Ontario Court of Justice

Date: June 22, 2015

Court File No.: Municipality of Grey Highlands in the County of Grey 13 176

Between:

Ontario Society for the Prevention of Cruelty to Animals

— AND —

Lynda Smith

Before: Justice of the Peace James Ziegler

Heard on: April 28th, 29th, 30th and May 1st and 2nd, September 25th and 26th, November 20th and 26th and December 16th, 2014

Reasons for Judgment released on: June 22nd, 2015

Counsel:

• L. Fritzley — counsel for the prosecution
• The defendant Lynda Smith on her own behalf

JUSTICE OF THE PEACE ZIEGLER:

Charges

[1] The defendant Lynda Smith is charged under the Ontario Society for the prevention of Cruelty to Animals Act, R.S.O. 1990, Chapter 0.36 with four counts alleged to have been committed on March 6th, 2013, as set out in an Information sworn April 11th 2013 and comprising: one count of cause animals to be in distress, contrary to section 11.2(1) and thereby an offence under 18.1(1)(c); and one count of failing to comply with the prescribed standards of care for said animals contrary to section 11.1(1) by failing to provide adequate food and water and thereby an offence under section 18.1(1)(b); and one count fail to comply with an order served under section 13(1) and thereby an offence under section 18.1(1)(d); and one count of being the person who owns or has custody of animals, to wit horses did fail to provide care necessary for their general welfare contrary to section 11.1(1) and thereby an offence under section 18.1(1)(b). These charges are more fully outlined in paragraph 2 below which is a copy of the first page of Information #13 176.

[2] [Information details omitted]

[3] This trial comprised the hearing of detailed evidence on 9 days of trial spread over the months of April, May September and November 2014 with submissions heard on December 16th 2014. I reserved my decision until June 22nd 2015.

Background

[4] I heard evidence and I am satisfied that the following facts are true in respect to the background leading up to the allegations presently before the court.

[5] Lynda Smith is the sole owner of the farm located at 685391 Sideroad 19 in the Municipality of Grey Highlands, County of Grey, comprised of approximately 100 acres.

[6] On this farm she had built two barns with stalls for horses, the large barn consisting of a large attached indoor arena and many stalls, the smaller barn consisting of over twenty stalls without an arena. It is a relatively updated horse operation with heated tack room, washrooms, viewing area for the arena, and was designed by Lynda Smith in respect to which she takes some pride.

[7] There are paddocks outside the barns, a Quonset hut building for the storage of hay, water troughs for the outside horses. Inside, there is provision for buckets to be hung in stalls to water the horses, some hay storage and bedding storage to be closer to the stalls, a feed room where minerals and oats and supplements can be stored, and it is designed to make it relatively easy to operate a fairly large equestrian facility.

[8] Lynda Smith just prior to these charges being laid kept approximately 43 horses in her facility. She boarded some horses, approximately 9 horses boarded but most of the horses were owned by her; many were rescue horses that she brought in to help them in their final months or years of life; many horses if not the majority of her horses were over 20 years old. She relied on volunteer and paid help which varied according to the time of year and the number of horses she cared for.

[9] Lynda Smith has been in the equestrian business for over 30 years and she was well known in the equestrian community and proud of her rescue operation taking in 2 or 3 rescue horses per year.

[10] It is common knowledge that 2012 was a bad hay year, due to a warm dry winter in 2011-2012, hay and other feed crops were reduced considerably from what was obtained in other years and in fact, Ontario's hay was in such short supply in the fall of 2012 and winter of 2012-2013 that hay was brought in to assist Ontario farmers to overcome the shortfall, donated by farmers from out West, which was a reciprocal thing for Western farmers to do as Ontario had helped them a few years prior to that when they experienced a shortfall.

[11] Prior to the devastating winter of 2012/2013 Lynda Smith had developed an arrangement with a young equestrian, riding instructor and trainer, Leslie Curran. Curran assisted Lynda in the care of Lynda's horses and had found volunteers to assist in the endless need for labour to feed groom and exercise the 40 some horses on this property.

[12] In February of 2012 Curran suffered an injury and by August 2012 could no longer provide the necessary personal involvement in the horse operation that Lynda Smith had come to rely upon. As a result there was a falling out and Lynda found herself with less help. She tried to manage and care for her horses with very little outside assistance in the winter of 2012/2013.

[13] As a result of this change in circumstances and in conjunction with hay which was in shorter supply and possibly of less nutritious quality, Lynda Smith found herself caring for her many horses with fewer outside resources in winter conditions.

[14] Complaints of care and standards were made to the Ontario Society for the prevention of Cruelty to Animals and as a result an investigation was commenced in February 2013 and March 2013 when charges were laid.

Testimony of OSPCA Agent Joleen Comrie

[15] Agent Joleen Comrie from the OSPA visited the farm of Lynda Smith on February 13th 2013 in response to a complaint about the care of horses. Comrie worked for the OSPCA since May 2011 and she investigated animal cruelty neglect and abuse.

[16] I find the testimony of Agent Comrie to be factual in nature. Her testimony was consistent, did not waiver under cross-examination and she did not exaggerate or embellish her training or qualifications. Her testimony was based on her observations and I accept them as accurate recollections of what she observed.

[17] Comrie attended at the Lynda Smith farm at 685391 Sideroad 19 in the Municipality of Grey Highlands and met with Lynda Smith, Comrie possibly had a volunteer accompanying her, and toured the facility with Lynda Smith.

[18] Comrie saw Smith in the main barn mucking stalls. They went outside the main barn and Comrie observed two horses in a paddock, Arabians that looked aged, they were blanketed and thin but had hay and water. They then went behind the Boarder Barn and she observed approximately 20 horses that had adequate hay and water, 3 horses were in excellent shape, 2 horses had poor body condition, Debbie and Vanity, both Arabs, the rest of the horses seemed okay.

[19] Then they went into the Boarder Barn and Comrie observed approximately 10 to 15 horses that were substantially thinner than the horses outdoors, they had no hay and minimal water covered in ice. Smith provided hay while they were there. The stalls could have used more bedding. The horses were becoming wet; more bedding would have made the horses dryer.

[20] From the Boarder Barn they went into the Main Barn where there were 7 to 10 horses mostly Arabians. Most were very thin, all had water and some had hay. Smith provided hay while they were there. Scud a gray stallion, Milo and Whiz were emaciated, they could die, and they were basically dying according to Comrie.

[21] During this visit, Smith played Comrie a recording from a voice mail by Leslie Curran; which was a rant, threatening Smith, her horses and business.

[22] As a result of these observations, Agent Comrie issued an order on February 13th, 2013, entered as Exhibit #1. The Order issued under the OSPCA states "In accordance with the authority contained in subsection 13(1) of the act, you are hereby ordered to take the following action concerning the animal(s) listed which are belied to be in distress. Then the order required Lynda Smith to do the following:

1. All horses must be provided with an adequate amount of good quality feed daily, allowing them to maintain a healthy body condition;

2. All horses must have access to clean potable water at all times (ice free);

3. All horses in stalls must have an adequate amount of dry bedding at all times;

4. All horses must have feet trimmed by a qualified farrier on a regular schedule (i.e. 6-8 weeks apart);

5. A one week supply of feed must be kept on the property at all times;

6. All recommendations by attending veterinarian must be followed.

[23] The above order was to be complied with by February 14th 2013 by 12:00 p.m. and #4 by February 27th 2013 at 12:00 p.m.

[24] Agent Comrie attended again on March 7th 2013 to check compliance of the orders. She testified that she had intended to attend on March 5th but her truck broke down. She was made aware of activity on the Smith farm [there was a media event on March 6th and protesters, concerning which Comrie did not testify about] but was made aware the order was not being complied with.

[25] Comrie arrived at 156 p.m. on March 7th 2013, there was a CTV News Truck at the side of the road but she did not speak to them. She met Smith who was with Brenda Thompson from Whispering Hearts Horse Rescue with Brenda's daughter-in-law Debbie who were cleaning stalls.

[26] Comrie toured the farm with Smith and observed in the Main Barn 20 to 30 small square bales of hay, 1 large bale and all horses had access to ice free water and some hay.

[27] She said the outdoor horses had no access to hay although they had water and she noted some were thinner than she saw on her February 13th visit. She took photographs and a full inventory of the horses, which were to be kept, which were to be surrendered to rescue or euthanize, and which were boarder horses. She stated it is Smiths obligation to ensure boarder horses have feed, bedding, are turned in and out and had water, as far as she knew because Smith had control of the facility and Smith never said the horses were to be cared for by anyone but her.

[28] Comrie observed the Boarder Barn stalls were not cleaned at all, had little or no bedding and mostly wet manure. She noted horses' hooves looked decent except for Nikki. She observed that some horses had lost weight and were not as well groomed, dirtier. She discussed these conditions in reference to the photographs she took and entered as Exhibit number 2.

[29] In cross examination when asked by Smith how is distress defined, Comrie replied that the OSPCA defines distress as being in need of adequate feed, water shelter, care, or being deprived of adequate medical attention, or being subject to unnecessary hardship, privation, or neglect. She said most of the Smith horses were in good body condition, several were adequate and several emaciated on February 13th. Comrie testified that the horses were thinner and dirtier by March 7th when she took the pictures in exhibit 2.

[30] There are 17 initial pictures in Exhibit number 2, then 57 pictures identified as 13 91) through (57) then 19 enlarged pictures identified as Exhibit 2 (a) through (s).

[31] The enlarged pictures shows minimal feed in the main barn 2 (c), poor body condition of some horses 2(d) &(j) &(k) &(l) & (m) & (n) & (r) & (s), manure crusted bodies of some horses 2 (d) &(m) & (n)& (s), emaciated condition of some horses 2(n) &(s) & (r) &(l)& (j), ice in the water 2(e), stalls with no bedding 2(j) &(n)& (s) and a horse with main coated in burrs 2(l), as well as "cribbing", where horses chew on wood surrounding stalls 2(o)& (p) & (q). Other pictures show the minimal amount of supplemental feed in the main barn, 2 (f) & (g) & (h) & (i)

[32] As a result of these observations, Agent Comrie revoked her previous February 13th order and issued a new order specifying a greater feed, water & care regimen to be followed under eleven different numbered lines of actions to be taken.

Testimony of Inspector Jennifer Bluhm

[33] Jennifer Bluhm is an Inspector for the OSPCA with jurisdiction in the Bruce and Grey municipalities. She is the senior inspector for the West. She supervises investigations throughout Bruce and Grey in regards to animal welfare.

[34] Inspector Bluhm outlined circumstances that brought Smith's horse farm to the attention of the OSPCA, including a complaint from an individual saying horses had died recently and a call from Smith herself on February 5th 2013 to ask Bluhm what should be done with a horse that cannot stand [Joey]. Bluhm told her to have a vet attend and make individual recommendations for each horse. Bluhm asked her if she blanketed thin horses and Smith said she could and would feed them separately. Bluhm spoke to Dr. Gallagher on February 13th. She testified that the OSPCA does not have its own veterinarian but if an individual does not obtain help from a vet then the OSPCA would inspect and order a vet if needed.

[35] Inspector Bluhm testified that she cautioned Smith on March 8th that charges under the OSPCA may be laid, and if so it would be in approximately one month before that would happen and they would be in respect to the neglect of the animals on her property. After a voir dire the Court ruled the statements made by Smith were voluntary and the court heard Smith agreed in the discussion on March 8th with Bluhm that the stalls were not clean on March 6th and there was no water in the buckets [but alleged it had been dumped by the Ladies [who invaded her farm].

[36] Inspector Bluhm took note of the condition of the stalls and water on March 8th, still ice in the outdoor trough, horses still needed grooming, and she noted thin horses which were of concern to her and the lack of water in the buckets [two days after the event on March 6th]. She said most horses were in thin body condition.

[37] Smith questioned Bluhm on the age of her horse Vanity [age 31] and Inspector Bluhm replied that age is not a disease; her concern was the horse had not been blanketed, was emaciated and frail and fragile. She felt the horse needed to be separated from other horses. Smith questioned Bluhm on this issue of a horse getting upset over a blanket if not used to it and Bluhm replied all horses are different.

[38] Smith asked Bluhm if Vanity was standing and looked comfortable. Bluhm replied she was standing but her posture appeared uncomfortable, she was by herself and not mixing.

[39] Smith suggested separating an older horse would cause stress and Bluhm replied that she does not agree. The horse she observed should be separated insulated from others with free hay and no competition. Vanity died that night.

[40] Smith questioned Bluhm over the amount of water in the trough with ice in it. Bluhm replied there was a limited amount of water in the bottom of the trough [under the ice].

[41] Inspector Bluhm testified that on February 13th Dr. Gallagher had confirmed he had euthanized more than one horse that day and not all were old. This concerned her.

[42] Smith suggested to Inspector Bluhm hat she fed the horses selenium to supplement the problem of the poor quality hay. Bluhm pointed out here was no improvement from February 13th order to Mach 6th inspection when she was feeding them selenium. And in respect to it being a problem with the hay, Bluhm disagreed pointing out that the horses had improved by April 18th but Smith was still feeding them the same hay.

[43] Inspector Bluhm testified that on April 18th she revoked all previous orders and narrowed the orders down to one group of typed orders. By May 10th Inspector Bluhm revoked all orders against Smith because conditions had improved and Smith's horses were under the care of Dr. Dirsch who had confirmed the horses were under his supervision. At this time the number of horses on the farm had been reduced to 11 or 12 animals including one boarder. The next follow up inspection occurred October 31st 2013 and was uneventful.

[44] There was some testimony about the difference in veterinarians opinion as to whether to euthanize some of the older stallions or not, and Smith was quite proud that the stallions were improved with proper feeding and care and did not have to be euthanized. Opinion of Dr.Stanglmeier dated March 10 2013 entered as Exhibit # 16 that states Smith's stallions can be improved in their body scoring with proper feeding and care and do not have to be euthanized.

[45] I find that the testimony of Inspector Bluhm was clear and concise, she was professional in her dealings with Lynda Smith and she treated her respectfully throughout her dealings with her in 2013, and was consistent in her testimony and cross examination. She explained her differences in opinion from that of Smith to the satisfaction of the court and I accept the truthfulness of her testimony. Her treatment of Smith by revoking all orders when Smith had improved conditions at the farm for her horses and had engaged the supervision of a veterinarian, shows to me that Bluhm acted in a professional and considerate fashion while discharging her obligations to ensure the welfare of the animals.

Testimony of Dr. Mark B. Gallagher

[46] As a result of viewing Dr. Gallagher's had written C.V. filed as Exhibit # 18 and his testimony regarding his practice of large animal medicine where he estimates seeing 1000 horses per year I qualified him as an expert on the health condition, maintenance and care of horses.

[47] Dr. Gallagher started doing work for Lynda Smith in 2008. He was at her farm 1 to 2 times per year, a lot of it on an emergency basis. He assumed she used other vets because with a farm that size a vet would typically be there once a week and if horses are ridden they need a bit more care.

[48] The farm was a natural operation, horses ran loose in the summer, and they looked healthy but not good looking cosmetically due to natural.

[49] Dr. Gallagher was at the Smith farm in September 2012 on a "choke" where feed caught in esophagus and it was the first time there in 1 & ½ years, but called to euthanize an older horse a couple of weeks later. Shortly after that he was called by Dr. Hill in early October and Dr. Hill felt some of the horses were overly thin or had unusually thin body condition, so he said he would check.

[50] Dr. Gallagher visited the smith farm on October 23rd 2012 and found some of the old horses had poor body condition. He suggested the addition of forage cubes, alfalfa plus concentrated grain and a mineral supplement. He recommended ¾ bale of hay per horse per day be made available. He said the pasture was poor that year across the whole region. He also noted a lot of the horses had longer cracking hooves.

[51] In his opinion, older horses in winter get cold and if unable to gain weight they start using their muscle to survive. One option is to euthanize them before that happens but Smith did not want to euthanize she wanted to give them a chance. He said each horse should have water available at all times, a salt lick available and 2/3 to ¾ of a small bale of hay per day [30 lb bale].

[52] Smith had not wormed them in a while and he suggested a broad spectrum de-wormer. She said she understood and would get started on the suggestions. He was out for a boarder horse end of October or beginning of November and saw hay cubes present and wormers, and grain. He was out again New Year's Eve to euthanize a horse unable to rise and euthanized a total of 6 horses between January and February and they were all old except one. He was concerned in general that the condition of the horses appeared to be deteriorating.

[53] He noted she did not have a lot of help as he did not run into anyone doing barn chores and it was a large area to cover. He was concerned with the younger horse death and had tests done which was muscle deficiency and poor dieting. Lack of vitamin & selenium added to draught reduced vitamin E. it takes months to get vitamin E as low as .077. They set up a time on February 7th but he went and could not find her so rescheduled. February 20th he talked with OSPCA and told them nutritional deficiencies may be playing a part.

[54] He attended the farm on March 4th for a boarder horse, he noted things were not in good shape, he did not see hay there and things were dirty. Inside stables needed cleaning and bedding and he did not see that water buckets had anything in them in the 5 or 6 stalls he passed to get to the horse Crown. He decided to attend March 6th to follow up. Georgina Ramage showed Dr. Gallagher the only selenium supplement which was originally purchased. She moved her horse back to her farm. He decided Dr. Hill and he should do a serious evaluation of the farm together. Activists had ambushed her that afternoon. Both doctors arrived around 6 or 630 p.m.

[55] The two Doctors and Smith discussed and said they should document the condition of all of the horses. There were 41 horses on the farm on March 6th. A large group was out in the arena, 14 horses in the main barn being many stallions and geldings. 9 horses in the smaller barn [boarder horses]. The remaining mares were in the outdoor area.

[56] The two doctors use a different body condition scale, he uses 1 to 9, Dr. Hill uses 1 to 5 and there is some discrepancy between the two of them.

[57] Dr. Gallagher said there were 18 horses in loose housing with no individual feeders, but Smith would put flakes out for many opportunities, there was a lick, the water buckets tended to be frozen and not enough; the horses had not been groomed. He was concerned with burrs which can get in the eye.

[58] There were four bales available but not being fed; for water the ideal is free choice at all times, most horses consume 5 to 10 gallons per day. It is adequate if you feed water two to three times per day if not freely available.

[59] There was not water available in the smaller barn. Any water available was frozen, the barn is uninsulated. [The larger barn retained some heat]. He did not see any food available and the stalls were dirty and un-bedded. The boarder horses were younger and in better shape. Hay was short going for 4 to 6 horses per bale.

[60] No bedding and dirty stalls is a lack of comfort. Horses won't lay down, foot comfort could get thrush, if lay down cold they'll burn more calories.

[61] For the 14 horses in the main barn it was the same conditions, no water in buckets and no hay present. The stalls were dirty and un-bedded. Horses were thin [2 to 4 range]. Dr. Gallagher examined some of the pictures in Exhibit 2 and noted lack of grooming, possible lice, raw areas around legs, and looking hungry. Wood chewing [cribbing] could be fibre deficiency, boredom or behavioural. The chewing is not in a lot of the barns he attends. Hooves don't look trimmed over 10 weeks. He was concerned that the media uproar had been earlier in the afternoon and nothing had been done for the horses after 600 p.m.

[62] Dr. Gallagher said Smith was upset about being violated by the public but the concern did not seem to be for the horses. He said we recommended water at all times, and enough hay probably doubled, our feeling was there was too many horses on the property for her to handle, we recommended all boarder horses off the property and call rescue organizations to help remove some horses. She seemed in agreement that it was overwhelming and too much.

[63] Dr. Gallagher said there was not enough food on hand for 41 horses; not appropriate amounts of water; condition of stalls were not appropriate for the resting of the horses; and the conditions on the farm were not good enough for the welfare of the horses on that day. He said some of the body conditions of the horses were worrisome and not adequate for that time of year.

[64] Dr. Gallagher agreed that some of the horses were being neglected as they did not have enough food and water and there was not enough food on the farm on March 6th 2013. There was enough water.

[65] Dr. Gallagher was shown pictures taken March 8th by Jennifer Bluhm and entered as Exhibit 11; he said 11B showed a horse malnourished and commented on thinness. Ex 11 A showed caked manure, long hooves, prominent hip ad ribs. Ex 2r showed long hair and thin horse, and Ex 2 #54 shows an uncomfortable horse probably working through muscle.

[66] At the start of his testimony Dr. Gallagher said that between 2008 to 2012 when asked if he was Lynda Smith's only vet that he assumed she used other vets because with a farm that size [if he were the only vet] he would typically be there once a week, and if ridden they need [even] a bit more care. [The Court notes that vets cost a considerable amount of money and if once a week visitation is typical for a horse farms this size it would add a sizable amount of cost to the operation].

[67] Dr. Gallagher was consistent in his cross examination and his testimony in chief was not impugned. In re-examination he said the draught hay in 2012 caused other horses to be thinner at other farms but there were not any in the condition as found at Smith's farm.

Testimony of Dr. Angie Hill Veterinarian

[68] Dr. Angie Hill has practiced veterinary medicine since 2006. Since 2011 she has practiced exclusively in the treatment and care of horses with the Blue Mountain Veterinary Services clinic. There are 6 veterinarians at the clinic and she is the only vet seeing horses. She sees 700 to 800 horses per year and has 300 to 350 clients. I qualified her as an expert in the health maintenance and care of horses.

[69] Dr. Hill testified that she attended the farm of Lynda Smith in September 2012, February 2013 and March 2013. She was not under contract with the OSPCA and never worked for the OSPCA. She attended at the Smith farm in September 2012 because Dr. Gallagher was not available and Lynda Smith advised that she had an 8 year old Arabian mare that was down and could not get up.

[70] Dr. Hill testified that this is unusual for a young horse to be down and not able to hold herself upright, this is usually a horse over 20 years old in winter and geriatric. Dr. Hill gave the horse known as Chevy intensive care on September 30th. She described the horse as emaciated, very thin.

[71] The horse initially responded well to treatment and was put in a sling set up gave her medications and she was hungry, ate drank and perked up. On the third day she went downhill again, there were no resources to keep her upright, needed 3 to 4 people to get her into a sling. She was euthanized on October 2nd.

[72] Blood work was down and Dr. Hill speculated that she had muscle degradation; her muscles were breaking down and deteriorating into her blood stream. At the request of Lynda Smith Dr. Hill did a walk through with her and examined between 18 to 25 horses.

[73] Dr. Hill's opinion on her examination of the 18 to 25 horses on the Smith farm after Chevy was euthanized on October 2nd 2012 was that 7 to 8 were very thin over age 25 and would not survive the winter in her opinion. They discussed dentistry, foot care and adding nutrition. No arrangements were made as Dr. Gallagher was her regular vet.

[74] In February 2013 Dr. Hill was called again as she was covering for Dr. Gallagher and Smith had a horse down. Hill attended Saturday February 23rd 2013 for a geriatric mare close to 30 by the name of Faith [it was later clarified in cross-examination that this horse was actually named Ally, not Faith]. She was very thin, had a heart murmur and a poor prognosis, Smith consented to have the horse euthanized. Dr. Hill had some significant concern because Smith had not paid her since September 2012 but went over on February 23rd even though she owed more than $1000.00.

[75] Dr. Hill was called the following day February 24th 2013 due to a fallen stallion and Dr. Gallagher was still away. This was a younger stallion between 6 & 7 years old by the name of Kia. She observed visible signs of struggle lacerations on the face and eye, a critically low body score. Smith was very upset and emotional. There was no sign of Kia being able to coordinate limbs and Kia appeared in pain. There was a lack of assistance and cost factors discussed, so Kia was euthanized.

[76] On February 24th 2013 Dr. Hill looked around the farm and became very concerned with the state of the situation. 2 down within 2 days never happened to her as a vet before this. Horses are often euthanized but not often for downed horses. She observed the majority of the horses within the farm were very thin and this was a change since her fall visit in October 2012. She asked Smith what was going on here and Smith produced the OSPCA orders and showed Dr. Hill.

[77] This was the first Dr. Hill had known of the orders. Smith was upset and apologetic, showed distress and remorse. Hill was told the hay was low quality which Hill acknowledged that the hay in the county was bad that year, but she observed there were not enough substitutes to hay to feed all of the horses. Dr. Hill said she would refer details to Dr. Gallagher and discussed her outstanding bills, and was told one of the boarders would be diverted to pay her bill.

[78] On February 24th 2013 things were left on a positive note. They discussed ways to change the nutrition program, Dr. Hill recommended fecal samples and to check for parasite burden.

[79] On March 6th 2013 the defendant Lynda Smith called Dr. Hills office in mid-day because the OSPCA and the CTV news cameras were there and she was needed right away. Dr. Hill called Dr. Gallagher and the two of them went together around 6 p.m. that evening.

[80] The court has heard that and I find as a fact that the OSPCA was not in attendance on March 6th but attended on the next day, March 7th. Dr. Hill had no discussion with the OSPCA on or before March 6th. When she and Dr. Gallagher arrived the farm was very quiet. Smith was very upset and she seemed fine with Dr. Hill being there. Dr. Hill recalls it only being the three of them who walked through the farm together although that fact is a fuzzy recollection.

[81] Exhibit 19, the notes of Dr. Gallagher were a compilation of both the Doctors observations and concerns through their joint walk through. The two Doctors examined 41 horses in three groups. 18 in the mare group, 14 stallions and 9 boarder horses.

[82] The horses seemed by and large in very rough condition. 18 horses were fighting over a vitamin lick, there was no water or feed. They obtained water when the defendant filled the container in the Doctors presence. The horses were fighting over two licks and the dominant horses had access. The horses were in a visible frenzy to get water when the containers were filled. There was no food present in the arena. They went in with open minds but found no horse had access to feed or water and Dr. Hill expressed concern.

[83] The majority had a body score of less than 3 [out of 9 which is the scoring Dr. Hill uses, where 4 to 6 is the recommended range, anything below 4 requires consultation]. In the boarders barn it was colder and none had feed or water. All had water buckets which were either empty or a small amount frozen. The stalls were in poor hygienic condition, no bedding and a large amount of manure and urine.

[84] The majority of the horses were thin, scores of less than 3; all were unkempt, overgrown manes, burdocks, and manure stains. Lack of grooming looks worse than groomed, and affects the health the least, but the worry from long standing urine and manure with no bedding is that horses can get pressure sores when laying. Dr. Hill consistently scored the horses lower than Dr. Gallagher, who used a different scale., later Dr. Gallagher told Dr. Hill he thinks he scored these horses too high.

[85] The stallions and geldings were the worst on the farm and the most affected. Dr. Hill ranked some as low as 1 and the majority less than 3. Death is a possibility with a score of 1. In the main barn were stallions and geldings were kept, there was no feed in any stall, most water buckets were empty, several had less than 1 inch but water was not freezing.

[86] Dr. Hill opined that a healthy horse can withstand low temperatures, but when it loses its fat it loses the ability to thermo regulate. Hay is the most heat producing food we can feed them. They counted 4 small bales of hay poor quality first cut, plus bins of grain and supplements but not enough to feed 41 horses. Smith had less food then she could get through one day with. Typically need ½ bales a day and if gain is required they need up to 1 bale per day.

[87] Dr. Hill explained her concerns during the tour and Smith said it had been a busy day and she had not gotten around to it [feeding and watering the horses]. Smith showed the scoop and feed, it was low and it would not substitute without hay for a complete diet. Smith required that supplement plus ½ to 1 bale per day per horse. Smith said more hay was on the way, but Hill observed there was no adequate hay on the farm. Smith was told to get shavings into the stalls and Dr. Hill was surprised that several hours after they left it was not acted upon [see testimony of OSPCA representative Inspector Bluhm who attended March 8th.].

[88] In Dr. Hill's opinion no one person can take care of 41 horses.

[89] Dr. Hill stated that on March 6th, 2013 it was an extremely upsetting situation where up until that time she and Dr. Gallagher did not see the situation as a whole. It was a staggering amount of information to take in and extremely disturbing. Dr. Hill and Dr. Gallagher both agreed to offer services to get things back on track. Dr. Hill was given the okay to talk to Inspector Bluhm from OSPCA and facilitate meetings. That night Lynda Smith still seemed happy with both Doctors and offered that both could stop in at any time. Hill felt Smith was over wrought and tired. The next day Hill spoke to Bluhm and Smith and they met on March 8th.

[90] It was the first time Dr. Hill met Inspector Bluhm at 3 p.m. on March 8th at the farm. It was different than March 6th, defendants daughter-in-law Debbie was there and Kate, they were helping with feeding and mulch, there was bedding and stables were cleaned or being cleaned, all had water and the mares were turned out. Smith was more businesslike; they walked through and came up with a plan. Smith had volunteered to release horses for care and 8 to 11 had already left. They were deciding who was to be rehomed, who would remain and what would be the care.

[91] On March 8th there were 3 horses planned to be euthanized, and Smith volunteered Wiz, Scud and Vanity to be euthanized. Dr. Hill was shown Exhibit 11A a picture taken by Inspector Bluhm on March 8th of a horse believed to be Scud. She said Scud had a body score of 2 out of 9, that the manure stain on it could leave a pressure sore if inadequate bedding, that the horse had a prominent backbone and tail head, so prominent you could almost count the vertebrae, and it would take at least a month to get in such condition, depending on the health and hydration of the horse.

[92] It was Dr. Hill's opinion that none of the orders issued by the OSPCA on February 13th were met by Smith on March 6th. There was no adequate feed and water; all horses were not watered and it was not ice free; there was not dry bedding at all times; the hooves needed trimming, there was not one week supply of feed on the premises, and the recommendations of the veterinarian were not being followed.

[93] Dr. Hill agreed Smith should re-home as many horses as possible, Smiths resources were very thin, and Hill volunteered to foster 1 or 2 horses if Smith was willing to rehome them.

[94] Dr. Hill prepared an addendum to the order made March 8th, making the addendum after March 8th, and gave it to the OSPCA but not Smith, entered as Exhibit #25. The Addendum to Order #1: Veterinary Recommendations included parasite control [required fecal analysis], vaccination, annual wellness and dental exam, ancillary testing; emerging medical issues must be reported and then specified care guidelines for turnout, blankets, water and specific recommendations for Sonny and Teak, and Debbie plus geriatric horse's recommendations. They would not give advice on the number of horses Smith should own but recommended none or five subject to the OSPCA allowing ownership. The defendant must have a plan for veterinary care and a payment plan for such services.

[95] On Cross examination, the Defendant was very concerned and questioned Dr. Hill about her taking two horses from the farm in March 2013 as part of the rescue operation. Dr. Hill answered that the Blue Mountain Clinic offered to take two horses if the defendant volunteered them to be rehomed. Smith's contention is that Dr. Hill gained financially by her horses being taken, Dr. Hill says after taking care of a horse for a year there is no benefit.

[96] On this issue, it is the Courts decision that even if there was a financial benefit after taking care of a horse for a year, it has no relevance to the charges of neglect before that time.

[97] Smith questioned Dr. Hill in cross-examination as to whether she saw the two large round bales of hay out back of the barns and Dr. Hill replied that Smith showed food inside but did not direct them to round bales outside that she now says she had when they, her and Dr. Gallagher and Smith, toured the farm on March 6th.

[98] Dr. Hill said if the digestible energy in the hay is low it could contribute to low calorie intake. Smith asked Dr. Hill could a horse continue to go down over a month as it gets [adequate] feed and Dr. Hill replied she had never observed that. Dr. Hill said the horses she rehomed were better within one month after they were properly cared for.

[99] I accept the testimony of Dr. Hill in its entirety as an accurate recollection of the conditions on the farm of Lynda Smith on February 23rd and 24th, and March 6th and 8th 2013. Dr. Hill was consistent on cross–examination, answered questions in a straight forward and polite manner showing her expertise as a veterinarian although she was not experienced with OSPCA involvement prior to this occasion and only learned that even though Smith showed her the OPCA orders on February 24th which were issued on February 13th, 2013, her obligation was to report the neglect she observed on February 23rd or 24th notwithstanding the outstanding orders. This misunderstanding did not detract from her testimony as to what she observed and how it should have been remedied had the defendant had sufficient resources to remedy it. Dr. Hill understood what was required to care and maintain the horses on this farm and was clear in describing what was lacking on the Smith farm at the time these charges were laid.

CTV Motion

[100] The defendant subpoenaed Roger Klein an employee of CTV who took video footage of the activists coming onto Smith's farm on March 6th 2013. The Defendant said Klein's testimony was relevant because it will show skullduggery by a witness she is planning on calling and the defendant alleges that woman [Leslie Curran who the Crown is not calling] got the three women activists to come onto her property. Counsel for CTV said skullduggery does not relate to the animal cruelty charges.

[101] The Crown prosecuting this case took no issue with the defendant showing the video taken by CTV at her farm, but counsel for CTV and the employee Klein, objected because there was another civil action taking place where CTV and three women are defendants. After submissions of counsel for Mr. Klein and the defendant Smith, I agreed to limit the examination of Klein to four questions which would be relevant to this trial. 1. Who is Klein employed by? CTV Barrie. 2. Did you take the video on March 6th 2013 [at Smith's farm]? I did take the video.3. Did you observe Ross, Leblanc or Turchner remove water from the horses? No. 4.Did you observe anyone remove feed from the horses? No. Did you observe anyone do any harm to the horses? No.

[102] Based on these questions I quashed the subpoena for Roger Klein because his testimony beyond the four or five questions asked and answered would have no impact or relevance to these proceedings.

Testimony of Anne Gage Witness for the Defence

[103] Anne Gage is a horse trainer and riding coach, she breeds horses, trains them and teaches horse riding. She has owned her own farm for 20 years. She was called by the defendant as she participated in helping Whispering Hearts attend to take horses from the Smith farm on March 8th. Whispering Hearts is a horse rescue farm in Hagersville Ontario take in horses in desperate need of help, rehabilitates them and then adopts them out. Gage says they took 7 horses and 2 more two days later. She said some of the horses were emaciated and in poor condition and some were okay. They were doing great now.

[104] Anne Gage read a Facebook message which claimed a veterinarian had gone in and took 2 of the best horses and that is why she is testifying as she opined that was a conflict of interest. On cross-examination she admitted she never heard any conversations between Smith and the vet, nor hear anything that was actually said.

[105] If I accept the testimony of Anne Gage it suggests some of the horses were emaciated and in poor condition when they, Whispering Hearts took them, and now they are doing great. The examination of Gage however was too short and shallow for me to rely on it. I could not get any sense from such a short series of questions as to her ability to observe and show her experience was used to evaluate the condition of the horses they took. She may well have had that ability and understanding, but her short testimony did not expound upon it enough for me to accept it nor help me in make any determination in this case.

Testimony of Leslie Curran for the Defence

[106] Leslie Curran was scheduled to be a Crown witness. The crown decided not to call her; so the defendant called her as her own witness. This prevented the defendant from cross-examining Ms. Curran. In fact there was a request to rule her as hostile and I made a ruling that Leslie Curran was not a hostile witness as she was polite and courteous to both the defendant in her questions and to the court and appeared to be answering questions to the best of her recollection and ability. Curran invoked the protection of section 9(2) of the Ontario Evidence Act at the prompting of the Crown because she was being sued civilly by Smith.

[107] Leslie Curran is a horse trainer and riding coach. She had started her own business called Volt Equestrian and heard about Smith's horse boarding facility through a mutual friend. She met Smith in late 2010 or early 2011. She came to Smith's farm in February 2011 and started boarding her horses there. Eventually they started working together on improving the Markdale property.

[108] Leslie Curran and the defendant had a falling out after Ms. Curran had a concussion injury in February 2012 which prevented her from working as hard as she used to, although she made an effort to do so until she advised the defendant in August 2012 that she could no longer work at the farm and under doctor's orders had to return home. At this point in time, August 2012 I find Smith's actions changed in respect to Curran; the defendant was not happy and the relationship deteriorated quickly afterwards. Ms. Curran tried to keep their friendship up but she was not welcomed by Smith anymore. Curran says Smith took back two horses she had given her earlier.

[109] The last time Curran was on the farm was in October 2012 to pick up the last of her possessions. Eventually, it was Leslie Curran, based on pictures other people posted on Facebook, people who had been at the Markdale farm after Curran was no longer involved with the operation of the farm, showed the poor condition of horses and the conditions of the farm. These pictures and the conditions she saw in those pictures caused Curran to call the OSPCA on more than one occasion.

[110] The complaints from Curran prompted the OSPCA to inspect Smith's horse facility.

[111] Leslie Curran had a clear recollection of the horses kept by Smith, their names and descriptions, and her recollection of the details of the people who boarded there, the people Curran brought in to work or board horses, the details of the farm and its buildings, outbuildings, equipment and fences, paddocks and hay fields; the details of the inside of the barns, including the stalls, washroom and storage facilities impressed me. She had the ability to clearly recollect and express her understanding of the nature of the Smith horse operation.

[112] Curran said it was her efforts which raised the standard of care and conditions of the horse facility at the Smith farm. She thought Smith and her had become friends and in fact Smith had put in her will that Curran would have the first right of refusal to purchase the farm when the last Arabian horse had died. This appeared to have made a great impression on Curran even though in the cold examination by this Court, it was a gesture which probably was of little financial value or little likelihood of coming to fruition. It certainly helped cement the relationship with Curran and I find she worked hard to assist Smith in the operation of this horse facility even to the detriment of her own health until she could do no more in August 2012 under what she said were her doctor's orders.

[113] Curran said the conditions at the farm which she saw in the Facebook pictures showed that the farm and its horses had deteriorated since she left. She described Smith as a woman who loved her horses and would do anything for them, but while Curran was there they had financial difficulties to schedule regular farrier work on the horse's hooves, and sometimes had difficulty purchasing supplements.

[114] The hayfields on the farm produced 100 round bales in 2012, which Curran had baled using the farms equipment. She said there were over 40 horses at the farm and by the time she was gone the round bales were gone. She said Smith often scrambled to buy loads of hay but did not buy enough. Curran said she herself could barely keep up the care of the stalls and as for feeding the horses, if Curran did not feed them in the morning, Smith would wait until the afternoon.

[115] I accept Leslie Curran's testimony as evidence corroborating the thin resources of the defendants operation. It describes a scenario where even with the unpaid help of Curran, and Curran's ability to call on friends to assist in exchange for horse riding lessons or boarding, the farm could not afford regular farrier services to care for the horses hooves, and found it difficult at times to purchase enough supplements or purchase sufficient quantities of hay, which I took to mean enough hay for longer periods of time.

[116] Curran helps this Court gain an understanding of the defendant, Smiths love of her horses, her desire to own many horses and run a large facility; coupled with an apparent inability to view the larger picture of where she can get help to care for all of these horses or afford their upkeep. Smith would rather have boarders who could not pay their board, sign their horses over to her rather than sell them at auction.

[117] Curran testified that Smith could not handle the horses on her own; she said she was afraid of the stallions. Curran was shown pictures taken by the OSPCA and she recognized the horses in the pictures and said they had deteriorated since she last saw them.

[118] Curran's testimony leads us to the OSPCA inspections and the involvement of the veterinarians and helps us understand how Smith may have gotten herself into a situation where she unwittingly put her horses at risk. But Curran's testimony can go no further than that. Curran was not on the farm since one time in early October 2012. And although Curran did comment on the change she sees in the pictures of the horse's condition since she left, the evidence of the condition of the horses in February 2013 and March 6th 2013 has come from other witnesses who actually saw the horses.

Testimony of Nicole Hanley for the Defence

[119] Nicole Hanley worked for Smith for 1 and ½ years taking care of horses while she attended school. She said Smith was not afraid of stallions and saw her brushing them. On cross she acknowledged that Smith only road one horse, Calli who was a gentle horse for beginners.

[120] Hanley also testified on cross that she did not notice the condition of the horses in February 2013, after she was shown a picture of the stallion Scud. Nor did she count the hay, look at the feed, nor look at the hooves. In redirect she testified that she did not pay enough attention and it did not catch her eye that they [the horses] were in that condition [referring to Scud's picture].

[121] This witness seemed truly shocked at the condition of Scud when she was shown the picture from February 2013. Her testimony was absolutely no benefit for the defence as her truthful answers weakened or eliminated the reason for being called by the defendant.

Testimony of Brenda Hoskins for the Defence

[122] Brenda Hoskins is a horse fertility specialist and has had horses all of her life, she married into a horse farm and they bred quarter horses and paints. She has known Lynda Smith all of her life and is a distant cousin. She attended Smiths farm in November 2012 and again on March 8th 2013 after the media event.

[123] Hoskins says she arrived after the Doctors but stayed after they left, she says she was there for 6 or 7 hours. She overheard conversations and disagreed with the decision to euthanize a thin gray horse because it was eating properly, drinking and had a bowel movement. She did not know which vet was to euthanize the horse. She identified it as the horse in Exhibit 11A. It was standing and got up or down without any problem. She brought hay and wormers with her, and Lynda showed her she had hay and wormers.

[124] Hoskins acknowledged that they had to feed their horses more cubes because of the poor quality of hay. In cross she said it was not until February that they realized they needed to supplement the hay. She said Smith's farm was always in good condition but also said that she has been to Smith's farm since March 8th and the horses have dramatically improved.

[125] On her farm they had 20 horses and lost 2, one to colic and one from old age. She said she would not know what conversations took place with the doctors and Bluhm before she got to the Smith farm on March 8th. She took a number of different steps to improve her own horses, but not until February.

[126] Hoskins comes in March 8th after many horses have been removed by rescue, hay and other supplies have been brought in, people are helping to clean up the stalls and horses, and her opinion of Smith's farm is based on what she knows of Smiths operation in the past and in my opinion not what she sees on March 8th.

[127] Hoskins is not an expert and while her opinion differs over whether to euthanizing a horse or not from that of the veterinarian, her testimony is not of an objective third party professional. Rather it is the opinion of a lifelong friend and cousin.

[128] Her comment about her subsequent visit to the Smith farm on an unknown future date after March 8th that the farm is in fine repair and the horses have "dramatically" improved suggests to me that what she saw on March 8th showed horses that needed dramatic improvement. The pictures entered as Exhibit #2 taken by Agent Comrie on March 7th 2013 satisfy me that that is the case.

Testimony of Carl Noble Defence

[129] Carl Noble is a farm owner, horse owner and formerly belonged to the Bruce Grey Humane Society. He visited the Smith farm approximately two weeks after the March 6th 2013 activist's demonstration and found the farm in good condition.

[130] He said at the time he visited the farm the barn was clean and the stalls were clean. He commented they have to be dry; the main thing is to make sure the animals are dry.

[131] Apparently Mr. Noble takes some umbrage with the police-like powers of the OSPCA and their lack of provincial oversight. He has advocated this publicly for change [see Exhibit # 41 for a flyer to demonstrate at Queen's Park on November 18th 2010] and his name is on the flyer as a contact.

[132] I find nothing in the testimony of Mr. Noble which affects the Smith case, except his observation based on his experience in the care of animals that stalls have to be dry and the animals must be dry confirms what we have heard from other witnesses and corroborates the need to adhere to that as a standard in animal care and maintenance.

Testimony of Lynda Smith

[133] At the start of the Defendant Lynda Smith's testimony, she outlined her legal actions against Dr. Angie Hill [a letter of complaint dated April 3, 2013 to the College of Veterinarians, later dismissed] and said she had fired Dr. Hill before the March 7th and 8th rescue operations by Whispering Hearts Horse Rescue and others including Dr. Hill's clinic, had removed horses.

[134] Smith provided copies of a motion in Superior Court against Dr. Hill and Dr. Gray, Blue Mountain Veterinary Services, Brenda Thompson and Dave Thompson and Whispering Hearts Horse Rescue to be heard April 12th 2013, along with the affidavit of Lynda Smith, which resulted in a 10 day interlocutory order preventing the defendants to the motion from gelding, selling, adopting out, or transferring or destroying any horses owned by Lynda Smith. I did not hear of any further orders made after the ten day period expired.

[135] Smith provided a copy of a Superior Court Statement of Claim against CTV Television Network, CTV Kitchener, CTV Barrie, Canadian Horse Defence Coalition, Linda (a.k.a. Ellie) Ross, Eleanor Yeoman Leblanc, and Jennifer Turchner made May 27th 2013. I find that none of these actions outlined in paragraphs 133 to 135 herein have any bearing on the facts that must be considered by this Court in respect to the charges laid by the OSPCA on April 11th, 2013 regarding the offence date of March 6th 2013, although these subsequent legal actions by the defendant arose out of circumstances surrounding or at the same time as the current charges. Furthermore, there are no court orders made in any of these other actions which have been brought to my attention which would otherwise affect the current proceeding.

[136] Smith stated that she was under the care of Dr. Hill at her horse farm but I accept the testimony of Dr. Hill that Hill was only called out in emergencies in 2012 and 2013 and on more than one occasion because Dr. Gallagher was unavailable and Hill was filling in for him. Dr. Gallagher testified that he only attended at the Smith farm when called, he was not attending on a regular basis and his records of attendance are outlined in Exhibit 20 showing October 10th 2012 conversation with Dr. Hill; 23rd his attendance at farm and made recommendations; 26th his conversation with Dr. Hill; and 31st his attendance for a downed horse, all in October 2012, which started when Dr. Hill advised Gallagher that she had attended in his absence to a downed mare and was concerned with the thin horses. Dr. Gallagher made recommendations on October 23rd when he evaluated the farm and made these recommendations to Smith.

[137] The recommendations from October 23rd 2012 are in my opinion a foreboding of the problems which later developed in the winter months. Feed practices were the critical factor in these recommendations.

[138] The next series of attendance by Dr. Gallagher were January 15, 2013; February 4th and 5th regarding Joey; February 7th 2013 attended for dentals at the farm but could not find Smith [Dr. Gallagher stated hay and water were in all stalls in both barns and cubes and grain}; After the February 13th OSPCA Order he attended February 17th, 2013 vitamin E was extremely low and Lynda said she would give orally to all horses; February 20th Dr. Gallagher noted he talked to OSPCA about farm evaluation, and wants to work with Lynda to "turn condition of horses around". He and OSPCA will do periodic checks.

[139] Smith stated that she had a veterinarian providing veterinary care and therefore fell within the exception under section 11.1 (3) of the act which states that subsection 11.1 (1) does not apply to a veterinarian providing veterinary care, or boarding an animal as part of its care, in accordance with the standards of practice established under the Veterinarians act. Subsection 11.1 (1) provides that every person who owns or has custody or care of an animal shall comply with the prescribed standards of care, and the prescribed administrative requirements, with respect to every animal that the person owns or has custody or care of.

[140] Based on the testimony of Dr. Hill and Dr. Gallagher, I find that prior to the increased problems in February 2013, no veterinarian, not Hill or Gallagher, nor was any other vet brought to my attention up until March 10th 2013, was retained for ongoing treatment and inspection of the horses on her farm. They attended on call, based on problems as they arose. Dr. Gallagher started his testimony with the statement that a horse farm this size would need a vet attending weekly and I find this farm did not have a vet attend weekly, nor monthly, nor did it appear to have the resources to afford such veterinary care. I recall Dr. Hill stating her September 2012 invoice for an emergency call she made then was still left unpaid as of February 23rd.

[141] There was no evidence to verify that Dr. Hill was ever the regular veterinary for Smith's farm, there are no records to verify this, no invoices or statements of account, no doctors notes. The statement by Smith that she "fired" Dr. Hill in February is not verified by any witness, neither Dr. Hill nor Dr. Gallagher, nor Inspector Bluhm, nor Agent Comier testified to hearing of that occurring prior to these charges being laid, and in fact Dr. Hill felt Smith was relieved by her and Dr., Gallagher's attendance on the farm on March 8th to inspect the farm and asses the 41 horses on it, and felt her assistance was welcomed and appreciated.

[142] The subsequent loss of horses on March 8th and the "rehoming" of two horses by Dr. Hill's Blue Mountain Veterinary services Clinic, as well as the original complainant Leslie Curran's acquisition of one rehomed horse seemed to have inflamed the defendant after the fact and in my view her testimony on firing Dr. Hill and disagreeing with the rehoming and rescue operations reducing her horses is inaccurate and unreliable. While she may now believe it herself, it is not verifiable by evidence beyond her bald statement and no other witness can confirm any knowledge or perception to suggest Smith was unhappy with Hill's or Gallagher's unpaid help on March 6th. I say unpaid because Dr. Hill testified that the two vets, she and Gallagher attended on March 6th together without expecting reimbursement for their services in assessing and making recommendations. The observations and the recommendations in Exhibit #19 are apparently jointly made by Hill and Gallagher although recorded by Gallagher.

[143] Apparently Smith has taken great offence that Dr. Hill, as well as the original complainant Leslie Curran who brought the conditions of the horses at Smiths farm to the attention of the OSPCA, both obtained horses as rehomed horses when decisions made by Dr. Hill and Dr. Gallagher to reduce the herd to a manageable level by Smith were made. Smith believes that Hill and Curran obtained three of the best horses. Dr. Hill offered to rehome two horses on behalf of her clinic and she says she still has one of them and that no financial benefit was made after caring for this horse for over a year. I find that Smith has developed hatred towards Dr. Hill because she believes Hill took advantage of her when she was at her lowest point emotionally and mentally; with the activists, the OSPCA inspection and orders, then the horse rescuers all wanting her to give up her beloved horses. Dr. Hill recommended the euthanizing of some horses and the rehoming of other horses. Smith complains that Hill got two of the best horses. She thinks Dr. Hill had a fiduciary duty to her and is angry that she was in her mind taken advantage of. I find it difficult to accept Smith's testimony in respect to where it differs from Hill's testimony because of that blinding animosity Smith seems to exhibit.

[144] Leslie Curran obtained one horse. She is called a boarder by Smith although Curran testified that they became and acted as partners in the running of the horse farm after she started to board in February 2011. I find that Smith offered incentives to Curran to stay with her and take care of the horses and bring volunteer help to assist in the care and maintenance of the animals and farm; Curran brought in boarders; she trained people to ride and care for horses. Curran's activates were a big boost in making the care of over 40 horses feasible on the Smith farm so much so that I find Smith gave her two horses and later reneged when Curran could not work. I accept the testimony of Curran that Smith prior to Curran's inability to work made Curran a "beneficiary" under her will by offering a first right of refusal to purchases the farm. All of these actions recognized Curran's value to Smith in the day to day operation of the farm and her desire to keep Curran on.

[145] I find that Curran suffered an injury, a concussion in February 2012 and was unable to continue working on the Farm in August 2012 under her doctor's orders. This loss to Smith turned her against any continuing friendship or generosity to Curran. That may not be an unpredictable result, but the subsequent compliant by Curran and rehoming of one horse by Curran from Smith's farm created an animosity in Smith towards Curran, and I find it difficult to accept Smith's testimony in respect to where it differs from Curran's testimony because of that blinding animosity Smith seems to exhibit.

[146] A lot of the testimony of Lynda Smith such as quoting references to the Code of Practice for the Care and Handling of Equine; or, showing pictures of the condition of the farm where Leslie Curran boarded her horses from Facebook; or claiming the activists dumped the horses water on March 6th, which I find based on the testimony of Klein did not happen; or claiming that there was a conspiracy against her by the OSPCA and others to take her horses; are either irrelevant or fanciful speculation not borne out by the facts. Much of her testimony was in reference to things that occurred subsequent to the time period in question, such as the rehoming of many of her horses. There are many theories espoused by Smith and I have tried to touch on all of them all in this decision; but none of them have proven helpful in respect to the charges laid in this case.

[147] I find based on the testimony of Dr. Hill and Dr. Gallagher when they examined the 41 horses and the conditions at the farm on March 6th after the activists had left, that the horses did not have adequate feed or water, that the stalls were not adequately cleaned, the mats were disrupted and uneven, and stalls did not have sufficient bedding to keep the horses dry, that many horses had burrs and clumps of manure on their coats [which could lead to eye damage in the case of burrs on their face, or sores when laying down due to clumps of manure on their lower bodies].I find that the there was insufficient hay on the premises to feed the 41 horses, the doctors only having seen 4 bales of old 1st cut hay. I find that Smith knew or ought to have known the importance of showing any other hay on the premises to the doctors during the inspection because she was under OSPCA orders to have one week's supply on hand. I do not accept her testimony that here were bales in another location because to do so would fly in the face of common sense and reason, given the importance of this matter to her and to the horse's wellbeing, she would have shown them the hay. I find that the water buckets ranged from being low, to empty or frozen and were incapable of providing sufficient hydration to the horses on March 6th. I find that based on the exceptionally thin condition of many of the horses that these conditions had endured for more than one week or were common occurrences in the weeks before March 6th 2013 which would account for the decline in the health of the horses.

[148] I acknowledge that a great many of the horses owned by Smith were over 20 years of age, many were close to 30 years of age, but the care and feed of those horses was inadequate during the period in question and I find that inadequate care and feed caused them distress and in some cases contributed to their early death.

[149] I acknowledge that there was a variation in methods to measure or determine the body condition of horses, and Hill and Gallagher used two different measurement methods, but I find that under either method, there were many horses which were below the acceptable level of body weight for their size, age or breed. I acknowledge that Asian horses are a smaller breed, but having sad that, protruding ribs and bones, were prevalent in many horses and are shown in many of the pictures entered as exhibits, as are stalls with no bedding and horses with clumps of manure on their bodies.

[150] Lynda Smith promised but never provided receipts to show that she had an adequate and regular supply of hay during the period in question. She testified that in 2012 while in other years she would generate 200 to 250 round bales off her property, she only gathered 100 round bales in 2012. This was corroborated by her witness Leslie Curran who Smith called as her own witness after the crown decided not to call her. Curran said she brought in 100 bales and they were gone by the time Curran left the farm in August or last attended the farm to pick up her belongings in early October 2012. In either case, more hay was required and I find that insufficient hay was available for the horses on March 6th 2013.

[151] The feed receipts she did provide were yearly totals from Huron Bay cooperative showing $4455.25 for 2012 and $4459.11 for 2013 [from Jan to November]. These totals don't break down the nature or type of feed purchased or the quantity. Smith testified she sometimes purchases feed from Walter's Falls Feed "on a cash basis when I stop in there". This information is uninformative. It does not address the question of the availability of ½ to 2/3's or one bale of hay per horse daily for 41 horses, plus supplements. It leaves hanging the adequacy of the food stock and the answer is to look at the horses' body conditions.

Testimony of Dr. Bernd Stanglmeier Defence

[152] Dr. Stanglmeier was called as a witness by Smith. The Court qualified him as an expert in veterinary sciences for horses after the court heard of his education, training and decades of continuing experience in the treatment and care of horses.

[153] Smith called Dr. Stanglmeier on March 9th 2013 and came up to the farm on March 10th. It is a 140 km drive for him. He examined Wiz and Scud. He concluded they had poor body condition but were healthy. He determined that they can improve with proper feeding and with the proper care they do not have to be euthanized.

[154] Two exhibits had previously been entered by Smith which was letters from Dr. Stanglmeier which he acknowledges he wrote on March 190th and March 12th respectively, entered as Exhibits # 61 and 62 confirmed his opinion in writing about Wiz and Scud. Ex 61 says he examined Scud and Wiz and determined they can improve with proper care and feeding and do not have to be euthanized. He testified he did not look at any other horses as Smith wished to keep her costs down.

[155] Exhibit 62 is an email dated March 12th 2013, to Dr. Mary Bell who is the coordinator for Equine Canada, where Dr. Stanglmeier informed her of his recommendations, so that she knew he was involved because there was information that there was a health and welfare case in Grey County [of which he assumed she, Dr. Mary Bell should be informed of his involvement].

[156] He told Mary that he made arrangements with Lynda Smith as follows:

1. "Pick a veterinarian, who comes on a monthly bases to score the horses for weight, does dentistry for all horses if required; makes sure the horses are healthy and looked after with deworming, vaccinations etc. Every visit for each horse has to be recorded and kept on file. These records should be inspected by OSPCA.

2. Daily proper feeding of grain, hay and water; additional supplement of vitamin/mineral to fight back lack of E/Se in hay.

3. Daily cleaning and bedding of stalls.

4. Grooming of horses on a regular basis.

5. Continued regular trimming of feet by blacksmith.

6. Daily turnout of horses in paddocks or arena for exercise."

[157] In an email dated March 13th 2013 as part of Exhibit 62 sent to Jennifer Bluhm he told Inspector Bluhm regarding Lynda Smith the following: "1. Skandyl [Scud] has mild anemia, a multi vitamin supplement given 2-3 times a week should improve condition; feeding a high crude fat high fibre diet should improve weight gain, for the old stallions even a senior feed diet which is similar; feeding three times daily, to tell the amount I would have to see the labels; to examine the horses weekly by a veterinarian is not necessary, the OSPCA should stop in weekly to make sure everything is in order. E/Se should be given by instructions on container."

[158] On cross examination Dr. Stanglmeier said he only performed a fecal test on one horse to keep the costs down and because horses examine each other's fecal matter so if one gets infected with parasites they all can. And he said he would not be putting his money [into tests] she only has a certain amount. His cost was already $300.00 and each fecal test is $50.00.

[159] He only examined Scud and not the other horses. He said as to body scores you get different scales used and someone might not be used to Arabians. But he qualified Scud as poor body condition. He would be 3 on the body condition scoring Equestrian chart but different on the American chart: a 4 out of 5 not at risk of life, but skinny. He said they needed consultation about feeding and it must be increased slowly. Had he seen these horses in October and if they were skinny he would have been back within a month to see them.

[160] Dr. Stanglmeier said the owner should call a vet if they are not improving.

[161] He did not look at other horses both said the feeding was not correct. The issue with Scud and Wiz was they were not fed properly and they had not been fed enough.

[162] In the case of 40 horses he sent out to inform Equine Canada, Health & Welfare that he was involved. He said normal veterinary care would be once per year [per horse] for vaccinations plus emergencies. He recommended the OSPCA stops in weekly to make sure things are in order. The horses are skinny and they could only be that thin if not fed correctly.

[163] He suggested daily cleaning of bedding and stalls to Smith, he said they were not clean enough, and with 40 horses you need more help. He said when shown the picture of the horse with burrs in it forelocks that they should be removed or cut out because the hair will grow again.

[164] In respect to ice in the water he said as long as there is water it could be okay but the ice should be dumped every day and refilled at least twice a day. He explained horses don't like ice cold water, they drink less.

[165] He said he advised her to clean the stalls more.

[166] In his opinion in 2013 there were too many horses and not enough feed or water. He thinks she knew how to care for horses his personal opinion is, there were financial problems. He agreed the solution is to decrease the herd, contact OSPCA, advertise and look for places to give horses away. You have to look for help.

[167] In Dr. Stanglmeier' s opinion it costs 200/mo. to care for a horse if you have to purchase everything if they are pasture horses, if not the costs go higher. Elderly horses require more care and more feeding.

[168] In respect to supplements, he could not tell by Exhibit 72 if $4453.00 a year is enough for 40 horses it depends on how much hay is available. And whether elderly horses need supplements depends on how much hay is available.

[169] On redirect Dr. Stanglemeier said with older horses if they don't take on weight I would advise to euthanize but not force it unless neglect. A 31 year old horse might not gain weight. Generally horses can live a long time on hay and with selenium.

Motion to Stay on Lack of Full Disclosure

[170] At the end of the evidence portion of the trial the Defendant made a motion to stay or dismiss because the Prosecution did not make full disclosure. After hearing argument, I was satisfied the Defendant had full disclosure and dismissed the motion.

Conclusion

[171] Dr. Stanglmeier came to the Smith farm at her request on March 10th to examine Scud and Wiz. In his opinion they did not have to be euthanized because although they were thin, they were in good condition to recover if cared for properly.

[172] Dr. Stanglmeier was seeing the farm four days after the activists attended on March 6th, after volunteers came to assist on March 7th, and 8th to clean or muck the stalls, put bedding in the stalls and groom and feed the horses. Yet in his opinion the stalls needed more cleaning and bedding, the horses needed grooming, the water needed to be changed more often and the ice dumped daily, the feed and water was not proper given the conditions he saw the horses were in. The two horses he looked at were thin.

[173] He suggested daily cleaning of bedding and stalls to Smith, he said they were not clean enough, and with 40 horses you need more help. He said when shown the picture of the horse with burrs in it forelocks that they should be removed or cut out because it can go to the eyes, and the hair will grow again.

[174] In his opinion in 2013 there were too many horses and not enough feed or water. He thinks Smith knew how to care for horses and in his personal opinion, there was a financial problem. He agreed the solution is to decrease the herd, contact OSPCA, advertise and look for places to give horses away. He said you have to look for help.

[175] Not coincidentally, the recommendations of Dr. Gallagher in October 2012 {Exhibit #20] the subsequent inspection by the OSPCA in February 2013 and the order made on February 13th ,2013 [Exhibit #1] the inspection, pictures and order made by the OSPCA on March 7th 2013,[Exhibits 2, 2 A-S, and Exhibit 3] the testimonies of Dr. Gallagher and Dr. Hill which I outlined previously above and accepted as an accurate picture of the conditions of the horses at the Smith farm, the recommendations of Dr. Gallagher and Dr. Hill outlined in his report dated March 6th 2013 [Exhibit # 19], the testimony of Dr. Stanglmeier and his recommendations {Exhibit # 62] all tell the same story: the horses were not being fed properly or enough, not enough water is available and there is insufficient help to feed, water, groom the horses correctly [burr removal, manure removal from the legs]. Stalls were not being cleaned regularly and there was insufficient bedding being provided, farrier work was irregular, veterinary care was on an emergency basis only.

[176] I accept the evidence of each of the three veterinarians. They were qualified as experts in the care and treatment of horses, they all recognized similar problems with the conditions of care and feeding and the thinness of the horses at the Smith farm. There was evidence of both younger and older horses all needing to be properly fed and watered to bring them back to an acceptable body condition and a younger horse was euthanized as well as quite a few older horses were euthanized in the winter of 2013.

[177] I find that the denunciation by Lynda Smith of the evidence presented showing thin, dirty horses, stalls without manure removed and without bedding provided, water buckets empty or water troughs with ice prevalent to be without merit and her excuses unacceptable. These conditions existed and no proof of adequate supplies or help was proffered until after the conditions were exposed on March 6th, 2013 and the orders were made on March 7th, following which the herd was reduced to a manageable level.

[178] I find no evidence that the OSPCA conspired with Dr. Hill or anyone else to fabricate any evidence and cause undue stress on the Defendant Smith. I believe based on the testimony I heard from Inspector Bluhm and Agent Comrie that they acted professionally and in the interest of correcting unhealthy living conditions for the horses they were obligated to protect.

[179] I find that Dr. Hill was acting in good faith when she offered her clinic to rehome two horses for Lynda Smith when Dr. Gallagher and Dr. Hill suggested reducing the herd which was encouraged by the OSPCA. This in turn came to be viewed as a conflict of interest by Smith. In my view this is a case of good intentions having gone bad. While I would now in retrospect discourage such practical help by a veterinary in a situation where a defendant feels vulnerable as Smith did, I do not find that Dr. Hill acted in bad faith or that her testimony was less credible because of her effort to assist in reducing the heard. I accept her testimony in respect to the conditions of the farm and its horses to be trustworthy and credible.

[180] I do not know how Leslie Curran came to possess a horse for rescue from the Smith Farm and given the status of her as one of the complainants who instigated the investigation of the farm, I do not think it appropriate personally for her to participate in accepting a horse for rehoming. But my observation is based on perception rather than wrong doing and it does not affect the outcome in this case. Leslie Curran became a witness for the defence when not called by the Crown and her testimony helped the Court to understand the background. Such Smith's love for horses and her willingness to accept horses instead of overdue boarding payments which grew the defendant's herd but made costs increase; I find the herd grew to an unmanageable level of over 40 horses in the winter of 2013.

[181] I find that Lynda Smith had the knowledge required to care for horses properly but that she lacked sufficient help and finances to properly care for over 40 horses in the months of January February and March 2013, with the problems first developing as early as October 2012. I accept the testimony of the veterinarians and Smith that the quality of the hay in 2012 was less nutritious and in shorter supply than in previous years, but I also find that the defendant did not purchases enough hay in light of those conditions nor adequately feed the horses to overcome this situation which she would have been aware of as early as October 2012 when Dr. Gallagher made his initial recommendations.

[182] In respect to the defence of due diligence, I find there was a decline in the health of the horses Smith owned or cared for. I find this decline raised an obligation on the defendant to take immediate action to increase the quantity and quality of food and water for the horses, and to maintain the stalls in a dry and clean condition. I find, if she was unable to acquire sufficient help to complete these tasks on a daily basis, or if the defendant was unable to afford the quantity and or quality of feed or supplements necessary to provide adequate daily nutrition for these horses, then the defendant should have reduced her herd immediately to a level where she could adequately care for them. Smith did not take these required actions until after the OSPCA was called in. Therefore I find that the efforts of the defendant were not the actions a reasonably informed person would take in similar circumstances. Horses are living things, if a person can't afford their care then a person can't keep them.

[183] This inability to care for the horses, by not providing adequate feed and water, nor clean stalls with proper bedding did on March 6th 2013 and other times cause them to be in distress and I find the Defendant guilty under count number 1 contrary to sections 11.2(1) and 18.1(1)(c) of the OSPCA Act.

[184] Similarly, as owner or the person who had custody or care of the horses on her farm on March 6th 2013 and other times, I find Lynda Smith failed to comply with the prescribed standards of care for the horses, in that she failed to provide adequate and appropriate food and water and I find the defendant guilty of count number 2 in this information, contrary to sections 11.1(1) and 18.1(1)(b) of the OSPCA Act.

[185] The Order of the OSPCA dated February 13th, 2013 required the defendant Lynda Smith to have one week's supply of food and water for the horses at any given time. I find based on the testimony of the two veterinarians who examined the 41 horses on the farm the evening of March 6th 2013, and inspected the food, water, supplies and condition of the stalls, that they satisfied me there was only four bales of hay available at the time.

[186] This was not enough hay to feed 41 horses for one or two days and well short of a week's supply. I do not accept the Defendants statement that she had other hay stored on the farm at the time as she knew her obligations and she knew or ought to have known she should show this hay to them. The defendant also testified that she had a delivery of hay coming the next day of later in the week. I find all of her testimony on these points unbelievable excuses and unverified by the evidence.

[187] Consequently, in respect to count 3 of this information, having been served an order in accordance with section 13(1) of the OSPCA Act, the defendant Lynda Smith guilty by failing to comply with that order by not proving adequate food, water, bedding, and not having one week's supply of feed kept on the premises at all times contrary to sections 13(5) and 18.1(1)(d) of the OSPCA Act

[188] Count 4 is a charge against the person who owns or has custody or care of animals, to wit, horses, did fail to provide care for their general welfare. I have accepted facts as true which showed the defendant failed to provide adequate food or water for horses she owned or in her care, failed to adequately groom them to prevent injury to their eye or sores from clumps of manure stuck to their bodies and/or legs when they lay down, failed to provide adequate bedding which would keep them clean and dry and failed to adequately arrange for ongoing farrier care to trim their hooves. Based on these findings I accept that they prove the defendant failed to provide the care necessary for the general welfare of her horses and consequently Lynda Smith is guilty of this offence under count 4 of the information contrary to sections 11.1(1) and 18.1(1)(b) of the OSPCA Act.

[189] Although I have found Lynda Smith guilty of all four counts as charged, I am aware of some of the circumstances that led her to build up such a large herd of horses. I wish to hear submissions on sentencing which take into account these circumstances, whether there is any record to consider, and what if any case law on sentencing is applicable based on my findings of fact.

Released: June 22, 2015

Signed: "Justice of the Peace Ziegler"