Fisheries Committee on March 18th, 2019

[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.

[The Chair]

Thank you, Mr. Wright.

We'll now go to Mr. Burns from Marineland of Canada Inc.

You have seven minutes or less, please.

[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.

[The Chair]

Mr. Burns, we've gone way over time.

[Andrew Burns]

I'm sorry.

[The Chair]

I'm going to have to cut you off there, unfortunately.

Hopefully, anything you haven't said will come out in the line of questioning; or, if you submit your written submission to the committee, we will certainly get it.

I want to go back and correct something as well. Through error, when I went to Mr. Wright for Ocean Wise, there was no indication of sharing time, but there was some time left. I understand Dr. Haulena is going to use that time. There are two minutes and 18 seconds left on that time, when you're ready, sir.

[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—

[The Chair]

Excuse me. Dr. Haulena, I have to interrupt for a second. Lights are blinking, which means the bells are going for a vote. For us to continue beyond this point, I have to ask for the unanimous consent of the committee to continue on even till 6:15 p.m. That will allow everybody to get back in time.

Is everybody agreed?

[Some hon. members]

Agreed.

[The Chair]

Okay. You may continue.

[Dr. Martin Haulena]

I shall be quick. Thank you.

For the population of these whales, the time needed to reverse the impact of these threats might be too great. J50 was a young female, with her reproductive years still ahead of her. While the chances of saving her were slim, we believe these iconic killer whales are worth our very best effort. In extreme cases like this one, veterinary intervention or, should it become necessary for an endangered species or population, an ex situ conservation program, in which we take members of an endangered population into human care for protection, could be our last best hope.

J50 was not the first cetacean patient at the marine mammal rescue centre. Others range from Springer, the young whale rescued and returned to her home off the north coast of Vancouver Island in 2001, to harbour porpoises, dolphins and a false killer whale in 2014. In 2017, members of our team were asked to help return an endangered beluga whale to its natural range in the St. Lawrence estuary, after it became trapped in the New Brunswick river system.

With our oceans warming, prey becoming harder to find, and the impacts of industry and development increasing, there's little doubt that more marine mammals will need help in the future. In every case that we respond to, we work closely with, and under the authority of, DFO, or NOAA in the United States. In the case of J50, it was with both federal governments.

Our team also continues to build capacity to respond to marine mammals impacted in the event of an oil spill. In almost every one of the past nine years, we've joined research expeditions in the Arctic to gather data about narwhals and their rapidly warming environment, at the request of DFO.

These are just a few examples of how we are directly conserving species and improving welfare for wild cetaceans in Canada. It is important to note that we are the only not-for-profit team of first responders in the water, performing life-saving rescues when a cetacean is left stranded along our shorelines.

We've provided some suggested amendments to you. I hope you will consider them seriously. Thank you. I really do believe it's important to all of us here that we do the best we can for these incredible animals. I think we can all agree on that. I appreciate your time and consideration.

[The Chair]

Thank you for that, and thank you to all our presenters. We have approximately 14 minutes left before 6:15 p.m. Do we want to go with three fives? If we go with sevens, it's not going to—

[Rob Nicholson, Conservative, Niagara Falls, ON]

Let's go with three fives, Mr. Chair.

[The Chair]

Okay.

Is everybody in agreement with that?

[Some hon. members]

Agreed.

[The Chair]

Okay.

Mr. Hardie, for the Liberal side, you have five minutes or less, and I'll be very strict.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

I'll just look up and down the line. Does anybody have a question from our side here? Just put your hands up or tug on my sleeve.

Mr. Burns, were you in the room for Senator Sinclair's testimony?

[Andrew Burns]

Yes, I was.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

Did you get any comfort at all about some of the issues? You've raised issues that he responded to. He suggested that his reading of the legislation would not result in the kind of consequences that you've been talking about.

[Andrew Burns]

With respect, as I stated, I believe he misunderstood the argument we were making. He referred to the sub 3 section, when we were referring to the sub 2 section. I could also state —

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

Be very quick, sir, please.

[Andrew Burns]

This opinion is not just mine. The opinion has been reviewed by the former director of criminal prosecutions for the Province of Ontario, the top Crown for the Province of Ontario, who agrees with our view.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

In short, could we say that this could likely end up at the Supreme Court of Canada?

[Andrew Burns]

Easily.

[Ken Hardie, Liberal, Fleetwood—Port Kells, BC]

Thank you for that.

Dr. Graham, in earlier testimony we tried to make a distinction between a captive cetacean and one that may have been taken into custody for purposes of some form of remediation. Do you think that rather than taking an animal out of the wild and putting it into a confined area...? Let's discard the whole notion of being there for performance purposes because that, I don't think, really passes muster with a lot of people anymore. Do you think it's necessary, or could we actually, by confining an animal into a bay or something like that, do what would be necessary, first of all to provide health and support and second to do some of the research that you were citing earlier?