Evidence of meeting #74 for Justice and Human Rights in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendment.
A recording is available from Parliament.
Conservative
Kyle Seeback Conservative Brampton West, ON
Yes. Subsection 429(2) says that it applies from sections 430 to 446.
Senior Counsel, Criminal Law Policy Section, Department of Justice
Yes. That includes that existing offence in subsection 445(1) which is the offence of cruelty to animals other than cattle. That is the one that was used to prosecute the killer of Quanto in the first place.
Conservative
Kyle Seeback Conservative Brampton West, ON
Right. But my question is, are there other areas in the Criminal Code where you have the general section like that and then, within a specific offence, you have the exact same exculpatory wording in other sections of the code? If so, have the courts had any difficulty seeing those two sections and therefore interpreting them? Are you aware of any?
Senior Counsel, Criminal Law Policy Section, Department of Justice
I'm not aware.
Conservative
Liberal
Sean Casey Liberal Charlottetown, PE
Thank you, Mr. Chair.
In response to Mr. Zigayer's comments and Mr. Calkins' comments with respect to the word “wilful” within the statute, I wish to remind all of you of the testimony we heard from the Canadian Federation of Humane Societies, which was that the major flaw in animal cruelty laws right now is the presence of the word “wilful” beside the word “negligence”. It's because of that word “wilful” that there's so much difficulty in securing convictions, yet here we are, about to vote down an amendment to remove that word.
NDP
Françoise Boivin NDP Gatineau, QC
Subsection 429(2) does not use the same terminology at all. There is a different shade of meaning between “where he proves that he acted with legal justification or excuse and with colour of right” and “wilfully and without lawful excuse”.
I have just figured out what my colleague Mr. Casey meant in his amendment. My understanding is that he wants to respond to the testimony and make Bill C-35 stricter. In other words, he does not open the door to any kinds of excuses. If that happens, the person is guilty. I think I have understood that aspect, but I would still like to go back to the difference in meaning, because there is one.
A main section says that the entire clause needs to be interpreted in a certain way, but the same terminology has not been used. Does that mean that the words “wilfully and without lawful excuse” also suggest a lesser burden? To me, that wording seems a little softer and more gentle than “where he proves that he acted with legal justification or excuse and with colour of right”. In the latter, the burden is a little heavier.
Senior Counsel, Criminal Law Policy Section, Department of Justice
First, if I may, just to respond to Mr. Casey, we don't want to have a debate going back and forth, I regret that I wasn't able to attend the hearing when that witness made those comments, but I don't see the word “negligence” in the proposed offence.
Senior Counsel, Criminal Law Policy Section, Department of Justice
Yes, but what we're looking at here is a specific new offence that is carefully drawn. It imports certain parts of an existing offence for consistency's sake.
Madam Boivin, I hope I understood your question. If not, you'll correct me. The object of the language isn't to make it a softer offence. The purpose of including the language—wilful and without lawful excuse—is to assist the courts in applying the law. We are defining for the court the mens rea that is necessary to accompany the actus reus.
Conservative
The Chair Conservative Mike Wallace
That's lovely Latin.
Our next and final comments on this amendment are from Mr. Goguen.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
To Mr. Casey's comment, yes, we're very mindful of the concern of animal cruelty, but as Mr. Zigayer has just said, this is a specific offence. It deals with enforcement animals. One can easily see that a reaction perhaps would be unexpected if a dog is bearing down on an accused, so therefore there's the necessity of having a wilful intent to harm that animal when the accused is in a situation of complete panic.
Conservative
The Chair Conservative Mike Wallace
I appreciate that.
The amendment has been moved by Mr. Casey. I think it's been well discussed by the committee. All those in favour of LIB-1?
(Amendment negatived [See Minutes of Proceedings])
PV-3 is removed because Ms. May is not here, but we have PV-4.
Mr. Hyer, the floor is yours.
Green
Bruce Hyer Green Thunder Bay—Superior North, ON
Thank you, Mr. Chair.
This amendment removes the words “if a law enforcement animal is killed in the commission of the offence, to a minimum punishment of imprisonment for a term of six months; or”. The intention of our amendment is to remove the mandatory minimum sentence that this bill introduced. The Green Party is against mandatory minimums on principle and in practice. They subvert judicial discretion, they lead to crowded prisons, and they lead to skyrocketing costs that are inevitably devolved to the cash-strapped provinces. As the Canadian Bar Association has noted quite extensively, they're neither fair nor are they effective judicial policy.
According to the Canadian Bar Association's previous analysis of Bill C-26, the tougher penalties for child predators act, mandatory minimums do not advance the goal of deterrence according to very fair international social science research on the matter. The most dangerous or horrific offenders are already subject to stiff sentences because of the nature of their crimes, and mandatory minimums disproportionately impact minority groups, particularly aboriginal communities, which are already overrepresented in the criminal justice system. I have certainly observed in my own riding of Thunder Bay—Superior North how even now aboriginals are very seriously punished and overrepresented in serving jail terms.
Thank you, Mr. Chair.
Conservative
The Chair Conservative Mike Wallace
Thank you, Mr. Hyer, for that description of your amendment.
Mr. Goguen.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
As Mr. Hyer has pointed out, his amendment would have the effect of removing the mandatory minimum term of imprisonment for the killing of a law enforcement animal, and of course the intent of our legislation is to create such a mandatory minimum term of imprisonment. It's the government's position that a mandatory minimum penalty under Bill C-35 would not result in the imposition of a grossly disproportionate sentence which would be found to be cruel and unusual punishment under the charter.
We note that the Supreme Court of Canada has set a high bar for what constitutes cruel and unusual punishment under the charter, and the government believes that where a law enforcement animal is killed while assisting a law enforcement officer, the offence prosecuted is by indictment a mandatory minimum sentence of six months and is a reasonable and proportionate means of denouncing such an offence, and that's one of the intents of courts of law.
It's worth noting that Quanto's killer was sentenced for a total of 26 months, of which 18 months were attributed to the killing of the animal, so we'll be opposed to the amendment, sir.
NDP
Françoise Boivin NDP Gatineau, QC
I am not convinced that the mandatory minimum sentences have any purpose whatsoever, but they have been in the Criminal Code for a while now, and we will not solve that problem today.
As Mr. Goguen just said, ever since the Supreme Court of Canada decision in Nur, we have learned a little more about mandatory minimum sentences. Even though most of the court justices are not enthusiastic about that method, there is still a criterion to meet. Based on what the officials told us the last time, it seems that the criteria are met. At any rate, the case law shows, as Mr. Goguen just said, that the six-month sentence is more of a sham than anything else, because not a lot of people will receive such a sentence. That often makes me wonder why they have included it.
It meets the criteria, but I don't feel that the legislation is good in that sense. In relation to cruel and unusual punishment, I don't think this would lead to the same outcome as in Nur.
I understand where you are coming from and we are in agreement on that.
Conservative
The Chair Conservative Mike Wallace
Is there anything further to the amendment? No? All those in favour of amendment PV-4?
(Amendment negatived [See Minutes of Proceedings])
Now we're on to clause 3 unamended.
(Clause 3 agreed to)
(Clause 4 agreed to)
Shall the short title carry?