Striving for a modus vivendi with the Ontario SPCA

Sunday, March 3, 2013

Farmers have long been wary of the police powers wielded by this animal welfare enforcement agency. Now a non-advocacy task team of farm groups, provincial ministries and, yes, even the OSPCA, is looking at ways to improve the relationship

by DON STONEMAN

In western Ontario's livestock-raising belt, farmers have been busy letting their farm organizations know how they feel about the Ontario Society for the Prevention of Cruelty to Animals (OSPCA), an enforcement body they distrust and fear, writing up resolutions and voting to send them to their provincial policy conferences later in the winter.

In Perth, Oxford and Huron Counties, pork producers have called for more accountability from this charitable organization with its wide-ranging police powers to look after the welfare of animals in the province. In particular, they are seeking changes to the Ontario SPCA Act and for clarity on the definitions of "distress." Similar resolutions were passed at the Perth County Cattlemen's Association meeting.

Meanwhile, behind the scenes, a non-advocacy task team of farm groups, provincial ministries and, yes, even the OSPCA, is looking at ways to alleviate the anxiety and fear that livestock producers are feeling. How can this apparent paradox be?

Arnprior dairy farmer Debra Pretty-Straathof doesn't think it is paradoxical at all. The Ontario Federation of Agriculture (OFA) vice-president says that the "task team," consisting of representatives of commodity groups, including equine, the OFA, Christian Farmers Federation, Farm and Food Care Ontario, the Ontario agriculture ministry and the OSPCA, is looking at teaming industry-savvy people with OSPCA agents when they deal with farm issues. Their model is a memorandum of understanding (MOU) signed last year by the OSPCA and Dairy Farmers of Ontario (DFO). (A previous memorandum was cancelled when an amended Ontario SPCA Act came into force in the spring of 2009.)  

According to a summary of the agreement, the OSPCA agreed to contact DFO authorities at least 48 hours before conducting a joint inspection of a licensed dairy farm property. (There is an exception when animals are in immediate distress.)  DFO will report cases of abuse or neglect that they can't solve under their own regulation. Perhaps most important, the two groups will meet regularly to share experiences relating to animal care.

Alex Hamilton, head of field services for DFO, says field staff are available when there is a complaint on a dairy farm in Ontario. "We are very happy to be working with the OSPCA," Hamilton says. "We are doing what we can to make them more aware of dairy realities. In the past there has been about half a dozen complaints about dairy farms in a year. They may have slightly increased now as the general public is more concerned about animal care," he says.

The chair of the task team is Dr. Greg Douglas, chief veterinarian for the province of Ontario. Douglas says the genesis of the task team was the two private member's bills that eastern Ontario MPP Jack MacLaren brought before the legislature last spring, "and essentially the lack of a strong relationship between the enforcer/regulator and the farm commodity groups."

Each commodity is negotiating its own MOU with the OSPCA. Marketing boards with regulatory powers will likely get there first, Douglas says. Non-supply-managed groups may never get MOUs in place, but their representatives are exchanging information about farm practices with the OSPCA. Douglas says this is a long-term project and he expects the task team to be meeting for some time. Right now the group is meeting every six weeks with the third meeting held in early January.

Agriculture is complex, Pretty-Straathof says. "Experience to date has shown that you can't be an expert in 17 different commodities."

Grassroots groups react
This represents a collaborative approach that even Perth County pork producer John Nyenhuis can appreciate.

Last year, Nyenhuis ran afoul of a controversial – and some critics go so far as to say vague – section written into the Ontario SPCA Act three years before. He pleaded guilty to causing an animal to be in distress and permitting an animal to be in distress, both provincial offenses under sections of the Ontario SPCA Act. His offense was trucking pigs with abdominal hernias to a provincial abattoir, rather than euthanizing them on the farm. The farmer paid a fine and court costs of $880, and now he and his family operate under the fear of a $25,000 fine or worse if there is a repeat offense.

Grassroots pork and beef groups are reacting strongly, with resolutions to their respective annual meetings condemning what they describe as the vagueness of some parts of the Ontario SPCA Act. The Ontario Landowners Association (OLA) has also taken up Nyenhuis's cause. The farmer says he felt that mainstream agriculture wasn't paying attention and was happy for the support from the OLA. That was before the resolutions began flying at county producer meetings.

Nyenhuis still insists he was following the guidelines published by Ontario Pork and Farm and Food Care Ontario. But a provincial meat hygiene inspector thought otherwise, sparking a chain of events that ended up with Nyenhuis receiving a summons to appear in court. (See story below.)

Some pork producers, who spoke on the condition of not being identified, say the animal care bar has moved and that something which seemed reasonable two years ago doesn't pass muster anymore. Douglas does not disagree. "Animal welfare is on the national stage. As society changes, expectations will likely change."

The task team's approach mirrors what Nyenhuis would like to see. "All of my kids want to farm. To me, this is a threat that is getting out of hand."

For her part, Pretty-Straathof sympathizes with Nyenhuis's position. "If the farmers have codes and the farmers have guidelines and they follow them, what protection is there for the farmer who truly believes he is following the rules? If your only protection is the courts, at what point do you cut your losses and say, fine? You are really up against it."

While the OFA is taking part in the non-advocacy task team process, it is also lobbying Madeleine Meilleur, the minister of community safety and correctional services. The OSPCA is her responsibility. (See story below.) Neither the task team approach, nor the federation's advocacy platform is about lowering the standard of care for farm animals, Pretty-Straathof stresses. "This is about how the process is delivered  . . . It's about respect for the farmer and not about 'looking for something to be wrong' when an OSPCA inspector or agent goes onto a farm."

Both the task team and the OFA lobby position see their mandates as affecting farms with Farm Business Registrations (FBRs). Dealing with commercial farms where there is no FBR for religious reasons is something that still needs to be worked through, she allows.

In 2011, the Ontario SPCA reported receiving 1,839 complaints involving "farm animals" and, of those, about 1,200 involved horses. Pretty-Straathof says that, under the current reporting system, there is no way to determine which involve commercial farms and which are rural residents with a couple of horses. Douglas says the OSPCA is working on a better way of reporting that reflects farm calls.

Supply-managed groups like dairy and poultry have field staff who can inspect licensed farm premises, says Richard Horne, policy advisor for the Ontario Cattlemen's Association. The Cattlemen are likely to draw upon volunteers, perhaps even those who are trained to work with Farm and Food Care Ontario's helpline.

The difference is that helpline calls are kept confidential and are "farmer to farmer." The OSPCA must respond to reports of animal abuse or neglect and under an MOU, would bring in a knowledgeable farm representative when responding to those reports.

Dismaying experience
The Animal Care Review Board is the appeal mechanism that animal owners must use to get regain control of their animals when they are seized by the Ontario SPCA.

Pretty-Straathof sat through an Animal Care Review Board (ACRB) hearing in Smith Falls last year where a retiree pet owner was trying to retrieve her dog which had been seized, ostensibly because its teeth had tartar on them. It was not an agricultural issue, but the OFA vice-president found it worthwhile, describing it, ironically, as "a learning experience."

 "I was dismayed with the way that process worked – or didn't work," Pretty-Straathof says. "A number of times the ACRB chair asked the OSPCA's lawyer how she should proceed. I came out of there thoroughly unimpressed."

The vagueness of the definition of distress, as exemplified by the inclusion of tartar on a dog's teeth, resonates among livestock farmers across Ontario.

Last year, MPP Jack MacLaren introduced two private members's bills to the legislature. Bill 37, which called for handing OSPCA's powers to the Ontario Provincial Police, was removed and replaced with Bill 47, which called for the powers being handed over to the Ontario agriculture ministry.

Pretty-Straathof says the OFA could not support MacLaren's first bill. With his second attempt, "Jack went a long way towards making the changes that we wanted."

Last fall, a letter from Ontario Pork sent on behalf of the province's three federal pork plants advised producers to euthanize pigs if the rupture was larger than the size of a softball.  

Nyenhuis says he knows a producer with a similar-sized operation who now euthanizes as many as 38 or 40 pigs every two weeks because of ruptures. At that rate, more than 1,000 pigs a year will end up in that farm's deadstock bin from ruptures alone.

Keith Robbins, manager of communications and consumer marketing for Ontario Pork, says that, where herniated pigs are shipped to a federal plant, public health can be compromised if a pig's guts burst while the animal is in the truck or in the plant. Farmers were warned last fall that pigs with ruptures larger than a tennis ball might be at risk.

Robbins says that, in the past, Ontario Pork has preferred that the term "distress," as it is applied to pigs, be discretionary. "It allows for some flexibility and common sense to play into the assessment," rather than the definition being "prescriptive." A prescriptive definition of what is a hot humid day in the summer might result in pigs not being delivered to a packing plant, he points out.

Farmers may be focusing on ruptured pigs now, but Crystal Mackay, Farm and Food Care Ontario's executive director, says the condition of cull dairy cattle brought to sales barns should also be a concern. Mackay, who grew up on a Renfrew County dairy farm, says some farmers are waiting too long to decide to ship a cow that is at the end of her milking life. "A cull dairy cow doesn't have a lot of energy or body condition."  She might not be fit enough to handle a long journey to one of the few plants still processing cows.  

Her advice to farmers: "Do your body condition scores early and do your culls early." Cull dairy cows travel through the Ontario Livestock Exchange in Waterloo, which she describes as "the most public stockyards in Canada" because the farmers' market is next door.

Nyenhuis was the lead speaker at a meeting of the Perth-Huron Landowners Association in January attended by an estimated 300 people concerned about the powers of the OSPCA.

Ottawa lawyer Kurtis Andrews thinks another way to deal with the errant Ontario SPCA Act is to challenge it under the Charter of Rights and Freedom. Under Section Seven of the Charter "a law cannot be vague. You are supposed to be able to understand it," Andrews says. Ottawa farmer Tom Black, president of the Ontario Landowners Association, says funds are being raised to pay for such a challenge. BF

What the legislation says

When Perth County pork producer John Nyenhuis delivered pigs to a provincial abattoir in late May last year, it started a chain of events.

Nyenhuis was charged under Section 11.2 (1) and 11.2 (2) of the Ontario SPCA Act. (Both of these sections were written into the Act in 2008.) According to Section 22 (1) of the same Act, "The Lieutenant Governor in Council may make regulations, (a) prescribing activities that constitute activities carried on in accordance with reasonable and generally accepted practices of agricultural animal care, management or husbandry for the purposes of clauses 11.1 (2) (a) and 11.2 (6) (c).
(The revised OSPCA Act is available online at http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90o36_e.htm )

According to Susan Murray, senior communications advisor with the Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA): "In provincially licensed abattoirs, our policy requires meat hygiene officers to contact a ministry veterinarian when they identify animals with abnormal conditions. Ministry veterinarians, in turn, are required under the OSPCA Act to report to the OSPCA any situation where they have reasonable grounds to believe that an animal has been, or is being, abused or neglected."

The Canadian Food Inspection Agency (CFIA) has a role in humane issues as well. "CFIA has legal authority to inspect at provincial plants for compliance with humane transport requirements under the Health of Animals Act, even if they are not federally regulated," says Lisa Murphy, CFIA media relations. "OMAFRA does not inspect for humane transport, but will refer concerns or instances of animals in distress to CFIA, if we don't happen to be present at the time."

So-called belly ruptures are a fact of life for pork producers and veterinary experts say the incidence in commercial herds ranges from 0.4  per cent of market hogs to 6.7 per cent, depending upon the genetic boar lines. Mycotoxins in the feed can accentuate it.

Last year, Ontario producers marketed 4.9 million hogs. Do the math. BF

OFA seeks more accountability, more clarity

Ontario Federation of Agriculture vice-president Debra Pretty-Straathof says the federation has distilled its objections to the current system down to four.

1. Accountability. "We want the OSPCA to annually report to the Legislature on all their activities; investigations, enforcement activities, case outcomes, appeals and the training and qualifications of enforcement staff." The model would be reports made to the legislature by the provincial auditor or the environmental commissioner. Currently, the Ontario SPCA reports back to its board. Ideally, Pretty-Straathof says, the OSPCA would report to the Ontario agriculture ministry on farm incidents.
2. Warrantless searches. The federation wants repealed the current provisions that allow for entry onto property without a warrant and when an officer believes that there is an animal in immediate distress. Enforcement officers have always had the authority to enter without a warrant if they see what they think is an animal in immediate distress.
3. Clarity for the term "immediate distress." The OSPCA Act defines distress as "the state of being in need of proper care, water, food or shelter or being injured, sick or in pain or suffering or being abused or subject to undue or unnecessary hardship, privation or neglect." Pretty-Straathof points out that in section 12, which contains the provisions related to entry without a warrant, immediate distress is defined as "distress that requires immediate intervention in order to alleviate suffering or to preserve life."
4. Separation of the OSPCA's dual, and sometimes conflicting, roles as the enforcer of both provincial and federal animal protection laws and also a registered charity that actively raises funds.

Pretty-Straathof notes that other provinces have special agents who deal with farm incidents and report to the agriculture minister. BF