Enforcing the Canadian Prohibition of Overcrowding Livestock in Transit Without Resorting to Science

Administrative law is about articulating norms and promoting the adoption and enforcement of human behaviour practices in areas where individual choice conflicts with the public good. Law must fairly describe to the citizenry what is allowed and what is conditionally restricted by administrative law and what is prohibited in criminal law. The conditional use of animals in industrial production of food and fibre for human consumption is allowed (non-criminal), but the conditions which are considered acceptable by society are changing. Humane transportation of livestock is a public concern and the temptation of transporters to load as many animals as possible is an easily understood risk to animal welfare. Livestock hauling has been regulated in Canada since 1857 and is currently regulated by the Health of Animals (Act) Regulations Part XII and enforced nationally by the Canadian Food Inspection Agency. After over 30 years of challenging industry consultation, a major revision to the humane transport provisions was proclaimed in 2020. Surprisingly, the revision failed to articulate numerical thresholds that clearly indicate an overcrowding violation. This paper reviews 20 cases from 2004 to 2024 where transporters appealed a penalty for overcrowding livestock transported by land. The paper describes the decision to penalize transporters where there is no bright line definition of an offence. The paper suggests both regulator and regulated choose to work in an intentionally inefficient institutional arrangement, preferring opacity to clarity in what constitutes a violation in law, because "that's the way we like it".