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Dog and Cat Control (Ontario)
Legal Guide
Ch. 9 - Dog and Cat Welfare
(01 August 2019)- Overview
- OSPCA Act
(a) Overview
(b) Prohibitions and Protections
(c) Care Standards
(d) Euthanasia
(e) Enforcement
- Criminal Anti-Cruelty Provisions
1. Overview
There are two main areas of legal protection for dog and cats in Ontario, both of which also apply to other animals generally: the federal Criminal Code anti-cruelty provisions and the Ontario Society for the Prevention of Cruelty to Animals Act (OSPCAA). The OSPCAA Regulations have a specific dog 'care standard' section in it, but otherwise these provisions apply generally (on there specific terms) to most animals.
2. OSPCA Act
(a) Overview
The Ontario Society for the Prevention of Cruelty to Animals Act (OSPCAA) is essentially an older form of SPCA legislation found across the common law world, though with relatively extensive species-specific standard of care provisions grafted onto it. It operates through a provincial 'Society', with local 'humane society' affiliates [OSPCAA 2,4], and collectively their object is "to facilitate and provide for the prevention of cruelty to animals and their protection and relief therefrom" [OSPCAA 3].Note: re Bogaerts v. Attorney General of Ontario (Ont Sup Ct, 2019)
It is accurate to consider the Society and it's affiliates as being the 'animal police' in Ontario, as the basic structure of the legislation is that of police legislation. In this capacity it is an odd sort of non-governmental 'police', mixed with a charity (and it is a charity as well), a dual capacity that has always often been an oddity.
This situation resulted most recently at the beginning of 2019 in the Superior Court issuing a ruling in Bogaerts v. Attorney General of Ontario (Ont Sup Ct, 2019), which (if it survives appeal) effectively gutted parts of it's statutory provisions wholesale, on Charter grounds. The essence of the ruling was that even if a private organization can hold police powers, it certainly cannot not hold them in the manner that the OSPCA does, and to do so is a violation of s.7 ("life, liberty and security of the person") of the Charter. The judge made significant (and I think undue) weight over the point that the OSPCA was not governed by Ontario's Freedom of Information and Protection of Privacy Act (FIPPA), and that was generally privately run.
The court suspended the declaration for one year. The province has appealed, though oddly the OSPCA was not a party to the case. Since that time the OSPCA Act has been tentatively amended, with new 'Interim Period' Regulations passed into law to enable it to effectively run in the meantime.
Personally, while I have major problems with the OSPCA Act structuring (my beef: the OSPCA shouldn't maintain shelters or non-OSPCA pounds, because they are police - who polices the police?). I think that this is a tempest in a teapot, and I think that the appeal will be successful on the issue of public interest standing (ie. that the court should not have heard the applicant in the first place because there were no facts to the case at all), or alternatively that the OSPCA will be added to FIPPA application (a good thing) and undermine the ratio of the ruling.
We'll see. In any event, right now it's a big fuss with the OSPCA. Some of these OSPCAA provisions have already been dealt with in Ch.3 "Pounds, Shelters and Research". This 'cat and dog welfare' chapter deals more with direct, substantive protections for the animals.
(b) Prohibitions and Protections
. 'Distress'
Historically, the key concept of SPCA animal protection has been that of 'distress'. For our present purposes this means "the state of being in need of proper care, water, food or shelter or being injured, sick or in pain or suffering or being abused or subject to undue or unnecessary hardship, privation or neglect" [OSPCAA 1(1)].
The following are prohibited with respect to animals:- anyone causing an animal to be in distress [OSPCAA 11.2(1)]; or
- an owner or custodian of an animal permitting the animal to be in distress (this essentially imposes an additional duty to prevent ongoing distress) [OSPCAA 11.2(2)].
These distress prohibitions are excepted for [OSPCAA 11.2(6,7)]:- an activity permitted under the Fish and Wildlife Conservation Act ('FWCA') (see that module) in relation to wild animals in the wild (primarily hunting and trapping);
- persons hunting under the FWCA [OSPCA Exemptions Reg ('E Regs') 1];
- an activity permitted under the FWCA or the federal Fisheries Act (see those modules) in relation to fish (primarily, fishing);
- an activity carried on in accordance with reasonable and generally accepted practices of agricultural animal care, management or husbandry;
- veterinarians and their staff providing veterinary care, or boarding an animal as part of its care, in accordance with the standards of practice established under the Veterinarians Act.
. Fighting and Animals Working with Peace Officers
Additionally, the following are prohibited, without exception:- an owner or custodian permitting an animal to fight another animal [OSPCAA 11.2(3)];
- anyone training an animal to fight another animal [OSPCAA 11.2(3)];
- anyone owning or possessing "equipment or structures that are used in animal fights or in training animals to fight" [OSPCAA 11.2(4)];
- anyone harming or causing harm to "a dog, horse or other animal that works with peace officers in the execution of their duties, whether or not the animal is working at the time of the harm" [OSPCAA 11.2(5)].
. Veterinarian Duty to Report Abuse or Neglect
Veterinarians who come to believe that animal/s are being subjected to abuse or neglect must report this to the Society [OSPCAA 11.3].
(c) Standards of Care
In 2009, the OSPCAA adopted some animal-specific standards of care for owned or custodial animals, set out as follows (as they apply to cats and dogs) in the Standards of Care and Administrative Standards Regulation ('SCAS Regs') [OSPCAA 11.1(1), SCAS Regs 1]:- All Animals
As per SCAS Reg s.2:2. (1) Every animal must be provided with adequate and appropriate food and water.
(2) Every animal must be provided with adequate and appropriate medical attention.
(3) Every animal must be provided with the care necessary for its general welfare.
(4) Every animal must be transported in a manner that ensures its physical safety and general welfare.
(5) Every animal must be provided with an adequate and appropriate resting and sleeping area.
(6) Every animal must be provided with adequate and appropriate,
(a) space to enable the animal to move naturally and to exercise;
(b) sanitary conditions;
(c) ventilation;
(d) light, and;
(e) protection from the elements, including harmful temperatures.
(7) If an animal is confined to a pen or other enclosed structure or area,
(a) the pen or other enclosed structure or area, and any structures or material in it, must be in a state of good repair;
(b) the pen or other enclosed structure or area, and any surfaces, structures and materials in it, must be made of and contain only materials that are,
(i) safe and non-toxic for the animal, and
(ii) of a texture and design that will not bruise, cut or otherwise injure the animal; and
(c) the pen or other enclosed structure or area must not contain one or more other animals that may pose a danger to the animal.
(8) Every animal that is to be killed must be killed by a method that is humane and minimizes the pain and distress to the animal; an animal’s pain and distress are deemed to be minimized if it is killed by a method that produces rapid, irreversible unconsciousness and prompt subsequent death. - Dogs
As per SCAS Reg s.3:3. (1) Every dog that lives primarily outdoors must be provided with a structurally sound enclosure for its use at all times.
(2) The enclosure must be weather-proofed and insulated.
(3) The size and design of the enclosure must be adequate and appropriate for the dog.
(4) A chain, rope or similar restraining device used to tether a dog that lives primarily outdoors,
(a) must be at least three metres long;
(b) must allow the dog to move safely and unrestricted (except by its length); and
(c) must allow the dog to have access to adequate and appropriate water and shelter. For these purposes, a requirement that a standard of care be 'adequate and appropriate or necessary' is a requirement that the standard of care be adequate and appropriate or necessary to the specific animal, having regard to its species, breed and other relevant factors [SCAS Regs 1(4)].
These standards are broadly excepted for [OSPCAA 11.1(2,3)]:
- "an activity carried on in accordance with reasonable and generally accepted practices of agricultural animal care, management or husbandry"; and
- "a veterinarian providing veterinary care, or boarding an animal as part of its care, in accordance with the standards of practice established under the Veterinarians Act".
(d) Euthanasia
A Society inspector or agent may destroy an animal with either the consent of the owner or if "a veterinarian has examined the animal and has advised the inspector or agent in writing that, in his or her opinion, it is the most humane course of action" [OSPCAA 14(2)].
(e) Enforcement
. General
For enforcement purposes, the Society may appoint a Chief inspector, inspectors and agents who have the authority of police officers for animal welfare and cruelty matters [OSPCAA 6.1, 11]. These powers include (in addition to those set out below) warrant entry [OSPCAA 11.5], to examine and sample an animal [OSPCAA 12.1] and plain view seizure [OSPCAA 12.1(4)].
The OSPCAA has a broad offence provision which allows prosecution for violations, and the possibility on conviction of an order prohibiting the owning, having custody of or living with animals [OSPCAA 18.1(1,6)].
. Where Animals are Being Kept for Exhibition, Entertainment, Boarding, Hire or Sale
Where animals are being kept "for the purpose of animal exhibition, entertainment, boarding, hire or sale" then Society inspectors and agents have specific authority as follows:
- to, without a warrant, enter and inspect a building or place (other than an 'accredited veterinary facility') for the purpose of determining whether the standards of care or administrative requirements (see s.4 above) are being complied with. Entry into and inspection of a dwelling place requires either a warrant or the consent of the occupier. Entry may only be made 9am to 5pm or at any other time that the building or place is open to the public [OSPCAA 11.4];
- to demand that a person produce a record or thing for inspection (with a corresponding duty on the person to comply), for the purpose of determining whether the standards of care or administrative requirements (see s.4 above) are being complied with [OSPCAA 11.4.1].
. Where Animal in Distress
Entry and inspection warrants may be issued where an animal is in distress in any building or place [OSPCAA 12(1)].
Such entry and inspection may be done without warrant where there is 'an animal that is in immediate distress in any building or place, other than a dwelling" (other than an 'accredited veterinary facility'). For this purpose, 'immediate distress' "means distress that requires immediate intervention in order to alleviate suffering or to preserve life" [OSPCAA 12(6-8)].
Where, in the course of authorized entry into a building or place an inspector or agent finds an animal in distress, they may "in addition to any other action he or she is authorized to take under this Act, supply the animal with food, care or treatment" [OSPCAA 12.1(3)].
. Inspector and Agent Orders
Inspectors and agents, where they find an animal in distress and where the owner or custodian may be found promptly, may issue an Order to them in writing to "take such action as may, in the opinion of the inspector or agent, be necessary to relieve the animal of its distress" or to "have the animal examined and treated by a veterinarian at the expense of the owner or custodian" [OSPCAA 13].
. Society Taking Possession Where Distress or Need
A Society inspector or agent may take possession of an animal "for the purpose of providing it with food, care or treatment to relieve its distress where" either [OSPCAA 14(1)]:
- a veterinarian has examined the animal and has advised the inspector or agent in writing that the health and well-being of the animal necessitates its removal;
- an inspector or agent has inspected the animal and has reasonable grounds for believing that the animal is in distress and the owner or custodian of the animal is not present and cannot be found promptly; or
- an order respecting the animal has been made [as above] and the order has not been complied with.
(f) Exemptions and Other Laws
Note that animals possessed by registered research facilities or by licensed supply facilities [as regulated under the Animals for Research Act ('ARA')] are exempt from the provisions of OSPCAA (except some provisions as they apply to orcas) [ARA 1.1].
If a municipal by-law "pertaining to the welfare of or the prevention of cruelty to animals" conflicts with the OSPCAA, "the provision that affords the greater protection to animals shall prevail" [OSPCAA 21].
3. Criminal Code Anti-Cruelty Provisions
Some of the Criminal Code 'anti-cruelty' provisions can bear on cats and dogs, though several are specific to cattle and birds.
The best way to see if cats and dogs might be effected by a specific crime is to review Ch.3 ('Main Offences') of the Animals and the Criminal Law Legal Guide.
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