A Monkey in the Middle: Reflections on Darwin the Macaque and the (R)evolution of Wild Animals in Canadian Common Law
| Author | Mary J. Shariff |
| Pages | 83-104 |
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A Monkey in the Middle: Reflections on
Darwin the Macaque and the (R)evolution of
Wild Animals in Canadian Common Law
Mary J Shari*
A. INTRODUCTION
In December , a Japanese macaque was observed wandering around
a Toronto IKEA parking lot sporting a double-breasted shearling coat and
diaper. Darwin, also known as the IKEA monkey, became an instant media
sensation, his story and image making headlines around the world, with
people wanting to know where he came from, who owned him, and even
whether they too could have a monkey.
The purpose of this chapter is to explore how Canadian common law
currently constructs the concept of “wild” animal in Canada, particularly
from the viewpoint of the exotic companion animal. Section B begins with
the tale of Darwin and a review of Nakhuda v Story Book Farm Primate Sanc-
tuary — the case that arose aer he was apprehended by Toronto Animal
Services (TAS) and given to a primate sanctuary. Nakhuda is presented as
* Thanks are owed to my research assistants, Keith Lenton and Paul LeBlanc, the
latter of whose research was made possible through the University of Manitoba,
Undergraduate Research Awards; and the Legal Research Institute, University
of Manitoba, for additional student research support. I would also like to oer
a special thank you to the editors and to my colleague John Irvine for insightful
comments on a dra of this chapter, as well as to Kevin D Toyne for his support
and enthusiasm in keeping me updated as the Nakhuda case progressed.
ONSC [Nakhuda].
84
an illustrative platform from which to elicit themes, arguments, and ideas
regarding the legal classification of the exotic companion animal as “wild”
and therefore res nullius (that is, a thing owned by no one) and available
to be owned by anyone who reduces the animal into possession.
Nakhuda confirms that the determination of ownership of an escaped
pet turns on whether the animal is classified as wild (ferae naturae) or
domestictame (domitae naturaemansuetae naturae). Although the case
might be said to have achieved a good result for Darwin — in terms of his
best interests — it fails to provide guidance on a number of matters. For ex-
ample, it does not clearly articulate the test for assigning animals to the
wild or domestic class. Nor does it explain precisely how tort cases regard-
ing liability for damage caused by dangerous animals (cases referred to
by the Ontario Superior Court) are relevant to determining the owner-
ship of animals like Darwin under property law.
Accordingly, Section C explores the common law principles used by the
Ontario Superior Court to classify Darwin as ferae naturae and thus ca-
pable of becoming TAS property following his escape. The law regarding
liability for dangerous animals (scienter) is also canvassed for insights,
given the court’s references to cases from this area of law. The objective
of Section C is to help clarify the substance of the respective common law
rules for classifying animals under property and tort in order to evaluate
the Nakhuda analysis which, as will be demonstrated, applied the rules at
a very high level of generality.
Section D continues with a critical examination of the Ontario court’s
utilization of ancient common law cases advanced on the concept of pos-
session under Roman law by exploring a line of cases that embody a Lock-
ean perspective — that it is the mixing with human labour that assigns
value to and ultimately defines the animal. These cases not only help to
make more palpable the discrete policy objectives underlying the prop-
erty and tort treatments of animals, they readily demonstrate the utilitar-
ian and consequently disordered and asymmetrical expression of the wild
animal in law generally. The cases also reveal precedent and arguments
that could have supported a dierent result in Nakhuda. Section D rounds
out the discussion with a preliminary reflection on the appropriateness of
ongoing recourse to legal concepts grounded in ancient game policy for
These terms are further discussed in Section C, below in this chapter. See note
and accompanying text.
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