The Progressive Conservative government at Queen’s Park is still less than a year old, and it has yet to make much headway on its major policy priorities. But events wait for no premier, and the Tories have now been handed a court decision that may force them to spend precious time and energy addressing an issue that barely registered in last year’s election: Ontario’s animal-welfare laws.
Last week, Justice Timothy Minnema issued a decision that gives the government 12 months to make a fundamental change to the Ontario Society for the Prevention of Cruelty to Animals Act, which sets out which animals are protected in provincial law and empowers the OSPCA, a private charity, to enforce it with police powers.
It is that arrangement — the delegation of enforcement powers to a private charity without any democratic oversight — that Minnema says should not be allowed to stand.
“The OSPCA is a private organization. Private organizations by their nature are rarely transparent, and have limited public accountability,” Minnema wrote, noting that the OSPCA’s inspectors are not bound by the Police Services Act and that the charity is not subject to provincial freedom of information legislation or to oversight from the provincial Ombudsman.
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Brian Shiller, general counsel for the OSPCA, says that the charity’s priority going forward is ensuring that whatever comes next protects or improves on the province’s animal-welfare rules.
“Our preferred next step is that they consider all options,” he tells TVO.org. “Our position is they should do what’s best to protect animals in the province of Ontario.”
“The OSPCA is a private charity,” Shiller adds. “The majority of the work it does isn’t related to enforcement of legislation, and the work that it does enforcing legislation is done because the OSPCA chooses to do it — it’s only funded for a fraction of the work it does. There are well-publicized problems with that reality.”
The court case was launched by Jeffrey Bogaerts and supported by the Ontario Landowners Association, a group that represents rural Ontarians and aims to “preserve and protect the rights of Ontario property owners.” Bogaerts argued that the police powers given to the OSPCA were unnecessarily and unconstitutionally broad. The judge disagreed for the most part, finding that the OSPCA’s powers were reasonable and constitutionally sound.
The problem the court did identify is more fundamental: the OSPCA exercises government power but isn’t directly accountable to government. The decision is interesting because the judge based it on a “novel” constitutional principle. Nowhere in the Canadian constitution is there anything that says that people exercising the police powers of the state — search, seizure, arrest — must be accountable to an elected government.
(The provincial government has not yet decided whether to appeal Minnema’s decision, telling TVO.org in an emailed statement only that it is being reviewed.)
Camille Labchuk, a lawyer and the executive director of Animal Justice, which was an intervener in this case, says that the decision was gratifying — the judge accepted nearly all of the organization’s arguments — and serves as a sign that a system that dates back to the 1800s is no longer workable.
“The reason we have this system in the first place is because when the first animal-cruelty laws were enacted in the United Kingdom, all enforcement was private,” Labchuk says. “If you and I had a dispute, and I wanted to prosecute you, I had to hire a lawyer and prosecute you myself.”.
Because animals can’t hire their own lawyers (fact-check: true), British law gave the job of prosecuting animal-welfare laws to the Royal Society for the Prevention of Cruelty to Animals. That approach then spread to other parts of the British Empire, including Canada.
Labchuk says that these centuries-old legal protections for animals send the wrong message. “The effect of that is to send the signal that animals aren’t as important as every other part of the law,” she says. “It should be a public function, just as it is in every other part of the law.”
What happens next is an open question. If the government appeals the decision, getting a final ruling from the Supreme Court of Canada could take years. But the Tories could also choose to accept it. This is a less likely outcome, but not an impossible one: the recent court case was supported by various rural groups, and the Tory government’s rural MPPs might welcome the opportunity to make major changes to animal-welfare law.
If the government does decide to break with the current system, it has options. It could simply hand enforcement over to an existing part of the provincial bureaucracy — the Ministry of Agriculture, Food and Rural Affairs, for example. Or it could follow a suggestion made by two animal-rights groups that would involve the creation of a new provincial commission tasked with enforcing animal-welfare law.
Presented in a report from Zoocheck and the Animal Alliance of Canada titled “New Directions for Animal Welfare in Ontario,” the idea was initially shared with the Liberal government in 2017 but was made public only this week.
It’s not clear that the Tories would be interested in strengthening and broadening the province’s animal-welfare laws, They are, for example, currently proposing to legalize the hunting of cormorants — not exactly the kind of move animal-rights groups tend to applaud.
Labchuk chooses to see the glass as half full for now, in part because she considers this an issue that a more conservative government could view as a matter of law enforcement.
“This government has prioritized law enforcement, and I think law enforcement is something conservatives can get behind,” she says. “Animal issues have support across the spectrum — it’s not something you see just on the left or right.”