R. v. Bernier (R.), (2012) 282 Man.R.(2d) 31 (PC)

• Judge: Moar, P.C.J.
• Court: Provincial Court of Manitoba (Canada)
• Case Date: April 12, 2012
• Jurisdiction: Manitoba
• Citations: (2012), 282 Man.R.(2d) 31 (PC);2012 MBPC 36

R. v. Bernier (R.) (2012), 282 Man.R.(2d) 31 (PC)

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. JL.026

Her Majesty The Queen v. Raymond Bernier (accused)

(2012 MBPC 36)

Indexed As: R. v. Bernier (R.)

Manitoba Provincial Court

Moar, P.C.J.

April 12, 2012.

Summary:

The accused was charged with nine counts under the Animal Care Act. The offences included failing to provide adequate medical attention, failing to provide an animal an adequate source of food and water so as to significantly impair the animal's health or well-being (multiple counts), and failing to provide an animal adequate medical attention when the animal was wounded or ill.

The Manitoba Provincial Court convicted the accused on seven of the counts.

Animals - Topic 7044

Offences - Causing or permitting an animal to be in distress - The R.C.M.P. received a complaint of thin and dead animals (beef cattle) on a local farm property - A cow was observed to be unable to bear any weight on the right front leg and could not keep up with the herd - A veterinarian opined that the cow had chronic arthritis of a long standing nature and that the injury would have been painful and placed the cow in distress - The accused alleged that he did not see the lame cow at any time - The Manitoba Provincial Court convicted the accused farmer of failing to provide adequate medical attention when an animal was wounded or ill (Animal Care Act, s. 2(1)(b)) and inflicting acute suffering, serious injury or harm, or extreme anxiety or distress that significantly impaired the animal's health (s. 3(1)) - The accused made no efforts to actively monitor his cattle during his every second day visit to drop off feed - The requirement of walking amongst the herd was an accepted practice and a reasonable expectation - The accused did not fulfill his duty as a commercial beef farmer by actively monitoring his herd - Had he done so the lame cow would have been detected earlier - Instead, the animal was left to suffer for at least fourteen days and thereby was placed in distress by this accused's inaction - See paragraphs 254 to 277.

Animals - Topic 7046

Offences - Failing to provide adequate food, water, shelter or care - The R.C.M.P. received a complaint of thin and dead animals (beef cattle) on a local farm property - A calf was found deceased - A veterinarian concluded that the calf's death was a textbook example of death by starvation - The accused farmer argued that the Crown failed to prove that the cause of death was the failure to provide food or that there was a lack of water available - The Manitoba Provincial Court convicted the accused farmer of failing to provide an animal an adequate source of food and water so as to significantly impair the animal's health or well-being (Animal Care Act, s. 2(1)(a)) - The onus was on the farmer to provide both adequate water and adequate food - The use of the term adequate, imported, that there had to be some standard for that being provided - Adequate food meant that it had to be sufficient or fit food to provide for the animal's health and well-being - Whatever food was being provided to the calf was obviously deficient of the necessary nutrition - It was therefore inadequate food that was being provided - See paragraphs 278 to 307.

Animals - Topic 7046

Offences - Failing to provide adequate food, water, shelter or care - The R.C.M.P. received a complaint of thin and dead animals (beef cattle) on a local farm property - A cow was taken to the Inwood Auction Market to be further examined and treated - The cow was provided food and water and given a couple of days to rehydrate prior to being examined - After being examined, the cow walked across the pen and laid down and eventually would not get up - It had to be euthanized - The accused farmer argued that the death was as a result of a combination of factors including the age of the animal, the extreme cold, listeriosis, toxins and poor dentition which as a combination was lethal - The Manitoba Provincial Court convicted the accused of failing to provide an animal an adequate source of food and water so as to significantly impair the animal's health or well-being (Animal Care Act, s. 2(1)(a)) - The animal was weak - That weakness came from an inadequate source of food that was being provided - The accused did not act in a reasonable manner to ensure that the cows survived - See paragraphs 314 to 327.

Animals - Topic 7046

Offences - Failing to provide adequate food, water, shelter or care - The R.C.M.P. received a complaint of thin and dead animals (beef cattle) on a local farm property - A large group of the cattle were found to be abnormally thin - A veterinarian testified that the root cause of the herd's condition was the lack of adequate food - The accused argued that the condition of the herd was caused by disease, poisoning, etc. - The Manitoba Provincial Court convicted the accused of three counts of failing to provide an animal an adequate source of food and water so as to significantly impair the animal's health or well-being (Animal Care Act, s. 2(1)(a)) - The accused's infatuation with other potential causes for the deaths in his herd led to the accused being somewhat neglectful with the day to day functioning of the remaining herd - It went from leaving dead animals strewn along the property and amongst the live animals to not recognizing the potential issues with the cold weather and altering the feeding pattern to address this change - He did nothing more to ensure that his cattle were receiving the nutrition level they required in order to survive - Even as his cattle were dying, he at no time contacted or sought the assistance of a veterinarian to ascertain the cause of death - His decision not to take any reasonable steps to address the fact his cattle were dying at significant pace was negligent - He should have acted much sooner to try and alleviate the distress imposed on these animals - See paragraphs 328 to 353.

Animals - Topic 7046

Offences - Failing to provide adequate food, water, shelter or care - The R.C.M.P. received a complaint of thin and dead animals (beef cattle) on a local farm property - Two cows were found to have cancer eye (a treatable disease) - A veterinarian testified that he was not able to indicate with any degree of specificity how long the cows had been suffering from this treatable disease - He suggested that normal farming practices would involve a farmer examining the herd during pregnancy testing for any issues, including cancer eye - The accused testified that he knew of cancer eye as a disease but did not know that two of his cattle were infected - The Manitoba Provincial Court found the accused not guilty of failing to provide an animal with adequate medical attention when the animal was wounded or ill - (Animal Care Act, s. 2(1)(b)) - Cancer eye did not appear to be an overly prevalent disease - Even in the general practice of farming, this might not have been discovered by a prudent farmer until the cattle were brought into a handling facility - The court could not conclude that the accused did not act reasonably - See paragraphs 354 to 359.

Animals - Topic 7046

Offences - Failing to provide adequate food, water, shelter or care - [See Animals - Topic 7044 ].

Cases Noticed:

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 251].

R. v. Muhbach, [2011] A.J. No. 17 (Q.B.), refd to. [para. 361].

R. v. Pappajohn, [1980] 2 S.C.R. 120; 32 N.R. 104, refd to. [para. 361].

R. v. Sansregret, [1985] 1 S.C.R. 570; 58 N.R. 123; 35 Man.R.(2d) 1, refd to. [para. 361].

R. v. Benjamin (S.), [2010] O.T.C. Uned. 5799 (Sup. Ct.), refd to. [para. 361].

R. v. Swietorzecki (S.) (1995), 80 O.A.C. 149 (C.A.), refd to. [para. 361].

R. v. MacIsaac (A.), [2008] N.S.R.(2d) Uned. 227; 2008 NSPC 81, refd to. [para. 361].

R. v. Loerzel (R.) (2007), 304 Sask.R. 141; 413 W.A.C. 141; 2007 SKCA 107, refd to. [para. 361].

R. v. Carter (H.), [2006] A.R. Uned. 790; 2006 ABPC 341, refd to. [para. 361].

R. v. Jackson (J.), [2011] N.S.R.(2d) Uned. 298; 2011 NSPC 108, refd to. [para. 361].

R. v. Lamb (D.), [2010] Sask.R. Uned. 145; 2010 SKPC 106, refd to. [para. 361].

R. v. Kowalik (J.), [2010] Sask.R. Uned. 107; 2010 SKPC 58, refd to. [para. 361].

Counsel:

Shaun R. Sass, for the Crown;

Zilla Jones, for the accused.

This trial was heard by Moar, P.C.J., of the Manitoba Provincial Court, who delivered the following decision on April 12, 2012.