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Is keeping hens in the city a charter right?

Other cities permit urban coops but Calgary, Toronto and Winnipeg are holding out


 
Running a-fowl of the constitution

Photograph by Jeff McIntosh

In 2009, Paul Hughes phoned up the city of Calgary to alert officials to six egg-laying hens being kept illegally in an urban backyard coop. Calgary’s bylaw services responded by issuing the owner of the chickens a $200 fine for “possessing and keeping livestock” in a prohibited area inside city limits. Only that person was Hughes, who, in an effort to spark a legal battle with the city, had ratted himself out for owning the hens. And so began a constitutional cockfight that landed Hughes in a Calgary courtroom this week, where he argued city-dwelling Canadians have a Charter right to raise their own food by keeping chickens—and potentially other food-producing animals—in their own backyards.

Hughes, an ex-soldier, former weekly newspaper reporter and single father who lives on disability pay of just $12,500 a year, is taking on the complex legal challenge without a lawyer. The Provincial Court of Alberta trial was to wrap up March 9, but a written decision by Judge Catherine Skene isn’t expected for several months.

If Hughes wins he’ll be the plucky hero of thousands of Canadians nationwide who keep clandestine chicken coops for home-fresh eggs in backyards, garages and even basements. It’s estimated Calgary has 300 such urban coops. Yet in many big U.S. cities and some Canadian ones, including Victoria, Vancouver and Guelph, Ont., it’s perfectly legal to keep backyard hens (though cock-a-doodling roosters are banned in every city).

But holdouts like Calgary, Toronto and Winnipeg remain. Toronto recently sent out letters to chicken owners charged under its bylaw: it will give them a reprieve on their 30-day deadlines to remove their birds until a ruling is made on Hughes’s case.

Among the facets of his legal defence, Hughes argues that a ban on chickens in one city, while not others, is discriminatory under Section 15 of the Charter, which reads, in part: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.”

But the backbone of his argument is the contention that growing one’s own food in any reasonable way is an inalienable human right upheld by Article 25 of the United Nations Declaration of Human Rights, to which Canada is a signatory. Hughes believes he should be able to exercise that right by raising his own chickens for eggs. And the fact that he’s prohibited from doing that in Calgary, while a Vancouverite can, is an infringement, he claims, of his fundamental freedoms of conscience, thought, belief and expression as covered in Section 2 of the Charter. He also contends that under Section 7 (“Everyone has the right to life, liberty and security of the person”), “liberty” includes his right to produce food for himself and his family in a manner he sees fit. “This is so much more than just chickens,” says Hughes, who three years ago started a grassroots organization called CLUCK (Calgary Liberated Urban Chicken Klub). It now has 28 chapters across the country. “This has really blossomed into a right-to-food challenge. It’s the first time that the right to food, outside an Aboriginal context, has been brought in front of the courts in Canada.”

With his chicken suit, Hughes is fighting for a growing number of Canadians who see backyard farming as a way to re-engage with nature, control the quality and source of their food and snip some of their dependence on the industrial food chain. Many CLUCK members also have ethical objections to commercial egg-producing methods. Backyard flocks have more room and natural sunlight than most commercial operations, they argue, and hens can engage in normal behaviour like dust baths and chasing bugs.

One of these proponents is Lorraine Johnson, author of City Farmer: Adventures in Urban Food Growing. She was busted by Toronto authorities in 2010 for keeping three hens at her downtown home even though no one complained. “My neighbours were completely fine with the chickens.” Her notice came about 10 days after newspaper articles about her book appeared, along with photos of her and her urban chickens. “I guess Animal Services wanted to make an example of me.” Johnson, 51, never lived on a farm. But, just like her, she says, a swell of citified Canadians are “breaking down the distinctions we have between city and country.”

It’s not just a movement of granola eaters and latter-day hippies, either. In the Calgary suburb of Cranston, where streets are lined with closely spaced, large, single-family homes in regulated tones of tan, beige and sienna, sits the residence of Stephanie and Steve Mellross. Parked in front is her Cadillac CTS and his GMC Sierra 4 x 4 pickup. Out back, dusting themselves in a dirt strip, are five softly clucking heritage hens of various breeds. Steve, 41, owns Marco Polo Furnishings, a patio furniture importer. His wife, 38, teaches Grade 4. The couple got their first birds in 2010 knowing it was illegal. The bylaw, says Steve, is “against my rights. I’m growing food, I can do that any way I want, it’s my backyard. I’m not infringing on anyone’s rights.” If anything, he says, “I’ve got more dog poo in my front lawn [from neighbours’ dogs] than there is chicken poo in their yards.” His only complaint from neighbours? That he can’t keep up with neighbourly requests for free eggs.

Prompted by concerns over the corporatization of food, it was Stephanie who came up with the idea to turn their standard-sized back lawn into a combination garden and chicken coop where she grew 260 lb. of vegetables last year and collects about four eggs a day. “I think the industrial model is completely unsustainable,” says Stephanie. “And I think the quality of the food that comes out of the industrial model is sub-par. Even if I buy organic free-range eggs at a premium of $7 a dozen, they still don’t taste as good as the ones I can create myself.”

The chickens, as it seems to be with all the urban hen keepers Maclean’s interviewed, have become more pet than livestock. “I was very surprised how much I warmed up to them,” says Steve. “They are excellent animals and the kids absolutely take to them.” Hughes had hoped to bring one of the Mellross’s chickens, a Buff Orpington named Buffy, to the court as evidence of the tranquil nature of the hens. However Judge Skene, grinning through Hughes’s request, quickly shot down that idea. “I don’t have to think about this one for very long,” she said. “No chicken.”

In Canadian cities that have changed their bylaws to allow backyard chickens, there’s little evidence urban coops have caused problems. In 2010, Vancouver voted to allow residents to keep up to four chickens in some parts of the city. Peter Fricker, the Vancouver Humane Society’s communications director, says the organization opposed urban chickens when Vancouver city council debated the subject. “We were concerned about the standards of care that chickens might get, because a lot of people aren’t familiar with animal husbandry,” says Fricker. The society worried chickens would fall prey to predators and that people would fail to recognize when they were sick and get proper veterinary care. But Fricker credits Vancouver’s council with creating sound guidelines, restrictions and a registration program (not to mention a controversial $20,000 homeless chicken shelter) that has dissuaded all but the most serious chicken-o-philes from setting up coops. Only a few dozen people have registered urban coops since 2010.

Fricker’s concerns about urban chicken coops may have been eased, but the Egg Farmers of Canada, the national association representing egg producers, has concerns about the spread of backyard flocks on the grounds that they expose both chickens and humans to potentially serious health risks such as salmonella. Peter Clarke, the Egg Farmers’ new chairman, argues that animal welfare and food safety regulations in commercial operations—including systems that control temperature and humidity—protect chickens from outdoor predators, keep them clean and separate them from their excrement. Clarke has 34,000 layers and, with his son’s operation, 60,000 pullets (or young hens) on their farms in Nova Scotia’s Annapolis Valley. Thanks to constant testing for illnesses like salmonella and the professional attention farmers give their hens, he says, life is better for commercial flocks. He insists egg farmers aren’t worried that the spread of backyard flocks might cut into farm profits, but are only concerned about the welfare of the animals. “Our operations, in my opinion, are absolutely better for the birds with regards to their health and cleanliness and the production of safe food.”

Lorraine Johnson isn’t like those chicken activists who are convinced the poultry industry has been pushing lawmakers to maintain bans against urban poultry. But she dismisses Clarke’s notion that commercial operations are better than responsibly run backyard henhouses for healthy, content chickens as “utterly ridiculous.”

Ultimately, chicken rights are a different battle. For now, Hughes is focused not on chicken freedoms, but on the human freedom to keep a reasonable number of well-looked-after chickens on Canadian urban properties. While a few days before the trial he said he was confident about a victory, “There’s a certain degree of nervousness because I’m going in and representing a bunch of people.”

For one of those people, Stephanie Mellross, a win for Hughes will relieve her of the spectre of bylaw officers swooping in for her chickens some day. “It will be nice knowing I won’t have to chain myself to my coop.”


 

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