IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT:  These are my reasons for judgment in file 79286-1, R. v. Louise Frances McAnerin.

[2]           Ms. McAnerin is charged with the following two offences under the Prevention of Cruelty to Animals Act, RSBC, chapter 372. (I will refer to this as the PCAA.):

[3]           These charges involve strict liability offences.  The Crown must prove beyond a reasonable doubt that Ms. McAnerin caused the animals to be in distress.  Even if distress is proven, Ms. McAnerin can raise the defence of due diligence, using a balance of probabilities standard.  In considering these issues, I will also address whether the SPCA acted fairly and without animus. 

[4]           Ms. Johns worked as a host at a place called "The Campground" in Lake Errock in 2012.  She lived in a trailer near the front of the facility and she knew Ms. McAnerin, who lived in a trailer on site 21 or 22.  The SPCA officers first came to The Campground in early 2012 and Ms. Johns directed them to Ms. McAnerin's trailer.  Ms. Johns had seen Ms. McAnerin at the trailer within the week, but no one was home during the SPCA's first visit to the trailer.  Ms. McAnerin came to the trailer some three to four days after the SPCA's first visit.

[5]           During the SPCA's first visit to Ms. McAnerin's trailer, Ms. Johns saw a full-grown cat and two kittens looking out the trailer window.  Ms. Johns had not seen the cats before and did not know their origin.  The SPCA officers could not get in the trailer as it was padlocked.  Ms. Johns later informed the SPCA that Ms. McAnerin had returned to the trailer and then left again.  Ms. McAnerin had one or two dogs with her.  The SPCA later returned and entered Ms. McAnerin's trailer under the apparent authority of a search warrant. 

[6]           Ms. Dionne is Ms. McAnerin's former daughter-in-law, and in 2012 she lived in a basement suite in a four-plex on 117th Avenue in Maple Ridge, B.C.  According to Ms. Dionne, Ms. McAnerin was essentially homeless and she had been staying at Ms. Dionne's home off and on for about two months, since just prior to Christmas of 2011.  Around Christmas time, Ms. McAnerin had two dogs and they could stay with her in Ms. Dionne's home.  However, in the beginning of January 2012, Ms. McAnerin came with a third dog, and Ms. Dionne could not allow three dogs in her home.  In fact, she was not actually allowed any pets. 

[7]           Between January and late February 2012, Ms. McAnerin came and went more than once.  When Ms. McAnerin did visit, the three dogs stayed in the back of Ms. McAnerin's Jimmy, a truck with a hatchback.  When the SPCA spoke with Ms. Dionne, Ms. McAnerin had been at her place about one to two weeks with her three dogs.  Ms. McAnerin came because her travel trailer in Lake Errock had no running water due to the freezing temperatures. 

[8]           Ms. Dionne described her understanding of Ms. McAnerin's routine with her three dogs.  At around 6:00 p.m. each day, Ms. McAnerin would leave for about half an hour to let the dogs out.  Next, around midnight, Ms. McAnerin would leave to let the dogs out for dinner.  Usually when Ms. McAnerin let the dogs out, they were on leashes.  As to what would happen between midnight and 6:00 p.m. the next day, Ms. Dionne said that Ms. McAnerin would sometimes go out, but not very often.  Ms. McAnerin was up late at night and tended to sleep until 1:00 or 1:30 p.m.  Ms. Dionne did not look after the dogs in the morning.  Her 18-year-old son did take the dogs out at an earlier period when Ms. McAnerin only had two dogs. 

[9]           According to Ms. Dionne, Ms. McAnerin routinely fed the dogs once per day.  She would make up dishes such as broth and boiled rice.  Ms. McAnerin had what was thought to be a brown Chihuahua, a white and black Jack Russell called Bones, and a fairly big Shepherd.  I will say later that those descriptions are not quite accurate, but that is what the evidence was.   Two dogs were kept in the back of the Jimmy and the Jack Russell was in a kennel in the Jimmy. 

[10]        On the day the SPCA came in February of 2012, Ms. McAnerin was sleeping when they arrived around 1:00 or 1:30 p.m.  Ms. Dionne did not know exactly when the dogs were last fed.  Ms. McAnerin had made a big pot of rice and broth the night before, but Ms. Dionne did not see if the animals were fed.  Ms. Dionne conceded that she never really went out to the Jimmy, but she was not aware of water being available for the dogs and she was not aware of a water bowl.  Ms. Dionne was aware that the Chihuahua-like dog had a history of seizures.  When the SPCA came and left in late February of 2012, Ms. Dionne and Ms. McAnerin did bathe the two smaller dogs.  Ms. McAnerin stayed a couple of more days.  Ms. Dionne did not report Ms. McAnerin to the SPCA.

[11]        During cross-examination, Ms. Dionne agreed that she never really went close up to the Jimmy when it was parked near her home.  She did sometimes go out with Ms. McAnerin at night and she observed the dogs eating, going to the bathroom, and she believed they were given water.  Ms. Dionne did not see if there was food in the Jimmy or things to keep the dogs warm.  Ms. Dionne said that during the time Ms. McAnerin had three dogs, she would come and go from the four-plex, but she usually stayed a week.  Ms. Dionne agreed that after 1:00 a.m., Ms. McAnerin could have gone out to tend the dogs without her being aware, as she was asleep.  Ms. Dionne also said it was possible that Ms. McAnerin also fed her dogs oatmeal.

[12]        Also during cross-examination, Ms. Dionne maintained that the dogs were let out more than once per day, they were fed rice, and sometimes Ms. McAnerin's vehicle left with the dogs.  She did not say all of that to her friend, who apparently made the report to the SPCA.  Ms. Dionne denied telling the SPCA officers that the dogs were fed mouldy bread, and Ms. Dionne did tell the SPCA the dogs were not, in her view, malnourished.  After refreshing her memory, she still could not recall saying the dogs were fed oatmeal and mouldy bread.

[13]          On February 29th, 2012, SPCA Officer Gilbert was instructed to attend near Ms. Dionne's residence to examine the state of three dogs purportedly in a Blazer vehicle.  When he arrived in the morning, he was approached by Ms. McAnerin walking three dogs.  Ms. McAnerin then made some statements to Officer Gilbert, which I found to be voluntary.  Ms. McAnerin stated that the SPCA Officer McKnight had seen her the day before and given her some orders to follow regarding her dogs.  She was told to take one dog to a veterinarian within two days, and although she pointed towards Alouette Veterinarian Clinic, she had not yet made an appointment.  Ms. McAnerin further stated that she had been up late bathing her dogs, and it had been hard to clip the nails of her Beagle.  Ms. McAnerin asked for Officer Gilbert's card and said she would be giving the SPCA a call.

[14]         She walked her dogs towards the Dionne residence and said she was putting the three dogs in her vehicle because there was nowhere else to put them.  According to Officer Gilbert, the dogs looked groomed, but Ms. McAnerin had been unable to trim the dogs' nails herself.  She planned to take the Beagle to the veterinarian. 

[15]        Officer Gilbert looked inside Ms. McAnerin's Blazer and saw a kennel with a blanket over it.  He saw another blanket and lots of debris.  He did not see food or water, but saw a bowl of water by a tire.  Later in the afternoon, Officer Gilbert observed the Blazer, but no dogs were inside.

[16]        On cross-examination, Officer Gilbert clarified that the water dish he saw near the vehicle tire was full of water.  He also confirmed that he never saw the dogs being put in the Blazer.  He did not think the dogs looked malnourished.

[17]        Officer McKnight explained that as an animal cruelty investigation officer, she had the right to immediately remove an animal if it was in critical distress.  If the animal was in a dwelling, a search warrant would be required.  If an animal was not in critical distress, she would advise the owner to take any required remedial steps, and she would only seek a warrant if those steps were not taken. 

[18]        On February 27, 2012, in response to a report, Officer McKnight attended near the Dionne residence where a Chevrolet Blazer was located; however, the Blazer drove away.

[19]        On February 28th, 2012, Officer McKnight again attended the Chevrolet Blazer near the Dionne residence with the Ridge Meadows RCMP.  Officer McKnight observed that the Blazer was parked in a dead-end alley and dogs were inside, barking.  There was condensation on the windows.  Two dogs, the black and white Jack Russell mix and the Beagle, were in a wire crate in the back of the vehicle.  The Jack Russell mix was on a choke chain.  The crate was two feet by two-and-one-half feet in size, and the dogs were in constant contact. 

[20]        A third dog, a Collie mix, was right beside the crate and there was yellow twine tied to its collar.  The Collie could not lay down sideways.  Blankets were available and one blanket was in the crate, and the Collie laid on another blanket.  No food or water dishes were visible. 

[21]        Around noon on February 28th, 2012, Ms. McAnerin was asked to come out of the residence and she opened up the Blazer.  Officer McKnight felt a warm waft of air which smelled of ammonia, with a slight odour of faeces.  Again, no food or water dishes were seen.  As stated earlier, the Jack Russell mix had a choke chain around its neck, which was clipped to the corner of the crate.  This dog could only move its head 12 inches and it was acting aggressively.  The Beagle in the crate was not chained, and it was quiet. 

[22]        Officer McKnight made observations of each dog.  The Collie was known as "Chance," and he was over 14 years old.  When he jumped out of the Blazer, he urinated for an extended period.  His coat was sticky and smelly and his ears were red.  He had long nails.  He was underweight, but not emaciated.  One of his teeth was broken.

[23]        The Beagle was known as "Cooch" and she also urinated for a long time after exiting the Blazer.  She was scratching her belly and back legs.  Her ears were red, her nails were long and she was a little overweight.  She had a large growth under her rectum. 

[24]        The Jack Russell mix was known as Bones and he was initially quite aggressive.  He had wiry hair, which was matted at the rear.  He, too, urinated for a prolonged period after exiting the vehicle.  He had long nails.  Bones appeared well-fed, but he was dirty and unkempt.  The neck hair on this dog had been worn down by the choke chain.

[25]        Ms. McAnerin made a number of statements to Officer McKnight, which I found to be voluntary.  She said she had owned the two smaller dogs since 2009, but she had owned the larger dog for only six months.  Prior to noon on February 28th, 2012, the last time the dogs were out of the vehicle was midnight the night previously.  Ms. McAnerin also stated that the Beagle had a history of seizures, but the seizures had lessened with the oatmeal and rice diet.  The dogs had not seen a veterinarian.  She said the dogs were not allowed in the residence, but she had only been at the Maple Ridge residence a couple of days prior to February 28th, 2012. 

[26]        Officer McKnight explained to Ms. McAnerin that the dogs could not be contained without adequate ventilation and she was concerned about their itchiness.  She also expressed concern about the Beagle's undiagnosed seizures and growth on its rectum.  Officer McKnight asked Ms. McAnerin if she wished to surrender the animals, and she said, "No." 

[27]        In consultation with her supervisor, Officer McKnight applied for a search warrant because of concerns over the dogs' lack of water, space and ventilation.  The warrant was denied. 

[28]        Officer McKnight then issued an order to Ms. McAnerin requiring her to comply with certain conditions either immediately or within 24 hours.  Officer McKnight had a number of concerns, but did not believe the dogs to be in critical distress.  The order included requirements that the dogs have access to clean water and sufficient food, their coats were to be free of matting and necessary nail care was required, veterinary care was required, the animals were not to be confined in an enclosed space, and they needed to be protected from heat and cold.   The blankets were to be cleaned and the dogs were not to be hitched where a choke collar is involved or where a rope is tied directly around the dogs' necks.  Proper separation of the animals was required.  This notice was delivered at 5:40 p.m. on February 28th, 2012.

[29]        On February 29th, 2012, Officer Gilbert was requested to attend upon Ms. McAnerin to see if the orders had been complied with.  Officer Currie had also attended Ms. McAnerin's trailer in Lake Errock and cats were discovered there.  Ms. McAnerin explained in the text messages that the "kitties only temp.  Were dumped in the park the day I left, but will send someone to check on trailer.  Lots of feral cats in park."

[30]        Officer McKnight was successful in obtaining a search warrant to search Ms. McAnerin's trailer in Lake Errock.  The warrant was executed on February 29th, 2012 and Officers McKnight, Tanguay and Carey attended, with the assistance of the RCMP.  The smell of ammonia in the trailer was overwhelming and there was a lot of debris.  A bowl of crunchy cat food was seen on the floor, but no water was seen for the cats.  The windows and vents to the trailer were all closed.  Newspaper contained fecal matter, but no litter boxes were found.  Three tabby kittens and one adult cat were located in the trailer.

[31]         Officer McKnight tendered a booklet of photographs of Ms. McAnerin's trailer, as well as a booklet of photographs of Ms. McAnerin's Blazer vehicle.   After the search warrant was executed on February 29th, 2012, three kittens and one cat were seized for being in distress.  Attempts had been made to contact the owner.   Officer McKnight stated that the cats appeared to be well fed, but had dirty, tacky coats.  A skin test was performed on the cats and they did not appear to be dehydrated.  The eldest cat had a tattoo in its ear and Officer McKnight learned that the tattoo came from the Alouette Veterinarian Clinic and the cat was registered to Ms. McAnerin.  The cat was six months old and had been spayed.

[32]        Officer McKnight became aware that Ms. McAnerin had returned to the Lake Errock trailer with her dogs on March 1st, 2012.  In cross-examination, Officer McKnight testified that she had never met Ms. McAnerin before, but she knew of some of Ms. McAnerin's prior history with the SPCA in Grand Forks, B.C.  Also during cross, Officer McKnight agreed that not every dog left in a vehicle is necessarily in distress.  She also agreed that Ms. McAnerin's vehicle was not always parked near the Dionne residence, and she was not aware of what was happening with the dogs on a daily basis. 

[33]        Officer McKnight was aware that the Collie, Chance, was some 16 years old, but his body weight was thin, with a three-of-nine body score.  That evidence actually came from Dr. Walton.  She was unaware of Chance's medical history.  She did know that Ms. McAnerin only owned Chance for six months, and Ms. McAnerin said he was in bad shape when she got him. 

[34]        Officer McKnight stated in cross-examination that her concerns for the animals changed following the issuance of her order on February 28th, 2012.  When Officer Gilbert checked the dogs on February 29th, the dogs looked bathed; however, she still had a concern with the dogs' nails and lack of veterinary care. 

[35]        As for the cats found in the Lake Errock trailer, Officer McKnight reiterated in her cross-examination that her concerns were the smell, lack of adequate care, and lack of ventilation.

[36]        Officer Carey is another animal protection officer with the SPCA.  She attended the Lake Errock trailer at 1:00 p.m. on February 29th, 2012.  She observed that the trailer at site 21 was padlocked from the outside.  Three to four kittens and an adult cat were kneeling at a trailer window.  The windows were all sealed.  Officer Carey left a doorknocker notice requesting that the trailer occupant contact her within two hours, or legal action may be taken.  No response was received from Ms. McAnerin. 

[37]        At 6:30 p.m. the same day, Officer Carey accompanied Officers McKnight and Tanguay, together with the RCMP, to execute a search warrant of the trailer.  Officer Carey broke the padlock.  The smell inside the trailer was of ammonia and animal waste.  The smell made her feel sick and her eyes burned.  Officer Carey observed three kittens in the trailer.  Their bellies were distended and they appeared to need deworming.  One adult cat was also present.  The trailer had very limited space and there was lots of debris.  No water was found inside; however, food was visible.  There was kibble in a silver dish.  Officer McKnight decided to seize the cats because no caregiver was onsite, there was a lack of water, ventilation was poor and the air quality was hazardous. 

[38]        On March 1st, 2012, the following day, Officer Carey took steps to see if Ms. McAnerin and her dogs were now at the Lake Errock trailer.  She also understood that the dogs had not received veterinarian care as required by the prior notice.  Officer Carey obtained and then executed a further warrant around 6:30 p.m. on March 1st, 2012.  At that time, Officer Carey observed Ms. McAnerin back at the trailer with her dogs.  Ms. McAnerin indicated that the dogs had not seen a veterinarian.  Officer Carey also felt the dogs were in a poor environment.  The odour of ammonia remained in the trailer and no windows were open.  Water was available for the dogs.  Based on her concerns, Officer Carey seized the dogs. 

[39]        Officer Carey observed that the Collie, Chance, looked like he had had a bath, but he was thin and his nails were long.  The Jack Russell mix also appeared bathed, but it was "itchy" and its nails needed clipping.  The Beagle smelled bad and had a growth near its rectum. 

[40]        Officer Carey heard certain statements from Ms. McAnerin, which I admitted as being voluntary.  Ms. McAnerin said that the Beagle had not seen a veterinarian.  Ms. McAnerin felt that the Beagle's seizures had subsided because of the diet provided.  Ms. McAnerin also said she had no money for a vet, but she had made some efforts to see a veterinarian. 

[41]        In cross-examination, Officer Carey said she was aware Ms. McAnerin had not been at the trailer for some days when she posted the two-hour notice.  Officer Carey was cross-examined about her grounds for the search warrant used to seize the three dogs.

[42]        Dr. Walton is a veterinarian with 16 years of experience, and he has expertise in the treatment and care of dogs and cats.  He was qualified as an expert in this proceeding.  He is the owner of Dewdney Animal Hospital and has assisted the SPCA in investigations since 2005.   He testified that he acts completely independent of the SPCA and he asks them not to give him any particulars until he has conducted an initial examination of the animals in question.

[43]        Dr. Walton wrote a letter dated March 2, 2012 summarizing his examination of the three dogs.  The collie had elongated nails, but a good coat.  His body score was three-out-of-nine, which is too thin.  The Collie had no physical ailment to account for the thinness, but if the dog was "geriatric," that could account for weight loss.  The Collie had good teeth, but a weak backend. 

[44]        The Jack Russell mix also had elongated nails, but a good coat.  This dog had a normal body score, but had early cataracts and mild gingivitis.  He had a mildly distended abdomen, which could be as a result of a problem with the adrenal gland (Cushing's disease). 

[45]        The female Beagle had elongated nails and a good coat as well.  It was obese.  The teeth, ears and eyes were normal.  There was a two-centimetre mass in the perirectal region.  This mass was later determined to be benign.  Dr. Walton was asked about the Beagle having seizures.  Dr. Walton said the owner should keep a calendar about the timing and length of the seizures.  The dog should be taken to a vet to determine what type of seizure the dog has and whether medicine is required.  Diet can effect seizures and lower protein diets may help, but bloodwork is required. 

[46]        Dr. Walton also wrote an e-mail in response to inquiries posed by Crown counsel.  Respecting the three dogs in Ms. McAnerin's vehicle, Dr. Walton was concerned about a lack of ventilation and humidity build-up.  He was further concerned that two smaller dogs were in a crate designed for one animal.  These crates are wholly inadequate to hold a dog for 24 hours a day.  Each of the smaller dogs require a .7 to one metre squared of space, and the larger Collie needed 1.5 to 1.8 metres squared of space.  These standards came from the Prince Edward Island Regulations. 

[47]        If these dogs were only taken out twice per day, that would be inadequate and would increase the dogs' stress.  Dr. Walton was also concerned that the vehicle would not provide relief from the cold.  Blankets may improve things.  Dr. Walton believed the chaining of the Jack Russell in the crate to be exceptionally egregious, as it prevents the dog from finding more comfortable resting spots.  There is also risk of strangulation. 

[48]        As to the diet of oatmeal, rice and broth, such a diet is grossly inadequate in the long term.  Only one dog was underweight, so caloric intake may have been sufficient for the short term.  Dr. Walton opined that if no water was present for the animals inside the vehicle, that would amount to gross negligence.  Dogs need to be hydrated on an "as-needed" basis.  If the dogs were given water at midnight, Dr. Walton would be comfortable with the dogs being given water eight hours later.  These three dogs had no evidence of dehydration when examined on March 2, 2012.

[49]        As to the cats in the trailer, Dr. Walton felt they were in squalid and unsanitary conditions.  The personal belongings were in precarious positions.  Dr. Walton also was concerned that no water was visible.  The strong smell of ammonia would be highly irritating to the cats. 

[50]        In cross-examination, Dr. Walton indicated that if he had seen dogs in a similar physical condition to the three he examined in this case, he would not have reported them to the SPCA on that basis alone. 

[51]        Dr. Walton stated that he investigated the outdoor temperature ranges for early March 2012 on his own, because he needed to know the ambient temperatures to make his opinions.  He also said he assumed the dogs were in McAnerin's vehicle for a prolonged period and he did not know exactly how long the dogs were let out of the vehicle.  

[52]        Dr. Walton did state in cross that water should be freely available to the dogs in the vehicle, but that may not always be required if the owner is present.  Dr. Walton agreed that his second report focused on the negative; i.e., neglect issues.  Of course I should add that Dr. Walton did not have the advantage of Ms. McAnerin's version of events.

[53]        Dr. Walton was adamant that a dog should never be left alone, chained in a cage, even for five minutes.

[54]        Ms. McAnerin is now 62 years of age.  She has owned dogs throughout her life, and she has also cared for cats, chickens, ducks, geese, sheep, pigs, horses and pigeons. 

[55]        Ms. McAnerin gave her own evidence as to difficulties she has had with the SPCA in the past.  In 2004, when she lived on five acres in Grand Forks, B.C., the SPCA seized all of her animals, including dogs, cats, chickens, sheep and pigs.  Her water pump had broken and she had to haul water.  Ms. McAnerin was using a holding tank for the water, but for reasons which she does not fully understand, the SPCA was not satisfied with her efforts.

[56]        Again in 2007, the SPCA intervened and seized five to seven of her dogs.  Her dogs were in a pen and according to Ms. McAnerin, they had clean drinking water.  The dogs were properly cared for and received veterinarian care; however, someone let the dogs out and they were chasing some horses, so the dogs were seized. 

[57]        In February or March 2008, the RCMP informed her she had to remove her animals or she would face jail.  She placed her many animals with someone at the Humane Society; however, Ms. McAnerin admitted that she snuck her Blue Healer dog back home.  That Blue Healer killed a dog, so Ms. McAnerin was charged. 

[58]        Based on legal advice at the time, Ms. McAnerin went to Colony Farm for a fitness assessment.  Unfortunately, when she was at Colony Farm, some "druggies" moved onto her Grand Forks property and sold many of her belongings.  What is worse, her house was set on fire.  Her property was ultimately sold and the SPCA received some $40,000 of the sale proceeds for a lien in connection with the 2004 animal seizure.  That lien was for the boarding fees for the animals. 

[59]        Sadly, Ms. McAnerin then ended up living in a tool shed and various other shelters with her two dogs, which she apparently was allowed as companion animals.  She has owned her Beagle, Kutya or Cooch, and her Jack Russell mix, Bones, since 2009, until the SPCA seizure in this case in 2012.  The Beagle had a history of seizures and back problems.

[60]        Ms. McAnerin then acquired the Collie, Chance, after Chance's owner, her friend, had become hospitalized.  Chance was 16, and she was not going to allow him to go to the SPCA.  According to Ms. McAnerin, she was charged for breaching the order allowing her only two dogs, but Judge Fabbro decided to do nothing about the breach.  Two weeks before her order was to end, her three dogs were then seized by the SPCA, based on the charges in this court case. 

[61]        In February of 2012, Ms. McAnerin had been living in a trailer at Lake Errock.  She also spent time at the home of her former daughter-in-law, Ms. Dionne, in Maple Ridge.  Her trailer is 8 feet by 17 feet.  The Beagle sleeps with her, and Bones ends up sleeping in the aisle way.  The Collie sleeps under the table.  She feeds the dogs oatmeal with bananas and honey for breakfast, and then rice, vegetables and dog food for the second meal of the day.  The dogs also get snacks. 

[62]        Sometimes the power would go out at the trailer for as long as four days, so she would stay at Ms. Dionne's home.  Although Ms. Dionne originally allowed Ms. McAnerin to take her dogs in the Maple Ridge home, the dogs were no longer allowed to be inside as of the time of these charges. 

[63]        Ms. McAnerin said the dogs stayed in her truck four to five days in total.  She walked the dogs four times per day.  She would run the engine if the dogs were cold, and they also had blankets.

[64]        When Ms. McAnerin first encountered the SPCA in February of 2012, she showed them the dogs in the vehicle.  The SPCA did ask her to take the Beagle to the veterinarian and she was given 24 hours to do so.  She tried phoning a vet to make payment arrangements.  One veterinarian would have allowed payments, but was not available, and she could not afford the other vets that she phoned.

[65]        Ms. McAnerin said she took the dogs out for water every couple of hours.  Bones was tied to the crate for only one day.  Ms. McAnerin did this because Bones could pick on the Beagle if he got "frenzied."  When Ms. McAnerin believed that Ms. Dionne had reported her to the SPCA, she decided to return to the trailer.  As for the cats, Ms. McAnerin said three were feral and one of the cats was fixed.  The cats were left food and water, the windows were open, the fan was left on, there was water in the sink and there was food in a bowl. 

[66]        After the warrant was executed, Ms. McAnerin believed the SPCA "trashed" her trailer.  She kept the trailer in nice condition. 

[67]        Ms. McAnerin then spoke of her difficulties with Ms. Moriarty in attempting to get her animals back.  Ms. McAnerin believed that her Collie weighed some 70 pounds, the Beagle was a little overweight, and the Jack Russell mix was a good weight. 

[68]        In cross-examination, more details were put to Ms. McAnerin about her history with the SPCA.  On July 16th, 2009, a joint submission as to sentence was before Judge Fabbro and details as to her animals being in distress were placed before the court.  This line of questioning was permitted because the defence first led evidence as to the SPCA history and there was an allegation of animus on the part of the SPCA.

[69]        During cross, Ms. McAnerin reiterated that she spent four to five days at a stretch at Ms. Dionne's home when power was out at the trailer.  She also said she got the kittens from a Vietnamese store near the campground.  She had left the cats in the trailer maybe twice.  She would leave a bowl of food, and water in a bowl and in the sink.  She had difficulty identifying a water bowl in the photographs.  Ms. McAnerin also put newspapers in a kennel on the floor for the cats. 

[70]        Ms. McAnerin said she would still take Chance if she had to do it all over again.  She realized she was in breach of an order, but she was being compassionate to an animal.  Ms. McAnerin did not believe the choke chain on Bones was dangerous because he was contained.  She also said the blankets in her vehicle absorbed any urine and she would change them when required.  She later agreed that it may have been better to put Chance in the front of the vehicle, Bones in the cage, and Cooch outside, but beside the cage.

[71]        Further into cross, Ms. McAnerin said her dogs were her life and she would not leave them too long.  She said they always had food, water, treats and love.  As to the Beagle's growth on his rectum, Ms. McAnerin said it was always there and was not getting bigger.  She said he had not had a seizure in nine months.

[72]        In re-direct, Ms. McAnerin said she took photographs of the trailer after she had cleaned it up following the SPCA seizure.  She normally kept the trailer in this cleaned-up state.

[73]        I am considering the Prevention of Cruelty to Animals Act, the PCAA, as of February and March 2012 when the allegations arose.  Section 1(2) of the PCAA says that an animal is in distress if it is:

[74]        Section 9.1 of the PCAA sets out, under ss. (2), that:

[75]        Cases such as R. v. Fountain (2013) BCPC 193, have confirmed that charges under the PCAA are strict liability offences.  The Crown needs to prove beyond a reasonable doubt only the actus reus underlying the offence.  However, it is open to the defendant to prove that all due care has been taken.  The defendant must only establish on the balance of probabilities that he or she has the defence of reasonable care.  See R. v. Gwaii Wood Products Ltd. et al (2015) BCPC 292. 

[76]        In written submissions, defence counsel has very ably set out a number of cases where an accused is charged with causing an animal to be in distress.  In most of those cases, when the animals were seized by the authorities, they were suffering physical effects from alleged neglect of a person having control of the animal.  

[77]        In my view, however, it is not always necessary for the Crown to prove the animal suffered physical harm for there to be a finding of distress.  Section 1(2) of the PCAA states that an animal is in distress under ss. (a) if the animal is deprived of things such as food, water or shelter.  A finding of distress can also be made under ss. (a.1) and (a.2) if an animal is kept in unsanitary conditions or is not protected from the elements.  Of course these listed situations must be proven to be at a concerning level, but there is no requirement that the animals themselves be symptomatic.  Subsections (b) and (c) of s. 1(2) do require proof of injury, illness, pain, abuse or neglect.

[78]        I conclude that at least components of the definition of distress allow for a finding of distress even where the animals show no physical symptoms.  The legislation envisions sanctioning action or inaction before an animal is necessarily harmed or injured.

[79]        I also note that s. 9.1(1) of the PCAA provides that a person caring for an animal must protect the animal from circumstances likely to cause, and I underline those words, the animal distress.  However, it must be remembered that Ms. McAnerin was not specifically charged with breaching that particular duty.  She is charged with causing or preventing the animals to be, or continue to be, in distress.

[80]        For both charges, I want to say at the outset that it is clear Ms. McAnerin was responsible for the animals' care.  Ms. McAnerin admitted to owning the three dogs and to caring for the cats, albeit temporarily.  Insofar as the dogs are concerned, there is no doubt Ms. McAnerin had those dogs living in her vehicle for periods of time. 

[81]        There is a discrepancy between the evidence of Ms. Dionne and Ms. McAnerin as to the amount of care these dogs received while in the vehicle.  Ms. Dionne said that Ms. McAnerin really only tended to the dogs twice a day, at 6:00 p.m. and midnight.  Ms. McAnerin said she tended the animals at least four times per day. 

[82]        I must engage in a W.D. analysis when analyzing the credibility and reliability of the witnesses on this issue.  I found Ms. McAnerin to be a less than reliable witness.  She coloured her past dealings with the SPCA and she admitted to memory gaps.  She also fudged her evidence about how she came to have the kittens.  At first they were said to be feral, or dropped off at the park, but she later said she got them from a Vietnamese store.

[83]        Although I found Ms. Dionne to be a more reliable witness, she was not always aware of Ms. McAnerin's whereabouts.  Ms. McAnerin sometimes drove her vehicle away and she may have tended to the dogs when Ms. Dionne was sleeping.  Ms. Dionne also never actually saw the dogs in the vehicle.

[84]        Accordingly, I am going to adopt the evidence most favourable to the accused.  I am accepting that Ms. McAnerin tended to her animals approximately four times per day and that the dogs may have not lived in the vehicle all day long for the four to five days.

[85]        I have a reasonable doubt about Ms. McAnerin depriving her dogs of food and water.  She asserts she tended to the dogs four times a day, and moreover, the dogs were not found to be dehydrated or malnourished.  Chance was underweight, but that could have been due to his advanced age.  I appreciate that Dr. Walton testified that water should always be readily available for the dogs, and I will say at this juncture that I found him to be a knowledgeable, objective and an unbiased witness.  However, Dr. Walton also said in cross that he would be comfortable with the dogs having water at intervals.  The provision of water for the dogs in a vehicle was far from ideal.  It was not even good.  However, assuming Ms. McAnerin tended to the animals regularly, I have a reasonable doubt about the provision of water being inadequate so as to cause distress.

[86]        I also have a reasonable doubt that Ms. McAnerin deprived Bones of veterinary treatment such that it amounted to distress.  Bones had a longstanding history of seizures, but according to Ms. McAnerin, he had not had a seizure for many months.  Bones also had a growth on his rectum for some time and it appeared to be benign.  The lack of veterinary care for Bones did not result in any distress.  Ms. McAnerin's inability to comply with the SPCA demand for immediate veterinary treatment did not place Bones at greater risk for seizure or cancerous growth, at least in the short term.

[87]        I also have a reasonable doubt about Ms. McAnerin not protecting the dogs from excessive heat or cold.  A vehicle is far from an ideal living area for three dogs, but the dogs did have blankets available.  Despite the colder outdoor temperatures, the SPCA officer said that the air that came from the vehicle was warm, though odious. 

[88]        Having said all the above, I am satisfied beyond a reasonable doubt that the three dogs were deprived of adequate space in the vehicle and that the vehicle's condition was unsanitary.  It is certainly possible for three dogs to be adequately housed in a vehicle for short periods, but that did not occur here.  Even by Ms. McAnerin's own admission, Bones was secured by a choke chain to the inside of a crate during one day.  Bones' movement was severely restricted.  Dr. Walton said that the chaining of Bones was egregious, and I find that Bones was in distress for that reason alone.  Furthermore, Bones and Cooch ought not to have been placed in one crate designed for a single dog.  Even the Collie had restricted movements, as it was tied near the other two dogs.  I have no doubt that this space for the dogs, even for a relatively short period, was wholly inadequate and caused the animals to be in distress.

[89]        As to the defence of due diligence, I find that Ms. McAnerin did not take reasonable care to ensure these dogs had proper space to live in the vehicle.  The chaining up of Bones so that he could barely move his head was simply unacceptable.  Even Ms. McAnerin agreed in cross-examination that she could have better placed the dogs in the vehicle on February 28th, 2012.

[90]        The vehicle was also unsanitary.  The air in the vehicle smelled strongly of ammonia and the dogs initially presented as being itchy.  Also, according to the photographs and the SPCA officers' evidence, the interior of the vehicle was full of debris.  Again, as to the defence of due diligence, I find that Ms. McAnerin did not take reasonable care to ensure the vehicle was free of debris and foul odours.

[91]        In summary, I am satisfied beyond a reasonable doubt that Ms. McAnerin caused her dogs to be in distress by depriving them of adequate and sanitary space in her vehicle.  The dogs were in distress due to these conditions, but they were certainly not in critical distress.  Ms. McAnerin undoubtedly loved these dogs, but she was unable to reasonably care for these dogs by providing the proper space and clean living conditions required. 

[92]        The cats were not assessed by a veterinarian so I have no expert evidence about their medical condition.  I have a reasonable doubt about the cats being deprived of food and water in the trailer.  Food was evident, and the cats did not show signs of dehydration.  Ms. McAnerin's absence from the trailer was far from ideal, but she did leave them food and she said she left water in the sink and in a bowl.  It is possible the water was just fully consumed prior to the search warrant being executed.

[93]         However, I am satisfied beyond a reasonable doubt that the cats were in unsanitary conditions and there was inadequate ventilation and space in the trailer.  The trailer reeked of ammonia and made one of the SPCA officers feel sick.  At the time the warrant was executed, the trailer windows were shut and the fan was not on.  The photographs of the trailer really describe the situation better than I could.  There was a great deal of fecal matter and the trailer was full of debris, with objects in precarious positions.  I should say that I do not accept that the SPCA trashed the trailer. 

[94]        Ms. McAnerin cannot succeed with a defence of due diligence respecting these concerns about the trailer.  I appreciate she is a woman of very modest means, but she did not take reasonable care to ensure the trailer was relatively clean and safe for the felines.  By her own account, she was some distance away from the trailer for as long as four to five days.  There is a significant distance between Maple Ridge and Lake Errock.  I appreciate that she had taken in these cats "temporarily," but overall, she had neither the resources nor the ability to care for a total of seven animals in two distinct places.

[95]        In summary, I am satisfied beyond a reasonable doubt that Ms. McAnerin caused her cats to be in distress by depriving them of adequate ventilation, space and sanitary conditions.

[96]        Some concern has been expressed about the actions taken by the SPCA and Ms. McAnerin feels there was a "rush to justice" here because of her prior history with the SPCA.  In my view, the SPCA has not unfairly targeted Ms. McAnerin.  The officers acted in good faith in response to a complaint made by a third party.  The original Information was sworn over a year after the incidents of February 2012, but the Crown has the responsibility for laying the charges and their own reasons for any delay. 

[97]        Based on my findings, the SPCA officers may have placed undue focus on lack of veterinary care, but these animals were in distress for the reasons I provided above.  The SPCA may have also dealt with Ms. McAnerin in a more abrupt fashion due to the previous history, but their priority was the wellbeing of her animals.  I cannot find animus on their part.

[98]        In conclusion, Ms. McAnerin, I find you guilty of Count 1 and Count 2 under Information 79286-1; however, I would add that the Crown had not proven certain allegations with respect to inadequate food and water in particular.  

[99]        Those are my reasons.