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The Ontario Superior Court building is seen in Toronto on Jan. 29, 2020.

Colin Perkel/The Canadian Press

The Ontario government is being sued by animal-rights advocates who allege their right to free speech is impaired by a new law that threatens steep fines for people who infiltrate farms and slaughterhouses on “false pretenses.”

The claim, filed in Ontario Superior Court this week, is the first constitutional challenge of what has been branded “Ag-Gag” legislation, though battles may be brewing elsewhere as more provinces mull or pass similar laws.

“One of the only ways that the public has to see the realities about what happens on farms to animals is through undercover footage,” said Camille Labchuk, the executive director of Animal Justice, the lawsuit’s lead plaintiff.

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Across North America, members of animal-rights groups have been getting hired as farmhands and factory workers without disclosing their true aims. They emerge weeks later with footage that can cause the public to question meat, egg and milk production.

Farms and food factories have responded by lobbying for higher penalties for trespassing. The laws, which are relatively new to Canada, initially gained traction in the U.S. farm belt, where courts have already ruled similar state laws unconstitutional.

In 2019, the government in Ontario started bolstering the province’s trespassing laws so that violators on agricultural properties could face thousands of dollars in fines.

The Security from Trespass and Protecting Food Safety Act passed last June. Government officials argued that the agricultural industry, its workers and livestock needed protections from activists. “We’ve heard from farmers who no longer feel safe in their homes,” Agriculture Minister Ernie Hardeman said in a statement.

The government said it would not comment on a lawsuit that is before the courts. But it maintains that provisions of the law are constitutionally sound.

“Careful work was put into crafting the act and the minister’s regulation to balance the rights of farmers and their farm operations with the rights for people to participate in lawful protests on public property,” said Christa Roettele, a spokeswoman for Ontario’s Agriculture Ministry.

She added that the law builds in protections for employee whistleblowers and journalists who report on animal abuse.

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Those protections, however, would not likely extend to groups such as Animal Justice, a national organization whose lawsuit says it has “engaged in undercover employee whistleblower exposés at animal use facilities in Ontario.”

The group says it will no longer be able to do that work without facing severe penalties and that, as a result, the public will be denied vital information.

It claims that, in addition to imposing steep trespassing fines, the law unduly penalizes farm infiltrators by seeking to have them pay additional damages to agricultural companies that suffer losses from such breaches or from negative publicity.

Similar anti-trespassing laws and regulations shielding the agricultural sector have recently been passed in Alberta. There, first-time offenders can face $15,000 fines, with an additional $1,000 for each day an offence continues. For multiple offences, the fines are doubled. And if an offender is a corporation, the fines are as much as $200,000 and $15,000 for each additional day.

The world is watching how Canadian courts will weigh these laws, says Dalhousie University law professor Jodi Lazare, who sits on Animal Justice’s litigation committee.

The legislation “prevents undercover investigators and employee whistleblowers from documenting systemic and repeated patterns of animal abuse,” she said. “In doing so, it limits their ability to share that information with the public, which has a right to make informed choices about the food they eat and the industries they support.”

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U.S. courts have pronounced similar laws unconstitutional. In 2015, a judge in Idaho ruled that the state’s anti-trespassing law went too far because it “not only restricts more speech than necessary, it poses a particularly serious threat to whistleblowers’ free speech rights.”

The Animal Justice lawsuit points out that the Ontario law also threatens fines against protesters who gather near slaughterhouses. The lawsuit also argues that the new legislation encourages farmers and food-factory owners to make dangerous citizen’s arrests of activists by shielding agricultural-sector employees from being sued by people they might injure.

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