Q&A: Future of Marineland uncertain after abysmal season; conviction for poor treatment of black bears

Sunday, September 1st will mark the final day of the 2024 season for Marineland, the Niagara Falls theme park that has arguably been the second most noteworthy attraction in the municipality, only surpassed by the famous cataracts that give the city its name. 

With dwindling attendance, persistent protests from animal rights activists and what the operation described as preparations “for redevelopment under new ownership”, 2024 saw the park scaling back in its 64th year of operations. 

Land animal exhibits, amusement rides, the Hungry Bear restaurant, the Aquarium and the Penguin Palace were “not available”. What remained open, at discounted prices, was the splash pad and the ability to view dolphins at King Waldorf Stadium and beluga whales at Friendship Cove. Marineland was the life’s work of John Holer, a Slovenian immigrant who came to Canada with limited resources and opened the business in 1961. In 2018, Mr. Holer passed away at the age of 83, with the business left to his wife, Marie.

The scaled back attractions and dwindling attention have already raised the specter that this could be the park’s final summer. The new owners are also dealing with legal issues. 

On August 15th, Marineland was sentenced at the Provincial Offences Court in Welland on three convictions for failing to comply with orders under the Provincial Animal Welfare Services Act (PAWS). The legislation was enacted in 2019 to “help ensure that animals are protected and treated in a humane manner.”  

The Pointer sent a series of questions to Marineland, but no response has been received.

The charges related to three black bears that were housed on Marineland property. An agreed statement of facts between Marineland and the Crown and presented to the court in March details how the theme park failed to fix serious issues with the enclosures for the three bears which left them in cramped conditions with few opportunities for exercise or enrichment. 

On June 2, 2021, Animal Welfare Services (AWS) Inspectors, assisted by two veterinarians, attended Marineland and inspected an enclosure that held the three juvenile black bears, two females (Toad and Lizzie) and one male (Slash). The veterinarians were of the opinion that the three juvenile bears were housed in a way that did not meet their physical, psychological or social needs. Their pens consisted of indoor spaces of approximately 48 square feet with an outdoor space that varied in size for each pen but was no larger than 360 square feet. There were also no climbing structures provided and no permanent water sources.

Over the course of several months, the park failed to take the necessary steps to improve the living conditions for the bears. 

On July 5, 2021, AWS issued the first notice of non-compliance based on certain terms of the initial order not being completed by June 22, 2021. Numerous subsequent inspections occurred and in February 2022, Toad and Lizzie were removed by AWS and brought to a wildlife rescue facility. A removal order for the male, Slash, was executed in November 2022.

During the process, Marineland attempted to be compliant with the orders, but their efforts appeared to have been woefully inadequate. In September 2021, a hand drawn map and quote for the construction of a new and expanded enclosure was submitted but did not meet the size requirements of the order. 

Eventual construction of the expanded enclosure was under 1,800 square feet, despite the order stipulating dimensions that at a minimum be 10,000 square feet. Climbing structures and water features were never provided.  

Despite serious deficiencies in the enclosures of three black bears at Marineland identified by inspectors, the park failed to fix the problems.

(Ontario Court of Justice)

With the agreed-upon statement of facts, Justice of the Peace Eileen Walker registered the conviction on the three counts that were before the court in March, with the sentencing hearing scheduled for August. 

The justice of the peace ordered that Marineland pay fines and restitution totalling nearly $85,000, consisting of three failure to comply with an order counts equalling $45,000; a 25-per-cent victim surcharge of $11,250 and restitution of $28,000 for costs incurred by the Province during the process that commenced in June 2021.

Despite the concerted efforts of animal rights activists over the years, these were the first convictions ever registered against Marineland, a fact noted by their lawyer, Michelle Psutka, at the sentencing hearing. The lawyer, while recognizing that the charges were under the auspices of legislation aimed at protecting animals, characterized the results as a “fail to comply” matter.  

Similarly, at the earlier proceeding in March, Marineland’s lawyer Scott Fenton took great pains to indicate that “it is not a guilty plea. It is simply an acknowledgement that these facts are sufficient for you (the court) to conclude reasonably, judicially, that Marineland is guilty of the three offences.”

While Marineland’s lawyers may have downplayed the severity of the charges, the justice of the peace, at the earlier proceeding, said that though PAWS considered the offences minor, the penalty structure as outlined in the legislation was “not inconsequential.”

“Provincial animal welfare legislation is now ingrained in our society. Legislation combines prohibitions preventing harm to animals with affirmative duties of care to the animals to whom the protection extends,” she added. 

To get more insight into the charges, the implications of the convictions, animal welfare legislation in Ontario and what may lay ahead for Marineland, The Pointer reached out to Camille Labchuk, Executive Director of Animal Justice, an animal law advocacy organization.

The interview has been edited for clarity:

The Pointer: Can you provide a synopsis of Animal Justice's role and insight into the recent convictions against Marineland?

Labchuk: Sure. We've been concerned and working on the Marineland file for well over a decade and have filed numerous complaints over the years about unlawful conditions at Marineland related to the enclosures that animals are kept in. Many of the complaints have focused on the marine mammals—the whales and the dolphins. We've also been very concerned about the bears for some time and filed complaints, regarding bears with gashes on their faces, who live in a very inadequate, as we see it, bear pit. 

That's our history of many, many years of advocacy around Marineland and seeking law enforcement agencies to hold them to account. 

One thing that we did that was briefly successful is we filed a complaint in 2021 regarding the dolphin shows that Marineland was still hosting, despite there being a federal law saying that you could not use animals for entertainment performances.

Unfortunately, the Crown withdrew those charges and they've withdrawn every charge that Marineland has ever faced until now. What's interesting about these charges, and we did not initiate these, is that they appear to have been initiated by Animal Welfare Services (AWS).

I'm sure you've seen the documents, but essentially, AWS visited and determined that these bears were being kept in small spaces without appropriate water features and no place for them to climb. In other words, facilities didn't meet the basic biological and psychological requirements of the animals. 

They gave Marineland many, many chances to remediate the situation. Far more chances than I would have given them had I been in charge. Marineland failed to take action every single time, so eventually they seized the bears and charged Marineland with failing to comply with the orders that they'd issued. That's what landed us in court. 

Interestingly, although Marineland did not officially plead guilty, they basically didn't contest the charges. They were found guilty in the winter and the sentencing hearing took place just last week.

A bear at Marineland with visible scarring on its face. A staff member told Animal Justice the gash was a result of fighting between the animals in the small enclosure.

(Animal Justice)

The Pointer: Why do you think these charges stuck while other cases in the past, with possibly even more egregious circumstances, did not?

Labchuk: That's a great question and it's something that I really mulled over for a long time and finally figured it out during the hearing. 

The reason that these charges stuck is because they were really easy to prove. The Crown essentially only had to prove that authorities lawfully issued an order to Marineland to do something, and Marineland failed to do that thing. 

In this case, the order was to improve the conditions and Marineland didn't improve the conditions. The other times that they've been charged, the charges focused on acts that Marineland had done to animals—things like not providing adequate food or water or care or medical attention, or by forcing animals to perform for entertainment when that's unlawful.

In the past, Marineland fought hard every time that they had an opportunity, and they made it clear to prosecutors that they would be in for a long, contested trial, where they would use their enormous economic power to bring every possible motion and application that they could to delay things and to try to defend themselves. 

The Crown attorneys, I think they're understandably strapped for time, strapped for court resources and didn't have the appetite for that fight. 

In this case, there weren't many defenses left for Marineland. Either they did or didn't comply with the orders and it was very, very clear on the evidence that they did not. 

Marineland did try to bring a weird, abuse of process type of motion that everybody thought was doomed to fail. And it did fail. As soon as that was lost, they pleaded guilty. I think they just saw the writing on the wall at this point. They knew they didn't have any grand motions to bring to delay this case. There were simply very few options open to them to wiggle out of the charge at this time.

The Pointer: Mr. Holer died in 2018. Has Marineland’s desire to fight various legal issues dissipated with his passing? 

Labchuk: We didn't see much of a dissipation after Mr. Holer passed away in terms of their will to stay open and their will to stop any laws from passing to protect animals. The whale and dolphin bill at the federal level, the ban on keeping those animals in captivity, passed in 2019 and right up until the very last moment, Marineland's lawyer, Andrew Burns, was testifying. He was lobbying. He was doing everything that he could to stop that bill from passing and eventually they lost. I didn't see any abatement by Marineland in protecting its own interests against those who are concerned about the welfare of the animals. 

I think at this stage, it is possible things have finally started to shift just based on the rumors and speculation (about the future of Marineland). I don't think anybody truly knows what's going on inside Marineland. There are almost no cars in the parking lot. I stopped there after court the other day and the parking lot was practically empty, and we hear that's been the case throughout the summer. The tickets are a pittance. They're only $15, right? There's almost nothing that you can see there. We sent somebody there to investigate, and there was very little access to any of the areas in the facility. So, maybe they are finally starting to acknowledge the writing on the wall and are just preparing to sell and close the facility at this point, which I think is the only sensible business option still available to them.

The Pointer: What has been the modus operandi of Marineland over the years, when faced with inspections and orders from animal welfare officers? I got the impression from the agreed-upon statement of facts that they may have been trying to give the impression that they were attempting to comply, but really weren’t, especially regarding their construction of the bear enclosures. 

Labchuk: I think this is par for the course with Marineland. The way I would describe their attitude towards these types of issues over the years is arrogance. They think that they should be allowed to do whatever they want, the law be damned. 

They were given very clear instructions to provide adequate space, appropriate water and climbing spaces for the bears, and they continued to ignore those orders. The only word in my head for that is arrogance and I guess the second word would be contempt.

The Pointer: At the sentencing, Marineland's lawyer was stressing that this was a fail to comply case, not a case of a finding of animal cruelty. What is Animal Justice’s reaction to those comments?

Labchuk: She (Marineland’s lawyer) made that submission and, of course, it is technically true. This is a fail to comply case. There has been no technical finding of distress, but the reason that the orders were issued in the first place is because authorities believed there was distress. She can use the technical language if she'd like. Marineland can cloak itself in technicalities, but I think everybody knows that Marineland is a den of animal suffering. 

Marineland's lawyer also made the submission that this was a first offence for Marineland. Of course, whether something is a first or a second or third offence is relevant to the sentence that someone will get. Again, it is technically true, but everybody knows that while Marineland may never have been found guilty (previously), they have been unlawfully abusing animals there for decades.

Orders under section 30(1) of the Provincial Animal Welfare Services Act are issued when “an animal welfare inspector has reasonable grounds to believe that an animal is in distress.” It was under this section of the legislation that Marineland did not comply with and resulted in the three convictions. 

The Pointer: Animal Justice filed for intervenor status for the sentencing hearing, but the Justice of the Peace ruled against the request. Do you foresee doing that again in the future? What was the rationale for doing it from an organizational point of view and were you disappointed by the decision or did the end results of the convictions make up for it?

Labchuk: We were disappointed that we weren't granted leave to intervene in the case because we think we had something unique to contribute. The justice of the peace thought differently and we respect her ruling. 

I think what wasn't considered in the case by prosecutors and what might have been considered had we been allowed at that table, was whether Marineland should be hit with a prohibition order on owning animals or acquiring future ones, and whether they should be subject to probation so that there can be ongoing monitoring of conditions regarding bears or any other animals. Those are types of remedial measures that are really important to the wellbeing of the animals who are still there.

The way the sentence was crafted, it was more about giving a fine and reimbursing the government for what the government had to do, but there wasn't much in the penalties that will help the animals in the future. That’s what Animal Justice wanted to bring to the case, and we do intend to continue applying to intervene in cases where we think we can bring something to the table like that.

The Pointer:  At the March hearing, there was an indication that Marineland might appeal. They seemed to be arguing that the revocation of the order, after the removal of the three juvenile bears, “disentitles” the Ministry to a conviction. Does Animal Justice anticipate an appeal?

Labchuk: At this point, the appeal window has closed. Part of that whole agreement, I guess, was for them to be able to say they didn't technically plead guilty or say, “yeah, we did it”, but now that the sentence is imposed, the case is officially over.

The Pointer: The original inspection of Marineland by AWS was back in the summer of 2021, and it is now three years later. You inferred that a lot of chances were provided by the animal welfare officers to Marineland. Is three years typical?

Labchuk: I'll answer the second part first, which is I think the process could have been made more timely. I don't think there's any reason Marineland should be given that much time to comply with the orders. It's a simple matter. If they refuse to expend the resources to continue on with their business and comply with the laws, then they shouldn't be allowed to engage in that type of business, i.e. keeping those animals in captivity. 

As far as what we may or may not know about whether that's typical, we know almost nothing about how animal welfare services operate because it's a very, very opaque, non-transparent agency. They don't have a website, they don't issue statements to the media, they don't speak about their cases or prosecutions. There are no reported decisions of cases under the Provincial Animal Welfare Services Act. We don't really know what AWS has been up to, so we don't know if this (the Marineland case) is typical or not. I think the lack of transparency is a really significant problem for democracy.

The Pointer: The (PAWS) legislation speaks to appeals to a Board. Is that process more transparent?

Labchuk: I believe that would be the Animal Care Review board, a tribunal that's set up essentially to hear appeals from owners of animals who had had their animals seized.

It is somewhat transparent. I would say that's really the only aspect of transparency in the entire animal welfare system that we have. If someone does appeal an order for removal of the animals, then that becomes part of the public record and is one of the only times that we get any information whatsoever.

The Pointer: Marineland didn't appeal the order related to seizure of the bears?

Labchuk: No, they did not and no one knows why. I can speculate that perhaps they didn't want this information to be made public, but we don't know for sure.

The Pointer: You mentioned that occasionally Animal Justice will register complaints, though that wasn't the case with the juvenile bears at Marineland. How has enforcement been like as far as the complaint process? Is enforcement still lax in the field?

Labchuk: Yeah, that is actually a great question because I do have quite a lot to say on this. We filed so many complaints against Marineland. Let me just share a couple of notable examples. They involve Kiska, the orca who unfortunately passed away in March of last year.

Before Kiska died, she was suffering tremendously. There was video after video that showed her bashing her body against the side of the tank, circling her tank, or floating there listlessly. All signs of extreme psychological torment brought along by being confined in solitary captivity for more than 13 years. 

Footage captured by Animal Justice showed Kiska, a captive orca at Marineland, bashing her body against the side of her tank in a clear sign of distress. The orca passed away in March last year after spending 13-years alone in her tank.

(Animal Justice)

The authorities refused to tell us what they were doing with our complaints. When we tried to file access to information requests to learn more, they denied those requests because of quote, unquote “ongoing investigations”. 

There's information to suggest that they've been at Marineland dozens and dozens of times over the years, but there's no information on what they've done, if anything, and why they haven't charged Marineland with animal cruelty for the conditions that they kept Kiska in.

The Pointer: You mentioned that the process surrounding PAWS is opaque, but has the legislation helped at all? Are there obvious improvements that could be made?

Labchuk: I think the legislation fundamentally is not bad in a lot of ways. It fails in many areas, like it fails to regulate the use of animals. 

One thing I would really advocate for that could have helped in this case is a licensing system. There's no licensing system for any animal activity in Ontario—that includes roadside zoos, aquariums, puppy mills, you name it. You don't need a license to do whatever you want to do to animals. 

I think if Marineland had been licensed and regulated and had standards that they had to follow that were enshrined in the legislation, then that would have been a huge thing in this case. Instead of going through this process of orders, the authorities could have simply revoked Marineland's license until they complied and shut them down. It’s a much more elegant, quick tool to assure compliance with standards in a regulated industry. It would be a huge benefit or positive to have that (a licensing regime).

The Pointer: What about the proposed Jane Goodall Act? I know that's federal, but what is your organization's position on the possible enactment of that legislation?

Labchuk: Obviously, we are very supportive of banning the keeping of elephants and great apes in Canada and restricting them in the same way that the bill in 2019 restricted whale and dolphin captivity. It's really important. I think one of the reasons that the Feds have been forced to act in this regard is because there's really inadequate provincial legislation across the country, and especially in Ontario, where there just are no zoo regulations. 

If Ontario was in a position where it wanted to ban the keeping of animals like elephants or gorillas or big cats or other animals, who just aren't appropriate for captivity, perhaps we wouldn't need this federal bill. But, at the moment, we do.

The Pointer: You used the word “shift” earlier. Is Animal Justice sensing a shift? Is there a growing knowledge and greater sensitivity to animal welfare issues by those in authority (the Crown, inspectors, the Police)?

Labchuk: I think there absolutely is. It's an important question. We've seen that both in terms of the seriousness with which courts and authorities are taking these cases. I don't think it's serious enough yet. As I mentioned, PAWS still has a very long way to go, but I think it reflects shifting attitudes among the population. 

If you look at polls now, most people, across the country, say that they are opposed to keeping animals in zoos and aquariums, and that would not have been the case 20 years ago. The more people hear these stories about places like Marineland, the more they just think this is not okay anymore in 2024.

That's why Marineland’s parking lot is so empty.

The Pointer: One of the postings on the Animal Justice website referred to Marineland as a “House of Horrors”. Pretty evocative wording. I sense that Marineland is in some ways, pun intended, the “white whale” of animal welfare matters. Even if the operation is on its last legs, is there anything else that Animal Justice feels still needs to be done vis a vis Marineland? Obviously, you talked about the lack of prohibition order with the recent bear case. Is there anything from your organization's perspective that you'll be doing to keep Marineland accountable?

Labchuk: Absolutely, there is. I think one of our biggest fights on Marineland is still to come. What are they going to do with the animals when they inevitably do close. They still have 30-plus whales. They have, I think, four dolphins who are still surviving, though animals are dropping like flies there, so I'm sure some will die soon. That still leaves dozens of marine mammals to find homes for. 

They apparently still have the bears, so I'm told. I don't know about the rest of the animals. I've heard that they somehow disposed of the buffalo, and I don't know where they've gone. The many, many animals still at Marineland, are going to need a place to live if they close and I am very concerned about what Marineland plans to do with them. There's been no transparency there. 

At this point, we think it's important for the government to step in and have a role to make sure that as many, as possible, of these animals go to sanctuaries rather than subpar facilities. If they do have to be transferred to other zoos, ensure that those zoos are among the better ones and not some of the worst ones, and ensure that they certainly have higher standards than Marineland, although it would be difficult to have lower standards than Marineland. 

So, yes, at this point, we don't know what Marineland might want to do with the whales and dolphins. Everyone suspects they'll try to sell them off to another country, because that's really one of their only options here but there is a sanctuary for whales opening up in Nova Scotia, as soon as next year, and we think that is a tremendous option for the belugas. The sanctuary could not take all of Marineland’s belugas, but we believe it could take some of them. That should be the first consideration as far as where they go, and then finding as good as possible homes for the rest. 

The Pointer: Are there any other facilities specifically in Ontario that have Animal Justice's attention that you're looking at closely?

Labchuk: Oh, absolutely. There are too many to list, frankly, because Ontario is the roadside zoo capital of the country. We've just allowed roadside zoos to flourish here because there's no legislation and no licensing for zoos. 

There are facilities all over the province, that includes places like Papanack outside of Ottawa, Bervie in Kincardine, the Jungle Cat World in Orono, Safari Niagara. 

There are a variety of places that we believe do not keep animals in adequate conditions and Animal Justice has been advocating, as have other groups, for a very long time, for Ontario to pass actual laws. That's something I think at this point that just needs to happen.

The Pointer: One final question. Do you believe this is the last summer for Marineland? 

Labchuk: I do, I do. I think the writing's on the wall for animal cruelty. People don't want to pay for it anymore. They don't want to fund it. They don't want to support it. And with Marineland opening at drastically reduced hours this year, it doesn't seem to me like there is any future beyond the end of this season.

Email: [email protected]

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