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| Victoria Shroff |
In the words of the Alberta Court of Appeal in Canada’s most eloquent and important animal law dissent in the case of Lucy the elephant in the Edmonton Zoo, Chief Justice Catherine Fraser clearly stated how important enforcement of the law is for animals:
“[71] ... inadequate consideration of animals’ interests in law-making; priority for human interests always; restrictive judicial interpretation of protective legislation; common law precepts that treat animals as property and deny them or their advocates legal standing; limitations on what constitutes legitimate legal argument; restrictions on what is accepted as evidence; and anaemic enforcement of animal protection legislation. Understanding the nature and extent of these deficiencies....is important since they underscore why courts should interpret the animal protection laws we do have generously....” (Reece v. Edmonton 2011 ABCA 238)
Some 10 years since the Lucy judgment, Niagara Falls, Ont., police in December 2021 laid a criminal charge against Marineland for allegedly using cetaceans as entertainers in performances, contrary to the Criminal Code of Canada. This is a groundbreaking and important charge and signals that animals matter, that they deserve to be considered.
It’s bad enough that cetaceans in aquaria are housed in tiny tanks instead of their vast oceanic habitat, but it is another thing altogether when they are also used as entertainers in a theme park. Surely, this type of “entertainment” has no place in the modern world, or any world that values animals as sentient beings. (For more on animal sentience laws, please see the CBA National | Recognizing animals in Canada as sentient.)
The criminal charge laid in Ontario arose following a police investigation based on allegations and complaints made by animal groups like Animal Justice, Last Chance For Animals and whistleblowers alleging that dolphins and whales were illegally being used as entertainers without explicitly being authorized as required by law.
In 2019, the Code was amended regarding cetaceans with a view toward protecting whales and dolphins so that they do not have to endure the horrific life of living in a tiny tank entertaining or performing. Using captive cetaceans for performance for entertainment purposes without authorization pursuant to a licence is contrary to s. 445.2(4) of the Code could result in offenders being punished on summary conviction and liable to fines of up to $200,000.
Specifically, s. 445.2(4) of the Code:
Every person commits an offence who promotes, arranges, conducts, assists in, receives money for or takes part in any meeting, competition, exhibition, pastime, practice, display or event at or in the course of which captive cetaceans are used, in Canada, for performance for entertainment purposes, unless the performance is authorized under a licence issued by the Lieutenant Governor in Council of a province or by an authority in the province as may be specified by the Lieutenant Governor in Council.
Marineland denied the charge stating to CBC, “Our animal presentation contains marine mammals undertaking behaviours they exhibit in ocean environments. These behaviours are combined with an educational script delivered by Marineland staff, providing a foundation in understanding of these important marine species.”
On Valentine's Day, Feb. 14, 2022, Marineland will appear at the Robert Welch Courthouse in St. Catharines Ont., to answer to the charges. Many of us will be watching this important case unfold.
A criminal charge against Marineland has sent a strong signal of what is and is not tolerable when it comes to how humans treat animals in Canada. Animals have intrinsic worth, and humans need to recognize and to protect this worth. Humans must take responsibility for animals to ensure, at a minimum, that they are free from of all forms of cruelty and exploitation, including being used as performers for entertainment. Animal protection laws are hard fought to enact, so once they are enacted, we should make sure that they are enforced. Enforcement of animal protection legislation is a beginning, a tentative step toward recognizing intrinsic rights of animals.
“As we move deeper into the roaring 20’s, interest in legal issues affecting animals continues to grow and it is not just about dogs, cats, but wildlife, farmed animals, animals used in labs, slaughterhouses, animals exploited as entertainers, animals used for fur and in rodeos. These issues are interrelated. Animals are worthy of intrinsic rights” (V. Victoria Shroff, Canadian Animal Law (LexisNexis 2021)).
V. Victoria Shroff is one of the first and longest serving animal law practitioners in Canada. She has been practising animal law for over 20 years in Vancouver at Shroff and Associates and she is adjunct professor of animal law at UBC’s Allard School of Law and Capilano University. She is recognized locally and internationally as an animal law expert and is frequently interviewed by media. Her new book, Canadian Animal Law is now available at LexisNexis Canada store. Reach her at shroffandassociates@gmail.com, @shroffanimallaw or LinkedIn.
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