Lucy’s Place in History: Reece V. Edmonton (City), 2011 ABCA 238

The saga of Lucy the elephant includes, quite possibly, one of the most influential legal cases related to animal law ever decided in Canada[1]. Lucy is a forty-eight-year-old Asian elephant that has been living at the Edmonton Valley Zoo (Zoo) since 1977. Animal welfare groups and members of the public have been concerned with Lucy’s health and well-being for years, as she remains at the Zoo in seclusion from other elephants. The case, Reece v.Edmonton[2] (Reece QB), was the first attempt at a judicial remedy to her situation that members of the community felt, and still feel, is necessary. The Alberta Court of Appeal’s (ABCA) decision in Reece v. Edmonton[3] (Reece CA) is, on its exterior, a case that was decided not on content, but on process.

Photo Cred: https://www.edmonton.ca/attractions_events/edmonton_valley_zoo/lucy-news

Found within the substantive content, is the historical dissent written by The Honourable Chief Justice Fraser (Fraser) that alludes to a social and cultural bias of the legal, and general, community.[4]

Fraser asserted that, had the initial chambers judge’s decision[5] upheld by the appellate court[6] not been so hasty to dismiss the substantive details of the complainants’ case, the evidence provided by them “… packs a powerful punch.”[7]This attempt to whitewash the case with the excuse of an “…impermissible intrusion into the criminal law, and this an abuse of process …”[8] displays the court’s obstruction in holding Edmonton (City) accountable through the guise of the rule of law. In fact, the judge went even further to assert questionable protections by way of s. 7 and 11 of the Canadian Charter of Rights and Freedoms[9] (Charter) in the hypothetical event the City is taken to court[10]. This argument is not only highly debatable, but it could suggest a judicial bias against holding the City accountable for neglecting to follow animal welfare legislation and by denying any vehicle for public interest standing in this regard.

The common resistance to expanding animal rights is embedded within the judgement found in Reece v. Edmonton (Reece CA), starting with the initial decision of the chambers judge, accompanied by the dismissal by the ABCA,[11] and later refusal to be considered by the Supreme Court of Canada (SCC).[12] This judicial pattern is indicative of procedural contradictions made to suit seemingly predetermined outcomes by the court, reinforced by inconsistent enforcement of legislation, and adds to the overall negative social sentiment of lawmakers in relation to animal welfare so boldly emphasized in this case’s monumental dissent.

Decision and Dismissal

Asserted by the Court of Queen’s Bench of Alberta (ABQB), and upheld by the ABCA, were the issues of whether the claimants have standing, and whether the application to seek a remedy for harm is an abuse of process of the Court.[13] The short answers given by the courts were, “no” and “yes”, respectively. The analysis covered the central reasoning that labels the claimants’ application an abuse of power “… because they involve an attempt by a private litigant in a civil proceeding to give effect to a penal provision.”[14] While the enforcement of penal statutes within a civil proceeding is an accepted category of abuse of process, the exception can be made for a litigant with a “… private interest in addition to the general public interest of the enforcement of penal law.”[15] Embedded within the Criminal Code[16](Code) is the opportunity for any person, with reasonable grounds to believe that a crime has been committed, to make a written declaration to a Provincial Court judge.[17] It was the chambers court judge that made the decision to reject the statement made by the applicants as disclosing an offence.

Summary conviction offences in the Code provide the ability to proceed by private prosecution where the Attorney General does not intervene.[18] The Code is clear in its interpretation of a prosecutor, and it allows room for the informant to bring a declaration and gain this procedural authority through public interest standing.[19] It should also be mentioned that along with the right of public interest standing is an inherent acknowledgement of proper process. Separating the issues of standing and abuse of process into silos is inappropriate, as courts cannot deal with one without addressing the other.[20]

Inconsistent Enforcement of Legislation

The Edmonton Valley Zoo (Zoo) houses Lucy, its lone Asian elephant, and is provided the authority to do so through the City’s license under s. 13(1) of the Wildlife Act.[21] The Animal Protection Act (Act)[22] is legislation that charges the Edmonton Humane Society (Humane Society) with enforcing the Act’sregulations within the province of Alberta. Claimants alleged the City is violating s. 2(1) of the Act, which states, “No person shall cause or permit an animal of which the person is the owner or … in charge to be or to continue to be in distress.”[23] S. 1(2) provides guidance relating to how the Actdefines distress, including, “… abused or subjected to undue hardship, privation or neglect.”[24] Advocates for Lucy argued that the Humane Society’s review of Lucy’s welfare at the Zoo was not objectively considered; it relied on the Zoo’s own conclusion that she would suffer even further complications if relocated to an elephant sanctuary and a more appropriate climate. Public interest standing is essential in this case, as the details easily qualify the requirements of the public interest standard test.[25]

Parallel jurisdiction precedent displays the rationale for granting an applicant public interest standing through the case of the Province of New Brunswick v. Morgentaler (Morgentaler)[26]. Morgentaler highlights the test for public interest standing using the following questions: (1) is there a serious issue raised about the limits of statutory/administrative authority or invalidity of legislation?; (2) Does the applicant have a genuine interest in the issue at hand?; (3) Is there another reasonable and effective way to bring the issue before court?[27] Reviewing the test substantiates the applicant’s initial query into the administrative authority of the Humane Society. Regarding the genuine interest of the applicants, it is the clear affiliations of those involved (Community animal rights leader (Reece), Zoocheck Canada Incorporated (Zoocheck), and People for the Ethical Treatment of Animals (PETA)) that satisfy the second element of the test. Finally, a remedy by legislation was suggested by the judge as the only route to resolving the complaint, but the precedent of public interest standing is shown to be not only reasonable and effective, but appropriate due to the desire by the applicant, and the community, for a prompt result.[28]

Social Sentiment & The Charter

Modern-day approaches to forward-thinking sentiment regarding animal welfare contend with centuries of assigning only a commoditized value to non-human animals. This is not to say there are no signs of shifting legal and public consciousness of animal vulnerability, sentience, and human duty of care. Recent appellate-level decisions and legislative provisions slowly move the needle closer to more progressive animal ethics.[29] For example, Bill S-15: An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Interprovincial Trade Act is currently at second reading in the Senate and notably includes s. 445.3(1)(i), making it a criminal offence to possess an elephant or great ape that is kept in captivity.[30] This Bill would also place a prohibition on promoting performances that use captive elephants or great apes for entertainment.[31] This provision, as outlined by the Minister of Justice, has a possibility to engage s. 2(b) of the Charter because “… the proposed offence prohibits promoting the prohibited uses of elephants and great apes for entertainment purposes, in addition to prohibiting these uses themselves.”[32] Section 4.2 of the Department of Justice Act[33] requires a prepared Charter statement for public information and Parliamentary debate on all government bills, and the statement representing Bill S-15 includes potential issues with s. 2(b), 7, and 8 of the Charter.[34]

As shown in Bill S-15, there may be a propensity for critics of animal welfare progress to use the Charter as a means of slowing both growing sympathetic sentiment for animals as well as evolving legislation. In the case of Lucy the elephant, Reese QB, the chambers judge used the Charter to bolster his claim of abuse of process and asserted it “… denies the other party its constitutional rights.”[35] The judge erred in his insinuation that the Charteris designed to protect the government from the people, when it is meant to do just the opposite. The claims of infringement upon s. 7 of the Charter have no bearing on the case against the City in that without a deprivation of life, liberty or the security of the person, there can be no valid s. 7 Charter claim. A similar rationale can be made for the judge’s advancement of a s. 11 violation, as it provides the right to any person that may be charged with an offence.[36] The City is not a person, but it is most certainly part of the government, which is the very entity the Charter was intended to limit when encroaching on the freedoms of the people.

Landmark Dissent

Reece (CA) is notable for several reasons, but the most significant is the influential dissent authored by Fraser. The former Chief Justice’s words capture more than a legal disagreement with the majority opinion; she was successful in holding up a “…metaphorical mirror and challenged the legal system to look into it…to reflect upon an elephant suffering at human hands…” with an overarching focus of moving beyond the basic animal welfare model of the past.[37] The dissent moves into the realm of inquiry and of the changing social sentiment but primarily stays in its judicial lane. This is achieved by placing the onus back on the Legislature for “re-calibrating” the competing interests of all stakeholders when the intersection of social norms and the law relating to animal welfare moves toward a greater emphasis on animal rights and away from the over-emphasis of human need or pleasure.[38] Fraser’s dissent displays acknowledgement of the part the legislature plays in the role of social currency, but she firmly asserts the importance of holding all actors to the rule of law, even when it is the government.

As stated in the dissent, criticisms of the current animal welfare model fall into four main categories: (1) most existing laws are far from adequate due to the extreme flexibility in their interpretations; (2) the needs of animals are always secondary to human needs, regardless of purpose or necessity; (3) inconsistent enforcement due to lack of funding or serious interest; (4) denying legal standing to advocates in an effort to silence change.[39] Fraser contextualized these criticisms by outlining the full spectrum of potential outcomes for changes within the model. The most conservative are practical propositions affording room for the strong headwinds of opposition that can be expected with any changes to the traditional model of animal rights. A more balanced and moderate approach would include transitioning the category of animals from property to living property. The most ambitious and progressive goals include providing living animals a permanent classification of legal beings and identifying their sentience though abolishing any human use of animals.[40]

Fraser displayed cognizance of her provincial audience, accurately claiming that while Alberta reflects a more balanced approach to changing the animal welfare laws of the past, there is a clear and present effort, with progressive expectations and consequences, to help protect animals, showcasing the province of Alberta’s investment in reducing the suffering and exploitation of animals.[41] This balanced approach, identified by Fraser, brought a sharper focus to both the chambers judge and the appellate majority’s decisions to dismiss the case even before reviewing the substantive arguments of the complainants, “Abuse of process is an amorphous category rooted in a court’s inherent jurisdiction to stay actions that are ‘unfair to the point that they are contrary to the interest of justice.’”[42] In other words, she reminded the courts that the focus, outlined in the rules, should never suit the parties’ interests. The emphasis on the rules of the judiciary in Alberta provide Fraser the justification for allowing the appellants entitlement to bring their case to court.

Fraser’s dissent also focused on the City’s assertion of Charter rights’ violations as it “…claims a right to take refuge behind the full Charter skirt”.[43] However, a charge under the Act is a regulatory, not criminal, proceeding. The former Chief Justice points to a fundamental error made by the City in its Charter assertion; the rights provided by the Charter are available to the people for protection from the government and not applicable to the City if challenged by a claimant under the section of the Act.[44]

Allies of Lucy the elephant have been denied their day in court. Reece QB and Reece CA represent the attempts made at the provincial and appellate level, respectively, to allow Lucy a more meaningful life and to set precedent for other animals like her in situations of unhealthy and unnatural captivity. By contrast, the judgements held in both cases represent the pervasive hostility within much of the legal community, as well as society, relating to animal rights and progressive animal welfare legislation. Reece CA helped shift the trajectory of that sentiment through the voice of Fraser and her stunning dissent. The majority employed the all too frequent expectation of maintaining the status quo, and that expectation still lives on in legal, social, and political arenas, but progress is succeeding through a slow, but steady, shift in ideology for the betterment of non-human animals. Fraser’s own words, found within the introduction of her dissent, spoke to the guiding precept of all those concerned with the future of animals, “…how society treats sentient animals –those capable of feeling pain and thereby suffering at human hands…”[45] and this treatment can be the problem, or it can be the remedy.

The denial of standing, the claim of the abuse of process, and the City’s inappropriate claims of Charter violations are not only dismissive actions taken by the courts to quash an intelligent and robust argument in the name of Lucy the elephant and the rights of all sentient animals, but these actions also represent the continuance of past antiquated and uneducated decisions. Society knows the truth about animals and their suffering, and it is now the responsibility of the law to answer to that knowledge.

[1] Peter Sankroff, Vaughan Black & Katie Sykes, eds, Canadian Perspectives on Animals and the Law (Toronto, ON: Irwin Law, 2015) at 105 [Sankroff, Canadian Perspectives].

[2] Reece v Edmonton (City), 2010 ABQB 538.

[3] Reece v Edmonton (City), 2011 ABCA 238.

[4] Ibid at paras 39–199.

[5] Reece QB supra at paras 6–9.

[6] Reece CA supra at para 56.

[7] Ibid at para 103.

[8] Ibid at para 154.

[9] Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c. 11 [Charter].

[10] Reece QB supra at para 45.

[11] Reece CA supra at para 9.

[12] Tove Reece, Zoocheck Canada Incorporated and People for the Ethical Treatment of Animals, Inc v City of Edmonton, 2012 CanLII 22074 (SCC).

[13] Reece QB supra at para 4.

[14] Katie Sykes & Vaughan Black, “Don’t Think About Elephants: Reece v City of Edmonton” (2012) 63 UNB LJ 148.

[15] Ibid at 149.

[16] Criminal Code, RSC, 1985, c C-46 [Code].

[17] Sankroff, Canadian Perspectives supra at 311.

[18] Ibid at 313.

[19] Code, above note 10, s 785; Sankroff, Canadian Perspectives, supra at 311; Reece CA supra at para 142.

[20] Reece CA supra at para 140.

[21] Wildlife Act, RSA 2000, c W-10.

[22] Animal Protection Act, RSA 2000, c A-41 [Act].

[23] Ibid at paras 73–74.

[24] Ibid at para 6.

[25] Shaun Fluker, “The Elephant in the Courtroom Redux” (July 2, 2019), online: ABlawg, http://ablawg.ca/wp-content/uploads/2019/06/Blog_SCF_Zoocheck.pdf.

[26] Province of New Brunswick v Morgentaler, 2009 NBCA 26 at para 6.

[27] Ibid at para 9.

[28] Tyler Totten, “Should Elephants Have Standing?” (2015) 6:1 UWO J Leg Stud 9.

[29] Maneesha Deckha, “The ‘Pig Trial’ Decision: The Save Movement, Legal Mischief, and the Legal Invisibilization of Farmed Animal Suffering”, 2018–2019 50–1 Ottawa Law Review 65, 2019 CanLIIDocs 17, https://canlii.ca/t/2f3077.

[30] Bill S-15, An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, 1st Sess, 44th Parl, 2023, cl 9 (first reading 21 November 2023).

[31] Canada, Department of Justice Canada, Bill S-15: An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, (Government of Canada) online: https://www.justice.gc.ca/eng/csj-sjc/pl/charter-charte/s15.html# [Justice Canada].

[32] Justice Canada supra.

[33] Department of Justice Act, RSC, 1985, c J-2.

[34] Justice Canada supra.

[35] Reece QB supra at para 45.

[36] Charter supra at s 7, 11.

[37] Sankroff, Canadian Perspectives supra 106.

[38] Reece CA supra at para 57.

[39] Ibid at paras 60–63.

[40] Ibid at paras 67–69.

[41] Ibid at paras 73–87.

[42] Ibid at para 144.

[43] Ibid at para 149.

[44] Ibid at para 149.

[45] Reece CA supra at para 39.