R. v. Livingston Date:, 2015 BCPC 358

Citation: R. v. Livingston Date: 20151203 2015 BCPC 0358 File No: B3676-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA ( BYLAW COURT ) REGINA v. EVA LIVINGSTON REASONS FOR JUDGMENT OF THE JUDICIAL JUSTICE H.W.GORDON Appearing for City of Victoria : Adam Sheffield Appearing on her own behalf: Eva Livinston

Place of Hearing: Victoria , B.C. Dates of Hearing: September 3, 25, 2015 Date of Judgment: December 3, 2015 Introduction [ 1 ] This is a sad and difficult case that brings into play the juxtaposition between a person’s philosophy for the care of a much loved, aged and sickly cat and the animal welfare law of the City of Victoria and the perspective of those that enforce it. As often the case with domestic pet care and the law, there are strong emotions and opinions on both sides of an issue.

To say that I have had great difficulty in arriving at a conclusion in this matter is an understatement but in the end, it is the wording of the law and the facts of the case that are determinative. [ 2 ] On June 1, 2015, Eva Livingston was charged by way of Municipal Ticket Information under

section 9 of the City of Victoria Animal Control Bylaw (Bylaw 11-044) with, in the words of the Information, failing to ensure the proper care of an animal. That is not the wording of the bylaw. The Bylaw [ 3 ] The bylaw provides:

Part 3 - Animal Welfare 9. The owner of an animal must ensure that the animal is provided with: (

a) clean, potable water; (

b) suitable food of sufficient quantity and quality to allow for normal growth and the maintenance of normal body weight; (

c) clean and disinfected food and water receptacles that are located so as to avoid contamination by excrement; (

d) the opportunity for regular exercise sufficient to maintain good health; and (

e) necessary veterinary care when the animal exhibits signs of pain, injury illness or suffering. [ 4 ] The City advises that it is

section 9(

e) of the bylaw that is invoked here: that Ms. Livingston failed to ensure that Cinnamon was provided with the necessary veterinary care when she exhibited signs of pain, injury, illness or suffering. The Evidence [ 5 ] The facts are not much in dispute. Eva Livingston is the owner of a 15 year old Siamese cat named Cinnamon which from her early years had a difficult life. At age two Cinnamon was badly injured that resulted in among other things the loss of her left eye, injuries to her limbs and possibly some internal injuries. With care from a veterinarian and Ms.

Livingston, Cinnamon recovered and lived a well loved life. In approximately 2008, Cinnamon’s tail was caught in a door and she has had bowel movement difficulties since. Cinnamon’s health declined in 2011 and since then she appears to have had frequent visits to a veterinarian until July 2014. In that time frame, Cinnamon had two thorough medical examinations. [ 6 ] On a visit to a veterinarian, the veterinarian advised Ms. Livingston that Cinnamon was in poor condition, with arthritis, respiratory problems, diarrhea, blocked nostril, dehydration with weight loss and deteriorating teeth.

Various treatments were recommended and administered by both the veterinarian and Ms. Livingston. My assessment of what I heard and draw from the evidence is that Cinnamon was in a condition not unlike many of the very elderly in the human end of the mammalian hierarchy. [ 7 ] From July 2014 until Cinnamon was taken on June 1, 2015 by a concerned citizen to the local animal control facility, Ms.

Livingston, having in mind what the veterinarian had recommended, her assessment of Cinnamon’s level of comfort and ability to cope with certain treatments and in consultation with a trusted pet store, continued to comfort and treat Cinnamon without further visits to a veterinarian. The veterinarian had advised Ms. Livingston that Cinnamon was unlikely to live past Christmas of 2014. She was still alive at the date of the last hearing.

Cinnamon would not only eat very little but many of the foods she was offered she could not tolerate or they had other side effects, again somewhat analogous to many elderly people. [ 8 ] In short, Cinnamon was long past her best before date and Ms. Livingston stated her philosophy was that animals should not be put down but be allowed to live out their lives naturally while being made as comfortable as possible. [ 9 ] On June 1, 2015 a passerby of Ms.

Livingston’s house spotted Cinnamon in the yard or next to the sidewalk and thought Cinnamon was in such poor condition that he or she should take her to the local Animal Control facility. Cinnamon presented to the facility and to the veterinarian there with much the same conditions as outlined above with the added feature of severe matting along Cinnamon’s back. In addition, the skin on her inside hind leg was somewhat burned apparently from faecal matter as a result of the diarrhea. In other words, Cinnamon presented as a sickly emaciated cat.

Animal Control apparently concluded that these conditions indicated Ms. Livingston had neglected to care for Cinnamon and as a result, an officer issued this Municipal Ticket Information. [ 10 ] Neither the veterinarian who treated Cinnamon in June nor Animal Control knew what veterinary care Ms. Livingston had previously provided to Cinnamon. They knew only how Cinnamon presented on June 1, 2015.

Analysis [ 11 ] My appreciation of the evidence I heard and that was properly before me is that with possibly the matted fur, Cinnamon was in little or no different condition than she was in the 3 or more years up to July 2014 when she was in constant and frequent veterinary care. After July 2014, Ms. Livingston simply concluded that she knew Cinnamon and what she could tolerate and set out to make her as comfortable as she could until she passed on. [ 12 ] The only witness for the City was Animal Control Officer Adam Sheffield. He stated summarily, and I know from previous appearances of Mr.

Sheffield before me, that he has some years of experience in animal control and its associated environment. But much of the medical evidence he gave was that which would only have been within the knowledge of the veterinarian who assessed and treated Cinnamon in June 2015 and so much of Mr. Sheffield’s evidence in that respect was hearsay. Finding [ 13 ] On the evidence on the whole, I am not satisfied beyond a reasonable doubt that Ms. Livingston failed to ensure that Cinnamon was provided necessary veterinary care in the circumstances.

That is the language of the bylaw the City of Victoria has chosen to use and the language I must apply to the facts of this case. [ 14 ] Consequently I acquit Ms. Livingston of the charge of breaching

section 9 of the City of Victoria Animal Control Bylaw. _______________________________ H. W. Gordon Judicial Justice