Thursday, June 20, 2024

The Standing Senate Committee on Legal and Constitutional Affairs has the honour to present its

TWENTY-FIFTH REPORT

Your committee, to which was referred Bill S-15, An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, has, in obedience to the order of reference of March 19, 2024, examined the said bill and now reports the same with the following amendments:

1.Preamble, page 1:

(a)Replace lines 1 to 7 with the following:

“Whereas Parliament is of the view that certain animals should not be kept in captivity because of the risk of animal cruelty and the risk to public safety that such captivity presents;”;

(b)replace line 9 with the following:

“these animals in captivity may be justified in certain cir-”.

2.Clause 1, pages 1 to 4:

(a)On page 1,

(i)replace line 20 with the following:

“(i) possesses an elephant, great ape or designated animal that is kept in”, and

(ii) replace line 22 with the following:

“(ii) breeds or impregnates an elephant, great ape or designated animal”;

(b) on page 2,

(i)replace line 6 with the following:

“the course of which elephants, great apes or designated animals that are”,

(ii)replace lines 8 and 9 with the following:

“ment in a performance or for conveyance.

(2) Every person who possesses an elephant, great ape or designated animal”,

(iii)replace lines 12 to 14 with the following:

“elephant, great ape or designated animal.

(3) If, on the day on which this section comes into force or the day on which a species of animal is designated under section 445.4, a person possesses an elephant, great ape or designated animal that is kept”,

(iv)replace line 16 with the following:

“them in respect of that elephant, great ape or designated animal during the”,

(v)replace line 19 with the following:

“(4) If an elephant, great ape or designated animal that is kept in captivity”,

(vi)replace lines 21 to 23 with the following:

“on which this section comes into force or the day on which a species of animal is designated under section 445.4, subparagraph (1)(a)(i) does not apply, in respect of that elephant, great ape or designated animal, to a person who possesses it on the day of its”,

(vii)replace lines 32 and 33 with the following:

“sesses an elephant, great ape or designated animal that is kept in captivity in the best interests of the elephant’s, great ape’s or designated animal’s”, and

(viii)replace lines 37 and 38 with the following:

“an elephant, great ape or designated animal that is kept in captivity in connection with a scientific research program for conservation purposes;”;

(c)on page 3,

(i)replace line 1 with the following:

“an elephant, great ape or designated animal that is kept in captivity in”,

(ii)replace lines 4 to 7 with the following:

“tent authority in a province, possesses an elephant, great ape or designated animal that is kept in captivity in the best interests of the elephant’s, great ape’s or designated animal’s welfare;

(d.1) a person who possesses a designated animal in captivity for the purpose of protecting property or public safety in accordance with any applicable law of Canada or a province or with an Aboriginal or treaty right recognized and affirmed by section 35 of the Constitution Act, 1982;

(d.2) a person who traps a designated animal in accordance with any applicable law of Canada or a province or with an Aboriginal or treaty right recognized and affirmed by section 35 of the Constitution Act, 1982; or

(e) a person who possesses an elephant, great ape or designated animal”,

(iii)replace line 9 with the following:

“with assistance or rehabilitating it following an injury or another state of distress.”,

(iv)replace line 15 with the following:

“breeds or impregnates an elephant, great ape or designated animal that is”,

(v)replace line 17 with the following:

“search program for conservation purposes; or”,

(vi)replace line 20 with the following:

“impregnates an elephant, great ape or designated animal that is kept in”,

(vii)replace line 27 with the following:

“mits natural breeding of an elephant, great ape or designated animal that”,

(viii)replace line 29 with the following:

“search program for conservation purposes; or”,

(ix)replace line 32 with the following:

“natural breeding of an elephant, great ape or designated animal that is”, and

(x)replace line 38 with the following:

“for conservation purposes or in a conservation program.”;

(d)on page 4,

(i)add the following after line 1:

“designated animal means an animal of a species designated under section 445.4 or a non-domesticated subspecies of that species. It also includes a hybrid animal that has, in the last four generations of its lineage, at least one animal of a species designated under section 445.4. (animal désigné)”, and

(ii)replace lines 4 and 5 with the following:

“great ape means any species of the genus Gorilla, Pan, or Pongo, including a gorilla, bonobo, chimpanzee or orangutan. (grand singe)

445.4 (1) On the recommendation of the Minister of the Environment, the Governor in Council may designate, by order, a non-domesticated species of animal as a designated animal based on the best available scientific, veterinary, animal care or animal welfare information.

(2) Before making a recommendation under subsection (1), the Minister must consider the following:

(a) whether the species is capable of living in captivity;

(b) whether the biological needs of individual animals of that species to live a good life can be met in captivity, including, in particular,

(i) the ability of animals of the species to engage in natural behaviour while in captivity,

(ii) the intelligence, emotions, social requirements, physical size, lifestyle and potential use in performances of animals of the species, and

(iii) the evidence of harm to animals of the species in captivity, including stereotypies, health problems in captivity, shorter lifespans and increased infant mortality rates; and

(c) the public safety risks posed by animals of the species.

(2.1) At least 180 days before making a recommendation under subsection (1), the Minister must publish the proposed order in the Canada Gazette and afford a reasonable opportunity to interested persons to make representations to the Minister with respect to the proposed order.

(2.2) Before making a recommendation under subsection (1), the Minister must consult with representatives of the zoo industry, wildlife biologists, animal care experts and provincial representatives responsible for animal welfare.

(2.21) Before making a recommendation under subsection (1) to designate a species of animal that is native to Canada, the Minister must also consult with representatives of persons or groups that hold an Aboriginal or treaty right recognized and affirmed by section 35 of the Constitution Act, 1982.

(2.3) At least 30 days before making a recommendation under subsection (1), the Minister must table before each House of Parliament a report setting out a detailed description of

(a) the Minister’s consultations under subsections (2.2) and (2.21); and

(b) the scientific or other evidence that supports the proposed order.

(2.4) The Minister must publish the report on the Department of the Environment website within 10 days after the day on which the report is tabled in Parliament.

(3) The Governor in Council may not designate a species of animal under this section if the species is used in farming for food purposes in Canada.

445.5 (1) The court imposing sentence on a person convicted of an offence under subsection 445.2(2) or (4) or 445.3(1) or discharging the offender under section 730 may, on application of the prosecutor or on its own motion, in addition to any other measure imposed on the offender, order that the offender carry out any action, at the offender’s cost, that is necessary in the best interests of the animal involved in the offence, including

(a) modifying the physical conditions in which the animal is kept;

(b) relocating the animal to another facility or sanctuary;

(c) modifying the social conditions in which the animal is kept; or

(d) forfeiting ownership of the animal and surrendering the animal to an animal welfare authority named in the order.

(2) In determining whether to make an order under subsection (1), the court must ask for and consider expert evidence on the individual animal’s welfare and conservation of its species.

(3) On its own motion or on application of the prosecutor, the court may make an order made under subsection (1) applicable to any other animals in the offender’s possession if those animals are of the same species as or a species closely related to the animal in respect of which the offence was committed.”.

3.Clause 2, page 4: Add the following after line 9:

“designated animal has, for the purposes of subsections 6(2.1) and 10(1.1) and (1.2), the same meaning as in subsection 445.3(10) of the Criminal Code. (animal désigné)”.

4.Clause 3, page 5: Replace line 4 with the following:

“living elephant, great ape or designated animal.”.

5.Clause 5, pages 5 and 6:

(a)On page 5,

(i)replace lines 26 and 27 with the following:

“phant, great ape or designated animal if the importation or exportation is

(a) in connection with a scientific research program for conservation purposes or with a”,

(ii)replace lines 29 to 31 with the following:

“(b) for the purpose of keeping the elephant, great ape or designated animal in captivity in the best interests of that elephant’s, great ape’s or designated animal’s welfare.”;

(b)on page 6,

(i)replace lines 4 to 6 with the following:

“(a) to possess an elephant, great ape or designated animal that is kept in captivity in the best interests of that elephant’s, great ape’s or designated animal’s welfare;”,

(ii)replace line 8 with the following:

“breeding of an elephant, great ape or designated animal that is kept in”,

(iii)replace line 10 with the following:

“gram for conservation purposes; or”,

(iv)replace line 12 with the following:

“breeding of an elephant, great ape or designated animal that is kept in”, and

(v)add the following after line 13:

“(1.3) For greater certainty, a person does not require a permit issued under this section to possess a designated animal that is kept in captivity for the purpose of

(a) providing that animal with assistance or rehabilitating it following an injury or another state of distress;

(b) protecting property or public safety in accordance with any applicable law of Canada or a province or with an Aboriginal or treaty right recognized and affirmed by section 35 of the Constitution Act, 1982; or

(c) trapping activities carried out in accordance with any applicable law of Canada or a province or with an Aboriginal or treaty right recognized and affirmed by section 35 of the Constitution Act, 1982.”.

6.New clause 11, page 9: Add the following after line 40:

“Coming into Force

11 This Act comes into force on a day to be fixed by order of the Governor in Council, but that day may not be earlier than the first anniversary of the day on which it receives royal assent.”.

Respectfully submitted,

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Observations to the Twenty-Fifth Report of the Standing Senate Committee on Legal and Constitutional Affairs (Bill S-15)

Pending review of evidence regarding risks relating to animal cruelty or public safety, including evidence before the Committee, the Committee recommends that the Government of Canada consider as a top priority, subject to the next paragraph herein, the designation, for restrictions under Bill S-15, An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, of non-native big cats (lions, tigers, jaguars, cheetahs, leopards, snow leopards, and clouded leopards) in the context of captivity.

With the addition of amendments related to Noah’s Clause in Bill S-15 that could lead to new provisions relating to the regulation of big cat captivity in the bill, it is imperative the Government of Canada urgently start creating a plan that would guide, facilitate, and aid the efforts of those on the ground making this transition. The plan must be clear, concise and in place before the provisions in the bill take effect. The Government of Canada, among other things, must consider the costs associated with the transition, the interruption of various business models and the government sanctioned stigmatization of the ownership of big cats – all of which, combined, are likely to lead to a huge dislocation of these animals. The absence of a plan in place as these provisions in the bill come into effect will inevitably lead to disproportionately more acts of cruelty towards these animals.

The committee notes, the Government of Canada’s strongest allies in this transition will be zoos and aquariums, and in fact, witnesses agree that a transition plan for big cats would be necessary. As such, their inclusion in the creation of the plan is essential.

The committee has repeatedly raised concerns that the Criminal Code has been amended in a piecemeal manner for many decades and has become cumbersome, sometimes repetitive or inconsistent, and is in need of comprehensive reform (see, for instance, the committee’s 2017 report Delaying Justice is Denying Justice at pages 41 to 43). The committee repeats its past recommendation that an independent body should undertake a comprehensive review of the Criminal Code. The newly revived Law Commission of Canada could undertake such a review.