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The challenge of animal welfare legislation in Canada Meaningful action on animal welfare means placing animals first, politics second, says leading veterinarian Dr. Terry Whiting Perhaps the strongest example of the difficulty involved in passing animal welfare law in Canada is the story of Common Morality Bill C-50. In September 1998, the federal Department of Justice issued a public consultation paper on crimes against animals. Among the questions asked was whether respondents thought the abuse of animals was closer in seriousness to producing child pornography or to stealing an automobile. Respondents voted resoundingly for the former. It’s a response that helped drive the animal cruelty provisions of Bill C-50, which sought to take mistreatment of animals outside the boundaries of property law and place it under a punishment regime similar to that for sexual offences and disorderly conduct. However, in February 2008, a Senate bill opted to increase penalties for animal cruelty – a step that was far from the sweeping change suggested by the response to the consultation paper. It came at the same time new instances of alleged farm animal mistreatment in Canada’s food production chain were being widely reported in the media. To many followers of politics, the watering-down of legislation over the course of a drawn-out lawmaking process would not be seen as an unusual one. However, Terry Whiting, a veterinarian with Manitoba Agriculture, Food and Rural Initiatives (MAFRI) responsible for the Manitoba Animal Care Act, sees a distinct irony in it all. “The same government that has been unable to pass animal cruelty legislation was able to pass gun control legislation in Canada, which is saying something,” he says. “It underscores just how difficult it is to develop meaningful animal welfare laws in this country.” The underlying challenge to this is based on the dynamics of how laws are developed and enforced in Canada, says Whiting, who spoke at the Livestock Care Conference in Red Deer, Alberta April 4. “Ultimately, the hope is that we can develop consistently enforced laws which maintain personal liberty and respect for certain traditional uses of animals unique to our cultural identity. At the same time, they must increase animal welfare in a meaningful way – an objective animal welfare legislation historically has not always met.” Challenges of law One of the biggest challenges of developing animal welfare law, and laws in general, is that there are often a number of agendas at play that can dilute the original intent of a proposed piece of legislation. “The reality is that laws work to focus public opinion, raise funds for campaigns, demonstrate public outrage, and get re-elected,” says Whiting. “Rarely do they actually protect the innocent from evildoers. In the case of animal welfare, they rarely help to improve the well-being of animals in any meaningful way.” So how can law be developed that is just, effective and transparent? Whiting proposes four steps. “The first is that the law reflect common morality by building consensus,” he says. “The second is to identify ways to make the law as intuitive, measurable, and understandable as possible. “The third is to decide who should enforce the law and how to pay for its enforcement. Finally, we have to ask ourselves if there needs to be a law or whether other tools, such as education and indoctrination, can play a role. All of these steps come with their own challenges and pitfalls.” Building consensus Developing laws which reflect the common morality of society is extremely difficult, says Whiting. Often there is no such thing as a written-in-stone consensus on the seriousness of an issue or whether or not the issue actually exists. Adding to the challenge of creating law is the fact that society lacks a common consensus on what its duties to animals really are, says Whiting. An example is the debate over the fox hunt in the United Kingdom, a debate which has raged for over 150 years. Because it’s a sport that has traditionally been reserved for the upper classes, Whiting says the historical driver of opposition to the sport has been class warfare with animal welfare tacked on as an afterthought. “Whether a fox gets torn apart by dogs was only a catalyst for a battle that went on at many different levels,” he says. “It’s an example of efforts to protect animals not always being about protecting animals, and shows that we have a lot of work to do to build toward a common understanding of animal welfare.” Building the perfect law There are five factors that go into making a law that effectively regulates human behaviour, says Whiting. “First, it must support an intuitive negative outcome defined by science. Secondly, its parameters must be specific and easy to measure. Third, humans have to have an ability to modify their behaviour in order to obey the law. Fourth, it must be easy to understand. Finally, it must be scaleable and flexible enough to meet the first four criteria across a variety of circumstances.” To Whiting, the best real-life illustration of such a law is “It is an offence to exceed the posted speed limit.” “In 10 words, you have a law that meets the five components of a good law. It’s intuitive – speed is causally related to getting into an accident. It’s easily and objectively measured – if you can see well enough to drive, you can see the sign which posts the speed limit. “The measurement is related to a modifiable human behaviour – the driver has the ability to slow down. It’s understandable – the posted speed limit is a concept easily understood across all languages and cultures. Finally, it’s scaleable – it’s easily adapted to local circumstances without a change in law, such as slowing down in a school zone.” Who enforces and who pays? Once the challenge of developing a law with those criteria is met, two major questions remain: who enforces the law and how is that enforcement paid for? “The general rule of thumb used in lawmaking is if the law is in the public good, the public pays. If it’s primarily in the interests of a private party, that private party pays. Most laws are a mix of public and private good, and that mix is usually reflected in the payment system.” In Canada, this is the case with animal welfare enforcement. There are three primary models whereby government shares the cost of law enforcement, says Whiting. “One of these is the use of user fee structures, in which governments produce services and charge individuals proportional to their use in the form of user fees. The passport office is an example of a government department that sustains itself through user fees. “Another is privatization by contracting out, in which the government collects funds, usually through the tax base, but hires the law enforcement provider in the marketplace. A dramatic example of this is Blackwater Worldwide, a private security contractor that provides military services to the United States government. “Finally, there is the option of ‘load shedding.’ In this case, both the funding mechanism and the service delivery are shifted to the private sector. The Ontario SPCA is an example. In that case, the legislation excludes uniformed services from administering the provincial animal protection statute.” Every law enforcement model comes with its own pitfalls, says Whiting. “In the U.S., ‘proceeds of crime’ laws, which allow police forces to incorporate proceeds from crime into their budgets, have driven police, in some instances, to intervene at the time of maximum profitability. In other words, they might decide to crack down on a drug ring once the criminals have already exchanged the drugs for cash.” So how does that relate to animal welfare? Whiting says this is where the relationship of media to enforcement organizations that rely on donations comes into play, a relationship that has the potential to dilute the intention of the law. “If you get more media attention when there’s 20 horses out of 100 dead compared to three horses dead out of 100, maybe there’s more profit to be made by letting 20 horses die for the greater good. I hope no animal welfare group sees things that way, but the point is it’s possible.” Do we need a law? Laws are not the only regulator of human activity – education, the media, and peer pressure also play a role in the decisions of individuals, says Whiting. “Smoking is an example of an activity that has decreased due in large part to a strong educational program emphasizing its adverse effects on health. These efforts are being backed up more and more by laws which prevent smoking in public. Smoking and drunk driving are examples where change was driven 80 percent by education, 20 percent by regulation.” Common understanding bottom line Ultimately, animal welfare law must have a clear basis in common understanding, says Whiting. “It must be acceptable to the people it applies to, such as the producer, credible to the inspectors enforcing it, and reasonable to the authorities dealing with cases in the courts.” A major challenge, he says, is getting animal welfare on the public agenda. Countries such as Australia have invested heavily in this, budgeting six million dollars towards its Australian Animal Welfare Strategy over a four-year period. Although Canada does not have a strategy nearly as comprehensive, Whiting says there is opportunity to open up a dialogue on animal welfare issues. “Organizations such as the National Farm Animal Care Council are attempting to develop the consensus between producers, consumers, and marketers needed to develop effective, consistent law.” Alberta Farm Animal Care (AFAC) is a member of the National Farm Animal Care Council. Its goals are to promote humane, responsible animal care; engage in discussion with the public; monitor and participate in issues and legislation; and encourage animal care research. More information on AFAC including additional articles on the Livestock Care Conference is available at www.afac.ab.ca
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