Roger writing the LAWmag
01
Feb 2014

In The Absence Of Effective Animal Law, Technology Can Help

Animal law, according to some observers, in on the cusp of some major reform.  Rochelle Duhaime, an animal rights and animal welfare enthusiast and law student at Laval University Law School in Quebec City, believes that the whole world of law needs a shakeup when it comes to animal rights.

The real problem is that animals are treated by the law as mere property of their so-called owners,” says Ms Duhaime. “It’s stone-age law and a mystery to me that the law would continue to assume that animals are mere things, to the civil law, 'movables' as to the common law, 'chattels'. Animals are sentient beings according to the most recent science. As that has been, historically, the rational for denying animals inherent rights, the time for reform of the law is upon us.”

Animals = Property?

In any event, reform of animal law, whether it comes slowly through court decisions or from legislative assemblies, does not seem imminent. In the meantime, all animals remain property indeed, as animals have been characterized by the law from time immemorial. The common law itself, as was the case with Roman law, developed within medieval and primarily rural, farming society in which animals played a large part. Then, animals were used for essential services, transportation, personal security, wool and food;  companionship being just one of the many purposes of animals. Now, factory farm conditions and medical research represent the most contentious misuse of animals.

puppy's plea for a bit of lawThe mere concept of a branch of law distinct to animals was unheard of until recently.

But never, anywhere, has the law taken that giant leap of granting animals inherent rights. See, for example, Pet Lawyer: The Amazing Antoine Goetschel. In 2014, animal law still reflects the law as it is put foreword in dusty old property law books: that an animal is a moveable in the civil law and a chattel in the common law. The animal is the personal property of its owner and other than basic property law and some criminal law protection against the cruelty against animals (see Animal Cruelty Law) what happens to the animal does not attract the attention of the courts.

Stolen Animals

One of the biggest problems of an animal being mere property in the eyes of the law occurs when an animal is stolen. To protect against this, historically, farm owners have taken to branding their animals with a hot iron with a distinctive symbol. Now, cattle is also tagged by puncturing a hole in the cow, sheep, pig or horse’s ear, not unlike an ear piercing on a human.

Arguably, if an animal owner is ready to step into a cage with a lion and a hot iron and cajole, as in 'Here kitty cat!' the lion over for a quick little hiss on the big cat's butt, and survive the encounter, then, and only then, ought they be certified to brand other animals. And to show their license to brand, they ought to show their right butt upon which would be burnt a government decal of qualification. Then, they can speak with authority on branding being relatively painless and quick.

Governments actually still encourage red-hot iron branding. Many maintain official manuals of branding symbols. The Government of Montana even has an smart phone app for 'livestock branding' stating proudly that:

"Branding is one of the oldest and best ways to permanently identify livestock. It serves as an excellent safeguard against livestock theft, loss or dispute."1

The Livestock Identification Service, an agency reporting to the government of Alberta, helpfully suggests that

"(P)revent the animals from moving as much as possible. This can be done by using a cattle squeeze or manually wrestling them to the ground....When an iron is the right temperature, it takes three to five seconds to apply a brand to cattle with a light hair cover.... If the iron needs to be applied a second time, apply it in the exact position of the first design."2

Modern Technology

Jessica Mills, who runs Adopt a Paw Pet Haven Inc. based in Saskatoon, Saskatchewan, travels the western seaboard rescuing dogs from animal shelters and finding them good homes in Canada.  Mills recommends that animal-owners take advantage of modern technology and have their animal implanted with a identification microchip.

animal microchipAccording to the Ontario SPCA:

"Animal microchips are about the size of a grain of rice and are typically implanted by a vet just beneath the surface of the skin between the shoulder blades. The process is similar to receiving vaccination through a needle and is painless to pets."

Painless? Again, whoever suggested that has not had the needle in his/her neck. However, the pain must be relatively low.

According to Ms Mills, the cost is less than $50. There are even GPS-enabled models available but at greater cost. She continues:

“The police are reluctant to intervene in an animal theft case because they see it as a mere property dispute and often reduce it to a she-says-he-says investigation. I’ve heard that this happened even once when the true owner showed up at the thief’s door with the police and there in the window was the micro-chipped dog, whining to be with its true companion.

”The real problem is that even if micro-chipped, the police will tell the owner that unless the alleged-thief cooperates, they can’t demand to scan the animal to confirm ownership, without a warrant."

Mills says that she has seen situations where micro-chipped animals have been stolen and the police can only direct the true owner to sue in Court for the return of their asset, a process, she correctly points out, that can take months. Animal thieves do not always keep the animal but often sell it so by the time of a trial, the animal may have been moved on to successive owners, making retrieval unlikely.

Sometimes, though, as she has also experienced, the police have managed to speak to the thief who, if she or he equivocates as to whether or not the animal is their’s, talks them into allowing a scan, with the result that the dog is returned to its rightful owner. The true owner can sometimes catch a break if the thief is stupid enough to put the dog up for sale in some kind of public forum such as Craig’s List and exposing the animal to a scan. But the potential for using that publicity to effect a vigilante sting operation, having the animal identified or returned to its real owner depends entirely on the owner being aware of the advertisement, and conning the seller to expose the animal to a scan, a highly uncertain state of affairs.

Ms Duhaime says that even if the police do not scan, the SPCAs will as will most vets and if there is a discrepancy between the stated owner and the microchip registration, they can raise this. And that animals are sometimes trafficked online for research, breeding and:

"... and, saddest of all, sold for bait dogs for dog fighting."

branded livestockMills says that the successful return of a domestic animal to its true owner after a theft is the exception rather than the rule. Comparatively speaking, if a child is stolen, a whole city shuts down, aka an Amber Alert. Mills is not suggesting that this happen when a cat or dog is stolen but she would want a police officer to be able to demand a scan where ownership of a domestic animal is challenged. This would confirm ownership and give the police excellent evidence of a theft. In those circumstances, the animal would likely be reunited with its true owner, in exchange for some leniency as to charges. In the other event, the animal is long gone into a dark hole of successive owners and effectively lost forever to the true owner.

An interesting twist is when a couple owns a dog and upon separation, dispute ownership of the pet. Oops. Sorry, we meant “guardianship” of the family pet.  That is where, Mills says, you will often see animals dog-napped.

The microchip registration information as to owner could then create a reversible presumption at least of ownership. If there are any judges out there looking to make state-of-the-art family law, this would be a welcome addition not just to family law but also to animal law.

Mills flies back and forth between cities in the USA and her shelter in Saskatoon, picking up rescued dogs in the USA, and finding them good homes in Canada. She usually travels with a dog in a bag under the seat in front of her, and more in the cargo hold. Dog rescue is an imperfect business as one can never be certain of a prospective home. Her shelter neuters or spays all incoming dogs and then looks for a good home. They conduct checks on prospective homes such as requiring a written application, and a reference and home-checks process. And they insert a microchip.

But then, the law takes little notice of the well-being of animals especially since in all farmland jurisdictions on the continent, chicken are in battery cages, and pigs and cows not always humanely treated as they are fattened for the slaughterhouse and, ultimately, our dining tables.

Animal law: a work in progress, to be sure.

REFERENCES:

  • Duhaime.org, Animal Law Dictionary
  • Mills, Jessica, interview February 1, 2014, owner/operator of Adopt a Paw Pet Haven Inc., Saskatoon, Saskatchewan, website at adoptapawpethaven.com. Image of dog re "wittle wittle bit of law" is used with permission of Adopt a Pet Haven but the words were added by Duhaime.org.
  • NOTE 1: Missouri Agriculture Department Website, information retrieved on Feb. 1, 2014
  • NOTE 2: Livestock Identification Services Ltd. of Alberta, information retrieved from the Internet on 1 FEB. 2014 [http://www.lis-alberta.com/brands/applying_iron.aspx].

Unless otherwise stated, the views and opinions in this animal law article are those of the author Mr. L. Duhaime alone, as any errors are his as well.

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