Fred Lum/The Globe and Mail via CP An OSPCA agent plays with AK, an eight-month old German Shepherd/Rottweiler mix, in his pen at the Windsor/ Essex County Humane Society on May 17, 2007.

A judge has found the enforcement powers held by Ontario's private animal welfare agency to be unconstitutional, saying the province must re-write laws governing the organization to remedy the situation.

Justice Timothy Minnema said the provincial government was wrong to grant police powers to the Ontario Society for the Prevention of Cruelty to Animals without also imposing accountability and transparency standards on the agency.

Overall 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.Justice Timothy Minnema

The OSPCA, a private charity that receives millions of taxpayer dollars as well as private donations, has had police powers since the OSPCA Act became law in 1919. It is responsible for enforcing both provincial and Criminal Code animal cruelty laws.

"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, a judge with Ontario's Superior Court of Justice, wrote in a decision released Wednesday.

Minnema pointed to the lack of oversight and transparency as key in his decision. The OSPCA is not accountable like police forces across the province that must comply with the Police Services Act, the Ombudsman Act and freedom-of-information laws, the judge noted.

"Overall 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," Minnema wrote.

'An issue for the government of Ontario'

The OSPCA said it respects the court's decision and remains committed to protecting animals across the province.

"This is an issue for the government of Ontario to address," said spokeswoman Alison Cross. "The Ontario SPCA will continue to provide animal protection services while the government determines how they wish to proceed."

A spokesman for the Ministry of the Attorney General said the government is reviewing the decision.

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