R v Huisman [2007] BCJ No 997 (BC Prov Ct)

The defendants are charged with causing cows and goats to be in distress, contrary to s. 24(1) of the Prevention of Cruelty to Animals Act, R.S.B.C. 1996, Chapter 372 (“PCA Act”). A warrant had been authorized pursuant to s. 13(2)(a) for the purposes of relieving the animals’ distress. In this voir dire the defense challenges the reasonableness of the search and says that the defendants’ section 8 charter rights have been breached.

Jan Huisman is the owner of a five acre farm. His son Craig took care of the calves. He was given sick calves from other farmers. His plan was to make them well and sell them later at the auction.

Complaints were made by the public concerning lack of food, water and shelter for goats and calves. As investigations were conducted, various orders were made to remediate the health and wellbeing of these animals.  The evidence makes clear that the defendants were cooperative and successfully met the demands of the officers.

On July 30, a complaint was made that a calf was observed not moving for over five hours. An

officer attended the farm on that date, but no one was home. She left a notice at the door and mailbox stating that the defendants should contact the officer. Later that day, telephone contact was established with Craig, who advised that one of the calves had pneumonia and was being treated with advice from his veterinarian. The officer told Craig that she would be at the farm the next morning for a visit but on her arrival on July 31, no one was home.

She observed four calves in a trailer, which was set at an angle with the hitch on the ground. They appeared to be alert animals. Next to the trailer was a dead calf. Another notice was left at the door requesting the owner to contact the officer as soon as possible. Five hours later, the officer re-attended the property and observed that the calves remained in the trailer. No one was home. A further notice to contact was left at the door of the residence. No one responded. On August 4, 2004, a section 13(2)(a) warrant was issued.

The warrant was executed on August 4, 2004 at which time all calves were removed, which totalled 40 in number along with 5 goats.

The investigating officer, Officer Drever, carefully examined all the animals throughout the farm. She did so by asking questions and listening to the veterinarian, Dr. Steineback, as he assessed each animal and based on his opinion she would make a decision as to whether or not the animal would be seized.

The Judge found that Dr. Steineback was very thorough in his assessment of each animal and a finding of distress is reasonable in all the circumstances. However, bad faith was demonstrated as the officer refused to address any prospect of relieving distress. The only option she had in mind was to seize the animals.

According to the Judge, bad faith is seen in the misuse of the s. 13(2)(a) warrant. If the evidence collected was only incidental to the primary objective of relieving an animal’s distress, then the question of bad faith becomes tenuous. However, in this instance the evidence collected was only for the purposes of a s. 24 prosecution. This amounts to an abuse of the warrant provisions of the PCA Act.

This was an egregious breach of the defendants’ Charter rights. In these circumstances there would be a serious impact on the reputation of the administration of justice if the evidence were admitted. All evidence shall be excluded.

Source: Case Law

Jurisdiction: British Columbia

Topics: animalsCanadian Charter of Rights and FreedomsconstitutionalcowscrueltydistressevidencegoatsseizureUnreasonable search

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