Court File and Parties

Ontario Court of Justice

Date: 2016-03-10

Court File No.: Toronto 4817 998 11 70018779-00

Between:

Her Majesty the Queen

— and —

Diane Way

Before: Justice William B. Horkins

Counsel:

• Ms. Corie Langdon, for the Crown
• Mr. Walter Fox, for the accused Diane Way

Heard: In writing on April 22, 23, 24, 29, 30, August 25, 26, 27, September 22, 23, 25, 30, 2014 and January 29, 30, March 5, 6, April 23, June 25, September 28, 2015, January 19, 20, 2016

Reasons for Judgment released: March 10, 2016

Introduction

[1] The charges are Cruelty to Animals, s. 446(1) of the Criminal Code, and Cause or Permit Unnecessary Pain, Injury or Suffering to an Animal or Bird, s. 445.1(1)(a) of the Criminal Code. At the material time, the accused had at least 107 cats living with her, in her home. These cats were living in filth, disease and squalor.

[2] Although the evidence in this case is voluminous, and was received over many days in court, the facts are actually very clear. With apologies to Shakespeare, Diane Way loved her cats, "not wisely, but too well" and as with Othello, there were tragic results.

[3] When the authorities arrived at Ms. Way's home on April 24th, 2011, they found, at best count, 107 cats living there. The house was an unbelievable sight; wall to wall cats; floors, walls and furniture rotting and coated in cat urine, cat fur and cat feces. The smell was literally over-powering. The first officer on the scene thought there might be a dead body inside the house. She entered but had to retreat from the eye-watering stench of the place. A fire-fighter in full "hazmat" gear went in and feared that he might fall through the wooden floor because it was so spongy from having been soaked in cat waste. He found cats huddled in nooks and crannies all over the house. He saw a cat with a missing eye.

[4] The Ontario Society for the Prevention of Cruelty to Animals (OSPCA) was brought in. The cats were rounded up and taken for examination by a team of veterinarians. The cats were suffering from a multitude of health concerns: dehydration; upper respiratory infections; alopecia; eye infections; chemical scalding from cat urine; and from genetic birth defects, resulting from inbreeding within the population. They were almost all black in colour and they were, without doubt, mostly related to each other.

[5] When Ms. Way arrived home on the day of the intervention she found the police, the fire department, and the OSPCA in and around her home. They had been there for a few hours. She had been out getting provisions for her cats. She had a pull cart full of cat food with her. She immediately cooperated with the authorities and signed over the cats to the custody of the OSPCA. In the days following, all of the cats were assessed by a team of veterinarians. All but one of the 107 cats was then euthanized.

[6] This was a sad case. Diane Way is not a mean person and she had great affection for her cats. However, she allowed her population of cats to get totally out of control. The result was horrible. She failed to deal with it and the results were tragic.

[7] The ultimate question for this Court is whether the accused's conduct is criminal. The ultimate issue boils down to whether the necessary mental element of the offences, the mens rea, has been proven beyond a reasonable doubt. The mens rea of these offences is wilfulness, and wilfulness has a very particular meaning in the context of these offences.

[8] At the end of this lengthy trial the facts of the matter were very clear. I have alluded to my conclusions already. The details of the situation in this house provide a necessary context for considering the narrow and determinative legal issue of proof of the mens rea of the charges. Crown counsel, Ms. Langdon, has gone to great lengths to prepare a summary of the evidence as part of her written submissions. Most of the facts are not seriously in issue, and so I am going to take advantage of her work and incorporate much of her material into my reasons. I will add any necessary qualifications or commentary where I feel it is required to accurately reflect my own findings. Otherwise, I accept her summary as accurately reflecting the proven facts.

[9] From the Crown Factum:

Part I: Facts

[1] Ms. Way's trial took place in 23 days spread over the course of just under two years. The Crown called: 2 civilian witnesses: Ms. Pollard and Mr. Baker; three Toronto Police Services officers: Det. Apostolidis; D.C Grondin and D.C. Chaisson; one OSPCA Agent: Don Smith; and three veterinary experts: Dr. Kelly; Dr. Redhill and Dr. Smrdelji. Ms. Way testified in her defence, and called one expert witness: Dr. Jafine and three civilian witnesses. Below is a summary of the evidence heard at trial:

[2] On Sunday the 24th of April, 2011 Ms. Dorette Pollard attended at Ms. Way's house. She is a lawyer who was canvassing other lawyers in respect of the upcoming Bencher's Election. She testified that she approached Ms. Ways home and was overcome by a smell unlike any she had ever smelled. She testified that the smell outside the home caused her to froth at the mouth and spit. She left a pamphlet for Ms. Way and continued with her canvass. Before leaving a pamphlet Ms. Pollard looked inside Ms. Way's home and saw a black cat that seemed to be frightened and conveyed a message of "help me" to Ms. Pollard. As she finished her canvass Ms. Pollard and her husband drove back by Ms. Way's house and saw that her pamphlet remained in the door. Ms. Pollard became concerned that someone had died inside the home and contacted 911.

[3] Mr. Baker, Ms. Way's neighbor, also confirmed the overwhelming stench coming from Ms. Way's home. Mr. Baker testified that as of 2009 he was unable to keep his windows open during the summer months and the smell of ammonia from Ms. Way's house would be overwhelming. He looked forward to the winter months so that he could air his house out. He also testified that he had made numerous complaints to the City about the smell and appearance of Ms. Way's home.

[4] Police Constable Chaisson was the first Toronto Police Service Officer to respond to Ms. Pollards 911 call. Officer Chaisson arrived on site at Ms. Way's home and knocked on the door. No one answered. She immediately noted a smell of either ammonia or filth or decay. She looked through the window and saw at least a few dozen cats running around in filth and feces. She was able to ascertain from outside the house that a number of the cats appeared to be in medical distress and described them as having eye infections with runny eyes and sores on their eyes, being skinny and suffering from disease. The officer made attempts to telephone the resident of the home to no avail.

[5] After contacting her supervisor and expressing concern about the potential safety of whoever may be inside the home, the officer was advised to contact Toronto Fire to obtain access to the home.

[6] Toronto Fire attended the scene and together with PC Chaisson an attempt was made to enter Ms. Way's house. PC Chaisson was unable to enter the home because the smell of ammonia was overwhelming. She testified that she was unable to breathe and that the smell made her face burn. Toronto Fire donned their HAZMAT suits and made efforts to clear the house. There were two rooms at the top of the house that Toronto Fire was unable to access.

[7] Detective Apostolidis was ultimately the Toronto Police Services officer who managed the scene. He arrived on scene after PC Chaisson and could smell a strong odour of ammonia from the sidewalk outside Ms. Way's home. Under Detective Apsotolidis' watch Toronto Fire conducted an air quality assessment (based on how terrible the smell was) to ascertain that there was nothing hazardous being inhaled. The City was also contacted based on Toronto Fires assessment of the situation in the house to ensure that there were no structural concerns. Toronto Fire described walking in Ms. Way's house like walking in a moist forest. The floors were hardwood, but because of how moist and soggy they were Toronto Fire couldn't even make that out. There were concerns that they were going to fall through the floorboards.

[8] The Ontario Society for the Prevention of Cruelty to Animals was also contacted based on the observations made of some of the cats inside the home. The observations were made by Toronto Fire and conveyed to agent Don Smith, who was the OSPCA agent that attended Ms. Way's home on April 24, 2011. Based on information received from Toronto Fire Officer Mike Lester, Don Smith determined that there was an animal in immediate distress and entered Ms. Way's home. While searching for the cat in immediate distress, Agent Smith observed cats with various injuries including cats that were blind, with missing or sunken eyes, and upper respiratory illness type infections including discharge from the eyes, nose and mouth. The conditions of the house were extremely unsanitary - the floor of the entire house was covered in feces, especially the couch and the bed. The floorboards were coming up in places as a result of being soaked with urine, there was mould on some of the walls and the smell of ammonia was overwhelming. Agent Smith also noted that he did not observe any food or water bowls for the cats. Agent Smith did not locate the cat in medical distress described by Toronto Fire and exited the house.

[9] The following day, April 25, 2011, pursuant to an authorization signed by Ms. Way to voluntarily surrender her cats, Agent Smith returned to Ms. Way's home to collect the cats. 55 cats were removed from Ms. Way's home that day. They were captured in nets by OSPCA agents wearing HAZMAT suits and were triaged by Dr. Li. They were then put in cages and transported to the Newmarket OSPCA were they were examined.

[10] Dr. Li's triage notes were entered as exceptions to the hearsay rule for the truth of their contents, and show visible injuries and illnesses to many of the 55 cats removed from Ms. Way's home on April 25, 2011.

[11] Agent Smith and his colleagues continued to attend Ms. Way's home from April 25, 2011 until July 6, 2011 to capture the remaining cats. Agent Smith testified that he or one of his colleagues would attend at least twice a day to monitor the situation and the cat traps and to ensure that there was food and water for the cats remaining in the house.

[12] Detective Grondin is a Toronto Police Forensic Identification Services officer. He attended Ms. Way's home on April 25, 2011 to take photographs of the interior of the home and the cats that were being triaged by Dr. Li. D.C. Grondin testified and the photos he took were admitted as exhibits on this trial. He testified that while he was in the house the floor was extremely slippery due to cat feces and he observed no cat food bowls or water bowls.

[13] At about 9:40 p.m. on the night of April 24, 2011 Ms. Way returned to her home and was placed under arrest for animal cruelty. She was cautioned and advised of her rights to counsel by Detective Apostolidis. When confronted with the allegation that there was a cat with an eyeball hanging out of its head Ms. Way expressed shock. The defence sought to rely on this spontaneous utterance as a prior consistent statement.

Veterinary Evidence

[10] Each of the 107 cats that were eventually taken out of the house was examined and assessed by a team of veterinarians. Danielle Redhill, Jan Kelly and Magdalena Smrdelji were all qualified with varying degrees of focus and expertise in the veterinarian sciences and in particular in small animal medicine.

[11] Again, the Crown Factum is an excellent summary of that evidence.

Dr. Smrdelj

[14] Dr. Smrdelj is the Chief Veterinary Officer with the Ontario Society for the Prevention of Cruelty to Animals. She was qualified as an expert in veterinary medicine. She was one the veterinarians on staff at the OSPCA Newmarket Shelter on April 25, 2012. On that date she was notified that a large number of cats were being brought in to the shelter by the OSPCA following a mass seizure and she was the veterinarian who conducted the examination of all of the animals taken from Ms. Way's house minus two.

[15] Dr. Smrdelj testified about the chaotic and stressful nature of examining the cats seized from Ms. Way's house. She described most of the cats as being feral and factitious and many of them needing sedation to be examined properly.

[16] Dr. Smrdelj testified that she did not have an independent recollection of examining each of the cats, but that the process for examining the cats was that one of the veterinary technicians would be responsible for capturing the cat from its cage. It would be examined either using gauntlets (gloves to prevent bites) or using a cat bag with zippers that could be opened to assess each part of the animal. The examination would typically start at the head and end at the tail. Dr. Smrdelj would call out any abnormality or anything that could assist in justifying her decision to euthanize the animal. A second veterinarian, Dr. Black, would write down word for word what Dr. Smrdelj would say. Dr. Black would be standing next to Dr. Smrdelj and would also confirm and corroborate what Dr. Smrdelj was saying as she was going about her examination. Dr. Black was also in-charge of administering narcotics to the cats and if Dr. Black had a syringe in her hand one of the veterinary technicians would scribe what Dr. Smrdelj was saying. The hand written notes created by Dr. Black or a veterinary technician would be reviewed for errors by Dr. Smrdelj and would later be entered in the computer resulting in a computer record. The computer records were admitted as business records and are admissible for the truth of their contents.

[17] Dr. Smrdelj testified from the computer printout and provided her opinion about the causes and consequences of what she was seeing in each of the cats she examined. She also provided an opinion about patterns that were evident to her as a result of examining the whole population of cats.

[19] Below is a summary of some of the evidence provided by Dr. Smrdelj about some of the cats that she assessed. Clear from this summary alone, not to mention the rest of the evidence provided by Dr. Smrdelj is that most of the animals taken from Ms. Way's home were clearly inadequately nourished, hydrated and sheltered and that many of the animals were suffering from unnecessary pain and injury:

Evidence from August 26, 2014

Cat 19 (pgs. 4-8):

• Examined using a cat bag on April 26, 2012
• Fractious, feral lunging, fighting scratches evident
• Urine scalding and crusting fecal matter on the hind legs consistent with sitting in urine and feces for a prolonged period of time; extending from the ankle to the bend of the leg of the cat; required nursing care: wounds could be bathed and cleaned and if there was infection then veterinary care could be involved; burning and discomfort caused by these lesions
• Mild periodontal disease: serious plague and tarter buildup

Cat 21 (pgs. 11-16):

• Examined using a cat bag on April 26, 2012
• Feral and demonstrating biting behaviour
• Male cryptorchidism (one descended testicle - could be developmental)
• Severe malocclusion (jaw not aligned could be developmental or from trauma)
• Urine and fecal crusting: on hind legs from ankle to knee bend; crusting presenting indicating an ongoing chronic problem - not something that would have happened in 24 hours. At least three to five days for the first scab to start healing after prolonged exposure sufficient to cause a scab and then much more time for the sloughing of the scab and the chronic process to take place. Would not be caused by sitting in the cat's own feces or urine in a carrier for one or two days. Exposure to contaminants for at the very least a week; would require nursing and potentially veterinary care; would cause pain and burning.

Cat 25 (pgs. 24 - 32):

• Examined on April 26, 2012
• Examined in the cat bag
• Feral, biting, aggressive and lunging
• Mild dental disease
• Mild conjunctivitis with tearing indicating the initial stages of an URI
• Three out of nine body score - which is very thin; there would be very little fat over the ribs, the ribs are protruding and the backbone processes are all protruding and the hip bones are protruding and there is no fat in the abdomen; this cat scored a three out of nine due to inadequate food or being unable to access the food due to being bullied; URI would not have played a role in the level of emaciation demonstrated by this cat
• Urine and fecal scalding on the hocks - more acute as there was no indication of crusting
• All symptoms would have been obvious to the untrained eye
• Would require veterinary care

Cat 28 (pgs. 32 - 36):

• Examined on April 26, 2012
• Fracture of one of the canine teeth; caused more often than not by trauma; pain associated with this and would require veterinary care; would be very obvious to the untrained eye
• Pregnant
• Mild dental disease
• Terrified with severe emotional distress: she was demonstrating the freeze response; her pupils were hugely dilated and she was doing everything she could to show an emotionally terrified state

Cat 30 (pgs. 38 - 59):

• Assessed on the day it was brought into the shelter - April 26, 2012
• Severe conjunctivitis with enophthalmos (globe rupture and scarring) with an ongoing pathology, which demonstrated as inflammation all caused by an upper respiratory illness. The symptomology indicates that this is a chronic ongoing case of upper respiratory illness. This would not occur within a few days this would occur and could even take a few weeks. There are medical and nursing needs that would be required. There would be pain associated - eye lesions are very uncomfortable and painful
• Severe periodontal disease requiring multiple extractions requiring veterinary care
• All symptoms would be visible to the untrained eye

Cat 33 (pgs. 59 - 68):

• Examined the day it was brought into the shelter or the day following (April 26, 2012 or April 27, 2012)
• Feral, fractious, biting and lunging
• Emaciated - meaning severe loss of body condition including muscle mass, fat content and all of the bone protrusions are prominent
• Alopecia on the hocks. This was described as the initial stages of fastidious grooming before progressing to scalds from urine and fecal matter
• 15 - 20% dehydrated - meaning that there is so little skin elasticity that the cat's skin is not returning to normal. If a skin tent was performed it would remain in a tent and not return to normal. The emaciation and dehydration in this animal was caused as a result of being unable to access resources like food and water. One overnight period (from the time it was taken from the house to the shelter) would not have impacted in any meaningful way on the findings related to emaciation or dehydration. This cat would have required an IV line to treat its illnesses.

Cat 35 (pgs. 68 - 108):

• Examined the day or the day following being brought to the shelter (sometime between April 26, 2012 and April 28, 2012)
• Patchy alopecia throughout the body caused by poor nutrition and or one of the other stresses associated to living in the accused's home
• 10% dehydrated attributable to being unable to access resources in the home.

Cat 43 (pgs. 108 - 114):

• Seen initially on April 26, 2012
• Noted to be fearful and 10% dehydrated that could not have resulted overnight
• Mild tartar
• Patches of alopecia caused by poor nutrition and stress

Cat 45 (pgs. 114 - 120):

• First examined between April 26, 2012 and April 28, 2012
• Severe corneal edema of the right eye characterized by having a foggy white film over the eye
• Left eye globe rupture; when looked at together with the right eye there was a progressive ongoing picture of an upper respiratory illness; globe ruptures happen as a very extreme development of upper respiratory illnesses; it is usually the most severe type of clinical sign you will see; the corneal edema and the globe rupture would have happened prior to being brought to the OSPCA - the symptoms are indicative of a very chronic pathology; they would require veterinary care
• Severe periodontal disease

Cat 49 (pgs. 120 - 127):

• Examined between April 26, 2012 and April 28, 2012
• Noted severe corneal edema with severe purulent conjunctivitis - meaning swollen, red, tearing eye with pussy discharge indicating that there is a bacterial component to secondary to the initial viral infection; the eye would appear red with the inside of the eye being swollen and usually protruding a bit and is red with a greenish yellowish discharge; caused by an infectious agent; this would take at least a week to develop
• Extreme enophthalmos/microphthalmia
• Skin lesions on the head and neck
• Moderate periodontal disease
• This cat was in need of significant veterinary care.

[20] Aside from the specific observations made of each of the cats, Dr. Smrdelj also testified that when she walked into the trailer where the cats were being housed there was not a single meow. This happened for three days straight. Dr. Smrdelj said it was unusual to walk into an area where not a single cat meows. The cats were in a state where they weren't vocalizing. Also, Dr. Smrdelj testified that she and her co-workers had to have all of the windows in the trailer open because the smell of ammonia from the animals was overwhelming. The smell was so overwhelming that the veterinarians and the veterinary technicians were starting to have dizzy spells so they had to take turns going outside to get some fresh air.

[21] Speaking of patterns in the population, Dr. Smrdelj testified about the prevalence of upper respiratory illness, alopecia, scalding from urine and feces, dehydration, malnourishment and moderate to severe periodontal disease.

Upper Respiratory Illness

[22] Perhaps most prevalent amongst the population of cats seized from Ms. Way's home was the presence of a chronic upper respiratory illness. The upper respiratory illness, most likely the herpes virus, manifested itself in the cats seized from Ms. Way's home from the very minor stages of the infection - tearing, nasal discharge and conjunctivitis to the very extreme, serious and advanced end of the spectrum - globe ruptures. Dr. Smrdelj testified that symptoms of an upper respiratory illness were present in many of the animals and indicated: i) a lack of veterinary care both preventatively and as treatment; ii) a chronicity of the upper respiratory illness amongst the population; iii) an overly dense cat population; and iv) immunosuppression because of poor shelter conditions and inadequate nutrition and hydration. Dr. Smrdelj described many of the symptoms of the upper respiratory illness seen in the cats as painful. Upper respiratory illnesses are completely avoidable, and therefore the pain associated with the upper respiratory illness was completely avoidable. Had Ms. Way had her cats vaccinated they would not have become infected with the upper respiratory illness. In the absence of vaccinating her cats, Ms. Way could have alleviated the significant pain felt by the cats in the more serious stages of the upper respiratory illness had she taken them to the veterinarian for care. None of this happened and as a result Ms. Way was responsible for the permitting of unnecessary pain and suffering experienced by each of the cats suffering from an upper respiratory illness.

Urine and Fecal Scalds and Matting

[23] Many of the cats examined by Dr. Smrdelj also presented with urine and fecal scalds on their hind legs. Dr. Smrdelj testified that the scalding was caused because the cats were sitting in urine and feces. Scalding from urine and feces is very rare and takes a long time to develop. Cats have natural barriers (fur, oils on their skin etc…) to prevent against being scalded by everything they touch. Cats are also fastidious groomers. The presence of scalds indicates that the cat was being overwhelmed in its environment and was therefore unable to groom itself to the point where the cat's natural defences were being overborne. Dr. Smrdelj testified that this is indicative of poor husbandry, a picture corroborated by the photos of Ms. Way's house. For many of the cats with urine and fecal scalds there was indication that this was a chronic problem. Dr. Smrdelj testified about the presence of crusting and sloughing of scabs indicating that the cause of the scalding was not being removed and was persistent. This was indicative of an ongoing environmental issues and not something that developed overnight or even within a few days.

[24] There was clear evidence by Dr. Smrdelj that the scalds would be painful and feel like a burn. These scalds required veterinary attention and were completely avoidable. Had Ms. Way had enough litter boxes for all the cats, or had she cleaned her house so that her animals didn't have to constantly be exposed to feces and urine these scalds would not have occurred and the cats would not have been made to suffer unnecessarily.

[25] Also indicative of inadequate shelter and poor husbandry is the matting seen in a number of the animals examined. Dr. Smrdelj testified that the matting was caused by prolonged exposure to poor husbandry practices and unhygienic conditions. Essentially she said that the cats that were matted were overwhelmed in their ability to groom themselves and the urine and fecal matter from their environment became matted in their fur. She compared this to growing dreadlocks and said that this was not a process that would happen over- night or even within a few days. She was also clear to say that this is not something that would have been caused by animals sitting in their own excrement in cages after being brought to the OSPCA shelter.

Alopecia

[26] Dr. Smrdelj testified that there was alopecia present in many of the animals she saw. Alopecia is characterized as patches of hairlessness. Generally, according to Dr. Smrdelj alopecia can be caused by over grooming. When alopecia is caused by over grooming the patches of hairlessness would be seen in the underside of the abdomen or on the legs. In many of the cats seized from Ms. Way's home the patches of alopecia were seen on parts of the cat that would be difficult to over groom like the back of the neck. The pattern of alopecia in the population examined by Dr. Smrdelj combined with Dr. Smrdelj's other observations of the population, indicated to her that the alopecia was not as a result of over grooming but rather as a result of poor nutrition and living in a stressful environment. In this respect, Dr. Smrdelj explained that while many of the cats were not underweight the food that was being provided was not adequate to support them in their environment. Additionally, there was some evidence to suggest that some of the cats were competing for resources and further that some cats were not receiving sufficient food and as a result were emaciated. This inadequate nutrition result in, amongst other things, alopecia.

Dehydration, Emaciation or Inadequate Hydration and Nutrition

[27] As described above a number of cats were emaciated or dehydrated to such an extent that they required IV fluids and veterinary care. For many of these cats, they were examined on the first day that they were brought into the shelter and it was Dr. Smrdelj's evidence that the emaciation and dehydration would have been present prior to being brought into the shelter. There was also evidence that the cats were being fed at the house once the OSPCA entered Ms. Way's home, and that food and water was available for every cat in their enclosure once they arrived at the OSPCA shelter. The fact that some cats were emaciated and dehydrated demonstrates that Ms. Way was not providing adequate food and water for those animals.

[28] Further, as described above, it was clear from Dr. Smrdelj's evidence that many of the cats were immunosuppressed as a result of inadequate nutrition and hydration. This would have been caused by fighting for resources, a behaviour we heard is common in large dense cat populations, and because there was inadequate and insufficient feeding and watering stations, and because the cats were not receiving food with the proper nutritional content required to support them in the environment they were living in.

Periodontal Disease

[29] Lastly, Dr. Smrdelj testified about what she observed in many of the cats mouths. Many of the cats had moderate to severe periodontal disease, with some of the cats even have fractured canine teeth. For the animals with severe periodontal disease serious veterinary intervention was required. Dr. Smrdelj testified that there was puss and a strong odour of decay coming from the cats mouths and that this would have affected their overall health and well-being. She was clear that either the symptoms of the actual periodontal disease itself or the side effects like depression, drooling and not eating would have been noticeable to a pet owner.

[30] Dr. Smrdelj also made the link between periodontal disease and stress. After observing the population of cats seized from Ms. Way's home she also commented that the stress of the environment and the significant amount of cats with an upper respiratory illness would have exacerbated the extent and rate of periodontal disease. She compared this to soldiers fighting - if immune system soldiers are called to another battle they are not available to fight against the invasion of periodontal disease - which is what she believed contributed to the extent of periodontal disease in this population.

What is Adequate Food?

[31] Dr. Smrdelj provided her opinion about what adequate food would be for this population of cats. She described that each cat should have its own feeding bowl and that it should be away from the litter box and other animals.

[32] The food should also be nutritionally adequate to address the particular needs of each cat. We heard that there are different needs for pregnant cats and for kittens and for cats in high stress situations. There is no evidence that any of these unique needs were in any way being addressed by Ms. Way and the food she was providing. In fact, the more cats she got, and the more stressful the situation became the cheaper and poorer quality of food she purchased.

What is Adequate Water?

[33] Dr. Smrdelj also testified about what adequate water provision would be indicating that there should be lots of fresh water and many (up to one per cat) bowls to allow each cat unrestricted access to fresh water.

What is Adequate Shelter?

[34] Dr. Smrdelj testified at length about what adequate shelter would look like for this number of cats:

• One litter box for each cat plus one and depending on the number of cats and they should be scooped four to five times a day
• Enough room for each cat to hide, stretch, play, eat, sleep and defecate. There was some discussion that studies have indicated that 18 square feet per cat is required in populations of up to 20 cats. There has been no research to indicate how much space is required to house 107 cats because no one would want to put cats in that situation in order to study it
• Proper husbandry and an environment that is clean, hygienic and not covered in mould, feces, urine and debris

[35] To conclude, Dr. Smrdelj provided her findings about this population of cats based on her holistic assessment of the situation. Essentially, what she found was that: these animals had no veterinary care or vaccines; there was significant fighting for resources (indicating inadequate food and water provision); there was not enough nutritional support for the animals given their compromised immune systems and the stressful living situation (again indicating inadequate food and water provision); there was a seriously unhygienic living environment; and many of these cats were suffering unnecessarily as a result of the illnesses they developed as a result of the above.

[12] Some aspects of Dr. Smrdelj's evidence was challenged and qualified in cross-examination. She agrees that the cats were likely somewhat stressed by the dynamics of the mass round up and removal, including the sight of the "hazmat-suited" firefighter and similarly equipped OSPCA workers. This stress has to be considered as a possible cause of the poor condition of the cats when examined after a few days of being individually caged at the examination facility. Stressed cats may not eat or drink, and so they may have been more emaciated and more dehydrated when examined than they were prior to the intervention of the authorities.

[13] Dr. Sheldon Javine, a veterinarian, was called by the defence to respond to the evidence of Dr. Smrdelj. His evidence was very useful in understanding the mechanics of the various medical conditions recorded by the OSPCA. His evidence confirmed that the conditions in this house would have been a breeding ground for disease throughout the entire cat population.

[14] Dr. Javine's evidence also supports the defence concern that stress to the cats by the "invasion" of the authorities and the round up and collection may well have caused the condition of the cats to have deteriorated from the time of the "round up" until a day or two later, when they were assessed by Dr. Smrdelj.

[15] I adopt the following observations drawn from the Crown's Factum:

[37] …, Dr. Jafine provided valuable evidence about his view on the conditions in Ms. Way's home. Specifically he said that no veterinarian with a licence would ever say that the conditions in Ms. Way's home were adequate. Further, he clearly indicated that there was a completely inappropriate amount of liter boxes. He said that for this population there should have been at least 30 litter boxes, as opposed to the four depicted in the photos.

[39] Lastly, upon reviewing the photographs of Ms. Way's home, Dr. Jafine testified that based solely on his review of the photos there was an inadequate amount of food and water bowls for the amount of animals in the house. Again, this was corroborative of Dr. Smrdejl's evidence about the adequacy of the food and water being provided to the cats by Ms. Way.

[16] Both expert veterinarians, Jafine and Smrdelj, testified about what behaviour one would expect to see in a large, confined cat population. There would be fighting for limited resources, specifically food and water.

Testimony of the Accused

[17] Ms. Way testified in her defence. In her evidence, Ms. Way described: her history of owning cats; her work history; and portions of her personal and financial life. Again, from the Crown's Factum:

[41] In essence she testified that she loved her cats but that the situation got out of control in the middle of 2009. The cats continued to grow in population and Ms. Way did nothing to control the population growth. Her focus was on getting rid of some of the cats by trying to find homes for them. She emailed her friends and co-workers and made attempts to contact the Humane Society and the OSPCA to no avail. …

[42] Ms. Way testified that initially she took in three kittens, followed in relatively short order by a number of stray cats. She did initially take the stray cats to the veterinarian but eventually when Momma, one of the stray cats she had taken in, had a litter of kittens she stopped taking any of the cats to the vet as her focus shifted to finding a home for the kittens. It is from this point that the population started expanding and grew exponentially from 19 cats in mid-2009 to 107 in mid-2011.

[43] As a result of the growth in the cat population Ms. Way's house fell into extreme disrepair. She testified that there were spots on the rug where she would try to clean. She bought one bottle of ammonia once to try to clean her house and she would vacuum with a vacuum from 1952 to try to remove the cat fur. She also testified that she would scoop the feces off of the mattress weekly and that she would try to clean up the piles of feces in other areas of her house when she could. Despite the extremely unsanitary conditions of the house Ms. Way never called a cleaning service.

[44] Ms. Way also testified that at some point after the cat population grew out of control a leak developed in one of her pipes. Rather than have a repair-person come in to fix the leak, Ms. Way chose to shut her water off citing embarrassment at the situation. The same reason was given for failing to remove furniture covered in cat urine and feces.

[45] Ms. Way testified that she purchased food for her cats every day and that she would put water out for them. The food she was purchasing was from the grocery store and declined in quality over time. She agreed that she was spending essentially the same amount of money on food and litter between 2009 and 2011 despite the significant growth in the cat population. She also testified that despite not knowing how many cats she had after 2009 and not being able to distinguish all of the cats from each other she would try to ensure that her cats were eating and drinking.

[46] When confronted with the evidence of illness amongst her cats, Ms. Way testified that she never saw any signs of illness and that her cats were peaceful. They never fought. Despite this, Ms. Way was shocked to learn that one or her cats was blind as she was completely unaware that at least one of her cats couldn't see.

[47] Ms. Way agreed that she only had four litter boxes down in her basement and that she would try to empty them once a day. The reason for this limited amount of litter was that was all she could carry and the stores sold a limited amount of litter. Ms. Way never took a taxi or asked anyone for a ride to ensure that she could bring home more litter or cat food.

[48] During the time that Ms. Way had care of the cats in question she had over $200,000.00 of equity in her home and her mortgage was completely paid off. She also had an RRSP of about $180,000.00 and a savings account with over $5000.00 dollars in it. She was also working for significant chunks of time between 1998 and 2011 and was quite employable given that she had four post-secondary degrees including a law degree. At no point during her time with the cats was Ms. Way impecunious or financially unable to care for her cats.

Testimony of Defence Witnesses

[18] Ms. Way described early 2011 as a "truly hectic" time. She was working two teaching jobs, which meant 6 days a week including evenings and weekends, and all the while trying to tend to the ever-growing population of cats in the house. Her days stretched from 5 a.m. to midnight most days. She found it "very, very stressful". She had lost all count of the number of cats that she had and it was obviously overwhelming for her. She was now sleeping on the living room couch, in a room full of cats. She would sleep there literally covered in cats and wake up in a sea of cats. She told us that she was tired; she was weak and she felt herself to be "in poor shape". There was definitely a note of compulsion in her recollection of that experience. As she tried to explain her ongoing behaviour, she herself described it as something she felt compelled to continue with. She explained that, "I just had to keep going."

[19] John Osborne gave financial advice to Ms. Way during the material time period. He was able to say that Ms. Way was very concerned about the number of cats and she told him that she was trying to look after them. In both 2009 and 2010, Ms. Way told him about the concerns she had and sought his help in finding adoptive homes for the cats. He also was able to say that the accused was not without financial resources to try to deal with the situation.

[20] Robert Goode is a friend of Ms. Way's. He was aware of the cat problem. On her behalf he tried to find homes for them. He spoke to six or seven people, with no success. He could see that the situation was of great concern to Ms. Way.

[21] Rosemary Helmer has known Ms. Way since the 1990's. In 2009 and 2010, she was aware that Ms. Way had a problem with too many cats. She could tell that Ms. Way was obviously upset about the situation but did not get the sense that she was overly concerned. She tried to find someone to take some of the cats but was unsuccessful.

[22] These facts are the context within which I must determine whether or not Ms. Way has committed the criminal offences charged in the Information before the Court.

The Law

[23] Ms. Way stands charged with "Cruelty to Animals" pursuant to two discrete sections of the Criminal Code: s. 445.1(1)(a) and s. 446(1)(b).

Section 445.1(1) - Causing Unnecessary Suffering

Everyone commits an offence who

(a) wilfully causes or, being the owner, wilfully permits to be caused unnecessary pain, suffering or injury to an animal or a bird;

(3) For the purposes of proceedings under paragraph (1)(a), evidence that a person failed to exercise reasonable care or supervision of an animal or a bird thereby causing it pain, suffering or injury is, in the absence of any evidence to the contrary, proof that the pain, suffering or injury was caused or was permitted to be caused wilfully, as the case may be.

Section 446(1) - Causing Damage or Injury

Everyone commits an offence who

(b) being the owner or the person having the custody or control of a domestic animal … wilfully neglects or fails to provide suitable and adequate food, water, shelter and care for it.

(3) For the purposes of proceedings under paragraph (1)(a), evidence that a person failed to exercise reasonable care or supervision of an animal or a bird thereby causing it damage or injury is, in the absence of any evidence to the contrary, proof that the damage or injury was caused by wilful neglect.

Section 429(1) - Wilfully Causing Event to Occur / Colour of Right

Everyone who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part, wilfully to have caused the occurrence of the event.

(2) No person shall be convicted of an offence under sections 430 to 446 where he proves that he acted with legal justification or excuse and with colour of right.

[24] I have absolutely no hesitation in finding, beyond any doubt, that the animals in the accused's care and custody were injured, in pain and suffering. The voluminous evidence set out earlier speaks for itself.

[25] These animals were malnourished, dehydrated, filthy and diseased. The conditions in the house when the authorities intervened were horrendous. The photographs of the interior of the house reminded me of the pictures I have seen of flood damage, where the interior of a house and all of the furniture and fixtures are covered in mud. Only that is not mud you see in these pictures, it is wall to wall cat feces, cat fur and cat urine, and wall to wall cats.

[26] The accused, and no one else, had the responsibility to care for these animals and she alone is completely responsible for the circumstances that existed in that house on April 24, 2011. It is putting it mildly to say that what was observed by the authorities reflected a gross, marked departure from the conditions that any reasonable person would provide for their household pets, or any other animal for that matter.

[27] There can be no serious debate that the actus reus of the offences has been proven beyond any reasonable doubt by the Crown's case.

[28] This case turns entirely on a proper understanding and application of the required mens rea of the offences charged. Essentially, it comes down to this: Does the Crown need to prove that the accused intended the consequences of her failure to care for these animals? Or, must the Crown only prove that she actually knew that her conduct was causing suffering, and failed to act accordingly? Or, is it sufficient for the Crown to simply prove that she was aware of the circumstances that existed and ought to have foreseen that her conduct would cause the prohibited consequences, the suffering inflicted on these animals?

[29] The accused argued that the "colour of right" exemption in s. 429 should apply to her conduct. She submits that an honest but mistaken belief in a benign set of circumstances exempts her from criminal culpability.

[30] These are the questions that require answers in this case.

The Mens Rea

[31] A proper understanding of the mental element of these offences is set out very clearly by Justice Gorham in R. v. Bennett and R. v. Clarke. As Justice Gorham observes, these are negligence-based offences arising from a statutorily mandated standard of care. A failure to provide adequate care is an offence if the necessary mens rea is present. Because there is a stipulated duty of care prescribed by law, a purely subjective mens rea is not necessarily an element of the offences charged.

[32] The mens rea of these offences is measured by a modified object test. Understanding this is the key to appreciating that the Court's task is to determine, not whether the accused necessarily intended harm to these animals but, rather, what harm a similarly situated, reasonable person, aware of the conditions prevailing at the material time, ought to have foreseen as flowing from those conditions, conditions that her acts and omissions had created.

[33] To quote Justice Gorham directly, these provisions of the Criminal Code are "… aimed at establishing a uniform minimum level of care to be provided for those to whom it applies, and this can only be achieved if those under the duty are held to a societal, rather than a personal, standard of conduct".

[34] Animal cruelty offences criminalize the "wilful" infliction of harm. Section 445.1 read together with s. 429 provides that to establish that the accused acted "wilfully" the Crown must prove that "pain, suffering or injury" was a reasonably foreseeable consequence of the accused's conduct and that knowing this the accused was reckless as to whether those consequences occurred. The Crown does not need to prove any intent to be cruel, or a direct intent that the animals would in fact suffer.

[35] It is not necessary for the Crown to prove subjective foreseeability of the consequences, only that "pain, injury and suffering" was a reasonably foreseeable consequence of failing to provide "food, water, shelter and care". The Crown does not have to prove that the accused intended what resulted if it establishes that a reasonable person, similarly situated would realize that her acts or omissions would deprive the animals in her care of adequate food, water, shelter or care.

[36] A marked departure from the standard of care expected of a reasonable person in the circumstances of the accused has to be proven. An accused will not be criminally liable if a reasonable person, in the position of the accused would not have been aware of the risk. The standard, against which the conduct of the accused is to be measured, is that of what is expected of a reasonably prudent person in similar circumstances.

[37] Not all negligent care of an animal will constitute an offence under s. 446(1)(b). Again, I am instructed by Justice Gorham in Bennett at paragraphs 33 and 34:

33 … The failure to provide adequate care must constitute a marked departure from the care a reasonable person would provide. If this marked departure is proven then the Court "must consider evidence about the actual state of mind of the accused, if any, to determine whether it raises a reasonable doubt about whether a reasonable person in the accused's position would have been aware of the risk created by this conduct. If there is no such evidence, the court may convict the accused" (see Beatty, at paragraphs 48 and 49). These concepts were succinctly summarized in R. v. Gosset, [1993] 3 S.C.R. 76, by the following comments (at pages 95 to 96):

Once a marked departure from the standard of care is established, the focus of the investigation under penal negligence must shift, therefore, to the question of whether the accused was capable of recognizing that he or she had fallen short of the standard of care required in the circumstances by the charging section.

34 .... The objective assessment of fault also [has] to consider the capacity of an accused to meet the standard of care required in the circumstances, and the accused's ability to control or compensate for his or her incapacities. There is, however, no 'reverse onus' on an accused to establish on the balance of probabilities that he or she exercised due diligence in order to negate a finding of fault … R. v. Finlay, [1993] 3 S.C.R. 103 at paragraph 27.

[38] Therefore the Court must consider the particular capacity of this accused to meet the required standard of care and to be held responsible. Was this accused capable of recognizing that she had fallen short of the standard of care required in the circumstances by the charging sections?

[39] The accused in this case urged consideration of the "colour of right" exemption in s. 429(2). That section provides that no person is to be convicted of these offences if they prove that they acted "with colour of right". To come within this exception the accused must show that she believed in a state of facts which, if actually true, would constitute a legal justification or excuse for her conduct.

[40] If the circumstances were such that a reasonable person, in the position of the accused would not have been aware of the danger of harm, or would not have been able to avoid creating the risk of deprivation and suffering of these animals then she must not be convicted.

[41] There is no 'reverse onus' on an accused to establish, on the balance of probabilities that he or she exercised due diligence in order to negate a finding of fault. The ultimate burden of proof remains always on the Crown. However, it is incumbent upon the accused to bring herself within the s. 429(2) exception by proffering a foundation for such a belief.

[42] I am satisfied that only someone operating daily in a severely delusional state could possibly have thought that the conditions in which these animals were living were acceptable. What existed in this house was a sizable, indoor, inbred, feral cat colony that was completely and obviously out of control. It would be apparent to anyone that the members of this overblown cat colony would inevitably suffer the disease and deprivation that actually resulted.

[43] Apart from wondering as a lay person how any reasonable person could have allowed this intolerable situation to develop and linger, I have no evidence that this accused was delusional. She is a mature, educated woman. She is a lawyer and a teacher. I am aware through my own general knowledge that there is a recognized "cat lady" syndrome or disorder. That it is a condition akin to what one sees in compulsive hoarding behaviour. In the case before me there is no evidentiary basis to assess Ms. Way's conduct on anything other than a presumption of her being sane and capable of fully appreciating the true state of the situation.

[44] To be blunt, no one in their right mind could possibly have misunderstood that these cats were suffering, that the situation was extreme and that serious remedial action was immediately required. There is no air of reality to the "colour of right" claim on the evidence before me. This accused could not possibly have had an honest belief in a benign set of circumstances and to be perfectly clear, I find as a fact that she did not.

[45] Evidence of her awareness that there was a serious problem can be inferred from her attempts to address the situation, as it existed, a considerable time before the intervention by the authorities. The early cats were sterilized, immunized and cared for. When the population began to get out of control the new cats were no longer sterilized or immunized. She knew that they should be but she lacked the resources to do so. As the population grew the level of care faded away. The accused knew this. She tried to give cats away. There were no takers. The population continued to grow. The conditions undoubtedly continued to deteriorate.

[46] In 2009, two years prior to the date of these charges, the accused had by her estimation about 35 cats in her house. On the day of the intervention the accused thought she had about 60. We now know that in fact there were at least 107. Things had progressed to the point where attempts to care for this colony of cats were all-consuming. Her life revolved around efforts to feed and water them. These efforts illustrate a real awareness of the problem, but her efforts were clearly futile and far from adequate to provide a sufficient level of care. She must have known this.

[47] It may very well be that it was actually impossible to care for 107 cats in a modest-sized house, in the city. The size of the colony was literally overwhelming for one person to handle alone. The options were few, but obvious. The herd had to be culled. This does not seem to have been an option acceptable to the accused and the result is the tragic situation that was so graphically laid out in the evidence before me.

Conclusion

[48] The Crown has established its case against the accused. Every element of both offences has been proven beyond a reasonable doubt and I find the accused guilty as charged.

Released: March 10, 2016

Signed: Justice William B. Horkins