by John M. Simpson.
On January 2 of this year, a trial court in the Canadian province of Ontario declared unconstitutional certain provisions of the Ontario Society for the Prevention of Cruelty to Animals Act (“OSPCA Act”). Bogaerts v. Attorney General of Ontario, 2019 ONSC 41, No. 749/13 (Jan. 2, 2019). The OSPCA Act is the organic legislation that governs the operations of the Ontario Society for the Prevention of Cruelty to Animals (“OSPCA”), an animal welfare organization established in 1873.
The OSPCA is a private corporation, but the law gives OSCPA inspectors and agents the powers of police officers for purposes of enforcing laws in Ontario pertaining to animal welfare or animal cruelty. The law was challenged on multiple grounds, including the ground that it contravenes Section 7 of the Canadian Charter of Rights and Freedoms pursuant to which “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
While the court rejected several of the applicant’s arguments, the court agreed with the applicant that the OSPCA Act contravened a principle of fundamental justice that law enforcement bodies must be subject to reasonable standards of transparency and accountability. As the court explained:
The OSPCA is a private organization. Private organizations by their nature are rarely transparent, and have limited public accountability. Prior to 2012, Newfoundland and Labrador had similar legislation to Ontario which delegated police and investigative powers, including search and seizure powers, to its own Society for the Prevention of Cruelty to Animals. Before that legislation was rescinded, two of that province’s Provincial Court judges indicated in strong terms that a private organization having such powers was simply unacceptable: R. v. Clarke, [2001] N.J. No. 191 at paragraph 6, and Beazley (Re), [2007] N.J. No. 337, at paragraphs 3–6 and 22. Where reasonable transparency and accountability is lacking, I share that view. ... [A]lthough 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.
Slip op., ¶¶ 90-91.
The court suspended its declaration of invalidity for one year because “it would be beneficial to allow the legislature sufficient time to consider the range of possibilities or to start from scratch in making policy choices.” Id., ¶ 98.
The OSCPA Act is similar to laws in the U.S. State of New York governing various humane societies, including the American Society for the Prevention of Cruelty to Animals (ASPCA), which is headquartered in New York City and was founded in 1866. Like the OSPCA, the ASPCA is a private organization vested with law enforcement powers under New York law with respect to issues of animal cruelty and welfare within the City of New York. ASPCA Humane Law Enforcement Officers had the status of peace officers under New York law, with the authority to execute on warrants and make arrests. See, e.g., N.Y. Agriculture & Markets Law § 371. ASPCA “animal cops” were uniformed, wore badges and carried firearms and were featured on the television reality show “Animal Precinct” on the Animal Planet channel. The ASPCA closed its Humane Law Enforcement Division in late 2013, and its functions were assumed by the New York City Police Department.
In 2012, in a case of “man bites dog,” the ASPCA paid $9.3 million to settle racketeering and other claims against it arising out of an Endangered Species Act (ESA) case that it had brought against the owner and operator of the Ringling Bros. and Barnum & Bailey Circus® and which the presiding federal judge ultimately found to be “frivolous,” “vexatious,” and “groundless and unreasonable since its inception.” One of the aspects of that case was the fact that, while ASPCA had claimed in its federal lawsuit that Ringling Bros. was mistreating its Asian elephants and therefore “taking” them in violation of the ESA, none of ASPCA’s Humane Law Enforcement Officers (who had the authority to do so were there a basis for it) had cited the company for animal cruelty when the Circus played in New York City, thus undermining the credibility of ASPCA’s position in the ESA litigation.