Mr. Speaker, it is a pleasure to speak to this private member's bill today. The government side of the House understands and respects what is at issue here and the grave concern there is in this particular area. We do have a problem, however, where it pertains to the legislation specifically and jurisdiction under the Constitution. I will take a couple of minutes to stress two specific points in those terms.
First, the bill would interfere with the provinces' ability to deal with matters within their legislative jurisdiction as they see fit. The federal government does not simply take over matters of provincial jurisdiction if someone is of the view that provincial laws could be tougher. This is exactly the rationale given by the member responsible for the bill. Perhaps this issue should be taken up directly with the provinces whose legislation she considers to be weak.
This is simply not a sufficient reason to impinge on provincial legislative powers under the Constitution. In fact, with this as the stated objective, the bill is likely unconstitutional on that ground alone. If the federal government legislates to strengthen valid provincial law, the federal government is in effect trampling on provincial rights. We cannot do this, otherwise our Criminal Code could end up covering every aspect of provincial law with more serious penalties.
A second and equally important reason as to why the bill's approach is not proper is that it devalues the true criminal nature of offences contained within the Criminal Code. Recent amendments to the Criminal Code on matters such as child pornography, terrorism, organized crime and existing offences such as sexual assault, murder, robbery, break and enter, and so on, would be devalued if we used the Criminal Code to remedy offences of a more regulatory nature.
Anti-poaching offences are clearly of a more regulatory nature. The activities that are prohibited are lawful if there is a licence issued. It is the licence that marks the dividing line between an offence and lawful behaviour. This is the hallmark of regulatory law, not criminal law.
In her last speech, the member for South Surrey--White Rock--Langley said that this was no different from there being driving offences in the Criminal Code. In fact, there is a very important difference. Driving offences in the Criminal Code are based on a standard of criminal fault, whereas provincial driving offences are not. Provincial driving offences are strict liability offences and Criminal Code driving offences require criminal negligence to be shown. The standards are different. The nature of the offence is different.
However what is being proposed in this legislation would be exactly the same offence with the same standard of fault: killing a wild animal without a licence. This provincial offence would simply be duplicated in the code.
In respect to driving offences, dangerous driving puts all of society at risk and so it is prohibited. It is prohibited criminally for the better protection of society as a whole. There is no licence for dangerous driving in any circumstances. The province never permits the kind of activity prohibited by the code.
The killing or taking of wild animals, on the other hand, is legal with the permission of the province with the issuance of a licence. It is only when there is no licence that the behaviour becomes unlawful. The absence of a licence is what sets apart lawful from unlawful. This is fundamentally different from dangerous driving provisions. The provinces do not authorize dangerous driving. It is potentially harmful behaviour and it is behaviour that is without qualification. In other words, the member's comparison is inapt.
The federal government has jurisdiction to legislate in regard to wildlife poaching where the poaching takes place on federal land, where trade in animal parts crosses a provincial boundary or has an international aspect, or where the subject matter is the preservation of an endangered species. In this regard, the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, the Canada Wildlife Act, the Species at Risk Act and the Migratory Birds Convention Act are all operative pieces of federal legislation aimed at protecting wildlife in various ways.
The federal government has not neglected its responsibilities. There are existing comprehensive laws to protect wildlife. In any case, if the member from South Surrey does not think these statutes are adequate, then her bill should have sought to amend these statutes.
There is no compelling reason offered for why matters covered by provincial laws and a myriad of specialized federal laws should now be included in yet another statute. The approach in Bill C-280 would create an even more complicated and fragmented regime of anti-poaching laws.
The member also mentioned that the bill would not encroach on provincial jurisdiction because it would not force the provinces to use the code. This is not a determining factor for whether or not a bill would be unconstitutional. It is not the preservation of provincial prosecutorial choice that is important. We must look to the constitutional basis for the proposed measures.
Is the member suggesting that this is valid criminal law? This is hard to sustain given that the very same matters are legislated by the federal government in non-criminal statutes and regulated by the provinces under a power that clearly is not criminal law.
I do not think the federal government should be in the habit of judging the adequacy of every provincial statute and then legislating improvements where it sees fit. This risks overstepping constitutional boundaries. If provincial legislation prescribes inadequate penalties for a particular kind of behaviour, then provinces should be encouraged to improve their laws. The government believes in working with provincial counterparts to solve problems that affect Canadian society. It does not believe in taking over unilaterally.
We cannot use the Criminal Code to remedy every deficiency in provincial law. We cannot simply duplicate every provincial offence in the Criminal Code and jack up the penalty. The bill essentially says that provincial wildlife poaching offences would now be criminal offences. This creates a dangerous precedent. It essentially declares the proposition that every provincial offence could be made a federal offence under the Criminal Code. In the absence of some link to a head of federal legislative power under the Constitution, this is unacceptable.
In addition, the bill is flawed in its approach to criminal law. It is inconsistent with existing criminal law in terms of procedure and in terms of penalties. The penalties provided are three, four and eight year maximum terms, depending upon the circumstances. These are unknown penalties under the Criminal Code. The penalty regime in the code is built on two, five, ten and fourteen year terms. There is no reason to create an entirely new grade of sentences.
Also, offences in Bill C-280 would be straight, indictable offences. This is grossly inconsistent with most criminal offences. Even offences like sexual assault are dual procedure, allowing the Crown to proceed summarily with simpler procedures where the circumstances suggest it is appropriate.
While we applaud the spirit behind the bill, the government cannot support it because it goes beyond achieving its objective in an inefficient and inappropriate way. There is a regime of laws in place that deals almost precisely with the same subject matter. There is no clear evidence that federal law in this area is inadequate. If provincial law is inadequate, then provincial law should be improved. There simply is no reason to duplicate existing offences in the Criminal Code, which is normally reserved for the conduct that attracts society's most harsh condemnation.
