R. v. Scott Date:, 2017 BCPC 220

Citation: R. v. Scott Date: 20170706 2017 BCPC 220 File No: 26177-1 Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LEIALOHA MAY SCOTT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. T. DOULIS Counsel for the Crown: Gal-Or, A Counsel for the Defendant: Thomson, K Place of Hearing: Quesnel , B.C. Dates of Hearing: Mar 3, Aug 26, 2016, Jan 11, Jan 12, May 31, Jun 1, 2, 30, 2017 Date of Judgment: July 6, 2017 INTRODUCTION

[ 1 ] Leialoha May Scott (“Ms. Scott”) is charged under Count 1 of Information 26177-1 with causing or allowing horses for which she was responsible to be or continue to be in distress contrary to s. 24(1) of the Prevention of Cruelty to Animals Act , R.S.B.C. 1996, c. 372 (the " PCA Act "). This offence is alleged to have occurred between September 17, 2013 and September 5, 2014 at or near Quesnel, B.C. [ 2 ] Information 26177-1 is a two count information which also charged Ms.

Scott’s ex-husband, Stephen Richard Scott, with causing or allowing horses for which he was responsible to be or continue to be in distress contrary to s. 24(1) of the PCA Act , albeit with respect to a different date range. Mr. Scott died before the trial commenced so the charge against him abated. Mr. and Ms. Scott were not jointly charged under either count. [ 3 ] The Crown alleges the following horses were in distress: a. Rosie, a 22-23 year old thoroughbred mare; b. Handsome, Rosie’s one year old colt; c. Kelly, a chestnut quarter horse; and d.

Bella, Kelly’s young filly. [ 4 ] At the material time the four horses were sometimes kept on Mr. and Ms. Scott’s 13 acre property at 5019 Browning Road, Quesnel, B.C. and sometimes on the neighbouring property. [ 5 ] Ms. Scott is charged with a strict liability offence. The Crown bears the burden of proving beyond a reasonable doubt that Ms. Scott was a person responsible for the horses alleged to have been in distress and that she caused or allowed them to be or continue to be in distress. There is no need for the Crown to prove criminal intent. Once the Crown has proved the wrongful act, Ms.

Scott has the opportunity to raise a defence of due diligence on a balance of probabilities. [ 6 ] The Crown does not allege Ms. Scott caused the horses to be in distress, only that she allowed them to continue to be in distress. [ 7 ] On September 17, 2013, Constable Edge of the British Columbia Society for the Prevention of Cruelty to Animals (BC SPCA) attended 5019 Browning Road, to investigate the well-being of Rosie and Handsome. She had seen them incidentally 12 days earlier and considered them emaciated. Constable Edge’s arrival at 5019 Browning Road coincided with that of Dr.

Ginger Langan, a local veterinarian who Ms. Scott had retained to investigate why Rosie and Handsome were underweight. On that date, Constable Edge made a number of orders with which Ms. Scott complied. [ 8 ] On August 31, 2014, Constable Edge issued both Mr. and Ms. Scott a Notice of Distress for their entire herd of horses. She gave them 48 hours to comply with a number of directives, including engaging the services of a veterinarian to examine Rosie, Kelly, Handsome and Bella, and to follow the veterinarian’s advice, even if it included euthanasia. Rosie and Kelly were old and foundered.

Bella was born with an angular deformity to her right front leg and Handsome had a pronounced umbilical hernia. [ 9 ] On September 5, 2014, Constable Edge attended at 5019 Browning Road with Dr. Langan and another BC SPCA officer. Constable Edge seized Handsome. Dr. Langan and the BC SPCA officers assessed Rosie, Kelly and Bella to be in critical distress and Constable Edge had them euthanized. On August 5, 2015, Ms. Scott and Mr. Scott where charged with the offences before the Court. The Crown had the charges against Mr. Scott abated when it learned he died the previous year. The Crown now asserts that Ms.

Scott is the person responsible for all the horses in issue, including those owned by Mr. Scott at the offence date. Issues: [ 10 ] The evidence in this case raises the following: 1. At the material time, was Ms. Scott a person responsible for any or all the horses found and seized by the BC SPCA at 5019 Browning Road? 2. Was Rosie in distress during the offence period? 3. Was Handsome in distress during the offence period? 4. Was Kelly in distress during the offence period? 5. Was Bella in distress during the offence period? 6.

If any of Rosie, Kelly, Bella or Handsome were in distress during the offence period, did Ms. Scott permit them to continue to be in distress? 7. If any of Rosie, Kelly, Bella or Handsome were in distress and if Ms. Scott permitted them to continue to be in distress, did she exercise due diligence in alleviating or attempting to alleviate the distress? Evidence [ 11 ] The trial proceeds over seven days on March 3 and August 26, 2016, and January 11, January 12, May 31, June 1 and June 2, 2017. The Crown called the following witnesses: a.

Constable Carla Edge, a Special Provincial Constable under s. 9 of the Police Act , RSBC 1996, c 367, who is employed by the BC

SPCA to investigate offences under the PCA Act. Constable Edge is the lead investigator in the matter before the Court. b. Dr. Ginger Langan, who I found to be an expert qualified to give opinion evidence in veterinary medicine as it relates to horses. [12] The Crown tendered into evidence the following three exhibits: a. Exhibit 1: a booklet of photographs taken by or for Constable Edge on September 17, 2013, October 2, 2013, October 16, 2013,August 31, 2014 September 5, 2014, September 6, 2014, and four photographs taken by Dr. Wilson of an unknown date; b.

Exhibit 2: BC SPCA Order #016712, BC SPCA Notice of Distress A1159 and BC SPCA Notice of Distress #A1160; and c. Exhibit 3: Dr. Langan’s Invoice #3139 dated December 19, 2013, in the amount of $442.44. [13] After a voluntariness voir dire, the Defence agreed Ms. Scott’s various statements to Constable Edge were voluntary. Byconsent, all the evidence on the voluntariness voir dire was admitted as evidence in the trial proper. None of Ms. Scott’s conversationswith Constable Edge were audio or video recorded. The fact the defence acknowledges Ms.

Scott’s conversations with Constable Edgewere voluntary does not mean it is clear what it is Ms. Scott said, to whom it was said and when she said it. [14] The Defence called two witnesses: a. Ms. Scott, who testified on the voluntariness voir dire and the trial proper; and b. Richard McNaughton, who I found to be an expert witnesses qualified to provide opinion evidence on farrier services and treatmentof equine hooves. [15] Both Dr. Langan and Mr. MacNaughton were eye witnesses as well as expert witnesses. [16] After Ms. Scott and Mr. McNaughton testified, I invited the Crown to recall Dr.

Langan after to address the lack ofconfrontation with respect to a number of issues raised by the defence. The Crown declined to do so. [17] The Crown did not tender the following documents into evidence at trial: a. Dr. Langan’s veterinarian records of her interactions with Ms. Scott and her examination and treatment of any of the Scott horses; b. The BC SPCA critical distress form which Dr. Langan and the two BC SPCA officers signed on September 5, 2014, which permittedConstable Edge to have Rosie, Kelly and Bella euthanized; c.

The warrant Constable Edge obtained on September 4 and 5, 2014 authorizing the seizure and destruction of the Scott horses; d. The documents Ms. Scott signed on September 7, 2014, surrendering Handsome to the BC SPCA; or e. The medical records of Dr. Wilson who performed the hernia surgery on Handsome sometime after the offence date. [18] The Crown and defence referred to R. v. Chrysler, 2013 BCPC 240 , 2013 BCPC 0240 and R. v. Fountain, 2013 BCPC193. I have reviewed and considered these cases as well as the authorities referenced in those decisions. [19] The Crown has asserted that Ms.

Scott failed to properly care for her horses in multiple ways, including depriving them ofadequate food, water, shelter, pasture, general horse care and veterinarian treatment and through neglect, allowed them to continue to besick, in pain and suffering. This requires me to assess extensive evidence issue-by-issue, which unfortunately results in a lengthyjudgment. [20] On June 30, 2017, I provided an oral judgment to the Crown and Defence counsel. Ms. Scott was ill and asked that Mr.Thomson appear as her counsel and agent in her absence.

On that date, I presented my oral judgment and indicated to counsel I wouldprovide a formal written decision the following week. [21] Cases alleging animal cruelty are often highly emotional and hotly disputed. I want to thank counsel who represented theCrown and Ms. Scott for their civility and cooperation. Their professionalism ensured the truth-seeking function of this trial remainedparamount. Background Facts [22] Ms. Scott is 59 years old and of aboriginal and Irish descent. She grew up in rural Prince George and has been around horsessince she was five years old.

She got a job and bought her first horse when she was 12. She learned horse husbandry from her aboriginalfather and others; she learned holistic remedies for horse health from her great grandmother. [23] In 2004, Mr. and Ms. Scott purchased a residence on 13 acres at 5019 Browning Road, which is a 10 to 15 minute drivenortheast of Quesnel, B.C. In 2005 Ms. Scott acquired a mare named Hope and Mr. Scott acquired a mare named Kelly. They movedboth horses onto the 5019 Browning Road acreage. [24] The acreage at 5019 Browning Road neighboured a farm owned by Joe Kopetski. [25] Mr.

Kopetski, a farmer and long-time horse owner, boarded horses and produced hay on his farm. The Scotts purchased hayfrom Mr. Kopetski. The Scott herd grazed on Mr. Kopetski’s pasture and from time to time, the Scotts boarded their horses at Mr.Kopetski’s farm.

[ 26 ] Over the years, the Scotts increased the number of horses kept at 5019 Browning Road, some of which belonged to their niece and adult children. By the summer of 2013, the Scotts had eight horses, including Rosie’s foal Handsome. By the summer of 2014, with the birth of Kelly’s foal, Bella, the herd increased to nine. [ 27 ] In early 2013, Mr. and Ms. Scott separated. Ms. Scott remained at 5019 Browning Road, with her four grandchildren. Mr. Scott moved elsewhere. [ 28 ] While living at 5019 Browning Road, both before and after her separation from Mr. Scott, Ms.

Scott assumed responsibility for feeding and watering all the horses on the property. She performed these chores until her residence at 5019 Browning Road burned down in November 2013. Ms. Scott moved into a residence in West Quesnel with her four grandchildren. After that calamity, Mr. and Ms. Scott took turns caring for the horses. [ 29 ] From November 2013 to June 2014, the Scott horses were boarded at the neighbouring farm owned by Joe Kopetski. It is unclear who was principally responsible for the Scott horses while they were boarded at Mr. Kopetski’s farm. There is, however, uncontested evidence that Mr.

Kopetski arranged for Mr. MacNaughton to provide farrier services to all the horses on the property, including those owned by Mr. and Ms. Scott. Mr. MacNaughton attended the Kopetski farm every three months. The Scotts paid Mr. Kopetski for the farrier services which Mr. MacNaughton provided to their horses. [ 30 ] In June of 2014, the Scotts returned their horses to 5019 Browning Road. With the birth of Bella, sometime in late June or early July, the Scott herd numbered nine. By the summer of 2014, the Scotts had the following horses pastured at 5019 Browning Road: a.

Kelly, the chestnut mare (quarter horse), which Mr. Scott obtained in 2005; b. Kelly’s colt, Bella, born in June or July 2014; c. Rosie, the elderly thoroughbred bay mare gifted to Ms. Scott in 2011; d. Handsome, Rosie’s bay colt born in June 2013; e. Apache, a gelding belonging to Ms. Scott’s niece; f. Chance, a gelding, which Mr. Scott’s daughter, Jenna, acquired in 2007; g. Hope, a mare Ms. Scott’s acquired in 2005; h. Jewel, a black and white pinto mare belonging to Jenna; and i. Mana, a five-year-old chestnut quarter horse/thoroughbred cross mare. [ 31 ] The Scott horses were not performance horses.

They were trail horses used for light riding and were considered and treated as pets and companions. [ 32 ] Over the years, the Scotts engaged a number of different veterinarians and farriers for their horses. Ms. Scott testified the herd were serviced by a farrier every six to eight weeks and named the farriers the Scotts had retained over the years. In 2013 Charlie Stonehouse and Rick McNaughton provided those services. [ 33 ] The Scotts retained veterinarians to examine and treat their horses when they saw the medical necessity to do so. Dr.

Langan had attended and treated the Scott horses at 5019 Browning Road and at Kopetski’s farm at various times since 2007. Dr. Wilson also provided the Scotts with veterinarian services. [ 34 ] Ms. Scott said that she dewormed the horses two or three times per year and tirelessly scraped bot eggs from their legs. She also regularly brushed their fur. Rosie and Handsome [ 35 ] Ms. Scott believes she acquired Rosie in the fall of 2011; however, Dr. Langan recalls meeting Rosie in October 2010, when she performed surgery on her left hind leg for proud flesh (an overgrowth of granulation tissue). Dr.

Langan treated it with medication, managing, and removed the large mass. [ 36 ] Rosie was a former jumping horse from Vancouver which had been gifted to Ms. Scott. Rosie’s previous owner no longer wanted Rosie because Rosie didn’t like males and could only be ridden English style. Other than these attributes, Ms. Scott considered Rosie to be in good health, although she was always thin because she was a thoroughbred and that was her natural physique. Also, her feet seemed to grow quickly and she required regular attention from the farrier. [ 37 ] Rosie was impregnated by a stallion in Mr.

Kopetski’s pasture and her health deteriorated. In June of 2013, Rosie gave birth to Handsome. [ 38 ] The day after Handsome was born Ms. Scott arranged for a local veterinarian, Dr. Wilson, to examine Rosie because one of her feet seemed foundered. Ms. Scott says Dr. Wilson told her Rosie’s coffin bone in her foot had started to rotate and would continue to do so. As founder is progressive, Rosie would eventually have to be put down. At the same time Dr. Wilson was examining Rosie, Ms.

Scott’s farrier attended to trim Rosie’s hooves and rasped Handsome’s hooves for the first time. [ 39 ] After Handsome was born, Rosie began to lose a lot of weight. Rosie was unable to produce sufficient milk for Handsome, who consequently failed to thrive. Ms. Scott believed that by the time he was three months old, Handsome ought to have been 50 percent larger than he was. She arranged for Dr. Ginger Langan to examine Rosie. At that time, Ms. Scott had no concerns with respect to the rest

of the herd. September 17, 2013 [ 40 ] On September 17, 2013, Constable Edge, a Special Provincial Constable for the BC SPCA, attended at 5019 Browning Road to investigate an emaciated looking bay mare and her foal she had observed incidentally on September 5, 2013. [ 41 ] When she arrived at 5019 Browning Road on September 17, 2013, Constable Edge encountered Ms. Scott, who identified herself as Rosie and Handsome’s owner. Rosie and Handsome were isolated in a paddock with access to a large round bale of hay. While at 5019 Browning Road, Constable Edge met Dr. Ginger Langan for the first time. Ms.

Scott had arranged for Dr. Langan to examine Rosie and Handsome to try and determine why they were so underweight. [ 42 ] Constable Edge took photographs of Rosie and Handsome in the paddock: Exhibit 1, pp. 102-103, photos: DCF0063 - DCF0066. Based on her observations, Constable Edge assessed Rosie and Handsome as underweight according to the Henneke body condition scoring system used to assess a horse’s body weight. She scored Rosie at one and one-half and Handsome as two. BC SPCA Order 016712 [ 43 ] On September 17, 2013, after a brief visit, Constable Edge issued BC SPCA Order 016712 directing Ms.

Scott to take the following steps with respect to Rosie and Handsome within seven days: 1 Provide access to clean potable drinking water at all times. 2 Provide sufficient quantity of suitable food to allow for normal growth and the maintenance of normal bodyweight. 3 Ensure food and water containers are clean and disinfected and located as to avoid contamination by excreta. 4 Ensure the animal’s coat is free of matting and/or debris. 5 Provide necessary dental care. 6 Provide necessary foot, nails or hoof care. 7 Provide necessary veterinary care when the animal exhibits signs of injury, pain, illness or suffering that require medical attention. 8 Ensure the animal is kept free of infestations by flees, lice, parasites or other insects. 10 Provide shelter that ensures protection from heat, cold and dampness appropriate to the weight and protective outer coat of the animal. 11 Provide shelter that ensures sufficient shade to protect animals from direct rays of the sun at all times. 12 Provide shelter with sufficient space to allow the animal to turn freely and to easily stand, sit and lie down. 13 Ensure the shelter is cleaned and sanitized regularly. 15 Ensure the area/pasture is kept free of injurious objects.

Seek veterinary care within seven days and follow that veterinarian’s advice. [ 44 ] BC SPCA Order 016712 was a form on which Constable Edge wrote Ms. Scott’s name and the description of the animals of concern, namely “Bay Mare 21 yrs 3 month colt.” The form included a number of preprinted orders for the officer to tick-off under the heading: "Pursuant to the Provincial Cruelty to Animals Act you are hereby ordered to:” The Crown tendered BC SPCA Order 016712 as part of Exhibit 2 at trial.

[ 45 ] Constable Edge explained her reasons for checking off the boxes she did on BC SPCA Order 016712 , as follows: Those are items of areas of concern that we have when we see of what we've observed at the time of our visit and through the discussion with the animal owner. We form, in a sense, an opinion of what is going on, or an idea of what is happening and those areas that we need to address.

The PCA Act is permissive in the sense [that] while there may be situations where the Act has been contravened, we're allowed to -- we are mandated, in a sense, but we want to work with the animal owner first to be able to fix what is going on and fix whatever the problems might be. And that is what these Orders assist in that manner. [ 46 ] Constable Edge then went on to say she always ticks off the first three items on such an order. [ 47 ] At the bottom of the form was a space set apart for “comments” and a preprinted warning that: Failure to comply with the above-noted order(

s) within 7 days may result in legal action including seizure of your animal(

s) and/or charges pursuant to: the Criminal Code , the Prevention of Cruelty to Animals Act . [ 48 ] At the bottom of the Order 016712, Constable Edge provided her name and a telephone number where she could be reached. [ 49 ] Under the

section entitled “Complaint” on BC SPCA Order 016712, Constable Edge wrote: “underweight.” There is no mention in BC SPCA Order 016712 of founder, laminitis, abscesses or umbilical hernia. There was no specific direction that Ms. Scott have a farrier attend to the horses within a short period of time. [ 50 ] At the time Constable Edge issued BC SPCA Order 016712 Dr. Langan was actually present at 5019 Browning Road at Ms. Scott’s request. Constable Edge said she kept her interactions with Ms. Scott on September 17, 2013, brief because she didn’t want to interfere with Dr. Langan. Before Constable Edge left, Ms.

Scott agreed to contact her and let her know the outcome of Dr. Langan’s visit. [ 51 ] Dr. Langan first examined Rosie on September 17, 2013. She testified the major concern at the time was to put some weight on Rosie and nutrition into her foal. Dr. Langan acknowledged that thoroughbreds do not keep their weight very well at the best of times and this was especially true when the mare had just foaled out. Ms. Scott and Dr. Langan were concerned about Rosie’s teeth because bad teeth are a common cause of a horse to lose weight. Dr.

Langan’s examination indicated that Rosie’s teeth were not the cause of her poor body condition. Dr. Langan recommended Ms. Scott provide Rosie and Handsome with nutritional supplements. [ 52 ] Either one or both of Dr. Langan or Constable Edge raised with Ms. Scott the possibility the hay she was feeding Rosie was of poor nutritional value. Apparently the local hay crops in 2013 and/or 2014 were compromised nutritionally because of excessive rain. Although she did not arrange for an analysis of the Scott’s hay supply, Dr. Langan was aware that in general 2013 local hay crop had poor nutritional value. Dr.

Langan acknowledged that Ms. Scott would not have been aware of this deficiency. Dr. Langan conceded with what she knew, Ms. Scott was “doing the best she could.” [ 53 ] The Scotts purchased their hay from Joe Kopetski, which fed their entire herd, including Rosie. Although the other horses were not suffering, Ms. Scott accepted the advice she received about the impoverished hay, returned it to Mr. Kopetski’s and sourced out a different supplier. Thereafter the Scotts obtained their hay from Blackwater and Bouchie Lake area near Quesnel. Ms. Scott said she “lost a neighbour” because of this incident and Mr.

Kopetski had to sell the rejected hay to someone else for less money. Follow-up [ 54 ] On September 18, 2013, Ms. Scott contacted Constable Edge confirming that Rosie and Handsome were under Dr. Langan’s care and that Dr. Langan was going to arrange some blood tests to investigate why Rosie was so thin. In the interim, Ms. Scott began bottle feeding Handsome goat’s milk and continued Rosie on the beet pulp supplements she had started prior to consulting with Dr. Langan. [ 55 ] On September 23, 2013, Ms. Scott called Constable Edge and confirmed she had obtained a better quality of hay and that Dr.

Langan was sending Rosie’s blood samples to the animal disease diagnostic laboratory in Pullman, Washington to investigate the source of the abscessing in Rosie’s feet. Ms. Scott also assured Constable Edge she was following the feeding options Dr. Langan had recommended. [ 56 ] Dr. Langan ordered the blood tests Ms. Scott authorized. These were conducted on September 22, 2013, and on September 27, 2013, Dr. Langan discussed the protein electrophoresis test results with Ms. Scott. She advised Ms. Scott the test indicated Rosie had an infection. Ms.

Scott understood from this conversations that Rosie was infected with a parasite she caught from the stallion who impregnated her. Dr. Langan, however, concluded that in the fall of 2013, Rosie was suffering from abscessed hooves, founder and chronic inflammation caused by infection. She attributed Rosie’s chronic inflammation primarily to founder and secondarily to sole abscesses. Dr. Langan did not know at that time if Rosie’s P3 had begun to rotate. [ 57 ] I understand from the evidence of Dr. Langan, Ms. Scott and Mr.

MacNaughton that sole abscesses can be the result of founder or laminitis or navicular or the intrusion of a foreign object, such as a pebble, into the horse’s foot. [ 58 ] Dr. Langan opined that in the fall of 2013, Rosie was likely in pain, but the treatment for her condition was anti-inflammatories, which would have caused gastric ulcers in her nursing foal. Nevertheless, she did prescribe Rosie some anti-inflammatories albeit not the amount she needed because of the adverse impact of this medication on the nursing foal. [ 59 ] Ms. Scott testified she purchased for and administered to Rosie all the Bute Dr.

Langan had prescribed. I understand Bute is an equine anti-inflammatory and pain killer. Because she could give Rosie Bute for only a limited period, Ms. Scott also gave Rosie willow bark as an herbal remedy for pain relief. [ 60 ] Dr. Langan testified that treating a horse with Rosie’s afflictions was a huge job. It required daily medication, daily poultices on

the feet, farrier services every four to six weeks and sometimes special shoes. It is expensive, in excess of $2400 per year just for farrier costs. In addition, there would be costs for antibiotics and anti-inflammatories. Even then the treatment can be unsuccessful. The alternative is euthanasia. Dr. Langan said: But when I get a foundered horse, I go through the steps with people. . . it's a chronic disease. It's long-term management, the prognosis is iffy. We will try it and turn this acute phase around.

If we can't, . . . we are putting [the horse] down in most cases. [ 61 ] In the fall and winter of 2013, Ms. Scott attended at Dr. Langan’s office to obtain antibiotics for Rosie. While there, Ms. Scott reported to Dr. Langan she had obtained some foal supplements and Handsome was doing well. Ms. Scott obtained a second course of antibiotics for Rosie later that year. Ms. Scott testified that she gave Rosie all the antibiotics Dr. Langan prescribed. Dr. Langan was not able to say whether Rosie would have required any additional antibiotics. [ 62 ] Ms.

Scott said that she did attend to Rosie’s hoof care on a daily basis. She irrigated the abscesses, kept the hooves clean and dry and applied poultices. Nevertheless, Rosie’s feet deteriorated. It came to a point where Rosie would not allow a farrier to trim her feet. So this is something Ms. Scott did herself when Rosie was laying down. Ms.

Scott said Rosie’s feet “didn’t look pretty” but they were trimmed back and rasped. [ 63 ] Constable Edge returned to 5019 Browning Road on October 2, 2013, at which time she observed that Rosie and Handsome were still in the paddock and had access to grain, water and a better quality of hay. Ms. Scott was providing Rosie and Handsome the mixture of feed Dr. Langan had recommended. During this visit, Ms. Scott told Constable Edge that Dr.

Langan had not “floated” (filed Rosie’s teeth) because she had a heart murmur and she could not be tranquilized. [ 64 ] Constable Edge testified that during this October 2, 2013 visit, she walked into the paddock where Rosie and Handsome were housed. She noted some debris, which she described as “some cans and some garbage and stuff within the paddock” and discussed with Ms. Scott the need to remove the debris. Constable Edge took photographs of Rosie and Handsome and their environs on October 2, 2013: Exhibit 1, pp.104-07, photos DSCF0084-DSCF0088.

None of the photographs Constable Edge took on September 17, October 2 or October 16, 2013, depict any significant or hazardous debris in the paddock: Exhibit 1, pp. 101-09. [ 65 ] Constable Edge congratulated Ms. Scott and was “really happy with what was happening.” Constable Edge also testified in her examination-in-chief, she believed Ms. Scott had complied with her September 17, 2013 BC SPCA Order 016712. Nevertheless, on October 16, 2013, Constable Edge again attended at 5019 Browning Road to see how things were progressing with Rosie and Handsome and to make sure they were on track.

This was only a five minute visit. At the time Ms. Scott advised Constable Edge her neighbour was going to assist in providing shelter for Rosie and Handsome. [ 66 ] Constable Edge’s photographs taken on October 16, 2013, do not show anything in the paddock beyond Rosie, Handsome, grass and hay. The water buckets are accessible at the fence line: Exhibit 1, p.109, DSCF0102- DSCF0103. [ 67 ] None of the photographs Constable Edge took in 2013 are of Rosie’s feet or Handsome’s hernia: Exhibit 1, pp. 101-109. [ 68 ] On November 7, 2013, Constable Edge again attended at 5019 Browning Road; she also spoke to Ms.

Scott on the telephone. Ms. Scott told her Rosie and Handsome were gaining weight and their condition improving. Constable Edge observed Rosie and Handsome were feeding on grain. Constable Edge testified she had concerns about Rosie’s pain from her foot abscesses and Handsome’s hernia and wormy belly, but took no further action because the horses were under Dr. Langan’s care. She noted Rosie looked a little better. Ms. Scott told Constable Edge she was deworming Handsome and discussing pain management options for Rosie with the veterinarian. Ms.

Scott wanted to wait until Handsome was weaned before giving Rosie more pain medication. Constable Edge commended Ms. Scott on the amount of grain she was feeding Rosie and Handsome, how she was going about it and the fact she had implemented a good plan. [ 69 ] Constable Edge said that between September and December 2013, Ms. Scott was very good at keeping in touch with her and updating her on the horses ongoing veterinarian care. In December Constable Edge went again to 5019 Browning Road and discovered the residence had burned down and there were no horses on the property. [ 70 ] On December 19, 2013, Ms.

Scott received a call from Joe Kopetski. He told her that he thought Rosie had caught a cold and describe the symptoms. By his description, Ms. Scott feared he had given Rosie her beet pulp supplements without first soaking them in water to ensure they expanded prior to Rosie ingesting them. Ms. Scott called Dr. Langan who attended at the Kopetski farm and relieved Rosie’s distress. Exhibit 3 is Dr. Langan’s invoice for $442.44 with respect to these services. [ 71 ] Constable Edge testified she contacted Doctor Langan in December 2013. Dr. Langan claimed she had not heard from and had lost contact with Ms.

Scott. [ 72 ] Ms. Scott did not seek any further veterinarian care for Rosie after December 19, 2013. Instead, she treated Rosie with her homeopathic remedies and had a farrier trim her hooves until Rosie refused to cooperate. After that, Ms. Scott tended to them herself. Handsome [ 73 ] Dr. Langan describes Handsome when she first saw him on September 17, 2013, as “bright and alert” and “a normal-looking foal except for he was thin because his mom wasn`t producing enough milk for him.” [ 74 ] After September 17, 2013, Handsome gained weight and prospered on the nutritional supplements Ms.

Scott provided. [ 75 ] Handsome also developed a hernia. Dr. Langan described this as an umbilical hernia formed as a result of a congenital defect. The hernia was a hole in Handsome’s belly. It was ordinarily painless unless a piece of gut slipped into it, but that was rare. This defect can seal over naturally unless it is fairly large, as in Handsome’s case. ​Dr. Langan testified that generally a veterinarian will want to try and fix a hernia when the foal is around six months. By this age, the foal’s liver and kidneys have sufficiently matured to handle the

drugs necessary in the operation. As the horse gets bigger, the surgery becomes more complicated because the horse needs to be anesthetized and the veterinarian has only 30 minutes with their injectable medications to keep them down. And the bigger they get, the harder it is to keep them down, and the greater the risk of complications with the surgery. [ 76 ] Ms. Scott did not notice Handsome’s hernia when he was born. She believes it developed in the spring of 2014 as result of Handsome running with the herd while stabled at Joe Kopetski’s farm. Ms. Scott said she asked Mr.

Kopetski to place Rosie and Handsome in a separate pen, but this didn't happen right away. Ms. Scott believes Handsome’s hernia was caused by pressure from running. [ 77 ] Ms. Scott used manual manipulation to encourage the hernia to heal on its own. She believed this would gradually reduce the hernia naturally and obviate the need for surgery. [ 78 ] Constable Edge testified that she noticed Handsome’s hernia on September 17, 2013, when she first went to 5019 Browning Road. She described it as being about the size of a dollar coin. She claims she told Ms.

Scott at that time it should be rectified fairly quickly because it would enlarge. There is no mention of a hernia in Constable Edge’s BC SPCA Order 016712 nor is it depicted in her photographs taken in 2013: Exhibit 1, pp. 101-109. [ 79 ] I accept that Handsome did have the umbilical hernia since birth. As he grew, so did his hernia and by September 2014, it was the size of Dr. Langan’s fist. Dr.

Langan gave the following evidence about Handsome’s hernia: a. just as in a human, there would never be pain from an umbilical hernia in a horse; b. the only time Handsome’s hernia would be painful was if a piece of gut slipped into it, but that is very uncommon; c. there no way of knowing the level of risk that Handsome’s gut would slip into the hernia; d. the risk of the gut slipping in would increase if Handsome were to be used as a performance or riding horse; e. Handsome could “walk around for 20 years with that hernia and not have a problem;” f.

Handsome was not in any pain or distress as a result of the hernia; g. the hernia would not rupture; h. the risk the hernia would open up was “slim to none;” i. she raised the issue of Handsome’s surgery with Ms. Scott in September 2013; j. when she first saw the hernia on September 17, 2013, Handsome was too young to have surgery; k. at some point she provided Ms. Scott with an estimate of the cost of the hernia surgery, but she could not say how much; and l. typically hernia surgery ranged from $600 when the horse is young to $1500 when it is older. [ 80 ] Ms.

Scott maintains Handsome’s hernia was not visible in September 2013, and denies having any discussion about hernia surgery with Dr. Langan at that time. She says it was not until late August 2014 that she discussed Handsome’s hernia with Dr. Langan, who quoted her $1,300 for the surgery. Also, Ms. Scott would have to transport Handsome to a different location for post-operative care, which was a barn down the Quesnel-Hixon road and would cost $400. Ms. Scott says this was the only discussion she had with Dr.

Langan about repairing Handsome’s hernia. [ 81 ] Constable Edge was of the view Handsome’s hernia could have been rectified at birth. This of course, contradicts Dr. Langan’s opinion that the surgery was best performed at six months when the foal’s liver and kidneys are sufficiently mature to handle the drugs the veterinarian needs to give him to perform the surgery. [ 82 ] Constable Edge described Handsome’s hernia on September 5, 2014 as large, and potentially fatal if it burst. She considered Handsome in distress, but not critical distress. [ 83 ] On September 7, 2014, Ms.

Scott attended at the Quesnel shelter and signed a document surrendering Handsome to the BC SPCA. No documentation was entered into evidence with respect to this event. [ 84 ] Dr. Wilson performed the hernia surgery on Handsome sometime after September 7, 2014, and Handsome was “rehomed.” Kelly and Bella [ 85 ] Mr. Scott acquired Kelly in 2005 for light riding. At the time, Kelly was five years old. Mr. and Ms. Scott knew Kelly had bad feet from the outset. Kelly appeared pigeon-toed and when her feet grew they flattened right away. The Scotts kept Kelly’s feet straight with regular farriering.

They also provided Kelly with Hoffman’s mineral supplements to build up her hoofs and applied pine tar to keep them moist. Ms. Scott says that Mr. Scott rode Kelly bareback for two summers on riding trails which were easier on her feet. Kelly always sauntered like a turtle and refused to accept a lead from anyone other than Mr. and Ms. Scott. [ 86 ] Dr. Langan believes she first saw Kelly in 2007 when the Scotts called her to attend at 5019 Browning Road to relieve Kelly from choking. Dr.

Langan said Kelly recovered well from that incident and she did not see Kelly again until August 12, 2014. [ 87 ] When Constable Edge attended at 5019 Browning Road on September 17, 2013, Kelly was not on the property (nor obviously Bella who was born in the summer of 2014). Constable Edge says she was only dealing with Rosie and Handsome at that time.

[ 88 ] Dr. Langan said when she attended 5019 Browning Road in September 2013, Kelly was out in the pasture. She did not examine Kelly and did not remember her. [ 89 ] The Scotts moved their herd to Joe Kopetski’s farm after their residence burned in November 2013. The herd returned to 5019 Browning Road in June 2014, and later that month or in early July 2014, Kelly gave birth to Bella. Ms. Scott describes Bella as a perfectly healthy little foal, but shortly after birth, she showed signs of an angular limb deformity to her front right leg. Dr.

Langan testified that this condition occurs sporadically in new-born foals. The Scotts tried wrapping Bella’s knee joint hoping it would straighten naturally, but Bella would not cooperate. August 12, 2014 [ 90 ] Ms. Scott asked Dr. Langan to examine Bella’s right front leg which was exhibiting the angular deformity. On August 12, 2014, Dr. Langan stopped by 5019 Browning Road in Ms. Scott’s absence and conducted a “distance assessment” of Bella. Dr. Langan telephoned Ms. Scott later that day and told her a brace would likely not suffice and that Bella would require surgery to straighten her leg. [ 91 ] Dr.

Langan considered Bella’s angular limb deformity as severe. Surgery would likely be required to correct the limb - ideally by the time Bella was eight weeks. When Dr. Langan saw her on August 12, 2014, Bella was too young for surgery. Also, Bella would require a pre-operative x-ray to determine whether the condition could be corrected with casts. [ 92 ] Dr. Langan testified that Bella was not in any pain as a result of this deformity. Had it been left uncorrected, Bella may have developed arthritis in the knee joint in six to nine years which would cause her pain. Dr. Langan told Ms.

Scott what could be done to straight Bella’s leg and if nothing was done, then the foal should probably be put down. [ 93 ] Ms. Scott told Dr. Langan on August 12, 2014, that she would look into financing Bella’s surgery. As Dr. Langan did not offer her services, Ms. Scott assumed she did not have the time to perform the surgery herself. Moreover, Dr. Langan worked out of her home and did not have her own operating theatre so she had to arrange to perform her surgeries elsewhere. [ 94 ] Ms. Scott contacted Murdoch Veterinary Clinic in Prince George, B.C. and obtained a quote of $1,300 for Bella’s surgery.

She also learned it would cost $1,200 to transport Bella and Kelly to and from the Prince George clinic. Kelly had to accompany Bella because Bella was still nursing. [ 95 ] Ms. Scott intended to have Bella undergo the operation as soon as it could be arranged and financed. [ 96 ] While at 5019 Browning Road on August 12, 2014, Dr. Langan said she spoke to “someone” (not Ms. Scott) about euthanizing Kelly. This unidentified person told Dr. Langan he wasn’t going to euthanize Kelly because the foal was only one-month old. Dr. Langan agreed that to euthanize Kelly was to kill her foal.

She then backtracked and said, “Well, if you want to get really technical about it, I had no advice for that horse except you need to deal with the horse.” She did not examine Kelly that day because that is not what was asked of her. When specifically asked, whether she told Ms. Scott that Kelly needed to be euthanized, Dr. Langan said, “I am not sure.” Later Dr.

Langan said that as of August 12, 2014 she “hadn't made any decisions on Kelly because we had not examined her or come up with a treatment program.” August 29 and 30, 2014 [ 97 ] On August 29, 2014, Constable Edge was investigating a complaint by the Brand inspector of eight horses loose on Browning Road. Because of their location and description, Constable Edge suspected these horses belonged to the Scotts. Constable Edge contacted Dr. Langan who confirmed she had been to the Scott property earlier that month and the horses she described did belong to Ms. Scott.

Constable Edge testified that based on the information she received from Doctor Langan about her recent observations, she determined that the horses did not fall under the critical distress protocol within the PCA Act , and therefore did not require the BC SPCA’s immediate intervention. [ 98 ] Constable Edge advised both the Brand Inspector and the RCMP that the Scott horses on August 29, 2014 were not in “critical distress.” She asked the Brand Inspector to contain the escaped horses to ensure their safety. [ 99 ] On August 30, 2014, Constable Edge asked the manager of the BC SPCA Quesnel shelter to attend 5019 Browning Road and post a notice to the field gate asking the horse owner to contact her immediately.

Later that day, Ms. Scott received the BC SPCA notice and contacted Constable Edge. Ms. Scott confirmed the escaped horses belonged to her and her ex-husband and the bay mare and bay colt were the same horses she observed at 5019 Browning Road in September 2013. This was a brief conversation during which Ms. Scott updated Constable Edge on activities since December 2013. She confirmed that she had the funds and intention to proceed with Handsome’s hernia operation. [ 100 ] Constable Edge arranged to meet with Ms. Scott in person at 5019 Browning Road at 1:30 p.m. on August 31, 2014.

August 31, 2014 [ 101 ] On August 31, 2014, BC SPCA Constables Edge and Jamie Wiltse attended at 5019 Browning Road with Sarah Steeves, a shelter worker with BC SPCA in Quesnel. Ms. Scott invited the BC SPCA Constables on to the property and consented to their conducting a herd inspection. The Crown did not adduce any written consent into evidence and the Defence did not challenge its voluntariness of Ms. Scott’s consent. [ 102 ] Constable Edge was at the 5019 Browning Road for about one hour during which time she discussed each of the horses with Ms. Scott.

Constable Edge learned that Kelly and Bella belonged to Mr. Scott. Constable Edge observed a number of conditions with respect to the Scott horses and their environs which caused her concern. These concerns were documented in Exhibit 1, pp. 110-128, photos DSC_0103 -DSC_139.

[ 103 ] Constable Edge issued to Ms. Scott, BC SPCA Notice of Distress A1159 with respect to “8 horses including 2 foals” and to Mr. Scott, BC SPCA Notice of Distress A1160 with respect to a “herd 8 horses - Kelly & Foal, Jewel, Chance”. These Notices of Distress were entered a part of Exhibit 2 at trial. [ 104 ] Notwithstanding the form and content of the Notice of Distress, Constable Edge stated the only horses in distress were Kelly, Bella, Rosie and Handsome.

When asked why BC SPCA left the Scotts in possession of all other horses kept at 5019 Browning Road, (namely, Hope, Mana, Jewel, Apache and Chance), Constable Edge stated: . . . The other horses did not qualify as being in distress at that time. They required some care but did not meet the

definitions of distress to the extent for us to remove them from the property. [ 105 ] Constable Edge alleged the following symptoms of physical distress with respect to the four horses in issue: a. Kelly : the chestnut mare, was underweight (Exhibit 1, p. 122, DSC_0127), suffering from laminitis (Exhibit 1, pp. 127-128, photos: DSC_0137-DSC_0139) and required farrier care to trim and rasp her hoofs; b. Bella : Bella, Kelly’s, chestnut foal had an angular deformity of her front right leg (Exhibit 1, pp. 121-122, 125, photos DSC_0124- DSC_0126 & DSC_0133); c.

Rosie : Rosie, the bay mare was underweight, suffering from laminitis and an infestation of bot eggs (Exhibit 1, pp. 123-125, DSC_0128-DSC_0132); and d.

Handsome : Handsome, Rosie’s bay colt, was also infested with bot eggs and suffering from an untreated hernia (Exhibit 1, p. 120, photo 0123). [ 106 ] With respect to the environs, Constable Edge was concerned about the potential hazard caused by debris associated with the collapsed structure surrounded by mesh fencing (Exhibit 1, pp. 117-120) and binder twine mixed in with the hay (Exhibit 1, p. 126, DSC_0134- DSC_0135). [ 107 ] By August 31, 2014, the BC SPCA had changed its form of orders from those used in 2013.

Now they referred to the orders as a “Notice of Distress.” [ 108 ] On August 31, 2014, Constable Edge issued Notice of Distress Order A1159, directing Ms.

Scott to comply with the following orders to relieve the distress to the “ 8 horses including 2 foals ”: 1 Provide access to clean potable drinking water at all times. 2 Provide sufficient quantity of suitable food to allow for normal growth and the maintenance of normal bodyweight. 3 Ensure the food and water containers are clean and disinfected and located as to avoid contamination by excreta. 4 Ensure the animal’s coat is free of matting and/or debris. 6 Provide necessary foot, nails or hoof care. 7 Provide necessary veterinary care when the animal exhibits signs of injury, pain, illness or suffering that require medical attention. 8 Ensure the animal is kept free of infestations by flees, lice, parasites or other insects. 13 Ensure the shelter, pen, living area is cleaned and sanitized regularly. 15 Ensure the area/pasture is kept free of injurious objects or other hazards.

To have Kelly, Rosie & 2 foals (colt) seen by a registered veterinarian & to follow their advice including euthanasia. To have all horses feet done by a qualified farrier

To fence off fallen/collapsed house [ 109 ] Constable Edge gave Ms. Scott 48 hours to comply with all these orders except for item number 6 (farrier services), for which Ms. Scott had 14 days to have the horses hooves tended to by a farrier. [ 110 ] On August 31, 2014, Constable Edge also met and spoke to Mr. Scott. She issued to him Notice of Distress Order A1160, directing Mr.

Scott to comply with the following orders to relieve the distress to the “Herd 8 horses - Kelly & Foal, Jewel, Chance” : 1 Provide access to clean potable drinking water at all times. 2 Provide sufficient quantity of suitable food to allow for normal growth and the maintenance of normal bodyweight. 4 Ensure the animal’s coat is free of matting and/or debris. 6 Provide necessary foot, nails or hoof care. 7 Provide necessary veterinary care when the animal exhibits signs of injury, pain, illness or suffering that require medical attention. 8 Ensure the animal is kept free of infestations by flees, lice, parasites or other insects. 13 Ensure the shelter, pen, living area is cleaned and sanitized regularly. 15 Ensure the area/pasture is kept free of injurious objects or other hazards.

To have Kelly & her foal seen by a registered veterinarian & to follow that vet’s advice including euthanasia. To have Kelly, Chance, Jewel’s feet done by a qualified farrier To ensure all fencing is safe To fence off collapsed house To clean all debris from field [ 111 ] Mr. Scott was given 48 hours to comply with all these orders except for number 6, for which he had 14 days in order to have the horses hoofs tended to by a farrier. [ 112 ] The collapsed structure of concern is depicted in Exhibit 1, pp.117-120, photographs DSC_0117 to DSC_0122.

This was a storage structure originally attached to the Scott residence which burned down. Ms. Scott said at that time she was engaged in a struggle with her insurer to remove the debris. She fenced it off with snow fencing, but the horses continued to push through this fencing to access green grass growing on the perimeter of the debris. [ 113 ] There is no evidence that any horses were injured as a result of this collapsed structure. Although Dr.

Langan noticed some old injuries on some of the Scott horses she inspected on September 5, 2014, these mostly predated the fire which destroyed the Scott residence. [ 114 ] Upon receiving the BC SPCA Notice of Distress Orders 01159 and 01160, the Scotts decided to euthanize Rosie and Bella and Ms. Scott relayed this information to Constable Edge on September 1, 2014. Shortly after this conversation, Constable Edge spoke with Mr. Scott directly and confirmed this information. [ 115 ] On or about September 2, 2014, Ms. Scott called Constable Edge and advised her Mr. Scott was too ill to euthanize the horses. Mr.

Scott, had just been diagnosed with terminal cancer. As he just received his own death warrant, he is not about to go kill his pets. [ 116 ] On September 2, 2014, Dr. Langan confirmed Ms. Scott had arranged for her to perform Handsome’s hernia surgery.

[ 117 ] On September 3, 2014, Ms. Scott advised Constable Edge that she was working with her niece who knew an old cowboy who could euthanize the horses on September 3 or 4, 2014. [ 118 ] On September 4, 2014, Constable Edge contacted the Quesnel BC SPCA shelter and asked a staff member to attend at 5019 Browning Road to see how many horses in the field. On September 5, 2014, Constable Edge learned there were eight horses in the field. This confirmed the Scotts had not euthanized Rosie and Bella as expected. Constable Edge sought and obtained a search warrant and made arrangements for the RCMP, Dr.

Langan, haulers and a backhoe operator to assist in euthanizing and burying the horses. [ 119 ] On September 5, 2014, Constable Edge attended at 5019 Browning Road and observed the herd of eight horses in the field, including Rosie, Handsome, Kelly and Bella. This was the same herd of eight horses she had observed on August 31, 2014. Constable Edge repeatedly referred to eight horses, although at the time, the Scotts had nine horses. [ 120 ] Constable Edge stapled her warrant to the post of the entrance gate and carried out an inspection of four adult horses.

She found overall their body condition was good, but their hooves needed attention. The field had not been cleared of debris, but the horses had water and hay. [ 121 ] Sara Steeves took photographs on September 5, 2014: Exhibit 1, pp. 129-164. [ 122 ] Dr. Langan said it was not until she inspected the horses on September 5, 2014 that she determined the horses ought to have been euthanized. She had no consent from the owners of the horses euthanized on September 5, 2014; however, she followed the protocols for animals in distress. Dr.

Langan examined the horses to determine whether they were suffering and stated “weighing the economics and the other extenuating circumstances around the situation with those animals, the decision was made that the best option for them was euthanasia, and that was decided with the SPCA Constable.” [ 123 ] Constable Edge, Dr. Langan and another BC SPCA officer declared Kelly, Rosie and Bella to be in critical distress and Constable Edge ordered the horses euthanized.

A Conservation Officer shot the three horses and Constable Edge ordered them buried at 5019 Browning Road. [ 124 ] No necropsy was ever conducted. [ 125 ] With respect to the remaining horses, Dr. Langan said some of the horses had old injuries that had healed, some had hooves that had needed attention, but overall their body condition was good.

The horses were friendly and good to work around. [ 126 ] Constable Edge also seized Handsome, but did not have him euthanized. [ 127 ] Constable Edge left the Scotts with the five remaining horses (Hope, Mana, Chance, Apache and Jewel) because they “ did not qualify as being in distress at that time.” [ 128 ] Constable Edge called Ms. Scott in the evening of September 5, 2014 and informed her of the day’s events. Ms.

Scott was very upset to learn the BC SPCA had Rosie and Bella shot and buried at 5019 Browning Road. [ 129 ] On September 6, 2014, Constable Edge served the Scotts with a copy of the Warrant and Notice of Disposition. [ 130 ] On September 7, 2014, Ms. Scott telephoned Constable Edge and advised her she had fenced around the burnt house so that the horses couldn't access it and had picked up two garbage barrels of twine. Constable Edge says she was satisfied Ms.

Scott was immediately addressing the environmental concerns by picking up the binder twine, fencing off the burned and collapsed house and fixing the fence line where the horses escaped. [ 131 ] On September 10, 2014, Ms. Scott advised Constable Edge she had arranged for a farrier to attended the following Saturday, that she had concluded all the fencing around the old house, removed string from the pasture and was now using a feeder rather than from the ground.

She also told Constable Edge that Jenna was retrieving and relocating her two horses (Jewel and Chance). [ 132 ] Constable Edge did not return to 5019 Browning Road. [ 133 ] Mr. Scott died on October 19, 2014. At some point Ms. Scott’s house was rebuilt and she continues to reside on 5019 Browning Road with Hope, Mana and Apache. Information 26177-1 [ 134 ] On August 4, 2015, Constable Edge sworn Information 26177-1 charging Mr. and Ms. Scott separately on the two count information. When asked why Ms. Scott was charged from September 17, 2013 to September 5, 2014, and Mr.

Scott is only charged from August 31, 2014 to September 5, 2014, Constable Edge offered the following explanation: a. When she first attended 5019 Browning Road in September 2013, Constable Edge only dealt with Rosie and Handsome. She did not see Kelly and Bella had yet to be born; b. Constable Edge met Kelly and Bella for the first time on August 31, 2014; c. On August 31, 2014, Constable Edge learned Kelly and Bella belonged to Mr. Scott; d. On August 31, 2014, Constable Edge learned that Jewel and Chance belonged to Mr. Scott’s daughter, Jenna, who lived on Vancouver Island; e. Ms.

Scott fed and watered all the horses at 5019 Browning Road, notwithstanding who the belonged to; and

f. It was Ms. Scott who called Dr. Langan to examine Bella. [135] When asked again in cross-examination why Mr. Scott was not charged with any offence prior to August 31, 2014, while Ms.Scott was charged from September 17, 2013, Constable Edge said it was because August 31, 2014, was the first day she saw Kelly andBella in distress and because she was not aware Mr. Scott owned any horses prior to that date. She said: Well, Mr.

Scott . . . indicated to me when I spoke with him, which I believe is in the narrative, was that he had sold Kelly to Joe Kopetskiin exchange for some hay or something and then ended up getting the horse back, but no dates were given. I have no idea of when thatoccurred. Sometime while the horse was in Joe's care, because they had moved all the horses to Joe's when the property burnt down, themare got pregnant by one of Joe's stallions, is my understanding, and then the foal was born. [136] When asked when Mr. Scott resumed ownership of Kelly, Constable Edge said: Yes, I was aware, obviously, that Mr.

Scott took ownership of Kelly at some point in time when he took her back from Joe Kopetski. I donot know that date, so I was not able to share that in the narrative. That was confirmed by both Mr. Scott and Ms. Scott. So . . . I don'tknow regarding those dates. [137] What Constable Edge seem to be saying is that she did not know who owned Kelly (and hence Bella) prior to August 31, 2014.As of August 31, 2014, she knew Mr. Scott owned Kelly and Bella, Jenna owned Jewel and Chance, and that Ms. Scott assisted with thewatering and feeding of all the horses. Legislative Scheme [138] Ms.

Scott is charged with committing an offence under s. 24(1) that she allowed her horses to continue to be in distress under s.9.1, which states: 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 likelyto 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. [139] Section 1 (2) states that for the purposes of the PCA 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 conditions that are unsanitary, (a.2) not protected from excessive heat or cold, (

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

c) abused or neglected. [140]

Section 1 defines person responsible as follows: "person responsible", in relation to an animal, includes 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; [141]

Section 22.1 imposes upon a registered veterinarian, a duty to report distress to the BC SPCA. It reads: 22.1 A registered veterinarian who believes on reasonable grounds that a person responsible for an animal is, or is likely, causing orpermitting the animal to be in distress in contravention of this Act must promptly report, to the best of the registered veterinarian'sknowledge and belief, all of the following information to an authorized agent: (

a) the reason for believing that an animal is in distress; (

b) sufficient information to contact the person responsible for the animal, including the person's name and address; (

c) sufficient information to identify the animal. Statutory

Interpretation [142] The Court must interpret the PCA Act consistent with the applicable principles of statutory

interpretation in the regulatorycontext. In Bell Express Vu Limited Partnership v. Rex, 2002 SCC 42 , the Supreme Court of Canada held that a contextualapproach must be taken to statutory

interpretation of regulatory enactments. Courts are to consider the entire context of statutory wordsand phrases and read them in harmony with the object of the legislation. This relegates some other principles of construction to asubordinate or secondary role and the ‘strict construction of penal statutes’ rule is applied only where there is ambiguity as to themeaning of a provision (see Bell ExpressVu, para 28).

[143] The following passage from Driedger on the Construction of Statutes, 3rd ed. (1994) is often cited: An appropriate

interpretation is one that can be justified in terms of (

a) its plausibility, that is, its compliance with the legislative text (b)its efficacy, that is, its promotion of the legislative purpose and (

c) its acceptability, that is, the outcome is reasonable and just. [144] Also relevant is s. 8 of the

Interpretation Act, RSBC 1996, c 238, which states: Enactment remedial 8 Every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and

interpretation asbest ensures the attainment of its objects. [145] The PCA Act is a species of public welfare legislation designed to relieve distress in animals. The charge before the court is oneof strict liability and engages the principles espoused in R. v. City of Sault Ste. Marie, 1978 CanLII (SCC). In Sault Ste. Marie, theSupreme Court of Canada held there is a presumption at law that public welfare legislation creates strict liability offences. Once theCrown has proven beyond a reasonable doubt that the accused committed the wrongful act, the accused can avoid liability byestablishing a defence of due diligence on a balance of probabilities. [146]

Section 24.02(

c) of the PCA Act also sets out a defence to a charge before the court. It states: 24.02 A person must not be convicted of an offence under this Act in relation to an animal in distress if . . . (

c) the distress results from an activity that is carried out in accordance with reasonable and generally accepted practices of animalmanagement that apply to the activity in which the person is engaged, unless the person is an operator and those practices areinconsistent with prescribed standards. Neglect [147] The matter before the court is not considered a “true crime” but rather a regulatory offence. Still, if convicted, Ms. Scott couldface a fine not exceeding $75,000 or to a term of imprisonment not exceeding two years, or both: s. 24.1 PCA Act.

Consequently, thisoffence is quasi-criminal and as set out above, the Crown must prove all the elements of the offence beyond a reasonable doubt. [148] A thorny issue raised in this case is that of identity: Who is responsible for animals being in distress through neglect when therewere two people who shared some, but not all of the responsibilities for their care? In civil proceedings this would be dealt with by theapplication of the principle contributory negligence. [149] Criminal law does not concern itself with contributory negligence or the apportionment of blame. As stated by Watt J.A. in R. v.K.

L., 2009 ONCA 141 , at para. 18: The criminal law does not recognize contributory negligence nor is it equipped with any mechanism to apportion responsibility for theharm occasioned by criminal conduct, except as part of sentencing after the required standard of causation has been established: R. v.Nette, 2001 SCC 78 , [2001] 3 S.C.R.] at para. 4. [150] In R. v. Bavarsad, 2008 BCCA 137, the B.C.

Court of Appeal agreed with the Crown’s concession that “the concept of joint andseveral liabilities for criminal fines is a concept not known to criminal law.” The logic underpinning this principle has some relevance tothe situation in the case at bar. [151] In reaching my decision in this case, I have considered the legislation and jurisprudence set out above. I have also consideredhow negligence in the criminal law context requires the Crown to prove beyond a reasonable doubt the wrongful act was a significantcontributing cause of the harm done: R. v. Nette, 2001 SCC 78 , p. 71; R. v.

Maybin,2012 SCC 24 , para. 17. The BC SPCA [152] The British Columbia Society for the Prevention of Cruelty to Animals (BC SPCA) is a not-for-profit organization created underthe Prevention of Cruelty to Animals Act, R.S.B.C. 1996, c. 372 (the "PCA Act"). The PCA Act empowers the SPCA to investigateincidents of and enforce laws relating to animal cruelty and to recommend charges to Crown Counsel for the prosecution of individualswho inflict suffering on animals. Assessing Evidence: standard of proof [153] Ms.

Scott is charged with a quasi-criminal offence and the Crown must prove the essential elements of the offence for which sheis charged on the criminal standard of beyond a reasonable doubt, namely:

(1) Ms. Scott either owned or had custody and control of thehorse in issue; and (

b) the horse was in distress; and (

c) Ms. Scott either caused; or (

d) permitted the horse to continue to be in distress.The Crown does not assert Ms. Scott caused any horses to be in distress, only that she permitted them to continue to be in distress. [154] The criminal standard of proof applies only to the essential elements of the offence and trial judge’s final determination of guilt.In its fact-finding stage, the trial judge must weigh individual pieces of evidence on the lower civil standard of a balance of probabilities:R. v. Redford, 2014, ABCA 336, at para. 13-15; R. v. White, [1998] 2 SCR. 72, (SCC).

Assessing Credibility and Reliability [155] Although there are many points of agreement among the witnesses there are also points of disagreement and confusion. It is trite

law that a judge can accept all, some or none of a witnesses’ evidence. In order to evaluate the evidence, I must assess its credibility and reliability. [ 156 ] In order to assess the credibility of each witness, I have taken into consideration the following factors: (

a) the plausibility of their evidence; (

b) any independent supporting or contradicting evidence; (

c) the external consistency of the evidence; (

d) the internal consistency of the evidence, (

e) the ”balance” of the evidence, meaning the witnesses apparent willingness to be fair and forthright. [ 157 ] There are a number of challenges in assessing credibility in this case, including the fact the offence took place three to four years ago and all the witnesses are long term horse owners experienced in horse husbandry with their own views and opinions on the care and management of horses. The accused, Leialoha May Scott [ 158 ] I found Ms. Scott generally to be a credible and reliable witness, although there are some aspects of her testimony I do not accept.

Her narrative of events was internally consistent except where she became confused as to what happened on what day between August 12, 2014 and September 5, 2014. Of all the witnesses, Ms. Scott was the only one who had no legal or professional obligation to document her interactions with others; therefore, I do not find her confusion as to what was said and when it was said undermines the credibility or reliability of her evidence. [ 159 ] Where Ms. Scott’s credulity suffers is her insistence she had a farrier service the herd every six to eight weeks.

This assertion is inconsistent with the evidence of Constable Edge, Dr. Langan and Mr. MacNaughton and the photographs of horses’ hooves which comprise Exhibit 1. I accept that Mr. MacNaughton provided farrier services to the Scott herd every three months while they were boarded on Joe Kopetski’s farm between November 2013 and June of 2014. I accept that before the residence at 5019 Browning Road burned, the Scotts arranged farrier services for their horses as required.

I am not persuaded they had arranged for external farrier services in the two to three months prior to Constable Edge issuing the Notice of Distress. [ 160 ] Another aspect of Ms. Scott’s evidence I find difficult to accept was her insistence that providing veterinarian care for the horses, including the surgeries for Bella and Handsome, was not a financial hardship. In 2013 and 2014, Ms. Scott experienced a perfect storm of misfortune: a. Ms. Scott and her husband of many years separated; b. Ms. Scott assumed responsibility of and care for her four grandchildren, who were between the ages of five and nine; c.

Ms. Scott’s home at 5019 Browning Road burned to the ground; d. Ms. Scott was struggling with her insurer to remove the debris from her burned residence and rebuild; e. Although they had separated, the Scotts still shared the burden of watering and feeding the horses. In the summer of 2014, Mr. Scott became ill and on September 1, 2014, he was diagnosed with terminal cancer and died seven weeks later. [ 161 ] In the summer and fall of 2014, Ms. Scott was faced with an expensive surgery for Handsome and Mr. Scott for Bella. If money wasn’t an issue, I do not believe that Mr.

Scott would have agreed to euthanize Bella or that Ms. Scott would have surrendered Handsome to the BC SPCA. [ 162 ] I accept Ms. Scott’s evidence’s that she paid Dr. Langan market rate for antibiotics and anti-inflammatories. Although demeanour evidence can be deceiving, Ms. Scott looked visibly shocked at the suggestion that Dr. Langan would have given her a break on veterinarian medicines and services. She said she paid the price on the label. She also explained one of her cheque had not cleared because of a bank error and this was dealt with and Dr. Langan was paid. [ 163 ] Ms.

Scott’s account of how she cared for the horses, relying on a combination of homeopathic remedies, self-help and veterinary care is entirely plausible and I accept that this is in fact what she did. Her evidence in this regard is corroborated to some extent by Mr. MacNaughton who seems to take a similar approach to horse husbandry. Mr. Richard MacNaughton [ 164 ] Mr. MacNaughton’s evidence as an experienced farrier and someone knowledgeable of horse husbandry. I found his evidence credible, helpful, balanced and sensible. Dr. Ginger Langan [ 165 ] I have no concerns about Dr.

Langan’s skills and expertise as a veterinarian. She was not, however, a particularly good historian. For example: a. Dr. Langan testified that she attended at 5019 Browning Road on September 17, 2013, and again on August 12, 2014, at the request of the BC SPCA. This was not true. Her call was initiated and made by Ms. Scott on both occasions. Constable Edge met Ms. Scott and attended at 5019 Browning Road for the first time on September 17, 2013. In 2014, the BC SPCA first became involved with Ms. Scott on August 29; b. Dr.

Langan testified that on August 12, 2014, she concluded “Rosie needs to go to sleep” then later agreed that it was not until September 5, 2014, she reached her decision the horses should be euthanized; c. Dr. Langan did not know what date she attended at 5019 Browning Road and signed off on the BCSCA critical distress form. She assumed it was September 9, 2014, which was the date of her invoice;

d. Dr. Langan testified that when she first saw her on September 17, 2013, Rosie “had a history of being quite foundered, and she also had severe secondary sole abscesses, so she was not very mobile either because she is always laying from being foundered.” She did not explain why she believed Rosie was “always laying from being foundered” as this is contrary how Ms. Scott described Rosie’s mobility; and e. Dr. Langan said in her examination-in-chief that Ms. Scott was present at 5019 Browning Road on August 12, 2014 when she carried out her assessment of Bella.

She testified she was sure she would have talked to her about the state of the horses at that time. Ms. Scott was not at 5019 Browning Road on August 12, 2014, when Dr. Langan was present. Dr. Langan telephone Ms. Scott later and they only discussed Bella. In cross-examination Dr. Langan conceded she didn’t know who she was talking to at 5019 Browning Road on August 12, 2014. [ 166 ] There were other aspects of Dr. Langan’s evidence which gave me pause. For example, Dr.

Langan testified in examination-in- chief, she did not know in September 2013, if Rosie’s P3 had rotated because “we didn’t actually document that because you need to do it with an x-ray.” This comment caused me to wonder if Dr. Langan was at times reconstructing an opinion from what she gleaned from her examination of Rosie on September 5, 2014. [ 167 ] In a similar vein, it was not always clear to me what Dr. Langan specifically remembers telling Ms. Scott and what she supposes she might have said in the circumstances. One instance of this lack of clarity relates to Dr.

Langan’s evidence of what she said or might have said to Ms. Scott in the fall of 2013 about euthanatizing Rosie. [ 168 ] Whether it was intended or not, it struck me when formulating her opinions on the medical status of the Scott horses in 2014, Dr. Langan relies almost exclusively on her own clinical observation. It did not seem that Dr. Langan consulted with Ms. Scott prior to forming her opinions about the Scott horses. [ 169 ] Dr. Langan was not asked in cross-examination to opine on the efficacy of Ms. Scott’s various homeopathic and self-help remedies. Dr. Langan was asked examination-in-chief if Ms.

Scott told her in August 2014 about what she had done to care for the horses since she last saw her. Dr. Langan said, “No. I have a pretty sparse history here.” I do not know if Dr. Langan’s opinions on causation might change if she was aware of Ms. Scott’s efforts to care for her horses. Constable Edge [ 170 ] When Constable Edge became involved in the investigation of this matter she had been a Special Provincial Constable for the BC SPCA for six months. I accept Constable Edge was attempting to be truthful in her evidence and she was sincerely concerned about the Scott horses.

Nevertheless, I find the following aspects of her investigation of this matter and her evidence at trial troubling: a. On September 17, 2013, Constable Edge issued BC SPCA Order 016712, which I understand to be the precursor to the Notice of Distress BC SPCA adopted the following year. Constable Edge went to 5019 Browning Road on September 17, 2013, because she observed an emaciated looking bay mare and foal. At the time, Dr. Langan was on site at Ms. Scott’s request to address their condition. It is not clear to me why at that time Constable Edge deemed it necessary or appropriate to inspect Ms.

Scott’s premises and monitor her relationship with Dr. Langan; b. Constable Edge adopted a practice of “ticking off” orders on the preprinted order form indicating the animals needed potable drinking water and suitable food and clean food and water containers whether or not these were an actual concern. I would have assumed that before BC SPCA Constables makes a rehabilitative order they must have reasonable grounds to believe they are necessary; c. Constable Edge’s evidence as to whether Ms. Scott had complied with BC SPCA Order 016712 is inconsistent and confusing.

In her examination-in-chief on August 26, 2016, Constable Edge initially testified she believed her original order in September 2013 had been complied with based on her personal observations and discussions with Dr. Langan. Constable Edge’s later resiled from that position because when she saw her again on August 31, 2014, Rosie was underweight. Constable Edge seems to have overlooked the possibility that Rosie’ body condition might relate to the fact she was suffering from a progressive debilitating medical condition; d. I also found Constable Edge unfair in her evidence with respect in her assessment of Ms.

Scott’s efforts to care for Rosie and Handsome. This is manifest when cross-examined as to the reason Handsome and Rosie were underweight in September 2013: Q Would it surprise you that Dr. [Langan] has informed the Court that the reason why she was called was because Rosie was underweight? A No, it wouldn't surprise me. Q And, further, that it was not surprising that the colt was underweight, given the poor state of Rosie's health? A That's . . . fine. We often see foals that are actually in good condition because they take so much from mom, and mom has such a hard time keeping up. Q But Mrs.

Scott had actually called the vet . . . because of her concerns over Rosie? A Good. Q You're claiming that she neglected the horse? A Well, I would question why the horse got to such a state. It doesn't happen in a very short time. Q I bring you back to that question of feed. Was it not true that the hay crop in 2013 was extremely poor? A No.

Q Well, Dr. [Langan] differs with you on that. A That -- that's okay. Perhaps in the Quesnel area, but there are so many resources available to everyone regarding purchasing hay. I'm not sure the hay that Ms. Scott had at the time was very poor quality -- it was very evident it was poor quality, but there was good quality hay to be had because it was being brought in. [ 171 ] When she made these statements Constable Edge knew : (

a) Rosie was an elderly thoroughbred; (

b) thoroughbreds do not keep their weight on at the best of time and Rosie had just foaled out; (

c) Rosie had laminitis, foot abscesses and an infection; (

d) Ms. Scott had had obtained all the medicines prescribed by the veterinarian and administered to Rosie; (

e) Ms. Scott had sourced out and acquired different hay (

f) with the exception of Rosie and Kelly, none of the other horses in the Scott herd were underweight. It struck me that Constable Edge wanted to blame Ms. Scott for Rosie’s condition, no matter what its cause, be it medical or nutritional. She did not seem to give any credence to the fact that in 2013, Ms.

Scott did not know why Rosie was underweight which is why she contacted the veterinarian in the first place. [ 172 ] Another example of Constable Edge’s unwillingness to be even-handed is reflected in her responses to questions put to her in cross-examination about Rosie’s December 19, 2013, choking incident: Q So you would agree on December 19th, Mrs. Scott was continuing to provide the horse with food supplements? A Well, based on the description of this, it tells me that . . . she didn't know it within two days that this horse had been choking. Choke has a very serious effect.

So I'm very curious why it took two days to notice this problem. Q That didn't say that, . . . does it? A It does. She was fine -- Q Can you read it again? A -- two days ago. Q She was fine two days ago. A So what happened in two days? Was she not checking the horse on a daily basis and feeding it on a daily basis, as required by the vet? That would be my question. Q It doesn't indicate that she's choking two days ago? A [As read in]: She was fine two days ago and now has bilateral green nasal discharge with food particles coming out. A So the day prior, was she fine?

Two days ago, she was fine, but what about the day prior? So when did the choke begin? Q Constable Edge, was Mrs. Scott providing the horse with the food supplement . . . in mid- December? A Yes, she provided the food supplement. Q So she was complying with the instructions; correct? A I don't believe she was because of the two-day span. I don't believe she was getting it each day. Q Was she not [complying with] the instructions . . . to provide the mare with food supplements? A Yes, it was. Q So was she complying with that direction? A Yes, but it would have been on the daily basis. Q What's the date on this?

A December 19th, 2013. [ 173 ] When Constable Edge made these comments, she knew the Scott herd was being boarded at the Kopetski farm. There was no requirement that Ms. Scott personally attend to horses each and every day because Mr. Scott and/or Mr. Kopetski were also caring for the horses. Constable Edge simply refused to concede that Ms. Scott was complying with Dr. Langan’s instructions to give Rosie supplements. [ 174 ] I also found that Constable Edge seems to have leapt into action prematurely.

For example, she testified that on August 29, 2014, she was convinced the mare was in “a very grave situation and . . . needed to be relieved of her distress, whether that’s through euthanizing her or other means.” I understand the “mare” is in reference to Kelly. Constable Edge had never seen Kelly at that point, nor had she seen the Scott herd since the end of November 2013. Moreover, she told the brand Inspector and the RCMP that the Scott horses on August 29, 2014 were not in “critical distress.” [ 175 ] When asked about the horses left with Ms.

Scott notwithstanding the habitat hazards persisted, Constable Edge testified that at

the time of executing the warrant, the BC SPCA was focussing on the horses in critical distress and in distress. She said: We are mandated under our Act to be able to give Ms. Scott the opportunity to rectify any problems or deficiencies, which we allowed. Our initial investigation dealt with those three horses that were euthanized and the colt with the hernia, not the other four horses, other than hoof care. [ 176 ] The evidence showed Ms. Scott cooperated with Constable Edge at every juncture. She allowed her to inspect her horses without a fuss or a warrant.

Notwithstanding she had a client/patient relationship with Doctor Langan, Ms. Scott did not protest Constable Edge contacting Dr. Langan for updates on her horses. Ms. Scott reported to Constable Edge her progress in dealing with issues which Constable Edge identified as a concern. Ms. Scott agreed to have Mr. Scott euthanize Rosie and Bella, although she did not believe it necessary. She surrendered Handsome to the BC SPCA even though she felt bullied and did not believe Handsome was in critical need of the hernia surgery. Still, in cross-examination on January 12, 2017, Constable Edge said she recommended Ms.

Scott be charged with the offence before the court because: Ms. Scott has a history of failing to comply with directions and allowing her horses to remain in distress. . . . She allowed her animals to continue to b

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