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Access to justice for animals: It’s possible | Victoria Shroff

Thursday, March 14, 2019 @ 8:34 AM | By Victoria Shroff


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Victoria Shroff  %>
Victoria Shroff
As part of the Access to Civil Justice for Middle Income Canadians Colloquium in February 2011, the then Chief Justice of Canada, Beverley McLachlin, stated, “It [access to justice] is a fundamental right, not an accessory.”

This ideal is powerful, particularly when enunciated from the top judge in the country. Some three years later in Hryniak v. Mauldin 2014 SCC 7, Justice Andromache Karakatsanis wrote something similar: “Ensuring access to justice is the greatest challenge to the rule of law in Canada today... [W]ithout an effective and accessible means of enforcing rights, the rule of law is threatened.”

I think these powerful statements invite the question: Is the concept of access to justice only to include humans, or should non-human animals also be given access?

Hryniak was not an animal law case, nor was the former chief justice talking about animals in her speech at the colloquium, but should the same principles of ensuring access to justice also apply to animals? The vast majority of Canadians already treat their companion animals like family members, but in court, the family member turns into personal property, something instead of someone, a thing that is owned rather than a sentient being.

Animals are property in the eyes of the law. Perhaps the starting point to remedy this is legislation that better reflects current societal beliefs that animals are more than lumps of respirating property. I cannot imagine that anyone in 2019 would say that animals are not sentient, with feelings for joy, pain, kinship, comfort and love.

Though animals are sentient, it is a simple fact that being property, animals do not have standing in our court system. Without standing, how can animals access the court system to have their interests heard and enforced? I think sentience should count for something. As an animal law lawyer, my animal clients (albeit through their guardians or owners) are sentient but have no standing in law. What does this say about my clients and what does this say about our laws in Canada and access to justice?

I cannot tell you how many times I’ve requested the court to please “take a view” at the kennels or barn where my canine, horse, sheep or pig client is being held in order to fully consider the claims and defences about the animal in question. In my 19 years of practice as an animal law lawyer, I have yet to ever have a judge take a view and my request to bring in the animal in question into court has also not succeeded.

Before people start dismissively harrumphing at their screens as they read this article, corporations are not sentient yet they have standing and access to justice. Animals don’t. My point is that as far as the law goes, we as a society have been here before; up until fairly recently Canadian women were not “legal persons.” It took time and it took a shift in thinking. When white women got the vote, women of colour were not extended the same franchise until years later. Under federal legislation, Indigenous women covered by the Indian Act were not allowed to vote for band councils until the early 1950s and could not vote in federal elections until 1960. It was only 59 years ago in Canada that all women could vote.

Animals are as disempowered as some two-legged people. History shows that rights expansion begins as an idea that may be thought of as almost unthinkable, deviant even, and then moves from impossible to possible.

Standing for animals readily lends itself to an access to justice lens. The Alberta Court of Appeal case of Lucy the lone Asian elephant confined in the Edmonton zoo neatly illustrates my point (Reece v. Edmonton (City) [2011] A.J. No. 876). Reece highlights the state’s responsibility and obligations to animals under the law.

Lucy was a cognitively complex middle-aged elephant whose health mentally and physically was reported to be deteriorating. Lacking a companion elephant, her champions wanted her moved to a warm elephant sanctuary, but she was hampered in her bid to leave the zoo. The appeal was dismissed by the majority as they essentially ruled that the proceedings were an abuse of process, so Lucy failed to get her day in court, had no standing and those who tried to speak for her were denied access as well.  

Without standing, how can animals access justice? Lucy is the poster animal for no access to justice for animals. The empathic dissent in Reece, written by the Alberta Chief Justice Catherine Fraser, is often referred to in animal social justice cases because the judge would have given the appellants for the public and on behalf of Lucy their day in court.

Chief Justice Fraser discussed the fact that rights benefiting animals are already limited so courts should be careful not to diminish the laws that we do have for an animals’ benefit and the system should not create untenable barriers to those seeking access to enforce rights. She observed, “Animals, including Lucy, cannot commence lawsuits on their own to protect themselves. They must rely on humans to give voice to the truly voiceless. Thus, courts should take a generous, not impoverished, approach to the grant of public interest standing for those attempting to enforce the restrictive animal rights that do exist.”

The U.S.-based NonHuman Rights Project lawyers are trying to get Happy, a miserable elephant in a New York zoo, to a sanctuary via a habeas corpus order.

In Canada, we’re in a paradigm where access to justice for animals may be described as an “accessory” and not a fundamental right. At the conclusion of her 2011 speech, former chief justice McLachlin summarized her thoughts on access to justice by saying, “There is no silver bullet. We have to commit ourselves to working on this issue.”

I concur, but suggest we need to commit ourselves to working on access to justice for both humans and animals. It’s possible.

V. Victoria Shroff is one of the first and longest serving animal law practitioners in Canada. She has been practising animal law civil litigation for nearly 20 years in Vancouver at Shroff and Associates and she is erstwhile adjunct professor of animal law at UBC’s Allard Hall Law School. She is recognized internationally as an animal law expert and is frequently interviewed by media. Reach her at shroff@telus.net@shroffanimallaw, LinkedIn or https://experts.news.ubc.ca/expert/victoria-shroff/.

Photo credit tuk69tuk ISTOCKPHOTO.COM  

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