Canadian Government Introduces Its Own Ag-Gag Law – Can Canada Do This?
On February 18, 2020, Canadian MP John Barlow introduced Bill C-205 into the House of Commons, where it received first reading. This Bill is clearly a federal entry into the ag-gag world. As discussed below, it is far from clear that Canada has the legal authority to do this.
What Would Bill C-205 Do?
Bill C-205 proposes to add two short amendments to the Health of Animals Act (Canada) .
The first amendment adds a new section 9.1, which prohibits trespassing if doing so could expose an animal to a disease:
“Exposure of animals to disease or toxic substance
9.1 No person shall, without lawful authority or excuse, enter a building or other enclosed place in which animals are kept knowing that or being reckless as to whether entering such a place could result in the exposure of the animals to a disease or toxic substance that is capable of affecting or contaminating them.”
Note that this applies if people are simply “reckless” as to whether they could be exposing an animal to disease.
The second amendment introduces penalties specifically for breach of section 9.1 – hefty fines and/or possible imprisonment:
“Exposure of animals to disease – individuals
65(1.1) Every individual who contravenes section 9.1 is guilty of
(a) an offence punishable on summary conviction and liable to a fine not exceeding fifty thousand dollars or to imprisonment for a term not exceeding six months, or to both; or
(b) an indictable offence and liable to a fine not exceeding two hundred and fifty thousand dollars or to imprisonment for a term not exceeding two years, or to both.
Exposure of animals to disease – other persons
(1.2) Every person, other than an individual, that contravenes section 9.1 is guilty of
(a) an offence punishable on summary conviction and liable to a fine not exceeding one hundred thousand dollars; or
(b) an indictable offence and liable to a fine not exceeding five hundred thousand dollars.”
The reference in (1.2) to a “person, other than an individual” likely means a society, corporation or other legally organized group.
MP John Barlow
Perhaps not surprisingly, Barlow is Conservative MP for the Foothills federal electoral district – comprising the south-west corner of Alberta. The Foothills riding was created in 2013 from parts of Macleod, Lethbridge and Calgary Southwest .
Private Members Bill
Bill C-205 is a private members bill, which means it was introduced into the House of Commons by an MP – not by the government (cabinet minister) [3A].
Private members bills have to go through the same procedures as government bills – second reading, possible consideration of the bill by legislative, standing or a special committee, or by Committee of the Whole, report stage, third reading, passage by the Senate, royal assent. [3B]
Very few private members bills become law. However, apparently it more likely for private members bills to become law during times of Canadian minority governments  – which is currently the situation in Canada.
Hansard is the official record of what was said and by who in Parliament. The Hansard record for February 18th contains the introduction of Bill C-205 by MP Barlow . Clearly the purpose of this Bill is to prevent trespassers on farm property.
“Mr. Speaker, I am honoured to stand today and introduce this bill, which is seconded by my colleague, the member for Beauce.
This bill addresses a critical issue, which is the securing of the biosecurity of our food supply, especially when there are trespassers on farm property and facilities. As the House may be aware, there are numerous protests on farm property and process plants across this country, and it is certainly not relegated to one segment of agriculture or one area of Canada. We have seen people enter hog farms in Abbotsford, B.C. and Saint-Hyacinthe, Quebec, a pork breeding facility in Ontario, and activists have even tried to remove animals from dairy farms.
In my own riding of Foothills, a farmer was startled to come to his farm in the morning and see that dozens of protesters had broken into the property and into a barn and were trying to take turkeys. There are numerous examples, and I fear the situation will get worse if producers do not see something is done. I do not think activists understand the full consequences of their actions. We want them to understand that they are endangering the safety of livestock, families, farmers and workers. We understand that they care deeply about the soil, food safety, animal health and the environment, but I think my colleagues in this room would also understand and agree with me that mental health and anxiety within agriculture is at a crisis.
These are important issues that we hope to address, but I have decided to focus my amendment to the Health of Animals Act to create a new offence. The act provides for the control of diseases and toxic substances that may affect animals or could be transmitted by animals to persons. The risk from viruses like the African swine fever are very real and potentially devastating to Canadian agriculture.
Currently, there is nothing that addresses trespassers, which is what this bill aims to change. I look forward to engaging with my colleagues as we work together to address this important issue and the safety of Canada’s food supply.”
Barlow announced the introduction of Bill C-205 on his webpage , including the following comments:
““Recently, more and more individuals have been trespassing on farms and food processing centres”, said MP Barlow. “This has the potential to cause massive biosecurity issues for animals and the individuals who work with them.”
This Bill will not, in any way. limit an individual’s right to peacefully protest on public property. However, it will increase the penalties for groups and organizations who encourage individuals to threaten the biosecurity of animals and workers.”
Is This Law Constitutional?
It is questionable whether this law would be within the jurisdiction of Parliament.
The Constitution Act, 1967 divides all law-making power in Canada between the federal government and the provinces. Section 91 lists the powers assigned to Canada – section 92 lists the powers assigned to the provinces. Any power that is not expressly assigned to the provinces in section 92 is a power belonging to Canada.
Section 92 assigns to the provinces the exclusive authority to enact laws in relation to “property and civil rights in the province”. This is why BC, Alberta and other provinces are lawfully entitled to have their own trespass laws.
Section 91 allows Parliament to legislate in relation to “The Criminal Law”. The Canadian Criminal Code contains several offences which contain an element of trespassing, but trespassing is not the offence. For example, section 177 of the Criminal Code prohibits “loitering or prowling” at night on someone’s property, but this offence is focused on the danger posed by those who loiter or prowl – it is not focused on trespassing per se. There is a reason why trespassing, on its own, is not an offence under the Criminal Code – because it seems the federal government does not have the jurisdiction to create laws in relation to trespassing.
I will conduct research on this point, but at first glance it appears questionable whether Canada has the authority, under section 91, to legislate in relation to the matters in Bill C-205.
[3A] Private Members’ Bills https://www.ourcommons.ca/About/ProcedureAndPractice3rdEdition/ch_21_2-e.html
[3B] Our Country Our Parliament https://lop.parl.ca/about/parliament/education/ourcountryourparliament/html_booklet/process-passing-bill-e.html
 Wikipedia https://en.wikipedia.org/wiki/Private_member%27s_bill
 Hansard Records – under “Health of Animals Act: https://www.ourcommons.ca/DocumentViewer/en/43-1/house/sitting-18/hansard