The Court of Appeal for Ontario is set to examine whether certain provisions under a farm-protection regulation go too far in curbing free expression on agricultural premises, after an application judge found parts of the regulation unconstitutional.
The contested rules, found in Regulation 701/20 under the Security from Trespass and Protecting Food Safety Act, 2020, deal with individuals — such as animal rights activists seeking employment — who gain entry to farms or animal processing facilities through “false statements.”
The Government of Ontario is appealing only the invalidation of section 9 and part of section 12(1)(d). The application judge ruled that section 9 unjustifiably violates section 2(b) of the Charter of Rights and Freedoms, while section 10 is justified. The judge further concluded that the compelled reporting requirement in section 12(1)(d) also falls short of Charter standards.
Under the Act, access is restricted to agricultural premises where animals are housed, raised or slaughtered. Section 9 of the Regulation works with section 5(6) of the Act to invalidate any owner’s consent obtained through deception. In other words, once a person lies to enter a prescribed farm or processing facility, any subsequent consent is deemed never to have existed. “The person would therefore be a trespasser,” the court noted in its summary, “and subject to penalties under the Act.”
Understating qualifications, denying affiliation with animal-rights groups
The application judge observed that section 9 commonly targets people who “understate their qualifications or deny affiliations with animal-rights groups.” Even if someone abides by all safety protocols while employed, the judge found they could still be treated as a trespasser once their affiliation or actual purpose is revealed.
According to the judgment, “the provision went further than necessary to advance the purposes of the Act.” Ontario counters that section 2(b) does not protect “private” false statements that prompt an owner to waive property rights intended to ensure public and animal safety. Ontario also maintains the Charter does not confer “a right to access private property to gather information, even for animal welfare exposés.”
Exemptions for whistleblowers
Section 12(1)(d) concerns exemptions for whistleblowers. When the application was heard, this subsection protected employees who discovered and disclosed farm-animal or food-safety violations “as soon as practicable.” The judge found that aspect of the provision “compelled speech,” because it could lead to prosecution for failing to immediately report each incident of wrongdoing.
The judge reasoned that this placed a burden on individuals who might otherwise wish to observe further problems and disclose them collectively. Ontario’s position is that the measure exists “to ensure that harm done to animals or humans, or a threat to food safety is promptly addressed.” It also argues that anonymous reporting is permitted and does not limit how long a whistleblower might observe ongoing issues.
Seven interveners
In the appeal, seven groups moved to intervene. The court used the established test in rule 13.02, which revolves around whether the proposed intervener will “make a useful contribution to the resolution of the appeal without causing injustice or prejudice” to the main parties. Where constitutional issues arise, the standard can be relaxed to allow various social, historical and policy perspectives, though interveners may not enlarge or transform the core issues.
Four applicants met the test. Animal Alliance, previously granted intervener status in the lower proceeding, was allowed to continue. It intends to argue that section 9 serves to “limit undercover exposés and delegitimize the expression and activities of animal advocates.” The judge in the first instance found Animal Alliance contributed useful, distinct submissions, and nothing in the higher court’s endorsement disagreed with that assessment.
The Centre for Free Expression, which also participated in the lower application, was again granted intervener standing. It focuses on how the Act and Regulation affect whistleblowers who are already employees, as opposed to undercover activists who gain employment through misrepresentation. The court concluded the centre’s “specialized expertise with respect to the issue of whistleblower rights” warrants a fresh opportunity to address the panel.
The Canadian Civil Liberties Association (CCLA) also succeeded. While it is not focused on animal welfare, it aims to defend “the public interest in free and open expression and discussion on matters of public interest.” The court was satisfied that the CCLA’s broader examination of free-expression protections, especially whether “the location of expression can exempt state-imposed limits from Charter scrutiny,” will be distinct from other interveners.
Employer’s side
On the employer side, the Labour Issues Coordinating Committee (LICC), representing Ontario’s farm employers, was granted leave as well. The court accepted that the LICC “has a real, substantial, and identifiable interest” in the outcome and offers a viewpoint neither Ontario nor the respondents fully represents.
In contrast, three other groups were denied intervener status. Justicia for Migrant Workers (J4MW) repeated its lower-court arguments about safeguarding temporary foreign workers and farmworkers without formal immigration status, but the application judge had ruled that the contested provisions do not target “legally employed” individuals who are on site with consent. The higher court found “speculative arguments” about how the legislation might catch migrant workers were unsupported by the record. It decided J4MW’s arguments could also unduly broaden the scope of the case.
Canadian Journalists for Free Expression (CJFE) wished to focus on sections 11 and 12 of the Regulation, but those provisions, apart from the “reporting requirement” in section 12(1)(d), are not part of Ontario’s appeal. The court noted that “the issues that would be addressed by the CJFE are now moot” since Ontario has amended section 11. The final denial went to Animal Environmental Legal Advocacy (AEL Advocacy), which sought to frame the Regulation’s impact in terms of Ontario’s Environmental Bill of Rights, 1993. The court found no evidence in the record or in prior proceedings linking the contested provisions to environmental-advocacy rights, ruling that to entertain those arguments would again extend the case beyond its current boundaries.
The court ordered that each successful intervener may file a 10-page factum and receive 10 minutes of oral argument. Ontario can file a single, consolidated 20-page factum in response. The respondents will have 10 pages to address any new points from the interveners. No costs were awarded.
Overall, Ontario’s appeal now centres on whether section 9 legitimately limits expression or imposes unwarranted restrictions on individuals who use deceptive tactics for investigative or advocacy purposes, and whether section 12(1)(d)’s requirement to report wrongdoing violates protected expression.
The successful interveners will focus on differing angles of animal-welfare advocacy, worker whistleblowing, civil liberties and farm-employer concerns. The court emphasized that all interveners must avoid duplicative submissions and must not stray into fresh legal territory.
For more information, see Animal Justice v. Ontario (Attorney General), 2024 ONCA 941 (CanLII).
