Who is silenced by the animal health law?
You may have read about a provision in the proposed Animal Health Act which would make it illegal for journalists or scientists to report on animal illnesses at fish farms or other agricultural operations. The Province story said:
The Animal Health Act, expected to be passed into law by month's end, expressly over-rides B.C.'s Freedom of Information Act, duct-taping shut the mouths of any citizens - or journalists - who would publicly identify the location of an outbreak of agriculture-related disease such as the deadly bird flu. … Should you as a citizen hear about [an] outbreak, or if you were an employee at an affected farm, you would be breaking the law by speaking publicly about it or bringing concerns to the media.
This makes it sound like these sections are directly targeted at people like fish farm activist, Alexandra Morton, who has been documenting a series of disease outbreaks at fish farms. Ms. Morton certainly seems to feel that way:
With Provincial Minister Don McRae putting forward legislation that will make it punishable by law to talk about where farm salmon diseases are occurring, I feel compelled to share as much as I can about the current, growing epidemic before I am no longer allowed to.
However, the Minister of Agriculture, who is responsible for the Bill, insists that that the section doesn’t apply to citizens or journalists. In an exchange between the Minister and Opposition Agriculture Critic, Lana Popham, the Minister explains:
The references in section 16 to section 17 and 18 imply that the "person" in section 16 takes its meaning from those sections. … The term "person" in this act does not refer to the media. It does not refer to independent scientists or individuals making inquiries.
So who is right?
We’ve reviewed the Animal Health Act, and we think that a court is likely to interpret the intent of section 16, as it is currently written, in the way that The Province Paper suggests, and not according to Minister McRae’s narrower interpretation.
That being said, the Minister seems sincere when he claims that the government intends the provisions to apply to government staff only. Certainly he is correct when he suggests (in an earlier interview with The Tyee) that this law, if it applies to journalists and citizens, is likely unconstitutional:
I don't know how that would stop, because we live in Canada, we have a constitution, charter of rights and freedoms, so there's nothing that would be stopping you from asking questions. … I don't think that would be the intent of the bill, nor do I think it's possible. We don't live in that kind of a country.
We have written to the Minister explaining why the law, as currently drafted, is as sweeping as the Province and Ms. Morton believe, and asking him to amend the Bill to clarify its intent.
As drafted, section 16 is the broadest of the three provisions, applying to all persons, except to those persons permitted to do something under sections 17 or 18. Person is not defined in the Act or in this section, and there is nothing in this provision or in subsequent sections that indicates an intention to limit the ordinary meaning of the word “person”, which case law has established to be a very broad, inclusive meaning. Contrary to your statement, a court is unlikely to imply an intent to narrow the use of “person” in section 16 merely from the fact that two other sections are referenced as an exception to the broad rule in section 16. It is far better to make such an intent explicit. …
You are likely correct when you point out that such legislation would not be allowed to stand in Canada, but let me suggest that a costly Constitutional challenge is not the most efficient or effective way to clarify a drafting error. Let me also point out that individuals reading such legislation may well adopt the narrower interpretation we have described above, attempt to comply with it, and thus be silenced, whether or not this provision is actually ever used in this way. …
I strongly advise that you seek legal advice on how best to achieve your legislative intent and make a relatively simple amendment to Bill 37 before it is passed.
We will keep a close eye on these provisions as they go forward and, if they are enacted, will maintain an active interest in any resulting legal challenges.
Silencing government scientists
This is not to imply that these provisions are OK – as long as they are limited to government staff. The Freedom of Information and Privacy Act strikes a difficult balance between privacy and public access to information. It sets up a system to ensure public oversight of how that balance is maintained.
Therefore, we are concerned whenever laws are passed that override that Act to allow government to determine what and when the public is entitled to know, behind closed doors.
By Andrew Gage, Staff Lawyer