Animal Justice and the interveners request the court to review sections 9, 11(1)(d) and (e), 12(1)(c) and (d), 12(2)(a)(i) and (ii), and 12(2)(c) of O. Reg. 701/20: General under the Security from Trespass and Protecting Food Safety Act, 2020.
The organization raised four contextual factors in this application: the increasing industrialization of animal husbandry, the nature of animal husbandry standards in Canada, the nature of accepted practices in Canada, and the usefulness of undercover exposés. Arguments made include:
- The trend of industrialization over the last few decades has been to consolidate animal husbandry into a smaller number of farms producing a larger number of animals with fewer employees.
- The nature and source of regulation of the livestock industry. The current regulation for treatment of any animal in Ontario is the Provincial Animal Welfare Services Act. Although one provision of that act makes it an offence to cause an animal to be in distress, that provision does not apply to animal husbandry carried out in accordance with administrative requirements.
- The standards themselves. The applicants point out that certain accepted practices in Canada would be illegal if applied to a pet and include practices that have been banned in jurisdictions like the U.K. and the EU.
- The fourth contextual factor involves undercover exposés. The applicants submit that the only way of bringing the conditions in which animals are raised to the public eye is through covert exposés.
The applicants and interveners assert the Act, and its regulations, violate their rights under the Canadian Charter of Rights and Freedoms (Charter) and request that the Court determine whether or not they violate s. 2(b) of the Charter or if they can be saved by s. 1 of the Charter which allows for certain infringements in justifiable circumstances.
To justify an infringement of a Charter right under s. 1, the government must demonstrate the measure: (i) furthers a pressing and substantial objective, (ii) is rationally connected to the objective, (iii) minimally impairs the right at issue, and (iv) is proportionate in that its benefits outweigh its deleterious effects i.e., the Oakes test. Sections 5(4) and 6(2) of the Act minimally impair freedom of expression and are saved by s. 1 of the Charter.
On April 2nd, an Ontario Superior Court judge found that several provisions in the province’s Security from Trespass and Protecting Food Safety Act violated the right to freedom of expression under s. 2(b) of the Charter of Rights and Freedoms but stopped short of finding restrictions on protests near slaughterhouses unconstitutional. Section 9 of the regulations was overly broad and disproportionate and not saved by section 1 of the Charter. Other sections of the regulations that were deemed unconstitutional relate to section 12 (at para. 110), where the whistleblower would have to know in advance whether certain farm activities that appear to be cruelty such as “piglet thumping”, a slaughterhouse method of killing piglets, is legal or illegal in order to determine if their actions would fall under the protected exceptions, which further restricts freedom of expression.
https://canlii.ca/t/k3thm