Bill C-292 (Historical)

An Act to amend the Criminal Code (selling wildlife)

Criminal Code

[Paul MacKlin, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, I am very pleased to speak to the provisions in Bill C-292, which is an act to amend the criminal code dealing with the sale of wildlife. If passed, the bill would create a new part in the criminal code, that is part XI.1, and would create three new offences relating to the selling of wildlife. These offences would apply despite the provisions 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 offences proposed in Bill C-292 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 the penalty provisions found in the Canada Wildlife Act, the Migratory Birds Convention Act of 1994, the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act and Bill C-5, which is a bill respecting the protection of wildlife species at risk in Canada which is currently before the House, the offences in Bill C-292 are considered to be so serious that they must be proceeded with by way of indictment.

This approach is inconsistent with the classification of offences elsewhere within the criminal code. For example, the offence of sexual assault is classified as a dual procedural offence, which means that the crown may elect to proceed by summary conviction or by indictment. It would appear to be inconsistent from a policy point of view to classify the selling of wildlife as an indictable offence when other offences considered more serious by society are classified as dual procedure offences.

Also, there would be a cost implication to the provinces and territories if straight indictable offences were created. All persons charged with any offences under the act would have the choice of a trial, including the possibility of a jury trial. The maximum penalties available in Bill C-292 range from two years to eight years depending upon whether the offence is a first or subsequent offence and also depending upon whether the wildlife involved is a threatened or endangered species. As an indictable offence, there is no limit to the amount of the fine that may be imposed.

Most members in the House would agree that the goal of discouraging the selling of wildlife and wildlife parts, particularly wildlife which is threatened or endangered, is a laudable one. The question though is whether or not this particular bill is the best way to achieve this goal. This in turn raises a larger question. Are the provisions of Bill C-292 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-292 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-292 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-292 also permits the Minister of the Environment to exempt from the 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”, and I will underline the word opinion, “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 bill, 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 as 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 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 provisions found in the criminal code.

As noted by constitutional law expert Professor Peter Hogg, “A criminal law ordinarily consists of a prohibition which is to be self-applied by the persons to whom it is addressed. There is not normally any intervention by an administrative agency or official prior to the application of the law”.

A final feature of the bill I would like to note is that in the criminal code context, search and seizure powers given to peace officers and public officers are very carefully crafted. This is in keeping with the principle that the state powers of intrusion on the privacy of individuals should be used with restraint. The search and seizure provisions in the bill are not entirely consistent with those elsewhere in the criminal code. I think there has to be a very clear policy reason for diverging from provisions used in respect of all criminal code offences, including the most serious offences.

Finally, I think the interests of justice are served by a consistent and co-ordinated approach to the subject areas within the legislative competence of the federal government. Some of the provisions of Bill C-292 overlap those in the current wildlife legislation and also those in Bill C-5. This is problematic to the extent that discrepancies exist between these various pieces of legislation.

In view of the constitutional competence of the provincial governments to regulate the use of wildlife on provincial lands, I would urge those jurisdictions that are experiencing problems with the sale of wildlife or wildlife parts to work with their respective governments to address this problem in a regulatory context. This approach is preferable to that in Bill C-292, which incorporates into the criminal code mechanisms that are more often seen in regulatory offences.

In conclusion, the provisions of Bill C-292 cannot be supported because they are potentially in conflict with other federal legislation and are inconsistent with other provisions of the criminal code.

[Val Meredith, Canadian Alliance, South Surrey—White Rock—Langley, BC]

moved that Bill C-292, an act to amend the Criminal Code (selling wildlife), be read the second time and referred to a committee.

Madam Speaker, I am pleased to finally have the chance to debate Bill C-292. I first introduced it in the 35th parliament on April 30, 1996. It predates the government's first effort at its species at risk legislation which was introduced six months after my private member's bill but because of the proverbial luck of the draw, this is the first opportunity to debate my private member's bill.

The mode of the bill is quite simple. It is to protect animals. As a British Columbian, I was horrified several years ago to hear how bears were being slaughtered for their body parts. In 1995 almost 25% of the bears killed were poached. That means almost 1,300 bears, including 90 grizzly bears, were illegally killed. Bear parts can sell for thousands of dollars yet in most cases the provincial penalties pose very little deterrent.

Two years ago two residents in my community of Surrey, British Columbia were fined $7,000 and sentenced to 17 days in jail for selling 18 gall bladders from illegally killed bears. Considering that at that time the bear gall bladders were fetching $800 apiece on the street, there is a need for tough criminal penalties to deter organized poaching activities.

There is federal legislation which covers a small portion of what this activity entails. It is the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act or WAPPRIITA. It imposes similar types of penalties that are found in Bill C-292 but only for offences where the crown can prove that the wildlife or the wildlife part actually crossed provincial or international state boundaries.

WAPPRIITA does not cover any offence that takes place in one province. Only the provincial legislation is in place for these offences. What I am hoping to do with Bill C-292 is to fill this loophole, ensuring that all offences of this type can be prosecuted under federal legislation.

The bill aims to criminalize the most serious cases of wildlife poaching by providing law enforcement and wildlife officers with the discretion to either pursue the most serious cases of poaching through the criminal code or through existing provincial legislation. The bill would make it a criminal offence to sell wildlife or any part thereof; to kill or capture wildlife for the purpose of selling that wildlife or any part thereof; or to possess wildlife or any part thereof for the purpose of selling that wildlife or part thereof. It sounds repetitive but that is how one has to write legislation.

This proposed section would not apply to any person who has a valid licence, permit or exemption order issued by either the federal or provincial governments. Offences under this section would be listed as an enterprise crime offence. The reason for this is to allow law enforcement officers to use the proceeds of crime legislation to seize assets of individuals or organizations involved in organized poaching schemes.

The bill does not create any new offences. The provinces would still have jurisdiction to determine what activities are deemed illegal. It does not encroach on those provincial jurisdictions. The bill would only give law enforcement or wildlife officers the discretion to proceed with prosecutions through their own provincial legislation or in cases of more serious offences, through the criminal code.

It is very similar to the way serious motor vehicle offences are handled, where law enforcement officers are given the discretion to either prosecute them through provincial legislation or to prosecute them through the criminal code. The bill would give the provincial authorities an opportunity to determine when something is serious enough and they want to have steeper and stiffer penalties to try to stop it from occurring.

As the only reason members might not support the bill is they feel it would encroach on provincial jurisdictions, I reiterate and stress that it would not encroach on provincial jurisdictions. It would allow for a greater variety of charges and the possibility to make sure that the matter is treated the way it should be treated if it is a serious offence.

I repeat that the bill has been around for a long time. I introduced it into the system back in 1996. The bill the government has put forward, the species at risk legislation, was introduced approximately six months after my bill and still has yet to be passed. During the period of time from when the federal government introduced its legislation that many years ago until now, there has been absolutely no protection for wildlife that is being poached across Canada. Because my bill does not have to deal with the more complex issues such as habitat and compensation, it would at least allow some sense of protection for people who are concerned about protecting species at risk.

One other difference between Bill C-292 and the government's species at risk legislation is that Bill C-292 would apply to all wildlife, not just species at risk. Black bears are not a species at risk. Believe me there are a lot of them in people's backyards in the Vancouver area right now. The point is that people are illegally killing bears, black bears and grizzly bears, who some would argue might be species at risk. People are not killing them for their meat. They are not killing them because they are hungry, not because they have any use for them as food, but simply because certain bear parts have become a commodity.

The brochure “From Forest to Pharmacy: The Global Underground Trade in Bear Parts” outlines the number of bears and the number of wildlife that are killed for their parts. The parts are exported for use by individuals who feel there is some reason they may want gall bladders or bear paws. There is evidence that this is a serious situation and should be dealt with.

As I said earlier, the bill would protect all wildlife species that are being slaughtered, from the bighorn sheep in the Rocky Mountains, to grizzly bears, to black bears, all animals and not just endangered species.

The bill deserves to be supported. It quite simply outlines an area where we can try to address some of the issues with regard to the illegal slaughter of animals. I hope that all members in the House are able to support the legislation and allow it to go through to provide some protection for animals.

[Val Meredith, Canadian Alliance, South Surrey—White Rock—Langley, BC]

moved for leave to introduce Bill C-292, an act to amend the Criminal Code (selling wildlife).

Madam Speaker, this bill is an attempt to make the killing or capturing of wildlife and wildlife parts an offence under the Criminal Code of Canada.

I want to make it clear that the bill would not apply to acts carried out with a licence, permit or exemption order. The bill is not meant to replace provincial wildlife laws but rather to complement them.

I see the bill as dealing only with the most serious offences in the same manner that the criminal code is used for the most serious driving offences. It has become apparent that provincial laws are not a sufficient deterrent to deal with the multimillion dollar illegal trade in animal parts.

The bill would give provincial wildlife authorities and crown counsel the option to proceed by way of provincial wildlife legislation or the new section of the criminal code. Anyone who is convicted of an offence under this section would be guilty of an indictable offence and subject to a maximum two year sentence for a first offence and three years of incarceration for a subsequent offence. If the animal in question is a threatened or endangered species, the maximum sentence is four years for a first offence and eight years for subsequent offences.

The legislation would include such activity as an enterprise crime so it would be subject to the proceeds of crime section of the code.

It is very important that we make every effort to protect endangered species and animals from the misuse and abuse of hunting and fishing as we know it. People are making extremely large amounts of money by poaching and by illegally killing or capturing species that are sometimes endangered. We need to do more to see that it stops.

(Motions deemed adopted, bill read the first time and printed)