They represent voters.

Themselves.

I’ll vote for you.

Senator Plett, would you take a question?

Senator Plett, there is one thing I’m curious about. It sounds like there were some constitutional questions raised about this, yet it sounded like the entire Liberal cabinet supported this. I’m assuming that probably included the justice minister, so I am anxious to hear about that.

In the last year, we’ve sadly seen a few different situations, as you were alluding to, where members on Senate committees have gutted bills that were passed by the House of Commons. I’m thinking about Bill C-234, the carbon tax exemption for farmers; Bill C-275, which is this bill regarding biosecurity on farms; and Bill C-280, the financial protection for fresh fruit and vegetable farmers act. All of those bills would help Canadian farmers, and all of those bills were introduced in the House of Commons by Conservative MPs, but I’m sure that’s just a coincidence.

Senator Plett, I am a senator from Saskatchewan, the agricultural heartland of Canada, or the breadbasket of Canada, as it is often called. It is a key part of my job to stand up for the people of my province of Saskatchewan. I regularly hear from farmers about how important these bills are to their livelihood, as you were saying you hear this from people in Manitoba.

Do the senators who are gutting these important agricultural bills realize the profoundly negative impact that their actions are having on Canadian farmers?

Honourable senators, I rise to speak to the report on Bill C-275, An Act to amend the Health of Animals Act (biosecurity on farms).

And since we are all thinking about America tonight, I want to start with some American news about H5N1, or avian influenza A, known colloquially as “bird flu.” As the name suggests, the disease spreads primarily amongst birds. That includes farm‑reared poultry and wild birds such as waterfowl, shorebirds and raptors.

But in the United States, disturbingly, the disease has jumped the species barrier. This strain of avian influenza is now infecting American dairy cows. It has been detected in more than 400 separate dairy herds across 14 states. And now avian influenza is showing up in the milk supply to such an extent that Tom Vilsack, the U.S. Secretary of Agriculture, informed the press this week that the U.S. Department of Agriculture is about to begin testing raw milk in bulk for signs of the virus.

I am happy to say that pasteurizing kills the disease, but in America, there is currently a big political fad for drinking raw milk, so that has the authorities there concerned about vectors for human infection.

As of last week, the U.S. Centers for Disease Control and Prevention had identified 36 cases of people infected with this strain of avian influenza; almost all of them were farm workers, primarily in Washington State and California. Some were poultry workers, while others worked on dairy farms.

While avian influenza is lethal to birds, so far the humans who have been infected have reported relatively mild illness — upper respiratory symptoms and inflamed eyes. No one has been hospitalized, and there have been no fatalities. And thus far, I am happy to say that no cases of infected cows — or people — have been reported in Canada.

But the spread of this influenza variant, which has so nimbly jumped the species barrier, should make us sit up and take notice. Some experts are concerned that if this influenza variant successfully mixes its genetic material with the more typical autumn flu strains — perhaps in a farm worker who is infected with both viruses at the same time — we could end up someplace much less pleasant.

I agree with Senator Plett; the concerns about biosecurity on farms are very real. We must protect not just our flocks and herds but also our farmers and farm workers — and everyone else — from the spread of infections that can wipe out livestock and farm livelihoods and can potentially pose the risk of igniting another pandemic.

Avian influenza is far from the only pathogen that puts people and animals at risk. We’re talking about everything from distemper to African swine fever, from hoof-and-mouth disease to bovine tuberculosis, and even COVID-19, which can be spread to and by mink being raised on fur farms.

Years ago, as a journalist, I covered the BSE crisis in Alberta, where bovine spongiform encephalopathy — otherwise known as mad cow disease — shut down Alberta’s beef exports and wiped out many producers. Even though the disease affected only a handful of cows, the fear of the disease devastated our beef industry, and it took years to recover.

So let’s talk about biosecurity on farms and what Bill C-275 does and doesn’t do to address it.

In its original and unamended form, the bill focused almost entirely on trespassers, with the goal of dissuading animal rights activists from coming onto farms and disrupting their operations.

Under the terms of the original bill, any person who entered a building or other enclosed place where animals were kept, without lawful authority or excuse, could be fined up to $100,000 under the Health of Animals Act, if their entering such a place or taking in some animal or thing could reasonably be expected to expose the animals to a disease or toxic substance. They could also face a sentence of up to one year in prison. An organization convicted of an indictable offence under the act could face fines of up to $500,000.

In Canada, trespass law falls under provincial jurisdiction, and fines for illegal entry range from province to province, from $5,000 to $10,000 up to $25,000, for a repeat offence.

John Barlow, the Alberta MP who sponsored this bill, made his frustration with those penalties plain. Here is what he told our committee in his testimony last spring when he complained that existing provincial laws weren’t doing enough to stop animal rights activists and their fundraising campaigns:

I believe existing trespassing laws aren’t sufficient because they are not harsh enough. Last year, in the United States, these groups raised more than $80 million from videos and so on that they are posting online. So, if we don’t have fines that are sufficient to pose a deterrent, there is really no financial hammer to stop this.

In other words, his concern was not biosecurity; it was PR.

Farms are unique as workplaces where families often have their homes on site. I can’t imagine how upsetting and disorienting it would be for a farm family to wake up in the middle of the night to find political protesters on their property.

There is also a real problem in rural areas with police response time. I know that on the Prairies, where farms are huge and often far away from RCMP detachments, many people feel helpless to deal with trespassers on their property, whether they are there to protest or simply to pilfer.

As a long-time journalist, I support a free press. I understand the public value of whistle-blowers. Animal rights activists can rightly point to cases where trespassing on farms has yielded disturbing examples of animal abuse and neglect.

Nevertheless, I think that people who commit criminal trespass as a form of civil disobedience, even with the noblest of intentions, should face appropriate penalties for doing so including, where warranted, charges of breaking and entering under the Criminal Code, if and when such charges would pertain. But the regime of fines laid out in Bill C-275 is so disproportionate as to be absurd, as Senator Plett recognized.

I say again that trespass is a provincial responsibility. By trying to create an alternate parallel trespass law, Bill C-275, as some witnesses testified, may trespass into provincial jurisdiction.

Let me quote again from testimony we heard at committee, this time from Angela Fernandez, a professor of law at the University of Toronto:

. . . First, if the bill is meant to target trespassers coming onto farms, then its title is misleading; it is not really about biosecurity on farms. You might ask what the big deal is about the mismatch between the title and the substance. In constitutional law, if you have a mismatch between the substance and what’s sometimes called the purpose and effect of a statute, this can be called “colouring the law with a substitute purpose,” a doctrine known in constitutional law as “colourability.”

This constitutional law doctrine specifically describes a situation in which a statute has the formal trappings of being about a certain matter, but it is not really about that matter. This is a problem if that matter falls outside the jurisdiction of the government that is passing it — in this case, the federal government.

Now, let it be said that section 95 of the Constitution Act 1867 clearly divides the responsibility for agriculture between the provinces and the federal government. The federal government is well within its rights to legislate on matters involving agriculture, and that includes the Health of Animals Act. But let’s look at what Bill C-275 actually does.

The original bill wouldn’t just encompass animal rights protesters with a righteous political agenda. Interpreted broadly, it might capture anyone who strayed onto a farm property even if they were there for a relatively innocuous reason, such as hunting or snowmobiling, or a more nefarious one, such as straight-up theft. In other words, the bill, as originally drafted, could lead to the extraordinary punishment of trespassers of all sorts under the guise of biosecurity.

Provinces certainly have the power to enact higher trespass fines, if they so wish, to protect rural landowners. But it’s disingenuous to pretend this bill, as drafted, was primarily about biosecurity because even leaving the constitutional debate aside, Bill C-275, as presented to our committee, was poorly conceived public policy.

My friends, there has never been a confirmed case in Canada of an animal disease being spread and carried by protesters — never. Even in the one case that Senator Plett cited from Sonoma County in California, it was found that trespassers were a plausible vector. It was also found that the area was rich in shorebirds and waterfowl, which could also have caused the contamination.

Why has there never been a confirmed case in Canada of an animal disease being spread and carried by protesters? Well, there are two obvious reasons for this. One is that such farm protests don’t happen all that often — they are outliers. The other is that protesters, many of them being city folk, aren’t all that likely to spread an agricultural pathogen if and when they come to a farmyard. If you or I were to show up to protest at a farm, we would be unlikely to have pathogens dangerous to livestock clinging to our shoes, clothes or car tires.

The far greater risks, as you well might imagine, are more mundane and the more quotidian. They may come from people who travel from farm to farm making deliveries, doing maintenance or selling supplies. There can be issues too if farmers share machinery and move equipment from barn to barn, potentially spreading diseases if they don’t use the kind of washing equipment that Senator Plett referenced. Then there’s the issue of cross-contamination within a farm operation, which might explain how avian flu ended up infecting thousands of dairy cows across the United States.

At the same time, we learned in our committee that biosecurity protocols in Canada are largely voluntary. The Canadian Food Inspection Agency, or CFIA, does not enforce them. It is left to producer groups to make sure farmers are following good biohazard protocols. But if producers break those rules, the producer groups can only impose economic or social sanctions and not legal penalties. How absurd would it be to have a law that set huge fines for trespassers coming onto farms but no fines at all for the people whose negligence might far more realistically cause contagion?

So after hearing all the testimony, our committee agreed on an amendment to address the problem. It removes the phrase “without lawful authority or excuse” from the first clause of the bill. This would mean that any person could be prosecuted if they’re entering an enclosed place or taking in an animal or thing could reasonably be expected to expose animals to a disease or toxic substance. They could be prosecuted if they were trespassers, negligent farm operators or negligent farm workers.

That wouldn’t mean that you could prosecute a hapless farm employee or temporary foreign worker for making an innocent mistake. The law would still only apply to people who commit acts that could “reasonably be expected” to spread disease. Indeed, the law would actually protect farm workers, including economically vulnerable temporary foreign workers, by making their work sites safer and healthier and minimizing the threat of the spread of disease to those who earn their living caring for livestock.

Senator Plett asked me if I were a friend of farmers. I think, based on my experience covering the bovine spongiform encephalopathy, or BSE, outbreak, that protecting farm livelihoods is being a friend to farmers. When I said things were not our problem, as Senator Plett well knows, I was not referencing the situation of biosecurity on farms; I was referring to the shenanigans and the antics in the other place, which are most assuredly not our problem.

This is an amendment that we passed at committee after seven hearings and 10 hours of expert testimony from livestock producers, veterinarians, law professors, infectious disease experts and, yes, animal rights activists. We didn’t take that action lightly or because we wanted to score ideological or political points. We did it out of a sincere concern about biosecurity on farms and a wish to help craft legislation that actually works to protect farmers, farm animals and human health.

If we vote against this report, we not only strip the bill of a vital amendment designed to enhance public health and safety, we also eliminate an important observation passed by our committee, noting that our biosecurity rules in Canada are voluntary on-farm and calling on the government and the CFIA to reconsider that state of affairs.

For the Senate to vote down a report from a committee that worked long and hard on this bill in a good faith and non-partisan way should be an extraordinary step, reserved for times when a committee has strayed somewhat out of bounds or when the committee made a decision perhaps without possession of all the facts. We should not make a precedent of voting down a report simply because some parliamentarians did not like the result of a committee’s work. Based on that logic, we could relitigate every committee decision.

So I ask, let us please accept this report and begin third reading debate in earnest and hash out these issues in this chamber, where they deserve to be heard, because we are on the side of farmers and on the side of Canadians. We need to craft legislation with sober second thought, exercising our responsibilities to analyze private member’s bills and hold them to the scrutiny that they deserve, not just to protect farm animals and people who work on farms but to protect the human health of everybody who might be vulnerable to the viruses that are out there. Thank you. Hiy hiy.

Honourable senators, I rise to speak to the Standing Senate Committee on Agriculture and Forestry’s report on Bill C-275.

Now, I’m no longer on the beloved and occasionally overpopulated Agriculture and Forestry Committee, but my fondness for its work is undiminished. I don’t hold myself out as an expert in the area of agriculture, certainly not with respect to the policy and substance of Bill C-275. I’m reading, listening to and observing the decisions of others on this bill, especially in the other place.

For now, and speaking to the report, I intend to confine my remarks to the issue of those who advanced amendments to Bill C-275 on a key basis, a basis that the original bill was about trespassing and, consequentially, an unconstitutional intrusion into provincial jurisdiction over property and civil rights. Therefore, it required an amendment to the bill as reported back to us.

I have nothing to say about motive or the use of this debate as some form of political football. That’s not my interest. My main point will be that the issue of constitutionality is a wrongheaded interpretation of both the legislation and the Constitution’s division of powers between the federal and provincial orders of government.

I want to start by describing how we in this place should think about these questions of alleged unconstitutionality, something that we hear on a relatively regular basis. Indeed, you will recall that, with respect to nearly every piece of legislation that comes to us, the Attorney General provides a Charter statement — sometimes helpful, sometimes less helpful — on questions of unconstitutionality as it relates to the Charter of Rights and Freedoms. It is my considered view, only slightly related to this conversation, that we also ought to be having statements from the Attorney General of Canada regarding the question of constitutionality as it regards the division of powers, historically the main constitutional question that bedeviled our country and enriched constitutional lawyers.

As a matter of principle, in my view, we ought to take the same approach to the questions of constitutionality regardless of our support for or opposition to a piece of legislation. That is, we ought not to approach the question in an opportunistic way as it suits our particular interests in the moment, so to speak. The Constitution of Canada deserves better than to serve as a tool for this form of argument.

Now, one approach would be to accept the view of those who say that questions of constitutionality should be left to the courts. This is certainly attractive, but I suggest to you that this is too simplistic an approach and, in a certain way, beneath us. Each of us took an oath or affirmation, and it includes a commitment to the Constitution of Canada. Surely, this does not mean, at the very least, that we would turn a blind eye to the question of constitutionality with respect to every law we examine in this place. Surely, we owe it to Canadians to say with a certain level of confidence that a law we propose to pass appears to meet the requirements of the most fundamental law in our country. Less than this is surely an abdication of responsibility.

At the other end of the spectrum, surely, we are not required to provide a seal of certainty on every piece of legislation over which we deliberate. The best constitution lawyers can’t and won’t do that, and so a standard of constitutional perfection is both ridiculous and beyond us. So we are somewhere in between.

Let me offer some points to consider before I turn to questions of this bill.

Legislation starts with the presumption of constitutionality. With government legislation, the Attorney General provides, as I mentioned, Charter statements — a form of constitutional imprimatur — and the Attorney General has a legal obligation to be attentive to that question, especially where there’s a fairly high — maybe very high — probability of unconstitutionality. It’s not certainty but it's significant.

Nor can it be that we should set aside legislation where there is an arguable case as to unconstitutionality. This message, this standard, was articulated by the constitutional experts who testified at the Agriculture and Forestry Committee.

Most controversial laws lend themselves to an arguable case of unconstitutionality, so this cannot possibly be the basis upon which we would withhold our approval of legislation. With respect, that would be a dangerously low bar, and it’s not the one the Attorney General of Canada applies.

In my view, this leaves us trying to identify a fairly high standard, something in the vicinity of “at least probably or a high degree of probability of unconstitutionality,” closer to the language that guides the Attorney General.

This key is to have an immutable standard that we should embrace for every piece of legislation, and not move it around as suits our will. You might be saying to yourself, “Well, I’m not a constitutional lawyer. How am I to know?” That’s a fair point. But like everything in this place where we lack the knowledge or skill set — and I just referred to my own deficit with respect to agriculture — we listen carefully, we consult and we do the best we can.

So if this, or something close to it, is the standard, let’s look at the original law here and see if it fits that “probably unconstitutional” standard. The main argument is that the prohibition on entering property without lawful excuse where animals are kept is really a trespass and an intrusion into provincial jurisdiction. Senator Plett and Senator Simons helpfully laid the groundwork for that. A secondary argument is that the legislation purports to do something within federal jurisdiction — creating a federal offence — but is really intended to do something else within provincial jurisdiction and is therefore “colourable” — that is, an unconstitutional “end-around,” if I could call it that.

My first point is that the law forbids entry for a particular purpose, which could have serious consequences. There is some debate on how serious or not, but nevertheless, that’s the point. On its face, it’s a valid exercise of federal criminal law jurisdiction, and I’ll say more about that in a moment.

My second point is that activities can have more than one aspect from a constitutional point of view, in this case, trespass and a crime. Many driving offences have this: provincial driving offences and dangerous driving or driving under the influence of alcohol. The same event might bring together two legitimate laws burdening, in this case, the driver, with the provincial law regarding maybe careless driving or — you name it — speeding, but also the federal law about dangerous driving. When we have that situation, we have what is known as a law that has a double aspect where both the provincial law and the federal law are valid. So the legislation that’s being proposed does not in any way invalidate provincial laws of trespass. It tries to establish, probably on the basis of criminal law, a criminal offence for the same kind of behaviour. As I say, in this context, they would both be valid.

Let me offer what I think is a compelling example of this. It highlights a few significant words. It is the reference regarding genetic non-discrimination. It was a constitutional reference that went to the Supreme Court of Canada. It was found to be valid as a matter of criminal law. It was a law criminalizing compulsory genetic testing and the non-consensual use of genetic test results. It’s a valid criminal law despite an unquestionable overlap with provincial jurisdiction over property and civil rights because it was a valid exercise of the criminal law power, which required three things: number one, a prohibition; number two, a penalty; and number three, that it be directed at a legitimate public purpose such as health, public order, security, morality or the environment.

Well, there are a few words in there, and you can take your pick, but surely some of them apply to this law. And then, as a matter of having more than one aspect, you can see that in genetic testing. Part of it is provincial jurisdiction over health, property and civil rights, but part of it governed by the criminal law, which is what the genetic testing legislation did. Both are constitutional, which should take us to the view that Bill C-275 should not be tampered with on constitutional grounds.

I want to take you to another argument that Senator Simons and I discussed earlier and to which she made reference. The bill is focused unquestionably on what happens on farms. That’s the whole point of the bill. The bill, at its core, is about agriculture. In constitutional terms, Bill C-275 is “in relation to agriculture.” This is pretty obvious, and we have already acknowledged this. Where do we send the bill? I know he secretly calls it the “Rob Black and friends committee,” but it is the Agriculture Committee. It’s where we send bills dealing with — you got it — agriculture. You may be saying at this point: What’s the big deal?

It is this. When we think about the division of powers between federal and provincial governments, between Ottawa and the provinces, we nearly always think about sections 91 and 92 of the Constitution Act. They’re big long lists, but whether you like it or not, we have to pay some attention to those lists because our job is limited to the section 91 list. That’s how it’s taught in law school, and most of the big constitutional action prior to the Charter was about those two sections of the Constitution.

But section 95, as Senator Simons observed, gives power to the federal government in relation to agriculture. Indeed, it is a concurrent jurisdiction with the provinces, but it is so powerful that the Constitution recognizes that in the case of a conflict, federal legislation in relation to agriculture dominates. It is, in the language of constitutional law, paramount.

This isn’t conflict between federal and provincial agriculture law, but I think it conveys to us a fairly powerful statement of the meaningfulness of the federal jurisdiction over agriculture. Indeed, the focus with respect to that federal jurisdiction tends to be with respect to agriculture as it applies to what happens on the farm. One of the constraints is that once food goes into the food distribution chain, it becomes a more complicated issue, but the farm activity is thought of as predominantly federally regulated.

You may like or not like Bill C-275 in its original form, although as Senator Plett noted — and he stole my observation of this — 278 members of Parliament liked it. But the argument that it was constitutional in its original form is compelling. The need for a committee amendment for the purpose of establishing its constitutionality just doesn’t hold water.

The bill, in the form in which it came to us, possessed a constitutional “belt,” which is criminal law, and “suspenders,” which is agriculture. If that is not enough, and as has already been noted, a parliamentarian who has the greatest official legal duty — and I’ve written about when attorneys general have failed in this regard, including a member of Senator Plett’s party — to uphold the constitutionality of our laws, the Attorney General of Canada voted for this bill in its original form twice.

Thank you very much.

Thank you for giving me this opportunity to speak. I decided to rise today as a member of the Standing Senate Committee on Agriculture and Forestry, but also as the former president of a board that has promoted workplace health and safety for many years. I will be brief, much briefer than my colleagues, but I thank each of the senators who spoke today for their insight.

I also want to thank the members of the Standing Senate Committee on Agriculture and Forestry, because I really appreciated the debates that were held. Thank you to the committee chair, Senator Black, and to all of the committee members: Senators Simons, Burey, Dalphond, Klyne, Marshall, McBean, McNair, Petitclerc, Richards and Sorensen.

We all understand the importance of the subject now before us. Here are some figures from Statistics Canada. The agriculture and agri-food industry employs 2.3 million people in Canada, which represents one in nine jobs in Canada. It generates $150 billion or close to 7% of our GDP. I think that we all understand how important this subject is.

The committee heard from many groups and witnesses. I think that all members of the Standing Senate Committee on Agriculture and Forestry want to do their job properly.

Today’s debate is very healthy. We’ve heard a lot about biosecurity. That’s our goal. We’ve also heard constitutional perspectives. I’m grateful to Senator Cotter for his constitutional insights.

I’m not going to talk to you about the constitutional aspects today. I’ve reviewed everything that happened in the other place, including the votes and the constitutional analysis. I’ve assimilated all of it, and I respect the work that’s been done on this.

I’m not going to talk to you about constitutional law or freedom of expression, either. As a lawyer, I hold freedom of expression very dear. It’s protected by the Canadian Charter of Rights and Freedoms. As you all know, the Charter takes precedence over any act passed in Canada.

Instead, I’m going to talk about the amendment, but before I do that, I’d like us to take the time to review proposed section 9.1 in the bill. This bill essentially has two clauses. That’s what I’ll be talking to you about for the next few minutes. Proposed section 9.1 reads as follows:

No person shall, without lawful authority or excuse, enter a building or other enclosed place in which animals are kept, or take in any animal or thing —

 — like a camera, for example —

 — if their entering such a place or taking in the animal or thing could reasonably be expected to result in the exposure of the animals to a disease or toxic substance —

 — and that’s not all, because that substance also has to be “capable of affecting or contaminating them”.

So you see, colleagues, there are several steps that have to be followed, and I believe that the use of the conditional tense in the proposed section demonstrates that all the necessary assessments were done and that it was determined that this wording would not infringe on either freedom of expression or freedom of information. The proposed section is clear on this point, which is why I now want to draw your attention to the amendment.

The amendment proposed by my colleague Senator Dalphond would delete the words “without lawful authority or excuse.” The proposed section would therefore read as follows: “No person shall enter a building or other enclosed place in which animals are kept . . . .”

If these words can be deleted, then what purpose were they serving? This was why I objected in committee to the amendment proposing to delete them. I think it would violate the rights of workers who are on the premises to perform job-related duties, for example. In fact, it would deny them a defence, because this bill provides for criminal offences.

For example, a worker who is present on a farm and who is accused of bringing in a substance that is capable of contaminating the animals could face criminal charges. By removing the words “without lawful authority or excuse,” we would be denying workers a defence, so it would no longer be available to them in court. That is why I objected to deleting those words.

As I was telling you earlier, honourable senators, 2.3 million people work in the agriculture and agri-food sector. However, according to Statistics Canada, if we only consider primary agriculture, which refers to crops and livestock, it alone employs 278,373 workers.

I’m new to the Senate, but I decided that my duty will be to advocate for workers, but also all Canadians, to uphold their rights and protect defences that they may need to use in court. As I mentioned not only to my colleague Senator Dalphond, but also to all the senators I have had the privilege of interacting with on this important topic, that is precisely why I was against deleting these words.

I trust both the wisdom of the committee members and the wisdom of the Senate. Since joining the Senate, I have been impressed by the sound judgment of all senators. The debate we are currently having is healthy and useful, and I thank all senators who have shared their insights. There is a French expression that says that enlightenment comes when ideas collide, but I’m confident that we’ll come up with a good solution. I urge my colleagues to protect workers, but also, since you mentioned inspections, I believe that people who are on the premises should have a lawful authority or excuse to enter. It would be inconceivable if health and safety inspectors, for example, couldn’t rely on such a defence in court.

That concludes my brief remarks today, specifically on the amendment, and I thank you for the opportunity to speak to this issue, honourable senators.

Honourable senators, I move that further debate be adjourned to the next sitting of the Senate.

Senator Pate, would you like to ask a question, or are you speaking on debate?

On debate.

Honourable senators, I speak today as the critic of Bill C-275. I would like to speak to the report.

No doubt it goes without saying that protecting the health and safety of animals and workers on farms is of the utmost importance to farmers, producers, workers, consumers and animal welfare advocates alike — in fact, to all Canadians. Putting preventive measures and practices in place to keep animals healthy has been a long-standing and successful practice on Canadian farms.

Although it is mostly a provincial area of regulatory responsibility, at the federal level, the Health of Animals Act provides a legislative framework for the Canadian Food Inspection Agency to address issues with respect to animal disease and biosecurity.

When we first received this bill at the Standing Senate Committee on Agriculture and Forestry, it was not debated at second reading. Its preventive measures only applied and were targeted to a small group of people deemed to be on farms without lawful authority or excuse. This targeting was at odds with how this bill was presented. It was characterized as an attempt to regulate and ensure animal health and biosecurity on farms. Indeed, its focus on only some of those who may be present on farms, and particularly the bill’s resulting criminal law sanctions, made the bill seem more like an attempt to impose rather arbitrary anti-trespass laws that did not address biosecurity threats on farms directly.

The amendment that was brought forward at committee removed this inconsistency and ensured that the offence for exposing animals to disease that is being created in this bill now applies to all those who pose this risk. Concerned witnesses argued that the bill aimed to target only trespassers on farms rather than actually focusing on how best to address known serious risks to biosecurity on farms.

Perhaps most notably, Dr. Mary Jane Ireland, the Chief Veterinary Officer and Executive Director at the Canadian Food Inspection Agency, or CFIA, told the committee, “The CFIA is not aware of any confirmed cases of animal disease in Canada due to trespassers.”

The only examples consistently brought up to justify the need for this bill to be targeted at protesters were actually disproven at committee. For instance, the sponsor and others pointed to a case in Saint-Hyacinthe where a pig farm was targeted by protesters who were alleged to have caused an outbreak of rotavirus. Contrary to the insinuation at committee, an investigation of the farm by the Ministère de l’Agriculture, des Pêcheries et de l’Alimentation du Québec, or the Quebec Ministry of Agriculture, found that — rather than the entry of protesters — animal density, accumulation of manure, inadequate ventilation and insect infestation were more likely causes of an outbreak of rotavirus.

The protesters involved were charged and convicted with breaking and entering and obstructing police, not merely trespassing. But neither the Crown nor the judge found any merit to claims of any sufficient evidence to support that these trespassers were linked to the outbreak.

Similarly, the committee was advised that contrary to the narrative that a distemper outbreak on an Ontario mink farm was the result of protesters being on the farm, evidence actually pointed to the release of the minks by protesters, following which:

One or multiple mink that would have been released would have had to come into contact with an animal outside. . . .

The releasing of animals in this manner is already illegal under the existing criminal law on mischief and various provincial anti-trespass and anti-interference legislation. For example, in Ontario there is a clause in the Security from Trespass and Protecting Food Safety Act for a prohibition against interference or interaction with any farm animal in or on an animal protection zone on a farm, an animal processing facility or prescribed premises without prior consent. Any breach of this provision allows the court to make a restitution order to pay damages for any loss or damage suffered by the owner, including for diseases brought onto the farm, and a penalty of $15,000 for a first offence and $25,000 for any subsequent offence.

In the case of this bill, being so fixated on trespass as the cause of biosecurity risks, it actually missed a very real biosecurity risk posed by interactions with wild animals. The sponsor of the bill in the House of Commons also pointed to a case in the United States of a Sonoma Valley avian flu outbreak that we’ve already heard a bit about as evidence of the need for the bill’s provisions.

At committee, the House of Commons sponsor asserted that the California Department of Food and Agriculture report issued on this case definitively connected protesters to the outbreak. However, the report actually says that the avian flu outbreak was most likely introduced by wild birds or the wind, possibly one of the two employees who were cohabiting but who worked on different farms in breach of established biosecurity protocols on both of the two farms or a handful of other plausible biosecurity risks found on the farms. Nothing in this bill would address or prevent risks to health and safety of animals based on those factors from their report.

This is not to say that people who trespass on farms where animals are kept cannot possibly introduce an infectious disease. This is possible. However, as we heard:

. . . it is simply orders of magnitude more likely to occur as a result of workers who have daily close interactions with the animals. . . .

For this reason alone, the amendment makes perfect sense. It is in line with the crucial need to take biosecurity on farms seriously. In fact, if the bill is to truly address biosecurity on farms, then this amendment does nothing more than remove the targeting of this bill to only one group — on the basis of a hypothetical possibility that is highly unlikely to occur — in order to apply its measure to all on farms and ensure that the bill meets its purpose in a more meaningful way.

The Agriculture Committee’s amendment would make the bill more likely to decrease biosecurity risks on farms. However, there is much evidence that much more is needed to be done. The evidence and facts that we heard at committee tell us so.

Colleagues, this is not a novel amendment. A previous iteration of this, Bill C-205 in the Second Session of the Forty‑third Parliament, was amended in this exact same way in the other place by their Standing Committee on Agriculture and Agri-Food. The amendment occurred for the same reason that Bill C-275 was amended by our Agriculture Committee.

So although this bill may have the proverbial belt and suspenders, if I may carry that discussion a little further from Senator Cotter’s analogy, it actually lacks the pants it needs to ensure that biosecurity needs are met.

To make sure that the bill truly addresses its stated purpose of ensuring biosecurity on farms, much more is needed, but at this point, this version of the bill ensures that its application is directed to all and responds to the activities that evidence indicates are most likely to be the sources of risk to biosecurity on farms, absent wild birds and other wild animals.

It is for these reasons that I will be voting in support of this report. Thank you, meegwetch.

Honourable senators, I would like to speak to the amendment, but I am not ready to do so at this time. I move that the debate be adjourned for the balance of my time.

It is moved by the Honourable Senator Dalphond, seconded by the Honourable Senator White, that further debate be adjourned until the next sitting of the Senate.

Is it your pleasure, honourable senators, to adopt the motion?

All those in favour of the motion will please say “yea.”

Some Hon. Senators: Yea.

The Hon. the Speaker pro tempore: All those opposed to the motion will please say “nay.”

Some Hon. Senators: Nay.

The Hon. the Speaker pro tempore: In my opinion the “yeas” have it.

Do we have agreement on a bell? Thirty minutes. Is there leave for 30 minutes?

The vote will occur at 6:48. Call in the senators.

Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

(Motion agreed to.)