THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, April 10, 2024
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:15 p.m. [ET] to consider Bill S-15, An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act.
Senator Mobina S. B. Jaffer (Chair) in the chair.
[English]
The Chair: Welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. I am Senator Jaffer, chair of the committee. Senators will introduce themselves, starting with the deputy chair.
Senator Batters: Senator Denise Batters, Saskatchewan.
[Translation]
Senator Carignan: Good afternoon. Claude Carignan from Quebec.
[English]
Senator Plett: Senator Don Plett. I’m from Manitoba.
[Translation]
Senator Oudar: Manuelle Oudar from Quebec.
[English]
Senator Sorensen: Karen Sorensen, Alberta.
Senator Klyne: Welcome. Marty Klyne from Saskatchewan, Treaty 4 territory.
Senator Prosper: P. J. Prosper, Nova Scotia.
Senator Simons: Paula Simons, Alberta, Treaty 6 territory.
Senator McBean: Marnie McBean, Ontario.
Senator Cotter: I’m Brent Cotter, senator from Saskatchewan.
Senator Boyer: Yvonne Boyer, Ontario.
[Translation]
Senator Gold: Marc Gold from Quebec.
[English]
The Chair: Honourable senators, we are meeting to begin our study of Bill S-15, An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and lnterprovincial Trade Act.
For our first panel, and appearing for the first time before the Standing Senate Committee on Legal and Constitutional Affairs, is the Honourable Steven Guilbeault, Minister of Environment and Climate Change. Welcome, minister. It’s a real pleasure to have you here today. We will start with your remarks.
I forgot to mention that the minister is joined by his officials from Environment and Climate Change Canada: Julien Landry, Legislative Policy Manager, Legislative Governance; Stephanie Lane, Executive Director, Legislative Governance; and Carolina Caceres, Director, International Biodiversity Policy. From the Department of Justice Canada, Robert Brookfield, Director General and Senior General Counsel, Criminal Law Policy Section; and Aleksander Godlewski, Counsel, Criminal Law Policy Section.
Welcome all of you, and thank you for joining us.
The Honourable Steven Guilbeault, P.C., M.P., Minister of Environment and Climate Change, Environment and Climate Change Canada: Honourable senators, thank you for the invitation to discuss 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.
It is no question that Canadians care deeply about animals — domestic pets but also wild animals. Our government has taken action to strengthen the protection of animals across Canada because Canadians want this but also because it’s the right thing to do. For example, we are taking major steps toward reducing reliance on animal testing for toxic substances, we banned the use of animals in testing cosmetics, we strengthened protections for animals by broadening the scope of bestiality and animal fighting offences and have taken steps to end the captivity of cetaceans following the ratification of a Senate bill.
[Translation]
Recently, our government introduced regulatory measures that significantly restrict the import and export of raw elephant ivory and raw rhinoceros horn except in very limited circumstances, some of the most stringent in the world. These actions demonstrate Canada’s commitment to protecting animals, and protecting, conserving, and enhancing biodiversity here and around the world. Despite this progress, the government recognizes that further action is needed to protect wild animals in captivity in Canada. That is why the government introduced Bill S-15 in the Senate on November 21, 2023. Bill S-15 would amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, or WAPPRIITA, to gradually phase out the captivity of elephants and great apes in Canada, except in limited circumstances.
[English]
Alongside Bill S-15, Environment and Climate Change Canada will be leading national engagement with provinces, territories, Indigenous peoples, experts and stakeholders to discuss a range of issues related to animals in captivity in Canada.
The purpose of this national engagement will be to collaborate to identify gaps in animal welfare protection and public safety and to encourage improvements in the standards for wild animal captivity across the country while respecting provincial and territorial jurisdiction.
As you may know, jurisdiction over animals in captivity is shared among the federal, provincial and territorial governments. Canadian provinces and territories have primary responsibility for regulating zoos and protecting animal welfare. All provinces and territories have animal protection laws, and most regulate the captivity of wild animals by private individuals and zoos, including by setting standards for their care. Federal criminal laws that protect animals primarily focus on the prevention of cruelty. This is exactly what Bill S-15 aims to do.
[Translation]
The approach taken under Bill S-15 to protect elephants and great apes takes a similar approach to the existing regime that prohibits the captivity of whales and dolphins in Canada. In 2019, Parliament banned cetacean captivity on the basis that it is cruel due to their high cognitive abilities, social structure, and the adverse physical and mental effects of captivity on these creatures.
Through Bill S-15, the Government of Canada has chosen to build on this approach to protect certain animals that should not be kept in captivity for purely private, entertainment, or public display purposes. The national engagement will ensure that broader issues related to the wellbeing of animals in captivity are addressed by building on existing federal and provincial roles.
Evolving public opinion and, importantly, the scientific evidence tells us that elephants and great apes should not be kept in captivity, outside of limited and specific circumstances, because of the cruelty it represents. Like cetaceans, elephants and great apes demonstrate multiple negative welfare indicators when kept in captivity, including both physical health issues and signs of psychological distress.
For example, because they are long-lived, highly cognitive, and an intrinsically social species, elephants and great apes have a unique combination of characteristics that make them more likely than other animals to face psychological distress in captivity. As a result, they often suffer from severe mental health disorders, including pathological aggression, self-mutilation, and depression-like behaviours.
[English]
It is essential that we act to protect elephants and great apes as Parliament did for cetaceans in 2019. Bill S-15 would make it an offence under the Criminal Code of Canada to possess, breed, impregnate or fail to take responsible measures to prevent the natural breeding of an elephant or great ape that is kept in captivity. A variety of activities associated with the use of these animals for entertainment in a performance, such as when they are forced to perform tricks or give rides, would also be prohibited without exception. However, this prohibition would not ban public observation of these animals’ natural behaviour or practices required for their care when they are otherwise legally held.
Bill S-15 intends to gradually phase out captivity by exempting elephants and great apes that are currently kept in zoos as well as their offspring if they are pregnant at the time the bill comes into force. In other words, existing captivity of elephants and great apes in Canada will be allowed to continue, but new captivity, breeding, import or export will stop except for in limited, authorized circumstances.
It is important to recognize the role that Canadian zoos can play in the study and conservation of wild animals. This is why, under Bill S-15, the federal government — or provincial and territorial governments — would be able to authorize new captivity or breeding of elephants or great apes in connection with scientific research or conservation programs. This will ensure that zoos can continue their valuable contributions to conservation and scientific research while gradually phasing out the captivity of elephants and great apes for purely private entertainment or public display purposes.
There may also be circumstances where captivity is in the best interests of an animal’s welfare. The federal government and provincial or territorial governments would be able to authorize new captivity on this basis as well. These exemptions are intended to capture the small number of situations where the captivity of these animals can be justified by a compelling purpose. But, to make it clear, in general, these animals should not be kept in captivity.
Alongside the Criminal Code, Bill S-15 would make several amendments to the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, or WAPPRIITA. One of the main purposes of those amendments is to control the international exchange of species listed in the Convention on International Trade in Endangered Species of Wild Fauna and Flora, or CITES.
Elephant and great ape populations are almost all listed on Appendix I of CITES, the highest protection afforded under the convention. This means that to support the conservation of these animals, the import and export of elephants and great apes is already prohibited unless permitted. Currently, when issuing permits under the WAPPRIITA — fortunately I don’t have to say that too often in this speech — the Minister of Environment and Climate Change determines whether the import or export is allowed under CITES. Bill S-15 would add an additional requirement that each import or export of living elephants and great apes must be in connection with a scientific research or conservation program or be in the best interests of the animal’s welfare. This ensures that Canada continues to deliver on its international commitments regarding the protection of endangered species while also enabling the phase-out of elephants and great apes in captivity in Canada.
Bill S-15 would also amend WAPPRIITA to require an individual who possesses elephants or great apes at coming into force to notify me, as the responsible federal minister, that they have these animals. This would allow Environment and Climate Change Canada to establish accurate data regarding all elephants and great apes in captivity and enable law enforcement personnel to distinguish between animals that are exempt from those that are not.
[Translation]
Bill S-15 is only part of the equation to protecting wild animals in captivity; more work needs to be done. As jurisdiction over animals in captivity is shared among the federal, provincial, and territorial governments, this work is a shared responsibility.
Honourable senators, we must continue to work together to protect wild animals. As we know, they don’t have a voice in Parliament, and thus we need to do the right thing and act in their best interest. By gradually phasing out the captivity of elephants and great apes, Bill S-15 takes a step towards this goal.
I look forward to answering your questions and working with the Senate to ensure that these animals are afforded the protection they deserve.
Thank you.
[English]
The Chair: Minister, thank you for your presentation. I come from Africa — Uganda — and I have seen the destruction to elephant herds when elephants and apes are captured to be sent to other countries, so I laud you for this bill.
We will start with the sponsor of the bill, Senator Klyne.
Senator Klyne: Question for the minister, and welcome, again, and thank you for being here this evening.
Minister, following Parliament’s adoption of laws in 2019 to protect whales and dolphins from the harms of captivity, the government has introduced Bill S-15 in relation to elephants and great apes. Many scientists view these species as being of special welfare concern in captivity due to their self-awareness, intelligence, emotions, social ability and complex needs.
With elephants, we also see significant evidence of harms in captivity, as per the letters elephant experts have submitted to me. You also cited in your remarks that Appendix I of CITES already lays out some protection for elephants.
My question is: Why does the government view captive elephants and great apes as priority species for legal protection?
Mr. Guilbeault: Thank you, senator, for the question.
I believe that public policies should be guided by science, and there is a growing body of scientific evidence pointing to the fact that, in the case of great apes and elephants, captivity is equal to cruelty for many of the reasons I have outlined in my introductory remarks but also because of the fact that they have high cognitive capabilities, high social skills and longevity.
I would be happy to share them with this committee, but we have a number of scientific articles that point to the fact that these animals are not meant to live in captivity. Therefore, it was a commitment that we made in 2021 to Canadians in the election that we would do that. For all of those reasons, we’re making good on our promise.
Senator Klyne: For the benefit of the committee, could you send the articles to the clerk?
Mr. Guilbeault: Yes, absolutely.
Senator Klyne: Thank you.
The Chair: We will now go to the critic, Senator Plett.
Senator Plett: Welcome, minister. Minister, many of us would not disagree with most of what you are saying is the intent. I think the disagreement is that we sometimes don’t agree on the path forward, not on the end goal. The chair already mentioned about the cruelty of shipping elephants and exporting and importing elephants, but, of course, that’s already against the law. So we’re not dealing with that. It’s been against the law for many years, and nobody is doing that.
The bill’s sponsor, Senator Klyne — and, indeed, Jane Goodall herself — have told us that the great apes in Canada live in excellent institutions. In addition to that, all but one facility in Canada housing elephants do not breed their elephants. Therefore, they, of course, will either die or be moved to a different facility, but, certainly, they aren’t breeding them. They aren’t planning on breeding any. The one institution that does breed, of course, has a lot of room, and they do breed for conservation and research capabilities.
Can you explain to me what the real-world problem is that this legislation is solving? I understand — and you said — that in 2021, you made some commitments and you are following through with those. I’m just a little bit at odds as to what the bill is actually doing that isn’t being done already other than creating, possibly, another level of bureaucracy as far as obtaining permits is concerned.
Mr. Guilbeault: Thank you for the question, senator. I wasn’t privy to the comments made by Senator Klyne or Jane Goodall that you referred to, but we were both at the event organized by Senator Klyne a bit earlier today where she did say that she doesn’t think any animal should be in captivity.
The purpose of the bill is to phase out the captivity of elephants and great apes in Canada. Without that bill, it would be possible for certain institutions to continue doing that. It would be under a certain number of conditions, but it would still be possible for them to continue doing that. The bill will make it so that, over time, this will be phased out until those animals are no longer in captivity — except, as I said in my remarks, under very specific circumstances.
Senator Plett: Thank you, minister. Those very specific circumstances would be for conservation and research purposes, among others.
If the bill became law now and there were no more breeding of elephants for any reason, it would, of course, take 60‑some years until the last elephant — a very social being, as we all agree — slowly died a death by himself or herself 60 years from now.
Again, in reference to the chair and African elephants, most African elephants live on reserves. They aren’t out in the wild. If they leave the reserve, they probably get hunted and shot. There are poachers. The legs get cut off and organs are harvested. So they are on reserves.
We talk about captivity — and you are right; we were at the Jane Goodall event, and she said that no animal should be in captivity. Her favourite animal was a dog. She referred to rats. Rats are kept in captivity in order to do what she said they were supposed to do, and that is hunt land mines. Regarding dogs, we see people keep Saint Bernards and Great Danes in 900-square-foot condos. Really, the only facility in Canada that has elephants in human care — I guess I wouldn’t call that captivity when they are on a 300-acre piece of land, roaming around freely and having the ability to go into a wonderful, large facility if they choose. They can be out there in the bush and in the pasture land, eating apples off the tree themselves. I wouldn’t call that captivity.
So what’s the difference, minister, between a reserve in Africa that may be a little larger and a reserve in Canada?
Mr. Guilbeault: Thank you for the question, senator.
I’m quoting this from memory. If it’s not accurate, we’ll certainly provide the correct information to the committee. From memory, if you look at Kruger National Park in South Africa, it’s about 22,000 square kilometres versus 300 acres for the one you mentioned. You can see the difference. There are — as the chair would know — numerous, very large reserves in Africa in many different countries where the status of these animals is highly protected. I have had the pleasure — not as Minister of the Environment, but in my past life — of visiting some of them. In terms of scale, there is a very big difference.
There is also, obviously, a climatic difference. Elephants and many animals that are kept in captivity in Canada can, in certain circumstances in our country, roam a bit in limited enclosures. However, they will have to be brought inside for winter. They are not meant to resist our winters. During the winter, the living conditions of these animals are much more constrained in terms of space than what it is in the summertime, which is not something we would see in Africa where these animals are originally from.
These are a number of the important differences between the living conditions here and living conditions in reserves and national parks in Africa.
Senator Plett: I don’t want to get into a debate, minister. That’s not the idea here. I’m here to ask, you are here to answer and you are doing that. On that note, however, having thousands of elephants in a large area or having 19 elephants in a bit of a smaller area is kind of the same thing.
We’re going to hear from experts later who say these elephants in Hamilton are, in fact, doing much better in the cold than they are in the heat because of flies, mosquitoes and different types of insects. Of course, they have all been born in Canada and are acclimatized as a result of that just like anybody else would be.
That’s a comment, minister, and doesn’t require a response. Thank you. If there is a second round, chair, please —
The Chair: I’ll put you on second round.
We’ll now go to the deputy chair of the committee, Senator Batters.
Senator Batters: Minister Guilbeault, I find your legislative priorities to be curious. You have chosen to spend considerable time and effort by your department and the legislative drafters of the Department of Justice on this bill, Bill S-15. You prioritized this bill that deals with elephants and great apes, and — as has just been discussed — they are already robustly protected in Canada. Meanwhile, six months ago, the Supreme Court of Canada ruled that the vast majority of Bill C-69 and the entirety of its regulations are unconstitutional. The act has almost 200 sections, and the Supreme Court found only 10 sections to be acceptable.
Minister, six months ago, you then immediately tried to dismiss that Supreme Court decision as an “opinion.” Since you’re at the Senate Legal Committee today, minister, I’ll inform you that the Supreme Court of Canada’s decisions on references are significant, not mere opinions.
In October, you made the following statements about your required huge overhaul of the largely unconstitutional Bill C-69: “We are committed to address this promptly . . . ”; “We will . . . work quickly to improve the legislation through Parliament”; and “There is a need to move swiftly . . . .”
Minister, why have you decided to prioritize Bill S-15 on the highly protected elephants and great apes rather than the necessity of completely overhauling Bill C-69 with its massive impact on millions of Canadian people and workers?
Mr. Guilbeault: As I said regarding the Impact Assessment Act of Canada, we will be moving swiftly with amendments. I’m very hopeful that you will see those amendments in the coming weeks.
Senator Batters: Minister, given the fact that the number of elephants and great apes in captivity in Canada is already extremely limited with robust protective measures in place due to current legislation and international agreements like CITES, could you please explain the specific reasons that led the federal government to focus specifically on those two categories of animals in Bill S-15?
Also, what are the specific elements or studies that have led to the identification of elephants and great apes as the only animals requiring additional legislative measures at this specific time despite their limited numbers and already strong protections in Canada?
Mr. Guilbeault: As I said earlier, I would be happy to share some of the scientific literature that inspired Bill S-15. I’d be happy to quote some of them for you right now, but, fundamentally, you ask why those two species. I tried to address that in my opening remarks. Because of the very peculiar nature of these animals — high cognitive functions, longevity and social skills — it puts them in different categories. There’s a body of scientific evidence that points to the fact that keeping these animals in captivity is equal to cruelty.
Maybe as time goes by, we will have more scientific evidence pointing to the fact that that’s the case with other species of animals that are not right now part of Bill S-15. I think it is our role as lawmakers to ensure that we keep up with what science tells us, certainly from an environmental and conservation perspective.
I have in front of me a number of scientific articles that have been published in peer-reviewed scientific journals that talk about these specific elements. Again, I’d be happy to share those, as well as many others, with the committee.
Senator Batters: Thank you. Please share those.
The sponsor of Bill S-15 has said the government is willing to accept amendments to Bill S-15 that reflect parts of Bill S-241 that you did choose to leave out of this bill. I’m wondering if you can give this committee a sense of what amendments you would consider within the scope of this legislation and which amendments you would consider to be out of scope.
I also note that the sponsor, Senator Klyne, provided this committee with a brief last week in which, in his cover letter, he referred to his advocacy for potential amendments to this bill. I find it curious that a sponsor of a government bill is already advocating for amendments.
What would you be willing to accept?
Mr. Guilbeault: I don’t think it’s my place to tell you senators what amendments you should make. I’m a member of the House of Commons, and it’s actually not unusual for governments to bring amendments to their own bills between the time where you elaborate upon a bill and the time it’s tabled. You can learn new things. It would be foolish of us not to do that.
This is now my fourth, fifth or sixth bill, I’m not sure, since 2019 that I’ve introduced into the House or here in the Senate, and it’s common practice for us to bring amendments.
My message to you is that the government is very open to amendments that senators would see fit to bring to this bill.
Senator Batters: I was just going to say that, generally, the amendments the government brings are technical in nature, not wide-ranging.
[Translation]
Senator Dalphond: I note that the minister is open to amendments if they seem reasonable. Having said that, minister, we now know that Granby Zoo and Edmonton Valley Zoo are among major Canadian zoos having decided they would no longer keep elephants in captivity. Toronto Zoo and Calgary Zoo also announced plans to phase out captive elephants. In the U.S., more than 20 zoos have announced they will follow suit.
Evidently, the legislation is part of a trend and everyone, including zoo owners, is viewing this as the new normal. Does this eliminate the need for criminalization, to some extent, since a phenomenon seems to be developing internally to move in that direction?
Mr. Guilbeault: First, I’d like to salute the courageous decisions made on a voluntary basis by those Canadian and American zoos. Voluntarism is certainly a desirable thing in our society. Many things are done on a voluntary basis, every day and in all spheres of our society. However, it doesn’t always work. There are always people who decide not to follow these trends.
You are absolutely right, Senator Dalphond, to refer to this as a trend. It reflects the evolution of science and our knowledge. We saw a good example earlier today, in Ms. Goodall’s brief testimony, of the evolution of scientific knowledge of our understanding of animal behaviour. We started out, 50 or 60 years ago, with scientific knowledge in which these animals had no emotions and we couldn’t refer to them as individuals.
All this has evolved a great deal and will continue to evolve. The legislation’s purpose is to ensure that everyone respects minimum standards across the country. That doesn’t prevent those who wish to go further from doing so, but everyone has a minimum standard to meet.
Senator Dalphond: If I understand correctly, there is still a need to ensure that the legislator sends out a powerful signal, not only to show approval of the movement and trends emerging, but also to ensure that those who are reluctant to follow them will have to get on the bandwagon, so to speak?
Mr. Guilbeault: Exactly.
Senator Dalphond: Thank you, minister.
[English]
Senator Prosper: Thank you, minister, for coming before us.
You mentioned earlier some of the unique characteristics of elephants and great apes. You spoke just now with respect to minimum standards in terms of one of the purposes of this bill.
I am curious about the linkage to cruelty. Although it’s a scientific assessment, what unique features go into that definition of “cruelty”? Is it purely science-related? What are the attributes or characteristics that define “cruelty” in this context?
Mr. Guilbeault: Thank you for the question, senator. I’m not an expert on animal behaviour. I’ve outlined some of the elements that put great apes and elephants in a different category.
When it comes to the definition of “cruelty,” I wonder if one of our panellists can help us in terms of a definition. Ms. Lane?
Stephanie Lane, Executive Director, Legislative Governance, Environment and Climate Change Canada: I can begin. I think one of the reasons we’ve spoken about cruelty, particularly in this context, as senators might know, is the linkage with the Criminal Code prohibitions and the need of a moral evil associated with the activity for the Criminal Code prohibitions to apply.
With respect to these particular species, I think the minister has outlined very clearly the evidence we have used in order to base the assessment. I can maybe turn to my colleague Ms. Caceres to speak a bit more about the wildlife side of it.
Carolina Caceres, Director, International Biodiversity Policy, Environment and Climate Change Canada: Thank you.
Indeed, regarding that bar of cruelty, we engaged with veterinary experts who also work in the zoo community. We looked at the weight of evidence in literature as well. Of course, as with any scientific discourse, there are varying opinions, but, overall, the weight of literature suggested that quite a number of biological and ecological factors, as were mentioned, as well as overall performance on welfare indicators suggested this group of species — elephants and great apes — met that bar when kept in captivity.
Senator Prosper: Thank you.
Senator Sorensen: Thank you, minister, for being here.
You made reference to your 2021 mandate letter. You were tasked with the commitment of introducing legislation to protect animals in captivity. Why do you think this specific commitment was included in your mandate letter, understanding that you have many priorities in your portfolio? I’m asking why it has taken three years to get here. I guess I’m asking: Why now? What prompted this at this point in your portfolio?
If I could add — I think this ties in — in 2022, Canada hosted COP 15 in Montreal where, very happily, biodiversity was highlighted and was a major focus, which I, personally, was very happy to see. It was incredible to see Canada advocate for international collaboration on an agreement to protect nature and to work to halt and reverse biodiversity loss worldwide.
Do you feel there’s any tie-in to that legislation in terms of those goals? Can you expand, if you think there is, on how that might be?
Mr. Guilbeault: There are three questions there. First, why did we make that commitment in 2021? For that, I would probably turn to our colleagues at the back of the room who are representing animal rights groups from across the country — Jane Goodall Institute and many others — who inspired us to put this in our platform. I made general reference to a number of scientific articles published in 2020 and 2021. Between organizations talking to us about the importance of doing that and the fact that more and more scientific papers were being published on this very subject, that led us to make that campaign commitment.
Why now? As you rightly pointed out, I have the second-longest mandate letter after the finance minister — those are the instructions the Prime Minister gives to all of his cabinet ministers. There are a lot of things on my plate. We felt that the time was right to move this piece of legislation.
Obviously, Bill S-15 is about preventing animal cruelty, but there is also an obvious link to the very important issue of conservation, which is the link to your third question of COP 15.
COP 15 was supposed to be hosted in China. Because of COVID, it had been delayed again and again. The United Nations turned to Canada and asked us if we would host it. We had a very short window of time to organize it from a logistical perspective. That was a real challenge. Usually a country that will host a conference of parties — whether it’s on climate or biodiversity — will have a year or two to prepare. We had about five months.
Many experts and journalists have referred to the success of COP 15 as the “Paris moment for nature.” That is a statement to the fact that more and more countries — and more and more people — around the world, certainly including Canada, see the importance of working to protect nature and to protect biodiversity. We often talk about the dual crises of climate and nature. The Prime Minister felt it was our responsibility as Canadians to help the international community. That’s why we stepped in.
Senator Simons: Minister, I have two questions, one very specific and one very large. I will put them both in at the front so I don’t get cut off.
Paragraph 22.01(1)(c) of what I’ll call the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act would make breaching the terms and conditions of a licence issued under that act an offence punishable as if those conditions were legislative provisions. Currently, violations of the terms or conditions of the licence can lead to the suspension or cancellation of that licence. In other words, you have an administrative penalty for an administrative offence.
The proposed change, I think one might argue, is quite a dramatic escalation of the potential consequences of rules imposed administratively, rules that will not be decided by parliamentary oversight. I wonder why you think that your power to cancel a permit or licence is not sufficient. That’s question one.
Question two — completely different — we have all been bombarded with emails from people who are worried about big cats. They were initially included in the Jane Goodall act. In the wake of the “Tiger King” series, I think people have been alerted to the crisis of very large cats — lions, tigers and other predators — being kept in roadside zoos or in personal collections. I’m wondering why it was decided to drop all of that from this legislation.
Mr. Guilbeault: As I said earlier, I’m not a legal expert — no, I said I was not an animal behavioural expert. I’m not a legal expert either, but, fortunately, we have one with us, so I would turn to him for the answer to your first question. I will happily answer the second one after.
Robert Brookfield, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: I will cop out slightly in that I am supposed to be here as a criminal expert, not an administrative law expert, but I will say, as a general matter, that it is quite common for there to be administrative provisions that allow for, as you mentioned, removal of permits of various sorts but also to ensure that if that mechanism is not appropriate — because there is a fear that removal might be too late or it might not happen fast enough — to allow offences for violations of the terms and conditions of that permit.
I would suggest — without having done an exhaustive research, and we could certainly provide you with examples if that would be helpful — that this is not out of line with the general practice.
Senator Simons: But this is a potential prison sentence for a violation of an administrative regulation. That seems maybe out of balance.
Mr. Brookfield: If you like, I can certainly do some research, and we can provide some examples that are analogous.
Senator Simons: All right. Thank you very much.
Mr. Guilbeault: In answer to your second question, we decided to, at this point, only include elephants and great apes based on the scientific literature. As Ms. Caceres was saying earlier, as in many other fields of science, different studies will sometimes come to different conclusions, but the body of evidence points to the fact that keeping these animals in captivity is equal to cruelty based on some of the criteria that I’ve spoken about.
We don’t have right now the same body of scientific evidence for — you called them big cats. Science will evolve over time, and there may be a time where it is appropriate to include them. Right now, we didn’t feel we have the scientific basis to do that.
Senator Simons: Right. I wouldn’t put them on the same plane. This is one of those rare moments when I agree with Senator Plett. The status quo for great apes and elephants in Canada is pretty good right now. The status quo for some of these big cats that are being kept in roadside attractions and private collections is not just more unfair to the animal but more dangerous to the general public.
When Senator Sinclair first drafted the Jane Goodall act, it had two very distinct sections. One dealt with great apes and elephants and the other one dealt with large cats and large crocodilians, too, if I recall.
Maybe the better question is: Will there be follow-up legislation that deals with those animals? Or do you feel that’s best left to provincial jurisdiction?
Mr. Guilbeault: As I said in my earlier remarks, this is a shared jurisdiction between provinces, territories and the federal government. I also pointed to the fact that we want to start a dialogue with provinces, territories, experts and civil society organizations on this issue. We may come to the conclusion that something more is needed. I don’t think Bill S-15 is the be-all and end-all of animal rights and captivity in Canada. Again, as I said, we’re open to amendments to this bill should this committee and the Senate feel those are necessary.
Senator Simons: Thank you very much.
[Translation]
Senator Carignan: Minister, I was surprised to see that the government’s priority, when there’s a housing crisis and so much homelessness in Canada, was the habitat of great apes and elephants, but I thought to myself, “Well, that’s the government’s will, so I’ll read, I’ll educate myself and I’ll try to understand the purpose of Bill S-15.”
I understand that you are basing criminal law jurisdiction on cruelty and that keeping great apes or elephants in captivity in Canada is, by nature, an act of cruelty that justifies the use of constitutional jurisdiction in an area of shared jurisdiction. I also understand that this cruelty is particularly serious for great apes and elephants because of their emotional and cognitive intelligence, which is superior to that of other species. Have I correctly understood your testimony, the text you’ve read and that I’ve read, as to the justification for federal Criminal Code jurisdiction over the notion of cruelty?
Mr. Guilbeault: I’d like to say two things. First, I think it’s important for those of us in government to be able to walk, chew gum and even text at the same time.
Of course the housing crisis is a priority for our government, as are affordability issues. That’s not to say that issues like these aren’t important. It’s a commitment we made to Canadians in 2021; it’s in my mandate letter and in the instructions given to me by the Prime Minister.
Furthermore, I think we substantively agree on the second part of your question, which is that we don’t say in the bill — and the scientific literature doesn’t necessarily say — that these animals are superior, but that, because of their cognitive functions, social interactions and longevity, keeping them in captivity is akin to cruelty, which falls under federal law. So, we’re dealing with nuances, but we’re probably very close to agreeing on these issues.
Senator Carignan: This is not pejorative and I don’t want it to be taken lightly, but I’d like to talk to you about pigs. Pigs are among the most intelligent animals on the planet, with both emotional and cognitive intelligence. What’s more, in many categories, they are ranked ahead of elephants and chimpanzees. Yet they’re in captivity. What’s more, they exhibit inappropriate behaviours when in captivity: Often, they bite themselves or self‑mutilate. Because of this, a federal agency under Agriculture and Agri-Food Canada adopted standards: the National Farm Animal Care Council. So, they consulted with provinces and set standards to ensure that this behaviour in captivity doesn’t harm the individual.
The Canadian Council on Animal Care did the same thing for monkeys. I have before me a document containing 100 pages of guidelines on how to keep monkeys in captivity in Canada while ensuring that there is no cruelty.
So, does that mean we should impose a total ban, because your colleagues at the Canadian Council on Animal Care, when they drafted 100 pages of guidelines in April 2019, failed? Since they failed, must we now impose a total ban?
Mr. Guilbeault: I don’t have the document in front of me. If memory serves, those are guidelines. So, to tie in with the answer I gave your colleague Senator Dalphond earlier, it’s all based on voluntarism and goodwill.
I’m sure the vast majority of pig owners comply with these guidelines responsibly, but we regularly see more wayward owners who don’t, hence the importance of having national standards and minimum standards. People can always do more if they want to. It’s not an admission of failure on those guidelines; we want to make sure those national standards are met.
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Senator Boyer: Thank you, Minister Guilbeault, for your testimony.
You may or may not know that I was the Senate sponsor of Bill C-84 in the previous Parliament, which is the bestiality and animal fighting bill, and I am a proud advocate for animal rights. As such, I’m really glad to see the government taking a principled approach and a stance on these issues through the introduction of Bill S-15.
I’m sure you know that Métis, First Nations and Inuit have deep spiritual connections with our animal relatives. How has the government consulted with Indigenous communities on this legislation? Does it have their support? I know you mentioned the national engagement with Indigenous people, but I would like you to expand on that, please.
Mr. Guilbeault: I don’t have the list of organizations we consulted prior to the tabling of the bill, but we could provide that to the committee.
Senator Boyer: Thank you. Does it have Indigenous support?
Mr. Guilbeault: I read the list some time ago. I don’t know if we — it does? Yes, it does, but we will provide the list. I just don’t have it in front of me.
Senator Boyer: And the process of engagement?
Mr. Guilbeault: More generally, senator, I would tell you that as Minister of Environment and Climate Change, it would be difficult for me to think of a week on the job where I don’t meet with Indigenous representatives whether on a conservation project, on climate change or on impact assessments.
We’re now moving into joint impact assessments with either nations or communities when they so desire. It’s not something we impose; it’s something we invite. The large majority of everything we do on conservation projects is Indigenous-led in this country. You can’t come and see me if you want to propose a new conservation project — whether it’s a national park or another form of conservation — if Indigenous people are not at the table from the get-go and are partners in that.
That’s a general answer. We’ll give you the specifics on the consultation for the bill.
Senator Boyer: I’m assuming that also happened with this bill?
Mr. Guilbeault: I think that would be a safe assumption.
Senator Boyer: Thank you.
Senator McBean: Thank you, Minister Guilbeault, and thank you to you and your staff for all the work that you have put into this.
You opened up by saying that it’s the right thing to do to protect animals. You repeated a few times that it is because they are long-lived, highly cognitive, social and they harm themselves in captivity. This is all about preventing animal cruelty, but Bill S-15 leaves the animals that we have in captivity there for the rest of their lives.
Why are you leaving them there when they have these highly complex social needs and lifespans, and now the ones that are remaining — this last generation — they are left to become isolated and lonely? Why does this generation stay when the zoos that we have spoken of so highly have found other larger sanctuaries where the animals can live out a more social life?
Mr. Guilbeault: I share your views, senator. Bill S-15 wouldn’t prevent a zoo from, if possible — the reality is that some of these animals, because they have been in captivity for so long, would not be able to adapt to life in the natural world. But it doesn’t prevent them — as some zoos are doing in Canada voluntarily right now — from finding alternatives for these animals. We want to stop the problem from growing. Basically, that’s what we’re doing.
Senator McBean: Yes.
Mr. Guilbeault: We have a certain number of these animals in captivity, and over time — and in some instances, as Senator Plett was saying earlier, we’re talking decades — we will slowly eliminate the captivity of these animals in Canada.
It’s not always possible to relocate animals that have been in captivity for a long time. Sometimes it is. Sometimes it is not. For us to say we’re not only preventing zoos from acquiring new animals or breeding but that they have to get rid of the ones they have now, I think, in our view, that would have created more problems than it would have solved. I will agree with you; it’s not a perfect situation.
Senator McBean: I live in Toronto, I remember the old Bob Barker — when Toronto shipped our elephants, and it was very sad. I have an eight-year-old daughter, and I love going to the zoo, but the elephants from the Toronto Zoo did get relocated. I’m wondering what the thought process was in saying that this is the last generation and they can stay where they are versus something like if captivity is cruel, is there not a process to figure out where — and I know they can’t go back to the wild.
However, if there are opportunities of more social sanctuaries where, as they become the last of their kind in their environment, they can be socialized. What was the discussion in letting this generation stay versus acknowledging that there has to be some effort — there won’t be a solution for everyone, but maybe that’s the exception when there is nowhere that an animal can go, then that is a better place for it. If captivity is cruel and isolation is crueller, are we not doing them a double disservice?
Mr. Guilbeault: It’s an imperfect situation. I gave you a general answer. Ms. Caceres, I don’t know if you have more specific elements you could provide.
But yes, this was part of the conversation.
Senator McBean: Yes, I get protecting them, but how do we protect the ones we have protected?
Ms. Caceres: I’ll mention two things.
First of all, the bill does have the exemption for import/export for the best interest of the animal. We could evaluate if there is an application to move some existing animals to a sanctuary or another environment in light of that best interest opportunity.
The other point I would make is that this is part of why we envision having national engagements so we could have more in-depth discussions with the appropriate stakeholders on the best way to move forward with the intent of phasing out captivity in Canada.
The Chair: Thank you.
Minister, there are four people who have a question on the second round. Would you kindly consider giving us eight more minutes?
Mr. Guilbeault: Yes.
The Chair: Thank you, minister. We appreciate it.
You have two minutes each, senators.
Senator Plett: Briefly, minister, I again want to emphasize that we all oppose animal cruelty here. I think we’re all on the same page there. We might not always agree on other elements, but I certainly share Senator Simons’ views about big cats in roadside zoos. I would promote us dealing with all roadside zoos in the country to ensure they are great facilities like we have in Toronto, Calgary and at Assiniboine Park Zoo in Winnipeg.
My question goes on the tail end of what Senator Batters asked. I understand, minister, that you have to tell us that you will entertain amendments — that’s a democratic process — but we had a private member’s bill in front of us, Bill S-241, and the government took some time for whatever reason to come up with Bill S-15. Bill S-15 is entirely different than Bill S-241. Clearly, if there will be amendments coming, the sponsor has already said this is a stepping stone to getting Bill S-241 done. He is on record as having said that. Why did you choose, minister, to scale back to the extent that you did from Bill S-241 to this? We all know you were under pressure to do more than what you did.
You brought us Bill S-15. I don’t know if I can support it, but it’s not a horrible bill. I have said —
Mr. Guilbeault: I’ll take that as a compliment, senator.
Senator Plett: Take it as a compliment, minister.
Why did you scale back so much? You took Bill S-241 and brought us Bill S-15.
Mr. Guilbeault: Again, the rationale behind Bill S-15 and focusing our efforts on elephants and great apes are based on the science. If the senators find other pieces of scientific evidence that point to a direction where we should be doing more and including more animals, we will be very open to receiving those scientific findings and those amendments by —
Senator Plett: They should be based on science as well?
Mr. Guilbeault: Yes.
Senator Plett: Thank you.
Senator Batters: Minister, the division of powers, as you have referenced, concerning animal protection between provinces and the federal government is somewhat complex. That division is based partly on the severity of the harm inflicted upon animals. The provinces derive their legislative power from section 92.13 of the Constitution Act, 1867, which pertains to property and civil rights, while the federal power is based on section 91.27 related to criminal law.
In that context, doesn’t Parliament’s enactment of laws criminalizing the mere possession or breeding of certain animals risk encroaching upon the provinces’ jurisdiction? Further, how can it be justified that persons, simply by possessing an animal and adhering to the standards set by Canada’s Accredited Zoos and Aquariums, be considered as committing an act of cruelty deserving of criminal sanction?
Mr. Guilbeault: Again, I will refer you back to some of the scientific evidence we have used and scientists we have consulted in elaborating Bill S-15 where the captivity of the animals affected by Bill S-15 is equal to cruelty. That, therefore, allows us to use federal criminal powers.
Senator Batters: Except that if it’s animal cruelty for them, what about the ones that are currently in captivity and are grandfathered by this bill?
Mr. Guilbeault: Senator McBean asked a similar question. We obviously looked at the question.
With this bill, we will eventually put an end to this, but as Senator Plett rightly pointed out, it will take some time. We want to ensure that the problem doesn’t grow over time and that, eventually, it is dealt with. But it will take some time.
Senator Batters: Decades. Okay. Thank you.
Mr. Guilbeault: If I may, I would just like to add a few things.
When it comes to environmental or conservation issues, I think I often hear from constituents and Canadians across the country that they would like to see changes rapidly. I’ll just give a quick example.
I spoke about Canada deciding to step forward to host COP 15 in 2022. It’s not the first time our country has chosen to step up to the plate with environmental issues. In 1987, Prime Minister Brian Mulroney decided that Canada would host the ozone summit in Montreal that led to the Montreal Protocol. At the time, everyone was talking about the ozone layer. We don’t talk about it anymore because of the Montreal protocol. We signed the agreement in 1987, and scientists are telling us that, likely around 2016, the ozone hole would be closed — or the so-called holes. It will have taken 75 or 80 years for humanity to tackle that environmental problem.
It’s easy in the environmental, conservation or animal rights fields to create wrong. It usually takes a long time to correct mistakes — often decades, as you pointed out.
The Chair: Thank you, minister.
[Translation]
Senator Carignan: I was telling you earlier about the Canadian Council on Animal Care, with its 100 pages of guidelines. I asked if it was an admission of failure, but I want to tell you about the Council. It has 23 members — I don’t know if you knew that. Among its members are the Canadian Food Inspection Agency, Agriculture and Agri-Food Canada and a whole series of organizations that deal with the ethics of Canadian companies. There’s also Environment and Climate Change Canada. Even your own department participated in developing these guidelines. I don’t understand why you didn’t rely on this group’s science in order to regulate these standards.
Mr. Guilbeault: You’ll understand, senator, that there’s a difference between guidelines and a bill.
Senator Carignan: That’s the reason I’m asking why you aren’t making it a regulation.
Mr. Guilbeault: Because we felt the right thing to do was to introduce legislation and have Parliament pass it rather than proceeding by —
Senator Carignan: For criminalization?
Mr. Guilbeault: By regulation.
Senator Carignan: I’ll tell you why: because if you’d done it by regulation, you’d be within provincial jurisdiction. Since you didn’t want to venture into provincial jurisdiction, you decided to criminalize.
Mr. Guilbeault: That’s your interpretation.
Senator Carignan: I think it’s unconstitutional, your —
Mr. Guilbeault: I disagree with it, but it’s your interpretation, and you are entitled to it.
[English]
Senator Klyne: Minister, regarding apes, I said that they are currently in accredited zoos that might well have conservation and scientific value.
The question, minister, is: Legally, this bill is closely based on Canada’s whale and dolphin captivity laws passed in 2019. Those laws successfully ended the import of wild, captured belugas and dolphins in Marineland in Niagara Falls as well as the breeding of whales that took place there. They also resulted in criminal charges for illegal performance for entertainment purposes.
I have submitted evidence that the breeding of elephants is taking place in Canada at African Lion Safari for commercial purposes, including potentially breaking up mother and daughter pairs — who normally stay together for life — as are performances for entertainment purposes. Elephant rides were only ended a few years ago following an attack, but they remain legal. Do you see Bill S-15 as Canada’s best avenue to end these practices once and for all?
Mr. Guilbeault: Yes.
Senator Klyne: Thank you.
The Chair: Thank you very much, minister, for giving us some extra time but also for being here. I know we have all learned a lot from you. Thank you, and we’ll invite you again soon.
Mr. Guilbeault: Thank you, senators.
The Chair: We will now suspend for a few minutes to get the officials on board.
Senator Simons: I have a technical question that may seem silly, but I just wanted to have some clarification.
The proposed provisions in the bill expressly restrict the application to great apes and elephants kept in captivity. This may sound like a ridiculous question, but are there any apes and elephants in Canada not kept in captivity? What legal effect does that phrase have in the legislation?
Mr. Brookfield: From a legal perspective — and I’ll let my colleague elaborate — but, obviously, as you pointed out, it would not cover those that are not in captivity. My colleagues may be able to comment on the factual basis of it. In principle, should Parliament choose to close a potential loophole of covering animals not in captivity — that are in the wild — that would, obviously, be open for them to do so.
Senator Simons: Because, presumably, there are not a lot of elephants in the wild in Canada.
Mr. Brookfield: I would say it’s not uncommon for the Criminal Code of Canada, as other legislation has done, to be targeted to the practical reality of the situation rather than necessarily —
Senator Simons: There isn’t an expectation that it has any kind of particular legal meaning?
Aleksander Godlewski, Counsel, Criminal Law Policy Section, Department of Justice Canada: One thing that I would add as well, senator, is that — if you allow me to paraphrase the preamble of the bill a little bit — the problem this bill is looking to solve is based around the captivity of the animals as opposed to animals in their natural state.
My colleague is right to note that that application is limited, but, at the same time, the bill is specifically focused on those situations of captivity as opposed to —
Senator Simons: So until such time as we have cloned mammoths roaming free. All right.
I have another question, and it’s about natural breeding. I’m wondering what onus that puts on the zoos and facilities that house these animals to — I mean, it’s like having teenagers, right? It’s kind of hard to keep them from natural breeding.
Are we expecting zoos to segregate animals by gender? Are we expecting them to use contraception? What happens if the chimps get randy behind the hay bales and nobody notices?
Senator McBean: Because they don’t use the apps.
Senator Simons: Yes, they are not on Tinder.
Mr. Brookfield: Well, I think from a legal perspective, we can say that the intent there is, obviously, to give flexibility. Sex segregation would be one option. There may be other options, and my colleagues can talk about the factual basis of it.
The Criminal Code of Canada here, as in many other instances, is intended to allow flexibility for an outcome through various means.
Ms. Caceres, can maybe talk about the practical elements?
Ms. Caceres: I believe the bill is suggesting that the people who are keeping these animals take reasonable efforts. Our consulting experts, for example, note that there are some humane ways to prevent natural breeding, such as contraceptives and others, and so we would hope, through engagement, we could look for some of these approaches, working with those stakeholders.
Senator Simons: To follow up on Senator McBean’s question, if there are unintended consequences of that, that animals — I don’t think we have a lot of bonobos in captivity in Canada, but great apes use sexual intercourse and sexual play not just for breeding purposes, but as we do, for social lubrication and for building social bonds. If you use contraception, you are potentially having a deleterious impact on the health of the animals. In our efforts to be kind, I’m wondering if we aren’t creating potential cruelties that have not been anticipated.
Ms. Caceres: Thank you, senator. Again, the intent of the bill is to phase out captivity, and to achieve that intent there is a need to limit breeding, to prevent breeding. That does result in some trade-offs for the animals that are currently in captivity, and that is something that we would need to continue to pick up with our engagement as we think of the most humane ways to achieve that ultimate goal of phasing out the captivity of these animals in Canada.
Senator Simons: I guess, if we are being anthropomorphic, I think most of us probably wouldn’t find our lives any happier if we were prevented from the preambles to natural breeding.
That wasn’t a question. That was just a caustic remark that does not require a response.
Senator Gold: Thank you and welcome. Thanks for your presence.
I wanted to ask you to comment and help us understand a little bit better the nature of the standards that are in place — not necessarily the ones to which our colleague Senator Carignan referred, but more generally that would apply. I understand those are voluntary.
I guess it’s a two-part question. What voluntary standards are in place to which zoos can or cannot adhere to for certification purposes? How many zoos or institutions that have animals in captivity have not voluntarily assumed those?
Equally or more importantly, in your judgment, how adequate are these standards in terms of preventing harm to the animals in captivity that are the subject of this bill? How do the Canadian standards to which reference was made compare to other standards in other jurisdictions — American or elsewhere?
Ms. Lane: Thanks for the question. I think you’ll be hearing experts from various accreditation bodies and others who are probably better placed to speak to the standards in place for existing zoos. As noted in some of the questions previously — also by the minister — these are typically matters within provincial jurisdiction.
With respect to the content of Bill S-15, there aren’t any standards referred to. The prohibitions are there, and the lifting of the prohibitions for those reasons are set out in the bill. However, the bill doesn’t make reference to the standards that exist, and so we’re not best placed to provide answers about the adequacy of those standards and what exists. The premise of the bill is really on those prohibitions and the lifting of them for best interests of scientific research or conservation purposes.
Senator Gold: So in my understanding, because of provincial jurisdiction and because there may be differing standards that apply to those who adhere to them voluntarily or not, it was thought better — unlike in the Jane Goodall act to which reference was made — to leave that for an engagement with provinces, territories, experts, stakeholders and scientific input and to simply deal with the overarching national standard of prohibition. Did I get the intent of this correct?
Ms. Lane: I think that’s correct in the sense that the purpose of the national engagement process — and I don’t know if my colleague wants to add anything to that — is to have that national dialogue about some of the other facilities that house other types of animals, not just great apes and elephants. Therefore, the bill is really focused on those two species and the prohibitions and lifting of those prohibitions for those two species.
Senator Gold: Do I understand that at least it is contemplated — assuming the passage of this bill — that there will be that kind of engagement with provincial, territorial and other stakeholders on these matters in the best interests of the animals in captivity?
Ms. Caceres: Yes, indeed, that is contemplated: to engage with the provinces and territories as the minister indicated in his remarks; to look at the landscape across Canada for the care of animals in captivity; to consider whether or not there are gaps; and to think about different approaches we might want to collectively consider.
Senator Gold: Thank you.
Senator Klyne: I have two quick questions.
I understand that Environment and Climate Change Canada already administers federal CITES permits in terms of licencing the transport of captive endangered species and ensuring that no harm is done to the species’ survival. Do you see the opportunities to build on this framework in terms of adding considerations of animal welfare and public safety for elephants and great apes in departmental processes?
Ms. Lane: I think in the context of the CITES permits issued, I’ll let my colleague speak to it. Just with respect to the public welfare — and there was another consideration you mentioned in your question — the bill does not speak to those matters. As noted, the exceptions that will be added and the permits that will be issued speak to best interests, conservation programs and scientific research.
Ms. Caceres will maybe speak to what the permitting process is right now, if that would be helpful. However, we can’t really opine on whether or not there’s value to add those things. That’s a matter for senators to decide.
Senator Klyne: Okay, thanks.
Ms. Caceres: Maybe I’ll briefly say that the current permitting process that exists for CITES is based on the obligations under that convention. In order for a permit to be issued for the import or export of an animal — or of a part, derivative or product made of that animal — listed under CITES, it needs to meet the bar of being legally acquired and its trade not being detrimental to the survival of the species in the wild. So it’s based on ensuring the conservation of the species.
Senator Klyne: Thank you.
Fisheries and Oceans Canada currently administers Canada’s 2019 whale and dolphin captivity laws, including the framework for imports and exports. Do you see opportunities for your department to build on the best practices that their department has identified over the last several years in the development and administration of a licencing framework for captive elephants and great apes?
Ms. Lane: Certainly. Thank you for the question. We will be working closely with the Department of Fisheries and Oceans. Of course, as you recognized with your question, the bill was built off the framework that was in that bill for cetaceans. We will definitely be speaking with our colleagues.
Senator Klyne: Thank you.
Senator Plett: I find I’m echoing what Senator Simons is saying here on a regular basis. Well, it’s wonderful, Senator Simons.
I find it strange that we want to be real cruel in order to be real nice. Let’s first stop them from breeding, being social and doing all the things we say they most want to do in order to, down the road, help an animal that isn’t even here yet. We’re going to slowly let elephants die over a 60-year period by taking them away from what they would most want to do, and we’re doing it in order to protect an animal that isn’t here. We already can’t import animals, so any elephant or great ape that would happen to become part of our country would be the result of breeding here. It’s an animal that would be used to our climate. I find it strange. You say you have consulted. That’s what we hear an awful lot from this government.
I’m going to ask you a question that I’ve asked in the Senate Chamber a few times. African Lion Safari currently holds 19 of 25 elephants in Canada, and these elephants are flourishing. I think most senators have seen videos of them playing around in the snow, breaking through the ice and having a great time in the middle of winter.
Has anybody in your department that has been part of the research visited African Lion Safari to consider the experience and the existence in order to come up with the research and with what we have here today? Have you visited them?
Ms. Lane: Perhaps I can answer the first question. With respect to the question around the premise that you can’t bring an elephant or a great ape into Canada currently, as Ms. Caceres my colleague noted, right now, you can import elephants and great apes. I’m not sure if you have the numbers.
Senator Plett: With permits — yes.
Ms. Lane: With permits, as long as it doesn’t impact the conservation of the species in the wild.
Senator Plett: That’s not what this bill is doing.
Ms. Lane: Right. This would add an additional filter on it.
With respect to a visit to the African Lion Safari, I haven’t personally been there — perhaps I did when I was young and I don’t recall. But we did work with veterinary experts who are skilled in the field and have worked with zoos who are able to provide us with advice on this matter.
Senator Plett: Worked with zoos that don’t have elephants. Senator Dalphond referred earlier that Calgary and Toronto had written letters saying they would get rid of their elephants. They haven’t had elephants since 2014.
It would appear that you have ignored the experience of 76% of elephants in Canada, which suggests that somebody has cherry-picked their so-called evidence. So how can you claim that the evidence supports your position when you have not considered the breadth and the experiences of elephants in Canada? For every scientist that you get who says this is a good idea, I can bring you a scientist who says this is a bad idea somewhere along the line.
And now we find out you haven’t consulted. You haven’t even consulted the provinces. We were told today, once this bill becomes law, you will consult. Why is it we do all of this without consulting? And some activist has brought you — I’m sorry, I’m saying things I shouldn’t say either because I don’t have evidence of that. But it appears as if you’re taking the words of somebody who doesn’t like something and says, “Here’s the scientific evidence.”
As you said, madam, that we will hear from experts later on — I think maybe in answer to Senator Gold’s question, we will hear from experts. We will hear from experts here that will tell you this is absolute hogwash, that these elephants and the great apes are doing fine. We will hear from those experts as well, but that seems to be shunted out.
Who, other than scientists, have you consulted with? Senator Boyer asked whether you had consulted with the Indigenous community. I’m asking you: Have you consulted with my province of Manitoba? Have you consulted with the province of Ontario where these elephants are? Have you consulted? Did they agree with you?
Ms. Lane: We have spoken at the working level with provinces. We’ve met with African Lion Safari and with some of the witnesses you will be hearing from as well with respect to the bill. I would say that, as you can probably imagine, there are some concerns from the provinces and territories about encroaching on provincial jurisdiction.
Senator Plett: And certainly from African Lion Safari too.
Ms. Lane: Yes. There will be different views, for sure. I think African Lion Safari is on your witness list and you will hear perspectives from them that are provided.
We have spoken with provinces and territories. We have spoken with African Lion Safari and animal rights groups and others in preparing this bill.
Senator Plett: Does consulting not mean listening as well? You say you’ve spoken.
Ms. Lane: Sorry. We have spoken, and they have spoken with us and we have listened.
Senator Plett: And you have ignored it. Because the provinces do not agree with you and African Lion Safari does not agree with you, so have you listened? Sorry, that’s my last question, but please.
Ms. Caceres: If I may, senator, as I mentioned in my earlier comments, there will be a diversity of views. Our intent here was to speak with some veterinarian and welfare experts who have a broad range of experience to seek their guidance and expertise.
On the biological and ecological factors that they considered, on the welfare indicators that they considered, it was that balance, that weight of that information, taking into account that diversity of views that led us to the conclusion that for this bill and achieving that bar of cruelty — it is cruel to be kept in captivity — that elephants and great apes, from the weight of evidence, appeared to meet that bar. But we do recognize there is a range of views on this issue.
Senator Plett: Who are we being cruel to?
The Chair: Senator Plett, I’ll put you on second round. I’ve given you eight minutes.
Senator Plett: Thank you. I appreciate that, chair.
The Chair: You are welcome.
Senator Batters: First of all, I just happened to look up the 2021 mandate letter for Minister Guilbeault from the Prime Minister, and, as he referred to earlier, it’s a very lengthy one. It has 39 different items. The second-last mandate item in that very long list is, “Introduce legislation to protect animals in captivity.” It doesn’t limit it, as this bill does, to elephants and great apes.
Given that and given that he basically said today that the mandate letter was a major factor for proceeding with this now, well, what’s going to be next? What category of animals are going to be next to comply with what is viewed for that 2021 mandate letter?
The Chair: Senator Batters, I suggest that should have been a question you asked the minister.
Senator Batters: I didn’t have time and I only looked at that mandate letter now.
The Chair: I’m sorry, but it’s not fair to ask them.
Senator Batters: If they can give me an answer, fine. If not —
Ms. Lane: I’m afraid we can’t give you an answer as to whether or not there will be further legislation from the government on this point.
Senator Batters: All right. Perhaps I’ll find some way to get an answer from the minister on that.
Senator Boyer earlier asked the minister about what Indigenous consultation and engagement had been done for Bill S-15, and he couldn’t give her an answer and said they’ll get back to us. I do find that answer quite surprising given that in mandate letters from this government they’ve talked about how the relationship with Indigenous people is the most important relationship that this government has.
What I’m wondering, though, when I was watching Minister Guilbeault attempt to answer that question, I noticed that one of his officials sitting behind him was gesturing as if she knew the answer to that. I’m not sure if that official is still here or not, but what is the answer to that question?
Ms. Lane: She is not here right now. What I will say is what Minister Guilbeault said is that we can provide a follow-up with respect to the consultations that were done. On many bills and on many things that happen within the public service, there are consultations done at the officials level, which is us, and there are also consultations done by the political staff. I think it would be best for us to provide you with written information at that time.
Senator Batters: At the official levels, though, have you done consultation with Indigenous groups? Can you provide us with that as well?
Ms. Lane: With respect to this bill, there hasn’t been specific consultation on this bill with Indigenous groups. However, there are regular conversations with Indigenous groups, with the Assembly of First Nations, or AFN, with the national Indigenous organizations with respect to these issues. Because these species are not native species to Canada, we haven’t heard a variety of views with respect to this from Indigenous groups. There hasn’t been significant input provided on this bill from Indigenous groups to date.
Senator Batters: Okay. My final question is: Regardless of Bill S-15, not even one of the animals that’s covered under it can be imported without the express approval of the federal government. Under WAPPRIITA — I think I said that right — the minister already possesses full discretion to refuse a permit as outlined in subsection 10(1), which allows the minister to either grant or deny the permit, “. . . on such terms and conditions as the Minister thinks fit . . . .” This bill would add two new types of permits in relation to elephants and great apes, one for the importation or exportation of living elephants or great apes and another for the possession of living elephants or great apes.
Does that mean now that if someone were going to import one of these animals into Canada, they would have to apply for two permits from the minister instead of one? In other words, is there one permit required to import the animal and another to possess it?
Ms. Lane: That’s a question we’re going to have to take back. I don’t know if we have an answer to that.
Julien Landry, Legislative Policy Manager, Legislative Governance, Environment and Climate Change Canada: The consideration would be done both for the conservation purpose and for the purposes under Bill S-15. The law does not speak directly to that issue, but they would be allowed, in practice, to potentially issue a permit at the same time for both the conservation and Bill S-15 purposes.
Senator Batters: I’m sorry, I was a little confused by that answer. Do you mean that there would not need to be two permits? That one permit would be sufficient? And is that the permit that already exists or is this a new permit under Bill S-15?
Ms. Lane: There is a new permitting authority under Bill S-15 for possession for these two types of species. I think what my colleague was saying is that in practice it’s possible that there is one permit that uses both authorities to issue that permit. That’s something that we’ll work through as the implementation for this. There wouldn’t necessarily need to be two permit applications associated with these two authorities to issue permits. Does that answer your question?
Senator Batters: Is that something that you are going to be able to provide a further answer before we continue consideration of this bill?
Ms. Lane: Yes.
Senator Batters: That would be helpful. Thank you.
Ms. Lane: Yes.
Senator Dalphond: There were some questions raised about the basis for the legislation in constitutional terms. I understand the bill has two parts.
One amends the Criminal Code. Those provisions are based on the definitions — if I understood — the criminality of having situations that result in cruelty toward animals, which is a well-known crime; it started in common law before the codifications of the Criminal Code. That’s the first part.
The second part is about the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, which is based on the power of the federal government to regulate international trade and commerce, customs and borders and interprovincial trade. Am I right or wrong that both parts of the law are resting on different bases?
Mr. Brookfield: As a matter of clarity, I wouldn’t want in this venue to say particularly what constitutional arguments might be raised. We are not constitutional lawyers in the context of litigation. Noting that, it has not yet been brought with respect to dolphins and whales. There might be various experts within the Department of Justice that might put forward other arguments.
The other point I’d clarify — and my colleague will elaborate, I expect — is that the minister emphasized the factual basis of cruelty here. As you mentioned, there is a provision in the Criminal Code on cruelty. I would say the basis of the criminal power from a constitutional perspective is broader than just cruelty, obviously. The criminal power is based upon, among other things, moral blameworthiness. Part of what we would do — should you choose to pass this legislation — would be to say that, in these cases, perhaps on the basis of scientific evidence and perhaps on other considerations, determine that keeping particular animals in captivity involve appropriate moral blameworthiness.
Mr. Godlewski: I don’t think I have a lot to add to that unless you had further elements to your question, senator.
Senator Dalphond: The offence is defined as an animal kept in captivity. Are there elephants or great apes in Canada that are not kept in captivity?
Mr. Godlewski: I’ll let my colleagues who have a little more knowledge of the populations of these animals from the science side jump in, but the particular problem this bill is targeting is the captivity of those animals. Were we in a Canada where there were large herds of native elephants or populations of gorillas —
Senator Dalphond: But my question is more this: What is captivity? Is every elephant in Canada, by definition, in captivity or do you have to show that it is in captivity? When is one not in captivity?
Mr. Godlewski: Ultimately, I wouldn’t want to speculate too much on the hypothetical. As you are no doubt aware, there is the judicial —
Senator Dalphond: This is the sense of the offence. The offence is to possess an elephant or a great ape that is kept in captivity. I’m trying to understand what the definition of “captivity” is. A cage would be captivity. I could easily see that. But how many acres do you have in mind? What is captivity?
The Chair: If you don’t know the answer —
Ms. Caceres: I don’t have a definition for you, but in Canada, there are 23 elephants and 31 great apes in captivity. We consider all of those animals to be in captivity in Canada.
Senator Dalphond: And the offence includes being in possession. If you have an animal now, you have committed a crime with respect to importation or exportation.
Mr. Godlewski: On the subject of importation/exportation, maybe I’ll let my colleagues jump in, but I wanted to know something because you mentioned the possession side. There is a grandfathering for elephants that are currently in possession that are in captivity — and great apes. You had mentioned that a person who has an elephant or great ape is committing the offence. There is actually an exception that contemplates that scenario.
Senator Dalphond: I understand there’s a grandfather provision. Does it require a licence to recognize you are in a grandfathered situation?
Mr. Godlewski: I’ll let my colleague jump in.
Ms. Lane: There are notification requirements associated with it, and those are found under the WAPPRIITA legislation. Any person who is in possession of an elephant or great ape must notify within 60 days of the coming into force of the bill that they are in possession in order for those exceptions to apply.
Mr. Brookfield: To be clear, under the Criminal Code, there is no licencing required.
Senator Prosper: My question is a follow-up from the previous panel where Senator McBean put forward a question with respect to those animals that remain in captivity. I believe the justification here in the bill and as stated was that it is justified when it’s in the best interests of that particular animal’s welfare.
How is the rationale of the best interest determined? What considerations do you take into account?
Ms. Caceres: First of all, there will be some additional policy work should this bill come into force to ensure we have clear policies around the criteria for best interests as well as conservation and science exemptions.
I don’t have criteria determined right now, but we thought it was important to ensure the ability to evaluate on a case-by-case basis whether there is a case to be keeping a particular animal in captivity in the best interest of that individual.
Senator Prosper: Thank you.
[Translation]
Senator Carignan: My question is about the Canadian Council on Animal Care. The minister didn’t seem too sure about his membership in the organization. You are aware, I imagine, that the department is a member of this council?
Ms. Lane: Personally, I wasn’t aware that the department was a member of this council. There are many sectors within Environment and Climate Change Canada. However, there may well be people who work in our science and technology sector.
[English]
Ms. Caceres: It’s not within my organization, so I’m not aware who is a member of that committee.
[Translation]
Senator Carignan: There is an organization that sets standards for primates in captivity, of which Environment and Climate Change Canada is a member. You introduce a bill on primates in captivity, but the department doesn’t consult the council nor the experts to determine whether they support the bill? People are unaware of the organization’s existence. I assume you didn’t consult it, since you don’t know it exists.
Ms. Lane: We can provide the committee with information at a later date; we can make inquiries within the department and then provide you with a written answer.
[English]
Coming back to the purpose of the bill, I suspect that the guidelines you’re referring to for which Environment and Climate Change Canada might have participated are separate and different from the bill we have before us is about.
[Translation]
Senator Carignan: In keeping with standards on holding primates in captivity, the bill bans primates in captivity, because we’re told it’s cruel to keep them in captivity. We’re getting rather close to the subject, aren’t we? I don’t want to argue.
On the list of witnesses we currently have, who were suggested by the government or by the bill’s sponsor, there are mostly German, English and American experts. Can we obtain a list of the experts you consulted? You talk about them in rather broad terms. Which experts did you consult? Are there any Canadian experts? If so, which ones? Which foreign experts did you consult?
Ms. Lane: We can follow up with the names of the people we worked with on the bill. They were mostly Canadian veterinarians.
Senator Carignan: I look forward to seeing that. Perhaps we can cross-reference, because on the list of those who participated at the subcommittee on non-human primate standards, I see Dr. Paré, Dr. Everling and Dr. Goulet.
I assume they’re veterinarians too, so maybe we can cross-reference those names. Thank you.
[English]
Senator Clement: Thank you all for your testimony. I want to thank Senator Boyer for reminding us about some of the work that she has done in the past. I’m recently arrived in this place, and I always appreciate more context. Thank you.
I want to come back to a question that was asked before because I am trying to understand the departure from Bill S-241 to Bill S-15. I understand, Ms. Lane, that you said we are following the 2019 legislation around cetaceans. I get you are going with a tried-and-true format.
When Senator Simons asked about big cats and adding things, the response we got was, “Well, science is not yet completely settled on that category of animal.” Is there any legal issue with adding some kind of executive authority here which would allow the government, as science proceeds, to add references to different categories of animals? When you talk to Canadians and you say, “Okay, we’re doing elephants and great apes,” and they say, “What about big cats,” it’s kind of hard to explain that to Canadians. Why are we doing things in this way, and can this law include that kind of reference?
Ms. Lane: I may turn to my colleagues from the Department of Justice to augment this response. As indicated by Ms. Caceres and the minister as well in his remarks, the focus for these two species was on that cruelty element. For some of the other big cats, for example, the rationales provided are not around, necessarily, the cruelty it represents of having those animals in captivity. From what I understand — again, I’m not a scientist either — there is some evidence, and I’m sure you’ll hear differing views, that they do better in captivity than species like elephants and great apes.
Senator Clement: But that’s not settled.
Ms. Lane: Right, of course. With respect to the question of whether or not there would be an ability to set those things out in legislation, to have an ability for that to evolve over time, that’s a question for Parliament to decide in terms of the structure of the bill. It’s not there right now. As you noted, it was in Bill S-241.
The question of whether or not that should be done is not necessarily something that we can answer. I don’t know if there’s anything from a Criminal Code perspective —
Senator Clement: Is it legally troubling? I suppose you could answer that.
Mr. Brookfield: The simple answer, from a drafting perspective, is that we could ask our drafting colleagues to draft something up. I don’t think it would be technically unfeasible. The fundamental question — getting back to the early discussion with Senator Dalphond — is if it’s based on the criminal law power and under the Criminal Code, is there the basis that, as Parliament has determined, of the moral blameworthiness required exists based on the evidence before it and on other considerations.
Mr. Godlewski: I would add to the answer that if we’re talking about Criminal Code offences, we’re effectively talking about expanding criminal offences through that kind of a process. Of course, Criminal Code offences have fairly significant consequences for those who are convicted of them. With that in mind, there may be a benefit to having the consideration of Parliament about whether or not that determination is merited and having that extra amount of consideration.
Senator Clement: Thank you.
Senator McBean: I’m wondering how this stands up internationally. If we’re regulating the import and export through Bill S-15, does this help to combat wildlife trafficking? Are there other countries that are doing exactly the same thing so we’re part of a global collective in this protection of the animals? Or are we just like a tiny little island in a big blustery sea?
Ms. Lane: I can provide somewhat of an answer. We haven’t done an exhaustive search. I think Ms. Caceres would probably be best placed to say whether this contributes to the conservation of the species and whether that is in line with some of the existing work that the department does.
As this committee likely knows, the constitutional jurisdiction of different countries is very different. The powers of the federal government in Canada are much different than the powers of the federal government in the United States. It is a bit difficult to compare what we’re doing here.
It is possible that there are other international examples such as this. It’s not something that we have found and said, “Yes, this is happening in this country that we can point to right now.” The approach we’re taking with Bill S-15 is based on the cetaceans regime, but there isn’t an international analogous piece of legislation at the federal level that is occurring.
I don’t know if you wanted to talk about the other part of the senator’s question around how this contributes?
Ms. Caceres: The purpose of Bill S-15 is related to the keeping of these animals in captivity and the inherent cruelty in that. That is not a conservation issue. It builds on some of the conservation work that we already do. Canada is part of a network in the sense that we are party to CITES, but we also participate in different forums on various conservation actions for biodiversity globally, including for elephants and apes.
Issues around poaching and concern with the illegal take of these animals are also concerns that we take up in our engagements, particularly in CITES. In those engagements, we are often looking more at the projects that stimulate the poaching, and it’s not usually capturing for live trade. It is certainly not for the purposes of things that might be illegally entering into Canada.
For Bill S-15, again, our goal here was more about the keeping of these animals in captivity and whether or not that practice should continue.
Senator McBean: Again, if we are going back to what the minister started off with, “Because it’s the right thing to do,” should we also take forward a sort of international sharing of a policy that keeping these large animals in captivity is cruel? It’s kind of tough for you. You pop over to the San Diego Zoo or you go to any other zoo, and all of these animals are there. We are drawing a line in the sand saying it is cruel to keep them in captivity, and then we do nothing about trying to share that vision internationally. I suppose there is no question there.
Ms. Caceres: Thank you for that comment. I can’t speculate on how we would engage in advancing the bill in a more global way at this point.
The Chair: Are you able to stay for ten minutes after? Yes? Thank you.
Senator Plett: I find it strange that you were asked by Senator Dalphond, and a little bit by Senator Carignan as well, what is captivity. We keep on referring to animals in captivity, and you can’t give us a definition of captivity. The Oxford English Dictionary says it’s the condition of being imprisoned or confined. I think it’s fairly simple.
I asked the minister what’s the difference between being on a reserve in Africa or being at African Lion Safari. He said the size of the enclosure. They had 22,000 square kilometres of reserve versus 250 or 300 acres. But that’s all. Somebody decides that is the right size.
Why are 250 acres of open land for an elephant to roam around called captivity when the reserve is not captivity? They can’t leave the reserve so they are captive on the reserve. These animals are captive on 300 acres. What’s the difference?
Ms. Lane: I think we have answered the question with respect to the Canadian context. Our view is that all of the elephants and great apes in Canada are in captivity.
With respect to the interpretation of the prohibition, looking at the dictionary — and there are other principles of statutory interpretation that might define “captivity” — but I think for the purposes of this bill, the view is that all of the elephants and great apes in Canada are in captivity.
Senator Plett: Senator Klyne has made it clear that he believes elephants in human care — and I’ll call it “human care” because I don’t believe they’re in captivity; they’re in human care — but he believes that all elephants in human care serve no conservational purpose.
Is that the position of the government, that they serve no conservational purpose?
Ms. Caceres: We wanted to include exceptions, including an exception for conservation. We have not undertaken an evaluation around the conservation purpose of the keeping of elephants in Canada at this time, but that is something that is part of the policies that will need to be adapted in order to think about the implementation of this for conservation purposes for elephants.
Senator Plett: But the bill allows —
The Chair: Thank you, Senator Plett.
Senator Plett: That wasn’t a complete answer, Madam Chair. I would like a complete answer.
The Chair: I have already given you three minutes.
Senator Plett: I think I deserve a complete answer to my question.
The Chair: Can you please provide a complete answer in writing to Senator Plett —
Senator Plett: The bill says for conservational purposes.
The Chair: Can you please provide a written answer to Senator Plett? Thank you.
Senator Klyne: I think I said elephants in captivity really have no conservation purpose.
In the duality of this bill, Parliament has federal jurisdiction over criminal animal cruelty and public safety as well as international trade. On the other hand, provinces have shared jurisdiction over captive wild animals, insofar as they are private property, and municipalities may also impose local restrictions. With this division of powers in mind, can you please confirm that the province of Ontario has the jurisdiction to intervene to help the remaining whales at Marineland if they wished to, such as through the legal mechanism of expropriation?
Ms. Lane: I’m not in a position, really, to comment on matters within the mandate of Fisheries and Oceans Canada.
Senator Klyne: Can you comment on the duality of this bill because there are questions around provincial and federal?
Mr. Brookfield: I think we can agree that there is a duality in this bill. I don’t think we’re in a position to speak on behalf of the province of Ontario and its perspective on what its jurisdiction is —
Senator Klyne: Well, you don’t have to go to that, but the province’s jurisdiction in this regard would be that they can offer licences and permits for transportation, but the federal government has another line of jurisdiction.
Can you comment on the differences?
Mr. Brookfield: We’re not constitutional lawyers, so I wouldn’t be in a position to get into the details.
I think, in general, in terms of —
Senator Klyne: Does this fellow?
Mr. Brookfield: No. We are both criminal law experts.
In general terms, I think it’s fair to say that we agree there is shared jurisdiction. In this bill, there is reference to the criminal law power that is clearly federal. There are other issues that are in provincial competence, such as property and civil rights.
Senator Klyne: There you go. Thank you.
Mr. Brookfield: There is certainly a shared jurisdiction. Where those nuances are and what arguments might be made about which heads of powers might be argued would be something, I think we would be loath to get into.
Senator Klyne: Did you have anything to add on that?
Thanks for the division.
The Chair: I made an error. Send your answer to what Senator Plett asked to the clerk, and he will distribute it to everybody.
Senator Batters: I want to go back to this captivity thing because I find this very curious. As you were just stating, all elephants and great apes in Canada you consider to be in captivity. Yet, according to this bill, all elephants and great apes in Canada are basically part of this grandfathered situation. It’s not really providing anything new with respect to that.
Let me go to a bit of an absurd example. Because there is no size limit on the space of the area, you could potentially have an elephant who is given free rein over the province of Saskatchewan and that would still fall within captivity, isn’t that correct?
Senator Plett: Yes.
Ms. Lane: I can’t speculate. I think that —
Senator Batters: Well, there is no size limit, right?
Ms. Lane: No, there is no size limit, but, presumably, there is an ownership requirement associated with those species.
Senator Batters: Sure. But if that was met, it would potentially still fall within captivity, even if they were given an area the size of the province of Saskatchewan?
Ms. Lane: Perhaps. I don’t know —
Mr. Brookfield: With respect to the Criminal Code of Canada element, obviously, fundamentally, the police would need to charge, there would need to be approval of a prosecutor and the prosecutor would need to make sure it meets the elements of offence. They would then need to establish before a court what “captivity” means and whether on the facts of that particular case — in your scenario, as I understand it — someone possesses that elephant. I’m not sure what that means, so they would need to look at whether that possession meets the requirements of the bill.
Senator Batters: Right, but why didn’t you consider including a size limit in your “captivity” definition?
Ms. Lane: I’m not sure that we have an answer to that question for now. I think with respect to these particular species groups that we have identified, both elephants and great apes, these are not species that are found naturally in the wild, and we wouldn’t expect them to be found in the wild.
The notion is that a person would have to have possession of that species, import that species, and the goal of the bill, again, is to phase out their captivity in Canada. The size limit and other elements of the regulatory — the elements around how those animals are kept are not being treated by this bill.
Senator Dalphond: I guess that’s why we have judges. The words “in captivity” have to have a meaning, which has to be a reasonable meaning. We have to define the essence of what is captivity.
My question is that there is a grandfather provision, as you mentioned, about those that are now owning great apes or elephants. They have nothing to do, according to criminal law.
However, the other law — the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act — requires them to send notice of ownership, and if it’s not done, they are exposed to not the criminal offence but a limited statutory offence. What are the exposures because it says everybody who commits an offence who contravenes clause 11.1 — which is to give notice — commits that infraction. What is the penalty for that?
Ms. Lane: The penalty for the notification requirements? We can find that out. If we can’t find it right away, perhaps we could submit that in writing to the committee.
Senator Dalphond: What is the basis for that obligation to inform?
Ms. Lane: What is the basis for the notification requirement?
Senator Dalphond: Yes.
Ms. Lane: For us to have a sense of who the exemption with respect to the possession exemption applies to.
Senator Dalphond: Isn’t that a defence? The fact that if I own the elephant at the time of the coming into force of that legislation, I cannot commit the offence. So it’s up to me to show that I had it at that time. Why do I give notice to the government?
Ms. Lane: The bill design includes this notification requirement for the purposes of facilitating compliance and for the facilitating of the department to know where those species exist. I think your point is a fair one, but that was the purpose of including it in the bill.
Senator Dalphond: Thank you.
Mr. Brookfield: Maybe I can add. I think it is significant that that element is in the regulatory piece.
The Criminal Code has an element of moral opprobrium, as we discussed earlier. In that case, you don’t need to have identification. The Criminal Code is about things that are bad and that you shouldn’t do. Very crudely. Regulatory offences are about things that are okay to do if you do them right, and so that is where the notification element is found. It’s more of a regulatory context rather than a criminal context.
Senator Dalphond: I understand the need for a licence to get an exemption to do reproduction, for example, but if I own an animal, and the Criminal Code said it’s not an offence to own it — it would be an offence to bring a new one or to have it reproduce. But to own it is not a criminal offence, so why do I have to give notice to the minister?
Mr. Brookfield: There are many other regulatory provisions in other bills which require notification or other information for regulatory purposes, in other words, to allow things that are broadly permitted but under certain circumstances. I would suggest that’s why there is the difference in the location of the notification.
The Chair: Thank you.
Senator Dalphond, I’m not clear. Do you still want them to provide a definition of what “captivity” is?
Senator Dalphond: No, because I think it has to be defined by the case law, obviously, as many other infractions.
Senator Simons: I’m going to end at the beginning. Preambles of bills always make me nervous because the rhetoric sometimes gets high flown out of proportion to what the bill actually does.
In the preamble of this bill, there are two phrases that cause me some concern. One is, “. . . the captivity of certain animal species that are not domesticated,” because I think one might make an argument that in some parts of Asia, Asian elephants are, in fact, domesticated.
The other thing that concerns me a little bit is this very broad phrase that we have talked a little bit about:
Whereas Parliament is of the view that the science establishes that certain animals . . . should not, because of the cruelty it represents, be kept in captivity;
Cruelty is a value judgment; it is not a scientific metric of anything. We have decided that Parliament is going to declare that this is cruel. I wonder if that doesn’t potentially lead us to a circumstance where people are going to come — I want to preface this by saying that I support the meaning of this bill. I also think that these animals should be phased out of captivity in Canada.
However, I am worried about putting such a value judgment at the head of a piece of Criminal Code legislation. I worry that it would then allow people to say, “Well, if it’s cruel for elephants and apes because they are incredibly smart, what about this kind of animal? What about that kind of animal?” Then, as deputy chair of the Agricultural Committee, I have to worry about the knock-on effects of declaring that certain kinds of animal care captivity is cruel. I have to consider what the logical consequences of that might be for livestock.
So how comfortable are you as drafters of legislation with some of the dramatic rhetoric of this preamble?
Ms. Lane: Just speaking generally, as you are aware, preambles have probative value in terms of the interpretation of the other provisions of the bill. If there is concern within the Senate and elsewhere about the phrasing and language of this, of course, it is open to the Senate to consider making those considerations.
The purpose of this preamble is to support the constitutional nature of this bill and the fact that there is — in making it, I think our colleagues from the Department of Justice have indicated that we can’t really speak definitively to whether other constitutional arguments might be made to support this bill in the future, but I think one of the elements related to exercising the Criminal Code jurisdiction is this element of animal cruelty. That’s why that is included as part of the preamble.
Mr. Brookfield: I agree fundamentally that it is for Parliament to choose whether the language is appropriate based upon the evidence and your moral judgments. It might be helpful to reference to section 445.1 of the Criminal Code, which talks about cruelty to animals. There, it speaks about willfully causing unnecessary pain, suffering or injury to an animal or bird. There, you have the concept of unnecessary pain, suffering or injury effectively being a definition of “cruelty.” Whether you agree with the evidence before you and moral considerations you may take into account that it is an appropriate characterization here would obviously be up to Parliament.
Senator Simons: Thank you very much. That’s very helpful.
The Chair: I want to thank the officials. You have been very patient. You have been here for a long time. Thank you for being here today and for taking the time to answer the questions. Members, thank you also for being here.
(The committee adjourned.)