STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, December 4, 2001

• 0936

[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): Good morning.

[Translation]

Good morning everyone.

[English]

I call to order the 53rd meeting of the Standing Committee on Justice and Human Rights. Today we'll be doing clause-by-clause on Bill C-15B, an act to amend the Criminal Code (cruelty to animals and firearms) and the Firearms Act.

To assist us in our work today, we have as witnesses representatives of the Department of Justice and the Canadian Firearms Centre. Perhaps I will call on Mr. Owen to open up and ask them to introduce themselves.

Mr. Stephen Owen (Parliamentary Secretary to the Minister of Justice): Thank you, Mr. Chair.

It's good to see everybody here this morning. It looks like we have quorum to get started. Perhaps I'll just ask our colleagues to introduce themselves, first of all from the firearms side.

Mr. Gary Webster (Chief Executive Officer, Canadian Firearms Centre): I'm Gary Webster, the chief executive officer for the Canadian Firearms Centre. We have with us as well Kathleen Roussel, who's our legal counsel from the centre, and Al Goodall, who's the registrar for firearms with the RCMP.

With us today as well we have Murray Smith, who's the chief scientist for firearms with the RCMP; Gerry Patterson, the manager for the firearms initiative at CCRA; and Roger Lucy, deputy director, and Judy Korecky, trade policy analyst, for the export controls division. We're well represented on the expert side on firearms.

Also, we have Eric Goodwin, who's our chief firearms officer from the Atlantic region, as well as Steve Turino, who is with the minister's user group.

Mr. Stephen Owen: Thank you. With me as well is Karen Markham from the Department of Justice to speak to issues dealing with cruelty to animals.

Ms. Karen Markham (Counsel, Criminal Law Policy Section, Department of Justice): Thank you.

The Chair: Is it the desire of the witnesses to say anything to begin, or is it your preference that we go immediately and any questions could be put at that time?

Mr. Stephen Owen: I think we're willing to just proceed with clause-by-clause and the experts will help us in our deliberations as we go through.

The Chair: All right.

First of all, pursuant to Standing Order 75(1), consideration of clause 1 is postponed until the end. I would refer the committee to clause 2.

(On clause 2)

The Chair: We have an amendment proposed as BQ amendment 1.

Before Monsieur Lanctôt explains that, I should walk us through the information again. We received a number of amendments earlier and we received a number of amendments this morning. The ones we received by 4:30 last night are in package 1 and the ones that I guess would be identified as Bloc are in a separate package that we received this morning.

• 0940

This is BQ amendment 1 to clause 2. Monsieur Lanctôt.

[Translation]

Mr. Robert Lanctôt (Châteauguay, BQ): Thank you, Mr. Chairman.

There is also amendment BQ-6, which you do not have but will get. We are having photocopies made. There may also be some amendments to the firearms provisions, but much later on. There may be two or three amendments. I hope they get here on time.

As for amendment BQ-1, the evidence we heard suggested that there could be some confusion because of a double negative. In the amendment I am putting forward, the double negative has been removed. Only one negative is retained to ensure that one or the other may lead to exclusion, in order to determine whether registration is necessary or not.

So the idea is to state clearly that it has to be considered to be a firearm in order for there to be registration. Take paint balls, for example. We want it to be clear that the item has to be one or the other to be considered a firearm and for there to be registration. In order to clarify the provision, the double negative has been removed.

[English]

The Chair: Is there any response?

Mr. Webster.

Mr. Gary Webster: We haven't seen the actual background behind the determination that there is a double negative. With respect to the provision around firearms and paintballs, when you read paragraph 84(3)(d) in the context of subsection 84(3) of the act, the context should clarify the wording as it appears in paragraph 84(3)(d).

This is a modernization clause designed simply to ensure that air rifles and paintball guns meet the test of either the muzzle velocity or the energy velocity. If further clarification of that point is required, we can bring Mr. Smith to the table to answer the technical questions around the actual muzzle velocity.

The Chair: I think he's asked for that.

For the record, perhaps, Mr. Smith, you could identify yourself and your position.

Mr. Murray Smith (Chief Scientist, Firearms, Forensic Laboratory Services, Royal Canadian Mounted Police): Yes, sir. My name is Murray Smith and I am the chief scientist, firearms, for the Royal Canadian Mounted Police's forensic laboratory services.

The Chair: Did you hear the response as put by Mr. Webster and the amendment as proposed by Mr. Lanctôt?

Mr. Murray Smith: I haven't seen the text of the amendment.

[Translation]

The Chair: Mr. Lanctôt.

Mr. Robert Lanctôt: I will read you the passage with the double negative in it.

Okay, Mr. Smith?

[English]

Mr. Murray Smith: Yes.

[Translation]

Mr. Robert Lanctôt: I am going to read you the current provision of the bill and the amendment we wish to move. It is on page 1, in the French version of proposed paragraph 84(3)(d):

Where it says “n'est ni conçue ni adaptée”—neither designed nor adapted—that could cause confusion. There is a double negative, and furthermore, it does not refer to one or the other.

With the amendment we are presenting, the provision would read as follows:

That would make it clear that it is one or the other. It is not one and the other. The way it is currently drafted—“n'est ni conçue ni adaptée”—people could think it only applies if you have one and the other. I think that by drafting it the way we suggest, it shows very clearly that it is one or the other. If you fit within one or the other, you are excluded and do not have to register.

• 0945

[English]

Mr. Murray Smith: Yes, sir. Certainly the intention of the amendment is to provide for an exemption from registration if either the velocity is inferior to 152.4 metres per second or the energy is inferior to 5.7 joules. The text as drafted does say that, and I suppose any clarification on that is even better. If you read the English text, for example, it says in proposed subparagraph 84(3)(d)(i), “a shot, bullet or other projectile at a muzzle velocity exceeding 152.4 m per second or at a muzzle energy exceeding 5.7 Joules”. If the intention had been to stipulate that the firearm must exceed either one or the other in order to be subject to registration, that “or” would have been a “nor” in the English text.

So it's my opinion that as written, it does in fact mean that the firearm need be under only one of the two limits in order to be exempt from the registration and licensing provisions. However, I'm, as always, open to any clarification on that to make it easier to read.

The Chair: Thank you very much.

Mr. Blaikie and then Mr. Paradis.

Mr. Bill Blaikie (Winnipeg—Transcona, NDP): I think, Mr. Chairman, we need to hear from the government whether their interpretation is the same as what we just heard.

If I understand it correctly, this is about the whole issue of paintball. That's one of the things we've received a lot of mail about. I'm wondering if you had a chance to study that and whether these amendments now make it clearer that what we normally regard as paintball isn't covered by the firearms registry.

Mr. Murray Smith: Yes, sir. The paintball guns were exempted under the previous legislation and continued to be exempted under the revised legislation, because the velocity of the projectiles from paint guns always has been, and as far as I know always will be, less than 152.4 metres per second. That would be in keeping with the normal rules of engagement for that sport. The velocity, in general, to participate in those events is limited to about 90 metres per second, or in North American terms, 300 feet per second.

The Chair: Thank you, Mr. Blaikie.

Mr. Paradis.

[Translation]

Mr. Denis Paradis (Brome—Missisquoi, Lib.): Thank you, Mr. Chairman.

Is the only amendment to this section the replacement of what is underlined in our text—“or at a muzzle energy exceeding 5.7 joules”—or is the amendment to the whole section? I want to make sure I understand. It is a technical question.

[English]

Mr. Murray Smith: Yes, the underlined provision is the only change. It's the addition of the energy criterion in order to make it clear that the firearm need be under only one of the two limits in order to be exempted.

[Translation]

Mr. Denis Paradis: If that is the case, if the only change that is before us has to do with the words “5.7 joules”, the amendment moved by the Bloc Québécois would change the current text, which was previously accepted.

[English]

The Chair: Mr. Breitkreuz.

Mr. Garry Breitkreuz (Yorkton—Melville, Canadian Alliance): Thank you.

You were talking about paint guns, but what about air guns, air rifles? Would they be included? Would they have to be registered as a result of this clause?

Mr. Murray Smith: The purpose of the 5.7-joule criterion was to restore the status quo with respect to air guns that existed prior to the introduction on the market of high-velocity pellets for .177-calibre air guns. For many years, hand guns and many air guns sold for recreational purposes in Canada had velocities inferior to 152.4 metres per second. That changed in 1999, when manufacturers introduced new pellets designed to produce higher velocities. That caused a change in classification for many air guns that were previously not subject to the FAC requirements of the day.

• 0950

The purpose of the 5.7 joules, which is the energy equivalent of a standard-weight pellet at 152.4 metres per second, is to make it abundantly clear that those air guns that were previously unregulated continue to be unregulated and that those air guns that previously were regulated will continue to be regulated.

Mr. Garry Breitkreuz: I have one more question. The comment was made that we'd like to hear the government's opinion on this. Does it matter what opinion we have, sitting around this table? Does not this eventually come under the jurisdictions of the courts and how they interpret it? If there's some ambiguous wording here, would it not need to be corrected in such a way that the courts would not misinterpret what this particular section says?

Mr. Murray Smith: I agree with you that the court is the ultimate arbiter; however, in my view, the wording is not ambiguous. But if you wish the viewpoint of the government, then I will have to refer you to someone else.

Mr. Garry Breitkreuz: My point is I don't think it matters what the viewpoint is. It's what the courts will interpret this as actually saying.

The Chair: I'd like to think our time is worth something here.

Mr. Owen and then Madame Allard.

Mr. Stephen Owen: On this point, I'd like to ask Ms. Roussel to address the issue of clarity around what I think we've established as the intention behind the amendment.

[Translation]

Ms. Kathleen Roussel (Legal Counsel, Canadian Firearm Centre): With respect to the amendment moved by Mr. Lanctôt, what Mr. Paradis is saying is true. The expression “ni conçue ni adaptée” has been in the Criminal Code for a number of years. As far as I know, it has never caused any problems of interpretation. In French, it is normal to use “ni” twice when you want to exclude two different things. The idea here is to ensure that air guns or paint balls designed to have a muzzle velocity exceeding 152.4 metres per second are subject to registration. In addition, those that are adapted to have a muzzle velocity or energy exceeding the limits in the provision will also be subject to registration.

These things have never caused any problems. I see no reason to deal with this issue rather than a substantive issue.

The Chair: Ms. Allard.

Ms. Carole-Marie Allard (Laval-Est, Lib.): My colleague, Mr. Lanctôt, as a lawyer, must surely understand that it is like an amended statement of claim. Only the underlined part changes. Even though I do not agree with you that there is a double negative, the preceding text is in the current act and does not change. I do not want to belabour the point, but I think your amendment may be out of order at this time, since that is not what is at issue here today. That text is already in the act, and only the underlined phrase is amended. Do you understand, Mr. Lanctôt?

[English]

The Chair: Thank you.

[Translation]

Ms. Carole-Marie Allard: Put the question.

[English]

The Chair: At least look this way.

Mr. Breitkreuz.

Mr. Garry Breitkreuz: I have just one final comment in regard to what Ms. Roussel has said. This amendment wouldn't be in here if there hadn't been a problem previously. To dismiss it as not being a problem is I think not facing the reality of the situation. The RCMP in fact interpreted the bill to mean that air guns needed to be registered. That's why we have this before us. There are still comments out there that it's not clear.

The Chair: And finally, Monsieur Lanctôt.

[Translation]

Mr. Robert Lanctôt: To answer my colleague's question, I would say that what is added—“at a muzzle energy exceeding 5.7 joules”—means that paint balls and air guns may now be considered weapons that need to be registered. The provision begins with “the following weapons are deemed not to be firearms” and then includes a double negative with “n'est ni conçue ni adaptée”.

• 0955

If we make it clear that it is “n'est pas conçue ou adaptée”, that would clear up the existing double negative. We are not removing it, but making it clearer in the way the government wants, that is, one or the other.

People are telling me there has been no amendment. Well, there has, in fact, been an amendment. It did not have to do with the words “n'est ni conçue ni adaptée”. That is not the problem. Adding the words “at a muzzle energy exceeding 5.7 joules” included a number of firearms that previously did not need to be registered, and this would clear up that confusion.

So there has been an amendment, and that amendment would be clarified without removing all of the double negatives. The double negatives are in the original text and in the new text. Our amendment would clarify that it is one or the other.

[English]

The Chair: Not seeing a need for a response from this end, I'm going to call the question on the amendment to clause 2.

(Amendment negatived)

Mr. Garry Breitkreuz: I thought it was five for it and four against, Mr. Chairman.

The Chair: That's why you're there and I'm here.

Some hon. members: Oh, oh!

(Clause 2 agreed to on division)

(Clauses 3 to 7 inclusive agreed to on division)

(On clause 8)

The Chair: We have a number of amendments identified to clause 8.

Before we begin the discussion around these amendments, I would like everyone to understand as we go through clause 8—and I'll repeat this a couple of times during the course of this—if the first amendment to clause 8, which is PC/DR-1, is adopted, the following cannot be put: CA-2, CA-3, CA-4, G-1, G-2, BQ-2, BQ-3, BQ-4, BQ-5, BQ-6, BQ-7, BQ-8, BQ-9, BQ-10, and BQ-11. I want to make that point in terms of its impact on your disposition on PC/DR-1. As we proceed, there will be more of this, just to bring that to your attention.

So on amendment PC/DR-1 to clause 8, I turn to Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC/DR): Thank you, Mr. Chair.

This particular amendment, which deals with sections 444 to 447, would in essence adopt the provisions of the bill, but if this amendment were adopted, it would leave the sections dealing with animals in part XI of the Criminal Code. The reasons, as we have heard from a number of witnesses, stem from the concern that those who harvest and deal with the husbandry of animals for their livelihood will be directly affected by what many have called frivolous prosecutions or cases that will wind up before the court where the onus will be on those individuals dealing with animals to prove their innocence.

The same level of legal protection, I would submit, will be still afforded to individuals if we simply adopt these sections but leave them in part XI of the Criminal Code. The legitimate practices, the lawful and justified practices, the colour of right excuses, will remain in place and intact. It will, I would submit, prevent farmers and sporting groups and researchers from being subjected to unjust prosecutions.

So it's a rather simple amendment adopting the government's legislation but leaving it in part XI of the Criminal Code.

• 1000

The Chair: Is there any response?

Mr. Owen.

Mr. Stephen Owen: I can invite Ms. Markham to elaborate, but this is a major policy initiative of government to move it out of the property section of the Criminal Code, for reasons that have been followed in many other jurisdictions. As far as the issues go with respect to providing the same level of protection for currently lawful practices, such as animal husbandry, sporting, medical research, or other activities, I think it will become clear that the amendments the government is proposing will make the continued availability of those defences abundantly clear.

As I say, this is a major policy issue for the government. We think this would be a step back from where we're trying to go.

The Chair: Mr. Toews and then Mr. McKay.

Mr. Vic Toews (Provencher, Canadian Alliance): Unfortunately, sir, I didn't have the luxury of being in those other jurisdictions when those sections were moved into a separate section, so perhaps you could explain to the committee the reasons that other jurisdictions chose to move them out of property rights and put them into a new section. I share the concern of my colleague from the PC/DR.

The Chair: Ms. Markham.

Ms. Karen Markham: Thank you.

I can indicate, Mr. Toews, that both in the United States and in Europe—I'm thinking specifically of the United States—the reason that the animal cruelty provisions were put into their own separate part was in recognition of the fact that the interests that are being protected are different from the status of animals as property. It was not to negate their status as property, but it was a recognition essentially that the interests being protected were different.

The same concerns were raised in those jurisdictions, but interestingly enough, the concerns were not borne out by actual practice in terms of specious prosecutions, etc.

I do have some comments to respond to Mr. MacKay in turn, Mr. Chair. Would you like me to proceed now?

The Chair: Proceed.

Ms. Karen Markham: One of the very important reasons for the decision the minister has made to move the provisions out of part XI is that currently part XI is not clear vis-à-vis the interest that's being protected, in the sense that there are anachronistic concepts in the provisions. There are, as you know, some sections that speak to particular animals, as opposed to all animals. There are overlaps in terms of the type of behaviour that attracts criminal liability. The minister in her speech on Thursday went through some particularly confusing provisions. Paragraph 446(1)(a) comes to mind, in the sense that it's not at all clear that there are two offences in that provision as opposed to one.

There are many reasons for clarity. The policy behind the move out of part XI is to be very clear that the interest that's being protected is the interest that has been dominant in the law, if you like, since 1953, which is that human beings have every right to use animals in the ways we've identified before this committee—that right is not unchallenged—but when they do so, they must have regard for their capacity to feel pain and factor that in when they're dealing with them.

Also on Thursday there was a discussion—and I recall that you were not able to be there—in which we talked about some protections in Bill C-15A vis-à-vis the frivolous prosecutions concern that you had. We specifically went through the fact that there will be, in Bill C-15A, a new section 507.1. Because the animal cruelty provisions are hybrid offences, the Interpretation Act says they will be of course treated as hybrid offences. The benefit of proposed section 507.1 is that a screening mechanism is done by a provincial court judge very early in the process, long before a summons or a warrant is issued. If you like, I can go into detail about that process. That's a very, very powerful tool in terms of screening out frivolous or vexatious prosecutions, and it will be done before the accused is even brought to court.

The Chair: Mr. MacKay, then Mr. Blaikie.

Mr. Peter MacKay: Thank you.

Ms. Markham, is this screening process proposed in a future amendment that we're going to be dealing with?

Ms. Karen Markham: Yes, in Bill C-15A.

• 1005

Mr. Peter MacKay: Perhaps when we come to that we can ask you some questions about that, because I am very interested in the concept of a provincial court judge screening out. I'm wondering if we can just go back for a moment and if you can cite some specific references in both Europe and the United States, if they are state legislatures or European countries, because I've yet to see these actually identified.

With respect to the current Criminal Code sections, I want to be very clear on this. Is it your understanding that under the current sections of the Criminal Code, prior to any of these amendments and prior to this bill being passed, the crown cannot proceed on a charge where the animal ownership is in question, or where the animals that may be the alleged victims in a case are wild animals, animals that are considered domestic strays, or animals that are not associated with a person, in terms of the property sections currently? Is that your understanding?

Ms. Karen Markham: There are different provisions, as you know.

The Chair: Ms. Markham, I want to correct an impression that needs to be corrected, before I forget.

There was a reference made to amendments in Bill C-15A, and Mr. MacKay suggested that perhaps there would be an amendment put and we might discuss it or ask questions later. Bill C-15A has been through this committee and has been reported to the House. It was the first—

Mr. Peter MacKay: I know that. Did I say Bill C-15A? I meant this bill.

The Chair: The reference was to Bill C-15A, I believe.

Ms. Karen Markham: I mentioned Bill C-15A.

Mr. Peter MacKay: Oh, I'm sorry.

The Chair: I just didn't want to give the impression there was an amendment coming.

Mr. Peter MacKay: No, Bill C-15A is long gone.

Ms. Karen Markham: Just to very quickly answer your question, on section 444 regarding cattle—and there's an expanded definition of cattle in section 2 of the code, as you know—case law has held that that applies to both stray and domesticated cattle, where ownership can be established.

Section 445 talks about other types of animals kept for lawful purpose, and successful prosecutions with respect to strays have not happened with respect to those offences. Wild animals are captured under paragraph 446(1)(a), in terms of unnecessary pain and suffering.

So to use a colloquialism, it's a mixed bag at the present time.

Mr. Peter MacKay: But ownership is not a condition precedent to securing a prosecution on an animal, under the current sections.

Ms. Karen Markham: Not in every single section; ownership and lawful purpose usually go hand in hand for section 445.

Mr. Peter MacKay: Can you envision a situation for us, before this legislation, where an animal could not be victimized and a prosecution could not proceed because of the issue of ownership?

Ms. Karen Markham: If a stray animal comes onto an individual's land and they decide, for example, to shoot the animal, even though it is not bothering any sheep, or whatever, there may be difficulty with a prosecution.

Mr. Peter MacKay: But that's more factual, as opposed to the issue of how the animal is treated. That becomes an issue of a person protecting their property. It's different to shoot an animal than to trap it with a leg iron, and then go about abusing it in a cruel fashion.

Ms. Karen Markham: I would agree with you that in the majority of criminal cruelty cases, which usually revolve around either unnecessary pain or suffering or neglect, ownership is not an issue. But I think my point was that there are some anachronisms in the law, in terms of the way the offences are set out, the distinctions made between various animals, and certainly some of the confusion in terms of overlapping elements of an offence.

Maiming and wounding, for example, in section 444 relating to cattle could also fall under paragraph 446(1)(a), causing unnecessary pain and suffering.

So the current provisions, as proposed in Bill C-15B, are an attempt to very clearly set out not only the elements of the various offences, but also the requisite mental element.

Mr. Peter MacKay: But with the greatest respect, Ms. Markham, that's exactly what I'm trying to clarify here. Simply put, the current sections of the Criminal Code do not bar prosecution by virtue of ownership. Is that correct?

Ms. Karen Markham: As I understand your amendment, it is basically replicating the provisions in Bill C-15B—

Mr. Peter MacKay: And leaving it in part XI?

Ms. Karen Markham: That's right. I suppose I've been speaking to the policy of why the government has wanted to move it from part XI. You may disagree on the policy, but that's my attempt to explain why the move was made.

Mr. Peter MacKay: Okay, but my point with this amendment is that leaving it in the current part XI, these prosecutions would continue with the same force, the same attachment, irrespective of this element of property. It would have no effect whatsoever on your ability to proceed with prosecutions, if it remained in section 11.

• 1010

Ms. Karen Markham: I would perhaps suggest that if your primary interest in the cruelty provisions is to protect animals from pain and suffering, it is inconsistent to leave it in provisions that relate to property.

Mr. Peter MacKay: How?

Ms. Karen Markham: The property status of the animal is not the primary interest that's being protected. It makes sense from a policy perspective, if you're speaking to the protection of them from the infliction of unnecessary pain and suffering, to have it in a separate part.

Mr. Peter MacKay: Let's be clear, Ms. Markham. When we're talking about prosecutions, we're talking about after the fact; we're not talking about prevention any more. We're talking about the prosecution, and the successful prosecution.

We may disagree on policy, but leaving it in section 11 would not affect the outcome of prosecutions, because the element of property, I'm suggesting to you, is not a prerequisite to a successful prosecution.

Ms. Karen Markham: I think it's very difficult to speculate on how it would affect the regime. We're taking a regime that's attempting to clarify the actus reus and the mens rea, but keeping it in a provision in respect of which the other offences in part XI relate to property.

There seems to be, from my perspective and that of the department, an inconsistency in terms of that provision. If the interest we're trying to protect is clearly against unnecessary pain and suffering, perhaps the question can be asked, what mischief is created by having these provisions moved to their own separate part?

Mr. Peter MacKay: We can debate this, I suppose, but with individuals who deal with animals in a way that might be brought to prosecution, the mischief will be at their expense, at their time, and at their loss, if they wind up before the courts on a charge that is unwarranted.

Ms. Karen Markham: I think the frivolous prosecution mischief issue is a separate one.

Mr. Peter MacKay: Well, it won't be for those who are charged.

Ms. Karen Markham: That can be addressed separately.

The Chair: Mr. Toews.

Mr. Vic Toews: The witness has indicated it would be difficult to speculate on the impact of the change. We're not here to speculate; we're here to give some certainty to the law. That was my understanding of what was happening here.

I still haven't heard the answer to Mr. MacKay's question on the impact of ownership. Are you telling this committee that ownership is an issue; therefore, we have to move these provisions out of part XI and into a new part?

Ms. Karen Markham: I think it's a misstatement to say that. Perhaps I need to clarify that the primary reason for moving the animal cruelty provisions out of the property provision is not because ownership is an issue. The very point we're making is that ownership is not an issue. The difficulty is that the way the offences are constructed, there are a number of complexities and problems.

Mr. Vic Toews: I just want to deal with the issue of ownership. I understand there's a policy rationale behind here, but I'm looking at it as a prosecutor. You're telling us that whether this section is in part XI or in a new part, the issue of ownership is irrelevant to the prosecution.

My concern is similar. Are you saying that if somebody wilfully abuses an animal, whether it's owned or not by someone, there is some complication in the prosecution if we leave it in this part?

Ms. Karen Markham: I think the difficulty has been multifaceted. The provisions are very complicated and it's been difficult for the courts and prosecutors to interpret these provisions. I can give you two examples, if you wish, if that would be of assistance.

Mr. Vic Toews: Yes.

Ms. Karen Markham: As the minister indicated on Thursday—and I alluded to earlier to Mr. MacKay—if you look at paragraph 446(1)(a) of the Criminal Code now—

Mr. Vic Toews: What page are you on in the annotated Criminal Code?

Ms. Karen Markham: I believe it's 685.

• 1015

Mr. Vic Toews: All right.

Ms. Karen Markham: If you look at that offence now, it would appear to set out one offence only, because it talks about “willfully” causing unnecessary...or “willfully” permitting, meaning the owner willfully permits unnecessary suffering or injury to an animal.

A person would have to go to subsection 429(1) of the code to know that “willfully” includes “recklessly”. So you have two modes of committing an intentional cruelty offence.

Then one would have to go to subsection 446(3) to find out that in fact for the purposes of paragraphs (a) or (b), there is a concept of neglect as well. So in fact there are two offences set out in paragraph 446(1)(a), not one—two modes of committing one offence, but two separate offences.

Mr. Vic Toews: All right. So what does this have to do with the ownership issue?

Ms. Karen Markham: Mr. Toews, I'm not suggesting the ownership issue is the primary reason for updating the provisions. I think that—

Mr. Vic Toews: It's not the primary reason. Tell us how the issue of ownership in the present code complicates prosecutions today. I think we have a right, as a committee, to know the answer to that very simple question. Mr. MacKay has asked you that question; you didn't give an answer. I've asked you that question; you still haven't given us an answer.

Ms. Karen Markham: I think I pointed out that the difficulty with...the primary reason for the move out is—

Mr. Vic Toews: No, I'm asking the question, what is the issue in respect of ownership? Is there an issue or is there not an issue? That's what I want to know.

Ms. Karen Markham: I think there is an issue vis-à-vis prosecutions of section 445 offences, because it relates only to animals that are kept for a lawful purpose, in terms of current provisions. But the issue of ownership is not the primary reason for the changes.

The Chair: I think we've heard everyone's position.

Mr. Vic Toews: I want to move to another issue then.

The Chair: On the same amendment?

Mr. Vic Toews: Yes.

I think this screening process is very important to how I'll be voting on this particular amendment. I want to know a little more about a screening process before a provincial judge, if you could explain what that process is and how it will impact here.

The Chair: Mr. Owen.

Mr. Stephen Owen: Mr. Chair, this, as Mr. Toews points out, is a difficulty in the way we're proceeding, and I don't know if there's an answer for it. We don't have the benefit of knowing, as we debate each amendment as presented, what other amendments are being suggested, and I think we may find in our discussions as the morning rolls out that some of the amendments the government is proposing, including this one, should put to rest many of the fears that are being raised.

Mr. Vic Toews: And that's very legitimate, because I have a number of amendments that I want to make to this bill, and if there is a subsequent amendment being proposed by the government that will ease my concerns in other issues, let's raise that now and not waste the committee's time. So let's talk about that screening issue, just so we know the concerns raised by Mr. MacKay or me are groundless in view of a possible other amendment that will be coming up.

The Chair: First of all, the process is relatively simple: with consent we can do whatever we want. So if everybody wanted to give me unanimous consent to move directly to the government amendments...however, understand that we might pass a government amendment that would then cause all of the other amendments that have been put by everybody.... It may very well be it could have that effect. The reason—

Mr. Vic Toews: As a point of clarification, I'm not asking to move to that amendment. I'm asking the witness to explain a proposed amendment, because that will affect my vote here.

Mr. Lynn Myers (Waterloo—Wellington, Lib.): Mr. Chairman—

The Chair: Mr. Myers, on a point of order.

Mr. Lynn Myers: It's not up to a witness to explain government amendments. It is, however, up to Mr. Owen to do that. That's his position.

Mr. Vic Toews: All right, I'll ask Mr. Owen.

Mr. Lynn Myers: I'm not in the position of having staff explain government amendments. I am, however, in the position of asking Mr. Owen to do precisely that. So let's get on with it.

The Chair: To clarify Mr. Toews' intervention, it wasn't to put the amendments out of order, but he's suggesting that if the discussion around amendment PC/DR-1 can be informed by reference to amendments that will come from the government in the future, they should perhaps be brought forward now to clarify the government's position on amendment PC/DR-1.

• 1020

Mr. Stephen Owen: I'll give you the general answer, and the officials can give you more specifics. The proposed amendment that would come in the House to Bill C-15A would relate to this.

As I understand it, by virtue of the fact of these offences becoming hybrid offences from summary conviction offences, there would be a notice to the Attorney General if a private prosecution came forward, and there would be a screening hearing before a provincial court judge. At that time, the Attorney General, or the prosecution for the crown on her behalf, could stay the proceeding, or the provincial court judge could screen it out.

Now, you can provide more details to that, but the key point is that the increase in the severity of offences and making them into hybrids kicks this opportunity into existence.

I would ask Ms. Markham to....

The Chair: Okay.

Ms. Markham.

Ms. Karen Markham: Thank you.

I'll just make some clarifications on some of the specific elements in terms of the screening process, as we've called it.

What would happen is once a justice receives an information under section 504 of the Criminal Code—and that's an information anyone can lay in respect of an indictable offence, which would include informations laid by private individuals—the information would be referred to a provincial court judge, or in Quebec a judge of the court of Quebec, or a designated justice.

This is in Bill C-15A, as it currently is, and, as I mentioned, it's in subsection 507(1) of the code.

What would happen is the judge or designated justice would be permitted to issue a summons or warrant only after the Attorney General had been notified of a hearing, a hearing had taken place, and the Attorney General had an opportunity to call witnesses, cross-examine witnesses. This would be in front of the designated justice or judge. At the end of that process, the judge or justice would be able to confirm essentially the criminal process on that information.

If the information was deficient or did not appear to be supported by sufficient evidence, then process would not issue.

The Chair: Okay.

Mr. MacKay.

Mr. Peter MacKay: So this is basically a preliminary inquiry. Is it the same test if a jury properly instructed could convict? Or is it sufficiency of evidence? I'm not clear whether it's the judge or the Attorney General who ultimately decides. Or do they both have a say in it?

Ms. Karen Markham: I'm at somewhat of a disadvantage, as you can appreciate, because I was not counsel who appeared during Bill C-15A.

Mr. Peter MacKay: You're not nearly as much at a disadvantage as we are.

Ms. Karen Markham: We're doing our best.

In terms of subsection (5)...just get to the.... I'll take a minute to take a look at the specific provision in terms of the test.

Mr. Vic Toews: I have a point of order.

The Chair: Vic Toews.

Mr. Vic Toews: The witness is reading from a particular document. Perhaps she could share that with us.

Mr. Karen Markham: I would be happy to. It's Bill C-15A.

Mr. Vic Toews: Thank you. I appreciate the witness clarifying what document she's reading from.

Mr. Peter MacKay: Since we're here studying Bill C-15B, I can understand Mr. Toews' question.

Ms. Karen Markham: This provision does not appear to set out a test per se.

Mr. Stephen Owen: It would seem to me, Mr. Chair, that the test, confirmed by the justice or the provincial court judge after hearing from the Attorney General or his representative, would simply be that it met the test of issuing process, which would be reasonable and probably grounds.

It would not be a preliminary inquiry. The process would not have been issued yet at this stage. It's a preliminary screening process, given that it's an indictable offence or a hybrid offence, which would be treated as indictable at this stage.

Mr. Peter MacKay: So would this take place in an open court room? Is it in camera? Is it in a chamber?

The Chair: Mr. MacKay, I would ask members to remember to get the attention of the chair, because we have a speaking order.

So we have Mr. MacKay, Mr. Toews, and Mr. Breitkreuz.

Mr. Peter MacKay: Thank you, Mr. Chair. I apologize.

• 1025

You say there's no set process. You believe it would be based on reasonable and probable grounds. I would like to know if this process will be occurring in an open court room. I believe Ms. Markham indicated you could call witnesses. That would indicate it would be in a court room.

Is it in camera? Is a person entitled to have counsel at that time? Will this occur for both summary and indictable offences? When is the election made? When does the crown have to indicate whether they're proceeding by indictment or not—before or after this process?

The Chair: It's important, Ms. Markham, to make sure every response is recorded.

Ms. Karen Markham: Yes.

I can indicate at least two answers to your questions; either would relate to indictable offences only. The crown election would come after, because this is a process in respect of which process on the information is confirmed. It's prior in the process to the crown election. My understanding is it would be an in camera type of hearing, but a hearing where both sides would be represented.

I perhaps could have the opportunity to read around the provisions. There might be some more details I could provide.

Mr. Peter MacKay: Thank you.

The Chair: Mr. Toews.

Mr. Vic Toews: I'm just trying to understand. We have essentially a provincial judge, do we, reviewing the sufficiency of evidence in order to make a determination as to whether an information can proceed?

The Chair: We need an oral response for the record.

Ms. Karen Markham: Sorry. Yes. That's in respect of an information that is not—or a prospective prosecution that is not—being conducted by the Attorney General.

Mr. Vic Toews: And it also relates to a prosecution that will be proceeded with by way of indictment rather than summary conviction.

Ms. Karen Markham: That's right.

Mr. Vic Toews: In view of the amendments being proposed by the government respecting the increase in penalty for summary conviction, you could proceed on a frivolous basis as long as the private prosecutor proceeds summarily rather than by indictment. You could avoid this entire process.

Ms. Karen Markham: You wouldn't be subject to the process that's set out in Bill C-15A, but there is the provision in the Criminal Code that relates to both indictable and summary conviction matters—I believe it's section 579—that allows the Attorney General to intervene and to stay any prosecution that might be frivolous.

Mr. Vic Toews: That provision applies presently, in respect of all informations. What you're essentially doing is setting up a certiorari process for a provincial judge and giving a provincial judge the jurisdiction to review a process. This prerogative writ function—certiorari, essentially—is being given to a provincial judge.

Ms. Karen Markham: I'm not sure I would agree with the characterization of it. I think it addresses concern that has been expressed about use of the court—particularly in respect of indictable matters—for any frivolous or vexatious prosecutions, or those that won't be borne out by subsequent evidence.

Mr. Vic Toews: Let me put one last question, then, in this context.

If, let's say, a farmer is facing an indictable offence—and all the necessary expense—not only will the possibility of proceeding by way of certiorari to quash the information be available, he will have this review process to go through. Then he will have a preliminary hearing to go through. Then he will have the trial.

Mr. Stephen Owen: I would make a couple of points, Mr. Toews.

This is a preliminary screening process triggered by virtue of the fact that it is an indictable offence, presumably being proffered by a private person. A hybrid offence is presumed to be indictable for this process. For the new offences, which are hybrid offences, it's not up to the informant to determine and the private prosecutor to decide whether it shall proceed by indictment or by summary conviction.

• 1030

The nature of it, being a hybrid, would trigger this. It would presume it to be indictable for the purpose of this screening process. The importance of it is, of course, to speak directly to the concern that's been raised that people will be brought before the courts on frivolous and vexatious charges, which will be time-consuming, will cost money, and whatever. So this is to screen out—

Mr. Vic Toews: But that's not the question, Mr. Owen. I was asking, what are the procedures, now, that these poor accused are going to have to go through? There's the possible certiorari to quash an information; a screening process, which would be a contested hearing because we're bringing in witnesses, in camera; then we have a preliminary hearing; and then we have the trial. Is that a possibility under the act?

Mr. Stephen Owen: What I foresee is that the accused person, or the would-be accused person—the subject of the information—wouldn't need to be there at all. It's a pre-screening process where the Attorney General must be given notice, so that.... They can certainly be there, but they're not the subject of it. It's the subject of the accusation, which, if it's frivolous and vexatious on the face of it, will not be proceeded with. That's the point.

Mr. Vic Toews: Well, I certainly don't see the point, because what you're saying now is the individual whose liberty is at stake doesn't have to appear at this hearing in order to give evidence; he just has to send his or her lawyer.

Mr. Stephen Owen: Mr. Toews, in criminal process, the accused is not there when an information is sworn. A justice of the peace determines whether it meets a sufficient standard.

Mr. Vic Toews: Right.

Mr. Stephen Owen: This is a process that builds on that for indictable—which include hybrid—offences at that stage of the proceedings to screen out, without bothering an accused, frivolous and vexatious cases, just as a justice of the peace, when someone seeks to swear an information, would screen out something that obviously didn't meet the basic test. This is for the benefit—

Mr. Vic Toews: But that is the process already in place. When you bring an information to be sworn in front of a justice of the peace, the obligation is on the justice of the peace to satisfy himself or herself that it is not frivolous and vexatious. You're saying that the justice of the peace, on an ex parte basis, will continue to do that. Now we have another process that will do essentially the same thing, but we could inject a lawyer into the proceedings. Then we possibly have a preliminary hearing that will determine whether there are reasonable grounds to have the matter proceed to trial, and then we'll have a trial. All I want to know is, is that process I've just described a reasonable scenario under your provisions?

Mr. Stephen Owen: It's perhaps set up to protect people against frivolous and vexatious—

Mr. Vic Toews: No, you're avoiding the question, Mr. Owen. I'm simply asking, is that a reasonable scenario? That's all I'm asking.

Mr. Stephen Owen: Are you asking whether that is reasonable or whether that could happen?

Mr. Vic Toews: Mr. Chair, I think this witness is being evasive. I'm simply asking, could that happen under this process?

Mr. Stephen Owen: It sounds possible to me.

Mr. Vic Toews: Yes, all right.

The Chair: Mr. Breitkreuz is next, then Mr. McKay.

Mr. Garry Breitkreuz: Mr. Chair, I have to really raise my concerns in regard to this legislation. Not being a lawyer, I realize there's a tremendous amount of uncertainty here, and our witnesses are not able to assure us that this is going to unfold in a way that will protect the traditional practices that farmers and ranchers have been able to use.

Is it not true that this legislation will, as it unfolds, depend a lot in its implementation on the opinion of the court, of the judges to whom this is brought? To me, it seems we're putting in place legislation about which we do not have any idea how it will unfold. We're putting more power into the hands of judges, into the hands of courts. We don't know at this point what impact it's going to have on hunters, fishermen, ranchers, farmers.

• 1035

How can you assure us that this legislation is going to be clear and will unfold in a certain way, when it could be applied in ten different ways across this country, depending on which province you're in or what judge you come before? I mean, is that not a huge factor, according to what you've just described in all of this? It's not even an open process, in a preliminary sense.

The Chair: Point of order, Mr. Paradis.

[Translation]

Mr. Denis Paradis: Mr. Chairman, I do sympathize with my colleague and am willing to hear about what could happen and so on, but I would like to remind all committee members that we are currently dealing with Mr. MacKay's amendment. I think we are dwelling on a subject that is not even before us.

It was fine to get an idea of what was coming up, but I think we have also learned what might come up. Could we get back to the issue at hand now, Mr. MacKay's amendment?

[English]

The Chair: I think there's value in the point about the need to discuss the amendments that haven't come back to the House yet. As has been brought up, in form this particular amendment to Bill C-15B is important. But the point is made that it's not time to debate that; it's simply time to inform this deliberation of its existence.

The fact that members may not have liked Bill C-15A and what it did in the context of the process it invited is a debate that has passed. At this place, we've dealt with Bill C-15A. But the point that is important is that that bears on this debate. I think Mr. Paradis is right in saying we've probably informed ourselves sufficiently, but I'll give the last word to Mr. MacKay and then I'll call the question.

Mr. Garry Breitkreuz: Excuse me, Mr. Chairman. I've asked a question of our witnesses and I've tried to explain it and give them a chance to think through the ramifications of why I'm asking that question, because it bears on this amendment.

The Chair: I apologize to Mr. Breitkreuz. I'll allow the answer. Then we'll go to Mr. MacKay, and then I'll call the question.

Mr. Owen.

Mr. Garry Breitkreuz: Do I need to go through the question again?

Mr. Stephen Owen: No, no, I think it was quite clear, thank you.

Mr. Chair, the whole purpose of this screen is to speak to the concern that was expressed that private prosecutions may be taken for frivolous or vexatious purposes, to use the animal cruelty amendments to reach unintended consequences.

What is being described here is a process, which is the same process one would think, but with the elaboration of a tighter screen. It may be a justice or it may be a provincial court judge. But what the honourable member has mentioned with respect to judges perhaps doing different things across the country, of course, is the situation in our legal system. That's why we have appeals, to clarify issues. But this is for the purpose of screening out frivolous private prosecutions, and it is available because the offences are hybrids that are deemed to be indictable.

Mr. Garry Breitkreuz: But my question is not...the interpretation of frivolous and vexatious will depend on the opinion of that judge.

Mr. Stephen Owen: That's our system.

The Chair: Mr. MacKay, do you have any final comments before I call the question? It's your amendment.

Mr. Peter MacKay: Yes, I have one final question with respect to this new process. I don't want to prolong this because I know we'll inevitably come back to it at some point. If it was intended to respond to this particular type of scenario, with private prosecution relating to cruelty to animals, why is it in Bill C-15A? More to the point, I guess, given that this will impact section 507 in the Criminal Code, this isn't going to apply to just private prosecutions; it's going to apply to everything. Isn't that correct? It's a bit like the new Youth Criminal Justice Act. It's going to create a whole new process that applies to the whole Criminal Code of Canada. Isn't that correct?

Mr. Bill Blaikie: That's a good question, a very good question.

Mr. Stephen Owen: This will only apply to informations laid by a non-peace officer, because section 507 has been amended as well.

Mr. Peter MacKay: But it applies to everything. It's not only a cruelty to animals provision. This applies to the entire Criminal Code.

Mr. Stephen Owen: That's right, it's a general provision.

Mr. Peter MacKay: Right, okay.

The Chair: Okay, I'll call the question on PC/DR-1.

• 1040

(Amendment negatived—[See Minutes of Proceedings])

The Chair: Now I go to CA-2. I understand CA-1 has been withdrawn.

Mr. Vic Toews: That's correct.

The Chair: I go to CA-2, and for your information, that will be in the first package also.

Mr. Vic Toews: In respect of CA-2, I'm just wondering.... I know what the intent of this amendment is, but is this amendment not identical to the one that was just defeated?

The Chair: CA-2 can be heard, so it can't be identical, I'm advised, and it is consequential. So if CA-2 is passed, then all of the list I read the last time is also out of order.

I'm advised that CA-2 is in order, and as a result, I take this opportunity to advise that if it is passed, CA-3, CA-4, G-1, G-2, and Bloc 2 to Bloc 11 are all out of order.

Mr. Vic Toews: All right.

I have some difficulty here. I can't find a distinction between PC/DR-1 and CA-2.

The Chair: One moment, I'll confer with the procedural—

Mr. Vic Toews: I don't want to waste time—

The Chair: No, none of us want to do that, Mr. Toews, I promise.

My apologies. We admire your quick eye, Mr. Toews.

Now to CA-3.

Mr. Vic Toews: So CA-2 is out of order then?

The Chair: Yes, it's out of order.

Mr. Vic Toews: Thank you.

The Chair: Now we go to CA-3, and if CA-3 is adopted, CA-4 cannot be put.

Mr. Vic Toews: CA-3 is in respect to the amendment of the definition of “animal”. We heard from numerous witnesses that the definition of “animal”, as proposed by the minister, is too broad. The department has argued that by providing a definition of “animal” where one does not currently exist, it narrows the definition while adding clarity. The proposed definition of “animal” contemplates the protection of non-human vertebrates and all animals having the capacity to feel pain. As noted by witnesses, this definition marks a significant change by providing protection for a broad range of living organisms that historically have never been protected under the law.

As worded, the definition will cause enormous problems by extending the criminal law to invertebrates, cold-blooded species such as fish—some might include politicians as well—as well as a wide assortment of wildlife.

A voice: Let's not include politicians.

The Chair: Mr. Toews was never cold-blooded.

Mr. Vic Toews: In any event, coupled with the move out of the special properties section, the inclusion of such a broad definition of “animal” will serve to add a lot of uncertainty. What the minister has made clear is that she does not want any substantive change in this legislation from what was previously the law.

• 1045

By including this definition of animal, which is too broad, as has been noted by many witnesses, we are in fact causing substantive changes beyond simply the movement of these provisions from one part to the other. Those are my comments.

The Chair: Thank you, Mr. Toews.

Mr. Owen, do you have any comments?

Mr. Stephen Owen: The intention of this clause, including this definition, is to deal with the capacity to feel pain. Mr. Toews is right that we've heard some evidence that there can be some difficulty as to determining whether, with regard to some particular species, they can feel pain or not, given the criminal burden of proof. It seems to me if there were any reasonable doubt, that of course would go in favour of anyone against whom an action was brought under this section, so I don't see why that should cause a problem. The doubt would be resolved in favour of any accused, but the policy purpose is to deal with species that have the capacity to feel pain. That's integral to what we're doing here.

The Chair: Mr. Paradis had his hand up first.

[Translation]

Mr. Denis Paradis: Mr. Chairman, I was going to call for the question, but first let's let Mr. Toews have the floor.

[English]

The Chair: Mr. Toews.

Mr. Vic Toews: Thank you.

How does this definition add clarity to the common law definition that has evolved over the last number of years and decades?

Mr. Stephen Owen: It speaks directly to the objective of this legislation, which is to deal with the welfare of animals subjected to unnecessarily inflicted pain. I note that the Alberta animal welfare legislation defines “animal” as simply not being a human being, which is much broader. This tries to limit the application of this clause to the issue of pain. It provides clarity, and it also limits the application of the section.

The Chair: Mr. Toews.

Mr. Vic Toews: Does the definition as proposed expand the common law definition that has evolved over the last number of decades?

The Chair: Ms. Markham.

Ms. Karen Markham: Thank you.

There is no common law definition of animal per se. There have been animals that have been dealt with by the provisions, and they tend to be of a certain sort. They tend to be mammals. There's a strong argument for saying that because there is no definition of animal in the code, any living creature could fall within the provisions of the code. This is an attempt to define the application of the code to animals in a way that is consistent with the policy objectives as well, remembering that the onus will be on the crown to lead this evidence and prove it beyond a reasonable doubt.

The Chair: I want to call the question. I think the arguments are understood.

Mr. Vic Toews: No, I don't think they are understood, Mr. Chair, and I do want to ask one more question.

The Chair: Okay, you have one more question.

Mr. Vic Toews: Now, I appreciate that there is no statutory definition, but clearly the courts work with a common law definition of animal developed through the case law. Are you telling this hearing that the definition as proposed does not in any way legally expand the definitions the courts have been working under for the past number of decades, let's say since 1953?

Ms. Karen Markham: Are you speaking in the criminal context?

Mr. Vic Toews: That's correct.

Ms. Karen Markham: I would suggest that it does not expand the definition.

Mr. Vic Toews: So in respect of your testimony, any animal that did not fall under the definition as considered by the courts prior to this definition will not now fall under this new definition.

Ms. Karen Markham: The statutory definition will prevail. My suggestion is that we didn't have a statutory definition before, so the category was open.

• 1050

Mr. Vic Toews: I'm just trying to clarify this. Are you saying that your intention is not to expand it beyond what was the definition of animal as used by the courts between 1953 and the date this legislation passes?

The Chair: Mr. Owen.

Mr. Stephen Owen: Mr. Toews, the intention is to bring clarity to the law around the public policy purpose of trying to protect animals against unnecessary pain. Therefore, pain is put in the definition for that very specific policy purpose.

Mr. Vic Toews: Animals that are not now within the purview of the court's consideration when they look at current legislation may well be included because we now essentially have a definition that deals with the capacity to feel pain as opposed to some other definition.

Mr. Stephen Owen: I can't answer that question. What I can explain is the plain meaning of the definition, which is consistent with the policy objective to protect animals against unnecessary pain.

Mr. Vic Toews: Your testimony is that you wanted it in order to bring clarity, and I'm asking for clarity. That's a pretty simple question I've just put to you.

Mr. Stephen Owen: Well, Mr. Toews, you know as well as I that different courts faced with the same situation might come to different conclusions under the current legislation. On this legislation, courts will have the benefit of having to determine whether a case meets this test. As Ms. Markham has mentioned, the crown would have the obligation to meet the high criminal burden of proof if there were any doubt that a particular animal had the capacity to feel pain. You've mentioned and we've heard some evidence that clearly...well, it's self-evident that at some place within the differentiation among animals, between those that feel pain and those that don't, there will be some doubt, and around that doubt will be an acquittal.

The Chair: Thank you very much. I'm going to go to the question, Mr. Owen.

(Amendment negatived—[See Minutes of Proceedings]).

The Chair: Now we go to amendment CA-4. I would advise the committee that CA-4 and BQ-2 are identical, so as CA-4 is put, BQ-2 is out of order.

Mr. Toews.

Mr. Vic Toews: What this essentially does is propose a measure of clarity ensuring that the definition of animal is limited to vertebrates other than human beings and get rid of the issue in respect of invertebrates. This is done for clarity, and it is indeed consistent with the case law that has developed up until this time. This amendment is consistent with the minister's publicly stated intention not to change the substantive impact of the law.

The Chair: I think we all understand that. I'll call the question on this because it's very clear.

Mr. Lanctôt.

[Translation]

Mr. Robert Lanctôt: I would like to add the fact that we have heard witnesses. First of all, it is true that it is consistent with what Minister McLelland has said. The definition should only include the words “means a vertebrate, other than a human being”.

In addition, witnesses, especially prosecutors and police officers, told us that the problem with charges and informations involving cruelty to animals had to do with the lack of resources. What worries me is the inclusion of the words “any other animal” in a definition like this. I suspect that some people, who already lack resources, will go further than that. Not just defence lawyers, but crown prosecutors will also have to call expert witnesses to show in each case, whether it is fish, earthworms or what have you... That in itself will require more resources.

My fear is that we will not achieve the main goal of this bill, which is to increase penalties for people who are truly cruel to animals, to all vertebrates other than human beings. That is my fear. You are going to provide for so many possibilities that there will be an even greater lack of resources. That will run counter to the purpose of this legislation. That is why the Bloc Québécois recommends that the last part be deleted and the definition read: “means a vertebrate, other than a human being.”

• 1055

The Chair: Mr. Paradis.

Mr. Denis Paradis: Mr. Chairman, I am trying to follow. What we have before us says: “means a vertebrate, other than a human being” in proposed section 182.1. I am having trouble understanding the proposed amendment: “means a vertebrate, other than a human being”. Can anyone explain it to me?

Mr. Robert Lanctôt: We are adding a period. We are removing the last part of the definition: “and any other animal that has the capacity to feel pain”. We are striking that part out.

Mr. Denis Paradis: Thank you, Mr. Chair.

[English]

The Chair: I'm going to call the question on CA-4 and what would have been BQ-2. I think it's clear.

(Amendment negatived—[See Minutes of Proceedings])

The Chair: Now I will go to BQ-3.

[Translation]

Mr. Robert Lanctôt: Thank you, Mr. Chairman.

As you know, most of the witnesses we heard, except those who really want to keep animal rights and cruelty to animals—we are talking about farmers, hunters, scientists, etc.—supported moving these provisions from part XI to part V.I. We in the Bloc agreed that such a distinction should be drawn. However, we wanted to reassure and respect the opinions of all those groups of witnesses.

When we asked Minister McLellan, she told us that under section 8 of the Criminal Code, these people retained all of the defences potentially available to them. That is not true, because in part XI, there are additional defences under section 429 of the Criminal Code. That section refers to justification, lawful excuse and colour of right.

In her evidence, the minister told us she did not want to take away any defences from those groups. Yet in moving these provisions to part V.I., you take away defences that are not in section 8 of the Criminal Code but are common law defences.

I would like some clarification, and that is what this amendment does. It would avoid frivolous charges because the defences previously provided for under section 429 would be available. True, they are being moved to a new part. The following would have to be added at line 7 on page 3:

In her evidence, the deputy minister drew this distinction. She told us that if the amendment I was asking for in questioning were made, that would make certain defences available. You have drawn this distinction, and I thank you for that.

True, it is an additional defence, but those defences were already available to these people. Hunters, scientists and farmers already had those defences available. Why take them away, when we can continue in the same fashion and achieve the desired result? There are stiffer penalties. Moreover, the scope of the legislation is already defined by the definition, which explains very broad concepts.

I think we could thereby reassure a large part of the population, especially farmers. I won't give you the whole list, because I think you know full well who we wish to protect.

[English]

The Chair: Mr. Owen.

• 1100

Mr. Stephen Owen: I'd just say, Mr. Chair, that government amendment 3 attempts to deal with this same issue. That's forthcoming, and it adds for greater certainty that subsection 8(3) of the Criminal Code applies in respect of proceedings for an offence under this part. What that does is import all the common law offences subsection 8(3) incorporates by reference. It makes it clear that those common law offences are all applicable under this part according to the terms used in subsection 8(3):

This includes concepts such as colour of right, mistake of fact, acting with lawful excuse, and legal justification. It attempts to deal with the concern that's been raised by many witnesses in a definitive way.

The Chair: Mr. Toews.

Mr. Vic Toews: I think this is a very disingenuous argument. Subsection 8(3) already applies to the entire Criminal Code. There is no lack of clarity in that respect. For the government to suggest that they're going to make an amendment to make sure that 8(3) applies to the entire Criminal Code, well, a first-year law student can figure that out, so I'm surprised that the member would come before this committee and make that kind of an assertion.

What in fact the member from the Bloc is stating is that section 429 deal specifically with part XI. It's very specific to part XI. It does not apply to the entire Criminal Code. Witnesses have come before us—Ms. McVie, for example—and stated that 429 is implicit in the movement of the offences from part XI to the new part. She said it was implicit but that she would have no objection to making it explicit. What this amendment is doing is making explicit that the defence presently within the confines of part XI is extended to the other parts. To suggest that subsection 8(3), which already applies to the entire Criminal Code, will be clarified through G-3 is simply less than being frank with this committee.

Mr. Stephen Owen: Excuse me, Mr. Toews, but the first-year law student you're speaking of would not have had—if you're suggesting this—the concerns that were expressed to us, because the common law defences would remain available even if they're not applicable to these types of offences. This clarifies that those defences are available if there's any doubt.

Mr. Vic Toews: Mr. Owen, what is the purpose then of section 429 in the present Criminal Code vis-à-vis the animal cruelty sections?

Mr. Stephen Owen: It's to speak to the concern that was expressed to the effect that defences that might have been available previously might not be available now.

Mr. Vic Toews: You've missed the question. What is the purpose of section 429 in part XI today to the animal cruelty sections?

Ms. Karen Markham: I think an argument can be made that section 429, which originated with part XI, spoke actually to the lawful justification excuse and particularly to colour of right, the latter being related to contests of property interests, etc., in offences that were within that part. I would suggest that section 429 in particular—and it gets complicated because there are two notions of colour of right, the notion that relates to contests about property interests, that is, who owns what and who is acting because they think they own what—does not apply currently as a practical matter to the cruelty provisions.

• 1105

So it may well be, I would suggest to you, that the defences that would apply in section 429 of the Criminal Code that are applicable to the cruelty to animals provisions, which I was trying to clarify on Tuesday, would be available through subsection 8(3) and that 429(2) in the context of cruelty to animals does not make available defences that are not also available pursuant to subsection 8(3).

Mr. Vic Toews: A final question then.

The Chair: Final question, and then to Mr. Lanctôt.

Mr. Vic Toews: In fact Mr. Lanctôt's amendment is making very clear that the defences in section 429 will now apply in the new section, whatever they may be in respect of animals.

Ms. Karen Markham: If I understand, it is to be in the chapeau of the offence. Is that correct, Mr. Lanctôt? It is in the chapeau of the offence. I would suggest that the amendment actually produces a substantive change.

[Translation]

Mr. Robert Lanctôt: It is part of the introduction to the whole section. I appreciate the comments of my colleague Mr. Toews.

Once again, you are telling us that this would apply to clause 8, which has to do with the defences of colour of right or lawful justification. I do not agree. You said the opposite last time. If it is so implicit, why not make it explicit by including it in the heading so that there is a guarantee. You are trying to convince me now that these common law defences, colour of right and lawful justification, will be implicit. Why not say so explicitly?

These people, these farmers, these hunters and these scientists would like to know that in this legislation, their defences, the defences that have always been available to them, are clearly protected. These defences are in addition to clause 8. It is false to say that they are included in clause 8. If that were so, legislators would never have included these defences in section 429 as they always have. If it can be put in the heading, that will protect what you say you want to protect. If it is really true that you want to do that, I think you have to make it clearer. That would reassure a number of people and groups.

[English]

The Chair: Just a final response, Mr. Owen.

Mr. Stephen Owen: One of the difficulties there is you've created a new offence and new approaches to offences in this section on viciously causing pain to animals. For instance, colour of right in terms of property ownership is no excuse to viciously harming and hurting an animal. I suggest that there may be more confusion by putting it in explicitly than leaving it out, yet referencing the common law defences that are available, which will be available through subsection 8(3) in the appropriate circumstances.

Remember we're creating potentially indictable offences here for viciously causing pain to animals. That is not a colour of right issue, and we wouldn't want any confusion about that.

The Chair: Mr. Fitzpatrick, Mr. McKay, and Mr. Lanctôt.

Mr. Brian Fitzpatrick (Prince Albert, Canadian Alliance): I'd like to go to specific situations. I'll go back to the situation that I explained to this committee before—the manner that aboriginal people use in northern Saskatchewan to kill a walleye or a northern pike. If I have a fishing licence and I use the same method, which is to take the head and break the neck of the fish, now I would say a defence I would have, because it's wilful, is that I have legal justification—I have a fishing licence. I would also say I have a legal excuse—I have a fishing licence. If somebody made a mistake in issuing the fishing licence, I would think I have a colour of right.

I'm really having trouble following your reasoning on this matter, Mr. Owen. It seems to me we're making explicit all the things that you have assured and the minister has assured this committee of throughout. We're just making it clear. And I'd like to know that when I'm fishing and I do something like this, I'm doing it under legal justification, colour of right, and excuse. I think all the people who have concerns about this legislation wanted to make sure these things were clear in the legislation as well. For the life of me, I can't see what the problem is with this amendment.

• 1110

Mr. Stephen Owen: First of all, can you explain to me why an explicit reference to subsection 8(3) doesn't meet all of your concerns?

Mr. Brian Fitzpatrick: I just wonder why under part XI there are these specific defences laid out. Parliament, in making those amendments, must have had some particular reason for it, and there's all sorts of case law dealing with these matters under the property section. People who came to this committee were concerned that by moving it out of the property section you were diminishing the defences that they normally would have in a court of law.

This amendment, it seems to me, clearly addresses that concern in black and white—removes all those doubts—and I think we're really counting the number of angels dancing at the end of a pin with your arguments. I don't really follow them, and I clearly understand what my Bloc member is doing with these points.

The Chair: Perhaps you could hold comment. I think we're all on the same thing.

Mr. Peter MacKay.

Mr. Peter MacKay: I have a question with respect to this section and the incorporation of the government's amendment. It really does boil down to explicit versus implicit.

Mr. Owen, I believe I just heard you say, through the chair, that a judge would be required to read in this section in conjunction with an alleged act involving a vicious act of cruelty. But my reading of this section is “who, wilfully or recklessly, or without legal justification, excuse, or colour of right”. A judge doesn't have to read in that entire section, of course. So where is the harm to make it explicit? It's there now. It has been used in that section.

I can't speak for the other members of this committee, but I want to support this legislation. But I also want to ensure that people are going to be protected to continue the lawful practices they have with respect to animals. Where is the harm in putting that section in, explicitly, if it gives comfort, even if it's never used? If it's there and it gives comfort to those individuals who feel they're losing something by separating this subsection 8(3) in what for years has been commonly associated with this property section, where is the harm?

Mr. Stephen Owen: I'll just give you an example of a colour of right defence that for inanimate property might be confused through these words with someone who owned an animate object, an animal. You have a chair—we've heard the witness give this example—you own it, and you take an axe to it slowly. That's colour of right ownership.

Mr. Peter MacKay: That's a ridiculous example. Look, are you saying a judge doesn't know the difference between a—

The Chair: Mr. MacKay, let Mr. Owen complete his thought.

Mr. Stephen Owen: One element of colour of right is, because of ownership, giving a person the idea that they have complete control over it. One of the examples we heard was between animate and inanimate and how you might have some confusion. This is a matter of simply making it clear without any potential for confusion that all of the common law defences are available. So let me put the question to you: where do you see the vulnerability in that?

Mr. Peter MacKay: Don't insult our intelligence. You're telling me a judge isn't going to see the difference between a chair and a dog? Let's deal with the realm of reality. Let's deal with facts—

The Chair: Order. Members, we're engaged in an important piece of business here, and I would like all members to be paying attention to the discussion that's going on.

Mr. Owen.

I go to Mr. Lanctôt, if Mr. MacKay is finished.

Mr. Lanctôt.

[Translation]

Mr. Robert Lanctôt: I would just like to add something. It is true that what we are now discussing is very important.

I want to give you another example. Take the case of researchers who follow standards, not laws, standards and provincial legislation that enable these people to do research, standards that are not prescribed by regulation. People know that these are standards. People are supposed to adhere to such things. People may follow one set of standards in Quebec, and another set in British Columbia.

• 1115

The defences of lawful justification or excuse are being taken away. Suppose I follow the legislation and standards applicable to agriculture or any other field, in a given place. If you take away these defences, lawful excuses and justifications, that will cause problems for people. Your definition is very broad and you are definitely taking away some... Just try to convince me that you are not taking defences away from those people. Just try to persuade me and the people around this table that you are not taking any defences away. Section 429 is taken away from part XI, and you are creating a new part V.I. In part V.I., those defences are no longer to be found. You say they belong with property. True, section 429 belongs with that. It is an addition. It is a new defence that... Why not leave people the options they already have? I could give you tons of examples. They came before the committee to provide examples. All those people and groups came before the committee to explain these things. Just try to convince me that you are not taking away any defences. Go ahead and say it, say that you are not taking away any defences.

[English]

The Chair: Mr. Owen.

Mr. Stephen Owen: Nothing is being taken away in terms of the defences that are available. We've heard descriptions of the inapplicability of something like a colour of right to a vicious treatment of an animal whether it's owned or not owned. The issue of ownership doesn't come up. So there's that confusion.

I've relayed—and it's not to insult anyone's intelligence—evidence we've heard in an example between inanimate and animate ownership and how there could be confusion. This amendment proposed by the government simply ensures and clarifies that the common law defences are available.

So the answer, sir, is no, nothing has been taken away.

The Chair: Okay, I'm going to go to the question. Remember we're now dealing with BQ-3. The government amendment we've been referring to in response to BQ-3 is coming later.

(Amendment negatived)

The Chair: I go now to BQ-4.

Mr. Lanctôt.

[Translation]

Mr. Robert Lanctôt: No explanation necessary. It was just a matter of removing “without lawful excuse”. I am going to withdraw this part. Since the other amendment was rejected, there is no point.

[English]

The Chair: Okay, BQ-5 is withdrawn. There's a new BQ-6. Has it been circulated?

For purposes of clarification, there was an original BQ-6, which is withdrawn and is being replaced by a new BQ-6, which is being circulated right now.

[Translation]

Mr. Robert Lanctôt: This amendment proposes to replace subclause 182.2(1) of the bill, which begins as follows:

The idea is to remove paragraphs (e), (f), (g) and (h) and to make this amendment. It is more or less along the same lines, Mr. Chairman. I would make the same arguments. Perhaps someone would like to add something, but as far as I am concerned, the same goes for this amendment.

[English]

The Chair: I want to call the question. I see no discussion.

Mr. Toews.

Mr. Vic Toews: Just in respect of paragraph (1.1)(c), what's the purpose of that?

[Translation]

Mr. Robert Lanctôt: Pardon?

[English]

Mr. Vic Toews: I don't quite understand that. Would this make controlled hunting practices illegal, for example, if—

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Mr. Robert Lanctôt: No.

[Translation]

With my amendment to this paragraph (c), I wanted to allow sport hunting, la roue du roi, hunting with hounds and all these things. I was adding an exception so that those people could continue to engage in hunting with hounds and la roue du roi.

I will give you an example. La roue du roi involves releasing a pheasant, and the hunters kill the pheasant. The way it is currently drafted, those who engage in hunting with hounds, la roue du roi and a number of other activities—it says “such as”—will have big problems.

[English]

The Chair: Understood. Is there any response?

Ms. Karen Markham: We don't have the amendment.

The Chair: Monsieur Lanctôt.

[Translation]

Mr. Robert Lanctôt: As you can see, the amendment states “such as hunting”. It is really not restrictive. The idea is to allow this type of sports activities.

[English]

The Chair: Take your time in terms of a response. This has just been introduced.

Mr. Vic Toews: Mr. Chair.

The Chair: Mr. Toews.

Mr. Vic Toews: With respect to this amendment, would it ban rodeos?

The Chair: Mr. Lanctôt.

[Translation]

Mr. Robert Lanctôt: The amendment will make it possible to protect activities of this type.

[English]

Mr. Vic Toews: It's to protect it, not ban it.

Mr. Stephen Owen: Mr. Chair, the provision in Bill C-15B does not make exceptions. It talks about captive birds “liberated by hand, trap, contrivance or any other means for the purpose of being shot”. I gather this amendment would create exceptions to the general rule. This is a policy issue.

The Chair: Mr. MacKay, and then Monsieur Paradis.

Mr. Peter MacKay: I want to be clear on this. I'm talking about the amendment Mr. Lanctôt seeks to amend.

Under this legislation, for example, releasing birds in a competition for the purpose of the birds being shot will now become an illegal practice.

Mr. Stephen Owen: It would certainly be an illegal practice under Bill C-15B.

Mr. Peter MacKay: Yes.

Mr. Stephen Owen: Is that right? Yes. It's my understanding of it.

The Chair: Ms. Markham.

Ms. Karen Markham: Thank you. Very briefly, the release of captive birds for the purpose of being shot is an offence now under paragraph 446(1)(f). The provision in Bill C-15B expands the category of animals to all animals, as opposed to captive birds only.

Mr. Peter MacKay: It is captive birds only. Is releasing wild birds okay?

Ms. Karen Markham: I'm talking about paragraph 446(1)(f) in the current code, not in Bill C-15B. I believe you mentioned it has not been an offence thus far, if I understood you correctly.

Mr. Peter MacKay: I know what happens. I've seen competitions where birds are released. Dogs, such as springer spaniels, flush the birds out and they're shot. It's currently done in this country.

The Chair: Ms. Markham.

Mr. Karen Markham: I'll make no comment other than to direct the committee's attention to the current provisions of paragraph 446(1)(f) in the code.

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The Chair: Mr. Lanctôt.

[Translation]

Mr. Robert Lanctôt: As I see it, you cannot say the opposite. In the bill, it is not in paragraph (f), but rather in paragraph (g) where it is stated: “captive animals are liberated.” We can see that they are really in the problem. Having engaged in this activity myself, I can tell you that it is very pleasant. Under this provision, I will no longer be able to engage in the sport activity known as roue du roi.

I repeat, the intention is to permit... It is true that this is an exception, but there are a number of exceptions, because there a number of activities. In the case of hunting with hounds, the same is true. The owner of the animal goes to get the animal. I do not want to list all the activities, but there are a number of them.

[English]

The Chair: I think we've heard the amendment. I'm going to go to the question.

Monsieur Paradis.

[Translation]

Mr. Denis Paradis: There are organizations in Quebec, one of which is called the Montreal Hunt, which engages in hunting with hounds. Does this mean that tomorrow morning the Montreal Hunt will no longer be able to engage in its activities?

[English]

Ms. Karen Markham: Is this question directed at me?

The Chair: Ms. Markham.

Ms. Karen Markham: I'm not familiar with the Montreal Hunt. I don't know what activity is involved.

[Translation]

Mr. Denis Paradis: They hunt with hounds. The hunters are on horseback and a fox is released. Hounds chase the fox, and the hunters control the hounds. I don't know if there are such hunts in other provinces, but they are held quite frequently. They are always preceded by a mass, there is a big party, etc. It is a hunt with hounds. The hounds chase a fox after it is released.

I want to know whether this means that the activities of the Montreal Hunt will become illegal.

[English]

The Chair: Ms. Markham.

Ms. Karen Markham: The provisions of paragraph 446(1)(f) in the current law indicate that it talks about any competition, etc.:

The activities that are lawful today will continue to be so. In paragraph 446(1)(f), the provision speaks to birds that are captive, then shot at the moment they're liberated.

I don't think I should comment specifically on the Montreal Hunt. I think it's difficult.

[Translation]

Mr. Denis Paradis: Mr. Chairman, this is not about birds. Let me explain what hunting with hounds is. I imagine this is done in other provinces as well. This is a very old sport. A fox is released, and the hounds chase after the fox and the riders control the dogs. The ultimate objective is to capture the fox. Will this activity of the Montreal Hunt become unlawful tomorrow morning under this bill?

[English]

The Chair: Mr. Owen.

Mr. Stephen Owen: Ms. Markham, I think the evidence is that there is a provision in the code now that deals with birds. Presumably if it's lawful now, it's going to continue to be lawful. The provisions of the bill simply expand from birds to animals.

In terms of the practice now with respect to birds, which is perhaps where this is most common, it would now apply to other animals as well.

Mr. Denis Paradis: It could mean the activities of the Montreal Hunt become illegal tomorrow.

Mr. Stephen Owen: No.

Mr. Denis Paradis: No?

Mr. Stephen Owen: It would not if it were legal yesterday or today.

[Translation]

Mr. Robert Lanctôt: The justification and colour of right would have been important in this regard.

[English]

The Chair: I'm going to put the question on BQ-6.

(Amendment negatived)

The Chair: I now go to amendment BQ-7, which is in the original package everyone has.

[Translation]

Mr. Robert Lanctôt: I will withdraw the amendment. Since other amendments have been rejected, I will withdraw BQ-7.

[English]

The Chair: Is it amendment BQ-8?

Mr. Robert Lanctôt: No, it is amendment BQ-7.

The Chair: No.

I'm withdrawing amendment BQ-7.

[Translation]

Mr. Robert Lanctôt: Thank you.

• 1130

[English]

The Chair: I go now to amendment G-1.

Mr. Stephen Owen: Mr. Chair, the amendment in part (a) increases the maximum fine available for summary conviction offences, the intentional cruelty offences, from more than $2,000 to more than $10,000. In part (b) it increases the maximum fine available for summary conviction offences committed, under the criminal neglect section, from more than $2,000 to not more than $5,000.

The amendment will give the crown greater flexibility in deciding whether to elect to proceed by indictment or summary conviction. The higher maximum fines will also signal Parliament's intention that animal cruelty offences can involve serious acts of violence and should be treated as serious offences.

The Chair: Mr. Toews.

Mr. Vic Toews: Are you aware of any convictions where the maximum under the existing law has ever been imposed?

Mr. John Finlay: I'm not personally aware of that case law.

Mr. Stephen Owen: No.

Mr. Vic Toews: I don't have any objection to raising the limits, but it seems to me the problem isn't with the limits if judges have never imposed the existing limits. Why is it seen as necessary to increase penalties if judges aren't utilizing the existing maximum penalties?

Mr. Stephen Owen: I think the whole policy thrust of these amendments to the Criminal Code is to signal the seriousness with which Parliament takes these types of offences. There are new offences created, and they're hybrid offences that can be proceeded with by indictment.

It's a signal to the public, in answer to the public's concern, that these are not being treated seriously enough. I would hope that prosecutors, deciding how to proceed, and judges, upon conviction, would take that signal very clearly.

The Chair: Mr. Toews.

Mr. Vic Toews: If the government is serious about ensuring that causing wilful pain to animals is taken seriously, why haven't they considered imposing minimum sentences in those kinds of flagrant abuse cases?

Mr. Stephen Owen: This is a much broader discussion on minimum penalties than in just the animal cruelty section. It's a wide area of discussion. It's been felt by government and has been the practice in the Criminal Code to stay away from minimum sentences. So I don't think we'd be changing that policy for this section in particular.

Mr. Vic Toews: In effect, Mr. Owen, doesn't the government regularly increase the maximum penalties, knowing that the judges aren't going to impose them anyway, so they can say to their electorate, “Look how tough we are on this”? You know yourself that judges will never impose these maximums anyway, and we're going through a charade here.

Mr. Stephen Owen: In fact, Mr. Toews, I don't know that, for the record.

(Amendment agreed to—[See Minutes of Proceedings])

The Chair: Now I go to amendment BQ-8.

[Translation]

Mr. Robert Lanctôt: Thank you, Mr. Chairman.

Once again, I would like to add the following words to this provision: “without legal justification, excuse, or colour of right.”. Something else as well. I saw how a similar amendment was rejected earlier. Of course, I am presenting it in this way, but proposed subparagraph 182.3(1)(b) does not include the word “negligently.” It states:

• 1135

Clearly, I am making the same representations I made earlier to add the words “without legal justification, excuse or colour of right” and to add the word “negligently” at the beginning of the paragraph. I would like the word “negligently” to be included in the initial sentences, and the later amendments will remove the word “negligently” in paragraphs (a) and (c). The idea is simply to have the word “negligently” apply to the entire provision. I would repeat in this regard the same comments I made earlier.

[English]

The Chair: We've heard them.

(Amendment negatived)

The Chair: Amendment B-9 is withdrawn

Amendment G-2.

Mr. Stephen Owen: This speaks to a number of concerns that were raised. It clarifies the mens rea on two alternate modes of committing the offence under proposed paragraph 182.3(1)(b). The phrase “wilfully or recklessly” will qualify the offence of abandoning and clarify that the subjective mens rea is intended.

The addition of the word “negligently” before the words “fails to provide suitable” will expressly indicate the mental element of criminal negligence for this offence.

This test of the mental element of criminal negligence is set out in proposed subsection 182.3(2) and reflects the wording of relevant case law.

The Chair: Mr. Fitzpatrick.

Mr. Brian Fitzpatrick: With the amendment, “negligently fails to provide” in proposed paragraph 182.3(b), do you have an amendment in here that also deals with proposed subsection 182.3(2), which defines negligently? It omits proposed paragraph 182.3(1)(b), the standard of the reasonable man—or person, I guess. I apologize for using “man”.

Mr. Stephen Owen: Yes. Thank you, Mr. Fitzpatrick. There would be a consequential amendment there to refer to (a), (b), and (c).

The Chair: Mr. Toews.

Mr. Vic Toews: I was just wondering how this definition compares with the definition of criminal negligence in the context of motor vehicle definitions. Is there any difference?

The Chair: Ms. Markham.

Ms. Karen Markham: Thank you. The definition in proposed subsection 182.3(2) reflects the definition of negligence that has been set out in a long line of cases, the latest one being the Creighton case, which I believe was a manslaughter case. It doesn't deal specifically with the motor vehicle concept, but certainly the marked departure language is the language case law has fairly consistently developed.

Mr. Vic Toews: If we go to section 220 of the Criminal Code, it says:

Here we obviously have a lower standard of negligence incorporated in the definition. So this isn't the regular criminal negligence standard; it's something much less, in terms of the mens rea.

Ms. Karen Markham: The reference to criminal negligence and then defining negligence as a marked departure from a standard of care are synonymous because the definition in proposed subsection 182.3(2) defines what criminal negligence is, in accordance with the case law.

The Chair: Mr. Fitzpatrick.

Mr. Vic Toews: No, just—

The Chair: I'll come back to you, Mr. Toews, if this doesn't answer it.

Mr. Brian Fitzpatrick: I find this concept interesting because it seems to me we're pulling something out of civil litigation—the concept of tort and negligence. When you're dealing with the concept of negligence in civil court, you're always looking at the standard of care that should have been expected.

In Europe there's the hog production thing with the density, the number of piglets you can have in an area, and your facilities. Everything from start to finish in that process, from what I can understand, was challenged by the law in Europe. It had a significant impact on that industry. It basically made it uncompetitive.

• 1140

I really feel what we have here is open season on all the standard processes we have in the livestock industry—the hog industry and others—where people will be able to start challenging existing standards and processes, saying they don't meet the test of a reasonable person. We're going to have a whole bunch of test cases.

I find there's something offensive about bringing civil tort law into the ambit of criminal law. It seems to me we're introducing something quite radical with criminal law here. It doesn't really deal with mens rea or your state of mind. You're using an objective standard, the standard of a reasonable man.

It seems to me the whole industry could be seriously attacked with this concept, and there would be no end of challenges to any process you can name. Mr. Hilstrom pointed out some of those the other day in committee. I'm concerned about this whole notion. It's radical.

Mr. Stephen Owen: I'd only suggest, Mr. Fitzpatrick, that far from being radical, it clarifies the definition with direct reference to what is the criminal standard of negligence in criminal law, which is departing markedly from the standard of care that a reasonable person would use—departing markedly. That in fact addresses the concern that has been made to us by members of the agriculture industry and medical science and such, that they might be prosecuted for things they now do within the standards of whatever their industry or activity is.

This makes it clear. It speaks to the concern that was raised. It's not importing anything from the civil law if what we're talking about here is linking it directly to the criminal case law definition of “negligence”, which is marked departure.

The Chair: Thank you very much.

I promised Mr. Toews I would come back.

Mr. Vic Toews: I think this is a very important issue. As I understand it, criminal negligence is defined in the Criminal Code at section 219. We are now putting into place a new definition of negligence that is not criminal negligence. This is clearly different from what we're talking about in section 219.

Subsection 219(1) says:

I'm not following your argument. Are you saying that this amendment, where it says “negligently”, is the same as criminal negligence in the definition in section 219?

Mr. Stephen Owen: I'm saying that this is a definition for the subjective mens rea, which is established by case law. This makes it explicit.

Mr. Vic Toews: I'm sorry. I'm talking about the definition of criminal negligence not set out by the case law, but set out in statute here. It has a very specific definition right here in the code, section 219. The negligence you've indicated here is somehow a lower standard than criminal negligence.

Mr. Stephen Owen: What this makes clear is that the standard is above the civil standard of negligence that Mr. Fitzpatrick mentions, and it talks of marked departure, which is the very concern that has been raised to us. This speaks to that concern. We're not talking about normal practices, whether they're guided by regulations, codes, generally accepted business practices, or scientific protocols. We're talking about marked departure from that standard of care.

Mr. Vic Toews: So we're importing a definition of negligence that falls somewhere between civil negligence and criminal negligence.

The Chair: Ms. Markham.

Ms. Karen Markham: I'd like to quote McLachlin, who wrote for the majority in the Creighton case. She said:

• 1145

She cites R. vs. City of Sault Ste. Marie for that proposition, and the Sansregret case.

She goes on to say:

Mr. Vic Toews: All right. So you're saying that the definition of negligently that you put into the code here, you're proposing, is not the same standard of criminal negligence as set out in section 219.

Ms. Karen Markham: It doesn't have the same elements. It's a reflection of the common law standard for negligence.

Mr. Vic Toews: And where is “negligently” defined in the Criminal Code, the word you're using here? Not criminal negligence; we know that's defined in the code. You're importing a new standard that is common law?

Ms. Karen Markham: Yes, it's basically a codification of the common law standard. We set that standard out in proposed subsection 182.3(2).

The Chair: Mr. Fitzpatrick.

Mr. Brian Fitzpatrick: I have one question for clarification. In regard to the definition under proposed subsection 182.3(2), the “reasonable person”, I'd like to have some clarification of intent on that.

Let's say we were dealing with a hog producer. In establishing the standard, would we be using the standard of a reasonable hog producer, where you have “reasonable person”? If we were talking about a livestock producer, would we be looking at the standard of a reasonable livestock producer, or would we be talking about taking the fellow in the second-last row of the bus, hauling him into court, and using that person as the standard on that?

I'm just curious.

Mr. Stephen Owen: I'm not sure if I can answer that specifically.

Mr. Brian Fitzpatrick: The lawyers will have a lot of fun with that in court if you can't answer it here.

Mr. Stephen Owen: The criminal case law does give context to behaviour, and I would suggest in your example the context would be normal agricultural practices with respect to hogs.

The Chair: Thank you very much.

Mr. Blaikie.

Mr. Bill Blaikie: Does this not go even further in terms of narrowing the offence than what the minister indicated last week by adding “wilfully” and “recklessly”? Was this telegraphed before, that this was the language that was going to be used?

Mr. Stephen Owen: I don't think she spoke to exact language. She certainly spoke to the intent, which is reflected here.

The Chair: The chair needs a little clarification. There was a reference before to the application of this to 182.3(1)(a), (b), and (c). Do I take that as a friendly amendment?

Mr. Stephen Owen: That's the way it was intended, yes.

The Chair: That's the way it was intended.

Just for purposes of the record, the amendment that is put forward as G-2 would apply also to proposed paragraphs 182.3(1)(a), (b), and (c), and that is understood. Agreed?

Mr. Stephen Owen: Speaking, I suppose, of consequential amendments, albeit friendly.

(Amendment agreed to—[See Minutes of Proceedings])

The Chair: We go to amendment BQ-10.

[Translation]

Mr. Robert Lanctôt: Withdrawn.

[English]

The Chair: We go to amendment BQ-11.

[Translation]

Mr. Robert Lanctôt: Withdrawn.

• 1150

[English]

The Chair: Before we proceed to government amendment number 3, I would like consent of the committee to go back to government amendment number 2 to get the wording right on what we've just dealt with. One moment, please.

Members of the committee, I am advised procedurally I will need an amendment to government amendment number 2 to reflect the will expressed by the government when questioned by Mr. Lanctôt. I need language for the record—for this purpose—on that. I would direct everyone to proposed subsection 182.3(2) in clause 8—correct?

Mr. Stephen Owen: Yes, it's proposed subsection 182.3(2). May I make that...?

The Chair: Please do, Mr. Owen.

Mr. Stephen Owen: Thank you. The amendment would be that proposed subsection 182.3(2) in clause 8 be amended to add a reference to proposed paragraph 182.3(1)(b) to the current language, which reads “paragraphs (1)(a) and (c)”. It would now read “paragraphs (1)(a), (b), and (c)”.

The Chair: Alternatively, Mr. Owen, you could simply eliminate reference to paragraphs (a), (b), and (c) and just leave it as “subsection 182.3(1)”.

Mr. Stephen Owen: That would strike me as being particularly elegant, Mr. Chair.

The Chair: I take no responsibility for its elegance, and I appreciate the committee's patience as we go back to government....

First we have a vote on the subamendment, as elegantly put.

(Subamendment agreed to)

(Amendment agreed to—See Minutes of Proceedings)

The Chair: That covers us off on G-2. We now go to government amendment number 3.

Mr. Stephen Owen: Mr. Chair, this amendment is the one we have spoken to previously. It states:

I think we've been through that.

The Chair: Mr. Toews.

Mr. Vic Toews: You say “for greater certainty”. Where is there any uncertainty that subsection 8(3) would not apply to these sections? Where in the law, where in the witnesses, where in anything, has there ever been any suggestion that it would not apply to these provisions?

Mr. Stephen Owen: I certainly thought I heard throughout much of these proceedings, from numerous witnesses, concern expressed that existing defences might not apply to this new act. With this “for greater certainty”, if they were certain before, they'll be more certain now by express reference. That's the point of it.

The Chair: Thank you.

Mr. Vic Toews: I want it clear on the record that the government's position and the interpretation of this legislation is that this amendment will ensure the defences set out under section 429 are now also included in subsection 8(3) and that anyone charged with an offence under these new sections will be entitled to rely on the provisions in section 429. That was what people were uncertain about. They weren't uncertain about subsection 8(3), and to suggest anyone was uncertain about subsection 8(3) is simply not reflective of the evidence given by anyone.

• 1155

Mr. Stephen Owen: Mr. Toews, what concerned people was the change in language from the current part to the suggested part, and the government's intention by referring directly to subsection 8(3) is to make it clear to anyone who is uncertain, or make it more certain for anybody who is just certain, that the common law defences apply. It's as simple as that.

Mr. Vic Toews: Are you saying, then, that the defences set out in section 429 will now apply as a result of making this certain by proposed section 182.5?

Mr. Stephen Owen: If they're relevant, they would apply.

Mr. Vic Toews: Will it in fact do what Mr. Lanctôt has suggested we do with his amendments—the amendments that were defeated by the Liberal majority here on this committee?

Mr. Stephen Owen: The legal evidence we heard from the Canadian Bar Association and the Criminal Lawyers Association was, yes, those defences do still exist at common law—if they're relevant.

Mr. Vic Toews: So are you saying it is the government's position that an accused may advance the same defences set out in section 429 in respect of an offence under these new provisions?

Mr. Stephen Owen: That is the intention of the government, that those defences are available, so far as they are relevant.

The Chair: Thank you. Mr. Myers.

Mr. Lynn Myers: Mr. Chairman, this has been an important point based on testimony, and based on people who have contacted me, when it comes to trapping and fishing, or when it comes to medical research and farming. I'm content to know—and I've heard it again stated by you, Mr. Owen, and certainly by the minister the other day—that any existing codes of practice, any existing standards of care, any existing bona fide farming, or medical research, or trapping, or fishing practices that are present today and in fact are defensible today are carried forward. Is that correct?

Mr. Stephen Owen: That is correct. That is the intention of the government.

Mr. Lynn Myers: Thank you very much.

The Chair: Thank you very much. I put the question on government amendment number 3.

(Amendment agreed to)

The Chair: I now turn to LG amendment number 1. I can only assume it refers to “Liberal Grose”. Has it been distributed? It's in the first package: LG-1.

Mr. Grose.

Mr. Ivan Grose (Oshawa, Lib.): Thank you, Mr. Chair. This does not take away anything from the bill; it doesn't delete anything; it doesn't change anything—it's an addition. It was put together by me with cooperation from my own police force—the Durham Regional Police—and the members of the Toronto city police, and the RCMP.

They're running into problems with their animals. They're increasingly using dogs. In Durham, we started with one and have five or six now. Our most famous dog has been injured many, many times. As a matter of fact, he should be retired, but he gets up every day and wants to go to work.

Mr. Lynn Myers: Just like you.

Some hon. members: Oh, oh!

Mr. Ivan Grose: Notice these are not my friends over here.

Mr. Vic Toews: We're with you on this one, Ivan.

Mr. Ivan Grose: Lately, an RCMP dog was shot four times. Amazingly, he lived, but of course his life career is over. These dogs cost up to $50,000 to train. That's why the last paragraph is in there. I've also seen, myself, in Toronto—where they use horses quite a bit for crowd control at demonstrations and semi-riots—people who came to demonstrations or semi-riots with equipment specifically to injure the horses, and in some cases they've succeeded.

The bad guys seem to feel, “It's only a dog or a horse, and not much will happen to me.” We wanted implanted in their minds that something will happen to them. These horses, and especially the dogs, are an integral part of the police force now, and they are very, very valuable. They corner a crook who might have otherwise gotten away, and some of the bad guys will abuse them. This is why I brought this forward, and I hope I can get support from everyone here, because it's one the police fully support. Thank you.

• 1200

The Chair: Could I first of all seek consent, Mr. Grose, to amend the reference to subsection 182.5? Because of an amendment that's just been made by the government, we would have to change that to 182.6.

Mr. Ivan Grose: Agreed.

Some hon. members: Agreed.

The Chair: That's really up to Mr. Grose but he appreciates everybody's support, I'm sure.

We have a couple of people wanting to speak. Mr. Toews and Mr. Cadman.

Mr. Vic Toews: I want to speak in support of this amendment. I think it's a very important amendment. Not only are these animals a valuable tool in respect of law enforcement, but in terms of solving crimes and preventing violence, these are animals that protect the lives of our peace officers. Therefore, it's much more than simply a general obstruction of peace officers. This is a crucial safety tool that officers rely on. I think a well-trained dog not only saves the lives of the officers but I think can be used appropriately.

I noted in the last demonstration in Ottawa they filmed a dog that went after a demonstrator. I don't know the reason the dog was going after the demonstrator, but I noted a relatively judicial use of that dog because the dog wasn't holding on very firmly. It let the demonstrator disperse back into the crowd.

So these dogs can be used in a very precise manner to accomplish certain very legitimate law enforcement aims. They not only protect peace officers but also contribute in solving crimes.

The Chair: Mr. Cadman.

Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chair.

I would also like to go on record as supporting this amendment. I'd like to put on record what I consider to be the driving force behind this. There was a bunch of students, a bunch of kids in Williams Lake, B.C., who started up a project a number of years ago called Project SHEP that led directly to this. There was a major letter-writing campaign, a petition sent into parliamentarians to do something about it. We certainly heard about it in the last Parliament. The students themselves didn't come but their RCMP representative came to see us. I'd just like to put it on the record to give some credit to those kids who started this whole thing a couple of years ago from Williams Lake, British Columbia.

The Chair: Thank you, Mr. Cadman.

Mr. Lanctôt.

[Translation]

Mr. Robert Lanctôt: I would like to ask Mr. Grose a question, Mr. Chairman. Of course we cannot oppose this amendment, but I am thinking there was no such protection, because why would we not add companion animals for handicapped individuals, and so on. We cannot stop. Why is it that this amendment adds something that is not already provided for in the bill? Otherwise, the list could become very long. Let me give you the example of seeing-eye dogs. How does this add something new?

[English]

The Chair: I'll allow.... Mr. Grose, can you wait? We have three or four others who need to come back on this proposal.

Mr. Myers.

Mr. Lynn Myers: Mr. Chair, I just want to congratulate Mr. Grose. I think he's done his homework. I think he's taken a look at a very important issue. I think he's presented a very important amendment here.

I have first-hand experience with police dogs, and I can tell you that this is something of great importance. I just want to congratulate—on the final leash side, Mr. Toews, not at the front end, just so it's clear.

Mr. Vic Toews: If you want to call me on this, it was a smile that I made in respect of a gesture from one of your colleagues.

Mr. Lynn Myers: Oh, I see. Thank you. I'll keep track of these guys here.

I want to congratulate Mr. Grose. I think it's very important and I think we should proceed with it.

The Chair: John McKay.

Mr. John McKay (Scarborough East, Lib.): Mr. Grose, in terms of subsection (3), the offences, “liable to imprisonment for a term of not more than two years; or (b) an offence punishable on summary conviction”, earlier in the day we amended section 182.1 with fines of $10,000 and imprisonments of not more than 18 months. It strikes me that we should be consistent with the offences that are attributable to ordinary animals as opposed to police animals. I wonder whether you would entertain a friendly motion along those lines.

• 1205

Mr. Ivan Grose: Absolutely. Of course. I wasn't aware of the other amendment, and we have to make this consistent, I agree.

The Chair: Okay, now we're back to the old amendment G-2 issue, but I'll bring that forward at the end of discussion before we vote.

Mr. Blaikie.

Mr. Bill Blaikie: Mr. Chairman, I'm very sensitive to the motive behind the amendment, and even supportive of it to a considerable degree, but I do have a couple of concerns.

I forget who mentioned the demonstrations in Ottawa a couple of weeks ago. Certainly, one of my concerns is not necessarily relevant to whether or not the amendment is defendable or not, but it is the increasing use of dogs against demonstrators.

While the picture that Mr. Toews saw of the dog gently handling a demonstrator may provide comfort to Mr. Toews, I'm sure there are others who may have a differing opinion on the experience they had on that day.

In particular, some people would feel they're being unjustly manoeuvred by police dogs in the course of a demonstration. They aren't committing any illegal act, but they are being summarily cleared from an area and they may find themselves in situations where they feel they're protecting themselves against an animal that's doing something that they feel is inappropriate.

That's the ambiguity I feel about it. Where it says “assaults, injures or causes the death”...assault is fairly clear, but if they're deliberately injuring or causing the death, it seems to me there may be circumstances in which people could accidentally or unintentionally in some other way, not deliberately, seek to injure or cause the death of a law enforcement animal.

And finally, Mr. Chairman, in terms of the penalties where it says, “must order the offender to pay all restitution costs, including the cost of training”, etc., to me that might be better written if it said “may”. You want to inject the notion of how valuable these animals are and how much it costs to train them. But to make a minimum sentence...that this has to be calculated and figured into the penalty. I also wonder whether or not that is the wisest course of action.

The Chair: Any response, Mr. Grose?

Mr. Ivan Grose: In response to Mr. Blaikie, I considered that. But getting back to something you brought up earlier, if judges start to ignore it, of course, it will just carry on and it will be ignored.

Mr. Bill Blaikie: We can always come back and amend it.

Mr. Ivan Grose: Well, you see, I want things done now.

The Chair: The exchange Mr. Grose just had brings to the committee's attention the need to speak to the chair, because Mr. Grose, while responding to Mr. Blaikie, referred to “you” in the second person, meaning Mr. Toews, but the record's going to show that he was responding to Mr. Blaikie. It's not going to make a great deal of difference. I thought it was an opportunity to educate the committee on the need to speak to the chair.

Mr. John McKay: There is some similarity between them.

The Chair: Having said that, the first thing I need to do is to get agreement on the committee on the language or put a vote on the subamendment on the fines that would now include consideration of the amendments made on the consequences earlier in the day.

First of all, Mr. Grose, do I take it that those amendments are acceptable to you?

Mr. Ivan Grose: Absolutely.

The Chair: So I need now to put it on the record what those amendments are.

Mr. Lynn Myers: Call the question.

The Chair: I need to call the question on something very specific, Mr. Myers.

Mr. Lynn Myers: Well, we know what that is. Mr. McKay articulated it eloquently.

The Chair: I'm told we need to have this specifically read into the record. Notwithstanding the fact that we may all know right now, I think in future, “the committee knew what they were talking about” won't suffice.

• 1210

Mr. Lynn Myers: What about “the chair knew what he was talking about”?

The Chair: That is what I'm going to protect, Mr. Myers.

So in Mr. Grose's amendment, proposed paragraph 182.5(3)(a) would be removed as it currently reads and be replaced by:

And proposed paragraph 182.5(3)(b) would be amended to read:

Mr. Lanctôt.

[Translation]

Mr. Robert Lanctôt: I did not get an answer to the question I asked Mr. Grose as to why we would not include seeing-eye dogs. I am very interested in issues relating to the handicapped. Why not take the time to add animals such as dogs used by handicapped people, for example?

[English]

The Chair: Let me establish that we agree to amend the legislation according to the sanctions.

(Amendment agreed to)

The Chair: On the question that Mr. Lanctôt put to Mr. Grose...and then I'll put the question.

Mr. Ivan Grose: The only answer to that is that I was after a specific group of animals. I hadn't thought of the other animals, a hearing aid dog, a seeing eye dog. Quite frankly, it would have to be put in a different context, because I feel the penalties would not be the same.

So it would have to be another amendment, but not to this one. I want this one to stay as it is because I want the bad guys literally to know that it's going to cost them.

The Chair: Mr. Blaikie and then Mr. McKay.

Mr. Bill Blaikie: Would this cover policemen who deliberately expose their dogs to tear gas?

The Chair: Does the government wish to respond? The chair doesn't.

Mr. McKay.

Mr. John McKay: It seems to me that the thrust of Mr. Grose's amendment here is a specific category of animal that is put at risk to protect the safety of Canadians. So there's a distinction to be made between a seeing eye dog or something or another that serves human beings. But this is a risk factor, I would say.

The Chair: Okay, I want to put the question on the amendment referred to as LG-1.

(Amendment agreed to—[See Minutes of Proceedings])

The Chair: I now go to amendment CA-5.

Mr. Toews.

Mr. Vic Toews: The amendment is simply along the same lines that Mr. Lanctôt has suggested, that no person be convicted of an offence where he or she proves that he or she acted with legal justification or excuse or with colour of right.

(Amendment negatived—[See Minutes of Proceedings])

[Translation]

The Vice-Chair (Mr. Denis Paradis): The next amendment is CA-6.

Mr. Toews.

• 1215

[English]

Mr. Vic Toews: This is a provision that is commonly used in many contexts where it is felt that the application of the law is not particularly clear or where there is a suggestion that it may be abused by one particular interest group or another. I'm suggesting that the amendment be that

This is a provision we find throughout the Criminal Code. For example, let's look at section 174, which is again another contentious kind of area. This one deals with nudity, and it says “Everyone who, without lawful excuse, (a) is nude in a public place”, etc. One can see exactly the kinds of concerns that can arise with respect to an offence charged under that section.

As a safeguard against frivolous private prosecutions, there's a subsection there, 174(3), that says, “No proceedings shall be commenced under this section without the consent of the Attorney General”. We see this over and over again in the Criminal Code. Where these contentious areas exist, the Attorney General in a particular province acts as a safeguard to ensure that it won't be abused.

What I heard today disturbs me very much, that is, the government suggesting that there will be a screening process in front of a judge. This is mixing the judicial function and the prosecutorial function. It's a very dangerous step to take. This mechanism has been a time-honoured, well-served tradition, where essentially the deputy attorney general in each province designates someone to look at these contentious types of prosecutions and give his or her consent.

It is a streamlined process, while the process suggested by the minister's parliamentary secretary is a very complex one and will be very expensive for people to be involved in whether they're there personally or not. I'm just wondering what the justification would be to change a mechanism that has worked so well over the last 150 years in terms of ensuring that frivolous prosecutions in contested areas are monitored by the provincial attorneys general.

It seems to me it would be a huge policy shift if we were to make the amendment suggested by the parliamentary secretary. Instead, I would ask that the process remain simple, clear, and within the discretion of the chief law officer of the province. It is his or her responsibility to make that determination. That's been the custom in our Criminal Code, it's been the statutory provision, and in fact this simply reflects that long tradition.

The Chair: Thank you very much.

Mr. Owen.

Mr. Stephen Owen: This identifies a specific category of offences the Attorney General would have to give direct approval for, if I understand the amendment—I don't have it in front of me. The provisions in Bill C-15A, which were discussed earlier this morning and which is now before the Senate, provide a situation that is not complex. Process is issued by a justice or possibly by a provincial court judge against certain minimum standards. It simply provides, in Bill C-15A, that where we're talking about an indictable offence, which includes a hybrid offence at this stage, the Attorney General should be given notice and there should be a specific screening process.

This speaks directly to the concerns we heard about frivolous and vexatious private prosecutions. In any event, it's not the crown that issues process, it's a justice, which could include a provincial court judge.

• 1220

The role of the prosecution, once process is issued, may well involve the Attorney General or that person's designate stepping in, taking over the case, and staying it. That power exists now. The government's position is that this issue, the fear of unwarranted private prosecutions, is dealt with by the amendments already put forward in Bill C-15A.

The Chair: Mr. Toews.

Mr. Vic Toews: Then with respect to provisions like subsection 174(3), is it the government's intention to leave these provisions in? Or will this type of consent requirement as found in subsection 174(3) be removed in favour of this process whereby an information is laid on specific standards, it then goes to a provincial judge or some other judicial figure, it then goes to a preliminary hearing, and it then goes to trial? Is that the process we're going to adopt now on all these matters?

Mr. Stephen Owen: There may be an election to go by summary conviction, in which case there would be no preliminary hearing.

I don't have the section you referenced in front of me, but certainly there are some provisions in the Criminal Code where an Attorney General must give specific approval. I'm thinking of things like direct indictments or dangerous offender applications, but that's not what we're talking about here. We're simply talking about an additional safeguard against vexatious and frivolous or otherwise unwarranted private prosecutions.

Mr. Vic Toews: I'm just wondering why the government has lost faith in the existing process, one that has always been in the Criminal Code, to have the Attorney General monitor these types of prosecutions to ensure that consent is given, in favour of the provision you're now suggesting.

Mr. Stephen Owen: That's a broader policy question than I can answer at this stage. I can only say there are limited sections of the code where that applies. You could make the argument, I suppose, to extend to all sorts of prosecutions. Most provinces have some kind of screening quality control process for public prosecutions that go ahead, and nothing stops them from continuing with that.

The Chair: I'm going to call the question. I think we have discussed this quite a bit, actually.

(Amendment negatived—[See Minutes of Proceedings])

(Clause 8 as amended agreed to on division)

The Chair: I will remind members that clauses 8.1 and 9.1 were moved earlier from Bill C-15A to Bill C-15B, with consent. That's why they're numbered the way they are.

(Clauses 8.1 to 16 inclusive agreed to on division)

(On clause 17)

The Chair: I'm going to government amendment 4.

Mr. Stephen Owen: I'm going to ask Mr. Webster to speak to the technical nature of this.

Mr. Gary Webster: The bill as it presently stands would allow for the transportation of prohibited rifles and shotguns arranged under an authorization to transport. The present act does not allow this, and these firearms can only be transported under a special authorization to possess issued under the regulations on an occasional basis. Owners of these prohibited firearms will be able to continue, though, to obtain a special authority to transport the firearm, which falls under the Chief Firearms Officer's responsibility.

(Amendment agreed to on division—[See Minutes of Proceedings])

(Clause 17 as amended agreed to)

• 1225

(Clauses 18 to 20 inclusive agreed to)

(On clause 21)

The Chair: For clause 21, I go to Bloc amendment 12.

[Translation]

Mr. Robert Lanctôt: Thank you, Mr. Chairman.

As you can see, the important point in this discussion is that when the chief firearms officer is required to verify certain things with respect to transferees and individuals, and in the case of the importation of non-prohibited firearms, he must nevertheless continue to do some fairly thorough checking. The amendment states—I do not know whether this is an omission, but I do not think so—the reference to the importation of a restricted firearm is removed. I think it is rather strange to remove such an important control in the case of even more dangerous firearms. I think this undermines the scope of the bill and of the Firearms Control Act. So I am asking that this phrase be reinserted, because it was there previously, in paragraph 21(2)(b). I also realize that I had asked the drafter to do the same thing in paragraph 21(2)(c), which reads: “decide whether to approve the transfer...”. There is also the reference to importation. So I would like to move a subamendment, if, of course, my amendment to paragraph 21(2)(b) is passed.

[English]

The Chair: You would move a second amendment if this is accepted, would you?

[Translation]

Mr. Robert Lanctôt: May I move a subamendment immediately and add to 21(2)(c), rather than 21(2)(b)—

[English]

The Chair: Excuse me. Are you amending your original amendment?

Mr. Robert Lanctôt: Exactly.

The Chair: Well, that's your prerogative.

[Translation]

Mr. Robert Lanctôt: Right. I am going to ask whether there is unanimous consent to add—

[English]

The Chair: As long as we have it in writing, that's your prerogative. Your amendment is however you present it.

[Translation]

Mr. Robert Lanctôt: Can it be prepared? We do not have it in writing.

[English]

The Chair: I can only receive an amendment in writing.

I would remind committee members as we go through this that, again, anyone has the prerogative to put any amendment any time the clause is called. The only limitation on that is that it needs to be presented to the chair in writing. That's what we're doing now.

Since any member has the right to present an amendment as the clause is called, that's why we can entertain a friendly amendment, because they in turn are putting the amendment forward at that moment and they can put forward any amendment they wish.

We now have the revised amendment, Bloc amendment 12, which includes, in addition to what is there under proposed paragraph 27(c).... Perhaps, Mr. Lanctôt, you could read that section with more clarity than I can.

• 1230

[Translation]

Mr. Robert Lanctôt: Yes. I would move that we add to clause 21(2)(c) the following: “decide whether to approve the transfer or importation and inform the Registrar of that decision.”

[English]

The Chair: Thank you very much. Does everyone understand exactly what we're doing? I turn to Mr. Webster.

Mr. Gary Webster: I think Ms. Roussel will speak to the legal aspects of this.

Ms. Kathleen Roussel: Yes, Mr. Chair, the issue with respect to importations is dealt with in Bill C-15B, specifically in clause 31, which refers back to subsection 40(2) of the Firearms Act. The registrar is assuming the role of issuing authorizations to import, and that role is not new. It was in fact included in the Firearms Act as it presently stands. There have been some adjustments made in Bill C-15B essentially with respect to how he's going to assume that role and there is some more detail. In order for the registrar to issue an authorization to import to an individual who is importing a restricted firearm, that person will first have to make an application to the registrar, and as part of that application, obviously, one of the things the registrar will be looking for is a licence for the type of firearm they wish to acquire.

As the members of the committee know, licences are issued by the Chief Firearms Officer. So in essence what Mr. Lanctôt proposes is not necessary, because what the registrar will do prior to issuing the authorization is make sure the CFO has in fact issued a licence allowing the person to have restricted firearms.

The Chair: Thank you very much. I'll put the question.

Mr. Lanctôt.

[Translation]

Mr. Robert Lanctôt: I have a very important comment to make on this. You say that this is provided for somewhere in the bill. At the moment, it is the chief firearms officer who has the power and authority to make these checks. It is therefore incorrect to say that this has been dealt with. It may have been dealt with for you, in your bill, but that is not what I am asking for. I am asking that the chief firearms officer retain the power to do this and to oversee the importation.

[English]

The Chair: I think we understand the distinction.

(Amendment negatived—[See Minutes of Proceedings]

(Clause 21 agreed to on division)

(Clauses 22 to 40 agreed to on division)

(On clause 41)

The Chair: I go to government amendment number 5.

Mr. Stephen Owen: Thank you, Mr. Chair.

The clause as it presently is in the bill allows licences issued before June 30, 2001, to have their expiry dates extended for staggering purposes. However, a large number of licences were issued over the summer, after June 30, and as such the motion here is to allow a chief firearms officer to stagger the expiry dates of any licence issued before December 31, 2001. So it simply extends that further. The staggering, of course, is important for the efficient renewal of these licences.

(Amendment agreed to—[See Minutes of Proceedings]

(Clause 41 as amended agreed to on division)

(Clause 42 agreed to on division)

(On clause 43)

The Chair: I go to government amendments number 6 and number 7.

(Amendments agreed to on division—[See Minutes of Proceedings]

(Clause 43 as amended agreed to on division)

The Chair: Shall clauses 44 through 51 carry?

Sorry, Monsieur Lanctôt.

[Translation]

Mr. Robert Lanctôt: It is all very well to proceed quickly, but I have put forward some amendments. BQ-13 would add a clause 48.1. I would like the committee to deal with this amendment.

[English]

The Chair: Members of the committee, first I'm going to put the question on clauses 44 to 48.

(Clauses 44 to 48 agreed to on division)

• 1235

The Chair: I'm going to ask for everyone's patience again because this is a new Bloc amendment 13. So let's make sure everyone has the same item.

Mr. Stephen Owen: Mr. Chair, on a point of order, please.

The Chair: Mr. Owen.

Mr. Stephen Owen: I'm informed that Bloc amendments 13, 14, 15, and 16 would be out of order as those sections of the act are not within the scope of this committee's review. They relate to sections that are not being affected by Bill C-15B.

The Chair: The procedural advice I'm getting is that in fact Bloc amendments 14, 15, and 16 are out of order, but 13 is not. So I'm going to entertain 13 from Mr. Lanctôt. That would insert a new clause between clauses 48 and 49, which would be clause 48.1.

Having said that, again I refer you to the fact that we have two amendment 13s in circulation.

Mr. Lanctôt, could you make sure everyone understands the number 13 we're dealing with?

[Translation]

Mr. Robert Lanctôt: Yes, it is the second one you received. It is on page 22 and would add a clause 48.1.

[English]

The Chair: Proceed, please.

[Translation]

Mr. Robert Lanctôt: As you know, when we determined the responsibilities for firearms and the issuance of licences, everything came under the control of the chief firearms officer. We want to clarify the following in this amendment.

We in Quebec want to be sure that everything that has been created by the chief firearms officer and that is managed by him, as well as all the administration, remain under the jurisdiction of the provinces so that the QPF can continue to do its good work.

[English]

The Chair: I think we all understand this and we discussed it before. I'm going to put the question.

(Amendment negatived—[See Minutes of Proceedings]

(Clauses 49 to 51 inclusive agreed to on division)

The Chair: As I mentioned, Bloc amendments 14, 15, and 16 are not in order. I wanted to explain that now because I'm not sure where they would have fit had they been here.

(On clause 52)

The Chair: Now I go to government amendment 8.

Mr. Lynn Myers: It's technical.

The Chair: Let's let the government explain itself, Mr. Myers.

Mr. Stephen Owen: Mr. Webster.

The Chair: It is technical. I think that's an established practice. But it's just that we would like the government to be the one to decide.

Mr. Garry Webster: It's only related to Bill C-36 in the sense of a technical amendment, from that point of view. The wording of this clause was slightly amended and passed third reading in its amended form as part of Bill C-36. The motion is to ensure consistency between both versions of this clause.

(Amendment agreed to on division—[See Minutes of Proceedings]

(Clause 52 as amended agreed to on division)

(Clauses 53 and 54 agreed to on division)

(On clause 55)

The Chair: I refer you to Bloc amendment 13.1.

[Translation]

Mr. Lanctôt.

Mr. Robert Lanctôt: Thank you, Mr. Chairman.

This amendment would add:

• 1240

Earlier, I mentioned as regards the issuance of licences, the duties and functions, and so on, that we clearly insist that all these matters remain in Quebec. Consequently, we want the role, duties and functions and powers of the Commissioner specified in a regulation.

[English]

The Chair: Thank you very much. I'm going to put the question. I think we understand the issue.

(Amendment negatived—[See Minutes of Proceedings]

(Clause 55 agreed to on division)

(Clauses 56 to 58 inclusive agreed to on division)

(Clause 1 agreed to on division)

The Chair: Shall the title carry?

Some hon. members: Agreed.

The Chair: Shall the bill carry as amended?

Some hon. members: Agreed.

Some hon. members: On division.

The Chair: Shall I report the bill with amendments to the House?

Some hon. members: Agreed.

An hon. member: No, keep it a secret.

Some hon. members: On division.

The Chair: I might even write “Toews” right in this.

Mr. Vic Toews: You can. I'd be more than happy.

The Chair: Shall the committee order a reprint for use at the report stage?

Some hon. members: Agreed.

Some hon. members: On division.

The Chair: That's it.

I want to thank the witnesses, members of the committee, and all those who've taken such interest in our business to—

Mr. Vic Toews: Thank them on division.

The Chair: You'd better watch yourself, Mr. Toews, because I'm thanking all these people who are sitting behind you. They're not going to like it if they think you don't appreciate their being here. So I'm doing this for you.

Mr. Vic Toews: On a point of clarification, it was “some” of them I'm thankful for. So it's on division.

The Chair: We'll leave it to each of you to decide if you're one of those.

Thank you very much, everyone, and members of staff. Again, it's a very difficult exercise we go through because we receive amendments right to the moment the clause is called. I think it's very important for everybody to appreciate just how much value is brought by the staff who help us with our work. So thank you.

Some hon. members: Hear, hear.

The Chair: The meeting is adjourned.

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