Who should have the power to enforce animal cruelty laws? In Ontario for the last 99 years, the Ontario Society for the Prevention of Cruelty to Animals has played this crucial role.

But now a Superior Court judge says the OSPCA has been acting unconstitutionally. In a ruling released last week, Justice Timothy Minnoma found that the law empowering the private charitable organization to exercise police powers in Ontario is fundamentally flawed.

In particular, the judge ruled that the province was wrong to grant policing powers to an agency that in his words was “opaque, insular, unaccountable and potentially subject to external influences.”

He gave the province a year to fix the law.

In theory, the constitutional dilemma could be easily rectified. The judge notes that other provinces have solved this problem by ensuring that animal protection officers are subject to the same kind of oversight as police.

In Alberta, for instance, animal cruelty inspectors are appointed by the provincial government. In Newfoundland and Labrador, regular police are used to enforce animal cruelty laws.

An arrangement could be worked out whereby the OSPCA kept its status as a private charity performing some police functions yet opened itself to public oversight.

The problem is that the OSPCA appears to want out of the business of investigating animal cruelty complaints altogether. It is just too expensive.

In October, Canadian Press reported that the OSPCA has decided it will no longer investigate allegation of cruelty to horses and farm livestock.

The news agency went on to say that the OSPCA eventually hopes to ditch all of its cruelty inspection obligations in order to concentrate on animal shelters and rescue, both of which draw in big donations from the public.

When an OSPCA officer saves a dog locked in a sweltering car on a hot July day, the public cheers. But when the society raids a farm in rural Ontario to deal with reports of livestock abuse, the reaction can be less positive.

Indeed, last week’s legal challenge was funded by the Ontario Landowners Association, a radical, rural, property-rights group that has long objected to what it calls the OPSCA’s intrusiveness.

Ironically, the animal-rights group Animal Justice — which wants better enforcement of cruelty laws — intervened in the case to make many of the same arguments as the Landowners.

Animal Justice Executive Director Camille Labchuk says the court decision opens up the possibility of having a public agency with more clout take over the OSPCA’s enforcement role.

A 2017 discussion paper by animal welfare groups Zoocheck and Animal Alliance of Canada suggests just how such a public agency might operate. Funded by a two per cent tax on non-medical pet supplies, it would cover all animals, including those currently exempted from cruelty laws (such as dogs used in research).

None of these critics is down on the OSPCA itself. A 2016 report by two academics found that its animal cruelty inspectors, who respond to roughly 18,000 complaints a year, are overworked and underfunded. More often than not, they are subject to abuse when trying to do their jobs.

Report co-author Kendra Coulter, a Brock University labour studies professor, says that some jurisdictions have successfully melded animal cruelty investigators into regular police forces. She cites the New York City animal crimes unit, which she says combines the expertise of trained animal investigators with the authority of real police.

Theoretically, Ontario could follow this model. But will it ask its already overburdened police forces to do more? And will police really respond to complaints of, say, a dog being left without water all day in its owner’s backyard.

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As it is, the Ontario government gives only $5.75 million annually to the OSPCA. The society says that’s not enough to fund the society’s cruelty investigation activities and that these must be cross-subsidized by private donors.

But will Premier Doug Ford’s Progressive Conservative government spend more just to enforce animal welfare laws that many of its supporters think are already too intrusive?

Last week’s court decision has set the stage for changing the way cruelty laws are enforced in Ontario. Whether that change will be for the better remains an open question.