Canada's Experiment with Industry Self-Regulation in Agriculture: Radical Innovation or Means of Insulation?

AuthorPeter Sankoff
PositionProfessor, Faculty of Law, University of Alberta
Canada’s Experiment with Industry
Self-Regulation in Agriculture:
Radical Innovation or Means of
Peter Sankof*
In Canada today, notwithstanding the existence of animal protection legislation at both
the provincial and federal level, very few laws actually govern the daily treatment
of animals on farms. Instead, the ‘rules’ explaining how these animals can be kept
exist in the form of Codes drafted by a coalition of agricultural industry bodies and
non-government organizations working under the aegis of an umbrella group: the
National Farm Animal Care Council (“NFACC”). In this article, the author provides
a preliminary examination of Canada’s evolving experiment with industry self-
regulation of animal protection standards. After outlining the legislative background
that led to the development of the Codes, the author considers NFACC’s institutional
membership, the role the organization plays in creating national standards of animal
welfare, how it drafts the Codes, and the legal status of these instruments. e strengths
and weaknesses of Canada’s code regime are then explored in detail.
* Professor, Faculty of Law, University of Alberta. anks to Holly Spurrell
for her research assistance, and to Anna Pippus for her insights.
Sankof‌f, Canada’s Experiment with Industry Self-Regulation in Agriculture
I. I
II. H B
III. NFACC: O  C P
A. e Creation of the NFACC
B. e Codes
C. Process
IV. S   C P
A. e End of the Legislative Vacuum: e Start of Discourse
B. Industry “Buy-in” to Certain Systemic Changes
C. Precision
D. Elimination of the Worst Practices
V. C   C P
A. e Ambiguous Nature of the Codes
B. e Players at the Table: Making Value Decisions
C. Public Input: Democratic Legitimacy
D. e Legal Branding Exercise: Controlling the Conversation
VI. C
I. Introduction
To put the matter as charitably as possible, Canada has never
been considered a world leader where animal protection law is
concerned, especially insofar as farm animals are concerned. While
its Commonwealth ‘cousins’ in the United Kingdom, Australia, and
New Zealand were enacting dramatically enhanced animal protection
laws through the 1990s and early 2000s, Canada’s federal government
stood pat, maintaining a 1950s-era framework that is normally referred
to in uncharitable terms like ‘outdated’, ‘antiquated’, and ‘woefully
(2019) 5 CJCCL
inadequate’.1 From 1999 through to 2015, a series of well-documented
attempts to amend Canada’s animal protection law in Parliament all met
with failure, and there are no signs of anything changing in the immediate
is is not to suggest that Canada’s legislative situation is entirely
stagnant, however. On the contrary, change is undoubtedly afoot for one
of the world’s biggest players in animal agriculture, and since 2005 new
1. “Falling Behind: An International Comparison of Canada’s Animal
Cruelty Legislation” (2008), online (pdf): International Fund Animal
pdf> (the last of these terms comes from a study undertaken by the
International Fund for Animal Welfare, which ranked Canada near the
bottom of Western nations with animal protection laws). See also John
Sorenson, About Canada: Animal Rights (Halifax: Fernwood, 2010) who
notes that Canada’s anti-cruelty laws are “antiquated, remaining basically
unchanged since the nineteenth century” at 154).
2. In 1999, the federal government made a signif‌icant attempt to revamp
the Criminal Code, RSC 1985, c C-46 [Criminal Code] provisions
governing crimes against animals. e proposed reforms were widespread
and fairly ambitious, modernizing the language of the Code, imposing
certain duties, and narrowing the mental elements required to establish
a conviction. e initiative could not get through a divided Parliament
and eventually died. See Lesli Bisgould, Animals and the Law (Toronto:
Irwin Law, 2011) at 87–96. e most recent attempt at reform was Bill
C-246, a reasonably ambitious private member’s Bill initiated by Liberal
MP, Nathaniel Erskine Smith, in 2015. Facing vociferous resistance
from the opposition Conservative party and many of Erskine-Smith’s
Liberal colleagues, the Bill was defeated at second reading. See Holly
Lake, “Animal Cruelty Bill Defeated” (6 October 2016), online: iPolitics
. For a critique of
the reasoning used to vote down the Bill, see Peter Sankof‌f, “Canada Still
an Animal Welfare Laggard” (13 October 2016), online: Policy Options
welfare-laggard/>. For an opposing view, see Robert Sopuck, “Animal
Rights Bill reatened Canadians’ Way of Life” (7 November 2016),
online: Policy Options
Sankof‌f, Canada’s Experiment with Industry Self-Regulation in Agriculture
measures designed to limit some of the ways in which farm animals can
be treated have been emerging on a fairly regular basis. But in contrast
to the developments taking place abroad, most of this change is being
driven by the agricultural industry. And here I speak not metaphorically,
in the sense of suggesting that industry is pushing for reform. Instead,
most of the new rules governing the treatment of farm animals are
being created by a coalition of agricultural industry bodies and non-
government organizations working under the aegis of an umbrella group:
the National Farm Animal Care Council (“NFACC”). As is the case with
most animal protection mechanisms, the extent to which the model
‘works’ for animals depends greatly upon your perspective. Still, one
thing is undeniable: the NFACC is now a major player on the Canadian
law-making scene, and it has seized control of the regulatory agenda in
farmed animal welfare for the foreseeable future.
ough the choice to cede regulatory decision-making to a private
body that is tasked with the job of creating rules its members must then
live by is not entirely unique,3 it raises many questions — questions
that are especially pronounced when the organization at issue is tasked
with enacting rules that help def‌ine how criminal and quasi-criminal
legislation will be interpreted, a situation that is unique.4 e NFACC’s
process of decision-making also raises concerns about the moral validity
of standards created by a group dominated by the very industries af‌fected
by those standards, and the overall democratic legitimacy of the process
in light of the way public input is considered. e ambiguous legal status
of the codes the NFACC creates is another matter to be apprehensive
3. Many institutions that are mostly private — albeit usually with some
government oversight — have the ability to create their own guidelines for
conduct, with law societies, who create the rules of professional conduct
that govern how lawyers operate, being a prime example.
4. What is also dif‌ferent is that the power to self-regulate normally tends
to be af‌forded to professional associations (e.g. lawyers, veterinarians,
doctors) who have a clear and delineated group of members who are not
permitted to operate their profession without adopting the set rules. e
NFACC does not work that way. Farmers are not required to belong to
any professional association, and the NFACC has no legal power to bind
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Despite the NFACC’s signif‌icant role in creating farm animal
protection standards, this ‘delegation’ of legal power by the Canadian
government has largely gone unstudied to date. In place for over 13 years,
NFACC Codes appear now to be a permanent f‌ixture on the Canadian
landscape, and scrutiny of their scope and impact is very much needed.
is paper is intended as an initial foray into this lacuna. Its primary
objectives are to explain the importance of the NFACC’s role to animal
protection law in Canada and demonstrate the need for further and
deeper analytical inquiry. e NFACC refers to itself, not incorrectly,
as the “national lead for farm animal care and welfare in Canada”,5
notwithstanding an organizational framework that lacks many of the
traditional checks and balances of a legislative body, and the fact that
what the group produces is not actually law, in the strict sense of the
word. What this means for Canada’s agricultural animals remains to be
seen, but further analytical scrutiny of this organization is essential if the
impact of relying upon the NFACC to ef‌fectively regulate protection
standards in the animal farming industry is ever to be fully understood.
In this paper, I will provide a preliminary examination of Canada’s
evolving experiment with industry self-regulation of animal protection
standards. In Part II, I outline the legislative background that led to the
development of the NFACC Codes, and attempt to situate these Codes
within the Canadian legal framework for animal protection. Part III
introduces the NFACC and explains its objectives and rise to prominence.
It then examines the NFACC Code-drafting process, and explores how
these instruments are developed. In Part IV, I highlight some strengths of
the new regimes, while Part V addresses a number of concerns.
II. Historical Background
In order to understand how the NFACC came to prominence in
Canada, some historical background is required, as the farming industry’s
involvement in Code drafting is, to some extent, a result of the legislative
5. “About NFACC” (24 August 2018), online: National Farm Animal Care
Council [NFACC, “About NFACC”].
Sankof‌f, Canada’s Experiment with Industry Self-Regulation in Agriculture
vacuum that existed before the organization’s inception.
Animal protection is a matter of shared federal-provincial responsibility
in Canada.6 e federal government has exclusive responsibility over
criminal law, which includes acts against animals that are regarded as
being immoral in nature.7 As a result, the Criminal Code8 contains the
standard sort of anti-cruelty of‌fences that should be recognizable to
anyone with even a basic familiarity in this area, prohibiting wilful acts
of cruelty that cause unnecessary suf‌fering and certain egregious acts of
6. A constitutional challenge in Ontario heard in May 2018 suggests
otherwise, contending that crimes against animals fall within the exclusive
purview of the federal government, and that large parts of Ontario’s
Ontario Society for the Prevention of Cruelty to Animals Act, RSO 1990,
c O.36, is unconstitutional as a result. See the Notice of Application in
Bogaerts v Attorney General of Ontario (13 October 2013), Perth 749/13
(Ont Sup Ct), online (pdf): Fix the Law .f‌
uploads/2013/09/Notice-of-Application.pdf>. ough this application
raises a number of interesting — and potentially meritorious — issues,
this is not one of them, and the federalism challenge is likely to fail. e
dominant theme in Canadian constitutional law over the past two decades
has been a desire to leave coordinate provincial and federal schemes in
place where it is possible to do so. See e.g. R v Hydro-Québec, [1997] 3
SCR 213 (use of federal criminal law power does not preclude provinces
from exercising own power to regulate independently or supplement
federal action). Animals legally qualify as property — a provincial area
of responsibility. Given the high threshold required for the criminal act
of cruelty against animals, there would seem to be plenty of room for
the provinces to legislate to protect animals from distress and regulate in
favour of their well-being.
7. By virtue of the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91(27),
reprinted in RSC 1985, Appendix II, No 5.
8. Criminal Code, supra note 2.
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neglect.9 e provisions are not intended to address suf‌fering of farmed
animals,10 but they do not exclude this either, which is problematic in its
own right. e statute provides the illusion that animals are protected in
every context, and is occasionally referred to as a safeguard when egregious
farming practices are mentioned, often in response to complaints by
animal advocates about there being no meaningful protection in place
9. S 446(1)(a) of the Criminal Code, ibid, provides that every one commits
an of‌fence who wilfully causes or, being the owner, wilfully permits to be
caused unnecessary pain, suf‌fering or injury to an animal or bird. S 446(1)
(b) of the Criminal Code, ibid, is the “neglect” of‌fence, punishing anyone
who, “being the owner or the person having the custody or control of a
domestic animal or a bird or an animal or a bird wild by nature that is
in captivity, abandons it in distress or wilfully neglects or fails to provide
suitable and adequate food, water, shelter and care for it”.
10. As Bisgould, supra note 2, puts it, while “there is no specif‌ic exemption, a
de facto exemption is either presumed or ef‌fectively written in, because of
the manner in which the provisions are interpreted” at 71. In R v Pacif‌ic
Meat Company (1957), 24 WWR 37 (BC Co Ct), the court explicitly
held that pain inf‌licted for the purpose of turning animals into food
was always necessary, a decision that seemed to curtail the possibility of
using the Criminal Code to prosecute farmers. As Bisgould, supra note 2,
puts it, “since that time, criminal law has not generally been invoked in
the context of the actual practices by which animals are used and much
deference is given to those in industry to know best how to handle their
animal property” at 74.
Sankof‌f, Canada’s Experiment with Industry Self-Regulation in Agriculture
for farmed animals.11 at said, it is generally understood by everyone
involved that the Criminal Code is not the statute of choice where farmed
animals are concerned.12
e Criminal Code is not the federal government’s only contribution
to animal management. Laws that address the handling and care of farm
animals can be found in a variety of statutes addressing issues as diverse
as food safety, disease prevention, and marketing of animal products.13
However, there are very few statutes containing provisions that deal
specif‌ically with keeping farmed animals safe from harm. Only two
pieces of federal law do this to any real extent: the Health of Animals
Regulations,14 enacted under the authority of the Health of Animals Act,15
11. “A Summary Report on Farm Animal Welfare Law in Canada” (2013)
at 2, online (pdf): National Farm Animal Care Council
ca/resources/Farm_Animal_Welfare_Laws_ Canada.pdf> [NFACC,
“A Summary Report”]; “How Do I Know Dairy Cows are Treated
Humanely?” (29 August 2018), online: Alberta Milk
(“[w]e have zero tolerance for animal abuse or neglect… [A]nimal
protection at the farm level is of‌fered under both provincial and federal
legislation. e two main laws protecting animals against abuse and
neglect on the farm are the provincial Animal Protection Act (APA) and
the federal Criminal Code of Canada”); “Animal Welfare” (29 August
2018), online: Cara (“[w]e take animal
welfare seriously and we do not tolerate animal cruelty in our supply
chain. Animal abuse is a criminal act in Canada, and violators should be
reported and prosecuted”).
12. See Sophie Gaillard & Peter Sankof‌f, “Bringing Animal Abusers to Justice
Independently: Private Prosecutions and the Enforcement of Canadian
Animal Protection Legislation” in Peter Sankof‌f, Vaughan Black & Katie
Sykes, eds, Canadian Perspectives on Animals and the Law (Toronto:
Irwin Law, 2015) 307 at 318 (discussing reluctance of authorities to use
criminal provisions in farmed animal context); NFACC, “A Summary
Report”, ibid at 3.
13. See e.g. Safe Food for Canadians Act, SC 2012, c 24; Canada Agricultural
Products Act, RSC 1985, c 20 (4th Supp). ere are no provisions dealing
with animal welfare in any of these pieces of legislation.
14. CRC, c 296.
15. SC 1990, c 21 [Health of Animals Act].
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has a number of provisions designed to protect animals during transport;
and, the Safe Food for Canadians Regulations,16 enacted pursuant to the
Safe Food for Canadians Act,17 sets out a variety of standards respecting
It would be wrong, thus, to say that the federal government and its
inspectors play no role in setting and enforcing animal welfare standards
in Canada. ey do — but only during the processes of animal transport
and slaughter.18 Subject to the comments about the anti-cruelty law made
above, and the possibility that it might eventually come to be used more
16. SOR/2018-108 (until the summer of 2018, these regulations were
enacted pursuant to the Meat Inspection Act, SNS 1996, c 6, and most
animal law publications refer to the Meat Inspection Regulations, NS Reg
46/1990, as governing the slaughter process).
17. SC 2012, c 24.
18. Even here, there is plenty to be critical of. See Bisgould, supra note 2 at
181, who decries the problems of under-enforcement in this area. See also
World Society for the Protection of Animals, “Curb the Cruelty: Canada’s
Farm Animal Transport System in Need of Repair” (2010), online (pdf):
World Animal Protection
f‌iles/ca_-_en_f‌iles/curbthecrueltyreport.pdf>, a detailed study on the
shortcomings of the Canadian Food Inspection Agency (“CFIA”), which
is responsible for enforcing these laws. e CFIA has conducted only one
major prosecution involving farmed animals, resulting in a conviction of a
major chicken processor on 22 counts of inhumane transport of chickens
under the Health of Animals Act, supra note 15, a f‌ine of $80,000 and an
agreement to spend $1 million on improvements to its transport facilities
as part of a probation order. See R v Maple Lodge Farms, 2014 ONCJ 212.
Sankof‌f, Canada’s Experiment with Industry Self-Regulation in Agriculture
widely,19 in just about every other area of a farmed animal’s life, regardless
of the species, federal law provides no guidance and no protection.
Legally, farmers are free to do whatever they like to their animals, so long
as their conduct complies with relevant agricultural law on food safety
and other non-welfare related requirements.20
In recent years, the more signif‌icant legislative developments
have come from the provinces, which have shown some willingness to
strengthen their own animal protection standards, even though these
19. See Katie Sykes, “Rethinking the Application of Canadian Criminal Law
to Factory Farming” in Sankof‌f, Black & Sykes, supra note 12 at 33, who
has argued that the Criminal Code permits such an interpretation and that
a greater number of criminal prosecutions in the farming context should
take place if the law was applied correctly. Nonetheless, recent experience
shows continued prosecutorial reluctance to use the Criminal Code for this
purpose. One of the worst recent documented cases of animal abuse took
place at a Chilliwack dairy farm, where three workers were videotaped
using chains and other implements to viciously beat a number of dairy
cows, including downed and trapped cows who could not escape the
abuse. Notwithstanding what seemed like a clear case of criminal level
abuse, the workers were only charged and convicted of provincial of‌fences.
See “Chilliwack Dairy Farm Workers Sentenced to Jail in ‘Precedent-
Setting’ Ruling” (29 May 2017), online: BC SPCA
[BC SPCA]. But see also Keith Corcoran, “Cruelty case: Life-time Ban on
Owning Animals for Farmer” (22 August 2018), online: LighthouseNow
owning_animals_for_f> (Nova Scotia farmer convicted of Criminal Code
of‌fence for starving animals).
20. See Rachel Godley, e Health of Animals Act and Regulations: An Example
of How Canada Has Failed to Protect Farmed Animals (Masters of Laws
esis, University of Alberta, 2014) at 56–59, online: Education &
Research Archive
(2019) 5 CJCCL
ef‌forts have varied in intensity by jurisdiction.21 To be clear, farm animals
are rarely a priority in these ef‌forts, which are usually directed at specif‌ic
issues involving companion animals such as puppy mills,22 pet shop
retailers,23 catteries,24 and the treatment of sled dogs.25 Nonetheless, like
the federal cruelty law, the legislation applies to all animals and extends
beyond the protective, though hard-to-meet, standards of the criminal
law, prohibiting anyone from causing ‘distress’,26 necessary or otherwise.
ese laws also impose clear duties of care upon those responsible for
animals. For example, Manitoba’s legislation,27 which is representative of
that found in most of the major provinces, sets out the following:
21. See “2017 Canadian Animal Protection Laws Rankings” (July 2017),
online (pdf): Animal Legal Defense Fund
uploads/2018/06/2017-Canadian-Rankings-Report-1.pdf> (ranking the
revamped legislation enacted in Prince Edward Island, Manitoba, Nova
Scotia and New Brunswick as being the best provincial animal protection
legislation in Canada).
22. See Quebec, Regulation respecting the safety and welfare of cats and dogs,
CQLR c P-42, r 10.1.
23. Animal Care Act, CCSM c A84, ss 26–34 (setting out detailed standards
for pet shops and licencing procedures) [Animal Care Act].
24. See Pet Establishment Regulation, NB Reg 2010-74.
25. In response to the horrif‌ic killing of sled dogs in 2011 (see Sam
Cooper & Sean Sullivan, “Massacre Horrif‌ies B.C.: Man Shoots 100
Sled Dogs ‘Execution-Style’ After Olympic Slowdown” (6 February
2011), online: e Province
4197145/story.html>) British Columbia enacted strict guidelines
regarding the treatment of sled dogs: Sled Dog Standards of Care
Regulation, BC Reg, 21/2012.
26. ough this term is still being def‌ined by the courts, it does not refer
to every level of discomfort endured by an animal. For example, the
Ontario Society for the Prevention of Cruelty to Animals Act, RSO 1990,
c O.36 [OSPCA Act], def‌ines it as “the state of being in need of proper
care, water, food or shelter or being injured, sick or in pain or suf‌fering
or being abused or subject to undue or unnecessary hardship, privation
or neglect” s 1. See also R v Ryan, 2017 ABPC 161, distress restricted to
“great physical or mental strain or stress” at para 22.
27. Animal Care Act, supra note 23 at s 2(1).
Sankof‌f, Canada’s Experiment with Industry Self-Regulation in Agriculture
2(1) A person who has ownership, possession or control of an animal
(a) shall ensure that the animal has an adequate source of food and water;
(b) shall provide the animal with adequate medical attention when the
animal is wounded or ill;
(c) shall provide the animal with reasonable protection from injurious
heat or cold; and
(d) shall not conf‌ine the animal to an enclosure or area
(i) with inadequate space,
(ii) with unsanitary conditions,
(iii) with inadequate ventilation or lighting, or
(iv) without providing an opportunity for exercise, so as to signif‌icantly
impair the animal’s health or well-being.
At f‌irst glance, these provisions unquestionably provide much stronger
and clearer protection for farmed animals than the federal laws, and
extend the potential to control improper or painful agricultural practices.
Still, while provincial animal protection laws have undoubtedly proved
useful in certain cases where animals are abused or the subject of
extreme neglect,28 they have not really af‌fected the overall dynamic for
farmed animals by guaranteeing better standards that can be applied
universally. e reason is because of an additional clause, present
28. Notwithstanding the def‌iciencies, to be discussed, these of‌fences
are prosecuted on a strict liability standard, and easier to prove as a
consequence. ere is no need, in contrast to the criminal provisions,
to show any intention to cause distress. For this reason, leaving aside
the worst cases of intentional cruelty or neglect, it is now common
for most charges involving animals to proceed under the provincial
legislation. See e.g. BC SPCA, supra note 19; Julien Gignac, “‘is is
Not Normal’: Ontario Mink Farm Charged with Animal Cruelty After
Activists Go Undercover” (12 May 2018), online: e Star .
says.html> (investigation into mink farm results in provincial charges
notwithstanding large scale def‌iciencies at farm).
(2019) 5 CJCCL
in every jurisdiction, indicating that the causing of distress or breach
of the standards of care is not punishable where it is the result of “an
activity carried on in accordance with reasonable and generally accepted
practices of agricultural animal care, management or husbandry”.29 As a
consequence, a farmer is permitted, for example, to conf‌ine animals with
‘inadequate space’ — however that might be def‌ined — so long as this is
the common practice within the industry.30
It stands to reason that this clause, which exempts traditional farming
practice from scrutiny even where such practices cause animals to suf‌fer,
limits the utility of provincial legislation in the agricultural context. It is
worth noting, however, that the Ontario law set out above does say that
the activity must be generally accepted and reasonable. is particular
wording has given hope to some animal advocates,31 who postulate that
there might be room to bring prosecutions where a ‘generally accepted’
practice was nonetheless the cause of considerable harm to animals, by
proving that the practice was not reasonable. is hope has been limited
by unfavourable judicial interpretation of the provisions, however.32
In the leading case of R v Muhlbach,33 a farmer escaped conviction
for mistreating cattle notwithstanding clear evidence that the animals
29. OSPCA Act, supra note 26 at s 11.2(6)(c).
30. As it is, for example, in layer hen facilities, where hens are conf‌ined to
small cages as a regular practice. See Code of Practice for the Care and
Handling of Pullets and Laying Hens, Ottawa: NFACC, 2017 at 12, online
(pdf): National Farm Animal Care Council
and_laying_hens_code_of_practice.pdf> [NFACC, Laying Hen Code].
31. See “Interview with Anna Pippus” (7 November 2016), online: Vegan
Creative , who notes
that “I think there’s a decent argument that even some of these standard
industry practices ought not to comply with existing laws, because they
aren’t ‘reasonable’ (the legislation requires this)”.
32. It is also limited by the way in which many of the provincial provisions
are drafted, as not all of them require standards to be reasonable. For
example, Manitoba’s Animal Care Act, supra note 23, exempts every
person whose conduct was “consistent with generally accepted practices
or procedures for such activity” s 2(2). See similarly Animal Welfare and
Safety Act, CQLR, c B-3.1, s 7 [Animal Welfare and Safety Act].
33. 2011 ABQB 9 [Muhlbach].
Sankof‌f, Canada’s Experiment with Industry Self-Regulation in Agriculture
had not been provided with water, that they suf‌fered from untreated
injuries, and that downed animals in a state of suf‌fering were present on
various parts of the farm. e trial judge and appellate court accepted
anecdotal evidence from fellow farmers that the accused’s actions were
not particularly egregious in the circumstances. Nor were they out-of-
line with what others would have done, which was enough to warrant
an acquittal. roughout, the trial judge drew favourable inferences in
favour of the farmer, ignoring evidence of dead cows, injured animals,
and empty water troughs.
Part of the problem, of course, lies in def‌ining what constitutes a
‘reasonable’ practice in the abstract, combined with the fact that the
accused’s evidence, supported by that of his next-door neighbour farmer
or other friends, is entitled to weight in the courtroom, especially since
an accused person gets the benef‌it of the doubt.34 ese issues of proof
have helped to limit the utility of provincial legislation with respect to
harms caused by traditional, albeit painful, farming practices, and made
prosecutors reluctant to bring cases forward unless the evidence of abuse
or cruelty is overwhelming.
In short, while Canada has no shortage of federal and provincial laws
designed to address the protection of animals, the fact remains that with
the exception of certain aspects of transport and slaughter, there is no
legislation that directly addresses the daily treatment and care of animals,
unless that treatment was malicious in nature or grossly inconsistent with
the way those animals are treated on other farms.
III. NFACC: Organization and Code Processes
A. e Creation of the NFACC
Beginning in the late 1980s and accelerating through the next two
decades, increasing public concern about the treatment of farm animals
sparked signif‌icant legislative reforms in a host of countries around the
globe. To take just three examples, Australia, New Zealand, and the UK
34. Part of the problem lies in the dif‌f‌iculty of getting farmers to testify
against one another, unless the practices are truly abhorrent.
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all repealed their archaic animal protection laws — which, at the time,
looked a lot like Canada’s laws do now — and enacted modern versions
designed to provide better animal care standards and more ef‌fective
methods for sanctioning those who ignored them.35
While Canadian legislators largely ignored this trend, farmers and
other players in the agricultural industry showed a keen interest in
what was happening. As had been the case in New Zealand, where a
modern Animal Welfare Act was initiated by requests from the farming
community,36 Canada’s farmers recognized that something needed to
change. Beginning as early as 1987, groups of farmers and collective
associations began meeting for the purpose of creating clearer standards
of care. eir aim was partially altruistic. Most farmers believe strongly
that animals must be properly cared for, and are disgusted by incompetent
or lazy farmers who let animals die of thirst or suf‌fer from a lack of
medical treatment. But there were economic concerns in play, as well.
Farmers also understand that negative publicity in the form of stories
about animal mistreatment is bad for business, and that it was important,
as an early NFACC publication made clear, to “delive[r] the message that
35. Animal Welfare Act 1993, 1993/63 (Tas); Animal Care and Protection Act
2001, 2001/64 (Qld); Animal Welfare Act 2002, 2002/33 (WA); Animal
Welfare Act 1999, 1999/142 (NZ) [Animal Welfare Act 1999]; Animal
Welfare Act 2006, c 45 (UK).
36. See Peter Sankof‌f, “Five Years of the ‘New’ Animal Welfare Regime:
Lessons Learned from the New Zealand’s Decision to Modernize Its
Animal Welfare Legislation” (2005) 11:7 Animal Law 7 at 11–13
[Sankof‌f, “Five Years”].
Sankof‌f, Canada’s Experiment with Industry Self-Regulation in Agriculture
farmers care for their animals and promot[e] responsible animal care”.37
e existing law did not do this. e problem was the disconnect between
consistently ‘winning’ — farmers avoiding punishment even in cases
where there was clear harm and a questionable rationale for imposing
it — and the growing discontent expressed by the media reporting on
horrible incidents that were going unpunished. In a sense, one could
make the case that the law was almost too favourable to the farmers. Few
people really want to encourage enforcement and prosecution of their
industry, but if everyone is ‘innocent’, it tarnishes the reputation of all
farmers equally.
ese trends eventually drove the agricultural community and the
government into each other’s arms. ough the federal government
had no apparent interest in creating or monitoring new legislation, it
was happy to support initiatives designed to encourage better welfare.38
Farmers were also happy to push this objective, especially when it could
be conducted on their terms. It allowed for “real progress on responsible
farm animal care, while helping to ensure animal agriculture is viable in
a climate of increasing market demands”.39
is desire for a national animal care organization led to the ‘birth’
of the NFACC in 2005, which launched with widespread involvement
37. Gordon Coukell, “A Message from the Chair” in National Farm
Animal Care Council, “Annual Report 2005–2006” (2006) at 3, online
(pdf): National Farm Animal Care Council
Annual%20Report%202006.pdf>. See also Sefecon Management
Consulting Inc., A Discussion Paper Setting out a National Approach to
Animal Care, June 2004 (provided by NFACC to the author) at 16,
which clearly links the two objectives, noting that “a proactive, rather
than emergency response, to farm animal care is preferred. Elevating the
level of professionalism within farm animal industries by raising the skill
and competency levels of livestock producers is a means of ensuring the
continued and future sustainability of livestock agriculture. Basic planning
on farm animal health and care will result in a pay of‌f. It is also important
to recognize that this is being driven by consumers who have a strong
opinion about animal care”.
38. “A Message from the Chair”, ibid.
39. Ibid.
(2019) 5 CJCCL
from the leaders of every signif‌icant agricultural sector in Canada,40
and support from at least one major animal protection group — the
Canadian Federation of Humane Societies — as well as the Canadian
Veterinary Medical Association. From the start, the endeavour has been
funded by Agriculture Canada, a federal agency, though the government
has no voting seat at the table, and no of‌f‌icial role in the direction of the
coalition. It funds the project and has observer status — nothing more.
Other provincial agriculture ministries have also been involved, though
government agencies are not permitted to vote on NFACC matters.41
e organization has come a long way from its early beginnings. e
NFACC has full-time support staf‌f, an extensive website, and a detailed
YouTube channel,42 with numerous videos explaining its procedures,
work, and processes. It has grown from 22 original members to 27,
the vast majority of whom are national organizations, and added 15
additional associate members, mostly companies or groups that are not
national organizations, including restaurants, retailers, processors, and
feed companies.43
e NFACC’s Mission Statement is as good a place as any to gain an
understanding of the group’s approach. It states that: “We believe that by
striving for consensus, realistic and lasting improvements to farm animal
care can be made”.44 is statement of purpose is not just a guiding
principle — it is an overarching theme discernible from every publication
that emanates from the NFACC. As Edouard Asnong, Quebec Pork
Producer and former Chair of the NFACC, has noted, “collaboration
40. is includes organizations indirectly involved in the agricultural use
of animals, like the Livestock Transporters Division and the Canadian
Restaurant and Food Services Association.
41. “Membership” (23 August 2018), online: National Farm Animal Care
Council [NFACC, “Membership”].
42. “National Farm Animal Care” (2018), online (video): Youtube>.
43. NFACC, “Membership”, supra note 41.
44. See “Development Process for Codes of Practice for the Care and
Handling of Farm Animals” (2018), online: National Farm Animal
Care Council [NFACC,
“Development Process”].
Sankof‌f, Canada’s Experiment with Industry Self-Regulation in Agriculture
amongst diverse stakeholder groups is the key to real progress”.45 is
collaboration extends to support for the process. e NFACC’s Code of
Conduct46 makes clear that all members must agree to support the Code
development process and the Codes developed through it.47
B. e Codes
e NFACC’s core task is the creation of Codes of Practice, “nationally
developed guidelines for the care and handling of dif‌ferent species of
farm animals”.48 e Codes are designed to be used “as guides and
extension tools in promoting sound animal care practices” and also
“form the basis of animal care assessment programs”.49 Not surprisingly,
though the Codes include a series of ‘requirements’, they do not read like
statutes or regulations. Instead, they look more like handbooks, serving
the NFACC’s primary purpose of establishing standards for its member
NFACC materials are ambiguous with respect to the legal force of the
Codes. At times, the wording loosely refers to the Codes as ‘guidelines’
or ‘standards’, and it is very unusual to see any discussion of lawmaking,
non-compliance or the potential for sanction. Instead, the focus is on
“providing information and education” and “serving as the foundation
for animal care assessment programs”.50 But at other junctures, the
NFACC stresses how important the Codes are, suggesting that animal
care includes certain “fundamental obligations” and “requirements”51
for agricultural producers. At another, the legal force of the Codes is
45. “Advancing Animal Care and Addressing Market Expectations — Final
Project Achievements Report — March 2014” (March 2014) at 6, online
(pdf): National Farm Animal Care Council
NFACC_Final_Report_2014.pdf> [NFACC, “2014 Final Report”].
46. “Code of Conduct for NFACC Members, Partners, Directors and
Support Personnel” (2018), online: National Farm Animal Care Council
47. NFACC, “Membership”, supra note 41.
48. NFACC, “Development Process”, supra note 44.
49. Ibid.
50. Ibid.
51. Ibid.
(2019) 5 CJCCL
recognized somewhat obliquely as “providing reference materials for
As will be discussed in greater detail in the section outlining the
shortcomings of the Code process below, the actual binding force of
the Codes is unclear — perhaps deliberately so, but in some provinces,
they unquestionably have a certain degree of legal status. Saskatchewan’s
animal protection legislation, for example, provides the following:
(3) An animal is not considered to be in distress if it is handled:
(a) in a manner consistent with a standard or code of conduct, criteria,
practice or procedure that is prescribed as acceptable; or
(b) in accordance with generally accepted practices of animal management.53
Most of the NFACC Codes have been prescribed as acceptable and,
as such, they constitute legal standards of conduct in Saskatchewan.54
Nonetheless, even in jurisdictions with enactments along these lines
there remains some uncertainty about how the Codes operate. To be
sure, as the provision indicates, anyone acting in compliance with Code
requirements possesses a valid defence to a charge of causing distress to
an animal, regardless of the animal’s state. What is less certain is whether
the Codes constitute a comprehensive guide to permissible conduct, as
one might expect. e wording of the clause, which is fairly consistent
with every province that uses this approach, suggests that one can escape
liability either by complying with a Code or by acting in accordance with
generally accepted practices of animal management.
As such, the Codes are not necessarily comprehensive, because the
defences operate as alternatives. To put it another way, the prosecution
in Muhlbach could have advanced the fact that an NFACC Code was
not being complied with, but Muhlbach could legitimately respond that
his action was nonetheless in accord with generally accepted practices in
52. Ibid.
53. Animal Protection Act 1999, SS 1999, c A-21.1, s 2(3) [emphasis added]
[Animal Protection Act 1999]. See similarly Animal Care Act, supra note 23
at s 2(2). Newfoundland and Labrador, Prince Edward Island and New
Brunswick have taken this approach as well.
54. Animal Protection Regulations, 2000, Sask Reg 1/2000, s 3.
Sankof‌f, Canada’s Experiment with Industry Self-Regulation in Agriculture
the community, securing an acquittal. Moreover, since compliance with
a Code operates as a defence to charges of causing an animal distress in
some manner, it is not clear that non-compliance means anything at all
in terms of constituting an of‌fence of any kind, so long as distress is not
caused by the particular conduct at issue. In short, the Codes have some
form of legal authority, but they are not — as the NFACC takes great
pains to reiterate — regulatory standards that must be met by those in
care of agricultural animals.
Whatever their legal status, it seems clear that creation and revision
of the Codes is intended to be a long-term, continuing process with the
NFACC acting as a permanent oversight body.55 e NFACC guidelines
insist that Codes will be reviewed every f‌ive years.56 is timetable requires
resources, as the Code process is a signif‌icant endeavour. e Code for
55. In the March 2018 report, “Market Relevant Codes and Communication
Leadership — Project Achievements Final Report” (March 2018),
online (pdf): National Farm Animal Care Council
NFACC_AR_2017-18.pdf>, NFACC Chairman Ryder Lee points
out that “it’s hard to imagine managing farm animal welfare without
NFACC [as] the processes and approaches that NFACC has developed
to address farm animal welfare are now cornerstones of Canada’s animal
welfare system and critical for maintaining public trust in how farmers
care for their animals” at 2. Interestingly, NFACC’s continued role is
dependent on federal government funding, which does not appear to
be fully guaranteed. Funding has tended to be provided through the
AgriMarketing Program under Growing Forward 2, a federal-provincial-
territorial initiative. See National Farm Animal Care Council, News
Release, “New Code of Practice for the Care and Handling of Veal Cattle”
(27 November 2017), online: National Farm Animal Care Council>.
56. NFACC, “Development Process”, supra note 44. e review process is
not as robust as drafting a new Code. Ef‌fectively, it involves a technical
committee providing a report to the entire membership of NFACC,
mainly about the continued relevance of the Code. Ultimately, the
NFACC must then decide whether to reaf‌f‌irm the Code, initiate
amendments, or engage in a full review.
(2019) 5 CJCCL
Beef Cattle57 took two and a half years to create, while the Pig Code58
took three and a half. ere were 18 Committee members meeting on
the Pig Code over that time period, and they came from dif‌ferent regions
of the country. is must have been costly.
Still, in terms of timeframes, the NFACC must be commended for
the progress it has made with the Codes thus far. After a trial run with
dairy cattle that resulted in a 2009 Code,59 the process of full-scale revision
began in 2010. Since then, the NFACC has managed to complete and
issue eleven new Codes covering: Beef Cattle (2013),60 Equines (2013),61
Farmed Foxes (2013),62 Mink (2013),63 Sheep (2013),64 Pigs (2014),65
57. Code of Practice for the Care and Handling of Beef Cattle, Calgary:
NFACC, 2013, online (pdf): National Farm Animal Care Council> [NFACC, Beef Cattle
58. Code of Practice for the Care and Handling of Pigs, Ottawa: NFACC, 2014,
online (pdf): National Farm Animal Care Council
codes/pig_code_of_practice.pdf> [NFACC, Pig Code].
59. Code of Practice for the Care and Handling of Dairy Cattle, Ottawa:
NFACC, 2009, online (pdf): National Farm Animal Care Council>.
60. NFACC, Beef Cattle Code, supra note 57.
61. Code of Practice for the Care and Handling of Equines, Ottawa: NFACC,
2013, online (pdf): National Farm Animal Care Council
62. Code of Practice for the Care and Handling of Farmed Fox, Moncton:
NFACC, 2013, online (pdf): National Farm Animal Care Council>.
63. Code of Practice for the Care and Handling of Farmed Mink, Rexdale:
NFACC, 2013, online (pdf): National Farm Animal Care Council> [NFACC, Farmed Mink
64. Code of Practice for the Care and Handling of Sheep, Guelph: NFACC,
2013, online (pdf): National Farm Animal Care Council
65. NFACC, Pig Code, supra note 58.
Sankof‌f, Canada’s Experiment with Industry Self-Regulation in Agriculture
Handling of Poultry (2016),66 Veal Cattle (2017),67 Bison (2017),68
Layer Hens (2017),69 and Rabbits (2018).70 In addition, the NFACC has
adopted — presumably with plans to revise — three ‘voluntary’ Codes
issued by the Canadian Agricultural Research Council, a predecessor
agency, between 1996 and 2003.71
In terms of setting the standards themselves, the NFACC has enacted
a number of guiding principles that, while not binding the group to
any particular result, establish a few basic parameters. First, any Code
instituted “should meet or exceed OIE standards”,72 though this is not a
mandatory requirement. Second, the Codes should be based on the “best
66. Code of Practice for the Care and Handling of Hatching Eggs, Breeders,
Chickens, and Turkeys, Ottawa: NFACC, 2016, online (pdf): National
Farm Animal Care Council
67. Code of Practice for the Care and Handling of Veal Cattle, Guelph: NFACC,
2017, online (pdf): National Farm Animal Care Council
68. Code of Practice for the Care and Handling of Bison, Regina: NFACC,
2017, online (pdf): National Farm Animal Care Council
69. NFACC, Laying Hen Code, supra note 30.
70. Code of Practice for the Care and Handling of Rabbits, Longueuil: NFACC,
2018, online (pdf): National Farm Animal Care Council
71. ese address Deer (1996), Canadian Agri-Food Research Council,
Recommended Code of Practice for the Care and Handling of Farmed Deer,
Ottawa: NFACC, 1996, online (pdf): National Farm Animal Care
Council [NFACC,
Deer Code]; Transport (2001), Canadian Agri-Food Research Council,
Recommended Code of Practice for the Care and Handling of Farm Animals:
Transportation, Ottawa: NFACC, 2001, online (pdf): National Farm
Animal Care Council
practice.pdf> (plans to update this beginning in 2018); and Goats (2003),
Canadian Agri-Food Research Council, Recommended Code of Practice for
the Care and Handling of Farmed Deer, Ottawa: NFACC, 2003, online
(pdf): National Farm Animal Care Council
deer_code_of_practice.pdf> (plans to update this beginning in 2018).
72. NFACC, “Development Process”, supra note 44.
(2019) 5 CJCCL
available science and other acceptable knowledge sources”,73 the latter of
which includes “anecdotal evidence and industry experience”.74 Still, the
Codes require that sources for decisions be referred to whenever possible
to provide a rationale for any standards imposed.75
ough science and international standards play a role, there is little
question that another value of prominence in the Code process is taking
things slowly, as a preference for gradual change — as opposed to any
sort of radical one — is mentioned repeatedly. Codes should strive for
“continuous improvement”, with recommendations that are “defensible”
and “changed as new and improved information is brought forward”.76
Not surprisingly, given the strong industry focus, there is also the
mandate that “requirements should be defensible, practical, manageable
and consider economic implications”.77
e Codes themselves are extremely detailed, with sections
governing a variety of matters ranging from feed to housing to health.
For lawyers, perhaps the most important sections are those that are likely
to have legal force. ese are what are def‌ined as ‘Requirements’, which
outline “acceptable and unacceptable practices”.78 Given the somewhat
uncertain legal status of the Codes, it is not surprising that the impact
of a failure to comply with a requirement is not made clear by the
NFACC, but it does note that a farmer who contravenes the Codes “may
be compelled by industry associations to undertake corrective measures
or risk a loss of market options”.79 In a rare mention of sanctions, the
NFACC Development Guide also notes that transgressions “may be
enforceable under federal and provincial legislation”.80 Every Code also
includes a variety of Recommended Practices, but notes that these are
73. Ibid.
74. Ibid.
75. Ibid.
76. Ibid.
77. Ibid.
78. “Codes of Practice for the Care and Handling of Animals” (2018), online:
National Farm Animal Care Council>
[NFACC, “Codes of Practice”].
79. Ibid.
80. Ibid.
Sankof‌f, Canada’s Experiment with Industry Self-Regulation in Agriculture
not obligations. Moreover, the NFACC makes clear that “a failure to
implement them does not mean that acceptable standards are not being
C. Process
e process of initiating or reviewing a new Code is fairly well-established.
Once interest from the relevant commodity or industry group has been
received, the NFACC will begin striking a Code Development Committee
(the “Committee”).82 Where this occurs, the public will be notif‌ied that a
new or revised Code process is underway via the NFACC website, at least
30 days before the f‌irst meeting of the Committee takes place.
e Committee’s f‌irst task is to establish an evidentiary record,
specif‌ically by canvassing the relevant science. e NFACC requires that
the Committee assemble a separate Scientif‌ic Committee of relevant
experts, with the objective of obtaining a fairly broad band of opinion.
e Scientif‌ic Committee, once assembled, is asked to present three to
six topics of interest it considers “to be particularly important for animal
welfare in the species being considered”.83 e relevant commodity group
will then make a similar list, and the two groups will come together and
“collectively identify a f‌inal list of priority welfare issues for the species”.84
e Scientif‌ic Committee then provides a detailed review of the
scientif‌ic literature on the issues selected, and compiles a report for the
81. NFACC, “Development Process”, supra note 44.
82. Review or initiation of the Codes is left entirely to the relevant industry,
and its desire to have a Code developed. e NFACC, “Development
Process”, supra note 44, suggests that “Codes are not developed without
the industry group stepping forward f‌irst”. ough it is not a concern
discussed below, it is strange that a body performing a government
function of setting standards is so willing to defer to individual industry
groups in this way. Some Codes are already well out of date. e NFACC,
Deer Code, supra note 71, for example, was created in 1996 under the old
Agri-Food Research Council, a government agency that no longer has
responsibility for such matters. ere do not appear to be any plans by the
deer ranching community to press for change at the moment.
83. NFACC, “Development Process”, supra note 44.
84. Ibid.
(2019) 5 CJCCL
Committee. Using this as a reference tool, the Committee will then begin
drafting the Code. All of the Committee’s meetings are held in camera.
Once a Code is completed, it is sent to the NFACC Executive, which
has a limited oversight role. According to the NFACC Guidelines, “if the
process was appropriately followed, NFACC will support the Code”.85
At this point, the Code moves to a public consultation process. e
rules surrounding public consultation are somewhat loose, but the draft
Code must be made available to the public in some fashion for at least
60 days. At the conclusion of this period, the Committee considers the
feedback received and makes adjustments to the Code, if required. Some
time after this process concludes, a f‌inal Code is issued.86
IV. Strengths of the Code Process
A. e End of the Legislative Vacuum: e Start of
Whatever else they may have accomplished, or failed to accomplish, the
initiation of the Code process ended Canada’s dormant period of law-
making in the area of farmed animal welfare. Advocates can debate the
utility of these Codes at length and the extent to which they have made
a meaningful change for farmed animals — as I will, below — but one
thing is clear: having no governing standards in place is worse, for at least
three reasons.
To begin with, in the absence of a strong government interest to
develop clear legal standards for the treatment of animals, the primary
alternative to Codes lies in hoping that benef‌icial standards will be
developed through the common law, by considering whether conduct
harmful to animals is ‘generally accepted’, ‘reasonable’, or ‘necessary’.
Unfortunately, Canada’s experience with leaving open-ended standards
to be advanced by prosecutors and interpreted by the judiciary has
85. Ibid.
86. “Your Guide to the Public Comment Period” (28 August 2018), online:
National Farm Animal Care Council
period> [NFACC, “Public Comment Period”].
Sankof‌f, Canada’s Experiment with Industry Self-Regulation in Agriculture
been fairly dismal. Where animal protection is concerned, Canadian
prosecutors have demonstrated little appetite for taking controversial or
‘close to the line’ cases forward.
is is not entirely surprising. After all, on the rare occasions when
Canadian judges have been given the chance to consider whether a
standardized farming practice meets the grade, they have shown a
consistent tendency to decide the question in favour of the defendant.87
e need to prove beyond a reasonable doubt that a particular distress-
causing practice was not generally accepted in the community, which
rests upon the prosecution, seems a bridge too far to cross in most cases.
Without clear standards one can point to as a means of showing that, in
fact, the particular practice does not meet with industry approval, it is
very dif‌f‌icult to secure a conviction.
Second, if the objective is to generate change over the long-term, a
f‌lawed reform process is likely better than no reform process at all. In an
earlier work,88 I suggested that Canada suf‌fered from a ‘discourse def‌icit’
arising out of the country’s failure to engage in a national discussion
about animal welfare. In comparison, I applauded the New Zealand
Code process for reform, notwithstanding its signif‌icant f‌laws, mainly
because I believed it encouraged meaningful public dialogue to be raised
about animal protection, suggesting that in Canada, by contrast:
[n]o issue seems capable of generating enough traction to provoke a sustained
discussion of legal standards. Moreover, questions involving agricultural
animals - are virtually never raised. In my view, this lack of discourse stems, at
least in part, from the current state of Canadian animal protection law.89
87. See e.g. Muhlbach, supra note 33; Doyon v Canada (AG), 2009 FCA 152
(transportation of pig with severe leg fractures not unreasonable; relying
upon evidence of producer with 29 years experience); R v Chilliwack Sales
Ltd, 2013 BCSC 1059 (transportation of three cows with severe injuries
not unreasonable; owner was “well qualif‌ied to decide whether a cow is f‌it
for an expected journey without experiencing undue suf‌fering” para 46).
88. Peter Sankof‌f, “e Animal Rights Debate and the Expansion of Public
Discourse: Is it Possible for the Law Protecting Animals to Simultaneously
Fail and Succeed?” (2012) 18:2 Animal Law 281[Sankof‌f, “e Animal
Rights Debate”]. is paper was published shortly before the NFACC
released its f‌irst revamped Codes for public consultation in late 2012.
89. Ibid at 297.
(2019) 5 CJCCL
For reasons I will explore below relating to the Code process, the
discourse on these issues remains less ef‌fective than it could be, but it
has undoubtedly improved since 2012. e Pig Code,90 f‌irst initiated
in 2010, was released for public consultation in 2013. It generated
over 4,700 submissions, representing 32,340 individual comments.91
Newspapers covered several parts of the Code process, weighing in with
editorials92 — mostly about sow stalls — and Canadian actor Ryan
Gosling even contributed to the debate through an opinion piece in the
Globe and Mail.93 is was unquestionably one of the most signif‌icant
national discussions about a single agricultural animal welfare reform in
the country’s history.
Debates of this sort are important, particularly because they help
to initiate a national dialogue on farm animal practices that is critically
necessary if the suf‌fering endured by these animals is ever going to change
in any sort of meaningful way. As I suggested in a 2012 article on the
importance of public discourse as a means of setting the groundwork for
legal change,94 regulatory mechanisms cannot be evaluated exclusively
by the outcomes they produce. Instead, as Jürgen Habermas and others
have suggested, legal mechanisms that allow for ‘deliberative democracy’
to take place help to ensure greater social legitimacy for any laws that are
90. NFACC, Pig Code, supra note 58.
91. National Farm Animal Care Council, News Release, “Overwhelming
Number of Responses Received to Draft Pig Code of Practice” (23 August
2013), online: National Farm Animal Care Council
92. See e.g. Laura Rance “Turning Point for Pig Producers: Must Adapt
to New Code of Care” (10 August 2013), online: Winnipeg Free
93. Ryan Gosling “A Tiny Cage is Not a Life” (11 July 2013), online: e
Globe and Mail
94. Sankof‌f,
“e Animal Rights Debate”, supra note 88.
Sankof‌f, Canada’s Experiment with Industry Self-Regulation in Agriculture
ultimately enacted.95 As Alice Woolley put it, “laws can be understood as
ref‌lective of [a democratic will] when those laws arise from a democratic
process of public reasoning—that is, from deliberation”. 96
ough it does not apply anything close to the purest form of
deliberative democracy, the NFACC Code process nonetheless encourages
a certain amount of public participation on farm animal issues, and the
ongoing review of Codes permits for consistent scrutiny and discussion
about how Canada’s farm animals are being treated. is is valuable in
and of itself, for as Alice Woolley suggests:
[T]heoretical models of deliberative democracy assert the necessity for, and
the importance of, determining the public will through a discussion in which
participants identify a consensus view on legitimate reasons and on the state
action that follows from those reasons. …[D]eliberation may be a source
of democratic legitimacy…But it is also, and perhaps primarily, the proper
democratic process because it will, if designed to encourage critical thinking,
reduce social pressure and enhance information sharing, and thus lead to better
As this excerpt suggests, public discourse is an essential aspect of
encouraging positive democratic change in the law, and equally important
in letting the law develop in a way that ref‌lects a deeper societal consensus.
In contrast to a static law that provides little more than that animals
should not be harmed ‘unnecessarily’, which creates little dialogue, the
ref‌inement of Code standards over time allows for an ongoing discourse
to evolve and be accepted as part of a wider social ethic through public
discussion and debate. If Canada is ever going to take steps to make
meaningful advances in farmed animal welfare, this discourse is essential,
and the more that our ‘law-making’ process encourages debate of this
kind, the better.
Finally, the consistent review of NFACC Codes has the added
95. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse
eory of Law and Democracy, translated by William Rehg (Boston: MIT
Press, 1998) at 296–7 (describing the importance behind the discourse
theory of ideal procedure for deliberation and decision making).
96. Alice Woolley, “Legitimating Public Policy” (2008) 58:2 University of
Toronto Law Journal 153 at 166.
97. Ibid at 167, 169.
(2019) 5 CJCCL
advantage of keeping animal protection for farm animals on the public
agenda in perpetuity, and the opportunity to challenge a given practice or
to end a particular type of suf‌fering is never limited to one special occasion
when legislators show a willingness to engage. In ef‌fect, the creation of a
permanent system of review means that the ability to defer these issues
to another day — a strategy common in many jurisdictions, and the
Canadian approach to this matter for decades — has been abandoned in
favor of a mandatory and consistent reform process.
B. Industry “Buy-in” to Certain Systemic Changes
In the ‘concerns’ section below, I will discuss certain problematic aspects
of a process that is driven and controlled by industry. Nonetheless, the
NFACC is clearly right about at least one aspect of an industry-led
process like this one: “any decisions made have the weight and support
of its membership as a whole”.98 By striving so strongly for a consensus-
driven model that brings together every producer and player with a stake
in the industry, it will be dif‌f‌icult — if not impossible — for dissenters to
persist with unfavourable practices once a Code rebukes them.
is is not always the case where Codes are ‘imposed’ from above,
no matter how much consultation with af‌fected industries is undertaken.
e notion of including industry in the regulatory development process
is part of a strategy of ‘responsive regulation’ with the objective of
investing industry with the incentive to comply. It was devised “in a bid
to transcend the inf‌lexible approach of adopting either ‘deterrence’ or
‘compliance’ as a stand-alone strategy [and] establish a synergy between
punishment and persuasion”.99 Unquestionably, consensus driven Codes
like the NFACC model are likely to be less ambitious and err on the
98. Gina Teel & Tracy Sakatch, “CCA in Action — Animal Care” Canadian
Cattleman’s Association Action News 5:4 (4 July 2011), online: CCA Action
News .
99. Jed Goodfellow, “Animal Welfare Law Enforcement: To Punish or
Persuade” in Peter Sankof‌f, Steven White & Celeste Black, eds, Animal
Law in Australasia: Continuing the Dialogue, 2d (Sydney: Federation Press,
2013) 183 at 195.
Sankof‌f, Canada’s Experiment with Industry Self-Regulation in Agriculture
side of caution, but what they achieve stands to be attained,100 as every
member has a stake in the outcome. It is no surprise that release of each
Code has come with support and usually applause from the stakeholders
most strongly af‌fected by it.101
C. Precision
A major strength of the Codes is that owing to a desire for the standards
to be “clearly articulated to ensure easy understanding by all users”,102
the NFACC has chosen to make them as precise as possible, and by and
large has eschewed ‘outcome’ based standards that allow for arguments
about interpretation on the enforcement end. It is easier to determine,
for example, whether “a farrowing crate…allow[s] the sow enough room
to move forward and backward, and to lie down unhindered by a raised
trough or rear gate”,103 than it is to decide whether the crate provides
“adequate space”.104
e clarity of the Codes has other advantages. For critics of the
status quo, precision is preferable to ambiguity — especially when it
comes time to attempt to convince the public of the need for further
100. Compliance will never be universal, of course, which is why proper
oversight is so critical. See Maria Weisgarber & Kendra Mangione,
“Egg Farm Decommissioned After Disturbing Video Prompts
Investigation” (12 July 2018), online: CTV Vancouver
investigation-1.4011480> (egg facilities not complying with Laying Hen
Code of Practice, supra note 30).
101. See e.g. Canadian Pork Council, Press Release, “Updated Pig Code of
Practice Announced” (6 March 2014), online (pdf): Canadian Pork
Code_Release_Final_March_6_2014.pdf> (the new Code is a source of
tremendous pride).
102. NFACC, “Development Process” supra note 44 at Appendix A.
103. NFACC, Pig Code, supra note 58.
104. is aim has not always been achieved, however. See e.g. NFACC, Farmed
Mink Code, supra note 63 (“sheds must be designed to allow adequate
space, light, and access for stockpeople to observe” at 8 [emphasis added]).
Mink must have access to suf‌f‌icient quantities of nutritional feed which
meet their physiological needs (at 20).
(2019) 5 CJCCL
change. While advocates working with Canadian law are well aware of
the shortcomings of the basic cruelty law, and the nuances of the term
‘unnecessary suf‌fering’, it is not always easy to explain these concerns
as part of a public campaign advocating the need for legislative reform.
e problem is that the wording of the law sounds reasonable, and it is
only through a detailed exploration of case law and failed prosecutions
that one discovers its f‌laws, and even in this context, many propositions
remain contentious. It is arguably much easier to explain why a farrowing
crate that barely permits enough room for a pig to move forward and
backward and space to lie down is a form of torture against animals,
especially when the Code permits this to occur for up to six weeks straight
without interruption. To put it another way, the Codes provide clear
reform targets and allow potential shortcomings to be identif‌ied with
ease.105 Clarity is a rare and welcome commodity in animal welfare law.
D. Elimination of the Worst Practices
As noted above in the discussion on process, the NFACC does not aim
to be revolutionary. Still, the Codes at least take some much needed f‌irst
steps towards bringing Canada closer to guidelines established in Europe,
Australia, and New Zealand, by phasing out some of the very worst of the
industrial agricultural practices that currently f‌lourish here, with some
hope of making real improvement in other areas as well.
e Pig Code of‌fers a good example. ere is nothing truly
revolutionary about it, comparatively speaking, but for Canada, the
changes were a needed improvement from the status quo. For the f‌irst
time, use of analgesics for the common practices of castration and tail
docking is mandatory.106 Furthermore, the Codes recognizes that pigs
are intelligent creatures in need of “multiple forms of enrichment…
through the enhancement of their physical and social environments”.107
Perhaps, most importantly, the use of sow stalls will be reduced, although
105. To see the advantages of this for the prospects of long-term reform, albeit
in the context of New Zealand’s more fulsome Code enactment process,
see Sankof‌f, “e Animal Rights Debate” supra note 88 at 308–13.
106. NFACC, Pig Code, supra note 58 at 33.
107. Ibid at 18.
Sankof‌f, Canada’s Experiment with Industry Self-Regulation in Agriculture
not eliminated. New housing facilities built since 2014 must use group
housing, as opposed to crates, as a primary form of conf‌inement, though
sows can still be kept in crates at the producer’s discretion for up to
f‌ive weeks — a lengthy period.108 From 2024, all piggeries will need to
comply with these requirements.
It is a long way from a comprehensive removal of crate housing, but
it is an improvement over what is currently in place, as today, most of
Canada’s sows stay in crates for virtually their entire lives. For this reason,
the Code received modest approval, albeit with calls for ‘more’, from even
some of the more vocal critics of the agricultural industry.109
V. Concerns with the Code Process
A. e Ambiguous Nature of the Codes
ough each of the other concerns discussed below warrants careful
consideration, one currently towers above the rest in terms of impact
and importance. Without question, a major disadvantage of setting up a
‘private’ legal process of this type or advantage, depending upon your
point of view110 is that notwithstanding all the time, ef‌fort, and money
108. Furthermore, the Pig Code permits the use of farrowing crates for six
weeks post-pregnancy. e f‌ive-week grace period is also troubling, for it
will be incredibly dif‌f‌icult to monitor in practice in order to see whether
producers are complying.
109. “More Humane Rules for Breeding Pigs are Welcome”, Editorial
(30 March 2014), online: e Star .com/opinion/
are_welcome_editorial.html> (“Sayara urston of Humane Society
International Canada says, ‘…it’s not an end point. It’s a f‌irst step.’”);
Sophie Gaillard, “A Glimmer of Hope for Canadian Pigs” (10 March
2014), online (blog): Animal Legal Defense Fund
110. is is undoubtedly a cynical viewpoint, but I would argue that there
is value to the farming industry to have Codes that ‘may’ or ‘may not’
be legal. is approach provides maximum utility to these industries. It
permits the argument that standards are set, but does not actually bind
individuals to the standards if they are breached.
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that has been poured into Code development, no one can say with any
certainty, for lack of a better phrase, ‘how legal’ the Codes actually are,
and what function they perform in the justice system.
Of the many wonderful Code phrases utilized in the NFACC lexicon,
the best undoubtedly relate to enforcement. One can scour the Codes
and the many publications scattered throughout the extensive NFACC
website without running across the word ‘prosecution’ once. What you
f‌ind instead are a number of vague references to what the Codes do, and
how they “may be enforceable under federal and provincial regulation”.111
No one seems eager to specify the legal function that Codes provide, a
fact exemplif‌ied well by a recent NFACC press release suggesting that:
Codes support responsible animal care practices and keep everyone involved
in farm animal care and handling on the same page. ey are our national
understanding of animal care requirements and recommended practices.112
As a practicing lawyer, it would undoubtedly be interesting to apply the
term ‘national understanding’ in court while attempting to use a Code as
a means of establishing that some form of animal cruelty or distress was
inf‌licted. Other NFACC publications refer to the Codes as ‘standards’,
‘guidelines’ and ‘requirements’.113
e ambiguous legal status of the Codes is complicated by Canada’s
federal framework. For better or worse, animal welfare matters are
now prosecuted separately in every Canadian jurisdiction and are
the responsibility of a host of dif‌ferent agencies, non-governmental
111. NFACC, “Development Process”, supra note 44 [emphasis added].
112. National Farm Animal Care Council, Press Release, “New Code of
Practice for the Care and Handling of Sheep released” (18 December
2013), online: National Farm Animal Care Council
releases?articleid=216> [emphasis added].
113. “Implementing Codes of Practice: Canada’s Framework for Developing
Animal Care Assessment Programs” (2013) at 3, online (pdf): National
Farm Animal Care Council
care_assessment_framework.pdf> [NFACC, “Implementing Codes of
Sankof‌f, Canada’s Experiment with Industry Self-Regulation in Agriculture
organizations, prosecutorial of‌f‌ices, and police forces.114 e laws
governing in each jurisdiction have distinctions, and each province uses
Codes (or does not use them) in dif‌ferent ways.
As discussed above, some jurisdictions have incorporated the Codes
explicitly, usually by recognizing that compliance with a Code constitutes
a defence to charges of putting an animal in distress or failing to comply
with certain duties of care.115 is legitimizes the Codes, but it does so
in a very unusual way, and, I would submit, an inef‌fective one. After all,
compliance with the Codes is not the only way of escaping liability for
putting an animal in distress, as the wording of the clause establishes
that liability for causing distress can be avoided either by complying with
a Code or by acting in accordance with generally accepted practices of
animal management.
Given the way the courts have treated the latter phrase thus far —
leaving a ‘residual’ defence available for ‘generally accepted practices’
that are not approved by a Code — has the potential to undermine the
utility of the Codes entirely. To be sure, the most logical def‌inition of
Saskatchewan’s provision, which accepts compliance with a Code and
adherence to generally accepted practices as alternative defences, would
avoid this approach by requiring adherence to the Codes in any situation
where a valid Code is in place, and restricting the ‘generally accepted
practices’ defence to residual scenarios that are not covered by any Code.
114. To learn more about Canada’s prosecutorial and investigative framework,
see Canadian Federation of Humane Societies, “Prosecuting Crimes
Against Animals” (2015), online (pdf):
115. Animal Protection Act 1999, supra note 53, s 2(3) [emphasis added]. See
similarly Animal Care Act, supra note 23, s 2(2). Newfoundland and
Labrador, Prince Edward Island and New Brunswick have taken this
approach as well.
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is interpretation is hardly guaranteed, however.116
In the jurisdictions that do not refer to the Codes, things are even
murkier. Canada’s four most populated provinces — and largest users
of farmed animals — all take the same approach to this issue. Rather
than refer to the Codes directly, they simply exempt any distress that was
caused “in accordance with reasonable and generally accepted practices
of agricultural animal care, management or husbandry”.117 ere seems
to be some sort of unexpressed expectation that clauses of this type will
take strong notice of the NFACC Codes, and it is certainly logical to
assume this will be the case.118 But whether the Code standards will end
up being exhaustive of what constitutes appropriate conduct remains
anyone’s guess at this stage.
How can this sort of ambiguity be good for farmed animals? ough
the NFACC states quite emphatically that Code “requirements represent
a consensus position that these measures, at a minimum, are to be
implemented by all persons responsible for farm care”, and that they
116. One thing working against this approach is the fact that most of these
statutes were recently enacted, and achieving the result I propose would
have been incredibly easy to do. Clause (b) should simply begin by
stating: “in any situation where the handling was not addressed by
a standard or code of conduct, criteria, practice or procedure that is
prescribed as acceptable”.
117. OSPCA Act, supra note 26. See similarly Animal Protection Act, RSA 2000,
c A-41, s 2(1)(2); Prevention of Cruelty to Animals Act, RSBC 1996, c
372, s 24.02(c); Animal Welfare and Safety Act, supra note 32, s 7. ere
are slight variations. British Columbia has expressly adopted one Code
— the Code for Dairy Cattle. See the Dairy Cattle Regulation, BC Reg
132/2015. Quebec’s Animal Welfare and Safety Act, CSQ, c B-3.1, s 7 only
refers to “generally recognized rule”.
118. A few lower court decisions have tentatively suggested this to be the
case. See R v Kowalik, 2010 SKPC 58; R v Tomalin, 2011 NBPC 29.
In contrast, see R v Van Dongen, 2004 BCPC 479 (Codes are voluntary
guidelines and impose no legal obligation on farmers in Canada to
comply with the recommended practices); R v Hurley, 2017 ONCJ 263
(industry standards may be proven to be the appropriate standard of care,
but they are never automatic).
Sankof‌f, Canada’s Experiment with Industry Self-Regulation in Agriculture
are “fundamental obligations”,119 this sounds more like an aspirational
statement than a f‌irm rule, in light of the way the laws themselves
are drafted. ere may well be strong industry pressure for individual
producers to comply, and individual agricultural organizations may be
able to apply commercial sanctions to those who do not, but this is not
the same as imposing a legal requirement for the purpose of protecting
animals from harm or distress.120
Of course, this raises a larger policy question. Let’s assume for the
moment that the distinction between specif‌ic mention of the Codes
in some provinces and the reference to ‘generally accepted practices
is unimportant, and that the Codes have a similar legal status in
all Canadian jurisdictions. Why are the Codes treated as providing
farmers with defences instead of operating as regulated standards, with
non-compliance operating as demonstrated evidence of a breach of a
provincial law?121 is is no trivial distinction. As it stands, an inspector
who f‌inds evidence of non-compliance with a relevant Code would not
automatically have grounds to lay charges. He or she would still need to
be able to prove that the animal was in some degree of ‘distress’.
is might not appear to be a signif‌icant problem, for proving that
distress occurred requires satisfaction of a lower threshold than establishing
that ‘unnecessary suf‌fering’ occurred. Still, it is not always easy to do or
even possible, and once again, the courts have made it challenging in this
area. e Muhlbach case discussed above is an excellent example of the
119. NFACC, “Development Process”, supra note 44 [emphasis added].
120. Commercial sanctions are useful, but they cannot substitute for legal
oversight. Amongst other things, they allow the private industry to
completely self-regulate, and ignore the public interest in ensuring that
animals are properly cared for.
121. New Zealand comes close to this position, providing that “evidence that a
relevant code of welfare was in existence at the time of the alleged of‌fence
and that a relevant minimum standard established by that code was not
complied with is rebuttable evidence that the person charged with the
of‌fence failed to comply with, or contravened, the provision of this Act to
which the of‌fence relates”, see Animal Welfare Act 1999, supra note 35, s
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distinction.122 In that case, one of the charges was based on the fact that
two cows had no access to water during the period of the inspector’s visit.
e Court dismissed the charge, holding that distress required proof of
dehydration, which had not been established on the facts. Were proof of
non-compliance with a Code enough however, the accused would have
been convicted upon proof that water was not available for the animals,
as there would be no need to prove ‘distress’ in these circumstances.123
Given that these Codes are industry approved and endorsed, it is not
clear why the agricultural community should not feel secure enough to
stand behind them. If the Codes are truly the “national understanding
of animal care requirements”124 in Canada, they should operate as
such. Breach of a Code should be enough to warrant conviction for a
provincial regulatory of‌fence, as is the case with non-compliance in other
regulated areas, where punishment follows proof of the wrong, regardless
of whether harm was caused.125 By all means, sentencing for an of‌fence of
this type should take into account the absence of distress, but given the
dif‌f‌iculties that exist in enforcing animal protection legislation, including
122. In contrast, see R v Dondale, 2017 SKPC 58 (failing to follow the code of
practice, in conjunction with other evidence, established that the animals
were in distress for the purposes of the Act).
123. NFACC, Beef Cattle Code, supra note 57 (Requirement 2.2 states that
operators must “ensure that cattle have access to palatable water of
adequate quality and quantity to fulf‌ill their physiological needs” at 13).
124. NFACC, “Codes of Practice”, supra note 78.
125. For those concerned that this is too harsh, keep in mind that Canada
always permits access to a due diligence defence, which would allow a
farmer to escape liability if he or she could show that they took reasonable
precautions to avoid committing the of‌fence: See Morris Manning &
Peter Sankof‌f, Manning, Mewett & Sankof‌f: Criminal Law, 5d (Markham:
Lexis Nexis, 2015) at 278–83. My point here is that there is no need to
add the additional element of proving distress where it can be established
that a Code standard was not followed.
Sankof‌f, Canada’s Experiment with Industry Self-Regulation in Agriculture
the dif‌f‌iculty of even getting access to farms in the f‌irst place,126 it is
undesirable to set up an oversight system that cannot impose sanctions
for non-compliance unless additional elements of proof are f‌irst met.
B. e Players at the Table: Making Value Decisions
e ambiguity of its output is not the only concern about Canada’s chosen
model for ‘regulating’ farmed animal welfare. Another questionable
aspect of the framework is how it grants the industries who are the
subjects of these standards an incredible level of control over the process.
e decision of governments, the traditional representative of the public
interest, to mostly opt-out of the process is troubling.127 e NFACC
Code process is a long way from the ‘co-regulated’ model favoured in
jurisdictions like Australia and New Zealand, in which “government and
126. National Farmed Animal Health and Welfare Council, “A National Farm
Animal Welfare System for Canada” (2012) at 30, online (pdf): National
Farm Animal Care Council
page_2012.pdf>; Terry Whiting, “Policing Farm Animal Welfare in
Federated Nations: e Problem of Dual Federalism in Canada and the
USA” (2013) 3:4 Animals 1086, online: National Center for Biotechnology
Information .
127. It is not entirely clear why government has chosen to play such a
limited role in governing this area, though it is quite possible that the
concept of ‘regulatory capture’, provides the best explanation. See Jason
MacLean, “Striking at the Root Problem of Canadian Environmental
Law: Identifying and Escaping Regulatory Capture” (2016) 29:1 Journal
of Environmental Law & Practice 111 (MacLean has examined a similar
decision by governments to abdicate in the environmental sphere and goes
so far as to conclude that “[s]ystemic corruption — regulatory capture [by
industry] and its corollary, irresponsible government…blocks principled
reforms and fuels unprincipled reforms in Canadian environmental
law — it is at the root of every identif‌iable systemic weakness infecting
Canadian environmental law today, both federally and provincially. We
all know this, more or less. But we tend to ignore it. Or, to be fair, we
tend to lament systemic corruption as a kind of analytical afterthought,
something that is regrettable but seemingly insoluble” at 113–4.
MacLean’s conclusions about industry’s impact on environmental law
seem fully transposable to concerns about animal protection).
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industry develo[p] cooperative arrangements where both play a formal
role in regulatory processes to ensure compliance”.128 e absence of
of‌f‌icial oversight is no small matter. It stands to reason that no government
representative — federal or provincial — is responsible for any aspect of
the Code-making process. Questions in Parliament about choices made
with respect to particular Codes can easily be def‌lected away, on the
grounds that the value judgments being made were simply not of the
government’s doing.
Instead of government control, the NFACC is run by an executive
committee, furthering the organization’s objective of creating a
“collaborative partnership of diverse stakeholders [to] facilitat[e] and
coordinat[e] a consistent approach to farm animal welfare in Canada”.129
at said, the NFACC’s view of relevant ‘stakeholders’ probably dif‌fers
somewhat from that of the hard-core animal advocate. e goal is not
a wide engagement with ordinary Canadians or people from across the
animal welfare spectrum,130 but rather, engagement with a diversity of
stakeholders within the industrial agricultural complex and the food supply
chain. is is not to say that welfare groups are excluded. Suf‌f‌ice it to
say, however, that they constitute a small part of the overall NFACC
Consider the NFACC executive, which has the following members:
Chair — this has exclusively been a member of one of the
larger agricultural industries. e current chair is from the
Saskatchewan Cattleman’s Association;
Two members of National Commodity Associations (e.g.
Chicken Farmers, Dairy Farmers, etc.);
One member from a National Meat/Poultry Processor
One member of National Retail, Restaurant and Food Service
128. Goodfellow, supra note 99 at 192.
129. NFACC, “About NFACC”, supra note 5.
130. e NFACC does not permit anyone to participate who takes the view
that the use of animals in agriculture is morally wrong. Organizations that
wish to be on NFACC Committees must agree as a precondition that the
use of animals for this purpose is legitimate and acceptable.
Sankof‌f, Canada’s Experiment with Industry Self-Regulation in Agriculture
One member from a National Veterinary Association;
One member of a National Animal Welfare Association;
One member of a Provincial Farm Animal Care Council;131
e federal government — ex of‌f‌icio (non-voting member); and
A researcher — ex of‌f‌icio.
Depending upon how one views members of the veterinary profession,132
that makes one voting member (or two) out of eight whose primary
focus is animal protection. In a 2005 article, I considered the New
Zealand Code-making process and expressed some skepticism about the
assortment of voices around the Code table.133 Let’s just say that New
Zealand’s Code committee provided a rainbow of diversity in comparison
to its Canadian counterpart.
e Executive Committee does not actually draft the Codes, but
it runs the organization, establishes strategies for the future, and sets
relevant policies to guide the drafting process. Moreover, NFACC
procedures make clear that the same sort of ‘balance’ should be applied
to committees tasked with writing the Codes themselves. Once again,
the search for consensus that is so essential to the endeavour appears
to involve a fairly limited inquiry amongst stakeholders from across the
production chain, along with a few outsiders. Committees are ideally
limited to f‌ifteen, and the NFACC recommends the following balance:
At least four producers from the af‌fected industry;
Transporter with expertise in the af‌fected industry;
National animal welfare associations;
131. To be clear, this is not a body whose primary concern is animal welfare.
It refers to the representative of a provincial farm animal association
that promotes trade in these products. See e.g. Farm & Food Care
Ontario (2018), online: Farm & Food Care>,
an association whose objective includes promoting the consumption of
animal products.
132. e veterinary bodies selected tend to have very close ties to industry, as
discussed below.
133. Sankof‌f, “Five Years”, supra note 36 at 20–21.
(2019) 5 CJCCL
Retail and food service organization;
Provincial animal protection enforcement authority; and
It is arguably a broader variety of viewpoints than one is likely to obtain
on the NFACC Executive, but again, the structure seems designed to
keep industry very f‌irmly in control, with a strong majority position at
all times. e 2013 Pig Code Committee of‌fers an instructive example.
ere were eighteen members on the Committee.135 Ten had direct
economic interests in the use of pigs, being members of the Canadian
Pork Council, a provincial board of a similar type, transport groups,
or processors. e other eight included four members of government,
including two enforcement of‌f‌icers, one agricultural engineer, a scientist,
a veterinarian, and one member of the Canadian Federation of Humane
e 2017 Layer Hen Committee was similarly constructed. A
committee of eighteen had f‌ive representatives from the Egg Farmers
of Canada, three members of the Canadian Poultry and Egg Processors
Council, one from Maple Lodge Farms, one from Pullet Growers of
Canada, and one from a chicken breeder. e lone veterinarian on the
Committee worked exclusively with egg farmers, and was committed to
“...cur[ing] the misinformation on egg farming”.136 In total, twelve of the
eighteen members on the Committee were people whose livelihood was
directly tied to the use of layer hens. Five members of the Committee
came from government agencies, the Retail Council of Canada and the
134. See NFACC, “Development Process”, supra note 44 (the problem of
Committee representation is not unique to Canada, though it is arguably
worse here given the lack of government oversight). See Arnja Dale &
Steven White, “Codifying Animal Welfare Standards: Foundations for
Better Animal Protection or Merely a Facade?” in Sankof‌f, White &
Black, supra note 99 at ch 7, 163–65.
135. One member of the Canadian Pork Council did not have voting rights,
136. See Mike the Chicken Vet, “About” (2018), online (blog): Wordpress
Sankof‌f, Canada’s Experiment with Industry Self-Regulation in Agriculture
scientif‌ic community.137 e f‌inal representative was appointed by the
Canadian Federation of Humane Societies.
is unbalanced membership is a matter of real concern. To begin
with, the composition of NFACC Committees is bound to have an
impact on the overall legitimacy of any output produced. After all:
[W]hen people perceive a governance process as fair they are more likely to
obey the law and support government policies (Tyler 2006)—even when the
outcomes are not in their interest (Miles 2014). Conversely, when people
perceive a governance process as clearly unfair, prior attitudes are more likely
to determine whether they support or oppose a decision (Doherty & Wolak
Not surprisingly, a key aspect in determining whether a particular process
was ‘fair’ involves the extent to which the collaborative decision-making
that took place allowed for a suf‌f‌icient degree of representation by af‌fected
stakeholders, and an equal chance for those involved to participate. As
Chrislip and Larson have suggested, “the f‌irst condition of successful
collaboration is that it must be broadly inclusive of all stakeholders who
are af‌fected by or care about the issue”.139 Moreover, it must “provid[e]
for equal and balanced opportunity for ef‌fective participation of all
137. Tina Widowski, a Professor at the University of Guelph, was the chair of
the Scientif‌ic Committee. She is a director of the Campbell Centre for the
Study of Animal Welfare at the University of Guelph and holds the Egg
Farmers of Canada Chair in Poultry Welfare Research.
138. Jim Sinner, Mark Newton & Ronlyn Duncan, “Representation and
Legitimacy in Collaborative Freshwater Planning: Stakeholder Perspectives
on a Canterbury Zone Committee” in Cawthron Institute, Report No
2787 (November 2015) at 2, online (pdf): Cawthron Institute
139. David D Chrislip & Carl E Larson, Collaborative Leadership: How
Citizens and Civic Leaders Can Make a Dif‌ference, 1d (San Francisco:
Jossey-Bass, 1994) at 24. It is worth noting that the NFACC refuses to
engage with all af‌fected stakeholders as a matter of policy. , see NFACC,
“About NFACC”, supra note 5, committee members must “accept the use
of farmed animals in agriculture”.
(2019) 5 CJCCL
interested/af‌fected stakeholders”.140 In the absence of these factors,
it is dif‌f‌icult to be convinced that any decisions reached possess a real
democratic legitimacy.141
But this is not simply about ensuring public legitimacy. e search
for the ‘correct’ answer of what constitutes a viable standard of animal
protection through consensus and compromise — the core of what the
NFACC does through the Code-making process — is undoubtedly
af‌fected by the way in which the drafting committees are composed.
After all, determining the appropriate level of animal protection that
should be af‌forded to a specif‌ic farm animal is not something that allows
for an indisputable answer. NFACC materials sometimes try to suggest
otherwise, indicating that the search for ‘balance’ is really the product
of “a credible, science based-approach”,142 that focuses on treating
animals humanely by “suppor[ting] approaches that are scientif‌ically
informed”.143 But anyone involved in animal welfare knows that matters
are not this simple. In attempting to draw lines with respect to particular
practices or procedures, there is often a clash of interests, a point at which
choices need to be made about whether the animals’ needs outweigh the
need to use or treat the animals in a particular way. ough many of the
NFACC’s materials try to gloss this over — preferring to highlight the
fact that its Codes are created by “taking into account the best science
available for each species, compiled through an independent peer-
reviewed process, along with stakeholder input”144 — if one looks hard
enough, it is possible to f‌ind clear recognition of the value-balancing
that is, ultimately, at the heart of the process. A press release highlighting
140. Nick Cradock-Henry, “Evaluating a Collaborative Process” in Landcare
Research Manaaki Whenua Policy Brief No 2 (October 2013), online
(pdf): Landcare Research Manaaki Whenua
141. See Sinner, Newton & Duncan, supra note 138 (a study that considered
the public’s view of a particular collaborative decision-making exercise,
concluding that committee composition was a key factor in reducing
public comfort with the decisions reached).
142. NFACC, “About NFACC” supra note 5.
143. Ibid.
144. NFACC, “Development Process”, supra note 44.
Sankof‌f, Canada’s Experiment with Industry Self-Regulation in Agriculture
results from the Scientif‌ic Committee tasked with examining the Poultry
Code, which, not surprisingly, reached some troubling conclusions about
the way many of Canada’s chickens are kept, is revealing:
e reports focus on research conclusions; they do not make recommendations
because science tells us what “is” but does not tell us what “ought to be.” Value-
based decisions reside with the Code Development Committees, whose multi-
stakeholder composition allows for broad discussions of what is possible, when
it is possible and how it is possible.145
e statement is both transparent and accurate. It also shows why some
observers are so apprehensive about the fact that these value-decisions
are being made by a group overwhelmingly dominated by people with a
distinct f‌inancial interest in the outcome. To be sure, industry should have
a place at the table. Its concerns are important, and the goal of ensuring
‘buy-in’ is admirable. Nonetheless, NFACC Codes will continue to lack
real legitimacy until the organization widens the scope of its inquiries
and is willing to loosen the grip on the Code writing process.
C. Public Input: Democratic Legitimacy
Since the NFACC is ef‌fectively a private entity that has no law-
making authority, it technically owes no obligation to the wider public.
Nonetheless, the NFACC is very interested in obtaining public input upon
its work, viewing its interaction with the public as a “vital component”
of the Code drafting process.146 e public is engaged twice, f‌irst when
work on a new Code begins through an announcement process, which
alerts the public that a Code is being revised or initiated.147 Later, once
a draft Code is completed, there is a formal public submission period of
60 days, when anyone is permitted to submit comments regarding any
145. National Farm Animal Care Council, Press Release, “Poultry Scientif‌ic
Committee Reports Released” (4 June 2014). See also NFACC,
“Development Process”, ibid, which notes that its way of drafting Codes
“promises to bring real progress on responsible farm animal care, while
helping to ensure animal agriculture is viable in a climate of increasing
market demands”.
146. NFACC, “Public Comment Period”, supra note 86.
147. Ibid (this includes a “multi-component communication ef‌fort to support
awareness of the Public Comment Period and encourage participation”).
(2019) 5 CJCCL
aspect of the Code.148
It is somewhat dif‌f‌icult to assess the validity and ef‌fectiveness of the
public comment process when the entire point of having this type of
input is so nebulous. e NFACC’s explanation is that feedback of this
sort “plays a vital role in providing a check and balance to the Code
development process and in determining the direction set in the f‌inal
document”.149 e organization reiterates that comments it receives have
a real impact on the process:
[Do the public comments matter?] e answer is an emphatic “Yes”.
No-one knows this better than the individuals who have served as Code
Secretaries on each of the Code Development Committees that have been
formed to carry out the development of the updated Codes of Practice.
It is the Code Secretaries who are charged with receiving all of the feedback
from the Public Comment Period and organizing and providing this to
the Committee members they facilitate. Here is a small sampling of their
comments on this process:
“All of the comments we received were handled very carefully to make sure
they were considered as part of the process. In the case of a Code with lots
of feedback, such as the Pig Code, this involved a lot of painstaking work to
organize, including categorizing and sub-categorizing the comments so they
could be accessed and reviewed by the committee as ef‌f‌iciently as possible.
Our commitment was to make sure all of the comments were considered as
part of the process and I can unequivocally say that is what happened.” – Betsy
Sharples, [P]ig Code Secretary.150
Comments of this sort are dif‌f‌icult to unpack. At a basic level, the primary
point being made is indisputable, as there is little reason to doubt that
NFACC Committee members review the public comments provided and
treat them seriously. Certain comments may indeed have an impact, in
terms of providing useful information or insight to the Committee. But
it is dif‌f‌icult to believe that relying on the public to ‘improve’ the Codes
is the main objective of having the public comment process (“PCP”). In
148. ough it is not a major point, the 60-day period seems too short given
the dense and somewhat controversial nature of the material that the
Committee will have spent as much as two years pouring over.
149. NFACC, “Public Comment Period”, supra note 86.
150. Ibid.
Sankof‌f, Canada’s Experiment with Industry Self-Regulation in Agriculture
fact, other statements from the NFACC suggest a dif‌ferent purpose: that
a process of this sort helps provide a degree of public legitimacy to the
Codes and the Code development process. In a 2017 review designed to
analyze the ef‌fectiveness of the NFACC PCP, Jef‌frey Spooner commented
that “[t]he main purpose of the review was to address…questions…about
the transparency, and hence, legitimacy of the PCP process as it relates to
public input”.151 Spooner’s conclusion was that “[the] evidence indicates
a high degree of integrity of the people and the process responsible for the
management and administration of public feedback”,152 and that “there is
reason to conclude that NFACC’s PCP has been consistently managed in
a highly impartial, thorough, and democratic manner”.153
is conclusion is unlikely to convince everyone. Leaving aside the
study’s intrinsic limitations,154 there are reasons to be skeptical about the
public comment process and the extent to which it confers democratic
legitimacy on the Codes themselves. To begin with, there is no specif‌ic
requirement that Committees use or even address the feedback that
is provided. All that the studies show is that the commentary is to be
‘considered’. e comments are not public, as they would be if made, for
example, to a parliamentary committee, and the NFACC does not release
the commentary to public scrutiny, discuss why particular requests were
accepted or denied, or even provide a summary of the commentary’s
overall gist and tone. e NFACC is very fond of speaking about the
importance of public commentary on its website and in press releases,
151. Jef‌frey Spooner, “National Farm Animal Care Council Public Comment
Period Review Final Report” (December 2017) at 1, online (pdf):
National Farm Animal Care Council
152. Ibid at 3.
153. Ibid at 4.
154. Ibid (Spooner’s conclusions do not really analyze the structure of the
process and compare it to any other forms of democratic engagement.
Instead, the sources for his very short report were restricted to a review of
NFACC material and interviews with Code Managers. Spooner was not
exactly an independent expert either. He has a long history of working
with NFACC, and actually acted as a Code Manager for the review of the
Bison Code).
(2019) 5 CJCCL
perhaps as a way of justifying the ‘inclusive’ nature of the process, but no
mention of this feedback seems to f‌ind its way into the Codes themselves.
is is not to suggest that the feedback is ignored, and Committees
undoubtedly discuss it during the deliberative process, but in the absence
of any directives regarding its use, it is almost impossible to guess whether
it plays any signif‌icant role in the decision-making process, beyond
providing a veneer of public legitimacy.
In a detailed study of the Australian Code drafting process, Bethany
Hender, an LL.M. candidate at the University of Sydney, expressed
numerous concerns about the public consultation process in place there,
suggesting that it failed to provide suf‌f‌icient opportunities for democratic
engagement.155 Her work identif‌ied ten key features for ef‌fective public
consultation drawn from the relevant academic literature, and considered
the extent to which the Australian process measured up. e work is far
too detailed to perform a similar analysis here, but it is worth noting
that many of the criticisms raised in Hender’s work apply with equal or
greater force to the NFACC public commentary process.
Amongst other things, Hender was concerned that the scope and
potential impact of Australian public consultation was not adequately
explained, noting that “the facilitators must be honest about how the
public’s input will be used, and how it may inf‌luence the resulting
regulation, if at all”.156 e NFACC guide on public commentary is
anything but clear on this point. Is it trying to obtain public opinion? Is
it looking for matters that might have been missed? e expectations are
unclear and explained in a very broad and vague manner.
Hender’s research indicated that other factors were also essential to
ensuring a democratically legitimate exercise. Amongst these was the
fact that public consultations should be run by neutral and independent
facilitators who have no vested interest in the f‌inal outcome, and should
occur early in the process, noting that “if consultation occurs too late ...
155. Bethany Hender, e Treatment of Farm Animals in Australia: Are Legal
Standards Set in Accordance with Democratic Principles? (Masters of Laws
esis, University of Sydney, 2015).
156. Ibid at 109.
Sankof‌f, Canada’s Experiment with Industry Self-Regulation in Agriculture
the outcomes are often too narrowly def‌ined or predetermined”.157
Again, it is simply not possible to conduct the same sort of fulsome
analysis that Hender performed in Australia, though this sort of analysis
should be undertaken eventually. Suf‌f‌ice it to say that the NFACC’s
internally run comment period, which occurs very late in the process,
does not seem to satisfy the majority of the requirements Hender
identif‌ied as being essential to a legitimate democratic process of public
input. In her study, she concluded that the Australian process, which
was partly run by government, and far more robust than the NFACC
equivalent, nonetheless failed eight of the ten criteria for ef‌fective public
D. e Legal Branding Exercise: Controlling the
If animal welfare reform is truly a matter of creating societal pressure
and helping to develop a new ethical imperative,159 then establishing
a conversation about animal use is an important part of that process.
e NFACC appears to be well aware of the importance of controlling
this conversation. e pages of its well-crafted documents are replete
with a desire to “get the message of good welfare across”, to make use of
“opportunities”, and to help “engag[e] with people outside of agriculture
and [tell] our story”.160
Ultimately, though the NFACC is not a government body, it takes
great pains to look and sound ‘of‌f‌icial’, like a body that is akin to, or
operates with the approval of, government, which, in a sense, it does. Its
publications are government f‌inanced and designed to allow the af‌fected
agricultural industries to put their message forward in a very positive way.
Every aspect of the process talks with positivity about ‘collaboration’,
‘engagement’, and ‘progress’. In contrast, words like ‘non-compliance’,
157. Ibid at 152.
158. Ibid at 175.
159. Jerry Anderson, “Protection for the Powerless: Political Economy History
Lessons for the Animal Welfare Movement” (2011) 4:1 Stanford Journal
of Animal Law & Policy 1 at 1.
160. NFACC, “2014 Final Report”, supra note 45 at 3.
(2019) 5 CJCCL
‘prosecution’, and ‘lawmaking’ are stridently avoided.161 Everything is
about gradual development, meeting consumer expectations, and making
animal lives better.
On a certain level, it is hard not to think that the NFACC endeavour
is as much about who gets to tell the story as it is about the story that is
being told. To be clear, this is not to say there are not some good things
happening here, or that animal welfare is not a priority; but, it does
mean that sifting through the animal welfare narrative has in many ways
become a more dif‌f‌icult endeavour than before. e industry has learned
that engaging and narrating the claims of animal welfare is easier and
more ef‌fective than rejecting these claims altogether, or f‌ighting them
tooth and nail.
VI. Conc lusion
e Canadian experience with industry leading the way in def‌ining the
country’s animal welfare standards is now well into its second decade,
and there is nothing on the horizon to suggest that a replacement model
is in the cards. As noted above, there are merits to the NFACC Code
process. Engagement with industry brings certain advantages that cannot
be achieved through a process of imposing standards from above, even if
that were somehow regarded as a politically viable option. Nonetheless,
the Canadian model has plenty of warning signs as well. For engagement
to be ef‌fective for animals in any real way it must come with some degree
of oversight and control. Experience in Canada and abroad has shown
161. To keep this paper to a manageable size, I have avoided providing a
detailed analysis of NFACC’s next endeavour: setting up a universal
assessment framework that will minimize the traditional role of
investigation and enforcement by government authorities. To ensure
compliance with Codes, NFACC proposes a wide-scale ‘verif‌ication
framework’, with internal assessment designed to proactively address
animal welfare concerns and “provide assurances to buyers and consumers
that animal care standards are being met”. See NFACC, “Implementing
Codes of Practice”, supra note 113. is is a matter of some concern.
Studies of similar self-regulating models in other jurisdictions have raised
alarm, especially in the absence of government oversight, as is the case
here. See Goodfellow, supra note 99; MacLean, supra note 127.
Sankof‌f, Canada’s Experiment with Industry Self-Regulation in Agriculture
that simply trusting industry to ‘do the right thing’ is not an ef‌fective
strategy where animals are concerned,162 and raises problems from the
regulatory process right through to enforcement. Hopefully, over time,
the Canadian code making process will be regarded not as an end, but
as a mechanism that also needs to evolve, in order to ensure that its core
function — protecting the needs of the most vulnerable creatures in
society — has a real chance of being fulf‌illed.
162. For an American example, see David J Wolfson & Mariann Sullivan,
“Foxes in the Hen House: Animals, Agribusiness, and the Law: A Modern
American Fable” in Cass R Sunstein & Martha Nussbaum, eds, Animal
Rights: Current Debates and New Directions (New York: Oxford University
Press, 2004) 191 at 205.

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