R. v. Berg, 2017 ONCJ 163

CITATION: R. v. Berg, 2017 ONCJ 163 DATE: February 16, 2017 ONTARIO COURT OF JUSTICE Central West Region Regina -and- Brian Lee Berg (in absentia) Proceedings conducted 13 January, 2017, at Norfolk County, Ontario Decision issued 16 February, 2017 Appearances: Wade, E. for the prosecution Statutes Considered or Cited: Ontario Society for the Prevention of Cruelty to Animals Act (OSPCA Act) Provincial Offences Act, R.S.O. 1990, c. P.33, as amended Cases Considered or Cited R. v. Podwinski [2014] O.J. No. 6644 R. v. Provo, (SCC), [1989] 2 S.C.R. 3 Decision of the Court 1.

For the reasons set out below, I impose the following penalties on the defendant: a. A fine of $250 on count one b. A fine of $250 on count two c. A fine of $500 on count three, which I will stay on condition that no successful appeal is brought to either conviction or penalty oncounts one or two. d. An Order of Prohibition from owning any snakes for a period of five years, and e. An Order for restitution in the amount of $2500. Background and Evidence 2. This is my decision on penalty in relation to this matter.

Following a trial conducted on 13 January, 2017, I convicted thedefendant in absentia for the following counts:

a. Failing to comply with prescribed standards of care to wit did fail to provide care necessary for an animal’s general welfare as prescribed by Ontario Regulation 60/09 of the Ontario SPCA Act section 2(3) contrary to Ontario SPCA Act

Section 11.1(1) b. Fail to comply with prescribed standards of care to wit did fail to provide food and water to an animal as prescribed by Ontario Regulation 60/09 of the Ontario SPCA Act section 2(1) contrary to Ontario SPCA Act

Section 11.1(1), and c. Being the owner of a brown and black boa constrictor did permit an animal to be in distress to wit failing to provide adequate food, water, and care for its general welfare contrary to Ontario SPCA Act

Section 11.2(2) 3 . The penalty provision in the OSPCA Act sets out the following: Offences 18.1

(1) Every person is guilty of an offence who, (

a) contravenes subsection 11 (5); (

b) contravenes or fails to comply with

section 11.1; (

c) contravenes subsection 11.2 (1), (2), (3), (4) or (5); (c.1) contravenes subsection 11.3.1 (1); (c.2) contravenes subsection 11.4.1 (2); (

d) contravenes subsection 13 (5); (

e) contravenes or fails to comply with an order of the Board; or (

f) knowingly makes a false report to the Society in respect of an animal being in distress. 2008, c. 16, s. 16 ; 2015, c. 10, s. 6 (1) . Penalty – individuals

(2) Every individual who commits an offence under clause (1) (a), (c.2), (d), (

e) or (

f) is liable on conviction to a fine of not more than $1,000 or to imprisonment for a term of not more than 30 days, or to both. 2008, c. 16, s. 16 ; 2015, c. 10, s. 6 (2) . Same

(3) Every individual who commits an offence under clause (1) (b), (

c) or (c.1) is liable on conviction to a fine of not more than $60,000 or to imprisonment for a term of not more than two years, or to both. 2008, c. 16, s. 16 ; 2015, c. 10, s. 6 (3) . Prohibition order

(6) If a person is convicted of an offence under clause (1) (

b) or (c), the court making the conviction may, in addition to any other penalty, make an order prohibiting the convicted person and, if the convicted person is a corporation, the directors and officers of the corporation described in subsection (5), from owning, having custody or care of, or living with any animal, or any kind of animal specified in the order, for any period of time specified in the order, including, in the case of an individual, for the remainder of the person’s life and, in the case of a corporation, forever. 2008, c. 16, s. 16 . Restitution order

(7) If a person is convicted of an offence under clause (1) (

b) or (c), the court making the conviction may, in addition to any other penalty, make an order that the convicted person pay the whole or any part of the cost to the Society of providing food, care or treatment to an animal that was the victim of the offence of which the convicted person was convicted. 2008, c. 16, s. 16 . 4 . The Prosecution seeks a penalty of $1500 per count, plus a prohibition order pursuant to subsection 6, as well as a restitution order pursuant to subsection 7. 5 . By way of background, the court found Mr.

Berg guilty of the above noted charges on the strength of the evidence of Ryan Huurman, an Ontario SPCA Agent. In the course of his duties, Mr. Huurman executed a warrant to enter a premise in Middleton Township, Delhi, Ontario, where he located two terraria. In one, he observed what he believed to be the skin or carcass of a snake heavily infested by maggots. In the other, he observed a “boa constrictor type snake”. The snake was apparently alive, however, had no water or food and appeared lethargic.

The Agent sought the assistance of a reptile handler and further observed that when the terrarium in which the snake was housed was opened and the snake handled, the snake did not act as would be expected of a healthy snake. Specifically, the snake did not rise up in anticipation of being fed and did not coil around the arm of the handler. 6 . The Agent observed an additional tank with shavings, which he believed to be where rodents would be kept as food for the snakes however, there were no rodents found. 7 . The snake was removed to the care of the Society.

Three days later, the Agent attended a detention facility where he believed the owner to be and met with that person [1] . He advised the person the reason for the visit and read him a caution. He identified the person as the defendant, and obtained a statement whereby the defendant admitted to owning the two snakes. Pursuant to a voir dire , the Court was satisfied that any statements made to the OSPCA Agent were voluntary.

The defendant advised that the snakes had stopped feeding some time earlier, that he sought no veterinary care for the snakes, and that he “didn’t have the stomach” to remove the maggot-infested terrarium.

8 . The Prosecutor did not tender any record for the defendant. 9 . In response to inquiries by the Court, the Prosecutor confirmed that steps available to the Agent, pursuant to section 14(1) [2] of the OSPCA Act were not taken. The Court was advised that the living snake was seized and cared for by the Society (presumably ss 14(1) (b). However, the Agent brought no application for an Order pursuant to subsection 14(1.1) [3] to authorize the Society to keep the animal.

Accordingly, there was no such authorization, nor was there an Order in relation to costs associated with caring for the animal (subsection 14(1.2) [4] , nor any consideration of an Order for return of the animal (subsection 14(1.3) [5] . The notice requirement is subsection 14(3) [6] was not satisfied as it was made orally and not in writing. 10 . As this was a trial in absentia , there is no evidence that the owner exercised any right to appeal to the Animal Care Review Board, as provided for in subsection 17(1) [7] . 11 .

The evidence did reveal however, that the defendant expressed significant distress when advised as to the possible penalties that could follow a conviction on one or more of the counts. It is unclear whether this flowed from a sense of remorse or resignation at the prospect of being convicted for something the defendant may have understood to be wrong. 12 . Since there is no defendant to speak to the issue of penalty, I am not prepared to treat the Prosecution submissions as joint. Therefore, I am required to determine the fit sentence based on general sentencing principles.

Specifically, I am required to consider both specific and general deterrence, in the circumstances of this case. 13 . Undoubtedly, allowing an animal to deteriorate to the point of death without proper attention is a grave matter. In this case, the defendant’s statement to the OSPCA Agent suggested that the snakes stopped eating and that he did not know why. This, together with the presence of the tank to house rodents as food to the snakes, suggests that to the point that the snakes stopped eating, the defendant had been providing nourishment for the snakes. 14 .

I do not know the age of the snakes, nor anything about their expected lifespan. Since the defendant did not attend the trial, I have no information about why the defendant did not takes steps to determine if the snake could rehabilitated or restored to healthy eating, nor any reason for not doing so. I am mindful that the defendant, at the time of the investigation, was incarcerated; again, I do not know why or for how long, nor do I know how long he remained in custody before the investigation began or after it was completed. 15 .

The evidence suggested that the defendant provided inadequate heat for these snakes described as tropical, however, I have no temperature readings to allow me to assess that evidence, nor do I have information about the temperature required for the well-being of the snakes. 16 . Finally, I had evidence that the snakes had no water and that the living snake responded well when water was rubbed on its skin. 17 .

Upon hearing the submissions as to penalty, I clarified that the conviction for the three counts related to the failure to provide adequate food and water, and for failing to seek out veterinary care for the animals. I was not relying on the evidence in relation to providing an appropriately temperate climate, given the lack of specific evidence as to the requirements for these particular animals. 18 . In preparing my decision and reasons for sentence, I reviewed reported cases, and in particular, the case of R. v. Podwinski . That case resulted in a monetary fine, incarceration as well as restitution.

That case dealt with the death of a dog, which would suggest some similarity with this case. However, it further featured a defendant who accepted funds to care for an animal on someone’s behalf, and misleading investigators as to the circumstances of the dog’s disappearance, neither of which arises in this case. 19 . Weighing all the information before me, I conclude that the fines and prohibition order set out above are appropriate. Although the provisions in

section 14 of the OSPCA Act after seizure of an animal in distress and need of care were not followed, and particularly the timely mechanism for seeking an order for paying costs, I have elected to make an order for restitution, so that the OSPCA is made whole for its expenses. 20 . Noting the significant restitution Order that forms part of this penalty and applying the principle of totality, I elect to impose a much lower fine than sought by the Prosecution, having regard to the entirety of the circumstances, including this being the first offence and the limitations on evidence as set out above. 21 .

Further, given the overlap between the facts upon which the conviction in count 3 and the first two counts are founded, while I am imposing a sentence, I am imposing a conditional stay of that sentence pursuant to the principles set out in R. v. Provo . In the event that the defendant is not successful in bringing an appeal from either conviction or sentence on the first two counts, then the conditional stay becomes permanent. Should the defendant bring a successful appeal in relation to counts 1 or 2, then the stay may be lifted.

Issued at Norfolk County, Ontario, February 16, 2017 _____________________________ His Worship Donald Dudar Justice of the Peace [2] 14.

(1) An inspector or an agent of the Society may remove an animal from the building or place where it is and take possession

thereof on behalf of the Society for the purpose of providing it with food, care or treatment to relieve its distress where, (

a) a veterinarian has examined the animal and has advised the inspector or agent in writing that the health and well-being of the animal necessitates its removal; (

b) the inspector or agent has inspected the animal and has reasonable grounds for believing that the animal is in distress and the owner or custodian of the animal is not present and cannot be found promptly; or (

c) an order respecting the animal has been made under

section 13 and the order has not been complied with. [3]

(1.1) A justice of the peace or provincial judge may make an order authorizing the Society to keep in its care an animal that was removed under subsection (1) if, (

a) the owner or custodian of the animal has been charged, in connection with the same fact situation that gave rise to the removal of the animal under subsection (1), with an offence under this Act or any other law in force in Ontario pertaining to the welfare of or the prevention of cruelty to animals; and (

b) the justice of the peace or provincial judge is satisfied by information on oath that there are reasonable grounds to believe that the animal may be harmed if returned to its owner or custodian.