ONTARIO

SUPERIOR COURT OF JUSTICE

BARRIE COURT FILE NO.: 263/09
DATE: 20120309

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

RONALD WAY
Appellant

C. Greene, for the Respondent
V. Rondinelli, for the Appellant

HEARD: March 5, 2012

On appeal from the decisions of Justice N. Dawson
dated May 29, 2009 (Conviction)
and August 21, 2009 (Sentence)

R. MacKINNON J.:

A. Background

[1] This is a summary conviction appeal. The appellant appeals against his conviction and sentence for two violations of section 65(1) of the Health of Animals Act , 1990 imposed upon him by Dawson J. on May 29, 2009 (conviction) and August 21, 2009 (sentence).

[2] On the conviction appeal, the appellant argues that the trial judge:

(a) applied the wrong test relating to “undue suffering” in considering sections 138(2)(a) and 139(2) of the Health of Animals Regulations ; and

(b) erred further by improperly relying on the evidence of Doctor DeLay, a veterinary pathologist.

[3] As to his sentence appeal, the appellant argues that the trial judge erred in convicting him of both causing the cow undue suffering during transport and causing it undue suffering during unloading. The appellant argues that both offences must necessarily be contextually considered as arising from the same transaction and that one of the charges should have been conditionally stayed pursuant to the principle in Kienapple . Accordingly the appellant argues that one of the two fines of $2,500 should be quashed.

B. Conviction Appeal

[4] In determining whether either the appellant’s transport or his unloading of the cow caused it undue suffering, the trial judge relied on two decisions that interpreted “undue suffering” as “unjustifiable”, “unreasonable”, and “inappropriate”. Since the issuance of her reasons for convicting the appellant, the Federal Court of Appeal has clarified the Porcherie Des Cédres and Samson cases. In Doyon v. Canada (Attorney General) (2009), 2009 FCA 152 , 312 D.L.R. (4 th ) 142 (C.A.) that court held that in proving a violation a prosecutor must establish that there existed a causal link between either the transportation [in section 138(2)(a)] or the unloading [in section 139(2)] and the animal’s undue suffering.

[5] The trial judge in the case at bar clearly found specific causal links between both the transportation and the unloading of the cow and its undue suffering. She found that the animal could not have been transported without undue suffering during the expected journey and that it was transported in a way likely to cause unduly suffering during the trip. She specifically found as a fact that the cow was injured during the transportation itself, as a result of its weakened state. Similarly she also found beyond a reasonable doubt that the further unloading of the cow caused it undue suffering. Far from employing flawed logic based on assumptions, the trial judge’s specific findings of fact, unchallenged on this appeal, resulted in her trial findings that distinct and separate undue suffering was caused by the cow in both its transportation and its unloading. Those findings were to my mind, logical and supported by the evidence. The trial judge applied the correct test. This ground of appeal fails.

[6] Dr. J.P. DeLay was qualified as a trial expert in the area of veterinary pathology, able to give opinion evidence with respect to the cow’s physical condition. The doctor’s qualifications were conceded and trial defence counsel made no objecting submissions to that qualification order. The expert’s curriculum vitae was exhibited at trial. She gave opinion evidence in answer to questions asked by both Crown and defence. She was asked and gave opinion answers to the following:

(i) By the Crown:

• How long would a cow survive in this condition?

• Would this cow have suffered physically?

• Would this cow have suffered during any sort of transportation?

• Would travel have caused additional suffering? and

• Should this cow have been transported while it was alive?

(ii) By the Defence:

• Was she was aware whether animals sustain bruising during transport?

• Did she had experience with cows that had injuries as a result of transportation?

• What typically happens with these injuries? and

• Whether there could be a host of injuries that happen when a cow goes down, including a swollen leg, a broken vertebrae, bruising and things of that nature.

[7] While Dr. DeLay was qualified to testify as a 20 year practicing veterinary expert pathologist, she was not specifically qualified as a forensic veterinary pathologist. The appellant points to R. v. Abbey 2009 ONCA 624 and to conclusions in the Goudge Report from the Inquiry into Paediatric Forensic Pathology in Ontario in arguing that Dr. DeLay’s expertise was not broad enough to legally allow her to give opinions as to any potential suffering that may have occurred during the cow’s loading or transport. I disagree.

[8] The appellant loaded a cow that was visibly emaciated, injured and in distress onto his transport truck. He then drove the animal for over 20 hours to the stockyard where he unloaded it. Due to the animal’s condition it ultimately had to be euthanized.

[9] Dr. DeLay’s extensive experience, education, training and practice fully entitled her to answer the opinion questions that were asked by both Crown and defence. She was qualified at trial more narrowly than her actual expertise but, per R. v. Marquard (1993) 1993 37 (SCC) , 4 S.C.R. 223, it would clearly have been overly technical to reject her expert testimony because it went beyond the specific area of the expertise for which she had been legally qualified. Dr. DeLay clearly had the veterinary expertise to permit her to testify as she did. Her answers were given to questions well within her area of expertise in veterinary pathology. There was no error in law by the trial judge in accepting her testimony.

[10] Further, in closing trial submissions defence pointed to opinion evidence of Dr. DeLay, in part, as support for his position that the cow was healthy when it was loaded but injured during transport – all through no fault of the appellant. The appellant’s counsel at trial either accepted Dr. DeLay’s expanded qualifications in these areas or made a tactical decision to proceed on that basis. It does not now lie in his mouth to say otherwise. There was no harm to the trial process that flowed from the admission of Dr. DeLay’s evidence. No error of law is demonstrated. This ground of appeal also fails.

C. The Sentence Appeal

[11] There is neither a factual nor legal nexus between the two offences to the extent the principle in R. v. Kienapple (1975) 1 S.C.R. 279 is engaged. The charged offences of loading and transporting are separate and distinct offences and were treated as such by the trial judge. The acts of transporting and loading are themselves different and distinct. The two offences in no way arise from the same transaction. There was no requirement for the trial judge to conditionally stay one of them. This ground of appeal fails.

D. Conclusion

[12] For the reasons I have given both the appeals against conviction and sentence are dismissed.

R. MacKINNON J.

Released: March 9, 2012