Justice Committee on Feb. 14th, 2008

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Okay.

[Réal Ménard, Bloc, Hochelaga, QC]

So, it is important that you vote for it, Daniel.

[The Chair, Conservative, Art Hanger]

Mr. Comartin.

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

In terms of that explanation, subamendments could be made to my amendment.

[The Chair, Conservative, Art Hanger]

Yes, before it's adopted.

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

Which might include some of the other amendments--no, it probably can't, because it covers all the other ones.

[The Chair, Conservative, Art Hanger]

Yes.

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

I'm just going to use an example, Mr. Chair. There may be some wording that would be deleted from this. I guess I'm saying that because I'm almost anticipating that it may happen.

[The Chair, Conservative, Art Hanger]

Right.

Mr. Comartin, you have the floor on your amendment NDP-1.

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

Thank you, Mr. Chair.

Mr. Chair, the effect of this amendment would be to—I don't want to camouflage this in any way—incorporate what was Bill C-50 in the last Parliament into this. What we are doing is moving a piece of legislation that was---

[The Chair, Conservative, Art Hanger]

I'm sorry, I was asked whether it was out of order or not, Mr. Comartin. You amendment is admissible.

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

Thank you, Mr. Chair.

What we are doing here is moving the legislation that was passed in 1892--so back in the 19th century--into the 21st century. In that regard it was interesting to hear the Minister of Justice, who was in front of the Senate two weeks ago, making exactly the same argument about the need to update legislation that's over 100 years old. I think the points he made at that time, and it was particularly around the age of consent, were very well taken. That part of the bill was one I strongly supported, and I still do.

By the same argument, that same sentiment applies to Bill S-203, and in particular the amendments I'm proposing here. We're moving away from an attitude we had as a society, and the way we treated animals at that period of time, to the way we want them treated and expect all of our citizens will treat them at this period of time.

Mr. Chair, I'm cognizant of the time. The amendment deals with a definition of moving animal.... The sections right now, 444 up to 447, are a treatment of animals as property. We're in effect reallocating that attitude of them as sentient beings. So the first thing we're doing is to move that “animal” be “a vertebrate, other than a human being”, as the definition for animal. That gets repeated in the balance of the amendments.

Mr. Chair, in that regard we're attempting to move away completely from the concept of animal as property to animal as a sentient being. You heard again today the importance of that type of approach in terms of treating people who obviously have serious psychiatric, emotional, psychological problems, and who show clear signs of violence by mistreating, abusing, or killing animals. By shifting that definition completely away from property to one of sentience, it's part of the way we, as a society and as a legislature, are addressing that issue. I think that part needs to be said, and it needs to be emphasized. So that's proposed section 444.

With respect to proposed section 445, we heard today from WSPA in terms of not being able to charge people for abusing animals on the basis of our inability to show a clear intent--one could say an almost absolute intent. With the concept of mens rea, the concept of intent in our criminal law is very clear. But the way the current sections of the code are written, and more importantly, Mr. Chair, the way they've been interpreted, is that we need to introduce a broader concept. So these offences would be not only wilful ones but also reckless ones.

I think of some of the cases I handled as a defence counsel with respect to animals being allowed to starve and no one being convicted of that, even though it was obvious that the animals were abused by neglect rather than physically abused by using instruments to torture them. In proposed section 445, we're moving away from pure absolute intent to bringing in the concept of recklessness. I want to say to the committee that that concept is not simple negligence; that concept of recklessness is a higher standard, but it is less than the absolute wilfulness that is in the existing one.

Mr. Chair, we go on in that section to deal with a whole bunch of specific types of conduct that would become offences. I'm assuming members have read this. I think the expansion of the poisoning section is important. That's proposed paragraph 445(1)(d). Again, it broadens what is in the existing code.

I think we've all been particularly sensitized to the whole concept of using animals to engage in fighting because of the recent conviction of Mr. Vick in the United States, and 445(1)(e) broadens it to the point of encouraging, promoting, arranging, assisting, and receiving money for the fighting or baiting of animals. It covers, as best we can see, all of the possible conduct that goes on in that activity now and makes it a very clear criminal offence.

The next one, under proposed paragraph (f), is specifically dealing with the issue of the cockpit. We've got a problem in the existing part of the code because there are provisions on cockpit fighting but it's it's very narrow as to what is a cockpit. What we've done here is we've kept “cockpit”, and then we've added “or any other arena” to the wording that's already in the code .

I'm told by a number of the animal welfare groups that one of the common areas where they carry on cock fighting is a temporary site in underground parking garages, and that clearly would not be an offence under the existing sections of the Criminal Code. That allows us to get at that kind of conduct, because right now--at least from what we're hearing from the animal welfare people--it is the most common arena. So it'll now be covered.

The next section's pretty straightforward. It's a continuation to make sure we catch all of those.

Then in subsection 445(2), which is in Bill S-203 now, so it would be replacing that, we just had some discussion on this in response to Mr. Bagnell's question about changing from simply what has traditionally been an offence treated as a summary conviction offence to a hybrid offence that'll either be a summary conviction or indictable, generally speaking, based on the seriousness of the conduct. Also, the indictable offence would be used much more often if there's a repeat offence, but at the prosecutor's discretion.

We are then moving to more of the negligence part of it in proposed section 446, which covers the negligent causing of unnecessary pain. This test is again a somewhat lower standard. It really is addressing this primarily to the owners of animals or those serving as their designate or delegate in terms of controlling an animal. So we're introducing a new test that would incorporate the concept of negligence.

I think the easiest analogy--although I'm somewhat reluctant to use it--is the type of cases that we have currently in our child abuse regime, where you've got assault by the custodial parent or other caregivers and a separate offence for neglect, and that concept has now been incorporated into 446.

In subsection 446(2), we're in effect defining “negligently”. This is of concern because of the farmers, the trappers, the fishers, and the hunters. “Negligently” is being categorized, I think, quite clearly. If you go back to the negotiations we had in running up to both Bill C-50 and Bill C-22, which was the precursor of Bill C-50--that was the bill that went to the Senate and was rejected--there were a great deal of negotiations around that standard because it was, I think, a very sincere concern by the groups who raise animals or hunt or fish.

So “negligent” means “departing markedly from the standard of care that a reasonable person would use”.

That's a standard that's well established in each one of those sectors, whether it's farming, fishing, or hunting. If you move markedly from that standard, you are eligible to be convicted for negligently causing harm to, or the death of, an animal.

Part of the scaremongering that has gone on in regard to this legislation has turned on the prospect of the stereotypical animal rights person using this proposed section 446 to bring private prosecutions against farmers, fishers, hunters, and people who do research with animals. But each one of those sectors of the economy have long-established standards. So all that has to be done is to establish that they have met that standard.

It's important to realize that this is not going to produce a tidal wave of charges. I don't want to give the fearmongers any openings on this point. Right across the country, because of amendments to the Criminal Code, private prosecution is extremely limited. It has to be approved by the local prosecutor, in the form of the Attorney General. So there are strict limitations and controls. If a private prosecution is attempted, the prosecutor will allow it only if the conduct in question falls below the established standard. If it does not, the attempt will be disallowed.

So I think we have a very tight mechanism within our criminal justice system—in the definition, the standards that have been set in the various sectors, and in the ability of our prosecutors, in the form of the Attorney General, to prevent malicious or frivolous private prosecutions from getting into the courtroom.

It's a valid concern. Over the years, I have had any number of clients who had to defend themselves from government action that had no reasonable chance of prosecution. Quite frankly, the risk of this is greater from our government agencies than from private prosecutors. But in any event, I think we've shut that door as tight as possible, and I don't think we're going to see any tidal wave of prosecutions.

In proposed subsection 446(3) it's the same thing. These offences would be treated as either summary or indictable offences, with the prosecutor deciding which one.

In proposed section 447, we're expanding the authority to impose penalties in addition to incarceration or fines. These are incorporated in part in the existing Bill S-203, but there are some additional ones here. In effect, they're giving the prosecutor, and of course the court, the authority to order that a convicted person can no longer have animals under his control. There can be an order made, which is already in existing Bill S-203, to order the convicted perpetrator to compensate the agency that took care of the animals. I think those are the two points.

In proposed section 447.1, there are defences. These are common law defences and they are not being affected at all. They would still be allowed.

In my criminal law course during my first year of law school, I remember being given an example of somebody being charged with shooting a deer out of season. But it turned out, when it came before the court, that the deer was actually attacking the man who shot it. The defence raised was a common law defence--it wasn't in the statute, this was a provincial statute--of self-defence, in effect. The person, of course, was acquitted. It's those kinds of defences that are in subsection 429(2). Those defences continue to be in existence. They will not be impacted by either the recklessness clauses or the negligence clauses. Those defences will still exist.

This was one of the feints we got from the Senate sending back Bill C-22 , because we didn't put the non-derogation clause in.

It was interesting at that time, Mr. Chairman...and I feel like an historian telling these stories. But the reality was that we were just beginning to consistently put the non-derogation clause into legislation. There was all sorts of environmental legislation going through at that time, and I can recall that we began putting it in at that period of time, but we had not done it in Bill C-22 because when it went through the House of Commons, we had not started putting it into the legislation.

Anyway, that was one of the excuses the Senate had for sending it back. It wasn't their real opposition to the legislation. But that is now incorporated. It was in Bill C-50 and is now in this amendment as well.

In proposed section 447.3, we're simply being clear that we also want special provisions. Mr. Chair, this came from our police forces across the country, where animals were being targeted. These are animals police officers use--horses and dogs--and they were being specifically targeted. For instance, we had drug houses that were booby trapped specifically to get dogs, including poisoning, but also booby trapped generally with other types of obstructions that would kill an animal--a dog--rather than a human being. So we heard that. We heard that in a number of demonstrations where horses were being used by police officers, the horse was being targeted by demonstrators trying to get at police officers.

So we have built in specific provisions for that. We heard from a number of police forces across the country in that regard.

The final proposed subsection 447.3(4) does, as is the case in the other sections, make specific provisions that provide for the cost of treating the animal to be taken over by the perpetrator of the conduct, who has now been convicted.

Thank you, Mr. Chair.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Comartin.

Are there any questions or debate?

[An hon. member]

Question.

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

Can we have a recorded vote?

[The Chair, Conservative, Art Hanger]

We will have a recorded vote on NDP-1.

(Amendment negatived: nays 9; yeas 1)

[The Chair, Conservative, Art Hanger]

Next in line, I would ask you to turn to the last motion in your handout, amendment BQ-19 on page 28. There are 14 amendments that are consequential to the adoption of this amendment. If the member doesn't object, we could apply the vote on this amendment to the following amendments.

[Réal Ménard, Bloc, Hochelaga, QC]

That would be fine.

[The Chair, Conservative, Art Hanger]

These would be Bloc amendments BQ-1, BQ-2, BQ-3, BQ-4, BQ-5, BQ-6, BQ-7, and BQ-8. I believe amendments BQ-10 and BQ-11 are in the same form, so....

You're going to choose amendment BQ-11? Okay.

So BQ-11, BQ-12, BQ-13, BQ-16, and BQ-18 will be included.

Monsieur Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you, Mr. Chairman.

We decided to table five types of amendment. You are absolutely right in saying that there are a dozen or so amendments that are consequential to our first amendment.

Firstly, we paid heed to the argument put forward by a number of groups that it would be useful to include a definition of the word “animal” in order to move away from the tendency to treat animals as property, and that is exactly what this amendment does. Obviously, I will not rehash all of the arguments that we all heard when the witnesses appeared before the committee.

I would add that, as today is Valentine's Day, day of love and friendship, I would hope to have the support of both members from the government side and from the official opposition.

[The Chair, Conservative, Art Hanger]

Thank you, Monsieur Ménard.

Please note that with this motion, NDP-2 has a line conflict with both BQ-1 and BQ-2. Should these amendments carry, NDP-2 cannot be proceeded with.

Also, NDP-3 has a line conflict with BQ-4. Should amendment BQ-4 carry, the NDP amendment will not be proceeded with.

Finally, amendment NDP-4 has a line conflict with amendments BQ-9, BQ-10, BQ-11, and BQ-12. Should any of these amendments carry, NDP-4 cannot be proceeded with.

Is there any discussion or debate? I'll call the question.

[Réal Ménard, Bloc, Hochelaga, QC]

I would like a recorded vote.

[The Chair, Conservative, Art Hanger]

Okay, we'll have a recorded vote.

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

On a point of order, which one are you going to start with? Or are we going to vote on all of them at the same time?

[The Chair, Conservative, Art Hanger]

The one we're voting on right now is Bloc amendment BQ-19. And it applies to everything I had listed off earlier.

Is that clear? Okay.

(Amendment negatived: nays 8; yeas 3)