Her Majesty the Queen v. Baker et al.

Indexed as: R. v. Baker

73 O.R. (3d) 132

[2004] O.J. No. 4102

Docket: C41485

Court of Appeal for Ontario,

Weiler, Feldman and Armstrong JJ.A.

October 12, 2004

Canadian Charter of Rights and Freedoms -- Unreasonable search or seizure -- Section 12(1) of Ontario Society for the Prevention of Cruelty to Animals Act authorizing "an inspector or an agent" of Society named in search warrant to enter named premises "either alone or accompanied by a veterinarian" -- Six members of Society named in warrant, a named veterinarian and two unnamed O.P.P. officers, attending when search warrant was executed -- Trial judge erring in holding that search warrant was invalid on basis that legislation only authorizes one agent or inspector of Society and one veterinarian to enter premises -- Interpretation Act (whereby singular includes plural) applying to interpretation of Ontario Society for the Prevention of Cruelty to Animals Act -- Number of persons involved in executing warrant being reasonable given potential presence of large number of animals in distress -- Presence of O.P.P. not rendering search unreasonable -- Search not violating s. 8 of Charter Canadian Charter of Rights and Freedoms, s. 8 -- Interpretation Act, R.S.O. 1990, c. I.11, s. 28(j) -- Ontario Society for the Prevention of Cruelty to Animals Act, R.S.O. 1990, c. O.36, s. 12(1). [page133]

An Inspector obtained a search warrant for the appellants' property under s. 12(1) of the Ontario Society for the Prevention of Cruelty to Animals Act (the "OSPCAA"). That section authorizes ". . . an inspector or an agent of the Society named therein to enter [any building or place other than a public place] either alone or accompanied by a veterinarian and inspect the building or place and all animals found therein for the purpose of ascertaining whether there is therein any animal in distress". Eleven officers of the OSPCA were named in the warrant, and when the warrant was executed, six members of the OSPCA (including the Inspector), a named veterinarian and two unnamed O.P.P. officers attended. Approximately 17 animals were seized and removed from the house and 40 animals were seized and removed from the barn. The appellants were charged with three counts of cruelty to animals under s. 446 of the Criminal Code, R.S.C. 1985, c. C-46. They challenged the search warrant on the basis that s. 12(1) of the OSPCAA only authorizes one agent or inspector of the OSPCA and one veterinarian to enter the premises.

The trial judge agreed. She found that the warrant was invalid and that the search violated the appellants' rights under the Canadian Charter of Rights and Freedoms. She ordered the evidence obtained as a result of the search excluded, and acquitted the appellants. On appeal, the Crown for the first time raised the application of s. 28 of the Interpretation Act. Section 28(j) states: "words importing the singular number . . . include more persons, parties or things of the same kind than one". The summary conviction appeal court judge held that the Interpretation Act applied, that the search of the appellants' premises was executed in a reasonable manner and that the appellants' Charter rights were not violated. He ordered a new trial. The appellants appealed.

Held, the appeal should be dismissed.

The Interpretation Act applies to the interpretation of the OSPCAA, and applying s. 28 of the Interpretation Act, whereby the singular includes the plural, would not give the OSPCAA an interpretation that is inconsistent with the context of that Act. The use of the word "alone" in s. 12(1), which authorizes an inspector or agent of the Society named in the warrant to enter the named premises "either alone or accompanied by a veterinarian", means "unaccompanied", and does not signify that there must be only one agent. The overall purpose of the OSPCAA, to assist animals in distress, would not be furthered if only one person from the OSPCA were permitted to enter premises accompanied, perhaps, by one veterinarian. Rather, the purpose of the OSPCAA is furthered if it is interpreted in a manner that allows more than one officer of the OSPCA to enter and search the premises. The search warrant was validly issued.

The Interpretation Act is a law of general application that applies whether it is raised or not. The appellants could point to no prejudice arising from the fact that the Crown raised this argument for the first time on appeal. The procedural requirement that only arguments raised before the lower court can be raised on appeal is not stringently enforced where it can be shown that no prejudice occurred.

Having regard to the information received respecting the animals on the farm in distress, the number of animals involved was potentially, and proved to be, significant. The number of persons from the OSPCA involved in executing the search warrant was reasonable. The O.P.P. officers were authorized to assist the OSPCA. They had been asked by the Inspector to be present in order to preserve the peace. Under s. 42(1) of the Police Services Act, R.S.O. 1990, c. P.15 ("PSA"), the duties of a police officer include preserving the peace, executing warrants that are to be executed by police officers and performing related duties. The OSPCA [page134] officers are peace officers under s. 11 of the OSPCAA, and the assistance of the O.P.P. in executing the warrant they had obtained could be considered a related duty under the PSA. As peace officers, the OSPCA officers were entitled to enlist the aid of unnamed police officers. The presence of the O.P.P. did not render the search unreasonable. The search did not violate the appellants' rights under s. 8 of the Charter.

The Summary Conviction Appeal Court did not err in allowing the Crown to argue against the appellants' Charter motion on appeal when the Crown had chosen to file no material in response to the appellants' Charter application at trial contrary to rule 30.05 of the Rules of the Ontario Court of Justice in Criminal Proceedings, SI/97-133. A judge has a discretion to hear argument even though there has been non-compliance with the rules.

APPEAL from a judgment of O'Connor J. of the Summary Conviction Appeal Court reported at [2004] O.J. No. 525, [2004] O.T.C. 148 (S.C.J.), allowing a Crown appeal from an acquittal by Morneau J. reported at [2003] O.J. No. 1837 (C.J.).

Cases referred to

Brown v. Durham Regional Police Force (1998), 1998 7198 (ON CA), 43 O.R. (3d) 223, 167 D.L.R. (4th) 672, 59 C.R.R. (2d) 5, 131 C.C.C. (3d) 1, 39 M.V.R. (3d) 133, 21 C.R. (5th) 1, [1998] O.J. No. 5274 (C.A.) [Leave to appeal to S.C.C. allowed (1999), 252 N.R. 198n]; Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local 324 (O.P.S.E.U.), [2003] 2 S.C.R. 157, 230 D.L.R. (4th) 257, 308 N.R. 271, 2003 SCC 42, 31 C.C.E.L. (3d) 1, [2003] S.C.J. No. 42; R. v. B. (J.E.) (1989), 1989 1495 (NS CA), 94 N.S.R. (2d) 312, 247 A.P.R. 312, 52 C.C.C. (3d) 224 (C.A.); R. v. Dumont (2000), 2000 16861 (ON CA), 77 C.R.R. (2d) 373, 149 C.C.C. (3d) 568, 6 M.V.R. (4th) 167 (Ont. C.A.); R. v. Fekete (1985), 1985 3475 (ON CA), 7 O.A.C. 152, 17 C.C.C. (3d) 188, 44 C.R. (3d) 92 (C.A.); R. v. Strachan, 1988 25 (SCC), [1988] 2 S.C.R. 980, 56 D.L.R. (4th) 673, 90 N.R. 273, [1989] 1 W.W.R. 385, 37 C.R.R. 335, 46 C.C.C. (3d) 479, 67 C.R. (3d) 87

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 8 Child and Family Services Act, R.S.O. 1990, c. C.11 Criminal Code, R.S.C. 1985, c. C-46, s. 446 Interpretation Act, R.S.O. 1990, c. I.11, ss. 1, 28 Liquor Control Act, R.S.O. 1990, c. L.18 Ontario Society for the Prevention of Cruelty to Animals Act, R.S.O. 1990, c. O.36, s. 12 [as am.] Police Services Act, R.S.O. 1990, c. P.15, s. 42 [as am.]

Rules and regulations referred to

Rules of the Ontario Court of Justice in Criminal Proceedings, SI/97-133.

Douglas A. Grace, for the appellant.
Susan G. Ficek, for the respondent.

[1] WEILER J.A.: -- In March 2002, Inspector Dan Usas obtained a search warrant for the appellants' property under the provisions of s. 12(1) of the Ontario Society for the Prevention of Cruelty to Animals Act, R.S.O. 1990, c. O.36 (hereinafter the [page135] "OSPCAA"). That section authorizes ". . . an inspector or an agent of the Society named therein to enter [any building or place other than a public place] either alone or accompanied by a veterinarian and inspect the building or place and all animals found therein for the purpose of ascertaining whether there is therein any animal in distress".

[2] Although some 11 officers of the OSPCA were named in the warrant, when the search warrant was executed at the appellants' premises, six members of the OSPCA, including Inspector Dan Usas, a named veterinarian and two unnamed O.P.P. officers attended. Over the next three-and-a-half hours, approximately 17 animals [See Note 1 at the end of the document] were seized and removed from the house and 40 animals were seized and removed from the barn. The appellants were charged with three counts under s. 446 of the Criminal Code, R.S.C. 1985, c. C-46, generally known as cruelty to animals.

[3] The appellants challenged the search warrant on the basis that the section of the OSPCAA only authorizes one agent or inspector of the OSPCA and one veterinarian to enter the appellants' premises.

[4] The trial judge agreed. She held that the warrant did not authorize the attendance of O.P.P. officers on the appellants' property and that there was no other basis for them to be on the appellants' property. She further found that there was no statutory authority to name additional employees of the OSPCA in the warrant. As a result, she held the warrant to be invalid and the search that took place to be a violation of the appellants' Canadian Charter of Rights and Freedoms rights. She held that this was a serious breach and ordered that the evidence obtained as a result of the search be excluded. The Crown presented no further evidence and the appellants were acquitted.

[5] On appeal, the Crown for the first time raised the application of s. 28 of the Interpretation Act, R.S.O. 1990, c. I.11. Section 28(j) states:

28(j) words importing the singular number . . . include more persons, parties or things of the same kind than one . . .

Section 1 of the Interpretation Act states:

1(1) The provisions of this Act apply to every Act of the Legislature contained in these Revised Statutes or here-after passed, except in so far as any such provision,

(a) is inconsistent with the intent or object of the Act; [page136]

(b) would give to a word, expression or provision of the Act an interpretation inconsistent with the context; or

(c) is in the Act declared not applicable thereto.

[6] The Superior Court Appeal Judge ("SCAJ") held that the Interpretation Act applied, found that the search of the appellants' premises was executed in a reasonable manner and held that there was no breach of the appellants' Charter rights. He ordered a new trial. The appellants appeal from that decision.

[7] The appellants raise the following issues:

1. Was the SCAJ correct in his application of the Interpretation Act to the OSPCAA with the result that the search warrant was valid?

2. Was the Crown entitled to raise the Interpretation Act for the first time on appeal?

3. Was the SCAJ correct in concluding that the search of the appellants' premises did not violate their rights under s. 8 of the Charter?

(a) Even if the warrant was valid, was the search conducted in an unreasonable manner?

(b) Did the SCAJ simply substitute his own opinion for that of the trial judge respecting the validity of the search warrant?

4. Did the Summary Conviction Appeal Court err in allowing the Crown to argue against the appellants' Charter motion on appeal when the Crown had chosen to file no material whatsoever in response to the appellants' Charter application at trial?

1. What is the Correct Interpretation of [Section 12](https://www.canlii.org/en/on/laws/stat/rso-1990-c-i11/latest/rso-1990-c-i11.html#sec12_smooth) of the [OSPCAA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-i11/latest/rso-1990-c-i11.html)?

[8] The appellants agree that the Interpretation Act applies to the interpretation of the OSPCAA. The appellants submit however that applying s. 28 of the Interpretation Act, whereby the singular includes the plural, would give the OSPCAA an interpretation that is inconsistent with the context of the Act. They submit that the exception in s. 1 of the Interpretation Act applies.

[9] I would disagree that the intention of the OSPCAA is to exclude the plural from the singular. For example, the opening words of s. 12(1) of the OSPCAA refer to obtaining a warrant where there are grounds for believing there is "an animal" that is [page137] in distress. The word "animal" here clearly includes more than one animal. At a later point in the section, the inspector is authorized to inspect "all animals found" in the premises to ascertain whether "any animal" is in distress.

[10] The appellants point out that s. 12(1) authorizes "an inspector or an agent of the Society named" in the warrant to enter the named premises "either alone or accompanied by a veterinarian". The SCAJ stated the word "alone" is a word importing the singular and should be interpreted to include the plural such as "together" or some other appropriate plural version. The appellants submit that the use of the word "alone" is an expression of intention to exclude more than one inspector or agent from executing a warrant under the OSPCAA and that s. 28(j) of the Interpretation Act applies.

[11] I would draw no such conclusion from the use of the word "alone". The purpose of s. 12 of the OSPCAA is to make it clear that an inspector or agent of the OSPCA, in other words a layperson, can determine that an animal is in "distress" and remove the animal. A veterinarian, who would be an expert in determining the health of an animal, may accompany the inspector but the section does not require that an expert be present. The section provides that an agent may attend either accompanied by a veterinarian or unaccompanied. In my view, the word "alone" in the context means unaccompanied and does not signify that there must be only one agent, i.e., singular versus plural.

[12] Obviously, as noted by the SCAJ, if only one agent of the OSPCAA is authorized to search premises and examine animals, that examination could take much longer depending on the number of animals found on the premises, as would the collection of evidence relating to their distress. In addition, given the possibility of the presence of animals at more than one location on the premises, an opportunity could arise for evidence to be secreted if only one officer accompanied by a veterinarian were allowed to be present. The overall purpose of the OSPCAA, to assist animals in distress, would not be furthered if only one person from the OSPCA were permitted to enter premises accompanied, perhaps, by one veterinarian. Contrary to the submission of the appellants, I would hold that the purpose of the OSPCAA is furthered if it is interpreted in a manner that allows more than one officer of the OSPCA to enter and search the premises.

[13] Although I am of the opinion that on a proper interpretation of the OSPCAA, more than one officer or agent of the OSPCA may be authorized to search the appellants' premises, I note that the warrant issued in this case did not make it clear, as it should have, who was responsible for the search. See [page138] R. v. Strachan, 1988 25 (SCC), [1988] 2 S.C.R. 980, 46 C.C.C. (3d) 479, at p. 997 S.C.R., p. 492 C.C.C. Similarly, the warrant lists 11 officers of the SPCA by name, or practically everyone in the office, and thereby undermines the effectiveness of the naming requirement. See Strachan, supra, at p. 997 S.C.R., p. 492 C.C.C.

[14] That said, the facts of this case suggest that Inspector Usas was in charge of the search. He testified that he oversees the work of the OSPCA agents, that he attended at the courthouse in London to obtain the warrant, that he contacted the O.P.P. to assist in executing the warrant by keeping the peace, that he asked the appellants for the keys to the barn which was locked and, after some discussion, when he received the key, that he unlocked the barn for the other investigators. I would reach the same conclusion as in Strachan: namely, that the search warrant was validly issued.

2. Can the Crown Raise on Summary Conviction Appeal an Issue it Did Not Raise at Trial?

[15] If the SCAJ had upheld the lower court's decision without taking into account the potential impact of the Interpretation Act, he would arguably have committed an error of law. The Interpretation Act is a law of general application that applies whether it is raised or not. The appellants can point to no prejudice arising from the fact that the Crown raised this argument for the first time on appeal. The procedural requirement that only arguments raised before the lower court can be raised on appeal is not stringently enforced where it can be shown that no prejudice occurred. See by analogy the Supreme Court's decision in Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local 324 (OPSEU), 2003 SCC 42, [2003] 2 S.C.R. 157, 230 D.L.R. (4th) 257. The SCAJ not only had the power but the responsibility to implement the Interpretation Act in interpreting the OSPCAA. The interpretation of the SCAJ also advanced the purposes of the OSPCAA.

3. Did the Search Warrant Violate the Appellants' Section 8 Charter Rights?

[16] The appellants submit that even if the warrant was valid, the search was conducted in an unreasonable manner because of the number of persons present and because the police were not authorized to be present.

[17] The conclusion of the judge at first instance that the execution of the warrant was unreasonable was based on her erroneous conclusion in law. She incorrectly held that the number of persons authorized to execute the warrant exceeded the statutory [page139] authority under the OSPCAA. As a result, no deference is owed to her finding that the execution of the warrant was unreasonable and breached the appellants' right to be free from unreasonable search and seizure under s. 8 of the Charter.

[18] A search warrant must be executed in a reasonable manner having regard to all the circumstances. Having regard to the information received respecting the animals on the farm in distress, the number of animals involved was, potentially, and proved to be, significant. I am not prepared to hold that the SCAJ erred in his conclusion that the number of persons from the OSPCA involved in executing the warrant was reasonable.

[19] The more difficult question is whether the police were authorized to assist the OSPCA. According to the evidence at trial, the O.P.P. officers did not participate in the search and seizure of the animals. They had been asked by Inspector Usas to be present in order to preserve the peace. The female appellant had questions about the authority of the OSPCA to conduct the search and the police assisted in confirming with the owners that the search warrant gave the OSPCA authority to search. Inspector Usas also testified that the police remained on the property until they were called away to another incident but they returned to the property because it was his understanding there was a confrontation in the house.

[20] At common law, the police have the power to detain an individual without a warrant to prevent an apprehended breach of the peace but the apprehended breach of the peace must be imminent and the risk substantial. The mere possibility of some unspecified breach will not suffice: Brown v. Durham Regional Police Force (1998), 1998 7198 (ON CA), 43 O.R. (3d) 223, [1998] O.J. No. 5274 (C.A.). In this case, however, the appellants' premises were being searched pursuant to a lawful warrant.

[21] Under s. 42(1) of the Police Services Act, R.S.O. 1990, c. P.15 (hereinafter the "PSA"), the duties of a police officer include preserving the peace, executing warrants that are to be executed by police officers and performing related duties. The OSPCA officers are peace officers under s. 11 of the OSPCAA, and the assistance of the O.P.P. in executing the warrant they had obtained could be considered a related duty under the PSA. As peace officers, the OSPCA officers were entitled to enlist the aid of unnamed peace officers: See Strachan, supra; R. v. Fekete (1985), 1985 3475 (ON CA), 17 C.C.C. (3d) 188, 44 C.R. (3d) 92 (C.A.); R. v. B. (J.E.) (1989), 1989 1495 (NS CA), 52 C.C.C. (3d) 224, 94 N.S.R. (2d) 312 (C.A.) (involving an unnamed social worker who assisted in the execution of a warrant).

[22] The appellants point out that the duty of a peace officer to be present while provincial officials execute a search warrant has been made express in certain provincial statutes such as the [page140] Liquor Control Act, R.S.O. 1990, c. L.18 and the Child and Family Services Act, R.S.O. 1990 c. C.11 ("CFSA"). As a result, the appellants submit that if the legislature had intended the police to assist the OSPCA officers in the execution of their warrant, the legislation would have said so. The appellants' submission overlooks the fact that, unlike the examples given above, the legislation here makes the OSPCA officers peace officers. The Liquor Control Act and the CFSA do not contain a similar provision. Here, just like any other peace officer named in a search warrant, Inspector Usas was entitled to enlist the aid of unnamed officers.

[23] It may be that, as pointed out by the trial judge, the number of persons present from the OSPCA to execute the search warrant made the presence of the O.P.P. superfluous. Alternatively, the police could have waited on the highway until called if necessary. On the other hand, the privacy interest of the appellants was already the subject of a search warrant. No evidence was adduced that the presence of the O.P.P., in addition to the OSPCA officers, occasioned any prejudice to the appellants or that their presence resulted in a greater loss of privacy. The search itself was conducted in a supervised and controlled manner. While it may have been preferable for the O.P.P. to wait on the highway, I am not prepared in these circumstances to hold that the SCAJ erred in concluding that the presence of the O.P.P. did not render the search unreasonable or a violation of the appellants' Charter rights. He did not merely substitute his opinion for that of the trial judge but engaged in a careful and detailed analysis of the trial judge's reasons.

4. Did the Summary Conviction Appeal Court Err in Allowing the Crown to Argue Against the Appellants' Charter Motion on Appeal When the Crown had Chosen to File no Material Whatsoever in Response to the Appellants' Charter Application at Trial Contrary to [Rule 30.05](https://www.canlii.org/en/ca/laws/regu/si-97-133/latest/si-97-133.html#sec30.05_smooth) of the [Rules of the Ontario Court of Justice in Criminal Proceedings](https://www.canlii.org/en/ca/laws/regu/si-97-133/latest/si-97-133.html)?

[24] The appellants concede that the decision in R. v. Dumont (2000), 2000 16861 (ON CA), 149 C.C.C. (3d) 568, 77 C.R.R. (2d) 373 (Ont. C.A.) holds that a judge has a discretion to hear argument even though there has been non-compliance with the rules. The SCAJ held that it was within the discretion of the trial judge to exercise her discretion to allow the Crown to argue its position. This ground of appeal was not pressed in oral argument.

[25] For the reasons given, I would dismiss the appeal.

Appeal dismissed. [page141]

Notes

Note 1: The SCAJ held that 25 animals were seized from the house. The respondent's factum relies on the evidence of Dan Usas that about 17 animals were removed from the house.