Senator Kutcher: Certainly, Your Honour, if that would please the chamber.

Hon. Stan Kutcher: Honourable senators, I rise in support of Bill S-241, the Jane Goodall act. The bill’s goals are to better protect wildlife in captivity, enhance public safety and support conservation. Today, following the debate format popularized by my friend and colleague Senator Cotter, I will address three points.

First, the relationship between federal and provincial jurisdictions with regard to wild animals in captivity; second, the quality of life of captive elephants in Canada; and third, the standards for designating zoos and other animal care organizations under the bill.

Before exploring these points, I acknowledge that the welfare of captive animals is a concern for many Canadians, including senators. Indeed, many of us share our lives with domesticated animals such as dogs and cats. Frankly, I am a dog-loving person, and I am always joyed by the greetings that our goldendoodle Mazie gives me when I return home, whether I have been away for three hours, three days or three weeks. I also note that my friend and colleague Senator Ravalia is an adopted uncle to Mazie, and I enjoy receiving photos of Mak, Senator Wells’ beautiful poodle.

As a young boy, I spent many summers living and working on a farm. Like some farm-raised senators here, I came away from that experience with wonderment about our relationships with those amazing creatures: cows, chickens, horses, pigs and others. However, my memories of shovelling out manure in the pigpens are, I must admit, not amongst the highlights of my childhood.

But wild animals in captivity are, to mix metaphors, a different kettle of fish. The relationship between humans and wild animals in captivity is complex and evolving.

In ancient Egypt and Mesopotamia, rulers and aristocrats kept private collections of wild animals, primarily to demonstrate owners’ power and status. The larger and more exotic the collection, the more powerful the owner. The word “menagerie” captures this reality. And such traditions echo today. Michael Jackson and Pablo Escobar, for example, kept extensive menageries on their estates.

Zoos with animals for public viewing are a more recent development. In the Western world, the first modern zoo opened in Paris in 1793. This was fundamentally a political act. The private menageries of the king and queen and various aristocrats were put on public display at the Ménagerie, the zoo of the Jardin des Plantes, a tangible evidence of Liberté, Egalité, Fraternité. But also a nod to providing entertainment for the populace.

Today’s credible zoos have evolved into settings that promote education, and some have a strong commitment to scientific research and conservation. Enclosures in many cases have been developed to more closely approximate natural habitats. The cramped tiger cage with its perpetually pacing cat and the monkey showing signs of boredom, anxiety and stress are, hopefully, much less common today.

Yet, this evolution has not yet concluded, and as our knowledge about wild animals improves, compassionate people will continue to find better ways to cohabit this planet with other species.

That’s why this bill is important. It’s a significant next step demonstrating Canada’s international leadership in creating a better life for wild animals in captivity. If passed, this bill will create a transparent and accessible legal standard for animal care organizations that meet five criteria: the highest standard of animal care, whistle-blower protection, no use of animals in circus-style shows, responsible acquisition of animals and additional government standards based on expert consultation.

We know from World Animal Protection Canada reports and numerous news stories that we need to do more to protect the well-being of wild animals in captivity, with a sense of urgency. Legislation is necessary to shepherd this work along, and this is why we should move the bill forward to committee as soon as possible.

I’m hopeful that study will commence early in the new year, and I look forward to hearing from Dr. Jane Goodall and other experts, including leading Canadian zoos and animal welfare organizations.

Now, the first of the three topics that I mentioned — the relationship between federal and provincial jurisdiction with regard to wild animals in captivity. This is a matter that Senator Plett has previously and appropriately raised with concern that much legislation relating to animal protection is in the provincial sphere. Others have informed me that there is also federal jurisdiction in this domain.

Now, in addition to our rural boyhoods, I believe Senator Plett and I share the distinction that neither of us is a legal expert. That said, I would like to make some observations on jurisdiction, but please, as I do so, keep in mind that although we physicians can hold a high and perhaps misguided regard for our expertise in various areas of life, such as international finance, foreign affairs, quantum mechanics or how to bake sourdough bread, I venture into this part of my speech with some trepidation. I note also that the committee can hear from experts on legal aspects of the bill.

Bill S-241 proposes animal welfare restrictions on the international and interprovincial transport of live wild animals from affected species by amending the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act. As I understand it, trade across these boundaries is an area of exclusive federal jurisdiction under its trade and commerce power. For an example of animal welfare restrictions in federal trade laws, I refer us to section 23.2 of the Fisheries Act, restricting the import and export of live whales and dolphins, which was enacted in 2019.

Bill S-241 also exercises federal jurisdiction over criminal animal cruelty and public safety under federal criminal power.

Since 2019, section 445.2 of the Criminal Code has contained captivity-related offences with respect to whales and dolphins, prohibiting unlicensed breeding, as well as performance for entertainment purposes. This section protects these creatures’ physical health, psychological well-being and dignity from cruel or degrading treatment.

With this bill, Parliament would expand those captivity offences to provide additional protection for wild species, while allowing licences for justifiable purposes subject to potential conditions. Bill S-241 does not create new criminal offences, but modifies existing ones. Because many of the added species are dangerous, the bill also protects public safety.

Provincial jurisdiction on wild animals in captivity coexists via provinces’ property and civil rights power. Provincial legislation covers negligent treatment and patchwork regional ownership restrictions. However, all captive animals have long been subject to federal criminal animal cruelty restrictions on their treatment. In other words, as I understand it, the subject of captive wild animals is an area of both federal and provincial jurisdiction.

The bill’s preamble states that the subject of captive wild animals has what is known constitutionally as a double aspect of shared jurisdiction. I understand that the bill allows some dual licencing for that reason, following the same legal model as the whale and dolphin laws.

A committee can hear more, but we have not heard any arguments on debate that the federal trade or criminal jurisdiction is invalid. With Bill S-241, the question is not whether Parliament can help protect wild animals in captivity, the question is whether it should. In my opinion, the answer is that it must.

My second issue is the quality of life of captive elephants. Undeniably, the best place for elephants is in the wild or, if in captivity, in large outdoor spaces in a warm climate. They are highly intelligent, socially complex and physically wide-ranging. Elephants frequently experience physical suffering and psychological distress in captivity, exhibiting problems such as abnormal and repetitive behaviours, higher infant mortality and reduced life span.

In fact, according to a 2019 article in The New York Times Magazine, for every elephant born in captivity in North America, two have died. This same article describes the psychiatric disorder seen in captive elephants, one, frankly, I had not known about until I began to research the issue. It’s zoochosis, a form of mental illness that develops in animals held captive in zoos. It often manifests as unnatural, stereotypic behaviours that include rocking or swaying, pacing, self-mutilation and more. The article takes this further, stating:

One of the more disturbing manifestations of zoo-elephant psychosis is the high incidence of stillbirths and reproductive disorders among pregnant mothers. Even when births are successful, there are often instances not only of infant mortality but also of calf rejection and infanticide, something almost never witnessed in thousands of studies of wild elephant herds. . . .

In addition, we need to consider another reality for captive elephants in Canada: our cold weather. All four Canadian locations with elephants keep them indoors in the winter. These conditions are far removed from those that support their innate social, physical and psychological needs. According to the Born Free Foundation, the unnatural size of these enclosures and the conditions within them amplify the adverse psychological and behavioural impacts of captivity, and lead to other health problems including foot ulcers and obesity.

Honourable senators, toxic environments damage the physical and mental health of elephants just as they do for humans. In June, over 20 elephant scientists and other experts, including global leaders in their field, endorsed Bill S-241’s proposed phase-out of elephant captivity in Canada. In a letter sent to senators, they described elephants’ extensive health problems in captivity and the constraints on their needs, including keeping them indoors in the winter and the practice of chaining captive elephants.

Senators have received correspondence from many different organizations regarding the issues of the health and well-being of captive elephants. The committee will need to carefully consider all the evidence while, I trust, prioritizing the health and well‑being of these magnificent creatures.

Now to my third point. The executive director of Canada’s Accredited Zoos and Aquariums, or CAZA, has communicated to senators his desire for members of his organization to be deemed as animal care organizations under Bill S-241. For such a designation, the legislation requires organizations to administer “the highest professionally recognized standards and best practices of animal care” as well as meeting other criteria, such as refraining from performance for entertainment.

I have spoken to Senator Klyne about this issue as well as doing my own research on zoo accreditation. I also note that Senator Plett has recently, and appropriately, raised the issue of zoo accreditation with Senator Dean and Senator Sorensen in this chamber. I have learned that some consultations with stakeholders have indicated that the Canadian members of the Association of Zoos and Aquariums, or AZA, uphold higher standards and practices than those who only hold accreditation from a different organization — CAZA. Others have seen this issue from a different lens.

In my discussions with Senator Klyne, I have learned that he is open to an amendment that would provide for automatic designations of any Canadian zoos meeting AZA standards within the first number of years, as well as an independent review of CAZA standards and practices. Perhaps this is an important issue to be considered by committee.

Whatever the outcome regarding accreditation, this issue requires the in-depth analysis that only committee study can provide.

To conclude, in my view, the Jane Goodall act is a credit to the Senate and to Canada, showing that we can lead the way in protecting wild animals. I add my voice to those of the many colleagues here eager to move to our second reading and committee study of the bill. Thank you. Wela’lioq.

Senator Kutcher: Thank you very much for that important question, Senator Plett.

I understand that the legislation is not focused on closing zoos. You’re absolutely correct about that. You may want to make an amendment to it — thinking about it.

It is, however, focused on the protection of animals held in captivity and ensuring their well-being.

First of all, the bill will phase-out harmful practices. Second, it will encourage responsible relocations of animals. They won’t die in place. There are opportunities for responsible relocations. In my understanding, some zoos have already identified that they would be willing to take these relocations. Therefore, it’s an important consideration, but I think it’s one that zoos have thought about in preparation for this. It’s a good point that you make.

The bill also provides a mechanism of enforcement that will, over time, protect animals. I think that’s a good thing, and I think you would agree with me that’s a good thing as well.