[1] Mr .Van Dongen, an 82 year old farmer, is charged with an
offence under s.24(1) of the Prevention of Cruelty to Animals Act,
of permitting the horses and cattle on his Abbotsford farm to be
in distress. The prosecution does not allege that the defendant
actually caused any demonstrable harm to them but rather that he
failed to provide adequate shelter for his horses and that he
neglected both the horses and cattle. The Crown alleges that the
neglect consisted of allowing conditions on the farm to
deteriorate such that the animals were exposed to an unacceptably
high risk of suffering harm.
[2] The defendant’s position is that he did not neglect any of
his animals. He submits that the Crown has not proven that he
failed to provide shelter for the horses. He further argues that
the accusation of exposing his animals to a risk of harm is based
on unrealistic and impractical standards of animal husbandry. In
fact, he argues, the Crown has not proven that any real or
significant risk of harm to his animals existed.
SUMMARY OF EVIDENCE
[3] On several occasions between February 22, 2003 and April 5,
2003 a special constable with the B.C. Society for The Prevention
of Cruelty to Animals visited Mr. Van Dongen. She expressed her
concern that there appeared to be no shelter available for the
horses in the pastures where they were kept and that old machinery
and assorted debris on the farm was a potential source of injury
to them. Mr. Van Dongen’s reply was that the local climate was
temperate and that he did not believe that the horses needed
shelter.
[4] After her last visit on April 5th the special
constable obtained a search warrant under s.13 of The Prevention
of Cruelty to Animals Act authorizing her to enter the Van Dongen
property on the basis that the apparent lack of shelter and the
presence of dangerous debris put the horses in a state of
"distress" as defined in s. 2 of the Act,
[5] The warrant was executed on April 9, 2003. The special
constable was accompanied by two of her colleagues and by Dr. Mark
Steinebach, a veterinarian. The SPCA officers spent several hours
on the farm eventually removing the 21 horses and 51 cattle found
there. (They were subsequently returned to the defendant at
various times between April14 and 17, 2003). Dr. Steinebach was
there for about 2 hours and made many observations about the
conditions on the farm, which he in turn incorporated into a
report which was filed in evidence at the trial.
[6] This report, supplemented by his testimony, formed the
backbone of the Crown’s case. He noted that there were three barns
on the farm, housing mainly cows, as well as three pastures and 2
broccoli fields. Most of the horses were in the pastures, while
most of the cattle were in or around a large barn labelled "Barn
1" by Dr. Steinebach. Within that barn were 2 enclosed areas, one
containing a sick calf; the other containing 2 cows, 1 pony, 2
foals and 3 calves.
[7] There was a concrete pad outside this barn and which
separated it from "Barn 2" (as labelled by Dr. Steinebach).There
were no cattle in it at the time he was there, although it was
clear that they had access to it. There was a foal and mare in a
separate enclosure in that barn.
[8] "Barn 3" was located about 50 feet from the other two and
which contained horse stalls with a paddock at the back in which
there were 2 horses. Just outside "Barn 2" there were 4 weanling
horses.
[9] The veterinarian’s evidence about neglect to the cattle
centred on the conditions found in "Barn 1" and adjacent area. He
described it as a "loafing barn", which is a barn in which cattle
are able to lie down after feeding. Dr. Steinebach said that cows
normally need to lie down about 50% of the time for proper
digestion to occur. He described the barn floor as being "heavily
soiled with manure". He noted a particularly heavy build up at the
alleyway of the barn which meant that the cows had to stand in
deep manure when standing at the feeding area, which ran through
the centre of the barn. There were some cows lying down in the
manure and it was obvious that any cow who did need to lie down
would have to lie in manure.
[10] There were also cows outside the barn on the concrete pad
where a water trough was located. (There was no water in it, but
it was quite likely that the automatic "waterer" for the trough
had just recently malfunctioned. That is, its condition was not
indicative of any failure by the defendant to provide water for
the cows.). Dr. Steinebach also described this pad as being
"heavily soiled with manure". Nearby was a large pile of manure in
what he termed a "manure pit".
[11] Dr. Steinebach testified that the amount of manure on the
floor of the loafing area meant that many cows would be reluctant
to lie down because they are basically clean animals who prefer a
clean, dry area for this activity. Since lying down is so
important to their food digestion, inability to do so could
eventually lead to digestive problems and the cows will not be as
productive as they could be. If, on the other hand, the cows did
choose to lie down despite the manure, it could lead to their
ingesting contaminate material with faecal organisms in it. This
could occur, for example, when the cows groomed themselves. In
turn, the disease could then spread to other cows.
[12] He testified that by lying or standing in manure, the cows
could also develop foot rot or foot infections and skin disease.
[13] His opinion was also that the level of manure, especially
at the concrete pad but also in the barn, created a risk that the
cows could slip and be injured in a fall. He also expressed a
concern that a cow or calf could fall into and possibly drown in a
pool of liquid at the end of the manure pit created by effluent
run-off.
[14] There was undoubtedly a very large amount of used farm
equipment and assorted debris in the fields. Dr. Steinebach was
concerned that the horses had free access to this material
because, being curious animals, it was very likely that some of
them would try to investigate these piles of equipment and end up
harming themselves.
[15] Dr. Steinebach also noted the apparent lack of any shelter
for the horses who were in the pastures. He said that horses do
need shelter from adverse weather conditions or at least to have
the choice to take shelter in bad weather. In the Fraser Valley
the main weather issue would be rain, with unusually cold
temperatures and wind a possible problem at times. He said that if
horses are constantly wet from continual exposure to rain, their
skin could break down and this could make them more susceptible to
disease. As well, horses need to regulate their temperature and
shelter assists them to do so when there are adverse weather
conditions. It was his opinion that the deciduous trees which grew
along the border of the pastures provided little windbreak but
could provide some shade from the summer sun.
[16] He also expressed concern that some horses appeared to
have access to a pool of water which seemed to be a run-off from
the manure pit. The danger was that they might drink it and become
sick.
[17] Dr. Steinebach expressed less concern about the conditions
in the other barns. Barn 2 had a "deep litter" system (this
involves putting sawdust or "hog fuel" on the floor to create a
barrier to the manure beneath). Most of the floor was relatively
dry. (It appears that "Barn 1" was an example of a "deep litter"
system which was not very dry.). "Barn 3" had a poorly
maintained deep litter system as well, but there were few animals
in it when the conditions were observed. Dr. Steinebach did
express a concern that the horses in Barn 3 had their movements
restricted because of the muddy conditions. He also was concerned
that the weanlings outside that barn seemed to be effectively
blocked by the barn walls on one hand, and the pool of water on
the other, from accessing the pastures and water troughs.
[18] The defendant called three witnesses: Jack Van Dongen, one
of his six sons; Doug Anderson, a local farmer with extensive
experience in the cattle industry and Sheila Rushton, who is
involved with cattle auctions in the Fraser Valley and has known
the defendant for over 30 years through his involvement in such
auctions.
[19] All of the witnesses confirmed that the defendant has, for
many years, operated a business where he buys cattle at the local
auction which have been removed or "culled" from a dairy herd and
put up for sale. These cattle are unwanted by their owners because
they may be lame, unproductive or difficult to make pregnant. He
then tries to rehabilitate them by, for example, "reversing" their
lameness which according to Jack Van Dongen, his father sometimes
accomplished by having the cattle walk in the pastures as an
antidote to having been on concrete all the time at a dairy
operation. He could often succeed in impregnating cows, when
others had failed, by keeping a bull in the herd to assist in
identifying, at the earliest possible time, when cows were in
heat. He would try to treat a cow with mastitis by having the cow
nurse a calf over a period of time. It is obvious that part of
this "restorative program" also involves providing them with
proper nourishment. He then puts the cattle back up for auction
and sells them (he hopes) at a profit. I infer that he has been
doing this successfully for well over 30 years.
[20] Jack Van Dongen has had extensive experience in farming
and particularly with cattle. His present occupation –marketing
artificial insemination services for cattle- takes him to hundreds
of farms in B.C. and Alberta. He has a very detailed knowledge of
his father’s farming practices and about this particular farm
property. (He lived there years ago and he stays at his father’s
house four days every month during his sales trips to B.C.) Even
taking into account his possible bias in favour of his father, I
found Jack Van Dongen to be a careful, forthright and candid
witness. I accept that he has a strong practical or "hands on"
knowledge of cattle operations.
[21] Jack Van Dongen said several times that his father was not
a "tidy farmer". He further said that he was not at all proud to
say that "this is my father’s farm" when he drove by the
property-mainly because the vast accumulation of old and rusting
farm equipment on the property was an eyesore. (As an aside, he
testified that he and his brothers convinced their father to
finally get rid of this material. An auction was held and whatever
was not sold was sent for scrap). He also said that he would
classify his father’s farm as being at the lower end on the
"cleanliness scale" of farms that he had seen. (He said it was
similar to the variation in standards of cleanliness that one
might find in a person’s car.) All that being said, however, he
roundly rejected any suggestion that the conditions on the farm
represented a significant risk of harm to the animals on it.
[22] He testified that the manure in and around the barns was
cleared twice a week. His opinion was that this was an acceptable
practice because these were not milk producing cows and there was
no need to maintain the same cleanliness standards that one would
find at a dairy farm. He also did not believe that the
level of manure as depicted in the photos was at that much
variance from what one might see in many similar operations.
[23] He also pointed out that he had personally poured the
concrete for the pad between "barn 1 "and "barn 2". He said that
he had scored or roughened the concrete at that time to create a
surface that would help to prevent cows from slipping. It is fair
to say that he believed the suggestion that the cows might slip on
the pad, even with manure on it, was untenable. He had a similar
reaction to the suggestion that a cow might fall into the pond of
waste near the manure pit. His view was that cows were not stupid
and it was thus quite unlikely. (I note that Dr. Steinebach also
said that cows are more intelligent than they are usually given
credit for.).
[24] Jack Van Dongen also provided a rough drawing of the farm
and its buildings. By his calculation, the total area of shelter
available in the barns amounted to 9232 square feet or about 189
square feet per animal. The pastures all had gates on them which,
when open, gave the horses (and the cows for that matter) free
access to most of the other areas on the farm. Although he did go
to the farm on the day of the search, he could not say whether any
of the gates were open then, but said that in his experience, the
gates were open more often than not.
[25] Doug Anderson has been involved with the cattle business
since 1946. He knows the defendant as a business rival. He and Mr.
Van Dongen often bid against each other for the "culled" cattle at
the auction. Like the defendant, Mr. Anderson tries to
rehabilitate and "recycle" these cows (as he put it). The
techniques that are used include "dehorning" them, checking out
their udders, breeding and rebreeding them, all to get the cows
back into a productive state. He is not a friend of the defendant
nor have they ever been in business together.
[26] He confirmed Jack Van Dongen’s observation that there are
varying levels of cleanliness in cattle farms. When shown the
photographs taken of the property on April 7th he said that all
the cows that he saw in the photos looked healthy and that while
the conditions in the barns were not perfect, they were suitable.
When shown a photo in an unspecified location, of an SPCA worker
standing in manure which was deep enough to cover the "boot" part
of his/her gumboots, he said that one could find such a pile
somewhere on any farm (that is, one that had a number of cows on
it).
[27] Mr. Anderson was a very candid and forthright witness who
has considerable practical knowledge of the workings of the cattle
business and in particular of the type of business that the
defendant operates. The accumulation of manure is inevitable in
such operations, but there is no need, in his opinion, to scrape
or clear it as often as must be done where the cows are producing
milk on a dairy farm.
[28] Sheila Rushton’s evidence confirmed that she had known the
defendant for over 30 years through his involvement in the cattle
auctions in buying and reselling "culled " cattle and that he was
an honourable man who always paid his accounts promptly.
[29] None of these witnesses knew of the existence of
publications from Agriculture Canada which were "Recommended Codes
of Practice" for the care and handling of farm animals-one for
horses and one for cattle. These are clearly voluntary guidelines
and do not purport to impose any legal obligation on farmers in
Canada to comply with the recommended practices. Dr. Steinebach
considered the publications to be authoritative guidelines which
set standards of animal husbandry with which any competent farmer
would seek to comply.
ANALYSIS
[30] It is important to emphasize that the issue in this case
is whether the Crown has proven, beyond a reasonable doubt, that
Mr.Van Dongen permitted his animals to be "in distress" as defined
in the Prevention of Cruelty to Animals Act, not whether his
farming practices complied with voluntary guidelines created by
Agriculture Canada.
[31] In his admirably clear and cogent argument on behalf of
the Crown, Mr. Weddell stated that the prosecution did not
maintain that the defendant had failed to provide adequate food or
water for his animals. The case was rather that he had not
provided adequate shelter for the horses and that he had neglected
both the horses and cattle, essentially by allowing conditions to
exist on the farm that exposed the animals to an unacceptable risk
of serious harm.
[32] One unusual aspect of this case is that there was no
allegation that any of the animals actually suffered any harm.
[33] The offence under section 24 of The Protection of Cruelty
to Animals Act (I will refer to it hereafter as "the Act") is
committed by allowing animals to be in distress.. The noun
"distress" is defined in Merriam- Webster’s Collegiate Dictionary
(Tenth Edition) as "a pain or suffering affecting the body" or " a
painful situation’ or " a state of danger or desperate need"
[34] The definition in s.2 of the Act of animals "in distress"
must also be considered.
These are animals who are:
a) "deprived of adequate food, water or shelter" or,
b) "injured, sick, in pain or suffering" or,
c) "abused or neglected".
Subsections a) and b) refer to the most common consequences of
cruel conduct. "Abuse" likely refers to deliberate malicious acts
towards animals and encompasses many sorts of cruel conduct.
"Neglect’ must therefore refer to conduct which could cause
animals to end up in the states of "distress" referred to in the
previous subsections. The purpose of the Act is to prevent
cruelty to animals. It does not purport to subject farmers to
investigation of their daily practices to be measured against a
particular standard of farming practice and divorced from the
likely consequences of their actions.
[35] This is, in fact, the approach taken by the Crown in this
case. Mr.Gourlay and Mr. Weddell have set the prosecution’s task
as proving that the alleged neglect by the defendant exposed the
animals on his farm to a high and therefore unacceptable risk of
suffering the type of harm contemplated in the definition of
"animal in distress" in s.2 of the Act.
[36] The assertion that the defendant deprived the horses of
adequate shelter can be dealt with briefly. There was no evidence
that there were any adverse weather conditions either on April 7th
or on the previous visits by the SPCA officer. That is, Mr. Van
Dongen was not shown to have refused or neglected to provide
shelter to the horses when they needed it. As well, there were
barns on the property which could easily accommodate all of the
horses and cows. There were gates in the pasture fences, which
according to Jack Van Dongen were open frequently. There was,
therefore, shelter available to the horses during the time frame
set out in the information .Finally the horses were well nourished
and in good health. There was no evidence offered to show that any
of them was suffering from any physical malady related to being
improperly exposed to the elements..
[37] The statement made by the defendant to the effect that
horses did not need shelter is an expression of opinion in the
context of an argument with the SPCA officer. It is not an
admission that he has deprived them of needed shelter in the past
or that he would never provide them shelter in adverse weather
conditions in the future.
[38] Neither does the evidence establish that it was likely
that the horses were effectively restricted from access to water
by the existence of a pool of water over which they would not like
to travel. As the video of the news footage filed by the defence
shows, these were healthy, lively horses capable of jumping 5 foot
fences with ease. The pool of water was not a significant
impediment. Neither can it be inferred that they might have
consumed water from the nearby "effluent" pool. I accept Dr.
Steinebach’s evidence that horses are intelligent animals. They
were obviously healthy and well fed. There was potable water in 2
troughs in the pastures and that is obviously where they drank it
from and would drink from in the future.
RISK OF HARM
[39] The level of manure in the barns and surrounding area was
probably at a greater level than it should have been. That does
not, in itself, prove neglect or that the cows were at risk of
suffering any harm.
[40] The first issue is that the evidence presented at the
trial was obtained over a 2 hour period on a single day. There was
evidence that the defendant did have the manure scraped or removed
on a regular basis, perhaps twice a week. That is, it was very
likely that the manure was going to be scraped or cleared fairly
soon. The evidence did not establish that those conditions had
existed for any significant time period before the search. Dr.
Steinebach did not examine any of the cows and he did not say how
long they would have to be in comparable conditions before it was
probable that they might suffer illness of digestive difficulties.
Jack Van Dongen and Mr. Anderson, both highly experienced farmers,
indicated that the conditions were not unacceptable, although they
could have been better.
[41] This relatively brief glimpse at the farm also showed that
Mr. Van Dongen was in other respects paying attention to things he
was supposed to do. He had isolated a mare and foal from the other
horses. Sick calves were isolated in a properly spacious but
enclosed area. There was no suggestion that he had caused any of
the problems noted about the animals. It would be normal for any
herd of cattle to have some sick animals and the evidence did not
suggest that the defendant was not paying attention to their
needs.
[42] The Crown must prove its case to the standard of beyond a
reasonable doubt. The allegation that the defendant deprived the
horses of adequate shelter has not been proven to that standard.
[43] The crown’s case regarding the cows centres on the
assertion that they would have been in danger of contacting and
spreading disease from ingesting faecal organisms: of developing
digestive problems from the same source; of developing foot
problems and foot rot from having to stand and walk in manure: of
slipping on the manure on the cement pad and suffering injury.
[44] I must emphasize again that there was no evidence that any
of the cows had in fact suffered any illness or digestive problems
or that any of them had slipped and fallen or that they had any
foot problems resulting from exposure to manure The essential
question is: "How significant was the risk of harm?"
[45] There was no evidence introduced of any medical
examination of the cows nor of the scientific analysis of, for
example, tissue samples from them which could have indicated
whether there was something abnormal about their physical
condition.
[46] This tends to support the defence contention that the
conditions in which the cows were found were not indicative of any
neglect on the defendant’s part.
[47] The concept of possible harm from exposure to risk
includes the issue of how long any exposure must take place before
the likelihood of harm becomes significant. There was no evidence
of how long the cows had been exposed to the particular levels of
manure accumulation noted on April 7th. As well, the defence
evidence established that the manure was usually scraped or
removed twice a week, which means that the conditions as observed
on April 7 would not remain as they were for long.
[48] As well, it would not be in the defendant’s economic
interest to neglect his cows’ health. That is, he could not have
successfully bought and resold "culled" cattle for over 30 (and
probably closer to 50) years if that were his usual pattern. This
does not establish that he did not neglect the cows on this
occasion, but it makes it somewhat less probable that he did.
[49] There was evidence that by April 7, 2003 the horses had
been exposed to the risk represented by the equipment for a
considerable time That is, it must have taken a long time for that
quantity of material to accumulate. The horses (and sometimes the
cows as well) were nearby and had access to it. Yet there was no
evidence offered that any horses had, in the past, suffered injury
nor that anyone conducting the search on April 7 saw the horses
doing anything at or near this material, which might have resulted
in harm to them. There is considerable force to Casey Van Dongen’s
argument that the horses had become adjusted to the equipment and,
being intelligent, were not likely to injure themselves. As well,
no evidence was given of what exactly made up these large piles of
equipment and debris. Were there accumulations of large quantities
of sharp metal objects or other material which could cut the
horses or cause them to fall and suffer injuries? There was no
detailed evidence on that point.
VERDICT
[50] Considering all of the evidence I have a reasonable doubt
that the defendant neglected the horses and cows on his farm. For
the reasons stated earlier I also have a reasonable doubt that he
deprived the horses of adequate shelter.
[51] I find the defendant not guilty.
_____________________________________________
THE HONOURABLE P. D. GULBRANSEN, P.C.J.