Nov 19, 2019

BLANEY'S APPEALS: COURT OF APPEAL SUMMARIES (NOVEMBER 11 – 15, 2019)

Ontario (Attorney General) v. Bogaerts, 2019 ONCA 876 (CanLII)

[Sharpe, Hourigan and Roberts JJ.A.]

COUNSEL:

Daniel Huffaker, for the appellant

Kurtis R Andrews, for the respondent

Shain Widdifield, for the intervener the Attorney General of Canada

Arden Beddoes, Camille Labchuk and Kaitlyn Mitchell, for the intervener Animal Justice Canada

Stephen McCammon, for the intervener the Information and Privacy Commissioner of Ontario

Andrew Faith and Brookelyn Kirkham, for the intervener Railway Association of Canada

Graeme A Hamilton and Alannah Fotheringham, for the intervener Canadian Civil Liberties Association

FACTS:

This appeal considered the constitutionality of the statutory authority conferred upon inspectors and agents designated by the Ontario Society for the Prevention of Cruelty to Animals (the “OSPCA”) to exercise the powers of a peace officer in the enforcement of laws pertaining to the welfare and prevention of cruelty to animals. The respondent is a paralegal who was given public interest standing to challenge certain provisions of the Ontario Society for the Prevention of Cruelty to Animals Act.

The application judge dismissed the respondent’s argument that provisions in the OSPCA creating offences were matters of criminal law and therefore beyond the legislative authority of the province. The application judge also dismissed the respondent’s contention that certain provisions in the OSPCA infringed s. 8 of Charter of Rights and Freedoms guaranteeing the right to be secure against unreasonable search and seizure. However, the application judge accepted the submission that some of the OSPCA’s search and seizure provisions violated the s. 7 right not to be denied liberty and security of the person except in accordance with the principles of fundamental justice. He found that those search and seizure powers engaged the liberty and security of the person interests and he recognized a novel principle of fundamental justice, namely, that “law enforcement bodies must be subject to reasonable standards of transparency and accountability”. The application judge struck down the sections of the OSPCA conferring the powers of a peace officer on OSPCA officers and agents as well as two sections authorizing search and seizure.

The appellant, the Attorney General of Ontario, appealed the order granting the respondent public interest standing and the s. 7 order striking down three sections of the OSPCA. The respondent cross-appealed the dismissal of the s. 8 argument and sought to add that “law enforcement bodies must be funded in such manner to avoid actual or perceived conflicts of interest or apprehension of bias” as an additional principle of fundamental justice.

ISSUES:

(1) Did the motion judge err by granting the respondent public interest standing?

(2) Did the application judge err by rejecting the s. 8 challenge to ss. 13(6), 14(1)(b) and 14(1)(c)?

(3) Did the application judge err by finding that ss. 11, 12 and 12.1 engage the liberty and security of the person interests under s. 7?

(4) Did the application judge err in recognizing a novel principle of fundamental justice?

HOLDING:

Appeal allowed. Cross-appeal dismissed.

REASONING:

(1) The Court did not deal with this ground of appeal in any detail. However, the Court pointed out that the combined effect of the order granting the respondent public interest standing and striking out the affidavits providing specific instances of the infringement of Charter rights resulted in the court having a less than satisfactory record. In Downtown Eastside Sex Workers, 2012 SCC 45, the Supreme Court noted that there was a substantial record of affidavit evidence as to the operation and impact of the challenged legislation, to “provide a concrete factual background” for the challenge. By contrast, on this application and appeal, the constitutional arguments were advanced in the abstract without a proper factual foundation. In the Court’s view, it would have been preferable had this challenge come before the court either on the application of an individual who had been subjected to the challenged statutory powers, or upon some other proper record, to provide a concrete factual context for the consideration of the constitutional issues raised.

(2) No. The application judge did not err in dismissing the s. 8 claim. The principal focus of the respondent’s cross-appeal was that all three provisions allow for warrantless searches of and seizures from dwellings. The application judge rejected the s. 8 challenge on the ground that a person subject to a search or seizure under the challenged provisions would not have a reasonable expectation of privacy, in part at least because of their non-criminal nature. The Court agreed with the respondent that the application judge’s analysis was unpersuasive. The Court held there can be no doubt that individuals enjoy an expectation of privacy in their dwellings. However, the search and seizure powers at issue all favour a lower standard of reasonableness. The Court was therefore satisfied that the impugned provisions do not violate s. 8 of the Charter.

First, as the application judge observed, the present case dealt with a regulatory rather than a criminal matter where a “less strenuous and more flexible standard of reasonableness” applies: Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425.

Second, these provisions dealt less with gathering evidence and more with the prevention and alleviation of harm. According to the Court, the present case dealt with exigent circumstances where the expectation of privacy yields to prevention of imminent harm: R. v. Godoy, [1999] 1 S.C.R. 311. An animal in distress is unable to draw attention to its plight. More serious harm or even death may result if prompt action is not taken to relieve the animal’s distress. Entry under ss. 13(6) and 14(1)(c) is only permitted where the owner or custodian has already been ordered to act to relieve animal distress. Seizure under s. 14(1)(b) is only permitted where an animal is in distress and the owner or custodian is not present and cannot be found promptly. While this falls short of the protection afforded by prior authorization obtained through a judicially approved search warrant, in the Court’s view, it is a sufficient safeguard against unreasonable search and seizure in the context of animal protection.

(3) Yes, the application judge erred in concluding that the impugned provisions engage the liberty and security of the person interests under s. 7. It is well-established that the analysis under s. 7 proceeds in two stages. The first question is whether the impugned law infringes life, liberty or security of the person. If the answer to that question is yes, the second question is whether the infringement is in accordance with the principles of fundamental justice.

Liberty

The application judge concluded that because the exercise of the powers conferred by ss. 11, 12 and 12.1 could lead to prosecution, conviction and imprisonment under the offence provisions of the OSPCA,, the liberty interest was engaged. In the Court’s view, this amounted to an error of law for two reasons.

First, this was not an appeal from conviction. The Court agreed with the appellant that viewed on their own, the powers conferred by those provisions are too remote from the possibility of conviction and imprisonment to engage the liberty interest.

Second, the Court found that holding that the risk of imprisonment is possible as an eventual consequence of a search would turn virtually every s. 8 challenge into a s. 7 challenge as well. In the Court’s view, that would be wrong and contrary to established authority.

Security of the Person

The Court held that the application judge also erred in concluding that the impugned provisions engaged the security of the person interest protected by s. 7. The impugned powers plainly do not interfere with bodily integrity or control over one’s body. While the Court held that there was no doubt it would be unsettling to have one’s premises or dwelling subjected to a search under the impugned powers, there was nothing in the record to suggest that a search of that nature would impose the level of state-imposed stress contemplated by the case law.

However, in the Court’s view, the application judge should have confined his analysis of any challenged search and seizure provision to the specific s. 8 guarantee. The Court did not agree with the application judge’s determination that a s. 7 analysis was appropriate in the “particular context” of this case to address the respondent’s issues. Rather, the issue should have been framed in terms of the reasonableness of the powers of search and seizure. To succeed, the respondent should have been required to show that conducting a search or seizure without reasonable standards to ensure transparency, accountability and adequate funding is unreasonable under s. 8. The Court disagreed with the respondent’s submission that if the Court accepted that the analysis should proceed under s. 8, the Court should still strike down ss. 11, 12 and 12.1 on the grounds that the absence of transparency, accountability and adequate funding renders searches conducted under these provisions unreasonable. The respondent’s complaint is with the general governance of the OSPCA, not with the definition of its statutory powers or the manner in which they are exercised.

The Court addressed the specific provisions challenged as being unreasonable: ss. 12 and 12.1. Subsection 12(1) allows inspectors and agents with a warrant to search a building or place to determine if an animal is in distress while subsection 12(6) allows for entry without a warrant upon reasonable grounds to believe that an animal is in immediate distress. Section 12.1 allows inspectors, agents and veterinarians who are lawfully in a place to take a carcass or sample of a carcass. Neither provision authorizes the warrantless search of a dwelling. Section 12, dealing with exigent circumstances and the seizure of a carcass or part of a carcass, represents a minimal interference with the owner’s or custodian’s rights. They are arguably less intrusive of an owner’s or custodian’s privacy interest than the other provisions the Court dealt with. For the reasons the Court gave with respect to the other provisions challenged under s. 8, the Court rejected the challenge to ss. 12 and 12.1.

(4) Yes, the application judge erred in recognizing a novel principle of fundamental justice. In applying the three criteria summarized by the Supreme Court of Canada in Malmo-Levine, 2003 SCC 74, the Court agreed with the appellant that the proposed new principle of fundamental justice meets none of these three criteria.

The Court first addressed the first criterion, namely, whether transparency, accountability and adequate funding qualifies as a “legal principle” capable of supporting s. 7 analysis. The application judge gave as examples of transparency the open court principle and legislation relating to access to information. The need to support legal decisions with reasons was given as an example of accountability. In the Court’s view, those examples fell short of supporting what is required to constitute a legal principle that “provides meaningful content for the s. 7 guarantee” and that avoids the “adjudication of policy matters”. A legal principle that is used “as a rule or test in common law, statutory or international law” will satisfy the first criterion of the principles of fundamental justice test: Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7. Transparency and accountability have a more limited legal pedigree. They are background values that the law sometimes takes into account in various ways and in various contexts. Courts may consider these values in interpretation but they have not crystalized into the kind of operational or normative legal principles that can be independently deployed by a court to determine rights and obligations that will satisfy the s. 7 test.

The Court then discussed the second criterion: whether transparency, accountability and adequate funding are “vital or fundamental to our societal notion of justice.” The Court cited Canadian Foundation for Children, where the Supreme Court of Canada held that while “the best interests of the child” is a legal principle that succeeds at the first stage, it fails to meet the second criterion as a principle that is vital to our societal notion of justice. In the Court’s view, “best interests of the child” is much closer to being “vital or fundamental to our societal notion of justice” than transparency, accountability and proper funding. The latter values are regularly subordinated to other concerns.

Finally, the Court did not think that the proposed principle satisfied the third branch of the test that it “be capable of being identified with precision and applied to situations in a manner that yields predictable results.” It was far from clear to the Court what measures would be required to satisfy this alleged principle of fundamental justice. Achieving transparency, accountability and adequate funding for any public body opens a complex and multifaceted inquiry that could yield a wide range of outcomes.

To accept transparency, accountability and adequate funding as a principle of fundamental justice would, in the Court’s view, create uncertainty and necessarily involve the courts in the “adjudication of policy matters”. However, the Court pointed out that the operation of the OSPCA is not entirely devoid of transparency and accountability. If a prosecution is brought by the OSPCA, any searches or seizures are subject to judicial and Charter scrutiny.

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