R. v. Powell, 2011 BCPC 524

Citation: R. v. Powell 2011 BCPC 524 Date: 20110124 File No: 21727-1 Registry: Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GORDON WAYNE POWELL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: L. Moffat Appearing on his own behalf: G. Powell Place of Hearing: Nelson , B.C. Date of Hearing: January 24, 2011 Date of Judgment: January 24, 2011 [ 1 ] THE COURT: In this case, Mr. Powell, who was self-represented at this hearing, pleads not guilty to one count of wilfully neglecting or failing to provide suitable and adequate food, water, and shelter and care for an animal contrary to s. 446(1) (

c) of the

Criminal Code , and one count of causing or committing an animal to be or continue to be in distress contrary to s. 24(1) of the Prevention of the Cruelty to Animals Act . [ 2 ] The evidence in this case that is incontrovertible is that between February 1st of 2008 and February 7th of 2008, Mr. Powell was responsible for the care of an 11-year-old registered Appaloosa stallion named Smoke and Dreams who I will refer to hereafter as Smoke. [ 3 ] Smoke was found dead in its corral on the morning of February the 7th of 2008. It is clear on the evidence that Smoke died of starvation.

The issue in this case is whether Mr. Powell caused or contributed to Smoke's death by failing to provide proper care for him and/or permitting him to continue to be in distress. [ 4 ] As I will discuss in more detail later on in these reasons, I am left with no doubt that the horse that was found dead in his corral on the snowy morning of February the 7th, 2008, was but a shadow of his former self. His death by starvation would have been prolonged and painful. [ 5 ] I accept, to use the words of Dr.

Chart, a veterinarian who testified in this case and whose evidence I will review shortly, that anyone would have surmised that something was wrong with Smoke long before he finally expired in his corral that winter morning. [ 6 ] Smoke was purchased by Ms. Stacey Kinakin, Mr. Powell's former common-law partner, for something over $6,000 when he was four months old. Ms. Kinakin, a woman who has spent her life with horses, knew Smoke from the time he was four days old. While Ms. Kinakin and Mr. Powell were living together, they cared for up to 17 horses at Mr. Powell's home outside of Salmo, British Columbia.

When the couple split, they sold 10 of the horses and Ms. Kinakin took the remainder with her to Grand Forks, including Smoke. [ 7 ] Ms. Kinakin testified that Mr. Powell wanted some of the horses. In fact, he had three in mind. These included Smoke, and two mares. The Crown entered into evidence in this trial as Exhibit 5 a copy of a form of separation agreement signed by Mr. Powell and Ms. Kinakin in which Mr. Powell was promised Smoke. Ms. Kinakin testified that she signed the agreement only because, in her view, it was the only way she could convince Mr.

Powell to help her get out of his home in Salmo and down to Grand Forks with all of the animals. [ 8 ] Smoke remained in Grand Forks with Ms. Kinakin for some time after the couple's separation until the day that Mr. Powell came to her property and, in Ms. Kinakin's evidence, with no notice loaded Smoke in a trailer and transported him back to Salmo. He took the couple's automatic waterer with him at the time. [ 9 ] Both before and after this event, Ms. Kinakin continued to speak Mr. Powell by telephone and to visit his Salmo property on occasion. The last time she was at Mr.

Powell's property and saw Smoke was in October 2007. [ 10 ] At that time, she said she spoke with Mr. Powell about her concerns regarding Smoke's living conditions. Specifically, she was concerned about Smoke's weight loss, his food, whether he might have worms, his potbelly, his isolation in the corral by himself, his lack of shelter, his dehydrated state, and his generally shabby condition. Ms. Kinakin testified that the automatic waterer that Mr. Powell removed from Grand Forks was not, in her view, working. [ 11 ] During this proceeding, Ms.

Kinakin was asked to identify the horse shown in photographs marked as Exhibits 2 and 6. These were photographs of Smoke taken by Animal Control Officer Jackman and Constable Enkirch while he lay dead in his corral. [ 12 ] It was obviously painful for Ms. Kinakin to see these photos. She testified that Smoke appeared to be one-third his normal size. She determined quickly from the photographs that Smoke's feet were in poor shape, and his teeth significantly deteriorated. [ 13 ] Ms. Kinakin also testified that well before Smoke's death, she discussed with Mr.

Powell whether he was making mashes for Smoke out of beetroot. This involved soaking beet pulp pellets overnight and mixing them in the morning with equal parts of oats and apples. Ms. Kinakin testified that Mr. Powell told her that he was indeed mixing the beet pulp with water and soaking it overnight and adding grain in the morning. [ 14 ] A photograph marked as Exhibit 6-5 in these proceedings shows a pile of dry beet pulp in a mound on top of the snow in the corral over which is strewn several slices of mouldy white bread. Ms. Kinakin's response to the photograph marked as Exhibit 6-5 was visceral.

It clearly upset her as a person who not only knew Smoke from the time he was four days old, but also as a person so clearly knowledgeable about and familiar with the proper care of horses generally. [ 15 ] The beet pulp appeared dry and had not been mixed with anything. Rather, it appeared to be simply beet pulp lying in near pellet form in a pile on the ground over which, as I say, are strewn pieces of mouldy bread. Rather than providing any sustenance for Smoke, this mixtures was in fact dangerous for him.

In any event, it mattered little as the best evidence in this case is that Smoke may have nibbled on one of the pieces of mouldy white bread before he died. [ 16 ] Overall, I found Ms. Kinakin to have been clearly knowledgeable about horses generally and Smoke, in particular. Though she was upset from time to time, she gave her evidence in a forthright manner. There were no inconsistencies and, in fact, she made every effort to point out Mr.

Powell's qualities even as she expressed her anger at the state of Smoke as he appeared in the photographs taken by Animal Control Officer Jackman. [ 17 ] I accept her evidence that Smoke's physical health deteriorated significantly from the time he was removed from her property in Grand Forks by Mr. Powell. I accept also that she advised Mr. Powell from time to time what was necessary for the care and feeding of a horse like Smoke. [ 18 ] Smoke was found dead in his corral that morning on February the 7th, 2008, by a neighbour, Ms. Lola Monty. She and her husband had gone to Mr.

Powell's house that day to drop off some hay that Mr. Powell had asked for.

[ 19 ] I accept Ms. Monty's evidence that she had been concerned about Smoke for some time and had reported her suspicions of his neglect to Animal Abuse Officer Eric Enkirch, the previous November. When she found Smoke dead in his corral on February the 7th, 2008, she immediately reported his death to Salmo RCMP. [ 20 ] Animal Control Officer Jackman went to Mr. Powell's property that same day and photographed Smoke. Those photographs entered as Exhibit 2 in this trial depict a pitiful sight of a rather seemingly small and young horse lying dead against the rail of its corral in the snow.

The whole of the corral is filled with snow. It contains some trees, but nothing else in the way of shelter from the natural elements. [ 21 ] I am satisfied on the evidence in this case that Smoke spent many months in this corral on his own. But for the mound composed of nearly solid beetroot pellets and several pieces of mouldy white bread, there was no evidence of any other food or nourishment inside the corral. [ 22 ] A water container was located some distance from Smoke's body. SPCA Constable Enkirch testified that the water was dirty and contained green sediment.

A photograph depicting the water in just such a state was entered in this proceeding and marked as Exhibit 6- 6. [ 23 ] On the day of his death, Ms. Jackman took samples of Smoke's stomach and other organs for a subsequent necropsy. Dr. Christopher Chart, a long-time veterinarian, conducted the necropsy. He testified in this trial for the Crown. In the course of this hearing, I ruled that Dr. Chart was qualified to give an expert opinion on the cause of Smoke's death and of his general condition before his death. [ 24 ] Dr.

Chart testified that Smoke weighed 600 pounds or less at the time of this death, but ought to have weighed at least 750 pounds. Ms. Monty testified that she estimated Smoke weighed perhaps 1,000 to 1,100 in the fall of 2007. Mr. Powell admitted, as far he could estimate, Smoke had lost at least 100 pounds of his normal weight even before the winter of 2007 and 2008. [ 25 ] Dr. Chart gave the opinion that at the time of his death, Smoke was severely emaciated. He testified that while one normally would expect to see fat on and around the animal's organs, Smoke had virtually no internal fat. Dr.

Chart gave the opinion that an animal would have to have been deprived of nourishment for some time to lose its internal fat stores. If there was zero nutrition, the fat stores would disappear faster than if the horse was receiving a low level of nutrition. It would take a few months for the fat stores to disappear completely if the animal was being given some but insufficient nutrition. [ 26 ] He added that if there was no shelter for Smoke to get out of the weather in his condition, the lack of shelter would have meant that he probably became hypothermic and weaker faster than if he had had shelter. Dr.

Chart concluded, and I accept as a fact in this proceeding, as I have said, that the cause of Smoke's death was starvation. [ 27 ] In terms of Smoke's condition, Dr. Chart testified that Smoke's teeth and hooves had not been properly cared for and that he had clearly not received sufficient nutrition. Since Smoke appeared to have died from lack of nutrition, amongst other possible causes, Dr. Chart was of the opinion that he would likely have suffered. [ 28 ] He added that any person looking at this horse would have, from a close enough position to see its condition, surmised that it was underfed.

In response to a question put to him by Mr. Powell as to whether a city boy might know that a horse was in distress, Dr. Chart noted that anyone would have surmised that there was something wrong with Smoke. Dr.

Chart did agree that a person who knew little about horses might have been unaware of the severity of Smoke's dental condition and the impact that condition would have had on his ability to obtain nutrition from his food. [ 29 ] Nonetheless, the evidence is clear, and I accept, that any reasonable person ought to have known well before Smoke died that he was suffering from the effects of malnutrition. [ 30 ] Mr. Powell made much of the presence of cadmium in Smoke's organs and suggested to Dr. Chart that this could have been the source of Smoke's lack of nutrition. As for the source of cadmium, Dr.

Chart agreed that a starving animal would seek nutrition wherever it could find it including from fence posts to nearby trees. In this regard, however, there was no evidence that Smoke had chewed on any part of the fence or his corral or the trees nearby. [ 31 ] In any event, again, it was the considered opinion of Dr. Chart that whatever the cause of Smoke's lack of nutrition, be it the condition of his teeth, lack of food, or high levels of cadmium, it took Smoke some considerable time to die of starvation in his corral that winter. Dr.

Chart's opinion that anyone should have noted Smoke's poor condition well before his death was not disturbed on cross- examination. I have no difficulty accepting his opinion as to the cause of death and I accept without hesitation his opinion that any reasonable person would have noticed Smoke was suffering from malnutrition well before his death from starvation on February the 7th of 2008. [ 32 ] Mr. Powell who represented himself in this proceedings, called several witnesses on his behalf. Margaret Seer, Mr.

Powell's former partner, testified that she started to feed Smoke twice a day commencing in the summer of 2007 and continued to do so up until four days before his death when she took ill. Though Ms. Seer did not live with Mr. Powell, she testified that she went out to his house usually twice a day, morning and afternoon, and fed Smoke hay, oats and beet pulp, and gave him treats such as apples and carrots. [ 33 ] Ms.

Seer testified to having some knowledge of horses even going so far as to say, when presented with the photograph marked 6-11, a photo showing the obviously overgrown hooves of Smoke, that she had seen much worse. When presented with the photograph marked as Exhibit 6-1, which shows Smoke dead in his corral with his head leaning up against the railing, Ms.

Seer testified that the horse in the photograph looked “way smaller” and not at all like the horse she had been feeding. [ 34 ] She offered later in her testimony that there was no way Smoke could have starved to death in the four days that she was unable to make it to her ex-partner's home to feed the animal. Ms. Seer's comments in this latter regard could not have been more correct. It took much longer than four days for Smoke to starve to death.

[35] It took much longer than four days for his organs to reach the point where they were devoid of any fat. It would have takenmuch longer than four days for Smoke to reach the point where he had no trace of food in either his stomach or his colon to where he hadvirtually no fat on his body, little muscle, and where his 11-year-old frame was reduced to such an extent that in death he appeared to bea colt. [36] If Ms. Seer had been feeding him twice a day in the month leading up to his death as she testified, none of this could havehappened. I do not accept Ms.

Seer's evidence that she or her son, Gordon, fed Smoke twice a day in the months leading up to his deathfor several reasons. This testimony is entirely inconsistent with the medical evidence which I consider to be infinitely more reliable. [37] I am satisfied that Ms. Seer lied under oath about feeding Smoke as did her son, Gordon. Moreover, I am satisfied that thisevidence constituted little more than a late-breaking attempt by Mr. Powell to deal with these charges. [38] On February 13th of 2008, Mr. Powell gave a lengthy statement to Constable Enkirch about the death of Smoke.

In the course ofthis hearing, I ruled that statement to have been voluntary and thus admissible. In that statement, all of which was played in thisproceeding at the request of Mr. Powell, Mr. Powell is heard to discuss at length his efforts to feed Smoke. He describes in some detailthe amount of hay he purchased and his preparation of the beetroot mash. [39] During the interview, Mr. Powell is fully aware that Constable Enkirch is investigating the demise of Smoke and, in particular,the fact that Smoke may have died of starvation. At no point in his lengthy statement did Mr.

Powell ever tell Constable Enkirch thatMs. Seer and his son were feeding Smoke twice a day for the months before his death. [40] Towards the end of the interview with Constable Enkirch, as he discussed his depression and sleeping patterns, Mr. Powelloffered that his son had been at his home and went out and fed the animal, and Ms. Seer had been spending time with her son at thehouse and that she had gone out as well. It may be that Ms. Seer and Mr. Powell's son fed Smoke on occasion when they visited Mr.Powell.

I do not accept, however, that they fed Smoke twice per day up until four days before his death. [41] Smoke's death is not a mystery in this case. He died of starvation and, to paraphrase Ms. Seer, that did not happen over a periodof four days. [42] In this case, Mr. Powell is charged first under s. 446(1)(

c) of the Criminal Code, now 446(1)(b), which provides as follows: 446(1) Every one commits an offence who ... (

b) being the owner or the person having the custody or control of a domestic animal or a bird or an animal or a bird wild by naturethat is in captivity, abandons it in distress or wilfully neglects or fails to provide suitable and adequate food, water, shelter and care for it. [43] With respect to s. 446(1)(c), I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Powell had custody orcontrol of Smoke and that, while in his care, Smoke was deprived of suitable and adequate food and care. The nature of Smoke's deathcan lead to no other rational conclusion.

This, in my view, is a clear case of a failure to care for an animal. [44] Mr. Powell submits that this is not a case of failure to care for animals or even wilful blindness, but really a lack of expertise. Heasks this court to find that he was a city boy who really did not know when a horse was in distress. [45] He submits further that I can find on the evidence that his medical condition was such that he was not conscious enough to feedSmoke nor could he get hay for the horse because he did not have a vehicle. Of course, Mr.

Powell did not testify so these findings mustbe apparent in the evidence. [46] As for the difficulty in getting hay, Mr. Powell's own witness, Mr. Huser, testified that all Mr. Powell had to do was call him andhe would drop of any hay necessary. Others, like Ms. Monty, were doing the same thing. The lack of a vehicle could never excuse hislack of care for Smoke. As for Mr.

Powell's health, there is insufficient evidence on which I could conclude that he was so debilitated hecould not ascertain that Smoke was slowly starving to death in his back yard. [47] In the absence of any evidence of such clear debilitation, I am left with the evidence of Dr. Chart that any normal person couldsee that Smoke was in distress. I am satisfied on the evidence that any reasonable person would in the weeks and months leading up toSmoke's death note that the animal was not receiving adequate food or care.

As a person having the care and control of Smoke, Mr.Powell had a duty to do something about this and yet he did nothing. [48] On all the evidence, I am left with no doubt that Mr. Powell failed or wilfully neglected to care for and feed Smoke such that theanimal ultimately died of starvation only metres from Mr. Powell's residence. [49] Mr. Powell was also charged with causing or permitting an animal to continue to be in distress contrary to s. 24(1) of thePrevention of Cruelty to Animals Act. That

section provides: A person responsible for an animal who causes or permits the animal to be or to continue to be in distress commits an offence. [50] In R. v. Ryan, 2004 BCSC 1168 , 2004 B.C.S.C. 1168, Justice Williamson held that this

section is a strict liabilityoffence meaning that the Crown need only prove in this case Mr. Powell caused or permitted Smoke to be and remain in distress whetheror not he intended such a result. In the absence of any evidence in this case that Mr. Powell used any due diligence with respect to thecare of Smoke, I am satisfied that this case is also overwhelmingly made out. However, as I have convicted Mr. Powell under s.446(1)(c), I would not enter a conviction under this

section of the Act. [51] Mr. Powell, you now stand convicted of wilfully neglecting to care for an animal contrary to s. 446(1)(

c) of the Criminal Code,sir.

[REASONS FOR JUDGMENT CONCLUDED]