Friendly Fire

C-246 pitted Liberals against Liberals

That PMBs are, by definition, independent of the party means that some of their fiercest debates in the House can take place between Members of the same caucus. 

A good example of this happened between Nathaniel Erskine-Smith, Liberal MP for Beaches–East York in Toronto, and myself, over the issue of animal rights and how to modernise them. Erskine-Smith is an avid and powerful defender of animal rights. Since our encounter on this issue, I have also come to regard him as one of the best MPs the House has had in recent history – even if we don’t agree on all the finer points. He is excellent at knowing how to toe the party line without necessarily putting his entire foot on it, careful to skirt at the edges of tolerance while also proposing significant and substantive policy shifts. 

Erskine-Smith probably has more concrete policy accomplishments under his belt than any backbench MP in a generation, and proves that the status quo is not actually necessary. His approach is, however, also why party discipline exists in the first place — to prevent the appearance of a party that does not know what it stands for with a public voice that is not unified and cohesive; his positions may help him in his riding but can easily be painted as party policy that hurts others in their ridings. A Parliament full of independent, capable people sharing his style would offer significant and substantial progress on numerous issues, but also be seen by the public through the eyes of the punditocracy as chaotic and dysfunctional, rather than diverse and effective.

Early in our mandate, Nate, as we called him, proposed Bill C-246, “An Act to amend the Criminal Code, the Fisheries Act, the Textile Labelling Act, the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act and the Canada Consumer Product Safety Act (animal protection)” or simply the “Modernizing Animal Protections Act”. 

It was very strongly worded and he mounted a significant social media campaign to promote it, though I teased him that it was ineffective in my riding as most of my population still didn’t have high speed Internet. It proved divisive in caucus and in the House, pitting people more along urban-rural fault lines than along party lines. I understood what he was asking for – having been to farms where animals cannot move more than their own body length year-round, the great shame of the dairy industry, as just one example; I get it. But it needed a collaborative rather than combative approach, and one of the harshest speeches I ever gave was in response to his Bill, on September 28th, 2016:

Mr. Speaker, I take no pleasure in rising today on Bill C-246.

I am, first and foremost, a rural MP. I was born in Sainte-Agathe-des-Monts. I grew up in Sainte-Lucie-des-Laurentides. At home, we grow and produce most of our own food, including vegetables and meats. Our farm participates in WWOOF, a worldwide program that matches volunteers with organic farms.

I have a fishing licence in my pocket. My father has a hunting licence. We raise chickens, ducks, and geese. We also eat a lot of game. In October, much of my riding empties out because people go deer and moose hunting. People think of the year as a succession of open seasons.

All year, farmers prepare their animals for slaughter so they can sell the meat and feed cities. That is normal, everyday life for people in the regions.

All over the world, there are legitimate reasons to raise and slaughter domestic animals or to hunt, trap, and fish wild animals. The world population of chickens, as an example, exceeds the world population of humans by a factor of about 7:1.

While there are legitimate reasons to work with animals, there are people who have abused them. For example, worldwide problems, such as puppy mills, the wanton waste of shark finning without using the rest of the animal, poaching of elephants and rhinoceroses for their ivory, allowing animals to fight, killing animals purely for sport, or slaughtering them in torturous and unethical ways are all places where the great majority of us would agree improvements must be made.

However, that is not, despite the appearance of social media pressure, the goal of Bill C-246.

The bill, as written, and as is before us here at second reading, is not a moderate bill looking to tangibly and positively improve animal welfare. It is an overreaching bill by a passionate advocate whose incredible work on this file I deeply respect, even if I do not agree. There are few members of this place ever to have put their heart and soul into a cause they believe in as completely and selflessly as the member for Beaches-East York, and I think we all respect and appreciate that.

However, that is not what is before us. What is before us is a bill, not a person, and the effect of the bill is to risk criminalising currently legal animal activity.

I do not believe my family belongs in prison for sustainably feeding ourselves. I do not believe tens of thousands of my constituents should risk prison for feeding their families, either.

We are reassured in supporting statements that the bill has no effect on currently legal activity. However, the only reassurance we have is the statements of those supporting the bill. The language of the bill itself is not so ambiguous.

Section 182.1(1)(b) reads, for example:

Everyone commits an offence who, wilfully or recklessly,...

...kills an animal or, being the owner, permits an animal to be killed, brutally or viciously, regardless of whether the animal dies immediately;

It is easy to argue that because killing an animal necessarily results in its death, the act is inherently brutal or vicious. Bringing a legal case against anyone who kills any animal in any circumstance is therefore enabled by this act. There is no exception for aquaculture, agriculture, hunting, fishing, or even accidents, and the instantaneous death of the animal is explicitly removed as a factor for consideration.

To add insult to injury, the Criminal Code, section 429(2) currently reads:

No person shall be convicted of an offence under sections 430 to 446 where he proves that he acted with legal justification or excuse and with colour of right.

While Bill C-246 would fix the gender-specific references to be gender neutral, it would also remove the justification defence from sections 444 to 446 of the Criminal Code, which are the sections that currently deal with animal welfare.

The penalty is set at up to $10,000 or five years in a federal penitentiary, and regardless of the probability of conviction, the case needed to bring some of these situations to trial would be established by this open-ended bill.

A federal penitentiary is no laughing matter. There is one in my riding at the former cold war missile base at La Macaza. I toured that facility this summer, and I do not wish to return there as a result of our fall harvest.

We are assured by proponents of the bill that the legal system would not tie itself up in these legal cases. This letter I received in my office, for example, reads, in part:

The Canadian Sportfishing Industry Association's claims about how Bill C-246 would impact fishing are ludicrous. They state that “Even the act of baiting a hook with a worm would be considered an act of cruelty according to the Bill.” [The MP for Beaches—East York] and law professor Peter Sankoff contend that such claims about the effects Bill C-246 would have are preposterous. Can anyone imagine Canada's criminal justice system wasting time and resources to attempt to prosecute someone over such a ridiculous allegation?

Yes, I can imagine that. Because, were C-246 to receive royal assent as it is written, a law telling police and prosecutors to do exactly that would be on the books, having been placed there, after thorough examination, by a majority of parliamentarians, and remaining there until one or several judges, being faced with such a ridiculous allegation in their court room, struck down that law.

Moreover, the bill contradicts its proponents on this very point. It creates section 182.5 which states:

For greater certainty, nothing in this Part shall be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.

If the bill does not risk a creative new application, why would it need an exemption? It begs the question, what purpose is a law whose authors do not wish it to be enforced? Why go through the trouble of authoring and presenting a bill if the hope is that the justice system would ultimately ignore or reinterpret it? If the desire of the drafters of this legislation is to ensure that existing, accepted, or common practice not be affected by this bill, why does it not state that?

The proponents tell us that it would have no such effect. However, in the case of a disagreement between speeches in Parliament and the text of the resulting act, it is the text of the act that would form the basis of the criminal case.

No one here is against stopping the genuine abuse or mistreatment of animals under any circumstances. However, my job here is also to protect the people who work with animals, live with them, take care of them, live by them, and feed the rest of us.

I want to highlight the good work of the National Farm Animal Care Council, which consists of farmers, processors, the Canadian Veterinary Medical Association, national animal welfare associations, provincial farm animal care councils, and so on. They work on a collaborative basis to enhance codes or practices on our farms. They also adhere to core values, such as accepting the use of farm animals in agriculture, believing that animals should be treated humanely, and supporting projects that are scientifically informed. That is the way we work to improve animal welfare in Canada. Unfortunately, Bill C-246 could undo the good work of those organisations by unfairly targeting them through the legal system.

We have been told that this bill will be modified at committee to address the many concerns that have been raised, which I have only barely scratched the surface of here today. This presupposes the outcome of the committee hearing. As members know, committees are their own masters. To modify the substance of the bill, the unanimous consent of the chamber is required. We have seen that this is not achievable.

Procedurally, a bill at committee cannot simply be redrawn. Amendments may be proposed by members, but it is up to the committee to adopt or reject them. Significant changes are not in order, and the chair of the committee and the Speaker of the House have a responsibility, a duty deeply established in parliamentary convention, to rule as out of order any changes that are beyond the scope of a bill.

To get a bill to committee, the House must agree with it in principle. To change it, the committee must keep it within that principle.

For me to vote for this bill at second reading, I must agree with the text as it is written in principle. I do not believe that hunters, fishermen, trappers, farmers, homesteaders, and others working with animals belong in prison. I do not agree with the bill in principle. I hope that my colleagues will have the wisdom and the foresight to reject the bill, to kill it without further pain or suffering.

The Bill was ultimately defeated at second reading, with the Cabinet, most rural Liberals, and most Conservatives opposing it, and tepid changes around the edges of animal rights law were made later in the term. The core issues of the Bill and how to solve them in a way that satisfies everyone have yet to be meaningfully addressed.