Bill S-15: An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act

Tabled in the Senate, December 11, 2023

Explanatory Note

Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined Bill S-15, An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act. This review involved consideration of the objectives and features of the Bill.

What follows is a non-exhaustive discussion of the ways in which Bill S-15 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill.

Overview

Bill S-15 would amend the Criminal Code to introduce a new offence that would prohibit possessing, breeding, or impregnating captive elephants and great apes and failing to take reasonable measures to prevent the natural breeding of an elephant or great ape kept in captivity. The new prohibition on possessing an elephant or great ape would not apply to elephants or great apes currently in captivity. Exceptions would also be established to allow for veterinary care; federally-permitted or provincially-licensed scientific research or conservation programs; or for circumstances in which the captivity is in the animal’s best interests and in accordance with a federal permit or a provincial license. The new offence would also prohibit the use of captive elephants and great apes for entertainment in a performance by prohibiting specified actions such as promoting, conducting or receiving money for an exhibition, display or event in which elephants or great apes perform. This new Criminal Code offence would be punishable by a fine not exceeding $200,000.

Bill S-15 would also introduce amendments to the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act. This Act would be amended to prohibit the importation or exportation of a living elephant or great ape into or from Canada. However, the Minister of the Environment (the Minister) would be able to issue a permit allowing importation or exportation of these animals in connection with a scientific research or a conservation program or if it is in the best interests of the animal. The Minister would also be able to authorize elephants or great apes to be kept in the best interests of the animal’s welfare, or to be bred or allowed to breed naturally in connection with scientific research or conservation programs. Finally, the Bill would introduce rules requiring individuals to notify the Minister of any elephants and great apes kept in captivity in accordance with federal and provincial rules, including a requirement to provide the Minister with any information the Minister may require in relation to the elephant, great ape or its offspring.

Prohibition on promoting performances that use captive elephants or great apes for entertainment (section 2(b) of the Charter)

Section 2(b) of the Charter protects freedom of expression. It provides broad protection for all forms of expression. The new offence prohibiting the use of captive elephants and apes in Canada for entertainment in a performance has the potential to engage section 2(b). This is because the proposed offence prohibits promoting the prohibited uses of elephants and great apes for entertainment purposes, in addition to prohibiting these uses themselves.

The following considerations support the consistency of the offence with section 2(b) of the Charter. The proposed offence seeks to protect a vulnerable group of captive animals from harmful practices. It applies to a very specific and limited form of expression that would promote individual instances in which elephants or great apes kept in captivity are used in Canada for performance for entertainment purposes. The proposed promotional offence would not operate to restrict the promotion of otherwise legal entertainment choices nor would it tend to deprive individuals of any information that could be useful to them. Like the marketing of a harmful product, the expression captured by the proposed offence would do little to promote the values that underpin freedom of expression and thus falls outside the core of section 2(b) protection.

Expanded offences under the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (section 7 of the Charter)

Currently, it is an offence to contravene any provision of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act. The Bill would introduce new statutory obligations in relation to the importation and exportation of captive elephants and great apes, breach of which is potentially punishable by way of imprisonment. For this reason, the liberty interest protected under section 7 of the Charter would be engaged.

Section 7 of the Charter protects against the deprivation of an individual’s life, liberty and security of the person unless done in accordance with the principles of fundamental justice. These include the principles against arbitrariness, overbreadth and gross disproportionality. An arbitrary law is one that impacts section 7 rights in a way that is not rationally connected to the law’s purpose. An overbroad law is one that impacts section 7 rights in a way that, while generally rational, goes too far by capturing some conduct that bears no relation to the law’s purpose. A grossly disproportionate law is one whose effects on section 7 rights are so severe as to be “completely out of sync” with the law’s purpose.

The following considerations support the consistency of the offence of contravening any provision of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, as amended by the Bill, with section 7 of the Charter. The measures proposed in the Bill are similar to an offence enacted in the Ending the Captivity of Whales and Dolphins Act in 2019. The measures seek to balance scientific evidence demonstrating that elephants and great apes should not, for reasons of cruelty, be kept in captivity with an awareness that certain limited circumstances could justify their captivity. The scope of the offence is tailored to reflect this balance. Various exceptions to the new prohibition on importation and exportation of elephants and great apes would be recognized. These exceptions could accommodate considerations such as the welfare of elephants and great apes, scientific research programs and conservation programs. This restricts the offence to situations where the importation and exportation of elephants and great apes is not in the animals’ best interests or justified for various other public interest reasons. The Minister would also have discretion to impose any terms or conditions that the Minister thought fit when issuing permits that authorize exceptions to the general prohibition on importation and exportation of these animals. This discretion must be exercised in accordance with the Charter. In addition, only a failure to comply with the new prohibition on the importation or exportation of elephants and great apes could result in potential imprisonment. Non-compliance with the remainder of the new statutory obligations under the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act and the new offence proposed to be added to the Criminal Code would be punishable by way of fine and not imprisonment.

Power to require information (section 8 of the Charter)

The Bill includes provisions to enable the Minister to gather information for the purpose of administering the regime. It would introduce rules requiring an individual to notify the Minister within various time periods specified in the Bill that they have an elephant, great ape, or its offspring in captivity. Individuals would also be required to provide the Minister with any information the Minister may require in respect of the elephant or great ape or its offspring.

Statutory authorities to collect information potentially engage section 8 of the Charter. Section 8 of the Charter protects against “unreasonable” searches and seizures. The purpose of section 8 is to protect individuals against unreasonable intrusions upon their privacy. A search or seizure that intrudes upon a reasonable expectation of privacy will be reasonable if it is authorized by a law, the law itself is reasonable (in the sense of striking an appropriate balance between privacy interests and the state interest being pursued), and it is carried out in a reasonable manner.

The following considerations support the consistency of the information requirement power in the Bill with section 8. The measure applies to only limited information relating to an elephant or great ape in captivity. This information is unlikely to be information in which there is a reasonable expectation of privacy. The information to be collected is relevant to the administration and enforcement of an important regulatory regime. When collecting any private information on a discretionary basis, the Minister is required to exercise discretion in accordance with the Charter and balance any impacts on privacy rights with the statutory objectives of the regime. Statutory powers authorizing the collection of relevant information for regulatory or administrative purposes, rather than for the purpose of investigating criminal offences, have been upheld as reasonable under section 8 of the Charter.