Justice Committee on Feb. 5th, 2019

[The Chair, Liberal, Anthony Housefather]

We will now resume our meeting of the Standing Committee on Justice and Human Rights and our study of Bill C-84.

We have a little bit of an unusual situation where both members of our panel are here by video conference today.

We are joined by Ms. Josie Candito, as an individual, from Toronto, Ontario, and by Professor Peter Sankoff, a professor of law and associate dean at the University of Alberta, from Edmonton.

Welcome to both of you. You both have 10 minutes for your opening statements, and then we'll go to questions from the panel.

We will start with Ms. Candito.

[Josie Candito, Animal Rights Activist, As an Individual]

First, I want to thank our dedicated MP for Parkdale—High Park, Arif Virani, for allowing me this opportunity to speak to all of you today.

Presently, many animal rights laws fall under individual provinces. Unfortunately, this often leaves animals unprotected or protected more in one province than another. In some cases, the animals may be transported between provinces, falling under different legislation in each province. Animal cruelty is wrong, no matter which province it occurs in, and standards for animal rights and protections should be universal across our country. I have some proposals for policy changes on the federal level.

First, animals must be recognized as beings that can feel pain, and animal cruelty crimes should be moved from the property section of the Criminal Code. It is important to note that recognizing animals as sentient beings is not reinventing the wheel. Quebec already recognizes animals in this fashion, and the U.K. has a plan to enact this type of legislation.

To include this language in federal animal rights protection legislation, to me, would be reasonable. Animal cruelty laws currently fall under the property section of the Criminal Code. As animals are sentient beings, this offence should be moved to a new section titled “Offences against animals” in the Criminal Code. Animals are not inanimate property like a car or a watch. The change would recognize animals as thinking, feeling beings and would recognize that it would be wrong to harm them, as opposed to recognizing that it is wrong to damage someone's property. These animals are our families, our fur children, our best friends. They have emotions, feelings and unique personalities. We have the bare minimum guidelines for food, water and shelter. A dog tied down outside on a piece of plywood is acceptable by law at this time.

Second, the language of animal cruelty law must be strengthened to close loopholes that allow abusers to escape penalties. In the current Criminal Code, there are loopholes that allow certain kinds of animal abusers to escape punishment. Many of these loopholes could be closed with amendments to the legislation, as we are doing with this bill by closing loopholes against animal fighting and by providing a definition of bestiality and brutal and vicious killing. We could change the language in current legislation from “wilful neglect” to “gross negligence”, therefore making the act of neglect punishable regardless of whether it was premeditated.

Bill C-84 has been tabled and, hopefully, the bill will pass soon.

It is important to add a clause to ban animal ownership if one is convicted of animal cruelty more than once. Any person who has harmed an animal more than once has done so through gross negligence or wilful malice and should never be allowed to own an animal again. Imagine if your dog were stolen, stabbed with a screwdriver and dragged by a tow-chain, and the accused got probation. At the moment, statistics show that jail time is rarely served. Most of the time, the accused just gets probation.

Third, federal animal transportation regulations should be amended. Stiffer laws are required to ensure the safe transportation of animals, free from dehydration due to heat stress and from overcrowding and/or burdening animals in undersized transport trailers.

Fourth, there should be a ban on the sale of puppies by pet shops and third party commercial dealers. Puppies must be available only from rescue centres or reputable dealers where the puppies are always seen with their real mothers. Reputable breeders should be held to high breeding standards and should be licensed, monitored and registered. Restricting the sale of puppies encourages more people to rescue older dogs.

Last August, the U.K. passed Lucy's law. I believe such a law is attainable here. The U.K. has set an example and hopefully Canada will follow.

Fifth, a registered animal offenders list should be created. This list would not need to be publicly searchable. It has been proven that people who commit animal abuse often go on to commit domestic violence and other violent assaults. There is a link between animal, domestic and child abuse. Creating a registry of animal abusers ensures that law enforcement can identify a pattern of abuse earlier. Many states in the U.S. have already enacted such a list, which lessens the burden in Canada to reinvent the wheel. A registry can act as a deterrent. If potential animal abusers know that there may be a permanent searchable record, that may deter them from this abuse.

A registry of animal offenders would also ensure greater protection of animals. Those adopting an animal, those providing care to animals and those providing animal services would be asked to sign affidavits to swear they are not on the list. False statements could be punishable by law.

We know that the Liberal government stands against animal abuse and against abuse of women. I hope that it will be the party of history, with everybody working together in a non-partisan way to continue to make these changes in our law.

Tail docking, ear cropping, declawing of animals and mutilations that are not medically beneficial should be illegal and punishable under the federal law. Obviously, spaying and neutering would be beneficial.

The Canadian Veterinary Medical Association has long opposed these procedures as they are unnecessary and put animals at increased risk of damage, infection, pain and distress. There is no reason why any of these cosmetic procedures should be allowed anywhere in Canada. Some provinces have already enacted bans on these sorts of procedures, in particular, B.C. and Quebec. A ban on unethical and unnecessary mutilation should be country-wide.

Our animal anti-cruelty l laws are outdated. It has been 127 years since these laws have been properly updated. Obviously, views were different then from what they are right now. “To date, politicians have utterly failed to update our laws”. That's a quote from the February 15, 2018 edition of The Globe and Mail.

I personally rescued a dog named Charlie, but that day, he rescued me, and I vowed then to keep going and advocate for updated laws to protect our animals. It is a very personal and passionate thing that I believe. We need to be the animals' voices.

I hope that all the parties can come together, and that some changes can be made. This new law, I believe, will take baby steps towards where we need to go. We still have a lot of work to do.

I'll just leave you with a quote that I love, “The greatness of a nation and its moral progress can be judged by the way its animals are treated.”

Thank you all for listening.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We will now move to Professor Sankoff.

[Professor Peter Sankoff, Professor, Faculty of Law, University of Alberta, As an Individual]

Thank you very much.

On a personal note, I just wanted to say it's nice to see another alumnus of Dollard-des-Ormeaux doing such important work for the country. Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

[Prof. Peter Sankoff]

I'm very honoured to be here speaking to this bill. I appeared before the Supreme Court in the D.L.W. case that prompted this particular piece of legislation, and I've given a lot of thought to this particular issue as a result.

First of all, I want to congratulate members of Parliament for taking this on. I understood that the Minister of Justice, on introduction of the bill, said it was done in order to protect animals from harm. I think that's a wonderful change from what we heard of the bill's original origin when it was spoken about in the Supreme Court.

I did want to say, echoing the last speaker, that while this bill is an important piece of the puzzle, it's really not enough. I have done extensive study of animal cruelty laws around the world, and I usually say without much reservation that our federal animal cruelty laws are amongst the very worst in the western world. We are one of the few countries in the western world, and especially in the Commonwealth, that have not made substantial reform of our animal cruelty laws within the last decade.

The U.K., Australia, New Zealand and other countries have made radical studies and attempts to clarify problems. I can tell you that as someone on the ground working with these issues, our animal cruelty laws cause real problems for prosecutors, investigators and the courts. That is a direct result of Parliament's failure to reform them, and to make sense of some of the provisions that simply do not work. I would ask this committee to look at doing those things in future.

I want to talk briefly about why I believe this bill fits very nicely with the way in which the criminal law is evolving, and then perhaps comment on one or two of its shortcomings.

It is good that this is a shift, that we are changing bestiality from what used to be called a morality offence. The reason is that there are very few pure morality offences left in the Criminal Code and those that are left are very difficult to adjudicate for the courts. Finding the range of conduct that is said to fall within this particular wrongful morality is very complex and the courts don't like it.

The Supreme Court of Canada has indicated a clear preference [Technical difficulty—Editor] morality. That's what this change to bestiality is doing, in that it's assessing the harm against animals that takes place when you involve them in a sexual offence. They are vulnerable beings that do not have the ability to consent. It does so by recognizing that harm does not have to mean actual harm. That's an important point to look at when we look at what this bill does. Certain defenders of the status quo have recognized, and I think they have recognized correctly, that not every sexual act involving an animal causes actual harm. I think that is undoubtedly true. I mean harm to the animal when you're talking about the harms in question.

I wish to point out to the committee that the fact that certain sexual acts involving animals may or may not cause harm to the animal doesn't matter. I want to emphasize that our modern view of criminal law recognizes that there are times when we are allowed to criminalize the risk of harm. That's what I think this bill actually does. Where the risk is high enough, and the benefit of the act of question is low enough, it is acceptable to criminalize even if actual harm does not occur.

A good example that matches with what this bill is going to do involves polygamy. It's recognized in the court case that looked at whether or not polygamy was constitutional, that in an ideal world, it is possible to have polygamous marriages that in and of themselves don't cause harm. However, the court in the reference recognized that the risks of the act of polygamy across the board are high enough, and the people involved are vulnerable enough, that the criminal law is entitled to step in and say, “This act itself needs to be banned in all instances, even if it doesn't cause harm in every single situation.”

This is the exact same thing with bestiality. Not every sexual act involving an animal is going to cause harm to the animal, but given the special vulnerability of animals, the private nature of this abuse, and most importantly, the fact that animals will never be able to testify or relate the actual harm or conduct that they suffered, the risks are simply too high, given that the activity provides so little benefit to Canadian citizens.

Finally, evidence of psychological harm, which I believe has been shown through studies looking at bestiality, are very difficult to substantiate, given the burden of proof and the difficulty of obtaining sufficient evidence.

The idea that you could leave bestiality as a harm-based offence and only prosecute in instances of harm I believe is a flawed way of looking at this, given the nature of the conduct in question and the difficulties involved with prosecuting offences involving animals. Animals are the most vulnerable beings in our care and in our society. Given the lack of benefit and the message that is sent if we allow continued sexual conduct involving those that can never consent and cannot resist, given the power imbalances between humans and animals, a complete ban not only accords with our developing view of criminal law theory, but it also makes good sense.

I'm happy to take any criminal law related questions involving this bill, but let me just mention one concern that I have. It involves the way bestiality is separated from the other animal protection-based offences of the code. It's very clear that bestiality simpliciter—and I define that specifically as being separated from bestiality involving the presence of children—has never been viewed as a sexual offence even though it's contained in the sexual offences section of the code.

I say that because if you look at section 161 of the Criminal Code, which involves prohibition orders and special orders against sex offenders, you see that you cannot even order a ban involving sex offenders on someone who has committed bestiality simpliciter. The reason for this is that the person is not a sex offender in the ordinary way that we think of sex offenders, so you don't need to keep him away, necessarily, from children and other beings, or at least that is what Parliament has said in the past when it enacted section 161. I think that Parliament today is correct in recognizing that bestiality simpliciter is mostly about animals and about protecting them, and in order for that to make sense, it needs to be linked to the punishment sections that involve repeat offenders involving animals.

I think it is a large mistake not to link this particular offence to the prohibition order section of the code in section 447.1, which allows the court to impose prohibition orders on those who commit bestiality against animals. It seems to me that those who abuse the trust of animals through sexual exploitation simply should not have access to them any further, and whether that is done through a prohibition order, it's really the most effective way to complete that type of sentence upon an offender.

I wish to thank you very much for having me come before the committee today. I'm happy to take any questions that I can assist with.

[The Chair, Liberal, Anthony Housefather]

Thank you so much for that.

Both testimonies were very helpful and are very much appreciated.

We will now go to questions.

Mr. Barrett.

[Michael Barrett, Leeds—Grenville—Thousand Islands and Rideau Lakes, CPC]

Thanks very much, Mr. Chair.

We've heard this morning that there seems to be a consensus around supporting a proposed prohibition on ownership of animals for individuals convicted of bestiality offences, recognizing that there might be an opportunity to remove the requirement for the destruction of animals seized in fighting investigations.

Professor Sankoff, my question is for you. It goes back to my questions for the minister when he was here last week. It's just for some clarification around the common-law application of the term “baiting”. My interest in that is so as to clarify that the interpretation or application of that pertains only to animal fighting and would not be used to expand to and affect responsible and legal hunting and angling.

[Prof. Peter Sankoff]

In terms of my view on that section, where you're referring to paragraph 445.1(1)(b) of the code and the amendment that's being proposed to it, my understanding is that paragraph 445.1(1)(b) was enacted originally to deal with the historical offences of bull-baiting and bear-baiting, which were the original terms.

[Michael Barrett]

That's right.

[Prof. Peter Sankoff]

There is a very strong principle at common law which suggests that Parliament is assumed to have knowledge of the common law when it's enacting particular language.

First of all, my view is that re-enacting these particular words would not send a signal that you were doing anything different to the established meaning of those words because, first of all, there is no amendment to those particular words in what you are proposing in Bill C-84. Obviously it is impossible to ever predict with 100% certainty what any court will do, but I would be very comfortable in saying that the term “baiting” was enacted under the understanding that it was designed to deal with bear-baiting and bull-baiting, and I would be very surprised to see the court take a more expansive view of that wording given its historical placement.

[Michael Barrett]

Okay. Thanks very much.

[The Chair, Liberal, Anthony Housefather]

Mr. Cooper.

[Michael Cooper]

I will direct my question to you, Professor Sankoff.

Perhaps you could address the issue of amending section 160 of the Criminal Code and the need to close a gap that currently exists.

I characterized it when the minister appeared before the committee as a loophole. The minister said he wouldn't necessarily accept it as a loophole, citing other sections of the Criminal Code that might be applicable, especially in cases involving children, including sexual interference and sexual exploitation.

It's true that those particular sections encompass sexual contact with children, including touching with an object, but I would submit that the word “object” doesn't seem to be necessarily applicable in terms of referring to animals as objects. Certainly, the ordinary dictionary definition of object refers to inanimate things.

I was wondering if you could comment on the need for this loophole to be closed and how that relates to other sections of the Criminal Code.

[Prof. Peter Sankoff]

To echo what I said earlier, my belief is that the loophole needs to be closed. As a part-time defence lawyer, I struggle with the term “loophole”, but I will say that the gap in the legislation needs to be closed, mainly for the reason I expressed earlier, that being that right now the problem is that touching an animal in a sexual way is simply not considered within the scope of bestiality.

What I think the minister was referring to is in sections 151 and 152. I take your point that it might be possible in some of those situations where you're involving a child...I think it's conceivable that you could refer to an animal as an object, but I do share your concern that it is not the best way to address this problem. I think it's possible that it would not be considered an object, and it would be left up to the court to interpret in a particular situation whether or not the animal did qualify within the context of section 151.

If you amend the bill as you're proposing to do here under section 160, I think you close any of that ambiguity. There is no room going forward, because it would be clear that any situation involving bestiality, which would be any sexual touching with an animal, would automatically fall within the revamped section 160.

I do take your point. I agree, I think with both you and the minister, that it is possible that section 151 could cover this conduct, but it would only cover this conduct where a child was involved. It would obviously not cover a situation where the animal and the offender were together alone, and it might not even do so, depending upon how a court viewed the interpretation of “object”. Closing this gap is I think desirable for both situations.

[The Chair, Liberal, Anthony Housefather]

Mr. Virani.

[Arif Virani, Parkdale—High Park, Lib.]

Thank you, Mr. Chair.

I want to direct some questions to Ms. Candito.

Josie, welcome to the committee.

Josie, I've known you for a long time, obviously, as a business owner in the western part of Toronto, in Parkdale—High Park. I've known you as an animal rights advocate and, to be frank, as someone who helps educate me and others in the community about animal rights and the importance of, as you've just said, speaking up for those who are voiceless, the creatures that are voiceless in Canada. I've also heard you speak about—it came out in testimony earlier today—those who start with animal abuse and the link leading to child abuse, abuse of women and even in some instances committing acts such as murder.

Thank you for that advocacy.

You've also developed a strong and robust network of other animal rights advocates in the Toronto area and beyond. We've seen your brief, and you've walked us through it.

First of all, tell me about some of the reception that you've had and heard of among the animal rights community about this bill, and the need to strengthen the laws that relate to bestiality and to bans on animal fighting. How is that piece of this legislation being received?

[Josie Candito]

Everybody is excited that this is a start. It's something where we look at each other and can't believe that it's still not there, but we're excited that it's a step towards protection. People are saying that these are just things that should be there and should have been there. We're so in awe that we're still talking about this and that it wasn't done years ago. We're just glad that it's being dealt with, and then, hopefully, we can proceed, because we're very excited about the rest of it. We can keep going and catch up to the rest of the world.

[Arif Virani]

Let me pick up on that, because I think it's an important point.

You've outlined a number of things. You've raised about seven different points. Some are directly under federal jurisdiction and relate to the Criminal Code. Some relate to other aspects of federal regulations, such as transport. Others relate to the commercial sale of animals, such as puppy sales, etc.

I'll put to you something that came up earlier. I'm not sure if you were able to listen in on the first hour of discussions, but Nate Erskine-Smith, who is sitting right next to me, was the author of Bill C-246. He talked about whether there's an appetite out there to go in a broader direction. There are so many different things out there. We have things before Parliament about cetaceans—dolphins and whales—things like shark finning and bans on the cosmetic testing on animals. There are a lot of ideas out there.

Would it make sense to you to aggregate those ideas in terms of having some sort of broader discussion, consultation and analysis about how the federal government can lead a discussion on animal rights and take it forward in a more comprehensive way?

[Josie Candito]

A million per cent, because we have to move forward. These are great and they need to be dealt with, these few points that this bill has, but all the rest of them.... There are a million other points. It's a big project. To me, this is just baby steps, like I said before. There are so many more points. There are so many things we have to do.

Also, I hope everybody from the different parties on this committee go back to their groups and tell each other that everyone needs to work together. This is something that everybody should want, not just one party.

I understand that there's a political side to protecting the fishing and agriculture. I understand all of that. Most people are not.... We understand that this part needs to stay, but at the same time, we have to find a way to protect the animals—all sorts of them. It doesn't matter if it's puppy selling or the cosmetics world. Whatever world it is, I think we have not even started. There's a huge project ahead and a lot of work.

[Arif Virani]

With my last question, I want to ask you about your experience in the west end part of Toronto in aggregating people who want to discuss these issues. I remember very clearly your Woofest event. I remember seeing the posters about it and wondering what it was all about. It was a fun event for me and my kids, but it was also an event where you actually advocated for animal causes and animal rescue. You raised awareness. The number of people there was tremendous. It really congregated a number of people.

Do you think that's an anomaly or do you think people are much more concerned about animal rights than we presume? If they are concerned about it, why are they concerned about it? What are you tapping into with events like Woofest?

[Josie Candito]

It's so big. When I started this, everybody was saying, “How are you even going to come close to getting anything done?” Everybody feels that it's like climbing Mount Everest. How do you get anywhere? Unless we attack it and unless we understand that there are certain provinces, areas and things that we need to respect: where the country came from and that there is agriculture and an economy there.... We have to balance out the economy with the basic stuff that's not being taken care of. There has to be an understanding. We can't say that everybody has to stop eating meat. That's not going to fly. Then everything gets stopped. That's why the last bill didn't work: because everybody in agriculture and on the economy side were like, “Hey, no way.” That was not going to fly for their constituents.

We need to balance it out and make everybody understand that, no, we're not going to take away their economy, but we also need to make sure that the animals are treated a little more humanely. Also, we need to take care of the other side of it: when you buy a puppy, when you take care of a puppy, and when you're hurting a puppy, preventing you from getting an animal and doing all these laws.... It needs to be tackled in areas. That's where these amazing lawyers who know their stuff inside out, with every bill and every law, can now come together, and all these groups can come together. We can make a difference and get this moving forward.

I think we're 25 years behind where we're supposed to be. You have to tackle it. It has to get done.

[Arif Virani]

Thank you for your advocacy, Josie, and thank you for being here.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thank you very much.

I'd like to continue with you, Ms. Candito, if I may.

You made an interesting suggestion in your remarks about a registry of animal abusers. You pointed out that this is the case in some American states. We, of course, have heard from Professor Sankoff, who I'll talk to in a moment. He talks about this being a bill mostly about the animals themselves and their rights, if I can call it that. The idea of a registry of animal abusers is something that you called for.

I'd like you to speak a little bit more about why you think that would have merit.