That a message be sent to the Senate to acquaint their Honours that, with respect to Bill C-10B, An Act to amend the Criminal Code (cruelty to animals), this House continues to disagree with the Senate's insistence on amendment numbered 2 and disagrees with the Senate's amendments numbered 3 and 4. This House notes that there is agreement in both Houses on the need for cruelty to animals legislation to continue to recognize reasonable and generally accepted practices involving animals. After careful consideration, this House remains convinced that the Bill should be passed in the form it approved on June 6, 2003.
(1) This House does not agree with the amendment numbered 2 (replace “kills without lawful excuse” with “causes unnecessary death”), on which the Senate is insisting. This House is of the view that the defence of “without lawful excuse” has been interpreted by the case law as a flexible, broad defence that is commonly employed in the Criminal Code of Canada. It has been the subject of interpretation by Courts for many years, and is now well understood and fairly and consistently applied by courts in criminal trials. This defence has a longstanding presence in the Criminal Code, including being available since 1953 for the offence of killing animals that are kept for a lawful purpose. The House is convinced that the defence of “lawful excuse” offers clear and sufficient protection for lawful purposes for killing animals. There are no authorities that suggest that this defence is unclear or does not cover the range of situations to which it is meant to apply. For all of these reasons, this House remains convinced that maintaining the defence of “lawful excuse” in relation to offences for killing animals continues to be the best and most appropriate manner of safeguarding the legality of purposes for which animals are commonly killed.
The House disagrees with the Senate that the proposed amendment would provide better protection for legitimate activities. The House is of the view that the amendment would not bring any added clarity, and would give rise to confusion. The term “unnecessary” has been judicially interpreted to comprise two main components: (a) a lawful purpose for interacting with an animal, and (b) a requirement to use reasonable and proportionate means of accomplishing the objective (i.e. choice of means that do not cause avoidable pain). Only the first part of the legal test for “unnecessary” is relevant to offences of killing, namely whether there is a lawful purpose. It has been the law for many decades that persons who kill an animal without a lawful excuse are guilty of an offence. It has also been the law since 1953 that if they kill the animal with a lawful excuse, but in the course of doing so cause unnecessary pain, they are guilty of a second, separate offence. To collapse the elements of these two different offences into one will invite a re-interpretation of the well-developed test of “unnecessary” and will add confusion, rather than clarity, to the law.
(2) This House does not agree with the modified version of amendment numbered 3 (creating a defence for traditional aboriginal practices), on which the Senate is insisting. This House appreciates the recent clarification of an ambiguous component of the amendment, and agrees with the Senate that traditional aboriginal practices that cause “no more pain than is reasonably necessary” should be lawful. However, this House does not agree that the proposed amendment is necessary. Aboriginal practices that do not cause unnecessary pain are not currently offences and will not become offences under the Bill. This House believes that the Bill, as worded, already achieves the objective sought by the Senate.
This House remains convinced that creating a defence for this purpose is not legally necessary and may create unintended mischief. Any act that has a legitimate purpose and does not cause unnecessary pain does not fall within the definition of the crime, and cannot be the subject of an offence. A defence only applies where the conduct actually falls within the definition of the crime and is excused for other reasons. It is illogical and confusing to create a defence for actions that do not constitute a crime. More specifically, as causing unnecessary pain is not a crime, it is not meaningful to create a defence for Aboriginal persons who cause no more pain than is reasonably necessary. In addition, there is no need to mention aboriginal practices specifically; the law is already flexible enough to consider all fact situations and contexts.
The House remains convinced that the wording and effect of the amendment are ambiguous and unclear. For example, there is no clarity as to what “traditional practices” are in the criminal law context and whether there is sufficient clarity to guide the police in their law enforcement duties. In the absence of a demonstrated need for clarification in the law, this amendment could also create mischief by generating a different test for liability for Aboriginal persons. This House does not believe that the law would be improved by creating a defence that is legally unnecessary and has the potential to confuse, rather than clarify, the interpretation of the offences.
(3) This House does not agree with the amended version of amendment numbered 4 (the defences in subsection 429(2)). The defences of legal justification, excuse and colour of right set out in subsection 429(2) of the Criminal Code are applicable to a multitude of different kinds of offences including offences of animal cruelty. The defences apply differently depending on the elements of the offence under consideration. The phrase “to the extent that they are relevant” is included to indicate to the courts that the Bill is not intended to change the defences that are currently relevant to animal cruelty offences, or the way that they apply. It makes clear that the intention is to maintain the current availability and interpretation of defences, and not to alter it. This phrase sends a clear message to the courts that in any and all cases where the defences are currently relevant, they continue to be. Whether a particular defence is relevant will depend on the specific circumstance of each case. The phrase guarantees an accused access to these defences when they are relevant; it does not in any way limit access to defences that are relevant on the facts of the case. For these reasons, the House does not agree with the amended amendment proposed by the Senate.