Elephant in the Courtroom: Edmonton wants lawsuit over pachyderm punted

May 4, 2010

by: Jim MacDonald, Canadian Press

A legal tug-of-war has begun in Edmonton over the fate of Lucy, an aging pachyderm that animal rights groups say is suffering and should be moved to a sanctuary in the United States.

The case has become a magnet for celebrities, including Bob Barker and William Shatner, who have urged the Valley Zoo to give up Lucy and let her socialize with other elephants in a natural setting.

But the city, which owns the zoo, argues that the animal has received the best possible care and says a move could kill her.

City lawyer Steven Phipps tried Tuesday to derail the case brought by PETA, Zoocheck Canada and their high-profile lawyer, Clayton Ruby.

Phipps told a Court of Queen's Bench civil hearing on Monday that the animal rights groups were abusing the legal process. He argued that if there were any violation of animal protection laws, enforcement officials would have taken action already.

Phipps said this civil action could create a "dangerous" precedent.

"It would be quite dramatic if all of a sudden any citizen could bring a civil action alleging a person had contravened a piece of legislation and only have to prove it on a balance of probabilities in civil court," he told reporters. "It would completely undermine the criminal regulatory system."

But Ruby said the 34-year-old Asian elephant is in distress and needs to be moved to a warmer climate and added that the city is trying to immunize itself against any legal challenges that would force the zoo to give up Lucy.

"You can't keep this animal on cement. It's bad for her body and her feet," he said. "She's got arthritis and she's in pain. They haven't given her a large enough place to exercise."

Justice John Rooke reserved his decision, but made comments that raised a few eyebrows in the courtroom.

Rooke said there's nothing stopping provincial or city enforcement agencies from taking action in the meantime if animal protection laws are being violated. Ruby seized on this remark when he spoke to the news media, flanked by a couple of women holding a "Save Lucy" banner.

"I thought it was striking that the judge closed with an earnest plea to have the Humane Society actually go and investigate and do something," he said outside the courthouse.

"I can only suppose that he was struck by the evidence, which is that the city's own expert says, `You're putting this animal at harm.'"

Ruby argued that the groups were forced to act because no one else has come forward with legal action to protect the elephant, which has had various health problems in recent years, including difficulty breathing.

"The province won't prosecute, because the province issued the zoo its licence," said Ruby. "So the city is really saying, `Nah, nah, nah, nah, nah, you can't touch us."