Retired dog breeder accuses OSPCA of violating her Charter rights

SEPTEMBER 12, 2012, OTTAWA — A disabled retiree from Eastern Ontario is fighting back after the Ontario Society for the Prevention of Cruelty to Animals (OSPCA) charged her with failing to comply with an order to have dental work done on one of her dogs.

Jessica Johnson, a 64-year-old Lyndhurst resident, appeared Tuesday before the Animal Care Review Board in Ottawa, arguing that the OSPCA violated her Charter Rights by unreasonably targeting her.

In a case with clear political overtones, the OSPCA — which has come under attack for abusing its policing powers — hired high-profile Toronto lawyer Clayton Ruby to represent it at the board hearing. Ruby, along with another partner from his firm, Gerald Chan, was present at Tuesday’s hearing, which continues Wednesday.

Johnson, who needs a hip replacement and uses a walker to get around, breeds dogs at her home as a retirement hobby. “They’re my children,” she said in an interview Tuesday. “The dogs provide me with love and company.”

Johnson was napping in a living room chair last May 18 when an OSPCA agent entered her house through a bedroom window. The agent showed Johnson a search warrant and opened her front door, admitting five other OSPCA agents and provincial police officers.

Johnson testified that she was startled to see the agent. “I said, ‘What the hell are you doing in my house?’ The agents, she said, went through the house, taking pictures and checking the condition of her five adult dogs and nine puppies.

They then issued an order requiring her to take the adult dogs to a veterinarian to address “gum and dental issues.” The order was amended in August to apply to just one of the dogs, a nine-year-old yorkie named Vicki.

Veterinarian Julia Brown, who examined six of Johnson’s dogs, including Vicki, on July 30, testified that Vicki was the only one with an immediate health problem. She had severe gingivitis, significant tartar and gum recession, Brown said.

If not treated, Brown said, Vicki’s gum infection would worsen and decay and tooth loss would result. She estimated the cost of treatment at between $500 and $1,000.

Johnson, who lives on a small fixed income and can’t afford to go to the dentist herself, didn’t have the money to do the work ordered by the OSPCA. That led the agency to charge her with failing to comply with an OSPCA order. No date has yet been set for her trial in provincial court.

“Is it reasonable to force a woman of limited means who herself can’t afford to go to the dentist to take her dogs to the vet for dental work?” asked Kurtis Andrews, Johnson’s lawyer.

Andrews argued that the OSPCA agents had “no reasonable grounds that animals were in distress” when they entered Johnson’s home.

He said the society’s unreasonable behaviour began when it obtained a warrant to search his client’s home using methods that were “invalid or unconstitutional.”

Andrews said the OSPCA’s action’s would “shock public opinion” and bring the administration of justice into disrepute. “A review board should not be seen to sanction this sort of treatment of citizens of Ontario.”

But Ruby said the agency had valid grounds for obtaining a warrant, used “minimal force” to enter Johnson’s house and its agents were at all times polite and respectful.

“No constitutional rights were violated,” he said. “At the end of the day, you will find that these people acted properly.”

This is the first time that the Animal Care Review Board, which falls under the Ontario Ministry of Community Safety and Correctional Services, has considered a Charter argument.

The first day of the current hearing was held in July, and consisted of legal argument about the board’s jurisdiction to consider a Charter argument. Ruby argued that it had no jurisdiction, but the board ultimately ruled that it did.

Andrews said his client’s legal bill is well into five figures. Normally, the board has no power to make an order on costs, but if Johnson wins her charter argument, Andrews said he would seek costs as part of a “just remedy.”

If the board rejects her Charter argument, Johnson said she plans to reply on fundraising to pay her legal bills.

A former postal worker who has been breeding dogs since 1996,Johnson has been on the OSPCA’s radar screen in the past.

In 2011, agents removed her dogs for four days, and presented her with a bill for $2,449 when they returned them, which she could not pay. “I didn’t make that much money in a month,” she said.

Johnson has the support of Jack MacLaren, MPP for Carleton-Mississippi Mills, an OSCPA critic who introduced a private members’ bill earlier this year to strip the agency of its policing powers. The bill was defeated in March.

MacLaren has argued that OSPCA enforcement officers are in a conflict of interest because fines they levy represent the charity’s main method of fundraising.

MacLaren is a past president of the Ontario Landowners’ Association. Another person with OLA ties, Sean Carmichael — president of its Leeds and Grenville chapter — testified on Johnson’s behalf Tuesday.

Though Carmichael’s testimony was brief and limited in scope, Ruby spent considerable time trying to discredit him. He charged that Carmichael harboured a grudge against the OSPCA over a past incident and asked about the OLA’s involvement in the case.