R. v. Maple Lodge Farms Ltd., 2013 ONCJ 535

R. v. Maple Lodge Farms Ltd.

Court File and Parties

Court File No.: Brampton 10-1160

Date: September 27, 2013

Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

Maple Lodge Farms Ltd.

Before: Justice N.S. Kastner

Heard on: September 9, 12, 13, October 6, November 28, 2011; and January 5, 9, 30, February 13, May 8, 18, August 9, October 10, 2012; January 29, and June 28, 2013

Written submissions by the Crown: December 2012

Written submissions by the Defendant: January 18, 2013

Additional Oral Submissions: January 29, 2013

Reasons for Judgment released: September 27, 2013

Counsel:

• Damien Frost, for the Crown
• Ron E. Folkes, for the defendant Maple Lodge Farms

KASTNER J.:

Introduction

1Many 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."

2The Health of Animals Act 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

3This case involves both factual and credibility findings, and the application of the law pursuant to the Health of Animals Act and its regulations 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

4Maple 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.

5Maple 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.

6The 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.

7The 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 30th and 31st 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.

Count 34:

That MAPLE LODGE FARMS LTD., Ontario Corporation 92480, 8301 Winston Churchill Blvd., Brampton, Ontario, on or about the 23rd 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.

8The Crown proceeded summarily and the litigants then chose to have a trial before a Judge of the Ontario Court of Justice.

9The 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.

10Both counsel for the Public Prosecution Service of Canada and counsel for Maple Lodge Farms made extensive written submissions at the conclusion of the evidentiary hearing, and then made some additional oral submissions in late January.

11The 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. The case has been a model of excellent advocacy on both sides.

2. Legal Overview

12The 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.

13The 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.

14The 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.

15The 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;

16Section 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.

3. Strict Liability Offences

17Offences 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.

18Public welfare offences are generally presumptively strict liability offences.

19The 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.

20A breach of Section 65 of the Health of Animals Act, when prosecuted as offences rather than AMPs, is a strict liability offence with an available defence of due diligence, as per R. v. Sault Ste. Marie:

Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability.

21The burden rests upon the Crown to prove the defendant committed the alleged prohibited acts, or actus reus, beyond a reasonable doubt.

22The Crown need not prove mens rea. Once the Crown has proven that the defendant committed the prohibited act, the offence has been prima facie established.

23Mistake of fact is not at issue in this case if the Crown proves the defendant committed the prohibited acts.

24The defendant company can escape liability if they establish, on a balance of probabilities, that they exercised all due diligence to prevent the prohibited acts from occurring.

25The 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 prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability." (emphasis added)

And regarding the burden of proof:

"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 care has been taken. This burden falls upon the defendant as he is the only one who will generally have the means of proof. This would not seem unfair as the alternative is absolute liability which denies an accused any defence whatsoever. While the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act, the defendant must only establish on the balance of probabilities that he has a defence of reasonable care." (emphasis added)

4. Position of the Parties

26The Crown asserts that they have proven the actus reus of both of the offences beyond a reasonable doubt, and that Maple Lodge Farms has failed to establish on a balance of probabilities that they exercised all due diligence to prevent the breach of the regulation in question.

27It is the Crown's position that the defendant was solely responsible for the transportation of both loads of chicken in question in these two counts, in excess of 20,000 chickens, and that almost ten percent of those chickens, or 1,892 birds did not survive the relatively short trip to Maple Lodge Farms. The death of those birds would be accompanied by undue suffering.

28The Crown further submits that the remaining live birds also suffered unduly due to conditions that unduly exposed them to inclement winter weather conditions.

29Maple Lodge Farms submits that the Crown has failed to establish the actus reus of the offences to the requisite degree of proof. The defendant submits that the Crown has not proven beyond a reasonable doubt with respect to either count that it transported chickens where injury or undue suffering was likely to be caused by reason of undue exposure to weather.

30In 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 high mortality of the two loads of chicken; (b) the probable reasons why loads of chickens suffered high levels of mortality; and (c) that it took 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.

31The Crown argues that the defendant has failed to show due diligence with regard to either load. Regarding the broiler load, the Crown submits it has proven actual neglect in relation to the transportation of these birds because (a) they failed to comply with their own Standard Operating Procedures; (b) they failed to comply with the industry standards set out in the Canadian Agri-Food Research Council's Recommended Codes of Practise; (c) they failed to monitor the load on an hourly basis, and; (d) there is an inference of a mentality of profits ahead of animal welfare.

32Regarding the load of spent hens, the Crown submits there is no evidence that any reasonable steps were taken in relation to their transport, and certainly no evidence that all reasonable steps were taken to prevent undue suffering and undue exposure to weather. 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

33It is alleged that Maple Lodge Farms contravened the Regulation averred by transporting both the broiler chickens on New 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 by reason of undue exposure to the weather. Thus, it is alleged that the defendant contravened Section 65 of the Health of Animals Act.

34The Crown must prove these essential elements beyond a reasonable doubt. Each count and factual circumstances should be separately weighed and adjudicated, as the result for any one of the counts does not necessarily determine the decision on the other count.

35There are however many similar circumstances or considerations which may bare relevance to both counts on both the issue of alleged infringement, and the issue of due diligence.

6. Expert Opinion: The Principles

36Opinion evidence is generally not admissible. One exception is expert evidence.

37The Supreme Court of Canada set out the 4 criteria or pre-conditions for admissibility of this evidence in the decision of R. v. Mohan 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 a properly qualified expert.

38If the evidence meets this threshold four-part test, the Court moves on to the second stage of the admissibility analysis which involves balancing the probative value of the expert evidence against its prejudicial effect.

39A trial judge must determine the nature and scope of the proposed expert evidence. As stressed by Justice Doherty in R. v. Abbey at para. 62:

The admissibility inquiry is not conducted in a vacuum. Before deciding admissibility, a trial judge must determine the nature and scope of the proposed expert evidence. In doing so, the trial judge sets not only the boundaries of the proposed expert evidence but also, if necessary, the language in which the expert's opinion may be proffered so as to minimize any potential harm to the trial process.

40His Lordship indicates that a "cautious delineation of the scope of the proposed expert evidence and strict adherence to those boundaries, if the evidence is admitted, are essential".

Justice Doherty outlines the reasons for such a delineation in Abbey:

A determination of the scope of the proposed expert opinion evidence and the manner in which it may be presented to the jury if admissible will be made after a voir dire. The procedures to be followed on that voir dire are for the trial judge to decide. Sometimes the expert must be examined and cross-examined on the voir dire to ensure that the proposed evidence is properly understood. At the conclusion of the voir dire, the trial judge must identify with exactitude the scope of the proposed opinion that may be admissible. He or she 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 (CanLII), 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 judge may admit part of the proffered testimony, modify the nature or scope of the proposed opinion, or edit the language used to frame that opinion: see, for example, R. v. Wilson (2002), 2002 CanLII 49653 (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 expert is one of the valuable lessons learned from the Inquiry into Pediatric Forensic Pathology in Ontario. That inquiry examined the forensic work 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 were sometimes not caught by the court or counsel and, along with other shortcomings, led to several miscarriages of justice. Goudge J.A., the Commissioner, stressed the trial judge's obligation to take an active role in framing the scope and the language of the proposed expert opinion 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 to give. As discussed in the earlier part of this chapter, it will be beneficial to define the range of expertise with as much precision as possible so that all the parties and the witness are alerted to areas where the witness has not been qualified to give evidence. ... As I earlier 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 the requirement of threshold reliability. [Emphasis added.]

41Both parties properly concede the expertise of each of the expert veterinary witnesses in their respective field, but reserved considerable argument on the weight to be given to each of their opinions.

42Professor Adam Dodek provides a very helpful summary of the purpose of expert witnesses in the scientific field and their 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."

Moreover, many experts themselves misunderstand their role. 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.

43The 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.

44To 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.

45The Court bears all those principles in mind in assessing the evidence proffered by the expert witnesses in this case.

6.1 The Experts

46A number of witnesses called in this trial fall under the category of expert witnesses, permitted to give opinion evidence in their scientific field.

47Both 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".

48I will briefly outline their qualifications and roles:

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.

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. 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.

49There was considerable common ground between the expert witnesses in some areas. All are veterinarians by training.

50Dr. 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.

51These reasons will deal in depth with their evidence.

6.2. Weight of Opinion Evidence

52Although 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.

53Mr. Frost submits that Dr. Ouckama is far more of an advocate than a detached or neutral witness, and provided several examples.

54He 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.

55Dr. 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.

56Dr. 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.

57She 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.

58The 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.

59Any 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.

60This 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.

61Dr. 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.

62Some 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.

63She came across as partisan and nonsensical at times. The overreach referred to in her evidence in areas such as crate temperatures tainted some of her other opinions.

64Where 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.

65While 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.

66Dr. 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.

67I 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.

68Dr. 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.

69If 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.

70It 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.

71I 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.

72In 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

73Some 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

74I 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.

75Some 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.

76Male broilers are also transported as chicks in climate controlled vehicles to awaiting farms. They are fed specially designed feed 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.

77The 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.

78The 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.

79The 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.

80The 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

81At 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.

82The 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. 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.

83Haulage 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.

84The 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.

85The 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.

86In 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.

87Once 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.

88Because 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.

89Temperatures 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.

90One 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.

91Of 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.

92Mr. 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.

93Dr. Ouckama testified on May 18th, 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". 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.

7.3. Count 7 – December 30 to 31, 2008: Transportation of Broiler Chickens-Trailer T-07

94On 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.

95The 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

96Broiler chickens, 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.

97These 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.

98The poultry farmer must complete Flock Sheets 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, whether they had received veterinary care, and what medications if any they had received.

7.3.2 Weather and Temperature

99The 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.

100On 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.

101A wind chill was in effect.

102It was snowing heavily.

103When in the holding barn, the top tarp was opened. The temperature was noted as -4°C. in the holding barn.

104Crate 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.

105Considerable 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'. 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.

106Dr. 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.

107Given 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.

108This 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.

109The 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.

110The "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.

111Dr. 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.

112The 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

113On 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, 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.

114The 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 30th, 2008, after checking the crates and equipment. The driver sheet sets out the temperature, flock condition, weather conditions and standard and specific loading instructions, and other comments of Mr. Donaldson. 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.

115Mr 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.

116Even 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.

117Mr. 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. 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.

118The 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 31st, after securing the load and tarps.

119The 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.

120Mr. 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.

121If 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

122The 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.

123Mr. 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.

124While 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.

125The defendant outlines fully in his written submissions 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.

126The 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.

127The 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.

128A prototype is being studied in Manitoba and Saskatchewan for a closed, mechanically ventilated vehicle, but it is not yet sold in Canada.

129The 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.

130As 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.

131Although "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.

132The 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.

133Dr. 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.

134A 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 25th, 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.

135It 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 would assure Maple Lodge Farms that it was highly unlikely that these loads would suffer from high DOAs.

136The 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.

137The defendant also argues that it employed the haulage equipment used in the industry, and that no 'better' system was available.

7.3.5 Arrival and Inspection at Maple Lodge Farms

138When 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."

139He 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.

140The 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.

141He 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.

142After 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.

143The 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 in trailer T-07. "Luis" was not called to give evidence even though he still works at Maple Lodge Farms.

144The 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.

145Mr 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.

146Although 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.

147Moreover, 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.

148The 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.

149When 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. 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.

150On 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.

151Once 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, and some of the birds were wet. Mr. Pachai took pictures of the condition of the load and its chickens. Mr. Pachai testified that it was unusual to see this combination of snow and wetness on the bottom crates because the tarp usually protects them. While most of the chickens appeared dry, and some were, in fact, soiled, Mr. Pachai's testimony was that birds on the bottom were wet from snow and ice.

152The Court accepts the accuracy and reliability of Inspector Pachai's observations ante-mortem. He made notes and recorded his observations pictorially as well.

153Dr. Appelt explained the significance of these findings by Mr. Pachai. The presence of ice inside the bottom crates is conclusive proof that the loads were exposed to temperatures around the freezing point or lower for a significant amount of time; otherwise, ice would no longer be present. The fact that the birds appeared wet means that, in addition to being exposed to temperatures incompatible with life, they were unable to maintain the necessary body temperature to survive. Wet birds cannot use their feathers to create air pockets to insulate against the cold.

154The defendant contends that the failure to monitor T-07 did not cause or contribute to the undue suffering of the birds on the trailer.

155Mr. Folkes also submits that there were no obvious warning signs ignored by the defendant, which would have called for special preventative measures to be taken to have avoided the high DOA count on these loads. This is a difficult argument to make in light of the failure to monitor the birds in the holding facility.

7.3.6 Necropsy and Expert Evidence of Causation

a. Canadian Food Inspection Agency Threshold Range for DOAs

156The Canadian Food Inspection Agency sets out a threshold range of mortality at which the Canadian Food Inspection Agency triggers an investigation of the load for purpose of animal welfare or infectious diseases.

157At the relevant time, those thresholds were 2% DOAs for broiler chickens and 4% DOAs for fowl or spent hens on each load.

158The percentage of DOAs in the load in count 7 was 7.4%.

b. Evidence of Dr. Gomulka

159Dr. Andrew Gomulka performed a necropsy on a sample of ten (10) birds from trailer T-07 due to the high number of DOAs.

160Dr. Gomulka photographed the dead birds that he examined.

161He found that the location of the dead birds was significant because if they were diseased, or died from other causes, they would be distributed randomly throughout the trailer.

162Dr. Gomulka noted the dead birds were cold to the touch and in good bodily condition. Some of the birds were poorly feathered, which may well have impaired their ability to deal with cold weather conditions because they lose body heat at a faster rate.

163He testified that the birds had wet feathers when inspected. This meant regulating body temperature was even more difficult because there is heat loss at an accelerated rate.

164Dr. Gomulka's final opinion was that he could not see anything other than inadequate protection from adverse weather conditions that could have been the cause of death.

165The defendant challenged Dr. Gomulka's opinion on a number of fronts:

i. The treatment of the sample birds on the slaughter floor;

ii. The location in the trailer where the sample birds were taken is not specified;

iii. The nature of the necropsy performed;

iv. The inference of death by disease; and

v. The inference of death by other infectious causes

166Counsel for the defendant submits that 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 and he ordered a sample of 10 birds from the load gathered from the floor, contrary to protocol, and placed them into a tagged plastic bag for a necropsy sample.

167In 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.

168The Court has heard from Inspector Pachai however, and he does not simply rely on his brief notes as the experts did. He does not impress as such an "Inspector Clouseau" as Mr. Folkes made him out to be. He had a role and he performed it. His observations are consistent with the monitoring note at 4:00 am, the prevailing conditions on loading, and the condition of the trailer and crates still remaining on the trailer at the time of inspection. His evidence is supported and corroborated by photographs taken in situ before those crates were unloaded.

169The defence points out that other witness have given some insight into conditions in the live-receiving area when the observations were made by Inspector Pachai, and the samples gathered. The area was very confined. He posits that a pile of more than 700 birds would create chaos in this small area, which was wet, being washed down and sanitized for the next load in line. Crates were emptied every 3.5 seconds, on average, at the processing of 257 birds per minute. It is the Defendant's position that the 10 sample birds were likely compromised by wetting, after being removed from T-07, and placed on the wet floor before being collected into the plastic bag.

170This theory, while interesting, fails to recognize the photographs taken by Inspector Pachai while the birds recorded were still in the Ralide crates. They depict soaking wet birds that had not yet been unloaded or exposed to the conditions in the live receiving area.

171I note that no Maple Lodge Farms employees that worked on the production line that day, whether supervisory or not, were called to give evidence. No cleaning crew testified. While the Court recognizes that the burden of proof does not shift to the defendant in this portion of the case, there is no affirmative evidence of wetting these samples on the floor.

172Section 44 of the Health of Animals Act specifies that "Except as authorized in writing by an inspector or officer, no person shall remove, alter or interfere in any way with an animal or thing seized and detained under [this] Act". Any birds that Inspector Pachai tagged and labelled as samples for necropsy could not be interfered with in any way without violating the statute. Although it is speculated that the cleaning crew soaked these sample birds, in the absence of evidence to substantiate that, it is reasonable to infer the Maple Lodge Farms employees did not interfere with the seized samples to comply with the law.

173Dr. Gomulka prepared a necropsy report, based on the 10 bird samples from the pile of dead birds taken from Trailer T-07. It appears that Dr. Gomulka also did the post-mortem inspection of the eviscerated carcasses from this load, since he signed the condemnation certificate (Ex.1P). This is important, since Dr. Gomulka testified that there were no indications of frostbitten or frozen birds, or dark, firm breast meat on the eviscerated carcasses from T-07, which would clearly indicate frostbite or exposure to cold. I note parenthetically here that the Crown does not have to prove birds were actually frozen if they are able to prove that the exposure to the weather was the cause or contributing cause to their deaths, or to their undue suffering. Dr. Gomulka was aware that the load temperature in the holding barn was between +4˚C. to +6˚C. The necropsy is said to have been performed at 10:10 a.m. on December 31st. He took the photographs of the necropsy samples after removing them from the plastic bag into which they were gathered.

174Dr. Gomulka noted in his report that the birds were "cold on touch," in good body condition, moderately cyanotic, and poorly feathered on the ventral (breast) side on the thoraco-abdomen. He also noted "the birds have some wet feathers." It is common ground between all of the veterinary witnesses, called for both the Crown and the Defence that the post-mortem symptoms found on the necropsy showed that the birds did not likely die of infectious diseases. These symptoms are consistent with many causes of death, which could include either death through chilling, shock or over-heating shock, according to Dr. Appelt. In his conclusions, Dr. Gomulka indicated that the birds were "cold and wet." There were no signs of any infectious cause of death. "Location of dead chicken at the top and sides of the trailer also suggests weather condition could play role." "Consider what was said above, in my professional opinion, inadequate protection of the chickens from adverse weather condition could be the cause of high DOA in this lot."

175The defence submits that in probing the findings and conclusions of Dr. Gomulka, in testimony and cross-examination of several witnesses, it is obvious that the symptoms found in the dead birds are common to birds, which would have died from either hypothermia (cold shock) or hyperthermia (heat shock) plus a multiplicity of other growth-related and metabolic causes. The birds had been dead for a long period of time. They would still be warm if they died in the holding barn. It was Dr. Ouckama's opinion that the birds were likely dead before they reached the holding barn at around 4:00 a.m. Dr. Appelt conceded that the birds could have been exposed to either extremes of cold or heat, depending upon their location in the trailer, because of uneven distribution of heat and humidity inside the tarped transport trailer.

c. Evidence of Dr. Gordon Doonan

176Dr. Doonan is an expert in veterinary medicine from Canadian Food Inspection Agency. He also wrote a report on the cause of death. His opinion was that the defence theory, which claims the birds could have died from disease or infection, is not supported by the facts.

177Dr. Doonan said that there was no indication from Leroy & Wilene Leyen Farms that any of the birds had been observed or treated for any problems.

178He also testified that if there were such problems, the distribution of DOAs on T-07 would be scattered throughout the entire load; however, in this case the dead birds were only found in certain places in the trailer. This is consistent with exposure to adverse weather conditions.

179The location of wet, dead birds in the outer crate is also consistent with exposure to cold weather.

180He testified that the birds were subjected to prolonged suffering. The birds that died during transport certainly suffered prior to death. He also stated that even the birds that survived were likely to have suffered because of the cold temperatures and inadequate protection from snow and ice.

181Dr. Doonan also pointed out that there was a very low mortality rate on the farm and a very high rate during transport.

182Dr. Doonan agreed with Dr. Gomulka's opinion as to cause of death for the following reasons:

i. The transport took place in winter with below freezing temperatures and some birds apparently became wet at the time of loading, since they had been dry when caught;

ii. The trailer had to wait several hours without proper supervision before being unloaded; and

iii. The distribution of dead birds coincides with the distribution described in scientific literature associated with exposure to adverse weather.

183The defendant also takes issue with Dr. Doonan's opinion.

184The defence submits that Dr. Gordon Doonan is obviously dedicated to the cause of humane animal transportation, but argues that he has express, admitted bias against the tarp, crate and flat-bed technology. He reviewed only the CFIA inspector's reports, Dr. Gomulka's necropsy report, the flock sheet for T-07, and the condemnation certificates for the T-07 load of cockerels. Prior to writing his report, he did not review any other available documents and he did have the benefit of hearing the testimony of the drivers, or any of the Maple Lodge witnesses at trial. He did not appear to know that the load had been covered with a tarp while being loaded.

185Dr. Doonan agreed with the conclusions reached by Dr. Gomulka, in his necropsy report, for T-07. He found that wet birds, poor feathering, cyanosis, and congested internal organs were consistent with mortality during transport. Dr. Ouckama testified that the same symptoms can be due to many other factors, including metabolic pre-disposition in these rapid-growing young male birds, which can cause sudden heart failure, blood imbalances, and a number of other reasons.

186Dr. Doonan also commented upon the fact that the dead birds were apparently not randomly distributed throughout the load, as being an indicator of undue exposure to weather. He conceded that birds can die of hypothermia and hyperthermia on the same load, with the existing technology. The difficulty of lack of specificity of the source location on the load of the sample birds, which were subject to Dr. Gomulka's necropsy compounds the concerns raised by the defendant. The defence submits that the distribution of DOA's, sketched on the Trailer Report, is unreliable because it does not indicate the presence of high DOA's in the areas which would be expected, due to exposure from weather and the elements. Cold air and snow enter at the bottom rear of the tarped load. Moreover, he asks the Court to accept Dr. Ouckama's opinion that the distribution was random, being more than 60% of the load.

187Dr. Doonan states that the location of wet, dead birds in outer crates, on the top and sides of the trailer, is consistent with exposure to adverse weather. The Defendant argues that the evidence does not support the fact that there were wet, dead birds in any more than one upper crate, and some lower outside driver's- side crates in the back half of Trailer T-07. The Court finds that there were wet dead birds in the areas sketched on the trailer report and that Mr. Pachai photographed what he observed in the last half of the load, substantiating that particular area depicted was wet. The driver of T-07 also told the Canadian Food Inspection Agency inspector that birds on top got wet during loading. Dr. Doonan was entitled to rely on this evidence in formulating his opinion.

188Dr. Doonan also testified that excessive waiting time on a stationary vehicle contributes to increased mortality in transporting chickens. The defence submits that T-07 was adequately protected from the elements during transport and at Maple Lodge Farms. The internal temperature of the load was "within" the comfort zone for broiler chickens if the temperature differential was accurate between the recorded external surface temperature of the bottom row of crates and the actual load temperature. Dr. Doonan had said he was not aware of the standard factor used by the Defendant to convert external surface temperature to an internal crate temperature. However, waiting time is known according to all the expert witnesses to have the potential to increase mortality in the load. It is for that reason that a plan is developed by the defendant for pick-up and kill to minimize waiting time.

189The Court bears in mind that the load in T-07 commenced loading at 11:49 pm.(Driver Sheet) and was actually unloaded for the production line at 8:51 am.(Kill Sheet) The total time the chickens were stationary was almost nine (9) hours.

190While the Defendant submits that Dr. Doonan's conclusion that the birds suffered a prolonged death, during transport and lairage, is not supported by the evidence, as a whole, I find otherwise.

191Although Dr. Ouckama performed a study at Maple Lodge Farms in 2007, dealing specifically with the effects of prolonged lairage in the Maple Lodge holding barn conditions and concluded that this was not a material contributor to mortality on loads of chickens for the Defendant, especially in cold weather, the probative value of her opinion is reduced for reasons previously given.

192Most of the expert evidence concluded that the wet birds would likely have expired during transport, due to the weather conditions and being unable to regulate their body temperature. For those birds, regardless of lairage time, their deaths would be accompanied by undue suffering.

d. Evidence of Dr. Appelt

193Dr. Appelt agreed with Dr. Gomulka's opinion that the birds died from inadequate protection from the environment.

194He found the necropsy report was significant because of the absence of diseases or other abnormalities that would explain how 7.4% of the birds died.

195He further stated that the fact the birds were cold to the touch is significant because they had been dead for some time.

196Ultimately, Dr. Appelt, Dr. Doonan and Dr. Gomulka agreed that in their opinion the transportation of birds on trailer T-07 did not take place under humane conditions.

197The defendant challenges the "abbreviated necropsy", the manner of sampling of the birds, and the lack of materials available to the Crown veterinarians, which were available to the defence expert.

198The position of the defendant is that cause of death of the sampled birds has not been established beyond a reasonable doubt and the defendant submits that a reasonable doubt arises as to whether the Crown has proven that they suffered unduly on account of undue exposure to weather.

199Dr. Appelt's report is dated July 26th, 2011. It is primarily based on documentation which later became Exhibit 1 at trial, although he did not refer to all of the documents in that brief. He concurred with Dr. Gomulka's conclusions concerning load T-07 as being reasonable and supported by the observations of Inspector Pachai. On page three of his report, he concluded that for both T-07 and T-23, the birds on the trailers had been exposed to a climate incompatible with life. He further opined that transporting birds unduly exposed to the weather caused suffering and death on both loads. When questioned at trial, he admitted that the load had to be tarped to protect the birds and that it is difficult to make a precise attribution of dead birds to a specific occurrence in the process of handling and transportation. He admitted that it was impossible to determine where the sample birds came from on the load. He was relying on the distribution pattern of dead birds on T-07, in that there was not a random distribution throughout the trailer. He formed his opinion to agree with the conclusions reached by Dr. Gomulka in his necropsy report, based upon the following factors:

• The observations of the birds being wet, suggesting exposure to a cold environment.

• The "load temperature" in the holding barn was below the comfort zone of 5˚C.

• The presence of snow and ice in the crates on the load.

• The wetness of the sample of birds examined by Dr. Gomulka.

• The fact that humidity may reach sufficient levels within a tarped vehicle that condensation occurs inside the tarps, dripping on to the birds, causing death because the birds could no longer maintain a body temperature compatible with life.

• The lack of evidence of death from infectious disease.

These factors were determined by connecting the facts recorded by the inspector, and the then-available documents.

200Mr. Folkes stated that "in fairness, Dr. Appelt did not have the benefit of all of the information available to the court, or to Dr. Ouckama, at the time he wrote his report. He did not know about the Defendant's welfare protocols, or that the top tarp had been pulled to protect the birds during loading. He did not have the benefit of hearing all of the subsequent testimony in the trial". However, full cross-examination included this information in testing Dr. Appelt's opinion, which he maintained.

201The Defendant argues that that a number of the conclusions reached by Dr. Gomulka in his necropsy report are untenable because they are based on unreliable and insufficient facts. These include:

Wet Birds

a. The degree of wetness of the sample birds viewed by Dr. Gomulka, which the defendant says is not probably attributable to soaking from exposure to weather during the transportation process, but rather from soaking on the floor of the live-receiving area, or that some may have been wet from condensation within the fully-tarped load.

b. Dr. Gomulka argued that if the sample birds had been soaked from being piled on the floor, where the area was constantly being washed down, and only one side of the carcass would be wet. In his necropsy report, he noted that the young cockerels on Trailer T-07 had few feathers on the breast area, but rather only had feathers on their backs and wings. The feathers were soaked on only one side of the birds on the back and wings where feathers were located.

c. Dr. Gomulka and Dr. Appelt were both "unaware" of the tarping procedure, followed by Kevin Donaldson, and provided in the Maple Lodge Standard Loading Instructions, for pulling the top tarp, as loading progressed in snowy weather, to protect T-07. In his report, it was Dr. Appelt's opinion that the wet birds were either exposed to rain, snow and road spray or condensation inside the load, which wetted the birds. The defendant submits that it is highly unlikely that the birds were soaked from exposure to elements outside of the tarped load. If the birds were exposed to condensation within the tarped load, it is said to support Dr. Ouckama's thesis that the tarp was overly tightened to protect the birds and there was a subsequent build- up of heat, moisture and, subsequently, condensation, with dripping from the tarps within the load. She also said that this would wet the birds in the bottom rows of crates as the moisture dripped down through the load. As there is no concrete evidence of where the 10 birds in the necropsy sample were located on the load configuration, the defendant submits it is an unjustified logical leap to conclude anything about load exposure or conditions from 10 of 9,563 birds, without knowing where they were located within the load.

d. The conclusions do not correspond to the Inspector's notes. In the rear-bottom crates, where snow and ice was detected by Inspector Pachai, no dead birds were noted. Only one upper outside crate, and some in outer-driver's side crates, contained dead birds, when the load was viewed by Inspector Pachai, not numerous crates, as implied by Dr. Gomulka.

e. There were no notations of wet birds on the load by the catchers or on the driver sheet, nor by the load monitor, Luis, on the Load Condition Report at 4:00 a.m. Dr. Gomulka did not make a note of any wet birds on his ante mortem inspection of the load, at about 9:00 a.m., nor did the Trailer Report.

f. The defendant submits that Dr. Appelt and Dr. Gomulka ignored Inspector Pachai's comment that most of the load was dry. All of the above illustrates that it was unlikely that the birds were "soaked" before unloading. Dr. Ouckama observed that exposure to snow while loading would not likely soak the birds, since the crate density on T-07 allowed the birds to shake snow off their fathers. She also accounted for the presence of moisture on the load from heat and humidity build up within a tarped load.

Distribution Pattern of DOA's

g. Dr. Gomulka was unfamiliar with the published academic articles dealing with heat/cold stresses, heat and moisture build up, DOA clusterings and other concepts, discussed by Dr. Appelt and Dr. Ouckama. It is said that his primary experience was that of being a plant inspector of eviscerated birds on the processing line, and it is submitted that he did not weigh the evidence available to him properly.

h. Dr. Gomulka and Dr. Appelt disregarded the note by Inspector Pachai that the DOA's "started right away," i.e. at the very front, top of the load, from his discussion with the Defendant's foreman. This the defendant says is more of an indicator of heat stress than exposure to cold, with the top, front of the load being the warmest area, based on the published academic studies.

i. Similarly, there was no regard to Inspector Pachai's note that the birds on T-07 had "tails waving up and down." He explained, in testimony, that this was a sign of poor load ventilation.

j. No observations were made of snow and ice or wet birds in more than one upper crate by Inspector Pachai. Upper crates would be most affected, if the birds on T-07 were unduly exposed to snow during the loading process, plus low temperatures during transport.

k. Only Dr. Gomulka observed T-07 just before unloading, during his ante-mortem inspection, as noted in paragraph 3(g) above. He made no note of a distribution of dead or distressed birds. It is submitted that the noted observations of Inspector Pachai do not support the conclusion that there was typical clustering of high DOA's on T-07, at the bottom and back of the load, where cold, snowy air enters.

l. The Trailer Report does not show any clustering of high DOA's in any specific areas, but rather a diffuse pattern over 60% of the load, submitted as being supportive of causes of death unrelated to thermal shock.

Temperature

m. It is submitted that Dr. Appelt was not aware that the temperatures recorded were external crate surface temperatures, not temperatures of the internal crates where the birds were located, or load temperatures, which the defendant calculates would be subject to a 5˚ C. working increase.

Presence of Snow and Ice in the Load

n. The only snow and ice which was observed in T-07 was in the rear-bottom outside crates. No dead birds were observed in these crates. Driver Donaldson testified that snow in the bottom crates was not unusual in snowy, winter weather. It is submitted that his observation corresponds to the scientific literature on the subject, referred to by Dr. Appelt and by Dr. Ouckama. This is an inevitable result of winter haulage in fully-tarped loads, to allow air to enter to ventilate the load. The presence of snow and ice in crates at the rear-bottom of a fully-tarped load in winter cannot be, in itself, an indicator of undue exposure to the weather, with the present technology.

202Dr. Appelt suggested that the birds on Trailer T-07 could have been better protected, if the top row and bottom side crates had been left empty. This would, in theory, have created a zone where warm and cool air could mix before contacting the birds on the load. Mark Finnimore and Ben Durose testified that this had been considered, and tried at Maple Lodge, without conclusive success. Dr. Ouckama pointed out in her report that leaving crates on the top row empty would be less effective than covering it with tarps, as done during loading T-07. She also pointed out that leaving side crates empty would reduce the heat production on a load of chickens and reduce the ability to keep it warm.

203The defendant further takes the position that Dr. Appelt's evidence does not properly address the nature of the charges in the information, particularized as being, "undue exposure to the weather." The Defendant contends that clause (d) of the regulation refers to exposure to the ambient environmental conditions. He submits that complaints regarding mortality within fully-tarped loads result from inadequate passage of air through loads. The expert witnesses agree that it is inadequate ventilation which can cause fatal build- up of heat, humidity, condensation, and other gases. These factors, which arise within a fully-tarped load, he submitted should be dealt with under a separate charge, which would be under Subsection (e), "inadequate ventilation."

204The Court here considers primarily the environmental conditions on the two dates in question, but for reasons, infra, the transportation of T-07 includes the lairage, and if the originating undue exposure to the weather occurred prior to lairage and was exacerbated by the manner of tarping creating additional wetness and condensation, there would be a causal connection to the exposure to weather. The Crown must prove that the chickens suffered unduly by undue exposure to weather, whether the sole or contributing cause beyond de minimis.

205One cannot merely focus on the ice and snow remaining in the trailer at the time of notations and inspection. Ice and snow obviously melt on exposure to higher temperatures, including the heat build-up. The absence of other ice and snow after hours of lairage may or may not be some evidence of its presence or absence at the time of trip from the farm to Maple Lodge Farms. It is one factor for the Court to consider.

206I also find that when the vehicle was in motion, the wind would add another factor to whether the load was chilled enroute. Mr. Donaldson did not stop to inspect or readjust the tarping during the trip in accordance with Maple Lodge Farms Standard Operating Procedures.

e. Evidence of Dr. Rachel Ouckama

207In her report of July 25th, 2011, Dr. Ouckama canvasses the facts which were available to her. She also reviewed all of the documents available in what became Exhibit 1, as well as the Defendant's Standard Operating Procedures, and the industry Recommended Codes of Practice. She reviewed the Defendant's Daily Broiler Condemn Reports for three days around the time that T-07 was transported. Dr. Ouckama was much more familiar with the Maple Lodge transportation operations than Dr. Appelt or Dr. Doonan. She had approved the Maple Lodge Farms Standard Operating Procedures, which were in force at the time of the loads in question. She was the last witness for the Defence.

208In her report (Exhibit 7) Dr. Ouckama briefly describes the husbandry practices for the broiler/cockerel birds, up until the time of transportation. She describes the catching process, and the rapid growth pattern for the birds loaded on to T-07. She carefully analyzes the loading procedures and projects the conditions at the time of loading from the available documents, including the Standard Tarping Protection Procedures. There is evidence that these procedures were employed by driver Donaldson for this load. Dr. Appelt admitted that the Defendant's Standard Operating Procedures for transportation were reasonable, if they were followed.

209Dr. Ouckama considers the context of all five loads, which came from the Leyen farms, loaded in the same evening, during the same snowy weather conditions, in farms that were less than one kilometre apart. She noted that snow was a common winter condition, and in December 2008, 17 of 31 days had measurable snowfall. It was her opinion that leaving the top row of crates empty would not have been as effective in protecting the birds from snow as unfurling the top tarp, as the loading progressed. The other four loads from these farms had DOA's range from .58% to 1.75%. Some of these loads had empty crates, but there was no correlation between the number of DOA's and empty crates on each load. All loads had similar and appropriate crate densities within the Standard Operating Procedure instructions.

210Dr. Ouckama said that it was normal to expect snow to be in the bottom back outside crates, in a load hauled over snowy roads. She noted no concerns expressed during the trip home by an experienced driver, and the load was fully tarped. Had the driver opened up the tarps at the lower back to increase ventilation, more snow would have entered the lower-rear crates. She interpreted the evidence that there was no indication that the birds were "wet," when the load left the farm at 1:15 a.m.

211Dr. Ouckama then commented upon the procedures for weigh in, removal of the top tarp, and loosening of the side tarps, in Maple Lodge holding Barn Number One, and the movement of the load into Barn Number Two, to allow gentle passive ventilation for heat to rise within the load, in a fully-protected environment. She concluded that the holding time of this load, from weigh in, until slaughter, over approximately 5.5 hours, did not materially contribute to the high DOA's on the load. In testimony, she compared the holding times for the four other loads, from the same farms, which arrived at Maple Lodge Farms on December 31st. She stated there was no correlation between holding times and DOA's on the loads, with the following results:

Trailer No.	Holding Time	DOA's
T-13	4.5 hours	.7%
T-09	3.8 hours	1%
T-03	.95 hours	.58%
T-07	5.5 hours	7.4%

212Dr. Ouckama was extensively cross-examined about the issues of what, if any, special steps should have been taken to prevent the high mortality on Trailer T-07. She reiterated that all available evidence points to normal procedures being followed for this load, and, in fact, these were the same procedures followed for the other four loads from the same producer on the same night, which had very low DOA's. Dr. Ouckama did not accept that the birds would have been wetted, to the point of being soaked during loading, even with two to three minutes exposure to snow in the crates during loading. The birds would have shaken off the snow from their feathers. Snow conditions were not atypical for that month. Dr. Ouckama concluded that it was extremely difficult to predict and identify factors in advance, which would require special steps being taken to prevent the high incidents of DOA's on Trailer T-07.

213Dr. Ouckama goes on to describe the normal procedures being followed for protection of the load after it arrived at Maple Lodge Farms. She noted that the truck was monitored at 4:10 a.m. She originally had assumed it would be monitored hourly thereafter. On cross-examination, she admitted that this had been an error, in that the evidence at trial was that the load had not been monitored after that time. She indicated that even if the load had been monitored and distress reported to dispatch, this would have interrupted the slaughter sequence and holding times for birds on loads from the same farm and another farm (Faux) which had already experienced extended lairage. She was of the view that reducing holding times would not likely have brought mortality below 7.4% DOA. It was her opinion that the birds died before entering the holding barn. Once again, the four other loads from the Leyen farms were held using the same preparation procedures as Trailer T-07, with the exception of T-11, which was sent directly in for slaughter. The DOA's on these other loads were mostly within normal limits.

214Dr. Ouckama also reviewed the observations made of the trailer by Inspector Pachai for T-07 and its sister Trailer T-11. She concluded that some snow and ice was accumulated during travel, through the necessary air intake area at the bottom of the tarps, at the rear area of T-07. She found that the front and top pattern to mortality was congruent with the hot spot, which was likely at the front and top of the load. She found that this indicated hyperthermia, as the reason for fatal stress to the birds on this load, rather than chilling, since there was no snow and ice found in the top rows. Dr. Ouckama stated that the hot spot was caused by the driver unintentionally over-tightening the tarps on T-07, to protect the load from taking in snow during travel. This restricted the ventilation exchanged and produced paradoxical overheating in the front and top of the load. The increase in humidity and condensation on the inside of the tarp coverings could account for wet birds being seen in the crates along the side, toward the bottom of the load. If the birds were soaked from condensation, this would increase the risk of fatal chilling stress, in the outer areas of the same load. She concluded that there was no evidence of exposure to adverse weather conditions for the load, and that all normal accepted routine bird and load handling procedures had been followed.

215Dr. Ouckama commented upon Dr. Gomulka's necropsy procedures, and her view that his necropsy did not support the conclusion that the birds had been unduly exposed to adverse weather conditions. The necropsy was said to be cursory, being a visual examination only of the carcass and internal organs. She agreed that there were no obvious signs of infectious disease. The necropsy procedures were originally designed to detect infectious disease, for purposes of certifying flocks to be disease free for export purposes. They were not appropriate to detect exposure to weather. There were no additional tests conducted to address the numerous metabolic conditions, which could well have been encountered by this flock of rapidly-growing young cockerels, at 33 days of age, to rule out these probable causes, including histology, differential staining, serology, bacteriology, or virology, to determine if Dr. Gomulka's diagnosis could be collaborated. In her testimony, she enumerated the numerous other causes, which could have accounted for the high DOA's on this load. After reviewing the condemnation certificate, she indicated that there was the presence of other metabolic diseases in the flock, which had warranted further investigation, to account for the high DOA level on this load. These other causes included right-sided heart failure, which was demonstrated in the academic literature to account for 31% of broiler transport mortality. Defence submit that the inference she draws from the condemnation certificate must be considered with the flock sheet to draw an appropriate linkage.

f. Causes of DOAs

216The causes of DOAs (Dead on Arrival) are complex. Studies have shown that higher DOAs are encountered in very hot and very cold temperatures.

217Maple Lodge Farms outlined a number of what they submit are potential causes or explanations for high DOAs:

i. The fragility of the birds being transported.

Significant stress is experienced by the chickens, and many animals, in the normal course of transport, using acceptable practices. These chickens are said to be especially fragile.

ii. Broiler chicken and stress

These birds were 33 days old. They are expected to have an average per head weight of 1.77 kilograms. Instead the average per head weight for T-07 was 1.87 kilograms. It is submitted that this very rapid growth within the last few days before transport, creates problems. They have low stress tolerance. Dr. Ouckama said they are highly vulnerable to sudden death with any type of stress. Their rapid growth predisposes them to a number of metabolic conditions or diseases.

iii. Broiler chicken and physiology

Broiler cockerels are also genetically designed to grow very rapidly during a short lifetime. They are constantly fed until feed withdrawal about six hours before transport (a regulatory food safety measure). It is said that normal transport, these birds are taken to the edge of their physiological limits. Some can die due to metabolic upsets and the inability to regulate their own body temperature.

7.4 Count 34 – February 23, 2009: Transportation of Spent Hens-Trailer T-23

218The factual underpinning for the second count is substantially similar to the first count.

219On February 23, 2009, a load of "spent hens", female chickens at the end of their useful egg laying lives, were transported from Gray Ridge Egg Farm in Moorefield, Ontario to Maple Lodge Farms in Brampton for slaughter.

220This load, identified as trailer T-23, included a total of 10,944 birds. This load was determined, after a Canadian Food Inspection Agency investigation, to contain a total of 1,181 dead birds on arrival at the Maple Lodge facility in Brampton; 10.8% of the total number of birds onboard the truck had died.

7.4.1 Nature of the Birds

221Female hens which are relied upon for laying eggs are typically transported as chicks in a climate controlled vehicle to poultry barns.

222Generally, their laying cycle peaks at about 72 weeks old, at which time many of the chickens are fragile, due to the leaching of calcium from their bones by the constant production of egg shells. Many have osteoporosis, and a loss of feathering.

223The hens loaded on trailer T-23 were 72 weeks old, and had spent their lives in group cages in a large climate-controlled barn maximizing egg production.

224The process of removing these birds from their cages is very stressful.

225The industry refers to these birds as "spent hens". Maple Lodge Farms pays nothing for these birds, but does slaughter them and use them for many meat by-products, pet food etc., for which they receive remuneration.

226Maple Lodge Farms receives spent hens from the greater Ontario area, as well as shipments from other provinces and the northern United States.

7.4.2 Weather

227The outside air temperature was between minus 15 and minus 16 degrees Celsius while loading according to the Maple Lodge Farms driver. Mr. Durose said the temperature at the time of loading was between minus 12.8 and minus 13.9 degrees Celsius.

228When one takes the wind chill into account it was closer to minus 24 degrees Celsius.

229At the time of departure from the farm it was minus 9 degrees Celsius.

230According to Dr. Appelt, the weather conditions on Feb.23, 2009 at the farm made bird transportation "a very risky undertaking".

7.4.3 Pickup and Loading

231On February 23, 2009 at approximately 5:30 a.m. John Melo, a driver for Maple Lodge Farms, arrived at Grey Ridge Egg Farm in Moorefield, Ontario to pick up a load of 10,944 spent hens.

232Mr. Melo, the driver who loaded this trailer, had 15 years of driver experience for Maple Lodge Farms at that time. His was one of four loads of spent hens coming from the same barn at Moorefield, Ontario. He had worked on the Maple Lodge yard crew for four and a half years, and he was a catcher before becoming a driver. He was very familiar with the Defendant's Standard Operating Procedures for loading and transporting birds, which applied both to broilers and to spent hens.

233He followed the same procedures as outlined by driver Donaldson for Trailer T-07. The same protocol applied to both fowl and broilers. He picked up his paperwork, including a weigh bill, map and driver sheet, at about 3:00 a.m. After performing his pre-trip checks of the equipment, he drove to the farm, arriving at about 5:30 a.m.

234At 5:45 a.m. workers started loading the spent hens on trailer T-23 and continued to do so until about 8:30 in the morning. He was the third trailer loading from the barn, which held about 45,000 birds. The birds had to be carried out through long aisles, between the cages in the barn. The barn temperature was very cold, since the barn had been open since catching started around midnight. None of the crates were left empty.

235Mr. Melo testified that it was between -15 and -16 degrees Celsius while loading. It was cold and dry and windy. He said he had no concerns, since he had loaded spent hens in those conditions before. The trailer was protected from the wind by pulling the top and driver's side tarp, as the load progressed from front to back of the trailer. The passenger-side tarp remained closed. The truck was protected by the barn on the driver's side. When the truck was moved ahead, he ensured that tarps were pulled to protect the birds from the wind, which did not affect the load in his opinion.

236The load generated heat and the temperature rose, as loading progressed. Driver Melo said he was comfortable in his coveralls and hoodie. There were no issues with catchers or snow, and the load was finished by 8:30 a.m.

237According to Mr. Melo's observations recorded on the Driver's Sheet, the spent hens appeared to be in poor health; they were small and had no feathers. Despite these observations, there was no indication from Grey Ridge Egg Farm that there were any problems with the health of the birds with respect to disease or infections. The catchers were good, and the tarps and crates were average. He noted that the top tarp needed one strap. Mr. Melo testified that although there was a problem with one strap, this would not affect the ability to adequately protect the load because there are six other straps.

238He denied that the load was wet on loading. He was not particularly concerned about the temperature of -15˚C., since he had loaded in colder weather.

239He testified he had been given a refresher training course on the Standard Operating Procedures a few months before this load, and he said he followed all the Standard Operating Procedures on loading.

240Despite the cold temperatures recorded at Grey Ridge Egg Farm and the fact that one of the straps on the top tarp was missing or broken, Mr. Melo did not leave any of the outside crates on the trailer empty to act as a barrier against adverse weather conditions. In fact, Mr. Melo testified that as of February 2009, Maple Lodge Farms was not in the practice of leaving empty crates. He noted that he did not leave the outside bottom rows of crates empty because these were not standard procedures at the time. He remembers trying these procedures a few years later, but they were "dropped, probably because they did not work".

241When he left he testified the load was "steaming" as he secured it.

242The Crown submits that Trailer T-23 left the farm at approximately 8:45 a.m. for Maple Lodge Farms despite the poor condition of the spent hens, the cold temperature, and the possibility that the upper tarp could not adequately protect the load from adverse weather.

7.4.4 Transport to Maple Lodge Farms

243Mr. Melo left for Maple Lodge Farms around 8:45 a.m. with a full load of spent hens. It was -9 degrees Celsius when he left. He proceeded directly back to Maple Lodge Farms, arriving at 10:25 a.m.

244Dr. Martin Appelt, an expert in veterinary medicine and humane transportation of chickens, testified that similar to broilers, there is no adaptation period for spent hens. Accordingly, there are a number of risks involved in the sudden transition from inside the barn to the trailer. This places tremendous stress on the spent hens because they are compromised animals that have reduced capabilities to deal with stressors imposed during transport. The humane transport of chickens requires that spent hens be kept in a comfort zone of about 13 to 30 degrees Celsius. The Crown submits that it is significant, therefore, that the outside temperature of load T-23 while en route to Maple Lodge Farms was well below that range.

245As was the evidence relating to load T-07, the vehicles used by Maple Lodge Farms do not have thermometers or equipment capable of measuring the temperature of the load while en route. It is possible roughly estimate of the temperature based on the temperature of the load in the barn. However, for reasons that will be explained below, there is no Load Condition Report for T-23. Nevertheless, the information that we do have supports the inference that the temperature to which the spent hens were exposed during transport was well below their recommended comfort zone.

246On cross-examination, Mr. Melo indicated that he felt he could not refuse to load the flock and leave them in the cold barn. The birds would not be fed and, therefore, starve, freeze and die, if left in the barn. The heat in the barn was generated by the birds and a half empty barn would not be able to heat up.

247Mr. Durose testified that Maple Lodge Farms did not take any special precautions when the weather was cold. His evidence was that the steps taken to make the transport of spent hens humane are the same throughout winter. The temperature at the time of loading was between approximately -12.8 and -13.9 degrees Celsius. When taking the wind chill into account it was closer to -24 degrees. No special steps were taken despite these temperatures, the poor condition of the spent hens, and the fact that prior to February 2009, the transportation of spent hens resulted in inordinately high, or (in Mr. Durose's words) "astronomical numbers" of dead spent hens arriving at the processing plant. Indeed, the Crown submits that the defendant's attitude is indicated by the evidence that was introduced by defence witnesses that had the spent hens not been transported, they would have either been gassed or loaded on crates and send directly to a different processing or rendering plant. This suggests, the Crown argues, that defendant believed that even inhumane transportation was better than the fate that would otherwise await spent hens.

7.4.5 Arrival and Inspection at Maple Lodge Farms

248On arrival, the driver of T-23 reported that he saw a lot of mortality on the load to the dispatcher, when he removed the top tarp. Once again, according to him, the load was "steaming" as he removed the top tarp.

249When T-23 arrived at Maple Lodge Farms it was weighed but did not proceed to the barn to be monitored while waiting for slaughter. Load T-23, as indicated on Mr. Melo's driver sheet, went straight to processing. According to Mr. Melo he identified a large number of dead birds all over the top and inside crates. He estimated more than 200 dead and he notified dispatch. When the trailer arrived at live processing 1,181 DOAs or 10.8% of the load - were found on both sides of the trailer. The Crown submits that the distribution of the dead birds on the trailer is consistent with inadequate protection from cold, similar to load T-07. It is significant to note that the three other loads from Gray Ridge Egg Farm that left on February 23, 2009 went to the barn and followed the normal procedure for processing. When Mr. Melo undid the tarps he noticed there was a problem with DOAs in the trailer and Mr. Durose determined that it was imperative to get the spent hens to the kill room as soon as possible. The load was killed at 12:34 pm instead of the scheduled 18:19 pm. There is little doubt but that these chickens were in distress and had suffered as a result.

250Ben Durose testified that this load was weighed in at 10:31 a.m. at the Maple Lodge Farms scales. There was no trailer monitoring form because it appears that the load was sent directly to the line- up for the live-receiving room, and not held in Barn Number Two. DOA's on all four loads, coming from the same producer that day were very high. It was a very, very bad situation. His investigation later reported that all normal procedures were followed, and there was no obvious cause for the high DOA's on the four loads. The Investigation Report suggested leaving the bottom-outside crates empty, and the top two rows, at the rear of the trailer, empty. However, this procedure was subsequently tried he said, and did not provide any beneficial results. He also testified about a situation on the same day, when loads of leghorn fowl arrived from New Day Farms in South Central Ohio, with the same crate density as T-23. The birds were held in the Defendant's Barn Number Two overnight, after a 12-hour trip from the farm to the Defendant's plant. The Ohio loads had DOA's in a range from 1.07 to 1.5%, although they were handled in accordance with the same Operating Procedures as T-23. The only exception being that the Ohio loads would have stopped to warm up every two hours. The trip for T-23 was under two hours.

251Mr. Durose's opinion in the investigation of T-23, and its three sister loads, was that all of the Standard Operating Procedures had been followed correctly. These procedures had been established to train and instruction Maple Lodge personnel, with respect to the proper handling, to enhance the welfare of all birds being transported. There was no evidence of careless catching. He said there was no evidence of wet, sick, or injured birds being loaded, or of equipment problems. Crate densities were appropriate for the weather, and the tarps were properly adjusted during the loading and transport period. Ben Durose noted that environmental monitoring devices had been considered and tried at Maple Lodge. These were not used at the time because it had been determined that they were not reliable, and they were discarded because of problems.

252On cross-examination, Ben Durose admitted that he was the executive responsible for transporting loads of chicken in December of 2008 and February of 2009. He had been on the committee which had developed the earlier Humane Codes of Practice for the handling of birds, which was meant to be a guide for everything from planning through catching and transportation. He developed the Standard Operating Procedures for the Maple Lodge Farms Bird Handling and Welfare Program. The welfare of the birds was a prime consideration in developing this program. He described the Maple Lodge Farms driver training and refresher programs. He described the daily monitoring of the programs through detailed documentation and contact with the dispatcher, answering driver concerns and enquiries. Mr. Durose was also available by cell phone on a 24/7 basis. He was responsible for conducting investigations of problematic loads. He described the procedures for protecting loads, by pulling tarps during cold, rainy, or snowy weather. He noted that Maple Lodge Farms was never provided with any of the CFIA load investigation documents, to assist in the Defendant's load investigations of problematic loads.

253As discussed earlier in these reasons, it was problematic and surprizing that he was not familiar with Exhibit 21 setting standards for humane transportation of fowl, which he did not use in training and did not provide to his drivers.

254On further cross-examination, Ben Durose indicated that the load temperature for T-23 was rising from -15˚ C., at the time of loading, to -9˚C. on leaving the farm. Weather reports and forecasts were checked regularly, before scheduling loads at the time. The temperatures for the T-23 loading were cold, but not unusual for February in Ontario.

255He remarked that Maple Lodge Farms had successful experience in transporting loads in those temperatures. He admitted that there had been some previous problems with a few winter loads in February 2007. This would have been 6,000 to 8,000 loads previous. The temperature did not call for extraordinary steps in his opinion.

256The transition from loose crates to dolly technology for spent hens had been in planning since 2007, and was not adopted until January 2012. This system minimized the handling and lowered the transportation stress for the fowl birds.

257Trailer T-23 was slaughtered at 12:34 p.m. 1,181 dead birds were found, "mostly on both sides of the trailer," as indicated in the Live Receiving Trailer Report. There appears to have been a feed disruption within 48 hours before loading, which was normal. Feed was withdrawn at 6:00 p.m., about 12 hours before T-23 was loaded, being about six hours before starting to load the first trailer at this barn. The Catching Crew Report indicated no issues with Trailer T-23. The Internal Load Investigation Report, of the Defendant, indicates that all four loads, from this farm, were deviations. It was a very cold day. Crate density was an appropriate 25 kilograms per crate. He testified that all procedures were followed correctly. DOA's were located on the sides of the trailers. The suggested corrective action was possibly leave side and top rows empty.

7.4.6 Necropsy and Expert Evidence of Causation

258Dr. Gomulka also conducted the necropsy for the spent hens in load T-23. He made a number of significant findings that support the finding that the high number of DOAs was caused by inadequate protection from cold weather. Dr. Gomulka noted that the dead spent hens in the sample were in good body condition. He testified that some of the birds had up to 90% of their body featherless, which makes them particularly vulnerable to cold weather conditions. All of the spent hens selected for necropsy were cold to the touch, which indicates that they had died well before being unloaded from the trailer.

259During the necropsy, Dr. Gomulka observed that the spent hens were still producing eggs. The fact they were still producing eggs indicates the spent hens were in good condition and were not suffering from an underlying disease that could have caused death. Ultimately, Dr. Gomulka's opinion is that the spent hens suffered during the transport and the high mortality rate might well be due to inadequate protection from cold weather. There were no indicia of disease or infection that would have caused concern and necessitated further investigation. The Crown submits that there is no other possible explanation for the fact that 10.8% died during transport to Maple Lodge Farms.

260Mr. Folkes characterizes Dr. Gomulka's necropsy as "cursory" on a sample of 10 birds, which appeared to have come from Trailer T-23, although there is no direct reference as to how or where on the load they were retrieved. In summary, he found that all 10 birds were in good body condition and cyanotic. There was significant feather loss, i.e. up to 90%. All of the birds were cold to the touch. Each appeared to be in egg production. None of the birds contained any feed, being an indicator of usual feed withdrawal.

261Dr. Gomulka did not indicate any moisture issues with the necropsy sample. He concluded that there were no signs of infectious cause of death. He stated that the uneven location of the dead birds in the trailer pointed to the adverse effects of cold weather on the load. He states: "In my professional opinion, high mortality rare [sic] in load T-34 might be due to inadequate protection of the load from cold weather during transport." Obviously the reference to T-34 is a typographical error. Other evidence supports the necropsy was done on birds from load T-23.

262He did not remember the time that he performed the necropsy, but it was likely within a few hours of the sample being placed on the table in the CFIA office in a plastic bag. He admitted that there were no signs of frostbite on any of the sampled birds. He had no thermometer to take the actual temperature of the necropsy sample birds; however, he believed that they had been dead for a long time. This indicated that the birds may have been exposed to some cold conditions at some point. He based his conclusion that the birds may have been exposed to adverse weather on the indication that most of the dead birds were on the sides of the trailer in the Live Receiving Report. He clarified that, at the time, he felt that this was the most likely cause of death, but the defence submits he was not exactly sure. He admitted that broken legs and wings are unavoidable during catching fowl for the transport process. He did a pre-slaughter inspection for two sister trailers from the same farm, noting some dead birds on the side of the trailer for each load. He did not do the ante-mortem inspection for T-23. He admitted that the cyanosis detected on the sample could be caused by either cold stress or heat stress.

263Dr. Doonan was the former manager of the Canadian Food Inspection Agency Transportation of Animals Program. He authored a report in relation to the live chicken that had been loaded into trailer T-23 after reviewing Dr. Gomulka's necropsy and provides confirmation that environmental stressors likely caused death. Dr. Doonan testified that the absence of any evidence indicating pre-existing disease or treatment for conditions at Gray Ridge Egg Farm is highly indicative that cold weather caused death on a day when temperatures bordered on what Maple Lodge Farms and the Industry standards considered extremely cold temperatures. Dr. Doonan also testified that it was significant that the spent hens were shipped in relatively good body condition, notwithstanding the fact that spent hens are, in general, more fragile than broiler chickens. These facts, in addition to the location of most of the dead birds – on the outside perimeter of the load – led Dr. Doonan to the conclusion that inadequate protection from cold weather killed these birds. Ultimately, Dr. Doonan testified that no other opinion is supported by the evidence.

264Mr. Folkes' highlighted the following factors, with respect to Dr. Doonan's opinion of the cause of high mortality on T-23:

• Higher mortality during transport (10.8%) as opposed to recorded barn mortality of 3% for the flock of origin.

• The symptoms found by Dr. Gomulka on his necropsy report, indicating that the birds were in good condition with poor feathering.

• No signs or history of infectious disease.

• The distribution of dead birds on the trailer was not random.

• The reduced capacity of spent hens to withstand the cumulative effects of transport stress, caused by the transportation process, of which the most important is thermal stress caused by air temperature extremes within the trailer.

• Cold weather.

• The location of most of the dead birds on the sides of the trailer.

265Based on the above, Dr. Doonan concluded that the high mortality on Trailer T-23 was consistent with inadequate protection from adverse weather during transport. He also made a comment concerning excessive waiting time, as a contributor to mortality; however, T-23 trailer was not held in lairage before being sent up for slaughter. It did however take time to unload and be readied for processing.

266Dr. Doonan agreed in cross-examination that the requirement to protect a load in adverse weather in the Regulation is at odds with the requirement in the same Regulation requiring adequate ventilation of the load. It is submitted that death from heat stress, in a fully-tarped load, in cold weather, does not indicate exposure to weather, but it is an indicator of exposure to microclimate which results from inadequate ventilation of the load.

267Dr. Appelt also gave expert evidence and his opinion as to the cause of death of the spent hens in T-23. Dr. Appelt agrees with Dr. Gomulka's finding that death is consistent with the climate found on the transport vehicle and the known temperatures at the farm at the time if inadequately protected. He also points to the significance of cold birds in the sample for necropsy. Dr. Appelt testified that the fact that the birds were cold is significant given the large amount of body surface of the birds uncovered by feathers. This severely impaired the spent hens' ability to maintain body temperatures suitable for life.

268He further testified that had the crates on the outside of the trailer been left empty, the spent hens would have been able to cope with the cold temperatures. When the crates are left empty, the incoming cold air mixes with warmer air that is already present in the inside of the trailer, rather than hitting the first row of birds. When the outside rows are not left empty, the birds in those crates are subjected to a direct stream of outside cold air. The distribution of dead birds found aligns with cold weather and the absence of a protective barrier of empty crates. Ultimately, the Crown contends that expert veterinarians Doonan and Appelt provide confirmatory expert opinions of the necropsy report; that Maple Lodge Farms caused the injury (death) and undue suffering of the spent hens as a result of inadequate protection from cold weather conditions on load T-23.

269Dr. Gomulka admitted that he had not read the academic literature concerning studies done in Western Canada that showed that there could be a differential of up to 60˚C. between external ambient temperature and the internal temperature on a fully-tarped load of chickens in cold weather.

270Dr. Appelt's report of July 26th, 2011 dealt with T-23, as well as T-07. He concluded that Dr. Gomulka's necropsy conclusions for T-23 were reasonable. His opinion was that the dead birds on T-23 did not survive transportation because they had been exposed to a climate incompatible with life. He agreed that they had suffered and died because of being unduly exposed to the weather. Once again, the report was based upon an examination of only the CFIA inspection forms and Dr. Gomulka's report. He did no further documentary review or investigation himself.

271The defence argues that as the first witness called in the trial, Dr. Appelt did not have the benefit of hearing evidence at trial concerning the Maple Lodge Standard Operating Procedures, or evidence of the driver for T-23, and thus was somehow disadvantaged by that. Mr. Folkes also argues that Dr. Ouckama, as the last witness and constant court presence, was in a better position to give fulsome expert evidence.

272This submission is fallacious due to all the assumptions made about the presence of a witness throughout any trial. It could well be argued that the more a witness learns through the trial, the more the potential is present to have their own evidence inadvertently tainted by not only what is said, but by the manner and substance of the examination and cross-examination. This is indeed what happened with the defence expert who became anticipatory, argumentative and lacked detachment. In many ways, the objective reliability of an expert witness fully informed by hypotheticals put to them, and fully cross-examined about the basis for their opinions, ought not to be subject to negative comment because they do not remain in the trial that took place over two years.

273Both of the main experts in this case submitted their reports in advance of trial, and they were discoverable by either side.

274Dr. Appelt noted that there were no pre-existing health concerns with Trailer T-23, on any of the documents which he examined. He mentioned that feed withdrawal, although mandatory, was a risk factor that may exacerbate the ability of the birds to thermo-regulate, by depriving the birds of a readily-available source of metabolic energy for heat production, accelerating their susceptibility to acute hypothermia. He found that 75 to 90% feather loss was significant.

275In the opinion on causation, Dr. Appelt acknowledged that the spent hens had known defects of feather cover, bone structure, and resulting decreased robustness, and significant feather loss. The birds had been removed from a climate-controlled laying house, and immersed for over 17 hours into an environment with inconsistent humidity and high and low temperature extremes. The birds had a significantly-reduced ability to thermo-regulate. In Dr. Appelt's view, the exposure to these conditions caused the death of a number of birds located in places on the trailer, where birds may have been exposed to high or low temperatures, high humidity, or combinations thereof, which were incompatible with life. It is submitted that he did not make any specific observation indicating that the birds were unduly exposed to cold weather, but did adopt the opinions of both Dr. Gomulka and Dr. Doonan as probable.

276Dr. Appelt did note that one of the reasons for his conclusions was that there was no transactional value for the spent hens, since they were a salvage product. He admitted that it is difficult to make a precise attribution of death to a specific occurrence in the process of handling and transportation; however, he relied upon the distribution of the dead birds on the sides of the vehicle in that it did not follow a random distribution throughout the load. The uneven location of the dead birds on the trailer pointed to adverse effects of cold weather for the load. He clarified that it was his conclusion that the high mortality on Trailer T-23 was correlated with the climate found on the transport vehicle, being the climate the birds were exposed to during transportation. The defence submits that it is notable that he did not clarify that the exposure was to the external climate, as opposed to the micro-climate within the fully-tarped load.

277Dr. Appelt was critical that there were no load monitoring devices in use by Maple Lodge Farms to ensure that the internal crate temperature for Trailer T-23 was within the comfort zone for these spent hens. He made reference to Section 7.1.12 of the Code of Practice, which suggests leaving rows of crates empty to prevent the birds being blasted with undiluted cold air in very cold temperatures, below -15˚C. He concurred with Dr. Ouckama's conclusions in her report that there would have been a build- up of heat and moisture within the fully-tarped load on Trailer T-23 because of restricted ventilation. This would have caused condensation, leading to wet birds along the side and bottom of the load, with an increased risk of hypothermia or chilling of these birds. It was his opinion that it was a very risky undertaking for Maple Lodge Farms to load T-23 in -15˚C. temperature. Dr. Appelt did not disagree with Dr. Ouckama's conclusion, in her report that the tarps may have been closed too tightly on the load, reducing air flow and producing condensation and wetness. Dr. Appelt used this as an indicator that the birds died because of environmental conditions. It is argued that he again did not make the key distinction whether these were within load conditions, caused by lack of ventilation, or exposure to the ambient weather.

278Dr. Appelt did refer to the article, "Chillin' Chickens" from December 2008 in which Dr. Klassen, of the University of Saskatchewan, found that in ambient temperatures of -28˚C., internal load temperatures can reach 30˚C. on a fully-tarped load because of the ability of the birds to generate heat. Dr. Klassen also noted that there would be cold pockets where the inside and outside temperatures are similar, i.e. at the venting point where air enters the load.

279Maple Lodge Farms outlined a number of what they submit are potential causes or explanations for high DOAs:

i. The fragility of the birds and loading stresses

Many of the hens' bones are fragile due to depleted calcium from egg production. They have few remaining feathers. They are removed form group or community cages through narrow doors.

ii. Metabolism of spent hens

Spent hens are said to have depressed metabolism and few fat reserves. It is a challenge for these birds to produce sufficient heat to regulate their own body temperature during transportation.

iii. Feed withdrawal

Feed is withdrawn at least six hours before the first shipment from the barn.

iv. Bird physiology

Many spent hens have a low calcium level in their blood, which Dr. Ouckama says can lead to sudden death by hypocalcaemia.

They have fear responses and a reduced ability to react to stresses.

v. Enhance vulnerability to exposure to extreme temperatures, especially if poorly feathered.

8. Legislative Interpretation

8.1 "Undue"

292The meaning of the word "undue" is not defined in either the statute or the associated regulations.

293Case decisions on the meaning of "undue" in the context of s. 143 of the Health of Animals Regulation have been conflicted by whether a strictly grammatical or a purposive approach is employed.

294The strictly grammatical approach is taken by Justice Lismer in the decision of R. v. Outlook Pork Ltd. at para. 124, where he stated that:

"It would appear that the Regulations under the Health Animal Act countenance some level of suffering or exposure to the weather as normal and probably reasonably unavoidable. "Undue" is the prohibited level. 'Undue', according to Thesaurus is defined as (exceeding a normal or reasonable limit), extreme, excessive, overmuch, extravagant, exorbitant, immoderate, inordinate".

This may be contrasted with the Federal Court of Appeal decision of Canada (Attorney General) v. Porcherie des Cedres Inc. A purposive approach is taken by the Federal Court of Appeal when Noel J.A. stated:

"From these definitions, it appears that only the Oxford Dictionary of Synonyms and Antonyms confines itself to defining the word "undue" as meaning "excessive".

"The applicant is asking that we reject the Tribunal's interpretation and adopt the meaning of the word "undue" which, in his opinion, is the most reasonable, namely: [TRANSLATION] "which is contrary to reason, rules or usage". The applicant characterizes the words "undue suffering" as meaning [TRANSLATION] "unnecessary suffering". This interpretation, he argues, is consistent with the objectives and scheme of the Health of Animals Act, S.C. 1990, c. 21.

"Based on these provisions, the applicant submits that the clear purpose of the Regulations is, inter alia, to protect the health of animals. Accordingly, he says, paragraph 138(2)(a) cannot be interpreted in such a way as to allow the transportation of suffering animals.

"In my opinion, the applicant's arguments are well-founded. It does not seem reasonable to me to interpret the words "undue" and "indu[e]" as meaning "excessive" and "excessif". In my opinion, a reasonable interpretation of "undue" and "indu[e]", in the context of the relevant legislation, can only lead to the conclusion that these words mean instead "undeserved", "unwarranted", "unjustified", "unmerited" or "inapproprié", "inopportun", "injustifié", "déraisonnable". This interpretation ensures that a suffering animal cannot be loaded and transported, since any such loading or transportation will cause "unjustified" and "unreasonable" suffering to the animal.

That case was decided in the context of s. 138(2)(a) of the Regulations, and not s. 143(1). However, the operating words were still "undue suffering" to the animals in question. The Federal Court of Appeal said that "undue", should NOT be interpreted as "excessive", but instead as "inappropriate, undeserved, unjustified, unmerited or unwarranted".

295Mr. Frost asks the Court to apply a purposive approach rather than a strict grammatical analysis to the section. Ultimately in submissions, Mr. Folkes conceded that the Court should not find that 'undue' here means extreme or excessive. He submits that "more than should have been" is sufficient for the Crown to establish 'undue suffering' or 'undue exposure'.

296I agree with the final submission on this point by both lawyers. Although the Federal Court of Appeal decision is not binding, it is persuasive, and this Court follows the approach of Canada (Attorney General) v. Porcherie des Cedres Inc., supra.

297The Crown submits nonetheless that on either interpretation employed, the evidence would support a finding that the transportation of both loads caused injury or 'undue suffering'. Mr. Folkes submits that finding could not be made beyond a reasonable doubt.

8.2 Likelihood

298The defendant submits that the Crown must do more than prove that the chickens unduly suffered. Mr. Folkes submits that actus reus does not just require undue suffering but that at some point of time, undue suffering from the weather conditions was 'likely'. He submits that the likelihood of undue suffering in a motor vehicle is an essential element to be proven.

299No authority was provided for this theory of statutory interpretation.

300The defendant, through Dr. Ouckama, advances the opinion that of thousands of loads of chickens received, a likely five to ten percent (5-10%) of birds suffering unduly would not be excessive.

301The Canadian government has set threshold limits or alarm bells for DOA or dead-on-arrivals of poultry before an inquiry is necessary at much lower levels (1-4%) than the defence expert's opinion. Dr. Ouckama's statistical opinion again is not based on any scientific or mathematical principles, and I do not give it any weight. She is not an expert in the area of the interpretation of this statute, nor is permitted to stray from her field of expertise in such a manner.

302The defendant submits it should also be able to rely on its successful experience in transporting, as evidence suggests that it is not a likely event to have issues as occurred with these two loads of chickens. Mr. Folkes expressly submitted that one cannot use statistics to say a high probability of success would absolve a company of liability, but that the evidence is not unimportant.

303The Crown argues that the use of the word 'likely' is not an invitation to discuss statistical probabilities. He submits that a purposive approach would negate that type of analysis by use of that word.

304The Crown relies on cases like Outlook Pork Ltd, supra, where the company had considerable experience in transporting pigs and followed the usual procedures, which were almost always successful. The judge in that case found that it is not sufficient to say that the company followed the usual practises and they usually worked out.

305Maple Lodge Farms can only be convicted if it was "likely" the chickens would be exposed to undue suffering during transportation. This speaks to the foreseeability of the high dead on arrival (DOA) load and the general suffering of the chickens.

306The question to be answered then, framed in another way, is whether or not Maple Lodge Farms transported the chickens on the dates in question in a way that they knew or ought to have known would cause unjustified or unwarranted suffering to the birds, by undue exposure to weather.

8.3 Transportation

307The terms "Transportation" or "Transport" are not defined in the Health of Animals Act.

308I have been unable to find any cases specifically dealing with these terms.

309A purposive reading to the statute would seem to be appropriate as this is a public welfare statute. Therefore, "transportation" should begin when animals are loaded and continue until offloading occurs from the means of transportation, in this case trailers T-07 and T-23 on the respective dates.

310Such an interpretation is consistent with a submission made by the Canadian Cattlemen's Association to the Canadian Food Inspection Agency, suggesting a definition as follows:

Definition of Transportation (transport)

For the purpose of these regulations, transportation starts at the time of loading the first animal at the point of origin, continues through sales and reloading at auction markets or assembly yards and ends after unloading the last animal at final destination.

311Of course, differences exist between the transportation of poultry and other animals, but it would be reasonable to consider transportation to commence at the time of loading the first animal at the point of origin, and to continue through the meat production plant until removed from the trailer and removed from the crates.

312Therefore, the regulations would continue to apply to the defendant from loading, the drive to Maple Lodge Farms, the weighing procedures, through both holding barns, and until final removal of the birds and shackling those fit for production.

313The Court recognizes however that the Crown must prove the particularized averment in the information.

9. Actus Reus

9.1 Actus Reus Argument

314The defendant argues that the Crown has failed to prove what caused the death of the close to 2,000 chickens loaded on Maple Lodge Farms flatbed trailers on Dec.30, 2008 and Feb.23, 2009 and transported to Maple Lodge Farms.

315Further, counsel for the defendant argues that it is reasonable to find that these chickens succumbed to disease or infirmary or to conditions within the trailers unrelated to the weather conditions.

316Crown counsel takes the position that by all accounts Maple Lodge Farms has been struggling with high percentages of DOA's that they admit correlates to the seasons. While Dr. Ouckama was unprepared to admit a causal relationship between the winter weather conditions and the high DOA's experienced in winter (especially in relation to loads of spent hens), her own research indicated that the most consistent risk parameters were temperature and transport time.

317The position of the defence with respect to trailer T-07 must be that a significant number of those birds did not get wet due to exposure to the weather, either during loading or as they were transported. By all accounts this would endanger the live chickens given the cold conditions that they were being transported in. It is the position of the Crown that the catchers report that the birds were not wet when caught, Inspector Pachai's observations, the statement that the driver made to him and the evidence of Dr. Gomulka fits together to paint a picture of wet birds being transported in trailer T- 07. Their evidence fits neatly with that of the Crown's expert witnesses. Even Dr. Ouckama had to admit that transporting broiler birds in that condition was dangerous to the health and welfare of those birds.

Q. Okay. And if the birds – if the feathers become wet, I understand that has an effect on the birds, is that right?

A. Yes. Wet feathers, very wet feathers, where it's actually wetted down towards the skin, do not insulate well and research has shown that if they're well wetted down that temperatures of six Centigrade will produce, or can produce death by hypothermia.

318The Crown submits that there seems to be little, if any, evidence to support her alternative speculations as to the cause of those 711 DOA's. Mr Frost says, "Sometimes the obvious answer is just that – obvious".

319The circumstances of transport relating to trailer T-23 (Count 34) are uncontested. In excess of 10% of the approximately 10,000 live chickens loaded in the early morning hours of February 23, 2009 died in transit. The distress that this load was in was recognized as soon as the trailer arrived at Maple Lodge Farms. The remaining chickens were moved ahead in the schedule for processing. This load was not alone as the other three loads from that farm that night suffered similarly. The internal investigations conducted by the defendant refer only to the fact that it was a very cold day as a possible cause of the problem.

320Dr. Ouckama notes in her report that the temperature with the wind chill was approximately -21C to -23C. Nevertheless, she insists that there was no reason for the driver or crew to flag the temperature condition as extreme. She relies upon the fact that there were no notations that the load was in distress (notwithstanding that it was moved up for processing because of the number of apparent DOA's). She indicated that she did not believe there was any advantage to slaughtering the trailer (T-23) in an earlier time slot. She expressed the opinion that leaving two entire side rows empty (as was suggested by the defendant 's internal investigation) would not have been "economically feasible". In short, she was unable to suggest any steps that would have prevented the deaths and Dr. Ouckama hypothesized that the condition of these spent hens may have been caused by "some other pathological processes".

321Mr. Frost submits that Dr. Ouckama's Report and Testimony is replete with a litany of other possible causes for the high number of DOA's in relation to both loads but with little evidence supporting those conjectures.

322For example, she suggested that the broiler birds of trailer T-07 may have succumbed to conditions "related to underlying compromised cardiac function associated with the birds' fast growth rates". In her testimony she elaborated that those birds are susceptible to "cardiac dysfunction and right-sided heart failure". In its last stages that metabolic condition is evidenced by abdominal oedema and referred to as ascites. The only evidence for this conjecture was the eight birds condemned during processing for abdominal oedema.

323She concedes that the number of condemnations was within the normal range, not excessive, although in her opinion it was higher than usual. The Crown argues that "the evidence to the contrary was simply overwhelming". By all accounts the flock was healthy. It was well cared for at the farm by an experienced farmer. The catchers reported no sudden deaths or heart attacks. The driver and the other Maple Lodge Farms employees who handled or monitored those birds were well trained to identify any common disease or disorder and to report it in accordance with their own SOP. Nothing was seen or reported. Nor did it figure into the defendant's own investigation report. It was agreed by Dr. Ouckama that the deaths occurred during transportation, a period of just over two (2) hours. Mr. Frost says rhetorically, "it seems unlikely that over 700 birds would coincidentally suffer fatal heart attacks during a relatively short trip". None of the Crown's experts gave any credence to this explanation including Dr. Gomulka who both performed the necropsy and was responsible for the condemnation report.

324Dr. Ouckama also advanced the hypothesis that the demise of both the broiler birds and spent hens was the result of Hyperthermia as opposed to Hypothermia. In other words, the temperature and humidity within the tarped trailers increased to the extent that death ensured due to over-tarping the loads. Of course, as Dr. Doonan pointed out, the over-tarping was a response by the driver to the climatic conditions. In any event it appears that this hypothesis is inconsistent with the observation of ice and snow within the trailer T-07 and the description of the dead birds as cold and wet. Dr. Ouckama was questioned as to why the other loads from that farm did not suffer equally from either ascites or over-tarping. Dr. Ouckama, after repetitive cross-examination admitted:

" If the wet - if one load was significantly wet, as if it was exposed to freezing rain or something like that, then there – that could explain the difference in mortality, yes."

325Finally, with respect to the spent hens, Dr.Ouckama suggested that they may have been victims of feed withdrawal (described as fatal hypocalcaemia in her Report).However, under cross-examination, she admitted that the feed withdrawal times were set by the processor (Maple Lodge Farms) and that, in any event, feed withdrawal was much shorter than scheduled due to the early processing of this distressed load. The only remaining evidence to support her hypothesis was that a box relating to feed interruption was ticked on the Flock Information Reporting Form. She was unable to say when or under what circumstance this item had been ticked or specifically what it signifies. She had never investigated that matter. There was no reference to this issue being significant in Maple Lodge Farms' Live Transportation Investigation Report.

326No witnesses were called from the farm to substantiate any of the theorized health issues in the flock.

327Maple Lodge Farms argues that there is no option to shut down in cold weather, or to refuse to load in conditions as in Counts 7 and 34.

328It is the hypothesis of Dr. Appelt and Dr. Doonan, expert witnesses for the Crown that Maple Lodge Farms should have shut down, or refused to load, during the moderately cold and snowy weather encountered on December 30th and 31st, 2008, for Trailer T-07, and in the colder weather encountered by Trailer T-23, on February 23rd, 2009. The Defendant's position is that this is not a practicable option unless weather conditions are extreme.

329There was substantial agreement in testimony from Dr. Appelt and Mark Finnimore, vice-president of operations of the Defendant, as well as from Dr. Ouckama, as to the very tight time frames and tight contractual and logistical targets within which the Defendant must operate. The Defendant purchases the broiler chickens from farmers who are part of the Canadian supply management system, which regulates chicken meat production, for broiler and cockerels. A separate supply management system for egg production by spent hens or fowl provides very short time frames for de-populating the barns at the end of the laying cycle.

330Dr. Ouckama and Mark Finnimore explained the difficulty which could be encountered if a processor, the size of Maple Lodge, accounting for approximately 24% to 30% of the Ontario broiler processing market, and 98 or 99% of the fowl processing market in Ontario, were to shut down in cold weather. The scheduling process for flocks of broiler and cockerel chickens starts several months before the chicks are placed in the producer's barn. At the time the chicks are placed, the producer and processor have a target date when the birds will reach the contractual purchase weight. Arrangements are made to deliver enough feed for the birds to last only to about 5 or 6 hours before the shipment. If target weights are missed, the producers may be penalized by their regulatory board, and processors will likely be required to reimburse the penalties, if they were incurred because of the processors' delay. In addition, the customers, which the processors supply, including fast-food chains, have very stringent weight requirements for the finished processed product, which can only be achieved, if flocks are shipped at target weights. The Defendant supplies major retail stores and restaurant chains, on a daily basis, with fresh chicken. Only a very small portion of the processed chicken market in Ontario consists of frozen product, so that there is no inventory flexibility for the processor to keep major customers supplied. There are also significant welfare concerns for the chickens if the barns are not depopulated on time.

331The Defendant submits that there is no supportable evidence, which would lead to a reasonable conclusion that Trailer T-23 was unduly exposed to the weather. It is more probable that the high mortality on Trailer T-23 was due to the causes which Dr. Ouckama described. These include chemical stressors, resulting from feed deprivation and inadequate ventilation within the load, arising from well-intended efforts by the driver to protect the birds from cold weather by over-tarping the load. The necropsy report, upon which the Crown's expert evidence is based, was cursory and did not fully deal with a number of "rule outs," which should have been addressed to try to confirm Dr. Gomulka's diagnosis. In light of Dr. Doonan's testimony, it is submitted that if the court were to find any wrongdoing with respect to Trailer T-23 on the part of the Defendant, it would be more appropriately due to inadequate ventilation of the load, resulting from the tarps being overly-tightened, inadvertently by the driver.

9.2 Actus Reus Conclusions

332The Crown has proven that adverse weather conditions were operative on both offence dates. The defence knew this, both projected in advance as well as encountered on each date.

333The Crown has proven that the defendant knew in advance of the low temperatures projected for both the farm areas and the yard at Maple Lodge Farms for each of the dates in question. The Crown has also established that the defendant knew of the adverse weather conditions on each of the dates, just prior to loading.

334I find beyond a reasonable doubt that on December 31, 2008, broilers were loaded into trailer T-07, and that the top row of crates was exposed to blowing snow for approximately five minutes before being covered by the tarp. As Mr. Donaldson told the Canadian Food Inspection Agency Inspector, some of the top chickens were wet on loading. Those birds would be further chilled by ventilation of outside frigid air while the vehicle was in motion.

335The absence of empty crates to insulate the birds reasonably could have contributed to their suffering.

336These birds at the bottom of the crates near the back were made wet by blowing snow, and the temperature was below freezing at some parts of the back to sustain the presence of ice and snow.

337The defendant's primary position is that there are no obvious gross signs of exposure to weather which would cause undue suffering, such as lack of frostbite on combs, and breast flesh not darkened. He contrasts the case in Manitoba about the pigs, in which a number of them had frost bite, were frozen, and could not be processed.

338The sample birds for necropsy were soaking wet, consistent with the photos of birds in T-07 still in crates. I find as a fact the samples taken for necropsy were in their original states as off-loaded, and were not interfered with by Maple Lodge Farms staff. These birds, and others who were made wet by exposure to the weather and hyperthermic changes brought on by temperature deferential related to the weather did suffer unduly by undue exposure to the weather, and causative sequelae to that exposure.

339The Court accepts the opinion of Dr. Appelt that the birds in both loads of T-07 and T-23, on the two different dates, were exposed to a microclimate that was not compatible with life due to a combination of, interior within the load, and exterior outside the load, factors such as temperature and humidity.

340The flock of broilers was noted in the Flock Sheets as healthy. I accept the opinion evidence of Dr. Appelt, Dr. Doonan and Dr. Gomulka that these birds died, and others likely suffered by undue exposure to weather. I find Dr. Ouckama's opinion as to likely alternate causes of death to be speculative, and a reasonable doubt does not arise based on the totality of evidence. If biological failures were at play, the undue exposure to weather may be a contributory factor to death.

341The Crown submits the company agenda to load birds, transport them and process them superseded humane transportation.

342The Court adopts the Crown argument as summarized earlier.

343While recognizing the difficulty presented in supply-chain management, the evidence unfortunately supports the inference that economic factors tended to be placed above acts which were known or ought to have been known, to reduce the effects of undue exposure to weather such as leaving a buffer of empty crates.

344I am satisfied on each of the two counts tht the Crown has proven the prohibited acts beyond a reasonable doubt.

10. Corporate Liability

345The Health of Animals Act itself provides for potential liability for corporations, and any employee or agent of the defendant, in Section 72 of the Act:

Section 72 of the Health of Animals Act provides:

In any prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee or agent of the accused, whether or not the employee or agent is identified or has been prosecuted for the offence, unless the accused establishes that

(a) the offence was committed without the knowledge or consent of the accused; and

(b) the accused exercised all due diligence to prevent the commission of the offence.

346The issue of any lack of knowledge or consent of the defendant has not been raised in this trial. The defence of due diligence is still open to the defendant where the Crown proves the actus reus.

11. Due Diligence-The Principles

11.1 General

347The test in relation to due diligence is objective. As the Crown properly set out, the defendant must establish that they took all reasonable steps to avoid the event in question, and what is considered reasonable is what a reasonable person would have done in the circumstances.

In R. v. Barre, Justice Sundhu set out a helpful summary of the older case law on due diligence:

A useful summary of the law is contained in the case of R. v. Placer Developments, 13 C.E.L.R. 42, 12 December 1983, Territorial Court of Yukon, Stuart T.C.J.:

No one can hide behind commonly accepted standards of care if, in the circumstances, due diligence warrants a higher level of care. Reasonable care implies a scale of caring. A variable standard of care ensures the requisite flexibility to raise or lower the requirements of care in accord with the special circumstances of each case. The care warranted in each case is principally governed by the gravity of potential harm, the available alternatives, the likelihood of harm, the skill required and the extent the accused could control the causal elements of the offence. (R. v. Gonder (1982), 1981 CanLII 3207 (YK TC), 62 C.C.C. (2d) 326 at 332.)

Gravity of potential harm - The greater the potential for substantial injury, the greater the degree of care required. (R. v. Panarctic Oils (1983), 1982 CanLII 4944 (NWT TC), 12 C.E.L.R. 29 at 37; Canada Tungsten Mining Corporation Limited v. R. (1976), 1 Fisheries Pollution Report 75 at 79.)

Alternatives - Reasonableness of care is often best measured by comparing what was done against what could have been done. The reasonable alternatives the accused knew or ought to have known were available, provide a primary measure of due diligence. To successfully plead the defence of reasonable care, the accused must establish on a balance of probabilities that no feasible alternatives could be employed to avoid or minimize harm. (R. v. Gonder, supra at 333.)

Likelihood of Harm - The greater the likelihood of harm, the higher duty of care. What particular facts heighten or diminish the likelihood of an accident will vary in each case. Assessment of the likelihood of harm is based on what an appropriately qualified expert might reasonably predict.

Degree of Skill Expected -- Anyone choosing to become involved in activities posing a danger to the public, or to the environment, assumes an obligation to take whatever measures may be necessary to prevent harm. The costs of preventive measures are significantly less important in assessing the duty of care imposed upon persons who choose to undertake dangerous activities. (Sweet v. Parsley, [1970] A.C. 132 at 163.)

Matters beyond control of accused - No accused can be held accountable for unforeseeable accidents and for activities beyond the reach of what they might reasonably be expected to influence or control. (Reynolds v. G.H. Austin & Sons Ltd., [1951] 2 K.B. 135 at 149.)

348The question of acting with all reasonable care is only in relation to the specific incident that is the subject matter of the proceedings. Justice Goodman in R. v. Rio Algom Ltd. commented of the restriction of the defence of due diligence to circumstances which caused the incidents which are the subject of the charges:

"…the trial Judge appears to have been satisfied that the respondent, in the operation of the mine where the accident took place, has kept safety foremost in its corporate mind at all times and has a good inspection and reporting system in effect to accomplish this purpose. Those are relevant facts to be kept in mind with respect to sentence. They do not, however, assist the respondent to avoid responsibility for the lack of care on its part which resulted in the unfortunate fatal accident. The respondent has failed to prove it was not negligent with respect to the circumstances which caused the fatal accident." (emphasis added)

349The Crown is not required to prove negligence, and thus the Crown asserts that he is not required to prove the precise cause of the prohibited act before it can engage the defence of due diligence. In the decision of the Ontario Court of Appeal in R. v. Petro Canada, the Court states:

"That being said, it must be emphasized that to invoke the defence successfully in such circumstances, the accused must show that it took all reasonable care to avoid any foreseeable cause.

"In my view, the ITT Industries of Canada Ltd. case, supra, is not inconsistent with this approach. In that case the accused was charged with permitting the discharge of a contaminant. The exact cause of the discharge was undetermined. The accused attempted unsuccessfully to establish due diligence simply by showing that it had purchased and installed the best equipment and that the recording devices on this equipment showed no breakdown.

"In denying leave to appeal, Carthy J.A. noted that the latter evidence leads nowhere once a discharge is established. He went on to indicate that the due diligence defence was flawed in this case by the failure to demonstrate what happened, why, and what steps were taken to prevent the occurrence in the functioning of the plant on that day. In saying this Carthy J.A. was not making proof of the precise cause of the discharge a legal prerequisite to the due diligence defence. He is simply saying that the defendant must go beyond the purchase and installation of the best equipment to show what steps were taken to prevent the discharge on that day and that these steps constitute reasonable care, something which may be more easily demonstrated if it can be shown how the discharge occurred.

350Therefore the Crown submits that the defendant, to succeed in the due diligence defence, would have to establish how the incident occurred as a part of showing that all reasonable steps had been taken to prevent it. Mr. Frost says that such an explanation is peculiarly within the knowledge and ability of the regulated accused:

"…the trial judge was left with no evidence of the particulars of how the incident occurred and was thus unable to consider what reasonable steps might have been taken to prevent it. … The applicant's defence of due diligence at trial was flawed by the unexplained failure to demonstrate what happened, why and what steps were taken to prevent the occurrence in the functioning of the plant on that day.

11.2 Standard of Care

351The Ontario Court of Appeal considered the nature of the due diligence defence in R. v. Rio Algom Limited. The court found that the respondent, in operating a mine, where a fatal accident took place, kept safety foremost in its corporate mind at all times. It had a good inspection and reporting system in effect to accomplish that purpose. These facts did not assist in avoiding responsibility for the lack of care on the part of the Defendant, which resulted in an unfortunate fatal accident. The Respondent did not prove that it was not negligent, with respect to the particular circumstances, which caused the fatal accident.

352As Judge Stuart indicated, reasonable care implies a scale of caring. A variable standard of care ensures the requisite flexibility to raise or lower the requirements of care in accord with the special circumstances of each case.

11.3 Reasonable Foreseeability

353The main issue when analyzing whether the due diligence defence has been established is reasonable foreseeability. Courts have debated exactly to what foreseeability relates. At times, courts have determined "reasonable" using the benefit of hindsight, which made establishing that the accused was duly diligent extremely difficult.

354In R. v. Imperial Oil Ltd., the majority of the British Columbia Court of Appeal rejected the defence of due diligence when it found that a company failed to exercise reasonable care even though the company tested its effluent more frequently than required by permit, relied on the supplier's Material Safety Data Sheets that indicated the substance was not toxic to fish and was unable to locate any information about the substance, since none was yet published. The Court determined that because subsequent research revealed that the product contained two chemicals that the company's separator was unable to remove from the effluent, the onus was on the accused to independently test the toxicity of the substance as well as the separator's ability to remove the chemicals from the effluent. In the majority's opinion, these specific actions were necessary to establish the defence of due diligence, not the company's general environmental safety system.

355The dissenting judge in Imperial Oil Ltd. disagreed in finding that the company had done all that it reasonably could in the circumstances by having procedures to guard against risks, conducting inspections of the separator, providing MSDSs and implementing spill reporting procedures. In the opinion of the dissent, the majority's position was essentially "applying a standard of perfection" in concluding that the company did not exercise due diligence despite this evidence.

356However, subsequent interpretation has reset the threshold so that foreseeability is based on reasonableness at the time the offence occurred. In R v. MacMillan Bloedel Ltd., the Court reviewed a decision relating to an unforeseen microbiological process that caused pipes to corrode, as a result of digging around the pipes while inspecting a suspected leak, and which resulted in a leak of a toxic substance into a creek. At the time of the alleged offence, MacMillan Bloedel Ltd. recognized a risk of leakage due to aging of the pipes, but considered pipe replacement a low priority as a recent inspection showed the pipes were in sound condition. At the trial level, the judge convicted them, even though the judge determined that the defendant honestly believed the pipes were in sound condition, on the basis that they knew it would have to replace the pipes at some point and failed to provide evidence of having such a plan. The summary conviction appeals judge overturned the decision on the basis that it was irrelevant that the defendant had not established plans to replace the aging pipes because the leakage was caused by an unforeseen microbiological process rather than aging of the pipes.

357The majority stated that "the focus of foreseeability is on the actus reus of the offence charged, and not the general foreseeability of the environmental contamination or the foreseeability of the specific cause." The majority determined that it is irrational to say that the accused may escape liability for an event that was not reasonably foreseeable only by taking all reasonable steps to avoid the unforeseen event. It held that "the fact that the leak occurred as a result of an unforeseeable cause is determinative." The majority emphasized that the focus of foreseeability is not the cause of the leak but rather the occurrence of the particular event giving rise to the charge, although the majority later indicated that these may be one in the same if "the chain of unforeseeability from the cause of the event to the event itself is one and indivisible."

358The above case reasserts that the due diligence defence requires meeting a threshold that is reasonable to attain and does not require a standard of perfection. Decisions after MacMillan Bloedel have followed the "middle ground and practical approach" to due diligence.

359In the decision of R. v. Bata Industries Ltd., Judge Ormston, as he then was, set out the following elements to assess whether the defendant acted reasonably:

(i) the preventative system in place;

(ii) the efforts made to address the problem;

(iii) the promptness of the response;

(iv) the industry standards;

(v) matters beyond the control of the accused;

(vi) the foreseeability of the incident.

After reviewing these elements, the court held that the company acted with due diligence and showed reasonable care by implementing a preventative road maintenance system and inspection schedule.

11.4 Other Principles

360Due diligence does not excuse ignorance of the law, rather it relates to fulfilling a duty of care: see R. v. Motis.

361Due diligence depends on the facts of each case, the particular industry or activity involved including the operation, its size, location, inherent risks, likelihood of harm, how much control the defendant had over the events, degree of knowledge expected of the defendant, and the damage and degree of harm involved.

362Due diligence considers whether the defendant acted according to industry standards, relevant legislation, licenses, training programs, internal and external audits, risk assessments, the availability of alternative solutions to prevent the occurrence, the defendant's promptness in responding to the problem, and efforts to mitigate and responsiveness to suggestions by regulatory officials.

363Due diligence requires a person or corporation to exercise reasonable care. Reasonable care does not mean superhuman effort.

364A defendant must take all reasonable steps to avoid harm, but this is not the same as all conceivable steps. Rather, the defendant is only required to take those steps that could be reasonably expected in the circumstances.

365Reasonable care requires staying abreast of current technological and industry standards and hiring consultants when necessary.

366Reasonable care requires maintaining awareness of changing conditions and responding in a timely and appropriate manner so as to mitigate the foreseeable harm.

367The reasonable care warranted in each case is principally governed by:

(a) the gravity of potential harm - No one can hide behind commonly accepted standards of care if, in the circumstances, due diligence warrants a higher level of care. The greater the potential for substantial injury, the greater the degree of care required;

(b) the available alternatives - The reasonable alternatives the accused knew or ought to have known were available, provide a primary measure of due diligence. To successfully plead the defence of reasonable care, the defendant must establish on a balance of probabilities that no feasible alternatives could be employed to avoid or minimize harm (see Barre);

(c) the likelihood of harm - The greater the likelihood of harm, the higher duty of care required. What particular facts heighten or diminish the likelihood of an accident will vary in each case. Assessment of the likelihood of harm is based on what an appropriately qualified expert might reasonably predict;

(d) the degree of skill required and the extent the defendant could control the causal elements of the offence. Anyone choosing to become involved in activities posing a danger to the public, or to the environment, assumes an obligation to take whatever measures may be necessary to prevent harm. The costs of preventive measures are significantly less important in assessing the duty of care imposed upon persons who choose to undertake dangerous activities; and

(e) the extent the defendant could control the causal elements of the offence. No accused can be held accountable for unforeseeable accidents and for activities beyond the reach of what they might reasonably be expected to influence or control.

368Recent cases on the issue of due diligence and reasonable care appear to reflect a more practical and evidence-based analysis, rather than an unrealistic and speculative approach. While more judicial insight has been gained over the years regarding what is required to establish a defence of due diligence, each decision will depend on the facts of the case involved.

12. Due Diligence-The Principles Applied

369I have conveniently categorized some of the arguments made by both Crown and Defence, as to whether Maple Lodge Farms has established, on a balance of probabilities, that they were duly diligent in preventing the prohibited act from occurring on each of the two dates.

370The defendant submits that the case comes down to whether Maple Lodge Farms ignored red flags they should have paid attention to, to avoid these two loads getting into trouble.

371The Crown distinguishes the application of this defence between the two counts. He asserts that in relation to count 7 (Trailer T-07), the Crown has been able to establish a series of negligent acts relating directly to that load of live broiler birds. He argues that no special efforts were brought to bear to relieve the suffering of those live birds.

372The Defence argues that Maple Lodge Farms did everything in its power to avoid the ultimate result, including developing and implementing a Standard Operating Procedure, training, studying the issue, investigating lairage deaths, cooperating with the Canadian Food Inspection Agency, barn monitoring, and moving up slaughter loads if the chickens are distressed.

373Regarding count 34(Trailer T-23), the Crown submits that no special or reasonable steps were taken to prevent injury, death and undue suffering to the spent hens.

374The Defence submits that the fragility of the fowl is a factor beyond their control, and that the greater good is achieved by transporting these birds rather than leaving them to certain death, or rendering. Again, the defendant asserts it took all reasonable steps to avoid the result.

12.1 Gravity of Harm

375In applying the variable standard of care to the circumstances in counts 7 and 34, the potential harm in each of the counts is identical, the deaths and undue suffering of literally hundreds of birds.

376The greater the potential for substantial injury, the greater the degree of care required. Given the industry standard of a comfort zone range of temperature for the humane transportation of chickens, the defendant had a duty of care to ensure their vehicles and methods met the industry standard.

377In count 7, the driver did not completely follow the Standard Operating Procedures. Some birds were wet on transport. He drove directly to Maple Lodge Farms, a trip which exceeded two hours, and he did not make the stop, rest and check as mandated in the SOP. This failure was reckless as to whether harm would be caused due to the weather conditions of that day. Drivers know or ought to know that tarping is an inexact method of protection, and requires strict adherence to procedures designed to reduce harm.

378The potential for substantial harm was exacerbated by the failure to properly monitor the load in lairage. Undue suffering likely resulted.

379Mr. Melo, the driver in count 34, adverted to the potential for harm, and set out regardless.

12.2 Industry Standards

380Industry standards are an important, but not determinative, consideration. See R. v. Bata Industries Ltd.

381The defendant relied upon the existing equipment available in the industry as a reasonable excuse for its failures to protect the birds and monitor the temperatures in the load.

382The Court has heard that other provinces and other areas in the world have vehicles which are designed to reduce the potential for mortalities, especially in inclement weather.

383Maple Lodge Farms avers that such equipment was not "on the market at that time". Climate controlled vehicles are used, however, in the divisions of Maple Lodge Farms dealing with chicks. They are undoubtedly more expensive, because far less adult birds could be transported in them. One might query why the largest processor of chicken in the country could not research better modes of transportation for poultry.

384A brief article published in the Livestock Welfare Insights in December 2008 and published the same month as count 7 and well before count 34, examined transporting chickens safely in Canada's climate, which the author said was no easy task. It reported on research being done at the University of Saskatchewan to improve truck design and ventilation. Engineers had designed a test trailer with heat and ventilation that can warm up the air in the trailer, and regulate ventilation so as to maintain more uniform appropriate temperature and moisture levels. This is done with inlets and fans in proper locations throughout the trailer.

385Maple Lodge Farms, since the time of the charges, has made two major changes to its transportation fleet: (i) the defendant now has trailers with flexible but solid roofing to protect loads from the top, and leverage to adjust ventilation; and (ii) the defendant has moved to "dolly" modules to reduce stress in the catching and crating of spent hens-these dollies roll right into the narrow aisles in poultry barns, and reduce handling of the birds.

386The defendant did not have a method in place to accurately measure load temperature on their trailers. Dr. Appelt is familiar with others in the industry that have such equipment. Temperature in-load is obviously critical, particularly in weather extremes. Monitoring is lip service only without accuracy in this area.

387Interestingly, in December 2008, research was published concerning assessment of cold temperature limits by placement of a sensor in the proventriculous (stomach) of the birds, to record an accurate inner temperature of the birds in varying environmental temperatures.

388Maple Lodge Farms has a leadership role in the industry, and reasonable steps to reduce the likelihood of harm includes going beyond the purchase of equipment,

"Carthy J.A…. is simply saying that the defendant must go beyond the purchase and installation of the best equipment to show what steps were taken to prevent [the discharge] on that day and that these steps constitute reasonable care". (Petro Canada, supra. O.C.A.)

389In this case, the Guidelines for Transporting Poultry, Appendix C, is a very good indicator of industry standards in the field of loading and transporting poultry. Maple Lodge Farms was a contributor to their development apparently, yet the live-haul supervisor was not aware of them, and did not give them out or train staff with them. I find that omission as the absence of a reasonable step the defendant ought to have taken to prevent harm.

390Another governing Code in the industry, the Recommended Code of Practice for the Care and Handling of Pullets, Layers and Spent Fowl, was not followed in the loading of the spent hens without proper placement of empty crates to reduce undue exposure to weather. That Code was the product of various industry representatives Canada-wide, including a representative from Poultry Live Haul Transporters.

12.3 Negligence and Likelihood of Harm

391The Crown particularized what he submits is a series of negligent acts in relation to Count 7 as the following:

The series of negligent acts in relation to count 7 (trailer T-07) include:

i. Allowing dry birds in the barn to get wet either while loading or during transportation.

ii. Failing to monitor the load hourly as required by their own SOP and Industry Standards.

iii. Allowing the birds to wait too long before processing them.

iv. Allowing the birds to be transported and to wait in temperatures well below those recommended by Industry Standards.

v. Relying (apparently for many years right until trial) upon faulty and inaccurate equipment to monitor the temperature of the loads in the holding area (barn) at MLF.

392The defendant argues that their normal procedures (SOP) and training were sufficient to establish that all due care was taken.

393In the expert reports of the Canadian Food Inspection Agency veterinarians, and in the course of cross-examination at trial, several areas were identified where Maple Lodge Farms was criticized for not taking certain actions, which would have allegedly addressed the foreseeable risks, which faced T-07 and T-11, in the humane transportation process. The Defendant submits that each and every one of these factors had been taken into consideration, and the Defendant's judgment had been exercised based upon either experience or science, to forego that particular course of action. The only exception was the failure to monitor T-07 in its holding barn, from approximately 4:00 a.m. until 7:00 a.m.. The defence position is that the prosecution has indicated that it expects a standard of absolute perfection from Maple Lodge Farms, rather than a standard of reasonable conduct in the circumstances, as required by the law.

a. Failure to install monitoring devices within the loads was a criticism for the Defendant's conduct in both counts. It is clear from the evidence of Mark Finnimore and other evidence that these devices had been tried by the Defendant and found unworkable and unreliable.

b. Failure to leave the bottom, side or top rows empty is a criticism common to both counts. Ben Durose and Mark Finnimore indicated that these practices had been tried, but discarded as being ineffective. Dr. Ouckama's opinion is that that leaving top rows of crates empty was far less effective than unfurling tarps to protect birds from moist environmental conditions. In addition, if bottom and side rows were left empty to try to create an "air mixing zone," within a tarped load of chickens, the biomass of the load would be considerably reduced, so that the load may not be able to generate sufficient heat to maintain a comfort zone within the trailer for the birds in the full crates. It is asserted that Maple Lodge Farms had both experiential and scientific reasons to form an honest belief that this practice was ineffective and likely destructive. Mr. Folkes says that the Crown led no evidence to demonstrate that the judgment of Maple Lodge Farms in this regard was incorrect, other than Dr. Appelt's opinion, which was not based on his experience in the field. However, in the Document Brief filed as an exhibit in this trial, the Recommended Code of Practice for the Care and Handling of Pullets, Layers and Spent Fowl, which Dr. Doonan researched along with nineteen other expert representatives, agreed that "when loading crates in extreme cold, it is advisable to leave the bottom outside rows empty to reduce possible exposure. Cold air enters the trailer at the bottom, outside area."

c. Pick up of wet birds is an issue pursued by the Crown in cross-examination of both driver witnesses and the executives of Maple Lodge Farms. With respect to the birds on T-23, the issue of wetness was not in evidence from Dr. Gomulka's necropsy report. With respect to T-07, the Defendant submits that there is no conclusive evidence that the birds on the load became wet during the transportation process. Rather, the most probable cause of the wetness, detected on Dr. Gomulka's necropsy sample, was soaking, after the birds were left on a wet floor in the live-receiving area, where employees were quickly disposing of a pile of dead carcasses and hosing down the facility to sanitize it in preparation for the next load. Both drivers were adamant that both their instructions and their practice was never to pick up wet birds. They were both aware of instances where wet birds had been left behind in the barn.

d. Failure to call dispatch for instructions to take extraordinary measures is a theme developed in the Crown's final submissions. It is clear, from the evidence of both drivers, that they saw no reason for concern, since they had successfully loaded in these conditions previously. They saw no reason to call dispatch. The instructions in the Standard Operating Procedures, and on their driver's sheets, seemed sufficient. The weather had been taken into account, in planning the load, by Ben Durose, and in calculating crate density. They had standard tarping procedures to protect the load, which they employed. Both loads appeared to be generating appropriate heat, to keep warm, since the drivers observed them to be "steaming," and the loads became warm enough that the drivers did not wear overcoats while loading. Crate densities, which balanced the need for ventilation against the ability of the load to generate heat, had been carefully determined, after Dr. Ouckama's study of chickens hauled by Maple Lodge Farms. The drivers and the transportation office staff knew that if there were problematic loads, they could expect an investigation, with possible disciplinary results, to ensure their diligent adherence to the Standard Operating Procedures. In cross-examination, Mr. Durose was directed to a number of problematic loads of spent hens, with high DOA's, in cold weather, in February of 2007. The load of hens in issue, in count 34, was hauled at the end of February of 2009, more than two years later. At the rate of 15 to 20 loads of spent hens per week, processed by Maple Lodge, this is 6,000 to 8,000 loads later. The statistical probability of a repetition of the February 2007 problems with cold-weather loading is extremely low.

e. Failure to improve after the February 2007 "disastrous" loads was another area pursued by the Crown. It was clarified that, within a few months after the February 2007 problem, Maple Lodge Farms started to investigate and plan for converting from the crate-haulage system to a dolly-hauling system. This took a number of years to plan and implement, and was, in fact, implemented for spent hens, processed at Maple Lodge, in February of 2012. The dollies eliminated several handling steps, and considerably lowered the stress on these birds during transport. He submits the evidence indicates that Maple Lodge Farms was diligent in trying to make its transport systems more humane, between 2007 and 2009.

f. Preferring pursuit of profit over bird welfare is an issue pursued vigorously by the Crown in final submissions, and in its opening statement. It is respectfully submitted that all evidence at the trial, and in the exhibits, demonstrates exactly the contrary. It is obvious that it is the most profitable choice for Maple Lodge Farms to have as many loads arrive in as good condition as possible. This is for the economic reasons that it owns the broilers and cockerels, as soon as they are loaded, and loses the cost of the dead birds, as well as the margin expected on the processed product. Its major customers conduct animal welfare audits. Mark Finnimore referred to the huge investment that was ongoing at Maple Lodge Farms for the conversion to the dolly system. An entirely new live-receiving room for broilers was implemented, after these charges were laid, but was several years in the planning, even before the events took place giving rise to these charges. Although the spent hens had no transactional purchase price, they had a value to Maple Lodge Farms, in terms of investment in the humane transportation process by the time they reached the plant, together with the loss of margin on the deli products processed from these birds, which are sold worldwide. In addition, Maple Lodge Farms strove to avoid the cost of administrative monetary penalties and a conflicting relationship with CFIA, which would arise through haphazard transportation. Equal emphasis was placed on enforcing Standard Operating Procedures for both broilers and spent hens. The Crown cites the scraping of snow and ice from trailers on December 31st as a problem, but Mr. Finnimore testified that there was a humane reason to properly adjust the electronic stunning equipment, which was an essential part of the humane slaughtering process.

394The applicable principles of the due diligence defence discussed earlier are clear that perfection is not the standard, and this Court applies those accepted principles in evaluating this defence.

12.3.1 Standard Operating Procedures

395Did the Standard Operating Procedures, which were in place on December 30/31st, 2008 and February 23rd, 2009, constitute a proper system to prevent undue suffering of chickens to undue exposure to weather on a motor vehicle, or the defence questions, did the Defendant have an honest belief that the Standard Operating Procedures were effective?

396Ben Durose testified that Maple Lodge Farms has been in the process of developing Standard Operating Procedures, since the mid-1980's. Humane transportation is one of the primary objectives. The Defendant is subject to welfare audits from some of its primary customers. The Standard Operating Procedures are based upon the Humane Codes of Practice, developed by industry associations, in consultation with the Canadian Food Inspection Agency. Mark Finnimore, Vice-President of Operations at Maple Lodge Farms testified that it is the goal of Maple Lodge Farms to have the highest standards in the industry. When first employed at Maple Lodge Farms, having worked with a number of other processors in the industry for many years, he was impressed by the depth and detail of the Standard Operating Procedures. In his words, it is the "heart and soul of the company" for its employees to follow the strict protocols in the Standard Operating Procedures.

397Maple Lodge Farms was involved in the development of Guidelines for Transporting Poultry developed by the Canadian Food Inspection Agency, Government of Ontario, University of Guelph, Agri-Food and Rural Link, Poultry Industry Council, Ontario Farm Animal Council, Association of Ontario Chicken Processors, Egg Farmers Ontario, Chicken Farmers of Ontario, and other notable organizations.

398The above Guidelines, which include environmental considerations and recommended Code of Practice, were in place in the industry prior to the offence dates.

399The live-haul supervisor, in charge of training employees, was not aware of the guidelines, nor did he provide this simple form to drivers and other Maple Lodge Farms employees to assist the exercise of their decision making as to whether to transport birds.

400Dr. Ouckama stated that the Defendant has been actively involved in research, in investigating and finding improvements in bird welfare during catching, loading, transportation, and within holding facilities. These are said to have resulted in improvements in handling, loading, environmental holding conditions, emergency disease response, emergency accident response and euthanasia. They were developed in conjunction with a number of universities, and the Ontario Ministry of Agriculture, Food and Rural Affairs. Dr. Ouckama herself contributes to studies to improve the Standard Operating Procedures, to minimize DOA's on all loads of chickens, in all seasons. She, and other consultants, have been engaged to improve conditions within the holding barns, where the evidence at trial has shown that all loads of chicken are supposed to be monitored on a regular basis. Thus, the defence submits it is certainly the honestly-held belief of Maple Lodge Farms that it has the industry's best Standard Operating Procedures for poultry transportation.

401It is laudable to have a SOP to address concerns for poultry transportation, but the defendant has a duty to follow them, which the Crown has demonstrated was lacking in some respect(s) by their agents on each of the two counts.

402The company itself expects investigations if the loads had problematically high DOA's. The Canadian Food Inspection Agency is a constant presence at their facility.

403There is a daily conference call, amongst Maple Lodge personnel involved with transportation of the birds where problematic loads were discussed with one of the company owners, and the staff, who had the appropriate areas of authority. The company set DOA targets, based upon five year averages, at .33%, and strives for continuous improvement. Mark Finnimore discussed thoroughly how the company benchmarks its results against those of other significant Canadian processors on a quarterly basis, through the Intelimetrics Service. The defendant said they had a 98.6% record of success, which, provided it with confidence that it had appropriate procedures in place, to deal with foreseeable risks, associated with transportation of live chickens.

404Mr. Folkes relied on the fact that Ben Durose reviewed each driver sheet each day, to determine if modifications were required to the procedures or if any investigation was required, to demonstrate that reasonable steps were taken. The Court has seen the lack of action and solutions or modifications to procedures that Mr. Durose implemented in the Live Transportation Investigation Reports which he filed regarding these two incidents. Accordingly, some scepticism is justified as to whether any reasonable steps were taken prior to these occurrences to prevent the likelihood of harm, enough to tip the balance on the burden resting on the defence to prove due diligence.

405The Standard Operating Procedures is a valuable document for Maple Lodge Farms, but as Justice of the Peace Conacher opined in the decision of Aecon Construction "nevertheless, what may appear to be the best programme on paper or in concept must be assessed in light of how it is carried out and enforced in the specific circumstances of each case."

12.3.2 Fragility of the Birds

406The Defendant is dealing with transportation of a live animal, where many factors are in play which will affect their welfare. The causes of mortality during transport are very complex, as shown by expert evidence and some academic literature. Mr. Folkes submits that regrettably, history has shown that there will always be a few high DOA loads in all seasons, regardless of the strict application of the Standard Operating Procedures. Even the detailed procedures of Maple Lodge Farms cannot guarantee success when dealing with these types of complex biological entities. These uncertainties present a very difficult, if not impossible, planning exercise for live-haul and catching staff to accurately assess all risks, and to enable identification and prevention of all factors, which may cause loads to result in unacceptably high DOA percentages.

407Perfection is not demanded, but there is a duty of care, and reasonable steps must be taken to prevent the prohibited act.

12.3.3 History of Other Loads

408The defendant relies also on historical success in other loads transported. On December 31st, 2008, other loads of broiler cockerels were transported, presumably under the same weather conditions, and using the same Standard Operating Procedures, by Maple Lodge transport personnel. Mr. Folkes prepared a chart of comparison between the relevant information in the Exhibits, comparing the holding times for all of the loads of broiler cockerels slaughtered that day, and the mortality of each load. The only mortality issues that day were with T-07 and its sister load T-11, from the same barn. Other loads were successful.

Trailer	Holding Time (in hrs.)	DOA's from Tab H
T-14 (Maroudas)	4.14	32
T-15 (Maroudas)	3.6	27
T-09 (Maroudas)	1.04	21
T-02 (Faux)	3.25	45
T-52 (Faux)	3.74	07
T-13 (Leyen)	4.48	67
T-08 (Leyen)	3.81	95
T-03 (Leyen)	.95	45
T-07 (Leyen)	5.36	711
T-11 (Leyen)	3.25	146

409On February 23rd, 2009, other loads of broiler leghorns were transported and slaughtered by Maple Lodge Farms. These loads came from south-central Ohio, on a 12-hour road trip, before arriving at the Maple Lodge Farms plant. They were held for between 3 and 10½ hours before slaughter. The DOA's on these loads ranged from approximately 1% to 1.5%. These loads were hauled by independent transporters, who the defendant submits were required to use the same Maple Lodge Farms Standard Operating Procedures, as were employed for T-23.

410In its final submissions, and in cross-examination of Dr. Ouckama, the Crown has referred to loads of chicken, which the Defendant shipped in February of 2011. The defence position is that this evidence has no relevance or weight, in the analysis for T-23 and T-07. The questions were put to Dr. Ouckama to test the weight and credibility of her evidence only. The time is so far remote from the dates of the alleged offences that they cannot be relied upon in any due diligence arguments, which must relate to the time and place in question, for the alleged offences only.

411It is said that it was reasonable to act as the drivers did on each date because they had loaded in similar conditions in the past, with success. Had they run into unusual conditions, their instructions were to call dispatch, and, if necessary, to speak to Ben Durose, who was available on a 24/7 basis. They were aware of their task to balance the factors of heat generated from the biomass on their loads, against the requirement for ventilation, against the need to protect the loads from inclement weather conditions. Mr. Donaldson indicated that when T-07 was loaded, he arranged for two loaders on the truck to minimize the birds' exposure to cold, snowy weather. In addition, he left the passenger-side tarp closed, during loading, and unfurled the top tarp, as the loading progressed, to protect the birds from the snow blowing on to the load. Once loading was complete, he secured the load quickly, and left the farm, realizing that once the load was complete, it was his obligation to get the birds to the processing plant and the protected barn environment, as quickly and safely as he could. He was totally aware that he was never to load wet birds. In his evidence, Mr. Melo indicated that he exercised his judgment, based upon familiarity with all of the factors, in trying to protect the load from the cold during loading and the trip back to Maple Lodge Farms. Once again, he was fully aware that he could not load wet birds because of the danger of hypothermia. Moreover, he was acutely aware that the most humane course of action for the spent leghorns he was loading was to load them expeditiously for humane slaughter. The alternative was leaving the birds in a cold barn, where they would starve, freeze and die, in his words.

412The defendant submits that the high percentage DOA's on these loads were "unexpected and perplexing", since all proper procedures had been followed. The drivers had exercised their skill and judgment, which they had gained over years of experience as drivers, to try to protect the birds. It is further notable that the same standards for humane transportation applied to both the more valuable broiler cockerels and the less valuable spent hens. There is no evidence whatsoever of haphazard treatment of the spent hens, because of their low economic value.

413The defendant submits that unfortunately, many factors were at play which caused high mortality on the loads in question. These factors were not readily predictable in advance. In both cases, well-intentioned efforts by the drivers to protect the loads, through tarping, in accordance with Standard Operating Procedures, caused a build-up of heat and moisture in Trailer T-07, and moisture and condensation in T-23, which accounted for the high mortality on these loads. Mr. Folkes says that these conditions do not equate with undue exposure to weather. If any criticism could be levelled, it is that of unintentional, inadequate ventilation. Maple Lodge Farms personnel took all reasonable steps available to them, given the context of the available technology at the time, to prevent the high mortalities on both of these loads, through excessive exposure to weather.

414Overall, the defendant's average DOA per load was 0.4%, although there were a few instances of high DOA loads in all seasons.

415The defendant further argues that the high DOAs is an unavoidable occasional consequence given the large number of loads that are processed by the defendant on a daily basis in all seasons and weather conditions.

416The Crown submits that it does not advance a defence of due diligence to claim that the occurrence of the prohibited act cannot be explained beyond it being expect to occur from time to time:

A "bell curve" or statistical average cannot excuse the occurrence of a prohibited act.it certainly does not relieve the defendant on the responsibility to demonstrate that all reasonable care was taken in relation to a specific load of live chickens.

417While no defendant can be held accountable for unforeseeable accidents and for activities beyond the reach of what they might reasonably be expected to influence or control, the nature of the species of poultry, the use of the tarping system, the weaknesses of highway transport in extremely cold weather, and other factors previously mentioned are known to the defendant, who is a specialist in the industry. In fact, weather forecasts are obtained in advance for that very reason. In practise however, the philosophy appears to be to load in all conditions and 'let the chips fall where they may'.

12.3.4 Failure to Monitor Load

418Both Ben Durose and Richard Zancai admitted that monitoring of trailers in Maple Lodge Farms holding Barn Number Two was an important part of the humane transportation Standard Operating Procedures. The observations were to be recorded on a Load Condition Report to ensure that the environment within the holding barn was within the comfort zone of the birds located within the enclosed space. The defendant submits that it is impossible for loads to be unduly exposed to weather, while in either Barn Number One or Barn Number Two in any season of the year. In winter, the top tarps are removed and ceiling fans gently exhaust warm air, which works its way up through the load, and exhausts through the top crates. For Trailer T-07, the recorded external temperature on the bottom crates, at 4:00 a.m., was between 1.6 and 2.4˚C., depending upon the location at which the temperature was taken with the infra-red thermometer. These temperatures would rise, as the air proceeds upward through the load, in the chimney effect described by Dr. Ouckama.

419It is said that if the court accepts the Defendant's evidence concerning the differential between external crate surface temperature and the internal load temperature, then these birds on Trailer T-07 would have been within the comfort zone for cockerel chickens, if they were dry. The Court had found the temperature to be below the comfort zone at the time they were in the holding barn. The defendant also submits that even if the Court finds birds were wet, if the remainder of the birds were not wet, they could not have been subject to prolonged suffering. The load was not monitored when it should have been, at around 5:00 a.m., and again at around 6:00 a.m. because of unforeseen short staffing. The load went up into the slaughter line shortly after 7:00 a.m., but time of slaughter was noted as 8:56 a.m. It is the Defendant's position that although this load was not monitored for more than two hours, when it should have been, this failure to monitor did not cause or contribute to any suffering or mortality on Trailer T-07.

420The Defendant further relies upon the study performed by Dr. Ouckama, in 2007, indicating that the length of holding time for birds in the Maple Lodge lairage facilities did not materially increase load mortality until after six hours. Based on this, the Defendant submits that this two hour breach of the Standard Operating Procedures was not a material cause to any of the mortality or alleged suffering on Trailer T-07. In addition, it was not foreseeable that a plant employee would not show up for work on a New Year's Eve, when the transportation office was short-staffed.

12.4 Alternatives

421The defendant submits that "just on time" scheduling for processing flocks of birds is an inherent requirement of the supply management system. The Crown argues that Maple Lodge Farms consistently puts profits ahead of animal welfare, "the supply management system itself appears to be less an excuse and more a motive for the defendant's failure to adhere to even the most basic principles of humane transportation…it wasn't humane transportation which governed the defendant's actions but a near religious dedication to supplying its production lines".

422The supply management system is designed to ensure a constant supply of fresh, not frozen, chicken to consumers. It is governed by a system of contracts and penalties defining the economic relationship between hatcheries, feed mills, farms (producers), processors (MLF) and suppliers of chicken products (KFC, Swiss Chalet and various supermarkets).

423The system is typified by a "just on time" supply model. The schedule for processing live chickens is set at the incubation of the eggs. Precise timing is a central feature of this model. Chicken must be delivered on time and on weight to the producer in order to avoid penalties and to ensure that contracts with suppliers are met. The product is fresh meat which means that inventory is only that which being processed. If a processor delays picking up a flock it risks sustaining substantial penalties and future delays.

424According to various defence witnesses, delays in picking up a flock would result in harm to the birds in question and to the replacement birds on route from the hatcheries. Those same witnesses could not recall a situation where a flock had not been loaded. In other words, delaying the loading of a flock due to weather conditions was not a reasonable alternative to transporting a flock of birds in extreme weather conditions. Leaving the flock in the barn would itself cause undue suffering as feed shortages would be an issue and the health of the birds would deteriorate.

425Regarding Count 34, Mr. Frost argues that Dr. Ouckama's position is that temperature alone would not be an issue in the decision of Maple Lodge Farms to load and transport chickens because "the majority of loads at all temperatures are successful".

426The Crown submits that the assertion of the defendant that they had no choice but to transport those fragile spent hens that night is indicative of the lack of steps taken to ensure compliance with the Act.

427The Crown argues that Maple Lodge Farms is not consistent in the position that they had no choice but to take those birds due to supply management systems and concerns for the wellbeing of leaving chickens already withdrawn from feed in preparation for transport, and he relies on a specific example of an extreme weather event in February 2011, in which nine loads were cancelled due to harsh weather conditions, to show that Maple Lodge Farms should have put bird welfare above economy and not loaded trailer T-23 (and others) that night.

428Dr. Ouckama was taken to a specific example of an extreme weather event on or about February 02, 2011. On that date eleven MLF trailers attended at a farm in Kenilworth, Ontario. Two of those trailers were loaded, T-29 and T-31. The remaining nine loads were cancelled due to the harsh weather conditions. Four other trailers were assigned to another farm. Those loads were also cancelled. The loads that were cancelled were transported within a day or two following without any significant losses, in chicken or profits. The two loads that were transported suffered extremely high DOA's. The driver of one of those loads noted on his driver's sheet:

"In 25 years of chicken this has to be the baddest weather loading chickens. Shouldn't -- shouldn't have loaded chickens."

429There was the following notation on the Live Receiving report in relation to that load:

"This trailer had 2,397 dead birds, mostly on the driver's side of the trailer." And in brackets (birds very wet).

430The Crown points out that the Corrective Action section of the Maple Lodge Farms Investigation report in relation to that load is noted:

"We cancelled the rest of the nine loads. We had two sets come back empty. We will try and come up with a procedure on when to stop loading."

431Mr. Frost notes that this report was signed by Richard Zancai, who was the dispatcher on December 31, 2008, the night that trailer T-07 arrived at Maple Lodge Farms. He described December 2008 as a "killer for snow". Thus he concludes that, "it is apparent that be it the decision to load in inclement weather or to ensure that loads were properly monitored, the Defendant, Maple Lodge Farms failed to take all reasonable steps to ensure that the live chickens in their care were not injured and did not suffer unduly. On each and every occasion the Defendant put its economic interests (it profits) ahead of animal welfare."

432The inference the Crown is essentially asking the Court to draw is that nothing was done to prevent this likely occurrence in 2008 and 2009 at Maple Lodge Farms, and the same problem persisted in 2011, involving the same personnel without a solution being reached.

433The relevance of the 2011 event has only limited relevance, both as to the credibility of Dr. Ouckama in cross-examination, and to demonstrate that the production process can, if need be, accommodate delay.

12.5 Economic Imperatives

434The Crown submits that the overwhelming inference demonstrated on the evidence is that Maple Lodge Farms put profitability and economic concerns ahead of humane treatment of the chickens on the two dates.

435Maple Lodge Farms submits that profitability and bird welfare go hand in hand, and that any mortality on a load is a company cost, as:

a. Mortality costs the company money;

b. The defendant would lose the margin of the processed product;

c. The defendant would owe an explanation to customers who do welfare audits;

d. The weight of the trailer without snow and ice has a humane reason and not just an economic one, since the stunning machinery must be adjusted by weight to prevent suffering if artificially high.

436It is clear that economic considerations cannot warrant infliction of undue suffering.

437Despite the strong language used by the Crown, I do not take it that the Crown is submitting that Maple Lodge Farms intentionally adverted to the risk in advance and decided that profit demanded it proceed to load, reckless as to the consequences.

438It is rather a malaise of complacency with the winter loads and pick-ups, even when red flags are raised, in order to fill their part of the supply chain management and quota system, and to avoid economic penalties to themselves, and those who look to them in the supply chain.

13. Conclusions

13.1 Count 7

439December 2008 was described by one of the defence witnesses as a "killer for snow". Dec.31st that year did not disappoint for the consistently bad weather that month. Blowing snow was observed.

440Did the defendant company take all reasonable steps to ensure the chickens transported on Dec.31, 2008 did not suffer unduly because of undue exposure to weather?

441What occurred in transporting this load of broiler birds was a "perfect storm" of problems, such as:

• cold temperatures;

• blowing snow;

• wind;

• exposure of the top row of crates until the upper tarp could be secured;

• failure to leave any empty crates on the top row under the tarp;

• failure to leave any empty crates around the bottom perimeter on loading;

• possible over-tightening of the tarp;

• accumulation of snow and ice inside the back end of the trailer;

• failure to stop to adjust tarping and allow the birds to warm up and rest on a long trip;

• accumulation of snow and ice on the bottom of the trailer;

• understaffing at Maple Lodge Farms yard;

• re-assignment of a holding barn worker to removal of snow and ice at the scales;

• failure to monitor the load adequately in the holding barns; and

• insufficient training

442Maple Lodge Farms had their own Standard Operating Procedures. Point 7 of the monitoring procedures reads as follows:

"the driver is to ensure that the load is properly protected against inclimate [sic][inclement] weather conditions during the load- out(see tarping procedure)."

443Point 11 of the Standard Operating Procedures also states that, "driver is to monitor outside temperature and weather conditions and adjust load protection if required to ensure adequate protection and ventilation of the birds during transit".

444Adequate protection for these birds was not provided by the failure to leave empty crates in the outer lower portion of the load. The driver's position was simply that he was the first trailer to load so he needed to fill his trailer to ensure the entire load was accommodated by all trailers which were loading.

445Maple Lodge Farms failed to comply with the industry standards set out in the Canadian Agri-Food Research Council's Recommended Codes of Practise.

446The lack of enforced training about transportation of birds in inclement weather is a contributing cause to the prohibited act occurring. It is somewhat shocking that the Guidelines for Transporting Poultry were not familiar to Mr. Durose, as the then supervisor and trainer of those drivers providing live haul transportation to and from Maple Lodge Farms.

447Those guidelines provide that "the air temperature in load should be maintained at 5°C to 30°C for all birds except end-of-lay hens, to be maintained at 13°C to 30°C". The guidelines also recommend for broilers, an upper in-load temperature limit 24°C.

448Maple Lodge Farms was understaffed that day, which was the day of New Years' Eve and preceding day to a statutory holiday. An employee called in sick. The employee assigned to monitoring the loads in the holding barn was diverted by Mr. Durose to assisting with chipping off ice and snow from the underside of trailer T-07. In the result, it appears the loads in the barn were not monitored at all after 4:00 a.m.

449The Court finds that "transportation" of the chickens is not merely from the farm to the boundary property of Maple Lodge Farms. It includes the entire time from loading to unloading of the birds. Transport is not complete until the birds leave the trailer and are handled by employees on the manufacturing line.

450The defendant failed to monitor the load on an hourly basis in accordance with their Standard Operating Procedure. In failing to properly monitor the loads alone, Maple Lodge Farms failed to take all reasonable steps to ensure that live chickens in their care were not injured and did not suffer unduly at their facility, but still packed in crates on the trailer, and not unloaded.

451Weather was still a factor at the Maple Lodge Farms facility. The ice and snow which accumulated on the bottom of the trailer had to be cleared to get a "true weight". Conditions of the load was an evolving situation which were aggravated by the outside weather conditions, the internal temperature of the load, the ambient barn temperature, and the apparent lack of notice of the accumulated and accumulating dead in the load of broilers.

452Any of the birds which died prior to slaughter likely suffered unduly. That fact is not really in dispute. The issue is whether they suffered unduly because of undue exposure to weather during their transport.

453The Crown submits that there is an inference of a mentality of profits ahead of animal welfare. The Court finds that where there was a tension between the needs of the animals and the expediency of the production line, the balance fell for Maple Lodge Farms on the side of industrial requirements.

454The regulators under the Federal statute in question do not demand a standard of perfection. It is recognized that some deaths inevitably occur when catching, crating and transporting live poultry. The regulations strike a balance by use and application of the terms "undue suffering" and "undue exposure", and the need for foreseeability of harm. The inspection team of Canadian Food Inspection Agency do not generally initiate an investigation unless more than two percent (2%) of a broiler load perish in transit, and more than four percent (4%) of a load of spent hens arrive dead.

455The Court finds that a reasonable person apprised of all the circumstances that presented on New Year's Eve Day 2008 would foresee a reasonable likelihood that the poor weather would wet some or many of the birds loaded in the manner that they were, and together with the air temperature and wind-chill, would cause undue suffering to those birds.

456Although Maple Lodge Farms took some steps to protect the birds from the elements by tarping, which was the standard at the time, they failed to take the reasonable steps to leave some outer crates empty to defray the frigid air intake venting into the trailer. They also failed to adequately monitor the trailer in the holding barns, while the birds were still on the trailer, to ensure they did not suffer unduly pending their processing on the line.

457Undue exposure to weather occurred both in transit, and by the connected conditions present while stationary later. I am satisfied that the Crown has proven the actus reus of the offence beyond a reasonable doubt.

458Maple Lodge Farms did take some steps to avoid the particular result that day, but did not take all reasonable steps consistent with their duty of care to provide humane transportation for the broilers.

459Having considered all the evidence, the defence has failed to meet their burden of proof to show that the defendant was duly diligent, particularly in the omissions to following at least part of the company Standard Operating Procedure, and industry guidelines.

13.2 Count 34

460The defendant concedes that no special steps were taken to prevent injury and undue suffering occasioned to the spent hens transported to Maple Lodge Farms in trailer T-23. The Crown characterizes it as "one of four catastrophic loads emanating from the same farm that night."

461Catastrophic is not an overstatement, given that T-23 had 1,181 hens dead-on-arrival (DOA), and the sister loads in T-13 (1,337), T-21 (1,019), and T-24 (2,019) had another 4,375 spent fowl dead on arrival, for a total that day of 5,556 birds from Gray Ridge Farms, who arrived at Maple Lodge Farms without life.

462It was an extremely cold night when these spent hens were loaded and transported.

463The Court finds that it is an irresistible inference that Maple Lodge Farms was governed by either economic imperatives, or a misguided decision to clear the barn rather than leave any chickens behind regardless of their condition.

464In the result, thousands of birds likely suffered. Many of them died. A reasonably fully informed person, adequately trained, would have foreseen that as a likely result, due to the condition of the birds and the weather conditions that day.

465In all the evidence this Court heard from the drivers who had been transporting fowl for years, there were virtually no times that they could point to where they would not load the trailer in terrible weather. An exception occurred about two years after the offence dates here, when the weather was -25°C windy and snowing, and Maple Lodge Farms cancelled some of the loads of chicken after a trailer was received with 2,397 dead very wet birds on it. The driver had noted, "in 25 years of chicken, this had to be the badest [sic] wheather [sic] loading chicken. Shouldn't of loaded chicken".

466As previously stated, the regulators under the Federal statute in question do not demand a standard of perfection. It is recognized that some deaths inevitably occur when catching, crating and transporting live fowl. The regulations strike a balance by use and application of the terms "undue suffering" and "undue exposure", and the need for foreseeability of harm. The inspection team of Canadian Food Inspection Agency do not generally initiate an investigation unless more than four percent (4%) of a load of spent hens arrive dead.

467It is difficult to determine whether any conscious thought was applied on each of the two dates specified in the information to the impact of severe cold on the chickens being loaded. From all intents and purposes, it seems that the attitude was "business as usual".

468Regrettably, Maple Lodge Farms, through their employees and agents, decided that commercial imperatives trumped animal welfare when setting out that day to transport the spent hens to slaughter. Although their acquisition was without cost to Maple Lodge Farms and their agent purported to have altruistic motives, the spent fowl did produce some revenue to the defendant after processing.

469The Crown has established the prohibited act alleged to have occurred on Feb.23, 2009 beyond a reasonable doubt. Maple Lodge Farms has failed to establish on a balance of probabilities that they were duly diligent. Their employee and agent, knowing that some of the animals were unfit for travel, loaded them in adverse weather conditions, reckless at to their welfare. The corporation is liable for the acts of their employees and agents. Undue exposure to weather upon these birds caused undue suffering and an "astronomical" number of deaths.

470The Court, having heard from experts and workers within the industry, and from the Canadian Food Inspection Agency, would encourage the legislators to take a fresh look at the regulations to the Health of Animals Act and other regulatory schemes for the hatching and farming of poultry, its transportation and slaughter, and its ultimate sale.

471Surely some flexibility could be built into the chicken production and slaughter industry to accommodate exigencies such as adverse weather and other conditions which are detrimental to the humane transportation of poultry. If delay in transportation triggers a series of economic administrative penalties at either end to either the farmers, or the meat producers, this functions as a disincentive to wait out the weather conditions.

472Any regulatory changes, if any are required, need to strike a delicate balance between the economic and competitive market, marketing infrastructures, practicality in enforcement, and knowledgeable standard operating procedures.

13.3 Conclusion Summary

473The Court finds the evidence of the Canadian Food Inspection Agency inspector and veterinarian credible and reliable. The Court accepts the expert opinion of Dr. Appelt, as corroborated by Dr. Doonan and Dr. Gomulka. I am satisfied beyond a reasonable doubt that broiler birds were loaded for transport on an exceptionally bad weather day, and that the defendant knew or ought to have known that the birds could become wet with the way that snow and ice was accumulating and coming up off the highway and into the bottom crate area which took the brunt of the frigid air.

474In addition, some of the birds on the top layer were wet in the process of loading due to blowing snow before the upper tarp was able to be applied, as Mr. Donaldson, the driver, later told the Canadian Food Inspection Agency inspector. Both such conditions were incompatible with life for many of the affected birds. Undue suffering occurred.

475Undue exposure to weather was, if not the primary cause of death, a significant contributory cause to both death and incidental suffering of the birds. Many of the other potential causes of mortality were speculative and not likely on the preponderance of evidence including healthy flock reports by the farmers, and no complaints of any conditions by either the trained catching crew, or the Maple Lodge Farms drivers.

476The trip was quite lengthy from Clifford Ontario to Brampton Ontario. Wet birds, whether actually frozen or not, are unable to sustain their body temperatures for the reasons given by the veterinary evidence.

477The defendant has failed to demonstrate that it took all reasonable steps to prevent the prohibited act from occurring. Lack of adequate training, personnel, or equipment for the in-load temperature monitoring both at the farm and during the remaining transit contributed to the ultimate poor result.

478Maple Lodge Farms is found guilty of count 7.

479The load of spent hens was especially fragile and vulnerable. The Canadian Food Inspection Agency recognizes this by placing a higher percentage of DOAs in the load in its guidelines as a trigger for inspection.

480The Crown has proven beyond a reasonable doubt that the undue exposure to weather was a substantial contributing cause to the death of 1,181 chickens, and that undue suffering of those and other birds on trailer T-23 occurred due to undue exposure to weather.

481The defendant did not take reasonable care in ensuring this prohibited act did not occur. The driver, Mr. Melo, was instructed to load the birds, and notwithstanding the weather, and he did so, regardless of the condition of the hens. He stated it was better he took them than to let them perish in the barn. Those birds suffered unduly.

482Maple Lodge Farms is found guilty of count 34.

483The remaining 58 counts on both informations remain to be spoken to.

484Both counsel can confer as to the date and time required to make submissions with respect to penalty.

Released: September 27, 2013

ORIGINAL SIGNED BY THE HONOURABLE JUSTICE NANCY S. KASTNER

Signed: "Justice N. S. Kastner"