Introduction
Bill C-15, An Act to amend the Criminal Code and to amend other Acts (the Criminal Law Amendment Act, 2001), was introduced in the House of Commons and given first reading on 14 March 2001. The House of Commons passed a motion on 26 September 2001 directing the Standing Committee on Justice and Human rights to split Bill C-15 into two separate bills. The Standing Committee reported back to the House on 3 October 2001, indicating that it had divided Bill C-15 into two bills: Bill C-15A, An Act to amend the Criminal Code and to amend other Acts; and Bill C-15B, An Act to amend the Criminal Code (cruelty to animals and firearms) and the Firearms Act. It is Bill C-15B that is the subject of this Backgrounder analysis.
The highlights of the Bill C-15B deal with amending the provisions dealing with cruelty to animals, for example by providing a definition of “animal,” creating a new part to the Criminal Code for these offences, and increasing the maximum penalties that are available.
The changes include:
- adjusting the penalties of the cruelty to animal offences;
- setting out the mental element in one of the cruelty to animal offences dealing with failure to provide adequate care;
- clarifying the defences that are available in relation to the cruelty to animal offences;
- adding a new offence dealing with harming a law enforcement animal.
It would seem on the surface that Bill C-15B represents a long and overdue “overhaul” of Canada’s Criminal Code dealing with cruelty to animals. The existing statutes remain unchanged from the 1950’s and, like many things, society’s views have changed over time.
Bill C-15B has raised concern within the “animal use” community because the economic impacts have great potential to disrupt the struggling rural economy. For the sake of this paper the “animal use” community is broadly defined and includes animal use for agriculture, recreation, medical research, law enforcement, and as pets and “working” animals. The “animal use” community is concerned about the possible litigation that could be initiated by animal rights groups directed against current and acceptable animal uses.
ISSUES
1. Codes of practice
The federal government has stated that the intention of the amendments is “to simplify and better organize the existing laws and to enhance the penalties for animal cruelty” and does not target animal use industries, as “these are regulated activities subject to specific technical rules and regulations and codes of practice.”
In the document dated December 6, 2001 titled The Facts About Bill C-15B as it relates to Cruelty to Animals it is stated that “Simply put, no practices that are lawful and accepted today will become unlawful under Bill C-15B”.
However, the fact that Bill C-15B will establish a legal basis to challenge current lawfully recognized or accepted practices in the future is ignored.
The federal government has noted that hunting, fishing, farming, etc., “are regulated activities subject to specific technical rules and regulations and codes of practice.”
However, the majority of the public (including prosecutors) is mostly unaware of animal care and use codes of practice, regulations, etc. (where they exist). What some may consider unjustifiable pain or suffering is often based on perception rather than reality. Not all areas of animal use (eg. farming or pet ownership) and handling activities are “subject to specific technical rules.” Furthermore, regulations/standards can vary between jurisdictions (i.e. municipalities or provinces) and/or by oversight bodies and/or over time.
A situation that illustrates how guidelines vary concerns pets. The Canadian Veterinary Medical Association (CVMA) opposes but does not ban docking the tails/ears of dogs. The British Columbia Veterinary Medical Association (BCVMA) however, bans the practice. The procedures continue to be standard practice for some dog breeds. Similarly, the BCVMA bans the declawing of cats (onychectomy). The CVMA does not because the literature suggests there are no behavioural abnormalities associated with the procedure. Some people argue that it is cruel to let cats outside or leave dogs out-of-doors, situations which prompt many complaints to humane societies. There are no established “standards” to say these practices are right or wrong.
Codes of Practice do not exist for all “farmed animals” in agriculture. Where they exist, they often contain “must” and “should” in regard to animal husbandry. It is unknown how a prosecutor or court would view the “should”. For example, the beef code of practice states: “Injured, sick and disabled cattle should be unloaded in a way that cause them the least amount of suffering.” This is open to interpretation because specific (i.e., “approved”) methods are not cited, much less detailed. The code also states: “minor surgical practices must be conducted by competent personnel using proper equipment and accepted techniques . . . ” It is not intended to be used as a production manual. Slaughter regulations vary between provinces and do not specify who is competent or define what “minor surgical practices”are.
Biomedical research is vital for the health of Canadians. Indeed, most if not all of the major pharmaceutical and surgical advances were discovered through animal experimentation.
The Canadian Council on Animal Care Guidelines for the care and use of experimental animals also use “must” and “should,” words that are necessarily open to interpretation. The definition of unnecessary pain or distress, as cited in the drafts of Bill C-15B, is subjective. For example, what one “expert” considers unnecessary may be acceptable to another.
2. Animals Moved out of the Property Section
The proposed legislation moves the animal cruelty provisions out of the property section. Retaining the animal cruelty provisions in Part XI (Certain Property) section is consistent with the viewpoint of society, legal interpretation of Certain Property and non-governmental animal protection groups. The status of animals as a special kind of property in the current Code is compatible with the view of the majority of Canadians. Were this not so, animals would not be an item of commerce and trade; animal owners would not have a moral or legal justification for many of their actions (i.e., sterilization and euthanasia); and the application of other property offences governing theft or wilful destruction would not apply.
It is assumed that the majority of Canadians view animals as more than mere property items. Unlike inanimate items of property (eg. a car), animals are also sentient beings toward which we have moral and legal obligations.
This viewpoint is already reflected by the placement of animal cruelty offences under Lawful and Forbidden Acts in Respect of Certain Property under Part XI of the Criminal Code. The interpretation of Part XI–Wilful and Forbidden Acts in Respect to Certain Property: “property” means “real or person corporeal property”. (Source: Library of Parliament: “Offenses Against Animals” by John Barnes, October 1985, Substantive Criminal Law Project.Pg. 61) where “corporeal” means “bodily or mortal”. As such, the law already recognizes that animals are more than mere inanimate property and are living beings with the capacity to suffer.
In response to the Crimes Against Animals consultation document (1998), the Animal Alliance of Canada, Zoocheck Canada, the World Society for the Protection of Animals, and the International Fund for Animal Welfare acknowledge that section 446 in the current section (Part XI) “was designed specifically to protect the well-being of an animal for the animal’s own sake.” In practical terms, the current placement in Part XI can be deemed appropriate as demonstrated by successful prosecutions that clearly demonstrate that an owner can not simply do anything to or with their property. This is true of both animals and inanimate objects.
The Department of Justice contends this move has no legal significance. If true, why has this been proposed? Why the hesitation to leaving the provisions in Part XI, especially when the department’s stated objective can be achieved without this revision? The move, coupled with the proposed definition of animal, is a radical departure from the common law understanding of animals as property plus the conventional thinking on the relationship between animals and people. This would act to undermine the legal foundation of animal uses by providing the basis for giving animals’ independent legal status.
The international animal rights movement consistently argues that legal rights for animals cannot be obtained until animals are no longer considered property under the law. With the passage of Bill C-15B, Canada will become the only country to designate crimes against animals as other than a property crime.
3. Proposed placement (Section V.1)
Justice officials explain that a new section has been created in response to the concerns expressed by its placement in Part V in Bill C-17. The Department fails to note that the preferred placement by many of those who expressed concerns was to maintain the provisions in Part XI (for the reasons cited above). As stated in the Department Fact Sheet for Members of Parliament (2001): “In fact, since 1953, all animals have been protected from unnecessary pain, suffering and injury, whether or not they have the status of property. The proposals in Bill C-15 simply update the designation of offences to accord with the existing rationale of the legislation.” Why then is the provision being moved?
This move creates optics to raise attention about, and fuel debate around, the status of animals but some claim this is irrelevant because legally they would be treated no differently than today. By moving the offences out of the property section, the express and up-front protections provided through “legal excuse, justification and colour of right” have been lost to the accused. Removal of such important up-front protections effectively means the Crown will have less to prove beyond a reasonable doubt before an accused is forced to provide defence evidence.
In addition, the up-front and express protections provided by virtue of subsection 429(2 ) namely: “legal justification excuse and colour of right” is more than is provided by subsection 8(3) according to the Supreme Court of Canada in the Holmes decision. For instance, “colour of right” in 429(2) serves as an exception to section 19 of the Criminal Code in recognizing reasonable mistakes of law, in addition to the more limited mistakes of fact provided for in subsection 8(3)-see Ontario Court of Appeal in Howson and Hemmerly. An example of mistakes of law in this circumstance would be in cases of a change to rules, regulations or recommended procedures which an animal handler is, through no fault of their own, unaware of and therefore is not following.
If subsection 429(2) and subsection 8(3) are the same, then why does 429(2) exist at all? If the two subsections are the same, then why does the proposed legislation not include 429(2) wording explicitly in Part V.1? Why is the legislation only prepared to make express reference to subsection 8(3), which applies to all criminal offences, instead of 429(2)?
4. Definition of “animals”
The currently proposed definition of “Animal” as: “Any vertebrate, other than a human being, and any animal that can feel pain” is considered by the Criminal Law Association, among others, to be far too broad. It will create great problems in the courts.
The government acknowledged before committee that under the current law (based on common law definition developed through case law) the provisions have tended to apply to mammals yet it argues that this more definitive statutory definition in fact narrows the definition.
In practice, the provision of this explicit statutory definition will broaden those “animals” considered under the law. Again this will open the courts to “test cases” in order to establish new case law. Scientific experts can not agree on what animals feel pain, putting prosecutors and the courts in an unfair position of deciding what animals should and should not be included under this statutory definition. Further by its explicit nature this definition is broader than that in provincial statutes or that of expert bodies such as the Canadian Council on Animal Care.
The Department of Justice argues that moving the animal cruelty provisions out of Part XI of the Criminal Code is not a radical departure, that the movement simply updates the Criminal Code so that it accords with the existing rationale of the legislation. This is part and parcel of the argument discussed above that the 1953 amendments defined animal cruelty in terms of animals’ capacity to experience pain, irrespective of their status as property. Consistent with this position, the Department of Justice argues in favour of introducing a definition of “animal” to include “any animal that has the capacity to feel pain.”
Leaving aside the faulty foundation for this argument (i.e., the significance of the 1953 amendments as discussed above), the proposed definition will open a Pandora’s box of problems for those involved in bio-medical research, fish farming and fishing (to name a few).Historically, animal cruelty provisions concerned mammals and birds. The proposed definition opens the door to invertebrates and cold-blooded species.
Even though the onus will still rest on the Crown to establish that the animal involved in any prosecution “has the capacity to feel pain,” the potential for litigation remains. There are animal rights activists and scientists devoted to proving that a wide assortment of species have such a capacity. A recent study in the United Kingdom has suggested that slugs, snails and cockroaches feel pain. There are those who cite evidence that fish and crustaceans experience pain.
The so-called evidentiary burden on the Crown to establish that a particular species feels pain will simply be no burden at all, especially given the enormous resources, organization and drive of animal rights activists.
5. Nuisance Charges/Prosecutions
By applying section 507.1 under Bill 15A the department argues that legitimate animal use will be protected from nuisance and vexatious prosecutions.
However, this screening mechanism will only apply to private prosecutions not those laid by an enforcement agency such as a Humane Society or SPCA authorized to act as a peace officer. It is widely perceived that Humane Societies can and have been “taken over” by animal “rights” groups/abolitionist ideologies. Many have policies opposing various forms of animal use. This legislation will open the door for authorized organizations to challenge (with the intention to limit or ban) animal uses in the future. For example, the Canadian Federation of Humane Societies is actively involved in a campaign to ban the use of animals in circuses.
Animal “rights” groups, devoted to the abolition of all animal use by humans, advocate the use of court proceedings as a blocking mechanism to tie up those legitimately involved in using animals or as a means to give visibility to their cause. Past examples in Canada include the International Fund for Animal Welfare against the East Coast Seal Hunt, Global Action Network against the Minister of Agriculture regarding “bloodless bull fights” and Lifeforce against the University of Western Ontario.
Victoria Earle, the CEO of the Ontario Society for the Prevention of Cruelty to Animals, said in a February 21, 2002 letter to the Globe and Mail said that “Ranchers and anglers can rest easy,” as she attempted to reassure the animal use community that there is no hidden agenda by animal welfare groups. To the contrary, the trend towards traditional humane societies to be taken over by more extreme members of the animal rights movement appears to continue unabated.
The stated objective of many animal rights groups is the complete elimination of all animal use by people, and provision of “rights” and equality to animals. A clear example of this new type of extremism is expressed by Michael W. Fox of the Humane Society of the United States who said: “The life of an ant and that of my child should be granted equal consideration.” One wonders if the kindly people who donate to humane societies are aware of how often these groups become hi-jacked by animal rights zealots.
Prosecutors may not be familiar with legitimate animal practices. Perception could therefore play a role in laying charges and in proceeding with prosecutions. Those who could be called upon as “expert” witnesses in court may have different opinions on current practices and standards of care (i.e., the CVMA vs. the BCVMA regarding declawing) and/or on what “animals” can “feel pain”.
Even if a case never makes it to court, considerable time, effort and resources could be involved in investigating the validity of a charge. Public pressure following high profile animal cruelty cases is vociferous. A Toronto defence lawyer suggests this may cause investigators “to lay charges and get evidence after”. [Toronto Star, March 16, 2000]
If the provisions of Bill C-15B as amended are implemented as proposed, this could lead to a significant increase in time consuming and expensive nuisance charges. By shifting the burden of proof, lowering the level of defence, and increasing the penalties the new law will become an attractive tool to those who wish to challenge currently accepted practices and animal uses. This in turn will place costs on those accused both in terms of time and legal fees as well as in terms of damage to their business and personal reputations created by charges (whether they are eventually found innocent or not).
In terms of the rural community and agriculture it is the livestock sector that is the most profitable at the present time. Livestock receipts are overtaking grain receipts as the top income source for farmers and rural communities. Given the fragility of the farm economy, the uncertainty posed by Bill C-15B will only hurt rural communities.
Discussion
The greater exposure to prosecution that animal users and owners will face as a result of the new amendments cannot be minimized. Animal law specialist, Catherine Wilson, in welcoming the proposed changes in Bill C-17 in the June 12, 2000 edition of the Law Times, stated that the amendments will make people take a good hard look at how animals are treated in food production and medical research. When asked about Bill C-15 and its potential impact on cattle branding, Tove Reece, head of the Edmonton-based Voice For Animals stated, “I sincerely hope the new law does lead to [court action]. We need to fundamentally reconsider some of these practices. I think that’s what this law is for, to challenge the thinking.”
The federal Minister of Justice has told the House of Commons that “what is lawful today in the course of legitimate activities would be lawful when the bill receives royal assent”, and that the proposed changes “do not in any way negatively affect the many legitimate activities that involve animals, such as hunting, farming, or medical and scientific research.” Such assurances (however well intended) are misleading. The new provisions will not prevent legitimate activities from being carried out because the law only forbids illegal activities. However, these provisions could well serve to narrow the scope of what constitutes legitimate activities.
In 1988, the Law Reform Commission of Canada was very alert to the risks involved when discussing the need to update the current animal cruelty provisions (along lines not unlike those proposed amendments in Bill C-15). It was for that reason that the Commission maintained express and up-front defences for animal users. Such defences exist today. The Department of Justice has provided no explanation why similar express and up-front protections cannot be retained in the new amendments. In the absence of such protections, the irresistible conclusion is that the government intends to promote or facilitate, or at the behest of the Department of Justice is unwittingly promoting or facilitating, an animal rights agenda.
Recommendation
Based on the strong arguments posed by the “animal use community” it is obvious that Bill C-15B, in its present form opens legitimate and accepted animal uses to new litigation risks. The existing legislation protecting animals and preventing cruelty is adequate and should be retained. Bill C-15B is superfluous and unnecessary.
