Canada is often considered one of the more progressive and socially conscious countries. However, this does not extend to all aspects of its laws. Its legislation prohibiting animal cruelty is often viewed by animal welfare advocates as antiquated and narrow. Organizations such as the Canadian Federation of Humane societies have denounced the Canadian Criminal Code provisions as “Victorian” and have pointed out that the standard of “willful neglect” can make it very difficult to prosecute cases of animal neglect (Federal Legislation, Canadian Federation of Humane Societies, available at http://cfhs.ca/law/federal_legislation/).
Currently, animal cruelty laws in Canada can be found under the three main levels of government: federal, provincial and municipal. The federal government is the only level of government empowered to enact criminal laws, while provinces are empowered to create regulations and delegate regulatory responsibilities to municipalities (VI. Distribution of Legislative Powers, Constitution Act, 1982, R.S.C. 1985, App. II, No. 44, Sched. B, Pt. VII, s. 91, available at; http://laws-lois.justice.gc.ca/eng/const/page-4.html). Provincial regulations can carry imprisonment and fines similar to federal criminal laws, however, convictions under provincial laws will not end up on a criminal record (What is a criminal offence in Canada? Pardon Services of Canada, available at https://pardonservicescanada.com/blog/what-is-a-criminal-offence-in-canada). At the time of infraction, a police officer can lay charges under either provincial regulation or federal criminal law, which will be confirmed by a prosecutor if the government chooses to proceed with charges. In general animal cruelty laws at the provincial level are broader and stronger although both federal and provincial provisions neglect wildlife protections. (Provincial Legislation, Canadian Federation of Humane Societies, available at http://cfhs.ca/law/provincial_legislation/).
This paper will first discuss Canadian animal cruelty law and how animal cruelty is charged at the federal level. The paper then outlines prosecution of animal offenses at the provincial level, distinguishing how the culture and economy of the various regions affect animal welfare. An examination of case law based on animal cruelty prosecution shows how Canadian courts have interpreted the federal legislation. Finally, the paper compares the Canadian and US system of animal cruelty prosecution to illustrate the differences in how each country approaches animal cruelty legislation and consider the benefits of both approaches.
II. Federal laws
Federal animal cruelty laws in Canada were originally enacted in the Canadian Criminal Code in 1892. Since this time, several attempts have been made to amend the original formulas of these pieces of legislation with limited success (History of the Amendments, Canadian Federation of Humane Societies, available at http://cfhs.ca/law/history_of_the_amendments).
The current federal legislation under Canadian Criminal Code sections 444 to 447 includes both indictable and summary charges for animal cruelty. Section 444 deals specifically with cattle holds responsible anyone who: “kills, maims, wounds, poisons or injures cattle; or places poison in such a position that it may easily be consumed by cattle." Criminal Code, R.S.C. 1985, c. C-46, s. 444. Section 445 is similar to S. 444 and holds responsible anyone who: “kills, maims, wounds, poisons or injures dogs, birds or animals that are not cattle and are kept for a lawful purpose; or places poison in such a position that it may easily be consumed by dogs, birds or animals that are not cattle and are kept for a lawful purpose.” However, S. 445 also provides a litany of additional offences including, “wilfully causes or, being the owner, wilfully permits to be caused unnecessary pain, suffering or injury to an animal or a bird.” Criminal Code, R.S.C. 1985, c. C-46, s. 445. Section 445.1 provides that “Everyone commits an offence who wilfully causes or, being the owner, wilfully permits to be caused unnecessary pain, suffering or injury to an animal or a bird.” Criminal Code, R.S.C. 1985, c. C-46, s. 445.1.
Section 446 deals specifically with animal transportation and finally S. 447 deals with cock fighting. Criminal Code, R.S.C. 1985, c. C-46, s. 447.
Offences under s.445, s.445.1 and s.446 are electable offences under the criminal code, meaning that the prosecutor can proceed by indictment or by summary charges depending on the nature of the offence. Upon conviction of an indictable offence, individuals are liable to imprisonment for a term of not more than two years. If convicted of a summary charge, individuals are liable to a fine not exceeding five thousand dollars or to imprisonment for a term of not more than six months or both. Criminal Code, R.S.C. 1985, c. C-46, s. 445.1 and Criminal Code, R.S.C. 1985, c. C-46, s. 445. Notably, animal laws in federal legislation have been included under a section entitled “Part XI – Wilful and Forbidden Acts in Respect of Certain Property." Criminal Code, R.S.C. 1985, c. C-46. This classification fails to recognize animals as “sentient beings” and rather treats them as personal property. This is also problematic when considering cruelty to wildlife or any animal that is not “possessed” in the same way companion and agricultural animals usually are.
III. Provincial Laws
Not only can certain animal offenses be prosecuted under federal law, but provincial governments have regulations that can proscribe penalties for animal cruelty and mistreatment. The provinces are empowered to make animal-cruelty an offence by virtue of the Provincial Offences Act R.S.O. 1990 (Provincial Offences Act R.S.O 1990 c.P.33. s. 2, available at, http://www.ontario.ca/laws/statute/90p33#BK1). In general, all provincial legislation with regard to animal protection and animal cruelty are similar (one exception being the Northern provinces, see below). Each of these provinces can impose strict penalties for violations of the respective acts and unlike their federal counterparts, many refrain from placing animals in strict “property” categories. Another difference between provincial and federal animal laws is that provincial laws do not specify a mens rea component where as federal criminal must do so. As mentioned above, these offences are not criminal, rather they are regulatory offences. Sections 92(14) and 92(15) of the Constitution of Canada gives provinces the power to control the administration of justice in the province and to impose “punishment by fine, penalty or imprisonment.” However, it should be noted that there is a breadth of case law that deals strictly with whether or not a province has exceeded their its Constitutional powers and encroached on the “criminal law power” of the federal government (see for example Rio Hotel Ltd. v New Brunswick (Liquor Licensing Board)  2 S.C.R. 59 (S.C.C); Rotman, Elman, Gall, (2008) Constitutional Law Cases, Commentary and Principles, 1st Edition, Thomson Carswell, Toronto ON, pg. 405-434). It should be noted that prosecutors could elect to charge under both provincial and federal simultaneously for the same offence. This is a discretionary call and varies from jurisdiction to jurisdiction.
Many provinces make it an offence to cause an animal to be in distress. Distress can result from depriving animals basic needs including food, water and hygienic shelter, or causing pain and/or neglect. In most provinces, there is a provision that exempts veterinarians acting within the course of treatment from the penalties for causing pain or distress to animals. Similarly, there are provisions that protect or give immunity to officers acting within the authorization outlined in the legislation.
Most of the provinces have similarities in the ways that they deal with animal cruelty, however, the differences that do exist can be explained by any multitude of factors. For example, provinces with a strong economic backing from the agricultural animal business may have more penalties dealing specifically with agricultural animals. Population and robustness of the companion animal population within the province also play roles in the articulation of animal cruelty legislation (this is especially true when comparing provinces such as Nunavut and Ontario). For simplicity sake, the various regions of Canada have been analyzed separately below.
A. Central Canada
Ontario and Quebec are the two most densely populated provinces in Canada and this is reflected in their animal cruelty laws which generally show a large concern for companion animals (Table: Population by year province and territory, Statistics Canada (2014) available at, http://www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/demo02a-eng.htm). In Ontario, the province has legislated Ontario Society for the Prevention of Cruelty to Animals Act (OSPCA), R.S.O. 1900, c.O.36 which has been amended as recently as 2009. The OSPCA Act contains a number of regulations aimed at improving animal welfare and preventing animal cruelty. In particular sections 11.1- 11.3 delineate a standard of care for animals and provide prohibitions relating to distressing and harming animals through animal fighting or other means. R.S.O. 1990, c. O.36, s. 11.1-11.3. Moreover, it empowers agents of the OSPCA to act to prevent harm and intervene in situations where the agents believe an animal is in distress. R.S.O. 1990, c. O.36, s.12. The Act also provides a section dedicated to penalties for the violation of enumerated sections. The penalties can range from a $1000-$60,000 fine to 30 days and up to two years imprisonment depending on the violation. R.S.O. 1990, c. O.36, s.12.
Proposed Quebec Legislation concerning animal protection would follow in the footsteps of other provincial legislation by confirming that animals are not property but sentient beings capable of pain and suffering. Reports on the legislation say it would impose strict penalties including fines between $250 and $250,000 for first time offenders and jail time sentences for up to 18 months. (Quebec bill calls animals 'sentient beings' and includes jail time for cruelty, June 5th 2015, available at http://www.fcc-fac.ca/en/news/2015/Jun/33368318.html). This would be a significant increase in penalty when compared with current penalties for animal cruelty in Quebec. Current animal cruelty laws in Quebec have been enacted under the title Animal Health Protection Act. This act seems to exclusively pertain to domestic or farm animals and does not address penalties for individuals that abuse or inflict pain on wildlife, although this is a general theme throughout Canadian animal protection legislation. (“Animal Health and Protection Act” R. S. 1964, c. 126, s. 2, available at, http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/P_42/P42_A.html) Current penalties vary significantly for different violations, however the top fine would amount to $75,000 with the lowest penalty equaling $250. As mentioned previously, the proposed legislation would include jail sentences, which would be a new addition to Quebec animal cruelty penalties.
B. Western Regions
In Western Canada, the province of Manitoba has an act entitled The Animal Care Act which was assented to in 1996. Animal Care Regulations- Man. Reg. 126/98 (Animal Care Act). It provides similar regulations as found in Ontario with slightly lower penalties depending on the offence. Manitoba legislation states that a first time offense can result in a fine of not more than $10,000, or to imprisonment for a term of not more than six months, or both; and for a subsequent offence, to a fine of not more than $20,000, or to imprisonment for a term of not more than 12 months, or both. Part 7-General Provisions, Animal Care Regulations-Man. Reg. 126/98 (Animal Care Act).
Saskatchewan enacted the Animal Protection Act in 1999. The Animal Protection Regulations, 2000 — R.R.S., c. A-21.1, Reg. 1 (Animal Protection Act, 1999). It follows the same general format as the Ontario and Manitoba legislation and imposes similar penalties for violations of the provisions therein. The Animal Protection Regulations, 2000 — R.R.S., c. A-21.1, Reg. 1 (Animal Protection Act, 1999).
Alberta legislation entitled the Animal Protection Regulation is primarily geared toward livestock. It largely addresses permissible acts concerning the treatment of livestock. Animal Protection Regulation — Alta. Reg. 203/2005 (Animal Protection Act) Alta. Reg. 203/2005, s. 1. This is likely due to the fact that Alberta has a thriving cattle and beef industry and therefore it is imperative that these animals are well protected. (See generally, http://www.albertabeef.org/) However, the Animal Protection Act of Alberta provides protections for animals that “are not human beings." It makes causing animals distress an offence punishable by up to a $20,000 fine and possible restrictions against future owner ship of animals. “Offense,” Animal Protection Act, R.S.A. 2000, c. A-41, s.12. Likewise, British Columbia legislation titled Prevention of Cruelty to Animals Act makes it an offence to cause an animal to be in distress and imposes a fine of up to $75,000 and/or a jail sentence of up to two years for any individual, the highest penalty in all provincial legislation dealing with animal cruelty, who commits an offence under the act. "Penalties”, Prevention of Cruelty to Animals Act, R.S.B.C. 1996, c. 372, s. 24.1. Both British Columbia and Ontario have high fines and prison penalties and occupy the 3rd and 1st spots for most densely populated provinces respectfully. (Table: Population by year province and territory, Statistics Canada (2014) available at, http://www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/demo02a-eng.htm).
C. Maritime Provinces
The Maritime Provinces also have several pieces of Animal related legislation. Newfoundland and Labrador legislation entitled Animal Health and Protection Act was assented to in 2010. The Animal Health and Protection Act is unusual in that it provides provision such prohibitions on ear cropping, unless it occurs in the course of an accepted activity. It also specifically prohibits certain types of securing apparatus:
24. (1) A person shall not permit an animal to be hitched, tied or fastened to a fixed object where a choke collar or choke chain forms part of the securing apparatus.
(2) A person shall not permit an animal to be hitched, tied or fastened to a fixed object by means of a rope or cord tied around the animal's neck.
Animal Health and Protection Ticket Offence Regulations — Nfld. Reg. 34/12, s.24(1).
Other maritime provinces, including Prince Edward Island, Nova Scotia and New Brunswick, also have animal protection legislation. Prince Edward Island specifically includes wildlife in their definition of animals under the Animal Health and Protections Act and under some provisions also includes eggs and embryos. Animal Health and Protection Act, S.P.E.I. 1988, c. 11. The Animal Protection Act of Nova Scotia defines the word “animal” as any non-human vertebrate. Animal Protection Act, S.N.S. 2008, c. 33. Many of the maritime provinces have similar provisions throughout their legislation although New Brunswick legislation (entitled Society for the Prevention of Cruelty to Animals Act) is notably missing a provision that makes it an offence to cause pain to an animal, which in many provinces has been accounted for under the umbrella of causing “distress” to an animal. Society for the Prevention of Cruelty to Animals Act — N.B. Reg. 2000-4.
D. The Great North
The three northern most provinces and territories of Canada, which include Yukon, Nunavut and the Northwest Territories, differ significantly in their animal legislation from the lower provinces. This is likely due to the fact that these provinces to not have an extensive agricultural industry and are the most sparsely populated areas in Canada. All three areas contain approximately 117,000 occupants based on 2014 census data (Table: Population by year province and territory, Statistics Canada (2014) available at, http://www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/demo02a-eng.htm). Furthermore, being located so far north means that there are fewer species of land animal that are kept for food and therefore, with respect to animal cruelty, the primary animals these provinces are concerned with are dogs (See generally, Yukon, Northwest territories, Nunavut, Agriculture and Agri-food Canada, http://www.agr.gc.ca/eng/industry-markets-and-trade/canadian-food-eatcanadian/where-to-find-canadian-foods/yukon-northwest-territories-nunavut/?id=1392216500676). For instance, the Nunavut Dog Act provides protection only for dogs as the name suggests and has fines that are significantly lower than their southern counterparts. Proven contravention of any provision in the Dog Act can result in a summary conviction to a fine not exceeding $25 or to imprisonment for a term not exceeding 30 days. Dog Act (Nunavut), R.S.N.W.T. 1988, c. D-7, s. 13.
The Northwest Territories has two pieces of animal legislation, the first titled Herd and Fencing Act and the second the Dog Act. The Herd and Fencing Act provides very little in the way of animal protection and is primarily concerned with regulating animal importation and agricultural practices. (Herd and Fencing Act, R.S.N.W.T. 1988, c. H-2, available at http://www.canlii.org/en/nt/laws/stat/rsnwt-1988-c-h-2/latest/rsnwt-1988-c-h-2.html). Similar to the Nunavut Dog Act, the Northwest Territories Dog Act contains provisions pertaining only to dogs. It also contains identical penalties for violations of the Dog Act of Nunavut. R.S.N.W.T. 1988, c. D-7, s. 25.
The province of Yukon has the most stringent penalties for animal cruelty in the northern parts of Canada under the Animal Protection Act and also contains provisions that protect a broader selection of companion animals when compared with the respective Dog Act legislations of both the Northwest Territories and Nunavut. R.S.Y. 2002, c. 6.
IV. Municipal Bylaws
Many municipalities have enacted by-laws that deal primarily with animal control and regulations for companion animals. Like their federal and provincial counter parts, municipal by-laws largely ignore wildlife animals and provide no penalties for their mistreatment. Municipal bylaws can vary significantly from place to place. (Municipal Bylaws, Canadian Federation of Humane Societies, available at http://cfhs.ca/law/municpal_bylaws/). However, many cities have enacted by-laws that detail broad responsibilities to care for animals. For example, the City of Toronto specifies that “Everyone person who keeps an animal within the City’s boundaries shall provide the animal, or cause it to be provided with, adequate and appropriate care as may be required to meet the need of the species.” The by-law then goes on to specify what is meant by adequate or appropriate care, which include adequate food and water. The City of Toronto has specified a fine of not more than $5000 for any conviction of an offence under the Toronto Municipal Code Chapter 349 on Animals. Toronto ON, Toronto Municipal Code §349-27 (2013) http://www.toronto.ca/legdocs/municode/1184_349.pdf.
Other larger municipalities such as Vancouver British Columbia and Calgary Alberta have similar by-laws with varying penalties (Vancouver BC, Animal Control Bylaw 9150 (2012) http://vancouver.ca/your-government/animal-control-bylaw.aspx; Calgary AB, Responsible Pet Ownership Bylaw, 23M2006, (2014) available at http://www.calgary.ca/CA/city-clerks/Documents/Legislative-services/Bylaws/23M2006-ResponsiblePetOwnership.pdf). Municipalities looking to draft by-laws pertaining to animal regulation and animal care can refer to the Canadian Federation of Humane Societies website which gives detailed model animal by-laws. (Municipal Bylaws, Canadian Federation of Humane Societies, available at http://cfhs.ca/law/model_municipal_bylaws/).
Some progressive municipalities have considered regulations that recognize that the stray and abandon pet problems stem from purchase of animals that have not been sterilized or animals that have been raised in an unhealthy way. These regulations would include restrictions on sale of animals. In Richmond British Columbia, drafted by-laws would restrict the sale of dogs and puppies in pet stores which would aim help curb down puppy mill production. (Municipal Bylaws, Canadian Federation of Humane Societies, available at http://cfhs.ca/law/municpal_bylaws/).
V. Canadian Case Law
A. Problem of Mens Rea and Lawful Excuse
Canadian case is sparse when it comes to Animal Cruelty case law, however there are a few cases worth mentioning. As noted previously, it can be difficult to prosecute Animal cruelty cases under the current legislation, especially given the “willful” mens rea requirement present in the majority of the provisions. In R v Shand 2007 ONCJ 317 (CanLII), the court examined the necessary elements required to established the “willful” mens rea component:
Section 429 of the Criminal Code sets out a definition of “wilfully” applicable to these alleged offences. Under s.429, the Crown must show that
- the accused caused the event alleged
- by act or omission
- knowing that the act/omission would probably cause the occurrence of the event
- reckless as to whether it occurs or not…
See R v Shand 2007 ONCJ 317 (CanLII).
On a charge under s.446(1)(a), there is also a statutory presumption of wilful causation where there is a failure to exercise reasonable care, subject to “evidence to the contrary”:
Evidence that a person failed to exercise reasonable care or supervision of an animal or a bird thereby causing it pain, suffering, damage or injury is, in the absence of any evidence to the contrary, proof that the pain, suffering, damage or injury was caused or was permitted to be caused wilfully or was caused by wilful neglect, as the case may be.
See R v Shand 2007 ONCJ 317 (CanLII).
Therefore, in animal cruelty cases in which charges are laid under the criminal code, there is a rebuttable presumption that if the prosecution can prove that:
- Failure to exercise reasonable care
- Pain and suffering or injury
- Causation of pain and suffering, then the perpetrator will have been deemed to have acted willfully.
R v Shand 2007 ONCJ 317 (CanLII).
In R v D.L., the phrase “wilfully and without lawful excuse” found in s.446 was at issue. In this case, two individuals were charged under s. 445(a) s.446 (1)(a) for killing a cat after the cats’ owner told them to “get rid of it” which they took to mean kill it. The judge in this case found that having permission to kill an animal was not a sufficient “lawful excuse” and did not lawfully give the authority to cause unnecessary pain and suffering to the animal. Both individuals were convicted. R. v. D.L., 1999 ABPC 41 (CanLII).
B. Progress by the Courts
R v Menard has been called the “most authoritative” criminal law case in Canadian case law. The accused in this case had a business, which euthanized animals by use of motor exhaust with caused pain and burns to the mucous membranes of the animals he was euthanizing. In a decision written by future Canadian Supreme Court Chief Justice, Lamer J. overturned a decision from the lower courts and reinstated the original conviction. R v Menard, 1978 43 C.C.C. (2d) 458, Que. C.A. However, what makes this case particularly important is Lamer’s remarks on the human animal relationship:
… [I]n setting standards for the behaviour of men towards animals, we have taken into account our privileged position in nature and have been obliged to take into account at the outset the purpose sought. We have, moreover, wished to subject all behaviour, which would already be legalized by its purpose, to the test of the “means employed”. Thus, para. (a) of s. 402(1) is not only of general application, but normalizes human behaviour from these two points of view: the purpose and the means. While ss. 400 and 401 have been enacted to condemn interference with the rights of the owners of certain animals, s. 402 was enacted for the protection of the animals themselves, including those, who through the interests of their owners, are protected in part by ss. 400 and 401.
More recently the Supreme Court of Canada had an opportunity to grant standing to those would wish to advocate on behalf of animals. In Reese v Edmonton, 2011, ABCA 238 (CanLII), (available at http://www.canlii.org/en/ab/abca/doc/2011/2011abca238/2011abca238.html). Reese was attempting to prevail in an action to force the City of Edmonton to relocate Lucy, a 36-year-old Asian elephant to a warmer location with many elephants for her to socialize with. The Supreme of Canada refused to grant standing to Reese and therefore the case was dismissed. Reasons for the dismissal were not provided. By refusing to hear the case, the Supreme Court effectively barred courts from reviewing the well being of animals. Simply put, Lucy’s well being is not a matter of public importance meriting judicial review. Canadian Courts in general seem reluctant to comment on animal cruelty laws and, as evidenced by Reese, perpetuate the ideology that animals are less important beings (Opportunity Lost: The Supreme Court Misses a Historic Chance to Consider Question of Public Interest Standing for Animal Interests, 30 Windsor Y.B. Access to Just. 129).
VI. American Animal Cruelty Laws v. Canadian Cruelty Laws
Structurally speaking, the American and Canadian Criminal Law systems differ significantly. In the United States, individual states legislate their own criminal laws, which amounts to 50 separate criminal code systems. The federal government can also legislate certain criminal laws, but only in so far as the Constitution allows (Podgor et al., Criminal Law, Concepts and Practice (2009) 2nd Edition, Carolina Academic Press, Durham North Carolina, pp.49-50). There are no American federal laws that deal directly with animal cruelty. However, the federal government of the United States is empowered to enact laws outside of the criminal law power and has enacted Animal Law legislation in its other capacities. The Animal Welfare Act (AWA), enacted in 1966, is not itself broad anti-cruelty law, but instead deals with specific activities that effect specific animals. Currently the AWA deals with a number of areas including dog and cock fighting, animals in research labs and the breeding and whole distribution of some mammals, among other topics (Favre David, Animal Law, Welfare, Interests and Rights (2008) Wolters Kluwer, Aspen Publishers, Frederick MD, pp.364-5 [Animal Law]). In general, however, issues involving welfare of companion animals (cats and dogs primarily) are dealt with at the state level.
The US federal system also does little to regulate animals used in food production. In 1958, Congress enacted the Humane Slaughter Act, which provides guidelines for slaughter of agricultural animals but curiously excludes poultry, though it does include cows and pigs. 7 U.S.C.A. § 1901- 1907. However, any change to the Act to include poultry will likely be met with extreme opposition as the poultry industry has grown significantly in size and scope over the past 40 years (Animal Law, at pp. 301). Federal criminal statutes involving wildlife typically involve only certain categories of species like endangered or threatened animals or certain species of animals (marine mammals or eagles, for example).
The common law in the United States, like Canada, has developed into an extensive statutory-based system of law enacted by legislatures. These statutes have been tailored to the problems that each state faces. However, there is a basis for uniformity among the states. The Model Penal Code (MPC) was developed by the American Law Institute in 1962. It provides standard criminal laws that have been widely influential in state criminal codes. States are not bound to follow the MPC, rather the legislature can choose to adopt provisions into their criminal codes (Podgor et al., pp.49-50). The Model Penal Code provides the following with regard to Animal Cruelty:
Section 250.11. Cruelty to Animals.
A person commits a misdemeanor if he purposely or recklessly:
(1) subjects any animal to cruel mistreatment; or
(2) subjects any animal in his custody to cruel neglect; or
(3) kills or injures any animal belonging to another without legal privilege or consent of the owner.
Subsections (1) and (2) shall not be deemed applicable to accepted veterinary practices and activities carried on for scientific research.
(Model Penal Code §250.11 (Proposed Official Draft 1962), available at http://www.law-lib.utoronto.ca/bclc/crimweb/web1/mpc/mpc.html))
The mens rea standards of “purposefully or recklessly” are broader than the mens rea standards provided in Canadian Criminal laws. The addition of the reckless standard indicates that individuals charged under Model Penal Code provisions can be held accountable for their actions even if the individual did not intend a certain outcome. In this case, the fact that the individual was pursuing a course of action while consciously disregarding the potential outcome of the action gives rise to a substantial and unjustifiable risk which can be prosecuted under the Model Penal Code (Model Penal Code (Proposed Official Draft 1962), available at http://www.law-lib.utoronto.ca/bclc/crimweb/web1/mpc/PART1/snippets/mental.htm). Canadian federal laws do not currently give the option of charging a person with this type of mens rea.
States are not obligated to follow the model penal code and in most cases the state will combine their own common law with the model penal code to develop a unique criminal code in every state (Podgor et al., pp.49-50). As mentioned above, the federal government of Canada is the only level of government empowered to enact criminal statutes while the provinces are empowered to enact regulatory statutes that can result in similar penalties to the federal criminal laws but will not result in a criminal record for the convicted perpetrator.
At a municipal level, governing bodies are empowered to create anti-cruelty/standard of care legislation that can mirror the state criminal legislation. For example, Sec. 6-4-1 of the Municipal code of Detroit Michigan makes it a violation to fail to “provide proper food, water, shelter or sanitation to rabbits, domestic fowl, poultry, or any other animal” (Detroit, MI, Municipal Code, s.6-4-1, Ord. No. 04-04, § 1, 1-30-04, available at https://www.municode.com/library/mi/detroit/codes/code_of_ordinances). While this particular municipal code does not make it a violation to treat animal cruelly, it does mimic the standard of care that is provided within the corresponding Michigan criminal statute which provides the following with respect to cruelty:
(2) An owner, possessor, or person having the charge or custody of an animal shall not do any of the following:
(a) Fail to provide an animal with adequate care.
(b) Cruelly drive, work, or beat an animal, or cause an animal to be cruelly driven, worked, or beaten.
Mich. Comp. Laws Ann. § 750.50.
At first blush, the U.S. and Canada may appear to be similar in their approaches to animal cruelty laws simply because they share a three-tiered structure. The US, with its strongly held states’ rights approach, has given states the ability to tailor their laws. While most US states now follow a similar approach in prosecuting cruelty with a misdemeanor-felony structure, Canada leaves the enactment of criminal animal cruelty laws to the federal government. Ultimately this key difference results in disparities between the countries; as a general rule, however, both systems could be more proactive in preventing animal cruelty.
In short, constitutional prohibitions in Canada mean that the provinces cannot create criminal laws. A few provinces have taken considerable steps towards strengthening the penalties for animal cruelty and mistreatment. Despite this, most would agree that the Canadian Anti-cruelty laws still leave much to be desired in terms of enforcement. The United States differs significantly in the way that it handles criminal laws and allows States more control over animal cruelty laws. Municipal in both countries by-laws play a small role in animal protection but are often lacking in penalties. While great strides have been made, in order for animal protection to become adequate in both countries, legislation needs to be broadened and penalties strictly enforced.