An Ontario judge has ruled that the authority of the province’s animal-welfare agency to enforce laws that protect animals is unconstitutional, because it allows a private organization — the Ontario Society for the Protection of Animals (OSPCA) — to enforce public laws with little oversight or transparency.

“The OSPCA appears to be an organization that operates in a way that is shielded from public view, while at the same time fulfilling clearly public functions,” Superior Court Justice Timothy Minnema said in a strongly-worded decision released Wednesday.

The decision was in Bogaerts vs. Attorney General of Ontario, which was a constitutional challenge to provincial animal-welfare laws and their enforcement. It was launched five years ago by Jeffrey Bogaerts, a paralegal with an interest in animal-welfare law, and argued in Perth in May.

As the court noted, the challenge wasn’t an attack on the Ontario Society for the Protection of Animals (SPCA) itself. Bogaerts saw the agency as a victim of the legislation, and acknowledged it may be doing the best it can under the circumstances.

The court had strong words for the current structure, however.

“Although charged with law-enforcement responsibilities, the OSPCA is opaque, insular, unaccountable, and potentially subject to external influence, and, as such, Ontarians cannot be confident that the laws it enforces will be fairly and impartially administered,” Minnema said.

While investigators and agents with the OSPCA have police powers, they are not subject to the Police Services Act, which has created a system for oversight and accountability for police and law-enforcement bodies.

“Rather, the OSPCA has a policy manual that it has created related to entering homes and seizures of property, and that manual is not a public document,” Minnema said.

“Complaints and discipline are dealt with internally.”

Unlike virtually every public body in Ontario, the OSPCA isn’t subject to the Freedom of Information and Protection of Privacy Act, which would require it provide access to information. Nor is it subject to the province’s Ombudsman Act.

The decision recognized a new principle of fundamental justice, declaring that under Section 7 the Charter of Rights and Freedoms, it is unconstitutional for the province to assign police and other investigative powers to a law-enforcement agency not subject to reasonable standards of transparency and accountability.

“It’s a huge deal that the court created a new one,” said Camille Labchuk, executive director of Animal Justice, a national animal-law organization.

“They almost always reject them. We think it’s very good for animals (that agencies have to be transparent).”

Animal Justice was an intervener in the case, arguing that enforcement agencies must be accountable and transparent to ensure animals benefit from legal protections. Among the concerns raised in court were secret memorandums of understanding with industry groups, and the fact that the OSPCA receives donations from the public — the very people it’s tasked with investigating when problems and complaints arise.

Animal-protection laws are the only ones still enforced by private agencies, and Labchuk said that, provincially and nationally, there is more public scrutiny of a structure that leaves a private charity responsible for the protection of animals.

Late last year, the OSPCA announced plans to pull back from investigating cruelty cases involving livestock and horses.

Labchuk said it seems they’re doing so because “they don’t receive enough funding to do an adequate job, which is completely fair.”

Ontario will now have an opportunity to revisit the enforcement of provincial animal laws, which she said is long overdue, given the many years the responsibility for animal protection has been “shunted off” to a private charity.

“The conversation is being had, and it’s up to the government to start bringing this regime in line with modern, 21st-century values. Animal Justice will support a system that puts animals first.”

The court also considered whether the OSPCA’s search-and-seizure powers were too broad — and whether provincial animal-protection offences are truly criminal in nature and fall outside provincial jurisdiction — but found that powers and jurisdiction were both appropriate.

Labchuk said it’s right that the agency has robust search and seizure powers, given that animals in harm’s way are often kept behind closed doors and can’t report abuse themselves.

For now, things stay the same with the OSPCA. The court’s declaration of invalidity has been suspended for 12 months to give the province a chance to create a new system of animal protection. Minnema noted that if it took effect immediately, it could deprive animals of the protections afforded by the OSPCA Act.

“Compromising animal welfare, even for a transitional period, would be an untenable result, in my view.”

In a statement, the attorney general’s office said the decision is being reviewed.

“As this matter is in the appeal period, it would be inappropriate to comment further,” said spokesman Philip Klassen.

Said Labchuk: “If it goes up to a higher court, we’ll certainly intervene again.”

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