The Ontario Superior Court of Justice rendered a judgment on the Ikea Monkey in September and it is just as weird as you would expect. However, this decision and others dealing with the custody of animals raise questions regarding animal welfare, the move towards protective rights legislation, and the remaining roadblocks to accepting notions of animal rights under the law.
The Ikea Monkey:
Most of you will remember the story of Darwin, the macaque who escaped from his owner’s locked car last December and made his way into a Toronto area Ikea store, wearing a diaper and winter coat – the stuff that social media is made of. He was soon picked up by Toronto Animal Services, who handed him over to Story Book Farm Primate Sanctuary in Sunderland, Ontario.
Last month, Justice M.E. Vallee rendered judgment in Nakhuda v. Story Book Farm Primate Sanctuary, 2013 ONSC 5761, concluding that Darwin should remain in the custody of the Sanctuary and should not be returned to his “mom”, the Plaintiff Yasmin Nakhuda. Nakhuda is presently appealing the ruling to the Ontario Court of Appeal.
The case raises interesting issues regarding the status of animals under Canadian law and a progressive move towards sentient animals not being considered “mere” property. Although the Superior Court of Justice was clear that animals were chattels under the law (movable property in Quebec) and that it was applying basic property law principles to decide who should have custody of the monkey, the reality is that both federal and provincial laws have progressively evolved towards recognizing animal welfare for its own value. Although in the Ikea Monkey case, The Court did not pretend to consider the best interests of the monkey in any way, there is room under many other laws to consider animal welfare.
Justice Vallee appealed to common law principles and ancient precedent in reaching her decision. Unsurprisingly, there have been very few recent decisions on the classification of monkeys under Canadian law. As noted by the judge: “Monkeys are not native to Canada”. The central issue to be decided by the Court was who owned the monkey. The secondary issues which needed to be considered included: Is the monkey ferae naturae (a wild animal)? If he is and there is an ownership interest in a wild animal only when he is in the owner’s possession, do exceptions apply? Does the doctrine of animus revertendi (whether the animal had a normal habit of returning home) apply?
In order to decide these issues, Justice Vallee cited Halsbury’s Laws of England, as well as section 345 of the old English Criminal Code, apparently the most recent sources specifically dealing with animal custody. She also cited the 1917 Ontario Court of Appeal judgment in Campbell v. Hedley, the only case dealing with an escaped animal (a fox in that case), which teaches the legal distinctions between tame and wild animals. After reviewing the monkey’s habits and notably the difficulty the Plaintiff had in controlling him, Justice Vallee concluded that Darwin was a wild animal, “by virtue of his behaviour and qualities”, despite the fact that the monkey wore clothing and diapers and slept in Mrs. Nakhuda’s bed, and despite Mrs. Nakhuda's testimony that she had adopted Darwin after seeing a video of macaques trained to wait tables in Japan. The Court also concluded that Darwin would not have returned home on his own and therefore the doctrine of animus revertendi did not apply.
Finally, Justice Vallee rejected Ms. Nakhuda’s argument that her ownership interests were lost only if the animal regained his natural liberty: the monkey could not ever regain its natural habitat unless it was taken back to the country where its species exists in the wild.
Animal Justice Canada, a non-profit organization composed of legal professionals dedicated to animal welfare, has applauded the decision, noting that Darwin is a wild animal who is not suited to living in a private home.
Lucy the Elephant:
Other Canadian judges have gone further in specifically considering animal welfare and the animal’s best interests. Perhaps the most known recent case is that of Lucy the elephant, Reece v. City of Edmonton, 2011 ABCA 238, in which the Appellants were unfortunately not granted leave to appeal to the Supreme Court.
Lucy is an Asian elephant housed at the Edmonton Zoo. For eighteen years, Lucy lived in the company of Samantha, an African elephant. In 2007, Samantha was moved to another zoo on long-term breeding loan and Lucy was left essentially in solitary confinement, particularly during the winter months when she remained indoors. Two animal protection organizations, Zoocheck Canada and People for the Ethical Treatment of Animals, filed an application for a declaration that the City of Edmonton was violating provincial zoo standards by not allowing Lucy to be transferred to the Toronto zoo, where she would receive better care and companionship.
Both the first instance judge and the majority of the Alberta Court of Appeal dismissed most of the applicants’ requests, without considering the merits of the application, based on abuse of process and lack of public interest standing. However, Chief Justice Fraser wrote a strong and impassioned dissent, in which she not only would have granted the applicants public interest standing to represent Lucy before the courts, but also reviewed in detail the purpose and history of animal welfare laws in Canada, possible reform to the legal rights of animals and the moral and ethical dimensions of treating animals humanely. Not to mention that she also considered the extensive affidavit evidence which brought to light the cognitive and behavioural needs of elephants, and the fact that they are entirely sentient and self-aware.
Chief Justice Fraser would have granted the applicants public interest standing and reviewed the chambers judge’s conclusion that the application was an abuse of process because it was not brought before the courts by way of the proper legal vehicle. It is unfortunate that the analysis is a dissent, it is probably the only court decision which specifically considers the best interests of an animal.
Animal Rights, Welfare:
While animal rights as such are still not recognized under the law, animal welfare laws, notably those against cruelty, do exist in Canada and other countries – a clear indication that animals are not considered “mere” chattels anymore. In 2008, long-awaited amendments to the Canadian Criminal Code enacted a section on “Cruelty to Animals". Sections 444 to 447 prohibit such things as killing an animal brutally, training animals to fight and poisoning an animal, and provide for the imposition of significant fines, as well as up to five years imprisonment on a summary conviction charge. Although a step in the right direction, the amendments do not go far enough to protect animal welfare. Animal rights organizations have pointed to two main shortcomings of these provisions, one conceptual and one very practical. First, the provisions were included within the section on property crimes, along with sections such as "Arson and other fires", when many organizations had advocated for them to be a stand-alone section. Second, the provisions require that the actus reus be committed "wilfully", much harder to prosecute, and which leaves out crimes of neglect that do not necessarily amount to wilful intent. Nonetheless, the fact that the criminal law was amended to guard against animal cruelty is a powerful indication that animal welfare is a legitimate concern for citizens across the country.
Canadian provincial legislation also aims to protect animals. In Quebec, the Animal Health Protection Act (R.S.Q. c. P-42) includes sections which impose en affirmative duty of care towards animals. In particular, section 55.9.2 defines safety and welfare in broad terms :
The safety or welfare of an animal is jeopardized where :
(1) the animal does not have access to drinking water or food in quantities and of a quality in keeping with its biological requirements;
(2) the animal is not kept in premises that are suitable, salubrious, clean and adapted to the animal's biological requirements and where the installations are not likely to affect the animal's safety or welfare or is not properly transported in an appropriate vehicle;
(3) the animal does not receive the health care required by its condition while it is wounded, sick or suffering;
(4) the animal is subject to abuse or ill-treatment that may affect its health;
The Act also grants wide powers to inspectors of the Minister of Agriculture, Fisheries and Food to enforce the Act, obtain search warrants and confiscate animals if they believe that their safety and welfare are in jeopardy. Other provinces have similar animal protection legislation.
In addition to these laws, which clearly protect animals for their own benefit, federal laws protect wildlife diversity, such as: the Species at Risk Act (S.C. 2002, c. 29) and the Canada Wildlife Act (R.S.C., 1985, c. W-9). Although such laws are often said to have been enacted from a human rights perspective, to ensure ecological diversity for future generations, they at least implicitly acknowledge the value of species as a whole.
Other countries have similarly enacted specific legislation prohibiting the more “high profile” animal cruelty matters which we have heard about in the media. For instance, it is illegal to declaw your cat in Australia, Israel, Brazil and most of Europe (and is at least very frowned upon in Canada). Raising duck and geese for foie gras is explicitly prohibited in Argentina, Israel, the Czech Republic, Denmark, Finland, Germany, Italy, Luxembourg, Norway and Poland. In the United States, where dog fighting was the subject of much media attention in the past few years following football player Michael Vick’s conviction, all fifty states have laws prohibiting dog fighting. In addition, in 2007, Congress passed the Animal Fighting Prohibition Enforcement Act, amending the Animal Welfare Act, which prohibits interstate dog fighting activities.
Animal welfare legislation is quickly evolving. Legislatures are increasingly recognizing the value of protecting animal life and welfare for its own sake. However, the law remains archaic in its classification of animals as property and the procedural roadblocks to filing proceedings based on a public interest standing. Perhaps we will one day move closer towards a recognition of animal rights beyond the existing protection of animal welfare.