Rethinking the Application of Canadian Criminal Law to Factory Farming

• Author: Katie Sykes
• Pages: 33-56

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 

Rethinking the Application of

Canadian Criminal Law to Factory Farming

Katie Sykes

A. INTRODUCTION

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  .