OSPCA search and seizure powers being challenged in court today

OSPCA search and seizure powers being challenged in court today

An eastern Ontario man is set to appear in court today in Perth to argue the charter rights of people in the province are being violated by the Ontario Society for the Prevention of Cruelty to Animals (OSPCA), and that the private charity needs public oversight.

Jeffrey Bogaerts — a paralegal and member of the Ontario Landowners Association — is scheduled to appear to challenge the powers of OSPCA officers, who can enter a private residence without a warrant and seize an animal.

In his application, Bogaerts alleges the powers the private charity is granted under the provincial OSPCA Act violate the right to life, liberty and security of the person, and that the OSPCA should be subject to provincial scrutiny.

The national animal rights group Animal Justice — an intervener in the court case — agrees with Bogaerts that the OSPCA needs oversight.

'The law should be overseen by the government'

Bogaerts declined an interview with CBC News and referred all questions to his lawyer, Kurtis Andrews.

"The enforcement of animal welfare laws should not be delegated to a private organization," Andrews said. "The law should be overseen by the government, so we need to have accountability and transparency in the enforcement of animal welfare laws, like we have for every other law in the province."

OSPCA investigators have police-like powers but aren't subject to Ontario's Police Services Act, which governs conduct of officers. Since it's not a government agency, the OSPCA is also not subject to freedom-of-information laws and can't be investigated by Ontario's ombudsman.

"That's a problem and we feel that's wrong," Andrews said. "The organization is so insulated from all these safeguards, and that can mean anybody that's affected by them can feel very, very powerless."

Bogaerts not personally involved with OSPCA

Bogaerts has never personally been inspected or investigated by the OSPCA, but two years ago, a judge granted him standing to proceed with his case in the public interest despite the attorney general's attempt to have it dismissed. 

Andrews pointed to other people who have come up against OSPCA officers, including Jessica Johnson, a retired postal worker from Lyndhurst, a small community near Brockville.

In 2011, OSPCA agents entered the then 64-year-old part-time dog breeder's home through a bedroom window after she was accused of failing to comply with a court order to fix the teeth of one of her dogs.

Johnson, who was on a fixed income, said she couldn't afford to see a dentist herself, let alone one for her pet.

The case garnered widespread attention when high-profile Toronto lawyer Clayton Ruby took on her case, and she eventually lost. 

"The court now will decide if the current search and seizure powers are in accordance with the Charter," Andrews said. 

Animal Justice 'neutral' on Charter argument

Last month, a judge granted Animal Justice intervener status in Bogaerts's case to provide context on animal welfare laws.

Lawyer Camille Labchuk, executive director of Animal Justice, said the group is "neutral" on the Charter of Rights and Freedoms argument, and will ensure the perspective of animals is represented in court.

"In this day and age, when all other public laws are enforced by public bodies, [the fact] that we still leave animal offences to be enforced by a private charity is an anachronism," Labchuk said.

She added it's difficult to say whether OSPCA agents are doing a good job because "there is a vacuum of information."

But while Bogaerts and Andrews say the enforcement of animal cruelty laws is heavy-handed, Labchuk feels enforcement should be strengthened.

"Animals are members of our society and they are not simply objects but thinking and feeling individuals," she said. "It's very critically important for the OSPCA to have broad powers to do searches of people's property due to the unique concept of animals as victims of crime, because they are kept and live their lives typically behind closed doors."

Labchuk doesn't think her group and Bogaerts's case make an odd pairing, considering they agree that public laws should be enforced by the province and not a private charity.

"To me it's very interesting that we see two sides on the opposite end of the spectrum agreeing on this one issue," she said. "It says there is a consensus developing in Ontario that our system needs to change, and we need to bring in, perhaps, an animal police force that is government-run and is accountable and transparent."

The Ontario Superior Court hearing in Perth is scheduled for one day. It's expected the judge will make a final decision at a later date.

Andrews said he hopes the judge will rule that some sections of the OSPCA Act should have "no force or effect," and that if that happens, the government would be given time to rewrite the legislation.