Pet custody, wildlife protection, and a mixed bag of federal laws helped animal protection evolve
In January 2023, I sketched out a broad-based scorecard of animal law in Canada after boiling down a simple three-part formula for advancing animals’ legal interests: understand animals as sentient, take a stewardship approach, and include animals in access to justice considerations.
Based on this formula, how did animals’ legal interests progress in 2023 and early 2024?
One of the most groundbreaking developments in Canadian animal law came into effect in January 2024 with new “pet custody” provisions enacted in BC’s family law legislation, where companion animals are seen as sentient family members. Modernized family law legislation now accounts for two- and four-legged family members in a pet custody dispute. This is a seismic shift in animal and family law, as pets will be treated as valued individuals rather than disposable possessions. As I stated in the government press release: “This first-of-its-kind legislation considers the interests of the whole family, including relational aspects.”
BC courts now have specific relational considerations that they must consider when deciding who gets to keep the pet when a couple splits up. Courts will apply what could be deemed a “best interest for all concerned” test. The new provisions balance various rights and responsibilities, such as determining each person’s ability and willingness to care for the animal, the child-animal relationship, and risks of family violence or threats of cruelty to an animal. Couples may enter into private agreements to share possession of a pet, but if an agreement cannot be reached, spouses may go to either Supreme or Provincial Court for an order.
This legislation is a huge win for animals, and copycat legislation in other provinces is likely to follow.
In a significant, pro-animal wildlife case, R. v. Millar [2023] B.C.J. No. 2140, the accused unlawfully killed two bears who were not posing a threat. A vulnerable cub and sow suffered lingering and painful deaths. In ordering a 30-day jail sentence for Millar, the court explained why a fine is not enough:
“I question whether the history of charging a fee – or giving a fine – to offenders has had much of a general deterrent effect. I conclude that if the courts are to support the principle that we must preserve and conserve Canada’s wildlife habitat, sometimes a fine is not enough.”
A vital aspect of this case included Indigenous knowledge keepers who provided noteworthy evidence about stewardship and the sanctity and cultural significance of wildlife.
2023 showed some promising new developments in the federal animal law space, but we also have some sharp counterpoints showing animals locked out from accessing justice.
After decades, Canada’s ban on cosmetics testing on animals finally took effect in December 2023. This is a huge win for millions of lab mice, rabbits and others. With this legislation, Canada finally caught up with many other countries that have long since banned animal cosmetic testing.
The Canadian parliament also passed Bill S-5 to phase out toxicity testing on animals by 2035 –another win.
Canada’s wild animal and plant trade regulations were amended as of January 2024 to prohibit importing and exporting elephant ivory and rhino horn and hunting trophies containing these parts. Permits will only be issued for transportation to a zoo, museum, law enforcement investigation or scientific research. So-called big game hunters who go overseas to mercilessly kill elephants for their tusks or rhinos for their horns will not be allowed to obtain a permit to transport their “hunting trophy” into Canada. This is a win for animals and a blow to heinous trophy hunting.
Federal animal law bills are being considered to phase out the captivity of elephants, great apes, and likely additional species. These laws are built on the foundation laid down in the June 2019 national laws banning whale and dolphin captivity. The bills are like companion bills to the Jane Goodall Act, Bill S-241, An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (great apes, elephants and certain other animals).
Ag-Gag laws restrict undercover investigations, photographing and documenting what happens to animals on farms and slaughterhouses. In 2023, despite voluble concerns from animal protection agencies noting that it would silence whistleblowers and conceal animal abuse on farms, a federal Ag-Gag bill, Bill C-275, An Act to amend the Health of Animals Act (biosecurity on farms) passed the House of Commons. Expect to hear more about this controversial bill in 2024 that would amend the Health of Animals Act, making it an offence to unlawfully enter a place where animals are kept if they could be exposed to disease or contamination.
Ridiculously, despite the will of Canadians, celebrity attention and political promises, we still do not have a ban on the live export of horses for slaughter. It is inhumane for horses (or any other live animal) to be shipped overseas. We have two federal bills, Bill C-355, the Prohibition of the Export of Horses by Air for Slaughter Act, which aims to prohibit the export of live horses from Canada by air for slaughter and Bill S-270, the Horse Protection Act, in the Senate, inching along. However, neither has been enacted, and live horses are still being shipped overseas to their death. This is a notable animal law failure.
While we have had some promising legal developments advancing the interests of animals, Canada needs to pass outstanding federal legislation that recognizes animals as sentient, takes a stewardship approach and includes animals in access to justice considerations.
2024 is a leap year. That means we have one extra day to get it right for animals.
