R v Muhlbach, 2011 ABQB 9 (CanLII)

The Crown appeals the acquittal of Muhlbach, who owns and operates a cattle farming operation. The Alberta SPCA investigated concerns about cattle treatment on his farm. As a result of those investigations, he was charged with one count of permitting animals to be in distress contrary to section 2(1) of the Animal Protection Act.

The background facts are as follows: the ASPCA became concerned about the welfare of the cattle on the Muhlbach farm, and a peace officer visited the farm. The officer noted various concerns including a number of cattle and calf carcasses and a bull with an enlarged scrotum. A search warrant was obtained and executed. The following observations were made: a steer with a grossly enlarged scrotum; a cow with a limp that appeared to be missing part of its hoof wall; several younger animals with pinkeye; two automatic watering bowls with no water in the yearling and the bull pen; standing water in the bull pen that was stagnant and contained manure; external parasite burdens and a lack of hair in certain areas of the animals in the bull pen; a “downer cow” lying on the ground that appeared to be dehydrated and emaciated; and dead calves and dead cattle left uncovered on the land. Muhlbach was then charged.

In order for the Crown to be successful in convicting Muhlbach of the charge, it had to prove, beyond a reasonable doubt, the actus reus of the offence that Muhlbach caused or permitted an animal or animals to be in distress. Given that the charge is strict liability, the Crown is not required to prove the mental element of the offence, but Muhlbach is entitled to a raise a defence of due diligence.

The trial judge acquitted Muhlbach. He found that although the Crown had established the actus reus of the offence by proving that there were some sick, injured or suffering animals on the farm; he also found that the Crown had not proved the actus reus with respect to whether the animals were deprived of adequate food, water, shelter, space or veterinary care. Lastly, he found that Mulhbach had proven the defence of due diligence that the distressed animals were being cared for pursuant to reasonable and generally-accepted practices of animal care. He relied on the lack of evidence produced by the Crown showing dehydration of any of the animals, or any obvious pain or extreme discomfort.

The Crown appeals on the following grounds: 1) the trial judge erred by misdefining the offence and reading in an element of the offence that the Crown was not required to prove; 2) by misdefining and misapplying the statutory defence; 3) by misapprehending the evidence; and 4) by rendering an unreasonable verdict.

With regard to the first ground of appeal, the Crown argues that the trial judge misinterpreted the Act by requiring evidence of dehydration, rather than evidence of distress. The court finds that there was no clear evidence that the cattle on the farm were in distress due to lack of water, and, thus, the trial judge was entitled to infer that the cattle were not in distress due to deprivation of water by finding that no evidence was given showing dehydration. Thus, the court finds that there was no palpable or overriding error in the trial judge’s reasoning on this ground of appeal.

With regard to the second ground of appeal, the Appellant submits that once distress is established, there is no requirement on a plain reading of the Act that the animals be found in “pain or obvious discomfort.” The Respondent submits that the trial judge was entitled to find on the evidence that Muhlbach had acted within the generally accepted parameters of husbandry practice. The court finds that the trial judge’s articulation and application of the test disclosed no palpable or overriding error.

With regard to the third ground, the trial judge found that the Crown had failed to prove that the animals had been deprived of “adequate food, water, shelter, space or vet care”. The court finds that it is a reasonable inference for a trial judge to answer the question “were the cattle deprived of water?” by seeking out evidence that the cattle were dehydrated. This was not a palpable and overriding error. The Crown argues that there was sufficient evidence led that these animals could be (not that they were) in pain and/or suffering such that the trial judge could not possibly have come to the conclusion that the defence was operative. The court finds that the trial judge used the proper test for due diligence: if an animal is in distress, did Muhlbach’s actions in responding to that distress conform with reasonable and generally-accepted practices in the industry? The court finds no palpable or overriding error.

As to the fourth ground, the court finds that the trial judge could have reasonably reached the conclusion that Muhlbach should be acquitted based on the evidence before him.

In conclusion, the court states that although the Crown did prove that the waterers were not operational on the day of investigation, the trial judge found that the evidence of Muhlbach that they were only non-operational that one day and the lack of any evidence of dehydration to find that the Crown had not proven that element beyond a reasonable doubt. This is a reasonable conclusion. With regard to the sick, injured or suffering animals, the trial judge found that the Crown had proven beyond a reasonable doubt that these animals were in distress, but then turned to the defence found in section 2(2) of the Animal Protection Act. After considering the evidence, the trial judge concluded that Muhlbach was attempting to treat the pinkeye, was monitoring the cow with the broken hoof wall, and was considering killing the bull with the enlarged scrotum. With regard to the “downer” cow, the trial judge found that Muhlbach was feeding and watering her and that he intended to euthanise her if she did not improve. He therefore concluded that Muhlbach had proven on a balance of probabilities that the distress had resulted from generally-accepted husbandry practices. This was found to be a reasonable conclusion for him to make. The court finds that the trial judge was alive to the requirements and standards of proof under the Animal Protection Act, that he considered the evidence carefully, and that he applied the evidence to the test in a reasoned way. Therefore, it cannot be said that the acquittal verdict was unreasonable.

The appeal is dismissed.

Source: Case Law

Jurisdiction: Alberta

Topics: acquittalagricultureAnimal Protection ActappealbullBurden of Proofcarcassescattlecowsdeaddefencedehydrationdeprivationdismisseddistressdowner cowdue diligenceenlarged scrotumevidencefarmfarming operationgenerally-accepted husbandry practiceslivestockpain or obvious discomfortpermitting animals to be in distresssearch warrantSPCAstrict liabilitywater

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