R. v. Kenny, 2019 ONCJ 728

ONTARIO COURT OF JUSTICE CITATION: R. v. Kenny, 2019 ONCJ 728 DATE: 2019 10 03 COURT FILE No.: Peterborough 15 0239 BETWEEN: HER MAJESTY THE QUEEN — AND — TONY KENNY Before Justice of the Peace M. Coopersmith Heard on May 24, 2018, May 31, 2018, June 7, 2018, June 18, 2018, June 28, 2018, July 26, 2018, December 6, 2018, December 17, 2018, January 10, 2019, February 4, 2019, April 15, 2019, May 6, 2019 and June 3, 2019 Reasons for Judgment released on October 3, 2019 J.

McGrath.................................................................................. counsel for the prosecution The defendant Tony Kenny.................................................................... on his own behalf JUSTICE OF THE PEACE COOPERSMITH: [ 1 ] Tony Kenny, being the owner or having custody or care over various animals, has been charged with 16 counts laid under subsection 18.1(1) of the Ontario Society for the Prevention of Cruelty to Animals Act , R.S.O. 1990, c. O.36 , as amended [“ OSPCAA ”]. All the charges arise at the property located at 1265 Second Line, Bailieboro, Ontario.

The 16 charges are as follows: 1. On or about November 5, 2014, did cause a Long Horned Bovine type animal to be in distress, contrary to

Section 11.2(2) of the OSPCAA , and thereby did commit an offence contrary to s.18.1(1)(

c) of the Act ; 2. On or about November 5, 2014, did fail to comply with the prescribed standards of care for a Long Horned Bovine type animal, contrary to s.11.1(1) of the OSPCAA , to wit, fail to provide protection from the elements as required by s.2(6) (

e) of O. Reg. 60/09 , and thereby did commit an offence contrary to s.18.1(1)(

b) of the Act ; 3. Between October 24, 2014 and November 5, 2014, re: 1 Long Horned Bovine type animal, did fail to comply with an order under s.13(5) of the OSPCAA , and thereby did commit an offence contrary to s.18.1(1)(

d) of the Act ; 4. On or about January 15, 2015, did cause 6 (Ducks) Anseriformes type animals to be in distress, contrary to s.11.2(2) of the OSPCAA , and thereby did commit an offence contrary to s. 18.1(1)(

c) of the Act ; 5. On or about January 15, 2015, did fail to comply with the prescribed standards of care for 6 (Ducks) Anseriformes type animals, contrary to s.11.1(1) of the OSPCAA , to wit, fail to provide adequate and appropriate food and water as required by s.2(1) of O. Reg. 60/09 , and thereby did commit an offence contrary to s.18.1(1)(

b) of the Act ; 6. On or about January 15, 2015, did fail to comply with the prescribed standards of care for 6 (Ducks) Anseriformes type animals, contrary to s.11.1(1) of the OSPCAA , to wit, fail to provide adequate and appropriate medical attention as required by s.2(2) of

O. Reg 60/09 , and thereby did commit an offence contrary to s.18.1(1)(

b) of the Act ; 7. On or about January 15, 2015, did fail to comply with the prescribed standards of care for 6 (Ducks) Anseriformes type animals, contrary to s.11.1(1) of the OSPCAA , to wit, fail to provide adequate and appropriate sanitary conditions as required by s.2(6) (

b) of O. Reg 60/09 , and thereby did commit an offence contrary to s.18.1(1)(

b) of the Act ; 8. Between January 14, 2015 and January 15, 2015, re: 6 (Ducks) Anseriformes type animals, did fail to comply with an order under s.13(5) of the OSPCAA , and thereby did commit an offence contrary to s.18.1(1)(

d) of the Act ; 9. On or about January 15, 2015, did cause 20 (Chickens) Galliformes type animals to be in distress, contrary to

Section 11.2(2) of the OSPCAA , and thereby did commit an offence contrary to s.18.1(1)(

c) of the Act ; 10. On or about January 15, 2015, did fail to comply with the prescribed standards of care for 20 (Chickens) Galliformes type animals, contrary to s.11.1(1) of the OSPCAA , to wit, fail to provide adequate and appropriate food and water as required by s.2(1) of O. Reg. 60/09 , and thereby did commit an offence contrary to s.18.1(1)(

b) of the Act ; 11. On or about January 15, 2015, did fail to comply with the prescribed standards of care for 20 (Chickens) Galliformes type animals, contrary to s.11.1(1) of the OSPCAA , to wit, fail to provide adequate and appropriate medical attention as required by s.2(2) of O. Reg 60/09 , and thereby did commit an offence contrary to s.18.1(1)(

b) of the Act ; 12. On or about January 15, 2015, did fail to comply with the prescribed standards of care for 20 (Chickens) Galliformes type animals, contrary to s.11.1(1) of the OSPCAA , to wit, fail to provide adequate and appropriate sanitary conditions as required by s.2(6) (

b) of O. Reg 60/09 , and thereby did commit an offence contrary to s.18.1(1)(

b) of the Act ; 13. Between January 14, 2015 and January 15, 2015, re: 20 (Chickens) Galliformes type animals, did fail to comply with an order under s.13(5) of the OSPCAA , and thereby did commit an offence contrary to s.18.1(1)(

d) of the Act ; 14. On or about January 15, 2015, did fail to comply with the prescribed standards of care for 1 Domestic Dog, contrary to s.11.1(1) of the OSPCAA , to wit, fail to provide adequate and appropriate food and water as required by s.2(1) of O. Reg. 60/09 , and thereby did commit an offence contrary to s.18.1(1)(

b) of the Act ; 15. Between December 12, 2014 and January 15, 2015, re: 1 Domestic Dog, did fail to comply with an order under s.13(5) of the OSPCAA , and thereby did commit an offence contrary to s.18.1(1)(

d) of the Act ; 16. On or about January 15, 2015, did cause 1 Domestic Dog to be in distress, contrary to

Section 11.2(2) of the OSPCAA , and thereby did commit an offence contrary to s.18.1(1)(

c) of the Act . [ 2 ] The trial proceedings took place over many days: May 24, 2018, May 31, 2018, June 7, 2018, June 18, 2018, June 28, 2018, July 26, 2018, December 6, 2018, December 17, 2018, January 10, 2019, February 4, 2019, April 15, 2019, May 6, 2019 and June 3, 2019. Mr. Kenny brought several motions before and during the trial proceedings. [ 3 ] For the reasons that follow, I have dismissed all the defendant’s outstanding motions. And, further, I find Tony Kenny guilty of each of the sixteen charges laid under subsection 18.1(1) of the OSPCAA . I.

EVIDENCE, SUBMISSIONS AND FINDINGS: [ 4 ] Agent Daniel Pazder, Inspector Nicole Fraser, Dr. Greg Aitken and former Agent Joshua Matson testified for the prosecution. The defence presented no evidence. (

a) Evidence of Agent Daniel Pazder: [ 5 ] Agent Daniel Pazder testified that he has been the Ontario Society for the Prevention of Cruelty to Animals Agent for the County of Peterborough for just under six years. Prior to that, he was a registered veterinary technologist, having received an honours degree at Northern College. He then worked as an Agent at the OSPCA in Oakville for two years, prior to coming to Peterborough. He takes

part in approximately 450 to 500 animal cruelty investigations a year. He is the lead investigator in the matters that bring this defendant before the courts. [ 6 ] Agent Pazder first became involved with this investigation on September 11, 2014. He was dispatched to Rainbow Drive in the County of Peterborough in the Municipality of South Monaghan (Bailieboro), in response to a complaint regarding three horses in a small round pen with a large amount of mud and without adequate food or water. Animal Control Officer Mike Johnson and his trainee, Agent Miskolczi, accompanied him.

After observing the horses, Agent Pazder proceeded up the laneway to the house to inquire if the owner was there. Along the way, he noticed a long-horned bull attached to a truck bed with a tether that was approximately twenty feet long. After getting out of his truck and proceeding to knock on the door, he found a black and tan hound-type dog tied to a tree, on an eight- to ten-foot chain and with a plastic rain barrel as shelter.

There was another enclosure, approximately eight feet by four feet, with what looked like two dogs inside, with a plastic rain barrel as a shelter. [ 7 ] There was no response to Agent Pazder’s knock on the door of the house. He left a 24-hour contact notice on the door. As he was leaving, he called Debbie Haigh, the animal control person for the area, to see if she knew the owner of the property. Ms. Haigh was around the corner, so she drove to the property where Agent Pazder was. She believed the owner lived across the street at 330 Rainbow Avenue, so they walked over and knocked on the door.

A lady came out of the house and, from conversation with her, they determined it was Tony Kenny’s property. This lady, however, owned the horses. When they advised her that they had received a complaint regarding the horses, she told them they were trespassing and to leave the property. [ 8 ] Agent Pazder provided an aerial view of the property where the horses and bull were located (Exhibit 1). The round pen

housing the horses is on the southern portion of the property, east of the driveway that diagonals across the property. The house is halfway along the driveway. [ 9 ] The long-horned bull was tethered in an area between the horses and the house, in the open, grassy field about sixty feet off the east side of the laneway. Agent Pazder did not see any shelter. He was not comfortable getting close to the bull to confirm whether it had adequate water. [ 10 ] Closer to the house, the dog that was tethered to the tree with a heavy chain had inadequate shelter, in the form of a plastic rain barrel.

The lead was short – eight to ten feet. The dog was a hound, about the size of a cocker spaniel, weighing about thirty pounds. [ 11 ] The two dogs in the enclosure had a similar plastic rain barrel as inadequate shelter that appeared not large enough to be able to accommodate both dogs at the same time. The enclosure was made of metal caging material and measured about eight feet by four feet.

Agent Pazder was unable to observe whether the dogs had adequate water. [ 12 ] After viewing the dogs, Agent Pazder returned to his office. [ 13 ] On September 15, 2014, the defendant, Tony Kenny, voluntarily attended at the Humane Society office for a meeting he had set up the previous week through the OSPCA Executive Director, Judy O’Brien. He was accompanied by his personal assistant, Mr. Allan Bulmer and they met with Agent Pazder and Executive Director O’Brien. At the request of the defendant, Agent Pazder provided his identification. Mr.

Kenny then started questioning him about why he was on the property, how he got on the property, where exactly he was on the property and what he was doing. The defendant claimed that Agent Pazder was trespassing on his property. Agent Pazder stated that he did not see a trespass marker along Rainbow Drive and the defendant was unable or unwilling to advise of the location of any such posting. Agent Pazder made several attempts to talk to Mr.

Kenny about his concerns for the animals on his property and whether they were provided with the provisions set out in Ontario Regulation 60/09 : Standards of Care and Administrative Standards made under the OSPCAA [“ O. Reg. 60/90 ”]. He wanted to talk about adequate housing for the dogs, but Mr. Kenny would not hear of it. The defendant did advise that he owned the three dogs and the bull. The defendant continued to repeat his concerns, wanting Agent Pazder to quote sections of the Charter of Rights . He would not listen to anything that had to do with the conditions of his animals.

Consequently, near the end of the meeting, things were getting heated between Mr. Kenny and Ms. O’Brien. She informed the defendant that they would be sending him their orders for compliance by registered mail. Agent Pazder wrote up the orders and sent them out by registered mail later that day. [ 14 ] Exhibit 2(

a) is a copy of the September 15, 2014 standard short form OSPCA order that was sent. It is addressed to Tony Kenny, at 1265 Second Line in Bailieboro, regarding “3 various coloured and breeds of dogs on property”. Pursuant to subsection 13(1) of the Act , the defendant was ordered to take the following action to relieve the animals’ distress: 1. If the dog is to be kept outside, it must be given a doghouse large enough for the dog to stand up, sit down, turn around and stretch out to the fullest extent of its limbs. The doghouse must be weatherproof with an interior windbreak and/or exterior flap.

The doghouse must fact away from the prevailing wind and must be elevated off the ground. 2. The doghouse must be insulated. 3. If the dog is kept tethered, it must be provided with a running line, chain or leash which will permit unrestricted movement into the doghouse and for the distance of not less that 3 meters from the doghouse. 6. Clean, potable water must be provided in a spill proof container at all times. [ 15 ] The date for compliance was noon on Monday, October 6, 2014. It also stated: If this order is not complied with, the animal(

s) may be removed by the Ontario SPCA in order to provide them with care at the expense of the owner/custodian. The animal(

s) shall not be removed, sold or otherwise disposed of by the owner/custodian without the consent of the inspector/agent. This order shall remain in force until such time as it is modified or revoked. [ 16 ] The order is signed by Agent Pazder and includes his badge number, phone number, fax number and address. The back of the order provides the guidelines to question the order to the Animal Care Review Board, under s. 17 of the OSPCAA . [ 17 ] Exhibit 2(

b) consists of the unopened envelope, unclaimed by Mr. Kenny and returned by Canada Post, along with the registered mail tracking number and history. [ 18 ] The compliance date of October 6, 2014 passed without any compliance information received by Agent Pazder. On October 8, 2014, Agent Pazder applied for and was issued an OSPCA Animal in Distress Warrant (Exhibit 3), to attend 1265 Second Line in the Township of Otonabee South Monaghan, to check out the compliance order.

He attended at the property at 11:10 that morning, along with OSPCA Agent Nicole Foster from the Northumberland Humane Society and Ontario Provincial Police Constables Morgan and D’Amico. [ 19 ] They entered the property via the driveway off Rainbow Drive. The defendant was with the long-horned bull, in the field along the side of the laneway. Agent Pazder presented Mr. Kenny with a copy of the OSPCA warrant and informed him that he was there to check on the order for compliance. Agent Pazder asked Mr.

Kenny if he would like to accompany the two agents while they looked at the animals, but the defendant chose to stay by the cars with the OPP officers. [ 20 ] Agent Pazder observed the dog that had been tethered now running free, but still without adequate housing – only the plastic rain barrel. A cooler was used for a water source, but the water was very dirty and had not been cleaned out in a while. The enclosure with the two dogs had only one dog in it and it still had the plastic rain barrel as a shelter and very dirty water in a container. There was a leg of an animal with the dog in the enclosure.

Agent Pazder had no concern with this animal leg that could have been roadkill or from another carcass, as long as the dog had another source of food to provide vitamins and minerals and was monitored to ensure the bone

didn’t splinter off to cause gastro-intestinal upset. This appeared to be no more than a treat for the dog. There was another dog house that seemed to be in good shape, but it was off to the side, nowhere near the dogs. [ 21 ] After looking at the dogs, the agents drove their vehicles back down the laneway to look at the bull. The bull was partially hobbled and Mr. Kenny had been trying to fix its tether when they first arrived. The tether consisted of a half inch, round braided rope, like that used to tie off a boat, and was connected to an old pick-up truck bed. There were two buckets in the bed and Mr.

Kenny informed the agents that they contained water. Mr. Pazder did not get close, as Mr. Kenny said the bull was a bit on edge that day. There was no shelter provided for the bull. [ 22 ] They then moved further down the laneway to deal with the horses, which were owned by someone else. Agents Pazder and Foster returned to Mr. Kenny’s location to ask him questions about the sheltering of the bull at night. The defendant would not answer any of their questions.

At the end of the visit, not having noticed any movement towards compliance regarding shelter and water for the dogs and shelter for the bull, Agent Pazder provided Mr. Kenny with a new OSPCA order to provide a shelter for the bull and the previous order regarding the dogs that the defendant had not claimed in the registered mail. (Exhibit 5.) [ 23 ] Several photographs taken by Agent Pazder on October 8, 2014 were entered as Exhibits 4(

a) to 4(j). They illustrate the bull, its tethering and surroundings and the dogs and their surroundings, plastic barrel shelters and dirty water. Only the white and brown dog was in the wire enclosure. Agent Pazder advised that it seemed to be panting, but otherwise appeared to be in an acceptable condition, without ribs or hip bones showing. The dog that was previously chained to a tree was running freely. The photograph of the tree and chain shows a tether that was less than three meters long.

The plastic barrels used as shelters for the dogs did appear to be large enough to accommodate the dogs standing, sitting, turning or fully stretched out, but they were not insulated with an interior windbreak or exterior flap. Agent Pazder did not check to see if these shelters were facing away from the prevailing winds. However, they were not elevated up off the ground. Consequently, they did not meet the requirements for an approved animal shelter. [ 24 ] Exhibit 5 is the October 8, 2014 order Agent Pazder issued and personally provided to Mr. Kenny during the October 8, 2014 visit to his property.

Page 1 references the three dogs on the property and the requirements for proper housing, at least a three-meter- long chain or leash that would permit unrestricted movement into the doghouse and clean water. Page 2 of 2 references the need to provide shelter and/or a windbreak for the long-horned bull. Compliance was to be by October 24, 2014. Agent Pazder included his name, phone number and address. The back of the order provided information that any dispute would be to the Animal Care Review Board [ 25 ] The next visit Agent Pazder made to the property was October 31, 2014.

He entered through Rainbow Drive and arrived at 2:14pm in order to recheck the orders he gave the defendant on October 8, 2014. He had obtained an OSPCA Animal in Distress Warrant (Exhibit 6) and was accompanied by OSPCA Agent Marie Doucette and OPP Constable Peckover. When there was no response to his knocking, he posted a copy of the OSPCA warrant on the door of the house. [ 26 ] The brindle-coloured hound known as Diesel was tethered to an abandoned dog house northeast of the wire dog enclosure. There was a household pot contained a little amount of water.

This was the dog that had been running freely on the previous visit. A closer look showed the dog appeared quite skinny. The enclosure just south of the house contained the Jack Russell type dog. The leg of an animal was still there, the water appeared very dirty and the same plastic house was used as shelter. [ 27 ] The long-horned bull was moved from the east field to the west side of the laneway, still tied to the truck bed by his horns. There were plastic buckets, but Agent Pazder could not tell if they contained water. The bull still had no access to any manmade or natural shelter.

Agent Pazder took photographs that were entered as Exhibits 7(

a) to 7(h). The bull was shown standing in the field attached to the truck bed. There were photographs of the brindle-coloured hound known as Diesel, attached on a longer lead than previously and with a partially tipped over pot of water near the doghouse. The opening to the doghouse was large and had no flap and the inside of the doghouse was not insulated. As well, the pot in the Jack Russell terrier-type dog’s enclosure contained a small amount of dirty water and the pot was not spill proof.

The enclosure now contained a little bit of straw and there were kibbles in the lid of the cooler. [ 28 ] From the previous visit, Agent Pazder had concerns about the shelter for the bull and unknown water source for the bull, as well as shelter and water for the two dogs. Since there was no one home in this follow-up visit, he could not issue any orders. Consequently, he left the property. [ 29 ] Agent Pazder next visited the defendant’s property on November 5, 2014, as Mr. Kenny was still under non-compliance orders. Agent Pazder simply wanted to come back to check on compliance.

He wanted to give more opportunity to have the issues resolved. Again, he had an OSPCA Animal in Distress Warrant (Exhibit 8). He entered the property by the entrance on Rainbow Drive and was accompanied by Agents Doucette and Matson, OSPCA Senior Inspector Steven Toy, Officer Miskolczi from the Peterborough Humane Society and OPP Officers Peckover, D’Amico and Moran. He and Officer Miskolczi walked up to the house and knocked on the door. There was no answer and the October 31, 2014 warrant was still on the door.

Agent Pazder also attached the warrant that was issued on November 3, 2014. [ 30 ] They looked at the animals and confirmed there still was no compliance, so they called a livestock transport and loaded up the horses and the bull. That was the fourth trip to the property to observe no change in the condition of the bull – no shelter and tied to the truck bed as winter was approaching. There had been two orders issued by this time. The decision to remove the bull from the property was made based on the welfare for the animal and conditions not improving.

Agent Pazder completed a “Notice of Removal and/or Destruction of Animals” for “1 Jersey, Longhorned type bovine ster (sic)”, addressed to Tony Kenny at 1265 Second Line, Bailieboro, Ontario (Exhibit 9). The back of the Notice provided information about the Animal Care Review Board and, in particular,

section 17 of the OSPCAA . [ 31 ] As they were removing the animal, Carlie Gaeco arrived with the police and identified herself as a relative of the defendant. She was Mr. Kenny’s future daughter-in-law and she advised that Mr. Kenny was residing with her. She watched the animal being loaded. Afterwards, Agent Pazder gave her the removal notice form and she advised him that she would provide it to Mr. Kenny.

[ 32 ] Next, they checked up on the two dogs. There was a little bit more straw inside the shelters. Since they saw some attempts from the owner at this time, Senior Inspector Steven Toy advised that they should modify the orders and give more time for compliance. [ 33 ] Exhibits 10(

a) to 10(

g) contain a series of photographs taken by Agent Matson on November 5, 2014, in the presence of Agent Pazder, who printed out the photographs. They show a skinny bull with no shelter, tethered in the west field to a truck bed. As well the bull’s two white buckets contained dirty yellow water. The dog by the house had the water cooler beside him and its shelter was not raised off the ground, had no insulation and no wind flap.

The terrier-type dog was inside the blue plastic barrel, which was not raised up off the ground, but did have some straw in it for insulation. [ 34 ] After leaving the property, Agent Pazder wrote two orders and, a couple of days later, sent them to the defendant by registered mail. [ 35 ] Agent Pazder next visited the property on December 18, 2014, to check on compliance with the November 14, 2014 orders. Again, he entered from the south entrance with a Warrant (Animals in Distress), a copy of which was entered as Exhibit 11. He was accompanied by Agents Matson and Doucette and OPP Officer Julia Hagalini.

There were no more dogs at the house. There was a black and tan shepherd cross type dog tied up at the entrance to the barn. There was a lot of feces on the ground and an empty frying pan that was believed to be used as the dog’s food bowl. There was a bucket of water that was frozen. Inside the door of the barn was a blue plastic rain barrel with some straw in it, that was not raised up off the ground. The remains of a chicken were near where the dog had been. [ 36 ] Agent Pazder heard the sound of chickens coming from inside the barn. Upon entering, he found two wire cages of chickens in the main area.

There was a large amount of wet feces inside the cages. The chickens did have food, but their water was starting to ice over. Beside the two cages was a door to another room, where there were two quite large enclosures containing a variety of different breeds of chickens. The smell was very strong and there was a six- to eight-inch build up of feces. There was very little food and the water had started to ice over. The birds had a large amount of feces caked to their feet, as there was no dry spot where they could stand. There were decaying pumpkins, pineapples and other vegetation in the cages.

Chickens and ducks were separated between the two enclosures, one of which had ten nesting boxes for about nine chickens and one rooster and two domestic geese. The enclosure needed to be cleaned out. The other enclosure contained four domestic geese and around six chickens and two roosters, with only a shelf to get up onto. [ 37 ] Agent Pazder look photographs, entered as Exhibits 13(

a) to 13(l). They show the dog chained near the door of the barn, the blue plastic barrel containing straw, the dog’s freezing water, the empty frying pan being used as a food dish for the dog, the outside wire cage without a dog in it, the empty outdoor doghouse, the inside of the barn, two chickens in a cage outside the large enclosure, a bucket in the enclosure containing water that is starting to freeze, a gravity-fed hopper containing chicken feed and a large amount of feces.

One of the large enclosures held twelve chickens, ducks and a rooster, water containers starting to freeze and a large build up of feces. The other large enclosure contained twelve geese, chickens and roosters with no food, with water beginning to freeze over and a build up of feces. [ 38 ] The birds had intermittent food, water that was freezing over and unsanitary conditions, with feces everywhere. They were given water before Agent Pazder left. [ 39 ] Agent Pazder was concerned that these birds did not have regular care, so a 24-hour contact notice for “ABANDONED ANIMAL(

S) CALL WITHIN 24 HOURS” was posted to the door of the house [Exhibit 12]. The back of the notice contained relevant excerpts and explanations of various laws pertaining to animals from the Criminal Code of Canada and the OSPCAA. Everyone left the property and more orders were written. [ 40 ] Agent Pazder returned to the property on December 22, 2014 to see if the animals were being cared for or if they had been abandoned. Again, he entered the property with a Warrant (Animal in Distress), a copy of which was entered as Exhibit 14. He was accompanied by Agent Matson and OPP Constable Peckover.

There was no response to the knock on the door of the house, so he posted the warrant on it. [ 41 ] There were no dogs in the two outdoor areas where they had previously been. The agents and officer entered the barn. The previously posted 24-hour contact notice was no longer there. The water had been emptied and replaced with clean water and food was provided. There had been no clean up of the fecal material inside the enclosures. The dog by the barn had water and seemed happy. Its blue plastic barrel still had no wind flap and was not raised off the ground.

Agent Pazder advised his boss, Senior Inspector Steven Toy, that someone was looking after the animals, so he decided to write orders and send them by registered mail once they left the property. [ 42 ] Exhibit 15 is the December 22, 2014 order to Tony Kenny to 1. Provide clean bedding at all times for all poultry breeds for nesting behaviour, 2. Clean up all fecal matter and 3. Clean up all hazardous debris that could cause injury to animals. Agent Pazder’s contact information was included and January 14, 2015 was set as the date for compliance.

The registered mail was returned, unopened, to the Humane Society. [ 43 ] Agent Pazder returned to the property again on January 15, 2015, entering from Second Line, as the Rainbow Road entrance was blocked with a chain, a car parked sideways across the entrance and a truck with a snow plough behind the car. He was accompanied by Agents Matson and Doucette and two OPP Officers and, again, had obtained a Warrant (Animal in Distress) prior to entry onto the property (Exhibit 16).

Getting no response to his knock on the door of the house, Agent Pazder posted the warrant on the door. [ 44 ] Seeing no dogs up by the house, they proceeded to the barn. The first cage of chickens looked like they had not been cleaned since the last visit and were even worse at this visit. There was no feed and the water was frozen solid. In the area where there were two large enclosures of chickens and ducks, again, they had not been cleaned. The animals’ water was frozen and there were frozen blocks of water in the shape of the container where the ice had been dumped out.

There still was no nesting box in one pen and no nesting material in either of the very dirty pens. As there had been no compliance regarding the chickens and ducks, Agent Pazder contacted his

Senior Inspector, Steven Toy. He then proceeded to remove all the birds to get them out of distress. In doing so, he noticed that they were very skinny. [ 45 ] They then proceeded to check on the dog. It was tied up at the same location as previously and was very happy to see people. Its water was frozen solid, and no other water was available. It was a cold day. There was no food opened for the dog. The doghouse still had no wind flap, was not raised up off the ground and had some straw but was not insulated. Officer Pazder was able to get his hands on the dog.

He found her to be extremely skinny and could palpate all her vertebrae. Her hip bones were sticking out. [ 46 ] Officer Pazder body scored the dog at a two out of five. He explained that there was a scale used to judge how skinny or overweight an animal was. A score of three would be ideal, five would be obese and one would be a skeleton. This dog was getting close to being emaciated, very skinny. Officer Pazder had training in evaluating animals. He is a registered veterinary technologist, having attend Northern College for three years as an honours student.

As well, he worked in several veterinary hospitals and emergency clinics and had training through the OSPCA to body score different species of animals. [ 47 ] Exhibits 17(

a) to 17(

l) are photographs taken that day by Agent Pazder. They show the dog and his surroundings and the birds and their enclosures. The blocks of ice in the form of the container can be seen. A lot of chicken feces is plainly visible in the wire cages and the larger enclosures. The water provided to the birds was frozen into ice. There is a picture of a chicken with feces caked to its feet and some of the leg scales lifted up by mites. The body condition of a chicken is gauged by feeling the keel bone.

This chicken’s keel bone, down the centre of the underside of the bird, is quite prominent, showing muscle loss along the side of the keel bone. There is a photograph of another chicken that has lost its toes. [ 48 ] The dog and all the birds were removed from the property to take them out of distress. There were no animals remaining. Exhibit 18 is a January 15, 2015, short form OSPCA Removal and/or Destruction Order that was posted on the door of the house and listed 32 chickens of various sexes and breeds, 6 domestic ducks and 1 brindle coloured hound dog were removed.

Agent Pazder signed this form and provided his contact information. Exhibit 19 is a January 16, 2015, long form OSPCA Notice of Removal and/or Destruction of Animals, again indicating that 1 brindle coloured hound type dog, 6 domestic ducks and 20 various chicken breeds were removed. It is addressed to Tony Kenny and has Agent Pazder’s name and contact information. This long form notice was sent to Tony Kenny by registered mail. Exhibit 20 is a January 16, 2015, OSPCA Statement of Accounts – Removed Animals that was sent to Tony Kenny along with the long form notice of removal.

It outlines the cost for the removal and care of the animals, payable to The Peterborough Humane Society and, again, provides Agent Pazder’s name and contact information. [ 49 ] In cross examination, the defendant asked Agent Pazder where the OSPCAA requires shelter for the horses and other animals. Agent Pazder indicated that it was in the various codes of practice for different species of animals. Nonetheless, the OSPCAA provides that no animal can be permitted to be in distress and farms are not exempt from not causing animals to be in distress. [ 50 ] To accommodate Mr. Kenny further, his support person, Mr.

Allan Bulmer, assisted him in cross examination. Mr. Bulmer entered Exhibit 21, a blank Provincial Offences Information. As Exhibit 22, he provided a copy of the Provincial Offences Information number 15-0239, containing the sixteen counts laid against Tony Kenny. On April 21, 2015, Agent Pazder signed as the informant and His Worship Young as the Justice of the Peace. Exhibit 23 is another information, 15-0205, with sixteen counts laid against the defendant on April 1, 2015. It was signed by Agent Pazder as the informant and His Worship Hiscox as the Justice of the Peace.

It shows that all the charges were withdrawn at the request of the crown on August 24, 2015. Mr. Kenny and Mr. Bulmer had great difficulty grasping the concept that Information 15-0205 was no longer relevant, nor was any summons that may have issued from it. Exhibit 24 was entered as a blank summons and Exhibits 25(

a) and 25(

b) illustrate two copies of the summons issued by His Worship Young on April 21, 2015 – one has a blank Affidavit of Service of Summons and the other one has the Affidavit completed, showing that it was served by Derek Robertson of the OPP on May 2, 2015. Again, I advised the defence that this line of questioning may have been within the knowledge of the courts, but not Agent Pazder. [ 51 ] Mr. Kenny continued his cross examination with Exhibit 26, a photograph he took on September 11, 2014 at 2:34pm.

It was a picture of the OSPCA trailer in Peterborough and had a logo on it “Ontario Investigations SPCA” and another sticker reading “County of Peterborough”. These logos have since been removed. Exhibit 27 is a close up of the licence plate of the “Animal Services – Peterborough City & County” vehicle that is in Exhibit 26. Agent Pazder drove this vehicle in 2014. The plate’s validation tag is dated “Dec 13”. Agent Pazder advised that he did not know if the subsequent validation tag had fallen off, but the paper work would have been available. Again, I had to advise Mr.

Kenny that I would give no weight to his statement that attempted to connect a dated validation tag with a “rinky-dink” organization. [ 52 ] Next, Mr. Kenny provided an aerial view of the property on Second Line Road and Rainbow Drive (Exhibit 28). It was downloaded from Google Maps, but did not contain any directional reference points. Across the road from the property, next to Rainbow Drive, is the Otonabee River, not Rice Lake, as Agent Pazder had thought. [ 53 ] Exhibit 29 is a photograph taken by Mr. Kenny on March 11, 2014.

There are snow banks, a dead-end sign, a sign for Kenny Drive and a Private Drive sign. Agent Pazder confirmed that he did not see the Private Drive sign and first entered the property from Rainbow Drive to initially respond to a call about the three horses on the property. He drove along the laneway of the property, past the farmhouse and barn, to a chain across the end of the laneway onto Second Line Drive. Seeing no other house on the property, he turned around and returned to the farmhouse and called Debbie Haigh.

He waited for her at the bottom of the laneway at Rainbow Drive. [ 54 ] Exhibit 30 is a photograph taken September 11, 2014 at 12:55pm, approximately two hours after Agent Pazder left the property. It shows a tire tread mark on a laneway, which Agent Pazder could not know to be from his vehicle. Agent Pazder indicated that he did not see a sign that says “Tallgrass Prairie Restoration Project by the Kenny Family” posted at the entrance to 1265 Second Line, nor was a photograph of this sign and its location provided to the court.

Nor had he seen a red belly snake illustrated in the middle of the tire track in the photograph, which could have been either alive or run over by the tire of a vehicle. [ 55 ] At the next court date, Mr. Kenny was provided with an opportunity to continue cross examination of Agent Pazder, but declined to do so.

(

b) Evidence of Inspector Nicole Foster: [ 56 ] Nicole Foster has been employed as a zoo inspector with the Ontario SPCA for three years. Prior to that, she was an SPCA Officer with the Northumberland Humane Society for twelve years. [ 57 ] On October 8, 2014, she attended the property at 1265 Second Line with Agent Dan Pazder, who had contacted her at approximately 9:56am. At 10:56am, she met Agent Pazder and two OPP Officers close to 1265 Second Line in Bailieboro. They entered Mr. Kenny’s property from Rainbow Drive at 11:11am.

There were three horses in a small, round paddock and further along the driveway was a bull and a man sitting up on what appeared to be a four-by-four off-road vehicle. [ 58 ] Agent Pazder served the warrant on the man Inspector Foster believed to be Tony Kenny. Mr. Kenny requested to see their badges, which were produced. They then proceeded to see the dogs up by the house. The house had boarded up windows and it did not appear that anybody was residing there at that time. A red brindle hound-type dog was running freely on the property.

Another dog, a black and white beagle or Jack Russell-type dog, was in a wire enclosure. The dogs appeared to be in okay condition, with no signs of thinness or immediate injury to them. Inspector Foster identified photographs Agent Pazder had taken and entered as Exhibits 4(

a) to 4(j). [ 59 ] Inside the wire enclosure was a blue barrel lying on its side, with a rectangle cut out of the front panel. Inside the barrel was standing water, leaves and dirt. There was no straw or bedding. The water in the bowl was green in colour and had lots of leaves and dirt inside. There was a tissue and bloody object, with some sort of meat on a bone, which was unidentifiable. [ 60 ] There was a second area with a barrel and a big thick silver chain wrapped around a tree, without an enclosure or wire caging.

It had a lunch cooler or bucket with dirty black or brown standing water with lots of leaves in it. It was not known if the freely running dog may have been tied there and Mr. Kenny refused to answer any questions about the animals. There were car parts or other mechanical objects in the grass around the dogs. [ 61 ] Inspector Foster identified the bull that was partially hobbled. She explained that hobbling is done to secure an animal to one space, so that it does not move around, by connecting the feet and head by a rope or chain to limit movement or the ability to charge.

Hobbling usually occurs in a large paddock where the animal would be tied to a fence or a post to keep it still. It is usually used to maintain an animal in a space in order to check its body condition for any injury or if any maintenance is needed. Mr. Kenny advised that the bull was not secure. The rope had been thrown over him a couple of times across the horns and the head, wrapped loosely around the neck and pooled at the bull’s feet. It was attached by about ten feet of rope to a truck bed which did not appear to be secure.

There were a lot of weeds and minimal grass and pasture for grazing and there did not appear to be water or shelter. The bull did not have access to move around the property. Inspector Foster stated that if one is hobbling a bull, it should be moved three to four times a day, to provide proper pasture area and to give the animal movement. (

c) Evidence of Dr. Greg Aitken: [ 62 ] Dr. Greg Aitken has been a veterinarian since 2012 and is qualified to treat domestic animals. Dr. Aitken has experience working with the OSPCA and the Humane Society, conducting general health assessments of animals, making treatment recommendations and ensuring the treatment is being followed. Usually, the animals he examines for the OSPCA are in worse condition than the typical animals he would be dealing with, so there is more emphasis on treatment to improve their welfare or euthanasia if they are beyond the point of being able to preserve good welfare. Dr.

Aitken would provide his recommendations to the OSPCA and they would decide the course of action to be taken. [ 63 ] Specific to these proceedings, Dr. Aitken examined the chickens and ducks, but not the dogs or the bull. The examination or assessment of chickens and ducks is the same. It starts with a visual appraisal, which takes into account their level of consciousness, their attitude and mentation, in other words, how bright and aware they are of what is going on, whether they are ambulatory and sound on their feet and assessing lameness.

This is followed by a more hands-on assessment, assessing things like their body condition and their hydration. Then, Dr. Aitken assesses their vital physical parameters, which involves listening to their heart rate and respiratory rate. He then moves to a more detailed examination, to look at skin, feathers, feet, eyes, nostrils, mouth, tongue and any further closer examination of a specific system as may be indicated. [ 64 ] Dr. Aitken has experience with what is necessary for the proper care of ducks and chickens.

There should always be unrestricted access to feed and water, shelter from wind, rain and harsh temperatures, roosts available and sanitary conditions where they can stand out of the mud in a dry place. [ 65 ] I am satisfied that Dr. Greg Aitken’s education, licencing and experiences qualify him to give evidence as an expert in the field of veterinary medicine and specifically with respect to assessment of an animal’s health and proper conditions for animal care. [ 66 ] On January 16, 2015, Dr.

Aitken was called to the offices of the Peterborough Humane Society to do general health assessments on six ducks and two groups of chickens totalling approximately twenty birds. Agent Pazder identified the birds as coming from Mr. Kenny’s property. [ 67 ] There was a group of smaller, miniature-sized chickens - silkies and banties. The other group consisted of a regular-sized mix of common backyard chicken breeds. The assessment of the group of silkies and banties was that they were too thin and had an inadequate body condition score.

On a scale of one to five, with three being normal, two being under conditioned and one being emaciated, they were all greater than one, but less than two and a half. All these chickens had frost bite on their combs, on the top of their heads and on their feet. Many of them had fairly advanced mite infestation on their legs and feet. The other group of chickens was the same in terms of mite infestation and frost bite. They were better conditioned, all ranging between two and three.

Two would be acceptable, but not ideal. [ 68 ] The ducks had body condition ratings between two and three and they, too, had evidence of frost bite on their feet. Other than these observations, the physical condition of the birds was overall acceptable, with none of them showing signs of dehydration. The

feathering was acceptable and there was no sign of other systemic illness, such as gastrointestinal or respiratory disease. The main concerns were the poor condition of the silkies and banties and the frost bite and mite infestations. [ 69 ] Dr. Aitken was shown photographs previously entered as Exhibits 17(j), (

k) and (l). They were taken on January 15, 2015, the day before he examined the birds. Photograph 17(

j) appeared to be one of the banties and it appeared to have poor body condition based on the prominence of the keel bone. The darker colour on the underside of the feet suggested frost bite, although Dr. Aitken could not make that diagnosis based on the picture alone. The deformities on the feet, the scales on the top and underside are typical for a scaly leg mite infestation. Judging by how severe it was, the mite infestation appeared to be chronic and probably had been going on for over two months. [ 70 ] Photograph 17(

k) was a picture of one of the banty chickens, with some very severe deformities of its feet. It looked like a fairly severe case of frost bite that likely made this chicken lose its toes. There also appeared to be an active mite infestation on the scales of its legs and the injuries were chronic because the loss of the toes appeared to have healed. [ 71 ] Photograph 17(

l) showed a chicken that had lost some of its toes and the injury, having happened sometime in the past but not as long ago as in photograph 17(k), appeared to be partially healed. [ 72 ] Dr; Aitken explained that the mites burrow under the scales of the feet and cause inflammation, which can cause swelling and deformities, as seen in the first picture. It is painful, such that eventually the chickens are reluctant to walk, do not eat as much as they should and, if untreated, over the course of several months it can cause death, usually from starvation.

Usually within a month or two after first exposure to the mites, the infestation would have progressed to the point where it would be obvious on casual examination by the caretaker of the birds. From the photographs, there would have been at least two months of mite infestation to see the chronic changes that were apparent. [ 73 ] With respect to treatment, the frost bite that resulted in the loss of the toes did not appear to be active, so there would be no treatment at this point.

To treat the mite infestation, there are a variety of different liquid or powdered medications that can be applied directly onto the feet to kill the mites and then the feet would heal over time. These treatments are generally successful in resolving the visible lesions. Often it can be a recurrent problem because of the mites left in the environment. [ 74 ] Dr. Aitken also looked at photographs from December 18, 2014, previously entered as Exhibits 13 (i), (j), (

k) and (l). Photograph 13(

i) appeared to be a fairly typical wire poultry cage that was a bit dirty inside. There appeared to be a dead bird in the cage, although Dr. Aitken could not tell for certain from the photograph. Also, from the photograph, he could not tell if there was liquid water in the container. In photograph 13 (j), it was hard to tell if there was liquid in the containers or whether it was water or ice in the water buckets. The bird enclosure was quite unsanitary. There did not appear to be any bedding provided and the picture did not show if there was a supplemental source of heat.

In photograph 13(k), there was nothing useful to comment on and, although there was no bedding apparent, Dr. Aitken could not see enough of the enclosure to know if there was any bedding in the entire enclosure or where the feed or waters were. In 13(l), again, there was no bedding.

There appeared to be some standing muddy water or very liquid manure in the bottom right corner of the photograph, which would be an unacceptable source of drinking water and which would then contribute to the poor hygiene. [ 75 ] Without bedding, the birds do not have the same tolerance for cold, their feet are wet and they have no shelter, so that they are more prone to frost bite. It is also less sanitary, so that the birds are more susceptible to a variety of diseases. [ 76 ] The ducks that Dr. Aitken examined appeared to be a mix of common backyard breeds.

They were in thin body condition, between two and three. There was some evidence of frost bite. Dr. Aitken did not note any other conditions. The frost bite appeared to be chronic, no longer active, having occurred at least three weeks prior to Dr. Aitken’s examination. [ 77 ] Both chickens and ducks have approximately the same care requirements. In the pictures Dr. Aitken viewed, there appeared to be insufficient bedding and poor hygiene based on the level of liquid manure. Fecal contamination predisposes the birds to many diseases. The lack of bedding means their feet are constantly exposed to wet manure.

Photograph 13(

l) shows nine birds and, assuming the pen is at least eight feet by eight feet, a deep layer of bedding once or twice a month probably would be adequate. In the winter, the standing water should not be there, as it is not doing any good for the animals and is unsanitary. If there is no way to get rid of that water, the area would have to be cleaned more frequently to keep the water from building up. Typical bedding would be straw, wood chips or shavings, saw dust, old leaves or anything that is clean and absorbent of moisture. [ 78 ] In the exhibits shown to Dr.

Aitken, the deformities, loss of toes and missing bones in the birds are serious injury. In some of the cases, there was very little bone left to lose, so that if the bird had another case of frost bite, it probably would have ceased to be able to walk at all. [ 79 ] Dr. Aitken’s concern was to make sure that none of the frost bite was active, so that there were no open wounds that would lead to infection that could kill the animals. His main concern was assessing their body condition, that none of the animals were so far emaciated that recovery was unlikely. (

d) Evidence of Former Agent Joshua Matson: [ 80 ] At the time he provided his evidence, By-law Officer Joshua Matson was with the Town of Napanee. Just three weeks prior to that, he was an inspector with the OSPCA for eight years, conducting an average of about three hundred investigations a year. His Senior Inspector asked him to assist Agent Pazder with the investigation with respect to the defendant and the animals found on Mr. Kenny’s property. They entered the defendant’s property at the back off Rainbow Line, which was the easiest access to the property.

He assisted with taking photographs and animal handling and took the photographs on November 5, 2014, which had been entered as Exhibits 10(

a) to 10(g). [ 81 ] On the days Officer Matson was at the defendant’s property, he observed the bull located in the middle of a field, tethered to a truck bed with a rope approximately fifteen feet long. Photograph 10(

d) shows two buckets of what appears to be very dirty water in the

truck box. Officer Matson approached the bull that appeared a little leery of his presence but seemed fairly friendly and his body condition appeared to be okay. [ 82 ] Officer Matson was at the property on December 18, 2014. Pictures entered previously as Exhibits 13(

a) to 13(

l) were consistent with what Officer Matson saw that day. His first concern was with the dog that had bedding but did not have appropriate shelter. The ducks and chickens had a large amount of accumulated wet feces, there was some garbage and debris in with the ducks and chickens and their water was starting to freeze. [ 83 ] Officer Matson entered the property again on January 15, 2015. The bull no longer was there. There was a dog, as illustrated in Exhibit 17(a). The living conditions of the birds were much the same as the previous visit, with a large accumulation of feces and garbage.

The water was frozen and the birds were exhibiting cold stress, shivering and lifting their feet. Toes were frozen off and one bird had no toes left, just a nub at the end of the animal’s leg. The birds were thin, as Officer Matson could feel their breast bones and everything was very prominent. [ 84 ] In consultation with Agent Pazder, they deemed that the orders that had been issued were not complied with and the animals were in distress. They removed the animals to relieve the distress. Officer Matson had no further involvement with this case after that. (

e) Submissions: [ 85 ] The prosecution submits that the defendant, Tony Kenny, was either the owner or the custodian of the animals at issue and the matters occurred on Mr. Kenny’s land at 1265 Second Line, Bailieboro, Ontario, K0L 1B0. On several occasions during these proceedings, Mr. Kenny argued that the animals were his and should be returned to him. When the agents were on the property at the same time as Mr. Kenny, he indicated that he was the person in charge. [ 86 ] The evidence from November 5, 2014 shows that the bull was in distress, tethered to a pick-up truck box in the middle of the field.

Its water was filthy and the bull had no ability to move beyond the length of its tether. On many visits to the property by the agents, Mr. Kenny was not around and there was indication that the animals had been left for days, based on the condition of their water, feces surrounding them and the condition of their food. [ 87 ] Mr. Kenny was served with a notice of care under subsection 11.2(1) and subsection 11.2(2) of the regulations, requiring that “No person shall cause an animal to be in distress”, and “No owner or custodian of an animal shall permit the animal to be in distress”.

Section 11.1(1) reads, “Every person who owns or who 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.” [ 88 ] Regarding the bull, O. Reg. 60/09 , section 2(6) (

e) reads, “Every animal must be provided with adequate and appropriate, … (

e) protection from the elements, including harmful temperatures.” The bull was kept outside on a tether, had no shelter and could not possibly reach any shelter. It was in the middle of a field, with no protection from the elements and every indication was that it was left there for long periods of time. [ 89 ] Section 13(1) of the OSPCAA provides that where an inspector or agent of the Society has reasonable grounds for believing that an animal is in distress, the inspector or agent may make an order that the owner or custodian take action necessary to relieve the animal of its distress. Mr.

Kenny was given such an order on October 8, 2014, and nothing was done. [ 90 ] The prosecutor’s earlier submissions also apply to the ducks. Again, the charge under s.11.2(2) is allowing the animals to be in distress on January 5, 2015. The evidence of Agent Pazder relates to non-compliance under s.2 with the standard of care of the regulations, non-compliance with the standard of medical attention and non-compliance with the sanitary conditions. There were reasonable and probable grounds that the animals were in distress and an order was made on December 22, 2014, for Mr.

Kenny to comply with the requirements to relieve the distress of the animals. The photographs showed the conditions the birds were in and Agent Pazder provided evidence that they were in their own feces several inches deep with no dry area to go to, they were not being checked on, their food was not cared for or clean, they were not given clean bedding. They did not have enough room to exercise and were not cared for, with no attention given to their cleanliness. They were in deplorable conditions and were not being given medical attention. Mr.

Kenny was given an order under section 13(1) to relieve the conditions of the animals and he took no steps to do so. [ 91 ] The chickens were much like the ducks. On January 15, 2015, Agent Pazder observed that they were left in distress, not having care, food and water and being neglected. The food, what there was of it, was not clean and was not being replaced regularly. The water was filthy. The privation and neglect were clear – they were not being kept clean and not being given reasonable bedding. Nothing was being done to relieve their distress. Mr.

Kenny did not comply with the standard of care and the regulations. Mr. Kenny was not complying with the standard of care to provide medical attention. These animals had toes missing and, in one case, the entire foot was missing. They were losing feathers. They were thin and not eating properly. They were put in conditions where they would fight with each other, putting roosters in with other roosters. Frankly, the photographs of these chickens were difficult to look at. The condition of their feet was simply abominable.

Their cages were filthy and not cleaned, they had no warm water or bedding and no place where they could get their feet out of the wet. Mr. Kenny was served with an order under section 13(1) , asking him to comply with the order to relieve the animals’ distress. [ 92 ] The dogs had the best of what the animals were put through. However, there was a failure to comply with the standard of care under the regulations, regarding a solid, weather-proofed structure of appropriate size and an appropriate tether length.

The barrel structures appeared to be sufficiently sound, but they were not well secured and needed to be cleaned regularly. Without a proper door covering, they were not weather-proofed. Mr. Kenny was given an order on September 15, 2014 and October 8, 2014 to relieve the animals’ distress. He took one or two steps, but did not follow through and the animals remained in distress when the officers returned. Their water was unclean and their food questionable at the very least. The photographs clearly demonstrate the conditions of these animals. [ 93 ] Dr.

Aitken provided very professional and objective evidence, hesitating to make any judgments in these matters. However, his evidence was clear. There was a problem with hydration, that is, with the water of the animals, with their ability to walk about or get up

and move. He found frost bite on the chickens and some on the ducks. There was mite infestation on the birds. The deformities on thefeet of the chickens were from both frost bite and mite infestation and this condition had lasted more than two months. [94] Nothing being done to improve the lot of the animals, they were seized. Mr. Kenny could have brought any objection to thisbefore a review board.

The prosecution submits that the evidence is overwhelming – each of these animals suffered neglect, were notproperly cared for, did not have water, did not have food, were not cleaned, were not given a liveable place to be and, in the case of thebull and the dogs, were not able to get proper shelter. When they became unhealthy, diseased and/or deformed, particularly in the caseof the birds, they were simply left and nothing was done to help them. [95] The defence provided no submissions. (

f) Findings: [96] I accept the evidence provided by the prosecution witnesses, as it is coherent, rational and consistent and I have not beenprovided with any evidence to the contrary. II. RULINGS ON DEFENCE MOTIONS: [97] The defendant has brought numerous motions before the court. They were so numerous that they were interfering with theprogress towards resolution of the charges Mr. Kenny was facing. Consequently, at one point, the defendant was advised that he couldbring no further motions without first obtaining permission to do so from the court. [98] On February 6, 2017, Her Worship J.

Moffatt, Justice of the Peace, signed the following endorsement: - 11b motion heard and dismissed - S.7 + s.8 motion deferred until trial in order to have evidentiary foundation. [99] I advised the parties that I would provide my rulings on outstanding motions when my judgment was rendered. [100] At the closing of the court proceedings, I provided both parties with the opportunity to present any further written materials theywould like me to consider regarding the outstanding motions. On July 9, 2019, I received materials from the defendant.

I have reviewedthese submissions, in addition to all the transcripts and written materials I previously received relating to the trial and the outstandingdefence motions. [101] Below are my rulings on the defendant’s motions. (

a) Defence Application to Stay Proceedings due to Medical Condition: [102] On October 12, 2017, I determined that a stay of the proceedings on account of the defendant’s medical condition (congestiveheart failure) was not in order. The defendant had not satisfied his onus of providing medical evidence that clearly showed, on a balanceof probabilities, he was not able to defend himself or that the trial process would cause risk to his health. In the absence of objectivemedical evidence, a note from a doctor to the effect that a trial would affect Mr.

Kenny’s health is insufficient. [103] I relied, in part, on R. v. J.-G.R., (Ont. S.C.J.) in which Justice Wein writes at para. 24: Even where an accused with congestive heart disease was said to have a likelihood of dying within a year, the Manitoba Queen’s Benchdenied an application for a stay, in R. v. J.N.T., (MB KB), [1995] M.J. No. 475. In that case, despite the increasedrisk of the criminal trial process, none of the experts could say with any degree of certainty that the accused would die or become furtherincapacitated.

The court determined that the appropriate accommodations in terms of physical presence and medical assistance in courtwould be adequate to minimize the risk. [104] The defendant continued to ask for a stay of proceedings as the trial unfolded. On January 10, 2019, Mr. Kenny did provide aspecialist report, but did not make his specialist available to testify in order to quantify the risk to his health. On January 4, 2019, Dr.Adriana C. Luk, from the Heart Function Clinic wrote: Lastly, from a medical point of view, he does have advanced heart failure.

It would be difficult for him, given his symptoms and hisreaction to highly stressful situation to continue pursuing his legal battles in court. I think, at a minimum, if he does have worseningsymptoms, he should be transported to hospital for assessment. [105] Although it may be difficult for him, the court provided Mr. Kenny with accommodations for his medical condition, to includeabridged court appearances and transcripts to alleviate stress of note taking.

Furthermore, when he indicated that he was not feelingwell, out of an abundance of caution, an ambulance was called and he was “transported to hospital for assessment”, which accords withthe medical specialist’s report. When Mr.

Kenny did not feel well enough to attend court, transcripts were provided in a timely fashionand a later date was set to allow him to cross-examine the prosecution’s witnesses. [106] A stay should be granted only in the clearest of cases, when compelling a defendant to stand trial would violate the fundamentalprinciples of justice underlying the community’s sense of fair play and decency, or where the proceedings are oppressive or vexatious. There is no evidence that these trial proceedings are oppressive or vexatious. Most of the medical notes lacked clear, adequate andobjective findings and restriction. Mr.

Kenny has not met his burden to show that the trial process poses a risk of serious impairment tohis health. Nor has he shown that he was unable to fully participate in his defence, especially given the accommodations provided tohim. As well, the public interest in these matters require that the trial proceed. [107] Therefore, the defendant’s application to stay the proceedings on account of his medical condition is dismissed.

(

b) Defendant’s November 14, 2016 Notice of Motion: [ 108 ] The grounds for Mr. Kenny’s November 14, 2016 motion are as follows: 1. For an order to return as per OSPCA Act subsection 14(1.4), all animals and fowl seized/removed at 1265 Second Line, South Monaghan, on November 5, 2014 and on or around January 15, 2015. The seized/removed and detained animals are subject to s.s. 14(1.4). The animals and fowl are subject to an order made under ss 14(1.1) as required by the mandatory ss 22(2)(

d) OSPCA Act. 2. On failure of OSPCA to return property forthwith, for an order to permit Tony Kenny to inspect all Kenny property as per criminal code 490, and/or POA 159. 3. For an order to dismiss all POA charges against Tony Kenny, relative to 1 and 2 above and other. [ 109 ] I have read the documents the defence attached to these motion materials. [ 110 ] Beginning with the first ground, subsection 14(1.1) of the OSPCAA states: Order for Society to keep animal

(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. 2008, c. 16, s. 11 (1) . [ 111 ] Subsection 14(1.4) of the OSPCA reads: Order to return animal The Society or the owner or custodian may apply to a justice of the peace or provincial judge to order the return of an animal that is the subject of an order made under subsection (1.1) and, if satisfied that there are no longer reasonable grounds to believe that the animal may be harmed if returned to its owner or custodian, the justice of the peace or provincial judge may order the return of the animal to its owner or custodian, subject to any conditions that the justice of the peace or provincial judge considers appropriate. [ 112 ] I have reviewed Exhibit 9, the OSPCA Notice of Removal and/or Destruction of Animals.

It is addressed to Tony Kenny and notifies him that the “Jersey, Longhorned type bovine ster(sic)” was removed under section 14(1) of the OSPCAA , and not under subsection 14(1.1) . Likewise, Exhibit 19 is addressed to Tony Kenny and is an OSPCA Notice of Removal and/or destruction of Animals for “1 brindle coloured hound type dog, 6 domestic ducks and 20 various chicken breeds. It, too, notifies the defendant that these animals were removed under section 14(1) of the OSPCAA , not subsection 14(1.1) . [ 113 ] Subsection 14(1) reads: Taking possession of animal

(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. [ 114 ]

Section 17 of the OSPCAA provides the mechanism by which Mr. Kenny may exercise his right to appeal the removal of his animals and request that they be returned to him. These provisions are clearly laid out on the back of both Notices of Removal and/or Destruction of Animals. This

section provides: Appeal to Board

(1) The owner or custodian of any animal who considers themself aggrieved by an order made under subsection 13 (1) or by the removal of an animal under subsection 14 (1) may, within five business days of receiving notice of the order or removal, appeal against the order or request the return of the animal by notice in writing to the chair of the Board. Same

(1.1) The notice shall set out the remedy or action sought and the reasons for the appeal or request.

No appeal if there is order for Society to keep animal (1.2) Subsection (1) does not apply if an order in respect of the animal under subsection 14 (1.1) is in force. Application for revocation of order

(2) Where, in the opinion of the owner or custodian of an animal in respect of which an order under subsection 13 (1) has been made, theanimal has ceased to be in distress, the owner or custodian may apply to the Board to have the order revoked by notice in writing to thechair of the Board. [115] Therefore, since the removal of Mr. Kenny’s animals was not pursuant to subsection 14(1.1), this court does not havejurisdiction to order that the animals be returned. The animals were removed pursuant to subsection 14(1) of the OSPCAA and,consequently, the Animal Care Review Board was the appropriate venue for Mr.

Kenny to seek such an order. [116] I move now, to the second ground. Given that the OSPCAA, itself, specifically deals with the return of animals that have beenseized, I will not apply the more general provisions relating to the return or detention of items seized under the Provincial Offences Act,R.S.O. 1990, c. P. 33, as amended [“POA”]. Furthermore, these proceedings are regulatory proceedings and are not criminal in nature.

Hence, I will not apply the provisions of the Canadian Criminal Code. [117] On the defendant’s third ground, my judgment below, not a ruling on a motion brought by the defendant, will determine whetherto dismiss all POA charges against Tony Kenny. (

c) Defendant’s January 5, 2017 Notice of Constitutional Question: [118] The defendant is seeking a remedy under subsection 24(1) of the Charter on the following four grounds: 1. Charter subsection 7 – peaceful enjoyment of property. 2. Charter subsection 8 – An unwarranted search of defendants (sic) property, leading to search and seizure by warrantsobtained, with evidence obtained, by an illegal trespass unto (sic) property without permission of the owner or legal authorization. 3.

Charter subsection 11(b) – The defendant claims an unreasonable time to conclusion of proceedings in a civil matter, withover 19 months having passed as of writing, with no no (sic) time frame for the end of proceedings. At the time of writing, fulldisclosure has not been received, with resistance to provide disclosure as required. 4.

Charter subsection 24(2) – An unwarranted search of defendants (sic) property. [119] For the reasons that follow, I find that the defendant’s rights under the Canadian Charter of Rights and Freedoms have not beeninfringed and, hence, there will be no remedy granted under subsection 24(1). 1. Charter

Section 7: [120]

Section 7 of the Charter reads: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [121] The defendant claims “peaceful enjoyment of property”. There is no mention of property rights in

section 7 of the Charter. Hence, the defendant’s property rights have not been infringed. Moreover, any entry onto Mr. Kenny’s property by OSPCA agents, etc.,was in accordance with the legislation, in particular, lawfully obtained warrants (see Charter

Section 8 below). [122] Nonetheless, security of the person may be interfered with when state action intrudes in a defendant’s personal life in a profoundway, such as imposing serious psychological stress. However, security of the person does not protect an individual from the ordinarystress and anxiety a reasonable person would experience as a result of government action or regulation: R. v. Transport Robert (1973)Ltee. (2003), (ON CA), 180 C.C.C. 3d 254 (Ont. C.A.); New Brunswick v. G. (J.), [1999] 3. S.C.R. 46 (S.C.C.).

Mr.Kenny has provided no evidence to substantiate that serious psychological stress was imposed upon him. At all times, the agents of theOSPCA were carrying out their responsibilities under the OSPCAA. On more than one occasion, they provided Mr. Kenny with theopportunity to bring the conditions and care of his animals within legislative and regulatory requirements and standards. This was notdone. Mr. Kenny has only himself to blame for ongoing visits to his property and this prosecution of the charges against him.

Moreover,the prosecutor was patient, as these proceedings were protracted by the defendant’s motions and the accommodation of Mr. Kenny’smedical condition. The prosecutor’s conduct throughout these proceedings has been without reproach. Mr. Kenny was granted asignificant number of adjournments and accommodations for his medical condition beyond what was indicated in his Specialist’s report.

Court proceedings were abridged in order to provide him with the opportunity to obtain medical attention and have his pre-existingcondition medically assessed, timely transcripts were provided to alleviate the stress of note taking and the duration of the trialproceedings on any particular day was originally set at half days and later shortened to one and a half hours to further accommodate hisendurance. [123] Under

section 7, the defendant has the right to make full answer and defence as part of the concept of fundamental justice. Mr.Kenny was afforded every accommodation and opportunity to do this. Furthermore, this right imposes a duty on the prosecution todisclose all relevant information in its possession to the defendant: R. v. Stinchcombe (1998), (SCC), 68 C.C.C. 3d 1(S.C.C.). On a few occasions, Mr. Kenny argued that he had not been provided with full disclosure. Of note was information herequested regarding the identity of the individual who first complained to the OSPCA about the horses on his property.

He remainedmost calcitrant that he was entitled to know the identity of the complainant. This information is irrelevant: North Perth (Town) v. Scott,2006 ONCJ 238, [2006] O.J. No. 2723 (Ont. C.J.). As with other arguments, Mr. Kenny’s requests for further information were denied

as the information he sought was not relevant. Furthermore, having heard all of the trial proper, I can find no evidentiary foundation that would substantiate the prosecution having withheld any relevant disclosure that would have prejudiced or reasonably prevented the defendant from making full answer and defence. There is a societal interest in having these matters adjudicated in a fair hearing.

Having regard to the circumstances and based on the satisfactory efforts made to provide the defendant with disclosure, there is no basis upon which the administration of justice would be brought into disrepute. [ 124 ] I can find nothing that would constitute a breach of the defendant’s rights under

section 7 of the Charter . This ground of his Notice of Constitutional Question is dismissed. 2. Charter

Section 8 : [ 125 ]

Section 8 of the Charter provides: Everyone has the right to be secure against unreasonable search or seizure. [ 126 ] The defendant is claiming an “unwarranted search of defendants (sic) property, leading to search and seizure by warrants obtained, with evidence obtained, by an illegal trespass unto property without permission of the owner or legal authorization.” [ 127 ] On September 11, 2014, Agent Pazder, along with Animal Control Officer Mike Johnson and his trainee, Agent Miskolzi, first entered onto the defendant’s property, located at 1265 Second Line, Bailieboro, Ontario.

This entry onto the defendant’s property was in response to a complaint regarding the condition of three horses on the property. On his way up the laneway to the house, Agent Pazder observed the long-horned bull and three dogs. [ 128 ] I find that this entry onto Mr. Kenny’s property without a warrant was in accordance with Agent Pazder’s OSPCA duties to immediately look into complaints that animals may not be cared for properly and may be in immediate distress. Subsection 12(6) of the OSPCAA provides for just such an entry.

It reads: Immediate distress – entry without warrant If an inspector or an agent of the Society has reasonable grounds to believe that there is an animal that is in immediate distress in any building or place, other than a dwelling, he or she may enter the building or place without a warrant, either alone or accompanied by one or more veterinarians or other persons as he or she considers advisable, and inspect the building or place and all the animals found there for the purpose of ascertaining whether there is any animal in immediate distress. [ 129 ] Subsection 12(1) of the OSPCAA provides for a warrant to be obtained from a justice of the peace, for OSPCA inspectors, agents, etc. to enter any building or place where there are reasonable grounds to believe an animal is in distress.

It reads: If a justice of the peace or provincial judge is satisfied by information on oath that there are reasonable grounds to believe that there is in any building or place an animal that is in distress, he or she may issue a warrant authorizing one or more inspectors or agents of the Society named in the warrant to enter the building or place, either alone or accompanied by one or more veterinarians or other persons as the inspectors or agents consider advisable, and inspect the building or place and all the animals found there for the purpose of ascertaining whether there is any animal in distress. [ 130 ] The following outlines subsequent entries onto Mr.

Kenny’s property: • The second time Agent Pazder entered onto Mr. Kenny’s property was on October 6, 2014. On that day, he had applied for and was granted a Warrant (Animal in Distress) by Justice of the Peace P. Hiscox [Exhibit 3]. Agent Pazder was accompanied by OSPCA Agent Nicole Fraser and OPP Officers Morgan and D’Amico. • On October 31, 2014, Agent Pazder again obtained a Warrant (Animal in Distress) from Justice of the Peace P. Hiscox [Exhibit 6].

OSPCA Agent Doucette and OPP Officer Peckover accompanied Agent Pazder onto the defendant’s property. • On November 3, 2015, Agent Pazder obtained a Warrant (Animal in Distress) from Justice of the Peace J. Mariasine [Exhibit 8]. The warrant expired November 6, 2014. On November 5, 2014, Agent Doucette, OSPCA Senior Inspector Toy, Officer Miskolczi and OPP Officers Peckover, D’Amico and Moran accompanied Agent Pazder onto the defendant’s property. • On December 17, 2014, Agent Pazder obtained a Warrant (Animal in Distress) from Justice of the Peace P. Hiscox [Exhibit 11]. The warrant expired December 24, 2014.

On December 18, 2014, Agent Pazder, along with Agents Matson and Doucette and OPP Officer Hagalini, entered onto the defendant’s property. • On December 22, 2014, Agent Pazder obtained a Warrant (Animal in Distress) from Justice of the Peace C. Young [Exhibit 14]. He entered the defendant’s property that day, accompanied by Agent Matson and OPP Officer Peckover. • On January 14, 2015, Agent Pazder obtained a Warrant (Animal in Distress) from Justice of the Peace P. Hiscox [Exhibit 16]. The warrant expired January 16, 2015. On January 15, 2015, Agent Pazder made his last visit onto the defendant’s property.

He was accompanied by Agents Matson and Doucette and two OPP Officers. [ 131 ] Each time any person authorized under subse

[…]