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PAWS (Provincial Animal Welfare Services Act)
Legal Guide
Ch.3 - Standards of Care and Administrative Requirements- Overview
(a) General
(b) Reg 444/19: A 'Void for Vagueness' Festival
(c) The Problem
- Exemptions from Standards of Care and Administrative Requirements
(a) Agricultural Activities Exemption
(b) Veterinarians Exemption
- Basic Standards
- Outdoor Dogs
(a) General
. Locating PAWS in the Legal History of Dogs in Ontario
. Understanding PAWS Dog-Standards Concepts
. 'Kept Outdoor' Dogs Practically Defined
. 'Tethered' Dogs Practically Defined
(b) 'Kept Outdoors' Dog Standards of Care and Administrative Requirements
. Overview
. Shelter
. Housing Pens
. Housing Pen Size
. Food and Water
. Grooming and Nails
. Health
. Contagion
(c) 'Tethering' Dog Standards of Care and Administrative Requirements
. General
. Physical Requirements
. Other Requirements
. Tethering Area
. Time Untethered
- Wildlife in Captivity
- Primates
- Marine Mammals
(a) Overview
(b) AW Committees
(c) AW Plans
(d) Nutrition
(e) Reproduction
(f) Preventative Health Care
(g) Post-mortem examination
(h) Public Contact program
(i) Enrichment and Social Needs
(j) General Enclosure Requirements
(k) Enclosure Water Quality
(l) Environmental Protection
(m) Other Enclosures and Areas
(n) Information management and records
(o) Transfer and Movement
1. Overview
(a) General
There are various 'standards of care' and 'administrative requirements' that must be complied with by the owners/custodians of all animals in their custody or care [PAWS 1(1), 13(1); Reg 444/19 'Standards of Care and Administrative Requirements'].
The standards of care (and administrative requirements) regime is structured into cumulative additional standards as follows [Reg 444/19, s.1(1-4)]:- Basic Standards (all animals) [s.3 "Basic Standards", below]
- Outdoor Dogs [s.3 and s.4 "Outdoor Dogs", below]
- Wildlife in Captivity [s.3 and s.5 "Wildlife in captivity", below]
- Primates [s.3, 5 and s.6 "Primates", below]
- Marine Mammals in Captivity [s.3, 5 and s.7 "Marine mammals", below].
"A requirement that a standard of care be adequate and appropriate or necessary is a requirement that the standard of care be adequate and appropriate or necessary to the specific animal, having regard to its species, breed and other relevant factors" [Reg 444/19, s.1(5)].
(b) Reg 444/19: A 'Void for Vagueness' Festival
Any reader will soon detect my distain for the PAWS legal regime, and the 'standards of care' provisions are no exception to that. They are shot-through with the profound legal sin of 'vagueness' [see the leading case R. v. Levkovic (SCC, 2013)] where the provisions are not sufficiently precise to bear the weight of offence prosecution. Many, if not most, of the 'standard of care' and related provisions will fall under the Charter s.7 [life, liberty and security of the person] 'fundamental justice' defence as void for vagueness.
The old diehard of 'distress' [addressed in Ch.2], while suffering some of the same 'vagueness' legal problems, avoids most of these by being more commonly applied as an administrative standard [see Ch.6], not an offence prosecution [though it can be prosecuted: PAWS 49(2)(a,b)]. The administrative use of the distress standard does not attract the Charter s.7 protections which embody the vagueness defence.
A quick count of this relatively short regulation [Reg 444/19] shows an adjectival festival, with the word 'appropriate' leading with 25 occurences, followed by 'adequate' at 11. Multiple other similar ill-defined descriptors flesh this regulation out to perhaps the most vague I have ever seen, or hope to see.
Imagine prosecuting the 'standard of care' offence of failing to provide a captive primate with "a varied range of daily activities, including foraging or task-oriented feeding methods" [Reg 444/19, s.7(b)] when the defendant testifies on their behalf that they 'threw coconuts in the cage twice a day, in different parts of the cage'. Or a prosecution for failing to provide "shelter from the elements that can accommodate all the animals in the pen or other enclosed structure or area at the same time" [Reg 444/19, s.6(2)(b)] when the defendant testifies that 'they can all huddle behind the same rock at the same time'.
These are the essence of the 'void for vagueness' defence (which is so common and obvious that it well-pre-dated the 1982 Charter of Rights and Freedoms) - ie. provisions so vague that they lack any definite yes/no conviction potential so as to be effectively legally meaningless for offence purposes, and moreover - unenforceable.
The Charter problem is due to all the PAWS offence provisions (both minor and major, see Ch.9 "Offences") being punishable by incarceration, thus bringing the Charter s.7 to bear. While it is possible that the 'standards of care' provisions can be enforced through the administrative penalty provisions (see Ch.10) - which lack the incarceration penalty and thus the Charter s.7 defence - those provisions have (at the date of writing) such profound legal flaws in their own right that they also are legally ineffectual [ie. their 'review' (ie. appeal) provisions lack complementary regulations making them unusuable].
(c) The Problem
I'm being hard on the legislative-drafters of this PAWS regulation. The time-pressured task they were handed during the collapse of the prior OSPCA Act regime was not enviable. And the inherent task of setting 'standards of care' for any one of the species that can come under humankind's dubious care - much less the thousands that do - is practicaly absurd. But with humanity's arrogance in pretending that we can formulate and establish 'humane standards' that would allow those animals to live contentedly under our enforced captivity is simple laughable.
But, profound frustration aside, the basic problem is simply one of complexity, volume and uncertainty. Even if we knew (which we don't) what the thousands and thousands of animal species needed for sustenance, health and comfort in their incredibly varied lifestyles, we would require volume and volumes of regulations to articulate it. We can't, so we end up with such grossly unenforcable gems as: "(e)very animal must be provided with the care necessary for its general welfare" [Reg 444/19, s.3(3)].
2. Exemptions from Standards of Care and Administrative Requirements
(a) Agricultural Activities Exemption
Activities "regarding agricultural animal care, management or husbandry carried on in accordance with the reasonable and generally accepted practices of agricultural animal care, management or husbandry", are exempt from the standards of care and administrative requirements set out in this chapter [PAWS 13(2)].
(b) Veterinarians Exemption
The standards of care and administrative requirements set out in this chapter do not apply to [PAWS 13(3)]:- "a veterinarian providing veterinary care, or boarding an animal as part of its care, in accordance with the standards of practice established under the Veterinarians Act",
- a person acting under the supervision of such a veterinarian, and
- a person acting under the orders of such a veterinarian, but only in respect of what the person does or does not do in following those orders.
3. Basic Standards
The following basic standards apply to all animals [Reg 444/19, s.3]:- Food and Water
Every animal must be provided with adequate and appropriate food and water.
- Medical Attention
Every animal must be provided with adequate and appropriate medical attention.
- General Care
Every animal must be provided with the care necessary for its general welfare.
- Transport
Every animal must be transported in a manner that ensures its physical safety and general welfare.
- Resting and Sleeping Areas
Every animal must be provided with an adequate and appropriate resting and sleeping area.
- General Conditions
Every animal must be provided with adequate and appropriate:. space to enable the animal to move naturally and to exercise;
. sanitary conditions;
. ventilation;
. light; and
. protection from the elements, including harmful temperatures. - Enclosures
If an animal is confined to a pen or other enclosed structure or area:. the pen or other enclosed structure or area, and any structures or material in it, must be in a state of good repair;
. the pen or other enclosed structure or area, and any surfaces, structures and materials in it, must be made of and contain only materials that are,(i) safe and non-toxic for the animal, and
(ii) of a texture and design that will not bruise, cut or otherwise injure the animal; and
. the pen or other enclosed structure or area must not contain one or more other animals that may pose a danger to the animal. - Euthanasia
Every animal that is to be killed must be killed by a method that is humane and minimizes the pain and distress to the animal; an animal’s pain and distress are deemed to be minimized if it is killed by a method that produces rapid, irreversible unconsciousness and prompt subsequent death.
4. Outdoor Dogs
(a) General
. Locating PAWS in the Legal History of Dogs in Ontario
The Ontario legal history of dogs was (and still substantially is) essentially that of municipal nuisance control. The widespread municipal pound systems, the Animals for Research Act (which is as bad as it sounds), and statutory provisions [currently the Municipal Act 2001, ss.103,105] are part and parcel of this history, and of it's present reality.
The operative legal term for dogs that are subject to municipal nuisance control is that of the 'at large' or 'stray' dog. While municipal dog control is as varied in text as the hundreds of animal control bylaws that exist in Ontario today, they all boil down to the lay understanding of a 'loose' dog - free to roam where they chose to - either with or without a legal owner.
It is this legal concept of 'at large' dogs that defines dogs legally in relation to the new Ontario PAWS 'outdoor dogs' law. The PAWS categorization excludes 'at large' (or 'stray') dogs - because all of the 'PAWS-standards' applicable dogs are 'kept' [as per the definition of "kept outdoors": Standards Reg, s.2]. The underlying concept is, quite reasonably, that a dog can't be 'at large' and 'kept' at the same time.
However, not all non-'at large' (or non-'stray') dogs are covered by the PAWS-standards, because (as we shall see below) these laws only apply to 'outdoor' dogs - that is, any dog while it is situated out-of-doors. What we can consider to be 'indoor' dogs - ie. those that are normally only taken outdoors for urination and defecation 'walks', as long as they are less than 60 minutes at a time in duration - are not subject to the PAWS care standards [Reg 444/19, s.4-4.5].
Another feature of a dog being kept outdoors is that of constraint. 'Kept outdoors' can only mean constrained in some fashion (eg. tethered, fenced or similar) outdoors - which is directly contrary to the concept of being 'at large'. This brings us to the other central dog PAWS-standards concept, that of being 'tethered'. "Tethered" is simpler and narrower than the larger concept of 'constraint', and accurately corresponds to what we understand as 'tied up' - with the leash being attached some fixed point [note that the regulatory definition of 'tethered' expressly excludes a leash (or tether) held by a human].
Thoughtful readers will immediately recognize that trained dogs can be (what I will call) 'psychologically-constrained' - that is constrained without direct physical restraint. These are dogs that are either trained, or motivated by preference or fear, to remain physically 'kept'. On this point, note that the PAWS definition of 'tether' plainly means physical constraint (ie. "a rope, chain or similar restraining device").
So we might expect interesting litigation on whether a 'psychologically-kept' dog is "kept outdoors" on the defence argument that: "yes it's outdoors, but it's not kept - it stays because it loves us". Equally interesting litigation can arise in situations of heavily psychologically-trained dogs such as security dogs, guide dogs for the blind and police dogs. Given the depth and range of the human-dog relationship, these and similar PAWS scenarios can be expected to arise in future. I hope that this brief historical background will give us some context by which we can start to grapple with these inevitable complications.
Interestingly, the definition of "tether" does not well anticipate those arrangements where a dog is leashed to a moving point such as a 'pulley run' device - although it is conceivable as a matter of statutory interpretation that such arrangements could be included within 'tethering'.
. Understanding PAWS Dog-Standards Concepts
With amendments to Reg 444/19 ['Standards of Care and Administrative Requirements', or the 'Standards Reg'] in 01 July 2022, PAWS extended it's regulation of dog care to include minimum care standards for what PAWS describes as 'kept outdoors' and 'tethered' dogs.
The two terms are not mutually exclusive, rather 'kept outdoors' dogs are a larger category which also contains 'tethered' dogs. Another way of putting this is that 'tethered' dogs are a sub-set of 'kept outdoors' dogs. Legally, both of these categories are dogs that are 'kept outdoors' by the PAWS definition.
'Kept outdoors' dogs (the larger category) are defined in the Standards Reg as follows:"kept outdoors", in relation to a dog, means kept outdoors continuously for 60 or more minutes without being in the physical presence of its owner or custodian; Dogs, in these circumstances, are covered in the Standards of Care Reg by the following provisions (which are set out in detail below):s.4.1 - Standards of care for dogs that are kept outdoors — general care
s.4.2 - Standards of care for dogs that are kept outdoors — shelter
s.4.3 - Standards of care for dogs that are kept outdoors — tethers
s.4.4 - Standards of care for dogs that are kept outdoors — housing pens
s.4.5 - Standards of care for dogs that are kept outdoors — available area if dog tethered or in housing pen However, if a dog is 'tethered' (the smaller sub-set category) - where a "tether means a rope, chain or similar restraining device that is attached at one end to a fixed object ..." [Reg 444/19, s.2] - then they are also subject to s.4 of the Standards Reg ['Standards of care for dogs tethered outdoors']. That is, a tethered outdoor dog is subject to all of s.4, and all of s.4.1-4.5. The full definition of a "tether" is:“tether” means a rope, chain or similar restraining device that is attached at one end to a fixed object and, for greater certainty, does not include a leash or restraining device that is held by a person. . 'Kept Outdoor' Dogs Practically Defined
As set out above, "kept outdoors, in relation to a dog, means kept outdoors continuously for 60 or more minutes at a time without being in the physical presence of its owner or custodian" [Reg 444/19, s.2]. So these are dogs kept outdoors for anything more than a brief period - and the definition also captures (as a subset) all PAWS-defined outside 'tethered' dogs (since that definition covers dogs tied-up outside, without their people being present, for more than 23 hours within any 24 hour period).
PAWS law respecting this larger category deals with the matters set out above (from Standards of Care Reg s.4.1-4.5), which are - roughly: general care, shelter, tether physical requirements, housing pens and housing-pen/tether areas.
So basically - if you are planning to let your dog out unattended (though not necessarily unconstrained) on a regular basis for more than an hour at a time - you should comply with the below 'kept outdoors' standards.
. 'Tethered' Dogs Practically Defined
'Tethered' dogs are (overwhelmingly) dogs that are permanently tied-up outside - although technically, the PAWS definition would also capture dogs that are tethered outside for prolonged periods, but only occasionally (eg. a family weekend camping get-together).
As mentioned, all 'tethered' dogs are also 'kept outdoor' dogs, so - in addition to the below tethered dog standards, you should also comply with the separate 'kept outdoors' dog standards when your dog is 'tethered' under the PAWS standards.
(b) 'Kept Outdoors' Dog Standards of Care and Administrative Requirements
. Overview
To repeat, 'kept outdoors' dogs are those that are: "'kept outdoors' ... continuously for 60 or more minutes without being in the physical presence of its owner or custodian". This category can include 'tethered' dogs [see (c) below], but statistically most of them will be primarily indoor dogs that are outside for more than 60 minutes a day. Remember, dogs that are outside for less than 60 minutes at a time (eg. brief regular walks) are not subject to these 'standards of care' dog rules.
. Shelter
"A dog kept outdoors must be provided with [Reg 441/19, s.4.1(1)]:. sufficient protection from the elements to prevent the dog from experiencing heat or cold-related distress; and
. access to sufficient shade as may be required by the weather conditions, including sufficient shade to protect the dog from direct sunlight." "Every dog that is kept outdoors must, at all times, have ready access to a shelter that [Reg 441/19, s.4.2(1)]:. is waterproof and provides protection from the elements;
. is structurally sound, stable and free of features that might cause injury to the dog;
. has an insulated roof;
. has a floor that is level, elevated from the ground, and dry;
. has a means of providing ventilation, which may include an open doorway;
. is of a size and design that permits all of the dogs that regularly use the shelter to turn around, lie down with their legs extended to their full extent and stand with their heads held at normal height when all of the dogs are occupying the shelter at the same time;
. has a doorway that is free from obstructions; and
. contains bedding that,
--- is at least three inches thick, and
--- is changed as frequently as necessary to ensure that the bedding remains comfortable and substantially clean, dry and unsoiled." The above [s.4.2(1)], "does not apply to a livestock guardian dog or to a dog that has ready access to a structurally sound building that, at the time, is being used to house livestock" [Reg 441/19, s.4.2(2)]. "'(L)ivestock' means sheep, pigs, goats, cattle, horses, mules, ponies, donkeys or poultry" [Reg 441/19, s.2]. "'(L)ivestock guardian dog' means a dog that [Reg 441/19, s.2]:. is identifiably of a breed that is generally recognized as suitable for the purposes of protection of livestock from predation, and
. lives with a flock or herd of livestock". . Housing Pens
Harkening back to the introductory passages of this section, we spoke of how 'constraint' was integral to the PAWS 'kept outdoors' dog concept. 'Housing pens' are another form of physical restraint, being "an enclosed yard, caged area, kennel or other outdoor enclosed area in which a dog is contained and which is not large enough to provide sufficient space for the dog to run at its top speed" [Reg 444/19, s.2]. The following are the standards of care that apply to such housing pens.
"A dog that is kept outdoors must not be kept in a housing pen if doing so would create an undue risk of distress to the dog" [Reg 444/19, s.4.4(1)]. "A dog that is kept outdoors may only be kept in a housing pen if the housing pen is constructed so that it prevents the dog from escaping and provides reasonable protection from predatory animals or other animals that may harm the dog" [Reg 444/19, s.4.4(2)].
"If more than one dog that is kept outdoors is kept in the same housing pen, the owner or custodian of the dogs must ensure that [Reg 444/19, s.4.4(7)]:. dogs exhibiting aggression to other dogs are not placed with incompatible dogs; and
. a female dog that is in heat or coming into heat is not placed with a male dog." However, "a female dog that is in heat or coming into heat may be placed in a housing pen with a male dog solely for the time required for them to mate if the dogs are in the physical presence of the owner or custodian of one or more of the dogs and that person is monitoring the safety of the dogs" [Reg 444/19, s.4.4(8)].
. Housing Pen Size
"The size of a housing pen for a dog that is kept outdoors must meet the following minimum requirements [Reg 444/19, s.4.4(3)]:. if the dog is under 20 cm in height, the total area of the housing pen must be at least four square metres.
. if the dog is equal to or greater than 20 cm in height but under 40 cm in height, the total area of the housing pen must be at least six square metres.
. if the dog is equal to or greater than 40 cm in height but under 70 cm in height, the total area of the housing pen must be at least 10 square metres.
. if the dog is equal to or greater than 70 cm in height, the total area of the housing pen must be at least 15 square metres. For these purposes "a dog’s height shall be determined by measuring the height of the dog at its shoulder when it is standing at full height" [Reg 444/19, s.4.4(4)]. "If more than one dog is kept in a housing pen, the housing pen must provide at least the space required" above [as per s.4.4(3)] "for the tallest dog kept in the housing pen, plus a minimum of at least 1.5 additional square metres of space for every additional dog that is kept in the housing pen" [Reg 444/19, s.4.4(5)], but "1.5 additional square metres of space is not required for every additional dog that is less than 12 weeks old and that is kept with its mother or substitute mother" [Reg 444/19, s.4.4(6)].
"The area available to a dog kept outdoors that is placed on a tether or in a housing pen must [Reg 444/19, s.4.5]:. be sufficient to ensure that the dog can move freely and engage in natural behaviours;
. be sufficient to ensure that the dog is not required to stand, sit or lie down in excrement, urine, mud or water;
. have distinct areas for both,
--- feeding and drinking, and
--- urinating and defecating; and
. be cleaned as frequently as necessary to prevent an accumulation of excrement, urine or other waste that would pose a risk to the dog’s health, maintain a sanitary environment, minimize the presence of parasites and ensure the health of the dog, using cleaning products that do not pose a risk to the dog." . Food and Water
"Food and water containers used for a dog kept outdoors must be constructed to avoid injury to the dog and to avoid difficulty in accessing food or water" [Reg 444/19, s.4.1(2)].
"A dog kept outdoors must be fed food that [Reg 444/19, s.4.1(3)]:. reflects the dog’s daily caloric and other nutritional requirements;
. is fit for consumption;
. is not spoiled; and
. does not contain dirt, feces, urine or toxic substances." "A dog kept outdoors must have continuous access to water that [Reg 444/19, s.4.1(4)]:. is replaced at least once every 24 hours;
. is not frozen; and
. does not contain dirt, feces, urine or toxic substances." . Grooming and Nails
"A dog kept outdoors must be groomed as necessary to avoid matting of the dog’s coat and the accumulation of ice or mud on the dog’s coat or under the dog’s paws" [Reg 444/19, s.4.1(6)].
"The nails of a dog kept outdoors must be checked regularly and groomed as necessary for the health of the dog" [Reg 444/19, s.4.1(7)].
. Health
"An owner or custodian of a dog kept outdoors must ensure that the health and welfare of the dog is checked daily" [Reg 444/19, s.4.1(5)]. "A dog shall not be kept outdoors if it has an illness or injury that affects the dog’s ability to regulate its temperature or restricts its mobility, unless a veterinarian advises, in writing, that it may be kept outdoors" [Reg 444/19, s.4.1(8)].
. Contagion
"If the owner or custodian of a dog kept outdoors has grounds to believe that the dog is suffering from a contagious disease, or is at high risk of developing a contagious disease, the dog must be kept completely isolated from other dogs and must not have contact with objects, including food and water containers, that are used by other dogs or animals" [Reg 444/19, s.4.1(9)].
Despite the above:. these requirements do "not apply to the extent that a veterinarian advises, in writing, that compliance with these requirements is unnecessary" [Reg 444/19, s.4.1(10)];
. "puppies do not need to be isolated from their mother or substitute mother if they are less than 12 weeks old" [Reg 444/19, s.4.1(11)]; and
. "a dog does not have to be isolated from other dogs that either suffer from the same contagious disease or are at high risk of developing the same contagious disease, and the dog does not have to be prevented from having contact with objects used by those other dogs" [Reg 444/19, s.4.1(12)]. (c) 'Tethering' Dog Standards of Care and Administrative Requirements
. General
As noted above in (a), "'tether' means a rope, chain or similar restraining device that is attached at one end to a fixed object and, for greater certainty, does not include a leash or restraining device that is held by a person." [Reg 444/19, s.2].
. Physical Requirements
"A tether that is used on a dog that is kept outdoors must [Reg 444/19, s.4.3(1)],. allow the dog to move about safely;
. be of a size, type and weight that will not cause the dog discomfort or injury;
. have a swivel that can turn 360° at both,
--- the point where the tether is attached to the dog’s collar or harness, and
--- the point at which the tether is attached to the fixed object;
. be of sufficient length to permit the dog to move at least three metres measured in a horizontal direction from the point at which the tether is attached to the fixed object; and
. be of sufficient condition, and be sufficiently well-attached to the dog and to the fixed object, to prevent the dog from escaping." "A collar or harness used with a tether on a dog kept outdoors must be of a size, type, design and fit that will not cause the dog discomfort or injury" [Reg 444/19, s.4.3(2)].
. Other Requirements
" A choke collar, pinch collar, prong collar, slip collar, head halter collar or martingale collar must not be used with a tether on a dog kept outdoors" [Reg 444/19, s.4.3(3)].
"A dog kept outdoors must not be tethered in a manner that creates an undue risk of distress to the dog, including [Reg 444/19, s.4.3(4)],. distress related to the age, health or reproductive status of the dog; or
. distress caused by objects or hazards that a dog is able to reach while tethered." "A dog kept outdoors must not be tethered if the dog is [Reg 444/19, s.4.3(5)],. under six months of age;
. whelping;
. nursing; or
. in heat." . Tethering Area
"The area available to a dog kept outdoors that is placed on a tether or in a housing pen must [Reg 444/19, s.4.5]:. be sufficient to ensure that the dog can move freely and engage in natural behaviours;
. be sufficient to ensure that the dog is not required to stand, sit or lie down in excrement, urine, mud or water;
. have distinct areas for both,
--- feeding and drinking, and
--- urinating and defecating; and
. be cleaned as frequently as necessary to prevent an accumulation of excrement, urine or other waste that would pose a risk to the dog’s health, maintain a sanitary environment, minimize the presence of parasites and ensure the health of the dog, using cleaning products that do not pose a risk to the dog." . Time Untethered
"A dog tethered outdoors for 23 hours in a 24-hour period, whether those 23 hours are consecutive or not, must be taken off the tether for at least 60 continuous minutes to allow for exercise and enrichment" [Reg 444/19, s.4(1)]. The 60 continuous untethered minutes required must be provided before the dog can be tethered outdoors again [Reg 444/19, s.4(2)].
The above requirements do not apply if [Reg 444/19, s.4(3)]:". the dog has, within the previous 24-hour period, participated in a racing event, hunting event, field trial event or comparable event and requires rest as a result of participating in the event;
. extreme weather conditions identified by a weather warning or watch from Environment and Climate Change Canada, such as a heat warning, would make it unsafe for the dog to exercise or receive enrichment; or
. a veterinarian advises, in writing, that the dog should not be taken off the tether for health reasons."
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