Fisheries Committee on March 18th, 2019

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

Thank you, Mr. Chair.

Thank you to the witnesses for being here today.

During the hearings a representative of DFO indicted that Canada's three oceans have somewhere around 60 different species of cetaceans and 18 of them are considered at risk, one way or another. Some have suggested that this bill will need to keep some of the species in captivity due to their endangered status to breed them or to eventually return them to their natural habitat.

Would you agree that we can do that to protect those species? Will that be prohibited with this bill?

[Joanne Klineberg]

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

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

If you have that special licence would it be criminal to have visitors, students, visit these locations where you could observe them? Would that also be permitted under the law?

[Joanne Klineberg]

Beyond possessing the animals already in captivity that would be grandfathered, the other offence that is provided for in the bill is the one we talked about a moment ago, which is a very long description of promoting, arranging, conducting, assisting at exhibitions or displays during which captive cetaceans are used for performance for entertainment. Everything would come down to the way that was interpreted, but I will leave to you to imagine what you think “performance for entertainment” would mean.

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

Okay, that's a bit vague but hopefully eventually it will be cleared up.

[Joanne Klineberg]

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

[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?

[Carolina Caceres]

I am not completely sure about the two clauses you are referencing. I haven't done a comparison of the English to the French so I don't have a response for you on that.

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

Do you think we should clarify that?

[Carolina Caceres]

It would be important to make sure that the intent in both the English and the French is the same.

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

Thank you.

Where is Canada compared to the rest of the world as far as legislating on animals in captivity, especially in developed countries? Where do we lie? Is this legislation going to be a world leader, or are we just catching up?

[Adam Burns]

I can't speak to international comparisons around provisions related to wild capture. I don't know if my colleague can speak to Criminal Code provisions.

[Joanne Klineberg]

I can't other than to say that, in reading through some of the speeches given at second reading, I seem to recall reference being made to some other countries that have bans on keeping cetaceans in captivity, but off the top of my head, I couldn't tell you which they are.

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

Have we over the years, with all the marinelands of the world, in Canada and the U.S. especially, benefited science, especially learning behaviour? Have we benefited and have the cetaceans benefited? Do you know if that's the case? Has there been any benefit, in other words, from what has been done by all those years of captivity?

[Adam Burns]

I can't speak specifically to whether scientific research conducted at one of those particular facilities you've referenced has contributed anything, but I'm not on the science side of our department.

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

Apparently the Vancouver Aquarium is going to appear today, and I know they have concern regarding the Criminal Code aspect of the bill making it more difficult to do their research.

Would you have any comments on how that could impact their programs?

[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.

[The Chair]

Thanks, Mr. Finnigan, that's perfect timing.

Now to the Conservative side, we have Mr. Arnold for five minutes or less, please.

[Mel Arnold, Conservative, North Okanagan—Shuswap, BC]

Thank you, Mr. Chair.

Thank you for being here today. Unfortunately, we've only got you for an hour. The Senate had three years on this bill, and we get three hours, so we're trying to cram a whole lot of stuff into one short day here.

One thing concerns me, and the entire paragraph has been mentioned a number of times, so I won't read the whole paragraph, but it's in proposed subsection 445.2(4). It deals with an exception and who would be excepted.

Every one commits an offence who promotes, arranges, conducts, assists in, receives money for or takes part in any meeting, competition

The word I want to focus on is “promotes”.

The question has been asked: If someone goes outside the country and views a whale or dolphin show, and then comes back and puts it on their Facebook page, can you unequivocally say that that would not be considered as promoting that type of an event? Unequivocally?

[Joanne Klineberg]

I can get pretty close to unequivocal on this.

[Mel Arnold, Conservative, North Okanagan—Shuswap, BC]

But you can't say unequivocally.

[Joanne Klineberg]

Again, from a criminal law point of view, when we have offences that have a series of different action verbs in them, you want to look at all of them in the same context and make sure that any interpretation you're giving to one is consistent with the whole.

When I look at the other words, “arranges, conducts, assists in, receives money for”, that tells me that this offence is targeting the individuals who are putting on the display. It doesn't target the individuals who are going to witness the display.

[Mel Arnold, Conservative, North Okanagan—Shuswap, BC]

Okay, so I'll go back again to the word “promotes”. In Canada, we have travel companies and travel agents who sell packages to U.S. destinations and to foreign destinations. Part of that packaging and promotion is dolphin shows.

Would they be breaking the law if they promoted those activities in Canada? As I see it in this legislation, they would.

[Joanne Klineberg]

It's a sophisticated little problem of criminal law when part of a criminal offence looks like it's taking place in Canada, and another part looks like it might be taking place in another country.

The scenario you're describing involves someone in Canada who's paying for promotional material and advertising, but what they're advertising is for an activity that's going to take place in another country where it may be perfectly legal, so there's a combination of sort of domestic and foreign things happening.

There isn't necessarily a perfectly clear criminal answer on that, except I do feel quite confident in saying that the likelihood of there being a prosecution is incredibly low for something like that.

[Mel Arnold, Conservative, North Okanagan—Shuswap, BC]

Then it would take a court case and a judge's decision to save it. No one's going to be charged.