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.