Mr. Speaker, I am pleased to have this opportunity today to speak to the provisions of Bill C-280, an act to amend the Criminal Code regarding the selling of wildlife.
If passed, the bill would create a new part XI.1 in the Criminal Code and would create three new offences relating to the selling of wildlife. These offences would apply despite the provisions of other federal acts of Parliament. However, the bill expressly states that the section setting out offences would not alter the application of any existing aboriginal or treaty rights.
The offences proposed in Bill C-280 would address three activities: the selling of wildlife or wildlife parts, the killing or capturing of wildlife for the purpose of selling wildlife or wildlife parts and, finally, possessing wildlife for the purpose of selling wildlife or wildlife parts.
The government does not support the bill for a number of reasons. The overarching reason is that the Criminal Code is not the appropriate statute to deal with the subject matter addressed by the bill. The measures in the bill are best addressed as regulatory law and not as criminal law.
Provincial governments generally have constitutional authority to regulate the conservation and sale of wildlife and wildlife parts. Provincial governments do in fact regulate such activities. There are important division of powers questions in relation to the measures in the bill which the member did allude to.
In view of the constitutional competence of the provincial governments to regulate the use of wildlife on provincial lands, I would urge those jurisdictions which are experiencing problems with the sale of wildlife or wildlife parts to work with their respective governments to address the problem in a regulatory context.
To the extent that the federal government does have the power to legislate to protect wildlife, it does so by the use of its regulatory power, not the Criminal Code. In fact, there are several federal statutes that cover the kind of conduct this bill seeks to address, including the Canada Wildlife Act, the Migratory Birds Convention Act, the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, and the species at risk bill, Bill C-5, currently before the Senate.
The federal government has a series of regulatory regimes in place designed to protect and conserve wildlife, and to punish related misconduct. These measures are not in the Criminal Code. The reason for this is because the government understands and appreciates that these matters are most appropriately dealt with in a dedicated regulatory regime.
The measures in the bill are best dealt with as regulatory law. They do not belong in the Criminal Code. I do not wish by these comments to suggest that the objectives of the bill lack merit. I think most members of the House would agree that the goal of discouraging the selling of wildlife and wildlife parts, particularly wildlife which is threatened or an endangered species, is a laudable one. However, the question is whether or not this particular bill is the best way to achieve this goal. In the government's view, it is not.
Let me outline some features of the bill that are traditionally associated with the creation of offences in the regulatory context, rather than within Criminal Code offences.
One important feature of the bill is that it does not apply equally to all Canadians. It would expressly exempt from application any person who is authorized pursuant to a federal or provincial permit or licence to commit the acts which otherwise would qualify as an offence as long as the wildlife involved is not a threatened or endangered species. Exemptions of this nature are extremely rare in the context of the Criminal Code. Indeed, the criminal law is a law of general application that normally applies to all Canadians in the same way.
Bill C-280 would permit the Minister of the Environment to exempt from application of the act “any person or class of persons” in respect of a threatened or endangered species where in the opinion of the minister the exemption is “necessary or in the public interest”. Giving a power to the Minister of the Environment to exempt people from the law again signals a regulatory law and not a criminal law.
There is another problem with this provision. The criterion for an exemption is so subjective and general that it would not provide any real limits on the behaviour to be exempted. This provision would face serious constitutional attack on that basis.
Another feature of the bill, which is not normally found in the Criminal Code, is that the Minister of the Environment would given the power to designate by regulation an animal as “wildlife” for the purposes of the provisions.
Another provision would permit the Minister of the Environment to designate a species of wildlife as either an endangered species or as a threatened species provided that the minister had consulted with the committee on the status of endangered wildlife in Canada.
Again, these provisions are more consistent with legislation aimed at the protection and regulation of wildlife than they are with provisions found in the Criminal Code. As noted by constitutional law expert Professor Peter Hogg:
A criminal law ordinarily consists of a prohibition which is to be self-applied by the persons to whom it is addressed. There is not normally any intervention by an administrative agency or official prior to the application ofthe law.
I think the interests of justice are served by a consistent and coordinated approach to subject areas within the legislative competence of the federal government. I have already referred to the numerous federal statutes that pertain to wildlife and wildlife protection. Some of the provisions of Bill C-280 overlap with those in the current wildlife legislation and also with the provisions of Bill C-5, the species at risk bill, currently before the Senate.
Bill C-280 would ignore this already existing body of laws or contemplated laws. Bill C-280 would create offences that in large part overlap the offences provided in these other federal statutes. Instead of seeking to amend these other statutes which deal directly with the matters at hand and are administered by the Minister of the Environment, who figures so prominently in Bill C-280, the bill before us seeks to create a whole new and independent regime that would have to be reconciled with the regulation that already exists.
This would add confusion to the regime that already exists. The offences proposed in Bill C-280 are inconsistent with similar offences in other federal statutes in that they are indictable offences only. This is inconsistent with provisions found in the Canada Wildlife Act, the Migratory Birds Convention Act, the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, and Bill C-5. Offences in these other statutes are dual procedure offences. There is no logical reason for this inconsistency.
The government cannot support the bill because, quite simply, it seeks to amend the wrong piece of legislation. The Criminal Code is not the right vehicle for prohibiting the sale of wildlife.
Even if one were to accept that such measures fit appropriately in the Criminal Code, which they clearly do not, the provisions of the bill are inconsistent in a variety of ways with the Criminal Code and normal criminal law procedures and penalties.
There is no precedent in the Criminal Code for this kind of penalty regime. The sentencing provisions in the Criminal Code follow a pattern for maximum consistency and rationality. Offences in the code generally have maximum penalties of 2, 5, 10, 14 years and life imprisonment. There is no precedent for the way in which this particular bill has been structured with respect to its sentencing.
In conclusion, the provisions of Bill C-280 cannot be supported for several reasons. They are not matters for the Criminal Code, they are inconsistent with other provisions of the Criminal Code, and they overlap and potentially conflict with other federal legislation that already governs this area.