Animal in Distress - By Veterinarian Advice (Re:Taking Possession of)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-05-18
CLNP Page ID:	2347
Page Categories:	[Animal Control (POA)]
Citation:	Animal in Distress - By Veterinarian Advice (Re:Taking Possession of), CLNP 2347, <>, retrieved on 2024-05-18
Editor:	Sharvey
Last Updated:	2024/02/15

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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(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).

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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.

(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.

R. v. C.O., 2022 ONCA 103 (CanLII)

[64] Adapting the language of Lamer C.J. to the offence created by s. 215(2)(a)(i), the fault component consists of conduct which shows a marked departure from the conduct of a reasonably prudent parent in circumstances in which it was objectively foreseeable the child was in “necessitous circumstances”. That is, circumstances in which the child’s health or safety were at risk and the child was in need of protection. The requirement that the Crown prove, as part of the harm element, that it was reasonably foreseeable to a prudent parent that the child was in need of protection, dictates that there must be some foreseeable risk of harm. Foreseeable risk of harm is, therefore, integral to the fault requirement for the offences created by s. 215(2)(a).

[65] In summary, risk of harm to the child’s health or safety informs both the scope of the duty to provide the necessaries of life in a given circumstance, and the child’s need for those necessaries. Furthermore, the objective fault requirement inevitably leads to a risk assessment on the way to determining whether the accused conduct constituted a marked departure from the conduct of a reasonably prudent parent in the same circumstances.

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

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.