Animal Law[]
Professor Wendy Adams[]
Course Outline
(course outline goes here)
Standing and Interest[]
(Insert Canadian Flag)
- Currently, must have sufficient injury to enforce the legislation (the Animal X Act).
- Has gotten 'surreal' (Adams), b/c some animal defense organisations have begun claiming "informational injury". The problem alleged is that the records are not being kept up to a particular standard. This is creative legal reasoning at its best -- what to argue to get this in court. Also sometimes claim "
- Problem is that the animals have injury but no standing; humans have no injury but standing.
- Animal defense group: cares about "unauthorized experiments"; argues "lack of information" (b/c to authorize an experiment, you need to submit information about the experiments to be conducted). *There is no claim: "I am injured by the experiments personally".
- Why would a lab not bother getting permission for an experiment? Answer: B/c the experiments are not allowed in the first place.
- Must not think that courts are not reasoning properly & thus bringing the legal system into disrepute. Instead, view this as the type of jostling and push-me, pull-me that happens in every contested social territory.
- Distinction between a rights group and a welfare group: Understanding the distinction in terms of how they would use the argument. -- Rights (proper) groups wouldn't care about what the legal system says in the first place, b/c it doesn't recognize animal rights in the first place (Which doesn't prevent welfare groups from using 'rights' terminology).
- US tradition: private interst legislation: private citizens have a private right of action where he does not benefit particularly from enforcing the legislation.
- Ex: ptf argued: I have an aesthetic interest in seeing the animal being well-treated - vs. 'mental anguish' to myself --
Cass Sunstein is syaing: it makes no sense to try to make administrative law doctrines work in animal law. He advocates: enable accredited advocacy groups to bring a claim. We could even impose costs on the plaintiff.
Provision: 55.10 (?) of the Quebec XYZ ANimal protection (?) Act -- In Canada, has not been litigated yet. So it makes a good case study, b/c the US, {Case} has been litigated.
Administrative Law Summary[]
There are 3 branches of the state
- legislative
- judiciary
- executive
Canada/U.S Comparison U.S.: Congress makes laws Executive - appointed Courts - depends.
Canada: Cabinet has a special position, which usually confuses Canadian students Parliament - elected Courts - appointed Ministers -- are elected and so representative of the people -- but are also part of the executive branch, b/c they are appointed by the party in power
Administrative law (Both US & Canadian): affects people's lives & has consequences. On what basis are decisions to be taken.
Cf. Scanlan article: "Carte Blanche for cruelty" -- If it does not meet the decisions set out in the pples set out in these various areas, then what? If Parlt enacts a law saying: "It is the will of the legislator that xyz" (say, dogs have sufficient space to live in). The administrative body (executive branch) is the one which finesses the details of what "xyz" means, often, such as in regulations. But the discretion to carry out the powers of the act has its limits. Cannot just do what it wants. Administrative law determines (or tries to!) what the appropriate leeway is.
Aside:
Judicial Review of Administrative Law means: reasonableness simpliciter vs. reasonableness... --
Point of this: Administrative Law is the area which determines what the exact level of regulation is.
- Private Right of Action vs. Having an Administrative Recourse*: Who enforces?
- Enforcement Body (such as the Régie du Logement in Québec) --> then the Attorney General (rep of the state) will bring the action against the private party (such as R. v. XYZ person)
- Citizens --> there are advantages to getting the individuals in a particular area to police themselves, on the basis of existing legislation (in the US, it's actually called "private attorney general")
But unless you have a private right of action in a particular area, you cannot bring an action. This is a problem in Animal Law, b/c often there is law on the books, but if the enforcement body is the administrative agency, & it is slow to act (funds, interest in the issue, etc.), then no action is taken.
Difference Standing vs. Private Right of action - Standing is procedural: can you be heard to initiate the case? - Private right of action: do you have the right to enforce legislation directly? (that is to say, pursuant to the procedures ensuing out of the legislation Contrast this: - Citizens enforcing the law on their own (private citizens taking the law into their own hands)
Comment: It is easy to draft legislation! (lots of young lawyers in drafting depts drafting legislation). So just coz it's on the books
Quebec Animal Health Act (P-42): The only ones allowed to enforce the legislation are inspectors. - art. 55.9.4 --> the minister responsible for the application of the act is appointed by the Minister for Health & Agriculture. It can also "outsource"/delegate this responsibility to Animal
Complaint in Quebec right now wrt commercial breeding facilities (aka "puppy mills"). Complaint by activists that "Anima Quebec" is not doing its job. (hasn't brought a charge against a single breeder in 3 years).
Administrative Law aspect: has Anima Qubec been "unreasonable in using its discretion" Its reply is that it is limited by funding, etc.
This is a very common problem in Animal Law -- especially b/c animals have no voting power.
Another note about the Act: the first article, as in many other laws, explains its purpose. Here, the aim of the act is (ironically) both to ensure the health of our food AND protect "muffy and fluffy" (pets).
Anima Quebec website: are the standards published on its website "legally enforceable"? Unclear. Anima doesn't say that it applies THESE standards when inspecting. Can one hold the minister responsible for not enforcing the same regulations? What does "may" vs. "must" mean in law?
Comparison to a US area of law with private right of action-type enforcement:
- mechanism = citizen has an incentive to sue other citizen for breach of competition act (saves state enforcement resources (state is not an intermediary here), and gets 3X the usual damages if it is found guilty.
- Contrast this act to the Conservation Act (16 U.S.C.A. $1540) -- here: there is no self-interest
Check out the "Interpretation Act" -- all legislation is enacted for public benefit; therefore all legislation must be interpreted in a large & liberal manner. In competition act -- the interests of the public & the private party are aligned. Compare (in similar direction) to Endangered Species Act: citizens are cooperating w/ the government, by enforcing the standards themselves. There is no interest for the concerned citizen, except the personal concern of the citizen. They can EVEN charge the government for lack of enforcing the act! (in US Conservation Act). Citizen does not have to prove a personal harm from the lack of enforcement; it's about the
Contrast this to Anima Quebec: Has peanuts budget ($150,000/3 years). Anima Quebec can only solicit donations from corporations (so the regulator's salary depends on the regulated industry).
This explains why groups In Quebec, claim against the minister: failure to fulfil a statutory administrative duty. Against Anima Quebec: your decision to exercise your discretionary
Canada has very broad public interest standing (unlike the US, which has Constitutionally-limited public interest standing). So a credible public interest group in this area can usually intervene in a suit.