say “stereotypes” but maybe that is a scientific word that I do not know.
Senator Klyne: Is there a question there?
Senator Batters: Is that the correct word — “stereotypies” with the “-ies” — or is it supposed to be “stereotypes”? If it is “stereotypies,” what does that mean? Is that a scientific word?
Senator Klyne: Yes, I will call it a scientific word, but if you look it up, it —
Senator Batters: If I look it up? It is your amendment.
Senator Klyne: If you were to. We heard from a witness that it refers to an abnormally repetitive behaviour from a species of animal.
Senator Batters: So is it spelled correctly and not a typo? It’s not supposed to be “stereotypes” then.
Senator Klyne: That’s correct. The reference that the witness gave us was tigers pacing. That’s an abnormal behaviour.
Senator Batters: At the end of your amendment in (3), “The Governor in Council —” meaning cabinet “— may not designate a species of animal under this section if the species is used in farming for food purposes in Canada.” That part of the definition, what you have here, is “. . . if the species is used in farming for food purposes in Canada.”
Where did that part of the definition come from? That is basically the only type of exemption that you have in here. I’m wondering where you got that definition from. Is it from another act? How limiting is it? Is it something that’s well defined in law, or will we have a bunch of cases where some people might think that applies to certain animals and others might think that it does not? Obviously, that’s an extremely important definition.
Senator Klyne: That’s largely in response to consultation with other stakeholders, but primarily the agriculture sector and the cattlemen’s associations and others.
Senator Batters: This is from the cattlemen’s associations?
Senator Klyne: We included that to reflect that we heard what you said.
Senator Batters: But where did the wording of this definition come from? That’s obviously an extremely important definition. Is it encompassing enough or does it need to be defined to ensure that it legally applies to the type of animals that we would all — including the cattlemen’s associations — hopefully expect it to?
Senator Klyne: It was specifically developed to explicitly exclude game farming. We developed this with the Senate Law Clerk’s office.
Senator Batters: Is it from another act? Where did they come up with that definition? Do the officials know? Is that language used in any other act in Canadian law? Where did that wording come from and what’s the opinion —
Senator Klyne: It’s not from Canadian law. It’s probably a natural common language of reference. So it’s to — again, the answer —
Senator Batters: To put in the Criminal Code. Could I get the Department of Justice officials’ opinion about the wording and whether that will be a sufficiently rigorous definition to enable having this in the Criminal Code of Canada? I would like to hear a legal opinion on it.
Aleksander Godlewski, Counsel, Criminal Law Policy Section, Department of Justice Canada: Thank you, senator. To your question about sufficient definition in the Criminal Code, it’s a good question, because clarity is always important when we’re talking about criminal consequences, as you know. There is an interpretive function that courts play, as you also know, in sussing out the exact contours of legal meaning. I can’t say definitively what the courts would say, but from my perspective, if I’m reading this correctly, it indicates farming for food purposes. If there’s a question about farming for other purposes, that might be something for the committee to consider. I think the meaning, in terms of farming for food purposes, is clear. It is open to the committee to consider whether there are other kinds of conduct that should be captured or not. That would be my answer.
Senator Batters: This definition does not come from, as far as you’re aware, any other Canadian law?
Mr. Godlewski: I’ll let my colleague jump in on other Canadian laws, but I’m not familiar with it from the Criminal Code.
Stephanie Lane, Executive Director, Legislative Governance, Environment and Climate Change Canada: We haven’t seen this language in other statutes. I note that this provision speaks to a power that the Governor-in-Council, or GIC, has. It’s essentially creating a rule for the Governor-in-Council saying that the GIC or cabinet cannot add a species if it is used in farming for food purposes. As we discussed yesterday, there is a consultative process associated with any regulatory proposal such as this. If there were concerns about a species, whether it meets that definition or not, we would typically hear about that in consultation as well.
Senator Batters: When you say “GIC,” just so everyone watching this understands, that means the federal cabinet — the ministers, not Parliament. What this subclause does is provide an exemption for that very limited purpose. Otherwise, potentially with almost no other exceptions, all other types of animals, with very few exceptions — possessing them, et cetera — could be subject to the Criminal Code of Canada.
This is not just a small subclause which opens things up for consultation. If it doesn’t fall within the use of farming for food purposes — however that is defined, because we clearly don’t have anything and will now potentially rely on a court to determine it. We will potentially have a government bill, which has this massive definition, with very major consequences. We won’t have the ability to have witnesses tell us what that would mean or how that could impact them. Then we could have people who are subject to criminal prosecution because they’re not following the law. It’s really concerning.
I appreciate that you provided the answer that you haven’t seen this type of definition before. To me, this entire massive Noah Clause amendment shows the severe downside of proceeding with originating government “S” bills in the Senate. We had a very limited bill that applied to, I think, 50 animals — great apes and elephants — when we started out on this journey with Bill S-15. Senator Klyne had a much more expansive private member’s bill that had been active in the Senate for quite some time but not dealt with at a committee previously. He declined to proceed with and withdrew that bill, and instead the government went forward with a very limited bill. Then, at clause by clause — the last stage of a committee — we have not been able to hear from any witnesses about the impact of this; now we have this massive amendment that has potentially major implications for so many people in Canada and a huge part of our economy as well.
As Senator Plett said, this could have significant ramifications regarding Royal Recommendation if there are massive cost implications here. That’s not allowed for a bill originating in the Senate, and that’s what we have here.
There have been many times recently when independent senators have talked about how great it is in the Senate that we have so many more amendments coming. Well, here’s one, and this is not great at all for anyone in Canada.
Senator Dalphond: I have two brief comments. First, I want to refer to page 221 of the Senate Procedure in Practice:
According to parliamentary custom and tradition, it is not appropriate to reflect on past rulings or to call them into question once a decision is rendered and any related appeal decided by the Senate.
I want those who are listening to understand that we are not operating according to traditions and usual practices this morning.
Second, we should go back to normal practices, where we debate the amendment. It’s been debated. I’m ready to vote. Some people find it too broad or surprising and don’t want to support it. Vote against it. If you want to support it, you vote for it, and we move on to another amendment.
Senator Plett: I have a question for Senator Klyne, and one very brief comment.
The Chair: I’ll put you on the list.
Senator Prosper: I’m not going to proceed with my question because it relates to a matter that was already decided upon. I’ll withdraw.
Senator Klyne: I have two things regarding this amendment. First, after I made the motion, I explained it and what it entailed. I also already spoke to the scope reference in terms of a point of order around scope. I explained fully about that.
Through both of those, I reiterated that what you’ve heard in the Noah Clause was already read into second reading through me, and also in my descriptions of the motion I was making, but also its scope — it’s referencing that.
I believe we have worked with the Law Clerk sufficiently on the creation of the Noah Clause and any other amendments we were considering. I could read them all into the record if you wish, but as a final comment, I would add that the purpose of this amendment is to prevent animal cruelty and to protect public safety. It will change nothing at Royal Assent. However, it will create a pathway of hope, with robust safeguards in place for species like big cats, bears and primates.
Senator Plett: I have one question for Senator Klyne, which is a follow-up to what Senator Batters was trying to get at.
At the briefing I had with government officials, I asked why they didn’t take Bill S-241. I was led to believe they were simply not prepared to go to that length. I was told that we did this because this is as far as the government, at this point, is prepared to go. That was at my critic’s briefing.
Senator Klyne, you have fudged about whether you worked with the government on it. You basically took what Senator Sinclair had and brought that to us. My direct question to you is this: Did you or did you not run this amendment by the minister’s office? Did they or did they not sign off on it, encourage you or discourage you from bringing this amendment forward?
Please answer those questions clearly. If you didn’t, just say you didn’t.
Senator Klyne: We worked with the Law Clerk’s office substantially —
Senator Plett: That was not my question, Senator Klyne. Did you run this by the minister’s office?
Senator Klyne: We didn’t run it by looking for encouragement or discouragement, and we didn’t receive either, but we did work with the Law Clerk’s office. We made sure that if it had to be bounced by a minister — I don’t know which minister it would have been — we would have maybe talked to their office, not the minister specifically. But largely, it was working through the Law Clerk’s office and vetting it through that route.
Senator Plett: I have one question for the officials. Does this amendment mean that if it is used in farming for food purposes in another country — for example, for consumption in another country — then it would be not be captured by this?
Mr. Godlewski: My reading of the amendment, if I’m looking at subparagraph (iii), is that if there is a species that is being used for farming for food purposes in Canada, it can’t be designated by the Governor-in-Council. That’s what I would read it to mean.
Senator Plett: I have a final comment, Madam Chair, and then I’ll leave it alone.
Senator Gold has said numerous times that the government doesn’t have a position on this, so I’m not sure how he’s going to vote or whether he’s going to vote.
For the record, the government does have a position on this. Government officials said this is beyond scope. That means the government has a position on this. So how can Senator Gold say that when the officials are sitting right here beside us, right in front of Senator Gold? They say this broadens the scope, and Senator Gold says the government doesn’t have a position.
That’s just a comment. It doesn’t require a reply, although I’m sure Senator Gold is anxious to reply to it; it doesn’t really matter. The government does have a position. They indicated their position.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: We’ll have a roll call vote.
Vincent Labrosse, Clerk of the Committee: The Honourable Senator Jaffer?
Senator Jaffer: Yes.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: No.
Mr. Labrosse: The Honourable Senator Boyer?
Senator Boyer: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: Yes.
Mr. Labrosse: The Honourable Senator Cotter?
Senator Cotter: Yes.
Mr. Labrosse: The Honourable Senator Dalphond?
Senator Dalphond: Yes.
Mr. Labrosse: The Honourable Senator Gold, P.C.?
Senator Gold: Abstain.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: Yes.
Mr. Labrosse: The Honourable Senator Oh?
Senator Oh: No.
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: Abstain.
Mr. Labrosse: The Honourable Senator Tannas?
Senator Tannas: Yes.
Mr. Labrosse: Yeas, nine; nays, three; abstentions, two.
The Chair: Senators, I declare this motion in amendment to be carried.
We’ll now go on to the next amendment, BC-S15-1-2-8, Senator Clement’s amendment. It is clause 1, page 2, at line 8.
[Translation]
Senator Clement: Colleagues, I’m going to present my amendment in French, and I’ll read parts of the testimony in English.
I propose:
That Bill S-15 be amended in clause 1, on page 2, by replacing line 8 with the following:
“ment in a performance or for conveyance.”.
Colleagues, this amendment would prohibit the use of an animal as a means of transport, while at the same time banning shows for entertainment purposes.
The intent is to explicitly ban elephant rides in Canada. The Canadian Association of Zoos and Aquariums, or CAZA, banned elephant rides in 2021, subject to voluntary compliance which may impact accreditation.
This follows an elephant attack that took place at African Lion Safari in 2019 during an elephant ride, which resulted in serious injuries to a trainer.
However, the practice remains legal in Canada. There is no legal guarantee that paid elephant rides for the public will not resume in the future. There is no legal guarantee or deterrent against elephant rides in private settings, as in the case of African Lion Safari staff.
We heard testimony on this subject, particularly on May 2.
[English]
It was Gary Dewar, Director of Arts, Heritage and Nature Experiences, City of Edmonton, Edmonton Valley Zoo. He was responding to a question from Senator Sorensen about prohibiting the use of elephants for rides and in performances for entertainment. Canada’s Accredited Zoos and Aquariums, or CAZA, had opposed the bill; however, they did suggest that the use of elephants in rides and performances should be prohibited. She asked whether this should remain legal in Canada. Mr. Dewar answered that the question:
. . . was with respect to entertainment. I can assure you that it’s a CAZA standard that forbids the opportunity to offer elephant rides and things of that nature for entertainment purposes. That is outlawed. There were changes made over the years, and certainly that is the case in our institution. It’s also the case at African Lion Safari. The use of elephants for entertainment purposes is forbidden.
[Translation]
Therefore, with this amendment, Canadian federal law can achieve the desired result in terms of injury prevention, negative training practices, and any exploitation or degradation of elephants that may be associated with elephant rides.
This ban may also send a message to comparable jurisdictions, such as that of the United States.
I also note that this measure was included in the two previous versions of the bill. That’s why I support and propose this amendment.
[English]
The Chair: I see that no one else is wanting to speak — Senator Plett, I didn’t see your hand.
Senator Plett: I was waiting for Senator Clement to finish. I’m not going to sit here with my hand up while she is speaking.
The Chair: Had you had your hand up, I would have put you on the list, Senator Plett.
Senator Plett: First, by that argument, we shouldn’t allow horse rides because people might get injured. That is not why I’m opposing this, however. This is completely redundant and unnecessary.
In a statement on this bill, the minister clearly noted that the prohibition covered elephant rides, so we are amending something that does not need to be amended. The prohibition is already there. This amendment is redundant.
Senator Gold: The government does have a position on this amendment, as it does on a few others. The government supports this amendment.
Senator Batters: I would like to ask Senator Clement what this does. It already says in that part of the bill “. . . for entertainment in a performance . . . .” Some of the arguments that you are making, relaying different things from witnesses, specifically talked about the entertainment. Entertainment, of course, could include these rides, which is, I think, what you are trying to get at. It sounds like, from the minister, they believe the term “entertainment” already encapsulates that. What you are proposing to add is “. . . for conveyance.”
Why do you think that the entertainment element already in that particular portion is insufficient and “. . . for conveyance” is necessary to include?
Senator Clement: Thank you for the question. It is for clarity purposes and to be explicit. In response, I want to quote Kaitlyn Mitchell, Director of Legal Advocacy at Animal Justice, who testified at our committee on April 18. She said:
Finally, we ask you to add clarifying language to ensure that the bill’s prohibition on using elephants, great apes and, hopefully, big cats in performances for entertainment also includes a prohibition on elephant rides and the use of animals like tiger cubs as selfie props. Activities such as these put vulnerable animals at risk and send a dangerous message to children and others that exploiting animals for entertainment is acceptable.
Senator Batters: With the major amendment that was just passed by this committee, this particular part no longer just mentions elephants and great apes; it also says “. . . or designated animals.” Potentially, it would be applicable to these designated animals, which could now encompass thousands of animals. It would then be for entertainment in a performance or a conveyance. Couldn’t it potentially also include things like horses and other types of animals? A lot of people go on horseback rides.
Senator Clement: I’m speaking to elephant rides in particular.
Senator Batters: But this bill has now been amended by this committee, and so it now includes the phrase “. . . or designated animal.” Many of these clauses incorporated that phrasing. Does that give you concern? Do you want to limit it because you are concerned about elephant rides? Are you open to confining it to elephant rides, or are you okay with having “designated animals” be all of these other animals that could be included in this now?
Senator Clement: My amendment here is strictly on elephant rides and based on the testimony that we have heard to date at committee.
Senator Klyne: The whole scope of the bill within the spirit of Senator Clement’s motion — and you will hear other motions — is the scope of captive wild animals in zoos. It is not the Wild West. It is not the Calgary Stampede. It is captive wild animals.
The Chair: Is it your pleasure, honourable senators, to adopt the notion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: We’ll have a roll call vote.
Mr. Labrosse: The Honourable Senator Jaffer?
Senator Jaffer: Yes.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: No.
Mr. Labrosse: The Honourable Senator Boyer?
Senator Boyer: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: Yes.
Mr. Labrosse: The Honourable Senator Cotter?
Senator Cotter: Yes.
Mr. Labrosse: The Honourable Senator Dalphond?
Senator Dalphond: Yes.
Mr. Labrosse: The Honourable Senator Gold, P.C.?
Senator Gold: Yes.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: Yes.
Mr. Labrosse: The Honourable Senator Oh?
Senator Oh: 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: Yes.
Mr. Labrosse: The Honourable Senator Tannas?
Senator Tannas: Abstain.
Mr. Labrosse: Yeas, 10; nays, 3; abstentions, 1.
The Chair: Senators, I declare the motion in amendment carried.
We will now go to the next amendment, BC-S15-1-2-38.
[Translation]
Senator Clement: Colleagues, I propose:
That Bill S-15 be amended in clause 1,
(a) on page 2, by replacing line 38 with the following:
“connection with a scientific research program for conservation purposes;”;
(b) on page 3,
(i) by replacing line 17 with the following:
“search program for conservation purposes; or”,
(ii) by replacing line 29 with the following:
“search program for conservation purposes; or”,
(iii) by replacing line 38 with the following:
“for conservation purposes or in a conservation program.”.
Honourable senators, this amendment is really about linking scientific research to conservation. Currently, under the Criminal Code section of the bill, new captivity or breeding may be authorized for one of three purposes: best interest, conservation, or scientific research.
The Jane Goodall Institute of Canada and nine leading Canadian animal welfare associations have expressed concern that this latest potential area of authorization — scientific research — is too broad.
As drafted, the fear is that the wording could potentially authorize, for example, the breeding of elephants for scientific research purposes, in cases where such research would not make a direct or substantial contribution to the survival of the species or where keeping the species concerned in captivity is not ethically justified.
[English]
We heard a lot of testimony on this.
I will start with Kaitlyn Mitchell, Director of Legal Advocacy at Animal Justice:
The third amendment that I ask you to consider is tightening the language in the bill around permits issued for scientific research and conservation. I worked extensively on the implementation of Bill S-203, which bans the captivity of whales and dolphins in Canada. As that process has shown, and as this committee has likely observed, facilities keeping animals commonly claim that they are conducting highly valuable research even when the research is not meaningfully benefiting wild populations. Bill S-15 must be clear that permits will be issued only for scientifically justified research that supports the conservation of wild populations. Again, Canada’s leading zoos are in agreement that this amendment is necessary.
On April 2, 2024, we have a letter signed by Animal Justice, Toronto Zoo, Assiniboine Park Conservancy, Wilder Institute/Calgary Zoo, Humane Canada, Humane Society International, World Animal Protection, Zoocheck, Granby Zoo and the Jane Goodall Institute. They say:
We also believe the public interest would be better served by clearly defining “conservation science” as referenced in the Bill. The intent of the bill is to end the breeding of legislated species unless there’s a conservation benefit but this needs to be defined. Conservation science and research work being done with non-domestic animal species in human care must clearly connect to improving the long-term viability of species in the wild. Most are seeing significant declines in populations; many are threatened or nearly extinct in their traditional ecosystems. In this world with rapidly changing human development, habitat loss and climate, they face a very dim or potentially a non-existent future.
[Translation]
The purpose of this amendment is to make it very clear that when we talk about scientific research, we are talking about conservation.
[English]
Senator Gold: This is one of those upon which the government has not yet landed on a position. Respecting the work of the committee, I will be abstaining on this.
The Chair: Does anyone else wish to speak on it?
Senator Cotter: I will abstain with respect to this amendment. I fully support it in the context of the bill prior to its amendment. When one thinks about it, the sentiment is strong in that regard.
The difficulty right now — and we have covered this territory; Senator Plett has articulated it to some extent already — is we don’t quite know which animals might fit into the category of “designated animals.” While we generally think about animals kept in zoos and in captivity for those purposes, a significant number of what I will call “wild animals” are kept in captivity for scientific research purposes not connected to conservation.
I regularly visit the Vaccine and Infectious Disease Organization, or VIDO, a research centre in Saskatoon significantly funded by the private sector and governments that conducts critically important research. It is difficult to say this, but they do so by using wild animals kept in captivity in order to discover potential ways to constrain or respond to pandemic viruses. Without knowing today whether some such animal might be designated under this legislation for protection, I worry about the ways in which that could circumscribe the quality of that research.
I recognize the sentiment of it and support it, but I worry. I am confident that the minister and the process we have put in place would be attentive to those kinds of questions in terms of designating animals, but it creates an awkward trade-off, if I might call it that. At present, I’m more comfortable abstaining on this point. Thank you.
Senator Plett: For all of the reasons that Senator Cotter pointed out, I will be voting against the amendment. I’m surprised — Senator Cotter made a great argument for voting against it, yet is abstaining. I find that strange.
The research is clearly part of the bill. That was the intent of the bill. It is being expanded with the conservation aspect of it. Thank you, Senator Cotter, for the argument, but I guess I am perplexed by why somebody would make that argument and not vote against it. Regardless, for all of the reasons that Senator Cotter pointed out, I will vote against it.
Senator Klyne: My suggestion for species used in biomedical research and the like is that they not be designated. In the preceding bill, I included no species of primates used for such research in Canada. My concern here is primarily around elephants, with the comments I have noted.
Senator Batters: With regard to what Senator Klyne said, how does he know — just because his previous bill did not list any of those? He has now opened it up. This is not limited even to the list of 800 animals that he had with his previous bill. This could have thousands of animals, including many animals used for exactly that kind of scientific research.
There is no reason to think that just because Senator Klyne, in a previous bill, said in a speech that the federal cabinet is not going to include it. We have no idea. It just says “designated animal” and that is it. Thank you.
Senator Clement: Listening to my colleagues, I want to add that this is consistent with changes brought by Bill S-203 regarding the captivity of whales and dolphins. In the policies under the Fisheries Act, there is a clear connection between scientific research and conservation. The language is used in the policies. This is not something that is unheard of or has not been done before; it has been done specifically in the way that I am suggesting in this amendment.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: We will go to a roll call vote.
Mr. Labrosse: The Honourable Senator Jaffer?
Senator Jaffer: Yes.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: No.
Mr. Labrosse: The Honourable Senator Boyer?
Senator Boyer: Yes.
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, P.C.?
Senator Gold: Abstain.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: Yes.
Mr. Labrosse: The Honourable Senator Oh?
Senator Oh: No.
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: Abstain.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: Abstain.
Mr. Labrosse: The Honourable Senator Tannas?
Senator Tannas: No.
Mr. Labrosse: Yeas, six; nays, four; abstentions, four.
The Chair: I declare the motion in amendment carried.
Now to the next amendment DNP-S15-1-3-38. Senator Plett, this is your amendment.
Senator Plett: Colleagues, I move:
That Bill S-15 be amended in clause 1, on page 3, by adding the following after line 38:
“(8.1) Paragraph 1(a) does not apply to a zoological institution that is accredited by either Canada’s Accredited Zoos and Aquariums or the Association of Zoos and Aquariums.”.
This is the first of three amendments that could see accredited zoos exempted from the Criminal Code offence created in clause 1 of the bill prohibiting the possessing, breeding or failure to prevent natural breeding of elephants and great apes. It would protect the ability of the accredited zoos to continue their fantastic work, while not allowing elephant and great apes to be held in non-accredited institutions to be used for entertainment anymore.
This amendment is in line with what we heard from the Toronto Zoo, the Calgary Zoo and the Granby Zoo when they were here and I asked them this:
If we simply introduced a bill that said that every facility that wanted to have any animals in its care had to be accredited by the Association of Zoos and Aquariums, or AZA, or Canada’s Accredited Zoos and Aquariums, or CAZA, would that solve your problem? . . .
Their responses were unanimous: It would solve the problem. They were 100% supportive of this very simple and effective solution.
Dr. Clément Lanthier, President and Chief Executive Officer of the Wilder Institute/Calgary Zoo, said:
For myself, it is an easy yes, because that will deal with more than 100 roadside attractions that are keeping thousands of animals in questionable conditions most of the time. . . .
The others agreed as well. This is also my view. We must have a clear standard by which it is easily determined whether animals can be held in human care, and that bar should be whether a zoo is accredited.
I know that some senators object on the grounds that such a move would see the zoo industry essentially regulate itself, because they believe this will result in standards that promote the growth of the accreditation agencies rather than the welfare of animals. It has been suggested to me that the accreditation agencies will just drop their standards as low as possible in order to encourage the growth of their memberships.
I can assure you that this concern is unfounded for a number of reasons.
First, this has not been the historical practice of zoo accreditation agencies. The animal welfare standards required by accreditation agencies have been steadily and significantly rising over the last 20 to 30 years. These standards have been ratcheted up voluntarily as the science has improved and public attitudes have shifted toward the optimal conditions for animals held in human care.
The formation of these accreditation agencies were initiated by the industry itself and not as the result of coercion or threat by government. Although animal rights activists like to demonize all zoos and zoo owners, if you have visited any accredited zoos in the past few years, you will have encountered the compassionate attitude of the owners and workers toward these animals.
I had the opportunity — as I wish so many of you would have availed yourselves of — of visiting African Lion Safari again just a week ago. We walked out into the woods and fields where these elephants were roaming around, having a great time. We saw two young elephants. We saw their keeper, Charlie, who was right here at our committee, talk to these elephants. He called an elephant by name out of a herd, and that elephant came and snuggled up to him — and he to the elephant. Then he called a different elephant by name and that elephant came. It was amazing to see the loving relationship this man had with those elephants.
Yet African Lion Safari has been demonized by members of this committee over and over again.
Accredited zoos care deeply about the welfare of their animals. Suggesting otherwise reveals a deep bias that is not based upon fact. If accreditation agencies were going to opportunistically set their standards as low as possible in order to boost their membership, then this would be happening now, and it is not.
It is misleading to suggest that zoos are self-regulating. Every province has strict animal welfare standards and an inspection system for zoos, so to suggest there would be no oversight for the standards set by the accreditation agencies is false and misleading. Without exception, standards set by the accreditation agencies are higher than those established by provincial regulations. This is why the worst zoos in the country are those which are not accredited.
Accreditation raises the bar; it does not lower it. These agencies — CAZA and the Association of Zoos and Aquariums, or AZA — do excellent work and should be encouraged in their efforts, not undermined and made redundant.
I find it extremely ironic and troubling that when governments across the country have done such a poor job of regulating zoos, the sponsor of this bill believes the solution to the problem is to give the government even more control. When you consider that the best zoos in the country are those accredited by non‑government industry associations and the worst ones are those governed only by government regulations, why would we want to turn the oversight and accreditation of zoos over to the government?
The third reason regarding why giving accredited zoos an exemption would not result in a race to the bottom for accreditation standards is because public opinion is the ultimate arbiter of animal welfare standards, not the government or accreditation agencies. Animal welfare standards have been increasing dramatically over the last few decades. People seem to say that elephants have been an exception to that; they haven’t been. Standards have been increasing dramatically because people have been demanding that they increase.
The accreditation organizations reflect that and often lead it, while the government is usually taking up the rear, only responding when public pressure forces it to.
This bill was brought forward by the government because of pressure from animal rights activists; that is why we have this bill before us.
The fact is that accreditation is only as good as its perceived value to the public. If an accreditation agency does not keep up with public opinion, then accreditation becomes a black mark rather than a sign of excellence. I can assure you that accredited zoos across Canada are aware of their reliance upon public opinion in order to continue to do what they do. It is simply wrong to suggest that giving them an exemption to this bill will result in the diminished standards. It is out of touch with today’s reality. I have visited Assiniboine Park Zoo in Winnipeg and the Calgary Zoo; we have been to the Toronto Zoo, the Granby Zoo and a host of others. They are accredited zoos with the highest of standards.
Colleagues, we must realize that the federal government has no expertise or experience with animal welfare. Without this exemption, this bill launches the government into an area where it has no expertise or experience. Will the federal government begin performing zoo inspections to ensure that the criminal prohibitions are followed? Where will the scientists, veterinarians and animal welfare experts to inform the government’s decisions come from? The wealth of knowledge and expertise is currently found in the industry itself. Does the government plan to poach the veterinarians from the Calgary Zoo in order to have the resources it would need to fill the new mandates under this bill?
The simplest and most sensible thing we could do is pass this amendment. By doing so, we would be protecting the welfare of animals in zoos across Canada by strengthening our zoo accreditation agencies and making such accreditation mandatory for certain animals.
In its current form, Bill S-15 is largely aspirational. It does nothing to improve animal welfare and undermines those organizations that are working hard today to constantly advance the welfare of animals in zoos. Providing this exemption would ensure that those organizations are strengthened rather than diminished. It would ensure that both they and the accredited zoos in Canada can continue their good work.
Giving AZA- and/or CAZA-accredited zoos an exemption would not leave them drifting on their own in some ocean of unaccountability. It would empower them to do more and to do it better.
Colleagues, I urge you to support this amendment. Let’s improve the welfare of animals across the country and deal with the non-accredited roadside zoos. I’m the first one to support that.
These are good institutions that we are going to handcuff. We are going to have inexperienced, unknowledgeable people running our zoos instead of the fine people we have now. Thank you.
Senator Gold: I do not need to be the first one to speak afterward, as I mentioned to the clerk. If others wish to speak, I am happy to wait. Thank you.
Senator Simons: I confess that when I first saw Senator Plett’s amendment, when the bill was in its original form, dealing only with great apes and elephants, it seemed to me that the purpose of this amendment was to vitiate the entire bill, because the great apes and elephants are only held in accredited zoos, and so it would make the bill moot.
However, now that we have added the Noah Clause, I see a point to Senator Plett’s amendment, because now we are potentially talking about all kinds of other animals.
What most concerns me is the evidence we heard about people keeping wild cats and reptilians in ways that are unsafe not just to the animal but to the general public. Whereas I initially would have voted against this amendment without hesitation, I now confess, with the scope of the bill broadened to potentially include all kinds of other animals, I see a point to it. I can certainly see a situation where we would want to say that nobody can keep snakes as private pets, but that there is still a value to them being kept in accredited zoos.
While I wrestle with the contradiction here, I want to note for the record that an amendment that read one way when we had the original bill now reads very differently because the bill has been substantively amended.
Senator Klyne: I heard some reference to “demonize” earlier, but Bill S-15 is not intended to demonize or close zoos. It’s designed to have more good zoos, as Senator Plett was referencing.
Colleagues, I will vote against this amendment. It would provide permanent authorization for new captivity or breeding of elephants, great apes and any other species by members of two private trade associations, those being CAZA and AZA. Right now, the AZA standards are those which others aspire to; they are considered the higher standards of accreditation.
With this amendment, new captivity would not require a government licence, contrary to a core principle of all versions of Canada’s whale and dolphin laws. With Bill S-15, new captivity would require a licence for best interests, conservation or science from an independent decision maker based on evidence. This amendment would allow new captivity for public display alone at the discretion of private organizations with a financial interest. If claims about best interests, conservation and scientific value hold true, affected zoos can apply for and receive a licence.
In addition, CAZA and AZA members are not exempt from concerns we have heard from independent scientists, particularly as it regards elephants, but also great apes, big cats and other species. For example, Bob Jacobs explained peer-reviewed scientific evidence that captivity can cause brain damage to these species due to impoverished environments and chronic stress. We also heard from Lori Marino about common behavioural abnormalities of these species in captivity, including repetitive stereotypies, even at AZA zoos. She cited studies that say a majority of these great apes engage in abnormal behaviours reflective of compromised brain function.
In Canada, two CAZA zoos and one AZA zoo currently hold elephants, a highly social species, in numbers between one and three individuals. A third CAZA zoo has offered elephants for sale in situations where it would break up mother-daughter pairs, and we have evidence from scientists such as Keith Lindsay that this would be cruel to individuals. All these elephants need to stay indoors for most of the winter. One Canadian AZA zoo kept orangutans indoors for nearly 50 years, until last year. It would be premature to conclude that concerns are unimaginable regarding CAZA and AZA locations with respect to these species.
Moreover, all accredited zoos in Canada generally keep tropical species indoors in winter. This is a practice that invites further scrutiny, not carte blanche. In the case of CAZA, we have heard that they continue to allow the use of bullhooks on elephants, unlike AZA. We have heard from multiple animal welfare NGOs that CAZA accreditation does not provide adequate protection against animal cruelty.
In addition, Animal Justice has submitted a detailed brief about CAZA outlining issues with transparency, accountability and shortcomings around inspections and standards, as well as a record of animal safety and welfare incidents.
I grant that the AZA is a much larger and more arm’s-length organization; however, it has a financial interest in wildlife captivity. The AZA also continues to uphold whale, dolphin and elephant captivity for public display purposes, and that concerns me.
With all this said, AZA and CAZA zoos will be able to obtain licences under this act where the purposes are met, and I encourage them to do so. For these reasons, senators, I urge you to stand firm on the principle of legal protection for captive wildlife and vote against this amendment.
Senator Cotter: I agree with almost all of what Senator Plett said, with the exception of a few slights of exaggeration — rare for him, I acknowledge — but the remedy he proposes is deeply problematic.
This is not a reflection on CAZA or American regulators. Let me offer you a parallel: The most self-regulated entity in Canada, with quasi-constitutional protection for that regulation, is lawyers. But we do not say that if you are governed by the law society of your jurisdiction, you are exempt from provisions of the Criminal Code. As good a regulator as these folks may be — perhaps with some exceptions that Senator Klyne identified — this amendment would exempt approved zoos from the application of the criminal law. It’s not so much a matter of having overseers visiting the zoos at all these times, but a question of whether on an occasion where it is alleged that a crime occurred under this legislation in paragraph (1)(a), which is where this amendment would apply, there would be no ability to prosecute that offence.
I recognize the value of what Senator Plett said, but the remedy he proposes is deeply troubling to me, and I will vote against this amendment.
Senator Batters: A few submissions ago, Senator Klyne indicated his position on this amendment. Now Senator Klyne, the government sponsor of this government bill, does not want two highly accredited zoo organizations, through the very rigorous perspectives that they have on accrediting a zoo organization, to have valuable input on what institutions are included in this bill. Meanwhile, this same government sponsor of this government bill brought forward his massive Noah Clause amendment, which will allow the federal cabinet — not Parliament, not anyone who is accountable to the public in that very open way — to potentially include thousands of animal species in this Criminal Code provision. I just find that astonishing.
I will also point to what Senator Klyne said yesterday in response to Senator Plett’s subamendment on his Noah Clause. Senator Klyne said:
Senators, this subamendment would impose additional administrative requirements on the government to exercise the Noah Clause — perhaps there’s nothing wrong with that, but specifically, a six-month advance 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 grandfather basis. Six months’ notice could prompt certain things to transpire that we would not wish happen.
There, he expressed a lot of concern about roadside zoos. Here’s a way for those roadside zoos to actually have a major impediment to operation — to have this very amendment taken into account. We heard from a number of witnesses, as Senator Plett said. I recall hearing those witnesses. When Senator Plett asked them those questions, what they think about this type of a provision and if it should be brought forward, many of them expressed a lot of favour with that, including those who may not have necessarily been on the same page about this overall bill as Senator Plett.
Senator Gold: The government opposes this amendment for the reason that the bill, by design, does not take an approach that incorporates standards.
However good those standards may be, standards do vary. Therefore, this bill, unlike previous versions, does not include references to accreditation bodies. In that regard, groups before this committee — Humane Canada and Animal Justice to name two — support the bill’s current approach, which focuses on the issue of captivity and cruelty but does not embody or incorporate references to those standards, much less exemptions. Therefore, I will be voting against this amendment.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: We will have a roll call vote.
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 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, P.C.?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: No.
Mr. Labrosse: The Honourable Senator Oh?
Senator Oh: Yes.
Mr. Labrosse: The Honourable Senator Pate?
The Chair: She’s not here.
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: Abstain.
Mr. Labrosse: The Honourable Senator Tannas?
Senator Tannas: Abstain.
Mr. Labrosse: Yeas, three; nays, eight; abstentions, two.
The Chair: I declare the motion in amendment defeated, senators.
Senators, it’s almost a quarter past 1 p.m. We will proceed with the next amendment.
The next amendment is DB-S15-1-4-4.
Senator Batters: On this, I move:
That Bill S-15 be amended in clause 1, on page 4, by replacing lines 4 and 5 with the following:
“great ape means any species of the genus Gorilla, Pan, or Pongo, including a gorilla, bonobo, chimpanzee or orangutan. (grand singe)”.
On this, as I brought up a few times during my questioning of witnesses for this committee, I was a little surprised to see how it’s only a scientific definition that deals with this in the act. Right now it just says that, “great ape means any species of the family Hominidae, excluding the genus Homo” — meaning “man.”
When questioning committee witnesses about this previously, I said that this is not the type of definition we would normally see in an amendment to the Criminal Code. You would have to refer to something entirely — a scientific definition that is not included in the bill and presumably not even in the regulations to the bill.
The first witness I asked about that was Mary Lee Jensvold. I asked her if she thought that was an appropriate definition or whether there should be a more specific definition that actually spells that out, either in the bill’s definition itself or in regulations.
She said that yes, “Another way to do it would be to simply list the genre that it intends to include. . . .” and she gave some examples. She said that “One way to do it might be to list the ones that you absolutely intend to be included.” Her sound was cutting out a bit, so I asked her if she’d said that gorillas would be considered great apes under that definition. She clarified that they would be, and that “In that definition, only humans would be considered not a great ape. . . .” Then she said that:
. . . another way to do it would be to list the genre, so the genus of each taxonomic group, that you intend to include.
When we had another witness in front of our committee that same day in April — Professor Angela Fernandez — I asked her about the same thing. She said:
. . . the question you raised earlier about whether the types of great apes should be listed and things like that — I think those are all excellent questions to be asking, as well as potentially also a definition of captivity . . .
Then she said, “This is probably all very good work that could be done to improve the bill.”
I think that in this case, we’re dealing with amending the Criminal Code. People are deemed to know what they could be facing if they break a provision of the Criminal Code, so we shouldn’t be using a definition where they would have to go to a very scientific thing to figure out whether that great ape would actually be covered by the Criminal Code provision. Using a more precise definition that is easier to understand for the Canadians who are governed by the Criminal Code is the best way to go here. Otherwise, it could potentially be the type of situation where we’re leaving a definition only with its original scientific phrasing. That could be like referring to an illegal drug by simply its composite periodic table elements and nothing further. We should be trying to make the Criminal Code as reasonably explicative as it can be, and I hope this provision does that.
I tried to come up with a definition. I might have been surprised about a couple of those animals without knowing the precise scientific phrasing, and this just explains everything for people in a very real way.
Therefore, I ask for your support.
Thank you.
Senator Klyne: This amendment would provide a legally and scientifically equivalent definition of “great ape” to that in Bill S-15. As much as we used some plain language earlier to describe farming for food consumption, Senator Batters’ amendment provides the benefit of adding some plain language definitions, making the statute more accessible. For example, there are also gibbons, known as “lesser apes,” though I intend no offence. This will avoid confusion between great apes and other primates. On this, I support this amendment.
Senator Gold: This is an amendment the government has considered and has taken a position on. The government supports this amendment as well.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: I declare it carried.
We now go on to the next amendment, PS-S15-1-4-5.
Senator Simons: I move:
That Bill S-15 be amended in clause 1, on page 4, by adding the following after line 5:
“445.5 (1) The court imposing sentence on a person convicted of an offence under subsection 445.2(2) or (4) or 445.3(1) or discharging the offender under section 730 may, on application of the prosecutor or on its own motion, in addition to any other measure imposed on the offender, order that the offender carry out any action, at the offender’s cost, that is necessary in the best interests of the animal involved in the offence, including
(a) modifying the physical conditions in which the animal is kept;
(b) relocating the animal to another facility or sanctuary;
(c) modifying the social conditions in which the animal is kept; or
(d) forfeiting ownership of the animal and surrendering the animal to an animal welfare authority named in the order.
(2) In determining whether to make an order under subsection (1), the court must ask for and consider expert evidence on the individual animal’s welfare and conservation of its species.
(3) On its own motion or on application of the prosecutor, the court may make an order made under subsection (1) applicable to any other animals in the offender’s possession if those animals are of the same species as or a species closely related to the animal in respect of which the offence was committed.”.
This is a very long way of saying that the bill as currently written provides that under the Criminal Code, illegal breeding or performance for entertainment would be punishable by a summary conviction and a fine of up to $200,000. While that deals with the offender, it doesn’t do anything to help the animal.
The addition of this amendment would allow authorization to relocate the animal to a safer, more humane area, or to impose conditions related to the breeding. As a hypothetical example, if the Simons Zoo was mistreating its orangutans, you could also make sure the gorillas were being well cared for if they were a similar species; or, for example, should this ever be expanded to deal with crocodilians, if the Simons Zoo is allowing the alligators run free, then we would also stop the crocodiles from running free. It’s one thing to punish the offender, but that doesn’t do anything to help the animals that might be in peril or maltreated.
I invite you to support this subamendment.
The Chair: May I ask Justice officials to comment on that?
Mr. Godlewski: Sure. Thank you for the invitation.
There are three things I would highlight on this amendment in the event they’re helpful considerations for the committee.
Well, I’ll add three and a half or four things, because there was one thing Senator Simons mentioned that I would add to.
Senator Simons spoke to mistreating the animals. I would add as a footnote that the existing offences in the Criminal Code that relate to causing unnecessary pain or suffering to an animal, or the existing provincial welfare regimes, would continue to apply, as they do today, in the future.
Of the three things I would note on this amendment, the first is that the Criminal Code does have seizure and sentencing general provisions. In adding offences to the Criminal Code, the intention was that Bill S-15’s offences would rely on those general provisions.
In general, the seizure and surrender of these animals could already be possible under the existing law, in addition to the fact that existing sentencing authorities may allow for some of these desired outcomes that would be created by this amendment. For example, surrendering and relocating an animal could potentially be the component of a probation order, which would be available for this offence.
The second thing I would note about this amendment or this motion relates to the expert evidence requirement that it would create.
One thing to consider with requirements for expert evidence, versus a discretionary power — which is something that courts currently have at sentencing, but it may be useful to think about as a question for the committee — is this: Is it needed to restrict judges in all cases? Given there’s a cost to having experts attend proceedings, who would pay for those experts? Would this make the offence more complex and difficult to prosecute? Those are questions that may be useful for the committee to consider.
My third general point is that sentencing proceedings serve different purposes than other legal proceedings. It may be worth it for the committee to ask whether all of these powers would fit within the role of an existing sentencing hearing. For example, sentencing hearings relate to the offence that an offender was convicted of. We don’t tend to have sentencing provisions that don’t relate to the offence that was charged.
For example, if we’re talking about a sentencing court making an order applicable to a closely related species that is in the offender’s possession but wasn’t itself the subject of an offence, this motion would seem to do that. I’m not sure how that would relate to the offence that was charged.
Those would be some of the considerations I would note.
The Chair: Thank you.
Senator Klyne: Colleagues, I support this amendment.
Currently, under the Criminal Code clause of Bill S-15, illegal breeding or performance for entertainment would be punishable by summary conviction and a fine of up to $200,000.
This amendment would add express judicial authorization to relocate or impose conditions in relation to animals involved in illegal breeding or performance for entertainment with costs to the offender. In this regard, this sentencing measure represents a breakthrough, not only in terms of deterring harmful conduct but directly helping animals involved in captivity offences.
By common sense, if someone illegally breeds, say, tigers — if designated under the act — should that person be able to keep them through both an animal cruelty and public safety lens? Notably, a judicial order could relate not only to the individual animals involved directly in the offence, but to animals of the same or closely related species in the offender’s possession. For example, it could apply to lions and tigers. This measure is legally analogous to other criminal measures for the seizure and disposition of property involved in crimes.
Another effect of this measure could be to encourage police and prosecutors to pursue charges for captivity offences by highlighting the public interest in terms of achieving relocations of animals in unacceptable circumstances.
I note this committee heard from Animal Justice, for example, that Marineland appeared to be flouting the performance ban with its dolphin dance parties.
Senator Gold: Colleagues, the government has not landed on a position on this one, so I’ll be abstaining.
Senator Batters: It makes it difficult when even the government, which has all the resources of all these people it can consult on this, doesn’t have a position yet. Frankly, that should tell us that we shouldn’t even be talking about it.
I notice a few things here. This particular amendment now would apply not just to great apes and elephants but, as Senator Pate referenced in her opening remarks about it, to all designated animals —
The Chair: Senator Simons.
Senator Batters: I am sorry. I meant Senator Simons.
It would apply to all animals that cabinet designates as applicable here.
I have a few concerns about this, especially given the wide‑ranging orders that would need to be considered and perhaps made in this. Could the officials let us know whether this intrudes on provincial jurisdiction with respect to their powers over regulating zoos?
I also note that it says in subclause (2) of the amendment:
In determining whether to make an order under subsection (1), the court must ask for and consider expert evidence on the individual animal’s welfare and conservation of its species.
So the court must ask for and consider expert evidence on this. Who pays for that expert evidence?
Also, including the word “must,” means it has to be done in all cases, even if we have a case where the person who is convicted agrees to do it; you still have to have that expert evidence that the court asks for and considers.
Even in a situation where the convicted person — to try to get a matter dealt with in an easy time frame, to not taking a lot of the court’s time or consideration — agrees to that, you still have to go through the process, which could potentially add to significant court delays.
I’d like to have the officials answer, if they could, my question about the provincial jurisdiction, and also this one: Who would pay for that expert evidence?
Mr. Godlewski: With respect to your question on the provincial jurisdiction piece, I can’t offer a constitutional assessment on what the amendment would do.
Would you mind repeating the second question?
Senator Batters: First, with respect to the constitutional assessment, who can offer that? That’s an important consideration here.
Obviously, we’re not going to be done with this in 15 minutes. Could we have an official from the Department of Justice come to our next meeting to offer us that kind of constitutional assessment? This is not just conviction. There are substantial things that could get into provincial jurisdiction.
My second question was about the part reading, “. . . must ask for and consider expert evidence on the individual animal’s welfare and conservation of its species.” Who pays for that expert evidence?
Mr. Godlewski: The lack of discretion that’s in the order you’ve noted does raise that question as to who would pay for it. I have the provision here in my notes. I’m going to look to it briefly.
A power for sentencing courts to hear evidence is located in section 723 of the Criminal Code. But the mandatory aspect, as you noted, means that it must be considered. It does raise the question as to who would be required to pay that cost.
Senator Batters: I would like to have someone from the Department of Justice perhaps come to the next committee to answer on the constitutional issue.
Senator Plett: Senator Batters asked the question, but I am also going to put my concerns on the record here. Animal welfare is certainly provincial jurisdiction, and every province has regulations that pertain to physical and social conditions in which animals must be in captivity. In my opinion, this is clearly jurisdictional overreach on the part of the federal government.
Chair, I agree that we are not going to finish here in 14 minutes. I think we either need to get a written response for the next meeting or have somebody here to tell us who is in charge here, the provinces or the federal government.
Our own federal government doesn’t have an opinion on the amendment, so we are left completely in the dark here. We have a federal government that doesn’t have an opinion and, with respect, officials who clearly can’t answer the question.
I trust that will be done. In fairness, unless you say no and that we’re going to move ahead, I will keep my comments and opinion on the amendment for later.
I do appreciate the sentiment behind the amendment, but I have a number of reasons why I will be voting against it. I would like an answer to that question, chair.
Senator Simons: I want to thank everyone for these comments. I found them helpful, both from the officials and my colleagues around the table.
Mr. Godlewski, you raised concerns at the outset about whether this is duplicative — whether these powers might exist in other parts of the Criminal Code.
Does that make this amendment redundant to you, or do you see things that would be valuable in having it spelled out this clearly?
Mr. Godlewski: On the value part of the question, I think it is for the committee. I would allow the committee to make its own determination on whether it is redundant.
Senator Simons: That is why you are here: to help us to make that consideration.
I’m not a member of the Justice Department. To me, this amendment looked like it provided a value-added. If you were to tell me that there would be no benefit achieved by this, I would appreciate your analysis.
Mr. Godlewski: The challenging piece for me is more in the possible factual situations that could arise under this bill. It is very difficult to predict the full scope of the situations that we could be dealing with because we are talking about a few different ways that this offence could be committed. For example, there are the breeding modes of the offence versus the possession modes of the offence. It is that side of it that makes it difficult to offer an answer.
Senator Simons: And now that the Noah Clause is in, the amendment reads rather differently than when it was first drafted.
I want to thank Senator Batters because I confess that I had not thought through the full consequences of saying “must” as opposed to “may.” I do not know if it would be appropriate for me to offer my own subamendment, or if Senator Batters would like to offer a subamendment to change “must” to “may,” which would signal the importance of expert evidence without making it essential because of the situation that she has outlined, where there is an agreement to move swiftly to trial.
Senator Batters: I’m not inclined to change “must” to “may.” That is only one of the problems that I set out. My major problem is with respect to the issues already covered under the Criminal Code with sentencing, though I also want to know those questions about provincial jurisdiction.
Senator Simons: We certainly heard other witnesses testify that they thought that this was an area of sufficiently shared jurisdiction that, under the Criminal Code, it could be included.
With the time remaining, I don’t know if it is useful for me to proffer a subamendment to change “must” to “may,” or if that muddies the waters.
Senator Klyne: I remind the committee that law professors from several universities submitted a brief, organized by Professor Angela Fernandez from the University of Toronto, confirming that this is constitutionally within the criminal sentencing.
With regard to a subamendment of “must” to “may,” I would be prepared to do that.
Senator Batters: With respect to that point, Senator Klyne, what Professor Fernandez came to say was that Bill S-15 as it existed a few weeks ago, when she came to testify, was constitutional. That was a considerably limited bill compared to what it is now, and also applied to only great apes and elephants and dealing with the cruelty issue. It is now very expanded.
Also, she certainly was not evaluating this amendment, and we cannot apply anything that she said to this amendment.
Senator Klyne: I believe that her brief did cover this amendment.
Senator Plett: How? She did not know that it would be here.
Senator Dalphond: My question was answered, thank you.
Senator Plett: Excuse me. Senator Klyne said that what she said covered this amendment. I would like to know: If she spoke to it, how did she know this amendment was going to be there? We didn’t know that it would be there. We did not know that she was speaking to this amendment.
Senator Klyne: There was an iteration in a previous format of this. That is what she referred to.
Senator Simons: But even then, with respect, that’s before the adoption of the Noah Clause, which I did not support.
Senator Plett: It was before the Noah Clause was even introduced.
Senator Simons: Yes.
Senator Klyne: It was another iteration of this amendment, but it also had the iteration of the Noah Clause.
Senator Plett: No. 241 — that was withdrawn.
Chair, Senator Klyne is saying that witnesses, constitutional experts or whatever he called them, came here with their opinions on something.
We have a few law professors and lawyers in the committee right now; one of them said his government doesn’t have an opinion on this. I’m not sure what he said because we don’t know what the government has an opinion on. Also, we have constitutional experts here who cannot give us an answer.
I don’t think the sponsor of the bill telling us that a witness said this was good when they were not even speaking about this should hold any water here.
We have seven minutes left in this meeting. I do not think that anything is going to happen if we adjourn here and simply get an opinion for our meeting next week. I am requesting that. If not, then I have a few more comments to make on this. However, I do not think that we can go ahead with this until we have that opinion.
The Chair: Senators, I am in your hands. Do enough of you want a constitutional opinion?
Senator Batters: Yes. I would like a Department of Justice official as a witness —
Senator Dalphond: May I ask a question of the officials?
The Chair: Yes.
Senator Dalphond: To the officials from Justice: Does the Criminal Code contain provisions that provide for confiscation and disposition of the proceeds of crimes or tools used to commit crimes or the proof of crime?
Joanna Wells, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: Yes, senator, they do.
Senator Plett: I would also like to ask them a question.
Specifically, does this amendment not essentially utilize federal legislation to empower the courts to override provincial animal welfare regulations? If so, how is this not jurisdictional overreach on the part of the federal government? If not, then please say it is not.
But, clearly, I believe that this is provincial jurisdiction. I would like you to tell me that it isn’t. I’m asking them, not you, Senator Dalphond.
Senator Dalphond: I know that you are not asking me. I will not provide you with an opinion or an answer.
Ms. Wells: Thank you for the question, senator.
As a point of minor clarification, my colleague and I are criminal law experts, not constitutional law experts. I want to make that point clear.
Senator Plett: I appreciate that. If you cannot answer the question, I’m okay with that.
Ms. Wells: What I can provide to you is some general information about the constitutional framework that the criminal law operates in. As you know, the federal government has authority over the criminal law, and the provinces have responsibility for property and civil rights. There can be overlap between the two of them, which we do see throughout the Criminal Code. Senator Dalphond provided one example whereby the proceeds of crime can be seized by authorities, despite the fact that they may also be somebody’s property. So there are multiple examples in the criminal law where this type of overlap can occur. Whether or —
Senator Plett: Is animal welfare provincial —
Ms. Wells: If you will let me finish, I can answer.
Whether they encroach too far or overlap too much is a decision that will ultimately be made by the courts if, at some point, this is challenged.
Senator Plett: But in your opinion, is animal welfare provincial jurisdiction?
Ms. Wells: I think it is fairly well-established that animal welfare generally falls under provincial jurisdiction, and animal cruelty is a well-established area of the criminal law jurisdiction. So it is an area in which there is overlap.
Senator Dalphond: I have a question for the officials. Thank you, because I was going to remind you of section 445 of the Criminal Code, which has dealt with criminal law for over 100 years.
Maybe I am wrong — please confirm if my understanding of the law is still correct; I’m aging — but I think there was a case before the Supreme Court about gun control and gun registration where the Province of Alberta argued that it was provincial law, because it was about the ownership and use of guns, and that they were governed by a provincial law and the Criminal Code was an overreach. I think the Supreme Court concluded — maybe I’m wrong — that it was perfectly valid constitutionally, because it was criminal law and part of it will include the confiscation of guns. Maybe I am wrong. I just want to check with you.
Ms. Wells: I believe that you are referring to the firearms reference case, Senator Dalphond, where the Supreme Court did find that criminal law jurisdiction did exist over firearms, despite the fact that they could be property.
Senator Cotter: I was not planning to enter this debate, although I thought that I was invited to by Senator Plett.
Animal welfare is generally provincial jurisdiction, but if we criminalize something, like guns or behaviour in relation to animals under the Criminal Code and it is genuine criminal law, the governing principle of paramountcy makes the matter legitimately criminal law and constitutional. This is a respectful observation, but it is a complete red herring. We can get people to come — and we’ve pretty well run out of time, so we might as well — but that is what they are going to tell us. Thank you.
Senator Batters: Earlier, when I brought up this concern and asked Mr. Godlewski this question, he said that he was not a constitutional expert. That is why I asked for people from the Department of Justice to come to our next meeting — so they could answer these questions.
Looking at Senator Simons’ amendment, there are many parts of it that could be much more of a grey area than what Senator Cotter was just referencing. Talking about these conditions that could be imposed in sentencing on this, “modifying the physical conditions in which the animal is kept . . .” “relocating the animal to another facility or sanctuary . . .” “modifying the social conditions in which the animal is kept . . .” or “forfeiting ownership of the animal and surrendering the animal to an animal welfare authority named in the order. . .” — all those things seem to me to be a bit of a grey area where it is important and prudent that, if we’re trying to have sober second thought in the Senate, we get what could be an easy answer from someone. There are many very capable people in the Department of Justice who have this kind of knowledge. I ask that we get that at our next meeting, please.
The Chair: Senators, we have run out of time.
I am going to ask the Senate’s permission — basically the leaders’ permission — to sit next Tuesday. Steering has agreed on that; steering instructed me. That is what I’m saying. What are you saying?
Senator Batters: What I was saying, chair, is that we agreed to ask our groups. That is a good thing to do, but I do not think that we can necessarily speak for that.
The Chair: Senators, at steering, we discussed whether we would sit next Tuesday to finish this. I am not sure if I will get permission. I want to say that, next Wednesday, we will have to start on the BIA bill because we have a deadline to meet. We will have to do that next Wednesday. That is just a heads-up. I would prefer that we finish this before we go to a new bill or issue, but we will see what happens.
Thank you for your patience.
(The committee adjourned.)