Improving Canadian Federal Anti-Cruelty Animal Legislationby Suzana Gartner

February 6, 2014

Ontario Bar Association –Animal Law Institute

• Lack of protection for animals against violent acts;

• Cases in media ignite public debate;

• Widespread requests to update law;

• Largely unsuccessful Parliamentary processes;

• Remains a controversial issue.

Weak Federal Anti-Cruelty Laws result in:

• Maintain a just and peaceful society;

• Keep individuals safe from harm;

• Prohibit behavior that threatens serious harm to individuals and society.

Social Justice goals of Criminal Law:

• Research links humans who abuse animals and serious domestic abusers

Animal Law & Social Justice:

AscoineLoring & BoltonMcClellanPeterson & FarringtonRibbans

• Studies demonstrate animal abusers will go on to commit more serious crimes against humans;

• Strong anti-cruelty animal legislation can deter other forms of violence in society.

Animal Law & Social Justice:

R v Menard:

(1978) 43 C.C.C. (2d) 458 (Que CA): • Operator of an animal shelter killed the dogs by gassing them to death by use of motor vehicle exhaust (cheapest method);Animals were conscious for at least 30 seconds and experienced pain and suffering and burns from the intense heat; Found guilty for killing animals…….Sentenced to……………..Lamer JA wrote what became the leading case interpreting the generalAnti-cruelty provision and the concepts of “unnecessary” for modern times.

This case illustrates how weak convictions are not a deterrent to animal abuse .

R v Menard (1978) 43 C.C.C. (2d) 458 (Que CA):

The animal is inferior to man, and takes its place within a hierarchy which is the hierarchy of animals, and above all is a part of nature with all its "racial and natural" selections. The animal is subordinate to nature and to man. It will often be in the interests of man to kill and mutilate wild or domestic animals, to subjugate them and, to this end, to tame them with all the painful consequences this may entail for them and, if they are too old, or too numerous, or abandoned, to kill them.

Lamer JA wrote what became the leading case interpreting the generalAnti-cruelty provision and the concepts of “unnecessary” for modern times.

This illustrates how weak convictions are not a deterrent to animal abuse.

Few abusers convicted• Require a high level of mens rea;

• Crimes difficult to prosecute due to the term ‘willful neglect’

–requires proof that an accused intended to harm or kill his

her animal;

Part XI sections 444-447 of the Code re: Crimes against Property:

Sections 444-447 of Part XI of the Code are Crimes against Property: 3 types of offences against animals:

1. Killing and harming animals (445);

2. Torturing animals (445.1);

3. Neglecting animals (446).

Part XI sections 444-447 of the Code re: Crimes against Property:

• Animals are treated as Property;

• Protected only in relation to their relationship to humans;

• Owned animals are protected better than unowned animals, i.e. cattle vs. strays.

Legal recommendations to update these laws:

In 1987 the Law Reform Commission of Canada had recommended an entirely new part be created in the Code

“What the Criminal law should address was the growing sentiment that it was no longer appropriate to treat crimes against animals as mere property offences.”

In 1998 the Department of Justice commissioned a report ‘Crimes Against Animals.’

Crimes against Animals:

• Consultation process to update the law;• Revealed a broad spectrum of opinion; • Consensus –majority view was that animals

should be protected from intentional cruelty and needless pain.

Crimes Against Animals:Among questions asked was whether respondents thought:

1. Is abuse of animals closer in seriousness to producing child pornography; or,

2. Is abuse of animals closer in seriousness to stealing an automobile?

Crimes Against Animals:

Recommendations:

• Reform of the law is not intended to forbid conduct that is socially acceptable or authorized by law so these provisions do not restrict or otherwise interfere with normal and regulated activities i.e. hunting, fishing, etc.

• Crimes against animals is separated from other property offences in Part XI of the Code ;

• Moved to part dealing with morals based offences.

Bill C-17:

• Proposed to move crimes against animals from property from Part XI of the Code to a revised Part V which would include sexual offences against public morals, disorderly conduct, and cruelty to animals;

-Introduced a definition of “animal” to mean a “vertebrate, other than a human being, and any other animal that has the capacity to feel pain

-Made it an offence to kill an animal without lawful excuse;

-Changed the offences from summary conviction to hybrid offences.

15 Failed attempts to update the Code:

Omnibus Bills involve many groups

Animals = Property

Hunting & Fishing

Industries

Aboriginal Practices

Pet Owners

Medical Research

Complications due to Parliamentary Process:

The parliamentary process has too many possibilities for someone to raise some objection to some element of an omnibus bill because of the nature of the Parliamentary process which encourages criticism to passage of Bills; Bills need to be more specific to pass, particularly when they are ‘contentious’ Issues such as the status of animals and amongst stakeholders with a vested interests (who hold strong interests) on these issues.

2002 to 2003 > 2008

Revised the penalty provisions:

Animal cruelty offences are hybrid offences as opposed to summary convictions;

Maximum penalties are 5 year jail term, unlimited fines and lifetime prohibition from animal ownership.

Restitution to agencies caring for abused animals.

BRYDEN’S BILL C-203

Criticism of BRYDEN’S BILL: Criticized by a variety of interest groups, i.e. animal welfare groups for not being enough of a change because:

Increased penalties without addressing conviction rates;

Animals cruelty continues to be in property part of Code.

Anti-Cruelty Case Law: Since Bryden’s Bill: R v. Munroe (2010 ONCJ 226):

• Accused subjected 2 dogs to torture, using heat, electricity and blunt force, causing hemorrohaging, a separated retina, a collapsed lung and 14 rib fractures over prolonged pd;

• Sentenced to twelve (12) months and an order prohibiting Munroe from owing, having custody or residing in the same premises as an animal or bird for 25 years.

• Judge noted the amendments “represent a fundamental shift in Parliament’s approach to these crimes and such a dramatic change in a penalty provision is virtually unheard of in our criminal law.”

QUANTO’S LAW: SERVICE ANIMALS UPDATE OF THE LAW

Recommendations: Propose provisions incrementally, better protects service animals, i.e. Quanto’s law; Provide a definition of ‘animal’;Things everyone agreed to not in Bryden’s billConsensus as a precursor to each change;

R v Zeller (1998 ABPC 19) :

• During an argument with his wife beat her puppy to death with a shovel;

• Charged with willfully causing unnecessary pain and suffering to an animal;

• Sentenced to 60 days in jail and 2 years probation.

R v Power (2003 OCA 176);

• Charged with willfully causing unnecessary pain, suffering, and injury to an animal and mischief;

• Sentenced to 90 days in jail

Examples of Weak Anti-Cruelty Convictions:

R v Paul (1997) BCJ No 808 (Prov. Ct):

• Accused plead guilty to willfully causing pain and suffering; he was asked to kill a starving cat by family and stabbed the cat 5 times and then crushed the cat’s skull with his boot;

• Sentenced to 1 day in prison and prohibited from owning animals for 2 years.

Examples of Weak Anti-Cruelty Convictions:

Suzana Gartneris a Canadian Lawyer who focusses on Animal Law and Dispute Resolution.

For further information:SuzanaGartner.com

Gartner KostanzaGartner’s Animal Law practice

The Dispute Resolution Specialists Gartner’s Alternative Dispute Resolution practice