THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, May 1, 2024
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:17 p.m. [ET] to study Bill S-15, An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act.
Senator Denise Batters (Deputy Chair) in the chair.
[English]
The Deputy Chair: Good afternoon, senators. My name is Denise Batters, a senator from Saskatchewan. I’m deputy chair of this committee and today acting as chair. I invite my colleagues to introduce themselves.
[Translation]
Senator Carignan: I am Claude Carignan from Quebec.
[English]
Senator Plett: Senator Don Plett, Manitoba.
[Translation]
Senator Dalphond: I am Pierre Dalphond, and I represent the senatorial division of De Lorimier, in Quebec.
[English]
Senator Klyne: Good afternoon and welcome. I’m Marty Klyne, a senator from Saskatchewan, Treaty 4 territory.
Senator Prosper: Senator Paul Prosper, Nova Scotia, Mi’kmaq territory.
Senator Cotter: Good afternoon. I’m Brent Cotter, a senator for Saskatchewan.
[Translation]
Senator Clement: I am Bernadette Clement from Ontario.
[English]
Senator Dasko: I’m Donna Dasko, a senator from Ontario.
The Deputy Chair: Before we begin, I would like to remind all senators and other meeting participants of the following important preventative measures regarding earpieces.
To prevent disruptive and potentially harmful audio feedback incidents during our meeting that could cause injuries, we remind all in-person participants here today to keep their earpieces away from all microphones at all times.
As indicated in the communiqué that we received from the Speaker to all senators on April 29, the following measures have been taken to help prevent audio feedback incidents. All earpieces have been replaced by a model that greatly reduces the probability of audio feedback. These new earpieces are black in colour whereas the former earpieces were grey. Please only use the black approved earpiece. By default, all unused earpieces will be unplugged at the start of a meeting. When you are not using your earpiece, please place it face down on the middle of the round sticker that you see in front of you on the table where indicated. Please consult the card on the table for guidelines to prevent audio feedback incidents. Please ensure that you are seated in a manner that increases the distance between microphones. Participants must only plug in their earpieces to the microphone console located directly in front of them. These measures are in place so that we can conduct our business without interruption and protect the health and safety of all participants, including the interpreters who do such good work for us. Thank you all for your cooperation on that.
Honourable senators, we are meeting today 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 Stéphane Beaulac, Professor of Constitutional Law, University of Montreal, via video conference; and Jodi Lazare, Associate Professor, Schulich School of Law, Dalhousie University. Welcome to you both, and thank you very much for joining us. We will begin with your opening remarks before we move to questions from members. The floor is yours for five minutes each.
[Translation]
Stéphane Beaulac, Professor of Constitutional Law, University of Montreal, as an individual: Thank you, Madam Chair and honourable senators. I am not here to offer my opinion in favour of or against Bill S-15. I am here solely to discuss constitutional law. My remarks will more or less focus on two things. I’ll begin with some general comments, and then I’ll get to the crux of the matter: Does Bill S-15 raise any constitutional concerns?
First, I’ll turn to the importance of constitutional law. As we know, we live in a democracy where our system of governance is based on the rule of law.
[English]
According to the principle to be ruled by law and not solely by the arbitrary rule of man, as the famous British theorist A. V. Dicey taught us.
[Translation]
Constitutional law is an integral part of Canada’s domestic law, which basically has two components: the Canadian Charter of Rights and Freedoms and the division of powers. Some would actually argue that constitutional law, in keeping with the principle of the rule of law, is the most important to uphold. Why? Because the Constitution Act, in its most basic form, is the supreme law of the country.
Why do I feel the need to start with that point? Because certain political actors seem to be suggesting that constitutional law doesn’t matter. I’m not referring to the provinces, some of which have misused the notwithstanding clause. Rather, I’m referring to the federal government, which, as we heard during the lead-up to the budget, said that citizens and people don’t care about constitutional law — the division of powers, to be precise. Not only is that statement very surprising, but it is also troubling given the importance of the fundamental principle that is the rule of law.
My second, shorter, general comment is that this concerns you, senators, because you are familiar with constitutional issues, especially when it comes to the division of powers to protect the interests of the provinces. This is of particular interest to the Senate of Canada. It must be noted that this is very clearly indicated in your mandate, as reiterated by the Supreme Court of Canada in its Reference re Senate Reform, 2014, at paragraph 15. The Senate is a Chamber of “sober second thought,” but it must also represent and protect the regions, the provinces, including their jurisdictions, pursuant to section 92 of the Constitution Act, 1867.
In short, regarding Bill S-15, the important thing is to know whether, in accordance with the division of powers, the federal government can, constitutionally speaking, adopt these new measures. This is something that must be taken seriously; we can’t “not care.” It is a critical issue. Second, it is the Senate’s responsibility to be the watchdog of federalism, if I may put it that way. Of course, the Supreme Court could later be tasked with reviewing the constitutionality of Bill S-15, but your role in the Senate is to examine this issue before that point, if I can put it that way.
To get to the heart of the matter in the little time I have left, I’m going to talk about Bill S-15 and the division of powers under sections 91 and 92 of the Constitution Act, 1867. I will be very brief because, first, I am relying mainly on the brief and presentation of my colleague from the University of Toronto, Professor Angela Fernandez, who appeared before the committee on April 18. She very capably explained the analysis grid on the division of powers, the qualification and classification stages in deciding on the pith and substance. She also underlined the importance of constitutional doctrines, particularly that of the double aspect. She even had a diagram to help you visualize the process of analyzing these issues of shared jurisdiction. It was very educational — possibly much more than I can be.
As for me, I will make just one comment, on the federal government’s jurisdiction under criminal law. First, a reminder that Bill S-15 deals with two heads of power, namely, subsection 91(2) of the Constitution Act, 1867, in matters of international and interprovincial trade. Essentially, this concerns the federal government and relates to the amendment of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act. I completely agree with what my colleague, Professor Fernandez, had to say on the subject. But I don’t fully agree with her on the second head of power.
[English]
The Deputy Chair: Professor Beaulac, you’re a bit over your time here. Could you please wrap up in 15 seconds? Perhaps we can ask you some questions about your remaining comments.
[Translation]
Mr. Beaulac: In 15 seconds, I will simply say that the problem has to do with subsection 91(27) in criminal law. If you are interested, during the question period, I will have quotes from the landmark ruling on the constitutional aspect of Bill S-15.
Thank you for your attention.
The Deputy Chair: Thank you very much.
[English]
Jodi Lazare, Associate Professor, Schulich School of Law, Dalhousie University, as an individual: It’s a privilege to be here.
In my role as associate professor at the Schulich School of Law at Dalhousie, I have taught the mandatory constitutional law course since 2014, and I also teach a seminar on animal law. I will use my brief time here to try to elaborate on some of the constitutional questions that the committee has already raised — I’ve been watching the hearings — and I will do this in four parts.
Starting first with the issue of morality and the scope of the criminal law, the committee has raised questions about whether simply targeting a moral issue is enough to ground the criminal law. We heard a quote in an earlier meeting from the Supreme Court’s Reference re Genetic Non-Discrimination Act about the kind of moral threat that an activity must pose in order to be subject to the criminal law. I want to pick up on the idea that conduct validly prohibited by criminal law must do more than simply target a moral precept. We heard that quote. That is a paraphrase from Justice Karakatsanis, who was quoting then Chief Justice McLachlin in the earlier Reference re Assisted Human Reproduction Act, specifically on the issue of societal consensus, or lack of, around activities subject to criminal law. In the earlier case, Chief Justice McLachlin acknowledged that different people can and do hold different views on moral issues. She went on to say:
However, under federalism analysis, the focus is on the importance of the moral issue, not whether there is societal consensus on how it should be resolved. Parliament need only have a reasonable basis to expect that its legislation will address a moral concern of fundamental importance. . . .
She then said that what we need to ground the criminal law is “a consensus in society that the regulated activity engages a moral concern . . . ” So what is not needed is a consensus in this case on the morality of captivity per se. What matters here is simply that there is a moral issue at stake to be addressed.
Second, it’s uncontroversial that criminal law is also about protecting public health and safety. Adding so-called — this is, again, in reference to a question — less charismatic species to the bill, animals for whom captivity might raise less of a moral issue, whether now or in the future, would not undermine or threaten the constitutionality of the bill as valid criminal law. We may not care about the well-being of pythons, for example, but we can all agree, I think, that the escape of a deadly snake is a question of public health and safety. Accordingly, the addition of less “like us” animals would also be constitutionally compliant from a public safety perspective.
Third, and related to that, is the concern about the ability to add other species by order-in-council or regulation through a so-called Noah Clause. Here the Supreme Court has been quite clear that criminal law can have this kind of regulatory dimension. There are a number of federal laws outside of the code that do this kind of thing, including the Controlled Drugs and Substances Act, the Canada Environmental Protection Act and the Tobacco and Vaping Products Act, to name a few. These acts all allow for ministerial amendments to their respective schedules, provided, of course, the amendments promote the purpose of the legislation.
Fourth and last, picking up on an idea that was addressed in the speeches relating to this bill, is the absence of a relocation provision at the level of sentencing or penalty. There has been reference to an amendment whereby a judge could order an animal to be moved with costs. In my view, that would also not raise constitutional problems because it would be ancillary to the legislation. The test for the validity of discrete provisions of federal laws that may, on their own, affect provincial matters is whether the provision in question is rationally and functionally connected to the federal law. It must, to quote the Supreme Court, “further the purposes of the legislative scheme.” A relocation provision, which is effectively like a seizure and disposition provision, would further the purpose of a scheme aimed at protecting not only animals in captivity but also the people who might interact with them. This would not be a novel measure. The Health of Animals Act, for example, which is grounded in public safety, allows for the seizure and disposition of animals and for compensation from the owner of the thing or animal seized, for the cost associated with the seizure.
I see that is my time. I’ll leave it at that. I’m happy to answer questions. Thank you.
The Deputy Chair: Thank you both for your remarks.
We will now proceed to questions from senators. We will start with the sponsor of the bill, Senator Klyne.
Senator Klyne: Welcome to our panel of witnesses here, the experts on this. Thank you very much for your attendance and your opening remarks.
My first question is for Professor Beaulac. The brief from Professor Lazare and her colleagues, which we have received, states:
The Supreme Court has repeatedly emphasized that the criminal law power is the most expansive and flexible of Parliament’s legislative powers. In this case, no expansive definition of criminal law is required to support the validity of this law. The Act’s matter — prohibiting and penalizing unethical and dangerous conduct — falls squarely within the traditional scope of the federal criminal law power.
At our second reading debate on Bill S-15, our colleague Senator Dalphond concurred with this. He said:
. . . in my view, this bill is a straightforward application of the federal criminal power regarding the prevention of animal cruelty and the protection of public safety, and to a lesser extent, the federal trade and commerce power over international trade.
Can you please comment?
Mr. Beaulac: Thank you for your question.
[Translation]
I’d just like to mention that it’s pronounced “Beaulac.”
I’ll answer in French. My remarks were prepared and certain passages will allow me to complete the information on the decision in principle regarding this matter; those are also in French. My colleague from Dalhousie University mentioned them as well. Obviously, I’m referring to the Supreme Court of Canada’s 2020 Reference re the Genetic Non-Discrimination Act. Admittedly, there’s a great deal of flexibility. For reference, in the landmark judgment in question, the Supreme Court, at paragraphs 77 to 79 in particular, refers to that deferential posture one should adopt when seeking to determine whether a legislative measure falls within federal criminal jurisdiction, i.e., section 91(27).
I’ll answer your question as follows. One should always be cautious when quoting — as I am about to myself — excerpts from a Supreme Court decision that can run to 70, 80 or 90 pages. The reasons given by the highest court in the land must be understood in their full context. When we refer in particular to paragraphs 72 and 73 of the Supreme Court’s 2020 decision, we recall, as did my colleague from Dalhousie, that it’s a two-stage text. One must ask, first, whether the law is intended to address and treat an identifiable evil, and second, whether the law serves a public purpose.
In its way of understanding just what constitutes a public purpose, the court specifies in the next paragraph, paragraph 73, that the public interest may concern safety, health — my colleague from Dalhousie provided an excellent example of snakes that could escape — and public morality. However, at the end of paragraph 73 of its 2020 decision, the court explains that merely invoking the existence of a public morality question will not suffice. Essentially, one must determine whether the conduct targeted by the legislation threatens the morality rule.
Essentially, Senator, to answer your question, one must ask whether the broad outlines of criminalization, captivity, breeding, and putting great apes and elephants on show threaten animal cruelty rules. Merely invoking possible animal cruelty, according to the test developed by the Supreme Court, is not enough. The link must be established. In my humble opinion, this has not yet been clearly done. With all due respect for the opinion of those who believe otherwise, notably Senator and former Justice Dalphond, I do not believe that the link between public morality and the legislative measures provided for in the Criminal Code in Bill S-15 has been convincingly demonstrated.
[English]
Senator Klyne: Thank you, Professor Beaulac.
Professor Lazare, would you care to comment on the response?
Ms. Lazare: I’m not an expert in animal health or captivity or animal science. I have watched the committee hearings closely. We heard from biologists, neurologists, people like Dr. Lori Marino and the folks at Fauna. Ultimately, what it comes down to is a judgment call. Morality is not something that can be clearly defined. If enough people in a room think that captivity is immoral according to the science that we’ve heard very clearly, then I think certainly there’s a link between public morality and the provisions of the law.
Senator Klyne: Thank you.
The Deputy Chair: Senator Plett, the critic of this bill.
Senator Plett: Professor Beaulac, the constitutionality of this bill completely hangs on whether or not keeping elephants and great apes in captivity meets the threshold of animal cruelty under the Criminal Code. Yet, Bill S-15 assumes that the threshold of cruelty is met simply by holding an elephant or great ape in captivity, regardless of their conditions, habitat or quality of care. This, to me at least, seems like an example of federal overreach.
The Library of Parliament has sent us a note, and it says:
If anyone acts in a cruel manner with regard to an animal, it is a question of the degree of severity as to which legal regime will apply. The Criminal Code applies if the actions are considered to be “cruel” in the legal sense. If, however, the actions serve to put the animal in distress but do not meet the threshold of animal cruelty under the Criminal Code, then the provincial legislation can be applied.
Bill S-15 suggests that something meets the Criminal Code level of cruelty when it has never been met in the lower provincial animal welfare threshold. Professor, do you have any concerns that the federal government is on flimsy, shaky constitutional ground here?
Mr. Beaulac: Thank you for the question, senator — a direct question, so a direct answer. I think it is really at the margin in the sense that there is sort of a reasoning gap in the way that Bill S-15 is presented. As you highlighted, the crux of the matter is whether or not it meets the hurdle — the actual activity — that is targeted by the criminalization in Bill S-15 and whether the hurdle of animal cruelty is met. In this case, when one looks to the specifics — I agree with my colleague from Dalhousie that it all boils down to animal cruelty — one needs to make the link between what is being criminalized via Bill S-15 and the actual hurdle of animal cruelty.
To put it differently, if it is not animal cruelty, it is not federal and it is not connected to the requirement of public morality. If the hurdle is animal cruelty, we need to make darn sure that captivity, preventing reproduction and putting those two animals on display is, by definition, animal cruelty. I believe that is what has not been demonstrated in the work around Bill S-15 so far.
Senator Plett: They contend that preventing reproduction might possibly be more cruel than not preventing it, and that’s what this bill seems to do.
Professor Lazare, during the debate on a previous bill — the cetacean bill — senators were warned by witnesses that, from a legal perspective, this was a very slippery slope. Professor Noonan testified that if one species can be added to the Criminal Code in this matter, then there is no limit to the species that can be added. Aside from whether or not you agree with the bill, professor — I take it you do somewhat agree with the bill — would you agree with the observation that this is a bit of a slippery slope and that if one species can be added, there is no limit to what could be added?
Ms. Lazare: I would not. I think that any addition to the bill would have to line up with the purpose of the law. I’m just trying to think of an animal that doesn’t pose a public safety risk or that we don’t think is immoral to keep in captivity, and I can’t. If it is a question of an animal like big cats, which would or could pose a public safety risk, or Crocodilia and amphibians, then that would be okay. I think there would be safeguards in that the minister would be limited in what they could add to the bill insofar as the animal in question must align with the purposes of the bill and must pose a threat to public health and safety. There must be some consensus that it is a moral issue and that kind of thing.
Senator Plett: We are basically talking here about elephants and great apes, and there has also been a fair bit of conversation on adding big cats. However, the question still remains. We have polar bears and grizzly bears in captivity. I would suggest they would be more dangerous than a big cat. There is a list of other animals that could be added to this. Would that not apply to all of those animals? I’m not a proponent of expanding the list. Senator Klyne’s previous Bill S-241 had 800 species on it. It is not that I’m an advocate of that, but wouldn’t this move right into that?
Ms. Lazare: I know a clause would enable legislators to look at whether an individual species should not be added to the list. I don’t think it is opening the floodgates to any animal under the sun. For the animal in question to be added to the list, its captivity would have to be a subject of moral debate, and it would have to pose a danger to health and safety.
[Translation]
Senator Dalphond: I’d like to thank our participants. It’s always interesting when specialists come to work with us.
[English]
My question will be for you, Professor Lazare. In the opinion that you co-signed with five other professors of law, am I right to conclude that you see no constitutional problem with regard to the proper exercise of the criminal law power of the federal Parliament?
Ms. Lazare: Yes.
Senator Dalphond: Can you elaborate a bit? It said that just showing animals is maybe not enough, but the purpose of this bill is not showing animals. The purpose of this bill is to prevent captivity. The essence of the bill is that captivity amounts to a form of cruelty toward animals. Can you elaborate on that, please?
Ms. Lazare: Provided captivity does amount to cruelty — and I think the evidence we heard suggests that it does. I will just add a caveat that I know there is a distinction between captivity for entertainment and profit and captivity in a sanctuary, and what we’re aiming for here is the least worst option. So assuming that captivity for profit and entertainment purposes is immoral, and I respectfully think the case been made that it certainly raises moral questions, then yes, I think the bill is constitutionally compliant.
The criminal law is extremely broad. I’m not going to get into Supreme Court decisions and the history of the interpretation of 91(27), but a lot of things have been criminalized that I think people would generally be surprised at because they don’t necessarily think of an activity in the same way as an assault, drug possession or things like that. The criminal law is very broad.
As far as morality is concerned, I think the bill is all right, and I certainly think it is all right with respect to health and safety. Therefore, yes, I think the bill, as is, is constitutionally compliant.
Senator Dalphond: Did the six of you discuss the brief before you signed it? Did the six of you work together and all have that view?
Ms. Lazare: I read the brief, I made some comments and I signed.
[Translation]
Senator Dalphond: Mr. Beaulac, did you have anything to add?
Mr. Beaulac: At the very least, I would add that generally, in the academic community — perhaps unlike the context to which you are accustomed, Senator Dalphond — the judicial context is not a matter of numbers, of quantity, of constitutionalism on one side or the other. I have raised serious doubts about the constitutionality of Bill S-15 in terms of criminal jurisdiction. To my mind, I reiterate, this should be of particular interest to the Senate, because there is a potential constitutionality review upstream, and we shouldn’t wait for it to be overturned by a court downstream.
Senator Dalphond: Does the principle hold that animal cruelty is a form of legal basis for criminalization? For example, it prohibits keeping whales in captivity.
Mr. Beaulac: Yes, since 2019 with Bill S-203, we have included a new provision that prohibits the captivity of certain cetaceans, whales and dolphins. To the best of my knowledge, however, it has never been validated in a constitutional court case. . .. The validity of these provisions has never been upheld. In my humble opinion — although I have studied them less than the current provisions of Bill S-15 — both categories, whales, cetaceans and great apes and elephants, could probably be put in the same Criminal Code of Canada provision for which there is a grey area or an area of uncertainty as to its constitutionality.
Senator Dalphond: That hasn’t been contested by parties who were being prosecuted under those provisions?
Mr. Beaulac: Not yet, as far as I know.
Senator Dalphond: Thank you.
[English]
Senator Prosper: Thank you to the witnesses for coming before us today. This is a fascinating discussion. Not often do I get to delve into constitutional law principles and interpretation.
I understand that, constitutionally, as you mentioned, Professor Lazare, the federal criminal law power is quite broad, but I also understand that, as it relates to constitutional jurisdiction, there is an inroad for the provinces as well. Under property and civil rights, they possess a certain level of jurisdiction over animals. One can only think of the possibility of a conflict between federal and provincial laws here on a constitutional basis. I’m looking to get the opinion of both Professor Beaulac and Professor Lazare on this. Does this current bill take appropriate steps to ensure that a potential conflict that may exist constitutionally — that is, comparing this federal law with encroachments within the provincial constitutional realm — does this take that into account within the purposes of this bill, in your opinions?
Ms. Lazare: A lot of areas of federal jurisdiction overlap with provincial jurisdiction. Dr. Fernandez talked about the double aspect doctrine and the idea that so many things fall under both. I will take a simple one like driving. Driving intoxicated is a crime under the Criminal Code, and it is also an offence under every provincial road safety law.
The constitutional law around this is that in case of a conflict, the federal law takes precedence under the federal paramountcy doctrine. What is more unique here is kind of the impossibility of that happening because if it is federally prohibited to keep these animals in captivity, then the provinces would have to respect that in the same way that the federal Parliament has to respect provincial laws in their areas of jurisdiction. While I think conflicts would be highly unlikely, we have the tools in our constitutional toolbox to solve them.
[Translation]
Mr. Beaulac: I would add, when invoking the dual aspect doctrine. . . . Nothing has been said yet, because what you mentioned, Senator, is the possibility of conflict between federal and provincial legislation. Yes, we have the tools under constitutional law, but I don’t think it’s quite that clear. Any analysis that could invoke the constitutional doctrines of interjurisdictional jurisdiction and federal predominance would conclude that these two doctrines come after an initial analysis to determine what the true character is and whether it can be attached to section 91(27) in criminal law.
There is a significant likelihood that, following the passage of Bill S-15, there will be a dual regime, provincial and federal, and that could lead to litigation. I hope, for the purposes of Canadian constitutional law, that there will be a constitutionality review of Bills S-15 and S-203, which was passed in 2019.
[English]
The first step in this process is to know if, in pith and substance, we’re dealing with something that can be hooked on section 91(27). Only if the answer is affirmative will there be an opportunity to discuss the constitutional doctrine.
[Translation]
Keep in mind that the Supreme Court’s current trend is to favour cooperative federalism. In other words, to find a way to reconcile both federal and provincial legislative participation.
[English]
The Deputy Chair: Professor Beaulac, in your opening remarks, you said that we are the watchdogs of federalism since we are the Standing Senate Committee on Legal and Constitutional Affairs. Some government officials and witnesses, like Professor Angela Fernandez and Dr. Lori Marino, have not provided a clear and precise definition of what constitutes “captivity” for the purposes of this act. This lack of a clear definition raises concerns, particularly in terms of legal consequences in the application of Bill S-15. By basing itself on the premise that any form of captivity equates to cruelty without a clear delineation of what that captivity entails, are you not concerned that this automatic link between captivity and cruelty could make that provision particularly vulnerable during a constitutional challenge, given that it might be perceived as too vague or arbitrary?
Mr. Beaulac: The short answer, Madam Chair, is yes, absolutely. The onus, one would think, is on the sponsor of the bill to provide sufficient details in order to make the case that it is a bill that can be linked to federal jurisdiction in criminal law, section 91(27). When the time comes — that is, if it comes, and I truly hope it comes — the law courts will decide and review the constitutionality of this bill.
You also raised the idea that such a broad, vague definition would not make it clear that captivity is necessarily linked to animal cruelty. It also creates a high risk of a slippery slope, starting in 2019 with the dolphins and whales, and now with the great apes and the elephants. What is next?
[Translation]
In French, we talk about the baby steps strategy.
[English]
Maybe we’ll be in a situation in five or ten years’ time where we will have a list of 25 species and will say it has never been problematic, but we have progressively expanded and encroached upon provincial jurisdiction on those matters.
Now that we have a second opportunity to deal with those issues, including the constitutionality of those bills, it is perhaps time for the Senate to act in its role of guard dogs with regard to the constitutionality of this bill.
The Deputy Chair: Thank you. I appreciate that.
[Translation]
Senator Carignan: You’ve touched on the issue I wanted to raise, Madam Deputy Chair, but I’m still going to delve deeper into the subject. The fact is that there’s no definition of captivity, for an elephant at the African Lion Safari, for example, that roams over 200 acres compared to another one living in a 15 feet by 15 feet enclosure or box. How can we apply this notion of captivity without a definition and say that even with 200 acres, these animals are in captivity? Does that mean it’s unconstitutional?
Mr. Beaulac, isn’t there a serious danger that the bill will be attacked due to its vagueness on the notion of captivity? Could we ensure that this section cannot be applied in practice?
Mr. Beaulac: Thank you for your question. It’s along the same lines as what I said in response to the previous question. Of course, the more the legislative language. . . . In constitutional theory, this would be called open-textured language. Does that bring back memories of constitutional law? The more you use this type of language in a bill whose constitutionality is uncertain, the more you increase the risks of opening yourself up to a challenge. There is no definition to circumscribe what is meant in Bill S-15 by the term “captivity”. I’d go even further. What is meant by “reasonable measures to prevent the natural breeding” of the animals? Are males and females kept apart? Are they kept together, but only when they’re not in heat? These are some of the uncertainties in the basic components of the new set of norms.
The same goes for the third component, using them for entertainment. What does “used . . . for entertainment in a performance” mean? Does a zoo use animals for entertainment? Would it include using them in a circus performance? These are grey areas, which, in their present form, cast doubt on whether the link to federal jurisdiction in this area can confidently be made, if, down the road, there is a judicial review of the new law’s constitutionality. It is highly doubtful that the link can be made through criminal law.
Senator Carignan: Let me add something. I won’t use the word “wacko,” but we all enjoy arguments that verge on the absurd. If we take that tack, we could argue that the federal jurisdiction is based on something that is immoral and threatening. The behaviour needs to threaten the precepts of morality. Taking the argument a step further, I could ask whether it wouldn’t be immoral to leave an animal free and not keep it in captivity in Canada.
Mr. Beaulac: Perhaps. Immorality is not only an open-textured concept, but also one with a high level of uncertainty. It’s vague. Non-captivity, of course, for certain animal species, speaks to other concepts at the heart of criminal law analysis, namely health and safety. We would have to go species by species, but we still need to be serious about how we apply the test. The test is not only about animal cruelty, but also about making the link. If you don’t, then you don’t discharge the burden of proving the constitutionality of the bill. Now, the link between captivity, preventing breeding and prohibiting animal performances, on the one hand, and animal cruelty, on the other, in my humble opinion, has not been made.
Senator Carignan: Thank you.
[English]
Senator Cotter: Thank you to both of you. This is a very important and almost fundamental question for the role of the Senate and senators.
My question will be for you, Professor Beaulac, based on your opening remarks, supplemented by Senator Plett’s line of inquiry. You identified significant ranges of intrusion by the federal government into provincial jurisdiction. From my perspective, most of that swirls around the use of the spending power. This is a kind of cleaner question, I think. Is this legitimate criminal law or not?
In a way, the question for us is, what standard ought we apply before the Senate and senators block legislation based on their judgment that it is unconstitutional? This is separate from the policy question of the wisdom of the bill or lack of wisdom of the bill, or illegitimacy of it in a larger way.
The language that you used is that this question of constitutionality regarding section 92(27) — this is the translation, so I want to be respectful in case your language was slightly different. You have said phrases such as “at the margin” and “possible constitutional issue” and “there is some doubt about its constitutionality.” You raised the question that the previous legislation has never been validated by the courts, which actually means it has never been challenged, and, as a consequence, it actually is valid. That’s a side note, as an observation.
For me, these questions call into question and into doubt the legitimacy of a Senate saying this bill is at the margins, so, therefore, we will block it on constitutional grounds. That strikes me as something of an overreach on our part. I wanted to invite you to comment on the depth of your concern and the degree to which that triggers a legitimate intervention by senators.
Mr. Beaulac: Thank you for your question.
Of course, you recall a basic rule of interpretation, and it is the presumption of constitutionality. If Bill S-203 was adopted, it is the law until it is successfully challenged. The same thing will apply to Bill S-15. In the meantime, the more grey the zone of validity, the less respectful the process is with regard to the rule of law. I’ll say it again to make sure that my point is clear. It’s not a blatant breach of the rule of law. The system works such that until successfully challenged, it is valid.
In terms of your role at the Senate, that’s when I think it gets into action. The greyer it is, the more likely, ultimately, that it will be struck down as being in breach of the division of powers and the more you have a legitimate case as the watchdog of the rule of law, but specifically with regard to the division of power, that you should exercise.
I am prudent in my remarks, which I believe are well translated, that there are strong doubts, that it is at the margin and that it needs to be tested. I’ve quoted from the case law dealing with such issues. I will say it again: I believe that there is a reasoning gap. It is one thing to invoke that the federal jurisdiction extends to animal cruelty, but it is another — and that is where I believe it has failed to accomplish it — to make the link with what is aimed towards terms of captivity, reproduction and prohibition of putting those animals in a show. This link between the prohibited activity and animal cruelty, I believe, has not been made. That makes it vulnerable down the road to a successful challenge in terms of constitutional law.
Senator Cotter: Thank you. I have no other questions.
The Deputy Chair: I actually find it interesting. Generally, for government legislation, the government provides a charter statement. Here, we could probably use just a general constitutional statement from the Department of Justice on this bill.
Senator Clement: It’s tough to go after Senator Cotter on constitutional issues. Constitutional law classes are far from me, but I shout out to the Library of Parliament. They’ve provided some updates to me and my staff, which were helpful.
I want to engage with Professor Lazare on what you just heard Professor Beaulac say. Could you comment on that? I also want to come back to the question posed by Madam Chair and Senator Carignan about definitions. I remember Professor Fernandez saying to us that the lack of definitions is not an issue. It’s not constitutionally required to have the definitions referred to by the two senators. I wonder if you could comment on that and maybe comment on what Professor Beaulac said in response to Senator Cotter about the vulnerability.
Ms. Lazare: I’ll start with the latter because it’s fresh. I agree with the idea that everything that comes out of Parliament benefits from a presumption of constitutionality. Of course, it’s up to an individual to challenge a law and for the court to decide whether that’s not the case.
I will highlight that charges have been laid under Bill S-203 and the cetacean captivity provision. They were not met with a constitutional challenge. If the law really was grey and I were advising a client charged under those provisions, I would suggest they challenge the constitutionality of the law, which they did not. I think that’s suggestive of constitutional validity.
I hesitate to say this, but I think this picks up on Senator Cotter’s comments on the role of the Senate. I have never heard the Senate referred to as a “guard dog” or “watchdog” of constitutional law. As someone who has taught constitutional law for almost 10 years now, the only time I’ve ever heard a term like that is in reference to the courts. The courts are the guardians of the Constitution. It’s not for me to tell the senators how to do their jobs, but I would agree that not passing a law because it’s at the boundaries — I don’t think this is — might be an overreach. I think the Senate is a chamber of sober second thought. I understand it is a bit different in this case with the order of things, but that’s how I understand the role of the Senate versus the role of the courts.
With regard to a lack of definition, one could argue that it’s difficult to define unnecessary suffering under the Criminal Code, which is the wording of section 445.1, the animal cruelty provision. In that case, if there were a disagreement about whether an animal suffered in the context of a prosecution, the court would hear from a witness — an expert, a veterinarian, an animal behaviourist, what have you — who would clarify, and then it would be up to the judge to weigh that evidence and decide who to believe, which is what judges are in the business of doing. Again, I’m not an encyclopedia — I haven’t read every single case interpreting section 445.1 — but my understanding, and I’ve taught this in my animal law course, is that debates over the interpretation or application of section 445.1 typically hang on the willfulness question, the mens rea requirement and the more technical aspects of the law and not whether we’re actually in the presence of cruelty.
Senator Clement: Thank you.
Senator Dasko: Professor Lazare, I agree with your comments. I don’t think we are the guardians of constitutional law, but I think we consider it. It’s something we take into account and try to understand in the bills on which we deliberate.
Returning to your first principles about what is considered when it comes to the criminal law, you said that your first principle is that there must be a moral threat for it to be considered in the criminal law. Then you went on to say that it’s really the importance of moral issues and not whether there’s a societal consensus on the moral issue. How is a moral issue determined, then, if it’s not societal consensus? I don’t like the word “consensus” because we’re really talking about a large majority or something like that. How are moral issues then determined if not through societal consensus or majority? Is such a test ever actually applied, or is criminal law just created and as we go along it’s an organic development and maybe this test is never actually used? If it is, I’d like to know how it’s used.
Ms. Lazare: Thank you.
I find myself listening to the questions and the discussions here and thinking that probably a moral philosopher would be a great witness, which I am not. To my knowledge, the Supreme Court has not provided a clear definition as to what morality means. I don’t know that there is one.
Senator Dasko: Does the court use that term?
Ms. Lazare: Morality? Yes.
Senator Dasko: Yes. Okay, thank you.
Ms. Lazare: Again, to bring it back to consensus, majority or what have you, I think that as long as there is some kind of social movement — the criminal law, in addition to protecting morality, public health and public safety, in general has an expressive function. In a case like this, it is expressing how maybe not all but a lot of Canadians and others feel about keeping certain types of animals in captivity. I think the law evolves in the same way as our public sentiment about ethical and moral questions, whatever that means. I don’t know if that’s a helpful answer, but yes, the court does talk about morality. I don’t think it has defined morality. It talks about our social fabric and that kind of thing in terms of morality.
Senator Dasko: There’s no actual test?
Ms. Lazare: I don’t think there’s a test as to what constitutes a moral issue, no.
Senator Dasko: It’s not as if it’s known, either?
Ms. Lazare: No. I don’t think so.
Senator Dasko: It’s not like it’s evident or obvious. Some things might be obvious. Okay, I think you’ve answered my question. Thank you.
Ms. Lazare: Okay.
The Deputy Chair: We have just a few minutes for a second round, so I will keep each question and answer to two minutes.
Senator Klyne: Professor Beaulac, I have a question for you. It’s a quick one. In the interest of time, I’d appreciate a quick answer. Am I correct to take it that you think keeping whales at Marineland is a grey area?
Mr. Beaulac: Well, the activity is not in a grey area. Whether or not it’s constitutional under section 91(27) is what’s uncertain. Until we have a decision by a court on a challenge of this validity, then we are in a grey area, yes. It’s not the activity; it’s the constitutional validity I’m interested in.
Senator Klyne: Public safety is a second and complete justification for using criminal power. Do you agree that elephants, great apes and big cats can be dangerous, as evidenced by the record number of attacks in North America?
Mr. Beaulac: I don’t know. Is that the language used in Bill S-15? I thought that it was the prohibition of captivity that was at issue.
Senator Klyne: Public safety is also an issue.
Mr. Beaulac: All right. As far as my analysis went, it was focusing on public morality and whether keeping them in captivity and preventing reproduction or showing off those animals was actually falling under section 91(27). Anything else is beyond the scope of what I analyzed.
Senator Klyne: Public safety is an element. Thanks for the answer.
Senator Plett: Thank you, Professor Beaulac, for being here. Clearly, you aren’t here to make determinations on what is safe and what isn’t; you’re here to talk about the constitutionality and the legality of a bill.
I have a question for you regarding the constitutionality, because that has really been the focus here and I thank Senator Cotter for raising it. In your opinion, Professor Beaulac, because there are clearly concerns about whether the bill is constitutional, should the committee possibly consider amending the legislation to compel or to ask the Governor-in-Council to request a Supreme Court reference on the question of constitutionality?
Mr. Beaulac: Thank you for your question. It will allow me to clarify something that was maybe lost in translation.
I never suggested that the Senate was a guard dog with regard to constitutional law. It is a guard dog with regard to the interests. It’s stated clearly in paragraph 15 in the reference case on the Senate by the Supreme Court of Canada in 2014, if you want the reference, that it is not only a chamber of sober second thought but also a chamber interested in protecting the interests of regions and provinces that gave up important legislative authority to the federal government at the time of Confederation. That’s what the Senate is interested in.
This bill, which raises grey areas of constitutionality, therefore falls squarely, in my opinion, in your mandate and your role. Whether or not this role can be conducted upstream or whether you should take the opportunity to send a question to the Supreme Court of Canada to get extra light shed on the issue is for you to decide. My humble invitation to the Senate is not to shy away from its role to verify the constitutional validity of the bill upstream and not wait down the road. It could take five to ten years before we have a final decision by a court of law. Thank you again for your question.
Senator Plett: Which would possibly fall more into our jurisdiction. As much as I oppose this bill, I tend to agree with Senator Cotter that the Senate really should not kill government legislation. They should amend it, if they see fit. This might be the opportunity. I thank you for your answers, Professor Beaulac. Clearly, you’ve indicated that, at the very least, there is grey area as to the validity of the constitutionality of it, so thank you very much.
Mr. Beaulac: Thank you.
The Deputy Chair: Thank you very much to the panellists.
Perhaps I didn’t do a very good job of skimming, but I just tried skimming through Bill S-15 quickly. Senator Klyne, I didn’t see the words “public safety” noted anywhere in the bill. Maybe you could point that out to me afterwards.
Thank you very much to our witnesses for being here, for your remarks today and for taking questions from us.
For our second panel, please join me in welcoming, from the Granby Zoo, Paul Gosselin, President and Chief Executive Officer; and Patrick Paré, Director, Conservation and Research, by video conference; from the Wilder Institute/Calgary Zoo, Clément Lanthier, President and Chief Executive Officer; Jamie Dorgan, Chief Operating Officer, by video conference; Dr. Doug Whiteside, Head Veterinarian and Senior Manager, Animal Health, by video conference; and from the Toronto Zoo, Dolf DeJong, Chief Executive Officer; Gabriela Mastromonaco, Senior Director, Wildlife Science; Nic Masters, Director, Wildlife Health, by video conference; Maria Franke, Director, Wildlife Conservation and Welfare Science, by video conference; and Jennifer Tracey, Senior Director, Strategic Communications and Guest Experience. Welcome and thank you for joining us. The floor is yours for five minutes each when you are ready. We will start with the presentation from Granby Zoo for five minutes please.
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Paul Gosselin, President and Chief Executive Officer, Zoo de Granby: Thank you, Madam Chair.
Honourable senators, thank you for this opportunity to share our views and constructive comments on Bill S-15. My name is Paul Gosselin, and I’m the President and CEO of the Granby Zoological Society. I’ve been leading this team of passionate and dedicated individuals towards our mission of preserving the animal world for the past 11 years. I have previously served as the President of Canada’s Accredited Zoos and Aquariums, or CAZA. Currently, I am a member of the Ethics and Membership Committee of the World Association of Zoos and Aquariums, or WAZA.
Today, I am accompanied by Mr. Patrick Paré, Director of Conservation and Research. He is an affiliated researcher at Concordia University and has served as the President of the Order of Biologists of Quebec. He sits on joint committees that bring together conservation organizations in Quebec.
Granby Zoo is a non-profit organization with a 70-year history. We adhere to world-class animal care standards, being accredited by CAZA and being a member of WAZA. Membership in these associations not only ensures compliance with high-level animal care standards, but also allows us to exchange with experts from around the world on best practices that enable us to provide the necessary care to ensure the well-being of the animals under our care.
Under the auspices of the Association of Zoos and Aquariums, or AZA, Granby Zoo participates in 32 species survival plans, and we have close to 1,500 individuals under our care. A quarter of these 150 or so species have precarious or threatened status according to the International Union for Conservation of Nature, or IUCN, and the lists of federal and provincial governments.
Granby Zoo now defines itself as a full-fledged wildlife conservation organization. In 2023, we invested over $625,000 toward in-situ conservation for the preservation of animal species in their natural habitats. We are actively involved in more than a dozen conservation programs for threatened species in Quebec, including two turtle species — the spiny softshell turtle and the wood turtle — and the bat group, for which we conduct releases into natural habitats.
All this work is carried out in collaboration with a multitude of organizations, including the Ministère de l’Environnement, de la Lutte contre les changements climatiques, de la Faune et des Parcs, Environment and Climate Change Canada, and recognized conservation organizations such as the Nature Conservancy of Canada and the Quebec Wildlife Foundation. Furthermore, we are involved internationally, contributing to over seven conservation programs for threatened species in their natural habitats.
In partnership with Concordia University, we directly lead scientific research projects for doctorates and master’s degrees. We also conduct conservation projects aimed at protecting elephants and gorillas in Campo Ma’an National Park, in Cameroon, and their harmonious cohabitation with Indigenous communities and park visitors. We also work with the University of Sherbrooke on graduate study projects in Latin America and the Caribbean on jaguars and marine turtles.
Additionally, we have collaborated on two major studies conducted by the AZA on elephants and rhinoceroses, aimed at maximizing their physical and behavioural well-being, and the care provided to them. We have also conducted a study demonstrating the impact of our educational mission on the awareness of our visitors before and after their visit to Granby Zoo. Although visitors primarily come to experience a unique closeness with exotic animals, the study has shown that many of them leave with a better understanding of and increased sensitivity to the plight of threatened wildlife and with an intention to take concrete action to preserve biodiversity.
I enumerate these points because we are more convinced than ever that accredited zoological organizations in Canada, such as ours, play an important role in education and awareness among the population, and that we have a direct impact on biodiversity conservation. We rely on the expertise of veterinarians, animal care technicians and biologists to play a critical role in maintaining genetics, behaviours, medical science, reintroduction into nature, research and education.
The loss of habitats and therefore animal species is accelerating at an alarming rate. All conservation organizations, including accredited zoos, as well as government authorities, can collaborate hand in hand to meet the objectives adopted at the historic COP-15 agreement in Montreal to stop and reverse biodiversity loss as quickly as possible. We firmly believe that it is necessary to intervene to stop not only the illegal trade in animals but also the keeping of animals in inappropriate conditions to ensure their well-being.
Honourable senators, it is our responsibility to provide all species under human care with an environment in which they can thrive. It is scientifically incorrect to assert that animals in internationally accredited zoos are victims of cruelty simply because they are under human care or because of the perception that these species need more space. As Jane Goodall mentioned, some species of great primates are safer and better treated in our zoological institutions than in their natural habitats, surrounded by poachers and facing the accelerated loss of their natural habitat due to deforestation.
Bill S-15 proposes exceptions for the best interest of animal welfare, scientific research, or to recognize conservation efforts. Accredited zoos in Canada are actively involved in numerous conservation and scientific research programs that meet the objectives of this law. I am confident that you will recognize the significant impact and contribution that our organizations have on wildlife conservation and animal welfare.
In conclusion, I join my colleagues from Calgary Zoo and Toronto Zoo in thanking you for your commitment to making Bill S-15 a law that will have the desired impact on animal protection and biodiversity.
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The Deputy Chair: Excuse me. You are already a minute and 15 seconds over, so you will have to enunciate that with the questions later. Thank you.
Mr. Gosselin: Okay. Thank you.
Clément Lanthier, President and Chief Executive Officer, Wilder Institute/Calgary Zoo: Thank you for inviting us.
As a veterinarian, I have decades of firsthand experience with a variety of species, including great apes, elephants and large carnivores. During the last 17 years, I have been the President and CEO of the Wilder Institute/Calgary Zoo, leading an amazing and impactful conservation organization. I am the immediate past president of the World Association of Zoos and Aquariums and have also served on the steering committee of the International Union for Conservation of Nature Species Survival Commission.
Joining me is Jamie Dorgan, chief operating officer of the Wilder Institute, former director of animal care, health and welfare; and Dr. Doug Whiteside, who is a board-certified specialist in zoological medicine, head veterinarian and senior manager at the Wilder Institute/Calgary Zoo. Dr. Whiteside is also an associate professor at the University of Calgary School of Veterinary Medicine.
Wilder Institute/Calgary Zoo is leading conservation programs for 27 endangered species, such as burrowing owls, Vancouver Island marmots and whooping cranes. We also support community-based conservation programs in Ghana, Kenya and Nigeria, including one for the highly endangered Cross River gorilla.
I am telling you all of this because I have been listening to the hearings, and I have the impression that the focus has been on the relevance of zoos more than on animal welfare. I think this focus is unfortunate because, in reality, good zoos are more relevant than ever.
The Convention on Biological Diversity and its framework endorsed at COP 15 in Montreal are clear about the conservation significance and the importance of good zoos.
Furthermore, the IUCN, a United Nations observer, published last year a position statement defining the critical role played by good zoos. These roles include applied genetics, behaviour and veterinary science, wildlife reintroduction and translocation, research, education and community engagement, policy development, access to nature-based experiences and conservation funding.
In that context, it is our responsibility to provide to all species under human care an environment where they can thrive. No animal should be subject to cruelty. However, it is scientifically wrong to claim that animals are subject to cruelty simply because they are being held in captivity. Therefore, I am perplexed about the scope of the proposed legislation. Why only advocate for elephants and great apes? If I follow the argument of “intelligence,” why not include octopus and raven? What about dogs, other primates and pigs? I would be cautious not to focus on elephants and great apes simply because they are charismatic.
In Canada, roadside attractions are keeping thousands of animals in miserable and unsafe conditions. To positively impact animal welfare, we seriously need to add taxon to Bill S-15. Bill S-15 proposed exceptions for the best interest of the animal’s welfare, for scientific research or for conservation are reasonable. AZA accredited zoos already support a wide range of impactful conservation and research programs.
In closing, I respectfully encourage you to amend the preamble of Bill S-15 to remove the inappropriate and opinion-based reference to cruelty; amend S-15 to include at least large cats; and, finally, to include a clause that will permit the addition of other species with due consultation.
Thank you.
The Deputy Chair: Thank you very much.
Dolf DeJong, Chief Executive Officer, Toronto Zoo: Thank you for having us. We are pleased to be here with our exceptional Toronto Zoo team. We are a not-for-profit charitable organization supported by our community and our wildlife conservancy.
I have five minutes today, so I will go quickly. While my life doesn’t depend on it, for a few species, their future may. Our planet is losing somewhere between 2,000 and 100,000 species each year, and humans are the reason.
Since your Toronto Zoo opened in 1974, 60% of wild animal populations have declined. Since Bill S-241 was first introduced by Senator Murray Sinclair in late 2020, at least 8,000 extinctions have occurred. Let that sink in: 8,000 species lost. Things are not getting better for wildlife, so we need to get uncomfortable with many elements of this conversation, starting with the fact that the wild is not wild anymore, and humans are profoundly impacting virtually every animal on the planet.
With regard to great apes specifically, the challenges they face are very real, with wild populations declining at an alarming rate. We have a shared responsibility to ensure that great apes in human care are thriving while we are supporting their wild counterparts. Last year, 1.3 million guests to your Toronto Zoo joined us in that discussion. We need to make sure for these species that they don’t end up out of sight, out of mind and off our planet.
A critical part of this journey is our support with academic and zoological research partnerships. Our recent work with Species360 on great ape well-being in managed care is game changing. It is very clear what the data shows: significantly longer life spans of individuals in good accredited sites. It is a demonstration of our commitment to world-class care at modern zoos.
Since 2011, your Toronto Zoo has participated in 60 gorilla and orangutan studies with York, Toronto and Laurentian universities. Building our knowledge and understanding their diets, communications, diseases and aging is critical information to protect in situ and ex situ great ape populations.
Good accredited zoos that meet AZA standards ensure animals in our care are living long, healthy lives. In the case of gorillas and orangutans, they now know they are living longer lives than their wild counterparts.
These efforts are also having a positive impact on students and guests, including personal behaviour changes that help wild species. We know a visit to your Toronto Zoo increases the likelihood of an individual choosing sustainable palm oil products and recycling electronics, critical pressures their wild counterparts are facing. The connection is clear: Thriving animals here are helping out there.
To further support wild populations, our partners at the Toronto Zoo Wildlife Conservancy have committed over $500,000 to gorilla and orangutan conservation in their home ranges. We are not just talking about a better future for these species. We are taking meaningful steps to deliver on them here and out there.
Whether it is at our zoo or in the field, our wildlife care professionals ensure we not only meet welfare standards but exceed them. Don’t just take my word for it. Currently, your Toronto Zoo is accountable to the Canadian Council on Animal Care, the Canadian Food Inspection Agency, Environment Canada, three Government of Ontario ministries, our community Animal Care and Research Committee, while also being accredited by the Association of Zoos and Aquariums. I challenge you to find another animal care organization in Canada meeting all of these standards and regulations.
We recognize the significance and responsibility we carry in caring for these animals. That is why we joined a group of animal advocates asking you to do more with this proposed bill. We strongly believe in the value of oversight, accountability, progress and evolving science around animal well-being.
We support the government using this moment to establish world-class, paradigm-shifting legislation, but to do that, we are looking for two changes.
First, we do oppose the word “cruelty” in the preamble. We are committed to working with the committee and the government to amend this wording to ensure this bill truly reflects the minister’s mandate to “Introduce legislation to protect animals in captivity.”
The second change is to add exotic big cats in the act. Anything less is simply not dealing with real problems across our country. In less than 17 days, dozens of roadside zoos will open. The urgency is real.
I started my remarks saying how humans are the problem, and I will finish by highlighting that humans are also the solution. As a profession, we are committed to continuously evolving, and it is simple. When we know better, we do better. We have the same expectations here. You have an incredible opportunity to create groundbreaking legislation to protect elephants, great apes and exotic big cats in Canada. Please take advantage of it.
The Deputy Chair: Thanks very much to all of you for your opening remarks. We will now proceed to questions from senators, and we will start with the sponsor of Bill S-15, Senator Klyne.
Senator Klyne: Welcome to our witnesses and your colleagues. Thank you for being here and for your opening remarks.
I want to offer this question out to all the organizations’ representatives here.
Together with the Jane Goodall Institute of Canada and five Canadian animal welfare NGOs, your organizations have taken a world-leading position on the welfare of captive wildlife by supporting Bill S-15. Moreover, you have together called for the bill to be strengthened by adding non-native big cats and the “Noah Clause” so that the federal cabinet will be able to protect additional species such bears, monkeys and dangerous reptiles. We thank you for your leadership. Can you individually, in a brief statement, tell this committee your vision for the future in terms of Bill S-15 and the amendments you propose?
Dr. Lanthier: If we limit the scope of Bill S-15 to elephants and great apes, I don’t see that it will be very impactful in Canada. The majority of animals are already kept in conditions that are meeting the high standards. We need to take this opportunity to really have an impact on animal welfare, and this is with the big cats. That’s why we kept referring to at least adding big cats.
I want to repeat something that I’ve said. The exemptions provided in Bill S-15 are adequate. They are appropriate. If the holding institution is investing in conservation on top of providing the best care possible to the species they are keeping, I think that will have a positive impact of keeping those animals.
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Mr. Gosselin: In fact, Granby Zoo is currently making a strategic shift towards conservation. We’re putting more and more emphasis on conservation.
We are a non-profit organization. The money is invested in the conservation of animals in nature. It’s important to provide a framework for this aspect when we talk about the larger zoo family to ensure that we play our full role and that we can make a difference. We need to provide a framework for this aspect of captive keeping in law now. There are many cases today where we see inappropriate conditions for keeping animals in captivity. This is where the law needs to provide a framework, not just for gorillas, great primates and elephants, but in a much broader perspective.
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Mr. DeJong: We have watched this journey, and it is tough to think about all the animals across this country, particularly the exotic animals, that I’ll describe as falling through the legislative cracks, and no one is applying their voices to them. Their conditions over the course of the year are nowhere near the recognized standard. Therefore, the opportunity to amplify this discussion and start looking at what leadership in this country looks like around animal welfare and well-being is critical.
We are proud of our work on site, adding the director of wildlife care and the director of welfare and building animal health and mental health into their daily lives. We are also taking an additional step. We have something that is called the “Animal Lives with Purpose Plan” that maps out what each individual’s role is and how they are supporting conservation, research and education as outlined in the bill. We need to start asking those questions about animals in human care. Are they living a life with purpose? Are they building the knowledge to help their wild counterparts and wild communities, or are we still in the same old dated thinking? It’s time to change. We have an opportunity to do that. We have started to do that. A visit to your Toronto Zoo to see our new $11 million orangutan habitat will demonstrate it, rooted in best welfare standards and also with embedded research facilities there to expand our understanding. We are living our commitment to learning, knowing better and doing better.
The Deputy Chair: We will go now to Senator Plett, the critic of the bill.
Senator Plett: Thank you all for being here. As a youngster, I visited zoos with a great deal of interest and watched the animals in their enclosures in the large facilities they had, mostly at the Assiniboine Zoo. Who ever thought that at 70-plus, I would visit more zoos than most people visit in their lifetimes? I have been at all your facilities, and you have great world-class facilities. I’ve been to a few others that are equally impressive. I fully support and commend you for the facilities that you have.
I’m a little confused. First of all, let me tell you that I support the amendments that are being suggested about taking “cruelty” out of the preamble. However, on the one hand, you take exception to the bill making it criminal to keep the two species mentioned in human care under the terms of “cruelty,” but on the other hand, you want to add species. That’s where I’m confused. The bill has nothing to do with animal welfare standards but only the question of cruelty. That’s really the premise of the bill. If we remove “cruelty” from the bill, on what basis would we be adding more species? Are you in any way suggesting that we go back to Bill S-241, which had 800 species listed in it? The government has already rejected it. Square that circle for me. Let me tell you, I support the amendment entirely, but I am confused about why we would add species if we are actually almost killing the bill.
I have one more question, but I am limited for time. Any one of you can answer. I think you are all suggesting the same thing.
Mr. DeJong: Particularly with regard to great apes where we have them in our care — orangutans and lowland gorillas — we are suggesting that the bill as written is not going to gain them any additional protections. They will continue to receive that great care. We will continue to deliver that.
By adding exotic big cats, we are actually addressing a problem that we see — a problem that we have had to deal with directly. We have had to deploy our team to roadside and private ownership situations where there was no other expertise with those lions and tigers, in deplorable conditions. We have had to go out there and address it. The government doesn’t have that capacity. We are grateful to serve our community with that capacity. We want to get to a world where we don’t need to deploy that capacity.
Senator Plett: Then let me ask this question. If we simply introduced a bill that said that every facility that wanted to have any animals in its care had to be accredited by the Association of Zoos and Aquariums, or AZA, or Canada’s Accredited Zoos and Aquariums, or CAZA, would that solve your problem? I think everybody in this room would agree with that. I would. I don’t want roadside zoos. I’ve been absolutely clear on that with those of you who I’ve met with before. If that’s the issue, let’s deal with it.
Let me just ask Mr. DeJong and Mr. Lanthier. You both have polar bears. The Assiniboine Zoo has a great polar bear enclosure. Well, I would suggest a polar bear is certainly a danger to humans if it were out running around. It would be equal to a big cat. However, I’m not hearing you say to put polar bears on the list. Are we wanting to add species to a list, or are we wanting to deal with the problem and say that you cannot have an animal and treat it cruelly? Because that we all support.
Dr. Lanthier: The group of animals who will presently benefit the most is the big cats. There are a lot of them, and they are kept in many areas that are inappropriate and also unsafe. However, if you are asking me if the bears, which are large carnivores, should be included, the answer is yes, because it is also inappropriate to keep a polar bear in your backyard or roadside zoo.
Senator Plett: Then let’s deal with that. I don’t want to argue, but I think we agree, Dr. Lanthier. Let’s create a bill that says you have to be whatever standard we decide. I believe CAZA and AZA are both great facilities. I know that, for your own reasons, you are members of AZA and not CAZA, and that’s fair. However, I believe they are both great organizations. If we had a bill that said you had to be CAZA- and/or AZA-approved in order to have a big cat in human care, would you support it?
Dr. Lanthier: For myself, it is an easy yes, because that will deal with more than 100 roadside attractions that are keeping thousands of animals in questionable conditions most of the time. This is how Bill S-241 was created. That long list is because there was a group of experts who felt like those animals should not be kept in roadside attractions — venomous animals or large crocodilians that are kept in roadside attractions or in one-and-a half or two-and-a-half apartment building. What do you do with that crocodilian when it is too big? That’s why so many species populated Bill S-241. If the filter to keep exotic or non-domestic animals in this country is that you need to be accredited by this, this or that, that would be amazing. However, that is not the way the legislators decided to tackle that issue.
[Translation]
Senator Dalphond: Thank you to everyone here today. I met Dr. Lanthier at the Wilder Institute when you were here two or three years ago. You’re doing remarkable work. Granby Zoo is a place I knew well in my youth as a Quebecer from the Montreal area. As for Toronto Zoo, I went there more than once with my young children a long time ago.
Mr. Gosselin, I understand that you didn’t have time to finish your opening remarks, which contained your three requests, but they’re the same requests as the other witnesses, so there’s no need to repeat them — I just wanted to check.
You suggested three amendments. You want us to add big cats and the Noah clause. However, you would like us to remove the word “cruelty” from the preamble. Where in the preamble? Is it in two places, or just one?
[English]
What is the intent exactly? What is the part of the preamble that is causing you concern?
[Translation]
Dr. Lanthier: I think it’s unfair to refer to cruelty simply because the animal is in captivity. Some animals would prefer to be in captivity. You know, the optimal curve of animal welfare doesn’t exist in nature. It exists a little earlier. In nature, there are droughts, floods, predation and so on. That is not optimal well-being. However, I’ve seen places where it was heartbreaking. I travel the world, and I have seen great apes kept alone in unspeakable conditions. However, in Canada, the great apes are all kept in very good conditions in accredited institutions. So perhaps the need for this legislation lies more in a spirit of influencing other legislation.
If we go down that road, we need to add more elements. If we only include the great apes and the few elephants in captivity in Canada, that’s not enough.
Senator Dalphond: What you want to remove are references to captivity as a form of cruelty. Do you agree with the content of the bill, which prohibits the captivity of elephants and great apes?
Dr. Lanthier: The exceptions are adequate because it’s pretty clear, from my interpretation, that if there are conservation or research projects, there can be an exception for keeping these animals.
Senator Dalphond: So do you agree with the principle that captivity may not be cruelty, but that the legislation should prohibit it, except in the exceptions provided?
Dr. Lanthier: Yes, with the exceptions provided. However, it’s important to understand that conservation isn’t limited to breeding for reintroduction into the wild. Nature is damaged and isn’t what it used to be. Populations in the wild are declining at an incredible rate, as we saw at COP. We have to change our course of action.
Conservation isn’t limited to breeding for reintroduction. There’s no definition of conservation, but we’ll get to that in committee when the bill is passed, I imagine. I don’t know how it works. It’s something that will have to be discussed, and we’ll have other comments at that time.
Senator Dalphond: To follow up on Senator Plett’s question, his position is that if you’re authorized by AZA or CAZA, legislation isn’t necessary. Do you agree with prohibiting the possession of great apes, elephants, big cats and perhaps even having other types of regulations, except in cases where there are exceptions provided for conservation?
Dr. Lanthier: Yes. I’ll add that many CAZA and AZA members are already active in conservation; they’re already doing it. There’s a door in the exceptions that exist for responsible institutions.
[English]
Senator Prosper: Thank you to the witnesses. Thank you for your work and the service you provide.
We had some constitutional law experts talk in a previous panel today, and we were getting into constitutionality — federally and provincially. Something that was mentioned from a number of you is animals who thrive within your facilities. There is a whole host of reasons for that. One thing that was mentioned was an increased life span compared to their counterparts in the wild. My thinking in terms of the grounds of this legislation — so that it is within the criminal law purview of the Constitution, 91(27) — is on the basis of cruelty. I think it’s a consideration under that particular power, which is quite expansive, from what we’ve heard. There are elements of public safety. If we’re removing cruelty from the bill, and if within your testimony captivity isn’t equivalent to cruelty and, in fact, animals thrive in captivity, then aren’t we essentially gutting the criminal law element for the purposes of this bill? I’m wondering if you can help me in that regard.
Mr. DeJong: I feel like we might be a panel late to really dive into that. We have these notions of success, thriving and life span, and when we talk about these individuals in our care, I have the privilege every day of going and watching our team work in the Indo-Malaya Pavilion and seeing the oldest Sumatran orangutan in North America at 56 years of age and asking the scientists, “What have we done as far as measuring stress levels and baseline levels on welfare? How did that change during a pandemic when there were no guests here compared to when they came back?” We have that data set and not making that fatal mistake of judging any animal’s half-century life by their worst 15 seconds that somebody saw on a bad day when they were displaying anticipatory behaviour. These are the challenges we face every day as we meet incredibly complex needs of individuals while being maniacally focused on protecting populations for now and future generations. This is difficult work. As for the constitutionality, I’m sorry, I can’t offer insights, but I can tell you that I work with incredible animal advocates who are relentless in their commitment to improve. The proof is in the data. Look at the size of the data set. We have thousands of points, incredible progress, particularly over the last 25 years. Let’s just make sure we’re judging today’s modern accredited zoo by what’s happening and not memories from half a century ago.
[Translation]
Mr. Gosselin: I’ll add the same thing. I agree.
I’d like to come back to Senator Plett’s comments about the importance of framing an exception in the legislation, for example, with zoo accreditation. This defines the field of expertise required to agree that there is no cruelty and that the expertise of animal caretakers and the conditions in which animals are kept are important. In this case, there’s a real need for accreditation to recognize all the work and expertise that goes into caring for animals.
In many cases, unfortunately, animals in the wild are in worse conditions than in zoos. One reason for this is poaching.
[English]
That’s one reason why we should promote institutions that have worked under very high standards, such as accredited zoos.
Dr. Lanthier: The challenge you face is to define a legislation that will cover the wide spectrum of captivity, because standards in captivity are very wide in Canada and around the world. We need to aim for the best standard possible to provide the best care every day to every animal, not only the charismatic specimens that, because they act like us, we think that therefore they’re intelligent. You would be surprised by octopus, ravens and many other species. The spectrum of captivity is so wide, I’m not sure if it will be easy for you to really have an impact on animal welfare by targeting just a little piece of the pie.
The Deputy Chair: Thank you very much.
I wanted to briefly follow up on the question Senator Prosper raised. It seems like you’re saying that captivity doesn’t necessarily equal cruelty. Then, are you basically saying that you don’t think this should be considered something that is part of the Criminal Code of Canada, as this bill purports to do?
Dr. Lanthier: I’m not a lawyer.
The Deputy Chair: Cruelty would necessarily, potentially, be the part that makes it a criminal act. Are you saying, then, that you don’t think the subject matter of this bill, if we take cruelty out of the preamble — do you agree or disagree that it should not be a Criminal Code of Canada matter?
Dr. Lanthier: I don’t think it’s criminal to keep animals in captivity; I think it’s criminal to keep animals in bad conditions, if there is no purpose for keeping those animals, if it’s not for meaningful education or supporting impactful conservation field projects. It can provide funding for the range country. You can build capacity and provide scholarships in a range country. There are many ways we have a responsibility to act on the COP15 framework. If we don’t do this, I think the biodiversity crisis will just be exacerbated.
The Deputy Chair: Thank you.
Gabriela Mastromonaco, Senior Director, Wildlife Science, Toronto Zoo: Simplistically, we’re hoping to uncouple cruelty from captivity. It’s cruelty in level of care, which is a very specific part — not captivity, which is such a broad term.
The Deputy Chair: Doesn’t the bill actually equate the two?
Ms. Mastromonaco: Essentially, in some of the details, but to begin the preamble stating that captivity is cruel sets the tone for the entire bill. I think uncoupling it might help with some of the clarity.
The Deputy Chair: Okay. Thank you.
[Translation]
Senator Carignan: My first question is for Dr. Lanthier. I don’t know if you read my speech — maybe you didn’t — but we were saying pretty much the same thing, which is that in doing my research, I realized that there were animals that had a much more evolved cognitive intelligence and approach than an elephant or a monkey, for example. You talked about octopus, and we can talk about rats and pigs. How do you see the intelligence of an animal, and which ones would you put in a higher category than an elephant?
Dr. Lanthier: I sometimes wonder if humans have enough intelligence to legislate or define the intelligence of animals.
Senator Carignan: Natural law is probably the best.
Dr. Lanthier: We’re talking about animals, but we should be talking about groups of animals, because ants together exhibit behaviours that show intelligence, mutual aid and compassion. An ant on its own might be amusing, but a group is different. There’s that notion. Even if I gave a list of degrees of intelligence, how much intelligence does it take to be smart enough to be respected? That’s why I indicated in my notes that we have a responsibility to provide the best possible care for all animals. There’s a lot we don’t know. On the moral side, we shouldn’t make a distinction between one species or another because they look like us or for other reasons.
Senator Carignan: I understand. Mr. Gosselin, I’m looking at your press release of February 7, 2024. You made an announcement about construction at Granby Zoo for an outdoor habitat — work that will cost $1.3 million.
Can you tell us about the kind of work or habitats you’re creating for mandrills, in particular, and how that will help animals?
Mr. Gosselin: The black-and-white colobus monkey and the mandrill are two species in Africa. Senator Carignan, this is a good example of the investments that must be made and that are required by our accreditation, which includes regular inspections. Captivity conditions and standards are becoming increasingly stringent, so we have to invest, year after year.
At Granby Zoo, my colleagues will be able to say the same thing. We’re talking about millions of dollars every year. It’s an outdoor habitat to enable these two types of primates to enjoy daylight, quite simply. It’s part of the rules that are needed for these animals. When I talk about daylight, we’re also building equipment to give them enrichment. Our aim is to reproduce the natural behaviours of these animals as closely as possible. We also make them live in groups. These are often habitats of a certain size in which there’s a mix, not just this type of animal, but other animals that go well together and create an important social aspect. It’s different for every animal. We’ve developed standards and expert groups for each type of animal in our accreditations.
Senator Carignan: We agree that all these monkeys and habitats are in captivity. The monkey can’t go out and walk around downtown Granby.
Mr. Gosselin: That’s right. Earlier, you mentioned public safety. When such habitats are built, it’s very important not to end up with a monkey in the middle of downtown Granby, but that it has the space and everything it needs to reproduce its natural environment. Senator Plett mentioned this earlier, and I accompanied him on his visit. It’s all part of the circumstances in which we operate: All zoos are increasingly reproducing the natural environment of these animals.
Senator Carignan: Thank you.
[English]
Senator Tannas: Thank you. It’s been a great discussion.
I’m interested in talking a little bit about the addition of large cats. You have said it yourselves: This bill seeks to regulate, in some way, fewer than 60 animals, but we know there are hundreds if not thousands of big cats in Canada. The problem a number of us had with Bill S-241 is that it was silent on what to do with the inventory of big cats today. Thinking about it practically or politically, driving or creating a circumstance by which the owners of these cats can’t sell them, export them or do anything with them except continue to feed them is probably going to lead to a mass slaughter, which will horrify the very segment of the population that is pushing for all of this to happen. I think that’s probably one of the reasons why the government stepped in and said, “We have to start somewhere.”
In my research on Bill S-241, I actually came to the Wilder Institute and spoke to the folks there. I’m going to ask you a question. If you’re advocating for the addition of cats, do you recognize that, by putting cats on the list, the interruption of the business model and the smearing of the ownership of big cats is likely to lead to a huge dislocation of these animals that will result in a slaughter? That is not politically or, for society, acceptable. There’s a transition that needs to happen. You’re the leaders in this. Have you given any thought as to how you could collectively facilitate a transition that would gain wider acceptance for the public? Could we put that as a challenge to you as you continue to advocate for the addition of cats, whether it’s within this bill now or as a minister some day turns his or her mind to how to put big cats on this list?
Mr. DeJong: Thank you for that question, senator.
You’ve put your finger on the pulse of what makes these discussions so challenging, which is that transition period. We’ve talked about no animals being left behind. We do not want those individual animals placed in harm’s way. The reality is that they’re there right now. We’ve already gone through this at your Toronto Zoo. We’ve had two tigers that were actually brought in because the cruelty laws were violated. They needed a transitional home, so they came to our sanctuary before they could move to another sanctuary in the United States.
We’ve seen strong legislation and things such as clauses to honour existing homing and a commitment to longer-term standards. One of the key things about accreditation is thinking about the entire life span of the animal. Will the organization, the individual, be able to care for them, no matter what? If Dr. Gaby has a tragedy, does she have three tigers in her backyard and no contingency plan? That’s a problem. She’s lovely, but she shouldn’t have been in that position in the first place. We have to make those kinds of shifts. We need to honour where they are and figure out where they are because we don’t even know who is where. We then must start a new chapter for these animals. Our master plan includes a facility to house and transition individuals to support them.
Senator Tannas: Could you articulate a plan where you led the heavy lifting? As you’ve said, the government can’t do it. They’re not capable of this. You guys are the only ones who can craft the plan and know what it’s going to cost so that the decision comes with funding and so on. Could you leave here with that as a challenge and to work together to solve that issue? Just saying it’s an issue and advocating for the government to do something is a recipe for disaster.
Dr. Lanthier: Yes, but I would suggest the first two steps: Stop breeding and stop importing. By attrition, it will take a few years, but that will help to solve this issue or tragedy.
As I said to my team, we will not compromise the welfare of our residents by overcrowding their spaces because we have a responsibility to provide them the best care possible. We also have a moral responsibility to the other animals that are in everyone’s backyards. Stop breeding, stop importing and start tracking. That would be amazing.
Senator Cotter: Thank you very much. This has been really terrific. I had another commitment somewhere, so for this part of the discussion I would say that I came to doubt but stayed to pray. Thank you for that.
The discussion about cruelty is a fairly important one. I think I understand the points that you have been making. The risk for us is that the removal of cruelty raises the spectre that this may not be quite as justifiable in criminal law. While I know that you’re not lawyers, the federal government has only so much scope or authority to do this. I think you want a national response here. I think I’m right about that. However, good ideas are not just by themselves within federal jurisdiction. If we want this initiative to be undertaken by the Parliament of Canada, we need to ground it in a location here. One of the questions then becomes: Are there circumstances in which captivity can constitute cruelty? If the sponsor of the bill is listening, he needs to think about how to craft and understand that to hold it together as a legitimate federal initiative. On this topic — not quite the same question that Senator Tannas asked — do you think that you have ways of phrasing circumstances that would constitute cruelty with respect to which the Government of Canada can legislate? You may have a lawyer back home who can write a slightly different preamble. Absent that, we have to think about a road that’s a bit closer to Senator Plett’s, and that becomes a road that is very difficult for the Government of Canada to follow. We all love good ideas, but we need to have them within the framework of what Ottawa can do. That’s my first question.
Second, in relation to other creatures — this is somewhat like what Senator Tannas asked — ought we not include them in the legislation but create the power so that Ottawa can follow a roadmap when it’s possible to initiate a broader scope of the bill that can be done safely? I’m thinking here of big cats in particular. It would be better not to put it in the bill yet but impose an authority to do that at the right time down the road, almost when you can advise our government that the system could be ready for that. May I hear your thoughts on particularly the second question? You might not want to commit to rewriting this part of the bill for us, but that would be a helpful thought because I think you’ve really informed us a lot. Ought we be patient about the larger and maybe more important question that you identified?
Mr. DeJong: Our team can certainly assist if you’re talking about cruelty and defining it because it’s working together to describe the standards of what cruelty looks like, what the condition of that animal looks like, and what indicators do we have suggest that it’s been subjected to unacceptable conditions? In that sense, I don’t think you have a more qualified group of organizations around to help work out what that threshold could look like in a defensible, justifiable and clear fashion — one that could be interpreted with less doubt and with less grey than the work of Maria, Dr. Nic, Gaby and my counterparts here.
Our commitment with our partners has been to collaborate to address the gaps in legislation we have nationally. I’m going to say this again: Too many exotic animals are falling through the cracks. Our concern is for their welfare. We can do better, and we know better, so let’s start down that road. We have an imperfect tool in front of us now, but it was the one we were presented.
Senator Cotter: Fair enough.
Senator Plett: Chair, when Mr. Gosselin made his opening comments, he was leading up to some possible amendments. If they are the same as what Mr. DeJong and Mr. Lanthier had, then that’s good. If they are different, I would like him to table those so we can have them as well.
The Deputy Chair: Sure, if he can table them, but I heard him respond to another senator that they were the same.
Senator Plett: They were the same? I missed that. That’s fine. Thank you very much.
The Deputy Chair: Thank you very much to all of you — those of you who were online to support your colleagues in the room and all of you in the room to take our questions today.
Thank you very much, senators. I appreciate all of your help today.
(The committee adjourned.)