Bill C-280 (Historical)

An Act to amend the Criminal Code (selling wildlife)

Criminal Code

[The Speaker]

The House will now proceed to the taking of the deferred recorded division on the motion at second reading stage of Bill C-280 under private members' business.

(The House divided on the motion, which was negatived on the following division:)

[The Acting Speaker (Ms. Bakopanos)]

Pursuant to order made earlier today, all questions necessary to dispose of the second reading stage of Bill C-280 are deemed put and a recorded division deemed demanded and deferred until Wednesday, April 2 at 3 p.m.

It being 6:48 p.m., the House stands adjourned until tomorrow at 2 p.m. pursuant to Standing Order 24(1).

(The House adjourned at 6:48 p.m.)

Business of the House

[Gerry Ritz, Canadian Alliance, Battlefords—Lloydminster, SK]

Mr. Speaker, there have been consultations among the parties and I believe if you seek it you would find unanimous consent for the following:

That following the conclusion of the debate on Bill C-280 all questions necessary to dispose of the second reading stage of the bill be deemed put, a recorded division demanded and deferred until 3 p.m. Wednesday, April 2, 2003.

[The Deputy Speaker]

I wish to inform the House that, under the provisions of Standing Order 30, I am designating Tuesday, April 1, 2003 as the day for the consideration of private members' Bill C-280 standing in the name of the hon. member for South Surrey—White Rock—Langley, and Thursday, April 3, 2003 as the day for the consideration of private members' Bill C-235 standing in the name of the hon. member for Lac-Saint-Louis.

These additional private members' business hours will take place from 6:30 p.m. to 7:30 p.m. after which the House will proceed to adjournment proceedings pursuant to Standing Order 38.

[Howard Hilstrom, Canadian Alliance, Selkirk—Interlake, MB]

Mr. Speaker, there have been consultations between the parties and I believe you would find unanimous consent for the following motion. I move:

That, at the conclusion of debate on Bill C-280 all questions necessary to dispose of the second reading stage of the bill be deemed put, a recorded division requested and deferred until the end of government orders on Wednesday, March 26, 2003.

Criminal Code

[Rodger Cuzner, Liberal, Parliamentary Secretary to the Prime Minister]

Mr. Speaker, it is a pleasure to speak to this private member's bill today. The government side of the House understands and respects what is at issue here and the grave concern there is in this particular area. We do have a problem, however, where it pertains to the legislation specifically and jurisdiction under the Constitution. I will take a couple of minutes to stress two specific points in those terms.

First, the bill would interfere with the provinces' ability to deal with matters within their legislative jurisdiction as they see fit. The federal government does not simply take over matters of provincial jurisdiction if someone is of the view that provincial laws could be tougher. This is exactly the rationale given by the member responsible for the bill. Perhaps this issue should be taken up directly with the provinces whose legislation she considers to be weak.

This is simply not a sufficient reason to impinge on provincial legislative powers under the Constitution. In fact, with this as the stated objective, the bill is likely unconstitutional on that ground alone. If the federal government legislates to strengthen valid provincial law, the federal government is in effect trampling on provincial rights. We cannot do this, otherwise our Criminal Code could end up covering every aspect of provincial law with more serious penalties.

A second and equally important reason as to why the bill's approach is not proper is that it devalues the true criminal nature of offences contained within the Criminal Code. Recent amendments to the Criminal Code on matters such as child pornography, terrorism, organized crime and existing offences such as sexual assault, murder, robbery, break and enter, and so on, would be devalued if we used the Criminal Code to remedy offences of a more regulatory nature.

Anti-poaching offences are clearly of a more regulatory nature. The activities that are prohibited are lawful if there is a licence issued. It is the licence that marks the dividing line between an offence and lawful behaviour. This is the hallmark of regulatory law, not criminal law.

In her last speech, the member for South Surrey--White Rock--Langley said that this was no different from there being driving offences in the Criminal Code. In fact, there is a very important difference. Driving offences in the Criminal Code are based on a standard of criminal fault, whereas provincial driving offences are not. Provincial driving offences are strict liability offences and Criminal Code driving offences require criminal negligence to be shown. The standards are different. The nature of the offence is different.

However what is being proposed in this legislation would be exactly the same offence with the same standard of fault: killing a wild animal without a licence. This provincial offence would simply be duplicated in the code.

In respect to driving offences, dangerous driving puts all of society at risk and so it is prohibited. It is prohibited criminally for the better protection of society as a whole. There is no licence for dangerous driving in any circumstances. The province never permits the kind of activity prohibited by the code.

The killing or taking of wild animals, on the other hand, is legal with the permission of the province with the issuance of a licence. It is only when there is no licence that the behaviour becomes unlawful. The absence of a licence is what sets apart lawful from unlawful. This is fundamentally different from dangerous driving provisions. The provinces do not authorize dangerous driving. It is potentially harmful behaviour and it is behaviour that is without qualification. In other words, the member's comparison is inapt.

The federal government has jurisdiction to legislate in regard to wildlife poaching where the poaching takes place on federal land, where trade in animal parts crosses a provincial boundary or has an international aspect, or where the subject matter is the preservation of an endangered species. In this regard, the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, the Canada Wildlife Act, the Species at Risk Act and the Migratory Birds Convention Act are all operative pieces of federal legislation aimed at protecting wildlife in various ways.

The federal government has not neglected its responsibilities. There are existing comprehensive laws to protect wildlife. In any case, if the member from South Surrey does not think these statutes are adequate, then her bill should have sought to amend these statutes.

There is no compelling reason offered for why matters covered by provincial laws and a myriad of specialized federal laws should now be included in yet another statute. The approach in Bill C-280 would create an even more complicated and fragmented regime of anti-poaching laws.

The member also mentioned that the bill would not encroach on provincial jurisdiction because it would not force the provinces to use the code. This is not a determining factor for whether or not a bill would be unconstitutional. It is not the preservation of provincial prosecutorial choice that is important. We must look to the constitutional basis for the proposed measures.

Is the member suggesting that this is valid criminal law? This is hard to sustain given that the very same matters are legislated by the federal government in non-criminal statutes and regulated by the provinces under a power that clearly is not criminal law.

I do not think the federal government should be in the habit of judging the adequacy of every provincial statute and then legislating improvements where it sees fit. This risks overstepping constitutional boundaries. If provincial legislation prescribes inadequate penalties for a particular kind of behaviour, then provinces should be encouraged to improve their laws. The government believes in working with provincial counterparts to solve problems that affect Canadian society. It does not believe in taking over unilaterally.

We cannot use the Criminal Code to remedy every deficiency in provincial law. We cannot simply duplicate every provincial offence in the Criminal Code and jack up the penalty. The bill essentially says that provincial wildlife poaching offences would now be criminal offences. This creates a dangerous precedent. It essentially declares the proposition that every provincial offence could be made a federal offence under the Criminal Code. In the absence of some link to a head of federal legislative power under the Constitution, this is unacceptable.

In addition, the bill is flawed in its approach to criminal law. It is inconsistent with existing criminal law in terms of procedure and in terms of penalties. The penalties provided are three, four and eight year maximum terms, depending upon the circumstances. These are unknown penalties under the Criminal Code. The penalty regime in the code is built on two, five, ten and fourteen year terms. There is no reason to create an entirely new grade of sentences.

Also, offences in Bill C-280 would be straight, indictable offences. This is grossly inconsistent with most criminal offences. Even offences like sexual assault are dual procedure, allowing the Crown to proceed summarily with simpler procedures where the circumstances suggest it is appropriate.

While we applaud the spirit behind the bill, the government cannot support it because it goes beyond achieving its objective in an inefficient and inappropriate way. There is a regime of laws in place that deals almost precisely with the same subject matter. There is no clear evidence that federal law in this area is inadequate. If provincial law is inadequate, then provincial law should be improved. There simply is no reason to duplicate existing offences in the Criminal Code, which is normally reserved for the conduct that attracts society's most harsh condemnation.

[Alan Tonks, Liberal, Parliamentary Secretary to the Minister of the Environment]

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.

[Alexa McDonough, NDP, Halifax, NS]

Mr. Speaker, I am pleased to have an opportunity to briefly participate in the debate on Bill C-280, a private member's bill addressing concerns about the selling, killing, capturing and possessing of wildlife, especially endangered species.

My colleague from Sackville—Musquodoboit Valley—Eastern Shore would surely have wanted to participate in the debate, however, he is in Halifax representing all the Nova Scotia members at the funeral of a beloved Nova Scotia leader, Dr. Ruth Johnson. She was committed to her community, her church, and most of all to her beloved Africville. She has inspired literally generations of Nova Scotians, both in the Afro-Nova Scotian community and beyond. The member is sorry for not being here this afternoon. Knowing that he is there expressing the condolences of myself and my party I am happy to speak in his stead in this debate.

I wish to congratulate the member for South Surrey—White Rock—Langley on bringing this private member's bill forward again. I know she had done so previously but it expired on the Order Paper. She has demonstrated that she has a real concern about unacceptable practices that are too apparent, not just in Canada, but in other parts of the world as well regarding the handling of wildlife organs, wildlife parts and so on. She has taken it upon herself to bring this issue out of the shadows and into the light of day, and that this is a concern that must be taken seriously.

There are many citizens who are concerned about this. The purpose of this private member's bill is to place this issue higher on the public agenda and demand the kind of action that is called for from governments.

I have noted in the previous debate and again in debate this afternoon that there have been concerns raised about whether the manner in which the member proposes to address the problem is the appropriate one, acknowledging that jurisdictionally this is a matter that belongs primarily at the provincial and territorial level. I think there is no question about that.

I know the member herself, in responding to some of those questions, has indicated in the past that it is not her intention in any way to crowd the jurisdiction of provinces and territories, or in some way displace them regarding the handling of wildlife. Rather, the intent would be to strengthen at the federal level, in the most extreme cases the Criminal Code, provisions that might in fact back up the regulatory measures and existing laws at the provincial level.

At the end of the day, it is not clear to me whether the justice ministry, for example, would be prepared to see this as an appropriate way to go. The member is to be commended for bringing the concern forward once again to the House of Commons.

There are some member, and I am not alone in this, who represent urban ridings. Those of us that represent urban ridings are not inclined to get involved in this kind of debate because there are not great numbers of wildlife, endangered species or otherwise, that may be at risk from the poaching and preying on our wildlife that is contemplated by the legislation.

I have the privilege of representing the city of Halifax. Although Halifax is very much an urban riding, because of the foresight of our pioneers in Halifax about the importance of public space and wilderness space, we happen to be blessed with wonderful Point Pleasant Park at one end of the city. On the north end of the peninsula of Halifax there is Seaview Park and on the outskirts of the mainland of the city of Halifax there is a great deal of green space that aims to achieve the same objectives set out by the member: to improve habitat, and protect and enhance wildlife in our constituencies.

Am I aware whether there is poaching for this purpose happening in my riding? Frankly, I am not. I have not heard from constituents about it. However, I know that whether this is happening in my backyard or not, there is a proud tradition in Halifax, and throughout Nova Scotia, of citizen-based initiatives, community-based initiatives and non-governmental organizations that have shown a lot of leadership around issues of natural habitat, and have focused on the preservation and enhancement of wildlife and so on. The member must be commended for addressing this concern in the bill that is before us.

I am not aware whether this member has consulted directly with aboriginal leaders and aboriginal Canadians throughout her own province on this issue. There is no group of Canadians which has more expertise and more demonstrated commitment to the responsible use of our wildlife and responsible management of our habitat than first nations and other aboriginal Canadians. All too often that expertise is not consulted.

We do not recognize often enough the available resources of aboriginal Canadians, particularly when they have had so little support from the government around the kind of sustainable practices that would help them lift their own communities out of poverty. They are not brought in often enough as the experts and advisers that could give the best possible advice to the Government of Canada and to any one of the 301 members who share concerns about these issues.

In closing, it is important for us to be addressing this issue. I will listen with interest to the debate because, while I support the spirit of the bill, I am not entirely persuaded that the bill that is now before the House is one that will be truly effective in the manner that the member would wish.

I listened with interest to the comments from the member for Ottawa Centre. He too indicated that he shared the spirit in which the bill was introduced. However, speaking as a private member, and I know he did not pretend to be speaking on behalf of the Government of Canada, he showed a certain amount of chutzpah by saying he was not sure that it would be the most efficient way of dealing with this problem.

After the embarrassment of his own government's handling of the endangered species legislation and the manner in which the national firearms registration has been handled, it is good to know that there are some members on the government side who are genuinely focused on the question of the most effective and efficient manner of dealing with issues that concern Canadians.

[Bernard Bigras, Bloc, Rosemont—Petite-Patrie, QC]

That is correct. It was under Robert Bourassa's Liberal government that Quebec passed that bill.

What did the federal government do 13 years later? It passed Bill C-5. Some of my colleagues here in the House voted for it. I will not name their ridings, but some of them were once ministers in the Quebec government. They agreed to a federal statute overlapping and duplicating legislation passed in Quebec in 1990.

Today we do not need a bill which, through the Criminal Code, will give more power to the federal government to regulate the sale of wildlife. Why? Not because we do not want the sale of wildlife to be regulated, but because Quebec, in some respects, has been proactive and already has distinctive legislation in this regard.

I can understand that some provinces have not been as proactive in this matter. But when a province has been proactive, it must be understood that the Criminal Code is a powerful tool, a powerful instrument for imposing measures on some provinces, among other things, for the sale of wildlife.

Depending on the infraction, under sections 165, 167 and 172 of An Act respecting the conservation and development of wildlife, there can be fines ranging from $500 to $16,400, prison terms of up to one year, and administrative penalties that could result in permits being suspended for up to six years.

Clearly, with the Act respecting the conservation and development of wildlife, Quebec is not simply banning the sale of wildlife, and that is made clear in section 69 that I just quoted. The act also provides for penalties, fines, prison terms and administrative penalities, to ensure that for the sale of wildlife, this is not just some obscure principle, but a principle that is strictly enforced when certain individuals decide to break the law.

In Quebec, there is a law with this objective. We fear that the federal government is interfering—as if it were not interfering enough—in an area of provincial jurisdiction. This is not necessary. This should be left up to the provinces.

Essentially, the bill's purpose is inconsistent with what the federal government has always said; the government opposite has always preached full partnership with the provinces in terms of enforcing environmental legislation, be it the Environmental Protection Act, the Species at Risk Act, or the Canadian Environmental Assessment Act.

When it comes to practising what you preach, however, the opposite happens. Take the example of the sub-agreement on environmental assessment or even the Canada-wide Accord on Environmental Harmonization. There are partnership principles, but why did Quebec not sign this accord?

When we consider legislation from the House, we realize that Bill C-280 contains essentially the same things as Bill C-5. This is unacceptable. The principles in the agreements must be reflected within bills from the House of Commons.

When we see that Bill C-280 on the sale of wildlife seeks to duplicate, to make it a crime, under the Criminal Code, to sell wildlife, when provisions already exist at the provincial level, we are led to question the wishes, not only of the federal government, but of this Parliament, since this motion and this bill were introduced by the opposition.

As we can see, it is not just the federal government proposing provisions which would duplicate existing legislation. On this side of the House, there are also members and political parties that share this vision of Canadian nation building.

If Quebec had not done its homework in this regard, I could almost understand the desire of the federal government to step in. Quebec was the first to adopt legislation on endangered species, and that was in 1990. It has taken the federal government an additional 13 years to adopt similar legislation. The difference is also noticeable when we look at our legislation on environmental assessment.

I will conclude by saying that we cannot accept a bill which, through the Criminal Code, would give more power to the federal government, when the work is already being done in Quebec and things work fine. We are not interested in setting aside the existing system.

[Bernard Bigras, Bloc, Rosemont—Petite-Patrie, QC]

Mr. Speaker, it is with great pleasure that I take part today in this debate on Bill C-280 put forward by my hon. colleague from South Surrey—White Rock—Langley. The purpose of this bill is to criminalize the selling of wildlife.

Every effort must be made to prevent this activity, which is unacceptable, both environmentally and socially. I find however that the Criminal Code is too often used to raise the issue of criminalization.

What is the consequence of using the Criminal Code to penalize certain activities, whether environmental or other? It gives the federal government both an opportunity and the legislative means to step into areas of provincial jurisdiction. As my hon. Liberal colleague said earlier, and I agree with him, legislation and regulations exist in the provinces to effectively manage this activity.

That is the problem, because the bill before us is an infringement upon provincial jurisdictions according to the distribution of legislative jurisdictions under the Constitution Act, 1867.

I believe it is important to remember that some provinces, including Quebec, already have a special regime to control the sale of animals. In Quebec, I will quote among others, the Act respecting the Conservation and Development of Wildlife. Section 69 says:

No person may sell or purchase an animal the sale of which is prohibited by regulation. Authorized sale. However, the government may, by regulation, authorize the sale of an animal referred to in the first paragraph according to such norms and conditions as the government may determine.

“No person may sell or purchase an animal the sale of which is prohibited by regulation.” That is what section 69 of the Quebec Act respecting the Conservation of Wildlife says.

The danger is that through this private member's bill the federal government will, under the Criminal Code, intrude into areas of provincial jurisdiction while some provinces, including Quebec, have already been proactive in this regard. Quebec has also been proactive through its legislation to protect species at risk.

Back in 1990, the Quebec National Assembly passed a bill to protect species at risk on its territory.

[Mac Harb, Liberal, Ottawa Centre, ON]

Mr. Speaker, I too would like to acknowledge the hard work of the member for South Surrey—White Rock—Langley and thank her for bringing this very important issue to the attention of Parliament.

While we are not here to debate the importance of dealing with poaching, the issue is whether the bill in its present form is the most appropriate mechanism for addressing poaching. In my view it is not. The bill takes existing offences and essentially duplicates them in the Criminal Code.

Bill C-280 does not have the appearance and elements of a true criminal law scheme. The scheme in Bill C-280 proposes what is essentially a regulatory scheme and drops it into the Criminal Code. The Criminal Code is not an appropriate statute for this kind of law. This is especially so where there is a range of existing federal and provincial laws that directly and indirectly regulate the same subject matter.

Even in the absence of all these other relevant inapplicable laws, the measures in the bill would be best dealt with by regulation rather than by amending the Criminal Code.

The bill expressly provides that the offence provisions in respect to wildlife that is not a threatened or endangered species do not apply to persons who act in accordance with a licence issued pursuant to a federal or provincial statute or regulation. This is usually associated with regulations. The essence is that if we have authorization we can do something but we are in violation of the law if we do it without authorization. This is often what regulations look like, but the Criminal Code does not work the same way. The application of a criminal offence provision does not normally rely upon whether a licence to conduct a prohibited activity has been issued by federal or provincial authority.

Another feature of the Criminal Code offences is that they almost always apply to everyone. It is extremely rare for the Criminal Code to specify exemptions for criminal liability in respect of particular offences. The exemptions set out in sections 204 to 207 inclusive of the Criminal Code relating to the gaming offences and part of the code are notable exceptions to the usual rules against exemptions. We can see the contradiction between the two. On one hand we want to deal with one specific problem, but by doing it through the code, we are brushing everybody with the same brush and making that exemption become quite problematic.

Nonetheless, it is extremely rare to specify exemptions that depend upon the exercise of discretion by a member of the executive branch of government. However, subclause 447.8 of Bill C-280 would grant discretion to the Minister of the Environment to issue an order exempting “any person or class of persons” from “application of all or any” of the offence provisions in respect to threatened or endangered species. In my view this feature is highly unusual and highly unheard of.

It is also rare in a Criminal Code context to have a member of the executive confer with an advisory body in order to determine whether the subject matter of the offence, in this case wildlife, falls within a particular category. I note that subclause 447.7(1) and (2) respectively would give the Minister of the Environment the discretion to determine whether a species of wildlife is an--

[Deepak Obhrai, Canadian Alliance, Calgary East, AB]

Mr. Speaker, it is a pleasure for me to rise and speak to Bill C-280, an act to amend the Criminal Code (selling wildlife), put forward by my colleague from South Surrey—White Rock—Langley. This is my second time speaking on the bill because I view the bill to be of the highest importance and I would like to commend my colleague for bringing forward this private member's initiative to address this issue.

Her major concern has been the selling of wildlife, especially bears, which impacts Canada in regard to the parts of bears that are illegally sold all over the world. I was reading a publication by an investigative network of the Humane Society of the United States and the Humane Society International about the global underground trade in bear parts. It gives a pretty terrible picture of what is happening in Canada and around the world in the illegal trade of bear parts, which are traded for medicinal purposes.

The headline of this document is “Forest to Pharmacy: Canada's Underground Trade in Bear Parts”. It outlines in detail the laws of other countries to stem this terrible tragedy that takes place in our forests and with wildlife across the world. Based on this book, this trade is not specifically restricted only to North America. It takes place all over the world, but because we have a large bear population this has a major impact in Canada as well. As recently as about a week ago, a documentary on television indicated that there is poaching and killing of grizzly bears in Alberta. Forestry roads allow access to the bears and so also give access to those who are illegally trading in bear parts.

In my last speech, I talked about having grown up in a country that has wildlife as one of its natural resources and where poaching plays a major role. Around the world there have been attempts to stop this trade when animals become endangered. We have seen some successful programs, especially in Africa in dealing with the elephants, and with other animals, for example, the tigers in Asia.

Now we have to look at this and see what is happening with the bears and this illegal trading. In my point of view, we need to take two levels of approach. One level of approach is what my colleague is doing in trying to strengthen the laws so that our conservation officers have the tools and the mechanism to fight this illegal trading in bear parts. It is commendable that my colleague has brought forward the bill and it is to be hoped that the government sees why my colleague brought it forward, because there is a heavy, heavy concern.

I think that Canadians in general do not seem to recognize or to know that there is a vast illegal trade in bear parts going on around the world. If they did, they would rise up in anger. They would demand that the government take some action. That is why this has been brought in front of the House of Commons to be debated: so that government can take some action on the legislative front to give our officers the tools they need to bring to justice those who are breaking these rules and engaging in this horrible crime where bears are killed, killed only for their gall bladders and for their paws, because there is a perception that it gives some kind of vitality to life.

For our part, we need to work hard to ensure that laws are there. On the other side, too, we need to get on to the educational front. I am glad that the humane society and the animal welfare people are bringing this issue to Canadians.

Also, the other aspect is for the government to work more closely with other governments, and in this particular instance, the governments in Asia where these parts are in demand. Asia has a market for them, and as other previous experiences in wildlife management have shown, if there is a market for these parts it is difficult to stop the poaching and the killing. The only successful programs are those which have gone to the root cause, the market. In this case, we have to do the same thing. I think we need to talk with governments in countries where markets are thriving. We need to go on an educational spree in that part of the world and we need to let them know that they are not taking the right approach, that this is killing wildlife. We need to ask them what benefits they are deriving out of this.

A two-way approach needs to be worked out. If we go on an educational spree, people will start to look at this issue and the market will start to decline. If the market declines and it is no longer profitable to kill a bear for its parts, for example, then we will have done a tremendous justice.

That is not to set aside the fact that we are trying to bring in a bill in this Parliament dealing with this issue. I am happy to note that the bill is a votable bill, so that all members of Parliament who look at this will recognize why this legislative assembly needs to give tools to our officers to stop this trade. Again, as I say, it does not mean that at the end of the day we do not try to stop the market. With the combination of these two approaches, the bill and the education, we will have done justice to our future generations by protecting our wildlife species.

With that, I again congratulate my colleague from South Surrey--White Rock--Langley for bringing forward the bill. I hope that when it comes to the House for a vote it will receive the unanimous approval of all members of Parliament and we will act on this.

Business of the House

[Bernard Bigras, Bloc, Rosemont—Petite-Patrie, QC]

Mr. Speaker, after consultation among all parties in the House, I believe you would find unanimous consent for the following motion:

That, should debate on Bill C-280 be concluded today, all questions deemed necessary to dispose of second reading of the bill be deemed put and a recorded division deemed requested and deferred until Tuesday, February 25, 2003, at the expiry of the time provided for Government Orders.

Criminal Code

[Paddy Torsney, Liberal, Burlington, ON]

Mr. Speaker, I have a couple of things to say with regard to the hon. member's bill. I also want to clarify a couple of things that were said by one of her colleagues, the member for Saanich--Gulf Islands.

It is important for all Canadians to realize that it is not the government that chooses what is votable. It is actually a committee of this Parliament that chooses what is and is not votable.

While he exalted the conservation activities in other countries, which are very deserving of great credit, I think he forgot about some of the important conservation activities taking place here in Canada through organizations like Ducks Unlimited where there is some public and private partnership.

However I was encouraged by some of the things that he mentioned on the endangered species and cruelty to animal legislation that is working its way through the House and through the Senate. I encourage him, given his support, to encourage the senators to pass that bill because there are important issues to be addressed there.

With regard to 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 that is threatened or endangered, is a laudable one, but the question is, how do we best do that.

The member opposite has raised some very important issues. This should be something discussed through one of the joint ministers' meetings at the federal and provincial level because some of the issues are provincial and some of the issues are federal. Let us figure out what the best tools are. She has raised an issue of great importance to Canadians and to the future of our wildlife.

The member for Northumberland has already identified a number of difficulties with making this a Criminal Code provision, and that perhaps regulatory legislation is more appropriate. There are a number of federal statutes that try to address some of the conduct that is being sought in Bill C-280, such as the Canada Wildlife Act, the Migratory Birds Convention, the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, which the member herself recognized, and the species at risk act, Bill C-5, which is currently before the Senate. Some of the things that are being covered will be addressed through that.

The member for Northumberland talked about the difference between criminal law and regulatory provisions. The Supreme Court of Canada has expressly recognized that:

--the common law has long acknowledged a distinction between truly criminal conduct and conduct, otherwise lawful, which is prohibited in the public interest.

There could be some challenges here.

According to Justice Cory:

Regulatory legislation involves a shift of emphasis from the protection of individual interests and deterrence and punishment of acts involving moral fault, to the protection of public and societal interests. While criminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care.

I think this is where the member is trying to punish acts and also to prevent future acts, and we need to get the right measures in place.

The member for Northumberland has already identified that there is a problem because of the exceptions that would be covered in this act and that the criminal law does not really have exemptions. It is extremely rare for the Criminal Code to specify exemptions for criminal liability in respect of particular offences.

The other challenge, which I am not sure he had a chance to discuss, was the issue of relative proportionality in terms of sentencing. Clearly, there is a need to make sure that sentences are proportionate with the seriousness of other offences that may carry the same or lesser penalties. It is not an exact science but I would argue that it has evolved over time as Canadians have placed greater emphasis or expressed their desire to stop certain offences or their abhorrence of certain offences. We have increased penalties in certain areas. We have sent a strong message to those who would choose to conduct them. However it would be disproportionate that a second offence under Bill C-280, in relation to a threatened or endangered species, would carry a maximum penalty of eight years when the maximum penalty right now for assault on indictment is five years.

Currently the maximum penalty for cruelty to animals is six months and that is why Bill C-10B, which is currently before the Senate, would raise that maximum to five years. Cruelty to animals would have a five year maximum sentence and that is for someone who is torturing an animal, which I think all of us in the House and in Canadian society would agree is absolutely abhorrent. We need to see how that would relate to what is being proposed in the member's bill, which is a maximum of eight years.

I mentioned that there are a variety of statutes that regulate the kind of behaviour that is dealt with in Bill C-280. I think the member has raised a very important issue. It is something we need to discuss at the federal-provincial level to see if the provinces should be doing more in terms of their regulatory authority. We should work through and develop the issue a little more before necessarily making a change to the Criminal Code.

I definitely support the protection of animals. The member's colleague mentioned organized crime rings. We need to make sure that those laws are in place to stop that kind of activity and to punish it very severely should it occur. I think there are a number of ways we could beef up things through the current bills and acts that are in place. We do not want to inadvertently create even more confusion out there so that people do not do their utmost to protect our species and wildlife in Canada.

At this point I will not be supporting the bill but I commend the member opposite on her excellent work.

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

Mr. Speaker, I am pleased to have this opportunity today to speak to the provisions of Bill C-280, an act to amend the Criminal Code regarding the selling of wildlife.

If passed, the bill would create a new part XI.1 in the Criminal Code 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 would not alter the application of any existing aboriginal or treaty rights.

The offences proposed in Bill C-280 would address three activities: the selling of wildlife or wildlife parts, the killing or capturing of wildlife for the purpose of selling wildlife or wildlife parts and, finally, possessing wildlife for the purpose of selling wildlife or wildlife parts.

The government does not support the bill for a number of reasons. The overarching reason is that the Criminal Code is not the appropriate statute to deal with the subject matter addressed by the bill. The measures in the bill are best addressed as regulatory law and not as criminal law.

Provincial governments generally have constitutional authority to regulate the conservation and sale of wildlife and wildlife parts. Provincial governments do in fact regulate such activities. There are important division of powers questions in relation to the measures in the bill which the member did allude to.

In view of the constitutional competence of the provincial governments to regulate the use of wildlife on provincial lands, I would urge those jurisdictions which are experiencing problems with the sale of wildlife or wildlife parts to work with their respective governments to address the problem in a regulatory context.

To the extent that the federal government does have the power to legislate to protect wildlife, it does so by the use of its regulatory power, not the Criminal Code. In fact, there are several federal statutes that cover the kind of conduct this bill seeks to address, including the Canada Wildlife Act, the Migratory Birds Convention Act, the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, and the species at risk bill, Bill C-5, currently before the Senate.

The federal government has a series of regulatory regimes in place designed to protect and conserve wildlife, and to punish related misconduct. These measures are not in the Criminal Code. The reason for this is because the government understands and appreciates that these matters are most appropriately dealt with in a dedicated regulatory regime.

The measures in the bill are best dealt with as regulatory law. They do not belong in the Criminal Code. I do not wish by these comments to suggest that the objectives of the bill lack merit. 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 an endangered species, is a laudable one. However, the question is whether or not this particular bill is the best way to achieve this goal. In the government's view, it is not.

Let me outline some features of the bill that are traditionally associated with the creation of offences in the regulatory context, rather than within Criminal Code offences.

One important feature of the bill is that it does not apply equally to all Canadians. It would expressly exempt 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. Indeed, the criminal law is a law of general application that normally applies to all Canadians in the same way.

Bill C-280 would permit 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”. Giving a power to the Minister of the Environment to exempt people from the law again signals a regulatory law and not a criminal law.

There is another problem with this provision. The criterion for an exemption is so subjective and general that it would not provide any real limits on the behaviour to be exempted. This provision would face serious constitutional attack on that basis.

Another feature of the bill, which is not normally found in the Criminal Code, is that the Minister of the Environment would given the power to designate by regulation an animal as “wildlife” for the purposes of the provisions.

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 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 ofthe law.

I think the interests of justice are served by a consistent and coordinated approach to subject areas within the legislative competence of the federal government. I have already referred to the numerous federal statutes that pertain to wildlife and wildlife protection. Some of the provisions of Bill C-280 overlap with those in the current wildlife legislation and also with the provisions of Bill C-5, the species at risk bill, currently before the Senate.

Bill C-280 would ignore this already existing body of laws or contemplated laws. Bill C-280 would create offences that in large part overlap the offences provided in these other federal statutes. Instead of seeking to amend these other statutes which deal directly with the matters at hand and are administered by the Minister of the Environment, who figures so prominently in Bill C-280, the bill before us seeks to create a whole new and independent regime that would have to be reconciled with the regulation that already exists.

This would add confusion to the regime that already exists. The offences proposed in Bill C-280 are inconsistent with similar offences in other federal statutes in that they are indictable offences only. This is inconsistent with provisions found in the Canada Wildlife Act, the Migratory Birds Convention Act, the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, and Bill C-5. Offences in these other statutes are dual procedure offences. There is no logical reason for this inconsistency.

The government cannot support the bill because, quite simply, it seeks to amend the wrong piece of legislation. The Criminal Code is not the right vehicle for prohibiting the sale of wildlife.

Even if one were to accept that such measures fit appropriately in the Criminal Code, which they clearly do not, the provisions of the bill are inconsistent in a variety of ways with the Criminal Code and normal criminal law procedures and penalties.

There is no precedent in the Criminal Code for this kind of penalty regime. The sentencing provisions in the Criminal Code follow a pattern for maximum consistency and rationality. Offences in the code generally have maximum penalties of 2, 5, 10, 14 years and life imprisonment. There is no precedent for the way in which this particular bill has been structured with respect to its sentencing.

In conclusion, the provisions of Bill C-280 cannot be supported for several reasons. They are not matters for the Criminal Code, they are inconsistent with other provisions of the Criminal Code, and they overlap and potentially conflict with other federal legislation that already governs this area.