If
this subject is of interest to you, you will find the following very
interesting and educational. The subject covered is complex and so
therefore the argumentation is detailed.
The SQDA thanks the TORONTO COALITION FOR ANTICRUELTY LEGISLATION for
having created this Website and making this information accessible to
many. The Web site address for this Coalition is:
Direct link to the following information:
ORDERED
That a message be sent to the Senate to acquaint their Honours that,
with respect to Bill C-10B, An Act to amend the Criminal Code (cruelty to
animals), this House continues to disagree with the Senate's insistence on
amendment numbered 2 and disagrees with the Senate's amendments numbered 3
and 4. This House notes that there is agreement in both Houses on the need
for cruelty to animals legislation to continue to recognize reasonable and
generally accepted practices involving animals. After careful
consideration, this House remains convinced that the Bill should be passed
in the form it approved on June 6, 2003.
(1) This House does not agree with the amendment numbered 2
(replace "kills without lawful excuse'' with "causes unnecessary death''),
on which the Senate is insisting. This House is of the view that the
defence of "without lawful excuse'' has been interpreted by the case law
as a flexible, broad defence that is commonly employed in the Criminal
Code of Canada. It has been the subject of interpretation by Courts for
many years, and is now well understood and fairly and consistently applied
by courts in criminal trials. This defence has a longstanding presence in
the Criminal Code, including being available since 1953 for the offence of
killing animals that are kept for a lawful purpose. The House is convinced
that the defence of "lawful excuse'' offers clear and sufficient
protection for lawful purposes for killing animals. There are no
authorities that suggest that this defence is unclear or does not cover
the range of situations to which it is meant to apply. For all of these
reasons, this House remains convinced that maintaining the defence of
"lawful excuse'' in relation to offences for killing animals continues to
be the best and most appropriate manner of safeguarding the legality of
purposes for which animals are commonly killed.
The House disagrees with the Senate that the proposed amendment would
provide better protection for legitimate activities. The House is of the
view that the amendment would not bring any added clarity, and would give
rise to confusion. The term "unnecessary'' has been judicially interpreted
to comprise two main components: (a) a lawful purpose for interacting with
an animal, and (b) a requirement to use reasonable and proportionate means
of accomplishing the objective (i.e. choice of means that do not cause
avoidable pain). Only the first part of the legal test for "unnecessary''
is relevant to offences of killing, namely whether there is a lawful
purpose. It has been the law for many decades that persons who kill an
animal without a lawful excuse are guilty of an offence. It has also been
the law since 1953 that if they kill the animal with a lawful excuse, but
in the course of doing so cause unnecessary pain, they are guilty of a
second, separate offence. To collapse the elements of these two different
offences into one will invite a re-interpretation of the well-developed
test of "unnecessary'' and will add confusion, rather than clarity, to the
law.
(2) This House does not agree with the modified version of
amendment numbered 3 (creating a defence for traditional aboriginal
practices), on which the Senate is insisting. This House appreciates the
recent clarification of an ambiguous component of the amendment, and
agrees with the Senate that traditional aboriginal practices that cause
"no more pain than is reasonably necessary'' should be lawful. However,
this House does not agree that the proposed amendment is necessary.
Aboriginal practices that do not cause unnecessary pain are not currently
offences and will not become offences under the Bill. This House believes
that the Bill, as worded, already achieves the objective sought by the
Senate.
This House remains convinced that creating a defence for this purpose is
not legally necessary and may create unintended mischief. Any act that has
a legitimate purpose and does not cause unnecessary pain does not fall
within the definition of the crime, and cannot be the subject of an
offence. A defence only applies where the conduct actually falls within
the definition of the crime and is excused for other reasons. It is
illogical and confusing to create a defence for actions that do not
constitute a crime. More specifically, as causing unnecessary pain is not
a crime, it is not meaningful to create a defence for Aboriginal persons
who cause no more pain than is reasonably necessary. In addition, there is
no need to mention aboriginal practices specifically; the law is already
flexible enough to consider all fact situations and contexts.
The House remains convinced that the wording and effect of the amendment
are ambiguous and unclear. For example, there is no clarity as to what
"traditional practices'' are in the criminal law context and whether there
is sufficient clarity to guide the police in their law enforcement duties.
In the absence of a demonstrated need for clarification in the law, this
amendment could also create mischief by generating a different test for
liability for Aboriginal persons.
This House does not believe that the law would be improved by creating a
defence that is legally unnecessary and has the potential to confuse,
rather than clarify, the interpretation of the offences.
(3) This House does not agree with the amended version of amendment
numbered 4 (the defences in subsection 429(2)). The defences of legal
justification, excuse and colour of right set out in subsection 429(2) of
the Criminal Code are applicable to a multitude of different kinds of
offences including offences of animal cruelty. The defences apply
differently depending on the elements of the offence under consideration.
The phrase "to the extent that they are relevant'' is included to indicate
to the courts that the Bill is not intended to change the defences that
are currently relevant to animal cruelty offences, or the way that they
apply. It makes clear that the intention is to maintain the current
availability and interpretation of defences, and not to alter it. This
phrase sends a clear message to the courts that in any and all cases where
the defences are currently relevant, they continue to be. Whether a
particular defence is relevant will depend on the specific circumstance of
each case. The phrase guarantees an accused access to these defences when
they are relevant; it does not in any way limit access to defences that
are relevant on the facts of the case. For these reasons, the House does
not agree with the amended amendment proposed by the Senate.
ATTEST
The Clerk of the House of Commons
September 25th, 2003
Mr. Paul Harold Macklin
(Parliamentary Secretary to the Minister of Justice and Attorney
General of Canada, Lib.):
Madam Speaker, I am pleased to rise today to introduce the debate on the
message from the other place insisting on further amendments to Bill
C-10B, an act to amend the Criminal Code (cruelty to animals).
Let me remind the House that we have been on a long journey with this
bill. Animal cruelty amendments were originally introduced in 1999 in Bill
C-7, a small omnibus criminal law amendment bill.
Bill C-17 died on the Order Paper when Parliament prorogued in 2000
without having completed second reading.
In March 2001 the government introduced Bill C-15, a new and larger
omnibus criminal law bill containing the animal cruelty amendments. Some
revisions had been made to the amendments to clarify the scope and the
intent of the measures. Subsequently, the House split Bill C-15 in 2001
and the animal cruelty amendments and other amendments became known as
Bill C-15B. The House passed Bill C-15B in June 2002. It died again when
Parliament prorogued that summer.
In October 2002 the bill was reintroduced as Bill C-10 and referred
directly to the other place. In November the other place referred Bill
C-10 to the committee on legal and constitutional affairs with an
instruction to split the bill into two portions. The animal cruelty
amendments became known as Bill C-10B.
Committee hearings in the other place commenced in early December 2002 and
concluded on May 15, 2003. Bill C-10B then received third reading and was
passed in the other place on May 29, with five amendments.
The House debated the amendments on June 6, 2003. The House accepted the
amendment to the definition of animal and a small technical amendment to
the French version of the bill.
It also accepted the spirit of the amendment that made express reference
to the defences of legal justification, excuse and colour of right, with a
modification that removed an unconstitutional reverse onus and
cross-referenced the currently applicable subsection 429(2) instead of
reproducing the defences because this more clearly would indicate to the
courts that existing case law should continue to apply to this new regime.
However, the House rejected the other two amendments that came from the
other place. One of these was an amendment that would have replaced the
offence of killing an animal without lawful excuse with the offence of
causing unnecessary death to an animal. The other amendment was one that
would have provided an express defence for aboriginal practices that do
not cause more pain than is necessary. Both amendments were rejected on
the grounds that, first, they were legally unnecessary; second, they were
confusing; and third, had unclear legal effect.
The House urged the other place to pass the bill in the form in which the
House approved it. A message was sent to the other place to acquaint them
with the position of the House.
The other place considered that message and we are now in receipt of its
response. The other place is insisting on the two amendments that the
House rejected, with a small revision to the aboriginal defence amendment,
and would further modify the legal justification, excuse and colour of
right amendment adopted by the House.
The government's motion before us today makes clear that the government
does not support the amendments that the other place is insisting upon.
The House rejected two of them in June and continues to oppose them. As
for the proposed change to the colour of right amendment, the government
opposes that as well.
These animal cruelty amendments have been before Parliament in one form or
another for nearly four years. A lot of hard work and discussions have
taken place over that time between the government, and various individuals
and groups concerned with the legislation.
» (1710)
In an effort to clarify the law as much as possible, even if the
clarification was not required as a matter of law, the legislation has
been amended three times already since it was first introduced in 1999.
In the view of the government, the form of the bill passed by the House in
June satisfies the remaining concern of the stakeholders that have
followed the progress of the legislation. It constitutes a compromise that
strikes the correct balance between clarifying the law as it applies to
animal industries without diluting the purpose and effect of the
legislation.
With the participation of the other place, this hard work and compromise
has brought the bill to a form that animal welfare groups on the one side
and animal industry groups on the other side can all support.
In short, it seems that no one is asking for these additional changes that
the other place is insisting on. The other place may think they are
crucial, but this House does not, nor do any of the organizations that
represent the people who work with animals.
Let me address each of the amendments in turn. The first amendment would
replace the offence of killing an animal without a lawful excuse with the
new offence of causing unnecessary death to an animal.
The government is of the view that the defence of lawful excuse is a well
developed and well understood defence. The courts have interpreted on many
occasions that it is a flexible, broad defence that is commonly employed
in the Criminal Code of Canada. It is fairly and consistently applied by
courts.
More importantly, since 1953, this defence has been applicable to the
offence of killing animals that are kept for lawful purpose. It has a
history in the context of animal cruelty offences.
The government is convinced and satisfied that the defence of lawful
excuse offers adequate and unambiguous protection for lawful purposes for
killing animals. No witnesses who testified at the committee of this House
or of the other place testified that this defence was unclear or
unsatisfactory.
For all of these reasons the government remains convinced that maintaining
the defence of lawful excuse in relation to offences for killing animals
continues to be the best and most appropriate manner of safeguarding the
legality of purposes for which animals are commonly killed.
Further, the government does not believe that the proposal of the other
place would improve the law. In fact, it is likely that the proposal would
actually give rise to confusion and uncertainty. The proposal would use
the term unnecessaryto apply to killings, but the term unnecessaryas it
has been judicially interpreted does not logically apply to the act of
killing. Unnecessaryis currently only applicable to the acts of causing
pain, suffering or injury. It has two main elements: first, a lawful
purpose for interacting with an animal; and second, a requirement to use
reasonable and proportionate means when accomplishing this objective.
It is clear that in terms of the act of killing only the first part of the
test for unnecessaryis relevant and logically applicable. The question is,
was there a lawful purpose? To ask the question about reasonable means
makes no sense. It is not a qualitative assessment but rather a yes or no
question about whether there was a good reason for the killing. This is
why the defence of lawful excuse works and the concept of unnecessarydoes
not.
It is currently an offence to kill an animal without a lawful excuse. It
is also an offence to kill an animal with a lawful excuse but in a manner
that causes it unnecessary pain. These are currently two distinct and
separate offences.
» (1715)
The proposal would fold the elements of these two different offences into
each other. This could lead to a reinterpretation of the well developed
test of unnecessary. In short, this will add confusion rather than clarity
to the law. For these reasons the government does not accept this
amendment.
With respect to the second amendment, the amendment which would create a
defence for traditional aboriginal practices, the government does
recognize that a small change was made that removed an element that was
overly broad. The amendment would create a defence for traditional
aboriginal practices that cause no more pain than is reasonably necessary.
The government agrees that this should indeed be the case and in fact
already is the case. Therefore, the amendment is not necessary.
By virtue of the way the offence is defined, it is already the law that
aboriginal practices, that cause no more pain than is reasonably
necessary, are not currently offences. If we cause no more pain than is
reasonably necessary, we are not causing unnecessary pain, which is what
the offence requires. If we are not committing an offence, we do not need
a defence. Nothing in Bill C-10B will change this.
The government believes that the existing law and the bill, without the
new and special defence, already achieve the objective sought by the other
place.
There is no need to mention aboriginal practices specifically. The law is
already flexible enough to consider all situations and contexts. In
addition, by adding a new and special defence for aboriginal practices
when one is not necessary, this proposal could unintentionally create
mischief.
It is confusing to create a defence for actions that are not a crime. The
government does not believe that the law would be improved by creating a
defence that is legally unnecessary and has the potential to confuse
rather than clarify the interpretation of the offences.
The final proposed amendment in the message from the other place relates
to the defences of legal justification, excuse and colour of right set out
in subsection 429(2). The proposal would remove the phrase to the extent
that they are relevantfrom the amendment that was passed by this House in
June. The government believes that these words are helpful and should
remain.
The defences in subsection 429(2) of the Criminal Code apply to a variety
of different offences, including animal cruelty. The inclusion of the
phrase to the extent that they are relevantis intended to signal to the
courts that the existing manner of applying those defences to animal
cruelty offences should not change. It makes clear that the intention is
to maintain the status quo, not to alter it.
The words are clear and not capable of being misunderstood. The defences
are available in any and all cases where they are relevant. The relevance
of a defence to a particular case depends on the specific circumstances
and the facts of that case. The phrase guarantees an accused access to
these defences when they are relevant. It does not limit or otherwise take
away a defence that could be raised.
There can be no possible unfairness to an accused person to be denied a
defence that is not relevant. That is just common sense. For these
reasons, the government does not agree with the amended amendment proposed
by the other place.
The government would once again like to thank the other place for giving
Bill C-10B such thorough consideration and attention, but the government
believes that the time has come to pass Bill C-10B in the form this House
approved in June.
This bill already safeguards humane and reasonable practices involving
animals and has the support of groups representing hunters, farmers,
fishers, animal researchers, and those representing the welfare of
animals. There is a tremendous degree of consensus now and a strong desire
on the part of these organizations and hundreds of thousands of Canadians
to see the bill become law.
I urge all members of the House to vote in favour of the government's
message which rejects any further amendments and requests that the other
place pass Bill C-10B as quickly as possible.
