Rarotonga, 2010

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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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(*) = Guide

PAWS (Provincial Animal Welfare Services Act)
Legal Guide

Ch.1 - Overview

  1. General
    (a) Three Jurisdictions
    (b) PAWS History
    (c) PAWS Now
  2. Summary
    (a) Overview
    (b) Standards of Care and Administrative Requirements [Ch.3]
    (c) Animal Welfare Inspectors and Related (AWIs) [Ch.4]
    (d) Prohibited and Restricted Animals [Ch.5]
    (e) Distress [Ch.2] / Protective Search, Seizure and Powers [Ch.6] / ACRB Appeals [Ch.7]
    (f) Enforcement Search, Seizure [Ch.8] / Offences [Ch.9] / Administrative Penalties [Ch.10]
    (g) There's More
    (h) It Keeps Coming ...
  3. The Future
    (a) Discussion
    (b) The Modern Debate
    (c) Where Should PAWS Go?

1. General

(a) Three Jurisdictions

The PAWS (Provincial Animal Welfare Services, 2019) Act is the Ontario animal welfare statute. The legal issue of animal welfare legitimately spreads across all three Ontario jurisdictions (federal, provincial and municipal).

The federal one is the best know and of the longest heritage, and is the subject of a separate Animals and the Criminal Law (Canada) Legal Guide.

The municipal jurisdiction is not as well recognized in practice but is clear. The Municipal Act, 2001 [MA] and the City of Toronto Act, 2006 [CTA] both grant jurisdiction to "... pass by-laws respecting ... animals" [MA, s.10(2)9; s.11(3)9; CTA s.8(2)9]. While some have been hesitant to extend this new jurisdiction to animal welfare, it is a provision of PAWS itself which makes it implicitly clear that it does:
Conflict with municipal by-laws
67 In the event of a conflict between a provision of this Act or of a regulation made under this Act and of a municipal by-law pertaining to the welfare of or the prevention of cruelty to animals, the provision that affords the greater protection to animals shall prevail.
(b) PAWS History

PAWS itself, about two years old at the date of writing, has a relatively odd history. Without delving into it unnecessarily, it results immediately from a court case (two levels) [Bogaerts v. Attorney General of Ontario (Sup Ct, 2019) and Ontario (Attorney General) v. Bogaerts (Ont CA, 2019)]. The first of these (the lower court) ordered a delayed Charter strike-down of key parts of the old OSPCA Act, but the appeal court reversed and would have preserved the old Act.

Then it gets weird. As best I can tell is that both the OSPCA (the animal charity) and the province really didn't mind the lower court strike-down at all and welcomed the oppourtunity to repeal and replace the statute - thus PAWS.

(c) PAWS Now

Barring intentional mischief, the result now - after two years after it's passage - can't be to anyone's satisfaction. I recall reviewing the statute back then at it's origin and concluding that it was a legislatively 'scampered-together' combination of the old substantive 'distress' law from the OSPCAA, and not much else. The overwhelming impression I recall from that first review was that practically everything substantial in PAWS was pending the issuance of regulations to give the Act any meaning or substance - ie. 'to be prescribed'. But that never really happened.

By 'to be prescribed' I mean 'set out in the regulations', those delegated (and necessarily deferred) legislative documents made by Cabinet (the Lieutenant-Governor in Council) or the Minister of the Solicitor-General. These are where the Act allows for additional, usually more-specific laws that spell out aspects of the statute that the executive government wishes to be able to amend itself (ie. avoid the legislature).

Today - as I review the law to write this guide - I find that initial analysis thoroughly justified, only now they don't have the then-urgency to justify it still being the case. In short, nothing of substance has yet been done over the last two years and animal advocates are still waiting for PAWS 'to be prescribed'.

So I hesitate to call this a 'guide', rather than a case study in statutory failure. The one word that I have settled on as characterizing PAWS today, is a perhaps too gentle one when one thinks of it's purpose - preventing animal suffering, that is: 'ineffectual'. PAWS is ineffectual.

2. Summary

(a) Overview

This section canvasses the major themes of the guide chapters.

(b) Standards of Care and Administrative Requirements [Ch.3]

The 'standards of care' provisions [Ch.3] suffer chronically from the substantive legal sin of 'vagueness', rendering them overwhelmingly unenforceable in their offence prosecution mode. 'Vagueness' means they are too ill-defined to support a Provincial Offence Act offence prosecution under any competent defence. For example, take Reg 444/19, s.3(3) "Every animal must be provided with the care necessary for its general welfare" - try to get a conviction on that in this age of Charter law. I explain this more in Ch.3, s.1(b).

The other enforcement option, administrative penalties, is also unenforceable as it lacks the necessary supporting regs for it's ostensible appeal regime, thus an appeal can't even be launched let alone be successful (any court would thrown an administrative penalty case out in a minute as a gross violation of administrative fairness and natural justice). I explain this more in Ch.10, s.1(c).

(c) Animal Welfare Inspectors and Related (AWIs) [Ch.4]

The 'animal welfare inspector' (AWI) 'system' (and I use the term loosely) is a recipe for ineffectuality, with the decision to hire AWIs being left to the discretion of Ministers, municipalities and various other quasi-governmental entities - not the province or any centralized body that controls all AWIs. The primary legal relation with AWIs is the employment one between those government bodies (the employers that pay them) and the individual AWIs. That is, as AWIs they are 'trained' [oh right, they will be trained when regulations are passed to that effect under PAWS 6] but they are hired (and fired) by their primary employers. In short, AWIs don't 'belong' to the province, they sort of occur here and there when municipalities, ministries and any of a vast number of other governmental agencies decide they want them, and decide they want to pay for them.

Contrast this scenario will a similar body, say the OPP - nice, top-down experienced management running a province-wide police body - makes sense. The AWI spreads itself to the lowest experience levels of police experience and allows animal welfare policing to be done at the behest (or ignored entirely) at the financial whim of whichever local (geographically or topically) body feels the need to advance animal interests. Maybe the big cities - but maybe not.

Add in the failure to pass any necessary regulations to facilitate CAWI (chief animal welfare inspector) case communication between the locally-employed AWIs and the province-wide CAWI, and you have a system that can't work even if anybody wanted it to. Communication between AWIs and the CAWI, especially of "personal information" of investigation subjects, is essentially illegal - the necessary regs that would legalize it don't yet exist.

(d) Prohibited and Restricted Animals [Ch.5]

Again - in what may be the single most tragic omission - no regulations exist to specify either prohibited or restricted animals. Only orcas, set out in the Act itself, have any claim to enforceability.

Yet, the categorization of animals under PAWS as either prohibited, restricted or 'un-restricted' (for lack of a better term) is key to the future of our relationship with animals (read on at s.3. below).

(e) Distress [Ch.2] / Protective Search, Seizure and Powers [Ch.6] / ACRB Appeals [Ch.7]

The only substantive things that remain in PAWS are the old OSPCA 'distress' standards [Ch.2], and the residual protective search, seizure and order powers. But what remains of the effectiveness of these provisions - when they must battle through the handicaps set out in Ch.4 [AWIs] is yet to be seen - but these are the only glimmers of hope in the whole PAWS mess.

The ACRB appeal system, which support these provisions, still seems to be workable.

(f) Enforcement Search, Seizure [Ch.8] / Offences [Ch.9] / Administrative Penalties [Ch.10]

None of the above can work - other than feebly - for the reasons set out in the Ch.3 Standards of Care discussion [see (b) above].

(g) There's More

If there were any area in PAWS that leads me to conclude that it is a scampered-together piece of legislation, it is these - the 'activity/procedures/items' of PAWS 21-23.

The 'activities/procedures/items' each have in common the legal fact that they don't mean a thing until they are 'prescribed' - which they aren't of course. Call me cynical, but this seems to be the result of legislation made in a hurry with it's makers thinking "we don't have any idea what to do with this, so let's try to enable our ability to flesh this out with regulations down the road" - with this as the result. It's sort of a big animal welfare legislation "we reserve the right to do this later when we figure it out". The ultimate goal is to avoid this having to go through the legislature again, and keep it entirely 'in-house' - which is the nature and purpose of regulations, just not so blatantly politically self-serving.

Here below are PAWS 21-23, with each high-lighted portion reflecting a necessary instance of sub-delegated (ie. deferred) legislation. Recognize that none of these have been proclaimed in law:
Prescribed activities

21(1) No person shall engage in an activity prescribed by the Lieutenant Governor in Council with respect to animals unless the person is authorized to do so in accordance with the regulations made by the Lieutenant Governor in Council and complies with any conditions of the authorization.

Required information

21(2) A person who engages in an activity prescribed by the Lieutenant Governor in Council with respect to animals shall provide the Minister with prescribed information in accordance with the regulations made by the Lieutenant Governor in Council.

Prescribed procedures

22 No person shall cause an animal to undergo a procedure prescribed by the Lieutenant Governor in Council.

Prescribed items

23 No person shall possess, purchase or sell an item prescribed by the Lieutenant Governor in Council which may cause an animal distress.

'Sell' includes offer for sale and expose for sale [PAWS 1(1)].
(h) It Keeps Coming ...

If there is any doubt about the role of delegated legislation (ie. regulations needing 'to be prescribed') in delaying the PAWS project it can be found in the Regulation-making authorities [PAWS 69(1) (Cabinet) and 69(2) (Minister)]. Such provisions, almost universal in modern-day statutes, in this case go 'to be prescribed' extremes.

The vast bulk of the PAWS regulation-making powers that have been used, are focussed overwhelmingly on non-substantive procedural issues such as the following [in other words, legal fluff to the absence of legal meat (pardon the animal analogy)]:
  • Code of Conduct Reg [Reg 445/19]

    Making sure that citizens have effective complaint recourse against animal welfare inspectors (AWIs) in the course of what few duties they have remaining [Ch.4].

  • Disclosure of Personal Information [Reg 443/19]

    Making sure that the Chief Animal Welfare Inspector (CAWI) has regulated freedom to disclose 'personal information' to various parties for such things as preventing the undermining of "public confidence in the administration of the Act" [Reg 443/19, s.9(1)(b)]. That is, if the CAWI can receive any case information from the (hopefully) on-the-ground AWIs at all when they can't talk to them about cases, because they lack of regulation authorizing this communication under PAWS 4(1-3) [see Ch.4, s.2(e) "Understanding the AWI System"].

  • Telewarrants [Reg 14/20]

    AWIs can stay modern in their enforcement techniques by getting 'telewarrants' - that is if it's still worth pursuing it in the face of the stiff vagueness defence that will be set up against any offence prosecution - and the complete break down of the administrative penalty regime caused by (you guessed it), a lack of supporting regulations (here, for it's appeal system).

3. The Future

(a) Discussion

When viewed in even the most sympathetic light, it's obvious that PAWS as a legislative venture is in denial of itself. The blame for this is not only political, though political self-honesty would have gone far to recognize the futility of the venture. More fundamental is that, while animal welfare law has a role in intentional cruelty cases (as in the Criminal Code), the task of making life minimally tolerable for the thousands and thousands of species that can come under man's hand, is not possible - it's far too huge and our knowledge is far too limited to the task. The fact that we think we can provide any standard of 'welfare' to these hapless beings is an indication of how highly humans hold their ability to control everything in the world, and the disregard that they hold all other beings in the world.

This conclusion becomes clear when we consider the futility of drafting legally-enforceable 'standards of care' for captive wildlife [Ch.3, ss.3,5]. The regulation [Reg 444/19] drafted for this purpose reads like a 'wish list' of how we, in our self-deception, wish we could co-exist with wild animals:
  • every animal must be provided with the care necessary for its general welfare [s.3(3)]

  • every animal must be transported in a manner that ensures its physical safety and general welfare [S.3(4)]

  • every animal must be provided with adequate and appropriate, ... (a) space to enable the animal to move naturally and to exercise [S.3(6)(a)]

  • wildlife kept in captivity must be provided with adequate and appropriate care, facilities and services to ensure their safety and general welfare [s.5(1)]

  • wildlife kept in captivity must be provided with a daily routine that facilitates and stimulates natural movement and behaviour [s.5(2)]

  • wildlife kept in captivity must be kept in compatible social groups to ensure the general welfare of the individual animals and of the group and to ensure that each animal in the group is not at risk of injury or undue stress from dominant animals of the same or a different species [s.5(3)]

  • a pen or other enclosed structure or area for wildlife kept in captivity must be of an adequate and appropriate size ... (a) to facilitate and stimulate natural movement and behaviour [s.6(1)(a)]

  • a pen or other enclosed structure or area for wildlife kept in captivity must have, ... (c) surfaces and other materials that accommodate the natural movement and behaviour of each animal in the pen or other enclosed structure or area; [s.6(2)(c)]
It goes on, there are 25 different occurences of the word "appropriate" and 11 of the word "adequate" in the full regulation, all which may as well be read as 'good enough' or 'whenever human bounds of tolerance are met'. Let's not kid ourselves - what is really meant by this entire regulation is 'what is economically-tolerable to their human-keepers, and does not cause immediate and obvious physical suffering to the animals'.

(b) The Modern Debate

Not surprisingly, the issue of human-animal co-existence has occured before. Biologists openly consider and study symbiotic relationships between different species of animals, with humans only one species amongst them.

Biology recognizes three main types of symbiosis: mutualism, commensalism and parasitism. This linked article starts out with these definitions:
Mutualism is where both organisms benefit, commensalism is where one benefits but the other organism isn’t harmed, and lastly, parasitism is where one organism benefits and the other is harmed.
With some animals our symbiotic relationship is mostly mutualistic (think pet or working dogs, less so pet cats) - ie. they chose to be with us. With others it is openly and unabashedly parasitic - think all species of agricultural animals, who for the most part are slaughtered industrially when it suits their human owners.

It's in our current relationship with captive wild animals that there is active change and human debate. With them our symbiosis is at best commensalism and at worst, parasitism. No wild animal wants a mutualistic relationship with humans - and if they did they would no longer be 'wild', they would be tamed (which, through prolonged captivity and socialization, does sometimes happen).

Given that we are prepared to ethically tolerate industrial-level slaughter and parasitism in our relationship with animals, we should not be so self-deceiving as to use such overly-liberal and Disney-esque language as we have seen in the PAWS 'Standards of Care' regulation. We shouldn't deceive ourselves that 'welfare' is anything other than physical at best in the PAWS world. Simply, wild animals would vote with their feet if not for being surrounded by high fences.

So, aside from agricultural animals - where the debate is largely being superceded by science with plant-based meat - the ethical debate is largely being played out with animals kept in zoos, roadside zoos and as privately-owned exotic 'pets' (hereafter referred to as 'exotic animals').

It is on this topic here in Ontario - where there are only limited and piecemeal laws [ie. some municipal by-laws, and Ontario's Fish and Wildlife Conservation Act (FWCA) regarding zoos for native wild animals] banning or regulating exotic animals, and where lions, tigers and boa constrictors are openly owned and publically displayed - that we must address the PAWS debate.

(c) Where Should PAWS Go?

The primary legal realization we should - and in fact can - take away in this debate is that, as with most western culturally-based humans, we do generally recognize that animal suffering should be minimized. As the Criminal Code of Canada puts it: "Every one commits an offence who ... (a) wilfully causes or, being the owner, wilfully permits to be caused unnecessary pain, suffering or injury to an animal or a bird" [CCC 445.1(1)].

Consequently, if we can't avoid interference with the lives of wild animals altogether, we should only tolerate parasitism when 'necessary'. As for 'mutualism' versus 'commensalism', we should strive for mutualism - what may be called voluntary symbiosis (ie. they don't vote with their feet, but voluntary stay around). We have had this with true 'pets' for hundreds, perhaps thousands of years - transferring the status of working dogs and mice-catching cats to one of mutual affection and co-existence today.

Modern day exotic 'pet-keeping' on the other hand is an affectation created by the affluence of modern day life: ie. "an unnatural form of behavior meant especially to impress others" [Merriam Webster]. God knows we don't have any lack of knowledge on how to care for cats and dogs as suits their desires, but leopards and alligators are a different thing. We should not tolerate these affectations any further, not with the bizarre and unnatural dangers and cruelties that they can create.

Canadian law at the Supreme Court level [114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town) (SCC, 2001)], drawing on well-known international law, has addressed this need 20 years ago - with the precautionary principle:
31 The interpretation of By-law 270 contained in these reasons respects international law’s “precautionary principle”, which is defined as follows at para. 7 of the Bergen Ministerial Declaration on Sustainable Development (1990):
In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
Canada “advocated inclusion of the precautionary principle” during the Bergen Conference negotiations (D. VanderZwaag, CEPA Issue Elaboration Paper No. 18, CEPA and the Precautionary Principle/Approach (1995), at p. 8). The principle is codified in several items of domestic legislation: see for example the Oceans Act, S.C. 1996, c. 31, Preamble (para. 6); Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33, s. 2(1)(a); Endangered Species Act, S.N.S. 1998, c. 11, ss. 2(1)(h) and 11(1).

32 Scholars have documented the precautionary principle’s inclusion “in virtually every recently adopted treaty and policy document related to the protection and preservation of the environment” (D. Freestone and E. Hey, “Origins and Development of the Precautionary Principle”, in D. Freestone and E. Hey, eds., The Precautionary Principle and International Law (1996), at p. 41. As a result, there may be “currently sufficient state practice to allow a good argument that the precautionary principle is a principle of customary international law” (J. Cameron and J. Abouchar, “The Status of the Precautionary Principle in International Law”, in ibid., at p. 52). See also O. McIntyre and T. Mosedale, “The Precautionary Principle as a Norm of Customary International Law” (1997), 9 J. Env. L. 221, at p. 241 (“the precautionary principle has indeed crystallised into a norm of customary international law”). The Supreme Court of India considers the precautionary principle to be “part of the Customary International Law” (A.P. Pollution Control Board v. Nayudu, 1999 S.O.L. Case No. 53, at para. 27). See also Vellore Citizens Welfare Forum v. Union of India, [1996] Supp. 5 S.C.R. 241. In the context of the precautionary principle’s tenets, the Town’s concerns about pesticides fit well under their rubric of preventive action.
PAWS has already made it's legislative choice by excluding agricultural and hunted animals from the application of it's 'distress' provisions [PAWS 15(4,5)] and excluding agricultural animals from it's 'standards of care' [PAWS 13(2)], but pet exotics are still to be decided. With the precautionary principle, the undeniable direction of Canadian society and law - at least insofar as animals are part of the environment (can anyone deny that?) - is to strive for either no symbiosis, or at least the 'highest level' of ethical symbiosis than we as humans can tolerate.

That means mutualism over commensalism. That means as much as possible, and certainly for 'unnecessary' purposes, that we favour animal voluntarism in our relationship with all of the animals that we involve in our lives.

It's simple really: let them go, if they come back it was mutualism all along. Returning to reality though, it's pretty much dog and cats and a few others - the rest we need to leave alone.

How does the precautionary principle translate into the most species subject to PAWS-law? It's simple: distinguish animals that we have a long-standing mutualistic relationship with (eg. dogs, cats and similar) - which we allow and regulate our relationship with, and categorize all others as either PAWS-prohibited or restricted (with individual 'authorizations'). This is the PAWS version of the precautionary principle: when in doubt, be conservative in terms of animal welfare.

Animal advocates call this 'positive-listing': ie. if it's not on the list, it's prohibited. Negative-listing is what PAWS is set-up for - ie. listing lions as prohibited after one eats a 10-year old. Positive-listing can still be salvaged in PAWS (thankfully, everything can still be 'prescribed').

Are we in doubt as to whether animals share in our enthusiasm for the human-version of symbiosis? Undeniably. Any animal that requires ten feet of fencing, or that you must approach with safety gear to minimum your personal risk of being slashed to death, gives you reasonable cause for doubt about whether the animal is truly invested in your relationship.

By this standard, the upshot with PAWS is that we can fairly say that it is a statute 'in denial of itself'. For lack of a more plausible explanation, it seems that the province is afraid of it, and this explains their ignoring it in substance since it's inception. Where it will go now no one knows, but where it should go is pretty clear.


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