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Dalhousie Law Journal

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Archives for animal law

DLJ Podcast – Ep 27 – Sarah Frame – Sinking Mink

Join chief student editor, Thomas, and recent Schulich School of Law graduate, Sarah Frame, as they explore Sarah’s DLJ article, “Sinking Mink: An Argument for Ending the Mink Industry in Nova Scotia.”

Sarah and Thomas discuss the history of fur farming in Atlantic Canada, the animal suffering and environmental damage caused by the fur farming industry, and potential paths to abolishing mink farming in Nova Scotia.

Resources:
Sarah’s DLJ Article: “Sinking Mink: An Argument for Ending the Mink Industry in Nova Scotia” by Sarah Frame (dal.ca)

 

The (un)constitutionality of Ontario’s new ag-gag legislation

By Jodi Lazare
Assistant Professor of Law – Schulich School of Law
jodi.lazare@dal.ca

 

In June 2020, the government of Ontario adopted the Security from Trespass and Protecting Food Safety Act, 2020. The Act is aimed at a worthwhile objective—the protection of the safety of Ontario’s farmers and of the food system. Unfortunately, by limiting expression, the bill poses a serious risk to the constitutional rights and freedoms of Canadians.

In the days leading up its adoption, I testified before the Standing Committee on General Government, setting out my concerns with the bill. What follows is the text of my submissions, with some modifications for clarity:

As someone who has taught constitutional law at a Canadian law school since 2014, and Animals and the Law since 2017, I am concerned that Ontario may be on the verge of adopting a law that would not survive a constitutional challenge. In February, I signed a letter to this effect, along with more than 40 other legal experts. Here, I flesh out some of the concerns expressed there.

 I will focus on the two parts of a constitutional analysis, starting with whether the legislation limits Charter rights. It is pretty clear to me, and to others, that Bill 156 indeed violates the Charter.

 Section 4(6) of the bill makes it an offence to gain entry onto a farm, or other agricultural or animal use premises, like a slaughterhouse, under false pretences. From a constitutional perspective, the provision dictates what someone is and is not permitted to say. In other words, it targets a particular message—a misrepresentation—and says, “you cannot say this.” That is a clear violation of freedom of expression.

 But more significant, perhaps, is the effect of the prohibition, which is that it limits the ability of undercover journalists, for example, or employee whistleblowers, to share information with the public.

 To gain access to an industrial farming operation, an undercover journalist might misrepresent their identity—a requirement when many farms are not open to the public without an invitation. Entry under false pretences, in order to document the treatment of animals on farms, becomes the only way for journalists, and animal rights activists, to ensure that Canadian consumers understand the consequences of their purchasing choices and can make informed choices about they buy, what they eat, and what they support with their dollars.

 In the United States, where similar laws, known as ag-gag (agricultural gag) legislation, have been repeatedly ruled unconstitutional, these kinds of investigations have led to legislative reforms regarding animal farming and food safety.

 The same is true of dietary choices; research suggests that the majority of Americans who change their diets to include fewer animal products do so as a result of what they learn about commercial farming and the treatment of farmed animals.

 Regardless of one’s choices upon being confronted with heartbreaking images of farmed animals, the bottom line is that every person has a right to the information on which to base those choices. Indeed, the Supreme Court of Canada has been unequivocal about the fact that the Charter protects not only the right to speak, but also the right to listen, and to receive the kind of information that influences personal consumer and dietary choices.

 Bill 156, in section 5, prohibits interfering with a vehicle transporting animals to slaughter and interacting with an animal on a vehicle. A quick read of the provision suggests that it is in direct conflict with the Charter right to freedom of peaceful assembly. It is telling people—animal rights activists and members of the Save Movement, who regularly demonstrate outside of slaughterhouses and whose presence on public roadways might interfere with the movement of a vehicle—that they cannot hold those gatherings.

 But I would argue that the transport provision also limits freedom of expression. People who protest outside of slaughterhouses—who approach transport trucks with animals on them—are carrying out a particular expressive activity: the act of what they term “bearing witness” to the final moments of animals’ lives, attempting to bring them some kind of comfort, and documenting and sharing what they see with members of the public. Again, the law tells them they cannot express themselves in this particular way.

In both cases (false pretences and transport), the expression in question is political. It is also truth-seeking and information sharing. These are the purposes of freedom of expression in Canada. It is expression on an issue that’s deeply meaningful to activists and, as American courts have recognized, a proper subject for public debate.

 In Canada, courses on animal law are now offered in at least half the law schools across the country. I have given public lectures on the subject to full auditoriums. This is a subject that people care about—morally, legally, and politically.

The expression being limited here is what I would characterize as “high value speech,” a concept I am borrowing from the Supreme Court of Canada, which has said multiple times that political speech lies at the core of freedom of expression, itself one of our most fundamental freedoms. What that means, in practical terms, is that restrictions on that speech will be harder for the government to justify—the second part of the constitutional analysis.

 When a claimant makes out a limit to a constitutional freedom, the Charter dictates that the burden shifts to the government to bring evidence demonstrating that the limit is justified “in the interests of a free and democratic society.”

Justification is a complex, multiple-step test, which can easily lend to confusion. What I put to you, in simple terms, is that the provisions dealing with false pretences and interference with transport vehicles are not rationally connected to the legislative objective.

The bill and the accompanying materials are very clear that the objective here is to protect farmer safety, animal safety, and biosecurity. To prevent the risks, in other words, associated with people trespassing onto farms.

As I understand things, however, trespassers are not gaining access based on false pretences. They are not posing as employees. They are not undercover investigators, or journalists. They are protestors. They do not get permission, based on the truth or on a misrepresentation, before they enter farms. They simply enter, or trespass.

The false pretences provision, then, seems to be aimed at something else. Something more sinister, or covert—like those who might pose as employees in order to act as whistleblowers.

 The difficulty here is that there is nothing to suggest that these individuals might threaten biosecurity. They are not the cause of the mischief being targeted, in other words, which means that limiting their speech is not rationally connected to the legislative purpose. And that is enough for a constitutional challenge to succeed. It’s also the basic reasoning underlying at least three of the American cases dealing with similar ag-gag legislation restricting entry onto a farm based on a misrepresentation.

The false pretences provision is also not minimally impairing, another constitutional requirement. There are ways to achieve the legislative objective here, that have less of an impact on fundamental freedoms, such as simply raising the penalties for trespassing or expressly prohibiting the introduction of biosecurity threats, like the federal private member’s Bill C-205 would do. Both of these things impair rights less than the current form of the legislation. And that, again, is enough for the law to fail.

I would also argue along similar lines with respect to the transport provision. Justification is an evidence-based analysis. To my knowledge, and at least one Canadian judge has agreed, there is no evidence that protestors outside of slaughterhouses are introducing any kinds of contaminants to the food system or endangering the safety of animals headed to slaughter. So again, no rational connection between the prohibition and the legislative objective—enough for the law to fail.

There is a lot more to say about Bill 156. Others have made the case that it is bad for animals and bad for democracy—that the bill shields the entire animal agriculture industry from public scrutiny when what is really needed is more transparency for an industry that self-regulates its treatment of animals. But as far as the Charter goes, the analysis sketched out here should suffice to demonstrate that Ontario likely just adopted an unconstitutional law. What happens next will depend on those willing to use these arguments to challenge the law in court and on the judges that hear them.

Jodi Lazare, DCL, is an assistant professor at the Schulich School of Law at Dalhousie University, where she teaches Constitutional Law, Animal Law, and Family Law.

 

The State of Animal Law in Canada – Progress and Challenges

Jodi Lazare – Assistant Professor of Law, Schulich School of Law

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.

Challenges

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.

Looking Ahead

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.