Bill C-15 (Historical)

John O'Connor

Thank you, Mr. Chair.

I am speaking to you from Quebec City. I was not able to be with you in Ottawa today.

I would like to thank the committee for allowing me to participate in this session by teleconference.

My name is John O'Connor, and I am the chair of the environmental committee of the Canadian Maritime Law Association.

Unlike some of our colleagues here, the Canadian Maritime Law Association has been around for many years, long before the federal Department of the Environment was commenced. In the marine field, as a matter of fact, one of the more important years was 1967. That was the year of the huge pollution, the very large oil pollution, in Europe that led to an international convention that is enforced today in Canada. This very important convention, which we call the civil liability convention, is enforced in this country. Canada is a member to this convention.

That was in 1967, and we, the Canadian Maritime Law Association, commenced our environmental committee immediately after that accident. We participated with the Government of Canada in the adoption of that convention, or at least in having input into the adoption of that convention, in 1969.

Canada did not join the convention, by the way, until 1989, but we did eventually become a member.

In the meantime, in 1973, Canada put together what was then part XX of the Canada Shipping Act, which was the very first piece of federal legislation in the marine field that had anything to do with civil liability and oil pollution.

Our committee has been around for a long time. I personally have chaired it for many years, and we have spoken to many bills. I must say that today is a fun experience for me. I'm always somehow in the group of the industry people who are usually speaking negatively about bills. Today, to hear all these committees speak positively about it, it's heartening. We too support much of the bill.

Our view is that many of the frustrations and problems that other areas of the environment have encountered are less present than in the marine field. In the marine field, when there is an unfortunate accident, or pollution, it's often very high-profile. The government does not sit back and do nothing. On the contrary, our experience is that not only is the Department of Transport very active but also even the Department of the Environment itself has taken a great interest in marine activities over the years.

Just as reference, you may think of Bill C-15 in 2005 and Bill C-16 in 2009. I was flattered to be asked to speak to those bills in both the House and the Senate, by the way.

I think what I would like to do, in the time I have, is simply underline that our association is in favour of anything that will assist in reducing pollution or improving the environment. The bill, then, certainly is not something we're against. However, there are three points I'd like to raise, because I think there are three flaws in the bill and I just want to bring them to your attention. Perhaps this committee will be able to address some of these problems.

First, you have to understand how the bill is divided. Clause 16 creates the environmental protection action. Clause 19 talks about remedies. Clause 22 talks about a true judicial review under the Federal Courts Act in section 18.1. Finally, clause 23 creates a new civil action.

It's a bit complex, the way they've done it, but I've heard people today talking about “patchwork” application. To my mind, patchwork application means that in different parts of the country there are--or there are not--different pieces of legislation available for use in environmental matters. But patchwork doesn't just mean horizontal. It can also be vertical. The problem we have in Canada is that with all the good faith we have in trying to settle these problems, we have built overlapping levels of legislation. This is a problem that the CMLA has spoken to before.

In other words, we adopted these international conventions, which are very strict and very clear. We tried to create clear and obvious remedies for when environmental problems involve vessels. Then we'd go and adopt Bill C-15 and Bill C-16, which give almost overlapping remedies without any clarity as to whether the convention should overrule or be overridden by the legislation.

I'm sure you know that Parliament is sovereign enough that if it enacts a piece of legislation, the fact that it may have adopted an international convention does not mean that the convention overrules. It's the contrary: Parliament is so sovereign that it can decide not to respect its international obligations, if it wishes.

Our view is that we should have some clarity on how the conventions and the legislation fit together. To do so, we have addressed three points.

The first is in clause 19 of the bill. Where we're talking about the remedies under clause 16, there seems to be something that I personally do not understand. Subclause 19(2) says, “If the Federal Court finds that the plaintiff is entitled to judgment”, it may “(a) suspend or cancel a permit or authorization” of the defendant.

Yet clause 16 clearly states there's only one defendant; ìt's called “the Government of Canada”. The Government of Canada does not hold permits, so I'm wondering how subclause 19(2) fits into the scheme. I think it may be a bit of an oversight, unless I'm misunderstanding something.

My second point has to do with clause 23. Clause 23 creates a civil action. The Canadian Maritime Law Association feels that the civil action that is created in the marine field is not necessary, for the simple reason that we already have civil actions under our CLC, the civil liability convention. Then they added civil actions under the environmental legislation that was amended under Bill C-16 and Bill C-15, notably the Canadian Environmental Protection Act, 1999, and the Migratory Birds Convention Act, 1994, both of which allow a civil action that seems to overlap the CLC action, which is enacted under the Marine Liability Act. Now we're adding a new civil action.

We do not speak out for any environmental section except marine: we don't believe it's necessary to have a new additional civil action in clause 23 for the marine world. But again, we're not speaking about other sectors of the environment.

We noted that subclause 23(3) clearly states that it “is not a defence to a civil action” that the activity was authorized by an act of Parliament or a regulation. This is in contradiction to the Ontario legislation and frankly seems a bit surprising. If there is federal legislation on the table saying you are supposed to or you are enabled to do something, and it somehow comes into a pollution question, at least in the marine field, it's difficult to understand how this would work. You would say that you're going to have someone taking a civil action and that you cannot set up a defence that it's permitted by legislation.

You will also notice that paragraph 23(3)(b) goes on to say “there is no reasonable or prudent alternative”. Unlike other sectors, you can think of certain pollution in the marine field that is unfortunately absolutely necessary. For example, a vessel is unable to have a propeller that's turning unless there is some lubrication of the propeller shaft.

It's provided for in federal legislation that this small amount of pollution is legal. It has to be. Otherwise, the ship would not be able to function Therefore, it's baffling as to how this would work. You would have someone saying you're polluting because of your propeller shaft. We would be saying that it's provided for under the legislation and under the international conventions and someone would say that's not a defence.

With regard to clause 23, we would suggest that it be limited to fields other than the marine field. At the very least, it would seem that subclause 23(3) goes one step too far.

I would like to conclude by talking about international conventions. We've heard people speaking about international conventions this afternoon, and in our submission to Parliament we have added a suggested clause, which is on page 3 of our submission. It's in English and in French. Simply, why not add a clause to this act stating that it is intended to complement our international convention obligations and rights, not to over-ride them? That way we would at least know that Parliament intends to have the international conventions it has adhered have priority over this act.

As a final point, I would like to say--and this is my own error, as I put this together in great speed and haste to try to get it to the committee in time--that on page 2, I refer to sections 54, 55, and 57 of the Marine Liability Act because I was looking at my own handwritten copy. But in fact that was changed with Bill C-7 in 2009 and should read sections 48 and 78. I apologize for that error; it is entirely my own.

The other thoughts I've expressed are those of my committee.

Once again, thank you for the opportunity.

Kaity Arsoniadis Stein

Why don't I start here? I can tell you that right now the international community is watching the Bill C-16 developments very closely. Right now, our global economy is really suffering. Canada has fared pretty well. Our banks are doing better than most banks globally and have an excellent track record, so there is a revived interest in Canada for investment.

Internationally, on the concerns with what Bill C-15 did, a lot of companies, blue-chip, great companies that are currently here, did risk assessments to see whether they should remain in Canada or do they owe it to their employees and shareholders to go to a less hostile environment? We did see downsizing, and we do know directly of two companies that were waiting to hear what would have happened with the result of Bill C-15. When Bill C-15 became law, these two companies went to Singapore. That's a fact, and we've heard of others.

The international shipping community is a small community and the links are tremendous. For example, the chair of ISAC is also the vice-chair at the International Chamber of Shipping. He's the vice-chair of the London Club, one of the largest P and I clubs in the world. He works with the Magsaysay Group. It is his company. They employ the biggest chunk of world seafarers globally. The connections go on and on. It's a small community.

One of our trading partners for Canada is Asia, and I can read here the Asian Shipowners' Forum joint statement: “The meeting was attended by 119 delegates from the Shipowner Associations of Australia, China, Chinese Taipei, Hong Kong, Japan, Korea...”. At page 12, they highlight the Canadian Migratory Birds Act. I'll read from the statement: “The Forum noted the amendments to the Canadian Migratory Birds Act (1999) made by the adoption of Bill C-15 and continues to support the concerns expressed by the Canadian shipowners.”

Kaity Arsoniadis Stein

In terms of consultation from Transport, when I read about this bill in the paper, I immediately e-mailed the people from Transport who we work with and the director general at Environment Canada and his group. They were in London at the time for the IMO meetings. They e-mailed me back. They didn't know about this bill.

I spoke to them here yesterday, and they said, “Kaity, it was your letter that alerted us to the bill.” I was with the group in IMO at the MEPC 58 meetings back in October, and I can tell you that our Canadian Bill C-15 is raised on the international level.

I brought a few examples. I don't know if you'd like me to read from a circular.

Paul MacKlin Parliamentary Secretary to the Minister of Justice and Attorney General of Canada

Mr. Speaker, it is a pleasure to speak to the provisions of Bill C-50, an act to amend the Criminal Code relating to the cruelty to animals.

The legislation has a long and notorious history in Parliament. Members will no doubt remember that the legislation has been before the House on a number of occasions over the past five years. These animal cruelty amendments were first introduced in Parliament in 1999 as part of an omnibus criminal reform bill called Bill C-17 but died on the order paper. They were later reintroduced as another omnibus bill, Bill C-15, in a subsequent Parliament. That bill was split into two portions and the portion which contained the animal cruelty amendments again died on the order paper. The amendments were next re-tabled as Bill C-10 which were again split and again the portion with animal cruelty died on the order paper. In the last Parliament, these amendments were known as Bill C-22. Today we are discussing the same amendments in Bill C-50.

The history of the bill is a long and winding road, which includes two highly unusual incidents of bill-splitting and several messages being sent between this and the other chamber. Given the occurrences of rare parliamentary procedures and ping-ponging of the legislation, a person unfamiliar with this history might come away with the impression that the legislation is still controversial and lacks broad base support.

I would like to take this opportunity to remind the members that in actual fact this House has passed this legislation several times in the last two years with support from members on both sides of the House. In addition, hon. members should recall that the legislation has a history of accommodation and compromise that has brought together groups that advocate for animal welfare, as well as groups that advocate for people whose livelihoods depend upon the use of animals. Let me explain.

Over the past five years there has been spirited and comprehensive debate about the impact of the legislation in both this House and the other place, in committees in both places, in the public domain and in the media, not to mention the innumerable meetings between stakeholders and various government officials. As a result, specific amendments have been made on a number of occasions to this bill. These were not legally necessary changes, I would submit, but were adopted by the government with a view to providing greater clarity about the issues of concern.

These accommodations did not compromise protections against animal cruelty. The end result was that a large number of industry stakeholders came to support the legislation. The ministers received the written support of a broad based coalition of industry groups, including a letter from earlier this year urging the government to re-table these very amendments just months before this bill was tabled.

This coalition of stakeholders includes representatives from the agricultural sector, animal research and the trapping industry. The legislation is not meant to and will not negatively impact on the lawful and humane animal related industries and these industries have now acknowledged that. Of course, animal welfare organizations, as well as veterinary associations, police associations and provincial attorneys general, continue to support the legislation wholeheartedly.

The only difference between this legislation and that which was last passed by this House as Bill C-22 is the inclusion now of a non-derogation clause that reaffirms the applicability of existing constitutional protection for traditional aboriginal practices. This was included after discussions between the minister and concerned senators over the potential impact of the legislation on aboriginal persons.

In every other respect, the legislation we have before us today mirrors exactly that legislation which was passed by this House many times already and which stakeholder groups on all sides of the issue urged the government to re-table.

With that brief history, let me make a few basic points about the legislation.

The first point to note is that Bill C-50 is not about new law. It is about better law. The criminal law already contains a range of offences that prohibit cruelty to animals and has since 1893, but the law is a messy jumble of archaic terminology and piecemeal amendments made on a few occasions since 1893.

The first goal of the bill therefore is to modernize, simplify and rationalize the law as well as to fill in certain gaps in legal protection. This objective is accomplished by a variety of measures, including: removing the distinctions in the law that originate from another century; removing overlapping offences; improving the coherence and functionality of the law by removing problematic language, such as “dogs, birds and other animals”; eliminating the illogical notion of “wilful neglect” that is not found anywhere else in our criminal law; and filling in gaps by creating new offences of killing an animal with a brutal or vicious intent and training an animal for the purpose of fighting another animal.

One other change that bears mentioning is the creation of a new chapter of the Criminal Code devoted specifically to animal cruelty. The new chapter would not change the legal substance of offences but would allow us to stop categorizing animal cruelty as property crime and to symbolically reflect that animal cruelty is most appropriately characterized as a gross violation of public standards of acceptable behaviour, as oftentimes it is a serious offence of violence. In fact, there is increasingly scientific evidence of a link between animal cruelty and subsequent violent offending against humans, particularly in the context of domestic violence. The women and children who are forced to witness animal cruelty know that it is not about property damage and it is time our Criminal Code recognized this reality.

The second goal of the amendments is to increase and enhance the penalty regime for animal cruelty offences. The way that society traditionally recognizes the seriousness of a particular conduct is through the penalty that it prescribes for that conduct.

Bill C-50 would make the law more coherent by clearly distinguishing criminally negligent conduct from wilful cruelty for the purposes of providing different sentencing ranges. The person who keeps too many cats and is unable to care for them all commits a different kind of criminal offence than one who skins a cat alive, and Bill C-50 would ensure that penalty ranges reflect this.

The current maximum penalty for animal cruelty, six months in prison or a $2,000 fine or both, would be increased accordingly for both kinds of crime. For intentional cruelty, which would be made a hybrid offence, the maximum penalty on indictment would be increased to five years and on summary conviction to eighteen months. For criminally negligent offences, the maximum sentence would be increased to two years.

Another change is the removal of the current two year cap on orders prohibiting a convicted offender from owning or living with animals. The length of a prohibition order would be in the discretion of the judge and he or she would make the final determination. The courts would also be given a clear power to order a convicted offender to repay to a person or to an organization, which most likely would be the animal welfare society, the costs associated with the caring for the animal the offender was convicted of abusing.

These penalty enhancements, coupled with the other set of reforms that bring greater simplicity, coherence and rationality to the laws, will work together to signal to judges, prosecutors, police and the general public that the abuse of animals is about violence and that cruelty is a matter of serious criminal law.

To be effective, good criminal law must not only provide adequate penalty ranges, it must also be clear, coherent, complete and must reflect the true nature of the misconduct and the societal values at stake. The full range of legal reforms is necessary to bring our 19th century criminal laws in this area into the 21st century.

Over the course of many years that animal cruelty amendments have been before Parliament, Canadians have consistently voiced their strong support for legislative change in this area and their expectation that the legislation will be passed without delay. I urge all members in the House to ensure that occurs as soon as possible.

The Deputy Speaker

Order, please. I have the honour to inform the House that a communication has been received as follows:

Mr. Speaker:

I have the honour to inform you that the Honourable Morris Fish, Puisne Judge of the Supreme Court of Canada, in his capacity as Deputy Governor General, signified royal assent by written declaration to the bills listed in the schedule to this letter on the 19th day of May, 2005, at 4:05 p.m.

Yours sincerely,

Barbara Uteck

Secretary to the Governor General

The schedule indicates that royal assent was given to: Bill C-10, an act to amend the Criminal Code (mental disorder) and to make consequential amendments to other acts--Chapter No. 22; Bill C-15, an act to amend the Migratory Birds Convention Act, 1994 and the Canadian Environmental Protection Act, 1999--Chapter No. 23; Bill C-40, an act to amend the Canada Grain Act and the Canada Transportation Act, Chapter No. 24; Bill C-13, an act to amend the Criminal Code, the DNA Identification Act and the National Defence Act, Chapter No. 25; and Bill S-25, an act to amend the act of incorporation of The General Synod of the Anglican Church of Canada.

It is my duty pursuant to Standing Order 38 to inform the House that the question to be raised tonight at the time of adjournment is as follows: the hon. member for Pitt Meadows—Maple Ridge—Mission, Fisheries.