Mason c R, 2021 QCCS 1155

The accused appealed a judgment made on February 20, 2019 by the Municipal Court of Montreal where he was found guilty on two counts of willfully and without lawful excuse, killing, maiming, wounding, poisoning or injuring an animal and on one count of willfully causing unnecessary pain, suffering or injury to an animal under the Criminal Code. The accused lived with his girlfriend who had already had one dog when they purchased another one, a Yorkshire terrier named Sombrero.

The relationship was characterized as rocky with several breakups and the accused would move out of the apartment. The first incident involved second degree burns over 75% of the dog’s body. The accused claimed he had boiled the kettle for hot chocolate and tipped over a glass of boiling water that fell on the dog. After the dog returned from the vet, the accused became jealous and was angry that his girlfriend was always with the two dogs. The second incident occurred while the accused’s girlfriend was out, and when she returned found Sombrero acting strangely and by the time they arrived at the vet was in a comatose state. The accused stated that Sombrero had had a seizure. The treating veterinarian diagnosed head trauma with the possibility of strangulation based on bruising around the neck, concluded that the dog was suffering. Sombrero was euthanized.

At trial, an expert in animal pathology testified that the repeated trauma found on Sombrero’s body were consistent with physical abuse, and could not have been self-inflicted or accidental. The trial judge concluded that based on the evidence that the accused was alone with the dog for both incidents and that no one else could have inflicted the trauma, therefore the accused was responsible.

The grounds for appeal were that the trial judge erred in law and in fact by failing to consider all the evidence or other reasonable inferences such as that Sombrero’s abuse was caused by a previous owner, and was not impartial during the trial. The Court found that the trial judge had not made any errors in law or fact, and that the judge’s disposition during the trial did not amount to bias but to impatience due to constant interruptions from defence counsel and had no contextual impact on the trial. The appeal was dismissed.

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 Reckman, [2020] OJ No. 5451 – Sentencing

Many animals were found on the property of Hendrik and Joshua Reckman when members of the OSPCA and OPP executed a search warrant, however the 290 rabbits and 279 rats found were the subject of these proceedings (the remainder of the animals were outside the residence and under the care of J). The rabbits and rats were found in unsanitary and overcrowded conditions which was described as “deplorable and absolutely horrifying”. Both men were charged with wilful neglect and causing unnecessary pain and suffering by failing to provide suitable and adequate care. The details of the judgment can be found here.

J. Reckman was only found guilty of the charges relating to the rabbits because they were outside the residence and in plain view of his tent. Mental health issues and a history of abuse from his father were taken into account, therefore J. Reckman was only sentenced to a 12 month conditional sentence.

H. Reckman was found guilty on both charges. In addition, because he had been previously prohibited in April 2014 from owning or having custody or control of or residing in the same premises as an animal or bird for the rest of his life, he was further charged with disobeying that order as well as gun-related charges for which he was also found guilty on all counts.

H. Reckman was sentenced for 24 months plus a day incarceration, with no probation. For the animal cruelty charges, he was sentenced for one year for the charges involving the rats and one year for the charges involving the rabbits to be served concurrently. The remainder of his sentence was for disobeying a previous prohibition order regarding possession or control of animals and gun-related charges.

 

R v Tieu, 2020 ONSC 7758 – Appeal

The accused was found guilty of animal cruelty under the Criminal Code for causing unnecessary suffering and abandoning an animal in distress and with permitting distress to an animal under the former Ontario Society for the Prevention of Cruelty to Animals Act (OSPCA Actafter he had deposited a live puppy into a garbage bin near the entrance of a public mall after he had placed it in several tied shopping bags in 2017. A search of two properties belonging to the accused found 23 small breed puppies being confined to cages meant for rabbits, without adequate water or proper sanitation. The details of the original case can be found here.

He appealed his conviction beyond the limitation period and submitted an application to extend time, claiming that his defective legal assistance caused a miscarriage of justice by failing to advise him that a possible theory of defence could have been found in negligence as well as how strong of a case the Crown had against him.

The accused argued that had he known about the strength of the Crown’s case and been made aware of the possibility of a negligence defence, he would have submitted a guilty plea. The appeal judge found that a plea of guilt it would have given the same result as the finding of guilt handed down by the trial judge, therefore there was no prejudice to the accused (para. 117). The judge also agreed with the Crown’s submission that the accused’s use of negligence as a factor in his defence “would not have changed his evidence or rendered him less culpable” (para. 118), that the fact remained that the accused did nothing to try to save the puppy, such as call his veterinarian or take the dog to a clinic, before disposing of it  (para 119).

The appeal judge declined to grant the extension, denied the accused’s claims of ineffectual legal assistance and dismissed the appeal.

R v Gouin, [2021] OJ No 3157 – Sentencing

Background: The accused agreed to care for Ms. Johnson-Lumapas’ small dog after she learned she could not keep it in her new apartment. The dog had a history of being wary of men after being abused, and showed signs of stress acclimating to her new environment.

When Ms. Johnson-Lumapas returned to the accused’s apartment after going out, she saw her dog lying in the corner with blood coming out of its eyes. The dog was “barely breathing” and her tongue was hanging out of her mouth. The accused claimed his cats had scratched the dog’s eyes and attempted to dissuade Ms. Johnson-Lumapas from seeking medical attention for the dog.

The accused was charged with injuring an animal contrary to s. 445 of the Criminal Code and wilfully causing, or permitted to be caused, unnecessary suffering to an animal, contrary to s. 445.1 of the Criminal Code, and was found guilty in February 2020. Details of the judgment can be found here.

Sentencing: The Crown sought a jail sentence in the 9-12 month range with two years probation, a prohibition order on owning or residing with animals plus $3,466 in restitution to account for cost of new dog. Defence counsel argued for an intermittent sentence of three months or less or, in the alternative, a conditional sentence.

The defence counsel raised the accused’s difficult childhood with a father who was verbally and emotionally abusive, and addicted to alcohol as mitigating factors; he also spent time in foster care as a teenager, had a history of depression and suffered from epilepsy. However, the judge noted that the accused showed no remorse nor empathy for the dog dying, nor was any mention made in the presentence report of his current mental health status apart from that he had made arrangements to seek counselling. No alcohol or illegal drugs were involved in incident, leaving the accused’s violent conduct toward the dog without explanation. In paragraph 43 of the decision, the judge stated that the accused’s background calls for compassion and limited criminal justice system history calls for restraint, “however, his personal issues do not limit his personal responsibility for the violent crime he committed”.

The accused was only sentenced on the first count under s 445(1)(a). The Crown at the outset of the trial had asked the court to strike out the terms “kills, maims, wounds or poisons” and leave “injures”, and the judge found that defence counsel had successfully argued that the second count under s 445.1(1)(a) was not distinguishable given the wording on the first (para. 81).

After determining that restitution was not appropriate and that neither a conditional nor intermittent sentence were suitable under the circumstances, the accused was sentenced with 90 days incarceration followed by two years of probation which will include counselling as directed by probation officer, a five year animal prohibition order and a weapons prohibition.

YCJA – 2113, 2021 QCCQ 6023

On May 13 and 14, 2020, a wildlife protection officer reported that while investigating local wildlife regulations, he was assigned to supervise a cottage where the accused was located. He observed the accused shoving and kicking a small puppy that appeared to only be a few weeks old, and heard the puppy cry out on these occasions. He also saw the accused throw the puppy down the cottage porch stairs and then into a cold river of 5-12 degrees C from arm’s length while he and his friend laughed. The accused was charged with wilful injury and causing unnecessary pain and suffering of the puppy under the Criminal Code.

The accused denied this and claimed that he took good care of his dog, and that the puppy only cried when he was tied up at the side of the cottage for disobeying. His friend testified in the accused’s defence that he had not witnessed any mistreatment of the dog.

The tribunal was unconvinced by this testimony, referring to it as “vague and unconvincing” (para. 33), however were forced to acquit on the first charge after the prosecution failed to prove wilful injury of the puppy beyond a reasonable doubt. They did find the accused guilty of the second charge of causing unnecessary pain and suffering.

The PDF version of the judgment is in French; the CanLii link below is an English translation.

R v LaPlante, 2021 SKPC 52

On January 9, 2019, Animal Protection Officers seized 106 cats, two dogs and one turtle after executing a search warrant of a 400 square foot house. Approximately 20 additional cats could not be removed because they were unable to be caught.

The animals were found to be under the care of the accused, who was charged with causing or permitting an animal to be or continue to be in distress under s 4(2) of The Animal Protection Act, 2018, SS 2018, c A-21.2. The accused was originally charged with animal cruelty and neglect under the Criminal Code but those charges were stayed at trial.

The accused denied the Crown’s charge that the animals were caused distress due to their unsuitable living conditions by claiming although her house was dirty the animals were happy and with her, they had an opportunity to be adopted through her rescue organization, Alley Cats. She claimed the conditions in which they were kept after the seizure was what exposed them to disease and resulted in 105 cats having to be euthanized.

Based on the expert testimony of the veterinarian who attended at the search, along with other compelling evidence presented by the Crown, the trial judge found the accused guilty. The judge stated that although it was clear that she was passionate about animals, “having a big heart is not a defence under the Act” (para. 20).

Note: This is not the first time that the accused has been charged under the provincial Animal Protection Act. A history of similar behaviour dating back to 2011 can be found here.

R v Martel, [2021] OJ No 6017

In April 2020, witnesses observed the accused and the dog owner with dog on leash walking together on a public street. The accused first pushed the dog owner and as the dog owner began to walk away, the accused then punched the dog in the head. He began to then assault both the dog and its owner. Two witnesses heard the accused ask the dog owner where his $5 was.

Police attended the scene, where the dog owner declined the offer of medical assistance and to press charges. Although there were no obvious signs of injury to the dog, one of the attending officers determined that it was visibly scared by evidence of its ears flat against its head, the tail tucked between its legs, and it was shaking

The trial judge found the witness evidence to be reliable in that accused intended to kick the dog becauss he had done so twice, as well as punched the dog in the head in a gesture that was “apparently completely gratuitous or out of spite for the dog owner” (para. 11). The judge then concluded that accused did wilfully cause the dog pain, that the kicks were unnecessary, lacked a legitimate purpose and legal excuse for causing pain. The accused was found guilty.

R v Roberts, 2017 BCSC 2495

This was a summary conviction appeal by Mr. Roberts who was convicted of wilfully causing suffering to animals contrary to s. 445.1(1)(a) of the Criminal Code, and of wilfully neglecting animals contrary to s. 446(1)(b) regarding a herd of horses that the accused had kept in Armstrong, British Columbia.

In December 2013, a Special Constable from the BC SCPA attended Roberts’ property and found many horses that had no access to food and appeared underweight and neglected. At this time  Roberts was issued an order with directions to improve the living condition of his horses. In December 2014, the BC SPCA executed a warrant to enter Roberts’ property along with a veterinarian who determined the animals were in distress due to inadequate food, water, care and shelter.

The first ground of appeal concerned photographic and eye-witness evidence obtained during the execution of the BC SPCA warrant. The Court considered the Grant test to determine the admissibility of the evidence and held that the Charter-infringing state conduct was minor with minimal impact on the protected interests of Roberts and the admission of the evidence would not bring the administration of justice into disrepute, therefore dismissing the first ground of the appeal.

The second ground of appeal concerned the reliance of the trial judge on evidence obtained in December 2013. The Court held that this evidence was important in proving Roberts had the necessary mens rea of the offence, as the horses’ condition did not improve between 2013 and 2014, therefore the second ground of the complaint was dismissed.

The third and final ground of appeal concerned the issue of credibility which was also dismissed, as the Court found the trial judge properly considered whether Roberts’ evidence raised reasonable doubt and there was no evidence of a palpable and overriding error in his credibility analysis.

The appeal was dismissed.

R v Robinson, 2018 BCSC 1852

Ms. Robinson was charged pursuant to sections 445.1(1)(a) and 446(1)(b) of the Criminal Code regarding her 20 horses and pig.

Following two complaints and several interactions with Robinson, including orders to improve the living conditions of her animals, the Society for the Prevention of Cruelty to Animals (SPCA) seized 13 of the 20 horses from Robinson’s 20 acre-property. Prior to the seizure of her horses, Robinson’s property was visited several times over the span of 3 months by two veterinarians and an investigator by the SPCA who assessed the condition of the horses and pig in her care as well the property. The investigator and veterinarians relied on the “Henneke Scale”, which is used to assess a horse’s body condition between 1 (being extreme emaciated) and 9 (being extremely fat). Both veterinarians identified 3 horses in particular that had low body conditions scores between 1 and 3 (5 being the ideal body condition score for a horse) and attributed their low body conditions to lack of adequate food, water and care.

Robinson testified that she provided adequate water and feed to her horses and that an unexpected cold snap caught her off guard, which lead to her horse’s weight loss.

The Court found that the Crown was only successful in proving beyond a reasonable doubt that the three most concerning horses were experiencing pain and suffering associated with their poor body conditions, that the pain and suffering was unnecessary and caused by Robinson, and that she had failed or neglected to provide suitable and adequate food, water and care for the three most concerning horses. However, the Crown failed to prove that Robinson acted wilfully. There was no suggestion that Robinson intended to inflict harm to her animals as she cared deeply for them. Regarding the possibility of recklessness, the Court found that while Robinson’s actions may have been careless, her conduct did not reach the required level of recklessness. Because the Court found it convincing that two neighbours were not alarmed at the condition of the animals, it was not satisfied that Robinson’s actions were a marked departure from the norm. For these reasons, the Court found that the Crown failed to prove beyond a reasonable doubt that Robinson acted wilfully.

As a result, the Court found Robinson not guilty on both counts.