Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 5 - Evidence for December 11, 2002
OTTAWA, Wednesday, December 11, 2002
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-10 to amend the Criminal Code (cruelty to animals), met this day at 3:45 p.m. to give consideration to the bill.
Senator George J. Furey (Chairman) in the Chair.
[English]
Senator Nolin: Honourable senators, do not deduce from my comment that I do not want to hear from the witnesses; however, I wish to make a formal objection to the fact that we are studying not a bill, but a document entitled ``Bill C-10B.'' Given that our house has sent us an order to study and to split Bill C-10 in two parts, that we have reported one part of that, being Bill C-10A, and that Bill C-10A is now in front of the House of Commons, seeking their concurrence with a message from the Senate, our side argues that this committee is not properly seized of a bill.
We do not object to studying a document. That is why we are ready to listen to the witnesses.
Senator Beaudoin: I have just one matter to add. Of course, the point of order should be raised in the Senate, not in this committee.
May I say that we have simply complied with an order of the Senate? If honourable senators do not like the order, the point should be raised in the Senate, just for the purpose of the record.
The Chairman: Thank you, Senator Beaudoin.
Today, honourable senators, we will continue hearing from witnesses in our study of the proposed amendments to the Criminal Code regarding cruelty to animals. We will hear from one panel today, followed by an in camera session for senators only.
I would ask you to join me in welcoming our scientific panel. From the Canadian Council on Animal Care, we have Clément Gauthier. From the Canadian Institutes of Health Research, we are joined by Mark Bisby, Vice-President, Research Portfolio; and Patricia Kosseim, Senior Ethics Policy Adviser.
Representatives from the Association of Universities and Colleges of Canada are Robert Best, Vice-President, National Affairs; and Andrew Tasker, Associate Dean, University of Prince Edward Island, Atlantic Veterinary College.
Finally, from the University of Western Ontario, we are pleased to welcome Bessie Borwein, Special Adviser to the Vice-President, Research.
I believe the panelists have been informed that each group will have five minutes to make a presentation and then entertain questions from honourable senators.
Mr. Clément Gauthier, Executive Director, Canadian Council on Animal Care: Honourable senators, thank you very much for inviting the Canadian Council on Animal Care to participate on this round table discussion. The CCAC was established in 1968 through a joint initiative of AUCC, the Canadian Federation of Humane Societies, or CFHS, the Medical Research Council of Canada, now CIHR, and several federal departments, as an independent, peer-review organization mandated to ensure, through programs of guidelines development, assessment and education, that the use of animals, where necessary for research, teaching and testing, employs physical and behavioural care according to acceptable scientific and ethical standards.
The CCAC is not an animal user. It is a national, quasi-regulatory organization involving over 2,000 scientists, veterinarians, community representatives from all walks of life, and animal welfare representatives through over 220 institutional animal care committees.
The periodic assessments of institutions by CCAC panels of external reviewers is a rigorous process involving public representatives dominated by the CFHS. Holding a valid CCAC certificate of good animal practice is a mandatory requirement for all academic recipients of CIHR and NSERC funding.
All federal departments using animals for regulatory purposes are represented on council, and their laboratories participate in our program on a voluntary basis, as do major users in the private sector. CCAC standards are recognized in several publications of federal departments as the standards for all research involving animals.
Five of the six provinces having enacted legislation on the use of animals for scientific purposes make reference to CCAC standards in their statutes or regulations. This is why the CCAC is in fact a quasi-regulatory body.
The CCAC pioneered the concept of institutional animal care committees that has been emulated worldwide. CCAC is a member of the health effects experts of the OECD Test Guidelines Program, the Canadian signatory of the European Convention for the Protection of Vertebrate Animals Used for Experimental and Other Scientific Purposes and the home of the International Council for Laboratory Animal Science since 1999.
[Translation]
In December 1998, the Canadian Council on Animal Care publicly expressed its support for the bill to amend the Criminal Code in terms of cruelty to animals based on the five major principles detailed in Part B of our position statement.
The first four principles are met in Bill C-10. Nonetheless, two notices from our legal advisors prompted the CCAC to express qualified support for the fifth and last principle that we continue to support, that is, the need to provide a greater measure of certainty to researchers, courts and the scientific community in terms of two fundamental points of the definition of an offence applied since the Ménard case of 1978.
They concern, first, the legality of the purposes, and second, the assessment of the means used to meet the objective given cost and social priorities.
These independent legal notices concluded the following: that on one hand, the lack of provincial law legitimizing the use of animals for scientific purposes in four Canadian provinces and three territories makes it impossible for uniform application of sections 182.2 and 182.3 from one province or territory to another in terms of a lawful excuse defence.
On the other hand, the lack of precision and clarity in the terms set out in the provisions of sections 182.2 and 182.3 of Bill C-10, of what is considered unnecessary pain or reasonable or adequate care, negates the true advantages and legitimacy stemming from the responsible use of animals for scientific purposes, making it practically impossible to assess the methods used in consideration of social priorities.
[English]
What is ``unnecessary,'' ``brutal,'' ``suitable'' and ``adequate'' for some who are fundamentally opposed to the use of animals for scientific purposes may be entirely different from that which is meant by those same terms in current socially accepted research practice. Proper interpretation of those key terms will become critical to the outcome of future cases and will be subject to inconsistent interpretation between cases, and from one province or territory to the other, unless guidelines are provided to investigatory and prosecutorial bodies.
To address those major interpretation issues without jeopardizing the future of this important proposed legislation, the CCAC recommends that the committee consider including the following recommendation in its report: It is recommended that the minister and the Department of Justice consider means such as the issuance of guidelines by which it can be communicated to the scientific sector, and adopted amongst investigatory and prosecutorial bodies, that compliance with the Canadian Council on Animal Care standards will not amount to an offence under sections 182.2 and 182.3 of an amended Criminal Code, and that the ``CCAC Guide to the Care and Use of Experimental Animals,'' as supplemented by the other published guidelines and policies, shall be referred to and considered in the interpretation and application of these provisions where using animals for scientific purposes is involved.
To close, I would like to mention that part 1 of our recommendation is aimed at directing the investigatory bodies to make an inquiry into compliance with CCAC standards to decide if a charge is to be laid or not. This would provide the means to prevent frivolous prosecutions up front. If investigatory bodies find that something else has been done to animals and the user is charged, part 2 of our recommendation addresses the need for prosecutorial bodies to refer to and consider CCAC standards without binding the ultimate discretion of the courts. Thank you for your attention.
The Chairman: Thank you very much.
Mr. Robert Best, Vice-President, National Affairs, Association of Universities and Colleges of Canada: I am Vice- President of National Affairs at AUCC. My colleague, Dr. Tasker, is Associate Dean, Graduate Studies and Research, and a professor of biomedical sciences at the Atlantic Veterinary College and the University of Prince Edward Island.
Dr. Tasker is also one of AUCCs representatives on the Canadian Council on Animal Care.
As you know, Mr. Chairman, Dr. Axel Meisen, the President of Memorial University of Newfoundland, had very much hoped to be here today. He remains very interested in this matter. Unfortunately, he had to send his regrets. He was unavailable.
However, we very much appreciate the opportunity to appear here today. AUCC is unequivocal in its support of the objective of the cruelty to animal provisions in Bill C-10B.
[Translation]
We are concerned that the bill will inadvertently jeopardize what Canadians regard as the acceptable use of animals in research for the benefit of human beings and animals.
We are concerned that the bill will leave AUCC member institutions vulnerable to frivolous and unwarranted prosecutions, which may result in significant financial costs and serious damage to their reputation. In fact, the mere risk of such prosecutions will have a chilling effect on the research community.
AUCC believes that true redress of the concerns of the research community lies in two measures. The first is the reinstatement of the defences that are currently available to researchers in the Criminal Code. The removal of the cruelty to animal offences from Part XI of the Criminal Code and their transfer to the proposed new Part V.1 would have the effect of eliminating the explicit statutory offences for actions taken with legal justification or excuse and colour of right. The inclusion of these explicit offences in Part V.1 of the Code would ensure that legitimate animal- based research would at least have redress to the defences that currently exist.
Second, we feel it is very important that the Department of Justice should issue guidelines for the benefit of those administering the criminal justice system to assist them in interpreting and applying sections 182.2 and 182.3 of the Criminal Code.
These guidelines should reference the rigorous assessment program that oversees the ethical care and use of animals involved in research and teaching in our universities. This program is composed of the guidelines, policies and standards of the Canadian Council on Animal Care.
[English]
Mr. Chairman, the CCAC standards are adhered to by every Canadian university that is engaged in animal-based research. Indeed, compliance with these standards is a requirement of the Natural Sciences and Engineering Research Council and the Canadian Institutes of Health Research, which support the great majority of the federally funded research undertaken in our universities. The universities have extended that requirement to include all of their animal- based research, regardless of the source of funding.
We wish to be very clear. We are not seeking an exemption from the proposed legislation. We are saying, however, that in the realm of animal-based research and teaching, a 30-year-old, rigorous, tried and tested standard for animal care and the ethics of animal use does exist.
Consequently, AUCC urges this committee to make the following recommendations in its report on Bill C-10B: First, we recommend that the Minister of Justice issue guidelines or other directives to those administering the criminal justice system specifying that the ``Canadian Council on Animal Care Guide to the Care and Use of Experimental Animals,'' as supplemented by the council's other published guidelines and policies, shall be referred to and considered in the interpretation and application of sections 182.2 and 182.3 of the Criminal Code, specifically in regard to the determination of which activities may constitute criminal conduct in the context of using animals for teaching and scientific research, and when criminal charges should be laid or a prosecution stayed.
Second, we recommend that the proposed new section 182.5 of the Criminal Code be amended to read as follows: For greater certainty, subsection 8(3) and the defences of legal justification or excuse and colour of right apply in respect of proceedings for an offence under this Part.
Dr. Tasker and I will be pleased to respond to questions.
Mr. Mark Bisby, Vice President, Research Portfolio, Canadian Institutes of Health Research: I am accompanied by Ms. Patricia Kosseim, our Senior Ethics Policy Adviser.
[Translation]
On behalf of Health Canada Research Institutes, I would like to thank the honourable members of this committee for giving us this opportunity to comment on Bill C-10, particularly the proposed amendments to the sections on cruelty against animals.
[English]
CIHR supports the overall objectives of Bill C-10. The proposed legislation consolidates, modernizes and simplifies the existing penal regime and enhances the effectiveness of the offence provisions for clearly abusive, brutal and cruel treatment of animals.
In its current form, the bill clarifies certain important aspects of the offence provisions. Section 182.2 expressly requires wilful intent or recklessness on the part of the accused for the establishment of these offences. Section 182.3(1) establishes a criminal standard of negligence, defined at 182.3(2), as a ``marked departure from the standard of care that a reasonable person would use.'' These specifications are very important and CIHR fully supports them.
As you know, CIHR is committed to promoting health research that meets both the highest international standards of scientific excellence and the highest standards of ethics. In fact, we are expressly mandated by Parliament to do so in our enabling legislation.
No funds flow from CIHR for research involving animals unless it meets the guidelines on the care and use of experimental animals developed by the Canadian Council on Animal Care and is also approved by a local animal care committee duly certified by the CCAC through its nationally recognized assessment program.
Any finding of institution non-compliance is reported to CIHR or the Natural Sciences and Engineering Research Council, or both, which reserve the right to impose a financial or other sanction against the institution. Such sanction might include freezing or withdrawing of research funds for any or all of the research programs that are funded by ourselves or by the Natural Sciences and Engineering Research Council.
In addition, as of January 1, 2003, all institutions will have to provide a training course, based on a CCAC- recommended syllabus, to all investigators, trainees and staff working with animals as a further condition for CCAC accreditation, and thus for continuing to receive CIHR funds.
The educational, review and oversight role of the CCAC is therefore key to ensuring that all CIHR-funded researchers comply with the highest ethical standards in animal care and are held accountable for their conduct. At CIHR, we look forward to the timely adoption of this bill and to its responsible application in practice, so that the underlying objective of protecting animals against cruelty may be met without inadvertently impeding bona fide health research that meets the highest scientific and ethical standards.
Ms. Bessie Borwein, Special Adviser to the Vice-President, Research, University of Western Ontario: I want to thank you for the opportunity to bring to you the concerns of researchers. I do not speak for a major organization. I have been a researcher and an administrator of research. I would like to endorse what I have heard here, that these organizations are enormously important to researchers and help us to do things right. I and all the researchers I know approve of much in the bill and wholeheartedly support increasing the penalties for wanton cruelty to animals. However, it is our contention that in order to do this, it is not at all necessary to move the cruelty to animals provisions out of the property section in the Criminal Code. The worry that researchers have, and that one hears so often, is not the bill itself, but the context in which we function and where the bill stands. My first involvement in this was when we had two break-ins at our university, thefts of animals, major PR troubles and a legal case. At that stage, the dean asked me to take six months to explore that whole domain in order that we would know with what we were dealing.
I have been following and documenting animal rights extremism for 20 years — its history of arson, break-ins, vandalism, razor-bladed letters, theft of research animals, harassment — even at people's homes — costs in dollars, threats and intimidation. This has become a matter of grave concern for researchers, in certain domains in particular. Millions of dollars of public money have been spent on security, which does not further education, research or patient care. We are dealing with an element that CSIS and the FBI have called ``single-interest terrorism.''
There are animal rights groups in Canada that have specifically and publicly stated their intention to use Bill C-10 to further their agenda. They say they will use the law to press charges and to test it to the utmost. They will use peace officers or authorized organizations like the SPCA or humane societies sympathetic to their cause in order to press this. An additional confounding issue is that there is a monetary incentive for peace officers who lay charges and keep the fines.
We know there are many bona fide animal welfare organizations, which we need. However, some of them have been radicalized and taken over by extremists, and many of them feel vulnerable to that pressure.
We have three concerns. The first is the property issue — the huge consortium of animal users. Farmers buy and sell cattle; they can use them as collateral for loans. That is property. We as researchers buy specific breeds of rats and mice that someone provides for us.
We ask you to very seriously consider reinstating the crimes against animals in the property section of the Criminal Code, as it exists in many jurisdictions, and to remove it from Part VI, where I believe it now resides with sexual offences, public morals and disorderly conduct.
The move away from animals as property must have ideological meaning in the animal rights philosophy and mindset, because it is part of their campaign to move animals toward what is called ``personhood.'' In fact, they have written that this bill heralds the emancipation of animals. We are concerned with the very good care of the animals that we all need and like so much. I will not repeat what has been said before about legal justifications, excuse and colour of right, which are removed from the property section and which all our lawyers have told us diminishes the protection that researchers would like to see in place.
The last major point is the definition of ``animal.'' It includes a troublesome part that says ``and any other animal that has the capacity to feel pain.'' Perception of pain is very complex. Pain experts tell us they do not know how to define ``capacity to feel pain.'' The courts will be asked to rule on this, which will open the door to a great deal of legal wrangling. A much more straightforward definition of ``animals,'' such as ``the vertebrates,'' or ``the warm-blooded vertebrates,'' which is scientifically plain, accurate and understandable, is desirable.
I would like very much to second the material presented to you here by the Canadian Council on Animal Care. They have been extremely important in raising the standards by which animals are cared for in research and testing, emulated and admired worldwide, and reinforced by demands of compliance. In fact, I believe there is no other use of animals that is as scrutinized and supervised as in the domain of research. Therefore, we are wholeheartedly in support of the Canadian Council on Animal Care, and when the regulations are written, their standards should be the reference standards, because they are the most extensive and carefully documented.
I believe it has been said here before that for an extremist, no use of animals in research is acceptable. You might like to know that there is not only the assault on specific researchers, whom they target for propaganda reasons, but a major enterprise in economic targeting. There is the story of the Huntingdon Life Sciences in the U.K., which has now moved to the U.S.A., that forced the British government to draw up a new bill — I believe it is called the ``Criminal Justice and Police Act'' — in which they have outlawed all demonstrations at people's homes. They have made it possible for directors of economic institutions, let alone research ones, to not have their names and addresses published, so extreme has the harassment become. Both Mr. Blair and Mr. Straw intervened because it looked as if Huntingdon Life Sciences, the biggest private animal-testing operation in Britain, would be closed down because of the attacks by animal rights people on their supporting banks and investors. They all started moving back right away under threat of intimidation, and were then propped up by the government.
In closing, I should like to say that the issues here have a context, which is really why researchers are so troubled. The federal government has recently recognized more than ever the great importance of research to the health of Canadians and their animals, and to the economic engine of the country, and has invested a large amount of money in research. Therefore, we ask that the government take a few simple steps to make amendments to this bill to protect the very research it encourages and funds, so there will not be such easy opportunities for private prosecution and legal charges. I feel the stakes are very high, because a few amendments can put everything right in a valuable bill. Canadians are entitled to legislation that will protect their right to benefit from medical research.
Senator Nolin: Ms. Borwein, since your dean has asked you to spend six months of your time to research the context that you just referred to, would it be possible for you to put in evidence what you have described as ``blackmail''? You have referred to groups that would use such tactics. Is it possible to have something in writing?
Ms. Borwein: Yes, of course. I have brought it and I am happy to submit it to the committee, including the whole sorry history of Huntingdon Life Sciences, the history of the hundreds of attacks, over 600 in the U.S.A. in the last five years, and researchers who have given up under the pressure of intimidation, fearful for their children. These intimidators say, ``We know where your children go to school.'' Yes, I would be happy to submit that to the committee.
The Chairman: I would suggest that if you could submit it to the clerk, the clerk would ensure that the members of the committee receive copies.
Ms. Borwein: I will certainly do that.
Senator Nolin: You and others have mentioned the pain elements in the definition of ``animal.'' In Alberta there is no such reference to pain. There, an animal is everything except human beings. That is the definition in chapter A-41 of the Province of Alberta statutes, namely the Animal Protection Act, which indicates in paragraph 1(a) of section 1 that animals do not include human beings.
Do you think it would be preferable in this bill to amend the definition in section 182.1, which says:
In this Part, ``animal'' means a vertebrate, other than a human being and any other animal that has the capacity to feel pain.
As well, get rid of everything that refers to pain and the problem that you illustrate in trying to evidence what is the level of pain that a living entity is suffering. Do you think it would be preferable? I am asking the question of the whole panel. Do you think we should get rid of the pain element?
Ms. Borwein: I think that phrase, ``and the capacity to feel pain,'' should be removed. I think ``vertebrates'' is understood scientifically and otherwise. I would also like to say that the Canadian Council on Animal Care has detailed references to the protection from pain. They have all kinds of things that have been well studied and well set out. That is where the reference standards would be so important. It is not appropriate to have that phrase in there just as a sideline. It is nothing to do with the bill, but you as a person know well enough what pain is when you have it. If you are anaesthetized or you take many analgesics, you do not feel pain, because essentially, pain is registered in your brain.
We will not go into all that. There are all kinds of complexities. There is an international pain association.
Senator Nolin: Are you saying, using me as an example, that my attitude toward pain could be different from yours?
Ms. Borwein: Yes.
Senator Nolin: It is personal and therefore subjective.
Ms. Borwein: It can be, even for you, from time to time.
Senator Nolin: I will go back to my question to the whole panel. Mr. Gauthier referred to Ménard in his opening remarks. As you know, Justice Lamer in Ménard is using the pain threshold as an important element to trigger the mens rea required for the actual infraction of the code. If we left out the pain element and basically just said ``animals,'' do you think it would facilitate what we are trying to achieve? We all agree on the objective of the law, which is to make it efficient. That is what we are trying to do.
[Translation]
Mr. Gauthier: I answered the same question in the House of Commons during review of this bill. I personally helped the Minister of Justice in providing a definition, but it was not on what we had agreed upon.
The first part of the definition stating that all vertebrates are included is simple. It also includes the animals covered by the CCAPS but the CCAPS goes further. Among the invertebrates, there are also the cephalopods — the octopi — which are used because of their highly developed nervous system and its accessibility, being peripheral. It does not cover other animals, however. The United Kingdom includes all vertebrates and cephalopods, a family within the invertebrates. These are used regularly in research because of the accessibility of their nervous system.
It is always a very contentious issue when animals having the capacity to suffer are brought into the discussion. There is no consensus within the community, for example among zoologists who study invertebrates. They do not agree on which animals feel pain, and to what extent. There are many scientific discussions, but no consensus.
At the CCAPS I have seen reports on a study carried out over seven years. The zoologists have not managed to reach agreement on which invertebrates feel pain and to what extent. There are many scientific studies under way but no consensus. A number of provinces are also getting involved because the scientific use of animals falls under their jurisdiction.
There is a lot of controversy when a somewhat more contentious issue like the concept of invertebrates feeling pain is concerned. That is what I have told the House of Commons, as I am doing here.
The CCAPS system has developed five categories of invasive techniques to minimize pain, distress and suffering for animals used in science. This is another element, but one that must be thought twice about before including such a fluid concept in a bill. We are not against that. The CCAPS supports the protection of all animals against cruelty and brutality. This is one of the principles in our brief, and we support it.
I have answered your question as to the concepts of pain and suffering as criteria for the animals covered.
Senator Nolin: We agree that a Crown Prosecutor receiving a complaint from anyone at all — and Ms. Borwein has spoken of the groups that might make use of this new law — will be faced with insurmountable evidence. How can it be proved without a shadow of a doubt — since this is not civil law but criminal — that a being other than a human can feel pain? How can this be proved?
[English]
Senator Nolin: I would like to hear other witnesses. I love to make laws, but I want to make efficient ones. That is my concern.
Ms. Borwein: I must apologize. I do not know enough French.
Senator Nolin: You understood my concern about what a task it would be for the Crown prosecutor to prove that an invertebrate animal like an octopus is suffering.
Ms. Borwein: I thought the definition of ``animal'' did not come into that part. It is the range the bill would cover. I think for the bill to cover vertebrates would make it plain. There are segments that refer to wanton cruelty, which can be more than pain. It can be neglect and other terrible things.
Senator Nolin: That is another discussion, which we almost had with the justice department. What is the benefit for human beings of using penal law? That is not the reason why you are here.
Senator Pearson: I will explore something that has less to do with the bill, although it may be another area of law we need to investigate. It is the so-called ``animal rights people.'' You have done a lot of research and it sounds like a really substantial problem. Perhaps there are other kinds of laws that need to be put in place in order to keep things somewhat in balance. In the Huntingdon case, they had to make laws about not gathering in front of private homes. These are big challenges in the era of the Charter of Rights and Freedoms. Having to protect ourselves from animal rights people is not part of our daily experience, in most cases. Can you give us a better sense of the dimension of the problem for researchers?
Ms. Borwein: It would not be in the context of this bill, of course, because this addresses other things. There are jurisdictions that are exploring that, particularly the British, and some of the American ones as well.
It has led to such expense, in the first place. In the second place, some researchers are giving up research. Research has been terminated under threat. There is now economic targeting of people who invest in research. It is a problem that needs exploration. I do not have an answer as to the kind of bill required, but I know there have been efforts at that. I can send some you some material. It is a problem, and that is why the researchers feel any diminution of their legal standing, or opening things up for private prosecutions, is threatening.
Senator Pearson: People from the Department of Justice thought that was unlikely to happen. We are not creating new offences; we are just creating new penalties for existing offences. I would be interested to know if you have any experience of this kind of prosecution.
Ms. Borwein: There have been a number of these prosecutions in the U.S. and in Britain that I can think of offhand.
Senator Pearson: What about in Canada?
Ms. Borwein: Yes, we had one at the University of Western Ontario. A private prosecution was laid when the solicitor general was not prepared to do it. It went into full court. It was very expensive and demanding for us, while being a huge public relations opportunity for the animal extremists. They did not win the case, but they got a lot of free publicity.
Mr. Andrew R. Tasker, Associate Dean, Graduate Studies and Research, Department of Biomedical Sciences, University of Prince Edward Island, Atlantic Veterinary College: I have no personal experience of private prosecution, but as a medical researcher, I am constantly aware of the threat of people with firmly held views in opposition to what I do. They will make statements in the press, possibly pursue frivolous prosecution or misinterpret the intent of what I do. I think it is safe to say that is in the forefront of the minds of all researchers in Canada and throughout the world. It is part of the rationale behind some of the recommendations that the committee has heard, making reference to established standards that fully recognize that any use of animals in medical research, teaching and testing must be done under the highest ethical standards and scrutiny. That scrutiny includes not only members of the scientific community, but also members of the public. In fact, the animal care committees of each institution in the CCAC program include public representation to bring forward that perspective. Reference to that standard as being appropriate for judging whether what I do is a legitimate scientific inquiry that stands a substantial chance of leading to benefits for humans or animals, along with that scrutiny, should be sufficient. As a medical researcher, I should feel confident that having passed that test makes me, not immune from prosecution if I stray beyond those bounds, but safe if I am acting within them, as recognized by the government and courts of Canada.
Senator Pearson: Thank you for the clarification. I would love to ask you about the Harvard mouse, but I will not.
Senator Jaffer: You have raised some very interesting points that will be food for thought once you have left.
I want to clear up a few misunderstandings. This is not under sexual offences, it is a newly created separate part called ``cruelty to animals.''
Ms. Borwein: That was changed.
Senator Jaffer: We are living with this. For your information, if it were under ``sexual offences,'' we would be more worried.
Ms. Borwein: It was at one time and then it was amended.
Senator Jaffer: When was the private prosecution?
Ms. Borwein: I believe it was 1984.
Senator Jaffer: I know you are not a lawyer. However, since then, in the last year or so, we have had Bill C-15B that sets out how private prosecutions are to be conducted. It is difficult now to pursue private prosecutions. Your concern is not as grave as it was in 1984.
Ms. Borwein: It may be true that the concern is not as grave. However, it is there. We consulted a leading lawyer in this matter, Mr. Earl Cherniak, who fought the original case too. He has continued to take an interest in this. He told us that it is not a watertight situation and that we have reason to worry.
Senator Jaffer: Another matter I wanted to raise is that all of the panellists have talked about pain. When I look at the bill, I read that the offence has been defined as ``unnecessary pain'' and not as ``pain;'' however, later on it defines ``unnecessary pain.''
I have great respect for the work that you do. Please correct me, Mr. Gauthier, if I am wrong, but even in your guidelines, you talk about ``unnecessary pain'' and ``without lawful excuse.'' That would not be anything different from what the bill sets out, would it?
Mr. Gauthier: The term is very general and is not actually clear.
For example, a member of one of our animal care committees that has been reviewing a protocol on pain study would hear an explanation from the scientists on how they intend to do the work or from the veterinarians on how they will try to mitigate the pain. Then, the informed committee representatives could make the decision with others on whether to approve the use of the animals. You would have a relative background with which to consider the word ``unnecessary `` in this case. It is necessary, in relation to the studies and improvements in human health, to understand the process. You would have a framework, which we do through our system.
However, the individuals sitting on the jury, for example, would not have had the benefit of all that experience. They would be asked, very likely, according to the second part of the test, to try to understand the view of society and to make up their own set of standards by which to judge the case. That would be extremely difficult and would create an uneven implementation of the proposed legislation on a case-by-case and province-by-province basis.
The first part of the test includes the word ``lawful.'' In some provinces, including British Columbia and Quebec, for example, it would not be, because they did not adopt a specific act to regulate the use of animals in science at the provincial level. All of the provinces have adopted an act on animal welfare. However, only six of them adopted legislation with respect to the lawful use of animals in science. That is the first point. One could say, therefore, that the ``lawful'' use is not present in those provinces.
The other point is the justification of the means in view of the objective to be reached, and in view of the social priorities. In order to be able to do that kind of study, you really need a set of standards that are already recognized. These are complex, ethical decisions that you have to make.
If you try to recreate an animal care committee, with no expertise on board, each time you judge a case, it will make the implementation of this bill difficult, if not impossible. This is why we are saying, without imposing anything on their discretion, at least provide the courts with useable, established guidelines by which they would be able to interpret the bill when it talks about, for example, ``an accessory.'' I briefly explained that we have five levels of categories of invasiveness. They would have a framework against which they could make their own judgment.
This would be more necessary at the investigatory level if the officers who do the investigation have no such guidelines. They could use a personal definition of what is ``necessary'' or ``unnecessary,'' and put a case together on that basis and lay the charges. We want to prevent that from happening.
Even if the researchers or the users are proven not guilty, by the time the case is finished they are probably out of business already, because they have lost their reputation. These things protect not only the animals but also good science — science that is socially acceptable. We need both of those and we need guidelines, which is an issue that does not require an amendment to the bill. We have been living with guidelines and implementing them for 34 years. This is very effective.
In fact, it raises the standards. We have 2,000 people, including 500 public representatives, making informed decisions on the ethical use of animals in all of our committees across the country. It works. It provides a good framework against which to compare the case before you.
Senator Jaffer: Mr. Gauthier, from what I understand, you are saying that the bill can stand as is; however, we should ensure that there are guidelines.
Honourable senators have the ability to recommend, in observations to the minister, and you are recommending guidelines. Is that correct?
Mr. Gauthier: Yes, exactly.
Senator Jaffer: Mr. Best, I understand that you recommend guidelines also; however, you are also recommending the re-inclusion of colour of right as legal justification. Is that correct?
Mr. Best: That is right. We certainly share the concern that all the other witnesses, I believe, have expressed about the danger of frivolous prosecutions. That is very much an overriding concern.
I should say to honourable senators that when the board of directors of the Association of Universities and Colleges of Canada considered this matter, and that board is comprised of university presidents, it was indicated to them that justice department officials felt that they were really not particularly at risk of these kinds of prosecutions. I believe it is fair to say that our board was not comforted. There was a strong concern that they could face this kind of harassment prosecution — frivolous prosecution. I heard your comment about the improvements in Bill C-15A in respect of the screening process that is involved.
Again, honourable senators, we are not entirely comforted that that necessarily eliminates the possibility of such prosecutions. It is only a step in the right direction. However, given the subjective language in some key portions of the bill, there is, in the absence of guidelines indicating how to interpret it, a real concern that there will be different interpretations from one jurisdiction to another. Furthermore, as I understand it, charges laid by enforcement officials such as peace officers, including representatives of a variety of bodies such as humane societies, are specifically excluded from the rigorous screening requirements that were put in place in Bill C-15A.
Again, the concern about the possibility of frivolous prosecution or harassment prosecution remains very much alive, as you have heard. It certainly was by our members.
That is why we are concerned that guidelines issued by the Ministry of Justice make the link to the Canadian Council on Animal Care guidelines.
On the matter of the amendment, there is still concern that the protections or defences currently available to researchers in the event of a prosecution may not be there under the bill as it is structured. That is why we have proposed an amendment that would carry over at least the content of the current statutory exemptions in Part XI to Part V.1.
Senator Beaudoin: I am interested in the constitutional aspect of the issue. The Alberta legislation is under property and civil rights. I am not certain, but I believe they at least have legal support.
However, we have criminal law at the federal level, which, of course, has been generously interpreted by our courts.
It is within the jurisdiction of the Parliament of Canada. However, I do not think we can go further than that.
When we legislate in criminal law, we do that in the statute, not in the regulations, unless it is a question of details. A crime is a crime. It has to be in the act itself. Whether it is cruelty to animals or possession of drugs, for example, under the residual power, you need support, and the support of a crime or a criminal act is obviously criminal law. If you do that in a statute, and if you say in a statute the pain has to be evaluated, I have no problem with that, except for the issue of precision. A crime should be styled precisely. A murder is a murder. Fraud is fraud.
I instinctively react when we are talking about regulations. They can be changed by an Order in Council. They can be changed by a group of ministers. The cabinet can change them.
Parliament has the right to enact laws on crimes. A delegated power, like that of ministers of the Crown, and the variation from one province to another, which I heard about a moment ago, goes pretty far, in my opinion. There is a prima facie problem of constitutionality there.
If you do that in the statute, that is all right. Leaving a certain latitude to the courts is also all right. However, that is all. In this place, honourable senators have to be very precise.
Do I understand, then, that you want to proceed by regulations?
Mr. Best: No. To clarify, senator, we are not talking about regulations. We are suggesting the issuance of guidelines to indicate how the Minister of Justice would suggest that peace officers or Crown prosecutors should interpret some of the language, which, as I say, is fairly subjective in very key places in the bill, when deciding whether or not to pursue a prosecution.
I believe there are precedents for the issuance of such interpretive guidelines. Our suggestion, and I believe the Canadian Council on Animal Care's suggestion, is that those guidelines specifically reference the guidelines of the council to help peace officers and Crown prosecutors in deciding at that initial stage whether or not to pursue it when a private prosecution has been initiated.
Senator Beaudoin: However, the crime itself is federal, in the Criminal Code itself. The procedure is federal. A province may lay charges. The administration of criminal justice may be provincial. However, here we are concerned with the federal statutes. The procedure and the way in which we prosecute are certainly within the ambit of the power of Parliament.
You say that the minister may give guidelines. Does that mean that he may vary them from time to time, or that they would vary from one province to another? That, to me, appears to go quite far. I believe that the court could easily come to the conclusion that since the competence of Parliament is based on criminal law, the criminal infractions or crimes are to be defined in the statute itself.
I am a little afraid of your guidelines. Who will write them? Is it the minister? The deputy minister?
Mr. Gauthier: Senator, there are indeed precedents in parallel with what we are trying to do here. Justice Canada, in collaboration with the provincial governments, has published guidelines for police and Crown prosecutors on criminal harassment, which was added to the Criminal Code in 1995. They published these guidelines in 1999, and they were developed to respond to the needs of police and Crown prosecutors in the effective enforcement of the provisions of the Criminal Code relating to criminal harassment.
Senator Beaudoin: Has it ever been challenged in court?
Mr. Gauthier: I am not a lawyer, senator. So far, I do not believe so.
[Translation]
Senator Nolin: This is a highly complex crime. There are two mens rea involved, two states of mind, that of the victim and that of the accused. It is a highly complex crime. We have been called upon to simplify it, but we have not succeeded.
[English]
Senator Beaudoin: I raise the debate generally speaking. However, you said we tried to do it. Did we not succeed?
[Translation]
Senator Nolin: Mr. Gauthier has indicated that directives have been sent out to Crown prosecutors and police forces, which will have to implement this act. These are rather like the Revenue interpretation bulletins in connection with taxation.
[English]
Senator Beaudoin: If it were only related to the charge itself and how to proceed, I would accept that. I do not have any problem with that.
[Translation]
Senator Nolin: That is it.
[English]
Senator Beaudoin: My problem is with the substance. When you say ``guidelines,'' I do not think that they should vary from one province to another. That would be bad legislation. However, if it is only a question of how we do that in practice for the Crown attorneys and provincial administrators; that is different. It would be all right with me if they did it with the concurrence of the provinces. However, if it is in the substance itself, then I have very serious doubts.
It is like the evaluation of pain. I agree that it may be difficult. However, just because it is difficult, that does not mean that we should it aside. This is not the first time that we have had difficulties in defining a crime as such. Sometimes it is difficult.
I can recall when, in one of our committees, we studied murder for compassionate reasons for two days. We left it out because we did not have sufficient time. However, we will have to do it one day. I always said that. We will have to do it.
Mr. Tasker: Senator, I am not a lawyer either. Clearly your expertise is vastly different from mine.
However, on the issue of different interpretations in different jurisdictions, part of the rationale for referring to the well-established guidelines of the Canadian Council on Animal Care is that this is, in fact, a national program. This is a program in which all of the universities currently involved in animal experimentation and medical research voluntarily participate. For that reason, it is not only a national standard; it is a standard that the entire Canadian medical research community understands. It is one with which we are used to dealing. We understand what the rules are within the CCAC guidelines. In order for me to conduct medical research, or for any of the researchers in my facility to conduct research on animals, we must adhere to the guidelines published by the Canadian Council on Animal Care and regularly updated by that organization.
We understand those. We recognize that the safeguards in place are based on expert opinion and public consultation, and that these are the rules. In fact, the essence of our argument is that if we are doing bona fide research, which has substantial potential to benefit humans and animals, according to national guidelines espoused by the Canadian Council on Animal Care, then we accept that those are the rules under which we operate. At different jurisdictional levels, in different parts of the country and at different levels of expertise, that removes the possibility of different interpretations of what constitutes unnecessary intervention, unnecessary use of animals and unnecessary pain or suffering.
Ms. Patricia Kosseim, Senior Ethics Policy Adviser, Canadian Institutes of Health Research: Mr. Chairman, unfortunately, I am a lawyer, so I have no excuse for dancing around the question.
The guidelines the CCAC are proposing are a creative and complementary mechanism consistent with the objectives of the bill. If we look at the precedents for this, we see that it was truly a federal, provincial and territorial effort. It was a uniform effort that resulted in signing on to these guidelines. All the ministers of justice adopted them.
In fact, it is a creative, non-legislative way of uniformizing the standard. Even in those provinces where that standard is not reflected in statutory law, there is, I believe, general national agreement that that would constitute the common law standard. I anticipate that a federal-provincial-territorial effort to make reference to CCAC guidelines would not result in variation. In fact, I believe there would very quickly be uniform appreciation of the CCAC's standards as reflecting a national standard.
Therefore, as long as there is agreement by all jurisdictions, it could actually help to uniformize that standard and facilitate the implementation of the provisions.
Senator Beaudoin: What about Quebec and the Civil Code, if it becomes common law practice?
Ms. Kosseim: Do you mean ``common law'' in the sense of reflecting the general standard of care?
Senator Beaudoin: Of the whole country.
Ms. Kosseim: I do not know if Quebec has statutorily implemented CCAC standards. In any event, it would be ``la personne raisonnable'' in Quebec who would also require that same inquiry in to what the reasonable standard is.
Senator Joyal: My first question concerns the definitions in the bill. In the provisions of clause 182.1, as you are aware, ''animal'' means a vertebrate, other than a human being, and any other animal that has the capacity to feel pain.
I was preoccupied by the second element of the definition, that is, an animal that has the capacity to feel pain. If you look to the Alberta Animal Protection Act, the term ``animal'' is defined in a very broad context. Section 11 of the act states that an animal does not include a human being. It is a very general definition.
I understand that you were consulted by the Department of Justice on the various aspects of improving or changing animal cruelty legislation; is that correct?
Mr. Gauthier: Yes, the Department of Justice consulted the council on this matter in early 1999.
Senator Joyal: Was the definition as proposed in this bill part of the consultation process, or is this something you learned when you read the bill as printed?
Mr. Gauthier: I only learned of how they finally implemented the discussions we had when I read the bill. The recommendation of the council was to move forward with the first part of the definition, namely, for vertebrates.
We mentioned that the council also includes within the species covered by our guidelines, our regulations and our program, cephalopods, which is one species within the invertebrates. However, that is the only one. Researchers use them because their nervous system is readily accessible and highly developed. The U.K. followed the same model. These are the only invertebrates that we included in our program.
I am afraid to say that Department of Justice officials expanded on our rationale to include ``animal able to feel pain.'' When I appeared before the standing committee of the House of Commons on the same question, I said that the CCAC ran a study among zoologists over a period of seven years to see if there was a consensus on what species within the invertebrates can actually feel pain, whether they should be included in our program and so on. We were unable to find a consensus.
It was also quickly realized in discussions outside Canada that there is no consensus within the scientific community about which species of invertebrate feel pain, and at what level. Very little knowledge has been accumulated in that regard. There is nothing like what we have on vertebrates. I conveyed that information to the House of Commons as well. What is crystal clear here is that it covers vertebrates.
We cover only one species of invertebrate. However, anything beyond that is contentious. You could bring two zoologists who would have different opinions on a specific species into court.
Senator Joyal: In other words, there is an element of the definition that we are asked to legislate that is a grey area scientifically speaking. Am I right in saying that, or am I stretching it too far?
Mr. Gauthier: It is not a point that we made in our brief. However, it is a scientific reality.
Mr. Tasker: Senator Nolin addressed this issue a little earlier. In fact, it is a grey area, you are quite correct. In the medical research community we usually refer to something called ``nociception'' as opposed to pain. In other words, it is the ability to perceive an external stimulus as being noxious. The reason we make that distinction is because pain is an integrated, subjective evaluation of a set of situations. That is why some people around this table might find a particular stimulus to be what they would describe as painful, while others might simply say it is annoying. It is a subjective evaluation.
In fact, there are very rare pathological states, but which nonetheless are well documented, in which humans cannot perceive something as being painful. When you extend that to the host of other species that we are looking at, especially those that are incapable of expressing what they are feeling by any means we can understand, it becomes very difficult to determine what is painful and what is not.
If I can digress for a moment, this is an issue of which we were very much aware a number of years ago in the context of, for example, pre-verbal human infants. There was a commonly held belief in some quarters that because babies were not expressing any sort of coherent evaluation of a situation as being painful, that they were not in fact feeling pain. That is clearly not the way we think now. We have found other ways to measure it.
When it comes to other species, it is very difficult to make that evaluation.
Consequently, the option that CCAC has adopted is that if the basic neural mechanisms that will allow an integrated evaluation of different noxious stimuli might permit some sort of perception that something is painful, then there is a reasonable likelihood that that animal can feel pain. I apologize if that was a little technical. However, the essence is as follows: Let us err on the side of caution, because we are not entirely sure which animals can feel pain and which cannot. At the same time, we need to recognize that an integrated nervous system is required, that a series of different events, contexts, environments and inputs must be put together in order to perceive something as painful. Hence the definition to which I just referred. We are fairly confident that that applies to all vertebrate species. We are reasonably confident that that applies to more highly evolved invertebrate species, such a cephalopods — octopus, squid and that kind of thing. We are very unsure when talking about other invertebrate species.
Ms. Borwein: I think it is also necessary to say that included in the definition of ``animals'' are single-celled animals and jellyfish. Organisms that do not have an integrated nervous system do not have a cluster of nerve cells to form a brain. It becomes very tricky.
Senator Nolin: You will have to elaborate on the word ``tricky.'' Do they react to a stimulus?
Ms. Borwein: Reacting to a stimulus is not the same as feeling pain. All animals, if they are to survive, have to be able to sense their environment and use what we call ``aversive behaviour,'' the ability to move away from unsafe situations. That is very different from pain. When I say ``tricky,'' I mean it is vague, unknown, contentious and hard to define.
Senator Joyal: I do not want to take too much time. I am not trying to put words in your mouth, but I think the point has been made that there is an element of the definition that is uncertain, scientifically speaking. Certainly, when I read the bill, I saw some difficulty in trying to legislate it to be as clear as possible, especially in the scientific domain, because you are addressing the scientific aspect of research on animals.
My other question is in relation to the animal care guide. Do you have a copy with you?
Mr. Gauthier: Not with me. It is volume 1 of the CCAC guidelines. We would be pleased to provide it.
Senator Joyal: I would like it to be circulated to all honourable senators, because I believe it is an important element that is not well-recognized by the Canadian public. Researchers have some kind of code of ethics in relation to research on animals. I believe it will become increasingly important to have that clearly recognized in legislation. As was said previously, there are evolving standards in Canadian society, and generally in the Western world, on the use of animals in research. It is important. I was struck last week when I learned from the TV news that the genetic code of a mouse is the closest to the genetic code of a human being. They finally broke down the DNA code of a mouse. Now, there are probably 25 million mice being used around the world for research. Of course, there are people who lobby on behalf of the status of mice. I have nothing against that personally, as everyone has his cause. However, I feel that there will be a renewed interest in research on mice in relation to human beings. As you said, it is a question of balance.
For the greater good of improving knowledge through medical and scientific research, I accept the idea that an animal could be submitted to stress and pain. I have no hesitation on this. The evolving standard related to this bill is greater recognition of the humane treatment of animals. They are not human beings. In my opinion, this bill does something particular; it takes the animal out of the property list and puts it in a different category. I think Dr. Borwein mentioned that in her presentation. It is important that the animal care guide be part of the standards that a court has to appraise in determining if this is unacceptable.
I like reading the Alberta Animal Protection Act. I like section 2(2), which is tied to the prohibition against causing distress. It says in subsection (1) that no person shall cause or permit an animal of which the person is the owner or person generally in charge to be or to continue to be in distress. Subsection (1) does not apply if the distress results from an activity carried on in accordance with reasonable and generally accepted practices of animal management, husbandry or slaughter.
I like that section, because it provides a test. It provides the test of the practice. We could, certainly, in such a test say ``accepted practice of animal management in the research and scientific community.'' Then, of course, your animal care guide would be of use in establishing the standard, as we could say — I see our Honourable Senator Adams — ``accepted practice in the traditional way of hunting and fishing in the Aboriginal territory.'' Then the community itself would follow and police the standards, and it would be the same for the Aboriginal people. I do not like the fact that there is no specific framing in this bill of criteria to appraise how various communities that use animals normally develop ethics and recognized practice.
Referring to the AUCC brief, when you propose that the animal care guide be referred to, I think it should be referred to generally as ``normal and reasonable practices followed in the scientific and research community.'' Perhaps it should not be mentioned in specific terms, because the guide can evolve. As you said yourself, you have included in the guide an invertebrate that you feel is a proper inclusion.
It seems to me that the bill would have the kind of flexibility needed to protect and recognize the practices of the scientific community or the practices of the Aboriginal community, which, I think, is a concern of many members around this table.
Mr. Best: Certainly, it seems to me that a change along those lines would be consistent with the recommendation we are making and would not preclude the need for the kind of guidelines that we are asking for that would be issued to make clear what, in that case, the standard applied in the research community is and which has been developed over 30 years through the CCAC process. That kind of change would be consistent.
We have not at this stage argued for such an amendment. Early in this process, when the bill was first tabled in Parliament, we thought about such an amendment and openly talked about one that would make reference to the CCAC guidelines, or at least to the fact that such guidelines exist.
It would not be in inconsistent with the position that we have taken.
At this stage, we have backed away from that. There has been a real reluctance to accept such an amendment throughout the history of this process. As a bare minimum, we need the Ministry of Justice to indicate to prosecutors and police that there is a standard that is applied in research and that there are guidelines. It is a rigorous process, and the universities adhere to that.
If someone comes forward to pursue a private prosecution, police and prosecutors should look first to see whether the research in question has been conducted in accordance with those guidelines. If it has, it should weigh very heavily in the decision on whether to pursue the prosecution.
For us, it is most important that, consistently across the country, the prosecutors and police know that those guidelines are there and that that is how they should proceed. If it takes an amendment to the bill to do that, it would certainly strengthen it. However, at a minimum, we want an assurance that that will happen. Therefore, we are recommending that the committee seek an assurance that the guidelines would be provided to police and prosecutors.
Senator Baker: Senator Beaudoin raised an interesting point. I have one question regarding it.
The Crown prosecutors have a policy guideline book. The last time there was a federal amendment to the Criminal Code was when the stricter provisions were added to section 234 on impaired driving. After you were caught twice, the penalty was imprisonment. The penalty increased steadily for each arrest.
They did not state in the Criminal Code how much time had to expire between offences for it to be deemed a second offence. The directions were given to the prosecutors. You will probably find that it is five years in each province. In other words, the direction to the prosecutors was that if five years had elapsed since the first arrest, the next would not draw the penalty of a second arrest.
If the first offence took place 10 years ago, then you file a report when the person is found guilty. As you know, when a person is found guilty, the judge asks the Crown prosecutor whether there is a prior offence. The Crown prosecutor then determines his response based on a policy guideline.
However, that is at the discretion of the Crown prosecutor. How many judges have questioned in recent years why a Crown prosecutor should make criminal law based on a guideline?
You are trying to address the point in a courtroom at which the judge wonders about the intent of legislation. What were the intended guidelines when Parliament passed the law?
One of the most common references for judges is the regulatory impact statement that accompanies the regulations. The other is to refer to what the minister said at second reading or, as Senator Beaudoin said, third reading.
Do you mean this to be in a handbook for prosecutors, as they have had in the past? I read some of the cases, and they are running into difficulties with this in the courts.
Perhaps Senator Joyal is correct that something is needed in the Criminal Code, or the minister should make the intent of the proposed legislation as it pertains to those sections very clear when it is gazetted.
Would you entertain that as a solution? Would you consider recommending to the minister that he stipulate the intent? We would send the bill back to the House of Commons, and perhaps have a hearing with the Minister of Justice to state the intent of the proposed legislation.
I do not think you meant specifically to put it in the prosecutors' handbook. As you stated a moment ago, your wish is to try to demonstrate the intent of Parliament to follow these guidelines.
Ms. Kosseim: The precedent that was referred to in respect to the criminal harassment provisions included guidelines that were agreed to by the federal, provincial and territorial ministers of justice. That is one clarification of the example to which we were pointing.
Second, I would submit clarification is required that would distinguish a situation for prosecutors in deciding what is under criminal law. The guideline would point to what is the standard. It would not be the prosecutors deciding the interpretation of those provisions. It would be a reference to CCAC guidelines that are nationally—
Senator Baker: Where would the reference be? Where would the guideline be?
Ms. Kosseim: In the guidelines for the various jurisdictions in interpreting the offence provisions, there would be reference to the existence, at the very least, of the CCAC guidelines, and their national and international recognition as a reasonable standard of care and use of animals in research.
In that way, the guidelines could continue to evolve. They would not be frozen in time. It would be a creative, non- legislated mechanism to bring the guidelines to the attention of the courts and prosecutors. It would be a way of creating a judicial reference to these guidelines without necessitating any legislative or regulatory change.
In that respect, I had submitted earlier that this is a creative mechanism that this committee might like to consider.
Senator Baker: It would not necessarily be in a prosecutors' handbook.
Senator Joyal: I do not know if you have a copy, but I would like you to put pages 2 and 3 of the bill side by side on the table. Look at subclause 182.2(1). It reads.
Every one commits an offence who, wilfully or recklessly,
(a) causes or, being the owner, permits to be caused unnecessary pain, suffering or injury to an animal;
Subclause 182.3(2) reads as follows:
For the purposes of subsection (1), `negligently' means departing markedly from the standard of care that a reasonable person would use.
I like this because ``negligently'' is qualified. The problem is that ``unnecessary pain'' is not. I would like to add to clause 182.2 that ``unnecessary pain'' does not apply if the pain results from activity carried out in accordance with reasonable and generally accepted practices of animal management and husbandry in the scientific and research community.
In other words, there would be some exclusion in the definition of ``unnecessary pain,'' in the same way as we test ``negligence'' by saying that a reasonable person in such a position would not behave like that. ``Unnecessary'' must be evaluated by the standards of the milieu in which the animal is found. That may help to alleviate some of the concerns of the scientific and Aboriginal communities, because then the community standards would be the standards by which to evaluate whether it is unnecessary pain. I think there is a discrepancy in this bill between the offence of negligence and the offence of causing unnecessary pain.
I raise that, Mr. Chairman, as a possibility for how we could define that. We want to protect animals. I have no problem with that. We do not want to do something that is unethical in the science or research community or according to Aboriginal standards. That may be a way to answer those concerns properly without diminishing the impact of the bill.
We are trying to get the attention of the minister on the record, as Senator Baker has said. The intention of the minister is good, but it is better to have the standards of the milieu as a criterion in a prosecution, because this is provable in court. The scientific community can appear in court and describe the practice of the milieu, or Aboriginals can state that this is how they have been hunting or fishing for 100 years. That introduces an element of objectivity. With regard to the intention of the minister, as my mother would say, the road to hell is paved with good intentions.
Senator Cools: We are learning from these members of the academic community that we must proceed very slowly and carefully, because some of the clauses in this bill are not as clear as we have been led to believe.
I must say to the witnesses that I have great sensitivity for much of the work that they do, because there was a time in my life when members of my family wanted me to be a scientist. When I was very young, many people thought I should have been a scientist, and I used to do a lot of work with people who were experimenting with animals. I assisted in many an operation on many a dog.
We must be pretty sure-footed as we proceed, because it is a principle of enacting criminal law that we ensure that we direct the statute to the particular mischief it is trying to correct, without catching many other innocents or creating many other problems along the way. The net should be very precise.
I give great consideration to everything you have said. However, my question emanates from the business of ownership, when something is owned. We are all God's creation. Historically, animals have been property. There are many contradictions in this bill, even as it is currently drafted. It seems to me that it is mixing principles.
My question deals with the issue of pre-born children. The definition at the beginning of the bill says:
...animal'' means a vertebrate, other than a human being, and any other animal that has the capacity to feel pain.
I think that definition is inadequate, and it repeats itself.
Can pre-born children killed at seven or eight months of gestation feel pain, and are they ``animals'' under this bill? This is something we do not talk about in our society, which is all the more reason to raise it.
I have done much study on the beginnings of child welfare, in this country and in Europe. There were individuals who used to go around picking up babies and children that were just thrown away. I once read an account from the 1890s about someone who counted, one night in the downtown area of Toronto, 700 ``street urchins,'' as they called them.
It is not well known that the movement to protect children was related to the movement to protect animals. At one point in my life, I read a fair amount on this subject. Some of the same human beings who were concerned about the children sleeping on the streets were concerned about horses that would collapse and perish on the streets under their burdens.
I have always been curious about the connection between the protection of children and the protection of animals as it has occurred historically. There are a large number of people in this country who express much concern for unborn children. There are large numbers of people who think that is a ridiculous concern. I am not in that group.
Some of you here are very proficient scientists. I think we all have enough background in science to know that this definition is written very subjectively and is woefully inadequate. However, have any of you an opinion on this definition, as written? If you do not, or if you want some time to think about it, I can appreciate that and you could get back to me on this.
Does an eight-month pre-born child fall under this definition? The Criminal Code tells us what a human being is, that being basically a child born in a living state.
Sooner or later, this particular huge ethical challenge will have to be met.
Ms. Borwein: If I may briefly comment on that. Babies are now born and can survive from 25, 26 weeks on. I have grandchildren, twins, born at 26 weeks, and because of the enormous skills of the medical domain and medical research they have come through that remarkably well. There is also no doubt that human beings develop complex nervous systems. That is in passing.
I also wanted to mention that in my reading of the bill, although it has moved the animals out of the property section, it refers several times to ``owners'' and ``owning.'' Therefore the concept is certainly there.
Senator Cools: We will have to straighten that out. I refer to this ``alleged'' Bill C-10B because we are not clear on whether we have a bill before us. However, parts of the bill seem to be elevating certain animals to a higher status than property, yet in other places in the bill, it clearly refers to ``owners.''
We all know that all a person can own is property. We cannot own a human being, for example. We certainly can own animals. There are many animal owners around this table. However, we will need to sort out the inconsistency of what I would call the conceptual framework of the bill. It is an inconsistent conceptual framework because there are other places in the bill where it refers to the custody and control of animals. ``Custody and control'' is definitely human language in this instance.
Coming back to the development of human beings, you say that at 26 weeks, obviously the unborn have well- developed systems.
Ms. Borwein: Yes.
Senator Cools: However, I was just trying to see if I could get an answer to the question relative to this particular clause in the bill. If you wish to think about it, I understand that the subject matter of the bill is rather explosive.
The Chairman: Senator Cools, perhaps we could take a moment to see if any of the witnesses wish to comment on the issue. If not, then perhaps we can just move on. Did you have another question?
Senator Cools: It would be interesting. We do not often get such a distinguished panel of academics all in one shot.
The Chairman: Does anyone on the panel care to comment?
Mr. Gauthier: I would like to understand clearly what you mean by the question here.
Is the honourable senator concerned about the possibility that a human being who is not born yet would be classified as an animal?
Senator Cools: I would be happy if they would be. According to this proposed legislation, they would get some protection. I would be very happy. I believe many people would be happy. Many of these questions are beginning to weigh on many in the community.
However, I was just wondering, conceptually and legally, as that is scripted, whether or not the unborn, at whatever level, would be allowed the same protection as an animal.
Ms. Borwein: My understanding is that this bill is structured to deal with cruelty to animals. I believe that in the broad world of zoologists, and people in general, the word ``animal'' is not used for human beings.
Senator Cools: Right.
Ms. Borwein: That is the context in which this is framed. To comment further on your notion of owning, a person can buy a dog from a breeder and then decide at some stage to sell the dog. That makes a profound difference in how we look at things. If a person is too poor to look after it or is moving away or something, he or she can take the dog to a pound to be sold or put down. That cannot be done with grandmother, no matter what the inconvenience.
There is a profound difference in the proper societal view of ethics regarding people.
Senator Cools: I quite agree with that. I just feel that the drafting of this bill has not been sufficiently thought through.
[Translation]
Senator Nolin: I would like to understand one of your key principles. On page 7 of your brief you state the following in the last paragraph:
II. The prevention of cruelty to sentient animals —
Given the testimony we have just heard, this phrase is far broader than pain alone, it is a matter of a being's sentient nature.
Referring also to your principle IV, in which you voice support of the protection of all animals, why the restriction to vertebrates alone? You are assigning to Crown Prosecutors the virtually insurmountable task of defining what is an acceptable or unacceptable pain level. Why not say ``all animals with the exclusion of human beings''?
To put the question differently, what kind of animals do your members use? Rats and mice, yes, but what about insects?
Mr. Gauthier: Yes, there are no statistics and it does not fall under our programs, but there are researchers, zoologists, who use insects or amoebas.
Senator Nolin: To what type of animal does your code of ethics apply? Does it apply to all animals or only some?
Mr. Gauthier: Our code applies to 30 species. That is why we say it applies to vertebrates and one species of invertebrates, the cephalopods. We cover vertebrates and cephalopods but not all animal species.
Senator Nolin: When we debated this bill, I spoke about cooking lobsters. Some found that comical, but there was a serious element to it. Do we cause lobsters suffering by the way we cook them? I asked that because I had in mind one of those urban legends which says that a lobster must be boiled or cooked in a certain way rather than another, so that it does not suffer.
That is why I am asking all these questions. Why stop with the vertebrates because they have a central nervous system? Why not include all animals?
What is the intention of this bill? Is it humans' attitudes to other creatures? So, in the case at hand, is it pain in animals?
This element must be taken into account. What is of the greatest interest to me is your first element. Why have you set aside your fourth principle and created the whole problem for the Crown Prosecutors?
Mr. Gauthier: The fourth principle dealt with cruelty toward all animals, whereas our mandate is limited to animals used for research, testing and teaching. This bill addresses animal cruelty first and foremost and was aimed at ensuring that lost and ownerless animals are not subjected to cruelty.
Our support for protection of all animals is set out in principle IV.
Our mandate really addresses the use of animals for scientific research, testing and teaching. Our present mandate is connected with the main species used in scientific research in Canada for testing and teaching purposes, is restricted to those animals and does not extend beyond the scientific use of animals.
The bill is extended to all uses of animals and mainly to cruelty. The use of animals in institutions for scientific purposes is so regulated that there are a minimum of 2,000 pairs of eyes keeping a watch over this in Canada. The monitoring carried out in our sector is so well done that it is rare for cruelty to occur.
This bill addresses out and out cruelty to lost and stray animals in need of protection. This is its context. Our mandate is limited to species used for scientific research because this is our field.
Senator Nolin: In the exercise of your profession or area of expertise, we are attempting to protect your rights. As Senator Joyal has said, the defences in place in the Criminal Code ought to be replaced by the new Part V.1, in order to protect those who have the right to cause animals suffering and to ensure the greatest of respect in so doing. That is the only thing we are doing at the present time. This is a very specific area. It is not cruelty. Are animals' rights affected? Certainly. In certain situations they lose their lives, or their appearance or physiological integrity is affected. Their being is affected. We are trying to ensure that your rights as researchers are sufficiently protected by the way these offences are set out. That is why I ask this.
You operate on certain principles and I understand that these principles concern your area of expertise. That I accept. Why the limitation to vertebrates? I can understand that may be easier.
Mr. Gauthier: I explained that just now. Everything we do in the council relates to science. When we decided to extend our authority or our programs to other animal species — invertebrates in large part — this must be based on scientific evidence.
In this case, referring to other vertebrates, you will recall that for a seven-year period, a committee of zoologists and researchers working with vertebrates could not reach a consensus on their inclusion because their level of sentience is understood as sufficiently evolved to be covered by our program. This is the scientific consensus that guides all of our actions. Any advancement must be based on scientific evidence. There was no scientific consensus on that evidence. It addresses the way in which science is to be carried out. The evidence is there for the vertebrates and the decision was reached not to cover these species according to the scientific knowledge of the day and the scientific consensus.
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Senator Joyal: I believe that Senator Nolin has made a very important point. I wish to stress it, because this is an area where much is untold and unknown, legally speaking. When we start to talk about the rights of animals, it is a very grey area in terms of the philosophy of the law. Honourable senators could conceivably apply article 182(3) to a living plant, or flowers, if we fail to provide suitable and adequate food, water or shelter, and care for it negligently. If I am the owner of a Christmas plant, I can decide tonight to leave it outside. It is going to freeze and will be dead by tomorrow. I could leave it by the radiator. It will dry up with no water.
Senator Nolin: That is basically my argument: the human attitude.
Senator Joyal: I am coming to what you are saying.
If I am the owner of a cat or a dog and I do that, according to article 182(3), I am guilty of a serious offence.
Senator Nolin: That is right.
Senator Joyal: My question is: Do the rights exist in relation to the animal, or does the crime exist in relation to the humane identity?
This is a very serious, deep and broad issue in relation to the living, in relation to animals, or everything that is not a human being.
I believe that is an interpretation that can be read between the lines of this bill. That is why we are wrestling with it, along with the Aboriginal people and the scientific community. Up to a certain point, we understand quite clearly that we want to regulate the conduct of human beings. You should not drive your car while you are drunk. You should stop at a red light. We try to regulate human conduct.
However, there is another dimension when it comes to animals. This is why we want to avoid inadvertently creating something that will lead to something else later on because the principles are not sufficiently clear.
Senator Jaffer: Honourable senators, we are also trying to regulate the conduct of human beings here by telling them how they should treat animals. This is also about that matter. It is also about our attitude towards animals. We do not see them in the same way as plants. I believe that this is also regulating human behaviour.
Senator Joyal: It does regulate human behaviour; however, in relation...
Senator Nolin: One of the witnesses wishes to testify.
Ms. Borwein: You have raised an extremely important point. If I may divert you for a few minutes, an American philosopher who went to a major research institution in order to study what he called the ``moral status'' of mice wrote an important article. What he found is that research institutions must have veterinarians, laboratory animal nurses, institutional animal care committees and a whole cornucopia of care. That is very carefully scrutinized because, he said, it is called a ``research mouse.'' However, if one of those mice escapes and starts running around the building, it instantly becomes a pest, and then there are no rules. You can get rid of it anyway you like, including setting up a mousetrap or hitting it on the head. He said that if you have a boa constrictor, what we call an ``obligate carnivore,'' it has to have animal flesh. If you are keeping it as a research animal, you must throw it a mouse now and again so it can survive. There are no rules for that because that is a ``food mouse.'' If you give away one of your mice to be a pet in someone's home, there is no scrutiny of or regulation about that. He went on like that; you understand the point. However, in the end, he said how we treat a mouse depends on what we call it.
Senator Watt: I would also like to take a crack at this issue. I am one of the Aboriginal persons in question, from the North.
This proposed legislation really worries me. If I do understand the issues, then whether we realize it or not, I believe that we are creating a new phenomenon in Canada, perhaps for the very first time in the world. I do not know. The reason I state that perhaps we are creating a new phenomenon; we are creating new human beings. At the very least, they would have equivalent rights to a human being.
Honourable senators know that an animal does not have the same capacity for thought as a human being. The human being has used the animal for the purpose of consumption.
If we no longer consider the animal as suitable for the purposes of human consumption, then what are we doing here?
Senator Pearson: There is nothing that says that.
Senator Watt: Hold on a minute. You will have your turn later, Senator.
Is this your interpretation — that we are creating new phenomena in Canada? In other words, new human beings, or making animals more closely linked to human beings. Is that your assessment of it?
Ms. Borwein: I do not know if I would go that far. There is no doubt that some of the language in the bill, and part of the intent, is to raise the status of animals toward what the animal rights persons call ``personhood,'' and to eventually give them some sort of legal standing in court. I believe that that is significant. As we know, animals eat animals to survive, and they do not cook them first.
Senator Watt: That is right.
Ms. Borwein: We eat animals to survive. If I can parody the song, ``Eating People is Wrong,'' we do not eat people. There is a huge difference among the perceptions that society has. That does not mean that we can use animals in our care in any way we please. As Senator Joyal said, we have to promote the humaneness of people towards what is in their care, keeping things in proportion. People will look after their dogs much more carefully than they will a roundworm creeping through the soil in their garden. There is an enormous gradation. I believe that it means we must be careful. However, we must not go overboard. We must understand that difference.
Senator Nolin: Exactly.
Senator Cools: That is what we are talking about.
Senator Nolin: That is why we are concerned with every word of that bill. We have to ensure that we do not cross that limit, which we would regret in the future.
Ms. Borwein: Right.
The Chairman: I would like to thank our panellists for taking the time to be with us this evening.
The committee continued in camera.