Offences against animals fall into two categories: intentional
and malicious hurting or killing of an animal either generally or in specific
ways that are deemed to be cruel; and neglect in the provision of necessary
food, water, shelter or care. In either case, the animal suffers needlessly
and so both types of offences are illegal.
Although the Criminal Code prohibits specific
acts that are deemed to be cruel, the catch-all offence prohibits causing
“unnecessary” pain, suffering or injury to an animal. “Unnecessary” is
not defined in the Criminal Code but courts have held that there
must be a legitimate purpose motivating the causing of injury or suffering;
even within that context, there is an obligation to avoid inflicting pain,
suffering or injury that is not inevitable, taking into account the circumstances
such as the objective, whether there were alternative means available
that would have caused less pain and suffering, and the accessibility
of those means.(1) Thus,
humans have a lawful excuse to kill animals for a legitimate purpose,
but when they do so, they must use methods and equipment that avoid causing
unnecessary pain, suffering or injury.
It is a defence to any of the offences against animals
(except keeping a cockpit) that the accused acted with legal justification
or excuse and with “colour of right.”(2)
What constitutes a sufficient excuse or justification has to be decided
on the facts of each case. The term “colour of right” means an honest
belief in a state of facts which, if true, would be a legal justification
or excuse. For example, it should be justified to kill an animal that
is attacking or threatening to attack another animal, but an animal that
is not a threat should be left alone. Statutory authorization also constitutes
legal justification, so, for example, it is not an offence to kill an
animal in accordance with provincial hunting regulations.
The current anti-cruelty provisions are based on a blending
of two separate principles: that animals should be protected from injury
or death because of their status as property to their owners; and that
animals should be protected from unnecessary cruelty in their own right
because they have the capacity to suffer. The first principle is reflected
in the fact that the provisions are located in Part XI of the Code, “Wilful
and Forbidden Acts in Respect of Certain Property.” Phrases such as “domestic
animal” and animals that “are kept for a lawful purpose” indicate that
the Criminal Code is primarily concerned with those animals in
which human beings have a particular interest as property. At the same
time, the second principle is evident in that certain of the prohibited
acts have nothing to do with protecting an owner’s proprietary interests.
Thus, subsection 446(1)(a) makes it an offence for an owner to permit
unnecessary pain, suffering or injury from being inflicted upon his or
her own animal, thereby protecting the animal’s own interest in being
spared from harm.
Apart from the offence of injuring or endangering cattle,
all other offences are summary conviction matters that carry a maximum
penalty of six months’ imprisonment or a $2,000 fine, or both.
The Impetus for Change
Despite a series of amendments over the years, the offences
relating to cruelty to animals have not changed significantly since the
first Criminal Code was codified in 1892. In response to the dissatisfaction
with the provisions expressed by many groups and individuals, in September
1998 the Department of Justice published a consultation paper entitled
Animals. One of the reasons for the department’s action was “mounting
scientific evidence of a link between animal abuse and domestic violence
and violence against people generally.”(3)
The consultation paper pointed out, however, that the
Criminal Code sees animals, at least in part, as property, and
offences against them are largely treated as property offences. Because
of the emphasis on property, the paper said that critics have pointed
out that the courts are inclined to look for a direct harm to human interests,
rather than looking at the harm to the animal; the result is quite lenient
sentences in many cases. According to the consultation paper, however,
a modernized animal abuse law could both make it easier to prosecute animal
abuse and send a message to those involved in the criminal justice system
that crimes against animals should be treated more seriously. It could
function as a more effective deterrent to morally reprehensible behaviour.
This behaviour, the paper affirmed, threatens not only the welfare of
animals, but also the moral and physical welfare of society at large,
since intentional cruelty can be an indicator of the potential for increasing
violence and dangerousness.
The consultation paper highlighted another criticism
of the current law, which is that it is not consistent and contains a
number of gaps. The Criminal Code spreads the offences relating
to animals across four sections and draws distinctions between different
types of animals. In particular, the Code provides a separate section
for injuring or endangering cattle, with such acts carrying a much stiffer
maximum penalty than for the same acts in respect of all other animals.
Another example is that the law prohibits all activities surrounding the
release of a captive bird for the purpose of being shot at after it is
liberated (subsection 446(1)(f)), even though this is something to which
all types of animals can be subjected. To remedy this, there could be
a consolidation of provisions that would afford the same protection to
The paper pointed to another concern, which is that the
current provisions fail to reflect adequately the seriousness of the crimes.
Critics of the current law have said that it needs to provide penalties
that present an effective deterrent to the mistreatment of animals, provide
an adequate mechanism for identifying and potentially rehabilitating violent
offenders, and reflect society’s disapproval of such acts. The current
summary conviction procedure is felt by some to be inadequate for the
more serious cases of intentional animal cruelty and torture. If animal
cruelty were a hybrid offence, the Crown would have more flexibility in
dealing with charges.
In addition to sentences of imprisonment and fines, the
current law allows the court to prohibit a convicted offender from owning
or having care and custody of animals for a maximum of two years. Some
have argued, however, that a reformed law should authorize the courts
to prohibit convicted offenders from possessing any animals for longer
periods of time, perhaps even permanently.
A further concern raised in the consultation paper is
that in many cases of animal abuse, a humane society will seize the animal
from the custody of the accused if treatment is necessary. The cost of
food, boarding and veterinary care can be considerable. There is currently
no means of ordering an offender to pay for these costs. Such a measure
would be another means of holding offenders responsible for the consequences
of their actions, while at the same time it would help to ensure that
humane societies recoup sufficient funds to be able to continue their
In response to the call for more effective criminal legislation
to deal with cases of cruelty to animals, proposed amendments to the Criminal
Code were introduced in Parliament in December 1999 as Bill C-17,
An Act to amend the Criminal Code (cruelty to animals, disarming a peace
officer and other amendments) and the Firearms Act (technical amendments).
This bill died on the Order Paper when the election was called
in October 2000.
Bill C-17 would have moved animals out of the property
section of the Criminal Code (Part XI – Wilful andForbidden Acts
in Respect of Certain Property) and into a new Part V, which would
have had the title “Sexual Offences, Public Morals, Disorderly Conduct
and Cruelty to Animals.” Thus, animals would no longer be regarded essentially
as property but, rather, as beings that feel pain. This view was confirmed
in the definition of an “animal” as “a vertebrate, other than a human
being, and any other animal that has the capacity to feel pain.” It would
also have made it illegal to brutally or viciously kill animals, increased
penalties for animal cruelty and neglect, allowed judges to order anyone
convicted under the law to pay restitution to the animal welfare organization
that cares for the animal(s), and allowed judges to ban those convicted
of animal cruelty from owning animals for any length of time.
There was opposition, however, from various farming,
hunting and angling groups that felt the changes would put them at risk
of prosecution for carrying out legitimate and lawful activities. This
concern appeared to stem from the potential for differing opinions on
what constituted the killing of an animal “brutally or viciously.” Another
concern was that the rights of property ownership would no longer be available.
In response, the Department of Justice stated that the amendments would
make no changes to the way the law applies to currently lawful activities
Bill C-15 and Bill C-15B
Following the 2000 election, an omnibus bill – Bill C-15
– was introduced on 14 March 2001. This bill included amendments
to the cruelty to animals sections of the Criminal Code that were
largely similar to those introduced in Bill C-17, save that there would
be a new Part V.1 (“Cruelty to Animals”) in the Criminal Code.
The House of Commons passed a motion on 26 September 2001 directing the
Standing Committee on Justice and Human Rights to split Bill C-15 into
two separate bills. The bill was split and Bill C-15B became An Act to
amend the Criminal Code (cruelty to animals and firearms) and the Firearms
Hearings on Bill C-15B began before the Standing Committee
on Justice and Human Rights on 16 October 2001. The committee heard from
such groups as the Fur Institute of Canada and the Canadian Cattlemen’s
Association who expressed concern that the bill would threaten their industries.
There was also concern over the possibility of frivolous lawsuits under
the new bill. The bill was subsequently amended to ensure that the principles
of common law that render any circumstance a justification or excuse for
an act or a defence to a charge would continue to apply to offences against
animals in the new Part V.1 of the Criminal Code.
Bill C-15B passed Third Reading in the House of Commons
and First Reading in the Senate on 4 June 2002. The bill also passed
Second Reading in the Senate on 13 June 2002, but did not proceed beyond
the Legal and Constitutional Affairs Committee of the Senate before Parliament
5. Bill C-10
and Bill C-10B
On 9 October 2002, Bill C-15B was reintroduced in Parliament
as Bill C-10. That same day, the new legislation – which read exactly
like its predecessor – passed First, Second and Third Reading in the House
of Commons and, on 10 October 2002, passed First Reading in the Senate.
On 20 November 2002, Bill C-10 passed Second Reading in the Senate. It
was referred to the Legal and Constitutional Affairs Committee, which
was also ordered to split the bill. The section pertaining to the Firearms
Act became Bill C-10A, while the part pertaining to animal cruelty
became Bill C-10B, An Act to amend the Criminal Code (cruelty to animals).
On 29 May 2003, Bill C-10B passed Third Reading in the
Senate, after senators approved a number of amendments to the legislation.
These amendments included changing the definition of the term “animal”
to a “vertebrate, other than a human being” and adding a new provision
that would give special treatment to traditional Aboriginal trapping,
hunting and harvesting practices. Bill C-10B was then sent back to the
House of Commons for a vote on the amendments. The bill was sent between
the two Houses of Parliament until it died on the Order Paper when
Parliament prorogued on 12 November 2003.
6. Bill C-22
When Parliament resumed in the spring of 2004, Bill C-10B
was reintroduced as Bill C-22. It passed First, Second and Third Reading
in the House of Commons on 8 March 2004, then passed First Reading in
the Senate on 9 March 2004. Second Reading of Bill C-22 took place on
20 April 2004, when the bill was sent to the Legal and Constitutional
Affairs Committee. The bill had not yet been discussed in committee when
Parliament was dissolved on 23 May 2004.
While the provisions in Bill C-22 were largely similar
to those proposed in earlier versions of the bill, two changes were made.
One change was that the term “animal” was now defined to mean “a vertebrate,
other than a human being” (as in the Senate amendment to Bill C‑10B).
This removed any reference to any other animal that has the capacity to
feel pain. The other change was that specific reference was now made
to the defences set out in subsection 429(2) of the Criminal Code.
The bill clarified that these defences would apply to any offence related
to cruelty to animals.
Concerns were raised by some that there were no clear
guarantees to protect traditional Aboriginal hunting, fishing and trapping
rights. It was felt, therefore, that Bill C-22 had the potential to make
criminals out of Aboriginal people who follow a way of life that is central
to their identity.(4)
In addition, there was a fear that animal rights groups would use a new
law on animal cruelty to further their goals, described as the eventual
ban on the consumptive use of animals, the challenging of legitimate animal
use practices and the setting of new legal precedents.(5)
C. Laws in Other
Countries on Animal Cruelty
England and Wales
The current law on animal welfare in England and Wales
is contained in over 20 pieces of legislation. The key piece of
legislation is the Protection of Animals Act 1911. This statute
sets the standard below which conduct towards domestic and captive animals
becomes unlawful, by defining an offence of cruelty to these categories
of animal. The offence of cruelty is widely drawn; it applies to all
acts done in relation to domestic and captive animals, other than those
carried out lawfully under the Animals (Scientific Procedures) Act
1986. The law regulating people’s conduct towards animals remained
virtually unchanged until the introduction of the Agriculture (Miscellaneous
Provisions) Act 1968. This legislation was largely directed towards
farmed animals and focussed, for the first time, on the question of their
welfare – going beyond defining a standard below which conduct must not
fall, to defining how animals must be cared for. The Agriculture (Miscellaneous
Provisions) Act 1968 was the first legislation to use the term “welfare”
in relation to animals; it creates an offence of causing unnecessary pain
or distress to livestock, or knowingly permitting such pain or distress
to be caused.
In January 2002, the Department for Environment, Food
and Rural Affairs began a public consultation on what people would like
to see in 21st-century animal welfare legislation. The result
of this consultation was the draft Animal
Welfare Bill, which was published on 14 July 2004. The draft
bill is intended to address the current lack of legal protection for the
welfare of companion and kept animals, including farmed animals. It is
intended to re-enact the substance of the cruelty offence set out in the
1911 Act, but also to introduce a new offence of failing to take reasonable
steps to ensure an animal’s welfare. The key purpose of this new welfare
offence is to enable action to be taken about an animal’s welfare before
suffering has occurred. Currently, companion and kept animals are protected
only by the cruelty offence in the 1911 Act, which requires evidence of
unnecessary suffering before action can be taken against an offender.
The bill affords protection to vertebrate animals other
than human beings, but the categories of animals that are protected under
it depend upon the offence in question. The cruelty offence can apply
to any animal. The draft bill would make it an offence to act or fail
to act and thereby cause an animal to suffer. The suffering must be considered
“unnecessary,” meaning it could reasonably have been avoided or reduced
or was not for a legitimate purpose. Operating on an animal without due
care and humanity, arranging an animal fight, or poisoning an animal are
also made offences.
The bill would also make it an offence to fail to take
reasonable steps to ensure an animal’s welfare, but this applies only
in respect of animals that are owned or for which someone is responsible
or in charge. An animal’s welfare is taken to consist of the meeting
of its needs in an appropriate manner, and those needs are taken to include: