A Case of Intolerable Injustice Persists on Canadian Soil

Next month will mark 3 years since the passage of Bill S-203, known as the Ending the Captivity of Whales and Dolphins Act, in Canada’s House of Commons.  The bill banned keeping and breeding cetaceans – whales, dolphins and porpoises – through amendments to the Criminal Code.  There are exceptions for cetaceans kept in captivity when they’re receiving care or rehabilitation after an injury, or for scientific research.  Whales and dolphins that were already in captivity were grandfathered in by the bill, meaning parks were permitted to keep all the animals they had at that time.  Restrictions were placed on importing and exporting those, and parks were prohibited from making them perform for entertainment. 

At the time there were only two remaining facilities affected.  The Vancouver Aquarium had a single dolphin left, but had already announced it would no longer hold whales and dolphins in captivity.  That after the parks board recommended such a move, following an enormous groundswell of support in public consultations.  In other words, Vancouver was getting out of the business even before the passage of S-203.  Marineland Canada at Niagara Falls, the only other captive facility in the country, was an entirely different story.  There, the suffering has continued unabated.  In fact it appears to have gotten worse.

What we’ve seen in the three years since has provided us with more than enough evidence that the time for this awful place to close is now.  The exploitation of these fellow-sentient beings in this country has gone on for far too long.  The conditions in which they’re now forced to live are increasingly appalling. 

This weekend Marineland Canada opened for its 2022 season.  It did so amidst mounting legal troubles, including an animal cruelty charge levied by the Niagara Regional Police Service in December, 2021.  Two months prior, police had launched an investigation over the park’s ongoing use of whales and dolphins in shows for entertainment purposes.  This, of course, is illegal under the terms of S-203, though the park maintains that the shows are for educational purposes only.  Marineland has also persisted in its denials of any and all allegations of animal cruelty.

Dolphin advocates like ourselves have been frustrated with the slow pace of progress in the case. Scott Fenton, the Toronto-based lawyer retained by the park, has made four court appearances since the charge was laid.  The next scheduled appearance will be on June 29th.   In the meantime, approximately forty belugas, five bottlenose dolphins and one lone orca continue to live in conditions that should constitute unacceptable treatment punishable under Ontario’s existing animal welfare laws.  Even without the need to invoke S-203.

In its most essential form, here is the fundamental disagreement over what constitutes ‘cruelty’, when applied to whales and dolphins.  Marineland was strongly opposed to the bill throughout, but when it passed the theme park changed its narrative to line up with the bill’s requirements.  Their publicly stated position at the time was that cetaceans held at the park “do not amount to animal cruelty, despite the allegations of uninformed, professional activists.”  Given that the bill exempted animals currently at the park, Marineland asserted that this “recognizes the educational role of Marineland by prohibiting entertainment only shows while continuing to permit Marineland’s Educational Presentations”.

This was disingenuous and nothing but unconvincing PR.  In fact, the bill said no such thing.  Elizabeth May, Green Party leader at the time, and one of the persons instrumental in the passage of the bill, stated that S-203 very clearly says that keeping cetaceans in captivity is animal cruelty.  Senator Willie Moore, who first brought forward the legislation in 2015, stated that “Whales and dolphins are highly intelligent, emotional and social creatures that roam vast distances in the sea… Science tells us that keeping them in captivity is unjustifiably cruel.  Canada’s laws should reflect the evidence.”  Innumerable expert witnesses, including Lori Marino and so many others, attested to the same thing.

So from the very start, Marineland didn’t believe they were doing anything wrong.  That’s despite the fact that the Parliament of Canada had decided that such a facility would never again be established on our soil.  The ‘grandfathering in’ of Marineland’s whales didn’t mean that what they were doing was right, it just meant that they alone would have a special ‘license’ to continue doing it for a while longer.  But they’d have to live with certain conditions, and there again is where Marineland has failed miserably.

“Bill S-203 does not impair the operations of Marineland.  Marineland will continue to provide world-class care to all of its animals.” 

Three years on, this claim has proven to be absurd, if not fraudulent.  In that short period of time, as many as nine beluga whales have died at the park.  Last summer, an inspection by the Canadian Animal Welfare Services found that the park’s water quality is so poor that’s it’s caused marine mammals confined at the facility to go into distress.  Marineland maintains that “an unknown number of whale deaths at the park were not related to the water issues.”  Ironically, there’s a possibility that’s true, and the real cause is something else – perhaps captivity itself.  

Marineland’s problem is that because S-203 prohibits them from breeding the whales, they can no longer cover up a death by replacing the missing animal with a newly-bred calf.   As a result, the total number of belugas at their Niagara Falls facility has been falling by four or five per year.   That’s even accounting for the five that regulators permitted them to export to Mystic Aquarium in Connecticut.  So now the 54 we started with at the time of the bill’s passage is already down to 40.  Is this the ‘world-class care’ they were referring to?  

It would be less damaging to their cause to admit that water quality is the culprit, perhaps by claiming that a fall in revenues has made it harder to maintain standards for water-quality, food and veterinary care.  But that would invite even more investigations into what has already been a spotty record for many years.  We have to wonder what the rate of loss was before they were able to cover it up with their breeding program.  We may never get an answer to that question, but I suspect it was much higher than the park ever admitted publicly.  But whether it’s poorly maintained water-quality control systems, or simply the stress of captivity (or most likely some combination of both), the conclusion is inescapable.  Marineland Canada is not able to properly care for these individual animals. 

So we’ve got these deaths on top of the investigation into alleged illegal dolphin shows.  There as well, the evidence against the park is compelling.  When filing its complaint, the legal team from Animal Justice also offered up video it had obtained of Marineland shows that took place since the new law came into force.  In the footage dolphins are seen “spinning in the air, pushing trainers through the water, and participating in what the trainers call a “dolphin dance party”—all while music blares, and the crowd oohs and awes at the dolphins’ tricks.”  This is what the park calls an ‘educational presentation’.

We don’t need to emphasize the point that watching a dolphin follow instructions to do spins and flips in the air, to music, in exchange for pieces of dead fish doled out by a trainer, will teach you and your children precisely nothing about how dolphins live in the wild.  It will teach your children, however, that tormenting another species and exploiting it for your profit is an acceptable activity.

As a nation, we don’t need to let this go on.  And I don’t believe it’s even the worst of it.  We haven’t yet spoken of Kiska, Marineland’s most tragic victim of all.

Last summer, disturbing video surfaced of Kiska repeatedly bashing her head and body against the walls of her tank.  Self-destructive behaviour by a highly-intelligent animal in an obvious state of extreme distress.  What would provoke this?  

Consider the life of any captive dolphin, for whom the concept of freedom is utterly denied.  Every decision, from what to eat, to who your tank mates will be, to how you’ll spend your time, are made entirely by someone else.  And that someone is concerned about entertaining his paying customers.  Your needs – both physical and emotional – are completely secondary to that.  That’s the reality for all of Marineland’s belugas and bottlenose dolphins.  But for Kiska, it doesn’t end there. 

Kiska was captured in Iceland over forty years ago, and has been held in captivity ever since.  She has seen a number of her fellow orcas die at the facility in that time, and in fact has been kept in complete isolation from other marine mammals for more than the last ten years.  This isolation has taken an enormous toll on her mental health, and it’s impossible to conceive of how such treatment would not constitute animal cruelty, both under federal statute or under the laws of Ontario.  Even on one of her better days she can be seen “floating listlessly”, a behaviour called ‘logging’ which is never seen in wild orcas, or simply swimming in slow circles around her tank.  Utterly alone.

She is now also the subject of an investigation by authorities, after the filing of a legal complaint.  Today she is referred to as “the world’s loneliest orca” by activists, the media, and marine mammal experts – a fact about which Canada should feel enormous shame.  It is hoped that she will be a prime candidate to be moved to the whale sanctuary being planned for 2023 in Port Hilford Nova Scotia.  That is, if Marineland decides to let her go while they can still squeeze a few dollars out of her.   

Or if we as a nation decide that we’ve had enough.  I say it’s time.

Canadian authorities must shut down Marineland Canada now.

For The Orca’s Voice, 

Jason, Canadian Cetacean Alliance