By Connor Lynch
PERTH — Before construction must come demolition. Out with the old, in with the new. After five years of battling, the Ontario Landowners Association (OLA) may finally get the chance to take the hammer to the Ontario Society for the Prevention of Cruelty to Animals (OSPCA) Act.
The feisty landowners launched a charter challenge in 2013 and finally got the time of day in a Superior Court of Justice in the town of Perth on May 16. About a dozen landowner members and people sympathetic to the cause watched the mechanics of justice from hard-wooden pews.
Arguing for the landowners, well-known Ottawa farm lawyer Kurtis Andrews charged that the OSPCA Act violates the Canadian Charter of Rights and Freedoms, the bill that protects political and civil rights. It violates the charter because it creates a private animal police force that relies on donations, making it dependent on its donors and creating a conflict of interest. That breaches the charter because it makes the OSPCA accountable to its donors. It’s a powerful allegation that could see the underpinnings of the OSPCA Act torn up. The Act also violates the charter by granting the OSPCA search and seizure powers that sometimes go beyond what the police can do.
These breaches are exacerbated by the secrecy the OSPCA operates in. It is not subject to Freedom of Information requests, so the public can’t find out any information about its policies or conduct unless the OSPCA wants to give it out. It is not subject to the Police Services Act, despite explicitly having police powers. It polices its own officers, and sets its own policies, without any public oversight. Ontario police don’t do that; an independent review board was created in 2007 to handle complaints against the police. The public cannot be confident that the OSPCA is doing its job; they have no way of even knowing what the OSPCA is even doing, Andrews argued.
The OSPCA has extraordinary powers. It can give itself ongoing, limitless warrantless entry, which also violates the charter, Andrews argued. In the case of Iroquois-area beef farmer Ralph Hunter, his property was visited over 100 times between 2005 and 2009 by the OSPCA, he said in a statement of claim in 2011. The OSPCA can issue orders that can exist indefinitely, and may exercise its own discretion in determining if an order was complied with. If someone wants his privacy back, he has to apply for it from the courts.
With its extraordinary powers and conflict-of-interest, the OSPCA Act is an outlier; no other province has a private organization with this much power and independence enforcing legislation, Andrews said.
Lawyer Daniel Huffaker, defending the province and its law, argued that either Andrews had failed to meet certain legal tests, or certain powers of the OSPCA were necessary for it to accomplish its mandate. Huffaker flatly rejected the conflict-of-interest argument.
The only way to claim a charter violation like Andrews was, Huffaker argued, was to claim that someone had been subjected to an extraordinary level of State-induced stress. But that in this case, nobody had been, Huffaker argued. A chorus of groans and dark mutterings erupted. The OSPCA has a poor reputation in farm country, and many farmers have a story of someone whose life was turned upside down by the organization investigating or charging them. Chesterville dairy farmer David Robinson spent 2012 fighting the OSPCA in court over 13 charges that were dropped by the end of the year.
A former tradesman, Andrews compared the Act to a building. “It was built on faulty foundations,” and cannot hold up the extreme weight of its responsibilities, lacking both secure public funding and accountability. “It’s time to jack up the legislation, and build a new foundation.”
If the OLA and Andrews are successful, the province would have to write new rules to govern the animal police.
Justice Timothy Minnema, having sat through five hours of technical arguments delving into the depths of regulation and sub-regulation, reserved his decision for a later date. “I’d like to give you a sense of my deadline,” he said. “For now, all I’ll say is, as quickly as possible.”
Said Jeffrey Bogaerts, who launched the case on behalf of the landowners: “We’re hoping for a Christmas present.”