Madam Speaker, I am very pleased to speak today to this issue. I want to explain first why it is that I am speaking to this issue.
For over five and a half years I was a full member of the justice committee and took a very active role in the issues of the justice committee. Having done that, I have always kept my eye out on the agenda of the justice committee so I could see what was going on in the justice committee, attend when I thought it was important, review the transcripts when I thought it was important and talk to my colleagues when I thought it was important.
When this particular bill in its original form came before the committee I was asked by the then chairman of the Liberal Party's rural caucus to attend the hearings, particularly because I am a lawyer and because I think that the then chair felt that I would take a look at this legislation in an objective manner.
I agreed to do that at the request of the then chairman and I did sit in on the committee hearings insofar as they pertained to Bill C-10. At that time it had two parts, namely the part respecting firearms and the part respecting the protection of animals. My remarks of course will be completely restricted to the part respecting the protection of animals.
As a member of the committee I was able to listen to evidence and to ask questions with respect to the evidence that we heard. We heard a lot of compelling evidence from a lot of people on different sides of the issue.
What was common to all people was that everyone wanted to make sure that animals were protected from unnecessary and cruel pain. I doubt very much if anyone in Canada would argue that it is perfectly acceptable to inflict purposeful pain on an animal.
However numerous legal issues had to be dealt with in respect of the provisions of Bill C-10 which dealt with the protection of animals. I want to mention a couple of the things that occurred while I was sitting on that committee and while I was reporting to the then chair of the Liberal Party rural caucus.
After listening to all the evidence we were talking about various amendments that might be able to go through. In late 2001, I wrote to the then parliamentary secretary to the minister of justice setting forth some friendly suggestions that I had to amend the bill to make it better, make it stronger, make it able to more easily protect animals while at the same time not being assailed by people because they thought it was somehow affecting their day to day livelihoods.
I just want to discuss a couple of the amendments that I suggested at that time. I will turn my attention to the very beginning of the bill. The bill in its form as passed by the House of Commons defined animal. It defined animal to mean “a vertebrate other than a human being and any other animal that has the capacity to feel pain”.
We heard compelling testimony from organizations such as the Poultry Welfare Coalition, the Canadian Veterinary Medical Association, the Association of Universities and Colleges of Canada, among others. A couple of those briefs made some recommendations to leave out that portion which said “any other animal that has the capacity to feel pain”, for a variety of reasons, including that there was no scientific unanimity on what animals have the capacity to feel pain, and that it would not be fair to litigate this ad nauseam in the courts with the attendant legal costs of calling scientific experts.
I recommended to the parliamentary secretary at that time that that particular definition be amended in the following way: “In this part, animal means a vertebrate other than a human being, whether privately owned or otherwise, which is hereby deemed to need protection from cruelty because it feels pain”.
The reason I did that was because those who were advocating changes wanted to link the concept of the protection of animals to the fact that they feel pain. I had no problem with that.
The point of my amendment was to say that vertebrates feel pain and obviously my amendment did not include animals that have the capacity to feel pain or may have the capacity to feel pain but are not vertebrates.
Interestingly enough, the bureaucracy at that time rejected that amendment outright. Lo and behold, the Senate held its hearings. What did it recommend as an amendment to the definition? It recommended that animal be defined as a vertebrate other than a human being. In effect, that is exactly what I recommended to the parliamentary secretary to the minister of justice and exactly what was rejected by the minister of justice at the end of 2001.
The Senate decided that the definition of animal should be limited to a vertebrate other than a human being. I applaud it for that for the reasons that I suggested that the amendment should proceed.
I see that the Minister of Justice now has moved a motion which reads:
That a message be sent to the Senate to acquaint their Honours that this House agrees with amendments numbered 1 and 5 made by the Senate to Bill C-10B, an act to amend the Criminal Code....
In fact, the Minister of Justice has now accepted an amendment which is exactly what I proposed at the end of 2001 and which was rejected. It just shows how ridiculously this place works. It is a shame that in many instances the bureaucracy cannot conceive of the fact that anybody but the bureaucracy can come up with an idea or with a suggested amendment that actually might make the bill better.
I am pleased to see that the Senate made the definition of animal to be that of a vertebrate other than a human being. I am glad to see that the Minister of Justice has finally seen the light and has agreed to that amendment years after I suggested it.
I have a second thing I want to talk about. I note that they are agreeing to some suggested amendments in the French version, and I have no comments on that. I do, however, want to comment on an amendment the Senate suggested to add to section 182.5.
The bill as passed had in it a protection, shall we say, of common law defences and the section as it passed reads as follows:
For greater certainty, subsection 8(3)applies in respect of proceedings for anoffence under this Part.
The document I am looking at is a document that says “Bill C-10B as passed by the House of Commons, October 9, 2002”.
Section 182.5 referred to subsection 8(3) of the Criminal Code. If we go to subsection 8(3) of the Criminal Code we see that it states the following:
Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act--
In other words, it is carrying on common law justifications or excuses. The debate at the time had to do with whether that was specific enough to allow the legal justification for the act, or that there was colour of right to do the act. Certain recommendations were made but they were rejected by the government to, shall we say, specifically state what the situation was.
I recommended to the parliamentary secretary that section 182.3 be amended in line 12, at that time, by adding “negligently or with legal justification, excuse or colour of right”. Why? To specifically remind people that legal justification or excuse or colour of right defences were allowed. The government said no.
Now the Senate has recommended that section 182.5 be amended to read as follows:
No person shall be convicted of an offence under this Part where he proves that he acted with legal justification or excuse or with colour of right.
Those were virtually my words at the end of November 2001. Obviously, since I agreed with them at that time, I agree with them now. The Senate was right in making this suggested amendment.
What does the government say with respect to this suggested amendment? It is interesting because the government agrees with the principle set out in amendment numbered 4, “namely, the desire to reassure Canadians that no defences are lost, but, because the wording of the amendment would codify a reverse onus by requiring an accused person to prove his or her innocence on a balance of probabilities”. The government thinks the latter is a bad idea and it proposes an amendment to replace section 182.5 with the following:
For greater certainty, the defences set out in subsection 429(2) apply, to the extent that they are relevant, in respect of proceedings for an offence under this Part.
I know I am talking legal jargon, but what does this mean? The Senate wanted to ensure that the defences of legal justification or excuse or with colour of right remain. Yes, the amendment does say “where he proves that he acted with legal justification or excuse and with colour of right”, and yes, that does put an onus on the defendant. The government, in its response, says that it agrees with the sentiment but not with the exact amendment of the Senate because it puts a reverse onus on the defendant.
If we look at the amendment proposed by the government, which no longer refers to subsection 8(3) of the Criminal Code but rather refers to subsection 429(2) of the Criminal Code, subsection 429(2) of the Criminal Code says:
No person shall be convicted of an offence under sections 430 to 446 where he proves that he acted with legal justification or excuse and with colour of right.
The government is proposing an amendment to put in the defences in subsection 429(2) because the Senate amendment reverses the onus and requires the defendant to prove this, yet the very section that the government is quoting to prevent this reverse onus calls for a reverse onus and requires that the defendant prove that he acted with legal justification or excuse and with colour of right.
I suggest that indeed the so-called problem that the Minister of Justice observed, which was the reverse onus problem, has not been solved by the government's proposed amendment because it has merely quoted subsection 429(2) of the Criminal Code which calls for a reverse onus on the defendant. While one possibly might agree with the government's rationale for not agreeing with the Senate amendment, the government's proposed resolution does not resolve it. In fact, it maintains the reverse onus on the defendant. I do not know what was going on when these responses were being prepared to the Senate's message, but I think somebody goofed.
I know that after fourteen and a half years I have become very cynical about this place and about how much ordinary members of Parliament are listened to, and in particular how much ordinary members of Parliament are listened to by the bureaucracy, which I dare say in my view is just about never.
I implore justice department officials to look at subsection 429(2), which clearly calls for a reverse onus on the defendant. How can they quote in their suggested amendment to protect against the reverse onus on a defendant a section which requires a reverse onus? It simply does not make logical sense. I am urging the government to look at that and thereby leave the amendment the way the Senate proposed the amendment. There is nothing wrong with the proposal that the Senate has put forward.
The final point I want to make about the Senate amendments concerns the third amendment. The Senate proposed in a particular section that a clause be added which reads as follows:
No person shall be convicted of an offence under paragraph (1)(a) if the pain, suffering, injury or death is caused in the course of traditional hunting, trapping or fishing practices carried out by a person who is one of the Aboriginal peoples of Canada in any area in which Aboriginal peoples have harvesting rights under or by virtue of existing aboriginal or treaty rights within the meaning of section 35 of the Constitution Act, 1982, and any pain, suffering or injury caused is no more than is reasonably necessary in the carrying out of those traditional practices
The clear intent of that amendment is to protect the traditions of our aboriginal peoples. I want to give two potential examples. Suppose aboriginal people go out to hunt caribou and choose for reasons best known to them to use a spear or bow and arrow as opposed to a high powered hunting rifle. Suppose that the arrow hits its mark but does not kill the caribou immediately. That caribou may, obviously in pain, travel across the tundra for some period of time with the hunter following it until it drops and dies. That example has been the way of life of the aboriginal people since time immemorial. They are afraid that the bill might cause someone to be charged for inflicting unnecessary pain and suffering on such an animal.
Let us take another example. A trapline is set for a beaver and it gets caught in the trap. It can either chew its foot off, which would be terribly painful, or starve to death or die of thirst in the trap because the hunter only visits the trapline once every week. Would that be chargeable? That is also something that has been done for millennia in different ways and I can see why the aboriginal peoples would be concerned that some overzealous person might lay a charge under these particular amendments.
This is clearly why this amendment is there. I do not care for different laws for different folks. All Canadians should be bound by the same laws, but if there were traditional rights or aboriginal rights that precede Canada, they would have to be honoured. I do not have a problem with that. What does the government say in response to this? The government says that it:
Disagrees with amendment numbered 3 because it is unclear and creates confusion about whether the intent is to create a different test for liability of aboriginal persons and because there is no clarity as to what “traditional practices” are and how law enforcement can be expected to act accordingly;
This is a ridiculous comment because the government says there is no definition of traditional practices, but we have countless examples in the House of the government amending the Criminal Code without defining certain words. I will not even bother getting into it because the history is well known, but it does not seem to trouble the government when it feels like it to put in amendments to the Criminal Code without defining certain words. Of course it would be up to the circumstances of each particular case to determine whether a particular aboriginal group had a pre-existing or section 35 or treaty right to do what it did if it were charged with cruelty to animals.
That must decided on a case by case basis. It clearly is dependent on the facts of the case. To say that we need a definition of certain words or to say that it is unclear in my view is simply disingenuous. I fully support the protection of animals from undue cruelty. I fully support Bill C-10 and the Senate amendments that I have mentioned do strengthen the bill and I support them.