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Who really needs access to justice?

It is an inescapable fact that our lives as lawyers will be guided in part by ethical considerations. For some of us, studying law is an opportunity to pursue social justice. For the rest of us, professional obligations require us to practice ethically and act in the public interest.

And one issue that will affect all spheres of practice – from the lowly legal aid clinic to the high society Bay Street boardroom – is the issue of access to justice. Whether it is doing pro bono work for an impoverished client, or ensuring diversity in a large firm, improving access to justice has become a fundamental concern of the legal profession.

Yet, we learn about this issue as though the only groups that lack adequate access to justice are minorities, women, and the socioeconomically disadvantaged. While improving access to justice for these groups is undoubtedly important, there is another group in Canadian society whose current situation is far more desperate. It is a group so neglected that they are not even mentioned in the legal ethics curriculum. It is an access to justice problem so massive that it hasn’t even yet been recognized as an access to justice problem.

I’m talking about animals.

How massive is this problem? In Canada, over 630 million animals are tortured and killed on factory farms – each year. Animals are forced into tiny, dirty cages or pens, where they are kept in the dark and unable to move. Chickens have their beaks amputated, cows are branded and castrated, and pigs have their tails cut off – all without anesthetic. Chickens routinely die from suffocation, dehydration, or being crushed alive. Dairy cows are forcibly impregnated, and their calves are separated from them soon after birth. Over a million unwanted piglets are lifted by their hind legs and slammed onto a concrete floor until they die.

The bigger problem, though, is that this represents only a portion of all the animals in Canada that are ignored, underrepresented, and inadequately protected by our legal system.

Despite the scope of this problem, it strikes many as minor compared to the ongoing struggle for equality and justice among humans. After all, protecting animals just isn’t what the law is about. The law is about regulating human affairs and protecting the interests of humans.

While that might be the way the law is now, it is certainly hasn’t been that way for very long. There was a time – in fact, it was most of the time – that the law was for white, Christian men. When it came to women, blacks, Jews – well, that’s just not what the law was about. Over time, as our ethical considerations expanded, so too did the scope of the law. We came to recognize that all humans are entitled to protection under the law.

But why should we stop at humans?

Most people would say that we are fundamentally distinct from non-human animals; there are certain qualities possessed by humans alone; and it is this that entitles us to more and makes us more important than any other species.

But what qualities are these? Many animals have more sophisticated language, more developed consciousness, a stronger sense of self, and richer emotional experiences than many humans – including infants, the severely cognitively disabled, and the comatose. Yet we all recognize that to do to these humans what we do to animals would be unequivocally wrong.

But if there are no qualities or capacities that are unique to humans alone, then to draw a distinction between non-human animals and ourselves is to draw a distinction solely on the grounds of a genetic difference. However, genetic differences alone are ethically irrelevant. The fact that another being has different genes does not justify treating it however we want.

It was our failure to recognize this truth that allowed people to justify their racism and sexism. We saw people with different skin colours and sexual organs and decided that those facts alone justified our mistreatment of them. If we now recognize that such a view is mistaken, then how can we justify our mistreatment of animals solely on the grounds of genetic differences?

Simply put, we can’t. Animals are entitled to ethical consideration because they are conscious and sentient and capable of experiencing a wide range of physical and emotional states. As the philosopher Jeremy Bentham put it in 1789: “[T]he question is not, Can they reason? nor, can they talk? but, can they suffer?

It is time that the law reflects this. It is true that there is federal and provincial legislation aimed at ensuring some protections for animals. But a 2001 report led by Professor Lesli Bisgould of the University of Toronto Faculty of Law concluded that these laws are far from enough:

Something is rotten in the state of Canadian agribusiness and we found no evidence within the confines of our study of any real attempt by government (who  has the legal authority) or industry (to whom government has delegated much of    that authority) to fix it. Canadian laws, despite paying lip service to the societal        expectation that we treat animals “humanely”, actually regard animals as nothing   more than production machines. Both on the federal and provincial levels, they facilitate the infliction of the most profound privation and suffering on hundreds    of millions of individual animals on an annual basis.

There is little evidence that anything has changed in the last thirteen years. So instead of hoping government or industry will change their behaviours, we should look to legal education as the starting point for change. This means integrating concerns about animal rights into the legal ethics curriculum; addressing issues pertaining to animals as they arise in the first year core curriculum; and offering a specialized upper-year course on animal law.

We should work to foster a legal profession that is committed to animal rights and welfare, because only then can we ensure that there is access to justice.