02/01/2013 03:08 EST | Updated 04/03/2013 05:12 EDT

OSPCA search of dog breeder's home upheld

The Animal Care Review Board has ruled the Ontario Society for the Prevention of Cruelty to Animals did not violate the Charter rights of a retired woman from eastern Ontario when agents entered her home through the bedroom window to investigate allegations of cruelty to animals.

But despite the favourable ruling, the OSPCA said it will appeal the decision issued Thursday on the grounds the board does not have the jurisdiction and resources to make Charter decisions.

"The board is set up to have its hearings within 15 days, and the hearings are one hour hearings. They are simple and factual. But it was not in our view designed to deal with Charter issues which are complicated and lengthy and expensive," said Clayton Ruby, the lawyer representing the OSPCA.

The unusual case represented the first time the Animal Care Review Board has considered constitutional issues in a decision.

2011 search called into question

The case revolved around how OSPCA agents entered the Lyndhurst, Ont., home of Jessica Johnson, a former postal worker and part-time dog breeder, who was accused of failing to comply with a court order to fix the teeth of one of her dogs.

The case also attracted political interest, with the Ontario Landowners Association as well as former OLA president and MPP Jack MacLaren rallying around Johnson's cause, arguing the OSPCA had overstepped its bounds and violated Johnson's Charter rights.

Johnson said on May 18, 2011, she was having a nap on her sofa when an OSPCA officer entered her house through a window and let in other enforcement agents. They'd obtained a warrant after receiving an anonymous tip that her dogs were in distress.

The OSPCA enforcement agents ordered her to take her dogs to a veterinarian, but only one dog was found to have a serious health problem. Vicki, a Yorkshire terrier, had severe gingivitis, gum recession and tartar on her teeth.

Johnson was given two weeks to take Vicki to a veterinary dentist, but didn't comply, saying she didn't have the money. Johnson lives on a fixed income and said she couldn't afford to see a dentist herself.

Board rules search was reasonable

Johnson's lawyers disputed the evidence the OSPCA used to obtain the warrant, including the allegation that on a previous visit to her in March, the residence was unsanitary, with feces and urine all over the home.

A subsequent visit to the home four days later found the home was in satisfactory condition, suggesting OSPCA agents had overstated their assessment of the home, her lawyers argued.

But the board said while the assessment of the home may have been overstated, Johnson's recent prior history with the OSPCA and similar conditions observed in May provided sufficient grounds for a search warrant.

As for the search itself, Ruby had argued the agents entered the home in the company of police officers and with a search warrant and said they have to be able to enter a home to execute a search warrant for the OSPCA Act to have any power.

The board agreed with the OSPCA position, saying the search warrant was supported by reasonable grounds and said it was executed in a reasonable manner "given the circumstances of not receiving any co-operation from Appellant."

"We're unhappy with the part that they said they have the right to decide Charter issues and completely happy with the decision on the merits of the Constitutional arguments. The headlines focused on these allegations of an unreasonable and an improper search, and those allegations have been completely rejected," said Ruby.

OSPCA ordered to pay some costs for vet visit

The board also ruled the OSPCA had reasonable grounds, based on photographic evidence of Vicki's teeth, that the dog was in distress. But the board said there was no similar evidence for the other three dogs the OSPCA ordered her to take to a veterinarian.

The board ordered the OSPCA to pay Johnson $207.47 to pay for the cost of examining the dogs.

Kurtis Andrews, the Ottawa lawyer who represented Johnson, said he believes the board made the wrong decision with respect to whether Johnson's rights were violated.

"Our position was the search was unconstitutional and we maintain that decision," said Andrews.

Appeal expected

The OSPCA said it would appeal the decision in the next 15 days to the Ontario Superior Court.

An appeal of the Animal Care Review Board, if granted, would mean what amounts to an entirely new trial, as opposed to an appeal of a court decision, where only the evidence presented in the original hearing would be considered.

Andrews was surprised to learn the OSPCA was planning to appeal the decision, but said should an appeal occur, their response would be to ask the court to review any aspects of the decision they disagreed with.