UPDATED FEBRUARY 14, 2019
The landmark January court ruling concerning the 100-year-old OSPCA Act is of paramount importance to those of us working in animal welfare. What does it mean for animal welfare and animal shelters in Ontario?
Legal counsel for the case, Kurtis Andrews, and Camille Labchuk, Executive Director for Animal Justice, kindly agreed to be interviewed for this blog. I asked them to explain what this ruling means and its implications for animal welfare and sheltering in Ontario.
Who was the case against and what was it about?
The case was brought against the Attorney General of Ontario, not against the OSPCA. It argued that “the OSPCA Act breaches section 7 of the Canadian Charter of Rights and Freedoms by granting police powers to a private organization without due restraints, accountability and transparency.” The Judge agreed, and, in a strongly worded ruling, ruled that the Act is unconstitutional.
The chief complainant’s concern was the lack of access to recourse or information concerning an OSPCA investigation by the people affected. Animal Justice, which had intervener status in the case, argued that the lack of accountability and transparency also has negative implications for the interests of the animals, as the Act lacks a mechanism to ensure that animals are being appropriately protected under the law. Animal Justice point out that “animal protection laws are the only laws still enforced by private agencies”.
The Court was asked to consider whether the OSPCA search and seizure powers were too broad, and found they were not. The Judge agreed with Animal Justice that animals are special victims because they are behind closed doors and unable to report crimes themselves. Therefore, warrantless searches are necessary and justified, but accountability and transparency must accompany these powers. The Judge also found that Provincial animal protection offences are indeed criminal and do not fall outside provincial jurisdiction.
The initial application included a challenge to the definition of “distress” in the Act as being “unconstitutionally vague and/or overbroad” but this was withdrawn to maintain clarity and focus.
Has the OSPCA done anything wrong?
There was no allegation of wrongdoing by the OSPCA and no case was brought against it. The main complainant “saw the agency as a victim of the legislation, and acknowledged it may be doing the best it can under the circumstances.”
What happens next?
The Ontario government has appealed the case, according to media reports earlier this month. The current OSPCA Act remains in force in the interim. This will substantially delay resolution of the situation.
Should the appeal be overturned, the lawyers we interviewed explained that possible mechanisms to remedy the situation would be to make the OSPCA subject to transparency and accountability mechanisms provided for in the Freedom of Information Act, Police Services Act or the Ombudsman Act. Complying with this type of legislation is onerous and expensive. As a private agency, the OSPCA in its current form would have the option of refusing to take this on. Another option would be to transfer the OSPCA’s policing powers to another agency, such as the Ministry of Agriculture or the police. A third option would be a hybrid solution, where the OSPCA would continue to carry out certain functions while other functions are handed over to other agencies. An example of this model is the partnership between the American SPCA and the New York Police Department.
Implications for animal welfare and shelters
There are no immediate implications for animal welfare and sheltering. If the ruling stands after the appeal, the implications will depend on whether the Act is replaced or revised, and what the new Act looks like.
Good intentions can have negative consequences. It’s important to ensure that any legislative changes represent an improvement for animal welfare, not a step backwards. For example, in Quebec there is tremendous controversy about the effectiveness of the Ministry of Agriculture in enforcing animal welfare legislation, to the point that the Montreal SPCA has launched a “Broken Promises” campaign against the Ministry. That’s the kind of thing we definitely need to avoid in Ontario!
What should happen now?
This could be a once-in-a-century opportunity to improve key animal cruelty legislation in Ontario. Ms. Labchuk emphasized that any interested parties should make their positions known pro-actively.
- Judge finds OSPCA enforcement powers to be unconstitutional : https://www.cbc.ca/news/canada/ottawa/animals-welfare-ospca-court-enforcement-1.4964605
- About the OSPCA Act Application. https://www.fixthelaw.ca/
- OSPCA General Position Statement http://ontariospca.ca/about-us/who-we-are.html
- Court Strikes Down Ontario SPCA Law Enforcement Regime as Unconstitutional Court Strikes Down Ontario SPCA Law Enforcement Regime as Unconstitutional