R v Baker, 2023 ABCJ 102

In the Alberta Court of Justice Citation: R v Baker, 2023 ABCJ 102 Date: 20230525 Docket: 220227847P1 Registry: Calgary Between: His Majesty the King - and - Cheryle Baker Corrected judgment: A corrigendum was issued on February 7, 2024; the corrections have been made to the text and the corrigendum is appended to this judgment. Decision of the Honourable Justice S.L. Van de Veen The Charge [ 1 ] The Accused is charged with causing or permitting an animal to be in distress, namely a male cat named “Tom,” contrary to s 2(1) of the Animal Protection Act of Alberta .

The offence is alleged to have occurred between December 16, 2020 and September 16, 2021. The Facts [ 2 ] Upon considering the totality of the evidence and the submissions made, I make the following findings of fact. [ 3 ] In 2006 the Accused and her late husband intended to take ownership of a kitten born to a feral cat found pregnant by the Accused’s boss. When they viewed the feral cat’s full liter of kittens, they fell in love with two cats, instead of one, and took them both home. They cared deeply for both cats for 15 years.

The cat which is the subject of the charge before the Court was called Tom and his littermate was called Chuck. [ 4 ] In the fall of 2020, the Accused’s husband died of lung cancer and in February 2021, Chuck, the littermate, was euthanized at the Accused’s home by Dr. Clooney, a veterinarian who did house calls. At that time the Accused “gave” Tom to Dr. Clooney, indicating Dr. Clooney actually held him. The Accused testified Dr. Clooney looked at him and checked him over. Dr.

Clooney mentioned to the Accused words to the effect “let’s hope Tom doesn’t get diabetes.” Although there was no complete examination of Tom at that time, Dr. Clooney did not note any outward signs of distress in February of 2021, some seven months prior to the euthanization of Tom. Dr. Clooney gave no indication to the Accused that Tom was unwell or that he was in distress and required

medical attention. There is also no evidence Dr. Clooney suggested the Accused make an appointment to have Tom fully examined because of his age. [ 5 ] Tom’s behaviour changed after the death of his littermate. He began looking for Chuck and became less social. He withdrew and occasionally his feeding was off, but not consistently. The Accused attributed this change in behaviour to depression from the loss of both her husband and Chuck. Also, the Accused had to return to work after her husband’s death and Tom was left alone for the first time in his life while the Accused was gone to work.

The Accused testified both she and Tom were sad after the death of her husband and Chuck. The loss of both the Accused’s husband and the littermate would have been of significance to both the Accused and her cat, since the Accused’s husband was directly involved in the care of Tom along with the Accused and Tom would have undoubtedly missed his littermate who had been euthanized. [ 6 ] Tom stopped sleeping with the Accused and began sleeping in the living room where Chuck used to sleep, so the Accused made a bed for him there. In July 2021, Tom changed his eating routine.

He went off his wet food and the Accused switched to paté, which is a smooth food. He still ate his kibble and treats which were hard food. The Accused began giving him freeze-dried bison, which is a crunchy food along with creamy cubes of cat food. He continued to eat hard food, especially treats, until late August. [ 7 ] That summer Tom lost weight but then regained it. Tom retained a healthy appetite until late August when the Accused e- mailed Dr. Clooney on August 27, 2021 concerning Tom. He did not appear to be in pain but the Accused thought he might have diabetes, since Dr.

Clooney had mentioned this in February. The Accused also thought Tom might have lung cancer. [ 8 ] Tom became a finicky eater in late August and appeared quite fragile. The Accused believed Tom was suffering from depression but was worried he was much sicker when she e-mailed Dr. Clooney August 27, 2021. She was worried her cat may have to be euthanized and was hopeful euthanasia wasn’t necessary. She wanted Dr. Clooney’s advice to ensure she didn’t hang on to her cat if he was suffering. She wanted Dr. Clooney to advise her what was wrong with Tom and hoped he could be medicated. Dr.

Clooney made house calls and the Accused reasonably wanted advice from her own veterinarian concerning Tom when she e-mailed Dr. Clooney on August 27, 2021. The house calls are of significance in this case since the Accused testified Tom became very anxious when he was taken to the veterinarian when Chuck was alive. Tom hated being in the car and hated being in the cage he was put in to go to the veterinarian. He would meow and cry the whole journey and would paw at the cage trying to get out. He would hide when they returned home.

Therefore, the Accused and her husband determined not to take him to the veterinarian unless necessary and the Accused’s desire to wait for Dr. Clooney to come to her home to advise her concerning Tom was reasonable. [ 9 ] Dr. Clooney’s office did not respond to phone calls at the time the Accused sent the August 27 th email, and e-mails were the only means of contacting her due to the COVID pandemic. The Accused received no response from Dr. Clooney and the Accused thought she was on holidays. After three weeks the Accused went through Dr.

Clooney’s website to contact her again and got an appointment for September 19. However, on the night of September 15 her cat vomited blood and the Accused contacted Riverbend Clinic to have Tom euthanized. She knew then that Tom could not wait to see Dr. Clooney, that he was suffering, and that he would have to be euthanized. She was seen by Dr.

Mackie at Riverbend Clinic who told her that after she euthanized Tom he would remain frozen until there were enough animals to cremate, when they would all be cremated together. [ 10 ] The Accused believed that in order for Tom’s soul to be released he would have to be cremated which would allow his soul to pass over or go forward. Until cremation he would be tied to earth and not be released. Therefore, she took Tom to Pet Heaven Crematorium. She did not want Tom in the “mass grave” the Riverbend Clinic advised her of. This exemplifies the deep care and concern the Accused held for her cat.

It was at the Pet Heaven Crematorium that the Humane Society investigation took possession of Tom’s remains for purposes of a necropsy which was done by Dr. Doyle. Analysis of the Evidence [ 11 ] In making my findings of fact, I have considered the evidence of both Dr. Mackie and Dr. Doyle who testified that Tom had extensive health issues which would have left him in distress for a considerable period of time and that his distress would have included outward signs noticeable to the Accused. His various ailments were a natural result of age. Dr.

Doyle’s report marked as exhibit 5 states in her opinion Tom would’ve been in “outwardly obvious distress for nine months.” I note that seven months prior to Tom’s death, Dr. Clooney saw Tom. At the time she euthanized his litter mate Chuck, she held Tom and felt him. She commented “ let’s hope he doesn’t get diabetes ” which was what Chuck died from. She did not observe outward signs of distress. I am mindful the February observations of Tom were not a complete examination but Dr. Clooney did not mention any distress to the Accused and had there been the obvious outward signs of the distress testified to by Dr.

Doyle, they would’ve been seen by Dr. Clooney, and one would expect Dr. Clooney would have suggested the Accused have Tom more fully examined to determine whether he was in need of veterinary care. As mentioned earlier, there is no evidence Dr. Clooney suggested the Accused should have Tom more fully examined given that he was 15 years old. [ 12 ] Dr. Doyle’s report states that Tom, like many neglected elderly cats, experienced chronic deterioration and that he collected diseases as he aged which would have resulted in increasingly obvious symptoms of distress.

Tom had severe dental disease, liver failure caused by hepatic lipidosis, renal failure and pulmonary neoplastic. He was nearly dead when he was brought in to Dr. Mackie for euthanasia. [ 13 ] However, the outward signs of the distress that Dr. Doyle and Dr. Mackie testified to, which they say the Accused would have noticed, were not seen by the Accused. I accept the Accused’s evidence that she did not observe the signs of distress Dr. Doyle and Dr. Mackie testified to.

These include vomiting, increased urination and thirst, pawing at the mouth, inability to eat hard foods, lethargy and lack of eating generally. [ 14 ] The Accused saw no vomiting until September 14 to 15 when Tom vomited blood. At that point she knew Tom was suffering and would have to be euthanized. She knew it couldn’t wait until September 19, when she had an appointment with Dr. Clooney. She

called Riverbend and Tom was euthanized September 16, 2021. When she knew of Tom’s suffering, she immediately dealt with it, not even waiting for her own veterinarian appointment with Dr. Clooney a few days later, despite the fact that Dr. Clooney could come to her home. The fact the Accused did not wait for her own veterinarian appointment demonstrates her genuine desire to avoid Tom’s suffering once she knew of it. She did not want to attend the Riverbend Clinic, having had a previous experience when she and her husband had taken another cat for euthanasia to the Riverbend Clinic.

They heard the cat screaming as it was euthanized and the Accused did not want Tom to die that way. Nevertheless, the Accused did not wait until her appointment with Dr. Clooney September 19, 2021, in order to avoid Tom’s suffering. [ 15 ] The Accused testified that prior to September 14 or 15 th there was no evidence in the house of Tom vomiting, nor in his litter which she cleaned every day. There was no evidence of vomiting on the cat or in his litter, which would have been noticed by the house cleaner as well. I note, too, that although Dr.

Doyle testified Tom would have been vomiting for an extended period of time and that she observed matting from vomiting on his remains when she did the necropsy, Dr. Mackie did not observe any vomit on Tom when he was brought to her for euthanasia. Dr. Doyle testified that she saw crusted fur from vomiting on Tom’s wrists and paw regions as well as the back of his neck, which she attributed to Tom having wiped vomit or puss from his mouth. However, Dr. Mackie was asked a number of times whether she saw anything on Tom’s forelimbs or neck and her evidence is that she did not see the matted fur Dr.

Doyle testified to. Dr. Doyle would have examined the remains after they had been frozen and it is unclear whether this fact might account for the difference in the fur seen by Dr. Mackie. [ 16 ] The Accused also denies that Tom was drinking more water and urinating more frequently and I accept her evidence. Tom’s kitty litter was no different than it had been throughout the several months prior to his death. She denies Tom pawed at his mouth or that his weight loss existed for an extended period of time.

He regained the weight he lost in July but the Accused acknowledges Tom had again lost weight by the time he was euthanized. [ 17 ] The Accused also stated the towel on which Tom’s remains were taken to Pet Heaven Crematorium was soaked when she arrived there. The significance of this may be that the dehydration referred to in the necropsy report of Dr. Doyle would not have been obvious to the Accused in the months prior to the euthanasia, or not present as Dr. Doyle’s testimony indicated. [ 18 ] With respect to appetite, the Accused said it wasn’t until late August that Tom went off his food.

There were changes of food earlier but they included hard and crunchy foods despite any dental issues which may have been present given Dr. Doyle’s evidence. In addition, Tom regained the weight that he lost in July and although the Accused admits Tom again lost weight prior to the euthanasia, it was during that time frame she was attempting to contact Dr. Clooney. [ 19 ] On the whole of the evidence there were no outward signs of her cat’s distress until late August when she attempted to get veterinary help without success for another three weeks.

She took appropriate action when she became aware of his distress. Dr. Clooney’s office, during COVID, was only accepting e-mail communications. As mentioned earlier, the Accused did not want to take her cat to the Riverbend Clinic. She acted reasonably by trying to consult her own veterinarian, Dr. Clooney, especially since she made house calls and her cat became very anxious and stressed about being caged and taken by car to the clinic. [ 20 ] Another significant fact in this case is that cats generally attempt to hide their distress and feral cats, such as Tom, do so even more expertly.

Hence, if Tom was in the distress Dr. Doyle believed, it was hidden by him not only because he was a cat, but because he was a feral cat. This evidence supports the Accused’s testimony that she did not observe outward signs of distress. [ 21 ] On the facts of this case, I am of the view that the Accused was not aware of her cat being in distress and I am not persuaded that her cat was in distress prior to August 27 when she e-mailed Dr. Clooney, although it may have been. At that time, on August 27, she was concerned about diabetes and lung cancer, not the several ailments Dr.

Doyle testified to which occur as part of the aging process. [ 22 ] With respect to the medical evidence in this case, Dr. Doyle testified as an expert in in the field of forensic veterinary medicine, and both Dr. Mackie and Dr. Bruce Rogers testified as experts in the field of veterinary medicine itself. With respect to the evidence of Dr. Doyle and Dr. Mackie, I note that Dr. Doyle is a member of the same clinic from which the complaint to the Calgary Humane Society was initiated by Dr. Mackie. Dr. Doyle has provided the expert evidence to support this complaint.

The potential for the apprehension of bias given the working relationship of Drs. Doyle and Mackie is apparent. They are from the same clinic, are colleagues, and have a working relationship with each other. Dr. Doyle was specifically asked if there could be an appearance of bias when two professionals work closely together, and one person lodges a complaint while the other provides the report to substantiate it. Dr. Doyle admitted that some people might view these circumstances as having an appearance of bias. She testified she knew Dr.

Mackie well and that she has worked with her at the Riverbend Clinic for a long time. [ 23 ] In the decision of White-Burgess, Justice Cromwell described the current approach to bias in expert evidence at paragraph 10: “ In my view, expert witnesses have a duty to the court to give fair, objective and non-partisan opinion evidence. They must be aware of this duty and able and willing to carry it out. If they do not meet this threshold requirement, their evidence should not be admitted.

Once this threshold is met, however, concerns about an expert witness's independence or impartiality should be considered as part of the overall weighing of the costs and benefits of admitting the evidence .” (

a) Professional and association biases had been recognized as ways and expert may be unconsciously predisposed toward a certain positive result, thereby compromising the objectivity required of an expert. In his book entitled Expert Evidence written by Glen R. Anderson, 3 rd edition (Marham: Lexus Nexus Canada 2014) at 16.20, he deals with the unconscious predisposing influences that can color the accuracy or objectivity of expert evidence.

These include: • association bias - the natural tendency of expert witnesses to focus their opinions in the direction in which their interest points, which includes confirmation bias - the unconscious tendency of those who desire a particular outcome to search for things that support

that outcome and to ignore or reinterpret contradictory information; • professional bias — professional influences can skew testimony, which may include defending research or safeguarding credibility. [ 24 ] If it became necessary, I would have given Dr. Doyle’s evidence less weight because of the potential lack of impartiality and independence, given the working relationship she had with Dr. Mackie. However, the totality of the evidence has left me in doubt concerning whether Tom was in distress prior to the Accused’s attempting to deal with the outward signs August 27, 2021. [ 25 ] Dr.

Doyle testified she was the only expert available for the necropsy, but there is evidence she is mistaken, and that the University of Calgary, Faculty of Veterinary Medicine, also provides this service. Dr. Davis, Director of Pathological Veterinarian Medicine at the University of Calgary testified to this effect. [ 26 ] With respect to the medical evidence itself, Dr. Doyle testified as an expert in the field of forensic veterinary medicine, but the evidence shows this is not a recognized specialty by the governing body of veterinary medicine in Alberta.

Nevertheless, on the whole of the evidence, it is clear Dr. Doyle has experience and training in the area of forensic veterinary medicine, an evolving field that will likely be recognized as a specialty in Alberta at some point in the future. Whether the qualifications and content of such training will be the same as that already completed by Dr. Doyle at the University of Florida in 2015 remains to be seen. [ 27 ] In addition to the Accused’s evidence, there is additional expert medical evidence provided by Dr. Bruce Rogers, who questions the

interpretation of Dr. Doyle’s findings. His report, exhibit 13, states that he has observed rapid and significant deterioration in body conditions in animals with serious medical conditions. He has practiced veterinary medicine for decades, some 45 years, and has seen 30 to 50% loss of body weight in a period of a month. His opinions support the evidence of the Accused who testified there was a rapid deterioration of Tom causing her to e-mail Dr. Clooney on August 27, 2021. Dr. Rogers states that many of Dr.

Doyle’s findings are common in 15-year-old cats, and most cats presented for euthanasia in this state are not necropsied as it is an unneeded expense. [ 28 ] It is argued before me that the Accused, having a geriatric cat, was obligated to have regular veterinary attention and the Accused did not bring Tom in to a veterinarian, thereby contravening the Animal Protection Act by depriving her cat of veterinary attention leaving her cat in distress. It is the evidence of Dr.

Rogers that he expects owners of geriatric animals with known medical conditions to come in every six months, but if the geriatric animal has no known medical condition, it would be one year. He would not have reported the Accused to the Calgary Humane Society if Tom had been euthanized by him and does not believe he would be obligated to do so as a professional duty, contrary to the evidence of Dr. Mackie, who testified she had a duty to report this case. [ 29 ] Dr.

Rogers, having practiced veterinary medicine for decades, testified that the Accused acted reasonably given the lack of outward signs she observed and in his opinion the time frame when outward signs of distress appeared to the Accused is reasonable, given his experience in the field of veterinary medicine. He testified the cat may have been in distress for the time frame the Accused noticed and does not agree the age-related deterioration of Tom produced outward signs of distress for an extended period of time.

He did agree it could have been either one or two months where there may have been signs of distress prior to the euthanasia, which coincides with the Accused’s evidence that in late August, approximately one month prior to the euthanasia, she knew it was necessary to contact her veterinarian. [ 30 ] I have not considered that part of the evidence of the Director of Pathological Veterinary Medicine at the University of Calgary, Dr. Davis, which crossed over into expert opinion evidence, since she was not qualified as an expert witness.

She testified to the procedures used by the University of Calgary with respect to necropsies and the fact that the University of Calgary regularly performs necropsies. For that part of her testimony, expert qualifications are not needed since it is not opinion evidence and I have considered that part of her evidence. However, her evidence involved a discussion of the need to avoid speculation, and this evidence crossed over into the area of expertise, such that for the Court to consider it, she would have had to have been qualified as an expert.

She expressed the view that there are gaps in the science and that predicting duration of distress would be difficult for a pathologically trained veterinarian who has not seen the animal alive prior to its death. Accordingly, her evidence with regard to this subject, which arose in the context of speculation, constitutes opinion evidence and has been disregarded in my consideration of the evidence in this case, since she was not qualified as an expert witness.

The Law [ 31 ] The charge before the Court is that between December 16, 2020 and September 16, 2021 the Accused caused or permitted her cat, Tom, to be in distress, contrary to s 2(1) of the Animal Protection Act of Alberta . Distress is defined in s 1(2) of the Act as including deprivation of adequate shelter, ventilation, space, food, water or veterinary care or reasonable protection from injurious heat or cold. It is the position of the Crown that the Accused in this case failed to provide veterinary care to her cat, Tom, and that she caused or permitted him to be in distress as a result of this deprivation.

The issue in this case involves the appropriate care required for a geriatric animal, whose distress, if any, was caused by the natural process of aging. It is the Crown’s position that the Accused’s failure to consult veterinary medical advice as various age-related deteriorations in Tom’s health occurred, caused or permitted her animal to be in distress, contrary to s 2(1) of the Act . [ 32 ] The Animal Protection Act of Alberta is public welfare legislation and s 2(1) is classified as a strict liability offence.

Strict liability exists when the Accused is liable for an action regardless of intent or mental state. In R v Sault Ste. Marie , [1978] 2 SCR 122 ( Sault Ste. Marie ) Justice Dixon writing for the Supreme Court of Canada describes strict liability offences as follows: “Offences in which there is no necessity for the prosecution to prove the existence of mens rea ; the doing of the prohibited act prima facie imports the offence, leaving it open to the Accused to avoid liability by proving that he took all reasonable care.” [ 33 ] The Court explained in Sault Ste.

Marie that in strict liability offences, once the Crown has proven the actus reus , the burden shifts to the defence to show that all reasonable care or due diligence was exercised. If the defence can prove the defence of due diligence, an acquittal should be entered, even though the actus reus has been proven. At paragraph 1325, the Court stated:

“ while the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act, the defendant must only establish on the balance of probabilities that he has a defence of reasonable care. ” [ 34 ] The Supreme Court has also made it clear that one way an Accused can succeed on a due diligence defence is to show that the Accused reasonably believes in a mistaken set of facts. In this regard, the Accused could be found not guilty if, for example, she reasonably believed that Tom was depressed, not ill, suffering, in pain, or otherwise in distress.

The Court has found that the due diligence defence is available if the defendant reasonably believed in a mistaken set of facts that, if true, would have rendered his or her act or omission innocent. ( La Souvereine, Compagnie D’Assurance Generale v Autorité des Marches Financiers , 2013 SCC 63 at para 56 ) [ 35 ] In Sault Ste. Marie the Court dealt specifically with the terms “cause” and “permit” and provided valuable insight into the differences between the terms at page 1329 of the decision.

The “causing” aspect centers on the defendant’s act of undertaking of something which it is in a position to control and which results in pollution. The “permitting” aspect of the offence centers on the defendant’s passive lack of interference or, in other words, its failure to prevent an occurrence which it ought to have foreseen. Conclusion [ 36 ] In the case before me the Crown has failed to prove beyond doubt that Tom was in distress for the nine months Dr.

Doyle testified to, or for any period of time before the Accused noted the outward signs of distress just prior to the August 27, 2021 e-mail sent by the Accused to her veterinarian during the COVID pandemic. At that time Tom had gone off his food, a clear sign of distress for a geriatric cat, and he appeared frail as well. The Accused then took reasonable steps trying without success to get advice from her veterinarian, Dr. Clooney. [ 37 ] In addition to the evidence of the Accused, the evidence of Dr. Rogers, a very experienced veterinarian has caused me to doubt the distress testified to by Dr. Doyle.

Although some or all of the distress Dr. Doyle testified to may have been present, outward signs of distress noticeable to the Accused were not.

Of importance too, is the fact that Tom was a feral cat, and the evidence is that while cats in general hide their distress well, feral cats hide their distress even more so. [ 38 ] If I were wrong in my conclusion that the Crown has failed to prove the actus reus of the offence beyond a reasonable doubt with respect to the time frame prior to late August 2021, I would nevertheless hold that the Accused has proven on a balance of probabilities that she took reasonable care and was duly diligent given the lack of outward signs of distress. [ 39 ] For the time frame prior to late August 27, 2021, there is also an aspect of the Accused mistakenly believing her animal to be depressed rather than ill.

She had just lost her husband who was very involved in the treatment of Tom and both she and Tom had just lost his litter mate in February. Dr. Clooney saw no overt signs of illness or distress when she held Tom in February and the Accused was not aware of any health issues Tom had. Her mistaken belief that Tom suffered from depression was reasonable until late August when she tried to contact Dr. Clooney and signs of illness were apparent to her when he went off his food and appeared frail.

Therefore, for the time frame prior to late August 2021, there is also the defence of mistaken belief in this case, which also constitutes due diligence. [ 40 ] After late August 2021, when the Accused noticed outward signs of distress, she then took reasonable steps, during the COVID 19 pandemic, attempting to have Tom seen by her own veterinarian Dr. Clooney who made house calls. She took all reasonable steps on August 27 to have her cat seen and again contacted her when she did not receive a response.

She was unsuccessful in seeing her veterinarian as quickly as she wanted to, given the restrictions of the COVID pandemic at the time. She was given a date of September 19, 2021 for her own veterinarian to visit her home and advise her, but when it became apparent Tom was in serious distress as a result of vomiting blood, she didn’t wait until September 19, 2021 to alleviate his suffering. She contacted the Riverbend Clinic, despite her misgivings from previous experience at that clinic, and had her cat euthanized on September 16, 2021.

The defence of due diligence had been made out in this case with respect to the time frame after late August as well. [ 41 ] I find the Accused not guilty of the charge before the Court. Dated at the City of Calgary, Alberta this 25 th day of May, 2023. S.L. Van de Veen A Justice of the Alberta Court of Justice

Appearances: J. Munn Gafuik for the Crown J. Williamson for the Accused _______________________________________________________ Corrigendum of the Decision of The Decision of the Honourable Justice S.L. Van de Veen _______________________________________________________ Paragraph 23 was deleted from the original decision and a new paragraph 23 was added to the new decision.