Farm trespass regulation being challenged on constitutional grounds

It’s unsurprising that animal rights extremist groups are challenging Ontario’s Security from Trespass and Protecting Food Safety Act, passed in 2020.

The challenge, levelled by Animal Justice, alleges that the regulation violates the Canadian Charter of Rights and Freedoms’ guarantee of freedom of expression.

The province says its bill was crafted “in a manner to protect the safety our food supply and the security of farmers from risky trespass activities while also protecting the right for people to participate in lawful protests, the ability of the media to investigate and report on animal mistreatment, as well as the protection of whistleblowers to report on animal abuse.”

Animal Justice claims that the act is unconstitutional, as it prohibits entering farms or slaughterhouses under false pretences, “making it illegal for journalists, animal protection advocates, and others to get hired at a farm or slaughterhouse to document and publicly expose animal abuse or other unlawful activities.”

Bruce Pardy, a law professor at Queen’s University with expertise in property law and constitutional law, says that common law property rights give owners the right to exclude anyone from their land — including trespassers entering premises under false pretences — regardless of the motivation of the trespasser.

That right is reflected in the Trespass to Property Act and now in the Security from Trespass and Protecting Food Safety Act as well.

Pardy, who does not represent either party in the court proceedings, says that our constitutional right to freedom of expression protects the right to report and share information, and that a law that prohibited reporting of farm conditions could run counter to the Charter. However, freedom of expression does not include the right to enter private property without the owner’s consent to gain access to information.

People who enter farm premises legally, and happen to observe animal welfare violations, are protected under the “whistle-blower” section of the regulation promulgated under the act. In fact, should someone see animal abuse or neglect, they are obligated to report such to authorities.

In a statement to RealAgriculture, a representative of OMAFRA says, “Our government has a zero-tolerance approach to animal abuse in Ontario. That is why we passed the Provincial Animal Welfare Services Act and hired provincial inspectors to investigate and protect the welfare of animals in Ontario when abuse is reported. Incidents of animals in distress should be reported to the Ontario Animal Protection Call Centre at 1-833-9-ANIMAL (1-833-926-4625). As this matter is currently subject to litigation, it would be inappropriate to comment any further.”

The challenge to the Ontario regulation comes just as a Private Member’s bill written in a similar vein has passed second reading in the House of Commons, moving the issue to a federal level.

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