The Ontario government has been given a year to revamp legislation governing inspection of complaints and enforcement of orders related to animal welfare, following a ruling on Jan. 2 from Justice Timothy Minnema of the province’s Superior Court.
Barring an appeal by the province’s Attorney General, the revamped legislation must create a framework of inspection and enforcement that includes reasonable oversight and accountability. The absence of such oversight, Minnema ruled, places the current Ontario law in contravention of the Canadian Charter of Rights and Freedoms.
Why it matters: Farmers have been subject to OSPCA actions, but haven’t had the same recourse they would have with other enforcement organizations like the police, because the OSPCA is a charity.
Minnema’s ruling, issued in the town of Perth, stems from an application first submitted in October, 2013, by paralegal Jeffrey Bogaerts, and later joined by prominent Ottawa-based animal welfare law specialist Kurtis Andrews. Also seeking and being granted intervener status in the case was activist organization Animal Justice.
“When I look at the OSPCA,” Andrews said, “I see an organization given its powers based on an old, antiquated piece of legislation that has been amended and changed over the years, and is now nothing more than a patchwork of elements that have lost their relevance over time.”
What does it mean for farmers?
- OSPCA will continue its work as is for now.
- The government is likely to appeal.
- Lawyers may refer to this case during animal welfare cases currently underway.
- Farmers should be active in what they would like animal welfare enforcement to look like into the future, as animal right groups also see the OSPCA ruling as a victory.
“Overall, the OSPCA appears to be an organization that operates in a way that is shielded from public view while at the same time fulfilling clearly public functions,” Minnema declared. “Although charged with law enforcement responsibilities, the OSPCA is opaque, insular, unaccountable, and potentially subject to external influence, and as such Ontarians cannot be confident that the laws it enforces will be fairly and impartially administered.”
Both Andrews and Animal Justice hailed the decision, although the Ottawa-based animal rights organization went further in its praise to also include Minnema’s findings in two other lesser-argued elements of the initial application. The judge’s ruling acknowledges the crux of the case was the constitutionality of the lack of OSPCA oversight, but also provides decisions about arguments made by Andrews and Bogaerts about the scope of search and seizure powers afforded by the law.
The animal rights organization said “the court adopted Animal Justice’s argument that search and seizure powers must be robust because of the importance of protecting animals, who are often kept behind closed doors and cannot report abuse themselves.”
Contacted by Farmtario, Andrews said he and Bogaerts agreed that, for them, the related matters in the case paled in significance to the constitutionality arguments. As such, he referred to the Jan. 2 ruling as “more or less a complete success.”
He conceded the judge also expressed an opinion different from his own regarding the problems inherent in handing enforcement powers to a donor-funded organization like the OSPCA. For Andrews, though, that too was a minor setback.
“The main issue, about which the judge agreed with our arguments, was the catalyst of the whole thing,” he said.
His initial decision to join the constitutional challenge, Andrews recalled, arose from shared experiences with Bogaerts working on animal welfare cases. “The problem, from our perspective, is that there were powers given to a private organization without specific oversight.”
The OSPCA issued a statement saying it “respects the decision of the court,” and describing the ruling as “an issue for the Government of Ontario to address.”
Andrews stressed, however, that the OSPCA had no official standing in the case; the province’s Attorney General is the respondent to the application. And “my immediate expectation is that there probably will be an appeal.” Why? Because, “generally speaking, the government likes to defend its laws. And I do believe there are broader implications (of this case) outside of animal welfare” that could fuel future challenges to other provincial legislation.
One example suggested by Andrews is the authority granted to Children’s Aid Societies to respond to complaints and enforce rulings related to child welfare in the province.
Having made his prediction about an appeal, however, Andrews noted “things have changed” at Queen’s Park – both since the pertinent legislation went through its most recent update in 2008 (at which time the inspection/enforcement role of the OSPCA was re-affirmed) and since this particular application was initiated in 2013. “So we’ll have to wait and see.”
In the meantime, the OSPCA explained in its statement, the agency “will continue to provide animal protection services while the government determines how they wish to proceed.”
As for any animal welfare cases currently before the courts in Ontario, Andrews said “the stay of the order (for a year, barring an appeal) is meaningful because it doesn’t invalidate the law retroactively.” So technically, rulings will be rendered on pre-existing precedents until the law is re-written.
That doesn’t mean, however, that the province’s legal community will be unaware of the case. Andrews revealed he currently has a client facing animal welfare charges before the courts, and he plans to at least draw on this week’s ruling in his arguments. Even if the successful constitutional challenge can’t yet be used as a precedent, he hopes he can still “appeal to the better judgment of the court” to respect Minnema’s findings as they consider the case.