Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 15 - Evidence for November 9, 2006

OTTAWA, Thursday, November 9, 2006

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-213, to amend the Criminal Code (cruelty to animals), met this day at 10:50 a.m. to give consideration to the bill.

Senator Donald H. Oliver (Chairman) in the chair.


The Chairman: Honourable senators, this is our first meeting in relation to Bill S-213, an act to amend the Criminal Code (cruelty to animals).

The purpose of this bill seems straightforward. It is designed to amend the sections of the Criminal Code of Canada dealing with cruelty to animals to increase the penalties for the offences found there. However, as interested parties know and, more specifically, as many members of this committee know, there has been significant action in this area in the last few years and it is a matter that has become rather controversial.

A number of bills have been introduced in Parliament to update the animal cruelty provisions, which date from the first codification of the Criminal Code in 1892. These bills include Bill C-17 in 1999, Bill C-15 and Bill C-15B, Bill C-10 and Bill C-10B, Bill C-22 and Bill C-50, none of which have received Royal Assent. The latest bill from the House of Commons, Bill C-50, would create a new section in the Criminal Code dealing with animal cruelty, thereby removing this area from the section of the Criminal Code dealing with property.

To begin our work on this bill, I am extremely pleased to welcome our colleague, The Honourable Senator John Bryden from New Brunswick, the sponsor of this bill. Senator Bryden has been involved in the discussions in this matter as a member of this committee in recent years, and he will provide us with the background and overview needed for us to commence our study. He will be followed by officials from the Department of Justice, represented by Donald Piragoff and Joanne Klineberg.

Hon. John G. Bryden, sponsor of the bill: Thank you for allowing me to make this presentation. Just before starting, I will indicate that my presentation and my focus is on this bill, its positives and negatives, if any. You will deal with the history in the manner you wish. I can help by answering some questions, perhaps, but this is not a complicated bill. It is a very humble attempt to make progress. Therefore, forgive me if I concentrate on this bill and what it does.

Honourable senators, Bill S-213 increases the maximum penalties a court may impose for offences under sections 444 to 447 of the Criminal Code, dealing with animal cruelty. Otherwise, these animal cruelty sections of the Code are unchanged. The provisions of these sections that create the offences remain exactly as they exist today and have existed for a number of years, as the chairman pointed out earlier.

In the existing code, all offences are punishable only on summary conviction, that is, up to a $2,000 fine or six months imprisonment, with the exception of one indictable offence that goes way back for poisoning cattle and has a jail sentence of up to five years.

In Bill S-213, every offence can be treated as either an indictable offence punishable by up to five years imprisonment or a summary conviction offence punishable by a fine of up to $10,000 or imprisonment up to 18 months, or both, for most of the serious offences, and imprisonment for two years or a fine of $5,000 for one less serious offence dealing with neglect. This approach has been taken to simplify and to address directly the legitimate outrage of the public and the press that serious pain and suffering by animals is currently punishable only by minimal fines and jail time.

The Senate passed this bill at second reading without a dissenting vote. The government has stated that it would not be bringing in a government bill on cruelty to animals but that it is prepared to support Bill S-213. Many of the significant stakeholders have stated their support for this bill and are prepared to appear before you.

Aboriginal rights under section 35 of the Constitution, protecting traditional hunting, fishing and trapping methods, are unaffected by this bill. Indeed, Aboriginal members of the Senate have participated in this bill's development and are comfortable with it. I am referring to Senator Watt, Senator Gill, Senator Adams, Senator Sibbeston and Senator Lovelace Nicholas. I thank them for their support and assistance. Senator Watt is here and, I am sure, would be prepared to respond if anyone wished to question him.

You should also be aware that there is some opposition to Bill S-213 from some animal rights lobby groups, some humane societies and some individuals.

Honourable senators, if this bill succeeds, it will resolve the most serious deficiency in our law for the protection of animals by providing enforcement officers, prosecutors and the courts with access to penalties that are substantial deterrents to those who would cause unnecessary pain or suffering to animals. This bill does not prevent those who desire the creation of a more ambitious and comprehensive regime from pursuing their goals while the animals themselves are being protected under this bill.

That is the end of my statement, but I want to go on and look at the bill. The notice was short. I do have copies of this summary statement. It is available and can be distributed. I am a witness here and not a senator, so it is legitimate for me to provide it just in English. We can follow it up with a French version afterwards. That is up to the chair.

The Chairman: The witness said he has a statement in only one language. It has not been circulated as of yet.

Senator Joyal: I think we should maintain the same rule, if it is not in both languages. We have heard the presentation and it was translated, but we should not circulate it.

Senator Bryden: That is fine. That is why I asked the question.

Senator Andreychuk: I understood any witness could come before us, make their presentations and file papers, as they wished. The papers would then be translated for circulation. They can be filed.

The Chairman: His request was that it be circulated now in one language.

Senator Bryden: I raised it because I thought it might be convenient. I am fine with it as it is translated. It is a voice- based presentation.

Senator Stratton: Senator Joyal, I agree with you. When we were hearing Bill C-2, we had presentations that were given in one language, filed in one language and distributed in one language. There is flexibility.

Senator Joyal: I do not want to contradict you, Senator Stratton, but when the chair contacted me and asked me if I agreed that documentation be circulated in one language, I said it should be circulated in two languages. When there is translation available, it would be accessible to everybody. That does not prevent the witness from testifying on the basis of the text that they have because, as you said and as the witness said, the translation is provided to every member of the committee and they hear it in his or her language of choice.

Senator Stratton: I am not disagreeing. I am simply saying that recent history has shown otherwise.

Senator Joyal: I think it is an exception that should be looked at.

Senator Bryden: With my senator's hat on, I am perfectly happy to concur with that. I just wanted to put it forward in the event that it would be a convenience.

The Chairman: Senator Bryden, you have the floor.

Senator Bryden: Thank you. I would like you to have a quick look at the bill. Please look at the explanatory notes on the last page. This is the Criminal Code as it exists today.

You will see that except for the first clause, which deals with offences against cattle, which are indictable for five years, as I mentioned earlier, each of these clauses contains an offence punishable on summary conviction only.

The clauses in Bill S-213 cover exactly the offences stated here. I asked the drafters to include this so that it would be readily available, if anyone wanted to check, to say whether or not there is a match between the offences here and the ones I am talking about. You will find they do match.

Bill S-213 looks so much bigger because, while every offence in the existing code was always treated as summary conviction, with the exception of one, we decided to make hybrid offences and so we had to create an option. Everyone who commits an offence under clause 1 is guilty of an indictable offence under (a), and the terms are there, and an offence punishable on summary conviction and liable to a fine not exceeding $10,000. In other words, under each one of the offences that have been created, the penalties that can be imposed are listed. As a result, there are four areas.

The Chairman: Some clauses of your bill have two dark lines by them, such as subclause 1(2). Could you tell us what those are?

Senator Bryden: Those are the additional clauses. In every case, except the transfer of one clause to a place where an indictable offence needed to be added to it, those relate to the changes in the penalties. The lines are indicate the additions.

In a couple of instances, there is a minimum reorganization, because some of the provisions in the existing code do not get changed but, because of the hybrid offence, they fit better in another place. There will be a mark where that has occurred.

However, we were very careful. The law clerks branch was extremely careful in examining the bill to ensure that none of the offences described in this bill are new or changed from what exists in the Criminal Code. The appropriate offences have been added.

Every offence in the existing code is in Bill S-213 and no new or amended offences are included in Bill S-213. It is hard to cross-reference unless you actually sit down and do the numbers, but if you do the numbers, you will find that that statement is exactly correct.

I would like to point out that the punishments for the offences in Bill S-213 are those that were acceptable to all parties during the last attempts by government to amend these Criminal Code sections.

The Chairman: Who were the stakeholders? What parties were agreeable?

Senator Bryden: When the bill came into the Senate, it had gone through any number of stakeholders. There were long hearings, and we can call those up. There were the animal rights lobbyists, the humane society, the cattlemen's association, the Ontario anglers' and hunters' association, the associations dealing with the use of laboratory animals. Everybody participated in those discussions.

I believe I am absolutely correct that in the end we did agree on what the penalties should be. We did have difficulty with what the implications of some of the wording might for the breadth of the decisions and so on. However, the penalties in this bill are the ones that were contained in the last draft of Bill C-50. That is where they came from and they are matched up.

The Chairman: Earlier in your testimony you said that there is some opposition to this bill from the humane societies, animal rights groups and others. Is that opposition in relation to penalties?

Senator Bryden: I do not know. I cannot answer that. My statement was based on the fact that I have been contacted by people who indicate that they oppose the bill. All kinds of people support this position and this bill, but, in fairness, I am aware that others do not. They will have to appear and explain why they do not. I can only defend my own bill.

Senator Joyal: Senator Bryden, thank you for your presentation. As I understand it, there is one slight difference in your bill from the existing sections 444 to 447 of the Criminal Code. You said that in the existing code all offences are punishable only on summary conviction. In your bill every offence can be treated as either an indictable offence or as a summary conviction. Is that correct?

Senator Bryden: That is correct.

Senator Joyal: Was that distinction included in Bill C-50, which we have studied before?

Senator Bryden: Yes.

Senator Joyal: Were the levels of penalties exactly the same as contained in Bill C-50?

Senator Bryden: That is correct.

Senator Joyal: As far as you can remember, when that bill and the previous incarnation of that bill were introduced in the Parliament of Canada, was anyone opposed in principle to the creation of a hybrid offence, which the bill proposed? That is the first question. Second, were representations on the level of penalty included in Bill C-50?

Senator Bryden: As I recall, there was no objection to bringing in the hybrid offences, because they give more flexibility and a greater range of options. To the best of my knowledge, everyone supported that.

I believe I remember that at an earlier stage some groups or persons preferred a higher penalty than five years. They might have wanted 10 years. I was going to say that some would have gone for life, if they could; they wanted greater penalties.

I believe that as we got to the end people put a little water in their wine. Others who were not so concerned about having the high penalties upped theirs, and the result was the numbers that we have.

Senator Joyal: What are the comparable offences in the Criminal Code that are at the level of the penalty that you propose and that were in Bill C-50 before?

There are scales of offences in the Criminal Code that command a certain type of penalty. Can you inform us of other offences in the present Criminal Code that would command a similar kind of penalty, which would either be hybrid or summary?

Senator Bryden: I cannot do that specifically because I was not prepared to deal with that. However, I do remember that in the process of determining what would be an appropriate penalty those issues were canvassed. What the top and the bottom of the range would be for other types of offences, I cannot definitively say today.

Senator Joyal: Maybe we can ask the question of the witnesses from the Department of Justice.

Senator Andreychuk: How did you come to the reasonableness of these fines? Some people say we do not treat the issue seriously enough; others do a comparison, as I think Senator Joyal was. What was your rationale for picking the figures you used?

The Chairman: Picking five years rather than eight years or 10 years?

Senator Bryden: My rationale — and this is somewhat of a copout — is that it had been discussed very thoroughly during the various attempts to amend the code. When we got to Bill C-50 — and even, I believe, the one just before that — there was a sense of resignation around the table, from exhaustion or whatever, and everyone basically said that these levels of offences are satisfactory.

The only thing I am doing with this bill is increasing the penalties. I took the penalties that were the results of seven years of debate and were attached to Bill C-50.

The Chairman: Did you look at other jurisdictions?

Senator Bryden: Not in doing this, but when we were —

The Chairman: I mean for the increased penalties. Did you compare them with other jurisdictions?

Senator Bryden: Yes, that was done in the history this work in the last seven years. The penalties that would be appropriate in other jurisdictions were looked at.

However, for this small bill, I simply made the assumption that that ground has been covered and ploughed over and over and that the numbers and the seriousness of the penalties that were found in Bill C-50 were the best consensus at that time. I did not think I was in a position to suggest something different.

I do not know what else I can tell you. It had been debated many times and people here know that, I think.

Senator Nolin: I was there, as were most of us. Would you say that the penalties were never the centre of our problem when we were looking at all the various incarnations and variations of those bills? We all agreed on increasing the penalties. There were disagreements, but at the end of the day we agreed on what is in front of us.

Senator Bryden: Yes.

Senator Nolin: It is a no-brainer. That was not our concern. We had many problems with the way new infractions were written. We did not have a problem with the intent, but we had a lot of problems with the consequences of what —

Senator Joyal: It would be fair to state, and Senator Nolin and Senator Andreychuk will remember this, that nobody requested us to reduce the proposed penalty. That was for sure. No witnesses or written representations stated that the penalties proposed in the original Bill C-50 were too high.

As you know, in the Criminal Code there is a rationale for the level of penalty. That was the reason for my question to Senator Bryden, so that we will be reminded of the rationale for the choices made originally by the Department of Justice, because essentially what you propose in this bill is what the department had been proposing.

Senator Andreychuk: Others wanted higher penalties. I do not recall whether we heard that by correspondence or in testimony here. However, it was certainly not lower.

Senator Joyal: There is no doubt; I wanted to establish that. We are not looking for something lower than what is proposed here.

If I remember, some groups made the point about higher penalties. However, on the whole they were satisfied with the other aspects of the bill and were ready to compromise on the level of penalty. It happened some time ago.

Clause 2 of Bill S-213 states that the provisions of the bill will come into force on a day or days to be fixed by order of the Governor-in-Council. Do you think it is appropriate to put that in the bill? If we are to replace the present section of the Criminal Code with the level of penalty that you are proposing, I do not see why we should delay the coming into force of this bill.

I understand that with some bills the system has to adjust. There has to be time, for instance, to train the prosecutor, to publish additional information, to make the system aware of the changes and so forth. Then, of course, that leaves the Governor-in-Council the time frame to proclaim the legislation on the basis of the adjustments that need to be made in the system.

However, I do not see the need to delay the coming into force of this bill, because the substance and the purpose of it is to increase the penalties.

Senator Bryden: Senator Joyal, it is interesting that you would raise that. When this bill was being drafted, I was engaged in making sure that the penalties fitted the sections and that all the cross references had been done. I really did not pay a great deal of attention to the fact that there was a proclamation there.

As I got ready for the presentation of Bill S-24, a bill identical to this under the previous government, I realized that it was not only unnecessary but also perhaps presumptuous of me, presenting a private member's bill that will ultimately have to go to the House of Commons and be considered by the government over there, to say in my bill that the Governor-in-Council has an obligation to do something. That is better decided by the government itself.

I think we should consider a simple amendment that would just delete clause 2 so that the bill would come into force upon Royal Assent, which is what normally happens. I have searched my mind and I have talked to other people and there is nothing in this bill that will require a time delay. There is no money to be spent, no new judges to be hired. It simply does what Senator Joyal has indicated: it updates penalties. An email to the courts and the prosecutors will cover that off as well as the Canada Gazette when it happens. I would certainly agree to taking that out and if for some reason the Governor-in-Council needs to do that, they will have an opportunity to deal with that when it goes before the Commons committee.

Senator Joyal: May I come back at the same issue in another way? I do not have the original Bill C-50 in front of me, but do you remember whether there was such a coming into force provision in relation to the penalty or to other sections of the bill?

Senator Bryden: I do not remember but I do have Bill C-50 with me and I will look.

Senator Joyal: I can understand that for Bill C-50 some parts might have been proclaimed at a later date because there was substantial change.

The Chairman: Senator Bryden found it. The wording is identical in Bill C-50.

Senator Bryden: That is probably why that provision is in my bill; it would have been taken from Bill C-50. That provision makes sense in Bill C-50 because there are many substantive changes.

Senator Joyal: Yes. Many fundamental changes to the Criminal Code proposed in Bill C-50 are not included in this bill. I did not see at first if there would be a need to delay the proclamation of this bill.

Senator Milne: Senator Bryden, it may well bear repeating that this bill does nothing but increase the penalties. It stays completely away from all the clauses of the many predecessor bills that this committee went through over and over again and had such enormous problems with.

I believe Bill C-50 included a non-derogation clause and you have not put one into this bill. This may be a question that Senator Watt can answer. Are you concerned that the bill will, in any way, restrict the right of Aboriginal persons to hunt and fish as they have always done?

Senator Bryden: No, I am not, and I would like Senator Watt to speak to it after.

Nothing changes for hunters and fishermen or people who interact with animals. The code that the hunters and fishers and Aboriginals have been working with since 1852 — I believe that is the date you gave — is still in place. Section 35, which protects the Aboriginals' traditional methods of hunting, fishing and trapping, will continue to function just as it does today. We actually developed an amendment to make sure that it was in the bill that section 35 would be respected. Bill C-50 was much bigger than the scope of the animal cruelty sections of the Criminal Code now.

I was hoping not to get into this but the definition of "animal'' added hundreds of thousands of millions of animals to the scope of the Criminal Code. The definition is any vertebrate other than a human being.

Senator Nolin: We do not want to go back to that.

Senator Bryden: The short answer to your question is that this bill does not, in any way, impair Aboriginals' rights under section 35 of the Constitution. I would ask Senator Watt to comment.

The Chairman: Why not put the non-derogation clause in as additional protection?

Senator Bryden: There are two reasons. The Constitution overrides it anyway, and that is what is being lived by now. If we put that clause in, somebody will ask why it is there now, when we did not need it before.

I am hesitant to disturb the bill as it is and the support for this bill as it is drafted. It is supported by the Aboriginals, by many of the stakeholders and by the government. There is no indication that if we start amending this bill it will continue to have the same support that it has now.

We also learned, from the series of bills that came before us over the last seven years, that if one amendment is good, 15 are probably better. However, an amendment is not absolutely necessary here.

Senator Watt: I participated in the original bill, Bill C-50, and as you all know, we had a great deal of difficulty with that. I participated also on the formulation of this new bill that Senator Bryden has brought forward.

I do not see any need for a non-derogation clause at this particular time. I am afraid that if we put it in there for further clarity, we might raise some questions. Let us not put something in there that is not really required at this point. That is all I can say. I am confident that we do not need that. I am not a lawyer, but if you think further clarity is needed, that is your business. My opinion is that you do not need that.

Senator Milne: This bill does not prevent the government, or any government in the future, from bringing in a further animal rights bill if they so desire.

Senator Bryden: This bill deals with a situation that exists right now. When the next bill is put together, it will take time to canvass opinions and do careful research. In the meantime, this will make significant penalties available to the courts as a deterrent. Believe me, it is the lack of a deterrent and the damage and the suffering of the animals that the public is demanding be fixed. Since we can fix that, let us fix it now. If in six months there is a much better regime, so much the better, but if it is six years from now, which happened the last time, at least we will have had this protection for the courts to use.

Senator Nolin: Senator Bryden, I understand, and we all would agree, that we are not seeking perfection. We are trying to accomplish something quickly. Everyone agrees, I am sure, after these seven long years of discussions on this.

I want to go back to an answer you provided to Senator Milne to ensure that we give you a fair reading of the bill. The proposed new section 447.1(1) creates new powers for the courts. Perhaps you should expand on that.

Senator Bryden: This does stand out but it is also available under the existing Criminal Code. The difference between this and Bill C-50 is that the time limit for the prohibition of owning an animal is shorter or it may be longer. Are you referring to proposed paragraph 447.1(1)(a) in the bill? It states:

(a) make an order prohibiting the accused from owning, having the custody or control of or residing in the same premises as an animal or bird during any period that the court considers appropriate but, in the case of a second or subsequent offence, for a minimum of five years...

Senator Nolin: Yes.

Senator Bryden: It is five years. In the old code it is two years. That wording was taken from Bill C-50 and was present in Bill C-22 as well. It ties into the penalties. Is not a new offence but is an additional penalty.

Senator Nolin: I am looking at the Criminal Code, where this does not exist.

Senator Bryden: No. I thought you were referring to something else.

Senator Nolin: That was my point. I know that it was in a previous version of the bill as an intention of government to reorganize that area of the Criminal Code. The courts do not have that power now.

Senator Bryden: That is correct. I thought we were referring to another section. It is in there, even though it is lengthy and descriptive.

Senator Nolin: I wanted to give you the opportunity to provide Senator Milne with the complete answer. The bill does not only look after the penalties but also includes additional authority provided to the courts to deal with the problem.

Senator Bryden: It provides more flexibility to the courts.

Senator Nolin: We had agreed on that as well in the past.

The Chairman: Additionally, in the existing Criminal Code, which I have before me, section 446(5) states:

Where an accused is convicted of an offence under subsection (1), the court may, in addition to any other sentence that may be imposed for the offence, make an order prohibiting the accused from owning or having custody or control of an animal during any period not exceeding two years.

The two-year provision is in the Criminal Code.

Senator Bryden: Bill S-213 has five years and is a little more extensive. That came out of Bill C-50.

The Chairman: The five years or the two years?

Senator Bryden: In the Criminal Code it is two years but in my bill it is five years.

Senator Andreychuk: It is true that Bill S-213 increases the penalties. However, this bill will be on the backdrop of what we have done on all the other bills. It seems that one of our roles is not to divide Canadians but to bring them together. Communities were divided such that hunters, trappers and Aboriginal people had great concerns about the bill in one way and humane societies, animal rights groups and others had great concerns about the treatment of animals. With the various bills that have come before us to address the issue, both sides have become uncertain and nervous. Now, we have Bill S-213, which legally does one thing and does it appropriately. However, expectations are out there.

I had sympathy for the previous government, which was in a great debate, although necessary, between the Senate and the House. Back and forth the bills went. The present government will find itself the recipient of all of that. Have you given thought to the fact that while technically and legally you are only increasing penalties, there is great fear out there, as evidenced by the emails and telephone calls that I am receiving? There is fear on the one side that this is just one measure, and fear still exists in the Aboriginal community about what the government will do. On the other side, there is the fear that government might do nothing and that this is all they will get, resulting in the animals not being protected in the way that some people thought they should be protected.

With your great background, both political and legal, could you tell us how we avoid dividing the community and yet bring resolution to this issue beyond what is available in the bill? It is likely that we will receive the emails and the attacks.

Senator Bryden: Senator Andreychuk, you might have touched on one reason the present government decided not to introduce a bill. One area that would help a great deal to move the larger agenda forward is more direct consultation. You mentioned Aboriginal people. They are comfortable with this bill because the ground has not changed. It is the same and they know what they are dealing with.

There was no direct consultation between government and the Aboriginal community before launching some of those other bills, although some advice was given, I believe. Under the terms of the Constitution, it is a requirement that the Aboriginal community be consulted in detail before anything is done that would affect their traditional hunting, fishing and trapping methods.

As far as I know from my involvement from a rather early stage, that basic consultation did not happen. Similarly, there were other areas where those of us who are interested in this could have engaged our citizens more. Even the last stage of Bill C-50 had examples of what the courts have said is unconstitutional.

If you recall, Bill C-50 contained a provision such that everyone commits an offence who wilfully kills an animal without lawful excuse. All of us went past that. I found out this summer that at least one superior court has indicated that that is a reverse onus and is a violation of the Charter.

The Chairman: What court was that?

Senator Bryden: I have it written down here. This is an annotation that came out of probably not the most recent Criminal Code. It was seen that placing the onus on the accused to prove the legal justification or excuse is unconstitutional as violating section 11(d) of the Charter. The case is R. v. Gamey, 1993, page 117.

I do not want to analyze Bill C-50, but those sorts of things need to be taken care of. We should not be trying to put up shields around people, when in fact they are not real shields at all, and we should not ask them to do things that are unconstitutional. We should be at the stage where the discussion is free flowing and there are no preconceived conditions or pressing deadlines. That is one reason for this bill; in other words, this bill is a basic compromise that says we must get it right before it becomes law. Once it becomes law, we will have it for a long time, as we have already seen.

Let us put this protection in place. Those who consider themselves experts in this area or who are very concerned can then take the time to complete the consultation and research and come forward with a new bill that they have time to make acceptable to the people who interact with animals, the people in humane societies who are legitimately concerned about the welfare of animals and the people trying to promote the movement of animals away from property.

I will give one more example. We talk about moving the section on animal cruelty away from the property section of the Criminal Code. Under our Constitution, matters of civil rights and property are under provincial jurisdiction. What are the implications for that when we decide to create a new part that will take care of cruelty to animals? That is a serious constitutional issue and is worth discussion between the provinces and the federal government.

This bill is not in any way intended to solve all of those issues. I have lived with animals all my life, having been born and brought up on a farm. We need to give what protection we can simply and directly, as quickly as is reasonably possible. That is the intention of this bill.

If we can get this bill through the chamber here, there are people prepared to sponsor it in the House of Commons. There is support in the House of Commons. I am sure there is also opposition. I have a letter here from Mr. Holland —

Senator Nolin: He has his own bill.

Senator Bryden: I think Bill C-50 has been reintroduced. I have a hard enough job making my own case; I do not need to make one for him.

Nevertheless, this is a very modest bill. To some extent, it is a compromise.

The Chairman: Before we conclude, I think all of us received correspondence from people who would like to be potential witnesses. Some of the concerns I have read in the mail we have received have been about such things as stray cats or animals that may be tortured. Does your bill deal with that issue?

Senator Bryden: It does not deal with that issue directly and is not intended to. I may as well put this on the record. This is in the Criminal Code.

The Chairman: Which section are you referring to?

Senator Bryden: This appears under section 444 and 445 of the Code. In the annotation it clearly states that these provisions are designed to protect domesticated and domestic animals and do not apply to stray animals. The words "kept for a lawful purpose'' contemplate a keeper of the animal and a measure of control exercised for that person. There is a reference to a legal case here.

The Chairman: Therefore, stray and wild animals are not included in your bill?

Senator Bryden: No. My opinion from some of my reading is that domestic and domesticated animals have been advanced enough to say animals in the control of persons.

In many instances where cruelty occurs to a stray animal or to a wild animal, it is usually as the result of something that has been done by a person to cause pain and suffering.

Many of those cases have not been successful in prosecution not because the courts would not address them, but because there was a weak spot in the evidence. All of us who have been in court know it is one thing to be aware of who committed a crime, but it is another thing to be able to prove it. This is gradually expanding to be able to look after that.

It is a long jump from what I just read to what we were reaching for in Bill C-50, which was really to expand the universe to include all vertebrates, including wild animals and fish.

One of the things not explored as a result of pressures of time were the implications for industries involved with these animals and expanding the scope of the Criminal Code to that.

From one point of view, it is great because you can charge people or attempt to charge people. However, people who interact with animals as part of their business or recreation must have some comfort that this bill is not open season.

As I say, this discussion could go on for a very long time. I am trying to do the best I can in a short amount of time.

The Chairman: Senator Bryden, on behalf of the committee, I thank you very much for providing the introduction to this important bill. I must say, as I anticipated, your evidence was clear and very much to the point. Your message has been heard. We thank you for taking the time to answer our questions.

Senator Bryden: Thank you for your attention and for hearing me.

The Chairman: I welcome to the Standing Senate Committee on Legal and Constitutional Affairs two officials from the Department of Justice, Mr. Donald Piragoff, Senior Assistant Deputy Minister, and Joanne Klineberg, Counsel, Criminal Law Policy.

We are continuing our study of the private member's bill known as Bill S-213, to amend the Criminal Code, cruelty to animals. We would like to hear your presentation on the bill from the point of view of the Department of Justice.

Donald Piragoff, Senior Assistant Deputy Minister, Department of Justice Canada: We are here today to address Bill S-213, to amend the Criminal Code to increase the maximum penalties for animal cruelty offences.

Bill S-213 amends the four sections of the Criminal Code that set out the various offences of animal cruelty and describes the maximum penalties for those offences. The bill deals with the sentencing provisions for the offences. It does not, as Senator Bryden indicated, create any new offences.

I propose to describe briefly the current regime of animal cruelty offences and then describe how Bill S-213 would amend that regime.

Whereas every province has enacted animal welfare legislation aimed at the prevention of animal cruelty and the relief of animals that are in distress, the Criminal Code provisions on animal cruelty are governed by the general purposes of the criminal law. We try to promote a peaceful society and prevent and punish acts that harm or threaten to harm society and that undermine social values.

Currently, the Criminal Code provides a number of distinct offences in relation to cruelty to animals, some of which are quite specific and others that are generally worded. Sections 444 to 447 describe offences that involve wilful killing, maiming, wounding, injuring or endangering cattle. Section 445 deals with wilfully killing, maiming, wounding, injuring or endangering animals other than cattle that are kept for a lawful purpose.

A general offence of wilfully causing unnecessary pain, suffering or injury to an animal or causing unnecessary pain by failure to exercise reasonable care exists in section 446(1)(a). Engaging in various specific acts, such as baiting an animal, transporting an animal in an unsafe manner, releasing a bird from captivity for the purpose of being shot, exist under section 446, paragraphs (b) to (g). Neglecting to provide adequate food, water, shelter or care for an animal is an offence under section 446(c). Section 447 is a provision that concerns the keeping of a cockpit.

The current sections of the Code on cruelty to animals are largely unchanged from those that were first enacted in the Criminal Code in 1893. A Criminal Code omnibus bill in 1953 reflected one noteworthy change: the offence of causing unnecessary pain, suffering or injury to an animal was added to the code.

Whereas most of the specific offences are drafted in language requiring a proprietary or possessory relationship with the animal, such as requirements that it be kept for a lawful purpose or that the individual be the owner, section 446(1)(a), the generally worded and most frequently charged offence of causing unnecessary pain, suffering or injury to an animal is not limited to kept or owned animals. I believe that addresses one concern raised by a senator earlier this morning.

Another Criminal Code omnibus bill in 1968 introduced the possibility of a sentencing order prohibiting a convicted repeat animal abuser from owning or possessing an animal for up to two years. A few years later, in another omnibus bill, that section was amended to allow for prohibition orders even for first-time offenders.

With respect to maximum available penalties, all offences except those in respect of cattle are summary conviction offences only and carry a maximum of six months in prison, a $2,000 fine or both. Offences in respect of cattle are, however, pure indictable offences and subject to a maximum of five years' imprisonment.

As I mentioned a moment ago, the code also allows a judge to prohibit a convicted offender from owning an animal for up to two years. Prohibition orders, which are aimed primarily at preventing future cruelty towards animals rather than at punishing the offender, are imposed relatively often in animal cruelty cases.

Bill S-213 proposes three changes to the current animal cruelty regime, which I just described. All of these changes are in the nature of penalty enhancements. Each of the changes would respond to an identified concern with the present law. There is, as Senator Bryden indicated, strong agreement across all sectors that the low maximum penalties for cruelty are inadequate, both to denounce animal cruelty as being unacceptable and to punish acts of cruelty when they do occur.

One aspect of Bill S-213 would make all offences hybrid, meaning the prosecution could choose to proceed by way of summary conviction procedure or by way of indictment, depending on the seriousness of the case. It would then separate offences into two categories: one for injuring animals intentionally or recklessly, the second for injuring animals by neglect. That is an important distinction because under traditional criminal law principles, actions that are done knowingly or even with recklessness as to the consequences are treated as more serious than those committed by criminal neglect or by gross inadvertence.

For the new category of offences that require intention or recklessness and also for the offence of causing pain, suffering or injury by failure to exercise reasonable care, the maximum penalty would be increased to five years on indictment and 18 months on summary conviction. For all other offences of negligently causing injury to an animal during transport, abandoning an animal in distress and failing to provide adequate to care to animals, the maximum penalty on indictment is raised to two years. The maximum on summary conviction remains at six months. The separation of offences according to their degree of fault and corresponding differential increase in maximum penalties would be consistent with other types of criminal offences.

A second aspect of Bill S-213 would remove the current two-year maximum cap of an order prohibiting an offender from possessing an animal. This change responds to concerns that have been identified, including by some courts, that a prohibition order of two years fails to adequately prevent future offences.

Third, the proposals would include a new express power for the court to order that a convicted offender pay reasonable compensation to an animal welfare agency or an individual who provided care to the animal in respect of which the offender was convicted. Requiring the offender to reimburse those costs will help instill a sense of responsibility in the offender, while at the same time helping welfare agencies recoup the costs of their efforts.

Most provinces and territories have legislation that creates independent agencies, typically called humane societies or SPCAs, to both prevent and educate the public about animal cruelty and also to investigate suspected cases of criminal acts of animal abuse and to lay charges when appropriate. The agencies are typically registered charities that rely on public donations, although some also receive small amounts of money from municipal or provincial governments for some of their services, such as caring for stray animals. Under the applicable provincial legislation, these agencies can recoup the funds associated with carrying for neglected animals from the people responsible for neglecting them. This new measure in Bill S-213 would complement that mechanism and provide an additional mechanism to foster a sense of responsibility in the offender while simultaneously helping these important agencies obtain sufficient funds to carry out their statutorily mandated functions.

Those are the three principal amendments in Bill S-213. Together they constitute a significant improvement to the current law regarding sentencing and one with which all Canadians would agree.

We will be happy to take you questions.

The Chairman: You made an interesting comment about proprietary or possessive rights in relation to animals. You referred us to section 446(1)(a), where the generally worded and most frequently charged offence of causing unnecessary pain, suffering or injury to an animal is not limited to kept or owned animals. You said that that would answer the question I raised about stray animals. If that is the case and this is one of the commonly used sections, could you tell me why it would not be prudent to have in Bill S-213 a non-derogation clause for Aboriginal peoples?

Mr. Piragoff: As Senator Bryden indicated, parts of this law have existed since 1892. I believe this provision was enacted in 1953. It has operated without a derogation clause since 1982 as well.

As the senator indicated, the Constitution applies. A piece of legislation cannot give any stronger protection than the Constitution can give.

The Chairman: Is it the department's opinion that the non-derogation clause is not required, notwithstanding your interpretation of section 447(2)?

Mr. Piragoff: That was the position of the department with respect to the previous bills. I believe derogation clauses were added to Bill C-50 to respond to particular concerns expressed by this committee.

I believe that is why a previous government in the latest Bill C-50 did introduce a clause that touched on these issues to respond to concerns. However, at the time, the minister indicated that strictly legally it was not necessary.

The Chairman: Because of the operation of section 35?

Mr. Piragoff: That is right.

Senator Joyal: I would like to come back to the first point you made in answer to the question asked by our chairman.

You say that stray animals are covered by section 446(1)(a), which states: "wilfully causes unnecessary pain, suffering or injury to an animal or bird.'' The section has an "or.'' In other words, you can be charged under the section if you are the owner of an animal or you have the possession of an animal, or you can be charged if you wilfully cause unnecessary pain.

If I understand your interpretation, that is the section of the Criminal Code that allows prosecution of somebody who would be wilfully causing unnecessary pain to an animal that, for instance, he happened to find in a forest or a public place and of which he is not the owner. Am I right?

Mr. Piragoff: Yes, senator. There are two parts to (a), as you indicated. One part of that provision is a general provision talking about wilfully causing unnecessary pain. The other part of the provision — and it may be clearer in the French version — says that if you are the owner, you also have an obligation not to wilfully permit to be caused. You have a higher obligation as an owner.

Clearly, this provision captures those individuals who, for example, find a dog on the street and hurt it. The dog might be a stray or the neighbour's dog. This covers it equally. It covers harming your neighbour's dog or harming a dog on the street. It is the wilful infliction of unnecessary pain, suffering or injury to an animal, irrespective of whether the animal is owned or not and irrespective of whether you know it is owned.

Senator Joyal: If I understand your interpretation, the preoccupation that has been expressed by concerned groups is over the fact that stray animals were not covered by the Criminal Code. That is not the right interpretation of the Criminal Code as it stands now; is that correct?

Mr. Piragoff: That is correct with respect to this particular offence. Other offences, in section 445.1, for example, have limitations that make it clear that they are talking about kept animals. They are specific offences dealing with kept animals.

Senator Joyal: The overall provision is section 446(1)(a), which is the general application to cover the case where a person would be causing pain just for the sake of causing pain. It is not because the person has bought the animal or has been charged with the responsibility of keeping the animal and so forth. Let us take the usual case we have seen: somebody goes on the street, picks up a cat or a wandering dog and takes them home and does not feed them or treats them unreasonably. Those cases would be covered by 446(1)(a).

Mr. Piragoff: Yes, gratuitous violence and causing unnecessary pain.

Senator Joyal: In my reading, in section 446(1)(a), which says "wilfully causes,'' word "wilfully'' would imply mens rea, that is, somebody's being conscious of the act that he or she is committing. The intention has to be proven in court for the person to be found guilty.

Mr. Piragoff: Yes and no, senator. That is the general interpretation of what "wilful'' means. It means "intentionally'' but, as Senator Bryden indicated, there is another provision that applies to this part of the Criminal Code — section 429, I believe — which expands the definition of "wilfulness'' to include recklessness. The word "wilful'' does mean intentional or reckless. The word also appears in other parts of this provision, which has caused some problems because it creates an oxymoron. An example is "wilful neglect.'' That has caused problems because it is basically intentional negligence, and negligence is the absence of intent; it is being very careless.

Senator Joyal: If I understand the interpretation of the code, "recklessness'' implies that a reasonable person put in that position would realize that his or her actions could not be but wilful. You cannot ignore what you are doing.

Mr. Piragoff: Recklessness is higher than simple negligence. You are aware of the risk and you continue to act in any event. Ordinary recklessness can simply be that you ought to have known there was a risk, yet you exercised no due diligence or care whatsoever.

Senator Joyal: That is where the intention is implied. It is implied in the recklessness referred to in section 429. That is why there might be a contradiction between "wilfully'' and "recklessness.''

Joanne Klineberg, Counsel, Criminal Law Policy, Department of Justice Canada: That is it exactly. There is another subsection in the existing law, which is carried through in Senator Bryden's bill, that clarifies what "wilfully'' means in that section. In the current law, section 446(3) states:

For the purpose of proceedings under paragraph (1)(a) or (b), evidence that a person failed to exercise reasonable care of supervision of an animal or a bird thereby causing it pain, suffering, damage or injury is, in the absence of any evidence to the contrary, proof that the pain...was caused or was permitted to be caused wilfully.

In addition, subsection 429(2) says that "wilfully'' includes "recklessly,'' and 446(3) says that wilfulness also is downgraded to negligence on the criminal standard.

Senator Joyal: In other words, the preoccupation expressed by certain groups, whom we have not heard, is, in your opinion, covered by section 446?

Ms. Klineberg: I will echo Mr. Piragoff and say "yes and no,'' to further confuse matters.

Yes, I think that on a plain reading of the statute it is not qualified in any way that the animal has to be owned or kept. I think the plain words clearly imply that the animal can be a wild or a stray animal.

Nonetheless, exceptionally few cases have been decided on this point. All I have been able to find in the jurisprudence is cases that suggest that, as a matter of theory in some other case, this could apply to wild or stray animals.

There was a fairly well known case where a dog was beaten over the head with a baseball bat. The accused was charged under section 445, which is causing injury or death to an animal that is kept for a lawful purpose. The Crown was unable to prove who owned the dog, so the accused was acquitted of that charge, but the court said that the appropriate charge would have been under section 446(1)(a).

While the reading of the section is clear, we cannot say that we have crystal clear and abundant jurisprudence that clarifies that point.

Senator Zimmer: Thank you for your remarks.

I am not a lawyer. I would like further clarification on this. If you do not commit the offence but are a witness to it, whether or not it is your animal, can you be charged under this section of the law?

Mr. Piragoff: The law concerning the obligation of bystanders is quite complex relating to whether you become an aider or abettor. Simply being a bystander to a crime does not render the person an aider or abettor, unless the circumstances are such that simply being a bystander might have helped to prevent the person from escaping; therefore you were intending to aid and assist by your presence.

The famous case in which this was all dealt with was a sexual assault that a number of people watched. The question was whether the fact that these people were standing around had prevented the victim from escaping and whether that was their intent rather than simply happening to be bystanders. Purely being a bystander does not make a person a criminal under the Criminal Code.

Senator Joyal: I want to continue with the question of the scale of penalty included in Bill S-213. Senator Bryden proposed that we give effect to the original proposal of Bill C-50 on those.

Could you give us the rationale for the scale proposed in this bill, which was the one in Bill C-50, so that we understand the context in which the level of fine and imprisonment was established?

Ms. Klineberg: As you are probably aware, this goes back eight years to the time when these numbers were originally examined. At that time, we did a comprehensive comparative analysis of other animal cruelty statutes in other jurisdictions. We did a comparative analysis of similar types of offences in the Criminal Code, and we applied the results of that to the common sentencing scheme in the Criminal Code. There are a very small number of straight summary conviction offences with a maximum penalty of six months. The next maximum penalty is two years; then it goes to five years, 10 years, 14 years and life.

We wanted to create something consistent with where other jurisdictions were going in this area — which is certainly in an upward direction — and also consistent with the sentencing scheme that applies in the code in general.

We found that internationally in the 1990s many other jurisdictions were increasing their penalties for animal cruelty. Five years was a fairly common number. In the United States, criminal law is a state matter, so we had about 50 models to look at there. The maximum sentence was 10 years, in Louisiana. For the most part, they did not go above five years. Some were a little less, but five years was fairly common.

Looking at comparable offences in the Criminal Code, five seemed like the right number. In the five-year range there is public mischief, indignities to a dead body, failing to stop at the scene of an accident, dangerous operation of a vehicle where there is no injury caused, threatening to cause death or bodily harm, simple assault, which is assault that falls short of causing bodily harm. Causing bodily harm has a ten-year maximum, but for simple assault the penalty is five years.

There are relatively few Criminal Code offences with a five-year maximum. Many are well above that, at ten years. Criminal interest rate, which is currently the subject of a bill in the House of Commons, is at five years as well. There is arson by negligence. There is a scattering of different types of offences. Given that we wanted at that time to differentiate between offences that were caused wilfully or recklessly from those caused by criminal neglect and give a higher sentencing to the intentional ones, we thought five years and two years seemed like the best possible fit, with two years for the criminal negligence offences, which is still up from six months.

Senator Joyal: As I understand your explanation, the proposed level of penalty was not linked to the fact that you were creating a new category for animals in the Criminal Code or new offences for the killing of an animal, which was one of the key proposals of the original Bill C-50.

Ms. Klineberg: I do not think it was in any way related to those other choices.

Senator Joyal: In others words, we can sever from Bill C-50 the penalty section and have it on an autonomous basis.

Ms. Klineberg: Absolutely, yes.

Senator Joyal: We are right in approaching the penalties the way we are, and that is not contradicted by the fact that those penalties were linked to another approach to animal cruelty stated in Bill C-50 with the new definition and new categories.

Ms. Klineberg: You are correct.

Senator Joyal: That is an important point that we need to establish if we are to move forward with the bill: it stands on its own in the context of the code as it is now.

Senator Bryden was asked about clause 2 of Bill S-213, which is the enactment provision or the coming into force of the bill. We heard Senator Bryden mention that that clause was in the original Bill C-50, but as I stated and as you yourself stated, Bill C-50 had a group of other clauses that were changed substantially. The clause dealing with coming into force could have had as a basis the major changes, which we do not have in this bill. Would you agree that we do not need to have that provision in this bill?

Mr. Piragoff: The extent of the changes in this bill is not the same as that in previous bills. Accordingly, if all that has been changed is simply a penalty, the justice system may not need as much advance notice to deal with the change.

Senator Joyal: That is my reading of it, but I wanted to get it from you, because you are the person responsible for the application of the changes to the Criminal Code.

Let me ask it in another fashion. Has it happened in the past that mere changes of penalty were submitted to a coming into force provision because they substantially changed something that could not be coped with in the normal way of issuing a circular from Justice Canada to the prosecution and so on, which is the procedure that you normally follow?

Mr. Piragoff: I cannot recall what other bills may or may not have done. The general practice for government bills is to bring them into force on a date fixed by proclamation so that the government has some control as to when it wants to bring it in, or sometimes there is a staggered approach because the provinces responsible for the administration of justice may need some time. On small bills that are not making complex changes, sometimes they come in on royal proclamation.

Senator Joyal: You would think on this one that there would not be major objection if it comes into force on royal proclamation.

Mr. Piragoff: I do not see any legal obstacle to it.

Ms. Klineberg: The way the coming into force provisions are drafted is to some degree a matter of drafting convention, which I think may have changed over time. In recent years, we have tended towards providing the greatest amount of flexibility to the government on government bills, just as a matter of the default position, which resulted in drafting of this nature, even going to the length of saying, "on a day or days fixed by the Governor-in-Council,'' but I do not see that there would be any difficulties in the justice system's accommodating these changes on a quicker basis.

Senator Joyal: The other way to delay the coming into force would be to indicate a time limit; for example, it could be, "no later than such and such a day,'' and then we know exactly when it has come into force. I do not think we need to put that in if you say there is no need to change that.

Mr. Piragoff: There are three ways to do it. You can say nothing, and the default is it comes into force on royal proclamation. You can say this law shall come into force X days after royal proclamation, or you can say that this law comes into force on a day fixed or days to be fixed by proclamation of the Governor-in-Council.

Senator Joyal: I would think that this bill should come into force on its enactment or on Royal Assent, because I do not see any reason for delaying implementation of the bill.

Senator Bryden: Senator Joyal, I used to sell insurance. Once you've got it sold, stop.

Senator Joyal: I think it is fair to —

Senator Stratton: I think he has a point.

The Chairman: Senator Bryden, I used to be a trial lawyer, and we used to say that you have to know when not to ask one more question of the witness. It did happen to me on a couple of occasions.

Senator Andreychuk: I have no questions. I rarely ask Mr. Piragoff questions. Generally, he has the answers, so I do not do it. We have been through this bill many times in a different form, and we do not need to prolong it.

The Chairman: Honourable senators, that brings us to the conclusion of today's hearing. On behalf of the committee, Mr. Piragoff and Ms. Klineberg, thank you for coming. You have elucidated for us some of the old code and how it applies to this new bill, and we thank you for your assistance.

The committee adjourned.