Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 10 - Evidence for May 15, 2003
OTTAWA, Thursday, May 15, 2003
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-10B, to amend the Criminal Code (cruelty to animals), met this day at 10:57 a.m. to give consideration to the bill.
Senator Gérald-A. Beaudoin (Deputy Chairman) in the Chair.
[English]
The Deputy Chairman: In the absence of Senator Furey, I will preside over the meeting.
Yesterday, we began our clause-by-clause consideration of Bill C-10B. We have adopted some amendments to clause 2, but we suspended our final decision on that clause. We carried clauses 3, 4 and 5. We agreed to adjourn before completing our consideration of the bill in order that members could take time to reflect on the amendment to clause 2 proposed by Senator Joyal.
Although we did not discuss it yesterday, there was also a possible amendment from the Aboriginal senators. We will start with the amendment proposed by Senator Joyal.
Honourable senators have the text. We have left out (a), (b) and (c) and we have debated at some length the text that was proposed by our colleague. I will now give the floor to Senator Joyal and the debate will continue.
Senator Joyal: Mr. Chairman, we have circulated, in both languages, the text of the amendment as rewritten following the proposed changes yesterday that were agreed to around the table.
I would like to point out that this amendment confirms, in clear terms, what the assistant deputy minister of justice, Mr. Mosley, from the criminal division, has been stating to this committee. In his opinion, Aboriginal people's traditional practices in hunting, fishing and harvesting are covered by the proposed legislation.
There is, however, an element in our discussion, as has been stated by many witnesses around this table, and was debated among ourselves, that we are dealing with an issue where standards are evolving.
We heard from professors from various universities, and Senator Andreychuk was the first to comment on the fact that the condition of animals is evolving, and this bill will confirm that. Again, the Department of Justice witnesses have clearly stated that.
Our preoccupation is to ensure that traditional hunting and fishing practices of the Aboriginal peoples of Canada, as confirmed by the Constitution Act of 1982, will be protected, however the standards change or evolve through the years.
Honourable senators will understand that this amendment essentially confirms those traditional practices and nothing more. The last two lines of the proposed amendment state:
...any pain, suffering or injury caused is no more than is reasonably necessary in the carrying out of those traditional practices.
What does that mean? That means that when an Aboriginal person hunts, fishes or harvests, generally animals, and causes pain or injury in so doing, that injury, pain or suffering can be no more than what is traditionally the practice. If they go beyond what was traditionally practised, they would be subject to all the elements of the bill.
In other words, it confirms the rights of the Aboriginal people and it subjects them, at the same time, to the scope of the proposed legislation. If they go beyond that pain or suffering that traditionally they have been inflicting in the carrying out of hunting and fishing, they are subject to the obligations created for any person who fishes or hunts in non-Aboriginal territory.
It is very important to understand that. This is not an exemption for Aboriginal people from the scope and nature of the proposed legislation. It is important to understand what we are confirming at this time for the Aboriginal people. I thought that this was the intention clearly shared by many of us around this table, that in legislating against pain, suffering and injury in animals, we were ensuring that Aboriginal people, like any other person in this land, would have to accept the obligation not to inflict pain, injury and suffering beyond what they have been traditionally doing.
I would not like it to be interpreted as saying to the Aboriginal people generally — and to Canadians, of course — ``Well, you can inflict whatever pain you want, and that is it, you are exempt from the legislation.'' That is not the case at all.
Aboriginal people, even on their own territory, according to this proposed legislation, could not go beyond what they have been doing traditionally in their hunting and fishing practices.
The exemption given to them is essentially for as long as they carry out their traditional practices within their own territory. For all the rest, they are subject to exactly the same obligation as other persons under this proposed legislation.
I have worked with our legal advisers to come up with a text that is very clear, and that is why you have, in the last sentence of this proposed amendment, ``any pain, suffering or injury caused is no more than is reasonably necessary in the carrying out of those traditional practices.''
A judge seized by a complaint will have to take that into account. In other words, the judge would have to ask for the various elements in the nature of the rights of the Aboriginal people. First, the person involved in the complaint must be an Aboriginal person. An Aboriginal person is a member of one of the Aboriginal peoples mentioned in the Constitution of Canada, which are Indians, Inuit and Metis people. That is the qualification, first, of the person.
The second element that the judge would have to look at is, is this a traditional practice? I mentioned yesterday what comprises a traditional practice. Traditional practice must include at least two elements: Repetition of a conduct over a period of time — the same gesture, if you wish, over a certain period of time. We all know that in our respective cultures, we have traditional practices. Any one of us could testify about this. Is this a traditional practice? In other words, is the way of inflicting pain or killing the animal the traditional way in which that Aboriginal group has been doing so through the years? There is an element of time in tradition.
The third element is: Are we in an area in which Aboriginal people have harvesting rights? Are we on Aboriginal territory? We have to be on Aboriginal territory. I again repeat, if an Aboriginal person is hunting or fishing outside Aboriginal territory as covered by the Constitutional Act, section 35, that person is subject to exactly the same obligations as Senator Nolin or me, for instance. We are not Aboriginal persons.
If we hunt and fish on Aboriginal territory, we are subject to the proposed legislation, and we cannot inflict any pain, injury or suffering in the way that an Aboriginal person traditionally can in pursuing the same activities. That is important to understand.
The scope of the proposed legislation remains the same for any person who is not an Aboriginal wherever that person hunts or fishes, even if allowed to hunt or fish on Aboriginal territory. We understand the way these activities are circumscribed.
Honourable senators, I think these amendments cover in a clear and succinct manner the points that we have discussed around this table.
[Translation]
Senator St. Germain: I have a question for Senator Joyal.
The Deputy Chairman: I would rather start with a debate so that we can hear both sides.
[English]
Senator St. Germain: I have a question of clarification, if that is all right with the rest of the committee. This says, ``No person shall be convicted of an offence under paragraph (1)(a) if the pain, suffering, injury or death,'' but it does not say ``death'' in the second-last line. As one of the legal minds at the table, Senator Joyal, can you explain why?
Senator Joyal: Yes. That is the first thing I asked, too. The thing under consideration here is the injury, the pain and suffering. That is what we are dealing with. We are sanctioning here the fact that, in exercising one of those practices — hunting, fishing, harvesting — an Aboriginal person may inflict the pain. It is that pain that we want to exempt from the elements of paragraph (1)(a). Of course, as I said earlier on, what is sanctioned is the whole of the activities, but the test measurement is really the pain, the injury and the suffering. The judge who would be seized with this would say, ``What I have to look into is the way that the traditional practice has been conducted and the level of pain that has been inflicted in relation to the objective.''
What is the objective of hunting and fishing? It is to kill the animal. There is no doubt about that. That is the very nature of the activity. What is at stake is the degree of pain, injury and suffering that is inflicted in killing the animal. That is not killing per se. If an Aboriginal person kills an animal on his territory, he is exercising his traditional right. Here we are looking at the pain as stated in paragraph (1)(a).
Senator Jaffer: That is exactly what I was saying yesterday, and you all said to me, ``No, no, death is included.'' Now I am confused. Perhaps someone can help me. What we saw yesterday is a little different from what we see this morning. Can you tell us exactly where you read it so we can follow you?
Senator Joyal: When we had the original version of the first amendment, as you know, exemptions for other activities were proposed. We have withdrawn those different activities because we came to the conclusion that they were covered by the amendment that we brought forward to section (1)(a). You have the original text. The original text would have read, ``No person shall be convicted of an offence under paragraph (1)(a) if the pain, suffering, injury or death is caused in the course of the following activities and is no more than is reasonably necessary for carrying out those activities'' — traditional hunting, trapping, fishing, et cetera, the rest of the paragraph.
I have reworded it to put the test of the pain, suffering and injury quite clearly at the end, so that we know that this is the measurement by which there is a possibility or right for an Aboriginal person to inflict such pain and suffering in the carrying out of those activities. We could have left it exactly the way it was yesterday, but I feel that, by putting the test at the end in such a clear way, everybody reading it will understand that this is the exemption. That is where the exemption is concentrated. It is essentially what is reasonable in the traditional practices. In other words, as I stated, if an Aboriginal person, in carrying out fishing, hunting and harvesting, is inflicting more pain than is traditionally the practice, the person falls under the scope of the proposed legislation.
Senator Jaffer: I have just seen this now, but from just a quick look, in the main part of the bill, we have changed it to include ``death,'' and yet we are doing it differently here. Is there an inconsistency?
Senator Joyal: I have no problem with adding it.
Senator Jaffer: I wanted to remove it in the other one, but I was overruled. In one place we are defining ``pain'' one way, and in another we are defining it another way, and I have difficulty with that.
Senator Cools: There is no definition of pain here.
Senator Joyal: No, we are not defining pain differently. Pain is pain.
Senator Jaffer: Look at 182.1(a). The point I raised yesterday on Ménard was that we should leave the wording as it was — unnecessary pain, suffering or injury to an animal. I was overruled on that and we included ``death.'' I lost that battle and I do not want to revisit it. However, if we defined it a certain way there, then for consistency, we should definite it here the same way.
Senator Joyal: I have no problem with adding it to the last line. I mentioned the reason I did not put it there. If you hunt and fish, it is to cause death. There is no doubt about it. I do not dispute at all the element of inconsistency that you have raised. As a matter of fact, in my own drafting, I had included it because I wanted to clearly reproduce each one so that no one would say there is more there or less here.
The Deputy Chairman: So you would add the word ``death''?
Senator Joyal: Absolutely. It does not change the test, which is the important element: no more pain that is traditionally inflicted.
Senator Banks: And no ``more death''?
Senator Joyal: Exactly. That is it. Senator Banks, you just put it correctly.
Senator Jaffer: Death is death.
Senator Cools: Precisely.
Senator Jaffer: So adding ``death'' here, it does not sound right.
Senator Cools: There is no ``more death.'' The animal cannot be ``more dead'' than is necessary.
Senator Joyal: Mr. Chairman, I did not put it in the original version because of the very argument that Senator Banks mentioned. There cannot be more death than death. That is why I removed it. It is the test. The test is the injury. Again, Senator Jaffer, I think that we should not put it in, but if you feel, as the sponsor of the bill, that we should, I would have no problem. I prefer to stick to the original version.
Senator Nolin: I have two points. First, I will support the amendment put forward by Senator Joyal as long as you do not add ``death'' in the last part. In French, it is quite clear. Senator Jaffer, it adds the Ménard test into the understanding of the Aboriginal rights. It is even better than it was.
Secondly, an agreement was signed in May 1993 between the Inuit of the Nunavut settlement area and Her Majesty the Queen in Right of Canada. Article V of this important agreement deals with wildlife. It says that this article seeks to achieve the following objectives — I will not read them all. One is the creation of a system of harvesting rights, and some of us had questions about the word ``harvesting'' yesterday. These rights are, according to the agreement, subject to availability as determined by the application of the principles of conservation and take into account the likely and the actual increase in the Inuit population. The agreement confers on the Inuit rights to harvest wildlife sufficient to meet their basic needs, adjusted as circumstances warrant.
What we have in front of us is the kind of specific treaty that recognizes those rights.
It is quite clear. Senator Joyal is asking us to include in the bill a mechanism to recognize actual rights, no more, no less.
Senator Milne: Honourable senators, I have two things to say.
First, when this same issue of non-derogation clauses came before this committee in an earlier incarnation, this committee, and Senator Watt also, received a letter from the minister committing the government to bringing in an omnibus bill to clean up the derogation problem in all existing legislation and for the future. That bill has yet to see the light of day.
I know that negotiations and talks are ongoing, but those are not public. I have not seen such a document and neither has anyone else around this table. This entire discussion should be a wakeup call to the people who are here from the Department of Justice to get their act together and speed up this process.
At the time that this occurred, I gave a commitment to Senator Watt that I would support him on non-derogation rights. I have to tell you that I cannot vote against this amendment.
On the other hand, I have grave concerns about the amendment. It may, in effect, actually derogate from Aboriginal rights, and I will tell you why.
We have the Constitution at the top of the layers of law in this country. Aboriginal rights are protected in the Constitution and cannot be changed.
As soon as you start including them in a lesser level of legislation, you are actually taking away from those rights. You are, in effect, derogating from them.
I cannot vote for this amendment. I cannot vote against it. I will abstain. We do have before us — and I do not know who put it in front of me — a new clause 5 that, with a one-word change, would be a true non-derogation clause and might answer the problem.
Senator Andreychuk: As I understand it, there is still the reverse-onus dilemma in this new motion that is before us, and I would like Senator Joyal to comment on that. I have some other questions.
Putting ``or death'' in the second part of it may not be as humorous as we think. Aboriginal people hunted and harvested for many reasons, not just for sustenance. The other problem is what is sufficient for one's sustenance and when does it become a sport, which is legitimate. We should not be taking away their cultural rights, either. If you cause unnecessary death, is the quantum the numbers that you need before you reach a point where you are no longer harvesting for purposes of sustenance, but for purposes of cultural rights — entertainment, sport or what have you? There is a variation. We must not continue to talk about Aboriginals as one homogeneous group. There have so many variants and so many cultures that we have to take into account in one province, let alone in all of Canada. I am not sure whether the ``or death'' needs to be in there or not. That would be one thing.
Second, I am not a draftsperson. Yesterday, we were saying, ``Well, do you have better wording?'' I think we should have experts around the table to assist us in drafting. I find myself in a difficult position in trying to convey the intent that we all agreed to. I do not think that we are in any disagreement on what we want to accomplish, it is how do we get the words to match our intent?
The amendment reads:
(3) No person shall be convicted of an offence under paragraph (1)(a) if the pain, suffering, injury or death is caused in the course of traditional hunting, trapping or fishing practices...
And then it says:
... carried out by a person who is a member of one of the Aboriginal peoples of Canada...
Can you define ``member'' for this purpose for me? Is it a member of a traditional hunting practice; is it a band, a cultural group or a defined territory now? We know the problems we have with people being included or excluded as members of bands and treaties. I would want to know what the word ``member'' means here.
Second, it continues:
... carried out by a person who is a member of one of the Aboriginal peoples of Canada in any area in which Aboriginal peoples have harvesting rights under or by virtue...
On one reading it does not seem to restrict them. I know what you intended. You intended to say that if you had traditional rights, you could hunt within that area. However, because you are using the words ``in any area,'' you can read this to mean that if I have a traditional right, then I can hunt in any area in which there are Aboriginal peoples. I do not think that was your intent, but it is a reasonable inference and interpretation under the law. Could you answer those questions specifically?
I am having great difficulty determining what ``Aboriginal people'' should mean when we have said over and over again here that it should be determined through a consultation between those who govern on both sides, and existing rights are existing rights. How the co-management of these lands will be conducted, as Nisga'a pointed out to me, will be between those who govern the Aboriginals and the Government of Canada.
If we include this paragraph, are we doing what we have said the government is doing, that is, not having adequate and proper consultation with the Aboriginal governments?
Bill C-6 and Bill C-7 are coming down the line, in which we are attempting to determine how Aboriginal peoples will govern themselves. I have difficulty with those pieces of proposed legislation. Here we are, telling them how they will govern themselves. We have not had a face-to-face meeting with the leadership of the people. With all due respect, we have Aboriginal content here. I am grateful for that, because it makes us mindful that we have to deal with this.
I come from Saskatchewan, not from an Inuit area. I would like to know what the FSIN thinks of this. I do not think we as a committee have had a chance to find that out. The courts always say that you cannot interpret their rights; you must deal with those who govern the people.
One conundrum, and maybe one way out of it, therefore, after this comment to Senator Joyal, is that there is another motion before us, to amend Bill C-10B by adding a new clause 5 that gives me more comfort. If we put it in your proposed section, which seems to be a reverse onus, a colour of right defence for Aboriginal people, then maybe the other portion would be a signal to the courts that if your motion is in any way a diminution of section 35, this other motion before us would override it.
Senator Joyal: I will take your points in order.
First, are we putting the onus on the Aboriginal person? My position is that we are not because any prosecutor will have to ask questions before tabling the complaint. The prosecutor will have to look into the reading of those sections of the Criminal Code and ask questions. Am I dealing with an Aboriginal person? Am I dealing with a traditional practice? Am I dealing with hunting or fishing on Aboriginal territory?
Those are the preliminary questions. It is not as if we would take the Aboriginal person and put him or her in the court to answer to a charge.
That is not the way the administration of justice works, as you know. Part of the obligations put on the prosecutor will be to look into the proposed legislation and come to a conclusion. If the conclusion is that that person is not an Aboriginal, but is doing traditional hunting and fishing, he falls under the scope of the proposed legislation. If he is an Aboriginal person, but is inflicting more pain or injury than is traditional, he will have to defend himself.
The onus falls on the person only at the end of the entire process of putting together the investigation, the study of the case and the conclusion that there is no defence. It is not as if we were seizing people and bringing them into the court.
There is the full process, as Senator Nolin well explained yesterday. It is part of the obligation of the prosecutor to determine if the person is covered by the proposed legislation, because it is a defence.
Therefore, it is not essentially only the Aboriginal person who will have to establish that. It will be done at the level of the preliminary investigation. The prosecution will read the proposed legislation.
It is only if the prosecutor comes to the conclusion that the person is responsible under the act that proof would be assembled. Therefore, I do not think that we are putting all the onus on the shoulders of the Aboriginal person per se.
The second question is, ``Who is an Aboriginal person?''
Senator Andreychuk: Not a person, you are using the word ``member.'' The point I am making is that you did not say ``no Aboriginal person,'' you said ``member.''
Senator Joyal: Let us refer to section 35.2 of the Constitution Act. The Aboriginal peoples of Canada include the Indian, Inuit and Metis people. That means that there are different kinds of Aboriginal people. That is very clear.
What does the Criminal Code say when it mentions ``Aboriginal''? In section 718.2(e), it reads:
All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
Senator Jaffer: It does not use the word ``member.''
Senator Joyal: Allow me to continue. What is an Aboriginal offender? It is a person, first. To be an Aboriginal person, one must be Indian, Inuit or Metis. The person has to be a member of one of those three groups mentioned.
In other words, you have to be part of one of those groups because the rights to fish and hunt belong to those groups.
The rights do not belong, in theory, to Aboriginal people. They belong to one of those groups. We are dealing with a crime here. We are not dealing with anything other than a crime.
It is very serious. People who claim the exemption have to show that they are members of one of those three groups mentioned in the Constitution Act. It is not only the fact that you are an Aboriginal. It is the fact of being a member of one of those three groups. That is why it is important to maintain consistency with the Constitution.
Senator Andreychuk: With respect, I am not disagreeing with any of that. That is precisely what I want to protect. You are using the word ``member'' as opposed to an ``Aboriginal person,'' and ``member'' implies a qualification to get into the group. The Constitution does not say that you have to be a ``member.'' It does not say, ``A member is...'' It talks about ``people'' being —
One of the dilemmas is to determine who is a member of a certain reserve. Who is a member of a certain tribe? Who is a member of a certain category? Determining membership is the subject of much debate in the Aboriginal field.
How you are using the word ``member''? We almost have to define what we mean by ``member.'' Would not one way be to say ``a person who is one of the Aboriginal peoples?''
Senator Joyal: Could you repeat that, Senator Andreychuk?
Senator Andreychuk: I am thinking off the top of my head.
Senator Joyal: Who is an Aboriginal?
Senator Andreychuk: — who is one of the Aboriginal peoples of Canada. It could be something like that. When you use ``member,'' it is membership in an association, a tribe or of a reserve.
Senator Joyal: Your proposal neither widens it nor restricts it. I would not quarrel about this per se because the intention is to restrict it to the Aboriginal people who have treaty rights, the Aboriginal people who can hunt in areas other than where they have ancestral rights. Your proposal does not change that insofar as they have existing rights under the treaty.
I would not quarrel with that as such, but if you want to avoid the interpretation of membership in one of the three groups, as I say, the code mentions ``Aboriginal offenders.''
The code mentions Aboriginal offenders for a specific reason. The sanction is for anywhere in Canada. It is not restricted to Aboriginal territory. The provision given in 718 is not an exemption if you commit an offence in Aboriginal territory. It is for an offence committed anywhere. Here we are dealing with territorial, limited rights.
Senator Pearson: I want to make a comment to Senator Joyal about the nature of the bill. The entire bill is not about animals; it is about people's attitudes to animals. It is important that we keep that in mind.
We are not giving animals rights. We are looking at people and how they respond to animals. That is what evolving.
My thinking is like Senator Milne's. We all agree on the intent. We do not want Aboriginal peoples who have been involved in their traditional practices to be caught up in ways that are inappropriate. That is what we do not want. I am just trying to find the language that will stand up in court.
However, I have a problem. I want to make sure that if we make an amendment, it is one that actually does the job. If it is one that will be argued with or rejected, then we will not have gained anything.
This is why I am more comfortable with the language in the second suggestion. You would have to rewrite your motion, Senator Joyal. We would have to say that no Aboriginal should be convicted. That raises the issue of whether we are making an exemption.
I do not know how the courts would look at this as a Charter issue.
I feel more comfortable with the other wording, which is more general, but which I thought would cover the case. I found Senator Andreychuk's arguments very interesting and rather persuasive. We do not want to be defining Aboriginal rights in a piece of proposed legislation without consultation. That is an interesting point. Whereas the other wording we can safely use.
I am in a similar dilemma to Senator Milne, in that I do not vote either against or for.
Senator Joyal: I totally agree with you that this bill is about ruling the conduct of people; it is not about the rights of the animals. If anyone has been quite vocal in this committee on this issue, I think it is I. I do not think this amendment deals with giving formal rights to animals in the way we understand it under our Constitution in Canada. That is clear.
On the second suggestion, I understand that it seems to be much simpler to have two lines rather than so many. I agree with you when you look at it that way. Let us leave all that to the court, because if we include such a long derogative clause in there, we send all the issues back to the court. That is what happens with this general derogation issue.
Here, we are saying that we respect the objective of the bill, which is to reduce pain, suffering and injury to the animal. That is essentially the difference between the two. The long one would say to the judge, ``Do whatever you want, let the court interpret it the way it wants, we do not want to hear about it.'' While here we are being more circumscribed in what we authorize the court to do.
Senator Pearson: I am back to the issue of whether or not you specify an exemption, or whether you do something similar to what we discussed earlier, that is, determining whether an offence has been committed under this part. The court may consider the fact the person was engaged in a traditional Aboriginal practice. In that case, you are not using the phrase ``Aboriginal person,'' and that would bring more specificity to it while avoiding Senator Andreychuk's concern that we should not be defining Aboriginal rights.
The Deputy Chairman: We have to take a vote at a certain point this morning.
Senator Nolin: She raised a very valid point. I want to answer your question.
Senator Cools: Before us is one issue. Senator Milne and Senator Pearson have both referred to another motion that is not before us. The only way we can be discussing the second one is if, somehow or other, they both are before us.
The Deputy Chairman: You have a good point, because right from the beginning, I came to the conclusion that we will have to say ``yes'' or ``no'' to the proposition of our colleague, Senator Joyal. The other possible amendment will come to a vote only if this proposition of Senator Joyal is not adopted.
Senator Cools: However, it is being discussed. We cannot discuss something that is not before us. Maybe we should proceed a little more informally, agree to discuss both of them and see if we can arrive at some consensus, because you cannot defeat the one on the strength of something that is not before us. I am happy that this point has been raised, but it is not currently before us.
The Deputy Chairman: What I can say at this stage is that those two texts, the text of Senator Joyal and the text that we prepared, both refer to section 35. It is clear-cut. If this amendment is accepted, the other one will not even be put to a vote. We cannot deal with the same thing twice. In that sense, it was my intention to circulate the other amendment. Perhaps we should do that before we take the vote.
Senator Cools: To the extent that it has entered into the discussion accidentally, it has to enter into the discussion formally.
The Deputy Chairman: I will not object to that as acting chair. It is obvious that the other amendment was proposed also. However, it will not be put to a vote if this amendment is accepted.
Senator Cools: I agree with you. What I am trying to say is maybe we should have a way of formally acknowledging that there is another one. Perhaps we do not have to move it; but we can introduce it and circulate it for consideration, and then we can discuss the matter.
The Deputy Chairman: Since it is an amendment that was prepared for the Aboriginal senators, I will give the floor to Senator Watt.
Senator Cools: I am saying that the discussion can go forward in the context of the two choices. After that, we move to make a formal motion on whichever one we like better. That is a better way to deal with this.
The Deputy Chairman: I would like to have the opinion of Senator Watt on this.
Senator Watt: I would like to go back to the point that was raised on whether we are adequately consulting with the Aboriginal people. This issue has been around for quite some time, as you know.
The Deputy Chairman: For five months.
Senator Watt: I have consulted with the people, including before Christmas. They know what the subject matter is. In fact, I was supposed to do a radio program that I keep putting off because I do not know what to say to them yet. They are putting pressure on me and saying, ``What is happening? You disarmed us once and now you are taking away our tools. What is going on here? What are we going to have left?'' This is the talk within the Inuit community.
I have also made an attempt to inform the Assembly of First Nations on this issue. They were not aware of it because they were not consulted previously. They are aware of it now, however.
I will remind honourable senators who had reservations that I do appreciate that you see the sensitivity of it and do not want to put the Aboriginal people in more of a predicament than they already are. I appreciate the comments that you have made.
However, do you remember a very general amendment that I proposed on the floor of the chamber? Do you remember the time I was ruled out of order by the Speaker? He did not even give me an opportunity for rebuttal. That is what I am afraid of here. It will be said that you have nothing to hang your hat on because it is not specific enough. It is arguable, but the fact is that is the way it was already ruled. I just do not want to take any chances on that because it was on almost the same subject matter, and we are still wrestling with this. This was long before Christmas and it was supposed to be dealt with by now.
The Deputy Chairman: It was the whole Senate and it was a different —
Senator Watt: If you make it a part of this, maybe that would be a different story, because you are dealing with a specific amendment relating to the issue we are discussing on Senator Joyal's amendment. If we include this in there, to give it double protection, what do I care if you want to put a double protection in there? However, I do not think it will fly. That is the problem.
Senator Cools: Since we can now freely talk about the two, maybe what is required is a sort marriage of the two. Senator Joyal's amendment — even if it has one or two wording problems that we could fix — was quite narrow.
He was proposing this particular amendment to protect people in the area of hunting and fishing practices. His proposal did not address all Aboriginal rights under the Constitution, but only rights in respect of the subject matter of the bill.
The other proposal, from the Chairman, is far broader and speaks to all Aboriginal rights under section 35.
The Deputy Chairman: — in the bill that is before us, Bill C-10B.
Senator Cools: No, I am sorry, but the act before us will not be Bill C-10B; it will be the Criminal Code.
The Deputy Chairman: The answer is clear-cut, ``in this act,'' which is Bill C-10B.
Senator Cools: No, it is not ``in this act'' in Bill C-10B. It is in the Criminal Code, although I am not the lawyer.
Senator Jaffer: Senator Cools is right about that.
Senator Milne: That was the change that I was going to suggest when we came around to discussing this issue. We should narrow it down to ``this part,'' not ``this act.''
The Deputy Chairman: I would obviously agree with that.
Senator Cools: Have you circulated it?
The Deputy Chairman: There is no doubt about it in the French version: ``cette loi.'' It cannot be anything other than Bill C-10B.
Senator Nolin: I have two points. On that point specifically, when we studied the military justice system we made that error, of not being specific in our reference to ``this act.'' In that case, ``this act'' became the global act in which those amendments would be introduced. That is why the review introduced by the minister would be of the act or the justice system. We will see what we end up with.
I want to answer an important question raised by Senator Pearson.
Yes, this bill speaks to individual human behaviour. That is exactly what I was referring to when I said to Senator Jaffer earlier this morning that Senator Joyal's amendment introduced the Ménard test with the Aboriginal rights. It could have been similar to the blanket amendment proposed by Senator Beaudoin, referring to rights under section 35. Senator Joyal is adding the human behaviour — similar to the Ménard decision. Justice Lamer said that it was not only the lawful act of killing a dog because a contract was received from the City of Ottawa to do it; the way in which the dog was killed was not legal because there was unnecessary pain.
In the last part of the amendment, Senator Joyal is adding the human behaviour element requested by Ménard. We recognize the rights of Senator Watt and Senator Adams, but in addition to that, we are narrowing the exercise of those blanket rights. Senator Joyal's amendment is better than saying nothing. The amendment allows the rights, but how the rights are exercised will count.
Senator Adams: It is true. I received Senator Nolin's agreement earlier on the hunting rights. I have a card here from the Nunavut land claim, which confirms my right to hunt. I do not need a licence. I am able to get a general hunting licence and I do not have to pay for it. I need to track every year how many caribou I kill or how much fish I catch and send the form back to NTI. Senator Watt also received one.
Over five years ago, we dealt with Bill C-68. Mr. Allan Rock, Senator Watt and I discussed gun control. Mr. Rock partially agreed to recognize the Aboriginal people. In the end, when asked if he was still concerned about the Aboriginals, he said that we are all Canadian; we are all human; and we are all the same. That is what he said to us.
The Deputy Chairman: We had the debate on the exemption and it is closed now.
Senator Adams: After that passed, and if we do not have an amendment, we will be the same as everyone else. You and I will be no different. In other words, I would have no more right to hunt. If this bill were passed, a person married to an Inuit would be charged. Right now, the NTI allows the passing of the licence to harvest and hunt to a white person married to an Inuit and with a family. With the bill passed, such people would be charged, even living in Nunavut with a family.
The Deputy Chairman: We will take a vote on this because we are obviously divided. First, we will hear from Senator Banks.
Senator Banks: As you know, I am a temporary member of this committee. I would hope that, because you are dealing with matters relevant to the Criminal Code and people's rights, you would be careful not to follow the example of the committee that designed a camel when it set out to design a horse, and given the discussion, that great care will be taken over any amendment of this bill.
I have two questions, and I seek legal advice. We are now properly discussing both of the amendments before us.
An Aboriginal person, however it is expressed, can carry out these practices in any area in which Aboriginal peoples have harvesting rights. The other amendment properly before us says, in essence, that any person who is a member of the Aboriginal peoples of Canada can do so in any area in which Aboriginal peoples have harvesting rights.
The Deputy Chairman: You are reading the same thing.
Senator Milne: That was the other one from yesterday.
Senator Banks: Forget the non-derogation clause. I am worried about Senator Joyal's amendment. Senator Adams has a card that permits him to hunt certain animals in a specific area. He would not agree that a member of a Cree Nation from Southern Saskatchewan could come to his area and hunt those animals.
As it presently stands, this amendment says that any Aboriginal person in Canada can go into any area in Canada in which any Aboriginal person has any rights and shoot any animal. I do not think that we want to do that. I am right about that?
I seek instruction on a more general question. The bill, as I understand it, says that it is an offence under the act for someone to wilfully or recklessly cause an animal unnecessary pain, suffering or injury. That means a person can cause necessary pain, suffering or injury — by implication.
I know that you already considered this. However, proposed section 182.5 goes further than anything else in the Criminal Code and says that, ``For greater certainty, subsection 8(3) applies in respect of proceedings for an offence under this Part.''
Senator Milne: That was replaced yesterday during clause by clause.
Senator Nolin: It does not exist any more.
Senator Joyal: Thank you.
The Deputy Chairman: Are we ready for the vote? We must take a decision.
It is moved by Senator Joyal that Bill C-10B be amended as indicated this morning. Senator Joyal may read the final text for us.
Senator Joyal: I would move:
That Bill C-10B be amended in clause 2, on page 3, by adding after line 10, the following:
``(3) No person shall be convicted of an offence under paragraph 1(a) if the pain, suffering, injury or death is caused in the course of traditional hunting, trapping or fishing practices carried out about a person who is one of the Aboriginal people of Canada in any area in which Aboriginal people have harvesting rights under or by virtue of existing Aboriginal or treaty rights within the meaning of section 35 of the Constitution Act, 1982, and any pain, suffering or injury caused is no more than is reasonably necessary in the carrying out of those traditional practices.''.
The motion reads as follows in French:
Que le projet de loi C-10B soit modifié, à l'article 2, à la page 3, par adjonction, après la ligne 13, de ce qui suit:
«(3) Nul ne peut être déclaré coupable de l'infraction visée à l'alinéa (1)a) si la douleur, la souffrance, la blessure ou la mort est causée pendant l'exercice, par une personne issue des peuples autochtones du Canada, de pratiques ancestrales, de chasse, de piégeage ou de pêche dans une zone où les peuples autochtones possèdent des droits de récolte découlant des droits existants — ancestraux ou issus de traités — au sens de l'article 35 de la Loi constitutionnelle de 1982, et que la douleur, la souffrance ou la blessure se limite à ce qui est raisonnablement nécessaire à ces pratiques ancestrales.».
The Deputy Chairman: That is the motion before us. Is it agreed?
Some Hon. Senators: Agreed.
Some Hon. Senators: Abstain.
Senator Cools: Let the record show that some senators wish to abstain.
Senator Milne: I abstain.
Senator Cools: It is important to Senator Milne that the record show that she abstained.
Senator Beaudoin: We should call the roll.
Senator Cools: We need only record it.
Senator Beaudoin: Abstain.
Senator Andreychuk: Abstain.
Senator Baker: Agreed.
Senator Banks: With apologies, Senator Joyal, I am opposed.
Senator Joyal: You have to apologize to the Aboriginal peoples, senator, not to me.
Senator Cools: I support the proposal.
Senator Hubley: I support it.
Senator Jaffer: No.
Senator Joyal: Agreed.
Senator Milne: Abstain.
Senator Nolin: Agreed.
Senator Pearson: Abstain.
Senator Stratton: Abstain.
Ms. Marcy Zlotnick, Clerk of the Committee: Yeas — 5, Nays — 2, Abstentions — 5.
The Deputy Chairman: Carried.
Senator Andreychuk: I know that some have voted against it and a comment was made. I am not sure if it was intended for those of us who abstained, but I do object to the inference that if we did not vote for it, that somehow we are not concerned about the Aboriginal peoples. It is precisely for that reason that I abstained.
I want to seek legal advice. This is the first time in this committee that we have considered a motion without having sought drafting advice beyond our members, particularly when there have been so many variations in interpretation by some very eminent lawyers around this table.
Therefore, no comments should be made. We will have the opportunity to reflect on this and decide whether we are in favour of or against it on the third reading.
No aspersions should be cast on any of us about our commitment to Aboriginal people, because we can check our records. Whether this is new- or old-wave paternalism, I have never questioned Canadian politicians' sincerity in helping Aboriginal people. However, sometimes, in wanting to help, we have hindered them. By abstaining, I will be certain of time to reflect.
The second point of order is that we received a message to continue with this matter from the house. There was some agreement that the first paragraph of the message was within the traditional rules and practices of the two Houses. The second, where the House disapproved of what the Senate did, is totally inappropriate.
Therefore, I would suggest that when we report back, there be a short observation that we are doing so on the basis of paragraph 1 alone — we need not comment on paragraph 2 — and continue the dialogue. We should be very careful not to accept the precedent of the House disapproving of us.
The Deputy Chairman: There will be observations anyway.
Senator Joyal: I would like to certainly seize the first opportunity, Mr. Chairman, to apologize if my remark was hurtful. I have the greatest respect for the capacity and right of all senators around this table to express their wishes. I have never doubted the commitment of senators, especially Senator Andreychuk, who has always spoken in the interest of Aboriginal peoples — and I have been on this committee for five years.
Senator Banks has also been expressing interest in Bill C-5. I have read the transcripts of all the sittings of the Standing Senate Committee on Energy, the Environment and Natural Resources.
I apologize to my colleagues if I hurt them. It was not my purpose.
Senator Nolin: I wish to apologize if I, in any way, hurt any of my colleagues. I believe strongly in the appropriateness of this amendment.
Senator Jaffer: Can the committee look at whether the House has jurisdiction in that which Senator Andreychuk mentioned?
Senator Joyal: We have to finish adopting the bill.
The Deputy Chairman: There is a technique that we have to follow. It will be difficult to report today, but we will try to do it. There will be observations, and we will refer to the story.
Senator Cools: We have to find out what the observations are.
The Deputy Chairman: We will have to make some observations and we will take into account what you have said.
Senator Milne: We should continue with the vote on the bill and get that over, and then talk about the observations, because I have something to add to what Senator Andreychuk said.
The Deputy Chairman: Is it your pleasure to adopt clause 2 as amended?
Hon. Senators: Agreed.
The Deputy Chairman: We dealt with clauses 3, 4 and 5 yesterday. We are now returning to the beginning of this bill, to the short title. Shall clause 1, the short title, carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall the preamble carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall the title carry?
Hon. Senators: Agreed.
The Deputy Chairman: Is it agreed that this bill be adopted as amended?
Hon. Senators: Agreed.
The Deputy Chairman: Is it agreed that the bill be reported as amended?
Some Hon. Senators: Agreed.
Senator Cools: Before we go on to that part, I think you were talking about observations. Perhaps we should discuss the reporting of the bill, and whether members want any observations, before we take that decision.
The Deputy Chairman: On this question, I would like to hear Senator Jaffer and Senator Milne.
Senator Jaffer: We should make a very strong observation that the Minister of Justice needs to look at the commitment he made to Aboriginal peoples. A commitment that is made here to the committee should be followed up; it should not be taken lightly. If we can please get the exact wording of the commitment that the minister made — because I was not sitting in committee then — and then make sure that that is a very strong observation.
Senator Milne: I quite agree with that. It is absolutely in order for this committee to do that. However, I have some concerns about Senator Andreychuk's observation. I agree with it completely, but I have some concerns about mentioning it in our observations. It seems to me that this is outside the purview of this particular committee, and the Speaker has already ruled on it. It was not something that was referred to this committee, and I do not really think that we should be putting it into the observations on this bill.
The Deputy Chairman: You do not want that in the observations?
Senator Milne: No.
Senator Joyal: I share the views of Senator Milne. I think that it would be appropriate to discuss the point raised by Senator Andreychuk when we are on third reading, before the bill is sent to the other place.
The message of the House of Commons is not referred per se to this committee. What is referred to this committee is this document, essentially. Therefore, I agree with you. Perhaps I would have some comments to propose to honourable senators on the message of the House of Commons, on the basis, of course, of the ruling of the Speaker, as Senator Milne has said; but I think we should raise that in third reading.
Senator Andreychuk: I will not press for that to be included in observations. I already have it on the record; and I will take every opportunity, through the process of this bill, to keep noting that paragraph 2 is an inappropriate message from the House. Paragraph 1 was entirely appropriate and within their discretion. It is noted on the record.
The Deputy Chairman: This bill is unique, in a way. It is the only one that has given birth to a certain precedent. Obviously, the chair will raise it; I will also. We will speak about this in the Senate, because this is the first time that we are creating a parliamentary precedent. I intend to speak a good deal about this because it is very important.
Senator Joyal: The House has said there is no precedent in its message.
Senator Banks: As a point of order and for the record, I took no offence whatever, speaking personally, from anything any senators here present said. However, I wish the record to show that the reason I voted against this amendment had nothing to do with any lack of concern, as Senator Watt and Senator Adams know, for the rights of Aboriginal peoples, but rather, unless I completely misunderstand it, because it contravenes existing treaties. I am afraid that it does, and I do not think that we wanted to do that.
The Deputy Chairman: That is why you have the right to vote against it.
Senator Banks: I wanted honourable senators to understand the basis on which I voted against it.
Senator Cools: I wanted to add to what Senator Andreychuk had raised. I believe Senator Joyal was speaking for a lot of members of this committee when he said that you are held in very high esteem. I just wanted to say that. In respect of observations —
Senator Andreychuk: May I just interject? Unfortunately, we did not have this meeting scheduled, and I agreed to another commitment, to take the chair at twelve o'clock. I did not personally take offence. I took offence on behalf of all the parliamentarians in Canada, both provincially and federally, who do care deeply about Aboriginal rights. I do not want us to be divided, any more than I think it is appropriate when the Aboriginal communities are divided. I think we have common cause here, so let us stick together. It was not about me personally; it was about lawmakers. Thank you for caring anyway.
Senator Cools: I just wanted to let you know that Senator Joyal was speaking for a lot of people.
Chairman, we keep talking about observations, but if we are going to make some, I certainly would like an opportunity to see these observations and to pronounce an opinion on them. In the other committees that I have served on, the observations did not just spring out of the air. They sprang out of committee discussion.
I am very interested in knowing what these observations will be, and I would love to see a copy of them. I do believe the committee should approve of them before they move forward in reporting to the chamber. That is the first point.
The second point is, contrary to what has been said here, the pronouncements in one of the paragraphs in the message from the House of Commons directly affect this committee. It is this committee, after all, that divided the bill, or asked staff to do the dividing of the bill, but in fact, the committee spent very little time on that. Very little time was actually spent by the committee looking at the clauses of the bill and trying to decide how the bill should be divided and how it should hold together. Therefore, I think it is extremely relevant, because the major decision on the division of the bill was made in this committee.
I quite agree that it is the subject matter that concerns us all, and that perhaps people can speak to it at different stages of the proceedings. However, the fact is, despite what you say, Senator Banks, the tone of that paragraph of the message was condemnatory and negative. It is not something that we should ignore or allow to be ignored.
In respect of the response that the Speaker ruled on it, the Speaker did not rule on that part of the message per se. The Speaker ruled on Senator Lynch-Staunton's point of order. There is a slight difference. The Speaker, hopefully, would have passed no judgment on some of that.
In any event, on the narrow issue of the observations, are we reporting with observations; and if so, what should those observations be?
The Deputy Chairman: We would have to go in camera for that. Having regard to all the points that have been raised, I wonder if we should not wait for the final report to the Senate?
Senator Nolin: Tomorrow?
The Deputy Chairman: The report will be in the house on May 27.
I wish to thank you very much.
Senator Cools: If consideration is given to observations, I would certainly like one of them to be that we really should hear from the minister — and that the committee suffered a terrible loss in not hearing from the minister.
The Deputy Chairman: The Library of Parliament prepared a confidential draft.
Senator Cools, if you want to see it, we will distribute it. The committee will proceed in camera, of course.
The committee continued in camera.
Upon resuming.
The Deputy Chairman: Is it agreed that this bill be reported as amended and with observations?
Hon. Senators: Agreed.
The Deputy Chairman: Carried.
By the way, Senator Cools, the minister came before us, but there were no questions. I remember that.
Senator Cools: There was no debate. He did not answer questions on Bill C-10A either. What happened was that the minister came; you will remember he sat in the chamber. The bill was divided. Suddenly, we were told that there was a meeting and he was here. We came running over.
He was here. My recollection is that he answered questions from no one.
The Deputy Chairman: Nobody asked questions.
Senator Cools: That was because we had an instruction from the Senate to divide the bill. The committee, in its wisdom, thought that it should divide the bill and then have the minister back to talk about the different clauses of the bill.
Senator Adams: Did he refuse to come?
Senator Cools: In fact, we have put no questions to the minister. It may not be important to some, but it bothers me deeply. I have been in the Senate for a little while, and this whole business of ministers not coming or coming only once is quite new. I can tell you that we used to have ministers come at least twice, and it was not uncommon to see the minister in the committee room, observing and listening to the proceedings.
Maybe it does not matter, but I think it is important. I can tell you that perhaps a minister can have this bill passed without answering any questions from the Senate or other concerns, but that was unheard of 20 years ago.
The Deputy Chairman: We take note of that, Senator Cools.
Senator Cools: I will certainly repeat that in the chamber, plus this minister was in the news. There was a controversy —
Senator Jaffer: Are we in camera?
Senator Cools: Are we in camera?
The Deputy Chairman: No.
Senator Cools: Well, this is public. This minister was on the record in public many months ago. I do not know if he said it, or if commitments were made to rural caucus members, but it was well reported in the newspaper that this minister was going to ask the Senate, or approach the Senate, or members were going to approach the Senate, to make certain amendments.
The concern with this bill has always been that, yes, we uphold the idea that people shall not be wantonly cruel to animals, but in the process, we should not damage or hurt innocent Canadians involved in the business of hunting and trapping, or caring for animals as researchers or in the scientific community, and so on and so forth.
In any event, it cannot be argued that the minister properly put the case for this bill before this committee.
The Deputy Chairman: That being said, we will now adjourn the meeting.
The committee adjourned.