The Curious Case of Darwin the Ikea Monkey
On December 9, 2012, social media was ablaze with reports of a small monkey in a winter coat and diaper, wandering around an Ikea parking lot, apparently looking for its owners. The “Ikea Monkey”, as the animal was later dubbed, entered the furniture store and was subsequently picked up by Toronto Animal Services. Darwin the Ikea Monkey quickly became the subject of international attention in the days that followed.
The sprawling saga about how the Japanese macaque ended up inside a North York Ikea that winter day, and the legal battle over who rightfully owned Darwin, culminated in an Ontario Superior Court decision released on September 13, 2013. On October 11, 2013, counsel for Darwin’s “mother” figure (a real estate lawyer herself,) confirmed that an appeal has been filed with the Ontario Court of Appeal to overturn the trial decision which awarded custody to the Story Book Farm Primate Sanctuary.
In addition to managing her own firm where she practises real estate law and business law, Yasmin Nakhuda had an interest in exotic pets. Ms. Nakhuda was interested in obtaining a baby Japanese snow macaque, after seeing a video of a restaurant in Japan using snow macaques as waiters. One of Ms. Nakhuda’s clients put her in contact with an exotic pet dealer, whose first name is Ayaz, last name is unknown.
“Ayaz” called Ms. Nakhuda and informed her that he had acquired two Japanese snow macaques. Ms. Nakhuda paid the exotic pet dealer $5,000 in cash for the younger male monkey, and no receipt was issued for the transaction.
Eventually, Nakhuda formed a close bond with Darwin; they woke up together, brushed their teeth together, and he would often accompany her to the law firm. Ms. Nakhuda likened their relationship to that of a mother and son.
On December 9, 2012, Ms. Nakhuda left Darwin in a double-locked crate, inside her locked car, as she browsed through a local Ikea. Darwin subsequently escaped from his crate and the vehicle, and waddled into Internet history wearing his made-to-fit suede coat. Unbeknownst to Ms. Nakhuda, Toronto Animal Services (“TAS”) had been called and picked up the Japanese snow macaque.
Upon discovering Darwin’s escape and capture, she frantically called Ayaz for assistance – Ayaz had previously told her that if Darwin ever escaped and was taken by animal services, he would retrieve Darwin since he had a licence for the pet monkey. However, Ayaz noticed that the “Ikea Monkey” had already been blasted all over social media, and fearing the unwanted publicity he refused to help. At most, the exotic pet dealer offered to refund the $5,000.
When she arrived at the shelter with her husband, Ms. Nakhuda was informed by the TAS officer that Darwin could not be released to her, as she did not have any proof that the monkey had been vaccinated. Under the Toronto Municipal Code, TAS has the authority to place certain animals under their protective care – and if Darwin tested positive for disease, he would be euthanized. However, the Code does not specifically give TAS the authority to seize monkeys. As such, the TAS officer endeavored to have Ms. Nakhuda voluntarily surrender the Japanese macaque. She was handed a form that stated, in plain English, her agreement in transferring ownership over Darwin to TAS. After 10 to 20 minutes, discussing it with her husband and calling a friend, she signed the form.
A few days later, Ms. Nakhuda announced in a radio interview that she would be launching a court application against Story Book Farm Primate Sanctuary (the “Sanctuary”), where Darwin had been transferred for long-term care, to have the Japanese snow macaque returned to her.
ONTARIO SUPERIOR COURT OF JUSTICE DECISION
The Ontario Superior Court of Justice (“ONSCJ”), in Nakhuda v. Story Book Farm Primate Sanctuary, 2013 ONSC 5761, ultimately rejected Ms. Nakhuda’s application.
From the outset, Justice Valee of the ONSCJ endeavoured to rely only on the principles of property law. Darwin was a piece of property, she ruled, a chattel – not a child whose best interests must be considered. Whether it was best for Darwin to remain under government care or be returned to Ms. Nakhuda was outside of the court’s focus.
Are monkeys wild or domestic animals?
Justice Valee began her legal analysis by determining that Darwin is ferae naturae (a wild animal) as opposed to mansuetae naturae (a domestic animal) under the law of property. Unlike domesticated animals, humans can only have a qualified property interest in ferae naturae, which expires once the wild animal is no longer in the owner’s possession.
In property law, it is the nature of an animal that determines whether it is ferae or mansuetae – not how it is treated by humans. Although Darwin lived in the applicant’s house, wore clothing, and occasionally slept in Ms. Nakhuda’s bed, these attempts at domestication were imposed on him. The trial judge found that Darwin still bit people, had to wear a diaper, and was confined to a harness most of the time so he could not run away. As such, and in accordance with the scant Canadian jurisprudence regarding the classification of quasi-pet animals, Justice Valee held that a monkey is a wild animal by virtue of its behaviour and qualities.
If a monkey is a wild animal, did the applicant lose her right of ownership?
Valee J. dismissed the applicant’s argument that if a wild animal was in the usual habit of returning home after it had escaped, the owner could assert a greater ownership interest in the ferae naturae. On the facts of this case, Justice Valee held that it is impossible to know whether Darwin would have returned to Ms. Nakhuda’s home, which was located some distance away from the North York Ikea, since Darwin had never escaped before.
The court also rejected Ms. Nakhuda’s argument that upon discovering Darwin was missing, Ms. Nakhuda made frantic efforts to locate her pet monkey, and as such, her immediate pursuit of the animal afforded her a superior property interest to that of TAS’ theft. However, Valee J. held that TAS had merely responded within its municipal authority to a complaint about a monkey entering the Ikea. The City of Toronto’s governing bylaws allow TAS to place an animal into protective custody at the discretion of the TAS Executive Director – a concern about an illegally imported monkey having communicable diseases is a sufficient reason for the TAS to invoke its discretion. Without a theft of property, the criminal law doctrine of immediate pursuit was inapplicable.
Justice Valee further dismissed Ms. Nakhuda’s argument that ownership over a wild animal is not lost until the ferae naturae regained its “natural liberty” in its natural habitat. The court was of the opinion that Darwin could not regain his natural liberty unless he was taken overseas, to where his species exists in the wild.
The court went on to dispose of the other issues raised by Ms. Nakhuda. Valee J. held that the common law relied upon by the respondent Sanctuary was not ousted by the statutory provisions of the City’s bylaws, as they were not mutually exclusive. Justice Valee ruled that the monkey was not a gift to Ms. Nakhuda as she had previously asserted in media interviews, given that she paid $5,000 to Ayaz. Ms. Nakhuda was also found to have sufficiently understood the TAS form that she signed, transferring ownership of Darwin to the City of Toronto, and that she was not unduly influenced into doing so.
“There are two means of refuge from the miseries of life: music and cats.”
– Albert Schweitzer, quoted by the Superior Court of Los Angeles County in Nahrstedt v. Lakeside Village Condominium, (1994) 8 Cal. 4th 361.
In the “watershed case” Niagara North Condominium Corp. No. 46 v. Chassie, 1999 CanLII 15035 (ON SC) [see Westlaw annotation of same by Jeffrey W. Lem, 1999 CarswellOnt 932], Justice MacDonald of the Ontario Court of Justice, General Division discussed at length the therapeutic value of pet ownership.
There is little dispute that caring for a pet can have immense value for certain individuals. In the weeks that followed Darwin’s escape and capture by TAS, Ms. Nakhuda took to the airwaves to publicize her plight as a “mother” without her “son”. Indeed, Ms. Nakhuda’s Youtube account contains several endearing home footage videos of her interactions with Darwin. However, it is precisely society’s significant worth afforded to pet animals – even quasi-pet animals like Japanese macaque monkeys – that favours Darwin remaining with the Sanctuary. Section 6 of the Standards of Care regulation to the Ontario Society for the Prevention of Cruelty to Animals Act, RSO 1990, c O.36, states:
6. Every primate kept in captivity must be provided with, (a) daily interaction with a person having custody or care of the primate; (b) a varied range of daily activities, including foraging or task-oriented feeding methods; and (c) interactive furnishings, such as perches, swings and mirrors.
Although Justice Valee declined to take into account the best interests of the “chattel property”, this author contends that the Story Book Farm Primate Sanctuary is in a substantially better position to offer the standard of care required for Darwin. According to counsel for the Sanctuary, since being placed under Story Book’s care, Darwin has been able to interact with other primates and receive high-quality veterinary attention – things that likely would have been difficult for Ms. Nakhuda to arrange at home.
Moreover, the dangers inherent in keeping illegal animals have been recently highlighted by the killing of two New Brunswick boys by an illegal African rock python in August this year. The banned animal escaped its glass enclosure inside an exotic pet shop and killed a 4-year-old and a 6-year-old during a sleepover with the owner’s son. Ms. Nakhuda herself was concerned that as Darwin grew older and his adult canine teeth came in, the damage from his bites would become more severe. The presence of her children in the same home as Darwin, alongside the macaque’s risk of contracting a communicable disease, poses an additional consideration against returning custody to Ms. Nakhuda.
Nonetheless, the Nakhuda v. Story Book Farm Primate Sanctuary decision adds to the sparse Canadian jurisprudence on ownership rights over quasi-pets. It will be interesting to see if Ontario’s highest court decides to review the law of property and Justice Valee’s reasons at length in order to find a palpable and overriding error (if any), or simply dismisses the appeal.
If the judicial route fails, perhaps Ms. Nakhuda can try the avenue of public pressure.
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