Kiska’s death is animal law fail

By V. Victoria Shroff

Law360 Canada (March 14, 2023, 9:48 AM EDT) --
Victoria Shroff
V. Victoria Shroff
Captivity kills. Sometimes slowly. After spending 40 years in a tiny tank, Kiska, the approximately 47-year-old orca, died in Ontario in March 2023. Kiska’s life and death is an animal law fail.

What a heartbreaking end for Kiska, dubbed the “World's Loneliest Orca,” housed alone in a concrete tank at Marineland. Since being captured off the coast of Iceland in 1979, Kiska has been held at Marineland. For the last decade of her life, Kiska had been kept all alone in her concrete cell before dying. Kiska also hauntingly had five calves who years ago, all died very young. Recent videos posted to social media portrayed Kiska as listless, exhibiting thrashing and stereotypical behaviour which appeared to be consistent with both psychological and physical distress.

Whales are intelligent, culturally complex, social beings who form life-long social groups swimming many miles daily in the wild. To keep these wild magnificent sentient creatures in tiny tanks as captive entertainers is nothing short of tyranny.

Humans are failing spectacular sentient beings like Kiska. She should never have been captured, used as an entertainer and had to live out her days alone in a concrete water tank.

Humane Canada issued a statement outlining why they are rightly “... saddened and outraged by the passing of Kiska ... ” 

We have ample evidence showing us that captivity kills

As Murray Sinclair sagely noted at the 2020 at the Canadian Animal Law Conference: “There is no good reason for animals to be held in captivity beyond their own safety, their own protection, their own welfare.” — (Canadian Animal Law, (Lexis Nexis) 2021, V. V. Shroff)

The science on how negative captivity is for animals blends with the amoral nature of keeping animals in captivity: “The basic moral principle we might draw from looking at the scientific database on how captivity affects animals, then, is this: It is prima facie unethical to hold animals in prolonged captivity, because captivity imposes suffering, and it is wrong to deliberately impose suffering on a sentient creature.” (Jessica Pierce & Marc Bekoff (2018) A Postzoo Future: Why Welfare Fails Animals in Zoos, Journal of Applied Animal Welfare Science.)


Over the years there have been issues that warranted scrutiny at Marineland. Animal welfare rights organizations and individuals have been doing their best to highlight the difficulties. In December 2021, there was a hopeful sign that animal law issues were being taken seriously when Marineland was charged criminally for using dolphins in unauthorized performances which has been illegal in Canada since 2019. However, in 2022, the Crown chose not to prosecute Marineland deciding it was not in the public interest to do so.

Since January 2020, the office of the Ministry of Solicitor General that oversees animal welfare in Ontario, indicated that there were 160 inspections carried out at Marineland and Kiska's trainer admitted that “... you could see her decline and her behaviour changed.”  

Animal Justice is calling for Marineland to be prosecuted for its treatment of Kiska: “We are demanding justice for what Kiska endured at the hands of Marineland. Prosecute Marineland for years of cruelty to Kiska.” 

Writing as the chair of the national Canadian Animal Law Study Group, we too, are appalled and call for a full investigation.

Human-made animal laws, while laudable, did not ultimately help free Kiska

Kiska was the last captive orca in Canada. She was “grandfathered in” under legislation, meaning that she could legally remain captive despite 2015 legislation in Ontario banning orcas in captivity and 2019 legislation, Bill S-203, The Ending the Captivity of Whales and Dolphins Act, also known as the Free Willy Bill, that made it illegal to hold whales captive.

A whale sanctuary is being built by the seaside in Nova Scotia and there was some hope that Kiska could have one day moved to such an oceanic sanctuary to live out her days, but it was not to be.

Kiska’s death shows that animals need the federal government to swiftly pass the Jane Goodall Act with its strong protections for captive animals.

Kiska reminds us of the elephant in the room. Lucy, the sole elephant at the Edmonton Zoo, is around the same age as Kiska was. What can be done for Lucy? The Jane Goodall Act would phase out future elephant captivity in Canada, but the time to act, to hopefully be able to safely move Lucy to a sanctuary to peaceably live out her days with other elephants, is now.

We can and must do better for animals.

R.I.P. Kiska. Swim free.

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; she is erstwhile adjunct professor of animal law at UBC’s Allard School of Law and faculty, Capilano University. Shroff 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 or LinkedIn

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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