Mr. Speaker, I want to thank my hon. colleague who just completed his remarks. I would just like to point out that we would have a better chance for unanimity if we were to support the amendments brought forward by our colleagues from the other place, as the hon. member mentioned.
I rise to oppose the very narrow and unusual motion that we have before us today and to urge the House to accept the amendments from the other place to Bill C-10B.
We have two legislative chambers in our system. This is the second time the House has considered amendments on this bill from our colleagues in the other chamber. That is very unusual. Insistence on amendments by the other house is not at all a common occurrence. When it does it, it has a reason for doing it. We have a duty to treat very seriously this unusual, non-partisan, principled initiative by the other chamber.
Two explicit mandates of the other chamber are highly relevant to this debate. One is the obligation to apply sober second thought, to look carefully and precisely, in a non-partisan way, at proposals which might be denied the careful attention they require in the House.
I note that these amendments are not at all partisan. They are supported by members of the Liberal Party in the other place, as well as by members of my party. Otherwise, they would never have been adopted because the Liberal Party has a majority in that other house, too. These amendments are driven by principle, not by partisanship, and so they should be here.
The other obligation of the other place is to protect minorities, in this case principally the aboriginal minority of Canada whose livelihoods depend disproportionately on hunting and fishing and who are faced with a double blow in the language the government insists upon.
First, the government's language calls into question again the practical existence of traditional rights which have existed from time immemorial, which have been upheld by the courts and have been affirmed by clause 35 of Mr. Trudeau's famous Constitutional Act of 1982. It is ironic that the present temporary Prime Minister desperately claims Mr. Trudeau's accomplishments as part of his own threadbare legacy in the Constitutional Act and at the same he insists on this language which dilutes those very constitutional guarantees.
Second, the government's language says perversely that if those traditional and established aboriginal rights are ever to be exercised, that can occur only after the immense expense of a trial and an appeal.
We are not dealing here with Power Corporation, Canada Steamship Lines or other wealthy corporations with tailor-made tax havens in Barbados. We are speaking of aboriginal people living on the most marginal of incomes. The double standard of the government could not be more clear.
The government is prepared to change the rules to give giant shipping corporations new tax loopholes and now it tries to change the rules to take away from low income aboriginal people, whose major income is through hunting, one of the few protections they enjoy.
The amendment proposed by the other place would stop that double standard, and I would hope members of this House would have the conscience to support that amendment here.
The parliamentary secretary stated on September 25, 2003 that this legislation has had a long journey. Indeed, it has. My party has been unequivocal in its support for improving and enhancing the Criminal Code provisions dealing with animals and cruelty to animals. However this has been a troubled bill precisely because for so long government ministers have failed profoundly to understand the realities of life in rural Canada. That has been a recurrent blemish on the government.
It is devastatingly evident today in the failure to provide effective help to farmers and to ranchers whose futures have been devastated by the BSE outbreak.
While the Prime Minister was in New York not talking to the one American who could speed up the full opening of the borders, President Bush, farmers and ranchers on the prairies were killing their cows because federal aid has been too slow at home and federal action has been ineffective in the United States.
Each time the House has rejected the amendments of our colleagues in the other house, they in the other house have sat down, considered the arguments of this House and refined the amendments. The amendments before us today are refinements and improvements to the bill.
Let us go back to June 2002. Members of Parliament from all parties were clearly concerned about the impact of the bill on traditional farming and ranching practices. There was concern that branding or castration of farm animals might be considered to be causes for charges to be brought against farmers and ranchers.
The Edmonton Journal reported on June 4, 2002 that the current government promised, “to consider future amendments to parts of animal cruelty legislation”. The Minister of Justice averted possible trouble by agreeing “to look favourably on Senate amendments to the bill”. It was later reported that while the government did not intend to bring in amendments in the other place, the justice minister “would consider carefully an amendment if the Senate passed an amendment”.
Subsequently, the definition of animal proposed by the Senate has resolved some of these concerns. That amendment has been accepted by this House. The Senate is now proposing that the government drop its insistence on the defence that is defined as “killing without a lawful excuse” and substituting instead the words “causing unnecessary death”. It is intended to limit a blanket prohibition against killing animals.
We do not want to see farmers and ranchers charged with cruelty to animals for attempting to cull an epidemic of groundhogs on the farm or dealing with predators. Real life is more complicated than the laws we write here and our laws must reflect the reality which ordinary Canadians have to face as they earn their livelihoods.
Rather than having aboriginal people continually seeking redress of the courts to prove their rights, the amendment, which the government proposes to reject, would clarify that no aboriginal person would be convicted of an offence if the pain, suffering, injury or death were caused in the course of traditional hunting, trapping or fishing practices, provided that any pain, suffering or injury caused was no more than is reasonably necessary in carrying out traditional practices.
The Senate amendment, be clear about this, would not create any exception that would allow an aboriginal person to commit cruelty against an animal. In fact the Senate felt it would be in accordance with section 35 of the Constitution Act of 1982 to give aboriginal peoples an opportunity to exercise their constitutional rights that protected traditional hunting and fishing practices without fear of being arrested and unfairly accused of cruelty to animals. In other words, the rights of the aboriginal people would be recognized at the moment of the arrest rather than after a Supreme Court decision over an appeal of a conviction.
The House of Commons now has the opportunity, as the courts have done for 20 years, to do everything it can to ensure that federal laws protect the rights of aboriginal people. In the other place our aboriginal colleagues argued passionately that here was an opportunity to protect aboriginal hunters who were trying to earn a living to feed their families.
The government has made a point of naming aboriginal Canadians to the other place. Presumably that was not just for window dressing. Presumably it was because they knew those aboriginal members of the other place would bring their special knowledge and that they would be listened to by members of both Houses who were not aboriginal, who did not have that experience.
If that is so, I ask the House to listen to what our colleague Charlie Watt said in a standing committee in the other place on legal and constitutional affairs. He said:
Many of the traditional tools utilized by Aboriginal people—especially the Inuit in the far north—are for conservation purposes so that time, energy, and wildlife are...not sufficiently covered by law in terms of recognition of those traditional activities—perhaps even to the point that the lawmakers do not understood them well.
For that reason, we made a sincere attempt to move an amendment such that an Aboriginal person, if charged, would at least have a reasonable defence to rely on. We do not have many provisions in law that are clearly made for Aboriginal people to protect themselves...
Thus spoke an aboriginal member of the other place, appointed because of his special knowledge by this government. What the government is proposing in this motion is to strike away one of the few specific protections that our colleague Charlie Watt, in the other place, has just referred to.
The government is arguing in its rejection of the amendment that there is no clarity as to what traditional practices are in the criminal law context and that the police would be confused in laying charges. We all know that training has been provided to police in other cases of complicated legislation regarding, for example, organized crime and law enforcement.
Justice Canada could easily offer to train police officers in cultural awareness of traditional aboriginal activities. It would not be a big challenge. It would not have to train officers in Toronto, or Vancouver, or Montreal, or Winnipeg or Calgary where no one claims an aboriginal right to hunt. The choice is simple. Do we train a few officers or do we impose an unfair burden on whole populations of aboriginal hunters?
The fourth amendment was to restore the element of colour of right that is currently applicable to criminal property offences.
The amendment put forward by the other place stipulated, and I quote:
No person shall be convicted of an offence under this Part where he proves that he acted with legal justification or excuse or with colour of right.
This seemingly complex defence is defined as follows: in R. v. Watson, the Newfoundland Court of Appeal said, in 1999, that the colour of right is the honest belief in a state of facts or law which, if it existed, would deny the existence of a guilty intent to commit a crime, meaning mens rea .
That is currently stipulated in section 429(2) of the Criminal Code.
Up until last June, the justice minister had rejected this amendment, arguing that it would reverse the onus of proof and require the accused to prove his or her innocence beyond the balance of probabilities.
In the Watson case, both parties had agreed that the colour of right would not call for a reverse onus.
However, in its second message to the House of Commons, the other place decided to reintroduce its amendment, since the members of its Committee on Legal and Constitutional Affairs had agreed that the phrase “to the extent that they are relevant” was a pointless and unjustified attempt to limit the colour of right, which could eventually hurt some defendants or lead to unjustified convictions.
Members of the other place have debated this issue thoroughly. We should very seriously consider accepting those amendments. We should not provoke an unnecessary fight between chambers over these measures simply because their common sense and good judgment disagrees with the drafter's preferred by the government of the day. It is not often that the other chamber insists on its amendments, and we should consider carefully the reasons why it has done so today.
Canadians want improved legislation to deal with cruelty to animals. This type of legislation has broad ramifications and the Senate amendments clearly improve the bill, providing a balance between protecting animals and protecting the livelihood of Canadians. We should accept these amendments and get this legislation working to deal with genuine cases of cruel treatment of animals.
