One of the last press conferences I attended at Queen’s Park before COVID-19 made that impossible for a while came in December 2019, when then-minister of agriculture Ernie Hardeman introduced Bill 156, the Security From Trespass and Protecting Food Safety Act. Bill 156 was intended to make it illegal for animal-rights activists to surreptitiously film the operations of farms or otherwise gain access to farms under false pretenses, as well as to otherwise restrict some of the common strategies used by animal-rights activists. It’s part of a category colloquially referred to as “ag gag” laws.
I remember two things struck me when the government introduced Bill 156. First, this is a below-the-radar example of the difference between the Ford and Wynne governments: Kathleen Wynne was sincerely and genuinely concerned with how to rebuild the Liberal brand in rural Ontario and served for a time as her own minister of agriculture and rural affairs. But her government never implemented a law like this, despite lobbying from various farm groups. The PCs, with the core of their support coming from rural Ontario, made it very nearly one of their first orders of business after being elected in 2018 — and were lauded by groups like the Ontario Federation of Agriculture for doing so.
The second thing that struck me back in 2019 was how dubiously constitutional Bill 156 was. And earlier this week, an Ontario court agreed, striking down some — though not all — of the law’s major provisions.
“We’re an organization that conducts undercover investigations into factory farms and slaughterhouses. When this bill was introduced we fought it, and once it was passed we knew we had to challenge it,” says Camille Labchuk, director of Animal Justice, who fought the bill along with other animal-rights groups and the Centre for Free Expression.
Bill 156 made it a provincial offence to gain access to a farm under false pretenses and then defined in regulation what exactly counted as “false pretenses.” The regulation also included exemptions for journalists and whistleblowers, but Animal Justice and others challenged those exemptions for being too narrow. Justice Markus Koehnen of the Ontario Superior Court of Justice agreed, saying that those prohibitions in the regulation infringed the Charter rights of animal-rights activists and couldn’t be saved by Section 1 of the Charter, which allows infringements when they “can be demonstrably justified in a free and democratic society.”
In particular, sections of the regulation that effectively forbade activists from lying to farm operators about their education or affiliation with animal-rights groups were struck down as having only a minimal connection with valid legal concerns, such as the physical safety of farmers and their property.
“Misrepresentations are protected speech in Canada,” says Labchuk. “That’s very clear based on decades of Charter jurisprudence. Very odious misrepresentations and lies, including about the Holocaust, are protected. So something as minimal as omitting that you’re a member of an animal-rights organization certainly deserves protection.”
The judge did allow for some cases where more material misrepresentations — like lying about professional qualifications — could still be penalized.
Koehnen’s decision includes a staunch defence of the freedom of expression, even and especially for people who hold minority viewpoints.
“The fact that particular views may be outside of the mainstream does not mean that their expression should be constrained any more than views that are within the mainstream. It is, in fact, usually the opposite,” Koehnen writes. “It is the very fact that certain views lie outside of the general social consensus that makes freedom of expression important to protect.”
Koehnen — who also issued the initial decision striking down the Ford government’s Bill 124, which limited public-sector pay increases — didn’t agree with all the arguments against Bill 156. The law also includes sections designed to forbid activists from interfering with the movement of livestock or trucks.
Agenda segment, February 26, 2020: The "ag gag"?
Sections 5 and 6 of the law were intended in part to address cases like the 2015 incident in which Anita Kranjc was charged after she gave water to pigs outside a Burlington slaughterhouse. A judge dismissed those charges, arguing that it was unclear Kranjc had even broken any laws. However, Section 6 of the STPFA explicitly makes it a provincial offence to interfere with any animal or any truck that’s moving animals without the operators’ consent, and Koehnen accepted that there is a valid purpose both for ensuring the biosecurity of livestock and for protecting the safety of protesters themselves if they try to impede large tractor trailers.
That’s not a theoretical concern: activist Regan Russell was killed in June 2020 when a truck driver drove over her outside a slaughterhouse; the driver eventually pleaded guilty to a provincial offence of careless driving and paid a $2,000 fine. Russell’s death came days before Bill 156 reached the final stages of passage at the legislature.
Labchuk says that, notwithstanding those parts of Koehnen’s decision, she’s pleased overall with Koehnen’s ruling and how it preserves Animal Justice’s right to continue conducting undercover exposés.
“Canadians who eat meat say they care about animal cruelty and they don’t want to see animals suffer on the way to the plate,” Labchuk says. “If I could give the meat, egg, and dairy industry some advice, it would be not to go around promoting ag-gag laws like this — because when the public learns about them, they’re frankly outraged.”
Donate