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OSPCA police powers ruled unconstitutional

Ontario court gives provincial government 12 months to remedy faults in legislation

An Ontario judge has ruled some of police and investigative powers held by the OSPCA, the organization which oversees animal cruelty and welfare laws in the province, are unconstitutional. The provincial government has one year to remedy faults found by the judge in the OSPCA Act.

By Dave Flaherty/The Oshawa Express

The future of the province’s largest animal welfare organization is unclear after a recent Ontario court ruling.

Ontario Superior Court Justice Tim Minnema ruled some of the powers given to the Ontario Society for the Protection of Cruelty to Animals (OSPCA) by the provincial government are unconstitutional.

In a decision released earlier this month, Minnema struck down sections of the OSPCA Act which assign “police and other investigative powers” to the organization, and gave the provincial government one year to address the situation.

Minnema’s ruling was in response to a constitutional challenge made by Jeffrey Bogaerts, a paralegal with a law firm that deals with animal welfare law.

The OSPCA Act, first brought into law in 1919, gives the organization the authority to enforce provincial and federal animal cruelty laws.

Under this act, OSPCA investigators and agents have the capability to enter homes or businesses if an animal is believed to be in distress or danger.

The organization is a private charity, and therefore not an agent of the province.

As opposed to other organizations that have delegated police and investigative powers, Minnema said the OSPCA is not subject to the Police Services Act, Ombudsman Act, and the Freedom of Information and Protection of Privacy Act.

“Overall, the OSPCA appears to be an organization that operates in a way that is shielded from public view while at the same time fulfilling clearly public functions…although charged with law enforcement responsibilities, the OSPCA is opaque, insular, unaccountable and potentially subject to external influence, and as such Ontarians cannot be confident that the laws it enforces will be fairly and impartially administered,” Minnema wrote in his decision.

The OSPCA provides local investigative services for the Humane Society of Durham Region.

The local Humane Society was incorporated in 1988 as Durham Animal Welfare and later became an independent operating affiliate of the OSPCA.

The Oshawa Express reached out to the Humane Society but the shelter manager said they could not speak directly on the court’s ruling.

OSPCA communications director Melissa Kosowan told The Express there were approximately 400 animal cruelty complaints made in Durham last year.

In a media statement, Brian Schiller, general counsel for the OSPCA, said, “there was no allegation that the Ontario SPCA was at fault for anything regarding the subject-matter of the application and the court did not criticize any conduct on the part of the Ontario SPCA in its administration of the Ontario SPCA Act.”

Further, Schiller said the OSPCA has “never rejected the idea of provincial oversight and is prepared to consider any reasonable options put to it by the province to continue its animal protection work.”

Despite Bogaerts’ concerns that were brought to the court, Minnema said: “this challenge is not an attack on the OSPCA itself.”

“He saw the OSPCA as a victim of legislation, and acknowledged it may be doing the best it can in the circumstances,” he wrote.

In giving the province a year, Minnema said he was taking steps to maintain the protection of animals and not to leave the organization totally without influence.

“The declaration taking effect immediately could deprive animals of the protections afforded by the OSPCA Act while the province considers its next step. Compromising animal welfare even for a transitional period would be an untenable result in my view,” he stated in his ruling. “Also, the immediate implementation of this decision without an opportunity to plan could adversely impact staff at the OSPCA and its affiliates.”

According to the OSPCA’s 2017 annual report (the 2018 report has yet to be released), the agency investigated 15,519 complaints that year.

As a result, 573 provincial charges and 21 criminal charges were laid, and 1,220 animals were retrieved as a result of an investigation.