There is a common belief in our society that animals are protected under the law. The truth is that animals are treated as property in our legal system, so any protection is very limited and only applies to a very limited extent for some animals. When it comes to performing animals however, their situation is unusual, since they are always traveling and are never in the same jurisdiction for very long. There are no laws in Canada that specifically address the many problems that are unique to performing animals.
Overview of Legislation
There are two primary kinds of Canadian legislation that enforcement agencies can use when the question of animal suffering arises. The first is the Criminal Code of Canada, which has two sections dealing with cruelty to animals. The laws in the Criminal Code apply across the country.
The second kind of legislation that somewhat addresses animal suffering is provincial legislation which establishes the provincial SPCA, or otherwise addresses animal protection or welfare. Each province’s laws are different in this regard.
Unfortunately, both the Criminal Code and the various provincial laws deal with animal cruelty in a retroactive fashion – punishing only certain kinds of harmful behaviour after they have occurred. They do little to prevent suffering from occurring in the first place. There are a range of problems with all of these laws that prevent them from effectively protecting performing animals.
Both the provincial animal protection laws and the Criminal Code are not useful for dealing with animals in circuses and traveling shows for a number of reasons. Beyond being punitive, rather than preventative, the offences are very limited, any punishment is minimal and any fines given could just be seen by circus owners as one of the costs of doing business.
The circus industry also claims their animals are afforded additional protection under international treaties like the Convention on the International Trade in Endangered Species of Flora and Fauna (CITES), but these do not contain any animal welfare provisions and offer no protection to performing animals used in circuses and traveling shows or to any animals at all.
There is one way however, that local municipalities can help to protect performing animals under the law. By establishing by-laws that prohibit the use of wild and exotic animals in circuses and traveling shows, municipal governments can protect their citizens, while simultaneously taking a stand against the animal suffering that is inherent in this industry.
The Criminal Code of Canada
The Criminal Code contains all of Canada’s criminal laws, including two sections meant to address cruelty to animals. These provisions are very modest in scope, most of them dating back to 1892. When it comes to animals suffering in circuses and traveling shows, the problem with respect to the law is not that there are one or two isolated incidents that could be the subject of particular charges. Criminal laws are meant to address specific incidents. Criminal laws however, are not the way to address institutionalized practices that are widespread within a particular industry. In circuses and traveling shows that use performing animals, the problem is not that in one particular case, one particular animal was struck by his or her trainer. The problem is the whole way of life that is imposed upon all of the animals all of the time.
Provincial Animal Protection Legislation
Provincial animal protection legislation is not an effective manner of addressing the problems common to the keeping of wild and exotic animals as performers. The Ontario Society for the Protection of Cruelty to Animals Act, for example, provides the authority for humane societies to assist animals in certain circumstances. OSPCA agents and inspectors are authorized to take certain actions in respect of animals that are determined to be in ‘distress’. The fact that OSPCA powers only come into force once an animal is suffering is one of the many limitations inherent in our current legal approach to animals.
Another serious problem is the fact that animal abuse often happens behind the scenes where there are no witnesses to report it to the authorities. Since circuses are constantly moving, it is also very difficult to investigate a complaint, lay a charge and prosecute before the company has moved on.
The Convention on the International Trade in Endangered Species of Flora and Fauna (CITES) affects the trade in certain species of flora (plant life) and fauna (animal life) in Canada and elsewhere. CITES establishes a permitting system which seeks to control the international trade in certain wild animals and plants or their parts and derivatives. Canada has passed its own legislation to implement CITES; the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (WAPPRIITA). Neither CITES nor WAPPRIITA addresses the conditions under which animals that are lawfully brought in to a country must be kept.
Animals that were caught in the wild prior to the ratification of CITES by Canada (1975), such as the majority of elephants in circuses and traveling shows, are typically exempt from CITES rules, as are most captive born animals. Circuses generally have to obtain import and/or export permits to travel with members of endangered or threatened species, but the procedure is generally a rubber stamp process and the information supplied with the permit application is not usually verified by an independent party. Some CITES permits are valid for considerable periods of time (i.e. years), leaving the owners or custodians of the animals to move them across borders at will.
Due to the limited way our current federal and provincial laws deal with the animal cruelty that occurs in circuses and traveling shows, the most effective way for a local government to control and govern the treatment of animals in circuses and traveling shows in their municipality (while simultaneously protecting their community from the inherent public health and safety risks that arise from the keeping of these animals in urban environments), is to enforce local by-laws that prohibit performing animal acts in their jurisdictions.