The OSPCA Act: Hidden Denied Oversight. · for the protection of animals that were starved, beaten,...

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The OSPCA Act: Hidden Denied Oversight. ©

A report created by the Research Team of the

Ontario Landowners Association January 2013 ©

E.F. Marshall, Director of Research Tom Black, President o.b.o. Research Team Ontario Landowners Association Ontario Landowners Association 1-613-831-2642 [email protected]

http://www.ontariolandowners.ca/

“… that it may be declared and enacted, that all and singular the rights and liberties asserted and claimed in the said declaration are the true, ancient, and indubitable

rights, and liberties of the people of this Kingdom, and so shall be esteemed, allowed, adjudged, deemed, and taken to be, and that all and every the particulars aforesaid shall be firmly and strictly holden and observed, as they are expressed in the said

declaration. And all officers and minister whatsoever shall serve their Majesties and their successors according to the same in all times to come.”i

The above statement, from The Bill of Rights, 1688-89, is part of the Constitution of Canada and is inclusive of the Province of Ontario, limiting the powers of the Crown and the legislators. The sad reality is that the legislators of today create legislation that, either violates the intent of our Constitution and the Commonwealth, or creates legislation that is meant to be misleading. Whichever the case may be, both are a breach of the trust, the trust that the people have granted to our elected officials. According to the Constitution of Canada (Preamble of the British North America Act, 1867ii), and the documents that make up the Constitution of Canada, all legislation, statute, by-law, regulation that violates this contract between the people, the legislators, the courts and the Crown is void and of no effect. The OSPCA Act, Hidden Denied Oversight.

TABLE OF CONTENTS ACKNOWLEDGEMENT Page 1 EXECUTIVE SUMMARY Page 2 A BRIEF HISTORY Page 4 THE OSPCA ACT, R.S.O. 1990 – CORPORATE STRUCTURE Page 21 REGULATION AND THE POLICE SERVICES ACT Page 27 CONCLUSION Page 67 The veterinary profession’s role in policing animal welfare Page 70 GLOSSARY Page 78 CRIMINAL CODE OF CANADA Page 80 ABOLITION OF THE STAR CHAMBER, JULY 5, 1641 Page 82 END NOTES Page 88

The OSPCA Act: Hidden, Denied Oversight © January 2013 by the OLA Page 1

ACKNOWLEDGEMENT Terrance J. Green, LLB, MPA, BA Senior Partner Green & Associates Law Offices 200 – 190 O’Connor St, Ottawa, ON K2P 2R3 Phone: 1-613-560-6565, ext, 22 Fax: 1-613-560-0545 Email: [email protected] We would like to thank Terry, for his time and support during the creation and editing of this document. Terry participated as Legal Advisor in vetting this report. Terry practices law in the fields of animal law, real estate and disabilities law. He has a BA, St Mary’s University, 1978, Masters in Public Administration (MPA), University of Winnipeg, 1992, LLB, University of Ottawa 1999.

mailto:[email protected]


EXECUTIVE SUMMARY In the late 1800’s there was a need for the OSPCA. During this era there were frequent cases of extreme cruelty to animals. Today there are very few cases of cruelty to animals and instead of protection to animals the OSPCA seems to be more involved with fund raising and monetary growth. From then to now there seems to have been a shift away from the charitable protection of all animals, to more investigation, enforcement, and policing by the OSPCA through the Act. And since the inception of Bill 50 – OSPCA Act there have been calls for accountability. It has been expressed in the House of Commons, in Queen’s Park, time and again, by the opposition, that the presiding government create some form of oversight, to no avail. As an example, a letter sent to Jim Bradley when he was Minister of Community Safety and Correctional Services:

Dear Minister Bradley Residents of Ontario are helpless and so angry at the continued lawlessness,

arrogance, vindictiveness and ignorance exhibited by Ontario Society for the Prevention of Cruelty to Animals’ (OSPCA) inspectors and volunteer agents. Tell me, where do we go for help?...

… We are at the mercy of your Ministry’s legislation and we are begging for your help. We have been begging for help for years.

The law must be changed. The OSPCA has done as it pleases for far too long. Issues of improper governance, spending, euthanasia rates & shelter protocol, abuse of enforcement powers, perjury, lack of transparency, charter violations, conflict of interest, allegations of extortion etc. must be swiftly addressed. We’ve already had one farmer attempt suicide as a direct result of repeated bullying tactics of OSPCA inspectors.

SOMEONE, SOMEHOW, SOMEWHERE must be able to hold this private self-funded police force accountable for their actions. Please amend the OSPCA act to ensure accountability, transparency and governmental oversight of the Ontario Society for the Prevention of Cruelty to Animals. Recently well over 2,000 petitions have been distributed to virtually every MPP in the provincial legislature. We demand that your Ministry review the powers of the OSPCA.

Re-read the province wide Bill 50 Committee hearings in Hansard July 2008. Do not ignore this issue. Too many families live in utter fear of the Ontario SPCA. I do not believe this is what the government’s intent was in passing the Ontario SPCA Act.3

Jim Bradley expresses that "The government has no authority over the OSPCA under the Act".4, and there would seem to be a variety of problems with his statement. There is a form of oversight in the OSPCA Act being section 22 (2)5, expressing that the Minister may make regulations in regards to the agents/inspectors standards. The OSPCA Inspectors and Agents are considered Peace Officers under the Police Services Act, section 42 (1)6, 807, 818 and 1359, and as such, being Peace Officers they, as Peace Officers must subscribe to the regulation and they must follow certain protocol when implementing their authority. There is also Part V of the Police Services


Act. This has basically been hidden from the public or why would Ontarians be demanding “oversight”. Mr. Bradley knows that there is oversight, and yet he has made the statement that “the government has no authority over the OSPCA.” If there is no “oversight” then the OSPCA Act violates the Constitution as this is a corporation with police powers which is beyond the legislative authority of, not only the provincial government, but of the Crown. The crown cannot have a corporation with the ability to take property, implement police powers unless there is oversight due to the oaths that the agents are required to take as well as the oaths the legislators have sworn involving their legal obligations to the people of Ontario. Please see the Bill of Rights.

Presently Minister Madeleine Meilleur is the current Minister administering the OSPCA , and she stated in an article for CBC10, October 2012 that the legislature can, in fact, amend the OSPCA Act to introduce even stricter regulations. If this is the case then the Minister does have the authority and ability to regulate this corporation, ergo, the statement that there is no ability for regulation and/or oversight is available to government is a false statement. In other words these Ministers could be conceived as making false statements to the people of Ontario or they are misinformed and/or they merely do not want to do as Ontarians demand. In the best interest of the people of Ontario there are a number of statutes to investigate in regards to the OSPCA. Some of these, yet not inclusive of all, pieces of legislation that pertain to the OSPCA are the OSPCA Act, the Police Services Act, the Provincial Offenses Act, the Bill of Rights, the Constitution, etc., to try to find why “oversight” has been hidden and/or denied, by government. Certain court cases will also be used to support that oversight is a must when dealing with a corporation that has policing powers.


A BRIEF HISTORY According to the OSPCA Training Manual, 2002, the OSPCA came to life in 1873 for the protection of animals that were starved, beaten, experimented on inhumanely11 and were killed, in other words the protection of animals from cruelty. This included protection for orphans who were also being treated cruelly. The Children’s Aid Society was created leaving the OSPCA strictly for the protection of animals from cruelty12. Please note that the Children’s Aid Society does not have police powers, and yet they are dealing, daily, with the malicious and/or criminal treatment of children. These children are not animals so would they not deserve even more protection?

It took 46 years of lobbying government for OSPCA to be incorporated in 1919. The original statute created was No. 26 and the Bill was entitled “An Act to Incorporate the Ontario Society for the Prevention of Cruelty to Animals.” And it stated:

No. 26 1919.

An Act to Incorporate the Ontario Society for the Prevention of Cruelty to Animals

Whereas it is desirable to facilitate and provide for the prevention of cruelty to

animals and their protection and relief therefrom as hereinafter provided; and whereas The Right Reverend James. F. Sweeny, Lord Bishop of Toronto; The Reverend Rabbi Solomon Jacobs; Robert Gregory, Police Inspector; J. J. Kelso, J. M. Wilson, T. M. Barry, W. W. Canham and John J. Dixon, all of the City of Toronto, Esquires, by their petition, have prayed for an of incorporation under the name of The Ontario Society for the Prevention of Cruelty to Animals for the said purposes; and whereas it is expedient to grant the prayer of the said petition

Therefore, His Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows: --

1. The Right Reverend James. F. Sweeny, Lord Bishop of Toronto, the Reverend Rabbi Solomon Jacobs, Robert Gregory, Police Inspector; J. J. Kelso, J. M. Wilson, T. M. Barry, W. W. Canham and John J. Dixon, all of the City of Toronto, Esquires, all of the City of Toronto, and all persons who shall hereafter become members thereof as hereinafter provided, shall be and they are hereby created a body politic and corporate under the name of The Ontario Society for the Prevention of Cruelty to Animals.

2. Any three or more of the persons named in section 1 may summon the first

meeting of the society by a public notice to be signed by them and inserted in one or more newspapers published in the City of Toronto, and such meeting shall be held in the said City of Toronto at such time and place as the persons signing such notice shall thereby appoint.


3. The said society shall consist of all persons who shall contribute to the funds thereof according to the rules and regulations of the society, and for the purpose of holding the first meeting and all other preliminary meetings prior to the adoption of a constitution, shall consist of all persons who shall have subscribed and paid a sum of not less than two dollars to such fund.

4. The society may make and adopt such constitution, rules and regulations

not contrary to law as it may deem necessary for the control and management of its affairs.

5. The society shall have power to:--

(a) Acquire and hold as purchasers, donees, devisees, or legatees or legatees or in any other capacity any interest in lands and tenements, accept, receive and hold any gifts, devises, bequests or subscriptions, either of real or personal estate; grant, lease, bargain, mortgage, sell, assign or otherwise dispose of any such lands or tenements or personal estate as in its opinion may be necessary and property for its purposes, provided that the land which may be so acquired and held by the society shall not exceed an annual value of $5,000.00;

(b) Erect, construct, equip and maintain any building or works which

it may deem necessary or convenient for the purposes of the society;

(c) Form and establish branch societies and take over and establish

any such existing society or association having similar objects in whole or in part with the society, and in all cases subject to such conditions and regulations as the society may deem expedient;

(d) Do all such other matters and things as it may deem necessary

for carrying out its purposes.

6. For the purpose of the enforcement of >the provision of this or any other < Act for the prevention of cruelty to animals, any inspector or agent of the society shall have the power of a constable in any municipality or district in Ontario, and the society shall be entitled to the assistance of all magistrates, Crown attorneys, sheriffs, constables and police officers in and for the enforcement of such statutes.

7. The society or any branch society shall not be responsible for any wrongful

act done by any of its officers, inspectors or agents, unless the same has been previously authorized or subsequently ratified by such society or its governing body.


8. The society shall not be responsible for any debts, liabilities or acts contracted, done or permitted by any branch society or its officers, nor shall any branch society be responsible for any debts, liabilities or acts contracted, done or permitted by the society or its officers or any other branch society or its officers.

9. – (1) If any inspector or agent of the society has reasonable grounds for

supposing that an animal is being ill-treated or neglected, he may take possession of it in any place for the purpose of having it examined by a veterinary surgeon.

(2) If the owner can be conveniently found, he shall be notified of the

time and place of such examination. (3) If, in the judgment of the veterinary surgeon, the animal has been

neglected or cruelly treated, the inspector or agent, with or without the consent of the owner or person entitled to the possession thereof, may >with the approval of the veterinary surgeon< forthwith destroy it, or may place it under proper and sufficient care and treatment and keep it under such care and treatment for a period not exceeding thirty days during which time the owner shall have access to and the use of such animal, with the consent and approval of the veterinary surgeon.

(4) The owner of any such animal shall be held liable for the food, care

and treatment of it, and the society shall have a lien on it for the cost of all provisions, care and treatment supplied by the society.

(5) If the owner of the animal neglects or refuses to pay for such food,

care and treatment within five days after being notified, or if the owner, after due enquiry, cannot be found, the society may sell or dispose of the animal and reimburse itself out of the proceeds, paying the balance to the owner of said animal or to the person entitled thereto.

10. The land and buildings of the society shall be exempt from taxation except

for local improvements and school purposes so long as the same are held, used and occupied for the purposes of the society.

> 11. Except as herein otherwise provided, the provisions of The Mortmain and

Charitable Uses Act shall apply except that it shall not be necessary to sell any land now or hereafter acquired which is actually and bona fide held, used and occupied for the purposes of the society. <


The OSPCA training manual continues to express that 40 independent humane societies either closed or went bankrupt, in the province, and government had to act. It expresses that this is why section 10 was added to the act making all “humane societies” become affiliated with or under the OSPCA.

In the late 1960’s the act was amended that agents/inspectors of the OSPCA needed to have reasonable grounds to obtain a warrant, and in the training manual it uses the word “distress”. This is not part of the OSPCA as this corporation was created for the prevention of “cruelty to animals” therefore the term “distress” could be misleading to the reader of the manual.

In the 1970’s was when government began to provide some of the funding for the

OSPCA and the corporation continued to grow and add more branches. The affiliates, though, were independent and do not have “police powers” leaving them at a disadvantage to the branches of the OSPCA due to legislation. The manual also states that the “force of inspectors and agents is always growing.”

The manual continues with a report that was produced in 1997 regarding the

association of cruelty to animals and cruelty to humans. On page 3 of the manual is a very telling paragraph. It states:

“The Society’s 2001 Annual Report lists statistics that demonstrate a significant increase in the effectiveness of the Investigations Department in terms of its ability to carry out the object of the Society: protection and relief for animals in distress.”

This is a false statement as the object of the OSPCA, section 3 of the act states:


“Object, 3. The object of the Society is to facilitate and provide for the prevention of cruelty to animals and their protection and relief therefrom. R.S.O. 1990, c. O.36, s. 3.”

And yet one must go forward to page 4 to see the above section actually cited. It goes on to say:

“While slightly fewer complaints were investigated over the previous year, the results of those investigations had a far greater impact. More animals were taken into care and more criminal charges were laid. As the following statistics show, the next step is to bring into force amendments to the Criminal Code of Canada that are currently before Senate, that will permit an increase in criminal convictions as well as stricter penalties for these offences.

Complaints investigated dropped by 6.7% Orders issued increased by 22% Search warrants increased by 24.6% Animals taken in through removals and abandonment rose 7.6% Surrendered animals increased by 13.6% Criminal code charges laid were up 25.8% Criminal convictions decreased by 5.2%”

The mission statement of the OSPCA in this manual states:

“Consistent with the Ontario SPCA Act, the mission of the Ontario SPCA is to facilitate and provide for province-wide leadership on matters relating to the prevention of cruelty to animals and the promotion of animal welfare. The Society’s goal is be become a strong, unified and collaborative organization, dedicated to the cultivation of a kind and compassionate Ontario for all animals.”

Regardless of what the mission statement dictates, the object of the OSPCA is for the “prevention of cruelty to animals and their protection and relief therefrom”, it is not to “cultivate a kind and compassionate Ontario”, as no one can dictate psychology, including the provincial government, so this is beyond the authority of the province and the corporation. This OSPCA also has no authority to make statements that support the arbitrary implementation and interpretation of the act. What also is very concerning are some of the core values of the OSPCA. These include, but are not limited to:

1. The Ontario SPCA must act to …encourage consideration for all animals 2. No animal should suffer 3. The Society should advocate for improved animal welfare… 4. Those who …neglect animals should be appropriately penalized 5. All animal welfare organizations should work cooperatively for the benefit of

animals

http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90o36_f.htm#s3


6. The Society should set high standards for animal care 7. The Society should serve the whole province

1. (this does not include illegally forcing “consideration for all animals”) 2. and 3. (2. and 3. this is beyond the purview of a charity and “animal welfare” is again beyond the OSPCA charter) 4. (neglect can be again be misinterpreted and can be used in a vast variety of situations that do not include “animal cruelty”) 5. (this has been accomplished with the WORLD SOCIETY FOR THE PROTECTION OF ANIMALS) 6. (again this is beyond the OSPCA charter) 7. (this would create an illegal monopoly)

The core values are beyond the authority of the OSPCA and considering some of the statements of these core values, this leaves the majority of animal owners, within the geographical boundaries of Ontario, in a very serious situation. The majority of people are very considerate of, and appreciate animals. They know that animals are used in a variety of ways, such as, food, clothing, transportation, entertainment, aid/companions, etc., and it is very few Ontarians who maliciously or criminally harm animals. The statement that no animal should suffer needs defining. If this is the case then what about those unfortunate animals that are displayed by the OSPCA that have been operated on, can’t walk and have some form of apparatus attached so that the animal can move around13. What of those animals that agents have demanded amputation of a leg or destruction of the animal, when in fact the appendage only needed time to heal or the destruction of an animal that waddled when it walked due to its natural size and gait? Improved animal welfare again is beyond the objects of the OSPCA and in regards to neglect. How is neglect defined?

NEGLECT - Black’s Law Dictionary, 9th Edition, 2009, p. 1132 – 1. The omission of proper attention to a person or thing, whether inadvertent, negligent, or willful; the act or condition of disregarding. 2. The failure to give proper attention, supervision, or necessities, esp., to a child, to such an extent that harm results or is likely to result.

This is unreasonable, particularly when one must work and not always be with the animal, or what of herd animals, farm animals, horses, etc. Please note the last statement of the definition “esp., to a child, to such an extent that harm results or is likely to result.” This is the question, when did an animal become equivalent to a child? And what of an animal is grazing, which animal is more important: the grazing animal or the wild animal, such as a wolf, that is attacking the grazing animal? And is someone to be in the field with the grazing animal at all times and/or if not would that be considered “neglect”? “All animal welfare organizations should work cooperatively…” Animal activist and the various non-profit animal organizations have joined forces as expressed at the


committee meetings regarding the OSPCA Act and they seem to be very well funded. The people making the donations want what’s best for animals, the majority of people do. Pet owners generally want ensure that “fido” or “kitty” is looked after properly or it is the agricultural community that wants the best of the best for income and pride in their stock. As Carl Noble put it in the Ontario Farmer, Tuesday December 25, 2012:

“I was a member of the Humane Society in my area and went with the OSPCA when they took over. I was on the Provincial Board as well, but that was in an era when they used to try and help animals by accommodating the person who was adopting them. It used to be that the Humane Society would take in animals when people couldn’t look after them. They would assist people who had animals, but needed a hand to keep them because of problems in their household. Money was raised to spend on the animals that came to their attention, whether they needed an animal spayed or neutered, a bag of food until they got over their financial crisis, or whether they just need information on the proper care of the animal they had. Mr. Wilcox would really get his eyes opened if he knew what goes on now at the OSPCA.”

“The Society should set high standards for animal care…” is, again beyond their purview and the charter of incorporation, as it isn’t for the OSPCA to tell people what “standard of care” an animal should receive. For example, if one has a cat that wants to be outside at night, or a barn cat, one would be charged because the cat, in a rural area, was roaming about at night. Cats, by and large are always trying to get out, they are curious by nature and/or they like being outside. Cats are natural hunters, ergo they enjoy living in barns hunting mice, rats, etc., but with this statement a cat would be denied this because of the OSPCA strict “standard of care”. And from reports the “high standards of animal care” would be implemented by overzealous agents/inspectors and no one would want a cat leaving cats to be destroyed as unwanted.

“The Society should serve the whole province”, this statement could be a statement of not protecting animals from cruelty, but could be considered a statement of corporate building. When one considers that presently the top three executives of the OPSCA receive, in salary and taxable benefits, over $480,00014 from the corporation and there are 80 “inspectors and agents” plus administrative staff, shelter workers, etc.15 The CEO stated that the salaries of the workers could not be revealed due to “privacy issues”16 and yet the CFO is demanding from all levels of government as well as donors an increase to $20 million for his annual budget.17 According to an article in the Toronto Star the CEO said that:

“(Animal protection) can’t be free anymore. It has been free for too long,” 18

The article goes on to say that the CEO (MacDonald):

“MacDonald hopes new funding will help boost the number of agents and investigators from 80 to 100. The internal memo also asks for money to cover more administrators, legal fees and housing for investigators on the road. It hints


that the agency wants to set up a “provincial call centre” to take reports from the public who fear an animal is in distress.”

Couple that with Mike Draper moving from Chief Inspector of the OSPCA to Inspector for OMAFRA and Clayton Ruby representing the OSPCA19 against Jessica Johnson, it would seem that corporate ambition and/or expensive legal representation is replacing animal protection.

And what are Michael Draper’s credentials, in regards to farm practices and the agricultural community? Other than his work as Chief Inspector with the OSPCA, does he have a veterinarian back-ground? Has he worked in the farming industry? Does he and/or has he worked in animal husbandry? These are questions that should be asked and answered considering his present position. His bio reads:

‘Michael Draper Inspector Ontario Agriculture, Food and Rural Affairs Michael Draper is employed with the Animal Health and Welfare Branch of the Ministry of Agriculture, Food and Rural Affairs (OMAFRA). Michael is responsible for conducting inspections at Ontario’s 42 livestock community sales facilities, which auction over 1 million animals each year, and for the enforcement of the Beef Cattle Marketing Act at abattoirs in Ontario. Prior to his employment with OMAFRA, he was employed as Chief Inspector of the Ontario Society for the Prevention of Cruelty to Animals (OSPCA). As Chief Inspector, his responsibility was to manage the OSPCA’s province wide animal cruelty investigations program. While at the OSPCA, Michael implemented a number of progressive programs to improve the OSPCA’s investigations capacity. These programs include significantly enhanced training for new investigators, establishing a dedicated Livestock Inspector position with specific training and knowledge in farm animal care and husbandry practices, and improved investigator standards with formal written policies. Michael also worked to advance the welfare of farm animals in transit through the Ontario Humane Transportation Working Group. The Ontario Humane Transportation Working Group is comprised of members of government, livestock and trucking industry, the veterinary community, OFAC and the OSPCA. This group has been able to significantly enhance the awareness surrounding humane transportation issues amongst livestock producers and transporters in Ontario. In 2006, Michael completed a six-year term on the board of directors of the York Region Children’s Aid Society where he also chaired the Quality Assurance Committee.”20

Much has changed since the 1919 document was enacted as a “Private Bill”.

The present legislation does not have a preamble to explain the “purpose” of the corporation but an explanation of purpose/object of the corporation is in section 3 of the OSPCA Act.


In 2008, during the presentation to the Standing Committee on Justice Issues, regarding Bill C50, the OSPCA Act there was statements made for and against this Bill, including statements made by Ms. Stephanie Brown, CANADIAN COALITION FOR FARM ANIMALS. Ms. Brown’s statement about the “five freedoms adopted by the Farm Animal Welfare Council in the United Kingdom21. These include freedom from thirst, hunger and malnutrition; freedom from discomfort; freedom from pain, injury and disease; freedom to express natural behaviour22; and freedom from fear and distress.”23 The Five Freedoms that have been established must be explained so that those in the agricultural community understand that there really is no “natural behaviour”, as it encompasses what is being fulfilled in the previous statements. It is to provide for reasonable farm practices and the use of common sense. A report was funded by the “Compassion In World Farming Fund” for “How important is natural behaviour in animal farming systems?, Marek Spinka, Ethology Group, Research Institute of Animal Production, CZ-104 01 Prague-Uhrˇıńeˇves, Czech Republic, Available online 2 May 2006. The Compassion in World Farming is, as stated on their web-site24, the leading farm animal welfare charity. Their web-site states:

“We are immensely proud of what we have achieved so far: Our award winning undercover investigations have exposed the reality of modern intensive farming systems and brought the plight of farm animals to the attention of the world's media Our political lobbying and campaigning has resulted in the EU recognising animals as sentient beings, capable of feeling pain and suffering. We have also secured landmark agreements to outlaw the barren battery cage for egg-laying hens, narrow veal crates and sow stalls across Europe Compassion in World Farming’s Food Business Team is working with some of the world’s biggest food companies - retailers, producers and manufacturers. The companies we work with are a key part of the drive towards a more ethical and sustainable food supply. Our Good Farm Animal Welfare Awards are already benefitting millions of animals each year. Over 311 million animals are set to benefit each year as a result of our Good Award winners’ policies. There are however, still many challenges we have to face if we are to realise our vision of a world where all farm animals are treated with compassion and respect and where cruel factory farming practices end. Compassion in World Farming was established in 1967 by British dairy farmer Peter Roberts. Peter and his wife Anna had become increasingly concerned with the animal welfare issues connected to the new systems of intensive farming that began to take hold in the 1960s. Unfortunately, at the time, Peter couldn't convince any of the major animal welfare societies to campaign against factory farming, so he decided to do it himself and Compassion in World Farming was born.”

The report states that dogs bark, but if left to their natural behaviour, would that not be an impact on other animals causing them distress? This is a flawed demand of the five


principles as, if taken to an extreme, all animals would run rampant, harming themselves and people. Ms. Brown continues to state at Committee that:

“Farm animals in Ontario need and deserve the protection of Bill 50. …, Bill 50 proposes an exemption of these animals. Excluding farm animals from Bill 50 forfeits the opportunity to protect the largest category of animals in the province, more than 220 million in 2007. The recommendation of the Canadian Coalition for Farm Animals is that farm animals not be exempted from Bill 50.”

Farm animals are exempt from OSPCA intervention and based on the “Five Freedoms” and the animal activists such as “Animal Angels”, PETA, all farms would be non-existent. Farms could not function, nor could the agricultural community operate under animal husbandry, including kennels and/or dog breeders. According to Mr. O’Sullivan, representing the Humane Society of Canada, during presentations at this Committee meeting, he explained certain things about “natural behaviour” and that certain animals will always be in harms way. He states:

“We keep trying to bring human traits, and these are animals: They’re still animals, they act like animals. Some of them are predatory. You have pigs that will eat their young. You have dogs that will attack your chickens. When they’re in breeding cycle, they attack each other, whether it’s cocks or dogs. If you’ve got a female in heat, look out, you’ve got trouble. You can try to control them, but I’ll tell you, you’ve got to physically restrain them and physically keep them apart, and that can’t always happen when you’re using them for working dogs, for guardian dogs, for herding dogs. That also goes for animals of burden, beasts of burden. There should be an exemption because you’ve got these other exemptions for agricultural, but there is none for use of dogs as in working dogs for sledding and other types as in hunting. If you take a dog hunting, there’s a possibility it’s going to tangle with a coyote if you’re coyote hunting. That could be seen as cruelty the way these guys are going.’25

Also during the Committee meeting MPP Garfield Dunlop was quite concerned with implications that he was unaware of, in regards to Bill C50, OSPCA Act. He states:

Mr. Garfield Dunlop: I don’t know if you’re aware of this—…—but when the government introduced this bill, we, on this side of the House at least, were under the impression that the bill was a bill to regulate roadside zoos. That’s what we understood. All the press conferences that surrounded it, the media advisories, all the media that the government brought forward on the bill at the time was that it was a bill to regulate roadside zoos only. So I think that because of the information that’s already out there, there are already a lot of people who are very suspect of what this bill will and will not do. That’s why, of course, we wanted fairly long hearings and to listen to a multitude of people. You being the first presenter here, it’s interesting that you’d come right out and ask for something in a


recommendation as—you’re right into farm animals immediately with this legislation, and we originally thought it was only a roadside zoo bill. I appreciate what you’re saying by asking for a major recommendation like this, but you can understand that, from our side of the House, we thought it was a roadside zoo bill only. The word “zoo” is not even included in the bill. I’d like you to comment on that, if you could. Ms. Stephanie Brown: When you read the act, when there is a specific exemption for farm animals, that does send up red flags. You’re specifically saying that farm animals don’t count, and we’re saying that they do count. …The initial steps are some of those that I reported, but it’s an initiative where people are recognizing that the way we treat farm animals is totally unacceptable….

And yet she didn’t answer Mr. Dunlop’s question. Mr. Levac expresses to Mr. Dunlop that this isn’t just about zoo regulation, stating: “Second of all, you might be surprised to hear that I disagree with the characterization of the member opposite that the bill was strictly written as a roadside zoo bill…”26 So the question begs to be asked, why would Mr. Dunlop consider this to be a bill on zoo regulation and inspection if he and the people of Ontario had not been led to believe that was what this bill was for? Were the people of Ontario misled by the government, in regards to Bill C50, the OSPCA Act? It would seem they were. Continuing with the Committee meeting, there seems to be a form of conflict that was not declared. Mr. Zimmer, Chair of the Committee, seems to be affiliated with WORLD SOCIETY FOR THE PROTECTION OF ANIMALS, as he received an award from this group27 as noted during the second reading on Bill C50, the OSPCA Act. The World Society for the Protection of Animals is described as:

“WSPA was formed in 1981 by merging the Dutch-based World Federation for the Protection of Animals, founded in 1951, with the International Society for the Protection of Animals, created earlier by merging programs of the Massachusetts SPCA, Royal SPCA of Britain, and the Humane Society of the United States. The World Federation for the Protection of Animals had always been an umbrella for member societies, organized initially to lobby the United Nations for the adoption of a Charter of Rights for Animals.”28 From Wikipedia, the free encyclopedia “The World Society for the Protection of Animals (commonly WSPA) is an international non-profit animal welfare organization and also a federation of such organizations and active in over 50 countries with more than 1000 member societies. Organization: WSPA has eighteen offices, located in: Australia, Brazil, Canada, Colombia, Costa Rica, Denmark, Germany, the Netherlands, New Zealand, Tanzania, Thailand, United States and United Kingdom. The main office is in London. The WSPA resulted from the merger of two animal welfare organizations in 1981, namely the World Federation for the Protection of Animals (WFPA) founded in

http://en.wikipedia.org/wiki/Non-profit

http://en.wikipedia.org/wiki/Animal_welfare

http://en.wikipedia.org/wiki/Australia

http://www.wspabrasil.org/

http://en.wikipedia.org/wiki/Canada

http://en.wikipedia.org/wiki/Colombia

http://en.wikipedia.org/wiki/Costa_Rica

http://en.wikipedia.org/wiki/Denmark

http://en.wikipedia.org/wiki/Germany

http://en.wikipedia.org/wiki/Netherlands

http://en.wikipedia.org/wiki/New_Zealand

http://en.wikipedia.org/wiki/Tanzania

http://en.wikipedia.org/wiki/Thailand

http://en.wikipedia.org/wiki/United_States

http://en.wikipedia.org/wiki/United_Kingdom


1953 and the International Society for the Protection of Animals (ISPA) founded in 1959.”29

So a foreign international animal activist group, which has created a “Canadian” division is having input into our legislation. This should raise warning bells, particularly when an elected official has affiliations with this group. Not to mention this group involves extreme animal activism of which can only be described as “attacks” on law abiding citizens. This was the case in the United States.

“The Wall Street Journal: Monday, December 31, 2012 The Elephant in the Courtroom: Don’t worry, kids. Elephants are staying in the circus. And the animal-rights activists who tried to drive them out are paying a price for their abusive litigation. On Friday Feld Entertainment, producer of the Ringling Brothers and Barnum & Bailey Circus, announced a legal settlement under which the American Society for the Prevention of Cruelty to Animals (ASPCA) has paid $9.3 million to the company. Yes, you read that correctly. A special-interest group sued a corporation and in the resulting settlement it was not the business but the activist group that had to write a check. The case is an example of how the ASPCA has become increasingly politicized and much different from the nice outfit that looks out for the well-being of homeless and lovable dogs and cats. Twelve years ago the ASPCA and other activist outfits joined with a former Ringling employee to sue the company under the Endangered Species Act. The claim was that Ringling was abusing Asian elephants. Perhaps the activists figured the circus would fold up its big top and write a check. Not on Chairman and CEO Kenneth Feld's watch. He's been working in the family business since 1970 and tells us that he's "proud of our animal care and I'll put it up against anyone in the world." After nine years of litigation, a federal court found that the plaintiffs had no standing to sue under the Endangered Species Act and that the former Ringling employee was "not credible" and "essentially a paid plaintiff and fact witness" whose only source of income during the litigation was the animal-rights groups that were his co-plaintiffs. Mr. Feld says the $9.3 million payment from the ASPCA represents less than half of what his company has had to spend defending itself against the "manufactured litigation" from the activists. But he seems likely to recover more. His company is continuing its litigation against the Humane Society of the United States, the Fund for Animals, the Animal Welfare Institute, the Animal Protection Institute United with Born Free USA, the former employee and the lawyers who prosecuted the bogus case. "This goes way beyond economics," says Mr. Feld. He adds that the "level of harassment" that his elephant trainers undergo from activists is almost "unbearable" and that "the activists are trying to bring down an American institution." The longtime Ringling boss argues that he is the trustee of a tradition "older than baseball" that offers a vanishing commodity for American families: affordable G-rated entertainment.

http://www.thewsjblogger.com/2012/12/31/the-wall-street-journal-monday-december-31-2012/

http://online.wsj.com/article/SB10001424127887324669104578207701802670408.html


Mr. Feld's legal victories ensure that the Ringling tradition will continue, but the larger winner is the cause of justice. A version of this article appeared December 31, 2012, on page A14 in the U.S. edition of The Wall Street Journal, with the headline: The Elephant in the Courtroom.”30

If the OSPCA and the World Society for the Protection of Animals are allowed to continue, this will happen in Canada, particularly with the WSPA having a Canadian division. At Committee the WSPA expressed that they support Bill 50 based on that it “creates a new provincial offence for causing or permitting distress to any animal. It raises the bar for establishing the strongest penalties in the country for those charged with animal cruelty, including the potential to ban the offender from owning an animal ever again. In granting the Ontario SPCA new powers to inspect zoos and other facilities, it should improve their ability to monitor the treatment of animals in these areas. And it would establish animal care standards that would apply to all animals and make failure to comply with these an offence. These are very significant protection measures, and we applaud the government for introducing them.”31

The representative from WSPA goes on to say “We were therefore very delighted when the Acting Chair of this committee, Mr. David Zimmer, introduced a bill back in October 2006, Bill 154, An Act to regulate zoos. Let me remind this committee that that bill received significant, widespread public support from people across this province as well as support from the WSPA, Zoocheck Canada, the Ontario SPCA, the Canadian Association of Zoos and Aquariums and support from MPPs from all three parties in the Legislature. The Ministers of Community Safety and Correctional Services, both past and present, acknowledge Mr. Zimmer’s great work through Bill 154 as being a significant impetus for the development of Bill 50. So, understandably, expectations are high that this bill will address the roadside zoo problem in Ontario.” As the majority of Ontarian’s had not heard of this Bill, I am curious as to whom exactly WSPA is referring to when making statements about the support of “widespread public support from people across this province”. Statements, such as these are misleading elected officials as it would sound to them that surveys had been done and/or there had been an outcry by the people. The WSPA also agrees with CIWF in regards to the “Five Freedoms” that should be implemented. Again, Mr. Dunlop refers to the Bill and the zoo issue when addressing the representative from WSPA:

Mr. Garfield Dunlop: I know you’ve done a lot of work on this particular bill. I’m happy to see on your first page that you recommend that clause 6(b) be removed. I think we agree with that on this side of the House. It would be interesting to hear the reasons why the government continues to leave that in there. … You were one of the main reasons that Mr. Zimmer put the original private member’s bill through. I have to say, again: That’s the part I find disappointing. When the bill did come forward, it was hailed, and all the media attention was around the bill was around regulation of roadside zoos. I’m going to continue to


say this through these hearings: The word “zoo” is not mentioned in the bill—nowhere. It’s a much more comprehensive bill, and as we go through this, we’re going to hear from a lot of stakeholders who have got a lot of concerns with this bill who weren’t properly consulted at the beginning.

Even the NDP MPP was concerned, in conjunction with Mr. Dunlop as expressed by Ms. Cheri DiNovo: I too, like Mr. Dunlop, found it very unconscionable of the government that zoos are not included in this, and also that section 6 is. So one is very concerned about this bill the way it’s currently worded and worked. Rest assured that certainly, from the New Democratic Party point of view, we’re going to do everything we can to see that zoo animals are protected by this bill and also that section 6 is removed. Throughout the Committee meeting the opposition parties were dealing with a “majority” government, in conjunction with not one but two MPPs, from the ruling government, who had personal mandates. Mr. Zimmer, Chair of the Committee and Mr. Mike Colle. Mr. Colle’s main reason for this Bill was due to his distain for, and refers to, puppy mills. During Committee he states: “I’ve been involved in trying to stop and close down puppy mills for 10 years. Right now, most OSPCA officers cannot enter the properties of these puppy mill breeders because they would be charged with trespassing.” He felt, during the committee meeting and the passing of the OSCPA Act, the agents and inspectors did not need warrants. They did and they still do. And they can still be charged with trespass if the private property owner pursues these avenues. This is covered under the Criminal Code of Canada and Police Services Act, of which the OSPCA agents and officers are granted their power under section 42 (1).32 The question is what does Mr. Colle consider a “puppy mill”? Does that also include kennels or breeding facilities? Mr. Michael O’Sullivan, of the Humane Society of Canada, during his presentation had discussion with Mr. Colle.

“Mr. Michael O’Sullivan: Sorry, if I could interrupt for one second: Right now, there is a writ of mandamus which has been filed against the Quebec government because they’re responsible for the enforcement of the provincial welfare act, and it’s specifically after a puppy mill operator where a former staff member and other concerned citizens brought the evidence to the attention of ANIMA Quebec, which is the government agency, and they simply ignored it. There’s an example. Again, WSPA is another good example. They produced enough information and documentation to get a private member’s bill on zoo regulations. They’re not a law enforcement agency. Mr. Mike Colle: First of all, we do not have that authority right now. That’s why we’re strengthening this legislation. That’s why, right now in Ontario, if I notice that there’s breeding of animals to fight—and they’re being trained to fight all over Ontario and kill each other—whether they be poultry or dogs, there is no authority in any provincial statute right now to stop that. So this bill has the authority, through provincial legislation, to finally put a sanction on that, because right now,


it’s not on any federal—you talk about federal law. Show me in the federal Criminal Code where it’s illegal to do that. Mr. Michael O’Sullivan: Sure; not a problem.”

Mr. O’Sullivan was not allowed to continue to answer Mr. Colle, due to time restraints, but he would be referring to section 445 of the Criminal Code of Canada, when making a statement regarding Mr. Colle’s statement that there was nothing in the Criminal Code stopping these activities. Also, if there is a “law” that is enforceable in Ontario, regarding cruelty to animals, the OSPCA and the police can enforce said law, so Mr. Colle’s statement is an incorrect statement, at the least.

Injuring or endangering other animals 445. (1) Every one commits an offence who, wilfully and without lawful excuse, (a) kills, maims, wounds, poisons or injures dogs, birds or animals that are not cattle and are kept for a lawful purpose; or (b) places poison in such a position that it may easily be consumed by dogs, birds or animals that are not cattle and are kept for a lawful purpose. 445.1 (1) Every one commits an offence who (a) wilfully causes or, being the owner, wilfully permits to be caused unnecessary pain, suffering or injury to an animal or a bird; (b) in any manner encourages, aids or assists at the fighting or baiting of animals or birds; (c) wilfully, without reasonable excuse, administers a poisonous or an injurious drug or substance to a domestic animal or bird or an animal or a bird wild by nature that is kept in captivity or, being the owner of such an animal or a bird, wilfully permits a poisonous or an injurious drug or substance to be administered to it; (d) promotes, arranges, conducts, assists in, receives money for or takes part in any meeting, competition, exhibition, pastime, practice, display or event at or in the course of which captive birds are liberated by hand, trap, contrivance or any other means for the purpose of being shot when they are liberated; or (e) being the owner, occupier or person in charge of any premises, permits the premises or any part thereof to be used for a purpose mentioned in paragraph (d).

And perhaps this is the reason that Newfoundland is repealing their SPCA’s

police powers33, as there isn’t any need for police powers for a separate entity other than the real police.

The exchange between Mr. Colle and Mr. O’Sullivan is very telling as an elected

official should have known, prior to Bill 50, the OSPCA Act, what was inclusive of the Criminal Code of Canada. Due to lack of knowledge this Bill was pushed through without legal oversight by the person/persons striving to legislate the act. Historically this has always been a problem with elected officials when they become overzealous with the creation and implementation of legislation beyond their understanding and/or for personal mandates/ideologies that have nothing to do with the betterment of the province or the people living within the geographical boundaries of the province.


“The mischiefs that have arisen to the public from inconsiderate alterations in our laws, are too obvious to be called in question; and how far they have been owing to the defective education of our senators, is a point well worthy the public attention. The COMMON LAW of England has fared like other venerable34 edifices of antiquity, which rash and inexperienced workmen have ventured to new-dress and refine, with all the rage of modern improvement. Hence, frequently its symmetry has been destroyed, its proportions distorted, and its majestic simplicity exchanged for specious embellishments and fantastic novelties. For, to say the truth, almost all the perplexed questions, almost all the niceties, intricacies, and delays (which have sometimes disgraced the English as well as other courts of justice), owe their original not to the COMMON LAW itself, but to innovations that have been made in it by act of parliament, “over-laden (as Sir Edward Coke expresses it) with provisos and additions, and many times on a sudden penned or corrected by men of none or very little judgment in law.” This great and well experience judge declares, that in all his time he never knew two questions made upon rights merely depending upon the common law; and warmly laments that confusion introduced by ill-judging and unlearned legislators. “But if,” he subjoins, “acts of parliament were after the old fashion penned, by such only as perfectly knew what common law was before the making of any act of parliament concerning that matter, as also how far forth former statutes had provided remedy for former mischiefs and defects, discovered by experience; then should very few questions in law arise, and the learned should not so often and so much perplex their heads to make atonement and peace, by construction of law, between insensible and disagreeing words, sentences, and provisos, as they now do.”35

As an example, in the Municipal Councillor’s Guide, 2010 it states that Municipal

Councillors must know and understand what the legislation that pertains to them, including the Municipal Act, the British North America Act, 1867 and the 1982-83 Charter. They must also know and understand all other statutes and case law that is in effect and/or comes into effect.36 If this is the case shouldn’t our provincially elected officials be obligated to an even greater extent than that of our Municipal officials, or at least to the same extent? According to Sir Edward Coke and Sir William Blackstone they should and yet it would seem they randomly create legislation without a thought as to the impact or legal ramifications.

Mr. O’Sullivan also represented the Burr Foundation, at Committee. Mr. Levac asked a very poignant question of Mr. O’Sullivan and answered honestly:

Mr. Dave Levac: And then, by extension, it’s one of power and money. (meaning the act) Mr. Michael O’Sullivan: In terms of the use of the name, absolutely.

The Committee meeting only gave a few examples of what is so wrong with the OSPCA Act and the debate continued during the final reading of the Bill, and yet all of that information was ignored causing the people of Ontario to be placed in financial bondage and suffering at the hands of ill informed, untrained, legally ignorant inspectors


and agents. We are funding a charity, a corporation that has its main purpose for even “being” after the section in the act that incorporates it.

Society continued, 2. The Ontario Society for the Prevention of Cruelty to Animals, a body politic and corporate incorporated by An Act to Incorporate the Ontario Society for the Prevention of Cruelty to Animals, being chapter 124 of the Statutes of Ontario, 1919, is continued under the name The Ontario Society for the Prevention of Cruelty to Animals in English R.S.O. 1990, c. O.36, s. 2.

With the purpose of incorporation coming after the incorporation the present

legislation detracts from what the corporation’s legislative/regulatory boundaries are to be. The preamble in the original document limits the corporation to the acts of animal cruelty with lesser emphasis on the corporation’s ability to make money. Presently, with section 2 being prior to section 3 (objects), it would seem that the goal, under the guise of a charity or the guise of protection of animals, is for making money. This leads to the present Corporate Structure of the OSPCA.



THE OSPCA ACT, R.S.O. 1990 – CORPORATE STRUCTURE Under section 237 of the Act, the OSPCA was incorporated as a “body politic 38 and corporate39”. Section 2 makes reference to “An Act to Incorporate the Ontario Society for the Prevention of Cruelty to Animals, No. 26 of the Statutes of Ontario, 1919.” This leads to the belief that the original letters of incorporation should be included in the OSPCA Act for clarity and not merely a reference to an act of incorporation as of 1919. Considering that certain statements, from the original letters of incorporation, are quoted, verbatim, in the newer version, R.S.O. 1990. Based on the OSPCA having letters of incorporation, the OSPCA is a third party corporation that hasn’t any right, title or interest in anyone’s property, including someone’s animals, unless warrants are obtained and/or informations are properly, meeting legal requirements, filled out.

As a corporation the OSPCA under section 440 offers shares in the form of membership. There is a class “A” membership, class “B” membership, a class “C” membership, those being honorary members, and each class of “membership” has certain rights and obligations that are specified in the OSPCA corporate by-laws.

Section 541 expresses that there shall be a board of directors and an executive committee that will control and manage the affairs of the corporation as specified by the corporate by-laws. Section 642 involves the corporate officers who will perform certain duties and have certain powers as expressed in the corporate by-laws. Corporate by-laws may be created under section 7 of the Act, but these corporate by-laws must not be contrary to the law, must be voted on and accepted by a majority of members at the annual and/or special meetings. And there is also the Lieutenant Governor (L.G.) that may void any by-law of the corporation, granting the L.G. a form of oversight and authority over this corporation.43

In the original 1919 document under section 344, the society would consist of all

persons who contribute funds according to the law and who have paid a minimum of 2 dollars for the privilege. It also states in section 1 of the 1919 act of incorporation that:

“…and all persons who shall hereafter become members thereof as hereinafter provided, shall be and they are hereby created a body politic and corporate under the name of The Ontario Society for the Prevention of Cruelty to Animals.”

As we have seen, in 2010, being a member is not necessarily something that grants a member the ability to have a form of oversight or control of the board of directors, as in Re: London Humane Society (LHS) decision.


“1. Background Facts LHS is a registered charity organized for the purposes of animal welfare. The

dispute in the case arose concerning the constitution of the membership under the LHS by-law. In 2003, the LHS directors passed a resolution granting automatic membership to anyone who donated $30 or more, as well as granting an automatic renewal to any member who made a donation in the following year of $30. However, the procedure for the admittance of members into LHS had changed throughout its history, as initially, there was no automatic membership, nor was there any automatic right to renewal. Starting in the late 90’s, prospective members were required to fill out an application form. In 2007, the by-law of LHS was amended to grant discretion to the directors concerning the approval of new members. On November 27, 2008, the resolution of the LHS board of directors granting automatic membership for donations of $30 or more was revoked. In September of 2009, the LHS Membership Committee recommended to the board that any member, whether new or renewing, should be required to fill out a membership application, which recommendation the board adopted at their October 1, 2009 meeting.

The court found that because the LHS by-law gave the board the discretion to approve members, an approval process was implied, and therefore an application form was warranted despite their being no requirement for one in the by-law. Since the requirement that new and renewing members in 2010 complete an application form was not a change to the by-law per se, but rather a change of policy, the court found that no notice of that change to LHS members was warranted. Despite finding that no notice was required, the court went on to evaluate the notice LHS provided to its members. The first notice of the application form requirement was contained in the Fall 2009 newsletter for LHS, which was distributed to the LHS membership. The second notice was distributed in early 2010 when LHS sent out their 2009 tax receipts to 800 monthly donors. The court noted that these 800 donors, “constituted less than half the total membership of LHS.”

The court noted that by the time the second notice was sent out, all LHS memberships had expired, as membership in LHS automatically expires on December 31 of each year in accordance with the LHS by-law. However, the membership application form was not available until January 14, 2010 at 5:11p.m. Consequently, in 2009 no one had the ability to renew or apply as a member, since the form was not available until mid-January 2010.

Eventually, 117 applications were received. Of these 117 applications, 109 were approved and 8 were rejected. No reasons were given for the rejection, other than that the rejected applications may have been ideologically opposed to the LHS board of directors...

While the court found in the case at bar that the applicant directors had complied with their statutory and common law duties to the corporation to the detriment of the respondent members, directors of charitable and not-for-profit organizations with large memberships, such as LHS, will need to be aware that the new Canada Not-for-profit Corporations Act, as well as the Ontario Not-for-profit Corporations Act, will provide new remedies to their members, such as the oppression remedy, which could lead to a different result. “45


As noted prior to “Re: London Humane Society”, all donors who have paid the

minimum become members and are part of the corporation under the Federal statute titled: “An Act respecting not-for-profit corporations and certain other corporations”.

“The enactment includes remedies for members and other interested persons to address the conduct of a corporation that is oppressive or unfairly prejudicial to or unfairly disregards the interests of any creditor, director, officer or member.”46

“197. (1) A special resolution of the members — …, of each applicable class or group of members — is required to make any amendment to the articles or the by-laws of a corporation to: (a) change the corporation’s name; (b) change the province in which the corporation’s registered office is situated; (c) add, change or remove any restriction on the activities that the corporation may carry on; (d) create a new class or group of members; (e) change a condition required for being a member; (f) change the designation of any class or group of members or add, change or remove any rights and conditions of any such class or group; (g) divide any class or group of members into two or more classes or groups and fix the rights and conditions of each class or group; (h) add, change or remove a provision respecting the transfer of a membership; (i) subject to section 133, increase or decrease the number of — or the minimum or maximum number of — directors fixed by the articles; (j) change the statement of the purpose of the corporation; (k) change the statement concerning the distribution of property remaining on liquidation after the discharge of any liabilities of the corporation; (l) change the manner of giving notice to members entitled to vote at a meeting of members; (m) change the method of voting by members not in attendance at a meeting of members; or (n) add, change or remove any other provision that is permitted by this Act to be set out in the articles.”

With this case, are the members of the OSPCA informed that their donations and membership fees are being used in frivolous and what could be considered malicious cases against the membership and/or innocent animal owners? Section 8 explains the corporate powers of the OSPCA. They include:

“(a) may acquire and hold as a purchaser, donee, devisee or legatee, or in any other capacity, any interest in real estate; (b) may accept, receive and hold gifts, bequests or subscriptions of personal estate;


(c) may grant, lease, bargain for, mortgage, sell, assign or otherwise dispose of any of its real or personal estate; (d) may erect, construct, equip and maintain such buildings and works as it considers advisable for its purposes; and (e) may do all such other matters and things as it considers advisable for carrying out its object. R.S.O. 1990, c. O.36, s. 8.”

Under section 547 of the 1919 act sections (a), (b) and (d) are basically equivalent to section 8 of the present act and section 5 (c) is equivalent to section 10 of the present act, saving that there is restrictions on the terms “humane society” in the new act. Section 1048 of the OSPCA Act grants the OSPCA the absolute ownership of the term “humane society” and that no other entity is to use this term to describe what they might be doing as a corporation or person. This is an extreme, as what happens if a corporation or person has some form of society that is for the humane treatment of/or specific to only dogs, cats, horses, etc.? Under the purview of this act they are disallowed to use the term “humane society”. Does this mean that this open common term that can be used in a variety of manners, is trademarked by the OSPCA? If so, isn’t there legislation that states you cannot “trademark” common terms? “Generic marks are common words that describe the product itself and can not be protected by trademark laws.”

49And isn’t it under Federal Law50 that trademarks51 are protected? It would seem that this could be deemed beyond the authority of the provincial government to include this in this act, making section 10 ultra vires of the province and the OSPCA? There is an exemption to this under 10 (2) which states if “a corporation or other entity that was an affiliated society on April 3, 2008 may continue to use the name “humane society”, “society for the prevention of cruelty to animals” or “spca”, or the equivalent of any of those names in any other language, alone or in combination with any other word, name, initial or description, even if it is no longer an affiliated society.” This is also expressed in 5 (c) of the 1919 act but the 1919 act does not restrict any “common terms” for the use of the words “humane society”. Section10 is basically creating a monopoly for the OSPCA due to the restrictiveness of a “common term” and of a corporation or entity not being affiliated with the OSCPA. To allow the OSPCA enforcement powers and the ability to take property and to sell property, it could be considered comparable to the Company of Dyers of London, in 1623 which is the reasoning for the Statute of Monopolies52.

There also seems to be a conflict when it comes to how the OSPCA actually funds its operations. The OSPCA could be considered a monopoly and is also considered a “charity”. To raise funds it seeks donations and receives funding/payment for taking possession of animals, fines, boarding, care, food, treatment and some government funding. It supplies veterinary inspectors/agents that work for and with the OSPCA to determine if animals should be taken from owners. And they use media to drive fund raising during so-called high profile raids. This is a complete conflict as they are paying their own wages by taking animals that do not necessarily need any form of


protection. Considering the salaries and consultant fees, that are paid by the OSPCA as noted previously. CEO $215,604 and taxable benefits, CGO $139,151, COO $126,709 and $4.6 Million in ‘professional and consulting fees”.53 For example, as stated in the Citation for R. v. Pauliuk, 2005 ONCJ 119, by Justice Zuraw:

“[27] Since the defence has raised the issue of the neutrality and fair-mindedness of the investigators, it would be appropriate to look at the role of the Ontario S.P.C.A. and its affiliates in cruelty to animal cases and, in particular, this case. The Ontario S.P.C.A. is a privately incorporated company with shareholders. Those shareholders may purchase various classes of shares and vote for a board of directors. Neither the province nor municipality has a right of board membership. That board directs company policy and passes by-laws consistent with its aims. The company is exempt from taxation, permitted to raise funds and to use those funds as it deems fit, presumably as long as it is law abiding. The employees of this company have been granted unusual powers, powers which devolve to the local police agencies only if no local S.P.C.A. exists. Those powers which it holds are pursuant to the Ontario Society for the Prevention of Cruelty to Animals Act, RSO 1990 c.o. 36 as amended. These include the policing powers of investigation, right of entry onto private property without warrant [s. 12(2) of the Act], direct the removal of animals without judicial intervention, billing the owner for their costs, selling animals seized or destroying them. Any appeal lies initially to the Board of Directors of the S.P.C.A. Bearing the foregoing in mind, it would be more than appropriate to have transparent policies and procedures that prohibit bias and conflict, indeed it would appear to be imperative. [28] It is well known that the local affiliate, the Hamilton-Burlington S.P.C.A., has surrendered its animal control programme and its funding to the City of Hamilton and now acts primarily in the field of investigating possible charges, [Criminal Code or Provincial Offences Act], pursuant to the Ontario Society for the Prevention of Cruelty to Animals Act. It hires its own agents and inspectors, determines the parameters of their employment, and using aforementioned police powers, enters property, seizes animals as in this case (without warrant or judicial intervention) and lays charges – all the while attending to its own need to fund raise. In order to do the latter, it relies heavily on the publicity it can glean from high profile seizures and charges. Indeed, there is a communications branch tasked with this. It is a not-for-profit organization and a registered charity. Without publicity and high profile charges, the funds the S.P.C.A. needs to operate would no doubt dry up. [29] It goes without saying that a strong and active enforcement of animal cruelty laws must be maintained. But I would be naïve to suggest that the current set-up could not foster the perception in reasonable, open-minded people, that bias may exist and that conflicts will result. However trite it may be, it is still true that ‘Justice must not only be done, it must be seen to be done’. It is unfortunate, for example, that Dr. Mogavero, a highly qualified and well-respected professional, was placed in the position he was in this case. He directed the operation of the

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Society, he earned money from the Society, he helped fund-raise for the Society, he was concerned for the budgetary needs of the Society, he took part in the investigation, made the decision to seize the horses, made the decision to board and care for the horses, and profited from so doing. [30] In the context of conflicting sworn testimony from witnesses of unblemished character, the addition of this perception to the Crown case is more than troubling. Since the Crown must prove its case beyond a reasonable doubt, a difficult task at the best of times, any issue of perception of bias or conflict strikes at the heart of a Crown’s case. And it does so here. [31] The evidence in this case, taken at its highest for the Crown even without being put through the filter of credibility assessment, does not meet the standard of proof required. The perception of bias that looms over all the Crown evidence of this case is like a stake to the heart – totally damaging the Crown’s ability to prove its case. [32] It would be unreasonable and dangerous to convict on this evidence and I refuse to do so. The charge is dismissed.”

And the above explains the role of veterinary inspectors/agents and how fund raising is done by the OSPCA to finance their operations and there is also the issue of using Clayton Ruby to represent the OSCPA at the Animal Care Review Board hearing involving Jessica Johnson and the “tarter” challenge54. This is the persecution of an ailing retired woman that had a dog with some tartar on its teeth. The OSPCA obtained a warrant, broke in through this woman’s bathroom window to open the front door to other OSPCA agents and Police.

“Allegations of unclean home Lawyer Kurtis Andrews, who is representing Johnson pro bono, said the OSPCA misled a justice of the peace to get a search warrant, claiming the house was full of dog urine and feces. Andrews said the OSPCA's own photographic evidence shows that to be false. "There's a piece of poop on the ground. One piece. When they came in, she had been asleep and one of the dogs had pooped, which I imagine happens to a lot of people who have dogs," said Andrews. Johnson said the case shows the pitfalls of granting police powers to a private charity like the OSPCA.”55


REGULATION AND THE POLICE SERVICES ACT

Since the inception of Bill 50, the OSPCA Act, there have been calls for some form of oversight. It has been expressed in Queen’s Park, time and again, by the opposition, that the presiding government create some form of oversight, to no avail. As an example, a letter sent to Jim Bradley when he was Minister of Community Safety and Correctional Services:

Dear Minister Bradley Residents of Ontario are helpless and so angry at the continued lawlessness,

arrogance, vindictiveness and ignorance exhibited by Ontario Society for the Prevention of Cruelty to Animals’ (OSPCA) inspectors and volunteer agents. Tell me, where do we go for help?

The Ministry of Community Safety and Correctional Services under Minister Bartolucci empowered the OSPCA with extraordinary police powers (Bill 50) which directly violate the Canadian Charter of Rights (warrantless entry in the hands of a self-funded charity - who does that???).

Millions of tax payer dollars have gone to the OSPCA provincially and federally in the form of one time grants. This in addition to the $15 million they collected in donations in 2009. None of that would be an issue except that there’s a COMPLETE AND UTTER LACK OF OVERSIGHT, ACCOUNTABILITY AND TRANSPARENCY. You admit, under current legislation your Ministry is precluded from investigating the OSPCA. How is it that possible?

We can’t go to the Ombudsman for help because the OSPCA although called forth, mandated, empowered and partially funded by the government is “not a governmental agency”. Appeals of orders and/or seizures via the Animal Care Review Board are available only if requested during the first 5 days. After that – nothing. Truthfully, the only vehicle available to farmers and animal owners with a grievance against the OSPCA are the courts which, realistically speaking, are not an option for the common man or woman. We are at the mercy of your Ministry’s legislation and we are begging for your help. We have been begging for help for years.

The law must be changed. The OSPCA has done as it pleases for far too long. Issues of improper governance, spending, euthanasia rates & shelter protocol, abuse of enforcement powers, perjury, lack of transparency, charter violations, conflict of interest, allegations of extortion etc. must be swiftly addressed. We’ve already had one farmer attempt suicide as a direct result of repeated bullying tactics of OSPCA inspectors.

SOMEONE, SOMEHOW, SOMEWHERE must be able to hold this private self-funded police force accountable for their actions. Please amend the OSPCA act to ensure accountability, transparency and governmental oversight of the Ontario Society for the Prevention of Cruelty to Animals. Recently well over 2,000 petitions have been distributed to virtually every MPP in the provincial legislature. We demand that your Ministry review the powers of the OSPCA.

Re-read the province wide Bill 50 Committee hearings in Hansard July 2008. Do not ignore this issue. Too many families live in utter fear of the Ontario SPCA. I


do not believe this is what the government’s intent was in passing the Ontario SPCA Act.56

Jim Bradley expresses that "The government has no authority over the OSPCA under the Act".57, but there is a variety of problems with his statement. There are forms of oversight in the OSPCA Act being section 7. (3), 22 (2)58, the need for warrants, section 159 (2) to (5) and 160 of the Provincial Offenses Act. And OSPCA Inspectors and Agents are considered Peace Officers under section 42 (1)59 of the Police Services Act, regulating that they must follow certain protocol when implementing their authority. This has been hidden from the public or why would the public be demanding “oversight”. Mr. Bradley knows that there is oversight, and yet he has made the statement that “the government has no authority over the OSPCA.” These sections will be discussed farther into the document. Section 1 of the OSPCA Act is the Interpretation section, which is to have definitions for words commonly used throughout the legislation. This list is sadly lacking, as it does not describe, in legal terms, abuse, cruelty, animal cruelty, deprivation, hardship, neglect, privation, proper care, reasonable person, and/or standard of care. It also does not give a concrete definition as to “owner” in the interpretation section, only defining “minor owner, custodian”. Without proper definitions and interpretations there is a large area left open to arbitrary decisions, placing people at risk from overzealous inspectors and agents. In the best interest of the animal owners of Ontario and the reader of this document, the lacking definitions are being provided. Section 1 definitions provided by the act are: “accredited veterinary facility” means a veterinary facility as defined in the

Veterinarians Act that is accredited under that Act; (“établissement vétérinaire agréé”)

“Board” means the Animal Care Review Board; (“Commission”) “business day” means a weekday, excluding a day that is a holiday; (“jour ouvrable”) “distress” means the state of being in need of proper care, water, food or shelter or

being injured, sick or in pain or suffering or being abused or subject to undue or unnecessary hardship, privation or neglect; (“détresse”)

“place” includes a vehicle or vessel; (“lieu”) “prescribed” means prescribed by regulation made under this Act; (“prescrit”) “veterinarian” means a person licensed as a veterinarian by the College of

Veterinarians of Ontario. (“vétérinaire”) 2008, c. 16, s. 1; 2009, c. 33, Sched. 9, s. 9 (1). Minor owner, custodian (2) Where the owner or custodian of an animal is a minor, the owner or custodian for the purposes of this Act is deemed to be the minor’s parents or guardians. 2008, c. 16, s. 1.”

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The above are the only definitions under the interpretation of the act. There is no definition of “building”, “cruelty to animals”, “welfare”, “officer”, “standards of care”, what type of and/or definition of “training”, “prescribed class of animal”, what type of “records” that can be demanded, what is determined in “costs”, etc. Under section 1 of the Act “distress” is defined as:

““distress” means the state of being in need of proper care, water, food or shelter or being injured, sick or in pain or suffering or being abused or subject to undue or unnecessary hardship, privation or neglect”

Legal definitions must be included so that one will fully understands the terminology implicated in this act.

ABUSE - Black’s Law Dictionary, 9th Edition, 2009, p. 10 – 1. A departure from legal or reasonable use; misuse. 2. Physical or mental maltreatment, often resulting in mental, emotional, sexual or physical injury. – Also termed cruel and abusive treatment. Cf. Neglect; Cruelty. CRUELTY - Black’s Law Dictionary, 9th Edition, 2009, p. 434 – The intentional and malicious infliction of mental or physical suffering on a living creature, esp., a human; abusive treatment; outrage. CRUELTY TO ANIMALS – A malicious or criminally negligent act that causes an animal to suffer pain or death. DEPRIVATION - Black’s Law Dictionary, 9th Edition, 2009, p. 507 – 1. An act of taking away <deprivation of property>. 2. A withholding of something <deprivation of food>. 3. The state of being without something; wanting <sleep deprivation>. DISTRESS – Funk & Wagnalls Standard Desk Dictionary, p. 186 – 1. Accute or extreme suffering or its cause; pain; trouble. 2. A state of extreme need: a ship in distress. 3. Law (a) The act of distraining. (b) The goods distrained. –Syn. See Suffering. DISTRESS – Merriam Webster’s On-line Dictionary. 1. a) seizure and detention of the goods of another as pledge or to obtain satisfaction of a claim by the sale of the goods seized b) something that is distrained 2. a) pain or suffering affecting the body, a bodily part, or the mind : TROUBLE <gastric distress> b) a painful situation : MISFORTUNE 3. a state of danger or desperate need <a ship in distress>.60 HARDSHIP - Black’s Law Dictionary, 9th Edition, 2009, p. 784 – Privation; suffering or adversity.

http://www.merriam-webster.com/dictionary/distrained

http://www.merriam-webster.com/dictionary/trouble

http://www.merriam-webster.com/dictionary/misfortune


NEGLECT - Black’s Law Dictionary, 9th Edition, 2009, p. 1132 – 1. The omission of proper attention to a person or thing, whether inadvertent, negligent, or willful; the act or condition of disregarding. 2. The failure to give proper attention, supervision, or necessities, esp., to a child, to such an extent that harm results or is likely to result. PRIVATION - Black’s Law Dictionary, 9th Edition, 2009, p. 1316 – 1. The act of taking away or withdrawing. 2. The condition of being deprived. PROPER CARE- Black’s Law Dictionary, 9th Edition, 2009, p. 240 – See reasonable care. REASONABLE CARE – As a test of liability for negligence, the degree of care that a prudent and competent person engaged in the same line of business or endeavor would exercise under similar circumstances. Also termed due care; ordinary care; adequate care; proper care. See Reasonable Person. REASONABLE PERSON - Black’s Law Dictionary, 9th Edition, 2009, p. 1380. – 1. A hypothetical person used as a legal standard, esp. to determine whether someone acted with negligence; specif., a person who exercises the degree of attention, knowledge, intelligence, and judgment that society requires of its members for the protection of their own and of others’ interests. The reasonable person acts sensibly, does things without serious delay, and takes proper but not excessive precautions. Also termed reasonable man, prudent person, ordinarily prudent person, reasonably prudent person. See reasonable care. “The reasonable man connotes a person whose notions and standards of behaviour and responsibility correspond with those generally obtained among ordinary people in our society at the present time, who seldom allows his emotions to overbear his reason and whose habits are moderate and whose disposition is equable. He is not necessarily the same as the average man – a term which implies an amalgamation of courter-balancing extremes.” R.F.V. Heuston, Salmond of the Law of Torts 56 (17th ed. 1977). STANDARD OF CARE - Black’s Law Dictionary, 9th Edition, 2009, p. 1535 – In the law of negligence, the degree of care that a reasonable person should exercise.

Section 361 of the Act states the “object”62 or legislated perimeters/authority

allowed the OSPCA. Its function is to facilitate and provide for the prevention of cruelty to animals, and protection/relief of animals from cruelty.

“Object, 3. The object of the Society is to facilitate and provide for the prevention of cruelty to animals and their protection and relief therefrom. R.S.O. 1990, c. O.36, s. 3.”

Please note that the Preamble of the original document and the “object” of the present act have the same wording. In regards to the definition of “cruelty to animals”. From Black’s Law Dictionary:



CRUELTY TO ANIMALS – Black’s Law Dictionary, 9th Edition, 2009, p. 434 - A malicious or criminally negligent act that causes an animal to suffer pain or death.

Anything beyond this definition is beyond the authority of the OPSCA, as it

specifically states “the Society is to facilitate and provide for the prevention of cruelty to animals and their protection and relief therefrom.” Anything else would be “ultra vires” of the OSPCA, as a corporation. The OSPCA act doesn’t even define “cruelty to animals”. The closest the act does define any semblance of “cruelty to animals” is distress, and yet “distress” can be caused by non-malicious or non-criminal negligence and/or outside influences beyond the control of the owner/custodian. This concludes that the OSPCA Act does not even define what the definition of their object/objects is/are and without defining the ‘object” should the courts actually acknowledge the act without an interpretation.

Cruelty is defined as malicious and/or criminally negligent. A farmer that follows

accepted farm practices and/or a veterinarian both create a form of distress, so do animal trainers for the CNIB or police. Considering animals are property, they are used for transportation, work, food, clothing, policing, aid and/or companion animals and the majority of the animals in Ontario are not pets63. In regards to kennels, they are considered a form of “special agriculture” 64, therefore are covered under animal husbandry, considering the term kennel isn’t defined in the OSPCA Act but then neither is “puppy mill”. To compare an animal with a bit of tartar on its teeth, that a doggie bone can fix, to someone that is in “distress”, is beyond compunction. After all, animals are property, they are not humans.

Under section 6.1 (1), the corporation may appoint an employee to be the Chief Inspector. 6.1 (2) explains this persons powers and duties, and they include and are prescribed by regulation: establish qualifications, requirements and standards for the various inspectors and agents, appoint the various inspectors and agents, oversee the inspectors and agents and to revoke their appointments. In this person’s capacity of oversight he is to ensure the inspectors and agents perform certain duties. And under subsection 3 the corporation may grant him/her additional powers and duties through means of corporate by-laws.65 As expressed in this section the qualifications, requirements and standards are prescribed by “regulation”.

As expressed in “HER MAJESTY THE QUEEN V. Baker Court of Appeal for

Ontario DATE: 20041012, DOCKET: C41485”, agents and inspectors are “peace officers” as expressed under section 42 (1) of the Police Services Act and this enforcement power is granted to OSPCA agents and inspectors under section 11 of the OSPCA Act.66 If this is the case then why is it that section 11 doesn’t specifically state that the corporate agents and inspectors, under section 42 (1) of the Police Services Act, are granted the same powers as a peace officer? This could be misleading the public into thinking that there isn’t any form of oversight or regulation that the agents/inspectors must adhere to, and yet the agents and inspectors must be covered


under the “regulations’ referred to in the Police Services Act, as Peace Officers as the OSPCA uses the Police Services Act to support their authority in the courts.

Section 11 continues to explains the “powers” of the agents and inspectors, but it does not explain the limitations on these agents and/or inspectors, including the Chief Inspector. Under section 11. (1)67 it says these employees of the OSPCA corporation are allowed to enforce any act or other law68 in force in Ontario pertaining to the cruelty of animals and that they do have police powers to fulfil their enforcement abilities. This is also expressed in section 669 of the 1919 act, which in the training manual, page 3 exclaims that the 1919 act granting “board police powers to the officers.” These policing powers are the same as any other peace officer, in regards to animal cruelty and enforcement of this act, and these “police powers” must obey the law. Under the present act these policing powers also are regulated by the Police Services Act and there can be disciplinary action taken. If not then we have arbitrary law, in Ontario. The main “other law” in force in Ontario is the Criminal Code of Canada70, as it is the standard that must be met and covered. In regards to ‘cruelty to animals” it would be the person inflicting the “cruelty” and not necessarily the “owner/custodian” that is to be charged. Section 11. (2)71 expresses that every agent and inspector affiliated and appointed by the Chief Inspector and the employees of these affiliates, including any reference to an agent or inspector in this act includes the affiliates employees, have the same powers as an OSPCA employee, being police powers under section 42.(1) of the Police Services Act. Subsection (3)72 explains that in any area of Ontario where there is not an OSPCA facility or affiliate, the local police force is to have the same powers as an OSPCA agent/inspector, under the OSPCA Act. As the corporation’s agents and inspectors receive their enforcement powers from the Police Services Act, one might question this statement, considering there are animal cruelty laws in the Criminal Code of Canada, of which any police officer has/have the authority to enforce under that Act or even any other Act for the prevention of cruelty to animals in Ontario, making this section redundant. Section (4)73 expresses that only upon request, does an agent or inspector, under this act have to identify themselves. Whereas a police officer must have his/her badge always showing for identification during the course of their duties when in uniform and not undercover. Section 80 of the Police Services Act, Misconduct, directs one to section 135 which expresses that the Lieutenant Governor (L.G.) may make regulations in regards to pertaining to dress code under section 135. 1774. It would seem that Ontario isn’t the only province with “enforcement” problems with a provincial SPCA. According to a CBC report the province of Newfoundland has revoked the policing powers of the Newfoundland and Labrador SPCA75. When the N.L. SPCA receive a complaint they now must contact the RCMP or a RNC. This only makes sense as cruelty to animals is a “criminal” matter and should be enforced by the appropriate entities, particularly, when there seems to be serious problems with agents


and inspectors overstepping their legal authority and/or ignoring the limitations of that authority. 11. (5)76 explains that no one shall interfere, hinder or obstruct an agent or inspector during the performance of his or her duty, under this act. How is one to know if they are truly an agent or inspector based on section 11. (4)? Section 11. (5) is covered under section 129 of the Criminal Code of Canada. And yet there is section 18077 of the Criminal Code which expresses that everyone who commits a common nuisance by section 180 (2) obstructs the public in the exercise or enjoyment of any right that is common to all the subjects of Her Majesty in Canada. There is also the issue of Criminal Trespass. This may have been the motivation of Chief Inspector Hugh Coghill, in November, 2008 to send an email out to all inspectors and agents of the OSPCA. The email sent from Chief Inspector Coghill78 expressed that over a two week period he had received three different complaints from across Ontario in regards to Agents and Inspectors overstepping their authority. He reminded all Inspectors and agents that:

“We must all RESPECT: people and private property!” and that “It is inappropriate to start an investigation by entering private property to search for an animal that may be in distress, without the consent of the owner. Your invitation to knock does not extend beyond the door of the house/apartment, or a reasonable inquiry.”

This email specifically referred to “Her Majesty the Queen v. R. Reimer, File No: 1036/06”, and complaints that had been received as it would seem the OSPCA had overstepped the law. In the Reimer case the following statements were made by Justice M.P. O'Dea:

“Rebecca Tanti is a regional inspector with the Ontario Society for the Prevention of Cruelty to Animals (Society)…” 79 “If Ms. Tanti had a "right of inquiry", it will exist by operation of the common law. It is not provided for within the Act. The Act does not even authorize her to enter occupied lands to question owners about anonymous calls.80 They also argue that there is no extension of the implied right to knock to outbuildings on rural properties and if the extended right does exist, it must be supported by reasonable grounds to move beyond the dwelling. “81

The question is, after this email and the Reimer case, under section 22 (2) of the

OSPCA Act, wouldn’t a Minister of the Crown have taken action to create the qualifications, requirements and standards through regulation, so that these types of incidents wouldn’t happen in future, protecting the private property and owners of animals from undue costs? And what of the costs to the tax-payers of Ontario, for the Crown Attorney, court costs, Justice costs, etc., utilized during the Reimer case? Perhaps this has more to do with fund raising than it has to do with the protection of animals, as in R. v. Pauliuk, 2005 ONCJ 119, Justice Zuraw82 expresses the bias and perception of conflict, in regards to the OSPCA Act and the corporate structure.


Now there is the present Minister Madeleine Meilleur that stated in an article for

CBC83, October 2012 that the legislature can, in fact, amend the OSPCA Act to introduce even stricter regulations. If this is the case then the Minister does have the authority and ability to regulate this corporation, ergo, the statement that there is no ability for regulation and/or oversight is available to government is a false statement. In other words these Ministers could be conceived as making false statements to the people of Ontario.

In the best interest of all Ontarians and Canadians the Minister should actually

read the OSPCA Act, and if she is a lawyer and has input into the legislation, she should amend this draconian document so that defines “cruelty to animals” as there is already a legal definition available to the Minister and the Attorney General’s office. The act should also be amended so that it is at least applicable in regards to the Constitution.

The British North America Act, 1867, supported Canadian’s rights and freedoms

and some sections of Trudeau’s Charter also supports some Canadian’s rights, although under this “charter” rights can be removed at the stroke of a pen. Section 24 of the Charter which states:

“Enforcement of guaranteed rights and freedoms 24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. Exclusion of evidence bringing administration of justice into disrepute (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

Under section 22 (2) of the OSPCA Act, the Minister may make regulations in regards to qualifications, requirements and standards, and if he/she has the legislative authority to make these regulations, would those regulations be the same as any peace officer under the Police Services Act? And does the Police Services Act also have the ability to review the actions of, not only the Chief Inspector but, all of the inspectors and agents of the OSPCA, considering the Reimer case and the statement “it will exist by operation of the common law84. It is not provided for within the Act. The Act does not even authorize her to enter occupied lands to question owners about anonymous calls.”85 ?

“…Ms. Jennifer Bluhm, Inspector and Manager…’86 Ms. Bluhm in testimony said that their agents are instructed to caution a person if charges are to be laid. They are to firstly, advise the person they may be charged and that they have a right to contact a lawyer, they don't need to make a


statement and that the Society can use any evidence against them. Secondly they are to say that the animal owner should not let anyone influence them…. The plaintiff’s case was that Mr. Musson was too old and infirm to care for his sheep and to understand the implications of a simple surrender document, but his testimony to value without supporting stock yard prices in writing or specific value analysis by a qualified third party was to be accepted.”87

Under the Police Services Act, Section 42, the duties of an officer are:

Duties of police officer 42. (1) The duties of a police officer include,

(a) preserving the peace; (b) preventing crimes and other offences and providing assistance and encouragement to other persons in their prevention; (c) assisting victims of crime; (d) apprehending criminals and other offenders and others who may lawfully be taken into custody; (e) laying charges and participating in prosecutions; (f) executing warrants that are to be executed by police officers and performing related duties; (g) performing the lawful duties that the chief of police assigns; (h) in the case of a municipal police force and in the case of an agreement under section 10 (agreement for provision of police services by O.P.P.), enforcing municipal by-laws; (i) completing the prescribed training. R.S.O. 1990, c. P.15, s. 42 (1); 1997, c. 8, s. 28. Power to act throughout Ontario

(2) A police officer has authority to act as such throughout Ontario. Powers and duties of common law constable

(3) A police officer has the powers and duties ascribed to a constable at

common law. R.S.O. 1990, c. P.15, s. 42 (2, 3).. Criteria for hiring

43. (1) No person shall be appointed as a police officer unless he or she, (a) is a Canadian citizen or a permanent resident of Canada; (b) is at least eighteen years of age; (c) is physically and mentally able to perform the duties of the position, having regard to his or her own safety and the safety of members of the public; (d) is of good moral character and habits; and (e) has successfully completed at least four years of secondary school education or its equivalent. R.S.O. 1990, c. P.15, s. 43 (1). Idem

(2) A candidate for appointment as a police officer shall provide any relevant information or material that is lawfully requested in connection with his or her application. R.S.O. 1990, c. P.15, s. 43 (2).

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Exception (3) This section does not apply to a police officer appointed under the

Interprovincial Policing Act, 2009 or to a candidate for appointment under that Act. 2009, c. 30, s. 47. Probationary period

44. (1) A municipal police officer’s probationary period begins on the day he or she is appointed and ends on the later of, (a) the first anniversary of the day of appointment; (b) the first anniversary of the day the police officer completes an initial period of training at the Ontario Police College. Time for completing initial training

(2) The police officer shall complete the initial period of training within six months of the day of appointment. R.S.O. 1990, c. P.15, s. 44 (1, 2). Termination of employment during probationary period

(3) A board may terminate a police officer’s employment at any time during his or her probationary period but, before doing so, shall give the police officer reasonable information with respect to the reasons for the termination and an opportunity to reply, orally or in writing, as the board may determine. R.S.O. 1990, c. P.15, s. 44 (3); 1997, c. 8, s. 29 (1). Part V does not apply

(3.1) Part V does not apply in the case of the termination of a police officer’s employment under subsection (3). 1997, c. 8, s. 29 (2). Only one probationary period

(4) Subsections (1), (2) and (3) do not apply to a police officer who has completed a probationary period with another municipal police force, the Ontario Provincial Police, the Royal Canadian Mounted Police or a prescribed police force outside Ontario. R.S.O. 1990, c. P.15, s. 44 (4); 1997, c. 8, s. 29 (3). Oaths of office and secrecy

45. (1) A person appointed to be a police officer shall, before entering on the duties of his or her office, take oaths or affirmations of office and secrecy in the prescribed form. R.S.O. 1990, c. P.15, s. 45. Exception

(2) This section does not apply to a police officer appointed under the Interprovincial Policing Act, 2009. 2009, c. 30, s. 48. Political activity

46. No municipal police officer shall engage in political activity, except as the

regulations permit. R.S.O. 1990, c. P.15, s. 46. 88

An officer must have a minimum of 1 year training at the Ontario Police College

and then 1 year probation. An officer also under section 46 must remain non-partisan, so does this include an OSPCA agent/inspector, considering they consider themselves as “animal advocates”? Are OSPCA agents/staff/administration restricted from lobbying government?

As a peace officer, it would seem they need to have the same amount of training and would have to remain non-partisan as well as not be involved with interfering with






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government. There is also the issue as to whether OSPCA agents/inspectors are actually “peace officers” as expressed under the Police Services act that prescribes that “peace officers” must have certain training and they must also have fulfilled the obligation of taking an oath of office and secrecy. The training manual of 2002:


Without taking the oaths of office and secrecy are they able to be “peace officers”

and can they operate as peace officers or are they merely citizens acting like “peace officers”.

R.S., c. C-34, s. 118;1972, c. 13, s. 7. Personating peace officer 130. (1) Everyone commits an offence who (a) falsely represents himself to be a peace officer or a public officer; or


(b) not being a peace officer or public officer, uses a badge or article of uniform or equipment in a manner that is likely to cause persons to believe that he is a peace officer or a public officer, as the case may be.89

Under the Police Services Act, section 3.1 Administration of Act, the Solicitor

General has specific Duties and Powers. The Solicitor General is The Minister of Community Safety and Correctional Services. This minister’s duties under 3.1 of the Police Services Act are:

Duties and powers of Solicitor General

(2) The Solicitor General shall, (a) monitor police forces to ensure that adequate and effective police services are provided at the municipal and provincial levels; (b) monitor boards and police forces to ensure that they comply with prescribed standards of service; (c) Repealed: 1995, c. 4, s. 4 (1). (d) develop and promote programs to enhance professional police practices, standards and training; (e) conduct a system of inspection and review of police forces across Ontario; (f) assist in the co-ordination of police services; (g) consult with and advise boards, community policing advisory committees, municipal chiefs of police, employers of special constables and associations on matters relating to police and police services; (h) develop, maintain and manage programs and statistical records and conduct research studies in respect of police services and related matters; (i) provide to boards, community policing advisory committees and municipal chiefs of police information and advice respecting the management and operation of police forces, techniques in handling special problems and other information calculated to assist; (j) issue directives and guidelines respecting policy matters; (k) develop and promote programs for community-oriented police services; (l) operate the Ontario Police College. R.S.O. 1990, c. P.15, s. 3 (2); 1995, c. 4, s. 4 (1); 1997, c. 8, s. 2 (2, 3). Ontario Police College continued

(3) The police college known as the Ontario Police College for the training of members of police forces is continued. R.S.O. 1990, c. P.15, s. 3 (3).

In conjunction with Section 22 (2) of the OSPCA Act, and the Police Services Act, the Minister has ample authority to correct bad behaviour and has authority to remove overzealous inspectors/agents of the OSPCA, and so has the courts.




Section 11.1 (1)90 of the act states any person who owns or has custody/care of an animal shall comply with the prescribed standards of care. Standards of care are covered under the Criminal Code of Canada and Ontario Society for the Prevention of Cruelty to Animals Act, ONTARIO REGULATION, 60/09, STANDARDS OF CARE. Under this section the standards of care include:

Basic standards of care for all animals 2. (1) Every animal must be provided with adequate and appropriate food and water. (2) Every animal must be provided with adequate and appropriate medical attention. (3) Every animal must be provided with the care necessary for its general welfare. (4) Every animal must be transported in a manner that ensures its physical safety and general welfare. (5) Every animal must be provided with an adequate and appropriate resting and sleeping area. (6) Every animal must be provided with adequate and appropriate, (a) space to enable the animal to move naturally and to exercise; (b) sanitary conditions; (c) ventilation; (d) light, and; (e) protection from the elements, including harmful temperatures. O. Reg. 60/09, s. 2 (6). (7) If an animal is confined to a pen or other enclosed structure or area,

(a) the pen or other enclosed structure or area, and any structures or material in it, must be in a state of good repair;

(b) the pen or other enclosed structure or area, and any surfaces, structures and materials in it, must be made of and contain only materials that are,

(i)safe and non-toxic for the animal, and (ii)of a texture and design that will not bruise, cut or otherwise injure the animal;

and (c) the pen or other enclosed structure or area must not contain one or more other

animals that may pose a danger to the animal. (8) Every animal that is to be killed must be killed by a method that is humane and minimizes the pain and distress to the animal; an animal’s pain and distress are deemed to be minimized if it is killed by a method that produces rapid, irreversible unconsciousness and prompt subsequent death.

The problem with this “basic standard of care” is that it is ultra vires of the OSPCA corporation and/or the provincial legislature to implement and there are exemptions from it. It would seem that Veterinarians are exempt, farm animals, animals used for hunting, zoo animals (as zoos are not mentioned in the act), and yet it would seem that out of all of these exemption farm animals, although stated in subsection 291, are not. Also under the OSCPA Act an activity permitted under the Fish and Wildlife Conservation Act, 1997 in relation to wildlife in the wild and an activity permitted under

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the Fish and Wildlife Conservation Act, 1997 or the Fisheries Act (Canada) in relation to fish are also exempt. There is something questionable about these exemptions, as if there is an exemption for one then there is an exemption for all. The original letters of incorporation from 1919 stated that agents and inspectors of the OSPCA were to be under the supervision of a “veterinary surgeon”, this is a complete reversal of the original document and a removal of oversight. Also, at the time of incorporation, any policing powers subscribed to the Constitution and the agents/inspectors knew and understood the limitation of their authority. With the present legislation that pertains to the OSCPA and with the complete lack of accountability, by the Minister, and the lack of training, in regards to the limitation of an agents/inspectors authority, the agents and inspectors feel they are above the law.

There are horror stories throughout the province of animals being euthanized, without reason and at the instruction of an OSPCA agent/inspector92. There are other horror stories of animals being taken or put down, again at the instruction of an OSPCA agent/inspector and/or Ministry Vets. And these incidents are because now it is the agent/inspector that is, either, making these decisions themselves and/or instructing veterinarians to do it. These horror stories have been presented time and again, in Queen’s Park, to no avail. The Minister is not fulfilling his/her “duties and/or responsibilities”. It would seem that based on that, this legislation is “bad law” and has been enacted in “bad faith” , which could be construed as a “breach of trust.” Under subsection (3)93 is the exemption for veterinarians. This also includes boarding of animals under veterinary care, in veterinary facilities. In conjunction with this subsection there is section 12 (7)94 which states that an accredited veterinary facility is exempt from inspection or entry and that these facilities are exempt from 12 (6). Subsection (6)95 states that if an inspector or agent has reasonable grounds to believe that an animal is in immediate distress, they are to enter. It begs to question, why are veterinary facilities exempt from this? If there are reasonable grounds to believe that an animal is in immediate distress, why wouldn’t the OSPCA be able to enter as they would anywhere else? This is comparable to, if there is the belief that there is a crime being committed in a jail, the police are not to enter or inspect the situation. Under section 15 of the Charter we are all equal in the eyes of the law and we are all to receive equal protection by and from the law, ergo, an exemption for accredited veterinary facilities from this act is a violation of the charter. There is also, again, section 24 of the Charter and of course the Preamble of the British North America Act, 1867, which is part and parcel of our constitution.


Section 11.2 of the act prohibits distress or harm to an animal. It states in subsection (2) that no owner or custodian shall permit an animal to be in distress. Subsection (3) states that no person shall train an animal to fight with another animal or that the no owner of said animal shall allow said animal to fight another animal. Subsection (4) states no person shall possess equipment or structures that can be used to train animals or house animal fights. Subsection (5) states that no person shall cause harm to any animal used by a peace officer, whether the animal is working at the time or not.96 Then there is 11.2 (6) Exception. (6) allows exemptions from 11.2 (2), (3), (4), and (5). So who is exempt from teaching animals to fight, to have structures where fights can be had, equipment to train animals to fight and who is exempt from harming any animal that is used by a peace officer. These exemptions include:

Exception 11.2 (6) Subsections (1) and (2) do not apply in respect of,

(a) an activity permitted under the Fish and Wildlife Conservation Act, 1997 in relation to wildlife in the wild;

(b) an activity permitted under the Fish and Wildlife Conservation Act, 1997 or the Fisheries Act (Canada) in relation to fish;

(c) an activity carried on in accordance with reasonable and generally accepted practices of agricultural animal care, management or husbandry; or

(d) a prescribed class of animals or animals living in prescribed circumstances or conditions, or prescribed activities. 2008, c. 16, s. 8. Same (7) Subsections (1) and (2) do not apply to,

(a) a veterinarian providing veterinary care, or boarding an animal as part of its care, in accordance with the standards of practice established under the Veterinarians Act;

(b) a person acting under the supervision of a veterinarian described in clause (a); or

(c) a person acting under the orders of a veterinarian described in clause (a), but only in respect of what the person does or does not do in following those orders. 2008, c. 16, s. 8.

Again it begs to question, why would someone under the Fish and Wildlife Conservation Act (Ontario Society for the Prevention of Cruelty to Animals Act, ONTARIO REGULATION 62/0997) be exempt, as we have already stated farm practices are being attacked by the OSPCA, so really this point is mute, and there is no explanation as to what prescribed “class of animals or animals living in prescribed circumstances or conditions, or prescribed activities” actually is. If someone under the Fish and Wildlife Conservation Act is exempt are they exempt from training animals to fight, from having equipment to train animals to fight, have structures for those fights? Again there can be no exemptions or the section is void as being absurd. To make something illegal for some under an act and then to make something legal for others under the same act, by exemption, is creating an absurdity, which legally cannot stand98. Fuller, L. L. (1964) The Morality of Law, New Haven, CT, Yale University Press, pp. 33, stated

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“A law which a man cannot obey, nor act according to it, is void and no law: and it is impossible to obey contradictions, or act according to them. “ Vaughan, C.J. in Thomas v. Sorrell, 167799

And to ensure that the full meaning of the above statement is clear Vaughan, C.J. in Thomas v. Sorrell previously stated:

“So the same thing, at the same time, would be both lawful and unlawful, which is impossible. For the same reason, a law making murther (murder), stealing, perjury, trespass, or any the rest of the mala instanc'd in lawful, would be a void law in it self.” Vaughan, C.J. in Thomas v. Sorrell, 1677

In other words, creating a law that permits certain persons to legally do something and yet makes others, not exempt, become criminals is void because it is making something illegal to be made legal. The exemptions are also in conflict with the Criminal Code of Canada, in regards to the law for the protection of “cruelty to animals”.

There must be warrants, property cannot be taken without just cause and under

the Criminal Code of Canada there is criminal trespass. This is an absurd act of granting police powers and undermining the constitution, of which, on the face of it, the OSPCA Act does. Nowhere in the original act, 1919, is there an exemption for any “class” of animal or group. Under section 11.3100 veterinarians are mandated to report any abuse. Firstly, as abuse is not part of the “object” of the OSPCA Act, the act later is demanding that veterinarians violate the object of the OSPCA Act. To fulfil any obligations there must be definite evidence of “cruelty” to an animal and not merely a perceived abuse or neglect as this is ultra vires as abuse is not defined nor is neglect in section 1 of the act.

11.3 of the act is also in conflict with Veterinarians Act, Regulation 1093, Part II, Section 17, subsection 6101, as it is not defined as to what/who veterinarians are to report abuse to. They should report any abuse to police, considering the privacy issues and the criminal code of Canada. According to the original Act 1919, the agents/inspectors of the OSPCA were under the supervision of Veterinary Surgeons. This is a complete reversal of the original mandate removing animal and owner protection. As was the case of the “limping pig”.

Cover - November 2003 Better Farming THE CASE OF THE LIMPING PIG Wendell Palmer's 13-month battle with the Humane Society When humane society officials descended on his farm and a ministry vet ordered his prize boar shot, this former biology teacher and animal care specialist was horrified and furious. His case may be symptomatic of the uneasy and sometimes ugly relations that can exist between humane societies and livestock farmers by DON STONEMAN


When local Humane Society officials looking for animals in distress descended on his 35-acre farm in Niagara Falls last April with a search warrant, Wendell Palmer thought little of it. He assumed he would be able to show their veterinarian around his barn and that would be the end of it. What happened instead haunts Palmer to this day.

Ann Godkin, an Ontario Ministry of Agriculture and Food veterinary scientist who had been engaged by humane societies in Niagara Falls and Welland to look at Palmer's animals, ordered that an 800-pound English Large Black boar, a rare breed, be destroyed immediately, along with a couple of ewes. …

"I started begging for their lives," Palmer told Better Farming. …But they said, 'No, no, it's gotta be now.'" And when Palmer asked if he could call his vet to get a second opinion, he says that Godkin refused, insisting "No, no, I'm the vet. We're not waiting." …

"I lost the battle to save their lives," Palmer says. "I figured it was my duty now to facilitate what they were going to do." The best he could do was to negotiate for the two sheep to go to a slaughterhouse the next day in order to salvage the meat. Unable to save his boar, Palmer waited outside the barn while the police officer attempted to dispatch it with his standard issue .40-calibre handgun.

"After four or five shots and some thrashing around, I went in," says Palmer. "(The boar) was standing there in the corner with a nosebleed. The stupid asses were shooting him through the nose. They had no clue, not a clue where his brain was.

"There was some more shooting and thrashing around and every time he was shot he would run to the other end of the pen and not go down. I said, 'Listen, let me direct the shots here.' Besides, the humane society people and the vet buggered off, just buggered off. And I heard them say, 'No, he's not suffering. He's stunned,' or something like that. Three-quarters of an hour later, when I cut his throat, he was flinching. Something that flinches isn't stunned."

A report Palmer obtained from the Niagara Regional Police Service information and privacy unit, says "attending officer PCA. Knevel fired 17 rounds while attempting to put down the boar." Constable Knevel's incident report, dated Apr. 22, states that "at the request of Godkin and the SPCA along with the approval of the owner, police assisted in putting down the animal by firing several shots from (a) police-issued 40 calibre handgun."

Palmer says it is "absolutely not true" that he gave his approval. " I argued for 15-20 minutes that he didn't need killing; that I wanted to call my veterinarian for a second opinion on his condition."

The incident at Palmer's farm on April 22 is illustrative of broad concerns about how humane societies operate in rural Ontario. In researching this article, Better Farming heard a number of complaints that illustrate the uneasy and sometimes ugly relations between humane societies and livestock farmers. There is also disagreement among veterinarians about how animals should be handled. The vets who work regularly on Palmer's farm, for example, disagree with Godkin's decision to put down the boar and sheep. How an 800-pound pig walks


As for the limping pig, in a cooler moment Palmer says that perhaps the agents "didn't know what they were looking at." Perhaps they didn't realize that the ponderous steps of the boar were simply how an 800-pound pig walks, and not an indication that it was in pain.

Dr. Bob Perry of the Dunnville Veterinary Clinic visited Palmer's farm a few hours after the boar shooting. "The boar appeared to be in reasonable body condition," Perry says. The ewes had "old injuries that had healed out of place. They had difficulty walking but would not be in pain."

A second opinion was warranted, says Dr. Scott Reid, who works at the same clinic as Perry and regularly treats animals on Palmer's farm. A week after the boar shooting, humane society agents presented Palmer with a list of 45 orders to be attended to on the farm regarding the health of animals. One of the 45 "orders" issued to Palmer after the boar shooting says, "The horses/pony must not be housed in pens or pastures/paddocks that have unsafe materials kept in them (e.g. loose wire, building materials, discarded farm equipment, etc.)."

Incensed, Palmer called Reid in. "I didn't find anything wrong" on the farm, Reid says. Moreover, the manner in which the boar was put down bothers him. "I think it was inhumane," Reid says. "Euthanasia is supposed to be about gentle death."

He favours lethal injection over use of a firearm. The blood associated with shooting and cutting arteries is very upsetting for the owner, he says. Furthermore, firearms are risky. "Using a gun in a crowded area with humane society officers and police officers was very dangerous. Someone could have been killed by a ricochet."

Veterinarian Reid says he been to Palmer's farm "many times over the years" to tend these animals. "I know that overall his animals are very well cared for."

Palmer, owner of the boar that was shot, … grew up on a mixed farm in Nova Scotia, graduated from the Nova Scotia Agriculture College in 1961 and in 1963 from the Ontario Agricultural College, animal husbandry option, with a Bachelor of Science, Agriculture. For a year, he worked as a dairy branch field man with the federal Department of Agriculture in Ottawa before turning to teaching. He retired in 1998 after a 34-year career as a high school biology teacher.

Palmer says he used codes of practice for animal care as teaching tools and he worked extensively with the Ontario Farm Animal Council. As assistant head and head of his school's science department, he ran science clubs for many years. For more than a decade, he was chairman of the Animal Care Committee of the Niagara South Board of Education. As well, he worked with the Ontario Farm Animal Council and the Ontario Sheep Marketing Agency on animal care issues.

So what brought Palmer to the attention of the local humane society? On Mar. 21, 2002, Niagara Falls Humane Society agents followed up on a complaint of "running (a) puppy mill in (a) barn," according to a humane society report, and performed a detailed inspection.

There were no puppies on the farm then, and no orders were issued. "I wasn't all that mad at that at that time" Palmer says.


The 45 orders issued on May 2 are still a stress point for Palmer. He says that, as soon as he received them, inspectors came to his farm "nearly every day" to check if he had complied. Palmer says those visits stopped as soon as he filed an appeal with the Animal Care Review Board.

The appeal, scheduled for May 15, never took place. With the agreement of both Palmer and the OSPCA, the hearing was adjourned sine die, a legal term which means that the matter has been postponed indefinitely but can be brought back before the board on seven days notice. The orders issued May 2 still give humane society officials the power to enter his farm at any time but Palmer says he won't let them on the property without a warrant.

… A hearing could still be held. In retrospect, Palmer says delaying the hearing was a mistake. The orders that give the Humane Society authority to visit his farm are still in place. …

"I can't stand not knowing if they are going to pounce on me again," and says he never sleeps through the night. Though Palmer and the affidavit submitted by OSPCA agent Ellis agree that Palmer got angry when the OSPCA agents inquired about lameness in the pig on April 16, Ellis's affidavit is specific about abusive language that Palmer used.

Palmer denies that he used some of those words. "I don't use the 'F' word," he says. He also denies calling OSPCA officers "stupid." School teachers know better than to do that, he says.

The OSPCA officers left. Six days later they returned, a force to be reckoned with, armed with warrant, a veterinarian, a police officer with a gun, and plenty of bullets.”

Considering this story, wouldn’t the veterinarians that were supervising Mr. Palmer’s animals be under the onus of report “abuse”, as there wasn’t any “cruelty”? As Mr. Palmer’s veterinarians didn’t report Mr. Palmer’s activities, there must not have been any abuse/neglect or even cruelty, and as they expressed that the animals shouldn’t have been put down, why is it that Mr. Palmer now lives in fear of the OSPCA? This is merely one case of “abuse of power” and “breach of trust” involved with OSPCA agents/inspectors, the Minister and the Courts for not imposing limits that are available.

By law veterinarians are to report, and perhaps the original letters of incorporation should be reconstituted that the agents/inspectors are back under non-member veterinarian supervision, for the protection of both the animal and the owner of the animal. In this case, it would seem the ministry veterinarians are not properly trained and there may be a “funding bias” involved.

Section 11.4 (1)102 “inspection – places (any building or place) used for animal exhibit, entertainment, boarding, hire or sale”, expresses that OSPCA agents/inspectors may enter, without warrant, any building or place used for animal exhibit, entertainment, boarding, hire or sale to determine if the “standards of care” under section 11.1 are being met.


11.1 (1) Every person who owns or has custody or care of an animal shall comply with the prescribed standards of care with respect to every animal that the person owns or has custody or care of. 2008, c. 16, s. 8.

There is no qualified statement of “standard of care” in section 1 or section 11.1

so how can there firstly, be an inspection, in regards to 11.1 and secondly, there are no legal grounds for an inspection without a warrant. Not to mention that the OSPCA may be looking to diversify into boarding kennels, zoos, etc., creating another revenue flow by shutting down other kennels and boarding facilities.

11.4 (2)103 Dwellings used for animal exhibit, entertainment, boarding, hire or

sale, for inspection purposes there must be consent of the occupier. But again this also requires a warrant if there is no consent.

11.4 (3)104 Accredited veterinary facilities and any building or place that is one of

these facilities, again are exempt from this Act, making this act unconstitutional. And perhaps this is so that Veterinary facilities may, also become “boarding facilities”, which in turn creates a conflict between the Ontario Veterinary Association and the OSPCA. If the OPSCA closes other facilities so that all there is left for “boarding” is the Veterinary facility, then wouldn’t the Veterinary and his/her Association feel some form of obligation to the OSPCA and side with the corporation instead of perhaps siding with the animal owner? These are areas that government and the Minister should be looking at. It would seem to have become an incestuous relationship between Veterinaries and the OSPCA, leaving the OSPCA in charge, which is frightening to say the least.

11.4 (4)105 is regulation as to what times of the day an inspection can be carried

out in a building or place used for animal exhibit, entertainment, boarding, hire or sale. It is to be between the hours of 9 a.m. and 5 p.m. or when the building or place is open to invited clients. This could leave these places for animal exhibit, entertainment, boarding, hire or sale and the owners of said buildings and/or places open to hidden inspections and a form of entrapment as under section 11. (4)106 Identification, an inspector/agent only has to identify themselves upon request of the person/building/place being inspected. And this may also disrupt business when clients of these facilities are watching the OSPCA enter and do an inspection without cause. Human nature would dictate that if one perceived that there was a reason for an inspection there must be some form of cruelty, setting the facility up for the loss of clients. Not to mention this can and is being abused by agents/inspectors and by-law enforcement107.

“Background: Recently emails and newspaper articles have been circulated to Municipal Staff, Council Members and Enforcement agencies from animal activists regarding “puppy mills” within Waterloo County and Perth County. These emails indicate that the enforcement agencies, (either by-law departments and their officers or OSPCA agents), are not properly inspecting the “Amish Mennonite” kennels and are issuing licenses to kennels that are being called “puppy mills”. There are also allegations that dogs being harbored in these kennels are being left



in unsanitary and inhumane conditions. It has been suggested that due to the “Amish way of life”; they are unable to provide these dogs with the basic necessities including electricity, heat and water. Accusations have been made that the officers inspecting these kennels are observing these conditions and not reporting them to the proper authorities or attempting to remove animals that may be in distress….In 2007, the Township of Perth East Regulating and Licensing of Dog Kennels By-law was reviewed and updated in order to curb and deter “puppy mills” in the area. Since then, there have been few incidents of concern, however; the current By-law is being reviewed again with the hopes of set fines being added to the By-law. Township of Perth East, Report to Council, prepared by Grant Schwartzentruber, CBO and Kristen Bickers, Municipal Law Enforcement Officer, Sept. 4, 2012”

By-law and the municipality is accepting third hand newspaper articles created by

“animal activists”, which are attacks on themselves and the residents, within the geographical boundaries of the municipality, to create and to discriminate against a way of life of which they haven’t any proof, that due to lack of electricity, animals are at risk. It would seem this has less to do with animal protection then it has to do with “greasing the squeaky wheel” and revenue flow, as fines and application costs increased. Not to mention they are allowing themselves to be manipulated into attacking facilities that have, in past, been passed by their or other inspections. These “animal activists”, it would seem, are the same people that donate their time to the OSPCA and yet are attacking people for a way of life.

The question By-law and the Council of Perth East should be asking is, “how can

these activists make these statements?” And “are these activists merely doing what they have always done, attack government so that government will over-react?” It would seem, that in this case the “activist” also owns a “kennel” in the area108. Now licenses are being revoked based on hearsay and are being denied on an “animal activists” bias, so where does that leave this Township? Based on the report of municipal staff, it would seem that the township is in violation of the Constitution, because of an unproven attacked on a “way of life”.

There is also the issue of a kennel’s property rights. In Shoppers Drug Mart Inc. v. Ontario (Health and Long-Term Care), 2011 ONCA 830 it states:

“[135] I conclude my analysis of this issue with the following observation: if this restriction on corporate investment can be considered necessarily incidental to the Legislation, then by the same reasoning, and without specific statutory authority, virtually any steps the pharmacies may take to increase profits – such as mechanization, moving to less expensive locations, reducing employee wages, et cetera – could be the proper purview of regulations under the Legislation. In my view, an approach that would give regulators such a wide berth is unsupportable. [136] I therefore agree with the Divisional Court that the Regulations are ultra vires as they interfere with property and commercial rights in a manner not specifically or necessarily authorized by the Legislation.”


After all Ontario Society for the Prevention of Cruelty to Animals Act, Ontario Society for the Prevention of Cruelty to Animals Act, ONTARIO REGULATION 60/09, standards of care is only a regulation and due to section 3 of the OSPCA Act is beyond the authority of the regulators to enact.

Section 11.4 (5)109 powers of inspection state that the inspector/agent may

demand and inspect records that they deem relevant to their inspection. There needs to be a qualification as to what documents or there may be an issue that became apparent with MPAC demanding financial records110 from commercial properties when in fact they did not have the legal right to demand those records. This section is too open to individual interpretation and leaves an owner of a building or place used for animal exhibit, entertainment, boarding, hire or sale, at the mercy of untrained and perhaps illegal demands for information.

Section 11.5 (1)111 expresses that warrants should be used to enter places used

for animal exhibit, entertainment, boarding, hire or sale. This section also brings in all of the following subsections, including “Telewarrants”112, that the warrant must specify the time of execution and expiry of the warrant113. There may, upon application, be an extension of the warrant but only up to 30 days114, and any terms and/or conditions that a justice of the peace or provincial judge considers applicable115. This section also supports that the OSPCA agents and inspectors DO NOT have warrantless entry, or why would this section be included?

Section 12 is for entry, with warrant, into “places” when an animal is in distress. The agent/inspector must convince a justice of the peace or a provincial judge, by/with information, on oath that the agent/inspector has reasonable grounds to believe that an animal is in distress. The warrant may include veterinarians and/or other persons, which is concerning, as the agent/inspector could include anyone as they see fit. This could lead to persons such as “animal activists” being included who’s mandate/beliefs are adverse to the animals owner’s rights and all an agent/inspector has to do is convince a justice of the peace that this specific person has some form of interest. This warrant process, under subsection (2), includes a Telewarrant. Subsection (3) expresses that there must be a time specified but that this time indicated can be at any time of the day or night and that there must be an expiry date on said warrant. Subsection (4) allows for an extension of the warrant up to 30 days, if needed. Subsection (5) expresses that the justice or judge may place conditions on the warrant above what is included in the previous sections. 116


Section 12, subsection (6)117 involves “immediate distress” and that entry by the agent/inspector may be made without warrant. As Chief Inspector Coghill118 expressed in his 2008 email “Bill 50 will include a definition of IMMEDIATE DISTRESS as: "immediate distress" means distress that requires immediate intervention in order to alleviate suffering or to preserve life. In other words, a life threatening situation! None of the above legislation gives us the authority to search fields, forests or farms buildings.” Which is the same meaning as expressed in subsection (8)119 defining “immediate distress”, but in both cases shouldn’t this be defined as some form of “cruelty” instead of “distress” as it places an animal in danger of not being protected based on ambiguous wording? Perhaps the regulators and the OSPCA don’t want the people to understand that distress is not cruelty and that the term distress is abused by the agents and inspectors of the OSPCA. And section 12, subsection (7)120 expresses that accredited veterinary facilities are exempt from 12 (6). Section 12.1 (1) states any inspector/agent or veterinarian who is legally present “may examine any animal there and, upon giving a receipt for it, take a sample of any substance there or take a carcass or sample from a carcass there, for the purposes set out in the provision under which the inspector’s, agent’s or veterinarian’s presence is authorized or the warrant is issued.” Subsection (2) allows the inspector/agent or veterinary to conduct tests on the samples gathered under subsection (1) and when the tests are completed to dispose of the samples/carcass. 121 If this is to be considered as evidence shouldn’t these samples be kept for admission into the courts and for second opinions to be garnered by any accused? Please section 12.1 (6), (7) and (8). Section 12.1 (3)122 states any inspector/agent or veterinarian who is legally present allows the agent/inspector upon finding an animal in distress to give it food, care or treatment if required under provisions of this act. Section 12.1 (4)123 states any inspector/agent who is legally present upon giving a receipt may seize anything that is produced to the inspector/agent or is in plain sight that pertains to this act but only if it can be used as evidence or is something that has or in future be used in the commission of crime that pertains to animal cruelty/distress. Subsection (5)124 explains that the inspector/agent shall present to the justice or judge the samples or carcass collected under (1) or anything seized under (4) and if it is not reasonably possible to produce the items report the seizure to the justice or judge. 12.1 (6)125 a justice of the peace or a judge may direct that anything that had been seized under subsection (5) maybe detained or directed to the care of the person named in the order, direct the things seized to be returned or direct the disposal of the things as set out in the order. Subsection (7)126 expresses that the justice or the peace or a provincial judge may authorize the examination, testing, inspection or reproduction of the things seized which conditions that are reasonable and are directed in the order or he/she thinks are necessary to preserve the things seized.


Section 12.1 (8) is for the application of the Provincial Offenses Act, sections 159 (2) to (5) and section 160 which expresses:

“159 Time limit for detention (2) Nothing shall be detained under an order made under subsection (1) for a period of more than three months after the time of seizure unless, before the expiration of that period,

(a) upon motion, a justice is satisfied that having regard to the nature of the investigation, its further detention for a specified period is warranted and he or she so orders; or

(b) a proceeding is instituted in which the thing detained may be required. R.S.O. 1990, c. P.33, s. 159 (2). Motion for examination and copying (3) Upon the motion of the defendant, prosecutor or person having an interest in a thing detained under subsection (1), a justice may make an order for the examination, testing, inspection or reproduction of any thing detained upon such conditions as are reasonably necessary and directed in the order. R.S.O. 1990, c. P.33, s. 159 (3). Motion for release (4) Upon the motion of a person having an interest in a thing detained under subsection (1), and upon notice to the defendant, the person from whom the thing was seized, the person to whom the search warrant was issued and any other person who has an apparent interest in the thing detained, a justice may make an order for the release of any thing detained to the person from whom the thing was seized where it appears that the thing detained is no longer necessary for the purpose of an investigation or proceeding. R.S.O. 1990, c. P.33, s. 159 (4). Appeal where order by justice of the peace (5) Where an order or refusal to make an order under subsection (3) or (4) is made by a justice of the peace, an appeal lies therefrom in the same manner as an appeal from a conviction in a proceeding commenced by means of a certificate. R.S.O. 1990, c. P.33, s. 159 (5). Claim of privilege 160. (1) Where under a search warrant a person is about to examine or seize a document that is in the possession of a lawyer and a solicitor-client privilege is claimed on behalf of a named client in respect of the document, the person shall, without examining or making copies of the document,

(a) seize the document and place it, together with any other document seized in respect of which the same claim is made on behalf of the same client, in a package and seal and identify the package; and

(b) place the package in the custody of the clerk of the court or, with the consent of the person and the client, in the custody of another person. Opportunity to claim privilege (2) No person shall examine or seize a document that is in the possession of a lawyer without giving him or her a reasonable opportunity to claim the privilege under subsection (1). Examination of documents in custody








(3) A judge may, upon the motion made without notice of the lawyer, by order authorize the lawyer to examine or make a copy of the document in the presence of its custodian or the judge, and the order shall contain such provisions as are necessary to ensure that the document is repackaged and resealed without alteration or damage. Motion to determine privilege (4) Where a document has been seized and placed in custody under subsection (1), the client by or on whose behalf the claim of solicitor-client privilege is made may make a motion to a judge for an order sustaining the privilege and for the return of the document. Limitation (5) A motion under subsection (4) shall be by notice of motion naming a hearing date not later than thirty days after the date on which the document was placed in custody. Attorney General a party (6) The person who seized the document and the Attorney General are parties to a motion under subsection (4) and entitled to at least three days notice thereof. Private hearing and scrutiny by judge (7) A motion under subsection (4) shall be heard in private and, for the purposes of the hearing, the judge may examine the document and, if he or she does so, shall cause it to be resealed. Order (8) The judge may by order,

(a) declare that the solicitor-client privilege exists or does not exist in respect of the document;

(b) direct that the document be delivered up to the appropriate person. Release of document where no motion under subs. (4) (9) Where it appears to a judge upon the motion of the Attorney General or person who seized the document that no motion has been made under subsection (4) within the time limit prescribed by subsection (5), the judge shall order that the document be delivered to the applicant. R.S.O. 1990, c. P.33, s. 160.”127

Sections 159 (2) to (5) and section 160 of the Provincial Offenses Act are criteria that OSPCA agents/inspectors must meet. This is not happening in a number of cases128, leaving people to have animals and documents removed, no inventory taken and presented to the owner, and then under section 14 and 15 the animal is taken and sold129, even prior to any guilt being determined, which is beyond the authority allowed under the Provincial Offenses Act.









Under section 13130 of the act, agents/inspectors, when they have “reasonable grounds for believing that an animal is in distress” may issue “orders” to the owner or custodian of the animal. Subsection (2)131 expresses that the order shall be in writing and have provisions stated on the document must explain that the owner has recourse through sections 17 (1) and (2), referring to the Animal Care Review Board. Subsection (4)132 grants the agent/inspector the authority to specify a time when the needed action of the owner custodian must comply with the order, rectifying the situation. Subsection (5)133 specifies that the recipient of the order must comply and continue to comply with what had been specified in the order. Section 13 is ultra vires of the OSPCA as this is beyond its legislative object under section 3 of the Act. This is beyond the purview of the OSPCA as its object is “to facilitate and provide for the prevention of cruelty to animals and their protection and relief therefrom. R.S.O. 1990, c. O.36, s. 3.” And this has nothing to do with “distress” or “standards of care”. Subsection (6)134 is a very troubling section as it leaves open the avenue for abuse of power. This has been used time and time again to frighten animal owners, as is the case of Wendell Palmer, mentioned previously. For example, when a Police Officer notices a headlight out, in a vehicle, the Officer writes an order expressing that the headlight must be repaired within a specified time. Once this has been completed and the repair inspected, the order is revoked. Subsection (6) allows the OSPCA to continue to harass and intimidate animal owners indefinitely. Even with the implication of subsection (7)135, it is “in the opinion of an inspector or an agent of the Society” that an order is to be revoked. There is no accountability in this section forcing the revocation of orders leaving open the avenue for complete tyranny. It isn’t as if an animal owner/custodian can run and hide or evade this attack by the OSPCA agents/inspectors, it is constantly available to these agents/inspectors to use subsection (6) for future funding avenues, comparable to the Pauliuk case.

Section 14 (1) is the taking, by OSPCA agents/inspectors of animals that are in distress. It states the determining factors of distress in this section include for removal are: providing food to the animal, care or treatment. Subsection (1.1) (a) if a veterinarian has examined the animal and has determined that the animal is in distress. (b) the owner or custodian of the animal cannot be found when the animal is in distress or (c) an order under section 13 hasn’t been complied with136. A closer look at this section raises a number of questions.

(1) (a) expresses that a veterinarian has examined the animal. Is this the

owner’s veterinarian or is it a Ministry veterinarian or even a veterinarian supplied by the OSPCA? As we have noted previously, in this report, the judgment of Ministry veterinarians and OSPCA veterinarian can be biased or incompetent leading to animals being taken or worse destroyed all for want of intimate experience with the animal and/or funding issues.

(1) (b) again as expressed the question being who determines what and if an owner is away or cannot be found, it could be any farm that there is potential distress by the OSPCA making determinations as to whether an animal is truly in distress and in need of food, care or treatment, with or without veterinarian recommendations.


(1) (c) and if the order is being challenged at the Animal Care Review Board,

does an order have to be complied with prior to the hearing? Does the non-compliance of the order, while it is being challenged, determine that the OSPCA corporation has the authority to remove animals, charging the owners exorbitant fees for boarding, food, questionable “treatment” or “care”? And again who determines all of this? Any action under this act, as expressed, should be at the instruction of a minimum of 2 non-partisan/non-affiliated veterinarians accompanied by police for enforcement. There is too much leeway for individual “opinion” by agents/inspectors that may or may not be looking at the situation as a potential “funding” opportunity.

Under subsection 14 (1.1) a justice of the peace or a provincial judge may create

an order authorizing the OSPCA to keep the animal under its care because (a) the owner has been charged under the this act or any act in force in Ontario, pertaining to cruelty to animals (please note that it is “pertaining to cruelty to animals”) or (b) the justice or judge has information, on oath, that the animal will be harmed if returned to the owner or custodian.137 14 (1.2)138 is where the fees are charged for food, care and/or treatment, but this does not include the costs of wages of the agents and inspectors. It has been shown that the agents and inspectors are charging for their time when they haven’t the legal authority to do so. The OSPCA is to be a non-profit charity and in as much this corporation should not be charging for inspections, wages of the agents/inspectors, etc., as is the history of this charity. It would seem that due to “Sunshine List”139 there has been a change in the mandate of the OSPCA from the care of animals to the payment of wages and advancement of careers140.

Section 14 (1.3)141 expresses that the Society or the owner/custodian of the

animals may apply to a justice of the peace or provincial judge to vary an order made under section 1.2. Subsection (1.4) (1.1)142 states that the animal may be returned by an order from a justice of the peace or a provincial judge, after application by the Society or the owner/custodian. In the case of (1.4) (2)143 an agent or an inspector of the corporation may destroy the animal with the consent of the owner or if a veterinarian has examined the animal and determines that the animal should be put down. A veterinarian should be a veterinarian that the owner has chosen and not an OPSCA/ministry veterinarian as in the case of the “limping pig”.

Subsections (3)144 and (4)145 pertain to an inspector or agent who has removed

or destroyed an animal under orders issued under section (1) or (2) must serve written notice of their action to the owner/custodian and this notice must include information pertaining to section 17 (1) under the “caption” of the Animal Review Board. Section 17 (1)146 gives the owner/custodian 5 days to appeal this notice to the chair of the ACRB.

Section 15. (1)147 are for the recovery of costs to the OSPCA for the care and

treatment of animals against the owner/custodian. There is specific criteria that must be met prior to any presentation of an order of payment. This criteria is: Order re costs ( see 15. (1))


14 (1.2) Where a justice of the peace or provincial judge makes an order under subsection (1.1), he or she may also order that the whole or any part of the cost to the Society of providing food, care or treatment to the animal pursuant to its removal under subsection (1) and pursuant to the order under subsection (1.1) be paid by the owner or custodian of the animal to the Society. 2008, c. 16, s. 11 (1). Same 14 (1.3) The Society or owner or custodian of the animal may at any time apply to a justice of the peace or provincial judge to vary an order made under subsection (1.2) and the justice of the peace or provincial judge may make such order as he or she considers appropriate. 2008, c. 16, s. 11 (1). or Powers of Board 17 (6) After a hearing or, with the consent of the Society and the person who issued the notice under subsection (1) or (2), without a hearing, the Board may,

(a)respecting an order made under subsection 13 (1), confirm, revoke or modify the order appealed against;

(b)respecting the removal of an animal under subsection 14 (1), order that the animal be returned to the owner or custodian and may make an order in the same terms as an order may be made under subsection 13 (1);

(c)order that the whole or any part of the cost to the owner or custodian of an animal of complying with an order made under subsection 13 (1) be paid by the Society to the owner or custodian; or

(d)order that the whole or any part of the cost to the Society of providing food, care or treatment to an animal pursuant to its removal under subsection 14 (1) be paid by the owner or custodian of the animal to the Society. R.S.O. 1990, c. O.36, s. 17 (6); 2008, c. 16, s. 15 (4, 5).

Under subsection 15 (2)148, if the owner refuses or cannot pay the account ordered under the previous section, then the animals may be sold or disposed of to reimburse the OSPCA for care, food or treatment supplied…this does not include the wages of the agents or inspectors as the legislation does not specify this criteria. Any money that is recouped by the OSPCA during the sale of the animals after payment of the care, food and treatment of the animal shall be held in a trust for the owner/custodian. Any overage should automatically be forwarded to the owner/custodian as it is their property that was sold, ergo it is their money and should be remitted to said owner/custodian immediately. It is not to languish away in some trust set up by the corporation. Under section 15.1149 if an animal has been abandon or is a stray, the OSPCA or one of its affiliates may take ownership of an animal. This is also the case in regards to the corporation taking an animal and the owner/custodian cannot be found, the OSPCA automatically becomes the owner of said animal. It says that this must be within a “prescribed period of time”, and yet there is no time determined in this section.

http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90o36_f.htm#s14s1p2




Animal Care Review Board

“However trite it may be, it is still true that ‘Justice must not only be done, it must be seen to be done’.”150

Section 16151 pertains to the Animal Care Review Board (ACRB). The composition of board hearing an appeal shall consist of: a panel consisting of one or more members of the Board, as assigned by the chair or vice-chair of the Board. 2001, c. 9, Sched. M, s. 1. How possibly can any form of justice or even something that is to be “seen to be done” as justice when the panel hearing an appeal can part of the board of the OSPCA or appointed/assigned by the chair or vice-chair of the board through the Lieutenant Governor, as it would be the OSPCA board that can make recommendation as to who shall sit on the ACRB. Not to mention that this appeals board receives payment for being on the board at the instruction of the L.G., but who actually pays the members of the Board? Below please see amendment that was carried in the Government Efficiency Bill (Bill 57)152 as of June 29, 2001. Is it not for the courts to decide instead of a bias unprepared board that has very little if any legal background and it would seem does not understand the law or even the OSPCA Act153?


Take for example the Jessica Johnson case. In a report by Chloe Fedio, Ottawa Citizen September 26, 2012 there are a number of concerns, including that the “chair of the Animal Care Review Board who is presiding over the hearing repeatedly said on Wednesday that she “didn’t understand” the legalese being presented to her and asked lawyers on both sides of the argument to clarify the procedure…“I’m trying to be as fair as I can, given these complex rules,” Legault told the lawyers in a small conference room at the Marriott Hotel. “Most of the hearings that we hear are much less formal.”… and yet Jessica’s lawyer is stating “It illustrates the absurdity of the law,” he said….He is challenging Johnson’s charge on the grounds that the search warrant was


granted on hearsay. The argument Wednesday centres on Andrews’ request to cross-examine an OSPCA officer to reveal the “hearsay chain,” which he said began as an anonymous voice mail in at the Gananoque SPCA. It was “fourth-hand information” by the time an OSPCA agent relayed it to the Justice of the Peace who granted the search warrant. Andrews argued that the agent “failed to be full and frank” about the source of the information.” 154

These aren’t arguments that should be heard at or by a “panel”. These are court proceedings and should be heard in a real court and not by someone that could be part of the corporation or appointed by recommendations of the corporation through the Lieutenant Governor. This is comparable to the Star Chamber of 1641155, (for the benefit of the reader the Abolition of the Star Chamber Act is included at the end). And where does the OSPCA determine that they can use anonymous complaints. Its right in their training manual order No. 027 provided below.


Considering this is a complete violation of a justice of the peace or provincial judge, it would seem, that the OSPCA have again gone beyond what is legal in their search to justify their funding. This might explain “Gerald Chan, argued that the standard to obtain a search warrant can’t be so high that “we sacrifice animals at the alter of procedure.” And he went on to say “There’s “danger in revealing the informant’s identity,” he said, because “you can’t control where the cross examination goes.”156 This is his statements supporting 4th hand information for dog tartar. Again, this is not


something that a simple panel without a solid legal background can rule on or justice is not done and there can be no perception of justice even being “seen to be done.” The ACRB might also be considered an avenue for the OSPCA to financially attack a person. When a person appeals to the animal review board they generally need to have legal representation. Understanding that the ACRB is made up of, either members of the OSPCA board or recommended/appointed/assigned by said corporate board, one must realize that these rulings may be biased, therefore the accused must then appeal to the Superior Count of Ontario157, from this board. Again this person will need to have legal representation for the next layer of court. Financially this would destroy even the most affluent of people, so where is the justice? Also under section 18, appeals, which is referred to in the previous paragraph, one only has 15 days to apply for an appeal and under subsection (4) this is considered an entirely new hearing. Why is it that the orders, charges, etc., of the OSPCA go to the ACRB instead of divisional court? Wouldn’t having these proceedings go directly to a real court, at least for a ruling, that would have less appearance of being partisan/biased for and on behalf of the OSPCA? Or perhaps this might allow for the real wheels of justice to turn, instead of “panels” where the persons sitting on the “panel” are recommended by or members of corporate boards that are paid by or on behalf of the OSPCA. Miscellaneous Matters Section 19158 exempts agents, inspectors, veterinaries and the board of any “personal liability” for anything they do under this or purported to be done under this act. It states that whatever is done is considered to be in good faith. Question. If the agents and inspectors are considered to be peace officers are they not as liable as any peace officer or police officer to know and understand the limitations of their authority and are they not required to uphold the law and/or follow regulations prescribed in the Police Services Act? Are they also not to have the Police Services Act pertain to them, particularly the disciplinary measures, even though the agents and inspectors of the OSPCA stress that they have police powers? Section 20159 of the act expresses that any order, notice or statement of account required or authorized under this act is to be served either by personal delivery, registered mail, courier, fax, electronic mail (email) or any other prescribed method in accordance with regulation. Any order, notice or statement could be considered “official documents” and without a signature of receipt, this could leave, either or all of, the OSCPA, the Courts and the owner/custodian of the animal in jeopardy of fraud as documents may or may not be delivered, or may not reach the intended.


Everyone has had an email go into their “junk file”, everyone has, at some point, had a piece of mail not delivered, and then there is a case of someone stating they “delivered” something when the item was left in a desk so to ensure notice is given there must some form of receipt/signature that the intended recipient receive any “order, notice or statement of account.” Section 21160 regards conflicts with the OSPCA Act and Municipal by-laws. It states that if there is a conflict between regulations under this act and a municipal by-law, whichever affords the greatest protection to and for the animal is the document that prevails. This is an absurd statement as this is beyond the purview and/or authority of the OSPCA and/or the legislators. The OSPCA is limited to the “prevention of cruelty to animals”, as expressed in section 3 of this act, and municipalities cannot implement municipal by-laws on private property161, as in poop and scoop on “public property”. Regulations by the Lieutenant Governor and Minister Section 22 (1) states that the Lieutenant Governor (L.G.) may make regulations for prescribing activities regarding agricultural animal care, management and husbandry162 for sections 11.1 (2) and 11.2 (6) (c)163.

Standards of care for animals 11.1 (1) Every person who owns or has custody or care of an animal shall comply with the prescribed standards of care with respect to every animal that the person owns or has custody or care of. 2008, c. 16, s. 8. Exception (2) Subsection (1) does not apply in respect of,

(a) an activity carried on in accordance with reasonable and generally accepted practices of agricultural animal care, management or husbandry; or

(b) a prescribed class of animals or animals living in prescribed circumstances or conditions, or prescribed activities. 2008, c. 16, s. 8. Prohibitions re distress, harm to an animal Causing distress 11.2 (1) No person shall cause an animal to be in distress. 2008, c. 16, s. 8. Exception 11.2 (6) Subsections (1) and (2) do not apply in respect of, (c) an activity carried on in accordance with reasonable and generally accepted practices of agricultural animal care, management or husbandry;

I find this curious as under Section 95 of the British North America Act, 1867, our Constitution it states:

Agriculture and Immigration Concurrent Powers of Legislation respecting Agriculture, etc. 95. In each Province the Legislature may make Laws in relation to Agriculture in the Province, and to Immigration into the Province; and it is hereby declared that the Parliament of Canada may from Time to Time make Laws in relation to





http://laws.justice.gc.ca/fr/const/3.html#codese:95

http://laws.justice.gc.ca/fr/const/3.html#codese:95


Agriculture in all or any of the Provinces, and to Immigration into all or any of the Provinces; and any Law of the Legislature of a Province relative to Agriculture or to Immigration shall have effect in and for the Province as long and as far only as it is not repugnant to any Act of the Parliament of Canada.164

If it is a case as to which level of government that prescribe “regulation” in regards to animals and farm practices, that lies with the Federal government of which are already reviewing animal care prescribed for “farm practices”. For the L.G. to make regulation prescribing terms of care for agricultural animal care, and/or animal husbandry, would there not need to be a “constitutional amendment”? Section 22. (1) (b) expresses that the L.G. may make regulation prescribing classes of animals, circumstances and or conditions/activities for the purposes of sections 11.1 (2) (b) and 11.2 (6) (d)165.

Standards of care for animals

11.1 (1) Every person who owns or has custody or care of an animal shall comply with the prescribed standards of care with respect to every animal that the person owns or has custody or care of. 2008, c. 16, s. 8. Exception (2) Subsection (1) does not apply in respect of,

(b) a prescribed class of animals or animals living in prescribed circumstances or conditions, or prescribed activities. 2008, c. 16, s. 8. Prohibitions re distress, harm to an animal Causing distress 11.2 (1) No person shall cause an animal to be in distress. 2008, c. 16, s. 8. Exception 11.2 (6) Subsections (1) and (2) do not apply in respect of,

(d) a prescribed class of animals or animals living in prescribed circumstances or conditions, or prescribed activities. 2008, c. 16, s. 8.

It is beyond the purview of the L.G. to make regulations under this act as this act is restrained by the objects of the OSPCA. There is also the Criminal Code of Canada of which the L.G. must adhere to in regards to specific “classes” of animals, and it would only be for the “animals” that belonged to the province and not the private property of the private animal owner that the L.G. could make regulation in regards to. Section 22. (1) (c)166 states that the L.G. may make regulation exempting certain persons from this act. If there is an exemption for one class of persons there is an exemption for all. This statement opens a huge issue of constitutional rights, not merely under the Charter, but also under the Constitution, grounded in the British North America Act, 1867. Charter of Rights and Freedoms






15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. 26. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada. 31. Nothing in this Charter extends the legislative powers of any body or authority. 32. (1) This Charter applies (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. 52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. 53. (2) Every enactment, except the Canada Act 1982, that refers to an enactment referred to in the schedule by the name in Column I thereof is hereby amended by substituting for that name the corresponding name in Column III thereof, and any British North America Act not referred to in the schedule may be cited as the Constitution Act followed by the year and number, if any, of its enactment. The Preamble of the British North America Act, 1867

ANNO TRICESIMO

VICTORIAE REGINAE. CAP. III.

An Act for the Union of Canada, Nova Scotia, and New Brunswick, and the Government thereof; and for Purposes connected therewith

[29 Marsh 1867] Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution167 similar in Principle to that of the United Kingdom;

The Constitution168 referred to in the Preamble is a combination of the Great Charter known as Magna Carta 1215-1297169, the Forest Charters 1217-1297, the Common Law, the Petition of Right (1623), the Statute of Monopolies (1623), the Star Chamber Act (1641), the Statute of Fraud (1677), the Bill of Rights170, the Nullum Tempus Act (1769), Habeas Corpus, etc. The aforementioned documents are the foundation of Canada’s parliamentary and judicial systems and place restrictions on the Crown, the legislators, the parliamentarians and the courts. Based on this constitutional foundation to deny these documents and to disregard their support of basic absolute rights171 of the people, is also to disregard the individual person, the Crown, the Parliament, the Legislatures, and the Courts172.


According to his book, Paul Romney expressed that “One doctrine declared that British subjects, on settling in the king’s dominions overseas, carried with them certain fundamental rights. These were part and parcel of the ancient common law of England, as declared in statutes ranging from Magna Carta in the early thirteenth century to the Bill of Rights...”173 Any legislator, parliamentarian, judge, lawyer or civil servant that denies these documents denies their very existence and their own individual rights174. They also deny their oaths, their letters patent and their station. This, particularly pertains the Crown, the elected officials and the judiciary.

It has been expressed that the Magna Carta is only an historical document and doesn’t stand in law or the courts any longer. Again it has been used in a number of modern cases after the 1982-83 Constitution/Charter was implemented. 175Under the Preamble of the BNA all Canadians have their absolute rights protected by, but not limited to, the Common Law176, Magna Carta 1215-1297, the Forest Charters 1217-1297, the Petition of Right, 1628, the Statute of Monopolies, 1623, the Abolation of the Star Chamber, 1641, the Statute of Fraud, 1677177, the Bill of Rights, 1689178, the Nullum Tempus Act (60 years possession from the Crown179), 1769, Habeas Corpus, etc., 180 and the Preamble is used by the Courts, it would seem, for the support of Judge’s positions, the Courts, the Parliamentarians,181 etc. Based on this constitutional foundation to deny these documents and to disregard their support of basic absolute rights is also to disregard the “person”, the Crown182, the Parliaments, the Legislatures, and the Courts.

The Preamble didn’t grant Canadians any new rights, the same goes for the Magna Carta183, but it did establish that we did and do have all of those inherent inalienable rights, again established under Common Law. The Supreme Court cannot decide that one position or right is supported and another not, as this would put the Court in disrepute, based on it supporting arbitrary law.184

Section 22. (2) expresses that the Minister, that being the Minister of Community

Safety and Correctional Services (Public Safety), is the Minister that oversees the OSPCA. As expressed previously the Minister has always stated that there is nothing in the OSPCA Act that gives them any control over this corporation and yet section 22. (2) grants the Minister the administration of this act as well as the authority to make regulations in regards to (a)185 the powers and duties of the Chief Inspector of the corporation, any qualifications requirements and/or standards for inspectors and agents, to appoint agents/inspectors and generally to oversee the inspectors and agents and the performance of their duties. So to say that the Minister doesn’t have any control under this act might seem to be an erroneous statement.

Section 22. (2) (b)186 states that the Minister may, like the L.G., create and/or

prescribe stands of care pertaining to section 11.1.

Prohibitions re distress, harm to an animal Causing distress 11.2 (1) No person shall cause an animal to be in distress. 2008, c. 16, s. 8.



Permitting distress (2) No owner or custodian of an animal shall permit the animal to be in distress. 2008, c. 16, s. 8. Training, permitting animals to fight (3) No person shall train an animal to fight with another animal or permit an animal that the person owns or has custody or care of to fight another animal. 2008, c. 16, s. 8. Owning animal fighting equipment, structures (4) No person shall own or have possession of equipment or structures that are used in animal fights or in training animals to fight. 2008, c. 16, s. 8. Harming law enforcement animals (5) No person shall harm or cause harm to a dog, horse or other animal that works with peace officers in the execution of their duties, whether or not the animal is working at the time of the harm. 2008, c. 16, s. 8.

This was covered under 22. (1) Section 22. (2) (c)187 states that the Minister may make regulation in regards to the mandatory reporting by veterinarians of any reasonable signs of abuse or neglect to the OSPCA. Shouldn’t this be placed in the Veterinarians Act. Regulation 1093 section 17. (1) 6. iv. States that a veterinarian may only divulge information when it appears an animal has been abused. It’s doesn’t explain to whom they are to report this abuse, and considering the OSPCA is merely a corporation, shouldn’t a veterinarian not contact the police to have the abuser charged under the Criminal Code of Canada, as the veterinarian may be violating his/her practice of standards/professional misconduct?

PART II PRACTICE STANDARDS 17. (1) For the purposes of the Act, professional misconduct includes the following: 6. Revealing information concerning a client, an animal or any professional service performed for an animal, to any person other than the client or another member treating the animal except,

i.with the consent of the client, ii.when required to do so by law, iii.to prevent, or contribute information for the treatment of, a disease or physical

injury of a person, iv.when it appears that the animal has been abused, or v.for the purpose of identifying, locating or notifying the apparent owner of the

animal, protecting the rights of the apparent owner or enforcing applicable laws in respect of the animal, where it appears that the animal is not owned by the person presenting it for treatment.188






Section 22. (2) (d), (e) and (f)189 involve the Minster making regulations in regards to the forms and type of information needed for warrants under sections 11.5 (1), 12. (1), 14 (1.1) or (1.4) as well as telewarrants under 11.5 (1.1) and 12 (2) and period of time under 15.1. Section 22. (2) (g)190 states that the Minister may make regulation in regards to section 20191, the service of orders, notices and statements of account. This was covered previously.


CONCLUSION In comparison to the historical document of 1919 really there haven’t been too many changes to the OSPCA Act of incorporation and/or the authority of the agents and inspectors. The original act granted them “police powers”, it allowed the agents/inspectors to implement any law in the province regarding cruelty to animals, it was a charity and both include the “object” of the corporation as the “prevention of cruelty to animals”. What is different about the modernization of the act is that the new act does not place the inspectors/agents under the supervision of veterinarians, and it would seem that these roles are now reversed. The new act, instead of following the prescribed “object” of the act, is making reference to a variety of topics that may be confused with what the true meaning of the act and the corporation was/is established for. “Distress”192 as defined in the act can be caused by a multitude of situations that have nothing to do with “cruelty” to animals. There is no definition of “proper care” which is open to a number of interpretations, the same can be said in regards to “undue or unnecessary hardship, privation or neglect”. Enacting such “all encompassing” statements leaves infinite avenues for abuse and/or misuse/misunderstanding of the true intent of the act. The implementation of a standard of care is also beyond the purview of the act and in some instances these standards are unattainable by the animal owner, leaving the owners subject to charges of which there is no defence. Following the Criminal Code and having OSPCA agents/inspectors under the supervision of veterinarians, in the past, seems to have supported the true “object” of the corporation, the prevention of cruelty to animals. The statement of ‘warrantless entry’ has been found not to allow ‘warrantless entry’ as expressed in a number of cases. We have found in the Reimer case that “The Act does not even authorize her (OSPCA agent/inspector) to enter occupied lands to question owners about anonymous calls.” In regards to how the OSPCA is funded we have found that their methods are questionable due to this funding formula and that justice must not only be done but it must be seen to be done193, leaving again many questions regarding the care of animals and the treatment of owners. According to Carl Noble, prior to the OSPCA Act, Bill 50, being enacted, the OSPCA was an organization that was respected and admired for their treatment of animals and owners alike. It truly was a charitable organization that supported animal owners when they needed help and truly protected animals that were being treated cruelly. It would seem, from court rulings and the outcry for oversight that OSPCA has lost its true mandate. With the current legislation various persons are in jeopardy, including the farming community, the private animal/pet owners, the anglers and hunters, pet store owners, zoo operators, circus’, rodeos, slaughter houses, stock yards, owners of aid animals, etc., due to its corporate mandate of merely raising funds in any manner possible.


Veterinarians are in a state of conflict as their governing act expresses that if they follow the OSPCA Act, they may be violating their own act. Veterinarians, under the OSPCA Act must report any signs of abuse to the OSPCA. This is covered under section 11.3 of the act and yet it is in conflict with Veterinarians Act, Regulation 1093, Part II, Section 17 (Professional Misconduct), subsection 6194, as it is not defined as to what/who veterinarians are to report abuse to in the Veterinarians Act. To protect themselves should they not report any abuse/cruelty to police, considering the privacy issues and the criminal code of Canada and the question as to whether OPSCA agents/inspectors are really “peace officers”? Based on the training that is received by agents/inspectors and requirements created by chief inspectors the reversal of roles between veterinarians and agents/inspectors could be another reason for misuse of the act. OSPCA agents and inspectors are not veterinarians and are not competently able to fulfil any medical inspections and may not understand the intricacies of “farm practices”, or “animal husbandry”, and have very limited ability to determine what exactly constitutes “distress”, “abuse” or true “animal cruelty”. That being said, if this corporation is to continue, within the geographical boundaries of Ontario, it must be under the animal owner’s veterinarian’s supervision. If charges need to be laid, perhaps the Newfoundland example should be considered: the removal of police/investigative powers, allowing the OSPCA to be animal shelters for the benefit of the animals. This would eliminate the need for costly administration, consulting and legal fees during investigation/prosecution. The Animal Care Review Board needs to be removed. Under the present legislation the Animal Care Review Board is open to any and all forms of criticism, based on how the board is formed, who sits on the board, and how the board members generally have very little legal background and/or background in “cruelty to animals”. The Jessica Johnson case is a prime example, lasting 6 days over an issue of whether there was tartar on Jessica’s dog’s teeth and whether her dog was in “distress”. “Any appeal lies initially with the board of directors of the SPCA.” Can Vet J. 2006 November; 47(11): 1065–1072. PMCID: PMC1624913, The veterinary profession’s role in policing animal welfare Terry L. Whiting, Sean C. Brennan, and Gustave C. Wruck, p. 2. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1624913/ It would seem that, the Minister does have avenues under the OSPCA Act, Police Services Act, the Constitution, etc., to implement oversight. The OSPCA agents and inspectors are peace officers through section 11 of the OSPCA Act. That being said, if the agents and inspectors expect to obtain “peace officer” status, they also must subscribe to the regulations prescribed in the Police Services Act in regards to how they, as agents and inspectors, operate under the law, including taking oaths of office and secrecy. They also must subscribe to the Provincial Offenses Act as expressed in the OSPCA Act, regarding evidence and procedure.

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http://www.ncbi.nlm.nih.gov/sites/entrez?cmd=search&db=PubMed&term=%20Wruck%20GC%5Bauth%5D

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1624913/


The OSPCA Act allows agents and inspectors, that have minimal training, to investigate, issue orders, and charge owners without proper instruction and/or proper insight into what is legal and/or their legal authority195. It would seem that police in general are asked to accompany agents and inspectors, to keep the peace and as protection for the OSPCA agents. This places police officers in a precarious position as under the Charter, section 15 “Every individual is equal before and under the law and has the right to the equal protection of the law without discrimination” , and if the animal owner asks the police, as police officers, to remove the OSPCA agents/inspectors, that do not have legal warrants, for trespass and/or demand that the police officer charge the agents/inspectors for trespass and that officer doesn’t, is he/she not in derelict of his/her duties196 as a police officer? Could he/she not be penalized under the Police Services Act for not protecting the animal owner from trespass and/or assault? So the question begs, do we actually need the OSPCA for investigation and inspection? Should Ontario look into the Newfoundland legislation or should there be an agreement entered into between local police forces, OPP, RCMP, By-Law enforcement and a local veterinary clinic? After all, By-law inspectors are in the municipalities and were, at one time, the dog catchers, they are “peace officers”, they are available, they have no conflict for funding and in conjunction with local police/OPP/RCMP could readily enforce protection, in regards to animal cruelty. Or could Ontario go the route of Manitoba, as it seems, they have one of the best systems involving 2 veterinarian and police for enforcement. Perhaps this is the most important recommendation made. Revoke the OSPCA Act, as it stands, allow the corporation to continue with shelter protection and have police implement prevention of cruelty legislation as prescribed under the Criminal Code of Canada.


http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1624913/ Can Vet J. 2006 November; 47(11): 1065–1072. PMCID: PMC1624913, The veterinary profession’s role in policing animal welfare Terry L. Whiting, Sean C. Brennan, and Gustave C. Wruck Author information ► Copyright and License information ► Go to:

Problem definition

The veterinary profession in North America is undecided on what participatory role it has to play in the evolution of the position of animals in society. On one hand, the Canadian and American veterinary associations have sponsored animal welfare committees and adopted an advocacy role (1,2); on the other hand, individual practitioners continue to equivocate over when and how they should report suspected incidents of animal abuse, animal neglect, or both to the appropriate authority (3–5). This paper discusses the proposal that, as human values relating to animals change, the veterinary profession should assume primacy in the regulatory authority in policing statutes assuring animal welfare.

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Background

In democratic societies, laws reflect the broader societal attitudes, which, in essence, parliament and legislatures represent. Current laws to protect animals from suffering are of 2 types: 1) laws where affirmative acts of infliction of suffering are prohibited (prohibition of cruel treatment of animals); and 2) laws that impose an affirmative action; for example, requiring a person to provide a certain level of care for animals. Imposing an affirmative act has always been considered more burdensome and difficult to enforce than prohibiting an action (6).

Law, an articulation of the will of the populace, cannot be expressed without administrative machinery. Bureaucracy generally establishes the relationship between a legally constituted and legitimate authority and its subordinate officials. Police have





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http://www.ncbi.nlm.nih.gov/pubmed/16048017





emerged as pivotal in law enforcement in complex societies. Democratic principle requires the police to be professional, competent, and accountable, as they serve the interests of society. Enforcement requires identifying an offence when it occurs, identifying the offender, and bringing the matter before the judicial system in a way that follows the rules of natural justice. Evaluation of a situation involving animals is complex (7) and demands on police services across many jurisdictions have escalated without a significant increase in base funding, resulting in decreased resources for, inter alia, animal welfare enforcement (8). Public policing in democratic countries is accountable to every citizen through the mechanism of representative government and budget constraints. If law enforcement powers are totally divested to a self-funded or special interest group in the extreme application of private policing, there is a risk of vigilantism and encroachment on civil rights in a free democratic society.

Animal protection law made major strides in the mid 1800s in Britain and North America. In early animal protection legislation, the primary societal attitude was concern regarding the moral state of the human actor, rather than the suffering incurred by the animal, and was an expression of what came to be known as a new Victorian ethic. This focus on human behavior, even more specifically on the malicious intent of human behavior, placed early animal protection laws within criminal codes, where in Canada they remain to this day.

Criminal law is meaningful if it functions to inform the conduct of individuals. However, enforcement of emerging social standards in Victorian times was problematic, as the setting of standards and informing the public of these standards was a new function of government. Previous to this era, policing largely focused on property protection and had not generally been identified as contributing to the public good.

Public policing, where police services are provided by the state and funded from tax revenue, is a relatively recent development in democracies. The first public police department in New York City was established in the 1840s (6). In the 1867 amendments to the New York State Penal Law, one of the earliest significant animal protection laws in North America, the American Society for the Prevention of Cruelty to Animals (ASPCA) was given police powers. This delegation of state criminal authority to a private organization was a unique and extraordinary approach (6). Private policing of animal welfare statutes has, however, become a popular model in North America for animal welfare enforcement in the context of nonfederal regulatory offences.

An example of private policing is given by the legislation enabling the Ontario Society for the Protection of Cruelty to Animals (SPCA), which was critically reviewed recently in an Ontario court of justice decision (9). The Ontario SPCA is a privately incorporated company, with shareholders as a not-for-profit organization, and a registered charity. Shareholders may purchase various classes of shares and vote for a board of directors. Neither the province nor any municipality has a right of board membership. The board directs company policy and passes by-laws consistent with its aims. The company is exempt from taxation and is permitted to raise funds and use them as it deems fit. The Ontario SPCA hires its own agents and inspectors and determines the parameters of their employment. The employees of this company have been granted unusual powers,







which devolve to the local police agencies only if no local SPCA exists. Those powers include the policing powers of investigation, the right of entry onto private property without a warrant, directing the removal of animals without judicial intervention, billing the owner for costs incurred, and selling or destroying animals seized. Any appeal lies initially with the board of directors of the SPCA. In a publicly funded enforcement model, such as that in place in Manitoba, animal protection officers have similar powers; however, appeal of actions of officers are made directly to an elected official, the Minister of Agriculture.

The police powers of the Ontario SPCA are executed by the organization, all the while attending to its own need to raise funds. In order to do the latter, the Society relies heavily on the publicity it can glean from high profile seizures and prosecutions. A communications branch is tasked with fund raising, in part, by maximizing the public visibility of enforcement activities. In reviewing this organizational arrangement, the Honorable Justice Zuraw J wrote, “Without publicity and high profile charges, the funds the S.P.C.A. needs to operate would no doubt dry up” (9).

Police powers, such as investigation, detention, arrest, and the gathering and sharing of personal information, require fundamental restraint and accountability in a democratic society based on the rule of law and respect for human rights.

The privatization of police

Since the 1960s, financially constrained, public-funded police services have responded with varying levels of privatization. Privatization of police services involves transfer of powers and questions of who pays for the service and who delivers it. There are 3 primary models for government to share the costs of law enforcement: user fees, contracting out, and load shedding.

In user fee structures, governments can produce services and charge individuals user fees proportionally to their use of the services. In the private security industry in Canada, agents of companies, whose services are available for a fee, are given certain police powers that are subject to subsequent individual records review by uniformed services, such as the Royal Canadian Mounted Police (RCMP). In veterinary medicine, the live animal export certification service of the Canadian Food Inspection Agency is, in part, a fee for service regulatory program.

Privatization by contracting out is where the government collects the funds, usually tax base, but hires the provider of the services in the marketplace, for example, airport security.

The most complete form of privatization, referred to as “load shedding,” is where both the funding mechanism and the service delivery are shifted to the private sector (10). The establishment of the American SPCA in New York in the 1800s was an example of load shedding where, by design, enforcement of animal welfare inspection and prosecution was funded by the fines received from successful prosecution. In application, high visibility prosecutions acted more to recruit voluntary donations, which became the basis for financial support of the organization (6).





Load shedding is seen to be appropriate in some aspects of property protection, as in private guards at shopping centers and uniformed police services at special occasions, like concerts. In the enforcement of criminal or quasi-criminal legislation, load shedding has some serious potential problems in assuring safety, equity, human rights protection, and accountability. The best documented moral hazard associated with load shedding is in the administration of the forfeiture of proceeds of drug trafficking in the United States (11). The law enforcement agenda in the drug war has shifted to target assets and not crime. For example, it is more profitable for enforcement agencies to delay intervention until drugs are sold illegally and then to seize the cash, which is retained by the agencies, than to seize the contraband, which must be destroyed (12).

Policing relies on visibility to deter criminality. If there is no risk of inspection, detection, and prosecution, the most stringent animal welfare statute is meaningless. Clearly inspections and investigation of complaints must be funded. If an animal welfare enforcement system is self-funded through court ordered settlements, serious equity problems may develop in that animals of low financial value may be ignored, where proceeds of seizure will not offset the enforcement action cost. If an animal welfare enforcement system is self-funded through public donations, there develops a motivation for high visibility publication of enforcement proceedings, with or without conviction, with the aim of collecting voluntary donations, at the risk of infringing on the civil rights of the accused. This potential abuse may in itself be a violation of other legal protections. If governments are the sole funding agent of policing services, the soft services are at continual risk of fluctuating government priorities and defunding pressures.

Making animals the most statutorily protected type of property

In the USA, the federal government has been identified as having limited potential for addressing animal welfare concerns due to constitutional limitations (13). In smaller countries, such as New Zealand, animal welfare concerns have been reflected successfully in national policy and law (14,15). In Canada, severe mistreatment of animals falls under the Criminal Code, which is enforced by the uniformed police services, while, in most provinces, appropriate animal care legislation is enforced by nonprofit organizations. The humane killing and the humane transport of food animals, multi-province issues, are regulated by the national veterinary authority.

International law

Currently there are no conventions binding countries to an equivalent level of protection of animal welfare. Recent activities of international organizations suggest that the national veterinary authorities will have increasing responsibilities in animal welfare assurance. The Office international des épizooties (the OIE) has been recognized by the World Trade Organization since 1994 as the international organization for animal health. Due to the essential relationship between animal health and animal welfare, the representatives of its 164 member countries asked the OIE to take the lead role in developing international animal welfare standards.







The director general of the OIE convened an ad hoc group in April 2002, bringing together the best experts in the field from a diverse range of backgrounds and cultures. The International Committee of the OIE unanimously adopted the recommendations of the ad hoc group on animal welfare during its 70th General Session (May 2002). A permanent working group on animal welfare with the same membership as the ad hoc group was then established, which held its first meeting in October 2002. The initial international OIE “Global Conference on Animal Welfare” held in Paris, February 22–25, 2004, by invitation only, attracted more than 450 participants from 70 countries (16). Animal welfare has the potential to become an issue of international trade concern in the future.

The Animal Care Act (Manitoba) administration

In Manitoba, The Animal Care Act (17) was proclaimed in 1996, with regulations in place by 1998 (18). In contrast to the Criminal Code, which primarily focuses on defining, identifying, and punishing acts of severe neglect, ill treatment, and cruelty, the philosophy of The Animal Care Act more closely resembles the New Zealand national statute by requiring a “duty of care” towards animals under human control. Under the Canadian constitutional division of powers, provinces can not declare a human action to be a crime. However, under a provincial statute, the acts or omissions of neglect, ill treatment, and intentional infliction of suffering are still prohibited and punishable; the duty of care covers a much broader spectrum of human behavior towards animals. The provincial statute promotes a proactive and preventative agenda, while the federal Criminal Code is rooted in identification of offenders and punishment. The Animal Care Act has also incorporated the Codes of Practice, such as the Canadian Kennel Club Code (19). As codes are updated, the current standards for animal care have the force of law in Manitoba.

Implementing a new animal care act in Manitoba provided the opportunity to develop a responsible, financially efficient, and respectful and just policing structure.

Authority

Overall enforcement of The Animal Care Act and policing authority was retained with the provincial Minister of Agriculture. Prosecutions were referred to a specialized unit within the Department of Justice for animal welfare enforcement. Animal protection officers (APOs) are appointed by the minister; they are “peace officers” (20) for the purpose of the administration of The Animal Care Act and have additional administrative powers of inspection, seizure, and disposition, as described in the Act and Regulations. In addition all uniformed police officers, whether employed by federal or municipal forces, also have APO powers to administer the Act.

Administration and infrastructure, including a centralized reporting desk, are housed within the office of the chief veterinarian, who has assigned a veterinarian as the primary program administrator. Animal protection officers have been appointed, as recommended by the administrator, subsequent to completion of a training course and an evaluation. As of January 2006, 14 permanent employees of the province working in the inspection services of the Chief Veterinary Officer have been appointed as APOs.







Additional APOs include 28 private veterinary practitioners located across the province, 4 municipality-employed by-law enforcement officers, and 4 officers in the employ of the Winnipeg Humane Society. General police services in rural Manitoba are provided by municipal and provincial contracts with the RCMP and local municipal police forces. Local uniformed police often initiate animal welfare inspection or support investigations, depending on individual situations.

Funding

Funding for the cost of inspection and enforcement is a mix of public and private. Self-employed rural veterinarians provide services at about 40% of the hourly rate established by the Veterinary Services Commission for on-farm or in-clinic work, but contract payment includes all time spent in discharge of the case. Other costs, such as vehicle mileage and meals, are reimbursed at the provincial rate. Privately employed individuals appointed as APOs, such as municipal by-law officers, uniformed police, and Winnipeg Humane Society employees, provide inspections as part of their employment duties and do not recover costs from the Minister of Agriculture. Advanced investigations are time consuming and are usually led by APOs who are full-time provincial veterinarians.

Private funding of APOs comes with the risk of politicizing the functions of policing; however, it provides for some very attractive benefits. For example, in urban areas, it has been our experience that local car dealerships will provide new marked vehicles annually to APOs, in exchange for modest identification on the vehicles for the purposes of advertising. The ability to allow community participation in animal welfare issues may be regarded as positive in a culture of community policing.

Evaluation

Evaluation of the performance of police and enforcement services is very difficult. From the perspective of enforcement officers and prosecutors currently administering the Act, the general performance of the statute and administration is satisfactory. To date, no major prosecution that has been initiated has failed to receive a conviction, with fines ranging up to $37 000 on multiple charges and with prohibition of animal ownership for up to 5 y; the maximum allowable on first offence has been awarded when requested at sentencing.

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Conclusion

The veterinary profession is linked with animal welfare protection in the eye of the public. In a recent survey of 400 Manitoba residents, the top 3 places where citizens would report animal abuse or neglect were the local veterinarian (42%), local humane society (38%), and uniformed police (24%) (21).

Globally, as reflected in recent OIE efforts, animal welfare is being increasingly recognized as a regulatory function of veterinary authorities. However, national veterinary authorities have limited ability to provide local animal welfare policing.




Significant public pressure is building in Canada for a more modernized legislation and enforcement of the public’s concerns for animal welfare. The Manitoba experience supports a paradigm where subnational veterinary authorities take a lead in establishing legislation and working out responsible and efficient local enforcement operations. Credibility of the authority administering police functions is critical for success. In Manitoba, this credibility is provided by the Chief Veterinary Officer, and political commitment is identified by committed crown prosecutors. Without this essential support in place, improving the inspection and enforcement of well-articulated statutes will not occur.

Private funding of policing activities poses challenges to credibility and maintenance of a just and transparent enforcement process. Animal welfare policing services should be provided as a professional public service and not linked with self-funding initiatives. Veterinary colleges providing curricula in regulatory veterinary medicine should include the enforcement of animal welfare statutes as an emerging area of the practice of veterinary medicine.

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References

1. Canadian Veterinary Medical Association. Animal Welfare position statement — Animal Abuse [monograph on the internet]. Available from: http://canadianveterinarians.net/ShowText.aspx?ResourceID=110 Last accessed 18/07/2006. 2. American Veterinary Medical Association. Position statements: Animal Abuse and Animal Neglect [monograph on the internet]. Available from: http://www.avma.org/issues/policy/animal_welfare/abuse.asp Last accessed 18/07/2006. 3. Jack DC. “Good Samaritans”: A legislative solution for mandatory reporting of suspected animal abuse” Can Vet J. 2005;46:539–540. [PMC free article] [PubMed] 4. Stolt LB, Johnson-Ifearulundu YJ, Kaneene JB. Attitudes of veterinarians, animal control directors, and county prosecutors in Michigan regarding enforcement of state animal cruelty legislation. J Am Vet Med Assoc. 1997;211:1521–1523. [PubMed] 5. Landau RE. A survey of teaching and implementation: The veterinarian’s role in recognizing and reporting abuse. J Am Vet Med Assoc. 1999;215:328–331. [PubMed] 6. Favre D, Tsang V. The development of anti-cruelty laws during the 1800’s. Detroit Coll Law Rev. 1993;1:1–35. 7. Daniell C. Veterinarians and SPCAs: An essential partnership. Can Vet J. 2002;43:188–190. [PMC free article] [PubMed] 8. Reiss AJ. Police organization in the twentieth century. Crime Justice. 1992;15:51–97. 9. Zuraw J. R. v. Pauliuk Ontario Court of Justice, 2005 ONCJ 119. [monograph on the Internet] Available from: http://www.canlii.org/on/cas/oncj/2005/2005oncj119.html Last accessed 18/07/2006. 10. Fixler PE, Poole RW., Jr Can police services be privatized? Ann Am Acad Politic Soc Sci. 1988;498:108–118.


http://canadianveterinarians.net/ShowText.aspx?ResourceID=110

http://www.avma.org/issues/policy/animal_welfare/abuse.asp







http://www.canlii.org/on/cas/oncj/2005/2005oncj119.html


11. Prejean AJ. Ethics and self-funding police budgets: The Louisiana drug asset forfeiture law. Global Virtue Ethics Rev 1999 Vol 1, No. 3. Available from: http://www.spaef.com/GVER_PUB/ Last accessed 28/04/2006. 12. Blumenson E, Nilsen ES. “Policing for Profit: The Drug War’s Hidden Economic Agenda”. Suffolk University Law School. Suffolk University Law School Faculty Publications. 1998, Paper 4. [monograph on the internet] available from http://lsr.nellco.org/suffolk/fp/papers/4/ Last accessed 14/06/2006. 13. Favre D. Integrating animal interests into our legal system. Anim Law. 2004;10:87–94. 14. Stafford KJ, Mellor DJ, Gregory NG. Advances in animal welfare in New Zealand. N Z Vet J. 2002;50(3 Suppl):17–21. [PubMed] 15. Government of New Zealand. Animal Welfare Act 1999 No 142 Amended 2001 No 52, 2002 No 53. Available from http://www.legislation.govt.nz/browse_vw.asp?content-set=pal_statutes Last accessed 14/06/2006. 16. OIE 2004. Office International des Epizooties. Global Conference on Animal Welfare: The OIE confirms its role as a coordinator of guidelines on animal welfare world wide [monograph on the internet]. Available from http://www.oie.int/eng/press/en_040225.htm Last accessed 14/06/2006. 17. The Animal Care Act C.C.S.M. c. A84, Queens Printer, Statutory Publications Office, 200 Vaughan Street, Winnipeg, Manitoba, R3C 1T5. 18. The Animal Care Regulation, M.R. 126/98, Queens Printer, Statutory Publications Office, 200 Vaughan Street, Winnipeg, Manitoba, R3C 1T5. 19. Anonymous. A Code of Practice for Canadian Kennel Operations. 1994 [monograph on the internet] Publication of Canadian Veterinary Medical Association, Available from http://canadianveterinarians.net/publications-resources-order.aspx Last accessed 30/06/06. 20. The Interpretation Act, C.C.S.M. c. I80, Queens Printer, Statutory Publications Office, 200 Vaughan Street, Winnipeg, Manitoba, R3C 1T5. 21. Enns A. MVMA Public Awareness and Attitude Survey, Final Report, Enrg Research Group, Manitoba Veterinary Medical Association, 2006, 27 pp.

http://www.spaef.com/GVER_PUB/

http://lsr.nellco.org/suffolk/fp/papers/4/


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http://www.legislation.govt.nz/browse_vw.asp?content-set=pal_statutes

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GLOSSARY ABUSE - Black’s Law Dictionary, 9th Edition, 2009, p. 10 – 1. A departure from legal or reasonable use; misuse. 2. Physical or mental maltreatment, often resulting in mental, emotional, sexual or physical injury. – Also termed cruel and abusive treatment. Cf. Neglect; Cruelty. CRUELTY - Black’s Law Dictionary, 9th Edition, 2009, p. 434 – The intentional and malicious infliction of mental or physical suffering on a living creature, esp., a human; abusive treatment; outrage. CRUELTY TO ANIMALS – A malicious or criminally negligent act that causes an animal to suffer pain or death. DEPRIVATION - Black’s Law Dictionary, 9th Edition, 2009, p. 507 – 1. An act of taking away <deprivation of property>. 2. A withholding of something <deprivation of food>. 3. The state of being without something; wanting <sleep deprivation>.

DISTRESS – Funk & Wagnalls Standard Desk Dictionary, p. 186 – 1. Accute or extreme suffering or its cause; pain; trouble. 2. A state of extreme need: a ship in distress. 3. Law (a) The act of distraining. (b) The goods distrained. –Syn. See Suffering. Under section 1 of the Act “distress” is defined as:

““DISTRESS” means the state of being in need of proper care, water, food or shelter or being injured, sick or in pain or suffering or being abused or subject to undue or unnecessary hardship, privation or neglect”

"IMMEDIATE DISTRESS" means distress that requires immediate intervention in order to alleviate suffering or to preserve life. In other words, a life threatening situation! None of the above legislation gives us the authority to search fields, forests or farms buildings. Hugh Coghill, Chief Inspector, Ontario Society for the Prevention of Cruelty to Animals, 2008 HARDSHIP - Black’s Law Dictionary, 9th Edition, 2009, p. 784 – Privation; suffering or adversity.


NEGLECT - Black’s Law Dictionary, 9th Edition, 2009, p. 1132 – 1. The omission of proper attention to a person or thing, whether inadvertent, negligent, or willful; the act or condition of disregarding. 2. The failure to give proper attention, supervision, or necessities, esp., to a child, to such an extent that harm results or is likely to result. Cf. ABUSE PRIVATION - Black’s Law Dictionary, 9th Edition, 2009, p. 1316 – 1. The act of taking away or withdrawing. 2. The condition of being deprived. PROPER CARE- Black’s Law Dictionary, 9th Edition, 2009, p. 240 – See reasonable care. REASONABLE CARE – As a test of liability for negligence, the degree of care that a prudent and competent person engaged in the same line of business or endeavor would exercise under similar circumstances. Also termed due care; ordinary care; adequate care; proper care. See Reasonable Person. REASONABLE PERSON - Black’s Law Dictionary, 9th Edition, 2009, p. 1380. – 1. A hypothetical person used as a legal standard, esp. to determine whether someone acted with negligence; specif., a person who exercises the degree of attention, knowledge, intelligence, and judgment that society requires of its members for the protection of their own and of others’ interests. The reasonable person acts sensibly, does things without serious delay, and takes proper but not excessive precautions. Also termed reasonable man, prudent person, ordinarily prudent person, reasonably prudent person. See reasonable care. “The reasonable man connotes a person whose notions and standards of behaviour and responsibility correspond with those generally obtained among ordinary people in our society at the present time, who seldom allows his emotions to overbear his reason and whose habits are moderate and whose disposition is equable. He is not necessarily the same as the average man – a term which implies an amalgamation of courter-balancing extremes.” R.F.V. Heuston, Salmond of the Law of Torts 56 (17th ed. 1977). STANDARD OF CARE - Black’s Law Dictionary, 9th Edition, 2009, p. 1535 – In the law of negligence, the degree of care that a reasonable person should exercise.


CRIMINAL CODE OF CANADA: Cattle and Other Animals, Injuring or endangering cattle 444. (1) Every one commits an offence who willfully: (a) kills, maims, wounds, poisons or injures cattle; or (b) places poison in such a position that it may easily be consumed by cattle. Injuring or endangering other animals 445. (1) Every one commits an offence who, wilfully and without lawful excuse, (a) kills, maims, wounds, poisons or injures dogs, birds or animals that are not cattle and are kept for a lawful purpose; or (b) places poison in such a position that it may easily be consumed by dogs, birds or animals that are not cattle and are kept for a lawful purpose. Cruelty to Animals Causing unnecessary suffering 445.1 (1) Every one commits an offence who (a) wilfully causes or, being the owner, wilfully permits to be caused unnecessary pain, suffering or injury to an animal or a bird; (b) in any manner encourages, aids or assists at the fighting or baiting of animals or birds; (c) wilfully, without reasonable excuse, administers a poisonous or an injurious drug or substance to a domestic animal or bird or an animal or a bird wild by nature that is kept in captivity or, being the owner of such an animal or a bird, wilfully permits a poisonous or an injurious drug or substance to be administered to it; (d) promotes, arranges, conducts, assists in, receives money for or takes part in any meeting, competition, exhibition, pastime, practice, display or event at or in the course of which captive birds are liberated by hand, trap, contrivance or any other means for the purpose of being shot when they are liberated; or (e) being the owner, occupier or person in charge of any premises, permits the premises or any part thereof to be used for a purpose mentioned in paragraph (d). (3) For the purposes of proceedings under paragraph (1)(a), evidence that a person failed to exercise reasonable care or supervision of an animal or a bird thereby causing it pain, suffering or injury is, in the absence of any evidence to the contrary, proof that the pain, suffering or injury was caused or was permitted to be caused wilfully, as the case may be.


Presence at baiting as evidence (4) For the purpose of proceedings under paragraph (1)(b), evidence that an accused was present at the fighting or baiting of animals or birds is, in the absence of any evidence to the contrary, proof that he or she encouraged, aided or assisted at the fighting or baiting. Causing damage or injury 446. (1) Every one commits an offence who (a) by wilful neglect causes damage or injury to animals or birds while they are being driven or conveyed; or (b) being the owner or the person having the custody or control of a domestic animal or a bird or an animal or a bird wild by nature that is in captivity, abandons it in distress or wilfully neglects or fails to provide suitable and adequate food, water, shelter and care for it. Failure to exercise reasonable care as evidence (3) For the purposes of proceedings under paragraph (1)(a), evidence that a person failed to exercise reasonable care or supervision of an animal or a bird thereby causing it damage or injury is, in the absence of any evidence to the contrary, proof that the damage or injury was caused by wilful neglect. R.S., 1985, c. C-46, s. 446;2008, c. 12, s. 1. Keeping cockpit 447. (1) Every one commits an offence who builds, makes, maintains or keeps a cockpit on premises that he or she owns or occupies, or allows a cockpit to be built, made, maintained or kept on such premises. Confiscation (3) A peace officer who finds cocks in a cockpit or on premises where a cockpit is located shall seize them and take them before a justice who shall order them to be destroyed. R.S., 1985, c. C-46, s. 447;2008, c. 12, s. 1. Order of prohibition or restitution 447.1 (1) The court may, in addition to any other sentence that it may impose under subsection 444(2), 445(2), 445.1(2), 446(2) or 447(2), (a) make an order prohibiting the accused from owning, having the custody or control of or residing in the same premises as an animal or a bird during any period that the court considers appropriate but, in the case of a second or subsequent offence, for a minimum of five years; and (b) on application of the Attorney General or on its own motion, order that the accused pay to a person or an organization that has taken care of an animal or a bird as a result of the commission of the offence the reasonable costs that the person or organization incurred in respect of the animal or bird, if the costs are readily ascertainable. Breach of order (2) Every one who contravenes an order made under paragraph (1)(a) is guilty of an offence punishable on summary conviction. Application (3) Sections 740 to 741.2 apply, with any modifications that the circumstances require, to orders made under paragraph (1)(b).


http://www.lonang.com/exlibris/organic/1641-asc.htm as of September 12, 2011

ABOLITION OF THE STAR CHAMBER, JULY 5, 1641 An act for the regulating of the privy council, and for taking away the court commonly called the star-chamber. WHEREAS by the great charter many times confirmed in parliament, it is enacted, That no freeman shall be taken or imprisoned, or disseised of his freehold or liberties, or free customs, or be outlawed or exiled or otherwise destroyed, and that the King will not pass upon him, or condemn him; but by lawful judgment of his peers, or by the law of the land: (2) and by another statute made in the fifth year of the reign of King Edward the Third, it is enacted, That no man shall be attached by any accusation, nor forejudged of life or limb, nor his lands, tenements, goods nor chattels seized into the King's hands, against the form of the great charter and the law of the land: (3) and by another statute made in the five and twentieth year of the reign of the same King Edward the Third, it is accorded, assented and established, That none shall be taken by petition or suggestion made to the King, or to his council, unless it be by indictment or presentment of good and lawful people of the same neighbourhood where such deeds be done, in due manner, or by process made by writ original at the common law, and that none be put out of his franchise or freehold, unless he be duly brought in to answer, and forejudged of the same by the course of the law, and if any thing be done against the same, it shall be redressed and holden for none: (4) and by another statute made in the eight and twentieth year of the reign of the same King Edward the Third, it is amongst other things enacted, That no man of what estate or condition soever he be, shall be put out of his lands or tenements, nor taken, nor imprisoned, nor disinherited, without being brought in to answer by due process of law: (5) and by another statute made in the two and fortieth year of the reign of the said King Edward the Third, it is enacted, That no man be put to answer, without presentment before justices, or matter of record, or by due process and writ original, according to the old law of the land, and if any thing be done to the contrary, it shall be void in law, and holden for error:

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(6) and by another statute made in the six and thirtieth year of the same King Edward the Third, it is amongst other things enacted, That all pleas which shall be pleaded in any courts before any the King's justices, or in his other places, or before any of his other ministers, or in the courts and places of any other lords within the realm, shall be entered and enrolled in latin: (7) and whereas by the statutes made in the third year of King Henry the Seventh, power is given to the chancellor, the lord treasurer of England for the time being, and the keeper of the King's privy seal, or two of them, calling unto them a bishop and a temporal lord of the King's most honourable council, and the two chief justices of the King's bench and common pleas for the time being, or other two justices in their absence, to proceed as in that act is expressed, for the punishment of some particular offences therein mentioned: (8) and by the statute made in the one and twentieth year of King Henry the Eighth, the president of the council is associated to join with the lord chancellor and other judges in the said statute of the Third of Henry the Seventh mentioned; (9) but the said judges have not kept themselves to the points limited by the said statute, but have undertaken to punish where no law doth warrant, and to make decrees for things having no such authority, and to inflict heavier punishments than by any law is warranted: II. And forasmuch as all matters examinable or determinable before the said judges, or in the court commonly called the star-chamber, may have their proper remedy and redress, and their due punishment and correction, by the common law of the land, and in the ordinary course of justice elsewhere; (2) and forasmuch as the reasons and motives inducing the erection and continuance of that court do now cease: (3) and the proceedings, censures and decrees of that court, have by experience been found to be an intolerable burthen to the subjects, and the means to introduce an arbitrary power and government; (4) and forasmuch as the council-table hath of late times assumed unto it self a power to intermeddle in civil causes and matters only of private interest between party and party, and have adventured to determine of the estates and liberties of the subject, contrary to the law of the land and the rights and privileges of the subject, by which great and manifold mischief and inconveniencies have arisen and happened, and much incertainty by means of such-proceedings hath been conceived concerning mens rights and estates; for settling whereof, and preventing the like in time to come, III. Be it ordained and enacted by the authority of this present parliament, That the said court commonly called the star-chamber, and all jurisdiction, power and authority belonging unto, or exercised in the same court, or by any the judges, officers, or ministers thereof, be from the first day of August in the year of our Lord God one thousand six hundred forty and one, clearly and absolutely dissolved, taken away and determined; (2) and that from the said first day of August neither the lord chancellor, or keeper of the great seal of England, the lord treasurer of England, the keeper of the King's privy seal, or president of the council, nor any bishop, temporal lord, privy counsellor or judge, or justice whatsoever, shall have any power or authority to hear, examine or determine any matter or thing whatsoever, in the said court commonly called the star-chamber, or to make, pronounce or deliver any judgment, sentence, order or decree, or to do any judicial or ministerial act in the said court:


(3) and that all and every act and acts of parliament, and all and every article, clause and sentence in them, and every of them, by which any jurisdiction, power or authority is given, limited or appointed unto the said court commonly called the star-chamber, or unto all or any the judges, officers or ministers thereof, or for any proceedings to be had or made in the said court, or for any matter or thing to be drawn into question, examined or determined there, shall for so much as concerneth the said court of star-chamber, and the power and authority thereby given unto it, be from the said first day of August repealed and absolutely revoked and made void. IV. And be it likewise enacted, That the like jurisdiction now used and exercised in the court before the president and council in the marches of Wales; (2) and also in the court before the president and council established in the northern parts; (3) and also in the court commonly called the court of the duchy of Lancaster, held before the chancellor and council of that court; (4) and also in the court of exchequer of the county palatine of Chester, held before the chamberlain and council of that court; (5) the like jurisdiction being exercised there, shall from the said first day of August one thousand six hundred forty and one, be also repealed and absolutely revoked and made void; any law, prescription, custom or usage, or the said statute made in the third year of King Henry the Seventh, or the statute made the one and twentieth of Henry the Eighth, or any act or acts of parliament heretofore had or made, to the contrary thereof in any wise notwithstanding: (6) and that from henceforth no court, council or place of judicature, shall be erected, ordained, constituted or appointed within this realm of England, or dominion of Wales, which shall have, use or exercise the same or the like jurisdiction as is or hath been used, practised or exercised in the said court of star-chamber. V. Be it likewise declared and enacted by authority of this present parliament, That neither his Majesty, nor his privy council, have or ought to have any jurisdiction, power or authority, by English bill, petition, articles, libel or any other arbitrary way whatsoever, to examine or draw into question, determine or dispose of the lands, tenements, hereditaments, goods or chattels of any the subjects of this kingdom, but that the same ought to be tried and determined in the ordinary courts of justice, and by the ordinary course of the law. VI. And be it further provided and enacted, That if any lord chancellor, or keeper of the great seal of England, lord treasurer, keeper of the King's privy seal, president of the council, bishop, temporal lord, privy counsellor, judge or justice whatsoever, shall offend, or do any thing contrary to the purport, true intent and meaning of this law, then he or they shall for such offence forfeit the sum of five hundred pounds of lawful money of England unto any party grieved, his executors or administrators, who shall really prosecute for the same, and first obtain judgment thereupon, to be recorded in any court of record at Westminster, by action of debt, bill, plaint or information, wherein no essoin, protection, wager of law, aid prayer, privilege, injunction or order of restraint, shall be in any wise prayed, granted or allowed, nor any more than one imparlance: (2) and if any person against whom any such judgment or recovery shall be had as aforesaid, shall after such judgment or recovery offend again in the same, then he or they for such offence shall forfeit the sum of one thousand pounds of lawful money of England unto any party grieved, his executors or administrators, who shall really


prosecute for the same, and first obtain judgment thereupon, to be recorded in any court of record at Westminster, by action of debt, bill, plaint or information, in which no essoin, protection, wager of law, aid prayer, privilege, injunction or order of restraint shall be in any wise prayed, granted or allowed, nor any more than one imparlance: (3) and if any person against whom any such second judgment or recovery shall be had as aforesaid, shall after such judgment or recovery offend again in the same kind, and shall be therof duly convicted by indictment, information, or any other lawful way or means, that such person so convicted shall be from thenceforth disabled, and become by virtue of this act incapable ipso facto, to bear his and their said office and offices respectively; (4) and shall be likewise disabled to make any gift, grant, conveyance, or other disposition of any of his lands, tenements, hereditaments, goods or chattels, or to take any benefit of any gift, conveyance or legacy to his own use. VII. And every person so offending shall likewise forfeit and lose unto the party grieved, by any thing done contrary to the true intent and meaning of this law, his treble damages which he shall sustain and be put into by means or occasion of any such act or thing done, the same to be recovered in any of his Majesty's courts of record at Westminster, by action of debt, bill, plaint or information, wherein no essoin, protection, wager of law, aid prayer, privilege, injunction or order of restraint, shall be in any wise prayed, granted or allowed, nor any more than one imparlance. VIII. And be it also provided and enacted, That if any person shall hereafter be committed, restrained of his liberty, or suffer imprisonment, by the order or decree of any such court of star-chamber, or other court aforesaid, now or at any time hereafter, having or pretending to have the same or like jurisdiction, power or authority to commit or imprison as aforesaid, (2) or by the command or warrant of the King's majesty, his heirs or successors, in their own person, or by the command or warrant of the council-board, or of any of the lords or others of his Majesty's privy council; (3) that in every such case every person so committed, restrained of his liberty, or suffering imprisonment, upon demand or motion made by his counsel, or other employed by him for that purpose, unto the judges of the court of King's bench or common pleas, in open court, shall without delay, upon any pretence whatsoever, for the ordinary fees usually paid for the same, have forthwith granted unto him a writ of habeas corpus, to be directed generally unto all and every sheriffs, gaoler, minister, officer or other persons in whose custody the party committed or restrained shall be, (4) and the sheriffs, gaoler, minister, officer or other person in whose custody the party so committed or restrained shall be, shall at the return of the said writ, and according to the command thereof, upon due and convenient notice therof given unto him, at the charge of the party who requireth or procureth such writ, and upon security by his own bond given, to pay the charge of carrying back the prisoner, if he shall be remanded by the court to which he shall be brought, as in like cases hath been used, such charges of bringing up and carrying back the prisoner to be always ordered by the court, if an difference shall arise thereabout, bring on cause to be brought the body of the said party so committed or restrained unto and before the judges or justices of the said court from whence the same writ shall issue, in open court,


(5) and shall then likewise certify the true cause of such his detainer or imprisonment, and thereupon the court, within three court-days after such return made and delivered in open court, shall proceed to examine and determine whether the cause of such commitment appealing upon the said return be just and legal, or not, and shall thereupon do what to justice shall appertain, either by delivering, bailing or remanding the prisoner: (6) and if any thing shall be otherwise wilfully done or omitted to be done by any judge, justice, officer or other person afore-mentioned, contrary to the direction and true meaning hereof, that then such person so offending shall forfeit to the party grieved his treble damages, to be recovered by such means, and in such manner as is formerly in this act limited and appointed for the like penalty to be sued for and recovered. IX. Provided always, and be it enacted, That this act and the several clauses therein contained shall be taken and expounded to extend only to the court of star-chamber, (2) and to the said courts holden before the president and council in the marches of Wales, (3) and before the president and council in the northern parts, (4) and also to the court commonly called the court of the duchy of Lancaster, holden before the chancellor and council of that court, (5) and also in the court of exchequer of the county palatine of Chester, held before the chamberlain and council of that court, (6) and to all courts of like jurisdiction to be hereafter erected, ordained, constituted or appointed as aforesaid; and to the warrants and directions of the council-board, and to the commitments, restraints and imprisonments of any person or persons made, commanded or awarded by the King's majesty, his heirs or successors, in their own person, or by the lords and others of the privy council, and every one of them. X. And lastly, provided, and be it enacted, That no person or persons shall be sued, impleaded, molested or troubled for any offence against this present act, unless the party supposed to have so offended shall be sued or impleaded for the same within two years at the most after such time wherein the said offence shall be committed.

2011 Lonang Institute. All Rights Reserved.


Bios: Tom Black – President, Ontario Landowners Association Algonquin College – Electronic Technology Current – Full Time Farmer Email – [email protected] Phone – 1-877-258-6108 or 1-613-831-2642 Jeff Bogearts – Vice President, Ontario Landowners Association Ontario Police College Toronto Police College CSC College – Computer Studies Current – Vice President of Business Development 20-12 Electronic Recycling at tter.ca

Email – [email protected] Phone – 1-613-284-2424

Elizabeth Marshall – Director of Research, Ontario Landowners Association Georgian College of Applied Arts and Technology

– Computer Operation and Technology Director – Canadian Justice Review Board Current – President All Rights Research Ltd. Presently OLA information is being used at the University of Guelph. The OLA has done various radio talk shows and have been guest speakers throughout Ontario and Quebec. The OLA have produced the reports: MPAC: Its Creation and Its Conflicts, May, 2011© Response to the Ontario Bar Association: “Back Off Government: What Municipal Lawyers Need to Know about Crown Patents”, July, 2011 ©




Why Complete Title Searches and Supporting Documents are Imperative, January 2012 © TERANET/POLARIS: The Problems, the History and the Present, January 2012 © Conservation Authorities: Legislation Out of Control, March 16, 2012 © Mackie v. Niagara Escarpment Commission: Where Justice has Gone Wrong, June 2012 © Tree Cutting By-Laws: What Municipal Councils Need to Know, October 2012 © Property Standard By-Laws: What Municipal Councils Need to Know, November 2012© Official Plans: What Municipal Councils Need to Know, December 2012©

i 1 William & Mary (Session 2.), Chapter 2. (a) (Commonly called “THE BILL OF RIGHTS.”) An Act declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown (A.D. 1688.) The Revised Statutes of Ontario, 1897, Vol. III, Being A Consolidation and Revision of Certain Imperial Statutes Relating to Property and Civil Rights Incorporated into the Law of Ontario By Virtue of Provincial Legislation Up to the End of the Year 1897, with An Appendix, containing (1) Imperial Constitutional Statutes, (2) Imperial Statutes of General Practical Utility, Passed Since 15, October, 1792, In Force in Ontario, Ex Proprio Vigore, (3) The Habeas Corpus Act. and (4) A Table of Imperial Statutes in Force in Canada Ex Proprio Vigore, At the End of the Year 1901. Toronto Printed by L. K. Cameron, Law Printer to the Kings Most Excellent Majesty, 1902, p. 12. ii [19] It is well recognized that the preamble to the Constitution identifies the organizing principles of our

Constitution and can be used to fill in gaps in the express terms of the constitutional text (see Reference re Remuneration of Judges of the Provincial Court of P.E.I., 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3 at p.75). [20] The preamble to the Constitution Act, 1867, (U.K.) 30 & 31 Victoria, c.3, as amended, provides as follows:

“Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom …” O’Donohue v. Canada, 2003 CanLII 41404 (ON SC COURT FILE NO.: 01-CV-217147CM DATE: 20030626 3 http://www.anticorruption-online.org/actions-against-corruptions/1376-spca-greed-a-world-wide-issue-are-we-going-

to-condone-it 4 http://brindlestick.blogspot.ca/2011/09/reason-21-mcguinty-must-go.html

5 Regulations 22. (1) The Lieutenant Governor in Council may make regulations, (a) prescribing activities that

constitute activities carried on in accordance with reasonable and generally accepted practices of agricultural animal care, management or husbandry for the purposes of clauses 11.1 (2) (a) and 11.2 (6) (c); (b) prescribing classes of animals, circumstances and conditions or activities for the purposes of clauses 11.1 (2) (b) and 11.2 (6) (d); (c) exempting any person or class of persons from any provision of this Act or of a regulation made under this Act, and prescribing conditions and circumstances for any such exemption. 2008, c. 16, s. 18.

http://www.canlii.org/en/ca/scc/doc/1997/1997canlii317/1997canlii317.html

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Same (2) The Minister responsible for the administration of this Act may make regulations, (a) prescribing and governing the powers and duties of the Chief Inspector of the Society, including the power to establish qualifications, requirements and standards for inspectors and agents of the Society, to appoint inspectors and agents of the Society and to revoke their appointments and generally to oversee the inspectors and agents of the Society in the performance of their duties; (b) prescribing standards of care for the purposes of section 11.1; (c) governing the report required under section 11.3, including its contents and the manner of making the report; (Veterinarians’ obligation to report 11.3 Every veterinarian who has reasonable grounds to believe that an animal has been or is being abused or neglected shall report his or her belief to an inspector or an agent of the Society. 2008, c. 16, s. 8.) (d) prescribing forms for the information on oath required by subsection 11.5 (1), 12 (1) or 14 (1.1), for a warrant issued under subsection 11.5 (1) or 12 (1) and for an order issued under subsection 14 (1.1) or (1.4); (e) governing applications for and the issue of warrants by telephone or other means of telecommunication for the purposes of subsections 11.5 (1.1) and 12 (2), prescribing the forms required to apply for a warrant under those subsections and the forms for the warrants issued under those subsections, prescribing rules for the execution of such warrants and prescribing evidentiary rules with respect to such warrants; (f) prescribing a period of time for the purpose of section 15.1; (g) governing the service of orders, notices and statements of account for the purposes of section 20. 2008, c. 16, s. 18; 2009, c. 33, Sched. 9, s. 9 (7). 6 HER MAJESTY THE QUEEN V. Baker Court of Appeal for Ontario DATE: 20041012, DOCKET: C41485

7 Misconduct 80. (1) A police officer is guilty of misconduct if he or she, (a) commits an offence described in a

prescribed code of conduct; (b) contravenes section 46 (political activity); (c) engages in an activity that contravenes subsection 49 (1) (secondary activities) without the permission of his or her chief of police or, in the case of a municipal chief of police, without the permission of the board, being aware that the activity may contravene that subsection; (d) contravenes subsection 55 (5) (resignation during emergency); (e) commits an offence described in subsection 79 (1) or (2) (offences, complaints); (f) contravenes section 81 (inducing misconduct, withholding services); (g) contravenes section 117 (trade union membership); (h) deals with personal property, other than money or a firearm, in a manner that is not consistent with section 132; (i) deals with money in a manner that is not consistent with section 133; (j) deals with a firearm in a manner that is not consistent with section 134; (k) contravenes a regulation made under paragraph 15 (equipment), 16 (use of force), 17 (standards of dress, police uniforms), 20 (police pursuits) or 21 (records) of subsection 135 (1). 2007, c. 5, s. 10. Off-duty conduct (2) A police officer shall not be found guilty of misconduct under subsection (1) if there is no connection between the conduct and either the occupational requirements for a police officer or the reputation of the police force. 2007, c. 5, s. 10. 8 Inducing misconduct and withholding services 81. (1) No person shall, (a) induce or attempt to induce a member of

a police force to withhold his or her services; or (b) induce or attempt to induce a police officer to commit misconduct. 2007, c. 5, s. 10. Withholding services (2) No member of a police force shall withhold his or her services. 2007, c. 5, s. 10. Offence (3) A person who contravenes subsection (1) or (2) is guilty of an offence and on conviction is liable to a fine of not more than $2,000 or to imprisonment for a term of not more than one year, or to both. 2007, c. 5, s. 10. Consent of Solicitor General (4) No prosecution shall be instituted under this section without the consent of the Solicitor General. 2007, c. 5, s. 10 9 Regulations 135. (1) The Lieutenant Governor in Council may make regulations, 1. prescribing standards for

police services; 1.1 establishing and governing standards concerning the adequacy and effectiveness of police services, including prescribing methods for monitoring and evaluating the adequacy and effectiveness of police services against such standards; 2. prescribing procedures for the inspection and review by the Solicitor General of police forces; 3. requiring municipalities to provide police detention facilities, governing those facilities and providing for their inspection; 4. providing for financial aid to police training schools; 4.1 prescribing additional powers and duties of the Independent Police Review Director; 5. prescribing the minimum amount of remuneration to be paid by municipalities to the members of boards who are appointed by the Lieutenant Governor in Council or Solicitor General; 6. prescribing the procedures to be followed by boards and the places at which their meetings shall be held; 6.1 governing the selection and appointment of members of boards; 6.2 prescribing courses of training for members of boards and prescribing standards in that connection; 6.3 prescribing a code of conduct for members of boards; 7. prescribing the forms of oaths or affirmations of office and secrecy for the purposes of section 32 (members of boards), section 45 (police officers), subsection 52 (6) (auxiliary members of police forces), subsection 53 (9) (special constables) and subsection 54 (8) (First Nations Constables); 8. respecting the government, operation and administration of police forces; 9. governing the qualifications for the appointment of persons to police forces and for their promotion; 10. prescribing the method for determining the amounts owed by municipalities for police services provided by the Ontario Provincial Police under section 5.1, prescribing the time when and manner in which the payments are to be made, (and, for such purposes, classifying municipalities and prescribing different methods, different times or different manners for different classes of municipalities), prescribing the interest, or the method of


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determining the interest, owed on late payments and governing payment credits and refunds for overpayments; 11. requiring territories without municipal organization to pay for police services provided by the Ontario Provincial Police and, i. governing the determination of the amounts payable for those services, ii. governing the payment of those amounts, including providing for the calculation and payment of interest and penalties, iii. governing the collection of those amounts, including providing for payment credits and refunds for overpayments, or providing that all or part of those amounts may be collected under the Provincial Land Tax Act, 2006 as if they were taxes imposed under that Act, and iv. for the purposes described in subparagraphs i, ii and iii, establishing different requirements for different classes of territories; 12. respecting the political activities in which municipal police officers are permitted to engage; 13. establishing the ranks that shall be held by members of municipal police forces; 14. prescribing the minimum salary or other remuneration and allowances to be paid to members of municipal police forces; 14.1 providing for the granting of service badges to members of the Ontario Provincial Police or any class thereof and for the payment of allowances to those members who are granted service badges; 15. regulating or prohibiting the use of any equipment by a police force or any of its members; 16. regulating the use of force by members of police forces; 17. prescribing standards of dress for police officers on duty and prescribing requirements respecting police uniforms; 18. prescribing courses of training for members of police forces and prescribing standards in that connection; 19. governing the conduct, duties, suspension and dismissal of members of police forces; 20. describing the circumstances under which members of police forces are permitted and not permitted to pursue persons by means of motor vehicles, and prescribing procedures that shall be followed when a person is pursued in that manner; 20.1 prescribing the nature of the information that may be disclosed under subsection 41 (1.1) by a chief of police or a person designated by a chief of police, to whom it may be disclosed and the circumstances in which it may be disclosed; 21. prescribing the records, returns, books and accounts to be kept by police forces and boards and their members; 22. prescribing the method of accounting for fees and costs that come into the hands of members of police forces; 23. prescribing a complaints process for the making of a complaint by a member of the public to a chief of police or his or her delegate, including but not limited to, i. setting out conditions in respect of the complaint, and ii. setting out limits respecting complaints made by the member of the public to the Independent Police Review Director under Part V in respect of the same matter; 23.1 Repealed: 2007, c. 5, s. 12 (2). 24. establishing procedural rules for anything related to the powers, duties or functions of the Independent Police Review Director under Part V; 24.1 establishing regional or other advisory committees consisting of representatives from community groups, representatives from the policing community and any other persons who may be prescribed, for the purpose of advising the Independent Police Review Director on matters relating to his or her duties under subsection 58 (4), and respecting the appointment of such representatives and other persons to the committees; 25. defining “frivolous or vexatious” and “made in bad faith” for the purposes of paragraph 1 of subsection 60 (4); 26. prescribing a code of conduct in which offences constituting misconduct are described for the purposes of section 80; 26.1 respecting the application of Part V, with such modifications as may be specified in the regulation, to a police officer in the circumstances referred to in subsection 90 (3); 26.2 prescribing additional persons or classes of persons for the purposes of subsection 94 (1); 26.3 prescribing qualifications, conditions or requirements, if any, for the purposes of subsection 94 (2), including prescribing different qualifications, conditions or requirements for different persons or classes of persons, and exempting persons or classes of persons from specified qualifications, conditions or requirements; 26.4 governing procedures, conditions or requirements for the investigation of complaints under Part V; 26.5 providing for the payment of fees and expenses to witnesses at hearings conducted under Part V; 27. prescribing the method of accounting for money to which section 133 applies; 28. prescribing forms and providing for their use; 29. prescribing any matter that this Act requires to be prescribed or refers to as being prescribed; 30. respecting any matter that is necessary or advisable to implement this Act effectively. R.S.O. 1990, c. P.15, s. 135 (1); 1995, c. 4, s. 4 (11); 1997, c. 8, s. 40; 1997, c. 17, s. 10; 2006, c. 33, Sched. Z.3, s. 27; 2007, c. 5, s. 12 (1, 2). Conflict (1.1) In the event of a conflict between a rule established by a regulation made under paragraph 24 of

subsection (1) and a rule established by the Independent Police Review Director under clause 56 (1) (a), the rule established by regulation prevails. 2007, c. 5, s. 12 (3). Same (1.2) In the event of a conflict between a procedure, condition or requirement made under paragraph 26.4 of

subsection (1) and a procedural rule or guideline established by the Independent Police Review Director under clause 56 (1) (b), the procedure, condition or requirement made by regulation prevails. 2007, c. 5, s. 12 (3). Same (2) A regulation made under subsection (1) may be general or particular in its application. R.S.O. 1990,

c. P.15, s. 135 (2). Crown bound 136. This Act binds the Crown in right of Ontario. R.S.O. 1990, c. P.15, s. 136.

10

http://www.cbc.ca/news/canada/toronto/story/2012/10/10/ontario-zoos-aquariums-animals-regulations.html

11 VIVASECTION - Operation on a living animal for experimental rather than healing purposes; more broadly, all

experimentation on live animals. It is opposed by many as cruelty and supported by others on the ground that it advances medicine; a middle position is to oppose unnecessarily cruel practices, use alternatives when possible, and




http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90p15_f.htm#s136



restrict experiments to necessary medical research (as opposed, for example, to cosmetics testing). Surgery on animals without anesthesia was once common; many people, most significantly RENÉ DESCARTES, claimed that animals did not really feel pain. The testing of certain chemicals on animals to find the lethal dose still occurs; however, the development of alternative methods (computer simulations, TISSUE CULTURE tests) has led some funding agencies and research organizations to ban these tests. An antivivisection movement in the late 19th century broadened its scope to include prevention of all cruelty to animals and later gave rise to the animal rights movement. http://www.merriam-webster.com/dictionary/vivisection

12 Ontario SPCA Training Manual, 2002, p. 1 – 3.

13

http://www.veengle.com/s/paralyzed%20cat.html 14

OSPCA keeps staff salaries secret while seeking cash infusion from Queen’s Park, Published on Tuesday September 04, 2012. http://www.thestar.com/news/gta/article/1251274--ospca-seeking-more-cash-from-queen-s-park-to-save-animals 15

“The OSPCA has 80 “inspectors and agents” and a number of shelter workers and administrative staff.” OSPCA keeps staff salaries secret while seeking cash infusion from Queen’s Park, Published on Tuesday September 04, 2012. http://www.thestar.com/news/gta/article/1251274--ospca-seeking-more-cash-from-queen-s-park-to-save-animals 16

MacDonald downplayed the email, saying the OSPCA is just protecting staff privacy. http://www.thestar.com/news/gta/article/1251274--ospca-seeking-more-cash-from-queen-s-park-to-save-animals 17

An internal email sent to her on Aug. 7 by Tom Stephenson, chief financial officer for the Ontario Society for Prevention of Cruelty to Animals, sets out a plan to ask government and private donors for an increase to the agency’s $20-million annual budget. http://www.thestar.com/news/gta/article/1251274--ospca-seeking-more-cash-from-queen-s-park-to-save-animals 18

http://www.thestar.com/news/gta/article/1251274--ospca-seeking-more-cash-from-queen-s-park-to-save-animals 19

http://www.cbc.ca/news/canada/ottawa/story/2012/09/25/ottawa-ospca-enters-dog-breeders-home-dental-bill-hearing.html 20

National Farm Animal Care Council, http://www.nfacc.ca/pdfs/conferences/2007/Speaker%20bios.pdf 21

I am most grateful to the CIWF Fund (Compassion In World Farming) for inviting me to write the paper. (page 126) Somewhat similarly to Tinbergen’s Four Whys in ethology, the Five Freedoms developed by the British Farm Animal Welfare Council (Webster, 1994) have become a paradigm for organizing thoughts in animal welfare science. Among the five freedoms, four are freedoms from. It is relatively straightforward how to strive for their achievement. When an animal is well fed and watered, its nutritional needs are met, and so the ‘‘freedom from hunger, thirst and malnutrition’’ is provided. Similarly, the next three freedoms (from discomfort; from pain, injury and disease; from fear and distress) could be secured when adequate environment including a good resting place is provided; when painful procedures, risk of injury and occurrence of disease are kept at a minimum; when situations and conditions inducing fear or hindering effective coping are avoided. The fifth freedom is of a different kind: the freedom to express normal behaviour. This freedom is less clearly delimited and more controversial than the other four freedoms for two reasons. First, in contrast with the other four, it does not demand that specific undesirable physiological, health or psychological states are prevented; it rather requires a kind of general liberty for all kinds of behaviour of the animal. Thus, the boundaries of this freedom are loose and open to reinterpretation. Second, the yardstick for this liberty is ‘‘the normal’’ or, in some versions of this principle, ‘‘the natural’’ form of the behaviour. However, is it straightforward what behaviour is normal (or natural) and which is not? Natural behaviour does not exist in a form of one standard gauge. Some simple behavioural patterns are quite uniform across time and across individuals, such as ritualized signal movements (e.g., the play bow in canids; Bekoff, 1977). However, most behavioural elements are rather variable in form, duration, and intensity (even those that may seem rather uniform for the humans, e.g., barking in dogs; Yin and McCowan, 2004) and they occur at widely different rates and sequential combinations. Based on genetic predispositions, they are guided by interplay between internal motivational states of the animal and the time dynamic of the stimuli from the environment (Jensen and Toates, 1993)…. The performance of natural behaviour does not necessarily make a positive contribution to the welfare of farm animals At least two classes of naturally occurring behaviours actually decrease the welfare of animals.

http://www.merriam-webster.com/concise/Descartes,%20Rene

http://www.merriam-webster.com/concise/tissue%20culture

http://www.veengle.com/s/paralyzed%20cat.html

http://www.thestar.com/news/gta/article/1251274--ospca-seeking-more-cash-from-queen-s-park-to-save-animals




http://www.ontariospca.ca/





http://www.cbc.ca/news/canada/ottawa/story/2012/09/25/ottawa-ospca-enters-dog-breeders-home-dental-bill-hearing.html


http://www.nfacc.ca/pdfs/conferences/2007/Speaker%20bios.pdf


The first class includes patterns that I will label as ‘‘Emergency behaviours’’, i.e., behavioural reactions to situations that the animal perceives as immediate and serious threats to its fitness. For instance, fowl kept in large groups have little experience with humans and a person entering the stable may cause a sudden increase in panic-like anti-predatory behaviour (Mills and Faure, 1990). … Emergency behaviours are thus behaviours that cost a lot in terms of fitness but were adaptive in the natural environment of the ancestors because the high cost was outweighed by the prevention of an even higher fitness loss. However, in terms of welfare in the current husbandry situations, these behaviours do not bring any benefits to the animals, while their welfare cost are high, both in terms of biological functioning and health (e.g., risk of injury; Knierim and Gocke, 2003) and in the subjective experience, as their performance is usually accompanied by aversive motivational affective states (Fraser and Duncan, 1998). The discrepancy between the naturalness and the welfare-compromising effect of emergency behaviours stems from the fact that natural selection was maximizing fitness, and not welfare, and these two parameters do not go hand in hand. Although emergency behaviours are perfectly natural responses to the outstanding situation, it would be a non-sense to argue that farm animals must be provided with the opportunity to perform these behaviours. On the contrary, the welfare of the animals requires that situations that are perceived as fitness-threatening by the animals should be avoided in captivity… As with emergency behaviours, it would not be in the line of welfare-improving policy to guarantee the animals the freedom to perform such damaging behaviours, even though they are undoubtedly a part of their natural behaviour repertoire. The discrepancy between naturalness and welfare arises here because natural selection was maximizing individual fitness, while welfare-caring people are concerned with welfare of all animals in the group equally…. Farm animals do not need ‘‘natural behaviour’’ per se for good welfare. However, providing the opportunity for natural behaviour is often a very effective way to satisfy the needs and/or goals of the animals, to provide them with emotionally positive experience, and to stimulate their behavioural development in such a way that it brings long-term benefits. Therefore, natural behaviour of the species in question should be considered both when new housing systems are being developed (Lidfors et al., 2005) but also when solutions to particular problems in existing systems are being sought. Acknowledgements The preparation of this paper was supported by the grant IAA6307402 from the Grant Agency of the Czech Academy of Science and the grant MZE 0002701402 from the Czech Ministry of Agriculture. I am most grateful to the CIWF Fund (Compassion In World Farming) for inviting me to write the paper. How important is natural behaviour in animal farming systems?, Marek Spinka, Ethology Group, Research Institute of Animal Production, CZ-104 01 Prague-Uhrˇıńeˇves, Czech Republic, Available online 2 May 2006, p. 118 – 126. 22

It is often assumed and demanded that for a good welfare, farm animals should be given ‘‘the freedom to express their natural behaviour’’. This demand is problematic for at least two reasons. First, natural behaviour is difficult to delineate because of its variability and flexibility. Second, some behavioural patterns that are clearly natural are in fact detrimental to animal welfare. These include emergency behaviours such as flight reactions that bring the animal into a state of stress without achieving the goal for which the behaviour had evolved; and damaging behaviours such as rank-related or illness-related aggression during which animals inflict injuries or deprive their penmates of resources. How important is natural behaviour in animal farming systems?, Marek Spinka, Ethology Group, Research Institute of Animal Production, CZ-104 01 Prague-Uhrˇıńeˇves, Czech Republic, Available online 2 May 2006, p. 1 23

At 1010 http://www.ontla.on.ca/web/committee-proceedings/committee_transcripts_details.do?locale=en&Date=2008-07-21&ParlCommID=8855&BillID=1979&Business=&DocumentID=23139 24

http://www.ciwf.org.uk/help_us/give_a_gift_in_memory/compassionate_tribute_funds.aspx 25

http://www.ontla.on.ca/web/committee-proceedings/committee_transcripts_details.do?locale=en&Date=2008-07-21&ParlCommID=8855&BillID=1979&Business=&DocumentID=23139 26


PROVINCIAL ANIMAL WELFARE ACT, 2008 May 5, 2008 http://www.ontla.on.ca/web/house- proceedings/house_detail.do?locale=en&Parl=39&Sess=1&Date=2008-05-05#P63_2336 28

http://www.animalpeoplenews.org/anp/2012/02/11/world-society-for-the-protection-of-animals-disbands-member-society-network/ 29

http://en.wikipedia.org/wiki/World_Society_for_the_Protection_of_Animals

http://www.ontla.on.ca/web/committee-proceedings/committee_transcripts_details.do?locale=en&Date=2008-07-21&ParlCommID=8855&BillID=1979&Business=&DocumentID=23139



http://www.ciwf.org.uk/help_us/give_a_gift_in_memory/compassionate_tribute_funds.aspx





http://www.ontla.on.ca/web/house-%20proceedings/house_detail.do?locale=en&Parl=39&Sess=1&Date=2008-05-05#P63_2336

http://www.ontla.on.ca/web/house-%20proceedings/house_detail.do?locale=en&Parl=39&Sess=1&Date=2008-05-05#P63_2336

http://www.animalpeoplenews.org/anp/2012/02/11/world-society-for-the-protection-of-animals-disbands-member-society-network/

http://www.animalpeoplenews.org/anp/2012/02/11/world-society-for-the-protection-of-animals-disbands-member-society-network/

http://en.wikipedia.org/wiki/World_Society_for_the_Protection_of_Animals


30

http://www.thewsjblogger.com/ 31


HER MAJESTY THE QUEEN V. Baker Court of Appeal for Ontario DATE: 20041012, DOCKET: C41485 33

SPCA wants its bite back, http://www.cbc.ca/news/canada/newfoundland-labrador/story/2012/12/31/nl-animal-protection-spca-1231.html 34

Respected. 35

Blackstone V. 2 p. 10 36

Municipal Councillor’s Guide, 2010, Section 3: Councillors as Lawmakers. 37

Society continued, 2. The Ontario Society for the Prevention of Cruelty to Animals, a body politic and corporate incorporated by An Act to Incorporate the Ontario Society for the Prevention of Cruelty to Animals, being chapter 124

of the Statutes of Ontario, 1919, is continued under the name The Ontario Society for the Prevention of Cruelty to Animals in English R.S.O. 1990, c. O.36, s. 2. 38

BODY POLITIC: Black’s Law Dictionary, p. 198 – A group of people regards in a political (rather than private) sense and organized under a common government authority. 39

CORPORATE: Black’s Law Dictionary, p. 390 – Of or relating to a corporation, esp. a business corporation <corporate bonds>. CORPORATION: Black’s Law Dictionary, p. 391 – An entity (usu. a business) having authority under law to act as a single person distinct from the shareholders who own it and having rights to issue stock and exist indefinitely; a group or succession of persons established in accordance with legal rules into a legal or juristic person that has a legal personality distinct from the natural person who make it up, exists indefinitely apart from them, and has the legal powers that its constitution gives it. – Also termed corporation aggregate; aggregate corporation; body corporate; corporate body. “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law…[i]t possess only those properties which the charter of its creation confers upon it.” Trustees of Dartmouth College v. Woodward, 17 U.S. (4Wheat.) 518, 636 (1819) Marshall, J.). 40

Membership 4. The Society shall consist of class A members, being affiliated societies, class B members, being

individual members, and class C members, being honorary members, and each class has such rights and obligations as are provided in the by-laws of the Society. R.S.O. 1990, c. O.36, s. 4; 2008, c. 16, s. 3. 41

Board of directors: executive committee 5. The affairs of the Society shall be controlled and managed by a board

of directors and by an executive committee, both of which shall be composed and have such powers and duties as are provided in the by-laws of the Society. R.S.O. 1990, c. O.36, s. 5; 2008, c. 16, s. 4. 42

Officers 6. The Society shall have such officers with such powers and duties as are provided in the by-laws of the

Society. 2008, c. 16, s. 5. 43

By-laws 7. (1) The Society may pass such by-laws, not contrary to law, as it considers necessary for the control

and management of its affairs and the carrying out of its object. R.S.O. 1990, c. O.36, s. 7 (1). Approval (2) No by-law of the Society is valid or shall be acted upon until it has been approved by a majority of the votes cast in accordance with the by-laws of the Society at an annual or special general meeting. R.S.O. 1990, c. O.36, s. 7 (2). Annulment (3) The Lieutenant Governor in Council may annul any by-law of the Society. R.S.O. 1990, c. O.36, s. 7 (3). 44

3. The said society shall consist of all persons who shall contribute to the funds thereof according to the rules and regulations of the society, and for the purpose of holding the first meeting and all other preliminary meetings prior to the adoption of a constitution, shall consist of all persons who shall have subscribed and paid a sum of not less than two dollars to such fund. 45

Terrance S. Carter, B.A., LL.B., Trade-Mark Agent, is the managing partner of Carter’s Professional Corporation, Orangeville, Ontario, Canada, and counsel to Fasken Martineau DuMoulin LLP. Ryan M. Prendergast, B.A., LL.B., is

http://www.thewsjblogger.com/



http://www.cbc.ca/news/canada/newfoundland-labrador/story/2012/12/31/nl-animal-protection-spca-1231.html










an associate of Carters Profession Corporation, Orangeville, Ontario, Canada. http://www.carters.ca/pub/bulletin/charity/2010/chylb236.htm 46

“An Act respecting not-for-profit corporations and certain other corporations”, Summary. 47

5. The society shall have power to:-- (a) Acquire and hold as purchasers, donees, devisees, or legatees or legatees or in any other capacity any interest in lands and tenements, accept, receive and hold any gifts, devises, bequests or subscriptions, either of real or personal estate; grant, lease, bargain, mortgage, sell, assign or otherwise dispose of any such lands or tenements or personal estate as in its opinion may be necessary and property for its purposes, provided that the land which may be so acquired and held by the society shall not exceed an annual value of $5,000.00; (b) Erect, construct, equip and maintain any building or works which it may deem necessary or convenient for the purposes of the society; (c) Form and establish branch societies and take over and establish any such existing society or association having similar objects in whole or in part with the society, and in all cases subject to such conditions and regulations as the society may deem expedient; (d) Do all such other matters and things as it may deem necessary for carrying out its purposes. 48

Prohibitions re holding out as Society, affiliated society 10. (1) No corporation or other entity, other than the

Society or an affiliated society, shall, (a)hold itself out as being the Society or an affiliated society having authority under this Act; or (b) use the name “humane society”, “society for the prevention of cruelty to animals” or “spca” or the equivalent of any of those names in any other language, alone or in combination with any other word, name, initial or description. 2008, c. 16, s. 6. Exception (2) Despite clause (1) (b), a corporation or other entity that was an affiliated society on April 3, 2008 may continue to use the name “humane society”, “society for the prevention of cruelty to animals” or “spca”, or the equivalent of any of those names in any other language, alone or in combination with any other word, name, initial or description, even if it is no longer an affiliated society. 2008, c. 16, s. 6. 49

What types of marks receive trademark protection? Trademark law provides the greatest protection to the marks,

which are distinctive, that is, out of the ordinary. Types of inherently distinctive marks include: unique logos (the Nike® swoosh); made up words (Kodak®); fanciful marks, words that give an imaginative image (Airstream® for motor homes); arbitrary marks, words that are surprising or unexpected (Apple® for computers); and suggestive marks, words that cleverly describe the qualities of the product or service (Contact® for self-adhesive shelf paper). Words that are common or ordinary receive less protection unless they have developed public recognition due to their long use in the market place. These type of marks are said to have acquired a secondary meaning. Generic marks are common words that describe the product itself and can not be protected by trademark laws. For example, the words Cheese and Noodles could not be protected by trademark if used on a food product consisting of cheese and macaroni. http://www.trademark.iastate.edu/basics/ 50

Trade Mark Act. http://laws-lois.justice.gc.ca/eng/regulations/SOR-96-195/index.html 51

Mr. M. O’Sullivan, With respect to the use of the name SPCA or humane society, it’s my respectful submission you don’t have the authority to do it. The federal trademark through Industry Canada, the charitable status that you get from the federal government, all trump what you want to do here at a provincial level. http://www.ontla.on.ca/web/committee-proceedings/committee_transcripts_details.do?locale=en&Date=2008-07-21&ParlCommID=8855&BillID=1979&Business=&DocumentID=23139 52

“…the charter declares, that none “shall be disseised of his free tenement, his liberties, or his free customs;” meaning that the King nor others shall not seize upon any of his possessions, and that a man shall not be put from his livelihood without answer. …; for when Henry VI, granted to the Company of Dyers in London, the privilege of searching for, and seizing upon any cloth dyed with logwood, it was decided that the forfeiture was contrary to the Law, …The word liberties has several significations; as the Laws of the realm, privileges bestowed by the King; and the natural freedom possessed by the subjects of England, for which cause monopolies… are against the enactments of the Great Charter.” Historical Essay on the Magna Carta, R. Thomson, 1829, p. 226-227

53

“The only individual salaries disclosed in the provincial Sunshine List are CEO MacDonald ($215,604 in salary and taxable benefits), CGO Stephenson ($139,151 in salary and taxable benefits) and chief operating officer Donald J. Sykes ($126,709 in salary and taxable benefits). The OSPCA has 80 “inspectors and agents” and a number of shelter workers and administrative staff. In addition to salaries, the OSPCA reports — but does not detail — that it paid $4.6 million in “professional and consulting fees” in 2010OSPCA keeps staff salaries secret while seeking cash infusion from Queen’s Park, Published on Tuesday September 04, 2012. http://www.thestar.com/news/gta/article/1251274--ospca-seeking-more-cash-from-queen-s-park-to-save-animals

http://www.carters.ca/pub/bulletin/charity/2010/chylb236.htm



http://www.trademark.iastate.edu/basics/

http://laws-lois.justice.gc.ca/eng/regulations/SOR-96-195/index.html



http://www.fin.gov.on.ca/en/publications/salarydisclosure/2012/



54

Dog breeder hearing draws political attention, Animal Care Review Board hearing pits rights of landowners versus animal rights. CBC News , Posted: Sep 25, 2012 7:16 PM ET. http://www.cbc.ca/news/canada/ottawa/story/2012/09/25/ottawa-ospca-enters-dog-breeders-home-dental-bill-hearing.html 55

Dog breeder hearing draws political attention, Animal Care Review Board hearing pits rights of landowners versus animal rights. CBC News , Posted: Sep 25, 2012 7:16 PM ET. http://www.cbc.ca/news/canada/ottawa/story/2012/09/25/ottawa-ospca-enters-dog-breeders-home-dental-bill-hearing.html 56

http://www.anticorruption-online.org/actions-against-corruptions/1376-spca-greed-a-world-wide-issue-are-we-going-to-condone-it 57

http://brindlestick.blogspot.ca/2011/09/reason-21-mcguinty-must-go.html 58

Regulations 22. (1) The Lieutenant Governor in Council may make regulations, (a) prescribing activities that constitute activities carried on in accordance with reasonable and generally accepted practices of agricultural animal care, management or husbandry for the purposes of clauses 11.1 (2) (a) and 11.2 (6) (c); (b) prescribing classes of animals, circumstances and conditions or activities for the purposes of clauses 11.1 (2) (b) and 11.2 (6) (d); (c) exempting any person or class of persons from any provision of this Act or of a regulation made under this Act, and prescribing conditions and circumstances for any such exemption. 2008, c. 16, s. 18. Same (2) The Minister responsible for the administration of this Act may make regulations, (a) prescribing and governing the powers and duties of the Chief Inspector of the Society, including the power to establish qualifications, requirements and standards for inspectors and agents of the Society, to appoint inspectors and agents of the Society and to revoke their appointments and generally to oversee the inspectors and agents of the Society in the performance of their duties; (b) prescribing standards of care for the purposes of section 11.1; (c) governing the report required under section 11.3, including its contents and the manner of making the report; (Veterinarians’ obligation to report 11.3 Every veterinarian who has reasonable grounds to believe that an animal has been or is being abused or neglected shall report his or her belief to an inspector or an agent of the Society. 2008, c. 16, s. 8.) (d) prescribing forms for the information on oath required by subsection 11.5 (1), 12 (1) or 14 (1.1), for a warrant issued under subsection 11.5 (1) or 12 (1) and for an order issued under subsection 14 (1.1) or (1.4); (e) governing applications for and the issue of warrants by telephone or other means of telecommunication for the purposes of subsections 11.5 (1.1) and 12 (2), prescribing the forms required to apply for a warrant under those subsections and the forms for the warrants issued under those subsections, prescribing rules for the execution of such warrants and prescribing evidentiary rules with respect to such warrants; (f) prescribing a period of time for the purpose of section 15.1; (g) governing the service of orders, notices and statements of account for the purposes of section 20. 2008, c. 16, s. 18; 2009, c. 33, Sched. 9, s. 9 (7). 59

HER MAJESTY THE QUEEN V. Baker Court of Appeal for Ontario DATE: 20041012, DOCKET: C41485 60

http://www.merriam-webster.com/dictionary/distress 61

Object, 3. The object of the Society is to facilitate and provide for the prevention of cruelty to animals and their

protection and relief therefrom. R.S.O. 1990, c. O.36, s. 3. 62

OBJECT - Black’s Law Dictionary, 9th

Edition, 2009, p. 1177 – 1. A person or thing to which thought, feeling, or action is directed <the natural object of one’s bounty>. 2. Something sought to be attained or accomplished; an end, goal, or purpose <the financial objects of the joint venture>. 63

Ms. Stephanie Brown, CANADIAN COALITION FOR FARM ANIMALS http://www.ontla.on.ca/web/committee-proceedings/committee_transcripts_details.do?locale=en&Date=2008-07-21&ParlCommID=8855&BillID=1979&Business=&DocumentID=23139 “The vast majority of animals in Ontario are those raised for food—more than 220 million in 2007. “ Committee Transcripts: Standing Committee on Justice Policy - July 21, 2008 - Bill 50, Provincial Animal Welfare Act, 2008, 64

Niagara Escarpment Planning and Development Act, R.S.O. 1990, Chapter N.2, Consolidation Period: From June

20, 2012 to the e-Laws currency date. 65

Chief Inspector 6.1 (1) The Society shall appoint an employee of the Society as the Chief Inspector. 2008, c. 16,

s. 5.

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Powers, duties (2) In addition to the powers and duties of an inspector or an agent of the Society, the Chief Inspector shall have the powers and duties that may be prescribed by regulation, including the power to establish qualifications, requirements and standards for inspectors and agents of the Society, to appoint inspectors and agents of the Society and to revoke their appointments and generally to oversee the inspectors and agents of the Society in the performance of their duties. 2008, c. 16, s. 5. Same (3) The Chief Inspector of the Society may have additional powers and duties as are provided in the by-laws of the Society. 2008, c. 16, s. 5. 66

[21] Under s. 42(1) of the Police Services Act, R.S.O. 1990, c. P.15 (hereinafter the “PSA”), the duties of a police officer include preserving the peace, executing warrants that are to be executed by police officers and performing related duties. The OSPCA officers are peace officers under s. 11 of the OSPCAA, and the assistance of the O.P.P. in executing the warrant they had obtained could be considered a related duty under the PSA. As peace officers, the OSPCA officers were entitled to enlist the aid of unnamed peace officers: See Strachan, supra; R. v. Fekete reflex, (1985), 17 C.C.C. (3d) 188 (Ont. C.A.); R. v. B. (J.E.) (1989), 52 C.C.C. (3d) 244 (N.S.C.A.) (involving an unnamed social worker who assisted in the execution of a warrant). HER MAJESTY THE QUEEN V. Baker Court of Appeal for Ontario DATE: 20041012, DOCKET: C41485 67

Inspectors and agents Powers of police officer 11. (1) For the purposes of the enforcement of this Act or any

other lawin force in Ontario pertaining to the welfare of or the prevention of cruelty to animals, every inspector and agent of the Society has and may exercise any of the powers of a police officer 2008, c. 16, s. 7 (1). 68

Criminal Code of Canada: Cattle and Other Animals, Injuring or endangering cattle. 69

6. For the purpose of the enforcement of the provision of this or any other Act for the prevention of cruelty to animals, any inspector or agent of the society shall have the power of a constable in any municipality or district in Ontario, and the society shall be entitled to the assistance of all magistrates, Crown attorneys, sheriffs, constables and police officers in and for the enforcement of such statutes. 70

“Criminal Code of Canada: Cattle and Other Animals, Injuring or endangering cattle 444. (1) Every one commits an offence who willfully: (a) kills, maims, wounds, poisons or injures cattle; or (b) places poison in such a position that it may easily be consumed by cattle. Injuring or endangering other animals 445. (1) Every one commits an offence who, wilfully and without lawful excuse, (a) kills, maims, wounds, poisons or injures dogs, birds or animals that are not cattle and are kept for a lawful purpose; or (b) places poison in such a position that it may easily be consumed by dogs, birds or animals that are not cattle and are kept for a lawful purpose. Cruelty to Animals Causing unnecessary suffering 445.1 (1) Every one commits an offence who (a) wilfully causes or, being the owner, wilfully permits to be caused unnecessary pain, suffering or injury to an animal or a bird; (b) in any manner encourages, aids or assists at the fighting or baiting of animals or birds; (c) wilfully, without reasonable excuse, administers a poisonous or an injurious drug or substance to a domestic animal or bird or an animal or a bird wild by nature that is kept in captivity or, being the owner of such an animal or a bird, wilfully permits a poisonous or an injurious drug or substance to be administered to it; (d) promotes, arranges, conducts, assists in, receives money for or takes part in any meeting, competition, exhibition, pastime, practice, display or event at or in the course of which captive birds are liberated by hand, trap, contrivance or any other means for the purpose of being shot when they are liberated; or (e) being the owner, occupier or person in charge of any premises, permits the premises or any part thereof to be used for a purpose mentioned in paragraph (d). (3) For the purposes of proceedings under paragraph (1)(a), evidence that a person failed to exercise reasonable care

70 or supervision of an animal or a bird thereby causing it pain, suffering or injury is, in the absence of any

evidence to the contrary, proof that the pain, suffering or injury was caused or was permitted to be caused wilfully, as the case may be. Presence at baiting as evidence (4) For the purpose of proceedings under paragraph (1)(b), evidence that an accused was present at the fighting or baiting of animals or birds is, in the absence of any evidence to the contrary, proof that he or she encouraged, aided or assisted at the fighting or baiting. Causing damage or injury 446. (1) Every one commits an offence who (a) by wilful neglect

70 causes damage or injury to animals or birds while they are being driven or conveyed; or

(b) being the owner or the person having the custody or control of a domestic animal or a bird or an animal or a bird wild by nature that is in captivity, abandons it in distress

70 or wilfully neglects or fails to provide suitable and adequate

food, water, shelter and care for it. Failure to exercise reasonable care as evidence (3) For the purposes of proceedings under paragraph (1)(a), evidence that a person failed to exercise reasonable care or supervision of an animal or a bird thereby causing it



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damage or injury is, in the absence of any evidence to the contrary, proof that the damage or injury was caused by wilful neglect. R.S., 1985, c. C-46, s. 446;2008, c. 12, s. 1. Keeping cockpit 447. (1) Every one commits an offence who builds, makes, maintains or keeps a cockpit on premises that he or she owns or occupies, or allows a cockpit to be built, made, maintained or kept on such premises. Confiscation (3) A peace officer who finds cocks in a cockpit or on premises where a cockpit is located shall seize them and take them before a justice who shall order them to be destroyed. R.S., 1985, c. C-46, s. 447;2008, c. 12, s. 1. Order of prohibition or restitution 447.1 (1) The court may, in addition to any other sentence that it may impose under subsection 444(2), 445(2), 445.1(2), 446(2) or 447(2), (a) make an order prohibiting the accused from owning, having the custody or control of or residing in the same premises as an animal or a bird during any period that the court considers appropriate but, in the case of a second or subsequent offence, for a minimum of five years; and (b) on application of the Attorney General or on its own motion, order that the accused pay to a person or an organization that has taken care of an animal or a bird as a result of the commission of the offence the reasonable costs that the person or organization incurred in respect of the animal or bird, if the costs are readily ascertainable. Breach of order (2) Every one who contravenes an order made under paragraph (1)(a) is guilty of an offence punishable on summary conviction.” 71

Inspectors and agents of affiliates (2) Every inspector and agent of an affiliated society who has been appointed by

the Society or by the Chief Inspector of the Society may exercise any of the powers and perform any of the duties of an inspector or an agent of the Society under this Act and every reference in this Act to an inspector or an agent of the Society is deemed to include a reference to an inspector or agent of an affiliated society who has been appointed by the Society or by the Chief Inspector of the Society. 2008, c. 16, s. 7 (2). 72

Local police powers (3) In any part of Ontario in which the Society or an affiliated society does not function, any

police officer having jurisdiction in that part has and may exercise any of the powers of an inspector or agent of the Society under this Act. R.S.O. 1990, c. O.36, s. 11 (3). 73

Identification (4) An inspector or an agent of the Society who is exercising any power or performing any duty

under this Act shall produce, on request, evidence of his or her appointment. 2008, c. 16, s. 7 (3). 74

17. prescribing standards of dress for police officers on duty and prescribing requirements respecting police uniforms; 75

http://www.cbc.ca/news/canada/newfoundland-labrador/story/2012/12/31/nl-animal-protection-spca-1231.html 76

Interfering with inspectors, agents (5) No person shall hinder, obstruct or interfere with an inspector or an agent of

the Society in the performance of his or her duties under this Act. 2008, c. 16, s. 7 (3). 77

Nuisances, Common nuisance 180. (1) Every one who commits a common nuisance and thereby (a) endangers the lives, safety or health of the public, or (b) causes physical injury to any person, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. Definition (2) For the purposes of this section, every one commits a common nuisance who does an unlawful act or fails to discharge a legal duty and thereby (a) endangers the lives, safety, health, property or comfort of the public; or (b) obstructs the public in the exercise or enjoyment of any right that is common to all the subjects of Her Majesty in Canada.







78

From: Ruth Marks, Sent: November 26, 2008 5:00 PM, Subject: To all agents and inspectors, Sent on Behalf of

Chief Coghill: TO ALL ONTARIO SPCA AGENTS AND INSPECTORS Over the past two weeks, I have had three different complaints from across Ontario regarding Agents/Inspectors activities and attitudes while conducting an investigation. It is very important that we all remember to treat people and private property with RESPECT. It is inappropriate to start an investigation by entering private property to search for an animal that may be in distress, without the consent of the owner. Your invitation to knock does not extend beyond the door of the house/apartment, or a reasonable inquiry. Please re-read R. vs REIMER which is posted on the Investigations Secure Website. This also applies to rural calls. You must make a reasonable enquiry at the house. If there is no one home, you should leave a card for the owner to call you. The Ontario SPCA Act states: Entry without warrant (2) <http://www.e-laws.gov.on.ca/DBLaws/Statutes/French/90o36_f.htm> Where an inspector or agent of the Society observes an animal in immediate distress, he or she may enter without a warrant any premises, building or place, other than a dwelling place, either alone or accompanied by one or more veterinarians or other persons as he or she considers advisable, for the purposes of subsections (3) and (5) and sections 13 and 14. 2006, c. 19, Sched. F, s. 1 (2). Bill 50 will include a definition of IMMEDIATE DISTRESS as: "immediate distress" means distress that requires immediate intervention in order to alleviate suffering or to preserve life. In other words, a life threatening situation! None of the above legislation gives us the authority to search fields, forests or farms buildings. We must all RESPECT: people and private property! Hugh Coghill, Chief Inspector, Ontario Society for the Prevention of Cruelty to Animals 16586 Woodbine Ave RR 3 Newmarket ON L3Y 4W1 tel: 905-898-7122 or 1-888-668-7722 ext:342 fax: 905-898-2167 [email protected] <mailto:[email protected]> www.ontariospca.ca <http://www.ontariospca.ca/> 79

Her Majesty the Queen v. R. Reimer, p. 1 80



“[28] It is well known that the local affiliate, the Hamilton-Burlington S.P.C.A., has surrendered its animal control programme and its funding to the City of Hamilton and now acts primarily in the field of investigating possible charges, [Criminal Code or Provincial Offences Act], pursuant to the Ontario Society for the Prevention of Cruelty to Animals Act. It hires its own agents and inspectors, determines the parameters of their employment, and using aforementioned police powers, enters property, seizes animals as in this case (without warrant or judicial intervention) and lays charges – all the while attending to its own need to fund raise. In order to do the latter, it relies heavily on the publicity it can glean from high profile seizures and charges. Indeed, there is a communications branch tasked with this. It is a not-for-profit organization and a registered charity. Without publicity and high profile charges, the funds the S.P.C.A. needs to operate would no doubt dry up. [31] The evidence in this case, taken at its highest for the Crown even without being put through the filter of credibility assessment, does not meet the standard of proof required. The perception of bias that looms over all the Crown evidence of this case is like a stake to the heart – totally damaging the Crown’s ability to prove its case. [32] It would be unreasonable and dangerous to convict on this evidence and I refuse to do so. The charge is dismissed.” R. v. Pauliuk, 2005 ONCJ 119, p. 10 83

http://www.cbc.ca/news/canada/toronto/story/2012/10/10/ontario-zoos-aquariums-animals-regulations.html 84

POLICE OFFICERS: Duties of police officer, 42. (1) The duties of a police officer include, Powers and duties of common law constable (3) A police officer has the powers and duties ascribed to a constable at common law. R.S.O. 1990, c. P.15, s. 42 (2, 3). 85


Melville Musson v. Ontario Society for the Prevention of Cruelty to Animals, Court file #07-119 SCC, Oct. 3, 2207, p. 2.

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Melville Musson v. Ontario Society for the Prevention of Cruelty to Animals, Court file #07-119 SCC, Oct. 3, 2207, p. 5. 88

Police Services Act “police officer” means a chief of police or any other police officer, including a person who is appointed as a police officer under the Interprovincial Policing Act, 2009, but does not include a special constable, a First Nations Constable, a municipal law enforcement officer or an auxiliary member of a police force. 89

Criminal Code, RSC 1985, c C-46 90

Standards of care for animals

11.1 (1) Every person who owns or has custody or care of an animal shall comply with the prescribed standards of care with respect to every animal that the person owns or has custody or care of. 2008, c. 16, s. 8. 91

Exception (2) Subsection (1) does not apply in respect of, (a) an activity carried on in accordance with reasonable

and generally accepted practices of agricultural animal care, management or husbandry; or (b) a prescribed class of animals or animals living in prescribed circumstances or conditions, or prescribed activities. 2008, c. 16, s. 8. 92

Last Updated Thursday, Aug. 30, 2012 8:02PM EDT Questions are being raised about the treatment of animals at the Newmarket OSPCA after an MPP said that animals were being killed due to a ringworm outbreak. The comment came from PC MPP Frank Klees, who charged during question period Thursday that an entire population of animals will be killed because of a ringworm outbreak and other illnesses at the shelter. The Newmarket OSPCA released a statement saying it is not experiencing outbreaks of disease at any of its facilities, though some animals are ill when they arrive. “Many animals are quite ill or suffering from the effects of neglect or abuse when they come to the Ontario SPCA for care,” senior communications manager Alison Cross said in a statement. Klees, however, said that his information is correct and it comes from three former OSPCA employees who were fired after protesting the number of animals being euthanized. The former employees insist that between 40 to 70 animals are being euthanized every week at the Newmarket shelter. This isn’t the first time the Newmarket OSPCA has been in the spotlight. Two years ago, the organization came under scrutiny for killing animals that had ringworm. With files from CTV Toronto’s Paul Bliss Read more: http://toronto.ctvnews.ca/animal-treatment-at-newmarket-ospca-questioned-1.937136#ixzz2HEDnJEWz 93

Same (3) Subsection (1) does not apply to, (a) a veterinarian providing veterinary care, or boarding an animal as part of its care, in accordance with the standards of practice established under the Veterinarians Act; (b) a person

acting under the supervision of a veterinarian described in clause (a); or (c) a person acting under the orders of a veterinarian described in clause (a), but only in respect of what the person does or does not do in following those orders. 2008, c. 16, s. 8. 94

Accredited veterinary facilities (7) The power to enter and inspect a building or place under subsection (6) shall not be exercised to enter and inspect a building or place that is an accredited veterinary facility. 2008, c. 16, s. 9. 95

(6) If an inspector or an agent of the Society has reasonable grounds to believe that there is an animal that is in immediate distress in any building or place, other than a dwelling, he or she may enter the building or place without a warrant, either alone or accompanied by one or more veterinarians or other persons as he or she considers advisable, and inspect the building or place and all the animals found there for the purpose of ascertaining whether there is any animal in immediate distress. 2008, c. 16, s. 9. 96

Prohibitions re distress, harm to an animal: Causing distress; 11.2 (1) No person shall cause an animal to be in

distress. 2008, c. 16, s. 8. Permitting distress: (2) No owner or custodian of an animal shall permit the animal to be in distress. 2008, c. 16, s. 8. Training, permitting animals to fight; (3) No person shall train an animal to fight with another animal or permit an animal that the person owns or has custody or care of to fight another animal. 2008, c. 16, s. 8. Owning animal fighting equipment, structures: (4) No person shall own or have possession of equipment or structures that are used in animal fights or in training animals to fight. 2008, c. 16, s. 8. Harming law enforcement animals; (5) No person shall harm or cause harm to a dog, horse or other animal that works with peace officers in the execution of their duties, whether or not the animal is working at the time of the harm. 2008, c. 16, s. 8.



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Ontario Society for the Prevention of Cruelty to Animals Act, ONTARIO REGULATION 62/09 EXEMPTIONS, CONSOLIDATION PERIOD: FROM MARCH 3, 2009 TO THE E-LAWS CURRENCY DATE.

No amendments. Exemptions 1. Subsections 11.2 (1) and (2) of the Act do not apply to, (a) persons who are hunting as permitted under the Fish and Wildlife Conservation Act, 1997, other than as described in clause 11.2 (6) (a) of the Act; or (b) persons who permit hunting as described in clause (a). O. Reg. 62/09, s. 1. 98

Ab Absurdo; Latin: an evidentiary suggestion or statutory interpretation that is, or leads to, an absurdity. An example of an ab absurdo interpretation of a statute or of a contract would be where the conclusion empties the phrase under scrutiny of no effect whatsoever. Neither the legislature nor persons who sign contracts can intend that a phrase of their contract have no effect whatsoever and so therefore, such an interpretation would be ab absurdo. http://www.duhaime.org/LegalDictionary/A/AbAbsurdo.aspx 99

Fuller, L. L. (1964) The Morality of Law, New Haven, CT, Yale University Press, pp. 33. 100

Veterinarians’ obligation to report 11.3 Every veterinarian who has reasonable grounds to believe that an animal has been or is being abused or

neglected shall report his or her belief to an inspector or an agent of the Society. 2008, c. 16, s. 8. 101

PART II, PRACTICE STANDARDS 17. (1) FOR THE PURPOSES OF THE ACT, PROFESSIONAL

MISCONDUCT INCLUDES THE FOLLOWING: 6.Revealing information concerning a client, an animal or any professional service performed for an animal, to any person other than the client or another member treating the animal except, i. with the consent of the client, ii. when required to do so by law, iii. to prevent, or contribute information for the treatment of, a disease or physical injury of a person, iv. when it appears that the animal has been abused, or v. for the purpose of identifying, locating or notifying the apparent owner of the animal, protecting the rights of the apparent owner or enforcing applicable laws in respect of the animal, where it appears that the animal is not owned by the person presenting it for treatment. 102

Inspection – places used for animal exhibit, entertainment, boarding, hire or sale

11.4 (1) An inspector or an agent of the Society may, without a warrant, enter and inspect any building or place used for animal exhibit, entertainment, boarding, hire or sale, either alone or accompanied by one or more veterinarians or other persons as he or she considers advisable, in order to determine whether the standards of care prescribed for the purpose of section 11.1 are being complied with. 2008, c. 16, s. 8. 103

Dwellings

(2) The power to enter and inspect a building or place under this section shall not be exercised to enter and inspect a building or place used as a dwelling except with the consent of the occupier. 2008, c. 16, s. 8. 104

Accredited veterinary facilities (3) The power to enter and inspect a building or place under this section shall not be exercised to enter and inspect a building or place that is an accredited veterinary facility. 2008, c. 16, s. 8. 105

Time of entry

(4) The power to enter and inspect a building or place under this section may be exercised only between the hours of 9 a.m. and 5 p.m., or at any other time when the building or place is open to the public. 2008, c. 16, s. 8. 106

Identification, (4) An inspector or an agent of the Society who is exercising any power or performing any duty

under this Act shall produce, on request, evidence of his or her appointment. 2008, c. 16, s. 7 (3). 107

Township of Perth East, Report to Council, prepared by Grant Schwartzentruber, CBO and Kristen Bickers, Municipal Law Enforcement Officer, Sept. 4, 2012 108

Animal rights activists clash with Amish kennel owners in Perth County, Dec 19, 2012 A battle between animal rights activists and Amish kennel owners spilled over into a crowded township meeting Tuesday night, with an Amish bishop losing a bid to delay his municipality from taking... PERTH EAST — The couple at the centre of a firestorm over Amish dog kennels are hoping their township won’t try to remove 30 dogs from their farm today, ahead of their court battle next month. Meanwhile, the woman behind a campaign to shut down their kennel and others like it denies she’s in a conflict of interest because she’s the animal control officer for a neighbouring township. Kimberly Thomas is paid by the Township of Zorra to catch stray dogs and collect tagging fees. In her own time, she’s been pressuring Wellesley and Perth East townships to crack down on what she considers “puppy mills” — licensed,


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Amish-run dog kennels. She’s also a licensed kennel owner who runs an adoption service for rescue dogs, but makes the bulk of her income through her dog boarding service. Thu Dec 20 2012 09:20:00 http://www.therecord.com/news/local/article/856885--amish-couple-fight-to-keep-dogs-after-losing-kennel-licence , 109

Powers on inspection

(5) An inspector or an agent of the Society conducting an inspection under this section may, (a) demand the production for inspection of a record or thing that is relevant to the inspection; and (b) examine a record or thing that is relevant to the inspection. 2008, c. 16, s. 8. 110

“Contrary to what is stated on the form, you will not be required to provide any income or expense information if you, as owner, are the sole occupant of the property.” MPAC, letter, dated May 31, 2011 Larry Hummel, Valuation and Customer Relations, Business Properties 111

Warrant – places used for animal exhibit, entertainment, boarding, hire or sale 11.5 (1) A justice of the peace or provincial judge may issue a warrant authorizing one or more inspectors or

agents of the Society named in the warrant to enter a building or place specified in the warrant, either alone or accompanied by one or more veterinarians or other persons as the inspectors or agents consider advisable, and to inspect the building or place and do anything authorized under section 11.4 if the justice of the peace or provincial judge is satisfied by information on oath that, (a) an inspector or an agent of the Society has been prevented from entering or inspecting the building or place

under section 11.4; or (b) there are reasonable grounds to believe that an inspector or an agent of the Society will be prevented from

entering or inspecting the building or place under section 11.4. 2008, c. 16, s. 8. 112

Telewarrant

(1.1) If an inspector or an agent of the Society believes that it would be impracticable to appear personally before a justice of the peace or provincial judge to apply for a warrant under subsection (1), he or she may, in accordance with the regulations, seek the warrant by telephone or other means of telecommunication, and the justice of the peace or provincial judge may, in accordance with the regulations, issue the warrant by the same means. 2009, c. 33, Sched. 9, s. 9 (2). 113

When warrant to be executed

(2) Every warrant issued under subsection (1) or (1.1) shall, (a) specify the times, which may be at any time during the day or night, during which the warrant may be carried

out; and (b) state when the warrant expires. 2008, c. 16, s. 8; 2009, c. 33, Sched. 9, s. 9 (3). 114

Extension of time

(3) A justice of the peace or provincial judge may extend the date on which a warrant issued under this section expires for no more than 30 days, upon application without notice by the inspector or agent named in the warrant. 2008, c. 16, s. 8. 115

Other terms and conditions

(4) A warrant issued under this section may contain terms and conditions in addition to those provided for in subsections (1) to (3) as the justice of the peace or provincial judge considers advisable in the circumstances. 2008, c. 16, s. 8. 116

Entry where animal is in distress, Warrant 12. (1) If a justice of the peace or provincial judge is satisfied by information on oath that there are reasonable grounds to believe that there is in any building or place an animal that is in distress, he or she may issue a warrant

authorizing one or more inspectors or agents of the Society named in the warrant to enter the building or place, either alone or accompanied by one or more veterinarians or other persons as the inspectors or agents consider advisable, and inspect the building or place and all the animals found there for the purpose of ascertaining whether there is any animal in distress. 2008, c. 16, s. 9. Telewarrant

(2) If an inspector or an agent of the Society believes that it would be impracticable to appear personally before a justice of the peace or provincial judge to apply for a warrant under subsection (1), he or she may, in accordance with the regulations, seek the warrant by telephone or other means of telecommunication, and the justice of the peace or provincial judge may, in accordance with the regulations, issue the warrant by the same means. 2008, c. 16, s. 9. When warrant to be executed

(3) Every warrant issued under subsection (1) or (2) shall,

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(a) specify the times, which may be at any time during the day or night, during which the warrant may be carried

out; and (b) state when the warrant expires. 2008, c. 16, s. 9. Extension of time

(4) A justice of the peace or provincial judge may extend the date on which a warrant issued under this section expires for no more than 30 days, upon application without notice by the inspector or agent named in the warrant. 2008, c. 16, s. 9. Other terms and conditions

(5) A warrant issued under subsection (1) or (2) may contain terms and conditions in addition to those provided for in subsections (1) to (4) as the justice of the peace or provincial judge considers advisable in the circumstances. 2008, c. 16, s. 9. 117

Immediate distress – entry without warrant

(6) If an inspector or an agent of the Society has reasonable grounds to believe that there is an animal that is in immediate distress in any building or place, other than a dwelling, he or she may enter the building or place without a warrant, either alone or accompanied by one or more veterinarians or other persons as he or she considers advisable, and inspect the building or place and all the animals found there for the purpose of ascertaining whether there is any animal in immediate distress. 2008, c. 16, s. 9. 118

From: Ruth Marks, Sent: November 26, 2008 5:00 PM, Subject: To all agents and inspectors, Sent on Behalf of Chief Coghill: 119

Definition – immediate distress

(8) For the purpose of subsection (6), “immediate distress” means distress that requires immediate intervention in order to alleviate suffering or to preserve

life. 2008, c. 16, s. 9. 120

Accredited veterinary facilities

(7) The power to enter and inspect a building or place under subsection (6) shall not be exercised to enter and inspect a building or place that is an accredited veterinary facility. 2008, c. 16, s. 9. 121

Authorized activities Inspect animals, take samples, etc. 12.1 (1) An inspector or an agent of the Society or a veterinarian, who is lawfully present in a building or place

under the authority of any provision of this Act or of a warrant issued under this Act, may examine any animal there and, upon giving a receipt for it, take a sample of any substance there or take a carcass or sample from a carcass there, for the purposes set out in the provision under which the inspector’s, agent’s or veterinarian’s presence is authorized or the warrant is issued. 2008, c. 16, s. 9. Same

(2) An inspector, agent or veterinarian who takes a sample or carcass under subsection (1) may conduct tests and analyses of the sample or carcass for the purposes described in subsection (1) and, upon conclusion of the tests and analyses, shall dispose of the sample or carcass. 2008, c. 16, s. 9; 2009, c. 33, Sched. 9, s. 9 (4). 122

Supply necessaries to animals

(3) If an inspector or an agent of the Society is lawfully present in a building or place under the authority of any provision of this Act or of a warrant issued under this Act and finds an animal in distress, he or she may, in addition to any other action he or she is authorized to take under this Act, supply the animal with food, care or treatment. 2008, c. 16, s. 9. 123

Seizure of things in plain view (4) An inspector or an agent of the Society who is lawfully present in a building or place under the authority of

any provision of this Act or of a warrant issued under this Act may, upon giving a receipt for it, seize any thing that is produced to the inspector or agent or that is in plain view if the inspector or agent has reasonable grounds to believe, (a) that the thing will afford evidence of an offence under this Act; or (b) that the thing was used or is being used in connection with the commission of an offence under this Act and

that the seizure is necessary to prevent the continuation or repetition of the offence. 2008, c. 16, s. 9. 124

Report to justice, judge

(5) An inspector or an agent of the Society shall, (a) report the taking of a sample or a carcass under subsection (1) to a justice of the peace or provincial judge;

and












(b) bring any thing seized under subsection (4) before a justice of the peace or provincial judge or, if that is not

reasonably possible, report the seizure to a justice of the peace or provincial judge. 2008, c. 16, s. 9. 125

Order to detain, return, dispose of thing

(6) Where any thing is seized and brought before a justice of the peace or provincial judge under subsection (5), the justice of the peace or provincial judge shall by order, (a) detain it or direct it to be detained in the care of a person named in the order; (b) direct it to be returned; or (c) direct it to be disposed of, in accordance with the terms set out in the order. 2008, c. 16, s. 9. 126

Same

(7) In an order made under clause (6) (a) or (b), the justice of the peace or provincial judge may, (a) authorize the examination, testing, inspection or reproduction of the thing seized, on the conditions that are

reasonably necessary and are directed in the order; and (b) make any other provision that, in his or her opinion, is necessary for the preservation of the thing. 2008, c. 16,

s. 9. 127

Application of Provincial Offences Act 12.1 (8) Subsections 159 (2) to (5) and section 160 of the Provincial Offences Act apply with necessary

modifications in respect of a thing seized by an inspector or an agent of the Society under subsection (4). 2008, c. 16, s. 9. 128

OSPCA v. Earl Lake 129

OSPCA v. Earl Lake 130

Order to owner of animals, etc. 13. (1) Where an inspector or an agent of the Society has reasonable grounds for believing that an animal is in

distress and the owner or custodian of the animal is present or may be found promptly, the inspector or agent may order the owner or custodian to, (a) take such action as may, in the opinion of the inspector or agent, be necessary to relieve the animal of its

distress; or (b) have the animal examined and treated by a veterinarian at the expense of the owner or custodian. R.S.O.

1990, c. O.36, s. 13 (1). 131

Order to be in writing

(2) Every order under subsection (1) shall be in writing and shall have printed or written thereon the provisions of subsections 17 (1) and (2). R.S.O. 1990, c. O.36, s. 13 (2). (3) REPEALED: 2008, c. 16, s. 10 (1). 132

Time for compliance with order (4) An inspector or an agent of the Society who makes an order under subsection (1) shall specify in the order the time within which any action required by the order shall be performed. R.S.O. 1990, c. O.36, s. 13 (4). 133

Idem (5) Every person who is served with an order under subsection (1) shall comply with the order in accordance with its terms until such time as it may be modified, confirmed or revoked and shall thereafter comply with the order as modified or confirmed. R.S.O. 1990, c. O.36, s. 13 (5); 2008, c. 16, s. 10 (2). 134

Authority to determine compliance with order (6) If an order made under subsection (1) remains in force, an inspector or an agent of the Society may enter without a warrant any building or place where the animal that is the subject of the order is located, either alone or accompanied by one or more veterinarians or other persons as he or she considers advisable, and inspect the animal and the building or place for the purpose of determining whether the order has been complied with. 2008, c. 16, s. 10 (3). 135

Revocation of order

(7) If, in the opinion of an inspector or an agent of the Society, the order made under subsection (1) has been complied with, he or she shall revoke the order and shall serve notice of the revocation in writing forthwith on the owner or custodian of the animal that is the subject of the order. 2008, c. 16, s. 10 (3).












136

Taking possession of animal 14. (1) An inspector or an agent of the Society may remove an animal from the building or place where it is and

take possession thereof on behalf of the Society for the purpose of providing it with food, care or treatment to relieve its distress where, (a) a veterinarian has examined the animal and has advised the inspector or agent in writing that the health and

well-being of the animal necessitates its removal; (b) the inspector or agent has inspected the animal and has reasonable grounds for believing that the animal is in

distress and the owner or custodian of the animal is not present and cannot be found promptly; or (c) an order respecting the animal has been made under section 13 and the order has not been complied with.

R.S.O. 1990, c. O.36, s. 14 (1). 137

Order for Society to keep animal (1.1) A justice of the peace or provincial judge may make an order authorizing

the Society to keep in its care an animal that was removed under subsection (1) if, (a) the owner or custodian of the animal has been charged, in connection with the same fact situation that gave

rise to the removal of the animal under subsection (1), with an offence under this Act or any other law in force in Ontario pertaining to the welfare of or the prevention of cruelty to animals; and

(b) the justice of the peace or provincial judge is satisfied by information on oath that there are reasonable grounds to believe that the animal may be harmed if returned to its owner or custodian. 2008, c. 16, s. 11 (1).

138

Order re costs (1.2) Where a justice of the peace or provincial judge makes an order under subsection (1.1), he or she may also order that the whole or any part of the cost to the Society of providing food, care or treatment to the animal pursuant to its removal under subsection (1) and pursuant to the order under subsection (1.1) be paid by the owner or custodian of the animal to the Society. 2008, c. 16, s. 11 (1). 139

OSPCA keeps staff salaries secret while seeking cash infusion from Queen’s Park, The only individual salaries disclosed in the provincial Sunshine List are CEO MacDonald ($215,604 in salary and taxable benefits), CGO Stephenson ($139,151 in salary and taxable benefits) and chief operating officer Donald J. Sykes ($126,709 in salary and taxable benefits). The OSPCA has 80 “inspectors and agents” and a number of shelter workers and administrative staff. In addition to salaries, the OSPCA reports — but does not detail — that it paid $4.6 million in “professional and consulting fees” in 2010. Published on Tuesday September 04, 2012 , http://www.thestar.com/news/gta/article/1251274--ospca-seeking-more-cash-from-queen-s-park-to-save-animals 140

Mike Draper is employed with the Animal Health and Welfare Branch of the Ministry of Agriculture, Food and Rural Affairs (OMAFRA). Mike is responsible for conducting inspections at Ontario’s 42 livestock community sales facilities, which auction over 1 million animals each year, and for the enforcement of the Beef Cattle Marketing Act at abattoirs in Ontario. Prior to his employment with OMAFRA, he was employed as Chief Inspector of the Ontario Society for the Prevention of Cruelty to Animals (OSPCA). Building the Foundation, 2010 Dairy and Veal, Healthy Calf Conference, p. 5. 141

Same

(1.3) The Society or owner or custodian of the animal may at any time apply to a justice of the peace or provincial judge to vary an order made under subsection (1.2) and the justice of the peace or provincial judge may make such order as he or she considers appropriate. 2008, c. 16, s. 11 (1). 142

Order to return animal (1.4) The Society or the owner or custodian may apply to a justice of the peace or provincial judge to order the return of an animal that is the subject of an order made under subsection (1.1) and, if satisfied that there are no longer reasonable grounds to believe that the animal may be harmed if returned to its owner or custodian, the justice of the peace or provincial judge may order the return of the animal to its owner or custodian, subject to any conditions that the justice of the peace or provincial judge considers appropriate. 2008, c. 16, s. 11 (1). 143

Destruction of animal (2) An inspector or an agent of the Society may destroy an animal, (a) with the consent of the owner; or (b) if a veterinarian has examined the animal and has advised the inspector or agent in writing that, in his or her

opinion, it is the most humane course of action. R.S.O. 1990, c. O.36, s. 14 (2); 2008, c. 16, s. 11 (2). 144

Notice (3) An inspector or an agent of the Society who has removed or destroyed an animal under subsection (1) or (2) shall forthwith serve written notice of his or her action on the owner or custodian of the animal, if known. 2008, c. 16, s. 11 (3).




http://www.fin.gov.on.ca/en/publications/salarydisclosure/2012/







145

Same (4) Every notice under subsection (3) respecting the removal of an animal under subsection (1) shall have printed or written on it the provisions of subsections 17 (1) and (2). 2009, c. 33, Sched. 9, s. 9 (5). 146

Appeal to Board 17. (1) The owner or custodian of any animal who considers themself aggrieved by an order made under subsection 13 (1) or by the removal of an animal under subsection 14 (1) may, within five business days of receiving notice of the order or removal, appeal against the order or request the return of the animal by notice in writing to the chair of the Board. R.S.O. 1990, c. O.36, s. 17 (1); 1993, c. 27, Sched.; 2006, c. 19, Sched. F, s. 3 (1). 147

Liability of owner for expenses

15. (1) If an inspector or an agent of the Society has provided an animal with food, care or treatment, the Society may serve on the owner or custodian of the animal a statement of account respecting the food, care or treatment and the owner or custodian is, subject to an order made under subsection 14 (1.2) or (1.3) or 17 (6), liable for the amount specified in the statement of account. 2008, c. 16, s. 12. 148

Power to sell

(2) Where the owner or custodian refuses to pay an account under subsection (1) within five business days after service of the statement of account or where the owner or custodian, after reasonable inquiry, cannot be found, the Society may sell or dispose of the animal and reimburse itself out of the proceeds, holding the balance in trust for the owner or other person entitled thereto. R.S.O. 1990, c. O.36, s. 15 (2); 2006, c. 19, Sched. F, s. 2 (2). 149

Society, affiliated society deemed to be owner of abandoned animal

15.1 If the Society or an affiliated society takes custody of an animal and no person is identified as the animal’s owner or custodian within a prescribed period of time, the Society or affiliated society, as the case may be, is deemed to be the owner of the animal for all purposes. 2008, c. 16, s. 13. 150

R. v. Pauliuk, 2005 ONCJ 119, by Justice Zuraw 151

Board continued 16. (1) The Animal Care Review Board is continued under the name Animal Care Review Board in English and

Commission d’étude des soins aux animaux in French. R.S.O. 1990, c. O.36, s. 16 (1). Idem

(2) The Board shall consist of not fewer than three persons who shall be appointed by the Lieutenant Governor in Council. R.S.O. 1990, c. O.36, s. 16 (2); 2006, c. 34, s. 39. Chair, vice-chair

(3) The Lieutenant Governor in Council may appoint one of the members of the Board as chair and another of the members as vice-chair. R.S.O. 1990, c. O.36, s. 16 (3). Composition of Board for hearings

(4) A proceeding before the Board shall be heard and determined by a panel consisting of one or more members of the Board, as assigned by the chair or vice-chair of the Board. 2001, c. 9, Sched. M, s. 1. Remuneration of members

(5) The members of the Board shall receive such remuneration and expenses as the Lieutenant Governor in Council determines. R.S.O. 1990, c. O.36, s. 16 (5). 152

SCHEDULE M, AMENDMENTS PROPOSED BY THE MINISTRY OF THE SOLICITOR GENERAL 1. Subsection 16 (4) of the Ontario Society for the Prevention of Cruelty to Animals Act is repealed and the

following substituted: Composition of Board for hearings. (4) A proceeding before the Board shall be heard and determined by a panel consisting of one or more members of the Board, as assigned by the chair or vice-chair of the Board. Commencement 2. This Schedule comes into force on the day the Government Efficiency Act, 2001 receives Royal Assent. 153

“But the chair of the Animal Care Review Board who is presiding over the hearing repeatedly said on Wednesday that she “didn’t understand” the legalese being presented to her and asked lawyers on both sides of the argument to clarify the procedure…“I’m trying to be as fair as I can, given these complex rules,” Legault told the lawyers in a small conference room at the Marriott Hotel. “Most of the hearings that we hear are much less formal.”… “It illustrates the absurdity of the law,” he said….He is challenging Johnson’s charge on the grounds that the search warrant was granted on hearsay. The argument Wednesday centres on Andrews’ request to cross-examine an OSPCA officer to reveal the “hearsay chain,” which he said began as an anonymous voice mail in at the Gananoque SPCA. It was “fourth-hand information” by the time an OSPCA agent relayed it to the Justice of the Peace who granted the search












warrant. Andrews argued that the agent “failed to be full and frank” about the source of the information.” http://www.ottawacitizen.com/news/Animal%2BCare%2BReview%2BBoard%2Bchair%2Bstruggles%2Bunderstand%2Blegal%2Barguments%2Bhearing/7304349/story.html 154

http://www.ottawacitizen.com/news/Animal%2BCare%2BReview%2BBoard%2Bchair%2Bstruggles%2Bunderstand%2Blegal%2Barguments%2Bhearing/7304349/story.html 155

Abolition of the Star Chamber, July 5, 1641 An act for the regulating of the privy council, and for taking away the court commonly called the star-chamber. WHEREAS by the great charter many times confirmed in parliament, it is enacted, That no freeman shall be taken or imprisoned, or disseised of his freehold or liberties, or free customs, or be outlawed or exiled or otherwise destroyed, and that the King will not pass upon him, or condemn him; but by lawful judgment of his peers, or by the law of the land: … II. And forasmuch as all matters examinable or determinable before the said judges, or in the court commonly called the star-chamber, may have their proper remedy and redress, and their due punishment and correction, by the common law of the land, and in the ordinary course of justice elsewhere; (2) and forasmuch as the reasons and motives inducing the erection and continuance of that court do now cease: (3) and the proceedings, censures and decrees of that court, have by experience been found to be an intolerable burthen to the subjects, and the means to introduce an arbitrary power and government; (4) and forasmuch as the council-table hath of late times assumed unto it self a power to intermeddle in civil causes and matters only of private interest between party and party, and have adventured to determine of the estates and liberties of the subject, contrary to the law of the land and the rights and privileges of the subject, by which great and manifold mischief and inconveniencies have arisen and happened, and much incertainty by means of such-proceedings hath been conceived concerning mens rights and estates; for settling whereof, and preventing the like in time to come, 156

http://www.ottawacitizen.com/news/Animal%2BCare%2BReview%2BBoard%2Bchair%2Bstruggles%2Bunderstand%2Blegal%2Barguments%2Bhearing/7304349/story.html 157

Appeal 18. (1) The Society or the owner or custodian may appeal the decision of the Board to a judge of the Superior

Court of Justice. R.S.O. 1990, c. O.36, s. 18 (1); 2006, c. 19, Sched. C, s. 1 (1). Notice of appeal

(2) The appeal shall be made by filing a notice of appeal with the local registrar of the court and serving a copy thereof on the other parties before the Board within 15 business days after the notice of the Board’s decision is served on the appellant under subsection 17 (7). R.S.O. 1990, c. O.36, s. 18 (2); 2006, c. 19, Sched. F, s. 4 (1). Date of hearing

(3) The appellant or any person served with notice of appeal may, upon at least two business days notice to each of the other parties, apply to the judge to fix a date for the hearing of the appeal. R.S.O. 1990, c. O.36, s. 18 (3); 2006, c. 19, Sched. F, s. 4 (2). Decision

(4) The appeal shall be a new hearing and the judge may rescind, alter or confirm the decision of the Board and make such order as to costs as he or she considers appropriate, and the decision of the judge is final. R.S.O. 1990, c. O.36, s. 18 (4). 158

Inspector, etc., not personally liable 19. No inspector or agent of the Society and no veterinarian or member of the Board is personally liable for

anything done by him or her in good faith under or purporting to be under the authority of this Act. R.S.O. 1990, c. O.36, s. 19. 159

Service of orders, notices, etc. 20. Any order, notice or statement of account required or authorized to be served under this Act shall be served

personally or by registered mail, courier, fax, electronic mail or other prescribed method in accordance with the regulations. 2008, c. 16, s. 18; 2009, c. 33, Sched. 9, s. 9 (6). 160

Conflict with municipal by-laws 21. In the event of a conflict between a provision of this Act or of a regulation made under this Act and of a municipal by-law pertaining to the welfare of or the prevention of cruelty to animals, the provision that affords the greater protection to animals shall prevail. 2008, c. 16, s. 18. 161

Town won’t enforce beach bylaw on private property, By Rob Gowan, Sun Times, Owen Sound, Thursday, October 18, 2012 2:26:58 EDT PM

http://www.ottawacitizen.com/news/Animal%2BCare%2BReview%2BBoard%2Bchair%2Bstruggles%2Bunderstand%2Blegal%2Barguments%2Bhearing/7304349/story.html













http://www.owensoundsuntimes.com/author/rob-gowan


162

“Section 22(1)(b) states that the Lieutenant Governor in Council may make regulations “prescribing activities that constitute activities carried on in accordance with reasonable and generally accepted practices of agricultural animal care, management or husbandry.”” Ms. Stephanie Brown, CANADIAN COALITION FOR FARM ANIMALS http://www.ontla.on.ca/web/committee-proceedings/committee_transcripts_details.do?locale=en&Date=2008-07-21&ParlCommID=8855&BillID=1979&Business=&DocumentID=23139 163

Regulations 22. (1) The Lieutenant Governor in Council may make regulations,

(a) prescribing activities that constitute activities carried on in accordance with reasonable and generally accepted practices of agricultural animal care, management or husbandry for the purposes of clauses 11.1 (2) (a) and 11.2 (6) (c);

164

The British North America Act, 1867. 165


(b) prescribing classes of animals, circumstances and conditions or activities for the purposes of clauses 11.1 (2) (b) and 11.2 (6) (d);

166


(c) exempting any person or class of persons from any provision of this Act or of a regulation made under this Act, and prescribing conditions and circumstances for any such exemption. 2008, c. 16, s. 18.

167

Magna Carta, the Forest Charters, the Common Law, the Petition of Right, the Statute of Monopolies, the Abolition of the Star Chamber, the Statute of Fraud, the Bill of Rights, the Nullum Tempus Act, Habeas Corpus, etc. 168

Ontario (Attorney General) v. OPSEU, [1987] 2 S.C.R. 2 ..."freedom of speech" is a deep-rooted value in our democratic system of government. It is a principle of our common law constitution inherited from the United Kingdom by virtue of the preamble to the Constitution Act, 1867.

169

“…,notice by Sir Edward Coke, that it is declaratory of the ancient law and liberty of England, not adding any new freedom, nor taking away any lawful duties, but only repetition of former privileges, which time or oppression had brought into disuse.” Historical Essay on the Magna Carta, R. Thomson, 1829, p. 270 170

The Rise and Progress of the English Constitution, E. S. Creasy, M.A. p. 3-5 171

Blackstone Commentaries, 1765,p. 125-139. “And these may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty; and the right of private property: because as there is no other known method of compulsion, or of abridging man’s natural free will, but by an infringement or diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense… 1. The right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. 1. i. Life is the immediate gift of God, a right inherent by nature in every individual…ii. A man’s limbs, (by which for the resent we only understand those members which may be useful to him in fight, and the loss of which only amounts to mayhem by the common law) …To these therefore he has a natural inherent right; and they cannot be wantonly destroyed or disabled without a manifest breach of civil liberty. Iii. Besides those limbs and members that may be necessary to man, in order to defend himself or annoy his enemy, the rest of his person or body is also entitled by the same natural right to security from corporal insults of menaces, assaults, beating, and wounding; though such insults amount not to destruction of life or member. iv. The preservation of a man’s health from such practices as may prejudice or annoy it. v. The security of his reputation or good name from the arts of detraction and slander, are rights which every man is intitled, by reason of natural justice… 2. …to personal security, the law of England regards, asserts, and preserves the personal liberty of individuals…Here again the language of the great charter is, that no freeman shall be taken or imprisoned, but by the lawful judgment of his equals…And may subsequent statutes expressly direct, that no man shall be taken or imprisoned by suggestion of petition to the king, or his council. Unless it be by legal indictment, or the process of the common law. By petition of right, 3 Car. I, it is enacted, that no freeman shall be imprisoned or detained without cause shewn, to which he may make answer according to law.. …Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper, …there would soon be an end of all other rights and








immunities. 3. The third absolute right, inherent in every Englishman, is that of property: which consists in the free use, enjoyment, and disposal of all his acquisition, without control or diminution…The laws of England are therefore, in point of honor and justice, extremely watchful in ascertaining and protecting this right…Upon this principle the great charter has declared that no freeman shall be dissiesed, or divested, of his freehold, or of his liberties, or free customs, …And by a variety of ancient statutes it is enacted, that no man’s land or goods shall be seised into the kings hands, against the great charter, …and that no man shall be disinherited, nor put out of his franchises or freehold…and if any thing be done to the contrary, it shall be redressed, and holden for none” 172

The Rise and Progress of The English Constitution, E. S. Creasy, M.A. p. 2-3. “Some furious Jacobins, at the close of the last century, used to clamour that there was no such thing as the English Constitution, because it could not be produced in full written form, like that of the United States, or like those with which Sieyes stocked the pigeon-holes of his bureau, to suit the varying phases of the first years of the French Revolution. The same cavil is occasionally repeated in our own times. In order to meet it, there is no occasion to resort to the strange dogma of Burke, that our ancestors, at the Revolution of 1688, bound, and had a right to bind, both themselves and their posterity to perpetual adherence to the exact order of things then established: nor need we rely solely on the eulogies, which foreign as well as native writers, a hundred years ago, used to heap upon the British constitution. Those panegyrics, whether exaggerated or not, were to a great extent supported by reasonings and comparisons, which are now wholly inapplicable. But, without basing his political creed on them, an impartial and earnest investigator may still satisfy himself that England has a constitution, and that there is ample cause why she should cherish it. And by this it is meant, that he will recognize and admire, in the history, the laws, and the institutions of England, certain great leading principles, which have existed from the earliest period of our nationality down to the present time; expanding and adapting themselves to the progress of society and civilization; advancing and varying in development, but still essentially the same in substance and in spirit. These great primeval and enduring principles are the principles of the English Constitution. And we are not obliged to learn them from imperfect evidence or precarious speculation; for they are imperishably recorded in the Great Charter, and in the Charters and Statutes connected with and confirmatory of Magna Carta. In Magna Carta itself, that is to say, in a solemn instrument deliberately agreed on by the king, the prelates, the great barons, the gentry, the burghers, the yeomanry, and all the freemen of the realm, at an epoch which we have a right to consider the commencement of our nationality, and in the statute entitled Confirmatio Cartarum, which is to be read as a supplement to Magna Carta, we can trace these great principles, some in the germ, some more fully revealed. And thus, at the very dawn of the history of the present English nation, we behold the foundations of our great political institutions imperishably laid.” 173

Getting it Wrong. How Canadians Forgot Their Past and Imperiled Confederation, Paul Romney, p. 51 174

“It is generally agreed, that in the main the constitution of parliament, as it now stands, was marked out so long ago as the seventeenth year of king John, A.D. 1215, in the great charter granted by that prince: wherein he promises to summon all archbishops, bishops, abbots, earls, and greater barons, personally; and all other tenants in chief under the crown, by the sheriff and bailiffs; to meet at certain place, with forty days’ notice, to assess aids and suctages when necessary…I proceed therefore to inquire wherein consists this constitution of parliament, as it now stands, and has stood for the space of six hundred years….I. As to the manner and time of assembling. A new parliament was regularly to be summoned by the king’s writ or letter, issued out of chancery by advice of the privy council, and according to the magna carta of king John,…”Commentaries of the Laws of England, Herbert Broom, L.L.D., 1875, p. 125 175

44 A federal-provincial division of powers necessitated a written constitution which circumscribed the powers of the new Dominion and Provinces of Canada. Despite its federal structure, the new Dominion was to have "a Constitution similar in Principle to that of the United Kingdom" (Constitution Act, 1867, preamble). Allowing for the obvious differences between the governance of Canada and the United Kingdom, it was nevertheless thought important to thus emphasize the continuity of constitutional principles, including democratic institutions and the rule of law; and the continuity of the exercise of sovereign power transferred from Westminster to the federal and provincial capitals of Canada. Reference re Secession of Quebec, [1998] 2 SCR 217 176

“…, and to declare to the people that we have granted to hold them in all points; and that our justices, sheriffs, mayors, and other ministers, which under us have the laws of our land to guide, shall allow the said charters pleaded before them in judgement in all their points, that is to wit, the Great Charter of Liberties as the common law, and the Charter of the Forest according to the assise of the forest, for the wealth of our realm. 2. And we will, that if any judgement be given from henceforth contrary to the points of the charters aforesaid, by the justices, or by any other our ministers that hold pleas before them, against the points of the charters, it shall be undone and holden for nought. Charter of Confirmation, 25 Edw. I. – 1297. The Book of Rights: Or, Constitutional Acts and Parliamentary Proceedings Affecting Civil and Religious Liberty in England, from Magna Carta to the Present Time, Edgar Taylor, F.S.A., 1833, p. 49



177

Land Registration Reform Act, R.S.O. 1990, Chapter L.4, Consolidation Period: From November 22, 2010, No writing or signature required. 21. Despite section 2 of the Statute of Frauds Act, section 9 of the Conveyancing and Law of Property Act or a provision in any other statute or any rule of law, an electronic document that creates, transfers or otherwise disposes of an estate or interest in land is not required to be in writing or to be signed by the parties and has the same effect for all purposes as a document that is in writing and is signed by the parties. 178

1 Will. and Mary, Sess. 2. – 1689. Bill of Rights. Chap. II. An Act declaring the Rights and Liberties of the Subject, and settling the Succession of the Crown. …All which are utterly and directly contrary to the known laws and statutes, and freedom of this realm…And thereupon the said lords spiritual and temporal, and commons, being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid; do in the first place (as their ancestors in like cause have usually done) for the vindicating and asserting their ancient rights and liberties, declare; And they do claim, demand, and insist upon all and singular the premises, as their undoubted rights and liberties; and that no declarations, judgements, doings, or proceedings to the prejudice of the people in any of the said premises, ought in any wise to be drawn hereafter into consequence or example. To which demand of their rights they are particularly encouraged by the declaration of his highness the prince of Orange, as being the only means for obtaining a full redress and remedy therein. Having therefore an entire confidence, that his said highness the prince of Orange will perfect the deliverance so far advanced by him, and will still preserve them from the violation of their rights which they have here asserted, and from all other attempts upon their religion, rights, and liberties, 2. The said lords spiritual and temporal and commons assembled at Westminster do resolve, that William and Mary…be, and be declared, king and queen of England, France, and Ireland, and the dominions thereunto belonging, to hold the crown and royal dignity of the said kingdoms and dominions to them the said prince and princess during their lives, and the life of the survivor of them…do pray the said prince and princess to accept the same accordingly. 6. Now, in pursuance of the premises, the said lords spiritual and temporal and commons in parliament assembled, for the ratifying, confirming, and establishing the said declaration, and the articles, clauses, matters, and things therein contained, by the force of a law made in due form by authority of parliament, do pray that it may be declared and enacted, That all and singular the rights and liberties asserted and claimed in the said declaration are the true, ancient, and indubitable rights and liberties of the people of this kingdom, and so shall be esteemed, allowed, adjudged, deemed, and taken to be, and that all and every the particulars aforesaid shall be firmly and strictly holden and observed, as they are expressed in the said declaration; and all officers and ministers whatsoever shall serve their majesties and their successors according to the same in all times to come….10. … or at his or her coronation, before such person or persons, who shall administer the coronation oath to him or her, at the time of his or her taking the said oath…” The Book of Rights: Or, Constitutional Acts and Parliamentary Proceedings Affecting Civil and Religious Liberty in England, from Magna Carta to the Present Time, Edgar Taylor, F.S.A., 1833, p. 216-217 179

Ontario (Minister of Natural Resources) v. Holdcroft, 2004 CanLII 41586 (ON C.A.) 180

52 The principles assist in the interpretation of the text and the delineation of spheres of jurisdiction, the scope of rights and obligations, and the role of our political institutions. Equally important, observance of and respect for these principles is essential to the ongoing process of constitutional development and evolution of our Constitution as a "living tree", to invoke the famous description in Edwards v. Attorney-General for Canada, [1930] A.C. 124 (P.C.), at p. 136. As this Court indicated in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 CanLII 153 (SCC), [1993] 1 S.C.R. 319, Canadians have long recognized the existence and

importance of unwritten constitutional principles in our system of government. Reference re Secession of Quebec, [1998] 2 SCR 217 181

53 Given the existence of these underlying constitutional principles, what use may the Court make of them? In the Provincial Judges Reference, supra, at paras. 93 and 104, we cautioned that the recognition of these constitutional principles (the majority opinion referred to them as "organizing principles" and described one of them, judicial independence, as an "unwritten norm") could not be taken as an invitation to dispense with the written text of the Constitution. On the contrary, we confirmed that there are compelling reasons to insist upon the primacy of our written constitution. A written constitution promotes legal certainty and predictability, and it provides a foundation and a touchstone for the exercise of constitutional judicial review. However, we also observed in the Provincial Judges Reference that the effect of the preamble to the Constitution Act, 1867 was to incorporate certain constitutional principles by reference, a point made earlier in Fraser v. Public Service Staff Relations Board, 1985 CanLII 14 (SCC), [1985] 2 S.C.R. 455, at pp. 462-63. In the Provincial Judges Reference, at para. 104, we determined that the preamble "invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text". Reference re Secession of Quebec, [1998] 2 SCR 217

http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90l04_f.htm#s21





182

1 Will. and Mary, Sess. 1. 1689. Coronation Oath Act. Chap. VI. An Act for establishing the Coronation Oath. Whereas by the law and ancient usage of this realm the kings and queens thereof have taken a solemn oath upon the Evangelists, at their respective coronations, to maintain the statutes, laws, and customs of the said realm, and all the people and inhabitants thereof in their spiritual and civil rights and properties; but forasmuch as the oath itself on such occasion administered hath heretofore been framed in doubtful words and expressions at this time unknown: To the end therefore that one uniform oath may be in all times to come taken by the kings and queens of this realm, and to them respectively administered at the times of their and every of their coronation; may it please your majesties that it may be enacted, 2. And be it enacted by the king’s and queen’s most excellent majesties, by and with the advice…, and by the authority of the same, that the oath herein mentioned, and hereafter expressed, shall and may be administered to their most excellent majesties King William and Queen Mary (whom God long preserve) at the time of their coronation, in the presence of all persons that shall be then and there present at the solemnizing thereof by the archbishop of Canterbury or the archbishop of York, or either of them, or any other bishop of this realm who the king’s majesty shall thereunto appoint, and who shall be hereby thereunto respectively authorized; which oath followeth, and shall be administred in this manner; that is to say, 3. The archbishop or bishop shall say, Will you solemnly promise and swear to govern the people of this kingdom of England, and the dominions thereto belonging, according to the statutes in parliament agreed on and the laws and customs of the same? The king and queen shall say, -- I solemnly promise so to do. Archbishop or bishop. -- Will you to your power cause law and justice in mercy to be executed in all your judgements? King and Queen. – I will. Archbishop or Bishop. Will you to the utmost of your power maintain the laws of God, the true profession of the gospel, and the protestant reformed religion established by law? And will you preserve unto the bishops and clergy of this realm, and to the churches committed to their charge, all such rights and privileges as by laws do or shall appertain unto them or any of them? King and Queen. – All this I promise to do. After this, the king and queen, laying his and her hand upon the Holy Gospels, shall say, King and Queen. – The things which I have here before promised I will perform and keep: So help me God. Then the king and queen shall kiss the book. 4. And be it further enacted, that the said oath shall be in like manner administred to every king or queen who shall succeed to the imperial crown of this realm, at their respective coronations, by one of the archbishops or bishops of this realm of England for the time being, to be thereunto appointed by such king or queen respectively, and in the presence of all persons that shall be attending, assisting, or otherwise present at such their respective coronations; any law, statute, or usage to the contrary notwithstanding. The Book of Rights: Or, Constitutional Acts and Parliamentary Proceedings Affecting Civil and Religious Liberty in England, from Magna Carta to the Present Time, Edgar Taylor, F.S.A., 1833, p. 214-215 183

“…,notice by Sir Edward Coke, that it is declaratory of the ancient law and liberty of England, not adding any new freedom, nor taking away any lawful duties, but only repetition of former privileges, which time or oppression had brought into disuse.” Historical Essay on the Magna Carta, R. Thomson, 1829, p. 270 184

Law is something more than mere will exerted as an act of power. It must be not a special rule for a particular person or a particular case…Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude. Hurtado v. California, 110 U.S. 516 at 535-36, 4 S. Ct. 516 (1884) 185

Regulations 22. Same (2) The Minister responsible for the administration of this Act may make regulations,

(a) prescribing and governing the powers and duties of the Chief Inspector of the Society, including the power to establish qualifications, requirements and standards for inspectors and agents of the Society, to appoint inspectors and agents of the Society and to revoke their appointments and generally to oversee the inspectors and agents of the Society in the performance of their duties;

186

Regulations 22. Same (2) The Minister responsible for the administration of this Act may make regulations,

(b) prescribing standards of care for the purposes of section 11.1; 187

Regulations

22. Same (2) The Minister responsible for the administration of this Act may make regulations, (c) governing the report required under section 11.3, including its contents and the manner of making the report; (Veterinarians’ obligation to report 11.3 Every veterinarian who has reasonable grounds to believe that an animal has been or is being abused or neglected shall report his or her belief to an inspector or an agent of the Society. 2008, c. 16, s. 8.) 188

VETERINARIANS ACT, R.S.O. 1990, CHAPTER V.3, CONSOLIDATION PERIOD: FROM JUNE 1, 2011 TO THE E-LAWS CURRENCY DATE. VETERINARIANS ACT, R.R.O. 1990, REGULATION 1093







189

Regulations

22. Same (2) The Minister responsible for the administration of this Act may make regulations, (d)prescribing forms for the information on oath required by subsection 11.5 (1), 12 (1) or 14 (1.1), for a warrant

issued under subsection 11.5 (1) or 12 (1) and for an order issued under subsection 14 (1.1) or (1.4); (e)governing applications for and the issue of warrants by telephone or other means of telecommunication for the

purposes of subsections 11.5 (1.1) and 12 (2), prescribing the forms required to apply for a warrant under those subsections and the forms for the warrants issued under those subsections, prescribing rules for the execution of such warrants and prescribing evidentiary rules with respect to such warrants; (f) prescribing a period of time for the purpose of section 15.1; 190

Regulations

22. Same (2) The Minister responsible for the administration of this Act may make regulations, (g) governing the service of orders, notices and statements of account for the purposes of section 20. 2008, c. 16,

s. 18; 2009, c. 33, Sched. 9, s. 9 (7). 191

Service of orders, notices, etc.

20. Any order, notice or statement of account required or authorized to be served under this Act shall be served personally or by registered mail, courier, fax, electronic mail or other prescribed method in accordance with the regulations. 2008, c. 16, s. 18; 2009, c. 33, Sched. 9, s. 9 (6). 192

“distress” means the state of being in need of proper care, water, food or shelter or being injured, sick or in pain or suffering or being abused or subject to undue or unnecessary hardship, privation or neglect; 193

R. v. Pauliuk, 2005 ONCJ 119, by Justice Zuraw 194

PART II, PRACTICE STANDARDS 17. (1) FOR THE PURPOSES OF THE ACT, PROFESSIONAL

MISCONDUCT INCLUDES THE FOLLOWING: 6.Revealing information concerning a client, an animal or any professional service performed for an animal, to any person other than the client or another member treating the animal except, i. with the consent of the client, ii. when required to do so by law, iii. to prevent, or contribute information for the treatment of, a disease or physical injury of a person, iv. when it appears that the animal has been abused, or v. for the purpose of identifying, locating or notifying the apparent owner of the animal, protecting the rights of the apparent owner or enforcing applicable laws in respect of the animal, where it appears that the animal is not owned by the person presenting it for treatment. 195

Police powers, such as investigation, detention, arrest, and the gathering and sharing of personal information, require fundamental restraint and accountability in a democratic society based on the rule of law and respect for human rights. Can Vet J. 2006 November; 47(11): 1065–1072. PMCID: PMC1624913, The veterinary profession’s role in policing animal welfare Terry L. Whiting, Sean C. Brennan, and Gustave C. Wruck, p. 3. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1624913/ 196

Police Services Act. 81.1 Inducing misconduct and withholding services 81. (1) No person shall, (a) induce or attempt to induce a member of a police force to withhold his or her services; or (b) induce or attempt to induce a police officer to commit misconduct. 2007, c. 5, s. 10. Withholding services (2) No member of a police force shall withhold his or her services. 2007, c. 5, s. 10. Offence (3) A person who contravenes subsection (1) or (2) is guilty of an offence and on conviction is liable to a fine of not more than $2,000 or to imprisonment for a term of not more than one year, or to both. 2007, c. 5, s. 10.












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