THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, April 18, 2024
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:48 a.m. [ET] to examine Bill S-15, An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act.
Senator Mobina S. B. Jaffer (Chair) in the chair.
[English]
The Chair: Good day, honourable senators. I’m Mobina Jaffer, senator from British Columbia and chair of this committee. I invite my colleagues to introduce themselves.
Senator McBean: Marnie McBean, Ontario.
Senator Klyne: Marty Klyne, Saskatchewan, Treaty 4 territory.
[Translation]
Senator Dalphond: Pierre Dalphond, De Lorimier senatorial division, in Quebec.
[English]
Senator Cotter: Brent Cotter, Saskatchewan.
Senator Pate: Kim Pate, Ontario, from the unceded and unsurrendered territory of the Algonquin Anishinaabeg.
Senator Simons: Paula Simons, Alberta, Treaty 6 territory.
The Chair: Thank you.
Honourable senators, we are meeting to continue 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 Interprovincial Trade Act.
For our first panel, we are pleased to welcome via videoconference Dr. Lori Marino, President and Neuroscientist in Animal Behaviour and Intelligence from The Whale Sanctuary Project; Dr. Mary Lee Jensvold, Primate Communication Scientist from the Fauna Foundation; and Dr. Jake Veasey, Founder, Chief Executive Officer, Animal Welfare Scientist and Conservation Biologist from Care for the Rare.
Welcome. Thank you for taking the time to be with us. We will start with Dr. Marino.
Lori Marino, President and Neuroscientist in animal behaviour and intelligence, The Whale Sanctuary Project: Thank you for having me.
I have a PhD in neuroscience and animal behaviour. I also teach a graduate course on captive Wild Animal Welfare at New York University.
Prior to my current positions, I was a faculty member in neuroscience and behavioural biology at Emory University for 20 years where I studied, among other things, chimpanzees at Yerkes National Primate Research Center. I have published over 140 peer-reviewed scientific papers, book chapters and magazine articles on topics ranging from brain evolution to self-awareness to the effects of captivity on wild animals.
I would like to start off by defining captivity and making a relevant point. In the broadest sense, captivity is the state of not being allowed to live as a member of one’s species. In practice, captivity is not the same under all circumstances. I am here to share what science says about great ape captivity and big cats. You’ve heard quite a bit about captive elephant welfare already, but I want to acknowledge the abundant scientific evidence demonstrating poor welfare in elephants held in zoos.
What I am going to say is supported by peer-reviewed scientific papers, and I have submitted a bibliography with citations in my written statement.
Decades of research has shown that great apes have large brains, are behaviourally complex and have minds very similar to ours. They are capable of recognizing themselves in mirrors and planning for the future. They make inferences and understand cause and effect. They innovate, create and use tools, and, in the wild, have rich cultures that they pass down intergenerationally. Their personalities and emotions are very similar to ours. They are capable of empathy and altruism, and they can infer mental states in others and are capable on introspection. In short, great apes are highly intelligent and aware beings whose psychology overlaps with ours to a great degree.
Great apes in zoos do not enjoy autonomy in their day-to-day lives nor do they have sufficient complexity or challenges to be stimulated. As such, great ape welfare in zoos — even Association of Zoos and Aquariums, or AZA, accredited zoos — is far from what it can and should be. Significant improvement and protection are needed. While I personally am not in favour of keeping any great apes in zoos, I strongly urge that, if they are, it’s deemed in their best interests and that there are legitimate conservation goals with quantifiable outcome measures.
Great apes in zoos suffer from several conditions not commonly seen in the wild. Among these are cardiac disease, which is a primary cause of death. Captive great apes also exhibit a multitude of behavioural abnormalities, including stress, psychological abnormalities, post-traumatic stress disorder, depression and stereotypies.
Several studies of chimpanzees and gorillas in AZA-accredited zoos found that a majority of them engaged in abnormal behaviours, such as feces eating, hair plucking, stereotypies, self-harming, regurgitation and reingestion of food. These kinds of behaviours do not occur unless there is some compromised brain function.
While there is a range of diversity across zoos, an expert working group in 2013 concluded:
Clearly, captive chimpanzees lead lives that differ substantially from those of their wild counterparts, and even the most ambitious captive environments will fail to approach the sheer size and complexity of this species’ natural environment.
I would also be in favour of adding non-native big cats to this bill. That opinion is based on the abundance of scientific evidence demonstrating that many species of exotic big cats experience very poor welfare in zoos.
It has been demonstrated that wide-ranging carnivores like big cats suffer extremely poor welfare in zoos compared with those that have smaller home ranges. While some exotic big cats can live longer in zoos than in the wild, their quality of life is compromised. They exhibit a wide range of abnormal behaviours, like stereotypies, pacing and they have a high infant mortality rate. They are definitely not suited for captivity.
In closing, my views on Bill S-15 are informed by two things: first, the empirical science on the welfare of wild animals in zoos and other forms of captivity; second, the knowledge that tens of millions of years of adaptation to a particular environment cannot be replaced by an artificial one without there being welfare consequences. Therefore, I support this bill because it follows the data and provides more of the welfare protection great apes, elephants, big cats and other wild animals deserve. Thank you.
The Chair: Thank you very much, Dr. Marino. We will now hear from to Dr. Mary Lee Jensvold.
Mary Lee Jensvold, Primate Communication Scientist, Fauna Foundation: Dear committee members, thank you for the opportunity to address this Senate committee for the important work of considering Bill S-15. I strongly support this very important and progressive bill. It would place Canada in the forefront of animal welfare protection and demonstrate strong leadership and ethics. I am honoured for the opportunity to address the committee. My specialty is in great ape care and behaviour so I will address that aspect of the bill.
I am the associate director, a primate communication scientist and a board member at Fauna Foundation, a chimpanzee sanctuary near Montreal. I have spent my career working with apes, administrating sanctuaries and training students in this field. My research areas include ape behaviour, communication and use of American Sign Language as well as husbandry and practices to improve ape well-being and welfare.
There are three types of great apes: orangutans, gorillas and chimpanzees. They are large-bodied and are contrasted with monkeys, which are smaller and usually have tails. Monkeys and apes are primates, like humans, and are characterized as being highly social, behaviourally flexible, intelligent and having well-developed eyesight, hands — as contrasted with paws and hooves — and large brains, which allows us to manipulate our environment.
Apes live in highly complex social groups with rich communication. Different groups having cultural traditions, communication and tool use. Apes demonstrate flexible thinking, problem solving, a Machiavellian intelligence and advanced cognition. They plan for the future, show long-term memory and have a concept of self.
My work has included studies of chimpanzees’ use of American Sign Language, including the famous chimpanzee Washoe and others after her, including Tatu and Loulis who now live at Fauna Foundation. Loulis is Washoe’s adopted son and has learned his signs from her.
Chimpanzees initiate conversations, ask and answer questions, make requests and statements, describe past and future events, apologize, tell us lies and relay new information. It’s far more than simply asking for food. It is a rich communication between two sentient beings, including humans and other chimpanzees. Gorillas and orangutans also have learned to communicate with signs of American Sign Language with the same depths of expression.
As you heard, captivity — no matter how much stimulation and enrichment we provide — is a deprivation situation compared to the wild. Nearly all captive apes show some signs of abnormal behaviour whether it is mild, such as hair plucking or rocking, or more extreme self-injurious behaviours. In humans, these are indicators of psychopathology. Thus, I would agree that captivity is cruel for great apes, elephants and other species.
Currently in Canada, orangutans and gorillas live at four zoos, and chimpanzees live at one sanctuary. Zoos are accredited by the Association of Zoos and Aquariums and sanctuaries by the Global Federation of Animal Sanctuaries, or GFAS. These organizations have high standards for care that address specific taxonomic groups, and member organizations must meet this high standard. I would encourage the committee to utilize these standards in determining conditions for licensing. Additionally, I would encourage the committee to consider clear definitions of “conservation” and “research.”
Many zoos in Canada are not accredited by the AZA and thus do not meet this high standard. I have seen first-hand the poor conditions in zoos in Canada and the detrimental effects this has had on apes. Each of the chimpanzees that arrived at Fauna Foundation came from zoos with conditions that failed to promote good animal welfare. It is not a fair assessment to claim that because apes currently only live in accredited zoos and sanctuaries in Canada, there is no need for Bill S-15. They have lived in poor conditions in the past in Canadian zoos and this could occur again in the future. Thank you.
The Chair: Thank you very much, Dr. Jensvold.
We will now go to Dr. Jake Veasey.
Jake Veasey, Founder and Chief Executive Officer, Animal Welfare Scientist and Conservation Biologist, Care for the Rare: Honourable members, thank you for the opportunity to share my thoughts on this important bill with you.
I am a welfare scientist and behavioural ecologist, a member of the International Union for Conservation of Nature’s Species Survival Commission and CEO of Care for the Rare.
With over three decades of experience working with zoos and aquariums, sanctuaries, academic institutions, governmental and non-governmental conservation and welfare organizations worldwide, my unwavering focus has always been the intersection between animal welfare and conservation.
My aim today is not to represent any particular stakeholder group but, rather, to advocate for the needs of both individual animals and species at risk, and to make the case that the potentially conflicting goals of conservation and welfare can be reconciled by this bill and supported by recent scientific advances.
While the bill admirably aims to protect elephants and apes in human care, its narrow taxonomic focus and planned conservation exemptions risk perpetuating the status quo given that most reproductively viable elephants and apes in Canada would likely qualify as being part of conservation programs.
Instead of viewing conservation breeding programs as a necessary evil tolerated despite welfare costs, this bill should ensure that all species survival programs uphold exemplary welfare standards, grounded in the latest scientific evidence and extend this welfare imperative to species currently beyond the scope of the bill.
We are in the midst of a biodiversity and climate crisis. With over a million species at risk of extinction, urgent action is essential. In 2012, I highlighted the vital role of captive breeding in 55% of Canadian species recovery plans to the Standing Committee on Environment and Sustainable Development. Since then, it has been shown that over half the world’s mammal and bird species rescued from extinction benefited from such interventions.
As societal expectations for animal welfare and conservation evolve, this bill represents an unprecedented opportunity to reconcile conservation and welfare priorities — transforming welfare while mitigating extinction risks.
Care for the Rare’s assessments of species’ needs — including elephants, apes, big cats and bears — reveal novel insights but also reinforce a personal belief that while unmet welfare priorities may be widespread, they need not be an inevitability but, rather, a challenge that this bill can tackle head on.
Our innovative welfare priority assessments have garnered the endorsement and input of nearly 200 international scholars, animal welfare experts and conservation, zoo and sanctuary professionals, and are guiding us towards potentially transformational welfare solutions.
A picture is emerging that the need for animals to travel in pursuit of self-selected, species-appropriate, motivated outcomes and opportunities — as they would in the wild — is perhaps the most important, yet widely overlooked, welfare priority, which is responsible for much of the stereotypic behaviour we see in captive animals.
Leveraging these insights, Care for the Rare, FOUR PAWS International and the U.K.’s Open University are creating revolutionary, dynamic habitats for rescued tigers designed to replicate targeted, welfare-critical characteristics of the wild to address neglected behavioural and cognitive needs, therefore providing a blueprint that could transform the welfare of all species subject to habitat compression in captivity including elephants and apes.
I urge you to share our ambition for the welfare of elephants, apes and other species at risk while recognizing the value of captive breeding in the midst of an unfolding extinction crisis.
Therefore, I encourage you to expand the bill’s scope to include, at a minimum, all primates, big cats, marine mammals and large reptiles, and to require that institutions comply with ambitious, evidence-based welfare standards regardless of species, conservation role or individual need. By adopting such an approach, the bill stands to more effectively safeguard welfare and support conservation, aligning with societal expectations and mirroring the success of comparable legislation in other jurisdictions. Thank you.
The Chair: I want to thank you all for your remarks and for giving your valuable time to answer questions from the committee. We will now proceed to questions from senators.
I’d like to pose the first question to Dr. Marino. You talked about captivity. You spoke well on that, of course, but can you expand on what you mean by captivity?
Ms. Marino: By captivity, I mean that there is someone who is doing something to someone else. You don’t have captivity unless there is a captor. As I said, captivity is, in the broadest sense, the experience of someone not allowing you to experience life as a member of your own species. Of course, there are a variety and a range of ways that captivity is experienced.
The Chair: Thank you very much. We will now go to the sponsor of the bill, Senator Klyne.
Senator Klyne: I have a few questions. My first question is for Dr. Jensvold.
The committee has heard that Canada’s Convention on International Trade in Endangered Species of Wild Fauna and Flora, or CITES, framework currently requires a permit to import great apes into Canada, with an analysis of whether that import could damage the species’ survival. However, importing a chimpanzee bred in the U.S. at a roadside zoo or as a pet would not damage the species’ survival since there’s no connection to wild populations.
Unlicensed ownership of great apes is currently legal in Ontario. However, for imports of great apes, Bill S-15 would require a licence for best interest, conservation or scientific research.
In your view, can Bill S-15 keep great apes out of the hands of roadside zoos and exotic pet enthusiasts in Canada?
Ms. Jensvold: I do feel that it would provide strong protections because the conditions of licensing would be spelled out. Much of the work ahead is in making sure those conditions are clear. I think that defining what constitutes conservation and research seems an important thing to do.
I do feel like [Technical difficulties] and the living conditions. If a high standard is used or requiring some kind of GFAS or AZA accreditation, that would provide some barriers that would make it more difficult for roadside zoos to obtain apes.
Senator Klyne: Okay, thank you.
I have a question for Dr. Marino. This committee may consider an amendment to allow the judge to order the relocation of individual whales, elephants and so forth in sentencing for legal breeding or performances for entertainment. As president of the Whale Sanctuary Project, do you think this could help in potentially relocating belugas from Marineland to your sanctuary in Nova Scotia if Marineland persists in circus-style shows? Could it help encourage the Ontario government to take additional actions to relocate captive whales to better conditions?
Ms. Marino: Thank you. I do believe this bill can help in that way. Marineland holds several beluga whales and bottlenose dolphins, and we believe — and it’s based upon the science — that these animals are better off in a sanctuary where they have a more natural setting and their autonomy is respected while they are still under human care. So yes, I do believe that.
Senator Klyne: Thank you.
This is a question for Dr. Veasey. A question that’s arisen in what may happen to animals grandfathered in under the bill, particularly elephants: Do you see sanctuaries as a viable option for relocating animals to better situations? How do animals do in sanctuaries? Is there a difference between them and zoos?
Mr. Veasey: We have to accept that sanctuaries are another form of captivity. They have different aims than zoos, and there are a range of quality of sanctuaries. One of the innate challenges with elephants in Canada is the climate, so moving elephants to locations where the climate is more suited to them — that was the basis of my decision to relocate the Calgary Zoo elephants at a time when there was no internal or external pressure to relocate them. It was simply a harsh climate for them to be in.
One of the challenges with sanctuary environments — and I understand and don’t disagree with the rationale behind it — is the denial of breeding opportunities, which can be quite important for the well-being, not just of the mothers but of that social group as well. Like I said, it’s not to say that I disagree with that decision, but it’s important to have that open mind about the pros and cons of various strategies.
Senator Klyne: Thank you.
Senator Batters: Thanks to all of you for participating today.
My first question is to the Fauna Foundation. Given that I’m quite new to this whole subject area, please excuse me if this is self-explanatory, but having been on this Legal Committee for 11 years, we don’t generally deal with these types of bills so it’s a bit new to us. When I look at the Bill S-15, it has as its definition of “great ape”:
great ape means any species of the family Hominidae, excluding the genus Homo.
That’s not the type of definition we would normally see in an amendment to the Criminal Code. You would have to refer to something else entirely — a scientific definition that is not included in the bill and, I’m presuming, maybe not even in the regulations to the bill. Could you please tell us whether you think that’s an appropriate definition or whether there should be a more specific definition that actually spells that out either in the bill’s definition itself or in regulations?
Ms. Jensvold: I think what you described would include non‑human apes. “Homo” generally refers to humans.
Another way to do it would be to simply list the genre that it intends to include. I have some of that in my statement, but you can spell out that you have Congo gorilla pan and then that says specifically that it’s the large-bodied ape. Without getting too deep in the weeds, there are small-bodied apes, gorillas, et cetera, but they are not considered great apes. One way to do it might be to list the ones that you absolutely intend to be included.
Senator Batters: Okay. Your sound was a little bit cutting in and out there. Did you say that gorillas would not be considered to be a great ape under that definition or they would be?
Ms. Jensvold: They would, yes. In that definition, only humans would be considered not a great ape. But another way to do it would be to list the genre, so the genus of each taxonomic group, that you intend to include.
I don’t know where I cut out.
Senator Batters: Although you are a scientist, I am not and many Canadians reading the Criminal Code are not, so I think that could be a helpful part of this.
This question is also for the Fauna Foundation. The sponsor of Bill S-15, Senator Klyne, has praised the four locations holding the 30 great apes in Canada for their excellent work and commitment to ensuring the well-being of the great apes in their care. We know the importation of these animals, without explicit approval from the federal government, is already prohibited. I have wondered why it’s necessary to legislate with a criminal law — that’s a very blunt instrument — on an issue that no longer seems to exist.
Could you explain, then, why the Fauna Foundation supports Bill S-15 with respect to that? Do you consider your support primarily symbolic in that way to reinforce the principles of protection for great apes even though those standards are already largely met in Canada?
Ms. Jensvold: Again, as I said in my statement, I do feel like it’s not completely impossible for an ape — maybe even a chimpanzee — to be imported into Canada. Even CITES says that we are not supposed to be moving endangered species, that happens all the time across international borders.
So I just don’t feel that, without this bill, we would be assured that we wouldn’t end up with apes ending up in unaccredited facilities or facilities that are outside of the four that are listed.
Senator Batters: Okay.
I will go on a second round, thank you.
Senator Dalphond: I would like to explore two aspects related to captivity. I will start with Dr. Marino, and then I will come back to you, Dr. Veasey.
Can you expand a bit on the line of the very good questions that the chair asked you to elaborate a bit more on captivity? You said captivity is when someone is preventing the animal from experiencing wildlife. I understand that a cage in a zoo or a very limited enclosure is clearly preventing an animal from experiencing wildlife in many aspects, but is it possible to recreate, in your opinion, a setting that would be enough to say that they are no longer in captivity? I think this is one of the arguments which is being raised about the African Lion Safari in Ontario. They say that it’s huge — 200 acres — therefore animals are really not feeling the captivity.
I think you relate captivity to the feeling that the animals are restrained and experience brain and behavioural consequences.
Ms. Marino: Thank you for your question.
If I may, I don’t relate captivity entirely to the feeling of the animals being captive. It has to do with the manifest welfare of the animals that are being held captive. If it were the case that any zoo, including the one you mentioned, could completely replicate the wild environment, then we wouldn’t see the kinds of welfare problems that we see in captive elephants, but we do. Those welfare problems are telling us that we cannot replicate a natural environment. The natural environment is the only environment in which they can thrive.
Senator Dalphond: Thank you. I now go to you, Dr. Veasey, because you were quoted as having said:
It is important to understand that we don’t necessarily need to replicate everything animals experience in nature, but we need a much more sophisticated approach so we can target our resources in delivering the things that matter.
Could you elaborate on that?
Mr. Veasey: I can give you a very clear example. We approach welfare assessments slightly differently. The majority of welfare assessments are based on reviewing the lives of animals lived within captive environments, so we can only assess the value and the impact of the opportunities animals experience at that time.
We see welfare problems in captive elephants and apes. We make inferences about what causes them, but if these animals are denied opportunities to roam and to migrate, et cetera, we can’t quantify the impact of those constraints.
We took a very different approach. We looked at identifying what would be important for animals based on their behavioural ecology. This is premised on the fact that there is a relationship between evolution and animal welfare. The more evolutionary significant the behavioural cognitive process is, the more frequently and more strongly it will be motivated. Therefore, the greater the welfare risk if animals are frustrated in expressing a behaviour.
We have to regulate this input by looking at where the stimulus of these behaviours come from. The desire to seek food is of high survival significance, and there is something which we need to empower animals to do. Equally, the desire for a zebra to escape a lion is highly motivated when it’s expressed, but it’s triggered exclusively by the perception of being attacked by a lion. We can be quite comfortable about captivity and preventing predatory attacks by lions improving the welfare of captive zebras over and above what we see in the wild.
Our process enables us to quantify all behaviours and cognitive processes and prioritize them according to the needs of animals. To give you one quick example of how this is transforming our understanding of the needs of animals, a number of the speakers here today have expressed concerns about big cats, in particular, tigers. There are more tigers in captivity worldwide than there are left in the wild by some order of magnitude, and they pretty much all universally pace.
Zoos, because they want to do the right thing by their animals, have focused heavily on providing feed-based enrichment. That is, on the assumption that hunting is very enjoyable, they have created opportunities for tigers to hunt on a regular basis. So they are typically fed smaller, more frequent meals. This eliminates the stomach from distending, which is the trigger to shut down that motivation to forage. As a result, they’re chronically frustrated in their desire to seek food in an environment in which they cannot secure it.
So because we misunderstood what the issues were, the solutions have the potential to make things worse. We discovered that in the behaviours associated with maintaining a territory — intentional travel and information gathering — are more important to the welfare of a tiger than behaviours related to hunting. Tigers have a flexible relationship with hunting and a fixed relationship with territory maintenance.
If a tiger finds a dead carcass — that is a buffalo, or whatever — in the forest and if it has an opportunity to steal a carcass, as long as that meal is big enough, it instantly shuts down that motivation to go looking for food. What it does not do is shut down that animal’s need to maintain and defend a territory, which requires it to travel with purpose and intent and gather information.
We are, I believe, on the cusp of a new era in animal welfare where we need to step away from being reliant upon assessments of the status quo that don’t allow us to break out of the constraints of current management paradigms, which is what we’re doing at this radical experimental facility in Germany.
Senator Simons: I want to start with Dr. Jensvold. I want to understand this: What’s the difference between a chimpanzee sanctuary and a zoo? How would these new rules apply to the facility where you are based?
Ms. Jensvold: Regarding the difference between a sanctuary and a zoo, you can look to the mission of the organization. Zoos often have a mission of conservation and education. They have visitors coming in all the time. At a sanctuary, their sole reason for being is to provide for the individuals that are living there. They usually don’t have visitors coming through all the time. If you’re accredited by GFAS, visitors have to be accompanied.
All decisions are based on what’s best for the individuals that are living there as opposed to maybe at a zoo where you need to have the chimps on exhibit so the public can see them. You may be making decisions in a day as an animal manager based on what’s best for the public that day rather than the individual. You don’t have those sorts of conflicts in a sanctuary setting.
How will this bill affect Fauna? I understand we would be grandfathered in. Fauna is not bringing any new individuals into the sanctuary. There are no other chimpanzees in Canada. Our mission will be over when we have provided for the individuals that are there.
Senator Simons: That would include providing them with birth control so there would be no natural breeding?
Ms. Jensvold: That’s right. Thank you for raising that. Indeed, the chimps are all on birth control. One of the defining differences between a true sanctuary [Technical difficulties] is that no breeding is occurring, and we use birth control pills and vasectomy, that kind of thing.
Senator Simons: All right. Dr. Veasey, because you’re not going to freeze when I ask the questions of you, the original Jane Goodall act encompassed large cats and also crocodilians. I don’t think anyone in these hearings, though, has talked about large reptiles.
One of the problems, I think, with the way the bill is structured is that it works from a presupposition that great apes and elephants deserve special consideration because of their intellect. Crocodiles are not that smart, but I also don’t think it’s a great idea for people to be owning crocodiles and alligators in this latitude.
If we were going to add large reptiles and probably big cats, I think the preamble of the bill works against being able to do that. Since you’re the first person who’s raised it, as best I can recall, can you make the case for why large reptiles ought to be encompassed in this legislation?
Mr. Veasey: I think there is a tendency for these to be bought by enthusiastic, naive pet owners who end up with animals that are far bigger than they necessarily anticipate. There are dangers with them. We have known of recent deaths here in Canada caused by pet snakes. They are not species that necessarily complain in the same way that mammals do. They don’t necessarily stereotype in the way that mammals do. They don’t express emotion in the same way that the mammals do, but we certainly can’t assume that they are incapable of suffering.
It’s a combination of the health and safety risk of such big reptiles and their ability to just limp on for many years in substandard conditions.
Senator Simons: I think the original goal talks about crocodilians. Would you talk about snakes and tortoises as well?
Mr. Veasey: My personal preference is that I would include any wild animal in a zoo, potentially any non-native wild animal in a zoo, if it were down to me, and have this as a more generalized zoo licensing act. I can see that’s not where it’s going. Certainly, there are animals that are more at risk from welfare challenges than others.
Senator Simons: I’m not worried about the ones that are in zoos than the ones that are in people’s bathtubs, backyards or roadside attraction stands. That’s what concerns me.
I’m not always happy when I go to the Edmonton Valley Zoo and I see that they have two tigers in one enclosure because I think that’s suboptimal, but I’m less worried about those tigers than the ones that might be in a “Tiger King”-like scenario. What would you say about having regulations to keep these animals — some of which are really dangerous — out of the hands of enthusiastic amateurs?
Mr. Veasey: Absolutely. I’m originally from the United Kingdom, and the U.K. had a dangerous wild animal act and a zoo licensing act back in the 1980s that makes it effectively impossible to have big cats in captivity.
One of the advantages of that bill is that it doesn’t mandate what good looks like. There is a guidance document that evolves over time so that it constantly keeps up with the science, and that is a broader zoo licensing document that has implications for animals whether they are on show to the public or not.
Senator McBean: Dr. Jensvold, you said in your opening remarks that you recommended that we look to a clear definition of “conservation” and “research.” In your opinion, what gap exists without this? Maybe speak to each of the words independently.
Then I’m going to follow up with you, Dr. Veasey, because you suggested something similar.
Ms. Jensvold: I’ll start with “research” because I think you would need to define what kind of research, whether it is invasive research or whether it is non-invasive research, because the way it is, it sounds as if you could be using apes in biomedical research or some other kind of really invasive research.
I would have language that describes what kind of research is allowed and use non-invasive and behavioural research.
Senator McBean: “Conservation” was the other one.
Ms. Jensvold: I really think that, in my humble opinion, the idea that we are conserving gorillas and chimpanzees by breeding them in captivity in Canada and North America with the idea that the species, if they go extinct in the wild, that this is going to be the ark where we would be saving them is just not possible. They are incredibly cultural beings, and individuals that are living in cages in zoos and sanctuaries do not have any of the skills that they would need to live in the wild [Technical difficulties].
There are sanctuaries in Africa where the individuals that they are doing this with, for the most part, are orphans, so they have had some experience in the wild. They are actually doing this in Indonesia as well, and they have spent years teaching them how to live.
There was a chimp who learned American Sign Language in the 1970s, and she was returned — well, not returned because she wasn’t born in the wild, but she was sent to Africa. Her name was Lucy, and Lucy became very depressed. She stopped signing and stopped interacting with other individuals. She was miserable. She had been raised in a home and was used to the life that she was leading, and ultimately she was poached by hunters. To me, it is not something that is a reality.
I would also say that it seems like kind of a loose term, and I’m not a conservation biologist, but I do think that it would be important to have the term “conservation” well defined. I just feel as if it is very loosely used to say, “Well, we are breeding them, and it’s in the name of conservation.” I don’t completely buy that, and I do think it would need to be defined.
Senator McBean: You said it was narrow. What are your thoughts?
Mr. Veasey: I think one of the concerns I have with the bill is it seems to almost set a zero-sum game between animal welfare and conservation. I feel that this bill, understandably, started with concerns about apes and elephants, and there has been a reaction from the zoo community. It’s like, “Okay, we’ll park you guys over there because you do conservation, and the legislation will fall out of everything else.”
I agree 100% that there needs to be a very clear demonstration of what that conservation impact can be, and that can be multi-faceted. It can be resources diverted to institute conservation. We have less than 3% of mammalian biomass on the surface of the earth made up by wild animals, and I don’t think we can guarantee we will not be using these animals in several generations’ time to restore habitats and ecosystems.
Certainly when Przewalski wild horse and Père David’s deer were brought into captivity, they were not brought there for conservation needs, but they went on to resurrect those species in the wild. I don’t presume to judge what the future holds in terms of what may or may not be possible.
Regardless of whether an animal is involved in a conservation program or not, I feel it should still benefit from more stringent welfare protections. It shouldn’t be one or the other, and that is something that is lacking in this bill.
[Translation]
Senator Carignan: My question is for Ms. Jensvold from the Fauna Foundation. Are you in Carignan at the moment?
[English]
Ms. Jensvold: No, I’m not.
[Translation]
Senator Carignan: I want to make sure I’m addressing the right person. Is your foundation located in Carignan, next to the residential area, near the Ruisseau Robert Nature Conservancy?
[English]
Ms. Jensvold: Yes, the sanctuary is located [Technical difficulties] there is a lot of development around the sanctuary. We have close to 300 acres now, so there is a large buffer around us. But yes, there are neighbourhoods that are close by.
[Translation]
Senator Carignan: I am on your website. I understand that you have monkeys that come from research laboratories. However, you’re in Quebec, in an area I know well, the Carignan region — which has nothing to do with my name.
Your website states the following:
We do not allow any of our Fauna residents to be removed from the Sanctuary. Fauna is their permanent and final home. We provide them with food, shelter, medical attention, companionship and the enrichment they need in order to lead lives as happy and healthy as possible… free from the fear and hardships they have known.
How do you achieve this with monkeys in captivity, according to your definition, so they can be fulfilled, healthy and happy? It’s cold in Quebec.
[English]
Ms. Jensvold: We do embrace that this is captivity. So much of what we do is really trying to bring as much joy and sunshine into a chimpanzee’s life every day. We provide them with a variety of activities. We look at what chimpanzees need as a species. We provide them with good food, we have a chef who comes in and prepares meals for them. We give them activities in which they can use tools, they can forage for food, they can colour, maybe blow bubbles and some of them have iPads that they watch. Because chimpanzees are social, the most important aspect of their lives is the social environment. We make sure that the individuals that are taking care of them, the humans, are ones who are very well trained, have a knowledge of chimpanzees behaviour and are good friends of the chimps. If you are in the neighbourhood, you might hear the chimps pant hooting in the morning when their caregivers arrive. Those are sounds of joy and happiness.
The enclosures are very diverse. We do have a large inside building divided into suites of enclosures. It has three different levels with different areas they can move around in. There are islands that are surrounded by an electric fence and moat. The islands just opened yesterday. They are closed during the winter. Then there are tunnels — chutes that are elevated. The chimpanzees can walk around those. They have access to those all year. They have heated mats, and they are covered.
Two of the chimps sign. Tatu will tell us even in the darkest, coldest days of January she wants to go outside. She may not go out for long, but she does go out.
The Chair: Thank you.
Senator Pate: Thank you very much. One of the questions that some of us were discussing earlier was, if this bill passes and comes into force: What happens to the animals currently in captivity? What recommendations would you have, if any, to improve the bill to address the animals and how they would be cared for moving forward?
Mr. Veasey: I don’t know the exact composition of elephants and apes in Canada. My concern would be that if the bill came into force it would be very much the status quo.
Certainly, with regard to elephants, I assume all facilities would make a claim that they are part of a captive breeding program or a conservation program. There is obviously the exception of Lucy, but the narrative from the Edmonton Valley Zoo is that the animal cannot be moved on very specific health grounds.
I don’t know the ape side of things too well. I suspect the situation would stay the same, which I think is unfortunate because I think if you are looking to improve the bill, there needs to be some animal welfare impetus behind maintaining standards that are compatible with the latest emerging science. Not necessarily simply compliant with regional accreditation standards because I think, as Ms. Marino has spoken to, there is plenty of evidence that animals are not necessarily doing well in accredited zoos, so it is actually putting in place a framework that standards can be progressively maintained as the science advances.
Senator Pate: Thank you.
Ms. Marino: I think one of the problems with a lot of these kinds of bills is that we get grandfathering. What that does is lead those individuals who are currently not in the best situations into that situation. The elephants should be moved to sanctuaries — that is clear — as long as it doesn’t endanger their lives. Again, I think that if these kinds of bills cannot necessarily include a grandfathering clause, then I think that would improve them.
Senator Pate: Thank you.
Ms. Jensvold: I think that they have said it all. In terms of apes, as I said, at the Fauna Foundation, we have an elderly population. I don’t anticipate there will be chimps there in the next five to ten years.
At the zoos, with the conservation narratives, they will probably continue to breed with the individuals that are there. There is no gorilla sanctuary, and there is one orangutan sanctuary in Florida, but it would take a lot of money to move them. I think that just leaving them where they are and making sure that having new welfare assessments occurring might be one route to go with, but I don’t know where those gorillas and orangutans would go.
The Chair: Thank you very much for taking the time to speak to us today and preparing for this. We appreciate your time.
Ms. Marino: Thank you.
Ms. Jensvold: Thank you.
The Chair: Honourable senators, we are resuming to continue our study of Bill S-15. Senators, we will be stopping a little early today because we have an in camera meeting for about 5 or 10 minutes afterwards.
For our second panel, please join me in welcoming from Animal Justice, Kaitlyn Mitchell, Director of Legal Advocacy; and, as an individual, Angela Fernandez, Full Professor, Faculty of Law and Department of History, University of Toronto. Welcome. We will ask you to make your presentations, starting with you, Ms. Mitchell.
Kaitlyn Mitchell, Director of Legal Advocacy, Animal Justice:
Thank you. As Canada’s leading national animal law organization, Animal Justice urges this committee to support Bill S-15. As you’ve heard, great apes and elephants are incredibly intelligent, social animals with complex physical, psychological and behavioural needs. They suffer when held in captive facilities that cannot meet their fundamental needs, and should not be kept in captivity merely for human entertainment.
There are few rules or regulations restricting the keeping of wild animals in captivity in Canada. A grossly inadequate, legally inconsistent patchwork of federal and provincial measures coupled with weak standards and partial oversight of some facilities by industry associations have resulted in the proliferation of substandard zoos and private ownership of wild animals. This situation threatens animal welfare, public health and safety and conservation of wild animals.
With Bill S-15, Canada has an opportunity to begin to address this problem and to become a global leader by establishing effective, science-based animal protection legislation.
I will focus our remarks today on five key amendments that we believe are vital for Bill S-15 to be truly effective. These amendments are straightforward, science-based and would make meaningful improvements for animals.
First, we ask you to include big cats, such as tigers and lions, in Bill S-15. Animal Justice has joined with leading national animal protection groups and four Canadian zoos to collectively urge you to add big cats to this bill. This could be accomplished by adding a separate “Tiger King clause” to the bill or by simply adding the words “big cats” throughout the existing bill where elephants and great apes are referenced.
Though the popular documentary “Tiger King” was filmed in the United States, make no mistake about it: Canada has its own “Tiger King” problem. It is estimated that hundreds or even thousands of big cats and their hybrids are kept as pets or for entertainment purposes in Canada.
Just last summer, Animal Justice visited zoos across Ontario, both large and small, and gathered absolutely heartbreaking footage showing lions, tigers, cheetahs and other big cats languishing in substandard facilities, with many exhibiting clear stereotypic behaviour such as repetitive pacing. We also documented dangerous conditions at several facilities, including lions in small cages with low fencing and no top on their cage to prevent an escape. While many of these facilities were smaller roadside zoos, it is worth noting that several were accredited by Canada’s Accredited Zoos and Aquariums, or CAZA.
Animal Justice also conducted an undercover exposé of Papanack Zoo near Ottawa in 2016, which showed staff bragging about punching a lion cub in the face, among other incredibly troubling conditions at that facility.
Big cats should be added to the framework set out in Bill S-15 by which captive animal permits would be issued only where it is in the best interests of the animal or where they are held as part of a bona fide research or conservation program that benefits wild populations.
The second key amendment that we ask you to consider is to include a mechanism, often called a “Noah Clause,” whereby protections can be extended to additional species of animals in the future where scientific evidence shows that such protections are warranted. It would avoid the necessity of another protracted process of introducing and passing another bill to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, or WAPPRIITA. Again, Canada’s leading animal protection groups and zoos are all in agreement that adding a “Noah Clause” is a key way to strengthen the bill.
The third amendment that I ask you to consider is tightening the language in the bill around permits issued for scientific research and conservation. I worked extensively on the implementation of Bill S-203, which bans the captivity of whales and dolphins in Canada. As that process has shown, and as this committee has likely observed, facilities keeping animals commonly claim that they are conducting highly valuable research even when the research is not meaningfully benefiting wild populations. Bill S-15 must be clear that permits will be issued only for scientifically justified research that supports the conservation of wild populations. Again, Canada’s leading zoos are in agreement that this amendment is necessary.
Fourth, we ask that elephant captivity be phased out in Canada. While there may be programs involving great apes at some facilities that are meaningfully benefiting wild populations, elephants held at Canadian zoos are very a different story. They are never released into the wild or otherwise held for the genuine benefit of wild populations. Prevailing scientific opinion is that elephants cannot be humanely kept in confinement, and there is a global trend away from keeping elephants in zoos.
Finally, we ask you to add clarifying language to ensure that the bill’s prohibition on using elephants, great apes and, hopefully, big cats in performances for entertainment also includes a prohibition on elephant rides and the use of animals like tiger cubs as selfie props. Activities such as these put vulnerable animals at risk and send a dangerous message to children and others that exploiting animals for entertainment is acceptable.
Elephants, great apes and big cats deserve our respect and compassion. Thank you for your attention to this crucial bill. I look forward to answering your questions.
The Chair: Thank you. Now Professor Fernandez.
Angela Fernandez, Full Professor, Faculty of Law and Department of History, University of Toronto, as an individual: Thank you. Good afternoon, members of the committee, and thank you very much for the invitation to be here. I am Professor Angela Fernandez, and I am here today to present my submission in support of Bill S-15. My presentation will focus on why Bill S-15 is a valid exercise of Parliament’s powers under the Constitution Act, specifically pertaining to the federal criminal law power under section 91(27) and the power to pass laws concerning international and interprovincial trade under section 91(2).
If you have this sheet with the boxes on it, I’ll be following along with that. If it has been circulated, that would be great.
To determine the constitutional validity of a bill, we must first identify its “pith and substance.” That is to say, the core purpose and effect of the legislation.
The Chair: Did you just circulate it?
Ms. Fernandez: I think the clerk had said it was circulated. I feel like some people maybe have copies.
The Chair: And it’s in both languages?
Ms. Fernandez: Yes, it has been translated.
The Chair: It’s okay. Go ahead.
Ms. Fernandez: Step one is to determine what is the “pith and substance,” or the core purpose and effect of the legislation. So we look at purpose and effects, and here in terms of purpose, Bill S-15 aims to protect animals, as you know, particularly elephants and great apes, from the cruelty associated with captivity.
In assessing this purpose, what we do is look at both the intrinsic evidence and the extrinsic evidence. Intrinsic evidence will come from the bill’s preamble, and extrinsic evidence from Senate Debates and government documents. All of these in this case confirm the focus on animal protection.
In terms of effects, there is not really a difference here between legal effects, which are those flowing directly from the statute, versus practical effects, which are effects that flow from the application of the statute, so I won’t spend a lot of time on that. But the overriding legal and practical effects align with this bill’s purpose, namely, to address the moral concerns associated with the keeping of captive elephants and great apes.
If you have the sheet, if you could flip it over to step two. This is classification. Once we have identified the “pith and substance,” or the core of what the bill is about — animal protection — we then need to classify it under either section 91 or section 92 of the Constitution.
Here I’ll go to international, interprovincial trade to the right. That’s a little more straightforward. In terms of federal jurisdiction, it is very clear that the amendments to WAPPRIITA fall within Parliament’s jurisdiction over international and interprovincial trade in section 91(2). By regulating the importation and exportation of elephants and great apes, Bill S-15 addresses trade-related aspects of animal protection.
Then, in terms of the criminal law power, we want to know whether Bill S-15 is a valid exercise of the criminal law power. We need to ask whether, in addition to setting out a prohibition and penalty, which the bill does — it prohibits the captivity, and you are penalized if you violate it — we then ask if the bill has a valid criminal law purpose. The test for doing this is whether, in pith and substance, the law represents Parliament’s response to a threat of harm to a public interest. These are traditionally the ones that are protected by the criminal law, such as morality, safety, peace, security or another similar interest.
Animal cruelty, in this context, is related to both morality and, in my opinion, also public safety. This would certainly be true if the bill were amended to include big cats, but it’s also true in the case of elephants and great apes. Safety inside facilities for things that can happen — at African Lion Safari, the animals are jumping on the cars and that kind of thing, you could see how something could happen there — and also safety relating to the possibility of escaped animals.
While the prohibitions and penalties in Bill S-15 would have an impact on persons and organizations owning animals, being property within the province under section 92(13), the fact that federal criminal laws impact on areas of provincial jurisdiction does not render them invalid. This is because the courts have held that subjects that, in one aspect and for one purpose, fall within section 92 may, in another aspect and for another purpose, fall within section 91. So animal protection is one of those shared areas of jurisdiction. This principle is known as the double aspect doctrine.
Here, the fact that Bill S-15 will touch on property cannot invalidate otherwise constitutionally valid criminal law. So if a court decides that this is a matter in relation to criminal law, which is basically to say that it is mainly about criminal law, the fact that it has incidental effects on property and civil rights is actually constitutionally irrelevant.
If you think about this, most criminal law will be impacting property. Firearms will be property in the province. Cars being driven by intoxicated people are. Drugs that are being seized in that kind of a crime are. Houses destroyed by arsonists are.
That is not relevant to the constitutionality of the bill. What matters is that the dominant characteristic of the bill — and here we are talking about relationship to morality and public safety — that’s what matters rather than what the law will incidentally effect.
The Chair: Thank you. We will now go on to questions.
Senator Klyne: I have a few questions for Animal Justice.
CAZA has opposed Bill S-15 and submitted that the status quo represents the legal ideal for elephants and great apes in Canada, and that their private organization is the ideal regulator of wildlife captivity in Canada. How do you respond?
Ms. Mitchell: Thanks for the question.
Yes, we have seen those claims, and we have seen them made several times before this committee, as you have as well. So I have a few points to note. CAZA’s standards are quite vague and, in some cases, unenforceable. They are standards that are not based, as you’ve heard, on the biology of animals and the needs of animals alone. Instead, they are based on other practical realities, like zoos’ budgets, their space and so forth.
So we certainly do not see CAZA standards as being gold standards by any stretch. Also, because it’s an organization that is a private body that oversees these facilities, there’s a serious lack of transparency as well. We certainly have concerns about maintaining the status quo at CAZA facilities or recognizing standards created by CAZA in any laws.
Senator Klyne: Okay, thank you.
I will get you to elaborate on the “Noah Clause” for a moment. You proposed in your remarks that Bill S-15 include a measure from a previous bill of mine and the Honourable Murray Sinclair to establish an executive authority to protect additional captive wild species for animal welfare and public safety reasons. For example, you mentioned bears, monkeys and dangerous reptiles. As you stated, this is known as the “Noah Clause” after Noah’s ark, and such additional wild species may gain legal protection in captivity.
Can you please comment on why this would be positive in Canada?
Ms. Mitchell: This would be an incredibly positive step and would also allow the law to develop in tandem with science and our societal values. What you’ll see in the letter that we submitted with leading animal protection groups and with four zoos is that we believe that this is an absolutely important mechanism to add to this bill. We have even identified some species that could be prioritized in the future. For instance, we have collectively identified bears; all native big cats; non-human primates; large constrictor snakes; and crocodiles, which were spoken about earlier, as species for consideration in the future.
We recognize that they are not being included right now — that’s the practical reality — but we certainly think it’s important to have a clause so the Governor-in-Council or another body can incorporate these animals and give them the protections they so desperately need.
Senator Klyne: Thank you.
You had referenced the letter from Toronto, Calgary, Granby and Assiniboine zoos, as well as the Jane Goodall Institute of Canada and other animal welfare NGOs. In that letter, you did propose amending Bill S-15 specifically on exotic big cats, such as lions and tigers. In addition, World Animal Protection Canada estimates that there are over 7,000 lions, tigers and leopards, which you also alluded to in your remarks, that are privately owned in Canada.
Can you please explain this proposed amendment? Do you see both animal welfare and public safety advantages?
Ms. Mitchell: I absolutely see both animal welfare and public safety advantages. As a lawyer, when I look at the statute, the easiest way to include protections for big cats would be simply to add the word “big cats” where we see “elephants” and “great apes” already referenced. There might be other ways to accomplish it.
This would recognize that there is clear and compelling scientific evidence that the behavioural, biological and social needs of big cats cannot be met in captivity, particularly in roadside zoos and private collections. The impact would be huge and incredibly meaningful for animals. Practically speaking, it wouldn’t be too difficult an amendment to make. As I said, when Animal Justice visited Ontario zoos last summer, we saw horrific conditions from an animal welfare standpoint but also genuinely frightening conditions from a public health and safety standpoint. Both of those urgently need attention.
Senator Batters: First, to Professor Angela Fernandez, in your letter addressed to our committee, you discussed the constitutional validity of Bill S-241, and you stated that your arguments also applied to Bill S-15. Justice Karakatsanis of the Supreme Court of Canada stated in the Genetic Non-Discrimination Act decision that:
. . . Targeting conduct that merely implicates central moral precepts will not suffice as a criminal law purpose; the conduct must threaten those precepts.
What are the moral precepts that are threatened by the detention of elephants in human care in Canada, such as African Lion Safari, where elephants are well treated and have 200 acres to roam? What is the threat to our central moral precepts?
Ms. Fernandez: The way that morality plays here is just connected intimately to the idea of captivity. We have been talking, and you have been hearing in this committee, a lot about how “captive” does captivity need to be before it becomes cruel. My understanding of what Dr. Marino was saying is if you really have captivity that is impeding the animals’ behaviour, then that is cruel. Cruelty is simply then connected to morality.
That is a standard accepted as a constitutional matter for criminal law. So while there might be some situations where you might think that the connection is not close enough, certainly animal welfare is not one of them. It is standard to accept this to be an issue of morality, and then under the criminal law power.
Senator Batters: On the issue of captivity — I don’t have the exact quote, but I will definitely get it later — I heard Professor Marino say earlier that captivity is something like someone does something to someone. It was extremely vague.
Do you think that not having a definition or even a size limit or any sort of indication in this bill about captivity potentially creates some real problems when you’re putting something like that into the Criminal Code?
Ms. Fernandez: The questions that are being raised about the definitions — for instance, the question you raised earlier about whether the types of great apes should be listed and things like that — I think those are all excellent questions to be asking, as well as potentially also a definition of captivity or, like Ms. Mitchell is asking for, definitions for conservation and research. This is probably all very good work that could be done to improve the bill.
From a constitutional perspective, I don’t think it’s required. What you will be looking at there is just whether this is within the power of the government. You may even think it’s a bad idea, like the firearms reference. People were talking about how this is not going to work or be effective, and so on and so forth. That is not really relevant. If the government decides they want to do it, they do it and it’s constitutionally permitted, then it’s permitted. I’m just looking at that very narrow slice of things.
Senator Batters: Right, very narrow slice on constitutionality. Criminal law-wise, you’re saying these types of things could be legitimate areas of amendment to actually define these things so that it’s a better bill?
Ms. Fernandez: Absolutely, yes.
Senator Batters: Thank you.
I would also like to ask both of you if you could provide us with recent examples where the current restrictions on the importation of elephants and great apes have been insufficient thus justifying the adoption of new legislative measures within Bill S-15.
I’ll start with you, Dr. Fernandez.
The Chair: We don’t have much time. May I ask that you send the answer to Senator Batters’ question as soon as possible to the clerk, in writing, please? But you have a few seconds, so go ahead.
Ms. Fernandez: I’m not aware of any instances, so I’ll defer to Ms. Mitchell.
Senator Batters: Ms. Mitchell, are you aware of any?
Ms. Mitchell: Most of my experiences with WAPPRIITA and CITES permits come from the citation context. I would say that there is a problem because we continue to import animals into Canada, big cats in particular. I do have the data on CITES permitting that goes back to about 2004.
There is a problem. We’re importing big cats into Canada for personal use. We absolutely shouldn’t be doing that. Elephants are imported into Canada. I believe 2021 is the most recent example, but I’d have to confirm.
CITES is a different document. It doesn’t ask the overall questions: Are these animals that we should be bringing into Canada? Do they fare well in captivity? Those are not the questions that CITES asks. It is a different permitting system altogether.
Senator Batters: I’m asking specifically about elephants and great apes because that is what’s dealt with in the bill. Thank you.
Senator Dalphond: Some people have questioned the use of words like “cruelty” and “captivity,” et cetera. Do you see those as being vague concepts or are they sufficiently defined concepts such that they would be enforceable?
I want to draw your attention to section 445 of the Criminal Code involving causing unnecessary suffering and this sort of provision that was added for dolphins and whales, referring to captivity as a concept.
Are we breaking new ground here or just following existing provisions?
Ms. Fernandez: I would say there’s no vagueness problem here. If there is a vagueness problem, it’s a problem we’ve had for a very long time. We’ve had those Criminal Code provisions since the 1890s, probably. It seems to be sufficiently well understood in terms of what we’re talking about when we’re talking about cruelty, absolutely.
In terms of captivity, similarly, because the whale and dolphin bill is also premised on that and this is a continuation of that line of thinking and the precedent that has been set, I would say it is well understood.
Senator Dalphond: Are you aware of prosecutions that were done pursuant to 445.2(2)(a) with regard to cetaceans? It reads:
(2) Subject to subsections (2.1) to (3.1), every person commits an offence who
(a) owns, has the custody of or controls a cetacean that is kept in captivity;
I think charges were laid against some owners of parks. Were they claiming that the concept of captivity was vague or was the Crown losing cases because the word “captivity” was found there?
Ms. Fernandez: Not to my knowledge. I think the cases you’re referring to involved Marineland. My associate and I, Krystal-Anne Roussel, run a Canadian Animal Law Digest where we do updates on the law. When we were covering those cases, no issue like that came up.
Ms. Mitchell probably knows more about those cases. She might want to weigh in.
Ms. Mitchell: For some reason, at the beginning of the question, the audio cut out. I hope I am answering the correct question here.
I think the Marineland cases we’re discussing had to do with charges laid under the new law as amended by Bill S-203, which were stemming from shows for entertainment. Marineland was, at that time — and we’ll see what happens this year, if they do open — holding what’s called dolphin dance parties. We said that that appears to violate the new law. That is clearly for entertainment. There is loud music playing, crowds are cheering and dolphins are doing tricks. Charges were laid against them. Ultimately, the Crown decided not to pursue those charges.
My understanding is that it wasn’t a question of vagueness. They determined that it wasn’t in the public interest — a conclusion that I clearly disagree with. My understanding, again, is that it isn’t so much a vagueness issue; it was the Crown’s decision.
As I said, I think here we have a great opportunity. We could tighten up the language on entertainment and make sure that dolphin dance parties or the equivalent with other animals would be captured.
Senator Dalphond: Thank you.
[Translation]
Senator Carignan: My question is for Ms. Fernandez. If you were here earlier, you may have heard the witness from the Fauna Foundation explain how monkeys could be in captivity in Canada, in quite a cold area, and still be happy and fulfilled, with iPads and everything. So there’s nothing resembling cruelty.
Don’t you think the risk of linking “captivity” with “automatic cruelty” might be fatal to this part of a constitutional challenge?
The Fauna Foundation is a fine example. Don’t you think we can regulate the parameters for keeping or nurturing animals to avoid any cruelty?
[English]
Ms. Fernandez: That is a great question. Thank you.
I have not visited the Fauna sanctuary, although I have seen it in various documentaries and so on. I think what’s happening there is that because those animals are rescue animals, there was nowhere for them to go. They were orphaned or they were refugees from research situations and those sorts of things. What they are doing there is providing the best they can for those animals. It’s sort of like what Dr. Marino would be doing with The Whale Sanctuary Project in Nova Scotia. It’s taking them from a place that’s clearly inappropriate — a swimming pool in Marineland — and moving them to somewhere that’s better.
This issue where they will always be in something that’s not as good as what their native environment would be is kind of built into things. This question comes up with Lucy. I sat on a doctoral dissertation of a student at the university last year. He was talking about how Lucy can never go home because home for her is Sri Lanka, from where she was taken when she was two years old.
We’re doing our best, but I think that for some of the situations where the animals are being kept, it is not in their best interests, for their welfare or doing the best that you can do for them; it’s for entertainment or for making profit.
[Translation]
Senator Carignan: Unfortunately, my speaking time is limited.
My second question is for Ms. Mitchell. You testified about the bill intending to ban the export of horses to Japan, for example, or elsewhere, saying it was cruel. You’ve given many interviews on the subject.
The bill does not amend the Criminal Code; rather, it amends the Health of Animals Act.
Don’t you think it would be a more appropriate exercise of federal jurisdiction to use the Health of Animals Act or a certain part of Bill S-15, which deals with another bill, rather than part of the Criminal Code?
[English]
Ms. Mitchell: I think that both bills are a valid exercise of the federal jurisdiction under our Constitution. They are quite different, so I guess that’s why I’m struggling a bit with answering the question. We have the Health of Animals Act, of course, and we have the Criminal Code. We are dealing with bills that would amend two different statutes, but both are targeting cruelty and unnecessary suffering.
We often think of cruelty as being these individual instances of abuse, such as beating an animal, but our criminal law has come a long way. It recognizes that the focus needs to be on causing unnecessary suffering to animals, both the live export of horses for slaughter overseas — which would fall within that concern for me and for the majority of Canadians — and the keeping of animals like great apes, elephants and big cats in captivity. It causes unnecessary suffering and is opposed by the vast majority of Canadians.
The Chair: Thank you very much.
Senator Plett: I was watching the entire proceedings from a different meeting that I was attending, so apologize that I wasn’t here. Unfortunately, we have a government that’s trying to do away with the opposition, so I was dealing with that.
My questions are for the witness from Animal Justice. I have two fairly specific questions and ask that you be fairly succinct in your answers.
Watching it on television, I got the feeling there was a fair bit of criticism towards the organization CAZA and not quite as much towards AZA. Would that be your assertion, namely, that AZA is a better organization than CAZA?
Ms. Mitchell: Certainly, the AZA standards are generally stronger. I don’t want to impugn anyone at CAZA. I’ve actually spoken to some directors there, and I believe there are people working there who are genuinely trying to improve the situation, but it’s a drastically smaller organization. As far as I know, there are fewer than two staff. As I said, the standards are objectively not as strong.
Senator Plett: I appreciate that very honest answer. As you are probably aware, AZA is very supportive of elephants and great apes in captivity, as is CAZA. How would you comment on that, namely that AZA, on this particular issue, are lockstep with CAZA?
Ms. Mitchell: On this particular issue, as you have hopefully seen, Animal Justice has been coordinating with leading Canadian zoos. We have tried our very best to reach agreement on many issues. It will be interesting to hear what the perspective of those zoos is on elephant captivity, but my understanding is that Toronto Zoo, Calgary Zoo, Granby Zoo, and Assiniboine Park Zoo, as well as AZA zoos, are not in favour of continuing elephant captivity at their facilities.
Senator Plett: Thank you. I understand. I’m from Winnipeg, so I’ve been at Assiniboine Park Zoo often. I find it fairly hypocritical that they think polar bears are okay to be in captivity but not elephants. Nevertheless, that’s an issue there. It seems to me that Animal Justice is cherry-picking a bit. When you agree with AZA, you support them; when you don’t, you don’t agree. Nevertheless, thank you for the answer.
You indicated that you had been at a number of zoos in Ontario that were in deplorable situations. It bothers me a bit when these generalized statements are made. Were these CAZA- or AZA-accredited facilities that you visited that were in these deplorable situations?
Ms. Mitchell: Several were, yes.
Senator Plett: Can you name them?
Ms. Mitchell: Sure. We have footage from a number of zoos. I will actually be sharing some of that footage with the members of this committee, so you don’t have to take my word for it. You can see for yourself.
We gathered footage from a huge number of zoos across Ontario, I believe all of them potentially. The two in particular with big cats that are CAZA-accredited zoos were African Lion Safari and Safari Niagara. We also have footage from Burnaby, Papanack Zoo, Greenview Park & Zoo, Jungle Cat World, Killman Zoo and Twin Valley Zoo. I could go on but, as I said, the conditions that these animals are in is heartbreaking — so much stereotypy, pacing back and forth in bare and metal cages. It’s truly unacceptable.
Senator Plett: So very much that would be opinion because I have also been at least at African Lion Safari and a few other zoos, and I would have the opposite opinion.
The Chair: Senator Plett, you have run out of time.
Senator Plett: This is something that would be an opinion rather than fact. Thank you.
Senator Simons: My question is for Professor Fernandez. I want to thank you for the chart because I’m not a constitutional lawyer. I find that very helpful.
The bill as it’s scoped now deals with great apes and elephants. We have heard testimony from a number of witnesses who suggested adding everything from exotic cats, to native cats, to snakes, to tortoises. In terms of the property provisions — that is, the further we move away from megafauna in accredited zoos towards animals that are treated more as pets and property — if we wanted to amend the bill, would we run into constitutional issues if, say, we’re talking about pet boa constrictors? I guess what I’m asking in my awkward way is this: Do they become more like property the less charismatic and intelligent they get?
Ms. Fernandez: That’s a great question. Thank you for the question.
I understand what you’re saying and where you’re coming from, but technically they wouldn’t really be any more or less property. They would still be property. What we would still be wanting to ask about from the constitutional analysis is whether the effects on the property are incidental or not.
I think the greater your concern is on the morality and the public safety side the more that will dwarf the property impact. You mentioned boa constrictors and pythons. There was the case in New Brunswick of two little boys. I feel that is the example that many of us carry around with us in terms of thinking about public safety and why that’s so important for wild captive animals that are really not meant to be there. People are turning them into pets and making them pets. It’s legal for them to do so, but if the government decides, “This is important enough that we want to tell people that you can’t do this anymore” and if it’s a matter of morality and of public safety, they are constitutionally permitted to do that. Incidental effects on the property are just that.
Senator Simons: You talked in your chart about the intrinsic evidence that comes from the preamble. The line being in the preamble makes me a little uncomfortable because it is asserting a scientific fact that which I think is a moral opinion — even if it is a moral opinion for which I have considerable sympathy. It worries me as the header for the legislation because everything that flows from there must, then, be encompassed under that umbrella. For example, when we talk about crocodilians, I don’t care about the morality of keeping crocodiles. I think it’s a dumb idea because they eat people.
What would you say about my concern about the preamble as an impediment to actually amending the bill later on?
Ms. Fernandez: Yes, and I did hear you ask that question last week in the hearing sessions, so I did think about it a little bit.
My concern about taking it out would be that you will then lose your connection to the morality and then to the federal power, the federal jurisdiction.
Senator Simons: You are saying that having that in there is one of the things that makes the bill constitutional.
Ms. Fernandez: It would be very important. We were talking about all these other things that we could amend and make more specific, and so on, which is a good idea. For that one, I would say no.
Senator Simons: Thank you for your help.
The Chair: Thank you. Honourable senators, we have an invitation from African Lion Safari, which is in front of all of you. I thought it would be better to go in camera because it is an administrative thing. But there has been an objection to my desire to go in camera, so we will go in public.
You all have the invitation in front of you. We had a steering meeting yesterday, and the majority thought that we shouldn’t go, but there was consensus to bring it here to the committee.
Senator Batters: I thought that it was important since African Lion Safari is the primary institution in Canada that would be affected by Bill S-15 and they invited us when the witness from African Lion Safari was here at our meeting, and now having this formal invitation sent to each member of this committee.
We have had a number of discussions that have taken place with different witnesses where some people say one thing and others say another thing. I thought this is a great way — and my colleague, Senator Plett, the critic of the bill, and also Senator Carignan, indicated while questioning the witnesses that this could be a very helpful thing to do for our committee, to see it first-hand, since we are going to be making decisions about this bill that definitely impacts this institution. It is very close to our location here, so that is fairly convenient. They hold the largest herd of elephants in captivity in Canada, as is voiced in this bill. I thought we should see the facts ourselves before deciding on this type of legislation.
[Translation]
Senator Carignan: I think we could go to this meeting and site visit for two reasons. Firstly — and Senator Batters touched on this — this organization is among those that will be most affected by the ban. I think it’s a matter of fairness and natural justice to ensure that people who have a point of view to express before a decision is made are given every possible opportunity to enlighten us and share their point of view. I think seeing it in person is much easier.
Secondly, as I was preparing for today’s meeting, I was reading news reports and testimony from the Animal Justice expert, whose name I’ve forgotten, but who testified about the bill that was intended to ban the export of horses. One of her main arguments was that she had been to Winnipeg to see the export area where the horses were kept and had seen with her own eyes that it was cruel. I believe this adds to the credibility and knowledge required to support or oppose the provision we are studying. This has rarely been done by the Standing Senate Committee on Legal and Constitutional Affairs, at least to my knowledge. We haven’t done it often, but under the circumstances, I would recommend it.
[English]
Senator Plett: I have one very quick question, chair, and then I would like to make comments. You said the majority of steering had voted not to do this. Was the full steering committee there?
The Chair: Senator Prosper was not there. The rest of us were there.
Senator Plett: Thank you.
In large part, I want to echo what has been said, but I want to add to it. As everyone knows, I was a critic on Bill S-203 and on Bill S-241, and I’m the critic on this bill. I take my work seriously, and when I decide to sponsor or become a critic of a bill, I study it to the best of my ability. I go and talk to the people whom it will most affect.
I have been at zoos and aquariums from Vancouver through to Toronto, Montreal and Quebec City. I have visited many zoos and aquariums. We have had a number of accusations levelled at zoos, and most specifically at African Lion Safari, and we had it again by Animal Justice just a few moments ago saying that it is a zoo that is keeping animals in deplorable conditions, and all without proof. They’re just simply saying that.
African Lion Safari has done everything in their power to educate us. If they are wrong, they should be proven wrong, without question. They have sent us videos of what they do there, and I don’t know whether everybody here has watched them, but they certainly sent videos to everyone on this committee and, in fact, to everyone in the Senate.
The park is a five-hour drive from here. It would be very easy for this committee to do a one-day trip, either on our way home to our places of residence on a Friday and from there we could go home on Saturday. It would not have to be a large cost to the Senate.
Senate committees have travelled many times. The Human Rights Committee has travelled —
The Chair: Senator Plett, we have to stop at five to 2:00.
Senator Plett: So in plain words, you’re not going to hear testimony and arguments until you’re done?
The Chair: No, I am not speaking. I am just saying we all know the Human Rights Committee has gone. I’m just trying to look at the time.
Senator Pate: Thank you very much. While I’m sympathetic to understanding the issues and visiting, I note that we recently decided not to go to Millhaven Institution when we were studying the impact of segregation on prisoners. It strikes me that, on animals, we could watch the videos and gain the same information. I suggest we do not actually embark on this trip.
Senator Klyne: I think it would be inappropriate for the committee to visit African Lion Safari on taxpayers’ money for several reasons. One, our process at this committee is to hear from expert witnesses, as we did yesterday and today, and then to decide based on the evidence. It is very rare and also expensive for committees to travel on legislation. I know we have travelled and other committees have travelled, but I find this one a little out of category.
For the other reason, senators are not qualified to evaluate elephant welfare or conditions, so even if we went, we — at least I would be outside of my lane to be able to provide some kind of a clear assessment.
Senator Plett: [Technical difficulties] on the Hill.
Senator Klyne: We also, presumably, wouldn’t see problematic practices like the separation of families and the use of bullhooks in winter conditions. In my view, it would probably be a massive lobbying opportunity for African Lion Safari, not that they shouldn’t promote themselves. We heard them promoting themselves yesterday. Thank you.
The Chair: Senator Plett, I will let you for one minute finish on whatever you want because I want you to finish whatever you were saying.
Senator Cotter: I will also cede my time to let Senator Plett finish his point.
Senator Plett: Thank you. We are not scientists. That is one of the things I was going to say. But we are being asked to vote on a bill. We are being told by the sponsor of the bill who, himself, has not gone and visited something that he is criticizing.
We have heard scientists tell us there is irrefutable scientific evidence. We have heard that from both sides of the issue, but, most importantly, we are not necessarily making a scientific decision here. We are making a decision on the social welfare of an animal. It has been promoted the most with elephants — that they are social animals. Every one of us can see and make a determination on the social value, not on the scientific value.
The majority of the testimony around the elephants has been that they are social animals. So why don’t we see whether they are happy and ask them whether they are happy? Apparently, they can talk to us, according to what we heard today. So why don’t we go and ask them if they’re happy?
We have spent hundreds of thousands of dollars. Senator Pate couldn’t go to Millhaven. One. She has been at a number of institutions with committees, including one that they did not allow. We have been with the Legal Committee before when Senator Runciman was the chair. The Legal Committee travelled. It is not unprecedented.
Anyway, Madam Chair, this has been decided by people here. “Don’t confuse me with facts. My mind is made up.” So I’ll just leave it at that, but I’m very disappointed that we are so closed‑minded about taking the time — for somebody whose likelihood is dependent — to let them give all the evidence that they can.
Senator Batters: Just as was briefly mentioned, several years ago, this committee travelled when Senator Runciman was chair. We were studying a government bill about not-criminally-responsible offenders, and our Legal Committee did tour a correctional institute — at Brockville, I believe — to see the conditions there in dealing with that government bill.
With respect to the example cited by Senator Pate, that tour was not done because clause-by-clause had already been done by this committee, so we basically had no further function.
Senator Klyne: I have a question. What is the cost?
The Chair: We have to go to two zoos, and so $50,000.
Senators, I’m in your hands. All those who want to go to the zoo, please say, “yes.”
Some Hon. Senators: Yes.
The Chair: All those who do not want to go to the zoo, please say, “nay.”
Some Hon. Senators: Nay.
The Chair: I believe the “nays” have it.
Senator Plett: I want a recorded vote, please.
The Chair: Okay. Certainly. All those in favour of going to the zoo?
Vincent Labrosse, Clerk of the Committee: The Honourable Senator Jaffer?
Senator Jaffer: No.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Labrosse: The Honourable Senator Carignan, P.C.?
Senator Carignan: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: No.
Mr. Labrosse: The Honourable Senator Cotter?
Senator Cotter: No.
Mr. Labrosse: The Honourable Senator Dalphond?
Senator Dalphond: No.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: No.
Mr. Labrosse: The Honourable Senator McBean?
Senator McBean: No.
Mr. Labrosse: The Honourable Senator Pate?
Senator Pate: No.
Mr. Labrosse: The Honourable Senator Plett?
Senator Plett: Yes.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: No.
Mr. Labrosse: Yeas, three. Nays, eight. Abstentions, nil.
The Chair: Accordingly, the motion is defeated.
Senators, we will continue our meetings when we come back after the week’s break.
(The committee adjourned.)