Beastly Dead

• Author: Vaughan Black
• Position: Professor (retired), Schulich School of Law, Dalhousie University
• Pages: 1-30

Beastly Dead

Vaughan Black*

is article explores whether the core concept in Canadian animal welfare law, the

prohibition against causing unnecessary suering, should be augmented by a bar against

unnecessary killing. Where humans are involved, the law regards both their suering

and their death as harms to them. However, where animals are concerned, although

pain is viewed as injurious to them, their death, at least in the eyes of the law, is not.

is paper suggests that asymmetry may be unjustied, both in terms of what we are

coming to know about animals (namely that some of them may regard themselves as

persisting subjects who are wronged by an early death) and in light of public reaction

to some recent incidents of the killing of animals by humans. A recent law reform in

one Canadian province has opened the door just a crack to the notion of a proscription

against unnecessary killing of animals. is paper suggests that consistency and coherence

of the legal order require further expansion of such an oence and points to resources that

can guide legislators and judges in that task.

* Professor (retired), Schulich School of Law, Dalhousie University. anks

to Andrew Fenton, Jodi Lazare, Andrew Lopez, John MacCormick, Letitia

Meynell, Margaret Robinson, Katie Sykes, Caroline Vardigans, and Sheila

Wildeman for comments on a draft.

2

Black, Beastly Dead

How can it be explained that we are not allowed to kick

farmed animals, while we are allowed to kill them?1

As with most western countries, in Canada the question of animal

welfare has focused on minimizing suf‌fering. e duties humans

owe to animals, or perhaps just owe to ourselves with respect to animals,2

centre on not inf‌licting bodily pain. When this concern came to be

expressed in criminal law it was f‌irst put in terms of a prohibition of

wantonly or cruelly abusing or torturing animals.3 Later, the notion of

cruelty was sidelined and the Criminal Code’s focus shifted to forbidding

the inf‌liction of pain, suf‌fering or injury.4 More recently, there has

been the addition of a ban on causing animals distress.5 ese terms

— cruelty, pain, distress and so on — are not synonymous. ey are

related, however. e various legal bars on imposing suf‌fering on animals

are founded on the thinking that conscious pain is an evil that should

be reduced and the acknowledgement — once contested, but now not

1. Tatjana Višak, Killing Happy Animals: Explorations in Utilitarian Ethics

(London: Palgrave Macmillan, 2013) at 2.

2. e suggestion that in Canadian law duties to animals might only be

derivative of duties owed to humans is occasioned by the Supreme Court

of Canada’s judgment in R v Malmo-Levine, 2003 SCC 74. ere, at para

117, the court took the view that criminalizing cruelty to animals rested

on “of‌fensiveness to deeply held social values” rather than on deterring

harm to an entity to whom direct duties were owed. is ref‌lects a

position associated with Immanuel Kant, “Duties Towards Animals and

Spirits” in Benjamin Nelson, ed, Lectures on Ethics, translated by Louis

Inf‌ield (New York: Harper & Row, 1963) 239 at 239–41.

3. An Act respecting Cruelty to Animals, SC 1869, c 27, s 1.

4. RSC 1985, c C-46, s 445.1(1)(a). It was sidelined rather than eliminated,

in that, although the Code’s substantive of‌fences regarding animals no

longer employ the term ‘cruelty’, that word lingers vestigially in the

heading of the part in which those of‌fences are contained. is does not

stop courts and scholars from referring to s 445.1(1)(a) as the animal

cruelty of‌fence (e.g. R v Malmo-Levine, supra note 2 at para 117, Gonthier

& Binnie JJ; R v W (DL), 2016 SCC 22, at paras 77 and 92, Cromwell J).

5. is term is found in a number of provincial animal welfare statutes: e.g.

Animal Protection Act, SNS 2018, c 21, s 26(1); Animal Protection Act,

RSA 2000, c A-41, s 2(1); Animal Welfare and Safety Act, SQ c B-3.1, s 6.