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.