MIDTERM Flashcards
COLOUR OF RIGHT
- Sufficient power of right
- “this is my property and I have authority over it”
- Used in claiming property
- Burden on you to show by mistake and belief that this property is yours
TWO APPROACHES TO ANIMAL LAW
- ADVOCACY (RIGHTS BASED)
- advocate rights for the animal - DESCRIPTIVE (LEGALISTIC)
- working with the law that’s on the book
BLACK LETTER LAW
purely on the books
ADVOCACY APPROACH
- Animals put on earth to serve humans
- PETA (example)
2. Maltreatment must cease via laws - Using cattle, for meat
3. Grant legal righthood - Animals do not have legal standing
- Animal cannot communicate, requires us as an “interested person” to defend them
- PETA (example)
DESCRIPTIVE APPROACH
- Not looking to bring about change, just working with the law that is already there
legal profession unable to represent clients or defend animals adequately- System of law is constrained and constraining: binary but also discretionary
- Numerous sources and areas/fields of law dealing with animals
Ø Civil, criminal
Ø Tort (who gets the animal)
Ø Patent (you biologically change an animal, is it patent? a group like PETA will come in and say no)
Ø Medical (buy a horse and then it dies right away, what does the contract say?)
Ø Commercial
Ø Contract
Ø Environment
Ø Municipal
CASE RIGHTS/ ADVOCACY WITHIN THE LAW (2)
- RIGHTS BASED
- REFORMIST
RIGHTS BASED APPRAOCH (“RIGHTLESS LEGAL SUBJECTS”)
- GOALS: grant legal status of animals and decrease exploitation
- Born from animal law movement
- Animal law is synonymous with animal rights (key to legal education)
- Involves a paradigmatic shift- promote deploying rule of law and legal tooks to master comped human / animals relationships
- EX: companion Animals
Ø Scope
Ø Character
Ø Institution
AIM OF RIGHTS BASED APPROACH
- Protection under benefit from the law
- Monumental grand scale shift
- Redefinition- property to persons/ non human entities
- Practice by lawyers who seek social change —> social movement
- LAWYERS: rep clients, officers of the law, citizens, (denotes, ethics, reform)
REFORMIST APPROACH
- Welfare contingent- less fundamental in orientation
- GOALS: suffering an unnecessary pain and well-being but no change in legal status (improve “lot)
- Idea that we do not need to confer rights to animals but can be nonetheless protect against harm
- EX: animals can not legally sure for maltreatment but are shielded against cruel acts
AIM FOR REFORMIST
- Permit damages when there is negligence, intentional killing, and emotional distress
- Allow for cause of action when companion animal is lost
- End agro practices (e]EX: multiple egg laying hens in cages, incubation- pain felt at 50% of stage)
- Denounce breeding, puppy mills
Seek damages from government agencies for failure to protect in cases of animals for research, marine mammals and endangered species
PROS AND CONS OF PUPPY MILL
PROS:
- Fines (10K-25K) and more for each dog on top of that
- Cannot breed under 1 year old
- New law strives to make animal cruelty cases easier to convict
CONS:
- No new money or specialized puppy mill inspectors
- These laws could result in people doing it even more in the dark since they have to be hidden away
- No way to know where they are
- Gov not interested in mandating licencing
ANIMAL LEGISLATION CANADA
Ø Preface- from 1892 until present, few if any significant changes have been made to the federal anti-cruelty legislation in Canada, despite several consultations and bills presented before the house of commons
- Ex: horse meat, we cannot stop people from eating because of culture, but we can make the end of their lives less cruel
Ø Compared to the other provinces, Ontario has one of the strictest animal welfare systems although it’s efficacy is unclear given the lack of case law
PAWS (PROS AND CONS)
PROS:
- province ban/ restrict breeding of wildlife (old- municipal jurisdiction) basically you can be banned from having a pet
- Distress includes physiological state of animals
- Accountability- inspections now conducted by gov (but also bad because there’s not enough gov workers)
- Better training for inspectors
Higher max penalties
CONS:
Ø Definitional issues- what is distress? What animals are prohibited to breed or possess?
Ø Call for a stronger, more explicit list of prohibitions
Ø Warrants - who has the power to get on / search your property
PROS AND CONS OF FED LEGISLATION
Ø Fed- a ban crosses all provinces, stigma, bigger penalty (indictable and summer, fine and imprisonment)
Ø Provincial enforcement agencies do not have power to lay charges under CCC -> RCMP required in this case
Ø YOA -> 12 YEARS -> PROSECUTION
Ø Must satisfy higher burden of proof and requisites
- Ex: no other approach, specific intent, onus on crown to prove causation
PROS AND CONS OF PROV LEGISLATION
Ø Prov more often used than fed
Ø Broader
Ø Lower burden of proof , strict liability offences not absolute
Ø Standards of care
Cost of recovery and rescue covered in. some provinces
PAST LEGISLATION
Ø Human centered
Ø Focuses on killing without lawful purpose
- Critic: defining animal, under federal legislation “ animals kept for lawful purposes”
Ø No moral status (north American context) countries like Columbia do let animals have a standing in court
Ø Interests of animals only protected in so far as human have interest in those protections
Ø 12 additional bills introduced since 2003
Ø Bill C158- focused on individual acts of violence
Does not solve for exploitative practices, industrial, commercial context
OPPONENTS
- Humanization -> animal rights
- Not about cruelty, lose “colour of right”, slippery slope, court back log
- Complexities of ominous bill
- Radical modifications, removing animals from property classification section of CCC, lumping provisions (instead, create new bill) - Criminalization
- Economic interests of animal-use industries, targeted and wanted more precise clarification (ex: brutal or unnecessary pain) branding practices
DEONTOLOGICAL PERSPECTIVE
- Characterized as non- consequentialist
- Reaction to singer -> liberationist stance
- GIST: morally unacceptable to permit institutionalized exploitation of animals for any reason
- Equal value concept:
- Moral agents and moral patients:
Ø Both have rights; one has moral obligation and choice, one is morally unaccountable
To accept that animals have rights, they must claim them, here we can still have moral rights, moral obligation from humans to treat animals with respect
FEMINIST CARE PERSPECTIVE
- In response to singer, theory of “ethics of care” emerged
- Focus on relational connections, responsibility, caring and empathy
- Argue that other theories are “masculinist” in nature and preoccupied with scientific rationalism
- Concerned with suffering of animal and socio-cultural economic and political systems -> suffering
- Interested in context and adopts a situationist approach
Ø Rejectionist of dualist conception of humans as dominant over other sub- species
UTILITARIANISM PERSPECTIVE
- Start with Bentham- moral calculations are necessary because animals feel pain
- Fundamental to law and morality is the idea that humans are obligated not to inflict harm on those who avoid pain
- For Bentham and Singer- it is not of importance as to whether one can form reason but rather that one can suffer
- Animals should not be afforded rights but consideration
- Because rights don’t apply the same way to animals
- The capacity to experience suffering is a precondition of interests
SINGERS ARGUMENT FOR ANIMAL EXPERIMENTATION TO ILLUSTRATE THE UTILITARIAN MODEL
- Singer unconcerned with “rights” but rather consequences to determine right from wrong
- Singer is in support of animal use so long as the benefits outweigh the costs
- Ex: experiments
GREEN CRIM PERSPECTIVE
- Green crim thus focuses on “those harms against humanity, against the environment, and against non-human animals committed by both powerful institutions and also by ordinary people” (bernie and south, 2007)
- Ex: rights given to bodies of water
CRIMINOLOGY AS SPECIEIST PERSPECTIVE
- Focuses on crimes committed against animals, environments
- Traditionally, crim has ignored the effects of crime on animals (passive actors v moral patients)
- Tied to this is the role of powerful institutions in society and powerful people
- Social justice aim
Ø Social inequalities, unjust abuse of power -> speciesism aka discrimination
Ø and normalization of harm
CRITICAL LEGAL THEORY PERSPECTIVE
- Very little legal analysis of animal rights
- CLS promoting greater theorization of animal rights- this is what we are doing here!
- Legal writing mostly influenced by extralegal (mostly moral/ ethical) understandings of rights
- Can we juridify animals without relying on importing morality into the framework?
TWO TYPES OF LEGAL ANIMAL RIGHTS
- SIMPLE- peripheral / non-fundamental, legal rights that are easy to contravene (you can infringe on them easy)
- FUNDAMENTAL- correlativity with human rights, stringent, and less chance of infringing them
WHAT ARE THE ADVANTAGES OF FUNDAMENTAL RIGHTS FOR ANIMALS
- PROCEDURAL
- SUBSTANTIVE
- TRANSFORMATIVE
PROCEDURAL
Ø Can achieve “standing” and improve the enforcement problem (lack thereof)
Ø Animals as “interested parties/ persons” and have standing in court
Ø Improve the enforcement problem
Ø Enforcement would become decentralized to other agents and be demanded via rights by animals themselves
Ø Instead of having one agency, it would be expanded to other areas, like the police, RCMP, they would all be able to enforce animals rights
Ø Requires access to justice to invoke such rights and procedural protections and legal righthood is the vehicle
REQUISITES FOR PUBLIC STANDING
Ø Applicants must demonstrate
1. There is a serious justiciable issue
- It would put the justice system into disrepute
2. The applicant has a "real stake or genuine interest" - "interested persons" 3. In all the circumstances, the lawsuit would be "a reasonable and effective way to bring the issue to the court" - There is something fundamental at the core here that must be addressed by the courts
LEGAL PROTECTIONS REQUIRE 3 ELEMENTS TO BE ENHANCED (SUBSTANTIVE):
- EQUALITY
- SUBSTANTIVE GUARNTEES
- ELEVATING BURDEN TO THOSE WHO COMMIT INFRINGEMENTS
TRANSFORMATIVE
Ø Build a legal infrastructure that permits increments of change
Ø De-normalize practices; help to instill normative boundaries
Ø Known as “progressive realization” (overtime, not going to happen overnight)
Ø Building up of animals rights into the legal landscape
public vs private fundings
Ø Public fundings (BATCH): the state will set aside 1 million for example, you have discretion to divide it up
Ø Private fundings (PATCH WORK): private donors, philanthropy, volunteers (Ontario for example) - creates inequities between APO groups - APOS HAVE 8 HOUR TRAINING -
WHEN TO TAKE CUSTODY
Ø Failure to relieve distress after reasonable time
Ø Environment is causing distress
- Mental health issues for example
Ø Immediate action to remove animal from critical/ present distress
Ø The use of care agreements are required if SPCA returns animal to owner
Ø SPCA has power to
- Keep animal in custody if conviction upheld
- Adopt, sell
- Demand owner to pay costs associated with seizure (Ikea monkey $83,000)
HOW ARE CHARGES LAID
Ø 3 options: PAWS, CCC, both (multiple charges common and necessary)
Ø PAWS: only for minor violations
Ø When charging under PAWS AND CCC- intent should be for prosecution to arrange a plea bargain with the provincial law
- Problem: enter into plea bargain/ joint submission because of cost deterrents (you get what you want : admit guilt, but charges are reduced, and no media coverage since it happens behind closed doors) transparency element is gone, therefore you don’t feel you have accountability
- CCC reserved for serious crime (violence)
- Concurrence with other serious crimes, one complaint brought forward
- A request for charges needs additional information, evidence
HOW ARE CHARGES ASSESSED?
- LIKELIHOOD OF CONVICTION
- PUBLIC INTEREST
WHAT ARE THE REQUISTES FOR YOU UNDER THE LAW
- Duty of care to provide food, etc. or to make alternate arrangements
- Actus reus only required (act or omission) and reasonable person would have foreseen the consequences
- Only if caught killing the hens; livestock legislation would influence this defence
- Anything related to agro: the punishment is harsh - Reasonable force, lawful excuse only in way that does not cause unnecessary suffering
- “owner” is broad, no proof of ownership required under the law
R V GREELEY: RULING OF THE COURTS
Ø HELD: Greeley was convicted, he had the right to use force
Ø However, the OMISSION (not letting off) made him guilty, he should have stopped his application of force
Ø Continuing to strangle the dog was not a reasonable or justified course of action. Roche had been negligent in allowing his aggressive dog to roam, Greeley’s action in killing the dog in the manner that he did was an excessive use of force and not reasonable of legally justifiable
SENTENCE:
- COND. DISCHARGE
- 1 YR PROB + $50 FINE
ELELMENTS OF THE OFFENCE : MEN S REA
Ø Intent under CCC
Ø “willfully” under section 429 (includes recklessness)
Ø Do not have to prove malice, or that offender knew animal was suffering or that the accused intended for the animal to suffer
Ø Standards: objective predictability and reasonable person
- Importance of predictability: to establish precedent, it’s fair AND THAT PEOPLE EXPECT that to happen if they did the same
- Subjectivity: no animal is more important than the other (inconsistency) , no bias, THE SYSTEM CANNOT WORK ON SUBJECTIVITY , does not have the time to look at each case specifically
ELELMENTS OF THE OFFENCE : ACTUS REUS
Ø Here, the CC is varied in terms of requisites
Ø CC- proof of injury or death, unnecessary pain, administering poison, neglect
Ø PAWS- focuses on concept and legal requisite of “distress”
- Wide ranging definition of distress, ex: potable water
