R. v. Muhlbach (J.), (2011) 503 A.R. 369 (QB)

JudgeMoen, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateJuly 16, 2010
Citations(2011), 503 A.R. 369 (QB);2011 ABQB 9

R. v. Muhlbach (J.) (2011), 503 A.R. 369 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. JA.061

Her Majesty The Queen (appellant) v. James Muhlbach (respondent)

(070656756S1; 2011 ABQB 9)

Indexed As: R. v. Muhlbach (J.)

Alberta Court of Queen's Bench

Judicial District of Red Deer

Moen, J.

January 6, 2011.

Summary:

The accused was charged under s. 2(1) of the Animal Protection Act with permitting animals to be in distress. The trial judge held that the Crown had proved beyond a reasonable doubt the actus reus of the offence respecting some of the animals (i.e., that the accused permitted them to be or continue to be in distress). However, the trial judge acquitted the accused on the ground that he exercised due diligence (s. 2(2)) where he acted in accordance with "reasonable and generally accepted practices of animal care, management ...". The Crown appealed the acquittal, arguing that the trial judge misdefined the offence by reading in a requirement that the Crown need not prove, misdefined and misapplied the statutory defence of due diligence, misapprehended the evidence, and rendered an unreasonable verdict.

The Alberta Court of Queen's Bench dismissed the appeal, affirming the acquittal.

Animals - Topic 7015

Offences - General - Defences - Due diligence - The accused was acquitted of permitting animals to be in distress (Animal Protection Act, s. 2(1)) - Although the Crown proved beyond a reasonable doubt that some of the animals were in distress, the accused exercised due diligence (s. 2(2)) by caring for those animals (cows) in accordance with "reasonable and generally accepted practices of animal care, management ..." - The Crown alleged distress due to lack of water and noted that the automatic watering system was not functioning on the day the cows were inspected - However, there was no evidence that the cows were dehydrated or in obvious pain or extreme discomfort and the court accepted that the watering system was quickly repaired - The Crown appealed the acquittal, arguing that the trial judge misdefined the offence by reading in a requirement that the Crown need not prove, misdefined and misapplied the statutory defence of due diligence, misapprehended the evidence, and rendered an unreasonable verdict - The Alberta Court of Queen's Bench dismissed the appeal.

Animals - Topic 7044

Offences - Particular offences - Causing or permitting an animal to be in distress - [See Animals - Topic 7015 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 4].

Hi Hotel Limited Partnership v. Holiday Hospitality Franchising Inc. et al. (2008), 437 A.R. 225; 433 W.A.C. 225; 2008 ABCA 276, refd to. [para. 10].

R. v. Lohrer (A.W.), [2004] 3 S.C.R. 732; 329 N.R. 1; 208 B.C.A.C. 1; 344 W.A.C. 1; 2004 SCC 80, refd to. [para. 50].

R. v. Sekhon (V.), [2007] A.R. Uned. 326; 75 W.C.B.(2d) 172; 2007 ABCA 254, refd to. [para. 68].

Statutes Noticed:

Animal Protection Act, R.S.A. 2000, c. A-41, sect. 1(2) [para. 9]; sect. 2(1), sect. 2(1.1) [para. 43]; sect. 2(2) [paras. 11, 43].

Counsel:

Peter Roginski, for the appellant;

Willard D. Willms, for the respondent.

This appeal was heard on July 16, 2010, before Moen, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on January 6, 2011.

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7 practice notes
  • Table of Cases
    • Canada
    • Irwin Books Animals and the Law Part III
    • June 15, 2011
    ...[1978] JQ no 187 ........................................... 64, 65, 66, 68, 69, 74, 78, 89, 188 AnimAls And the lAw 296 R v Muhlbach, 2011 ABQB 9 ......................................................................107, 108 R v Munroe, 2010 ONCJ 226 .............................................
  • Provincial Animal Welfare Legislation
    • Canada
    • Irwin Books Animals and the Law Part II
    • June 15, 2011
    ...rejected the argument, f‌inding that a lack in either quantity or quality of sustenance could sustain a conviction; paras 8 and 13. 43 2011 ABQB 9 at para 11. 44 2010 NSSC 97 at paras 34–36. Evidence that puppies were infected with roundworms and parasites, that their bellies were so disten......
  • Canada's Experiment with Industry Self-Regulation in Agriculture: Radical Innovation or Means of Insulation?
    • Canada
    • Canadian Journal of Comparative and Contemporary Law No. 5-1, January 2019
    • January 1, 2019
    ...for such activity” s 2(2). See similarly Animal Welfare and Safety Act , CQLR, c B-3.1, s 7 [ Animal Welfare and Safety Act ]. 33. 2011 ABQB 9 [ Muhlbach ]. 312 Sanko~, Canada’s Experiment with Industry Self-Regulation in Agriculture had not been provided with water, that they sufered from ......
  • R. v. Walker (T.), 2013 ABQB 125
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • February 25, 2013
    ...of the appeal issue: Housen v. Nickolaison , 2002 SCC 33. A question of law is reviewed on a standard of correctness: R. v. Muhlbach , 2011 ABQB 9 at para. 5. [13] The Appellant essentially raises two grounds of appeal. The first ground of appeal relates to the Learned Trial Judge's ap......
  • Request a trial to view additional results
2 cases
  • R. v. Walker (T.), 2013 ABQB 125
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • February 25, 2013
    ...of the appeal issue: Housen v. Nickolaison , 2002 SCC 33. A question of law is reviewed on a standard of correctness: R. v. Muhlbach , 2011 ABQB 9 at para. 5. [13] The Appellant essentially raises two grounds of appeal. The first ground of appeal relates to the Learned Trial Judge's ap......
  • R. v. Farrell (L.A.), (2012) 540 A.R. 34 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • February 13, 2012
    ...Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 15]. R. v. Muhlbach (J.) (2011), 503 A.R. 369; 2011 ABQB 9, refd to. [para. 15]. R. v. Hruby (1980), 19 A.R. 230; 11 Alta. L.R.(2d) 347 (C.A.), refd to. [para. 17]. R. v. Pickles (1......
3 books & journal articles
  • Table of Cases
    • Canada
    • Irwin Books Animals and the Law Part III
    • June 15, 2011
    ...[1978] JQ no 187 ........................................... 64, 65, 66, 68, 69, 74, 78, 89, 188 AnimAls And the lAw 296 R v Muhlbach, 2011 ABQB 9 ......................................................................107, 108 R v Munroe, 2010 ONCJ 226 .............................................
  • Provincial Animal Welfare Legislation
    • Canada
    • Irwin Books Animals and the Law Part II
    • June 15, 2011
    ...rejected the argument, f‌inding that a lack in either quantity or quality of sustenance could sustain a conviction; paras 8 and 13. 43 2011 ABQB 9 at para 11. 44 2010 NSSC 97 at paras 34–36. Evidence that puppies were infected with roundworms and parasites, that their bellies were so disten......
  • Canada's Experiment with Industry Self-Regulation in Agriculture: Radical Innovation or Means of Insulation?
    • Canada
    • Canadian Journal of Comparative and Contemporary Law No. 5-1, January 2019
    • January 1, 2019
    ...for such activity” s 2(2). See similarly Animal Welfare and Safety Act , CQLR, c B-3.1, s 7 [ Animal Welfare and Safety Act ]. 33. 2011 ABQB 9 [ Muhlbach ]. 312 Sanko~, Canada’s Experiment with Industry Self-Regulation in Agriculture had not been provided with water, that they sufered from ......

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