Activists challenge Bill 156 constitutionality

Animal Justice and two co-applicants caused a media stir in March by submitting an application challenging the constitutionality of what they call Ontario’s “ag-gag” law. 

The Security from Trespass and Protecting Food Safety Act, 2020, colloquially known as Bill 156, is aimed at deterring activist disruptions of farm and food processors, and closing the gap in current laws to protect the agriculture sector against trespassing.

Why it matters: The act that limits farm trespassing has been popular with farmers worried about uninvited interlopers at the places where they work and live.

However, the appeal would have to rest on division of power and constitutional arguments, which are difficult to prove, says an Ottawa lawyer. Don Buckingham also added that legislation or part of it can be struck down based on small parts of an act.

The act infringes upon sections of the Canadian Charter of Rights and Freedoms that address freedom of expression, freedom of the press and right to peaceful assembly, said Camille Labchuk, executive director of Animal Justice, and co-applicants Jessica Scott-Reid, animal advocate and freelance columnist, and Louise Jorgensen, Toronto Cow Save organizer, in their submission. 

Their application further alleges the issues regarding the trespass regulations are “compounded by deliberately harsh and excessive arrest and penalty provisions, which are themselves unconstitutional.” 

Labchuk said the act allows facility owners to arrest those they believe to violate the act “in the absence of objectively reasonable and probable grounds to justify such action.”

Stating that the government doesn’t regulate or monitor animal welfare on farms, Labchuk said hidden camera footage is often the only avenue the public has to learn about poor conditions and animal cruelty in the food supply. 

Ontario recently also passed some of the strongest animal welfare legislation in North America.

“We are hopeful the court will strike down this troubling ag-gag law and make it clear that Ontario and other provinces cannot interfere with Charter rights to protect the profits of the meat industry,” said Labchuk in a media release.

Buckingham, a lawyer and consultant in agriculture, food and regulation in Ottawa with 35 years of experience, said it’s common practice for legislation to be reviewed by government legal counsel to ensure it fits the parameters of the Constitution and would hold up in court. 

Even if the legislation was mostly compliant, if there was a tiny portion that toed the line of constitutional interpretation, the court could selectively modify that specific portion because it falls outside of legislative competence. 

Once an application is submitted and is before the court, applicants must state their case and show their interest in the legislation. The court would then issue a preliminary decision to move forward on the merits of the argument or quash the application.

“It just strikes me, as a protester on a farm about animal rights, it seems like a really long stretch to think that any of the Charter rights have been violated,” he said.

What are the steps to challenging an act?

Buckingham spent a great deal of time addressing constitutional arguments because agriculture is a specialized area.

Section 95 of the Constitution indicates both the federal and provincial governments can legislate when addressing codes, permits, equal rights and legislation for laws concerning agriculture and immigration. 

If the argument suggested the act was unconstitutional from a division of power aspect, Buckingham would be surprised if it gained traction given that it deals specifically with on-farm activity, which the province can specifically legislate. Ontario has almost unlimited power to make laws concerning property under Section 92(13) of the Constitution, he said.

While Animal Justice is the first to launch an application against the Security from Trespass Act, they are not the first to voice concerns the Act contravened aspects of the Constitution. 

Another argument could be made that the act is criminal law, which would be an incursion into federal jurisdiction, says Buckingham. However the act lacks criminal sanctions that are usually found in federal law.

“It has contraventions that are all under two years, and those are usually the hallmarks of it being a provincial violation and not a federal offence,” he said. “The other argument they could make is that somehow this legislation restricts the rights of individuals, and again, that’s a real long shot.”

Opposition focuses on what in the bill might not affect food security.

During the journey from Bill 156 to becoming law, animal rights activists, law professors, lawyers and the Canadian Civil Liberties Association (CCLA) submitted letters of concern to the Standing Committee on General Government.

CCLA’s submission hinted at potential arguments against the Act including acquiring access to facilities under false pretences and the length of the time in which people could be charged after an offence was committed have nothing to do with increasing safety for farmers or the food supply.

“This extension of the time period for pursuing an offence is wholly divorced from the protection and biosecurity goals,” said the CCLA. “But directly related to deterring whistleblowers from coming forward.” 

The CCLA said if a journalist applied for and obtained an on-farm job to investigate the conditions of migrant workers during COVID-19, they would be at risk under Section 4(6) because “false pretences” is too vague a term. They also charged the regulation defining an animal protection zone, where a person could face charges for entering, even if the area was unmarked by signage, left too much leeway. 

A long road yet

Animal Justice argued in its media release that the striking down of ag-gag laws in the United States, specifically Idaho, laid a precedent for the same result in Ontario. 

American laws targeted specific actions, such as filming within a barn, and legal experts weren’t surprised they were struck down.

Buckingham would not speak specifically to the Animal Justice application but said, in general, rulings are based on the language of Canadian law, the principles of legislative interpretation and Supreme Court of Canada decisions. 

“Binding precedent only comes from the Supreme Court of Canada and from the court of appeal in your province, not from any superior courts from other provinces or countries,” he said.

With the number of applications levied under family law, criminal law and mental health-based law, the queue is long. That casts doubt on whether constitutional questions around the new trespass act would reach a court agenda.

It could take years for the application to be addressed and resolved.Until then, the current legislation remains intact, he said. 

Any decision made at the Superior Court level would likely be appealed and finish at the Supreme Court of Canada. 

“It could be a very long time before (it’s decided),” said Buckingham. 

Recent acquittal provides example of where act could be used

Keith Currie, vice-president of the Canadian Federation of Agriculture and past-president of the Ontario Federation of Agriculture, said Bill 156 closes the loopholes commonly used to avoid conviction under the Criminal Code of Canada.

He pointed to the recent finding of not guilty in the Klimowicz-Freeman Mink Farm trial in North Frontenac.

Malcolm Klimowicz was acquitted on charges of break and enter with the intent to cause mischief after the prosecution failed to prove that mischief had been caused.

Currie said the judicial thought process was one of “the animals didn’t get sick so it wasn’t an issue.”

This type of argument is what the trespassing act helps avoid, said Currie.

“The bill is to prevent people from coming in, so there never is the opportunity for disease to enter the barn, but the judge doesn’t understand animal agriculture,” he said. “Just because something didn’t happen doesn’t mean that it couldn’t have.”