Paul MacKlin

[Questions on the Order Paper, June 6th, 2003]

Mr. Speaker, Question No. 226 will be answered today.

[Government Response to Petitions, June 6th, 2003]

Mr. Speaker, pursuant to Standing Order 36(8) I have the honour to table, in both official languages, the government's response to 46 petitions.

[Order in Council Appointments, June 6th, 2003]

Mr. Speaker, I am pleased to table, in both official languages, a number of order in council appointments made recently by the government.

[Justice, June 6th, 2003]

Mr. Speaker, we certainly do care about everyone driving on our highways and we are concerned about the safety of Canadians. We are interested and a modernized drug strategy is coming forward to reduce the harm for Canadians generally. If we look at the Criminal Code right now, it is and has been in place to protect the public from those who drive while under the influence of drugs.

[Act to Amend the Criminal Code (Cruelty to Animals), June 6th, 2003]

Mr. Speaker, I am pleased to rise today to introduce the debate on the amendments made in the other place to Bill C-10B, an act to amend the Criminal Code with respect to animal cruelty.

Bill C-10B received third reading and was passed in the other place on May 29. After careful study and reflection, five amendments were adopted. One amendment is a minor housekeeping amendment and four reflect more substantive changes. The House now has an opportunity to consider and vote on these amendments. I will briefly summarize these amendments.

The housekeeping measure corrected a word in the French text of the proposed section 182.6, which deals with injury to police animals and was a provision put into Bill C-10B by the justice committee of this House. The French text had a small error, in that it used the word aux where the word des should have been used. The government supports the correction of this error.

The second amendment would abbreviate the definition of animal contained in Bill C-10B. The definition of animal was “a vertebrate, other than a human being, and any other animal that has the capacity to feel pain”. The amendment made in the other place would cut off the definition after “other than a human being” so that it would include vertebrates, but not “any other animal that has the capacity to feel pain”. The current sections of the Criminal Code that deal with animal cruelty do not contain a definition of animal. It is therefore a term capable of extending to all manner of animal life, including many invertebrates.

The original definition in Bill C-10B was drafted with a view to bringing some clarity and certainty into the law by clearly enunciating that vertebrates were included. It was also designed to achieve maximum flexibility in respect of animals that are not invertebrates. The original definition would have allowed the Crown to prosecute a case in respect of a non-vertebrate if it was prepared to meet the burden of proving beyond a reasonable doubt that the animal had the capacity to feel pain.

The science of animal physiology is evolving and will continue to evolve. This element of the definition allowed the law to continue to evolve with the science. The policy rationale was clear. Any animal that is of a species that has the capacity to feel pain should be protected from the infliction of pain that is not necessary. The amendment would foreclose the possibility of any charge in relation to an invertebrate. It chooses maximum certainty of the definition, all vertebrates and only vertebrates over flexibility in the law. This is not the choice that the government made. The government can understand the preference for certainty over flexibility and so the government is prepared not to oppose this amendment.

The third amendment reflects a concern that defences in subsection 429(2) of the code were being taken away. This amendment has replaced section 182.5 which expressly refers to subsection 8(3) of the Criminal Code which preserves all the common law defences. The justice committee of the House added section 182.5 during its study of Bill C-10B. The amendment would replace the reference to subsection 8(3) with a reproduction of a smaller set of defences that is currently in subsection 429(2) of the Criminal Code. Section 182.5 now reads:

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.

The intent of this amendment was to reassure Canadians that the specific defences in subsection 429(2) would not be lost in Bill C-10B.

In fact, even if no express reference is made to “legal justification or excuse with colour of right”, those defences are common law defences and captured by subsection 8(3) of the Criminal Code. Therefore, this amendment is not legally necessary. Those defences are available to any accused charged with any offence and they do not need to be rewritten into every section of the code in order for them to be available.

The very existence of a subsection like 429(2) creates the kind of confusion that has led to this concern. This is an old subsection that was enacted before the charter in order to reverse the burden of proof for certain common law defences in the case of certain offences. Reversing the burden of proof means that the accused must prove that the defence applies. Normally the Crown must prove beyond a reasonable doubt that defences raised by the accused do not apply. Today, in the post-charter era, we know that in all likelihood the reverse onus is unconstitutional because it could result in a conviction despite the existence of a reasonable doubt about the accused person's innocence.

The historical purpose behind subsection 429(2--to reverse the onus of proof--is no longer acceptable in the charter era. However, its continued existence has caused some to have the misleading impression that the words must be present in order for the defence to be available.

The absence of express reference to these defences was not an oversight in Bill C-10B. On the contrary, by not reproducing the defences the bill would ensure that all of the common law defences of subsection 8(3) would be applied without any possibility of a reverse onus. The bill tried to eliminate the confusion caused by subsection 429(2).

However, some people continue to fear that the absence of the words could result in a court finding that the defences are no longer available. The government can understand the desire to reassure Canadians, who may perhaps not be familiar with such intricacies of the criminal law, and who may fear that the removal of reference to these defences could lead to their loss of application. The amendment made by the other place was meant as such a reassurance. It does not change the law nor provide any new protections.

Although the government can understand the goal of reassuring Canadians, the manner in which this has been accomplished is unsatisfactory for two reasons. First, it reintroduces the reverse onus with the words “if he proves that”. This would require an accused to prove his or her innocence on a balance of probabilities, a burden that the accused should not have and would not have in the absence of the amendment.

It is almost certainly an unjustifiable violation of the presumption of innocence. Most provisions in the Criminal Code introduced after the charter do not have this reverse onus because the courts are likely to find that it violates the charter. It is poor law reform to introduce a provision that, on its face, likely violates the charter.

The second reason the government does not support this wording is because it would give rise to a degree of uncertainty about whether the full body of case law decided under subsection 429(2) would continue to apply. It would certainly be desirable to signal to the courts that the old case law should continue to apply. This is important both in terms of the application of case law that interprets the meaning and scope of these defences, and in relation to some case law that already suggests the reverse onus in subsection 429(2) is unconstitutional and of no force or effect.

The government therefore proposes an amendment to the amendment with slightly different wording that would accomplish the very objectives sought by the other place, and at the same time, would avoid the constitutionality problem of reverse onus. In addition, the government's amendment would signal more clearly to the courts that the old case law should continue to apply.

The government's reworded provision would read as follows:

182.5 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.

By referring directly to subsection 429(2), this formulation has the advantage of ensuring that all the case law decided under the provision continues to apply, including case law that deals with the constitutionality of reverse onus in that subsection.

I urge the members of the House to reject the amendment before us and approve the government's motion to amend the amendment.

On the topic of this amendment I would like to make two final points. First, I wish to repeat that this amendment is not legally necessary. There was no oversight in the bill as originally drafted. On the contrary, the legislation was carefully crafted to try to minimize the kind of confusion and concerns that have been expressed by removing reference to defence provisions that are redundant and contained a reverse onus. This is a comfort clause designed to reassure Canadians that defences that used to apply will continue to apply.

As a last point on this issue, I would like to also be clear that the defences referred to in subsection 429(2) do not provide a specialized protection for industry uses of animals. There is still a fair amount of confusion about what these defences mean and how they work, especially the defence of colour of right. I wish here to be clear so that all Canadians understand the scope and reach of the law.

Hunters, farmers, animal researchers and veterinarians do not need to invoke any defences to justify their activities. It is only the wilful, reckless or criminally negligent infliction of pain that is avoidable and unnecessary that amounts to a crime. The government believes that the vast majority of all industry participants take great care to cause no more pain than is required to meet their objectives. Where this is the case, there is no cruelty and there is no crime. The humane use of animals is simply not a crime.

The Ménard case, the leading case on animal cruelty, makes perfectly clear that in the industry setting, causing only necessary pain is not a crime. However, where more pain than is reasonable or necessary is knowingly caused, these defences do not provide an additional layer of legal protection. Cruelty is cruelty wherever it takes place.

The defences are therefore not needed to shield industry personnel. However these defences may in exceptional circumstances be relevant, for instance, where people cause harm to an animal because the animal was attacking them or their property. Colour of right is simply the excuse of mistake. It could apply, for instance, where people euthanized an animal that they believed to be their pet but which actually was not their pet. These defences have a very limited scope.

The fourth amendment deletes the offence of “killing without a lawful excuse” and adds the notion of “causing unnecessary death” to the offence of causing unnecessary pain or suffering to an animal.

The government opposes this amendment because it is problematic for several reasons. It may be intended to clarify that certain activities, such as hunting and fishing, are lawful but in fact it brings greater uncertainty into the law.

Bill C-10B makes it an offence to kill an animal without lawful excuse. The phrase “without lawful excuse” is well understood in the case law and the Supreme Court has clarified that it is a broad and flexible term to be understood in the context of the offence. It is broad enough to encompass commonly accepted reasons for killing animals such as hunting and euthanasia. This term is currently in the offence of killing kept animals and the courts have not shown any difficulty in interpreting its content or scope.

The amendment would take away the term “without lawful excuse” and instead qualify “killing” by the word “unnecessary”. This is illogical and would lead to confusion. The term “unnecessary” has been judicially interpreted in the context of “pain”. In essence, it means “no more pain than is reasonably necessary taking into account the objective sought”.

This interpretation of the word “unnecessary” cannot logically be applied to killing where the only relevant question is whether or not there was a good reason for killing.

The amendment would delete “without lawful excuse”, which is a well-known and well understood concept in the context of a killing offence, and would replace it with the term “unnecessary”, the interpretation of which does not make sense when applied to killing.

This would surely lead the courts to question what the intent was and could lead to a reinterpretation of the elements of the offence.

There is yet another reason for rejecting the amendment. For decades it has been Parliament's intent that there be two distinct offences, one of causing unnecessary pain to an animal and one of killing an animal without lawful excuse. The blameworthy nature of each type of act is quite different. Killing one's neighbour's dog humanely but without good reason is something very different from torturing an animal.

However, the amendment would collapse these two offences into one single offence. This could lead to confusion about the elements of the offence and be problematic for police and prosecutors who need clarity in terms of which offence to charge and what elements to prove. For these reasons the government opposes the motion and urges the House to reject it.

The final amendment would add a new subsection 182.2(3) which would create a defence for aboriginal persons who carry out traditional hunting, trapping or fishing practices in any area in which aboriginal peoples have harvesting rights under section 35 of the Constitution Act, 1982, where pain caused is no more than is reasonably necessary in the carrying out of those traditional practices.

The government opposes the amendment for several reasons. First, the amendment is not necessary. It was made in response to concerns that aboriginal persons would be subject to undue risk of prosecution for their traditional practices.

Aboriginal persons are not at risk of prosecution or conviction for any activities that are humane and cause no more pain than is necessary. In addition, aboriginal persons have all the protection of section 35 of the Constitution Act, and in any case they can raise the claim that the law violates their protected rights.

In addition to being unnecessary, the amendment is extremely problematic in the way it is drafted. There was substantial confusion in the other place about the effect of the words. Although five members of the Senate legal and constitutional affairs committee voted for the amendment, two opposed and five abstained.

Concerns were expressed that the amendment would create an inappropriate reverse onus on aboriginal people. Others were concerned that it was over broad because, the way it is written, it would allow an aboriginal person from one geographic region to go to any area where aboriginal peoples have rights and claim the defence. This would allow aboriginal persons to claim the benefit of the defence based on the rights of another group of aboriginal persons.

There is also some confusion and uncertainty about what “traditional practices” are. Would those be the same as practices that are protected aboriginal rights under section 35 of the Constitution, or would they be something else?

Concern was also expressed about how difficult it would be to expect the police to know what are traditional practices before laying a charge. It is difficult to know whether this provision would be practically enforceable.

In the other place the intent was to ensure that aboriginal persons were subject to the law just as other Canadians are. However some were concerned that the wording would create an exemption. We cannot be certain how the courts would interpret the provision. If the same rules and standards are meant to apply to aboriginals as to non-aboriginals, then courts may wonder what the purpose of the clause is.

For all the above reasons, the government urges the members of the House to vote against the amendment. It is confusing and its scope and effect are uncertain, and it is simply unnecessary.

Aboriginal peoples who treat animals in humane ways are not being cruel and therefore not at risk of prosecution or conviction.

The government would once again like to thank the other place for all its hard work and dedicated study of this complex and important legislation.

I strongly urge all hon. members to vote in favour of the amendment which corrects a word in the French text, to vote against the amendments that deal with the offence of killing without lawful excuse and a special defence in respect of aboriginal persons, to vote against the amendment that deals with colour of right and in its stead vote in favour of the government's motion to amend that particular amendment in a manner that is constitutional and better captures the existing case law.

On the amendment that deals with the definition of “animal”, the government neither supports nor opposes it.

[Statutory Instruments Act, June 4th, 2003]

Mr. Speaker, I am very pleased to speak to the bill today, which relates to the important responsibilities that parliamentarians have to oversee the exercise of the delegated law-making powers.

For the past 30 years these responsibilities have in large part been discharged by the Standing Joint Committee for the Scrutiny of Regulations. It has performed an invaluable service to the House and to the Canadian public in its review of statutory instruments made under acts of Parliament.

The committee examines thousands of statutory instruments each year and carefully notes any concerns they raise in terms of the committee's review criteria. These criteria focus on legal concerns rooted in the rule of law and the Canadian Constitution, particularly the Canadian Charter of Rights and Freedoms.

The committee carefully and diligently pursues its concerns and deals with the concerns of the authorities entrusted with that power to make regulations and other statutory instruments.

One of the ways of ensuring that its concerns are addressed is through the disallowance procedure in chapter XIV of the standing orders of the House. These procedures have worked well. The government has complied with all eight of the disallowance resolutions adopted by the House.

I fully support the principles of parliamentary scrutiny of regulations underlying Bill C-205, as well as the need to recognize the disallowance procedures in law.

However, as I noted during the last session in the debate on Bill C-202, it gives rise to a number of concerns. These concerns have to do with how disallowed regulations are to be revoked, particularly the timeframe for revocation and the challenges it might pose for the making of replacement regulations to fill gaps that may be left by this revocation. I also noted concerns about ensuring proper public notice of revocation and extending the disallowance procedures to statutory instruments made by non-ministerial bodies.

Finally, I drew the attention of the House to the absence of a role for the other place in the disallowance resolution.

Today we have before us a proposal to substitute another bill for Bill C-205. I am pleased to say that the new bill addresses the concerns that I previously mentioned.

I would like to point out that the government is committed to ensuring that parliamentarians have an effective role in overseeing the exercise of delegated legislative powers. Not only has it implemented the eight resolutions under the existing disallowance procedures in the standing orders, the government recently amended the cabinet directive on law making, which is available on the website of the Privy Council Office.

The amendment addresses the treatment of concerns raised by the Standing Joint Committee for the Scrutiny of Regulations. It establishes a series of requirements for government departments, which is extraordinarily important in the process of governance.

They are to have one or more designated persons to whom the standing joint committee may address its inquiries. All inquiries are to be coordinated by a departmental tracking office to facilitate timely responses to all correspondence from the committee. Each department is to establish appropriate timelines for responding to inquiries. If a time line cannot be met, the committee is to be advised of the need for an extension. If an inquiry involves a legal issue, the department's legal services unit is to be consulted. Each deputy minister is to receive a status report from their departmental tracking office on a regular basis. A copy of the status report is to be provided to the minister's office.

I believe that these procedures will go some distance toward improving the government's accountability to Parliament on regulation making.

These steps that have been taken clearly demonstrate the government's commitment to the principles underlying the parliamentary scrutiny of regulations. It is extraordinarily important and I urge the adoption of the bill.

[Business of the House, June 2nd, 2003]

Mr. Speaker, discussions have taken place among all parties, as well as with the member for Leeds—Grenville, concerning the recorded division scheduled for next Wednesday on Motion No. 385.

I believe you would find consent, Mr. Speaker, for the following:

That the recorded division scheduled for Wednesday, June 4, 2003 on Motion No, 385 be taken on Tuesday, June 3, 2003 at 3 p.m.

[Energy, May 26th, 2003]

Mr. Speaker, I rise today with regard to a project that is critical not only to Canada's place as a world leader in research and innovation, but also to our quest to find a plentiful and sustainable source of energy for the planet.

The ITER, or international thermonuclear experimental reactor project, is the next step in fusion power research. Should the Canadian bid to host ITER be successful, our country would host 250 of the world's top nuclear scientists and reap the benefits of an $18 billion, 30 year project being located in the Durham region.

This week, along with the hon. member for Durham, I am pleased to welcome representatives of the Durham community and ITER Canada to Ottawa to bring this critical project to the attention of hon. members.

I ask all hon. members to join me in supporting this remarkable project that is the next step in ensuring a clean, sustainable supply of energy for generations to come.

[Justice, May 16th, 2003]

Mr. Speaker, clearly children are a priority for this government and anything that we possibly can consider will be taken into consideration.

I am sure that the minister at the next federal, provincial and territorial meeting will raise this issue and see if there is some possibility that we might be able to implement something of that nature.

[Olympics and Paralympics, May 16th, 2003]

Mr. Speaker, my constituents and I would like to congratulate and thank the Vancouver 2010 Bid Corporation for its continuous hard work to win the right to host the Olympic and Paralympic Winter Games in 2010. Canada is still competing against Austria and South Korea to host the world in 2010 and in this Olympic competition there is only one medal.

We have a great team made up of great players and I know we can win the gold for Canada. The team, led by Mr. Jack Poole, includes volunteers and governments, first nations and athletes, the Canadian Olympic Committee and the Canadian Paralympic Committee, and leaders from the business and finance communities from right across the country. We thank them for their good work.

The Vancouver 2010 Olympic and Paralympic bid is a true Team Canada project. I ask members to please join the citizens of my riding in congratulating the Vancouver 2010 Bid Corporation for its success to date. Let us go for gold. Let us bring the Olympic and Paralympic Winter Games home in 2010.