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Dog and Cat Control Law (Ontario)
(November 2008)

Chapter 9 - Cat Law


  1. Cats, Humans and the Law
  2. Cat Welfare Law
    (a) Overview
    (b) Criminal Code
    (c) Present OSPCA Cat and Dog Breeding Provisions
    (d) Bill 50
  3. Cat Control Law
    (a) Overview
    (b) By-Laws and Pounds
    (c) Pound Procedures
________________________________________


1. Cats, Humans and the Law

This chapter is about the law of 'cats', 'cats' being the particular type of cats which many people in the world keep as companion animals [felis domesticus or felis catus], or care for as rescued animals. While I have located this chapter in the larger legal Guide: "Dog and Cat Control Law (Ontario)", I have also included or referenced in it law relating to cat 'welfare' and anti-cruelty, so that the chapter may be treated as an free-standing guide to 'Cat Law'.

Cats don't [seem] to have 'law' in the same sense that we do - being a formalized rights-determination process. Perhaps law as we know it requires the development of an elaborate language, which cats also seem to lack.

Therefore, 'cat law' (such as it is) is entirely a human invention, and it is dominated by human categories of understanding, hierarchy and priority. The net result is that the area of human law that has been most applied to cats is that of property.

In this raw sense animals have been treated under the common law primarily as the 'chattel' property of humans - indistinct from clothes, tables and books.

This is not to say that our legal treatment of cats is entirely self-centred. Human morality (such as it is) has - despite its overwhelmingly instrumental approach to other animals - asserted itself in our interaction with cats and other animals in the form of anti-cruelty and animal welfare laws.

However the approach of the English common law has been generally to divide animals into the two categories of 'domestic' [mansuetae naturae] and 'wild by nature' [ferae naturae]. The former are those that are tamed and thus tend not to escape, and they are almost always the property of the human that keeps them for food, labour, trade or companionship purposes.

'Wild' animals on the other hand are typically native animals that are possessed of a greater degree of common sense, and which try to escape if they are captured by humans. Under the common law they are treated generally as the property of the land-owner on which they are found [think Robin Hood and the King's deer]. Today, wild animals are sometimes made state property under statute, or otherwise become the property of the person that lawfully kills them (as by hunting) [eg. Alberta's Wildlife Act s.7,8].

When they are human-kept their legal property status is usually fairly plain, subject to the normal gamut of human property disputes that can arise.

On the other hand, 'feral cats' - being cats which were once domestic but have now 'gone wild', and their offspring - straddle both the wild and the domestic legal categories. Were they native North American species (which they are not) they would no doubt flow seamlessly back into the 'wild' category such as a pet raven might if it escaped or was set free, and fall under the governance of Ontario's Fish and Wildlife Conservation Act - which is essentially a hunting and fishing regulation law.

But when our former companion cats go feral they fall into a largely unique legal realm which they share in large part with feral dogs, although dogs have been more heavily regulated due to their greater potential for harming humans and their interests (eg. food animals such as cattle).

In this chapter, I explaining cat welfare law [s.2] and cat control law [s.3]. The status of feral cats and their advocacy will be the subject of a later essay, which will be posted off the homepage of this Isthatlegal.ca Dog and Cat Control Law (Ontario) Guide.


2. Cat Welfare Law

(a) Overview

For legal welfare and anti-cruelty purposes, cats fall into the same general category as most animals. The primary law offering any degree of 'protection' to them was embodied in the cruelty and related provisions of the Criminal Code. Being criminal provisions, they are of course enforced only by prosecution, and their enforcement suffers due to the low importance generally accorded them by busy crown attorneys. Recent amendments to these provisions [Bill S-203] incresed penalties only, and did little to address systemic problems with the structure of the law.

Additionally, the present OSPCA Act offers some limited 'minimum standard' care and treatment provisions governing the breeding of cats and dogs for sale, these provisions are also solely prosecutorial in nature and have received little enforcement attention.

As many readers may be aware, the pending Bill 50 (awaiting third reading at the date of writing), is set to change this situation significantly at least at the Ontario level.

While most of the below is - or will be - subject of more detailed Isthatlegal.ca treatment in other Guides, I summarize each of these areas of 'cat welfare' law in turn below.

(b) Criminal Code

Another Isthatlegal.ca animal law Guide, Animals and the Criminal Law (Canada), discusses this topic at length. Here I just identify and describe the specific offence provisions that might apply to cats, and give a brief overview of related defence and procedural law.

The offences that can involve cats are:
. 'Kept' Non-Cattle Animals and Birds

Killing, maiming, wounding, poisoning or injuring [non-cattle] animals that are kept for a lawful purpose. Subject to a 'lawful excuse' defence.

. General Cruelty

Causing, of being the owner and allowing, unnecessary pain, suffering or injury to animals.

. Fighting and Baiting

Encouraging, aiding or assisting at the fighting or baiting of animals. 'Baiting' here does not mean putting food out, but rather a specific form of fight entertainment popular in Victorian times.

. Poisoning

Administering poisonous/injurious substances to domestic animals or captive wild animals. Subject to a 'reasonable excuse' defence.

. Injury During Transportation

By neglect causing damage or injury to animals or birds while being conveyed.

. Abandonment or Inadequate Care

Being the owner or custodian of an animal, either abandoning it in distress or failing to provide it with adequate food, water, shelter and care.
The 'mens rea' (mental or intentional element) applicable to most of these offences is that of "wilfulness", which I summarize as 'high recklessness'.

Further, most of these offences are subject to a 'colour of right' defence, which is discussed at length in the above linked Guide - and may in fact be legally incoherent in any event.

Maximum penalties for the above offences vary, but range from $5,000 fine and six months in jail, to five years in jail. In practice most convictions result in penalties much lower than these maximums.

(c) Present OSPCA Cat and Dog Breeding Provisions

For the time being, until the Bill 50 amendments come into force, the present Ontario Society for the Protection of Animals Act [OSPCA/A] mandates the following minimum care standards for commercial breeders respecting a "cat or dog that is being kept for breeding purposes or for sale" [OSPCA/A s.15.1]:
  • adequate food and water;

  • adequate medical attention when sick, injured or in pain or suffering;

  • adequate protection from the elements;

  • safe transportation;

  • enclosures must:

    - be of an 'adequate' size
    - be sanitary
    - have adequate ventilation
    - provide the animal with exercise oppourtunities
    - not combine animals that pose a danger to another
    - be in good repair
    - not be dangerous to the animal's health or well-being.
If a conviction is registered the court may also order that the defendant be prohibited from engaging in the breeding of cats and dogs for a specified period or for life.

Much of the effect of the above provisions is reduced by the conditioning of most of the duties with the term "adequate" - an inherently vague term. The effect is to make most prosecutions a prolonged 'duelling experts' battle over what is and isn't adequate, generally-accepted practices in the trade, etc.

(d) Bill 50

This area of law, at least in Ontario, is about the undergo significant advancement with the pending passage of Bill 50 [the Provincial Animal Welfare Act], amending the existing OSPCA Act [including those provisions listed in (c) above]. The name of the main act is deceptive in that it suggests that the amendments will only supplement and expand pre-existing OSPCA authority - this is not the case. Bill 50 is a wide-ranging, effectively free-standing animal welfare law which may have broad application outside of OSPCA activities as well.

The law creates two broad areas of animal protection: positive care duties for owner/custodians, and negative prohibitions against causing or allowing "distress" for all persons.

"Distress" is defined as:
... the state of being in need of proper care, water, food or shelter or being injured, sick or in pain or suffering or being abused or subject to undue or unnecessary hardship, privation or neglect;
There are a variety of exceptions for veterinarians, agricultural uses, hunting/fishing - and more which will be elaborated in yet-to-be-issued regulations. Most of the exceptions will not apply to cats.

Like the previous 'commercial breeder' provisions, these are enforced by prosecution - not administratively or through any licensing regime. Maximum penalties for the main offences are $60,000 fine and/or two years in jail.

Once Bill 50 is passed into law and its regulations are issued, I will prepare and post a full "Animal Welfare Law (Ontario) Guide".


3. Cat Control Law

(a) Overview

Most of the other chapters in this "Dog and Cat Control (Ontario)" Legal Guide considers cats jointly with dogs in relation to protecting the human interests respecting nuisance, and personal and property safety. Within these laws cats are really bystanders to the main event, which is the human/dog relationship. The most recent and vivid verification of this of course is the 2005 Ontario pitbull ban, which no doubt many readers will be familiar with.

'Control law' as it applies to cats is a stripped down version of that which is applicable to dogs [of course, none of the complex Dog Owners' Liability Act provisions apply], and I summarize the cat situation below with appropriate references to other Isthatlegal.ca chapters.

The cat situation may be understood by examining two main legal sources: applicable municipal by-laws and the Animals for Research Act ["ARA"].

(b) By-Laws and Pounds

As is discussed in Ch.3 ["Pounds, Shelters and Research"] (which serious readers should read fully), a pivotal definition in this area of law is that of the "pound", being the facility that seized dog and cats are kept in. I use the term "pound" as distinct from the term "shelter", the latter not being a legal term. The "pound" definition reads [ARA s.1]:
"pound" means premises that are used for the detention, maintenance or disposal of dogs or cats that have been impounded pursuant to a by-law of a municipality or the Dog Owners' Liability Act, but does not include any premises, or part thereof, that are not used by any person or body of persons, including the Ontario Society for the Prevention of Cruelty to Animals or any society affiliated therewith, for the detention, maintenance or disposal of dogs or cats so impounded;
The key concept at work here is that an animal is not a "pound" animal unless it has been incarcerated "pursuant" to authority under either the Dog Owners' Liability Act [DOLA] or under a municipal by-law. Cats, being cats, do not of course come under DOLA - so essential to determining the status of any impounded cat is your locally-applicable by-law.

For present purpose, and because of its population significance, I refer throughout the balance of this section to the City of Toronto's Animals by-law [c.349]. This by-law includes the following provisions:
s.349-19
The Medical Officer of Health may take possession of and impound any cat found at large where:

A. In the opinion of the Medical Officer of Health and the owner of the property, the cat is deemed to be causing damage or creating a nuisance; or

B. In the opinion of the Medical Officer of Health, the cat is in distress, injured and/or unidentifiable.
Essentially, the above Toronto example reflects a 'nuisance' standard. It differs from similar dog provisions in that stray dogs are more likely to be assumed to be both a nuisance and a general safety risk, and also a risk to themselves (ie. from traffic). Such cats may be, if irretrievably injured or ill, euthanized without the consent of the owner [s.349-20(A)].

Local by-laws may often be accessed online, and may always be obtained through your local municipal clerk. By-law provisions respecting animals are not always consolidated in one by-law, so checking with the clerk for all applicable by-laws is prudent.

Such cats, if they have been impounded 'pursuant to a by-law', fall into the ARA pound procedures (following).

(c) Pound Procedures

The pound procedures, discussed more fully in Ch.3, s.4: "Pounds, Shelters and Research: Dogs and Cats in Pounds" [again, serious readers should read that section], provide for the following sequential procedures:
i. Efforts to Find Owner

If the cat "has a tag, name plate or other means of identification", then the pound must [ARA s.20(4)]:

- notify the nearest OSPCA office or affiliate (unless of course the pound itself is that),

AND

- "take all reasonable steps to find the owner of the dog or cat", who they shall 'forthwith' notify of the impoundment.

ii. Redemption and Redemption Periods

The pound must hold the animal for a minimum period of time, during which the owner may attend to 'redeem' it (ie. get it back), "subject to the payment of such damages, fines and expenses as are required by law" [ARA s.20(5)]. During this time the cat may not be destroyed - subject to exceptions for owner consent, and compassionate euthanasia if irremedially ill or injured.

The 'minimum' redemption period established under the ARA is three days [s.20(1)], although the law allows municipalities to extend this time by by-law [ARA s.20(2)]. For example, the City of Toronto extends it to a "minimum period of five days" [c.349-20B].

Rules for counting time require that the day of the seizure be excluded [for more on counting time see Ch.3, s.4(c)]. Note that these are minimum times, so the pound is free to exercise their discretion to keep the animal longer.

Note that this is a very political area of law, and municipalities have widely varying 'leniency' policies, some having 'adoption-only' policies.

iii. On Expiry of Redemption Period

When the redemption period expires, the pound operator has three discretionary options. They may [ARA s.20(6)]:

- redeem the animal back to the owner (as above, as though the period had not expired);

- sell or gift the animal (or hold it for the same in future) as a pet [this essentially means adoption];

OR

- sell it for research use.

Sometimes the exercise of this discretion is limited by de facto local policies. For example, Toronto will not send an animal for research. Research sale is discussed in further detail in Ch.3, s.5: "Pounds, Shelters and Research: Research Use".
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