Bill S-203 (Historical)

Ending the Captivity of Whales and Dolphins Act

An Act to amend the Criminal Code and other Acts (ending the captivity of whales and dolphins)

This enactment amends the Criminal Code to create offences respecting cetaceans in captivity. It also amends the Fisheries Act to prohibit the taking of a cetacean into captivity and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act to require a permit for the import of a cetacean into Canada and the export of a cetacean from Canada.

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

Mr. Chair, essentially, on CPC-2, we're looking to broaden the definition of the research to include conservation work. Ex situ conservation literally means off-site conservation. It is a process of protecting an endangered species outside its natural habitat by, for example, removing part of the population from a threatened habitat and placing it in a new location, which may be a wild area or within the care of humans.

With that, I propose that Bill S-203, in clause 2, be amended, by replacing line 14 on page 2 with the following:

Conducting scientific research or participating in an ex situ conservation program pursuant to a licence is-

(Amendment negatived)

[Colin Fraser]

The official from the department indicated that Bill S-203 would not affect pregnant cetaceans currently in captivity; that is what I'm saying.

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

With regard to Mr. Fraser's comments, I will say that this paragraph deals with the exemptions to the law. That is why we want to be specific because there was some ambiguity with this Bill S-203 around cetaceans that are born after this bill comes into force. This just offers, as Ms. Klineberg says, some clarity around that.

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

This amendment creates an additional exemption to Bill S-203 that is consistent with the subclause 3(a) exception, but recognizes the birth of a new cetacean to a captive cetacean that was lawfully pregnant prior to the passage of Bill S-203. I know that legal officials told us that they didn't think there would be an issue, but no one could actually say with any certainty that this would not happen. So, the amended clause 2 would read, after line 12 on page 2:

(d) comes to own, have the custody of or control a cetacean that is born to a cetacean that is kept in captivity and pregnant on the day on which this subsection comes into force.

[The Chair, Mr. Ken McDonald (Avalon, Lib.)]

Good afternoon, everyone.

Welcome to your fisheries and oceans committee meeting this afternoon, pursuant to the standing order of reference of Friday, February 1, 2019, Bill S-203, an act to amend the Criminal Code and other acts, in regard to ending the captivity of whales and dolphins.

We have some witnesses here today, in case there are any questions as we go through.

From DFO, we have Mr. Burns, who is the director general of fisheries resource management. We also have, from the Department of the Environment, Ms. Caceres, who is the manager of international biodiversity for the Canadian wildlife service. From the Department of Justice, we have Ms. Klineberg, who is senior counsel with the criminal law policy section.

Before I start, I have a short statement to read, based on some things that happened over the past few days. I want to let all members around this table know that I was advised, as chair, that there was an article published yesterday morning about this bill. Within this article there were details that address the amendments package that was distributed to members of this committee in confidence.

I would just remind all members that any confidential documents that are circulated and the information that is within them are to remain confidential until they are moved or made public by this committee. They are not to be seen by any journalist, member of the public or other parliamentarian who is not entitled to have access to them. I want this simply to serve as a reminder to all members of this committee.

We'll start clause-by-clause consideration.

Pursuant to Standing Order 75(1), consideration of clause 1, the short title, is postponed.

(On clause 2)

On amendment CPC-0.1, Mr. Doherty.

Fisheries and Oceans

[The Speaker, Liberal, Geoff Regan]

It being 3:55 p.m., pursuant to an order made on Monday, March 18, 2019, the House will now proceed to the taking of the deferred recorded division on the motion to concur in the instruction to the Standing Committee on Fisheries and Oceans concerning the consideration of Bill S-203.

Call in the members.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, any effort to go travelling, pursuing Bill S-203, is a transparent attempt to kill the bill.

We went through years of hearings in the Senate. The bill is now before the committee. We hope for its speedy passage so that Canadians can celebrate the House coming together to do something for animal welfare by ensuring that these sentient creatures, these cetaceans, are no longer tortured by being kept in captivity. Therefore, the request for permission to travel across the country is again a transparent attempt.

[Dr. Martin Haulena, Chief Veterinarian, Ocean Wise]

Thank you.

Good evening, everyone. Thank you for inviting me. I appreciate the opportunity to address Bill S-203.

I'm Dr. Martin Haulena. I'm head veterinarian at the Vancouver Aquarium, as well as at our national marine mammal rescue centre, both part of Ocean Wise. Ours is the only rescue centre in Canada able to rescue, rehabilitate and release marine mammals, including cetaceans, the taxonomic group of animals that includes all whales, dolphins and porpoises.

I'd like to use a recent example of our work to explain my concerns about Bill S-203 in its current form, and its potential impact on our efforts to save endangered whales in Canada. Last summer, I spent the better part of the month in the San Juan Islands, located between Vancouver Island and Washington state, taking part in a rescue effort for a small killer whale known as Scarlet, or J50, according to the naming system for killer whales, off the west coast.

J50 was four years old, a member of the critically endangered southern resident killer whale population. Based on her emaciated body condition, she was very sick. Veterinary intervention with free-ranging animals isn't something we ever take lightly, but time is running out for this group of whales. There are only 75 of them left, as has been mentioned a few times. Based on what we know about them and their environment, we understand that environmental threats, including pollution, underwater noise and lack of prey, are causing their decline. The Department of Fisheries and Oceans is also taking actions to address those issues, but for this population of whales, the time needed to reverse the impact of these threats—

[Andrew Burns, Legal Counsel, Marineland of Canada Inc.]

Good evening. On behalf of Marineland I will focus on three issues of concern, for the committee's consideration.

In its present form, this bill violates the Charter of Rights and is unconstitutional.

First, Bill S-203 does not provide for a proclamation date. It becomes law immediately after royal assent, and many otherwise lawful activities will immediately become criminal offences.

Specifically, proposed paragraph 445.2(2)(a) makes it a criminal offence to own, have the custody of or control a cetacean that is kept in captivity. The bill does include an exception in relation to cetaceans that are kept in captivity at the coming into force of proposed paragraph 445.2(2)(a) and that remain continuously in captivity thereafter. The offence provision therefore does not apply to whales presently alive at Marineland.

The bill goes on to create another exception, permitting the holding of cetaceans, subject to the issuance of a licence issued by the province in which the cetaceans are held. The bill does not, however, provide any period of time for a licensing regime to be implemented prior to the Criminal Code offence being created upon royal assent.

These provisions of the bill give rise to a serious practical problem arising solely from the natural reproductive cycle of the beluga whales living at Marineland. This issue was clearly and directly raised in my testimony to the Senate committee considering this bill on May 16, 2017, when I stated:

But if a beluga whale is pregnant prior to the date of the bill coming into effect and gives birth after the bill comes into effect, the birth of that beluga whale triggers the commission of a criminal offence.

“Birth” is the operative word.

With respect, this is not about whether proposed paragraph 445.2(2)(b), prohibiting breeding prior to the law coming into effect, constitutes a crime after; it is an issue under proposed paragraph 445.2(2)(a) as to when Marineland comes into possession, ownership or control of a new baby beluga whale.

We are not arguing, as is suggested by Senator Moore or the DOJ lawyer, that somehow proposed paragraph 445.2(2)(b), concerning breeding, is relevant. What we are saying is that proposed paragraph 445.2(2)(a) is relevant. Marineland comes into possession, ownership or control of a new baby beluga whale at birth—presumably—after royal assent, assuming the bill is passed into law this spring.

The Supreme Court of Canada and Criminal Code subsection 223(1) address directly and clearly this issue in relation to the birth of human children. Under subsection 223(1), a child becomes a human being within the meaning of the Criminal Code when it has completely proceeded, in a living state, from the body of its mother.

The birth of a beluga whale will be interpreted no differently. To suggest otherwise is to state that beluga fetuses have greater rights under the law than human fetuses. A new baby beluga whale is a new and separate entity on the date of its live birth, not one day before.

It is acknowledged by the DOJ lawyer that this act provides that no new whales will be allowed to be born following royal assent to this bill.

Consequently, when the currently pregnant beluga whales give birth in 2019 and 2020, Marineland and, arguably, all the staff and independent marine mammal veterinarians who aid in the deliveries and care for newborn beluga whales will unavoidably and immediately be committing a criminal offence. This cannot be otherwise avoided by Marineland. The gestation period for whales is approximately 16 months. Whales are already pregnant. Pregnant mothers cannot be moved or disturbed without risking their lives. They certainly cannot be transported to another jurisdiction without killing them.

With respect to the “breeding” provision prohibition under proposed paragraph 445.2(2)(b), the whales are self-organized at Marineland into family groups—more than 50 whales. There are no free pools. Assuming the bill passes, Marineland is being told to tear family groups apart and separate mothers, fathers and children in 24 hours. That is impossible, and no one wants that to happen.

Surely, it was never the intention of the drafters of this bill that Marineland would be rendered totally incapable of complying with the Criminal Code, automatically becoming guilty of Criminal Code offences and left in continuous possession of illegal whales born in 2019 and 2020. It also cannot be suggested that the drafters of this bill intended to create a situation that forces the attempted abortion of baby beluga whales or the euthanasia of pregnant mothers as an alternative to criminal conviction.

We believe a simple, reasonable solution that will have no impact on the purpose or intent of the bill is to amend the bill to provide for a realistic proclamation date. However, if the bill is passed in its present form, it will create a statute which, by its terms, makes compliance impossible and the consequence a criminal conviction. Such a statute violates the principles of natural justice and violates section 7 of the charter. The bill, in its present form, is unconstitutional.

The second issue, which, again, does not impact the stated purpose of the bill, arises as a consequence of the very broad wording of proposed subsection 445.2(4). The issue here is not Marineland's compliance but broad effects on average Canadians. The wording creates a criminal offence for everyone who takes part in a show that is purely for entertainment purposes. This includes swimming with dolphins. While this may not violate the Criminal Code when posted to Facebook by a Canadian who has swum with dolphins on vacation, it will demonstrate the violation of Canadian law and will certainly impact “good character” clauses in employment contracts in the academic sector, the public sector and other settings.

In addition, promoting or receiving money for such shows implicates every major airline in Canada that promotes resorts or swimming with dolphins. Travel agents who book these types of events will be receiving money for doing so, which is expressly prohibited. These offences occur in Canada. At least one major Canadian company owns Atlantis, Paradise Island, which operates under Bahamian law and offers swimming with dolphins. Receiving money from this will be criminal.

This appears to go well beyond the stated purpose of the bill, ending captivity of cetaceans in Canada.

[Clinton Wright, Executive Vice-President and Chief Operating Officer, Aquariums, Ocean Wise]

Thank you, Mr. Chair.

Good evening, honourable members of the committee.

I am Clint Wright, chief operating officer of Ocean Wise, which includes the Vancouver Aquarium.

Thank you for inviting me. I appreciate the opportunity to comment on Bill S-203.

I'd like to acknowledge that we are on the ancestral lands of the Algonquin people.

I don't think that I need to tell you, the members of the Standing Committee on Fisheries and Oceans, that there are many species of cetaceans in trouble in Canada and around the world. When it comes to the state of our oceans, we're racing against time.

When the Vancouver Aquarium appeared before the Senate committee to discuss this legislation in 2017, we talked about our efforts to win that race. We've been at the forefront of conservation-based research in the Pacific, the Arctic and the Atlantic since 1956. Our collective body of work has contributed to the protection and recovery of wild cetacean populations in Canada through input into significant policies, regulations and best practices.

Central to the conversation, as it was then, is our unwavering commitment to animal welfare. It is the reason that I, as a marine biologist, have dedicated my life to studying and safeguarding our vulnerable ecosystems.

In the 62-year history of the Vancouver Aquarium, a lot has been gained and a lot has changed. We lead one of the longest-running killer whale research studies in the world. The expertise we've gained over five decades of working directly with cetaceans has enabled us to be nimble in providing support to Fisheries and Oceans Canada on emergent cetacean rescues.

Having connected more than 45 million people to cetaceans so that they would take steps to protect what they've learned to love, the Vancouver Aquarium made a decision last year to no longer display cetaceans. It has also been nearly 30 years since the last wild-caught cetacean was brought to Vancouver, a practice that no longer exists at accredited facilities in North America.

This brings me back to the topic of Bill S-203. As it is currently worded, the legislation will have unintended negative consequences and prevent us from doing our best for sick, injured and endangered whales, dolphins and porpoises in Canada.

My concerns are threefold.

First, the provincial approval requirement from the lieutenant governor and other provincial bodies adds a layer of complexity in the event of an emergent cetacean rescue, when DFO calls on the Vancouver Aquarium marine mammal rescue centre for support to save a stranded, injured or ill cetacean. Time is of the essence in these scenarios, and often these rescues take place in front of the public. We've learned through experience that added delays are problematic.

The same is true for acquiring provincial approval to conduct research during a rescue as part of the veterinary care and rehabilitation. Again, it adds another layer of complexity, delaying urgent care to a very sick animal.

Second—also on this point—to the best of our knowledge, there is no provincial legislation in B.C., hence a provincial cabinet would not be able to provide authorization or delegate authority. As the federal department that oversees ocean protection and cetacean welfare, our partners at DFO are likely the best ones to speak to the federal permit process.

Third—and perhaps even more troubling in my view—the bill does not adequately provide for the protection and care of endangered species and populations. As in the case of J50 and the southern resident killer whales, which Dr. Haulena will speak to in greater detail, or the belugas in the St. Lawrence estuary, extraordinary measures to save species may soon be needed.

I would like to see the bill amended to include an exception for ex situ conservation programs.

It's impossible to predict what the future will hold, but based on recent history, there is a growing need for this work. I urge this committee to consider amendments to Bill S-203 so that this critical work can continue now and into the future.

Thank you.

[Dr. Laura Graham, Director, WRG Conservation Foundation, As an Individual]

I would like to thank the committee for this opportunity to voice my concerns about Bill S-203, to ban cetaceans in captivity.

Specifically, I want to make sure the committee is well informed on the critical role that scientific research on cetaceans in captivity plays in the advancement of the management and conservation of captive and wild cetacean populations.

My background is in wildlife physiology and captive breeding for endangered species. That is the area on which I will focus. One of the areas that I am an expert in is developing non-invasive hormone techniques to use in wildlife to assess reproduction and welfare. I collaborate with various zoos and aquariums with their captive population to develop and validate these techniques, then we can apply them to the captive population. We can also adapt them for use in wild populations. Think of home pregnancy tests for women, where we just measure the hormone in the urine. In this case, we're collecting urine or feces from the species in a non-invasive way.

I want to point out a couple of examples where this is critical to advancing our knowledge about cetaceous species, including our critically endangered cetaceous species.

Article one, which I have provided you, is an example of these techniques that have been developed in dolphins. These non-invasive hormone techniques, which have been developed for some cetaceous species in aquariums, in collaboration with aquariums, have provided some critical information.

This includes critical information on our own southern resident pods of orca on the west coast that are listed as endangered under the Species at Risk Act. They are the most polluted mammal on the planet and for several years have been declining in numbers, as you all know.

Various measures have been taken to reverse the population decline, including reduced tourist activity based on the unsubstantiated assumption that tourism-associated stress is negatively impacting their recovery. The decline has continued. Everybody's seen the viral picture of the mother carrying her dead calf around for weeks.

A colleague of mine has used our non-invasive hormone techniques that have been developed in captive animals to study this particular population of orca. His study has determined that the female orcas are actually getting pregnant, but they are losing their calves. They are losing the fetus or their newborn to malnutrition. That is not something that you can get just from observational studies.

As far as the tourist boats go, the study has indicated that the stress hormones of this particular population actually are at their lowest during the peak tourism season. This is in article two, which I have provided for you, that was published by Sam Wasser in 2017.

These orcas are getting pregnant, but they are losing their fetus or newborn because of malnutrition. Using the information that came from this study, we are now able to pinpoint the most important threat to the survival of this orca population: the declining salmon stocks. I want to emphasize that we would not have this technique to use on this critically endangered population without having captive orcas to study the hormone patterns for the species.

Another example would be the St. Lawrence beluga. Again, like the orcas, its population is declining for unknown reasons, although various measures have been undertaken to try to attempt to reverse this decline, including reducing tourism activity. It would be possible for us to do a very similar study to what was done with the southern resident pod of the orca; however, we would need to have a captive breeding population of belugas to validate the techniques. This proposed legislation would obviously prevent us from carrying out this research.

I have focused just on two examples, because they're of immediate Canadian concern and that's my research area of expertise.

The previous speaker was also talking about some of the field research, so I want to remind everybody that much of the techniques used for that field research were developed and validated on captive populations under captive conditions.

Indeed, the vast majority of what we know about cetacean biology is based on research in captive populations and is critical for rescuing cetaceans in dire straits. I'm glad the Vancouver Aquarium is going to be here because they can talk about their contribution to the conservation and management of wild cetaceans and how their research has been critical to that. I have provided the open letter from the list of scientists, in defence of the research done by Vancouver Aquarium when they were attacked by the anti-captivity people, and I strongly encourage you to read it.

A great deal has been suggested about the reduced welfare of cetaceans in captivity and there's no doubt some institutions should definitely be closed. However, in modern accredited zoos and aquariums, great strides have been made to maximize the welfare of animals in their care using science. For example, in the proposed legislation, there's a ban on cetaceans performing for the public under the assumption that it's stressful, yet research, which is article three that I have provided to you, has indicated that dolphins do not act stressed in anticipation of training and performance.

Another investigation comparing wild dolphins to captive dolphins actually indicated that captive dolphins were healthier than the wild dolphins. That is in article four, which I have also provided to you.

In my extensive experience, accredited zoos and aquaria are far more eagerly pursuing research into animal welfare than most other animal industries, including the food and companion animal industries. Another example of the research would be article five.

The CCAC has developed guidelines for the care and use of marine mammals that could be implemented as regulations to ensure that the highest standards of welfare are met in captive cetaceans and allow science to continue to guide the evolution of these standards. Indeed, colleagues of mine in the U.S. are currently doing a scientific study involving more than 300 captive cetaceans held in seven nations to determine the factors that are critical to improved cetacean welfare, with the aim of improving it around the world.

Vancouver Aquarium was going to participate in this international study until the Vancouver parks board banned them from housing beluga, so Canada will not be part of this international effort.

In conclusion, I want to dedicate my testimony to the critically endangered cetacean species I already mentioned, the vaquita. There are fewer than 10 left and the population is expected to become extinct in a few weeks, as the fishing season peaks. We could have saved them. If we had started years ago when the population started to crash, we could have learned more about them and we could have set up a captive population. We could have saved them from extinction, but now they're going to be gone forever and that is shameful and unforgivable.

Thank you.

[Blaine Calkins]

I'm never terribly concerned about the blatantly obvious—well, the intended—consequences of legislation. I don't mean “blatant” in a pejorative way. The problem that I have as a legislator is always the unintended consequences of legislation and what those might actually be.

I have a question for you as the department officials. Would there be a way to achieve the result of ending the captivity of cetaceans without S-203? Certainly, every one of those organizations, like the Vancouver Aquarium and Marineland—and I'm not advocating for this—must get permits somewhere from somebody in order to continue on with their operations. Why would it not be a matter of just revoking those in perpetuity, instead of having to create legislation that I'm afraid will eventually lead to the end of rodeos, captive breeding programs and a whole host of potentially beneficial things?

I feel like we're swatting a fly with a sledgehammer here.

[Joanne Klineberg]

No. I'm only able to say that, from a federal criminal law point of view, if Bill S-203 is not enacted, there would not be a requirement under federal law for the aquarium to obtain a licence from the provincial government in order to be able to engage in scientific research, which is something that they would be required to do after this bill, if it is enacted. The only provision of the Criminal Code amendments that I see affecting scientific research is the requirement to obtain a licence.

[Pat Finnigan, Liberal, Miramichi—Grand Lake, NB]

Another thing that would need to be clarified for me is clause 4 of Bill S-203 to prohibit the importation to Canada of living cetaceans as well as cetacean tissue or embryos, subject to a special permit. Apparently the English text of the clause refers to permits issued pursuant to proposed subsection 10(1.1) of WAPPRIITA while the French version of the text is silent on the type of importation permit required. That sounds very odd. I wouldn't know of any other piece of legislation in which the French version would be different from the English version.

Would you care to comment on that? Why is that?

[Gord Johns, NDP, Courtenay—Alberni, BC]

We know that Marineland argued that Bill S-203 will criminalize the births of beluga calves, separate from orcas that are currently in gestation. We've heard a clarification from Senator Sinclair that the law is not intended to apply retroactively. It's consistent with the bill's purpose of a phase-out and it's consistent with the charter's prevention of retroactive criminal law.

Can you confirm Senator Sinclair's interpretation as a valid interpretation and now clarify it in our Hansard, should the courts require that?