Paul MacKlin

[Criminal Law Amendment Act, 2001, April 18th, 2002]

Mr. Speaker, I am pleased to rise today to introduce the debate on the Senate amendments to Bill C-15A, an act to amend the criminal code and to amend other acts, in short, the criminal law amendment act, 2001.

Hon. members will be aware that Bill C-15A received third reading and was passed by the Senate on March 19. After careful study and reflection, the Senate adopted three amendments to Bill C-15A. The House now has an opportunity to consider and vote on these amendments. I will briefly summarize the amendments in the order that they appear in the bill. They are as follows.

First is an amendment to clause 5 of the bill to add new subsections 163.1(3.1) and subsection 163.1(3.2) to the criminal code, the effect of which would be to exempt Internet service providers, ISPs, from criminal liability for the new offences of “transmitting”, “making available” and “exporting” child pornography, where the ISP “merely provides the means or facilities of telecommunication”. This is referred to as amendment 1(a) in the message from the Senate.

Second is an addition to clause 5 of Bill C-15A to amend subsection 163.1(6) and subsection 163.1(7) of the criminal code in order to ensure that the defences that are currently available in relation to child pornography offences apply equally to the new offence of accessing child pornography. That is referred to as amendment 1(b) in the message from the Senate.

Third is an amendment to clause 71 of the bill, that is, proposed subsection 696.2(3) of the criminal code, dealing with the process for review of allegations of wrongful conviction which would limit the minister's power to delegate the exercise of the new investigative powers to members of the bar of a province, retired judges or any other individual who, in the opinion of the minister, has similar background or experience. This is referred to as amendment 2 in the message from the Senate.

The government recognizes the important role played by the Senate in its consideration of this legislation. The government accepts the second and third amendments and acknowledges that these changes are improvements to the bill. I urge hon. members to vote in favour of these two amendments. However, the first amendment dealing with the Internet service providers is a different matter. I urge hon. members to reject this change to the bill. Let us look more closely at these amendments.

The second amendment to clause 5 of the bill is a consequential amendment that adds a cross-reference to the new offence of accessing child pornography into subsections 163.1(6) and 163.1(7) of the criminal code. As already noted, the sole effect of this amendment would be to ensure that defences that are currently available in relation to all other child pornography offences apply equally to the offence of “accessing” child pornography under subsection (4.1).

This amendment is necessary to avoid creating an unfair situation where a defence that is available to other and possibly more serious child pornography offences would not be available to a charge of “accessing child pornography”. This amendment corrects an oversight and the government supports it.

Turning to the third amendment, hon. members will be aware that the federal Minister of Justice exercises special post-appellate powers in review of criminal convictions. Proposed subsection 696.2(2) provides the minister with the investigative powers of commissioner under part I of the Inquiries Act. This will provide the minister with the power to compel the production of documents and the attendance of witnesses to provide information.

These additional powers of investigation are needed to improve the range and extent of the reviews of alleged wrongful conviction. Proposed subsection 696.2(3) as passed by the House would have allowed the minister to delegate the exercise of those investigative powers to “any individual”.

An amendment was made to subsection 696.2(3) in the Senate to specifically state that the minister may only delegate the exercise of those investigative powers to “any member in good standing of the bar of a province, retired judge or any other individual who in the opinion of the minister has similar background or experience”.

The government supports this amendment for the following reasons. It is important that those persons investigating cases on behalf of the minister have the ability to obtain the necessary information in order to thoroughly review and investigate a case so that a full report may be made to the minister as to whether or not a remedy is appropriate in a particular case.

Section 690 currently does not provide any powers to compel witnesses to give information or documents. Therefore there is no way that the information sought can be obtained if it cannot be obtained voluntarily.

For these special post-appellate powers to be exercised in a well balanced and reasonable fashion, the Minister of Justice needs to rely on sound legal advice based on good and reliable information.

The highly complex legal nature of these post-appellate conviction reviews requires that the people investigating these matters and eventually providing advice to the Minister of Justice possess a considerable knowledge of criminal law, the law of evidence, police practices and the workings of the judicial process. Therefore a legal background or substantial experience in law should be a requirement for a person to be designated as an investigator with the power to compel the production of evidence and the attendance of witnesses.

The Senate amendment allows the minister to appoint people the minister will trust and directs the minister's choice to persons having specialized legal experience. Again, the government accepts and supports this amendment.

Returning now to the first amendment to clause 5 of the bill, I ask hon. members to give careful consideration to this amendment as it is very problematic. It was made in an attempt to respond to concerns expressed by the Internet service providers to the effect that they could be convicted of “transmitting” or “making available” child pornography without any knowledge or intention to do so simply by virtue of the fact that they provide the “means” by which child pornography is disseminated.

These concerns are not well founded. New child pornography offences in Bill C-15A as well as the existing offences require both a guilty mind and a guilty act, a fact acknowledged by the Internet service providers. As with other criminal code offences, an offence of transmitting child pornography requires two critical components, the first component being an intention to transmit child pornography and the second component being the physical act of transmitting child pornography. Even without the Senate amendment, ISPs would not commit a child pornography offence when they do not have the knowledge of the content of the material stored on or going through their system.

Apart from being unnecessary, there is a more serious problem with the Senate amendment. The amendment exempts the ISPs from criminal liability in all cases where they merely provide the means or facilities of telecommunication. This exemption would apply even in cases where an ISP is aware that it is being used for the dissemination of child pornography because the ISP would still “merely provide the means or facilities of telecommunication”. As I mentioned earlier, ISPs who are unaware that their facilities are being used for such purpose would be insulated from criminal liability without the need for the amendment because they would not have the mental element, or the guilty mind if you will, that is necessary for committing a child pornography offence.

There is another problem with this amendment. The offences proposed by subclause 5(2) are not limited to the commission by means of the Internet. By exempting only the ISPs, the amendment ignores those who are responsible for other means or facilities that may be used for disseminating child pornography. Whether they be a courier, a taxi driver or even a trucker, they could unknowingly be used as a “conduit” or means of transmitting child pornography. Accepting an amendment to protect only one of the actors involved would cast a doubt on the legal fate of the other actors.

For all of these reasons, this amendment should be rejected by the House.

In conclusion, I strongly urge all hon. members to vote in favour of the second and third Senate amendments, amendments 1(b) and 2 in the message from the Senate, and to vote against the first amendment relating to the Internet service providers. That would be amendment 1(a) in the message from the Senate.

[Criminal Code, April 15th, 2002]

Mr. Speaker, I am pleased to have the opportunity to speak to this important issue, one that involves freedom of expression and dignity. It is about one of our important national symbols. In other words it is a debate over values.

This issue deeply touches all Canadians. The Canadian flag symbolizes, as we have heard today, democracy, freedom, liberty and Canadian unity. The Canadian flag and all it represents is the pride of all Canadians.

To better understand the issue before us it is important to recall the origins of our national flag. The significance of our national flag has occupied discussions on various occasions. The words that best describe our flag are those spoken by the Hon. Maurice Bourget, Speaker of the Senate, in February 1965 during the inauguration ceremony held on Parliament Hill before parliamentarians and thousands of Canadians. Unknowing of the issue that would one day arise before us he rightly stated:

The flag is the symbol of the nation's unity, for it, beyond any doubt, represents all the citizens of Canada without distinction of race, language, belief or opinion.

It is to this last item that I draw the attention of the House. Canadians are proud to be a tolerant and respectable people. We value our diversity of culture, religion and belief. We have incorporated into our constitution the fundamental principles of this wonderful country.

One of these, derived from tolerance, is freedom of expression. It is well understood that the actions to be prohibited by Bill C-429 amount to the expression of a political opinion by act or gesture. As troubling as that may be to some or perhaps even to most of us as Canadians there are other fundamental values that need to be protected which our flag represents.

I propose that what really upsets us is the message conveyed by the bill. The reality is that the message transmitted, a disagreement with government policy, is disturbing, but however disturbing the message may be putting limits on the expression of political opinion is nothing to take lightly.

We cannot justify criminalizing an act because we do not like the message it conveys. As a matter of principle criminal law in a free and democratic society such as Canada must be reserved for wrongful acts that seriously threaten our fundamental values of society. The freedom to express dissent is a fundamental value and Bill C-429 would limit that expression.

These acts simply do not amount to actions that require a criminal sanction. We must keep in mind that expressions judged distasteful by the majority are not in and of themselves a basis for restricting free speech in a free and democratic society.

Other countries have refrained from criminalizing the desecration of their flag, such as Ireland and the United Kingdom. The United States has attempted in the past to do so but the legislation was judged to be unconstitutional. It would be very likely that the proposed legislation represented by Bill C-429 would not survive a charter challenge in Canada. Freedom of expression is protected by section 2 of the Canadian Charter of Rights and Freedoms and flag burning is recognized as a form of political expression.

In short, Bill C-429 would go against the fundamental values that our nation's flag stands for, that is, representing Canadians without distinction as to belief or opinion.

I share the views of the vast majority of Canadians that desecrating our national flag is truly an offensive behaviour. Those who commit such acts do nothing to forward their cause. However, while it is objectionable behaviour, because it is a form of political expression, it is protected by the charter and cannot be criminalized.

[An Act to Amend the Criminal Code (Cruelty to Animals and Firearms) and the Firearms Act, April 11th, 2002]

Madam Speaker, does the hon. member support the amendments addressing subsection 12(6) dealing with handguns?

[Employment Insurance, April 10th, 2002]

Mr. Speaker, there are two parts to this program. I think the hon. member does not take into consideration the importance of one very initial program, that is, how individuals are actually trained in how to look after and maintain their firearms. Whether or not they are registered or whether for the moment we do not have their addresses in the records, we have instilled within those people the knowledge and ability to properly look after, care for, store and deal with firearms. That is very important. I think the hon. member appreciates how important it is that everyone who has firearms knows how to deal with them in a proper and effective manner.

For those people who have registered, are licensed and have now disappeared in the system, I know they are law-abiding citizens who have already gone through the legal process and quite frankly I ask and encourage them to contact the Canadian Firearms Centre to be re-identified.

[Employment Insurance, April 10th, 2002]

Mr. Speaker, I want to thank the hon. member for Yorkton--Melville for the opportunity to rise in the House today and provide some context for his comments. The initiatives we have taken to encourage early firearm registration have obviously worked. With almost nine months left before the deadline, over 1.1 million of the 1.8 million licensed firearms owners, about two-thirds, have already participated in this registration process.

The hon. member is aware that not all mail we send is received by its intended recipient. Some people have not filed an address change and, as the hon. member has mentioned, others have passed away. In fact, national media have reported that a large number of leadership ballots were returned to the Canadian Alliance as undeliverable. This is a common everyday occurrence that we do accept as part of the ongoing difficulties with any system. It is the responsibility of the firearms licence holders to report any change in address just as they must do for their driver's licence.

This is a public safety program. As such, it is much more than just a gun registry program. It is a multifaceted, practical approach that addresses the prevention of firearms deaths and injuries and crime deterrence. Screening all gun owners through licensing and tracking firearms along with minimum sentencing help deter, prevent and prosecute firearms crime.

It is clear that the firearms program is already successful. That is why Canada's law enforcement community recognizes and supports the firearms program as an important part of public safety. That is why national law enforcement organizations continue to support the Firearms Act. We are pleased that we are already seeing real life examples of the registry helping police fight crime. Information in the licensing and registration system will allow police to take preventive action. For example, officers can remove firearms when responding to domestic violence calls and they can more easily enforce court issued firearm prohibition orders.

Our government's continuing commitment is to public safety. I would like to thank the hon. member for Yorkton--Melville for the opportunity to bring these facts to the attention of the House.

[Criminal Code, April 10th, 2002]

Mr. Speaker, I would like to respond to Bill C-208 introduced by the hon. member for Jonquière. Bill C-208 proposes amendments to the criminal code as a means of protecting child victims of sexual offences.

The first of these amendments is a reclassification of certain sexual offences from hybrid offences, which may be prosecuted either summarily or by indictment, to indictable offences. The bill also seeks to impose graduated mandatory minimum sentences for the offences of sexual interference and invitation to sexual touching of a person under the age of 14. Finally, offenders convicted of any of the sexual offences listed in the bill, including sexual assault against adult or child victims, must undergo mandatory treatment.

I would like to indicate at the outset that the government is committed to work to safeguard Canadian children and to protect them from all forms of sexual exploitation. However, we do not believe that the proposed amendments to the criminal code are the appropriate means of achieving those goals.

First, the reclassification of these offences from hybrid to indictable is problematic as they are intended to cover a broad array of fact situations which range from minor offences to more serious matters. It would be inappropriate to mandate that the less serious offences which are covered by these criminal code provisions be prosecuted as indictable offences.

In addition, proceeding by indictment is a more lengthy and formal procedure which places additional burdens on child victims who may be required to testify at both a preliminary inquiry and at the trial.

With respect to the use of mandatory minimum sentences for sexual offenders, we must be mindful that their use in Canada is limited. Only 29 offences in the criminal code carry mandatory minimum penalties. A recent evaluation of the research in this area in the Department of Justice provides little support for any initiatives to expand the use of mandatory minimum penalties in Canadian law.

The evidence indicates that mandatory penalties in general are not effective in deterring crime and have many unintended harmful consequences in the criminal justice system, such as dramatically increased costs due to more and longer trials, fewer guilty pleas, and increased numbers in remand custody. In short, it is not clear that mandating such penalties would meet the goal of Bill C-208, which is to protect children from sexual offenders.

The use of mandatory treatment programs for all offenders convicted of one of the sexual offences listed in Bill C-208 raises issues of capacity and costs.

The House will note that the offence of sexual assault is included in Bill C-208. This is an offence which covers a broad range of behaviour and which applies to both adult and child victims. Consequently, the offenders prosecuted under this and other listed offences would present a diversity of treatment needs so that a variety of programs would have to be developed.

Additionally, the bill is inconsistent in its approach as it only proscribes treatment for offenders convicted of certain sexual offences while omitting others, including more serious sexual assaults.

Any reforms concerning the protection of children from sexual offences are best addressed in the context of an ongoing comprehensive review of the criminal law dealing with child victims, which is currently under way in the Department of Justice.

In November 1999 the department launched a consultation and review of the criminal law to assess the need for reforms addressing child specific offences, sentencing to prevent reoffending against children, facilitating child victim/witness testimony, and the age of consent to sexual activity.

The project is examining whether criminal code reforms are required to ensure that the serious nature of any offence against children is reflected adequately in general sentencing principles, aggravating mitigating factors, sentencing options, and how to better protect children from known sex offenders. The results of the consultation were recently presented to the Minister of Justice and to his federal, provincial and territorial counterparts at their meeting in February. They have directed federal, provincial and territorial senior officials to develop follow-up options for their consideration.

Before concluding I would like to remind the House that the government has taken and continues to take many other important steps to better protect children from sexual exploitation. For example, on November 10 last year, Canada signed the United Nations optional protocol to the convention on the rights of the child, on the sale of children, child prostitution and child pornography. This step exemplifies Canada's strong commitment to better protect children against sexual exploitation in the international context.

As well, on March 14 last year the Minister of Justice introduced Bill C-15, which proposed criminal code amendments that would better protect children from sexual exploitation. The bill included the creation of the following offences: using the Internet to lure and exploit children for sexual purposes; and transmitting, making available, exporting and intentionally accessing child pornography on the Internet. The bill also simplified the process for the prosecution of Canadians who sexually assault children while abroad.

These reforms are now in Bill C-15A. I am pleased to note that the bill has now passed third reading in the Senate with three amendments. It is now returning to the House for final consideration of those three amendments.

While we cannot support the member's bill for the reasons I have outlined in my remarks, let me state that the government, like the hon. member for Jonquière, is very concerned, as are all Canadians, about sexual offences against children. This is why the government will spare no effort in order to protect Canadian children from such offences.

[An Act to Amend the Criminal Code (Cruelty to Animals and Firearms) and the Firearms Act, April 10th, 2002]

Madam Speaker, I want to re-emphasize that through this process the number of revocations is 32 times higher than the total of the previous five years under the old program.

The licensing phase of the program has also produced a very successful compliance rate of about 90%. As we know firearm owners had to apply for a firearms licence by January 1, 2001. Eligible firearm owners who applied by the deadline should now have their firearms licence. We are now dealing with a small percentage of applications that need follow up due to incomplete forms or that require further review for public safety reasons.

We have now turned to the next phase of this important public safety program, the registration of firearms by January 1, 2003. As part of our commitment to facilitate compliance with the firearms program, firearm registration is now easier than ever. On a region by region basis licensed firearm owners have received a personalized registration form in the mail offering a limited time to register their firearms without charge. Another new feature is an online firearm registration process.

Despite the efforts of some opponents of this program to prevent Canadians from registering their firearms the response to these initiatives has been extremely positive. The amendments proposed in Bill C-15B would build on the success of the firearms program to date and the lessons learned, and I admit there have been lessons learned, from the licensing experience.

We are not changing the basic policy goals of the program such as the firearm registration deadline, nor the government's commitment to public safety. Instead, we are putting forth administrative changes that would facilitate compliance with the program and continue to ensure a high level of service to clients. These are a direct response to extensive consultations with program partners and stakeholders, including the policing community, gun owners and other Canadians.

These administrative changes would allow us to simplify the processes and requirements for firearm owners. At the same time it would strengthen the program's contribution to public safety.

Client service and efficiency would be enhanced by designing a more streamlined system. This would include simplifying firearm licence renewals and the registration process. Preprocessing of visitors bringing guns into Canada would also make the border process more efficient.

We would improve efficiency and reduce costs. For example, we intend to balance the workload associated with the program by staggering the firearms licence renewals. This would avoid a surge of applications in a five year cycle pattern.

We would improve the day to day administration of the firearms program by ensuring more direct accountability. We would achieve this by consolidating operational authority under the program through the Canadian firearms commissioner who would report directly to the Minister of Justice.

Other amendments would allow us to enhance border controls when it comes to firearm imports and exports and to meet our commitments under international agreements. This would include the recently finalized United Nations firearms protocol which supports Canadian policies and would be an additional tool in helping to curb the illegal trafficking of firearms.

We have heard and carefully considered the views of various individuals and organizations that appeared before the committee. In its testimony we heard the law enforcement community reaffirm its support for this program and its essential crime fighting tools.

The Canadian Police Association and the Canadian Association of Chiefs of Police outlined the significant public safety benefits of this program which combined the screening of applicants, tracking of firearms and minimum mandatory sentencing to help deter, prevent and prosecute firearm crime in Canada.

We have also heard the minister's user group on firearms maintain that these amendments are an important step forward in ensuring a fair balance between the interests of responsible firearm owners and our shared objective of public safety.

In response to specific issues raised, the government has responded with technical amendments that were adopted by the committee. I am confident that these will go a long way toward addressing any lingering concerns.

The government is committed to enhancing the safety of Canadians inside and outside of their homes. The amendments to the Firearms Act included in Bill C-15B will help ensure that the key public safety goals of the Firearms Act are met while ensuring that the administration of the program is more efficient, effective and client friendly.

Both the firearms and cruelty to animals provisions of Bill C-15B are supported by a large majority of Canadians. I urge the House to give this important legislation its final approval.

[An Act to Amend the Criminal Code (Cruelty to Animals and Firearms) and the Firearms Act, April 10th, 2002]

Madam Speaker, for example, in respect of cruelty offences which either prohibit conduct outright or which prohibit causing unnecessary pain, suffering or injury, the defence of duress might apply in an exceptional circumstance.

Colour of right, mentioned in subsection 429(2) of the criminal code, has two alternative meanings. In the context of property offences, colour of right is used to justify actions on the basis that the accused had possessory or proprietary rights to the property. Colour of right is referred to in subsection 429(2) because that part of the code deals with property offences.

Case law has also confirmed that the term colour of right is used to denote an honest belief in a state of facts which, if it actually existed, would at law justify or excuse the act done.

The courts have said that when used in this sense colour of right is merely a particular application of the doctrine of mistake of fact. Mistake of fact is a common law defence and all common law defences are preserved by subsection 8(3) of the criminal code.

There is case law that expressly states that even if subsection 429(2) of the criminal code did not apply a defence based on raising a reasonable doubt as to whether the accused had colour of right would be available to an accused at common law.

To make its intent absolutely clear in the application of common law offences to cruelty offences the committee amended Bill C-15B to expressly refer subsection 8(3) of the criminal code. This means that all defences that could possibly be relevant in intentional cruelty and criminal neglect cases are expressly made applicable.

I would like to address one further concern that has been expressed by members of the House. Some members have suggested that the provisions of Bill C-15B would invite animal rights activists to use the criminal courts to challenge industry and research practices or to bring frivolous or vexatious prosecution. Even though there is no evidence that frivolous or vexatious prosecutions have been a problem over the past 50 years I draw the attention of members of the House to the provisions of an omnibus bill which was recently considered and passed by the House and is now returning to the House from the Senate.

Bill C-15A would provide important protections for persons who may be the subject of an information laid by a private individual. Because all of the animal cruelty offences in Bill C-15B are hybrid offences, with the exception of a breach of prohibition or restitution order, they would be subject to procedures for indictable offences.

Bill C-15A would provide that where an information is laid by an individual who is not a public or peace officer the justice who receives the information must refer it to a provincial court judge or a designated justice. In Quebec the relevant judge is a judge of the court of Quebec.

The judge or designated justice who receives the information must hold a hearing at which the attorney general has the right to attend, cross-examine and call witnesses and to present relevant evidence. It is only after this hearing has been held and only if the judge or designated justice considers that the case for issuing a summons or warrant has been made out that the accused would even be brought to court. This procedure would apply to all indictable offences and would offer an effective means by which allegations of animal cruelty made by persons other than public or peace officers could be assessed before a potential accused is put in jeopardy.

I would like to emphasize that there is a greater societal interest which is achieved by treating cruelty to animals more seriously. There is increasing scientific evidence that shows a correlation between animal cruelty and subsequent violence against humans. Our judges, health professionals and law enforcement officers are beginning to recognize and address animal abuse as an aspect of a bigger problem of violence in our society. I ask the House to do the same.

I would like to turn now to the proposed administrative improvement to the firearms program. Canada's firearms program is a practical and common sense approach to gun safety that works to keep firearms from those who should not have them while encouraging safe and responsible gun use by legitimate firearm owners. This is achieved with the licensing of firearm owners and firearm registration. Some of the program's opponents will tell us that targeting Uncle George's duck gun would do nothing to prevent crime. They are just plain wrong.

In 1998, 63% of all female domestic homicide victims were shot with ordinary rifles and shotguns. A further 21% were shot with sawed-off shotguns and rifles. In the home Uncle George's duck gun can have tragic consequences.

Canadians remain steadfast in their support for this public safety initiative. The government's approach to preventing firearm deaths, injuries and crimes is a clear reflection of Canadian values and principles. Poll after poll shows the overwhelming majority of Canadians support gun control and support the important public safety framework of the Firearms Act. In fact, an Environics poll taken late last year showed that the majority of the supporters of all political parties in the House supported the firearms program.

Our national investment in this program is already paying off in terms of public safety benefits and in compliance. Enhanced screening of firearms licence applicants and continuous eligibility screening of licence holders is already leading to safer homes and communities by keeping firearms from those who should not have them.

Since December 1, 1998, over 4,000 licences have been refused or revoked by public safety authorities. The number of revocations is 32 times higher than the total of the--

[An Act to Amend the Criminal Code (Cruelty to Animals and Firearms) and the Firearms Act, April 10th, 2002]

Madam Speaker, I am very pleased to have this opportunity to speak to the House of Commons about the provisions of Bill C-15B, an act to amend the criminal code, dealing with cruelty to animals and firearms, and the Firearms Act.

Before turning to the substance of the bill, I would first like to acknowledge the very fine work that was conducted by the House of Commons Standing Committee on Justice and Human Rights in its careful review. The applause I hear is a worthy statement of how we feel about that work because it did a very careful review of all the provisions in Bill C-15B.

The committee had the benefit of hearing from a wide spectrum of witnesses with a wealth of experience and knowledge. This information assisted the committee in its review and modification of Bill C-15B. I am grateful to the committee for its work in advancing the debate and understanding of the legislation.

Turning now to the content of the bill, I will start with consideration of the animal cruelty provisions.

I am pleased to say that there is overwhelming support for the objective of Bill C-15B to modernize and update the sections of the criminal code dealing with animal cruelty. This objective has three aspects.

The first aspect is to recognize animal cruelty offences for what they are. Animal cruelty offences are crimes of violence. They ought to be treated as such. Their seriousness ought to be reflected in the penalties available for these offences.

The vast majority of Canadians who have voiced their opinion on this subject have made it very clear that they want cruelty offences to be treated more seriously. The public was consistent in its message on this point during the consultations in 1998 when the department solicited views on the current animal cruelty provisions in the criminal code. They have continued to voice their support in increased penalties, as evidenced by the many petitions and letters the Department of Justice and members of parliament have received over the past three years.

The Canadian public is demanding that our laws on animal cruelty be updated and the penalties increased. In this regard, it should be noted that the committee adopted an amendment to raise the maximum fines available for intentional cruelty and criminal neglect offences when prosecuted by summary conviction to $10,000 and $5,000 respectively.

This brings me to the second aspect of modernizing the law on animal cruelty.

In the course of discussions on Bill C-15B, some people have suggested that there is no need to change the current provisions of the code beyond raising the penalties. The problem with this argument is that it ignores the anachronisms and unnecessary complexities of the current law.

In some of the current animal cruelty provisions in the criminal code, the proprietary status of an animal determines whether or not a successful prosecution can be brought, even though the basic policy of the cruelty provisions is to protect all animals from intentional cruelty and criminal neglect. An example of this is section 445 of the criminal code which only applies to animals kept for “a lawful purpose”.

Bill C-15B addresses the unnecessary complexity of the current law. Let me give an example.

It appears that subsection 446(1)(a) of the criminal code is restricted to wilful infliction of unnecessary pain, suffering or injury. This provision however must be read in conjunction with subsection 429(1), which states that wilfully includes recklessly. Further, it is only through reading subsection 446(3) that it is clear that paragraph 446(1)(a) actually creates two offences: one of intentional cruelty and the other of causing unnecessary pain, suffering or injury through criminal neglect.

Bill C-15B rids the law of these complexities and anachronisms and clearly sets out two main categories of offences: intentional acts of cruelty and those acts which cause pain, suffering or injury to animals by reason of criminal negligence. The creation of these two categories of offences in Bill C-15B provides clarity in the law in terms of precisely defining the mental and physical elements of the offences. Clarity and precision in the law operate to the benefit of all Canadians.

In the interest of promoting certainty in the law, I would like to note for the record that based on a concern raised by research and industry about the applicable level of criminal intent in one of the criminal neglect provisions the committee adopted an amendment. The amendment specifies that the offence of abandonment must be committed with “wilful or reckless” intent and that all other offences in the criminal neglect section must meet a standard of criminal as opposed to civil negligence.

A third aspect to modernizing the law is to fill a gap in the law. At the present time a person who has a lawful purpose for killing an animal but who does so brutally and viciously cannot be charged with cruelty unless they also cause unnecessary pain, suffering or injury to the animal.

Bill C-15B creates a new offence of intentionally killing an animal brutally or viciously whether or not the animal suffers pain. For example, such conduct could include tying an animal to a railroad track, fastening an explosive device to an animal, or putting an animal in a microwave oven.

In my remarks today I would like to address a point about which there appears to be much confusion. Some members have suggested to the House that if the defences in subsection 429(2) did not exist, industry would be guilty of committing cruelty offences. The main animal cruelty offence of causing unnecessary pain, suffering or injury is structured in such a way that industry and research practices are factored into determining whether a cruelty offence has even been committed. This is an extremely important point and I would like to take a few minutes to elaborate on it.

The first part of the analysis in determining whether an offence of causing unnecessary pain, suffering or injury has been committed is to examine the lawfulness of the purpose for which the pain was inflicted. On the basis of the recognition of industry and research practices in case law, common law, codes of practice, provincial, territorial and federal legislation and conventions concerning animal use, there is absolutely no question that the use of animals in industry or research always has been and will continue to be legal.

Even if the purpose is legal, the inquiry does not end there. The second issue to examine is whether or not the means used to achieve the purpose imposed avoidable pain, having regard to other means reasonably available “given costs and social priorities” as noted by the court in the leading case on cruelty.

An offence of causing unnecessary pain, suffering or injury is only made out if the court is satisfied beyond a reasonable doubt that the accused inflicted avoidable pain on an animal in these circumstances. This has been the test for liability in the criminal code for this offence since 1953 and it continues to be the test.

The government has stated repeatedly that what is lawful today will remain lawful after Bill C-15B comes into force. It is simply not an accurate statement of the law to suggest that because of subsection 429(2) of the criminal code, industry is effectively exempt from animal cruelty provisions because they have a lawful purpose for inflicting pain, suffering or injury. No one is exempt from the application of the criminal law on animal cruelty. They never have been and they will not be in the future.

Reasonable industry practices are not criminal because they do not meet the threshold of criminal liability and not because they are exempt.

Members of the House may be reassured to know that a witness who appeared before the committee on behalf of the Criminal Lawyers Association stated that it was the view of its members that moving the cruelty provisions out of part XI of the criminal code was appropriate and that no defences were lost to accused persons because of this move.

I have a last word on the issue of defences. Over the past 50 years the defences in subsection 429(2) have never been raised in a reported case involving the intentional infliction of unnecessary pain, suffering or injury. There is an obvious reason for this. As a practical matter, there are very few circumstances giving rise to a defence for intentional cruelty offences.

[Criminal Code, March 22nd, 2002]

Mr. Speaker, I am pleased to have the opportunity to speak to Bill C-304.

In a nutshell, subsection 213(1) of the criminal code makes it an offence to communicate in a public place with any person for the purpose of engaging in prostitution. Currently the offence under section 213 of the criminal code is punishable on summary conviction. The sentence is a fine of not more than $2,000, imprisonment for six months, or both.

The amendment proposed by the hon. member for New Westminster--Coquitlam--Burnaby would classify the offence as a hybrid offence. Hybridizing offences results in potentially increased penalties. This offence, punishable today by a maximum sentence of imprisonment for six months, would become punishable by imprisonment for up to five years as a result of the application of section 743 of the criminal code.

When the legislation containing this provision was first introduced in the House of Commons the Hon. John Crosby was Minister of Justice. He said the purpose behind the legislation was not to deal with all the legal issues connected with prostitution but to address the nuisance caused by street prostitution. He sought to balance the concerns of law enforcement agencies, citizen's groups, women's groups and civil libertarians.

Section 213 is intended to assist in dealing with the nuisance problems experienced by neighbourhoods affected by street prostitution. Making the offence punishable by five years would be going too far. Similar offences such as causing a disturbance in a public place are summary conviction offences.

Another possible underlying purpose for making a section 213 offence a hybrid offence is, as the hon. member mentioned, to permit the fingerprinting and photographing of persons charged under the section. As a hybrid offence the Identification of Criminals Act allows fingerprinting and photographing only in the case of offenders accused of committing indictable offences pursuant to the federal Interpretation Act. Hybrid offences are interpreted in that fashion.

Some seem to believe fingerprinting and photographing would act as deterrents for persons charged under subsection 213(1). However experience has shown it is not necessarily so. In addition, converting section 213 into a hybrid offence would allow police officers to proceed with arrests whenever they had reasonable grounds to believe an offence had been committed or was about to be committed.

In the case of a summary conviction offence police officers cannot arrest until they find a suspect committing an offence. Increasing police powers would likely lead to increased enforcement and ultimately the displacement of prostitutes to more isolated and potentially dangerous areas where their lives would be at greater risk.

It is important to realize that making subsection 213(1) a hybrid offence could open the door to engaging the more onerous criminal procedure associated with indictable offences and thereby create an added burden for the courts. This would have to be avoided by explicitly keeping the application of section 213 within the absolute jurisdiction of the provincial court.

For these reasons subsection 213(1) of the criminal code should not be amended.