By Michael Croft, University of Technology Sydney
This case note was originally published in the Animal Law Case Book, ed Sophie Riley (1st ed, 2015) and has been republished with minor edits by Voiceless with permission from the editor.
Citation: R v Menard (1979) 43 CCC(2d) 458 (Que CA)
Court – Quebec Court of Appeal
Judges – Lajoie, Bélanger and Lamer JJA
Date of Judgment – 11 July 1978
FACTS OF THE CASE
Menard operated an animal shelter, which had a policy of killing stray animals who were not claimed within three days. Such animals were placed in a small metallic chamber, which was then filled with carbon monoxide from a car engine. Although the animals normally died within two minutes, they would usually remain conscious for the first thirty seconds. The evidence indicated that the animals experienced pain, suffering and burns during this time. Further, it was possible to modify this process to eliminate such suffering without significant cost or difficulty. Menard was convicted of wilfully causing unnecessary pain and suffering to animals contrary to s 402(1)(a) of the Canadian Criminal Code (‘the Code’). However, his conviction was overturned on appeal (‘first appellate Court’), where it was held that the Crown had failed to establish proof of substantial suffering. The Crown appealed to the Quebec Court of Appeal.
- Whether the first appellate Court misinterpreted the concept of “pain and suffering” as found in s 402 of the Code.
- Whether the first appellate Court was incorrect to conclude that s 402 of the Code required the “pain and suffering” to be substantial.
- Whether the first appellate Court had misinterpreted the concept of necessity as a defence.
- Whether Menard’s conduct breached s 402 of the Code.
The Court found that the pain and suffering caused by Mr Menard was unnecessary within the meaning of s 402 of the Code.
“Pain and suffering”
The primary judgement was handed down by Lamer JA, with whom Lajoie and Bélanger JJA agreed. Lamer JA found that the Code’s characterisation of cruelty aligned with Hawkins J’s definition of the concept in Ford v Wiley (1889) 23 QBD 203. In that case, Hawkins J found that “To support a conviction then, two things must be proved — first, that pain or suffering has been inflicted in fact. Secondly, that it was inflicted cruelly, that is, without necessity, or, in other words, without good reason.”
The requirement that pain and suffering be substantial
Lamer JA inferred that the legislative intent was not to criminalise actions that caused “the least physical discomfort” to animals; however, the Court held that it was “to this extent, but no more, that one may speak of quantification”. It was held that “the amount of pain is of no importance in itself from the moment it is inflicted wilfully… if it was done without necessity…and without justification, legal excuse or colour of right”.
Lamer JA reasoned that, in some circumstances, it may be necessary to subject an animal to suffering, either for the benefit of humans or the animal his or herself. For example, testing medicinal remedies, although involving significant pain for animals, is ultimately necessary. Lamer JA expressed that “[t]he animal is subordinate to nature and to man” and that “[i]t will often be in the interests of man to kill and mutilate wild or domestic animals, to subjugate them and, to this end, to tame them with all the painful consequences this may entail for them.”
However, his honour also recognised that, as humans claim to be rational, the treatment of animals must “reflect… those virtues we seek to promote in our relations among humans.” Accordingly, he interpreted the element of necessity as prohibiting the infliction of pain, suffering or injury which was not inevitable in the context of the purposes and circumstances of inflicting the pain. Relevant considerations were held to include “the social priorities, the means available and their accessibility.” In expounding this principle, Lamer JA emphasised “the privileged position which man occupies in nature,” and asserted that eating meat is justified by this privilege.
Breach of s 402 of The Code
Lamer JA considered that euthanising stray dogs may be necessary in some circumstances. Accordingly, that act could not be denounced in itself. However, in the present case, the pain and suffering experienced during the initial thirty seconds could have been avoided easily and without significant cost. Accordingly, it could not be considered inevitable, and Menard was therefore guilty of the offence. Lamer JA allowed the appeal, and restored the conviction.
This case is significant in the sense that the conclusion as to necessity was supported by a philosophical analysis concerning the relative superiority of humans to animals. The Court emphasised the way in which there were limits upon the way in which humans could treat animals, and that excessive cruelty would be unacceptable. Nonetheless, the reasoning in the case entrenches the subordination of animal interests to valid human purposes; where the purpose for exploiting or harming animals is legitimate, the suffering inflicted may be deemed legitimate as well. In this case, the conduct was not unlawful by virtue of the inviolability of animals; rather it was unlawful as it was unnecessary.