The accused works as an outfitter and guide in the Yukon Territory. His assets are held by Kusawa Outfitters Limited, a limited company. He is the company’s sole shareholder and officer. A number of horses are required for the guiding business. After the Yukon hunting season ended in November 1990, the horses – about a dozen in number – were transported to the Teepee Creek area of Alberta for the winter. Farmers in the horses’ neighbourhood became concerned about their plight in March 1991. Mr. Tom Rycroft, in particular, was concerned enough to contact the R.C.M.P. Dr. Peter Moisan, a veterinarian, and Morris Airey, an Alberta S.P.C.A. special constable, examined the herd and pasture on March 19th. They discovered 21 live horses and three dead horses. Dr. Moisan performed an autopsy on two of the three bodies, which were skeletal remains, and the third, which had been dead for two or three days. He concluded that it died of emaciation, that is, from a lack of food. Dr. Moisan also looked over the pasture. The field had a significant amount of ice on it in addition to a significant amount of snow. As a result, the majority of the hay was inaccessible to the foraging horses. Some grass poked its way through the ice, but it was far from enough to keep the herd from starving.
The defendant raises two defences. The first is that the information claims he is the owner of the horses. In fact, the evidence indicates that the legal owner is the corporate entity Kusawa Outfitters Limited. As a result, it is argued, that the charge should be dropped. In support of that claim, the defence has cited the Supreme Court of Canada decision in R. y. Rosen (1985), 44 C.R.(3d) 232. In that case, the accused was accused of being a trustee of certain funds who converted them to use not authorized by the trust. The defendant’s second argument is a lack of the required mens rea. There is no doubt that the accused failed to provide adequate food for his horses. However, in order to invoke Criminal Code sanctions, the Crown must go further and prove that the accused’s behaviour was willful.
Mr. Heynan’s actions are without a doubt deplorable and may constitute an offence under other laws. The evidence, however, does not support the necessary ingredient of wilfulness, and the Criminal Code charge against the accused was dismissed.