Background
Ontario’s Security from Trespass and Protecting Food Safety Act, 2020 (the Act) and its associated regulation, O. Reg. 701/20, were enacted in response to industry concerns about animal-rights activists gaining access to farms and processing facilities under false pretences. The legislation prohibits entering an “animal protection zone” without owner consent and voids any consent obtained through false statements, making such entry an offence. Limited exceptions were carved out for journalists and whistleblowers. The stated purposes were biosecurity, food safety, protection of farm workers, and prevention of economic harm to the agricultural sector.
Animal Justice, freelance journalist Jessica Scott-Reid, and advocate Louise Jorgensen challenged the Act as an unconstitutional restriction on freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms. They argued the real purpose of the false-pretences provisions (particularly s. 9 of the Regulation) was to suppress undercover exposés of animal mistreatment — not to advance biosecurity — and that the journalism and whistleblower exceptions were drawn too narrowly to save the scheme.
Justice Koehnen of the Superior Court agreed, invalidating several provisions (2024 ONSC 1753). He found the legislation limited expression both in purpose and effect, and that the false-pretences rules failed the minimal-impairment and proportionality branches of the Oakes test. Following post-judgment regulatory amendments by Ontario addressing most of the whistleblower and journalist findings, Ontario appealed only with respect to s. 9 of the Regulation and s. 12(1)(d).
The Court’s Holding
Writing for the Court of Appeal, Miller J.A. allowed Ontario’s appeal, holding that the impugned provisions do not violate s. 2(b) of the Charter. The court identified two foundational errors in the judgment below. First, the application judge mischaracterized the legislative purpose: relying on cross-examination of a Ministry policy drafter, he concluded that one purpose of the Act was to eliminate undercover exposés. The Court of Appeal held this inference was not available on the evidence — the drafter confirmed only that industry stakeholders had raised the issue, not that the legislature adopted their objective wholesale. Because legislative intent belongs to the corporate body rather than any individual civil servant, and because an express statutory purpose clause commands explanatory priority over extrinsic evidence, the correct characterization of the Act’s purpose remained that set out in s. 1: biosecurity, food safety, worker safety, and economic protection of the agricultural sector.
Second, the court found the application judge erred in treating the respondents’ claim as a straightforward negative-rights s. 2(b) claim. The court characterized the claim as essentially positive in nature — a demand for the right to access private property on the claimants’ own terms and for their own purposes — which freedom of expression does not provide. Ontario’s false-pretences provisions do not prohibit any expression; they prohibit gaining access to private premises through deception, and without lawful access, no expressive activity inside those premises attracts Charter protection.
Key Takeaways
- A statutory purpose clause carries explanatory priority; courts must be cautious about overriding it with decontextualized testimony from individual civil servants whose views are not the same as the legislature’s collective intent.
- Section 2(b) of the Charter protects freedom of expression but does not confer a positive right to access private property under false pretences in order to gather expressive content — however valuable that content may ultimately be.
- The correct characterization of a Charter claim — positive versus negative rights — is a question of law reviewable on a correctness standard and can be determinative at the s. 2(b) threshold stage, before any s. 1 justification analysis is needed.
- Ontario’s post-judgment amendments to the journalist and whistleblower exceptions (O. Reg. 374/24) mooted most of the companion findings below; only s. 9 (false pretences) and s. 12(1)(d) (whistleblower disclosure requirement) remained live on appeal.
Why It Matters
This decision is significant for the ongoing debate over so-called “ag-gag” legislation in Canada. By reversing the Superior Court’s Charter strike-down, the Court of Appeal signals that legislatures may validly prohibit deceptive access to agricultural facilities without running afoul of s. 2(b), provided the legislation’s genuine purpose is farm security and food safety rather than the suppression of speech. The ruling draws a conceptually important line between restricting the means of obtaining access to private property and restricting expression itself, limiting the reach of undercover-exposé journalism as a Charter-protected practice in the agricultural context.
The case will be of interest to media law practitioners, animal welfare advocates, and agricultural industry counsel across Canada. It also contributes to the broader jurisprudence on legislative purpose under the Charter, reinforcing that statutory purpose clauses and the text of legislation control over individual witnesses’ characterizations of what a government was “really” trying to accomplish.