By Connor Lynch
An Ontario judge has agreed that the privately-run Ontario Society for the Prevention of Cruelty to Animals has more freedoms than the police. To a farmer who has dealt with the animal police, that is sometimes restated more graphically to “They get away with murder.”
On Jan. 2, Justice Thomas Minnema struck down the rules governing the OSPCA, calling them unconstitutional for allowing the animal police to operate with “limited transparency” and in some cases being accountable to no one.
Justice Minnema ruled that the OSPCA is a private charitable organization that has police powers but is not subject to policing rules under the Police Services Act, which provides oversight and accountability. He added that the OSPCA is also not subject to the Ombudsman Act and “unlike virtually every public body in Ontario, the OSPCA is not subject to the Freedom of Information and Protection of Privacy Act.
“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 wrote in his judgment. “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.”
Minnema allowed the OSPCA to continue operating but gave the province one year to rewrite the rules governing the organization.
The judgment was a huge, though partial, victory for the Ontario Landowners Association as members have been frustrated by and have pointed fingers at the OSPCA for years. While new rules will mean the OSPCA will have to justify its actions, the landowners did not win on one of their biggest grievances. Justice Minnema did not stop OSPCA investigators from walking onto private property without a warrant if the investigator thinks an animal could be in distress. The ruling also does not stop the OSPCA from removing animals from property for the purpose of providing proper care.
The Justice disagreed with the landowners on their argument that delegating police powers to a private organization was unconstitutional. He agreed, however, that a private organization exercising police powers has to be transparent and accountable. That means the OSPCA will be subject to new rules for public and government scrutiny, said Ottawa lawyer Kurtis Andrews, who represented the Ontario Landowners Association.
He argued that the Ontario Society for the Prevention of Cruelty to Animals Act violated the Canadian Charter of Rights and Freedoms.
“This was a complete victory,” he said.
Former Ontario Landowners Association president Tom Black would now like to see the government take over the OSPCA’s responsibilities. “Put it under a government department, have them do all the investigations, have the police do the enforcement,” he said. Black is concerned that a private organization reliant on donations could still be subject to outside influence. Said Black: “Animals are our responsibility in this society, just like people. Both have to be treated fairly and justly.”
The constitutional challenge was launched in 2013 and has cost the landowners more than $100,000. The decision has been a long time coming, Black said. “I feel relieved. We were starting to wonder if it would ever happen.”
OSPCA communications director Melissa Kosowan said in an emailed statement that “The Ontario SPCA respects the decision of the court. This is an issue for the Government of Ontario to address.”
Ontario Attorney General spokesperson Brian Gray said that the decision was being reviewed, but wouldn’t say whether they’d be appealing.
Following the court decision, two Canadian animal rights groups, called on the provincial government to take over animal rights enforcement in the province and recommended that OMAFRA handle livestock cases. Toronto wildlife charity Zoocheck and the Animal Alliance of Canada, a Toronto-based advocacy group, co-authored the report, writing that “conflict of interest is inherent to the OSPCA Act.”