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Agriculture - Security from Trespass and Protecting Food Safety Act, 2020 (STPFSA). Animal Justice v. Ontario (Attorney General)
In Animal Justice v. Ontario (Attorney General) (Ont CA, 2024) the Ontario Court of Appeal considers several 'friend of the court' intervenor motions.
Here the court summarizes aspects of the Security from Trespass and Protecting Food Safety Act, 2020 (STPFSA), and a recent successful Charter s.52 appeal (suspended) strike-down thereof:[2] The Act limits access to certain types of agricultural premises where animals are kept, raised, or slaughtered. Sections 9 and 10 of the Regulation seek to prevent people gaining access to prescribed premises such as a farm or animal processing facility and engaging in otherwise prohibited activities either through a false statement to obtain consent of the owner or through a false statement regarding the person’s employment qualifications. The application judge found that ss. 9 and 10 of the Regulation (discussed further below) violate s. 2(b) of the Charter and that, while s. 10 is justified under s. 1, s. 9 is not.
[3] The application judge further held that certain parts of ss. 11 and 12 of the Regulation,[1] exempting journalists and whistleblowers from the application of ss. 9 and 10, violate s. 2(b) of the Charter in a manner that is not justified by s. 1.
[4] Ontario appeals only from the invalidation of ss. 9 and 12(1)(d) of the Regulation.[2]
NATURE OF THE APPEAL
[5] Section 9 of the Regulation, in combination with s. 5(6) of the Act, provides that if a person makes a false statement to gain entry onto prescribed agricultural premises, and then carries out an act that would otherwise be prohibited under the Act, any consent from the premises’ owner is considered to have been obtained through false pretenses and is deemed never to have been given. The person would therefore be a trespasser, and subject to penalties under the Act.
[6] The application judge found that s. 9 targets people who understate their qualifications or deny affiliations with animal-rights groups in order to gain access to places where animals are raised or slaughtered. In the application judge’s view, the provision went further than necessary to advance the purposes of the Act since a person could be found to be a trespasser even though they were a model employee who had adhered to all biosecurity protocols, treated animals with the highest degree of care, and ensured the safety of their co-workers.
[7] Ontario intends to argue, inter alia, that the application judge erred because s. 2(b) of the Charter does not insulate persons from penal sanctions in circumstances where they privately make false statements that cause other people to waive legal rights enacted for their protection. Ontario will also argue that s. 2(b) does not provide a right to access private property to gather information, even for animal welfare exposés.
[8] Subsection 12(1)(d) of the Regulation creates an exemption from the prohibition in s. 9 for whistleblowers who are employees and who meet certain conditions, including that they have not caused harm to an animal. While s. 12(1)(d) has subsequently been amended, at the time of the application it provided that a person who obtains information or evidence of harm to a farm animal, or with respect to food safety or harm to an individual, and discloses the information to a police officer or other authority “as soon as practicable”, would not be in violation of s. 9 of the Regulation.[3] The application judge found that this provision compelled speech of the sort that infringes s. 2(b) since the requirement to report harm “as soon as practicable” may subject a person to prosecution if they do not disclose illegal conduct. He further found that this requirement likely requires the reporting of a single incident, thus preventing the person from observing and reporting further incidents of harm.
[9] Ontario intends to argue that s. 12(1)(d) does not impact expression to a degree that would constitute compelled speech. Rather, the requirement to report abuse to an authority is intended to ensure that harm done to animals or humans, or a threat to food safety is promptly addressed. Ontario also submits that whistleblowers could report anonymously and are not required to report a single incident.
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