Canadian Veterinary Medical Association Journal: http://www.pubmedcentral.nih.gov/articlerender.fcgi?artid=1624913
The veterinary profession’s role in policing animal welfare
Terry L. Whiting, Sean C. Brennan, and Gustave C. Wruck
Problem definition
The veterinary profession in North America is undecided on what participatory role it has to play in the evolution of the position of animals in society. On one hand, the Canadian and American veterinary associations have sponsored animal welfare committees and adopted an advocacy role (1,2); on the other hand, individual practitioners continue to equivocate over when and how they should report suspected incidents of animal abuse, animal neglect, or both to the appropriate authority (3–5). This paper discusses the proposal that, as human values relating to animals change, the veterinary profession should assume primacy in the regulatory authority in policing statutes assuring animal welfare.
Background
In democratic societies, laws reflect the broader societal attitudes, which, in essence, parliament and legislatures represent. Current laws to protect animals from suffering are of 2 types: 1) laws where affirmative acts of infliction of suffering are prohibited (prohibition of cruel treatment of animals); and 2) laws that impose an affirmative action; for example, requiring a person to provide a certain level of care for animals. Imposing an affirmative act has always been considered more burdensome and difficult to enforce than prohibiting an action (6).
Law, an articulation of the will of the populace, cannot be expressed without administrative machinery. Bureaucracy generally establishes the relationship between a legally constituted and legitimate authority and its subordinate officials. Police have emerged as pivotal in law enforcement in complex societies. Democratic principle requires the police to be professional, competent, and accountable, as they serve the interests of society. Enforcement requires identifying an offence when it occurs, identifying the offender, and bringing the matter before the judicial system in a way that follows the rules of natural justice. Evaluation of a situation involving animals is complex (7) and demands on police services across many jurisdictions have escalated without a significant increase in base funding, resulting in decreased resources for, inter alia, animal welfare enforcement (8). Public policing in democratic countries is accountable to every citizen through the mechanism of representative government and budget constraints. If law enforcement powers are totally divested to a self-funded or special interest group in the extreme application of private policing, there is a risk of vigilantism and encroachment on civil rights in a free democratic society.
Animal protection law made major strides in the mid 1800s in Britain and North America. In early animal protection legislation, the primary societal attitude was concern regarding the moral state of the human actor, rather than the suffering incurred by the animal, and was an expression of what came to be known as a new Victorian ethic. This focus on human behavior, even more specifically on the malicious intent of human behavior, placed early animal protection laws within criminal codes, where in Canada they remain to this day.
Criminal law is meaningful if it functions to inform the conduct of individuals. However, enforcement of emerging social standards in Victorian times was problematic, as the setting of standards and informing the public of these standards was a new function of government. Previous to this era, policing largely focused on property protection and had not generally been identified as contributing to the public good.
Public policing, where police services are provided by the state and funded from tax revenue, is a relatively recent development in democracies. The first public police department in New York City was established in the 1840s (6). In the 1867 amendments to the New York State Penal Law, one of the earliest significant animal protection laws in North America, the American Society for the Prevention of Cruelty to Animals (ASPCA) was given police powers. This delegation of state criminal authority to a private organization was a unique and extraordinary approach (6). Private policing of animal welfare statutes has, however, become a popular model in North America for animal welfare enforcement in the context of nonfederal regulatory offences.
An example of private policing is given by the legislation enabling the Ontario Society for the Protection of Cruelty to Animals (SPCA), which was critically reviewed recently in an Ontario court of justice decision (9). The Ontario SPCA is a privately incorporated company, with shareholders as a not-for-profit organization, and a registered charity. Shareholders may purchase various classes of shares and vote for a board of directors. Neither the province nor any municipality has a right of board membership. The board directs company policy and passes by-laws consistent with its aims. The company is exempt from taxation and is permitted to raise funds and use them as it deems fit. The Ontario SPCA hires its own agents and inspectors and determines the parameters of their employment. The employees of this company have been granted unusual powers, which devolve to the local police agencies only if no local SPCA exists. Those powers include the policing powers of investigation, the right of entry onto private property without a warrant, directing the removal of animals without judicial intervention, billing the owner for costs incurred, and selling or destroying animals seized. Any appeal lies initially with the board of directors of the SPCA. In a publicly funded enforcement model, such as that in place in Manitoba, animal protection officers have similar powers; however, appeal of actions of officers are made directly to an elected official, the Minister of Agriculture.
(AAS note: in BC, animal owners who believe the SPCA has wrongfully seized their animals, who have complained to the Ministry of Agriculture, the Attorney General, and/or the Solicitor General, have either had their complaints unanswered or been told to complain to the BC SPCA.)
The police powers of the Ontario SPCA are executed by the organization, all the while attending to its own need to raise funds. In order to do the latter, the Society relies heavily on the publicity it can glean from high profile seizures and prosecutions. A communications branch is tasked with fund raising, in part, by maximizing the public visibility of enforcement activities. In reviewing this organizational arrangement, the Honorable Justice Zuraw J wrote, “Without publicity and high profile charges, the funds the S.P.C.A. needs to operate would no doubt dry up” (9).
Police powers, such as investigation, detention, arrest, and the gathering and sharing of personal information, require fundamental restraint and accountability in a democratic society based on the rule of law and respect for human rights.
The privatization of police
Since the 1960s, financially constrained, public-funded police services have responded with varying levels of privatization. Privatization of police services involves transfer of powers and questions of who pays for the service and who delivers it. There are 3 primary models for government to share the costs of law enforcement: user fees, contracting out, and load shedding.
In user fee structures, governments can produce services and charge individuals user fees proportionally to their use of the services. In the private security industry in Canada, agents of companies, whose services are available for a fee, are given certain police powers that are subject to subsequent individual records review by uniformed services, such as the Royal Canadian Mounted Police (RCMP). In veterinary medicine, the live animal export certification service of the Canadian Food Inspection Agency is, in part, a fee for service regulatory program.
Privatization by contracting out is where the government collects the funds, usually tax base, but hires the provider of the services in the marketplace, for example, airport security.
The most complete form of privatization, referred to as “load shedding,” is where both the funding mechanism and the service delivery are shifted to the private sector (10). The establishment of the American SPCA in New York in the 1800s was an example of load shedding where, by design, enforcement of animal welfare inspection and prosecution was funded by the fines received from successful prosecution. In application, high visibility prosecutions acted more to recruit voluntary donations, which became the basis for financial support of the organization (6).
Load shedding is seen to be appropriate in some aspects of property protection, as in private guards at shopping centers and uniformed police services at special occasions, like concerts. In the enforcement of criminal or quasi-criminal legislation, load shedding has some serious potential problems in assuring safety, equity, human rights protection, and accountability. The best documented moral hazard associated with load shedding is in the administration of the forfeiture of proceeds of drug trafficking in the United States (11). The law enforcement agenda in the drug war has shifted to target assets and not crime. For example, it is more profitable for enforcement agencies to delay intervention until drugs are sold illegally and then to seize the cash, which is retained by the agencies, than to seize the contraband, which must be destroyed (12).
Policing relies on visibility to deter criminality. If there is no risk of inspection, detection, and prosecution, the most stringent animal welfare statute is meaningless. Clearly inspections and investigation of complaints must be funded. If an animal welfare enforcement system is self-funded through court ordered settlements, serious equity problems may develop in that animals of low financial value may be ignored, where proceeds of seizure will not offset the enforcement action cost. If an animal welfare enforcement system is self-funded through public donations, there develops a motivation for high visibility publication of enforcement proceedings, with or without conviction, with the aim of collecting voluntary donations, at the risk of infringing on the civil rights of the accused. This potential abuse may in itself be a violation of other legal protections. If governments are the sole funding agent of policing services, the soft services are at continual risk of fluctuating government priorities and defunding pressures.
(AAS note: the last-minute charges laid against the Greater Vancouver Zoo in the case of Hazina the hippo was perceived this way by many in the legal profession and in the media.)
Making animals the most statutorily protected type of property
In the USA, the federal government has been identified as having limited potential for addressing animal welfare concerns due to constitutional limitations (13). In smaller countries, such as New Zealand, animal welfare concerns have been reflected successfully in national policy and law (14,15). In Canada, severe mistreatment of animals falls under the Criminal Code, which is enforced by the uniformed police services, while, in most provinces, appropriate animal care legislation is enforced by nonprofit organizations. The humane killing and the humane transport of food animals, multi-province issues, are regulated by the national veterinary authority.
International law
Currently there are no conventions binding countries to an equivalent level of protection of animal welfare. Recent activities of international organizations suggest that the national veterinary authorities will have increasing responsibilities in animal welfare assurance. The Office international des épizooties (the OIE) has been recognized by the World Trade Organization since 1994 as the international organization for animal health. Due to the essential relationship between animal health and animal welfare, the representatives of its 164 member countries asked the OIE to take the lead role in developing international animal welfare standards.
The director general of the OIE convened an ad hoc group in April 2002, bringing together the best experts in the field from a diverse range of backgrounds and cultures. The International Committee of the OIE unanimously adopted the recommendations of the ad hoc group on animal welfare during its 70th General Session (May 2002). A permanent working group on animal welfare with the same membership as the ad hoc group was then established, which held its first meeting in October 2002. The initial international OIE “Global Conference on Animal Welfare” held in Paris, February 22–25, 2004, by invitation only, attracted more than 450 participants from 70 countries (16). Animal welfare has the potential to become an issue of international trade concern in the future.
The Animal Care Act (Manitoba) administration
In Manitoba, The Animal Care Act (17) was proclaimed in 1996, with regulations in place by 1998 (18). In contrast to the Criminal Code, which primarily focuses on defining, identifying, and punishing acts of severe neglect, ill treatment, and cruelty, the philosophy of The Animal Care Act more closely resembles the New Zealand national statute by requiring a “duty of care” towards animals under human control. Under the Canadian constitutional division of powers, provinces can not declare a human action to be a crime. However, under a provincial statute, the acts or omissions of neglect, ill treatment, and intentional infliction of suffering are still prohibited and punishable; the duty of care covers a much broader spectrum of human behavior towards animals. The provincial statute promotes a proactive and preventative agenda, while the federal Criminal Code is rooted in identification of offenders and punishment. The Animal Care Act has also incorporated the Codes of Practice, such as the Canadian Kennel Club Code (19). As codes are updated, the current standards for animal care have the force of law in Manitoba.
Implementing a new animal care act in Manitoba provided the opportunity to develop a responsible, financially efficient, and respectful and just policing structure.
Authority
Overall enforcement of The Animal Care Act and policing authority was retained with the provincial Minister of Agriculture. Prosecutions were referred to a specialized unit within the Department of Justice for animal welfare enforcement. Animal protection officers (APOs) are appointed by the minister; they are “peace officers” (20) for the purpose of the administration of The Animal Care Act and have additional administrative powers of inspection, seizure, and disposition, as described in the Act and Regulations. In addition all uniformed police officers, whether employed by federal or municipal forces, also have APO powers to administer the Act.
Administration and infrastructure, including a centralized reporting desk, are housed within the office of the chief veterinarian, who has assigned a veterinarian as the primary program administrator. Animal protection officers have been appointed, as recommended by the administrator, subsequent to completion of a training course and an evaluation. As of January 2006, 14 permanent employees of the province working in the inspection services of the Chief Veterinary Officer have been appointed as APOs. Additional APOs include 28 private veterinary practitioners located across the province, 4 municipality-employed by-law enforcement officers, and 4 officers in the employ of the Winnipeg Humane Society. General police services in rural Manitoba are provided by municipal and provincial contracts with the RCMP and local municipal police forces. Local uniformed police often initiate animal welfare inspection or support investigations, depending on individual situations.
Funding
Funding for the cost of inspection and enforcement is a mix of public and private. Self-employed rural veterinarians provide services at about 40% of the hourly rate established by the Veterinary Services Commission for on-farm or in-clinic work, but contract payment includes all time spent in discharge of the case. Other costs, such as vehicle mileage and meals, are reimbursed at the provincial rate. Privately employed individuals appointed as APOs, such as municipal by-law officers, uniformed police, and Winnipeg Humane Society employees, provide inspections as part of their employment duties and do not recover costs from the Minister of Agriculture. Advanced investigations are time consuming and are usually led by APOs who are full-time provincial veterinarians.
Private funding of APOs comes with the risk of politicizing the functions of policing; however, it provides for some very attractive benefits. For example, in urban areas, it has been our experience that local car dealerships will provide new marked vehicles annually to APOs, in exchange for modest identification on the vehicles for the purposes of advertising. The ability to allow community participation in animal welfare issues may be regarded as positive in a culture of community policing.
Evaluation
Evaluation of the performance of police and enforcement services is very difficult. From the perspective of enforcement officers and prosecutors currently administering the Act, the general performance of the statute and administration is satisfactory. To date, no major prosecution that has been initiated has failed to receive a conviction, with fines ranging up to $37 000 on multiple charges and with prohibition of animal ownership for up to 5 y; the maximum allowable on first offence has been awarded when requested at sentencing.
Conclusion
The veterinary profession is linked with animal welfare protection in the eye of the public. In a recent survey of 400 Manitoba residents, the top 3 places where citizens would report animal abuse or neglect were the local veterinarian (42%), local humane society (38%), and uniformed police (24%) (21).
Globally, as reflected in recent OIE efforts, animal welfare is being increasingly recognized as a regulatory function of veterinary authorities. However, national veterinary authorities have limited ability to provide local animal welfare policing. Significant public pressure is building in Canada for a more modernized legislation and enforcement of the public’s concerns for animal welfare. The Manitoba experience supports a paradigm where subnational veterinary authorities take a lead in establishing legislation and working out responsible and efficient local enforcement operations. Credibility of the authority administering police functions is critical for success. In Manitoba, this credibility is provided by the Chief Veterinary Officer, and political commitment is identified by committed crown prosecutors. Without this essential support in place, improving the inspection and enforcement of well-articulated statutes will not occur.
Private funding of policing activities poses challenges to credibility and maintenance of a just and transparent enforcement process. Animal welfare policing services should be provided as a professional public service and not linked with self-funding initiatives. Veterinary colleges providing curricula in regulatory veterinary medicine should include the enforcement of animal welfare statutes as an emerging area of the practice of veterinary medicine.
References at http://www.pubmedcentral.nih.gov/articlerender.fcgi?artid=1624913