R v Kenny, 2019 ONCJ 728

The accused was charged with 16 counts under the Ontario Society for the Prevention of Cruelty to Animals Act under S18.1(1) after an OSPCA investigation from September 2014  through January 2015. The investigation revealed the following issues:

• A Long-Horned Bovine in distress: It was tethered to a pick-up truck in the middle of a field, left with filthy water and no shelter;
• 6 ducks were confined in an area covered in feces that was several inches deep. They were not being checked on, food was not adequately provided and they did not have enough room to exercise. They were “in deplorable conditions and were not being given medical attention” (para. 90);
• 20 chickens were left in distress, with food and water being neglected. There was little food and the water was ‘filthy’. They had frostbite on their combs and feet, with toes missing and in one case an entire foot was missing. Most chickens had signs of advanced mite infestations on their legs. The judge noted that “the photographs of these chickens were difficult to look at. The condition of their feet was simply abominable’ (para. 91);
• The 3 dogs were in the best condition of all the animals, but were still lacking adequate shelter and left with water that had frozen over.

The accused was served with numerous notices and compliance orders which were largely ignored. The charges laid related causing the animals to be in distress, failure to provide protection from elements, failure to comply with an order under s13(5).

The proceedings lasted for over a year, during which the self-represented accused brought forward numerous motions that included alleged trespassing by the OSPCA inspectors, Charter motions relating to right to be tried within a reasonable time, unreasonable search and seizure, and ‘peaceful enjoyment of property’ under section 7 and an application for a Stay of Proceedings due to his medical condition.

The accused  did not present any evidence in his defence, only the number of motions before the court to the point of ‘interfering with the progress towards resolution’ (para. 97) and he was advised that he could not bring anymore motions without permission of the Court. One such motion was brought under  s14(1.4) which states that the owner may apply to the justice of the peace to order the return of the animal if there are no longer reasonable and probable grounds to believe the animal will be harmed.

The judge found that the animals were removed under s14(1) and that an order under 14(1.1) had not been granted, therefore the Court could not order the return of the animals under 14(1.4). Additionally, all other motions were dismissed as it was determined that the accused was the reason for most of the delays in trial, there was no illegal search or seizure as the animals were in visible distress, and section 7 of the Charter does not make any reference to property rights. The Stay of Proceedings application was also dismissed because the court provided accommodations for the accused’s medical condition and that he had failed to meet the burden of proof that the trial process posed a risk of serious impairment to his health nor that he was unable to fully participate in his defence.

The trial judge determined that the sixteen counts against Mr. Kenny were strict liability offences, where the burden of proof shifted to the accused to show that all reasonable care was taken as a defence of due diligence on a balance of probabilities. No evidence was  provided that the accused satisfied any due diligence defence. In fact, the evidence clearly illustrated that he was defiant and took little to no action towards compliance when ordered to do so, leaving his animals on his property in unacceptable conditions.