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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 33, Evidence - June 18, 2015


OTTAWA, Thursday, June 18, 2015

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-35, An Act to amend the Criminal Code (law enforcement animals, military animals and service animals), met this day at 10:30 a.m. to give consideration to the bill.

Senator Bob Runciman (Chair) in the chair.

[English]

The Chair: Good day and welcome colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs. We are meeting today to continue on our study of Bill C-35, An Act to amend the Criminal Code (law enforcement animals, military animals and service animals).

For our first panel today, we welcome from the Canadian Federation of Humane Societies, Barbara Cartwright, Chief Executive Officer; from the Canadian Police Canine Association, Stephen Kaye, President; and from the Canadian National Institute for the Blind, Diane Bergeron, Executive Director, Strategic Relations and Engagement.

You each have five minutes for opening statements. We will begin with Ms. Cartwright, followed by Mr. Kaye and finally Ms. Bergeron.

Barbara Cartwright, Chief Executive Officer, Canadian Federation of Humane Societies: Thank you for inviting me to appear as a witness before the Standing Senate Committee on Legal and Constitutional Affairs. I want to start by thanking you for your attention on this important matter and for all of your hard work on behalf of Canadians.

My name is Barbara Cartwright, Chief Executive Officer of the Canadian Federation of Humane Societies. I'm appearing before you today to bring the support of humane societies and SPCAs from across the country in support of Bill C-35, An Act to amend the Criminal Code (law enforcement animals, military animals and service animals).

The Canadian Federation of Humane Societies is the national organization that represents humane societies and SPCAs, the very organizations that Canadians depend upon to care for the abused and abandoned animals in our communities, but also to enforce the law, to provide humane education and to celebrate the human-animal bond.

The federation represents 51 diverse members from all 10 provinces and two of our territories, along with their millions of individual supporters. The CFHS represents the largest SPCA in North America, the British Columbia SPCA, which has 37 branches across the province. We also represent some of the smallest SPCAs in the country, including Happy Valley-Goose Bay SPCA located on the central coast of Labrador, the Northwest Territories SPCA in Yellowknife, and Charlotte County SPCA in St. Stephen, New Brunswick.

Since we were formed in 1957, the CFHS has worked toward positive progressive change to end animal cruelty, improve animal protection and promote the humane treatment of all animals.

We were founded by four key individuals, and I want to give you some of their background.

Lieutenant-Colonel Taylor, the then President of the Ottawa Humane Society, was a founder.

Gord Gunn was the Honorary Secretary of the Ottawa Humane Society who, as a soldier in World War I, witnessed the suffering of war horses and developed a keen interest in preventing cruelty to animals and protecting those animals that worked alongside us.

Dr. Alne Cameron, the veterinary director general for Canada, was another.

And most importantly to this chamber, Senator Frederic McGrand from New Brunswick was one of our founders. Throughout his life, the senator recognized and advocated respect for all life. He believed passionately in the importance of humane education, the humane movement and a life-long commitment to improving the welfare of animals. He understood the vulnerability of animals and of children. Senator McGrand was adamant that human violence and animal abuse could not be separated. He raised awareness about the cruelty link — the connection between those who commit acts of animal cruelty and then escalate to violence towards people. He was the primary driving force behind the Senate of Canada's study on violence. Its report entitled Child at Risk was completed in 1980.

The legacy of Senator McGrand continues today as we discuss Bill C-35, which makes it an offence to willfully and without lawful excuse kill, maim, wound, poison or injure a law enforcement animal, military animal or a service animal.

At the CFHS, we promote the respect and humane treatment of all animals and believe that all animals used by humans should be provided with the highest levels of protection to ensure their health, welfare and safety.

Everyone here who has a companion animal understands the invaluable ways in which animals enrich our lives. The animals covered in Bill C-35 are ones that immeasurably improve the quality of our lives in ways that may not directly touch us individually on a day-to-day basis but impact our society significantly.

Enforcement and military animals have been given the job of protecting us. They provide a multitude of services including, but not limited to, searching out contraband, identifying explosives, finding lost people, crime scene evidence, individual officer protection and crowd control. It is a job that they do willingly and for which they sometimes pay the ultimate sacrifice as in the cases of Quanto or Brigadier, who I know you will hear more about later on today. These animals play a special role in protecting our communities.

Service animals are specifically trained to assist people to enrich their lives by providing valuable medical assistance and allowing for greater independence. These are the animals who guide the blind, signal to the hearing impaired and provide other services to people in need. These animals measurably improve the quality of life for Canadians.

Many of our member societies have enforcement authority and appreciate the relationship between officer and animal. As well, they appreciate that the proposed legislation is aimed at denouncing and deterring the willful harming of these specially trained animals. Bill C-35 honours and recognizes these animals and the important contribution they are making to our society.

In many other jurisdictions, police and military animals are afforded greater protection in recognition of this service to society but also as recognition that an attack on them is also an attack on our rule of law and order.

The CFHS and all its members support the Senate committee in dealing with this important update to the Criminal Code and hope for its swift passage before the election.

Thank you very much.

Stephen Kaye, President, Canadian Police Canine Association: Good morning. Thank you for allowing me the opportunity to appear before you this morning. My name is Stephen Kaye, President of the Canadian Police Canine Association. I represent hundreds of canine law enforcement handlers from across Canada and bring with me this morning their unanimous support for this legislation.

Law enforcement canine teams attend the most dangerous high-risk calls of any division of any service. When a tactical team stacks at a door prior to a dynamic entry, they're frequently led through the abyss through a service dog. Most criminal suspects who flee from police are invariably pursued by a canine tracking team. The lost child in the woods is very often located by a search and rescue dog.

These fearless animals are one of the most of the capable searching and locating tools we in law enforcement have at our disposal and afford officers an enhanced level of safety and security.

It takes roughly four months and $70,000 to prepare a canine team for service. After this, they must train daily to maintain the highest levels of proficiency. These dogs become the human officers' partners and they are a team protecting one another as they serve the communities in which they deploy. Unlike most human partners, they are together always, both on and off duty. It is a marriage of sorts and requires massive commitment.

Given the role service animals play, they bear the brunt of a good deal of violence. Stories of them being punched, kicked, stabbed, shot, submerged and even bitten are all too common. We cannot free them from this danger, just as we are unable to keep peace officers free from injury, harm and death. The memorial service just yesterday for Dan Woodall is a clear reminder of this.

It has been a difficult time for the Edmonton Police Service as they also lost police service dog Quanto in October 2013 when he was stabbed and killed pursuing a criminal suspect. Clearly, the world remains a dangerous place.

To suggest that law enforcement has become dependent on these uniquely specialized creatures is an absolute understatement. They have become as public a servant and ambassador for law enforcement as any human officer or member could ever be. Some people may not care for the police, but a service dog demonstration always draws a crowd and attention.

In my role as a spokesperson for the Canadian Police Canine Association, I interact with thousands of Canadians a year at various events that we host across the country. Just last year, some 10,000 citizens came out in Kelowna to watch these amazing animals compete at our national trials. We expect a similar number this September at our championships in Medicine Hat, Alberta. I'm here to unequivocally tell you that most people I speak with are shocked to learn that there is no legislation protecting service animals.

The vast majority of people I speak with believe that these animals are protected similarly to their human partners. The terms "shocked" or "dumbfounded" would be the most appropriate terminology for their reaction when I tell them that this is not yet the case.

I believe the reason for this is that many Canadians see these animals as their service dogs. This is actually quite accurate. No police officer owns the animal that he or she deploys. They are the property of the municipalities or organizations in which they serve. Certainly we are their handlers, trainers and partners, and we care for them deeply, but they are the property of the taxpayers of the jurisdictions in which they operate.

When a service animal is injured or killed, the outpouring of community grief and support rivals that of the loss of a human officer. Clearly, these animals matter a great deal to the citizens they serve. There are roughly 40 names of service dogs on the national monument in Innisfail, Alberta — all dogs that have lost their lives in the line of duty. When one considers how far more frequently they are assaulted or injured, the need for this legislation takes on new priority.

While I am indeed here today to speak from the perspective of the law enforcement community, it is important to appreciate that this legislation is something that many Canadians also feel needs to exist.

We do everything we can to avoid the loss of life, human or animal. Law enforcement canines are a key factor in how we try to mitigate risk, and they fearlessly lead human officers into harm's way every day somewhere in this country. They are our partners, our friends and our tools. They are an extension of the arm of law enforcement.

On behalf of Canadians, law enforcement dog-handlers and citizens alike, who all admire, respect and benefit from the valuable service and sacrifice that these animals make, I would ask that you please make passing this legislation a priority.

Diane Bergeron, Executive Director, Strategic Relations and Engagement, Canadian National Institute for the Blind: Thanks for the invitation to be here today. I am the Executive Director for Strategic Relations and Engagement for CNIB. I'm here in two capacities. First, as a representative of CNIB, I would like to thank you very much and hope that we can lend our support and encourage you to continue on to pass this bill.

CNIB was established in 1918; we were established in response to war-blinded veterans, people coming back who had served our country and who needed support and needed help. We provide post-vision-loss rehabilitation for Canadians who are blind or partially sighted, and that includes orientation mobility instruction, teaching people how to navigate and be safe in their environment and using white canes.

With that skill set, people can go on to use guide dogs, if they choose. A guide dog isn't right for everybody, but for those people who do use guide dogs, including myself, it is an essential part of our independence, freedom and, most importantly, our safety.

That brings me to the second reason I am here today, and I believe the more important reason. As a blind person who uses a guide dog — and for those who of you who noticed, she's at my feet, and her name is Lucy, because I know that's the next question that is going to come. Lucy has been with me for the last three years and has guided me in many different countries as I travel with work. She has been to Norway, England and to several states in the U.S., as well as across our great country.

I lost my sight when I was 5 years old. My parents discovered I had an eye condition that was degenerative. By the time I was 10, I became a client of CNIB, because I had become what they call "legally blind," which is 10 per cent sight or less. In my thirties, I lost my sight completely. Today, I cannot tell the difference between the lights being on or off. I can't see the sun and I can't see what my cute, fluffy dog looks like, nor can I see my child.

Those things would typically create a problem in a person's life, and they did for me. People who know me today would not have recognized the younger me. They would have said at any time today that I'm a strong-willed and independent person who is out there living her life to the fullest. But, in fact, when I was younger, I had a lack of confidence, self-esteem and self-worth because I did not have independence and didn't know where I was going.

One day, somebody suggested I go get a guide dog, which I did: a beautiful golden retriever named Clyde — Classic Clyde, as he is known. Clyde gave me some something that I couldn't have anywhere else: Clyde gave me my sight back. I couldn't see the things, but Clyde could do it for me.

I'm lucky. I have never had anybody attack me or my dog. I have had dogs attack my dog. I have had dogs that have been attacked and needed to be retired right away, because the dog turned aggressive after being attacked. And although this bill does not cover animal attacks on our dogs, it does cover the other side of it, which is people attacking our dogs. Although I would like to say that never happens, unfortunately it does.

I know of at least one friend of mine who had to retire three dogs after her dogs were attacked by a human who was stalking her. The person would follow her and, of course, because she couldn't see them, she didn't know they were coming. They would reach under the dog, grabbing the dog's feet from the other side and flipping the dog on their back. This would happen so often that the dog eventually could not work anywhere near this person, and the dog would need to retire. Not only is that a waste of money, but it is damaging to the person's and the dog's emotional well-being.

I have also heard of incidences — unfortunately they do happen — where people who are blind or have a disability attack their own dogs. We know this happens in the general public; it happens in our world as well, and it should never happen.

I do believe that people who have service dogs or police officers or people in the Canadian Armed Forces who work with service animals understand this relationship better than most. I know that people who have dogs that are working with the public in the policing area, their work saves many. They're out there saving and working for the general public and protecting our citizens.

My dog is doing but one job: She is protecting me. But the fact that she can protect me, help me and guide me means that I can go out and live a fulfilling life where I get to contribute to my community.

This dog has given me confidence to do many things. As I said, I travel all around the world, and my dog typically goes with me, when laws permit. This dog also helps me to understand that there are adventures in this world that I can do and I don't need to worry about it. I have been skydiving; I driven a race car; I have repelled down the outside of a 29-storey building in Edmonton; on Sunday, I will be running in the Mont-Tremblant Half Ironman with the hopes of crossing the finish line upright; and in August I will be doing the full ironman.

These things can happen for me, not because I'm special, not because I have done something that others can't do, but because I have the confidence to know that I can do anything I choose to do, I just have to have the will to do it. That has come to me through the use of guide dogs for the last 32 years.

I really encourage you to pass this bill and protect those that serve us, whether it be an individual dog, a police dog or an animal in the military who serves our community.

Thank you.

The Chair: Thank you all.

We will begin questions with our committee's deputy chair, Senator Baker.

Senator Baker: Thank you to the three witnesses we have here today for your outstanding presentations, each one of you, and for contributing a different aspect to the necessity to pass this legislation. If I read you all correctly, you want this legislation passed without delay so that it can receive Royal Assent before this Parliament concludes.

I will have a question for the Commander of the Canine/Flight Operations Unit, which we will hear from shortly, I imagine via video conference, but I have an initial question to Mr. Kaye from the Canadian Police Canine Association.

Mr. Kaye, most of us in this committee are familiar with case law. We have noticed over the years the importance of the dog sniff. In recent times, the importance of the dog sniff has come to be judged by the Supreme Court of Canada as a search more valuable to the police than any other investigative technique that they have at their disposal for detecting cocaine shipments and other unlawful drugs under the Controlled Drugs and Substances Act.

Their value to you as enforcement officers is just remarkable. In reading the case law, we notice that there are no examples of a dog sniff proving to be untrue. In other words, in vehicle searches, home searches and container searches, it is so accurate. Would you agree that we have arrived at a point where the dog sniff is one of the most powerful investigative techniques that we have in law enforcement today?

Mr. Kaye: I frequently get a question from all areas of society: How sensitive is a dog's nose? The answer is that I don't have the foggiest idea because there is no scientific instrument more sensitive that I can use to measure the dog's olfactory capability. Used correctly, I have example after example that I can give you of dogs achieving results that machines can't yet duplicate. We may get to that point, but arguably we are not there yet.

Senator Baker: Certainly more value than a human sniff.

Mr. Kaye: Exponentially so.

Senator Baker: And certainly justifying the $70,000 that you have to spend for the training of that dog.

From the three witnesses, is there anything in the legislation that causes you concern, that you perhaps wish wasn't there or that you would be concerned about the interpretation of, in a particular portion of this legislation, that may lead to problems down the road?

Ms. Cartwright: No.

Ms. Bergeron: No, I don't think so.

Mr. Kaye: No, sir.

Senator Baker: Thank you.

Senator McIntyre: Thank you for your presentations. I have a brief question for each of you, so I would invite you to be brief.

Ms. Cartwright, I'm pleased to see that a senator from New Brunswick, Senator McGrand, played a major role in the foundation of your society and, as you indicated, his legacy continues. In your opinion, is there a link between people who commit acts of animal cruelty and people who commit acts of human cruelty?

Ms. Cartwright: Yes, and it is not just an opinion. More and more social science is being done to demonstrate what is commonly called the violence link in that someone who commits an act of animal cruelty can go on to commit an act of human violence. And we often sadly see it in reverse. The act of human violence happens and then we look back through the history and they have been committing heinous acts of animal cruelty as a younger person.

Senator McIntyre: My next question is either for Ms. Bergeron or Mr. Kaye.

In describing killing or injuring certain animals, clause 3 of Bill C-35 states "without lawful excuse, kills, maims, wounds, poisons or injures . . . ," Would the word "injure" include instances where the animal was not physically injured but terrified?

Ms. Bergeron: In my opinion, "injure" would not had just mean physical injury. When you are talking about an animal trained to serve in the way they do, if the dog is damaged, as in the example I gave where the person was flipping the dog over, although the dog was not physically hurt, it could not continue its job and it put that person's life at risk in trying to get away from that person, trying to cross streets and so on.

Senator McIntyre: You are talking about service dog intimidation, for example.

Ms. Bergeron: Yes.

Senator McIntyre: Mr. Kaye, roughly how much would it cost to train service animals?

Mr. Kaye: For a new dog and new handler the course is roughly four months long. If salary is included, it is roughly $70,000.

The cost of a service dog since 9/11 has grown exponentially. Everybody is looking for the same animals.

Senator Joyal: Welcome. I have three sets of questions.

The first is one that you answered, Mr. Kaye, about the cost of bringing an animal up to the level of its capacity to serve. I would ask the same question of Ms. Bergeron, because the definition of "service animal" in the bill states the following:

"service animal" means an animal that is required by a person with a disability for assistance and is certified, in writing, as having been trained by a professional service animal institution to assist a person with a disability.

I would ask the same question that my colleague Senator McIntyre asked of Mr. Kaye. How much does it cost to bring a dog to be certified by a professional service institution to be able to be offered or be available for a person who needs that kind of service?

Ms. Bergeron: It depends on the type of service the dog is providing and the service they need to do. It can be anywhere from $40,000 to $70,000, approximately the same.

It takes about four to six months to train a dog in whichever capacity. Typically the schools have the dogs bred. They go through a puppy raising program and then it is anywhere from four months to six months to train them. They're trained with the person three to four weeks, and then it takes six months to a year for that team to be a good working team. It is about an 18-month to two-year process.

Senator Joyal: So roughly $40,000 to $50,000.

Ms. Bergeron: Yes.

Senator Joyal: The reason I ask that question is that the offence provides that the sentence would bring "an offence punishable on summary conviction and liable to a fine of not more than $10,000."

It seems to me it is within the damages that would be inflicted, because if you have to replace a dog that has been wounded or incapacitated to a point where that dog could not serve anymore in the function for which it was trained, $10,000 is way below what it would cost to replace that dog. Am I right by stating that?

Ms. Bergeron: Yes.

Senator Joyal: In other words, the fine provided in the bill doesn't reflect the seriousness of the damage that the replacement cost would represent.

Ms. Bergeron: Yes.

Senator Joyal: I have a similar question for Ms. Cartwright. Last week the Quebec government, as you are probably aware, announced a bill and I have a copy of it here. The Quebec government announced Bill 54, An Act to improve the legal situation of animals. Are you aware of that bill?

Ms. Cartwright: Yes, I am. I haven't read it, but I have read the media on it.

Senator Joyal: From what I read in the media, they say they are inspired or influenced by the best practices, which they say are from Manitoba, Ontario and British Columbia. Again, it seems that in this bill, for any damages caused to an animal, the maximum would be 18 months of prison.

Are you in a position to comment on the level of fines and prison that there is in Manitoba, Ontario and B.C. in relation to the fine and level of reliability that the bill contains? In other words, are we in sync with the best practices in the provinces of Ontario, Manitoba and British Columbia?

Ms. Cartwright: Unfortunately, I'm not in a position to comment on provincial legislation and the different levels of penalties with regard to them. They are certainly in line with the Criminal Code as far as prison and penalties go.

Senator Joyal: Yes, sections 445 and 446 of the Criminal Code. As I understand, section 445(2)(b) or one that would be added is in parallel with what exists already for the general provisions of animal cruelty that were increased some years ago, you will remember. I think you testified, did you not?

Ms. Cartwright: I did in 2008, yes.

Senator Joyal: You remember very well.

Senator Baker: Excellent testimony.

Senator Joyal: You remember the debate we had at that time on increase of penalties in the Criminal Code.

Ms. Cartwright: Yes.

Senator Joyal: In your opinion, is that level of penalty still meeting the threshold of what you would consider an appropriate signal of the importance of the crime that the sentence is supposed to sanction?

Ms. Cartwright: Yes, I think so. Thanks to the Senate pushing forward to increase those penalties, we recently saw the highest penalty to date in animal cruelty case here in Ottawa, which is Breezy — you may have seen the media — a dog involved in a domestic violence dispute that was beaten, thrown into a dumpster and left for dead. Fortunately, the dog survived thanks to the Ottawa Humane Society. The judge provided two-year jail term to that person and actually cited the updates from Parliament as being the reason that she was able to give the highest penalty. So I do think that it is in line.

Senator Joyal: I'm glad we ended up with a level of sentencing that meets the seriousness of the crime.

Ms. Bergeron, does it happen that a dog can serve with a blind person without having been trained by a professional service animal institution? Does it happen or does that not exist?

Ms. Bergeron: There are people that will train their own dogs. They purchase harnesses through the Internet or make their own, and they train their own dogs.

There are also people who are animal trainers and choose to train dogs and give or sell them to people who have disabilities.

But there is the International Guide Dog Federation and also Assistance Dogs International, and they are accreditation bodies. I always recommend to people that they should think about going to a school that is accredited and has gone through the international accreditation process so they know they're getting a quality service animal.

Senator Joyal: According to the bill, if they are not certified in writing by a professional service animal institution, they would not be covered by the bill, because the definition is pretty clear. It has to be certified in writing as having been trained by a professional service animal institution.

If it is not trained in that context, it would not be protected according to this act; it would fall under the general provision of the other section of the code that I mentioned to Ms. Cartwright.

Ms. Bergeron: Yes.

[Translation]

Senator Dagenais: Thank you very much, Mr. Chair, and I thank our witnesses as well. As Senator Joyal said, I was very happy last week to hear Minister Paradis say that Quebec will be the worst place to try to run a puppy mill, because they are going to be very closely watched. I support the Quebec SPCA; I have always had dogs and I still have some.

As you know, Mr. Kaye, I am a former police officer and it is often said that police officers are on duty 24 hours a day; even when they are not working, they are sometimes forced to intervene. When that happens, we are on duty. So, if you have to get involved in something outside of your working hours with your dog, because for some reason, you are forced to intervene in some incident, do you not think that in those cases Bill C-35 should apply to the dog? I would like to hear your opinion on that.

[English]

Mr. Kaye: I would argue that happens the moment I became active. I can give you an example: a handler of mine, exercising his dog. He is performing a work-related function on his day off. He is not in uniform and is not working, but he is fulfilling an obligation of his employment to exercise his dog. The handler breaks his ankle, and he is covered by the provincial legislation for Workers Compensation; all the insurance practices and policies within our organization kick in to cover him.

I would suggest it is no different. As a peace officer, as you well know, you must intervene if you see something in progress. There are immediate caveats that apply to that. You transform from an off-duty civilian to the member. Whether you have your uniform on or not, you are fulfilling a fiduciary responsibility of your office as a peace officer.

I would argue the coverage kicks in for a member if he has to engage his service dog to mitigate whatever threat or problem he has encountered. That coverage should and would automatically transfer over to the dog.

As I said in my remarks, these dogs are an extension of law enforcement. My service dogs are 20 feet ahead of me, but they're serving me; they're attached to me. I would argue that if the member must act and he must employ his animal to mitigate threats, I would say it is reasonable to say that it would kick in for both.

Senator McInnis: It is a very good point, because the service animal is certainly an extension of the law enforcement officer.

I was just intrigued by something. Does the Canadian Federation of Humane Societies ever get any complaints about sending service animals into harm's way?

Ms. Cartwright: No, we don't. I believe it is similar to what Mr. Kaye was speaking about, which is that Canadians very much value the service, but they want those animals to be afforded the proper protections. The frustrations come from finding out that they aren't covered the same way the police officer they're attending with is covered by the law.

Senator McInnis: The Canadian Service Dog Foundation Inc. — and I'm intrigued by this — states that a psychiatric service dog can be trained to support symptoms of mental illness. In reading about them, I was amazed about some of the things that they are trained to do: psychiatric support, tactile stimulation to disrupt emotional overload, provide deep pressure for calming effect, reducing hyper vigilance, providing a reality check, call 911 — I guess I could comprehend that — speech impairment tests and a whole host of things.

I know these service animals are brilliant, because I had a chocolate lab that did amazing things, but how do you train them to do this? Is that out of the ordinary in terms of cost? I have trouble comprehending how you can get a service animal to be trained to interrupt and to help someone suffering in such a way.

Mr. Kaye: I used to have a saying that I was very happy that my dog couldn't drive or I might be unemployed.

Our training techniques and the ones that I subscribe to and support are praise and motivation. The dogs truly love going to work. Work is the most fun thing they do. For a service dog, a police dog, they win every encounter they have with a human being. They think they're the toughest animal on the planet until someone shoots them down, because we do not train them to be afraid of being shot.

But truly, a statement I make to people is — well, for instance, sir, what was your favourite topic in school?

Senator McInnis: History.

Mr. Kaye: And what did you get the best marks in?

Senator McInnis: Math.

Mr. Kaye: Really? Well, generally speaking, a person's favourite subject is the one they also excel in. We simply apply that theory to the dogs, and they enjoy thoroughly what they do. We can motivate them to do many things but not yet drive, thank goodness.

Senator McInnis: It is amazing.

Mr. Kaye: Absolutely, it is.

Senator Plett: I want to pick up on what Senator Dagenais asked. I raised this yesterday with the minister. The bill says — and we talked about it — that "while it is aiding a law enforcement officer," or, with a military animal, "while it is aiding a member of the Canadian Forces." So it's basically on duty.

Mr. Kaye, you've said that when you're out there exercising your dog, it may be considered to be on duty. However, when it's in the pound, it is probably not considered to be on duty. A horse in pasture is probably not considered to be on duty.

Ms. Cartwright has been quite explicit about the fact that people also attack animals because they are cruel people, not just because it's in the line of duty where somebody has robbed a bank and the dog is chasing them down. They are simply mean and vindictive and will find a horse, possibly because they know it's a service animal, and they will shoot it for that reason.

So when all three of you said that you had no concerns about this bill, I guess I do, because I think that there should be something in this bill — and I support it in its entirety, and we know that it will pass — but I would like to see it a little clearer that if a horse or a dog is shot or attacked simply because of the type of work they do, that should be included in this legislation and maybe by regulation or something we can do later on.

Mr. Kaye, would you like to respond?

Mr. Kaye: Having read through this a number of times, I would hope common sense — which sometimes doesn't seem to be particularly common — would kick in. If someone targets a creature simply because of the function that creature performs, I would hope that the legislation would be interpreted to be applicable in that case.

Obviously, as happens with any legislation, when it's new and it comes out, it's tried, tested and proven. There may be amendments. There may have to be aspects of this that are tweaked to make it more suitable, but I think the foundation of this is very strong. I think the premise is just. While I'm not confident that we can create a perfect, airtight piece of legislation, I think what the government has proposed and brought forward is considerable, and I think we can work with it. Yes, we may have to tweak a few things in the future, but I think the substance of it is very credible.

Senator Plett: Thank you. And as the minister said, don't let perfection get in the way of good legislation. I certainly agree with that, but thank you for your answer.

Ms. Bergeron, your dog, your service animal, is on duty 24 hours a day, 7 days a week, I take it.

Ms. Bergeron: Yes.

Senator Batters: Thank you very much, all of you, for being here and for the work that you do to help vulnerable people on a daily basis and animals as well.

We're going to have a couple of defence lawyers on our next panel, and I'm just going to take a wild stab that at least one of them probably won't be in favour of this legislation, saying that we don't need it, that it's not necessary, that we don't need mandatory minimums, that we don't need consecutive sentences on this. That's my guess of what we might hear.

Mr. Kaye, would you respond to that and tell us why, in light of those objections that we're likely to hear, this legislation is necessary?

And as the law currently stands, do you have any idea of the frequency, as things exist right now, of cruelty to animal charges laid when a law enforcement dog is killed or wounded in the line of duty? What is the normal situation now and why is this legislation needed?

Mr. Kaye: I'll tell you what has happened. I lost my service dog in a shooting in 2001. We started this process roughly a year prior to that, so we've been at this a very long time.

Throughout that time, we've continued to lose service dogs and we've continued to try and get an amendment or an act within the Criminal Code to protect them. As you all well know, it's difficult to do. It takes a lot of support, time and commitment. We haven't really enjoyed much traction with that up until now.

Many provinces — British Columbia, Saskatchewan, Manitoba — have come up with provincial legislation for the protection of service animals as a result of trying to fill the void or the abyss until we could get to this level.

I think the reason it's needed is no service dog puts its hand up and says, "I want to be a policeman." We pick them because of the inherent drives they possess. They don't volunteer. We don't have a list of recruits we tick off. We go out and test dogs and we take the highest driven, most motivated dogs and arguably we put them into service. They're not asked. They're there because of their personality.

It's very different than me, for instance. I wanted to be a policeman, I signed up and I got to pursue what I wanted to do. The dog's not making that choice. It is a living, breathing creature that we're conscripting and putting into service to assist us in assisting our communities and keeping them safe.

To suggest that they don't deserve protection, I think there's a watering down of the significance and importance of law enforcement. I couldn't be more accurate when I describe to you that people are aghast that there is no protection for service animals. The vast majority of people I speak to think the legislation exists and that it's no different if you assault a human police officer or a service dog. I would say 80 per cent of the people believe that's currently the case.

That is the perception of Canadians, and I deal with them all the time. Truly they are shocked, not in a pleasant way, to learn that about these animals, their service dogs. I saw that clearly when my dog was shot and killed. They named a park after him in my community. They still have an annual memorial service to this day for the dog. Someone donated $10,000 anonymously for ballistic vests. When you see that kind of buy-in and drive from your community, that tells me that Canadians are saying we need to have this and it's wrong for us not to have this.

Senator Batters: What about the types of sentences, though, in cases where service animals are killed or severely injured? What is happening with the sentences in those cases? We know about Quanto, but what about other ones?

Mr. Kaye: Ultimately if this was utopia, we'd never lay this charge because some would become aware of the law and say, "I'm going to keep my hands off a service dog no matter what's going on." If we never lay the charge that means this law has been unbelievably successful because we have deterred that activity, but that's not going to happen.

What we will see is a sentencing structure, a norm going across the country, and it will depend on the severity of the incident, obviously. Killing a service dog changed the life of my daughter. It didn't affect just me. It didn't affect just my community. My 21-year-old daughter talks about it to this day. To say what the impact or effect is, it's massive, and hopefully the sentencing will fit the event.

I can't tell you how many different events — a dog being submerged, for instance, in the South Saskatchewan River three or four times by someone trying to get away. Well, it's horrible and to see it was horrible, but it's not as severe as someone sticking a screwdriver through the skull of a dog, which we've also seen. The sentence has to fit the crime.

Senator Baker: Mr. Chairman, I think that the testimony here has been very valuable and very informative. As Officer Kaye pointed out, some provinces have enacted legislation covering this, especially Saskatchewan, as Senator Batters would know. Reading the case law from there, you normally would have three counts, whereas if it were in a province without that legislation you would only have one count. The sentences certainly reflect the way the sentences should be and would be covered under this bill.

I want to congratulate Officer Kaye for his persistence over the years, since the year 2000, to get this legislation into force. Thank you.

Senator McIntyre: Could you briefly elaborate on the service training facilities in Canada? I understand there are accredited and non-accredited facilities. I further understand that the two largest training facilities are located in Alberta and Ontario. Outside those provinces, much of that training occurs at local agencies.

Mr. Kaye: You're completely accurate, sir. You have the RCMP Police Dog Service Training Centre in Innisfail, Alberta. The RCMP has 130 to 150 K-9 teams across the country. They are running training courses there continuously. We have a training facility. Canada Border Services has a training facility in Quebec. The OPP have a large training facility here.

The picture I would like to paint is that it's not so much where the facility is; it's the individuals doing the training. In Canada, we have the Canine Law Enforcement Accreditation Registry. That is the highest national level that a police K-9 trainer can achieve. It's an accreditation process where you must submit your department's policy, your training records, and you must have trained a certain number of dogs to achieve a certain status within the accreditation registry. It's those sorts of organizations, and the Canadian Police Canine Association, that our police trainers are aspiring to achieve or must achieve before they can move into a training role.

Once they do that, it gives someone like myself — for instance, I've repeatedly gone out to Saanich, British Columbia, to perform a validation of that team. The teams may train on their own locally. They prepare the dog to a level that they believe is satisfactory and then they can bring in an outside agency trainer, an accredited trainer, someone who has worked at a number of these facilities, and I can go out and say whether they meet the standard or not. So I'm the person who is able to sign off, to give a written certificate to say that they meet a standard. But the building or location or facility that it occurs in is not an aside, but it's not critical to their certification.

Ms. Bergeron: When it comes to service animals, several organizations across Canada provide training. There are two accredited bodies for guide dogs that I know of in Ontario, one in Quebec, one in Alberta and one in B.C. PADS, the Pacific Assistance Dogs Society, is also certified. I'm sure that there others with assistance dogs that I don't know about, but they are facilities that are accredited through the International Guide Dog Federation or Assistance Dogs International.

Senator Joyal: Ms. Bergeron, how many dogs have been certified or would be presently serving in that capacity? Do you have any idea of the magnitude or the number?

Ms. Bergeron: In Canada?

Senator Joyal: In Canada, yes. Are we talking about 10,000 or 20,000 or 5,000? Do you have any idea of the magnitude?

Ms. Bergeron: I don't because I don't know of all of the various organizations and how many they produce. We're talking PTSD dogs and hearing dogs and all sorts of disabilities.

When it comes to people who use guide dogs, approximately 1 or 2 per cent of people who are blind use guide dogs.

I could certainly check with our staff, but CNIB doesn't always know how many are out there. I couldn't even guess. I just know the estimate was 1 or 2 per cent of people who are blind or partially sighted at this point.

Senator Joyal: What does that 1 per cent represent in terms of people who are registered as being blind under your association?

Ms. Bergeron: Again that's a difficult question because CNIB has a client base, but not everybody who is blind or partially sighted is a client or member of CNIB. Many people get dogs through organizations, and they never set foot in CNIB.

I would have to go check, but I think there are approximately 500,000 people who are blind or partially sighted in Canada. Again, that is an estimate and I would have to go back and look at the statistics to be sure.

Senator Joyal: Officer Kaye, how many dogs would be in service in various police forces in Canada presently?

Mr. Kaye: The rough number would be in the neighbourhood of 500.

Senator Joyal: That's only the dogs. That doesn't include horses. As you know, the bill covers horses also.

Mr. Kaye: Correct. I've never trained horses. I'm allergic, so I can only speak to the dogs.

Senator Joyal: You don't know how many horses might be in service presently in Canada.

Mr. Kaye: I don't know the answer to that, sir.

Senator Joyal: I'm sorry; I don't want to embarrass you. I should embarrass myself for not knowing it.

Mr. Kaye: I don't have a figure for you for horses. I'm sorry.

Senator Plett: Further to that, you've spoken about the number of training facilities you have for service animals or, Officer Kaye, for your dogs. Do we have breeding facilities specific to getting dogs for the forces and, Ms. Bergeron, service animals? Do we have specific breeding facilities for that?

Ms. Bergeron: Yes. The schools that are accredited have their own breeding programs, typically. The International Guide Dog Federation actually has a program where they will exchange frozen sperm internationally to make sure that you don't get in-breeding. Just so you know, it's called the Pupsicle program. The breeding of the dogs, the genetics, is closely monitored to make sure they have the right quality of dogs.

Mr. Kaye: On the law enforcement side, the RCMP has their own breeding program, arguably producing some of the finest German shepherds I've had the opportunity to work with. Winnipeg has its own breeding program, and that would be about it.

The rest of the time we're trying to dealing with breeders, most of them in Europe. We will import dogs from there. There are a number of cost prohibitive factors to running a breeding program, and most organizations are attempting to import their dogs, with the exception of the RCMP. That said, the RCMP do still import a few as well.

Senator Plett: When you import, do you import them right after birth?

Mr. Kaye: No. I guess we'll jump into a little bit of what I do.

You really can't do an effective evaluation of a canine until 42 to 47, 49 days of age if you're trying to measure genetic predisposition to a task. Any time after that, the dog begins to learn behaviour. When you conduct your evaluations after that time period, you could be getting genetic predisposition as well as learned behaviour, so it's tough to separate the two.

Typically, for guidelines, depending on the breed of dog because certain breeds mature at different rates, between a year to 16 months is about the age we're trying to put them into service. If I can get an import dog somewhere in the range to 6 months to 8 months of age, that allows me to control a little bit, environmentally, the stimulation the animal receives, and I can shape behaviours toward tasks.

It's like a computer. If you put in bad programs, somehow you have to extract those, and it will impact the computer. If I can control the hard drive of the dog and input issues that are going to benefit me in the future, the sooner I can do that the more beneficial that is for me.

Senator Plett: Are we meeting demand?

Mr. Kaye: Yes. The cost is going up. The U.S. Department of Homeland Security, for instance, will go to a breeder that I'm trying to deal with with a contract for 80 dogs, and I'm there to look for two. For whatever reason, I don't get the same kind of attention. But it's a struggle we face, and the cost continues to rise.

Senator Batters: Mr. Kaye, when you testified before the House of Commons committee on April 29, 2015, you stated:

The fact of the matter is that a lot of police officers don't lay the cruelty to animal charge, because it's ridiculous. There are a lot of other charges that are laid. There's a belief that not very much is going to happen. They might get a little fine for the animal cruelty charge, or based on a plea bargain, that is going to be the first charge that goes out the door. It will be gone.

Could you just give me a little more information about what the current state is of what happens in these kinds of cases and why this particular law is needed?

Mr. Kaye: I'm not a lawyer and don't play one on TV, but generally speaking in the court process, if matters can be dealt with prior to trial, that's an efficient method of dealing with things. As is sometimes the case, that involves plea bargains, withdrawing charges, et cetera.

Laying a cruelty to animals charge for someone assaulting a service dog just doesn't happen because it's kind of viewed like shoplifting, maybe. In the grand scheme of things, there isn't a lot of weight attached to it. The sentence is going to be insignificant. Here is a terrible pun. It just didn't have the teeth we thought it needed.

I think this sends a message from the government's perspective, on behalf of Canadians, that these dogs matter. They perform a service that we can't duplicate any other way. We need to keep them around, and it's not okay to disrupt their lives, injure them, kill them, et cetera.

The Chair: Thank you to all witnesses for a very interesting and helpful contribution to our deliberations on this legislation.

I want to extend a special thank you to Ms. Bergeron, as well, for your inspirational description of what a service dog has meant for your life. As well, we want to wish you the best of luck in the upcoming Ironman contest.

Ms. Bergeron: Thank you.

The Chair: For our second panel this morning, I welcome, from the Criminal Lawyers' Association, Michael Spratt, Member and Criminal Defence Counsel; representing the Edmonton Police Canine Unit, Troy Carriere, Staff Sergeant, Section Commander of Canine/Flight Operations, who is appearing by video conference from Edmonton; and representing the Canadian Council of Criminal Defence Lawyers, Mr. Brian Hurley, who is himself a criminal defence lawyer and also appearing via video conference from Edmonton.

Before we start, I would like, in particular, to thank Staff Sergeant Carriere for being here. We all know this has been a very difficult week for the Edmonton Police Service following the loss of fellow officer Daniel Woodall. I'm sure I speak for all members of the committee when I express our sincere condolences.

I remind all our witnesses that you each have five minutes for opening statements. We will begin with Mr. Spratt, then I will call on Sergeant Carriere, and finally Mr. Hurley.

Michael Spratt, Member and Criminal Defence Counsel, Criminal Lawyers' Association: Thank you. It is a pleasure to appear before this committee again. I want to start by publicly acknowledging the good work the Senate does and specifically that this committee does.

When I was reflecting on the record in the House of Commons on this bill specifically, it was interesting to note that at that committee, there were no witnesses who testified who opposed this bill or who had a different opinion. That committee heard from the police association, the humane society and the association for the blind. The perspective of those witnesses, of course, is very valuable and very important, but this is a criminal law bill that contains — on one hand, it is very simple; on the other hand, there are complex issues to be dealt with, and there was no evidence from any legal experts or criminologists.

That's a real value this committee brings. The added value it brings to the legislative process needs to be acknowledged. We may not always agree on all issues, and lately we haven't agreed very often, but the record that is created in committees like this is complete, comprehensive and has proven invaluable in the court process going forward. I'd like to thank this committee and the Senate for that, specifically.

Moving on to the bill, we should start by saying the CLA doesn't oppose the creation of a specific offence as seen here. Indeed, the evidence from criminologists has suggested that creating an offence actually does deter crime and does help keep communities safe. The part we disagree with won't come as a surprise — it's the mandatory minimum sentence in the bill. The evidence on that specifically is quite different.

The evidence is compelling that minimum sentences don't deter crime. The Supreme Court has recognized that to some extent in the case of Nur, and I have yet to see any evidence at this committee or others to specifically rebut that point.

We can talk about the practical and constitutional problems of minimum sentences, and I would welcome questions about that. I have told you my concerns about that before, from the practical standpoint and from the constitutional standpoint, and we have the Supreme Court case of Nur, which sheds light on this issue as well.

The real problem is that when we look at the justifications of this bill and why it is being put forward, it causes some concerns with respect to mandatory minimum sentences and things that were said about that. In the house, it was said by the Minister of Justice that this bill punishes those who commit these offences, that it would be a specific and general deterrent, and that it would send a message to offenders and act as a general deterrent. We know that's just not the case through the use of mandatory minimum sentences.

MP Wilks said that it is important not to overlook the fact that this bill will provide a great measure of protection to service animals. Again, that's a message of deterrence. The minimum sentences aren't going to protect service animals because they don't deter the commission of the crime in the first place.

At committee, Minister MacKay said that the penalties of this bill are designed in a way to deter individuals who may be inclined to commit harm or to injure animals — again, the language of deterrence, both specific and general, which the bill as a whole can do, but the minimum sentence provisions in the bill won't accomplish that, and actually draw the risk of unconstitutionality and other practical problems.

When this bill was being drafted and when the committee of the house heard testimony from the Criminal Law Policy Section of the Department of Justice, it is interesting that they noted that in Quanto's case, the offender received 18 months for that specific crime. That might have been higher had he not been charged with other crimes. That was used as a justification or an explanation about how this bill isn't cruel and unusual, because the sentences that are imposed are often higher than six months.

That's the wrong way and a legally incorrect way to look at constitutionality, minimum sentences and the drafting of bills. When we look at cruel and unusual punishments, we have to look at reasonable hypotheticals, not the worst-case offender and worst-fact scenario. We need to look at other reasonable hypotheticals, and we can discuss what those may be.

This is a very broad application of the minimum sentences. It is not just for killing a service animal; it is for injuring, wounding or harming a service animal. That's a broad concept, and that can draw in some very reasonable hypotheticals that may lead to a finding of cruel and unusual punishment.

I will end by speaking generally about some Ottawa examples. Courts have been very harsh — "harsh" is the wrong word. They have imposed very serious sentences, as they should, for crimes against animals. Last year in Ottawa there was a case involving Breezy the dog that was killed. That offender received two years.

Just two weeks ago in Ottawa, an offender was found guilty of killing a rabbit and received nine months in jail.

Courts are treating these offences very seriously. When we look at the downsides involved with mandatory minimum sentences, how courts are dealing with these, I would ask this committee to carefully consider the evidence and the utility of the mandatory minimum sentences.

The Chair: Thank you.

Staff Sergeant Carriere.

Troy Carriere, Staff Sergeant, Section Commander of Canine/Flight Operations, Edmonton Police Canine Unit: I want to thank everybody for the opportunity to address the Senate. I have a prepared statement that I'm going to read. Obviously, I think some people have heard it a little bit before, but I have it prepared and I'll read it now.

I would like to thank you for the opportunity to speak on such an important bill. This is a topic that is near and dear to my heart, and it has certainly impacted me on a personal level. I would like to thank everybody who worked so hard on Bill C-35. I believe that not only law enforcement communities support this initiative, but the Canadian public we all serve also supports this initiative.

On October 7, 2013, police service dog Quanto and his handler, Constable Matt Williamson, were called to the area of 90th Street and 118th Avenue at approximately 5:15 in the morning in regard to a stolen vehicle. A pursuit with a stolen vehicle began through downtown Edmonton. The stolen vehicle struck a median near a service station, was disabled and the driver fled on foot.

The suspect refused to follow police direction to stop. As a result, police service dog Quanto was deployed to apprehend the subject. The subject was engaged by Quanto in a parking lot near RCMP headquarters K Division. During the apprehension, unfortunately Quanto was stabbed several times, and the individual then dropped the knife and was taken into custody by police.

Police service dog Quanto was rushed to an emergency veterinary clinic but sadly died from his wounds at approximately 5:30. The suspect, Paul Vukmanich, 27 years of age, was on a Canada-wide warrant for his arrest for armed robbery, and he was subsequently charged with several weapons offences, resist arrest and, of course, cruelty to animals.

The loss of PSD Quanto was devastating to every member of the Edmonton Police Service Canine Unit, especially Constable Williamson and his young family. Hundreds of emails, phone calls, Facebook posts and other messages over social media were sent to the Edmonton Police Service.

There was an overwhelming response of support from the community, other police and agencies from across Canada. This tragic event struck a public nerve that in my 22 years of policing I had never been witness to.

On February 28, 2014, Vukmanich pled guilty to animal cruelty charges and other offences, including evading police. Crown and defence lawyers recommended a plea deal for the 26 months. The presiding judge specifically said 18 months of this sentence was for the dog's death. While the judge said he wanted to impose more time, he decided that the recommendation that he could overrule it wasn't out of line. The conviction was precedent setting for animal cruelty charges, and I think we spoke about that just recently here.

The Crown had also requested on behalf of the Edmonton Police Service that Vukmanich was ordered to pay $40,000 to police to cover the cost of a new dog and its training. The reality is that over a four-month period of time the cost is closer to $60,000 to $70,000, but the judge said the restitution matter should be handled in a civil court.

As a section commander of the canine unit, this has placed a financial burden on Edmonton Police Service as a result of Vukmanich's actions that day.

The animal cruelty charge was successfully prosecuted in this case, but having participated in this process, I did feel there was a significant gap. The animal cruelty charge is very wide in its scope and was not designed to speak specifically to incidents involving service animals who are poisoned, injured or killed while in execution of their duties by the illegal actions of an individual or individuals, whether intentional or recklessly committed.

Bill C-35, in my opinion, will address the need to have a specific section that addresses such incidents that unfortunately service animals face on an all too common basis. The way the bill is framed is based on common sense and uses plain language. This will allow law enforcement and Crown prosecutors to align the appropriate charge section with the specific incident.

As in all criminal offences there's a wide range on the spectrum as to what the alleged crime was, the circumstances leading up to the incident and what the appropriate punishment should be. The old adage "does the punishment fit the crime" falls into this section.

I believe that Bill C-35 does have the appropriate dual offence sentencing criteria. As an indictable offence, the minimum sentence is appropriate, in my opinion. A significant event would have to take place, such as the death of a police service dog, for a Crown prosecutor to proceed with the indictable offence as stated in proposed paragraph 445.01(2)(a). Therefore, I support the six-month minimum imprisonment term. There has to be a deterrent or some cases of consequence to prevent further offences.

As a summary offence, I feel it is very important that a fine is also an option as there is a significant financial burden to law enforcement. This can be seen not only in the loss of a law enforcement service animal but also in vet bills, loss of time for the canine team, overtime that usually results while a service animal recovers from their injuries. Since the inception of the Edmonton Police Service Canine Unit in 1967, five service dogs have been killed in the line of duty. These range from being struck by a vehicle while pursuing a suspect to being stabbed or gunshots.

Fortunately, these incidents are rare. In the past 10 years we have had two other police service dogs survive after being stabbed, others struck with objects, punched, kicked, pepper sprayed or attacked by other dogs.

Without a doubt, canine teams across Canada have one of the most difficult jobs with the most unknowns and hazards in the communities that they serve. That is also why these dedicated and passionate police officers sign up to do the job. This is why we all train, why they mentally prepare for every possible situation they can think of, and then put into action when it comes time. Regardless of all the training and preparation, some situations that occur, such as the event on October 7, 2013, can shock and devastate the most experienced handler.

I believe we owe it to law enforcement animals to provide a level of protection. They dedicate their lives to protect the communities they serve, and some make the ultimate sacrifice when necessary with total disregard for themselves.

The Chair: I'm going to have to ask you to wrap up, please.

Mr. Carriere: In relation to yesterday, I wanted to take a minute to acknowledge the tragic loss of one of our own members on June 8, 2015. The Edmonton Police Service lost Constable Dan Woodall in the line of duty while executing a search warrant. He was a father, husband, police officer and in the eyes of many a hero. I cannot begin to articulate how deep this loss has cut into the very essence of who we are at the Edmonton Police Service. We may bend but we will never break.

On June 17, 2015, we laid to rest our brother, Constable Woodall. We marched in solidarity as first responders and demonstrated that we still are strong. I thank you for acknowledgment right off the hop of our loss that we had to endure over the last week. I thank you very much.

The Chair: Thank you.

Mr. Hurley.

Brian Hurley, Representative, Canadian Council of Criminal Defence Lawyers: Like my friends, I would like to thank you for allowing me to be present and express defence counsel point of view from Edmonton. To follow up on my friend's last comment, I encountered Constable Woodall on a number of files. He had the highest level of professionalism and was greatly respected by both defence and Crown counsellors. For defence counsel to know an officer is honest and diligent is exceptional. He will be missed by all participants in the criminal justice system.

Before we started, Staff Sergeant Carriere and I had a chance to chat about our love of dogs — my family and our golden retrievers and his family and their dogs. My brother's brother-in-law is a dog handler in Seattle. He has had both retired police dogs and dog school flunkouts as family pets, so I can appreciate the value and firsthand knowledge of how fantastic these animals are.

But like Michael, my concern first and foremost is whether this legislation is necessary. Does it address a need that has arisen in the criminal justice system, or is it addressing a failure of the criminal justice system to either be able to act appropriately or to act appropriately?

I'm mindful of the amendments in 2008 where we changed animal cruelty sections quite significantly. We took a section that had been in existence for 60, 70 years or longer that essentially recognized animals' value and their livestock value. As a person born and raised in Yorkton, Saskatchewan, I can appreciate the livestock value of animals, but society has changed over the last 70 or 80 years, and we increased the penalty for killing any animal to the same as that for livestock.

Quite frankly, ladies and gentlemen, that section has worked. It worked in Quanto's case and it worked in the proper punishment of Paul Vukmanich. I had coffee with the defence counsel who handled the case. There was a joint submission from experienced Crown and experienced defence for 18 months on the dog cruelty charge. That charge was, quite rightly, front and centre in the sentencing.

A very experienced trial judge indicated to defence and Crown that he had no problem with the 18-month sentence for animal cruelty, that it was appropriate. The discussion and sentencing focused on the eight-month consecutive sentence for his other crimes that day, whether or not that was sufficient.

Eventually an experienced trial judge went along with that joint recommendation under the laws as they existed, under the laws that I think both my friend Mr. Spratt and I would suggest work and have worked.

Like my friend Mr. Spratt, I looked at the case law to try and find cases here. Are there instances where this is not being taken seriously? And there is a real lack of cases because this is a very rare occurrence.

I was talking with Staff Sergeant Carriere about our own experiences. Many times when someone flees, the dog is trained to latch on. That obviously could be a challenging situation for both the dog and the individual who has a large German shepherd attached to them. I think quite rightly our system does exercise discretion in charging when and if appropriate.

But we have the Supreme Court of Canada and Nur. We have very serious concerns about mandatory minimums. I appreciate that this is hybrid legislation, but I'm sure, ladies and gentlemen, you have reviewed Nur. You know what the Supreme Court of Canada has said about the possibility of a Crown election and how, quite frankly, the possibility of a Crown election to proceed summarily or by indictment can create significant imbalance in the system and significant unfairness and can, in fact, magnify the potential unconstitutionality of a piece of legislation.

Paul Vukmanich got 18 months. He originally deserved it. The system worked appropriately. Is there need for variance in mandatory minimums? I would suggest no. If we put in mandatory minimums when they're not necessary and the system is functioning properly without them, what do we risk? I would suggest the risk is very real. We risk the unfortunate situation like we have seen in Nur and other cases where the public is left with the question: Why is our Supreme Court of Canada striking down laws? Is Parliament getting it wrong? Are the judges getting it wrong? And then we have the very potentially unseemly discussions in public where the public, quite frankly, loses faith in both the legislature and the judicial system. That's a very real risk, and I think it needs to be avoided unless a law is absolutely necessary, unless there's a proven need, a proven flaw in the system.

In 2008, there was a proven flaw in the system. We didn't have serious enough penalties for the abuse of animals. Over 60, 70, 80 years that law had become outdated. People were placing a much higher value on their pets.

The Chair: Mr. Hurley, could you wrap up, please.

Mr. Hurley: I can close right now by simply restating this is not necessary. The system is functioning appropriately. It risks undermining the system with a very real constitutional challenge to the mandatory minimum here.

The Chair: We will move to questions now, beginning with the deputy chair of the committee, Senator Baker.

Senator Baker: Thank you to the three presenters. You presented very interesting evidence to us in consideration of this bill.

Let me ask a question of Mr. Spratt and Mr. Hurley, both of whom are experienced litigators and who have a number of cases to their records reported in our superior courts and beyond that. Let me take the other side of the argument, because both of you have said that the mandatory minimum sentences in this bill are not justified and are perhaps unconstitutional down the road.

Let me ask you this simple question that a reasonable person would ask. In a normal hearing, you have both sides presenting to a judge their opinion on a sentence, or you could have a joint submission. In determining the sentence, the judge will look at the facts of the case and apply it to existing case law in that jurisdiction, normally — sometimes they go outside the jurisdiction — in arriving at the appropriate sentence.

In law, there's always a maximum sentence of up to a year, up to ten years, up to seven years, whatever.

The mandatory minimum sentences are put in legislation at the lowest level of the reported cases on any particular subject. In the case you mentioned, you said he got 18 months. Well, it is only 6 months in this legislation. The person can go, as you say, under section 12 and say it's cruel and unusual punishment.

Given the fact that the mandatory minimum sentence in this particular case is far down the rail as far as a possible sentence is concerned regarding the offence being tried, then why would it not be logical for the government to have mandatory minimum sentences as long as they are at the much lower end of existing case law?

I don't agree with the argument, but I have to put the argument to you because that's what a reasonable person would put to you.

Mr. Spratt: I think that sort of illustrates the seductive allure of minimum sentences. You can look at the worst cases that are reported and say they deserve more than the minimum sentence.

The problem with minimum sentences and the problem with setting that floor is that for all our best efforts, if we sat around this table for the next number of days and turned our mind to every combination of fact scenario, to include every combination of the circumstances of the offender, the circumstances of the offence and general principles, we would be here for a long time. As wise as everyone around it table is, even the wisest of men can't see all ends. That's why you have to look at the reasonable hypothetical. It takes time, perhaps, for that case to arise.

In a case like this, with the minimum sentences under Bill C-35, you can look at someone who is homeless, is mentally ill, is perhaps breaking into a church to take shelter for a night or is camping out in an alley and is engaged by a police dog, and the dog latches onto their arm. They have mental health issues, and they're living on the street. Perhaps they have a fear of dogs. In the course of trying to get that dog off of them, they take the intentional step of pushing the dog away, which causes the dog to sprain a ligament, break a bone or be injured in some other way short of grievous bodily harm or death. In a situation like that, a sentence of less than six months may be appropriate. That is the reasonable hypothetical. That's what minimum sentences do. There is a whole bunch of other bad things they do, but they undervalue the diversity of experiences that can come before the court, and they punish everyone, that baseline minimal level, when there will be some cases that fall below that line.

Senator McIntyre: Thank you to all three for your presentations.

Mr. Carriere, I understand that you're supporting this bill. As you've indicated, the animal cruelty charge was successfully prosecuted in the Quanto case, but you felt that there was a significant gap. The gap is to the effect that the animal cruelty charge is very wide in its scope and was not designed to speak to specific incidents involving service animals who are poisoned, injured or killed while in the execution of their duties.

Have you had any feedback from the public in that they wanted a bill to deal specifically with this issue? In other words, they wanted the creation of a new specific offence.

Mr. Carriere: I did receive overwhelming feedback when this unfortunate incident occurred.

Through conversations with a variety of people, it was clear to me, in my personal opinion, that this was something people had concerns about, as to why there was not a bill addressing this issue, why there was not a charge addressing this specific incident.

Law enforcement animals are expected do a very dangerous job. That can be a dog or a horse, because we've lost a horse before in Toronto.

When I did talk to the public — and they were very quick to give me feedback — it was a very overwhelming response. People were shocked that there was nothing to deal with this specifically.

The animal cruelty charge, the reason I think we were successful was that we had a senior Crown and a senior defence lawyer, both with high qualifications. I know them both. They did a very good job on this file, but that's because they had the experience and worked through this to look at the totality of this event. It was a very tragic event and there were a lot of circumstances to it. I applaud them both. They did an exceptional job, but this is where as a law enforcement officer and as a Crown prosecutor, it makes it much easier to lay the charge and prosecute a charge when we have a bill, in this instance, or a law in the future that will address this specifically. It makes it easier for us to proceed.

Senator McIntyre: Mr. Hurley and Mr. Spratt, I understand you have issues with mandatory minimum sentences. I'm not going to dwell on that at this moment, but I'd like to draw your attention to the current subsection 429(2) of the Criminal Code and Bill C-35. This question was addressed to Justice officials yesterday, and I'll tell you in a second where they stand.

As you know, subsection 429(2) provides a defence, and the new section in Bill C-35 also provides a defence. Subsection 429(2) provides the defence where the accused proves that he acted with legal justification or excuse and with colour of right. Bill C-35 amends the code to insert the words "wilfully and without lawful excuse." How do the two fit together?

Justice officials that appeared before us yesterday were of the opinion that Bill C-35 is just maintaining a similar approach to where it is right now and that 429(2) applies to all of those other provisions. Bill C-35 is only going in to do something very narrow.

Could I have your thoughts on that very briefly, please, Mr. Spratt?

Mr. Spratt: With the "lawful excuse" and the "wilful" sections in Bill C-35, there is some overlap. Something that needs to be considered when looking at "wilful" and looking at the "lawful excuse" section is that there has been comment in other places that these might prevent a cure for someone with a phobia of dogs or mental health issues who injures an animal that would somehow excuse or be mitigating in their actions with respect to the minimum sentence. That's not the case. This appears to be a general intent offence, and the willful and lawful excuse wouldn't save the reasonable hypotheticals that I was speaking of.

Senator Jaffer: Thanks to all three of you for appearing today,

Mr. Carriere, I want to say thank you to the men and women for their service, and I echo the chair's remarks.

Mr. Spratt, thank you for your kind comments. We appreciate your volunteer appearance on short notice to give us another point of view. I speak for all my colleagues when I say thank you for your presence.

Every bill that comes before us I get very discouraged. To me, this bill has very good vision. The heart is in the right place. Who can't support this? But each time we see mandatory minimum and consecutive sentencing. As somebody who is practised in criminal law, I feel that the sentencing principles are completely being destroyed. Mr. Hurley and Mr. Spratt, we are starting to have cookie-cutter sentencing, which is causing me great worry because the justice system will get the disrepute, not the legislators who make the law. The justice system is standing up for what is right. I am very concerned about that, and I would like your thoughts on this.

Mr. Hurley: I agree with you, senator. The issue is that if you do for this long enough, you always get the exceptional case that does not fit in the range. We've got a lack of range here because we've got a lack of cases. You always come to a situation with mandatory minimums where you get a fetal alcohol Aboriginal man who gets a life-awakening moment as a result of the charge, gets into treatment, gets into counselling, gets his life together and gets off the streets. Then you come to a situation where a judge says, "I would love not to give you the mandatory minimum, sir. I'd like you to keep doing what you're doing. I'd like you to keep this very positive life change, but I'm afraid I've got to send you to jail." That's when our justice system does exactly what it shouldn't do. It doesn't help to keep the streets safe for citizens. It puts a man in a situation where he's in jail, which is the last place he needs to be. If you do this for long enough on any mandatory minimum, you will run into that situation.

I believe our judges should be entitled to the discretion to impose the right sentence. They did it for Paul Vukmanich, and I want them to be able to do that when the case comes along, as it will, where you've got someone below the range. That's my problem with mandatory minimums.

Mr. Spratt: I agree with you that the heart is in the right place here. There can be no question about the value that service animals bring to police forces. There is no question about their inherent and intrinsic value. But what we don't want is for one of those cases that Mr. Hurley spoke of to make its way to the Supreme Court eventually and for the law to be struck down. If there is good in it, let's actually try to take a principled approach.

When there is no demonstrated problem that courts are giving inappropriate sentences for these types of offences, the last thing we want is a law that has heart and is in the right place to ultimately be struck down because we were too short-sighted or we were unable to imagine the hypothetical that arises a year or two or three from now.

The Chair: Senator White.

Senator White: Disregard; I'm not going to convince anybody.

Senator Batters: I might still try.

Mr. Spratt, I was going to say to you if there was a bone, but I guess you kind of did that with your opening statement when you indicated the value of the Senate and this committee, so I thank you for that.

However, the way your opening statement in part was phrased, it might have left some people watching or reviewing this later with a misconception. You talked about the mandatory minimum. I want to draw to your attention and get your concurrence that this is a hybrid offence, so there is the possibility either to prosecute by indictment or by summary conviction. If it's prosecuted by summary conviction, that mandatory minimum penalty of six months' imprisonment does not apply; correct?

Mr. Spratt: Yes.

Senator Batters: As well, if a law enforcement animal were to be killed while aiding a law enforcement officer in carrying out that officer's duties, that's when the minimum mandatory term of six months' imprisonment would apply, not if it's a wounding.

Mr. Spratt: Quite right. I obviously misspoke on that point. You can imagine scenarios where bodily harm would be a substantial and contributing cause of death, and that would fall into those situations.

I'll address the hybrid point, if I may, because you address a very good point.

Senator Batters: Briefly, as I have another question.

Mr. Spratt: I would comment your attention to the case of Nur, paragraphs 94 through 98, which speak to the election of a Crown and how that might cure or not cure unconstitutionality, speaking about the adversarial system, the unreviewable nature of that discretion — the trump card — and the fact that elections happen before all facts are known. It wasn't a cure in Nur, and I don't submit there'd be a cure here.

Senator Batters: Okay, you got your little point in there.

I'll ask a question of Mr. Carriere. First, I'm very sorry for your loss. Thank you for appearing before our committee today despite the fact that you've just been through a very difficult time in Edmonton.

Mr. Carriere, I'm not sure if you heard the reasonable hypothetical that Mr. Spratt used earlier in his testimony. Given your significant experience in these matters dealing with canine operation units, can you comment on how reasonable or unreasonable you found that scenario to be?

Mr. Carriere: We're fortunate here in Edmonton to have a special Crown assigned to deal with these offences, not just law enforcement incidents but animal cruelty charges overall. That speaks to why we've had a bit of success here in Edmonton with convictions.

You mentioned the fact that it's a hybrid offence, which is important. Just like in my statement, we have to look at the totality of what we're dealing with in front of us — the totality of the individual that committed the offence, the circumstances behind it and the nature of the injuries. If we get a good Crown, that's where we'll see the decision either to go indictable or summary, like we do now.

In this bill, we can see both ends of the spectrum, one at the very high end where a service dog has been killed and the circumstances are such that an indictable offence and charge is laid. There are many cases on a regular basis where our law enforcement animals are kicked, punched or pepper sprayed. They come with cuts, bruises and all sorts of stuff, and the vets are treating them all the time. Those probably fall more in line with the summary part of the bill. I see that as really important because that's where the majority of charges laid would be dealt with if this bill is passed.

Unfortunately, the other is the extreme, and that's where we need to have the indictable offence section. As rare are they are, the extremes are going to occur again and we need to have some kind of deterrent.

Obviously I'm a little biased being a law enforcement officer, but having six-month minimums, which we all know is two thirds most of the time, is important to have in this section. I see value in it.

Senator Batters: You explained the hybrid nature of this offence and the types of offences that in your experience would be prosecuted as summary offences. Does it seem like the reasonable hypothetical that Mr. Spratt used earlier would be exactly the kind of offence that would probably be prosecuted as a summary nature rather than an indictable nature?

Mr. Carriere: I would have to agree.

Senator Joyal: I would like to thank Mr. Spratt and Mr. Hurley for reminding us of the important amendments brought to the Criminal Code in 2008 in respect of animal cruelty. I would like to add that Senator Baker was sitting on this committee when the committee adopted the legislation increasing the penalty. I remember also that Senator Jaffer and former Senator Bryden from New Brunswick were on the committee and were the strongest advocates. You must remember that we sent that bill back to the House of Commons three times before we came to agreement that the penalty needed to be increased to a substantial level. I thought you were right in praising this committee, because we were instrumental in making Canadian law better in relation to animal cruelty.

That being said, I want to take things from where you left off in relation to the sentences that Bill C-35 includes. You have not commented on the consecutive sentence, and that seems to me to be an important element in determining the proportionality that the Nur case established as being the criteria to ponder the totality of a sentence.

In my opinion, unless I'm mistaken, Bill C-35 comes after another criminal act has been committed, because as you read proposed subsection 445.01(3), it has to be linked to another offence and served consecutively to that offence. So the judge who will be asked to pronounce on the level of sentencing will have to take into account the fact that those sentences will be served consecutively, adding to the overall number of days, weeks, months or years that a person might be condemned to serve in prison.

But you have not commented on that aspect. I understand you are satisfied with the subsection (3) that established the principle of consecutive sentencing.

Mr. Spratt: No, that section is not something we would support either. Right in subsection (3), it contemplates the consecutive sentencing arising out of the same transaction, which is a departure from how we would normally see sentencing.

The way this is going to play out is if by virtue of those consecutive sentences the sentence would offend the principle of totality, you might have a reduction, actually, in the length of sentences that are pronounced in each individual offence to avoid that perverse result.

This is just another example of limiting judicial discretion in crafting the appropriate sentence, taking into account the principles.

I have to disagree that it is not an answer to rely on Crown discretion to correct these problems when we are limiting judicial discretion. If we want discretion in the system to correct problems, that discretion should be vested not with the Crown who is in the adversarial role, but in the judicial figure that we have confidence in, so that the proper sentence can be applied. It is just another example of limiting judicial discretion.

Senator Joyal: I understand, Mr. Carriere, you are with the canine unit, but I would think that the Edmonton Police Service also has horses that they use in proper circumstances. Are you aware of any past experience with horses whereby horses also have been hurt in trying to control a mob or a crowd in public protests that would fit within the scope of this legislation?

Mr. Carriere: Shocking as it is, we don't have any horses for use here in Edmonton. Our counterparts in Calgary certainly do.

I know of a case in Toronto where a horse was used, as you were mentioning, in a crowd control situation. There was an incident where there was an intentional act where the horse was injured seriously and had to be put down as a result.

If we look at most cases across the country, you are probably going to see that the majority of cases are going to be with a police service dog. There are the odd ones with regard to horses, but I would venture that 90 per cent are going to be in relation to police service dogs and the application of their work there.

Senator McInnis: Thank you for being here.

Mr. Spratt, thank you for your kind remarks. Most of us in doing research look at what is said in the committees in the House of Commons, and they pale in comparison, to be honest, to the questioning here. Of course, they don't have the senior veterans that we have around here in the Senate.

I am especially pleased that you are here, and worried, because I have been trying to kill two rabbits on my property. I have been doing it — and I wonder if this would be a defence — at the insistence of my wife. The rabbits ate all her tulips. I think I hit one last weekend with the slingshot, but it ran off, so I don't know if that would be a defence or not. But I was unaware that this was a problem. It is a good thing I'm not a good shot with that slingshot. It worried me when I heard that because if you give me another weekend, I might get one.

Mr. Carriere, where do you house service animals? Do they stay with a handler at night, or are they corralled in some particular area?

I take it that you use certain dogs for certain tasks. For example, the CNIB seems to use a lot of retrievers and labs. Is it fair to say that law enforcement uses German shepherd dogs and have so for many years? When I was young, we used to refer to the German shepherd as a police dog. You may use them for searching containers — labs or whatever — but basically you use German shepherds?

Mr. Carriere: I'll answer both questions for you.

Our dogs go home each night with the handler. We have a kennel that's set up at each handler's residence. They have the doghouse and water bowl — it is a heated doghouse. They get treated very well. Most are obviously integrated with the family and usually the community, because most handlers who have a dog, everybody in the neighbourhood knows, so everybody is very aware of that.

As far as the training component of why we use German shepherd dogs, we also use Belgian Malinois, which are a similar dog to the German shepherd. We use those as "general duty" dogs. There are seven profiles they look after, such as tracking, building searches, article searches, compound searches, and we do protection work with them as well. Those are some of the basic skills that they have.

We do use other animals. You mentioned labs, golden retrievers and springer spaniels. That's for single-detection work where they're searching for explosives or drugs. Those are two things that we have with our service regarding single-profile animals.

The difference with the German shepherd is that they have the ability to do it all. They can do the seven profiles, one of which is what we spoke a little bit about with Quanto's situation, where they are at times asked to go in and apprehend a subject. It is not an easy thing to teach; it is one of the harder profiles to teach a dog to do with confidence and success. That's an important part.

When we look at the traits of a dog, we want to ensure that we have a well-balanced dog that can do the job on both ends of the spectrum. Can they be social in an environment where they are doing demonstrations for people in the public, but can they also do the job when it gets dirty? It happens quite often that not everybody agrees with the police. We have seen that recently here in Edmonton. There's a job they have to do, and sometimes it is nasty.

In trying to find a well-balanced dog, we have found in law enforcement that the German shepherd dog has the ability to do both.

Another important part here in Canada, and we discussed it earlier, is that we also have to deal with the cold. A German shepherd is a dog that's durable, both in their working ability but also to endure the heat, the cold and our environment.

That's why we find and why you see so often here in Canada that a law enforcement animal is generally a German shepherd dog.

The Chair: We have roughly five minutes remaining. We have time for a few brief questions and concise responses.

Senator Joyal: Mr. Spratt and maybe Mr. Hurley, the level of mens rea included in the offence, which is essentially — and I'll read from subsection 445.01(1) — "Every one commits an offence who, wilfully and without lawful excuse. . . ." So the mens rea is to be very strong because you have to want to kill the animals and you have to have no reason to kill the animal. It seems to me that that bar might mitigate some of the comments you have made. I'm trying that on a defence lawyer.

Mr. Hurley: The mens rea is strong, sir, but the cases we deal with at the lower end are the borderline individual who don't qualify for mental health defence and still have an operating mind. They're a fetal alcohol individual from a reserve near Edmonton, limited education, borderline individual, but they will still fit into that given our Canadian law.

We're not talking about you and me, educated people who can make really good decisions. The people we deal with at the bottom end below the spectrum still fit the minimum level to have an operating mind, but that's where we run into the problem that "I would love to do something different for you, sir, but as a judge I just can't."

I don't disagree with your interpretation of the section of the law, but the real problem is that very low-end individual.

Mr. Spratt: I would certainly agree with your characterization, but I don't think that's settled. You might have a Crown making a different argument, that the "wilfully" doesn't elevate the mens rea to a specific intent and that "without lawful excuse" would — I can't even actually think of the application here. Maybe if it was a self-defence case, but that certainly wouldn't cover someone with significant mental health issues that fall short of being not criminally responsible. Someone with a phobia of dogs wouldn't be a lawful excuse.

I would argue that it would be an increase; it would narrow the offences. I suspect that would meet some resistance, and that has yet to be determined.

Senator McIntyre: Mr. Spratt, you answered my question. In other words, the mens rea would not be raised to specific intent as in the case of first-degree murder, but it would remain at the level of general intent.

Mr. Spratt: There are arguments to be made both ways. There's a credible argument that despite that wording in the section, it would be a general intent offence.

Senator McIntyre: Second-degree murder is at the general intent level, so I assume it would remain at that level, but there's an argument, as you said.

Senator Joyal: The sentence would have to be served consecutively, so the judge would have to take into account the appreciation of the mens rea for the second-degree murder versus the mens rea in relation to that offence.

The Chair: We're not going to argue any further.

Thank you, witnesses, for being with us today and providing us with your views on the Bill C-35. It is very much appreciated.

Staff Sergeant Carriere, given the very difficult circumstances, we really appreciate your appearance here today.

Mr. Carriere: Thank you.

The Chair: Members, while our witnesses depart, I would like to move immediately to clause-by-clause consideration, so I'm going to encourage you to remain here.

Before we begin, I want to make you aware that we have officials from Justice Canada with us today, as they were yesterday. We have Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section; and Michael E. Zigayer, Senior Counsel, Criminal Law Policy Section.

I would ask you both to come forward. I believe there may be a question or two for you. We appreciate you being here. Perhaps we can deal with the questions and hopefully move to clause by clause.

Senator Joyal, you have a question.

Senator Joyal: Yes.

Mr. Zigayer or Ms. Morency, as we mentioned yesterday, a bill that has been tabled in the Quebec legislature, Bill 54, An Act to improve the legal situation of animals. I would like to read section 13 of the bill, which is essentially on the substance of Bill C-35.

[Translation]

13. No person may directly or indirectly touch a personal service animal with a view to hindering it or obstructing its passage or view. The same holds for a service animal while it is assisting a peace officer in the performance of the officer's duties.

For the purposes of the first paragraph, a "personal service animal" means an animal that is needed by a handicapped person to assist the person and that has been certified as having been trained for that purpose by a professional service animal training organization.

[English]

In other words, it covers exactly the same group of animals as Bill C-35 describes — law enforcement animals, military animals or service animals.

What concerns me is the coherence of Bill C-35 with the proposed legislation in Quebec, because the legislation provides sanctions at section 76. I will quote the section:

[Translation]

Penal proceedings for an offence [. . .] may be instituted before the municipal court by the local municipality in whose territory the offence was committed. The fines and costs relating to such an offence belong to the municipality.

[English]

If I understand the bill correctly, it means that for similar offences, the Crown prosecution can elect to lay a charge at the municipal level or lay a charge in a criminal court. In other words, it widens the options that the Crown attorney might have to consider in its plea bargain with the offender.

Are you aware of that proposal? How do you see it in sync with the objectives of Bill C-35?

Michael E. Zigayer, Senior Counsel, Criminal Law Policy Section, Department of Justice: Senator, thank you for having made us aware of this proposed legislation in Quebec. I wasn't aware of it before yesterday. I have had an opportunity in discussing the proposed legislation with you to become a little bit more familiar with it.

You are correct. It seems to me that it covers the same types of animals, service animals. It is the conduct of interference, which is a little less likely to engage criminal activity as opposed to what we're looking at here in the Criminal Code.

I agree with you about the range of options available to a prosecutor or to the police. We know that in Quebec all criminal prosecutions have to be approved beforehand.

Senator Joyal: By the prosecutor.

Mr. Zigayer: By the prosecutor. It will give the people responsible for the enforcement of the law — municipal, provincial and federal, the Criminal Code — an expanded range or scope of actions. We will continue to see if it's a very serious interference, to the point that an assault on any service animals or the killing of any of those animals is likely to result in a criminal prosecution.

I would see this as perhaps being more likely to be employed in the case that Ms. Bergeron described this morning where it wasn't affecting her personally. It was one of her friends who said she had lost the service of three dogs because someone was coming up and flipping the dog over. Eventually the dog became unusable as a service animal, as a guide dog for her.

It might be that if this was a first offence, the provincial Crown might go that route, but if it's a second or third offence, I think they would switch over to the criminal courts.

Senator Joyal: I don't want to prolong the discussion, but legally it is important because it also provides for service animals for a police officer. Yesterday, you answered the very specific question that if there is a violation of a municipal bylaw, then Bill C-35 would not be triggered. I understand that if there is a violation of a municipal bylaw, this would trigger. In other words, the offences of hurting a service animal in a protest, for instance, would be covered by this new section, always under section 446 of the Criminal Code, but there would now be a new offence created in relation to somebody who, during a protest, would hurt a horse or another animal being used by the police forces.

Mr. Zigayer: I should make my position clear on this. Where the bill refers to an offence, it is referring to a federal offence.

Senator Joyal: A criminal offence under federal statute.

Mr. Zigayer: Yes.

Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice: The provincial government has authority over legislation dealing with property rights, for example, and they can create an offence under provincial law dealing with that. It is less than two years, but it is not a criminal offence. They have authority over animal welfare, how animals are to be treated during testing, and other things.

As you have noted with the new bill that they're proposing, if you look at child protection legislation, you have a similar approach, where the provinces deal with child welfare and regulate child abuse and can impose an offence up to less than two years. The Criminal Code can also apply and deal with conduct that reaches over into the criminal area with a different purpose under the criminal law power than under child welfare legislation.

There are many examples where federal and provincial legislation may address similar fact situations, and Crowns and police may use a different tool to address the situation. But as my colleague said, this is clearly dealing with a criminal offence under federal jurisdiction.

Senator Joyal: Are you aware of any other provinces that might have a similar section in their provincial statute, the one similar to the section 13 I just read to you?

Mr. Zigayer: I am not personally aware.

Senator Baker: Saskatchewan and B.C. have similar legislation.

I am just a little confused, and I don't know if we can get to the bottom of it. If you have a federal act that is not the Criminal Code, and you have a prosecution under the federal act and a prosecution under the Criminal Code for the same delict — I always use the word "delict" because I'm old, I suppose.

Senator Joyal: It is a good common law word.

Senator Baker: You would have two Crowns. You would have a federal Crown prosecuting a CDSA offence under the same delict, and you would have a provincial Crown. You would have two Crowns in the court at the same time, one handling the Criminal Code offence and the other handling the CDSA offence.

Now, you have in this case — this is the Criminal Code we're dealing with — one provincial Crown prosecutor, and you have a provincial law and a federal law concerning the same delict. As I read this, it says in subclause (3):

A sentence imposed on a person for an offence under subsection (1) committed against a law enforcement animal shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events.

So we have the same offence or series of events arising out of the same delict. We have got two different laws, one provincial and one federal. Does that mean that we will then have sentences to be served consecutively? Or are you suggesting that the Criminal Code offence under this section of the Criminal Code will not be served consecutively because that is a provincial offence? It could be under the municipal regulations or it could be like the Quebec section.

I wonder if we could seek some clarity on that and whether or not it is possible to get the clarity given that this is a new piece of legislation.

Mr. Zigayer: I will approach this in two phases.

First, I will refer specifically to the case of Quanto and the sentencing Mr. Vukmanich received at that time. I think the sentencing regime that we proposed in the legislation would fit this case to a T. You've heard that he received 18 months of the 26 for the killing of Quanto. At the same time, he was convicted of fleeing from the police, and for that he received three months consecutively. Those are two events that occurred at about the same time. That's a perfect fit.

Another one, the possession of weapon for a purpose dangerous to the public, the knife, again committed at the same time as the killing of Quanto and running from the police. That was made consecutive as well.

There was also possession of stolen property — the car — and resisting arrest and, finally, impaired driving by drugs. All of these things happened at the same time, so they fit in this proposed language that we have inserted into the Criminal Code.

That's the first phase. That's really what that goes to.

With regard to potential existence of a provincial Crown prosecutor faced with a Criminal Code prosecution as well as an available or similar provincial offence, I don't think it is quite the Kienapple situation, but I think there would be an interesting discussion between Crown and defence as to which one there would be a conviction on, a guilty plea to, but I don't think one is a bar to the prosecution of the other.

Senator Baker: The Kienapple principle goes out the window, though, when you have consecutive sentences in law. The Kienapple principle would only apply when you have, for the same delict, two separate sentences accomplishing the same purpose.

Senator Joyal: That's the nature of consecutive sentences, the implication, the reason why.

Senator Baker: I know it is difficult to answer. Maybe we should leave it to the judge.

What do you think, lawyer?

Mr. Zigayer: I think it would be a wonderful thing to leave it to the judge.

Senator Batters: Do you have anything to add to this conversation, Ms. Morency?

Ms. Morency: I would take the view that when you have a series of transactions that form one event, as my colleague noted, each part of it had a different charge, a different conviction and consecutive between the animal cruelty charge and fleeing the police officer. That's different than the scenario you are describing where you have, under provincial law, an offence that could constitute interference with the animal or, under the Criminal Code, would be maiming, injuring, harming the animal. I think a court is not going to convict the same individual of both. The nature of the offence is the same.

The description we had before was a number of offences being committed in the same line of transaction or over a period of time. Again, as I was mentioning before, the courts can be faced with this on a number of different things where there's the Highway Traffic Act, the Criminal Code, the dangerous driving offence. They will come at it, but at the end of the day either some charges will be withdrawn or not proceeded with, or they're convicted on one or the other. But if it's the same set of facts, resulting in the same charge, they're not going to be convicted on both.

Senator Baker: They won't be serving it consecutively.

Ms. Morency: There will be one conviction.

Senator Baker: Look, I have read many recent cases out of Saskatchewan concerning injuries to dogs. There are usually three counts on a simple injury case. One is the Criminal Code, another is the provincial law, and the other is the consequences of it. The three counts are tried together, three different judgments.

The problem with the consecutive nature of the same delict and where you have the unusual situation of three provinces in Canada who have similar legislation — as the police officer testified before the committee, he said, "Look, three provinces have gone ahead with this. We're waiting on the federal government to do the same thing."

Thank you for your explanation. It will be interesting to see how the court interprets it.

The Chair: Are there additional questions from other members? Seeing none, is it agreed the committee proceed to clause-by-clause consideration of Bill C-35?

Hon. Senators: Agreed.

The Chair: Agreed.

Shall the title stand postponed?

Hon. Senators: Agreed.

The Chair: Agreed.

Shall clause 1, which contains the short title, stand postponed?

Hon. Senators: Agreed.

The Chair: Agreed.

Shall clause 2 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 3 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 4 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 1, which contains the short title, carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall the title carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall the bill carry?

Hon. Senators: Agreed.

The Chair: Carried.

Does the committee wish to consider appending observations to the report?

Hon. Senators: No.

The Chair: There are none.

Is it agreed that I report this bill to the Senate?

Hon. Senators: Agreed.

The Chair: Agreed.

Before you leave, I want to thank the witnesses, of course, for their assistance.

This is our final meeting of the Legal and Constitutional Affairs Committee for this Parliament, and I want to thank the excellent staff who support our work in committee.

I want to say it's been a pleasure for me working with such a hard-working group of senators who do their homework. That hard work shows during every committee meeting. I think we can all be proud of the good work we do and the very congenial and, for the most part, non-partisan way we go about that work. Thank you all very much.

Senator Joyal: We appreciate your chairmanship, chair.

The Chair: Thank you.

(The committee adjourned.)