Law Times

Law Times • January 7, 2019 Page 5 www.lawtimesnews.com Divide within the movement? Animal protection law enforcement regime struck down BY ALEXIA KAPRALOS For Law Times T he current animal pro- tection law enforce- ment regime in Ontario has been ruled to be unconstitutional by the Superior Court of Justice. The court struck down the province's current regime Jan. 2 in a Kingston court in Bogaerts v. Attorney General of Ontario, declaring that it is unconstitu- tional for the Ontario Society for the Prevention of Cruelty to Animals, a private charity not subject to reasonable oversight measures, to enforce public ani- mal protection laws. Unlike the majority of SP- CAs across Canada, the OSPCA is both government funded and also privately funded by dona- tions. The OSPCA, a charity, holds law enforcement powers, with- out the same transparency and accountability a public or gov- ernment agency has. "There's a bit of a divide within the animal protection movement," says Rebeka Breder, a Vancouver-based animal law lawyer at Breder Law. "I think the concern here is that if you're going to have some- one's property being searched and someone's property, like animals, being taken away, then those powers should be [given to] the government and not a private organization that's not subject to freedom of informa- tion requests. There's very little transparency and arguably, perhaps even accountability, because it's a private non-profit organization." The sections of the Canadian Charter of Rights and Freedoms in question are sections 7 and 8 (concerning individual auton- omy and unreasonable search and seizure, respectively). While the decision states there is no direct Charter viola- tion of the distribution of legis- lative powers and "specific war- rantless search and/or seizure powers" in the OSPCA Act, Jus- tice Timothy Minnema wrote in his decision that assigning "po- lice and other investigative pow- ers to the OSPCA" violates s. 7. As a result, the court sus- pended the declaration of inva- lidity for 12 months to provide Ontario time to restructure its animal protection regime to en- sure the desired accountability needed to operate with having such a public function. Minnema wrote that it would be "an untenable result" to "com- promise animal welfare for even a transitional period" of time as the province "considers its next step." The Canadian animal law organization, Animal Justice, intervened after the case's hear- ing last May and argued that in order for animals to maximally benefit from legal protections, the enforcement agency needs to be transparent. "Animal protection laws are the only laws still enforced by private agencies, and the court ruled that private enforce- ment without transparency and accountability is unaccept- able," said lawyer Camille Lab- chuk, executive director of Ani- mal Justice, in a press release. While Breder says she agrees that in most cases, private or- ganizations shouldn't possess government-like powers to enter a person's property and seize their belongings, finding the OSPCA's powers completely unconstitutional could lead to a slippery slope for other SPCAs nation-wide. "The SPCAs across the coun- try should remain having the powers that they do to investi- gate animal welfare and cruelty concerns because [due to] a lack of financial and human resourc- es it means they're in the best position to look into these issues and to deal with them," she says. "If we just left it up to the govern- ment, I think we would be seeing significantly less animal welfare issues being investigated." Suzana Gartner, mediator and founder of Toronto-based Gartner & Associates Animal Law, says she agrees with Bred- er's sentiment. "This [decision] is like a win- win for everybody in my view because if they're given an op- portunity to restructure their enforcement regime and to be accountable and transpar- ent, I think that's going to help the province. It can help them mandate their policing powers," Gartner says. Law Times contacted Daniel Huffaker, a lawyer representing the Attorney General of On- tario, in Bogaerts v. Attorney General of Ontario. A ministry media represen- tative, Philip Klassen, declined comment, stating via email: "We are currently reviewing this de- cision. As this matter is in the appeal period, it would be inap- propriate to comment further." It is uncertain whether the decision will be appealed. 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This indispensable resource covers the following topics: • Federal regulation – Cannabis Act and regulations • Provincial, municipal, territorial, and Indigenous regulations • Criminal and regulatory offences • Penalties • Medical cannabis • Workplace and human rights issues • The business of cannabis – commercial law issues For additional research, a handy reference section provides a listing of cannabis-related websites organized topically. Cannabis Law is essential reading for lawyers, law enforcement/police, municipalities, educators, and businesses interested in participating in the emerging cannabis-related market. Effectively navigate the complicated new world of legalized cannabis in Canada Suzana Gartner says a recent Superior Court of Justice ruling is a 'win-win for everybody.' 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. Camille Labchuk

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