For some strange reason, one I have never been able to fathom, the city’s legal staff is against this community having a bylaw that prohibits exhibitions or circuses that employ animal acts from appearing in the city.
It was against such a proposal from private citizen Colleen Arvisais-Petzold, who actually had requested the move to no avail many times previously, in 2004 that would have banned wild and exotic animals from appearing in the city and at that time council, passing up the opportunity to be on the leading edge of communities banning circuses, went along with staff.
It was also against a resolution put forward by Ward 2 Councillors Terry Sheehan and Susan Myers in 2012 that would prohibit such acts. But in this instance council pushed staff’s advice to the curb, as well it should have considering it was flawed at best, and opted to go for a bylaw.
This year Ward 3 Councillors Judy Hupponen and Matthew Shoemaker sought to amend the bylaw to bring domestic animals into the mix but legal again objected, using, in fact, the same arguments it did in 2004 and 2012, arguments that made no sense then and make no sense now.
But council was having none of it this time. At its August 21 meeting it sent staff back to the drawing board to incorporate domestic animals into the amended bylaw banning circuses from appearing in city facilities that it had passed in June.
Solicitor/Prosecutor Jeffrey King, in a report presented to council July 17, had suggested council back off from the proposal and instead replace the by-law with a city policy.
He told council that in the early 2000’s the City of Windsor had passed a similar by-law restricting performances involving animals within the city. The by-law was challenged and the matter was heard in the Superior Court of Justice in 2004 by Justice Richard C. Gates, who declared the by-law invalid, determining that it was outside the city’s jurisdiction.
He pointed out that Gates also found that the showing of exotic animals in a circus-like show was “expression”, and therefore the by-law infringed the right to “freedom of expression” guaranteed in the Canadian Charter of Rights and Freedoms.
This, of course, was the argument used by legal staff in 2004 and 2012.
In recommending in 2012 that council not enact such a bylaw, then solicitor/prosecutor Matthew Caputo also pointed to the Windsor by-law’s defeat, as had then assistant city solicitor Nuala Kenny in 2004.
“The judge declared the Windsor by-law unconstitutional and determined that it was outside of the jurisdiction of the city,” Caputo said in his report to council. “In his decision, the judge further determined that the showing of exotic animals in a circus-like show was ‘expression,’ and therefore the Windsor bylaw infringed the right to ‘freedom of expression’ guaranteed in the Canadian Charter of Rights and Freedoms.”
Windsor also had argued that the exhibition of exotic animals could be dangerous to the people of Windsor but the court found that this rationale was not supported by any evidence. It also noted that at the council meeting preceding the passing of the by-law the discussion had focused on the protection of the animals themselves, rather than the public.
“In any event,” I said in a column in 2012, “the Windsor case really doesn’t have any bearing on the issue as it stands today.
“As I mentioned when Sheehan and Myers originally asked for information as to how a bylaw could be prepared, the provincial government stepped into the breach after the Windsor bylaw was shot down, enacting legislation that allowed municipalities to pass bylaws regarding the prohibition, regulation and licensing of exhibitions, menageries, circus riding and other similar kinds of shows.
“Sheehan, in doing his homework, contacted Mark Nazarewich, senior legal counsel for the City of Windsor, to see how things stood there now.
“He told me if they had waited six months, things would have been different,” Sheehan said. “He said, ‘We would have won in court; we would have beaten the challenge’.”
However, Windsor has not made any further moves toward enacting a bylaw.
Caputo in his report recognized that since then “the Municipal Act authorizes cities to pass by-laws respecting animals generally,” but he said “it does not authorize municipalities to pass by-laws contrary to the Charter. A by-law prohibiting animal acts would violate the constitutional freedom of expression.”
Hogwash, I said at the time, and I feel the same way today. The judge in Windsor may have made that argument fly in 2004, but that was simply because the city didn’t appeal. If it had, he would have become a laughing stock, more reasoned judges in higher courts not accepting that freedom of expression has anything to do with cruelty to animals, which is the reason these bylaws are enacted.
And anyway, 30-plus other jurisdictions in the country have such bylaws on the books and none has faced a constitutional challenge and I doubt any ever will. After all, many countries, let alone cities and towns, have enacted laws with either full or partial bans on animal acts, both exotic and domestic.
The Sault council enacted its original by-law in 2012 based on a by-law instituted by the Town of Cobourg, but it didn’t pick up on a fatal flaw that appeared in its own.
The Cobourg bylaw says no person shall operate or carry on a public show, exhibition, performance or circus in which a wild or exotic animal is required to perform for the amusement or entertainment of an audience within the Town of Cobourg. Every person who contravenes any of the provisions of this bylaw is guilty of an offence and, upon conviction, is liable to a fine pursuant to the provisions of the Provincial Offences Act.
Under Regulations, the Sault by-law says the intent is to prohibit wild or exotic animal exhibitions and performances in the City of Sault Ste. Marie.
But under Prohibition it says, “No person shall operate or carry on a public show, exhibition, performance or circus in which a wild or exotic animal is required to perform for the amusement
or entertainment of an audience in any municipally-owned facility or on municipally-owned property.”
Which is it? Is the ban just for “municipally-owned facilities or on municipally-owned properties” or is it for the city proper? as it is in Cobourg.
However, in regard to including domestic animals in the bylaw, legal staff may prefer a policy rather than a bylaw but Hupponen is having none of it.
She has done her own research as to how animals are treated in circuses and says she is sticking to her guns on the issue.
I say good for her and good for council. Domestic animals surely deserve the same treatment under the by-law as that accorded wild and exotic animals.
Doug Millroy can be reached at firstname.lastname@example.org.