Debates of June 21st, 2002

Canada Pension Plan

[The Acting Speaker (Ms. Bakopanos)]

Does the House give its consent?

[Some hon. members]

Agreed.

The House resumed from May 31 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 Code

[John Harvard, Liberal, Charleswood—St. James—Assiniboia, MB]

Madam Speaker, I am pleased to speak today to Bill C-292, an act to amend the criminal code, selling wildlife.

I would like to take this opportunity to address some of the remarks made in the House of Commons on May 9 when this bill was debated. It is not helpful to the debate to suggest, as one hon. member did on that occasion, that anyone who does not support the bill is voting against saving wildlife.

The fact that illegal poaching is undesirable is not the issue. The issue is whether this 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 that is being addressed and then examine what it is about the current response to that harm which 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.

If, on the other hand, 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 has expressly recognized that 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 the 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.

In her remarks on May 9, the sponsor of Bill C-292 suggested that the approach in her bill to selling wildlife is very similar to the way serious motor vehicle offences are handled. The hon. member went on to explain that the bill would give 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, 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 higher penalties 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.

Bill C-292 does not have the appearance and 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, 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 of the law.

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, I note that 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 criminal code offences is that they almost always apply to everyone. It is extremely rare for the criminal code to specify exemptions for criminal liability in respect of particular offences. The exemptions set out in sections 204 to 207 inclusive of the criminal code relating to the gaming offences in part VII of the code, are a notable exception to the usual rule against exemptions. Nonetheless, it is extremely rare to specify exemptions that depend upon the exercise of discretion by a member of the executive branch of government.

Clause 447.8 of Bill C-292 states that the test for exercising this discretion is met “if, in the opinion of the Minister, the exemption is necessary or in the public interest”. This provision may be at risk of being challenged on a constitutional basis on the reasoning that the criteria are so subjective and 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.

It is also rare in the criminal code context to have a member of the executive confer with an advisory body in order to determine whether the subject matter of the offence, in this case wildlife, falls within a particular category. In this regard I note that subclauses 447.7(1) and 447.1(2) respectively give the Minister of the Environment the discretion to determine whether a species of wildlife is an endangered or threatened species.

Before making a designation of this nature, however, the Minister of the Environment must consult with the committee on the status of endangered wildlife in Canada. Again, this kind of provision is entirely in keeping with a regulatory scheme that has a broad, public welfare goal, such as preserving wildlife.

This brings me to another aspect of Bill C-292 which is not in keeping with the general approach to penalties in the criminal code. Bill C-292 sets out different maximum penalties for the offences in clause 447.2 depending upon whether the animal involved is wildlife as opposed to either a threatened or endangered species.

As I have just indicated, the determination of whether an animal is a threatened or endangered species would not be set out in the criminal code but would be set out in regulations and would be determined by the Minister of the Environment in consultation with a committee. Usually in the criminal code all the criteria for determining an applicable maximum penalty are set out in the criminal code itself.

Again, the more an offence provision moves away from determining penalties on the basis of the criminal culpability of the accused, the less likely it is to resemble a true criminal code offence.

In closing, I would like to reiterate that there is a distinction between the objectives of legislation and the mechanics of the legislation itself to achieve an objective. In respect of Bill C-292, I respectfully suggest that the objective of the bill is not entirely clear. It is not sufficient to simply suggest that illegal poaching is undesirable. I think the challenge is to determine what it is about the current response to illegal poaching that is problematic and then decide whether a response to this problem is most appropriately dealt with pursuant to parliament's exercise of its criminal law power. If so, I think more work needs to be done to ensure that the offences in Bill C-292 are more consistent with other provisions in the criminal code and do not conflict with other federal schemes which regulate wildlife.

I would like to thank hon. members for their attention on this important issue.

[Ken Epp, Canadian Alliance, Elk Island, AB]

Madam Speaker, it is my pleasure to rise in debate on Bill C-292 put forward by my colleague.

Before I begin addressing the subject, I thought of something just as we began this private members' business hour today and that is that I wish our standing orders would be changed. Somehow it seems to me to be somewhat contradictory that while we agree that no one here ever says anything that is not true and while we are talking about increasing the ethics in this place, quite regularly we agree to an outright lie, and that is to see the clock as something that it is not. I wish the standing orders would be changed so that instead of saying that we see the clock as something that it is not, we would say we agree to proceed to private members' hour, notwithstanding that it is not at the usual time at which we go to private members' hour. That is just something that occurred to me while I was sitting here. I guess it is that we have been so totally consumed with the issue of ethics, honesty, truth and so on that this thought should go through my brain at this time.

We are here to talk about a votable private member's bill. I would like to congratulate my colleague from South Surrey--White Rock--Langley, not only for having her bill drawn but also for having it made votable, both of which, in our environment here, are akin to winning the Lotto 649. I guess I am somewhat envious of her since I have said many times in the House how sad I feel about myself and this whole time as an MP never once having had a bill drawn. It could well be that in the next five or six years I will cease being an MP and I will have had 15 years in this place without ever having had a private member's bill drawn. Would that not be sad? Of course, that is now being changed. That is also a little digression.

Bill C-292 is a bill that my colleague brought forward as a result of some occurrences in her province of British Columbia, where individuals were caught just outright plain trading for profit by killing wild animals, that is, animals that are not domesticated animals, and profiteering from them.

When we look at this issue across the world we see that it is an issue of considerable importance. I think, for example, of the many species, some in Africa. I think of the fact that it has become illegal now to shoot an elephant just to gather its tusks. There are other animals around the world that are at risk because of the fact that human beings, for whatever reason, think it is acceptable to take the life of that animal even though but a small portion of it is used. I have heard of people who kill an animal just to take its tongue or its gall bladder or various other parts. I will not get into the gruesome details. The rest of the animal is not utilized. It seems like a violation of a sense of nature that this should be done so flippantly and so carelessly.

Therefore, I commend my colleague for bringing forward the bill as a result of an incident or two that occurred in her province where she saw a need for legislation to be strengthened.

One of the issues in the bill is that the penalties would be increased. Also, they would be increased in proportion to the number of occurrences. In other words, when people are caught the first time they will receive a very stern warning that what they have done is not acceptable, it is wrong, it is illegal and they will be told what the punishment is. However, if people, after paying their fines or serving their time in prison, are caught a second time, the penalties substantially increase.

I think that is a very good principle on which to operate, namely, that we recognize that the purpose of legislation and the purpose of criminal law is to deter the behaviour, a phrase which I use altogether too often. I know that next fall we will have a new set of pages and hopefully soon we will have a new set of people in the government, so we will have different people who will hear this.

Too often in my speeches I say there is not a law that we can pass that can make people good. The purpose of the law is to deter those who would do evil. Here we have a law with penalties that should deter an action which we consider to be wrong, immoral or evil. We do that with other things citizens in this country are prone to do which we want to discourage. We have it for all sorts of different offences.

The fact of the matter is that if a person is apprehended for committing an illegal act, pays the penalty and then does it again, it makes us think that perhaps the penalty was not high enough. Maybe it was not a large enough fine. Maybe the time in prison was not long enough. It makes eminent sense to increase the penalty for the second offence.

Just as a little sidebar, I thought we should apply this in our laws to prohibit speeding. I was amazed to find the huge disregard for speed laws in the province of Ontario. I did not hang around this province a great deal until I was elected. I have rented a car on a number of occasions and I find that on the highways in this province the speed is out of control.

This is a real sidebar. While I was driving along one of the highways just a couple of weekends ago, I clocked people who were passing me. In the 100 kilometre per hour zone, most of them were going 130 kilometres per hour. I clocked one woman in a van going 155 kilometres per hour. When I say I clocked her at 155 kilometres, I did not drive alongside her to see how fast she was going, in which case I would have been guilty of the same. No, Madam Speaker, you will remember that I am a mathematician and I have a way of computing that speed very accurately while still holding my own speed. If anyone needs to know about that, if anybody is interested in a math lesson, I can teach them how to do that with a very simple stopwatch that I have with me all the time.

I have often thought that to control speeding we should have a sliding scale of penalties. The penalty I proposed was the square of the amount by which we exceed the speed limit. If we exceed it by five kilometres per hour, five squared is 25, so our fine is $25. If we exceed it by 10 kilometres per hour, 10 squared is 100, so our fine is $100. If we exceed it by 15 kilometres per hour, 15 squared, as everybody knows, is 225 so that is the fine. It just keeps going up until we exceed it by 50 kilometres per hour, which many of these people were doing the other day on the highway, and the fine would be $2,500 for those going 150 in a 100 zone.

The principle of a scaled penalty, that is, the greater we break the law the greater the penalty, is a good one. If we broke the law and the penalty did not deter us and we got caught again, we did not learn our lesson so the penalty should be increased. I propose that for the second offence all of these penalties would be multiplied by two, and for the third offence, multiplied by three, and so on. We would come up with a very simple scale and eventually everybody would drive at the speed limit because they could no longer afford the penalties.

The same thing is true here. The hon. member has proposed in the bill that for second offences those penalties should be greatly increased. That is a very fine principle, one which I would certainly support.

In conclusion, I simply would like to say that incorporated in the bill are a number of really good ideas. The intent is to prevent people who, due to the lack of a penalty, the lack of legislation, the lack of serious penalties for this behaviour, will do it because they can make money with it. The proposal here is to put fines up to $150,000, I think. These are serious penalties so that those who are in the business of taking animals from the wild, trading them and making huge amounts of profit would be deterred from actually doing it, that being the ultimate purpose of such a law.

Thank you very much, Madam Speaker, for the opportunity of participating in the debate on this final Friday afternoon of the spring session. I, too, give to you, to the others in the Chair and to all my colleagues, my wishes for a very good and restful summer. To all of the pages, I wish to say have a great time the rest of your life and thank you.

[The Acting Speaker (Ms. Bakopanos)]

I thank the hon. member.

Pursuant to order made earlier today, all questions necessary to dispose of the second reading stage of Bill C-292 are deemed put, and a recorded division is deemed demanded and deferred to the end of the time provided for government orders on Wednesday, September 18, 2002.

It being 1.21 p.m., the House stands adjourned until Wednesday, September 18, 2002 at 2 p.m. pursuant to Standing Orders 28(2) and 24(1), and the order made on Tuesday, June 18.

Dear colleagues, I wish everyone a very happy and joyous summer. To the pages and the clerks, thank you very much for a job well done.

(The House adjourned at 1.21 p.m.)

The first session of the 37th Parliament was prorogued by royal proclamation on September 16, 2002.