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Is removing animal cruelty offences from within the "Property" section of the Criminal Code the solution to ensuring animals are better protected by the legal system?

February 15, 2017

 

I hear a lot of people say that, if only animals were not considered mere property in Canada’s Criminal Code, but sentient beings with rights, they would be better protected or served by the courts. I cannot picture exactly how granting animals legal rights would work in court so I don’t know if it would be the ultimate solution, but I don’t think so. Removing animals from within the property section in the Criminal Code would certainly be a philosophical victory, would provide greater clarity about their moral status, and would probably provide greater protection to animals who are not “owned”, but until more people’s views of animals change, I don’t think it would be the remedy that some envision. As one of my professors once said, “the law is pretty wallpaper used to cover ugly cracks,” which I interpreted to mean that the law will only work to the extent that those writing the legislation and working within the legal system will allow. Further, the legal system is complex, and changes to it do not happen easily or quickly. What this means is that people working within the system as it currently exists need to know how to provide the best representation possible for animals within those parameters. I think that, until recently, that did not happen. But great strides have been made in recent years, coinciding with the changes in the way people view animals. Let me explain, and in addition to the links contained in the document which will lead you to more information, I’ll also provide links to further reading below.

 

Despite the fact that crimes against animals are currently contained in the Criminal Code under the heading of “Wilful and Forbidden Acts in Respect of Certain Property” (meaning that animals do not have legal rights in Canada), there are many ways in which lawyers can, and currently do, intervene on animals’ behalf in legal arenas. For instance, more and more often, lawyers such as Peter Sankoff, law professor at the University of Alberta, are educating people (not just law students) about the law as it relates to animals and representing animals in court. Rebeka Breder, a lawyer who specializes in animal law, recently opened a practice in Vancouver dedicated solely to the practice of animal and pet law. Dr. Rebecca Ledger is an animal behaviourist who provides expert testimony in court regarding animal behaviour. Her work is important in at least two areas: 1) assessing and defending dogs who are on death row after being declared “dangerous” or “vicious” and 2) providing expert testimony showing that certain behaviours in dogs demonstrate that they are neglected or suffering from physical or mental distress. The services that animal behaviourists provide to animals in court is a game-changer for animals, so I’ll talk more about this subject in my next blog post.

 

Another way in which animals are represented in court is by lawyers working with animal protection-related organizations. Animal Justice sought and was granted intervenor status in the Supreme Court of Canada with regard to a case that would define what constitutes bestiality in Canada. The Lexus Project is an organization from the United States that provides legal defence for dogs. I had the opportunity to work with a colleague, lawyer Bernard Raymond of “Clanimal,” to garner the assistance of The Lexus Project with a case that happened in Quebec. The case involved a dog who was on death row for biting someone after being ordered to do so by his owner during a fight the dog’s owner had with another man. A lot of work was done behind the scenes, but I firmly believe that telling the city involved that The Lexus Project was prepared to intervene (for which I will be eternally grateful) is what resulted in the dog being properly assessed and released to be adopted to a new owner.

 

Crown Prosecutors and Attorneys, such as Edmonton’s own Christian Lim, are becoming experts at representing animals in court, and they, in turn, are training other prosecutors to do the same. Calgary has prosecutor Gord Haight. Ottawa has Crown Attorney Tara Dobec. As contributing members of the Canadian Federation of Humane Societies’ National Centre for the Prosecution of Animal Cruelty (NCPAC), Christian Lim and Alexandra Janse, a prosecutor in British Columbia, work to represent animals in court and to educate other prosecutors about how to do so. I cannot say enough positive things about the NCPAC. Until recently, many prosecutors did not understand the gravity of animal cruelty and those who did were often ridiculed for taking on animal cruelty or neglect cases, which they did “off the sides of their desks.” Judges are now taking crimes against animals more seriously as a result of prosecutors learning what to do in court to represent them, including bringing in expert witnesses. The sentences imposed do not necessarily demonstrate that point, but that is another (complex) situation, which I will talk about in more detail in an upcoming blog post.

 

To summarize, removing animals from the “Property” section in the Criminal Code does not automatically grant them rights, which would take, in my estimation, a long, uphill battle. Despite the fact that animals do not have rights, there are currently many ways in which experts concerned about animals may represent them in court. Just google any of the names mentioned above and you will find a plethora of material demonstrating how their work has resulted in impressive legal representation and protection for animals, including precedent-setting decisions. Educating prosecutors is paramount to ensuring that animals get the best legal representation possible.

 

The fact that animals are currently considered “property” for the purposes of the Criminal Code does not mean that the law does not acknowledge that animals are sentient beings. Their sentience is implied by the fact that it is illegal in Canada to cause animals (or “permit to be caused” if you are the animal’s owner) unnecessary pain, suffering or injury, or to neglect an animal. Designating animals as property under the law actually provides them some protection that they wouldn’t otherwise be afforded, because “owners” are legally responsible to ensure they do not harm, or allow others to harm, the animals in their care. Strengthening the legal obligations of animal owners in the Criminal Code would be a very worthwhile goal. Lobbying our provincial governments to provide those working within the legal system the tools they need to mount the best legal representation possible for animals is one area I think we should be focusing our energy while we continue to pressure our federal government to improve Canada’s animal cruelty legislation. Write to your province’s Minister of Justice to ask if they are aware of the National Centre for the Prosecution of Animal Cruelty and whether prosecutors are being provided with the training they need to give animals the best representation possible in court.

In my next blog post I will talk about what I believe is the most urgent change required to Canada’s federal animal protection legislation -- removal of the word “wilful” from the animal protection sections in the Criminal Code. Please sign and share the petition and check out the other links below, and thanks for reading!

Charlene Myers,

Founder, Animal Cruelty Legislation Advocates Canada

 

Please click on the link below to sign the petition asking Canada’s Justice Minister to immediately review the animal cruelty sections in the Criminal Code, which she promised to do after the defeat of Bill C-246:
https://petitions.parl.gc.ca/en/Petition/Details?Petition=e-718

 

FURTHER READING:
Thesis paper: “The History of Animal Welfare Law and the Future of Animal Rights”

 

National Centre for the Prosecution of Animal Cruelty’s “Introduction to Animal Cruelty Prosecution in Canada” manual

 

 

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