Jessica Scott-Reid is a Winnipeg-based freelance writer and animal advocate.
The COVID-19 crisis has exposed a number of systematic flaws within Canadian society. Long-term care facilities and meat-processing plants, in particular, have been highlighted as hotspots for the novel coronavirus, shining a light on those spaces and exposing imperiled residents, vulnerable workers and disturbing conditions. This pandemic has produced untold tragedies, but the work that has been done to uncover and solve these inequities, which have existed since before this crisis, has been a kind of silver lining.
Yet, since November of last year, the risk is even higher for anyone in Alberta to enter such spaces in order to gather evidence of concerning conditions, if done so undercover. Bill 27, the Trespass Statutes Amendment Act, makes trespassing an even more dire offence, making certain actions of whistleblowers or undercover investigations punishable by possible fines of up to $10,000 for a first offence, up to $25,000 for subsequent offences, and potential prison time of up to six months. Bill 27, passed in knee-jerk response to animal activists entering farms to document and publicize the hidden conditions of animals, also deems anyone who gains permission to enter a property under false pretenses as trespassing. This can effectively include journalists, advocates and activists who, for example, gain employment or volunteer in order to gather evidence, as well as any employee who signs a confidentially agreement, then later gathers evidence out of concern, in order to blow the whistle.
And now, some advocates and legal experts are fearing that Bill 27 could deter such efforts, allowing them to fester as they had been, all along.
“A lot of valuable information has been obtained in the public interest via subtle forms of trespassing,” says University of Alberta law professor Peter Sankoff. He calls Bill 27 “scary,” and says it could have a chilling effect on those “going out to seek information by making it almost impossible to do so.” Mr. Sankoff explains that gaining access to spaces under false pretenses is something the media have been doing for years. “They seek credentials or somebody else’s credentials for the purpose of actually being able to go [inside restricted spaces]. That’s how almost every media undercover investigation takes place.” He adds the bill also “fails to acknowledge the bonafide value of whistleblowers.” Phil Tunley, media lawyer and president of Canadian Journalists for Free Expression, agrees: “This kind of law criminalizes investigative journalism,” he says, calling Bill 27 “unconstitutional.”
While the circumstances and situations are certainly different, a law to protect companies producing food or serving our seniors seems particularly ill-fitting at a time when it has only been the work of devoted whistleblowers or media investigations that have revealed these crises. That kind of work, according to Dr. Lynn McDonald, an elder-abuse expert and professor at the University of Toronto who has lobbied unceasingly for legislation to improve nursing-home conditions, is also just about the only way to consistently inspire lasting change. “Only exposés have shown the deplorable conditions,” she said. And in Ontario, Bill 156 – another piece of “ag-gag” legislation – was passed just this week by the government, which threatens to choke out transparency in the food industry at a time when more oversight is clearly needed.
Both Bill 27 in Alberta and Bill 156 in Ontario were allegedly created in much part to “protect” farm owners from activists seeking to expose their operations to the public. What this type of legislation actually does, however, is further conceals truths and further silences those in need.
For vulnerable individuals being abused, neglected or exploited behind closed doors, and who have less opportunity or ability to speak out, their only lifeline is those working undercover to document and publicize their plight. Whistleblowers, journalists and activists who work undercover to gather evidence of troubling conditions inside nursing homes, daycares, factories, slaughterhouses, and farms – as well as the news outlets who direct or work with them – must not be excessively penalized for doing so.
As the COVID-19 pandemic has made clear, much greater protections are needed for our society’s most vulnerable, not for those who are abusing them. Legislation in Alberta and Ontario suggests that those governments are misunderstanding their responsibility on that front.
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