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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 5 - Evidence for December 12, 2002


OTTAWA, Thursday, December 12, 2002

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-10B, to amend the Criminal Code (cruelty to animals), met this day at 10:53 a.m. to give consideration to the bill.

Senator George J. Furey (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, today we are carrying on with our study of the proposed amendments to the Criminal Code in respect of cruelty to animals provisions. First, we will hear from the Canadian Federation of Humane Societies represented by Mr. Buffett and his colleague Mr. Van Tongerloo. Mr. Buffett is a long-time friend of mine, as well as a fellow Newfoundlander. We will then move on to the International Fund for Animal Welfare. Speaking on behalf of that organization, we have Mr. Smith and Mr. Ruby.

Please proceed, Mr. Buffett.

Mr. David Buffett, President, Canadian Federation of Humane Societies: Honourable senators, I am a practising lawyer in St. John's, Newfoundland and Labrador, but I am here in my capacity as the president of the Canadian Federation of Humane Societies, or CFHS. I will proceed to the critical issues of Bill C-10B.

First, insofar as Bill C-10B has been said to have an impact on animal use industries, it has been suggested that many industry practices, such as farming practices, would be made illegal under this bill. As former justice minister McLellan stated last fall, that which is lawful today remains lawful under this bill.

I note that the Canadian Veterinary Medical Association, in a December 10, 2002 letter to the Honourable Senator Furey, has stated its wholehearted support for Bill C-10B. It is hard to imagine a body that is more intimately involved with animal user industries than the CVMA. They wholeheartedly support the bill, and it is crystal-clear in this letter what their position is. I would recommend that letter for the attention and reading of all honourable senators.

The keywords in the current Criminal Code that make animal suffering a crime are retained in Bill C-10B. It still must be proven beyond a reasonable doubt that the pain and suffering was inflicted wilfully or recklessly, unnecessarily and that the pain was unavoidable. The test for criminal liability has not changed, in my respectful submission, one iota. Those opposing the bill claim that it will result in the loss of common law defences, as a result of moving the animal cruelty sections out of the property part of the Criminal Code. I refer you to the June 10 legal opinion from Roger Tassé of Gowlings, wherein he concludes that the bill provides greater protection for animal users than the current code. He explains that the defence of ``lawful excuse'' is retained by virtue of subsection 8(3) of the code. He also notes the extraordinary step that has been taken by incorporating 8(3) into this bill, leaving no doubt as to its applicability.

It is also worthy to note that the Supreme Court, in a case called R. v. Kirzner, has stated that 8(3) should not be looked upon as freezing the power of a court to recognize new defences as they deem proper, thus enlarging on the common law.

Regarding the defence of colour of right, which has been a topic of concern to this committee, we submit that it is preserved in subsection 8(3), but that it is inapplicable to animal abuse crimes. Mistake of fact exists as a defence, apart from colour of right, and wherever in history a mistake has been availed of as a defence, it has been with respect to a mistake of fact. A case in point is R. v. Comber, which has been addressed briefly by those who have appeared here, and referred to by some as a mistake of law. In my respectful submission, there was no mistake as to the law or the legal relevance of facts. It was a mistake as to fact. It was a mistake as to what the physiological state of the animal was.

To the extent that mistakes had been applied in the past, it has been with respect to mistakes of fact, which is a defence totally apart from colour of right.

To the extent that the mistake of law element can be said to be an element of colour of right, and to the extent that it can be said to exist, it is clear that it reaches no further than mistakes as to civil law — or, more aptly, mistakes as to private law as opposed to public law.. This is outlined in our paper. Madame Justice Cameron, in her decision in R. v. Watson, in the Newfoundland Court of Appeal and Donald Stuart in his text, ``Canadian Criminal Law,'' both make it clear that it reaches no further than mistakes as to private rights between people or misunderstandings with respect to issues between people. Even the detractors of the bill, in the legal opinions that they have mustered, have been forced to concede that the defence is narrow, unusual and unlikely to arise.

The Ontario Federation of Anglers and Hunters obtained a legal opinion from a respected Toronto criminal lawyer Michael Code. He believes it is far more likely that a charge under C-10B will arise as a result of cruelty to animal offences rather than a removal of any colour of right defence. He takes the position that the colour of right defence has been removed. We disagree with that, for reasons that we will state subsequently. Even Mr. Code suggests that it is far- fetched to think that a charge will be laid that would not otherwise be laid as a result of the removal of that defence.

As I have said previously, colour of right, in my respectful submission, does not apply. Colour of right is a proprietary concept. Animal crimes are not offences that concern themselves with property rights. These cruelty provisions do not exist because of an animal's property aspects, but because they are sentient creatures, capable of experiencing pain and suffering. That is why these offences exist. It has nothing to do with the fact that they are property.

How can it be said that there could ever be a colour of right to perpetrate unnecessary cruelty? How could it be said that there could be colour of right to brutally and viciously kill? How could it ever be said to be a colour of right to kill without a lawful excuse? It is an inapplicable and inept concept to apply to these particular offences.

Furthermore, and if I am wrong and in the very unusual eventuality that it should become applicable, in our submission, the court is not deprived of the right of relying on the defence to acquit an accused who is lacking in moral blameworthiness. I say that for two reasons: one is the R. v. Kirzner, which articulates the notion that 8(3) does not exhaust the defences that a court can apply. If a situation or circumstance has arisen whereby a court needed to rely on a new defence to acquit someone who was lacking in moral blameworthiness, Kirzner suggests there is the ability to do that.

Further, with respect to that issue, it is our position that to the extent colour of right could be applicable as a defence to a situation such as this, it never superseded the common-law defence. Colour of right or claim of right, as it is sometimes called, is never completely superseded by section 429. I refer the committee to R. v. Ruzic, a Supreme Court case that dealt with the defence of duress. The defence of duress is addressed in section 17 of the Criminal Code. The court in Ruzic held that section 17 did not completely supersede the common-law defence of duress. I would suggest that the same holds true with respect to colour of right and section 429, so that the absence of section 429 wording in Bill C-10B does nothing to detract from the fact that a colour of right offence could be applied if the circumstances arose where it warranted applying. I cannot see or envisage how it could, because it is an inept term and concept to apply to non-proprietary offences.

An example of new offences arising is the offence of officially induced error of law. That is an example of a court seizing on what the Supreme Court of Canada said in Kirzner to be able to develop a new defence where the circumstances warranted.

Opponents to this bill have called for exemptions for certain segments of society, industries and whatnot. They have suggested that an amendment should be made to the bill preventing the provisions from interfering with the use of animals for a lawful purpose. In our submission, it would be highly inappropriate to provide for exemptions.

Minister McLellan explained in her response to such a concept that no one should be explicitly exempt from the Criminal Code. Police officers are not exempt from assault laws. Physicians are not exempt from assault laws. Lawyers are not exempt from laws regarding obstruction of justice. By the same token, people who use animals have a duty to care for them humanely and with respect. In my respectful submission, asking for exemptions is tantamount to asking for a licence to be cruel.

I would like to take a minute to talk about proportionality of sentences. That is a subject that has been raised in certain quarters.

Proportionality of sentences, in my respectful submission, is adequately addressed in an opinion that we have submitted from Roger Tassé. I can say no more with respect to that topic than what that gentleman has already said.

With respect to animal rights groups infiltrating SPCAs and humane societies, I suggest that has not happened. It will not happen. Animal rights organizations have not gained a foothold in these organizations. SPCAs and humane societies have worked hard over the years to cultivate the respect of police officers, the judiciary, the government and industry. It would be highly resistant to any such thing occurring.

I will conclude my commentary by asking you, on behalf of humane societies and SPCAs and the hundreds of thousands of people across Canada who support them, to pass this bill in its current form. No further amendments are needed. Quite frankly, we are stunned at the degree of misinformation that has been circulated about this bill.

The Chairman: Thank you, Mr. Buffett.

Mr. Clayton Ruby, Legal Counsel, International Fund for Animal Welfare: Honourable senators, it is indeed a great honour to come before the committee, which is home to some of the most distinguished legal minds of our generation. I hope I can assist you with your very important work and that the submissions and the questions that follow will be helpful.

We say this bill is reasonable and long overdue. Pass it as it is. Why? It started in 1892 with the first Criminal Code in Canada. It was touched up slightly in 1953. However, it needs modernization. That is what has been achieved. Why? It has already been heavily modified before it reached you. Why? Because Canadians are absolutely outraged by real cruelty to animals, not by industry practices that some might debate, but by real cruelty to animals. This bill addresses that fairly.

Take a look at some of the examples. You have before you this morning a thick volume, which contains a selection of press reports from all across the country, small towns and large. That is the kind of material that has bothered people. I choose a couple of incidents at random. A 12-year-old Pomeranian dog is barbecued by a female owner. People are shocked by this.

A family that ran puppy mills in Ontario has been arrested 10 times in the past 37 years — 180 sick dogs were put down in 2001. The most they ever suffered was a three-month jail sentence and a $500 fine. People are outraged by that.

There is the case in Toronto where a cat was skinned alive as a work of art and videotaped up close. That is real animal cruelty. That is what this bill strikes at, and nothing else.

I picked up today's paper. This is just today: The Grande Prairie Daily-Herald Tribune talks about a charge laid because 100 hogs were being transported to slaughter from Alberta, and along the way they were stopped, and it was found that the hogs, in large numbers, had frozen to death due to inadequate bedding and inadequate heating. That is the kind of problem people are worried about.

The Edmonton Sun, ran an article about hot liquid being poured on a dog — an eight-month-old they called Pooch — who is now recovering from third-degree burns but limping badly. That is the kind of story that people get upset about.

The Ottawa Citizen, a 44-year-old man was charged after a cat was thrown from a twelfth-floor balcony of an apartment building. The cat was found dead on the ground under the balcony.

The Edmonton Journal recounts a story where a cat was swung by its tail and smashed into a tree. No charges have been laid as of yet because they do not know who did it.

Those are the kinds of incidents that will be captured by this legislation and which Canadians are genuinely upset about.

I turn to some of the legal issues that will concern honourable senators. I believe you are in possession of a copy of my legal opinion. I would like to draw your attention to one point on page 2.

What is going to be the effect of the absence of section 429(2) of the Criminal Code? Will it make any difference? The leading case on this kind of clause is R. v. Holmes, in the Supreme Court of Canada: possession of housebreaking tools. Lawful excuse was retained specifically, however, the onus was reversed from what the common law would have been; you had to prove unlawful excuse. The Supreme Court of Canada:

The words ``without lawful excuse'' do not encompass excuses or justifications that would exist if those words were omitted from the section and thus require proof by the accused. Manifestly, if the words were omitted from the Code, general common law excuses, such as duress or authorization by law, would continue to be available to the accused. T

The justice department drafters have just that taken the Supreme Court of Canada at their word. It is manifest. You leave it out. Then all the protections in subsection 8(3), none of which have an onus on the accused, are triggered, in force and operative. That is the legal effect of this change. It increases protections; it does not decrease them.

That is why I come to the conclusion, as does Mr. Tassé, as does Mr. Mosley in his testimony before you, that there is no decrease in protections at all in this legislation that has been put before you, if it gets passed.

The Chairman: I am wondering if you could give me your opinion, Mr. Ruby, on the question that has been raised in this committee regarding lawful excuse.

Now that the Criminal Code has grouped and created a new offence — killing animals without lawful excuse — do you believe that provincial hunting licenses, for example, would be a legal excuse for killing animals, considering that this is a federal piece of legislation and we are dealing with provincial licensing?

Mr. Ruby: No. Compliance with provincial hunting regulations, licenses or otherwise, is a condition precedence to the right to hunt.

However, that right, privilege, lawful excuse, however you term it — and it is all of those things in some contexts — is not dependent upon provincial legislation. It is a common law excuse. Hunting in Canada is a common law lawful excuse. You have to comply with the provincial rules to do it lawfully.

This is federal legislation. It is not dependent, in my view, upon provincial regulations in a particular way. The province has its own remedies if someone breaches its terms.

Senator Beaudoin: My question is addressed to Mr. Buffett and Mr. Ruby.

The other day honourable senators had exactly the same problem, the reversal of the onus. In the jurisprudence that we have quoted, one case is at the Court of Appeal. They said that the reversal, as such, is unconstitutional. However, there is the Keegstra case at the Supreme Court of Canada. We all know that it is a very special case. It is related to hate propaganda. We are very careful about this.

Starting from the point that the reversal as such is unconstitutional — and there is only one very special case where it is said to be constitutional — I believe that you are in favour of keeping that, Mr. Buffet. Is that right?

Mr. Buffett: I am not sure what reverse onus you are talking about honourable senator.

Senator Beaudoin: I am referring to section 429.

Mr. Ruby: There was a reverse onus, an onus on the accused under section 429, which may well have been unconstitutional, as you point out. However, the new legislation has no reverse onus at all. It complies completely.

Senator Beaudoin: You do not touch that at all.

Mr. Ruby: You touch it. It is removed. The reverse onus part is now gone. The substantive part remains.

Senator Beaudoin: However, one of the witnesses is in favour of keeping it. Are you not, Mr. Buffett?

Mr. Buffett: I support the bill as it is. I do not believe that you need section 429 in the bill. I do not believe section 429 is appropriate at all. The reverse onus disappears when section 429 disappears. I support the bill absent the reverse onus.

Senator Beaudoin: You do not promote any amendment. You are satisfied with the bill as it is, as is Mr. Ruby?

Mr. Buffett: Yes. That is correct.

Senator Beaudoin: That answers my question.

There is one point, Mr. Ruby. You referred to the case of Holmes at the Supreme Court level. Could you say one or two words about it?

Mr. Ruby: Holmes was a case where there was a reverse onus very much like section 429 in the offence of possession of tools for house-breaking. The Supreme Court of Canada said because that section is there with a reverse onus, right in the actual terms of this offence, section 8(3) does not apply.

However, they said, manifestly — the passage I quoted — if that was removed, subsection 8(3) would apply fully. I say that is the rule that the parliamentary drafters followed. They said if we take it out, the Supreme Court of Canada said subsection 8(3) applies. We do not need the reverse onus anymore. We will let the Crown prove everything beyond a reasonable doubt, and that solves all of our problems. I believe that is exactly what they did.

Senator Beaudoin: The bill as drafted respects the jurisprudence of the Supreme Court on that point.

Mr. Ruby: On that point, that is right. It follows it word for word.

Senator Beaudoin: That is enough for me.

I had another question that was of great interest. Yesterday, we heard that the guidelines may be drafted by the Governor in Council, and by civil servants. I was stunned when I heard that argument. Senator Baker reacted to that, too. A crime is a crime. It should be in the statute itself.

Senator, there is no provision here that I can see for guidelines. Guidelines are not customarily part of the criminal law, as you know, and there is nothing here to suggest they will become one.

Senator Beaudoin: They are not part of the criminal law when it is a question applying the criminal law and the criminal procedure because it comes under 92(14) the administration of justice. Civil and criminal is provincial.

Mr. Ruby: I understand.

Senator Beaudoin: However, yesterday, we were told that they apply with this bill, guidelines that are very close to criminal law. I do not think the civil servants may enact a criminal law.

Mr. Ruby: It is true that the provincial attorneys general can, and, in some instances have, done very detailed guidelines. An example would be in sexual assault cases: when to prosecute, when to not prosecute, when to proceed. They have the right to do that.

Mr. Buffett: They are policy manuals.

Mr. Ruby: They administer the criminal law. That is no different in this case. They can do it if they wish. We cannot stop them. They have a right to decide how the laws are administered in their province.

Senator Beaudoin: It is only the administration of justice, the application.

Mr. Ruby: If it went beyond that and attempted to intrude in the field of criminal law, it would be unconstitutional. I cannot imagine that happening.

Senator Baker: First of all, I wish to welcome the witnesses. David Buffett is very well-known in Newfoundland. I recall reading some of his cases when I first became a politician, and that is 30 years ago. That was in the 1970s. When the Charter came in, Mr. Buffett was one of the first people to challenge the section 10(b) rights. I recall a case that you had regarding the roadside test.

Senator Beaudoin referred to the suggestion we heard yesterday that there would be some guidelines passed on, as you say, to the Crown prosecutors by the attorneys general. Of course, Senator Beaudoin pointed out that that is up to the discretion of the Crown prosecutor, and certainly, judges would not look too kindly on those suggestions.

Honourable senators discussed briefly the five-year rule as it relates to repeat offenders for impaired driving that is in effect in some of the prosecutors' manuals throughout the nation. That was the substance of the discussion we had.

Mr. Buffet, you made reference to R. v. Watson and Madam Justice Cameron. You then suggested that the defence of colour of right respected proprietary rights. You also referred to matters of fact versus matters of law. I will read to you a paragraph from R. v. Watson and ask you to tell me what you think of it, in view of what you have said. The Newfoundland Court of Appeal reviewed all of the case law from the Supreme Court of Canada and the courts of appeal in various provinces, primarily Ontario, and came to this conclusion:

While it has been the subject of some debate, the weight of the authority and logic suggests that colour of right is not limited to errors of fact but extends to errors of law. Further, contrary to the submission of the Crown, colour of right is not limited to errors of law respecting proprietary or possessory rights, though certainly most of the cases dealing with colour of right would appear to fall within that category, no doubt because of the nature of the offences to which the defence is made applicable. DeMarco supports both those conclusions.

Is that not at variance with your submission of a few moments ago, Mr. Buffett?

Mr. Buffett: Perhaps somewhat. However, my point was that that is where colour of right had its origins. It is a property law concept. Some courts have suggested that it can be extended to other areas; however, the areas have been few and far between. I just cannot see how it could be extended to these particular offences. As I said, how could anyone have a colour of right to perpetrate unnecessary cruelty? It is an inapt concept.

In my respectful submission, when these offences were dealt with back in the 1800s, it was poor legislation in that they lumped these offences in with a lot of property crimes. They made concepts that were perhaps applicable to property crimes, and they tried to make them applicable to these offences. The fact that it has never been applied — as Mr. Ruby said — in a legal opinion, and never been applied historically, speaks volumes. It is inapplicable.

Mr. Ruby: Senator, can I assist you on that? You will see a footnote at the bottom of page 6 of my submission. The portion that you read is not the final view of the court. She goes on. What she says is that we are not going to restrict it to proprietary law, and that is true, but we are going to restrict it to civil law. A mistake of criminal law is not part of this. It has to be, first of all, a mistake of civil law. Secondly, before it operates as an excuse, it must negate the mens rea or mental element otherwise required by the definition of the crime.

Consider a mistake of civil law. Let us say that I wrongly believe that this is my dog. It would not negate the mental element because that does not give me a right to torture her because it is my dog. Just because it is my dog, that it does not give me any right to commit a cruelty act.

There is no application for this doctrine. It does not affect this offence because it does not extend to criminal law mistakes.

Senator Baker: Mr. Ruby, I do not know if I misinterpreted what you said a few moments ago as it relates to a question from the chairman of the committee — about federal law encroaching or superseding provincial regulations. I understood your answer, but you were on the other side of the argument in R v. Ward, if you recall that case of the blue backs.

Mr. Ruby: I do, the Supreme Court of Canada, yes.

Senator Baker: The Supreme Court of Canada over-ruled the Newfoundland Court of Appeal.

Mr. Ruby: Right.

Senator Baker: You did a very good job in that case.

Mr. Ruby: I am grateful; however, I do not see the inconsistency.

Senator Baker: The inconsistency is that the Supreme Court of Canada ruled that a federal regulation — regulation 17 regarding cruelty in the seal hunt — applied to the sale, trade and barter of seal skins, of blue backs. These people are presently being charged. Charges were laid last week against 108 sealers. I have to agree with the Supreme Court in the conclusion that they came to. The pith and substance of the legislation allowed them to continue on, as your argument was, to be able to form this objective, and therefore it encroached on clearly what was provincial jurisdiction.

My question to Mr. Buffett is this: Is there any harm in leaving article 429(2) in the new legislation? Is there any harm in putting it in, since so many people are asking for it? I would like to hear Mr. Ruby on that as well.

Mr. Buffett: I suggest that it is harmful in a number of respects. One respect is that it negates the benefit to accused persons of subsection 8(3) of the Criminal Code; that is what I believe article 429 does.

I also would submit that it somehow sends a message to people that you can have a colour of right to perpetrate unnecessary cruelty. How can that be? If anyone around the table can tell me how one could have a colour of right to perpetrate unnecessary cruelty, I would be interested in hearing it.

Mr. Ruby: I can add to that, honourable senators.

If you leave it in, you are leaving in the obligation on the accused to prove the lawful excuse, and then you are in a whole new situation. The court said that if you leave it in, you will not have recourse to 8(3) because Parliament has changed the onus from the common law and that evinces an intention that 8(3) should not operate. This legislation is more favourable to accused persons by a mile. It incorporates all the common law defences, not just one or two, and it takes that onus off and lets the Crown prove everything. As a defence lawyer, I really want to keep that onus on the Crown. I want section 8(3) rather than article 429.

Senator Baker: My concluding question is on the definition of ``colour of right,'' Mr. Ruby. It has been defined many times very clearly: If someone has a honest belief in a set of facts that would provide legal justification or legal excuse to actions that would then cause them to be innocent. That wording is found — as Mr. Buffett knows — in the Fisheries Act to provide a legitimate defence that has been used hundreds of times. The wording is there — not colour of right — but the wording. It is in section 78(6) of the Fisheries Act where, if someone honestly believed in a set of facts which, if true, the wording goes, would make their actions innocent.

If the words are not there, the defence itself is being used in other pieces of legislation. In R v. Jorgensen, the Supreme Court of Canada, they looked at the exceptions to ignorance of the law is no excuse. What did they list? They listed codification of ``colour of right'' and ``officially -induced error.'' My question is, if it is being used in various pieces of legislation of recent vintage, using the same defence as colour of right, then why would it be wrong for us to put it in?

Mr. Ruby: There is an easy answer to that. As long as you just repeat the common law, there is no implication that you intended to oust the general terms in subsection 8(3)'s general terms. However, Holmes says if you change the common law and change something, as with reverse onus in Holmes, then we are going to operate under the inference that you did not want 8(3) to operate at all. That is the statutory drafting rule.

The Chairman: I am looking at Holmes, and I will read you a quote from it to see if it is on all fours with what you are saying. With respect to the phrase ``without lawful excuse, Justice McIntyre says:

Manifestly, if the words were omitted from the Code, general common law excuses, such as duress or authorization by law, would continue to be available to the accused.

Mr. Ruby: Right.

The Chairman: The conclusion that these general common law excuses are not encompassed within the phrase ``without lawful excuse'' entails the firm conclusion that these excuses need not be proved on a balance of probability since they are not affected by the words ``the proof of which lies upon him.''

It does not matter if they are there, is what Senator Baker is saying.

Mr. Ruby: I beg to differ with your interpretation, senator. What these words mean, if you have in the reverse onus and the words ``without lawful excuse'' in the section, then manifestly there is no intention to have section 8(3) operate with its obligation on the Crown. However, manifestly, ``if the words were omitted from the code, general common law excuses'' — in subsection 8(3) — ``would continue to be available to the accused.''

That is the rule. If you include it in the section, you run a strong risk, based on the Holmes analysis, that 8(3) would not be available. My own view is that if you do not include the reverse onus, it might survive, but why create uncertainty for no good reason? We have been told to leave it out and subsection 8(3) will then operate with its full onus on the Crown.

One more comment, if I might. I did not deal with Senator Baker's question on Ward and the two positions I am taking. In Ward, we won because the federal law is paramount. It can intrude on provincial jurisdiction, as long as you are within a federal head of jurisdiction. The provincial property law and civil rights aspects of it is the loser. What I am saying here is consistent. The federal government creates, through its federal common law, a justification or excuse and the province cannot over-ride that within the area of criminal law, which is clearly federal.

The Chairman: I will ask one further question before we move to Senator Andreychuk. This arises from Senator Baker's question and one that I asked earlier. If you say that hunting and commercial killing is dependent on the common law, regulated by provincial statutes, does the new federal law of killing without lawful excuse trump the common law?

Mr. Ruby: I do not think the common law ever permitted you to kill without lawful excuse. There was not much discussion about the common law of animal rights. We have had animal cruelty codified since 1892. I cannot imagine that the common law would say it is okay to kill cruelly. If that is the case, there is no conflict. I am not sure that is a good answer but it is the one that leaps to my mind at the moment.

The Chairman: I am struggling with the concept of a provincial statute attempting to give lawful excuse for a new federal offence.

Mr. Ruby: My own judgment — and I may be wrong — is that I do not think that is within provincial jurisdiction to do.

The Chairman: You are obviously familiar with R v. Jorgensen. As Senator Baker has mentioned, that is clearly not, from Mr. Justice Sopinka's opinion, the case. Do you think that would create a problem for regulated hunting or other commercial activities?

Mr. Ruby: As I view it, the province has its own sphere of property and civil rights, where they can regulate hunting to their heart's content. However, they cannot do so in a way that alters, changes or restricts the federal government in its criminal law role.

Senator Andreychuk: I wish to ask questions from a more practical point of view. We continue to say that we do not want to treat animals cruelly; we want to treat them humanely. I agree, as do most Canadians. The dilemma is that our values and our assessments and common standards of what is ``humane'' and what is ``cruel'' have changed — not only for animals but also for people. We started out treating animals as property. We have now put them in a different category. I am not quite sure what category they are in. That is my dilemma.

I have followed how we have changed from women and children being chattels to having independent status. I have difficulty finding the point where we changed from saying animals are property. Even if they are property, they should be dealt with humanely. We said you could not kill cattle, but we were silent on other animals. Now, we are at the point of saying you cannot kill animals without lawful excuse.

Where did we change from property value to an independent status for an animal? That has some effect on the lawful excuse, in my opinion.

Mr. Ruby: Let me start off by saying that animals remain property. They were property before this bill came forward and they are property afterwards. There is no change in that.

What is significant is that taking it out of the property section implies to me that this business about making it criminal to be cruel to animals in a meaningless sense no longer flows from the status as property. It is not because it is not mine, but because it is not right. We are saying something not about animal rights here, but about human moral standards. That is what this legislation is all about. It is not about property, animal rights or anything like that.

There are other examples in the Criminal Code that make this clear. For example, we have always had this funny offence of theft of oyster from oyster beds being a criminal offence. We have never thought that this takes the oysters and makes them non-property. We have never thought it gave rights to oysters. However, that law has been on the books since 1892.

If you view it that way, there is no change to the areas you are examining. You are right; in the last 10 or 20 years, we have all read the newspapers and we are more sensitive to these issues. Prosecution patterns may change, attorneys general may put resources in different areas, but this legislation makes none of those changes.

Senator Andreychuk: You are saying by removing this from the property section, that we make absolutely no change.

Mr. Ruby: None at all.

Senator Andreychuk: Therefore, we can continue to use all of the jurisprudence that we have been relying on, even though we are now creating something called section 182.2(1)(c), ``kills an animal without lawful excuse.''

Mr. Ruby: There is no change.

Senator Andreychuk: Do you not believe a judge could say that if they have created (1)(c), they must have intended some difference?

Mr. Ruby: No.

Mr. Buffett: I agree with that. The current provisions of the Criminal Code dealing with cruelty to animals exist — as I said — not because they can be someone's property. The mischief that these provisions are trying to check is the mischief of preventing harm to creatures that can experience pain and experience suffering. We, as a society, think that it is wrong — that there should be an unbridled right to inflict pain or suffering upon fellow creatures that occupy this earth. The current provisions do not exist because the horse was owned by a farmer or a rancher; they exist because the horse is susceptible to feeling pain and can experience pain.

Moving the current provisions into another section simply does away with the anomaly that they are lumped in with property offences. It is a logical place to have them. It makes no more sense to have these provisions in that segment of the Criminal Code than it does to have a provision dealing with the destruction of a testamentary instrument in sections dealing with homicide.

Senator Andreychuk: You are basically saying that it has been shifted philosophically, and it has absolutely no legal impact.

Mr. Ruby: Take comfort. It is not just I saying it. Roger Tassé, one of the distinguished constitutional scholars says it; Mr. Mosley says it; the Attorney General says it. I do not think there is much doubt about it at all.

Senator Andreychuk: I have one final question. Why would so many eminent researchers, so many practical farmers and trappers feel such great unease in regard to this bill?

Mr. Ruby: I do not know, but I can speculate somewhat. Nobody likes to see their livelihood and the way they do things changed. They are afraid of change. I cannot see the change coming from the law. There are social forces out there — we are part of them — that will affect people's lives and how patterns change in this area. It is a fast-moving area. The law will not do it.

Mr. Buffett: If I may enter the fray for a moment.

SPCAs and humane societies euthanize animals. They will continue to do so. They want the right and the ability to be able to do so. They do not feel that they are at any risk by virtue of Bill C-10B. Veterinarians euthanize animals every day, and you can read for yourself the letter that they directed to Senator Furey. They do not perceive that they are at risk at all.

Senator Andreychuk: Following up on what Senator Baker said, if we could not give them the comfort of section 429 because of the arguments that you have made, what comfort can we give them if we want their support? I believe it is just as important to have people supporting legislation as giving them a legal opinion that they have a defence.

Mr. Ruby: It was totally unnecessary for Parliament to insert the ``P.S., Section 8(3) applies.'' That is the comfort that they should have. If they do not want to look at it, nothing can be done about that. However, you have gone further than any other piece of legislation in the Criminal Code, and you have said notwithstanding that section 8(3) says it applies to all criminal offences, ``PS, it applies here.'' Having done that, what more comfort can people demand? Surely, if they do not understand or will not listen to it, that is the end of it. That is clear. You have gone further than anyone else has gone with any amendment to the Criminal Code.

Senator Buchanan: Certainly over the years, as a politician, as a lawyer, as a premier, I have often heard very favourably of both of you. Mr. Ruby, of course, has been in Nova Scotia on many occasions over the years.

I will not argue or discuss this bill too much with either of you, because you know much more about it than I do. I do not wish to become too involved in the discussion because my wife would shoot me if she thought I was questioning anything about the bill.

I have one question. I am from Nova Scotia and we have a thriving lobster industry worth in excess of $250 million a year. A lady from Halifax who was involved with the animal rights groups — I will not name her — went to a small little village outside Halifax and brought the RCMP with her. She wanted a local, small processor charged with cruelty to animals because he was boiling live lobsters in his little plant in this fishing village outside Halifax. The RCMP, of course, checked it out and dismissed the whole thing. That was the end of that.

My question relates to the fact that there are small processors in Nova Scotia today who are concerned about this bill because of the change in clause 182(1), which refers to ``any other animal that has the capacity to feel pain.'' Should these small processors, primarily, who boil lobster — and all of us boil lobster live — be concerned about this bill? There are people who say that when you put a lobster in a pot of boiling water that lobster suffers great pain. It is subjective, I suspect, but what do you think of the situation?

Mr. Buffett: I will respond to that, if you do not mind. I believe the RCMP would have exactly the same reaction under Bill C-10B as they had in the instance that you mentioned, Senator Buchanan. The people who process and boil lobsters are better positioned under Bill C-10B than they would be under the current legislation, because ``animal'' under the current legislation is not defined.

Under Bill C-10B, lobster, as I understand it, is an invertebrate. It is not a vertebrate. To charge someone with cruelty to animals with regard to a lobster, you would need a well-established body of science that would be able to come into court, and the burden of proof is clearly on the Crown. They are better protected, if at all, than they are currently, because there is clearly a finger pointed at the Crown saying if it is not a vertebrate then you must bring in a body of scientific knowledge that is pretty immense to be able to demonstrate to us that the creature is capable of suffering pain.

I am not a scientist. However, as I have been told, lobsters have a very unsophisticated nervous system and do not experience pain the way humans, horses or a dogs do. I do not know whether that is correct or not, but that is my understanding.

Mr. Ruby: I speak with a timely bias having had lobster bisque last night with my colleague. There is no consensus in the scientific community that lobsters feel pain. Under this legislation, the Crown has the onus of proving beyond a reasonable doubt that a lobster feels pain before they can proceed to prosecute. If there is a doubt about it, there will be an acquittal. There is unlikely to be a prosecution at present based upon what we know.

Second, the third-party prosecution provisions that were recently passed are a huge protection. These were done before a third party could go to a JP, have the charge laid, a summons would be issued and someone would go off to court. It may have been months later before the worry, pain and expense were all over. The Crown would take the position that that would be silly, the Crown cannot prove that lobsters feel pain.

Today, all across this country, you must get before a judge. To do that, a Crown attorney would have to look at the case. That is all done ex parte. A better situation exists now than nine months ago.

Senator Buchanan: I think you are right. Am I at liberty then to tell the processors that if an overzealous prosecutor decides to proceed that Mr. Buffet or Mr. Ruby would come to Nova Scotia to defend them?

Senator Cools: For free.

Mr. Ruby: We have become quite friendly, David and I, and would love to come back together.

Senator Adams: I am a hunter. The only pet I have is a dog. I am still concerned about the clause mentioned by Senator Buchanan about any kind of pain that animals might experience. Aboriginal Canadians are concerned about our rights if we happen to break a law. We could be accused of all kinds of cruelties to animals when we hunt to survive in the North.

In the winter we put our nets into the lake. Sometimes we do not go out for two or three days. Is it possible that the fish suffer during that time? They could be caught in our nets for those two or three days. Is that considered cruelty to animals? If I do not have a hook or a net and I spear fish, is that cruelty to animals?

Sometimes I go out to the sea ice looking for holes, like the Inuit people do, and use dogs to find the hole where the seal comes for air. The seal might be very smart and have four or five holes, and the hunter could be waiting for two or three hours. Finally, when the seal comes to that hole, the hunter is able to kill that seal.

You gentlemen are criminal lawyers. Mr. Buffet said that animal rights really have nothing to do with cruelty to animals. We heard officials last week say that Bill C-10B would be recommended by people who support animal rights, especially the Sierra Club.

I was listening to the radio this morning. People from the Sierra Club get money from the government to present a lobby to the government. It started off over a year ago. They got $150,000. The B.C. government gave them $250,000. The total they received this year was $51 million to lobby the government on Kyoto and the environment. The Criminal Code should protect the people.

This committee has just finished reviewing Bill C-10A, which involves the criminal code amendments dealing with gun control. About 90 per cent of Aboriginal people have guns at home in their communities. I just received a letter from a community the other day. A gentleman wanted to get money from the government to be able to buy a gun case that costs between $400 and $500. People say they have no money for such things. If they do not lock up their guns, they will be considered criminals. Can you explain to us how this will not affect natives with their hunting rights?

The minister spoke to me yesterday in the caucus. I do not know what to believe. As soon as a person breaks the rules of the Criminal Code they are considered a criminal.

Mr. Ruby: Let me begin by saying that you are quite right. As a criminal lawyer in my case in Toronto, I know nothing about the way life is in the North. Take what I say in that context. I approach it with great humility. This is someone else's way of life that I do not fully understand.

What I can say is that having worked for a long time with Aboriginal people, that there is, I know, a profound respect for animal life and a profound respect that entails necessarily the avoidance of unnecessary pain. That is part of everyone's culture of everyone that I have ever worked with. There is not even a question. These people do not think about it because this concept is ingrained. Therefore, I would not look to the native communities of Canada as a place where I would expect to find cruelty. I find someone throwing a cat off a balcony cruel. Those acts are where you will find cruelty and that is what the evidence shows.

Having said that, let us start by saying that on behalf of the International Fund for Animal Welfare every killing of an animal, for food or any other legitimate purpose, causes pain by and large. This is not a pain-free operation. However, what the criminal law prohibits is ``unnecessary'' pain — cruelty, which is different and it must be done wilfully and with a marked departure so there are other protections.

In regard to fishing with nets, as far as I know there is no scientific evidence that fish feel pain. There is no evidence at the moment. Spear fishing, sure, you will not take every fish the first time, but at the same time you want to make sure you get the fish and do not lose the fish so the fish goes off and dies somewhere else.

There is a huge area where there cannot be any cruelty even though you are causing pain and you wish you could avoid the pain, but that very wish is, in my view, the indication that there is no criminal offence being committed here. Therefore, I do not see a problem.

I approach the subject with great humility because I do not understand the way of life fully, but I do not see any problem arising.

Senator Adams: I would like to say one thing here. I live on and off here in Ottawa. You lawyers may be aware of this. Last summer there was a great heat wave in Ottawa. A man was walking with a dog, it was about 40 degrees outside, and all of a sudden the dog died. The man was charged. Are you familiar with that case?

Mr. Ruby: No, I am not familiar with that case.

Senator Adams: It was on the radio. The gentleman was charged with cruelty to his dog by walking it when it was 40 degrees outside.

If that happens with Bill C-10B, how many more people will be charged with cruelty to animals? That was an accident. The dog could have had a heart attack the same as I could. The dog could die with overheat.

Mr. Buffett: I am not familiar with that case, but that case would have had to occur under the existing provisions of the Criminal Code, not under Bill C-10B. That occurred under the existing code.

I would make a point in relation to what one of the other senators said earlier about farmers and others having concerns. My suggestion to you is that if we were to set about the task now of enacting what exists in the current Criminal Code these people would have the same concerns, largely as a result of misinformation that had been made available to them.

However, that is the point that I would make. I am not familiar with the case you are talking about. However, it would have had to be under the existing law, not Bill C-10B. I do not know who brought that case to court or who laid charges. I am unable to respond in that respect.

Senator Adams: Right now, we have bylaws in the community that are established by the local municipal councils. We have rules and bylaws in the community.

At times, you hear the local radio announcer saying that a dog has been picked up. People cannot always pick up their dog right away. They will give us two days to comply. If we do not pick it up on time, the dog is destroyed. If the bill passes, people in the community will have criminal records because of that.

Mr. Buffett: Are you talking about community animal control?

Senator Adams: Local council bylaws.

Mr. Buffett: That goes on all across Canada and it will continue. They will euthanize animals the same way that SPCAs, humane societies and veterinarians do. It is a fact of life. There is an animal overpopulation that has to be dealt with.

Mr. Ruby: The owner of that dog has committed a moral wrong by abandoning it. The owner is morally wrong. It does not become criminal behaviour under Bill C-10B and it was not criminal behaviour under the Criminal Code.

Senator Watt: I am moved by what you said. Categorically, I believe that is the way to go. If you do not know, you do not know.

You made it absolutely clear that we are concerned with Aboriginal people being able to practise their traditional ways, not because they wish to be cruel to the animals, but because that is the way that they have survived to date.

It is the job of enforcement officers — the RCMP or the game wardens — to monitor what is going on. That is the way it should continue, provided the funding is in place to hire those officers.

An Inuit out on the ice can pull a harpooned seal through a very small hole. If the hunter had used a rifle, the seal would have sunk to the bottom. That would be a waste. We should avoid waste in our own technology.

If he were out there doing his job to feed his family, which is the traditional way, he would take the customary precautions. However, it would never cross his mind that the seal being pulled out of the hole could be suffering pain. Therefore, he would not be considered humane to animals. Now, the law enforcement officer has a law to uphold, and so he charges the hunter. Regardless of all the defences there may be, which you talked about, that Inuit person does not have the ability to defend himself.

First of all, this happens far up in the North. If that event happened up in Resolute Bay, it would cost close to $6,000 for the airfare alone, plus there would be the legal costs. If he has no way of defending himself, because he lacks money, then he remains a criminal. He is charged and fails to appear before the court, and the law says that not knowing the law is not an excuse. That is your society.

However, I was moved, and I appreciate the fact that you said that you do not know anything about my culture. To me, this is a very important statement that you have made.

We are dealing with a piece of proposed legislation, and at the same time we are creating a new phenomenon. We are creating a competitor to the human, in a sense. That trend is of great concern to the Aboriginal people, especially the ones living in the high North, the high Arctic and the sub-Arctic, who still use traditional practices to justify that they are doing things in the right way — not to waste and being very cautious.

Are you saying that we should look at that area to determine whether there is an exemption for those people from this law?

Mr. Ruby: I do not believe it is necessary or advisable to have a list of exemptions.

Senator Watt: Why is that?

Mr. Ruby: Let me say why I do not think it is necessary, first of all.

Take the example you posed, of pulling the seal out with a harpoon device.

Senator Watt: That is one example, yes.

Mr. Ruby: That causes some pain. However, it is a method that, traditionally, you have learned is most likely to get you the animal. That is why you use that method. That is not cruelty. It is not. As a matter of law, that is not cruelty.

Senator Watt: I have to prove it, though.

Mr. Ruby: No. The officer should know this and not lay a charge.

Senator Watt: The officer does not always know.

Mr. Ruby: That is not a problem we can solve. We cannot make a law perfect.

Senator Watt: I am talking about harassment. I have experience with law enforcement officers harassing people. That is why we are here.

Mr. Ruby: The second matter is this: If you are pulling the animal while alive away from the hole so that you can get to a safer piece of ice, that is not cruelty either; that is necessary.

Senator Watt: Hold on for a minute. Do you realize what is at the other end of the rope? It is a very sharp point used to harpoon. The harpoon itself penetrates right through the flesh and goes through the other side.

That object at the other end of the rope cannot be pulled out unless you pull the rope all the way through to the other end. Therefore, you are actually wounding the animal. That animal is bleeding.

Mr. Ruby: You are going to kill that animal as soon as it is safe and appropriate to do so.

Senator Watt: Sometimes it takes a while.

Mr. Ruby: It takes some time, but that is not cruelty. None of that is an offence under this bill. None of it, in my view, would have been an offence under the old law.

Senator Watt: However, it does not seem to be in the bill. I have not seen a safety provision for the hunters anywhere. There is nothing stipulated in the bill that indicates that this hunting activity is lawful.

Mr. Ruby: It is not necessary. It really does cover that. It is not unnecessary if you are doing it to protect yourself, to preserve the food, to put yourself in a place where you are safe and can carry out the killing of the animal.

Senator Watt: We should seriously consider adding that to the bill.

Mr. Ruby: The law, in my view, is clear on that.

Senator Watt: We could come up with a two-tier system, one that is good for you and one that is good for us. We also have the right to life under the Constitution.

Mr. Ruby: Absolutely.

Senator Watt: I am not saying this is going to happen. I am talking about the safety net that needs to be in place.

Mr. Ruby: I see no sign in this proposed legislation that it could be abused in the ways that you fear. I just do not see how it can be abused in those ways. I cannot promise that some local Mountie in the middle of nowhere may not take a different view, but I do not see the danger here. I do see any sign that we are setting the animals up as competition to humans in society; we are not trying to create a new human being or a quasi human being. Animals are property, they are animals, nothing more or less, and there is no change in that regard.

Senator Watt: I have just one more point. We have been given assurances in the past also. Aboriginal people have suffered a great deal in the Arctic. When the sealing industry collapsed, animal rights groups put us in a certain position right across the international communities, even affecting Siberia to a certain extent, because we have people up there, too. There was a massive genocide. This is exactly what we are afraid of. We do not want to see that again.

You can say this is safe. However, what is the next step?

Mr. Ruby: I am saying that I do not see the prospect of that happening. It may not be much comfort to you; however, I am comforted by the fact that section 35 of the Constitution protects and preserves Aboriginal rights. It would seem to me that if some of the things that you are worried about come to pass, section 35 would operate to protect the native and Aboriginal groups. That is not a good solution. However, it is a better solution than creating a list of exemptions, because Aboriginals want to be exempted, the Jews want their traditional slaughter to be exempted, the Islamic communities want Halal slaughter to be exempted. Exemptions are not necessary for anybody. We should not make criminal law with a list of exemptions. It would not look like any criminal law we have had before. I hope that is an answer to your question.

Senator Watt: You have your opinion, and I have mine. We respectfully disagree on that.

Senator St. Germain: Thank you for coming, Mr. Ruby, with your delegation.

Senator Andreychuk: Mr. Buffett may not like that.

Senator St. Germain: Mr. Ruby generally controls a lot. I mean that in a nice way, of course.

Mr. Ruby, I was raised as a Metis in Western Canada. I have seen the evolution. What our Inuit friends are speaking of here today must be of genuine concern to everyone.

Inasmuch as you believe that you are being honest and straightforward in saying, ``Look, as an urban lawyer out of Toronto, it is hard for me to relate,'' it is very hard to relate to this.

When I grew up as a child, I trapped with my father. We used leghold traps. Now leghold traps are banned. I saw nothing cruel about what we were doing at that time. It was subsistence. This is the way we lived. We lived off the land to a degree.

These Aboriginal people are more dependent on the land. You spoke about abuses. When they devised the gun registry, Bill C-68, people just like your, sir, with all due respect, said the same thing, that there would not be harassment, except perhaps of the odd individual.

I can tell you there is a member sitting at this table whose family member was charged for hunting under their normal practices. I will not get into the details. However, it was typical abuse of power.

It really scares me, Mr. Ruby, that people like you, who are articulate and brilliant, take on clients like the Kennedy family and others, animal rights groups and whatnot. They come into Canada with billions of dollars. They have raped and pillaged their communities in Boston, and they come up here and tell Charlie Watt and Mr. Adams here exactly how they should live and how they should subsist on the land, when this has been going on for a million years. They sit eating their caviar and driving their Rolls Royces and whatnot out of Boston, and they then hire you. You will take the case, sir, because you have taken most cases that people have brought to you throughout your brilliant legal career. You will come in and you will say, ``Senator Watt and the Inuit people are bad people, they are being cruel to animals.''

If the present bill is not that much different from the old law — I believe that this question was asked, and unfortunately I was at another meeting — why would you even advocate, as a criminal lawyer, going this route? I honestly believe, as these honourable senators do, having grown up in this type of an environment, that they will be victimized. I believe that this is exacerbating the situation rather than improving the plight of the Inuit people.

This government, and the government before, of which I was part, have clearly said, ``We are going to do this for the Native people, and we will do that.'' Do you know what it is? It is doing things to people, not for people.

Mr. Ruby: I feel a bit more comfortable taking you on than I do the other two senators. I will tell you why.

Senator St. Germain: The Whites never accepted the Métis, nor did the Natives, and so the Métis always headed down the middle.

Mr. Ruby: It is because there is a case heading to the Supreme Court that you probably know about pertaining to the Metis right to hunt for food. I was counsel on the case. I helped develop that law. I am proud of developing that law, because the Métis people have a proud and honourable tradition, and a right to hunt, I believe, under section 35 of the Constitution.

Senator Watt: Let us do it again.

Senator St. Germain: That is why I say I recognize your brilliance, sir.

Mr. Ruby: I know the Metis people. I visited the Arctic once on one of those fly-in court trips, and I do not think that trip taught me much about anything other than small planes. I know the Métis people well.

When I was young, I worked in Green Lake, Saskatchewan, for a whole summer, trying to organize with Metis people. I have worked for Metis people ever since. Metis people do not hunt in a cruel way. They do not do it. They are respectful of the animals they take. They take for food. They do not waste. I say that the Metis people have no need to worry about this bill. None. I know what they do. They are honourable and skilled hunters. Hunting has always been a part, not always the whole, as you know, but a part of Metis life and culture. That culture survived. There is no reason to cut it off now.

Senator St. Germain: The only thing that scares me, sir, is that you said that we have to look to section 35 for the protection.

Mr. Ruby: No. I am saying it is an additional thing. I do not believe you have to. The bill fully conforms to every possible right to hunt freely and without cruelty, which is all you really want. You do not want any more than that. No aspect of Metis culture ever declared a right to hunt cruelly. No one ever claimed that.

Having said that, the victimization problem in the far North is real. Our history is not a good history. However, this bill is not the place to make piecemeal exemptions and think that is how we will solve the problem. We solve the problem by making our societies fairer, more open and honourable.

Senator Cools: I would like to welcome the witnesses here today and say that we are blessed to be able to hear their testimony.

There are a couple of issues that I wish to speak to. The first that I would like to articulate relates to the fact that I am happy and encouraged that Mr. Ruby is giving us assurances and that he cites people like Mr. Tassé and Mr. Mosley as support for his assurances. However, I hasten to assure Mr. Ruby in return that we have heard many assurances from individuals over the years, and many of them have come, to my mind, to be unfounded.

I just wished to say to you that we sit in a different position from many, in that honourable senators review a lot of bills, talk to many people from the Department of Justice, and watch with some alarm what is happening once these laws hit the ground.

Mr. Ruby, I would like to say both to you and to Mr. Buffett that we must admit that we are living in an era of social engineering.

There is a galloping attempt to create a culture in this country that views hunting and the use of firearms as negative and wrong. I have no doubt whatsoever about that.

Honourable senators work in a different atmosphere. We hear things at very close quarters from departmental staff. I would just like to say that I do not know exactly where our Aboriginal friends are going on this, but I would say that their concerns are very well-founded. I am sure that the witnesses are well aware that many of us in this place track current developments in the law. Some of us here read a lot of judgments. I read a lot of judgments. I have to tell you that I remain astounded at the developments, and the leaps that the law and the bench and the bar have taken.

I have seen the law and the Supreme Court come to conclusions that, if you look back at the records, were the exact opposite of was intended by Parliament. A few years later, judges and lawyers conclude that ``X'' phrase meant this, when we specifically, in passing those laws, intended it not to mean that.

I do not live in the North. However, I have seen what the courts and the police have done with their zero-tolerance policy on the so-called ``domestic violence'' and the fraudulence that is built up around it; where men are criminalized, harassed and destroyed by virtue of the fact that some individual woman points a finger and says that she was abused, and an entire system shifts into gear to destroy men.

I am sure Mr. Ruby has had a lot of those kinds of cases, because all the defence lawyers —

The Chairman: Senator Cools, may I interrupt you for a second? We still do have a long list of senators who want to speak.

Senator Cools: I thought it was at the end. What time are we sitting until?

The Chairman: We sit until 1:30. Could you try and get to the question, please?

Senator Cools: Sure, but that was part of my question. We will get there.

You have to know how I look at life and what I understand.

My question is different. I wish to shift gears a little into another area of this bill, which I believe has not yet been identified. However, it seems as though it is unfolding before us.

I was very struck by what Mr. Buffett said in his response to Senator Buchanan about the lobster industry. In particular, the discussion at the time was on the question of the capacity to feel pain. Mr. Buffett spoke, brilliantly I thought, about the importance of the body of scientific knowledge being called forward to prove that lobsters cannot feel pain. I am very interested in the fact that this particular clause has been drafted in the way that it has. I have been paying considerable attention to it.

The clause I am talking about, obviously, is the definition of an animal. I am sure you know it very well. If I can just throw this in, I believe that it is very important that we bring before us some witnesses who can bring forward the evidence that Mr. Buffett is talking about, that body of scientific knowledge that is used to make a determination about the capacity to feel pain.

However, honourable senators, my question is this: This particular clause says at the end that ``animal'' means a vertebrate and any other animal that has the capacity to feel pain. I wish you to look at that in the context of the issue of abortion, and particularly in the context of late-term abortions, say at seven or eight months. We all know that Canada is probably now the only country in the civilized world that does not have a law to protect unborn and pre- born children.

I wonder if these two very expert minds could look to that clause and tell honourable senators if this protection here, which has been offered for animals, and I am a great respecter of animals, by the way, and come from a family of horse lovers and animal lovers, can also be accorded to pre-born children. In other words, are pre-born children considered other animals that have the capacity to feel pain? This may be new for you; you may not have thought about it. However, I am just putting it out to you.

The reason I have come at this is that, historically, movements to protect animals have always been related to movements to protect children.

Mr. Buffett: I am not sure how to answer your question.

I do not believe this bill addresses the issue that you are talking about at all. It is my belief that this bill does not deal with human beings who have the capacity to feel pain. I do not believe that it deals with foetuses or human life that has not come to fruition. That is not what this bill is intended, in my respectful submission, to deal with at all. The points that you have raised are important ones, and we can have a discussion about them, probably in another venue.

However, there are so many competing interests at play there that are totally different and distinct from what we are dealing with here. I do not know that this is, in my respectful submission, the place to deal with the issue that you are raising.

Senator Cools: I would submit to you that the place to raise any question is the place where the question seems reasonable — this particular articulation, because it says two things, ``other than a human being,'' and the Criminal Code is pretty explicit about what is a human being.

There is also ``the capacity to feel pain.'' It is in the couching of the phrase.

If I were sitting down with the draftsperson, trying to draft a definition of ``animal'' for you, I would certainly have approached it quite differently from this, because this particular definition is terribly, terribly subjective.

Mr. Ruby: There are different ways of doing it. For example, in Alberta, the Animal Protection Act defines ``animal'' negatively, as something that does not include a human being. In Manitoba, the 1996 Animal Care Act defines ``animal'' as ``a non-human living being with a developed nervous system.'' The New Brunswick SPCA act, in its regulations, defines ``animal'' as a ``non-human living being with a developed nervous system.'' All of them have an element of uncertainty in them, an area of judgment. It seems to me that the one we have before us is somewhat better than these; however, you cannot avoid some areas of uncertainty.

Senator Cools: My question, though, is whether unborn children are ``other animals that have the capacity to feel pain.'' They must be animals, you know. They are not amoebas.

Mr. Ruby: I do not want to argue with this. I want to say that I am totally unprepared to answer this question. Someone in another context may wish to think about it.

Senator Cools: I must tell you that when I put that question to the Department of Justice official, he admitted that he had not even thought about it. We may be opening up new ground. People draft things with one set of thoughts in their minds, and another whole set of possibilities unfold. There are people in this country who care very much about the unborn. It is a critical matter.

The Chairman: It is an interesting question. Thank you for raising it, Senator Cools.

Senator Joyal: In reference to proposed section 182(2)(a), which reads as follows: ``causes or, being the owner, permits to be caused unnecessary pain suffering or injury to an animal;'' how would you define ``unnecessary''?

Mr. Buffett: Senator, the best reference I can give you on that is to a decision of Justice Lamer, as he then was, who later became the Chief Justice of Canada, in a case called R v. Ménard, which was a Quebec Court of Appeal decision. That is the highest authority in this country that I know of that has dealt with what constitutes ``unnecessary'' and how one grapples with that.

Senator Joyal: Can you provide us with the substance?

Mr. Buffett: The substance of Ménard is that it is not the degree of pain that is inflicted, but whether it was unnecessary in the context. One can have a great deal of pain that is necessary or a slight degree of pain that is unnecessary. In determining whether it is unnecessary, according to Ménard, one must look to what other options were open and whether they were reasonable. Perhaps economics could enter into the picture. In Ménard, a municipality was euthanizing animals utilizing a carbon monoxide box without a coolant system attached to it. It would have been relatively easy and inexpensive to utilize a coolant so that the carbon monoxide gas was cool when ingested by the animal. Those are the sorts of things that are looked at.

Mr. Ruby: The concept of what is unnecessary, and its ancillary concept of what is necessary, are concepts that the Criminal Code uses regularly in other places. For example, there is an offence of failing to provide someone with the necessities of life. The short answer to the question of what is necessary or, by implication, what is unnecessary, is that it is strictly factual. It is not a concept with which the courts have had difficulty. There is not a significant amount of litigation on whether something is necessary or unnecessary.

Senator Joyal: I am preoccupied by the definition. Later in the bill, in proposed section 182.3(2), the word ``negligently'' is defined. As you said, ``negligence'' is left to the appreciation of the court. What is negligence in one case might not be negligence in another case.

Mr. Ruby: It is fact based.

Senator Joyal: There are facts and appreciation of facts. However, even though that concept in law is very broad and open, the proposal that we are considering defines ``negligence.'' The paragraph reads:

For the purposes of subsection (1), ``negligently'' means departing markedly from the standard of care that a reasonable person would use.

There is a definition there. There are at least parameters for a court to appreciate.

Mr. Ruby: That is also true with the other proposed section, though. If you turn back to proposed section 182.2(1), we see that it is not any unnecessary pain that is criminalized, but only unnecessary pain that is wilfully or recklessly inflicted. ``Wilfully,'' in the criminal law means, as you know, that you intend —

Senator Joyal: Mens rea is present. We know exactly what it means. ``Wilfully'' means that you must be aware; you must be conscious that what you do is according to your intention.

Mr. Ruby: You must intend the actual result, the unnecessary pain. ``Recklessly'' means that you must advert to the risk, at least, of the unnecessary pain and decide nonetheless to run that risk.

Those are the modifiers in that context that provide much the same protection as the definition clause does for negligence in ensuring that it is a marked departure, not just a small departure.

Senator Joyal: The way I understand the definition of ``unnecessary'' is that it involves two concepts; the concept of the objective pursued by the person and the means the person uses. The court would appreciate the objective of hunting, which is a lawful activity in Canada according to a certain number of provincial or municipal regulations, and then would consider the means used.

As much as we share with groups involved in the protection of animals the objective of maintaining decent treatment of animals, there are some ``humane activities'' that are performed by people that are lawful in their objective. One example is scientific research. Last night, we heard from a panel of representatives of that group. As another example, for Aboriginal people, hunting is not only a leisure or recreational activity. As you properly said, it is a constitutional right.

The courts sometimes, in interpreting penal offences, recognize the particular status of Aboriginal peoples. In fact, a famous court in Toronto decided that, with regard to sentencing Aboriginal people, they are in a different class from other Canadians. The Supreme Court has decided that when you sentence an Aboriginal Canadian for an offence that is applicable to all Canadians, you must take into account the social context and so forth. They are in a special class because they are Aboriginal people. They have rights that pre-date our rights as settlers here.

Mr. Ruby: And we have obligations.

Senator Joyal: Yes, we have obligations. We have a fiduciary duty that is much more than just consulting them through documents. I am sure you are well aware of this.

Our concern is to ensure that, in relation to a category of activities dealing with animals, we recognize the high level of benefit accrued to society through research, as well as recognizing the constitutional rights of Aboriginals.

I was influenced in my approach to the definition of ``unnecessary'' by what the Law Reform Commission proposed in 1987, that being that certain activities, by themselves, give a certain colour to the objective, i.e., research, and to the means that are employed. In 1987, the Law Reform Commission recommended that we not exempt a class or group, and I agree with that. I do not think I have heard that kind of blanket exclusion around this table. I am puzzled by this and we are preoccupied with the subject.

On the one hand, we are trying not to derail this proposed legislation. We have shared objectives with the bill. On the other hand, we must be sure that what we are doing is not over and above what we believe is common sense.

Our problem is that it is our duty in this committee to legislate on issues that are sought by a majority of Canadians. On the other hand, we have the responsibility to ensure that we are not hurting some groups of people or putting them in a situation in which they must defend themselves. By putting them in such a situation, we are causing them harm because, although they may win in the end, they will have to go through the court process. As stated in the Sparrow case, we must intrude on their rights as little as possible.

We do not wish to absolve Canadians doing what they want to animals; we agree that is not appropriate. However, we must ensure that we find a way to protect the objectives of the bill and maintain its efficiency. This must be done in such a way as not to cause harm to those with whom we share the overall objective that research is for the benefit of the majority. There will be many kinds of drugs and medicines derived from research. We do not want to shift the onus on Aboriginal people to defend themselves in court, no matter how efficient and good our lawyers are in Canada.

Mr. Ruby: Mr. Buffet is deeply involved in research within his organization.

Mr. Buffett: First of all, ``unnecessary'' is not defined in the current section 446 of the Criminal Code, either. The best comfort I can provide to honourable senators as to what is likely to happen with respect to ``unnecessary'' in Bill C-10B is what has happened in the past with respect to ``unnecessary'' in section 446.

To my knowledge, no research facility has been prosecuted under section 446. I cannot imagine that a legitimate scientific research activity would be prosecuted under the new proposed section. There is no difference. I cannot imagine that anyone wanting to prosecute such a case could disregard the accepted standards of scientific research. Perhaps the best indicia of ``acceptable and appropriate'' would be the CCAC guidelines, which anyone could look to for guidance. Minister McLellan has said in the past that she could not understand how anyone could approach prosecutions without looking at precedents and acceptable practices. Those are the only comments that I can make.

The Canadian Federation of Humane Societies does not rail against scientific research. In fact, it participates vigorously with an organization called the Canadian Council on Animal Care, CCAC, and we have representatives on that body. They significantly value our input and they think that we bring a perspective to the table that is not otherwise present. We cannot be perceived as speaking out against scientific research; we endorse it; and we participate in evaluating it, from an assessment point of view.

The term ``unnecessary'' has worked well under the current section 446. In my respectful submission, there is no reason to believe that it would not work well under Bill C-10B.

Mr. Ruby: I will simply add this: In the area of Aboriginal rights, the Canadian Association for Humane Trapping is in favour of the bill as it stands. That speaks to the point my friend made. We have used this concept for a long time now and it has never caused a problem; it has never produced abusive cases.

Senator Joyal: The Law Reform Commission did not request a blanket exemption, but rather requested that certain types of activities be recognized. How do you respond to that? I am not implying that a scientific researcher or university researcher does whatever he or she wants with an animal. There is a code of conduct that provides for the work ethics among researchers, and there are working standards in research. Those are important elements in such work with animals.

Although the courts have said traditionally that ``unnecessary'' must be appreciated in terms of the ends and the means that are pursued, Senator Andreychuk raised the issue earlier that we are in a world of evolving standards. The proof of that is in this bill before us. This proposed legislation is the result of evolving standards. We share that — we are not opposed to that.

In the context of research, there are lobby groups that would like to ban the use of all animals in any research activity, including genetic research. Mr. Smith is a great defender of that. It is lawful, as long as it remains within the parameters of the laws of Canada.

We are in a world of evolving standards and we want to ensure that we properly recognize that men and women who use animals must do so in respect of standards. There are different grounds for appreciation of animals, and all of those groups must be protected.

Mr. Ruby: The short answer is that it is unnecessary to do that. The history of this law and these concepts shows that there is no problem with slowly evolving and responsible change. There has never been a prosecution of a responsible research project.

Senator Joyal: Yet.

Mr. Ruby: There has never been one in a long history of the same concepts. There has never been a prosecution of Aboriginal traditional practices of hunting or gathering food. There is no reason to expect one now, if we continue to do what we are doing. The concept of ``unnecessary'' seems adequate to allow for responsible change.

The Chairman: I will return to your point, Senator Joyal.

In the ensuing half-hour, we will hear from four or five senators. As promised, we will turn to Senator Joyal's point before moving on.

Senator Cools: Mr. Chairman, I know that our authority to sit ends at 1:30, but it would be nice if we could have five minutes to get our files before we head to the chamber. Perhaps we should stop at 1:25 or thereabouts.

The Chairman: We will make every effort to do so.

Senator Beaudoin: Mr. Ruby, you opened the door some time ago to the question of the constitutionality. If I understood correctly, you said that you have no problem with the bill as it is drafted. We all agree around this table that the question of property does not solve the problem. It is not a question of owning an animal and then we may do anything that is in the bill. This is provincial. On the other hand, you said that the whole bill is built on criminal law, the competence of the Parliament of Canada in the field of criminal law.

Therefore, I do not have any difficulty with that, because each time honourable senators consider an article, the crime is defined. In that sense, I agree with you entirely that the bill is constitutional.

As for the question of the Aboriginal people, I have always taken the attitude that they have four inherent constitutional rights that are enshrined in section 35 of the act of 1982: the right to hunt, the right to fish, the right to trap and the right to harvest. Those four inherent rights, in my opinion, are constitutional. There is no doubt about that, because the Supreme Court was very clear-cut in the cases of R v. Sparrow and R v. Sioui that it is not a privilege. I was stunned when I heard the word ``privilege'' in the House of Commons yesterday. It is an inherent constitutional right and not a privilege at all.

I believe it is possible to have an exemption in criminal law. However, you must have a very good case to achieve that objective. Since honourable senators cannot solve the problem through the concept of property only, and since this bill is criminal law in the making, I do not have any problem as far as the constitutionality is concerned. I believe it is constitutional.

The only matter that I would raise, right at the beginning, is when civil servants obtain some power to prosecute. I agree with you that, if it is only a question of administration of justice, it is legal. However, they cannot go further than that. The guidelines cannot be equivalent to a statutory declaration.

Is that what you also think?

Mr. Ruby: I agree, senator. They cannot amend criminal law through anything they do, whether they call it a guideline, a practice or an instruction. They cannot.

Senator Beaudoin: They told me, ``Oh, it works very well.'' It is not because it works that it is constitutional. It is true.

Mr. Ruby: Very well put.

Senator Beaudoin: I am a bit scandalized that only Parliament may legislate. The ministers may legislate when they make the regulations; however, that power has to be very clearly delegated. I cannot see how public servants might do that. The ministers may do it, yes, because it is within the power of the cabinet. However, I believe the civil servants are another matter.

If we both agree on this, I am personally satisfied.

Senator Baker: I have one point. I wonder whether any of the witnesses might have a comment. Perhaps Mr. Smith may wish to comment on this particular question. Proposed section 182.6 describes a ``law enforcement animal'' as meaning a dog, a horse or any other animal used by a peace officer or public officer in the execution of their duties.

Mr. Ruby: I know where you are going.

Mr. Rick Smith, National Director, International Fund for Animal Welfare: Honourable senators, I must confess to being a biologist, so the only question that has been discussed this morning that I am competent to speak on was the question of what is a vertebrate and what is an invertebrate. Other than that, I believe I will pass to my colleague, Mr. Ruby.

Mr. Ruby: I have not heard of a law enforcement fish, and elephants are not yet indigenous to the Prairies, so I have no idea.

Senator Pearson: What about CIA-trained dolphins?

Senator Cools: The minister should come and tell us what it is, then.

Senator Baker: As a follow-up on that, I wish to ask you what you think would be the reason for the inclusion of a law enforcement animal in this particular piece of proposed legislation. The penalty, I believe, is the same for both, as far as wilful or reckless injury. Do you have any thoughts as to why this clause would be included?

Mr. Ruby: This came forward, I am told by Mr. Smith, at the House committee. It was added because of a perceived need for special protection for animals that were forced to be in dangerous situations as part of their duties and responsibilities.

However, you are quite right in pointing out that it appears to be a duplication of what we already have.

Senator Buchanan: Could I make a comment on that? I believe I know one of the reasons. I am not sure if you are aware of this, but last year, there was a case in Nova Scotia where the RCMP, using a police dog, and I cannot recall exactly the circumstances, had cornered somebody who was involved in a crime. The person deliberately knifed the police dog.

Senator Adams: It was a pipe or something.

Senator Buchanan: That is right. He had a big pipe and a knife. He deliberately killed the dog in front of the police officers. He was charged, of course, with the crime. However, I cannot recall what he was charged with as far as the dog was concerned, but he killed the dog.

Mr. Ruby: It seems clear to me.

Senator Buchanan: There was an uproar in Nova Scotia about it.

Senator Baker: There are other cases. I know about them. There was the case, which is oft-repeated, of two young men caught breaking into a school. They were using a tire iron from a car belonging to one of them. A police officer came by, and his dog chased the two young men. Then another officer came by with another police dog. One of the young men apparently hit the dog. The dog could not perform his duties after that because he was afraid to chase anyone.

In the judgment of the court, in that and other cases, the question was whether the dog was actually a weapon, in and of itself. In magistrate's court in Nova Scotia, that was the determination.

Of course, they were convicted of a crime. I just forget what it was. However, I am wondering whether that is the reason why this clause is there. It obviously is covered under the general provision of 182.2.

Mr. Smith: Senator, I could again enlighten you a little. You may know that law enforcement agencies, and specifically the RCMP division staff representatives association, are very supportive of this bill as is. This amendment came forward at the House committee.

I think it was Mr. Ivan Grose from Oshawa, who has some law enforcement people in his constituency, who brought it forward because he was particularly concerned about it. The people in the committee agreed. This is an example of the kind of amendment we have been supportive of, because we think it does not detract from the bill. It certainly is true that police horses or dogs are put in dangerous situations as a matter of course.

This may be duplicating things, but certainly it was something that the House committee felt strongly about.

The Chairman: There is a special restitution order in the particular clause.

Mr. Ruby: Mr. Buffett and I have put our heads together, and I believe I have an answer. It is there because some of the ingredients that would otherwise apply under the proposed general section are absent, such as the causing of unnecessary pain or injury. It does not have to be unnecessary in this context. The killing does not have to be brutal or vicious, it is just a killing.

They have raised the bar, or more correctly, lowered the bar. Mr. Buffett caught that, and that is what we both believe.

Senator Pearson: I am coming at this matter from a different tack, because the issue has been raised, not only this morning but in other of honourable senators' meetings, of the difference between animals and humans and the change in public attitudes. In some sense, this bill represents and is responding to an evolution in attitudes.

The animal rights movement is not new. I had a grandmother who was an anti-vivisectionist a long time ago. We all felt that she preferred dogs to humans, but that is a different issue. It has been around for a long time. I have lived in countries like India, where certain animals are sacred. To kill a cow in India is blasphemy. It is a very different kind of law.

I believe that in the legends and myths of indigenous people in most countries, animals have spirits and are anthropomorphized, so there is a long tradition of respect for the animals. You made a comment earlier that would I like you to clarify, because I agree that animals and humans are different. This entire bill is about human behaviour; it is not about animal behaviour at all. It is about, I believe, increasingly codifying the norms of being human. You do not treat animals in certain ways, with cruelty and so on. I believe that is what it is about. Would you elaborate on that? It is important that we be clear that we are not giving more rights to animals in this bill, but that we are trying to teach human beings how to behave better.

Mr. Ruby: I do not know if there is much more to say about it. This trend is happening in a lot of other jurisdictions, where humans are re-evaluating their own standards of conduct. The changes here are modest and have to do with making this more serious in terms of the penalty. As Tassé points out in a chart in his opinion paper, these penalties are proportionate to where they ought to be, but are more than they used to be. There used to be modest penalties for this. That is a change. There is a general re-evaluation going on.

No one has changed the basic concepts of our animal cruelty legislation. However, I believe that we are trying to modernize it, in the sense of acknowledging the importance to us of having appropriate standards in this area. I do not believe that the bill does anything more that that.

Senator Pearson: Thank you.

Senator Watt: Once again, I am going to be strictly focusing on animals that are the property of people.

No one I know wants to be deliberately cruel to the animals. However, in your presentation earlier, I felt that you were very convincing when you were talking about animals that belong to people, pets such as cats and dogs.

I believe that people must realize the weakness of your presentation when you begin touching upon effects on farmers and hunters and people of that nature.

The reason I am saying this to you is that I feel that this piece of proposed legislation lacks definition, and perhaps that is because I am from an area of Canada where we consume the animals. I am not talking about dogs, cats or anything of that nature.

In the North, we do tie up our dogs in the summertime. In other words, they are chained. They are only fed on a periodic basis, enough to keep them alive, and we hope that they will remain alive until the fall and winter come around. These are the working animals that the northern people depend on for transportation. That was the way it used to be. Lately, the Ski-Doos have replaced them. However, they are coming back.

It is still very much the practice of the Inuit in the Arctic.

I own 11 working dogs. It costs me plenty of money to keep them alive, and they are tied up during the summertime. Since I travel back and forth to the South to do my job and I cannot be there all the time, I tie them up close to the lakes so they have access to the water. In some cases, that does not happen. I imagine those people would be considered as being very cruel to their own animals, which they rely on in the wintertime.

However, in the summertime, they barely give them water and, at times, they even die of thirst.

If an Inuit person were caught in that scenario, then I would imagine that no excuse of not knowing the law would help. Therefore, those people would be prosecuted, even though it is a traditional practice. Some individual Inuit tend to say, ``Well, I am not going to give you a dog any more because you are not looking after your dogs properly.'' Do you follow what I am saying here?

Mr. Ruby: I follow you.

Senator Watt: Would you care to comment?

Mr. Ruby: It seems to me, senator, that if an Inuit or anyone else deliberately pens an animal in a way that ensures it will die of thirst, that would be prosecutable under this bill and would be prosecutable today.

Senator Watt: It is not deliberate. Do not misunderstand me there. It is a question of having access to the proper drinking facilities, depending on the location.

Let me use another example. In wintertime, they are also tied up because they are quite dangerous, especially when there are a lot of them loose in the community. They are dangerous to both children and adults. Those dogs are tied up also in the wintertime. Before, they used to be loose.

From time to time, they also freeze, because there are no facilities. How do you reconcile that?

Mr. Buffett: It is all going to turn on what is necessary. What may be necessary in the far North may be very different from what is necessary in St. John's, because of the circumstances facing you.

It is like a method of euthanizing an animal. If you are in the wilderness, a method that is going to be acceptable in those circumstances if the animal needs to be euthanized is vastly different from what it is in downtown Toronto, where you have veterinarians and other recourses open to you.

Senator Watt: Mr. Buffett, my point is this: Aboriginals are going to be judged by outsiders, not by our own people.

Mr. Buffett: I believe you will be judged by the circumstances that you are in and what is deemed necessary.

Senator Watt: No. People from the outside who have no understanding whatsoever will judge us on those practices.

Mr. Ruby: All you can say is that the risk of an improper prosecution is no greater now than it was. There is always a possibility that a Mountie or I will not understand and that an injustice will be done. There will never be a guarantee against that. The risk has not increased one whit. It is not a perfect answer, senator, but it is a truthful answer.

Senator St. Germain: Senator Watt spoke about animals and ranches. The horse situation is the same with the Metis and the Indians in the northern parts of provinces, where horses look like they are starving. I discussed this with Mr. Ruby during the adjournment, and I believe it is either one or both of these groups that have challenged the Calgary Stampede over the manner in which their animals are handled.

I own a cattle ranch and we rope calves. It is all part of the process. You have gone out and deliberately attacked the Stampede, and they have been responsible people. I know the people running the Calgary Stampede. Will this proposed legislation exacerbate this situation? You are all strong proponents of this bill.

I believe that this is a traditional aspect of being Western Canadian. You folks come out of Toronto, or Montreal or downtown Vancouver. This is where the impact really hits home. It is just an extension of what Senator Watt is saying. However, it is closer to the urban centres and it is more visible. Inasmuch as the senator's case is genuine, I believe the example in Western Canada is too, sir.

Mr. Ruby: Let me answer you straight up. The International Fund for Animal Welfare is an animal rights organization. We are concerned with the welfare of animals. However, we have never challenged the Calgary Stampede, never, period.

Senator St. Germain: Others have.

Mr. Ruby: We never have. Others may have. I am not in a position to answer for the others. I do not know. We have never done that.

Second, according to the Calgary Herald of October 29, 2002, the Calgary Stampede advises that they are not concerned with this particular bill because their bottom line is the humane treatment of animals. The newspaper quotes Dan Sullivan, speaking for the Calgary Stampede:

We are confident in our practices and we support laws to protect animals.

The Calgary Stampede has no problem with this bill because of the same principle we enunciated before in other contexts. They do not want the right to be cruel; they do not seek that right, as they do not need it.

Senator St. Germain: They never have been.

Mr. Ruby: They never have been prosecuted, as far as we know. I checked it.

Senator St. Germain: They never have been cruel, as far as I am concerned.

Mr. Ruby: As far as I know, they have never been prosecuted.

The Chairman: We have a couple of minutes remaining. We will finish with a comment from Senator Joyal.

Senator Joyal: Mr. Smith, you mentioned that you are a biologist by profession. I would like to quote to you from a statement that you made that was reported in the Ottawa Citizen on November 22 on the approach that the Standing Senate Committee on Legal and Constitutional Affairs, our committee, has decided to follow in reviewing this proposed legislation. You are quoted as stating:

Canadians need to be worried about a Senate that has embarked upon parliamentary piracy. The people's House voted for the bill and passed it over to the Senate, which is holding up the will of the people.

Then you go on to say that it is ``bizarre and likely unconstitutional.''

Were you relying on the sound advice of legal counsel like Mr. Clayton Ruby when you said that this was ``bizarre and unconstitutional''?

Mr. Ruby: He has got you.

Mr. Smith: Yes. Thank you for that question, senator. I have been waiting over two hours for that question. I take the matter very seriously.

Senator Joyal: We do too, sir.

Senator Cools: We do too, very seriously.

Mr. Smith: I understand that. I have to say that I regret those comments. The only thing that I can say in my defence is that at the time, I, like many honourable senators, I believe, was confused at the procedure being embarked upon. I watched the Senate that day. Certainly there were a lot of honourable senators who were confused and irate. The chamber was in some disorder.

The Ottawa Citizen phoned me just a few moments after I witnessed what had happened in the chamber; that is the context in which I made those comments. Certainly, as I have told many senators with whom we have met in anticipation of this bill coming to the Senate, and in anticipation of the bill coming to this committee, we looked forward to and continue to look forward to a thorough, objective assessment of this bill by this body. Certainly I am glad that we have been able to get at some of the important issues today.

Senator Joyal: I wish to add to this. It will be my concluding remark. The people of Canada, when speaking in the Parliament of Canada, speak through an elected part, which is the House of Commons, and through the regional part that is appointed under the Constitution in the other place. It is the will of those two chambers that constitutes the will of the people of Canada.

In equating the will of the people of Canada to the other place, I am, sorry, sir, I believe that you should get advice from your legal counsel. He will tell you that this is not the way that Canada has been operating for the last 137 years.

It has produced substantial legislation to try to reflect the concerns of minority peoples that are not well-addressed in the other place because they do not carry the political clout, the electoral clout that you normally have to have to be able to make your own case.

Mr. Smith: To further clarify, my comments had to do with the procedure being followed, the splitting of Bill C-10 into Bill C-10A and Bill C-10B and the ongoing discussions such as the point of order that we are now seeing in the House of Commons, the procedural questions. My intention was not to impugn the ability of the Senate to objectively assess the content of the proposed legislation itself.

Senator Joyal: As you have seen, since the other part of Bill C-10 has been dealt with, the portion dealing with firearms legislation, this committee has embarked on hearing from all kinds of groups almost every day and having a very thorough dialogue with each of them. They are making a very important contribution to assisting honourable senators in understanding what it is that we are doing. In this place, we are creating offences in the Criminal Code. Honourable senators are not just legislating about the colour of flowers.

We are dealing with the freedom of people. We are dealing with ancestral rights of people. We are dealing with paramount objectives that are supported by the majority of Canadians, and the research and improvement of health care in Canada. We are not trying to amuse ourselves. Honourable senators have other things to do.

People with high profiles such as you, sir, being the president of an important body that honourable senators listen to very carefully when you come before this committee, are not helping Canadians generally to understand what the Parliament of Canada is doing.

Mr. Ruby: We appreciate what you are saying. Let me just say, on behalf of Mr. Buffet and myself, that it has been a wonderful privilege to appear here today and to try to deal with your questions. They have been fabulous questions; they have pushed us both. We have enjoyed it and we are grateful for the opportunity.

Senator Joyal: As we are, sir.

The Chairman: On behalf of the committee, let me thank you gentlemen for your learned and erudite presentations and for your informative discourse in the questioning. You have been very helpful. We thank you.

The committee adjourned.