Marineland seeks to have charges over bears stayed, pleads not guilty

Marineland has pleaded not guilty to alleged offences regarding its care of three young black bears and has asked to have the charges stayed.

The Niagara Falls, Ont., tourist attraction filed a motion on Friday to have the case stayed over what it alleges is an abuse of process.

Ontario's Animal Welfare Services, part of the Ministry of the Solicitor General, laid three charges against Marineland last May for failing to comply with an order.

The province had previously ordered Marineland to build an enclosure for the bears — named Slash, Lizzie and Toad — with climbing structures and permanent access to water.

Marineland argued it had complied with the order because it forfeited the bears to the Crown — they were relocated to sanctuaries — rather than building an enclosure.

Animal Welfare Services had revoked the order in December 2022, after the bears had left the park.

"Removal of the bears was a form of compliance," said lawyer Scott Fenton, representing Marineland. Fenton argued that charging Marineland for non-compliance with the original order, when that order had been later revoked, was wrong.

"Allowing this prosecution to proceed would constitute an abuse of process," he argued.

The Crown opposed Marineland's motion. Prosecutor Jason Kirsh said Animal Welfare Services issued the order regarding the bears in June 2021, but gave Marineland until Sept. 11, 2021 to comply.

Acknowledge the 'period of non-compliance,' says Crown

The Crown argued Marineland was not in compliance between Sept. 11, 2022, and Feb. 18, 2022.

On Feb. 18, 2022, Animal Welfare Service inspectors determined Marineland had not complied with the order to build the bears' structure and ordered the removal of two of them, Kirsh said.

Marineland also remained non-compliant on the last bear, and on Nov. 16, 2022, inspectors ordered its removal, court heard.

On Dec. 12, 2022, with all three bears forfeited to the Crown, the province revoked the initial order for the structure, court heard. The province laid three counts of failing to comply with orders in May 2023.

The Crown said Marineland has misinterpreted the law.  

"Let's just imagine that on Dec. 12, 2022, Marineland had come into compliance, that they had built a large enclosure with the water features and the height requirements ... That does not negate the period of non-compliance," Kirsh said.

The Crown also argued the integrity of the judicial system was at stake. "To halt this prosecution and allow Marineland to avoid a trial on the merits would bring the integrity of the judicial system into disrepute," Kirsh said.

Marineland has said the bears were "born unexpectedly at the park during the COVID-19 pandemic due to a birth control failure."

In 2016, when the Ontario Society for the Prevention of Cruelty to Animals enforced animal cruelty laws, Marineland was charged with one count of failing to comply with the prescribed standards of care for about 35 American black bears, including failing to provide adequate and appropriate food and water for them.

The Crown later dropped those charges, saying there was no reasonable chance for a conviction.

In 2013, the OSPCA issued an order to Marineland to build separate habitats to protect bear cubs from being mauled and devoured by adult males. Marineland said it would develop a birth control program, which the OSPCA agreed to. The park said it complied with the order.

Marineland had a new bear cub this past summer when The Canadian Press visited. The cub, Oscar, was being protected by its mother and two other female bears.

The justice of the peace presiding over the current bear case reserved her decision.