In October 2019, the Schulich School of Law, in partnership with Animal Justice, hosted Canada’s first national animal law conference. The Canadian Animal Law Conference 2019 was first envisioned as focusing on developments in domestic law, as it governs our legal relationships with nonhuman animals. But when the conference was announced, interest and submissions came from around the world. The scope and success of the event, which sold out months ahead of time, made one thing very clear: animal law is on rise, in Canada and throughout the world. In the following paragraphs, I offer some reflections on the rapid, and seemingly unstoppable, growth of animal law, a discipline that used to sit at the margins of legal academia and practice.
The Growth of a Discipline
It’s been 15 years since Dalhousie Law School first offered a course in animal law, designed and delivered by now-retired Professor Vaughan Black. Today, about half of Canadian law schools offer a similar course. The situation is even more interesting in the United States, where top-tier law schools offer dedicated programs in the subject. At Harvard Law School, it’s the Animal Law & Policy Program, which houses a hands-on clinic, while at Yale, students can enroll in the Law, Ethics & Animals Program. Similar centres are housed at Oxford and Cambridge in the United Kingdom. What was once fringe is now commonplace.
Developments in legal scholarship have followed a similar evolution; niche has become mainstream. There are several subject-specific law journals devoted to the subject (too many to list here), while general subject matter journals regular feature animal law articles (including, for example, volume 41 of this journal, which included not one but three animal law pieces). Last fall, Canada saw its first special issue of a journal devoted entirely to animal law. Beyond Humanity: New Frontiers in Animal Law, in the Canadian Journal of Comparative and Contemporary Law, featured a foreword by the Hon. Senator Murray Sinclair, and nine articles by prominent scholars of animal law, from Canada and abroad.
Developments Outside Academia
The growth of an academic discipline does not happen in isolation, but rather, reflects social, cultural, and legal developments. Like any social movement, animal law’s momentum is not limited to the academy. Legal evolution around our treatment of animals seems to reflect what looks like a shift in cultural and social attitudes. 2019 was a big year for Canadian animal law and a number of recent successes might be attributed to these changing attitudes.
For example, the majority of Canadians no longer support the keeping of whales and dolphins in captivity for entertainment purposes. In 2019, Canada became the first country in North America to criminally ban the display of cetaceans (certain marine mammals including whales, dolphins, and porpoises) for entertainment, as well as participation in the international trade in these animals. Along similar lines, Canada — formerly the largest importer of shark fins outside Asia — became the first G20 country to ban the import and export of the products of shark finning, a cruel practice affecting an estimated 73 million sharks every year.
Also in 2019, we saw the first substantive revisions to the Criminal Code provisions relating to cruelty to animals in more than half a century, with Parliament strengthening the prohibition on animal fighting and closing a loophole related to the offence of bestiality. This last change was prompted by a 2016 Supreme Court of Canada decision, providing a limited and narrow definition of bestiality, that did not take full account of the impacts on the animal involved. Notably, the hearing of that appeal involved an unprecedented first for animal law in Canada: the granting of intervener status to Animal Justice, Canada’s only national legal advocacy group for animals. In agreeing to hear the group’s submissions, the Supreme Court confirmed the importance of considering animal interests in our legal system and put Animal Justice, whose work ranges from litigation, to education, to political lobbying, and more, on the map of the Canadian legal landscape.
To be clear, animal law in Canada is not a series of success stories. Given the anthropocentric, liberal (individualized) nature of our legal system, every win for animals is meaningful, and should be celebrated. But the truth is that to date, the victories are far outnumbered by the ways that the legal system harms nonhuman animals and the many challenges involved in advocating on their behalf.
Animals, of course, do not speak our language (although they certainly do have voices and express their interests and preferences as well as their pain and suffering). Nor are they recognized as valid participants in the legal system (in legal terms, they do not yet have “standing,” or the right to sue on their own behalf). As a result, getting their cases before a judge presents unique challenges — challenges that have prevented courts from ruling on matters such as the ongoing captivity of Lucy, the lone senior elephant at the Edmonton Zoo, whose captivity was the subject of unsuccessful legal challenges in 2011 and 2019 (with leave to appeal to the Supreme Court of Canada dismissed in both cases), and whether the sale and use of glue traps constitutes “unnecessary suffering” in contravention of the Criminal Code (more on this language below).
Speaking of the Criminal Code, while the 2019 amendments are an improvement, the country’s criminal law leaves much to be desired where animal interests are concerned. That is because the Code does not prohibit the causing of animal pain and suffering, as a general matter. Instead, criminal liability results only where an individual “wilfully causes … unnecessary suffering.” That language has consistently been interpreted to exclude most of the cruel practices that animals endure on a daily basis in Canada. It has been suggested, for example, that the clear pain and suffering inherent in sporting activities like calf-roping (or “tie-down roping”) — a regular event at the annual Calgary Stampede — is exempt from the application of the Criminal Code, despite repeated objections by animal welfare advocates and the clear terror in the animals’ eyes when they are caught, pinned to the ground, and three of their legs are tied together. (Doing this to your dog, on the other hand, would probably attract criminal liability.)
The same exemptions go for animals farmed for food. Without getting into the details of what constitutes an accepted industrial practice (again, things you would likely not imagine doing to your dog), it’s worth noting that only the most egregious cases, where animals go to waste due to poor farming practices, might attract criminal liability. What’s more, aside from the Criminal Code, which rarely applies, the welfare of animals on farms is not directly regulated by law. Instead, conditions on farms are governed by industrial codes of practice, with ambiguous legal status.
It gets worse. Instead of working to better the lives of farmed animals (approximately 800 million of whom are killed for food annually in Canada) and aligning the law with public sentiment (the vast majority of the population wants to know that even the animals they eat are treated well), Canadian legislators are currently debating and passing laws to shield farming practices from public view. Instead of promoting transparency, these laws, known colloquially as “ag-gag” laws, limit constitutional rights and freedoms and suppress information that the public relies on to make choices as consumers and as participants in a healthy democracy.
I have not mentioned the fur industry, the use of animals in research, or the many other ways that the law oppresses nonhuman animals. But I hope I have made it clear that the rising field of animal law, while its successes should be celebrated, has its future work cut out for it.
The state of Canadian law as it affects nonhuman animals is lacking. But the growing popularity and acceptance of animal law as a legitimate field of study, inquiry, and practice, means that the stage is set to pursue the legal challenges outlined above. In the meantime, I’ll look forward to the Canadian Animal Law Conference 2020 (next September in Toronto), where I hope to continue to build bridges, plan ahead, and contemplate ways to make Canada a better place for nonhuman animals.