Canadian Lawyer

18 N O V E M B E R / D E C E M B E R 2 0 1 8 w w w . c a n a d i a n l a w y e r m a g . c o m D o lawyers have an ethical obligation toward animals? Should they attempt to represent animals in legal actions against negligent, neglectful or cruel owners? Should they argue that nonhumans be given legal standing before the courts? The answer depends on how you resolve an existential issue. Is an animal a person or is it just a thing, a piece of property, no different from, say, a dining room chair? René Descartes, the 17 th -century French philosopher, thought animals were nothing more than complex machines. Was he right? Look your cat in the eye before you answer. Martha Nussbaum is an esteemed American philosopher. She has written recently, in The New York Times, "We humans are very self-focused. We tend to think that being human is somehow very special and important, so we ask about that, instead of asking what it means to be an elephant, or a pig, or a bird. This fail- ure of curiosity is part of a large ethical problem." Self-focus, adds Nussbaum, is a form of narcissism. Does this narcissism obscure the ethical obligations of humans L E G A L E T H I C S DEFENDING ANIMALS By Philip Slayton Animals have no standing in Canadian courts, but that does not mean they shouldn't toward fellow living creatures and prevent law- yers and the justice system from giving those creatures their legal due? Shadow is a horse. His Oregon owner treated him very badly, eventually pleading guilty to criminal neglect. Shadow, given a new home and disingenuously renamed Justice, became a plaintiff in a civil negligence action against his former owner. Justice sought US$100,000 in damages to fund a trust that would ensure his care. The 2018 suit (Justice v. Gwendo- lyn Vercher) was filed on behalf of Justice by something called the Animal Legal Defense Fund. The ALDF said the claim "simply weaves together two uncontroversial, well-established legal principles: first, that animals are properly considered the victims of animal cruelty crimes, and second, that victims of crimes have a right to sue their abusers in civil court for damages for injuries caused by the defendant." In September, an Oregon county circuit court dismissed Justice's case. It said: "The court finds that a non-human animal such as Justice lacks the legal status or qualifications necessary for the assertion of legal rights and duties in a court of law. . . . There are profound implications of a judicial finding that a horse, or any non- human animal for that matter, is a legal entity that has the legal right to assert a claim in a court of law. . . . Perhaps an appellate court would come to a different conclusion if it wades into this public policy debate involving the evolution of animal rights. . . . Or the Oregon Legislature could balance the public policy implications of the relief sought by Justice and craft legislation that would grant an animal the right to sue in its name for specified damages in specific instances such as a situation like this where the animal has been abused and suffered injury as a result." The whole problem was obviously too much for the county court judge. Let an appellate court or the legislature decide. Justice, with the help of the Animal Legal Defense Fund, has appealed to the Oregon Court of Appeal. Lucy is an elephant. She has lived in an Edmonton municipal zoo since 1977. She is the only elephant in the zoo. In 2011, animal advo- cates, acting as plaintiffs, sought a declaration on behalf of Lucy that the City of Edmonton was in violation of the Alberta Animal Protection Act. They wanted Lucy moved to a zoo in a warmer climate, where there were other elephants to keep her company. Their application was reject- ed (Reece v. Edmonton), principally for lack of standing. "No private individual," said the judge, "can bring an action to enforce the criminal law." @philipslayton O P I N I O N DUSHAN MILIC

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