I still remember the first time I read the “Modernizing Animal Protections Act,” Nathaniel Erskine-Smith’s private member’s Bill C-246, which aimed to reform the Criminal Code’s treatment of animal cruelty offences. “This is it?” I thought. To me, it was a tepid legislative response to a serious problem, not nearly as useful as similar laws enacted overseas, all of which do much more to ensure that animals kept by humans aren’t the subject of pain, cruelty and abuse.

Apparently I got it all wrong. A review of parliamentary debates on the Bill by a coalition of Conservative and Liberal MPs, who this week voted overwhelmingly to drive a stake into Erskine-Smith’s efforts, reveal that the Bill was actually an “animal revolution” in disguise, an effort that would, according to MP Robert Sopuck (Daupin-Swan River-Neepawa, Conservative), “threaten…all animal use in Canada.” Hyperbolic claims of this sort came from both sides of the House. David de Burgh Graham (Laurentides-Labelle, Liberal) chimed in with his thoughts on the lurking menace posed by Bill C-246. He pointed out that he was a hunter and farmer, and that he did “not believe my family belongs in prison for sustainably feeding ourselves. I do not believe tens of thousands of my constituents should risk prison for feeding their families, either.”

Threaten all animal use in Canada? Put people in prison for feeding their families? With overheated rhetoric like this echoing across Ottawa, it’s no surprise that Bill C-246 didn’t stand a chance. As a result, Canada has retained its place as the Western world’s unofficial leader in terrible animal welfare laws. Notwithstanding reassurances by Sopuck and others, we don’t actually have good animal welfare laws. Unless, of course, you like harming animals in horrible ways without any real fear of criminal penalty or serious repercussion. In that case, we have great animal welfare laws.

What’s truly amazing is that over the last 30 years or so, just about every Western country aside from Canada has revamped its animal cruelty laws to begin encompassing modern ideas about animal protection that centre on what animals need, recognizing the fact that animals are not just property to be used and abused as we see fit (unlike other forms of property, this type can feel pain). New Zealand has managed to amend its law twice since 1999, and while its laws aren’t perfect, they are so much better than Canada’s it’s simply impossible to compare them. New Zealand, by the way, has a thriving farming and hunting sector. Not surprisingly, more robust protection laws designed to prosecute cruelty more effectively have not, as Sopuck worries, “threatened all animal use.”

You don’t have to look very hard to find problems with our law. The cruelty prohibitions were last reformed in 1955 and use some of the archaic, outmoded language of that time, wording that trips up prosecutions on a fairly regular basis. In case you hadn’t heard, the Supreme Court recently decided that because of the old-fashioned wording used in the Code, Canadians are legally entitled to perform a variety of sex acts on animals. short of penetration.

Amazingly, that’s not even the worst aspect of the law. My personal favourite is our “willful neglect” provision, the only penal law that protects animals from being neglected to the point of harm or death. If you’re having trouble conceptualizing what “willful neglect” could possibly mean, you’re not alone. The courts struggle with it too. Every other negligence provision in the Code recognizes that the point of punishing neglect is to sanction people who don’t mean to inflict harm, but who are acting so poorly compared to the “reasonable person” that they deserve to be held responsible anyway. But negligence in the animal cruelty context can only be committed when a person intentionally neglects an animal. So if you’re simply an absent-minded oaf who doesn’t feed your cat for three weeks, you’re free to go. In Canada, you have to be trying to neglect your cat in order to run into problems with our criminal law.

It’s no wonder that prosecutors have stopped bringing charges for neglect, most likely because they’re embarrassed to have to explain this stupidity to judges. For me, the best part of Bill C-246 was that it would fix this ludicrous provision and bring Canada into line with all the other countries that have recognized that if you want to have animals in your care, you should avoid treating them in a grossly negligent fashion. But for MPs like Robert Sopuck, this was a dangerously misguided provision that would subject ordinary Canadians to criminal sanctions, simply for being “clumsy, incompetent or unlucky.”

Nothing could be further from the truth. While Bill C-246 would have — marginally — expanded the scope of criminal liability, it would have done so by adopting the standard test for criminal negligence used in the rest of the Code: proof that a person was acting in a manner that was a marked departure from the ordinary standard of care. It’s an incredibly difficult test to meet – and would never be reached by someone who was just “clumsy, incompetent or unlucky.” An animal user would be treated in the same way as anyone else who owes obligations to other vulnerable parties (think parents, drivers, employers, etc.) and neglects them, causing harm in the process. Liability would only flow in extreme circumstances where the person’s conduct towards an animal was dramatically worse than what a reasonable person would have done.

Statements like Sopuck’s are what made the C-246 saga such a frustrating, though familiar, exercise. The discussion over the merits of the provision weren’t measured or even, at times, rational. Consider this gem from Larry Miller (Bruce-Grey-Owen Sound, CPC), who stated, apparently with a straight face, that:

Bill C-246 contains a number of new provisions that redefine what constitutes criminal activities against animals, the first of which is the inclusion of a recklessness test… What this means is that wilfully causing harm or suffering to an animal has always been illegal, but the Bill would add a new host of actions that would fall under the test of recklessly causing harm or suffering.

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The problem here is that what constitutes recklessness is not clearly defined. Would hitting an animal with a car constitute reckless harm or suffering? We have all hit animals, or most of us have, if we drive in rural Canada…These are the loopholes that make the bill so dangerous. I would not want to see anyone slapped with a criminal record for hitting a raccoon, deer, or whatever with a car.

Virtually every word of this is just complete nonsense, and quickly identifiable as such by anyone with even a passing familiarity with the criminal law. To begin with, the Bill didn’t add a new “recklessness” standard. The law we have in place right now punishes the reckless imposition of unnecessary suffering. It just does so in a circuitous way. Bill C-246 would just have clarified what already exists. Miller seems equally perplexed by the meaning of recklessness, even though this this term has been very clearly defined by the courts. Every student in my first year law class quickly comes to know the meaning of recklessness (a subjective awareness of probable consequences), and any one of them could tell you that Miller’s suggestion that accidentally hitting a raccoon might equate to “recklessness” is downright asinine.

Unfortunately, these types of statements were not outliers. Instead, they reflect the general themes and tone of the debate on Bill C-246. This is a pattern that has repeated itself every time someone has tried to reform our animal cruelty laws over the past half century. Before you know it, groundless or half-baked objections forecasting the coming of the apocalypse are getting thrown around, and moderate MPs who might otherwise have supported the legislation start to panic.

The Justice Minister has promised that Bill C-246 is not the last word on this subject, and that reform might still come through a wider criminal justice package that is somewhere off on the horizon. Personally, I’ll believe it when I see it. The Liberals had a real opportunity here to move things along and make useful corrections to the law that could have been revisited at some later time, if need be. Instead, they seem to have given in to ferocious lobbying and falsehoods about what the law proposed to do.

I could certainly understand it if Bill C-246 had died because parliamentarians just don’t care about animals, or perhaps were able to point to legitimate concerns about its scope and potential impact. But I didn’t see much of that. Instead, the hard work of Nathaniel Erskine-Smith seems to have been scuttled for other reasons: fear-mongering mixed with serious misconceptions about how our cruelty laws actually operate.

Photo: Anri Gor / Shutterstock.com


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Peter Sankoff
Peter Sankoff is a professor at the University of Alberta, Faculty of Law. His teaching and research focus on legal issues surrounding the criminal trial process and the relationship between animals and the law. He is a member of the Ontario Bar.

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