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PAWS (Provincial Animal Welfare Services Act)
Legal Guide
Ch.6 - Protective Search, Seizure and Powers- Overview
- Inspections
(a) Purposes of Inspection
(b) Warrantless Entry
(c) Dwelling Places
(d) Veterinary Facilities
(e) Warrants for Inspection
(f) Inspection Powers
(g) Inquiries of Owners or Custodians of Animals
- Distress Entry and Search
(a) Entry and Search on Consent
(b) Warrants
(c) Assistance from Any Person
(d) Critical Distress (Warrantless Search) Powers
- Distress Powers
(a) Distress Defined
(b) Distress Orders
(c) Removing Animals
(d) Euthanization
(e) Supply of Necessaries to Relieve Distress
(f) Critical Distress in Motor Vehicle
(g) Veterinarians
(h) Service of Documents
- Liability of Owner/Custodian for Distress-Related Necessities
(a) Circumstances of Debt
(b) Statement of Account Form
(c) Appeal Rights
(d) Forfeiture on Failure to Pay
- Animal Forfeitures
(a) CAWI-Crown Forfeiture
(b) Forfeiture to Animal Shelter
1. Overview
At the date of writing, PAWS has relatively few substantive animal protection provisions, but many provisions to make sure that animal welfare inspectors (AWIs) have a full range of inspection and entry powers (legally referred to as 'search and seizure' powers) - and ample provisions to make sure that AWIs 'behave' (see Ch.4: 'Animal Welfare Inspectors and Related'). The former of these take two forms, the first (covered in this chapter) intended for the protection of animals and the second for the enforcement of PAWS offences and administrative penalties [see Ch.8 "Enforcement Search, Seizure and Powers"].
The 'protective' distress-based search, seizure and order-type powers that are addressed in this chapter are very much a carrying on of the Ontario animal welfare law as it operated under the prior OSPCA Act.
In this chapter, 'place' "includes any land, building, vehicle or vessel" [PAWS 1(1)].
Where the owner or custodian of an animal is a minor, the owner or custodian for the purposes of this Act is deemed to be the minor’s parents or guardians [PAWS 1(4)].
2. Inspections
(a) Purposes of Inspection
AWIs "may enter and inspect any place for the purpose of determining compliance with" [PAWS 24(1)]:- "a condition in an authorization that is issued" with respect to restricted animals [PAWS 20] (see Ch.5) or 'prescribed activities' (see Ch.10) [PAWS 21] [none of these regulations exist yet];
- "an order to relieve an animal’s distress" (see Ch.2) [PAWS 30]; and
- "the standards of care or administrative requirements or the reasonable and generally accepted practices of agricultural animal care, management or husbandry, if the animals are kept for, an entertainment, commercial, educational or charitable purpose, or a purpose prescribed by the Lieutenant Governor in Council related to sport." (see Ch.3: 'Standards of Care and Administrative Requirements') [most of these regulations do not exist yet].
(b) Warrantless Entry
A warrantless entry shall be made only between the hours of 9 a.m. and 5 p.m. during a business day, or at any other time when the place is open to the public [PAWS 25(3)].
(c) Dwelling Places
AWIs may not enter any places that are dwelling places without a warrant, unless they have the consent of it's occupier [PAWS 24(2)].
(d) Veterinary Facilities
An AWI may not enter and inspect an accredited veterinary facility for the purpose of 'standard of care' compliance [see 2(a), above] "unless the inspector has reasonable grounds to believe that an animal to be found there is not being treated in accordance with the standards of practice under the Veterinarians Act" [PAWS 24(3,6)].
(e) Warrants for Inspection
If satisfied by information under oath or affirmation that there are reasonable and probable grounds that an inspection is required for the purposes set out in (a) [above], a justice may (without notice) issue a warrant [with conditions: PAWS 24(10)] authorizing an AWI to enter and inspect a place [PAWS 24(4)].
Warrant applications must specify they are for a dwelling place if that is the case [Act 24(5)]. Telewarrants are allowed where "it would be impracticable to appear personally before a justice" [PAWS 24(7), Reg 14/20 "Telewarrants"].
Warrants shall specify their currency and date of expiry (which may be up to 30 days), subject to extension by the justice for a maximum of another 30 days [PAWS 24(8-9)].
AWIs may "call upon police officers for assistance in executing the warrant" [PAWS 24(11)]. AWIs and police officers called to assist them "may use whatever force is reasonably necessary to execute the warrant" [PAWS 24(12)].
(f) Inspection Powers
During an inspection the AWI may [PAWS 25(1)]:- inspect any animal or thing that the inspector believes on reasonable grounds to be relevant to the inspection;
- open any receptacle, baggage, package, container, cage or other thing where the inspector believes on reasonable grounds that it may contain something relevant to the inspection;
- conduct any test, take any measurement, specimen or sample, set up any equipment and make any photographic or other record that may assist in the inspection;
- require the production of any animal or thing, including any document or data that is relevant to the inspection;
- use or cause to be used any computer or other device that contains or is able to retrieve information, for the purpose of examining information relevant to the inspection that is contained in or available to the computer or other device, and produce or cause to be produced a printout or other output from the computer or other device of information that is relevant to the inspection;
- remove any documents or other things that are relevant to the inspection for the purpose of making copies or of further inspection; and
- ask questions that are relevant to the inspection.
An AWI may be accompanied or assisted by any person during an inspection regardless of whether the entry is made with or without a warrant [PAWS 25(2)].
"An animal welfare inspector may make copies of any documents produced or removed during the inspection" [PAWS 25(4)]. If an animal welfare inspector removes any document or thing for copying or further inspection, "the inspector shall return it promptly to the person from whom it was taken, unless it is not reasonable for the person to expect the thing to be returned" [PAWS 25(5)].
During an inspection, "a person" (which includes a corporation: Legislation Act, 2006 s.87) shall give all reasonable assistance to an animal welfare inspector conducting an inspection including by producing any animal or thing required by the inspector in the course of the inspection, and providing any information relevant to the inspection in response to the inspector’s questions [PAWS 26].
(g) Inquiries of Owners or Custodians of Animals
During an entry and inspection AWIs may "demand that the owner or custodian of the animal respond to reasonable inquiries" within the time specified in the demand [PAWS 27(6)] - with respect to any of the purposes of the inspection [see 2(a), above] [PAWS 27(1)]. In the course of such demands, the AWI "may exclude any person from questioning, except counsel for the individual being questioned" [PAWS 27(7)].
The AWI may make the demand "by any means of communication" [PAWS 27(2)], and may "require the owner or custodian to respond orally or in writing" [PAWS 27(3)].
The AWI may also require "an owner or custodian" to produce "any thing, including a document, or data related to the inquiry" [PAWS 27(4)]. If a document or data is retained in electronic form, an animal welfare inspector may require that a copy of it be provided to him or her on paper or electronically, or both [PAWS 27(5)].
3. Distress Entry and Search
(a) Entry and Search on Consent
For the distress power purposes set out in s.4(b-e) below [distress orders, removing animals, euthanasia, supply of necessaries to relieve distress], where an animal is in distress (see Ch.2) an AWI "may enter and search a place with the consent of the occupier if the inspector believes on reasonable grounds that an animal in distress is to be found there" [PAWS 28(1)].
(b) Warrants
For the distress power purposes set out in s.4(b-e) below [distress orders, removing animals, euthanasia, supply of necessaries to relieve distress], if satisfied by information under oath or affirmation that there are reasonable and probable grounds that "an animal in distress is to be found there", a justice may (without notice) issue a warrant [with conditions: PAWS 28(8)] authorizing an AWI to enter and search a place, [PAWS 28(2)].
Warrant applications must specify they are for a dwelling place if that is the case [Act 28(3)].
Telewarrants are allowed where "it would be impracticable to appear personally before a justice" [PAWS 28(5), Reg 14/20 "Telewarrants"].
Warrants shall specify their currency and date of expiry (which may be up to 30 days), subject to extension by the justice for a maximum of another 30 days [PAWS 28(6-7)].
AWIs may "call upon police officers for assistance in executing the warrant" [PAWS 28(9)]. AWIs and police officers called to assist them "may use whatever force is reasonably necessary to execute the warrant" [PAWS 28(10)].
In the case of a warrant application "that is made in relation to an accredited veterinary facility" the justice shall not issue the warrant unless satisfied that there are reasonable grounds to believe that an animal to be found there is "being abused or subjected to undue physical or psychological hardship, privation or neglect" [PAWS 28(4)].
(c) Assistance from Any Person
An AWI may "be accompanied or assisted by any person" during a search, regardless if the search was made with or without a warrant [PAWS 28(11)].
(d) Critical Distress (Warrantless Search) Powers
'Critical distress' means "distress that requires immediate intervention in order to prevent serious injury or to preserve life" [PAWS 1(1)].
If an AWI "has reasonable grounds to believe that an animal in the place is in critical distress", and to determine whether to exercise the distress powers set out in s.4(b-e) below [distress orders, removing animals, euthanasia, supply of necessaries to relieve distress], they may enter and "search for an animal" without a warrant, unless it is a dwelling place [PAWS 29(1)].
An AWI may enter a dwelling place without a warrant to "search for an animal" if they have "reasonable grounds to believe that (a) an animal in the place is in critical distress and (b) the time required to obtain a warrant [under PAWS 28] may result in serious injury or death to the animal [PAWS 29(2)].
AWIs may "call upon police officers for assistance in effecting the entry and search" [PAWS 29(3)]. AWIs and police officers called to assist them "may use whatever force is reasonably necessary to effect the entry and search" [PAWS 29(4)].
An AWI may "be accompanied or assisted by any person" during such a search [PAWS 29(5)].
An AWI may not enter or search an accredited veterinary facility under these critical distress provisions unless "the inspector has reasonable grounds to believe that an animal in critical distress to be found there is being abused or subjected to undue physical or psychological hardship, privation or neglect" [PAWS 29(6)].
4. Distress Powers
(a) Distress Defined
These powers are available to AWIs upon an animal being in 'distress'. As is further set out in Ch.2, “distress” means the state of being [PAWS 1(1)]:- in need of proper care, water, food or shelter,
- injured, sick, in pain or suffering, or
- abused or subject to undue physical or psychological hardship, privation or neglect.
(b) Distress Orders
. General
If an AWI "has reasonable grounds to believe that an animal is in distress and who is able to promptly find the owner or custodian of the animal", they may order the owner or custodian to "take such action as may, in the opinion of the inspector, be necessary to relieve the animal of its distress, which may include, without limiting the generality of the foregoing, having the animal examined and treated by a veterinarian at the expense of the owner or custodian" [PAWS 30(1)].
The order shall set a time by which the owner or custodian shall comply with it [PAWS 30(3)]. Every person "served with an order under this section" shall comply with it until such time as it may be modified, confirmed or revoked [PAWS 30(4-4.1)]. If the AWI is of the opinion that the order has been complied with, they shall serve written notice to that effect on the subject of the order [PAWS 30(5)].
Prior similar orders made under the old OSPCA Act [OSPCAA 13] are deemed to have been made by an AWI under PAWS [PAWS 70(1)].
. Contents of Distress Order
Such orders must be in writing and include on them the following content regarding appeal rights from the Act (see Ch.7: "Animal Care Review Board") [PAWS 30(2)]:
38(1) An owner or custodian of an animal may appeal any of the following to the Board:1. An order from an animal welfare inspector.
2. A decision by an animal welfare inspector to remove an animal from a place.
3. A decision to keep an animal in or take an animal into the Chief Animal Welfare Inspector’s care.
4. A statement of account. 38(2) An appeal under subsection (1) shall be made by notice in writing and must be made within the prescribed period after being served the order, notice of decision or statement of account, as the case may be.
38(3) An owner or custodian of an animal who receives an order from an animal welfare inspector may apply to the Board by notice in writing to have the order revoked if the animal has ceased to be in distress.
38(5) A notice to the Board must set out the remedy or action sought and the grounds for the appeal or application.
. Where Animal in Distress Changes Ownership/Custody
Where the ownership or ongoing custody of an animal subject to a distress order changes, then the former owner or former custodian of the animal shall collect contact information (as below) from the new owner or new ongoing custodian and immediately provide written notice to an animal welfare inspector of the transfer [PAWS 30(6-7)].
Where the new owner/custodian is an individual, the required contact information is [Reg 447/19, s.0.1(1) "Ministerial Prescriptions"]:- the legal name of the individual.
- the name ordinarily used by the individual, if different from their legal name.
- the individual’s residential address.
- the individual’s mailing address, if different from their residential address.
- the individual’s primary phone number, if any.
- the individual’s primary e-mail address, if any.
Where the new owner/custodian is a business, the required contact information is [Reg 447/19, s.0.1(2) "Ministerial Prescriptions"]:- The legal name of the business.
- any operating names of the business.
- the address at which the business is located.
- the mailing address of the business, if different from the address at which the business is located.
- the business’s primary phone number, if any.
- the business’s primary e-mail address, if any.
- the name of a contact person at the business who is able to respond to inquiries about the animal and, if different from the primary phone number and primary email address provided above, the business’s phone number and e-mail address for the person.
(c) Removing AnimalsNote: Still-existing similar removals made under the old OSPCA Act are governed by OSPCAA 14 [PAWS 70(2-3)]. . Distress Removal
An AWI may remove an animal in distress from the place where it is and take possession (not 'ownership', that's addressed at s.6, below) of it "for the purpose of relieving its distress ", if any of the following apply [PAWS 31(1)]:- Veterinarian's Advice That Removal Necessary
A veterinarian has advised the inspector in writing that relieving the animal’s distress necessitates it's removal.
- Owner/Custodian Can't Be Found
The inspector 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 [(b)(i)], or the animal is in critical distress [(b)(ii)].
- Distress Order Not Complied With
A distress order (above) has been made and not been complied with.
. 'Fighting' Removal
An AWI may remove an animal from the place where it is and take possession of it if the inspector has reasonable grounds for believing that (a) "the animal is being trained to fight another animal", or (b) "the animal is participating or soon will participate in a meeting, competition, exhibition, pastime, display or event at or in the course of which an animal fights another animal" [PAWS 31(2)].
. Police Assistance and Use of Force
AWIs may "call upon police officers for assistance in removing the animal" [PAWS 31(3)]. AWIs and police officers called to assist them "may use whatever force is reasonably necessary to remove the animal" [PAWS 31(4)].
. Notice of Removal
An AWI who has removed an animal (distress or fighting removals, above) "shall promptly serve written notice of his or her action on the owner or custodian of the animal, if known, and on the Chief Animal Welfare Inspector" [PAWS 31(5)].
. CAWI Retention of Animal
The CAWI may keep the removed animal in their care if they [PAWS 31(6)]:- determine it is necessary to relieve the animal’s distress; or
- have reasonable grounds to believe that,
. the animal may be placed in distress if returned to its owner or custodian, or
. the animal may be trained to fight another animal if returned to its owner or custodian.
The CAWI shall promptly serve on the owner or custodian a written notice of his or her decision to retain an animal in their care [PAWS 31(7)].
Such notice shall include on it the following content regarding appeal rights from the Act (see Ch.7: "Animal Care Review Board") [PAWS 31(8)]:
38(1) An owner or custodian of an animal may appeal any of the following to the Board:1. An order from an animal welfare inspector.
2. A decision by an animal welfare inspector to remove an animal from a place.
3. A decision to keep an animal in or take an animal into the Chief Animal Welfare Inspector’s care.
4. A statement of account. 38(2) An appeal under subsection (1) shall be made by notice in writing and must be made within the prescribed period after being served the order, notice of decision or statement of account, as the case may be.
38(4) An owner or custodian of an animal that has been kept in or taken into the Chief Animal Welfare Inspector’s care may apply to the Board by notice in writing to have the animal returned if the conditions that caused the animal to be kept in or taken into the Chief Animal Welfare Inspector’s care have ceased to exist.
38(5) A notice to the Board must set out the remedy or action sought and the grounds for the appeal or application.
(d) Euthanization
An AWI may cause an animal to be euthanized if [PAWS 32(1)]:- the owner (not the custodian) consents, or
- a veterinarian has advised the AWI in writing that, in his or her opinion, euthanasia is the most humane course of action.
The AWI shall promptly serve written notice of the euthanasia on the owner or custodian of the animal (if known) [PAWS 32(2)].
For the purposes of this Act, euthanasia is the most humane course of action for an animal if [PAWS 1(3)]:(a) immediate veterinary treatment cannot prolong the animal’s life; or
(b) prolonging the animal’s life would result in undue suffering for the animal. (e) Supply of Necessaries to Relieve Distress
An AWI who is lawfully in any place and who finds an animal in distress may, in addition to any other action he or she is authorized to take under this Act, take any reasonable steps to relieve the animal’s distress, which may include providing the animal with necessaries [PAWS 33].
(f) Critical Distress in Motor Vehicle
'Critical distress' means "distress that requires immediate intervention in order to prevent serious injury or to preserve life" [PAWS 1(1)].
The phenomenon of dogs being left in sealed vehicles on hot days while the driver is away has been notorious in the news over the last few years. In response to this, and particularly to a 2007 incident where a Toronto Humane Society investigator smashed a car window to retrieve an dog, we now have a provision that authorizes that any 'prescribed person' "who has reasonable grounds to believe that there is an animal in critical distress in a motor vehicle may enter the motor vehicle for the purpose of relieving the animal from distress" [PAWS 34(1)]. Like much most of PAWS no such 'prescribed persons' ('PP's) have yet been named in the regulations, but we can expect that likely future candidates are AWIs, police officers and similar.
If and when PPs are named, they will have the following powers (and limitations) [PAWS 34(1-4)]:- Vehicle Entry
PPs having "reasonable grounds to believe that there is an animal in critical distress in a motor vehicle may enter the motor vehicle for the purpose of relieving the animal from distress". This does not apply when the vehicle is being used as a dwelling unless the occupier consents [PAWS 34(1-2)].
- May Cause Damage
PPs may cause damage to the motor vehicle that is reasonably necessary in order to enter it and relieve the animal from distress [PAWS 34(3)].
- Possession and Relief of Distress
PPs may take possession of the animal and take reasonable steps to relieve its distress [PAWS 34(4)].
When an animal is taken possession under this provision, the PP "shall promptly notify an AWI if the owner or custodian of the animal is not present and cannot be found promptly" [PAWS 34(5)]. Upon receiving such notice, the AWI "shall inspect the animal and determine whether to take possession of it" [under (c) 'Removing Animals', above] [PAWS 31,34(6)].
It is illegal to obstruct a PP "exercising a power under this section to enter a motor vehicle for the purpose of taking an animal into his or her possession and relieving its distress" [PAWS 34(7)].
The owner or custodian of the animal is liable for any costs incurred by the PP in taking steps to relieve the animal’s distress, as a debt owed [PAWS 34(8)].
(g) Veterinarians
. When Veterinarian May Euthanize
Veterinarians may euthanize an animal if all of the following apply [PAW 61(1)]:- the animal is suffering;
- the animal’s owner or custodian cannot be found promptly, or the veterinarian reasonably believes that,
. the animal does not have an owner or custodian, or
. the animal’s owner or custodian has abandoned the animal; and
- in the veterinarian’s opinion, euthanization is the most humane course of action.
For the purposes of this Act, euthanasia is the most humane course of action for an animal if [PAWS 1(3)]:(a) immediate veterinary treatment cannot prolong the animal’s life; or
(b) prolonging the animal’s life would result in undue suffering for the animal. This authority does not limit any other authority a veterinarian may have to euthanize an animal [PAWS 61(2)].
. Obligation to Report Distress to AWIs
Every veterinarian ["or other person prescribed by the Lieutenant Governor in Council", none are prescribed yet] "who has reasonable grounds to believe that an animal is being abused, being subject to undue physical or psychological hardship, privation or neglect, including by participating in fights with other animals, or is being trained to fight another animal shall report his or her belief in accordance with the regulations, if any, to an animal welfare inspector" [PAWS 14].
(h) Service of Documents
Any order, notice or statement of account required or authorized to be served under this Act shall be served personally or by registered mail, courier, fax, electronic mail or other prescribed method in accordance with the regulations [PAWS 68].
5. Liability of Owner/Custodian for Distress-Related Necessities
(a) Circumstances of Debt
These are situations where the AWI (or the CAWI) may incur expenses regarding relieving distress in an animal (and the CAWI may bill for them):- an AWI "has taken steps to relieve the animal’s distress, which may include providing it with necessaries to relieve its distress" [as per 4(e), above],
- an AWI has "remove(d) an animal from the place where it is" (ie. a distress or fighting removal) [as per 4(c), above], or
- the CAWI has kept the animal in their care [see 4(c) above, 'CAWI Retention of Animal'], or
- the CAWI takes the animal into their care [see "Ch.8: 3. Seizures, Other Search and Seizure Methods, Seizures", pursuant to PAWS 44(8): "reasonable grounds to believe that the animal may be placed in distress or trained to fight"].
The CAWI "may, from time to time, serve on the owner or custodian of an animal a statement of account respecting any costs incurred in relation to the animal if the costs were incurred in relation to any of the" above circumstances [PAWS 35(1)]. For these purposes 'costs' may include those [PAWS 35(2)]:- incurred to relieve the animal’s distress;
- incurred in removing the animal or taking it into care;
- of providing care for an animal that has been removed;
- of providing care for an animal that the CAWI has kept or taken into care; and
- of taking any prescribed action in relation to the animal.
(b) Statement of Account Form
Such a statement of account shall include on it the following content from the Act regarding appeal rights (see Ch.7: 'Animal Care Review Board') [PAWS 35(2.1)]:
38 (1) An owner or custodian of an animal may appeal any of the following to the Board:1. An order from an animal welfare inspector.
2. A decision by an animal welfare inspector to remove an animal from a place.
3. A decision to keep an animal in or take an animal into the Chief Animal Welfare Inspector’s care.
4. A statement of account. Prescribed time to appeal
(2) An appeal under subsection (1) shall be made by notice in writing and must be made within the prescribed period after being served the order, notice of decision or statement of account, as the case may be.
(5) A notice to the Board must set out the remedy or action sought and the grounds for the appeal or application.
(c) Appeal Rights
The time for filing an appeal is ten business days, and it must be done in writing [PAWS 38(2), Reg 447/19, s.3; see Ch.7].
Subject to an order made on appeal [under Act 38(9)], the owner/custodian is liable to pay the statement of account [PAWS 35(3)].
(d) Forfeiture on Failure to Pay
The animal is forfeited to the Crown if either [PAWS 35(4); Reg 447/19, s.1]:- the owner/custodian does not appeal the statement of account and fails to pay the stated amount within 15 business days after being served with the statement of account; or
- loses such an appeal and subsequently fails to pay the confirmed or varied amount within 15 business days after the Board provided notice of its decision.
During these 15 business day time limits CAWI and the owner/custodian may enter into a written agreement "to extend the time for payment or reduce the amount that is to be paid, or both" [PAWS 35(5)].
If, "any part of the statement of account is unpaid, the unpaid amount is a debt due to the Crown and the Crown may recover the debt by action or by any other remedy or procedure available by law to the Crown for the collection of debts owed to the Crown" [PAWS 35(6)]. This debt "applies regardless of whether the animal has been forfeited" [PAWS 35(7)], but it "may not be enforced ... while the obligation to pay the statement of account is being appealed ..." (see Ch.7, s.2: "Appeals") [PAWS 35(8)].
6. Animal Forfeitures
(a) CAWI-Crown Forfeiture
Abandonment is deemed to occur when the CAWI "keeps an animal in or takes the animal into" their care and no person is identified as the animal’s owner or custodian within five days. On abandonment the animal is forfeited to the Crown [PAWS 36; Reg 447/19, s.2].
(b) Forfeiture to Animal Shelter
Similarly, PAWS has a regime for 'animal shelters', which authorizes the taking of ownership of an animal by the shelter.
It operates in two stages. First, the 'entity' which operates the animal shelter takes custody of the animal, and then either [PAWS 62, Reg 447/19, s.6(2-3)]:. no person is identified as the animal’s owner or custodian within five business days; or
. the owner or custodian of the animal has not claimed the animal within five business days. Any of the following entities can operate animal shelters for these purposes [Reg 447/19, s.6]:- Animal Charities
Every registered charity, as defined in subsection 248 (1) of the Income Tax Act (Canada), whose charitable objects include or are consistent with offering animal sheltering services.
- Every municipality.
- Every entity that has a contractual arrangement with a municipality respecting the provision of animal sheltering services.
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