Bill C-280 (Historical)

Gerry Ritz Battlefords—Lloydminster, SK

Mr. Speaker, there have been consultations among the parties and I believe if you seek it you would find unanimous consent for the following:

That following the conclusion of the debate on Bill C-280 all questions necessary to dispose of the second reading stage of the bill be deemed put, a recorded division demanded and deferred until 3 p.m. Wednesday, April 2, 2003.

Howard Hilstrom Selkirk—Interlake, MB

Mr. Speaker, there have been consultations between the parties and I believe you would find unanimous consent for the following motion. I move:

That, at the conclusion of debate on Bill C-280 all questions necessary to dispose of the second reading stage of the bill be deemed put, a recorded division requested and deferred until the end of government orders on Wednesday, March 26, 2003.

Rodger Cuzner Parliamentary Secretary to the Prime Minister

Mr. Speaker, it is a pleasure to speak to this private member's bill today. The government side of the House understands and respects what is at issue here and the grave concern there is in this particular area. We do have a problem, however, where it pertains to the legislation specifically and jurisdiction under the Constitution. I will take a couple of minutes to stress two specific points in those terms.

First, the bill would interfere with the provinces' ability to deal with matters within their legislative jurisdiction as they see fit. The federal government does not simply take over matters of provincial jurisdiction if someone is of the view that provincial laws could be tougher. This is exactly the rationale given by the member responsible for the bill. Perhaps this issue should be taken up directly with the provinces whose legislation she considers to be weak.

This is simply not a sufficient reason to impinge on provincial legislative powers under the Constitution. In fact, with this as the stated objective, the bill is likely unconstitutional on that ground alone. If the federal government legislates to strengthen valid provincial law, the federal government is in effect trampling on provincial rights. We cannot do this, otherwise our Criminal Code could end up covering every aspect of provincial law with more serious penalties.

A second and equally important reason as to why the bill's approach is not proper is that it devalues the true criminal nature of offences contained within the Criminal Code. Recent amendments to the Criminal Code on matters such as child pornography, terrorism, organized crime and existing offences such as sexual assault, murder, robbery, break and enter, and so on, would be devalued if we used the Criminal Code to remedy offences of a more regulatory nature.

Anti-poaching offences are clearly of a more regulatory nature. The activities that are prohibited are lawful if there is a licence issued. It is the licence that marks the dividing line between an offence and lawful behaviour. This is the hallmark of regulatory law, not criminal law.

In her last speech, the member for South Surrey--White Rock--Langley said that this was no different from there being driving offences in the Criminal Code. In fact, there is a very important difference. Driving offences in the Criminal Code are based on a standard of criminal fault, whereas provincial driving offences are not. Provincial driving offences are strict liability offences and Criminal Code driving offences require criminal negligence to be shown. The standards are different. The nature of the offence is different.

However what is being proposed in this legislation would be exactly the same offence with the same standard of fault: killing a wild animal without a licence. This provincial offence would simply be duplicated in the code.

In respect to driving offences, dangerous driving puts all of society at risk and so it is prohibited. It is prohibited criminally for the better protection of society as a whole. There is no licence for dangerous driving in any circumstances. The province never permits the kind of activity prohibited by the code.

The killing or taking of wild animals, on the other hand, is legal with the permission of the province with the issuance of a licence. It is only when there is no licence that the behaviour becomes unlawful. The absence of a licence is what sets apart lawful from unlawful. This is fundamentally different from dangerous driving provisions. The provinces do not authorize dangerous driving. It is potentially harmful behaviour and it is behaviour that is without qualification. In other words, the member's comparison is inapt.

The federal government has jurisdiction to legislate in regard to wildlife poaching where the poaching takes place on federal land, where trade in animal parts crosses a provincial boundary or has an international aspect, or where the subject matter is the preservation of an endangered species. In this regard, the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, the Canada Wildlife Act, the Species at Risk Act and the Migratory Birds Convention Act are all operative pieces of federal legislation aimed at protecting wildlife in various ways.

The federal government has not neglected its responsibilities. There are existing comprehensive laws to protect wildlife. In any case, if the member from South Surrey does not think these statutes are adequate, then her bill should have sought to amend these statutes.

There is no compelling reason offered for why matters covered by provincial laws and a myriad of specialized federal laws should now be included in yet another statute. The approach in Bill C-280 would create an even more complicated and fragmented regime of anti-poaching laws.

The member also mentioned that the bill would not encroach on provincial jurisdiction because it would not force the provinces to use the code. This is not a determining factor for whether or not a bill would be unconstitutional. It is not the preservation of provincial prosecutorial choice that is important. We must look to the constitutional basis for the proposed measures.

Is the member suggesting that this is valid criminal law? This is hard to sustain given that the very same matters are legislated by the federal government in non-criminal statutes and regulated by the provinces under a power that clearly is not criminal law.

I do not think the federal government should be in the habit of judging the adequacy of every provincial statute and then legislating improvements where it sees fit. This risks overstepping constitutional boundaries. If provincial legislation prescribes inadequate penalties for a particular kind of behaviour, then provinces should be encouraged to improve their laws. The government believes in working with provincial counterparts to solve problems that affect Canadian society. It does not believe in taking over unilaterally.

We cannot use the Criminal Code to remedy every deficiency in provincial law. We cannot simply duplicate every provincial offence in the Criminal Code and jack up the penalty. The bill essentially says that provincial wildlife poaching offences would now be criminal offences. This creates a dangerous precedent. It essentially declares the proposition that every provincial offence could be made a federal offence under the Criminal Code. In the absence of some link to a head of federal legislative power under the Constitution, this is unacceptable.

In addition, the bill is flawed in its approach to criminal law. It is inconsistent with existing criminal law in terms of procedure and in terms of penalties. The penalties provided are three, four and eight year maximum terms, depending upon the circumstances. These are unknown penalties under the Criminal Code. The penalty regime in the code is built on two, five, ten and fourteen year terms. There is no reason to create an entirely new grade of sentences.

Also, offences in Bill C-280 would be straight, indictable offences. This is grossly inconsistent with most criminal offences. Even offences like sexual assault are dual procedure, allowing the Crown to proceed summarily with simpler procedures where the circumstances suggest it is appropriate.

While we applaud the spirit behind the bill, the government cannot support it because it goes beyond achieving its objective in an inefficient and inappropriate way. There is a regime of laws in place that deals almost precisely with the same subject matter. There is no clear evidence that federal law in this area is inadequate. If provincial law is inadequate, then provincial law should be improved. There simply is no reason to duplicate existing offences in the Criminal Code, which is normally reserved for the conduct that attracts society's most harsh condemnation.

Alan Tonks Parliamentary Secretary to the Minister of the Environment

Mr. Speaker, if passed, Bill C-280 will create a new part XI.I in the Criminal Code and will create three new offences relating to the selling of wildlife. These offences will apply despite the provisions as has been pointed out of other federal acts of Parliament.

However the bill expressly states that the section setting out offences does not alter the application of any existing aboriginal or treaty rights, the point that was just raised by the member across the way.

The offences proposed in Bill C-280 would address three activities: the selling of wildlife in whole or in part; the killing or capturing of wildlife for the purpose of selling that wildlife in whole or in part; and finally, possessing wildlife for the purpose of selling wildlife in whole or in part.

It is worth noting at the outset that in contrast to penalty provisions found in the Canada Wildlife Act, the Migratory Birds Convention Act, 1994, the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act and the new Species at Risk Act, the offences in Bill C-280 are considered to be so serious that they must be proceeded with as has been explained by indictment only.

Providing for straight indictable offences is not an insignificant matter. I would like to take just a minute to examine the significance of providing for a dual procedure offence versus a straight indictable offence.

A dual procedure offence permits the prosecutor to proceed either by way of summary conviction or by indictment. There is a choice. The decision to do so will depend upon the circumstances of the particular case and therefore dual procedure offence models offer a great deal of flexibility for the penalty to fit the crime.

This is important in situations where the seriousness of a particular case may vary considerably. A summary conviction procedure can provide justice in an expeditious manner without compromising the quality of justice delivered. It is an appropriate procedure by which to address less serious instances of a particular crime. This flexibility is lost if the offences in Bill C-280 are classified as a straight indictable offence.

Restricting the offences to indictable offences also creates resource implications for the criminal justice system. Classification of an offence as an indictable offence means that the accused has an election as to the mode of trial, including an option to have a preliminary inquiry and a jury trial. There does not seem to be any valid policy reason for restricting the mode of trial to proceedings by indictment only.

In addition to the issue of maintaining flexibility in the justice system, there is another consideration. Penalties for new offences must fit within the Criminal Code in a sense that they are not disproportionate to the relative seriousness of other offences that may carry the same or lesser penalties. This is not an exact science but I suggest that the penalty provisions in Bill C-280 offend this principle of proportionality.

For example, it seems disproportionate that a second offence in relation to a threatened or endangered species carries a maximum penalty of eight years in Bill C-280 when the maximum penalty for an assault on indictment is five years. Further, the maximum penalties for offences in relation to threatened or endangered species of four years and eight years respectively are maximum terms that are unknown in the Criminal Code. This is another example of the inconsistency of these provisions with other penalty provisions in the Criminal Code. I also note that with a few exceptions most offences in the Criminal Code do not prescribe a higher maximum penalty for a second or subsequent offence.

Although the offences in Bill C-280 can involve serious commercial enterprises, I suggest there is a strong argument for saying that the penalty provisions as currently drafted are inconsistent with other offence provisions in the Criminal Code. As a minimum, it can be argued that they ought to be dual procedure offences.

In respect of the broader objectives of Bill C-280, I think most members of the House would agree that the goal of discouraging the selling of wildlife and wildlife parts, particularly wildlife which is threatened or endangered species, is a laudable one. The question however is whether this bill is the best way to achieve the goal.

This in turn raises a larger question: are the provisions of Bill C-280 in their essence about the prohibition of morally blameworthy behaviour which is traditionally associated with Parliament's exercise of its criminal law power?

Alternatively, is Bill C-280 more accurately characterized as a public welfare offence, which is traditionally associated with regulatory offences in a civil context? It is the position of the government that, from a constitutional perspective, Bill C-280 in its pith and substance is concerned with the regulation of wildlife rather than with prohibiting morally blameworthy behaviour. As such, the proposed amendments to the Criminal Code cannot be supported.

I would like to take this opportunity to briefly outline some of the features of the bill that are traditionally associated with the creation of offences in the regulatory context rather than with Criminal Code offences.

One important feature of the bill is that it does not apply equally to all Canadians. It expressly exempts from application any person who is authorized, pursuant to a federal or provincial permit or licence, to commit the acts which otherwise would qualify as an offence as long as the wildlife involved is not a threatened or endangered species. Exemptions of this nature are extremely rare in the context of the Criminal Code.

Bill C-280 also permits the Minister of the Environment to exempt from application of the act any person or class of persons in respect of a threatened or endangered species where, in the opinion of the minister, the exemption is necessary or in the public interest. A provision of this nature is at risk of being declared unconstitutional on the basis that the criteria are so subjective and general that they do not provide any real limits on the behaviour to be exempted.

Another feature of the act, which is not normally found in the Criminal Code, is that the Minister of the Environment is given the power to designate by regulation an animal or wildlife for the purposes of the act. Another provision would permit the Minister of the Environment to designate a species of wildlife as either an endangered species or as a threatened species provided that the minister had consulted with the committee on the status of endangered wildlife in Canada. Again these provisions are more consistent with legislation aimed at the protection and regulation of wildlife than they are with the provisions found in the Criminal Code.

In concluding my remarks today, I would like to commend the hon. member for South Surrey—White Rock—Langley for bringing this important issue to the attention of Parliament. The goal of the legislation is laudable. My inability to support the bill does not relate to the fact that the goal of the legislation cannot be supported. The lack of support for the bill is based on the fact that the mechanism chosen to achieve the objective is inconsistent with the Criminal Code and with other federal legislation governing wildlife.

I would like to thank the hon. members for their attention with respect to this bill, and again I would like to congratulate the member opposite for putting forward the spirit of the bill, with which we can all agree.

Alexa McDonough Halifax, NS

Mr. Speaker, I am pleased to have an opportunity to briefly participate in the debate on Bill C-280, a private member's bill addressing concerns about the selling, killing, capturing and possessing of wildlife, especially endangered species.

My colleague from Sackville—Musquodoboit Valley—Eastern Shore would surely have wanted to participate in the debate, however, he is in Halifax representing all the Nova Scotia members at the funeral of a beloved Nova Scotia leader, Dr. Ruth Johnson. She was committed to her community, her church, and most of all to her beloved Africville. She has inspired literally generations of Nova Scotians, both in the Afro-Nova Scotian community and beyond. The member is sorry for not being here this afternoon. Knowing that he is there expressing the condolences of myself and my party I am happy to speak in his stead in this debate.

I wish to congratulate the member for South Surrey—White Rock—Langley on bringing this private member's bill forward again. I know she had done so previously but it expired on the Order Paper. She has demonstrated that she has a real concern about unacceptable practices that are too apparent, not just in Canada, but in other parts of the world as well regarding the handling of wildlife organs, wildlife parts and so on. She has taken it upon herself to bring this issue out of the shadows and into the light of day, and that this is a concern that must be taken seriously.

There are many citizens who are concerned about this. The purpose of this private member's bill is to place this issue higher on the public agenda and demand the kind of action that is called for from governments.

I have noted in the previous debate and again in debate this afternoon that there have been concerns raised about whether the manner in which the member proposes to address the problem is the appropriate one, acknowledging that jurisdictionally this is a matter that belongs primarily at the provincial and territorial level. I think there is no question about that.

I know the member herself, in responding to some of those questions, has indicated in the past that it is not her intention in any way to crowd the jurisdiction of provinces and territories, or in some way displace them regarding the handling of wildlife. Rather, the intent would be to strengthen at the federal level, in the most extreme cases the Criminal Code, provisions that might in fact back up the regulatory measures and existing laws at the provincial level.

At the end of the day, it is not clear to me whether the justice ministry, for example, would be prepared to see this as an appropriate way to go. The member is to be commended for bringing the concern forward once again to the House of Commons.

There are some member, and I am not alone in this, who represent urban ridings. Those of us that represent urban ridings are not inclined to get involved in this kind of debate because there are not great numbers of wildlife, endangered species or otherwise, that may be at risk from the poaching and preying on our wildlife that is contemplated by the legislation.

I have the privilege of representing the city of Halifax. Although Halifax is very much an urban riding, because of the foresight of our pioneers in Halifax about the importance of public space and wilderness space, we happen to be blessed with wonderful Point Pleasant Park at one end of the city. On the north end of the peninsula of Halifax there is Seaview Park and on the outskirts of the mainland of the city of Halifax there is a great deal of green space that aims to achieve the same objectives set out by the member: to improve habitat, and protect and enhance wildlife in our constituencies.

Am I aware whether there is poaching for this purpose happening in my riding? Frankly, I am not. I have not heard from constituents about it. However, I know that whether this is happening in my backyard or not, there is a proud tradition in Halifax, and throughout Nova Scotia, of citizen-based initiatives, community-based initiatives and non-governmental organizations that have shown a lot of leadership around issues of natural habitat, and have focused on the preservation and enhancement of wildlife and so on. The member must be commended for addressing this concern in the bill that is before us.

I am not aware whether this member has consulted directly with aboriginal leaders and aboriginal Canadians throughout her own province on this issue. There is no group of Canadians which has more expertise and more demonstrated commitment to the responsible use of our wildlife and responsible management of our habitat than first nations and other aboriginal Canadians. All too often that expertise is not consulted.

We do not recognize often enough the available resources of aboriginal Canadians, particularly when they have had so little support from the government around the kind of sustainable practices that would help them lift their own communities out of poverty. They are not brought in often enough as the experts and advisers that could give the best possible advice to the Government of Canada and to any one of the 301 members who share concerns about these issues.

In closing, it is important for us to be addressing this issue. I will listen with interest to the debate because, while I support the spirit of the bill, I am not entirely persuaded that the bill that is now before the House is one that will be truly effective in the manner that the member would wish.

I listened with interest to the comments from the member for Ottawa Centre. He too indicated that he shared the spirit in which the bill was introduced. However, speaking as a private member, and I know he did not pretend to be speaking on behalf of the Government of Canada, he showed a certain amount of chutzpah by saying he was not sure that it would be the most efficient way of dealing with this problem.

After the embarrassment of his own government's handling of the endangered species legislation and the manner in which the national firearms registration has been handled, it is good to know that there are some members on the government side who are genuinely focused on the question of the most effective and efficient manner of dealing with issues that concern Canadians.

Bernard Bigras Rosemont—Petite-Patrie, QC

That is correct. It was under Robert Bourassa's Liberal government that Quebec passed that bill.

What did the federal government do 13 years later? It passed Bill C-5. Some of my colleagues here in the House voted for it. I will not name their ridings, but some of them were once ministers in the Quebec government. They agreed to a federal statute overlapping and duplicating legislation passed in Quebec in 1990.

Today we do not need a bill which, through the Criminal Code, will give more power to the federal government to regulate the sale of wildlife. Why? Not because we do not want the sale of wildlife to be regulated, but because Quebec, in some respects, has been proactive and already has distinctive legislation in this regard.

I can understand that some provinces have not been as proactive in this matter. But when a province has been proactive, it must be understood that the Criminal Code is a powerful tool, a powerful instrument for imposing measures on some provinces, among other things, for the sale of wildlife.

Depending on the infraction, under sections 165, 167 and 172 of An Act respecting the conservation and development of wildlife, there can be fines ranging from $500 to $16,400, prison terms of up to one year, and administrative penalties that could result in permits being suspended for up to six years.

Clearly, with the Act respecting the conservation and development of wildlife, Quebec is not simply banning the sale of wildlife, and that is made clear in section 69 that I just quoted. The act also provides for penalties, fines, prison terms and administrative penalities, to ensure that for the sale of wildlife, this is not just some obscure principle, but a principle that is strictly enforced when certain individuals decide to break the law.

In Quebec, there is a law with this objective. We fear that the federal government is interfering—as if it were not interfering enough—in an area of provincial jurisdiction. This is not necessary. This should be left up to the provinces.

Essentially, the bill's purpose is inconsistent with what the federal government has always said; the government opposite has always preached full partnership with the provinces in terms of enforcing environmental legislation, be it the Environmental Protection Act, the Species at Risk Act, or the Canadian Environmental Assessment Act.

When it comes to practising what you preach, however, the opposite happens. Take the example of the sub-agreement on environmental assessment or even the Canada-wide Accord on Environmental Harmonization. There are partnership principles, but why did Quebec not sign this accord?

When we consider legislation from the House, we realize that Bill C-280 contains essentially the same things as Bill C-5. This is unacceptable. The principles in the agreements must be reflected within bills from the House of Commons.

When we see that Bill C-280 on the sale of wildlife seeks to duplicate, to make it a crime, under the Criminal Code, to sell wildlife, when provisions already exist at the provincial level, we are led to question the wishes, not only of the federal government, but of this Parliament, since this motion and this bill were introduced by the opposition.

As we can see, it is not just the federal government proposing provisions which would duplicate existing legislation. On this side of the House, there are also members and political parties that share this vision of Canadian nation building.

If Quebec had not done its homework in this regard, I could almost understand the desire of the federal government to step in. Quebec was the first to adopt legislation on endangered species, and that was in 1990. It has taken the federal government an additional 13 years to adopt similar legislation. The difference is also noticeable when we look at our legislation on environmental assessment.

I will conclude by saying that we cannot accept a bill which, through the Criminal Code, would give more power to the federal government, when the work is already being done in Quebec and things work fine. We are not interested in setting aside the existing system.

Bernard Bigras Rosemont—Petite-Patrie, QC

Mr. Speaker, it is with great pleasure that I take part today in this debate on Bill C-280 put forward by my hon. colleague from South Surrey—White Rock—Langley. The purpose of this bill is to criminalize the selling of wildlife.

Every effort must be made to prevent this activity, which is unacceptable, both environmentally and socially. I find however that the Criminal Code is too often used to raise the issue of criminalization.

What is the consequence of using the Criminal Code to penalize certain activities, whether environmental or other? It gives the federal government both an opportunity and the legislative means to step into areas of provincial jurisdiction. As my hon. Liberal colleague said earlier, and I agree with him, legislation and regulations exist in the provinces to effectively manage this activity.

That is the problem, because the bill before us is an infringement upon provincial jurisdictions according to the distribution of legislative jurisdictions under the Constitution Act, 1867.

I believe it is important to remember that some provinces, including Quebec, already have a special regime to control the sale of animals. In Quebec, I will quote among others, the Act respecting the Conservation and Development of Wildlife. Section 69 says:

No person may sell or purchase an animal the sale of which is prohibited by regulation. Authorized sale. However, the government may, by regulation, authorize the sale of an animal referred to in the first paragraph according to such norms and conditions as the government may determine.

“No person may sell or purchase an animal the sale of which is prohibited by regulation.” That is what section 69 of the Quebec Act respecting the Conservation of Wildlife says.

The danger is that through this private member's bill the federal government will, under the Criminal Code, intrude into areas of provincial jurisdiction while some provinces, including Quebec, have already been proactive in this regard. Quebec has also been proactive through its legislation to protect species at risk.

Back in 1990, the Quebec National Assembly passed a bill to protect species at risk on its territory.