Justice Committee on April 27th, 2015

[The Vice-Chair, NDP, Françoise Boivin]

We are resuming.

Thanks to the officials for being here with us to pass a great hour answering all of the brilliant questions that you will receive. Thank you, Mr. Zigayer and Ms. Morency.

Have you any opening comments to make? I thought not.

We will start the round of questioning with Madame Péclet.

Ms. Péclet, go ahead.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Good afternoon.

The minister answered questions about mandatory minimum sentences during the first hour. You probably expected to be asked about the same issue.

Did the department review the bill and the inclusion of mandatory minimum sentences in Bill C-35 with respect to the Supreme Court's new ruling in R. v. Nur? Do you think the bill complies with the Supreme Court's decision?

[Michael Zigayer, Senior Counsel, Criminal Law Policy Section, Department of Justice]

I think the minister answered your question well.

Of course we looked at the Supreme Court's recent decision regarding this legal issue. In summary, we think that the penalty set out in the bill will not be seen as cruel and unusual punishment. The minister brought up the ruling in the Quanto murder case a few times. The court imposed a 26-month sentence for several offences. The judge stated that 18 months of the sentence were imposed specifically for killing the animal. We could speculate that, in the absence of other offences, the judge might have imposed a sentence of more than 18 months for the animal's killing. The assumption can be made.

When you look at the notion of cruel and unusual punishment, a six-month minimum is not excessive, considering the sentences the courts have handed down in the past for similar offences.

In this case, we considered other situations and concluded that the bill's provision

would resist or survive a constitutional challenge.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

You held consultations and considered the case law. My honourable colleague Mr. Casey said there were some dozen cases over the past few years. What did the prosecutions consist of? If we focus only on animal cruelty and not on any other offences people were accused of, which parts or sections of the Criminal Code were used the most in the cases you considered? What sentences were imposed? We are talking about Quanto, but there are also other similar cases.

[Michael Zigayer]

Thank you for the question.

The only section of the Criminal Code that could be used to prosecute someone for killing a law enforcement animal, a police dog, was section 445.1, which covers cruelty to animals

That was the section used to prosecute Quanto's killer. That's pretty much all I can say on the matter.

The case law does not allow us to analyze previous cases because the nature or role of the killed or injured animal is not specified in section 445.1.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Since we are on the topic, let's discuss section 445.1. The major difference has to do with the use of the term “lawful excuse”. Section 445.1 uses “wilfully causes” or “wilfully permits to be caused unnecessary pain, suffering or injury to an animal or a bird”. Only “wilfully” is used and not “lawful excuse”. The wording is a bit different.

When you used the terms reasonable or lawful excuse during your consultations, which cases were brought up? Why did you use those specific terms?

[Michael Zigayer]

The best I can do is refer you to the Library of Parliament's analysis of the bill. Subsection 429(2) of the Criminal Code reads as follows:

No person shall be convicted of an offence under sections 430 to 446 where he proves that he acted with legal justification or excuse and with colour of right.

In the bill, that new offence is covered in the provisions I just mentioned. Consequently, the provision can be be used by the defence in relation to the new offence mentioned in the bill.

[The Vice-Chair, NDP, Françoise Boivin]

You are out of time, Ms. Péclet.

I will now go to the Conservative members of the committee. Mr. Calkins, go ahead.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you, Madam Chair. I want to thank the officials for remaining behind here. If you'll indulge me for a minute, I'd like to get on the record some of the things that the minister brought up when he was here. When he brought up the animals that were used to treat the soldiers with PTSD, I thought it was very appropriate given the timing. In my riding I'm very lucky to have Can Praxis, an organization that uses horses to treat soldiers with PTSD. It's just like it is with dogs: you can't fool a horse when you're having relational issues or other kinds of stressors in your life. If you ride a horse—and I spend a lot of time on horseback—it can tell when things are right and when things aren't going well.

So I certainly appreciate the value of service animals, whether it's in service to our veterans or in service to our law enforcement personnel.

For a little while in my career I was the ranger in charge of Red Lodge Provincial Park in Alberta, directly west of the RCMP dog training facility, south of Innisfail, between Innisfail and Bowden. I spent many a day there, especially on the weekdays in-between, particularly in May and June when there weren't a lot of campers at the provincial park. The RCMP staff would come out there with their training dogs and use that park and facility as part of their training grounds for those canine units, and like Mr. Wilks I made darn sure when I was out there that I had the right equipment on my arm, and made sure I led with that when the dog was coming.

I also had similar experiences when I worked as a national park warden in Jasper National Park, where we used dogs to detect potential poaching and various other kinds of potential offences that wouldn't otherwise be easily detected by human beings.

Here is my question for the officials. When you look at the bill, it is very straightforward but doesn't give us a whole lot of insight insofar as the people who might be watching or going over this debate, especially when it comes to Canada Border Services Agency, are concerned. I think everybody who uses an airport or has gone to a border crossing understands and sometimes sees dogs there.

Can you tell us something about what these service animals, what these dogs, have been able to do to help prevent contraband from coming into Canada?

[Michael Zigayer]

I suppose I'll start with Canada Border Services animals. We've seen them at the airports. We see them sometimes on television. They're walking past passengers and past baggage. I can tell you that Canada Border Services Agency has a detector dog service, and as I understand it there are about 53 detector dog service teams. That would be the operator and the animal together. They serve to facilitate and expedite the inspection of goods coming into the country, because you can imagine that it might be a lot more labour intensive if you didn't have them screening and using their God-given gift of being able to sniff, although they are trained. It does take specific training for them to be able to detect explosives or certain types of drugs.

With regard to police dogs—and now I'll mostly make reference to the RCMP— they have what we understand are 157 dog teams across the country. As as the Minister was saying, they are involved in all types of activities, including VIP protection, crowd control—and, as you mentioned, horses are used in that connection as well. If I can just step away and talk about horses for a moment, when mounted officers are in a crowd or there's a crowd situation.... Suppose it's Canada Day, it's not even a demonstration against something, but a happy occasion, and someone has a heart attack. If there's a mounted officer, the people on the ground can see the officer. He's higher up. He's more visible. Also, in the reverse situation, a mounted officer can perhaps see something happening.

So they really are teams and are really useful in law enforcement. What distinguishes these animals from all the other animals is the important role they play in the administration of justice and in assisting the police not only to enforce the law but also in helping people to obtain medical treatment or whatever.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

I appreciate that, as somebody who has spent a lot of time on horseback. That was my job. I was a national park warden; actually, I was a back country warden. I spent hours on that horse and I still do in my own spare time when I go hunting or camping in the Rocky Mountains. I'm lucky to be from Alberta and have those opportunities.

I understand the bond that's created between a master—if you want to call it that—and the service animal, whether it's a horse for the very reasons that you highlighted, or with a dog.

There have been a lot of questions and concerns brought up about some of the issues around mandatory minimum sentences and some of the other provisions that we have here. One of the questions that I have a bit of a technical concern with—even though I agree totally in principle with the legislation—is that we've seen animals being used in space exploration and in a lot of different capacities. Some of those reasons might include the rehabilitation of the animal, but the other reason might simply be that the animal is being used in place of a human being as the initial point of contact, or there is a safety consideration or concern.

I think the issue is twofold, especially when it comes to service dogs. One, they can provide the services more quickly, efficiently, and more accurately, like you rightly said. Two, they're also sometimes sent into situations where it might not be safe for an officer to go in initially, or it might be too cumbersome. I mean a foot race between two human beings takes a lot longer to resolve than a foot race between a German Shepherd and a human being, for example.

When we put these provisions in place, which I'm sure will be passed, they will confer these animals with a certain level of protection above and beyond other animals, and rightly so for the risks they are taking under going these particular activities.

I'm wondering if there are other countries that we're aware of or other jurisdictions within Canada at the provincial level that may already offer certain protections to service animals?

[The Vice-Chair, NDP, Françoise Boivin]

Mr. Calkins, you took your time and his time, but I'll give you 30 seconds to answer. I'm so glad to say this to somebody.

[Michael Zigayer]

Yes, other jurisdictions have specific laws similar to what is proposed in Bill C-35, to create a specific offence for the killing or the injuring of a law enforcement animal, and even in some cases with regard to service animals.

[The Vice-Chair, NDP, Françoise Boivin]

Mr. Casey, the floor is yours.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Madame Chair.

Mr. Zigayer? Is that close?

[Michael Zigayer]

It's perfect.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you.

I want to continue the conversation you started with Ms. Péclet with regard to subsection 429(2) of the code.

You pointed out that subsection 429(2) provides a defence and that the new section also provides a defence. My question is how the two fit together.

If we look at what's in the code now, 429.2 provides a defence where the accused proves that he acted with legal justification, or excuse, and with colour of right. This act amends the code to insert the words “willfully and without lawful excuse”.

My question is, do the new words that we are adding into the code broaden, limit, or simply repeat the legal defence in law that exists?

[Michael Zigayer]

I think the best way to answer that is to say that if ever this provision comes up under a prosecution, the court will consider or the accused will advance whatever defence against the charge they believe they can.

The key element, as the minister was saying, is the willfulness or the intent to commit the offence. The defence without lawful excuse, essentially the reference to subsection 429(2), is to indicate that it's not a new law. That requirement or that ability of the accused to demonstrate that he had some lawful excuse for doing the act has been with us for some time.

I was trying to think of an example in which this might be applicable in conjunction with an assault on a law enforcement animal. I came up with one that may or may not be a reasonable hypothetical, but I'll leave it with you.

If one had a situation in which a law enforcement animal was used more as a weapon by the police officer in an inappropriate fashion to attack an individual, and let's add to that the fact that it was not a lawful arrest that was being attempted, then I would think that person would have the ability to defend himself—it would be self defence—against this animal, against this assault that was being perpetrated with the animal. At trial, he would have a reasonable excuse for doing that if he was actually charged with having wounded or injured the law enforcement animal.

[Sean Casey, Liberal, Charlottetown, PE]

I guess my question is whether the words that are being added to the code add anything given that subsection 429(2) already exists.

In the example you just gave, presumably subsection 429(2) would provide a complete defence for the accused in those circumstances.

[Michael Zigayer]

There might be other provisions in the code that one could rely on, for example, section 34 perhaps. In any event, they are consistent. I wouldn't say they were inconsistent.

[Sean Casey, Liberal, Charlottetown, PE]

I guess my question is why we need them. Let me frame it another way.

I presume that the two witnesses I'm speaking to here were either the principal drafters of the bill or the experts within the department on the bill. What was the legislative intent? What was the intent in adding those words given the existence of section 429. I'm sorry if I'm repeating myself, but was the intention to make the defence of lawful excuse tighter or broader, or did you have any intent in terms of the defence that already exists?

[Michael Zigayer]

I guess I would say there wasn't any specific intent to derogate from section 429. Perhaps one could say one would look at the new provision and the focus of the legal discussion, the legal argument, and determine whether or not there was a defence there rather than having reference to section 429.

[Sean Casey, Liberal, Charlottetown, PE]

Ms. Morency, did you want to add to that?

[Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice]

I'm just going to add that Bill C-35 is proposing a very specific, narrow set of amendments to address a very specific type of issue. I think the comment you're raising has maybe more to do with the whole area of the provisions, because Bill C-35 is just maintaining a similar approach to what's there right now. The reference to subsection 429(2) applies to all of those other provisions, whereas Bill C-35 is only going in to do something very narrow.

Perhaps the issue you're raising is why you have it in both places. It's in both places right now with the existing sections 445 and 429, and Bill C-35 is just maintaining the same approach. There's no inconsistency or enlarging of the approach taken here.

[Sean Casey, Liberal, Charlottetown, PE]

Well, if it doesn't enlarge it and doesn't limit it, why is it there? Why can't we just rely back to the words that are already in it? I assume by putting those words in there they meant something.