Constitutional challenge hearing for trespassing bill wraps up in court

The three-day hearing scrutinizing whether Ontario’s Security from Trespass and Protecting Food Safety Act (STPFSA) infringes on the Canadian Charter of Rights has wrapped.

“The government isn’t making it any harder to collect information today than it did before this enactment was passed,” said Robin Basu, Ministry of the Attorney General, general counsel lawyer, during the trial, which took place in a Toronto court Oct. 30 to Nov. 1. “Because you still didn’t have the right to go on a farm. And you still didn’t have the right to use false pretenses to get on a farm.”

Why it Matters:Arguments wrapped Nov.1 on a multi-day hearing challenging the constitutionality of the Security from Trespass and Protecting Food Safety Act. A decision is expected in the New Year.

In March 2021, Camille Labchuk, executive director of Animal Justice, and co-applicants Jessica Scott-Reid, advocate and freelance columnist, and Louise Jorgensen, Toronto Cow Save organizer, filed an application challenging the constitutionality of STPFSA, colloquially known as Bill 156.

The application alleged the Act infringed upon sections of The Canadian Charter of Rights and Freedoms addressing freedom of the press, freedom of expression, and the right to peaceful assembly in addition to excessively harsh arrest and penalty provisions within the trespass regulations.

“We say the appropriate remedy for these constitutional violations is for the provisions of the Act that we are challenging and the regulation to be declared of no force or effect under Section 52 of the Constitution Act,” said Andrea Gonsalves, partner at Stockwoods LLP, during her opening statement on behalf of Animal Justice.

The first two days of the hearing in front of Superior Court Justice Judge Markus Koehnen consisted of the applicants arguing the freedom to expose animal abuse, protest, and educate the public without illegal speech restrictions was a necessity. 

In the latter part of day two into day three, counsel for the Attorney General argued the legal implications of trespassing and fraud, biosecurity impacts, livestock transportation concerns, private property rights, and freedom of expression laws in Canada and the exemptions for journalists regarding undercover investigations.

Using case law, Basu argued the Act doesn’t curtail expressive conduct because an individual has no right to use private property for expressive purposes, and lying to gain access to an animal protection zone is illegal.

Intervenor Stephanie DiGiuseppe, counsel for the Regan Russell Foundation, said the government’s prohibition on bear witness protests suppresses a fundamental form of public expression, which is unconstitutional. 

“The case law broadly supports the idea that some risk to safety is simply tolerable in protest activities,” DiGiuseppe explained. “And that public safety is not, as I said at the outset, a magic incantation that can be just invoked to justify incursions on expressive rights.”

In response, Basu provided the judge with pre- and post-Act verified images and videos, some posted by Jorgensen, demonstrating the actions of animal activists bearing witness, undercover investigations, and occupations which were, in part, the impetus behind crafting the Act.

“You’ll see in the video that they get just as close as they did before, in practice. They’re able to film inside the truck, and they can actually see the udders, they can see the feet, they can see the heads of the, in that case, cattle,” he said, referring to a specific video. “So, in my respectful submission, it’s very clear that they were able to do essentially everything they could do before except not touch the animals or provide them with liquids or other substances.”

Lillianne Cadeaux-Shaw, speaking for the Centre for Free Expression, a think tank hosted at the Toronto Metropolitan University specializing in free expression and the public’s right to know, said the Act impedes whistleblower expression.

She suggested temporary foreign workers and genuine employees, not animal advocates who use falsehoods to secure employment, could be entangled in the Act when faced with the decision to disclose what they’ve witnessed before obtaining sufficient evidence due to the fraudulent access and the outlined disclosure time frames.

“The duty to report harm to an animal to the authorities, especially where there’s a regime like the PAWS Act, is certainly Section 1 justified,” rebutted Basu.

“If you find an animal in distress, the fact that we as a society want to make sure that doesn’t happen, you can (report) do it confidentially.”

Judge Koehnen said there won’t likely be a ruling on the challenge until early 2024.