R. v. Taylor, 2011 BCPC 527

Citation: R. v. Taylor 2011 BCPC 527 Date: 20110412 File No: 4085-1 Registry: Clearwater IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WAYNE THOMAS TAYLOR REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE H. ROHRMOSER Counsel for the Crown: T. Livingston Appearing on his own behalf: W. Taylor Place of Hearing: Clearwater , B.C. Date of Hearing: April 12, 2011 Date of Judgment: April 12, 2011

[ 1 ] THE COURT: We have heard two days of evidence in this matter over a couple of months. [ 2 ] Can I have a copy of the information, please? [ 3 ] Mr. Taylor is charged with two Criminal Code charges and one charge under the SPCA, the Prevention of Cruelty to Animals Act , for various alleged acts of animal cruelty between the 18th of December and the 21st of January, 2010. One of the animals in question was a chicken that Mr. Taylor had, with a condition called "bumble foot," and it was one of the reasons why the SPCA took action against Mr. Taylor and eventually charged him with animal cruelty.

This condition the chicken had can arise with chickens that have inadequate perches, and apparently that was the situation with this animal, as she was a house pet living inside Mr. Taylor's home much of the time. She was spared the fate of the rest of her cohort, that Mr. Taylor received from his friend, Mr. Hall, who gave him a half-dozen to a dozen other chickens many years ago with instructions to Mr. Taylor that he could eat them or feed them to his cats “or whatever.” [ 4 ] Mr. Taylor testified that because of Henny-Penny's exceptional personality he kept her for the last four years as a pet.

This was a mistake, as it turns out. If the chicken had shared the fate indicated for her roost mates, and she had been killed and eaten, there would not have been a problem, for this is the fate of chickens which are not pets. However, Mr. Taylor became very attached to her and could not bring himself to put her down, even after the animal got sick and he knew he should have. [ 5 ] Despite buying books and trying to educate himself on animal husbandry, he was unable to prevent the disease. It fell to the SPCA to kill the animal after they apprehended it and another animal from Mr. Taylor on December 18th, 2009.

Mr. Taylor willingly gave those animals up, recognizing their terminal condition. [ 6 ] At the time, the conditions in Mr. Taylor's house were very sub-par for any human occupant and not good for animals either.

There was, according to the evidence, clutter, filth, excrement on the floor, and an overpowering odour of ammonia from the urine- soaked floor. [ 7 ] The question that arises in this case is whether the combination of the number of animals and the conditions, all together, result in a sufficient degree of animal cruelty to attract Criminal Code or provincial statute sanctions. [ 8 ] The two animals that were given up on December 18th were a modest contingent of the large number eventually seized under a warrant on January 21, 2010, following a period of grace of about a month, during which the SPCA deemed it appropriate to allow Mr.

Taylor an opportunity to remedy the situation from what it was on December 18, 2009. When the SPCA came back on January 21 and the situation had not improved enough, all of the animals were seized and charges were laid. [ 9 ] It was never suggested by the Crown that Mr. Taylor did not care deeply for the animals, on an emotional level, or that there was ever any deliberate intention on his part to be cruel to any of them. His motives were rather the reverse.

He got a reputation in the community for taking in stray animals of all types, and people started dumping them on his doorstep, often in terribly abused condition. Mr. Taylor found it impossible to ignore these creatures. He undertook their salvation even when he did not always have the resources or knowledge to give them proper care.

He did the best he could, given his limited financial circumstances and his very poor health. [ 10 ] He is now 63 and suffering from a number of serious ailments including, apparently, heart failure, as a result of which he was taking nitro-glycerine pills throughout the trial, which he persisted in continuing with against his doctor's orders because it meant a lot to him to have it resolved, he said, before he died. [ 11 ] Mr. Taylor spent much of his meagre income toward these animals.

Kittens that were half-dead and dropped on his porch in plastic bags, he would spend weeks nursing back to life with an eyedropper and with a special formula that he claimed is superior to anything the veterinarians had. The success rate, he said, was superior to theirs too. Dogs that had been beaten, he took into his care and kept and re-trained, refusing to give up on them even though one was worryingly aggressive. Him, too, Mr. Taylor brought around to the point that strangers were safe around him so long as Mr. Taylor approved of them. This dog, Mr.

Taylor's sister explained, was handy to have around the property with drug dealers living next door. The dog kept the foot traffic to and from the neighbour's in check. [ 12 ] The exact number of animals Mr. Taylor had at any given time was in dispute, but there is no doubt that, though the numbers fluctuated, they were unusually large, especially for a structure the size of his home, which, by the photographs, was of modest dimensions. [ 13 ] Mr. Taylor was zealously self-instructed when it came to teaching himself all about the care of animals.

He pointed to several books on the subject among his files, and his devotion has somewhat deep religious or philosophical grounding. He explained that he was of the Buddhist faith, believing in reincarnation, and that animals deserve the highest respect, given that they might have been people or might come back as such, and that it behooves us to treat them well. [ 14 ] Mr. Taylor has had discussions with the SPCA about his predilection for keeping too many animals. He has asked them for help.

He explained that he simply cannot give up on these abandoned creatures or "let nature take its course" with them, even as they clutter his yard, foraging and looking for shelter. His mission in life is to rescue these creatures, which are in varying states of suffering when abandoned, and he is proud of having placed over the years two to three hundred of them in decent homes. [ 15 ] Though the SPCA officer, Mr. Kokoska, was not eager to admit it when confronted with whether he told Mr. Taylor that he should let the animals die, I think that is what happened. He advised Mr.

Taylor to let “nature take its course,” meaning let them die. [ 16 ] Mr. Taylor finds it a trifle ironic that had he simply let them starve or be killed by dogs in and around his property, he would not have been charged, but because he tried his best not to allow that to happen, he is facing criminal charges. [ 17 ] The key issue with respect to the first count under s. 445.1(1) of the Criminal Code is whether Mr. Taylor "wilfully caused" or

"permitted" unnecessary pain, suffering, or injury to animals and a bird. For the purposes of this case, I will consider a bird an animal. [18] With respect to this charge, the key elements on which to focus are the words wilfully and unnecessary. Similarly, the keyelements on the second count under s. 446(1)(

b) are again wilful neglect or failure to provide "suitable and adequate food, water, shelterand care." [19] These are very broadly worded sections, potentially encompassing a very wide range of behaviours, as a discussion of the caselaw will make clear. [20] The mens rea component of the third count is different. hat charge is under s. 24(1) of the Prevention of Cruelty to Animals Act,being the provincial statute of strict liability.

It requires proof only of the actus reus to found a conviction unless the defendant can showdue diligence. [21] The Crown says that the Kienapple principle applies with respect to Counts 2 and 3 and concedes that, probably also, on the factsof this case, it could apply with respect to Counts 1 and 2 as well, insofar as all the factual and legal elements of Count 2 could besubsumed into Count 1. [22] There is no doubt that an analysis of the case suggests that the Crown has proven Count Number 3. Why that is so shouldbecome evident on an analysis of the Criminal Code charges.

Whether the Crown has succeeded on the standard of proof beyond areasonable doubt on Counts Number 1 and 2 will depend to some extent on a reading of the authorities interpreting those Criminal Codesections and an application of the principles that emerge from these cases to the facts as I find them in this case. [23] If authority is needed for the proposition that a charge under the Prevention of Cruelty to Animals Act is a strict liability offence,Count 3 in this case, it can be found at paragraph 21 and following of the Supreme Court decision in R. v. Ryan, [2004] B.C.J.

No. 1940.The proposition is not in dispute. Otherwise, that appellate decision dealt with a myriad of issues having to do with an exceptionallydifficult litigant. The case offers no instructive analysis on how the question of due diligence might be analyzed in light of certain facts,or any guidance on the Criminal Code charges. Its applicability to this case goes only as far as providing authority for the narrowproposition cited above. [24] R. v. Hughes, [2008] B.C.J. No. 973, serves as a useful guide to the

interpretation of the meaning of wilful, in Count 1 in thiscase, though it was decided on a completely different set of facts that are quite easily distinguishable.

It was an appeal from an acquittalof an accused who crushed a cat under a couch, broke its neck, then microwaved it, supposedly to end its suffering, finally tossing it athis partner, at which point the cat died. [25] As the appeal court noted, with that evidence plus the past statements of the accused that he hated cats, and then when the catwas out of the microwave, where it had been weighted down and was convulsing and screaming, he threw it at his partner, this wasstrong evidence not only of the degree of suffering of the animal and the subjective foreseeability of that suffering, but that this evidencewent well beyond the objective standard of reasonable foreseeability required by s. 446. [26] The undisputed principle that emerges from that case, that is to be applied to the Criminal Code charges here, is that where theCrown proves beyond a reasonable doubt objective foreseeability of the consequences of the actus reus, if these consequences areunnecessary suffering, injury, or neglect, the case is made out. [27] This mens rea element can be proven by reasonable inference from the accused's actions, or through the doctrines of wilfulblindness or recklessness.

Insofar as the Hughes decision cited with approval the passage from the Provincial Court decision in R. v.Clarke, that the reasonably foreseeable consequence relate to the provision of inadequate food, water, shelter, and care for the animal, itcan be taken that the objectively reasonable foreseeability test applies to both Counts 1 and 2 of the information in this case. [28] To an extent, the accused's defence is that he was overwhelmed with personal circumstances that interfered with his ability toprovide suitable care. The Crown relies on R. v. Ryder, [1997] O.J.

No. 6361, as some authority for the proposition that being unable toafford veterinarian care and, by extension, adequate care of animals in other respects, was not a defence to wilfully neglecting and toproviding suitable and adequate care. That conclusion is obviously tied closely to the facts of that case, which dealt with 14 starving,emaciated, wormy horses living in filth. Three of them were dead.

It was an important part of the evidence in that case, that once thehorses were removed and given proper healthcare and nutrition, they started blossoming as they consumed incredible amounts of feed.That last point has to be kept in mind in this case. [29] The judge said in Ryder that if one cannot afford to physically look after the animals, there is an obligation under law to givethem up. The Ryder case makes reference to R. v.

Heynan from the Alberta Provincial Court, (AB CJ), [1992] A.J.No. 1181, in which, apparently, the accused was acquitted of starving his horses when he left them in a wintering ground where hethought there would be sufficient feed for them to forage over the winter, but there was not, because it was an unusually severe winter.The court accepted that he had done something, that is, checked on them from a distance periodically, and that his belief that they werefine, though incredibly naïve, afforded him a defence that was not available to Mr.

Ryder, who saw them on a regular basis and saw thatthey were dying in front of him. [30] The Ryder case does not specifically deal with the objective foreseeability test. Both Ryder and Heynan, which I have referredmyself to, appear to interpret wilfully in more subjective terms than the concept was treated by the B.C. Supreme Court later in theHughes decision. It is worth noting, though, that in Heynan, the court did base its decision to acquit on the immediate steps Mr.

Heynantook to remedy the situation and the veterinarian's experience of dealing with a large number of dead horses and cattle, saying: While this large incidence of animal neglect has no bearing on the culpability of any one accused, it does indicate that the kind oferroneous beliefs which Mr. Heynan says he held are not uncommon. It was also noted in that case that the horses were integral to the accused's business, and their loss would result in financial deprivation tohim.

[ 31 ] Accepting that neither the Hughes nor the Ryder case deals very specifically with the objective foreseeability test, which is the one that must be applied, the Heynan test does invite a consideration of whether certain subjective elements are to be factored into the objective foreseeability test at all. One could reduce the subjective elements in Heynan to these three points, which are absent in Hughes, but which also come up in this case: 1. The animals meant something to the accused. 2. The accused did not want them to die. 3.

As soon as the authorities brought the unacceptable living condition of the animals to the attention of the accused, he undertook remedial actions to ameliorate their plight. [ 32 ] If these considerations are not to be completely disregarded, then this case has something in common with, as I say, the Heynan case more than the Hughes case, which is quite clearly found to be a case of very wilful and deliberate infliction of egregious suffering.

Such considerations must be weighed in evaluating the evidence of wilfulness and causation of any suffering found to have occurred. [ 33 ] In finding the facts, I accept the evidence of the two veterinarians who testified, and most of what Special Constable Kokoska said. Acting on a complaint, the SPCA attended the residence of the accused on December 1, 2009, and left a notice on his door. They returned on December 18, 2009, this time issuing an “Order,” so-called, for Mr.

Taylor to rectify conditions within 14 days, and they seized the two animals I mentioned were in bad shape, on December 18. [ 34 ] The chicken that I have referred to was severely underweight with a severe leg infection that prevented it from bending its leg. It was very skinny, covered in lice, and depressed, according to the vet. It took months to get this bad. The photographs leave no doubt that an untrained person could clearly see that there was something very wrong with its bowed leg with a crust covering the entire length of the leg.

The pictures verify the extremely poor condition of the bird when it was seized. I reject the defence evidence suggesting that it deteriorated to this stage while it was in the SPCA care. [ 35 ] The second animal was a six to eight-month-old cat covered in diarrhea with a distended abdomen and a readily observable discharge coming from its eye. It was suffering from roundworms and sneezing excessively from an upper respiratory viral infection. The cat ate voraciously as soon as it was provided with food at the SPCA. That Mr.

Taylor named this cat “Stinky Butt” suggests that he must have been aware of its diarrhetic condition. [ 36 ] The evidence of Special Constable Kokoska is that, in total, on December 18, there were about 11 cats and seven dogs in the house, which he described as a smaller, older bungalow; a very dirty, filthy place with an overpowering odour of ammonia, made worse by the humidity. One of the cats had an open injury. The photos verify the degraded state of these quarters with fecal matter on the floor in all the rooms, more in some than others. The general level of uncleanliness was extreme.

I have no difficulty accepting that this was an extremely poor living environment for any person or animal and an obvious health hazard to both. [ 37 ] Dr. Matthews said that all of the animals were in distress. There was food put out throughout the house, a lot of it scattered on the floor and mixed with animal feces and urine, which was conducive to the spread of disease. The animals had fleas. The cats had ear mites. The ocular discharge that three cats had were highly contagious. More cats were on the way into this highly unsanitary environment with some cats being pregnant.

There were kittens who had developed similar problems. It is significant that Dr. Matthews, who attended the house at the re-inspection on January 21, 2010, reported those conditions then, after Mr. Taylor had been given a chance to rectify the conditions set out in the order issued December 18, 2009, which described what the SPCA wished that he do with the place. [ 38 ] It should be noted that Special Constable Kokoska attended for the re-inspect on January 19, 2010, but was denied entry by Mr. Taylor, even though he knew that there would be a re-inspection 14 days after the initial one.

In fact, it was closer to a month, allowing Mr. Taylor more time than he initially was told he had to set things right. [ 39 ] Under the authority of a search warrant, then, entry was made on January 21. Videos were shot but not entered by the first prosecutor in the case. The photographic evidence of that sort would have been useful, but not essential to gauge what changes or improvements in sanitation and living conditions had come about since the first inspection. There were some.

There had been significant removal of dirt and filth from the floors and walls, though there was still some in the kitchen and laundry room with feces in that area, and there was a bathroom area that had plumbing problems, essentially unchanged from the first inspection with a layer of dirt and feces on the floor. The ammonia smell had subsided but was still there. [ 40 ] On that date, all of the animals were seized and removed to an animal hospital in Kamloops.

Five cats and one dog were euthanized which is, in itself, proof that they were in severe distress, because the primary response of the SPCA was to rehabilitate them, if possible, which they did for the rest, including two dogs which they eventually returned to Mr. Taylor. [ 41 ] It is to be noted that by February 2010 Mr. Kokoska did another inspection and found the premises much improved. That is surely due in large measure to the fact that there were not some 16 or so animals and a bird in the residence, since they had all been taken away. [ 42 ] Mr.

Taylor had an opportunity to surrender the animals to the SPCA on December 18, but he only gave up the two in worst shape and agreed to bring about the remedial work set out in the order. [ 43 ] I question this so-called “Order” because I was not able to find any authority in the SPCA Act for such orders to be made, but it clearly states it is an order on the top of it. It warned of failure to comply could result in legal action, whatever that means, including seizure of animals and/or charges under the Criminal Code or Prevention of Cruelty to Animals Act . [ 44 ] Mr.

Taylor's health and financial difficulties which impeded his achieving the remedial work in the order were not emergency factors but of longer duration, and were factors that he could not control. They ought to have resulted in his giving up the animals

straight away. [ 45 ] The broken waterline might have been an unanticipated factor and may have compounded his problems, but even with that, he did not help his case or forestall the inevitable very much by refusing entry to the SPCA on January 19th. He admitted in cross- examination knowing for certain by December that the animals were in an unhealthy condition. Giving a cat his own antibiotics, though perhaps well-intentioned, is not a reasonable measure.

It may have worked, but it was mere experimentation, and he undertook it because the cat was showing symptoms in 2009 of being quite sick, to his knowledge. [ 46 ] Mr. Taylor realized that through December 2009 and January 2010 that the place was unhealthy for animals, not to mention himself. He said he did not know he had too many animals because there is no such thing as too many animals as long as you can feed and nurture them, and by that he meant provide them with loving care. It is clear that they got the love but not the care, and I have to disagree that he did not know that there were too many animals.

It is simply too obvious that there were far too many to care for, and that they were not receiving proper care despite being fed and that they were, some of them very obviously, in distress. They were not all in the same condition. [ 47 ] Mr. Taylor has his supporters, and some of them testified on his behalf. They were not disinterested witnesses. The intimation arising from the testimony of some of the defence witnesses, as I said, is that the decline in the health of the animals occurred once the SPCA took them over, and that they were in good shape while in Mr. Taylor's care.

I do not accept that in the face of the overwhelming evidence to the contrary. [ 48 ] I do accept that Mr. Taylor has rehabilitated many animals over the years, and that there is an issue as to whether it can be said that he caused them suffering when, in many instances, he may have ameliorated it through the care he was able to provide.

There could be situations where his subjective good intentions coupled with his actions might raise a reasonable doubt about whether he caused the suffering or whether he diminished it, compared to the original condition of the animals, the stray animals, when they came to him. [ 49 ] But that is not the case here, where the focus is not on the decades of his involvement with the animals but on the month or so between December 18 th , when he had fair notice that they were in distress and therefore suffering, and January 21st when their condition failed to improve to such an extent that in the opinion of the veterinarian at the time these animals were still neglected and in distress, and not marginally so. [ 50 ] As a result, given the objective standard of reasonable foreseeability imported into the concept of wilfully, as set out in R. v.

Hughes , the Crown has presented proof beyond a reasonable doubt on all three charges, but applying the principles of Kienapple as discussed above, I only intend to record a conviction on Count 1 and enter judicial stays on the other two. (REASONS CONCLUDED)