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 Prevention of Cruelty to Animals 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.