Animals gaining legal rights

Animals are getting closer to have legal rights recognised by our courts.

When this happens, it will have a big impact on condominiums as it may become more difficult to ban a pet cat or dog if they are not a threat to human health or property.

Pet-free residental condos may evenually go by the wayside. We will have to see how far the courts will go but so far it looks like the animals are on the path to greater rights of life and freedom from cruel and unnecessary pain, suffering and death.

Does the cat have to go?
In the Alberta case Condominium Plan No. 762 1302 v Stebbing, 2014 ABQB 487
, the judge ruled:

[21]   "The 15-day provision in the bylaw (to remove a pet) should be reserved for extreme cases. It may be difficult to place a pet. If a new home cannot be found, this would, at the very least, impose a burden on the Edmonton Humane Society. I take notice of the fact that all too often it amounts to a death sentence, as pets who are not placed by the Edmonton Human Society are euthanized."

The judge added the following to the Notes:
"One needn’t go back to the time of Pharoahs, as some have done, to find first principles (eg. Bizon v Bizon, 2014 ABCA 174 (CanLII) at para 37 per Wakeling JA).

Animals were first treated as a species of property by the common law, which, in the western tradition is probably biblical, (eg. Genesis 1:26). Then there was the modification of the common law by ‘enacted law’; a process evident in what Holdsworth describes as the ‘Age of Reform (1835-1875)’ in England, (A History of English Law, Sir William Holdsworth vol. XV) and which continued after confederation in Canada.

An overview of the transition is thoughtfully set out in the dissenting judgment of Fraser CJ in Reese v Edmonton (City), 2011 ABCA 238 (CanLII).

Animals might not yet have rights in the conventional sense, or standing to intervene, but the very least that can be said is that their status is evolving. And given the dissent of no less a voice than the Chief Justice of Alberta, their status remains, as some have said, a gray area, and a large one at that."

Part of the Dissenting Reasons for Judgment Reserved of The Honourable Chief Justice Fraser, from the case cited above, includes:

B. Consequences of Alberta’s Animal Welfare Legislation 
Four key points may be drawn from Alberta’s animal welfare legislation. First, the legislation reflects public policy and the felt need and importance of protecting animals in this province. Why are the rights of animals important in our society? Animals over whom humans exercise dominion and control are a highly vulnerable group. They cannot talk – or at least in a language we can readily understand. They have no capacity to consent to what we do to them. Just as one measure of society is how it protects disadvantaged groups, so too another valid measure is how it chooses to treat the vulnerable animals that citizens own and control.
Second, while animal rights in this province are not at the end of the spectrum advocated by some, the Alberta Legislature has nevertheless accorded animals the protection of certain rights. In doing so, the Legislature has balanced the interests as between humans and animals as considered appropriate and made a number of policy choices. This is its decision to make. Having done so, it falls to the executive branch of government to ensure that those rights are actually enforced in accordance with law.
Third, since the rights adopted for the benefit of animals are limited, courts should not diminish the full import of animal protection laws by creating unnecessary barriers to those seeking to ensure compliance with them. Animals, including Lucy, cannot commence lawsuits on their own to protect themselves. They must rely on humans to give voice to the truly voiceless. Thus, courts should take a generous, not impoverished, approach to the grant of public interest standing for those attempting to enforce the restrictive animal rights that do exist.
Fourth, the animal welfare legislation is not simply for show, to assuage our collective conscience, promising much but delivering little. There is no principle of law inviting or compelling this result. Instead, this legislation should be given a large, liberal interpretation to ensure it fulfills the Legislature’s intention. With respect to the Act and Regulations, that aim is clear. The overarching purpose is to protect animals – not their owners.
Zoo orangutan, Sandra, entitled to legal rights, Argentine court rules, clearing way for possible release
Almudena Calatrava, Associated Press
December 22, 2014

BUENOS AIRES, Argentina — An orangutan that has lived 20 years at the Buenos Aires zoo is entitled to some legal rights enjoyed by humans, an Argentine court has ruled, a decision the ape’s attorney called unprecedented and a ticket to greater freedom.

The ruling comes a month after a local animal rights group filed a habeas corpus writ in favour of Sandra, who was born in Germany but has lived in captivity in Buenos Aires most of her life.

“Following a dynamic … judicial interpretation, it is necessary to recognize that the animal is subject to rights, and should be protected,” said the Dec. 18 ruling, published Monday by the official judicial news agency.

Andres Gil Dominguez, who represented the orangutan, said the “unprecedented” ruling paves the way for the habeas corpus rights to be accepted by the courts and for Sandra to be released at a sanctuary.

“It sets a precedent that changes the paradigm of animal guardianship and will impact their rights. … It will lead to a lot of discussions,” Gil Dominguez told The Associated Press.

“From this ruling forward … the discussion will be whether captivity in itself damages their rights.”

Earlier this month, a New York appeals court ruled that a chimpanzee is not entitled to the rights of a human and does not have to be freed by its owner. The three-judge Appellate Division panel was unanimous in denying “legal personhood” to Tommy, who lives alone in a cage in upstate Fulton County.

A trial-level court had previously denied the Nonhuman Rights Project’s effort to have Tommy released. The group’s lawyer, Steven Wise, told the appeals court in October that the chimp’s living conditions are akin to a person in unlawful solitary confinement.

Wise argued that animals with human qualities, such as chimps, deserve basic rights, including freedom from imprisonment. He has also sought the release of three other chimps in New York and said he plans similar cases in other states. But the mid-level appeals court said there is neither precedent nor legal basis for treating animals as persons.

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