Court Declares OSPCA Enforcement Powers Unconstitutional by J. Paul Stevens

The Ontario Superior Court released an important decision on January 2, 2019 concerning the Ontario Society for the Prevention of Cruelty to Animals (OSPCA).  Justice Timothy Minnema declared that some sections of the OSPCA Act violate the Canadian Charter of Rights and Freedoms.

The OSPCA has been given the responsibility to enforce animal welfare legislation in Ontario; however, there is concern that it oversteps its intended role.  Over the past couple of decades there have been many reports in the media of excessive measures taken by the OSPCA against farmers and hobbyists keeping animals. Although the OSPCA is a private organization, the Act gives it search and seizure powers that go beyond even the powers of the police, but without accountability and transparency. A constitutional challenge was launched by Jeffrey Bogaerts in 2013 in response to citizens’ concerns about OSPCA actions taken against them. The challenge was launched in cooperation with the Ontario Landowners Association (OLA) who also provided funding. The OLA was deluged with complaints of aggressive and abusive behaviour by OSPCA officers and inappropriate seizures of birds and other livestock.

Kurtis Andrews is an Ottawa lawyer with considerable experience in animal welfare issues. Mr. Andrews represented Mr. Bogaerts and the OLA on the constitutional challenge in the courts. There were three main questions the Court was asked to consider.

1. Does the OSPCA Act breach section 7 or section 8 of the Charter by granting police and other investigative powers such as search and seizure to a private organization? Does it breach the Charter by granting those powers to the OSPCA without adequate legislatively mandated restraints, oversight, accountability and/or transparency?
2. Does the OSPCA breach the Charter by authorizing unreasonable (including warrantless) searches of people’s homes and farms and seizures of their animals without any or adequate judicial authorization or oversight?
3. Does the OSPCA Act fall outside the province’s jurisdiction by being criminal in nature and therefore within the exclusive jurisdiction of the Parliament of Canada?

In answer to the first question, Justice Minnema agreed that it is unconstitutional under section 7 of the Charter for the province by way of the OSPCA Act to grant police and other investigative powers to a private organization and to the OSPCA in particular. The judge noted that every OSPCA inspector has the powers of a police officer, not just with respect to the OSPCA Act that includes incarceration, but also with respect to the Criminal Code provisions pertaining to the welfare of or prevention of cruelty to animals. Justice Minnema proposed a principle of fundamental justice that law enforcement bodies must be subject to reasonable standards of transparency and accountability.  In his ruling the judge also expressed concern about declaring the OSPCA Act invalid immediately since it could deprive animals of the protections they currently receive. He therefore suspended the declaration of invalidity for one year to provide the provincial government sufficient time to consider different options available to make the legislation compatible with the Canadian Charter of Rights and Freedoms.

Although to most people the answer to the second question would also be yes, the Court found this issue to be more complicated. According to Section 7 of the Charter, “Everyone has the right to life, liberty, and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Section 8 is also in place to ensure “Everyone has the right to be secure against unreasonable search or seizure.” Determination of whether a search or seizure was reasonable according to section 8 is a two-step process and first a reasonable expectation of privacy under section 7 must be made. With regard to unreasonable search or seizure, the judge concluded that a reasonable expectation of privacy for the type of searches permitted by the Act has not been established and therefore they failed to establish that these sections of the Act are unconstitutional. The chance of getting a favourable ruling against unreasonable search or seizure was made more difficult by an intervener who was arguing against any restrictions on the search & seizure powers of the OSPCA. In April 2018, Animal Justice, an animal rights organization was granted permission to intervene in the case as a friend of the Court.

On the third issue Justice Minnema concluded the OSPCA Act is about animal protection and the prevention of cruelty to animals, not criminal law and therefore he concluded that the province does have jurisdiction.

Over the next year the Ontario government will need to decide how to re-write the OSPCA Act and consider whether a government agency might be chosen to enforce our animal care legislation.  The Ontario Ministry of Agriculture, Food & Rural Affairs (OMAFRA) already has some enforcement responsibilities. Another possibility might be to appoint OSPCA officers by the provincial government which would provide oversight and accountability. As stakeholders it will be important to follow progress on the changes to the legislation and we should be prepared to offer input. Animal rights groups such as Animal Justice want to see more robust animal welfare legislation with increased enforcement powers.

Farmers, poultry fanciers, aviculturists and other hobbyists keeping animals need a legislative environment that promotes the care and welfare of animals while recognizing the interests and rights of citizens.  Share your thoughts, concerns and suggestions with your Member of the Provincial Parliament (MPP) on the development of effective and appropriate animal welfare legislation for Ontario.