Fisheries Committee on March 18th, 2019

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

Let's say that the Vancouver Aquarium then divests itself of its last—or Marineland for that matter—beluga whales to an organization that is solely for entertainment purposes. It is then breaking the law.

[Carolina Caceres]

I'm not a lawyer, but if I understand Bill S-203 correctly, it would be up to the minister to determine whether that transfer is in the best interests of the cetacean's welfare.

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

Right, but the purpose of Bill S-203 is to say that those types of performances.... We as a nation are saying that we're passing this legislation because that type of performance is not in the best interests of the cetacean. Is that correct?

[Joanne Klineberg]

Yes. It would seem to be a reason not to authorize the export of the animal.

[The Chair]

Now we'll go to the NDP.

Mr. Johns, you have seven minutes or less.

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

Thank you, Mr. Chair.

Thank you, all, for your testimony. Maybe I'll start with Fisheries and Oceans.

Can you tell us the difference between Bill S-203 and Bill C-68? What would Bill S-203 prohibit that Bill C-68 would allow?

[Adam Burns]

The provisions in Bill C-68 that sort of parallel the objectives of Bill S-203 are entirely within the scope of the Fisheries Act. As I mentioned earlier, it would basically prevent the minister from authorizing, essentially, the capture of a cetacean from Canadian fisheries waters for public display purposes—which we haven't done since the 1990s—as well as provide the government with a regulation-making authority that could then be used to close the door on the import of any new animals brought in for those purposes as well.

I think your question, then, relates to provisions within Bill S-203 that are outside the scope of the Fisheries Act. Really, the one point would be about the captive breeding, which the Province of Ontario has exercised jurisdiction on with regard to orcas and the captive breeding of orcas.

In terms of the import restrictions of WAPPRIITA, one could view the regulation-making authority proposed in Bill C-68 as being similar to that, assuming that the appropriate regulations were made.

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

I'll definitely go to the jurisdictional piece in a minute.

You talked about the 1990s. A licence for live capture hasn't been issued since 1992. Is the reason for this that live captures are cruel? Is that what the department has found?

[Adam Burns]

I'm not aware of the rationale for the policy.

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

In terms of the jurisdictional piece, can you confirm that animal cruelty in the context of captive marine mammals involves concurrent areas of jurisdiction of private property as provincial and animal cruelty as federal?

[Joanne Klineberg]

Can you repeat that question?

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

Sure.

In terms of the context of captive marine mammals being under concurrent areas of jurisdiction, with the private property being under provincial and animal cruelty being under federal, if Parliament finds that cetacean captivity is cruel, can you confirm that the federal law is constitutionally valid and will prevail?

[Joanne Klineberg]

Right.

What I can tell you is that if you find that there is a sound scientific basis for concluding that it is inherently harmful and cruel to the animals to keep them in captivity, that's probably a sufficient basis to ground a federal criminal offence. At the same time, the same type of action is subject to provincial animal welfare laws, which do find their home in property and civil rights in the province.

So, yes, there is concurrent jurisdiction.

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

Okay.

Can you confirm that if Bill S-203 doesn't pass that the breeding and trading of live cetaceans will continue to be lawful in Canada?

[Joanne Klineberg]

From what I understand, Marineland is the one facility where breeding takes place. In Ontario, in 2015, the legislature made amendments to their animal welfare legislation that specifically prohibited the breeding of orcas, which is one type of whale. They put in place a number of other regulations setting out standards of care for other marine mammals, including cetaceans.

So, yes, if Bill S-203 does not pass, there will be a ban. There is a ban already in Ontario with respect to the breeding of orcas but not other whales.

[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?

[Joanne Klineberg]

I don't think you would have to look at it as a question of retroactivity or retrospectivity. What the criminal law is always trying to do is prohibit human beings from undertaking certain actions. If there are beluga whales that are already pregnant by virtue of the human action of handlers and other people at Marineland, that's activity that has already happened.

What will be criminalized from the coming into force are human actions that seek on purpose to facilitate the breeding, not the birthing. The birthing of a baby beluga by its mother is not breeding or impregnating, through the criminal law lens. The criminal law is focused on what human beings are doing.

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

Okay. Thanks.

Senator Sinclair talked about the intention required for the breeding offences...recklessness. If there is standard care to prevent pregnancies, in terms of the recklessness...being breached...the offence...?

Can you confirm that the interpretation is consistent with the bill's purpose of phasing out cetacean captivity, subject to any exceptions in the bill?

[Joanne Klineberg]

It definitely seems apparent that the way the legislation is drafted, from a criminal law point of view, it aims to prohibit breeding, save for that one exception where it's done for scientific purposes and is authorized by the province. To be honest, we don't have any precedents in the Criminal Code for criminal offences around breeding animals. I couldn't say with any sort of certainty how that would be interpreted in terms of what level of intention would be required. But on general criminal law principles, one would think it would have to be proved that the managers at the facility were deliberately or intentionally seeking to have the whales come together to do what they do.

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

Can you confirm then that it's under Parliament's authority to prohibit the breeding of cetaceans, their live capture, and their import and export, subject to the bill's exceptions?

[Joanne Klineberg]

Yes, again I think if the fundamental premise is that the breeding is being prohibited because all the whales born in captivity will face an inherently cruel life, then it would likely be constitutionally sound under Parliament's criminal law jurisdiction.

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

Thank you.

[The Chair]

Before I go to the government side I'd like to recognize the presence of the Honourable Rob Nicholson from the beautiful riding of Niagara Falls. Welcome to the committee, sir.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much.

[The Chair]

Now to the government side, to Mr. Finnigan, for seven minutes or less, please.