Ontario SPCA’s powers revoked
Private organization enforces laws with little oversight, judge says
An Ontario judge has ruled that the authority of the province’s animal-welfare agency to enforce laws that protect animals is unconstitutional because it allows a private organization — the Ontario Society for the Prevention of Cruelty to Animals (OSPCA) — to enforce public laws with little oversight or transparency.
“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,” Superior Court Justice Timothy Minnema said in a strongly worded decision released Wednesday. While investigators and agents with the OSPCA have police powers, they are not subject to the Police Services Act, which has created a system for oversight and accountability for police and law-enforcement bodies.
“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.”
“Rather, the OSPCA has a policy manual that it has created related to entering homes and seizures of property, and that manual is not a public document,” Minnema said.
“Complaints and discipline are dealt with internally.”
The court’s order will take effect in 12 months, giving the province a chance to create a new system of animal protection.
As the court noted, the constitutional challenge was not intended as an attack on the OSPCA itself. Jeffrey Bogaerts, the paralegal who launched the case, saw the agency as a victim of the legislation, and acknowledged it may be doing the best it can under the circumstances.
Unlike virtually every public body in Ontario, the OSPCA isn’t subject to the Freedom of Information and Protection of Privacy Act, which would require it provide access to in- formation. Nor is it subject to the Ombudsman Act.
The decision recognized a new principle of fundamental justice, declaring that under Section 7 the Charter of Rights and Freedoms, it is unconstitutional for the province to assign police and other investigative powers to a law-enforcement agency not subject to reasonable standards of transparency and accountability.
“It’s a huge deal that the court created a new one,” said Camille Labchuk, executive director of Animal Justice, a national animal-law organization.
“They almost always reject them. We think it’s very good for animals (that agencies have to be transparent).”
Animal Justice was an intervener in the case, arguing that enforcement agencies must be accountable and transparent to ensure animals benefit from le- gal protections.
Among the concerns raised in court are secret memorandums of understanding with industry groups, and the fact that the OSPCA receives donations from the public — the very people it’s tasked with investigating when problems arise.
Ontario will now have an opportunity to revisit the enforcement of provincial animal laws, which Labchuk said is long overdue, given the many years the responsibility for animal protection has been “shunted off” to a private charity.
“The conversation is being had, and it’s up to the government to start bringing this regime in line with modern, 21stcentury values. Animal Justice will support a system that puts animals first.”
For now, things stay the same. The court argued that if the order took effect immediately, it could deprive animals of the protections afforded by the OSPCA Act.
“Compromising animal welfare, even for a transitional period, would be an untenable result, in my view,” Minnema said.
As the court noted, the constitutional challenge was not intended as an attack on the OSPCA itself