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House of Commons Hansard #196 of the 37th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was wildlife.

Topics

Royal Assent ActGovernment Orders

12:10 p.m.

The Acting Speaker (Ms. Bakopanos)

I declare the motion carried.

(Motion agreed to, bill read the third time and passed)

Competition ActGovernment Orders

May 31st, 2002 / 12:10 p.m.

Moncton—Riverview—Dieppe New Brunswick

Liberal

Claudette Bradshaw Liberalfor the Minister of Industry

moved the second reading of, and concurrence in, the amendment made by the Senate to Bill C-23, an act to amend the Competition Act and the Competition Tribunal Act.

Competition ActGovernment Orders

12:10 p.m.

Liberal

Brent St. Denis Liberal Algoma—Manitoulin, ON

Madam Speaker, I am pleased to have this opportunity to address the Senate's amendment to Bill C-23, an act to amend the Competition Act and the Competition Tribunal Act. Bill C-23 is before us today in the form of a Senate amendment which corrects a small technical problem between the English and French text in subsection 106.1(4) of clause 14.

Bill C-23 is vital economic legislation designed to strengthen and modernize our existing competition laws to the benefit of consumers and businesses alike. For example, the legislation would prohibit the sending of deceptive prize notices which target the most vulnerable members of our society. It would enable Canada to gain access to evidence in other countries concerning civil competition matters. It would broaden the scope under which the competition tribunal may issue interim orders. It would improve the competition tribunal process. It would allow individuals and businesses to apply directly to the competition tribunal for relief from certain anti-competitive conduct. In addition, it would provide additional measures to protect competition in the Canadian airlines industry.

The bill has been carefully reviewed by both Houses of Parliament. The Standing Committee on Industry, Science and Technology carefully listened to a broad range of witnesses and concluded that Bill C-23 takes a balanced approach. Members will recall the bill passed the House of Commons with all party support on December 10, 2001.

Section 106.1 of Bill C-23 would allow for the possibility of a consent agreement between a person, other than the commissioner of competition, that has made an application to the competition tribunal for an order to be made under sections 75 or 77 of the Competition Act and the person against whom the order is sought. This provision would provide that such an agreement can be registered with the competition tribunal if the terms of the consent agreement are consistent with the provisions of the Competition Act. However, any consent agreement made under that section would have to be published in the Canada Gazette to give third parties an opportunity to examine the consent agreement.

During its consideration of Bill C-23 the Senate committee on banking, trade and commerce suggested that a minor discrepancy existed between the French and the English translations in subsection 106.1(4) of clause 14 of the bill. Indeed, according to the English version of the subsection 106.1(4), a person could within 30 days after its publication register a consent agreement. This would not leave a third party any time to make an application to have the consent agreement cancelled or replaced or to even examine the agreement. This would defeat the obvious purpose of the provision which was to allow third parties a chance to challenge the consent agreement.

The French version however indicates that the consent agreement can be registered only 30 days after its publication. The French version gives an appropriate effect to the provision. On May 2, 2002, the Senate committee reported back the bill with one minor amendment to subsection 106.1(4) to correct this discrepancy. The English version of subsection 106.1(4) has been corrected to that effect and now reads that the consent agreement “shall be registered 30 days after its publication”.

It is now up to members in this place to adopt this minor amendment and provide for speedy passage of Bill C-23. In so doing we will enhance the competition law enforcement in Canada to the benefit of consumers and businesses alike.

Competition ActGovernment Orders

12:15 p.m.

Canadian Alliance

James Rajotte Canadian Alliance Edmonton Southwest, AB

Madam Speaker, I rise today to speak to the Senate amendment to Bill C-23, an act to amend the Competition Act and the Competition Tribunal Act. The Senate amendment is a minor amendment which removes the word within from clause 14, subsection 106.1(4). Subsection 106.1(4) states:

The consent agreement shall be registered within 30 days after its publication unless a third party makes an application to the Tribunal before then to cancel the agreement or replace it with an order of the Tribunal.

The amendment takes the word within out to read: “The consent agreement shall be registered 30 days after its publication...”.

We are supportive of the amendment as we were supportive of the bill at all stages of its proceeding. The bill was sent to the Senate at first reading on December 11, 2001, and at third reading in the Senate it was sent back to the House of Commons on May 9, 2002, to remove one word, which as I see it, does not really alter the intent of the clause. That really makes one question what the purpose of the other place is as presently constituted. It again makes a call for a truly effective Senate which can only happen if it has democratic legitimacy.

The official opposition has been supportive of Bill C-23 at its different stages. The process the bill went through was certainly superior to the manner in which most bills are passed by parliament because it was sent to the Standing Committee on Industry, Science and Technology before second reading which typically indicates that the government was open to substantive amendments. The bill was substantively amended in committee. The most significant amendments, as many members know, concern the creation of a new right of so-called private access which is the right of a person or business to seek a legal remedy against the anti-competitive conduct of another.

This takes away the ability of the competition commissioner to act as a gatekeeper before the tribunal. People can access the tribunal regardless of whether the commissioner agrees the case should go forward or not. We should point out that the commissioner himself was in favour of this change when he appeared before the committee two separate times.

There was a consensus in committee among all members that this limited right of private access, and it is important to note that it is quite a limited right of private access, is not extensive. It was a reasonable step toward improving Canada's competition policy regime. The Canadian Alliance continues to believe that competition itself is the best form of discipline for people, for citizens and for businesses. Competition law cannot replace the effect that competition itself has on the economy.

We strongly support the view that competition law must not be set up to protect certain businesses. That is not the purpose of competition law. Competition law must do what it can to facilitate competition against itself. That was one point that the commissioner made over and over in his presentation to us.

The official opposition is satisfied that the bill is a step toward these broad goals and therefore supports the bill as amended by the Senate.

Competition ActGovernment Orders

12:20 p.m.

Bloc

Jocelyne Girard-Bujold Bloc Jonquière, QC

Madam Speaker, I am pleased to address Bill C-23, an act to amend the Competition Act and the Competition Tribunal Act, and the amendment proposed by the Senate.

As we know, Bill C-23 was made up of three private member's bills. There were some very interesting features. Before the proposed changes included in Bill C-23, only the commissioner of competition could file a complaint before the competition tribunal.

Bill C-23 now provides for a private access that will allow people to directly launch court proceedings, on their own behalf, regarding competition issues. This new provision of the act will apply to four areas: refusal to deal, exclusive dealing, tied selling and market restriction.

However, while these changes were interesting ones, they did not revolutionize the way of doing things in Canada when it comes to competition. The provisions of Bill C-23 remain weak, and they do not go to the bottom of the issue of competition in Canada.

In its 2000 election platform, the Bloc Quebecois said, and is still saying, that the Competition Act should be amended to guarantee competitive prices to consumers. This is the basis of the issue of competition.

It is all well and good to allow third parties to argue a case on their own before the Competition Tribunal, but if the Competition Bureau does not have the adequate means to carry out its investigations, what good does it do? We must not circumvent steps. Ensuring truly competitive pricing to consumers must remain the cornerstone of our actions.

For this reason, I had moved a motion in the House that would have reviewed the implementation of section 45 of the Competition Act and reviewed the word unduly. The current wording in this section allows multinational corporations to raise prices, particularly in the case of gas.

Allow me to give an example. On a street with five gas stations, the prices all go up at the same time, and at the same hour. Under the current law, the Competition Bureau cannot launch an investigation based on this observation. There must be written proof of collusion. This is virtually impossible to obtain these days. Unfortunately, Bill C-23 does nothing to correct section 45.

However, I have not lost all hope. The Standing Committee on Industry published a report on April 23, in which it proposed some good amendments to the section. The Minister of Industry should seriously consider these proposals.

The Standing Committee on Industry said the following:

That the Government of Canada create a two-track approach for agreements between competitors. The first track would modify the current criminal provision (section 45) in two ways and allow the criminal justice system to deal with “hard core cartels”, in other words conspiracies that have no compensatory social value.

This would remove the word unduly from the phrase “to lessen, unduly, competition”. As such, horizontal agreements between competitors should not have to limit competition unduly or deliberately in order to be considered a conspiracy against the public interest. Such an amendment would be welcome.

Therefore, I am pleased, on behalf of the Bloc Quebecois, to support this amendment from the Senate. It is very important, particularly since, from a legal perspective, the French and English versions are often different. As a result, it was important to make this change, and I congratulate the members of the other chamber.

This is also an opportunity to point out how much progress we have made when it comes to competition; however, there remains work to be done. I hope that the minister will take note of this and make amending section 45 a priority for his department.

Bill C-15B, An Act to Amend the Criminal Code (Cruelty to Animals and Firearms) and the Firearms ActGovernment Orders

12:25 p.m.

Glengarry—Prescott—Russell Ontario

Liberal

Don Boudria LiberalMinister of State and Leader of the Government in the House of Commons

Madam Speaker, an agreement could not be reached under the provisions of Standing Order 78(1) or 78(2) with respect to the third reading stage of Bill C-15B, an act to amend the Criminal Code (cruelty to animals and firearms) and the Firearms Act.

Under the provisions of Standing Order 78(3), I give notice that a minister of the crown will propose at the next sitting a motion to allot a specific number of days or hours for the consideration and disposal of proceedings at the said stage.

The House resumed consideration of the motion in relation to the amendment made by the Senate to Bill C-23, an act to amend the Competition Act and the Competition Tribunal Act.

Competition ActGovernment Orders

12:25 p.m.

NDP

Wendy Lill NDP Dartmouth, NS

Madam Speaker, I am pleased to rise today to make a few comments on the proposed changes to Bill C-23, which now comes to us by way of the red chamber.

First let me say that the amendment made by the other place seems to be minor, so I plan to comment on some of the larger aspects of the bill. I will start with some of the long overdue changes that the bill makes in the powers of the Competition Tribunal and the commissioner as they relate to air competition.

I had hundreds of constituents stranded when Canada 3000 collapsed. As members will recall, Air Canada's new subsidiary, Tango, had just been launched and the Competition Bureau was on the verge of slapping Air Canada on the wrist when Canada 3000 went under.

I am not confident that the minor baby steps the bill takes in the right direction will result in better or cheaper air service in Nova Scotia. I am encouraged by the new carriers that say they will be braving the skies to compete with the reality of the virtual and quite brutal monopoly held by Air Canada in Atlantic Canada, but I fear and I know that many of my constituents also fear that we will see a repeat of the Canada 3000 fiasco.

Bill C-23 does nothing to stop Air Canada from using its new subsidiaries Tango or Jazz, or whatever new dance step name it comes up with, to simply undercut new competitors and drive them out of business by having the deep pockets to survive an expensive fight. I fear that in a year we will back where we are now with travellers in Atlantic Canada paying very high prices for poor service provided by an Air Canada monopoly.

I wish that the government and the Senate had come up with real regulations that would have stopped Air Canada from effectively killing competition. I wish that the Minister of Transport had a vision of air service in Canada that went further than the office of Robert Milton. Bill C-23 does nothing to tell me that he does.

On another change that Bill C-23 makes, I congratulate the government. The section dealing with protecting our seniors from unscrupulous direct mail and telemarketers' offers that lie to people as a way to steal their life savings is long overdue. The problem is not unique in Canada, but our laws seem to have been well behind the times.

As the Library of Parliament brief on the bill correctly notes, in June 2001 the U.S. senate permanent subcommittee on investigations heard testimony from victims of and experts on telemarketing fraud. Almost all of them described Canada as a haven for such fraud. The committee heard that phone scams swindle more than $35 million every year from Americans, mostly seniors, and although apparently some fraud originating in the U.S. is aimed at Canadians, it is only a small fraction of the amount aimed at Americans.

Experts praised the U.S.-Canada working group on telemarketing fraud that has reportedly caught a few of the perpetrators. Project Colt was formed in April 1998 to co-ordinate efforts among the RCMP, the U.S. customs service, the FBI and various arms of the Quebec police. Since its inception the project has returned $12 million to victims. Law enforcement officials on both sides of the border met in Ottawa in June 2001 to discuss these and other related issues.

The creation of an offence of deceptive notice of winning a prize will help protect poor and vulnerable people. It is easy for those of us here who make a good salary and who have a huge infrastructure to support us in our work to simply warn people that if someone is promising something for nothing they should not believe it, but there are so many Canadians who live with poverty, who are seniors with inadequate pensions, who have a lack of education and struggle with minimum wage jobs or live with disabilities. They live in a society where culture is based on success, with happiness equalling wealth. When we look at TV or read the sage opinions of our opinion leaders, who are all business leaders because pro-business leaders own all our media, we see that the only goal in Canadian life is to be wealthy, that this is how Canadians would be happy.

This culture leaves those who are poor desperate to become rich, not only so they can get better things, but because it is a culture that says if a person is poor, that person is a failure. Therefore when someone who is poor gets a notice in the mail falsely saying they have won money, the joke is extremely cruel.

When these notices are being used to try and take money from those who already have too little money, then it should be a crime. The creation of this criminal offence in the bill and the mandating of officials to proceed with the prosecution of this crime as a criminal and not an administrative offence is a very good thing.

One last section of the bill I wish to comment on is the increase in international co-operation to investigate competition offences. With globalization becoming a greater reality, we need to have international codes of conduct that transnational corporations have to live by.

Too often companies are using differences in laws and differences in the way that records are kept to escape basic responsibilities, like the paying of a fair share of taxes as good corporate citizens, protecting the environment, and treating workers safely and fairly. I would hope that the provisions of the bill that deal with requests by foreign states for assistance in gathering evidence in Canada required for prosecution of competition offences in a foreign country are a first step by the government to creating rules for the international corporate community.

Using the bill, with references to agreements for foreign states, Canada may enter into an agreement if the Minister of Justice is satisfied that the laws of the foreign state are similar to Canada's; that the confidentiality laws of the foreign state are similar to Canada's; that the agreement will contain provisions for circumstances where Canada can refuse assistance and applicable confidentiality provisions.

As well, the agreements will contain undertakings that the foreign state will provide similar assistance to Canada. Information will not be used for any other purposes. Information will be returned or with consent destroyed. All information will be confidential. The Minister of Justice will be informed if there is a breach of confidentiality. The agreements will contain a termination provision.

The act further states four different judicial orders by which evidence may be gathered for use in a foreign proceeding. These orders are: search and seizure order, which is search and seizure of the evidence; evidence gathering order, which is the examination under oath of a person; a virtual presence order, when a person's virtual presence is requested by video link or similar technology; and finally, lending exhibit order, which requests the loan of an exhibit admitted as evidence.

Let us see these forms of international co-operation as a beginning in the real regulation of all international corporate activity.

I hope that the next step the government brings forward is a Tobin tax, an international environmental protection standard that international companies must respect and enforce in order to have truly international enforceable labour standards.

Competition ActGovernment Orders

12:35 p.m.

Progressive Conservative

Peter MacKay Progressive Conservative Pictou—Antigonish—Guysborough, NS

Madam Speaker, I am honoured to speak to this bill and to follow my colleague from Dartmouth, Nova Scotia. As is always the case, she delivered a very thoughtful and insightful speech regarding this legislation.

Bill C-23 amends the Competition Act and the Competition Tribunal Act. Its purpose is to maintain and encourage competition in Canada, surely something this government, as previous governments, should be actively pursuing. It therefore plays a central role in our Canadian economy. The role is becoming increasingly important because we are becoming more global as a nation in terms of our trade, direction and access to foreign markets. The number of mergers is increasing and many sectors of activities are converging in the business world.

The amendments which will be brought about as a result of Bill C-23 were proposed to make it easier for the government to co-operate with foreign competition tribunals. Specifically, it is fair to say the global economy is more important now. Governments have the ability to co-operate with each other when dealing with multinational organizations. Bill C-23 was introduced to streamline the competition tribunal process. Any process dealing with quasi-judicial bodies must be streamlined to make it more effective.

The bill was introduced to broaden the tribunal's ability to issue temporary orders. The competition commissioner and tribunal need to be able to react immediately to situations, even if the actions are temporary, to put cease and desist orders in place and to allow some kind of remediation to occur.

Bill C-23 has tough new measures to deal with anti-competition practices in the airline industry. It is very timely. Canadians across the country know the difficult times the airline industry has been through. The demise of Canada 3000 is a case in point. Although the competition commissioner was in that instance prepared to put cease and desist orders in place, the process of applying for the order and having to put it in place is often not quick enough to stop the damage that takes place through the predatory and overtly anti-competitive practices that sometimes occur.

One concern about the Competition Act coming from the House industry committee process is that the privacy rights to access are questionable. Private parties must have the right to apply directly to the competition tribunal for remedies concerning refusals to deal, tied selling, market restrictions and exclusive dealings.

It is important for people to be able to challenge what is considered to be fair practices by the competitor trying to put out smaller competitors simply through the use of these kinds of tactics. It is also important to the well-being of members of the small business community to be able to fight back. This legislation will provide them with an opportunity to challenge larger businesses that are trying to put them out of business. It levels the playing field and arms the small businesses with a form of protection, a blanket approach.

It is important for companies, corporations and small businesses as well as individuals to have the ability to advance their causes even though the competition tribunal may not think they are as important as other issues. They are permitted under this act to force that issue at times when they may be giving lesser priority.

As in many cases, once something is put on the back burner the damage may already be done for delay can be the deadliest form of denial. Private access also means that if the competition commissioner feels that something is not as important as, say, airline restructuring, it can go through the process and not be tied up for years.

In many instances we have seen, coming from the field myself, that the lawyers who get involved use the process as a weapon essentially against their adversaries, such as tying the issue up, filing motions, making appeals, dragging the issue out. The costs are often prohibitive. Very often in civil cases and in certain instances in the criminal court the costs can result in a real injustice, an injustice that never sees resolution or the light of day.

Bill C-23 will create additional case law that will provide the business community with a better understanding of what the laws of the land are and how they might fall under the practices considered not to be in the best interests of competition. It will also develop case law that can be used for the furtherance of fair business practices. It would result, I suspect and submit, in precedent and stare decisis in the court that will set the bar, set the standard.

The act inevitably will result in a flurry of legal activity and challenges that will test the parameters of the bill. That is healthy and to be expected. Members of parliament should understand fully that passing new laws will result in challenges. That should never be a bar or attempt to dissuade lawmakers from doing what they are expected to do.

Bill C-23 in particular will put in place new penalties, including fines of up to $15 million for an airline acting in an anti-competitive fashion. This could result clearly in taking someone out of the competition altogether and should act as a real deterrent. To use the criminal and civil codes as a standard, deterrence is an important element in putting these parameters in place for the way in which businesses conduct themselves.

One of the concerns that was voiced about the Competition Act was that the legislation had no teeth to allow the competition commissioner to respond in a way that would stop predatory behaviour. The legislation finally will contain some teeth so that the competition commissioner will have meaningful input into keeping anti-competitive behaviour at bay and real consequences when that line is crossed.

The ability of the competition commissioner to extend cease and desist orders beyond the current 80 days is also very important. It is important because of the time it takes to prepare a case and to bring the complaint against the competitor. It is also very timely and allows the application, which sometimes has not been processed before the cease and desist order expires, to come forward.

In conclusion the Progressive Conservative Party is very pleased to see the extension. We are pleased to see the amendments contained in the bill. It makes the process and the legislation more meaningful. It adds more pith and substance to what is currently in place to protect competition and businesses, large and small. It is an important bill for those reasons that have been set out and the reasons enunciated by other members of parliament.

We must ensure that the bill is passed in a timely fashion. To do otherwise would be irresponsible. As the clock is ticking and time is running out, we urge the government to undertake to pass the bill forthwith. We must make sure that competition, particularly in the airline industry, is real and is healthy. For those reasons the Progressive Conservative Party fully supports Bill C-23.

Competition ActGovernment Orders

12:40 p.m.

The Acting Speaker (Ms. Bakopanos)

Is the House ready for the question?

Competition ActGovernment Orders

12:40 p.m.

Some hon. members

Question.

Competition ActGovernment Orders

12:40 p.m.

The Acting Speaker (Ms. Bakopanos)

The question is on the motion. Is it the pleasure of the House to adopt the motion?

Competition ActGovernment Orders

12:40 p.m.

Some hon. members

Agreed.

Competition ActGovernment Orders

12:40 p.m.

The Acting Speaker (Ms. Bakopanos)

I declare the motion carried.

(Motion agreed to, amendment read the second time and concurred in)

Competition ActGovernment Orders

12:45 p.m.

Liberal

Paul Devillers Liberal Simcoe North, ON

Madam Speaker, I rise on a point of order. I believe you would find unanimous consent to see the clock as 1.30 p.m.

Competition ActGovernment Orders

12:45 p.m.

The Acting Speaker (Ms. Bakopanos)

Is there unanimous consent?

Competition ActGovernment Orders

12:45 p.m.

Some hon. members

Agreed.

Competition ActGovernment Orders

12:45 p.m.

The Acting Speaker (Ms. Bakopanos)

The House will now proceed to the consideration of private members' business as listed on today's order paper.

The House resumed from May 9 consideration of the motion that Bill C-292, an act to amend the Criminal Code (selling wildlife), be read the second time and referred to a committee.

Criminal CodePrivate Members' Business

12:45 p.m.

Notre-Dame-de-Grâce—Lachine Québec

Liberal

Marlene Jennings LiberalParliamentary Secretary to the Minister for International Cooperation

Madam Speaker, it is a pleasure to speak to Bill C-292.

Bill C-292 is the proposed legislation to deal with the selling of wildlife and wildlife parts. I would like to say to the member for South Surrey--White Rock--Langley that her motivation behind the bill is admirable.

However, as the Parliamentary Secretary to the Minister for International Cooperation and on behalf of the government, I want to express the government's views as well as my own views because I have read the bill quite carefully and have researched the criminal code to see what actually exists in it.

As the government we fully support, as I do personally, ensuring that wildlife is preserved and protected in the best possible way, and that preservation and protection certainly has to extend to species at risk.

In fact there are many years of conservation actions behind us in Canada, and there are a number of statutes that are already on the books that accomplish the goal that the member for South Surrey--White Rock--Langley seeks to address with Bill C-292.

Let me speak about the tools that this particular private member's bill would create. The proposed legislation would create three indictable offences under the criminal code for selling wildlife or wildlife parts or for killing, capturing or possessing wildlife or wildlife parts for the purpose of selling them.

Under the proposal there would be exemptions from prosecutions for people who sell wildlife in accordance with a licence permit or an exemption order. The bill also says that the sale of threatened or endangered species would mean high penalties and that all offences would be subject to the money laundering provisions of the criminal code.

As the House may have noted at the outset of my remarks, these are admirable objectives and I commend the member for her bill. I cannot deny it. I do not think anyone else would deny that these objectives are in fact admirable.

I applaud, and I am sure that my colleagues would probably be unanimous in applauding, the notion behind these objectives. However we want to make sure that there is a good fit with other legislation in place or pending. This is very important.

I am a lawyer by training and I have had the privilege of practising in the area of administrative law. I know firsthand the difficulties that can happen at times when drafters of one piece of legislation have not done complete and adequate research of all the legislation that could impact on or have some bearing to a particular area or jurisdiction and we end up with anomalies.

That is one of the reasons even the government, either through the Senate or by its own bill, brings in bills to clean up, clarify or correct errors in past legislation that has already been adopted.

Looking at Bill C-292 and looking at the provisions that already exist under the criminal code for example, as well as other legislation, clearly Bill C-292 is not a good fit with the legislation that is already in place. I am not even talking about legislation that may be pending before the House at this time.

Therefore I would like to point out that in the Migratory Birds Convention Act of 1994 and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, known as WAPPRIITA, there are dual procedure offences. These are also found in the Canada Wildlife Act.

Dual procedure offences mean that they can begin with a summary conviction or with an indictment. The maximum prison term set out for proceeding by indictment in both statutes do not exceed five years.

Let us also consider a piece of legislation that is currently pending, the government sponsored Bill C-5, the species at risk act. That bill as I mentioned, currently pending, is at report stage in the House of Commons.

One of the offences created in Bill C-5 is the prohibition on the killing, harming, harassing, capturing or taking of a wildlife species that is listed as extirpated, endangered or threatened. Bill C-5 also includes a prohibition on the possession, collecting, buying, selling or trading of a wildlife species listed as extirpated, endangered or threatened.

There is some overlap between this offence and the ones outlined in existing legislation, as well as the offences set out in the bill we are discussing today, Bill C-292.

Bill C-292 provides only indictable offences. The maximum prison terms vary from two years to eight years, depending on whether the offence is a first or subsequent one and whether the wildlife involved is an endangered species.

The question here is not that we need to do this. The question here is whether it is already being done and, if it is already being done, is it being done in a better way.

Is Bill C-292 the best way to accomplish the goal? Are the provisions about prohibiting behaviour that is traditionally associated with parliament's exercise of its criminal law power. Or perhaps we should say that Bill C-292 is describing a public welfare offence traditionally associated with regulatory matters in a civil context.

That is why I believe this approach is inconsistent with the classification of offences elsewhere in the criminal code.

The sale of wildlife, as I have previously mentioned and hope I have demonstrated, is well covered in existing legislation. Therefore Bill C-292 is a duplication and in my view is not necessary. I also submit that in many cases we would be using the heavy hand of the criminal code for some sales that would be considered quite minor, such as the sale of a few muskrat pelts or of one skin. I truly believe we do not need such a heavy approach.

Let me explain further. The offence of sexual assault is classified as a dual procedure offence, which means that the crown may elect to proceed by summary conviction or by indictment. From a policy point of view, it would appear inconsistent to classify the selling of wildlife as an indictable offence when other offences considered much more serious by Canadian society are classified as dual procedure offences.

I will not get into the cost implications to the provinces and territories if they were straight indictable offences, but I do call on the members of the House to remember that under the Canadian system provincial governments are those with the constitutional powers to regulate the use and protection of wildlife on provincial land.

I will not be supporting the bill but I do commend the member for White Rock--South Surrey--Langley for her good intentions with this.

Criminal CodePrivate Members' Business

12:55 p.m.

Canadian Alliance

Chuck Cadman Canadian Alliance Surrey North, BC

Madam Speaker, I am pleased to speak to my colleague's private member's bill, Bill C-292, an act to amend the criminal code in relation to the selling of wildlife.

First, I would like to acknowledge my colleague from South Surrey--White Rock--Langley for her staying power in seeing the bill through to this point. Having a private member's bill deemed votable is no easy task and hanging in there since 1996 is to be commended.

As an aside, I need to state for the record that there has to be a better way of conducting private members' business. It is ridiculous that the work of a member of parliament took six years and two elections to come before the House of Commons for debate.

Our procedure for private members' business is long overdue for a complete overhaul and this is a perfect example why. We have only to look at the frustration expressed by our colleague from Esquimalt--Juan de Fuca at government actions surrounding his private member's business. In the 36th parliament the Liberals attempted a similar tactic with one of my initiatives.

I am sure that there is concern on all sides of this place with the seemingly never-ending problems associated with the way in which we conduct private members' business. The time for meaningful reform is long overdue. That aside, I would like to speak to the merits of my colleague's legislation.

This is a well thought out piece of legislative work that addresses the very serious issues of poaching Canadian wildlife to sell on the black market. If we were to look at other places, for example in Africa where poaching went on for a long period of time without serious consequences, many species either became extinct or exist at the brink of extinction. I do not believe we are quite at that point in Canada but we are dangerously close with some species. The bill would go a long way toward ensuring that we never face the same problems experienced in other parts of the world.

Take the bear for example. In 1995 the street value of a bear paw, which is apparently used for making soup, was upward of $800. A bear gall bladder went for $1,000.

Fines for the illegal sale of animal parts are simply looked upon as merely a cost of doing business. Just two years ago there was a case involving two Surrey residents who were convicted for the selling of 18 bear gall bladders. Their penalty was a mere $7,000 and 17 days in jail. Assuming that they made the going rate of $1,000 per gall bladder, they still come out ahead over $10,000.

Certainly there may have been other costs, such as legal fees incurred, but that is not the point. Is anyone naive enough to believe that the 18 gall bladders they were prosecuted for were all they actually poached? What of the parts other than the gall bladders? Put in that context and the potential profit to be made, $7,000 and 17 days in jail seems like a reasonable cost of doing business.

The bill would make the offence of poaching for the purpose of selling animal parts much more serious. In my opinion it would act as a significant deterrent to the crime. The legislation would provide the tools that are necessary to combat poaching and the illegal animal parts trade.

It is appropriate to give the courts the ability to impose fines of up to $150,000 and a jail sentence of up to five years. Of course we would hope that the courts would see fit to utilize these maximums but that is another discussion. By taking the profitability out of the crime, we would go a long way toward eradicating the problem.

The next hurdle would be to ensure that adequate resources exist to do the enforcement work to apprehend those who would threaten our wildlife. Providing a criminal code deterrent is one thing. Having the resources to enforce the law is altogether another. Let us deal with one thing at a time.

My reading of the legislation is that it would simply close loopholes that currently exist in provincial laws. It is my understanding that currently, for the most part, the provinces are obligated to prove that the animal or its parts were destined for international trade or interprovincial transport before serious sanctions could be imposed. Unless wildlife officers or police catch the culprits actually transporting their products, this is an extremely difficult thing to prove. That is not to mention that the penalty structure I alluded to earlier is somewhat of a joke and in light of the current legislation is not adequate.

By making this amendment to the criminal code, provincial authorities would have the discretion to pursue the most serious cases of poaching either through the criminal code or via their respective provincial legislation as they see fit. It is important to note that the bill would not infringe on provincial jurisdiction. The provinces would still have the sole discretion to determine how these activities would be prosecuted.

Contrary to what some have suggested, this law would not trample on provincial rights. This legislation should be considered similar to serious driving offences. Even though the provinces have sole jurisdiction to determine what the rules of the road are, parliament feels that there are certain driving offences that deserve criminal code offences. Impaired driving is a good example of this.

Lastly, it is extremely important to emphasize that this bill would in no way affect people who were legally harvesting wildlife as sanctioned by the provinces. Persons with valid licences, permits or exemption orders would not be affected. Canada has a long proud tradition of hunting and trapping for the purpose of survival and livelihood and there is absolutely nothing wrong with this legal pursuit. It is those people who practise outside the law who must be stopped.

I would like to conclude by saying that this legislation deserves to be studied further in a committee setting. It is very clear to me that the principle and purpose of this bill are sound. Few pieces of legislation are ever drafted perfectly the first time and I would like to see what the experts, both pro and con, have to say in a more detailed study. That is why I encourage all members of the House to vote in favour of Bill C-292 at second reading and allow it to go before the justice committee for further study and possible amendment, if required.

Criminal CodePrivate Members' Business

1 p.m.

Bloc

Réal Ménard Bloc Hochelaga—Maisonneuve, QC

Madam Speaker, I wish to thank the member for South Surrey—White Rock—Langley for introducing such a bill. Much as the member for Châteauguay did, I will say right out that we have a few reservations about this bill.

We fully understand the spirit of the bill. Under the proposed legislation, there would be stiffer penalties than at present for killing or capturing wild animals in order to sell their organs or parts.

I listened carefully to the speech given by our colleague in the first hour of debate. She provided statistics. For example, she said that, in 1995, 25% of bears killed were killed illegally, for a total of almost 1,300 bears, including 90 grizzlies. Parts can fetch thousands of dollars and the fines handed out are weak deterrents. I can understand that in some provinces in Canada this is a situation demanding action.

I was also very sensitive to the example that she gave. She talked about black bears that venture into people's backyards in her community. People kill them not because they are hungry, not because these animals are a direct threat, not because they want to use the meat, but because they want to sell certain body parts. We are talking here about gall bladders or other body parts that are extremely popular on the market.

Even though our colleague said that the purpose of this bill is not to replace provincial legislation, I think there is a certain degree of inconsistency in her bill. I would like to be sure that I understand correctly.

Let me quote what the member said in her speech:

WAPPRIITA does not cover any offence that takes place in one province. Only the provincial legislation is in place for these offences. What I am hoping to do with Bill C-292 is to fill this loophole, ensuring that all offences of this type can be prosecuted under federal legislation.

It is difficult to say that the purpose of the bill is not to replace provincial legislation while saying at the same time that this particular bill is being introduced to fill a loophole since the federal act does not cover offences that take place in one single province.

We looked into what this bill would mean for Quebec. As my colleague, the hon. member for Châteauguay, said, in Quebec there is the act respecting the conservation and development of wildlife. This act was passed by the national assembly and its elected representatives. It applies, accordingly, to all of Quebec.

I believe that the goal sought by the member is no doubt quite commendable and appropriate; no one wants a wild animal organ market to develop. It is up to legislators to take measures designed to deter people from doing this kind of thing. I agree that the fines in place are not sufficient to deter people, but I wonder if it would not be right, from a constitutional perspective, to let the provinces increase these fines. We know perfectly well that even though criminal law comes under federal jurisdiction, the provinces can impose fines.

In the Quebec legislation, the act respecting the conservation and development of wildlife, section 69 covers this. Hon. members will agree with me that these provisions respond quite well to the concerns raised by our colleague.

Section 69 reads as follows:

No person may sell or purchase an animal the sale of which is prohibited by regulation. Authorized sale. However, the Government may, by regulation, authorize the sale of an animal referred to in the first paragraph according to such norms and conditions as the Government may determine.

I would also like our colleague from South Surrey—White Rock—Langley to know that the Quebec statute also contains provisions, in sections 165, 167 and 172, for penalties of up to $16,000.

The hon. member mentioned a case where a fine of $7,000 was imposed on a person for killing bears. In Quebec, fines are much stiffer. They can go up to $16,000. Jail sentences can go of up to a year and there are administrative penalties that can result in the cancellation of a licence.

For all these reasons, we believe that if the hon. member's bill were passed, it could result in an intrusion into a provincial jurisdiction. We are used to seeing the government doing this, whether it is with the millennium scholarships or in the health sector. Now, the government is about to propose an early childhood policy and a palliative care policy. So, we are used to this from the government.

There is even a very big rumour—and you will not believe your ears, Madam Speaker—that the federal government will create a Department of Urban Affairs to deal directly with municipalities.

So, we are used to seeing the federal government getting involved in provincial jurisdictions. However, when we, the opposition parties, propose private member's bills, we must be extremely vigilant and ensure that there is no intrusion into provincial jurisdictions.

Members know that I have taken courses in constitutional law. I even took a course given by Professor Benoît Pelletier, who is an excellent professor of constitutional law at the University of Ottawa, although I obviously do not share his views on the national issue.

In constitutional law, one certainly learns that there is the double aspect doctrine. It is in fact possible for one government or the other to intervene if necessary in a field of provincial jurisdiction, whether it be the federal government or a provincial government.

However, in the case we are debating this afternoon, if the federal government could impose fines and intervene when the species in question were within provincial boundaries, when there are already wildlife conservation laws, we do not think that this would be secondary interference. We think that this would constitute a precedent which could involve the federal government in matters relating to ecology, environmental law. It could set unfortunate precedents, which could be detrimental to the provinces.

In conclusion, I thank our colleague for her bill. I understand her motivations very well. Unfortunately, we will not be able to support her.

Criminal CodePrivate Members' Business

1:10 p.m.

NDP

Joe Comartin NDP Windsor—St. Clair, ON

Madam Speaker, I am pleased to rise today, like a number of other speakers, to acknowledge the work that the member of the Alliance for South Surrey—White Rock—Langley has put into the bill. It is one that I am happy to support.

When I first saw the bill it brought back to mind a trip that I had taken to the United Nations program in Nairobi, Kenya where there was a United Nations conference on biodiversity and a number of other issues. While we were there the delegation was taken to a national wildlife park which was adjacent to and almost a part of Nairobi. We were taken to this one site to see some of the wildlife.

There was a plaque there commemorating the burning of elephant tusks. This was the response of the Kenyan government to the international trade in ivory. It undermined in a significant way that trade by destroying a great deal of ivory. This was ivory which had been confiscated after the poachers had been apprehended. I am told, although I must say it is secondhand information, that it was just a huge pile. There were literally tonnes of tusks of ivory that were burned at that time.

When I saw the member's bill it brought back that image because at the time I thought how desperate that government must have been for it take that action. I then look at some of the arguments that we are hearing, particularly from the government, about the bill going too far and how it cannot support it.

It makes me wonder if we as a government ever want to find ourselves in that type of a situation. Obviously the answer is that we do not. Therefore, the House must take all necessary steps within our legislative, constitutional and criminal law framework to protect the wildlife in this country.

It is important that people understand the role that Canada must play in the protection of wildlife on the planet as a whole. We make the mistake, because of the familiarity of our own situation, of looking to Africa and saying that it has a lot of work to do to protect its wildlife because it is under such pressure. That of course is true. We may do the same thing if we look at Australia. The reality is that Canada is in a similar boat. The biodiversity that we have is among the greatest in the world. We have a stewardship responsibility to protect and enhance wildlife. Bill C-292 is a way of doing that.

Just within the last week or 10 days there was a rather in depth report which came out of the same United Nations office in Nairobi. Scientists were sending back information and having it compiled about the threat to wildlife around the world. Their estimate was that no matter what we do and how hard we push right now, today and into the future, we will lose 25% of all species across the globe.

There were something like 1,000 scientists around the globe who contributed to that study. These were the top environmentalists in the world on the issue of biodiversity and the whole issue of protecting the environment for our wildlife. No matter what we do we will lose 25%.

I come back to the bill and say it is a very small part. When I hear the government say it cannot even do that little bit, I ask where is our responsibility? Are we upholding our responsibility? Where is the stewardship role? Is Canada and the Canadian government responding properly to it?

We are not responding properly to it because all we have to do is look at what happened with Bill C-5, the species at risk legislation. It was promised by the government in one of its red books in 1993. There have been three incarnations of it and it is stalled in the House because the Liberals cannot get their act together.

The bill came back to the House significantly amended and reflected a great deal of hard work by members from all sides of the House. There was a serious attempt on the part of the minister and his department to gut it, to minimize it, and not to provide any protection at all for our wildlife.

We have been working for over nine years on that bill in one form or another and we still do not have it. We promised this at Rio in 1992. We have signed a number of protocols since then as a country, committing ourselves to protect the biodiversity of the planet, in Canada's case, and we have done an abysmal job of living up to those responsibilities.

It is a simple bill which says if a person were to trade, sell or kill wildlife for the purposes of profit, that person would face criminal charges. I probably would have said to the parliamentary secretary in law school that he is nitpicking on this issue of whether the bill should be a dual procedure offence. If he felt strongly about that, he should support it and send it to committee and move an amendment to include it both as a summary conviction offence and an indictable offence. It is a simple solution and not a basis to oppose the bill.

I take umbrage on the whole argument that it is a regulatory function and not a criminal matter. I totally reject that. The member may want to take a look at the supreme court decisions on Hydro-Québec and the more recent Hudson case in its analysis as to what it is prepared to allow. To suggest that it would be constitutionally unsupportable flies in the face of the logic, reasoning and basis for both those court decisions.

The Supreme Court of Canada is saying it would bend over backward on any legislation if it were to protect the environment and our wildlife. That is what the bill is about. It would go some distance to send a clear message, assuming the government would then take the second step to enforce it, to tell people who are prepared to traffic in animal and animal parts that we will not put up with it any more.

Criminal CodePrivate Members' Business

1:20 p.m.

Progressive Conservative

Peter MacKay Progressive Conservative Pictou—Antigonish—Guysborough, NS

Madam Speaker, I am pleased to take part in the debate on Bill C-292. I am also pleased to follow the hon. member for Windsor—St. Clair. He has given an insightful and informed commentary on this legislation as he so often does. I respect his opinion immensely.

Bill C-292 is meant to bring about changes to the criminal code. It is aimed specifically at the issue of selling wildlife. The hon. member for South Surrey—White Rock—Langley has put a great deal of time, effort and passion into bringing this issue before the House of Commons. I applaud and salute her for that.

The bill would make it an offence to sell wildlife, wildlife parts, as well as threatened or endangered species. The bill's most noble purpose is to protect wildlife and, in particular, endangered species that are on the verge of disappearing from the planet.

The Speaker of the House is a great lover of animals. I suspect all members of the House of Commons and a majority of Canadians would embrace anything that would move towards protecting and ensuring the continued survival of these species, these important residents of the global village.

The intent of the legislation is to act in accordance with, not contrary to or not to supplement or in any way undermine provincial legislation. It is meant to work cheek and jowl with existing provincial legislation.

According to the member for South Surrey—White Rock—Langley, the bill is meant to cover acts not carried out with a licensed permit. It is not meant to apply to acts carried out with a licensed permit or exemption order. There is a specific attempt by the drafter to address the jurisdictional issue and the issue as it pertains to aboriginal peoples.

Bill C-292 would give provincial wildlife authorities and crown counsel the option to proceed by way of provincial wildlife legislation or with the new sections of the criminal code. The jurisdictional issue is there and is optional. It is within the discretion of the provincial crown to work in conjunction with police or wildlife enforcement officers.

Anyone convicted under the offence of the criminal code would be guilty of an indictable offence and subject to the maximum two year sentence on the first offence and three years of incarceration for a subsequent offence.

It was mentioned by the member for Windsor—St. Clair that there is some question as to whether we should amend the hon. member's legislation to make it a hybrid offence. Should we allow the expansion of the sentencing range that could be meted out? Surely there are greater and lesser offences as they pertain to wildlife. There is greater gravity in terms of the volume, the number of individuals and the number of animals affected by the offence itself.

If the animal in question were a threatened or endangered species, the maximum would increase to four years and eight years for subsequent offences. By giving a greater range of sentence it might have a greater degree of deterrent effect.

It is important to promote animal welfare which this does. The bill encompasses and embraces that sentiment. There are groups around the world doing good work, such as the World Wildlife Federation, Ducks Unlimited, many others. I am sure she will find great support within their ranks.

The point was well made that the world is expanding. We look at endangered species in all parts of the world, not just within the Canadian jurisdiction, but in the jungles of Africa, the oceans of the world, the fields, the forests, and in all regions. There is a larger responsibility that should be taken up by governments in every nation.

The legislation includes such activity as the enterprise of crime that sadly is happening at a disproportionate rate in some countries, wherein individuals are purposely targeting the sale of wildlife, whether it be hides, tusks, trophy heads or body parts. This is insidious greed and the motive behind much of the activity surrounding the sale of animal parts.

It is very timely that this legislation is coming forward. It is something that I certainly believe deserves greater examination at the committee level because it keys in on and enunciates in the criminal code a deterrent effect. It puts into legislation this type of specific crime.

As was noted earlier, the punishment scale is one that is important to examine and the author of the bill might consider this latitude and perhaps an examination of greater latitude. Making offences indictable might tie the hands of the prosecution when considering plea bargains as well as those of the sentencing judge when determining the appropriate measures that should follow. A balanced approach, I suggest, would be to make this a hybrid offence, giving the prosecution and the enforcement officers greater ability to bring about the deterrent and the desired effect with a greater latitude in sentencing.

The bill attempts to define the threatened or endangered species, which I think is an important substance to the bill. The author of the legislation seems to have taken, and I hope she takes no offence to this, a bit of a Liberal approach when giving the Minister of the Environment the ability to designate an animal or endangered species that is threatened. That is consistent with the species at risk bill. It may be an unintended effect that the hon. member has included in her bill, because the clause in essence states:

Where, after consulting with the Committee on the Status of Endangered Wildlife in Canada, the Minister...is satisfied that a species of wildlife is threatened with imminent extinction, the Minister may...designate the species to be...endangered--

The language contained in the clause needs to be tightened up. It needs to perhaps take away the sole power of the minister to make these decisions. It is one that is inconsistent with science and with the work that has been done at the committee level to date. The phrase “consulting with” seems ambiguous.

A change could be along the lines of replacing those words with the following: based upon the recommendation of the Committee on the Status of Endangered Wildlife in Canada, the minister may, by regulation, designate the species to be an endangered species for the purpose of this part. That, I suggest, would be more in keeping with what experts, scientists and those working in the field have recommended in relation to the current endangered species act.

Having said that, let me say that no private member's bill is perfect. Clearly no government bill is perfect. I think the hon. member is fully aware of the process and the opportunity that exists at committee level to address some of these issues. This is not to take away in any sense the merit and the value of the bill she has placed before the House. We do support a science based approach to the listing of species. Scientists, not politicians, are far better placed to decide which species are truly at risk.

I do want to refer in my remarks to the comments made by the member for Dauphin--Swan River, in particular when he spoke of the issue as it pertains to aboriginal people. I think he addressed the issue in a very straightforward way and the bill does encompass that approach. Its intent is to clearly indicate that it will not abrogate or derogate from any existing aboriginal treaty rights of aboriginal peoples in Canada who would be covered under the current situation.

The bill speaks to that issue. There has to be a clear approach for aboriginal and non-aboriginal Canadians when we are going to these extraordinary lengths of identifying the problem when it pertains to endangered species. In many cases the necessity to protect endangered species overrides having a specialized approach as it pertains to the treatment of animals in particular. There should be no exemptions and again that is perhaps something that should be examined. We should be hearing from the aboriginal community on that issue.

In conclusion, I support the hon. member's bill, as do members of the Progressive Conservative Party. We look forward to seeing the bill brought forward. We suggest and hope that all members of the House of Commons will similarly voice their support. She has brought forward a good bill with a straightforward objective. This is exactly the type of legislation that we should be dealing with in private members' business.

Criminal CodePrivate Members' Business

1:30 p.m.

Liberal

Julian Reed Liberal Halton, ON

Madam Speaker, I must issue a disclaimer at the beginning of this debate, that is, I am not a lawyer like my learned hon. friend from Windsor--St. Clair, the hon. member for Pictou--Antigonish--Guysborough, or my colleague, the hon. member for Notre-Dame-de-Grâce--Lachine.

However, the arguments I will be putting forward were prepared for me and will demonstrate that there are arguments to be made on both sides of this issue. I hope that the words I have to say will complement the argument put forward by the hon. member for Notre-Dame-de-Grâce--Lachine. We all may find we have differences of opinion here but that is to be found in any area of law.

The fact that illegal poaching is undesirable is not the issue. The issue is whether the bill in its present form is the most appropriate mechanism for addressing illegal poaching. To answer this question, it is necessary to identify the particular harm being addressed and then examine what it is about the current response to this harm that is lacking.

For example, is the problem one of inadequate penalties in provincial wildlife regulatory schemes? If that is the problem, then the solution can be addressed in that context by provinces adjusting their penalty regimes so that the fines imposed do not become the cost of doing business for poachers.

On the other hand, if the problem is that there is a gap in the law, it is necessary to identify the particular social harm that needs to be addressed. This in turn requires an assessment of whether the response required is one that in its essence is regulatory in nature or involves the creation of a true crime.

The Supreme Court of Canada, in the case of R v Wholesale Travel Group Inc., expressly recognized that:

...the common law has long acknowledged a distinction between truly criminal conduct and conduct, otherwise lawful, which is prohibited in the public interest--

Mr. Justice Cory expounded upon this distinction further and stated:

Regulatory legislation involves a shift of emphasis from the protection of individual interests and deterrence and punishment of acts involving moral fault, to the protection of public and societal interests. While criminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care.

Madam Speaker, you can tell by the way these words are constructed that they are not words of my creation. I am only an actor on this venerable stage.

In her remarks on May 9, the hon. member for South Surrey--White Rock--Langley suggested that in Bill C-292 the approach to selling wildlife is “very similar to the way serious motor vehicle offences are handled”. The hon. member went on to explain and stated:

The bill would give the provincial authorities an opportunity to determine when something is serious enough and they want to have steeper and stiffer penalties to try to stop it from occurring.

With all due respect to the hon. member, it is not accurate to suggest that a rationale for creating a criminal code scheme in respect of selling wildlife is similar to the interplay between driving offences in provincial legislation and those outlined in the criminal code.

For example, the offence in section 259 of the criminal code regarding the imposition of driving prohibition orders is not simply a provision that gives police access to penalties higher than those available in provincial legislation for driving while prohibited or disqualified.

The prohibition order provision in the criminal code has an independent rationale for its existence. It is logically related to sentencing objectives for a range of driving offences in the criminal code. These offences are not simply replicas of offences that exist in provincial legislation. The rationale for their existence is entirely consistent with parliament's exercise of its criminal law power. The offence of impaired driving causing death, for example, condemns morally blameworthy behaviour and addresses a well recognized social harm.

Although the issue has not yet been addressed by the Supreme Court of Canada, there is case law at the provincial appellant level which states that where an offence carries the possibility of imprisonment, the constitutionality of a provision outlining a criminal offence can be challenged on the basis that there is insufficient evidence of a reasoned apprehension of harm to other individuals or society to justify the use of criminal law as opposed to other less intrusive measures.

In this context it is not sufficient to suggest that the rationale for creating an offence at the federal level is to provide police with access to greater penalties for more serious cases of an activity that is regulated by a provincial scheme.

Bill C-292 does not have the appearance or elements of a true criminal law scheme. The scheme in Bill C-292 more closely resembles a regulatory scheme that is being proposed for inclusion in the criminal code. As noted by constitutional law expert 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 of the law. Typically, offences in the criminal code prohibit a particular morally blameworthy behaviour. The breadth of the offence may be circumscribed by reference to a defence such as without lawful excuse.

In the context of the criminal code, the application of an offence provision however usually does not rely upon whether a licence to conduct the prohibited activity has been issued by a federal or provincial authority. In this regard, Bill C-292 expressly provides that the offence provisions in respect of wildlife that is not a threatened or endangered species do not apply to persons who act in accordance with a licence issued pursuant to a federal or provincial statute or regulation.

Another feature of the criminal code offences is that they almost always apply to everyone. It is extremely rare for a criminal code to specify exemptions for criminal liability in respect of particular offences. Nonetheless it is extremely rare to specify exemptions that depend upon the exercise of discretion by a member of the executive branch of government.

In this regard I note that section 447.8 of Bill C-292 grants discretion to the Minister of the Environment to issue an order exempting “any person or class of persons” from “application of all or any” of the provisions in respect of a threatened or endangered species.

Section 447.8 of Bill C-292 states that the test for exercising this discretion is met if “in the opinion of the minister, the extension is necessary or in the public interest”. This provision may be at risk of being challenged on a constitutional basis on the reason that the criteria are so subjective and in general that they do not provide any real limits on the behaviour to be exempted. This feature is not at all typical of offence provisions in the criminal code.

While I commend the hon. member for her intent and her concern with regard to the bill, it really does not fit and scope in the area in which she intended.