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Dalhousie Law Journal

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Archives for Constitutional Law

The (un)constitutionality of Ontario’s new ag-gag legislation

By Jodi Lazare
Assistant Professor of Law – Schulich School of Law
jodi.lazare@dal.ca

 

In June 2020, the government of Ontario adopted the Security from Trespass and Protecting Food Safety Act, 2020. The Act is aimed at a worthwhile objective—the protection of the safety of Ontario’s farmers and of the food system. Unfortunately, by limiting expression, the bill poses a serious risk to the constitutional rights and freedoms of Canadians.

In the days leading up its adoption, I testified before the Standing Committee on General Government, setting out my concerns with the bill. What follows is the text of my submissions, with some modifications for clarity:

As someone who has taught constitutional law at a Canadian law school since 2014, and Animals and the Law since 2017, I am concerned that Ontario may be on the verge of adopting a law that would not survive a constitutional challenge. In February, I signed a letter to this effect, along with more than 40 other legal experts. Here, I flesh out some of the concerns expressed there.

 I will focus on the two parts of a constitutional analysis, starting with whether the legislation limits Charter rights. It is pretty clear to me, and to others, that Bill 156 indeed violates the Charter.

 Section 4(6) of the bill makes it an offence to gain entry onto a farm, or other agricultural or animal use premises, like a slaughterhouse, under false pretences. From a constitutional perspective, the provision dictates what someone is and is not permitted to say. In other words, it targets a particular message—a misrepresentation—and says, “you cannot say this.” That is a clear violation of freedom of expression.

 But more significant, perhaps, is the effect of the prohibition, which is that it limits the ability of undercover journalists, for example, or employee whistleblowers, to share information with the public.

 To gain access to an industrial farming operation, an undercover journalist might misrepresent their identity—a requirement when many farms are not open to the public without an invitation. Entry under false pretences, in order to document the treatment of animals on farms, becomes the only way for journalists, and animal rights activists, to ensure that Canadian consumers understand the consequences of their purchasing choices and can make informed choices about they buy, what they eat, and what they support with their dollars.

 In the United States, where similar laws, known as ag-gag (agricultural gag) legislation, have been repeatedly ruled unconstitutional, these kinds of investigations have led to legislative reforms regarding animal farming and food safety.

 The same is true of dietary choices; research suggests that the majority of Americans who change their diets to include fewer animal products do so as a result of what they learn about commercial farming and the treatment of farmed animals.

 Regardless of one’s choices upon being confronted with heartbreaking images of farmed animals, the bottom line is that every person has a right to the information on which to base those choices. Indeed, the Supreme Court of Canada has been unequivocal about the fact that the Charter protects not only the right to speak, but also the right to listen, and to receive the kind of information that influences personal consumer and dietary choices.

 Bill 156, in section 5, prohibits interfering with a vehicle transporting animals to slaughter and interacting with an animal on a vehicle. A quick read of the provision suggests that it is in direct conflict with the Charter right to freedom of peaceful assembly. It is telling people—animal rights activists and members of the Save Movement, who regularly demonstrate outside of slaughterhouses and whose presence on public roadways might interfere with the movement of a vehicle—that they cannot hold those gatherings.

 But I would argue that the transport provision also limits freedom of expression. People who protest outside of slaughterhouses—who approach transport trucks with animals on them—are carrying out a particular expressive activity: the act of what they term “bearing witness” to the final moments of animals’ lives, attempting to bring them some kind of comfort, and documenting and sharing what they see with members of the public. Again, the law tells them they cannot express themselves in this particular way.

In both cases (false pretences and transport), the expression in question is political. It is also truth-seeking and information sharing. These are the purposes of freedom of expression in Canada. It is expression on an issue that’s deeply meaningful to activists and, as American courts have recognized, a proper subject for public debate.

 In Canada, courses on animal law are now offered in at least half the law schools across the country. I have given public lectures on the subject to full auditoriums. This is a subject that people care about—morally, legally, and politically.

The expression being limited here is what I would characterize as “high value speech,” a concept I am borrowing from the Supreme Court of Canada, which has said multiple times that political speech lies at the core of freedom of expression, itself one of our most fundamental freedoms. What that means, in practical terms, is that restrictions on that speech will be harder for the government to justify—the second part of the constitutional analysis.

 When a claimant makes out a limit to a constitutional freedom, the Charter dictates that the burden shifts to the government to bring evidence demonstrating that the limit is justified “in the interests of a free and democratic society.”

Justification is a complex, multiple-step test, which can easily lend to confusion. What I put to you, in simple terms, is that the provisions dealing with false pretences and interference with transport vehicles are not rationally connected to the legislative objective.

The bill and the accompanying materials are very clear that the objective here is to protect farmer safety, animal safety, and biosecurity. To prevent the risks, in other words, associated with people trespassing onto farms.

As I understand things, however, trespassers are not gaining access based on false pretences. They are not posing as employees. They are not undercover investigators, or journalists. They are protestors. They do not get permission, based on the truth or on a misrepresentation, before they enter farms. They simply enter, or trespass.

The false pretences provision, then, seems to be aimed at something else. Something more sinister, or covert—like those who might pose as employees in order to act as whistleblowers.

 The difficulty here is that there is nothing to suggest that these individuals might threaten biosecurity. They are not the cause of the mischief being targeted, in other words, which means that limiting their speech is not rationally connected to the legislative purpose. And that is enough for a constitutional challenge to succeed. It’s also the basic reasoning underlying at least three of the American cases dealing with similar ag-gag legislation restricting entry onto a farm based on a misrepresentation.

The false pretences provision is also not minimally impairing, another constitutional requirement. There are ways to achieve the legislative objective here, that have less of an impact on fundamental freedoms, such as simply raising the penalties for trespassing or expressly prohibiting the introduction of biosecurity threats, like the federal private member’s Bill C-205 would do. Both of these things impair rights less than the current form of the legislation. And that, again, is enough for the law to fail.

I would also argue along similar lines with respect to the transport provision. Justification is an evidence-based analysis. To my knowledge, and at least one Canadian judge has agreed, there is no evidence that protestors outside of slaughterhouses are introducing any kinds of contaminants to the food system or endangering the safety of animals headed to slaughter. So again, no rational connection between the prohibition and the legislative objective—enough for the law to fail.

There is a lot more to say about Bill 156. Others have made the case that it is bad for animals and bad for democracy—that the bill shields the entire animal agriculture industry from public scrutiny when what is really needed is more transparency for an industry that self-regulates its treatment of animals. But as far as the Charter goes, the analysis sketched out here should suffice to demonstrate that Ontario likely just adopted an unconstitutional law. What happens next will depend on those willing to use these arguments to challenge the law in court and on the judges that hear them.

Jodi Lazare, DCL, is an assistant professor at the Schulich School of Law at Dalhousie University, where she teaches Constitutional Law, Animal Law, and Family Law.

 

Quebec’s Misguided Challenge to Federal Indigenous Child Welfare Law

Christiane Guay, Associate professor of social work, Université du Québec en Outaouais

Naiomi Metallic,  Assistant professor of law, Chancellor’s Chair in Aboriginal Law and Policy, Schulich School of Law, Dalhousie University 

Hadley Friedland, Assistant professor of law, University of Alberta

 

 

Six months after Bill C-92 passed in Parliament and mere weeks before the new law comes into force on January 1, 2020, Québec initiated a reference before its Court of Appeal to challenge the constitutionality of An Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24.  We believe the reference is unlikely to succeed in quashing the Act but certain to cause delay.

It is a delay that Indigenous children and families can ill afford. In Quebec, slightly less than 3% of children are Indigenous, while they make up 15% of children placed in foster care. Provincial child welfare laws contribute to the over-representation of Indigenous children at all stages of the system. Indigenous children placed in non-Indigenous foster families are not only deprived of their families, they are denied the opportunity to grow in their communities and learn their language and culture. In the 2017 Brown v Canada case on the ‘Sixties Scoop,’ numerous experts found this causes “great harm.” Research also shows that Indigenous children have worse outcomes and are more likely to die in care than non-Indigenous children once they are in care.

In reality, child protection systems, based on non-Indigenous conceptions of the family and administered by non-Indigenous decision-makers, predictably produce harmful and discriminatory effects when they are applied in an Indigenous context. This is why the Truth and Reconciliation Commission (TRC) said that these regimes are simply continuing the assimilation processes started by the Indian residential schools.

The major innovation of Bill C-92 is that it finally, and logically, sees the solution to this intergenerational and interjurisdictional “humanitarian crisis” lying in recognizing Indigenous peoples’ power to legislate and administer child welfare services for Indigenous people. Numerous studies have shown that self-government with respect to social services produces more positive results than the status quo. It improves the socio-economic conditions of communities and promotes the development of community-driven approaches to ensure Indigenous’s children’s long term security, healthy development and to preserve their cultural identity.

Bill C-92 also responds to TRC Call to Action #4 to establish important minimum standards so all Indigenous children and families receive the same baseline protections no matter where they live or if they move between provinces. In the United States, similar legislation was passed by Congress in 1978, recognizing Indigenous peoples’ inherent sovereignty and setting national standards concerning Indigenous children in all states. While not perfect, over the past 40 years, this law has significantly reduced over-representation and encouraged effective local innovations for strengthening Indigenous families.

Rather than embarking on the path of change, Quebec is seeking to have Bill C-92 quashed on the bold assertion of exclusive provincial jurisdiction over Indigenous child welfare matters.  This is unprecedented. No province, including Quebec, has ever insisted they have exclusive responsibility for delivering essential services for Indigenous peoples. Quite the opposite. Rather, time and time again, the provinces and federal government have played hot-potato with Indigenous issues.  The National Inquiry into Missing and Murdered Indigenous Women and Girls stated that this “interjurisdictional neglect” violates s. 7 of the Charter.

It does not seem the province considered the full implications of what it is asking of the Quebec Court of Appeal.  A finding of exclusive jurisdiction for Quebec in relation to Indigenous child and family services does not only mean the nullification of Bill C-92.  Legislative responsibility entails fiscal obligations.  It would seem Quebec wants jurisdiction without strings attached, but that does not seem likely (or respectful to the fundamental rights of Indigenous peoples).  And not only would Quebec have to pay for the delivery of child welfare services in Indigenous communities, a confirmation of jurisdiction in this case would surely also entail exclusive provincial jurisdiction in similar areas like social assistance, housing, water treatment and emergency services.  A finding for Quebec would also result in all other provinces being found to be in a similar situation.  In addition, surely the numerous tripartite self-government agreements that have been negotiated will be open to challenge by the federal government on the same grounds.

Supreme Court of Canada precedent strongly suggests that Quebec’s gamble is foolhardy.  The Court favours broad overlapping jurisdiction in relation to most matters. In Canard and Natural Parents , the Court confirmed that the Parliament may legislate in respect of “Indians” in areas that overlap with provincial powers (in the areas of wills and estates and adoption, respectively). Indeed, as renowned constitutional scholar Peter Hogg has noted: “[i]f s. 91(24) merely authorized Parliament to make laws for Indians which it could make for non-Indians, then the provision would be unnecessary.”  In other words, the federal power in relating to “Indians” must include the power to legislate over matters for Indigenous people that would otherwise be provincial for other citizens, or else the federal power would be meaningless.

In keeping with these precedents, Bill C-92 is a concurrent jurisdiction model. Family law has always been an area of concurrent jurisdiction so Quebec courts already routinely apply both federal and provincial statutes to reach the best interests of the child in particular circumstances. The sky is not falling.

Instead of initiating costly and regressive court challenges, Quebec could take a leadership role in initiating interjurisdictional cooperation and coordination. Respectful nation to nation conversations and minimal standards of care to increase Indigenous children’s wellbeing shouldn’t be seen as a threat to anything but the appalling statistics.