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Bill S-218

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Second Session, Forty-third Parliament,
69 Elizabeth II, 2020
SENATE OF CANADA
BILL S-218
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)
FIRST READING, November 17, 2020
THE HONOURABLE SENATOR Sinclair
4321932


SUMMARY

This enactment amends the Criminal Code to create offences respecting great apes, elephants and certain other non-domesticated animals in captivity. It also amends the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act to require a permit for the import, export or interprovincial travel of great apes, elephants and certain other non-domesticated animals and to prohibit the importation or exportation of elephant ivory, with certain limited exceptions.
Available on the Senate of Canada website at the following address:
www.sencanada.ca/en


TABLE OF PROVISIONS

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)
Preamble
Short Title
1
Jane Goodall Act
Criminal Code
2
Amendments
Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act
6
Amendments
Related Provision
12
Aboriginal and treaty rights
Transitional Provisions
13
Non-application — gestating animals
14
Non-application — offspring of animals
Coming into Force
15
One year after royal assent


2nd Session, 43rd Parliament,
69 Elizabeth II, 2020
SENATE OF CANADA
BILL S-218
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)

Preamble
Whereas the phrase “All My Relations” expresses an Indigenous understanding that all life forms of Creation are interconnected and interdependent;

Whereas science, empathy and justice require us to respect the biological and ecological characteristics and needs of animals;
Whereas cetaceans, great apes, elephants and certain other non-domesticated animals ought not to be kept in captivity, except for justifiable purposes such as their best interests — including individual welfare and conservation — and non-harmful scientific research;
Whereas a ban on trade in elephant ivory and the collection of elephant hunting trophies in Canada will help to conserve elephant populations and encourage bans in other countries;
Whereas Parliament may enact criminal laws and laws to regulate international trade and commerce in relation to animals, and provincial legislatures may enact laws in relation to property and civil rights, including granting legal standing to captive cetaceans, great apes, elephants and certain other non-domesticated animals, thus enabling orders in their best interests by their own right;
And whereas the subject matter of non-domesticated captive animals has a double aspect of shared federal and provincial jurisdiction;
Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Short Title

Short title
1This Act may be cited as the Jane Goodall Act.
R.‍S.‍, c. C-46

Criminal Code

2(1)Subsections 445.‍2(1) and (2) of the Criminal Code are replaced by the following:
Definitions
445.‍2(1)The following definitions apply in this section and in sections 445.‍3 and 447.‍01 to 447.‍03.
animal advocate means
(a)a person designated by the Governor in Council under section 447.‍03; or,
(b)if no person is designated for the province in which the proceedings take place, the person from among those described in paragraphs 447.‍03(a) to (c) who is called upon by the court. (défenseur des animaux)
cetacean means any member of the cetacean order, including a whale, dolphin or porpoise. (cétacé)
designated animal means a species of animal designated by the Governor in Council under section 445.‍3. (animal désigné)
Prohibition of ownership, breeding and possession of reproductive materials of certain animals
(2)Subject to subsections (2.‍1) to (3.‍1), every person commits an offence who
(a)owns, has the custody of or controls a cetacean, great ape, elephant or designated animal that is kept in captivity;
(b)breeds or impregnates, or fails to take reasonable care to prevent the breeding or impregnation of, a cetacean, great ape, elephant or designated animal; or
(c)possesses or seeks to obtain reproductive materials of cetaceans, great apes, elephants or designated animals, including their sperm, eggs or an embryo.
(2)Subsections 445.‍2(3) to (4) of the Act are replaced by the following:
Exceptions
(3)Paragraph (2)‍(a) does not apply to a person who
(a)owns, has the custody of or controls
(i)a cetacean, great ape or elephant that is kept in captivity at the coming into force of this section and remains continuously in captivity thereafter, or
(ii)a designated animal that is kept in captivity on the date on which the designation is made under section 445.‍3 and remains continuously in captivity thereafter;
(b)has the custody of or controls a cetacean, great ape, elephant or designated animal that is kept in captivity for the purpose of providing it with assistance or care or to rehabilitate it following an injury or another state of distress; or
(c)is an employee of a federal entity set out in Schedules I to V of the Financial Administration Act who is performing duties or functions in relation to the keeping of a cetacean, great ape, elephant or designated animal in captivity in the best interests of the animal, with regard to individual welfare and conservation of the species, or to a person who is assisting that employee.
Exception
(3.‍1)Subsection (2) does not apply to a person who, pursuant to a licence issued by the Lieutenant Governor in Council of a province or by any authority in the province that may be specified by the Lieutenant Governor in Council, is conducting non-harmful scientific research or who is authorized to keep a cetacean, great ape, elephant or designated animal in captivity in the best interests of the animal, with regard to individual welfare and conservation of the species.
Exception — non-harmful scientific research
(3.‍2)Subsection (2) does not apply to a person who conducts non-harmful scientific research in accordance with a licence issued under section 10.‍1 of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act.
Exception — captivity in the animal’s best interests
(3.‍3)Subsection (2) does not apply to a person who keeps a great ape, elephant or designated animal in captivity in the best interests of the animal, in accordance with a licence issued under section 10.‍1 of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act.
Prohibition of captivity of certain animals for entertainment purposes
(4)Every person commits an offence who promotes, arranges, conducts, assists in, receives money for or takes part in any meeting, competition, exhibition, pastime, practice, display or event at or in the course of which a cetacean, great ape, elephant or designated animal is used, in Canada, for performance for entertainment purposesor for conveyance, unless the performance or conveyance is authorized under a licence issued by the Lieutenant Governor in Council of a province or by any authority in the province that may be specified by the Lieutenant Governor in Council.
(3)Section 445.‍2 of the Act is amended by adding the following after subsection (5):
Offences by corporate officers, etc.
(6)If a corporation commits an offence under this section, any officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable, on conviction, to the punishment provided for the offence, whether or not the corporation has been prosecuted or convicted.
3The Act is amended by adding the following after section 445.‍2:
Designation of non-domesticated captive animals by the Governor in Council
445.‍3(1)The Governor in Council may, after consulting with professionals in animal science, veterinary medicine or animal care and with representatives of groups whose objects include the promotion of animal welfare, on the capability of a species to live in captivity and whether the conditions of captivity adequately accommodate the biological and ecological needs for individual animals of that species to live a good life, make regulations designating a species of non-domesticated captive animal similar to a cetacean, great ape or elephant as a designated animal for the purposes of section 445.‍2.
Exception — gestating animals and offspring
(2)A designation made under subsection (1) in respect of a species does not apply in respect of
(a)an animal of that species that is gestating on the day on which the designation is made; and
(b)an animal’s offspring born immediately after a gestational period that included the day on which the designation is made.
4The Act is amended by adding the following after section 447:
Court to consider making order under section 447.‍02
447.‍01(1)If an offender is convicted or is discharged under section 730 of an offence under subsection 445.‍2(2) or (4), the court that sentences or discharges the offender, in addition to any other measure imposed on the offender, shall consider making an order under section 447.‍02 to protect the best interests of the cetacean, great ape, elephant or designated animal in respect of which the offence was committed.
Inquiry by court
(2)As soon as feasible after a finding of guilt, and in any event before imposing the sentence, the court shall inquire of the prosecutor if reasonable steps have been taken to provide an animal advocate appointed for the province with an opportunity to indicate whether the advocate is seeking an order under section 447.‍02.
Adjournment
(3)On application of the prosecutor or on its own motion, the court may adjourn the proceedings to permit the animal advocate to indicate whether the advocate is seeking an order under section 447.‍02 if the court is satisfied that the adjournment would not interfere with the proper administration of justice.
Reasons
(4)If an animal advocate seeks an order under section 447.‍02 and the court does not make such an order, the court shall include in the record a statement of its reasons for not doing so.
Court order to protect the best interests of an animal
447.‍02(1)The court imposing sentence on a person convicted of an offence under section 445.‍2(2) or (4) or discharging the offender under section 730 may, on application of the prosecutor or an animal advocate or on its own motion, in addition to any other measure imposed on the offender, order that the offender carry out any action that is necessary in the best interests of the animal, with regard to individual welfare and conservation of the species, including
(a)modifying the physical conditions in which the animal is kept;
(b)relocating the animal to another facility or sanctuary;
(c)modifying the social conditions in which the animal is kept; or
(d)forfeiting ownership of the animal and surrendering the animal to an animal welfare authority named in the order.
Factors to be considered
(2)In determining what action is necessary in the best interests of an animal under subsection (1), the court shall consider the individual animal’s welfare and conservation of the species and may ask for expert evidence to be given on the matter by an animal advocate.
Other animals in the offender’s possession, custody or control
(3)An order made under subsection (1) may be made applicable to any other animals in the offender’s possession, custody or control if those animals are of the same species as or a species closely related to the cetacean, great ape, elephant or designated animal in respect of which the offence was committed.
Designation of animal advocates by the Governor in Council
447.‍03The Governor in Council may, after consultation with the Lieutenant Governor in Council of a province, by order, designate from among the following persons one or more animal advocates for each province:
(a)a person nominated by the animal welfare authority of the provincial government;
(b)a representative of a non-governmental organization in the province whose objects include the promotion of animal welfare; and
(c)a professional in animal science, veterinary medicine or animal care.
5The portion of subsection 447.‍1(1) of the Act before paragraph (a) is replaced by the following:
Order of prohibition or restitution
447.‍1(1)The court may, in addition to any other sentence that it may impose under subsection 445(2), 445.‍1(2), 445.‍2(5), 445.‍2(6), 446(2) or 447(2) or any order that it may make under section 447.‍02,
1992, c. 52

Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act

6Section 2 of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act is amended by adding the following in alphabetical order:
designated animal means a species of animal designated by the Governor in Council under the regulations; (animal désigné)
7Subsections 6(2) and (3) of the Act are replaced by the following:
Importation and exportation
(2)Subject to the regulations and sections 7.‍1 and 7.‍2, no person shall, except in accordance with a permit issued pursuant to paragraph 10(1)‍(a), import into or export from Canada any animal or plant or any part or derivative of an animal or plant.
Interprovincial transport
(3)Subject to the regulations, no person shall, except in accordance with a permit issued pursuant to paragraph 10(1)‍(a) or (b), transport from one province to another province any animal or plant, or any part or derivative of an animal or plant.
8The Act is amended by adding the following after section 7:
Animal welfare restrictions — import and export of certain animals
7.‍1No person shall, except in accordance with a permit issued under paragraph 10(1)‍(b), import into or export from Canada a great ape, elephant or designated animal or any part or derivative of such an animal, or sperm, an egg, an embryo or a tissue culture of such an animal.
Prohibition of import and export of elephant ivory and hunting trophies
7.‍2(1)Unless the Minister has issued an exemption certificate under subsection (2), no person shall import into or export from Canada, for any purpose,
(a)an item made of elephant ivory or that has elephant ivory in it; or
(b)an elephant hunting trophy, including a trophy consisting of an elephant part.
Exemption certificates
(2)The Minister may only issue an exemption certificate for any of the following items:
(a)items of outstandingly high artistic, cultural or historical value produced before the year 1918;
(b)portrait miniatures produced before the year 1918;
(c)items produced before the year 1947 that have an ivory content that is less than 10% of the total volume of the materials from which they are made;
(d)musical instruments produced before the year 1975 that have an ivory content that is less than 20% of the total volume of the materials from which they are made;
(e)items purchased, sold or rented by a museum shown as being accredited in a list published by the Minister of Canadian Heritage;
(f)personal effects owned and possessed by an individual in his or her country of habitual residence if the items are part of the individual’s clothing or accessories or personal accompanied baggage, provided that the items are not intended for commercial purposes; or
(g)household effects owned and possessed by an individual in his or her country of habitual residence if the items form part of an individual’s household belongings being shipped to his or her new residence or form part of an inheritance from an estate, provided that the items are not intended for commercial purposes.
9Subsection 10(1) of the Act is replaced by the following:
Minister may issue permit
10(1)The Minister may, on application and on such terms and conditions as the Minister thinks fit, issue a permit authorizing
(a)the importation, exportation or interprovincial transportation of an animal or plant or any part or derivative of an animal or plant, other than an animal referred to in paragraph (b); or
(b)the importation, exportation or interprovincial transportation of a captive great ape, elephant or designated animal or sperm, an egg, an embryo or a tissue culture of a great ape, elephant or designated animal, if
(i)the Minister is of the opinion that the importation, exportation or interprovincial transportation is for the purpose of conducting non-harmful scientific research, or
(ii)keeping the animal in captivity is in the best interests of the animal when its individual welfare and the conservation of its species are taken into consideration.
10The Act is amended by adding the following after section 10:
Issuance of licence — scientific research and captivity in the animal’s best interests
10.‍1(1)The Minister may issue a licence authorizing any person to
(a)conduct non-harmful scientific research with respect to great apes, elephants or designated animals, or
(b)keep a great ape, elephant or designated animal in captivity if the Minister is of the opinion that captivity is in the best interests of the animal, taking into consideration the animal’s individual welfare and conservation of the species.
Licence — conditions
(2)In issuing a licence under subsection (1), the Minister may impose any conditions that the Minister considers appropriate in the licence, including limiting the application of the licence to the circumstances set out in one or more paragraphs of subsection 445.‍2(2) of the Criminal Code.
11(1)Paragraph 21(1)‍(b) of the Act is replaced by the following:
(b)respecting the exemption of animals and plants and parts and derivatives of animals and plants — other than captive great apes, elephants or designated animals — from the operation of any provision of this Act;
(b.‍1)respecting the issuance of exemption certificates under section 7.‍2;
(2)Subsection 21(1) of the Act is amended by adding the following after paragraph (c):
(c.‍1)designating a species of non-domesticated animal similar to a cetacean, great ape or elephant as a designated animal for the purposes of section 7.‍1, after consulting with professionals in animal science, veterinary medicine or animal care and with representatives of groups whose objects include the promotion of animal welfare on the capability of the species to live in captivity and whether the conditions of captivity adequately accommodate the biological and ecological needs for individual animals of that species to live a good life;
(3)Section 21 of the Act is amended by adding the following after subsection (2):
Exception — gestating animals and offspring
(3) A designation made under paragraph (1)‍(c.‍1) in respect of a species does not apply in respect of
(a)an animal of that species that is gestating on the day on which the designation is made, and
(b)an animal’s offspring born immediately after a gestational period that included the day on which the designation is made.

Related Provision

Aboriginal and treaty rights
12The provisions enacted by this Act are to be construed as upholding the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982 and not as abrogating or derogating from them.

Transitional Provisions

Non-application — gestating animals
13If a great ape or elephant is gestating on the day on which section 2 of this Act comes into force, paragraphs 445.‍2(2)‍(b) and (c) of the Criminal Code do not apply in respect of that great ape or elephant for the period in which it gestates that includes the day on which subsection 445.‍2(2) comes into force.
Non-application — offsprings of animals
14Paragraph 445.‍2(2)‍(a) of the Criminal Code does not apply to the offspring of a great ape or elephant if that offspring is born immediately after a gestational period that included the day on which subsection 445.‍2(2) comes into force.

Coming into Force

One year after royal assent
15This Act comes into force on a day to be fixed by order of the Governor in Council, but that day must be no later than the first anniversary of the day on which it receives royal assent.
Published under authority of the Senate of Canada



explanatory notes

Criminal Code
Clause 2: (1) to (3)Existing text of relevant portions of section 445.‍2:
445.‍2(1)In this section, cetacean includes any member of the cetacean order, including a whale, dolphin or porpoise.
(2)Subject to subsections (2.‍1) to (3.‍1), every person commits an offence who
(a)owns, has the custody of or controls a cetacean that is kept in captivity;
(b)breeds or impregnates a cetacean; or
(c)possesses or seeks to obtain reproductive materials of cetaceans, including sperm or an embryo.
. . .
(3)Paragraph (2)‍(a) does not apply to a person who
(a)owns, has the custody of or controls a cetacean that is kept in captivity at the coming into force of this section and remains continuously in captivity thereafter;
(b)has the custody of or controls a cetacean that is kept in captivity for the purpose of providing it with assistance or care or to rehabilitate it following an injury or another state of distress; or
(c)is authorized to keep a cetacean in captivity in the best interests of the cetacean’s welfare pursuant to a licence issued by the Lieutenant Governor in Council of a province or by such other person or authority in the province as may be specified by the Lieutenant Governor in Council.
(3.‍1)Subsection (2) does not apply to a person who is conducting scientific research pursuant to a licence issued by the Lieutenant Governor in Council of a province or by such other person or authority in the province as may be specified by the Lieutenant Governor in Council.
(4)Every person commits an offence who promotes, arranges, conducts, assists in, receives money for or takes part in any meeting, competition, exhibition, pastime, practice, display or event at or in the course of which captive cetaceans are used, in Canada, for performance for entertainment purposes, unless the performance is authorized under a licence issued by the Lieutenant Governor in Council of a province or by an authority in the province as may be specified by the Lieutenant Governor in Council.
(4)New.
Clause 3:New.
Clause 4:New.
Clause 5:Existing text of relevant portion of subsection 447.‍1(1):
447.‍1(1)The court may, in addition to any other sentence that it may impose under subsection 445(2), 445.‍1(2), 446(2) or 447(2),
Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act
Clause 6:New.
Clause 7:Existing text of subsections 6(2) and (3):
(2)Subject to the regulations, no person shall, except under and in accordance with a permit issued pursuant to subsection 10(1), import into Canada or export from Canada any animal or plant, or any part or derivative of an animal or plant.
(3)Subject to the regulations, no person shall, except under and in accordance with a permit issued pursuant to subsection 10(1), transport from one province to another province any animal or plant, or any part or derivative of an animal or plant.
Clause 8:New.
Clause 9:Existing text of subsection 10(1):
10(1)The Minister may, on application and on such terms and conditions as the Minister thinks fit, issue a permit authorizing the importation, exportation or interprovincial transportation of an animal or plant, or any part or derivative of an animal or plant.
Clause 10:New.
Clause 11: (1)Existing text of relevant portions of subsection 21(1):
21(1)The Governor in Council may make regulations for carrying out the purposes of this Act, including regulations
. . .
(b)respecting the exemption of animals and plants, and parts and derivatives of animals and plants, from the operation of any provision of this Act;
(2) and (3)New.

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