Case In Point
Ontario Court of Appeal Confirms No Charter Right to Deceptive Workplace Access
Date: June 15, 2026
In Animal Justice v. Ontario (Attorney General), 2026 ONCA 380, the Court of Appeal for Ontario unanimously reversed the lower court and upheld the constitutionality of the Security from Trespass and Protecting Food Safety Act, 2020 (Act) and its regulation, General, O. Reg. 701/20 (Regulation).
Although the decision arose from undercover investigations on farms, the Court’s reasoning has implications for employers across all sectors on the subject of employer control over workplace access and the limits of freedom of expression under s. 2(b) of Freedom of the Canadian Charter of Rights and Freedoms (Charter).
Background
The Act prohibits entry into an animal protection zone without the owner’s consent and provides that consent obtained under false pretences, including misrepresentation in seeking employment, is invalid. The Regulation creates exceptions for journalists and whistleblowers.
Animal Justice and others (the Activists) challenged the Act and the Regulation, which were enacted to address interference with farm operations by animal rights activists who would use deception to access farms to document animal mistreatment and then publicize it.
Activists’ Arguments
The Activists argued that the false pretences provisions violated freedom of expression under s. 2(b) of the Charter by targeting undercover exposés and penalising the misrepresentations that make them possible. They asserted that the purpose of the legislation was:
…at least in part…to prevent documentation of animal mistreatment and frustrate attempts to bring mistreatment to the attention of the public. It is therefore a direct attack on the Charter-protected freedom of expression of those who seek to publicize mistreatment of farm animals.
Lower Court Decision
The lower court agreed with the Activists. It found the provisions were not minimally impairing, and that the whistleblower reporting requirement constituted compelled speech, independently violating s. 2(b).
Court of Appeal Decision
Miller J.A., writing for a unanimous Court, allowed the appeal, reversing on all issues, and upheld the Act and the Regulation.
Legislative Purpose: Biosecurity, Not Expression
The Court held that legislative purpose must be determined from the statute’s text and stated objectives, rather than statements made during the legislative process. It then found that the stated purposes of the Act “are to prohibit trespassing on farms and other properties on which farm animals are located and to prevent other interferences with farm animals.” The Court characterized this as “protecting against threats to the biosecurity of the food supply chain caused by trespass,” accepted it as a pressing and substantial objective, and found that any limits on freedom of expression were minimally impairing and proportionate to the legislation’s objectives.
No Charter Right to Access Private Premises
The Court held that the claim was properly characterized as a positive rights claim (a demand for access to private property on one’s own terms), rather than a negative rights claim (a claim seeking freedom from government suppression of an expressive activity). It observed that positive rights claims under s. 2(b) of the Charter require proof of substantial interference with expression, an “exceedingly high bar” met “only in extreme and rare cases.”
The Court also found that the Act does not create new restrictions but “merely concretizes existing common law obligations.” Consent to enter premises must be obtained “freely and without fraud,” and consent obtained by misrepresentation is ineffective. The Court emphasized:
The respondents remain unrestricted in how they choose to communicate their messages about farm practices to the public. They can say what they like to whom ever they like. What they are restricted from doing is entering farms without informed consent.
This may impair their ability to gather the type of evidence they believe would be especially persuasive to the intended audience, in order to create a maximally impactful visual presentation. … Although information gathering from private sources can be an important precursor to some expression, it is not expression, and the good of expression cannot be reverse-engineered into constitutional protection of everything that precedes it.
Employer Right to Control Access
The Court affirmed that employers are entitled to know who they are dealing with and to assess associated risks. It noted that conventional employees are “presumptively aligned with the purposes of their employer,” whereas undercover activists may have competing allegiances. While they may be conscientious workers, they may not be. The Court held that an employer does not need to accept that risk.
Journalist and Whistleblower Exceptions
The Court upheld both the journalist and whistleblower exceptions. It noted that the journalist exception is broadly defined as “news media,” which includes any entity whose primary function is to disseminate information to the public on a regular basis and is not limited to traditional media. The Court noted it would not be a significant burden for an advocacy organization to establish a subsidiary or contract with such an entity to produce an undercover exposé. The Court concluded that the whistleblower exception (which, in its view, does not constitute compelled speech), read together with the journalist exception, provides “a broad range for gathering the type of images that the respondents say are essential to the production of exposés.”
Key Takeaways for Employers
No constitutional right to deceptive access.
The Charter does not protect access to a workplace obtained through misrepresentation. Employers can rely on security protocols, screening, and access controls without infringing protected expression.
Informed consent is a legitimate access requirement.
Employers are entitled to know whom they are dealing with and assess risk on that basis. Consent to enter or access must be informed and freely given.
Expression is protected; access is not.
There is a clear distinction between the freedom to communicate a message (protected) and the ability to access private premises to gather material for that message (not protected).
Legislative access controls are constitutionally sound.
Legislation that supplements common law trespass protections can withstand Charter scrutiny where it serves a pressing objective, is rationally connected to that objective, and falls within a reasonable range of minimally impairing measures.
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