In September the Ontario Superior Court struck down local bans on circuses with exotic animals on the grounds that such bans interfered with the rights of free expression of circus performers.
The case stemmed from a 2002 law adopted by the city of Windsor that forbade exotic-animal acts within the city. The Ontario Superior court ruled that the Windsor city council ban was both irrational and a violation of the freedom of expressions. The summary of its ruling was as follows,
Xentel DM Inc. v. Windsor (City)
[2004] O.J. No. 3656
Ontario Superior Court of Justice
Gates J.September 7, 2004
(156 paras.)The Shrine Circus had been performing in the City of Windsor for 18 years. After City Council approved a report recommending issuance of a permit to the Circus, the City received a letter from an animal rights advocacy group indicating that there were safety issues arising from the use of the exotic animals in circus performances, and that the animals endured lives of deprivation and brutality. Without undertaking any studies, Counsel passed a bylaw prohibiting entertainment involving exotic animals. Xentel DM, a circus producer, and others applied to the court to quash the bylaw. The City argued that it had authority to regulate for public safety pursuant to s. 236.7 of the Municipal Act. There was evidence that in the previous 13 years, three people out of the 30 million people who attended at the circus sustained an injury.
Held: Application allowed and bylaw struck down. The bylaw was ultra vires Council. Council had attempted to legislate for animal welfare by clothing the bylaw with the trappings of public safety without undertaking due diligence investigation. The bylaw was also discriminatory, was enacted in violation of the principles of fairness and was ultra vires as an attempt to regulate public morality, which involved the exercise of the Federal criminal law power. Finally, the bylaw violated the applicants’ right to freedom of expression under s. 2(b) of the Charter. The violation was not saved by s. 1 of the Charter. There was no rational connection between the bylaw and its objective, as there was no evidence that animal performances created a danger to the public.
Not surprisingly, circuses were happy at the decision while circus opponents were angered.
Pierre Barnoti, executive director of the Quebec Humane Society, told The Montreal Gazette,
It’s very scary because they have created jurisprudence. The repercussions are huge.
Andrew Plumbly, director of Global Action Network which has campaigned against circuses in Canada, told The Montreal Gazette that his group would continue to lobby cities to make such changes but that public education was the best tactic to stop circuses.
Len Wolstenholme of Xetnel DM Inc., which filed the appeal to the Ontario Superior Court, welcomed the decision saying,
The bottom line is that for the past decade the animal rights people have had things going all their way. That’s going to change.
The full text of the Ontario Superior Court’s decision can be read here.
Source:
Circus wins round against animal bans. Kazi Stastna, The Montreal Gazette, September 16, 2004.