Your Honour, I am rising on a point of order. Until now, Senator Klyne has been talking about the scope of the bill, what the bill does and what the bill is intended to do. Now he is going off on a tangent about bringing every animal that Noah had on his ark into this when, of course, that is not what the bill is about.

I think this is the appropriate time to speak about my point of order regarding Bill S-15, An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act.

I’m cautiously optimistic, Your Honour, that this time the decision reached by this chamber will be based on facts and rules. I sometimes have the feeling that our rulings here are like the Tower of Pisa — always somewhat leaning in the same direction.

I feel that our precedents should be followed, Your Honour, notwithstanding the fact that some people believe that Justin Trudeau, in fact, created a new Senate, erasing 150 years of history. Your Honour and colleagues, we in the Conservative caucus will continue to put forward motions and points of order based on the Constitution of our country and, indeed, the Rules of the Senate of Canada.

I was surprised yesterday to hear so many colleagues tell me that I was right on my point of order in regard to this bill needing a Royal Recommendation and, thus, it needed to be started in the other place.

One senator told me I hit it out of the park. Those were his words: I hit it out of the park. Then yesterday, he voted against that hit out of the park. Somehow, he went out to left field way up there somewhere and brought the ball back into the park. I found that very strange.

Nevertheless, colleagues, these issues are not a popularity contest. They are about applying precedents and rules.

My point of order is regarding the amendment made by the Standing Senate Committee on Legal and Constitutional Affairs during its examination of this bill, which Senator Klyne was just getting into. The amendment I am referring to was moved, indeed, by Senator Klyne, and he already called it by the right title, the “Noah Clause.” Although the amendment is much too lengthy to read into the record, I will do my best to summarize it for you by quoting some of Senator Klyne’s testimony at the committee.

When introducing the amendment, Senator Klyne said the following:

The first part of the “Noah Clause” would establish in the Criminal Code an executive authority for the federal cabinet to protect, by order, additional wild species in the context of captivity to prevent animal cruelty and/or to protect public safety. If a wild species is protected in this manner, such as lions or tigers, the same legal framework would apply as it does for elephants and great apes. . . .

And yet the bill is about elephants and great apes. Senator Klyne went on to say:

To prevent animal cruelty and/or protect public safety, the Governor-in-Council must consider whether the species can survive in captivity based on factors such as natural behaviour, relevant characteristics and needs, evidence of harms in captivity, and risk to public safety. . . .

Your Honour, I submit to you that although it is well‑meaning, this amendment is out of order because it is beyond the scope of the bill as approved by this chamber at second reading, which I will demonstrate in the following remarks.

As a House of Commons publication amending bills at committee and report stages notes:

Second reading and reference to committee is a debatable motion on the general principles of the bill. Once the motion is passed, the principle and scope of the bill are fixed. . . .

On December 9, 2009, Speaker Kinsella noted the following:

. . . an amendment moved in committee must respect the principle and scope of the bill, and must be relevant to it. It may generally be helpful to view the principle as the intention underlying a bill. The scope of the bill would then be related to the parameters the bill sets in reaching any goals or objectives that it contains, or the general mechanisms it envisions to fulfil its intentions.

Finally, relevancy takes into account how an amendment relates to the scope or principle of the bill under examination. An amendment must respect the principle of the bill it seeks to amend, must be within its scope, and must be relevant to it.

Your Honour, Senator Klyne’s amendment does fall within the principle of the bill. It accords with the underlying intention of the legislation. However, it is not within the scope of the bill and significantly expands the parameters the bill sets in reaching such goals and objectives. It is important to keep the distinction between these two elements in mind.

At committee, Senator Klyne made numerous arguments against my point of order, but these were primarily referencing the principle of the bill and not the scope. The scope is evident throughout the legislation, and it is captured by the bill’s summary, which reads as follows:

This enactment amends the Criminal Code to create offences related to keeping elephants and great apes in captivity, subject to certain exceptions. It also amends the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act to, among other things, specify the circumstances in which the importation or exportation of living elephants and great apes may be permitted as well as the circumstances in which the keeping of these animals in captivity may be authorized.

As the summary indicates, the parameters set up by the bill to reach its goals and objectives are clear; it creates offences related to keeping elephants and great apes in captivity, subject to certain exceptions. The principle of the bill is to protect animals in captivity, while the scope is constrained specifically to species identified.

In his second reading speech, Senator Gold, the Leader of the Government, confirmed this when he said:

Colleagues, Bill S-15 takes a narrower approach than Bill S-241, which was introduced in this chamber in March 2022, by focusing solely on phasing out the captivity of elephants and great apes in Canada.

I repeat, “. . . by focusing solely on phasing out the captivity of elephants and great apes in Canada.” That’s it. Nowhere in Bill S-15 does the legislation contemplate expanding the prohibitions to cover other species.

Senator Klyne argued at committee that adding additional species to the act does not enlarge the scope of the bill because his second reading speech invited the committee to consider amendments specifically referring to the possibility of adding a “Noah Clause.” Senator Klyne says that if he suggests it, it’s okay.

He also argued that the Minister of Environment and Climate Change Canada affirmed a willingness to entertain amendments to the legislation, and this, according to Senator Klyne, means that his amendment is within the scope of the legislation.

To be frank, Your Honour, this is not a reasonable argument. For the sponsor and the minister to acknowledge that they are open to amendments does not change or redefine the scope of the legislation in any way. The scope is defined by the contents of the legislation itself, not the sponsor’s commentary, which was clearly borne from his desire to transform Bill S-15 into Bill S-241.

Furthermore, simply acknowledging that the committee is welcome to consider amendments does not magically make those amendments admissible or procedurally valid. Any amendment at committee must respect the scope of the bill, and this one does not.

At committee, Senator Klyne also argued that his amendment was permissible because the Senate has broad latitude to make amendments in terms of the scope to the point of amending a bill so dramatically that when it is returned to the chamber, it is, in substance, a bill other than that which was referred. However, Senate Procedure in Practice says this:

. . . it is possible for a bill to undergo significant amendment in committee, provided that the text reported back to the Senate continues to respect the decision of the Senate at second reading . . . .

There is no ambiguity here, Your Honour. None. The parameters are clear. Amendments are permitted, and they can be significant. However, they must respect the principle and scope of the bill as approved by the chamber at second reading. Senator Klyne’s amendment is within the principle of the bill, which is to protect animals in captivity, but it completely destroys the scope of the bill, which was constrained specifically to the two species identified.

What needs to be understood, Your Honour, is why Bill S-15 was limited to only these two species. This has significant bearing on understanding the scope of the legislation.

According to the government, Bill S-15 was limited to protecting only elephants and great apes because of scientific evidence that they contend shows that keeping these animals in captivity is inherently cruel. The government argues that based on specific biological and social characteristics of elephants and great apes, such as their size and complex social structures, captivity is particularly harmful to the point of qualifying as cruelty.

Your Honour, I strongly disagree with this conclusion. It is nonetheless crystal clear that this is what forms the justification and parameters for why these species — and only these species — were included in Bill S-15: The government believes the science says it is cruel to keep elephants and great apes in captivity, with certain exceptions. The problem for Senator Klyne is that the science does not say the same for other species.

This was confirmed at committee when Senator Simons asked the minister why the legislation was drafted to only include elephants and great apes. Minister Guilbeault said, “. . . we decided to, at this point, only include elephants and great apes based on the scientific literature . . .”

He continued, saying:

. . . the body of evidence points to the fact that keeping these animals in captivity is equal to cruelty based on some of the criteria that I’ve spoken about.

Those are the minister’s words. As part of my critic’s briefing on Bill S-15, I asked the minister’s office a similar question and was told the following:

A combination of factors grounded in scientific evidence [formed] the decision by the federal government to propose to protect elephants and great apes under this bill.

A four-page document was included in the email, entitled “Factors Supporting that Elephants and Great Apes ought not be kept in Captivity in Canada.”

This document summarized the science the government was referring to.

Your Honour, the government’s position is that they believe they have the scientific backing to apply the legislation to elephants and great apes, but they did not feel that the same body of science existed for other species. This is what determined the scope of the legislation and constrained it to only elephants and great apes.

The second reason why the scope of the bill was specifically limited to elephants and great apes is because of constitutional concerns. The Constitution imposes jurisdictional sensitivities which were clearly articulated by both Senator Gold and the minister. In his second reading speech, again, the government leader in the Senate, Senator Gold, said:

Provinces and territories have primary responsibility for protecting animal welfare, and the federal government recognizes the significant role that many provinces play in regulating animals in captivity . . .

He continued, saying:

. . . the Government of Canada has committed to engaging with provinces, territories and stakeholders to discuss the potential value of a national approach to protecting animal welfare and public safety in relation to captive wildlife and to build on existing federal and provincial roles and best practices.

When he appeared at committee, the environment minister echoed those very same comments. He said:

As you may know, jurisdiction over animals in captivity is shared among the federal, provincial and territorial governments. Canadian provinces and territories have primary responsibility for regulating zoos and protecting animal welfare. All provinces and territories have animal protection laws, and most regulate the captivity of wild animals by private individuals and zoos, including by setting standards for their care. Federal criminal laws that protect animals primarily focus on the prevention of cruelty. This is exactly what Bill S-15 aims to do.

Those are Minister Guilbeault’s words.

Your Honour, the minister was very clear on three things: First, that the bill was not intended to deal with animal welfare, as this is provincial jurisdiction.

Second, before determining if legislation could move beyond these two species, consultations with provinces would be necessary.

Third, it was the issue of “cruelty” to animals which formed the nexus between federal and provincial jurisdiction and gave them the ability to legislate on animals in captivity.

This point is critical to understand: The government cannot just add whatever it wants into the Criminal Code. The Library of Parliament’s publication The Distribution of Legislative Powers: An Overview addresses this issue. It notes that “Under section 91(27) of the Constitution Act, 1867, all matters relating to criminal law are under Parliament’s exclusive jurisdiction. . . .”

The Library of Parliament document then goes on to define the parameters of that jurisdiction, noting the following:

. . . to be considered a valid exercise of its criminal law power, the federal legislation must

have a valid criminal law purpose, such as public peace, order, security, health or morality;

be connected to a prohibition; and

be backed by a penalty for violations.

To be a valid criminal law, legislation must embody all three of these.

Therefore, in order to try to stay within its constitutional lane, Bill S-15 was intentionally crafted to address the issue of animal “cruelty,” which is very narrowly defined in criminal law and falls within the criminal law purpose of protecting morality.

As passed at second reading, the bill did not engage animal welfare and did not engage public safety. The scope of this bill was restricted to the criminal law purpose of protecting morality by preventing cruelty.

When he was at committee, Minister Guilbeault’s comments underscored this fact when he said:

The approach taken under Bill S-15 to protect elephants and great apes takes a similar approach to the existing regime that prohibits the captivity of whales and dolphins in Canada. In 2019, Parliament banned cetacean captivity on the basis that it is cruel due to their high cognitive abilities, social structure, and the adverse physical and mental effects of captivity on these creatures.

On February 20 of this year, I emailed the minister’s office about the criminal law purpose of Bill S-15 and asked:

Is the government . . . of the position that the valid criminal law purpose of S-15 is both security and morality, or just morality?

The minister’s office responded with the following:

The purpose of the amendments to the Criminal Code in Bill S-15 is to phase out the captivity of elephants and great apes in Canada, on the basis that it is cruel and morally wrong to keep these animals in captivity given their inherent characteristics and negative experiences in captivity.

. . . While security or public safety may be valid criminal law purposes, the Bill’s focus is on morality and the cruelty that captivity of elephants and great apes represents. There is no mention of security or public safety in the preamble, nor do any of the Bill’s provisions address these matters.

That is a direct quote from the minister’s office.

Your Honour, the minister has been very clear on this matter. The parameters which circumscribe the scope of the legislation are not fuzzy or accidental. They are very clear and critically important to the constitutionality of this bill. This is why I find it surprising that when Senator Klyne introduced his amendment, he made no effort to hide the fact that he was breaching those parameters. When he introduced his amendment, he noted three times that the purpose of the amendment was to “protect public safety.”

Your Honour, I appreciate that Senator Klyne would like Bill S-15 to capture more of what was embodied in Bill S-241. As a matter of fact, he said so in this chamber. He is not hiding that. However, the government deliberately rejected this option by only including elephants and great apes. The government knew what Senator Klyne wanted. He couldn’t get what he wanted. He asked the government to present a bill. They presented a bill that didn’t include what Bill S-241 had. They purposely narrowed the scope to what they felt would sustain a constitutional challenge. This again was illustrated by Senator Gold’s statement in his second reading speech when he said:

Bill S-15 has been carefully crafted to address many concerns that were raised in the context of the debate on Bill S-241 — namely, the question of constitutional jurisdiction . . . .

Your Honour, these points in and of themselves are enough to demonstrate that the “Noah Clause” amendment is entirely out of order. When we consider that the principle of this bill is its underlying intention, which is to provide greater protection to animals in captivity, and the scope of the bill is found in the parameters the bill sets in reaching its goals and objectives, it is clear that the “Noah Clause” amendment is out of scope and should not be allowed to stand.

I’m coming to a close here, Your Honour. However, there are two additional points I need to bring to your attention that further illustrate how this amendment has changed the scope of the bill.

The first thing I note is that this amendment changes the scope of the legislation because, as it was written and approved at second reading, it only dealt with two exotic species that are not native to Canada. Senator Klyne’s amendment drastically altered that scope to include any non-domesticated animal species, including those that are native to Canada, unless they are used in farming for food purposes.

Aside from the sheer volume of species that this legislation would now capture, it illustrates the significant constitutional issues that would be engaged by this amendment. Constitutionally, the responsibility for wild animals native to Canada falls to the provinces because it is under the jurisdiction of ministries of natural resources. To pass an amendment that gives the federal government the right to ban the captivity of those species is an undeniable infringement on provincial jurisdiction.

Under Bill S-241, Senator Klyne defended the inclusion of these species by asserting that it fell within federal jurisdiction: under the umbrella of Public Safety. However, I would again note that the Minister of Environment and Climate Change was clear that Bill S-15 was not legislating on the basis of public safety or security.

I am not asking you, Your Honour, to rule on constitutional issues. I am simply pointing out how this amendment dramatically changed the scope of Bill S-15. The fact is that even if it were not unconstitutional for the federal government to legislate the captivity of wild animals native to Canada, the amendment would still be out of scope because such a reach was not anticipated by the original legislation that we passed at second reading.

The second additional point I need to raise for your consideration is the fact that, under this amendment, Bill S-15 now potentially impacts animals used in farming. Senator Klyne included an exemption for farming for food purposes, but this does not address animals that are raised for their fur or wool: for example, mink, fox or alpaca. This concern was raised by the Fur Institute of Canada in a letter sent to the chair of the committee following the introduction of the “Noah Clause” in their letter. They stated the following:

Bill S-15, in its original form, was very narrow in scope, focused specifically on great apes and elephants. The amendment introduced by Senator Klyne will broaden the scope to, potentially, any “non-domesticated” animal, with the exception of those farmed for food.

The fact that there is an explicit exception for *only* animals farmed for food, instead of a blanket exemption for animals which are farmed, is a clear indication that Senator Klyne and the groups supporting the “Noah clause” would like to open the door to banning the keeping or breeding of animals farmed for fur.

The fact that it opens the door to this is undeniable, illustrating the significant change this amendment made to the scope of Bill S-15.

In closing, Your Honour, I want to point out that the fact that this amendment extended the scope of the bill was repeatedly acknowledged at our committee meetings, both before and after the amendment was permitted by the chair. It was admitted by the chair with no consideration.

During the debate at committee I asked Ms. Stephanie Lane, Executive Director of Legislative Governance at Environment and Climate Change Canada, or ECCC, whether this amendment would change the scope of the bill, and she said:

I would say it does change the scope of the bill in that it allows more species to be added, some of which are domestic species.

She is a government official, Your Honour.

Senator Simons, who voted against this amendment, noted that she did so because she believed it was out of scope. She said, “I’m not sure that I believe the amendment was in scope, and I voted accordingly.”

Even Senator Dalphond, who voted in favour of the amendment, later acknowledged that it had “ . . . extended the scope of the bill.”

This was also confirmed by stakeholders who were alarmed that the scope of the bill had been significantly enlarged. As I mentioned earlier, the Fur Institute immediately wrote the following to the committee saying:

The introduction of the Noah Clause is deeply concerning to the Fur Institute of Canada and the fur sector. . . . As Bill S-15 in its original form had a narrow focus on great apes and elephants, so we are not implicated and as such did not seek to testify or submit a brief to this committee . . . .

We implore the committee to not pass this amendment . . . .

This organization’s request was ignored, Your Honour, by the committee, but their observations are nonetheless very valid: In its original form, Bill S-15 had a very narrow focus, which was significantly altered by the amendment with no warning to stakeholders.

Your Honour, I believe this is a very straightforward case. When we consider that the principle of the bill is its underlying intention, which is to provide greater protection to animals in captivity, and that the scope of the bill is in the parameters the bill sets in reaching its goals and objectives, it is clear, Your Honour, that the “Noah Clause” amendment has significantly changed that scope and should not be allowed to stand.

I respectfully ask that you rule that part out of order. Thank you, Your Honour.

I will be brief, Your Honour. Thank you for the opportunity to speak.

I listened and tried to find out what Senator Klyne was objecting to. I have never objected to amendments being made to a bill. As a matter of fact, as he said, there were a number of amendments made to Bill S-15 that we did not consider out of order. We voted for some and against some. He listed I don’t know how many bills that had amendments received to them. I fail to see any of the relevance in that because amendments can be made. When amendments are out of scope, they are out of scope. When they are not out of scope, they are voted upon. I am not sure where he went with that.

Your Honour, he started off making comments like “honoured practices and procedures” and saying we don’t have the right to rule something out of scope. You don’t have the right to rule something out of scope, Your Honour, because that somehow is not democratic.

Since 1867, Speakers have ruled for or against points of order and so on and so forth. They are going to continue, Your Honour, whether I am or Senator Klyne is in the chamber or, in fact, still in the Senate.

Yet, somehow he is suggesting you don’t have the right to make a ruling on this one, but he was happy about the ruling that you made yesterday. We could litigate yesterday’s ruling, which he wanted to do here. I’m not sure why he cannot accept yes for an answer. I’m the one who should be complaining about yesterday’s ruling, not him. Nevertheless, maybe he wants to debate that more.

Senator Klyne is talking about wild species. He says that he does not include any animals other than wild species. That’s it — wild species. Then why does he explicitly say, “not native to Canada”? Senator Klyne’s amendment drastically altered the scope including non-domesticated animals, including those that are native to Canada unless they are used for farming or food purposes. Then he turns around and says there is nothing that says that. It says it right there. It is on the record, Your Honour.

Then he says that it doesn’t include all animals on the planet. Well, in his introduction today, Your Honour, when he started speaking about the “Noah Clause,” he said it is named for Noah’s ark. Now, I was not around at that time, but I read my Bible every so often, and I understand in Noah’s ark that they had two of every animal in the world. All of a sudden today, that doesn’t apply anymore. He said it is named for that Noah, but it does not apply to this Noah, today’s Noah.

Either it is a “Noah Clause” or it isn’t, Senator Klyne. You can’t have it as, “Well, we’re having a ‘Noah Clause,’ but we’ll eliminate these.”

The minister, Senator Gold and government officials, Your Honour, indicated or said implicitly that it’s out of scope, clearly. Yes, the minister said, “I’m open to amendments.” But I would like to ask the minister, “Are you open to amendments that are out of scope?” I did not think that I needed to ask that question. I think that we know the answer. The minister would say, “No, I’m not open to amendments that are out of scope.” He wasn’t asked that question. He was asked, “Are you open to amendments?” Certainly, they are open to amendments.

As Senator Batters said, I find it strange. Here we have the government sponsor, who was unhappy that Bill S-241 was not going anywhere. I do not blame him. I would be unhappy, too, if my bill was not going anywhere, and I had that for a while.

Sorry, did I interrupt you at any point?

No, I didn’t. Did I ask you for anything? No, I asked him.

Sorry, Your Honour.

One thing that you did there, Senator Klyne, you got me off my train of thought.

The minister was clear. When I spoke with the minister’s office, I asked him, “Why Bill S-15? Are you willing to accept a number of amendments?” The answer was, “Senator Plett, we put two animals into that bill for a very specific reason.”

Senator Klyne and the animal activists had been hounding the government to bring a bill forward because I was stopping his bill. They brought a bill forward that they wanted, Your Honour. They had a copy of Bill S-241. If they had wanted Bill S-241, the government would have submitted it. I could not have stopped it. Senator Gold could have done time allocation on Bill S-241 if it had been a government bill, but they did not want that.

Senator Gold was very clear about why Bill S-15 was about two animals. Senator Klyne implied we shouldn’t listen to the opinions of government officials. We should, rather, listen to the opinion of a chair. I have chaired some meetings. That does not make me an authority on every subject. Certainly, Senator Jaffer, God love her, was not an authority on this subject.

Frankly, if we want to tell tales — well, it wasn’t in camera — Senator Jaffer took that much time. When the government official sits there and says it is out of scope, and a chair does not even take it into consideration, I would say that the fix is in, Your Honour, and that’s what happened. We had a government official who said that this amendment is out of scope. And now Senator Klyne says we should not listen to government officials. Then let’s not bring them there; let’s not waste their time. Let’s just have Senator Klyne and company bring us our bills, rubber-stamp them, not debate them.

Your Honour, the last comment is he referred to us as being the chamber of sober second thought. First of all, this isn’t the second thought — this is the first one — and I doubt this amendment is a very sober amendment. Thank you, Your Honour.