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Charter - s.2(b) Freedom of Expression (7). 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".
The court considers Charter s.2(b) ['freedom of expression'], here particularly it's interaction with property rights:[57] Section 2(b) of the Charter, often referred to in shorthand as “freedom of expression”, provides that everyone has “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. It is understood broadly, such that very little action that can be characterized as communicative has been found to fall outside of its scope. In practice, this has meant that comparatively little analytical work is done at the s. 2(b) stage, with the heavy lifting done in ascertaining what constitutes reasonable limits to this freedom under s. 1: see Bracken v. Fort Erie (Town), 2017 ONCA 668, 137 O.R. (3d) 161, at paras. 25-34.
[58] That said, s. 2(b) has internal limits and some scholars, such as Professor Dwight Newman have documented a trend towards greater juristic attention to developing those limits: Halsbury’s Laws of Canada, “Constitutional Law – Charter of Rights,” (Toronto: LexisNexis Canada, 2023 Reissue) at HCHR-16 and 39; see also Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, 2 S.C.R. 845 (“Toronto (City) (SCC)”), at paras. 14-15. Thus the scope of s. 2(b) protection does not extend to acts of violence or threats of violence: R. v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 S.C.R. 697; R. v. Khawaja, 2012 SCC 69, 3 S.C.R. 555. Additionally, in R. v. National Post, 2010 SCC 16, 1 S.C.R. 477, the Supreme Court rejected the argument that techniques of news gathering, being acts that are instrumental to the exercise of freedom of expression, would necessarily come within the scope of s. 2(b) themselves, simply because they facilitated the ultimate expression: at para. 38.
[59] The analytical framework of s. 2(b) also distinguishes between legislation whose purpose is to limit expression, and legislation that restricts expression as a side-effect of achieving some other purpose. Where the legislation fits into the latter category, there is an additional obligation on Charter claimants. Claimants must establish that the expression in question promotes one of three purposes of expression: enabling democratic discourse, facilitating truth seeking, and contributing to personal fulfillment: Montréal (City), at para. 83.
[60] Significantly for this appeal, s. 2(b) doctrine also distinguishes between positive and negative rights claims. As explained in Baier v. Alberta, 2007 SCC 31, 2 S.C.R. 673, a negative rights claim is one where the claimant seeks “freedom from government legislation or action suppressing an expressive activity in which people would be otherwise free to engage”: at para. 35; see also Toronto (City) (SCC), at para. 16. Conversely, a positive rights claim is one that requires government to legislate or otherwise act so as to support or facilitate freedom of expression: Toronto (City) (SCC), at para. 18. Positive rights claims, which impose obligations on government to act in some way, face an elevated threshold. The claimant must satisfy the inquiry: “is the claim grounded in the fundamental Charter freedom of expression, such that, by denying access to a statutory platform or by otherwise failing to act, the government has either substantially interfered with freedom of expression, or had the purpose of interfering with freedom of expression?”: Toronto (City) (SCC), at para. 25 (emphasis added). Substantial interference is key to the claimant’s burden. The applicant must establish “a lack of access to a statutory platform [that] has the effect of radically frustrating expression to such an extent that meaningful expression is ‘effectively preclude[d]’:” Toronto (City) (SCC), at para. 27.
[61] “Substantially interfered” is a much higher bar than that set by the Irwin Toy/Montréal (City) test for negative rights claims: “[w]hile meaningful expression need not be rendered absolutely impossible, we stress that effective preclusion represents an exceedingly high bar that would be met only in extreme and rare cases”: Toronto (City) (SCC), at para. 27.
[62] Much turns, then, on whether the claim is more appropriately characterized as a positive or negative rights claim. The application judge concluded that it is properly characterized as a negative rights claim because, but for the Act and Regulation, persons would be “otherwise free to gain entry to other premises by using false pretence without punishment by the state … it is the penalization of the false pretences that the applicants object to.”
[63] The problem with this framing is that it entirely loses sight of the rights of the property owner/occupier and corresponding obligations of excluded persons. People are not free to do things – in the sense used in the jurisprudence – that others have a legal right that they not do, regardless of whether the source of that duty sounds in public or private law, and regardless of whether the breach attracts a state-imposed sanction or a private law remedy such as damages, injunctive relief or a declaration. Trespass is tortious wrongdoing, regardless of whether the tort is committed via fraud or otherwise. The respondents either misunderstand the law of trespass or the nature of legal obligation: they either believe that it is not trespass to obtain admission by fraud if one nevertheless leaves promptly when found out, or they simply do not accept the law of trespass provides a reason to do or not do anything. With respect to the former – that it is not a trespass if one leaves when directed – this is not an accurate account of the law of trespass in Ontario. Consent to enter premises must be obtained freely and without fraud, and consent that is obtained by misrepresentation cannot shield a person from liability for trespass: Andrew Botterell et al., Fridman’s The Law of Torts in Canada, 4th ed. (Toronto: Carswell, 2020), at p. 30; see also R. v. Gibson, 1976 CanLII 953 (SK QB), [1976] 6 W.W.R. 484 (Sask. Dist. Ct.), at para. 9; Lee v. Hersh, [1993] B.C.W.L.D. 1138 (S.C.), at para. 142.
[64] The existence of a legal right and corresponding duty (in this case, the farmer’s right to exclude a person from a farm and that person’s corresponding duty not to enter) is one thing; remedy for breach is another. Where consent to enter premises is necessary and it is obtained by deception, such that had the truth been known consent would not have been given, there is no valid consent and there never was. The wrongdoing is not negated by the trespasser’s conditional willingness to leave the premises quietly if found out. People are simply not free, in the sense used by Baier and Toronto (City) (SCC), to observe only those legal duties that are immediately enforceable by fine or imprisonment.
[65] The latter alternative – that the respondents do not accept they have an obligation to comply with the law of trespass, and only comply because of the penalty imposed by the Act and Regulation – cannot affect the analysis. The respondents not only have no right to enter the premises, but have an obligation not to. What they are opposing is a sanction – the imposition of a fine – in order to reduce the cost of non-compliance. The complaint, so framed, is once again not that the government has limited expression, but that it is enforcing or supplementing the law of trespass. What the respondents frame as an objection to a penalty is in fact a wider objection to the entire edifice of trespass law. It is an assertion of entitlement to access the property of others for one’s own purpose. This constitutes a positive rights claim.
[66] Furthermore, the focus on the Act’s supposed penalization of false pretences is, in any event, misguided.
[67] It is true that there is an expression that is part of the substrata of the act proscribed by the operation of s. 9. But the expression itself is not a proscribed act, and the application judge erred in finding that it was. Notwithstanding s. 9, the respondents – like everyone else – are free to tell lies. What s. 9 does is assert the rights of the property owner against the trespasser. It deprives the deceiver of the practical benefit obtained by the deception – the permission to enter land from which they would otherwise have been lawfully excluded by the landowner. So far forth, the Act merely concretizes existing common law obligations. And because there are also public goods at stake, the Act creates a new set of rights and duties as between the trespasser and the Crown and therefore imposes public law sanctions for non-compliance. But lying simpliciter attracts no sanction of any kind. The public sanction – the fine – is only imposed on those who use deception to obtain consent to enter a farm and then also carry out some further prohibited act such as entering the animal protection zone or interfering with an animal.
[68] In any event, the purpose of the Charter claim advanced by the respondents is not to safeguard a practice of lying to farmers. Lying to farmers is simply a modality to access a property in order to record how animals are treated. Its only value to the respondents is that it is a means to achieve the end of gathering information to be used in an exposé to further a political cause. As in Toronto (City), it is not the expression that is of value to the respondents but the success of the enterprise: Toronto (City) v. Ontario (Attorney General), 2019 ONCA 732, 146 O.R. (3d) 705 (“Toronto (City) (ONCA)”), at para. 41, aff’d Toronto (City) (SCC), at paras. 38-39.
[69] The respondents must also confront the holding in National Post. As important as news reporting is, and as fundamental as it is to the health of a free society, its constitutional protection does not entail that any means used to gather information will also be constitutionally protected, or that any law that creates an impediment to news gathering is constitutionally suspect.
[70] The respondents’ claim has to stand or fall on the basis of the ultimate expression. Telling a lie for the sole purpose of gaining access to property is no more a matter of self-constitution, or any of the other core aspects of freedom of expression, than swiping a pilfered access card. It would be unreasonably technical and artificial to assess the s. 2(b) claim in any other way.
[71] To sum up, the respondents’ claim must be understood as a positive rights claim. The “platform” the respondents seek – and what they are denied by common law as well as the Act and Regulation – is access to the property of others on their own terms and for their own purposes. The respondents remain unrestricted in how they choose to communicate their messages about farm practices to the public. They can say what they like to whomever they like. What they are restricted from doing is entering farms without informed consent.
[72] This may impair their ability to gather the type of evidence they believe would be especially persuasive to the intended audience, in order to create a maximally impactful visual presentation. But the impact on the expression, which is a matter of degree, is simply too remote from the limit imposed; freedom of expression does not guarantee conditions most optimal for the successful reception of one’s message: Toronto (City) (SCC), at paras. 38-39; Toronto (City) (ONCA), at para. 41. Although information gathering from private sources can be an important precursor to some expression, it is not expression, and the good of expression cannot be reverse-engineered into constitutional protection of everything that precedes it.
[73] The respondents’ claim is not a modest one. Indeed, it would be difficult to articulate a principled limit on what the respondents propose. The argument advanced, were it accepted, would similarly support a finding that legislative prohibitions on hacking phones and other electronic communications, or on other means of electronic surveillance, would also substantially burden the expression of other activists and journalists who need to find and disseminate compromising material from private platforms for their public campaigns.
[74] These conclusions follow without regard to the exceptions established in the Regulation for journalists and whistleblowers. When these exceptions are considered, the unsuccessful s. 2(b) argument is weakened further.
[75] For the purposes of the s. 2(b) analysis, s. 5(6) of the Act cannot be assessed independently of s. 9 of the Regulation, and the effect of s. 9 cannot be assessed in isolation from the exceptions set out in ss. 11 and 12. They constitute a single, though complex, proposition of law, and considering them piecemeal risks misconceiving them.
2. The journalist exception – s. 11
[76] The s. 11 exception for journalists must be understood as a qualification, or further specification, of the s. 5(6) prohibition, to be read together with s. 9. It allows for journalists to obtain access to a farm under false pretences if: (i) the false statement used does not express or imply that the journalist has qualifications to do a job safely that the journalist does not have, (ii) the journalist does not cause harm to a person or animal, (iii) the journalist complies with biosecurity protocols, and (iv) the journalist is not asked to leave.
[77] A journalist is defined in the Regulation as someone who works for “news media”. “News media” itself is defined expansively to include “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.” The definition of news media, and thus of journalist, is not restricted to traditional legacy media. The essential restriction, then, is that the entity on whose behalf the individual is working must have as its primary function the dissemination of information to the general public on a regular basis. Effectively, this establishes a measure of accountability: the journalist is traceable to an ongoing entity whose reputation will be damaged if its journalists conduct themselves in an irresponsible manner. Nothing in the definition disqualifies niche online publications or newsletters. The audience must be general, but the media’s range of interest need not be.
[78] The effect of this provision is to lessen the burden on the respondents’ expression imposed by the Act. It would not seem to be a significant burden on an entity such as Animal Justice to establish a subsidiary whose sole or main purpose was, for example, making regular podcasts or disseminating visual or written content in some other medium. Neither would it be a significant burden on an individual to contract with such an entity for the purpose of producing an undercover exposé. The journalist exception is not particularly exacting.
3. The whistleblower exception – s. 12(1)(d)
[79] Having found a s. 2(b) infringement by the combined operation of ss. 5(6) and 9, the application judge addressed the whistleblower exception, together with the journalist exception, as part of the s. 1 justification analysis, and found that the justification fell short. But the application judge also found that s. 12(1)(d) constitutes an additional, free-standing, infringement of s. 2(b). Ontario appeals the finding that s. 12(1)(d) violates s. 2(b).
[80] The whistleblower exception in ss. 12(1)(a)-(c) provides that a false statement shall not be considered to have been obtained under false pretences if, essentially, the person who gave the false statement is an employee of the farm or facility, the false statement does not lead to harm to the animals or others, and as a result of the false statement and the consent obtained, the person “was able to obtain information or evidence of harm to a farm animal” or harm with respect to food safety or some other individual or some other illegal activity. Additionally, s. 12(1)(d) must be satisfied, which provides:
The person who gave the false statement discloses the information or evidence described in clause (c) to a police officer or other authority as soon as practicable after obtaining the information or evidence.
[81] The application judge found that the reporting requirement in s. 12(1)(d) was itself an instance of compelled speech and a violation of s. 2(b). The application judge reasoned that the provision not only compelled a statement to an authority, but also dictated the timing of the expression: “as soon as practicable”. The application judge accepted the respondents’ argument that by having to disclose more or less immediately, a person collecting the information would have to prematurely end an investigation and forego collecting evidence of a broad pattern of behaviour or of systemic abuse over time. This would weaken the force of the exposé and make it easier for a farm to counter the allegation with a denial or explanation that the recorded behaviour was only an isolated act of a rogue employee.
[82] Section 12(1)(d) does not constitute compelled speech. At its core, compelled speech entails forced expression of opinions one does not hold, or adherence to beliefs one rejects. It does not preclude regulatory reporting requirements such as this. It is not an infringement of s. 2(b).
[83] Following the test set out in McAteer v. Canada (Attorney General), 2014 ONCA 578, 121 O.R. (3d) 1, at para. 70, leave to appeal refused, [2014] S.C.C.A. No. 444, the respondent is required to establish that the provision has an adverse effect on expression and that the effect is worthy of constitutional disapprobation. In concluding that there is an adverse effect on expression and the compelled speech test is met, the application judge made several assumptions about the operation of s. 12(1)(d) which are questionable. Nothing in the text of s. 12(1)(d) states that the person making the report cannot do so anonymously, notwithstanding that non-anonymous reporting may, as a practical matter, better secure the protection of the section. Nothing – other than the cessation of the activity complained of – prevents a whistleblower from reporting multiple incidents sequentially. The effect of the Regulation is that where abuse has been discovered, it must be reported to an authority so the authority can intervene to address the immediate harm: the suffering of animals or the threat to food safety. The public good that is served by the immediate disclosure of this information justifies the reporting requirement. The requirement does not merit disapprobation.
[84] A further concern of the respondents is that the whistleblower exception is not broad enough. Specifically, s. 12(1)(c) provides immunity to a person who obtained consent through a false statement and “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”. The respondents interpret “another illegal activity” to mean that immunity is only provided to whistleblowers who have documented illegal activities. But, the argument goes, if the whistleblower believes a practice to be harmful to a farm animal, yet the practice is nevertheless legal, the whistleblower is not sheltered by this provision. This is significant because many of the practices that the respondents object to and wish to document are, we are told, common farm practices that are completely lawful. The respondents hope that by confronting the public with images of lawful mistreatment, the public will forswear the consumption of animal products, or demand better regulation, or both.
[85] For good reason, courts are reluctant to offer definitive interpretations of statutory provisions in the absence of a factual matrix. We do not have the necessary factual matrix to answer the interpretive question definitively. Nevertheless, even if the respondents’ interpretation is correct and the exception is as narrow as they claim, the documentation of lawful practices would be protected under the journalistic exception. This makes sense as whistleblowing and journalism, though they may be complementary, serve different functions. Whistleblowing, at least as conceived in the legislation, is primarily a matter of reporting abuses to authorities that are empowered to remedy them. Journalism is a matter of communicating to the public. Whistleblowers may work together with journalists, but the fundamental difference in the two missions makes sense of the different treatment in the Regulation. The concept of a whistleblower requires there to be a misdeed that is capable of remedy by an authority, and it requires that the whistle actually be blown. Neither requirement would necessarily apply, conceptually, to a journalist. Taken together, the two exceptions provide a broad range for gathering the type of images that the respondents say are essential to the production of exposés.
[86] None of this may be ideal from the perspective of a person who hopes to provoke greater reform by assembling the maximally complete dossier and to do so without any personal risk. But conditions for communicating a message – and communicating it through the chosen means of disseminating images – are made available. It cannot be said that there has been substantial interference with the respondents’ chosen expression as required by Baier.
4. Conclusion on s. 2(b)
[87] To sum up, the application judge erred in assessing the constitutionality of the impugned provisions using the negative rights framework of Irwin Toy/Montréal (City). What the respondents claim is access to the property of others in circumstances where others are not willing to give it to them. The impugned provisions supplement existing common law rights and remedies, both to enforce private property rights and to advance the public interest in protecting the integrity of the food supply chain. The respondents complain that the sanctions they now face make the cost of disregarding the law higher than what they are willing to pay. But there is no entitlement to a legal framework that permits one to trespass on terms one finds acceptable. A fine issued to secure compliance with a law is not to be understood as a licensing fee. What the respondents seek is a different legal platform.
[88] The purpose of the impugned legislation is not to prevent expression, although it imposes limits on activities that bear on expression. The effect of the legislation, when read as a whole, including the exceptions created for journalists and whistleblowers, does not substantially interfere with the respondents’ intended expression, as would be required by Baier to establish a positive rights claim.
[89] That is sufficient to dispose of the appeal. A section 1 analysis is therefore not required. However, the following provides guidance on how a s. 1 analysis is to be conducted.
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