THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Tuesday, June 18, 2024
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 3:30 p.m. [ET] to study 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: Honourable senators, I’m Mobina Jaffer, senator from British Columbia.
I invite my colleagues to introduce themselves, starting with the deputy chair.
Senator Batters: Senator Denise Batters from Saskatchewan.
Senator Plett: Senator Don Plett, Manitoba.
[Translation]
Senator Oudar: Manuelle Oudar, Quebec. Welcome.
Senator Clement: Hello again. Bernadette Clement, Ontario.
[English]
Senator Simons: Senator Paula Simons, Alberta, Treaty 6 territory. I won’t say anything about the game because I don’t want to jinx anything.
Senator Cotter: Good afternoon. I’m Brent Cotter, senator from Saskatchewan.
Senator Tannas: Scott Tannas from Alberta.
The Chair: Before we begin, I would like to ask all senators and other in-person participants to consult the cards on the table in front of them for guidelines to prevent audio feedback incidents. Honourable senators and guests, it’s really important that you follow the instructions on the card, especially for the sake of the interpreters. Thank you for your cooperation in this matter.
Senators, we are meeting to resume 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. We are pleased again — thank you for coming again and being so patient with us — to welcome officials from Department of Justice Canada and Environment and Climate Change Canada.
From Department of Justice Canada, we have Aleksander Godlewski, Counsel, Criminal Law Policy Section; and Joanna Wells, Senior Counsel, Criminal Law Policy Section. From Environment and Climate Change Canada, we have Stephanie Lane, Executive Director, Legislative Governance; and Basile van Havre, Director General, Canadian Wildlife Service. Welcome. Thank you for joining us again.
Senators, during our last meeting, as you may remember, we adopted clause 11 of Bill S-15, then reverted to clause 1 and adopted an amendment that was proposed by Senator Dalphond, PJD-S15-1-3-6. As such, we will have to vote once again on clause 1, as amended, before moving on to the preamble.
Shall clause 1, as amended, carry, senators?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: Would you like a roll call?
Senator Plett: Yes.
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 Carignan, P.C.?
Senator Carignan: No.
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 Klyne?
Senator Klyne: Yes.
Mr. Labrosse: The Honourable Senator Oudar?
Senator Oudar: No.
Mr. Labrosse: The Honourable Senator Pate?
Senator Pate: Yes.
Mr. Labrosse: The Honourable Senator Plett?
Senator Plett: No.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: Abstain.
Mr. Labrosse: The Honourable Senator Tannas?
Senator Tannas: Abstain.
Mr. Labrosse: Yeas, 7; nays, 3; abstentions, 2.
The Chair: Honourable senators, clause 1, as amended, is carried.
We will now go on to the preamble amendments. We first have Senator Plett’s change. It’s on DNP-S15-PRE-1-1. It is moved by Senator Plett that Bill S-15 be amended in the preamble, page 1, on line 1.
Senator Plett: It is amending the preamble on page 1 by deleting lines 1 to 3, rather than being on line 1.
The purpose of deleting the preamble is to remove the unsubstantiated claim that public opinion on the captivity of certain animal species has changed. A number of witnesses expressed concerns about this part of the preamble and recommended that it be removed. Serge Lussier, from Canada’s Accredited Zoos and Aquariums, said:
. . . the preamble to Bill S-15 from the outset makes claims that are debatable. There is considerable scientific literature to support opposing views. The claims relating to public opinion in the preamble are unsubstantiated. . . .
Dr. Christopher Stremme said:
In the first paragraph of the preamble, it is stated:
. . . Parliament recognizes the evolution of public opinion on the captivity of certain animal species that are not domesticated.
If this is meant to claim that there is a broad objection among the general public to apes and elephants in captive wildlife facilities, this is contradicted by the millions of visitors to facilities in Canada that manage some of these species. Therefore, it seems that the statement is the rather well-orchestrated opinion of a minority and not a majority opinion of the public.
Colleagues, this is a very good point. I have visited these zoos. I have stood there and watched the lineups of people coming in to see these magnificent creatures, interacting with them and enjoying something they would otherwise never have the opportunity to see. If it weren’t for institutions like African Lion Safari and others that have great apes, our public would never get to see these magnificent creatures in great settings where they are enjoying themselves. The animals are enjoying themselves as well as the spectators. There is no question that the viewpoints of some people are changing, but the preamble suggests that there is a broad-ranging transition in public opinion toward holding non-domesticated animals in human care. This is simply not accurate, and I believe this paragraph in the preamble should be deleted for those reasons.
Senator Batters: Looking at that first paragraph of the preamble, I also note that it starts out by saying, “Whereas Parliament recognizes the evolution of public opinion on the captivity of certain animal species that are not domesticated;” yet nowhere in this bill of nine pages or so does it ever define the word “captivity.” We had considerable discussion at a number of meetings on this bill about the fact that “captivity,” to some witnesses, basically seems to mean “human care.” We can’t say that public opinion has evolved when we haven’t even defined what the word “captivity” means. There can be quite a wide-ranging thought process around that word.
Senator Klyne: In the interest of moving the agenda along and everyone’s time here, I have nothing to say. I’m not going to disagree.
Senator Cotter: I support Senator Plett’s proposed amendment to delete these lines. I don’t know where public opinion is on this, but I’m nervous that we would articulate the founding of a bill on the basis of public opinion. There are days when public opinion might be in favour of quite severe punishments for some things, but that might not be respectful of people’s rights. In certain ways, these three lines are not relevant or necessary to the bill, and I would support their deletion.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Carried.
It is moved by Senator Simons that Bill S-15 be amended in the preamble on page 1 at line 4.
Senator Simons: With the greatest respect, Madam Chair, I’m going to pull this amendment and defer to Senator Cotter’s amendment, which does the same thing but more elegantly.
The Chair: On amendment BC-S15-PRE-1-4, it is moved by the Honourable Senator Cotter that Bill S-15 be amended in the preamble on page 1 at lines 4 to 7.
Senator Cotter: I move an amendment to the preamble to achieve the following:
That Bill S-15 be amended in the preamble, on page 1,
(a) by replacing lines 4 to 7 with the following:
“Whereas Parliament is of the view that certain animals should not be kept in captivity because of the risk of animal cruelty and the risk to public safety that such captivity presents;”;
(b) by replacing line 9 with the following:
“these animals in captivity may be justified in certain cir-”.
I propose this amendment for two reasons. First, with the adoption of the Noah’s Clause, the reference in the present preamble that focuses particularly on elephants and great apes is potentially under-inclusive. We need to limit the phrases here to “certain animals” as opposed to specifically “great apes and elephants.” That is not an impossibility, but the intention is to create greater space, and the preamble should align with that.
Second, I am more comfortable with the amended language in reference to cruelty and public safety in the following way: The existing preamble without amendment reads “. . . because of the cruelty it represents . . .” which is a bit too conclusive for me. I would prefer the phrase “risk of animal cruelty.”
We heard some of the concerns with respect to the captivity of animals and the risk to public safety that such captivity presents. It seems to me appropriate to acknowledge that in the preamble.
Those are the main reasons for this proposed amendment.
Senator Simons: I second that. I share Senator Cotter’s concerns about the emphatic assertion that all captivity is equivalent to cruelty.
Given that we’ve added the Noah’s Clause, about which I’m still uneasy, the question of public safety is particularly important because now we’re perhaps talking specifically about large boa constrictors, crocodilians or big cats. There would be some risk to public safety if an elephant were to escape, but there’s a demonstrably higher risk of danger to the public from some of those other animals.
Senator Plett: Right after Senator Cotter so graciously supported my amendment — it was a great victory for me, Senator Cotter — the fact of the matter is that I disagree that your amendment does exactly the same things as Senator Simons’s because I was prepared to support part of Senator Simons’s amendment and not the other part. But here we are. They certainly couldn’t both be in there.
I have an amendment that will be moved if this amendment passes. We object to the term “cruelty” being used here. We have heard from witnesses over and over again that the science does not support equating captivity with cruelty. Serge Lussier, from Canada’s Accredited Zoos and Aquariums, said:
. . . the statement that elephants and great apes in captivity represent cruelty is not supported by sound science or credible evidence. CAZA requests the removal of any reference to animal cruelty.
Trish Girth of the African Lion Safari noted:
There is no science-based evidence that has established that certain animals, particularly elephants and great apes, should not be in captivity. This part of the preamble should be removed. African Lion Safari recommends that any reference to animal cruelty be deleted.
I’ll read a few more. I won’t read all of them I have here, chair, because I don’t want to belabour this for too long in this committee.
Dan Ashe, from the American Association of Zoos and Aquariums, echoed these words, saying:
We disagree that the human care of elephants and great apes is inherently cruel. Jane Goodall herself recognizes that great apes, in well-designed facilities, under compassionate professional care and living in functional social groups, can live better lives than their counterparts in nature. The same is true for elephants.
Clément Lanthier, President and CEO of the Wilder Institute at the Calgary Zoo, said:
. . . it is scientifically wrong to claim that animals are subject to cruelty simply because they are being held in captivity. . . .
I have a number of others, which I won’t go into. They all basically say the same thing. These are high-level executives of zoos, aquariums and other institutes across our country saying that it is not cruel to have animals in captivity.
Can there be cruelty? Absolutely, but it is not cruel to have them in captivity. I want to be congenial today, but I want to repeat what I have said on numerous occasions. I have visited these zoos and aquariums. I have asked this committee to please come and visit African Lion Safari so you can see for yourself whether it is cruel or not. When I see baby elephants running around, having a great time and coming up to us when we are there — happy to see us — and the manager calls them by name and they snuggle up against him, it’s the furthest thing from cruelty. They have 250 acres in which to roam around. I struggle to even call that captivity, but they are limited in where they can go, so you could say that it technically is.
However, colleagues, it is not cruel. I ask that we do not stigmatize these institutions by suggesting that what they are doing is cruel, because that is what we will be suggesting if we pass this amendment. With the greatest of respect to Senator Cotter, we cannot accept this amendment. As a matter of fact, if this amendment should fail, I have another amendment that takes the word “cruelty” out of it. I won’t go over the other five pages of similar comments that I have, but they all say the same thing, chair.
Senator Klyne: I’m going to cut my seven pages down to one.
I begin by offering gratitude to Senator Simons for noting the crossover between the two and standing down for Senator Cotter’s. I appreciate the comments of both Senators Cotter and Simons on this point.
I like that Senator Cotter’s formulation describes both the risk of animal cruelty and the risk to public safety. This bill continues to contemplate captivity in some circumstances that may be justified, those being best interests, conservation or science.
Though captivity may not be these creatures’ ideal, and may be cruel compared to flourishing in the wild — insofar as that is still possible — I like that this language reflects that there are better and worse situations in captivity.
I also like that this language acknowledges captivity may be justified in certain circumstances, suggesting a factual analysis as to whether, for example, there’s conservation value to elephant captivity in North America.
With that in mind, I’d like to say thank you to Senator Cotter. I’m supporting the motion.
Senator Batters: What we’re looking at here are two factors in Senator Cotter’s amendment to the preamble: One is the risk of animal cruelty and the other is the risk to public safety that such captivity presents. With respect to both of these, again, I reiterate that there is no definition of “captivity” in the bill. Captivity does not equate to cruelty, yet that seems to be what is in place here.
A very important factor to note here is that when this amendment was initially proposed and forwarded to everyone, this bill applied to two things: elephants and great apes. Now we have a situation where cabinet could decree any number of different types of animals, with almost no limit, and this bill would apply to those too.
We would have a situation where those same phrases listed in the preamble about risk of animal cruelty and risk to public safety that captivity presents could be applicable to all kinds of animals.
Maybe you could see your way to finding that would be applicable for elephants and great apes, yet for all of these other types of animals, it would not so aptly apply. That’s very important to keep in mind.
You could almost get to an absurd level where certain animals that could in no way be seen as a risk to public safety could be encapsulated by this.
The Chair: Do the officials want to say anything?
Stephanie Lane, Executive Director, Legislative Governance, Environment and Climate Change Canada: I can speak to this.
The provision, as it was originally drafted in the preamble, spoke to the inherent cruelty. As we mentioned before, the position of the bill was that keeping elephants and great apes in captivity, because of the nature of those species, represented inherent cruelty.
As the bill has been amended to include elements related to public safety as well, it seems reasonable that there would need to be a reflection of that public safety element in the preamble.
The framing Senator Cotter mentioned related to the risks of animal cruelty and to public safety, with respect to what the bill had originally been intended to do — and the framing of the bill on the criminal law purpose — the notion of that inherent cruelty was important in the previous bill.
However, having said that, there are definitely elements of the bill that were added with the Noah’s Clause that are reflected in the framing of this current preamble text.
Senator Cotter: I just have a closing observation.
I appreciate Senator Plett’s observations about the people who have concerns on the cruelty point. I had hoped the language “risk of animal cruelty” was soft enough to win the favour of others.
It’s also important, as Ms. Lane just identified, that one of the anchor points that justifies this bill — I see my friend Senator Dalphond nodding — is the exercise of the criminal law power here. As we heard from witnesses, that is connected to the cruelty dimension of things.
Indeed, I think Senator Plett asked some of the constitutional law lawyers questions about that very point. In some ways, in anticipation of this passing — but perhaps Senator Plett advancing his own motion — it is important to preserve that reference to cruelty.
As I understand the interpretation of statutes, the preamble is not determinative, but it is of valuable significance, and especially the story where we remove a reference to cruelty would enhance the interpretation that this is not a legitimate exercise of the criminal law. I have concerns about going too far down that road. Thank you.
The Chair: Anyone else? No.
Honourable senators, is it your pleasure to adopt Senator Cotter’s motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: Do you want a roll call?
Senator Plett: I’m okay on division, unless Senator Batters wants a roll call.
Senator Batters: I would like it.
Mr. Labrosse: The Honourable Senator Jaffer?
Senator Jaffer: Yes.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: No.
Mr. Labrosse: The Honourable Senator Carignan, P.C.?
Senator Carignan: Abstain.
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 Klyne?
Senator Klyne: Yes.
Mr. Labrosse: The Honourable Senator Oudar?
Senator Oudar: Abstain.
Mr. Labrosse: The Honourable Senator Pate?
Senator Pate: Yes.
Mr. Labrosse: The Honourable Senator Plett?
Senator Plett: No.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: Yes.
Mr. Labrosse: The Honourable Senator Tannas?
Senator Tannas: I will abstain.
Mr. Labrosse: Yeas, 7; nays, 2; abstentions, 3.
The Chair: Honourable senators, the motion is carried.
Senator Plett: I will then be withdrawing the last amendment I have.
The Chair: Honourable senators, it is moved by the Honourable Senator Plett that Bill S-15 be amended in the preamble, page 1, at line 4.
Senator Plett: I’m sorry. I thought you heard me say I would be withdrawing that amendment.
The Chair: I apologize. I didn’t hear you.
Are you withdrawing both of them?
Senator Plett: Yes.
The Chair: Honourable senators, shall the preamble carry as amended?
Some Hon. Senators: No.
The Chair: Do you want a roll call?
An Hon. Senator: Yes.
Mr. Labrosse: The Honourable Senator Jaffer?
Senator Jaffer: Yes.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: No.
Mr. Labrosse: The Honourable Senator Carignan, P.C.?
Senator Carignan: No.
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 Klyne?
Senator Klyne: Yes.
Mr. Labrosse: The Honourable Senator Oudar?
Senator Oudar: Abstain.
Mr. Labrosse: The Honourable Senator Pate?
Senator Pate: Yes.
Mr. Labrosse: The Honourable Senator Plett?
Senator Plett: No.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: Yes.
Mr. Labrosse: The Honourable Senator Tannas?
Senator Tannas: Abstain.
Mr. Labrosse: Yeas, 7; nays, 3; abstentions, 2.
The Chair: Shall the title carry, honourable senators?
Does anybody want roll call or on division?
An Hon. Senator: On division.
The Chair: Honourable senators, the title is carried.
Shall the bill carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: Do you want roll call? Okay.
Mr. Labrosse: The Honourable Senator Jaffer?
Senator Jaffer: Yes.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: No.
Mr. Labrosse: The Honourable Senator Carignan, P.C.?
Senator Carignan: No.
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 Klyne?
Senator Klyne: Yes.
Mr. Labrosse: The Honourable Senator Oudar?
Senator Oudar: Yes.
Mr. Labrosse: The Honourable Senator Pate?
Senator Pate: Yes.
Mr. Labrosse: The Honourable Senator Plett?
Senator Plett: No.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: Abstain.
Mr. Labrosse: The Honourable Senator Tannas?
Senator Tannas: Abstain.
Mr. Labrosse: Yeas, 7; nays, 3; abstentions, 2.
The Chair: Honourable senators, the bill is carried.
Is it agreed that the Law Clerk and Parliamentary Counsel be authorized to make necessary technical, grammatical or other required non-substantive changes as a result of the amendments adopted by the committee, in both official languages, including updating cross-references and renumbering of provisions?
Hon. Senators: Agreed.
The Chair: Thank you.
Does the committee wish to consider appending observations to the report?
The first observation is from Senator Dalphond.
Senator Dalphond: Do you want me to read the observation or just to comment upon it?
The Chair: Does anyone need Senator Dalphond to read it?
Some Hon. Senators: Yes.
The Chair: It’s a fairly long observation.
Senator Plett: It’s not that long. While people might not be watching, there might be people who are interested who will go back —
Senator Dalphond: I’m pleased to read it.
[Translation]
Pending review of evidence regarding risks relating to animal cruelty or public safety, including evidence before the Committee, the Committee recommends that the Government of Canada consider as a top priority, the designation, for restrictions under Bill S-15, of non-native big cats (lions, tigers, jaguars, cheetahs, leopards, snow leopards, and clouded leopards) in the context of captivity.
The Committee further recommends that the Government commence consideration of designating, for restrictions under Bill S-15, additional priority wild species in the context of captivity, regarding risks related to animal cruelty or public safety, such as eagles, bears, cougars and medium-sized wild cats, wolves, hyenas, additional primates, and dangerous reptiles, including crocodilians, giant constrictor snakes, and venomous reptiles.
The Committee notes that relevant Indigenous Nations should be consulted in relation to the potential designation, for restrictions in the context of captivity, as regards risks relating to animal cruelty or public safety, of any Canadian wild species.
[English]
This observation really flows from the many witnesses who appeared before us who specifically referred to big cats, such as lions, tigers and leopards. Over 7,000 such big cats are privately owned in Canada.
Senator Batters: Thank you.
I oppose including this observation. First, regarding the first paragraph, there was a little evidence from a few witnesses about big cats being included in this bill. I don’t think there was enough to warrant saying “. . . the Committee recommends that the Government of Canada consider as a top priority . . .” because that really wasn’t something that was before us. For the entire study of this bill, we mostly had in front of us evidence that dealt with elephants and great apes.
Regarding the second paragraph of that observation, which says “The Committee further recommends that . . . additional priority . . . .” be given to these types of animals, I recall almost no evidence — maybe none for some of these species — to include them as requiring the protection that’s included in this bill. When you talk about wolves and hyenas, I don’t recall any information about that, nor about eagles, bears and that sort thing.
Also, I note that one of the species listed is “giant constrictor snakes.” Are there small constrictor snakes that would be okay? I’m not sure about that. There is a lack of specificity in that language.
Then, the third paragraph reads that “The Committee notes that relevant Indigenous Nations . . .” What does that mean? Which Indigenous nations are not relevant for that context? Also, it again references “captivity,” for which there is no definition in the bill, so I’m not sure how many more times we need to include it in other associated elements.
[Translation]
Senator Carignan: I’m not sure what to make of this observation, in the sense that there is no proof. One aspect that was explained to us about cruelty was that monkeys and elephants are very intelligent. Therefore, captivity affects their cognitive abilities and they fall into depression; it’s very hard for them. However, there’s no evidence that this is the case for big cats, eagles or wild cats. There’s no evidence tying cruelty and intelligence together when we’re talking about an animal being held in captivity.
As far as public safety is concerned, we don’t have any proof for that either. It all depends on where the animal is kept. Of course, if you keep a wolf in captivity on a farm or in a residential area, it could pose a problem, but in a zoo, it would be the opposite that would pose a public safety issue, that is, not keeping it in captivity. It seems to me that it’s risky to list animals like that, without context, without scientific analysis, without taking into account where they are or aren’t being kept in order to assess this aspect of public safety. As I said, in many situations, public safety would require keeping them in captivity. I’m going to have to disagree, because of the way this is drafted. I’d like to improve it and try to make it acceptable, but I don’t see how to make it acceptable.
[English]
Senator Plett: I have a few things to say. I will repeat some of what has been said but also have some things of my own.
First, we heard a number of times during the meetings that people had concerns about big cats. I don’t, particularly, but that is really the only problem we heard: Big cats needed to be included.
Then we get to the Noah’s Clause. I’m not sure why we need to include any more animals. The Noah’s Clause already includes every animal on the face of the earth, but we are saying, “Let’s pay special attention to these when they come off the ark; let’s give them more attention than we give others.”
How many animals do we need to list? I’m sure there are a few animals here that Senator Dalphond forgot. They might take exception to this.
Eagles, bears and cougars — who mentioned they were a problem? Big cats were talked about.
We have every animal included. Again, as Senator Batters said, this last paragraph says “. . . relevant Indigenous Nations should be consulted . . .” Some Indigenous nation will say it wasn’t consulted. Maybe we must list which Indigenous nations are relevant.
This observation is wild but does nothing. I absolutely oppose it, and I hope the rest of the committee will see that this is not necessary at all. Thank you.
Senator Klyne: With respect to Senator Dalphond’s observation, the wild species named in this text are based on evidence that was before this committee. This includes two reports of World Animal Protection Canada regarding exotic pets and roadside zoos in Canada; the scientific evidence of Dr. Bob Jacobs, Dr. Lori Marino and Dr. Jake Veasey; and a written brief from the Jane Goodall Institute of Canada and nine leading zoos and animal welfare NGOs. I also note that an alliance of coastal First Nation in northern B.C. has endorsed legal protection for several species on this list, including bears, wolves, cougars and birds living in their territory such as bald eagles.
Beyond this, let’s rely on common knowledge, being like the legal concept of judicial notice, that these are obviously wild species with risks as regards animal cruelty and public safety. This observation speaks only of dangerous species, such as large predators, and species with significant social or spatial requirements.
In including the reference to eagles, I understand that former Senator Sinclair has expressed sadness at once seeing an eagle chained and caged in a zoo. We are all aware of the eagle’s significance to many First Nations.
With respect to giant constrictor snakes, this would include, for example, boa constrictors, anacondas and pythons growing over three metres. The domestication restriction is in place in Toronto bylaws.
Also, “. . . relevant Indigenous Nations . . .” refers to nations with the species in their territory. For example, polar bears are not present in all regions.
Senator Plett: Why aren’t wild boars among these species? They’re a pretty dangerous animal.
Senator Klyne: Committee and senators, I would ask that you please support this observation, in part to honour our friend and former colleague Murray Sinclair, whose vision this bill fulfills, including through amendments supported by this committee. Thank you.
Senator Tannas: I don’t think I was here for all of the testimony, but I certainly was for most of it. I agree that we heard a lot from a lot of folks on big cats.
I supported the Noah’s Clause with the more onerous and detailed steps that the minister had to take to arrive at a decision involving consultation, with a lot of noise and after saying, “Hey, we’re coming for this particular species.” Our advice on what should be included should be limited to really compelling testimony that we heard from a broad range of people.
Senator Dalphond, I’d be far more comfortable if we took out the middle section. That’s where the minister has to do the due diligence. These are going to be the next sensitive steps, if he or she wants to take them — it is going to require a lot.
Why would we pass judgment based on what we heard? The laundry list of animals that we didn’t hear very much about should be something that — I’d hate for a minister to say that they relied on the Senate Legal Committee because we said, supposedly based on a lot of testimony and expertise, that those animals should be next.
I wonder if Senator Dalphond would consider taking the middle paragraph out. I’d be happier.
Senator Dalphond: Listening to you, Senator Tannas, I would be inclined to agree. The first paragraph is the compelling evidence we have about these roadside zoos that have big cats. We had many witnesses testify about these big cats.
On the second paragraph, your comments make good sense. If it pleases the committee, I will withdraw the middle paragraph.
The Chair: Is it the middle or the last paragraph?
Senator Dalphond: The middle one. The second of the three paragraphs.
The Chair: Senators, does anyone want clarification on that?
Senator Simons: If we’re taking out the second paragraph, then the third paragraph is also unnecessary — though I might say that we did hear evidence about crocodilians, giant constrictor snakes and venomous reptiles. We could consider saving that section, but I’m happy, for the sake of getting this observation done and dusted, to retain only the first paragraph.
Senator Cotter: I’m entirely in agreement with Senator Tannas’s observation and intervention. In some respects, they go together. I was going to abstain with respect to the whole package. I would probably support the point that focuses somewhat on big cats. If the government moves toward considering Canada’s wild species, it’s not unreasonable for Indigenous nations to be consulted.
I’d invite Senator Dalphond to take out the word “relevant” in the first line, as Senator Batters pointed out. I don’t know which ones would be irrelevant.
However, if we were to adopt Senator Tannas’s observation, we should say in this one that “. . . the Committee recommends that the Government consider as a top priority, subject to paragraph 2 . . .” It would be a serious mistake, if we’re going to urge further consideration of other designated animals, to not have that done in the context of the significance to those animals, what their future looks like and how that will be managed going forward.
I would be comfortable with all of this; however, we have had a curious development of this legislation where we, as I understand it, started with elephants and great apes, then arrived at all designated species. Frankly, it isn’t clear to me whether the government supports that addition. To now tell them to move with haste with respect to those seems to be a climbing up or climbing down in a certain way. I’d like to at least see that limited and done in consideration of what Senator Tannas recommends here.
Senator Tannas: I have one more thing with respect to consultation, because in Senator Plett’s amendment, it talks about how the minister has to consult with representatives or groups that hold an Aboriginal or treaty right recognized —
Senator Carignan: It’s in the bill now.
Senator Tannas: It’s in the bill. Exactly. We can make the observation, but it’s already in law. We put it there.
Senator Dalphond: The constitutional obligation is there. Section 35 is there. There is a provision in the bill, and there is the Interpretation Act, which we have amended. I don’t know how many times I have to say it. I am happy to remove the third paragraph, bring a consensus on the first paragraph and add into the third line the words “as top priority, subject to —”
Senator Cotter: Maybe “subject to observation number 2.” It’s a bit awkward and contingent, because we haven’t looked at Senator Tannas’s, but if there is a bit of a consensus along those lines —
Senator Dalphond: We will add the words “subject to the adoption of his observation.”
Senator Cotter: Why don’t we say, Senator Dalphond, “subject to observation number 2,” and if it turns out we don’t adopt Senator Tannas’s, we’ll go back and fix this one? Is that suitable, Senator Tannas?
Senator Tannas: Yes.
The Chair: Just for clarification for the clerk and myself, we only have paragraph 1, are removing paragraphs 2 and 3 and are adding “subject to review —”
Senator Dalphond: “Observation number 2.”
The Chair: “Observation number 2.”
Senators, do you want roll call or on division?
Senator Plett: No. I want to know what we’re voting on. First, I want to say for the record that even considering this amendment demonstrates, colleagues, what both our officials and I said a while ago — namely, how significantly the scope of this bill has expanded from what it was. We are already talking about a different bill.
An Hon. Senator: It’s an observation.
Senator Plett: I don’t care what it is.
Senator Dalphond: For the sake of Senator Plett, perhaps I can read it.
Senator Plett: I want to read what you are now proposing. I’m hearing that we will go to Senator Tannas’s observation first and then come back to yours, and I’m not sure. I heard Senator Simons talking about taking something else out and couldn’t figure out what that was. I really don’t know what we’re voting on.
Senator Dalphond: That’s a fair comment. Do you have before you the three observations?
Senator Plett: I have your observation here.
Senator Dalphond: Yes. The first paragraph stays except on the third line, where, after “as a top priority,” we will add, “subject to observation number 2.” The rest stays there. The second paragraph is deleted. The third paragraph is deleted. If I correctly remember your comments at previous hearings, Senator Plett, you were already inclined to protect big cats. You said that’s why you had no difficulty with that. I’m trying to build a consensus here, not divide —
Senator Plett: First, I appreciate you trying to build a consensus. Thank you for that. I don’t think I said that I was okay with the big cats staying in there. I said most of the witnesses came here with evidence regarding big cats.
I won’t debate or argue this any longer; however, I have to vote against it because I oppose the entire bill and this observation. Again, I want to cooperate. If Senator Batters would like a roll call on this, I’m okay with that, and I’m okay with opposing this on division.
[Translation]
Senator Oudar: If the paragraph regarding consultation with Indigenous peoples is amended or removed, I will withdraw my comment.
I wasn’t here at the beginning, but I’d like to remind you that, in Bill S-241 tabled in 2022, the provision concerning the rights of Indigenous peoples was very different. In fact, this is not just about consultation. Section 35 of the Constitution Act, 1982 must apply, and it actually takes precedence. Clause 17 of Bill S-241 read as follows:
The provisions enacted by this Act are to be construed as upholding the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982 and not as abrogating or derogating from them.
This is the same principle that must continue to be applied in Bill S-15. That’s what we agreed on.
That was the comment I wanted to make. If the paragraph is withdrawn, I have no further comment to make, but I think we need to remember the history of this provision and go back to the basics with regard to the rights of Indigenous peoples.
The Chair: That’s important, thank you.
[English]
Senator Plett: Chair, I have a brief comment or observation. I would like to suggest that we go to Senator Tannas’s amendment first, because Senator Dalphond is saying, “subject to Senator Tannas’s amendment passing,” when we don’t know whether Senator Tannas’s amendment will pass. Would it not make more sense to first vote on Senator Tannas’s amendment? If it passes, then we can deal with yours. If it doesn’t pass, then we have to deal with it in a different way.
Senator Carignan: Senator Plett took my question. It was the same point.
The Chair: Senators, we will go to OBS_04_TANNAS.
Senator Tannas: I have one here that says, “Tannas Observation (inclusion of big cats).” That one is withdrawn. I don’t have the numbers on it. Get rid of 03. It is 04 that would apply, the acceptance of the Noah’s Clause.
The Chair: Senators, is everybody clear? It’s OBS_04_Tannas; 03 has been withdrawn. Is that right, senator?
Senator Tannas: Yes. Thank you.
This observation is meant to encapsulate the concern that I put forward with respect to if and when the government moves on the population of captive big cats. We heard 7,000 as the number of big cats that are out there in various forms of captivity.
Knowing that thousands of them could suddenly be found to be illegal — not saleable, exportable or available to generate any revenue — essentially guides us to what will happen to those animals. I would suggest that the majority of Canadians that poll against captivity would poll strongly against a mass slaughter of captive animals to solve the problem.
This is a problem that needs to be addressed. We heard testimony, when I put it to the two expert witnesses Dr. Quinn and Mr. DeJong, that this is a future problem that no one has given the appropriate amount of thought to and that Canada’s zoos are best placed to be part of the answer to the logistics problem.
It’s really a warning that this needs to be considered. A transition plan needs to be considered because of the sheer number of these animals and the potential, if it happens suddenly, for them to be slaughtered because there is no other alternative for the owners — or the best financial alternative is to slaughter them for whatever trinkets and medicines that would generate money.
That’s the observation. I’ll read it into the record, if that’s okay.
The Chair: If you want to do so.
Senator Tannas: It states:
With the addition of amendments related to Noah’s Clause in 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, that could lead to new provisions relating to the regulation of big cat captivity in the bill, it is imperative the Government of Canada urgently start creating a plan that would guide, facilitate, and aid the efforts of those on the ground making this transition. The plan must be clear, concise and in place before the provisions in the bill take effect. The Government of Canada, among other things, must consider the costs associated with the transition, the interruption of various business models and the government sanctioned stigmatization of the ownership of big cats — all of which, combined, are likely to lead to a huge dislocation of these animals. The absence of a plan in place as these provisions in the bill come into effect will inevitably lead to disproportionately more acts of cruelty towards these animals.
The committee notes, the Government of Canada’s strongest allies in this transition will be zoos and aquariums, and in fact, witnesses agree that a transition plan for big cats would be necessary. As such, their inclusion in the creation of the plan is essential.
The Chair: May I ask the officials if they have anything to say on this observation?
Ms. Lane: With respect to the provision, it’s hard for us to speak because, as indicated, the government’s position on this has not been disclosed. However, in any sort of regulatory process where we are proposing that additional rules should apply to a particular sector, analyses are done and publicized in the form of Canada Gazette publications, and consultations take place before that. Generally, there are expectations from central government agencies that plans be in place and an analysis of potential implications regarding costs and benefits of any particular regulation be performed.
With respect to what is being proposed, there will be analysis associated with costs associated with the transition and the effects on business, as well as consultation.
The Chair: Thank you. Is there anybody else that wishes to speak on this amendment?
Senator Dalphond: I must say that completes the first observation I proposed very well. It’s on big cats. It follows nicely. I fully agree.
The Chair: But you don’t now need to say “subject to” if it’s been approved, correct?
Anybody else?
Senator Clement: My only comment here is about having it in place before the provisions in the bill take effect. I’m wondering if Senator Tannas is contemplating that the plan has to be in place before, so the bill cannot come into effect without that. I know this is an observation, but I’m wondering about your intent there.
Senator Tannas: That’s a good question. No. We’re talking about if the minister were to exercise these provisions for the designation. I don’t think it needs to be in effect when the bill comes into effect, just when the power of the minister to designate and their intention to use the provisions does.
Senator Clement: Right. Got it. Thank you, senator.
Senator Plett: This isn’t in the bill. This is an observation for big cats. Big cats aren’t included in the bill.
Senator Cotter: I still think that Senator Dalphond’s urging of a top priority be considered, subject to Senator Tannas’s observation that a plan must be in place. I have confidence the government is not going to be doing something profoundly stupid here. However, it wouldn’t hurt for us to communicate the message that plans for the consideration of these animals should be in place before Senator Dalphond’s paragraph 1 is implemented. With the words “Subject to —”
Senator Dalphond: Subject to the business of the additions you proposed.
Senator Cotter: “Subject to paragraph 2,” or whatever Senator Tannas’s —
Senator Dalphond: We can include the number. “Subject to the following paragraph” and then whatever it is.
Senator Batters: I agree with Senator Cotter. Senator Dalphond’s observation should still say “subject to observation 2,” and my take on the whole phrase with respect to Senator Tannas’s “. . . before the provisions in the bill take effect . . .” was it pertained precisely to when one of these types of animals is designated by the cabinet.
The Chair: Would you like to add that? Is that what you’re saying?
Senator Batters: It’s already in there. I just wanted to explain that, contrary to the concerns raised earlier, I’m fine with the wording in Senator Tannas’s observation as it exists right now.
The Chair: Anyone else? I don’t see any other hands.
Honourable senators, is it agreed to pass Senator Tannas’s observation?
Hon. Senators: Agreed.
The Chair: Everybody agrees.
Back to Senator Dalphond’s observation. We have to vote.
Senator Dalphond: Then the words I had, “subject to this observation being adopted,” become effective.
The Chair: We haven’t voted on it. Do we agree to Senator Dalphond’s observation?
Senator Batters: On division.
The Chair: Okay. Now we go to Senator Pate’s observation.
Senator Pate: This will be an observation that many in the frequent flyer audience will be familiar with. I’ll read it into the record:
The committee has repeatedly raised concerns that the Criminal Code has been amended in a piecemeal manner for many decades and has become cumbersome, sometimes repetitive or inconsistent, and is in need of comprehensive reform (see, for instance, the committee’s 2017 report Delaying Justice is Denying Justice at pages 41 to 43). The committee repeats its past recommendation that an independent body should undertake a comprehensive review of the Criminal Code. The newly revived Law Commission of Canada could undertake such a review.
Senator Plett: I would agree with Senator Pate that this should be in every bill that the government brings forward, but it isn’t. It’s entirely unrelated to this bill. For that reason, I would oppose it. I don’t oppose the general observation that she made. However, it’s clearly not related to the bill, so I don’t know why we would have this observation in there.
Senator Pate: There are some amendments to the Criminal Code. That’s why.
The Chair: Anyone else?
Senator Simons: We should adopt Senator Plett’s recommendation and add it every time we have a Criminal Code amendment that comes piecemeal in the budget bill or what have you. It is bizarre.
The Chair: Okay. Is it agreed that Senator Pate’s observation is accepted?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
An Hon. Senator: On division.
Senator Plett: No. This is so silly. I want a roll call on this. This makes no sense. It has nothing to do with this bill. Why would we even consider it? I at least want to be on the record saying we’re talking about Bill S-15.
Senator Pate: It amends Criminal Code provisions.
Mr. Labrosse: The Honourable Senator Jaffer?
Senator Jaffer: Yes.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: No.
Mr. Labrosse: The Honourable Senator Carignan, P.C.?
Senator Carignan: Abstain.
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 Klyne?
Senator Klyne: Yes.
Mr. Labrosse: The Honourable Senator Oudar?
Senator Oudar: Yes.
Mr. Labrosse: The Honourable Senator Pate?
Senator Pate: Yes.
Mr. Labrosse: The Honourable Senator Plett?
Senator Plett: Let me think about it. No.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: Yes.
Mr. Labrosse: The Honourable Senator Tannas?
Senator Tannas: Yes.
Mr. Labrosse: Yeas, 9; nays, 2; abstentions, 1.
The Chair: Senator Pate’s observation has been agreed on.
Senators, there are some housekeeping matters that must be dealt with. Is it agreed that the Subcommittee on Agenda and Procedure be empowered to approve the final version of the observations being appended to the report in both official languages, taking into consideration today’s discussion, and with any necessary editorial, grammatical or translation changes, as required?
Senator Plett: The rest is only housekeeping, I trust.
The Chair: Okay. Yes. Agreed?
Hon. Senators: Agreed.
The Chair: Is it agreed that I report this bill, as amended, with observations, to the Senate, in both official languages?
Hon. Senators: Agreed.
The Chair: That’s it.
Senators, I want to thank every one of you. You’ve been very patient. This has not been an easy exercise. Thanks for your patience and your commitment to this bill.
To the officials, you’ve been very diligent in coming here and giving us good advice. We truly appreciate it.
Senator Dalphond: Madam Chair, I ask for your indulgence. I would like to say a few words.
This is the last time you’re chairing this committee. Over the last six years, I’ve had the pleasure of working with you on this committee. I would like to acknowledge your contributions to the work of this committee and say that you will be missed as our chair and our colleague. Thank you.
Hon. Senators: Hear, hear.
Senator Batters: Thank you, chair. Senator Jaffer, I’m very pleased to add my voice to that too. I have been on this committee since I came to the Senate 11 years ago, and you have been on the committee throughout that time. It’s been a pleasure to work with you, particularly during the last number of years when I’ve been on steering and serving as deputy chair. I thank you for your service to Canada, the Senate and this committee. Your legal expertise has forwarded the interests of Canada many times. Thank you for all of your service. I wish you all of the best in the future.
The Chair: Thank you.
Senators, I want to say to you that this was one committee I wanted to be part of since the day I came. I’ve really enjoyed working with each and every one of you. I will really miss you.
Thank you for all your support and for always being there to offer me good advice. Thank you, senators.
(The committee adjourned.)