The minute Darwin the monkey made his great escape from Yasmin Nakhuda's car at the Toronto furniture store in December she lost any ownership claim to him, Ontario Superior Court Judge Mary Vallee found.
"(Case law) states that the nature of an animal, rather than how it is treated, determines whether it is wild," Vallee wrote in her decision.
"The monkey lived in Ms. Nakhuda's house. He wore clothing. For a time, he slept in Ms. Nakhuda's bed. These attempts at domestication were imposed on him."
But Darwin bit people, Nakhuda's husband especially, and could not be house broken so he had to wear a diaper. He wore a harness most of the time so he couldn't run away.
"I have no hesitation in finding that this monkey is not a domestic animal," Vallee wrote.
When Darwin escaped at the Ikea store he was scooped up by animal services at sent to Story Book Farm Primate Sanctuary in Sunderland, Ont. Nakhuda sued the sanctuary in a bid to get Darwin back.
Since Darwin was not a domestic animal, a wild animal legal principle must apply that says a person only owns a wild animal for as long as it is in their possession, Vallee found.
In other words, once a wild animal kept as a pet runs away, it no longer legally belongs to its former owner.
That principle dates back to 1917 and was the only case the lawyers could find that dealt with the ownership of a wild animal that has escaped.
Although that case is nearly 100 years old, the principle still applies, Vallee wrote.
"Some people do keep exotic animals as pets," she wrote. "A high onus regarding provision of secure housing for wild animals is appropriate to place on their owners. Wild animals, particularly exotic ones, can be dangerous to the public."
It's an issue that will resurface, predicted Kevin Toyne, the lawyer for the sanctuary.
"I think that as more and more people acquire exotic animals and treat them as pets you're going to see more cases like this," he said in an interview.
"As these cases go to court some of these areas that weren't really addressed in this case will probably be addressed by the courts. Whether or not the provincial government or the federal government steps in to pass legislation that would change the law, I really don't know."
Nakhuda's lawyer's office said she would not be commenting on the decision Friday. After she lost previous interim bids to get Darwin back, Nakhuda left court distraught.
She recently got a tattoo, a picture of which is posted on her supporters' Facebook page, of an image of Darwin in the shearling coat he wore during his Ikea parking lot romp and the words "My Monkey" in script.
Sanctuary owner Sherri Delaney was also not available for an interview, but her lawyer said Darwin will stay, at least for now, at Story Book, where he is interacting with other primates and receiving high-quality veterinary care.
The case was not about what is in the best interests of the monkey, Vallee wrote.
"The monkey is not a child," she wrote. "Callous as it may seem, the monkey is a chattel, that is to say, a piece of property."
Nakhuda had argued that animal services tricked her into signing a form surrendering her ownership of Darwin.
But Vallee found that Nakhuda was "upset, but was not unduly influenced" when she signed the form. She is a lawyer with 20 years of experience and would have understood what she was signing, Vallee wrote.
"She signed the form more likely because she knew that she had been caught with an illegal animal rather than as a result of experiencing any duress," Vallee wrote.
Court heard that even though the monkey is a prohibited animal in Toronto, animal services has no authority under the bylaw to refuse to give it back to its owner. The city is looking at amending this, an animal services supervisor testified.
But Vallee found that animal services was entitled to detain Darwin in its discretion under the bylaw. Concerns about an illegally imported monkey potentially having a communicable disease were good reasons to refuse to return Darwin to Nakhuda when she tried to claim him, Vallee wrote.
The judge also noted contradictions in Nakhuda's evidence about whether she paid for Darwin or he was a gift, saying it undermined Nakhuda's credibility.
Nakhuda eventually admitted she paid for the monkey but maintained he was a gift because the seller offered to refund her money after the escape. The man, known only as Ayaz, hadn't given Nakhuda a refund as of the trial, Vallee said.
"Ms. Nakhuda's maintaining the monkey was a gift shows that she was prepared to embellish the facts to improve her legal position," Vallee wrote.
"The fact that she had bought the monkey from a shady exotic animal dealer for $5,000 changes the complexion of the matter."
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