Rethinking the Application of Canadian Criminal Law to Factory Farming

AuthorKatie Sykes
 
Rethinking the Application of
Canadian Criminal Law to Factory Farming
Katie Sykes
This chapter argues that Canadian criminal law against animal cruelty
can apply to factory farming and provide a useful tool in trying to improve
the lives of farmed animals. My focus is on the general animal cruelty pro-
hibition in the Criminal Code, section .(a), under which it is an oence
to wilfully cause unnecessary pain, suering, or injury to an animal or
bird. By way of shorthand, I will refer to this provision as the “animal
cruelty oence.” Without much obvious support in either the legislative
text or authoritative judicial precedent, an interpretation of the animal
cruelty oence has nonetheless become entrenched whereby almost any-
thing done to animals as part of the business of producing animal food is
exempt from the Code’s application. I will refer to this interpretation as
the “implicit farming exemption. In this chapter I argue that the implicit
Criminal Code, RSC , c C- [Code].
Under the same section, it is also an oence for the owner of an animal or bird to
permit unnecessary pain, suering, or injury to be caused.
Neither the word “cruelty” nor any of its cognates appears in these sections of the
Criminal Code, but s . has the heading “cruelty to animals.” Causing unneces-
sary pain, suering, or injury can be taken as a legislative def‌inition of “cruelty.
See R v Ménard (),  CCC (d)  at  (Qc CA) [Ménard].
The argument made in this chapter also applies to the whole range of uses of ani-
mals that are deemed socially valuable — for entertainment, sport, and fashion,
34  
farming exemption is an incorrect interpretation of the Code that should
be discarded, and there is some reason to be optimistic that it could be.
As a preliminary matter, I should clarify some terminological points.
When I argue that criminal law should apply to cruelty to animals in the
farm setting, what exactly do I mean by “criminal law” and “cruelty”? “Crim-
inal law” means the criminal oence of causing unnecessary suering es-
tablished in the Code. The clarif‌ication is needed because there are other
statutory and regulatory animal welfare rules that are regularly applied
in the farming context — notably, the regulatory regimes under the Health
of Animals Act and the Meat Inspection Act that apply to transportation
and slaughter, as well as provincial (or territorial) animal welfare law
(although these laws typically provide express exemptions for standard
industry practices). Prosecutions under these laws do happen, and, in-
deed, they are in the nature of criminal prosecution in that they involve
prohibition and punishment. But my focus is on the “true” criminal ani-
mal cruelty oence under federal criminal law, which is virtually never
applied in this context.
As for “cruelty,” it is perhaps the central concept in this chapter. It is
eectively equivalent to causing unnecessary suering, the conduct pro-
as well as food — all of which get a free pass from criminal liability for animal
cruelty; the “implicit farming exemption” could be called the “implicit use of ani-
mals for prof‌it exemption,” except that it would be rather unwieldy. I have focused
on agriculture and food production because this industry has the greatest impact
on the greatest number of animals, as discussed below.
SC , c .
RSC , c  (st Supp).
See discussion of these provisions in Chapters  and .
For example,R v Maple Lodge Farms,  ONCJ  (discussed inChapter
,ibid)can appropriately be described as a criminal or at least quasi-criminal
prosecution. In that case,one of Ontario’s largest chicken processors was convict-
ed of multiple counts of violating s ()(d) of theHealth of Animals Regulations,
CRC, c (which prohibits transporting animals in a way that is likely to cause
injury or undue suffering by reason of undue exposure to the weather), was fined
,, and received a three-year suspended sentence with strict probation
conditions. But it did not arise under criminal law in the sense used here — that
is, under theCode’s animal cruelty provisions.
Maneesha Deckha reports that “[s]earches in Canadian legal databases failed to
uncover records of any anti-cruelty prosecutions against the agricultural indus-
tries.” See Maneesha Deckha, “Initiating a Non-Anthropocentric Jurisprudence:
The Rule of Law and Animal Vulnerability under a Property Paradigm” () 
Alta L Rev  at , n  .

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