Senator Housakos: My speech, as you know, Senator Lankin, is a critique of this bill. It’s not incumbent on me to find all the solutions. But I do believe vehemently — and that’s why I oppose this piece of legislation — that the objective is honourable. We are trying to help failing — and particularly print — news platforms across this country. We all grew up with them. They are learning tools. They are so fundamental to our democracy. You are absolutely right — some are more left, some are more right, and that’s normal. I don’t have any issue with that. I encourage that as part of the democratic process.

But even in today’s digital world, some of them are very successful. They might not like it, but I’ll use The Globe and Mail as an example. They have adapted quickly to the new realities of the digital world. The digital world has offered a unique opportunity. It’s a megaphone to promote our work, and it has offered it to journalists, artists and politicians. It is something I believe we should embrace and learn how to use it effectively. The Globe and Mail has a subscription-type system that they have been using now for a number of years. They are as successful today as they have ever been in the past.

Another outlet, the National Post — and again, they might not like this — has not adapted to the digital reality as quickly, and we have seen their newsrooms across the country suffering. I’m not picking one or the other, but they are two prime examples of important national newspapers. One is really thriving in the digital world, and the other one isn’t.

It’s the same with local weekly newspapers. In my neighbourhood, once upon a time, there were six. Now there are three that are suffering, two are doing really well and one, unfortunately, went bust.

We have seen now with this government’s noble attempt to spend hundreds of millions of dollars every year to prop them up — to suspend them — that it hasn’t worked. The ones that are doing well are still doing well because they’ve adapted. For the ones that are not, all the money in the world won’t help them.

From my 20 years of business experience, I have learned something. If your business model is not adaptable to the economic realities of the time, the government can give you all the money in the world and you won’t succeed.

I don’t have the solution at my fingertips. I hope we have that robust, intense discussion at our committees — thank God, in Senate committees we do have those types of robust discussions — and, hopefully, we can come up with some decent, thoughtful amendments that would help this industry that we all agree and recognize has to flourish.

Unfortunately, for me, this is a shakedown of certain digital platforms that are not content providers. They are just platforms for content to be exported. We are shaking them down in order to help an industry that hasn’t adapted to that particular reality. There have been winners and losers. I think the marketplace should let them work it out.

By the way, Google has been negotiating with news outlets now for years. They have made arrangements with newspapers and different organizations. The Globe and Mail is an example, right? They have made a deal.

All I am simply saying, again, is let the marketplace figure it out amongst themselves in a conducive fashion.

[Translation]

The Hon. the Speaker pro tempore: Honourable senators, the time has expired.

[English]

Hon. Fabian Manning: Honourable senators, I rise today to speak to Bill C-18, An Act respecting online communications platforms that make news content available to persons in Canada.

The purported purpose of this bill is to regulate what the bill terms “. . . digital news intermediaries to enhance fairness in the Canadian digital news marketplace . . . .” “Fairness” is the word that the government employs most in relation to this bill. The government argues that regulation of digital news intermediaries is necessary to allow for the Canadian digital news market to be sustainable.

To accomplish that supposed objective, this bill does many things. It creates a framework for digital news intermediary operators — online platforms — and news businesses to enter into agreements respecting news content that is made available by the digital news intermediaries. It empowers the Canadian Radio-television and Telecommunications Commission — CRTC — to maintain a list of digital news intermediaries and then enables the CRTC to exempt them from the terms of the bill if the CRTC is satisfied that an intermediary has entered into agreements with news businesses that, again, in the commission’s opinion, satisfy certain criteria of fairness that the CRTC itself will adjudicate.

The bill allows for regulations to be made by the government on how the CRTC is to interpret these criteria. The bill establishes a bargaining process between businesses and digital news intermediaries that the CRTC will oversee. It permits businesses to complain to the CRTC about the way digital news intermediaries are conducting themselves. And, of course, the bill then authorizes the commission to impose, for any contraventions of the legislation, penalties and conditions on the participation of news business in the bargaining process.

The bill also establishes a mechanism for the recovery, from digital news intermediary operators, of costs related to the administration of the legislation.

Colleagues, what this bill does is inject the CRTC into yet another dimension of how the internet and broadcasting have functioned over the past 30 years. This time, the CRTC is to be injected into how Canadians get their news and into who benefits from that consumption of the news.

The Senate recently reviewed Bill C-11. Many witnesses, among them former chairs and commissioners of the CRTC — people who possess considerable knowledge and experience — told us about the limited capacity of the CRTC to take on the new roles envisioned for the commission under Bill C-11.

Now the government is proposing, under Bill C-18, to give the CRTC an even broader role and more power when it comes to the negotiation of revenue-sharing arrangements between online platforms and news businesses. Bill C-18 would impose a board on all parties. That board would, of course, be appointed by the government to conduct the arbitration that is provided for in Bill C-18. It is scarcely surprising that many people question how such a board will credibly adjudicate between very different points of view and in a manner that is seen as legitimate by all parties.

I would argue that the absence of legitimacy is a major problem with this bill, given the scope of authority that is proposed for the CRTC over what are bread-and-butter issues for multiple news outlets — often small news outlets — and the platforms themselves.

The role of the CRTC will also extend to how consumers, or the Canadian public, access and consume news. What I fear is that the task that the CRTC will assume will be so difficult that the government may end up inadvertently undermining the legitimacy of the CRTC itself. That is, of course, not what the government intends. But as with all ill-thought-out good intentions, that may nevertheless be the result.

Despite all the claims by the government that it widely consulted on this bill, there is certainly no clear consensus to suggest that the role proposed by the CRTC will be seen as legitimate by all parties.

I want to focus my remarks today on what I see as some of the core problems with the concepts that underscore the bill.

The first challenge concerns what the ultimate objective of the bill actually is. When I listen to government justifications for this legislation, I hear a lot of buzzwords and phrases.

Minister Rodriguez has said that the bill is important to protect a free and independent press. He says that the bill is about ensuring that Canadians have access to fact-based information. He also said this is about strengthening our democracy. He states that the bill will build a fairer news ecosystem.

We hear those words — “news ecosystem” and “fairness” — a lot from government spokespeople. Not surprisingly, Senator Harder repeated those same themes when he spoke to the bill in the Senate Chamber. Using the same words as the minister, Senator Harder said:

The aim of Bill C-18 is to create a news ecosystem that promotes the creation of high-quality news content and reflects Canada’s diverse voices and stories.

He says that the bill will provide “. . . a legislative and regulatory framework that is flexible, modern and encourages market fairness.” There is that word “fairness” again.

By my count, Senator Harder uttered the word “fair” or “fairness” more than 20 times in his remarks on the bill. He referred to the importance of the government ensuring, through the CRTC, “fair negotiations.” He said that the government had to ensure that everybody gets their “fair share.” He spoke about the need for news businesses to get their “fair compensation.”

Many iterations of that word “fair” were used in Senator Harder’s remarks. The minister also continuously repeats the fairness mantra.

I’ve been around politics for a long time. Excuse me for being a little bit cynical. When a politician uses a word like “fair” that many times, people are wise to check to see if they still have their wallets.

What this is really about is money. It should come as no surprise to anyone that the question of who gets access to revenue streams generated from online advertising is the major focus of this bill. Accessing that revenue stream is what the bill is really all about.

Through this legislation, the government proposes to set up a system where the digital platforms will be required to pay news businesses for posting links to the news content that they have produced. Senator Harder argued the government’s case for doing this by saying that the business model of digital platforms is to capture billions of dollars in advertising revenue by posting these links. But then, he argues, they pay none of that advertising revenue to the originators of the news.

The platforms, of course, see it differently. In their view, what the bill will do is to require them to pay the publishers simply for hosting links to their websites and for bringing more people to their websites. In effect, what they see is a de facto tax for putting the link to the news site on their platforms.

Whether we support the point of view of the government or the platforms, there is no dispute over the fact that with Bill C-18, the government has come down on the side of the legacy news media.

The government argues that the reasons for doing so are grounded in the devastating impact that the internet revolution has had on the legacy news media. Minister Rodriguez himself referenced the allegation that since 2010, about one third of journalism jobs in Canada have disappeared and that Canadian TV stations, radio stations and newspapers have lost approximately $4.9 billion in revenue, even as online advertising revenue has grown.

The bill is in large measure about trying to put the genie back in the bottle and reverse the undoubtedly negative impact that the advent of the internet has had on traditional broadcasters.

Sue Gardner, who in 2021-22 was a visiting professor at the Max Bell School of Public Policy, described this in a recent article as being the equivalent of a government 100 years ago requiring carmakers to pay permanent compensation to companies who had heretofore made buggy whips.

Those buggy whip manufacturers have been following the business model of buggy whip makers for many centuries. Then came along the automobile, and buggy whip makers suddenly found their previous profits badly impacted. Government intervention might make good sense for buggy whip makers, but does it make good sense for society as a whole?

I don’t want to minimize the struggles that traditional news organizations are going through. I know many jobs have been lost. I have seen this in my own province of Newfoundland and Labrador. But I do believe we need to ask ourselves whether heavy-handed government intervention to support an out-of-date business model really makes sense.

If this is what we are doing, then words like “ensuring fair negotiations” and “ensuring that everybody gets their fair share” are really just a cover. What the bill is really about in that case is about justifying government intervention. That intervention will occur through the CRTC to redirect revenue flow.

That brings me to what has been the government’s rhetorical cover for this bill, namely, the argument that it is essential for our democracy to sustain the old way of doing things.

In this regard, Senator Harder’s remarks on Bill C-18 stress the vital services that traditional news broadcasters are said to perform in Canada. He said that “. . . a free and independent press is one of the foundations of a safe, prosperous and democratic society.” Certainly, no one in this chamber would disagree with that premise.

But he also implied that it is largely the traditional broadcasters who deliver for Canadians that fair and unbiased information. Senator Harder implied that unless government supports traditional broadcasters, we will see greater misinformation and disinformation. Specifically, he said:

We have seen how the spread of misinformation and disinformation around the world can damage societies. A robust, questioning media is one of the most effective antidotes to these disorders.

With all due respect, I believe it is a fallacy to argue that traditional media is somehow our antidote to misinformation. Everyone in this chamber has witnessed mainstream media feeding frenzies that result whenever hot-button issues suddenly emerge at the top of the news cycle. A groupthink takes hold. Suddenly the entire parliamentary press is reporting the same story in much the same way. No one wants to be seen as out of step. Investigative journalism has gone out the window.

When this happens — and it happens all too frequently — I have rarely seen any of the mainstream media outlets swim against the tide. When the feeding frenzy is at its peak, I have rarely seen media ask many serious questions that might suggest that perhaps somebody has it wrong. As I just said, investigative journalism has gone out the window.

The idea that government intervention through Bill C-18 is pivotal to create a healthy mainstream media better able, in Senator Harder’s words, “to hold . . . leaders accountable” puts the emphasis in completely the wrong place. The traditional media are not the guardians of objective truth.

I think many Canadians see it the same way. When we consider Canadian news viewing habits, we are seeing a decline in confidence in traditional broadcasting. The average audience for CBC’s supper-hour newscast is just over 300,000 people. That’s less than 1% of the Canadian population. I’m sure many senators opposite watch the CBC religiously, and on this side, I may be the only one, but I do too most times. I too watch it from time to time. In Newfoundland and Labrador, we have good memories about what the CBC was and about the services it did provide, particularly to the rural communities throughout our province, especially in the Labrador region of our province.

But the public’s view of that is changing. Despite Liberal MP Lisa Hepfner’s assertion that online news outlets aren’t news, clearly most Canadians don’t see it that way. Canadians are looking for greater and real diversity in their news. I think that it is confirmed if we seriously consider how many people are watching traditional mainstream news broadcasts in general.

CTV News has around four times the viewership of CBC, but even their viewership is less than 4% of Canadians on most nights. Much of that likely has to do with the availability of greater variety of alternative news sources. But some of it undoubtedly has to do with skepticism concerning some of what is being reported in the mainstream media.

With all due respect to my colleague Senator Harder and to the government, if we really want to counter disinformation, I think the best antidote to groupthink in the media is to celebrate diversity in news sources. I would argue that diversity of opinion that we have now as a result of the internet revolution is a far greater antidote to misinformation than what we will get from bills like the one we have before us.

There is no question that the diversity of opinion on the internet inevitably risks simultaneously greater dissemination of disinformation. But for the informed and critical consumer of information, this should not be a danger. What we should be encouraging as a society is both critical thought and the critical consumption of diverse information. What we should not be doing is acting from a presumption that more government intervention to empower certain news media over others is the solution to our problems. Yet, I fear that — cloaked in a language of fairness and countering disinformation — this is the precise purpose of where the bill is leading us.

Colleagues, this bill requires a fulsome review in committee before we can agree to pass it.

I have only talked about some of the issues and concerns I see with the bill. There are others. In particular, what happens if the platforms simply refuse to cooperate with the legislation? What if they simply de-link all previous Canadian news sources? Is that a possible outcome? Are there other negative outcomes that the government is simply choosing to ignore? We know and have heard that the United States has again signalled, as it did in relation to Bill C-11, that the passage of the bill will have trade implications. Once again, the government seems determined to ignore those concerns.

Like the previous bill, Bill C-11, which we reviewed, Bill C-18 is complex, and its implications are multi-faceted. I hope senators agree with me that the committee reviewing this bill must hear from witnesses on all sides of the issue in order to fully understand the potential implications.

I believe this is essential, since, once again during House debate, the government cut off hearing from witnesses in an attempt to rush the bill through the legislative process. It did not work on Bill C-11, and I highly doubt it will work on Bill C-18.

The irony of the government doing that — even as Senator Harder tells us how important this bill is for democracy — should not be lost on anyone. As we did on Bill C-11, the Senate can — and should — ensure that witnesses who are prevented from appearing in the House are heard in this chamber. Personally, I am skeptical that this bill will be good for the country at the present time. I am concerned about the implications of certain sections of the bill, but I am prepared to listen to all witnesses on all sides of this issue.

I share the concerns of many when it comes to ensuring that our smaller and remote communities in particular have access to quality local news. I fear that Bill C-18 either would not be a solution to that problem or would create so many other problems that the supposed cure may not be worth it. But, as I said, I want to hear from multiple witnesses on all sides and hope the senators opposite will be prepared to do that as well. Thank you.

[Translation]

Senator Manning: Thank you, Senator Cormier. I didn’t get the last couple of words of your question, but I think I got the gist of what you’re asking.

There’s no doubt in my mind — I live in a small, rural part of Newfoundland and Labrador and I’m very concerned about the impact of any legislation on those small publications. I hope that through the committee process we will hear from publishers such as those you touched on and the impact that the internet has had on them so far, and then we’ll hear what they think about Bill C-18. I’ve had the opportunity to meet with several people involved in publishing across the country already on Bill C-18 — small, medium and large — and there’s a variety of opinion, as always. We’ve served on the committee for some time now and had the opportunity to hear from everybody.

My concern on the House side is that they cut off debate and moved on. At least in the Senate on Bill C-11, whether I agree at the end of the day with what happens to the bill, I do agree with the process of taking our time to listen to others, to listen to the people who are affected and hopefully improve the bill if it needs to be improved, move amendments if they need to be moved, but to make sure that at least the small players in this game don’t get swallowed up.

Hon. Andrew Cardozo: Thank you for your speech, Senator Manning. I found it most interesting. My sense is, as I’m listening to your criticism, I feel that your complete faith in the purity of the online world is kind of enchanting, but it’s five or seven years out of date, sir. I do share your interest in hearing from a lot of viewpoints in committee.

I want to read two lines from a report yesterday. There was a report that was issued, and some MPs from the other place hosted this session that a number of senators attended. MP James Bezan was among the people who spoke in favour of this report. I want to quote two quick lines:

Russian disinformation targeting Canadians received engagement from over 200,000 accounts on Twitter. These networks were among Canada’s most prolific and influential political communities online.

So these Russian-controlled communities are more influential than all of the newspapers in Canada that you can think of. That’s where we’re going, and that’s where things are.

My concern is that your view that government-appointed officials are non-legitimate is very troubling. Because if we were to fire all government-appointed officials, that would include all of us in this place, but it would also include every judge, regulator, police chief, fire chief. We would not have law and order. We have a system where the democratically elected governments appoint various officials and we’ve placed trust in them.

My question is this: Do you share my concern that we should perhaps have faith in at least some of our government-appointed officials or do you feel they should all be removed because they’re not legitimate?

Senator Manning: Thank you, senator, for your question. First of all, my faith in the online world and social media is very limited. I am not on any social media myself because maybe I’m too opinionated or whatever the case may be, but I decide to keep my views to myself most of the time.

With regard to government-appointed officials — and I’ve served in different positions — I don’t necessarily agree with all appointments, as I’m sure you don’t either. My concern with this here is that the variety of opinion that we received on Bill C-11 — we received many people who came before us who had concerns with the opportunity that we will be giving to the CRTC to regulate, to organize, to decide who will be the winner and the loser here. That concerns me and concerned the witnesses we’ve heard on Bill C-11.

We have to try to make it — again, I talked about the word “fairness” being used — as open and transparent as possible. We hear a lot of that too. I think we have to try at least to be as open and transparent as we can with the legislation to make sure that the people out there who are most affected at least believe they have been treated fairly. There’s that word “fair” again. Those words are important, but it’s very important to the people who are involved in the industry out there.

That’s why I’m very interested in beginning the process at committee. I believe in my time here in the chamber — and I’m sure you’ll learn the same thing as you go — it is the committee where the work is done. It’s the committee where we educate ourselves, where we find out from across the country how people think about a piece of legislation and how they offer improvements and amendments to it. Then it is up to us to either take their advice or just sit back and not do so. But at least we have the opportunity to do so.

Senator Cardozo: This is more of a statement just to thank Senator Manning. This will be the first bill that I will be involved in from beginning to end. Like you, I look forward to hearing from the diversity of opinion on this bill, and I’m sure you and I share that view. We’ll look forward to those hearings.

Senator Manning: Thank you. I wasn’t sure if you were answering Senator Cardozo’s question in the beginning or asking me one. Anyway, it was a little bit of both. I wouldn’t want you to be confused.

The bottom line is that we live in a changing world in so many aspects of our world. The media is part of that. When I remember back to when I was growing up, we had one channel in our community — the CBC — and if the weather was bad, you had to go on the roof to fix the rabbit ears to make sure the view came in and wasn’t all snowy on the screen. Access to media is now at your fingertips. Finding some type of regulation to deal with that is in all our best interests, but finding the best legislation to deal with that is in Canadians’ interest. I think that’s where we need to be in relation to the bills. It can’t be Band-Aid solutions. We have to take the whole problem and try to work through it and try to come up with solutions and a piece of legislation that addresses the concerns of all players.

I know the small players in the media are struggling in this country. I don’t have to go any further than Newfoundland and Labrador to see that. I’ve met with those people in some cases. They’re concerned about legislation, but they’re also concerned about their futures, and many of them have closed up shop. We have to try to find a way to protect them but at the same time protect the freedom the media has.

What I said earlier in relation to committee is that we can talk about it here in the chamber and we can talk about it outside, but it’s in committee that the work gets done. It’s in committee that we hear from the witnesses and educate ourselves and, hopefully, through that educational process come up with a piece of legislation that addresses the concerns we all share.

Hon. Donna Dasko: Will Senator Manning take another question?

Senator Manning: Yes.

The Hon. the Speaker pro tempore: Could you ask your question, please?

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

The Hon. the Speaker pro tempore: Those in favour of the motion will please say “yea.”

Hon. Paula Simons: Honourable senators, today I rise to speak to Bill S-241, known as the “Jane Goodall Act.” Since this bill was first placed before us, we have heard many inspirational, passionate, even lyrical speeches about the importance of protecting animals, especially “charismatic” mammals, including gorillas, elephants, tigers and whales, from abuse and exploitation.

Our cultural expectations for the proper care of captive wildlife in zoos and aquariums has changed radically over our lifetimes. Today, it is not enough for animals to be kept safe and well fed. We also demand that animals today be cared for and displayed in a way that recognizes and respects their dignity and autonomy. We now believe that the primary role of zoological gardens and marine parks is not to entertain children and sell popcorn, but to protect endangered species from extirpation and extinction. Canada’s zoos pride themselves on their breeding programs — their efforts not just to keep animals safe in captivity, but to work to reintroduce them, where and when possible, to their natural habitats.

This has been a radical paradigm shift. When I was growing up in Edmonton, I lived just a few blocks away from what was then called the Storyland Zoo. Animals were kept in enclosures that featured nursery rhyme and fairy tale settings and backdrops. There was no effort to keep the animals in naturalistic landscapes. They were there to be cute and to be part of a fairy tale, fantasy world.

But the zoo abandoned the Storyland theme decades ago. Today, the Edmonton Valley Zoo focuses primarily, though not exclusively, on northern and prairie animals who are well adapted to life at 53° latitude. The zoo strives to keep animals — where they can — in relatively naturalistic settings. Some of the older enclosures are still lacking, but the zoo is moving in the right direction, in keeping with emerging philosophies of zoo keeping.

The Edmonton Valley Zoo is also part of an international network involved in what is known as the Species Survival Plan, a program to help breed and restore populations of endangered or threatened species. It is specifically involved in the breeding and protection of the Amur tiger, the Grevy’s zebra, the snow leopard, the red panda and the Goeldi’s monkey. The zoo also supports the work of the Snow Leopard Trust, the Red Panda Network and the Amphibian Ark.

The Edmonton Valley Zoo has done its best to learn from the mistakes and prejudices of the past, and it strives to create a facility that offers educational opportunities to the community and to help safeguard species at risk.

I bring this up not just to mark the way the philosophy of Canadian zoo management has evolved over time but because the successes — and failures — of the Edmonton Valley Zoo highlight a problematic weakness in Bill S-241.

As currently drafted, the legislation pays extraordinary deference to the American standards of zoo and aquarium care as set by the Association of Zoos and Aquariums, the AZA — although I guess that should be “A-zee-A,” which is sort of my point. The bill grants to the seven big Canadian zoos and marine parks that have achieved “A-zee-A” status particular privileges and exemptions, for which other Canadian zoos do not qualify. Never mind that Canada has its own agency that independently inspects and rates Canadian zoos, CAZA, which stands for Canada’s Accredited Zoos and Aquariums.

The bill doesn’t offer an explanation of why we should or would rely on American rather than Canadian standards. There seems to be an implicit suggestion that the American accreditation is better or, perhaps, harder to achieve. But as a Canadian, I am deeply uncomfortable with writing an explicit preference for American rather than Canadian protocols right into the text of the bill —

Senator Simons: — especially without evidence that because it’s American, it’s automatically better.

If we’re worried that CAZA doesn’t have the right standards or enough teeth, surely, we should deal with that issue and not import U.S. rules and regulations right into our Canadian legislation. Today we may think that those rules are better, but given the cultural upheavals in the United States, do we really want to tie our legislation to American paradigms and models in the long term?

Making ourselves beholden to the judgment of American inspectors may also rob us of the chance to make nuanced decisions based on specific local situations, and here I want to circle back to the example of the Edmonton Valley Zoo and address, if you will, the elephant in the room.

One of the key reasons that the Valley Zoo has never achieved AZA accreditation is because it keeps a solitary Asian elephant, known to the public as Lucy. Lucy has lived at the zoo for 45 years, and her presence there has been contentious for decades, with lobby groups from around the world pushing for her removal to an American elephant sanctuary, many of which — for what it’s worth — also lack AZA accreditation.

Now, if I had a time machine and could undo the decision made more than four decades ago to bring Lucy to Edmonton, I would. The zoo should probably never have had an elephant in the first place. Elephants, as many of you have explained, are intelligent, social animals who do not thrive in solitude, and they are large animals who need space and freedom to roam. They aren’t meant to be housed in barns or corrals.

It’s one thing to say that the zoo should never have had an elephant or that it should improve its enclosures, but it’s quite another to insist that Lucy be moved now. For years, the British‑based animal rights group Free the Wild has led an international campaign calling for Lucy’s removal from the Valley Zoo. As recently as 2021, Free the Wild described Lucy as being “imprisoned” and in “purgatory.” Their public statement continued:

The question remains — Why does Edmonton Valley Zoo, after four decades of total exploitation, choose to continue to torture Lucy?

In response, the Edmonton Valley Zoo invited four independent experts chosen by Free the Wild to examine Lucy this past October. Last week, Free the Wild released their independent reports into Lucy’s health and care. Did the experts find evidence of torture?

Well, Ingo Schmidinger, who is an international expert in the care of captive elephants and who was, at the time of the examination, the Director of International Operations for the Global Sanctuary for Elephants, wrote this:

The team shows huge dedication to their daily tasks —

 — he reported of the staff at the Valley Zoo —

 — Extraordinary is the amount of Lucy’s caretaker . . . and the time spent with the elephant during all daily working hours, as well as the extreme attention she receives from each team member.

Schmidinger concluded that, ideally, Lucy should be moved to an elephant sanctuary but noted that because of a long-standing respiratory condition, he doubted she could be moved safely at this time. Lucy breathes and drinks only through her mouth and never through her trunk, which is extremely atypical. No one knows whether her trunk is blocked or obstructed in some way, and despite their best efforts, none of the four experts could figure out the cause of her respiratory distress.

Schmidinger wrote:

But, as the question with regard to her respiratory issue is still not answered, although this ailment has been observed and mentioned now at least since 2008 . . . we have to assume that under the current circumstances, and as we still don’t know what is happening to Lucy, she might not be fit for travel at this very moment.

A separate report co-authored by Dr. Frank Goeritz, Head Veterinarian at the Leibniz-Institut für Zoo- und Wildtierforschung in Berlin, and his colleague Thomas Hildebrandt, the Head of the Leibniz Institute’s Department of Reproduction Management, was far more definitive. They wrote:

In summary of all medical finding we conclude that Lucy is not fit for travel, neither for long nor for short distances. . . . Stress and even very mild physical activity brings Lucy in an anaerobic metabolic status, which can lead to total decompensation of her respiration and hence general metabolism.

They concluded:

Therefore Lucy should remain . . . . Aside from her ineligibility to travel she is a geriatric patient and would not be able to cope with her new environment (unfamiliar habitat, new caretaker staff, and other elephants). Lucy is receiving a high level of affection and attention from her keepers and veterinarians, which resulted in a specific management and enrichment program adapted to Lucy’s age and health status. She would not survive independently from humans. Ultimate goal is to keep Lucy stimulated and engaged and to provide her with good care for the rest of her live . . . .

Now, let me note that the median age of death for an elephant in captivity in the United Kingdom is 20. For an Asian elephant in captivity in North America, the median age of death is 43, and Lucy is already 47.

The fourth expert to examine Lucy, Dr. Patricia London, reached a different conclusion. Dr. London, an American veterinarian and the founder of the Asian Elephant Wellness Project, concluded that with appropriate cautions, Lucy might well survive a move to an elephant sanctuary in Tennessee. But even though London was the most critical of Lucy’s living situation, she, too, had praise for Lucy’s caregiving team. She wrote:

. . . it is recognized that the staff seems very committed to taking care of Lucy. . . . I do think the current veterinary team is doing a good job monitoring Lucy, managing her pain, and has Lucy’s best interest in mind with everything they do and recommend. They have been very welcoming and open to any and all suggestions made medical-wise for Lucy.

Now, all this is not to give the Edmonton Valley Zoo an A plus grade in elephant care. The experts were all agreed that Lucy would benefit from more exercise, a diet with less hay and fruit and more celery and parsley — wouldn’t we all — better quality sand to lie on, access to a pool or pond of water and far more freedom to roam naturally. And as an Edmontonian, I share Dr. London’s frustration that many of these recommendations were made in the past but were not acted upon. When the City of Edmonton took on the responsibility of caring for an elephant 45 years ago, it needed to ensure that the elephant received the best possible care to the very end of her days.

But to talk about torture and purgatory? Such overheated rhetoric makes it easy to raise money but not easy to make decisions in Lucy’s best interests.

Now, I have dwelt for some time on Lucy’s case because some of you have raised very specific and florid concerns about her well-being in your own speeches and I wanted you all to have the latest independent analysis of her health status from four independent experts hired by Free the Wild.

But Lucy’s case illustrates the importance of Bill S-241 because it will severely limit the ability of other zoos to make the same mistakes the Valley Zoo did 45 years ago. But it also illustrates the limitations of this bill, with its overreliance on American — not Canadian — standards and its easy assumption that if it’s American, it must be better.

When this bill does go to committee, I hope members will push beyond sentiment and make a decision based on scientific evidence. We must be good stewards of the animals in our care and ensure that our zoos and aquariums are fit for purpose for the 21st century. But we must also ensure that we make those decisions in Canada and take responsibility for them here.

Thank you, hiy hiy.

(On motion of Senator Martin, debate adjourned.)

[Translation]

On the Order:

Resuming debate on the motion of the Honourable Senator Kutcher, seconded by the Honourable Senator Boehm, for the second reading of Bill S-251, An Act to repeal section 43 of the Criminal Code (Truth and Reconciliation Commission of Canada’s call to action number 6).

Hon. Julie Miville-Dechêne: I rise to speak in support of the principle of Bill S-251, which was introduced by Senator Kutcher.

At first glance, this appears to be a very simple, very short bill that should be very easy to support, regarding the use of reasonable force to correct a child. Who among us here advocates any form of child abuse? No one, obviously.

How could anyone object to sending a clear, albeit symbolic, message about our commitment to ending all forms of mistreatment, abuse and trauma for Canadian children? Again, no one.

On the other hand, this topic affects most of us personally, whether as a former child or as a parent.

Like many of my generation, I myself experienced physical correction when I was young. I have a vivid memory of the first spanking I received from my mother, at the age of seven or eight, when we lived in France. Even worse were the punishments at school. At that time, corporal punishment was frequently used to discipline children in elementary schools in Paris. I remember classmates being spanked in front of everyone and others being seized by the ear and pulled around the classroom by the teacher. For students, it could not have been more humiliating.

When I returned to Quebec in the 1970s, times had changed, at least at school. I may be a wise and patient senator now, but I was a rebellious teenager. I still remember the stinging slap my mother gave me after I insulted her. Let’s just say that it did nothing to improve our relationship.

I want to add that, although I remember being disciplined like that, it did not cause me any lasting trauma. In fact, like many other children, I’m sure, I was more hurt when my family yelled at me and criticized me. A slap hurts in the moment, but the damage words can do can last a long time. However, I doubt the government will ever be able to legislate what a parent can and can’t say to their children.

Bill S-251 proposes to eliminate the exception set out in section 43 of the Criminal Code, which allows a parent, among others, to use “force by way of correction toward a . . . child . . . if the force does not exceed what is reasonable under the circumstances.”

Although I am in favour of the principle of the bill, I still want to point out three problems worth thinking about.

The first is a political issue that comes up in many of our debates: How far can the government go in regulating private behaviour? Of course, there is no question that the government can criminalize violence against children, as it does for violence against any person, particularly the most vulnerable.

When it comes to “force [that] does not exceed what is reasonable under the circumstances,” however, we are also getting into the area of education, discipline and discretion in the exercise of parental authority. It’s clear that the government can and must protect children from violence, but it also can and must respect parents’ judgment.

[English]

It’s also important to remember that the exception provided at section 43 is already quite narrow. Here are excerpts from a March 2021 letter from Justice Minister Lametti to Heidi Illingworth, the Federal Ombudsperson for Victims of Crime:

The issue of whether or not section 43 should be repealed raises differing and strongly held views across Canada. . . .

As you are likely aware, assault is broadly defined in Canadian criminal law to include any non consensual use of force against another person. This can also include non consensual touching that does not involve physical harm or marks. Section 43 of the Criminal Code is a limited defence to criminal liability for parents, persons standing in the place of parents, and teachers for the non-consensual application of reasonable force to a child. . . .

In 2004, the Supreme Court of Canada . . . held that section 43 is consistent with the Canadian Charter of Rights and Freedoms and the United Nations Convention on the Rights of the Child. It also set out guidelines that significantly narrowed the application of the defence to reasonable corrective force that is transitory and trifling in nature. Moreover, the SCC’s decision provided that teachers cannot use force for physical punishment under any circumstances . . . .

[Translation]

There are many different parenting styles and approaches. I don’t believe that this grand, complex human adventure can be reduced to an exact science with definitive and universal answers that can be applied to any situation. That’s why we have to be careful not to target parenting approaches that we may not like, but that don’t necessarily deserve to be criminalized.

In a similar vein, I would point out that differences exist not only between individuals and families, but sometimes also between cultures. The way children are raised, the role of authority and discipline, and parenting approaches are often shaped by our personal or cultural history. Cultures and family backgrounds also influence the perception and impact of physical correction on children.

Again, I want to reiterate that we should not be condoning child abuse, mistreatment or violence in any way, but neither should we disproportionately target Canadians from minority cultures by removing the narrow exemption set out in section 43 of the Criminal Code. Some parenting styles may not match our own personal preferences. This does not necessarily mean that they are criminal.

[English]

Finally, I note something of a paradox. Many of the people who support this bill argue that we should not fear a wave of new prosecution of parents if we remove the exemption at section 43. This is because, while removing the exemption would technically make any non-consensual touching of children by their parents a criminal offence, everyone realizes this is an absurd situation. For this reason, proponents of the bill argue that if we remove the exemption at section 43, a new set of common-law defences and exemptions would apply, including an exception for minimal offences, rules about necessity, implied consent and others.

So are we really just removing one explicit, codified and narrowly interpreted exemption and replacing it with numerous vague and uncodified exemptions that would achieve the same purpose? In some ways, it could be argued that we are asked to make the Criminal Code less pragmatic and less realistic and that, as a result, courts will have to develop new workarounds. In other words, the change we are contemplating may be more symbolic than substantive.

All that being said, I recognize there is a global movement to remove these limited exemptions, even if it means developing new ones to replace them.

As of 2022, 65 countries have banned corporal punishment. Even in France, Article 371-1 of the Civil Code was amended in 2019.

[Translation]

That article states: “Parental authority is expressed without physical or psychological violence.”

[English]

If the French can make this commitment, perhaps we can as well.

Society evolves, and it’s normal that we adapt our legislation to reflect that change. Sometimes we update our laws to reflect the way we already live, and sometimes they reflect our aspirations. Just because things have always been one way doesn’t mean that we must continue forever.

I believe our laws play a role in setting the tone, and we must trust the institutions to behave reasonably in the circumstances. Thank you.

[Translation]

Senator Yussuff: As you are aware, changing the law to support the bill and all the principles in it is the easy part.

We have to change attitudes. With parents and their children, it is not so easy. In each culture, it is not so easy.

The bigger challenge will be how we educate parents regarding how they treat their child differently than maybe they’ve been brought up to treat a child. When I was young and growing up, for my parents, corporal punishment was the normal thing. But much later, as parents, they realized that was not the right way to go about it. Maybe it didn’t help my behaviour — I’m not sure — or maybe it made me more delinquent. But the reality is my parents did change, and I appreciate that reality. But within our family, which was very large with ten of us, we grew up recognizing we could not treat our children that way. I am grateful today that my daughter grew up in her family without ever having to deal with the fact of corporal punishment.

The bigger question I have is about how we change the attitudes of families, recognizing that some see it as fundamental way for them to raise their children however they choose. This is not an easy thing. Some get their guidance from gospel; some get it from their own family growing up. I know this is not fair, but I thought I should ask you this question.

[Translation]

Senator Miville-Dechêne: That question sums up the very essence of the issue. Laws can do some of the work, and they can be a signal or a symbol. But society changes at its own pace. As you said yourself, sometimes it’s a generational issue, sometimes it’s a cultural issue, but certainly, every family has a different perspective on corporal punishment. How can we address that?

Obviously, this can also be taught in school. I know that in Quebec, new courses are being developed on these civic issues. There is no magic solution. You are asking me an extremely difficult question. The fact remains that children talk amongst themselves, and there can be all kinds of influences that make them realize that a situation isn’t normal. They might talk about it to friends or to a psychologist, and the parents themselves can evolve. It’s not 1960 anymore, like when I lived in France. Things have changed a great deal.

The point I was trying to make is that I agree with the principle of the bill, but it obviously won’t solve all the social issues surrounding it.

(On motion of Senator Martin, debate adjourned.)

[English]

Senator Miville-Dechêne: What I understand from the history of this type of bill, because this is not the first time that this section of the Criminal Code has been called into question, is that the education sector’s reaction has always been that, sometimes, it is necessary to go to those lengths.

I understand that the Supreme Court has said that educators have very little room to manœuvre when intervening. However, in that situation, just as for parents, what concerns me is the issue of restraining a child so they don’t hurt themselves. It is very difficult to have absolute and general legislation to govern human beings.

You’ve all seen your children have a temper tantrum or meltdown, and sometimes we don’t know how to deal with it. However, in my opinion, we should not confuse calming down a child, even clumsily, and using unreasonable force.

That is a good question. In reading up on this issue, I realized that it’s not as simple as it seems. Yes, we have a provision that talks about reasonable force. In 2023, it is symbolically very difficult to use words like that because people always think the worst. But if we eliminate that clause, what does that mean? Are we going to have to build up jurisprudence to determine what’s acceptable and what’s not? There will always be situations that will be a bit of a grey area.

[English]