Bringing Animal Abusers to Justice Independently: Private Prosecutions and the Enforcement of Canadian Animal Protection Legislation

AuthorSophie Gaillard & Peter Sankoff
 
Bringing Animal Abusers to Justice Independently:
Private Prosecutions and the Enforcement of
Canadian Animal Protection Legislation
Sophie Gaillard & Peter Sanko*
If there is one thing that advocacy groups working on behalf of animals
tend to agree upon, it is that prosecutors and regulatory agencies are too
hesitant in enforcing legislation intended to punish acts of cruelty to ani-
mals. Whether this reticence stems from a lack of resources, institutional
will, commitment to the objectives of the governing legislation, conviction
regarding the seriousness of animal cruelty as a “legitimate” crime, or a
combination of these factors, the result is the same: prosecutions remain
a relatively rare occurrence in most jurisdictions. Canada is no dier-
* The authors would like to thank Megan Kheong for her research assistance.
We are using the term “cruelty” in this context as a generic term to refer to a
variety of oences involving animal abuse. There is no actual crime of “cruelty to
animals” in Canada, but the phrase is used in the Criminal Code, RSC , c C-
[Code] as the heading to introduce oences involving animal mistreatment. In this
chapter, we use the term “cruelty” to include both Code oences and other federal
oences that involve the mistreatment of animals.
Cass R Sunstein, “Can Animals Sue?” in Cass R Sunstein & Martha C Nussbaum,
eds, Animal Rights: Current Debates and New Directions (New York: Oxford
University Press, )  at ; Jennifer H Rackstraw, “Reaching for Justice:
An Analysis of Self-Help Prosecution for Animal Crimes” ()  Animal L 
at ; Peter Sanko, “Five Years of the ‘New’ Animal Welfare Regime: Lessons
Learned from New Zealand’s Decision to Modernize its Animal Welfare Legisla-
tion” ()  Animal L  at –.
308     
ent. The decision to investigate and prosecute animal cruelty oences is
le to regulatory agencies lacking the resources or motivation to bring
matters forward, and to the discretion of Crown attorneys, whose atten-
tion is monopolized by “real crimes” committed against human victims.
Consequently, it remains a dicult task to get even the most meritorious
cases into the courts.
Given the status quo, some advocates have begun thinking about tak-
ing a dierent course of action. Rather than trying to reform the system
in hope of developing a new prosecutorial framework, they have instead
turned their attention to an historical relic: the power held by any citizen to
institute a “private” prosecution against a person who has contravened
the criminal law. Although Canada, like most Western nations, conceptual-
izes crime as a harm committed against the state, rather than against an
individual victim, and the overwhelming majority of criminal charges
are pursued by State agents, the private prosecution retains its existence
as “a democratic tool to counter the absolute discretion of the prosecutor
and to remedy lazy, negligent, corrupt or ineective law enforcement.
Elaine L Hughes & Christiane Meyer, “Animal Welfare Law in Canada and
Europe” ()  Animal L  at  (the low rate of laying charges in Canada is a
major issue to be addressed).
Both agents have a role in the prosecution process. While it is the Crown attorney
who ultimately decides whether a prosecution should be brought, many of the
federal laws discussed in this article are enforced by regulatory agencies with
the power to recommend charges. It stands to reason that a failure to recommend
charges is as problematic as the prosecutor’s declining to proceed, and conse-
quently, both issues need to be discussed.
In Canada, public prosecutions are brought in the name of the head of state, Her
Majesty the Queen, who is traditionally referred to as the “Crown.” Prosecutors
are referred to as “Crown attorneys,” since they act on the Queen’s behalf. See
Stephen Coughlan, Criminal Procedure, d ed (Toronto: Irwin Law, ) at .
While the idea is now well entrenched, the acceptance of crime as a harm against
the state remains a relatively recent development that only took hold in the nine-
teenth century. See David JA Cairns, Advocacy and the Making of the Adversarial
Criminal Trial: – (New York: Oxford University Press, ) ch  at .
David M Paciocco, Getting Away with Murder: The Canadian Criminal Justice
System (Toronto: Irwin Law, ) at .
Kent Elson, “Taking Workers’ Rights Seriously: Private Prosecutions of Employ-
ment Standards Violations” ()  Windsor YB Access Just  at . See also
Kent Roach & Michael J Trebilcock, “Private Enforcement of Competition Laws
()  Osgoode Hall LJ  at –; Bill Hodge, “Private Prosecutions: Access
to Justice” () NZLJ  (private prosecutions are a useful weapon for the pur-
suit of justice).

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