R. v. Maple Lodge Farms, 2013 ONCJ 535

COURT FILE No.: Brampton 10-1160 DATE: 2013-09-27 Citation: R. v. Maple Lodge Farms , 2013 ONCJ 535 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — MAPLE LODGE FARMS Before Justice N.S.

Kastner Heard on Sept. 9, Sept. 12, Sept. 13, Oct. 6, Nov.28, 2011; and Jan. 5, Jan. 9, Jan. 30, Feb.13, May 8, May 18, Aug.9, Oct.10, 2012; Jan.29, and June 28, 2013 Written submissions by the Crown delivered on Dec. 2012, and written submissions by the Defendant delivered on Jan.18, 2013 Additional Oral Submissions on Jan.29, 2013 Reasons for Judgment released on September 27, 2013 Damien Frost .......................................................................................................... for the Crown Ron E.

Folkes .................................................................. for the defendant Maple Lodge Farms R. v. Maple Lodge Farms - Table of Contents 1. The Charges 2 2. Legal Overview 4 3. Strict Liability Offences 5 4. Position of the Parties 6 5. Actus Reus or Prohibited Act 7 6. Expert Opinion: The Principles 8 6.1 The Experts 11 6.1.a. Dr. Andrew Gomulka 11 6.1.b. Dr. Gordon Doonan 12 6.1.c. Dr. Martin Appelt 12 6.1.d. Dr. Rachel Ouckama 12

6.2 Weight of Opinion Evidence 13 6.3 Other Opinion Evidence 15 7. Factual Overview 15 7.1 General 15 7.2 The Production Process at Maple Lodge Farms 17 7.3 Count 7-December 30 to 31, 2008: Transportation of Broiler Chickens-Trailer T-07 19 7.3.1 Nature of the Birds 19 7.3.2 Weather and Temperature 19 7.3.3 Pickup and Loading 22 7.3.4 Transport to Maple Lodge Farms 24 7.3.5 Arrival and Inspection at Maple Lodge Farms 28 7.3.6 Necropsy and Expert Evidence of Causation 32 a. Canadian Food Inspection Agency Threshold Range for DOAs 32 b. Evidence of Dr. Gomulka 32 c. Evidence of Dr. Gordon Doonan 35 d.

Evidence of Dr. Appelt 38 e. Evidence of Dr. Rachel Ouckama 43 f. Causes of DOAs 46 7.4 Count 34-February 23, 2009: Transportation of Spent Hens-Trailer T-23 47 7.4.1 Nature of the Birds 47 7.4.2 Weather 48 7.4.3 Pickup and Loading 48 7.4.4 Transport to Maple Lodge Farms 50 7.4.5 Arrival and Inspection at Maple Lodge Farms 51 7.4.6 Necropsy and Expert Evidence of Causation 53 8. Legislative

Interpretation 61 8.1 “Undue” 61 8.2 Likelihood 63 8.3 Transportation 64 9. Actus Reus 65 9.1 Actus Reus Argument 65 9.2 Actus Reus Conclusions 69 10. Corporate Liability 70 11. Due Diligence-The Principles 71

11.1 General 71 11.2 Standard of Care 73 11.3 Reasonable Foreseeability 74 11.4 Other Principles 75 12. Due Diligence-The Principles Applied 77 12.1 Gravity of Harm 78 12.2 Industry Standards 78 12.3 Negligence and Likelihood of Harm 80 12.3.1 Standard Operating Procedures 84 12.3.2 Fragility of the Birds 86 12.3.3 History of Other Loads 86 12.3.4 Failure to Monitor Load 89 12.4 Alternatives 90 12.5 Economic Imperatives 92 13. Conclusions 93 13.1 Count 7 93 13.2 Count 34 96 13.3 Conclusion

Summary 98 Appendices COURT FILE No.: Brampton 10-1160 DATE: 2013-09-27 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — MAPLE LODGE FARMS Before Justice N.S. Kastner Heard on Sept. 9, Sept. 12, Sept. 13, Oct. 6, Nov.28, 2011; and Jan. 5, Jan. 9, Jan. 30, Feb.13, May 8, May 18, Aug.9, Oct.10, 2012; Jan.29, and June 28, 2013 Written submissions by the Crown delivered on Dec. 2012, and written submissions by the Defendant delivered on Jan.18, 2013

Additional Oral Submissions on Jan.29, 2013 Reasons for Judgment released on September 27, 2013 Damien Frost .......................................................................................................... for the Crown Ron E.

Folkes ................................................................... for the defendant Maple Lodge Farms KASTNER J.: [ 1 ] Many attribute to Mahatma Gandhi the quote that “the greatness of a nation and its moral progress can be judged by the way its animals are treated.” [1] [ 2 ] The Health of Animals Act [2] is a public welfare statute which governs, inter alia , the way in which animals are treated in Canada, the protection of animals, the importation and export of animals, control of disease, and various regulations for safe food production involving the slaughter of animals.

The statute itself is sub-titled:

An Act respecting diseases and toxic substances that may affect animals or that may be transmitted by animals to persons, and respecting the protection of animals [ 3 ] This case involves both factual and credibility findings, and the application of the law pursuant to the Health of Animals Act and its regulations [3] involving the conditions of the transportation of fowl to Maple Lodge Farms for slaughter. The subject matter of the case is not concerned with whether society should slaughter chicken for food production, or the methods employed.

It deals solely with the humane transportation and pre-kill treatment of two different categories or species of chicken enroute to and at the slaughter facility on two distinct winter dates. 1. The Charges [ 4 ] Maple Lodge Farms is a registered company in the Province of Ontario, as Ontario Corporation 92480. Maple Lodge Farms appointed Mr.

Ben Durose, a former supervisor, to be its corporate representative at this trial. [ 5 ] Maple Lodge Farms Ltd. is charged pursuant to a federal statute, the Health of Animals Act and the regulations, the Health of Animals Regulations , enacted thereunder. [ 6 ] The corporation has been charged on two separate Informations with a total of 60 counts averred. The first Information sworn on January 27, 2010 contains 38 counts. The second Information sworn on July 14, 2010 contains 22 counts.

It was agreed between counsel and the judge presiding over the Judicial Pre-Trial that two representative counts would first be tried together, in order to assist the process of adjudicating or resolving the other 58 counts.

The two representative counts are counts 7 and 34 on the first Information. [ 7 ] The two representative counts the corporation is tried on are the following: Count 7: that MAPLE LODGE FARMS LTD., Ontario Corporation 92480, 8301 Winston Churchill Blvd., Brampton, Ontario, on or about the 30 th and 31 st days of December, 2008, in the Province of Ontario, unlawfully did transport an animal, to wit; 9,576 chickens between Clifford, ON and Brampton, ON on trailer T-07, including 711 chickens found “dead on arrival” at unloading, in a motor vehicle where injury or undue suffering was likely to be caused to the animal by reason of undue exposure to the weather, contrary to section 143(1) (

d) of the Health of Animals Regulations , made pursuant to the Health of Animals Act (1990, c.21), and did thereby commit an offence under section 65(1) of the said Act; and Count 34 that MAPLE LODGE FARMS LTD., Ontario Corporation 92480, 8301 Winston Churchill Blvd., Brampton, Ontario, on or about the 23 rd day of February, 2009, in the Province of Ontario, unlawfully did transport an animal, to wit; 10,944 chickens between Moorefield,

ON and Brampton, ON, on trailer T-23, including 1181 chickens found “dead on arrival” at unloading , in a motor vehicle where injury or undue suffering was likely to be caused to the animal by reason of undue exposure to the weather, contrary to section 143(1) (

d) of the Health of Animals Regulations made pursuant to the Health of Animals Act (1990, c.21), and did thereby commit an offence under section 65(1) of the said Act. [ 8 ] The Crown proceeded summarily and the litigants then chose to have a trial before a Judge of the Ontario Court of Justice. [ 9 ] The trial was focused by two very capable counsel and a number of evidentiary matters were agreed upon, yet it remained complex and lengthy due to the subject matter of the charges, which involved multifaceted veterinary evidence, expert evidence and evidence of the intricacies of chicken production in Canada. [ 10 ] Both counsel for the Public Prosecution Service of Canada and counsel for Maple Lodge Farms made extensive written submissions [4] at the conclusion of the evidentiary hearing, and then made some additional oral submissions in late January. [ 11 ] The Court is indebted to the thorough and well organized submissions of both counsel, and has considered all of the written and viva voce submissions, even if they are not all expressly referred to in these reasons.

The thoroughness of the written submissions is such that the Court has incorporated several excerpts from them in this judgment [5] . The case has been a model of excellent advocacy on both sides. 2. Legal Overview [ 12 ] The Maple Lodge Farms facility in Brampton Ontario is a registered meat processing facility under the federal Meat Inspection Act and Regulations .

All such facilities that receive live animals must also comply with the provisions of the Health of Animals Act and Regulations , including provisions governing the humane transportation of animals, including chickens, being transported for processing. [ 13 ] The evidence heard in this case places Maple Lodge Farms as one of the preeminent industries in Canada for chicken production, transportation, slaughter, and marketing. The corporation is involved in the business of chicken feed, chicken hatcheries, and meat production.

Maple Lodge Farms accounts for approximately twenty-four to thirty percent (24% to 30%) of the Ontario broiler processing market, and ninety-eight or ninety-nine (98 or 99%) of the fowl processing market in Ontario, [ 14 ] The Canadian Food Inspection Agency maintains a contingent of inspectors and veterinarians who conduct inspections at that facility to ensure compliance with the Health of Animals Act and its Regulations. [ 15 ] The prosecution alleges a breach of Section 143(1) (

d) of the Health of Animals Regulations , which reads, in part, as follows: 143.

(1) No person shall transport or cause to be transported any animal in a railway car, motor vehicle, aircraft, vessel, crate or container if injury or undue suffering is likely to be caused to the animal by reason of (

d) undue exposure to the weather ; [ 16 ]

Section 65 of the Health of Animals Act creates an offence for contravention of the Act and reads that: 65.

(1) Every person who contravenes any provision of this Act , other than

section 15, or the regulations or who refuses or neglects to perform any duty imposed by or under the Act or the regulations is guilty of (

a) an offence punishable on

summary conviction and liable to a fine not exceeding fifty thousand dollars or to imprisonment for a term not exceeding six months, or to both; or (

b) an indictable offence and liable to a fine not exceeding two hundred and fifty thousand dollars or to imprisonment for a term not exceeding two years, or to both.[emphasis added] 3. Strict Liability Offences [ 17 ] Offences created by the Health of Animals Act and the Health of Animals Act Regulations may be either subject to the Administrative Monetary Penalties (AMP) regime, or prosecuted as offences.

Where Administrative Monetary Penalties are levied, the offences are considered to be absolute liability offences. [6] [ 18 ] Public welfare offences are generally presumptively strict liability offences. [ 19 ] The object of the Health of Animals Act and its regulations is to promote the humane treatment of animals and to prevent their mistreatment. Offences created by

Section 65 of the Health of Animals Act are regulatory in nature and are public welfare offences. [7]

[20] A breach of

Section 65 of the Health of Animals Act, when prosecuted as offences rather than AMPs, is a strict liabilityoffence with an available defence of due diligence, as per R. v. Sault Ste. Marie (SCC), [1978] 2 S.C.R. 1299: Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of theprohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonablecare. This involves consideration of what a reasonable man would have done in the circumstances.

The defence will be available if theaccused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took allreasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. [21] The burden rests upon the Crown to prove the defendant committed the alleged prohibited acts, or actus reus, beyond areasonable doubt. [22] The Crown need not prove mens rea.

Once the Crown has proven that the defendant committed the prohibited act, theoffence has been prima facie established. [23] Mistake of fact is not at issue in this case if the Crown proves the defendant committed the prohibited acts. [24] The defendant company can escape liability if they establish, on a balance of probabilities, that they exercised all duediligence to prevent the prohibited acts from occurring. [25] The Supreme Court of Canada explained 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 primafacie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care.

This involvesconsideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonablybelieved in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoidthe particular event. These offences may properly be called offences of strict liability.” (emphasis added) And regarding the burden of proof[8]: “In this doctrine it is not up to the prosecution to prove negligence. Instead, it is open to the defendant to prove that all due carehas been taken.

This burden falls upon the defendant as he is the only one who will generally have the means of proof. This would notseem unfair as the alternative is absolute liability which denies an accused any defence whatsoever. While the prosecution must provebeyond a reasonable doubt that the defendant committed the prohibited act, the defendant must only establish on the balance ofprobabilities that he has a defence of reasonable care.” (emphasis added) 4.

Position of the Parties [26] The Crown asserts that they have proven the actus reus of both of the offences beyond a reasonable doubt, and that MapleLodge Farms has failed to establish on a balance of probabilities that they exercised all due diligence to prevent the breach of theregulation in question. [27] It is the Crown’s position that the defendant was solely responsible for the transportation of both loads of chicken inquestion in these two counts, in excess of 20,000 chickens, and that almost ten percent of those chickens, or 1,892 birds did not survivethe relatively short trip to Maple Lodge Farms.

The death of those birds would be accompanied by undue suffering. [28] The Crown further submits that the remaining live birds also suffered unduly due to conditions that unduly exposed themto inclement winter weather conditions.[9] [29] Maple Lodge Farms submits that the Crown has failed to establish the actus reus of the offences to the requisite degree ofproof.

The defendant submits that the Crown has not proven beyond a reasonable doubt with respect to either count that it transportedchickens where injury or undue suffering was likely to be caused by reason of undue exposure to weather. [30] In the alternative, the defendant submits that it has met the burden resting on it to demonstrate that it was duly diligent.The three main reasons for its position is that the defendant asserts it has demonstrated (

a) what likely happened to cause the highmortality of the two loads of chicken; (

b) the probable reasons why loads of chickens suffered high levels of mortality; and (

c) that ittook all reasonable steps to prevent the chickens from suffering mortality through undue exposure to the weather on a motor vehicle.Thus, the defendant submits it took reasonable care or due diligence. [31] The Crown argues that the defendant has failed to show due diligence with regard to either load. Regarding the broilerload, the Crown submits it has proven actual neglect in relation to the transportation of these birds because (

a) they failed to comply withtheir own Standard Operating Procedures; (

b) they failed to comply with the industry standards set out in the Canadian Agri-FoodResearch Council’s Recommended Codes of Practise;[10] (

c) they failed to monitor the load on an hourly basis, and; (

d) there is aninference of a mentality of profits ahead of animal welfare.[11] [32] Regarding the load of spent hens, the Crown submits there is no evidence that any reasonable steps were taken in relationto their transport, and certainly no evidence that all reasonable steps were taken to prevent undue suffering and undue exposure toweather. Mr. Frost also submits that the lack of cost for the birds in this “salvage operation” is reflected in their manner of treatment.

5. Actus Reus or Prohibited Act [33] It is alleged that Maple Lodge Farms contravened the Regulation averred by transporting both the broiler chickens onNew Years’ Eve Day 2008, and the spent hens on Feb.23, 2009, where injury or undue suffering was likely to be caused to the birds byreason of undue exposure to the weather. Thus, it is alleged that the defendant contravened

Section 65 of the Health of Animals Act. [34] The Crown must prove these essential elements beyond a reasonable doubt. Each count and factual circumstances shouldbe separately weighed and adjudicated, as the result for any one of the counts does not necessarily determine the decision on the othercount. [35] There are however many similar circumstances or considerations which may bare relevance to both counts on both theissue of alleged infringement, and the issue of due diligence. 6. Expert Opinion: The Principles [36] Opinion evidence is generally not admissible.

One exception is expert evidence. [37] The Supreme Court of Canada set out the 4 criteria or pre-conditions for admissibility of this evidence in the decision ofR. v.

Mohan[12] that the proffered evidence is: (1) relevant; (2) necessary; (3) not subject to any applicable exclusionary rule; and (4) to be advanced through the testimony of aproperly qualified expert. [38] If the evidence meets this threshold four-part test, the Court moves on to the second stage of the admissibility analysiswhich involves balancing the probative value of the expert evidence against its prejudicial effect. [39] A trial judge must determine the nature and scope of the proposed expert evidence. As stressed by Justice Doherty in R.v.

Abbey[13] at para. 62: The admissibility inquiry is not conducted in a vacuum. Before deciding admissibility, a trial judge must determine the nature and scopeof the proposed expert evidence. In doing so, the trial judge sets not only the boundaries of the proposed expert evidence but also, ifnecessary, the language in which the expert's opinion may be proffered so as to minimize any potential harm to the trial process. [40] His Lordship indicates that a "cautious delineation of the scope of the proposed expert evidence and strict adherence tothose boundaries, if the evidence is admitted, are essential".

Justice Doherty outlines the reasons for such a delineation in Abbey[14]: A determination of the scope of the proposed expert opinion evidence and the manner in which it may be presented to the jury ifadmissible will be made after a voir dire. The procedures to be followed on that voir dire are for the trial judge to decide. Sometimes theexpert must be examined and cross-examined on the voir dire to ensure that the proposed evidence is properly understood. At theconclusion of the voir dire, the trial judge must identify with exactitude the scope of the proposed opinion that may be admissible.

He orshe will also decide whether certain terminology used by the expert is unnecessary to the opinion and potentially misleading: see R. v. G.(P.) (2009), 2009 ONCA 32 , 242 C.C.C. (3d) 558, at para. 16 (Ont. C.A.). Admissibility is not an all or nothing proposition.Nor is the trial judge limited to either accepting or rejecting the opinion evidence as tendered by one party or the other. The trial judgemay admit part of the proffered testimony, modify the nature or scope of the proposed opinion, or edit the language used to frame thatopinion: see, for example, R. v.

Wilson (2002), (ON SC), 166 C.C.C. (3d) 294 (Ont. S.C.). The importance of properly defining the limits and nature of proposed expert opinion evidence and the language to be used by the expertis one of the valuable lessons learned from the Inquiry into Pediatric Forensic Pathology in Ontario. That inquiry examined the forensicwork of Dr. Charles Smith, who at the time was considered to be a leading pediatric pathologist in Ontario. The inquiry determined that,among other failings, Dr. Smith often went beyond the limits of his expertise when offering opinions in his testimony.

His excesses weresometimes not caught by the court or counsel and, along with other shortcomings, led to several miscarriages of justice. Goudge J.A., theCommissioner, stressed the trial judge's obligation to take an active role in framing the scope and the language of the proposed expertopinion evidence. He observed at pp. 499-500: A final outcome from the admissibility process is a clear definition of the scope of the expertise that a particular witness is qualified togive.

As discussed in the earlier part of this chapter, it will be beneficial to define the range of expertise with as much precision aspossible so that all the parties and the witness are alerted to areas where the witness has not been qualified to give evidence. ...

As Iearlier recommended, the trial judge should take steps at the outset to define clearly the proposed subject area of the witness's expertise.At the conclusion of the voir dire, the trial judge will be well situated to rule with precision on what the witness can and cannot say.These steps will help to ensure that the witness's testimony, when given, can be confined to permissible areas and that it meets therequirement of threshold reliability. [Emphasis added.] [41] Both parties properly concede the expertise of each of the expert veterinary witnesses in their respective field, butreserved considerable argument on the weight to be given to each of their opinions. [42] Professor Adam Dodek[15] provides a very helpful

summary of the purpose of expert witnesses in the scientific field andtheir ethical obligations:

The expert witness is a special kind of witness. As set out in

chapter 1, the traditional common law rule, also applicable in Quebec courts, is that witnesses are not supposed to offer opinions. They are supposed to testify about their personal knowledge of the facts in dispute. The two exceptions to this general exclusionary rule are explained in

chapter 1: in certain circumstances, lay witnesses may offer their opinions and the expert witness’s testimony is a general exception, provided certain admissibility criteria are met. Thus, the expert is the only type of witness who is generally expected to testify as to his or her opinion. The expert’s role is to assist the court by providing an independent and unbiased opinion about the matters coming within the witness’s expertise.

The expert witness is in a unique position because the judge without knowledge or expertise in the subject matter may rely on the expert in making a finding that may have significant impact on the parties to the litigation…. . There is a fundamental tension between the independence required of the expert and the operation of the expert witness within the adversarial system. Specifically, the expert witness is usually retained, instructed and paid for by one of the parties.

This immediately raises questions about the expert’s required objectivity because either consciously or sub-consciously, it is natural that the expert will want to please the party that has hired him, a phenomenon known as adversarial bias. The common law has long recognized these tensions but also has clearly enunciated that the expert’s duty to the court is overriding.

As stated by Justice Slatter of the Alberta Court of Appeal, the expert may have multiple, potentially conflicting obligations: “While an expert witness has obligations to his or her client, and his or her professional organization and to the court, the expert’s duty to the court is paramount.” [16] Moreover, many experts themselves misunderstand their role [17] . As a leading Canadian text on expert evidence explains: Attitudes and expectations inherent in the adversarial system foster certain beliefs about the role of the expert witness.

Some expert witnesses genuinely view it as their proper role to assist persons employing them by whatever means is enabled by their specialized knowledge. These experts are biased, but not necessarily dishonest. They do, however, overlook their primary duty to assist judges and juries.

These expert advocates assist their clients in several ways, including providing opinions outside specialized knowledge or skill; considering irrelevant facts; using scientific evidence with little probative value; failing to consider alternative explanations; failing to disclose facts, documents or errors; failing to communicate limitations; overstating probative value and using potentially misleading language. [18] [ 43 ] The expert’s duties to the court are set out in the common law, professional codes of conduct, and expert witness codes of conduct or obligations that may be incorporated into court rules.

These are generally consistent and tend to differ only in the extent of their detailing of the expert’s duties. [ 44 ] To the extent that the conduct of an expert witness raises ethical issues, the key points for the judge are (1) determining what conduct by the expert witness is improper; (2) determining whether malfeasance goes to the admissibility of the expert witness’s testimony or to its weight; and (3) whether any appropriate additional measures are required when an expert is found to have violated their duty to the court. [ 45 ] The Court bears all those principles in mind in assessing the evidence proffered by the expert witnesses in this case. 6.1 The Experts [ 46 ] A number of witnesses called in this trial fall under the category of expert witnesses, permitted to give opinion evidence in their scientific field. [ 47 ] Both Mr.

Frost, on behalf of the Crown, and Mr. Folkes, on behalf of Maple Lodge Farms, did not so much contest the qualifications of these witnesses, nor that they did meet the Mohan criteria for admissibility. Therefore, the Court received their evidence, but bears in mind the “specific delineation of the scope of the proposed expert evidence and strict adherence to those boundaries”. [ 48 ] I will briefly outline their qualifications and roles [19] : 6.1. a. Dr. Andrew Gomulka Dr. Gomulka is employed by Canadian Food Inspection Agency as a veterinarian.

At the material times, he was embedded at the Maple Lodge Farms facility. Parts of his duties include viewing the trailer loads as they arrive at the slaughter line, collecting samples and performing necropsies. [20]

Dr. Gomulka examined trailer T-07 at the facility on Dec.31, 2008 and made some notes of his observations. He collected and caused to be collected sample of birds which were being unloaded and performed necropsies on them. He also performed necropsies on the sample birds from trailer T-23 at the facility on February 23, 2009. His primary duty is to inspect slaughtered carcasses on the line, but he does do ante-mortem inspection on loads. 6.1.b. Dr. Gordon Doonan Dr. Doonan is also an employee and veterinarian of Canadian Food Inspection Agency in the head office.

He has been qualified to give evidence as an expert in other proceedings, mostly at tribunals. Dr. Doonan was involved with developing industry guidelines for handling and transporting live poultry. 6.1.c. Dr. Martin Appelt Dr. Appelt is a highly qualified veterinarian and national manager at the ministerial level in the Canadian Food Inspection Agency. He serves as an administrator in an area responsible for policy development of meat programs and is in charge of groups of technical specialists, including national specialists of poultry.

His work focuses on many species of animals and birds coming into or within Canada. Dr. Appelt is also known for his work on animal welfare and animal transportation. He is a national technical specialist on animal transport, and has worked with the government to set standards for the transportation of poultry. 6.1.d Dr. Rachel Ouckama Dr. Ouckama is a veterinarian employed by Curtis Chicks, a division of Maple Lodge Farms. She is also highly qualified in the area of poultry production, particularly at the hatchery level [21] .

Her expertise has been drawn on by several committees in the federal agricultural arena. Among papers Dr. Ouckama wrote, she did a study on the conditions and effects of the holding barn on mortality in 2007, and identified causes of high “dead on arrivals “ (DOAs) on loads of chickens in a four year study. [ 49 ] There was considerable common ground between the expert witnesses in some areas. All are veterinarians by training. [ 50 ] Dr. Appelt, who earned a Ph.D. graduate degree in animal transport, and Dr.

Doonan both relied in their evidence upon the Code of Practice for Handling and Transportation of Live Poultry , which both Dr. Doonan and Dr. Ouckama had a role in developing. [ 51 ] These reasons will deal in depth with their evidence. 6.2. Weight of Opinion Evidence [ 52 ] Although many of the extremely detailed factual issues have been discussed supra and infra in these reasons in which I consider the opinion of the expert witnesses and the weight to be accorded to them, I wish to make some general comments. [ 53 ] Mr. Frost submits that Dr.

Ouckama is far more of an advocate than a detached or neutral witness, and provided several examples. [ 54 ] He also argues that Dr. Ouckama's retainer and employment dictate the tenor of her opinions. Whether that is an accurate assessment or not, the argument cuts both ways, as the Crown also relies upon expert opinion of the federal agency that retains him. The Court is capable of assessing the neutrality or partiality of any witness, and the weight to be accorded to opinion evidence.

[ 55 ] Dr. Appelt, Dr. Doonan and Dr. Ouckama are each well respected in their field. Although the Canadian Food Inspection Agency experts gave favourable comments on the contribution of Dr. Ouckama in the area of the poultry industry, she appeared quite reticent to give sufficient credit to Dr. Appelt for his expertise in the transportation of animals. [ 56 ] Dr. Ouckama knows poultry, but the bulk of her experience is with respect to the hatchery business. She has been employed by a subsidiary of Maple Lodge Farms for a number of years.

Much of the data she uses in her research is supplied by Maple Lodge Farms and is not industry wide material. [ 57 ] She attended each date of the trial, over many appearances. Some of her evidence is a comment on her opinion about the non-veterinary evidence of other witnesses. She appeared to perceive her role in that regard as advocating for the defendant. Unfortunately, after examining all of her evidence and observing her in the courtroom, it is apparent to me that Dr. Ouckama, while not a dishonest witness, is either prepared to exaggerate or misinterpret the records to suit her theory or opinion.

This is what has been referred to as “adversarial bias” in the legal authorities. [ 58 ] The foundation for her opinion in some areas is also not established on the evidence, and would thus reduce the weight to be given to it. Dr.

Ouckama resorts to adamantly restating her opinion when challenged in cross-examination. [ 59 ] Any concerns as to her neutrality arguably goes to both qualification and the gate keeper function of the Court, because the Crown submits that if someone is clearly so biased and lacking impartiality, it is more prejudicial than probative to the fact finding process. [ 60 ] This is a trial by judge alone and the Court is capable of overcoming the danger that any lack of impartiality would pose in assessing the weight to be given to the evidence. [ 61 ] Dr. Ouckama is passionate about avian veterinary medicine.

Some expert witnesses genuinely view it as their proper role to assist persons employing them by whatever means is enabled by their specialized knowledge. “These experts are biased, but not necessarily dishonest”. That is a fair assessment of Dr. Ouckama. It is not her honesty that is questioned, but her adversarial bias or reliability to assist the Court with impartial evidence confined to the area of her expertise. [ 62 ] Some significant flaws permeate Dr. Ouckama’s testimony, Dr.

Ouckama applies a broad brush for many of her assertions, and it is difficult for her to discern when she is commenting on an area outside her expertise, which she does frequently. [ 63 ] She came across as partisan and nonsensical at times [22] . The overreach referred to in her evidence in areas such as crate temperatures tainted some of her other opinions. [ 64 ] Where her opinions differ on certain of the issues from that of Dr. Appelt, who was a very fair and knowledgeable witness, the Court prefers the opinion of Dr. Appelt, particularly on the issues of transportation of animals. [ 65 ] While Dr.

Ouckama attempted to persuade the Court, or advocate a position on the ultimate issues, Dr. Appelt understood and stated his role in the trial as an expert witness who may aid the Court in reaching a conclusion. [ 66 ] Dr. Gomulka’s evidence is more limited to his observations on the alleged offence dates and the necropsies he performed. He has a great deal of experience on the production line, and he knows that cause of death is an issue on these facts, whether a charge would eventually be laid or not. Canada trusts front-line veterinarians like Dr.

Gomulka to ensure that contaminated meat and diseased meat does not enter the production line. He is skilled in that area, and very capable in making assessments on disease in general. [ 67 ] I note that hindsight quarterbacking of the necropsy is not particularly helpful. Other experts only have their

interpretation of his notes and photos. They were not there to make visual and sensory observations. [ 68 ] Dr. Appelt testified that Dr. Gomulka’s necropsies were appropriate, both in the number of samples taken and that the process met his expectations. Moderate cyanosis is not specific to a particular cause of death and is a common finding in birds that died, as is high blood content and congested organs. It would also be normal to have an empty proventriculus, because feed was withheld before transport. [ 69 ] If Dr.

Gomulka missed something significant, that would seriously impair the weight to be given to his evidence. It is not submitted he made errors in the examination of the samples he received. However, if the complaint is the failure to send certain samples off for outside testing to “rule-out” other causes of death, I must evaluate, inter alia ,

i) if it would be reasonable to do so in all the circumstances; and ii) whether it is justified on a cost vs. benefit analysis. [ 70 ] It was Dr. Appelt’s opinion that both blood gas and acid base testing are cost associated, and they cannot be done on location. Samples would have to be sent out to a lab for analysis, and the turnaround time is several days.

In his opinion, conditions presented at necropsy did not warrant such additional examination. [ 71 ] I note that in a Utopian world, the Cadillac of necropsies would have the veterinarian dissect all internal organs, and have organic chemistry tests done upon them; but even a K-car can arrive at the same destination as the Cadillac. [ 72 ] In addition, Dr. Appelt used the condemnation form as a “rule out”, because it shows that amongst the live birds fit to be slaughtered, no other outstanding abnormalities were found. 6.3 Other Opinion Evidence

[ 73 ] Some witnesses were permitted to give lay opinion evidence without objection based on their experience; for example the two drivers of the trailers, and Mr. Durose and Mr. Finnigan. 7. Factual Overview 7.1 General [ 74 ] I will attempt to give a general and simplified overview of how poultry comes to be presented to Maple Lodge Farms for slaughter. Specified eggs are collected and hatched in controlled conditions in the hatchery.

After hatching the baby chicks, they are transported in climate controlled vehicles to the poultry farms. [ 75 ] Some female hens are kept in laying barns specially designed for the production of eggs. These “spent hens” are kept in cages with others, and they lay eggs for about seventy-two weeks. Egg production both depletes their supply of calcium causing brittle bones, and reduces their feathering.

At the end of their laying cycle, they are gathered by “catchers” into crates and stacked on flatbed trailers, where they are “salvaged” and transported to a slaughter facility to be made into various chicken by-products. A new flock of laying hens is introduced to the barn once it is cleared out and cleaned and the cycle repeats. [ 76 ] Male broilers are also transported as chicks in climate controlled vehicles to awaiting farms. They are fed specially designed feed [23] to induce rapid growth. At the time they are to be killed, they are “adolescent” or “juvenile” birds approximately one month old.

They are grown to specified weights as proscribed by the industry purchasers, and then caught by “catchers” and placed into crates and transported on flat bed trailers to Maple Lodge Farms where they are hung upside down on shackles, placed on a conveyor belt, stunned by electrical equipment and slaughtered. [ 77 ] The meat industry is generally “just in time”, meaning the whole life cycle of the chickens is managed within tight parameters to meet regulated demand, and maintain the slaughter schedules as planned.

Flock sheets are sent by the farmers to Maple Lodge Farms a few days in advance of transportation to show the state of health of the flock, and when feed withdrawal is to take place.

Food is withdrawn within a certain number of hours of loading of the birds for pickup, but water is not withdrawn. [ 78 ] The Canadian Food Inspection Agency has a number of inspectors and veterinarians who work directly in Maple Lodge Farms and other slaughterhouses to ensure compliance with the Health of Animals Act and Regulations, so that animals are treated humanely, and Canada’s meat supply if free of disease and any health risks. [ 79 ] The Canadian Food Inspection Agency employees at Maple Lodge Farms do some ante-mortem inspections, making notes and taking photographs.

They also do line inspections, and necropsies post-mortem in accordance with their role. [ 80 ] The inspectors file a report of “condemns” from live birds inspected on the production line. These reports are titled Poultry Condemnation Certificates. They list carcasses condemned for respiratory conditions, sub-cut conditions, leg conditions, skin conditions, abdominal oedema, liver conditions, emaciation or other causes. Any birds condemned do not enter the food production. 7.2 The Production Process at Maple Lodge Farms [ 81 ] At the time of the offences alleged, Mr.

Ben Durose was the live-haul quality coordinator for Maple Lodge Farms. He testified about the planning and transportation process for loads of broiler chickens. [ 82 ] The Maple Lodge plant processes chickens in two daily shifts, starting at approximately 4:00 a.m. and finishing at 8:30 or 9:00 p.m. In a typical day, between 20 and 30 loads of broiler chickens were processed, together with approximately 15 loads of fowl chicken [24] . There were two slaughter lines segregating these species types.

The live-haul coordinator must plan to ensure that loads are always available for the plant, which employs approximately 1,500 people. The company aims to have a continuous stream of loads of chicken available. Each load takes between 20 and 40 minutes to unload, by removing chickens from the Ralide crates and hanging them on shackles to be presented for euthanasia and humane slaughter. [ 83 ] Haulage on the trucks must be coordinated, so that the birds are loaded as quickly as possible, to avoid undue heat build- up in loads.

Their transport time must be calculated accurately, over carefully-mapped routes, to avoid accident or road delays, which can also prove fatal to loads of chickens. The arriving loads of chickens are weighed in and prepared for holding or lairage in a protected shelter, known as Barn One, where drivers remove top tarps, loosen side tarps and inspect the load for signs of distress in the birds. The trailers are then moved to a climate-controlled holding barn, Barn Two, which is protected in winter. It has gentle ceiling ventilation. Holding time in the barns is attempted to be minimized, especially for broilers.

The loads are then re-weighed and taken to the live- receiving room for unloading within a few targeted hours [25] . [ 84 ] The planning process takes place five days per week throughout the year. The Defendant has had excellent success in hauling loads of broilers in the past, even in very cold weather [26] .

[ 85 ] The Maple Lodge Farms Bird Handling and Welfare Program, also referred to as the Standard Operating Procedures (SOP), outlines the steps to be taken by drivers to minimize exposure of chickens to all types of weather, from extremes of heat to extremes of cold. These are congruent with industry-wide guidelines in a “Recommended Code of Practice” produced by the Canadian Agri-Food Research Council.

These instructions detail crate density to achieve a balance between thermal heat production and ventilation on the load; and tarping procedures, while loading and during transit, to protect the birds on board from the elements.

These procedures include a number of checks to ensure that the haulage equipment, crates and tarps are in good operating condition and function as intended, to avoid mishaps in transit which could prove fatal for the birds. [ 86 ] In accordance with the SOP, once the birds arrive at Maple Lodge Farms, there are further detailed handling procedures outlined to maximize the welfare of the birds on the loads placed in protected holding facilities up to the point of slaughter. [ 87 ] Once trailers are placed in the holding barn, Barn Two, the top tarps are removed and the side tarps are left loose, to facilitate gentle ventilation from bottom to top of the load.

There are exhaust fans in the roof of the barn which operate in cold weather to exhaust hot moist air from the tops of the loads. [ 88 ] Because the sides of the load are covered with tarps, the warmth is said to be retained within the load, and increases as it works its way up and exhausts through the top, to avoid fatal heat, moisture and gas build up [ 89 ] Temperatures of the external surfaces of the crates on the bottom of the load are taken with infra-red thermometers.

These temperatures, together with observations of the conditions of the birds on the load, are supposed to be recorded on load- monitoring sheets, until the time that the trailers are taken to the live-receiving room. In winter, the holding barn shelters trailers from the weather on three sides. It is open to the air on one side. [ 90 ] One object of the Standard Operating Procedures is to ensure that the birds within the holding barn remain within the “comfort zone” temperature for broilers and spent hens.

External crate temperatures are supposed to be recorded for several locations on each load, on an hourly basis. [ 91 ] Of course, the Standard Operating Procedures must be followed in order to avoid a poor result. In addition considerable judgment rests with the Maple Lodge Farms employees assigned to carry out their tasks, such as the driver, dispatch, yard crew, barn monitors etc. [ 92 ] Mr.

Ben Durose testified that the working measure adopted by Maple Lodge Farms, at the time, was that the internal crate’s temperature, where the birds were located, was 3˚ to 4˚ C. above the recorded temperature of the external surface of the lower- bottom crates. [ 93 ] Dr. Ouckama testified on May 18 th , 2012 in addition to other dates.

On that day, at the midday recess, she went to Maple Lodge Farms to “perform a test to determine the difference between the ambient temperature and external crate temperature on loads in the Defendant’s Barn Two, compared with the internal crate temperatures for loads that day” [27] . Dr. Ouckama’s research concludes that even on a load which is not tarped, the internal crate temperature is usually 5˚C. warmer than the external crate temperature. [28] 7.3.

Count 7 – December 30 to 31, 2008: Transportation of Broiler Chickens-Trailer T-07 [ 94 ] On December 30, 2008, a load of broiler chickens were transported via tractor-trailer, owned and controlled by Maple Lodge Farms, from Lakeview Poultry in Clifford, Ontario, to Maple Lodge Farms in Brampton, to be slaughtered. This trailer, identified as T-07, contained a high number of birds found dead on arrival at Maple Lodge Farms. [ 95 ] The trailer was driven by Maple Lodge driver Kevin Donaldson, and carried a total of 9,576 birds.

Upon arriving at the Maple Lodge facility, the load was found, after a Canadian Food Inspection Agency investigation, to have a total of 711 birds dead on arrival, or 7.4% of the total number of birds. 7.3.1 Nature of the Birds [ 96 ] Broiler chickens [29] , male meat birds, in Canada have a very short life cycle. They are bred in the hatchery, and transported in climate controlled vehicles to climate controlled poultry barns as newborn chicks. [ 97 ] These chickens are fed, watered and cared for in poultry barns and are brought to slaughter at around 31 to 33 days old.

They are bred to have an approximate weight which is desired by the ultimate consumer. [ 98 ] The poultry farmer must complete Flock Sheets [30] which are remitted to the slaughter facility several days in advance of the scheduled slaughter, which indicate, inter alia , the condition of the chickens, when food was withheld pre-transportation [31] , whether they had received veterinary care, and what medications if any they had received. 7.3.2 Weather and Temperature [ 99 ] The guidelines of Humane Transportation Practise give a comfort zone for the transportation of both broilers and fowl in a range of between 5 to 30 degrees Celsius, as set out in the industry Codes of Practice. [ 100 ] On the late evening of Dec.30 and the early morning of Dec.31, 2008, the outside air temperature when the Maple Lodge Farms driver left the facility was -5°C with snow.

When he arrived at the farm at 11:15 PM, it was -6°C. When he departed farm at 1:15 AM, the temperature was -7°C.

[ 101 ] A wind chill was in effect. [ 102 ] It was snowing heavily. [ 103 ] When in the holding barn, the top tarp was opened. The temperature was noted as -4°C. in the holding barn. [ 104 ] Crate temperatures were taken at the front of the load [+1.6°], the middle of the load [2.4°], and at the rear [+1.9°]. There is no evidence of crate temperatures after loading and before departure from the farm. [ 105 ] Considerable testimony was provided about the practise of recording external crate temperature.

The defendant submits that the temperatures recorded are not correct because the equipment is faulty, and that ‘everyone knows the internal crate temperature is higher’. [32] The defendant submits that application of the standard deviation used every day at both Maple Lodge Farms and at Dr. Ouckama’s hatcheries determines the most likely internal temperature from the external temperature. [ 106 ] Dr. Ouckama tried to explain this variance based on her knowledge of internal crate temperatures for chicks.

When the Court drew to her attention the fact she had not tested her theory for crates containing adult birds, she went over to the Maple Lodge Farms facility at the lunch break to test her thesis. She concluded that the internal temperature in the crates is about six degrees Celsius higher than the external recorded temperature. I note that this rudimentary “experiment” was not scientific in nature, and was undertaken some nearly four years after the events, in conditions which utterly failed to replicate the circumstances of either date specified in the two counts the Court is considering.

Some basic differences which do not appear to be accounted for by this exercise are: a. the experiment is undertaken on a mild day in May, and both counts here involve very cold winter days; b. the ambient barn temperature is entirely different; c. snow and ice are not on the crates; d. there is no evidence as to whether the birds were similarly stressed at the time; e. there is no evidence as to whether any of the birds were wet; f. there is no evidence as to whether the load contained any large numbers of DOA chickens, whose body temperatures may affect the overall internal temperature mix; and g. the transportation vehicles have changed in the intervening time period. [ 107 ] Given the incomparable experiment with the conditions on Dec.31, 2008, and the complete lack of scientific foundation to this anecdotal “experiment”, the Court is unable to give any weight to Dr.

Ouckama’s opinion as to the internal crate temperatures in the holding barn on the early morning in question. She was not objective or scientific in this instance. [ 108 ] This overreach in her testimony considerably undermined the weight to be given to other of her opinions, and showed a surprizing degree of partisanship as she strayed into the adversarial arena. She was anticipatory of the argument being made and decided to attempt to “plug the hole” in the evidence. [ 109 ] The employee who recorded the temperature of the crates that morning was not called to give evidence.

The court has no information as to how these temperatures were taken or with what instrument, and whether any deviation was taken into account. [ 110 ] The “accepted operating deviation” between the external crate temperature and the internal crate temperature as indicated by Mr. Durose is not corroborated by anyone else in the poultry transportation field from outside the Maple Lodge Farms group of companies. The experts in the Canadian Food Inspection Agency were not asked directly about whether this was an industry practise, and Dr.

Appelt’s evidence supported that more regularized temperature recordings were practised elsewhere in the industry [33] . [ 111 ] Dr. Appelt testified that if there was calculated “standard deviation” of temperature, he would worry because one would be “further removed from an actual accurate measurement, and one would enter an area that relies on statistical

interpretation that can go horribly wrong”. The lack of exactitude or accuracy of temperature, he pointed out, if unknown, cannot determine if the birds are in distress. [ 112 ] The presence of snow and ice inside the load, as well as sufficiently collected on the outside of the trailer to justify redeployment of manpower to remove it, suggests the temperature differential between the outside air and the holding barn was such that some of the snow and ice still remained inside the load. 7.3.3 Pickup and Loading [ 113 ] On December 30, 2008 at approximately 11:15 p.m.

Kevin Donaldson, a driver for Maple Lodge Farms, arrived at Leroy & Wilene Leyen Farms in Clifford, Ontario to pick up a load of 9,576 broiler chickens. At 11:45 p.m. workers started loading broilers on trailer T-07 and continued to do so until about 1:00 o’clock in the morning. None of the crates were left empty. Mr. Donaldson testified that, while loading, it was between -6 and -7 degrees Celsius and snowing moderately and heavily. According to Mr. Donaldson’s observations recorded on the Driver’s Sheet [34] , the broilers appeared to be in good health.

The catchers, tarps, and crates were all good; there was no reason to believe that any of the broilers or equipment was unfit for transport to Maple Lodge Farms. The broilers came from a healthy flock and good production environment at Leroy & Wilene Leyen Farms. There were no diseases or treatments reported during the grow-out period.

The defence submits that there was no indication this load of broilers would suffer, in transport, due to internal factors or anything that occurred prior to, or during, the loading process. [ 114 ] The driver Kevin Donaldson was trained in proper transport procedures and experienced. He gathered his paperwork for

the load, including a map, weigh ticket and detailed instructions for loading, and left the Maple Lodge Farms plant at about 9:30 p.m., on December 30 th , 2008, after checking the crates and equipment. The driver sheet [35] sets out the temperature, flock condition, weather conditions and standard and specific loading instructions, and other comments of Mr. Donaldson. [36] The loading process was undertaken from 11:45 p.m. until 1:00 a.m., for 9,570 birds in 684 crates. The loading was completed by two loaders. Mr.

Donaldson loaded the bottom half of the load, and one of the members of the catching crew loaded the top half. The temperature was moderately cold at -6˚ C, and it was snowing heavily. The loading was achieved very quickly. The passenger side tarp remained closed. The truck was protected from wind by the barn on the driver’s side. The top tarp was unfurled as the load progressed, to protect the cockerels being loaded from snow. The temperature on the load rose as the loading took place, since Mr.

Donaldson was wearing only coveralls, and he was sweating as he worked. [ 115 ] Mr Donaldson said that he loaded the trailer in his coveralls and that he was not cold when loading the birds. It is said by the defence that this indicated conditions outside were not so unfavourable for the chickens. Mr. Donaldson testified about the events of that day without benefit of notes, except for the driver sheet, several years after the event. He could not even recall what exactly he told the Canadian Food Inspection Agency inspector five days later.

I cannot rely on his recollection of his attire when loading T-07 that morning after hundreds of intervening pick-ups. [ 116 ] Even if he was correct that he himself was sufficiently warm while in motion stacking crates and loading, the differential between the human body and its mechanisms to maintain internal temperature and that of one month old broilers to do the same is not comparable; nor can an adult clothed male performing strenuous work be compared with feathered stationary birds. [ 117 ] Mr. Donaldson testified that a crate was filled every seven seconds on average while loading.

As soon as the crate was filled, an empty one was placed on top. He did not believe that any crates on the load, including those on the top, were exposed to weather for more than five minutes before being covered, so that the birds were not wet from melting snow [37] . Some snow accumulated in the empty crates in the rear part of the load, which he knocked out before filling the crates with birds. The equipment was in good condition. Birds were placed upright within the crates. No concerns were noted when the load left the farm. Dr.

Ouckama testified that leaving the top row empty to protect the birds would have been less effective than pulling the tarps, but she did not indicate a cogent reason why both tarping and empty crate placement could not have been done. [ 118 ] The defence submitted that it is obvious, from Mr. Donaldson’s testimony, and the review by Dr. Ouckama, that all of the good loading practices, contained in the Standard Operating Procedures, were followed in loading T-07, as well as the instructions to protect the birds with tarps as loading progressed. Mr.

Donaldson did not indicate that the birds were wet on the lower portion of the driver sheet, in the “bird condition” area. He noted the bird condition to be “good.” The catching crew performed well. Conditions were not unusual enough for him to call dispatch for further instructions.

He stated that he pulled the tarps as tight as he could, to protect the load, and left the farm as quickly as he could, to prevent heat build- up in the load, at 1:15 a.m., on December 31 st , after securing the load and tarps [38] . [ 119 ] The physical layout of the barn and the placement of the trailer however, with blowing snow did not manage to prevent the top crates from getting snow on them. I find that a number of birds were wet at the top of the trailer before the load left Clifford.

It is also highly likely that other blowing snow would cumulate through the open side tarp while the loading was taking place. Highway driving and air circulation from the bottom layer of packed crates would tend to exacerbate the chill to the broilers who were wet. [ 120 ] Mr. Santos Pachai, an inspector with the Canadian Food Inspection Agency spoke to the driver Mr. Donaldson about the loading process on Jan.5, 2009. Mr. Donaldson told Inspector Pachai that a number of the broilers on top of the trailer were wet from blowing snow during the loading process.

Because T-07 was the first truck loaded from Leroy & Wilene Leyen Farms, the outside rows of the crates were not left empty to use as a barrier to protect the load. [ 121 ] If there were problems at the farm, or on loading, dispatch was to be notified at Maple Lodge Farms. The dispatch book for the night of Dec.30-31, 2008 is “missing”. The dispatcher Mr. Zancai did not recall if anyone contacted him about the T-07 load. 7.3.4 Transport to Maple Lodge Farms [ 122 ] The driver proceeded immediately, after securing the load, weighing in at Maple Lodge Farms at 3:36 a.m.

The trip was thus two hours and 21 minutes long. There were no stops en route. The roads were snowy, at the beginning of the trip, but cleared after Mr. Donaldson left Arthur, Ontario. [ 123 ] Mr. Donaldson left for Maple Lodge Farms around 1:15 a.m. with the full load of broiler chickens. It was minus 7 degrees Celsius and snowing when he left. Dr. Martin Appelt, testified that unlike wild chickens, there is no adaptation period for broilers. There are certain risks involved in the sudden transition from the controlled environment inside the barn to the exposed trailer, which places stress on the broilers.

To minimize this stress, especially in cold weather, the desired condition is that the broilers are shipped dry. Once the feathers are wet, the ability to regulate body temperature is greatly reduced. In addition, if the humane transport of chickens is the goal of Maple Lodge Farms, the birds are required to be kept in the proper comfort range of temperature as advocated by the industry Codes of Practice.

As the Crown submitted, it is significant, therefore, that the temperature of load T-07 while en route to Maple Lodge Farms was apparently well below that temperature range. [ 124 ] While the vehicles then used by Maple Lodge Farms at the time did not have thermometers or equipment capable of measuring the temperature of the load installed while en route, as do those of some third party transporters, it is possible to obtain a rough estimate. Dr. Appelt testified that, as a general rule, the temperature in a stationary vehicle will be higher than one that is moving.

The movement of the truck on the highway causes cold air and wind to enter the vehicle. The Load Condition Report for T-07, completed after it arrived at Maple Lodge Farms at approximately 4:00 a.m., indicates the load temperature ranged from 1.6 to 2.4 degrees Celsius. Accordingly, given that the load temperatures on a standing trailer were already below the minimum comfort level, there is a strong inference that the temperature at which the broilers were subjected to during transport was considerably further below the comfort zone.

[ 125 ] The defendant outlines fully in his written submissions [39] the technology employed by the defendant for both loads, available at the time for haulage. This consisted of flat-bed trailers using Ralide crates and tarps. [ 126 ] The technology relies upon passive ventilation to move essential air through loads of chickens, protected by tarps. Air enters the lower-rear portion of the load, passes and circulates through the load, and exhausts at the front top portion of the flatbed trailer. [40] [ 127 ] The posited available alternative technologies by Dr.

Appelt have not all been adapted to Canadian climatic conditions, but are being used in a number of locations. [ 128 ] A prototype is being studied in Manitoba and Saskatchewan for a closed, mechanically ventilated vehicle, but it is not yet sold in Canada. [ 129 ] The defendant claims that the existing technology works very well in most climatic conditions, but in cold winter conditions, the margin of safety for the birds on the load is narrowed considerably. [ 130 ] As Mr.

Folkes points out, the driver or person responsible for the load must carefully balance the need for the birds to be protected from the elements external to the load by tarps, against the need for passive ventilation of air through the load to exhaust heat, moisture and gases produced by the chickens, so that they do not get overheated. [ 131 ] Although “dolly” or “module” units are used for other types of chickens instead of individual Ralide crates, they are still loaded onto flatbed trailers and protected with tarps. The system for passive ventilation of the load is the same. Although Mr.

Finnimore from Maple Lodge Farms insisted the success rate with these other technologies is not better than for loads protected by tarps, Maple Lodge Farms has moved to the dolly units at the present time, and it certainly appears to improve loading time, and therefore would tend to subject the chickens to less exposure to cold. [ 132 ] The defendant also relies upon the statistics that a vast majority of loads hauled under this technology in all seasons by Maple Lodge Farms have been hauled successfully. [41] [ 133 ] Dr.

Doonan, a veterinarian called by the Crown highlighted the narrowness of the margin of safety for transportation of chickens using the existing technology. He also stated: It is probably impossible to be in compliance with the Regulations consistently throughout the year on all of the loads because the system that is being used is totally inadequate. [ 134 ] A

summary of the expert evidence on this issue of haulage technology is helpfully set out in the defendant submissions by Mr. Folkes, as follows: There is much common ground among the expert witnesses, with respect to a number of features of the above technology. Dr. Martin Appelt and Dr. Gordon Doonan, called on behalf of the Crown, cited industry guidelines in the Code of Practice for Handling and Transportation of Live Poultry,

Section 5, which both Dr. Ouckama and Dr. Doonan had a role in developing. Both Dr. Appelt and Dr. Doonan agreed with many features in the testimony and report, dated July 25 th , 2011 (Exhibit 7), of Dr. Rachel Ouckama, dealing with this haulage technology,, which include: a. Internal load temperatures for loads of broiler chickens being hauled should be within +5˚C. to +30˚C., as a guideline; b. Internal load temperatures for loads of fowl should be within +13˚C. to +30˚C. because of the poor feather cover of fowl, as a guideline; c.

Research has shown that elevations in mortality on high DOA loads of chicken, above acceptable values, which are the result of thermal stresses, in combination with high humidity levels, and are concentrated in pockets, in specific locations within the load; d. Birds should be loaded in dry condition, to avoid compromising the insulation value of whatever feather cover they may have; e.

Chickens can be exposed to extremes of either hot or cold, on the same load, which is fully tarped, depending upon their location within the trailer, because of uneven distribution of heat and humidity inside the transport trailer. Even in extremely cold weather, when a load is fully tarped, the birds generate heat and moisture so that there is a sharp and material rise of heat and moisture within the enclosed load; f.

In inclement winter weather, snow and ice will enter a fully-tarped vehicle at the rear air intake areas, at the bottom of the tarp, to allow necessary air to enter the transport vehicle, to avoid suffocation and build-up of heat and gases. Road spray, salt, or snow enters at the same location from the atmosphere or from the road over which the load is being hauled. This is unavoidable, based upon the design of the present vehicles, protected with tarps; g. In cold weather, condensation can occur along the top and inner sides of the cold tarps covering a fully-tarped load because of restricted ventilation.

This condensation leads to wetting of birds along the side and bottom of the load, with increased risk of hypothermia or chilling of the birds in these areas; h. In cold weather, on flat-bed trucks, fully protected with tarps, research indicates that as much as 50% of the load can be exposed to an environment within the load, which is incompatible with the life of the birds; i. It is necessary that processors transport loads of birds for slaughter in all weather and in all seasons in Ontario and other

provinces. Birds are transported in temperatures of -30˚C or below in Western Canada using this technology, with a high success rate. j. There is some unavoidable degree of suffering when broilers are taken from a climate-controlled barn environment, in which they are raised, and then loaded on to a truck in cold weather for the first time; k. Similarly, there is an unavoidable degree of suffering when fowl or spent hens are taken from their climate-controlled laying barn, in which they have spent 52 weeks, to be loaded on to a truck in cold weather; l.

The removal of fowl from cages, through a narrow opening, to be carried from 400 to 600 feet in a cage barn for loading is very stressful for these chickens m. Over protection of the birds by tarping too tightly creates its own set of problems, in the form of extremes of heat and moisture build up within the load, which can cause mortality; n. There is a heavy responsibility on the driver to balance the need for protection of the load with tarping, against the need for ventilation in cold weather.

There is still significant risk that one or two factors may be inadvertently overlooked, which can expose a load of birds to fatal hypothermia (over chilling) or hyperthermia (over heating) at random; o. Once a truck is loaded, it must keep moving to its destination, unless there are very exceptional circumstances, such as a breakdown or road accident; p. Concentration of pockets of DOA’s in certain areas within the loads indicates that death was likely due to an environmental cause; q.

There was no other commercially-available technology for Maple Lodge Farms to haul live chickens, other than the flat-bed, crate and tarp technology, at the relevant time; r. The ralide crates are perforated to allow for air flow and washing and there are 2 inch spacers between rows of crates on the load to facilitate ventilation and avoid “hot spots” within the load; s. Loads must be tarped in cold weather to prevent a jet stream of cold air from entering the trailer, which would over-chill the birds on the load, and to protect the load from rain and snow, at least partially; t.

The Maple Lodge Farms trailers in use at the time had tarps which unfurled to cover the top of the load, from a basket covering the first row of crates. Side tarps were hung like curtains and moved back on rails to cover the load as required. The front and back of the trailers are protected by solid front boards and back boards with adjustable vents. [ 135 ] It is obvious that the existing technology for transporting live chickens has many shortcomings. Both counsel readily agree.

The defendant submits that previous practise and procedures in place [42] would assure Maple Lodge Farms that it was highly unlikely that these loads would suffer from high DOAs. [ 136 ] The Crown submits that the defendant cannot entirely rest its assessment of foreseeability on the Ouckama report and past experience. In an individual haulage, different circumstances present which the defendant and its agent must assess in determining if it is likely that this load would be adversely affected by exposure to weather.

All experts agreed that wet chickens should not be transported. [ 137 ] The defendant also argues that it employed the haulage equipment used in the industry, and that no ‘better’ system was available. [43] 7.3.5 Arrival and Inspection at Maple Lodge Farms [ 138 ] When a trailer arrives at Maple Lodge Farms it goes to the weigh station to determine the average weight of the birds. Mr. Donaldson, the driver did so in this case. This is a standard procedure that determines the value of each load.

Under the supply management system, which regulates the constant flow of product relative to the demand for poultry, chickens are expected to fall within a certain range of weight specifications. There are monetary penalties for delays in transporting the birds and for exceeding the live weight targets. Accordingly, the defendant submits that it is critical for the chicken industry, as well as Maple Lodge Farms, to comply with the supply management system. Bernard Durose, the live haul quality control manager at Maple Lodge Farms at the time, testified that he recalled the events of that New Year’s Eve.

They were short staffed. “There was snow and on arrival. All hands go to removing snow from the trailer. So it can be weighed. And that is done so we’re not buying snow and water so that is a top priority as we can pick up, up to 1000 or 2000 kilos of snow underneath the trailer.” [ 139 ] He agreed that monitoring the loads in the Maple Lodge Farms barn so that they can detect problems with the birds as soon as they occur is an important health and welfare issue. The defendant’s employee in the barn that evening was “Luis”. He reported to Josie Cavalho, the yard foreman who, in turn, reported to Mr.

Durose who was on duty that evening. [ 140 ] The trailers must be monitored on an hourly basis. This involves noting both the temperature within the barn and the temperature of the load at the front, middle and rear of the trailer. He explained that the defendant strictly adhered to the Industry’s Code of Practice which recommends that the temperature of the load not go below 5 degrees Celsius. He conceded that the temperatures within trailer T-07 was well below the recommended temperature (1.6, 2.4 and 1.9 degrees Celsius). The temperature within the barn was – 4

degrees Celsius. Not only were there no noted adjustments to the conditions of that load there was no further monitoring of that load until it was processed almost 5 hours later. Processing of that load commenced at 8:51 am. [ 141 ] He agreed that in general, staff at the barn should never be diverted to tend to the apparently more important job of clearing snow and ice from the trailer which might add weight to the load and result in fines for exceeding the targets. However, Mr.

Durose later testified that because it was New Years’ Eve and they were short staffed, it was the staff member responsible for monitoring the load in the barn that went to assist with cleaning snow off the trailers. He testified that it is crucial that regular monitoring take place, yet in this case, it did not take place. He omitted this fact from the Live Transportation Investigation Report which he signed. [ 142 ] After the birds are weighed they proceed to the barn where they are held until it is time for slaughter.

While in the barn, an employee was supposed to monitor the load of chickens and complete a load condition report on an hourly basis. Shortly after arriving Mr. Donaldson removed the top tarp and the side tarps were loosened. He described the load as “steaming”. He inspected the trailer in holding Barn Number One, and did not see sufficient DOAs to warrant bringing the condition of the load to the attention of Mr. Durose and dispatch. Mr.

Donaldson testified that he would need to observe about five to ten dead birds before alerting dispatch. [ 143 ] The driver then backed the trailer into Holding Barn Number Two about 4:00 am. .

Notwithstanding his evidence, shortly thereafter, at about 4:00 am the employee who was charged with monitoring the load recorded observing more than 20 dead birds [44] in trailer T-07. “Luis” was not called to give evidence even though he still works at Maple Lodge Farms. [ 144 ] The Crown submits that the load condition report, which is used to monitor the welfare of the birds while waiting in the barn, contains a number of significant facts with respect to the humane transport and welfare of load T-07. First, there is only one entry around 4:00 a.m.

Trailers in the barn are supposed to be inspected every hour to ensure the birds were not in distress and that they were kept in appropriate conditions before being sent to slaughter. There were no other entries recorded on the load condition report as required. Mr. Frost argues that in an apparent reaction to Mr. Durose’s testimony, Maple Lodge Farms called an additional witness to explain that the lack of supervision and reporting was because one of the workers had called in sick that day and, for whatever reason, the barn was not monitored after 4:00 a.m.

There is no doubt that someone should have monitored trailer T-07 again at 5:00 a.m. and 6:00 a.m. Trailer T-07 was not processed until 8:51 am. [ 145 ] Mr Folkes submits that three years after the event, Ben Durose speculated that the monitoring person was most likely called away to scrape snow and ice off of the trailers. He says that this is “not supported” by the evidence of Richard Zancai, the dispatcher at the time, and of John Melo, a long time Maple Lodge yard employee. They both state that the load monitors are never transferred to scraping snow and ice off of trailers.

Trailer cleaning is handled by the yard crew. Best practises do suggest otherwise; however, in this case Mr. Durose was supervising that night and his recall is consistent with the lack of monitoring after 4:00 am. He was responsible that night to deploy people, and he authored the company investigative report less than three weeks after the event, and failed to mention this lack of monitoring. He also did not indicate the plant was short-handed. I find he did pull the barn monitor off duties to help with this “top priority” yard function, as he recalled. [ 146 ] Although Mr.

Finnimore, the current live haul supervisor at Maple Lodge Farms, testified that if snow and ice is allowed to remain on the trailer, the average per head weight of the birds on the trailer is artificially increased, which could mean that the electronic stunning system, which is used in the humane slaughter process, will be mis-adjusted to a painful level for the birds, since its strength is adjusted in accordance with average bird weight; his testimony is based in hindsight, and does not reflect the only reason provided by the Maple Lodge Farms supervisor who was there that night. [ 147 ] Moreover, the Crown submits that the load condition and live receiving reports are significant because 711 birds, or 7.4% of T-07, which were loaded alive and in good condition at Leroy & Wilene Leyen Farms were found dead on arrival.

The birds had no obvious signs of disease or other conditions that would explain why such a high number of chickens left one farm alive and ended up dead on arrival. The fact that the 711 dead birds were found mostly on the top and sides of the trailer strongly supports the inference that environmental stresses killed the birds, rather than a pre-existing condition or disease. If that were the case, the distribution of DOAs would be random, rather than focused along points where the birds are more exposed to cold weather.

The catchers had made a point of noting that the birds were dry when caught. [ 148 ] The next mention of the load is when Dr. Gomulka did a brief ante-mortem inspection, looking for unusual abnormalities of the birds, at about 9:01 a.m., when the trailer was in the live-receiving bay area. Dr. Gomulka did not note any comments for this trailer on the Maple Lodge Farms “Flocks to be Killed” sheet, as he had done for other loads in obvious distress. He did not make written note of any DOA’s or excess wetness of the birds in this inspection.

He did initial the “Kill Sheet” at 9:01 am. [ 149 ] When the trailer was being unloaded, from front to back, high numbers of DOA’s were noted, and Canadian Food Inspection Agency was alerted. Inspector Pachai arrived to inspect the load in the receiving bay, which serviced the line for broilers. He made notes of his observations [45] . He took some photographs, and ordered a sample of 10 birds from the load gathered from the floor, contrary to protocol, and placed into a tagged plastic bag for a necropsy sample.

Inspector Pachai started his observations at 9:05 a.m., when the front half of the trailer had already been unloaded. He saw only the rear crates. The driver’s side tarp was closed, and there was snow on the outside rear of the trailer. He noted the birds’ tails were going up and down, which he interpreted as a sign of insufficient ventilation. He noted dead birds in some outer-driver’s side crates and in one top outer crate. There was snow and ice in the bottom outside crates, where the chickens appeared wet. No dead birds were reported in these snowy crates.

The defence notes that it is significant that the inspector noted that most of the chickens were dry. He was told that the DOA’s started “right away” for this, and the sister Trailer T-11, by the foreman. This indicates a clustering of dead birds at the front and top of the load, consistent with hyperthermia. [ 150 ] On cross-examination, Inspector Pachai admitted that the 10 birds taken for the necropsy sample had been gathered from the floor in the confined area where the crates are unloaded and birds are hung on shackles.

The sample birds had not been taken from any identified crates or areas on the load to correlate with his load observations. Dr. Appelt admitted that the inspector’s notes required “interpretation.” He termed the diagram on the Live-Receiving Trailer Report as hastily sketched and unreliable to show the exact location of the DOA’s.

[ 151 ] Once trailer T-07 was flagged at live receiving for having a significant amount of DOAs, Mr. Pachai, an Inspector for CFIA, conducted an inspection of the load. Mr. Pachai made several findings that the Crown urges that strongly support the inference that the cause of mortality among the birds was exposure to the cold and wet weather – especially wet birds. There were crates within the trailer with snow and ice in them, an

[…]