Justice Committee on April 27th, 2015

[The Chair, Conservative, Mike Wallace]

Ladies and gentlemen, I'm going to call to order meeting number 71 of the Standing Committee on Justice and Human Rights. We are televised today.

Pursuant to the order of reference of Friday, November 28, 2014, we're going to be dealing with Bill C-35, An Act to amend the Criminal Code (law enforcement animals, military animals and service animals).

We are fortunate to have the Hon. Peter MacKay, the Minister of Justice and Attorney General, to lead us off for the first hour of discussion on this particular bill.

Minister MacKay.

[Peter MacKay, Conservative, Minister of Justice and Attorney General of Canada]

Thank you, Mr. Chair.

Dear colleagues, I am happy to be here to discuss the bill on service animals.

It's always a pleasure to be with you, colleagues. We're here, as you know, to discuss yet another piece of criminal justice legislation that the government believes will contribute to making Canadian communities safer.

I thank you in advance for this committee's hard work and commitment to do a thorough and rigorous review of important bills, both government and private members'. I hope that my remarks today will assist you somewhat in the review of Bill C-35, the justice for animals in service act, referred to colloquially as Quanto's law.

Quanto, as many of you will know, was an Edmonton police dog that was fatally stabbed on October 7, 2013, while assisting police in apprehending a suspect. The tragic killing of this beautiful law enforcement animal struck a chord with a lot of Canadians, and many in the police, legal, and community groups called for greater recognition and protection of service animals.

Bill C-35 fulfills a 2013 commitment in the Speech from the Throne to enact a law such this in recognition of the daily risks undertaken by animals used by police to assist them in enforcing the law and protecting society.

Quanto's killing was also the most recent instance in which a police service animal was killed in the course of a police operation, and there are other examples that I'm sure you will be studying.

In addition to proposing to create a new Criminal Code offence that would specifically prohibit the killing or wounding of a law enforcement animal, Bill C-35 would also extend specific protection to trained service animals that assist persons with disabilities and military animals that assist the Canadian Forces in carrying out their duties.

The members of this committee, I'm sure, are aware that the person who killed Quanto was subsequently convicted under existing section 445 of the Criminal Code for the wilful killing of a dog, along with other offences arising out of the same set of events on October 7, 2013.

The criminal responsible was sentenced as a result to a total of 26 months in prison on various charges, of which the sentencing judge attached 18 months specifically for the killing of Quanto. The court also banned him from owning a pet for 25 years and banned him from driving for five years. In sentencing the offender, the judge stated, “The attack on this dog wasn't just an attack on a dog. It was an attack on your society and what is meaningful in our society”.

The government agrees wholeheartedly with this sentiment and believes that the creation of a specific Criminal Code offence, coupled with a specially tailored sentencing regime, would contribute to the denunciation, both general and specific, as well as deterrence of such crimes. These are well-known sentencing principles, I know, for this committee.

I would like to take a moment to review with you just what Bill C-35 proposes in terms of amendments to the Criminal Code.

Just to turn quickly to the substance of this bill, the bill would clearly define which animals would fall within its ambit.

Secondly, the legislation sets out the element of the new offence. The prescribed conduct is the killing, maiming, wounding, poisoning, or injuring of a law enforcement animal while it is aiding a law enforcement officer in carrying out the officer's duty and a military animal while it is aiding a member of the Canadian Armed Forces in carrying out that member's duties or a service animal performing its tasks.

The necessary mental element is wilful and without lawful excuse, a common standard used in the Criminal Code, in order that accidental or negligent conduct would not be criminalized by this new offence. Obviously, there is a great deal of discretion within the courts for findings of fact based on evidence.

Finally, thirdly, similar to the existing section 445 of the Criminal Code, “Injuring or endangering other animals”, the new offence would be subject to a maximum penalty of five years imprisonment when the accused is prosecuted on indictment and 18 months imprisonment or a $10,000 fine for a summary conviction. So there's a hybrid element to the offence.

It is the sentencing regime that distinguishes this new offence from section 445, and it does so by introducing a provision, section 718.03, which expressly directs the sentencing court to give primary consideration to denunciation and deterrence as sentencing objectives in respect of this new offence.

This provision will apply whether the animal in question is a law enforcement animal, military, or service animal. However, with regard to an offence committed against a law enforcement animal, Bill C-35 would require the sentence imposed for the offence to be served consecutively to any other sentence imposed on the offender for an offence committed at the same time. And as is the case where a law enforcement animal is killed while assisting a law enforcement officer in carrying out his duties, and the offence is prosecuted by way of indictment—so there is a selection here—the offender would be liable to a mandatory minimum penalty of six months. This joins the some 60 other mandatory minimum penalties already found in the Criminal Code.

During second reading of this bill I was pleased to note there was broad support across party lines for it. I see this as one of the more non-partisan issues and non-partisan legislation that may come before this committee. In fact, there is a great deal of support for the enactment of the provisions in the Criminal Code that deal with the intentional injuring and killing of law enforcement animals, military animals, or service animals.

At the same time, I acknowledge that there will no doubt be questions raised with regard to the proposed mandatory minimum penalties, where a law enforcement animal is killed while assisting a law enforcement officer engaged in enforcing the law and prosecuted by indictment. To pre-empt the questions that I know will come, I believe that a mandatory minimum penalty is warranted in these instances, both for general and specific deterrence and denunciation of this type of offence involving service animals. Like members of the military, members of the police, some of whom are members of this committee, these are service animals that are in harm's way—it's the only way I can describe it. They are doing a duty that is a higher calling expected of an animal, in the same way that police officers, of course, assume a certain degree of danger and liability.

Therefore, with respect to the mandatory minimum penalties imposed by this bill, I would ask the committee to take note that this provision was carefully tailored in several ways.

First, the prospect of the mandatory minimum penalty being imposed only arises in regard to the intentional killing of a law enforcement animal while aiding a law enforcement officer in carrying out those duties.

Second, the potential application of the mandatory minimum is further limited by the fact that it would only apply where the crown prosecutor proceeds by way of indictment. Prosecutorial discretion is always exercised, with a careful eye to proportionality, constitutionality, and totality, the same considerations used by a judge. Where the crown elects to prosecute this offence as a summary conviction, the mandatory minimum penalties, obviously, don't apply.

Finally, in terms of the length of the mandatory term of imprisonment, the six-month term of imprisonment is at the lower end of the range.

I would pause here to underscore, as I mentioned earlier, that the judge who sentenced Quanto's killer specifically imposed an 18-month sentence of the 26 months that were handed down for the killing of that service animal.

Bill C-35 also proposes to amend the Criminal Code to require that a sentence imposed for an assault on a police officer, or certain other peace officers, will be served consecutively with other sentences imposed on the offender arising out of the same set of circumstances.

We are strongly of the view that attacks on those officials who work on our behalf to protect society also represent an attack on our society and that such a provision is justified to express society's denunciation of such conduct and as a general deterrent.

To conclude, Mr. Chair, I would be pleased to answer questions by you and members of the committee with regard to this important bill.

I again thank you for the work of this committee. I'll take the opportunity to thank all those members of police, military, and those who use service animals for things such as comfort and mental health counselling that we are now seeing through canine and equine companionship, which is an extraordinary use of animals in society.

For the furtherance of the principles of justice, we had a recent example of a dog in the Edmonton Police Service which accompanied a child who was obviously feeling the trauma of a sexual assault. That dog was allowed to be on the stand with that young girl while she gave her testimony. I think this is the type of innovation that actually brings great credit to our justice system, and it shows and highlights some of the great people we have working alongside those animals to further the interests of justice.

Thank you, Chair.

[The Chair, Conservative, Mike Wallace]

Thank you, Minister, for those opening remarks.

We will now go to the question and answer period. The first questioner from the New Democratic Party will be by Madam Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

Minister, thank you for being here to discuss Bill C-35. I have a few questions for you.

This bill essentially has support. However, things have changed in our legal landscape since the bill was passed at second reading, before being referred to the committee. I am talking about the Supreme Court of Canada's decision in Nur. You partially reacted to that decision by anticipating issues that would be raised regarding mandatory minimum sentences.

Concerning the Nur ruling, I don't really agree with your comment in the National Post. I did not see the ruling as quite the endorsement of your mandatory minimum sentences as you did, but I agree that it also does not indicate that mandatory minimum sentences are illegal. I may be less of a fan of the decision than you.

I will now talk about Bill C-35 itself.

Have you met with Department of Justice officials since the Nur decision to look at the impact it could have, especially its obiter dictum on mandatory minimum sentences and the two criteria to be met? Have you asked the Justice Canada officials to consider that? If so, what did they say? How can the criterion set out in the Supreme Court decision be met with regard to a mandatory minimum sentence? It is also hybrid and should not be left to the discretion of the crown. How do you think the criterion can be met at both levels? If the punishment is not cruel and unusual, the second criterion is used. Here is a quote from the chief justice: ...the second question is whether the provision’s reasonably foreseeable applications would impose cruel and unusual punishment on other offenders

Have the officials answered those two questions?

[Peter MacKay, Conservative, Central Nova, NS]

Thank you, Mr. Chair.

I want to thank my distinguished colleague for asking that question, which is not a theoretical one. It's an important question for everyone and for all the bills we have introduced in Parliament.

I would say that in examining the Nur case, as my friend has said, we obviously look at the entire decision of the court, including the dissenting opinion, but what came from that decision, as she's alluded to, is that mandatory minimum penalties were in no way ruled out as an option for Criminal Code sanctions. They were, however, limited in the specific case based on the facts before the court that dealt with penalties around firearms.

I would suggest that some of the interesting dicta that came from that case also talked about the importance of not stretching credulity. That is to say, that the reasonable hypotheticals were viewed by some of the judges as not being, quite frankly, reasonable, according to some of those—

[Françoise Boivin, NDP, Gatineau, QC]

They were dissenting—

[Peter MacKay, Conservative, Central Nova, NS]

Those were dissenting—

[Françoise Boivin, NDP, Gatineau, QC]

I hope our Minister of Justice still believes that a majority of the court has ruled and that that is then the rule of the land on the issue. We can prefer the dissension all we want, but the rule of law right now stands with the majority. I'm being specific. I want some arguments. I want you to convince me that Bill C-35 would be okay with the Nur decision. That's what I'm asking. And did you ask your officials to review the legislation after the Nur decision?

[Peter MacKay, Conservative, Central Nova, NS]

Let me answer you specifically.

Yes, of course, officials at the Department of Justice always review these decisions. I review them. We look specifically at the entire decision and how that impacts existing legislation, on future legislation, including this bill that is before us.

To come back to this issue of the test of cruel and unusual punishment and gross disproportionality, I believe, and our officials believe, on balance, that based on the decision in the case involving Quanto that I referred to in my opening remarks, where the judge in that case actually handed down a sentence that was four times more than what we're discussing here as a mandatory minimum, in some ways we already have jurisprudence to look at as a touchstone as to both of those questions, both proportionality, taken in concert with other sentences that occurred at the same time.... And with the issue of cruel and unusual punishment, I would suggest again that that is very instructive and that we go through that test and analysis. The constitutionality, I believe, is sound and would support upholding this particular sentence.

[Françoise Boivin, NDP, Gatineau, QC]

You also touched on the wording of Bill C-35. In a sense, by saying without a “reasonable excuse”, doesn't that add to the argument, at that point in time, that those unforeseen or unforeseeable reasonable cases that could arise from a specific situation then would be corrected by the fact that it wouldn't fall in Bill C-35?

As well, why exclude, from the mandatory minimum sentence, the other type of animals that are included in the infraction? Are you making different classes of dogs and horses?

[Peter MacKay, Conservative, Central Nova, NS]

Yes, quite frankly, we are. This may be a question best posed to those who are using police animals and who will be appearing before this committee, but to my understanding, the rationale for this is the degree of harm, the degree of exposure, that animals would have in those instances that would justify or bring about a commensurate higher sentence.

Coming back to the question with regard to why we have proceeded with this hybrid type of offence, again, we believe there are facts and factual circumstances that very often arise that would justify a prosecutor, in conjunction with the police, deciding to proceed by way of indictment. That obviously involves more egregious circumstances, where there was a deliberate attempt to kill or injure the animal, as opposed to a circumstance that one could envision where the animal, while in pursuit of a person, or during a search and rescue, went after the wrong individual, for example, and the person, in fear for their life, used what they felt was proportionate force to protect themselves, and the animal was injured or killed. Those are circumstances that might result in the laying of a summary conviction offence that would not have these mandatory minimum penalties attached.

[The Chair, Conservative, Mike Wallace]

Thank you.

Our next questioner, from the Conservative Party, is Monsieur Goguen.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Thank you, Chair.

Thank you, Minister and officials, for testifying today.

Of course, we recognize the importance of this as another element in the protection of Canadian society. We know how animals, service animals and Canadian Forces' animals, play an important role in protecting Canadians.

Mr. Minister, we're wondering how exactly you feel the legislation will better protect law enforcement animals, service animals, and military animals. How does Quanto's law improve the existing laws? Could you focus on that, please?

[Peter MacKay, Conservative, Central Nova, NS]

I suspect that the most direct example I could point to, coming out of the Quanto case, is the profile that is placed, and that this legislation will underscore, on the value that these animals bring to their task, to their service, to our country. We included military animals, to which I can speak somewhat personally, having observed the use of military animals in Afghanistan, where they provided tremendous service at great risk. They are often used in the detection of explosives, IEDs. Many people will have seen them at airports, where they're detecting drugs and sometimes contraband material, including weapons.

These animals have, by design, assumed a certain amount of risk, and we want to protect them. I think you will hear very shortly from witnesses about the value, the financial value and investment, that comes with these service animals based on the training, the time that it takes. Not every animal, obviously, is designed for this type of work. Horses, for example, are also used very often for crowd control. They're used by the Royal Canadian Mounted Police. They're very often used in situations where they too can be in harm's way.

So it places these service animals at a higher threshold. It obviously has penalties attached in a way that is designed to deter individuals who might be inclined to harm them, to injure them, to kill them. For those reasons, we have encapsulated this in a bill that brings about mandatory penalties and in some cases fines; they're not necessarily mandatory penalties, depending on the circumstances.

I should also praise Costas Menegakis, who brought this bill forward as a private member. It was later incorporated into this bill that you see before us, presented by the government.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Thank you.

Minister, Madame Boivin focused a lot on the aspect of the mandatory minimum sentences. We know that in R. v. Nur the mandatory minimum sentences were found unconstitutional, because it was felt that the imposition was grossly disproportionate, I guess, to the gravity of the act. Yet they did, in that case, uphold the sentences, which were beyond the mandatory minimums. I note in the case of Quanto's law that the judge actually imposed 18 months. It's my sense that animal lovers, and Canadians by and large, would certainly be well accepting of a mandatory minimum sentence for the killing of an animal in the enforcement or execution of his duties.

Are you concerned about this law in any way being found anti-constitutional because of its disproportionate equality in relation to sentencing?

[Peter MacKay, Conservative, Central Nova, NS]

Thank you, Mr. Goguen.

As I just said in an exchange with Madame Boivin, this is, I think, a reflection of society's condemnation of those who would wilfully injure animals generally. The other obvious example that we see, which is encompassed here, is that those animals with specified duties that serve the public more broadly—the individuals who are suffering from a disability, those who use animals day to day—provide a tremendous societal benefit. To deliberately target, injure, harm, or kill an animal with those responsibilities, we think, deserves a commensurate punishment that puts emphasis on the need to protect them. That in fact is what we're doing here. We're attempting to put greater protections in place for those animals who are protecting society at large through their service.

I agree with your assessment. I think that Canadians generally would be very much in favour of this. I haven't really heard any rational reasons that this legislation wouldn't be welcomed, other than some discussion around the mandatary minimum penalties. Just to conclude your answer, the court, having already handed down a penalty that exceeds the mandatory minimum, even in an extreme circumstance where the dog Quanto was killed, I think, provides us a good example that it would in fact be upheld as constitutionally proportionate.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

When I think of the law enforcement animals or service animals and I reflect upon the amount of training that is involved in getting such an animal up to speed to be able to accomplish those important roles, there has to be a value to imposing that type of a mandatory minimum sentence just to protect the asset and the investment in these animals who do such a great job for society. Don't you agree, Minister?

[Peter MacKay, Conservative, Central Nova, NS]

I absolutely agree.

There is, as you mentioned, a tremendous amount of time and effort and investment involved in the training of these animals. I'm suspect that many of you have seen these animals in the rigorous training they go through. To suggest that we wouldn't want to reflect society's value of these animals, I think, would be wrong-headed. This legislation, I believe, will put greater emphasis and underscore the value that they provide us each and every day.

We expect in the future to see more use of animals for what I was describing earlier as animal therapy. They provide great comfort to soldiers who are suffering from post-traumatic stress. I saw a demonstration recently in Halifax by an organization called Paws Fur Thought, and a retired member of the armed forces named Medric Cousineau. You can see the impact these dogs are having on the lives of soldiers, police officers, and by bringing them to a better place, a safer place, it's helping with regard to their therapy and treatment. They have not lost a single person to suicide since they entered into this program, so there's tremendous value. I think we're going to see greater emphasis and use of animals in the future.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you.

Thank you for those questions and answers.

Our next questioner, from the Liberal party, is Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair.

Welcome, Mr. Minister.

You properly anticipated that we would be a little bit preoccupied with the constitutional aspects, and I appreciate your remarks with respect to the mandatory minimums and the discussion we've had to date on that.

I'd like to add another element as we talk about the constitutionality of the bill, and that is within the new proposed section 445.01, the creation of a defence of lawful excuse. I raise that with you, Minister, for the discussion or the prospect that this has the potential of imposing a reverse onus. Certainly, the courts have had something to say on reverse onus provisions infringing on paragraph 11(d) of the charter.

We've had the discussion around mandatory minimums. I'm asking you about the existence of this lawful excuse defence and the possibility that it infringes on paragraph 11(d).

My question is whether you have sought and obtained legal opinion with respect to the constitutionality of this bill and, in particular, the two areas that I've raised.

[Peter MacKay, Conservative, Central Nova, NS]

Thank you, Mr. Casey.

As with all legislation presented to the House of Commons or through the Senate, or in many cases even private members' bills, the Department of Justice routinely examines them for their constitutional compliance.

With regard to the specific question of whether the department believes, based on that constitutional analysis, that the bill is in compliance, the answer is yes. Do we have specific advice that touches on the subject of the reverse onus? I would say no—while it has been contemplated. This is part of the regular examination of bills that attempts, as a court would, to anticipate certain scenarios, certain factual evidence, that could and would be presented to a court. In regard to the reverse onus provisions here and charter compliance, we believe, again, on balance, that as written in this legislation, it would be found to comply with the charter.

I say that because the reasonable excuse presented here would be based on those factual scenarios of a person's attempting, essentially, to protect themselves, or being of the mistaken belief that the animal was going to use disproportionate force in either tracking them, holding them, or as is the case in some instances, where the police train the animal to do so, biting and holding the individual. If the person, for example—and I'm again doing what the courts often do, hypothesizing—had a panic attack, or the person had prior experience with an animal and as a result responded disproportionately, injuring the animal, we think that a court would properly consider that evidence in coming to the conclusion that they did use a reasonable excuse, that they didn't have the mental requisite, the mens rea necessary to convict a person for having harmed or killed the animal. All of those circumstances, as in many of these cases, would be based on the factual scenario presented to the court.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you.

In terms of the incidence of this problem, I've read that a police dog has been killed 10 times in the last 48 years, but I understand that the scope of this bill is larger than that. My question for you is around prevalence. I understand that the bill has been motivated by a specific incident in Edmonton, but can you give us a feel for the scope of the problem? Do you have statistics that would indicate how prevalent the crimes are that this bill seeks to address?

[Peter MacKay, Conservative, Central Nova, NS]

In short, I don't believe we have accurate statistics, because much of what we heard in both the drafting process and the consultation period was anecdotal. Many of the injuries that animals have suffered have often gone unreported. They wouldn't necessarily have resulted in a criminal prosecution, for example. In the case of Quanto, obviously, the facts were laid out very clearly before the court. It was well reported. I'm also aware of instances, one in particular, where a police horse was struck by a vehicle deliberately, resulting in catastrophic injury to the horse, and they had to put the horse down. We're also aware of some cases involving a person with a seeing-eye dog that was attacked. Of course, very often an animal's natural protective instincts will be to protect the person that they're with, and that animal was injured.

In short, Mr. Casey, there are well-documented cases that we're aware of. There are others that have been reported anecdotally. In the final analysis, what we attempt to do is create a higher threshold under the law that will protect these animals that have that added element of responsibility, that bring about that service component. That's what is being pulled out and set apart from the animal cruelty laws that already exist. That is the intent. It has been drafted specifically with that purpose in mind.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you.

Forgive me as I continue to try to find a body of evidence to support some of the decisions within the department. My next question is in the same vein.

You indicated that longer sentences will serve to have a general and specific deterrent effect, that this was your belief. Is there any evidence that you can point to that indicates that longer sentences do, in fact, have a deterrent effect?