Hon. Pierre J. Dalphond: Honourable senators, I’m rising in support of the Agriculture Committee’s report on Bill C-275. You won’t be surprised to hear that I won’t be saying the same things as Senator Plett, who strongly criticized this report.

To summarize, Bill C-275 has been presented as biosecurity legislation, proposing a federal offence to deter trespassers on farms under the premise that they expose livestock to diseases. It also proposes to punish animal rights organizations that encourage or support these trespassers.

As I will explain, the bill as originally drafted is, in fact, an “agricultural gag” bill or an “ag gag” bill. It targets people who want to reveal and draw public attention, and sometimes law enforcement, to various kinds of animal mistreatment.

From the outset, I want to emphasize that when strangers enter onto the property of somebody else, they should be liable to punishment under provincial trespass laws and/or the Criminal Code provisions, including those on malfeasance to which some previous speakers referred to in their speeches. Equally, however, it is crucial to acknowledge the public interest in knowing about how animals are treated.

In this regard, a recent decision of the Ontario Superior Court of Justice released on April 2 of this year — after Bill C-275 arrived in the Senate — is on point. This judgment struck down a part of the regulations adopted pursuant to the Ontario Security from Trespass and Protecting Food Safety Act, 2020, designed to prevent undercover investigations of animal cruelty at farms due to Charter violations as regards freedom of expression. The judge wrote:

Publicizing the way in which animals are treated is an issue of interest to at least some members of the public. It is an issue about which the public is entitled to be informed if they want to be. It will then be for the public to determine whether they find the conditions acceptable when balanced against the consequences, if any, of changing those conditions.

In other words, provisions of the Ontario regime preventing undercover investigations were found to be in breach of section 2 of the Canadian Charter of Rights and Freedoms and were also found not to be reasonable and could not be saved under section 1.

Unfortunately, the bill before us, Bill C-275, is also aiming to prevent animal rights activists from gathering information on farming practices and to prevent undercover operations on farms.

My speech will proceed in four parts: first, the evidence in committee about the bill’s purpose and effects; second, the legal concerns raised at committee; third, the impact of the amendment, which responds to the evidence and reduces the risk of a legal challenge; and, finally, the observations, which also respond to the evidence.

First, as stated in the bill’s title, Bill C-275 claims to be related to biosecurity on farms. As Senator Plett referenced, my father’s loss of thousands of chickens from a very contagious disease, when I was much younger, convinced me long ago that biosecurity is extremely important. Therefore, I am very supportive of measures that could meaningfully advance biosecurity.

Unfortunately, the bill that our committee received — after zero debate at second reading in this chamber — is not about biosecurity but, instead, an attempt to prevent public reporting about some practices on farms by animal rights activists and undercover investigators.

I say this because of the evidence that was adduced before the Agriculture and Forestry Committee and the House of Commons. In her testimony before our committee, the Chief Veterinary Officer for Canada, Dr. Mary Jane Ireland, said this regarding the Canadian Food Inspection Agency, or CFIA: “The CFIA is not aware of any confirmed cases of animal disease in Canada due to trespassers.”

We also heard from experts that trespassers actually pose a very small risk of spreading disease compared to lawful visitors and employees. For example, cases of illness have been associated with employees’ non-compliance with voluntary biosecurity protocols, such as avian influenza on their shoes. In other words, what we heard was that the bill as drafted will fail to address genuine sources of biosecurity risks on farms.

Of note, the Ontario judgment to which I just referred paints a similar picture. The judge noted that expert evidence before him is to the effect that the greatest risk to biosecurity comes from an infected animal being brought to a facility or being moved from one contained area in a facility to another area in the same facility.

The experts also agreed that some of the abuses shown on undercover videos amounted to biosecurity hazards, such as bodies of dead animals lying exposed next to living animals, feeding mouldy food to animals or employees leaving a facility during a break and re-entering without sanitizing themselves.

We also learned from 20 infectious disease experts in their letter to the committee that as compared to trespassers, the introduction of a disease to a farm is the following:

. . . simply orders of magnitude more likely to occur as a result of workers who have daily close interactions with the animals.

On this point, the committee heard from Dr. Jan Hajek, who is a clinical assistant professor and an infectious disease expert at the University of British Columbia. He testified about an illustrative incident in 2019 at a Quebec pig farm. Trespassers who wanted to bring attention to the conditions on the farm were arrested, prosecuted and sentenced for various offences, including under the Criminal Code.

Contrary to the Crown’s allegation, the judge concluded that there was no evidence that the trespassers brought any disease or infection to the pigs, despite claims by the owner. He rather attributed that to the poor conditions on the farm.

Incidentally, the judge in the sentencing decision wrote this about the trespassers: “On-site, before entering the piggery, the offenders donned protective clothing: coveralls, shoe covers, gloves and hair covers.”

They were mindful of the animals.

Colleagues, such precautionary practices do not appear to be isolated. For example, the Ontario judgment that I mentioned earlier noted evidence in the record suggesting that animal rights activists are more likely to be attentive to livestock health because of their concern for animals. In fact, in the Quebec pig farm case, a subsequent investigation by the Quebec Ministère de l’Agriculture, des Pêcheries et de l’Alimentation documented multiple biosecurity and welfare breaches that had nothing to do with the trespassers. They found a sick animal in need of medical attention, the accumulation of manure, overcrowding, a fly infestation and inadequate ventilation.

Dr. Hajek also testified that peer-reviewed studies show that adherence to biosecurity measures is variable and often incomplete on farms. He gave the example of fur farming as an illustrative case where minks can be fed raw ground-up pig lungs or chicken entrails, even though that has led to influenza transmission to the minks and was not recommended by the federal inspection agency. He observed cases where COVID-19 spread from workers to minks, acquired mutations and spread back to workers again. Indeed, Senator Simons referred to that in her excellent speech.

In other words, Bill C-275 appears to be a colourable attempt not to achieve biosecurity on farms but to instead provide harsher punishment to the rare acts of trespass by persons whom Senator Plett called “animal rights activists.” He likes the word “activists”; he called me an activist in the committee.

In reality, the sponsor and the various lobbies behind this bill consider that provincial laws on trespass do not provide serious enough deterrents for any animal rights activists trespassing on farms to document the potential mistreatment of animals.

That is the reason why the new offence defined by this bill provides that a trespasser can be punished on summary conviction with a fine of up to $25,000 or imprisonment for a term of up to 3 months or both. If prosecuted as an indictable offence, which is another option for the Crown, the person found guilty could be exposed to a fine of up to $100,000 or imprisonment for a term of up to 1 year or both. Moreover, any organization found to have been an accomplice to the activists could be charged and exposed to a fine of up to $500,000.

In their testimony, the sponsor of the bill and some other witnesses in support of the bill said these activist groups are collecting millions of dollars and are able to pay $500,000 in fines. When they were told that they were referring to American numbers and not to Canadian organizations, they were more or less speechless.

I move to my second point, which is the legal concerns about Bill C-275 as drafted.

Before the House of Commons committee, Dr. Mary Jane Ireland, the Chief Veterinary Officer for Canada, said that the wording proposed in the bill poses legal risks. She said:

There is a risk the prohibition may not be a valid exercise of federal agricultural power, which is understood to be limited to agricultural operations that are inside the farm gate.

Before the Senate Agriculture Committee, I asked Dr. Ireland if she received legal advice from the Department of Justice Canada before making that statement. Her answer was “yes.” She added that she stood by what she said in the other place.

In fact, the federal agricultural power is found in section 95 of the Constitution Act, 1867. Senator Cotter referred to it in his speech as a potential basis to justify the validity of the bill. Section 95 states:

In each Province the Legislature may make Laws in relation to Agriculture in the Province, and to Immigration into the Province; and it is hereby declared that the Parliament of Canada may from Time to Time make Laws in relation to Agriculture in all or any of the Provinces, and to Immigration into all or any of the Provinces . . . .

From my office’s research, it appears that resort to section 95 nowadays is rare. Nonetheless, we have some guidance on what can and cannot be accomplished under section 95. For example, a recent article in the UBC Law Review by Professor Andrew Leach states:

Agriculture is shared jurisdiction between the provinces and the federal government, per section 95 of the Constitution Act, 1867. The shared jurisdiction relates strictly to production and not to transactions beyond the farm gate. . . .

The second edition of Agriculture Law in Canada, published in 2019, says this about section 95: “The prevailing judicial wisdom is that the section should be interpreted very narrowly.”

However, it’s clear that Bill C-275 proposes to apply to more than activities inside the farm gate. It will apply to any “enclosed place in which animals are kept.” This could include slaughterhouses, temporary holding sites, agricultural fairs, trucks and other means of transportation, puppy mills, pet stores, animal shelters, zoos, private residences and so forth.

Colleagues, with this context, the case for supporting some provisions of Bill C-275 under section 95 of the Constitution Act seems shaky or, at the very least, highly debatable, inviting further scrutiny. That was not done in the committee.

Notably, I would also like to mention that on October 24 of this year, the government of Alberta stated that section 95 “. . . sets agriculture within the exclusive jurisdiction of the province.” They did so in a document entitled “Standing up for Alberta’s livestock industry,” which criticized Bill C-293, An Act respecting pandemic prevention and preparedness, currently before us at second reading.

I do not entirely agree with Alberta’s statement. Like Senator Cotter, I believe that section 95 grants Parliament certain power to enact laws in relation to agriculture, including biosecurity, within the gates of the farm. Thus, the Alberta government’s statement appears inaccurate, at least to me.

Nevertheless, from the Government of Alberta’s position I draw two conclusions. First, the extent to which Parliament can act under section 95 can be subject to arguments and court challenges. After all, I would assume that the Alberta government consulted with its Attorney General before asserting that section 95 places agriculture within the exclusive jurisdiction of the province. Second, I gather from Alberta’s position that the agriculture industry in that province is not too keen on being regulated by Parliament acting under section 95.

In any event, from the comments of the sponsor of the bill in the other place and some other supporters of the bill, the bill appears to rely more on the power of Parliament over criminal laws, found in subsection 91(27) of the Constitution Act, 1867.

However, the Supreme Court of Canada reminds Parliament that the exercise of such power requires a criminal law purpose. The most recent Supreme Court decision about the exercise of federal power on criminal law is the adoption by this chamber and later by the other place of the Genetic Non-Discrimination Act in 2017, whose constitutionality was later challenged by the Government of Quebec, a challenge that was supported by the Attorney General of Canada. Both lost at the Supreme Court.

The Supreme Court gave its decision in 2020. Although all nine justices of the Supreme Court agreed that the law appears to address a criminal law purpose — that is, public health — the justices were split 5 to 4 on the constitutionality of the act.

Commenting on this judgment, one of our greatest constitutional experts the late Peter Hogg wrote:

The Court split once again on the role that harm should play in determining the scope of the criminal law power. Justice Karakatsanis (for three judges) endorsed an approach to the criminal law purpose that requires a “reasoned apprehension of harm” to a public interest . . . . She said that “no degree of seriousness of harm need be proved before [Parliament] can make criminal law.” Parliament’s apprehension of harm must merely be “reasoned,” and its “legislative action . . . a response to that apprehended harm.”

In contrast, Kasirer J. (for four judges) endorsed (…) an approach that understands harm to play an important role in limiting the reach of the criminal law power. He set out a three-stage test to be used in determining whether a federal law satisfies the criminal law purpose requirement [under the Constitution]. Under this three-stage test, a court must determine whether: (1) the federal law relates “to a ’public purpose’, such as public peace, order, security, health or morality”; (2) the federal law seeks to suppress or prevent a “well-defined threat” to the specific public purpose; and (3) the threat to the specific public purpose is “’real’, in the sense that Parliament had a concrete basis and a reasoned apprehension of harm when enacting the” federal law.

If Bill C-275 as initially drafted were to be adopted, I venture to say that challengers would argue, based on the evidence given at committee, that Parliament had no concrete basis to support a reasoned apprehension of harm when enacting a bill that targeted only some vague and unproven biosecurity risks associated with occasional trespassers but not the more serious sources of risks, such as employees and visitors who do not comply daily with suggested protocols.

In sum, as originally drafted, Bill C-275 proposes the creation of an offence in relation to infinitesimal biosecurity risks while, in the same breath, excluding proven serious ones. I think that’s a good way to challenge a bill.

That is why — referring to the bill’s exclusion of on-farm workers from prohibitions regarding the risk of spreading disease — law professors Angela Fernandez of the University of Toronto and Jodi Lazare of Dalhousie University indicated that this mismatch of the bill’s stated purpose and its effects may, as drafted, raise issues of constitutional compliance respecting federal jurisdiction over criminal law.

Professor Jodi Lazare said:

From a constitutional perspective, in my view and as has been repeated here, this is a trespass bill that may or may not, based on the evidence, have incidental or secondary effects on biosecurity. It is quite clear that this bill is about shutting down activism and trespass, about protecting animal agriculture. In fact, it has been explicitly stated a few times now that this bill is about the protection of private property.

Despite these concerns, why are the supporters of the bill so adamant to limit it to trespassers? The answer was made obvious through various witnesses. It is to protect the meat producers from negative reports about their farming practices by animal rights activists because these reports are damaging to the business. Indeed, the Ontario act on biosecurity and its counterparts in some other provinces pursue the same goal by stating that being employed under false premises makes you a trespasser by removing the authorization to be on the farm. Because these provincial laws apply, somebody who is seeking a job and hides the fact that he is an animal rights activist or a journalist or someone who wants to create an undercover report will be considered a trespasser.

The Ontario act and some regulations adopted pursuant to it were challenged before the Superior Court of Ontario, which, as I said, has declared that to be a breach of the freedom of Charter rights and was unjustified under section 1. Despite that decision and the concerns it raised in relation to Bill C-275, no Charter analysis was provided to the committee nor a Charter Statement tabled in this chamber. As a matter of fact, Senator Gold hinted last week that there might not be such a statement.

The intended chilling effects of Bill C-275 as initially drafted could not be denied. As we know, undercover efforts have sometimes reported evidence of illegal animal abuse on farms in Canada. Video footage from a whistle-blower at Paragon Farms in Ontario led to their corporate entities pleading guilty to animal cruelty and a $20,000 fine in 2023. The guilty pleas related to an illegal C-section performed on a live mother pig, and for castrating and cutting off the tails of piglets without any pain relief.

In 2021, an Ontario mink farm was convicted and fined for violating Ontario’s animal protection laws following an undercover report. The footage showed filthy conditions, minks being confined in tiny cages and minks suffering from untreated and festering wounds. Animals regularly exhibited repetitive behaviours associated with poor psychological health, such as pacing back and forth and rapidly circling in their cages.

Furthermore, there is no biosecurity rationale for punishing undercover employees. Returning to the Ontario judgment I mentioned earlier, the judge said:

The person could in fact be a model employee who has adhered to all biosecurity protocols, treated animals with the highest degree of care and ensured the safety of their co-workers.

In fact, it is wrong to label undercover employees as trespassers. As the Ontario judge wrote:

. . . while people are not “otherwise free to engage in” trespass, they are otherwise free to gain entry to other premises by using false pretences without punishment by the state. The state does not penalize or brand as trespassers people who exaggerate their passion for a particular industry in a job interview or who get into a bar by claiming to be 19 when they are not.

Colleagues, in relation to undercover employees, it is indeed the freedom of expression that is at bar. Of course, in relation to the Ontario act, the province argued the opposite. The province submitted that the political goal of some of the interveners is not to improve animal welfare but to eliminate the use of animals in the service of humans for any purpose outside meat. Ontario sought to argue that it is not legal to obtain employment with one employer to spy on that employer on behalf of a different person or group. It argued that the legislation in question prohibited unlawful trespass rather than being targeted at speech. However, as the judge noted, this was a somewhat circular argument. It is easy to see why. There is very little difference between an undercover employee and an actual employee.

To quote again from the decision:

In the scenario under discussion, the employee is on the property with the owner’s consent. The employer wants the employee to be there every day to carry out their job duties. Except for surreptitious recordings or other communications about what the employee sees, everything the employee does, including interaction with animals, is with the employer’s consent. Indeed it is at the employer’s direction. The employee only becomes a trespasser because they have denied . . . affiliation with an animal rights group. It is that expression that makes them a trespasser.

The denial, it should be noted, is consistent with the values underlying freedom of expression.

As the judge observed:

While one may agree or disagree with the [animal rights activists], their goal in pursuing undercover exposés is consistent with the principles that underlie freedom of expression. They seek to tell the public about the conditions in which animals are raised and slaughtered. They do so to bring about social and political change. They do so in the pursuit of self-fulfillment.

Furthermore, the judge said:

. . . for a potential employee to deny any association with animal-rights groups in a job interview does not threaten biosecurity, the food supply chain or animal safety. Nor does the follow-up act of such an activist communicating what they see in an agricultural facility.

I regret that we have not had a chance to properly examine these legal issues and developments, including the potential interaction of Bill C-275 with provincial legislation like the one in Ontario prohibiting undercover operations. Certainly, we did not look at them in committee. In fact, these aspects would have been more suitable for the Legal Committee. It also would have been helpful to have a second reading debate on this bill to canvass such issues before the work of the committee.

In conclusion, Bill C-275, like the Ontario legislation, deserves to be called an “ag gag” bill, targeting animal rights activists and journalists to prevent adverse publicity. Instead, I believe that our society should take a different approach.

To echo the words of the Ontario judge:

Rather than punishing the expression, the more proportionate response is counter speech that explains the practices at issue and why they are necessary. It will then be up to social consensus to determine whether the practice should continue or be modified.

I now turn to my third point: the amendment added in committee now contested by the Conservative leader in the Senate and his followers.

At committee, Senator Plett actually suggested amendments after hearing the testimony of Professor Lazare and Professor Fernandez questioning the constitutionality of the bill. Senator Plett said, “Don’t say it’s unconstitutional and throw out the baby out with the bathwater. Let’s improve it.”

However, in this chamber, Senator Plett is now telling you that he opposes any amendment to the bill. I agree with Senator Plett number one; an amendment is the way to go, and a true biosecurity bill is what we should do instead of a colourable attempt to silence people.

In this respect, I emphasize that Professor Lazare suggested that the bill’s biosecurity measures should apply to everyone on the farm so that the purpose and effects will match the title of the bill. In answer to a question from Senator Plett, Professor Lazare said:

If I may answer a question from earlier about how we might amend the bill instead of throwing the baby out with the bathwater, if the bill applied to anyone who entered onto a farm, if anyone who was at risk of bringing a contaminant or disease onto a farm could be liable, that would be a biosecurity bill. That would be something that the federal government could do under its jurisdiction over the criminal law, which covers public health and security. As the bill currently stands, it is a trespass bill; it doesn’t target biosecurity. . . .

It is also worth noting that in the recent Ontario judgment to which I referred, the Ontario government’s affiant agreed on cross-examination that any concern about biosecurity would:

. . . be at least as well addressed as it is under the Act if all individuals in Animal Protection Zones were required to follow biosecurity protocols.

Colleagues, this is what the amendment adopted by the committee does by simply deleting the words “without lawful authority or excuse” — five words that give considerable reason to pause, as I’ve shown so far. This mitigates constitutional concerns by addressing all those situations that represent real or potential threats to biosecurity. It also gives us something better resembling a biosecurity bill.

To be clear, with the amendment, trespassers remain captured by the prohibition, even though they have never caused a confirmed case of animal disease. With the amendment, it brings a rational and evidence-based approach to the intent of the bill and makes it a real biosecurity legislation rather than an “agricultural gag” law.

It has been suggested that the removal of these words would deprive workers and visitors of any protection and expose them to charges under the newly created offence further to a complaint to the police by the farm owner. However, I respectfully submit to you that the protection of farm workers, visitors, delivery persons and so on is found not in these words, but rather in one of the essential elements of the offence, namely the prohibited conduct — entering a building or other enclosed place in which animals are kept — can do the following:

. . . reasonably be expected to result in the exposure of the animals to a disease or toxic substance that is capable of affecting or contaminating them.

First, you need to enter, and, second, you have to be a risk.

In other words, only persons who intentionally, negligently or recklessly disregard biosecurity risks could be found liable. As long as farm workers, visitors, delivery persons and trespassers comply with relevant protocols or practices, they cannot be convicted under the proposed legislation.

Incidentally, that essential element of the proposed offence raised many questions and comments at committee by Senator Marshall. Let me quote what she said at committee in one of her interventions:

To clarify, the amendment itself isn’t focused on all trespassing. When I read the amendment —

— she is referring to the fact that the bill amends the Health of Animals Act —

— it’s focused on trespassing if it “. . . could reasonably be expected to result in the exposure of the animals to a disease or toxic substance . . . .”

To me, reading the amendment, you are not focusing on all trespassing; it’s a specific kind of trespassing. It’s a narrower focus. . . .

I will say that Senator Marshall is not a lawyer by training, but she has good legal reasoning.

Colleagues, why should an employee who wilfully or recklessly ignores biosecurity protocols be protected by the fact that they are lawfully on the premises? Why should an employee wilfully spreading a disease not be covered by a true biosecurity act?

I’ll now move on to my final point, which is an observation. This observation simply calls on the government to implement regulations to protect biosecurity on farms under section 64 of the Health of Animals Act, which this bill proposes to amend. This would make protocols that are currently optional on farms mandatory, as prescribed by the regulations.

I understand that Senator Plett doesn’t support this invitation to the government, because, in his view, biosecurity should be left to the discretion of each farmer, even if failure to follow the suggested protocols could lead to an epidemic that could have ramifications far beyond that farm.

In short, the observation adopted by a majority of the members of the Standing Senate Committee on Agriculture and Forestry stems from the evidence presented to the committee illustrating how inadequate the voluntary protocols are, as they are often not respected.

Honourable senators, the Agriculture and Forestry Committee’s amendment means that Bill C-275 now has the potential to meaningfully improve biosecurity on farms and not constitute an “agricultural gag” bill destined to be challenged before the courts. I invite you to adopt the report and, if necessary, send this bill back to the House of Commons for further reflection.

Thank you. Meegwetch.