Bill C-17: An Act to amend the Criminal Code (cruelty to animals, disarming a peace officer and other amendments) and the Firearms Act (technical amendments) (LS-358E)

This document was prepared by the staff of the Parliamentary Research Branch to provide Canadian Parliamentarians with plain language background and analysis of proposed government legislation. Legislative summaries are not government documents. They have no official legal status and do not constitute legal advice or opinion. Please note, the Legislative Summary describes the bill as of the date shown at the beginning of the document. For the latest published version of the bill, please consult the parliamentary internet site at www.parl.gc.ca.

BILL C-17: AN ACT TO AMEND THE CRIMINAL CODE
(CRUELTY TO ANIMALS, DISARMING A PEACE OFFICER
AND OTHER AMENDMENTS) AND THE FIREARMS ACT
(TECHNICAL AMENDMENTS)

Bill C-17 was tabled by the Minister of Justice and received first reading in the House of Commons on 1 December 1999. While Bill C-17 is frequently referred to as "the cruelty to animals legislation," it is important to note that this is an omnibus bill dealing with several unrelated criminal law matters. The key elements in Bill C-17 are:

A comprehensive review of the current provisions in the Criminal Code relating to cruelty to animals is probably long overdue.(3) In response to the dissatisfaction with the provisions expressed by many groups and individuals, the Department of Justice conducted a review in 1998. A consultation paper entitled Crimes Against Animals was distributed to allow groups and individuals to suggest the modifications that would be required to deal effectively with cruelty to animals. One of the reasons for the department’s action was "mounting scientific evidence of a link between animal abuse and domestic violence and violence against people generally."(4) The government’s initiative "drew hundreds of responses and thousands of signatures calling for more effective federal legislation to deal with cases of cruelty."(5) The proposed changes to the Criminal Code are the result of this consultation process and are said to signify "the seriousness of these acts that are often warning signs of violent behaviour aimed at people."(6)

The proposed offence of disarming or attempting to disarm a police officer is the result of a process initiated by the Canadian Police Association. The purpose of this amendment is to "recognize the serious danger police officers face when they are deprived of their weapon as they carry out investigations and make arrests."(7)

The proposed changes to the firearms legislation are intended to address concerns that have been raised by firearms dealers. These proposals are supported by the Minister’s User Groups on Firearms, a volunteer consultative body that provides advice on the development and implementation of the Canadian Firearms Registration System.

Clause 1 would amend the heading of Part V of the Criminal Code by adding the words "cruelty to animals." This change is required because the bill proposes to move the current provisions relating to cruelty to animals from Part XI, entitled Wilful and Forbidden Acts in Respect of Certain Property, to Part V, which would be renamed Sexual Offences, Public Morals, Disorderly Conduct and Cruelty to Animals. This modification is more than merely cosmetic since it would change the way the Criminal Code regards animals in that the cruelty to animals offences would no longer be treated, in large part, as property crimes. In fact, one of the premises of this proposed legislation "is that all animals feel pain and are deserving of legal protection from negligence or intentional cruelty."(8) Thus, animals would no longer be regarded essentially as property but rather as beings that feel pain.(9) Protecting animals, even in part, by virtue of their status as property has been criticized on the grounds this "suggests that the law is less concerned with protecting animals as beings capable of suffering than with the protection of human proprietary interests, and does not satisfactorily convey a moral obligation to avoid inflicting unnecessary harm."(10) In addition, it is argued that this approach "fails to convey the seriousness of the crimes to the various players in the criminal justice system, including prosecutors and judges."(11) The proposed modification would thus clarify the basis on which animals are protected in the Criminal Code.

Clause 2 would add a new section 182.1 to Part V of the Criminal Code to consolidate the current Criminal Code provisions relating to cruelty to animals and to add certain new elements.

Proposed section 182.1(1) would set out the activities in relation to animals that would attract criminal liability:

New section 182.1(2) would set out the following series of offences relating to the failure to provide adequate care:

Two aspects of the new provisions require discussion: the mental element of the offence and the defences available to the accused. With respect to the mental element, the current provisions often make reference to the requirement that the act be done "wilfully." This indicates that the highest standard mens rea is required for these offences. However, section 429(1), which applies to the cruelty to animals offences, states that everyone "who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed…willfully to have caused the occurrence of the event." Thus, this provision qualifies the term "willfully" to require only that the accused have knowledge that the act or omission will probably cause the occurrence of the event and to show recklessness as to whether it does so. While most of the proposed provisions do not specify a mental element, the offences in proposed section 182.1(1), being more serious offences with more severe penal sanctions, would probably be interpreted as requiring a higher standard mens rea. The courts would probably require evidence that the accused acted intentionally, recklessly or with wilful blindness. With respect to the offences in section 182.1(2), which deal with neglect, a lower standard of mens rea, such as criminal negligence, would probably suffice.(21)

With respect to defences, the current provisions state that no person shall be convicted of an offence "where he proves that he acted with legal justification or excuse and with colour of right."(22) The new provisions, in certain cases, would provide that it would be an offence if the person acted "without lawful excuse."(23) The colour of right defence(24) generally applies to property crimes; thus, its exclusion from the proposed provisions is not surprising since these crimes are instead to be viewed in future as crimes against animals. In addition, the defence of mistake of fact would still be available in the appropriate circumstances. The purpose of excluding justification appears less clear. One could argue that the distinction between justification and excuse is only useful as an interpretative tool to determine the scope of the defence and that, therefore, the term "excuse" in the proposed provisions would apply to both a lawful excuse and a lawful justification. There does not appear to be a valid reason, however, why the provisions do not make reference to the expression "lawful justification or excuse."

New section 182.1(3) would set out the penalties for the offences in new section 182.1(1), which which would be hybrid offences with a maximum punishment of five years’ imprisonment when the Crown proceeded by indictment or a maximum eighteen months’ imprisonment where the Crown proceeded by way of summary conviction.

New section 182.1(4) would set out the penalties for the offences in section 182.1(2). Once again these would be hybrid offences with a maximum two years’ imprisonment when the Crown proceeded by indictment. When the Crown proceeded by way of summary conviction, the individual would be liable to six months’ imprisonment and/or a fine of not more than $2,000.(25)

In addition to any other sentence set out above, a court would be able, as under the present provision, to make an order prohibiting the accused from owning an animal or having custody or control of an animal. A new feature would also allow the court to prohibit the accused from residing in the same premises as an animal. The maximum length of the prohibition would also be changed from its present maximum of two years to allow the court to make the prohibition for any period it felt appropriate and, in the case of second and subsequent offences, for a minimum of five years.(26)

New section 182.1(5)(b) would add a new feature to the provisions dealing with cruelty to animals by authorizing a court to order, on application by the Attorney General or on its own motion, that the accused pay reasonable costs incurred to take care of the animal. Payment could be made to any individual or organization that cared for the animal and would include such costs as veterinarian bills and shelter costs if these were readily ascertainable.

Section 182.1(6) would provide that a person who contravened a prohibition order made by the court under section 182.1(5)(a) would be guilty of an offence punishable on summary conviction and be liable to six months’ imprisonment and/or a fine of not more than $2,000.(27)

One of the purposes of this bill is to increase the penalties relating to cruelty to animals and to provide a broader range of criminal sanctions. Under the current provisions, the offences are generally summary conviction offences.(28) This means that accused are liable to a maximum of six months’ imprisonment and/or a fine of not more than $2,000.(29) Under the proposed legislation, the maximum length of imprisonment would be increased to five years and there would be no set limits for fines for the more serious offences.(30) With the creation of hybrid offences, the option of proceeding by way of summary conviction would still be available to the Crown for less serious offences but, in more serious cases, the prosecutor would have the option of proceeding by indictment, thus allowing for increased penalties. It is hoped that this would deter people from abusing animals and generally lead to crimes against animals being treated more seriously.

New section 182.1(7) would make general provisions relating to restitution orders applicable to orders made under section 182.1(5)(b).

New section 182.1(8) would define "animal" for the purposes of subsection (1) to (7) as a vertebrate, other than a human being, and any other animal that has the capacity to feel pain. This is another example of a proposed change in how the Criminal Code views animals, so that they would be seen less as property and more as beings with the capacity to feel pain. In addition, all animals that satisfied the definition would be protected. In some cases, the current provisions limit their application to certain types of animals (for example, cattle and domesticated animals).

Clause 4 of the bill would make a technical amendment to section 264.1(1)(c) of the Criminal Code by deleting the reference to "or bird."

Clause 5 of the bill would create a new offence of disarming a peace officer. Proposed section 270.1(1) would make it an offence to take or attempt to take a weapon in the possession of a peace officer without his or her consent when the peace officer was engaged in the execution of his or her duty.

New section 270.1(2) would define "weapon" for the purposes of subsection (1) as "any thing that is designed to be used to cause injury or death to, or to temporarily incapacitate, a person." This would include not only firearms but also pepper spray and other items designed to be used to cause injury or death to, or to temporarily incapacitate, a person.

New section 270.1(3) would set out the penalty for this hybrid offence, which would have a maximum penalty of five years’ imprisonment when the Crown proceeded by indictment or a maximum of 18 months’ imprisonment where the Crown proceeded by way of summary conviction.

As previously stated, this proposed offence is the result of a process initiated by the Canadian Police Association. A resolution from their annual general meeting in Regina in 1999 reads as follows:

WHEREAS

The disarming of police officers of firearms and the interference by offenders with the equipment issued to peace officers is a matter of serious concern which is worthy of note by a separate and distinct recorded criminal offence.

BE IT RESOLVED THAT

The Criminal Code of Canada be amended so as to create the indictable offence of disarming a police officer or interfering with equipment issued to a peace officer and that section 553 of the Criminal Code of Canada be amended to include this offence in those offences over which the provincial court has absolute jurisdiction.

Their suggested offence, similar but not identical to what is proposed in Bill C-17, states:

Clause 3 would repeal the definition of "child" in section 214 of the Criminal Code which applied to Part VIII dealing with offences against the person and reputation. The provision at present defines child as including an adopted child and an illegitimate child. The purpose is to "remove the negative and unnecessary reference to "illegitimate child" in the Criminal Code."(31)

Clauses 6, 7 8 and 11 would add the offence in section 153.1 of the Criminal Code (sexual exploitation of person with disability) to the list of other sexual offences for which there are special evidentiary rules. Thus, a person with a disability who was the victim of sexual exploitation would receive the same evidentiary protection as is afforded to other victims who testify at trial. The following are the provisions of the Criminal Code that would be amended:

Clause 10 would make changes to the French version of section 462.47 of the Criminal Code to make it conform to the English version. "Il est déclaré pour plus de certitude" is replaced by "Il est entendu que" to conform to the English version which states "For greater certainty." In addition, "croire" is replaced by "soupçonner" to conform to the English provision which states "suspects."

Clauses 12(1), 12(2), 13(1), 13(2), 14(1) and 14(2) would make technical amendments to the Criminal Code to provide that certain provisions refer to "a provincial court judge" rather than "the provincial court judge." This relates to informations laid before provincial court judges with respect to persons who fear that another person will commit a criminal organization offence,(32) or that another person will commit a listed sexual offence,(33) or that another person will commit a serious personal injury offence.(34) As a result of the amendments, a provincial court judge who received such informations could cause the parties to appear before another provincial court judge and the judge would no longer be obliged to cause parties to appear before himself or herself. In addition, "a provincial court judge" (rather than "the provincial court judge" who had set them) could make variances to the conditions of a recognizance relating to these provisions.

Clause 15 would make changes to the French version of Form 11.1 of the Criminal Code to make it conform to the English version.

Clause 16 proposes changing the licensing requirements for employees of businesses who deal with regulated items. The legislation currently states that, in order for the business to be eligible for a business licence, every employee who, in the course of duties of employment, handles or would handle firearms, prohibited weapons, restricted weapons, prohibited devices or prohibited ammunition must be the holder of a licence authorizing the acquisition of restricted firearms.(35)

The proposed amendments would set out different licensing requirements depending on the items that the employee handled and the items that the business possessed. The objective is "to better reflect appropriate firearms safety training for employees who handle restricted and prohibited firearms as opposed to non-restricted firearms."(36)

Section 9(3) of the Firearms Act would be replaced by new subsections (3) and (3.1) Under new subsection (3.1), a business would be eligible for a licence authorizing the possession of prohibited weapons, restricted weapons, prohibited devices or prohibited ammunition if every employee who handled these items in the course of duties of employment was eligible to hold a licence under sections 5 and 6 of the Firearms Act. The items mentioned in this proposed subsection do not include firearms. This means that these employees (who did not deal with firearms) would continue to be screened to determine whether they posed a risk to public safety (they would have to pass the background checks) but they would not be required to take a firearms safety course.

Under new subsection (3) a business would be eligible for a licence authorizing the possession of firearms if every employee who handled such items in the course of duties of employment was the holder of a licence that authorized the acquisition of firearms. These employees would be screened to determine if they posed a risk to public safety and they would also be required to complete and pass the Canadian Firearms Safety Course (or otherwise satisfy the safety course requirement pursuant to section 7(1) of the Firearms Act).

Employees of businesses that dealt only in non-restricted firearms (firearms that are neither restricted nor prohibited), would no longer need to hold a licence authorizing the acquisition of restricted firearms and therefore would not be required to complete and pass an additional restricted firearms safety course.

Businesses wishing to be eligible for a licence authorizing the possession of both restricted and prohibited firearms would continue to have to meet the requirements in the current legislation. Their employees who handled firearms in the course of their duties of employment would not only be screened to determine if they posed a risk to public safety but would also have to hold a licence authorizing the acquisition of restricted firearms; that is, they would have to complete and pass both the basic and the restricted firearms safety courses. This requirement would apply to all employees of such a business who handled firearms, whether or not they were restricted.

Clause 17 deals with handguns that became prohibited on 1 December 1998 on the coming into force of legislation passed by Parliament in 1995 (25 and 32 calibre handguns and handguns with a barrel equal to or shorter than 105 mm).

The current amnesty for individuals who acquired such a handgun after 14 February 1995 and before 1 December 1998 and businesses in possession of such handguns has recently been extended to 31 December 2000. Pursuant to this amnesty, firearms dealers whose inventories include handguns acquired on or before 14 February 1995 and reported to the Commissioner or to an authorized person under paragraph 105(1.1)(d) of the former Act may deactivate them, replace the barrels with longer ones, export them, turn then over to police, or sell or give the handguns to a business licensed to possess them. The only options for a dealer who acquired the handguns after 14 February 1995 are to deactivate them, replace the barrels with longer ones, or turn the handguns over to police. The business must exercise one of these options by 1 January 2001.

The 14 February 1995 date was chosen since this was the date on which Bill C-68 received first reading in the House of Commons. Thus, people were not able to grandfather themselves between the date the legislation was introduced and the date it came into force. The prohibition of such firearms should not have come as a surprise since the government had announced its legislative intentions in a document released in November 1994 entitled The Government’s Action Plan on Firearms Control.

In addition to the amnesty, the current legislation does allow these prohibited handguns to be owned by individuals in the grandfathered class (people who had registered or had applied to register one of these prohibited firearms by 14 February 1995).(37) This exemption applies only to prohibited handguns for which a registration certificate under the former legislation had been issued to or applied for by that or another individual who was in possession on 14 February 1995. Thus, the existing legislation creates a class of grandfathered individuals who may possess such firearms and a class of grandfathered firearms that may be possessed; both the firearm and the individual in possession of it must be grandfathered to satisfy the requirements of the exemption.

Since the current legislation applies only to prohibited handguns for which, on 14 February 1995, a registration certificate under the former legislation had been issued to or applied for by the individual now in possession or another individual, only firearms possessed by individuals can be in the grandfathered class. Dealer inventories and firearms in the possession of other businesses or public agencies did not have registration certificates; such firearms were recorded with the former restricted weapons registration system but not registered. Thus, at present, firearms that were in dealer inventories are not grandfathered and cannot be sold to grandfathered individuals.

This bill would replace section 12(6) of the Firearms Act with new subsections (6), (6.1) and (6.2) in order to "grandfather" the inventories of prohibited handguns held by businesses on 14 February 1995. The amendment would allow dealers to retain these prohibited handguns and sell them to grandfathered individuals (see above) thereby providing another option not available under the amnesty. Nor would this have to have been done by 31 December 1999; the government has also indicated upcoming changes to the licensing regulations whereby a business would be able to retain such firearms in its inventory and to sell them to a prescribed purpose business or to a grandfathered individual.

Thus, an individual who purchased such a firearm from a business after 14 February 1995 and was not grandfathered would, however, be able to sell the firearm to a grandfathered individual. An amendment would also probably be required to the Order Declaring an Amnesty Period. The individual would have to effect such a sale or one of the other options listed in the amnesty by the end of the amnesty period.

As stated above, the grandfathered class is at present limited to prohibited handguns for which, on 14 February 1995, a registration certificate under the former legislation had been issued to, or applied for, by the individual now in possession or another individual. The amendment clarifies that for these firearms to be in the grandfathered class, a registration certificate would not only have to have been applied for but also issued.

Clause 18 provides that the provisions in the bill would come into force "on a day or days to be fixed by order of the Governor in Council.

Response to Bill C-17 appears to be generally favourable. For example, Grant Obst, President of the Canadian Police Association, the organization that initiated the process leading to the proposed offence of disarming a peace officer, has stated that the members of the association "welcome the introduction of this new law and encourage its speedy passage by Parliament."(38)

With respect to the proposed changes to the Firearms Act, a spokesperson with the National Firearms Association has stated that, while the organization was still steadfastly opposed to the Firearms Act, the proposed changes to this Act were "reasonably sensible."(39)

Controversy does exist, however, with respect to the cruelty to animals provisions of Bill C-17. The response of groups and individuals seeking increased protection for animals has been generally positive. For example, Bob Gardiner, Chair of the Status of Animals Committee of the Canadian Federation of Humane Societies has stated: "This is a significant advancement for the protection of animals in Canada."(40) He added, "the proposed amendments to the Criminal Code announced today by the Minister of Justice will serve us as a deterrent to crimes against animals. Animal abuse should be considered a serious offence based on the fundamental moral value of animals as being capable of suffering."(41)

Certain groups are concerned about the possible applications of the law, however. For example, hunters and trappers fear criminal prosecution for certain acts. In addition, certain acts of farmers (e.g., branding) and bio-medical researchers may lead them to fear criminal prosecution. Some of these groups have requested that the language in the legislation be clarified.(42) For example, they are concerned with respect to the possible interpretation that might be given to the phrases causing "unnecessary pain, suffering or injury" and "brutally or viciously" killing an animal. Clearly, the legislation was drafted to allow some causing of pain and suffering to animals by including the word "unnecessary." If the pain and suffering was necessary for some lawful purpose, it would not appear to be covered by the proposed provisions.

It is possible that the concerns of these groups could be alleviated if the legislation set out as exceptions certain acts that would not be considered criminal. For example, the Law Reform Commission of Canada in its report on recodifying criminal law set out the following exceptions to the cruelty to animals offence it proposed:

The addition of similar exceptions in the proposed legislation might limit the fears of those groups concerned with its application

(3) Criminal Code, Supra note 1, ss. 444 to 447. Although there has been a series of amendments throughout the years, the offences relating to cruelty to animals have not changed significantly since 1892.

(4) Covering letter to the consultation paper entitled "Crimes Against Animals," Department of Justice, September 1998.

(5) Backgrounder, Highlights of the Omnibus Bill, Department of Justice, 1 December 1999, p.1.

(6) News Release, "Justice Minister Introduces Strengthened Criminal Code Provisions on Cruelty to Animals and Police officer Safety," Department of Justice, 1 December 1999, p.1.

(7) News Release, "Justice Minister Introduces Strengthened Criminal Code Provisions on Cruelty to Animals and Police Officer Safety," December 1999.

(9) Not all of the current provisions have as a purpose the protection of proprietary interests. For example, section 446(1)(a) provides protection to all animals, even though there is no property relationship with a person.

(10) Department of Justice, Crimes Against Animals, A Consultation Paper, "Part Three: Reconsidering the Criminal Law," September 1998.

(12) The current provision is similar but requires that the person commit the act "wilfully." See Criminal Code s. 446(1)(a). Section 446(3) states that "evidence that a person failed to exercise reasonable care or supervision of an animal or a bird thereby causing it pain, suffering, damage or injury is, in the absence of any evidence to the contrary, proof that the pain, suffering, damage or injury was caused or was permitted to be caused wilfully..." In addition, section 429 (1) states that everyone "who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed…wilfully to have caused the occurrence of the event."

(13) It is currently an offence to wilfully kill, maim, wound or injure cattle or to wilfully and without lawful excuse kill, maim, wound or injure domestic animals; see Criminal Code sections 444 and 445. Section 429(2) states that no one "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." The proposed provision mentions excuse but does not mention justification or with colour of right.

(14) The current provisions are similar but apply only when the person does these acts wilfully. See Criminal Code sections 444 (a) and (b) (cattle), 445 (a) and (b) (other animals - domesticated) and 446(e)(domestic animals). The proposed provision would apply to all animals and would not be limited to cattle and domestic animals as is now the case. In addition, section 429 (1) states that everyone "who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed…wilfully to have caused the occurrence of the event."

(15) This is similar to the current provision. See Criminal Code section 446(1)(d), which states "encourages, aids or assists at the fighting or baiting of animals or birds."

(16) This is similar to the current provision but add the terms "any other arena for the fighting of animals"; see Criminal Code section 447(1).

(17) This is similar to the current provision but is expanded to cover all animals and not only captive birds. See Criminal Code section 446(1)(f).

(18) This is similar to the current provision but the current provision is limited to the activity referred to in paragraph (h). See Criminal Code section 446(1)(g).

(19) This is similar to the current provision which is limited to domesticated animals or birds or an animal or bird that is in captivity. See Criminal Code section 446(1)(c).

(20) This is similar to the current offence which applied when done "by wilful neglect". See Criminal Code section 446(1)(b). Section 446(3) states that "evidence that a person failed to exercise reasonable care or supervision of an animal or a bird thereby causing it pain, suffering, damage or injury is, in the absence of any evidence to the contrary, proof that the pain, suffering, damage or injury was caused or was permitted to be caused …by wilful neglect..."

(21) For example, section 182.1(2)(a) refers to the words "failure to exercise reasonable care or supervision" and section 182.1(2)(b) refers to the word "negligently." It is clear that a lower standard of means rea would be required for these offences.

(24) This defence applies when the accused can show an honest belief in a state of facts which, if they existed, would constitute a legal justification or excuse.

(28) An exception being Criminal Code section 444, dealing with injuring and endangering cattle.

(30) There would still be a maximum fine of $2,000 when section 787 of the Criminal Code applied.

(36) "Justice Minister Introduces Strengthened Criminal Code Provisions on Cruelty to Animals and Police Officer Safety," (1 December 1999), p. 2.

(38) "Justice Minister Introduces Strengthened Criminal Code Provisions on Cruelty to Animals and Police Officer Safety," (1 December 1999).

(40) Press Release, Humane Societies Applaud Criminal Code Changes," Canadian Federation of Humane Societies, 1 December 1999. This document can be found at
http://www.cfhs.ca/GeneralInfo/Media/media1.htm.

(42) For an example of concerns that were raised with respect to the application of this legislation, see "Animal Cruelty Law Opens Legal Can of Worms," Ottawa Citizen, Friday 24 March 2000, at p. A6.

(43) Law Reform Commission of Canada, Report 31, "Recodifying Criminal Law, 1987," p. 98.