OTTAWA—An Ontario court has struck down the province’s animal protection law enforcement regime, declaring that it is unconstitutional for the Ontario SPCA—as a private charity not subject to reasonable oversight measures—to enforce public animal protection laws. The Superior Court decision was released yesterday in Bogaerts v. Attorney General of Ontario, a constitutional challenge to Ontario’s provincial animal welfare laws and the way they are enforced.
The decision recognized a new principle of fundamental justice, declaring that under section 7 the Charter of Rights and Freedoms, it is unconstitutional for the province to assign police and other investigative powers to a law enforcement agency not subject to reasonable standards of transparency and accountability. The Ontario SPCA is not subject to freedom of information laws or the Police Services Act that apply to other law enforcement bodies.
Animal Justice, a national animal law organization, intervened in the case to argue that enforcement agencies must be accountable and transparent to ensure animals benefit from legal protections. Animal Justice shared many of the applicant’s concerns over the transparency, oversight, and accountability of animal law enforcement. The court agreed with Animal Justice’s contention, noting, “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. As stated by the intervener, 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.”
The Court suspended the declaration of invalidity for 12 months to give the province time to devise a new animal protection regime, stating it would be “an untenable result” if a void of enforcement compromised animal protection even for a transitional period.
The Court also considered whether Ontario SPCA search and seizure powers were too broad, and whether provincial animal protection offences are truly criminal in nature and fall outside provincial jurisdiction, but found that powers and jurisdiction were both appropriate. In particular, 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.
“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.” Animal Justice’s key concern is ensuring an accountable, well-funded enforcement system that protects animals to the maximum extent possible. The province of Ontario will now have an opportunity to revisit provincial animal law enforcement, and Animal Justice will support a system that puts animals first.”
The case was argued on May 16, 2018 in Perth, Ontario. Animal Justice was represented by lawyers Arden Beddoes of Arvay Finlay LLP, and Benjamin Oliphant of Gall Legge Grant Zwack LLP. It is unknown whether the decision will be appealed.
The decision in Bogaerts v Attorney General of Ontario 2019 ONSC 41 can be found here.
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