Ontario ag-gag appeal concludes, court ruling pending

Glacier FarmMedia—An appeal challenging the struck-down sections of Ontario’s so-called “ag-gag” law concluded June 25, pending a decision.

The arguments presented to Justices Roberts, Miller and Zarnett in the Ontario Court of Appeals revolved around the legislative intent and constitutionality of false pretenses within Ontario’s Security from Trespass and Protecting Food Safety Act (STPFSA), 2020.

Why it matters: On April 2, 2024, Superior Court Judge Koehnen ruled that specific provisions within the Act violate the right of freedom of expression under the Charter of Rights, declaring them to have no force or effect.

In 2022, Camille Labchuk, executive director of Animal Justice, advocate Jessica Scott-Reid, and Toronto Cow Save organizer Louise Jorgensen challenged the constitutionality of new animal welfare legislation aimed at preventing activist disruptions and protecting farms from trespassing.

Arden Beddoes, a litigator for Scott-Reid and Jorgensen, argued that the Act infringes on freedom of expression under Section 2(b) of the Charter by focusing on the aspect of false pretenses rather than the value of the undercover exposé.

“There is no property right to the truth, the Absolute Truth, from everyone who seeks ingress,” argued Beddoes. “Under state laws enacted in this province, you only vitiate the consent because of this law. It’s not in the Trespass Act.”

Justice Zarnett pushed back, arguing the Trespass Act is procedural, dealing with remedies, not the relationship of trespass, which is established in common law, not the Trespass Act.

“But for the exposés, there would be no (STPFSA) law. That is the case,” volleyed Beddoes.

To which Justice Roberts replied, “But for the trespass, there would be no law,” questioning whether the deceit and the consent are inextricably intertwined to impair the validity of consent.

Justice Zarnett asked if the law’s “new” aspect was making something a trespass or establishing a provincial offence in those circumstances, which would otherwise only be actionable in a civil court.

“This is how you stop investigations, private investigations, investigative journalism, much of which, or a significant portion of which, could require investigatory deception,” Beddoes said, adding investigatory deceptions are protected under Section 2(b).

“They contribute to a marketplace of ideas from which people like Ms. Scott Reid draw, from which researchers may draw, on these important issues about how humans treat animals.”

Robin Basu, counsel to the Attorney General, stated that between 2007 and 2020, only 16 undercover exposés were published. He suggested that the COVID-19 restrictions from 2021 to 2022 limited undercover exposés more than STPFSA’s enforcement from 2020 to May 2024.

“(The Respondents) can’t say there were no undercover investigations when the law was enforced because we don’t know,” argued Basu. “There’s no evidence in the record that there were none. All we know is that the claimants say, we’re aware of no exposés being published.”

He added that evidence shows animal rights groups often defer reporting to authorities to prolong the collection of visceral footage, without producing an exposé.

Frederick Schumann, Animal Justice representative, stated that the journalist and whistleblower exceptions are too narrow.

“The person must be a journalist when they obtain the consent,” said Schumann.

A person working with an animal advocacy organization on an investigative exposé is not a journalist, nor are they considered an employee at the time they use false representation to gain employment, he explained.

“Neither the journalist exception nor the whistleblower exception is of assistance to them,” Schumann argued, even if they provide material to a media organization, law enforcement or regulatory body.

“It’s excluding, fundamentally, the animal advocacy organization from carrying out the exposé because their primary function is not to disseminate information to the public.”

In his rebuttal, Basu suggested, “There is no obstacle to Animal Justice setting up a subsidiary that is dedicated, or the primary function is the dissemination of information to the public.”

STPFSA targets trespass, not speech, said Basu, and Section 2(b) doesn’t mandate that free expression must secure genuine consent to enter a property, nor do civil consequences narrow constitutional protections.

“My friend said, ‘You can’t lie on your resume under this statute.’ You can lie on your resume,” explained Basu. “You just can’t do it, and when that lie successfully dupes somebody, then enter the farm.”