Court Information
Court: Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— And —
Rebecca Hurley and Albert Hurley
Before the Court
Justice of the Peace: J.G. McMahon
Heard on: June 20, 2016; June 21, 2016; June 22, 2016; June 23, 2016; June 24, 2016; November 1, 2016; November 2, 2016; November 3, 2016; March 13, 2017
Reasons for Judgment released on: April 5, 2017
Counsel
Assistant Crown Attorney: David Didiodato
Defendant Rebecca Hurley: On her own behalf
Albert Hurley: No appearance by or on behalf of Albert Hurley
Judgment
JUSTICE OF THE PEACE J.G. MCMAHON:
[1] Background and Removal of Animals
1On the 5th day of March, 2015, the Ontario Society for the Prevention of Cruelty to Animals ("OSPCA") removed 25 horses and one goat from 534 Case Road, in Sault Ste. Marie, Ontario ("the Farm"), for the stated purpose of relieving the animals' distress.
2Albert Hurley and Rebecca Hurley were both subsequently charged with seven offences under the Ontario Society for the Prevention of Cruelty to Animals Act, R.S.O. 1990, Chapter 0.36 ("OSPCAA"). All of the offences were alleged to have occurred on or about March 5, 2015. All of the counts in the Information state that the offences are in relation to horses. The seven counts can be briefly summarized as follows:
Count #1 — causing horses to be in distress contrary to ss. 11.2(1) and 18.1(1)(c) of the OSPCAA;
Count #2 — permitting horses to be in distress contrary to ss. 11.2(2) and 18.1(1)(c) of the OSPCAA;
Count #3 — failing to provide horses with the care necessary for their general welfare as required by O. Reg. 60/09 s. 2(3) and contrary to ss. 11.1(1) and 18.1(1)(b) of the OSPCAA;
Count #4 — failing to provide horses with adequate and appropriate food and water as required by O. Reg. 60/09 s. 2(1) and contrary to ss. 11.1(1) and 18.1(1)(b) of the OSPCAA;
Count #5 — failing to provide horses with adequate and appropriate medical attention as required by O. Reg. 60/09 s. 2(2) and contrary to ss. 11.1(1) and 18.1(1)(b) of the OSPCAA;
Count #6 — failing to provide horses with adequate and appropriate resting and sleeping areas as required by O. Reg. 60/09 s. 2(5) and contrary to ss. 11.1(1) and 18.1(1)(b) of the OSPCAA; and
Count #7 — failing to comply with an order made pursuant to s. 13(1) of the OSPCAA contrary to ss. 13(5) and 18.1(1)(d) of the OSPCAA.
3Albert Hurley did not appear at the time and place appointed for the trial and the trial proceeded in his absence pursuant to s. 54(1)(a) of the Provincial Offences Act, R.S.O. 1990, c. P.33 ("POA"). Rebecca Hurley represented herself and attended the first part of the trial in June 2016, but she did not appear for the continuation of the trial in November 2016. The trial was completed in her absence pursuant to s. 54(1)(a) of the POA.
4When Rebecca Hurley did attend at the trial she objected to the proceedings and regularly challenged the jurisdiction of the court. She made a number of unsuccessful requests, including: a trial by jury; a common law court of record; the discharge of the matters; and the return of her property (i.e. animals). Many of the positions she advanced can be characterized as "organized pseudo legal commercial argument" as explained in Meads v. Meads, [2012] ABQB 571. She also challenged the qualifications of two of the prosecution's expert witnesses on two voir dires. However, she did not appear to complete the trial with the result that she did not cross-examine any prosecution witnesses at the trial proper and she did not present any evidence in her defence. Therefore, the evidence of the prosecution witnesses was unchallenged.
5On March 13, 2017, I found Albert Hurley not guilty of all seven counts charged. I found Rebecca Hurley not guilty of the first count on the Information, but guilty of the six remaining counts. On that day, I committed to providing these written reasons.
A. THE NATURE OF EX PARTE PROCEEDINGS — s. 54 of the POA
6In R. v. Bandito Videos Ltd, [1986] O.J. No. 2619 at para. 13, the court reminded us that an ex parte trial "…is still a trial, with all its attendant burden of proof, formality and evidentiary requirements…", including proof beyond a reasonable doubt of all the essential ingredients of the offence charged. The court also indicated that the judicial duty of care, attention and prudence is higher where the defendant is not present at trial.
7In R. v. Jenkins, 2010 ONCA 278, [2010] 99 O.R. (3d) 561 (C.A.), at paras. 27 and 31, the Court of Appeal for Ontario confirmed that ex parte proceedings carry an inherent risk for a miscarriage of justice and that the usual procedural and evidentiary rules are to apply in such proceedings. It is therefore important to approach ex parte trials with prudence and with special attention to the rules of evidence and the analytical framework to be applied to the evidence at trial.
B. THE ANALYTICAL FRAMEWORK
8In Wawanesa Mutual Insurance Co. v. Axa Insurance (Canada), 2012 ONCA 592, at para. 34, the Court of Appeal for Ontario spoke of the essential elements of the purposive approach to statutory interpretation:
The purposive approach to statutory interpretation requires the court to take the following three steps: (1) it must examine the words of the provision in their ordinary and grammatical sense; (2) it must consider the entire context that the provision is located within; and (3) it must consider whether the proposed interpretation produces a just and reasonable result.
9In Podolsky v. Cadillac Fairview Corp., 2013 ONCJ 65, [2013] O.J. No. 581 (ONCJ), the court confirmed that the OSPCAA is a regulatory and public welfare statute and described the statute as follows, at para. 64:
However, its primary focus remains fixed on animal health and welfare and the prevention of exploitation and abuse by pet owners and those engaged in animal husbandry and the exhibition of animals. The Act also addresses certain related duties of veterinarians. Significantly, prohibitory provisions in the Act distinguish between persons who own or care for animals and "persons" in general, a matter to which I soon return.
10A review of the OSPCAA reveals a statute and associated regulations that impose different standards of care on different categories of persons with respect to different species of animals. There are provisions governing the conduct of an owner, custodian or person who has the care of an animal which, in my view, differ from the conduct expected of those who do not undertake such responsibilities. There are also provisions directed to those who keep wildlife in captivity. Finally, specific rules apply with respect to certain animals such as marine mammals, primates and dogs that live primarily outdoors.
11The differences in legislative focus within the scheme of the OSPCAA and the different language used in the provisions of the statute and its regulations are relevant to a purposive approach to the interpretation of the offences charged in this present case. In analyzing such distinctions we must be mindful of the principle of statutory interpretation that Parliament does not speak in vain: see R. v. D.A.I., 2012 SCC 5, [2012] 1 S.C.R. 149, at para. 31.
12Even though Albert Hurley and Rebecca Hurley faced a number of different offences, in my view, they all share one common feature—they are all strict liability offences. In Podolsky, the court considered s. 11.2(1) of the OSPCAA to be a strict liability offence. For the reasons that follow, I concluded that ss. 11.1(1), 11.2(1), 11.2(2) and 13(5) are all strict liability offences.
13First, all the offences charged carry a potential penalty of a term of imprisonment. An absolute liability offence cannot include a term of imprisonment: see R. v. Pontes, [1995] 3 SCR 44, at para. 26. Second, the language of the provisions do not contain the words "wilfully", "with intent", "knowingly" or "intentionally" which would signal the legislature's intent to create a full mens rea offence: see R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299 at 1326. Third, s. 11.2(1) employs the term "cause" and s. 11.2(2) employs the term "permit". In R. v. City of Sault Ste Marie, at 1328, the court confirmed that these two terms are a better fit for a strict liability offence rather than an absolute liability or a full mens rea offence. Fourth, the case law on the statutory interpretation of offences is clear—absent a clear contrary legislative intent, the regulatory offence is presumed to be a strict liability offence: see Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec inc., 2006 SCC 12, [2006] 1 S.C.R. 420, at paras. 16 to 19. In my view, that presumption is not displaced with respect to ss. 11.1(1), 11.2(1), 11.2(2) and 13(5) of the OSPCAA.
a) Analyzing the Strict Liability Offence
14In a strict liability offence, the prosecution must prove each constituent element of the actus reus of the offence charged—beyond a reasonable doubt. However, the case law is clear—the prosecution does not have to prove any mens rea (i.e. mental element): see R. v. City of Sault Ste. Marie, at 1326.
15The basis of fault or liability of the strict liability offence is mere negligence: see R. v. Wholesale Travel Group Inc., [1991] 3 SCR 154. The defence of due diligence is therefore available to the defendant, but it is the defendant who must prove, on a balance of probabilities, that he or she was not at fault because he or she exercised due diligence in the circumstances (i.e. did not act in a negligent manner). In R. v. Wholesale Travel Group Inc., the court also confirmed that strict liability offences are constitutional. Even though the imposition of a persuasive burden on the defendant means that a defendant could be found guilty even where there exists a reasonable doubt (which runs contrary to the presumption of innocence as guaranteed by s. 11(d) of the Charter) strict liability offences are saved by s. 1 of the Charter.
16In practical terms, there are four principal ways by which a defendant can avoid conviction of a strict liability offence.
A defendant can avoid conviction where there exists a reasonable doubt with respect to at least one of the constituent elements of the actus reus of the offence. Such a reasonable doubt can arise: where the prosecution fails to adduce sufficient evidence; where the defendant in cross-examination of prosecution witnesses raises a reasonable doubt; or where the defendant presents evidence that raises a reasonable doubt.
A defendant can avoid conviction where he or she can show, on a balance of probabilities, that he or she took all reasonable steps to avoid the particular incident (i.e. exercised due diligence in the circumstances). This is the first branch of the due diligence defence. The defendant can also show on a balance of probabilities that he or she reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent. This is the second branch of the due diligence defence. At trial, evidence of due diligence is usually adduced by defence witnesses, but it may sometimes arise from the testimony of prosecution witnesses both in examination-in-chief and in cross-examination.
Section 80 of the POA preserves certain common law defences, such as necessity or officially induced error that may be available to a defendant.
Some provincial offences refer to an authorization, exception, exemption or qualification that may allow a defendant to avoid liability. Section 47(3) of the POA imposes the burden on the defendant to prove that such provisions operate in his or her favour.
17At trial, the prosecution must also establish the jurisdiction of the court with respect to the proceedings. There are two aspects to the jurisdiction of the court which are sometimes referred to as "date and time" and "location". First, the prosecution will seek to establish the date and, on occasion, the time of the offence. Pursuant to s. 76 of the POA, proceedings must be commenced within six months of the date of the allegation or within the time specified in the statute creating the offence. Time can also be crucial for some offences like a municipal transportation by-law that prohibits left-hand turns during rush hour. Second, the prosecution must establish that the alleged offence occurred within the territorial jurisdiction of the court as defined by s. 29 of the POA. Sometimes, location will be of particular relevance because of the nature of the specific offence charged such as a municipal zoning by-law that prohibits certain activities in a residential area. Therefore, "date and time" and "location" are not only important to the defendant seeking to identify the details of the allegations in order to make full answer and defence.
C. THE NATURE OF THE OFFENCES CHARGED
18Rebecca Hurley and Albert Hurley faced four types of OSPCAA offences. Proper legal analysis requires a closer look at the nature of these offences. Given that the offences are strict liability offences some attention must be focused on identifying the constituent elements of the actus reus of the offences.
a) s. 11.2(1) No Person Shall Cause an Animal to Be in Distress
19The defendants are charged with contravening s. 11.2(1) of the OSPCAA. They are also charged with contravening s. 11.2(2). The nature of each offence is best explained by comparing and contrasting one to the other. For ease of reference, the provisions read as follows:
s. 11.2(1) No person shall cause an animal to be in distress.
(2) No owner or custodian of an animal shall permit the animal to be in distress.
20The term "distress" is defined in s. 1 of the OSPCAA as follows:
"distress" means the state of being in need of proper care, water, food or shelter or being injured, sick or in pain or suffering or being abused or subject to undue or unnecessary hardship, privation or neglect;
21Application of the purposive approach to statutory interpretation to the definition of "distress" confirms a very broad and inclusive concept drafted to encompass most, if not all, possible forms of harm to the health and welfare of an animal. The term "animal" is not defined in the OSPCAA or the regulations. Nonetheless, by any measure, including application of the purposive approach, there is no doubt that—a horse is an animal.
22In Podolsky, at para. 75, the court concluded that the distinction between ss. 11.2(1) and (2) is the product of legislative intent. That conclusion is supported by the different language of the provisions—s. 11.2(1) would apply to all persons and speaks of causing ("cause") distress whereas s. 11.2(2) would apply only to an owner or custodian and speaks of permitting ("permit") distress.
23The language of s. 11.2(1) imposes a clear standard of care on all persons—do not cause distress to any animal. In my view, application of the purposive approach to statutory interpretation and the weight of authority supports the conclusion that the actus reus of s. 11.2(1) requires, inter alia, proof beyond a reasonable doubt that the defendant engaged in a positive act that resulted in "distress". An omission, failure to act or mere passivity are not sufficient to ground liability for this offence.
24As a general rule there is no liability for failing to act. However, the legislature can and does regularly create statutory duties that impose obligations to act in defined circumstances. The Highway Traffic Act, R.S.O. 1990, c. H.8 imposes such a duty in s. 200(1)(b) where the person in charge of a motor vehicle involved in an accident must "render all possible assistance". The actus reus of such an offence would involve the omission or failure to act in accordance with the statutory obligation. In my view, the design and the language of s. 11.2(1) do not impose a similar type duty or standard of care.
25The provision does not impose a general duty upon the population at large to prevent distress to an animal or a general duty to relieve distress. As will be explained below—the OSPCAA imposes such duties on the owners and custodians of an animal by operation of s. 11.2(2). The duty and standard of care created by s. 11.2(1) is more limited and requires an understanding of the meaning of the term "cause" in a regulatory context.
26The weight of legal authority views "cause" as requiring a positive act. In Astro Tire & Rubber Co. v. Western Assurance Co., [1997] 24 O.R. (2d) 268, the majority of the Court of Appeal of Ontario described "cause" as follows, at para. 9:
It is defined in the Shorter Oxford Dictionary as follows: "Cause ... 1. trans. To be the cause of; to effect, bring about, produce, induce, make". It is a transitive verb which in its ordinary usage contemplates that someone or something brings about an effect.
27In R. v. City of Sault Ste Marie, the Court confirmed "cause" and "permit" as troublesome terms that have generated much case law. The court went on to provide valuable insight into the differences between the terms, at 1329:
The "causing" aspect centres on the defendant's active undertaking of something which it is in a position to control and which results in pollution. The "permitting" aspect of the offence centres on the defendant's passive lack of interference or, in other words, its failure to prevent an occurrence which it ought to have foreseen. [Emphasis added]
28In Podolsky the court, at para. 76, adopted a similar view with respect to the use of the terms "cause" and "permit" in ss. 11.2(1) and (2) of the OSPCAA:
The former term, "cause", suggests some active role in the infliction of the prohibited harm while the latter, "permit", allows for a finding of culpability founded on mere passive participation.
29In Alphacell Ltd. v. Woodward, [1972] 2 All ER 475 at 483, Viscount Dilhorne identified three ways in which "cause" may arise: where a person intends to secure a particular result and does an act to bring it about; where a person commits a deliberate act of which the natural consequence is that a certain result will follow, even where the person did not intend the result; and where a person acts in a negligent manner that brings about a result, even where the person did not intend the result. In my view, these three descriptions have value in illustrating "cause" as arising from positive acts as long as it is remembered that in the context of a strict liability offence, the prosecution need not prove any mens rea and the defendant can advance a defence of due diligence.
30In his submissions, the prosecutor referenced Black's Law Dictionary, which he conceded appeared to point towards "cause" as being more positive action rather than passive acquiescence. He also indicated that "cause" would have a higher threshold than "permit" in terms of what is required of a person. However, he argued that in the case of domestic animals, which are dependent on humans for their care, "cause" could arise from an omission or failure to act. In this last submission he did partly rely on Ontario Society for the Prevention of Cruelty to Animals v. Smith, [2015] O.J. No. 3880 (ONCJ), at para. 183. With respect, I disagree with the prosecutor's last argument.
31First, as already discussed, the language of s. 11.2(1) is not sufficient to create a general duty to prevent or relieve distress. Second, the weight of legal authority with respect to the concept of "cause" does not align with the notion that you can "cause" by omission. Third, the purposive approach to statutory interpretation requires that s. 11.2(1) be viewed within its entire context, including the scheme and other provisions of the OSPCAA.
32As discussed, the OSPCAA imposes different duties of care on different categories of persons. In my view, under the OSPCAA, the person who voluntarily chooses to engage in the lawful activity of becoming an owner or custodian of an animal faces a greater duty of care than the person who chooses a life without animals. The latter must not commit a positive act (i.e. "cause") that results in distress to an animal. The former must not "permit" the animal owned or in his or her custody to be in distress. An owner or custodian of an animal can be convicted for causing distress pursuant to s. 11.2(1) but only where the prosecution has proven, inter alia, that the distress resulted from the commission of a positive act or acts by the owner or custodian. In Podolsky, at para. 75, the court explained the differences between ss. 11.2(1) and (2) as follows:
While the word "cause" may, depending on context, encompass conduct consonant with the term "permit", the Legislature has clearly distinguished between the two concepts in s. 11 and circumscribed the compass of liability for those who do not own or have custody of animals. Indeed, there otherwise would be no need for s. 11.2(1).
33To make out the offence under s. 11.2(1), the prosecution must also prove—beyond a reasonable doubt--that the positive act or acts of the defendant resulted in "distress" as defined by s. 1 of the OSPCAA. In other words, "causation" is a constituent element of the actus reus of the offence.
34The case law shows that, in most cases, the issue of "causation" will not pose much difficulty for the trier of fact. For example, one need only think of the case where there are witnesses to an attack on an animal with resulting visible injuries. However, there can be cases where there are multiple defendants, multiple causes of distress, pre-existing conditions or intervening events that can pose legal and evidentiary challenges. It is also important to recognize that the concept of causation "…cannot be articulated with mathematical precision": see R. v. Cribbin, [1994] O.R. (3d) 548 (C.A.).
35In criminal law, the determination of "causation" is based in the common law and on statute. The criminal case law confirms that there are two components of "causation": see R. v. Smithers, [1978] 1 S.C.R. 506; R. v. Nette, 2001 SCC 78, [2001] 3 SCR 488; R. v. Talbot, 2007 ONCA 81, [2007], 217 C.C.C. (3d) 415 (C.A.). Factual causation asks the question—how did the result come to be and what was the contribution of the defendant to that result? Legal causation asks the question—when, at law, is the defendant's contribution to the result sufficient to hold him or her responsible? In R. v. Auto Body Services Red Deer Ltd., [2014] A.J. No. 839 (Alta Prv. Ct.) the court adopted the criminal law approach to "causation" in a regulatory matter. The court said, at para. 146:
The common law rule as stated by the Supreme Court of Canada in R v Smithers, [1978] 1 SCR 506 is that is the impugned conduct must be at least a contributing cause outside the de minimis range. As stated in R v Carver, this test "...remains as an accepted formulation of the test for causation. It is clear that, in the absence of statutory language to the contrary, the 'cause' of an event need not be the 'sole' or a 'substantial' cause of that event."
36In R. v. Nette, the majority of the Supreme Court of Canada rephrased the threshold to: whether the defendant's actions were a "significant contributing cause" of the result?
37To summarize, in addition to establishing the jurisdiction of the court over the proceedings, the prosecution must prove the following constituent elements of the actus reus of s. 11.2(1)—beyond a reasonable doubt: the identity of the defendant; that the defendant is a person; that the animal was in "distress" as defined by s. 1 of the OSPCAA at the time of the alleged offence; that the defendant engaged in a positive act or acts that constitute "cause"; that the positive act or acts of the defendant resulted in the "distress" (i.e. causation) to the animal.
38Finally, it merits noting that ss. 11.2(6) and (7) contain a number of exemptions to the application of ss. 11.2(1) and 11.2(2). Additional exemptions are included in O. Reg. 62/09. As discussed, pursuant to s. 47(3) of the POA, the defendant carries the burden of proving that such exemptions operate in his or her favour.
b) s. 11.2(2) No Owner or Custodian of an Animal Shall Permit the Animal to Be in Distress
39This provision specifically imposes a duty and standard of care upon the owner or custodian of an animal. In my view, the term "permit" is much broader than term "cause" and the actus reus of s. 11.2(2) can be committed by act or omission.
40The provision imposes a positive duty on the owner or the custodian of an animal to prevent the animal from falling into distress as well as a positive duty to relieve any distress whether or not the owner or custodian is to blame for the distress. Therefore, the standard of care can be considered as more substantial as compared to the standard imposed by s. 11.2(1).
41Understanding the term "permit" is essential to the proper assessment of the duty and standard of care arising from s. 11.2(2). As already noted, in R. v. City of Sault Ste Marie, at 1329, the concept of "permit" was described as a "passive lack of interference" and a "failure to prevent an occurrence which it ought to have foreseen". That meaning is echoed in the case law.
42The Court of Appeal for Ontario has weighed in on the issue and helped to better define the concept of "permit". In R. v. Royal Canadian Legion, [1971] O.J. No. 1673 (C.A.), at para. 22, the court accepted that "permit" meant "not to prevent". In 1213963 Ontario Limited v. Alcohol and Gaming Commission of Ontario, [2009] ONCA 323, at para. 3, the court concluded that "permit" required proof that the defendant knew or ought to have known of the problem or issue at hand.
43In R. v. Bedard, [2009] O.J. No. 4720 (ONCJ), the court stated at para. 9:
"Permit" is a broader term and does not embrace intent or recklessness. One may permit without being wilful or reckless, for example, simply by failing to take reasonable care.
Finally, as already noted, in Podolsky, at para. 76, the court described "permit" as "mere passive participation."
44The case law confirms that the concept of "permit" is very broad. In my view, it can manifest itself in numerous ways by either act or omission. In certain circumstances, the act of authorizing another person to engage in an activity can constitute "permit". In other circumstances, to passively standby, to allow, to fail to act to prevent foreseeable harm or failing to remedy existing harm could also constitute "permit". Each case will turn on its facts, but it is clear that the use of the term "permit" in s. 11.2(2) imposes a significant duty of care upon an owner and a custodian of an animal.
45"Causation" is also a constituent element of the actus reus of s. 11.2(2). The prosecution must prove—beyond a reasonable doubt—that the acts or omissions of the defendant resulted in the animal being in "distress". The issues already discussed with respect to "causation" and s. 11.2(1) would apply to s. 11.2(2) and need not be repeated. It should also be noted that an owner or a custodian may avoid liability under s. 11.2(2) if he or she qualifies for one of the exemptions listed in ss. 11.2(6) and (7) or O. Reg. 62/09.
46To summarize, in addition to establishing the jurisdiction of the court over the proceedings, the prosecution must prove the following constituent elements of the actus reus of s. 11.2(2)—beyond reasonable doubt: the identity of the defendant; that the defendant was an owner or custodian of the animal at the time of the alleged offence; that the animal was in "distress" as defined by s. 1 of the OSPCAA at the time of the alleged offence; that the defendant's acts or omissions constitute "permit"; and that the acts or omissions of the defendant resulted in the "distress" (i.e. causation) to the animal.
c) s. 11.1(1) Every Person Who Owns or Has Custody or Care of an Animal Shall Comply with the Prescribed Standards of Care
47This provision imposes a specific statutory duty upon those who own an animal or have custody of an animal or care for an animal. It should be noted that "prescribed administrative requirements" were not at issue in this trial.
48In my view, the actus reus of this offence may be committed by act or omission. A person may perform an act that is contrary to a standard of care or a person may omit or fail to perform a duty required to meet a standard of care. Both situations can result in legal liability.
49At first glance, this provision may appear to be relatively straightforward as compared to distinguishing between the meanings of "cause" and "permit". However, the provision carries its own complexities. There are six principal issues that merit discussion.
50First, there are a number of exemptions to the application of this provision (e.g. see ss. 11.1(2) and (3)). As already discussed, pursuant to s. 47(3) of the POA, the defendant carries the burden of proving that such exemptions operate in his or her favour.
51Second, s. 11.1(1) does not set out the prescribed standards of care. Those standards are established by regulation, notably O. Reg. 60/09, which is entitled, "Standards of Care and Administrative Standards". The regulations set out both basic standards of general application as well as specific standards that apply to certain animals such as primates and marine mammals. There are no specific standards governing the care of horses—the basic standards, as set out in O. Reg. 60/09 s. 2, would therefore apply. In the present case, the defendants are charged with failing to meet four standards of care under O. Reg. 60/09, notably ss. 2(1), 2(2), 2(3) and 2(5).
52Third, the basic standards of care must always be individualized to the particular animal at issue in its particular circumstances. This individualized approach is mandated by O. Reg. 60/09 s. 1(4), which states:
1(4) A requirement that a standard of care be adequate and appropriate or necessary is a requirement that the standard of care be adequate and appropriate or necessary to the specific animal, having regard to its species, breed and other relevant factors.
53Such an individualized approach is likely the product of necessity because it would represent a herculean task to attempt to draft standards for each species of animal to cover every circumstance that could arise. There is no doubt that such an approach will sometimes result in a shifting duty of care depending on the changing circumstances of a particular animal over time (e.g. illness, injury, weather, age etc...). Therefore, those who own or have custody or care of an animal must employ constant vigilance to ensure compliance with the applicable standards of care.
54Fourth, industry standards are not legislated or prescribed standards. The appropriate standard of care will be defined by the circumstances of the particular animal at issue. In other words, the prosecution must always prove—beyond a reasonable doubt—the specific standard of care owed to the particular animal in its particular circumstances as well as the defendant's breach of that standard. On occasion, an industry standard may be proven to be the appropriate standard of care, but that conclusion is never an automatic.
55Fifth, given the variety of animals and their different needs, trials involving standards of care will frequently involve expert testimony. Oftentimes, experts will use industry standards of care as a basis or resource to support their expert opinion on the appropriate standard of care in the circumstances of the case.
56Sixth, with respect to s. 11.1(1), the prosecution need not prove that the breach of the standard of care caused harm or distress to the animal. Proof of a breach of the applicable standard of care, inter alia, is sufficient. In other words, "causation" of harm or distress is not a constituent element of the actus reus.
57To summarize, in addition to establishing the jurisdiction of the court over the proceedings, the prosecution must prove the following constituent elements of the actus reus of s. 11.1(1)—beyond a reasonable doubt: the identity of the defendant; that the defendant owned, had custody or care of the animal at the time of the alleged offence; the prescribed standard of care (and/or administrative requirements) applicable to the particular animal in the animal's particular circumstances at the time of the alleged offence; and the defendant's failure to comply with said standard of care (and/or administrative requirements).
d) s. 13(5) Every Person Who Is Served with an Order Under Subsection (1) Shall Comply with the Order
58The OSPCAA imposes a statutory duty on an owner or custodian of an animal to comply with an order issued by an OSPCA inspector or agent. Pursuant to s. 13(1) of the OSPCAA such an order can direct an owner or custodian to take action to relieve the distress of the animal or to bring the animal to a veterinarian for examination and treatment. The content of the order will define what the owner or custodian must do. In my view, the actus reus of the offence is committed, inter alia, by the omission or failure to comply with the requirements of the particular order.
59As a general rule, at a trial of an allegation of failing to comply with an OSPCA order, the defendant cannot escape liability by challenging the validity of the order. The doctrine of collateral attack of an order will be a barrier to such a challenge: see Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, at paras. 60-68. Under this doctrine, a person is expected to follow the prescribed route to appeal an order and will be generally prohibited from questioning the validity of the order in other proceedings. In this case, Rebecca Hurley would have exercised her right of appeal pursuant to ss. 17 and 18 of the OSPCAA: see Hurley v. Ontario Society for the Prevention of Cruelty to Animals, [2015] ONSC 7784 (SCJ).
60Application of the doctrine of collateral attack of an order does not, however, relieve the prosecution from having to prove that the order was in force and effect at the time of the alleged breach. The prosecution must also establish that the order was served in accordance with s. 20 of the OSPCAA.
61To summarize, in addition to establishing the jurisdiction of the court over the proceedings, the prosecution must prove the following constituent elements of the actus reus of s. 13(5)—beyond a reasonable doubt: the identity of the defendant; that an order under s. 13(1) of the OSPCAA against the defendant was in effect at the time of the alleged offence, including the terms of the order; service of that order upon the defendant set out s. 20 of the OSPCAA; and the failure of the defendant to comply with the terms of the order.
D. THE ANALYSIS
a) The Background
62At trial, the prosecution presented five witnesses. Three of the five were qualified to provide expert testimony: Dr. Keith Good, a veterinarian (expertise—equine care); Inspector T. Lapping of the OSPCA (expertise—care and management of horses); Dr. Bruce Robertson, a veterinarian (expertise—care, management and medical care of horses). Dr. Good's testimony provided historical context on the genesis of the charges before the court, but it was of limited relevance because Dr. Good ceased to be involved in the investigation as of early May, 2014. The charges before the court were alleged to have occurred some 10 months later, on or about March 5, 2015. In contrast, Inspector Lapping was involved from the beginning to the end of the investigation and provided testimony with respect to the evolution of the investigation and her assessments of the health and welfare of the horses at different points in time.
63As is often the case with expert witnesses—they did not agree in every detail. For example, Dr. Robertson did not take issue with the quality of the hay at the Farm in March 2015 whereas Inspector Lapping thought it was of poor quality. I also noted that on the issue of housing horses, Dr. Robertson expressed an opinion that with proper supports horses do better outside and that housing was not a significant source of "distress" in the present case. However, any disagreements were few in number and did not in any way detract from the fact that Inspector Lapping's and Dr. Robertson's expert opinions were predominantly in sync with respect to the health and welfare of the animals and that the horses were in distress on March 5, 2015. I found the evidence of the expert witnesses to be cogent, reasoned and helpful to the court.
64On May 2nd, 2014, Inspector Lapping, in the company of Dr. Good, executed a warrant for the purpose of determining whether there were any animals in distress at the Farm. The warrant was issued pursuant to s. 12(1) of the OSPCAA. Following an assessment of the horses at the Farm, Inspector Lapping issued, pursuant to s. 13(1) of the OSPCAA, orders to Rebecca Hurley with respect to the care, treatment and welfare of the horses. What followed was some 10 months or so of back and forth between the OSPCA and Rebecca Hurley.
65In those 10 months, some of the orders were modified, two were revoked, but most were the object of repeated extensions of the time for compliance. The evidence is that the OSPCA wanted to work with Rebecca Hurley to help her remedy the health issues with respect to the horses and to help her improve the care being provided. Along the way, it appears that there were some improvements. Inspector Lapping testified that in November 2014 the body condition of the horses had improved and that "Princey's" breathing issues had improved.
66There was also evidence that the OSPCA was sensitive to Rebecca Hurley's circumstances namely: that there were real difficulties in securing a veterinarian to attend at the Farm; that she had retained the services of a veterinarian, but that veterinarian had cancelled; and that she was apparently under some financial constraints. To that end, in late December 2014, OSPCA Senior Inspector L. Michaud would have tried to assist Rebecca Hurley secure the services of Dr. Rocheleau, a veterinarian from Espanola, for the purpose of providing dental services for the horses.
67However, after 10 months or so of the back and forth and repeated extensions of the time for compliance with the issued orders, Inspector Lapping applied for and was granted a warrant pursuant to s. 12(1) of the OSPCAA. The warrant was executed on March 2, 2015. In her testimony Inspector Lapping described a deteriorated situation with respect to the health and welfare of the horses, on that day.
68Inspector Lapping's concerns were translated into a further s. 12(1) warrant application. The warrant was issued. It was executed on March 5, 2015. On that day, Inspector Lapping was accompanied by Senior Inspector Michaud (OSPCA), Inspector N. Driscoll (OSPCA), Officer A. Patterson (OSPCA), Dr. Robertson and Dennis Walker. Mr. Walker assisted with the handling of the horses. Local police would have also been involved to ensure the peace. Following an assessment of the animals, Dr. Robertson recommended the removal of the 25 horses and one goat to relieve their distress. On March 5, 2015, those animals were removed from the Farm pursuant to s. 14(1) of the OSPCAA.
b) Findings
69With the exception of Dr. Good, four of the five prosecution witnesses were present on the Farm on March 5, 2015. They all testified as to their observations on that day. In addition to their observations, Inspector Lapping and Dr. Robertson provided the court with their expert opinions. In my view, the totality of the admissible trial evidence supports the following findings.
70On March 5, 2015, Rebecca Hurley was subject to a number of orders made pursuant to s. 13(1) of the OSPCAA, which can be briefly summarized as follows:
i. to have "Lady", a horse, examined by a veterinarian (order of June 4, 2014);
ii. to take a pooled horse fecal sample for analysis and deworm according to findings (order of May 2, 2014);
iii. to have the horses' hooves trimmed by an experienced "farrier" and return them to an appropriate length and shape (order of May 2, 2014);
iv. to have the teeth of 19 horses floated by a veterinarian to correct dental problems and abnormalities (order of June 4, 2014);
v. to have "Princey", a horse, examined by a veterinarian for respiratory issues and follow recommended treatment (order of June 4, 2014); and
vi. to provide all the horses with free choice access to good quality hay at all times (order of June 4, 2014).
71The evidence at trial supports the following findings with respect to the conditions of the animals on the Farm on March 5, 2015:
i. The twenty-four horses in the two paddocks did not have access to water. The water troughs were frozen. These horses were dehydrated as evidenced by: diminished saliva production and infrequent urination. Senior Inspector Michaud counted only twenty-five urine stains in the snow for the twenty-four horses on that day.
ii. The twenty-four horses in the two paddocks did not have access to sufficient food to meet their needs. There was no hay in the paddock which held twenty horses. There were remnants of hay in the paddock which held four horses. It must be stated that Inspector Lapping testified that on March 2, 2015, she observed some hay in both paddocks but not an excessive amount. There was evidence that there were at least five large bales of hay on the Farm, but the hay was near the barn and not accessible to the horses. The expert evidence was that horses also require access to salt in various amounts, but none was observed to be available to the horses on that day.
iii. The horses were acting in a lethargic manner and the horses had thinned in comparison to the improvements in body condition noted by Inspector Lapping in November 2014. A significant number of the horses (in the paddocks) were observed to be eating each other's manure. According to the experts, on occasion, a horse may eat manure, but Inspector Lapping said she had never witnessed it on such a scale. Dr. Robertson described it as abnormal.
iv. On March 5, 2015, Dr. Robertson would have examined the majority of the horses on the Farm. All of the horses examined presented with dental issues that required assessment and treatment. He found no evidence of recent dental care, including floating of the teeth. Given a horse's teeth grow continuously, the teeth must be filed down (i.e. floated) to permit proper chewing, eating, digestion and to avoid injury to the inside of the horse's mouth.
v. The horses had varying degrees of overgrown, damaged and irregular shaped hooves. Given that hooves grow continuously they must be regularly trimmed by a farrier to ensure a proper size and shape to avoid discomfort for the horse and the development of more serious foot health-related problems. In his testimony, Dr. Robertson candidly admitted that hoof care was not his area of expertise. On this issue, I relied mostly on the expert opinion of Inspector Lapping.
vi. The experts confirmed that a horse requires appropriate bedding and a resting and sleeping area. This was not provided to the horses on March 5, 2015. It was a cold winter day with snow on the ground. There was no bedding in either paddock where the horses could lie down or rest. The ground in one of the paddock shelters was covered with frozen manure. The shelter in the paddock with the 20 horses could not accommodate more than 3 horses lying down at the same time.
vii. "Lady", a horse, was in need in of pressing medical attention. The horse was suffering from a dental abscess that had formed a "draining tract" which means it was draining out of her left mandible though a sore on the skin. The evidence was that it was causing pain. This medical issue was at least 10 months old. On May 2nd, 2014, Inspector Lapping ordered Rebecca Hurley, pursuant to s. 13(1) of the OSPCAA to clean the wound under "Lady's" chin and provide appropriate wound care. On June 4th, 2014, the order was modified to have "Lady" examined by a veterinarian for, inter alia, injury to the lower jaw on the left side. On November 5th, 2014, Inspector Lapping had noted that the wound was still present and it was emitting a bad odour. I also found that "Lady" required dental treatment for other issues.
viii. "Tom", a horse, had a wound behind the left ear that was causing pain. The wound was likely caused by the horse's halter. Dr. Robertson estimated the age of the wound as approximately 3 to 5 days old, but possibly older. The wound was noticed by Inspector Lapping on March 2nd, 2015. "Tom" also required dental care and hoof care.
ix. There was one stallion in the barn that was in fair body condition but it did not have access to sufficient water. Inspector Lapping reported the stallion's stall to be unsanitary on March 2, 2015 because of a build-up of manure on the floor of the stall. However, there was little evidence on the sanitary condition of the stall on March 5, 2015.
x. On March 5, 2015, Senior Inspector Michaud observed that a goat on the Farm had no food or water. The little amount of evidence about the goat, notably its reported poor body condition, was weakened by the fact that none of the witnesses were qualified at trial to give expert testimony on goat care. It should be noted that all the counts in the Information are particularized to specifically reference horses. None of the counts speak about a goat.
72From May 2014 to February 2015, Rebecca Hurley had numerous interactions with the OSPCA with respect to the OSPCA orders as well as the care and the health of the horses on the Farm. In that period of time, Inspector Lapping observed Rebecca Hurley and the horses on the Farm on a number of occasions. This evidence and the totality of the trial evidence amply supports the following conclusions with respect to Rebecca Hurley: she was the owner of the horses; she kept custody of the horses on the Farm; she was responsible for and controlled the care for the horses; she clearly had knowledge of the medical, health and welfare problems of the horses on the Farm; and with respect to "Tom" she reasonably ought to have known of the injury behind the ear.
c) Conclusions with Respect to the Evidence
73There was substantial trial evidence with respect to the problems in the care provided to the horses and the health and welfare of the horses. That evidence clearly supports the following conclusions:
i. There was substantial evidence, beyond a reasonable doubt, to confirm multiple failures to comply with the orders issued by Inspector Lapping to Rebecca Hurley, including the failure: to have "Lady" seen by a veterinarian; to have the horses' hooves trimmed; to have the teeth of 19 horses floated; and to provide free choice access to hay.
However, in my view, the same cannot be said of the order related to "Princey" and the order related to the testing of pooled fecal samples. Even though these last two orders were extended on January 30, 2015, from which non-compliance could be inferred on that day, I did not find that the totality of the evidence, with respect to these two orders, rose to the required standard—proof of non-compliance beyond a reasonable doubt on or about March 5, 2015. There was simply insufficient evidence before the court with respect to these two orders.
ii. The evidence clearly established, beyond a reasonable doubt, that the horses were in "distress" on March 5, 2015. Without repeating all of the findings listed above, I would simply highlight the most substantive conclusions. The horses were in a state of being in need of proper care with respect to dental care and hoof care. The horses were in need of both food and water. The horses "Tom" and "Lady" were in need of medical care. "