Animal in Distress (Re:Taking Possession of)

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

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

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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.

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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.

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(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.

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.

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

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.

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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.

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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.

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

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.

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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.