I. Ontario’s Ag-Gag Legislation
On June 18, 2020, Ontario’s Security from Trespass and Protecting Food Safety Act (“the Act”) received Royal Assent. Some provisions of the Act came into force on September 2, with the remaining provisions of the Act and its Regulation coming into force on December 5, 2020. The Act creates provisions specific to places where farm animals are kept and animal transport trucks. The stated purposes of the Act are as follows: 1) to eliminate or reduce biosecurity risks when individuals trespass onto properties or interfere with farm animals; 2) to protect farm animals from biosecurity risks; 3) to protect farmers, their families, persons working on farms, and animal transport drivers; and 4) to prevent adverse effects resulting from biosecurity on Ontario’s overall economy.
However, the Act adds excessive and repressive measures to the already existing, robust protections under the Trespass to Property Act (”the Trespass Act”).
Proponents of the Act insist that the legislation is intended to protect farmers from trespassers but the Trespass Act already prohibits trespassing on enclosed lands where animals are kept (including agricultural premises). It also already authorizes property owners or occupiers to carry out citizens’ arrests “on reasonable and probable grounds,” and it already imposes fines and penalties on those who trespass on private property. Not only does Ontario’s legislation add excessive measures to current trespass laws, but it also goes even further by disallowing peaceful assembly on public property if it “interferes” with animals in transport vehicles, including for purposes of documenting the conditions in which animals are transported.
Laws that restrict expression about agricultural industries are known as “ag-gag” laws because they silence and punish those who seek to express concerns and share information about standard industry practices in animal agricultural industries. These laws aim to shut down whistleblowers and undercover investigations that reveal abuse and cruelty in dairy, egg, meat, and other animal industries. As scholars like Justin Marceau aptly describe them, ag-gag laws are “anti-animal rights and anti-food justice laws.”
Around the time that Ontario’s ag-gag bill was being debated, the Provincial Animal Welfare Services Act (“the PAWS Act”) received Royal Assent on December 5, 2019. Advocates of the now-adopted ag-gag legislation often point to the PAWS Act as the appropriate solution for protecting animal welfare in Ontario. Unfortunately, the PAWS Act, though an advancement over some previous legislation, does not address the concerns raised against ag-gag laws. Most concerningly, the PAWS Act exempts “reasonable and generally accepted practices of agricultural animal care” from the legislation’s prohibitions. These ‘accepted standard practices’ are a major part of what animal activists seek to expose when undertaking undercover investigations. Debeaking chickens without anesthesia and slicing off the tails of pigs are both industry standards, for example. That a practice is accepted surely does not mean that it does not cause animals undue harm – if it did, why would an exception be necessary? Of course, nothing in the PAWS Act allows or requires whistleblowers to go public with any abuse or cruelty that they witness. The PAWS Act simply does not resolve the concerns that advocates have about the ag-gag law.
II. Animal Justice’s Lawsuit
On March 8, 2021, Animal Justice and two named individuals (“the Applicants”) filed a notice of application to the Superior Court of Justice, challenging the constitutional validity of several provisions of the Act and Regulation. They seek remedies under section 52 of the Constitution, namely, declarations that the impugned provisions violate the Charter and are therefore of no force and effect.
The Applicants raise several issues with the legislation. In sum, they claim that the impugned provisions unjustifiably restrict political expression and peaceful protect activities, and that the unconstitutional impact on these fundamental freedoms is compounded by excessive and unconstitutional arrest and penalty provisions.
Crucially, they say, the purpose and effect of the impugned provisions restrict and prohibit animal activists, journalists, researchers, and whistleblowers from obtaining and distributing information to the public about the conditions in which farm animals are kept, transported, and slaughtered. The Act primarily does this by making it an offence to gain access to a farm or agricultural facility under “false pretences” and by making it an offence to “interfere or interact” with farm animals within “animal protection zones” or as they are transported to slaughterhouses. The Act and Regulation also impose harsh and excessive penalty provisions: a person found guilty of trespassing in or on an animal protection zone is liable for a fine of up to $15,000 on the first offence and $25,000 for subsequent offences.
The Act also grants arrest powers to farm owners and operators to carry out citizens’ arrests even without “objectively reasonable grounds,” as long as their actions are not “willful or reckless.” There is only a limited exception for journalists and whistleblowers to the prohibition against false statements made to gain access to animal protection zones sites as set out in the Regulation. For instance, for employee whistleblowers, this exception requires that the employee actually find abuse and that they report it to the police or other authority “as soon as possible,” thus preventing them from documenting and publicly disseminating information of observed patterns of abuse. If they are found to have used false pretenses before uncovering abuse, they would not be eligible for whistleblower exemptions from penalties under the Act.
In general, Ontario’s animal protection regime is lacking. For instance, there are no regular or proactive government inspections in Ontario to assess the welfare of farm animals. It is only when a complaint is received by provincial animal welfare authorities that particular farm inspections are conducted. Thus, one of the key sources for alerting law enforcement about the treatment of farm animals is information obtained and shared through undercover investigations by journalists, activists, or employee whistleblowers. Further, such exposés are often the only ways for the public to know how farm animals are treated.
Legislators were made aware of constitutional issues with the proposed laws well in advance of its passage. On February 6, 2020, a group of 43 law professors and lawyers in Canada (including Osgoode Professors Bruce Ryder and Gary Grill) issued a clear statement about the unconstitutionality of Bill 156. In a letter to the Attorney General of Ontario and the Minister of Agriculture, Food and Rural Affairs, they identified that the proposed Bill was an effort to “muzzle employee whistleblowers” and would infringe individuals’ Charter-protected rights to freedom of expression (section 2b) and peaceful assembly (section 2c). They preempted Animal Justice’s lawsuit, warning that the Bill if passed, would make it an offence to gain access to a farm under “false pretences”, would grant owners of farm property significant arrest powers, and would restrict individuals’ ability to peaceful assembly on public property near animal transport trucks.
The Ontario legislature did not think it necessary to redraft the legislation in light of these objections. Rather, the legislation passed despite serious doubts about its adherence to the Charter.
Ontario’s ag-gag law follows after Alberta’s (which passed in November 2019, within a matter of 10 days after being introduced as a bill), and Manitoba has recently announced its own ag-gag Bill.
In the United States, ag-gag laws in several states – Iowa, Idaho, Utah, Kansas, North Carolina and Wyoming – have been struck down as unconstitutional due to their restrictions on free speech. This might be a sign of what is to transpire in Canada.
III. The Danger of Ag-Gag Laws
Why should we care about the emergence of ag-gag laws in Canada?
Ag-gag laws have arisen within and in response to a social context in which individuals are growing increasingly engaged with ethical issues concerning food production and the treatment of animals in farms. Repressive laws aimed at restricting individuals’ freedoms of expression and peaceful assembly are not new in the world of animal activism.
In 2015, animal rights activist Anita Krajnc was charged with criminal mischief to property (animals are property under the law) for feeding water to pigs in a transport truck on their way to slaughter. Osgoode Professor Gary Grill was co-counsel in Dr. Krajnc’s case, in which she was found not guilty in 2017. The judge ruled that giving water to pigs did not constitute a criminal act and, further, did not cause interference “with the operation, enjoyment or use of” the animals, who were subsequently (with no concern by the slaughterhouse about contamination or biosecurity) transferred to their final destination, where they were killed and processed. The support for Dr. Krajnc’s case gave rise to the Animal Save Movement, which holds vigils at slaughterhouses to bear witness to animals’ suffering and raise awareness about their oppression, peaceful activity that is now threatened (indeed, targeted as an offence) by ag-gag.
In addition, in an era of covid-19, employee whistleblowers, journalists, and animal activists rely on legal protections to raise concerns about unsanitary and unsafe working conditions in farms, slaughterhouses, and other places where animals are kept. Health and safety practices in the animal agriculture industry are a matter of public interest not only because of the industry’s inherent potential to disseminate novel diseases but also because the conditions in the animal agricultural industry are ideal for the spread of disease between humans. As Professor John Middleton and colleagues write in the British Medical Journal, “Slaughterhouses and meat packing plants have been a major risk for covid-19 infection throughout the pandemic.” In fact, from the start of the pandemic to the present, animal processing facilities in Canada have been some of the largest sources of covid-19 outbreaks. Take, for example, a Cargill slaughterhouse in High-River, Alberta (over 900 positive cases and one worker death reported in May 2020) and an Olymel slaughterhouse and meat-packing facility in Red Deer, Alberta (over 500 positive cases and three worker deaths reported in March 2021). Ontario’s ag-gag legislation renders a major vector of disease emergence and transmission essentially immune from whistleblowing.
What happens in farms and slaughterhouses is carefully hidden away from the public, and accessing information about what goes on within these places is very difficult. In Canada, undercover investigations (like Animal Justice Canada’s exposé of Paragon Farms) have made – what would otherwise be invisible to the general public – violence, cruelty and abuse that animals endure as part of ‘standard industry practices.
Given the massive power differential between humans and non-human animals, undercover investigators and whistleblowers serve as animals’ advocates and give voice to their lived experiences, drawing attention to the need for social change to protect their interests. Thus, not only do journalists, activists, and whistleblowers serve an important epistemic role in capturing and sharing knowledge with the public, but they are also often the first line of advocacy that animals have.
As Jodi Lazare puts it, “ag-gag laws not only violate the Canadian right to freedom of expression, but they also strike at the very heart of the reason the Constitution protects free speech.” The right to speak and listen freely is an essential pillar of a democratic society, in which truth-seeking and public discussion is protected. By restricting freedom of expression (as well as peaceful assembly), ag-gag laws undermine our ability to participate in open and free public discourse meaningfully.
Ultimately, if we care about how animals are treated and our existing food systems, we should be very concerned about laws that infringe fundamental rights to expression and peaceful assembly. How animal products are processed is now, as a result of Ontario’s ag-gag laws, hidden from journalists and activists – and all of us as the general public.
Journalists’, activists’, and employee whistleblowers’ gathering and sharing of information are some of the only ways the public can gain access to information about how animals are treated. The ag-gag law is not a response to journalists who investigate how well animals are being kept; it is a response to journalists who have documented substantial animal abuse and who thus pose a threat to public confidence in these industries.
We cannot leave it up to the agricultural industry to self-regulate; they have a vested financial and economic interest in concealing information from consumers and the general public. It matters that independent investigators and employee whistleblowers be able to document what is happening in Ontario farms and slaughterhouses. They have a right to freedom of expression and peaceful assembly, and both of these fundamental freedoms are inextricably tied to our right to know where animal products come from and how animals are treated.
Ag-gag legislation is meant to prevent us from knowing and seeing the conditions that animals endure. The mere existence of these laws should give us pause about exactly what it is that the industries do not want us to see.