R v Freymond, 2006 OJ No 608 ONCJ

Charter application under s. 8.

The accused argues that the OSPCA, Renfrew County branch, conducted a warrantless search of their kennel. The inspector observed that there was a large number of dogs in a gravel pit. The dogs in question were attached to a series of chains. The dogs were placed in such a way that they would not have contact with one another presumably to avoid them fighting with one another. There were a total of forty-five husky dogs at the location and that apart from the dogs who were under the flatbed, there was no shade for the dogs in question. The water bowls for the dogs were empty and the location was fowl smelling due to the heat and the large pile of chicken feathers and chicken parts as well as dog feces. The warrantless search was illegal since the inspector hadn’t seen an animal in immediate distress before entering the locked property.

Charter application to exclude evidence because of search and seizure issue. Charged with criminal neglect for inadequate food and care of dogs on the property. The OPSCA had received a complaint of neglect. Dogs being kept in a gravel pit. The gate to the gravel pit was shut and locked when the agent arrived. The Agent walked down the road and was able to observe the dogs

Held: Application allowed, breach found and evidence excluded. The OPSCA Act only authorized a warrantless search observed an animal in immediate distress. The Agent did not observe the dogs until she trespassed on the property. Agent could have attempted to view the dogs from an adjoining property, she could have asked the landowner for permission to enter or she could have obtained a search warrant. Inclusion of the evidence would adversely affect the administration of justice.

Evidence declared inadmissible.