R. v. Battaglio, 2020 BCPC 45

Citation: R. v. Battaglio 2020 BCPC 45 Date: 20200313 File No: 16020-1 Registry: Powell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. CAROL BATTAGLIO REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B. DYER Counsel for the Crown: R. Opel Counsel for the Defendant: J. Saulnier Place of Hearing: Powell River , B.C. Dates of Hearing: July 11, 2017; November 7, 8, 9, 2018; January 28, July 22, 23, September 6, December 9, 2019; January 20, 2020 Date of Judgment: March 13, 2020 [ 1 ] The accused Carol Battaglio (“C.B.”) is charged with two counts under s. 24(1) of the Prevention of Cruelty to Animals Act

RSBC 1996 c 372 (the “Act”) of causing or permitting some alpacas she owned to be or continue to be in distress between October 1,2015 to November 29, 2015 and similarily, causing or permitting a chicken, in fact a rooster, to be or continue to be in distress fromNovember 19 to 21, 2015. She has pleaded not guilty to each charge. [2] Crown’s case as described in Ms. Opel’s opening was that only two alpacas of C.B.’s herd (Mo and Oye Vey a.k.a.

Samantha)and one rooster in her flock of chickens (unnamed) and C.B.’s care of same were the subject matter of the proceedings before me. [3] These charges are both strict liability offences. Thus in order to prove same, Crown must only prove the criminal act or actusreus of the offence however beyond a reasonable doubt.

C.B. will avoid liability under the Act if she establishes that she took allreasonable care of these three animals in all circumstances proving same and the defence of due diligence on the balance or probabilities. [4] The purpose or intent of the Act is as per its name – to prevent cruelty to animals. (See R. v. Van Dongen, 2004 BCPC 479, 2004 BCPC 0479 para. 34). In R. v. Chrysler, 2013 BCPC 241 , 2013 BCPC 0241 Gillespie PCJ referring to BCSPCAv.

Baker, [2007] BCSC 1717, a decision of Preston J. said this in paragraph 12 of her reasons: [12] In my view, Preston J. clearly accepted that a person responsible included a much broader group of people than just the owner ofthe animal. The rationale for this legislation and broad

interpretation reflects the concern that animals are dependent creatures and relyon human caregivers to provide them with the necessaries of life, including food, water and adequate shelter. The PCA is broadlyworded to reflect the vulnerability of animals and the need for those entrusted with their stewardship to be accountable for their well-being. [5] Doulis PCJ in R. v. Scott, 2017 BCPC 220 dealt with the same point at paragraph 225 of her decision as follows: [225] Custody and control is not defined in the PCA Act. Upon engaging the principles of statutory

interpretation I agree with JudgeClare in R. v. Roos & Stevens (22 October 1999), Port Coquitlam 57274-01 (B.C. Prov. Ct.), that the intent of the Act is to relieve distressin animals that are really unable to look after, to fend for, or to feed themselves. (Also see: Dongen v. The Society for the Prevention ofCruelty to Animals, 2005 BCSC 548 ) [6] People who own or who are responsible for animals thus have a legal duty to properly care for them which can include takingpositive steps to remedy a negligent situation in which they are kept. (See R. v. Chrysler, para. 61).

In this case the charges arose byreason of allegations that C.B.’s care of the animals in 2015 on the relevant dates while they were kept at her small I would say hobbyfarm in Powell River, B.C. was substandard. [7] The relevant sections of the Act are as follows: Offences 24

(1) A person who contravenes

section 9.1, 9.2, 9.3, 23, 23.1, 23.2 or 23.3 commits an offence. (2) [Repealed 2011-7-6.]

(3) If a person is convicted of an offence under subsection (1), a justice may, in addition to any other penalty that may be imposed for theoffence, prohibit the person from owning or having custody or control of an animal for a period of time specified by the justice.

(4) A justice may make an order under subsection (3) on any terms the justice considers appropriate.

(5) A person who fails to comply with an order made under subsection (3) commits an offence.

(6) A proceeding for an offence under this Act may not be commenced in any court more than 3 years after the facts on which theproceeding is based first come to the knowledge of an authorized agent who is a special provincial constable under the Police Act. Harm to animals by persons 23.2

(1) A person must not cause an animal to be in distress.

(2) A person who kills an animal (

a) must comply with prescribed requirements, and (

b) must not, in killing the animal, cause the animal to be in distress or do anything that is prohibited by the regulations. “person responsible”, in relation to an animal, include a person who (

a) owns an animal, (

b) has custody or control of an animal, or (

c) is an operator in relation to an animal; There is no dispute in this case that C.B. at all material times owned the three animals in question and therefore she was a “personresponsible” under the Act at all material times.

Part 2.1 – Standards of Care Duties of persons responsible for animals

9.1

(1) A person responsible for an animal must care for the animal, including protecting the animal from circumstances that are likely to cause the animal to be in distress.

(2) A person responsible for an animal must not cause or permit the animal to be, or to continue to be, in distress.

(2) For the purposes of this Act , an animal is in distress if it is (

a) deprived of adequate food, water, shelter, ventilation, light, space, exercise, care or veterinary treatment, (a.1) kept in condition that are unsanitary, (a.2) not protected from excessive heat of cold, (

b) injured, sick, in pain or suffering, or (

c) abused or neglected. [ 8 ] Gulbransen PCJ in R. v. Dongen referred to a definition of the word “distress” in the English language (it is not defined in the Act ) found in the Merriam-Webster’s Collegiate Dictionary (10 th edn.) as follows: “a pain or suffering affecting the body” or “a painful situation” or “a state of danger or desperate need”.

To this definition I will add the definition found in The Oxford Dictionary and Thesaurus (1997 edn) that distress means “suffering caused by pain, grief, anxiety etc.” [ 9 ] As the person responsible for the animals in issue, the legal duties described in s.9.1 of the Act were duties that C.B. took on at the outset when she acquired the three animals. [ 10 ] I intend to outline the legal issues in this case and then to summarize the evidence given by the various witnesses both called by the Crown and as well the testimony given by C.B. in somewhat of a chronological order, then make findings of credibility and finally reach my conclusion as to whether or not Crown has proven its case against C.B. beyond a reasonable doubt and whether or not C.B. has established on the balance of probabilities that she used due diligence and acted reasonably in her care of same at the material times. [ 11 ] A finding of “due diligence” is a finding of fact and in order for C.B. to successfully defend these two charges, she need only show on the balance of probabilities that she took all reasonable steps which would have been expected of a reasonable person in the circumstances to comply with the legal duty she took on an acquisition of the three animals. ( See R. v.

Adair , 2000 BCSC 861 at paras 3 , 5 and 6). Hood J. in Adair also held that the reasonableness of the accused Mr. Adair (Respondent on appeal) must relate to positive acts on his

part in attempting to comply with a Notice he had received – arguably imposing a form of legal obligation on him. (See para. 10). THE ISSUES [ 12 ]

(1) Were the two alpacas in distress during the offence period namely October 1, 2015 – November 29, 2015?

(2) Was the rooster in distress during the offence period namely November 19 -- 21, 2015?

(3) If so – did C.B. cause any of the three animals then to be in distress?

(4) If so – did C.B. permit them either to be or continue to be in distress during the offence periods?

(5) If any of the three animals were in distress, if C.B. caused or permitted them to be or continue to be in distress, did she exercise due diligence in alleviating or attempting to alleviate their distress? [ 13 ] I intend to deal with each animal in turn at the conclusion of my reasons.

SUMMARY OF EVIDENCE [ 14 ] C.B. age 74 on the last day of the trial in July 2019 after working for some years as a junior high school teacher and librarian returned to university and obtained a PhD in counselling. She is a mother of three sons, one who lived with her with a medical challenge making life in a busy city not good for him in the year 2010. [ 15 ] Hence, she moved to Powell River in 2010 and for six months had a part time job there as an addictions counsellor which ended after six months.

This move was because she felt her son would do better living in a smaller community and because she had a job offer. She earlier purchased a home in Powell River in 2008 and lived in it with her above son. [ 16 ] She didn’t quite remember the date she purchased her approximately seven acre farm located some three blocks from her home, but felt it was likely in 2011. It was called Cranberry Farm and she at no time resided there. At the time she purchased this farm, she had a permanent job in Powell River which ended.

After some time off, she returned to a part time job in the Surrey School system which she said had started in 2008. After the farm was purchased, and after she lost her job in Powell River and in order to work in Surrey, she travelled from Powell River to Surrey each week leaving at 6:00 p.m. on the Saltery Bay ferry on Monday night and returning to her home in Powell River at or about 6:00 p.m. on Thursday. She worked all day Tuesday and Wednesday and Thursday morning staying overnight somewhere in North Vancouver. This work regime continued at all material times in 2015.

She testified that she was home every weekend save for November 11, 2015 when she recalled she went to visit another son and one weekend earlier I believe in June. [ 17 ] She did all her farming chores on Monday before she left Powell River and as well on her return on Thursday evening. She

testified that when she was not on her farm to the best of her knowledge, she always had a caretaker present at the farm, someone responsible to look after it and otherwise her normal routine was to attend the farm daily. [ 18 ] The farm when she purchased it was only logged raw land with no road into it. There were a number of stumps on the property. She hired a bulldozer to come in and clear certain areas with a view to eventually turning rough raw land into a working farm. Her initial plan was to have a therapy farm for seniors and people with disabilities like her son.

She described the farm as a work in progress not only immediately after the purchase but as well even in 2019. [ 19 ] C.B. had some earlier background in farming having spent a lot of time – whole summers as a young person helping out including with the cattle on her grandfather’s dairy farm in Abbotsford. She took master gardener course at Van Dusen Garden in about 2009. She was interested in conservation, agriculture and soil conservation.

Other than the work she did as a young woman with her grandfather’s dairy cattle (which work she did not really explain in her evidence) she had no formal training and had taken no courses with respect to care of animals of any size when in or about 2011 she commenced acquiring animals – initially two little goats – for Cranberry Farm. [ 20 ] She did testify that before 2011 and her acquiring any alpacas, she had visited four alpaca farms in Duncan, Oliver, Langley and on Gabriola Island and had spoken with their owners. In addition she learned about alpacas by reading books, magazines and going online.

It was not clear to me when she did this or what she learned. She said she also contacted one Ms. Fell for advice I understood after she acquired the three alpacas from her in 2013 or 2014. [ 21 ] In time, her goat herd grew to number fifteen animals. Their care has never been the subject of any SPCA investigation. [ 22 ] Over time she acquired one llama (“Prince”) and various alpacas commencing with two one year old males from a lady on a farm north of Whistler in 2011 that someone didn’t want.

Later in 2012 she obtained two female alpacas from a person on Gambier Island and another male llama also from the same lady who sold her the two male alpacas. She lost three alpacas in one night when a cougar attacked them. Still later she thought in 2013 or 2014 she acquired three female alpacas from one Rosemary Fell (referred to locally in Powell River as the “llama lady”). These three animals were rescue animals in the sense that Ms. Fell had obtained them or knew of them as a local lady who had leased a farm had the lease cancelled, had to move and was too old to look after them. Ms.

Fell asked C.B. to take them in essence to rehouse them and C.B. agreed. C.B. named them Mo, Celine and Dion. Mo was brown. Celine and Dion who were white were bigger and stronger animals – quite strong – (as compared to Mo who C.B. said was sort of a runt) and were “buddies” and C.B. felt probably sisters. C.B. testified that Mo was probably at a disadvantage competing with the two buddies for food in essence due to their size and bond.

C.B. testified that Mo was the odd man out right from the beginning as she was smaller and not as aggressive as the two white alpacas. [ 23 ] C.B. said she had Mo for approximately two years before giving her to Eleanor Miller to foster in October 2015. [ 24 ] Mo was pregnant when C.B. first took her on and gave birth to a male cria, Rico, a few months later. [ 25 ] C.B. said she had no concerns about Mo’s weight when she first acquired her. As well, she did not take an opportunity before taking possession of these animals to inspect them herself or have a vet inspect them on her behalf.

Rosemary Fell did not tell her about Mo’s teeth for example in a telephone call prior to actually delivering Mo to her. [ 26 ] About six months after acquiring Mo through Rosemary Fell, she offered C.B. three more female alpacas which C.B. took, namely Annie, a black female whose name she couldn’t recall and a white alpaca called Oye Vey whom C.B. called Samantha. She was pregnant on arrival and three to four months later in May 2015 gave birth to a baby girl – a cria – called Victoria. Samantha was taller and thinner than the other two but C.B. didn’t feel she was emaciated when she got her.

C.B. agreed that pregnant alpacas are at a higher risk than non-pregnant females as they needed more food. [ 27 ] C.B. seemed unsure of when she acquired these three alpacas stating variously she had them for approximately one year before they were seized by the SPCA in November 2015, then suggesting Victoria was born in May 2015. [ 28 ] Mo’s teeth were sticking up on the bottom when she arrived at C.B.’s farm – she had protruding buck teeth that C.B. said you could see right away. C.B. said she did not then discuss the state of Mo’s teeth with Ms.

Fell and agreed she had no knowledge then about alpaca teeth including protruding teeth in alpacas, in essence, whether they were a problem or not. She said their ability or inability to eat had nothing to do with the state of their teeth. The state of Mo’s teeth in October 2015 can be seen in Exhibit 1, Tab 1 photo. [ 29 ] C.B. testified that there was no noticeable change in Mo’s teeth from the date she acquired her from Ms. Fell until the date she took note of them and called Eleanor Miller in or about October 2015. [ 30 ] C.B. explained that alpacas only have bottom teeth but a split upper hair lip.

She felt due to their lip, you couldn’t tell when looking at some of them the state of their teeth. At trial she said she then understood 25% of alpaca needed their teeth trimmed. [ 31 ] C.B. said the crias stayed with their mothers and the female alpacas were housed together whereas any male alpaca she owned was housed separately from the females, but otherwise together. [ 32 ] C.B. never up until 2015 took her alpacas or llamas to a vet for advice.

She said she did however go online and ask for a vet who knew about alpacas and explained that one could pay $25.00 for a written reply to one’s question and/or actually speak to a vet. She said she used this since for her goats.

There is no evidence she used this resource for Mo including to obtain information about the state of her teeth prior to some date likely in in the summer of 2015. [ 33 ] When asked why she would go online instead of taking her animals to see a vet, she explained that the vet was in Comox (the parties are agreed there was no large animal vet in Powell River at any material time) and that while she had a car and uncovered trailer, she couldn’t transport animals in her trailer to Comox and further, she didn’t think there were any serious issues (about them) anyway.

In the fall of 2015 she took two alpacas to Eleanor Miller’s in her own car but this was only a trip of a short distance.

[ 34 ] C.B. testified at some length concerning her actions in respect to building and improving her farm property. [ 35 ] She built a shelter to house her alpacas, keeping crias with their mothers, all females together and males apart. [ 36 ] At night she fed her alpacas grain and hay. The grain was usually all gone in the morning but not all the hay. For this reason, she believed that her alpacas were getting enough to eat. [ 37 ] Mo, Celine and Dion ate hay together in their shelter but C.B. said their grain ration was placed in a separate bucket for each animal.

These containers were not so separate that the two stronger animals couldn’t eat the grain in Mo’s bucket. [ 38 ] For about two weeks she put Mo and Rico who was then nursing (and she said alpaca crias will nurse as long as you let them) in a separate shelter entirely but then put them back with the other females as Mo did not want to be alone. Rico was still nursing in November 2015 but was also then eating grain and hay. [ 39 ] Rosemary Fell, the llama lady testified and said she received this nickname due to her reputation and involvement with “camelids” – being both alpacas and llamas.

She lived on a farm on Vancouver Island, had owned alpacas herself since 2001, had taken courses in camelid sciences in 2003 dealing with their health and nutritional needs and said she was the rescue liaison or co-ordinator for the Vancouver Island Llama and Alpaca Club. [ 40 ] Working in this rescue capacity in the five years from 2013 to 2018, she had rehoused over 150 alpacas including making three trips to the Powell River area with animals going to new homes. She also sheared camelids and by 2015 had worked at some 125 farms.

In early 2012, C.B. called her and she first attended her farm that year to shear on July 27. She then had concerns about the state of C.B.’s farm both with respect to the safety and adequacy of the fencing and the absence of a shelter for the animals.

She also helped C.B. deal with a mite problem on one of her alpacas in the summer of 2012 and suggested improvements she might make to her farm. [ 41 ] She recalled after some reflection that in the next year after she first sheared for C.B., namely 2013, she delivered three alpacas to her all said to be of good quality and registered including Mo whom she did not feel was then pregnant. She noticed C.B. had by then made improvements to her farm. These three animals were rescue animals and she testified that her principal concern as a rescue co- ordinator was the well-being of the animals.

She agreed she would not put any on a farm if to do so would result in them being unsafe or neglected. She agreed after the initial three were placed, C.B. took three more. [ 42 ] She continued to sheer likely once a year at C.B.’s farm in the four year period 2012-2015 doing her alpacas once each year and her llamas every two years but believed she had not attended C.B.’s farm in 2014. [ 43 ] She visited Cranberry Farm on June 17, 2015 at 9:15 a.m. on the way to Lund to have a honeymoon lunch with her husband Bruce having earlier got C.B. consent to do so but having been told she would not be there.

She looked at the alpacas and noticed the spinal column on two was sticking out or showing as were their ribs – they were not looking very healthy but looked lethargic. She looked around and noted there was no pasture or grass evident or water. They filled the empty water dishes. There was no hay she could find and none came. So she and her husband cut grass, vegetables and raspberry canes from C.B.’s garden and fed this to the camelids who appeared hungry. After spending three hours there, they then went to Lund for lunch.

They noticed as well an ungelded male llama was in with the alpaca females and this was of concern to Ms. Fell as alpacas can become impregnated at any time having no “heat cycle”. If a cria is born during winter months and there is no green grass and not enough nutrition for the mother to eat to produce milk, and not enough sunshine, in essence, there is a risk to both. [ 44 ] After lunch they stopped in a second time at C.B.’s farm around 3:15 p.m. and still no hay had been provided.

No one was present on the property. [ 45 ] In the result she called C.B. who was then in North Vancouver on four separate occasions and told her about what she had found that day. C.B.’s response was that someone was supposed to be there looking after the animals. [ 46 ] Ms. Fell elected to send an email to C.B. and a copy of the same dated “June 2015” at page one and 6/20/2015 at page two was marked as Exhibit 2 at the trial. It states as follows: Good morning Carol, Thank you for phoning me back last night.

As, you are aware, I have some serious concerns about what has been happening with the alpacas and llama at your farm. I was very disappointed to see how much weight the camelids had lost since the last time I saw them. Then, to find out that they didn’t have water or hay; well, you can’t blame me for being so upset. I assume that you finally bought hay, and they are being fed properly now. If your intention is to run the livestock on dry-lot pasture, you must feed them hay 365 days of the year. As per the instructions I’ve provided. You would normally provide 1 BALE OF GOOD QUALITY HAY PER LLAMA PER WEEK.

ALPACAS WILL EAT SLIGHTLY LESS. MINERAL BLOCK. I left a new ‘Camelid Delight” mineral block for your llama and alpacas. They cost $10.99 at Share-Kare and Buckerfields. Your feed store in Powell River charges $15.99. If you would like me to pick up another block for your camelids, and a mineral block for your goats before returning to Powell River, please let me know. A CLEAN WATER SOURCE MUST BE AVAILABLE AT ALL TIMES. If you have any doubt that there was no water available when

I attended your farm on June 17 th , I do have a witness who can attest to the fact. You obviously need to hire a caretaker for your farm when you’re away. While I realize you have a farm plan in place, and are attending to develop the property to acquire farm status, I get the impression that you’ve taken on too much. If you are not able to cope with the number of animals on your property, I am willing to assist in finding them good homes.

I’m sure your intentions are good, however if you wish to utilize the fiber from your camelids, you will have to take care of them, clean up the fields, get rid of the mud balls hanging from the alpaca’s coat, etc. In regards to growing grass in your pasture areas. You will need to enlarge your pasture areas, and allow some of the regions to go fallow in order for them to grow out. Your pasture will not contain enough nutrition for the animals until it’s at least six inches long. Very difficult to achieve at this time of the year given this years weather conditions.

At present you have your alpaca stud running with the dams. That means that all the females are bred, so you can expect an increase in your herd size. This will also mean that more shelter will have to be provided. And feed costs will increase as well. IF THE STUD IS IN THE SAME PASTURE AS THE FEMALES WHEN THEY GIVE BIRTH, HE WILL TRY TO BREED WHILE THEY ARE BIRTHING. THIS OFTEN CAN RESULT IN THE DEATH OF THE CRIA. FEMALE CAMELIDS BECOME PREGNANT WITHIN 2 WEEKS OF GIVING BIRTH. THIS IS NOT ADVISABLE, NOr IS IT HEALTHY FOR THE ANIMALS.

I am willing to assist you in providing information regarding animal husbandry on a small farm. I don’t want to receive another report or phone call from persons representing the SPCA or other concerned citizens. Sorry to be so rough on you, but this is the way it is. I will be back in July to teach you how to shear, trim toenails, and maintain a healthy herd. If you want me to re-home some of the alpacas in order to lighten your work-load, please let me know and I will bring my horse-trailer. We have plenty of grass, shelter and clean water at the farm I lease in Campbell River.

Have 5 alpacas and one llama boarding there at present. All males are gelded. I could keep alpacas there until we found new homes. Something for you to think about. Talk to you soon. Regards, Rosemary [ 47 ] Ms. Fell said she sent this email due to concerns she had on June 17, 2015 and to help C.B.’s animals – her main concern then being their health and well-being. [ 48 ] The weight loss she detected from her last visit was in white females and one cria who was very thin and small for his age.

In reference to this observation she made on June 17, 2015 and concern over the loss of weight issue she testified: “However, starvation doesn’t happen in two weeks. Starvation is in months and years. For an animal to get that thin as those animals were, that is starvation over a long period of time.” [ 49 ] Ms. Fell agreed there was no reference to Mo and the state of her teeth in this email.

However she also testified that she and C.B. would have verbally discussed many times Mo’s need for immediate medical attention concerning her teeth before July 8, 2015 both over the telephone and when they got together at her farm; [ 50 ] C.B. agreed she was not present at her farm on June 17, 2015 when Ms. Fell visited. She did remember receiving the above email and said she was completely puzzled why Ms. fell would say what she had therein as there was hay, grain and water then available – there was a guy there delivering it. [ 51 ] C.B. recalled vaguely I think a telephone discussion with Ms.

Fell in June and her saying that she had popped by to see her farm on her honeymoon but couldn’t really remember if she said anything else. She said she had a strong able man named Darrell living on her farm in a motor home in June 2015 and all he had to do was feed the animals a few days a week. She said she always had someone living on the farm so that when she wasn’t there someone was however, her own son was not able to help out. [ 52 ] In cross examination, C.B. was asked if it had ever been suggested she downsize her herd (of alpacas) and said Ms. Fell had even though she felt she was doing ok.

She didn’t know why Ms. Fell would make this suggestion but said in the summer of 2015, Ms. Fell completely changed her attitude and sounded like she was upset with her farm. Probably in July 2015 was the first time Ms. Fell suggested she might downsize her herd. When shown Exhibit 2 she again said she didn’t recall it and did not recognize it but said the comment therein was nonetheless stunningly false. She said she didn’t understand it or recall it and that the comments were out of line. She couldn’t explain it as e.g. there was lots of hay and water on her farm on June 17. She didn’t know if Ms.

Fell had in fact attended her farm. She guessed Ms. Fell had called her that evening. When asked if she had spoken to Ms. Fell on the phone that day at first she said “No” and then “maybe I did” and finally “I don’t remember”. She didn’t recall Ms. Fell calling her four times that day. [ 53 ] She then said Darrell was there – he lived there and then qualified her response – that she believed he was there – but she was

not. [ 54 ] When asked if Ms. Fell had raised the issue of Mo’s teeth in June 2015 she responded that she had in July – that she (C.B.) needed to get someone to look at Mo’s teeth – a vet or someone and when asked for a suggestion, Ms. Fell sent her Dr. Parke’s name and telephone number. [ 55 ] Defense counsel asked C.B. if prior to Ms. Fell raising a concern about Mo’s teeth in the summer of 2015, had she ever heard that alpaca’s teeth needed to be trimmed or cut? She responded that she had never run into that. She had read a book about llamas and never therein encountered the issue of “floating” teeth.

She further testified that after this incident, and it was not and is not clear to me what incident she referred to – that she scrutinized all the websites on alpaca farms and there was only one that mentioned sometimes they needed teeth…one of the vets in Powell River had said that about 25% of them need some teeth care – other than that, she didn’t know. [ 56 ] On July 8, 2015 Ms. Fell attended at Cranberry farm for the last time to shear C.B.’s animals and cut their toenails.

She had a microchip reader with her as C.B. couldn’t recall the names of her camelids – and used it to identify the eight adult camelids then present and made handwritten notes of her findings. She gave C.B. a copy of these notes later that evening after redoing them. C.B. was not then living on the farm. She met Darrell there with C.B. and another man. Darrell apparently told her he wasn’t living on the farm either – that he lived elsewhere up the road. Ms.

Fell said Darrell was a very capable helper with the shearing and other work she and C.B. then did and said he was “just awesome”. [ 57 ] She and C.B. while shearing did a health assessment of each animal. When she did Mo – she testified she had a grave concern regarding Mo’s health both as to her teeth and her lack of weight. The assessment involved her placing her hands on the animal’s bodies and palpating their chest, ribs, backbone and underneath. Each animal was scored by Ms. Fell from 1 (thin) to 9 (healthy).

She agreed that alpacas have a good coat usually and that sometimes unless they were really really starving it was hard to tell where they rated as far as their body weight was concerned I understood just by looking at them. Thus as their coats were thick – one needed to lay hands on it and palpate or medically examine each by touch. [ 58 ] There is no evidence in this case that C.B. ever examined any of her camelids in this way at any time or requested that someone to do so on her behalf prior to July 8, 2015. [ 59 ] Ms.

Fell later typed up her hand written notes made at C.B.’s farm and the same were marked as Exhibit 3 at trial. On or about July 8, 2015 she emailed a copy of these notes to Eleanor Miller. [ 60 ] Ms. Fell’s observations of C.B.’s herd were mixed with some scoring (as to their body condition) “fairly good” or “well” and some “very thin”. As to Oye Vey (Samantha) and Mo – Ms. Fell’s findings were as follows: White female alpaca with white female cria. Name: Oye Vey Microchip # FDXA133109297A DOB JULY 7, 2001 This female scored well, as did her cria. I do not have a date of birth for the cria.

Brown alpaca with male cria named Rico. Name: Moe (not confirmed, as Carol could not remember her registered name) Microchip # FDXA132147617A DOB? This will be on her Registration papers. This female is starving to death. She has severe dental problems Carol was told that the alpaca needs immediate medical attention. THAT WAS BACK IN JUNE!!!! She, (Carol), assured me she would call a Veterinarian to attend to this issue. [ 61 ] In cross examination defence counsel suggested to Ms.

Fell that June 2015 was when she told C.B. about how Mo needed attention and she responded “and we discussed it prior to that” over the telephone and when together at her farm. She stated: “Ms. Battaglio was aware of the dental problems with her alpaca she named Mo prior to June.” She estimated she told C.B. to call a vet concerning Mo’s teeth quite some time beforehand (i.e. before July 2015) – she estimated a year earlier. C.B. said it was in July, 2015 Ms. Fell raised the issue of Mo’s teeth for the first time. [ 62 ] Ms.

Fell’s evidence on point was: Q “Named Mo.” So, in this one you put, “The female is starving to death”? A Yes. Q What did you observe about that alpaca?

A She was skin and bones. Q You also noted she had severe dental problems? A Yes. Q What – what did you note there? A Severe malocclusion, which I suggested to Carol be repaired quite some time beforehand, and she assured me that she will call a veterinarian to have that taken care of. That is something, dental work is only done by a veterinarian. It’s not something that I would – not a service that I would provide. THE COURT: Are you able to tell me approximately when it was that you first told Carol that this – did you call it mal - A Malocclusion. THE COURT: -- clusion – a malocclusion – A Yes.

THE COURT: -- should be repaired? What – when in relation, for example, to July 8 th , 2015 would you – do you recall having told her that, or – or recommended that? A Honestly, I’d have to go back on my notes. THE COURT: Are you able to estimate, you know, one week, two weeks, two months, three months, or – or not? A I would say a year before then. THE COURT: So that’s an estimate? A That’s an estimate. THE COURT: So, you estimate 12 months prior to July 8 th , 2015 you advised Carol that that needed to be dealt with, right? A Yes. Yes, sir.

THE COURT: So, and did she at the time give you an assurance that it would be? A Yes. [ 63 ] On July 10, 2015 Ms. Fell emailed C.B. with Dr. Parke’s particulars as follows: Hi Carol, Sorry for the delay in getting back to you with the info on the Vet. The lady who specializes in llamas and alpacas is Alisha; she works at Tsolum Veterinary Clinic in Black Creek. The phone number for Dr. Peter Parke’s office/ TSOLUM MOBILE VETERINARY is Either Dr. Parke or Alysha regularly tend to alpaca dental issues.

There is another farm in P.R. that has a llama with long teeth, and I think they’re trying to coordinate a visit from the vet. How are Jason and the alpacas doing now that they’re sheared? I’ll let you know when we’re heading back over your way. Take care. Kind regards, Rosemary [ 64 ] C.B. agreed that she had received this email from Ms. Fell. In cross examination counsel asked Ms. Fell if the July 10 email to C.B. was the first time she had provided her with some information on how she could deal with Mo’s teeth – and the following exchange occurred between Ms. Fell and Mr. Saulnier: A No, sir.

Q No, you did that previously? A Yes, sir. She was supplied with manuals – THE COURT: Just a second. Okay. Earlier, by you, Madam?

A Yes, sir. THE COURT: Okay. She was supplied – what would – kind of manuals are you referencing? A Llama and alpaca care. THE COURT: Okay. A Information regarding dental issues. Telephone numbers for the other shearing company. As well as the two veterinarians that would be available, not just Tsolum Vet, but the other veterinarian that would be available to take care of any issues that she may have on the farm. MR. SAULNIER: Q Thank you, Ms. Fell. I accept that you previously provided resources about llamas and alpacas and contact information about vets for – for Ms. Battaglio.

But, specifically, on providing her with information about the people who could deal with Mo’s teeth, that was first done July 10 th , 2015? A That was first done in writing on that date. Q Okay. A Verbally, we discussed this many times. Q This info – I’ll wait for His Honour. THE COURT: Yes. MR. SAULNIER: Q Ma’am, if you’d previously give Ms. Battaglio the contact information for people who could deal with Mo’s teeth, why would you then say, “Sorry for the delay in getting back to you with the info on the vet”?

A Because she told me she had lost the paperwork, and at that time, as well, she couldn’t find the documentation, the registration papers for her animals, so that we could verify date of birth and the actual names of these animals. Q You’re referring to when you did the assessments of Ms. Battaglio’s farm, and she did not have the registration papers? A Yes, sir. [ 65 ] C.B. responded to Ms. Fell’s July10, 2015 email the next day at 2:05 p.m. as follows: Thanks Rose: I will get in touch with Alisha or Dr. Parke Monday. Do you have a phone number for Eleanor?

I was looking at Mo last night and this morning, and I think her teeth are worse, and she is having trouble eating – seems thinner than ever. So I need to do something about it asap. Maybe Rico is so attentive because he is worried too!! Carol [ 66 ] Ms. Fell later responded to C.B. as follows: Hi Carol, Eleanor Miller lives on Hillcrest. Her phone number is She is elderly, and on a fixed income, so really can’t afford any vet bills. She is very familiar with camelids. She had Winchester, her llama, for 17 years. She’s awesome with animals. I’m sure Rico is very worried about his Mom.

She is probably not producing much milk anymore, as she’s not even getting enough nutrition for herself. Having her teeth done will be a huge help. Then getting those two, (or more), onto some greener pasture will be a life-save. I think that “Bylaws’ will only allow Eleanor to keep 2 head of livestock on her size of property. Let me know how it goes with the Vet, etc. It’s raining here. Yipee!!! Have a great weekend. Rose [ 67 ] Ms. Fell was shown certain photos by Crown counsel in Exhibit 1 taken either by Ms.

Mead or another SPCA officer on November 20 at Tab 1 and said that she recognized Mo in photo #4 and she looked a lot thinner than the last time she saw her. She was then shown photo #3, a more or less face on photo of Mo’s teeth. Her evidence was as follows: Q Is there – obviously, this is a photograph showing teeth? A Yes. Q Is there anything wrong with those teeth?

A Yes. Q What’s wrong with them? A They’re too long. They look like they’ve been broken off. Yes, they’re – they’re –they’ve overgrown. Llamas and alpacas have a soft palate on top, and then their teeth on the bottom, and then chewing molars on the back. It’s really important that those bottom teeth match up to that soft palate so that they can eat grass, so that they can actually pick up grain and grasses, chew on bark. They’re – they’re – they’re browsers, as well. In other words, they eat much like a deer or elk. They eat grass, they eat trees, they eat shrubs, they chew on bark.

That helps keep their teeth worn down It does appear that she may have broken her teeth off. Q Okay. A Just the way the angle of it. Unless someone actually tried sawing them with OB wire, or something. But, yeah, they shouldn’t look like that, long story short, but it’s too late already, so – Q And does this, what you see in this photograph, the teeth the way they are, would that cause difficulty eating properly? [ 68 ] She was then shown photo #5 showing Mo’s anal area and testified “that’s one extremely thin animal”.

On being shown a photo #6 of Mo’s coat she said absolutely it was of concern – it looked as if the animal had a mite problem which could be eradicated with proper medication. [ 69 ] On being shown a further photo #7 of Mo she testified that it showed that her spinal column was sticking out. When shown photo #8 she said she recognized Mo and expressed concern over her teeth. This photo again is taken more or less face on and show Mo’s teeth – at least one sticking almost straight out of her mouth under her lips at I would estimate at about a 30 degree angle to the plane of the tongue. [ 70 ] Ms.

Fell testified that when she was last at Cranberry Farm shearing on July 8, 2015 she was concerned about her own safety on the property as the farm was an obstacle course by reason of the debris. No level clear area as requested was provided for her to shear and none secured was available. In addition, after then completing her work, she made a decision not to return again due to her concern that the soil might harbour parasites which would get on her feet or gear and be transported either to her own farm or those farms of other shearing customers. [ 71 ] Crown counsel showed Ms.

Fell photo #6 (Exhibit 1, Tab 2) of C.B.’s llama shelter and asked if she had any concern about its state? While she didn’t recognize this structure (and there is no dispute that it was taken at C.B.’s farm on November 20) she testified she did not have any concerns unless it was a sleeping area shown and then as long as the excrement shown was scooped off the floor. [ 72 ] On cross examination she agreed that alpacas like to be in groups as they feel safer. She was asked about the Canadian scale she used in July 2015 when she and C.B. examined the body health of all camelids then owned by C.B.

Nine was obese and a good score was 5, 5 to 6. This scale runs from 1 to 9 whereas the American scale runs 1 to 10. Ms. Fell did not record a numerical scale or score on July 8 for any of C.B.’s animals. In answer to a question from the Court, she said between the summer of 2015 and November, 2018 she owned ten llamas and four alpacas but one was put down in 2017. [ 73 ] I return to C.B.’s evidence as to what she did having exchanged emails with Ms. Fell on July 10, 2015 and then being informed that both Dr. Parke and Alysha tended to alpaca dental issues. She called Dr.

Parke’s office in Comox and learned again that Alysha did camelid teeth care. She then contacted Alysha pretty much immediately in July and she advised C.B. that she would put her “on the list” for when she came to Powell River and that they would call when Alysha was coming. C.B. did not testify that she asked Alysha when this visit would occur. Nor did she apparently fully describe either Mo’s dental condition or Mo’s overall state of health to Alysha found by Ms. Fell on July 8 to be that Mo was then starving to death with severe dental problems There is no evidence that C.B. ever drew Ms.

Fell’s July 8 exam result or Mo’s condition to either Dr. Parke’s attention or to Alysha’s including for example by way a text message with attached photo of her July 8 notes. [ 74 ] C.B. testified that in July 2015 she understood large animal vets did not come to Powell River immediately upon being called. Rather they came on a regular route through Powell River to deal with customers there. She was not asked what her understanding was on this point if an animal owner possessed an animal that was starving to death who requested a vet attendance to examine the animal in question.

I note in passing that there is no evidence C.B. ever had a vet come to her farm or ever requested that one do so for any reason – serious or otherwise at any time and hence it would appear her knowledge of what vets did or did not do in the summer and fall of 2015 cannot be based on her own knowledge or experience with any vet. [ 75 ] C.B. said Alysha never called back I assume to tell her when she’d be coming to Powell River to deal with Mo. She waited a few weeks and then she called Dr. Parke’s office and was told Alysha had quit. She did not really have a specific recollection of when this call was made.

She gave Alysha time at first, and when nothing happened, she called her back a couple of weeks later at least, she estimated in July or early August. [ 76 ] She gave no evidence that she ever attempted to locate Alysha to see if she still did camelid dental care notwithstanding her having left Dr. Parke’s employ. [ 77 ] When she was told Alysha had quit, she asked if Dr. Parke could attend and in essence do Mo’s teeth stating that her animal needed its teeth done. She was advised he was away for a month. In the result she asked to be put on a list and to have Dr.

Parke call her as to when he was coming to Powell River on his return after his month holiday. He never called her back. [ 78 ] C.B. said in her direct evidence that she then called the online vet service to ask about her alpaca with protruding teeth who was losing weight.

[ 79 ] On cross examination she agreed she didn’t recall the date of the call to the online vet concerning Mo’s weight and teeth or exactly what she said to him. When asked if this call was made in August or September she responded after hesitating at some length that she thought it was before Rosemary (Fell) came out in July – it may have been August or September, she was not sure and said that her memory was failing. She did say she first appreciated there was a weight issue with Mo when Rosemary visited in July 2015.

She also said one reason she hand fed Mo was that Mo had to compete for food with the two other stronger females she was with I assume Celine and Dion. [ 80 ] She was advised probably in August, maybe September – who knows by the online vet to feed Mo by hand with grains only which she did rubbing only her head while she stood as she did so. [ 81 ] C.B. in cross examination could not say her daily hand feeding Mo led to any change in her weight or body condition.

She fed Mo in this fashion for the four days she was in Powell River and her new caretaker Bobbi was supposed to do it while she was away but she was uncertain he would. [ 82 ] Alpacas not having upper teeth nibble grain with their lip. She did not hand feed hay to Mo but said Mo didn’t appear to have any difficulty picking loose hay up out of the manger not on the ground. [ 83 ] Mo did not do well notwithstanding the commencement of the hand feeding which was ongoing at a time she changed caretakers. Bobbi started in October and was at her farm in November.

He later died of a drug overdose. [ 84 ] It soon occurred to C.B. to ask one Eleanor Miller if she would look after Mo as she felt she needed someone to pay closer attention to Mo on a daily basis. Ms. Miller’s llama had died and she was anxious to have another camelid but was only legally permitted to have two due to the size of her lot. Because alpaca don’t want to be on their own and get quite distressed if they are – she decided to take Annie to Ms. Miller’s as well on October 24, 2015. She seemed to have been prompted to call Ms.

Miller as she testified on returning from Surrey on one Thursday, likely in October, she took a look at Mo when it was dark out and just all of a sudden saw her “as not doing well”. She didn’t look that great and while she felt all her other alpacas looked fine, Mo seemed worse. She was thin. But she didn’t think Mo was suffering at this time. She asked rhetorically if people suffer when they’re thin? C.B. further testified that Mo didn’t know she had crooked teeth and said: do people with crooked teeth suffer? C.B. answered her own question “I don’t know”.

This analysis seems to overlook the fact that approximately three months earlier the llama lady had opined that Mo was starving to death. [ 85 ] At the time she was hand feeding Mo, she noticed her teeth were sticking out and this was another reason she sort of kept any eye on Mo. C.B. testified she came with her teeth like that. [ 86 ] This would have been two years earlier. She felt because of Mo’s teeth deformity, the other animals were kind of mean to her. [ 87 ] Eleanor Miller testified.

She lived on a small 1 1/8 acre farm in Powell River in 2015 which she purchased in 2002 and had kept a llama for 22 years. He was put down in 2014. Prior to living on her small farm, she had resided on a 32 acre farm near Powell River and raised beef cattle, wild turkeys, more than 100 rabbits, chickens, one pig and bees. [ 88 ] In 2015 she was looking for two alpacas as they were herd animals and were not supposed to be alone. She learned of C.B. from Ms. Fell who sheared her llama. She went to visit C.B. in March 2015. [ 89 ] In her observations there, she felt C.B.’s farm was extremely inadequate.

There was a lot of mud and heaps of alpaca excrement. She couldn’t see a source of water or pasture, that is green food for the animals, all of whom save the male llama were together. C.B. was not then there but on a future return visit they met. [ 90 ] C.B. advised her there was a distant possibility she could obtain a female and cria from her but wasn’t particularly open to the idea. She went later in March and C.B. showed her the alpaca earlier discussed. It was very tiny with a tiny little cria. The female looked like a medium to small sized dog. Their condition was in her view pathetic. Ms.

Miller observed the mother trying to defend the baby at her side with all the animals in the herd moving around. [ 91 ] Ms. Miller said she noticed the mother’s teeth sticking out of her mouth at a 90 degree angle from her chin. There is no dispute that this animal was Mo. [ 92 ] On this visit, she asked C.B. how could she eat with her teeth like that? She didn’t see any food on offer at the time save C.B. had a small bucket of grain used to get Mo to come over. She asked C.B. if she had had a vet look at them and C.B. said “you mean file them” – which Ms.

Miller said is what you have to do – and she observed C.B. just shuddered or appeared to shiver all over and didn’t answer immediately but then said “she couldn’t do it.” Ms Miller left leaving open the possibility of her later getting two alpaca from C.B. [ 93 ] C.B. in her evidence did not dispute that she’d made the above comment to Ms. Miller in March 2015. [ 94 ] Ms. Miller did not return to C.B.’s farm. On October 24, 2015 C.B. called her and asked if she was interested in taking Mo and Rico.

She knew Mo was then in critical condition and agreed but said at this time there was no discussion of Mo’s condition. C.B. told her Mo would have to be hand fed. Ms. Miller understood she would have to do this because she was having difficulty eating due to her teeth and as well because C.B. was doing it. [ 95 ] Ms. Miller called Rosemary Fell to discuss her fostering Mo and her male cria Rico and decided as he was intact, there was a risk that he might impregnate his own mother, so elected not to take him.

She so advised C.B. and asked if a second female was available and C.B. agreed to provide Annie. [ 96 ] Several days later at 2:00 p.m. C.B. came to Ms. Miller’s farm to check it out and finding everything good, brought Mo and then Annie in her car. Mo was filthy on arrival, covered with mud with feces on it, on her head, around her eyes, ears and mouth and was really scrawny with no weight on her body. Also, on arrival Mo could nibble textured grain out of her hand while lying on the ground

with her teeth sticking straight out in front of her mouth. She testified Mo then ate as follows: Q Let me just clarify something, then. From the time you saw her back in March to October had her teeth changed? A Her teeth hadn’t changed at all. Q Okay. A Okay, so, when Mo went to eat I had my hands like this. Q Cupped? A Down, cupped in front of her like this. And, so, she had to get her head in my hands and kind of scoop with these big, long teeth hanging way – straight out of her mouth, scoop and then tip her head back and try to get the grain into her mouth and swallow. [ 97 ] Ms.

Miller watched Mo later this day. She observed Mo had difficulty standing. She had to put her nose down for balance and just swayed she was so weak. [ 98 ] The next morning she patted Mo which seemed to be her practise and observed Mo’s spine was sticking up three inches above her ribs. There was nothing there but fibre, skin and bones – no muscle or flesh. She had never seen this before. When she ran her hand over Mo’s haunches or hip and pelvis area she felt big bones but no flesh. [ 99 ] Her reaction was to call Dr. Van Dyck in Comox to see if he could come over. He had done so with her llama.

She made an appointment for November 3 approximately one week later. [ 100 ] She then called C.B. to report on Mo’s state and to tell her about the vet appointment on November 3. I observe that Ms. Miller was merely fostering Mo and Annie then and at all material times C.B. owned them. C.B.’s response which Ms. Miller recalled exactly was “Oh, yeah” and then “I don’t know what’s wrong with her.” And then “She’s so weak.

All she does is lie on the ground all day.” C.B. then in a cross voice asked how did she get the vet appointment? [ 101 ] She then phoned the SPCA she felt on October 27, 2015 to report an animal in distress. When asked why she had done this, she said she then knew Mo was dying and that Mo would never make it through the winter in the condition she was in. Before calling the SPCA, Ms. Miller observed that Mo couldn’t really stand up or stay up beyond doing a 5 point stance using her nose and swaying.

Annie’s condition she felt was then ok. [ 102 ] C.B. testified that Mo in late October was able to get up and walk around with her and indeed into her car with a push when she transported her to Ms. Miller’s but wouldn’t get up for her at Ms. Miller’s on a visit (she didn’t say when). C.B. assumed she was missing her cria Rico who had stayed with her. Ms. Miller’s evidence was that C.B. visited Mo a couple of days after Dr. Van Dyck attended on Mo on November 3, 2015. She recalled C.B. was then blasé about the vet’s opinion on Mo’s condition and the possibility of her survival and her really terrible teeth.

They were able to get Mo up when C.B. visited. [ 103 ] Tara Daniels from the SPCA attended at Ms. Miller’s property with a colleague one Brandy Craig on October 27, 2015. Ms Miller observed Ms. Craig manually examine Mo and saw that Ms. Craig was herself shaking after completing the exam. Following this October 27 attendance, Ms. Craig, the SPCA branch manager asked Angela Mead to handle this complaint made by Ms. Miller. At this time Mo was not trying to stand but lay on the ground and slept. She tried to nibble grass and weeds at the Miller property with teeth she couldn’t bite with.

Ms Miller was then feeding her grain three times a day – as much as she wanted. [ 104 ] The SPCA took photos of both Mo and Annie on this visit. [ 105 ] In the three days following this visit, Ms. Miller observed Mo try to stand but be unable to get up. [ 106 ] Brandy Craig testified for the Crown. In 2015 she had been the SPCA branch manager in Powell River for some four years and as such did initial cruelty examinations. Before this, she spent approximately three years as an SPCA volunteer doing the same type of work.

On an initial call, she would determine if an SPCA constable needed to be involved, for example, if an order needed to be issued. [ 107 ] In the four years prior to 2015, she recalled receiving approximately five to six complaints concerning C.B.’s animals and on each, attending at her farm to complete an initial check. [ 108 ] At the onset of her dealings with C.B.’s farm, C.B. was not present thereon very often. Ms.

Craig said she dealt with a lot of people helping C.B. on her farm including a male who lived there. [ 109 ] On theses visits she observed that the farm – the entire property was rundown and was basically mud and dirt. There appeared to be no vegetation available for the animals. She was of the opinion that C.B.’s animal shelter was not adequate but later agreed on cross examination that a roofed three sided shelter (which C.B. had in 2015) was sufficient.

On these visits, she felt the provision of water for her animals was inadequate in that the water in cold months was frozen in the receptacles or they were quite often empty and always dirty. She did recall seeing rain barrels in place collecting rain run-off from building roofs but testified that the water therein had mosquito larvae and algae in it and in her view, was not potable for C.B.’s animals. [ 110 ] As well on her early visits, she observed the bedding for C.B.’s animals to be dirty, wet and filled with feces and at times, no bedding was available at all. (Exhibit 1, Tab 2, Photo #9).

In addition, she said there were injurious objects everywhere on the farm, metal laying around, tools and garbage. There is no evidence any animal in C.B.’s care at her farm was ever injured by reason of these objects. Ms. Craig felt the fencing was not properly kept up. The coats of C.B.’s alpacas were dirty with caked, matted mud. Ms. Craig admitted she didn’t know a lot about alpacas and was not an alpaca expert but she testified that there was a general standard of care for all animals and she believed she knew a lot about animal care.

[ 111 ] Ms. Craig was asked about C.B.’s attitude in these early dealings with both the SPCA and herself and responded as follows: A Generally, she was very dismissive. She felt that we had no right to be there. Towards myself, she felt that I didn’t know what I was talking about and shouldn’t – didn’t want me on her property. Q Did she tell you that? A Yes. Q More than once? THE COURT: Just -- just a minute. MS. OPEL: Sorry, Your Honour. THE COURT: Did she tell you that more than once? A Yes. MS. OPEL: Q When you spoke with Ms. Battaglio, what was her demeanour? A There were times that she was cooperative.

Q Okay. A And there were times that she would be quite agitated and yelling. There were times that she would cry. There were times that she would tell me that she was overwhelmed and then there would be times that she would tell me that she knew what she was doing and we had no right to be there. Q From what you’ve described, was any of it aimed at you specifically or was this aimed at the SPCA in general? A I don’t know.

I — I feel, as a representative of the SPCA, it’s – it was generally the SPCA, but I know personally, I would say she didn’t like me very much, but – [ 112 ] She recalled that on some of the early visits, orders were issued with respect to certain perceived deficiencies and when the order was complied with, files would be closed. [ 113 ] Ms. Craig in response to a complaint call from Ms. Miller regarding the condition of two alpacas Mo and Annie owned by C.B. attended at Ms. Miller’s with Ms.

Daniels she believed on October 28, 2015. [ 114 ] On arrival she recalled Mo was lying on the ground and when she first approached her, Mo would not get up immediately. In took her a while to do so. She appeared to be extremely emaciated and her nose was touching the grass and running. She had clumps of grass sticking out of her mouth. Her teeth were overgrown and coming out of her mouth almost up to her nose. She was not able to chew and appeared to be repeatedly straining to swallow. Her stomach grumbled the whole time Ms. Craig was there making the kind of sound a stomach makes when one is hungry. [ 115 ] Ms.

Craig examined her manually. She was obviously emaciated and her spine was protruding. She had no fat stores. She had feces on her back end and down her legs. [ 116 ] Annie was thin but in better condition than Mo. [ 117 ] Both she and Ms. Daniels then took photos for these animals found in Exhibit 1 at Tab 1. [ 118 ] Ms. Craig testified that Mo’s teeth (seen in photo #3, Exhibit 1, Tab 1) were of concern to her because they were so overgrown. She felt Mo was not able to chew her food properly.

As well with the abnormal state of Mo’s dental occlusion she said there was a risk that teeth can actually grow right back into the animal’s face. This observation was not challenged in cross examination and is some evidence together with that given by the veterinarian Dr. Dyck that alpaca teeth do in fact grow in length over time. [ 119 ] Ms.

Craig was shown all photos in Exhibit 1, Tab 1, #1 -- #12 and said they accurately described the two alpacas Mo (brown in colour) and Annie (black in colour), for example, photo #9 showing Mo’s face and ears to be dirty by reason of her lying on the ground. [ 120 ] After this visit, Ms. Craig said she entered her findings and photographs into an SPCA database. She believed that SPCA Special Constable Angela Mead would have seen these prior to taking over responsibility for dealing with this case. [ 121 ] Dr.

Van Dyck attended at the Miller’s farm on November 3, 2015 and stayed for about 1.5 hours and his fee of approximately $490.00 was paid by Ms. Miller. He sedated Mo although he was afraid of doing so due to her weak condition and filed her teeth using a dremal tool. He took approximately 50 % of them off. They still stuck out but were mostly inside her mouth. Ms. Miller observed Mo who seemed to be fine during the filing procedure could then eat a bit. He also graded or scaled Annie and Mo on a 1-10 scale. Mo was a 1 and Annie a 5. Annie was then skinny with dull fur and scaly skin but Ms.

Miller was advised by Dr. Van Dyck that he thought she could survive but due to Mo’s condition said he had a legal obligation to report on her to the SPCA. [ 122 ] On cross examination Ms. Miller testified that she did not remember telling Dr. Van Dyck that Mo was then doing better (which she was not) or that she seemed to be getting slightly stronger in the last few days or that Mo was spending more time standing and had

started to eat grass. [ 123 ] Dr. Van Dyck testified. He was qualified as an expert. He has a veterinarian degree from the University of Saskatoon in 1992, practised in Courtenay and had dealt with large animals including camelids in his practise since 1993. [ 124 ] He testified that proper care of camelids requires that they have water and food including forage present at all times. They should consume 2% of their body weight each day. Adult camelids (Alpacas) range in weight from 60 to 80 kilograms.

They need to be able to browse and consume for example forage, leaves, and branches which are necessary for the rumination they do. When shown photo #1, Tab 2, Exhibit 1 of C.B.’s farm taken by the SPCA on November 20 he said he saw no natural grazing material present and a lot of hazardous debris present. He commented on the optimum place of crias in an alpaca herd – they needed to be separated from adult males and non- breeding females so as to be able to bond with their mother and have a good ability to nurse with her so as to obtain good nutrients from her.

This separation is required as adult animals compete for food and the bigger, stronger animals tend to get it, particularly the males. [ 125 ] Crown counsel asked Dr. Van Dyck about the kind of care camelids needed of their teeth.

He responded: A So, in terms of – in terms of getting that good food into them, yeah, they have to have their teeth checked, and normally – normally right from, let’s say, go from the time that they’re born, it’s recommended that the mother and the baby, the cria, are examined within a fairly short period of time that they’re born to make sure that there was no injury from the – the birthing, and that the baby has normal development in its mouth, ‘cause that’s the first step in getting hold of that food and making use of it, they have to be able to eat it. They can have cleft palates.

They can have teeth that don’t erupt properly. So, they won’t be able to either get the food into their mouth and then utilize it properly before they can even digest it. You an have all the best food in the world, and if they have an anomaly with their – with their – their mouth or their teeth, if not, they’re going to have problems. Q And what do you mean by problems? A Oh, they’re just not going to to be able to digest and make use of the food, and grow properly, and they can – there’s all kinds of other situations that can occur.

Thankfully, they’re not that common, but it’s always something worth checking on. [ 126 ] Dr. Van Dyck opined on nursing females’ nutritional requirements. They required a higher level of nutrition and needed their food to be supplemented with pellets, grain or extra hay. He felt it was a good idea for even experienced owners to obtain a vet’s opinion as to what would be an adequate diet for such an animal. At all material times Mo was a nursing female. [ 127 ] He testified as to how an owner could best or reasonably check on the condition of a camelid.

He felt that because camelids have such thick fibre in their coats, it can be difficult to “eyeball” their condition from a distance and ascertain whether or not a given animal is malnourished because it is e.g. not eating. Their condition was not always obvious from a distance. [ 128 ] Having been contacted by Ms. Miller and being asked to come and see a starving alpaca with extreme tooth problems he attended at her farm on November 3. [ 129 ] He examined Mo and made notes and later prepared a report marked as Exhibit 6 for the SPCA. He received same history from Ms. Miller that (

a) Mo seemed to be getting slightly stronger in last two days, (

b) was spending more time standing and (

c) Mo had begun to graze grass. [ 130 ] On his manual examination he found:

a) she was extremely thin and gaunt with no fat or muscle on her back

b) he estimated her actual weight to be 35-40 kilograms and felt she should have been twice that

c) her body condition was absolutely skeletal with only skin covering her bone structure

d) he graded her a “one” on a scale of 1-5, “one” being malnourished and extremely thin. Three would be ideal body condition. In a well managed herd a scale of 3-4 or 3-3.5 would be an average condition score range for the animals therein.

e) she had no fat reserves at all

f) he noted three incisors on the left side only of her jaw were a problem clearly out of occlusion – all very long and pointing forward in the wrong direction at a diagonal angle to the left – whereas they should only be pointing forward. They appeared overgrown. He further testified on viewing Exhibit 1, Tab 1 photo #8 – showing Mo’s teeth – that it showed how her upper lip was held back and prevented from coming down over the top of her teeth. The upper lip is very important in allowing an alpaca to grasp the food it is eating. Mo’s right side incisors appeared to meet her lip properly

g) all Mo’s molar teeth were present but appeared sharp which is not unusual but with an animal having difficulty eating would be another difficulty for it to deal with as in grinding food can cause ulcers in the mucosa of their mouth or inside their cheek but none were seen.

h) her temperature and pulse were within normal range

i) no abnormal body sounds were detected when he used his stethoscope

j) Mo’s stools were soft – this was abnormal but they were of adequate size so he thought Mo had been eating quite well

k) he detected no skin mites on Mo

l) he did not believe Mo had some variety of wasting disease but said when cross examined he would have been surprised if Mo didn’t have some disease, an underlying anomalous blood result as she was so incredibly emaciated. He said he would 100% guarantee there would have been serious problems in Mo’s blood system. He explained a “blood anomaly” as follows: THE COURT: And what is a blood anomaly, please? A Well, so when an animal hasn’t eaten, been – for whatever reason - THE COURT: Yes.

A isn’t eating properly, isn’t being – isn’t high grading properly, and then they fall really – they get depressed and won’t get up because they’re so weak, all their organs are – are affected. So their kidneys are affected, their liver is affected, their – their muscles are affected from just being down too long, and that creates more stress on their kidneys, and it’s a pretty bad cycle, downward cycle they – they could go into. THE COURT: Okay. So high-grading means picking the best food out in a herd environment? A Yes. [ 131 ] He filed Mo’s teeth giving her a sedative.

He tried to correct her incisors from deviating to the left so her lip would work better. He cut them back. [ 132 ] When the occlusion was that extreme he could not cut them all back at once as to do so would impinge on the teeth’s nerves and create a bigger problem. The filing (or “floating”) had to thus be done a little bit at first (he estimated he removed 1/3) and normally needed to be done again several months later to avoid getting too close to sensitive tooth nerves. His plan with Mo was to check her incisors in six months and probably do them again.

He testified that the reference in his report to minor incisor alignment was really a code for his procedure having done only one side of Mo’s mouth - not both. [ 133 ] He was unable to say how long it would have taken Mo’s teeth to become as he found them and said it could be a congenital problem at birth. [ 134 ] He agreed that his report (Exhibit 6) contained no prognosis for Mo. He testified that he should have graded her prognosis of recovery as grave to poor. He felt that he and Ms.

Miller likely talked about how there was a lot of risk of internal organ damage due to Mo’s extremely thin underweight condition. [ 135 ] His plan for Mo involved probably on November 3 giving her a mild deworming medication and having a lab test done (“ova and parasite”) to check if there was evidence of worms in Mo and a further deworming dose in 14 days with a follow up in 6-8 weeks and then as needed potentially a stronger deworming medication depending on the test results. He also recommended checking the rest of the herd to see if Mo was an anomaly or not.

Finally he explained the test results which disclosed that Mo had an extremely high number of eggs per gram of her fecal sample, namely 750 whereas a normal healthy animal score would be between 20 to 200 eggs. [ 136 ] On cross examination Dr. Van Dyck gave in evidence the following facts or opinions: 1. Alpacas are not stubborn animals and are very trainable 2. It was pretty unusual for an alpaca to lay down and not want to get up. 3. Grain is considered a concentrated food and an easy way to get extra calories into an alpaca to add weight. 4. Mo would have difficulty grazing with one lip stuck open. 5.

Sometimes when an alpaca is really ill you segregate it completely so they can without competition from other animals get all the food they need. If you don’t segregate sick ones they will just deteriorate. 6. Hand feeding would help Mo with ample hay available but he felt she could also manage with the one side of her mouth pellets of food in a bucket. 7. It was possibly an alternative explanation for her size that she was getting food but due to a high level of worms in her system, she was not getting the nutrients out of the food.

Worms damage an alpaca’s stomach and intestines so she can’t digest food or absorb nutrients properly. Mo had a high level of worms but some worms are common in all alpacas and hence they should be given deworming medication. Most camelid owners do so twice a year and more frequently if they show side effects and use among other medications ivomectin. 8. He did no test for parasites. It was possible that Mo had a parasite that deworming medications were not taking care of. 9. When an animal’s health is compromised worms and parasites tend to worsen. 10.

Most alpacas need floating (teeth filing) at some point in their lives. This procedure is not called for if their incisors do not protrude past their upper palate. Normal care of teeth in a larger herd of alpacas requires floating one in every four animals. Floating involves levelling high points in incisor teeth. As a rule when this procedure is performed on an alpaca there is no subsequent negative reaction and most do better quite quickly. 11. If an alpaca is eating but not defecating and not bloating, its stomach (rumen intestines) could be empty and it would take a

while to fill it up. 12. In the winter when there is no or not much grass to graze on it is sufficient for alpacas to have hay and grain – things like that as food as long as they consume 2% of their body weight daily. They can eat blackberry leaves – a staple for most west coast alpacas. [ 137 ] Dr. Van Dyck felt Annie was ok. [ 138 ] Dr. Van Dyck did contact Angela Mead by telephone between November 3 and 13, 2015. [ 139 ] C.B. was cross examined about parts of Dr.

Van Dyck’s evidence and in particular his view that if an alpaca had an anomaly of their mouth or teeth, then they were not going to be able to make use of their food and grow properly. She didn’t agree with this opinion (and did not recall his so testifying) because Dr. Parke had a different opinion which she had heard in court. She then said: “What I want to say is, you know, Mo was smaller than the other alpaca and it’s possible she was smaller because she had that tooth anomaly, however, she’d had that for a long time and she had survived into adulthood, and nobody had done anything about it.

I only had her for a year. So, yes, I agree with that. Yes, I agree she needed to have her teeth looked at. That’s why I had called the vet to get it done, and Alicia to have it done, but Dr. Parke also said that she was still able to eat. So, yeah, it’s not – I mean, it’s a disadvantage, but not a fatal thing. Okay? Is that reasonable?” [ 140 ] C.B. however agreed Mo was underweight. She had never weighed Mo. She agreed Mo had no fat reserves and agreed Mo wasn’t well and said that’s why she was trying to do something about it. [ 141 ] On November 13 Ms. Mead who had never dealt with C.B. before receiving Ms.

Miller’s complaint on October 27 contacted C.B. by telephone to advise her about it. C.B. said everything was fine according to Ms. Mead who was also certain they then discussed the most pressing issue – namely the status of Mo. She eventually agreed with some reluctance to permit an SPCA inspection of her farm on November 20 at 1:00 p.m. [ 142 ] I return to the evidence given by Ms. Miller. In mid November Mo’s condition was absolutely terrible. She was very very weak and not defecating. For approximately two weeks, she had been unable to stand. [ 143 ] On November 19, Ms.

Miller called C.B. and discussed under all circumstances euthanizing Mo. In her direct evidence, Ms. Miller said C.B. became very angry and said words to the effect to her – if Mo was an eight year child, would you do that? On cross examination she said she believed C.B. made this comment after Mo was put down the next day. In any event C.B. refused then to consent to Mo being put down. [ 144 ] Ms. Miller then called Ms. Mead on November 19 at the SPCA to seek permission to have Mo put down. Ms. Mead did not in this call tell Ms. Miller to get Mo examined by a vet first. The next day Ms. Mead called Ms.

Miller and gave SPCA’s permission to have Mo euthanized by Dr. Barnes and asked her to deliver Mo to Dr Barnes clinic at 3:15 that afternoon. [ 145 ] On November 19 Ms. Mead said Brandy Craig called her to advise Mo’s condition had worsened, that she was going downhill. I understood that this communication followed Ms. Miller’s call the same day. [ 146 ] Ms. Mead attended Ms. Miller’s farm on November 20 at 12:53 p.m. with Tara Daniels, the assistant Branch Manager of the Powell River SPCA office. Ms.

Mead was then an SPCA employee of about 9-10 years and was a special provincial constable who had been appointed to do animal cruelty investigations. She worked out of a Comox office. Her animal expertise involved doing volunteer work with SPCA, taking an animal welfare course at Thomson Rivers University as well as certain animal farming courses. When dispatched she said her goal was to relieve animal distress. If she saw an issue she felt needed to be addressed, she would prepare and serve a Notice of Distress. Ms. Mead testified that prior to her attendance, she had seen photos of C.B.’s animals at Ms.

Miller’s farm (but not been there) I assume Mo and Annie. As well, she had received a description of Mo’s condition. [ 147 ] On arrival she did a hands on assessment of Mo which involved feeling her body in various areas manually. Mo could not get up during this exam according to Ms. Mead and she didn’t recall her ever doing so while she was there. She could feel all of Mo’s spine, hip and rib outlines and bones right under her skin but not any muscle or fat stores. As well, Mo had severely overgrown teeth. She felt Mo was emaciated.

Annie who was roaming the property also appeared underweight. [ 148 ] Eleanor Miller was present during Ms. Mead’s visit. Ms. Craig believed that she too attended at C.B.’s farm on November 20 but said she had not brought the SPCA file relating to this visit to Court and couldn’t really recall what she saw that day on which Ms. Mead really took the lead. Ms. Mead could not recall if she spoke to any vet that day including Mr. Barnes in Powell River. [ 149 ] Ms. Mead then attended at the Cranberry Farm and met C.B. [ 150 ] Ms.

Mead recalled that on their arrival at C.B.’s farm, C.B. was not very happy to see them. [ 151 ] There were eight alpacas present – four adult females, one male and three crias. She and her colleague were then concerned with the state of C.B.’s property and they noticed poor fencing, were told by her there was no running water and the presence of tree stumps also noted by Dr. Van Dyck to be were felt to be a potential problem. Her major concern however was all the underweight alpacas she saw.

She felt Samantha, a white alpaca nursing a cria was most severe but three others including Celine and Dion were as well. [ 152 ] Ms. Mead also observed a rooster on the farm that appeared to have its back end torn off with bones sticking out, tissue hanging off blood present and ripped off feathers. C.B. advised that a racoon had attacked a number of her birds the night before. [ 153 ] Based on her observations, Ms. Mead issued two Notices of Distress at about 2 p.m. and served them on Ms. Battaglio. [ 154 ] The first Notice (No.

B 10786) related to the alpacas and the state of her property and set out seven issues that C.B. was directed

to address namely: 1. Provide access to clean potable drinking water. 2. Provide sufficient quantity of suitable food to allow for normal growth and the maintenance of normal body weight. 3. Provide necessary dental care 4. Ensure that the animal is kept free of infection by fleas, lice, parasites or other insects. 5. Ensure the shelter, pen, living area is cleaned and sanitized regularly. 6. Ensure the area/pasture is kept free of injurious objects or other hazards. *7.

Provide necessary veterinary care when the animal exhibits signals of injury, pain, illness or suffering that require medical attention. [ 155 ] Ms. Mead had placed an asterisque beside the last item #7 and testified that this direction related to the 4 above alpacas she was concerned about and their requirement of “vet care”. Under “comments” Ms. Mead wrote: Provide vet and dental care and follow vet’s recommendations for treatment. Provide parasite control. Clean water.

Clean shelter – 7 days. [ 156 ] The Notice provided that C.B.’s failure to address the 7 above issues within 7 days may result in legal action including application for a search warrant, removal of your animal(

s) and/or charges pursuant to the Criminal Code and the Act herein issue. [ 157 ] The second Notice of Distress issued at 2:05 p.m. related only to C.B.’s rooster. The only issue referenced thereon which C.B. was ordered to address was to provide vet care as per item 7 above on the first Notice. Under comments, Ms. Mead wrote: “provide vet care and follow vet’s recommendation for treatment” and provided C.B. with 24 hours to deal with this issue. This Notice was otherwise completed as per the f

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