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| Victoria Shroff |
The lawyers for Happy were not arguing that she was a human being, but she could be a legal person. The appeals court decision means that Happy was denied personhood and will not be released from the zoo to a sanctuary.
Chief Judge Janet DiFore, writing for the majority, stated that habeas corpus is intended for human beings and does not apply to animals. The majority decision ruled that: “While no one disputes the impressive capabilities of elephants, we reject petitioner’s arguments that it is entitled to seek the remedy of habeas corpus on Happy’s behalf ...” The majority, however, did concede that “... no one disputes that elephants are intelligent beings deserving of proper care and compassion.”
Animal rights, animal personhood relatively new concepts under law
It’s important to bear in mind that the notion of animals as rights holders is still in its infancy, and part of a global effort that is slowly unfolding in how animals are treated as more than mere property under the law. (Please see: Animals may not be human but they can be persons of interest in U.S.) Happy’s lawyers, the influential American-based Nonhuman Rights Project (NhRP), put forth vigorous innovatory arguments that an autonomous, cognitively complex elephant, should not be illegally detained in a zoo. They had a groundswell of support in their position, including scholars and scientists.
Powerful dissents in Happy’s case
While Happy did not succeed in being accorded personhood, the case was taken very seriously by a top court and was still a victory for animal law globally. The decision contains two very powerful dissents on the rights and plight of animals.
NhRP, in an e-mail to me on June 16, provided a quote from Steve Wise, president of the NhRP: “Happy lost this time. But the two powerful dissents will, one day, become the majority.” We have seen evidence of this in cases where dissents may look untenable initially, and then years later are quoted with approval by the majority. (In Canada, a salient example comes from the watershed dissent of Chief Justice Catherine Fraser of Alberta in the Lucy the elephant case, Reece v. Edmonton 2011 ABCA 238. Approximately 10 years after her powerful dissent, the words of the chief justice were quoted with approval by the majority of the Court of Appeal of Alberta in another animal law case, R v. Chen 2021 ABCA 382 at paragraph 21: “a civilized society should show reasonable regard for vulnerable animals.”
It is truly unfortunate that a wild animal like Happy lost her bid for freedom, but we should be buoyed by the insightful, clear and empathic dissents from the New York Appeals Court Justices Rowan Wilson and Jenny Rivera in Happy’s case. The dissents seized on the concept of how society treats or mistreats animals as an important reflection for how we are doing as a society.
In her strongly worded dissent, Judge Rivera decried that a wild animal living in captivity is both unjust and inhumane stating: “Captivity is anathema to Happy because of her cognitive abilities and behavioral modalities — because she is an autonomous being. Confinement at the Zoo is harmful, not because it violates any particular regulation or statute relating to the care of elephants, but because an autonomous creature such as Happy suffers harm by the mere fact that her bodily liberty has been severely — and unjustifiably — curtailed. Happy’s “... captivity is inherently unjust and inhumane. It is an affront to a civilized society, and every day she remains a captive — a spectacle for humans — we, too, are diminished ...”
Judge Wilson argued in his robust dissent that the court had a duty “to recognize Happy’s right to petition for her liberty not just because she is a wild animal who is not meant to be caged and displayed, but because the rights we confer on others define who we are as a society.” Justice Wilson quoted Jeremy Bentham’s famous moral rallying cry about animals from the 1700s: “ ... [T]he question is not, Can they reason? nor, Can they talk? but Can they suffer?” (Jeremy Bentham, An Introduction to the Principles of Morals and Legislation 311 n1 [Oxford, Clarendon Press 1781.
Justice Wilson answered Bentham’s call: “They can and do, and that day is upon us.”
Far from giving up their well-orchestrated fight, the NhRP look forward to continuing to press for rights of cognitively complex animals.In fact, they already have another elephant case in California in the works and intend to file more cases in the U.S.A.and overseas. As those of us working in animal law appreciate, just having Happy’s case heard in an upper court was a victory in itself. It was also apparently the first time a court in an English-speaking jurisdiction heard an animal law personhood case.
There is much to unpack from this decision, much to celebrate with these robust dissents. Happy’s case and its ramifications for the animal law field will echo for years to come and will be closely studied in my and many others’ animal law classrooms. We will also be discussing Happy’s case in the Canadian Animal Law Study Group and undoubtedly at upcoming law conferences.
Intrinsic worth of animals
Happy’s case resonates with what I wrote in Canadian Animal Law about animal law court cases, “The voices decrying the notion that animal matters are a waste of court resources may gradually be fading into the background as courts hesitantly, nervously approach the idea of animal rights. I believe we will likely be seeing more cases like Happy’s where the court has to grapple with law, ethics, science and policy to try to account for the intrinsic worth of non-human animals." (For more background on Happy’s case, personhood, please see chapters 1 and 12 of 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.
Photo credit / Inna Tarasenko ISTOCKPHOTO.COM
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