Case was Canada's first court challenge of an 'ag gag' law
An Ontario Superior Court has struck down several provisions in Ontario’s so-called “ag gag” law, which restricts common tactics animal rights activists employ to investigate the agricultural industry for animal cruelty.
Superior Court Justice Markus Koehnen found several provisions in the Security from Trespass and Protecting Food Safety Act violated the right to freedom of expression under s. 2(b) of the Charter. However, Koehnen stopped short of finding the Act’s restrictions on protests near slaughterhouses unconstitutional, as the applicants had argued.
Animal Justice, a national animal law advocacy organization, and two animal rights activists brought the challenge. Animal Alliance of Canada, the Centre for Free Expression, and the Regan Russell Foundation were intervenors.
“Overall, this decision is a huge victory for animals and for freedom of expression,” says Kaitlyn Mitchell, director of legal advocacy at Animal Justice Canada. “It shows that governments can't trample Canadians' right to free expression in order to protect the animal agriculture industry from bad publicity.”
Agricultural gag laws restrict specific methods that animal rights activists use to expose animal cruelty and investigate the meat, dairy, egg, and fur-farming industries. These methods include covertly photographing and filming farms and slaughterhouses by undercover employees and interacting with and documenting animals in trucks during transport to slaughterhouses.
Ag gag laws are common in the US. Manitoba and Alberta have laws in effect, and a federal law, Bill C-275, An Act to amend the Health of Animals Act, has progressed through the House of Commons and is currently in second reading in the Senate. According to Animal Justice, ag-gag laws have been ruled unconstitutional in six US states.
Ontario enacted the Security from Trespass and Protecting Food Safety Act in 2020. The law requires consent from the owner or occupier for anyone to be in certain agricultural facilities. That consent is voided if obtained under false pretences. Sections nine and ten of the regulations make it an offence to use a false statement to gain access to agricultural premises and to claim qualifications one does not have to get a job there.
In Animal Justice et al. v A.G of Ontario, 2024 ONSC 175, Ontario submitted that the Act “is aimed at protecting animal safety, biosecurity, and the safety of farmers as well as preventing economic harm that can arise from threats to animal safety and biosecurity.”
The applicants argued that the provisions in question targeted animal rights activists who get jobs in agricultural production facilities to document the treatment of animals and then share the footage with journalists or post it online. Businesses attempt to weed out these activists by asking whether job candidates have a university degree or are affiliated with an animal rights group. Under the law, candidates who provide false responses to these questions will have voided their consent to be on the property and will be liable to penalties under the Act. The applicants argued this was a violation of the Charter right to free expression under s. 2(b).
Justice Markus Koehnen found that s. 9 of the regulations was overly broad and disproportionate and not saved by s. 1. He found s. 10 of the regulations is a minimal intrusion on freedom of expression and was saved by s. 1, which allows limits of Charter rights if those limits can be shown to be reasonable in a free and democratic society. Section 10 is a proportionate response to the express objectives of the Act because the exaggeration of an employee’s qualifications “can lead to serious harm for biosecurity and animal safety.”
Justice Koehnen also found ss. 11(1)(d) and (e); 12(1)(c) and (d); 12(2)(a)(i) and (ii), and 12(2)(c) of the regulations were an unconstitutional infringement on freedom of expression, and not saved by s. 1.
Animal Justice, says Mitchell, was disappointed that the judge rejected their argument that the Act’s restrictions on vigils and protest activities outside of slaughterhouses are unconstitutional.
“Our belief is that people’s protest activities on public property and near slaughterhouses are important forms of expression and that they too go to the heart of what s.2(b) is all about,” she says. “They're all about fostering open debate and discussion in a free and democratic society. So, we are quite concerned with that part of the decision.”
