By Connor Lynch
PERTH — The Ontario Landowners Association’s legal challenge that could cripple the policing powers of the Ontario Society for the Prevention of Cruelty to Animals (OSPCA) will finally have its day in court.
The landowners argue that the search and seizure powers of the OSPCA go beyond what even the police are allowed to do and that is unconstitutional, said Ottawa-based ag lawyer Kurtis Andrews. The OSPCA had $18 million in revenues in 2016. About $7 million came from donations, while $5.3 million came from provincial grants.
The OSPCA is a private company but has police powers and answers largely only to itself, the landowners’ court filing said.
If successful, the challenge would be a powerful blow to the OSPCA. “It would mean that they would no longer be able to investigate or enforce animal law in Ontario,” Andrews said.
The constitutional application was submitted last month to the Superior Court of Justice in Perth. “The OSPCA Act is fundamentally flawed insofar as it arbitrarily discards a traditional law enforcement model, and all of the inherent benefits that come with it, in favour of assigning police powers to an independent organization,” the application reads.
The original application was filed five years ago but has had to be pared down to meet court demands.
OLA president Tom Black said the application has already started to pay off for farmers and property owners across the province as OSPCA officers are now treating landowners with more respect. Three years ago, Black said he was constantly fielding calls from “people getting attacked by the OSPCA. And that’s virtually stopped.”
He added that this change shows how important it is to make a legal challenge to the law so that the OSPCA “can’t just keep abusing you,” Black said.
The need for the challenge speaks to a fundamental disconnect between the OSPCA and the farmers they often interact with, Black said, noting that they don’t send officers with an understanding of farming to investigate farms.
He recalled that a Winchester-area dairy farmer had a run-in with an OSPCA officer, who was asking why cows on one side of the barn were well-fed and the others were starving. The officer didn’t realize that the cows on one side were pregnant.
A sworn affidavit filed by Winchester veterinarian Lawrence Grey in support of the current challenge described a change in the behaviour of the OSPCA in the mid-1980s to an “aggressive,” and “dictatorial,” approach, with the agency imposing standards that were neither practical, feasible, nor consistent with normal farm practices. The affidavit, however, was removed to carry the challenge forward.
If the challenge is successful, parts of the OSPCA Act would need to be re-written.
One stand-alone section of the challenge, if successful, would have a practical payoff for farmers. It has to do with how the OSPCA Act is arranged. Two sections overlap, which means when farmers get charged under one section, they inevitably get charged under a second section. Although the farmer cannot legally be convicted on both counts, the OSPCA can use the second count as a bargaining tool. “When people are pleading out, (the OSPCA) says they’ll drop half the charges,” in exchange for the guilty plea, said Andrews. Getting rid of the double charge removes an intimidating tool against farmers, Andrews said.
The next court appearance is in Perth on May 16. A decision is expected by the fall, said Black. He cautioned, however, that even if the landowners win the challenge, the decision would likely be appealed, adding another $70,000 in legal costs on top of the $50,000 already spent.
