Court Information
Ontario Court of Justice
Date: 2018-03-02
Court File No.: Brockville 1911-998-15 1233
Parties
Between:
Her Majesty the Queen
— and —
Jean Weeks
Judicial Officer and Counsel
Before: Justice A. Wheeler
Heard on: January 18, 2018
Reasons for Judgment released on: March 2, 2018
Counsel:
- John O'Halloran, counsel for the Crown
- Daniel Nugent, counsel for the defendant, Jean Weeks
Judgment
Wheeler, J.:
The Charge
[1] Ms. Weeks is charged with a single count of breach of probation. The terms of her probation order included the following:
Not to own, possess, care for, or provide shelter to or in any ways act as a custodian to any animals.
Not to reside where any animals are maintained.
Not to possess animals in any place that you own or reside.
[2] The issue in this case is whether Ms. Weeks was in breach of the terms of her probation when she knowingly allowed her son to keep chickens at her house, and knowingly allowed her granddaughter to keep mice there.
Facts
[3] On September 17, 2015 the Ontario Society for the Prevention of Cruelty to Animals executed a search warrant at a house owned by Ms. Weeks. The house was a small bungalow in a rural area. There were two mice in a bedroom, in what appeared to be a suitable mouse cage. Both bedrooms were locked when the officers arrived. There were also several chickens in a pen in the back yard.
[4] Ms. Weeks was not present when the search was conducted. Ms. Weeks' son, his girlfriend, and Ms. Weeks' granddaughter, all adults, were present. Ms. Weeks arrived a short time later, after being advised by telephone that the OSPCA was there.
[5] Ms. Weeks testified. She acknowledged that she owns the house and that she was aware of the terms of her probation. She rents rooms out in the house, and testified that she had rented a room to her son and his girlfriend because they had no place else to go, and that her granddaughter was also living there.
[6] Ms. Weeks testified that the mice belonged to her granddaughter, Lilly. The room that Lilly was using was actually Ms. Weeks' own room, but she gave that room to Lilly, and gave the key to Lilly's father. Ms. Weeks knew that the mice were there.
[7] Ms. Weeks testified that the chickens belonged to her son Dwayne and his girlfriend, and that they had only just moved in. Ms. Weeks knew about the chickens, and testified that the chickens were going to be eaten.
[8] She also knew that Dwayne and his girlfriend had dogs. There were, however, no dogs present at the time of the search, and the evidence arising from the search would not permit a reasonable conclusion that dogs were being kept there at that time. During the search, the OSPCA officer noted a tin labelled as containing dog biscuits but did not look inside. There was also what the officer thought was a small amount of dog feces in the basement. The Crown did not ask me to draw an inference that dogs were being kept at the house at the time of the search. The Crown focussed its case on what was found on the day of the search, and did not submit that Ms. Weeks' evidence about the dogs would form a basis for conviction.
[9] In any event, the question of whether or not Ms. Weeks was in breach of her probation turns on Ms. Weeks' relationship to the animal, not on the type of animal.
[10] Ms. Weeks knew that she was not allowed, in her words, "to be around animals" because of the terms of her probation. She testified that because of this, she was staying in a tent on nearby land that she had long-standing permission to use. She stated: "I'm aboriginal, so I didn't mind staying in a tent." Ms. Weeks testified that she had been staying in the tent for two to three weeks prior to the search.
Findings of Fact
[11] On the evidence as presented, I make the following findings of fact:
- Ms. Weeks was the owner of the house.
- Ms. Weeks knew about the terms of her probation order.
- Ms. Weeks had moved out of the house at some point in the weeks prior to the search being executed.
- Ms. Weeks was renting or effectively renting (through contributions to expenses) the house to her son and his girlfriend, and her granddaughter.
- Ms. Weeks knew that the mice and chickens were present at the house.
- The chickens belonged to Ms. Weeks' son and his girlfriend, and they were the custodians or caretakers of the chickens.
- The mice belonged to Ms. Weeks' granddaughter, and she was the custodian or caretaker of the mice.
Legal Analysis
Condition #6: Not to own, possess, care for, or provide shelter to or in any ways act as a custodian to any animals
[12] On these facts, the issue is whether Ms. Weeks was in breach of the probation order. I will start with condition number 6:
- Not to own, possess, care for, or provide shelter to or in any ways act as a custodian to any animals.
[13] Ms. Weeks did not own the mice or chickens. Her family members did. Did Ms. Weeks possess the mice or chickens? The Criminal Code defines possession as follows:
- (3) For the purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
[14] The Supreme Court addressed this provision in R. v. Morelli, 2010 SCC 8. Writing for the majority, Fish J. held [emphasis original]:
15 For the purposes of the Criminal Code, "possession" is defined in s. 4(3) to include personal possession, constructive possession, and joint possession. Of these three forms of culpable possession, only the first two are relevant here. It is undisputed that knowledge and control are essential elements common to both.
16 On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with an act of control (outside of public duty): R. v. Beaver, [1957] S.C.R. 531 (S.C.C.), at pp. 541-42.
17 Constructive possession is established where the accused did not have physical custody of the object in question, but did have it "in the actual possession or custody of another person" or "in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person." (Criminal Code, s. 4(3)(a)). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person.
[15] I find that Ms. Weeks did not possess the mice or chickens. She knew they were at the house, but she did not put them there and she was not keeping them there, nor did she exercise direct control over the mice or chickens. I note as well that the Crown did not argue the case on the basis that I should make a finding of possession.
[16] The Crown argued that Ms. Weeks, by knowingly permitting her family members to bring animals to the property, was in contravention of the "not to provide shelter to… any animals" component of condition number 6. This requires consideration of what is meant by "not to provide shelter," and whether it could be construed as "not to provide shelter, directly or indirectly."
[17] I take the same approach to interpretation that Crewe J. took in R. v. Ellis, 2016 ONCJ 168, in relation to the interpretation of a recognizance of bail. Crewe J. examined the plain, everyday meaning and the purpose of a condition that the accused "not be away from your place of residence except in the company of one of your sureties". This seems to me to be essentially consistent with the statutory interpretation approach adopted by the Saskatchewan Court of Appeal in R. v. Allaby, 2017 SKCA 25, where the issue was whether a public library was a "community centre" within the meaning of a prohibition order under s. 161 of the Criminal Code and under the terms of a probation order.
[18] To the extent that the Allaby statutory interpretation approach might result in more expansive interpretation of the terms of a probation order, I would prefer the approach taken by Crewe J. Depending on the nature of a condition in a probation order, it can create an almost uniquely personal scope of potential criminal liability for the accused person in the event of non-compliance. In determining whether their conduct might attract criminal sanction, an accused person should be able to rely on the plain, everyday meaning, as informed by the purpose behind the condition.
[19] Oxforddictionaries.com defines the verb "shelter" as: "protect or shield from something harmful, especially bad weather." Dictionary.cambridge.org defines it as "to protect yourself, or another person or thing, from bad weather, danger, or attack; to give someone a secret hiding place so that they will not be caught by the army, police, etc." Merriam-webster.com defines it as "to constitute or provide a shelter for: PROTECT," and "to place under shelter or protection."
[20] What these definitions have in common is that there is an emergency or temporary quality to the act of sheltering.
[21] Although the evidence and submissions did not address the purpose of the condition, it seems likely that it was meant to address concerns about Ms. Weeks's ability to care for, or her conduct towards animals.
[22] I find that as used in condition number 6 of Ms. Weeks' probation order, "shelter" meant that Ms. Weeks was not to have animals on even a temporary or passing basis.
[23] I find that Ms. Weeks was not sheltering the mice or the chickens. There was only an indirect link between Ms. Weeks and the animals. She was renting the house to family members, and allowing them to use the house as their own while she lived in a tent on nearby land. Ms. Weeks' son and his girlfriend were sheltering the chickens, and Ms. Weeks' granddaughter was sheltering the mice. I find that the relationship between Ms. Weeks and the animals was too indirect for her to be described as protecting or shielding the animals. Ms. Weeks was not in breach of condition #6.
Condition #7: Not to reside where any animals are maintained
[24] Condition #7 states:
- Not to reside where any animals are maintained.
[25] The mice and chickens were maintained at the house Ms. Weeks owned. However, given that she had moved to the tent on nearby land, I find that she was not residing there. Accordingly, she was not in breach of condition #7.
Condition #8: Not to possess animals in any place that you own or reside
[26] Condition #8 states:
- Not to possess animals in any place that you own or reside.
[27] I have already found that Ms. Weeks did not possess the animals. She was not in breach of this condition.
Verdict
[28] I find Ms. Weeks not guilty of breaching her probation order.
Released: March 2, 2018
Signed: Justice Alison Wheeler