Ontario Court Strikes Part of OSPCA’s Special Act for Charter Violation
Jan 2019 Charity & NFP Law Update
In another case concerning special act corporations, the Superior Court of Ontario released its decision in Bogaerts v Attorney General of Ontario on January 2, 2019. In this case, Mr. Bogaerts challenged the constitutionality of certain provisions in the Ontario Society for the Prevention of Cruelty to Animals Act (“OSPCA Act”). Specifically, he alleged that the OSPCA Act violates the section 7 right to life, liberty and security and the section 8 right against unreasonable search and seizure under Canadian Charter of Rights and Freedoms (“Charter”), as well as the division of powers in the Constitution Act, 1867, as it dealt with criminal matters.
The OSPCA Act is special legislation incorporating and governing the registered charity, Ontario Society for the Prevention of Cruelty to Animals (“OSPCA”). It administers and enforces animal welfare and protection throughout Ontario, and is given police powers to do so. While it is neither a Crown agent nor part of the provincial government, it is an independent charitable organization that has been given certain statutory powers relating to animal welfare in Ontario.
The court dismissed two of Mr. Bogaert’s claims. It found that the OSPCA Act does not violate the division of powers in the Constitution Act, 1867 because the pith and substance of the OSPCA Act is animal protection and the prevention of cruelty to animals rather than criminal law. It also found that the OSPCA Act does not violate the section 8 Charter right, holding that there would be no reasonable expectation of privacy because the OSPCA’s search and seizure powers are necessary to meet the objectives of the OSPCA Act.
However, the court held that the delegation in the OSPCA Act of police and other investigative powers to a private organization violates section 7 of the Charter, even though these provisions have been in the OSPCA Act prior to the creation of the Charter. The court recognized a new principle of fundamental justice that “law enforcement bodies must be subject to reasonable standards of transparency, integrity, and accountability.” In this regard, it found that the OSPCA is a private organization and private organizations “by their nature are rarely transparent, and have limited public accountability” and that “[a]lthough charged with law enforcement responsibilities, the OSPCA is opaque, insular, unaccountable and potentially subject to external influence, and, as such, Ontarians cannot be confident that the laws it enforces will be fairly and impartially administered.” The court therefore found the provisions in the OSPCA Act granting warrantless search and/or seizure powers to the OSPCA to be unconstitutional. As it found that the offending provisions could not be modified or read down to comply with the Charter, the court declared those provisions to be of no force and effect. However, this declaration of invalidity has been suspended for one year to allow the legislature sufficient time to consider the range of possibilities or to start from scratch in making policy choices, because immediate implementation of the declaration would deprive animals of their current protections under the OSPCA Act, and could adversely impact staff at the OSPCA and its affiliates.
This case demonstrates the importance of ensuring special act legislation does not conflict with legislation, such as the Charter or other portions of the Constitution of Canada. Where they do, such corporation can become, as stated by Mr. Bogaerts, “a victim of the legislation.” Special act corporations should therefore be aware that where their legislated powers run counter to Charter rights or other Constitutional provisions, those powers may be declared invalid by the courts, even where those provisions had been in place prior to the Charter or Constitution’s creation.
