Animal in Distress (Re:Taking Possession of)

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Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved: 2022-05-18
CLNP Page ID: 1250
Page Categories: [Animal Control (POA)]
Citation: Animal in Distress (Re:Taking Possession of), CLNP 1250, <https://caselaw.ninja/r/45>, retrieved on 2022-05-18
Editor: Sharvey
Last Updated: 2021/09/23


Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13[1]

15 (1) No person shall cause an animal to be in distress.

...

30 (1) An animal welfare inspector who has reasonable grounds to believe that an animal is in distress and who is able to promptly find the owner or custodian of the animal may order the owner or custodian to take such action as may, in the opinion of the inspector, be necessary to relieve the animal of its distress, which may include, without limiting the generality of the foregoing, having the animal examined and treated by a veterinarian at the expense of the owner or custodian.

(2) The order shall be in writing and shall have printed or written thereon the content of subsections 38 (1), (3) and (5).
(3) The order shall specify the time within which any action required by the order shall be performed.
(4) Every person who is served with an order under this section shall comply with it in accordance with its terms until such time as it may be modified, confirmed or revoked and shall thereafter comply with the order as modified or confirmed.
(5) If, in the opinion of an animal welfare inspector, an order made under subsection (1) has been complied with, the inspector shall revoke the order and serve notice of the revocation in writing on the owner or custodian of the animal that is the subject of the order.

31 (1) An animal welfare inspector may remove an animal from the place where it is and take possession of the animal for the purpose of providing it with necessaries to relieve its distress if,

(a) a veterinarian has advised the inspector in writing that alleviating the animal’s distress necessitates its removal;
(b) the inspector has inspected the animal and has reasonable grounds for believing that the animal is in distress and the owner or custodian of the animal is not present and cannot be found promptly; or
(c) an order respecting the animal has been made under section 30 and the order has not been complied with.
...
(6) The Chief Animal Welfare Inspector may decide to keep an animal that was removed under subsection (1) or (2) in the Chief Animal Welfare Inspector’s care if,
(a) the Chief Animal Welfare Inspector determines it is necessary to relieve the animal’s distress; or
(b) the Chief Animal Welfare Inspector has reasonable grounds to believe that,
(i) the animal may be placed in distress if returned to its owner or custodian, or
(ii) the animal may be trained to fight another animal if returned to its owner or custodian.
(7) The Chief Animal Welfare Inspector shall immediately serve written notice of his or her decision to keep an animal in the Chief Animal Welfare Inspector’s care in accordance with subsection (6) on the owner or custodian of the animal, if known.
(8) A notice to an owner or custodian of an animal required by this section shall have printed or written on it the content of subsections 38 (1), (4) and (5).
...

44 (1) An animal welfare inspector who is lawfully in any place may, without a warrant, seize any animal or thing that he or she has reasonable grounds to believe,

(a) has been obtained by the commission of an offence under this Act;
(b) has been used in the commission of an offence under this Act;
(c) will afford evidence of the commission of an offence under this Act; or
(d) is intermixed with a thing referred to in clause (a), (b) or (c).
(2) If the animal welfare inspector is in the place pursuant to a warrant, subsection (1) applies to any animal or thing, whether or not it is specified in the warrant.
(3) An animal welfare inspector shall deliver any animal or thing that he or she seizes to a person authorized by the Chief Animal Welfare Inspector for safekeeping.
...
(6) An animal welfare inspector who has seized an animal or thing under this section shall comply with the requirements of section 158.2 of the Provincial Offences Act.
(7) Any animal or thing seized and not forfeited under this section shall be returned to the person from whom it was seized if,
(a) a charge is not laid at the conclusion of the investigation; or
(b) a charge is laid but, when the charge is finally disposed of, the defendant is acquitted or the charge is dismissed or withdrawn.
(8) Despite subsection (7), if the Chief Animal Welfare Inspector has reasonable grounds to believe that the animal may be placed in distress or trained to fight another animal if returned to its owner or custodian,
(a) the Chief Animal Welfare Inspector may decide to take the animal into the Chief Animal Welfare Inspector’s care; and
(b) the notice provisions in subsections 31 (7) and (8) apply, with necessary modifications.

Provincial Offences Act, R.S.O. 1990, c. P.33

158.2 (1) Subsection (2) applies when,

(a) a person has, under a warrant issued under this or any other Act or otherwise in the performance of his or her duties under an Act, seized any thing,
(i) upon or in respect of which an offence has been or is suspected to have been committed, or
(ii) that there are reasonable grounds to believe will afford evidence as to the commission of an offence; and
(b) no procedure for dealing with the thing is otherwise provided by law. 2006, c. 19, Sched. B, s. 15 (2).
(2) The person shall, as soon as is practicable, take the following steps:
1. The person shall determine whether the continued detention of the thing is required for the purposes of an investigation or proceeding.
2. If satisfied that continued detention is not required as mentioned in paragraph 1, the person shall,
i. return the thing, on being given a receipt for it, to the person lawfully entitled to its possession, and
ii. report to a justice about the seizure and return of the thing.
3. If paragraph 2 does not apply, the person shall,
i. bring the thing before a justice, or
ii. report to a justice about the seizure and detention of the thing. 2006, c. 19, Sched. B, s. 15 (2); 2017, c. 34, Sched. 35, s. 24.

[2]

Bogaerts v. Attorney General of Ontario, 2019 ONSC 41 (CanLII)[3]

[20] The test for determining the issue of jurisdiction is not in dispute. It is a two-step process summarized in York (Regional Municipality) v. Tsui, 2017 ONCA 230 at paragraphs 58, 64, and 67[4], as follows:

(a) Pith and Substance
58. The first step is to determine the “matter” of the legislation in issue. The analysis involves an examination of: (i) the purpose of the enacting body, and (ii) the legal effect of the law: Reference re Firearms Act, 2000 SCC 31 (CanLII), [2000] 1 S.C.R. 783, at para. 16.[5] This exercise is traditionally known as determining the law’s “pith and substance”: Chatterjee, at para. 16 [Chatterjee v. Ontario (Attorney General), 2009 SCC 19 (CanLII), [2009] 1 S.C.R. 624][6]. …
(b) Assignment to a Head of Power
64. Once the pith and substance has been identified, the second step in the analysis is to assign the matter of the challenged legislation to a head of power under either ss. 91 or 92 of the Constitution Act, 1867. …
67. Where measures enacted pursuant to a provincial power overlap with a federal power, the court must identify the “dominant feature” of the measure: Chatterjee, at para. 29. If the dominant feature is the subject matter of provincial authority, “the enactment will not be invalidated because of an ‘incidental’ intrusion into the criminal law”: Chatterjee, at para. 29.

[21] The onus is on applicant in this case to establish that the impugned provisions are outside of the legislative jurisdiction of the province. The OSPCA Act is presumed to be constitutional: York at paragraph 72.

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[37] The applicant challenges the following impugned sections taken together because they allow warrantless searches and seizures in certain distinct situations.

Inspection — animals kept for animal exhibition, entertainment, boarding, hire or sale

11.4 (1) An inspector or an agent of the Society may, without a warrant, enter and inspect a building or place where animals are kept in order to determine whether the standards of care or administrative requirements prescribed for the purpose of section 11.1 are being complied with if the animals are being kept for the purpose of animal exhibition, entertainment, boarding, hire or sale. 2015, c. 10, s. 4 (1).

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[44] The applicant points out that along with regulatory search and seizure powers, the OSPCA is authorized by the OSPCA Act to “concurrently” investigate and charge individuals with animal cruelty offences under that Act and the Criminal Code. As an example, an OPSCA investigator or agent attending on a person’s farm where horses are being boarded, can enter the barn without a warrant under the OSPCA Act with respect to the OSPCA’s regulatory function. However, if the same officer attended on the same farm to investigate a complaint of animal cruelty with a view to laying a Criminal Code charge, which is clearly within his or her power, a warrant would be required.

[45] Notwithstanding that the expectation of privacy would be low when a search or seizure is done for the stated purposes of sections 11.4 and 11.4.1, the applicant argues that the sections could be abused. He therefore asserts that the expectation of privacy should always be high and in-line with the criminal law test. This would seriously curtail the OSPCA’s regulatory function. As noted in the majority decision in R. v. Colarusso, 1994 CanLII 134 (SCC), [1994] 1 S.C.R. 20[7], where a blood sample that was properly seized by a coroner without a warrant was held to be a warrantless seizure breaching section 8 of the Charter when introduced into evidence in criminal proceedings (paragraphs 89, 90, and 92), the use of information collected is restricted to the purpose for which is was obtained (paragraph 86). To paraphrase from paragraph 92 of that case, the “criminal law enforcement arm” of the state cannot rely on the seizure by the regulatory arm of the state to circumvent the constitutional guarantees against unreasonable search and seizure, as the regulatory seizure is valid for non-criminal purposes only. What muddies the waters here somewhat is that both “arms” of the state dealing with animal care, the regulatory arm and criminal arm, could be attached to the same body, namely the OSPCA. However, as noted in R. v. Cole at paragraph 69, “[w]here a lower constitutional standard is applicable in an administrative context … the police cannot invoke that standard to evade the prior judicial authorization that is normally required for searches or seizures in the context of criminal investigations.” The state can have both regulatory and criminal search and seizure powers, but cannot use the former to effect the latter purpose. If it did, that would go to the reasonableness of the search or seizure itself. In other words, where the regulatory inspection provision is improperly used to gather evidence for a criminal prosecution, the remedy is not to invalidate the inspection provision itself but to exclude the evidence from that prosecution under section 24(2) of the Charter: see R. v. Jarvis, 2002 SCC 73, at paragraph 97.[8]


[7] [3] [4] [5] [6] [8]

Ontario (Attorney General) v. Bogaerts, 2019 ONCA 876 (CanLII)[9]

[11] The Act contains several provisions authorizing search and seizure. The respondent’s challenge to the following provisions was dismissed by the application judge:

• Section 11.4 allows entry (without warrant into any place other than a dwelling, and into a dwelling with a warrant) where animals are kept for commercial purposes (exhibition, entertainment, boarding, hire or sale) to determine whether applicable standards are being met, provided that entry into a dwelling is not permitted without the consent of the occupier (s. 11.4(2));
• Section 11.4.1(1) gives inspectors and agents the power to demand production of records in relation to the same class of animals;
• Section 12(1) allows inspectors and agents with a warrant to search a building or place to determine if an animal is in distress;
• Section 12(6) allows for entry without a warrant into any building or place other than a dwelling if the inspector or agent has reasonable grounds to believe that there is an animal in immediate distress, defined as “distress that requires immediate intervention in order to alleviate suffering or to preserve life” (s. 12(8));
• Section 12.1 allows inspectors, agents and veterinarians who are lawfully in a place to take a carcass or sample of a carcass;
• Section 13(1) allows an inspector or agent who has reasonable grounds to believe that an animal is in distress to order any person present or found promptly to take action to relieve the distress or to have the animal treated or examined by a veterinarian at the owner or custodian’s expense;
• Section 13(6) allows for entry without a warrant if an order made under s. 13(1) remains in force to determine if the order has been complied with;
Section 14(1) allows an inspector or agent to remove an animal for the purpose of providing it with care upon reasonable grounds to believe that an animal is in distress and the owner or custodian cannot be found or if a s. 13 order has been made and not complied with.
...

[44] Second, these provisions deal less with gathering evidence and more with the prevention and alleviation of harm. We are dealing with exigent circumstances where the expectation of privacy yields to prevention of imminent harm: R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311[10], at para. 21. An animal in distress is unable to draw attention to its plight. More serious harm or even death may result if prompt action is not taken to relieve the animal’s distress. Entry under ss. 13(6) and 14(1)(c) is only permitted where the owner or custodian has already been ordered to act to relieve animal distress. Seizure under s. 14(1)(b) is only permitted where an animal is in distress and the owner or custodian is not present and cannot be found promptly.


[9] [10]

Ontario Society for the Prevention of Cruelty to Animals Act, RSO 1990, c O.36 (Repealed 2020-01-01)

12.1 (1) An inspector or an agent of the Society or a veterinarian, who is lawfully present in a building or place under the authority of any provision of this Act or of a warrant issued under this Act, may examine any animal there and, upon giving a receipt for it, take a sample of any substance there or take a carcass or sample from a carcass there, for the purposes set out in the provision under which the inspector’s, agent’s or veterinarian’s presence is authorized or the warrant is issued. 2008, c. 16, s. 9.

(2) An inspector, agent or veterinarian who takes a sample or carcass under subsection (1) may conduct tests and analyses of the sample or carcass for the purposes described in subsection (1) and, upon conclusion of the tests and analyses, shall dispose of the sample or carcass. 2008, c. 16, s. 9; 2009, c. 33, Sched. 9, s. 9 (4).
(3) If an inspector or an agent of the Society is lawfully present in a building or place under the authority of any provision of this Act or of a warrant issued under this Act and finds an animal in distress, he or she may, in addition to any other action he or she is authorized to take under this Act, supply the animal with food, care or treatment. 2008, c. 16, s. 9.
(4) An inspector or an agent of the Society who is lawfully present in a building or place under the authority of any provision of this Act or of a warrant issued under this Act may, upon giving a receipt for it, seize any thing that is produced to the inspector or agent or that is in plain view if the inspector or agent has reasonable grounds to believe,
(a) that the thing will afford evidence of an offence under this Act; or
(b) that the thing was used or is being used in connection with the commission of an offence under this Act and that the seizure is necessary to prevent the continuation or repetition of the offence. 2008, c. 16, s. 9.
(5) An inspector or an agent of the Society shall,
(a) report the taking of a sample or a carcass under subsection (1) to a justice of the peace or provincial judge; and
(b) bring any thing seized under subsection (4) before a justice of the peace or provincial judge or, if that is not reasonably possible, report the seizure to a justice of the peace or provincial judge. 2008, c. 16, s. 9.
(6) Where any thing is seized and brought before a justice of the peace or provincial judge under subsection (5), the justice of the peace or provincial judge shall by order,
(a) detain it or direct it to be detained in the care of a person named in the order;
(b) direct it to be returned; or
(c) direct it to be disposed of, in accordance with the terms set out in the order. 2008, c. 16, s. 9.
...

14 (1) An inspector or an agent of the Society may remove an animal from the building or place where it is and take possession thereof on behalf of the Society for the purpose of providing it with food, care or treatment to relieve its distress where,

(a) a veterinarian has examined the animal and has advised the inspector or agent in writing that the health and well-being of the animal necessitates its removal;
(b) the inspector or agent has inspected the animal and has reasonable grounds for believing that the animal is in distress and the owner or custodian of the animal is not present and cannot be found promptly; or
(c) an order respecting the animal has been made under section 13 and the order has not been complied with. R.S.O. 1990, c. O.36, s. 14 (1).

Shelley Langstaff v Chief Animal Welfare Inspector, 2020 ONACRB 6 (CanLII)[11]

POWERS OF THE BOARD

7. After a hearing, the Board may do one or more of the following:

a. Confirm, revoke or modify an order made under section 30.
b. Order that an animal removed under subsection 31 (1) or (2), or that was taken into the Chief Animal Welfare Inspector’s care under subsection 31 (6) or 44 (8), be returned to the owner or custodian.
...

ii. Was the removal of Marley from the Appellant’s care lawful?

13. Pursuant to section 31(1) of the Act, “An animal welfare inspector may remove an animal from the place where it is and take possession of the animal for the purpose of providing it with necessaries to relieve its distress if, (c) an order respecting the animal has been made under section 30 and the order has not been complied with.

14. Having found that there were reasonable grounds for issuance of the Compliance Order under section 30 of the Act, the Appellant was required to comply with its terms and conditions. One such term was to have Marley examined by a veterinarian by June 1, 2020 at 12:00pm. The Compliance Order clearly indicates that failing to comply with all the terms of the Compliance Order by the specified date may result in the removal of the animal who is the subject of the order.

...

21. The Board finds that the Inspector had reasonable grounds to believe that Marley was in distress based on her observations of Marley’s living conditions and physical condition, the Appellant’s admissions that she was not feeding him or providing him with water, and the veterinarian’s diagnoses and treatment plan, and therefore lawfully issued a Compliance Order on May 28, 2020.

22. The Board finds that the Appellant did not comply with the May 28, 2020 Compliance Order and that Marley’s removal from the Appellant’s care was necessary to relieve Marley’s distress.

23. Finally, the Board finds that Marley should not be returned to the Appellant for the following reasons:

a. There is no evidence on this appeal that the Appellant is willing and able to provide the ongoing care that Marley requires in light of his recent diagnoses; and
b. The evidence before the Board suggests that Marley would be placed in distress if he was to be returned to the Appellant.

[11]

Swanson v Chief Animal Welfare Inspector, 2020 ONACRB 11 (CanLII)[12]

ISSUES TO BE DECIDED

[4] The issues to be decided by the Board are as follows:

i) Whether the animals removed were in distress; and
ii) If so, whether the removal of the animals was necessary to relieve their distress.

RESULT

[5] For the reasons that follow, I find that the animals removed were in distress and that the removal of the two horses and two ponies was necessary to relieve their distress. I am not satisfied, however that the removal of the six chickens was necessary in the circumstances.

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[23] Inspectors Baker and Giroux testified as to their observations during the execution of the search warrant on Ms. Swanson’s property. Inspector Baker explained that upon arriving at the property, she and the others knocked several times on Ms. Swanson’s door. No one answered and so they posted the search warrant on her door and proceeded to the barn.

[24] Upon entry into the barn, Inspector Baker observed two ponies, once of which was quite thin. She also observed chickens, ducks, goats, and sheep. Both Inspectors Baker and Giroux noted that there was a significant amount of manure build-up in the goat pen and in another empty stall.

[25] Inspector Baker explained that the ponies present in the barn had significant hoof overgrowth, which both she and Dr. Robertson described as “slipper feet.” Inspector Baker noted that the condition of the ponies’ hooves was similar to the condition of Cody and Vegas’ hooves.

[26] Inspector Baker noted that some of the chickens were housed in cages that appeared dirty, with no fresh water or bedding available. One chicken housed in a separate cage appeared to have a leg injury and was unable to walk normally.

...

Issue 1: Were the animals removed from Ms. Swanson’s property in distress?

[38] Dr. Robertson testified that in his opinion, the two horses, two ponies, and six chickens removed from Ms. Swanson’s care were in distress. Specifically, he noted that the ponies and horses were in need of hoof care and that one of the ponies was emaciated and had significant dental issues that needed to be addressed. He explained that in his view, the animals’ distress was as a result of Ms. Swanson’s inability and/or failure to provide them with the adequate and ongoing care they needed.

[39] I am satisfied based on Dr. Robertson’s opinion, as well as the testimony and photographic evidence presented by Inspector Baker and Inspector Giroux, that the two ponies and two horses were in distress at the time the decision was made to remove the animals from Ms. Swanson’s care. Each of these animals required, at a minimum, urgent hoof care, which it appears they had not received for several months.

[40] With respect to the chickens removed from the property, I accept Dr. Robertson’s opinion that they also appeared to be in distress. Again, the photographic evidence presented revealed that the chickens were living in confined cages, with what appeared to be limited opportunity to move around freely. I accept that the chickens removed were in “distress” as defined in the Act, as they appeared to be in need of proper shelter and water. Further, I accept that at least with respect to the lame chicken, it was in distress as it appeared in need of veterinary care.

Issue 2: Was the removal of the animals necessary to relieve their distress?

[41] Based on the evidence of the Inspectors and Dr. Robertson, I am satisfied that the removal of the ponies and horses was necessary to relieve their distress. Ms. Swanson had been ordered to address the hooves of Cody and Vegas but had been unable to do so by the time the search warrant was executed on October 29th. While I accept that Ms. Swanson took some steps to ameliorate the horses’ condition, including attempting to address their hooves, she conceded that she had not been able to do so even after Inspector Baker gave her ample time to do so.

[42] Having failed to properly address Cody and Vegas’ needs, it was appropriate and necessary for both the horses and the two ponies to be removed from Ms. Swanson’s care so that they could receive the care they needed. As Mr. Mack described, the animals required extensive hoof trimming, which they all received from Mr. Mack, within hours of being removed from the property.

[43] With respect to the chickens, while I accept that they were in distress, I am not satisfied that removal was necessary in the circumstances. Dr. Robertson did not inquire of Ms. Swanson whether the chickens had free range of the barn; whether they were permanently housed in their cages; and whether their water was regularly changed. Ms. Swanson made clear in her evidence that she had not had a chance to complete her morning chores prior to the execution of the search warrant. She explained that she would have changed the animals’ water and bedding and would have opened the doors and windows in the barn, making it easier for the animals to roam.

[44] Dr. Robertson acknowledged that he did not recommend the removal of all of the poultry in the barn and that he identified the six chickens that were removed based on his observations of their cage conditions. In the circumstances, I am not satisfied that removal was necessary to alleviate the chickens’ distress. Ms. Swanson was ordered to take steps with respect to several animals that were not removed, including sheep, goats, horses and other poultry. She should have been given the opportunity to address the concerns identified with respect to the chickens removed in much the same way. I am not satisfied that the condition of the chickens removed was demonstrably different than the condition of the other poultry and animals left behind.

[45] Similarly, there did not appear to be a need to remove the lame chicken on the date of removal. Ms. Swanson ought to have been given an opportunity to address its condition, before it was removed.

[12]

References

  1. Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13, <https://www.ontario.ca/laws/statute/19p13>, reterived 2021-04-22
  2. Provincial Offences Act, R.S.O. 1990, c. P.33, <https://www.ontario.ca/laws/statute/90p33>, reterived 2021-04-23
  3. 3.0 3.1 Bogaerts v. Attorney General of Ontario, 2019 ONSC 41 (CanLII), <https://canlii.ca/t/hwt0d>, retrieved on 2021-09-23
  4. 4.0 4.1 York (Regional Municipality) v. Tsui, 2017 ONCA 230 (CanLII), <https://canlii.ca/t/h2pk8>, retrieved on 2021-09-23
  5. 5.0 5.1 Reference re Firearms Act (Can.), 2000 SCC 31 (CanLII), [2000] 1 SCR 783, <https://canlii.ca/t/5251>, retrieved on 2021-09-23
  6. 6.0 6.1 Chatterjee v. Ontario (Attorney General), 2009 SCC 19 (CanLII), [2009] 1 SCR 624, <https://canlii.ca/t/23447>, retrieved on 2021-09-23
  7. 7.0 7.1 R. v. Colarusso, 1994 CanLII 134 (SCC), [1994] 1 SCR 20, <https://canlii.ca/t/1frw6>, retrieved on 2021-09-23
  8. 8.0 8.1 R. v. Jarvis, 2002 SCC 73 (CanLII), [2002] 3 SCR 757, <https://canlii.ca/t/50d7>, retrieved on 2021-09-23
  9. 9.0 9.1 Ontario (Attorney General) v. Bogaerts, 2019 ONCA 876 (CanLII), <https://canlii.ca/t/j3d8n>, retrieved on 2021-09-23
  10. 10.0 10.1 R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 SCR 311, <https://canlii.ca/t/1fqpk>, retrieved on 2021-09-23
  11. 11.0 11.1 Shelley Langstaff v Chief Animal Welfare Inspector, 2020 ONACRB 6 (CanLII), <https://canlii.ca/t/j8qm2>, retrieved on 2021-04-22
  12. 12.0 12.1 Swanson v Chief Animal Welfare Inspector, 2020 ONACRB 11 (CanLII), <https://canlii.ca/t/jcbh9>, retrieved on 2021-04-22