A once-obscure area of Western law — animal rights — is having a bit of a moment.
In May, New Zealand passed an animal welfare law that formally recognizes animals as “sentient” — capable of suffering pain and emotional distress – and includes a ban on cosmetic testing. In the U.S., the Nonhuman Rights Project has been filing lawsuits on behalf of animals in captivity in an attempt to raise them to the legal status of “persons.” The project scored a backhanded victory in July when a New York judge dismissed its lawsuit on behalf of two lab chimpanzees. The judge ruled that, while legal precedent denied Hercules and Leo the right of habeas corpus, the lawsuit itself was perfectly legal — that, in the words of American law blogger Ken Strutin, “animals can petition, they can be represented and … they are juristic beings.”
France passed a law earlier this year declaring animals sentient – raising them up from their status as furniture under the civil code passed by Napoleon in 1804. In doing so, France was following in the footsteps of Germany, Austria and Switzerland.
In Canada, things are moving more slowly but in roughly the same direction. In July the B.C. government formally incorporated a national code of conduct for dairy operations into its anti-cruelty law — a direct response to a video showing workers at a major dairy operation beating cows with chains and sticks. Nova Scotia last year ramped up penalties for animal cruelty and gave authorities the power to issue summary offence tickets. And in Quebec — frequently cited as the “best place in Canada to be an animal abuser” by the Animal Legal Defence Fund – a New Zealand-style law was tabled in June that will even protect goldfish.
“The biggest change (in the bill) is that up to now, an animal in Quebec is considered as a movable, like a piece of equipment,” Quebec Agriculture Minister Pierre Paradis said in an interview with The Canadian Press earlier this year. “It goes from that to being a sentient being.”
In a 2014 interview with National magazine, University of Toronto law professor Lesli Bisgould said there have been attempts over the years to take animals out of the “property” section of the Criminal Code, which would give them more rights. She says MPs have told her there is tremendous public support for doing so, but her sense was that politicians knew industry would help swing the votes against any such effort. “They could only have been punished politically,” she said.
Meanwhile, industry casts a gimlet eye over the efforts of animal rights groups.
In France, a powerful farm lobby claimed the new law could undermine the interests of farmers, particularly cattle breeders.
“There’s huge pressure from these so-called animal welfare groups,” says Ron Folkes, an Ontario lawyer who represents livestock processors and transporters. “Their agenda has less to do with the welfare of animals and more to do with the elimination of the processing and consumption of meat in this country. It’s a political agenda, driven by hidden-camera videos and social media.”
The agenda notwithstanding, activists admit they’re not moving the needle on animal rights law nearly as fast or as far as they’d like to. While Quebec’s proposed new law caused quite a stir with its harsh penalties, including threats of jail time and fines of up to $250,000, it will not close the divide between farm animals and pets.
The Quebec bill calls for livestock to be treated “in accordance with generally recognized rules” – and that, according to the head of animal advocacy for the head of the SPCA in Montreal, means battery chicken farmers need not worry about retooling.
“Whatever the (food) industry does on a wide scale is exempt,” Alanna Devine told The Canadian Press. “I don’t know if this means (animals will) be treated with dignity and respect.”
“Legally, nothing changed with the addition of the word sentient,” says Camille Labchuk, director of legal advocacy at Animal Justice. “The requirement to consider an animal’s biological needs was in (Quebec’s) old civil code as well. Every province’s laws refer to animals as being ‘sentient’ in some ways … It’s important symbolism but it’s still just symbolism.”
Stevan Harnad, Canada Research Chair in cognitive sciences and researcher with the International Research Group on Animal Law (GRIDA) at UniversitĂ© du QuĂ©bec Ă MontrĂ©al, nevertheless sees it as something more. “You can’t even talk about ‘inert property’ having rights. So there’s some hope for expansion of those rights now.”
Peter Sankoff, a University of Alberta law professor, says even symbolic legal changes can come alive in the courtroom.
“Many of the principles expressed in the Charter of Rights were intended originally to be symbolic, but interpretation by the courts made them something more,” says Sankoff, who has co-authored seminal texts on animal law. “Symbolic powers frequently turn into real powers.”
In the meantime, the courts may have handed the animal rights movement a powerful new legal weapon when nobody was looking.
Activists have been trying for years to convince the Valley Zoo in Edmonton to retire Lucy, a 40-year-old Indian elephant, to a sanctuary in a warmer climate. In 2011, the Alberta Court of Appeal heard an application by Zoocheck Canada to find the City of Edmonton in breach of provincial law for failing to protect Lucy’s health. Zoocheck lost on process; as Justice Frans Slatter wrote for the majority, the law is reluctant to grant relief in such cases because it’s the Attorney General’s job to pursue legal action in the public’s interest.
A year later, the Supreme Court of Canada’s ruling in Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society recognized the right of third parties to bring such cases before the courts even in situations where the case could have been brought forward by someone else.
“The Supreme Court said that the proposed suit has to be a reasonable and effective way to bring the case to the court’s attention — but not necessarily the only way,” said Ottawa-based municipal law practitioner Scott McAnsh, who acted for the City of Edmonton in the Lucy case. “The decision speaks directly to animal rights law.”
It’s not hard to see how. Animals depend on the Crown and regulatory agencies to protect their rights – where they have rights. Without third parties such as Zoocheck and the Nonhuman Rights Project speaking for them, animals aren’t likely to get their cases before a judge.
“The main difficulty with such cases is the obvious one — it’s hard to prove abuse when the victim can’t talk,” says Sankoff. “If you’re lucky you might have veterinary evidence. But private citizens don’t have search warrant power. If the regulatory agencies don’t want to inspect a facility, nobody can make them do it.”
“So the next step should be to expand the role of animal advocates — for them to sue in the public interest on the animal’s behalf,” says Ziyaad Mia, a professor at Osgoode Hall. “It opens the door.”
Doug Beazley is an Ottawa-based journalist and a regular contributor to PracticeLink.