I'm the Lorax who speaks for the trees!"
Long before there was a hit movie, children could remember reading Dr. Seuss's story of The Lorax, about a determined orange creature who made them wonder whether anyone would speak for the trees. Back in the world of non-fiction, the Supreme Court of Canada is now being asked to consider whether anyone can speak for Lucy
Lucy, a 35-year-old Asian elephant, was captured as a baby in Sri Lanka in 1977 and has been captive at the Edmonton Valley Zoo ever since. For 18 years, she had the company of an African elephant named Samantha, but in 2007, Samantha was sent to another zoo on a long-term breeding loan. Lucy now lives alone, and she is suffering.
Elephants are highly social and very intelligent, with complex physical, psychological and social needs. They require very large spaces, variegated natural terrain, pasture, lots of things to do and a moderate climate. Wild female elephants spend their entire lives in relatively stable family groups with their mothers, sisters, aunts, cousins and even their grandmothers.
Lucy is in solitary confinement. Prematurely aged because of her captivity, she suffers from health problems that the zoo has been unable to resolve. She lives in a small, barren enclosure, and she must endure Edmonton's cold winters, confined indoors to even smaller concrete and rubber quarters when she's not on display. Lucy has been offered a home at the highly respected California sanctuary where the Toronto Zoo's three elephants will soon be retiring. The City of Edmonton, which owns the Valley Zoo, won't let her go.
The local humane society won't enforce the laws that are supposed to protect Lucy. Yet, as the law stands, nobody else is allowed to speak for her or to assert her interests in any formal way. She needed a good lawyer. Two animal protection organizations - Zoocheck Canada and People for the Ethical Treatment of Animals - and a resident of Edmonton hired one, Clayton Ruby. They brought an application in court for a declaration that the City of Edmonton is violating provincial zoo standards. Those standards prohibit keeping an animal in distress, and they specifically proscribe keeping female elephants alone.
The Alberta courts dismissed the case without considering its merits. The majority of the Court of Appeal said letting Lucy speak, or letting someone speak on her behalf, is unnecessary, contrary to precedent and should not be allowed.
But Chief Justice Catherine Fraser wrote a thoughtful and powerful dissent. It's the most important legal development for animals in Canadian judicial history. She gave serious consideration to Lucy's plight, and stressed that, when government refuses to abide by existing laws, it's important for the rule of law that someone be able to bring an injustice before a court.
The Supreme Court is now considering whether it will hear Lucy's case. The central issues before the court are not only Lucy's right to justice but the right of Canadian citizens to have their laws respected and to go to court if the government itself doesn't obey the law.
After reviewing the uncontroverted evidence of several experts, Chief Justice Fraser concluded that the evidence "packs a powerful punch. It holds up a mirror for all to see - provided one is prepared to look into the mirror. What it reveals is a disturbing image of the magnitude, gravity and persistence of Lucy's ongoing health problems and the severity of the suffering she continues to endure from the conditions in which she has been confined. And it also exposes who is responsible for those conditions and that suffering."
There's still time for Canada's judicial system to right this wrong. Lucy's story could yet have a happy ending. In The Lorax, the trees were saved because someone spoke for them. Will the Supreme Court let someone speak for Lucy?
Lesli Bisgould is an adjunct professor at the University of Toronto's law
faculty and author of Animals and the Law.