The "Pig Trial" Decision: The Save Movement, Legal Mischief, and the Legal Invisibilization of Farmed Animal Suffering.

• Author: Deckha, Maneesha

CONTENTS Introduction 69 I. Overview and Anchoring Orientation 73 A. Facts and Issues 73 B. Issue 1: Are Pigs Persons? Opening Frame of Contention 74 II. Legal Invisibilization Across Issues 2, 3, and 4 77 A. Issue 2: Were the Pigs Used Lawfully? 77 B. Issue 3: Did Krajnc Interfere With the Operation of the Property? 84 C. Issue 4: Was Krajnc Legally Justified in her Actions? 87 III. The Global Development and Environmental Harms of Intensive Farming, and an Emergence of Plant-Based Legality? 93 Conclusion 96 INTRODUCTION

When animal activist Anita Krajnc was criminally charged for giving water to a thirsty pig who was en route to a slaughterhouse, the world took notice. (1) Krajnc is the founder of the animal advocacy group Toronto Pig Save, a group dedicated to bearing witness to the suffering of pigs in their near-final moments during transit from an industrial agricultural site of production to slaughter. Started in 2010, Krajnc and Toronto Pig Save have galvanized the formation of similar groups worldwide--now numbering over 200. Collectively, these groups are known as the Save Movement in animal advocacy circles. (2) At one of these vigil-type protests held by Toronto Pig Save in the summer of 2015, Krajnc gave water to a pig on a transport truck. She was eventually prosecuted for criminal mischief. A trial ensued attracting international media coverage, and the judgment of Justice David A. Harris of the Ontario Court of Justice (Court) was rendered in May 2017.

R v Krajnc is exceptional for an array of reasons that compel its close analysis. (3) In terms of the defence counsel's novel legal arguments in favour of farmed animals, and their consideration by the Court as reflected in the written judgment, the case is unparalleled in Canada and worldwide. Defence counsel highlighted the pigs' sentience, sociality, and subjectivities in order to contest their propertied status and demonstrate their suffering as farmed animals. In addition, counsel advanced arguments that exposed the multiple detrimental impacts of industrial animal farming on people and the planet generally. (4) As a result of these submissions, the judgment of Justice Harris canvassed the following topics:

* whether animals are property or persons;

* the sentience and complex capacities of pigs;

* whether or not factory farmed animals endure conditions of torture;

* comparisons between the Save Movement and other social justice movements;

* the concept of bearing witness to farmed animal suffering; and

* the social, health, and environmental costs of producing and consuming animals.

On first glance, when we look at this list and recall that Krajnc was acquitted, it seems that the case is a clear "win" for animal advocates seeking to disrupt the discursive representations of animals within the farmed animal system. Indeed, we would be hard-pressed to locate another judicial decision where the court heard so many groundbreaking arguments in favour of animals alongside critical perspectives about the negative impacts of the industrial food system for both animals and humans. Yet, the case is overwhelmingly a disappointment in its treatment of farmed animal suffering. Despite acquitting Krajnc, the judgment of Justice Harris endorses, if not the criminalization of compassion for animals, then social stigma against non-normative views in favour of farmed animals. The reasoning is an example of a golden opportunity where the law could have legitimately (as per the norms of judicial decision-making) and productively borne witness to animal vulnerability and suffering at multiple points of the analysis, but did not. (5)

As I shall argue, using the theoretical framework of critical animal studies that adopts an intersectionally aware animal-centered lens, (6) the judgment instead legally reinforces what Yamini Narayanan calls the "invisibilization" of farmed animals. (7) This legal invisibilization occurs through Justice Harris' short-circuiting of multiple opportunities from the defence's submissions to express concern over the treatment of animals in confinement farming, or recognize their vulnerability or suffering. Specifically, the decision adopts implicit and explicit anthropocentric assumptions (that could have been avoided and were not inevitable, even allowing for the legal status of animals as property) and expresses a cavalier attitude to the suffering of the pigs. In other words, the judgment implicitly takes the normativity of industrial farming, instead of the vulnerability and suffering of animals, as a generative departure point. This legal manoeuvre, as I demonstrate below, not only minimizes the gravity of the violence farmed animals endure, but also stigmatizes non-normative views regarding the treatment of farmed animals, and reinforces farmed animals' non-subject status in the colonial settler legal order.

After an explanation of the core facts and issues, I examine four of the five legal issues itemized in the case. I employ socio-legal methodology to place the doctrinal legal discussion in a broader social context and better distill the social norms influencing legal principles, concepts, and reasoning. (8) In discussing the first issue in Part I, I anchor the discussion in a critique of the Court's unreflective endorsement of the property status of animals. After establishing this opening to the case, I demonstrate in Part II how the Court's legal reasoning across three of the legal issues in the case skirts or minimizes the issue of farmed animal suffering. The Court evades this issue even though the defence submissions highlights it through adopting anthropocentric norms regarding the perception and representation of violence against animals. The decision also displays a cavalier attitude to what pigs experience in confinement agriculture, and stigmatizes those who contest such norms and express a non-normative view in favour of farmed animals. To offer the reader a balanced assessment of the case and point to animal advocacy legal interventions that might presently have more traction, Part III discusses two hopeful features of the judgment of Justice Harris. Despite the inability of the judgment to bear witness to farmed animal suffering, I briefly reflect on the hopeful aspects of the case as juridical interventions that, if reinforced and increasingly legitimated by other courts and legal actors, may help cultivate new industry norms that will result in future reductions in farmed animal suffering.

1. OVERVIEW AND ANCHORING ORIENTATION

   1. Facts and Issues

      Toronto Pig Save members have protested multiple times at the site at which Krajnc's action on June 22, 2015, eventually led to her arrest and charge. At these vigils, members sometimes give water to the pigs through slits in the walls of the trucks that transport the pigs from the farm to the slaughterhouse. They are able to do this by occupying a traffic island at an intersection where the trucks typically stop while waiting to turn toward the slaughterhouse about 100 metres away. (9) The hydrating actions of Krajnc and her colleagues had not previously attracted legal scrutiny, despite the fact that Krajnc had attended vigils for years, and that police had previously attended these protest vigils without taking any action against the protestors. (10) On this specific day, however, instead of merely driving away from the intersection when the traffic signal permitted, the truck driver got out and had words with Krajnc. He asked her what was in the water and told her to stop giving it to the pigs, but Krajnc refused the request. The next day, the driver called his employer, who officially filed a police complaint against Krajnc. Several months thereafter, the charge of legal mischief was laid against Krajnc for having given the pigs an "unknown liquid." (11)

      In Canada, criminal law is a federal matter governed by the Criminal Code. (12) Legal mischief is defined in four ways under section 430(1) of the Criminal Code, all having to do with interference with property rights. Given the particular facts in the case, Krajnc was charged pursuant to subsection 430(1)(c), which states that legal mischief occurs when someone willfully "obstructs, interrupts, or interferes with the lawful use, enjoyment, and operation of property." (13) Accused persons, however, are allowed to assert that they "acted with legal justification or excuse and with colour of right." (14) As the Crown proceeded summarily against Krajnc, (15) she was facing a possible fine of $5000 or six months' incarceration. (16)

      In assessing these provisions and their established meaning, Justice Harris stated that the Crown would have to demonstrate beyond a reasonable doubt that all of the following issues should be answered in the affirmative to substantiate a finding of legal mischief in this case:

      1. Were the pigs property?

      2. Were the pigs being used lawfully?

      3. Did Ms. Krajnc obstruct, interrupt or interfere with the lawful use, enjoyment or operation of property:

      4. Did she do so wilfully?; and

      5. Did she do so without legal justification or excuse and without colour of right? (17)

      Krajnc eventually pleaded not guilty to the charge, (18) with her defence counsel leading arguments with respect to all of these issues. My analysis below argues that the cumulative reasoning of the judgment on four of the five issues therein reinforces the invisibility of the suffering of farmed animals in the Canadian food system, and reinforces the stigma against those who express compassion for these animals, even when death is literally around the corner. (19)

   2. Issue 1: Are Pigs Persons? Opening Frame of Contention

      To initially vacate the charge, the defence challenged a foundational principle of the liberal legal system, namely that animals are property. (20) To substantiate this challenge--a radical one by all accounts in our present colonial legal system--and attempt to demonstrate the personhood of pigs...