Hansard

Official Report of
DEBATES OF THE LEGISLATIVE ASSEMBLY
(HANSARD)
Wednesday, April 13, 1994

PREVENTION OF CRUELTY TO ANIMALS AMENDMENT ACT, 1994

Hon. D. Zirnhelt:

The offence provision will require the SPCA to give an animal owner the chance to take action immediately to help the animal. However, if the owner ignores the warning, the society will have the authority to take action to help the animal and to recommend to the Crown Counsel that charges be laid.

In proposing the amendments to the act to increase the powers of the SPCA, I have also been aware of the fact that the SPCA needs to recognize all the interests of the public when using its power under the act. The SPCA has always done that, and I am confident that the society will continue to do so. But we still have a responsibility to ensure that the significant powers given to the SPCA are used reasonably. To help ensure that, the amendments will require the SPCA to put in place comprehensive policies and procedures to guide its agents on the use of the act's enforcement powers, and they will make those policies subject to government review[1]. SPCA agents will also have to be appointed as special provincial constables under the Police Act in order to be able to exercise the act's enforcement powers. This will ensure that SPCA agents have proper training, and it will also give the public the right to have and agent's actions reviewed by an independent review body when they're unhappy with the actions of an agent. [2]

The amendments will also expressly state that the offence provision does not apply to activities carried out according to reasonable and generally accepted management practices. They will emphasize that the act must be administered in a way which ensures that animals are treated humanely, while still allowing uses of animals to continue. [3]

R.Chisholm:

There are a few items that need clarifications by the minister, such as the definition of cruelty. [4] What does cruelty mean to you and to me? We want to hear what the minister thinks about that, considering it is not defined in the bill. It could be and area of contention. Another area we want clarification on is: What is critical distress, and how do you judge it? Veterinarians are having problems with these terminologies. We'd like to hear the minister's point of view on this so we'll have it on the record, and people will know where they stand. [5]Another area is the powers of the authorized agent, or special constable. What training is the SPCA going to have to make sure that it's standardized? What standards do the special constables adhere to when they go out on a task? [6]We would like to hear just what the standards will be. It's not talked about in the bill right now.

C. Serwa:

I don't know how the minister proposes that regulations will be drawn up through this legislation that will indicate clearly what is on one side of the line and what is on the other side.

B.Copping:

I stress that the last thing the SPCA wants to do is separate owners from their animals. They want to be able to point out to owners: "This is what you're doing wrong; you can do it better. We will help educate you." If must comes to must, then you lay charges; but that is certainly not the first thing any SPCA people I know would ever do.[7]

H. De Jong:

I'm pleased to rise and speak on Bill 4. I suppose Bill 4 raises two important philosophical questions: the first is our relationship with nature and, more particularly, with animals; the second is our approach to providing service and whether or not a province wide monopoly[8] is the appropriate way of dealing with the variety of situations which exist across British Columbia.

The second issue relates to how Bill 4 goes about dealing with the need to strengthen the protection of domestic animals. The government appears to assume that one size fits all. With this approach, there would be plenty of sore customers if they were running a shoe store. The SPCA is a fine organization, with an excellent reputation, but they are not the only agency capable of dealing with animals. I object to granting any organization a legislative monopoly [9]unless there are truly compelling reasons to do so. It is not good for the taxpayers to have no choice, and it is not good for even the best-intentioned organizations to have no competition or possibility of competition in the future.[10]

It's a very strange kind of privatization: giving police powers to a private organization. If the subjects were people rather that animals, it would be like turning the justice system over to the B.C. Civil Liberties Association. To have a say in the policies adopted, you would have to buy a membership.

But in Bill 4, police powers are extended province wide to a single private society - albeit a well-respected and sincerely dedicated organization.

The question is though: what other society has similar jurisdiction extended beyond the confines of its voluntary membership to the general public? I believe that police powers ought to be exercised by the police. [11]

I would like to ask the minister to be clear about who is going to pay for the agents established under part 3 of this bill. Is this another downloading of costs on local government, which the Minister of Government Services used to complain about so bitterly when he was in opposition? How much are we talking about? Many charities have had unfavorable publicity in recent years about empire-building and excessive administrative overhead. What is riper for empire building than a legislated monopoly? Is the reason for the monopoly in this bill administrative convenience?[12]

The bill polices farmers in determining when an animal is in critical distress. Does the minister have any estimate of the cost of this policing? The trouble with setting up schemes you can't afford to police adequately is that you open the door to discretionary enforcement. There will always be the potential for favoritism and similar sorts of abuse. If a farmer was a strong critic of the government, would the government inspectors look at his animals more critically that those of his neighbors, or would you have a new make-work project, looking for problems that aren't really there? [13]

I'm not clear what "any premises" means in this act. For example, does it include barns or barnyards? The power to enter private property without a warrant is a serious matter. Giving this power to private society is quite alien to our legal system. [14]Under Bill 4, apparently only the farmer's dwelling is exempted from this type of invasion of privacy. I'm not sure that the government has considered the serious ramifications in the case of mistaken entry or damage done as a result, since the existing legislation exempts from liability those who enforce it. Under Bill 4, as in so much NDP legislation, the public must rely on cabinet regulations to be adequately safeguarded against overzealous enforcement.[15]

To conclude, the intent of the bill may have some good in it, and there is a definite need to address. But I fear the minister has been offered a quick fix, a superficially appealing solution which contains many hidden pitfalls and unforeseen consequences.

Not the least of these is the dangerous precedent in endowing any private organization, no matter how benevolent, with police powers bolstered by statutory immunity from damage claims.[16] At committee stage, I would urge the minister to substantially modify this bill.

From the Watchdog Messageboard:

Valerius Geist, PhD., P. Biol. Letter to the Attorney General: I have grave concerns pertaining to the administration of justice

Posted By: Valerius Geist
Date: Saturday, 2 April 2005, at 10:31 a.m.

In Response To: AAS trusted and defended Craig Daniell until the Graham seizure *LINK* *PIC* (AAS)

To the Honourable Geoff Plant, Attorney General
PO Box 9044, Stn PROV GOVT
VICTORIA, BC,
V8W 9E2, Canada

Date: 31st January 2005

Dear Minister,

Re: The necessity of amending Section 1(2) and 11(a) of the Prevention of Cruelty to Animals Act in order to clarify the intent of the legislation.

I am writing you as I have grave concerns pertaining to the administration of justice using the Prevention of Cruelty to Animals Act. I am asking that your office look into this matter with a view of amending said legislation so as to prevent the kind of happenings I am drawing your attention to below and which brings the administration of justice into disrepute. This pertains to an action under Sections 1 (2) and 11 (a) of said Act by the BRITISH COLUMBIA SOCIETY FOR THE PRESERVATION OF CRUELTY TO ANIMALS, hereafter called BCSPCA. As the courts now interpret said legislation it defeats due process and gives to the policing agents arbitrary powers against which defendants of little means in a small town are essentially helpless. To put it plainly, the court, unwittingly, has legitimized what is in essence small-town terror, in which officials can exercise questionable judgment to the detriment of citizen against which they have no recourse. As in the case in question it leads to more than wrongful conviction and grave injustice. It also imposes great public costs, without fulfilling the goal of the legislation. None of this can be in the public interest. It also raises the question to what extent legal zeal shall be allowed to override basic morality and elementary decency.

The tragedy I am referring to can be followed up in detail in the records of the SUPREME COURT of BRITISH COLUMBIA, between: BRITISH COLUMBIA SOCIETY FOR THE PRESERVATION OF CRUELTY TO ANIMALS and: HEATHER GRAHAM AND RONALD GRAHAM, No. L 032120, Vancouver Registry, as well as in the records and transcripts of Regina v. Ronald and Heather Graham, Crown File No. 26668 in Port Alberni. There is additional material available in support of the Grahams.

The Grahams are an elderly couple of retirement age, living in great rural poverty and most limited income in Port Alberni. Their passion was dogs shows, in which Mrs. Graham won some 522 awards registered with the Canadian Kennel Club. Their operation had been inspected by the BCSPCA on numerous occasions without any request for change. However, relationships did sour, no small matter, Mr. Minister, in a small town! Mrs. Graham, aware of the couples' age and infirmities, was winding down operations, when on April 15th 2003, they were suddenly raided by the SPCA and charged under federal as well as provincial legislation in criminal and provincial courts. The raid was televised and reported on in print with the Grahams accused of running a puppy mill (a charge denied by the judge presiding over Regina v. Ronald and Heather Graham), while the Grahams were pilloried publicly and repeatedly juxtaposed on TV to filthy dogs that did not belong to them. The RCMP was part of this unseemly spectacle, although it was also the RCMP that deserves some praise, as it was Constable Shaun Clark who saw to it that Mrs. Graham was properly hospitalized when she broke down over the public abuse she had suffered as well as the loss of her dogs to which she and Mr. Graham were closely attached. The Grahams cashed in their small RRSP to defend themselves, which, for that year, raised their income above the limit to receive legal aid. The Grahams went into debt with a 'loan to payday' lender, as they could raise no loan with regular banks. This money also ran out and they were faced with two said court cases without legal representation. As a neighbor I was asked to help out, but which disqualified me by the rules of the court to be material witness for the defense. My professional and academic expertise does cover the matter of health and animal behavior and well-being, in addition to which I have kept and trained dogs for two decades and had then known the Grahams as neighbors for some eight years. The Grahams were thus deprived in court of both legal and material expertise. In reviewing the Crown's material against the Grahams I was not merely appalled at the lack of professionalism as evidenced by a plethora of errors, but by the fabrication of evidence. I damaged the Grahams' case by pointing out to the Crown that their's was based on a remarkable spectrum of questionable witnesses, questioning whether it was in the interest of justice to proceed with such flawed evidence. I was assured that my findings - dismissed as mere theory - could be tested in court. However, they were not! Crown counsel ably avoided the incriminating evidence, thereby protecting his witnesses against perjury. Clearly, by this very action, he agreed with my findings that his witnesses had presented to the Crown questionable statements in order to incriminate the Grahams. We were promised a fair trial, but such was not the case, as not even the veracity of witnesses could be tested, in large part due to my ignorance of court procedures and the refusal of Crown counsel to allow me to introduce corrective measures. As a senior scientist I had never cross-examined a witness in my life let alone acted as an advocate in court (though I have acted as an expert witness in cases here and in the United States). When I pointed out to the judge important background matters, Crown counsel reminded the judge that my evidence must not be taken into account under any circumstances, an indication that judgment could not be equitable if what I spoke to was damaging to the Crown's case. The SPCA's own veterinarians reported that the Grahams' dogs were healthy, as also attested to by the Grahams' veterinarian. Technically, if the animals are healthy then the environment they live in is also healthful, no matter how unusual or even obnoxious it may appear to us. And on this matter, Mr. Minister, based on decades of academic and professional work, I am the judge. And the Grahams did keep their dogs, in large part due to rural poverty, in admittedly quite unusual circumstances. The attempt to criminalize the Grahams under the federal Criminal Code failed, but they were convicted under provincial legislation, fined, deprived of their animals and are exposed now to court-sanctioned loss of elementary privacy. I had warned in writing Crown counsel that he was heading for wrongful conviction which, in my judgment, was achieved. A private person, distressed over the perceived injustice, financed legal counsel to examine possible appeals and handle the case in Supreme Court. An appeal on procedure was not possible; an appeal on substance was not allowed. It is important to note that all the false witness we pointed out is part of the sworn affidavits submitted to the Supreme Court by the BCSPCA, and exposed as such in the counter affidavit submitted by the Grahams to Supreme Court plus exhibits. Such material was, to our knowledge, not examined by a judge of the Supreme Court as the Grahams were counseled to settle out of court. There are also the transcripts of Regina v. Ronald and Heather Graham. There is, therefore, extensive documentation in your hands. Mr. Minister, may I suggest that we are dealing here not merely with a miscarriage of justice, but with a scandal.

All this could have been avoided had the BCSPCA acted as upon plain reading of the legislation and as interpreted by independent counsel and by lower courts, due process demands under Sections 1(2) and 11(a) of the Act, namely, that the investigating officer supply the Grahams with a notice detailing what was wrong with their setup and demand due attention to matters raised in a reasonable time. Such never happened. The Grahams had been assured by too many previous SPCA inspections, and no reasonable person could have foreseen that the SPCA found criminally objectionable what it had approved for 13 years.

Mr. Minister, the Act needs clarifying via amendments, because as it now stands it allows capriciousness, questionable judgment to supercede elementary justice, let alone common decency. And such is offended by attempting to criminalize unfairly, essentially helpless citizen over an utterly pathetic triviality. And please consider the cost of it all to the public, not only the court costs, but the long term costs to the public of depriving impoverished elderly people of their means of existence and their chief enjoyment and social standing in the twilight of their life.

Sincerely,
Valerius Geist, PhD., P. Biol.
Professor Emeritus of Environmental Science
Appended electronically: Grahams' Supreme Court Affidavit

Re: Section 11 (a)
cc. Gillian Trumper, MLA
Ken McRae, Mayor of Port Alberni
Judy Stone, President, Animal Advocates Society of BC

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