R. v. Fawcett Date:, 2012 BCPC 421

Citation: R. v. Fawcett Date: 20121122 2012 BCPC 0421 File No: 58091-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERT TODD FAWCETT EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE S. M. MERRICK Counsel for the Crown: N. Gregoire Counsel for the Defendant: J. G. Diamond Place of Hearing: North Vancouver , B.C. Date of Judgment: November 22, 2012

[ 1 ] THE COURT: Robert Todd Fawcett is charged with wilfully causing unnecessary pain or suffering to nine dogs between the 20th day of April 2010 and the 24th day of April 2010. [ 2 ] The facts are outlined in detail in Exhibit 1 in these proceedings. I am commencing my reasons at quarter after five in the evening. I do not propose to review the facts in detail other than to say that in attempting to euthanize a number of sled dogs, Mr. Fawcett committed the unlawful and criminal act of causing unnecessary pain to nine of those dogs.

The pain and suffering to those nine dogs was horrific. [ 3 ] In sentencing Mr. Fawcett this evening, I must take into account the principles of sentencing listed in ss. 718 to 718.2 of the Criminal Code , which have been reviewed in detail today. There is much that I would like to say, but as counsel have stressed to me, it is my obligation to sentence Mr. Fawcett in accordance with those principles. Counsel have reminded me of the purpose of sentencing, and I know that this forum is for the sentencing of Mr.

Fawcett, but it is hard to restrict comments, given how much the community has participated, the right-minded Canadians who have been concerned. I am hoping that given the detailed submissions of counsel, it is for those who wonder or who suggest that the maximum sentence should be imposed on Mr. Fawcett, which is five years' imprisonment, I hope by hearing the detailed submissions of counsel, that the community is aware that such a sentence would simply be contrary to the principles of sentencing and is not a supportable sentence based on the principles of sentencing and the circumstances of Mr.

Fawcett. [ 4 ] There are aggravating factors in this case. I agree with the submission of Crown counsel that the failure of Mr. Fawcett to stop the cull when it got out of hand is an aggravating feature. I agree it is an aggravating feature that Mr. Fawcett ought to have anticipated the possibility of the horrific circumstances that could result. The fact that this occurred on two occasions is, as well, an aggravating feature.

And while I appreciate the doctor's report filed as Exhibit 4, and I appreciate that it provides an explanation as to why, as was asked by counsel, by a member of the public during these proceedings, and by all of us listening here, why Mr. Fawcett could not stop. [ 5 ] I appreciate the explanation of why Mr. Fawcett did not or could not stop, but it is an aggravating feature that Mr.

Fawcett was in a relationship of trust and that the dogs depended on him, and to a layperson like myself who is not medically trained, and for those of us who have had to take our pets to a vet for euthanization, it is beyond comprehension. [ 6 ] I agree that the manner and means by which the dogs were killed and the severity of their injuries is an aggravating feature, and I agree that it is an aggravating feature, or factor, that the euthanization occurred in the full view of other dogs, including dogs that were not going to be euthanized. [ 7 ] The Crown has submitted as well that an aggravating feature is that there appears to be a legitimate concern both locally and globally with respect to the treatment of sled dogs in the business of sled-dogging.

I do not know that I, restricting myself to the principles of sentencing and the factors listed in ss. 718 to 718.2 , can say that that is an aggravating factor. In reminding myself that my comments should be restricted, what I will say is that there are a vast number of British Columbians and Canadians who are deeply concerned with the plight.

In this case, it is the canine athlete and what happens to them when they near the retirement age. [ 8 ] Counsel have put forth that, as a result of this incident, the task force and the legislative response has been to try and address that so there now are regulations which require the guardian of the sled dog to plan for the retirement of the dog who is born to run and, by its nature, needs to run. [ 9 ] It is for the community and the conscience of the community to determine whether the community can do more to assist in addition to what the legislative and task force response has been. [ 10 ] I agree that there are a considerable amount of mitigating factors: the fact that Mr.

Fawcett has entered a guilty plea, the fact that he is significantly remorseful, the fact that he advocated for the better treatment of the dogs of which he was a guardian, the fact that prior to the euthanization of the animals he did consider adoption and selling the animals, the fact that Mr. Fawcett confessed almost immediately, the fact that he has taken full responsibility. I take as a mitigating factor the two months that he spent in Guelph. [ 11 ] My colleague Judge Harris in his decision, R. v. Marohn , [2012] B.C.J.

No. 1290 , in paragraph 22 , speaks of the denunciation and deterrence that occurs by virtue of public arrest, a conviction, pre-trial release, conditions of release, extensive media coverage.

Based on what I have heard, there is no question that the public denunciation and the public response is an overwhelming mitigating factor in this case. [ 12 ] Based on what I have heard, however, I again leave for the community conscience as to whether the community response to some degree failed to control its emotions, and as I said earlier in these proceedings, two wrongs do not make a right, and uttering threats to kill is a criminal offence. [ 13 ] As a result of this, Mr. Fawcett has lost his lifelong passion and career. That is a mitigating factor. The effects that Mr.

Fawcett has suffered are mitigating in the sense that he is not the type of offender, as we heard about in other cases, who gained pleasure from his act of cruelty. The fact that Mr. Fawcett had been undergoing counselling prior to this and continues to undergo counselling is a mitigating factor. The fact he is pursuing a career unrelated to the involvement of the care, handling, or guardianship of animals is also a mitigating factor. The fact that he has a supportive network of family and the numerous positive character references are a mitigating factor.

The fact that he was of otherwise previously good character, had no prior involvement with the law, and had no criminal record are as well mitigating factors. [ 14 ] The fact that Mr. Fawcett had the support of the veterinarian that worked with him and the animals and that he always complied with previous orders issued by the SPCA are a mitigating factor. [ 15 ] So it is clear, nothing in the decision today or any comments I have made should in any way be considered a criticism of the SPCA. They are not.

To the extent that the SPCA was referred to in no way, in my view, has anything that I say should be interpreted in any way to be a criticism of the SPCA.

[ 16 ] The fact that Mr. Fawcett had previously practised a high standard of care with the animals of which he was a guardian is a mitigating factor. The fact that two veterinarians speak of Mr. Fawcett's professional integrity is a mitigating factor. The fact that Mr. Fawcett regarded the animals of which he was a guardian more as pets than of working animals is a mitigating factor, and his willingness to embrace recommended changes in order to improve the welfare of the animals in his care is a mitigating factor, and the fact that prior to this there had never been a witnessed act of abuse or neglect by Mr.

Fawcett is a mitigating factor. [ 17 ] I appreciate, Mr. Fawcett, that you grew up in a rural environment, but to those of us who grew up in an urban environment, and for those of us who have pets, and we have all heard how the dogs in your care you considered as pets, and even though we have the doctor's report, I will say again that it is beyond comprehension as to how this could have occurred, but in saying that, the doctor provides the explanation. There is no suggestion that you were ever cruel to the dogs in your care, and the evidence before me is you always had their interests at heart.

So the explanation based on the evidence before me is that you, in your makeup, suffered from a dissociative state that while it would have prevented others from committing this offence, it is because of that state that this offence occurred. [ 18 ] I have thought about the principles of sentencing and the case authorities, and I have come to the conclusion that based on the circumstances of the offence, your circumstances, the principles in ss. 718 to 718.2 of the Criminal Code , the prior case authorities, the doctor's report, that a period of incarceration is not the appropriate sentence in these circumstances. [ 19 ] It is difficult to assess a fine for an activity, not an activity, a crime that caused the unnecessary suffering and pain of a living, or in this case, of nine living beings.

It is hard to do that because there is no dollar value that correlates to the pain and suffering that those nine dogs endured.

If I do not impose a fine, then, I have concluded, I am not sentencing you in accordance with ss. 718 to 718.2 of the Criminal Code , so there must be a fine, but the fine in no way relates to anything other than I have concluded that denunciation and deterrence require a fine and that a fine must be commensurate with your ability to pay and in no way relates to the suffering, that is to say, the quantum or the level of fine in no way is in any way based on the level of pain or suffering because if I were to do that, the amount of fine that I would impose would be astronomical and would never be paid in your lifetime, your children's lifetime, or your grandchildren's lifetime. [ 20 ] The fine that I am imposing is simply a penalty.

There will be a fine of $1,500, and the victim fine surcharge of $225 will apply. You will have until November 22, 2013, to pay that fine and surcharge. Mr. Diamond will explain to you the provisions with respect to extensions if you have been making payments if you are unable to pay the fine. [ 21 ] In addition to the fine, I am placing you on probation for a period of three years, which is the maximum period of probation that I am allowed to impose by law.

You will have until Monday, November 26, at 2 p.m. to report in person to the probation officer at the probation office located at 100 - 233 West 1st Street, North Vancouver, B.C., and thereafter, you shall report as and when directed by the probation officer. [ 22 ] When first reporting to the probation officer, you shall advise the probation officer of your present residential address and phone number and you shall not change your address or phone number at any time without first providing written notification to the probation officer. [ 23 ] There are three statutory conditions which, by law, are contained in a probation order.

You shall keep the peace and be of good behaviour; you shall appear before the court when required to do so by the court; and a similar provision as I have imposed with respect to notifying the court or your probation officer in advance of any change of name or address or occupation. [ 24 ] You shall attend, participate in, and successfully complete any counselling as directed by the probation officer.

Without limiting the generality of this condition, such counselling shall include psychiatric and psychological counselling, and you shall attend for any assessment as directed by the probation officer. [ 25 ] With respect to the discretionary firearms prohibition, a firearm was used in the commission of this offence. As I understand it, you are not lawfully entitled to possess that firearm. I am correct in that, am I not, or is that just -- [ 26 ] MR. DIAMOND: I don't think it was illegal to possess it at the time. It was not his rifle. [ 27 ] THE COURT: Oh, okay. [ 28 ] MR.

DIAMOND: He just -- he didn't have a licence to own one himself. [ 29 ] THE COURT: Oh, okay. [ 30 ] MS. GRÉGOIRE: He didn't have a firearms acquisition permit. [ 31 ] THE COURT: Nonetheless, a firearm was used in the commission of this offence. Based on what I have heard about your present medical situation - and this is not to punish you, Mr. Fawcett; this is to ensure the safety of the community - I am exercising my discretion under s. 110 of the Criminal Code , and there will be a 10-year firearms prohibition for the items enumerated in that

section and the corresponding sections related to the firearms provisions, being that you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance or all such things for a period of 10 years. [ 32 ] With respect to the Crown request for an order of prohibition pursuant to s. 447.1 of the Criminal Code , the evidence before me is that Mr. Fawcett is not a risk to re-offend. This was situational. He has previously acted appropriately.

It is therefore my view that it is not appropriate to exercise my discretion under s. 447.1 and that request is denied. However, as a condition of your probation, Mr. Fawcett, you are prohibited for the entirety of your probationary period from participating in the decision-making of the euthanization of an animal.

[ 33 ] You are prohibited from participating in the act of euthanization of an animal. [ 34 ] For the entirety of your probation period, you are prohibited from participating in the commercial sled dog industry. [ 35 ] For the entirety of your probation, you are prohibited from attending at a facility or organization whose main business -- there must be a better way of describing it than sled-dogging. What do counsel -- [ 36 ] MR. DIAMOND: Dog-sledding. [ 37 ] THE COURT: Dog-sledding.

From attending at any facility whose main purpose is dog-sledding or from participating in or going on a dog sled ride. [ 38 ] As a condition of your probation, should you engage in any commercial activity that involves an animal, you are required to notify your probation officer in advance of engaging in a commercial activity that involves an animal, and prior to engaging in any commercial activity that involves an animal, you are to provide to the owner or a representative who operates that activity who is in a management position a copy of your probation order so that they are aware of this. [ 39 ] I say that appreciating the reality that based on what I have heard, so many people will know you before you get there, but in case that is not the case, in order for the protection and the safety of the commercial animals, a manager or owner needs to know. [ 40 ] I will look to counsel for any comments with respect to the probation order.

Everybody recognizes that I am doing this after taking the least amount of time I could, but do counsel feel that I have missed or need to address anything further with respect to the sentence? [ 41 ] MS. GRÉGOIRE: I don't think so, Your Honour. [ 42 ] THE COURT: I thank all of you who have remained till five to six, or those who just left a few minutes ago. Your involvement in the proceedings today is of significant benefit to the court, the rule of law, and the justice system.

While I appreciate that there may be people who disagree with the sentence imposed, that is certainly the right of people, but I hope, and it is my sincere desire, that if there is disagreement or a differing view, it is based on the fundamental principles that were discussed in the courtroom today because my decision is based solely on the sentencing principles that were enunciated and were detailed in the court today, and it is the sentence of the court based on the principles that I am obligated to consider in the sentencing of Mr.

Fawcett. [ 43 ] Thank you to the staff who remained, and once again, my appreciation to you, Mr. Diamond, and you, Ms. Grégoire. You have exceeded the high standards that are expected of you. [ 44 ] There is one final question. It is now five to six. I have never been in a situation where somebody has to sign a probation order and a fine notice. Does that occur and the building remains open for Mr. Fawcett? [ 45 ] MR. DIAMOND: We have that sorted out, Your Honour. [ 46 ] THE COURT: Okay. So Mr. Fawcett, you are directed by the court to remain in the building to complete the signing of the probation order.

The building will actually be closed now that court is concluded, and you are under the direction and the supervision of the sheriff's officers, so if they tell you that you have to remain in a certain portion of the building, you must remain in a certain portion of the building. If they restrict your movement within the building, they are entitled to do so, and you are required to follow their direction. [ 47 ] MS. GRÉGOIRE: Your Honour, I just -- when you asked earlier if there was anything, I'm wondering if Your Honour has put your mind to the community work service -- [ 48 ] THE COURT: Oh, yes, thank you.

I did. [ 49 ] MS. GRÉGOIRE: And I'm sorry I didn't bring it up. I just -- [ 50 ] THE COURT: No. It was my absolute intention. It was my absolute intention to impose community work service.

In my view, for the principles listed in ss. 718 to 718.2 , there is no question that community work service is absolutely appropriate. [ 51 ] You were a guardian of those animals, sir, and in my view, there was a breach of trust, and to show the court's denunciatory view of what occurred, and to remind you and others of the suffering and the fact that there will be a penalty and there are penalties for this offence, I agree completely with the Crown's suggestion that there be 200 hours of community work service to be completed under the direction and to the satisfaction of the probation officer. [ 52 ] I say this for all who are here.

I want this community service work to be done as soon as it can be done, but community service work takes time to arrange and implement, so I hope it is communicated to the probation officer that my intention is that there be a punitive aspect with respect to the community service work and it be done in a timely fashion, but that said, the reality of community work service is, that work has to be arranged, it has to be organized, and Mr.

Fawcett is not the only person in the community who will be doing community work service. [ 53 ] So although it is a longer period than I think is required, what I usually do, sir, is I reduce your reporting requirement when the community service work is done to give you the incentive to get the community service work done, but that is not applicable in this case because the sentence requires you, in my view, to continue reporting for the entirety of the three years. [ 54 ] So what I am going to say is that the community work service is to be completed by February 15, 2014, with my expectation that that community service work is to be done long before then, but I leave it in the hands of the probation officer, understanding what was meant, that the community service work is not to be left for six months before it is implemented or nine months before it is implemented, but the community service work is to be implemented in accordance with the availability of the community work service,

Mr. Fawcett's educational requirements and work requirements, but if it means, Mr. Fawcett, that you work nine to five and then do community service from seven till nine at night, that is what I expect. If it means you are working full-time and there is community service work on Saturdays and Sundays, you will do that community service work on Saturdays and Sundays.

I just do not have the ability to say X amount will be done by such and such a date, X amount will be done by such and such a date, because if the work is not available in the community, then you are going to be required to come back to court to make an application, and I do not think that is in anybody's interest to have you return to court. [ 55 ] We have to understand that like everything else in this day and age, there are limits to the availability of community service work, but nothing stops you, sir, from finding a community organization that would benefit from your community service work and arranging with the probation officer to do the community service work for an organization or group that you have arranged to do the work for so that the work can be done, but it is my full expectation, sir, that this community service work gets done and gets done in a timely fashion. [ 56 ] THE CLERK: Excuse me, Your Honour.

Would you like me to add into the -- community work service to be completed by February 15, 2014, but community work service to be implemented in accordance with availability? Would you like me to add that in? [ 57 ] THE COURT: No, I think that goes without saying. [ 58 ] THE CLERK: Okay. Thank you. [ 59 ] THE COURT: The probation officer cannot direct Mr. Fawcett to attend to do the work if, as sometimes happens, there are periods of time when other people have to get their community service work done because they are approaching their deadlines.

But that is why I encourage you, sir, because this is part of the debt that you owe to society, and you should not, given what has occurred, wait to get this done. You should get it done. [ 60 ] Anything further? [ 61 ] MS. GRÉGOIRE: Nothing further, Your Honour. [ 62 ] THE COURT: Thank you, everyone. (REASONS CONCLUDED) Exhibit 1 Court File Number 58091-1 North Vancouver Court Registry IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: HER MAJESTY THE QUEEN AND: ROBERT TODD FAWCETT AGREED STATEMENTS OF FACTS NICOLE J.

GRÉGOIRE COUNSEL FOR HER MAJESTY THE QUEEN Crown Counsel 200-23 rd Street North Vancouver, BC V7L 4R4 Telephone: 604 981-0256 J. GREGORY DIAMOND COUNSEL FOR ROBERT FAWCETT Double Diamond Law Corporation Unit 217 - 4368 Main Street Whistler, BC

VON 1B4 Telephone: 604 938-0890 AGREED STATEMENT OF FACTS HISTORY OF OWNERSHIP OF HOWLING DOG TOURS 1. Howling Dog Tours Whistler Inc., was a company operating in the Whistler Pemberton area providing recreational Sled dogs tours where sleddogs are used to pull a sled over snow or ice by means of a dog harness and lines. This is called "mushing", and the person directing the dog team, a "musher". 2. In 2009, Robert Todd Fawcett ("Fawcett") was the Kennel Manager of Howling Dog Tours Whistler Inc. (HDT).

As of early 2009, the majority (90%) of the shares of this business were owned by Outdoor Adventures Whistler (OAW). 3. The kennel owned by Howling Dog Tours and the subject of this offence is located on tenured Crown land 13 kilometres south of Pemberton to the East of Highway 99. The property is bordered on the west by highway 99 and to the east by a mountain range. The kennel housing the main herd was between the mountain and the cull site. 4. Although he was an employee at the time of the cull in April 2010, Fawcett had been involved as an employee of HDT and part owner as early as 2000.

In 2003, the former owner sold his 50% share of HDT to an adventure company that was eventually purchased by OAW in 2008. Over time, Fawcett sold the bulk of his shares to OAW, and, by November 2009, OAW owned all of them. 5. During this time period, the BC SPCA monitored the operations and performed inspections. We are told by the SPCA that Fawcett complied with the Orders issued by the SPCA. We are also told that Fawcett had the support of the local veterinarian, Dr. David Lane, who had been hired by Fawcett to perform regular herd checks on the animals. 6.

In March 2009 during an attempt at a routine inspection, the SPCA learned that the majority share of ownership of Howling Dog Tours Whistler Inc. had transferred to Outdoor Adventures Whistler. Subsequent to this change on ownership, the new owner of the company contacted the SPCA to arrange for future inspections. 7. Fawcett explains the transfer of ownership to Dr. Lohrasbe as follows: In 2008 a man named Joey Houssain bought a company which owned 50% of Fawcett's shares. Over the next two years, Fawcett sold the bulk of his company to Mr.

Houssain, as his personal financial situation remained fragile, and dependent on the winter tourist rush. (Dr. Lohrasbe's report, page 5.) 8. In an email dated August 2009, received from Mr. Fawcett's counsel, Mr. Houssain wrote to Fawcett and his wife to make them aware of how dire the situation was with the company. He explained in the email that "I have put 180 k into HDT since May 1 of this year. This is in addition to over 500k of shareholder loans already. I can't sustain this as my other businesses are the ones suffering.

I have no more money in OAW or Wedge to loan. ....For now, an absolute FREEZE on any spending other than food and the bare minimum labour that is required. Bob, all expenses need to be discussed personally with me and must be put on company Visa or on account. No more expense reports from expenses put on your own personal credit cards. ...I am still very passionate about making this business work but I'm overwhelmed with the financial strain it has put on myself and what I am trying to build. ..." 9. The SPCA next heard from C. Coughlan, an employee of the company in January 2010.

Coughlan apparently called indicating that they were incredibly short staffed and Fawcett had only one day off during a long period and that the owner did not understand the business and that Fawcett was no longer in control. Subsequently, Fawcett confirmed the accuracy of this statement (Dr. Lohrasbe's report, page 6). 10. Fawcett describes the problems in more detail on page 5 and 6 of Dr. Lohrasbe's report: ...The preparation for the winter Olympics of February 2010 went back to at least a year prior, ... the winter before the Olympics had seen overall business in Whistler a bit lower than average.

Fawcett had learned from a sled dog company in Salt Lake City that the Olympics had adversely affected the business and as a result he advised Houssain that they had way too many dogs but was apparently assured by Houssain that they would be very busy during the Olympics, that Fawcett should do his job with the dogs, that he knew nothing about the business. When the Olympics came along, Fawcett's prediction about business apparently came true and Fawcett explains his discussions with Houssain and attempts to reduce the herd on page 6 of Dr. Lohrasbe';s report, 2 nd paragraph. 11.

On May 28, 2010, Fawcett and Coughlan attended the Vancouver office of the SPCA and met with a Senior Animal Protection Officer. At that meeting, Fawcett discussed issues within the company and asked for assistance in further placing remaining dogs. Fawcett also complained to the SPCA about the owner's management of the business and care of the dogs. He said Coughlan was stressed looking after the dogs. He advised he was having trouble reducing the numbers but that he was still looking at re-homing a number of dogs.

He suggested he might just drop off 100 dogs at the SPCA to which he was told by the SR Officer that in her opinion the dogs were not adoptable but that she would check with the Branch Managers. 12. At this May 28, 2010 meeting Fawcett was never asked as to how the herd had been reduced. He reiterated what Coughlan had indicated back in January that they did not have enough staff to look after all of the dogs. According to the SPCA, Fawcett complained that the owner treated it like a business and that the owner had told him to reduce the number of dogs.

Fawcett explained that he brought in the new owner as he needed money but that he felt the dogs were not receiving adequate care. He told the SPCA that Coughlan was

stressed looking after the dogs. He indicated a fear that the owner may find out he was talking to the SPCA. 13. We are told that Fawcett made the following additional comments at this meeting: • He was doing the best he could and most of the dogs were off tethers and the males were being neutered; • Fencing had been purchased and more pens were being built; • Dr.

Lane was treating the dogs for a scabies outbreak; • He had reduced the herd from 307 to 203 and the goal was to reach 160-170 dogs (there is no indication that Fawcett was asked how this was done); • He appreciated the assistance the SPCA had given in the past and he had learned a lot; • He wanted the meeting kept confidential; • He indicated he had concerns that the owner knew nothing about the dogs and that staff was not knowledgeable; • He told the SPCA he was going off on medical leave and that Coughlan would be responsible for all of the dogs. 14.

Following the May 2010 meeting, Fawcett sent the SPCA a medical report from Dr. Lane as he had indicated he would do. The SPCA subsequently did contact the owner who advised he wanted to surrender a number of the dogs to the SPCA but he was told they were not adoptable. 15. The SPCA became aware of a Worksafe BC Review Decision in January 2011, regarding an application by Fawcett for Post Traumatic Stress Syndrome. In furtherance of his application, Fawcett had filed a Statutory Declaration wherein he gave a graphic account of the cull he performed at Howling Dog Tours, Whistler on April 21 and 23 rd , 2010.

THE HISTORY OF THE WORKSAFE BC CLAIM 16. Fawcett first filed a claim to the Workers' Compensation Board, which operates as WorksafeBC, on May 17, 2010. At that time, he was claiming injury to his well being as a result of his reducing a herd of sled dogs by 100 animals. In this claim he was asked to describe the injury in detail. Under the heading "My Injury" his response was "My well being. I am now suffering from post traumatic stress disorder from the hell I had to go through". 17. On August 3, 2010, Fawcett was advised that his claim was denied.

Fawcett then requested a review of that Decision and in support of his request for a review, Fawcett filed a Statutory Declaration dated October 5th, 2010, wherein he provided additional evidence that had not been before the first adjudicator. On January 25, 2011, the Decision of the Review Panel was to allow his claim for benefits for PTSD. 18. Shortly after the release of the Review Decision, the public became aware of the details described by Fawcett of the cull of the sled dogs in April, 2010.

These facts included information that the responsible company was Outdoor Adventures Whistler and that there had been a dog cull performed by one of their employees. The document contained graphic details of the manner in which the dogs were culled. 19. The SPCA subsequently became involved and with the assistance of the RCMP, an investigation began into the dog cull which occurred April 21 and 23 rd , 2010. It was through that investigation that the SPCA obtained the Statutory Declaration of Fawcett that had been filed in support of his claim to WorksafeBC for PTSD benefits.

A copy of Fawcett's Statutory Declaration dated August 3, 2010 is attached as Exhibit 1. The subsequent excavation revealed that 43 adult dogs were buried in the mass grave and 9 suffered from the manner of death with the remaining causes of death being immediate by gunshot. 20. In his Statutory Declaration, Fawcett described that as part of his duties as an employee of a sled dog touring company, he had occasionally euthanized dogs.

He explained that in the past he had culled, at most, 4-5 dogs at a time and that the cull would be necessary due to old age, sickness, injury, unwanted puppies that the owner could not afford to keep. He explained he had the support of the local veterinarian, Dr. D. Lane. 21. He further explained that in the past he would take the dogs for a short walk in the woods and give them a meal to distract them while he performed the task. He explained he did this so as to provide a calm environment for the dogs as well as to keep them away from the general population so that the rest of the dogs would not be disrupted.

He explained that he would use a gun as it provided a quick, clean method that caused as little suffering as possible and the animal had no time to anticipate its death. 22. Fawcett goes on to detail his actions on April 21 and 23, 2010 explaining that he was attending to a task at the behest of the company to cull the herd significantly by approximately 100 dogs. He explained that the size of the cull and the time constraints meant that he had no choice but to attempt to euthanize dogs in full view of the other dogs who were also slated for euthanasia.

The details he provides of this cull are contained in paragraphs 10-25 of his Statutory Declaration. THE INVESTIGATION 23. The RCMP learned from various employees that there had been lots of discussion and talk about the cull between Fawcett, other employees and the owner in April 2010 and also concerning the future of Howling Dog Tours, Whistler, Inc. It was apparently discussed that there were too many dogs and the company was no longer a viable company due to a lack of sales. A herd reduction was required.

Fawcett advised in subsequent statements that he was to be in charge of this cull. 24. One of the employees, Richard Crittenden, told the investigators that he was aware of the pending cull as there was lots of discussion and talk about the cull between Houssain, Fawcett and himself. Crittenden advised of the financial concerns with this company due, in part, to two other dogsled operators opening businesses in the area. It was proposed that a number of old dogs would be euthanized as well as other problem dogs (anti-social dogs that would start fights with other dogs) and that they would try to relocate dogs.

Crittenden advised that as at February 2010 out of 300 dogs, there were only about 30 or 40 per day that would leave the kennel to run. 25. The RCMP also learned from another employee that there had been discussions that a number of old dogs and some problem dogs would be euthanized and that they would try to relocate other dogs. Problem dogs were described as anti social dogs that would often attack each other. 26.

Another employee advised that she was aware of the impending cull and the reason for it was to reduce the numbers because the dogs were running one day in five and they were insane because of it, pacing back and forth, stressed and fighting with each other. She advised that every dog that could be given away was given away. They managed to give away 75 dogs. The decision was made for the greater good because the dogs were stressed and fighting a great deal due to a lack of running. This employee advised that it was done to save the business. After the cull, the conditions of the dogs improved significantly. 27.

Coughlan was interviewed by the RCMP. He advised that he was aware of the cull but not aware of the details. He indicated a .22 calibre rifle was used and that Fawcett told him to wait at the end of the road to block access. Coughlan further advised that he carried a radio in case Fawcett shot himself. 28. The RCMP learned that Coughlan held a non restricted firearms possession and acquisition licence and that he had 2 firearms registered to him: a .22 calibre rifle (he advised this was used by Fawcett to perform the cull) and a 12 gage Maverick model shotgun.

Coughlan advised that these firearms were purchased by the company initially to ward off cougar attacks. He advised that the guns were kept in a locked gun safe in a trailer that had since been moved to Pemberton. A search revealed that Fawcett did not own any firearms nor did he possess a licence to obtain firearms. 29. Statements of other employees revealed that there were a number of dogs who were relocated out of province. Another former supervisor advised that she returned to work after the cull and found that 20-30 of the dogs were gone.

She advised she was aware of a decision to cull the animals although they were able to give away 75 dogs. She also advised Fawcett had mentioned he would be performing the cull to save the business and that the animals would be disposed of at the back of the kennel. She advised that she had never seen Fawcett deliberately try to prolong death in the past and that after the cull Fawcett said that everything that could have gone wrong went wrong. CONSULTATIONS WITH THE VETERINARIAN 30. It appears that Fawcett had consulted with Dr.

Lane on April 9, 2010 indicating that he had been tasked with reducing the herd from 300 to 150 and various options were discussed, including euthanizing. Dr. Lane advised he would not be capable of carrying out such a large cull. 31. Dr. Lane subsequently told the investigators that he had been the primary veterinarian for Howling Dog Tours for a number of years and that he had worked with Fawcett quite regularly. Dr. Lane told the investigators that Fawcett had worked with the SPCA to improve conditions and that Fawcett had always been concerned about the health of the pets. Dr.

Lane also advised that Fawcett worked with him to improve the husbandry conditions and the management of the company and the physical and mental well being of the dogs. He was very receptive to new ideas and tried to implement them. 32. Dr. Lane referred to late 2009 or early 2010 when Fawcett expressed some concerns to Dr. Lane that he felt that he was being under staffed and that he was no longer able to take good care of the dogs in the manner he was accustomed to. 33. Dr.

Lane also advised that he sensed frustration and helplessness from Fawcett at this time in terms of the lack of staffing in the company and that there wasn't as much time to give individual attention to his dogs. He sensed Fawcett was quite distressed by that and he talked about the dogs and that they could arguably be seized. Fawcett talked about reporting the bad conditions to the SPCA which Dr. Lane found significant as historically Fawcett had often disagreed with the SPCA's decisions. Dr.

Lane had indicated in the past that he himself had disagreed with some of the assessments made by the SPCA for example, that they were underweight (he felt they were better than average). In addition, Dr. Lane said that in the past he and Fawcett had disagreed with the SPCA's recommendations that some of the dogs be euthanized due to them exhibiting stereo typical behaviour. Dr.

Lane expressed to the investigators that he felt Fawcett must have felt desperate given he wanted to report the present conditions to the SPCA on this occasion notwithstanding his previous frustration and disagreement with them in their prior assessments. 34. Dr. Lane added that on April 9, 2010 he had another conversation with Fawcett in which Fawcett indicated that he had to drastically reduce the herd size from three hundred to one hundred and fifty. Dr. Lane said that they spoke briefly about euthanasia however Dr.

Lane expressed that you don't euthanize all of the dogs, instead you do whatever you can to re-home them. Dr. Lane told the investigators that he told Fawcett he wouldn't consider euthanizing them until all other avenues had been taken care of. Dr. Lane also expressed that euthanizing a large number of dogs takes quite a toll. 35. Dr. Lane advised that he did not speak to Fawcett about helping him euthanize the herd. However, Dr. Lane did advise that he could not euthanize more than 3 dogs a day because it was too emotionally draining for him.

He also recalled speaking to someone at the BCVMA about getting a contact at the SPCA to talk to Fawcett about re-homing the dogs. Dr. Lane advised that he gave Fawcett a few options including providing information about websites to find owners for the dogs.

36. Dr. Lane also told the investigators that he made a few calls to the SPCA and the Vet Medical Association to try to find contacts to re locate the dogs. Dr. Lane also felt that at least 10 dogs were unadoptable due to being geriatric and it is hard to place a geriatric arthritic dog. He described the choice with unadoptable dogs of euthanizing them yourself or sending them to the SPCA and make some other "poor soul" do it. Dr.

Lane also indicated that he presumed they were talking about a small number of dogs ultimately getting euthanized as he had knowledge that Fawcett had in the past put down small numbers of dogs and had found it hard. 37. Dr. Lane indicated that gunshot euthanasia is an acceptable form of euthanasia. The best method is to do it with smaller numbers at a time and to sedate the animals first. However, this requires mass amounts of sedatives and drugs to perform it this way. Once euthanized, the dogs would have to be transported off site to be disposed of due to the drugs in their bodies.

That would require the use of refrigerated trucks, all of which requires a substantial amount of money. This also requires the time and ability to administer the sedative through a vein. 38. Although Dr. Lane didn't discuss the actual method or the euthanizing of the animals with Fawcett, he told the investigators that if someone wanted to euthanize an animal, if he was not able to adequately restrain the animal and get an accurate shot, he would have to stop what he was doing. He stated "You don't do it in the presence of other dogs and you do not do it at the risk of a stray bullet injuring another dog.

And if things go wrong, you put your hands up and you say, this is inhumane — this needs to be stopped". 39. Following the April 9 th meeting he had with Fawcett, Dr. Lane became aware that batches of dogs were slowly being adopted out and that the local animal shelter had been contacted for assistance. 40. Dr. Lane advised that during the time he worked with Fawcett he found him to always be very concerned about the health of his pets — stressing that he commonly referred to the dogs as pets. Dr. Lane felt that Fawcett regarded them more as pets than as working animals.

He felt that Fawcett would make decisions in part due to emotional attachment and not purely based on finances. Dr. Lane did not see it as a purely working dog relationship. He also stated that Fawcett was very proactive in bringing the dogs in for treatment. 41. Dr. Lane noted an irony that, if a farmer needed to reduce a herd of cows by a significant amount, the slaughters in the slaughter houses don't always proceed in a humane fashion but people would not react the same as in this case. SPCA RESPONSE AND COMPANY KNOWLEDGE 42. In a statement following the media firestorm, the BC SPCA head of animal cruelty M.

Moriarty said that it is not uncommon for sled-dog tour operators in Canada to complete large culls. In

article in the Province newspaper on February 1, 2011, the SPCA indicated that "there are no specific regulations that govern the treatment of sled dogs. An owner may kill an animal legally in British Columbia as long as it is done humanely". 43. SPCA also stated they would have acted had it known the dogs were going to be slaughtered. But they added it is not the SPCA's responsibility "to take on their issues...to suddenly make a phone call and say, "I have 100 dogs that need placing; that's not an answer to their business operation's issues".

She added "If we had any indication they would have been executed we absolutely would have done something". But she added it's likely they would have still been euthanized. 44. The owner of the company, Outdoor Adventures Whistler and HDT, J. Houssain, declined to be interviewed by the RCMP. However, in an email to Fawcett in August 2009, he wrote that the financial situation with the company was dire and that all expenses must be discussed personally with him and that a new business plan must be put into place immediately. 45.

To our knowledge, the only public statement made by the owner of OAW was contained in an

article in the Pique Newspaper in February 2011. He was quoted as saying that although OAW owns HDT, operational control was left with the general manager. He further advised that he did not know anything about the manner in which the dogs were euthanized until he read it in the WCB report. He said he understood there was to be relocation and the potential euthanization of dogs and the expectation was that would happen in a proper and legal and humane manner. He said he was horrified about the execution style death and that he believed it would be done humanely. This is also reflected on OAW's website. 46.

As indicated above, in July 2010 the SPCA received a complaint from Fawcett about the health and welfare of the sled dogs. On July 16, 2010, the SPCA spoke to Houssain about the complaint at which time Houssain stated he wanted to surrender a number of dogs to the Society but he was subsequently advised that the dogs were not adoptable. FAWCETT'S BLOG 47. In a Blog website for Canadian Armed Forces PTSD Fawcett made comments that he carried out the cull on April 21 and 23, 2010 and that he placed Coughlan at the base of the road leading to the kennel to block traffic and as a safety measure to check on Fawcett.

He stated he was told the company would fold if he didn't take drastic action. He states he reluctantly agreed to the job as he had always euthanized the older and injured dogs himself. He advised he then set about the direct execution of 60 of his friends on day 1. He states: Some I missed, had to chase around with blood everywhere, some I had to slit their throats because it was the only way to keep them calm in my arms. 1 had one still alive in a pit I dug for a mass burial. I carried them all one by one so as to at least give them some kind of respect. Day 2 was no different.

THE EXCAVATION AND NECROPSY RESULTS 48. 0n May 5, 2011, a team organized by the BC SPCA began the process of exhuming the bodies of dogs from multiple grave sites. A total of 43 adult dogs and 11 puppies were exhumed. Another employee euthanized the puppies but Fawcett attended to their burial. Necropsy exams were subsequently performed with findings revealing that the following animals suffered from their injuries prior to death:

a. Female adult dog — 26C-NORA. The findings from the necropsy report revealed that Nora suffered two gunshot wounds. The first gunshot wound was not fatal. The bullet missed entering the brain area, travelling along the back of the skull, damaging a portion of the first vertebra and exiting behind the left jaw area. This gunshot wound may have stunned the dog but would not have resulted in death. The dog suffered severe blunt force trauma to the left side of her head and severe blunt force to the front of her head causing damage to her right eye.

The blunt force trauma injuries all occurred prior to the second fatal gunshot wound. We are told by Fawcett in paragraph 19 of his statutory declaration what may have occurred with Nora. Dr. Merck concludes that Nora may well have lived for 20 minutes or longer after the first gunshot wound. The dog would have suffered severe, extreme pain from these injuries. b. Female adult dog — 27C -SUZIE.

The findings from the necropsy revealed that Suzie suffered severe blunt force to the left chest and severe blunt force trauma to the right chest, severe enough to cause bruising on the heart, all of which occurred before fatal gunshot wounds. There was additional bruising encircling her neck which is consistent with severe trauma from a collar or leash wrapped around the neck. Also, there were three gunshot entrance wounds and one gunshot exit wound. The first of three gunshot wounds was to the eye and the left eye was left hanging out and was not fatal.

The bullet entered the left eye, missed entering the brain area, traveled through the cheek area and down, fracturing the lower jaw and before exiting which would have caused tremendous pain to the dog. Suzie would have suffered severe, extreme pain from these injuries. Fawcett describes the killing of Suzie in paragraph 12 of his Statutory Declaration. c. Adult Male — "Snap" 40A.This dog had 2 different injuries, both which would have been considered fatal. The first injury was a laceration to the ventral neck that severed both jugular veins.

From the amount of hemorrhage the dog survived a period of time after this laceration. The second injury was a gunshot wound to the head and death would have been instantaneous. However, it could not be determined which injury was the ultimate cause of death although it was stated there was a significant time delay between the 2 injuries. The professional opinion of Dr. Walton is that this animal suffered pain and distress prior to death. d. Male adult dog — 49C. The examination revealed that there were two gunshot wounds and the first gunshot wound was not fatal.

The bullet missed entering the brain area, traveling along the right side of the head, through the ventral neck missing major blood vessels, staying superficial and lodging in the ventral chest. This is consistent with the dog standing when shot. The hemorrhage associated with the head, neck and chest area indicate this dog survived for a significant period of time prior to death. e. Adult female — 51 C-Lexus. Bullet wound #1 entrance top of skull and exit lower left jaw. Bullet #1 path entrance from top skull to exit left side neck/throat. Bullet #2 entrance wound back of skull.

Fragments throughout skull — survival period several minutes. f. Female Dog — 55C This dog first suffered from a non-fatal gunshot wound to the head that fractured the right cheek bone and would have caused severe extreme pain from the injury. g. Female dog — 58A. Two non-fatal gunshot wounds to the knee and neck. The knee injury would have caused severe extreme pain as the dog would not have been able to walk on the left hind leg. The injury to the neck would also have been extremely painful.

The damage to the upper airway in the larynx/trachea area would have caused the dog to have difficulty breathing, inhaling blood into the airway. The extent of the bruising around the neck gunshot injury indicates this dog lived for a substantial period prior to death resulting in extreme severe pain prior to death. h. Adult female dog — Zena 60A. This dog suffered first from blunt force trauma to the jaw causing a large amount of bleeding. The gunshot wound to the head was not immediately fatal. It caused massive trauma to the neck area resulting in extensive hemorrhage.

The bruising seen around the entrance wound and in the neck area indicates the dog survived for a significant period of time after the gunshot resulting in severe, extreme pain from the injuries. Death could have resulted from damage to the brain or massive blood loss. i. Adult female dog — 65A. The first of 2 gunshot wounds was not fatal. It caused damage to the right lung lobes and fractured ribs. This dog would have suffered severe, extreme pain from these injuries and the dog would have been struggling to breathe. ALL of which is agreed to, this 22 nd day of November, 2012. Nicole J. Grègoire J.

Gregory Diamond Crown Counsel Counsel for Robert Fawcett