Scott Reid

[Benoît Lécuyer, March 11th, 2002]

Mr. Speaker, it is with sorrow that I rise in the House today to pay tribute to a brave man who gave his life to protect our roads and our freedom. Constable Benoît Lécuyer, who was shot down in cold blood on February 28 during a routine arrest for speeding, will not be forgotten.

On behalf of the Canadian Alliance and all Canadians, I offer my deepest condolences to Mr. Lécuyer's family, especially his wife, Anick Royer, his children, Joël and Marianne, his brother Éric, also a police officer, and his mother, Micheline.

We thank you for your courage. The country is indebted to you for your sacrifice.

[Species at Risk Act, February 21st, 2002]

Mr. Speaker, I rise today to speak in favour of the several amendments I have put forth which seek to remedy the glaring absence of mens rea in Bill C-5. Allow me to explain a bit about mens rea in Canadian criminal law.

Our criminal justice system is based upon several fundamental principles such as the right to be presumed innocent until proven guilty. In order to be culpable of a criminal offence in Canada three criteria have to be met.

First, a criminal act must have been committed. In other words, harm must have been caused. There are a few exceptions to this rule, as in the case of conspiracy to commit an act. However, in such cases we have accepted as a society the idea that conspiracy itself is a criminal act.

Second, the culpable party must have been the one to commit the criminal offence. In other words, if we are trying to convict person x for a crime, then person x must have been the person to actually physically commit the crime.

Third, we have the principle of a guilty mind or as the lawyers call it in Latin, mens rea. This means that not only does a culpable person have to have physically committed the act in question, but the person must also have committed the act intentionally and willfully. This principle exists in our justice system to protect people from prosecution for acts that they committed unwittingly or unintentionally, provided that criminal negligence was not involved.

The mens rea principle is an ancient part of the British and Canadian legal systems.

When the great British constitutional scholar Albert Venn Dicey was trying to give an illustration to define the rule of law in his great book Introduction to the Study of the Law of the Constitution , he gave the example of Voltaire, the great French writer. He was arrested and imprisoned in the Bastille for a poem that he did not write, that he had not circulated and the substance of which he had not agreed with.

That is the sort of thing the three principles are meant to stop. The bill in its unamended form unfortunately strips away at one of these fundamental pillars of the rule of law. Let me be more specific. Clause 32(1) of the bill states:

No person shall kill, harm, harass, capture or take an individual of a wildlife species that is listed as an extirpated species--

No mention is made of knowledge or intent. Clause 32(2) states:

No person shall possess, collect, buy, sell or trade an individual of a wildlife species that is listed as an extirpated species--

Again, there is no mention of intent or knowledge. This means I could go to my local health food store, buy a natural product and have unknowingly in my possession contraband which according to the unamended wording of Bill C-5 would make me a criminal.

Clause 33 states:

No person shall damage or destroy the residence of...an endangered species--

Clause 36 and clause 60(1) reiterate the aforementioned offences and extend them to provincial lands. Clause 58(1) states:

No person shall destroy any part of the critical habitat of a listed endangered species--

It is likewise in clause 61(1). This means I could be walking in a forest, pluck a flower that itself is not an endangered species, yet because this common flower may be the food of an obscure species of which I have never even heard, I would be guilty of a criminal offence. This is much easier than one might think.

Under the schedules to the bill, there are listed as either extirpated or endangered species: 10 mammal species; 21 bird species; 4 amphibian species; 5 reptile species; 11 fish species; 8 species of molluscs; 6 species of lepidopterans; 51 species of plants; 1 lichen; and 1 moss. As well, the bill contemplates the inclusion of a reasonably extensive list of additional species that could by ministerial order be added to those lists.

I recognize at least one of those species as an endangered species in my constituency. I am sure there are many others, but there is one that I recognize.

That particular species, the loggerhead shrike, is found on the land of a farmer in my constituency who lost the use of his land because of provincial legislation protecting nesting sites of the species and any area within a 500 metre radius of a nesting site. That resulted in the loss of land.

Under the law as it is currently written without the amendments I am proposing, there would be the danger that this individual could have actually committed a criminal act because he did not know this species was endangered and did not know that it was even on his land until he was informed by the ministry of resources. There is the danger that this individual could become a criminal for unknowingly having done something to a species he did not know existed and if he had known it existed, he would not have known it was endangered. Clearly we need to change the system.

My point is that the mens rea convention exists in order to ensure that unintended consequences of normal human activity are not criminal. If my hon. colleagues in the House agree with me that plowing a field, buying tea, or picking a common flower should not be criminal acts, then my colleagues must also agree with me that these clauses must be amended as I have proposed to include the words “knowingly”, “wilfully” or “negligently”, or any other change that would bring these offences in line with our criminal code and with our legal traditions.

I would like to make one last point in order to prove that this glaring absence of mens rea is not an oversight by the drafters of this legislation. Clause 100 of Bill C-5 states:

Due diligence is a defence in a prosecution for an offence.

This may sound like a technical point but it is very significant. We have already reviewed the fact that the bill creates criminal acts which can be committed without intent or knowledge. Clause 100 states that in such cases, a defendant is allowed to plead ignorance or to try to demonstrate that it would have been unreasonable for him or her to have known the implications of his or her actions. This is what can be called reverse onus.

Normally in criminal proceedings the crown in order to prove that an offence was committed must prove that the defendant physically committed the offence and that the defendant did so knowingly and intentionally. With the reverse onus in the unamended wording of Bill C-5, all the crown would have to do would be to prove the defendant had physically committed the offence, full stop. It would then be incumbent upon the defendant to prove or to argue that he or she had acted innocently or unknowingly. With the bill in its unamended form, Canadians would be guilty until proven innocent.

I urge my colleagues to heed my warning and to consider the gravity of excluding the mens rea principle from the offences listed in Bill C-5. The consequences would be disastrous to our farmers, to our ranchers, to our land developers and even to our wildlife conservation officials who may be unwittingly harming wildlife or its habitat while actually attempting to do the opposite.

If the bill passes as currently drafted, every single person who has ever ventured out into nature would be in danger of committing a criminal offence. This is certainly not what the minister intended. It is certainly not in the best interests of Canadians or of the species that we wish to protect.

[Species at Risk Act, February 21st, 2002]

moved:

Motion No. 122

That Bill C-5, in Clause 100, be amended by replacing lines 16 and 17 on page 57 with the following:

“100. A person is not guilty of an offence under this Act unless the person knowingly committed the act that is the subject of the offence.”

Debate arose on the motions in Group No. 2.

[Species at Risk Act, February 21st, 2002]

moved:

Motion No. 95

That Bill C-5, in Clause 61, be amended by deleting lines 27 to 40 on page 34 and lines 1 to 40 on page 35.

[Species at Risk Act, February 21st, 2002]

moved:

Motion No. 86

That Bill C-5, in Clause 60, be amended by replacing line 12 on page 34 with the following:

“rial minister, no person shall knowingly destroy any part”.

Motion No. 90

That Bill C-5, in Clause 61, be amended by replacing line 22 on page 34 with the following:

“61. (1) No person shall knowingly destroy any part of”.

[Species at Risk Act, February 21st, 2002]

moved:

Motion No. 80

That Bill C-5, in Clause 58, be amended by replacing line 39 on page 31 with the following:

“58. (1) No person shall knowingly destroy any part of”.

[Species at Risk Act, February 21st, 2002]

moved:

Motion No. 57

That Bill C-5, in Clause 36, be amended by replacing line 28 on page 22 with the following:

“territorial minister, no person shall knowingly”.

[Species at Risk Act, February 21st, 2002]

moved:

Motion No. 39

That Bill C-5, in Clause 32, be amended by replacing line 30 on page 19 with the following:

“32. (1) No person shall knowingly kill, harm, harass,”.

Motion No. 44

That Bill C-5, in Clause 33, be amended by replacing line 10 on page 20 with the following:

“33. No person shall knowingly damage or destroy the”

[Committees of the House, February 21st, 2002]

Mr. Speaker, I rise on a point of order. I seek unanimous consent of the House to present a dissenting report to the report of the Standing Joint Committee on Official Languages.

The reason for which this dissenting report is being submitted in this unusual manner is that the committee adopted a rule last Monday at its sitting which stated, if I may quote, that:

Pursuant to Standing Order 108(1)a), the Committee authorize the printing of the dissenting or supplementary opinions by Committee members as an appendix to this report immediately after the signature of the Co-Chairs, that the dissenting or supplementary opinions be sent to the Co-Clerk of the House of Commons, in both official languages, on/or before Tuesday, February 19, 2002 at 5:00 p.m.

I was in Toronto on February 19 and was flying back to Ottawa on a flight from Toronto Island airport. An electrical fire developed in the airplane and it was forced to turn around and return to the airport. It was quite exciting, actually. There were rescue vehicles and the trucks that spray the foam out on the runway. It slowed us down. The result was that by the time I was able to reschedule my flight and come to Ottawa the deadline had passed.

It was not possible for the committee to change its rules in that very short period of time. Moreover, it would have been impossible for the committee to print its report in time to place it before the House today. For that reason the committee was unable to change direction on a dime, as it were, and allow me to submit this dissenting report.

That was the reason for the failure to submit it by the deadline. There was no ill will on anyone's part nor were the rules that were set up in any way meant to cause this sort of situation.

So that members who are trying to decide if they would give their unanimous consent are aware, the nature of the dissenting report is not to disagree with the points of substance in the main report but rather to present a different philosophical point of view in which I maintain that the rules that affect Air Canada, by being different from the rules that affect other airlines, create a unlevel playing field. Fundamentally this is in conflict with the rule of law. That is the substance of the distinction between what I am saying and what the report of the committee as a whole is saying.

On one last note, I wish to second the thanks that the chairman of the committee has given to the clerk of the committee and to the researchers and others who helped the committee.

[Species at Risk Act, February 18th, 2002]

Mr. Speaker, in looking at the amendments in Group No. 1, I will be addressing in particular two amendments that I have put forward, Motion No. 103 and Motion No. 111. Both of them deal with the very important issue of compensation to landowners, particularly farmers, for land use loss they may suffer as a result of the rules under the species at risk act.

Motion No. 103 amends clause 64(1) to read as follows:

The Minister shall, in accordance with the regulations, provide full, just and timely compensation to any person for losses--

The current wording in that clause is:

The Minister may, in accordance with the regulations, provide fair and reasonable compensation to any person for losses suffered as a result of any extraordinary impact of the application--

of the law.

I just want to point out the obvious flaws that exist in the current wording of the legislation as regards compensation. First we notice that under the current wording the law says compensation may be provided, not that it shall be provided. That means that it may not be provided.

The previous speaker from the government side said that compensation will be provided in exceptional circumstances, so we may assume that it will not normally be provided, that most farmers, most landowners, will in fact suffer the complete cost of protecting species, however large that might happen to be. He said that it would be decided on a case by case basis whether or not compensation should be provided. That means that there will be no certainty for landowners ahead of time as to whether in their case compensation may or may not be provided.

This kind of uncertainty is the very opposite of the rule of law on which our society is founded. It is precisely when this kind of uncertainty is created and when individuals may, on a more or less random and unsystematic basis, be subjected to bear all or most of the costs that people are in fact most likely to react with irresponsible husbandry practices or to feel victimized by the government and therefore respond by taking matters into their own hands.

There is plenty of international experience of this. The rule in the United States, where some of these laws have been applied without any consideration for compensation, has been that some people “shoot, shovel and shut up” when they find an endangered species on their property rather than try to exercise the kind of responsible husbandry of the natural environment that would result in those species being protected. When a species that is endangered is discovered on their property, they react not by protecting it but by eliminating it before the government authorities have a chance to find out about it and impose the costs of protecting that species on the owner.

The amendment I have proposed would change this dramatically. It states that the minister shall provide compensation. It also states that the compensation shall be full, just and timely as opposed to being, as in the current text of the bill, fair and reasonable. Fair and reasonable could be interpreted as meaning occasional, partial and more or less arbitrary in application. We can already see that the government side is interpreting it this way. This is simply unacceptable. It is bad for the environment. It is bad for landowners. It is just bad all the way around.

Fair and reasonable compensation has been described by the Pearse report as being 50% of the cost. There are cases where 50% of the cost of losing the use of a chunk of land will put individuals out of business and cause them to lose their farms or their land. I know of one example where this type of thing has already occurred in my own riding under provincial legislation of the same sort. It is a piece of land that an individual purchased and was living on. The mortgage depended upon the development of one lot on that piece of land.

The ruling that came down from the Ministry of Natural Resources of the province of Ontario was that because a species known as the loggerhead shrike, or butcher bird, had a nesting site in one of the landowner's fields it would be impossible to develop any land within a 500 metre radius of that nesting site, notwithstanding the fact that the particular lot did not actually have any use for the relevant species or for the loggerhead shrike. The result was that this individual was unable to develop the land. The value of the land fell and the mortgage could not be renewed. I am actually not certain if the individual has lost the property yet but that is the expected result of this legislation.

I do not see why we would want to replicate this kind of flawed model at the federal level. What would have been the harm in providing that individual with compensation for that land?

There are low cost solutions that are available. As my colleague from Red Deer observed, it is possible to compensate someone for the loss of the use of a piece of property. It is also possible to help subsidize the cost of protecting that species if some form of active measure is needed. There is no reason why that should not be the way things are done.

In fact, under the voluntary system that has been developing in Canada we already see measures being taken that impose very limited costs on landowners and provide very effective compensation and very effective protection for the species. I am thinking in particular, if I may give another example, of an individual who lives near Greely, Ontario, just south of the city of Ottawa, who was approached by a private organization requesting that he agree to sign a covenant that a wetland on his property would never be used for development purposes. The individual agreed. That wetland is now protected and serves as a nesting site for ducks as they migrate from north to south and south to north. This kind of voluntarism that we see seems to be preferable.

When the government wants to impose rules and national standards it certainly can do so for the benefit of the entire country, but only if it takes into account the responsibility and the willingness of people, in farming and in other rural occupations, to assist in conservation and only if it takes into account the fact that people, no matter how responsible they may be, are not likely to be as responsible when they are in danger of being driven out of business as they are when they are provided with some compensation.

Turning very quickly to the other amendment I propose, Motion No. 111 contemplates the amendment of the rules to permit individuals to have some compensation for legal costs. One of the unfortunate aspects of the elaborate bureaucracy that would be set up here is that it would allow a large government agency to go after small landowners who have limited resources. In order to defend their rights to their property and in order to seek compensation, they would have to go to court or through some form of arbitration process, which involves a considerable upfront expenditure.

If there is one thing that I think distinguishes people who are in farming it is that they tend not to be cash rich. Because of the nature of the business, they tend to be perpetually short of cash. Depending upon a lengthy process that may produce compensation for them at the end without allowing them to gain some kind of compensation for their legal costs more or less assures that they will be unable to pursue any compensation that is due to them. I think this requires an amendment to reflect the particularly difficult circumstances they find themselves in when faced with a powerful bureaucracy.

If I may, I would like to make one last comment regarding the issue of whether or not people could be prosecuted for unknowingly damaging a species. Clearly this is an unreasonable thing in this law. The law should say that one could not be prosecuted for harming an endangered species unless one knew about it. The idea that someone could accidently plough over a plant or destroy a nesting ground of some animal that he or she is unaware of is unacceptable under our system of law and within a civilized society.

I would strongly encourage members to consider adopting these amendments.