Madam Speaker, a number of statements have been made by hon. members during the last week of debate. I am pleased to have an opportunity to come forward today and give clarification to the issues.
First, I will talk about the status of animals as property. One of the members indicated that animals are treated as property under the criminal code. The hon. member said moving the cruelty provisions out of the property section of the criminal code would confer elevated status or even rights on animals.
As a matter of constitutional law the provinces rather than the federal government are responsible for property and civil rights. There is nothing in Bill C-15B which would in any way affect legislation or common law rules regarding property, many of which have been developed by the provinces.
The ability of humans to own animals is well entrenched in our common law. There is nothing in Bill C-15B which would change the property status of animals. Moving the provisions from one part of the code and putting them in another would not change the status of animals. It is completely misleading to suggest the status of animals would be elevated.
It is extremely important to emphasize that the law states that society has an interest in protecting all animals, whether owned or not, from the infliction of unnecessary pain, suffering, injury or criminal neglect. This is not new. It has been in the criminal code since 1953. Cruelty provisions in one form or another have been in the code since 1892.
The important changes in Bill C-15B regarding animal cruelty are twofold. They would increase penalties. They would also reorganize the provisions to allow for both the mental and physical aspects of offences regarding intentional cruelty and criminal neglect.
Second, I will discuss the notion that Bill C-15B would hamper pest control and industry in general. There has been a great deal of discussion in the House today about this. It has been said that Bill C-15B would prevent farmers from poisoning or killing pests. The tests for liability under Bill C-15B would not be changed even though the provisions would be reorganized and updated. The provisions with regard to killing or poisoning animals without lawful excuse would remain. Lawful excuse would be retained because the killing of animals for food, pest control and so forth has long been recognized by common law and continues to be recognized by case law, statute, regulations, codes of conduct and so forth.
It is equally inaccurate to state that farmers would not be able to kill injured animals to end their suffering. The tests for liability under Bill C-15B would not be changed. Bill C-15B would not make illegal any practice which currently meets the requirements of the law against unnecessary pain, suffering or criminal neglect.
Third, I will talk about the test for negligence. One member has stated that under Bill C-15B the test would be for civil negligence. This is not true. Subclause 182.3(2) specifically defines negligence as a standard of criminal negligence. It says the behaviour of the accused must constitute a marked departure from the standard of care of a reasonable person in similar circumstances. The Supreme Court of Canada has expressly stated that in any situation where the possibility of imprisonment exists a standard of criminal as opposed to civil negligence is a constitutional requirement.
Fourth, I will talk about people's alleged vulnerability to vexatious prosecutions. A number of members have complained that Bill C-15B would make industry more vulnerable to vexatious prosecutions by animal rights activists. At the same time they have complained that the proposed screening mechanism of Bill C-15A would expose those accused to the costs of hiring a lawyer.
We cannot have it both ways. The criminal code currently has a number of safety mechanisms which allow the prosecutor to intervene and if necessary, stay a prosecution which is commenced by a person other than a peace officer or a public officer.
Bill C-15A extends this protection to a much earlier stage in the process to a point in time before the potential accused is even charged. The process is not a preliminary hearing. It is a screening process where a judge or a designated justice must be satisfied that there is sufficient reason to proceed before the accused is even required to attend court.
This process forces the prosecutor to assess the strength of the case at the first opportunity and to recommend to the judge or justice that the matter proceed if and only if there is sufficient reason to do so. One important consideration that the prosecutor will consider in making his or her recommendation to the court is whether or not it is in the public interest to proceed, a very important point.
Next I would like to deal with the argument that has been brought forward concerning section 429 and its absence. The argument that the reason subsection 429(2) defences have not been argued in cruelty cases is that their very existence precludes the crown from prosecuting.
The Canadian Criminal Lawyers Association in its testimony before the committee confirmed that removing the cruelty provision from part XI of the criminal code would not diminish any defences available to accused persons. All defences in subsection 429(2) which could possibly be relevant to animal cruelty cases and available under subsection 429(2) are equally available under subsection 8(3) of the criminal code.
It is simply wrong to indicate that the existence of defences acts as a bar to prosecution . Case law has clearly confirmed that there is no onus on the crown to disprove all relevant defences as part of its case. Once the crown has proven all elements of the offence beyond a reasonable doubt, the accused bears an evidentiary burden to raise a doubt about one of the elements of the offence. If the accused does so, then the crown must disprove the defence beyond a reasonable doubt. That is very important.
The last issue I would like to deal with is the definition of animal. Under the current cruelty provisions, animal is not defined. At the present time the courts are free to interpret the word animal in accordance with its everyday meaning, resulting in an interpretation broad enough to include most, if not all, members of the animal kingdom and certainly including many invertebrates. A definition is included in this legislation for the sake of clarity.
From a scientific perspective, vertebrates are generally viewed as having sufficiently developed nervous systems to allow for sense and pain perception. They are therefore as a group all given the protection of the law. But some invertebrates have a developed nervous system and therefore also may have the capacity to feel pain.
It would be arbitrary to permanently and absolutely deny protection to some animals because they happen to be classified as invertebrates. Bill C-15B creates a mechanism that allows the crown to proceed in appropriate cases. The burden of proof which must be met by the crown is proof beyond a reasonable doubt.
There are three jurisdictions in Canada which have a definition of animal in their respective statutes which is broader than the definition found in Bill C-15B. To date there is no indication that the definition of animal used in these jurisdictions has resulted in inappropriate use of the legislation.
I am very pleased to have had this opportunity to correct some of the information that has been brought forward during the debate.