R v Ertman, 2023 ABCJ 214

In the Alberta Court of Justice Citation: R v Ertman, 2023 ABCJ 214 Date: 20231013 Docket: 220444640P1 Registry: Calgary Between: His Majesty the King Crown - and - Kyla Christine Ertman Accused Decision of the Honourable Justice K. B. Molle Table of Contents Overview .. 2 Evidence . 4 1. Before March 10, 2022: Background . 4 2. March 10-13, 2022: The days Leading up to euthanasia . 5 3. March 14: Examination and euthanasia . 6 4. After March 14: CHS report 7 Crown and Defence Positions . 7

Law and Analysis . 8 1. What is the actus reus of s 2(1) of the APA ? . 8 A. Distress . 8 B. Causing or permitting . 8 C. Not the result of reasonable or generally acceptable practices of animal care, management, etc. as described in s 2(2) 9 D. Conclusion . 13 2. Has the Crown proven the actus reus beyond a reasonable doubt? . 14 A. Waiting five months between veterinary appointments . 14 B. Depriving Bella of adequate food . 15 C. Failing to give Bella her medication . 15 D. Allowing Bella’s claws to grow too long and her coat to be dirty . 16 E.

Not taking Bella to emergency two days before her March 14 appointment 16 F. Conclusion: Totality of evidence . 16 3. If the actus reus was proven, has Ms. Ertman proven due diligence? . 17 Concluding Remarks . 17 Overview [ 1 ] When Ms. Kyla Ertman took over the care of Bella, the pit bull terrier, in November 2021, she knew that Bella had cancer and was in palliative care. Bella also had some mobility problems. Nonetheless, Bella was a happy and active dog. It seemed to Ms. Ertman that Bella was doing as well as could be expected and was not in pain. [ 2 ] This changed on March 10 or 11, 2022, when Ms.

Ertman noticed that Bella was breathing abnormally and struggling to use stairs. The next day, Ms. Ertman showed veterinarian Dr. Williams videos of Bella’s breathing. Dr. Williams said that there might be something going on with Bella, and that she could take Bella into the veterinary clinic on Monday, March 14, 2022, for proper examination. [ 3 ] At the clinic on Monday, Dr. Williams determined that Bella’s cancer had spread throughout her body and into to her lungs, causing respiratory distress. She recommended the only option: euthanasia; Ms. Ertman agreed, and it was done. [ 4 ] Suspecting neglect, Dr.

Williams reported the matter. Following a Calgary Humane Society (CHS) investigation, Ms. Ertman is accused of causing or permitting Bella to be in distress contrary to s 2(1) of the Animal Protection Act ( APA ). [ 5 ] The Crown alleges that Ms. Ertman permitted Bella to be in distress by depriving her of adequate food, pain medication, and veterinary care.

The Crown says she should have noticed Bella’s weight loss and broken teeth and should have taken her to the veterinarian to have the broken teeth pulled or had root canals performed, and that Bella had a dirty coat and long claws, which are alleged to be evidence of neglect. [ 6 ] Ms. Ertman disagrees.

She says she fed Bella regularly, gave her the prescribed pain medication and walked her daily; Bella was a happy dog who did not appear to be in pain until the abnormal breathing and stair struggles days before her euthanasia. [ 7 ] This is a strict liability offence, meaning that the Crown need only prove the prohibited act or omission (i.e., the actus reus ); there is no need to prove guilty intent. But if the Crown does prove the actus reus , Ms.

Ertman may avoid liability by proving that she was duly diligent. [ 8 ] At trial, I inquired with counsel whether s 2(2) of the APA is part of the actus reus the offence.

Section 2(2) provides that the offence provision does not apply if the animal’s distress resulted “from a n activity carried on […] in accordance with reasonable and generally accepted practices of animal care [or] management […]. ” [ 9 ] The Crown and Defence submit that s 2(2) simply codifies the due diligence defence. [ 10 ] If counsel were correct, that would mean the Crown could prove all elements of the offence by establishing that the caretaker caused or permitted the animal to be in any degree of pain, or even sick, thereby causing “distress” as defined by the APA .

Taking a pet to a veterinary clinic for routine immunizations, to be neutered, or for low-risk, life-saving surgery would be a quasi-criminal offence, unless due diligence can be made out by the caretaker at a trial. Similarly, many geriatric animals are sick simply because they are old. A caretaker who chooses to keep their sick animal alive instead of having them promptly euthanized commits the actus reus of the

offence. Is this the legislature’s intent? [ 11 ] As such, the questions to be answered in this case are: 1. What is the actus reus of s 2(1) of the APA? Does it include the distress not resulting from reasonable or generally acceptable practices of animal care, etc. as described in s 2(2) of the APA ? 2. Has the Crown that proven the actus reus beyond a reasonable doubt? 3. If the Crown has proven the actus reus beyond a reasonable doubt, has Ms. Ertman proven due diligence on a balance of probabilities? Evidence [ 12 ] The parties tendered an Agreed Statement of Facts admitting that Ms.

Ertman was responsible for Bella’s day-to-day care from November 2021 until March 2022. The further admissions were: • Identity and jurisdiction; • The voluntariness of Ms. Ertman’s March 22, 2022, interview with Peace Officer Gibson; • Dr.

Justine Williams’ qualifications as an expert in the field of veterinary medicine; • The photograph book and the accuracy of its photographs; • VCA Riverbend Animal Hospital’s records relating to Bella; and • The CHS’s records relating to Bella. [ 13 ] The Crown’s evidence also included: • a document titled “Body Condition System,” which provides visual and brief written descriptions of body compositions for dogs and cats that are “too thin,” “ideal,” or “too heavy”; • a letter from Dr. Williams dated March 15, 2022; • Officer Gibson’s viva voce evidence; • Dr.

Williams’ opinion as an expert in veterinary medicine; and • Dr. Williams’ factual evidence about her dealings with Ms. Ertman and examination and treatment of Bella. [ 14 ] Ms. Ertman testified in her own defence and tendered two video clips of Bella recorded by Ms. Ertman which were shown to Dr. Williams on March 12, 2022 (the “Videos”). I reviewed the Videos during the trial and afterward in chambers. 1. Before March 10, 2022: Background [ 15 ] Bella was diagnosed with cancer in 2016 when she was seven years of age. She began palliative care in February 2021 and was prescribed pain medication. Ms.

Ertman took over Bella’s care in November 2021 when Bella’s owner, Ms. Ertman’s boyfriend at the time, went to prison. [ 16 ] Ms. Ertman worked as a receptionist at the veterinary clinic that employed Dr. Williams, where Bella was ultimately euthanized (the “Clinic”). [ 17 ] Bella’s medical records provide relevant history. When Bella was examined in February of 2021, the veterinarian suspected severe joint degenerative disease. Bella was prescribed gabapentin to alleviate the pain associated with the condition. Gabapentin helps relieve pain but does not improve the dog’s ability to walk. [ 18 ] Dr.

Williams explained that, according to the medical records, Bella was diagnosed with mast cell tumour cancer in 2016. Mast cell tumours are unpredictable because they carry the risk of degranulation, meaning they release their contents and have systemic effects throughout the body. Those effects can be ulceration of the skin, vomiting, and increased acidity. Bella was prescribed diphenhydramine and famotidine, over-the-counter medications intended to prevent degranulation of the tumours and to prevent nausea. [ 19 ] In October of 2021, Ms. Ertman and Bella’s owner attended Bella’s wellness appointment, where Dr.

Mackie examined her. The records reveal a concern for mobility in Bella’s back legs. Dr. Mackie recorded that Bella’s owner was giving her gabapentin “as needed.” I note that the transcript states: “The gabapentin does not seem to help but they give it as needed” but the actual medical record reads: “The gabapentin does seem to help but they give it as needed.” The records further indicate that Bella’s owner was concerned that the gabapentin would damage Bella’s internal organs. As of October 14, 2021, Bella weighed about 30 kilograms.

A fractured tooth and gingivitis were noted in the records, but no treatment plan was set out for this broken tooth. [ 20 ] The October 14, 2021, medical records indicate that Bella was, at that time, “not on any other medication or supplements.” Dr. Mackie recommended more regular use of gabapentin and joint supplements, glucosamine, and omega fatty acids. Cartrophen

injections were discussed as well as environmental changes to help Bella in the home. The diphenhydramine and famotidine prescribed in February of 2021 were not part of Bella’s October 2021 treatment plan. [ 21 ] The records also reveal that an ultrasound was booked and conducted by Dr. Doyle of the same Clinic. The report indicated that there were no obvious signs of systemic disease and concluded that the study was “unremarkable.” [ 22 ] Ms. Ertman testified that she had been present for several of Bella’s veterinarian visits prior to taking over her care.

She knew that Bella had cancer and hip mobility problems. She knew that Bella had been prescribed gabapentin for pain, and that Bella’s owner did not give Bella the drug because he believed it was harmful to her. [ 23 ] Ms. Ertman testified that she fed Bella regularly and gave her joint supplements, walked her daily and took her to the park to play with a ball, and administered her pain medication as directed (twice daily, rarely forgetting a dose). She said that Bella was an active and happy dog who did not appear to be in pain up until days before her death.

She also testified that she did not give Bella any other medications because Bella’s owner did not provide her with any other medications. 2. March 10-13, 2022: The days leading up to euthanasia [ 24 ] Ms. Ertman testified that she first became concerned about Bella’s health on March 10 or 11, 2022, after she had stumbled over Bella and noticed that Bella’s breathing was “wheezy” and “panty,” and that Bella had difficulty going up stairs. The next day, she showed the Videos (of Bella’s breathing) to Dr. Williams. [ 25 ] In direct examination, Dr. Williams testified she told Ms.

Ertman that Bella should “probably” be evaluated as soon as possible and would “prefer the emergency care just because there was [ sic ] more facilities available to her going through emergency.” Dr. Williams testified that she told Ms. Ertman she could bring Bella to the Clinic to be seen by her later that day. [ 26 ] On cross examination, Dr. Williams acknowledged that she did not tell Ms. Ertman that Bella’s panting looked like an emergency and that she told Ms. Ertman that she may instead bring Bella in to see her at the Clinic on Monday (March 14) so that she could examine her. [ 27 ] Ms.

Ertman testified that Dr. Williams told her that there might be something going on with Bella, and that she could take Bella into work (at the Clinic) with her on Monday, March 14 “depending on how she was doing”; if Bella were to worsen, she was to take Bella to an emergency facility. She agreed that she did not go home and get Bella because the other option given to her by Dr. Williams was to “bring Bella in on Monday depending on how she was doing.” Ms. Ertman testified that Dr. Williams did not tell her that she could bring Bella to the Clinic to be seen by her later that day. [ 28 ] I find as a fact that Dr.

Williams did not tell Ms. Ertman that Bella’s condition was an emergency, or that Bella needed immediate veterinary treatment. I accept Ms. Ertman’s evidence that she did not take Bella to an emergency facility because Bella was able to go up and down the stairs again within a day and had no further issues. 3. March 14: Examination and euthanasia [ 29 ] On March 14, 2022, Dr. Williams examined Bella. She noted her condition to be dull and quiet (but acknowledged in cross- examination that she did not know Bella nor whether that was normal for her).

She observed that all four of Bella’s “canine” teeth were fractured. The pulp of the teeth were exposed which would have been painful. According to Dr. Williams, force is required to break a dog’s tooth; a cavity would not have caused the fracture. In her opinion, the broken teeth would likely have been caused by a hit to the face, a car accident, or by bar chewing. The fractured teeth would have made if painful for Bella to eat. Treatment could have included removing the teeth or performing root canals.

She noted that Bella appeared dirty, and the nails of her claws had not been recently trimmed, which could cause pain or difficulty walking. [ 30 ] Dr. Williams noticed that Bella had difficulty breathing and was emaciated with a body condition of 2 out of 9 (4 or 5 would be a normal body condition). Her weight was 23.8 kg. [ 31 ] In Dr. Williams’ opinion, the weight loss was due to being nauseated from the mast cell disease and also from “likely being underfed.” In her opinion, Bella was very weak and would have had difficulty walking and getting to her food bowl and going to the bathroom. Dr.

Williams opined that Bella would not have been able get up or down stairs and would not be able to jump. [ 32 ] Ms. Ertman testified to feeding Bella her normal amount of food twice a day and sometimes supplementing it with wet food. She did not notice the weight loss and therefore had no explanation for it. I believe Ms. Ertman’s evidence that she was feeding Bella regularly. I believe her evidence that she did not notice that Bella had lost weight. The Videos do not depict a dog that appears overly thin. [ 33 ] Dr. Williams testified that Bella had fluid around her heart and a thin heartbeat.

There were multiple masses in her heart muscle, which could be metastases from the mast cell tumours or from another cancer. An X-ray revealed ball shaped objects in Bella’s chest cavity and throughout her lungs, meaning that the cancer had metastasized from the primary tumour in the chest cavity. [ 34 ] After examining Bella, Dr. Williams concluded that euthanizing her was the only appropriate option. Bella was in respiratory distress and the cancer had spread throughout her body. [ 35 ] Ms. Ertman testified Dr. Williams told her Bella needed to be euthanized because the cancer had spread. Ms.

Ertman said she was also told there was something wrong with the heart or the lungs, but she could not recall the details. Ms. Ertman testified she was devastated when she learned that Bella needed to be euthanized.

4. After March 14: CHS report [ 36 ] Dr. Williams testified that she made the CHS report because of Bella’s weight loss, concern that Bella had been underfed, and because Bella’s fractured teeth would have caused her pain for what she assumed was an extended period. She felt Ms. Ertman had extended Bella’s period of distress by not taking her to veterinary care two days sooner. She felt Bella was needlessly neglected for an extended period and was in distress for longer than she should have been. She testified that Ms. Ertman should not have waited five months since Bella’s last checkup. In Dr.

Williams’ opinion Bella suffered in pain because she had not received veterinary care and because she had not been receiving her prescribed pain medication. Dr. Williams testified that Ms. Ertman had no excuse for not bringing Bella in sooner since Ms. Ertman was given a reduced rate for veterinary care at the Clinic because she was an employee. [ 37 ] In cross examination, Dr. Williams testified that she would expect a healthy pit bull terrier to live to be 14 years old. She agreed that a lifespan of a pit bull terrier in poor health such as Bella would be less than 14 years.

Crown and Defence Positions [ 38 ] The Crown alleges that Ms. Ertman permitted Bella to be in distress by depriving her of adequate food, pain medication, and veterinary care; Ms. Ertman should have noticed Bella’s weight loss and broken teeth and should have taken her to the veterinarian to have the broken teeth pulled or had root canals performed. The Crown claims that Bella was neglected, citing her having a dirty coat and long claws. [ 39 ] Ms. Ertman rejects the allegations. She says she fed Bella regularly, gave her the prescribed pain medication, and walked her daily.

Until March 10 or 11, 2022, Bella was an active and happy dog and did not appear to be in pain or discomfort. When she noticed Bella’s abnormal breathing, she quickly sought veterinary advice and made and attended a veterinary appointment.

Law and Analysis [ 40 ] Section 2(1) of the APA creates the offence of causing or permitting an animal to be in distress: 2(1) No person shall cause or permit an animal of which the person is the owner or the person in charge to be or to continue to be in distress. [ 41 ] This is a strict liability offence. [1] This means that the Crown must prove the actus reus of the offence but does not have to prove that the accused had mens rea . That is, the Crown need not prove anything about an accused’s state of mind to establish guilt.

What the accused intended or knew, whether they acted with reckless disregard of consequences, or any other subjective fault consideration is irrelevant. [2] 1. What is the actus reus of s 2(1) of the APA ? [ 42 ] Because s 2(1) of the APA creates a strict liability offence, guilt is established by proving the actus reus elements alone.

The question is: What is the actus reus of causing or permitting an animal to be in distress contrary to s 2(1) of the APA ? [ 43 ] Proving guilt of a s 2(1) offence requires the Crown to prove that the accused “caused or permitted” an animal under their care to be in “distress.” The

interpretation of these two actus reus elements is straightforward. “Distress” is defined in the APA and “caused or permitted” is defined in the caselaw. A. Distress Section 1(2) of the APA defines “distress” broadly: 1(2) For the purposes of this Act, an animal is in distress if it is

a) deprived of adequate shelter, ventilation, space, food, water or veterinary care or reasonable protection from injurious heat or cold,

b) injured, sick, in pain or suffering, or

c) abused or subjected to undue hardship, privation or neglect. B. Causing or permitting [ 44 ] In Sault Ste Marie , the Supreme Court considered the words “cause” and “permit,” noting that the terms were often used in public welfare statutes: The present case concerns the

interpretation of two troublesome words frequently found in public welfare statues: “cause” and “permit.” ...

... The “causing” aspect centers on the defendant's active 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. [3] [ 45 ] In Komarnicki , Justice Fradsham applied Sault Ste Marie to find that s 2(1) of the APA is a strict liability offence, citing and implicitly relying on the above

interpretations of “causing” and “permitting” (paras 37-40). Alberta’s courts have since continued to rely on this

interpretation in APA matters. [4] [ 46 ] Applying the relevant statutory language, one causes an animal to be in distress when they actively do something which causes the animal to be in distress; and one permits an animal to be in distress when they fail to prevent something which is in their control and would reasonably foreseeably cause the animal to be in distress. [ 47 ] But whether s 2(2) of the APA creates a third offence-specific actus reus element which the Crown must prove to establish guilt – that the distress was not the result of reasonable and generally accepted practices of animal care, etc. as described in s 2(2) – has not yet been explicitly addressed. [ 48 ] Whether the Crown must also prove that the distress was not the result of reasonable and generally accepted practices of animal care, etc. as described by s 2(2) depends on statutory

interpretation of s 2(2) of the APA . The Alberta Court of Appeal decision in R v Precision Diversified Oilfield Services Corp is instructive and provides a useful framework for this analysis. [5] C. Not the result of reasonable or generally acceptable practices of animal care, management, etc. as described in s 2(2) [ 49 ] Section 2(2) of the APA provides: 2(2) This

section does not apply if the distress results from an activity carried on in accordance with the regulations or in accordance with reasonable and generally accepted practices of animal care, management, husbandry, hunting, fishing, trapping, pest control or slaughter. [ 50 ] Does s 2(2) of the APA codify the due diligence defence or create an actus reus element? [ 51 ] If s 2(2) codifies the due diligence defence, then anyone who causes or permits an animal to be in distress is guilty of a quasi- criminal offence under s 2(1) but may avoid liability by proving due diligence as codified by s 2(2).

If s 2(2) creates an actus reus element, then anyone who causes or permits an animal to be in distress is not guilty under s 2(1) unless the Crown proves that the distress did not result from reasonable and generally accepted practices of animal care, etc., as described in s 2(2). i. No binding authority [ 52 ] No cases bind the Court on this issue. The cases appear to presume that s 2(2) creates a defence and not an actus reus element, [6] and therefore do not create binding authority. [7] ii.

The Precision framework [ 53 ] In Precision , the Court of Appeal considered whether the words in a public welfare statute qualifying a strict liability offence create an actus reus element or simply codify the common law due diligence defence. It was held that the qualifier “as far as it is reasonably practicable for the employer to do so” formed an element of the actus reus for offences under s 2(1) of the Occupational Health and Safety Act ( OHSA ): 2(1) Every employer shall ensure, as far as it is reasonably practicable for the employer to do so, (

a) the health and safety of (

i) workers engaged in the work of that employer … [8] [ 54 ] The Court arrived at this conclusion by employing established principles of statutory

interpretation: • The actus reus of an offence is defined by the words of the Act . [9] • As with all legislation, the words in the

section creating the offence must be read in the entire context “and in their grammatical and ordinary sense harmoniously with the scheme of the act, the object of the act, and the intention of the legislature.” [10] • The legislature is presumed to avoid superfluous or meaningless words, and it does not pointlessly repeat itself or speak in vain. [11] • Every word and provision in a statute has meaning and function, and the courts should avoid

interpretations that would render any portion of a statute meaningless, pointless or redundant. [12] [ 55 ] A plain reading of s 2(1) of the OHSA revealed that it did not frame the “reasonably practicable” component as a defence, or as a way for the employer to avoid liability. There was nothing in the words of the

section that suggested the burden of proof shifted to the employer. The Court concluded that:

The “reasonably practicable” proviso qualifies the otherwise broad and general duty under s. 2(1), but it does not say liability will fall on the employer except or unless the accused shows or establishes it was not reasonably practicable to avoid the unsafe condition. Section 2(1) creates a duty, but says an employers’ duty is merely to do what was reasonably practicable. [13] [ 56 ] On this basis it was held that the Crown must establish, as an element of the actus reus of an offence under s 2(1) of the OHSA , that it was reasonably practicable for the employer to address the unsafe condition through efforts that the employer failed to undertake. [14] The qualifying expression in the

section was not simply a codification of the due diligence defence . [15] [ 57 ] The Court emphasized that the ordinary meaning principle must prevail when interpreting public welfare legislation, notwithstanding the mandate that it be interpreted generously and consistently with its protective purpose: It would no doubt be easier to enforce all kinds of public welfare legislation if the Crown did not have to prove all the elements of the offence beyond a reasonable doubt. But ease of enforcement alone cannot justify disregarding the ordinary meaning of the text and adopting a strained

interpretation instead. [16] [ 58 ] It was explained that after the Crown meets its burden, the accused may establish due diligence through evidence of the foreseeability of the danger, the reasonable steps taken, and whether it was operating under mistake of fact. Although aspects of the actus reus and due diligence analysis may overlap, “it is possible for both sides to meet their obligations on the applicable standard of proof.” [17] iii. Applying the Precision framework and statutory

interpretation principles [ 59 ] Although not strictly binding because it interprets a different regulatory offence under different protective public welfare legislation, [18] the Precision framework provides a useful reference for interpreting s 2(2) of the APA . Both the OHSA and the APA are public welfare legislation, [19] and both Acts create strict liability offences. [20] The OHSA governs the conduct of employers; the APA governs the conduct of people who care for animals.

The objective of the OHSA is to protect employees by ensuring they are treated according to minimum standards of workplace safety; [21] the objective of the APA is to protect animals by ensuring they are treated according to reasonable and generally accepted practices of animal care and management. [22] Both acts contain qualifying provisos which could be interpreted as creating an actus reus element or codifying the due diligence defence. [ 60 ] The Precision framework can be expanded to include the statutory

interpretation principle that the legislature does not intend absurd results: • The actus reus of an offence is defined by the words of the Act . [23] • The words in the

section creating the offence must be read in the entire context “and in their grammatical and ordinary sense harmoniously with the scheme of the act, the object of the act, and the intention of the legislature.” [24] • The legislature is presumed to avoid superfluous or meaningless words, and it does not pointlessly repeat itself or speak in vain. [25] • Every word and provision in a statute has meaning and function, and the courts should avoid

interpretations that would render any portion of a statute meaningless, pointless or redundant. [26] •

Interpretation may require consequentialist analysis because it involves applying legislation to facts in a way that affects the wellbeing of individuals and communities. [27] The legislature is presumed to avoid absurd results, and courts should interpret accordingly. [28] [ 61 ] An ordinary meaning

interpretation suggests that s 2(2) of the APA creates an actus reus element and does not codify a due diligence defence. The “reasonable and generally accepted” proviso of s 2(2) of the APA , as with the “reasonably practicable” proviso of s 2(1) of the OHSA , “qualifies the otherwise broad and general duty under s 2(1), but it does not say liability will fall on the [accused] except or unless the accused shows or establishes [that the distress was not the result of reasonable or generally acceptable practices of animal care, etc.].” [29] The ordinary meaning

interpretation must prevail. [30] [ 62 ] Further, requiring the Crown to prove that distress was not caused by “reasonable and generally accepted practices of animal care...” will not undermine the APA ’s goals. [31] The APA is public welfare legislation intended to protect vulnerable animals “and its provisions ought to be generously interpreted in a manner that is in keeping with its purposes and objectives.” [32] That said, the policy objective of the APA ought to be more completely understood as protecting animals from distress by ensuring they are treated according to reasonable and generally accepted practices of animal care .

The broad definition of distress provided by s 1(2) of the APA – including, for example, permitting an animal to be in pain – suggests as much. Otherwise, as is explained below, absurd results could ensue. [ 63 ] If proof that an animal’s distress did not result from “reasonable and generally accepted practices of animal care, management, [etc.]” were not part of the actus reus , the offence

section could produce absurd results. The legislature would not intend absurd results. [33] [ 64 ] “Distress” includes, for example, “pain.” An

interpretation of s 2(2) as simply codifying the due diligence defence would mean that all elements of an offence under s 2(1) would be made out by a caretaker bringing an animal to a veterinarian for routine immunizations, neutering or other surgical procedures. These medical interventions will cause an animal some pain, and therefore distress.

A caretaker who permits this distress would have committed the actus reus of the offence and will be liable unless they prove due diligence at their trial. [ 65 ] Of course, a caretaker who does not bring their animal to a veterinarian for a necessary surgery may also permit that animal to be in pain, depending on the circumstances. Is the only option for the caretaker to have the animal euthanized, rather than permitting

them to be in temporary pain during the procedure? Surely not in all cases. [ 66 ] Although refusing to allow the euthanasia of an animal who is in considerable pain which may not be permitted or treated may be rightly punishable under the APA , what of the caretaker who chooses to keep an animal alive and in treatment which remedies a significant amount of the animal’s pain and allows the animal to live happily for another five years, rather than having the animal euthanized?

Often, permitting an animal to live is permitting the animal to be in some amount of pain or “suffering.” As with humans, life for an animal is, in part, pain and suffering, especially later in life. This is a biological reality.

The distinction is whether the actions of the caretaker fall within reasonable and generally accepted practices of animal care. [ 67 ] The only fair and logical construction is that the legislature enacted s 2(2) precisely to qualify the words of s 2(1) by clarifying that these kinds of “reasonable and generally accepted practices of animal care [or] management...” will not attract the quasi- criminal liability of the offence of causing an animal to be in distress under s 2(1) of the APA . [ 68 ] The qualifying proviso in s 2(2) creates an actus reus element which the Crown must prove beyond a reasonable doubt to establish an offence under s 2(1).

This is revealed by an ordinary meaning

interpretation and is consistent with the APA ’s purpose. Any other

interpretation could produce absurd results. D. Conclusion [ 69 ] Therefore, to establish an offence under s 2(1) of the APA, the Crown must prove beyond a reasonable doubt that: 1. The animal was in “distress” (as defined in s 1(2) of the APA), 2. The accused “caused or permitted” that distress (as defined in Sault Ste Marie ), and 3. The distress did not result from a reasonable and generally accepted practice under s 2(2) of the APA. 2. Has the Crown proven the actus reus beyond a reasonable doubt? [ 70 ] To establish this offence, the Crown must prove that: 1. Bella was in distress as defined by the Act, 2.

Ms. Ertman caused or permitted that distress, and 3. That distress did not result from a reasonable and generally accepted practice under s 2(2) of the APA. [ 71 ] The Crown alleges that, contrary to s 2(1), Ms. Ertman caused or permitted Bella to be in distress, including pain, suffering, and neglect, by the following conduct: • waiting five months between veterinary appointments, • depriving Bella of adequate food, • depriving Bella of adequate medication, • allowing Bella’s toenails to grow too long, and • not taking Bella to emergency two days before the March 14, 2022 appointment. A.

Waiting five months between veterinary appointments [ 72 ] Dr. Williams testified that Ms. Ertman should not have waited five months from Bella’s October 2021 check up to see a veterinarian. [34] The Crown’s position is that Bella suffered needlessly because she was not taken to see a veterinarian about her pain, teeth, or general health sooner. [ 73 ] I find as a fact that it was not until March 10 or 11, 2022 that Bella displayed any new symptoms requiring veterinary care. When Ms.

Ertman noticed Bella’s abnormal breathing and difficulty getting up the stairs, she took the Videos to show a veterinarian at work the next day. I accept that if Ms. Ertman had notice vomiting or other signs of illness, she would have brought Bella to the Clinic sooner. [ 74 ] I accept Dr. Willams’ evidence that Bella was in respiratory distress because the cancer had spread throughout her body. Ms. Ertman only caused or permitted this distress to the extent that she did not arrange to have Bella euthanized before noticing the signs of respiratory distress.

I find as a fact that this conduct is well within the reasonable and generally accepted practices of animal care. I accept Ms. Ertman’s evidence that Bella seemed to be a happy dog and was in no apparent pain. I find as a fact that Ms. Ertman was administering her prescribed pain medication and giving her joint supplements.

[ 75 ] There is no question that Bella’s four canine teeth were fractured. Dr. Williams suggested that Bella’s teeth could have been pulled out or she could have received root canals for her broken teeth. As of February 2021, Bella was in palliative (i.e., end of life) care. She would not recover from the cancer. The focus of her care was on controlling her cancer symptoms and making her comfortable. I note that Bella had one broken tooth in October of 2021 and Dr.

Mackie’s records do not indicate that she recommended either pulling the tooth or root canals. [ 76 ] The Crown has not proven beyond a reasonable doubt that Ms. Ertman caused Bella pain by permitting her to go without dental treatment. Bella was taking her prescribed pain medication and appeared happy and comfortable. [ 77 ] Even if the Crown had proven that Ms. Ertman caused Bella distress by permitting her to go without dental treatment, I find that conduct is within reasonable and generally accepted practices of animal care in this context.

Although dental surgery might be necessary for a younger, healthy dog, subjecting Bella to the surgery suggested by Dr. Williams would have been unreasonable for a geriatric dog who had been suffering from cancer for years and was already taking pain medication. [ 78 ] Therefore, the Crown has not proven beyond a reasonable doubt that Ms. Ertman caused or permitted Bella to be in distress which did not result from reasonable practices of animal care by waiting five months between veterinary appointments. B. Depriving Bella of adequate food [ 79 ] Though Ms.

Ertman was feeding Bella regularly, Bella lost approximately 7 kg in the five months leading up to her euthanasia. Ms. Ertman did not notice this. The Videos to not depict an overly thin dog. Bella was 23.8 kg when she was euthanized. [ 80 ] There is no evidence as to whether Bella could have been eating regularly yet still lost weight due to her cancer. There was no evidence as to whether all four dogs in Ms. Ertman’s care were being fed at the same time or what procedures were in place during feeding time. [ 81 ] If Bella lost weight due to nausea caused by cancer, this is not something that Ms.

Ertman caused, and it is not something that she reasonably ought to have foreseen. Treatment for nausea was not part of Bella’s October 2021 treatment plan and, therefore, Bella’s weight loss due to nausea was not something Ms. Ertman would have known to be looking for. [ 82 ] I find that Ms. Ertman’s practices in relation to feeding Bella were well within the reasonable and generally accepted practices of animal care. The Crown has not proven beyond a reasonable doubt that Ms. Ertman caused or permitted Bella to be in distress by depriving Bella of adequate food. C.

Failing to give Bella her medication [ 83 ] Based on Dr. Williams’ evidence, it is alleged that Ms. Ertman failed to give Bella gabapentin, diphenhydramine, or famotidine, thereby causing her to be in distress. [ 84 ] This is not borne out by the evidence. I accept that Ms. Ertman gave Bella gabapentin and did not give Bella diphenhydramine or famotidine because she did not know that Bella should have been taking those medications.

She could not have reasonably foreseen that not giving Bella those medications would permit Bella to be in distress because she was not told about them by Bella’s owner, and because there was no indication in the October 2021 treatment plan that Bella was to be taking those medications. [ 85 ] The Crown has not proven beyond a reasonable doubt that Ms. Ertman caused or permitted Bella to be in distress by depriving Bella of prescribed medication. I accept that Ms.

Ertman administered Bella’s prescribed pain medication according to the treatment plan; her conduct was well within the reasonable and generally accepted practices of animal care. D. Allowing Bella’s claws to grow too long and her coat to be dirty [ 86 ] In Dr. Williams’ opinion, Bella’s claws were half a centimeter too long at the time of her death, which may have caused some pain and difficulty walking, and her coat was too dirty, which evidences neglect. [ 87 ] Bella does not appear to be dirty in the Videos.

I am not satisfied that the long claws or ostensibly dirty coat amount to neglect or caused Bella distress. I accept that Bella seemed happy and active until the abnormal breathing issue arose. Ms. Ertman’s failure to clip Bella’s claws sooner was not beyond the reasonable and generally accepted practices of animal care given Bella’s palliative state and apparent comfort. E. Not taking Bella to emergency two days before her March 14 appointment [ 88 ] When Ms. Ertman noticed Bella was breathing abnormally and struggling with stairs, she took the Videos (of the breathing) to Dr. Williams. Dr. Williams told Ms.

Ertman that she could take Bella in to see her at the Clinic on Monday (March 14, 2022). She did not give Ms. Ertman the option of leaving the Clinic to get Bella and having her see Bella that day, and she did not tell Ms. Ertman that Bella’s abnormal breathing was an emergency. Dr. Williams could not conclude from the Videos that Bella’s abnormal breathing was an

emergency. [ 89 ] The Crown has not proven beyond a reasonable doubt that Ms. Ertman caused or permitted Bella to be in distress by not taking her to an emergency clinic prior to Monday March 14, 2022. The abnormal breathing was enough to raise concern about possible distress and a need for veterinary care. The Videos do not depict a dog who appears to be in pain or suffering from an objective lay perspective. The Videos show a dog who objectively appears quite normal, interested and alert to her surroundings and observant of Ms. Ertman, who was taking the Videos.

The Videos appear to depict Bella breathing deeply and somewhat rapidly, or panting but she does not appear to be suffering. [ 90 ] Even if the Crown had proven that Ms. Ertman permitted Bella to be in distress by not taking Bella to a veterinary clinic two days sooner, the offence would not be made out because Ms. Ertman’s conduct fell within the reasonable and generally accepted practices of animal care. Ms.

Ertman took videos of what was happening, showed a veterinarian, received recommended options from that veterinarian, and exercised one of those options: observing that Bella got no worse, she took Bella to receive veterinary care two days later. F. Conclusion: Totality of evidence [ 91 ] The alleged offence is not made out on the totality of the evidence. [ 92 ] I accept Ms. Ertman’s evidence that she cared deeply for Bella and was heartbroken when she learned that her cancer had spread, causing her to be in respiratory distress.

She ensured Bella was fed, sheltered, walked, and taken for veterinary treatment when required. Ms. Ertman cared for Bella in accordance with reasonable and acceptable practices of animal care and management. 3. If the actus reus was proven, has Ms. Ertman proven due diligence? [ 93 ] Once the Crown proves the prohibited act beyond a reasonable doubt, the issue becomes whether the accused can establish on a balance of probabilities a defence of due diligence or reasonable mistake of fact . [35] [ 94 ] Had it been proven that Ms. Ertman caused or permitted Bella to be in distress, I would have concluded that Ms.

Ertman’s conduct was reasonable in the circumstances. She treated Bella with reasonable care given Bella’s age and underlying medical conditions. Even if Ms. Ertman knew that Bella had broken teeth it would not have been reasonable to undergo dental surgery creating additional risks to Bella’s health and wellbeing. The evidence as to why Bella lost weight is unclear, but I do not accept that Ms. Ertman was underfeeding Bella. I accept that Ms. Ertman was giving Bella gabapentin as prescribed.

I also accept that as soon as it became obvious that Bella’s behaviour had changed and that her breathing was abnormal, Ms. Ertman took reasonable steps to get veterinary care first by recording Bella’s breathing and second by following the advice of Dr. Williams and bringing her into the Clinic for an examination. Concluding Remarks [ 95 ] The life expectancy of a healthy pit bull terrier is 14 years old. Bella was 13 years old and had been diagnosed with cancer in 2016. By March of 2022 the cancer had spread, and her lungs were full of tumours.

As a result, she had difficulty breathing, which was depicted in the Videos and described by both Ms. Ertman and Dr. Williams. I accept that when Ms. Ertman brought Bella into the Clinic on March 14, 2022, there was nothing more that could be done for her. The cancer had caused her to be in respiratory distress. In short, Bella was dying from cancer. [ 96 ] The cancer in Bella’s body was undoubtedly causing her pain and discomfort. She had difficulty walking due to hip mobility.

I accept that not all of Bella’s pain was eliminated by the gabapentin. [ 97 ] But the Crown has not proven that any distress Bella did experience was caused or permitted by Ms. Ertman’s conduct falling outside reasonable and generally accepted practices of animal care or management. Ms. Ertman knew Bella was a geriatric dog in palliative care. She was caring for Bella in a reasonable, acceptable manner by giving her pain medication, feeding her regularly and taking her for walks. She took care of Bella in the way society expects caregivers to care for animals. [ 98 ] Ms.

Ertman is not guilty of causing or permitting Bella to be in distress contrary to s 2(1) of the APA. Heard on the 13 th day of October, 2023. Dated at the City of Calgary, Alberta this 13 th day of October, 2023.

K.B. Molle A Justice of the Alberta Court of Justice Appearances: Jo-Ann Munn Gafuik for the Crown Eric Nelson-Addy for the Accused