Her Majesty the Queen - v. -, 2014 SKPC 193

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 193 Date: December 5, 2014 Information: 7568951 & 24402630 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Murray Andres Appearing: Andrew Wyatt For the Crown self For the Accused JUDGMENT R. GREEN , J I. INTRODUCTION [ 1 ] On February 8, 2012, the home and yard of Murray Andres, in MacNutt, and his farm property just outside of MacNutt, were searched by animal protection officers employed by the Saskatchewan Society for the Prevention of Cruelty to Animals (SSPCA).

These officers had a search warrant, and were accompanied by two police officers from the Esterhazy RCMP. After entering onto the properties, the animal protection officers contacted Dr. Anique McCrae-Spence, a veterinarian in Yorkton, and asked her to attend to these properties. Dr. McCrae-Spence did so, and following her examination of animals at both locations - dogs, horses and cattle - one cow was euthanised and a number of dogs were seized.

[2] As a result of these events, Mr. Andres is charged: (1) under s. 4(2) of The Animal Protection Act of Saskatchewan, with, being a person responsible for an animal, causing or permittingthe animal to be, or to continue to be, in distress; and (2) under subsection 446(1)(

b) of the Criminal Code, with, being the owner or the person having the custody or control of animals(cattle, horses and dogs), wilfully neglecting or failing to provide suitable and adequate food, water, shelter and care for the animals. [3] The evidence on both charges was heard together in one trial. In my previous decision (2014 SKPC 75 , 2014SKPC 075), I determined that the search warrant was lawful and, further, that Mr. Andres was not arbitrarily detained by the police onthat day. As a result, I dismissed his application under s. 24(2) of the Charter of Rights and Freedoms. [4] In his Charter Notice, Mr.

Andres, as well, challenged the constitutional validity of sections 2, 4, 5(1), 6 and 12 of TheAnimal Protection Act, pursuant to s. 52 of the Constitution Act and s. 24(1) of the Charter. I will consider that issue first, and thenwhether the two charges - one a strict liability provincial offence and the other a criminal offence - have been proved as required. II.

THE CONSTITUTIONAL VALIDITY OF SECTIONS OF THE ANIMAL PROTECTION ACT [5] As a Provincial Court judge, I am only able to consider the constitutional validity of the sections necessary for me to interpret or apply the law which is relevant to the issues in this case.[1] I view the definition of “distress” in s. 2 and s. 4, in its entirety, asthe sections I must interpret to determine whether Mr. Andres is guilty or not guilty of an offence under s. 4. [6] Regarding the other sections listed by Mr.

Andres in his notice: (1) s. 5(1) authorizes an animal protection officer to enter apremises without a warrant in certain circumstances (in this case the search was done with a warrant); (2) s. 6 authorizes an animalprotection officer to relieve an animal found to be in distress; and (3) s. 12 sets out the liability of a person who is responsible for ananimal for expenses related to the seizure and possible destruction of the animal by the humane society. Taken together, I do not acceptthat it is necessary for me to interpret ss. 5(1), 6 or 12 to make the decision on Mr.

Andres’ guilt which I am required to, and as a result Iwill not consider the constitutional validity of these sections. [7] Regarding s. 2 of the Act, Mr. Andres argues that the definition of “distress” is vague and overbroad, and that as a result theoffence created under s. 4 is similarly vague and overbroad. In effect, he argues the definition of “distress” does not provide: (1) noticeof minimally acceptable standards of care and treatment for animals; or (2) sufficient direction to those enforcing the law to preventarbitrary exercise of their discretion.

He argues that the definition of “distress” in s. 2 and s. 4 in its entirety are unconstitutional, as theyviolate s. 7 of the Charter of Rights and Freedoms, which guarantees the right to life, liberty and security of the person and the right notto be deprived thereof except in accordance with the principles of fundamental justice. For the reasons that follow I disagree. [8] Subsections 2(2) and 2(3) of the Act define “distress” as follows:

(2) Subject to subsection (3), for the purposes of this Part, an animal is in distress if it is: (

a) deprived of adequate food, water, care or shelter; (

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

c) abused or neglected.

(3) An animal is not considered to be in distress if it is handled: (

a) in a manner consistent with a standard or code of conduct, criteria, practice or procedure that is prescribed as acceptable; or (

b) in accordance with generally accepted practices of animal management. [ 9 ]

Part II of The Animal Protection Regulations, 2000 , deals with animals in distress. While ss. 4 - 12 of this Part deal with: (1) the approval of, and records to be kept by, humane societies; (2) the appointment and tenure of animal protection officers; (3) the form of search warrant applications and warrants; and (4) the procedures to be followed for the sale of detained animals, the most significant

section to the issue I am now considering is s. 3. That section, taken together with

Part II of the Appendix to the Regulations , establishes that the standards or codes of conduct, criteria, practices or procedures set out in the Appendix are acceptable for determining whether an animal is in distress.

The Appendix refers to seventeen codes - variously described as codes, manuals, guides and guidelines - for the care and handling of a variety of animals, including cattle, horses, pigs, dogs, farmed deer and farmed foxes. [ 10 ] The Saskatchewan Court of Appeal, in R v Spindloe [2] [ Spindloe ], set out the legal standard I am to apply in determining the constitutional validity of s. 2 and 4 of the Act . In Spindloe , the accused challenged the validity of s. 462.2 of the Criminal Code , on the same basis asserted by Mr.

Andres, that it was unconstitutionally vague and overbroad. [ 11 ] Justice Jackson, in referring to the standard set by the Supreme Court of Canada [3] on such an application, stated that it is only required that the law give “sufficient guidance for legal debate”. [4] Then, in the context of Mr. Spindloe’s application, she said: There is sufficient content to permit a court, in its interpretive role, to define and restrict the application of the section.

It thereby meets the dual requirement, basic to any law creating an offence, namely giving fair notice to the citizen of the prohibited conduct and limiting law enforcement discretion. [5] [ 12 ] In R v Andres - another prosecution of Mr.

Andres which includes the same charges now before me but with an earlier offence date alleged - Judge Chow (as he then was) considered the same argument about the constitutional validity of the definition of “distress” in s. 2 of this Act . [6] He determined, without hesitation, that the definition of “distress” provided “sufficient guidance for legal debate”, and dismissed the application. I agree with his conclusion. [ 13 ] In my view, the definition of “distress” in ss. 2(2) and 2(3) of The Animal Protection Act , as incorporated into the offence created in s. 4 of the Act , provides ample guidance.

These subsections, taken in conjunction with s. 3 of

Part II of The Animal Protection Regulations, 2000 , without question provide “sufficient guidance for legal debate” on whether or not an animal is in distress. I am further satisfied that these provisions: (1) have sufficient content to permit me to define and restrict their application; and (2) meet the dual requirements of giving fair notice to the citizens of the prohibited conduct and limiting law enforcement discretion. [ 14 ] This application is dismissed. III. THE ANIMAL PROTECTION ACT CHARGE (s. 4(2)) [ 15 ] This charge is a strict liability offence.

As a result, the Crown must prove beyond a reasonable doubt that an animal, or some or all of the animals, which Mr. Andres was responsible for that day were in distress. If this is proved, Mr. Andres must establish on a balance of probabilities that he took reasonable care to prevent this from happening. [7] [ 16 ] The witnesses called by the Crown were:

(1) Animal Protection Officer Jaclyn Hofseth;

(2) Animal Protection Officer Kaley

Pugh, who is also Manager of Animal Protection Services for the SSPCA; (3) veterinarian Dr. Anique McCrae-Spence; and

(4) Cst. Matthew Eddy, the informant on these charges. The defence called two veterinarians as witnesses: Dr. Christine Smetschka and Dr. Diana Durling, each of whom examined dogs seized from Mr. Andres by the SSPCA. The defence, as well, called as witnesses:

(1) Cpl. Kenneth McLaughlin;

(2) Neal Hudy, a truck driver who dropped cattle off to Mr. Andres’ farm; and

(3) Grant Pope, a friend of Mr. Andres who attended to his residence around the relevant date. [ 17 ] Mr. Andres did not testify. I repeatedly advised him of his right to do so, and that, once the evidence was concluded, any argument would only be based on the witnesses and evidence heard by me at the trial. I am satisfied he understood my explanations on this. Despite that, the written argument he filed, in a number of places, contained information which did not refer to the evidence heard, but appeared to be evidence in itself.

When I raised this with him in the oral argument, he maintained he understood what I had said, and that what he had written was only an argument based on the evidence received from all the witnesses. To be clear, this decision will be based only on the evidence received from the Crown and defence witnesses, and any exhibits tendered through those witnesses. The exception to this is the Mush With P.R.I.D.E. Sled Dog Care Guidelines , which Mr. Andres filed in argument.

These are deemed, under The Animal Protection Regulations, 2000 , to be an acceptable code of conduct, criteria, practices or procedures for determining whether an animal is not in distress under s. 2(3)(

a) of the Act and were properly put before me. [ 18 ] Regarding the Crown witnesses, I will outline the relevant evidence received from Kaley Pugh and Dr. McCrae-Spence. The evidence of Jaclyn Hofseth, the informant in obtaining the search warrant, dealt primarily with the basis of the warrant, and was detailed in my previous decision. As well, the evidence of Cst. Eddy dealt primarily with the issue raised by Mr. Andres of arbitrary detention, and was dealt with in my previous decision. I will then outline the relevant evidence received from the defence witness, with the exception of Cpl.

McLaughlin who I do not find gave any relevant evidence on the issues in this trial. Kaley Pugh [ 19 ] Ms. Pugh was present at Mr. Andres’ properties on February 8, 2012, and presented her evidence with the assistance of a detailed case report she had written (Exhibit P-6) and video clips she took that day (Exhibit P-8, and as summarised in a report which is Exhibit P-7). She as well took pictures that day and the next day (February 9, 2012) at the Saskatoon SPCA (these pictures are included in Exhibit P-4).

Having viewed the video clips that were played in Court (clips numbered 1, 2, 5, 6, 7, 8, 9, 10, 13, 14, 15, 16, 17, 22 and 26) and after viewing the photographs taken, I am satisfied that the best evidence of her observations is her detailed case report, which cross-references the videos and pictures. [ 20 ] When she arrived at 11:00 a.m., there were several vehicles parked in front of his house, and a pile of meat scraps laying in the snow.

A large black great dane was loose on the premises, and she observed a dog box in the front yard with no insulation and no bedding, a pile and two buckets of meat scraps, and a coyote carcass. Mr. Andres was not home. Six greyhound-cross dogs and a Borzoi were tied to plywood doghouses or fence posts near the doghouses. These doghouses were not insulated and had no doors. They only contained a small amount of shavings or straw, although two of the dogs had no bedding in their houses.

There was no water available for the dogs, and a large number of bones strewn about the yard - some with meat and some old and bare - and there were at least three cow heads scattered about as well. The Body Condition Score (BSC) of the dogs in the yard ranged in her opinion from 1.5 out of 5 to 2.5 out of 5 (1.5 - 2.5 / 5), and many of them appeared to be shivering in the cold. [ 21 ] Mr. Andres soon arrived. He claimed that the animals were neither cold nor thirsty. He attempted to demonstrate that the dogs were not thirsty by providing water in a pot to one of the dogs, and the dog drank readily when Mr.

Andres moved away from her. He offered the water to the other dogs and they drank too. He attempted to demonstrate that the dogs were not hungry by feeding a black dog. The dog ate enthusiastically until Mr. Andres moved her away. [ 22 ] Ms. Pugh soon discovered that there was a greyhound dog in the box in the back of Mr. Andres’ pickup truck; shivering in an uninsulated box. There was only dirt in the bottom of the box and no water available for the dog. Once the dog was released, she observed that he was quite thin and had numerous scars on his muzzle. [ 23 ] Ms. Pugh then went to Mr.

Andres’ farm property, and saw several horses in paddocks and a pasture from the road. She found a Mastiff type dog tied to an uninsulated doghouse with no water. There were two other dogs at large on the premises, and numerous empty doghouses with indications of recent use shown by the trampled snow in the surrounding areas. She, as well, observed a herd of horses from her truck. They appeared to be in adequate condition from a distance, and there appeared to be hay for them. These horses were not examined closely as there was an aggressive llama in the pasture.

She next entered a paddock that contained several horses and

cattle. Minimal feed was present, with only a few remnants of coarse hay, and the only water source appeared to be trampled dirty snow. A brown horse was found to have an untreated wound on its right hind leg. A majority of the animals appeared to be in adequate condition. [ 24 ] Ms. Pugh discovered two cows that were in very poor condition. One red and white cow was very thin and had a problem with her left eye. A large tan cow was severely emaciated (BCS less than one out of five), with a severe wound/infection where her right eye should be. Dr.

McCrae-Spence subsequently authorized the euthanasia of the cow with the eye injury and she (Ms. Pugh) euthanised the cow with a 12 gauge shotgun slug. There was as well a roan horse with an untreated injury, and a red cow with a lump on her jaw. Ms. Pugh soon discovered six puppies in an old barn. They were thin, potbellied and living on a soiled dirt floor.

There were some old bones for food, and there was a bowl of snow for water. [ 25 ] Two horses were found confined to a horse trailer with no feed or water, and it appeared to her that they had been there for some time as the snow around the trailer was not disturbed. Two more horses were found in a small paddock, with some access to feed that was outside of their fence and only snow for water. [ 26 ] Shortly after 3:00 p.m., she prepared instructions to Mr.

Andres for the care of the livestock, including that the horses must be released from the trailer, and that the horses and cattle with injuries must be treated. She then departed the farm property with the two adult dogs and six puppies that had been seized. She returned to the MacNutt property, and noted several dogs running at large that had not been on the property previously. She discussed the seizure with Mr. Andres, as well as the euthanasia of the cow and the care requirements for the livestock. Mr. Andres acknowledged that there were a few cattle with eye issues that he had not treated. [ 27 ] Ms.

Pugh and Ms. Hofseth then transported the dogs to the Yorkton SPCA: with eleven adult dogs in her van, and six puppies and the Mastiff dog in Ms. Hofseth’s truck. At 5:42 p.m., she arrived in Yorkton, and waited arrival of the staff from the Regina Humane Society who were going to house five dogs and the puppies. On February 9, 2012, she learned from the Regina Humane Society that a veterinarian had diagnosed one of the puppies with parvovirus, and five dogs and the puppies were transferred to the Saskatoon SPCA.

At 8:45 p.m. on that day, she directed that that puppy, who was extremely lethargic at this time, be euthanised humanely under s. 6(3) (

b) of The Animal Protection Act as it was in distress. [ 28 ] In

summary, Ms. Pugh believed that the dogs at Mr. Andres’ property were not receiving good care; their shelter was not adequate given the type of dogs involved, nor was water available and the food that was there was not sanitary. As well, some of the dogs had injuries to their toes and tails. She admitted that there were different standards applied to the care of dogs, but maintained that adequate food, shelter and care is necessary, especially considering the types of dogs involved. Here the greyhounds had short coats and required insulated structures to protect them, and this was not present.

Regarding the horses, she noted a lack of accessible water and feed, and did observe one horse with an injured leg that was untreated. Regarding the cattle, she said there was a lack of water, that any snow that they could consume was not clean. As well there was insufficient feed and noted two cows with eye problems and one with a problem on its jaw. [ 29 ] Ms. Pugh said that a file for Mr. Andres had been opened in January of 2010. She said that the SSPCA had worked with him over the next two years and had given him warnings about what conditions had to be changed for his livestock and dogs.

Regarding her observations on February 8, 2012, she was satisfied that only minor changes had been made by Mr. Andres which were not satisfactory. [ 30 ] On cross-examination, she admitted that her major concern for the dogs was a lack of shelter for them. She maintained that she could tell the difference between a dog shivering and one trembling. When shown a picture of a water bowl at the farm (Exhibit D- 1), she said she did not see this. Further, she admitted that the scoring system for body condition is subjective. Dr. McCrae-Spence [ 31 ] Dr.

McCrae-Spence is a doctor of veterinary medicine, and became so in 2011. She was qualified as an expert and allowed to give opinion evidence in: (1) the assessment and treatment of the medical condition of animals; and (2) the adequate food, shelter and water requirements of animals.

[ 32 ] Dr. McCrae-Spence was called to Mr. Andres’ property this day by an animal protection officer. Her observations, investigations and evaluations were detailed in a written report filed as Exhibit P-9. Her report refers to a number of pictures taken that day, contained in Exhibit P-4. Clearly, given the passage of time, her written report is the best evidence of her observations, investigations and evaluations done that day. [ 33 ] The report indicates that she attended to the premises at a time where the temperature was minus 10 degrees Celsius and the day was sunny, with the ground snow covered.

She said Mr. Andres’ property in MacNutt had multiple vehicles on it, with debris and old machinery and appliances littering the entire premises. There was a vehicle with a plywood kennel in the box of a truck with two dogs in it. Canine faeces were not being disposed of and this was accumulating near the dog shelters. There were two garbage bins of frozen bone pieces with scant amounts of meat on them. [ 34 ] At the town location, she evaluated eight dogs, seven of which are pictured in Exhibit P-4.

Each had a plywood doghouse without insulation, although some had varied amounts of straw and one had wood shavings. None had fresh water available. Her

summary of these dogs was:

(1) Female, greyhound cross, with body condition score (BCS) two out of five (2/5), bare bones for food, no fresh thawed food available, tied up on six foot chain (image 01 and 02);

(2) Female, greyhound cross, BCS 1.5/5, no fresh food available, tied up on six foot chain (image 03 and 05);

(3) Female, greyhound cross, eight months old, BCS 2/5, no fresh food available, tied up on eight foot chain, frozen blanket nearby but snow covered and half buried (image 06 and 07);

(4) Male intact, greyhound, BCS 1.5/5, running loose, shivering, lesions on feet and nose (image 08, 011 and 014);

(5) Long haired Borzoi X greyhound, BCS of 2.5/5 which appeared ideal because animal was not spending most of its caloric energy regulating body temperature compared to the other short coated dogs, bare bones for food, no fresh thawed food available and could not reach frozen cow head for food, tied up to six foot chain tangled around post, lesions on feet (image 09, 010 and 016);

(6) Female, greyhound, BCS 1.5/5, many bones around, shelter was scant, frozen meat, eight foot chain tangled around tree branch, small amount of straw outside of shelter with debris (image 019 and 021);

(7) Female, greyhound, BCS 2/5, running loose and jumping in and out of truck box, lesions on feet, scabs on nose; and

(8) Male, greyhound cross, BCS 1/5, kennelled in plywood shelter in back of truck box, no insulation in shelter, lesions on nose, no access to food (image 024 and 025). [ 35 ] Dr. McCrae-Spence then detailed the evaluations she made of dogs and livestock at Mr. Andres’ farm property. Regarding the dogs, most of whom were pictured in Exhibit P-4 and all which had no access to fresh water, she summarised:

(1) Male, greyhound cross, running loose, would not approach us for evaluation, unable to catch, collar appeared very tight;

(2) Male, greyhound, BCS 2/5, wound at base of right ear, lesion under chin with fresh blood staining the fur, lesions on feet, walking with painful gait, unable to remove flesh from frozen cow head provided for “food” (image 042 and movie clip 1 in Exhibit P-8);

(3) Male, Mastiff cross, black muzzle, BCS 2/5, no food, freshly placed straw, anxious and fearful towards human contact, appears to be poorly socialized (pictured in image 070 and 072); and

(4) Litter of six greyhound cross puppies about eight weeks of age, with BCS of all puppies 1.5/5, only a small amount of snow in a tub for water source, housed in old barn (debris and hazardous materials strewn about), higher risk for disease spread due to extreme faecal contamination in the barn, bones with little meat available as the only food source, potbellied appearance of all pups likely due to high parasite burden, two of the pups appeared lethargic and depressed, one appeared painful and would whimper when walked, one had eye discharge, one had a lesion on left hind leg.

The latter puppy subsequently tested positive for parvovirus enteritis at the Regina SPCA. That disease is spread through faecal contamination (image 031, 032, 038, 039, 040, 074 and 076). [ 36 ] Regarding the evaluations Dr. McCrae-Spence made of the livestock she viewed, she summarised:

(1) About 30 horses in pasture, small amount of hay, no source of water as sloughs in pasture were frozen, no apparent shelter, pasture was covered in snow or ice. BCS from a distance appeared normal (2.5/5 or greater), a few had halters left on. I was unable to enter pasture to examine horses due to aggressive guard llama, with a markedly matted coat;

(2) Two horses were found locked in one compartment of a standard sized horse trailer. No recent hoof prints or tire marks were evident outside the trailer (it appears there was a light snowfall a day or two before). Halters and lead rope were left on the horses. It appeared that both were in poor body condition (BCS 2/5 or less). No access to feed or water (image 069 and movie clip 02 in Exhibit P-8);

(3) Two horses were found in one small paddock alone, with no water source (two tubs were filled with ice/snow), some hay was located outside the paddock near an exit just out of reach of the two horses. Both appeared to be in decent body condition (BCS 2/5 or greater); (4) 10 to 15 horses found in large paddock with no water, electric water present but not functioning and horses would not be able to access this as it was located in a separate paddock with no entry point, small amount of hay present but located in cow bay feeders where horses are not able to access feed properly.

The horses appeared hungry and were scavenging for food on the ground. Dangerous debris and machinery present throughout paddock, including wire, boards with nails, tripping hazards, etc. Halters were left on many of the horses. Horses appeared to be in decent body condition (BCS 2/5 or greater). Two horses had wounds on their limbs, and one horse had an untreated wound on its right hind knee (image 043, 044, 047, 051, 054, 055, 056 and 058, and movie clip 03 in Exhibit P-8);

(5) About 10 cattle found in same large paddock as the horses, with no water and very little hay. It appeared half of the cattle were in poor body condition (BCS 2/5) while the other half were in decent body condition (2/5). Ribs, pelvis and spinal vertebrae were easily visible in those with poor body condition. Four to five of the cattle have moderate to severe eye discharge and/or swelling in one or more eyes along with poor body condition. One cow in particular had marked swelling on the right side of her face with severe bloody and necrotic discharge (dead tissue).

The lesions seen were consistent with what we would diagnose as cancer eye which when detected in early stages can be treated. The cow was in obvious distress and beyond treatment and the only humane option was to euthanise her. The BCS of that cow was 0.5 out of five (image 059, 060 and 067 and movie clip 04 in Exhibit P-8). [ 37 ] Dr. McCrae-Spence’s report concluded with these general comments :

(1) All the dogs were shivering which indicated they are in poor body condition and not getting enough energy through food to build up an insulating fat layer. These dogs were expending a tremendous amount of energy trying to regulate their body temperature, eating snow (an inadequate water source), eating frozen bones with scant meat and living in inadequately insulated shelters.

(2) Many of the dogs on both properties had lesions around their toes (fresh blood could be visualized easily).

(3) Frozen cattle heads were often the only food source available for these dogs (image 014 and 015).

(4) Many of the horses on the farm property had poor hoof conditions, overgrown and cracked.

(5) One bull in the large paddock area was missing the distal (end) of his tail. All tags on the cattle were difficult if not impossible to read. [ 38 ] At the conclusion of her evidence, Dr. McCrae-Spence summarised her concerns. Regarding food for the animals , she said:

(1) For the dogs , there were frozen bones only with no evidence of nutritional food. Her opinion was that raw feed was not sufficient by itself and that raw meat found at the property was not of sufficient quality to feed these dogs.

(2) For the horses , she observed no available feed for the horses with only a small amount of hay with some of the horses having no access to hay.

(3) For the cattle , there was only a small amount of hay for the cattle. [ 39 ] Regarding the provision of water for the animals , she said:

(1) For the dogs , there was no provision of fresh water, only snow which in places was trampled down.

(2) For the horses , there was no water source and any snow available was packed down which in her view was not adequate.

(3) For the cattle , there was no water source, and again the cattle could only access packed down snow. [ 40 ] Regarding the shelter for the animals , she said:

(1) The doghouses she saw were not of adequate size and lacked proper insulation, and were very dirty because of faecal contamination and filth.

(2) For the horses , there was no shelter of any kind.

(3) For the cattle , there was no shelter present. [ 41 ] On cross-examination, she admitted that she was paid $800.00 by the SSPCA to do these evaluations. She further admitted that body condition scores for the dogs are subjective, and it is possible that she could disagree with another veterinarian assessing the same dogs. Based on her evidence, it did not appear that she had a lot of experience dealing with so-called guard dogs, but she clearly viewed her opinion as applying to the type of dogs she examined. Dr. Christine Smetschka [ 42 ] Dr.

Smetschka was declared to be an expert in the condition and health of animals, and allowed to give opinion evidence in this area. She relied on her report dated February 12, 2012, marked as Exhibit D-6. As with the other professional witnesses, and given the passage of time, I have no doubt that her report provides the best evidence of her observations. [ 43 ] On February 12, 2012, she examined the group of dogs seized from Mr. Andres. These appeared to be either greyhound mixes or some other type of sight-hound mixed dog. One of the dogs was a Borzoi.

With the exception of one female dog, she said they were all very thin. The dogs’ nails were all long, and they all had dirty coats. Most of the dogs had visible wounds on their distal limbs which were in varying stages of healing. [ 44 ] The next day, on February 13, 2012, she examined another 10 dogs from the same seizure. All of these dogs except one male appeared to be some sort of sight-hound mix. In total, she examined five adult dogs and five puppies. All dogs had dirty coats and long toenails. A flea was found on one of the dogs and she recommended treatment of all the dogs with ectopariticide.

She also noted roundworms in the stool of one of the dogs that had been examined the previous day. The dogs had already been treated with a dewormer. [ 45 ] In conclusion, she said that all of the 18 dogs examined appeared to be suffering from some manner of neglect. She said for most of them, the neglect appeared to be a lack of proper nutrition and inappropriate housing. Despite their inadequate care, the majority of the dogs were quite friendly and not one was aggressive or resented being examined.

She recommended that these dogs be given proper nutrition, be groomed, be treated for ectopariticides and have their housing situation addressed. [ 46 ] Upon questioning by Mr. Andres, it was clear that this veterinarian rated the BCS of a number of the dogs higher than Dr. McCrae-Spence did. When asked what type of protection a farm dog required, she said that proper protection was required, but that could vary depending on the time of year and the weather.

When asked whether a so-called hunting dog could be left outside unprotected at minus 30 degrees Celsius, she said that depended on the amount of snow, the time of year and food source that was available. Dr. Diana Durling [ 47 ] Dr. Durling, similarly, was found to be an expert in the condition and health of animals and allowed to give opinion evidence in this area. She has been a veterinarian for 25 years and is familiar with farm and guardian dogs. On February 9, 2012, she examined six of the puppies seized from Mr. Andres. In her report, Exhibit D-7, she made the following observations about the six puppies:

Puppy 1 (male) - BCS 1.8/5, depressed, scruffy looking, potbellied, poor hair coat, lice, refused to eat soft food, lethargic, increased respiratory sounds, pink extremities, urinated in the room. Tubular mass on right-hand side of abdomen extending along the midline caudally. Highly suspicious of intestinal intussusception.

Parvo test came back strongly positive, meaning the presence of parvovirus; Puppy 2 (male) - BCS 3.5/5, potbellied, nice hair coat, hydration good, played with another puppy in the room, did not eat any offered food; Puppy 3 (female) - BCS 3.5/5, mild vaginitis; Puppy 4 (male) - BCS 3/5, mucous membranes light pink, potbellied, nice hair coat, hydration good, very sleepy, unwilling to eat; Puppy 5 (female) - BCS 3/5, mucous membranes light pink, potbellied, nice hair coat, hydration good, lots of energy, playing with the other pups in the room, willing to eat the offered diet; and Puppy 6 (female) - BCS 1.8 out of five, potbellied, thin, wound on left hind leg at caudal thigh - healing well - unwilling to eat, played with the other puppies in the room, urinated in the room.

Neal Hudy [ 48 ] Mr. Hudy is a truck driver who, in the course of his occupation, delivers livestock. He said on February 8, 2012, he delivered two cows to Murray Andres’ farm at MacNutt. A livestock manifest was tendered (Exhibit D-8), which supports his evidence that he received the cows at Heartland Auction and that the cows were to be delivered to Mr. Andres. He as well confirmed that there was a sign at Heartland Auction which said: “Wanted crippled or dead cows for coyote bait”, with a phone number which I take to be Mr. Andres’ (Exhibit D-9). He said he dropped the cows off at Mr.

Andres’ farm and did not see him at that time. He had no recollection of what the two cows looked like, and in particular did not recall one having a seriously damaged eye. Grant Pope [ 49 ] Mr. Pope is a friend of Mr. Andres, and has been so for 45 years. He is a mental health proctor, and brought one of his patients to Mr. Andres’ place on February 7, 2012, to have his patient see the animals. He said he went to the barn and saw the puppies that were identified in Exhibit P-4 in pictures 75 and 76. They were jumping and playful and he didn’t see any sign of sickness in them.

He said there was a yellow tub in the barn, into which Mr. Andres fed the puppies with a home concoction of meat, porridge and water, and, after the puppies were finished, Mr. Andres put snow into the tub. [ 50 ] Mr. Pope said he came back to Mr. Andres’ place the next day, when he took a picture of Mr. Andres’ horses with a water tub close by (Exhibit D-10). In that picture the sky appears overcast and the horses have snow on their backs. He further said, that day, he saw meat as pictured in a bowl (Exhibit D-12).

Lastly, he said that day he saw a doghouse with insulation on the wall (as pictured in Exhibit D-13). [ 51 ] Mr. Pope said that Mr. Andres was always willing to help people in the community and that he had worked with animals for years. He had witnessed Mr. Andres give medication to his animals and he denied that he had ever seen a sick dog on Mr. Andres’ premises. Nor was he concerned for the safety of the dogs that Mr. Andres had. He said that Mr.

Andres’ yard was sheltered with trees. [ 52 ] In cross-examination, he was challenged about how the pictures tendered through him could have been taken on a sunny day, as claimed by the Crown witnesses who were present, and how the horses, close to the water could have snow on their backs, if it was a sunny day. While maintaining he was not mistaken about when he took the pictures, he suggested that maybe the horses rubbed up against a tree to get the snow on their backs. Analysis [ 53 ] Taken together, the evidence presented by the Crown satisfies me beyond a reasonable doubt that there were animals, which Mr.

Andres was responsible for this day, that were in distress, which is defined in s. 2(2) of the Act as being: (

a) deprived of adequate food, water, care or shelter; (

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

c) abused or neglected. That is because of the following evidence,

which I accept: (

a) Regarding the dogs:

(1) Ms. Pugh said the dogs at Mr. Andres’ property were not receiving good care; their shelter was not adequate given the type of dogs involved, nor was water available and the food that was there was not sanitary. As well, some of the dogs had injuries to their toes and tail. She admitted that there were different standards applied to the care of dogs, but maintained that adequate food, shelter and care is necessary, especially considering the types of dogs involved. Here the greyhounds had short coats and required insulated structures to protect them, and this was not present.

(2) Dr. McCrae-Spence opined that : (

i) there were frozen bones only with no evidence of nutritional food, as her opinion was that raw feed was not sufficient by itself and that raw meat found at the property was not of sufficient quality to feed these (ii) there was no provision of fresh water, only snow which in places was trampled down; the doghouses she saw were not of adequate size and lacked proper insulation, and were very dirty because of faecal contamination and filth.

(3) Dr. Smetschka said that all of the 18 dogs examined appeared to be suffering from some manner of neglect. She said for most of them, the neglect appeared to be a lack of proper nutrition and inappropriate housing. Despite their inadequate care, the majority of the dogs were quite friendly and not one was aggressive or resented being examined. She recommended that these dogs be given proper nutrition, be groomed, be treated for ectopariticides and have their housing situation addressed.

(4) Dr. Durling found one puppy to have parvovirus. (

b) Regarding the horses :

(1) Regarding the horses , Ms. Pugh noted a lack of accessible water and feed, and did observe one horse with an injured leg that was untreated.

(2) Dr. McCrae-Spence observed that there: (

i) was no available feed for the horses with only a small amount of hay with some of the horses having no access to hay; (ii) there was no water source and any snow available was packed down which in her view was not adequate; and (iii) there was no shelter of any kind. (

c) Regarding the cattle:

(1) Ms. Pugh said there was a lack of water, that any snow that they could consume was not clean. As well there was insufficient feed and noted two cows with eye problems, one in such severe condition it had to be euthanised, and one with a problem on its jaw.

(2) Dr. McCrae-Spence said: (

i) there was only a small amount of hay for the cattle; (ii) there was no water source, and the cattle could only access packed down snow; and (iii) there was no shelter present. [ 54 ] The defence evidence, which I am to consider in deciding whether Mr. Andres has shown on a balance of probabilities that he took reasonable care to prevent these animals from being in distress came from: (

a) Mr. Hudy , who I am satisfied delivered two cows to Mr. Andres, at Mr. Andres’ request, on this day. While it is surprising that he did not recall a cow in such extreme distress that it was immediately euthanised upon viewing by the veterinarian, I accept that he delivered this and another cow into Mr. Andres’ possession. Whether the cow was intended for coyote bait - which is at best hinted at

by evidence of a sign placed at Heartland Auction - is irrelevant to whether this cow was in distress and whether Mr. Andres was responsible for this animal on February 8, 2012, both of which I am satisfied of. (

b) Mr. Pope , who: (1) on February 7, 2012, saw six of Mr. Andres’ puppies who were playful and didn’t appear sick to him, and saw Mr. Andres feed these puppies and then put snow in the feeding bowl; (2) on a date claimed to be the date of this seizure - despite the evidence of the Crown witnesses that was a sunny day - photographed some of Mr. Andres’ horses (pictured on an overcast day with snow on their back) with a water tub close by, and as well saw and photographed raw meat in a bowl and one doghouse with insulation; (3) on some unascertained date saw Mr. Andres give medication to his animals; and (4) in conclusion said he had never seen a sick dog on Mr. Andres’ property. (

c) Dr. Smetschka who rated the BCS of a number of the dogs higher than Dr. McCrae-Spence but, nevertheless, concluded that all the dogs she examined were suffering from some form of neglect, which appeared to be a lack of proper nutrition and housing. (

d) In cross-examination, and despite no direct evidence from Mr. Andres on this, Dr. McCrae-Spence admitted that the vaccine listed in the invoice dated January 6, 2012 and marked as Exhibit D-2 was for parvovirus, although she said the puppies she found to be eight weeks of age on February 8, 2012 would have been too young (at four weeks) to receive the vaccine on the earlier date. (

e) In addition to Dr. Smetschka’s statement that whether a so-called guard dog could be left unprotected in -30C would depend on the amount of snow, the time of year and the food source - and setting aside the issue that the dogs here were not sled dogs - Mr. Andres cited the Mush With P.R.I.D.E.

Guidelines as stating that raw food can be sufficient for sled dogs (no page number was cited for this) and that the necessity of winter insulation can be achieved for these dogs with the use of straw, grass, hay or wood chips. [ 55 ] While this defence evidence, in the context of all evidence presented, has in my view significance on the issue of whether I have a reasonable doubt that Mr.

Andres committed a criminal offence, nevertheless I am not satisfied that this evidence meets the burden of showing he took reasonable care to prevent many of his animals from being in distress this day, as discovered and observed by Ms. Pugh and Dr. McCrae-Spence. In my view Mr. Andres did take some minimal steps towards providing water, food, shelter and care for his animals, but his efforts, taken together, were nowhere near what would be required to constitute reasonable care in preventing distress in many of the animals he was responsible for this day.

As a result, I am satisfied of his guilt on the provincial strict liability offence under s. 4 of The Animal Protection Act . IV. THE CRIMINAL CODE CHARGE (s. 446(1)(b)) [ 56 ] On this charge the Crown must prove beyond a reasonable doubt that Mr. Andres wilfully neglected or failed to provide suitable and adequate food, water, shelter and care for his animals. This is a different standard of proof from The Animal Protection Act charge, and, regardless of that difference, there must be proof of all of - and not just one of - unsuitable or inadequate food, water, shelter and care.

As well, especially considering the word “wilfully”, the Crown must prove that Mr. Andres intended to commit this crime. That mental element, or mens rea , requirement, applying the words of Judge Plemel in a similar case, requires a finding that Mr. Andres be found to be wilfully negligent. [8] I am left with a reasonable doubt that he was. [ 57 ] That is because: (1) when I consider Mr. Pope’s evidence, together with the pictures tendered by the defence, I am satisfied Mr.

Andres was making some attempts at feeding, sheltering and providing water and care for his dogs; (2) regarding his livestock, and again considering both the evidence of Mr.

Pope and the reality that none of these horses or cattle were seized by the SSPCA - but rather a warning was given to him, which I take as a form of acknowledgment that he was making some attempt at providing these necessaries for them - I have a reasonable doubt that he was wilfully neglecting the livestock; and (3) regarding the cow that was euthanised, while I am satisfied he was responsible for this animal who was in distress on his property, I am not sure that he knew this animal had arrived on his property on February 8, 2012. V. CONCLUSION [ 58 ] For the reasons stated above, I find Mr.

Andres guilty of the charge under s. 4 of The Animal Protection Act , but not guilty of

the charge under s. 446(1)(

b) of the Criminal Code. R. Green, J [1] See Alberta v B.(K.), 2000 ABQB 976, at paras 33 and 34. [2] 2001 SKCA 58, 207 Sask R 3. [3] R v Nova Scotia Pharmaceutical Society, (SCC), [1992] 2 SCR 606 at p 643. [4] Para. 81 of Spindloe. [5] Ibid. [6] April 12, 2013 in Yorkton. [7] R v Sault Ste. Marie, [1978] 2 SCR 1299, . [8] R v Irving, 2013 SKPC 101, 425 Sask R 1 (at para 135).