The appellate court allowed Ontario’s appeal of a ruling that had struck down components of the law
An Ontario law that restricts animal rights activists’ access to farms does not violate their right to freedom of expression under the Canadian Charter of Rights and Freedoms, the Ontario Court of Appeal ruled Wednesday, effectively overturning a previous court decision that had struck down parts of the law.
Passed in 2020, Ontario’s Security from Trespass and Protecting Food Safety Act bars individuals from accessing farms or animal processing facilities under false pretences. This includes getting a job at those facilities to whistleblow or report on animal cruelty.
Animal Justice, the animal rights organization that challenged the law alongside a freelance journalist and an animal protection advocate, argues the so-called “ag gag” law shields factory farms by making it harder for journalists and whistleblowers to investigate misconduct.
Kaitlyn Mitchell, director of legal advocacy at Animal Justice, told Law Times on Wednesday that the organization is reviewing the OCA’s decision in Animal Justice v. Ontario (Attorney General) and considering whether to appeal the ruling to the Supreme Court of Canada.
Mitchell calls the Ontario legislation “a dangerous, American-style agricultural gag, or ‘ag gag’ law that not only prohibits undercover exposés, but also targets long-time farm and slaughterhouse employees who see illegal or unethical conduct in the workplace and decide to blow the whistle on their employer.”
She adds that the OCA’s decision “opens the door for other industries to advocate for similar laws to prevent employee whistleblowers and journalists from exposing troubling conduct, stifling public debate and eroding democratic values.”
A spokesperson for the Ontario Ministry of the Attorney General declined to comment on Wednesday’s ruling.
Alberta passed Canada’s first ag gag law in 2019. Prince Edward Island and Manitoba later passed similar laws.
A federal ag gag bill completed its third reading in the House of Commons in late 2023 and was later amended by the Senate. The bill died when Prime Minister Justice Trudeau prorogued Parliament in early 2025.
In the US, states began introducing ag gag laws in the 1990s. Over the past decade, multiple US federal courts have ruled the laws were either unconstitutional in full or in part, because they violate the right to freedom of speech.
According to the OCA’s decision, the Ontario legislature introduced the 2020 law in response to industry stakeholders who wanted to prevent animal rights activists from interfering with farm operations. The stakeholders asked for legislative tools to bar activists from trespassing on farm and animal processing facilities, releasing farm animals, and interfering with animals or their transportation in ways that harmed both animals and humans.
The Ontario law bars individuals from trespassing on farms, animal processing facilities, and other premises without the prior consent of the property’s owner or occupier. It also prohibits unauthorized interference with farm animals that are on farms or in transit, as well as the obstruction of vehicles transporting animals. Violations of the law are punishable by a fine.
Notably, the law states that when a person obtains consent from a property owner or occupier by using false pretences – i.e., by accepting a job with the covert intent to act as a whistleblower – that consent is invalid. The law adds that using false pretences to obtain consent to access property constitutes an offence.
A regulation that elaborates on the law’s provisions specifies what would constitute a false pretense. The definition applies to a person who lies about having the necessary qualifications to be hired at a farm.
The regulation makes an exception for journalists and whistleblowers, stipulating that consent obtained by a false statement will not be considered to have been obtained under false pretences if the person is a journalist and meets other criteria. Employees of farm or animal processing facilities are exempt from liability when they act as whistleblowers.
Animal Justice, freelance journalist Jessica Scott-Reid, and animal rights advocate Louise Jorgensen challenged the law and a related regulation in court, arguing that it violated activists’ freedom of expression by making it difficult to document and publicize instances of animal mistreatment.
The Ontario Superior Court of Justice partly agreed with the plaintiffs. The court found that several sections of the law and the regulation were invalid, because they restricted the plaintiffs’ constitutional right to freedom of expression.
The court also found that the violation was not saved by s. 1 of the Charter, which allows limitations on Charter rights if they are reasonably justified.
However, the OCA disagreed with the lower court’s assessment and allowed Ontario’s appeal. Under the Ontario law and regulation, the plaintiffs “remain unrestricted in how they choose to communicate their messages about farm practices to the public,” the OCA said. “They can say what they like to whomever they like. What they are restricted from doing is entering farms without informed consent.”
While this restriction might prevent the plaintiffs from gathering evidence that would be “especially persuasive” to the public, “freedom of expression does not guarantee conditions most optimal for the successful reception of one’s message,” the appellate court wrote.
“Although information gathering from private sources can be an important precursor to some expression, it is not expression, and the good of expression cannot be reverse-engineered into constitutional protection of everything that precedes it,” the OCA added.
The appellate court concluded that the overall effect of the legislation – including the exceptions for journalists and whistleblowers – “does not substantially interfere with the respondents’ intended expression.”
While the appellate court said a s. 1 analysis was not necessary, it concluded that “the limits placed on the respondents’ exercise of their freedom of expression are proportionate to the public goods served by the legislation.”
