By Wendy Beswick

The very law meant to prevent animal abuse has become the instrument of abuse to many a farmer, says a lawyer specializing in agriculture.

The Ontario Society for the Prevention of Cruelty to Animals Act gives the OSPCA more powers than the police and that is a problem, said Ottawa-based lawyer Kurtis Andrews, who has defended animal cruelty cases, including the case against Chesterville dairy farmer David Robinson, and helped draft MPP Jack MacLaren’s defeated bill to make changes to the OSPCA Act.

"This is not an animal welfare problem. It is a people welfare problem," said Andrews at the Glengarry Landowners Association meeting Aug. 14. "The way the legislation is written, a farmer could be charged with performing a generally accepted farm practice.

"The legislation is written in such loose language that it can be taken advantage of," he said. "It doesn’t matter what profession you are in or where you work. There are going to be certain personalities that will want to take things to the limit. If it’s a power issue, they will want to exercise the power they have to the full extent possible and choose not to practice restraint."

For example, in section 13 (1) it states that "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."

The farmer could be on the losing end of the battle when urban OSPCA inspectors deem that a farm animal is distressed. With wildly divergent opinions of standard animal care and media perception of cute kittens in their corner, the OSPCA can make a strong public case against the farmer.

"What is of particular interest to the farm community is section 11.1, which talks about standards of care and section 11.2 that states people should not permit an animal to be in distress," said Andrews. "These sections have exceptions regarding generally accepted agricultural practices. From a legal perspective, when a law has an exception, the onus is on the defendant to prove himself. So, any farmer charged would have to prove that he was performing generally acceptable practices."

The OSPCA once had an animal welfare position statement on farm and agricultural animals that was part of their agent and investigator training manual. This statement opposed a whole raft of standard agricultural practices such as close confinement, tail docking, dehorning or castration by a farmer, debeaking, and ear punching for identification purposes.

While this welfare position statement has since been removed from their manual, the OSPCA continues to push for the Agriculture Canada/Federation of Canadian Humane Societies recommended code of practice for the care and handling of agricultural livestock to be adopted as the minimum standard acceptable.

The legislation also makes it easy for OSPCA officers to find themselves in an inherent conflict of interest with fundraising, Andrews said. Contrary to public opinion, the OSPCA is not funded by the government.

"This is the most troubling aspect of the legislation," he said. "Investigation is funded 100 per cent by fund raising, seized animals, invoices and donations. They then publicize the seizures and charges. But when they send out their annual report, they will report the charges but not the convictions."

"The OSPCA is a private organization with police powers. I take issue with that," said Andrews. "There is no government accountability at all. They are not subject to freedom of information at all so there is no way of accessing any information they have on people, as you would have with the police."

Unlike other government organizations that have checks and balances, the OSPCA does not answer to anyone, Andrew said. "They are not subject to the Police Services Act as police are. The OSPCA deals with complaints internally and at their own discretion. The whole organization is now flexing its muscles."

With numerous complaints by farmers and rural landowners of heavy-handed OSPCA investigations over the past year, along with ongoing court cases, it is now time for farmers to become more proactive, Andrews said.

"We need more lawyers to come from the farm," he said. "We need them desperately. When issues arise we can come at them with a rural perspective."