This is about the judgment in an internationally renowned case in which Anita Krajnc was charged with criminal mischief for giving water to pigs. She and her fellow Toronto Pig Save group would hold vigils focusing on animals being shipped to slaughter. They regularly offer water to the pigs, from bottles put through the slats of the slaughtertruck. In particular, Krajnc was charged with interfering with the use and enjoyment of property. I am very proud of Anita, as we have long been friends, and she gives me credit for converting her to animal rights by screening The Animals Film at the University of Toronto in the 1990s.
Judge D. A. Harris' ruling on the case did clear away all charges. The judgment itself though can be charged with serious shortcomings, and has little to offer by way of substantive merit. This judge seems to be a procedural judge rather than a substantive one, or roughly one who goes by the letter rather than the spirit of the law.
First of all, the dismissal of charges was purely mechanical: not being satisfied beyond a reasonable doubt that the relevant interference occurred. There is no evidence that anything other than water was being offered to the pigs: the trucker declined an offer to test the water; the truck did not turn back to the farm; the slaughterhouse took no precautions against contamination;  and no facility has ever rendered such precautions in the entire history of the Pig Save Movement. Giving water is not tantamount to "interference" in Harris' judgment. So far, so good.
Some of the Shortcomings
- Harris dismissed Dr. Marino's expertise in neuroscience and animal behaviour as relevant for distinguishing who/what is person versus property. That is because her testimony was supposedly not based in Canadian common law, according to which pigs are property.  He is obviously not that substantive judge Steven Wise, author of Rattling the Cage, is hoping for who will be open-minded in recognizing that there is a clear overlap between certain human right-holders (such as some who are mentally disabled) and nonhuman rightless beings who are equally psychologically sensitive. In some sense, any judge falling short of a substantive recognition of that equality is not stepping up to the plate and exercising rational consistency as a requirement for moral-legal conceptions.
- Personhood is one thing, but saying that Dr. Marino was not fit to judge torture,  in spite of her obvious expertise in animal lives and minds, is a calloused-conservative thing to say. In ethics we speak of those who are "morally blind." He is blind to conditions suffered by pigs that would immediately be considered torture if done to humans, or even to so-called "pets." Procedural law is often a case of entrenched and perpetuated irrationalism at a societal, legal level, and is being carried on in this vein here. There were procedural judges under Nazi Germany and Apartheid too.
- In a speciesist fashion of equal moral blindness, he imputed to Dr. May the veterinarian that she had "coloured testimony" because her views opposing animal exploitation are known.  That is like saying that a medical doctor who opposes slavery would have had her findings dismissed after rendering an opinion on a stinking slave ship that just arrived over the Middle Passage. Were the entire set of expert opinions of the anti-slavery advocates of the world - during the era of more widespread slavery - to be dismissed before slavery was illegal?
- He claimed that the video showed only a few out of the 190 pigs on the truck and thus discounted the footage.  It is as if activists zeroed in only on distressed pigs and ignored all of the others who were okay. A perverse form of bias - supposedly on the activists' part. Yet the bias of the judge is in evidence here: his moral blindness is part and parcel with an all-too-common blindness to suffering, which has been documented virtually as well as could be, as in Animal Alliance's expert review of "food animal" law and policy in Canada. Also, why do not individual pigs matter? Legally speaking, individual dogs matter.
- Again his procedural bent is evident when he was disappointed that Dr. May provided no "objective assessment" of degrees of distress "and application...to the governing regulations."  First, it needs to be considered whether and to what extent suffering is so much a matter of objectivity in the first place, or rather taking subjects of experience - that is, experiencers - seriously. There is a tendency in general discourse to confuse subjective as in (1) a real subject of experience, or experiencer, which cannot seriously be doubted, with (2) subjective as in an unreliable opinion. If "objective" is likewise distinguished as referring to (1) an object of consciousness, or (2) a reliable assertion, we can reflect that it is a reliable assertion - or objective - that the pigs in relevant situations are subjects of experience who suffer egregiously. Second, Harris' morally blind lack of consideration of suffering has blocked a recognition of the degree of suffering here which would easily be reckoned torture for a dog - legally too I would have to guess. Procedurally that is. But substantively, this judgment is evidently lacking in moral-legal substance.
- His moral blindness carried him on to stumble into his biased characterization that what he might call "animal industries" in Canada are "highly regulated."  We know that is false, as again Animal Alliance has demonstrated in its review by legal experts. And any "highly" is certainly not sharing of any moral high ground.
- How about blindness to the pigs when ambulatory status is equated with lack of distress?  What about Holocaust concentration camp victims who were forced to go on the infamous death marches as the Allies were closing in? Were these prisoners okay because they could walk? He is "offended" by Holocaust comparisons, but in rational terms anyway, here is one that is plainly relevant.
- Proceduralism versus substantivism clashed again when he appended that IF the law were broken (according to some other judge), it could not be excused because of a "higher social value."  Exceptions to letter-of-the-law-breaking need to be specified or rulings become "too subjective." This argument is excessively conservative. It wrongly assumes that the legal letter is always right and that the legal spirit could never expand, as it has repeatedly to include vulnerable, oppressed humans - but only when legislators and judges had the moral courage not to be morally blind any more. With enough judicial substance, prior listings of exceptions can readily be expanded.
- Cynicism about Anita and her fellow activists was on display when Judge Harris conceded that Anita might believe as she declares, but on the other hand, it is possible that she is merely making statements to grab media attention, or "sound bites."  His judgment is the sound that bites. It is merely insulting to imply that Anita might be misrepresenting anyone or anything out of some kind of publicity-lust. Such degrading imputations should be seen as beneath the dignity of anyone sitting on the bench. I wonder if Justice Harris, when imputing cynical media-grabbing to Anita - which ironically proves his own cynicism - stopped to consider that maybe Anita did not cause the driver to exit his vehicle, execrate her, have her charged, and so on. She did none of these actions and so cannot coherently be charged as merely acting to seek publicity in this case. Yet he writes that the publicity from the trial is as never before for the Save Movement.  In any case, Anita seeks publicity as part of pursuing a just cause. It is a false dilemma to imply that one must choose between seeking media coverage and pursuing a just cause. All major just causes in furthering societal substance seek publicity, and so they must.
- With typical narrow-minded proceduralism, Harris dismisses utterly any analogies drawn by the defence between Anita's case and cases pertaining to Mohandas Gandhi, Nelson Mandela, and Susan Anthony.  He notes that these "can all be distinguished from the present case." In these cases they did not argue that they should not be found guilty of a criminal offence because they were in pursuit of a just cause. True, but proceduralists often pick at any differences they can find to dismiss legal arguments drawing on the common law. Surely criminal mischief is logically incompatible with behaving with just cause - for the just person acts according to morality and the mischievous person acts immorally. Even if that standard of justice is not yet currently reflected in the law and other social practices, it arguably ought to be, and then any consideration of "mischief" evaporates. Note that the standard of justice here need not be veganism/animal rights. A simple standard of animal welfare forbidding animal torture would be enough to find Anita's actions to be just. If this last argument is conceded, then charges of criminal mischief could and should be thrown out by anyone who takes animals the least bit seriously. This reasoning justifies and so invites rather than forbids comparisons with Gandhi, Mandela, Anthony, and indeed others. For they too should not have been found criminal in their pursuit of just causes.
- He is "offended" by the Holocaust comparison,  a note without magisterial grace for its naked opinional flavour. There is a great deal to consider here, and as noted the comparison is immediately salient in dismissing one of the judge's own misguided claims.
- Finally, Harris offers the opinion that if Anita did break the law, she "did not act with legal justification or colour of right."  A substantive judge with the power to see beyond an existing incoherent societal substance to one that is sane in its reasoning would entirely disagree about colour of right. Speciesism stinks and has the colour of rot! That is both speciesism that withholds rights from animals, and also the radical speciesism which denies even any animal welfare to so-called "food" animals, "laboratory animals", and others.
In the substance of a society's morality, wrongful substance must give way to rightful substance. But Justice Harris is hindering rather than enabling this societal process at the judicial level. Judge Harris misspells "protester" as "protestor" . But far more importantly, he misconceives:
- domains of expertise
- the freedom to hold a moral position when rendering an expert opinion
- evidence standards as to suffering
- whitewashing an utterly corrupt set of animal industries
- broad relevance of common law precedents
- the requirements of civility forbidding the insulting of defendants
- protesting and publicity-seeking - among other things.
The way Justice Harris proceeded is thus lacking in moral-legal substance.