OSPCA ACT Charter Challenge – Heard at Last by Shirley Dolan

Shirley Dolan
Shirley Dolan

When the Ontario Landowners Association embarked on a charter challenge of the Ontario Society for the Prevention of Cruelty of Animals (OSPCA) Act in October 2013, little did we realize that it we would wait over four and a half years to be heard in court.

The notice of application was filed in Perth on October 18, 2013 and asked the following questions:

  1. Whether section 11 of the OSPCA Act breaches section 7 of the Canadian Charter of Rights and Freedoms [the Charter] by granting police powers to a private organization without due restraints, accountability and transparency;
  2. Whether various sections of the OSPCA Act breach section 7 of the Charter by incorporating a definition of “distress” which is unconstitutionally vague and /or overbroad;  (Withdrawn)
  3. Whether various sections of the OSPCA Act breach section 8 of the Charter by authorizing unreasonable searches of peoples’ homes, farms and seizures of their animals without judicial authorization or oversight; and
  4. Whether offences set out in the OSPCA Act are criminal in nature, falling outside the province’s jurisdiction, and therefore breach sections 91 and 92 of the Constitution Act, 1982.

Jeff Bogaerts agreed to be the applicant. Counsel for the application is Kurtis R. Andrews, an Ottawa based lawyer, who practices constitutional law, animal welfare law and other areas of law across Ontario.

We knew our questions would not be popular with the Attorney General’s Office, but we were somewhat unprepared when in June 2015, the AG files a motion to dismiss the entire case. Most of the preliminary work to prepare for the trail had been completed but we now had to respond and argue against the motion.

The first date to hear the motion in October 2015 had to be postponed when the Judge recused himself. A second date, January 2016 was scheduled, and a decision given in June 2016 to proceed with the hearing.  Some of the Application’s evidence was removed and the application itself was narrowed with the removal of Question 2.

It would still be almost another two years before our hearing was finally set for May 16, 2018. The hearing concluded after one full day of submissions by Kurtis Andrews, the AG, and by intervenor Animal Justice.

We believe that our arguments are solid but of course we will not know the result probably for another six months.

In the meantime, we know that our application to question the constitutionality of the OSPCA Act has had an effect. Says OLA President Tom Black: “would like to remind people of the difference that we have made already, just by challenging this Act…before we did this action my phone was always ringing with some unfortunate animal owner on the other end looking for help….the Landowner Magazine was full of sad stories of people being abused by the OSPCA….those stories have dropped to the point that we hardly get a call anymore.”

And if we are successful, there is a chance for this Act to be rewritten with the protection included to stop the abuse of people by over-exuberant enforcement officers.

For those interested in more details of the charter challenge, please visit www.FixtheLaw.ca. There you can read about the process and access the court documents. Its also not too late to donate, no matter how small. Just $10 would go a long way to completing our payment. See our “How to Contribute” page https://www.fixthelaw.ca/how-to-contribute/.

The OLA thanks all of you for your support throughout this charter challenge. We could not have done it without you.