The New “Persons” – the Apes

In Edwards v. Canada (Attorney General), the Privy Council considered whether “persons” under s. 24 of the Constitution Act included women,

24. The Governor General shall from Time to Time, in the Queen’s Name, by Instrument under the Great Seal of Canada, summon qualified Persons to the Senate; and, subject to the Provisions of this Act, every Person so summoned shall become and be a Member of the Senate and a Senator.

Lord Chancellor Viscount Sankey of the Privy Council stated,

…their Lordships have come to the conclusion that the word “persons” in sec. 24 includes members both of the male and female sex and that, therefore, the question propounded by the Governor-General must be answered in the affirmative and that women are eligible to be summoned to and become members of the Senate of Canada, and they will humbly advise His Majesty accordingly.
[emphasis added]

The “Persons” case became the basis in Canadian constitutional law for the living tree doctrine. A new “Persons” case on December 18, 2014, from an Argentinian court, suggests that the qualifications for being a person may be expanded further.

The Federal Criminal Court of Appeals in Buenos Aires heard a petition for habeas corpus by the Association of Officials and Lawyers for Animal Rights (AFADA) challenging the detention and confinement of an orangutan named Sandra.

The animal rights group claimed that Sandra had sufficient enough cognitive functions that she should not be treated as an object, but rather as a non-human person with legal rights.

Judges Alejandro W. Slokar and Angela E. Ledesma invoked a dynamic interpretation of the law to afford Sandra protection of the law as a non-human person. They referred to two works of Argentine lawyer, Eugenio Raúl Zaffaroni, who currently sits on the Supreme Court of Justice.

In “La Pachamama y el humano,” Zaffaroni questions whether humans are the only ones who hold rights, pointing to the citizen in ancient Rome to illustrate how the notion of an entitlement to rights can change over time.

He points to the resurgence of animal “rights” in Europe and the U.S. in the second half of the 19th c., focusing on punishment of humans for abuse, cruelty and mistreatment of animals.

He traces this trend to the common law, even though writing in a civil law jurisdiction, to 1824 with the Royal Society for the Prevention of Cruelty to Animals (RSPCA) in Britain. Many of these early animal advocates had close ties to anti-slavery abolitionists. Despite the widespread adoption of animal cruelty laws internationally following this, the philosophical debates of the nature of animals and their relationships with humans effectively placed limits on these rights.

In a criminal text, “Derecho Penal,” Zaffaroni posits that making animals the subject of regulation, as opposed to having inherent rights of their own, deprives them of the ability to preserve the existence of their species.

Lawyer for the AFADA, Paul Buompadre, was quoted as saying,

This opens the way not only for other Great Apes, but also for other sentient beings which are unfairly and arbitrarily deprived of their liberty in zoos, circuses, water parks and scientific laboratories.

However, success in these types of cases have been extremely limited in other jurisdictions. The Nonhuman Rights Project (NhRP) recently failed to convince the State of New York Supreme Court Appellate division to grant a writ of habeas corpus for a chimpanzee named Tommy. Justice Karen Peters stated,

[The] petitioner requests that this Court enlarge the common-law definition of “person” in order to afford legal rights to an animal. We decline to do so, and conclude that a chimpanzee is not a “person” entitled to the rights and protections afforded by the writ of habeas corpus.

…The statute does not purport to define the term “person,” and for good reason. The “Legislature did not intend to change the instances in which the writ was available,” which has been determined by “the slow process of decisional accretion”

…Thus, we must look to the common law surrounding the historic writ of habeas corpus to ascertain the breadth of the writ’s reach. Not surprisingly, animals have never been considered persons for the purposes of habeas corpus relief, nor have they been explicitly considered as persons or entities capable of asserting rights for the purpose of state or federal law.

Petitioner does not cite any precedent – and there appears to be none – in state law, or under English common law, that an animal could be considered a “person” for the purposes of common-law habeas corpus relief. In fact, habeas corpus relief has never been provided to any nonhuman entity.
[citations omitted]

Justice Peters also contemplated the fact that the writ has gained increased flexibility over the years, and considered whether it could be broadened further in scope. She rejected the proposition when assessing chimpanzees.

The basis for affording such rights was a reciprocity of responsibilities based on the social contract with government. She adopted Justice Papadakos’ statement in Amato v. Levin,

“Personhood” as a legal concept arises not from the humanity of the subject but from the ascription of rights and duties to the subject.

Corporations and municipal entities could be considered legal persons because they were associations of human beings capable of bearing legal duties in exchange for their legal rights. The chimpanzee was unable to assume any social responsibility in exchange for such rights and was unable to assume the duties requisite of a human being.

The regulatory protection of chimpanzees, she concluded, was sufficient to provide them adequate protection. In particular, human beings are not able to keep primates as pets (as the owner of the Ikea monkey discovered in our jurisdiction).

Still, primates have gained some rights across the world in recent years. Germany and Switzerland have provided animals some independent rights as beings. On June 25, 2008, Spain’s environmental committee of the lower house of parliament passed a resolution to support the Great Ape Project, following an earlier resolution in the Balearic Isles, but was never enacted.

All of this is entirely reminiscent of a scene out of Planet of the Apes. And just as in the movies, their planet is ours as well.

Apes are unlikely to be considered “persons” in Canada any time soon, or for that matter, join our Senate. But if they do, it will give an entirely different context to Senate reform and the notion of government “monkeying around.”


  1. The common law seems unlikely to extend animal rights, for the reasons canvassed here. Beyond laws against cruelty to animals, which already exist but which are somewhat controversial when (not?) applied to factory-farmed animals, what might a legislature do to expand animal ‘rights’?

    BTW I understand from press reports that Professor, now Ontario Court of Appeal Justice Grant Huscroft, is an ‘originalist’ in constitutional matters. Does that mean he thinks the Privy Council got the Persons case wrong?

  2. John,
    I will not presume to comment about members of the bench and their views on constitutional law. I did take advanced constitutional law at Western under this professor though. And I will leave it at that.

    Richard Posner said the following in the Yale Law Journal of his review of “Rattling the Cage: Toward Legal Rights for Animals,” by Steven Wise, counsel in the recent New York case,

    There is a sad poverty of imagination in an approach to animal protection that can think of it only on the model of the civil rights movement. It is a poverty that reflects the blinkered approach of the traditional lawyer, afraid to acknowledge novelty and therefore unable to think clearly about the reasons pro or con a departure from the legal status quo. It reflects also the extent to which liberal lawyers remain in thrall to the constitutional jurisprudence of the Warren Court and insensitive to the “liberating” potential of commodification. One way to protect animals is to make them property, because people tend to protect what they own.

    Aside from a myriad of ideological objections that Posner poses, he states at the outset,

    Judicial innovation proceeds incrementally; as Holmes put it, the courts, in their legislative capacity, “are confined from molar to molecular motions.”

    As we could say in Canada, the living tree, when it does grow, will grow quite slowly indeed.

  3. I rarely take highways during my routine commute, but driving along some of them this holiday season and making optimal use of HOV lanes in the process got me to thinking about the gymnastics some people might attempt to get out of a ticket.
    Imagine if the “slow process of decisional accretion” found its next layer of clay in a test case by some coal-rolling enthusiast fighting a ticket for driving solo in the HOV lane… with his pit bull.
    This might open up opportunities for a new class of working dogs: canine passengers over a certain age and weight (such that they are exempt from car seat regulations), which could qualify the motor vehicle driver to use car pooling lanes.
    Clearly my mind is still on vacation. Happy Holidays!