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 rights. The 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.