Enforcing the Canadian Prohibition of Overcrowding Livestock in Transit Without Resorting to Science
Simple Summary
Abstract
1. Introduction
2. Brief History of Livestock Transportation Regulation in Canada
3. Good Law
4. Soft Law
5. Malleability of Common Law
“In short, the Administrative Monetary Penalty System has imported the most punitive elements of penal law while taking care to exclude useful defences and reduce the prosecutor’s burden of proof. Absolute liability, arising from an actus reus which the prosecutor does not have to prove beyond a reasonable doubt, leaves the person who commits a violation very few means of exculpating him- or herself.”
“Therefore, the decision-maker must be circumspect in managing and analyzing the evidence and in analyzing the essential elements of the violation and the causal link. This circumspection must be reflected in the decision-maker’s reasons for decision, which must rely on evidence based on facts and not mere conjecture, let alone speculation, hunches, impressions or hearsay.”
6. Methods
7. Results
“The determination as to whether the animals were crowded during transport to such an extent as to be likely to cause injury or undue suffering is not a simple matter of applying the actual weights of the animals and the dimensions of the trailer to the loading density chart (page 4, first paragraph, Wendzina decision)”.And“In determining whether there is overloading to such an extent as to be likely to cause injury or undue suffering, the type, age and condition of the animals at the time of loading, the number of walls in the trailer, the type and extent of floor covering in the trailer and the weather conditions at the time of loading and during transport are all significant factors to be weighed (page 4, third paragraph, Wendzina decision)”.
“The Tribunal finds that the Agency has established, on the balance of probabilities, that two of the three dead hogs were in compartments of the transport that were overcrowded, based on national code-referenced calculations, considered to provide indica of overcrowding. Overcrowding remains a question of fact, to which various codes or standards may be referred to in support, but which ultimately becomes a determination based on the particular circumstances”.
8. Discussion
“The Agency has not convinced me on a balance of probabilities that it was likely that an animal would suffer, sustain an injury or die due to the number of animals in the container” [Para 34].In this series of appeals there is also evidence of lack of congruence between what written rule declares and how officials enforce the rule. In 2023 CART 20 at para [31]:“While I am sympathetic to Brussels’ concern about the apparent arbitrariness of the Agency’s decision to only investigate when more than three hogs arrive dead in a single load, the Tribunal has no mandate to specify that all breaches of the regulations be enforced.”In 2024 CART 06 at para [39], a similar situation was documented. Inspector Amanda Murphy testified that the regulations in question are “outcome based”. She stated, repeatedly, that the Respondent will not pursue enforcement if an otherwise overcrowded trailer does not show any negative outcomes (like hyperthermia). Inspector Murphy’s testimony is consistent with Section 15.2 of the Respondent’s Interpretive Guidance document.
9. Conclusions
Funding
Institutional Review Board Statement
Informed Consent Statement
Data Availability Statement
Acknowledgments
Conflicts of Interest
References
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Repealed | Replaced 22 April 2020 | |
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Prohibition of Overcrowding 140 (1) No person shall load or cause to be loaded any animal in any railway car, motor vehicle, aircraft, vessel, crate or container if, by so loading, that railway car, motor vehicle, aircraft, vessel, crate or container is crowded to such an extent as to be likely to cause injury or undue suffering to any animal therein. (2) No person shall transport or cause to be transported any animal in any railway car, motor vehicle, aircraft, vessel, crate or container that is crowded to such an extent as to be likely to cause injury or undue suffering to any animal therein. | Overcrowding 148 (1) No person shall load an animal, or cause one to be loaded, in a conveyance or container, other than a container that is used to transport an animal in an aircraft, in a manner that would result in the conveyance or container becoming overcrowded, or transport or confine an animal in a conveyance or container, or cause one to be transported or confined, in a conveyance or container that is overcrowded. (2) For the purposes of subsection (1), overcrowding occurs when, due to the number of animals in the container or conveyance, (a) the animal cannot maintain its preferred position or adjust its body position in order to protect itself from injuries or avoid being crushed or trampled; (b) the animal is likely to develop a pathological condition such as hyperthermia, hypothermia or frostbite; or (c) the animal is likely to suffer, sustain an injury or die. 148.1 No person shall transport an animal by air, or cause one to be transported by air, unless it is transported in a container that meets the stocking density guidelines that are set out in the Live Animals Regulations, 44th edition, published by the International Air Transport Association, as amended from time to time. |
general | High specificity of the rules prohibiting or permitting behaviour of certain kinds |
widely promulgated | Publicly accessible rules as publicity of laws ensure citizens know what the law requires |
prospective | Specifying how individuals ought to behave in the future rather than prohibiting or sanctioning behaviour that occurred in the past |
clear | Citizens should be able to identify what the laws prohibit, permit, or require |
non-contradictory | One law cannot prohibit what another law permits |
compliable | Must not ask the impossible of the regulated |
constant | The demands laws make on citizens should remain relatively constant, laws should not change frequently |
congruence | There should be congruence between what written statute declares and how officials enforce those statutes. Congruence requires lawmakers to pass only laws that will be enforced and requires officials to enforce no more than is required by the laws. |
Ref. | Reference | Word Count | Code | Math | Chair | Description | Sect. | Case Turns on…. | Outcome |
---|---|---|---|---|---|---|---|---|---|
2004 RTA #60126 | F. Ménard Inc. v. Canada (CFIA) | 1137 | Y | N | TSB | 4 August, daily high of 29 °C and high humidity, the applicant loaded 115 hogs from several farms and transported them to the slaughterhouse. At the time of unloading 12 hogs were dead and the remainder of the lot were demonstrating symptoms related to heat stress. | 140(2) | The transporter did not decrease the floor pressure to the extent recommended by the Transport Code of Practice. | Notice upheld: The applicant committed the violation and is liable for payment of the penalty in the amount of CAN 2000.00 to the respondent within 30 days |
2006 RTA #60228 | Transport Giannone-Garceau Inc. v. Canada (CFIA) | 624 | Y | Y | TSB | The applicant transported a load of chickens from Woodstock, ON to Drummondville, Quebec, (784 km) on the evening of 4 October and morning of 5 October. Eighty cages contained eight chickens each and five hundred and fifty-six cages contained seven chickens each. The chickens had an average live weight of 3.86 kg. A large number of dead birds were found in cages located in the centre of the trailer more than 10%. | 140(2) | The Transport Code recommends a maximum live weight loading density in cold weather of 63 kg/m2, equates to 7.4 chickens per cage in this case. | Notice upheld: The deaths (and undue suffering) of the chickens was caused by overcrowding in the circumstances and accordingly has established on a balance of probabilities that the applicant committed the violation. Reduced the penalty from USD 4400.00 to CAN 2200.00. |
2006 RTA #60231 | René Nadeau v. Canada (CFIA) | 1497 | Y | Y | TSB | 1 March loaded 780 crates of 45-day old broiler chickens, to be transported to Grand River Poultry located in Beamsville, Ontario. At slaughter the birds were diverted to a second processor because they were too large for the processor settings. The weather conditions were fair and cool throughout transport, total travel time 26.5 h. The DOA rate was 7.22%, 332 birds were condemned. | 140(1) | The recommended Code of Practice for chickens the recommended maximum live weight loading floor pressure for crates in cold weather is 67.9 kgm−2, whereas the density in this load was 71.8 kgm−2. | Notice upheld: Tribunal determined the applicant committed the violation, by allowing these chickens to be crated and transported in the manner they were. and is liable for payment of the penalty of CAN 2000.00 to be paid within 30 days. |
2006 RTA #60246 | Curtmar Farms Limited v. Canada (CFIA) | 1738 | Y | N | TSB | On 6 March, two front compartments contained 12 calves in the upper section and 13 calves in the lower section on an overnight trip from Carbonear to Port aux Basques ND (866 km) took approximately ten to twelve hours and loaded on a ferry to Quebec. Weight of calves recorded but not area of compartment. | 140(1) | Insufficient numerical data in the decision to calculate floor pressure. | Quashed: The evidence overcrowding is based almost entirely on the weight of the animals as estimated by the young and inexperienced driver, and which evidence has been put in considerable doubt by the direct evidence of the applicant. Lack of supporting evidence |
2006 RTA #60250 | Curtis Edwards v. Canada (CFIA) | 1266 | Y | N | TSB | Loaded 45 cattle (cull dairy cows) at Prince Albert SK on 26 October, and arrived at destination in Calgary AB on 27 October, at noon, to travel 741 km distance. A downer animal was identified at Taber AB 701 km mark. This animal was DOA and 2 further animals were down. | 140(2) | The belly of the trailer contained one animal over the maximum recommended limit, and the back compartment contained 2 animals over the maximum recommended limit by reference to the Transport Code. | Notice upheld: The applicant committed the violation and is liable for payment of the penalty in the amount of CAN 2000.00 to the respondent within 30 days. |
2007 RTA #60288 | Timothy Wendzina v. Canada (CFIA) | 1398 | Yes | N | TSB | It is undisputed that on 1 March, the applicant transported a load of 38 dairy cattle (Holsteins with one Jersey) and a bull from the farm to XL Beef in Moose Jaw, Saskatchewan, a distance of approximately 250 km. The weather conditions were a temperature of −8 °C, wind at 28 km/hr gusting to 41 km/h, and a windchill of −17 °C. It was overcast with light snow. On arrival there were multiple cows down in the belly of the trailer and ambulatory cattle had to be unloaded over top of one of them. Three animals were unable to stand, were recumbent, non-responsive, wet, covered in excrement, and had to be euthanized. | 140(2) | The problem compartment was overcrowded by the Code standards, but dead cows were not weighed, and other numerical facts do not appear in the decision. | Tribunal determined the applicant committed the violation and is liable for payment of a reduced penalty in the amount of CAN 2200. |
2008 RTA #60307 | Brian’s Poultry Services Ltd. v. Canada (CFIA) | 2498 | Y | Y | TSB | On 4 October, two loads of chicken; Load A 4532 chickens (80 crates at 8 birds per crate and 556 crates at 7 birds per crate). The average weight per crate was 27.02 kg, 453 dead birds were found (10% of load). Load B 5460 chickens (780 crates at 7 birds per crate). The average weight per cage was 26.88 kg 590 dead birds were found (10.8% of load). Both trucks travelled Woodstock ON to Drummondville PQ, 786 km. | 140(1) | BPS presented the Transport Code recommending the maximum live weight loading densities for chickens in crates in cold weather to be 63 kg/m2. Load A was 12.1% below the recommended maximum; and load B was 12.5% below the recommended maximum, Crate weight measured floor area of a crate not measured at inspection. | Quashed: The Tribunal indicated that death is evidence of suffering. Tribunal determined the applicant did not commit the violation and is not liable for payment of the penalty. Decision to overturn was based on the reporting of the floor pressure of crates being below the soft law standard. |
2013 CART 34 | 0830079 B.C. Ltd. v. Canada (CFIA) | 8864 | Y | N | DB | On 25 July, transported 6018 spent laying hens on 2 trailers: 3600 in Trailer A, 84 crates (28 chickens/crate) plus 48 crates (26 chickens/crate) and 2418 in trailer B, 96 crates (26 chickens/crate). At slaughter, Trailer A had 703 DOA and Trailer B had 124 DOA. Size of crate not measured or not recorded in decision. | 142(2) | Service contract stipulated 18 birds/crate. Code of Practice recommended maximum was 19 bird/cage for trailer A and 18 bird/cage for trailer B. Actual number of birds loaded was 28 and 26 birds per cage. | Notice upheld: On the balance of probabilities, the accused committed the violation and is liable to pay the respondent, the Canadian Food Inspection Agency, a monetary penalty of CAN 3000 within thirty (30) days (reduced from CAN 6000). |
2013 CART 42 | Finley Transport Limited v. Canada (CFIA) | 14,888 | Y | Y | BLR | 5 August, afternoon 205 hogs loaded at Petrolia ON to Toronto ON slaughterhouse 278 km, at 30 °C; 3 dead on arrival one live unable to stand, dead in three different compartments. Pigs in respiratory distress, panting with oral froth. Recorded compartment floor space, pig weight not available assumed 230 lb (105 kg). The 6 central compartments in the potbelly area of the trailer were loaded at 242 kgm−2. | 140(2) | Finley did not adjust the number of pigs/compartments in response to the hot ambient temperatures. Ruled death was from heat exhaustion and death of this type is significantly foreseeable. | Notice upheld: Defence claimed preexisting heart conditions as cause of death. The Tribunal established, on the balance of probabilities, that the three hogs in question died from heat exhaustion due to overcrowding and orders t pay the Agency a monetary penalty of CAN 6000 within thirty (30) days |
2014 CART 33 | Western Commercial Carriers Ltd. v. Canada (CFIA) | 8867 | Y | Y | DB | On 1 July the appellant transported 270, 113 kg pigs (best weather capacity of trailer though to be 280 pigs) in the early morning that day in Falher, AB and then driving the to Langley, BC (1266 km). He arrived in Langley very early in the morning of 2 July 2013. At 07:00 that morning, as the pigs were unloaded at the slaughterhouse, 30 pigs were DOA and 1 distressed pig killed at unloading. | 140(1) | Did not reduce number loaded to 75% of his best weather load. Eight of the 12 compartments of the truck had dead hogs, with 4 compartments having 5 DOAs, no clustering within a compartment. Average floor pressure across 12 compartments was 251 kgm−2 of live pig at loading. | Notice upheld: On a balance of probabilities, the applicant, committed the alleged violation, and orders it to pay to the respondent, the amount of CAN 6000.00 within 30 days. |
2016 CART 07 | TransVol Ltée v. Canada (Minister of Agriculture and Agri-Food Canada) | 2827 | N | N | DB | 8 and 9 March the appellant a commercial broiler chicken catching company loaded 7340 birds into 734 cages, 10 birds each and 14 additional cages on the truckload left empty. The load arrived at slaughter in slightly more than 1 h. Upon arrival officials found 48 dead chickens and one cage containing 20 chickens with 6 dead. Only the one cage was considered overcrowded. | 140(1) | TransVol does not contest the fact that the 20-bird cage was found on a truck, but rather it alleges that the particular cage in question was not filled or loaded onto the truck by its employees. It is impossible to cram 20 chickens weighing 2.37 kg into the type of cage used in this case; and some of the chickens must have been culls and weighed far less than the average 2.37 kg. | Notice upheld: On a balance of probabilities the applicant, TransVol Ltée., committed the alleged violation, and ordered it to pay, the Canadian Food Inspection Agency, a monetary penalty in the amount of CAN 7800.00 within 30 days |
2016 CART 27 | Transport Robert Laplante & Fils Inc. v. Canada (CFIA) | 3696 | Y | N | DB | On 17 May, the applicant transported 237 pigs for 3 h from farm to slaughter. Due to a miscalculation, he believed he had only loaded 232 pigs. On arrival 2 pigs were found DOA and 2 further pigs were stressed. | 140(2) | No numerical evidence, nor location of dead and compromised pigs was contained in the decision. | Notice upheld: On a balance of probabilities, the applicant, committed the alleged violation, and orders it to pay to the respondent, the amount of CAN 6600.00 within 30 days. |
2017 CART 16 | Transport Eugène Nadeau Inc. v. Canada (CFIA) | 4559 | Yes | No | DB | On 14 May, an unusually hot day high 27.7 °C, the applicant transported 180 pigs coming from two barns about 70 km to the abattoir taking 9 h (mechanical failure on road), arriving on 15 May. The loading of the pigs started at 07:00 a.m., and the pigs were finally unloaded at the abattoir at 16:00 p.m. At unloading 10 DOA on top deck, some of the pigs appeared to be in distress. | 140(2) | At the time of the incident the trailer compartments were measured and compared to the code maximum. No numerical evidence was recorded in the decision. | Notice upheld: On a balance of probabilities, the applicant, Transport Eugène Nadeau Inc., committed the alleged violation, and orders it to pay to the respondent, the Canadian Food Inspection Agency, a monetary penalty in the amount of CAN 7800 within 30 days |
2021 CART 16 | C.I. Hishon Transport Inc. v CFIA | 3251 | Y | Y | LB | On 13 July, 211 hogs weighing 125 kg were loaded into a trailer from three different farms located in relative proximity to each other in western Ontario. The load then made its 13 h journey of about 725 km to the slaughterhouse facility in Saint-Esprit, Quebec. On arrival there were 7 dead and 2 in respiratory distress. | 140(2) | Dead and compromised pigs were all confined to the rear compartment loaded at 334 kgm−2. With 7 pigs dead the floor pressure was reduced to 267 kgm−2 and 2 additional pigs were dying. | Notice upheld: On a balance of probabilities The CFIA has demonstrated a causal link between Hishon Transport and the transport, the crowding, the actual injury and undue suffering confirmed the penalty in the amount of CAN 7800.00. |
2023 CART 11 | Atkinson v CFIA | 4010 | Y | Y | MR | Brandon Manitoba 328 sheep to Slaughter in Ontario (no destination reported) three animals with injuries, each in separate compartments: a dead lamb, a downed cull ewe that was subsequently euthanized and a dead newborn lamb. | 148(1) | Truckside calculations of floor pressure were presented as evidence. Inspectors were using transport Code of Practice standard, that evidence was not documented in the decision. Dead ewe was old and emaciated. | Quashed—the Agency did not prove on the balance of probabilities overcrowding caused injury or undue suffering to the dead lamb or the downed cull ewe. Overturned on weakness of evidence |
2023 CART 20 | Brussels Transport Ltd. v CFIA | 4482 | Y | Y | PLF | Denfield ON to Saint-Espirit PQ 772 kilometres in 8.5 h at 24–30 °C. Of 170, 130 kg market hogs, five were found dead in the trailer in 2 different compartments upon their arrival at the slaughter house; 3 of 24 and 2 of 18. Other animals were observed in respiratory distress upon arrival. This federal slaughter facility documents and investigates loads with 3 or more DOA. | 148(1) | Accepted maximum allowable floor pressure in standing room only pigs, best possible weather and trip duration to be 287 kgm−2. The code requires reduction in crowding by 25% in hot weather. In Compartment A loaded at 238 kgm−2, 3 of 24 died; Compartment B, loaded at 314 kgm−2, 2 of 18 died. The weather warranted a 25% reduction in floor pressure as recommended by the Code. | The Notice is upheld. Brussels failed to reduce the density of hogs in two compartments by 25% in response to the hot, humid weather during the hogs’ transport. Maximum loading pressure of market pigs in summer weather (soft law) is 3/4 of 287 kgm−2 is 215 kgm−2 both compartments were overloaded, penalty of CAN 13,000.00 confirmed. |
2024 CART 06 | 1230890 Ontario Limited v CFIA | 1993 | Y | Y | EC | Appellant confined 167, 128 kg, market hogs from 3 farms near Kerwood, ON, and transported them to Breslau, ON, 156 km at 27 °C, 1hr 29 min. Dead pigs were identified in 3 compartments | 148(1) | Adopted Ontario Pork recommendation that for ambient temperature from 24 °C to 28 °C to reduce load by 15% from the National Code. Tribunal compared the 10 compartments to the standing room only 287 kgm−2. | Compartments ranged from 103 to 245 kgm−2. The most crowded compartment has reduced floor pressure by 14.6% and contained no dead pigs. Quashed—The Notice and its penalty of CAN 10,000.00 are cancelled. |
2024 CART 17 | Earl MacDonald and Son Transport Limited v CFIA | 3722 | Y | Y | GP | On 10 August, 171 pigs were loaded and transported at 26–28 °C (840 km) in a triple axle potbelly trailer from Thamesville ON to Saint-Espirit PQ. In the rear compartment, 3 of 27 pigs loaded were DOA. Some pigs were panting on arrival, but had no other abnormalities (hernia, lameness, etc.) and were placed in a pen to cool off under showers provided for this purpose. | 148(1) | Facts: 27 pigs. average 121 kg loaded in a compartment of 12.65 m2 a floor pressure of 258.3 kgm−2. Accepted (soft law) maximum allowable floor pressure, in standing room only pigs, accepted as be 287 kgm−2. The Ontario Pork guide requires reduction by 15% in hot weather, or a maximum floor pressure of 244 kgm−2. The compartment was overloaded by 3 pigs. | Notice upheld: Violation occurred at the time of loading and did not require the death of pigs. Confirm the administrative monetary penalty provided for in Notice of Violation in the amount of CAN 10,000. |
2024 CART 20 | Vernla Livestock Inc. v CFIA | 2292 | Y | N | PLF | Two incidents where market pigs loaded 205 hogs on the 30 December. 2 pigs stressed and killed on arrival, and 260 hogs on 18 January; 3 hogs DOA, 2 further hogs, were non-ambulatory on arrival and euthanized. First appeal where individual hog weight was estimated by the difference between loaded and empty trailer weight precluding compartment floor pressure calculations. | 148(1) | Due to the number of animals in the container, an animal was likely to suffer, sustain an injury or die. This case is based on the likelihood of a future event. No floor pressure information was presented in the decision although CFIA calculations of floor pressure were accepted in evidence. | Quashed—the penalties of CAN 11,000.00 and CAN 13,000.00 as the Agency has failed to prove that Vernla committed the violations of overcrowding. Decision to overturn: Agency did not prove average weight of hogs, floor pressure could not be calculated which is the basis of the offence. |
2024 CART 27 | 1230890 Ontario Limited v CFIA | 2487 | Y | Y | MR | On 28 January, the Applicant loaded 270, 135 kg, market hogs at a farm and transported them to an abattoir. Eight compartments held 30 hogs each and 2 compartments held 15 hogs. The load arrived with 7 dead hogs and 3 non-ambulatory hogs distributed in 6 compartments. At unloading pigs were panting, an unusual presentation in winter. Weight of pigs was recorded in ruling but area of compartment(s) was not | 148(2) | Due to the number of animals in the container, an animal was likely to suffer, sustain an injury or die. This case is based on the likelihood of a future event. It is not “outcome-based” as argued by the Agency. No floor pressure information was presented in the decision although CFIA calculations of floor pressure were accepted in evidence. | Quashed: The Agency has the burden of proof. Quote: “The Agency has not convinced me on a balance of probabilities that it was likely that an animal would suffer, sustain an injury or die due to the number of animals in the container.” Penalty of CAN 13,000.00 was cancelled. Decision to overturn: Rational for overturning the decision is not clear, no clear reason was given for disbelief of overcrowding. Emphasis may have been requirement to predict the future in the clause “likely to suffer”. There was no indication of emphasis in the printed decision. |
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Whiting, T.L. Enforcing the Canadian Prohibition of Overcrowding Livestock in Transit Without Resorting to Science. Animals 2025, 15, 2612. https://doi.org/10.3390/ani15172612
Whiting TL. Enforcing the Canadian Prohibition of Overcrowding Livestock in Transit Without Resorting to Science. Animals. 2025; 15(17):2612. https://doi.org/10.3390/ani15172612
Chicago/Turabian StyleWhiting, Terry L. 2025. "Enforcing the Canadian Prohibition of Overcrowding Livestock in Transit Without Resorting to Science" Animals 15, no. 17: 2612. https://doi.org/10.3390/ani15172612
APA StyleWhiting, T. L. (2025). Enforcing the Canadian Prohibition of Overcrowding Livestock in Transit Without Resorting to Science. Animals, 15(17), 2612. https://doi.org/10.3390/ani15172612