Justice Committee on Jan. 31st, 2008

[The Chair, Conservative, Art Hanger]

I'd like to call the Standing Committee on Justice and Human Rights to order on this Thursday, January 31.

Our committee will be debating Bill S-203, An Act to amend the Criminal Code (cruelty to animals). I believe the bill was sponsored through Senator Bryden.

Senator Bryden, you are first on the list to testify.

Colleagues, after Senator Bryden's testimony, there is going to be a brief break to discuss some committee business. Normally I would conduct this at the end of the session, but there is a concern regarding a time issue, so we'll try to quickly deal with that business halfway through the meeting.

Senator Bryden, you have the floor.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

Thank you, Mr. Chairman and committee members, for fitting consideration of Bill S-203 into your busy agenda.

This is a very straightforward bill. It amends the sections of the Criminal Code that deal with cruelty to animals to increase the maximum penalties that a court may impose for the offences set out there. In doing this, the bill responds to the most serious deficiency in our criminal law for the protection of animals by providing enforcement officers, prosecutors, and courts with access to penalties up to levels the offences warrant and Canadians expect, which act as substantial deterrents to those who would commit these terrible acts of animal cruelty.

Under the existing Criminal Code, all animal cruelty offences, with one exception, are punishable only on summary conviction. The maximum penalties that may be ordered by a court are limited to a fine of $2,000 and/or six months' imprisonment. The one exception relates to killing, poisoning, or maiming cattle, which is an indictable offence punishable by imprisonment of up to five years.

There is a broad consensus that these penalties are not adequate. They do not reflect the seriousness with which Canadians view these crimes today, and they do not present an effective deterrent. This is what Bill S-203 addresses. It seeks to fix the most serious deficiencies in the law as it stands now.

There is significant support for this bill from various and varied stakeholders. There is also opposition from some animal rights lobby groups, some humane societies, and some individuals, but I believe I can safely say that no one is opposed to what is in this bill. Any opposition relates to what is not in this bill, and as you are all aware, this bill does not prevent those who desire to create a more ambitious and comprehensive regime from pursuing their goals.

I will very briefly describe the provisions of the bill and the changes they would effect.

First, each of the offences would become a hybrid offence, allowing for the prosecutor to decide, on the basis of the seriousness and the circumstances of that particular case, whether to proceed by way of indictment or summary conviction.

Right now, only injuring or endangering cattle can proceed by way of indictment. All the other animal cruelty offences are at the exact opposite end of the spectrum. They may be prosecuted only under summary conviction, which in our system, as you are well aware, is generally reserved for less serious offences. This in itself sends the wrong message. Bill S-203 would correct this and make all of the animal cruelty offences hybrid ones.

The bill does not create any new offences. I repeat, this bill does not create any new offences. That was an important principle during the drafting of the bill. The goal was to keep things as simple and straightforward as possible.

You may then be surprised to see a new proposed section 445.1 in this bill and to note that the language of proposed sections 445.1 and 446 does not precisely recreate the existing language in section 446. This reflects the fact that in setting out the new penalties, the bill distinguishes between situations in which animals are injured intentionally or recklessly, and situations in which they are injured by neglect. As you know, our criminal law and justice system generally makes a distinction between acts that are done intentionally, knowingly, or recklessly and situations of negligence. This is reflected in the penalty structure proposed in Bill S-203.

In brief, for those offences involving intention or recklessness and also for the offence of causing pain, suffering, or injury by failing to provide reasonable care, the maximum penalty would be increased to five years' imprisonment on indictment, or 18 months' imprisonment and/or a fine of $10,000 on summary conviction.

For other animal cruelty offences, the bill would raise the maximum penalty to two years' imprisonment on indictment. Where the prosecution elects to proceed by summary conviction, the maximum fine would be increased to $5,000 from the current $2,000 and the maximum imprisonment would remain at six months.

These penalties are drawn from those set out in previous bills prepared by the Department of Justice. They were based on a comprehensive comparative examination of animal cruelty statutes in other jurisdictions as well as a comparative analysis of similar types of offences under the Criminal Code conducted by the Department of Justice.

Under subsection 446(5) of the Criminal Code, a court today is authorized to make an order prohibiting an accused from owning or having custody and control of an animal or a bird for a period of up to a maximum of two years. This two-year limit as been recognized as inadequate. Bill S-203 would take away the cap, and in fact it provides that in the case of a second or subsequent offence any order made by a court must be for a minimum of five years. This is the proposed new paragraph 447.1(1)(a), which I mentioned earlier.

Finally, the bill contains a new provision authorizing the court to order the accused to pay reasonable compensation to a person or organization. This most often arises with animal welfare agencies who cared for the animals that were injured. That is proposed new paragraph 447.1(1)(b).

I have one final point before I conclude. Aboriginal rights, under section 35 of the Constitution, protecting traditional hunting, fishing, and trapping methods are unaffected by this bill. Indeed, aboriginal members of the Senate participated in the development of this bill, and they worked to ensure that the bill meets aboriginal concerns.

Mr. Chairman, that is my very brief overview of this bill. It is a short bill, but I believe it will go a long way to help address a serious problem with the Criminal Code as it now stands. A series of attempts by different governments over the past 10-plus years have failed to pass Parliament. If that situation continues into the future, the modest amendments in Bill S-203, if adopted, will allow the courts to punish offenders as the offences warrant and will work to protect the animals until such time as a new and more sophisticated regime is enacted.

Mr. Chairman, I would like to end by quoting Donald Piragoff, senior assistant deputy minister, Department of Justice, who testified before the Senate legal and constitutional affairs committee. After describing the provisions of the bill, which was Bill S-213 then and is now Bill S-203, he continued, and I quote, “Together they constitute a significant improvement to the current law regarding sentencing and one with which all Canadians would agree.”

Thank you for your attention.

[The Chair, Conservative, Art Hanger]

Thank you very much, Senator.

We'll go right to questions. The first round is seven minutes.

Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chairman.

Thank you, Senator.

I just have a few questions.

I wasn't around for any of the previous legislation and the back and forth, but I've read the code, and I've read your bill, and I've read parts of Bill C-50, and I've read my colleague Mr. Holland's bill. I guess what I'm trying to get at, Senator, is that I respect what you've done in trying to move the issue forward. But in your attempt to move the ball forward but not lose the game, so to speak, do you think you could have pushed it a little further? In other words, are you open to friendly amendments that would move your bill more towards Bill C-50 without losing the battle?

If you don't know what I'm talking about--I suspect that you do--I'm talking about things like amending the bill to include definitions for animals. As you know, the sense of animal protection and cruelty in section 444 and on in the code is medieval. It's animals as possessions only, not as sentient beings and so on.

Do you think you could move on that point? Do you think you could move on making, as the code sort of does, the distinction between owned animals and wild animals go away? I respect what you're saying about the troubles bills get into when they encroach upon aboriginal rights or the pastimes of people who hunt and fish. I understand that. But in calibrating this, did you take into consideration just how far you could go to move the ball forward without losing the day?

[Senator John Bryden]

Thank you for your question, or questions.

I guess the best way for me to answer that is to try to give you the context in which I created this bill.

What scuttled every other attempt to conclude a bill and get it through Parliament was the fact that the number of amendments that were made, the number of changes that were made, were considerable. The position that was taken, at least publicly, when the first bills came forward was that the principal concern of the Canadian people, the public, was that the penalties were not adequate to fit the crimes that were occurring. And the statement was made over and over--and many of you will remember this, or at least some of you will remember this--that the principal reason for amending the bill, 80% of the reason for creating an amended bill, was to increase the penalties. The rest of the thrust was to improve the wording, modernize the wording, and tailor a few things. But the primary focus was to get the penalties up.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Are you suggesting that it might scuttle the bill, in short? New Brunswickers are known for brevity and directness, and you're no exception to that. Would amendments such as the one I'm speaking of scuttle the bill?

[Senator John Bryden]

Yes, and the reason I say it would scuttle the bill is that what we've learned in dealing with these bills is that there is not “an” amendment. If one amendment is good, 15 are a lot better, and that is what has mired this file for years and years.

I'll make this as brief as I can.

We have a criminal code on cruelty to animals that has served us very well for a long period of time, and what's more, it has a history. Prosecutors understand it, the people who work with animals understand the law, and the courts understand the law. The reason it does not work is that the penalties are so anemic that the courts throw up their hands, because if somebody runs a puppy mill and he's charged, convicted, and pays his $200 fine, or whatever it is, he's back in business in a week.

What I decided to do, and it's either right or wrong, is say that the law is not what's wrong, what's wrong is that we need to adjust the penalties, and that is why I purposely avoided changing any of the existing law, so that we have the context, we have the precedents, and what will be changed are the penalties that would be used.

Nothing prevents somebody else who carries a different brief, for whatever reason. They can change it tomorrow, as you all know. But one of the reasons it did not work very well before was that there was not enough consultation on that 20%. Nobody went and talked to the aboriginal people. Nobody actually sat down and explained why it would make a difference in protecting the actual animals to create a whole new part of the Criminal Code instead of using the part that is already there.

Anyway, I'll stop.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

My time is running out, but to be more specific on the tail end of your answer—and maybe we'll hear this through the testimony—do you think the aboriginal community would be content with Bill S-203?

[Senator John Bryden]

Absolutely.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

How do you know that?

[Senator John Bryden]

Because I had seven aboriginal people working with me on this during its development, and they were in the lead in opposing the other bills that came down through the Department of Justice, because they didn't know where they were going, whether it was going to affect their hunting, fishing, and treaty rights, and there was no way of finding out.

There were things that showed up in those bills that used words like creating a new offence of killing an animal in a brutal manner, and there was no definition of what constitutes “brutal”. What constitutes “brutal” to some starlet sitting on the ice counting little white seals is quite different from what would be brutal to a fisherman or a harvester of wildlife.

I can say without any question—and we could bring people to give evidence—that the aboriginal community is comfortable with this bill, and that's one of the reasons I stuck to my knitting and said, we have a bill, they've lived with it all their lives, and therefore it's not a problem for them. What they need to know is where they're going, and they accept the level of the penalties.

[The Chair, Conservative, Art Hanger]

Thank you, Senator, and thank you, Mr. Murphy.

Monsieur Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Welcome, Senator.

I was a little taken aback by your testimony. I can appreciate the battle that you have waged. When one has convictions and is involved in drafting a bill, one obviously hopes that the bill will ultimately be adopted.

However, no doubt you know that we have advised several members of Parliament that we find your bill comes up very short on content. The key issue is not increasing penalties, since few people are actually brought before the courts. We have even heard that barely one per cent of persons who commit acts of cruelty involving animals are effectively charged with a crime.

As long as we are re-opening the debate and considering draft legislation, why not take steps to include a definition of “animal” in the bill, to include animals as property and to consider the case of wild and homeless animals? Several of the shortcomings in your bill were brought to our attention, as parliamentarians. Other members have endeavoured to correct these shortcomings. I won't identify these individuals by name, but one of them is seated right next to me at the table today.

Furthermore, if ever the House were to vote on the bill and send it off to the Senate, would the Upper House adopt a bill with even stricter measures? I admit that the two bills are not incompatible, but you cannot pretend that no one is opposed to your bill. I have heard many arguments, as I am sure my colleagues have.

Animal welfare organizations have roundly criticized your bill, arguing that it has serious shortcomings. Will you admit that there is opposition to your bill? Let me say again that the two bills are not incompatible, but I have to wonder, while we are on the subject, why we shouldn't take things a step further. Basically, will you admit that animal welfare groups do not support your bill, and prefer the one tabled by a colleague in the House?

[Senator John Bryden]

I recognize that a lot of people do that. As for whether they do that for good reason, one would say it depends on whether you're buying or selling. The fact is, as it exists now, a lot of it was based on the idea that the Criminal Code for protection of animals applied only to domestic animals. Since 1953, the section in the Criminal Code that makes it an offence to cause unnecessary pain, suffering, or injury to an animal has applied to strays and to wild animals. It is not restricted.

I was amazed when certain animal rights people appeared at the last meeting of the legal and constitutional affairs committee in the Senate and indicated they were shocked and surprised when they were told by the Department of Justice that the present code covers wild animals and stray animals as well as domestic animals under the provision I just mentioned. They didn't know.

[Réal Ménard, Bloc, Hochelaga, QC]

Just a minute. I do not want to get into the specifics, but I would like to clarify the origins of the bills. We need to bear in mind, when we get down to studying the bill as members of the House of Commons, that animal welfare groups do not support this initiative. We agree on that.

In your opinion, does your bill have the support of the Conservative government?

[Senator John Bryden]

That is up to the government.

I certainly did support my bill. At the time it was given second reading, the person who was the lead on the government side--I think it was Mr. Moore--categorically said the government supports this bill. I also had that information from the Bloc. Whether that's still true or not, I don't know, but that was indicated to me as well.

The point is this. It's not up to me. If you want to amend the bill, then that is your right, of course. All I can do is bring to you the experience I have had over much more than 10 years, and my experience is--

[Réal Ménard, Bloc, Hochelaga, QC]

If you have no objections, I have a third question for you. Our concern is that should the bill, as amended, be adopted and sent to the Senate, isn't it possible that some of your colleagues may argue that they have already voiced their opinion on this matter and hence decide not to support a second bill? In your opinion, would senators support another bill, namely the one introduced by my colleague here in the House, a bill that goes much further? Can you reassure us in some way? I realize that you do not have a crystal ball, that you do not have any control over senators...

[Senator John Bryden]

Yes.

[Réal Ménard, Bloc, Hochelaga, QC]

...and that their actions are unpredictable, but I am curious about your take on the situation.

[Senator John Bryden]

It would depend on the bill as it comes. We do our job. We do the analysis and we would do our job. Would there be any bloc that says no, having passed that, then we won't pass any more? And the answer is no, absolutely. That is not an issue.

I'll tell you what is as much of an issue as you have back in your mind. What happens if my bill does pass is that all of a sudden, to those people who carry certain agendas, the lever they've had for so long to try to get this Cadillac bill dealing with animal cruelty passed is gone.

The fact of the matter is that the major concern of the public is that they need to have adequate penalties in order to have the court system work properly. And once that's gone, in terms of the concern of a lot of people who are saying, but the Senate might block it, the Senate doesn't wander around and block stuff simply to block it. The fact of the matter is that some of them are concerned that once that lever is gone, it's goodbye Charlie Brown to our influence in trying to control the animal rights of Canada.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Senator Bryden.

Monsieur Ménard, good question.

Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Senator, I really don't even know where to start with you, but let me start with the fact that you're not elected, is that correct? The Senate of this country is not elected. The Senate of this country has twice refused to adopt legislation that the House of Commons, which is elected, sent to them. Is that correct?

[Senator John Bryden]

I'm not here to be cross-examined, I don't believe, and I think you know the answer to those questions as well as I do.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

All right, you're not elected and the Senate is not elected, and twice you've blocked this legislation in the Senate. Why would we expect that if we made any amendments, you wouldn't do it a third time?