The current animal protection law enforcement regime in Ontario has been ruled to be unconstitutional by the Superior Court of Justice.
The court struck down the province’s current regime Jan. 2 in a Kingston court in Bogaerts v. Attorney General of Ontario, declaring that it is unconstitutional for the Ontario Society for the Prevention of Cruelty to Animals, a private charity not subject to reasonable oversight measures, to enforce public animal protection laws.
Unlike the majority of SPCAs across Canada, the OSPCA is both government funded and also privately funded by donations. The OSPCA, a charity, holds law enforcement powers, without the same transparency and accountability a public or government agency has.
“There's a bit of a divide within the animal protection movement,” says Rebeka Breder, a Vancouver-based animal law lawyer at Breder Law. “I think the concern here is that if you're going to have someone's property being searched and someone's property, like animals, being taken away, then those powers should be [given to] the government and not a private organization that's not subject to freedom of information requests. There's very little transparency and arguably, perhaps even accountability, because it's a private non-profit organization.”
The sections of the Canadian Charter of Rights and Freedoms in question are sections 7 and 8 (concerning individual autonomy and unreasonable search and seizure, respectively). While the decision states there is no direct charter violation of the distribution of legislative powers and “specific warrantless search and/or seizure powers” in the OSPCA Act, Justice Timothy Minnema wrote in his decision that assigning “police and other investigative powers to the OSPCA” violates s. 7.
As a result, the court suspended the declaration of invalidity for 12 months to provide Ontario time for restructuring its animal protection regime to ensure the desired accountability needed to operate with having such a public function. Minnema wrote that it would be “an untenable result” to “compromise animal welfare for even a transitional period” of time as the province “considers its next step.”
The Canadian animal law organization, Animal Justice, intervened after the case’s hearing last May and argued that in order for animals to maximally benefit from legal protections, the enforcement agency needs to be transparent.
"Animal protection laws are the only laws still enforced by private agencies, and the court ruled that private enforcement without transparency and accountability is unacceptable," said lawyer Camille Labchuk, executive director of Animal Justice, in a press release statement.
While Breder says she agrees that in most cases, private organizations shouldn’t possess government-like powers to enter a person’s property and seize their belongings, finding the OSPCA’s powers completely unconstitutional could lead to a slippery slope for other SPCAs nation-wide.
“The SPCAs across the country should remain having the powers that they do to investigate animal welfare and cruelty concerns because [due to] a lack of financial and human resources it means they're in the best position to look into these issues and to deal with them,” she says. “If we just left it up to the government, I think we would be seeing significantly less animal welfare issues being investigated.”
Suzana Gartner, mediator and founder of Toronto-based Gartner & Associates Animal Law, says she agrees with Breder’s sentiment.
“This [decision] is like a win-win for everybody in my view because if they're given an opportunity to restructure their enforcement regime and to be accountable and transparent, I think that's going to help the province. It can help them mandate their policing powers,” Gartner says.
Legal Feeds contacted Daniel Huffaker, a lawyer representing the Attorney General of Ontario, in Bogaerts v. Attorney General of Ontario. A ministry media representative, Philip Klassen, declined comment, stating via email: “We are currently reviewing this decision. As this matter is in the appeal period, it would be inappropriate to comment further.”
On Jan. 4, OSPCA general counsel Brian Shiller sent an email statement to media outlets clarifying the role of the OSPCA in this case. “There was no allegation that the Ontario SPCA was at fault for anything regarding the subject matter of the application and the court did not criticize any conduct on the part of the Ontario SPCA in its administration of the Ontario SPCA Act,” he said. “Rather, the court created a new legal principle and used it to rule that it was unconstitutional for the Province of Ontario to enact legislation that permits a private charity to have policing powers in the absence of government oversight.”
It is not known whether the decision will be appealed.
Story updated to reflect statement by OSPCA general counsel Brian Shiller on Jan. 7, 2019.