Animal Law

BOOK CHAPTERS

Receiving the Voiceless Grant award from Hugo Weaving that helped launch Animal Law in Australasia, 2007

Bringing Animal Abusers to Justice through Independent Means: Private Prosecutions and the Enforcement of Canadian Animal Protection Legislation (2015) [co-authored with Sophie Gaillard]: In this chapter, a contribution to the Perspectives on Animals and the Law in Canada project set out above, we intend to consider the viability of bringing a private prosecution under Canadian animal cruelty legislation.  We shall look at the source of the power to prosecute privately, the benefits prosecutions of this sort might bring and the particular challenges posed where the prosecution involves a case of cruelty against animals.

The Canadian Seal Hunt as Seen in Fraser’s Mirror (2015) [co-writing with Lesli Bisgould]: In her landmark dissent in Reece v Edmonton (City), Alberta’s Chief Justice Fraser held up a metaphoric mirror, challenging all of us to look closely at how an elephant held captive at a Canadian zoo was suffering at human hands.  There can be no doubt as to the profound suffering imposed on wildlife in captivity, yet even in their natural environments, animals are not safe from human-caused misery.  In this chapter, a contribution to the Perspectives on Animals and the Law in Canada project set out above, we will train “Fraser’s Mirror” on the Canadian seal hunt,  providing an overview of its history and the law governing it.  The seal hunt example serves as the context for a broader consideration of the ways in which the structure of wildlife management laws and the assumptions underlying them fail to protect animals and effectively protect those who seek to hurt them.

Introduction to a New Dialogue (2009) in Animal Law in Australasia: A New Dialogue (2009) [co-authored with Steven White]: The introduction to my book Animal Law in Australasia, it explores the various themes running through the larger work, and considers why it is essential to being examining this subject in a more sophisticated way.   To read a copy of the introduction, click here.

Deconstructing the Welfare Paradigm: What Has the Law Governing Humane Treatment Done to Make the World a Better Place for Animals? (2009, 2013) This article is my primary contribution to the book, Animal Law in Australasia: A New Dialogue (2009) discussed above.  A revised version was published in Animal Law in Australasia: Continuing the Dialogue (2013).  The enactment of the Animal Welfare Act 1999 was supposed to herald a new era of promise for animals in New Zealand, with welfare the primary consideration.  The article examines where the Act has succeeded and failed in obtaining a better life for animals.

Animal Law: A Subject in Search of Scholarship (2009): This Chapter in Animal Law in Australasia: A New Dialogue (2009) builds upon my experience in teaching Animals in the Law in 2006-2008, and suggests why animal law is such a useful course for students to study.  The article explains how animal law addresses a number of core jurisprudential questions in a unique way, including: what is a “person”?  What is it that makes this legal entity able to access legal protection?  How do we legally measure antithetical interests like human and animal needs? The answer to these questions are useful not only for the students’ understanding of animal issues, but also for their broader understanding of law and what the law can achieve.

PUBLISHED ARTICLES

The Mens Rea for Animal Cruelty Offences after R v Gerling: A Dog’s Breakfast (2016) 26 Criminal Reports (7th) 267: The British Columbia Court of Appeal recently released its decision in R. v. Gerling – the first appellate authority in more than 40 years to discuss the elements of the cruelty against animal offences located in s. 445.1 of the Code.  Unfortunately, the decision is a major disappointment. Though it was presented with competing visions for the provision, and lengthy discussion surrounding the applicable mens rea, the Court of Appeal dealt with the legal arguments in just three short paragraphs. In the process, the decision seemed to confuse an evidentiary presumption with a mens rea standard, and then confused the applicable subjective standard with an objective one. It was anything but a strong and decisive decision on cruelty against animals. In this comment, I discuss the decision and examine what it does both for the criminal law and the protection of animals. 

Opportunity Lost: The Supreme Court Misses a Historic Opportunity to Consider Question of Public Interest Standing for Animal Interests (2012) 30 Windsor Yearbook of Access to Justice 129: The Supreme Court of Canada recently denied leave to appeal in Reece v. Edmonton (City), a 2-1 decision of the Alberta Court of Appeal, which focused on the right of private parties to seek judicial intervention on behalf of animals.  In this article, solicited by the Windsor Yearbook of Access to Justice, I examine what was lost by this decision to deny leave, explore the important questions that were at stake in the appeal, and suggest why the Supreme Court should have decided otherwise.

Animal Welfare Law and The Concept of Dialogue: Can Welfare Law Simultaneously Fail and Succeed? (2012) 18 Animal Law Rev. 281: Animal law advocates often debate whether real progress towards the better treatment of animals can ever occur through modifications to the welfare status of animals or whether the abolition of animal exploitation is required for any significant change. In this article, I examine this question in a different way, by considering the possibility that some types of animal welfare law, while “failing” in their own right, can nonetheless improve the dialogue between the state, its citizens and animal use industries and as a consequence gradually establish a public space in which meaningful animal welfare reform can in fact occur. Looking at the first ten years under the New Zealand Animal Welfare Act as a case study, I  suggest that the legislation has been useful in advancing the cause of long-term animal welfare reform—though not in the way the legislators might have anticipated. While the Act has failed to stimulate meaningful reform directly, it has changed the nature of the dialogue surrounding animal issues in New Zealand, and in so doing, may well have set the stage for meaningful changes in future years.

Wildlife and the Animal Welfare Act 1999: Can “Cruel” Acts of Hunting Ever Be Prosecuted? (2011) 15 NZ J. of Env. L.  213: Section 175 of the Animal Welfare Act 1999 exempts “hunting” and “killing” a wild animal from prosection.  What is the impact of this section?  Does it allow any conduct to be used upon wild animals, or merely certain types of activity?   I argue that the vagueness of this section impedes prosecution of crimes against wild animals. [To download a copy of this article, click here.]

Turn Up the Dialogue (2008) 1 Australian Journal of Animal Protection Law 6: This short piece was written as the introductory commentary for the inaugural edition of the Australian Animal Protection Journal.  It discusses the progress that has been made in developing animal law in the region over the past several years and provides a preview of my book, Animal Law in Australasia: A New Dialogue.

Five Years of the ‘New’ Animal Welfare Regime: Lessons Learned From New Zealand’s Decision to Modernize Its Animal Welfare Legislation (2005) 11 Animal Law Review 7: This article critically examines New Zealand’s law governing the treatment of farm animals, and consider the progress – and lack thereof – made during the first five years under the AWA. It focuses upon “lessons learned” from the ‘new’ era of animal welfare that began with the enactment of the AWA, with the hope that these lessons will provide insight for animal advocates in jurisdictions contemplating similar changes.

This article was reprinted as a chapter in Animal Rights and Law (Icfai University Press: India, 2008) at 236-274. A copy of the paper can be downloaded from the Social Science Research Network.

Flawed Logic Impedes Animal Welfare Act Sentencing [2004] New Zealand Law Journal 357: Changes designed to increase sentences handed down for significant cruelty against animals have been mostly ineffective in New Zealand. It is submitted that the reason for this failure is a flawed form of reasoning being applied in the sentencing for these offences. This article will consider how an inappropriate judicial attitude to crimes against animals has impeded Parliament’s objective of bumping up the penalties for these offences.  This paper can be downloaded from the Social Science Research Network.