Animal rights group files legal challenge against Ontario’s new ‘ag gag’ law

The animal rights group Animal Justice has filed a lawsuit against the Ontario Government, saying recently enacted legislation makes an offence out of Charter protected methods activists use to expose animal cruelty.

The application challenges the constitutionality of a number of sections of the Security from Trespass and Protecting Food Safety Act. The legislation made it a crime to enter an agricultural facility under false pretences and to “interfere or interact” with animals in transit.

Animal Justice argues that these provisions are directed at two key tactics animal rights activists employ. The former prevents them from hiring up with a farm to go undercover and expose animal abuse, food safety risks and unsafe working conditions. The latter restricts their ability to “bear witness” to animals being transported to slaughterhouses, which targets peaceful protest, said Animal Justice in a press release.

“This is interfering with freedom of speech. That's really what it comes down to,” says Victoria Schroff, an animal law lawyer and Adjunct Professor of animal law at the University of British Columbia.

Animal Justice is challenging the Act on the basis it violates freedom of expression and freedom of the press, under s. 2(b) of the Charter, as well as peaceful assembly, under s. 2(c). The rights breach created by the challenged sections is “compounded by deliberately harsh and excessive arrest and penalty provisions, which are themselves unconstitutional,” said Animal Justice’s application. One section of the Act allows facility owners to arrest people they believe in violation of the Act, “even in the absence of objectively reasonable and probable grounds to justify such action,” said the application.

“The Security from Trespass and Protecting Food Safety Act, 2020 and its Regulations were crafted in a manner to protect the safety of our food supply and the security of farmers from risky trespass activities while also protecting the right for people to participate in lawful protests,” Christa Roettele, Ontario Ministry of Agriculture, Food and Rural Affairs media relations strategist, told Law Times.

“The ability of media to investigate and report on animal mistreatment, as well as the protection of whistleblowers to report on animal abuse is protected in the Act. That includes specific exemptions for journalists and whistleblowers,” says Roettele.

In February of 2020, before the enactment of the Security from Trespass and Protecting Food Safety Act, 43 constitutional and criminal law experts wrote to Attorney General Doug Downey and Minister of Agriculture, Food and Rural Affairs Ernie Hardeman, warning the legislation would infringe on Charter rights to freedom of expression and peaceful assembly.

Making it a crime to enter an agricultural facility on false pretences is “an effort to muzzle employee whisleblowers,” said the letter. The legal experts also referred to similar laws in the U.S., which had been found to violate the First Amendment right to free speech. Utah’s U.S. District Court found that restrictions on gaining entry to a facility under false pretences was “overly broad” and therefore unconstitutional. In 2019, the U.S. District Court in Iowa granted a preliminary injunction on enforcement of a similar ag-gag law, because of the public interest in educating the public on animal welfare and food safety issues.

“Whistleblowers have long played a vital role in exposing animal cruelty, unsafe working conditions, and environmental problems on industrial farming operations. Such exposés are in the public interest, promoting an open dialogue about animal use practices and food safety. Ag-gag laws can also adversely affect industry by eroding public confidence in the food system,” said the letter.

While the Criminal Code and provincial laws prohibit animal cruelty, neglect and abuse, “the vast majority” of the around 240 million animals slaughtered for food in Ontario each year spend their whole lives on private property, hidden from the public, said Animal Justice’s application. But Ontario lacks “regular or proactive” government inspections and disclosure requirements, and the Province’s animal welfare law enforcement authorities only inspect when they receive a complaint about a specific facility, said the application.

“The work of animal protection advocates, journalists, researchers, and whistleblowers is therefore essential if unlawful and pernicious practices are to be exposed, and the public is  to be informed on matters of pressing public interest,”

“Who's going to tell us how these animals are treated, if there's no way to get this information?” says Schroff.

Schroff offers the alternative, that agricultural producers volunteer information to show animals are not mistreated in their facilities. They could install cameras and the Canadian Food Inspection Agency could do more regular food inspections, she says.