R v Lavoie, 2014 NBPC 43 (CanLII)

The defendant is facing two counts under the Society for the Prevention of Cruelty to Animals Act (“SPCA Act”) for: 1) failing to provide 133 dogs of which he had the care and control with adequate food, water, shelter and care as prescribed in section 4(1) of the Regulations 2000-4 enacted under the SPCA Act; and 2) operating a kennel without a valid licence contrary to section 4(c) of Regulation 2010-74 created under the SPCA Act, and contrary to section 23(1) of the SPCA Act.

The defendant seeks exclusion of evidence based on a violation of his language rights under the Charter.

The facts are as follows: two unilingual English-speaking officers of the SPCA went to the defendant’s kennel to investigate a complaint regarding the dogs’ poor accommodations. One officer noticed the licence to operate had expired at the beginning of that month. The officer asked the defendant the language in which he wished to be served and the defendant said French. The officer then contacted a bilingual RCMP officer to assist him. Meanwhile, the SPCA officers inspected the kennel. The officer observed some dogs kept in indoor enclosures without beds; others had severely matted fur. Pregnant dogs were kept in an enclosure with a light hanging too close to the floor. There was a strong smell of urine and the officer was concerned about the lack of ventilation. Outside, the officer observed 13 dogs, most with matted fur; he also noted dilapidated doghouses that only offered incomplete protection from the elements. The officer believed one dog may have an ear infection so asked the defendant how long the dog had been like this – the defendant said, in rudimentary English, “about two years”. The bilingual RCMP officer then arrived on the scene to act as interpreter. A more thorough inspection resumed. The defendant was then served with a Notice of Seizure for four dogs, drawn up in both English and French and explained to the defendant in French. The four dogs were seized. The officers returned two days later and presented the defendant with a warrant, which was drawn up only in English. However, another bilingual RCMP member explained its contents to the defendant. The dogs’ accommodations having hardly changed, the officer gave the order to seize the other 129 dogs. The Notice of Seizure was explained to the defendant in French and drawn up in both English and French. A video and photos depicting the accommodations at the kennel were also recorded on that day. The photos depict the indoor enclosure with partially bent aluminum walls; a light hanging at a height that the dog could easily reach; no leak-proof material covering the concrete floors; food served in old tomato juice cans attached to the walls with a piece of wire- which are too high for small dogs to easily access them, are rusty and cannot be sterilized; food is not stored in a vermin-proof container with a lid; and a dog can be seen putting its head through a hole in a metal wire fence. Outdoors, the doghouses are ramshackle; one dog can be seen near a rusty nail sticking out of the doghouse; the wood is rotten; there are holes in the walls; and mould in places.

Upon examination of the dogs by a veterinarian, various issues were found: severely matted fur; moderate, sometimes long-standing ear infections; eye infections; dental diseases; and a skin infection. The veterinarian did not detect any problems with the weights of the dogs.

The judge finds that the defedant’s language rights were infringed on October 25, for the 30-45 minutes before the bilingual RCMP officer arrived. Therefore, the issues are as follows:

1) Is the exclusion of evidence necessarily the appropriate remedy for the infringement of the defendant’s language rights on October 25, 2011?

a) The “non-bodily physical” evidence:

No. The judge determines that this evidence is admissible. He indicates that the exercise of balancing the factors analyzed in light of the circumstances does not militate for exclusion. The admission of this evidence would not, in his opinion, bring the administration of justice into disrepute. Although the infringing conduct of the SPCA officers is serious, the Court has not detected any bad faith in their behaviour and the infringement had virtually no impact on the defendant’s rights, since a thorough inspection of the kennel resumed once the French-speaking constable arrived. The breach of the defendant’s privacy was less serious because the evidence was obtained at a place of business. Society’s interest in the case being adjudicated on its merits militates for inclusion of the evidence given its reliability, its importance to the prosecution and the seriousness of the offences charged. The search for truth would also be better served by including the evidence than by excluding it.

b) The “statement by the accused”:

Yes. The judge indicates that while it is true that the nature and circumstances of the offence tend to suggest that the case should be adjudicated on its merits, the exclusion of the statement by the accused would in no way be fatal to the prosecution considering all of the circumstances. Thus, on balance, the factors analyzed in light of the circumstances clearly militate in favour of excluding the statement by the accused, failing which its inclusion could bring the administration of justice into disrepute. The statement by the accused is excluded from the evidence.

2) On October 27, 2011, was it incumbent upon the SPCA officers to present the defendant with an entry warrant written in French?

Yes, but the judge determines that, upon balancing the factors for excluding evidence, wanting in the long term to maintain the integrity of public confidence in the judicial system, he is led to conclude that admitting the evidence would not bring the administration of justice into disrepute. Conversely, its exclusion would, in his opinion, tend to bring the administration of justice into disrepute. Therefore, he finds that the evidence obtained on October 27, 2011, and all testimony stemming from it, is admissible.

3) Did the defendant provide the dogs in his possession and control with adequate food, water, shelter and care pursuant to s. 4(1) of Regulation 2000-4?

No. All things considered, although the accused’s statement was excluded, the judge find that the prosecution has proved the actus reus of both offences, subject to the following comments: On the other hand, the defendant has not proved, on a balance of probabilities, that he behaved reasonably in order to prevent the offences charged. Therefore, the prosecution has proved beyond a reasonable doubt that the defendant failed to provide adequate care pursuant to section 4(1) of Regulation 2000-4 to the 33 dogs that were examined of which he had the care and control, but not to the other 133, as evidence was not available for all, given that they were not all examined.

4) Did the defendant operate a kennel without a valid licence contrary to s. 4(c) of Regulation 2010-74?

Yes.

The motion is dismissed. Accordingly, the evidence adduced by the prosecution is admitted at the voir dire, except the statement of the accused. However, the infringement of the defendant’s language rights should be considered at the sentencing hearing as a mitigating circumstance justifying a reduced sentence. The judge finds the defendant guilty of both offences charged. However, the offences were only proved with regards to 33 dogs, and nothing in the evidence leads the judge to find that the defendant failed to provide the dogs with an adequate source of food and water. Rather, the defendant was not complying with the food-related provisions of A Code of Practice for Canadian Kennel Operations and, more specifically, those relating to the storage containers and bowls he ought to have used to serve food to all of the dogs. In so doing, he breached the Regulation 200-4 and the SPCA Act. However, failure to provide shelter was proven for all 133 dogs.

Source: Case Law

Jurisdiction: New Brunswick

Topics: A Code of Practice for Canadian Kennel Operationsadequate food and wateradequate shelteradmissibility of evidencebusinessCharterCharter applicationCharter violationdogsevidenceFrenchguiltyinfectionskennellanguage rightslicencematted furmitigating circumstancesRegulations 2000-4Society for the Prevention of Animals ActSPCAveterinarianweight

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