Don't think about elephants: Reece v. City of Edmonton.

• Author: Sykes, Katie
• Position: Abuse of process, standing - Canada, Alberta - University of New Brunswick Law Journal Forum: Access to Justice

--Okay, here's me planting an idea in your head. I say to you, "Don't think about elephants." What are you thinking about?

--Elephants. (2)

INTRODUCTION

Lucy is a 36-year-old female Asian elephant who lives at the Edmonton Valley Zoo, (3) owned by the City of Edmonton. Once, when she was a baby, she was free. She was born in Sri Lanka and captured there in 1975 as an orphan less than a year old. (4) She was acquired by the Edmonton Valley Zoo in 1977, and she has been confined there ever since. She is the only elephant in the zoo, and she is the northernmost elephant housed alone in North America. (5)

Concerned citizens, animal organizations and public figures have been advocating for years for Lucy to be moved from the zoo to an elephant sanctuary, where she could live with more space, in a warmer climate, and in the company of other elephants. (6) Advocates for the move argue that Lucy suffers from debilitating physical and emotional deficits caused by the basic unsuitability of life in a Canadian zoo for a very large, naturally far-ranging, and highly social animal. Her problems include respiratory disease, chronic foot problems, obesity from lack of exercise, and social isolation. (7) The zoo's position is that Lucy is well cared for and that moving her would be dangerous because of her respiratory condition. (8)

In 2010 a local animal activist, Tove Reece, together with Zoocheck and People for the Ethical Treatment of Animals, turned to the courts to try to bring about a change in Lucy's situation. Reece filed an application with the Court of Queen's Bench seeking a declaration that the City was in violation of section 2(1) of the Animal Protection Act, which prohibits causing or permitting an animal to be in distress. (9)

Reece's originating notice was struck out as an abuse of process and on the basis that she and the other claimants lacked standing. (10) On appeal to the Alberta Court of Appeal, this decision was upheld. The determinative issue at both the lower court and the Court of Appeal was abuse of process: as the chambers judge wrote, the proceedings were barred by the rule that "no private individual can bring an action to enforce the criminal law." (11) Adopting this reasoning, Slatter J.A., writing for the majority, held that the proceeding fell into a recognized category of abuse of process, "where proceedings are used to enforce or engage punitive penal statutes." (12) The question of standing was treated as subsidiary to this issue.

The Supreme Court of Canada dismissed Reece's application for leave to appeal.

Thinking and Not Thinking About Elephants

The case raised questions about how procedural doctrines like abuse of process and standing limit, and are limited by, the principle of access to justice. These questions are of special importance in cases where unorthodox legal theories are advanced--and where, as in this case, justice is sought on behalf of one of a class of beings against whom the courthouse door has traditionally been barred.

The Reece decision is noteworthy for a lengthy (almost five times as long as the majority reasons) and wide-ranging dissent by Fraser C.J.A. The dissent engages in remarkable depth with questions including the relationship between human beings and animals, the debate over the existence of "animal rights," and the nature and effectiveness of legal provisions for the protection of animals. These matters are gradually gaining more prominence in both scholarly and public debate, but to see them addressed at all in an appellate court decision is surprising, and that they are given such thorough and sincere consideration is little short of astonishing. The only rival worldwide to Fraser C.J.A.'s dissent for engaging at length with the debate and scholarship around animal rights is the decision of the Supreme Court of Israel in its 2003 judgment in Noach v The Attorney General. (13)

The disagreement between the Reece judgments boils down to whether there is any place for the consideration of such matters in this case, or (implicitly) in the legal arena at all. For Fraser C.J.A., the case is about the way an elephant is allegedly being treated. For the majority, it requires nothing more complicated than the near-mechanical application of a categorical rule of civil procedure. According to the majority, neither animals generally nor this elephant particularly is relevant to this exercise; the appeal "does not deal with animal rights or the propriety of Lucy's care." (14) In short, the majority reasons manifest a sustained and strenuous--not to mention unprecedentedly successful--effort not to think about elephants.

Reasons for Judgment (Slatter J.A.)

Slatter J.A. describes the case in his opening paragraph as being "about the proper role of the courts in supervising day-to-day governmental operations." (15) The set-up is reminiscent of the classic judgments of Lord Denning; as soon as the matter has been crystallized in this way it is easy to predict what the outcome will be. (16)

As it turns out, however, the majority judgment does not focus primarily on the role of the courts in overseeing the conduct of government officials. The crux of the reasoning is that the proceedings are an abuse of process because they involve an attempt by a private litigant in a civil proceeding to give effect to a penal provision. The cases cited by Slatter J.A. in which courts have refused relief of this nature all involve defendants who are private entities rather than public officials or bodies, (17) while in Reece, by contrast, it is the City of Edmonton, a governmental body, which is alleged to be violating Alberta laws enacted to protect the welfare of animals. A principle that the dissent highlights as critical--the ability of citizens to seek judicial review of unlawful government action--recedes from view in Slatter J.A.'s reasons, based as they are on a rationale mainly drawn from case law where judicial evaluation of the government's compliance with the law is not at issue.

1. Civil Proceedings to Enforce Criminal Law

   The majority's central objection to the appellants' action is not so much that it would subject government functions to judicial scrutiny as that it seeks to usurp the government's responsibility to enforce Alberta's animal protection laws. The declaration sought by the appellants would undermine "the jurisdiction of the criminal courts (18) and "the authority of the Attorney General in the enforcement of the law." (19)

   Abuse of process is a concept perhaps most familiar in connection with attempts to re-litigate already settled issues. But this is merely a subcategory under an umbrella doctrine barring any proceeding that amounts to a misuse of the judicial system, or that "in some other way bring[s] the administration of justice into disrepute." (20) Slatter J.A. emphasizes that the residual power to strike pleadings for abuse of process is flexible and cannot be circumscribed by the particular categories of precedent like re-litigation of issues; "there is no universal test or statement of law that encompasses all of the examples" (21) and "it is ... not appropriate to take any judicial statement of the ambit of the doctrine of abuse of process, and apply it mechanically to different factual settings and issues." (22)

   The use of civil proceedings to enforce penal statutes is identified as a recognized category of abuse of process. (23) Slatter J.A. holds that it is improper for a litigant to attempt such proceedings unless he or she has some private interest in addition to the general public interest in enforcement of the penal law. (24) Foremost among the authorities he cites for this proposition is the English case Gouriet v Union of Postal Workers. (25) Gouriet, while it did not (like Reece) involve an attack on allegedly unlawful government conduct, addressed another issue that is also central to Reece: the scope of the discretion of government officials in making decisions about law enforcement.

2. Abuse of Process, Gouriet, and Standing

   Gouriet is a tale of vintage 1970s politics (and also of vintage communications technology). The case arose out of an action by the UK postal workers' union in solidarity with the struggle against apartheid in South Africa. In 1977 the union announced that for one week its members would refuse to handle any mail to or from South Africa. One Major John Prendergast Gouriet, founder of a conservative group called the National Association for Freedom, (26) applied to the Attorney General for consent to seek an injunction against the union's boycott by means of a relator action, through which the Attorney General could assert a public right in the civil courts at the proposal of a private citizen. (27) The Attorney General, a member of the Labour government in power at the time, refused consent to Gouriet's action; it had been "hinted," as Lord Diplock observed, that "there could be no reasons that were not partizan for his refusal to authorise the bringing of a relator action." (28) Gouriet then sought declarations that in refusing to pursue the relator proceedings the Attorney General had exercised his discretion wrongfully, (29) and that Gouriet was entitled to proceed against the union. (30)

   The House of Lords held that Gouriet's pleadings should be struck because "only the Attorney-General can sue on behalf of the public for the purpose of preventing public wrongs and ... a private individual cannot do so on behalf of the public" unless he personally would sustain an actionable injury as a result of the public wrong. (31) The post office, its employees and the union all enjoyed broad statutory immunity from tort proceedings, so Gouriet could not have asserted that he had a private right to uninterrupted service that would be violated by the boycott. (32)

   The term "abuse of process" is not actually used in Gouriet. The bar to Gouriet's cause of action is for the most part characterized as a lack of...