R v Elite Farm Services Ltd., Dwayne Paul Dueck and Sofina Foods Inc./Ailments Sofina Inc., 2021 BCSC 2445

Sofina Foods Inc. is a national protein processing corporation that operates a chicken processing plant in Port Coquitlam. They contracted BC-incorporated Elite Farm Services Ltd., whose president and director is Dwayne Paul Dueck, to catch and load broiler chickens from independent chicken producers.

In May 2017, Joshua Latawiec was briefly employed by Elite Farm Services as a chicken catcher, while volunteering for the non-profit organization Mercy for Animals (MFA). He took notes and made video recordings of inhumane conduct toward the chickens that he witnessed during the loading activities that included throwing, kicking and bowling with chickens which he turned over to Mercy for Animals who in turn submitted to the Canada Food Inspection Agency (CFIA). The CFIA conducted an investigation which resulted in 38 charges being sworn in November 2018. In March 2020, the Crown elected to proceed with a direct indictment on 12 charges relating to animal cruelty due to the unlawful loading of an animal in a way that would likely cause injury or undue suffering.

After several pre-trial applications, Sofina Foods and Elite Farm Services both plead guilty to two counts of animal cruelty and each received the following sentence according to the principles of general and specific deterrence:

  • Fines in the amount of $300,000 per corporation; and
  • Three years of probation subject to these terms set out below:
  • Training on loading and catching chickens with a particular focus on animal welfare, delivered by an animal welfare expert or the equivalent and repeated annually; and
  • Independent third-party auditor to perform random spot audits during loading and catching activities; with Sofina Foods Inc., the audit is of farms conducted by trained Field Service Representatives employed by the corporation and subject to their own independent third-party audit of processes.

The judge noted that both Elite Farm Services and Sofina Foods had made significant changes to their operating procedures since the investigation, which includes dismissal of all employees involved with the harm caused to the chickens and updating their training processes. Sofina has hired a Vice President of animal welfare and developed an internal animal welfare team.

In CanLII there are several rulings relating to this case due to the pre-trial applications, which are noted briefly below with links attached:

2021 BCSC 657: Reasons for Ruling on Application for Particulars

The defence sought an Order that the Crown provide particulars regarding date, time and location for each alleged event and video relating to the 12 charges, maintaining that it was necessary for the accused to have a fair trial and to make full answer and defence. The Court dismissed the application, concluding that the accused had sufficient information in the more than 3,000 pages of disclosure, 240 video clips related to the 12 counts of the indictment to which the Crown attached a schedule linking the date, offence, and location to those clips they intended to rely on in trial and a report from the Crown’s veterinary expert that had already been submitted to them.

2021 BCSC 1583: Reasons for Ruling on Admissibility of Video Recordings

The accused objected to the 222 video recordings the Crown sought to admit on the basis that they were unfair, were not representative of the facts, showed evidence of having been altered, and their probative value did not outweigh the potential prejudice to the accused and the administration of justice in general. The Court conceded that the lack of continuity in the recordings raised a red flag in terms of how much they should be given as evidence, but that alone did not limit their admissibility. It was determined that the Crown had established on the balance of probabilities that the videos were admissible at trial, and the judge reminded the accused that the goal of a fair trial is one that gets to the truth and is not meant to be a perfect trial nor one that is more advantageous to the accused.

2021 BCSC 1587: Reasons for Ruling – Stay Application

The accused sought a stay of proceedings prior to the commencement of the trial based on a claim that their right to make full answer and defence and to a fair trial had been irrevocably harmed because of the deletion of text messages, emails and metadata by Joshua Lataweic. They claimed that the prejudice resulting from the CFIA’s investigations which relied on that evidence submitted by the MFA from Mr. Lataweic requires that the charges be stayed. The Court determined that the accused failed to prove that Mr. Lataweic intentionally deleted any of the evidence or to establish that they suffered harm or prejudice as a result, and dismissed the application.

2021 BCSC 1589: Reasons for Ruling on Disclosure Application

The accused sought a stay of proceedings and that an obligation should be imposed requiring the Crown and the CFIA to produce the fruits of the investigation gathered by what they consider a vigilante, third party investigator: Mr. Latawiec and MFA. The applicants submitted that because a third party investigator lacks constitutional or ethical oversight, they were unable to confirm that all evidence from the investigation had been disclosed which violated their section 7 rights in the Charter to make full answer and defence to their charges.

The Court determined that the accused failed to establish that the Crown should be subject to such an obligation because it would have required the Crown to relinquish control of an investigation to the accused which is contrary to the adversarial system and that there is already a system for disclosure in place that addresses s 7 Charter rightsThe application was dismissed.

2021 BCSC 2061: Vukelich Ruling

The accused filed an application claiming that their section 8 Charter rights to be secure against unreasonable search or seizure had been violated by the video recordings, and sought their exclusion under section 24(2) of the Charter. The Court found that the accused had lacked standing to claim a s 8 breach because the recordings were not taken by a government agent or under any governmental authority, but by a private agent acting on behalf of a third party entity. The conversations in the recording were of employees during their normal course of work, not in any supervisory or administrative capacity regarding the inner workings of the company, so a reasonable expectation of privacy is not applicable. The application was dismissed.

2021 BCSC 1996: Reasons for Judgment re: Section 11(b) Charter Application

The accused filed an application for a stay of proceedings alleging that an infringement of their section 11(b) Charter rights to trial within a reasonable time: 30 months for superior court trials, according to the rules established in R v Jordan. The Court found that the total period of delay from the first appearance of November 14, 2018 to the anticipated end of trial of March 31, 2022 was over 40 months or 1,233 days, however after subtracting the delays caused by the defence in adjournments, waivers, and pre-trial applications as well as the COVID-19 court closure which amounted to 80 days, the actual delay was only 659 days or 21.67 months. Because the delay fell within the 30 month Jordan threshold, the application was dismissed.

R v Chen, 2021 ABCA 382

Court of Appeal of Alberta decision on sentencing with some precedent-setting statements marking animal cruelty as a crime of violence and that “there can be no disputing that animals are sentient beings that are capable of experiencing pain and suffering and can be victims of violence” (para. 33).

Facts: 19-year-old accused plead guilty to beating his 10 month old dog Cinnamon, claiming it was ‘discipline’. The beating lasted for approximately 20 minutes, until police arrived. Injuries to the dog included a broken paw, broken teeth, scleral hemorrhaging in one eye and blunt force trauma to right hind leg, head and abdomen. Accused plead guilty to causing unnecessary suffering to an animal, contrary to s 445.1(a) of the Criminal Code.

Initial Sentence: 90 days intermittent incarceration, plus two years probation. Based on sentencing principles of denunciation and deterrent, the sentencing judge held that a Conditional Sentence Order (CSO) would not be appropriate “given the brutality of the attack and the moral blameworthiness of the respondent” (para. 2).

First appeal: Accused appealed his sentence. On appeal the court overturned the sentencing judge’s decision, concluding that a CSO ought to have been imposed given the primary objectives of sentencing in this case, which they viewed as deterrence and rehabilitation. A one year Conditional Sentence and two years’ probation was ordered. For this first appeal see here.

This appeal: Crown was granted permission to appeal, which raised two issues:
(1) What are the sentencing principles applicable to animal cruelty cases having regard to 2008 amendments to the relevant Criminal Code provisions and jurisprudence following those amendments; and
(2) Did the appeal justice give sufficient or any deference to the decision of the sentencing judge in this case?

Held: Initial sentence of 90 days intermittent and two year probation was restored based on principles of denunciation and deterrent.

Details: The Court took note of the ‘enforcement gap’ regarding animal cruelty cases where the sentence often fails to reflect the gravity of the conduct and noted the amendments to animal cruelty provisions of Criminal Code in 2008 are an indication of the gravity of the offence and an indication that Parliament “wanted such offences to be punished more harshly” (para. 24). The objectives of the amendments are: to better reflect the serious nature of the crimes of animal cruelty, provide better protection for animals who are the victims of such crimes, and enable flexibility in sentencing.

The Court noted that in this case there was deliberate cruelty to animals which is “the most egregious form of animal abuse” (para. 22), and that animals are “sentient beings that experience pain and suffering, must be treated as living victims and not chattels. Smashing a pet through a window is not the same as smashing a window” (para. 27).  Further “An aggressive attack on an animal intended to willfully cause unnecessary pain, suffering or injury is properly characterized as violence” (para.35). Despite being a youthful first-time offender, where normally rehabilitation would be the main sentencing factor, this is not the case in scenarios of offences involving violence. In cases of animal cruelty deterrence and denunciation must be the primary sentencing factors.

The court also recognized that “Not every contravention of the animal cruelty provisions will be a crime of physical violence; crimes of neglect, depending on the circumstances, can be equally serious and sufficiently grievous to diminish, or eliminate, the likelihood of a CSO.” (para. 36).

The Court examined various aggravating and mitigating factors and found that ‘provocation’ due to the animal’s behaviour, including defecation and urination, is not a mitigating factor (para. 43), nor is the fact that the animal may have made a full recovery (para. 42). The Court also rejected the defence’s argument that the accused’s cultural norms and background should count as mitigating circumstances, stating that “while these factors might explain conduct, they cannot diminish moral culpability” (para. 46). Aggravating factors included abuse motivated by a desire to assert control or exact revenge and breach of a position of trust (para. 44).

Greater consideration should be paid to prohibition orders (s.447.1(1)(a)) and restitution orders (s.447.1(1)(b)) (neither of which were requested or considered in this case).

R v DLW, 2016 SCC 22

The accused was convicted on 13 charges of sexual offences involving his two step children. This included one count of bestiality pursuant to section 160(1) of the Criminal Code, R.S.C., 1985 C. c-46. The family dog licked the vagina of the older step-daughter, and the accused had aided and abetted this act by bringing the dog into the bedroom, applying peanut butter to the step-daughter’s vagina and then videotaping the interaction.

At trial (2013 BCSC 1327) the judge held that penetration was not an element of the offence of bestiality, and found the accused guilty (see para 300 onwards). He held that section 160 must be read in a modern context, and the offence must reflect current views of what constitutes prohibited sexual acts – sexual offences no longer require full penetrative acts to be committed.

The accused appealed to the British Columbia Court of Appeal (2015 BCCA 169) and his appeal was allowed. The modern provisions on bestiality originated from the English common law offence of buggery or sodomy, which required penetration. This offence was codified in 1869. While there had been subsequent amendments to the relevant provisions, including the separation of anal intercourse from bestiality, penetration did not cease to be an element of these offences by virtue of those amendments. The law criminalizing particular conduct must be certain and definitive. Bauman C.J.B.C dissenting.

The Crown appealed to the Supreme Court of Canada. The appeal was dismissed, the majority again referring to the common law origins of the offence which required penetration. Despite the subsequent amendments to the Criminal Code, Parliament had not further defined bestiality. The definition of bestiality had not changed but had retained the well-understood legal meaning of this ancient legal term, which included penetration. Abbela J. dissenting.

NOTE: Subsequent to this case the bestiality provisions of the Criminal Code were amended by parliament in June 2019 (see Bill C-84) to make clear that penetration was not a required element of the offence.

R v D.R., 2018 ONCJ 900

This was a section 445.1 and 445(2) Criminal Code case concerning a 16-year-old youth who killed a rabbit at his group home. After getting into an argument with a staff member, the accused went outside, climbed into an enclosure in which rabbits were kept and removed a rabbit before strangling him/her to death.

The accused raised the common law defence of necessity, arguing that he killed the rabbit because he/she was very cold and staff would not let him inside with the rabbit to warm him/her up. In rejecting this defence, the court referred to the three requirements in R. v. Perka, [1984] 2 S.C.R. 232: there must be imminent peril; the accused must have had no reasonable legal alternative to the course of action he or she undertook; and there must be proportionality between the harm inflicted and the harm avoided.

In finding the accused guilty the court considered in detail the case law on the terms “unnecessary” and “wilfully”.

For sentencing, see D.R. [2019] O.J. No. 4177

R v Helfer, [2014] O.J. No. 2984

Helfer pleaded guilty to criminal harassment, two counts of assault with a weapon, one count of break and enter, and one count of maiming a dog. .

Before the events culminating in criminal charges, Helfer was in a verbal altercation with his mother; in whose property he had been living that resulted in the police being called. Helfer returned later in the day after being told to leave, demanded to be let in, with him banging on the front door, saying that he wanted to get his dog, which was inside the residence. Helfer retrieved the dog without going into the residence. He then beat the dog viciously with multiple instruments. The end result was that the dog was dumped in a nearby dumpster with a wheelbarrow, with the dog barely clinging to life.

The key issue at trial was the length of sentence. Defence asked for three months, the crown for three years. Complicating this issue was that the Criminal Code in 2008 was amended, so that offences concerning cruelty against animals became indictable offences, which the crown said was a signal from parliament that longer sentences should be given to those who abuse animals.

In support of its arguments, the Crown submitted a petition by concerned residents who asked for the maximum possible sentence under the Criminal Code. Crown also submitted that when parliament amends a law to provide for a greater sentence, the court must act accordingly with a change in sentence. Crown also submitted that denunciation and deterrence must be emphasized here.

The judge imposed a two year sentence. Aggravating factors were Helfer’s harassment of his mother, and that he returned to the residence despite the fact police were called earlier in the day; the sheer violence towards the dog, the breach of trust aspect (Helfer was the dog’s owner), and the fact this was a senseless attack perpetuated by Helfer, in order to get back at his mother. Helfer’s prior criminal record for violent offences, and the impact on the community members who saw the attack and had to deal with the aftermath at the OPSCA.

Mitigating factors for sentencing were Helfer’s guilty plea, his expression of remorse, and the fact that he cooperated with the psych assessment, his youth (he is 24), the fact that his adult criminal conviction was five years in the past, his cognitive difficulties (ADHD and learning disability), his ability to feel some sympathy towards other individuals, and the fact that this was a spontaneous outburst of violence, rather than a calculated attack (the judge was of the belief the former was easier to manage).

The judge accepted the Crown’s argument that after the amending of the Criminal Code, those who commit animal cruelty will face harsher sentences than in the past. However he largely disregarded the petition, saying that these have no place in Canadian courtrooms.

R v Gerling, 2016 BCCA 72

Gerling operated a dog breeding facility in the Fraser Valley. In September 2010, 14 dogs were found in poor condition and seized by an officer of the BCSCPA, in accordance with s. 11 (a) of the Prevention of Cruelty to Animals Act. After the seizure the animals were inspected by a veterinarian, who found serious health problems which had been left festering for at least a few months. Gerling was later convicted at trial of willfully causing unnecessary pain, suffering, or injury to an animal, and failure to provide suitable and adequate food, water, shelter or care, contrary to s. 445.1(1)(a) and 446(1) (b) of the Criminal Code.

Gerling appealed the conviction. Issues on appeal were whether animals could be seized without giving owners a chance to relieve their distress, and how the mens rea is to be applied for the Criminal Code sections.

Appeal judge concluded that the SPCA Act gives officers discretion to seize animals, without giving recourse to the owner to relieve the animal’s distress if the owner “had not taken and would not be able to take the steps necessary to relieve their distress” ( Ulmer Test). Judge concluded there was ample reason for the officer to exercise her discretion here as there was a long history of SPCA orders regarding Mr. Gerling’s improper standard of animal care.

Judge also held that when there is no evidence to the contrary the test under s. 445.1.1.a is objective. When there is evidence to the contrary, the crown must prove wilful conduct. The test then becomes subjective as the accused must “know the act or omission will cause an event, and be reckless as to whether the event occurs or not.” The latter situation is when s. 429.1 of the code applies.

Judge found there was no contrary evidence in this case, and there was ample evidence that Gerling caused the suffering of the animals under his care, and he has neglected the care of these animals for a long time. As such Gerling could be convicted under the relevant Criminal Code sections.

R v Keefer, Vandyk & Visser, 2017 BCPC 63894-2C

The BC SPCA was alerted to an undercover investigation performed by Mercy for Animals (MFA). One of their employees posed as a worker at Chilliwack Cattle Sales and filmed his experience there. The video depicted numerous acts of violence towards animals, including beating, kicking, stomping and hitting cows.
After a lengthy investigation the BC SPCA recommended 20 charges to crown for Chilliwack Cattle Sales and its employees. The company and all employees have pled guilty.
Keefer, Vandyk and Visser pleaded guilty to section 24(1) of the Prevention of Cruelty to Animals Act and to section 34(a) of the Wildlife Act.

This case is precedent setting as all individuals charged received jail time for offences against farm animals.

R v Paulsen, 2015 BCPC 204679-1

Emma Paulsen owned a dog walking business for 7 years. On May 13th, 2014 Paulsen reported to the RCMP that six dogs had been stolen out of the back of her pickup truck while she was in the washroom at a dog park in Langley. An intensive search and investigation was conducted and resources were used from the RCMP, Animal Control and Pet Searchers Canada, including members of the public. It was not until May 19th, 2014 that Paulsen confessed to Pet Searchers Canada that the dogs had perished in the back of her truck while she was shopping and she had transported the bodies to Chilliwack and left them in a ditch. With this new information, the BC SPCA began an investigation into Paulsen and found that all 6 dogs had perished as a result of heat stroke, one of which belonged to Paulsen.

Although this case was deemed accidental, Paulsen pleaded guilty.

This case is significant as it is one of the few cases in which the accused is convicted of, and receives a strong sentence for, leaving an animal in a hot vehicle. It was also the charge under the (relatively) new section 9.1(1) which creates a positive duty on the part of an owner to protect an animal from a situation that is likely to cause an animal to be in distress (eg. leaving a dog in a car on a hot day).

Mitigating factors include: Paulsen did not intend to harm the dogs; Paulsen’s mental state at the time in question; Paulsen is a first-time offender.

Aggravating factors include: Paulsen’s behaviour was more than mere negligence; Paulsen’s six days of deception toward law enforcement, the media, the BCSPCA, and the owners of the deceased dogs; Paulsen did not apologize or express remorse and tried to cover up her wrongdoing.

R v Labonte, 2014 ABPC 153

Sentencing following a guilty plea. Accused was a 19-year-old employee of a dog daycare. He brutally beat a 5-month-old boxer named Apollo until he vomited blood. The dog had no lasting or permanent injuries. The event was caught on CCTV.

Given the severity of the offence and position of trust, accused sentenced to 60 days conditional sentence. An animal prohibition (except from the accused’s current cat) was decied but not included in these reasons.

R v Gerling, 2013 BCSC 2503

Decision following 14-day trial. Gerling operated a chihuahua kennel. The dogs under his care were poorly groomed, inadequately cared for, and required serious eye and dental treatment. BCSPCA attended the kennel multiple times, citing infractions and making orders to remedy issues. Events took place between March 200 and February 2011.

Accused claimed Charter breaches of s. 7 and s. 8 for over-seizure of the animals, but these arguments were not accepted.

Judge cited R v Clarke (2001 NLPC) and R v Hughes (2008 BCPC) to conclude that the Crown does not have to prove subjective foreseeability of unnecessary pain or suffering, but that the length of suffering and repeated BCSPCA orders meant that the accused was wilful and caused the actus reus.

Accused found guilty.