Her Majesty the Queen - v. -, 2015 SKPC 15

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 015 Date: January 27, 2015 Information: 24501330, 24501329 Location: Melfort _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kerry Allan Shmyr Appearing: Ms. Tyla Olenchuk For the Crown Mr. Grant Carson For the Accused JUDGMENT I.J. CARDINAL , J INTRODUCTION [ 1 ] On August 8, 2013, Buddy the dog was taken to the veterinarian and found to have a maggot infestation of his head and chest area. The veterinarian decided nothing could be done to save him and he was euthanised.

A couple days later, a dog named Snowy was taken to a veterinarian. Both dogs had been in the care of Mr. Shmyr for many years.

[ 2 ] Mr. Shmyr was subsequently charged with two counts of wilfully causing unnecessary pain to a dog contrary to s. 445.1(1) (

a) of the Criminal Code , being one for each of the named dogs. He also faces one count that he did cause or permit the animals to be or continue to be in distress contrary to s. 4 of The Animal Protection Act . The trial was held on November 13, 2014 with the Crown calling four witnesses and Defence calling five witnesses including the accused. [ 3 ] For the following reasons I am not satisfied the Crown has proven beyond a reasonable doubt that Mr. Shmyr is guilty of wilfully causing unnecessary pain to a dog named Buddy by long term neglect and by wrapping his tail in electrician’s tape and chopping off his tail contrary to s. 445.1(1) (

a) of the Criminal Code . I also find him not guilty of causing unnecessary pain to a dog named Snowy by long term neglect contrary to s. 445.1(1)(

a) of the Criminal Code . [ 4 ] I am also not satisfied beyond a reasonable doubt that the Crown has proven Mr. Shmyr is guilty of the charge that he did cause or permit the animals to be or continue to be in distress contrary to s. 4 of The Animal Protection Act. ISSUES 1. Has the Crown proven the offences concerning the Criminal Code charges, beyond a reasonable doubt? 2. Has the Crown proven the actus reus of the offence concerning The Animal Protection Act beyond a reasonable doubt? If the answer is yes, then has Mr. Shmyr discharged his onus concerning the defence of due diligence?

EVIDENCE Crown Evidence [ 5 ] Both dogs lived with Mr. Shmyr and his former wife, Loranna McComber at an acreage outside Beatty, Saskatchewan. Ms. McComber brought Snowy, an American Eskimo dog into the relationship. Buddy, a border collie, joined a short time later and with other animals lived at the acreage. Everyone described Snowy and Buddy as outside dogs who had an outside self feeding dog feeder and were also fed leftovers. While she was still living at the acreage Ms.

McComber testified she was the one who made sure grooming of the dogs was completed and that flea collars as needed were put on the dogs. [ 6 ] The parties separated and divorced in 2009 or 2010. She testified they had an unfriendly separation and they haven’t spoken since. Ms. McComber moved from the acreage and left Snowy and Buddy with Mr. Shmyr as she could not have pets in her new residence. On occasion she would drive out and while remaining on the road, would pet the dogs. Her children, Luke and Lee, would also feed the dogs on occasion. [ 7 ] On August 8, 2013, Ms.

McComber received a text message from her son, Luke, that Mr. Shmyr had texted him that Buddy had been hit by a car and it didn’t look good. Luke asked his mother to get the dog and take him to the veterinarian. Ms. McComber drove to the acreage and found Buddy laying on the grass barely breathing. She picked him up and noticed that the whole side of his head was soaking wet. She put him inside her vehicle and drove to the vet clinic in Melfort. Inside the vehicle, she testified the dog smelled awful and she thought that perhaps it was faeces stuck to his hair.

At the veterinary clinic, Buddy was placed on a table and the veterinarian, Dr. Lacy Walker, attended to the animal. Ms. McComber noticed maggots crawling out of Buddy’s fur. She testified that when the veterinarian lifted Buddy’s tail she could see toilet paper sticking out from underneath electrical tape that was wrapped on his tail. She said Buddy’s tail normally curled up toward his back, but about 12 inches of Buddy’s tail was missing. She also noticed that the top of his head was red and raw. Ms.

McComber believed Buddy was 14 to 16 years old at the time and while the veterinarian could treat some of the issues, the prognosis was not good, and the animal was euthanised. [ 8 ] Ms. McComber returned to the acreage to check on Snowy as given the state Buddy was in she was concerned for Snowy. She testified she coaxed the dog to her and noticed that Snowy’s ears were solid black and she was very dirty. She took her home with her and arranged to have her groomed but could not do so until the following Saturday.

She testified that Snowy is an 18 year old dog that had been hit by a car many years earlier and was very fragile and could not be picked up. The grooming which normally takes 30 to 45 minutes took 2.5 hours. She testified she couldn’t see the tattoo inside the dog’s ear as it was covered with what she believed were flea faeces. She testified the dog had really bad dander and that she saw three open sores on the dog. One was on the front paw which took a long time to heal and there were a couple on her back.

[ 9 ] Ms. McComber took Snowy to the veterinarian, Dr. Victor Kernelegun, at Gateway Veterinary Services on the Monday following the Saturday that the dog had been groomed. He testified he completed a physical examination. He observed the dog had a body condition of one and one-half out of five with one being thin and five being heavy. Normal is in the range of 2.5 to 3. She had been recently shaved and he noticed that she reacted more than most when touched along her skin, but he could not say whether that was just because she was itchy from the shaving.

He said she moved slower than he would like to see but attributed that to arthritis and her age. [ 10 ] He observed that she had bad breath from tartar build up on her teeth. Her teeth looked like they were loose and loose teeth tend to be painful. However, he did not check her teeth physically to determine if they were mobile. He estimated that the cost of repairing Snowy’s teeth would be in the range of $1,000.00 to $1,200.00. He testified that most similar breed of dogs without care for their teeth would show the same signs as Snowy.

She had a heart murmur, which could be related to the condition of her teeth, or it could have developed on its own. [ 11 ] He testified that this 18 year old dog was the equivalent of a 90 year old human. He said there will be muscle loss and they will have a harder time getting around. With respect to her ears, she did have dark wax on the outside of her ears but once he cleaned down he did not find any ear infection or mites. He did not notice any fleas or lice but she did have more dandruff than normal.

Other than prescribing an anti-inflammatory which appeared to help Snowy get around more easily, the veterinarian did not prescribe any other treatment. [ 12 ] In

summary the veterinarian described Snowy as an old but happy, normal dog. He indicated there were no signs of anyone inflicting pain upon Snowy. He did not mention seeing any open sores on Snowy’s body as described by Ms. McComber. [ 13 ] After consulting with the veterinarian, Ms. McComber decided not to have any surgery performed due to risks associated with the dog’s age. She was given medication for the dog for arthritis and Ms. McComber took Snowy into her care.

She cared for Snowy for a further nine months after removing her from the Shmyr acreage, and while there were some improvements in her overall ability to move about, her weight did not improve, her vision continued to deteriorate and she eventually stopped eating. After discussing it with her veterinarian, Ms. McComber had Snowy euthanised. [ 14 ] When Ms. McComber picked Buddy up at Mr. Shmyr’s acreage and took him to the veterinarian, it is clear Buddy was already in an advanced state of pain and suffering. Dr. Lacy Walker was the veterinarian who attended to Buddy when Ms.

McComber brought him into the Gateway Vet Services on August 8, 2013. She observed that Ms. McComber and her son, Lee, carried Buddy in on a blanket and put him on the examining table. She noted he was extremely weak and unable to lift his head and lay on the table without moving. She could see his hair coat was extremely matted as was the hair on his face and ears. When she moved the hair aside she could see open wounds and sores around his body, especially on his face.

Inside the wounds she noticed a large number of maggots. [ 15 ] He had a temperature of 40.1 degrees Centigrade which indicated he had a fever and he was lethargic. Her further examination found his tail was wrapped with electrical tape and when she removed it there was Kleenex or paper towel taped to his tail. She saw the tail was severed with a very clean cut. In her estimation, approximately 60% of the tail was remaining and 40% of the tip of the tail had either been caught in something or cut. Dr. Walker testified there was an overwhelming smell to Buddy in the examination room that she vividly remembers.

She said all vets know that smell because it is the smell of dead flesh. [ 16 ] Dr. Walker noticed Buddy’s coat was wet, extremely matted and had skin with open sores and larvae infestation. She testified the matting caused the sores. When there is such matting, it works its way to the skin and irritates the skin. The skin then may become infected and develop into what is termed a “hot spot”.

It is called that because it is a favourite place for flies to lay eggs which then turn into maggots. [ 17 ] In her experience, this level of matting would take about one month to develop, but it would depend upon the animal’s coat and the conditions the animal was in, as wet conditions allow mats to form more readily. [ 18 ] After Buddy was euthanised, they wanted to take pictures of the sores. The level of matting was so severe she had to work hard to cut through with scissors and razors in order to see the extent of the sores.

She could not determine the exact number of sores on Buddy, but vividly recalls a sore on the top of his head that was quite deep and was approximately 4 inches x 5 inches. Initially she

could tell the hair over top of this spot was wet and could see a little bit of redness from a sore. There was also another sore under his ear. She identified three photos she took after the dog was euthanised (Exhibit P-2). Photo 1 shows the top of his head with long hair and debris in it. Photo 2 was taken after a lot of the hair overlaying the head was removed and shows a large “hot spot” infested with maggots.

Photo 3 shows another sore and that his hair coat was quite matted and had debris in it. [ 19 ] She testified she couldn’t tell if he had fleas as the amount of debris on his body made it difficult to determine. She was able to determine that he was not hit by a car as she felt his entire body and there were no broken bones or swelling in his abdomen. [ 20 ] When she opened Buddy’s mouth she noted he had periodontal disease as his gums were red and inflamed and his teeth were loose.

This was a stage 3 disease where usually they would recommend cleaning and removal of teeth as it causes discomfort and interferes with the animal’s ability to eat. [ 21 ] Although it may have been possible to treat the fever with antibiotics and re-hydrate Buddy, the dead tissue would have to be removed with scissors or scalpels to allow the living tissue to heal. His tail would not be sutured, but a proper bandage would be applied. She was not sure how long it would take Buddy to recover from this state of neglect.

In her opinion, there was no question that due to his state of neglect he should be euthanised. [ 22 ] Dr. Walker telephoned Mr. Shmyr and explained to him that Buddy was not hit by a car and needed to be euthanised. She testified the conversation was brief, he was cooperative and told her that he and Buddy were not the closest. He told her a few days before that he tried to shave off some of the mats on Buddy’s body and in the process had cut Buddy’s tail and bandaged it with the Kleenex and electrical tape. He said Buddy had a sore on his head previously in the summer but it had resolved on its own.

He gave her his credit card information to pay for the veterinary bill. [ 23 ] In cross-examination Dr. Walker testified she did not see any teeth marks which might indicate the wound on Buddy’s head was from a dog fight. She agreed that fly strikes could happen in a few days but the matting she observed could not as it would take more than a few days. She did agree that the fly strike developed on Buddy’s head and it was most likely the origin of the maggot infestation. She maintained that on her initial examination 40 % of the tail was removed.

However in her opinion the matting all over the dog’s body indicates neglect from not being groomed. Further, the matting, the dental disease and the tail having been cut off is a different time frame than the fly strikes, which I understood in her opinion all amounted to long term neglect. [ 24 ] Dr. Philibert was the pathologist who carried out the necropsy of Buddy after he was euthanised. She has over 20 years of experience in the field of veterinary medicine and where her evidence conflicts with Dr. Walker, I prefer the evidence of Dr. Philibert.

She did both an internal and external examination of Buddy’s carcass. She observed that he had long and matted hair. There was a wound on the top of his head that was very large, approximately 4 cm x 5 cm which developed in hair at the surface and was ulcerated such that part of his skin was missing. There was a foul odour coming from him and maggots were under his hair. She removed a large number of maggots from under his left front leg.

Her examination of the skin revealed one could easily pull hair off from a very large area around the neck, as well as from the front of his left leg and the front of his right leg. Skin which was grey with holes in it indicated to her a large number of maggots had eaten and burrowed into the skin, causing the skin to die, turn grey and thus allowing it to be easily pulled away. [ 25 ] She noted that the very tip of Buddy’s tail had been cut and looked as if it was a fresh, recent wound. She said she could tell it was from the tip of the tail because of the size of the vertebrae and she could see bone.

Although it was difficult to tell how much of the tail had been removed, she testified it was not a third of the tail, just the very tip of the tail. Contrasting her evidence with that of Dr. Lacey and Ms. McComber, I accept her evidence in this regard as I find she completed a more thorough examination of Buddy. [ 26 ] Her internal examination revealed that Buddy had a lot of internal fat.

He had eaten as there was some food in his small and large intestine but his stomach was empty which indicated to her that he had not been fed at least one-half a day to one day. [ 27 ] Skin lesions on Buddy extended all over the back of his neck, up his side and up to the back shoulder and on the right and left arm pits of his legs. Two diagrams prepared by Dr. Philibert were tendered into evidence that show the shaded area as hair loss and maggots and the presence of dead skin (Exhibit P-3).

[ 28 ] She noted that the circle on the top of his head in the diagram indicated the wound on the top of his head which was 4 to 5 cm in length and was described by her as a “pretty large wound”. She said it would be visible. She also noted that it had been there for some time as it had not yet healed. She could not say what caused the cut on the top of his head, but it was deep, reaching muscle. There was also fluid on his neck which indicated that the wound had been there for awhile. [ 29 ] Dr.

Philibert observed that while flies usually lay their eggs on faecal decomposition, if the opportunity to lay on the wound of an animal presents itself they will do so, but it is not common to do so on a dog. If there is a wound or an area where dead tissue or some puss is present, or if hair is matted by urine, the fly looks to a wet area to lay its eggs. The eggs then hatch into small larvae which then grow larger and become pupae, which fall onto the ground and then morph into a fly. When the eggs hatch the larvae feed on the dead tissue, and as they do so they release enzymes that damage and digest the skin.

The skin becomes fragile and as these larvae have hooks they make holes in the skin and can go under the skin to continue feeding. The skin becomes dead and cannot heal very well. [ 30 ] She explained that the areas in her dorsal and ventral diagram views of Buddy, which are shaded in, are dead skin that she confirmed under a microscope. She noted she could see larvae or maggots in the skin and under the skin but did not determine the stage they were in.

She did observe there were various sizes of maggots, both large and small, which indicate to her they are in a different stage or it could be different species. [ 31 ] She did some research on the life cycle of flies from the egg stage to the larvae stage and all were in the range of 2 to 3 days, depending on the temperature. Although she was not qualified as an expert, she was of the opinion that Buddy’s head wound attracted flies, which laid eggs, which hatched into larvae and produced the dead skin which then attracted more flies.

She believed this process started around Buddy’s head wound and then spread upwards to his back because at the junction of the dead skin and normal skin she found the most sharply delineated area. [ 32 ] She did not observe any other wounds. She did look at tissue on a microscopic level but found nothing else of significance. [ 33 ] Her final diagnosis was that Buddy suffered from a very severe myiasis, which is an infection of a live animal by maggots. He also had an ulcerated dermatitis wound on his head which was chronic.

His tail injury had occurred recently as it had blood around it and dead tissue does not bleed. With respect to his mouth, the tartar on his teeth is fairly common and was not a significant finding regarding his health. She did not recall any loose teeth as that would be a significant finding. [ 34 ] Exhibit P-4, being three photographs of Buddy’s carcass taken by Dr. Philibert, were tendered into evidence. Photo #3 depicted the wound on Buddy’s forehead. She testified that flies are attracted to wet areas and maggots develop in fur wet from faeces or urine.

However there was no faeces or urine in the areas where she found maggots on Buddy’s carcass. [ 35 ] In cross-examination Dr. Philibert was not swayed. She testified that an owner would see something on top of Buddy’s head very quickly even if it was small concerning a cut. She testified that, although she referred to the injury on Buddy’s head as a wound, it is an ulcer. Flies are attracted to it and start to lay eggs. The size of fly eggs, although small, would be visible to the human eye. In her opinion the eggs would not be there very long, perhaps one day and then they become larvae that a person can see.

From the first stage larvae to the third stage larvae would be three days in her opinion. However, the extent of skin damage indicates to her more than three days had passed, but she cannot say how long. As the skin dies more flies are attracted and more larvae are laid which makes it difficult to indicate a time frame. [ 36 ] She noted that the majority of the maggots were between the dead and live skin which she interpreted that the infection extends as the maggots are damaging the skin and attracting more flies. Thus, the new eggs and larvae would be at the most recent place of infection.

The flies are not attracted to the damaged skin but to a new site of infection. [ 37 ] She was clear that the tip of Buddy’s tail was sliced and while it is not unusual to nick a dog while grooming, in this case the bone was cut off and a

section of tail was missing, although she described it as a small section.

Defence Evidence [ 38 ] The Defence called Leah Pawlek, daughter of Ms. McComber and step-daughter of Mr. Shmyr. She testified she saw both Buddy and Snowy on and off over the past four years before she moved away. She testified both dogs seemed good and had food and water. She could not recall when she last saw the two dogs but estimated it was not longer than a month before Buddy was euthanised on August 8, 2013. [ 39 ] The Defence also called Leslie Welch, Allen Evenson, and Lindsay Dupin, local farmers and neighbours to Mr. Shmyr. None of these witnesses provided any evidence as to Buddy or Snowy.

None of them knew the dogs’ names nor did they spend any time with the dogs. None of them could pin down any times as to when they last saw the dogs, although both Mr. Welch and Mr. Evenson believed they were there some time in July and August, 2013. I did not find any of the evidence given by these three witnesses to be of any assistance to the Court. [ 40 ] It was clear from Mr. Shmyr’s evidence he begrudgingly looked after Snowy and Buddy. He testified that he and Buddy were not close and that they had a “mutual understanding” and neither forced themselves on the other. Mr.

Shmyr testified that Snowy was fine while in his care but was an old dog. [ 41 ] Before Ms. McComber took Buddy to the veterinarian on August 8, 2013, Mr. Shmyr testified he had seen Buddy two or three days before that on the roof of the house which was his favourite spot. During that time Mr. Shmyr was building a garage and pumping water around the James Smith First Nation as it was flooding. He was home but gone three to four times a day to check pumps.

He did not see Buddy again until August 8, 2013 when he came outside in the morning and saw Buddy laying on the ground with his head under the step which goes up to the house. He was in poor condition. He said he thought Buddy had been hit by a car. Buddy was trying to get up and move around but was wobbly. He said Buddy was panting “like crazy” and was obviously overheated and couldn’t cool off. He cut mud off Buddy’s fur as much as he could and nicked the end of his tail. In a further effort to cool him off, Mr.

Shmyr took a glass and poured water over Buddy a bit at a time. [ 42 ] He testified he had texted Luke, his step-son, a couple of days earlier to tell him that Buddy had been gone. When he found Buddy laying outside on August 8, 2013, he texted Luke and told him the dog had to go to the vet. Luke texted back that his Mom would come and texted again that his Mom was on the way. [ 43 ] Mr. Shmyr testified he was trying to help the dog as he was in pain and couldn’t cool off. He said he was cutting the hair off Buddy with scissors and was cutting “wherever”.

He said he checked for a tail and couldn’t find one and didn’t realize Buddy had a bob tail. He said he nipped the end of it as the scissors were really sharp, but he still had a hard time cutting through the mud. He took Kleenex or paper towel and wrapped it with electrical tape around Buddy’s tail. He maintained that he did not intend to cut the tail off and he felt that since he was going to the vet in 15 minutes that wrapping it with Kleenex and electrical tape would be sufficient.

He testified he cleaned up Buddy’s fur and found nothing there. [ 44 ] The last time he had seen Buddy two or three days earlier, he was on the roof and had to climb a flight of stairs and a deck to get to the roof. He saw nothing abnormal about Buddy at that time. However, he did not look at his head as he was not close enough to do so. [ 45 ] On August 8, 2013 when he found him in the morning laying down, he said “I did my thing and texted”. He said Ms. McComber was on her way and he had sprinkled water and rubbed it in and that seemed to do the trick.

He said he told Luke he thought Buddy had been hit by a car. He said he knew right away that Buddy had to go to the vet. He said Ms. McComber was coming and “I thought that was great as it was about time she had an interest”. Knowing that she was coming he finished with Buddy and left to go check his pumps. He does not know when she attended to pick up Buddy. [ 46 ] He denied telling Dr. Walker that the tail had been nipped off some days before. He said he gave Buddy a haircut in an attempt to help him. [ 47 ] When asked of Buddy’s general condition he stated that “Buddy was Buddy”.

He needed a haircut, and the dog hated water.

On hot days he would try to wet him with water with the hose but the dog would run away. [ 48 ] He testified he took Buddy to the vet in 2011 as he had a skin problem, but it was treated and he recovered from that. He was advised that Buddy should be shaved yearly, and he told Luke that since Buddy was his dog, it was his responsibility to have it done but Mr. Shmyr would pay for it. [ 49 ] Throughout his evidence Mr. Shmyr made a number of comments in reference to the Crown’s testimony or the Crown’s evidence.

For example, when he was shown text messages between him and Luke he believed that there was other text messages that showed the times and dates from SaskTel and that he had seen this in the disclosure. He was given an opportunity to look through the disclosure, with the assistance of the Crown, but he could not locate the document he referred to. [ 50 ] He reiterated that when he found Buddy his head was under the stairs, but he never looked at his head. Yet, he admitted in cross-examination that he told Luke via text messaging on August 8, 2013, that Buddy had a big mark on his head.

He then said he had moved Buddy a little bit and saw something as he was cutting his hair. Despite thinking that Buddy had been hit by a car he decided to trim Buddy because he was covered in mud and panting hard. He said he was not trimming his tail to cool him off but was simply trimming him everywhere as he lay in the mud. He said he was cutting hair off that was caked on. He cut about two inches of length off Buddy’s coat. He said he cut more on the sides than along the bottom of Buddy but nothing on his top. [ 51 ] He said that after he cut Buddy’s hair it was still fairly thick.

When trying to reference the areas he cut to the photos, he testified the photos were not clear enough to show that he had cut Buddy’s hair. He did agree that he did not cut the top of Buddy’s head.

He said he cut on the side of him and believed he stopped at his feet then he went underneath his belly and around his back, cutting the hair on his side and buttocks. [ 52 ] Describing how he tried to cool Buddy down, he said he was using about a 10 ounce cup of water and would sprinkle it out of the cup onto Buddy and then he went and got another cup of water and did that again. [ 53 ] Curiously, he told Luke, via text, that he gave Buddy a haircut and that he “looked good and stood still”. He agreed that is what his text said and testified that he should have said that he laid still instead of stood still.

He agreed he did not shave either Buddy or Snowy in 2012 or 2013 but was not sure Luke shaved Buddy as it was his dog. He said that again Buddy was Luke’s dog and he told Luke to shave him. After he trimmed Buddy and cooled him off he left because he knew Ms. McComber was coming and since they don’t talk, he didn’t stay. He testified he never saw any maggots, but also wasn’t looking for anything. He said he never noticed maggots on Buddy’s head, neck or down into his armpits. He then commented that the pictures taken by the pathologist were after Buddy had been cut open and they peeled it back.

He said he didn’t see that and if he had he didn’t know what he would have done. He did say he wouldn’t have said Buddy had been hit by a car. He said the maggots were more on his head and he didn’t see his head as it was under the deck. He thought Buddy had been hit by a car and since he was going to the vet he didn’t think he needed to do anything further. When asked if he smelled the strong smell that both the veterinarian and Ms. McComber had described, he said he didn’t smell anything but he went on to say they said they were in a closed space.

However, even though he was very close he didn’t smell anything. [ 54 ] I must say I find Mr. Shmyr’s evidence surprising and at times contradictory. He often commented about the Crown’s evidence and what other witnesses had said and it was quite clear that he did not feel that Buddy and Snowy were his dogs and he wasn’t really concerned about anything to do with them. ANALYSIS The Criminal Code [ 55 ]

Section 445.1 states: 445.1(1) Everyone commits an offence who (

a) wilfully causes, or, being the owner, wilfully permits to be caused unnecessary pain, suffering or injury to an animal.

(3) For the purposes of proceedings under paragraph (1)(a), evidence that a person failed to exercise reasonable care or supervision of an animal...thereby causing it pain, suffering or injury is, in the absence of any evidence to the contrary, proof that the pain, suffering or injury was caused or was permitted to be caused wilfully, as the case may be. [ 56 ] This offence requires the Crown to prove beyond a reasonable doubt that the actions of the accused were wilful. While the Crown can rely on the presumption in subsection (3), the presumption can be overcome by evidence to the contrary. The Animal Protection Act [ 57 ]

Section 4 of The Animal Protection Act, 1999, SS 1999, c A-2.1 (the “ Act ”) states: No person responsible for an animal shall cause or permit the animal to be or to continue to be in distress. [ 58 ] Pursuant to s. 2(2) of the Act 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. [ 59 ]

Section 4 is a strict liability offence which does not import a requirement of full mens rea, given the absence of such words such as “wilfully”, “knowingly” or “with intent”. [1] Snowy [ 60 ] I find there is no evidence that Mr. Shmyr wilfully caused unnecessary pain to Snowy by long term neglect and therefore I find him not guilty of the charge contrary to s. 445.1(1) (

a) of the Criminal Code . Dr. Kernelegun found the dog was, overall, an old dog displaying the frailties that accompany old age. He could not link any of the conditions he noted to any type of mistreatment by anyone. While he observed things such as a low body weight, plaque on the teeth and some loose teeth that should be pulled, a heart murmur and arthritis, he was quite clear these could be caused by the dog being 18 years of age and the frail health that goes along with advancing age.

Other observations such as recoiling from touch of the skin could be attributed to the close grooming of the dog such that her skin was sensitive. None of these observations on their own or taken together satisfy the criminal threshold of wilfully causing long term neglect. [ 61 ] Further, I can find no evidence that Mr. Shmyr, being responsible for animals, in this case Snowy, caused or permitted the animal to be or continue to be in distress contrary to s. 4 of The Animal Protection Act , and find him not guilty. The veterinarian summed it up best perhaps when he said that Snowy was an old but happy dog.

Plaque build up and loose teeth do not amount to long term neglect nor to causing an animal to be or continue to be in distress. If such was the case, Ms. McComber herself would face prosecution for not having Snowy’s teeth removed when the veterinarian pointed out to her that her teeth were causing her pain. Ms. McComber decided not to proceed with the operation not only because she was concerned Snowy would not survive it but also because it is expensive. Owners have the option to continue with treatment or not when recommended by a veterinarian.

If the animal was in significant pain, undoubtedly the veterinarian would alert the pet owner and advise him as to the proper course including euthanasia. That does not mean a pet owner is causing pain or distress or neglect by failing to follow through with the course of treatment advised. Buddy [ 62 ] With respect to the allegation that he wilfully caused unnecessary pain to the dog named Buddy by long term neglect and by wrapping his tail in electricians tape and chopping off his tail contrary to s. 445.1 of the Criminal Code , I am not satisfied beyond a reasonable doubt that the Crown has proven its case.

[63] Even if I accept all of the Crown evidence, there is no evidence that Mr. Shmyr acted wilfully. There is no evidence that Mr.Shmyr deliberately injured Buddy in any way. He referred to Buddy having a “bob tail” and admitted he “nicked” Buddy’s tail. There isno clear evidence as to how long Buddy’s tail was before it was cut, but Dr. Philibert, whose evidence I accept, indicated the tip of thetail was cut. On all of the evidence I do accept, I find that his actions were not deliberate or wilful. [64] Nor is there any evidence of long term neglect. Mr.

Shmyr testified he did not notice the wound on the top of Buddy’s headuntil August 8, 2013 but only glanced at it and did not investigate it further. That wound is where both Dr. Lacey and Dr. Philiberttestified the maggot infestation started. Dr. Philibert, whose evidence I prefer, testified the maggot infestation moved down his neck andaround his front to the armpits of both his legs. She testified a person would notice the wound on the dog’s head easily, but Mr.

Shmyrtestified he had not see the dog up close when he last saw Buddy on the roof of the house. [65] There is no definitive answer as to when the maggot infestation started, but Dr. Philibert indicated it could have taken two orthree days from when the flies laid their eggs. The progression from eggs to larvae to fly happens very quickly.

Given the long hair onthe dog, it is possible that the development could have gone unnoticed for a few days. [66] However, it may be argued that long term neglect may be evidenced by a lack of grooming the dog such that his hair becamematted and allowed hot spots to develop that attracted flies that laid their eggs and became part of the maggot infestation. Yet, neitherDr. Lacey nor Dr. Philibert testified that the matted hair they observed on Buddy had contributed to the maggot infestation.

As well, Iaccept that Leah Pawlek saw Buddy within one month prior to his being euthanised, and noticed nothing out of the ordinary. [67] Applying the test as outlined by the Supreme Court of Canada in R v W(D)[2], I find I believe his evidence that he accidentallycut Buddy’s tail. Although I find the rest of his evidence suspect, I am not satisfied beyond a reasonable doubt on all of the evidence I doaccept, and find him not guilty of the Criminal Code charge. [68] With respect to the charge under The Animal Protection Act, clearly Mr. Shmyr was the person responsible for Buddy.

Buddylived with him for many years and continued to do so after both Ms. McComber and her children left the Shmyr residence. It may be thatLuke owned Buddy but clearly Mr. Shmyr was responsible for Buddy. [69] The question is whether Mr. Shmyr abused or showed long term neglect toward Buddy. I find the Crown has not proven theoffence beyond a reasonable doubt. As noted above, I accept that Mr. Shmyr did not deliberately cut Buddy’s tail on August 8, 2013. Once he did cut it, he wrapped it with Kleenex and tape in an effort to cover it before Buddy was taken to the veterinarian. Knowing thatMs.

McComber was coming to take Buddy in a short time, he left Buddy. While it may have been more prudent and humane to stay withthe dog, I accept his evidence that since he and Ms. McComber do not get along, he felt it best to go do other things. [70] As outlined above, the evidence falls short of proving long term neglect associated with the matting and maggot infestationand I find him not guilty of the offence under The Animal Protection Act. _________________________ I.J. Cardinal, J [1] R v Loerzel, Loerzel, and Trad Industries Ltd., 2007 SKCA 107 at para 14

[2] (SCC), [1991] 1 SCR 742