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The new legal hot topic: animal law
Tuesday, Jul. 15, 2008 Last updated on Tuesday, Mar. 31, 2009 Rebecca Dube: Tuesday's Globe and Mail
'The question is not, 'Can they reason?' " philosopher Jeremy Bentham famously wrote in his 18th-century defence of animal rights, "nor, 'Can they talk?' but, 'Can they suffer?' "
The new question might be: Can they sue?
Animal law classes are the hot new offering at Canadian law schools. The University of Toronto and Queen's University will both start teaching animal law this fall, joining at least six other Canadian universities where dogs and cats are already on the curriculum.
Before you reel at the notion of Rover retaining a lawyer to petition for 10 walks a day or the fish suing the cat for harassment, fear not. It's a serious field of study; even in the U.S., where animal law is more developed and lawsuits are much easier to pursue, courts have not been overrun by frivolous Fido filings.
Some experts compare animal law today to environmental law in the 1970s - just emerging from its reputation as a special-interest niche (with a tinge of left-wing loony) to become a solid discipline that is widely accepted and potentially lucrative for practitioners.
Prominent Toronto lawyer Clayton Ruby favours another comparison: "It's much like gay rights were 25 years ago. People sense this is going to be an area of importance in the future."
Lesli Bisgould, a lawyer who focused on animal-rights law for years, will teach the University of Toronto class. "All of a sudden the tide has turned and people are saying, 'This is important,' " Ms. Bisgould says. "Right now is the birth of this concept in Canada - it's really coming to life."
The concept of animal law is almost as broad as that of "people law," encompassing everything from veterinary malpractice and custody cases (when couples split, who gets the pets?) to more philosophical issues of animal rights and personhood.
Many of these issues are hypothetical right now in Canada. Despite recent efforts to change the law, animals are still legally property in Canada, and the courts have been reluctant to humour would-be petitioners who view their pets like furry children.
Toronto-area plaintiff Christopher Warnica spent thousands of dollars in a legal bid for visitation rights with Tuxedo the mutt after he and his girlfriend split in 2004 - all for naught, as a judge threw out his claim, saying, "This case must end here."
But there have been signs of change. In 2006, Ontario courts awarded emotional damages for the loss of a dog; a boarding kennel that lost a dog while its owners were vacationing in Hawaii was ordered to pay the couple $1,417.12 for pain and suffering.
In 2002, the Canadian Supreme Court considered the status of the "OncoMouse" - a mouse that had been genetically engineered to be prone to cancer for research purposes. Researchers applied for a patent, which raised some interesting philosophical questions. Patents are reserved for things that have been invented: So can one claim to have invented an animal? Is a mouse a thing?
The Supreme Court allowed Ms. Bisgould and Mr. Ruby to intervene in the case on behalf of several animal-rights organizations; Ms. Bisgould says just getting a spot at the table was a big deal. "That was a fundamental moment in the development of animal-rights law in Canada," Ms. Bisgould says. "It was a huge victory just that the court said, 'We agree that the animal-rights perspective is one that has to be heard.' " (The court rejected the patent application, and later approved a much more limited patent for the luckless rodent.)
Post-breakup battles about who should get the dog or cat may not seem to have much in common with lofty debates about the nature of property and consciousness. But they both speak to the question of how, exactly, courts should treat animals, a question that is far from settled in Canada.
"There's this growing recognition that they're not just like a couch," says Daphne Gilbert, an assistant professor who teaches animal law at the University of Ottawa, offered for the first time in 2007. "Animals are treated as property - we buy them and we own them - and yet family law is starting to talk about them as a special kind of property."
Law students say the uncertainty surrounding animal law is one reason why it is so interesting. There are very few Canadian precedents to study in animal law, which is rather ... well, unprecedented.
"That's the excitement, in that a lot of the decisions haven't really been made yet," says Andrew Brighten, a McGill University law student with a clerkship this summer at the California-based Animal Legal Defense Fund. Though he's never considered himself a pet person, Mr. Brighten says he's drawn by the possibilities of animal law. The field appeals to his idealism, too.
"You can really feel good about what you're working on, and that you might be making a real difference," Mr. Brighten says. "Being a lawyer, I suppose, is inherently about representation, and animals are beings who are unable to represent themselves. ... So I think, as a lawyer, it's one of the best jobs you could have."