The Constitutional Elephant in the Room: Section 8 Charter Issues with The Animal Care Act

The Animal Care Act (Manitoba) is touted as one of the most comprehensive animal protection statutes in Canada. Its strength derives largely from the unparalleled entry and search powers that it confers upon animal protection officers appointed under the statute. Sections 8(5) and 10.3(1) of The Animal Care Act respectively permit warrantless entries and searches of non-commercial non-residential premises and dwellings.

This article examines whether ss. 8(5) and 10.3(1) of The Animal Care Act can withstand s. 8 Charter scrutiny, and, if not, whether these sections are justifiable under s. 1 of the Charter. This article contends that although The Animal Care Act provides for regulatory search powers, that fact alone does not diminish one’s expectation of privacy as a matter of course. Rather, the extent of the privacy expectation with respect to a regulated activity depends on context. This article suggests that a fulsome appraisal of context with respect to The Animal Care Act must consider (1) the stigma, publicity and consequences that attach to animal cruelty charges; (2) the extraordinary scope of the ss. 8(5) and 10.3(1) entry and inspection powers; and (3) the inadequate or non-existent safeguards provided for by The Animal Care Act. As such, the system of prior authorized searches that the Supreme Court of Canada outlined in Hunter v Southam should apply to The Animal Care Act. This article further questions whether, given the availability of tele-warrants under The Provincial Offences Act, this overreaching is necessary.

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