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Agriculture - Security from Trespass and Protecting Food Safety Act, 2020 (STPFSA)
MORE CASES
Part 2
. Animal Justice v. Ontario (Attorney General)
In Animal Justice v. Ontario (Attorney General) (Ont CA, 2026) the Ontario Court of Appeal allowed a Crown appeal, this brought against Superior Court findings that "invalidated several sections of the Act [SS: the 'Security from Trespass and Protecting Food Safety Act, 2020' (STPFSA)] and associated Regulation on the basis that these provisions intentionally limited the respondents’ freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms, and that the limits are not justified".
Here the court reviews the purpose and structure of the STPFSA:I. Introduction
[1] The undercover exposé is a mainstay of journalism, deployed where suspected wrongdoing can be easily hidden or denied, frustrating public accountability. The impact of the exposé can be significant: galvanizing public opinion, flagging bad actors, prompting public authorities to take enforcement action, and provoking legislative change. Because of that potential impact, undercover exposés have also been used by advocacy groups seeking to expose what they consider to be scandalous or controversial practices in a variety of contexts.
[2] Germane to this case, undercover exposés have been used by animal care activists to target the practices of Ontario animal farms and processing facilities. The goals of animal care activists are various, but extend beyond better compliance with existing regulation to legislative reform and shifting public attitudes away from the consumption of animal products. The means employed by animal care activists are also various.
[3] In response to perceived threats to the integrity of farm operations posed by activists, the Ontario Legislature enacted the Security from Trespass and Protecting Food Safety Act, 2020, S.O. 2020, c. 9 (the Act) and the Minister as defined in the Act made an associated regulation, O. Reg. 701/20 (the Regulation). The stated purpose of the legislation is to combat threats to agricultural production and farm operations posed by farm trespassers including, and predominantly, those who pose as farm workers but are covertly documenting animal treatment or subverting farm operations or who otherwise pose a risk to agricultural food supply.
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B. The Statutory Framework
1. The Act and Regulation
a. Legislative purpose
[11] Ontario argues on appeal that the legislation was introduced in response to demands from industry stakeholders to address ongoing conflict with animal rights activists. Industry stakeholders asked for legislative tools to prevent interference with farm operations by animal rights activists including trespass, unauthorized release of farm animals, disruption of transport and interference with animals that resulted in harm or a serious risk of harm both to animals and persons. Thus, the purpose clause at s. 1 provides:The purposes of this Act are to prohibit trespassing on farms and other properties on which farm animals are located and to prohibit other interferences with farm animals in order to,
(a) eliminate or reduce the unique risks that are created when individuals trespass on those properties or interfere with farm animals, including the risk of exposing farm animals to disease and stress as well as the risk of introducing contaminants into the food supply;
(b) protect farm animals and the food supply chain from the risks described in clause (a);
(c) protect the safety of farmers, their families and persons working in or on farms, animal processing facilities and prescribed premises as well as the safety of drivers of motor vehicles transporting farm animals; and
(d) prevent any adverse effects the risks described in clause (a) may have on Ontario’s overall economy. b. Trespass provisions
[12] The mechanics chosen to carry out these purposes are prohibitions against entering an “animal protection zone” of a farm or an animal processing facility or other prescribed premises without the prior consent of the owner or occupier: ss. 5(1)-(3). The Act also prohibits unauthorized interference with farm animals whether on the farm (s. 5(4)) or in transit (s. 6(2)), and the obstruction of transport vehicles (s. 6(1)). Contravening these provisions constitutes an offence punishable by fine: ss. 14(1) and 15.
[13] The dispute in this appeal is largely focused on the operation of ss. 5 and 6, which together with associated regulations prohibit persons from interacting with animals in a designated protection zone and from entering an animal protection zone without prior consent. Of particular importance on this appeal are ss. 5(6) and 6(4), which provide that the use of false pretences to obtain consent to what would otherwise be a trespass or unauthorized interference with a farm animal invalidates the consent so obtained. Use of false pretences to obtain consent and by means of that consent do anything otherwise prohibited (such as entering an animal protection zone) is itself an offence under the Act: s. 14(2).
c. False pretences
[14] The Regulation stipulates what constitutes false pretences in ss. 9 and 10.
[15] Section 9 provides:A person who gives a false statement to the owner or occupier of a farm, animal processing facility or prescribed premises or to the driver of a motor vehicle transporting farm animals and who obtains the consent of the owner, occupier or driver to carry out an act that, without the consent, is prohibited under subsection 5 (1), (2), (3) or (4) or 6 (2) of the Act, is considered to have obtained the consent under false pretences for the purposes of subsections 5 (6), 6 (4) and 14 (2) of the Act if,
(a) the statement is made either orally or in writing;
(b) the false statement is given for the purpose of obtaining the consent;
(c) the owner, occupier or driver provides the consent in reliance on the false statement; and
(d) as a result of the consent being given, the person making the statement carries out an act that would otherwise be prohibited under the Act. [16] Section 10 further extends the definition of false pretences to apply to a person who falsely claims to possess necessary qualifications in order to obtain employment at a farm.
[17] It is important to note that making a false statement is not, in itself, prohibited. Entering an animal protection zone or interfering with a farm animal without consent are prohibited, and consent is not valid if it was obtained under false pretences.
d. Exception for journalists
[18] There are two exceptions provided in the Regulation for what would otherwise constitute false pretences: one exception for journalists in s. 11 and one for whistleblowers in s. 12. Following the release of the decision below, Ontario made several amendments to these provisions to clarify, alter or remove certain subsections that were found to be infringing by the application judge, including ss. 11(1)(d)-(e), 12(1)(c)-(d), 12(2)(a)(i)-(ii) and 12(2)(c). On appeal, the relevant version of the Regulation is the version considered by the application judge: Reference re Bill 30, An Act to Amend the Education Act (Ont.), 1987 CanLII 65 (SCC), [1987] 1 S.C.R. 1148, at pp. 1159-60. The subsequent citations therefore refer to the Regulation as it stood when the application was decided.
[19] The exception for journalists is set out in s. 11(1). It provides that despite ss. 9 and 10, consent obtained by a false statement shall not be considered to have been obtained under false pretences if the person making the statement is a journalist and:(a) the false statement does not imply or express that the journalist possesses the qualifications necessary to do a particular task or job in a manner that would not cause harm to farm animals, harm with respect to food safety or harm to an individual, when in fact the journalist does not possess those qualifications;
(b) the journalist, while acting in a professional capacity and for a valid journalistic purpose, enters in or on an animal protection zone, or gains access to a motor vehicle transporting farm animals, in order to gather information and disseminate that information to the public;
(c) the journalist complies with all biosecurity measures relating to farm animals being kept in animal protection zones on the farm, animal processing facility or prescribed premises or being transported by the motor vehicle;
(d) the journalist does not cause or contribute to causing harm to a farm animal, harm with respect to food safety or harm to an individual; and
(e) the owner or occupier of the farm, animal processing facility or the prescribed premises or the driver of the motor vehicle, as the case may be, does not ask the journalist to leave the farm, facility or premises or the area where the motor vehicle is located, or to stop interfering or interacting with farm animals, before the journalist has completed gathering information. [20] Journalist is a defined term and, under s. 11(2), denotes a person who:(a) is employed or hired by, or works in connection with, the news media, a press association, news agency, wire service or post-secondary journalism course or program, and
(b) contributes directly to the collection, writing or production of information for dissemination by the news media or other entity referred to in clause (a) to the public in the public interest; News media is defined as “corporations or entities whose primary function is to disseminate information to the general public on a regular basis, whether in writing or by radio, television or similar electronic means.”
e. Exception for whistleblowers
[21] The further exception provided for employees acting as whistleblowers is set out in s. 12. Section 12 provides an exception to liability under ss. 9 and 10 where the person who gave the false statement is an employee and, as a result of the false statement and the consent obtained, “the person who gave the false statement was able to obtain information or evidence of harm to a farm animal, harm with respect to food safety or harm to an individual, or another illegal activity, being carried out on a farm, animal processing facility or prescribed premises or in or near a motor vehicle transporting farm animals”.
[22] Section 12(1)(d) sets out as a condition to exercising the whistleblower exception that the whistleblower must “disclos[e] the information or evidence ... to a police officer or other authority as soon as practicable after obtaining the information or evidence.” Further conditions are set out in s. 12(2). . 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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