"Clearly a Subjective Determination": Interpretations of "Undue Suffering" at the Canada Agricultural Review Tribunal (2000-2019).

• Author: Sniderman, Andrew Stobo

CONTENTS Introduction 439 I. 2020 Changes and Other Reasons to Care About the CART 440 II. Overview of Data and Regulations 442 III. FCA Decisions: Porcherie des Cèdres, Samson & Doyon 446 IV. Identifying Undue Suffering 451 V. Three Implications 457 VI. Looking Forward 462 Conclusion 465 INTRODUCTION

Animal welfare laws, like the laws of war, take for granted that the killing will continue--and so, while we're at it, we should take measures to reduce suffering. (1) But when it comes to farmed animals, (2) how much suffering does our legal system actually tolerate? Canada is not known for exemplary harm reduction during meat production. "To put the matter as charitably as possible," writes Peter Sankoff, "Canada has never been considered a world leader where animal protection law is concerned, especially insofar as farm animals are concerned." (3) Lesli Bisgould is rather less charitable: "[f]or a country that prides itself on its peaceful ways, Canadians cause a lot of animals a lot of pain and suffering." (4)

This paper focuses on Canada's federal Health of Animals Regulations, which purport to provide a measure of protection to farmed animals, notably during their transit to slaughterhouses. (5) More specifically, this paper interrogates how the concept of undue suffering was interpreted by the Canada Agricultural Review Tribunal (CART) and Federal Court of Appeal (FCA) between 2000 and 2019. During this period, a total of 159 CART decisions applied the undue suffering standard with respect to provisions of the federal Health of Animals Regulations, guided in part by three significant FCA decisions. (6) These cases allow us to conduct a longitudinal study of the standard of "undue suffering," to see how it is interpreted and evolves over time. A core implication is that some degree of suffering was deemed reasonable, or "due," although the contours of this permissible suffering remained ambiguous.

This paper seeks to make three main contributions. First, it provides the first sustained analysis of the jurisprudence of the CART, an administrative tribunal that has received scant scrutiny, scholarly or otherwise. (7) Second, this article offers a case study of how a vague standard is interpreted and enforced by a particular administrative agency and a reviewing tribunal, with possible lessons for administrative law as a whole. I argue that 20 years of CART cases demonstrate the shortcomings of regulations that define acceptable outcomes in terms of a standard as vague as undue suffering. Finally, this study reveals little discernible progress, from an animal welfare point of view, in the way the standard of "undue suffering" was interpreted and enforced over the course of two decades.

1. 2020 CHANGES AND OTHER REASONS TO CARE ABOUT THE CART

   CART decisions about animal suffering warrant our careful scrutiny for at least three reasons. First, the decisions can help us assess the significance of recent amendments to the Health of Animals Regulations. In 2020, the regulations underwent revisions to "better reflect current animal welfare science" and "societal expectations," according to the federal government. (8) In particular, the phrase "undue suffering" has been largely excised. Whereas before it was only impermissible to cause suffering to an animal if it was undue, government analysis now boldly claims that proper transportation of animals "should not lead to any degree of suffering." (9) On their face, the 2020 changes reflect important advancements for animal welfare. To better understand and evaluate their significance, however, it helps to explore the prior approach to animal suffering, as evidenced by CART decisions.

   Second, the CART is one of the few public arenas where animal suffering is taken seriously. (10) The Tribunal has had to determine, case by case, the contours of what is deemed permissible with respect to the treatment of animals. In so doing, the CART guides the enforcement of legal duties towards farmed animals. With its reasoned decisions, the Tribunal makes explicit and specific that which regulations often state vaguely and generally. What constitutes undue suffering? How can it be identified? These are hard questions that the CART has done its best to answer.

   Third and finally, beyond questions about what and how the CART decides, the Tribunal's judgments document a veritable litany of horrors. (11) To read CART decisions is to peer at the underbelly of our meat supply chains. Unresponsive heifers are jabbed in the face with electric prods to get them to unload more speedily. (12) Three thousand chickens stuffed into crates perish in transit to the slaughterhouse. (13) Hogs suffocate during a three-hour journey in an overcrowded trailer. (14) Sheep freeze to death in sub-zero temperatures during a 46-hour journey in the back of a truck, without food or water. (15) A hog strains on the tips of its hooves to reduce the extent to which its massive hernia drags painfully on the ground--still, the animal is deemed fit for transit. (16) And so on. Though such stories typically result in legal liability for those responsible, CART decisions provide more than enough ghastly details to shock vegetarians and meat consumers alike. Generations hence, one suspects that readers will look back and wonder how such negligence and cruelty was penalized so lightly. (17) Moreover, in assessing that which is "undue," the Tribunal offers revealing glimpses into what actors in the supply chain consider "normal," as we shall see further below.

2. OVERVIEW OF DATA AND REGULATIONS

   This study analyzes a total of 159 CART decisions issued between 2000 and 2019, all of which invoke the concept "undue suffering." (18) Of these, 110 resulted in a finding of liability and imposition of a fine, and 49 did not. The cases concern hogs, sheep, chickens, horses, and cows, including various kinds thereof--spent hens, (19) broiler birds, (20) cornish hens, (21) cockerel chickens, (22) bovine calves, (23) veal calves, (24) heifers, (25) sows, (26) dairy cows, (27) a Holstein cow, (28) and a Charolais bull (29)--all on their way to becoming meat products. Each case is the result of "a system that permits the issuing of tickets for causing animal suffering on the last ride," as Vaughan Black puts it. (30)

   Why focus on decisions between 2000 and 2019? Though the Health of Animals Regulations have existed since 1977, and the CART has existed since 1983, the system of administrative penalties that undergirds these cases only came into force in 2000. The end date of 2019 reflects the fact that significant revisions were made in 2020 to the provisions that deal with animal suffering. During the two decades between 2000 and 2019, the relevant statutory language dealing with animal suffering was remarkably constant, although interpretations evolved.

   The Health of Animals Regulations is one of 11 sets of federal regulations pursuant to the federal Health of Animals Act. These regulations are primarily directed at the export, import, and transport of farmed animals, and compliance is overseen by the Canadian Food Inspection Agency. (31) Prior to 2000, the regulations were enforced by criminal prosecution, but as of May 2000, monetary fines have been administered as part of an administrative penalty system where liability is determined based on a balance of probabilities.

   The 159 cases concern nine kinds of violations, all of which invoke the "undue suffering" of animals. These provisions of the Health of Animals Regulations are worth citing in full (as they read prior to the 2020 revisions).

   Paragraph 138(2)(a) related to suffering during transport:

   138(2)...no person shall load or cause to be loaded on any railway car, motor vehicle, aircraft or vessel and no one shall transport or cause to be transported an animal (a) that by reason of infirmity, illness, injury, fatigue or any other cause cannot be transported without undue suffering during the expected journey. Subsection 139(2) related to the loading and unloading of animals:

   139 (2) No person shall load or unload, or cause to be loaded or unloaded, an animal in a way likely to cause injury or undue suffering to it. Subsections 140(1) and 140(2) related to overcrowding during loading and transport:

   140 (1) No person shall load or cause to be loaded any animal in any railway car, motor vehicle, aircraft, vessel, crate or container if, by so loading, that railway car, motor vehicle, aircraft, vessel, crate or container is crowded to such an extent as to be likely to cause injury or undue suffering to any animal therein. (2) No person shall transport or cause to be transported any animal in any railway car, motor vehicle, aircraft, vessel, crate or container that is crowded to such an extent as to be likely to cause injury or undue suffering to any animal therein. Finally, paragraphs 143(1)(a)-(e) concerned suffering during transport due to inadequate or faulty construction, exposure to weather, or inadequate ventilation:

   143 (1) No person shall transport or cause to be transported any animal in a railway car, motor vehicle, aircraft, vessel, crate or container if injury or undue suffering is likely to be caused to the animal by reason of (a) inadequate construction of the railway car, motor vehicle, aircraft, vessel, container or any part thereof; (b) insecure fittings, the presence of bolt-heads, angles or other projections; (c) the fittings or other parts of the railway car, motor vehicle, aircraft, vessel or container being inadequately padded, fenced off or otherwise obstructed; (d) undue exposure to the weather; (e) inadequate ventilation. (32) The presence of the word "undue" before "suffering" is the common denominator of this collection of provisions. On its face, this wording implies that mere suffering is not sufficient to attract legal liability. As Elaine Hughes and Christiane Meyer write, this "reflects the utilitarian calculus that some suffering is...