Treatment of animals by Canadian legal system slowly evolving, legal experts say

That was the message from legal minds attending the Animal Law 101 2022 conference held by the Continuing Legal Education Society of British Columbia (CLEBC) April 12, which provided an overview of the theoretical frameworks of animal law, the treatment of animals in mainstream legal practice and how courts deal with conflicts involving animals.

V. Victoria Shroff, who has been practising animal law for more than 20 years at her firm Shroff & Associates, said animal law issues are “serious, complex and far-reaching,” intersecting with many other areas of the law, such as criminal, family and contracts, to name a few. But she also noted animals are still largely classified as property in Canada.

“We know that the common law is a very binary system where typically you have persons or property, so if we are not persons we are classified as legal property,” said Deckha, who recently authored a book on the legal treatment of animals. “And many animal law scholars feel that being property is akin to inhabiting a status that subjects you to exploitation.”

Many scholars see personhood as a much more protective status than property, said Deckha. But she also noted others have wondered whether personhood is the best status for animals.

“Personhood at least gives us some protections from the state against killing, but there are many iterations of what personhood means — it is such a foundational term for common law legal systems, but it is rarely defined,” she said. “In the rare moments that personhood is delineated and explicitly discussed as to what it means it really tracks onto a theory of liberal humanism, which is a type of liberalism that treats humans as special because they can reason at a certain level. When we look at things like orcas and dolphins these are seen as ‘humanized animals’ in our society, but what about those farmed animals like pigs and cows are not going to easily fit into that mould of humanization?”

Despite these obstacles, both Shroff and Melissa Gillespie, chief judge of the B.C. provincial court, noted that there has been a small shift in courts’ treatment of animal issues where they have begun to be given some limited rights. They pointed to the dissent of Alberta Chief Justice Catherine Fraser in Reece v. Edmonton (City) 2011 ABCA 238 as being a watershed moment in animal law which has found its way into other animal law cases.

In that case, which involved a legal fight over the relocation of elephants from Edmonton to California, Chief Justice Fraser wrote that “society’s treatment of animals today bears no relationship to what was tolerated, indeed widely accepted, centuries ago,” and society has moved “from a highly exploitive era in which humans had the right to do with animals as they saw fit to the present where some protection is accorded under laws based on an animal welfare model.”

“Those comments were in dissent and leave to appeal denied, but it has begun to change somewhat the legal relationship between humans and animals,” said Gillespie.

Animal law is “really just human law with animals at the centre,” said Shroff, the author of the recently published book Canadian Animal Law.

“Over time we have been moving away from seeing animals as pure property and giving some small-r rights, but the notion of animal rights as a practice is still aspirational and something that is the realm of ideas,” she said. “But animals do matter, and they are being increasingly recognized in the legal system as part of a mainstream legal practice.”