An Ontario judge has declared that parts of a law that threatened to steeply fine animal-rights activists and declare them trespassers if they lied about their backgrounds to get hired onto livestock operations are unconstitutional.
The ruling asserts that activists’ ability to infiltrate animal-processing facilities is integral to their Charter-protected free-speech rights, and voids regulations of the statute that would punish them for misleading agricultural companies to exercise those rights.
The decision could have an effect on similar laws across Canada passed in recent years to protect agricultural operations from infiltrators aiming to expose the inhumane treatment of animals.
“While one may agree or disagree with the applicants, their goal in pursuing undercover exposés is consistent with the principles that underlie freedom of expression,” Ontario Superior Court Justice Markus Koehnen writes in his ruling. “They seek to tell the public about the conditions in which animals are raised and slaughtered.”
The case results from a constitutional challenge by an Ontario-based group known as Animal Justice against the Security from Trespass and Protecting Food Safety Act, which was passed by Ontario Premier Doug Ford’s government in 2020. The law sought to take several steps to shield livestock industries from activists and protesters. In addition to the struck-down provisions targeting activists who get hired on false pretenses, the law allows for fines against protesters who would interfere or interact with farm animals being transported by trucks.
In his ruling, Justice Koehnen wrote that courts must prefer the free speech rights of animal activists over state powers that are being invoked to protect the meat industry.
“The simple fact that an undercover activist obtains a job by understating their qualifications does not create economic harm,” his ruling says. “If the intention, however, is to protect the economy from harm that may be done by people who record or describe what they have seen in an animal protection zone, then the measure is disproportionate.”
The ruling dated Tuesday strikes down several regulations associated with the law. “I declare them to have no force or effect,” Justice Koehnen wrote.
The decision gives Ontario a grace period to reckon with the ruling. In a pending follow-up hearing, potential legal remedies are to be discussed.
Several provinces, including Prince Edward Island, Alberta and Manitoba, have passed similar trespass laws.
Such legislation started to be introduced about five years ago as Canada’s livestock industry argued that activist infiltrators were becoming a growing problem who could, while posing as workers, spread livestock diseases, harm the animals or give rise to dangerous work environments. The new ruling says that Ontario’s law “was passed in 2020 in response to demands from the agricultural industry and approximately 120 municipal resolutions calling on government to do more to control trespass onto agricultural properties.”
Critics of such statutes have countered that the industry damage is minimal, and have dubbed them to be “ag-gag” laws because they have the effect of fettering free speech.
This ruling is the first time a Canadian court has considered one of these laws.
“We are thrilled that this case takes a very firm and strong view of what free expression entails and hope that it sets a helpful precedent,” said Camille Labchuk, executive director of Animal Justice.
Spokespeople for Ontario’s agriculture and attorney-general ministries did not immediately respond to questions about the ruling. Industry officials said they will speak at a later time.
In 2021, the Ontario government told The Globe and Mail the provisions of the law were constitutionally sound. “Careful work was put into crafting the act and the minister’s regulation to balance the rights of farmers and their farm operations with the rights for people to participate in lawful protests on public property,” said Christa Roettele, a spokeswoman for Ontario’s Agriculture Ministry.
The Ontario law had specifically sought to penalize activists who lie about their university educations or who hide their animal-rights affiliations in the job applications they submit to livestock operations. According to the new ruling, such people faced trespass fines of up to $30,000 if they subsequently revealed themselves as undercover operators.
Justice Koehnen pointed out that people routinely lie about their credentials in other contexts without facing financial penalties. “The state does not penalize or brand as trespassers people who exaggerated their passion for a particular industry in a job interview or who get into a bar by claiming to be 19 when they are not.”
The ruling reviews evidence from Ontario livestock officials who told the court that such a law was needed to insulate food producers from a variety of harms – including the risk of infiltrators “exposing farm animals to disease and stress as well as the risk of introducing contaminants into the food supply.”
Yet Justice Koehnen says such arguments were not persuasive.
“The question should be whether there is any greater risk of undercover employees failing to follow biosecurity protocols than there is of ordinary employees failing to follow them,” he writes. His decision says his court was presented with insufficient evidence for him to make any such finding of heightened risks.
Colin Freeze