The Hon. the Speaker: Honourable senators, when shall this bill be read the third time?

(On motion of Senator Klyne, bill referred to the Standing Senate Committee on Legal and Constitutional Affairs, on division.)

[English]

An Hon. Senator: On division.

(Motion agreed to and bill read second time, on division.)

[Translation]

Some Hon. Senators: Agreed.

The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Question.

The Hon. the Speaker pro tempore: Are honourable senators ready for the question?

Some Hon. Senators: Hear, hear.

Hon. Donald Neil Plett (Leader of the Opposition): Honourable senators, this bill has not been debated much at all. It was an entirely different bill that was debated — one which was withdrawn. We are, in fact, at the genesis of debating this bill.

Colleagues, I rise today to speak to 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 bill amends two pieces of legislation in order to prohibit the captivity, breeding and trade of live elephants and great apes, except in limited circumstances.

Colleagues, as noted by Senator Klyne in his second reading speech, “. . . Bill S-15 is essentially a piece of Bill S-241 . . .” It is a piece of it. My opposition to Bill S-241 was no secret. It was a horrible bill. It was frivolous and served absolutely no value to our country. He has withdrawn it.

I am pleased to see that the majority of the problematic proposals contained in that legislation have not been included in this bill, obviously because the government also realized they were problematic. Bill S-241 was withdrawn following, and because of, my point of order.

Nonetheless, I continue to have a number of concerns about this legislation that need to be examined at committee. Senator Carignan did an excellent job of pointing out the ridiculousness of us dealing with this. I will reiterate some of those concerns.

Before I delve into what needs to be examined, I want to reiterate that I wholeheartedly support addressing the lack of protection for animals held in captivity, not animals held in human care.

In fact, I completely concur with the statement made by Senator Gold in his second reading speech on this bill. He said:

Provinces and territories have primary responsibility for protecting animal welfare, and the federal government recognizes the significant role that many provinces play in regulating animals in captivity. It has been well-documented, however, that differences exist across jurisdictions, and that these differences may result in gaps in the protection of wild animals in captivity in Canada. . . .

Those are Senator Gold’s words.

I was also pleased to hear that — as I recommended in my second reading speech — the government is going to take a consultative approach in addressing that problem, as stated by Senator Gold:

. . . the Government of Canada has committed to engaging with provinces, territories and stakeholders to discuss the potential value of a national approach to protecting animal welfare and public safety in relation to captive wildlife and to build on existing federal and provincial roles and best practices.

Bringing together partners and stakeholders to advance discussions on issues like roadside zoos or dangerous wild animals being kept by private individuals will lead to improved outcomes for captive wildlife. The scope and focus of the national engagement will be determined following initial consultations with the provinces and territories.

This is precisely the approach that should be taken with respect to this issue.

However, I am somewhat perplexed, colleagues, that we find ourselves with this legislation before us today when those consultations have not yet taken place. As we have seen over and over again, this is typical of this government. They talk a big game.

Second, colleagues, aside from ticking a box on the minister’s mandate letter, I fail to see what Bill S-15 accomplishes. Let me take a few moments to explain.

The government’s briefing materials on Bill S-15 begin with this statement:

The Minister of the Environment and Climate Change’s mandate letter includes a commitment to introduce legislation to protect animals in captivity.

This, colleagues, is the government’s rationale behind this legislation, which basically means that this is the metric we must use to evaluate it.

Will the bill help to protect animals in captivity? As I said earlier, Bill S-15 prohibits the captivity and trade of two species — great apes and elephants — except in limited circumstances. It establishes three offences in order to achieve this.

It will be a criminal offence to: one, possess an elephant or great ape that is kept in captivity; two, breed or impregnate a captive elephant or great ape; and three, fail to take reasonable measures to protect natural breeding of an elephant or great ape kept in captivity.

This bill also creates an offence with respect to using great apes or elephants for entertainment in a performance.

At first glance, you might agree with these measures. I know that some Canadians do because my inbox, and I’m sure yours, has been cluttered with emails about this bill. The only problem is that the concerns expressed by the writers are based on inaccurate information. Allow me to explain, beginning with a look at great apes.

As Senator Klyne said:

Approximately 30 great apes live in Canada at four locations, with chimpanzees at Fauna Sanctuary near Montreal, gorillas and orangutans at the Toronto Zoo, and gorillas at the Calgary Zoo and Zoo de Granby . . .

He continued by saying:

. . . I commend these organizations for their excellent work and commitment to the well-being of the great apes in their care.

Colleagues, this begs the question: Where are the great apes that need to be protected in Canada? Senator Klyne himself says all the ones that are in captivity are well taken care of. Every single great ape in the country is already held in an accredited facility approved by both Senator Klyne and Jane Goodall herself.

Furthermore, colleagues, in addition to the top-notch facilities which hold great apes in Canada, it is already forbidden under federal law to import a great ape without the express approval of the federal government. You simply cannot do it today.

To understand this, we need to talk about the Convention on International Trade in Endangered Species of Wild Fauna and Flora, or CITES. It is an international agreement between governments which aims to ensure that the international trade of specimens of wild animals and plants does not threaten their survival.

CITES was drafted after a meeting of members of the International Union for Conservation of Nature in 1963 and officially came into force internationally on July 1, 1975. Canada had already ratified the treaty on April 10 of that year, with it coming into force on July 9.

The convention classifies plants and animals according to three appendices, based on the degree of protection that they need.

Appendix I is the strongest protection. It includes species threatened with extinction. Trade in specimens of these species is permitted only in exceptional circumstances.

Appendix II includes species not necessarily threatened with extinction but in which trade must be controlled to avoid utilization incompatible with their survival.

Appendix III contains species that are protected in at least one country, which has asked other CITES parties for assistance in controlling the trade.

Colleagues, here’s why this is significant and relevant to Bill S-15. All species of great apes — including gorillas, chimpanzees, orangutans, bonobos and gibbons — were listed under Appendix I of CITES on January 7, 1975. That’s almost 50 years ago. As with every species listed under Appendix I, “Trade in specimens of these species is permitted only in exceptional circumstances” and never without the express approval of the federal government.

I realize that Senator Gold said in his speech that “Bill S-15 . . . would strengthen the protections afforded to elephants and great apes in federal law.”

Colleagues, this is simply not true. Under the act, the minister already has complete latitude to deny a permit, as subsection 10(1) allows the minister to grant or deny the permit “. . . on such terms and conditions as the Minister thinks fit . . . .”

In other words, there is currently no obligation on the minister to grant a permit to import great apes under any circumstances. This means that if Bill S-15 were to become law tomorrow, it would do nothing to enhance protection for the great apes which are currently held in Canada, and it would add nothing to the existing prohibition preventing the importation of great apes into Canada.

This, colleagues, is a textbook example of virtue signalling: Create the appearance that you are doing something important, while actually achieving nothing. We clearly remember just a few months ago dealing with Bill C-21. It is exactly the same thing.

Every great ape in Canada today is in excellent care, according to both Senator Klyne and Jane Goodall, and not a single additional one can be imported without the express approval of the federal government. As far as great apes go, Bill S-15 does nothing to fulfill the commitment in the environment minister’s mandate letter to introduce legislation to protect animals in captivity.

What about elephants? Senator Klyne told us that 23 captive elephants live in Canada. He went on to say:

African Lion Safari near Hamilton holds 17 Asian elephants, the largest group in North America, with at least two born in the wild. The Edmonton Valley Zoo is home to a lone Asian elephant named Lucy, born in the wild. In Quebec, Parc Safari has two African elephants, both born in the wild. Zoo de Granby has three African elephants, of which two were born in the wild. . . .

All of these numbers and locations were correct, but then Senator Klyne concluded this thought by saying:

Obviously, removing elephants from Africa and Asia for display in North American zoos is counter to elephant conservation.

Colleagues, there is a problem with that statement. While seven of Canada’s elephants were born in the wild, not one of them was obtained from the wild by their current owners — none. Not a single elephant in human care in Canada was removed from Africa or Asia in order to be held in one of our Canadian zoos.

Not only has this not happened, colleagues; it cannot happen under today’s existing laws. That’s because Asian elephants have been listed under Appendix I of CITES since 1975, and most African elephants were moved to Appendix I of CITES in 1989.

Only elephants from Botswana, Namibia, South Africa and Zimbabwe currently maintain a listing under Appendix II. But even then, if you want to import an elephant to Canada, you would need permission from both the country of origin and the Canadian government, and you can be certain, colleagues, this is not going to happen.

There is not a single elephant in human care in Canada which was taken from the wild in order to be placed in a Canadian zoo, and, as with great apes, it is impossible to do so today without the express permission of the government.

Colleagues, when it comes to elephants, the Edmonton Valley Zoo has a long-standing commitment that after Lucy passes away, they will not be acquiring more elephants. Zoo de Granby is also on the record that they, too, are phasing out the keeping of elephants. Parc Safari does not breed their elephants and has no plans to acquire new ones.

This means the only zoological institution in Canada whose operations would be impacted by this legislation would be African Lion Safari. African Lion Safari is located near Hamilton, Ontario. If you haven’t been there, you should go. Trish Gerth, the General Manager, has extended open invitations to all senators. She is here in our chamber today. I’m sure she would welcome your visits with open arms.

It will open your eyes. It’s amazing how many people in this chamber know all there is to know about elephants and have never visited one. They have never visited a zoo, but they are the experts. It will open your eyes to the truth about elephants in captivity like no speech can.

However, if you do go, be sure also to tell Senator Klyne about your experience because he, as the sponsor of this bill, has never bothered to take that short visit, and his misunderstandings about elephants are clear evidence of that.

Why would somebody want to sponsor a piece of legislation and not study the impact and the actual reason for this bill? He has never been there.

African Lion Safari is not a typical zoo, colleagues. It has an area of over 750 acres, 250 acres of which provide animals with large areas of bush, grasslands or forest in which they can interact naturally with other animals. Their herd of 19 Asian elephants, colleagues, has over 200 acres where they can freely roam.

I was there a few months ago. I watched these elephants play in the bush. I watched these elephants pick apples off of trees. They weren’t being punished. They were having a great time. I didn’t see any hooks around, by the way.

The park welcomes over half a million visitors every year during the six-month period that they are open to the public. They have 50 full-time staff and hire 400 seasonal staff. They have over 1,000 animals representing over 100 species, and one third of their animals are endangered species.

The park has been successful in breeding 30 species that are considered endangered and 20 species that are considered threatened. It is renowned for its research and conservation efforts, including giraffes, Asian elephants, blue-throated macaws, Eastern loggerhead shrikes, barn owls, bald eagles and rhinos. Moreover, African Lion Safari and other zoos like it play a crucial role in the successive generations of young Canadian zoologists and conservationists by making learning about these animals more accessible in this vast country of ours. African Lion Safari’s operations play a key role in instilling a sense of wonder and purpose in Canada’s next generation of animal scientists, which has intrinsic conversation value.

In conducting their research, they have collaborated with prestigious universities, such as McGill University, Queen’s University, Cornell University, Tokyo University of Agriculture and Technology, University of Florida, University of Guelph, University of Melbourne, University of Pretoria and many more. They take their role seriously.

Yet in spite of this impressive track record, neither the drafters of Bill S-15 or Bill S-241 have bothered to take the time to visit African Lion Safari or consult with its managers. Consequently, when it comes to elephants, they keep repeating a long list of misinformation.

Let’s begin with whether or not elephants should be kept in captivity. Bear in mind that we are not talking about whether elephants should be taken from the wild and placed in captivity. That is already a thing of the past in Canada. We are talking about whether the ones which are currently held in human care are suffering and whether they should be prevented from breeding solely because they are in human care.

In his speech, Senator Klyne made the following statement:

A grandfathered phase-out is recommended by scientists and other independent experts due to elephants’ serious health, behavioural and reproductive problems in captivity. . . .

Again, bear in mind, he has never been there.

I assume the scientists and independent experts that Senator Klyne refers to are those in the letters he provided on this issue who concluded that:

Elephants are not suited to any form of captivity, as no captive facility can fulfil the basic biological, social, spatial, cognitive and intrinsic requirements of elephants. . . .

Colleagues, there is an abundance of scientific evidence that says the exact opposite. In fact, according to other experts, “The idea that elephants are not or cannot thrive in zoos is an outdated and biased perspective.” They note that, on the contrary, “Captive populations of elephants have become vital to the survival of the species.”

In response to the letter referenced by Senator Klyne, these experts state:

Regrettably, most, if not all, of the claims made in the . . . letter are intentionally misleading and lack sufficient, current scientific support.

Colleagues, this is not merely their viewpoint. It is the conclusion drawn from study after study on this question, many of which are referenced in their letter which was provided to every senator on November 27 of last year.

Although I have unlimited time, I will not go through the rebuttal letter in its entirety, but I encourage you to do so carefully with an open mind. If you do, you will find that the facts speak for themselves and convincingly refute the arguments made in Senator Klyne’s letter.

However, allow me to read a few excerpts:

First, zoos participate in conservation actively by managing populations for ex situ reproduction and contributing support to field-based recovery programs.

Second, the International Union for Conservation of Nature Species Survival Commission, or IUCN-SSC, Asian Elephant Specialist Group openly addresses the importance of ex situ management of Asian elephants, as it represents almost one third of the Asian elephant population.

Third, in their October 2023 position statement, the IUCN-SSC emphasizes the importance of zoos, botanical gardens and aquariums. Zoos allow people who would otherwise never encounter elephants to be able to see them in person. They support research on a variety of elephant-specific projects that benefit the welfare of both in situ and ex situ populations, and they create security for the future of wild elephants.

Colleagues, in case you are not aware, the IUCN-SSC stands for the IUCN’s Species Survival Commission. It is the world’s leading authority on the conservation status of biological species. It was the organization I mentioned earlier which played a critical role in the development of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, or CITES, and continues to play a critical role in providing scientific advice and guidance on biodiversity conservation, particularly the assessment and monitoring of species’ risk of extinction.

This past October, the IUCN-SSC released a position statement supporting the value of zoos in the fight for species conservation. I was pleased to hear Senator Gold note this fact in his speech when he said:

The Species Survival Commission of the International Union for Conservation of Nature recently published a report supporting the role of botanical gardens, aquariums and zoos in species conservation. Likewise, scientific research may be vital to our understanding of these animals and assist us in ensuring their survival in the wild. Finally, in some cases, the captivity may be in the best interests of the elephant’s or great ape’s welfare itself.

Senator Klyne has repeatedly made it clear that he believes there is no conservation benefit when elephants are in human care. But this position is in direct conflict with the best authorities in this field and even contradicts the position of the government.

In his second reading speech, Senator Klyne attempted to paint a picture that suggests elephants in Canadian zoos are suffering. He made the following statement:

. . . In North American zoos, elephant deaths outpace births at a rate of two to one, meaning their captivity does not have conservation value. . . .

He went on to talk about stillbirths, reproductive disorders, infant mortality, calf rejection and infanticide.

Colleagues, the numbers used by Senator Klyne were from a 2012 article in The Seattle Times. The Seattle Times looked at 50 years of elephant ownership by zoos, tallied up births and deaths and came up with their two-to-one ratio. The ratio is accurate, but the picture it presents is not.

For starters, while Senator Klyne said the ratio represented zoos in North America, it does not. That ratio only applies to zoos in the United States, not North America — misinformation. Canada’s experience is quite different, and I will show you shortly.

Secondly, the ratio which shows that more elephants are dying than are being born is skewed because of the demographic of elephants in captivity in the United States. To put it bluntly, the majority of the elephants are old. Old people die; old elephants die.

This is because between 1960 and 1975, 520 Asian elephants were imported from the wild into Canada and the United States. Whereas from 1976 to 1999, there were only 24. Keep this in mind: 520 to 24.

The result is an elephant demographic heavily weighted with older elephants, which drives up the proportion of deaths to births. The statistic gives you a false impression of the reality of elephant care in Canada.

Third, the statistic is sharply skewed because it does not reflect the fact that the overall welfare and birth rate of elephants in zoos have significantly increased over time. It digs back into what was a very different time for elephants in captivity, and zoos in general. The accredited zoos of today are nothing like those that were around 30, 40 or 50 years ago. The improvements to animal welfare and the contributions being made by zoos to the conservation of species are significant, as admitted by Senator Klyne when he noted:

. . . captive breeding has played a role in over half of the cases where extinction has been prevented for birds and mammals.

African Lion Safari is one of those institutions that has made significant contributions to conservation, including that of Asian elephants. Since 1991, African Lion Safari’s elephant herd has had 27 live births. They have had no instances of infanticide and no stillbirths. Just this year, they welcomed two new baby elephants, who are healthy and thriving. Not only is their track record impressive, it is the best in North America. As noted by more than a dozen elephant experts, this track record:

 . . . indicates that these elephants are thriving in their environment and that African Lion Safari provides optimal conditions for their reproduction and overall well-being. Out of the 17 elephants currently in the herd, 14 were born at African Lion Safari, and the herd has had births of elephants to both the second and third generations.

The grim picture that Senator Klyne has painted regarding the welfare of elephants in Canada is simply not true.

Senator Klyne went on to say:

Other considerations include the fact that all Canadian zoos with elephants have individuals taken from the wild; the need to keep these huge, wide-ranging creatures indoors for much of the Canadian winter; the ongoing risk of cruel separations of mother-daughter pairs in commercial transactions; the use of bullhooks in Canada, which are implements used to control elephants through pain and fear; and the use of elephants in recent years in Canada for rides and performances for entertainment.

I would like to address these points one at a time, starting with the assertion that all Canadian zoos with elephants have individuals taken from the wild. Since we covered this point already, I won’t go over it again other than to quote from the letter provided by the elephant experts to all senators:

The claim that elephants are still being obtained from wild populations in order to populate zoo displays is not factual. Wild imports of elephants to western zoological facilities are all but prohibited. Additionally, these captures are typically initiated by governments in those countries, and occur as a result of human-elephant conflict and habitat destruction. There are strict rules in place when an animal is being moved from the wild into a captive population.

Colleagues, the second fallacy is the assertion that elephants must be kept indoors for much of the Canadian winter. If you talk to those who work with the elephants at African Lion Safari — or if you visit them — you will discover that the elephants in their care love the four seasons. This is partly because most of their herd of Asian elephants were born and raised in Canada, and they are very acclimatized to our winters. In fact, their elephants actually prefer the cold to the heat, partly because there are no bugs. They also love to run and play in the snow and break the ice on the lake and go swimming. Many of us saw the video that African Lion Safari sent out to all senators. If you don’t have it and you would like to see it, I’m happy to make it available for you.

They have a heated enclosure in the winter where they can come and go at will, and they do not hesitate to venture outside to enjoy the winter. These are all things that Senator Klyne and Senator Gold would have known if they had visited African Lion Safari.

I’ve been to their indoor facility. I may be exaggerating when I say it’s the size of this chamber, but not a whole lot. It is a huge facility, and they can come and go as they choose. Elephant experts tell us this:

The claims that elephants do not do well in cool or cold conditions have been repeatedly disproven. There have been no instances recorded in scientific literature that state that elephants have had hypothermia. To the contrary, the real concern is their vulnerability to overheating. As elephants are such large animals, they have a low surface area to volume ratio, as well as thick skin and an inability to sweat, which makes it very difficult for them to cool down in excessive heat.

Colleagues, you should also be aware that the best peer-reviewed research in the world on how elephants cope in cold weather has come out of the work done by none other than African Lion Safari.

Third, the claim that elephants in Canada are being abused by the use of bullhooks is also outdated and not representative of current practices. African Lion Safari does not use bullhooks. They use a tool known as a guide to provide directional cues. This guide is used without exerting any force.

The fourth claim is that elephants have been used in recent years in Canada for rides and performances for entertainment. Once again, while this did happen at one time, there is not a single zoo in Canada that offers elephant rides, and there has not been for some time. The suggestion that Bill S-15 will stop elephant rides is not accurate; there are no elephant rides to stop. If you want an elephant ride, go visit the ones in Asia and Africa. They use them there for work. They put a whole lot heavier stuff on their backs and necks than the grandchildren who used to ride the elephants in Canada.

Finally, in his speech on Bill S-241, Senator Klyne brought up the 2019 incident at African Lion Safari in which an elephant injured a trainer. As I noted in my speech back then on Bill S-241, there was a 2019 isolated incident at African Lion Safari with an elephant, but a thorough investigation of the incident was completed by the Ontario Ministry of Labour, and African Lion Safari was never charged or found guilty of any kind of misconduct or animal abuse.

Regrettably, such incidents can and sometimes do happen at even the best zoological facilities — with all animals. For example, in 2013, a zookeeper at the Calgary Zoo — an institution that Senator Klyne says is a great institution and should house great apes — was injured after being attacked by a gorilla inside its enclosure. This followed a number of other gorilla incidents at the Calgary Zoo, where, thankfully, nobody was injured. But this one time, the handler was injured. Senator Klyne did not mention those repeated incidents at the Calgary Zoo, but only the one at African Lion Safari.

I wonder why.

He uses this one incident as a defence for his argument that nobody in Canada should hold elephants in human care, but, for some reason, the same standard is not applied to those with great apes.

Colleagues, when it comes to animal welfare, the Minister of Environment and Climate Change’s mandate letter said he was to do two things: The first was to work with partners to curb illegal wildlife trade and end elephant and rhinoceros tusk trade in Canada. It hasn’t happened in years. The second was to introduce legislation to protect animals in captivity. This legislation does neither of those things.

This bill amends two pieces of legislation in order to supposedly prohibit the captivity and trade of live elephants and great apes, except in limited circumstances. In reality, it does nothing for great apes and limits the captivity and trade of live elephants in only one circumstance — African Lion Safari, where the elephants are flourishing and contributing to the pool of knowledge essential to the conservation of elephant populations in the wild.

Colleagues, Bill S-241 was trying to address a real problem in a way that would have been extremely counterproductive. Bill S-15, on the other hand, doesn’t even pretend to address a problem.

In fact, I struggle to understand why Senator Klyne would characterize this bill as a “ . . . great day for animal welfare in Canada” and “ . . . one of the strongest animal welfare bills in Parliament’s history” when it does absolutely nothing for animal welfare.

What he describes as promoting animal welfare is closer to inducing animal cruelty by preventing the elephant herd at African Lion Safari from continuing to procreate and welcome new members into their family. Instead, the legislation would subject the herd to a future of mourning. We have heard so often — and earlier today from Senator Petitclerc — that these are social animals and smart animals. Yet, we want to subject them to a future of mourning as they slowly say goodbye to their family members who will pass away, one by one, over the next 50 to 60 years until the final elephant is left to grieve and die alone. That is what this bill would do.

Senator Klyne said himself that:

Elephants and great apes are self-aware, highly intelligent, emotional and social. They love their friends and families, mourn their dead and use tools. . . . In many ways, these remarkable creatures are very much like us.

Yet, he wants to subject them to slowing dying off by themselves.

I understand the desire to prevent new captivity of elephants and great apes taken from the wild. But this bill does not do that. Those measures are already in place.

Animal welfare is not a partisan issue, and it is not a political issue. It is supported by every political party and by Canadians from coast to coast to coast. But it must be done right.

The government has committed to a national engagement on the issue of closing the gaps in the protection of animals in captivity, and it is my view that the best course of action is to ensure that this consultation is completed before any legislation is implemented. This will ensure that the legislation receives broad support and that animals receive the protection they deserve.

Colleagues, I have always said that I support legislation going to committee. I would be inconsistent and hypocritical if I tried to stop this from going to committee. On division, I will support this bill going to committee for further study. But I will ask that committee members examine these issues carefully. I look forward to the committee’s report back to this chamber. Thank you, colleagues.

Hon. Chantal Petitclerc: Honourable senators, I rise again today in the interest of animal welfare and protection, this time in support of Bill S-15.

As you can imagine, my speech will be quite unlike Senator Carignan’s.

My interest in advocating for animal welfare predates my Senate appointment by a long time. That interest became a priority for me thanks to many of my honourable colleagues, including Senator Moore, whose Bill S-203 ended the captivity of whales and dolphins; Senator Stewart Olsen, who worked to ban cosmetics testing on animals in Canada; and, of course, Senator Sinclair, whose Bill S-218 made us even more aware of and informed about the reality of elephants and large mammals.

[English]

Senator Klyne, I thank you for keeping this project alive by introducing Bill S-241, and for currently sponsoring this bill.

One great strength of this place, I believe, is that it allows us to access a large dose of wisdom which, once combined with reliable and verified data, can lead us to change. My sensitivity to this issue has also been sharpened through my role as a parent.

I’ve said it in other speeches, and I want to insist and repeat the following: My son and young people of his age impress me with their relationship with animals and nature — which is not one of domination, but one of respect and inclusion. They grow up with the awareness of being part of nature, which they already know to be very fragile. This fills me with both a sense of hope and a great responsibility not to let them down.

Every time we have a bill before us that aims to ensure animal welfare and to protect nature, I can’t help thinking that we’re also doing it for our children and the world in which we want them to grow up.

[Translation]

We need to recognize that animal welfare in Canada involves a number of players and different approaches by different levels of government. The measures proposed in Bill S-15 will become part of an animal protection ecosystem in which the provinces and territories each already have their own laws and regulations, because animal protection is largely within their jurisdiction.

In addition to provincial and territorial laws governing specific aspects of animal welfare and specific species, the Criminal Code protects animals from cruelty and neglect. Many other federal mechanisms have also been put in place to reinforce animal protection across the country. Alongside these legal and regulatory provisions, we have accrediting bodies that issue animal care and treatment certifications.

Of course, we mustn’t forget the animal rights organizations that are doing a great job of helping to enforce laws and raise awareness about the importance of animal life.

[English]

It’s in this ecosystem where the measures set out in Bill S-15 fit in.

I will not revisit the fact that elephants and great apes are very intelligent and sentient animals, and that they need an environment that respects their natural behaviour and needs — and that they do not belong in captivity. Over the last few years, we have heard a great amount of compelling scientific data and literature. Let’s see what the bill intends to do.

[Translation]

By adding a new offence to the Criminal Code, the government aims to prohibit the possession, breeding or impregnation of elephants and great apes in captivity. Owners of these animals would also be responsible for preventing their natural reproduction in captivity. In addition, a new offence would prohibit the use of captive elephants and great apes for entertainment purposes, with a maximum fine of $200,000. The other amendment concerns the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act. This act, once amended, would prohibit the importation of elephants and great apes into Canada or their exportation from Canada.

[English]

There are, however, several exceptions to all these prohibitions. For example, an exception may be granted if it’s in the best interests of the animal, or for conservation or scientific programs authorized by the federal or provincial government. Since it’s not a total ban, it will be vital to ensure that these safeguards are strong and rigid when those exceptions are made. The criteria must be rigorous and based on facts, because clearly this is where everything will play out.

In this regard, I’m reassured that the Minister of Environment and Climate Change, the Honourable Steven Guilbeault, has stated:

New elephant or great ape captivity in Canada should require meeting a very high bar, in terms of value for the best interests of the animal’s welfare, conservation, or science, based on the evidence and weighing the alternatives. . . .

When announcing the tabling of this bill, Minister Guilbeault also said that he was open to discuss “. . . with senators about potential amendments to this Bill.” His openness to improving this bill leads me to address the limited scope of Bill S-15 compared to what has already been proposed to us in Bill S-241.

[Translation]

In response to the point of order on Bill S-241, Senators Gold, Dalphond and Klyne clearly outlined the differences between the two bills. Personally, I had no issue with the inclusive intention of Bill S-241, which aimed to protect, in addition to elephants and great apes, close to 800 other wild animal species in captivity, thereby extending new legal protections to them as well. I also supported the mechanism that would have allowed for the removal or addition of certain protective measures by order-in-council, based on factors relating to the well-being of the animals in captivity, something that Bill S-15 does not do.

You may recall the tragic events that occurred in New Brunswick back in 2013, when two boys were killed by a python. This tragedy prompted Senator Klyne to include protections in his bill for all venomous reptiles and dangerous reptiles, including crocodiles, alligators and 12 anaconda, python and boa constrictor species. These measures, created for public safety reasons, were left out of Bill S-15.

[English]

Senator Klyne has pointed out that Bill S-15 does not prohibit the possession, import and export of reproductive material from elephants and great apes. He informs us that this omission could have concrete effects on the possible use of this material for the artificial insemination of Asian elephants.

He also informed us that, unlike Bill S-241, Bill S-15 does not provide an exception for assisting distressed species without a permit. These are all valid observations, and I have no doubt that they will benefit from further study in committee.

Bill S-241 was certainly complex, but covered more animal species. Bill S-15 is basically an initiative that could phase out elephants and great apes in captivity over the years.

[Translation]

During the 2021 election campaign, the parties included measures to protect animals in their platforms. Senator Gold reminded us of this:

Wild animals in captivity remain a growing concern for Canadians and for many people around the world.

Many zoos, sanctuaries and parks, here and elsewhere, have themselves chosen to take action to ensure greater respect for the natural environments of the animals they keep in captivity.

[English]

In 2011, Toronto City Council voted to send the Toronto Zoo’s three remaining African elephants to a sanctuary in California.

[Translation]

The Granby Zoo has already taken the initiative to not bring in any more elephants in the future. That is where we are at. When it comes to animal welfare, it’s clear that what was practised and accepted just a few decades ago no longer is.

We need to imagine a line between what is acceptable and what is not acceptable or no longer acceptable. This line is not fixed in time. It moves. What seemed perfectly acceptable to us when we were children are all things of the past, such as animals in small, unsuitable cages, with no stimuli, circus performances where you could hear the sound of whips between acrobatic tricks, or the possibility of riding an elephant while it was being disciplined with a bullhook used by trainers to control the animal. It’s normal for our practices to change as we learn and become more aware.

[English]

And so, this line separating what is acceptable from what is not is moving. We can assume that this line will continue to shift, and that what seems right today may no longer be right in a few decades.

Our laws must be in harmony with the information and scientific data we have today, as well as our level of social acceptance.

[Translation]

World Animal Protection, a non-profit organization dedicated to protecting animals whose Canadian head office is in Toronto, said the following:

While this bill only addresses protections for elephants and great apes, it is still a very important step forward. If passed, Canada would be the first country in the world to enact such laws at a national level.

I support that statement.

[English]

Could this bill have gone further? Certainly. That being said, Bill S-15 doesn’t claim to solve everything. It is targeted and, through the specific objectives it has, can make a difference.

In truth, colleagues, this legislation is important and, in my view, includes the bare minimum that needs to be done. It is past time to do it. We have debated this issue, bill after bill. I’m sure we all agree that we know more about elephants than we ever thought we would or need to. It’s time to take a position and legislate.

[Translation]

Honourable colleagues, I invite you to support the referral of this bill to committee for further study.

Thank you.

[English]

Hon. Claude Carignan: Honourable senators, I hadn’t planned to participate in this debate until just recently. However, now that I’ve read the bill, listened to the speeches and seen how much pressure has been put on senators to move it forward, I’ve realized that I have to express my thoughts on what is going on here with this piece of legislation. It’s quite clear to me that this bill is the government’s way of making fun of Canadians in general and senators in particular. To be clear, I have nothing against animals, and I like elephants and great apes.

I would like to start by talking about the three main causes of elephant extinction. The first is poaching. Elephants are being slaughtered illegally for their meat and hides, but mostly for their ivory. Every year, poachers kill between 20,000 and 30,000 elephants.

The second is the conversion of forested areas to agricultural use and infrastructure development. Roads, dams, mines and other industrial facilities have fragmented the elephants’ habitat, significantly reducing the animals’ chances of survival.

Finally, as a result of growing human populations and shrinking natural habitats in both Africa and Asia, humans and elephants are increasingly competing for space and food, often with serious consequences. People are losing their crops, their livestock and sometimes even their lives, and animals that are already threatened or endangered are being killed in retaliation or to avoid future conflicts.

Honourable senators, Canada’s Criminal Code is certainly not one of the causes of the drastic decline in elephant populations, nor is it one of the solutions for protecting them. This bill is not about solving a problem that puts the health, safety or financial well-being of Canadians at risk. It is also not about responding to a court decision that imposes a deadline. In theory, it’s about giving legal protection to the 23 elephants and 30 great apes in Canada.

I want to reassure everyone that no human being will suffer, regardless of whether Bill S-15 is passed or not, now or in two years’ time. In theory, only 53 animals would be affected, and I want to stress that this is only in theory, because, as I pointed out earlier, these animals are already protected by a grandfather clause. As far as future importation is concerned, ministerial authorization is required, so, basically, this bill serves absolutely no purpose other than to ease some people’s consciences.

The only zoo that plans to continue keeping or breeding elephants in the future, and therefore the only zoo affected by the legislation, is African Lion Safari, and it will get an exemption under the bill. As a result, the bill does not offer any additional protection and does not improve the welfare of a single great ape or elephant in Canada.

Furthermore, honourable senators, under the existing legislation, no elephant or great ape can be imported into Canada without the minister’s express authorization. None. Also, the minister has the discretion to refuse these kinds of imports or exports for any reason.

Bill S-15 does literally nothing for animal welfare, except to tick a box on the minister’s mandate letter. Colleagues, are we going to join in such a travesty of government action?

I deplore the fact that the government is putting tremendous pressure on the members of the Legal and Constitutional Affairs Committee to begin studying the bill as quickly as possible. Senator Klyne welcomed the fact that Bill S-15 would be studied before any other bill at the committee. Once again, where’s the urgency? I’ll say this again: This bill will in no way affect or improve the life, health or material situation of any Canadians.

Seriously, I see only one explanation for Senator Gold’s stubborness in pushing Bill S-15. This bill, in my opinion, is nothing but a misstep the government is asking the Senate to take because it wants to please a handful of activists and because this government is not showing much legislative competence.

To try to hide from Senators and Canadians that, after eight years, this government is still incapable of steering its legislative ship, the Liberals are inventing emergencies — Quick, we must pass Bill S-15 this week.

Colleagues, the sad thing is that this bill will delay consideration by the Legal and Constitutional Affairs Committee of eight bills that would directly affect the lives of Canadians. These include Bill C-291, which has been stalled in the Senate for more than a year, even though it was passed by a unanimous vote of 323 to 0 at the other place.

Honourable senators, once Bill S-15 has been passed by the Senate, it will join the following bills in the House of Commons: Bills S-6, S-7 and S-9, which were passed by the Senate in June 2022, and Bills S-11, S-13 and S-14, passed by the Senate last December.

Without the slightest regard for the rigorous work of the Senate, all these bills have two characteristics: The government leader has described them as urgent, and they always languish at either first or second reading in the other place, which is distressing and unedifying for the institution we represent.

Perhaps I’m being too cynical. Maybe the government really believes that Bill S-15 meets an urgent need. If that’s the case, I sincerely wonder about this government’s ability to connect with reality.

More than 70% of Canadians agree with the statement that Canada is broken. I think that statement reflects our reality. I don’t understand how the government can make the theoretical protection of 23 elephants and 30 great apes such a legislative priority. How did the Liberals, in a collective failure of imagination, get so out of touch that they think Canada has a serious ape problem?

Honourable senators, our Armed Forces are not adequately equipped. Our soldiers are having to buy their own clothing in Latvia, but this government is putting the comfort of great apes first.

Canada’s international reputation is the worst it has been in over a century. What is the solution? Let’s make Canada a model for elephant protection, to quote Senator Klyne.

China, Russia and other countries act with impunity in Canada to spy on us or influence our political system, but that is no big deal because our zoos will be closely monitored.

Our immigration system is in disarray. Refugees, fake students, temporary workers who become permanent: Anyone can enter Canada, so the first thing we need to do is to tighten the rules on elephant arrivals. That is discouraging.

What is worse, there is a femicide in Canada every other day. Since 2015, violent crime has increased by 39%. The national homicide rate hasn’t been this high in over 30 years. Last year, 874 Canadians were murdered.

Six million Canadians do not have a family doctor. The wait times to see a specialist are at an all-time high. More than 31,000 Canadians died last year waiting for surgery.

However, Canadians can take comfort in the words of Senator Klyne, who said, and I quote:

Elephants are also altruistic. They try to revive sick or dying individuals, including strangers, lifting them with their tusks to get them on their feet.

A new report indicates that the average asking price for rental housing in Canada was $2,193 a month in February, which represents a year-over-year increase of 10.5%. What is the government’s priority? Elephant habitat.

The number of bankruptcies in Canada rose by 41.4% in 2023. Food banks are expecting an 18% increase in demand in 2024, meaning that one million more people will have to rely on their services to survive. The Senate will debate the fate of orangutans. In Toronto alone, there were 2.53 million visits to food banks between April 2022 and March 2023, and one in ten people had to use a food bank.

Rest assured, the government will tighten the screws on the African Lion Safari, but not on Loblaws or Metro.

Canada’s ports, airports and other infrastructure are falling into disrepair, but we’re going to focus on zoos.

The government will be hard-pressed to keep the deficit to $40 billion and it will have to cut services, but fear not, there will be plenty of public servants to manage the 30 great apes.

Anti-Semitic and Islamophobic acts are multiplying. The police are struggling to come up with structured interventions because of the contradictory messages from the Liberal government, but we can be confident that the orders will be clear when it comes to taking action against zoo keepers.

The government has plunged to an all-time low in the polls. Only 3% of Canadians want Justin Trudeau to stay on — that’s 3% — yet he’s found a way to unite Canadians around his vision: a great debate on apes and elephants.

Honourable senators, as I’m sure you know, I could go on like this all afternoon.

With all due respect for its supporters, I consider this bill ineffective and bordering on the absurd. Such minor changes to the Criminal Code should be included in a bill containing several other amendments.

If the Minister of Justice was out of ideas about what changes to make to the Criminal Code, he just needed to let us know. We have a long list of relevant changes addressing problems far more topical, practical and urgent than apes and elephants.

As I said earlier, I don’t know whether the government is using this sham of a bill to pretend it’s doing something and waste the Senate’s time, or whether it is so worn down and disconnected from the reality of Canadians that it actually believes that Bill S-15 could improve the lot of a single one of them.

Regardless of the answer, two conclusions are obvious.

The first is that we need an election as quickly as possible so that Canada can choose a serious government that will know how to make proper use of the Senate. At $130 million a year, the Senate should have other priorities.

The second conclusion is this: The Senate must stand up and vote against Bill S-15 at second reading. We need to show the government that this is a serious institution with no time to waste on a frivolous bill that has no bearing on the reality of Canadians. We must also demonstrate that we prefer to work on finding concrete solutions to real problems that Canadians are facing. That seems like common sense to me.

Thank you.

Hon. Claude Carignan: Would Senator Cormier take a question?

Hon. René Cormier: Honourable senators, I rise today to support 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.

I want to acknowledge that the land on which I am speaking to you today is part of the traditional unceded territory of the Anishinaabe Algonquin nation, a nation that has always had a unique and inspiring relationship with the animal kingdom.

As our former colleague, Senator Murray Sinclair, reminded us, and I quote:

In many Indigenous cultures, we use the phrase, “all my relations” to express the interdependency and interconnectedness of all life forms and our relationship of mutual reliance and shared destiny. When we treat animals well, we act with both self-respect and mutual respect.

4. Over the past few months, like most of you, no doubt, I’ve received numerous emails from Canadian citizens in favor of advancing this legislation.

Here in the Senate, we have debated at length the fundamental principles underlying the question of banning, subject to certain exceptions, the captivity of elephants and great apes, whether through this bill or another.

Essentially, the legislative proposal before us is based on the idea that the captivity of elephants and great apes, particularly for entertainment purposes, is a form of animal cruelty under the Criminal Code, subject to certain legitimate exceptions. By “great apes,” we mean chimpanzees, bonobos, gorillas and orangutans.

Bill S-15 reflects a deep respect for the dignity and physical and psychological well-being of these highly sensitive and intelligent creatures. Based largely on current scientific knowledge, this legislation recognizes that the captivity and breeding of these non-domesticated animal species for purposes such as entertainment constitutes a form of animal cruelty.

The preamble of the bill is clear in that regard, and I quote:

 . . . the science establishes that certain animals, particularly elephants and great apes, should not, because of the cruelty it represents, be kept in captivity;

[English]

In a letter to the bill’s sponsor, Senator Klyne, 23 independent experts asserted that elephants are not suited to any form of captivity, as no captive facility can fulfill their basic biological, social, spatial and cognitive requirements and needs.

They have stated:

As specialists on elephant well-being, we can attest that public display facilities keeping captive elephants are no longer supported or justified by the growing body of science on their sociobiological needs. In these situations, elephants endure conditions that are inadequate to meet their needs, as they lack essential components of wild ecosystems and inhibit expression of natural behaviours.

Studies have also demonstrated the harmful effects of captivity on great apes, particularly on their psychological state.

[Translation]

Colleagues, just like the Ending the Captivity of Whales and Dolphins Act, Bill S-15 reflects the complexity of interactions between humans and certain animals in captivity.

Generally speaking, our relationships with animals are, for the most part, characterized by their function and the intrinsic value we ascribe to them. Consciously or unconsciously, we categorize the animals in our care based on how we use them.

For example, some animals supply food, others are pets, and still others are used for entertainment. Our relationships with and perceptions of them are complex indeed and influenced by many cultural, religious and social factors.

That being said, however we categorize them, we recognize that animals can feel pleasure and pain, and that we therefore have a legal and moral responsibility to minimize their unnecessary suffering.

Thanks to advances in our scientific knowledge, humans’ thinking about animals, particularly great apes and elephants, has evolved. Nowadays, no one can seriously claim that animals are mere automata as conceived by French philosopher René Descartes. Science teaches us that animals have interests and needs and can feel pain if those needs are not fully met.

[English]

Jeremy Bentham, an English philosopher and jurist, eloquently affirmed about animals that:

The question is not, Can they reason? nor, Can they talk? but, Can they suffer? Why should the law refuse its protection to any sensitive being?

It is notably on the basis of this principle that our Criminal Code provides for certain offences designed to remedy animal cruelty, confirming that, in legal terms, we have positive duties toward animals. At present, the Criminal Code provides for offences relating to the unnecessary suffering of animals, as well as those prohibiting the captivity of cetaceans, subject to certain exceptions.

While the provinces and territories may enact their own animal welfare legislation pursuant to section 92(13) of the Constitution Act, 1867, Parliament remains legally able to enact criminal laws that also affect animal welfare.

[Translation]

Bill S-15, which makes it an offence, subject to certain circumstances, to possess great apes and elephants that are kept in captivity, particularly for entertainment purposes, seems to reflect the same criminal law objectives as Bill S-203, which was passed in 2019 and will phase out cetacean captivity.

Both legislative measures criminally prohibit a practice that is considered cruel from a scientific and moral perspective, and they constitute a valid exercise of federal authority with respect to animal cruelty pursuant to subsection 91(27) of the Constitution Act, 1867.

In a letter sent to the Standing Senate Committee on Energy, the Environment and Natural Resources on December 4, law professors asserted that passing Bill S-15 would indeed be a valid exercise of Parliament’s powers to pass criminal laws in this area.

Honourable colleagues, Bill S-15 takes a critical look at our place and our role in relation to intelligent beings with social, cognitive and biological capacities that are similar to ours. Consider the chimpanzee, which shares nearly 98.8% of its DNA with humans.

Canadian jurisprudence recognizes that chimpanzees have the cognitive capacity to solve complex problems. British ethologist and anthropologist Jane Goodall showed through her research that chimpanzees exhibit many cognitive abilities that were previously thought to be unique to humans, including a form of rational thought.

Chimpanzees can feel a wide range of emotions, including happiness, sorrow, tenderness, jealousy, remorse and anger. They are highly complex beings with many abilities.

[English]

As our former colleague senator Murray Sinclair declared within this chamber, with his trademark sense of humour:

Chimpanzees live within complex societies, forming political alliances to achieve their goals — kind of like Parliament. Male chimps even fawn over infants when vying for power — kind of like parliamentarians. When disputes break out, diplomatic individuals will patch things up. Chimps, like humans, can be violent, but they also demonstrate cooperation and altruism, such as delivering food and water to elderly relatives. They have been seen saving others in danger and helping wounded birds. Chimpanzees grieve their dead.

[Translation]

During a Canada-Africa Parliamentary Association mission to Cameroon, I, along with the co-chair, our colleague, the Honourable Amina Gerba, visited Mefou National Park, a rehabilitation centre that is home to 320 primates, including 110 chimpanzees and 21 gorillas. The goal of Ape Action Africa, the organization that manages the park, is to address the immediate threats faced by gorillas and chimpanzees in Africa and to work with communities to develop long-term solutions to ensure their survival in the wild. They are doing amazing work.

During our visit, it was fascinating to observe these primates who are so closely related to us humans. We actually felt more like we were the ones being observed.

One of them looked at me with a particularly insistent gaze. Maybe my physiognomy evoked in him a strong feeling of kinship. Did I remind him of some distant cousin or long-lost brother? I couldn’t tell, but he almost seemed to be inviting me to jump the fence and join him — which I would have happily done, colleagues, considering the beauty of the natural surroundings.

On a more serious note, it was impossible to remain unmoved by their living conditions and by the urgent need to protect these amazing creatures. We need to recognize that, now more than ever, human and animal cohabitation is crucial to our planet’s future.

[English]

In his second reading speech, Senator Klyne also addressed the complex characteristics of the elephant — an altruistic, highly intelligent and emotional being. The way we treat elephants and great apes gives real meaning to the notions of dignity and respect. These animals, with their complex life forms, are not entertainment creatures. They deserve respect and dignity. It is also possible to entertain the public without using these animal species. With shows given since 1984, the famous Cirque du Soleil, a remarkable Quebec company, has enchanted over 33 million spectators without using animals.

I am, therefore, pleased to see that the use of captive elephants and great apes for entertainment purposes is not subject to an exception in this bill.

[Translation]

Colleagues, despite the benefits that could be associated with the captivity of elephants and great apes, including the conservation efforts that Senator Klyne mentioned in his speech, their captivity should always be regarded as an impediment to their individual fulfillment.

Captivity may be a necessary means to a legitimate end, but it must never be considered an end in and of itself for these animals, an underlying principle of Bill S-15. To echo the essence of what our former colleague Senator Wilfred Moore said about Bill S-203, Bill S-15 is a form of “moral condemnation” of the captivity of elephants and great apes, regardless of their actual or potential benefits.

Colleagues, giving a voice to the voiceless in society is a guiding principle for our work in the Senate. Animals are no exception to this quest. I invite all senators to examine this legislation with empathy, respect and imagination for the benefit of such precious beings as great apes and elephants.

I really hope this bill will be studied in committee, so that the scientific and legal arguments surrounding this legislation can be examined more thoroughly.

Thank you.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

(At 10:46 p.m., the Senate was continued until tomorrow at 2 p.m.)

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Pierre J. Dalphond: Honourable senators, with leave of the Senate and notwithstanding rule 5-5(k), I move for Senator Klyne:

That:

1.Bill S-241, An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (great apes, elephants and certain other animals), be discharged from the Standing Senate Committee on Legal and Constitutional Affairs;

2.the studies of the subject matter of the bill be discharged from the Standing Senate Committee on Agriculture and Forestry and the Standing Senate Committee on Energy, the Environment and Natural Resources; and

3.the bill be withdrawn.

The Hon. the Speaker pro tempore: The point of order will be taken under advisement and a ruling will be forthcoming. Thank you.

Hon. Pierre J. Dalphond: In your deliberations on this important issue of what makes a bill identical to another bill, I invite you to read the speech given by the critic of Bill S-241 in June 2023. You’ll see how he describes Bill S-241, how he talks about the accreditation of zoos across the country and how these accreditations will be based on American standards.

None of this can be found in the bill before us. Three quarters of what I just said in this speech would be irrelevant. If the bill is identical, and you allow Bill S-15 to proceed, I’m sure Senator Plett won’t give the same speech, which proves that it’s not the same bill.

I encourage you to read it. It’s getting late, so I won’t quote you long excerpts about zoo accreditation, but none of that applies here. Thank you.

[English]

Hon. Marty Klyne: Honourable senators, I rise to respond to this point of order which proposes to prevent debate, committee study and decision on government Bill S-15. The point of order is highly technical, arguing what is known as the “same question rule,” which prevents proceedings on Bill S-15 due to the prior occurrence of proceedings on Bill S-241, the Jane Goodall act. As senators know, compared to Bill S-15, Bill S-241 is related but is a very different bill. Absurdly referred to three committees by the critic of June of last year — not of my doing — and after extensive second reading debate, the question of time — it was expensive as well, Senator Wells — and resource allocation, particularly with the heavy debate on everything.

The point of order must not succeed for two reasons. First, Bill S-15 is sufficiently different from Bill S-241, from the standpoint of substantial legalities, to avoid application of the same question rule. Second, even if the Speaker concludes that this is an arguable case, the Senate’s procedural presumption must apply that a matter is in order, allowing debate, study and decisions to take place, which has been a defining feature of our procedure and practice in our deliberative chamber.

Senators, what is the same question rule? The rule is discussed on pages 96 and 97 of Senate Procedure in Practice, and is expressed in two rules of the Senate. As Senator Plett mentioned, rule 5 and rule 10-9. Rule 5-12 states:

Except as otherwise provided, a motion shall not be moved if it is the same in substance as any question that has already been adopted or defeated during the same session, unless the decision has been previously rescinded by motion following a notice of five days.

Rule 10-9 states:

When a bill originating in the Senate has been passed or defeated, no new bill with the same object shall originate in the Senate during the same session.

Senate Procedure in Practice states the following about both these rules:

Various Speaker’s rulings have addressed the meaning of these provisions. Although Senate precedents are not conclusive, the same question rule has sometimes been interpreted in a narrow sense. On November 19, 1998, for example, a ruling noted that “[o]ur parliamentary jurisprudence requires that we have identical texts for rule [5-12] to apply.” Another ruling has also noted that even the passage of time may, in some cases, be sufficient to lead to the conclusion that a motion is not “the same in substance.”

A certain level of flexibility therefore exists in the application of the same question rule. This is supported by reference to international practice. In the modern U.K. Parliament, “[w]hether the second motion is substantially the same as the first is finally a matter for the judgment of the Chair.” Even in the early 19th century, John Hatsell, while advocating strict adherence to the same question rule, had recognized “that this rule is not to be so strictly and verbally observed, as to stop the proceedings of the House: It is rather to be kept in substance than in words; and the good sense of the House must decide, upon every question, how far it comes within the meaning of the rule.”

The Australian Senate also has a narrow interpretation of the same question rule:

[It] is seldom applied, because it seldom occurs that a motion is exactly the same as a motion moved previously. A motion moved in a different context, for example, as part of a different “package” of proposals, is not the same motion even if identical in terms to one already moved. Even if the terms of a motion are the same as one previously determined, because of elapse of time it almost invariably has a different effect because of changed circumstances and therefore is not the same motion. There may also be different grounds for moving the same motion again.

Senators, the takeaway from Senate Procedure in Practice — our primary authority — is that the same question rule generally has a very narrow application in the Senate of Canada, requiring that a second question be extremely similar, and even identical to an earlier question, for the rule to apply. This makes sense because our chamber has a fundamental presumption in favour of allowing debate, which I return to in my second reason as to why this is not a valid point of order.

Before exploring rules 5-12 and 10-9 in greater depth, since we require a case-by-case analysis, let’s consider the substantial differences between Bill S-15 and Bill S-241.

Senators, these bills are related but distinct. Moreover, even the measures that are similar regarding elephants and great apes are drafted very differently and contain substantial policy differences with different practical effects. These include:

Bill S-15’s lack of prohibitions on possession, import and export of reproductive materials of elephants and great apes, with practical consequences for the potential use of such materials in the artificial insemination of Asian elephants;

Bill S-15’s lack of prohibition of elephant rides, which are banned by Bill S-241, with practical consequences for the potential continuation of this practice at African Lion Safari in Hamilton, Ontario;

Bill S-15’s lack of potential provincial licensing for performances for entertainment, which differs from Bill S-241 in this regard;

Bill S-15’s offence for breaches of a condition of a permit, which is not contained in Bill S-241;

Bill S-15’s lack of an allowance for assisting applicable species in a situation of distress without a permit, unlike Bill S-241;

The absence in Bill S-15 of any licensing proposals with respect to great apes unlike in Bill S-241, which would grant conservation and science licences to three accredited zoos; and

Even for the measure that does have some overlap on elephants and great apes, very different wording and drafting beyond the substantial legal differences and practical effects I have noted, including in the case of Bill S-241 that these measures integrate many additional wild species by way of a complex scheme for the designation and removal of wild species for protection, which is absent from Bill S-15.

Senators, these are all substantial legal differences with respect to Bill S-15 and Bill S-241 regarding elephants and great apes, which are essentially the sole subject of Bill S-15.

In the bigger picture, there are more and even bigger differences. These include that Bill S-241 is far broader than Bill S-15, covering over 800 additional wild species not found in Bill S-15, including big cats, bears, wolves, sea lions, certain monkeys and dangerous reptiles, as well as a discretionary mechanism to add and remove wild animals or wild species from the bill’s application according to specific factors.

Bill S-241 contains sentencing measures absent from Bill S-15, providing for the relocation of wild animals involved in captivity offences, with costs, in a manner analogous to seizure and disposition of property.

Bill S-241 contains a complex framework for animal care organizations absent from Bill S-15, allowing zoos meeting the high standards and other criteria to breed and import the many wild species contained in Bill S-241, a focus of the debate on that bill. Bill S-241 does not contain a coordinated amendment with Bill S-6, unlike Bill S-15.

At a higher level, Bill S-15 is nine pages long, as we heard from Senator Dalphond, whereas Bill S-241 is 29 pages long. We would know they are very different by weighing them.

All of this is to say, senators, that from a legal and substantial point of view, Bill S-15 and Bill S-241 are very different. I invite the Speaker to reach such a conclusion and decline this point of order, particularly considering we are talking about a rarely invoked rule with a narrow application, even to the point of requiring identical texts, as well as our presumption that a matter is in order. I will return to this point.

First, I wish to highlight additional authorities in support of the conclusion that the same question rule does not apply in this case. The Speaker’s ruling of November 23, 2005, stated:

. . . it should be noted that practice has changed over the years to accommodate the reality of extended sessions that can continue through several years. This has had the consequence of requiring a greater degree of similarity between two items before a bill or other business will be ruled out of order on the basis of the ”same question rule’’.

. . . In a ruling by Speaker Fraser made in 1989 . . . the Speaker explained that for two or more items to be substantially the same ”they must have the same purpose and they have to achieve their same purpose by the same means.’’

In that case, the Speaker found that two bills were sufficiently different based on differential speed of application of an excise tax on clocks.

Certainly, senators, the changes I have outlined above are much greater in their differences than in this case, where the same question rule did not apply. With respect to rule 10-9, the Companion to the Rules of the Senate states:

When pertaining to bills, it is not always clear when the “same question rule” applies, especially when identical clauses are in question.

As I have noted above, we are not dealing with any identical clauses, so this should not be a close case.

Erskine May states:

Objection to a bill related to, but not identical with, another bill being considered by the House of Lords has been overruled.

As we have seen from the above analysis, this is clearly the case with Bill S-15 and Bill S-241 — that they are related, but very far from identical.

A Speaker’s ruling of March 23, 2004, notes that there is tension in the authorities regarding the degree of similarity required between bills for the same question rule to apply. That authority states:

How can we sort out these conflicting provisions and statements? I am not really sure that we can. It may not be possible to square the circle. The role of the Speaker is to ensure that best practices are followed while at the same time protecting the interests of the Senate. This is what the Speaker strives to do through rulings. If, at any time, the Senate disagrees with that judgment, with a decision, any Senator can challenge the ruling and the Senate itself will decide what the outcome will be by either accepting or overturning that ruling. In any case, it might be prudent to follow the advice of Hatsell also cited in the Companion at page 190, which explains that it is “the good sense of the House that must decide, upon every question, how far it comes within the meaning of the [same question] rule.”

The ruling goes on to say:

In the end, the boundaries of the same question rule can only be drawn when the Senate is confronted with a concrete event. . . .

Senators, this passage is an acknowledgement that it is truly up to us as a chamber to determine whether we will prevent debate, evidence and decisions according to sharp interpretations of technical rules.

A Speaker’s ruling of October 29, 2003, confirms that it is not sufficient for even part of a bill to be identical for the same question rule to apply:

Essentially, I am being asked to rule Bill C-41, or a part of it, out of order because it contains a provision, clause 30, that is identical to a third reading amendment to Bill C-25 that was moved and defeated. . . .

. . . There is little doubt that the defeated amendment to Bill C-25 is identical to clause 30. This fact alone does not fully meet the requirements of the same question rule. It is not sufficient in itself to oblige me to rule all or part of Bill C-41 out of order. . . .

. . . The same question rule cannot be used this way. It would be too restrictive and would prevent the Senate from properly carrying out its work. . . .

Senators, we see a theme here that the ability of the Senate to debate, study and decide upon legislation is the pre-eminent concern. This brings me to my final point. Even if the Speaker finds this case to be an arguable one, notwithstanding all the substantial differences between the bills that I have identified, the Senate would still need to follow its presumption that a matter is in order unless this is clearly not the case.

On this point, Senate Procedure in Practice states:

The Senate is often flexible in the application of the various rules and practices governing debates. As stated by Speaker Molgat in a ruling on April 2, 1998:

It is my view that matters are presumed to be in order, except where the contrary is clearly established to be the case. This presumption suggests to me that the best policy for a Speaker is to interpret the rules in favour of debate by Senators, except where the matter to be debated is clearly out of order.

This authority goes on to quote from Speaker’s ruling of February 24, 2009:

. . . several Senate Speakers have expressed a preference for presuming a matter to be in order, unless and until the contrary position is established. This bias in favour of allowing debate, except where a matter is clearly out of order, is fundamental to maintaining the Senate’s role as a chamber of discussion and reflection.

Senators, I could not agree more that the Senate’s ability to debate, study and decide upon bills is fundamental to our procedure, our practices, our constitutional role and our collegial culture. It is our ideal. In considering the point of order, our Speaker and we as a chamber have the opportunity to uphold this ideal and preserve our honoured practices.

This point of order must fail because of the substantial legal differences between Bill S-15 and Bill S-241, which I have outlined in detail. Moreover, this point of order must fail because even if the Speaker concludes that this case is an arguable one, we have a presumption in favour of debate in the Senate of Canada.

In short, this point of order is not valid, and to find it as such would not uphold the practices, procedures and ideals of our august chamber of sober second thought. Thank you. Hiy kitatamihin.

[Translation]

Hon. Marc Gold (Government Representative in the Senate): Thank you, Senator Plett, for raising the point of order. In my respectful view, Your Honour, the two bills are different and, therefore, do not engage either the rules or the principles to which my honourable colleague referred. As has been mentioned on several occasions, Bill S-15 takes a very different legislative approach than Bill S-241 does.

Colleagues, there have been over 80 bills introduced in this chamber that are sponsored by senators since the start of the Forty-fourth Parliament. And there are many good ideas contained in these bills. It would be against our practices to prevent a government bill — that seeks to advance an idea that has been proposed by one of our colleagues — from being properly debated, studied and ultimately voted on in this chamber.

As we know, many senators have introduced bills here with the purpose of encouraging the government to bring forward its own legislation that addresses the important public policy issues that are contained in Senate public bills. For example, Bill C-48, An Act to amend the Criminal Code (bail reform), which received Royal Assent on December 5, 2023, included provisions from Bill S-205, An Act to amend the Criminal Code and to make consequential amendments to another Act (interim release and domestic violence recognizance orders), sponsored by Senator Boisvenu. That has passed the Senate and is now before the House of Commons Standing Committee on the Status of Women.

During the Forty-second Parliament, Bill S-238, sponsored by Senator MacDonald, on the importation and exportation of shark fins, was at the report stage in the other place. The government determined that this merited support, and it was incorporated as part of Bill C-68, which deals with amendments to the Fisheries Act. This amendment essentially copied the exact language from Senator MacDonald’s Bill S-238.

To turn now to the specific procedural question, which is part of what is generally considered the similar question principle, I respectfully submit that Bill S-15 takes a substantially different approach to creating a framework for protecting animals in captivity. Indeed, the government has been working diligently on this for some time now. The Minister of Environment and Climate Change’s mandate letter included a specific commitment to introduce legislation to protect animals in captivity.

As we know, our colleague Senator Plett — in an article published in The Hill Times on October 4, 2023 — expressed his reservations about Bill S-241, and called upon the government to bring forward its own legislation after “. . . proper consultations with zoos, provincial animal welfare authorities, and stakeholders.” I appreciate his comments that he does not take issue with the fact that the government did this.

The Government of Canada closely followed this chamber’s deliberations on Bill S-241. The government has heard some of the concerns that are related to that bill, including from the stakeholder community. As a result, the government responded with a different approach in Bill S-15. Specifically, Bill S-15 addresses the concerns of some senators around the constitutionality of Bill S-241 with respect to the federal government legislating in provincial jurisdiction. Bill S-15 creates a permitting scheme that is delegated to provincial and municipal officials in a manner that reflects the division of powers in our Constitution.

Second, Bill S-15 takes a narrower application of the number of species that are governed under the scheme in order to address the concerns that were addressed by several stakeholders.

This alone, I submit, adequately demonstrates the substantive differences between Bill S-15 as compared to Bill S-241 in terms of the legislative approach that is being taken.

Now, procedurally, the principles to which Senator Plett referred relate to two substantially similar questions being before the chamber at the same time.

A Speaker’s ruling from June 18, 1985, explained that the text of motions must be identical for the same question rule to apply. Referring to rule 5-12, the Speaker ruled that, “Our parliamentary jurisprudence requires that we have in hand identical texts for rule 47 to apply.”

Another Speaker’s ruling from November 19, 1998, further clarified this point when it was decided that the same question rule would be applied because the motion was, “. . . virtually word-for-word identical . . . .”

The precedents clearly shows that a substantially similar question has been defined as accomplishing the same objective in the same manner.

I submit that Bill S-241 and Bill S-15 are not substantially similar, and Bill S-15 should not be found to invoke the rule of anticipation, nor should Bill S-241 be deemed similar — notwithstanding the arguments of Senator Plett — and, indeed, this is a practice that is rarely invoked, as experienced colleagues will know, in the Senate or indeed in the other place. Bill S-15 should clearly be allowed to proceed. A finding otherwise would put a chill on the ability to legislate in this chamber on any matter that is addressed in any of the 80 bills sponsored by senators that are currently before this chamber or in the other place.

As you remind me regularly in Question Period, colleagues, the government does not have a monopoly on all good answers or good ideas. It stands to reason, therefore, that the government should be able to bring forward legislation to address matters sponsored by senators providing that they take a different approach to address the subject matter of a Senate public bill. Any other approach would run counter to our long-standing practice of allowing fulsome debate in this chamber. Therefore, Your Honour, I would submit that Bill S-15 should be allowed to proceed on the Senate Order Paper and that Bill S-241 remain as well. Thank you very much.