Don't Think about Elephants: Reece V. City of Edmonton
Sykes, Katie, Black, Vaughan, University of New Brunswick Law Journal
--Okay, here's me planting an idea in your head. I say to you, "Don't think about elephants." What are you thinking about?
Lucy is a 36-year-old female Asian elephant who lives at the Edmonton Valley Zoo, (3) owned by the City of Edmonton. Once, when she was a baby, she was free. She was born in Sri Lanka and captured there in 1975 as an orphan less than a year old. (4) She was acquired by the Edmonton Valley Zoo in 1977, and she has been confined there ever since. She is the only elephant in the zoo, and she is the northernmost elephant housed alone in North America. (5)
Concerned citizens, animal organizations and public figures have been advocating for years for Lucy to be moved from the zoo to an elephant sanctuary, where she could live with more space, in a warmer climate, and in the company of other elephants. (6) Advocates for the move argue that Lucy suffers from debilitating physical and emotional deficits caused by the basic unsuitability of life in a Canadian zoo for a very large, naturally far-ranging, and highly social animal. Her problems include respiratory disease, chronic foot problems, obesity from lack of exercise, and social isolation. (7) The zoo's position is that Lucy is well cared for and that moving her would be dangerous because of her respiratory condition. (8)
In 2010 a local animal activist, Tove Reece, together with Zoocheck and People for the Ethical Treatment of Animals, turned to the courts to try to bring about a change in Lucy's situation. Reece filed an application with the Court of Queen's Bench seeking a declaration that the City was in violation of section 2(1) of the Animal Protection Act, which prohibits causing or permitting an animal to be in distress. (9)
Reece's originating notice was struck out as an abuse of process and on the basis that she and the other claimants lacked standing. (10) On appeal to the Alberta Court of Appeal, this decision was upheld. The determinative issue at both the lower court and the Court of Appeal was abuse of process: as the chambers judge wrote, the proceedings were barred by the rule that "no private individual can bring an action to enforce the criminal law." (11) Adopting this reasoning, Slatter J.A., writing for the majority, held that the proceeding fell into a recognized category of abuse of process, "where proceedings are used to enforce or engage punitive penal statutes." (12) The question of standing was treated as subsidiary to this issue.
The Supreme Court of Canada dismissed Reece's application for leave to appeal.
Thinking and Not Thinking About Elephants
The case raised questions about how procedural doctrines like abuse of process and standing limit, and are limited by, the principle of access to justice. These questions are of special importance in cases where unorthodox legal theories are advanced--and where, as in this case, justice is sought on behalf of one of a class of beings against whom the courthouse door has traditionally been barred.
The Reece decision is noteworthy for a lengthy (almost five times as long as the majority reasons) and wide-ranging dissent by Fraser C.J.A. The dissent engages in remarkable depth with questions including the relationship between human beings and animals, the debate over the existence of "animal rights," and the nature and effectiveness of legal provisions for the protection of animals. These matters are gradually gaining more prominence in both scholarly and public debate, but to see them addressed at all in an appellate court decision is surprising, and that they are given such thorough and sincere consideration is little short of astonishing. The only rival worldwide to Fraser C.J.A.'s dissent for engaging at length with the debate and scholarship around animal rights is the decision of the Supreme Court of Israel in its 2003 judgment in Noach v The Attorney General. …