R. v. Hurley, 2017 ONCJ 263

ONTARIO COURT OF JUSTICE CITATION: R. v. Hurley, 2017 ONCJ 263 DATE: April 5, 2017 COURT FILE No.: City of Sault Ste Marie Information: 0189 BETWEEN: HER MAJESTY THE QUEEN — AND — REBECCA HURLEY and ALBERT HURLEY Before Justice of the Peace J. G. McMahon Heard on: June 20, 2016; June 21, 2016; June 22, 2016; June 23, 2016; June 24, 2016; November 1, 2016, November 2, 2016; November 3, 2016; March 13, 2017. Reasons for Judgment released on April 5, 2017 David Didiodato............................................................................

Assistant Crown Attorney The defendant Rebecca Hurley............................................................. on her own behalf No appearance by or on behalf of Albert Hurley. JUSTICE OF THE PEACE J.G. MCMAHON: [ 1 ] On the 5 th day of March, 2015, the Ontario Society for the Prevention of Cruelty to Animals (“OSPCA”) removed 25 horses and one goat from 534 Case Road, in Sault Ste.

Marie, Ontario (“the Farm”), for the stated purpose of relieving the animals’ distress. [ 2 ] Albert Hurley and Rebecca Hurley were both subsequently charged with seven offences under the Ontario Society for the Prevention of Cruelty to Animals Act , R.S.O. 1990,

Chapter 0.36 (“ OSPCAA ”). All of the offences were alleged to have occurred on or about March 5, 2015. All of the counts in the Information state that the offences are in relation to horses. The seven counts can be briefly summarized as follows: Count #1 —causing horses to be in distress contrary to ss. 11.2(1) and 18.1(1) (

c) of the OSPCAA ; Count #2 —permitting horses to be in distress contrary to ss. 11.2(2) and 18.1(1) (

c) of the OSPCAA ;

Count #3—failing to provide horses with the care necessary for their general welfare as required by O. Reg. 60/09 s. 2(3) and contrary toss. 11.1 (1) and 18.1(1)(

b) of the OSPCAA; Count #4—failing to provide horses with adequate and appropriate food and water as required by O. Reg. 60/09 s. 2(1) and contrary toss. 11.1 (1) and 18.1(1)(

b) of the OSPCAA; Count #5—failing to provide horses with adequate and appropriate medical attention as required by O. Reg. 60/09 s. 2(2) and contraryto ss. 11.1 (1) and 18.1(1)(

b) of the OSPCAA; Count #6—failing to provide horses with adequate and appropriate resting and sleeping areas as required by O. Reg. 60/09 s. 2(5) andcontrary to ss. 11.1 (1) and 18.1(1)(

b) of the OSPCAA; and Count #7—failing to comply with an order made pursuant to s. 13 (1) of the OSPCAA contrary to ss. 13(5) and 18.1(1) (

d) of theOSPCAA. [3] Albert Hurley did not appear at the time and place appointed for the trial and the trial proceeded in his absence pursuant to s.54(1) (

a) of the Provincial Offences Act, R.S.O. 1990, c. P.33 (“POA”). Rebecca Hurley represented herself and attended the first part ofthe trial in June 2016, but she did not appear for the continuation of the trial in November 2016. The trial was completed in her absencepursuant to s. 54(1) (

a) of the POA. [4] When Rebecca Hurley did attend at the trial she objected to the proceedings and regularly challenged the jurisdiction of the court.She made a number of unsuccessful requests, including: a trial by jury; a common law court of record; the discharge of the matters; andthe return of her property (i.e. animals). Many of the positions she advanced can be characterized as “organized pseudo legal commercialargument” as explained in Meads v. Meads, [2012] ABQB 571 . She also challenged the qualifications of two of theprosecution’s expert witnesses on two voir dires.

However, she did not appear to complete the trial with the result that the she did notcross-examine any prosecution witnesses at the trial proper and she did not present any evidence in her defence. Therefore, the evidenceof the prosecution witnesses was unchallenged. [5] On March 13, 2017, I found Albert Hurley not guilty of all seven counts charged. I found Rebecca Hurley not guilty of the firstcount on the Information, but guilty of the six remaining counts. On that day, I committed to providing these written reasons. A. THE NATURE OF EX PARTE PROCEEDINGS—s. 54 of the POA [6] In R. v.

Bandito Videos Ltd, [1986] O.J. No. 2619 (Ont. Prv. Crt.) at para. 13, the court reminded us that an ex parte trial “…isstill a trial, with all its attendant burden of proof, formality and evidentiary requirements…”, including proof beyond a reasonable doubtof all the essential ingredients of the offence charged. The court also indicated that the judicial duty of care, attention and prudence ishigher where the defendant is not present at trial. [7] In R. v.

Jenkins, 2010 ONCA 278 , [2010] 99 O.R. (3d) 561 (C.A.), at paras. 27 and 31, the Court of Appeal for Ontarioconfirmed that ex parte proceedings carry an inherent risk for a miscarriage of justice and that the usual procedural and evidentiary rulesare to apply in such proceedings. It is therefore important to approach ex parte trials with prudence and with special attention to the rulesof evidence and the analytical framework to be applied to the evidence at trial. B. THE ANALYTICAL FRAMEWORK [8] In Wawanesa Mutual Insurance Co. v.

Axa Insurance (Canada), 2012 ONCA 592 , at para. 34, the Court of Appeal forOntario spoke of the essential elements of the purposive approach to statutory

interpretation: The purposive approach to statutory

interpretation requires the court to take the following three steps: (1) it must examine the words of

the provision in their ordinary and grammatical sense; (2) it must consider the entire context that the provision is located within (BellExpressview, at para. 27); and (3) it must consider whether the proposed

interpretation [page365] produces a just and reasonable result(Bapoo v. Co-Operators General Insurance Co. (1997), (ON CA), 36 O.R. (3d) 616, [1997] O.J. No. 5055 (C.A.), atpara. 8). [9] In Podolsky v. Cadillac Fairview Corp. 2013 ONCJ 65 , [2013] O.J. No. 581 (ONCJ), the court confirmed that theOSPCAA is a regulatory and public welfare statute and described the statute as follows, at para. 64: However, its primary focus remains fixed on animal health and welfare and the prevention of exploitation and abuse by pet owners andthose engaged in animal husbandry and the exhibition of animals.

The Act also addresses certain related duties of veterinarians.Significantly, prohibitory provisions in the Act distinguish between persons who own or care for animals and “persons” in general, amatter to which I soon return. [10] A review of the OSPCAA reveals a statute and associated regulations that impose different standards of care on differentcategories of persons with respect to different species of animals.

There are provisions governing the conduct of an owner, custodian orperson who has the care of an animal which, in my view, differ from the conduct expected of those who do not undertake suchresponsibilities. There are also provisions directed to those who keep wildlife in captivity. Finally, specific rules apply with respect tocertain animals such as marine mammals, primates and dogs that live primarily outdoors. [11] The differences in legislative focus within the scheme of the OSPCAA and the different language used in the provisions of thestatute and its regulations are relevant to a purposive approach to the

interpretation of the offences charged in this present case. Inanalyzing such distinctions we must be mindful of the principle of statutory

interpretation that Parliament does not speak in vain: see R.v. D.A.I., 2012 SCC 5 , [2012] 1 S.C.R. 149, at para. 31. [12] Even though Albert Hurley and Rebecca Hurley faced a number of different offences, in my view, they all share one commonfeature—they are all strict liability offences. In Podolsky, the court considered s. 11.2(1) of the OSPCAA to be a strict liability offence.For the reasons that follow, I concluded that ss. 11.1(1), 11.2(1), 11.2(2) and 13(5) are all strict liability offences. [13] First, all the offences charged carry a potential penalty of a term of imprisonment.

An absolute liability offence cannot include aterm of imprisonment: see R. v. Pontes (SCC), [1995] 3 SCR 44, at para. 26. Second, the language of the provisions donot contain the words “wilfully”, “with intent”, “knowingly” or “intentionally” which would signal the legislature’s intent to create a fullmens rea offence: see R. v. City of Sault Ste. Marie, (SCC), [1978] 2 S.C.R. 1299 at 1326 . Third, s. 11.2(1) employsthe term “cause” and s. 11.2(2) employs the term “permit”. In R. v.

City of Sault Ste Marie, at 1328, the court confirmed that these twoterms are a better fit for a strict liability offence rather than an absolute liability or a full mens rea offence. Fourth, the case law on thestatutory

interpretation of offences is clear—absent a clear contrary legislative intent, the regulatory offence is presumed to be a strictliability offence: see Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec inc., 2006 SCC 12 , [2006] 1 S.C.R. 420, atparas. 16 to 19. In my view, that presumption is not displaced with respect to ss. 11.1(1), 11.2(1), 11.2(2) and 13(5) of the OSPCAA.

a) Analyzing the strict liability offence [14] In a strict liability offence, the prosecution must prove each constituent element of the actus reus of the offence charged—beyonda reasonable doubt. However, the case law is clear—the prosecution does not have to prove any mens rea (i.e. mental element): see R. v.City of Sault Ste. Marie, at 1326. [15] The basis of fault or liability of the strict liability offence is mere negligence: see R. v. Wholesale Travel Group Inc., (SCC), [1991] 3 SCR 154.

The defence of due diligence is therefore available to the defendant, but it is the defendant whomust prove, on a balance of probabilities, that he or she was not at fault because he or she exercised due diligence in the circumstances(i.e. did not act in a negligent manner). In R. v. Wholesale Travel Group Inc., the court also confirmed that strict liability offences areconstitutional. Even though the imposition of a persuasive burden on the defendant means that a defendant could be found guilty evenwhere there exists a reasonable doubt (which runs contrary to the presumption of innocence as guaranteed by s. 11(

d) of the Charter)strict liability offences are saved by s. 1 of the Charter. [16] In practical terms, there are four principal ways by which a defendant can avoid conviction of a strict liability offence. 1. A defendant can avoid conviction where there exists a reasonable doubt with respect to at least one of the constituent elements of the

actus reus of the offence. Such a reasonable doubt can arise: where the prosecution fails to adduce sufficient evidence; where the defendant in cross-examination of prosecution witnesses raises a reasonable doubt; or where the defendant presents evidence that raises a reasonable doubt. 2. A defendant can avoid conviction where he or she can show, on a balance of probabilities, that he or she took all reasonable steps to avoid the particular incident (i.e. exercised due diligence in the circumstances). This is the first branch of the due diligence defence.

The defendant can also show on a balance of probabilities that he or she reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent. This is the second branch of the due diligence defence. At trial, evidence of due diligence is usually adduced by defence witnesses, but it may sometimes arise from the testimony of prosecution witnesses both in examination-in-chief and in cross-examination.

Section 80 of the POA preserves certain common law defences, such as necessity or officially induced error that may be available to a defendant. 4. Some provincial offences refer to an authorization, exception, exemption or qualification that may allow a defendant to avoid liability. Section 47(3) of the POA imposes the burden on the defendant to prove that such provisions operate in his or her favour. [ 17 ] At trial, the prosecution must also establish the jurisdiction of the court with respect to the proceedings.

There are two aspects to the jurisdiction of the court which are sometimes referred to as “date and time” and “location”. First, the prosecution will seek to establish the date and, on occasion, the time of the offence. Pursuant to s. 76 of the POA , proceedings must be commenced within six months of the date of the allegation or within the time specified in the statute creating the offence. Time can also be crucial for some offences like a municipal transportation by-law that prohibits left-hand turns during rush hour.

Second, the prosecution must establish that the alleged offence occurred within the territorial jurisdiction of the court as defined by s. 29 of the POA . Sometimes, location will be of particular relevance because of the nature of the specific offence charged such as a municipal zoning by-law that prohibits certain activities in a residential area. Therefore, “date and time” and “location” are not only important to the defendant seeking to identify the details of the allegations in order to make full answer and defence. C.

THE NATURE OF THE OFFENCES CHARGED [ 18 ] Rebecca Hurley and Albert Hurley faced four types of OSPCAA offences. Proper legal analysis requires a closer look at the nature of theses offences. Given that the offences are strict liability offences some attention must be focused on identifying the constituent elements of the actus reus of the offences.

a) s. 11.2

(1) No person shall cause an animal to be in distress. [ 19 ] The defendants are charged with contravening s.11.2(1) of the OSPCAA . They are also charged with contravening s.11.2(2). The nature of each offence is best explained by comparing and contrasting one to the other. For ease of reference, the provisions read as follows: s. 11.2

(1) No person shall cause an animal to be in distress.

(2) No owner or custodian of an animal shall permit the animal to be in distress. … [ 20 ] The term “distress” is defined in s. 1 of the OSPCAA as follows: “distress” means the state of being in need of proper care, water, food or shelter or being injured, sick or in pain or suffering or being abused or subject to undue or unnecessary hardship, privation or neglect;

[21] Application of the purposive approach to statutory

interpretation to the definition of “distress” confirms a very broad andinclusive concept drafted to encompass most, if not all, possible forms of harm to the health and welfare of an animal. The term “animal”is not defined in the OSPCAA or the regulations. Nonetheless, by any measure, including application of the purposive approach, there isno doubt that—a horse is an animal. [22] In Podolsky, at para. 75, the court concluded that the distinction between ss. 11.2 (1) and (2) is the product of legislative intent.

That conclusion is supported by the different language of the provisions—s. 11.2(1) would apply to all persons and speaks of causing(“cause”) distress whereas s. 11.2(2) would apply only to an owner or custodian and speaks of permitting (“permit”) distress. [23] The language of s. 11.2(1) imposes a clear standard of care on all persons—do not cause distress to any animal. In my view,application of the purposive approach to statutory

interpretation and the weight of authority supports the conclusion that the actus reus ofs. 11.2 (1) requires, inter alia, proof beyond a reasonable doubt that the defendant engaged in a positive act that resulted in “distress”. Anomission, failure to act or mere passivity are not sufficient to ground liability for this offence. [24] As a general rule there is no liability for failing to act. However, the legislature can and does regularly create statutory duties thatimpose obligations to act in defined circumstances. The Highway Traffic Act, R.S.O. 1990, c.H.8. imposes such a duty in s. 200(1)(

b) where the person in charge of a motor vehicle involved in an accident must “render all possible assistance”. The actus reusof such an offence would involve the omission or failure to act in accordance with the statutory obligation. In my view, the design andthe language of s. 11.2(1) do not impose a similar type duty or standard of care. [25] The provision does not impose a general duty upon the population at large to prevent distress to an animal or a general duty torelieve distress. As will be explained below—the OSPCAA imposes such duties on the owners and custodians of an animal by operationof s. 11.2(2).

The duty and standard of care created by s. 11.2(1) is more limited and requires an understanding of the meaning of theterm “cause” in a regulatory context. [26] The weight of legal authority views “cause” as requiring a positive act. In Astro Tire & Rubber Co. v. Western Assurance Co. (ON CA), [1997] 24 O.R. (2d) 268, the majority of the Court of Appeal of Ontario described “cause” as follows, atpara. 9: It is defined in the Shorter Oxford Dictionary as follows: "Cause ... 1. trans. To be the cause of; to effect, bring about, produce, induce,make".

It is a transitive verb which in its ordinary usage contemplates that someone or something brings about an effect. [27] In R. v. City of Sault Ste Marie, the Court confirmed “cause” and “permit” as troublesome terms that have generated much caselaw. The court went on to provide valuable insight into the differences between the terms, at 1329: The “causing” aspect centres on the defendant’s active undertaking of something which it is in a position to control and which results inpollution.

The “permitting” aspect of the offence centres on the defendant’s passive lack of interference or, in other words, its failure toprevent an occurrence which it ought to have foreseen. [Emphasis added] [28] In Podolsky the court, at para. 76, adopted a similar view with respect to the use of the terms “cause” and “permit” in ss. 11.2(1)and (2) of the OSPCAA: The former term, "cause", suggests some active role in the infliction of the prohibited harm while the latter, "permit", allows for afinding of culpability founded on mere passive participation. [29] In Alphacell Ltd. v.

Woodward, [1972] 2 All ER 475 at 483, Viscount Dilhorne identified three ways in which “cause” may arise:where a person intends to secure a particular result and does

an act to bring it about; where a person commits a deliberate act of whichthe natural consequence is that a certain result will follow, even where the person did not intend the result; and where a person acts in anegligent manner that brings about a result, even where the person did not intend the result. In my view, these three descriptions havevalue in illustrating “cause” as arising from positive acts as long as it is remembered that in the context of a strict liability offence, the

prosecution need not prove any mens rea and the defendant can advance a defence of due diligence. [30] In his submissions, the prosecutor referenced Black’s Law Dictionary, which he conceded appeared to point towards “cause” asbeing more positive action rather than passive acquiescence. He also indicated that “cause” would have a higher threshold than “permit”in terms of what is required of a person. However, he argued that in the case of domestic animals, which are dependent on humans fortheir care, “cause” could arise from an omission or failure to act.

In this last submission he did partly rely on Ontario Society for thePrevention of Cruelty to Animals v. Smith, [2015] O.J. No. 3880 (ONCJ), at para. 183. With respect, I disagree with the prosecutor’s lastargument. [31] First, as already discussed, the language of s. 11.2(1) is not sufficient to create a general duty to prevent or relieve distress.Second, the weight of legal authority with respect to the concept of “cause” does not align with the notion that you can “cause” byomission. Third, the purposive approach to statutory

interpretation requires that s. 11.2(1) be viewed within its entire context, includingthe scheme and other provisions of the OSPCAA. [32] As discussed, the OSPCAA imposes different duties of care on different categories of persons. In my view, under the OSPCAA,the person who voluntarily chooses to engage in the lawful activity of becoming an owner or custodian of an animal faces a greater dutyof care than the person who chooses a life without animals. The latter must not commit a positive act (i.e. “cause”) that results in distressto an animal.

The former must not “permit” the animal owned or in his or her custody to be in distress. An owner or custodian of ananimal can be convicted for causing distress pursuant to s. 11.2(1) but only where the prosecution has proven, inter alia, that the distressresulted from the commission of a positive act or acts by the owner or custodian.

In Podolsky, at para. 75, the court explained thedifferences between ss. 11.2(1) and (2) as follows: While the word "cause" may, depending on context, encompass conduct consonant with the term "permit", the Legislature has clearlydistinguished between the two concepts in s. 11 and circumscribed the compass of liability for those who do not own or have custody ofanimals.

Indeed, there otherwise would be no need for s. 11.2(1). [33] To make out the offence under s. 11.2(1), the prosecution must also prove—beyond a reasonable doubt--that the positive act oracts of the defendant resulted in “distress” as defined by s.1 of the OSPCAA. In other words, “causation” is a constituent element of theactus reus of the offence. [34] The case law shows that, in most cases, the issue of “causation” will not pose much difficulty for the trier of fact. For example,one need only think of the case where there are witnesses to an attack on an animal with resulting visible injuries.

However, there can becases where there are multiple defendants, multiple causes of distress, pre-existing conditions or intervening events that can pose legaland evidentiary challenges. It is also important to recognize that the concept of causation “…cannot be articulated with mathematicalprecision”: see R. v. Cribbin, [1994] O.R. (3d) 548 (C.A.). [35] In criminal law, the determination of “causation” is based in the common law and on statute. The criminal case law confirms thatthere are two components of “causation”: see R. v. Smithers, (SCC), [1978] 1 S.C.R. 506; R. v.

Nette, 2001 SCC 78, [2001] 3 SCR 488; R. v. Talbot 2007 ONCA 81 , [2007], 217 C.C.C. (3d) 415 (C.A.). Factual causation asks thequestion—how did the result come to be and what was the contribution of the defendant to that result? Legal causation asks the question—when, at law, is the defendant’s contribution to the result sufficient to hold him or her responsible? In R. v. Auto Body Services RedDeer Ltd. [2014] A.J. No. 839 (Alta Prv. Ct.) the court adopted the criminal law approach to “causation” in a regulatory matter.

Thecourt said, at para. 146: 146 The common law rule as stated by the Supreme Court of Canada in R v Smithers, (SCC), [1978] 1 SCR 506 is thatis the impugned conduct must be at least a contributing cause outside the de minimis range. As stated in R v Carver, this test "...remainsas an accepted formulation of the test for causation. It is clear that, in the absence of statutory language to the contrary, the 'cause' of anevent need not be the 'sole' or a 'substantial' cause of that event." [36] In R. v.

Nette, the majority of the Supreme Court of Canada rephrased the threshold to: whether the defendant’s actions were a“significant contributing cause” of the result? [37] To summarize, in addition to establishing the jurisdiction of the court over the proceedings, the prosecution must prove thefollowing constituent elements of the actus reus of s. 11.2 (1)—beyond a reasonable doubt: the identity of the defendant; that thedefendant is a person; that the animal was in “distress” as defined by s. 1 of the OSPCAA at the time of the alleged offence; that thedefendant engaged in a positive act or acts that constitute “cause”; that the positive act or acts of the defendant resulted in the “distress”(i.e. causation) to the animal.

[38] Finally, it merits noting that ss. 11.2 (6) and (7) contain a number of exemptions to the application of ss. 11.2(1) and 11.2(2). Additional exemptions are included in O. Reg. 62/09. As discussed, pursuant to s. 47(3) of the POA, the defendant carries the burden ofproving that such exemptions operate in his or her favour.

b) s. 11.2

(2) No owner or custodian of an animal shall permit the animal to be in distress. [39] This provision specifically imposes a duty and standard of care upon the owner or custodian of an animal. In my view, the term“permit” is much broader than term “cause” and the actus reus of s. 11.2(2) can be committed by act or omission. [40] The provision imposes a positive duty on the owner or the custodian of an animal to prevent the animal from falling into distressas well as a positive duty to relieve any distress whether or not the owner or custodian is to blame for the distress.

Therefore, the standardof care can be considered as more substantial as compared to the standard imposed by s. 11.2(1). [41] Understanding the term “permit” is essential to the proper assessment of the duty and standard of care arising from s. 11.2 (2). As already noted, in R. v. City of Sault Ste Marie, at 1329, the concept of “permit” was described as a “passive lack of interference” anda “failure to prevent an occurrence which it ought to have foreseen”. That meaning is echoed in the case law. [42] The Court of Appeal for Ontario has weighed in on the issue and helped to better define the concept of “permit”.

In R. v. RoyalCanadian Legion, [1971] O.J. No. 1673 (C.A.), at para. 22, the court accepted that “permit” meant “not to prevent”. In 1213963 OntarioLimited v. Alcohol and Gaming Commission of Ontario, [2009] ONCA 323 , at para. 3, the court concluded that “permit”required proof that the defendant knew or ought to have known of the problem or issue at hand. [43] In R. v. Bedard, [2009] O.J. No. 4720 (ONCJ), the court stated at para. 9: “Permit” is a broader term and does not embrace intent or recklessness. One may permit without being wilful or reckless, for example,simply by failing to take reasonable care.

Finally, as already noted, in Podolsky, at para. 76, the court described “permit” as “mere passive participation.” [44] The case law confirms that the concept of “permit” is very broad. In my view, it can manifest itself in numerous ways by eitheract or omission. In certain circumstances, the act of authorizing another person to engage in an activity can constitute “permit”. In othercircumstances, to passively standby, to allow, to fail to act to prevent foreseeable harm or failing to remedy existing harm could alsoconstitute “permit”.

Each case will turn on its facts, but it is clear that the use of the term “permit” in s. 11.2(2) imposes a significantduty of care upon an owner and a custodian of an animal. [45] “Causation” is also a constituent element of the actus reus of s. 11.2(2). The prosecution must prove—beyond a reasonabledoubt—that the acts or omissions of the defendant resulted in the animal being in “distress”. The issues already discussed with respect to“causation” and s. 11.2 (1) would apply to s. 11.2 (2) and need not be repeated.

It should also be noted that an owner or a custodian mayavoid liability under s. 11.2(2) if he or she qualifies for one of the exemptions listed in ss. 11.2 (6) and (7) or O.

Reg. 62/09. [46] To summarize, in addition to establishing the jurisdiction of the court over the proceedings, the prosecution must prove thefollowing constituent elements of the actus reus of s. 11.2 (2)—beyond reasonable doubt: the identity of the defendant; that thedefendant was an owner or custodian of the animal at the time of the alleged offence; that the animal was in “distress” as defined by s. 1of the OSPCAA at the time of the alleged offence; that the defendant’s acts or omissions constitute “permit”; and that the acts oromissions of the defendant resulted in the “distress” (i.e. causation) to the animal.

c) s. 11.1

(1) Every person who owns or has custody or care of an animal shall comply with the prescribed standards of care, and the prescribed administrative requirements, with respect to every animal that the person owns or has custody or care of. [ 47 ] This provision imposes a specific statutory duty upon those who own an animal or have custody of an animal or care for an animal. It should be noted that “prescribed administrative requirements” were not at issue in this trial. [ 48 ] In my view, the actus reus of this offence may be committed by act or omission. A person may perform

an act that is contrary to a standard of care or a person may omit or fail to perform a duty required to meet a standard of care. Both situations can result in legal liability. [ 49 ] At first glance, this provision may appear to be relatively straightforward as compared to distinguishing between the meanings of “cause” and “permit”. However, the provision carries its own complexities. There are six principal issues that merit discussion. [ 50 ] First, there are a number of exemptions to the application of this provision (e.g. see ss. 11.1 (2) and (3)).

As already discussed, pursuant to s. 47(3) of the POA , the defendant carries the burden of proving that such exemptions operate in his or her favour. [ 51 ] Second, s. 11.1(1) does not set out the prescribed standards of care. Those standards are established by regulation, notably O. Reg. 60/09 , which is entitled, “Standards of Care and Administrative Standards”. The regulations set out both basic standards of general application as well as specific standards that apply to certain animals such as primates and marine mammals.

There are no specific standards governing the care of horses—the basic standards, as set out in O. Reg. 60/09 s.2 , would therefore apply. In the present case, the defendants are charged with failing to meet four standards of care under O. Reg. 60/09, notably ss. 2(1) , 2(2) , 2(3) and 2(5) . [ 52 ] Third, the basic standards of care must always be individualized to the particular animal at issue in its particular circumstances. This individualized approach is mandated by O. Reg. 60/09 s. 1(4) , which states: 1

(4) A requirement that a standard of care be adequate and appropriate or necessary is a requirement that the standard of care be adequate and appropriate or necessary to the specific animal, having regard to its species, breed and other relevant factors. [ 53 ] Such an individualized approach is likely the product of necessity because it would represent a herculean task to attempt to draft standards for each species of animal to cover every circumstance that could arise.

There is no doubt that such an approach will sometimes result in a shifting duty of care depending on the changing circumstances of a particular animal over time (e.g. illness, injury, weather, age etc...). Therefore, those who own or have custody or care of an animal must employ constant vigilance to ensure compliance with the applicable standards of care. [ 54 ] Fourth, industry standards are not legislated or prescribed standards. The appropriate standard of care will be defined by the circumstances of the particular animal at issue.

In other words, the prosecution must always prove—beyond a reasonable doubt—the specific standard of care owed to the particular animal in its particular circumstances as well as the defendant’s breach of that standard. On occasion, an industry standard may be proven to be the appropriate standard of care, but that conclusion is never an automatic. [ 55 ] Fifth, given the variety of animals and their different needs, trials involving standards of care will frequently involve expert testimony.

Oftentimes, experts will use industry standards of care as a basis or resource to support their expert opinion on the appropriate standard of care in the circumstances of the case. [ 56 ] Sixth, with respect to s.11.1 (1), the prosecution need not prove that the breach of the standard of care caused harm or distress to the animal. Proof of a breach of the applicable standard of care, inter alia , is sufficient.

In other words, “causation” of harm or distress is not a constituent element of the actus reus. [ 57 ] To summarize, in addition to establishing the jurisdiction of the court over the proceedings, the prosecution must prove the following constituent elements of the actus reus of s. 11.1 (1)—beyond a reasonable doubt: the identity of the defendant; that the defendant owned, had custody or care of the animal at the time of the alleged offence; the prescribed standard of care (and/or administrative requirements) applicable to the particular animal in the animal’s particular circumstances at the time of the alleged

offence; and the defendant’s failure to comply with said standard of care (and/or administrative requirements). d) s. 13 (5) Every person who is served with an order under subsection (1) shall comply with the order in accordance with its termsuntil such time as it may be modified, confirmed or revoked and shall thereafter comply with the order as modified or confirmed. [58] The OSPCAA imposes a statutory duty on an owner or custodian of an animal to comply with an order issued by an OSPCAinspector or agent.

Pursuant to s. 13(1) of the OSPCAA such an order can direct an owner or custodian to take action to relieve thedistress of the animal or to bring the animal to a veterinarian for examination and treatment. The content of the order will define whatthe owner or custodian must do. In my view, the actus reus of the offence is committed, inter alia, by the omission or failure to complywith the requirements of the particular order. [59] As a general rule, at a trial of an allegation of failing to comply with an OSPCA order, the defendant cannot escape liability bychallenging the validity of the order.

The doctrine of collateral attack of an order will be a barrier to such a challenge: see Canada(Attorney General) v. TeleZone Inc., 2010 SCC 62 , [2010] 3 S.C.R. 585, at paras. 60-68. Under this doctrine, a person isexpected to follow the prescribed route to appeal an order and will be generally prohibited from questioning the validity of the order inother proceedings. In this case, Rebecca Hurley would have exercised her right of appeal pursuant to ss. 17 and 18 of the OSPCAA: seeHurley v.

Ontario Society for the Prevention of Cruelty to Animals, [2015] ONSC 7784 (SCJ). [60] Application of the doctrine of collateral attack of an order does not, however, relieve the prosecution from having to prove thatthe order was in force and effect at the time of the alleged breach.

The prosecution must also establish that the order was served inaccordance with s. 20 of the OSPCAA. [61] To summarize, in addition to establishing the jurisdiction of the court over the proceedings, the prosecution must prove thefollowing constituent elements of the actus reus of s. 13(5)—beyond a reasonable doubt: the identity of the defendant; that an orderunder s. 13(1) of the OSPCAA against the defendant was in effect at the time of the alleged offence, including the terms of the order;service of that order upon the defendant set out s. 20 of the OSPCAA; and the failure of the defendant to comply with the terms of theorder.

D. THE ANALYSIS

a) The background [62] At trial, the prosecution presented five witnesses. Three of the five were qualified to provide expert testimony: Dr. Keith Good, aveterinarian (expertise—equine care); Inspector T. Lapping of the OSPCA (expertise—care and management of horses); Dr. BruceRobertson, a veterinarian (expertise—care, management and medical care of horses). Dr. Good’s testimony provided historical contexton the genesis of the charges before the court, but it was of limited relevance because Dr. Good ceased to be involved in theinvestigation as of early May, 2014.

The charges before the court were alleged to have occurred some 10 months later, on or aboutMarch 5, 2015. In contrast, Inspector Lapping was involved from the beginning to the end of the investigation and provided testimonywith respect to the evolution of the investigation and her assessments of the health and welfare of the horses at different points in time. [63] As is often the case with expert witnesses—they did not agree in every detail. For example, Dr. Robertson did not take issue withthe quality of the hay at the Farm in March 2015 whereas Inspector Lapping thought it was of poor quality.

I also noted that on the issueof housing horses, Dr. Robertson expressed an opinion that with proper supports horses do better outside and that housing was not asignificant source of “distress” in the present case. However, any disagreements were few in number and did not in any way detract fromthe fact that Inspector Lapping’s and Dr. Robertson’s expert opinions were predominantly in sync with respect to the health and welfareof the animals and that the horses were in distress on March 5, 2015.

I found the evidence of the expert witnesses to be cogent, reasonedand helpful to the court. [64] On May 2nd, 2014, Inspector Lapping, in the company of Dr. Good, executed a warrant for the purpose of determining whetherthere were any animals in distress at the Farm. The warrant was issued pursuant to s. 12(1) of the OSPCAA. Following an assessment ofthe horses at the Farm, Inspector Lapping issued, pursuant to s. 13(1) of the OSPCAA, orders to Rebecca Hurley with respect to the care,treatment and welfare of the horses. What followed was some 10 months or so of back and forth between the OSPCA and RebeccaHurley.

[ 65 ] In those 10 months, some of the orders were modified, two were revoked, but most were the object of repeated extensions of the time for compliance. The evidence is that the OSPCA wanted to work with Rebecca Hurley to help her remedy the health issues with respect to the horses and to help her improve the care being provided. Along the way, it appears that there were some improvements.

Inspector Lapping testified that in November 2014 the body condition of the horses had improved and that “Princey’s” breathing issues had improved. [ 66 ] There was also evidence that the OSPCA was sensitive to Rebecca Hurley’s circumstances namely: that there were real difficulties in securing a veterinarian to attend at the Farm; that she had retained the services of a veterinarian, but that veterinarian had cancelled; and that she was apparently under some financial constraints. To that end, in late December 2014, OSPCA Senior Inspector L.

Michaud would have tried to assist Rebecca Hurley secure the services of Dr. Rocheleau, a veterinarian from Espanola, for the purpose of providing dental services for the horses. [ 67 ] However, after 10 months or so of the back and forth and repeated extensions of the time for compliance with the issued orders, Inspector Lapping applied for and was granted a warrant pursuant to s. 12(1) of the OSPCAA . The warrant was executed on March 2, 2015.

In her testimony Inspector Lapping described a deteriorated situation with respect to the health and welfare of the horses, on that day. [ 68 ] Inspector Lapping’s concerns were translated into a further s. 12(1) warrant application. The warrant was issued. It was executed on March 5, 2015. On that day, Inspector Lapping was accompanied by Senior Inspector Michaud (OSPCA), Inspector N. Driscoll (OSPCA), Officer A. Patterson (OSPCA), Dr. Robertson and Dennis Walker. Mr. Walker assisted with the handling of the horses. Local police would have also been involved to ensure the peace.

Following an assessment of the animals, Dr. Robertson recommended the removal of the 25 horses and one goat to relieve their distress. On March 5, 2015, those animals were removed from the Farm pursuant to s. 14(1) of the OSPCAA .

b) Findings [ 69 ] With the exception of Dr. Good, four of the five prosecution witnesses were present on the Farm on March 5, 2015. They all testified as to their observations on that day. In addition to their observations, Inspector Lapping and Dr. Robertson provided the court with their expert opinions.

In my view, the totality of the admissible trial evidence supports the following findings. [ 70 ] On March 5, 2015, Rebecca Hurley was subject to a number of orders made pursuant to s. 13(1) of the OSPCAA , which can be briefly summarized as follows: i. to have “Lady”, a horse, examined by a veterinarian (order of June 4,2014); ii. to take a pooled horse fecal sample for analysis and deworm according to findings (order of May 2, 2014); iii. to have the horses’ hooves trimmed by an experienced “farrier” and return them to an appropriate length and shape (order of May 2, 2014); iv. to have the teeth of 19 horses floated by a veterinarian to correct dental problems and abnormalities (order of June 4, 2014); v. to have “Princey”, a horse, examined by a veterinarian for respiratory issues and follow recommended treatment (order of June 4, 2014); and vi. to provide all the horses with free choice access to good quality hay at all times (order of June 4, 2014).

[ 71 ] The evidence at trial supports the following findings with respect to the conditions of the animals on the Farm on March 5, 2015: i. The twenty-four horses in the two paddocks did not have access to water. The water troughs were frozen. These horses were dehydrated as evidenced by: diminished saliva production and infrequent urination. Senior Inspector Michaud counted only twenty-five urine stains in the snow for the twenty-four horses on that day. ii. The twenty-four horses in the two paddocks did not have access to sufficient food to meet their needs.

There was no hay in the paddock which held twenty horses. There were remnants of hay in the paddock which held four horses. It must be stated that Inspector Lapping testified that on March 2, 2015, she observed some hay in both paddocks but not an excessive amount. There was evidence that there were at least five large bales of hay on the Farm, but the hay was near the barn and not accessible to the horses. The expert evidence was that horses also require access to salt in various amounts, but none was observed to be available to the horses on that day. iii.

The horses were acting in a lethargic manner and the horses had thinned in comparison to the improvements in body condition noted by Inspector Lapping in November 2014. A significant number of the horses (in the paddocks) were observed to be eating each other’s manure. According to the experts, on occasion, a horse may eat manure, but Inspector Lapping said she had never witnessed it on such a scale. Dr. Robertson described it as abnormal. iv. On March 5, 2015, Dr. Robertson would have examined the majority of the horses on the Farm.

All of the horses examined presented with dental issues that required assessment and treatment. He found no evidence of recent dental care, including floating of the teeth. Given a horse’s teeth grow continuously, the teeth must be filed down (i.e. floated) to permit proper chewing, eating, digestion and to avoid injury to the inside of the horse’s mouth. v. The horses had varying degrees of overgrown, damaged and irregular shaped hooves.

Given that hooves grow continuously they must be regularly trimmed by a farrier to ensure a proper size and shape to avoid discomfort for the horse and the development of more serious foot health-related problems. In his testimony, Dr. Robertson candidly admitted that hoof care was not his area of expertise. On this issue, I relied mostly on the expert opinion of Inspector Lapping. vi. The experts confirmed that a horse requires appropriate bedding and a resting and sleeping area. This was not provided to the horses on March 5, 2015. It was a cold winter day with snow on the ground.

There was no bedding in either paddock where the horses could lie down or rest. The ground in one of the paddock shelters was covered with frozen manure. The shelter in the paddock with the 20 horses could not accommodate more than 3 horses lying down at the same time. vii. “Lady”, a horse, was in need in of pressing medical attention. The horse was suffering from a dental abscess that had formed a “draining tract” which means it was draining out of her left mandible though a sore on the skin. The evidence was that it was causing pain. This medical issue was at least 10 months old.

On May 2 nd , 2014, Inspector Lapping ordered Rebecca Hurley, pursuant to s. 13(1) of the OSPCAA to clean the wound under “Lady’s” chin and provide appropriate wound care. On June 4 th , 2014, the order was modified to have “Lady” examined by a veterinarian for, inter alia , injury to the lower jaw on the left side. On November 5 th , 2014, Inspector Lapping had noted that the wound was still present and it was emitting a bad odour. I also found that “Lady” required dental treatment for other issues. viii. “Tom”, a horse, had a wound behind the left ear that was causing pain.

The wound was likely caused by the horse’s halter. Dr. Robertson estimated the age of the wound as approximately 3 to 5 days old, but possibly older. The wound was noticed by Inspector Lapping on March 2 nd , 2015. “Tom” also required dental care and hoof care. ix. There was one stallion in the barn that was in fair body condition but it did not have access to sufficient water. Inspector Lapping reported the stallion’s stall to be unsanitary on March 2, 2015 because of a build-up of manure on the floor of the stall. However, there was little evidence on the sanitary condition of the stall on March 5, 2015. x.

On March 5, 2015, Senior Inspector Michaud observed that a goat on the Farm had no food or water. The little amount of evidence about the goat, notably its reported poor body condition, was weakened by the fact that none of the witnesses were qualified at trial to give expert testimony on goat care. It should be noted that all the counts in the Information are particularized to specifically reference horses. None of the counts speak about a goat.

[ 72 ] From May 2014 to February 2015, Rebecca Hurley had numerous interactions with the OSPCA with respect to the OSPCA orders as well as the care and the health of the horses on the Farm. In that period of time, Inspector Lapping observed Rebecca Hurley and the horses on the Farm on a number of occasions.

This evidence and the totality of the trial evidence amply supports the following conclusions with respect to Rebecca Hurley: she was the owner of the horses; she kept custody of the horses on the Farm; she was responsible for and controlled the care for the horses; she clearly had knowledge of the medical, health and welfare problems of the horses on the Farm; and with respect to “Tom” she reasonably ought to have known of the injury behind the ear.

c) Conclusions with respect to the evidence [ 73 ] There was substantial trial evidence with respect to the problems in the care provided to the horses and the health and welfare of the horses. That evidence clearly supports the following conclusions: i. There was substantial evidence, beyond a reasonable doubt, to confirm multiple failures to comply with the orders issued by Inspector Lapping to Rebecca Hurley, including the failure: to have “Lady” seen by a veterinarian; to have the horses’ hooves trimmed; to have the teeth of 19 horses floated; and to provide free choice access to hay.

However, in my view, the same cannot be said of the order related to “Princey” and the order related to the testing of pooled fecal samples. Even though these last two orders were extended on January 30, 2015, from which non-compliance could be inferred on that day, I did not find that the totality of the evidence, with respect to these two orders, rose to the required standard—proof of non- compliance beyond a reasonable doubt on or about March 5, 2015. There was simply insufficient evidence before the court with respect to these two orders. ii.

The evidence clearly established, beyond a reasonable doubt, that the horses were in “distress” on March 5, 2015. Without repeating all of the findings listed above, I would simply highlight the most substantive conclusions. The horses were in a state of being in need of proper care with respect to dental care and hoof care. The horses were in need of both food and water. The horses “Tom” and “Lady” were in need of medical care. “Tom” was injured. “Lady” was sick with an untreated abscess. Both were in pain. Therefore, the OSPCAA definition of “distress” was made out on a number of fronts. iii.

There was also ample evidence, beyond a reasonable doubt, that there were multiple failures to comply with the prescribed standards of care for the horses on March 5, 2015. This was not a case where it was necessary to delve into the finer details of the evidence, the expert testimony—or into the industry standards to which the experts made occasional reference (i.e. the Code of Practice for the Care and Handling of Equines 2013 -National Farm Animal Care Council)—to define the applicable standards of care and to confirm failures to comply.

The breaches of the standards were readily apparent and clearly supported by the evidence. Again, I will simply highlight the more substantive conclusions drawn from the evidence. On March 5, 2015, there was a failure to provide: the horses with adequate food and water as required by O. Reg. s. 2(1) ; “Lady” and “Tom” with adequate medical attention as required by O. Reg. s. 2(2) ; the horses with adequate dental care (i.e. medical attention) as required by O. Reg. s. 2(2) ; and the horses in the paddocks with adequate resting and sleep areas as required by O. Reg. s. 2(5) .

There was also clear evidence of a failure to provide care necessary for the general welfare of the horses as required by O. Reg. s. 2(3) . Application of the purposive approach to statutory

interpretation to the term “general welfare” clearly points to a broad and inclusive term that would encompass all of the standards of care noted above and more. In my view, it would include and capture all that is required to meet an animal’s needs from the most basic (e.g. food, water, medical, etc. …) to the more specific requirements for stimulation, activity and socialization of the particular animal at issue. By operation of O. Reg. 60/09 s. 1(4) the standard of care associated with the term “general welfare” must also be individualized to the particular circumstances of the animal at issue.

In the present case, the failure to meet this standard was clearly established by the findings and conclusions already confirmed above such as the failure to provide the horses with regular hoof care and dental care. iv. The trial evidence was also sufficient to establish—beyond a reasonable doubt—the jurisdiction of the court over the proceedings and the identity of the co-defendants Albert Hurley and Rebecca Hurley.

d) The case against Albert Hurley [ 74 ] In his submissions, the prosecutor took the position that I should acquit Albert Hurley on count #1 and on count #7 of the Information, but that I should find him guilty with respect to the remaining five counts. I agreed with the prosecutor’s conclusions with respect to counts #1 and #7 and made findings of not guilty on both counts. However, I disagreed with his position with respect to the five remaining counts.

After reviewing and analyzing the totality of the evidence, I determined that Albert Hurley was also not guilty of counts #2, #3, #4, #5 and #6. [ 75 ] In my view, the prosecution had not adduced sufficient evidence to prove — beyond a reasonable doubt — the actus reus for the five counts for which it sought conviction. More specifically, with respect to count #2 — an offence under s. 11.2(2) — I found there to be insufficient evidence to establish that Albert Hurley was an owner or a custodian of the horses on the Farm.

With respect to counts #3, #4, #5 and #6 – offences under s. 11.1(1) – I found the evidence to be insufficient to establish that Albert Hurley owned the horses or had custody of the horses or cared for the horses on the Farm. [ 76 ] The trial evidence with respect to Albert Hurley was quite limited. In addition, that limited evidence faced three challenges. First, no voir dire was requested or held with respect to the voluntariness of any statements made by Albert Hurley to persons in authority.

This raised an obvious admissibility issue. [ 77 ] Second, Inspector Lapping and Senior Inspector Michaud testified as to information about Albert Hurley that would have come from Rebecca Hurley. Out-of-court statements by one co-defendant about another co-defendant proffered for the truth of their content is presumptively inadmissible as hearsay. The prosecution did not advance any applicable exceptions to the hearsay rule.

Therefore, that evidence was inadmissible. [ 78 ] Third, Inspector Lapping and Senior Inspector Michaud both testified as to their knowledge of the circumstances of Albert Hurley, but they did not necessarily explain how they acquired that knowledge or specify with any detail the timeframe in which those circumstances would have existed, including whether they knew those circumstances to exist at the time of the alleged commission of the offences charged.

How and when an investigator obtains information about a defendant is a relevant consideration in the assessment of that evidence, especially where the investigators, as in this case, had already stated that some their information was sourced from the co-defendant. Nonetheless, I found this evidence to be admissible.

The issue was one of weight to be attributed to the evidence and that, in my view, could only be and was only considered within the context of all of the admissible evidence. [ 79 ] I note the challenges with respect to the admissibility of the evidence because I’m duty-bound to be vigilant to ensure that in ex parte proceedings—all of the rules of evidence are observed. However, as a practical matter, the case of Albert Hurley was not one to be made or to fail on the question of admissibility.

In my view, even if all of the evidence of the prosecution witnesses was admissible, I would still be left with a reasonable doubt as to his guilt. In other words, the evidence with respect Albert Hurley was simply insufficient to prove the actus reus of the offences—beyond a reasonable doubt—even if the inadmissible was somehow made admissible. [ 80 ] Three prosecution witnesses provided evidence about Albert Hurley. Dr. Good testified as having known Rebecca Hurley for some 20 years. She would have been a client.

He referred to the Farm as Albert and Rebecca Hurley’s Farm and did state that it was his understanding, in May 2014, that Rebecca Hurley and Albert Hurley resided on the Farm. Dr. Good identified Rebecca Hurley as the primary caregiver of the horses. He did not identify Albert Hurley as being on the Farm on May 2 nd , 2014—the day Dr. Good was on the Farm in execution of a s. 12(1) warrant. Dr. Good was not involved in the investigation after May 2014. [ 81 ] Senior Inspector Michaud testified that she had some past experience with Rebecca Hurley and Albert Hurley.

She stated she had met Albert Hurley, but not on the Farm. On March 5, 2015, the only occasion she would have been on the Farm—Albert Hurley was not present. The senior inspector also stated that Albert Hurley resided on the Farm and cared for the property. However, in my view, she did not specify how or when she had acquired that knowledge. She also failed to specify the time period in which she knew Albert Hurley to reside on and to care for the Farm, notably whether it was at the time of the alleged offences.

I did note that the senior inspector testified about going through the house located on the Farm when the warrant was executed on March 5, 2015, but she made no mention of any indicia of Albert Hurley residing there. [ 82 ] Inspector Lapping had been on the farm on a number of occasions in 2014 and 2015. However, she never saw Albert Hurley on

the Farm. She never met him, but she did speak to him on the phone. For example, she testified that on September 16, 2014 she called Albert Hurley’s cell phone and spoke to him. [ 83 ] I accept the prosecutor’s position that despite the absence of a voir dire on the issue of voluntariness, I can accept the inspector’s evidence of a cell phone discussion taking place, but without going into any statements allegedly made by Albert Hurley. To that end, I find that Inspector Lapping called Albert Hurley’s cell phone for the purpose of obtaining information about a veterinarian’s attendance at the Farm.

The inspector testified to the effect that she did not receive all the needed details from the discussion. Following the phone call, she sent an e-mail to Rebecca Hurley to get the information she was seeking. [ 84 ] Inspector Lapping also testified that Albert Hurley was a truck driver who worked off the Farm and who was not often on the Farm. She did not specify when or how often he would be at the Farm. She also did not confirm how and when she acquired that knowledge. In his submissions, the prosecutor did point out that none of the s. 13(1) OSPCA orders were issued to Albert Hurley.

By operation of that provision, an order is to be made to the owner or custodian of the animal. The orders before the court were all issued to Rebecca Hurley. Even though the inspector stated she sent orders by registered mail to Rebecca and Albert Hurley, there was no documentary evidence before me to establish Albert Hurley having received, claimed or signed for any such mail. Finally, the notice of the removal of the animals on March 5, 2015, was also issued solely to Rebecca Hurley.

By operation of s. 14(3) of the OSPCAA a notice is to be served on the owner or custodian. [ 85 ] In his submissions, the prosecutor advanced the position that from the trial evidence, including the circumstantial evidence, I could draw appropriate inferences and conclusions about Albert Hurley residing on the Farm and Albert Hurley being an owner of the horses or a custodian of the horses or having custody of the horses or having care of the horses on the Farm.

More specifically, he advanced the position that there existed linkages among: the evidence of Albert Hurley residing on the Farm; the fact that the horses kept on the Farm were domesticated animals; and Albert Hurley’s resulting responsibility for the horses. I undertook the analysis suggested by the prosecutor, but arrived at the conclusion, that in this case, the admissible evidence was not sufficient to ground findings of guilt. [ 86 ] It is important to consider that ss. 11.1(1) and 11.2(2) of the OSPCAA do not impose liability based on residency or ownership of land.

Evidence of residing on a property where animals are found does not create a presumption of ownership or any other relationship to the animals. The basis for liability is choosing to become the owner of an animal or the custodian of an animal or having custody of an animal or having the care of an animal. The burden of proof of such elements rests with the prosecution. [ 87 ] There is no doubt that evidence of residing where there are animals will, in many cases, be a key factor in the determination whether a person is the owner or custodian or has custody or has care of an animal.

However, it is not necessarily determinative of the issue. Depending on the case, other factors or circumstances, including evidence of the degree of substantive involvement with an animal, will factor into the analysis. All the relevant circumstances must be considered. The question of ownership, custody and care of an animal is a fact-driven enterprise. Each case will turn on its particular facts. [ 88 ] In the present case, the admissible evidence supports findings that Albert Hurley is the spouse of Rebecca Hurley and a truck driver whose work takes him away from his spouse and the Farm.

I am also of the view that the evidence establishes that Albert Hurley had significant residential ties to the Farm in May 2014 and earlier. However, the evidence after May 2014 and into 2015, including the relevant time period for the charges, is lacking. For example, not one prosecution witness testified as to seeing Albert Hurley on or near the Farm in that time period.

More importantly, not one prosecution witness testified as to seeing Albert Hurley involved with any of the horses on the Farm or any animals whatsoever in that time period. [ 89 ] In my analysis, I considered all of the admissible evidence, including circumstantial evidence and all the evidence related to Albert Hurley’s ties to and involvement with the Farm and the horses. In doing so, I was alert to the reality that circumstantial evidence and reasonable inferences drawn from established facts can, independently and together with other evidence, ground a finding of guilt beyond a reasonable doubt.

However, with respect to Albert Hurley, the witnesses simply did not provide enough evidence to establish a sufficient presence on the Farm or sufficient involvement with the horses on the Farm, at the relevant time of the alleged offences, to conclude—beyond a reasonable doubt—that Albert Hurley: owned the horses; was a custodian of the horses; had custody of the horses; or had care of the horses. [ 90 ] Therefore, the Crown has failed to prove all of the constituent elements of the actus reus of ss. 11.2 (2) and 11.1 (1) with respect to Albert Hurley and a verdict of not guilty must follow on counts #2, #3, #4, #5 and #6 of the Information as well as on counts #1 and #7.

e) The case against Rebecca Hurley

[ 91 ] There was significantly more trial evidence with respect to Rebecca Hurley. In analyzing this evidence, I was alert to the admissibility issue raised by the numerous interactions between the OSPCA and Rebecca Hurley and the absence of any voir dire on the issue of the voluntariness of statements made to persons in authority. Nonetheless, after consideration of all of the admissible evidence, I concluded that Rebecca Hurley was not guilty of count #1 on the Information, but guilty of counts #2, #3, #4, #5, #6 and #7.

Count #1— not guilty of “cause” horses to be in distress—s. 11.2(1) of the OSPCAA [ 92 ] I concluded that the prosecution had not proven—beyond a reasonable doubt—that Rebecca Hurley had committed the actus reus of this particular offence. This takes us back to the already discussed differences between “cause” in s. 11.2(1) and “permit” in s. 11.2(2) of the OSPCAA . In my view, there was insufficient evidence to prove—beyond a reasonable doubt—that Rebecca Hurley engaged in a positive act or acts that inflicted distress or resulted in the horses being in distress.

The trial evidence more clearly pointed to distress that resulted from multiple omissions and failures to prevent or to relieve distress. As already discussed, the actus reus of s. 11.2(1) requires a positive act—an omission or failure to act is not sufficient. [ 93 ] Therefore, there was insufficient evidence to prove that Rebecca Hurley did “cause” distress pursuant to s. 11.2(1), but, as I will discuss below, there was ample evidence to ground a finding of guilt that Rebecca Hurley did “permit” the horses to be in distress contrary to s. 11.2(2). Rebecca Hurley is not guilty of count #1 on the Information.

Count #2— guilty of “permit” horses to be in distress—s. 11.2(2) of the OSPCAA [ 94 ] I concluded that the prosecution had proven—beyond a reasonable doubt—that Rebecca Hurley had committed the actus reus of this particular offence. As the owner or custodian of the horses, Rebecca Hurley had a statutory duty to prevent the horses from falling into distress. The evidence is clear—she failed in that duty. [ 95 ] Rebecca Hurley also had a duty to relieve the distress of the horses if and when they became distressed for whatever reason. The evidence is clear that she failed in that duty.

I was also satisfied that the trial evidence was clear that the distress of the horses was the result of Rebecca Hurley’s omissions and failures in relation to her statutory duties. In my view, the prosecution had established “causation”—beyond a reasonable doubt. Therefore, the prosecution has established that Rebecca Hurley permitted the horses to be in distress contrary to s. 11.2(2).

Counts #3, #4, #5, #6—failing to comply with prescribed standards of care— s. 11.(1) of the OSPCAA [ 96 ] I have already discussed my findings as to the failures to follow four prescribed standards of care—with respect to horses: O. Reg. 60/09 s. 2(1) —with respect to food and water; O. Reg. 60/09 s. 2(2) —with respect to medical attention; O. Reg. 60/09 s. 2(3) —with respect to general welfare; and O.

Reg. 60/09 s. 2(5) —with respect to resting and sleeping areas. [ 97 ] I also concluded that the prosecution has established—beyond a reasonable doubt—all of the other constituent elements of the actus reus for s. 11.1(1) for all four counts. Rebecca Hurley as the person who owned, had custody and who cared for the horses had a statutory duty to comply with the prescribed standards of care and she failed to do so. Therefore, the prosecution has proven the failure to comply with the prescribed standards of care for counts #3, #4, #5 and #6 on the Information.

Count #7—failing to comply with an OSPCA order—s. 13(5) of the OSPCAA [ 98 ] As already noted above, I made findings as to the existence on March 5, 2015, of a number of orders made by Inspector Lapping, pursuant to s. 13(1) of the OSPCAA . I also made findings as to multiple failures to comply with Inspector Lapping’s orders. There was, in my view, sufficient trial evidence to confirm service of those orders upon Rebecca Hurley.

[ 99 ] In my view, the prosecution has proven—beyond a reasonable doubt—all of the constituent elements of the actus reus with respect to s. 13(5). Rebecca Hurley, as owner or custodian of the horses, had a statutory duty to comply with the orders of Inspector Lapping and she failed to do so. Therefore, the prosecution has established that Rebecca Hurley failed to comply with OSPCA orders contrary to s. 13(5).

f) Available defences to Rebecca Hurley [ 100 ] On occasion, the prosecution’s evidence at an ex parte trial can reveal a defence. That did not happen in this case. The trial evidence did not disclose an applicable common law defence and did not reveal that one of the statutory exemptions to ss. 11.1(1) or 11.2(2) of the OSPCAA would apply to free Rebecca Hurley from legal liability.

The evidence also failed to establish a defence of due diligence for any for the offences charged in counts #2, #3, #4, #5, #6 or #7. [ 101 ] This, however, should not be interpreted as there being no evidence whatsoever of due diligence.

I did note some evidence relevant to that defence, inter alia : some efforts were made to work with the OSPCA and to comply with the orders; friends were apparently assisting on the Farm with chores; there were bales of hay on the Farm with which to feed the horses; when Inspector Lapping arrived on the Farm on the cold morning of March 5, 2015, Rebecca Hurley would have been getting ready for morning chore routine; and Dr. Robertson commented that the Farm was, in general, appropriate for housing horses. However, such elements were not close to meeting the standard for a defence of due diligence.

It was up to Rebecca Hurley to prove due diligence on a balance of probabilities. She did not do so. [ 102 ] The prosecution having proven the actus reus for the offences in counts #2, #3, #4, #5, #6 and #7 of the Information and there being no defences established—Rebecca Hurley is guilty of those counts. E. CONCLUSION [ 103 ] Rebecca Hurley is not guilty of count #1 on the Information and guilty of counts #2, #3, #4, #5, #6 and #7. Albert Hurley is not guilty of all seven offences charged. Released: “April 5, 2017” “J.G. McMahon” Signed: Justice of the Peace J.G. McMahon