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.
