Fisheries committee  Yes, again I think if the fundamental premise is that the breeding is being prohibited because all the whales born in captivity will face an inherently cruel life, then it would likely be constitutionally sound under Parliament's criminal law jurisdiction.

Fisheries committee  I can just repeat that breeding and impregnating cetaceans would be prohibited under the amendments to the Criminal Code but there is an exception when a licence has been issued by the provincial lieutenant governor in council.

Fisheries committee  They are fairly specific words. It is not so broad—when you read that in connection with it being an offence to just have custody or control, you can see quite a dramatic difference between what's described in the offence relating to performances for entertainment versus just the mere fact of having it.

Fisheries committee  Can you repeat that question?

Fisheries committee  Right. What I can tell you is that if you find that there is a sound scientific basis for concluding that it is inherently harmful and cruel to the animals to keep them in captivity, that's probably a sufficient basis to ground a federal criminal offence. At the same time, the same type of action is subject to provincial animal welfare laws, which do find their home in property and civil rights in the province.

Fisheries committee  From what I understand, Marineland is the one facility where breeding takes place. In Ontario, in 2015, the legislature made amendments to their animal welfare legislation that specifically prohibited the breeding of orcas, which is one type of whale. They put in place a number of other regulations setting out standards of care for other marine mammals, including cetaceans.

Fisheries committee  I don't think you would have to look at it as a question of retroactivity or retrospectivity. What the criminal law is always trying to do is prohibit human beings from undertaking certain actions. If there are beluga whales that are already pregnant by virtue of the human action of handlers and other people at Marineland, that's activity that has already happened.

Fisheries committee  It definitely seems apparent that the way the legislation is drafted, from a criminal law point of view, it aims to prohibit breeding, save for that one exception where it's done for scientific purposes and is authorized by the province. To be honest, we don't have any precedents in the Criminal Code for criminal offences around breeding animals.

Fisheries committee  You mean if the animal is sent outside of Canada?

Fisheries committee  What would that mean? The exportation is not covered by the Criminal Code provisions.

Fisheries committee  Yes. It would seem to be a reason not to authorize the export of the animal.

Fisheries committee  Certainly provincial legislation aims at the prevention of animal cruelty and the protection of animal welfare.

Fisheries committee  I think there is a broad interpretation and then an interpretation that focuses on the people organizing the event.

Fisheries committee  Well....

Fisheries committee  Well, the sponsors of S-203 have indicated that they are approaching it through the lens of the keeping of cetaceans in captivity.