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Professor Sankoff Represents Animal Justice at Canada’s Highest Court

On November, 9th, 2015, Professor Peter Sankoff appeared before the SCC on behalf of Animal Justice as an intervener in the case of R v DLW. Animal Justice is an organization dedicated to advancing public knowledge of animal practices and preventing the abuse and killing of animals through the enforcement of existing laws.

In late November, Canons sat down with Professor Sankoff to discuss his involvement in the case and ultimately, his appearance at the SCC. The following is a condensed version of Canons’ interview with Professor Sankoff.

How would you describe the overall experience of appearing at the SCC?

To be honest it’s a bit surreal. I spent a year there as a law Clerk but that was a long time ago. The case was very well attended and sitting at counsel table was a thrill.

When those judges walk in the room, it’s kind of overwhelming and the key is learning how to control your emotions. One of the reasons I think I was able to deliver a solid performance was because I was really well prepared. Although, I didn’t get many questions, I was able to progress through my argument quickly and cohesively because I had spent so much time preparing.

Seven judges is a lot, and you have to try and engage all of them in the argument. I tried to argue with a lot of passion because I believe that if you show that passion, the judges will know that you have confidence in your argument. In this case, arguing in this way was easy for me given that I was advocating for a position that I believe in.

If nothing else, I think my passion was compelling to the judges. I think they were more interested in our arguments than they thought they might have been at the outset.

How did you first become aware of the case?

I had followed it from the trial level. Once we saw that there was a 2-1 split at the Court of Appeal, we contacted the Crown and confirmed that were planning to appeal (as of right) and once they filed their notice of appeal we were began preparing a motion for leave to intervene. I keep up-to-date on all cases involving substantive criminal law and this one came up on my radar right away.

What is your relationship with Animal Justice?

I am very close with the executive director (Camille Labchuk) who was my co-counsel in the appeal. I have a strong interest in the future of the organization and am on its board of advisers. Given my friendship with Camille, it didn’t take long for me to persuade the group that they should get involved with the appeal.

What are some of the challenges of arguing as an intervener as opposed to a party?

It’s really hard, especially given the limitations on the factum and the oral argument! You can’t bring up anything that constitutes new evidence, which can be really tricky, and we decided not to concentrate on certain lines of argument on that basis. When you are a party, you are given a lot more flexibility to do things. It was really challenging just to get our arguments in. There were at least three arguments that we wanted to make and we ultimately condensed them into two. Ten pages is not a lot for a factum and 10 minutes to make your points orally feels like even less.

Do you think that this case will change the way Crown Prosecutors approach criminal cases involving animals?

That’s a tough call to make. Getting leave to intervene was the victory for us. The court has denied leave to intervene in animal cases before to animal advocates. So it was significant to us that they were willing to listen to what we wanted to say. Whether it changes the Crown’s view is a different issue. As counsel for Animal Justice, my interest was in looking out for the animals. Many people think that the Crown is a natural ally for us in these kinds of cases but that’s not true. I don’t think the Crown took the right line in this case (arguing that animals don’t matter to the crime of bestiality), and that’s why we got involved. Groups like Animal Justice that are trying to advance particular causes are really geared for these kinds of cases.

Given that applications for interveners in animal law cases have been denied before this case, what do you think was different about your case?

What got us before the Court in this case was the fact that the Crown took such a harsh position, effectively dismissing the notion that the need to protect animals plays a role in determining the scope of the bestiality offence. This opened the door for our argument. One part of the test for intervener status is being able to show that you have a distinct perspective to add to the law, so that fact that the Crown proceeded in this way made it easier for us to establish that. There’s no question that there is a greater openness to listen to legal arguments about animals and that times have changed. More people have an interest in these issues and as a result it is harder to dismiss them as fringe concerns.

What were some of the benefits of you being able to approach this case from an academic perspective?

This was a case that was tailor-made for an academic and intervener cases often are. When you are arguing for a party, you end up fighting that party’s line and trying to do all you can to win. I don’t care as much about winning or losing as long as the court sees the point we are trying to make and the value we added to the case. What we were trying to suggest is that the law needs to evolve in a particular way and point out things that are important to the overall construct of the law.

Will you continue to monitor cases and get involved with appeals moving forward?

Absolutely. There is no question that I have a bit of the advocacy “bug” and I want to do other cases. I think it’s good for every aspect of my teaching and there are causes I want to get involved in. I’ll be watching SCC cases and I am interested in getting involved in Alberta cases as well.