The applicant (Friesen) brings a motion seeking a declaration that the SSPCA unlawfully entered his property and illegally seized his two dogs in contravention of the Charter and in excess of the authority granted to the SSPCA under The Animal Protection Act. He also seeks an order requiring the SSPCA to disclose forms related to the inspection and seizure; an order requiring the SSPCA to disclose any veterinarian reports; and an order that the SSPCA return and release the two dogs or, alternatively, an order for a restrictive injunction that the SSPCA may not dispose of the dogs in any manner, including by selling or destroying them. Lastly, the applicant seeks costs of the application and any such further and other relief as counsel may advise. In conjunction with the notice of motion, the applicant brought an ex parte application requesting leave that the time for hearing the motion be abridged. An interim order was made restraining the respondent from disposing of the two dogs.
The facts of the event are as follows: Friesen owns two dogs, a Great Pyrenees and an Alaskan Husky. The dogs are kept in the backyard of this acreage. An SSPCA animal protection officer arrived at Friesen’s acreage to respond to a complaint that had been received from the acting animal control bylaw officer for the village that there were two dogs at that location that were not receiving proper care. At the property, the officer observed from the driveway a dog jumping up and down at the end of its chain attached to an old car garage – this was the only shelter he was able to observe. Given that there was no clear path to the front door, the officer went around to the backdoor. When he turned the corner of the house, he observed another large dog standing at the end of its chain attached to an uninsulated doghouse. He observed a container of water by each dog with the contents frozen solid. There were food dishes for both dogs – these were empty. It was his opinion that both dogs looked very thin. He knocked on the door; however, there was no response and at that time he formed the opinion that a search warrant was needed to relieve the animals of their distress. He composed and left an inspection notice attached to the front door – it indicated that a reinspection would occur the next day and that fresh water and food must be provided to the dogs. The officer also completed an information to obtain a search warrant, which was sworn the next day (the day of the reinspection). When the officer returned the following day, he formed the opinion that the situation had not changed. The animals continued to be in distress and he observed that the inspection notice was still attached to the door – this was approximately 25 hours after it had been posted. He knocked on the door – there was no response and the two dogs were seized. The two parties have been unable to reach a satisfactory repayment arrangement for the costs of care provided to the dogs by the SSPCA.
The grounds for the application are that: the SSPCA illegally and without lawful authority entered upon Friesen’s private property for the purpose of conducting an inspection of the property and dogs; the SSPCA agents returned to the property the following day with a search warrant; the two dogs were seized on that day; upon requesting to see the search warrant, the SSPCA refused to release it, however they did release it the next day; the applicant was not provided with any vet reports or other forms relied upon; the SSPCA has since held the two dogs in their custody and has refused to release them to the applicant unless he pays $937 with costs increasing per day; the SSPCA refused to enter into a payment arrangement with Friesen; the SSPCA notified Friesen that if the amounts claimed to be due were not received by a certain date, that they would dispose of the animals; and that the applicant fears that his dogs will be sold or destroyed and seeks a quick resolution of the matter.
The issues are as follows: 1) was the warrant lawfully obtained; 2) were the observations made by the officer during his initial visit obtained in a manner that violated the Charter rights of the applicant; 3) if yes, was the evidence obtained admissible; and 4) does the applicant owe the SPCA moneys for expenses incurred for caring for his dogs.
The court finds that:
1) The warrant issued was lawfully obtained.
2) The observations and activities of the officer did not occur in a setting where it could be said that he violated section 8 of the Charter. The officer is required by the legislation to undertake an investigation in certain circumstances. The actions taken on the applicant’s property were minimal and restricted to those he had authority to do. The dogs and their circumstances were both in “plain view” at the initial visit; the officer did not attempt to approach the animals nor undertake any other activities that could said to have exceeded the limited authority which he had at that point; and he was not purposely entering onto the property for the purposes of obtaining evidence to obtain a subsequent search warrant.
3) It is not necessary to address the question of whether the evidence is admissible.
4) The respondent has and had an obligation to provide the applicant with a breakdown as to how the purported amount owing is made up. The SSPCA is entitled to claim the “reasonable expenses incurred” in taking the dogs into their care and providing them with veterinary and other necessary care. If the services were provided by outside agencies, the SSPCA is entitled to reimbursement from the applicant; however, if the services were provided in house, then the SSPCA ought not to receive payment from the applicant. It is not appropriate to charge the applicant for daily care fees for the time period where the dogs were in care due to the unavailability of counsel; however, he is responsible for the daily sustenance, care and cost for each of the dogs during the rest of the time the dogs were in the SSPCA’s care. The particulars of the amount owing must be provided within three days to counsel for the applicant.
The court makes no order as to costs.
Source: Case Law
Topics: acreageanimal protection officerauthoritybackyardcareCharterCharter of Rights and Freedomscomplaintcostsdeclarationdogsevidencefoodinspectioninspection noticeinterim ordermotionrestrictive injunctionsearch warrantsection 8seizureshelterSPCAThe Animal Protection Actwater