TEST 2 Flashcards
ARBITRARY LAW
no rational bases for it
- Ex: everyone has to wear red on Fridays (has no meaning
- Overstretching, going too far
- Not achieving not justified
TWO TYPES OF BSL
- Specific restriction and bans -> mostly directed towards pit bulls
- Regulated via ordinances
- License, liability insurance, photo verification, and other information
- Enclosures with walls, tattoos
- Regulated via ordinances
COCHRANE V ONTARIO 2008
- He argued on section 11D “presumption of innocence”
- The onus is on the crown, they were already assuming he would be dangerous
- Despite this he lost
- Section 9 also, life liberty and security, “I have a right to the dog I want”
DOLA CONSTITUTIONAL CHALLENGES
Ø Legislation arguably is vague, violates due process (substantive and procedural) and equality under the law
Ø On what legal grounds can we challenge this legislation?
- Freedom of expression (violates choice)
- Association (advocacy)
- Equality rights
STRICT SCRUTINY ANALYSIS
Ø Most cases face a minimum scrutiny analysis
Ø In order to constitute a challenge, the rationale for a law must be connected to a legitimate legislative objective
Ø Strict scrutiny analysis only applied when there is a question of fundamental rights - Pits are neither a class or have a fundamental right - Thus, BSL is constitutionally valid and legislated under police powers
EQUAL PROTECTION
Ø Is there a rational purpose for the singling out of a breed is the only criteria used to support the minimum degree of judicial scrutiny
Ø Equal protection is interested in: 1. over-inclusiveness or under-inclusiveness 2. Arguing on basis of reasonableness of BSL
Ø If objective of prohibition Is connected to objective of legislation, difficult to make a case for equality protections
VAGUENESS
Ø Is there a rational purpose for the singling out
Ø Procedural rules under due process (DP) are also vague (not just the substantive part)
Ø Ordinances violate DP because they do not provide sufficient information or time for owners to respond
- Plus, vet/breeder records and mixed breed types are difficult to prove
No fundamental right is at stake, therefore only a minimum
2 ELEMENTS NECESSARY FOR BSL TO WORK
- Reasonableness of banning one type of based on stereotype (individually argument)
- Property classification- owners should be held accountable
- Regardless of breed, laws should aim to ensure responsible ownership
- Ex: protocols around containment, strict liability and punishment for violations
- Property classification- owners should be held accountable
What is status of animals in divorce cases with respect to property division?
Ø 3 strands (principles/theoretical approaches):
1. living property argument 2. BIP (best interest principle) 3. Property
HOUSEMAN V DARE
specific performance granted in civil dispute (refusal to turn pet over)
- Specific performance: you are entitled to perform, you must show something
Ø Emotional needs
- Healing aspect of companion pet, security, analogous to BIC standard
LEGAL TESTS- ESTABLISHING CUSTODY
Ø Property
Ø Establish claim to property title
Ø Whoever can show this, wins custody
WHAT ARE THE COURTS LOOKING FOR?
Ø You can pay expenses
Ø Receipt of purchase (grey area, could be gift)
Ø Pet establishes a bond (grey area)
ESTABLISHING CUSTODY
BIP
Ø Two criteria to be established first:
1. Custody forbidden to any party who poses immediate threat to animal
2. Bond between human and pet considered
FOCUS ON OBJECTIVIZATION (the fact that pets can’t make their own decisions)
Ø Pets can’t make their own decisions, generalization/positive obligation within legislation to do good by the animal
Ø Can take property analysis or principle analysis
WHEN PROPERTY TEST DEPLOYED (ARRINGTON V ARRINGTON 81)
- Property status (wife awarded custody while husband has visitation)
- Critique- judge used property law (claims to animal) to determine visits (doesn’t work)
BROWN V LAROCHELLE
precedent: garder Simpson v cross
- better property claim must be considered to pick between the 2
- worst result: dog is joint property
- joint property problem because they usually sell and split assets, but selling the dog would cause more pain
- when desire not to let asset leave the family, a bidding war is held , but not in the case of something with intangible value
- therefore an attempt at a principled analysis was the outcome
DV/ AA LEGISLATION
no specific legislation on family violence in Ontario, falls under criminal code
LINK OF AA AND DV
Ø Illuminate the precursors for violent behavior, detection and invention (for both animals and humans)
Ø Offers a justifiable and justiciable rationale for stronger cruelty legislation and stricter sentencing
TERRORISM LEGISLATION
Ø Terrorism type legislation introduced to criminalize for loss of property (animals) and or communication records
- US federal animal enterprise terrorism act (2006)
- Ontario is using this legislation to define protesting as terrorism
Ø Further laws criminalize concealment for purposes of entering to disrupt /release
- Racetracks
Ø This includes AG-GAG, forbidding and criminalizing recordings of operations and making false statements
WHAT LAWS DOES FARM ANIMALS FALL UNDER
Ø No federal laws governing the treatment of farm animals; rely on CCC to address cruelty
Ø CCC does not include a contextualized understanding or incorporation of prohibitions specific to industrial animals (ex: beak cutting)
Ø Rely on codes of practice (non-binding) and “distress” requisite
- Rules are self-referential
Ø Results: ambiguity around what’s accepted- then potential for exploitation
Ø and status quo
AG-GAG: PROVINCIAL SNAPSHOT- ONTARIO (2019)
Ø Clear effort to target disruptors through agro, terrorist, defence type legislation
Ø Bill 156 an act to protect Ontario’s farms and farm animals from trespassers and other forms of interference
- Ex: food contamination
Ø Unauthorized entry and entrance on false pretenses
Ø Focuses on food supply but also is far-reaching because it deals with motor vehicle transport
Ø All in an effort to quell protest
AG-GAG 3 PERIODS
Ø Defined as anti-animal rights and anti-food justice laws
Ø 3 periods
1. Food disparagement laws - Veggie libel laws used against critics 2. Criminalization 3. Ag-gag 2.0 Ø Challenged on first amendment grounds Ø Of 11 laws promulgated, 5 struck down
LINKING AG-GAG TO FREEDOM OF EXPRESSION
Ø Provision: the protection of freedom of expression is premised upon the fundamental principles and values that promote the search for and attainment of truth, participation in social and political decision making and the opportunity for individual self fulfillment through expression
Ø The SCC maintains that the link between freedom of expression and political processes is “perhaps the linchpin” of section 2(b) protection
Ø Free expression is key to democratic governance
OTHER 2 RATIONALES FOR PROTECTING FREEDOM OF EXPRESSION
- Encouraging the search for truth through the open exchange of ideas
- Fostering individual self actualization thereby, upholding human dignity
KEEGSTRA
- DOES ACTIVITY HAVE EXPRESSIVE CONTENT
- EC is like hate speeches
- DOES THE METHOD LOCATION REMOVE THE PROTECTION?
- School, therefore no - IF THE EXPRESSION PROTECTED BY SECTION 2B, DOES THE GOVERNMENT ACTION IN QUESTION INFRINGE THAT PROTECTION, EITHER IN PURPOSE OR EFFECT?
2 CORE PROVISIONS (AG-GAG)
- INTERFERING WITH A MOTOR VEHICLE AND
- INTERACTIONS WITH ANIMALS
CONTENT SPEC VS CONTENT NEUTRAL SPEECH
Ø Specific type (content-based) of restriction (not content neutral type)
Ø State could justify this restriction as content neutral on basis that trying to protect against spread of disease (physical consequences of the expression- broader public interest)
INL
There are no intentional legal frameworks governing protection of service animals
International Humanitarian Law (IHL), the legal framework governing warfare, does not include animals
Animals are precluded from international law, and animals of foreign entities have no protection
Service animals can be destroyed
humanitarianism
Unlike humans, animals are incapable of understanding inherent risk
Constituted as more expendable than humans (utilitarianism) and animals can be more efficient at certain tasks than humans
Case example: the Umm-Qasr port in Iraq in 2003. The US deployed trained dolphins to detect underwater mines. Humanitarian supplies were destined for that port. Hovereve, due to the murky water, human divers could not have been used
Paradox - military providing humanitarian aid yet keeping dolphin in confinement, subjected to forced labor and harm
JUST A WAR DOCTRINE
Framework to contemplate the good and bad/right and wrong of war
Rules developed to evaluate the justiciability of war
There are essential moral components of a war: jus Ad Bellum (the right to war) and Jus in Bello (the correct conduct in war)
NATRUAL VS POSITIVE LAW
Flows from natural law - anything that brings ‘human’ suffering should be deemed unacceptable
Natural law resists animal as deserving moral concern on basis on lack of rationality
Positive law resist legal status on basis that animals can not claim rights
ANIMALIZE IHL
No legal protection under IHL (stated before) despite consequences for animals (includes ecosystem)
IHL incredible anthropocentrically oriented
The animalization includes:
- Clarify existing IHL
- Progressive / purposive interpretation of IHL
- New treaty development
Objects of protection - sentient beings - subjects of rights
CONFLICTS WITHIN THE PUBLIC/PRIVATE DICHOTOMY
- Controversy around the role of prosecutors in monitoring overseeing enforcement by SPCA
- Affirmed the constitutional and statutory power to supervise those activities
- No way to evaluate success because of ad hoc nature of spca/ enforcement activities
- Jurisdictional differences in who or how shelters are organized
DEFINITION TERMS (SHELTERS)
ANIMAL CONTROL: state entity sheltering animals
HUMANE SOCIETY: QUASI STATE , non- state entity that has entered into an agreement with a jurisdiction to enforce animal control (ex: care, housing euthan)
RESCUE ORG: non-governmental entity, foster home-based or facility
- For non profit
QUASI LEGISLATIVE OPTIONS (SEHLTERS)
- Development of accords and coalitions , can develop into codified laws- black letter law
2, Not to develop body of laws with respect to transfer but rather agree to work together by building a common discourse
- Language and set of practices to relieve tensions between shelters and rescue organizations
Ø Critique- certain rescue groups want right to take possession of animals awaiting euthanasia
NON LEGISLATIVE SOLUTIONS
Ø Deploy knowledge sharing strats, between stakeholders
Ø Vets, prosecutors, rescue orgs, shelters
Ø Collaborative model, funded through charity
Ø Alternative to legislation for transfer of shelter animals
Ø Critique: that is if we don’t legislate this, not all groups will cooperate, rescues will not report on shelters (abuse)
Ø The mandated legislation will force the shelter to work with external stakeholders in order to meet a standard of practice (code)
WHY WE NEED LEGISLATION IN THIS AREA (SHELTERS)
Ø No regulatory, statutory legal framework guiding the operation of pet rescues (profit, non-profit/charitable)
1. Failure to meet standard of care/cruelty- facilities and healthcare
2. Hoarding- pathological condition
3. Rescues place demands on shelters- cherry picking the adoptable animals and leaving undesirable ones at the shelter
4. PROFIT
5. Public safety issue, ex:
