Her Majesty the Queen - v. -, 2011 SKPC 129

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 129 Date: October 4, 2011 Information: 24330540, 24330542 & 24330545 Location: Tisdale _____________________________________________________________________________ Between: Her Majesty the Queen - and - Alex W. Potoreyko Appearing: Ms. L. O ’Connor For the Crown Self-Represented For the Defendant DECISION B. MORGAN , J INTRODUCTION: [ 1 ] Mr. Potoreyko is charged, on three separate Informations, with the same offence of allowing his cattle to run unlawfully at large, contrary to s. 3 of The Stray Animals Act (the Act ).

The trial proceeded on Information 24330540, and with the consent of both the Crown and the defendant, the evidence was applied to the other two Informations as well. [ 2 ] The three Informations refer to three different dates: August 31, 2010 on 24330540, September 20, 2010 on 24330542, and

September 24, 2010 on 24330545. The issue is whether or not the defence of due diligence has been established by Mr. Potoreyko. CROWN EVIDENCE: August 31, 2010 - Information #24330540 [ 3 ] Ms. Anne Aspen is a neighbour of Mr. Potoreyko; both of them reside on adjacent farms, near Bjorkdale, Saskatchewan. [ 4 ] I accept Ms. Aspen’s evidence, which was uncontradicted, that on August 31, 2010 she was in her house, when suddenly five or six bulls came into her yard, from all directions, and a couple of them started fighting. Being afraid, she called the police, and a complaint ensued.

She said that either she or the police phoned Mr. Potoreyko to come and get the bulls. Ms. Aspen also stated that the cattle got into an organic alfalfa field, which her son Allan was farming for her. [ 5 ] Ms. Aspen provided a sketch, (P-1) which is a useful reference point. It shows that Mr. Potoreyko’s pasture is immediately south of the organic alfalfa field she was speaking of, and that there are trees along the north and west sides of Mr. Potoreyko’s pasture. [ 6 ] Cst. Aiden Pratchett testified that he went to see Ms. Aspen on September 1, 2010, after receiving a complaint of this occurrence.

He stated that on that date he saw a lot of cattle in an unfenced field which he was told by Ms. Aspen belonged to Mr. Potoreyko. [ 7 ] The officer stated he went in search of Mr. Potoreyko, and said that when he found him, Mr. Potoreyko said that he had been in the hospital that day, although he learned the cattle had escaped, and he stated he would fix the fence and have the cattle contained again. (Mr. Potoreyko took no issue respecting the voluntariness of any statements he made to Cst. Pratchett at any time relevant to these proceedings.) September 20, 2010 - Information #24330542 [ 8 ] Ms.

Aspen stated that this “could be” when she woke up to three big bulls fighting under her spruce tree. She referred to “a slew of them” in and around the bins, and said the bulls had to have come from the east, although this was a guess as she did not have a window on the east side of the house. She wasn’t sure if she called the police, or if she called Mr. Potoreyko to complain. [ 9 ] Cst. Pratchett stated that, due to this complaint, he went and found Mr. Potoreyko, and told him that there were cattle out of the yard.

Although the officer testified that he did see cattle out that day, he testified he couldn’t say where they were, although they were outside a fenced area. He stated that he saw a fence on the south side, “in a state of poor repair, with very widely separated fence posts”. September 24, 2010 - Information #24330545 [ 10 ] Ms. Aspen stated that “there must have been a 100 of them”, in referring to a number of cattle that went across a road adjoining her property, into a red clover field. This field was just north of her house, and kitty corner to the organic alfalfa field that Mr.

Potoreyko’s cows, according to her, had developed quite an affinity for. [ 11 ] Cst. Pratchett stated that he went in search of Mr. Potoreyko that day, to serve him a summons based on the September 20

incident, and saw cattle out on the road leading to Mr. Potoreyko’s yard. He also testified that he saw cattle squeezing under the fence, but he was not sure of the date that he saw this. I accept that he did at some point in his dealings with Mr. Potoreyko, which seem to have been quite frequent between August 31 and September 24, see Mr. Potoreyko’s cattle squeezing under a fence. However, I am equally satisfied he does not know what date he saw that. [ 12 ] Cst. Pratchett also spoke of events of October 4, 2010, but that evidence is irrelevant to the charges I am dealing with.

DEFENCE EVIDENCE : [ 13 ] None of the witnesses Mr. Potoreyko called gave any evidence respecting any of the dates in issue; in all, their evidence dealt with the general policies of Mr. Potoreyko, as well as the behaviour of cows, this latter evidence being somewhat questionable in value. [ 14 ] Mr. Frank Campeau testified that he did part-time work for Mr. Potoreyko, fixing fences, and dealing with cattle. He said the cattle are inside the fence, except when the trees break the fence, at which time they escape. I am satisfied these trees run along the north boundary of Mr.

Potoreyko’s pasture, the pasture that is just south of the organic alfalfa field. [ 15 ] Mr. Campeau stated that he assisted Mr. Potoreyko with building a new fence in 2001, a three strand fence of barbed wire, and that Mr. Campeau paced off “ten steps maybe” between posts, and then testified it was perhaps 10 to 14 feet between each post. Although I am not satisfied he is correct on the measurement between the posts, he did state “the fence was tight, everything was good” after it was completed.

He stated that there are a lot of trees that break the fence, and he testified that the cattle have not been a problem since the fence has been repaired. [ 16 ] Mr. Campeau went on to say that there were some places where there were six or seven wires used, and at some points the posts were much closer together, and supplemented his evidence by looking at various pictures provided to him by Mr. Potoreyko. These photos, numbered Exhibits D-1 to 13 inclusive, were referred to by all the defence witnesses. [ 17 ] In cross-examination, he agreed that he had seen Mr.

Potoreyko’s cows out in late August and September of 2010, and felt they were out because trees were knocking down the fence, and he also stated that one of the pictures indicated two calves going between the wire, which was sagging. In re-examination, he stated that when cattle go under wires, they stretch the wire. [ 18 ] Dwight Thorpe also testified for Mr. Potoreyko.

He was a credible witness, but most of his evidence dealt with the character and traits of cows, which keyed somewhat on the fact that cows, once they find a place to escape a pasture, like to go back and check the area again searching for a future escape route. This evidence was objected to, which was sustained, and I would only remark, by way of general comment, that evidence respecting the thought behaviours of cows is somewhat tenuous at best. As a general proposition, I would accept that most domesticated animals, if given a chance, would wander in search of food.

That is why fences are required for cattle in the first place. [ 19 ] Mr. Thorpe did assist in looking at the pictures and identifying the place where he believed the cows escaped, commenting that he helped fix that area. The pictures in Exhibit D-4 show a calf squeezing through a fence by Mr. Potoreyko’s hay bales, but it is of note that the fence the cattle are squeezing through leads from one of Mr. Potoreyko’s pastures to another. It simply demonstrates how some small cattle can get through a fence. [ 20 ] Thomas Hart also testified for Mr.

Potoreyko, and stated he had worked for him for a number of years on a seasonal basis. He testified that he assisted with building a fence with Mr. Potoreyko in the south pasture, stating that it was a “four wire I believe it was”, and that the posts were approximately 15 to 20 paces apart, revising the estimate to being “maybe five paces, 15 feet apart”. As with Mr. Campeau, I place no reliance on his estimate of the placement of the posts. He stated that, in 2001, when Mr. Potoreyko was unavailable, he was retained to look after Mr.

Potoreyko’s cattle for approximately one month, and that he had a few break out problems, but he’d go daily to check, and would fix the fence, following which the cattle would stay in.

[21] The final defence witness was Mr. Potoreyko himself, who testified that “at no point did I deliberately allow my cattle to runat large”. [22] He went through the photos he had taken, and with respect to the first charge, noted photographs 1 and 2 in particular. Hestated that, after Cst. Pratchett came to see him on September 1, because his cows were out, he found the break and repaired it; ExhibitD-1 is a picture he took just prior to midnight that date, showing a tree fallen across his fence.

He stated he fixed it immediately, and thatphotograph D-2, taken at 10:00 a.m. on September 2, shows that the repair was effected promptly and that a four wire fence nowspanned the area where the break out had occurred. Like Mr. Thorpe, Mr. Potoreyko testified that cattle like to break out of fences, andthat they learn how to do this. Photograph D-3 taken September 2, 2010, shows a herd of cattle by a fence, which Mr. Potoreyko statedwere the cattle waiting to find a way to get out. Although the cattle are all facing the fence, I obviously cannot interpret their thoughtpattern as he suggests. [23] Mr.

Potoreyko’s evidence generally was that, he was “checking fences daily” at this time, although last fall, it was “more liketwice a week”. He stated that 2010 was a very wet and muddy year, and that lots of trees fell over, causing lots of breaks on his fence. He stated “I tried my darnedest” to control the cows, and that he knew what was happening, and was doing everything he could to keepthe situation under control.

He continued to assert that he did not deliberately let the cows out, and that if there was a break, “I repairedthat repetitively”. [24] He testified that his fence posts are five paces apart, which he estimates to be approximately five metres, which I accept. Hesays most of the fence is four strands, although it is five strands in some areas, and on one fence on which he has had no issues, there arethree strands. ARGUMENT AND ANALYSIS: [25] Mr.

Potoreyko relies on three cases, and argues that he was exercising due diligence in both checking his fence twice a week,and repairing breaks every time he located one. [26] Ms. O’Connor distinguishes the cases referred to by Mr. Potoreyko, and argues that, if checking a fence twice a week waseffective in the autumn of 2010, why would Mr. Potoreyko be checking his fences daily now, as he testified at trial? She suggests thatchange of frequency is a standard that I can look at in deciding this case. [27] I start by noting that, but for Mr.

Potoreyko’s candour in admitting that the cattle were his, proof of his ownership of thosecattle would not have been established on all three Informations. Although Ms. Aspen was accurate and helpful as to what she saw, shewas clearly upset and agitated over what she clearly felt was an assault on her farmland, carried out over a one month period. She reallyhad no idea what happened on what date. [28] Cst. Pratchett’s evidence was helpful in that he was able to pinpoint the dates, but his note taking was not particularlyaccurate, and he cannot know whose cattle these were.

However, if I combine the evidence of Ms. Aspen and the officer, the datesbecome clear, and Mr. Potoreyko’s evidence satisfies me that these are his cattle. I do not accept Cst. Pratchett’s evidence as to the stateof the fence he saw, as details of his observation were lacking. [29] The three cases Mr. Potoreyko relies on are Goy v. Zimmerman, (SKPC), Giesbrecht v. Kraus, 2003SKPC 79 , and Borstmayer v. Mackrell, 2004 SKPC 84 . Each of these cases deal with civil suits arising out of theescape of domestic animals: cattle in Goy v. Zimmerman, and horses in the other two cases.

As such, although each case refers to theAct, the cases were dealing with the question of civil liability for damage caused by animals “running at large”. As civil liability is notthe issue here, the cases are not particularly helpful in dealing with the offence charged here, although the cases do state some generalpropositions that can be applied. [30]

Section 3 of The Stray Animals Act states that, subject to the Act and any bylaw, “no owner shall at any time allow any of his

animals to run at large within the province”. The phrase “running at large” is defined in

section 2(

p) of the Act and means “not being onthe premises of its owner and not under the immediate, continuous and effective control of its owner”. Mr. Potoreyko appears tointerpret the word “allow” as importing some kind of positive act on a defendant, but that is not the case; in a prosecution of this nature,one “allows” the animals to run at large if he does not take steps to prevent that from happening. [31]

Section 3 of the Act is regulatory in nature and is what is called a strict liability offence. Mr. Potoreyko can therefore advancethe defence of due diligence. Thus, if the Crown has proven that the animals were running at large, it is open to Mr. Potoreyko to escapeliability if he can establish on a balance of probabilities that he took all reasonable steps to prevent them from doing so. (See R. v. SaultSte. Marie (City), (SCC), [1978] 2 S.C.R. 1299, R. v.

Sadler, 2010 SKQB 424 (CanLII @ para. 21).) [32] I have no doubt that the Crown has established the essential elements of the offence in each of the three Informations. Thequestion to be answered is whether or not Mr. Potoreyko took all reasonable steps to prevent his animals from running at large. [33] A useful starting point is to look at the provisions of the Act respecting liability for an animal at large, set out in sections 27through 29 of the Act. Although these sections speak primarily to civil liability, the provisions of

section 29 as to a “lawful fence”provides guidance as to what constitutes a reasonable step to restrain the cattle. Turning to

section 18 of The Stray Animals Regulations,1999, one notes that a “lawful fence” as defined in s. 2(

g) of the Act, is: (

a) for cattle: (

i) three or more barbed or high tensile wire strands secured to substantial posts that are not more than 20 metres apart, the wire beingfastened to droppers not more than five metres apart, and the strands of wire being 35 to 40 centimetres apart, with the lowest strandbeing 35 to 40 centimetres from the ground; or (ii) three or more barbed or high tensile wire strands secured to substantial posts that are not more than 7.5 metres apart, the strands ofwire being 30 to 35 centimetres apart, with the lowest strand being not more than 30 to 35 centimetres from the ground; [34] Although I cannot say with certainty that the fences surrounding Mr.

Potoreyko’s land meet the above-noted definition, I cansay with certainty that he has a good and substantial fence on the perimeter of his land; the photos he tendered bear this out. (I note,parenthetically, that some of the photos show the fence in the summer of 2011, but the photos are all helpful in assessing this case.) Aswell, the evidence of each of Mr. Campeau, Mr. Thorpe, Mr. Hart, and Mr.

Potoreyko satisfies me that the fence was well-built, well-maintained, and promptly fixed when there was a break, breaks often occurring when the wind knocked a tree down across the fence.The incident referred to earlier, with respect to D-1 and D-2, supports this. [35] Further, I accept Mr. Potoreyko’s uncontradicted evidence that three sides of his property contain fences that run through ornear wooded areas. He “surmised” that the wet weather in 2010 softened the ground, leading to more occasions on which a wind wouldknock a tree down across the fence.

Although I cannot be sure that was the case, I am sure that Mr. Potoreyko felt that to be so, and I amsatisfied that his response to this problem was to patrol his fence line at least twice a week at the time frame in issue. [36] In essence, Mr. Potoreyko’s defence is that he at no time “allowed”, that is, did anything in a positive way, to let the cattleroam free, but that is not the question.

He couples this statement by arguing that, due to a combination of factors, one of them being thepropensity of cattle to want to break the fence to dine in an alfalfa field, another being the weather, the wandering of the cattle wasinevitable. [37] The test, however, is whether or not Mr. Potoreyko has satisfied me, on a balance of probabilities, that he took all reasonablesteps to avoid the doing of the prohibited act. I am satisfied that he has met that test. He is not required to guarantee that his cattle willnot run at large.

I find that he took reasonable steps, in both patrolling his fence line, and in repairing the fence line when required, toprevent his cattle from running at large. [38] I therefore dismiss all three Informations.

B. Morgan, J