IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Leialoha May Scott (“Ms. Scott”) is charged under Count 1 of Information 26177-1 with causing or allowing horses for which she was responsible to be or continue to be in distress contrary to s. 24(1) of the Prevention of Cruelty to Animals Act, R.S.B.C. 1996, c. 372 (the "PCA Act"). This offence is alleged to have occurred between September 17, 2013 and September 5, 2014 at or near Quesnel, B.C.

[2]           Information 26177-1 is a two count information which also charged Ms. Scott’s ex-husband, Stephen Richard Scott, with causing or allowing horses for which he was responsible to be or continue to be in distress contrary to s. 24(1) of the PCA Act, albeit with respect to a different date range. Mr. Scott died before the trial commenced so the charge against him abated. Mr. and Ms. Scott were not jointly charged under either count.

[3]           The Crown alleges the following horses were in distress:

[4]           At the material time the four horses were sometimes kept on Mr. and Ms. Scott’s 13 acre property at 5019 Browning Road, Quesnel, B.C. and sometimes on the neighbouring property.

[5]           Ms. Scott is charged with a strict liability offence. The Crown bears the burden of proving beyond a reasonable doubt that Ms. Scott was a person responsible for the horses alleged to have been in distress and that she caused or allowed them to be or continue to be in distress. There is no need for the Crown to prove criminal intent. Once the Crown has proved the wrongful act, Ms. Scott has the opportunity to raise a defence of due diligence on a balance of probabilities.

[6]           The Crown does not allege Ms. Scott caused the horses to be in distress, only that she allowed them to continue to be in distress.

[7]           On September 17, 2013, Constable Edge of the British Columbia Society for the Prevention of Cruelty to Animals (BC SPCA) attended 5019 Browning Road, to investigate the well-being of Rosie and Handsome. She had seen them incidentally 12 days earlier and considered them emaciated. Constable Edge’s arrival at 5019 Browning Road coincided with that of Dr. Ginger Langan, a local veterinarian who Ms. Scott had retained to investigate why Rosie and Handsome were underweight. On that date, Constable Edge made a number of orders with which Ms. Scott complied.

[8]           On August 31, 2014, Constable Edge issued both Mr. and Ms. Scott a Notice of Distress for their entire herd of horses. She gave them 48 hours to comply with a number of directives, including engaging the services of a veterinarian to examine Rosie, Kelly, Handsome and Bella, and to follow the veterinarian’s advice, even if it included euthanasia. Rosie and Kelly were old and foundered. Bella was born with an angular deformity to her right front leg and Handsome had a pronounced umbilical hernia.

[9]           On September 5, 2014, Constable Edge attended at 5019 Browning Road with Dr. Langan and another BC SPCA officer. Constable Edge seized Handsome. Dr. Langan and the BC SPCA officers assessed Rosie, Kelly and Bella to be in critical distress and Constable Edge had them euthanized. On August 5, 2015, Ms. Scott and Mr. Scott where charged with the offences before the Court. The Crown had the charges against Mr. Scott abated when it learned he died the previous year. The Crown now asserts that Ms. Scott is the person responsible for all the horses in issue, including those owned by Mr. Scott at the offence date.

[10]        The evidence in this case raises the following:

[11]        The trial proceeds over seven days on March 3 and August 26, 2016, and January 11, January 12, May 31, June 1 and June 2, 2017. The Crown called the following witnesses:

[12]        The Crown tendered into evidence the following three exhibits:

[13]        After a voluntariness voir dire, the Defence agreed Ms. Scott’s various statements to Constable Edge were voluntary. By consent, all the evidence on the voluntariness voir dire was admitted as evidence in the trial proper. None of Ms. Scott’s conversations with Constable Edge were audio or video recorded. The fact the defence acknowledges Ms. Scott’s conversations with Constable Edge were voluntary does not mean it is clear what it is Ms. Scott said, to whom it was said and when she said it.

[14]        The Defence called two witnesses:

[15]        Both Dr. Langan and Mr. MacNaughton were eye witnesses as well as expert witnesses.

[16]        After Ms. Scott and Mr. McNaughton testified, I invited the Crown to recall Dr. Langan after to address the lack of confrontation with respect to a number of issues raised by the defence. The Crown declined to do so.

[17]        The Crown did not tender the following documents into evidence at trial:

[18]        The Crown and defence referred to R. v. Chrysler, 2013 BCPC 240 (CanLII), 2013 BCPC 0240 and R. v. Fountain, 2013 BCPC 193. I have reviewed and considered these cases as well as the authorities referenced in those decisions.

[19]        The Crown has asserted that Ms. Scott failed to properly care for her horses in multiple ways, including depriving them of adequate food, water, shelter, pasture, general horse care and veterinarian treatment and through neglect, allowed them to continue to be sick, in pain and suffering. This requires me to assess extensive evidence issue-by-issue, which unfortunately results in a lengthy judgment.

[20]        On June 30, 2017, I provided an oral judgment to the Crown and Defence counsel. Ms. Scott was ill and asked that Mr. Thomson appear as her counsel and agent in her absence. On that date, I presented my oral judgment and indicated to counsel I would provide a formal written decision the following week.

[21]        Cases alleging animal cruelty are often highly emotional and hotly disputed. I want to thank counsel who represented the Crown and Ms. Scott for their civility and cooperation. Their professionalism ensured the truth-seeking function of this trial remained paramount. 

[22]        Ms. Scott is 59 years old and of aboriginal and Irish descent. She grew up in rural Prince George and has been around horses since she was five years old. She got a job and bought her first horse when she was 12. She learned horse husbandry from her aboriginal father and others; she learned holistic remedies for horse health from her great grandmother.

[23]        In 2004, Mr. and Ms. Scott purchased a residence on 13 acres at 5019 Browning Road, which is a 10 to 15 minute drive northeast of Quesnel, B.C. In 2005 Ms. Scott acquired a mare named Hope and Mr. Scott acquired a mare named Kelly. They moved both horses onto the 5019 Browning Road acreage.

[24]        The acreage at 5019 Browning Road neighboured a farm owned by Joe Kopetski.

[25]        Mr. Kopetski, a farmer and long-time horse owner, boarded horses and produced hay on his farm. The Scotts purchased hay from Mr. Kopetski. The Scott herd grazed on Mr. Kopetski’s pasture and from time to time, the Scotts boarded their horses at Mr. Kopetski’s farm.

[26]        Over the years, the Scotts increased the number of horses kept at 5019 Browning Road, some of which belonged to their niece and adult children. By the summer of 2013, the Scotts had eight horses, including Rosie’s foal Handsome. By the summer of 2014, with the birth of Kelly’s foal, Bella, the herd increased to nine.

[27]        In early 2013, Mr. and Ms. Scott separated. Ms. Scott remained at 5019 Browning Road, with her four grandchildren. Mr. Scott moved elsewhere.

[28]        While living at 5019 Browning Road, both before and after her separation from Mr. Scott, Ms. Scott assumed responsibility for feeding and watering all the horses on the property. She performed these chores until her residence at 5019 Browning Road burned down in November 2013. Ms. Scott moved into a residence in West Quesnel with her four grandchildren. After that calamity, Mr. and Ms. Scott took turns caring for the horses.

[29]        From November 2013 to June 2014, the Scott horses were boarded at the neighbouring farm owned by Joe Kopetski. It is unclear who was principally responsible for the Scott horses while they were boarded at Mr. Kopetski’s farm. There is, however, uncontested evidence that Mr. Kopetski arranged for Mr. MacNaughton to provide farrier services to all the horses on the property, including those owned by Mr. and Ms. Scott. Mr. MacNaughton attended the Kopetski farm every three months. The Scotts paid Mr. Kopetski for the farrier services which Mr. MacNaughton provided to their horses.

[30]        In June of 2014, the Scotts returned their horses to 5019 Browning Road. With the birth of Bella, sometime in late June or early July, the Scott herd numbered nine. By the summer of 2014, the Scotts had the following horses pastured at 5019 Browning Road:

[31]        The Scott horses were not performance horses. They were trail horses used for light riding and were considered and treated as pets and companions.

[32]        Over the years, the Scotts engaged a number of different veterinarians and farriers for their horses. Ms. Scott testified the herd were serviced by a farrier every six to eight weeks and named the farriers the Scotts had retained over the years. In 2013 Charlie Stonehouse and Rick McNaughton provided those services.

[33]        The Scotts retained veterinarians to examine and treat their horses when they saw the medical necessity to do so. Dr. Langan had attended and treated the Scott horses at 5019 Browning Road and at Kopetski’s farm at various times since 2007. Dr. Wilson also provided the Scotts with veterinarian services.

[34]        Ms. Scott said that she dewormed the horses two or three times per year and tirelessly scraped bot eggs from their legs. She also regularly brushed their fur.

[35]        Ms. Scott believes she acquired Rosie in the fall of 2011; however, Dr. Langan recalls meeting Rosie in October 2010, when she performed surgery on her left hind leg for proud flesh (an overgrowth of granulation tissue). Dr. Langan treated it with medication, managing, and removed the large mass.

[36]        Rosie was a former jumping horse from Vancouver which had been gifted to Ms. Scott. Rosie’s previous owner no longer wanted Rosie because Rosie didn’t like males and could only be ridden English style. Other than these attributes, Ms. Scott considered Rosie to be in good health, although she was always thin because she was a thoroughbred and that was her natural physique. Also, her feet seemed to grow quickly and she required regular attention from the farrier.

[37]        Rosie was impregnated by a stallion in Mr. Kopetski’s pasture and her health deteriorated. In June of 2013, Rosie gave birth to Handsome.

[38]        The day after Handsome was born Ms. Scott arranged for a local veterinarian, Dr. Wilson, to examine Rosie because one of her feet seemed foundered. Ms. Scott says Dr. Wilson told her Rosie’s coffin bone in her foot had started to rotate and would continue to do so. As founder is progressive, Rosie would eventually have to be put down. At the same time Dr. Wilson was examining Rosie, Ms. Scott’s farrier attended to trim Rosie’s hooves and rasped Handsome’s hooves for the first time.

[39]        After Handsome was born, Rosie began to lose a lot of weight. Rosie was unable to produce sufficient milk for Handsome, who consequently failed to thrive. Ms. Scott believed that by the time he was three months old, Handsome ought to have been 50 percent larger than he was. She arranged for Dr. Ginger Langan to examine Rosie. At that time, Ms. Scott had no concerns with respect to the rest of the herd.

[40]        On September 17, 2013, Constable Edge, a Special Provincial Constable for the BC SPCA, attended at 5019 Browning Road to investigate an emaciated looking bay mare and her foal she had observed incidentally on September 5, 2013.

[41]        When she arrived at 5019 Browning Road on September 17, 2013, Constable Edge encountered Ms. Scott, who identified herself as Rosie and Handsome’s owner. Rosie and Handsome were isolated in a paddock with access to a large round bale of hay. While at 5019 Browning Road, Constable Edge met Dr. Ginger Langan for the first time. Ms. Scott had arranged for Dr. Langan to examine Rosie and Handsome to try and determine why they were so underweight.

[42]        Constable Edge took photographs of Rosie and Handsome in the paddock: Exhibit 1, pp. 102-103, photos: DCF0063 - DCF0066. Based on her observations, Constable Edge assessed Rosie and Handsome as underweight according to the Henneke body condition scoring system used to assess a horse’s body weight. She scored Rosie at one and one-half and Handsome as two.

[43]        On September 17, 2013, after a brief visit, Constable Edge issued BC SPCA Order 016712 directing Ms. Scott to take the following steps with respect to Rosie and Handsome within seven days:

[44]        BC SPCA Order 016712 was a form on which Constable Edge wrote Ms. Scott’s name and the description of the animals of concern, namely “Bay Mare 21 yrs 3 month colt.” The form included a number of preprinted orders for the officer to tick-off under the heading: "Pursuant to the Provincial Cruelty to Animals Act you are hereby ordered to:” The Crown tendered BC SPCA Order 016712 as part of Exhibit 2 at trial.

[45]        Constable Edge explained her reasons for checking off the boxes she did on BC SPCA Order 016712 , as follows:

[46]        Constable Edge then went on to say she always ticks off the first three items on such an order.

[47]        At the bottom of the form was a space set apart for “comments” and a preprinted warning that:

[48]        At the bottom of the Order 016712, Constable Edge provided her name and a telephone number where she could be reached.

[49]        Under the section entitled “Complaint” on BC SPCA Order 016712, Constable Edge wrote: “underweight.” There is no mention in BC SPCA Order 016712 of founder, laminitis, abscesses or umbilical hernia. There was no specific direction that Ms. Scott have a farrier attend to the horses within a short period of time.

[50]        At the time Constable Edge issued BC SPCA Order 016712 Dr. Langan was actually present at 5019 Browning Road at Ms. Scott’s request. Constable Edge said she kept her interactions with Ms. Scott on September 17, 2013, brief because she didn’t want to interfere with Dr. Langan. Before Constable Edge left, Ms. Scott agreed to contact her and let her know the outcome of Dr. Langan’s visit.

[51]        Dr. Langan first examined Rosie on September 17, 2013. She testified the major concern at the time was to put some weight on Rosie and nutrition into her foal. Dr. Langan acknowledged that thoroughbreds do not keep their weight very well at the best of times and this was especially true when the mare had just foaled out. Ms. Scott and Dr. Langan were concerned about Rosie’s teeth because bad teeth are a common cause of a horse to lose weight. Dr. Langan’s examination indicated that Rosie’s teeth were not the cause of her poor body condition. Dr. Langan recommended Ms. Scott provide Rosie and Handsome with nutritional supplements.

[52]        Either one or both of Dr. Langan or Constable Edge raised with Ms. Scott the possibility the hay she was feeding Rosie was of poor nutritional value. Apparently the local hay crops in 2013 and/or 2014 were compromised nutritionally because of excessive rain. Although she did not arrange for an analysis of the Scott’s hay supply, Dr. Langan was aware that in general 2013 local hay crop had poor nutritional value. Dr. Langan acknowledged that Ms. Scott would not have been aware of this deficiency. Dr. Langan conceded with what she knew, Ms. Scott was “doing the best she could.”

[53]        The Scotts purchased their hay from Joe Kopetski, which fed their entire herd, including Rosie. Although the other horses were not suffering, Ms. Scott accepted the advice she received about the impoverished hay, returned it to Mr. Kopetski’s and sourced out a different supplier. Thereafter the Scotts obtained their hay from Blackwater and Bouchie Lake area near Quesnel. Ms. Scott said she “lost a neighbour” because of this incident and Mr. Kopetski had to sell the rejected hay to someone else for less money.

[54]        On September 18, 2013, Ms. Scott contacted Constable Edge confirming that Rosie and Handsome were under Dr. Langan’s care and that Dr. Langan was going to arrange some blood tests to investigate why Rosie was so thin. In the interim, Ms. Scott began bottle feeding Handsome goat’s milk and continued Rosie on the beet pulp supplements she had started prior to consulting with Dr. Langan.

[55]        On September 23, 2013, Ms. Scott called Constable Edge and confirmed she had obtained a better quality of hay and that Dr. Langan was sending Rosie’s blood samples to the animal disease diagnostic laboratory in Pullman, Washington to investigate the source of the abscessing in Rosie’s feet. Ms. Scott also assured Constable Edge she was following the feeding options Dr. Langan had recommended.

[56]        Dr. Langan ordered the blood tests Ms. Scott authorized. These were conducted on September 22, 2013, and on September 27, 2013, Dr. Langan discussed the protein electrophoresis test results with Ms. Scott. She advised Ms. Scott the test indicated Rosie had an infection. Ms. Scott understood from this conversations that Rosie was infected with a parasite she caught from the stallion who impregnated her. Dr. Langan, however, concluded that in the fall of 2013, Rosie was suffering from abscessed hooves, founder and chronic inflammation caused by infection. She attributed Rosie’s chronic inflammation primarily to founder and secondarily to sole abscesses. Dr. Langan did not know at that time if Rosie’s P3 had begun to rotate.

[57]        I understand from the evidence of Dr. Langan, Ms. Scott and Mr. MacNaughton that sole abscesses can be the result of founder or laminitis or navicular or the intrusion of a foreign object, such as a pebble, into the horse’s foot.

[58]        Dr. Langan opined that in the fall of 2013, Rosie was likely in pain, but the treatment for her condition was anti-inflammatories, which would have caused gastric ulcers in her nursing foal. Nevertheless, she did prescribe Rosie some anti-inflammatories albeit not the amount she needed because of the adverse impact of this medication on the nursing foal.

[59]        Ms. Scott testified she purchased for and administered to Rosie all the Bute Dr. Langan had prescribed. I understand Bute is an equine anti-inflammatory and pain killer. Because she could give Rosie Bute for only a limited period, Ms. Scott also gave Rosie willow bark as an herbal remedy for pain relief.

[60]        Dr. Langan testified that treating a horse with Rosie’s afflictions was a huge job. It required daily medication, daily poultices on the feet, farrier services every four to six weeks and sometimes special shoes. It is expensive, in excess of $2400 per year just for farrier costs. In addition, there would be costs for antibiotics and anti-inflammatories. Even then the treatment can be unsuccessful. The alternative is euthanasia. Dr. Langan said:

[61]        In the fall and winter of 2013, Ms. Scott attended at Dr. Langan’s office to obtain antibiotics for Rosie. While there, Ms. Scott reported to Dr. Langan she had obtained some foal supplements and Handsome was doing well. Ms. Scott obtained a second course of antibiotics for Rosie later that year. Ms. Scott testified that she gave Rosie all the antibiotics Dr. Langan prescribed. Dr. Langan was not able to say whether Rosie would have required any additional antibiotics.

[62]        Ms. Scott said that she did attend to Rosie’s hoof care on a daily basis. She irrigated the abscesses, kept the hooves clean and dry and applied poultices. Nevertheless, Rosie’s feet deteriorated. It came to a point where Rosie would not allow a farrier to trim her feet. So this is something Ms. Scott did herself when Rosie was laying down. Ms. Scott said Rosie’s feet “didn’t look pretty” but they were trimmed back and rasped.

[63]        Constable Edge returned to 5019 Browning Road on October 2, 2013, at which time she observed that Rosie and Handsome were still in the paddock and had access to grain, water and a better quality of hay. Ms. Scott was providing Rosie and Handsome the mixture of feed Dr. Langan had recommended. During this visit, Ms. Scott told Constable Edge that Dr. Langan had not “floated” (filed Rosie’s teeth) because she had a heart murmur and she could not be tranquilized.

[64]        Constable Edge testified that during this October 2, 2013 visit, she walked into the paddock where Rosie and Handsome were housed. She noted some debris, which she described as “some cans and some garbage and stuff within the paddock” and discussed with Ms. Scott the need to remove the debris. Constable Edge took photographs of Rosie and Handsome and their environs on October 2, 2013: Exhibit 1, pp.104-07, photos DSCF0084-DSCF0088. None of the photographs Constable Edge took on September 17, October 2 or October 16, 2013, depict any significant or hazardous debris in the paddock: Exhibit 1, pp. 101-09.

[65]        Constable Edge congratulated Ms. Scott and was “really happy with what was happening.” Constable Edge also testified in her examination-in-chief, she believed Ms. Scott had complied with her September 17, 2013 BC SPCA Order 016712. Nevertheless, on October 16, 2013, Constable Edge again attended at 5019 Browning Road to see how things were progressing with Rosie and Handsome and to make sure they were on track. This was only a five minute visit. At the time Ms. Scott advised Constable Edge her neighbour was going to assist in providing shelter for Rosie and Handsome.

[66]        Constable Edge’s photographs taken on October 16, 2013, do not show anything in the paddock beyond Rosie, Handsome, grass and hay. The water buckets are accessible at the fence line: Exhibit 1, p.109, DSCF0102- DSCF0103.

[67]        None of the photographs Constable Edge took in 2013 are of Rosie’s feet or Handsome’s hernia: Exhibit 1, pp. 101-109.

[68]        On November 7, 2013, Constable Edge again attended at 5019 Browning Road; she also spoke to Ms. Scott on the telephone. Ms. Scott told her Rosie and Handsome were gaining weight and their condition improving. Constable Edge observed Rosie and Handsome were feeding on grain. Constable Edge testified she had concerns about Rosie’s pain from her foot abscesses and Handsome’s hernia and wormy belly, but took no further action because the horses were under Dr. Langan’s care. She noted Rosie looked a little better. Ms. Scott told Constable Edge she was deworming Handsome and discussing pain management options for Rosie with the veterinarian. Ms. Scott wanted to wait until Handsome was weaned before giving Rosie more pain medication. Constable Edge commended Ms. Scott on the amount of grain she was feeding Rosie and Handsome, how she was going about it and the fact she had implemented a good plan.

[69]        Constable Edge said that between September and December 2013, Ms. Scott was very good at keeping in touch with her and updating her on the horses ongoing veterinarian care. In December Constable Edge went again to 5019 Browning Road and discovered the residence had burned down and there were no horses on the property.

[70]        On December 19, 2013, Ms. Scott received a call from Joe Kopetski. He told her that he thought Rosie had caught a cold and describe the symptoms. By his description, Ms. Scott feared he had given Rosie her beet pulp supplements without first soaking them in water to ensure they expanded prior to Rosie ingesting them. Ms. Scott called Dr. Langan who attended at the Kopetski farm and relieved Rosie’s distress. Exhibit 3 is Dr. Langan’s invoice for $442.44 with respect to these services.

[71]        Constable Edge testified she contacted Doctor Langan in December 2013. Dr. Langan claimed she had not heard from and had lost contact with Ms. Scott.

[72]        Ms. Scott did not seek any further veterinarian care for Rosie after December 19, 2013. Instead, she treated Rosie with her homeopathic remedies and had a farrier trim her hooves until Rosie refused to cooperate. After that, Ms. Scott tended to them herself.

[73]        Dr. Langan describes Handsome when she first saw him on September 17, 2013, as “bright and alert” and “a normal-looking foal except for he was thin because his mom wasn`t producing enough milk for him.”

[74]        After September 17, 2013, Handsome gained weight and prospered on the nutritional supplements Ms. Scott provided.

[75]        Handsome also developed a hernia. Dr. Langan described this as an umbilical hernia formed as a result of a congenital defect. The hernia was a hole in Handsome’s belly. It was ordinarily painless unless a piece of gut slipped into it, but that was rare. This defect can seal over naturally unless it is fairly large, as in Handsome’s case. ­Dr. Langan testified that generally a veterinarian will want to try and fix a hernia when the foal is around six months. By this age, the foal’s liver and kidneys have sufficiently matured to handle the drugs necessary in the operation. As the horse gets bigger, the surgery becomes more complicated because the horse needs to be anesthetized and the veterinarian has only 30 minutes with their injectable medications to keep them down. And the bigger they get, the harder it is to keep them down, and the greater the risk of complications with the surgery.

[76]        Ms. Scott did not notice Handsome’s hernia when he was born. She believes it developed in the spring of 2014 as result of Handsome running with the herd while stabled at Joe Kopetski’s farm. Ms. Scott said she asked Mr. Kopetski to place Rosie and Handsome in a separate pen, but this didn't happen right away. Ms. Scott believes Handsome’s hernia was caused by pressure from running.

[77]        Ms. Scott used manual manipulation to encourage the hernia to heal on its own. She believed this would gradually reduce the hernia naturally and obviate the need for surgery.

[78]        Constable Edge testified that she noticed Handsome’s hernia on September 17, 2013, when she first went to 5019 Browning Road. She described it as being about the size of a dollar coin. She claims she told Ms. Scott at that time it should be rectified fairly quickly because it would enlarge. There is no mention of a hernia in Constable Edge’s BC SPCA Order 016712 nor is it depicted in her photographs taken in 2013: Exhibit 1, pp. 101-109.

[79]        I accept that Handsome did have the umbilical hernia since birth. As he grew, so did his hernia and by September 2014, it was the size of Dr. Langan’s fist. Dr. Langan gave the following evidence about Handsome’s hernia:

[80]        Ms. Scott maintains Handsome’s hernia was not visible in September 2013, and denies having any discussion about hernia surgery with Dr. Langan at that time. She says it was not until late August 2014 that she discussed Handsome’s hernia with Dr. Langan, who quoted her $1,300 for the surgery. Also, Ms. Scott would have to transport Handsome to a different location for post-operative care, which was a barn down the Quesnel-Hixon road and would cost $400. Ms. Scott says this was the only discussion she had with Dr. Langan about repairing Handsome’s hernia.

[81]        Constable Edge was of the view Handsome’s hernia could have been rectified at birth. This of course, contradicts Dr. Langan’s opinion that the surgery was best performed at six months when the foal’s liver and kidneys are sufficiently mature to handle the drugs the veterinarian needs to give him to perform the surgery.

[82]        Constable Edge described Handsome’s hernia on September 5, 2014 as large, and potentially fatal if it burst. She considered Handsome in distress, but not critical distress.

[83]        On September 7, 2014, Ms. Scott attended at the Quesnel shelter and signed a document surrendering Handsome to the BC SPCA. No documentation was entered into evidence with respect to this event.

[84]        Dr. Wilson performed the hernia surgery on Handsome sometime after September 7, 2014, and Handsome was “rehomed.”

[85]        Mr. Scott acquired Kelly in 2005 for light riding. At the time, Kelly was five years old. Mr. and Ms. Scott knew Kelly had bad feet from the outset. Kelly appeared pigeon-toed and when her feet grew they flattened right away. The Scotts kept Kelly’s feet straight with regular farriering. They also provided Kelly with Hoffman’s mineral supplements to build up her hoofs and applied pine tar to keep them moist. Ms. Scott says that Mr. Scott rode Kelly bareback for two summers on riding trails which were easier on her feet. Kelly always sauntered like a turtle and refused to accept a lead from anyone other than Mr. and Ms. Scott.

[86]        Dr. Langan believes she first saw Kelly in 2007 when the Scotts called her to attend at 5019 Browning Road to relieve Kelly from choking. Dr. Langan said Kelly recovered well from that incident and she did not see Kelly again until August 12, 2014.

[87]        When Constable Edge attended at 5019 Browning Road on September 17, 2013, Kelly was not on the property (nor obviously Bella who was born in the summer of 2014). Constable Edge says she was only dealing with Rosie and Handsome at that time.

[88]        Dr. Langan said when she attended 5019 Browning Road in September 2013, Kelly was out in the pasture. She did not examine Kelly and did not remember her.

[89]        The Scotts moved their herd to Joe Kopetski’s farm after their residence burned in November 2013. The herd returned to 5019 Browning Road in June 2014, and later that month or in early July 2014, Kelly gave birth to Bella. Ms. Scott describes Bella as a perfectly healthy little foal, but shortly after birth, she showed signs of an angular limb deformity to her front right leg. Dr. Langan testified that this condition occurs sporadically in new-born foals. The Scotts tried wrapping Bella’s knee joint hoping it would straighten naturally, but Bella would not cooperate.

[90]        Ms. Scott asked Dr. Langan to examine Bella’s right front leg which was exhibiting the angular deformity. On August 12, 2014, Dr. Langan stopped by 5019 Browning Road in Ms. Scott’s absence and conducted a “distance assessment” of Bella. Dr. Langan telephoned Ms. Scott later that day and told her a brace would likely not suffice and that Bella would require surgery to straighten her leg.

[91]        Dr. Langan considered Bella’s angular limb deformity as severe. Surgery would likely be required to correct the limb ‑ ideally by the time Bella was eight weeks. When Dr. Langan saw her on August 12, 2014, Bella was too young for surgery. Also, Bella would require a pre-operative x-ray to determine whether the condition could be corrected with casts.

[92]        Dr. Langan testified that Bella was not in any pain as a result of this deformity. Had it been left uncorrected, Bella may have developed arthritis in the knee joint in six to nine years which would cause her pain. Dr. Langan told Ms. Scott what could be done to straight Bella’s leg and if nothing was done, then the foal should probably be put down.

[93]        Ms. Scott told Dr. Langan on August 12, 2014, that she would look into financing Bella’s surgery. As Dr. Langan did not offer her services, Ms. Scott assumed she did not have the time to perform the surgery herself. Moreover, Dr. Langan worked out of her home and did not have her own operating theatre so she had to arrange to perform her surgeries elsewhere.

[94]        Ms. Scott contacted Murdoch Veterinary Clinic in Prince George, B.C. and obtained a quote of $1,300 for Bella’s surgery. She also learned it would cost $1,200 to transport Bella and Kelly to and from the Prince George clinic. Kelly had to accompany Bella because Bella was still nursing.

[95]        Ms. Scott intended to have Bella undergo the operation as soon as it could be arranged and financed.

[96]        While at 5019 Browning Road on August 12, 2014, Dr. Langan said she spoke to “someone” (not Ms. Scott) about euthanizing Kelly. This unidentified person told Dr. Langan he wasn’t going to euthanize Kelly because the foal was only one-month old. Dr. Langan agreed that to euthanize Kelly was to kill her foal. She then backtracked and said, “Well, if you want to get really technical about it, I had no advice for that horse except you need to deal with the horse.” She did not examine Kelly that day because that is not what was asked of her. When specifically asked, whether she told Ms. Scott that Kelly needed to be euthanized, Dr. Langan said, “I am not sure.” Later Dr. Langan said that as of August 12, 2014 she “hadn't made any decisions on Kelly because we had not examined her or come up with a treatment program.”

[97]        On August 29, 2014, Constable Edge was investigating a complaint by the Brand inspector of eight horses loose on Browning Road. Because of their location and description, Constable Edge suspected these horses belonged to the Scotts. Constable Edge contacted Dr. Langan who confirmed she had been to the Scott property earlier that month and the horses she described did belong to Ms. Scott. Constable Edge testified that based on the information she received from Doctor Langan about her recent observations, she determined that the horses did not fall under the critical distress protocol within the PCA Act, and therefore did not require the BC SPCA’s immediate intervention.

[98]        Constable Edge advised both the Brand Inspector and the RCMP that the Scott horses on August 29, 2014 were not in “critical distress.” She asked the Brand Inspector to contain the escaped horses to ensure their safety.

[99]        On August 30, 2014, Constable Edge asked the manager of the BC SPCA Quesnel shelter to attend 5019 Browning Road and post a notice to the field gate asking the horse owner to contact her immediately. Later that day, Ms. Scott received the BC SPCA notice and contacted Constable Edge. Ms. Scott confirmed the escaped horses belonged to her and her ex-husband and the bay mare and bay colt were the same horses she observed at 5019 Browning Road in September 2013. This was a brief conversation during which Ms. Scott updated Constable Edge on activities since December 2013. She confirmed that she had the funds and intention to proceed with Handsome’s hernia operation.

[100]     Constable Edge arranged to meet with Ms. Scott in person at 5019 Browning Road at 1:30 p.m. on August 31, 2014.

[101]     On August 31, 2014, BC SPCA Constables Edge and Jamie Wiltse attended at 5019 Browning Road with Sarah Steeves, a shelter worker with BC SPCA in Quesnel. Ms. Scott invited the BC SPCA Constables on to the property and consented to their conducting a herd inspection. The Crown did not adduce any written consent into evidence and the Defence did not challenge its voluntariness of Ms. Scott’s consent.

[102]     Constable Edge was at the 5019 Browning Road for about one hour during which time she discussed each of the horses with Ms. Scott. Constable Edge learned that Kelly and Bella belonged to Mr. Scott. Constable Edge observed a number of conditions with respect to the Scott horses and their environs which caused her concern. These concerns were documented in Exhibit 1, pp. 110-128, photos DSC_0103 -DSC_139.

[103]     Constable Edge issued to Ms. Scott, BC SPCA Notice of Distress A1159 with respect to “8 horses including 2 foals” and to Mr. Scott, BC SPCA Notice of Distress A1160 with respect to a “herd 8 horses - Kelly & Foal, Jewel, Chance”. These Notices of Distress were entered a part of Exhibit 2 at trial.

[104]     Notwithstanding the form and content of the Notice of Distress, Constable Edge stated the only horses in distress were Kelly, Bella, Rosie and Handsome. When asked why BC SPCA left the Scotts in possession of all other horses kept at 5019 Browning Road, (namely, Hope, Mana, Jewel, Apache and Chance), Constable Edge stated:

[105]     Constable Edge alleged the following symptoms of physical distress with respect to the four horses in issue:

[106]     With respect to the environs, Constable Edge was concerned about the potential hazard caused by debris associated with the collapsed structure surrounded by mesh fencing (Exhibit 1, pp. 117-120) and binder twine mixed in with the hay (Exhibit 1, p. 126, DSC_0134- DSC_0135).

[107]     By August 31, 2014, the BC SPCA had changed its form of orders from those used in 2013. Now they referred to the orders as a “Notice of Distress.”

[108]     On August 31, 2014, Constable Edge issued Notice of Distress Order A1159, directing Ms. Scott to comply with the following orders to relieve the distress to the “8 horses including 2 foals”:

[109]     Constable Edge gave Ms. Scott 48 hours to comply with all these orders except for item number 6 (farrier services), for which Ms. Scott had 14 days to have the horses hooves tended to by a farrier.

[110]     On August 31, 2014, Constable Edge also met and spoke to Mr. Scott. She issued to him Notice of Distress Order A1160, directing Mr. Scott to comply with the following orders to relieve the distress to the “Herd 8 horses - Kelly & Foal, Jewel, Chance”:

[111]     Mr. Scott was given 48 hours to comply with all these orders except for number 6, for which he had 14 days in order to have the horses hoofs tended to by a farrier.

[112]     The collapsed structure of concern is depicted in Exhibit 1, pp.117-120, photographs DSC_0117 to DSC_0122. This was a storage structure originally attached to the Scott residence which burned down. Ms. Scott said at that time she was engaged in a struggle with her insurer to remove the debris. She fenced it off with snow fencing, but the horses continued to push through this fencing to access green grass growing on the perimeter of the debris.

[113]     There is no evidence that any horses were injured as a result of this collapsed structure. Although Dr. Langan noticed some old injuries on some of the Scott horses she inspected on September 5, 2014, these mostly predated the fire which destroyed the Scott residence.

[114]     Upon receiving the BC SPCA Notice of Distress Orders 01159 and 01160, the Scotts decided to euthanize Rosie and Bella and Ms. Scott relayed this information to Constable Edge on September 1, 2014. Shortly after this conversation, Constable Edge spoke with Mr. Scott directly and confirmed this information.

[115]     On or about September 2, 2014, Ms. Scott called Constable Edge and advised her Mr. Scott was too ill to euthanize the horses. Mr. Scott, had just been diagnosed with terminal cancer. As he just received his own death warrant, he is not about to go kill his pets.

[116]     On September 2, 2014, Dr. Langan confirmed Ms. Scott had arranged for her to perform Handsome’s hernia surgery.

[117]     On September 3, 2014, Ms. Scott advised Constable Edge that she was working with her niece who knew an old cowboy who could euthanize the horses on September 3 or 4, 2014.

[118]     On September 4, 2014, Constable Edge contacted the Quesnel BC SPCA shelter and asked a staff member to attend at 5019 Browning Road to see how many horses in the field. On September 5, 2014, Constable Edge learned there were eight horses in the field. This confirmed the Scotts had not euthanized Rosie and Bella as expected. Constable Edge sought and obtained a search warrant and made arrangements for the RCMP, Dr. Langan, haulers and a backhoe operator to assist in euthanizing and burying the horses.

[119]     On September 5, 2014, Constable Edge attended at 5019 Browning Road and observed the herd of eight horses in the field, including Rosie, Handsome, Kelly and Bella. This was the same herd of eight horses she had observed on August 31, 2014. Constable Edge repeatedly referred to eight horses, although at the time, the Scotts had nine horses.

[120]     Constable Edge stapled her warrant to the post of the entrance gate and carried out an inspection of four adult horses. She found overall their body condition was good, but their hooves needed attention. The field had not been cleared of debris, but the horses had water and hay.

[121]     Sara Steeves took photographs on September 5, 2014: Exhibit 1, pp. 129-164.

[122]     Dr. Langan said it was not until she inspected the horses on September 5, 2014 that she determined the horses ought to have been euthanized. She had no consent from the owners of the horses euthanized on September 5, 2014; however, she followed the protocols for animals in distress. Dr. Langan examined the horses to determine whether they were suffering and stated “weighing the economics and the other extenuating circumstances around the situation with those animals, the decision was made that the best option for them was euthanasia, and that was decided with the SPCA Constable.”

[123]     Constable Edge, Dr. Langan and another BC SPCA officer declared Kelly, Rosie and Bella to be in critical distress and Constable Edge ordered the horses euthanized. A Conservation Officer shot the three horses and Constable Edge ordered them buried at 5019 Browning Road.

[124]     No necropsy was ever conducted.

[125]     With respect to the remaining horses, Dr. Langan said some of the horses had old injuries that had healed, some had hooves that had needed attention, but overall their body condition was good. The horses were friendly and good to work around.

[126]     Constable Edge also seized Handsome, but did not have him euthanized.

[127]     Constable Edge left the Scotts with the five remaining horses (Hope, Mana, Chance, Apache and Jewel) because they “did not qualify as being in distress at that time.”

[128]     Constable Edge called Ms. Scott in the evening of September 5, 2014 and informed her of the day’s events. Ms. Scott was very upset to learn the BC SPCA had Rosie and Bella shot and buried at 5019 Browning Road.

[129]     On September 6, 2014, Constable Edge served the Scotts with a copy of the Warrant and Notice of Disposition.

[130]     On September 7, 2014, Ms. Scott telephoned Constable Edge and advised her she had fenced around the burnt house so that the horses couldn't access it and had picked up two garbage barrels of twine. Constable Edge says she was satisfied Ms. Scott was immediately addressing the environmental concerns by picking up the binder twine, fencing off the burned and collapsed house and fixing the fence line where the horses escaped.

[131]     On September 10, 2014, Ms. Scott advised Constable Edge she had arranged for a farrier to attended the following Saturday, that she had concluded all the fencing around the old house, removed string from the pasture and was now using a feeder rather than from the ground. She also told Constable Edge that Jenna was retrieving and relocating her two horses (Jewel and Chance).

[132]     Constable Edge did not return to 5019 Browning Road.

[133]     Mr. Scott died on October 19, 2014. At some point Ms. Scott’s house was rebuilt and she continues to reside on 5019 Browning Road with Hope, Mana and Apache.

[134]     On August 4, 2015, Constable Edge sworn Information 26177-1 charging Mr. and Ms. Scott separately on the two count information. When asked why Ms. Scott was charged from September 17, 2013 to September 5, 2014, and Mr. Scott is only charged from August 31, 2014 to September 5, 2014, Constable Edge offered the following explanation:

[135]     When asked again in cross-examination why Mr. Scott was not charged with any offence prior to August 31, 2014, while Ms. Scott was charged from September 17, 2013, Constable Edge said it was because August 31, 2014, was the first day she saw Kelly and Bella in distress and because she was not aware Mr. Scott owned any horses prior to that date. She said:

[136]     When asked when Mr. Scott resumed ownership of Kelly, Constable Edge said:

[137]     What Constable Edge seem to be saying is that she did not know who owned Kelly (and hence Bella) prior to August 31, 2014. As of August 31, 2014, she knew Mr. Scott owned Kelly and Bella, Jenna owned Jewel and Chance, and that Ms. Scott assisted with the watering and feeding of all the horses.

[138]     Ms. Scott is charged with committing an offence under s. 24(1) that she allowed her horses to continue to be in distress under s. 9.1, which states:

[139]     Section 1 (2) states that for the purposes of the PCA Act, an animal is in distress if it is:

[140]     Section 1 defines person responsible as follows:

[141]     Section 22.1 imposes upon a registered veterinarian, a duty to report distress to the BC SPCA. It reads:

[142]     The Court must interpret the PCA Act consistent with the applicable principles of statutory interpretation in the regulatory context. In Bell Express Vu Limited Partnership v. Rex, 2002 SCC 42 (CanLII), the Supreme Court of Canada held that a contextual approach must be taken to statutory interpretation of regulatory enactments. Courts are to consider the entire context of statutory words and phrases and read them in harmony with the object of the legislation. This relegates some other principles of construction to a subordinate or secondary role and the ‘strict construction of penal statutes’ rule is applied only where there is ambiguity as to the meaning of a provision (see Bell ExpressVu, para 28).

[143]     The following passage from Driedger on the Construction of Statutes, 3^rd ed. (1994) is often cited:

[144]     Also relevant is s. 8 of the Interpretation Act, RSBC 1996, c 238, which states:

[145]     The PCA Act is a species of public welfare legislation designed to relieve distress in animals. The charge before the court is one of strict liability and engages the principles espoused in R. v. City of Sault Ste. Marie, 1978 CanLII (SCC). In Sault Ste. Marie, the Supreme Court of Canada held there is a presumption at law that public welfare legislation creates strict liability offences. Once the Crown has proven beyond a reasonable doubt that the accused committed the wrongful act, the accused can avoid liability by establishing a defence of due diligence on a balance of probabilities.

[146]     Section 24.02(c) of the PCA Act also sets out a defence to a charge before the court. It states:

[147]     The matter before the court is not considered a “true crime” but rather a regulatory offence. Still, if convicted, Ms. Scott could face a fine not exceeding $75,000 or to a term of imprisonment not exceeding two years, or both: s. 24.1 PCA Act. Consequently, this offence is quasi-criminal and as set out above, the Crown must prove all the elements of the offence beyond a reasonable doubt.

[148]     A thorny issue raised in this case is that of identity: Who is responsible for animals being in distress through neglect when there were two people who shared some, but not all of the responsibilities for their care? In civil proceedings this would be dealt with by the application of the principle contributory negligence.

[149]     Criminal law does not concern itself with contributory negligence or the apportionment of blame. As stated by Watt J.A. in R. v. K. L., 2009 ONCA 141 (CanLII), at para. 18:

[150]     In R. v. Bavarsad, 2008 BCCA 137, the B.C. Court of Appeal agreed with the Crown’s concession that “the concept of joint and several liabilities for criminal fines is a concept not known to criminal law.” The logic underpinning this principle has some relevance to the situation in the case at bar.

[151]     In reaching my decision in this case, I have considered the legislation and jurisprudence set out above. I have also considered how negligence in the criminal law context requires the Crown to prove beyond a reasonable doubt the wrongful act was a significant contributing cause of the harm done: R. v. Nette, 2001 SCC 78 (CanLII), p. 71; R. v. Maybin,2012 SCC 24 (CanLII), para. 17.

[152]     The British Columbia Society for the Prevention of Cruelty to Animals (BC SPCA) is a not-for-profit organization created under the Prevention of Cruelty to Animals Act, R.S.B.C. 1996, c. 372 (the "PCA Act"). The PCA Act empowers the SPCA to investigate incidents of and enforce laws relating to animal cruelty and to recommend charges to Crown Counsel for the prosecution of individuals who inflict suffering on animals.

[153]     Ms. Scott is charged with a quasi-criminal offence and the Crown must prove the essential elements of the offence for which she is charged on the criminal standard of beyond a reasonable doubt, namely: (1) Ms. Scott either owned or had custody and control of the horse in issue; and (b) the horse was in distress; and (c) Ms. Scott either caused; or (d) permitted the horse to continue to be in distress. The Crown does not assert Ms. Scott caused any horses to be in distress, only that she permitted them to continue to be in distress.

[154]     The criminal standard of proof applies only to the essential elements of the offence and trial judge’s final determination of guilt. In its fact-finding stage, the trial judge must weigh individual pieces of evidence on the lower civil standard of a balance of probabilities: R. v. Redford, 2014, ABCA 336, at para. 13-15; R. v. White, [1998] 2 SCR. 72, 1998 CanLII 789 (SCC).

[155]     Although there are many points of agreement among the witnesses there are also points of disagreement and confusion. It is trite law that a judge can accept all, some or none of a witnesses’ evidence. In order to evaluate the evidence, I must assess its credibility and reliability.

[156]     In order to assess the credibility of each witness, I have taken into consideration the following factors: (a) the plausibility of their evidence; (b) any independent supporting or contradicting evidence; (c) the external consistency of the evidence; (d) the internal consistency of the evidence, (e) the ”balance” of the evidence, meaning the witnesses apparent willingness to be fair and forthright.

[157]     There are a number of challenges in assessing credibility in this case, including the fact the offence took place three to four years ago and all the witnesses are long term horse owners experienced in horse husbandry with their own views and opinions on the care and management of horses.

[158]     I found Ms. Scott generally to be a credible and reliable witness, although there are some aspects of her testimony I do not accept. Her narrative of events was internally consistent except where she became confused as to what happened on what day between August 12, 2014 and September 5, 2014. Of all the witnesses, Ms. Scott was the only one who had no legal or professional obligation to document her interactions with others; therefore, I do not find her confusion as to what was said and when it was said undermines the credibility or reliability of her evidence.

[159]     Where Ms. Scott’s credulity suffers is her insistence she had a farrier service the herd every six to eight weeks. This assertion is inconsistent with the evidence of Constable Edge, Dr. Langan and Mr. MacNaughton and the photographs of horses’ hooves which comprise Exhibit 1. I accept that Mr. MacNaughton provided farrier services to the Scott herd every three months while they were boarded on Joe Kopetski’s farm between November 2013 and June of 2014. I accept that before the residence at 5019 Browning Road burned, the Scotts arranged farrier services for their horses as required. I am not persuaded they had arranged for external farrier services in the two to three months prior to Constable Edge issuing the Notice of Distress.

[160]     Another aspect of Ms. Scott’s evidence I find difficult to accept was her insistence that providing veterinarian care for the horses, including the surgeries for Bella and Handsome, was not a financial hardship. In 2013 and 2014, Ms. Scott experienced a perfect storm of misfortune:

[161]     In the summer and fall of 2014, Ms. Scott was faced with an expensive surgery for Handsome and Mr. Scott for Bella. If money wasn’t an issue, I do not believe that Mr. Scott would have agreed to euthanize Bella or that Ms. Scott would have surrendered Handsome to the BC SPCA.

[162]     I accept Ms. Scott’s evidence’s that she paid Dr. Langan market rate for antibiotics and anti-inflammatories. Although demeanour evidence can be deceiving, Ms. Scott looked visibly shocked at the suggestion that Dr. Langan would have given her a break on veterinarian medicines and services. She said she paid the price on the label. She also explained one of her cheque had not cleared because of a bank error and this was dealt with and Dr. Langan was paid.

[163]     Ms. Scott’s account of how she cared for the horses, relying on a combination of homeopathic remedies, self-help and veterinary care is entirely plausible and I accept that this is in fact what she did. Her evidence in this regard is corroborated to some extent by Mr. MacNaughton who seems to take a similar approach to horse husbandry.

[164]     Mr. MacNaughton’s evidence as an experienced farrier and someone knowledgeable of horse husbandry. I found his evidence credible, helpful, balanced and sensible.

[165]     I have no concerns about Dr. Langan’s skills and expertise as a veterinarian. She was not, however, a particularly good historian. For example:

[166]     There were other aspects of Dr. Langan’s evidence which gave me pause. For example, Dr. Langan testified in examination-in-chief, she did not know in September 2013, if Rosie’s P3 had rotated because “we didn’t actually document that because you need to do it with an x-ray.” This comment caused me to wonder if Dr. Langan was at times reconstructing an opinion from what she gleaned from her examination of Rosie on September 5, 2014.

[167]     In a similar vein, it was not always clear to me what Dr. Langan specifically remembers telling Ms. Scott and what she supposes she might have said in the circumstances. One instance of this lack of clarity relates to Dr. Langan’s evidence of what she said or might have said to Ms. Scott in the fall of 2013 about euthanatizing Rosie.

[168]     Whether it was intended or not, it struck me when formulating her opinions on the medical status of the Scott horses in 2014, Dr. Langan relies almost exclusively on her own clinical observation. It did not seem that Dr. Langan consulted with Ms. Scott prior to forming her opinions about the Scott horses.

[169]     Dr. Langan was not asked in cross-examination to opine on the efficacy of Ms. Scott’s various homeopathic and self-help remedies. Dr. Langan was asked examination-in-chief if Ms. Scott told her in August 2014 about what she had done to care for the horses since she last saw her. Dr. Langan said, “No. I have a pretty sparse history here.” I do not know if Dr. Langan’s opinions on causation might change if she was aware of Ms. Scott’s efforts to care for her horses.

[170]     When Constable Edge became involved in the investigation of this matter she had been a Special Provincial Constable for the BC SPCA for six months. I accept Constable Edge was attempting to be truthful in her evidence and she was sincerely concerned about the Scott horses. Nevertheless, I find the following aspects of her investigation of this matter and her evidence at trial troubling:

[171]     When she made these statements Constable Edge knew : (a) Rosie was an elderly thoroughbred; (b) thoroughbreds do not keep their weight on at the best of time and Rosie had just foaled out; (c) Rosie had laminitis, foot abscesses and an infection; (d) Ms. Scott had had obtained all the medicines prescribed by the veterinarian and administered to Rosie; (e) Ms. Scott had sourced out and acquired different hay (f) with the exception of Rosie and Kelly, none of the other horses in the Scott herd were underweight. It struck me that Constable Edge wanted to blame Ms. Scott for Rosie’s condition, no matter what its cause, be it medical or nutritional. She did not seem to give any credence to the fact that in 2013, Ms. Scott did not know why Rosie was underweight which is why she contacted the veterinarian in the first place.

[172]     Another example of Constable Edge’s unwillingness to be even-handed is reflected in her responses to questions put to her in cross-examination about Rosie’s December 19, 2013, choking incident:

[173]     When Constable Edge made these comments, she knew the Scott herd was being boarded at the Kopetski farm. There was no requirement that Ms. Scott personally attend to horses each and every day because Mr. Scott and/or Mr. Kopetski were also caring for the horses. Constable Edge simply refused to concede that Ms. Scott was complying with Dr. Langan’s instructions to give Rosie supplements.

[174]     I also found that Constable Edge seems to have leapt into action prematurely. For example, she testified that on August 29, 2014, she was convinced the mare was in “a very grave situation and . . . needed to be relieved of her distress, whether that’s through euthanizing her or other means.” I understand the “mare” is in reference to Kelly. Constable Edge had never seen Kelly at that point, nor had she seen the Scott herd since the end of November 2013. Moreover, she told the brand Inspector and the RCMP that the Scott horses on August 29, 2014 were not in “critical distress.”

[175]     When asked about the horses left with Ms. Scott notwithstanding the habitat hazards persisted, Constable Edge testified that at the time of executing the warrant, the BC SPCA was focussing on the horses in critical distress and in distress. She said:

[176]     The evidence showed Ms. Scott cooperated with Constable Edge at every juncture. She allowed her to inspect her horses without a fuss or a warrant. Notwithstanding she had a client/patient relationship with Doctor Langan, Ms. Scott did not protest Constable Edge contacting Dr. Langan for updates on her horses. Ms. Scott reported to Constable Edge her progress in dealing with issues which Constable Edge identified as a concern. Ms. Scott agreed to have Mr. Scott euthanize Rosie and Bella, although she did not believe it necessary. She surrendered Handsome to the BC SPCA even though she felt bullied and did not believe Handsome was in critical need of the hernia surgery. Still, in cross-examination on January 12, 2017, Constable Edge said she recommended Ms. Scott be charged with the offence before the court because:

[177]     I will address each of these allegations below:

[178]     Constable Edge first became involved in Ms. Scott’s affairs when she noticed Rosie and Handsome in their paddock on September 5, 2013. She returned to investigate on September 17, 2013, because the mare and foal looked emaciated. There is no mention of Constable Edge having any concern for the other horses pastured at 5019 Browning Road. This was not a situation where an entire herd was starving for food or water.

[179]     Ms. Scott testified that she purchased hay for the herd from Mr. Kopetski. Photographs DSCF0063-DSCF0066 on pp. 102-103 of Exhibit 1 confirm that on September 17, 2013 there was an abundance of hay at 5019 Browning Road. Although either Dr. Langan or Constable Edge questioned the nutritional content of that hay, it was the same hay which the Scotts fed to all their horses. There is no scientific evidence whatsoever the Scotts’ hay was nutritionally deficit, and even if it was, Ms. Scott would not have known this to be the case.

[180]     The evidence of both Dr. Langan and Constable Edge was that other than the older mares with medical conditions and their nursing foals, the Scott horses were in good physical condition. On Dr. Langan’s advice, Ms. Scott obtained nutritional supplements for Rosie and Handsome and a better quality of hay for all the horses. Even before receiving that advice, Ms. Scott was providing Rosie beet pulp.

[181]     When Dr. Langan attended at 5019 Browning Road on August 12, 2014, to assess Bella, she noted there was hay in the pen where Bella and Kelly were contained. When asked in cross-examination if on August 12, 2014, she was aware that both Kelly and Rosie were getting proper nutrition, Dr. Langan responded:

[182]     Constable Edge said that when she attended at 5019 Browning Road on August 31, 2014, with the exception of Rosie and Kelly, the Scott herd was in good condition and the horses were carrying a “good amount of weight.”

[183]     Rosie had access to the same hay and grass as the other horses. Kelly had the same hay in her paddock which was fed to the rest of the herd. The evidence indicates that it was not the quality or the quantity of the food that was causing Rosie and Kelly’s poor body condition, but rather, as Dr. Langan suggests, these older mares were experiencing a decreased appetite as a result of their medical condition. There is no reason to believe the Scotts selectively denied Rosie or Kelly food.

[184]     It does make sense that if Rosie and Kelly were in pain, they would eat less and fail to thrive.

[185]     The evidence that Ms. Scott failed to provide the horses with food is slim to non-existent.

[186]     Although their house had burned, the Scotts had a 170 gallon tank on 5019 Browning Road they filled daily from a well pump on the property to water horses. Constable Edge took a photograph of the well pump at 5019 Browning Road and the five gallon buckets of water Ms. Scott set out for the horses: see: Exhibit 1, pp. 133 - 135, photos. DSC_0107- DSC_0111.

[187]     Dr. Langan testified that when she saw Kelly and Bella on August 12, 2014 and again on September 5, 2014, they had containers of water in their paddock.

[188]     When challenged as to why Ms. Scott was charged with offences with respect to Kelly and Bella, Constable Edge stated in cross-examination:

[189]     There not a scintilla of evidence that Ms. Scott failed to provide the horses with water.

[190]     The only evidence the Crown adduced with respect to shelter is Constable Edge’s discussions with Ms. Scott on October 12, 2013, when Ms. Scott told her the “Shelter [is] still to be built.” I gather Constable Edge’s had expressed some concern about the lack of shelter for Rosie and Handsome. As it turned out, the residence at 5019 Browning Road burned and all the horses were relocated and boarded on the Kopetski farm. There is no evidence as to adequacy of the shelter at the Kopetski farm.

[191]     There was no indication at trial whether the shelter to which Ms. Scott referred on October 12, 2013, was ever built and the Crown never asserted lack of shelter as a reason why Rosie, Handsome, Kelly or Bella were in distress.

[192]     The evidence before the court was that Ms. Scott arranged the following veterinary care for the horses between September 2013 and September 5, 2014:

[193]     It is noteworthy that neither Handsome nor Bella were in pain or imminent danger from their medical conditions nor were they in desperate need of medical care. They had medical conditions that needed to be addressed, but these were not urgent.

[194]     Constable Edge knew Ms. Scott arranged for veterinary care for her horses from time-to-time because she was at 5019 Browning Road when Dr. Langan was present. Constable Edge was also in direct communication with Dr. Langan about the Scott horses. I accept that Constable Edge believed the veterinary care for some of the Scott horses was wanting, but it cannot fairly be said that Ms. Scott generally failed to provide veterinary care for the horses. I do accept that Constable Edge was concerned about the dearth of veterinary care for the Scott horses.

[195]     Ms. Scott testified she arranged for the horses to have farrier services every six to eight weeks. In the last three or four years, she engaged Mr. MacNaughton to provide those services. He also provided farrier services to the Scott horses while they were boarded at Mr. Kopetski’s farm.

[196]     Ms. Scott said that by the summer of 2014, Rosie would not allow a farrier to touch her feet, so she trimmed them as best she could when Rosie was lying down.

[197]     Ms. Scott agreed that Rosie and Kelly’s feet were due, if not overdue for a trim by August 31, 2014. Mr. MacNaughton estimated the growth on Rosie’s foot as depicted in Exhibit 1, p. 124, photos.DSC_0130 - DSC_0131, was three months. Mr. MacNaughton said from his view of the photographs at Exhibit 1, p. 127, DSC_0137, Kelly’s hooves resembled those of some horse clients he had whose hooves had not been trimmed for six to eight months.

[198]     Dr. Langan was of the view that Kelly’s feet had not been trimmed for over a year and Rosie’s only once in the preceding year. Yet Dr. Langan also testified she was “pretty sure there was a farrier onsite” because the geldings looked like they had had their feet done.

[199]     With respect to Rosie and Kelly, Dr. Langan acknowledged it would be very difficult for a farrier to work on their feet. She stated:

[200]     Constable Edge testified:

[201]     The evidence indicates that although the Scotts did provide farrier services for the horses, this was not always done consistently or in a timely manner. Exhibit 1 indicates as of August 31, 2014, and September 5, 2014, Kelly and Rosie’s hooves were in rough shape. Moreover, Dr. Langan’s post-mortem on Kelly indicted her hooves were badly in need of farrier services. I accept Constable Edge’s concern for the lack of farrier services provided to Rosie and Kelly was well-founded.

[202]     I understand Constable Edge’s reference to “general horse care” refers to bot eggs she observed and documented on the horses at 5019 Browning Road. She was of the view that they can be removed through daily horse care.

[203]     Dr. Langan testified that bots are parasites that start inside the horse’s stomach. They are excreted in manure, hatch into flies and then lay little yellow eggs on the surface of the horses’ hair coats. Dr. Langan said the bots eggs generally do not cause the horse discomfort, internally or externally. There is no medical evidence to indicate the horses at 5019 Browning Road suffered complications related to bots or any other parasites.

[204]     Dr. Langan says bot eggs cannot be completely eradicated, but can be controlled with regular deworming programs. Ms. Scott says she deworms the horses two to three times per year. Dewormer is something that a horse owner purchases at a feed store. Dr. Langan does recall deworming Rosie and Handsome when she examined them in September 2013.

[205]     When asked in cross-examination about the ubiquity of bots eggs, Constable Edge said:

[206]     I find that if any of the Scott horses were in distress, it was not because of bot eggs.

[207]     The Scott house burned down in November 2013, after which the Scott horses were relocated to Joe Kopetski’s farm until June 2014. When they returned to 5019 Browning Road, there was still rubble present from the burned and collapsed house. Ms. Scott testified that it was supposed to have been removed by the insurer, but this did not happen without a fight.

[208]     Ms. Scott said the horses did not venture into the debris. She did fence off the collapsed building, but the horses tromped on the snow fence she had erected to get to green grass that surrounded its perimeter. No horses went in or on the structure and none were injured.

[209]     Mr. MacNaughton confirmed that it is unlikely a horse would venture into a collapsed building as depicted in the photographs, unless they were being chased by a bear. Their only interest is in the perimeter grass, not the building itself. He also commented that it is not unusual to see old buildings in a pasture that should be torn down and removed.

[210]     Upon receiving the August 31, 2014 Notice of Distress, Ms. Scott fenced off the collapsed structure and picked up large amounts of binder twine that was used around the hay and accessible to horses. Constable Edge was satisfied this had been done.

[211]     Kelly and Bella were isolated in a paddock separate from the pasture. Rosie was also separated from the other horses. The horses had returned to 5019 Browning Road in June of 2014, so they had only been exposed to the collapsed building for three months before Constable Edge issued the BC SPCA Notices of Distress 01159 and 01160.

[212]     The collapsed building had to be fenced until it was removed and the binder twine needed to be collected from the field. This was done within a week or two weeks of Ms. Scott being directed to do so. Still, the field debris was not one of the reasons Constable Edge had Rosie, Kelly and Bella euthanized, and Handsome seized and rehomed. If those horses were in distress, the debris was not a contributing cause.

[213]     In considering what she knew or ought to have known at the time these charges were laid and at the time of trial, I find Constable Edge exaggerated and embellished Ms. Scott’s neglect of the horses and their environment. Clearly, Constable Edge had some legitimate concerns about the well-being of some of the Scott horses and the state of their pasture. I also accept she subscribes to the standard of care set out in the Equine Code of Practice, and although referred to, this manual was never before the court. Nevertheless, to assert Ms. Scott allowed her horses to continue to be “in distress” by failing to provide food, water, shelter, veterinary care, general horse care, farrier care and exposing them to an excessive amount of hazards is profoundly unfair. Constable Edge, in conjunction with Dr. Langan, determined that Rosie, Kelly, Bella and Handsome were in distress or critical distress because of their unresolved medical issues, none of which Ms. Scott caused and many of which Ms. Scott was addressing when Constable Edge had them seized and/or euthanized.

[214]     In R. v. W. (D), 1991 CanLII 93, the Supreme Court of Canada has provided the trial Courts with an analytical framework to assess reasonable doubt in the context of conflicting testimony in a criminal trial. Recently, Professor David M. Paciocco, in his paper, Doubt about Doubt: Coping with R. v. W(D) and Credibility Assessment, recasts the W(D) test as follows:

[215]     The horses found and seized by the BC SPCA at 5019 Browning Road were Rosie, Handsome, Kelly, and Bella. The evidence in this case indicates the person who owned the mare also owned her foal. Accordingly, for the purposes of Issue #1, I have dealt with Rosie and Handsome as a unit and Kelly and Bella as a unit.

[216]     The evidence clearly shows that Ms. Scott owned and accepted responsibility for Rosie and Handsome. This responsibility included Rosie and Handsome’s veterinarian care. Although Ms. Scott shard the horses’ day-to-day care with Mr. Scott and Mr. Kopetski, Ms. Scott was responsible for determining whether and when Rosie would be euthanized and when Handsome would have his hernia operation.

[217]     I find the Crown has proven beyond a reasonable doubt that Ms. Scott was a person responsible for Rosie and Handsome during the offence period, namely September 17, 2013 to September 5, 2014.

[218]     The question of Ms. Scott’s responsibility for Kelly and Bella is complex as it is uncontested she did not own Kelly or Bella.  

[219]     The first question which needs to be addressed is: What is the offence period as it relates to Kelly and Bella? I understand from Constable Edge’s testimony the offence period for these two horses is between August 31, 2014 to September 5, 2014. The Crown chose to limit the offence date against Mr. Scott to the six day period when Constable Edge was confident he owned Kelly and Bella. Arguably, Ms. Scott should not be held responsible for Kelly and Bella for a period greater than that for which Mr. Scott was deemed responsible. The evidence at trial, however, indicates that Kelly and Bella were on 5019 Browning Road from the time Bella was born in late June or early July 2014. (Ms. Scott thought Bella was born in June or July 2014 and Dr. Langan said Bella was one month old on August 12, 2014.) Ms. Scott was never asked about when or if Mr. Kopetski owned Kelly. It is a reasonable assumption that if Mr. Kopetski did own Kelly while she was stabled at his farm, then he was the person responsible for her care.

[220]     I have concluded the offence date as it relates to Kelly and Bella commences upon Kelly’s return to 5019 Browning Road and Bella’s birth, which I will fix at July 1, 2014, and extends to their destruction on September 5, 2014.

[221]     The second concern is that of identity. The Crown must prove beyond a reasonable doubt Ms. Scott was “a person responsible for the animal and caused or permitted them to continue to be in distress.”

[222]     The Scotts shared many responsibilities for the herd of horses kept on 5019 Browning Road, both before and after their separation and before and after their residence burned. These responsibilities included: (a) food; (b) water; (c) pasture; (d) farrier services; (e) relocation the horses to and boarding them at Mr. Kopetski’s farm.

[223]     Mr. and Ms. Scott continued to share the responsibility of providing food and water for Kelly and Bella during the summer of 2014 while they were kept at 5019 Browning Road. When dealing with issues relating to the herd, Constable Edge generally dealt with Ms. Scott. The Crown argues that because Ms. Scott cared for all the Scott horses in some fashion, she is the person responsible under the PCA Act. I am not so sure.

[224]     I accept Ms. Scott’s evidence that while she and her estranged husband shared many tasks involved in the care and management of their respective horses, they did not share all responsibilities, and most importantly, financial responsibility. Mr. and Ms. Scott were no longer a couple. Ms. Scott accepted responsibility for veterinarian services for Rosie and Handsome and other horses over which she claimed ownership. Mr. Scott was responsible for veterinarian services for those horses which he owned or which belonged to his daughter.

[225]     Custody and control is not defined in the PCA Act. Upon engaging the principles of statutory interpretation I agree with Judge Clare in R. v. Roos & Stevens (22 October 1999), Port Coquitlam 57274-01 (B.C. Prov. Ct.), that the intent of the Act is to relieve distress in animals that are really unable to look after, to fend for, or to feed themselves. (Also see: Dongen v. The Society for the Prevention of Cruelty to Animals, 2005 BCSC 548 (CanLII))  

[226]     In Chrysler, Judge Gillespie held at para. 12:

[227]     In my view the term “custody and control” needs to be interpreted sufficiently broadly to include not only the day-to-day care of an animal, but also, the rights and obligations associated with the animal’s physical well-being, which include its veterinarian care and making decision about whether and when the animal is to be euthanized.

[228]     In this case, Mr. Scott was present, willing and able to take responsibility for his horses. He was both their owner and custodian. The evidence indicates he was at 5019 Browning Road on almost a daily basis. He may in fact have been the unidentified person Dr. Langan conversed with on August 12, 2014 about Kelly.

[229]     Mr. Scott’s active presence distinguishes this case from R. v. Sudweeks, [2003] B.C.S.C. 1960, cited in Chysler, where no one was actually taking responsibility for the animals. Although the PCA Act is remedial, I do not believe it should be interpreted so broadly as to hold non-owners liable for animals being in distress from the neglect of an owner who has actual custody and control of those animals. This was not a situation where the owner had surrendered custody or control of his animal to another; nor is a situation where the owner was absent, unable or unwilling to care for his animals. During the ten week offence period, Ms. Scott assisted Mr. Scott with many aspects of Kelly and Bella’s care, as he undoubtedly did for Rosie and Handsome. Although Mr. Scott eventually succumbed to his illness, I do not know when he became too incapacitated to care for his own horses. I note, for example, it was Mr. Scott who decided to euthanize Bella on or about September 1, 2014.

[230]     In this case, there is no need to hold Ms. Scott liable for Kelly and Bella because Mr. Scott was primarily responsible their welfare and capable of alleviating their distress. In other words, the efficacy of the legislative purpose does not require the net of responsibility to be cast beyond the person who is both the animal’s owner and custodian. Moreover, to do so, can lead to an outcome which is unreasonable and unjust. It could hold non-owners responsible for costly veterinarian care simply because they agreed to assist with feeding and watering the animal.

[231]     Surely, it is not unusual for owners to pool their resources to care and maintain large animals such as horses. They should be allowed to arrange their affairs so as to allocate responsibility for those animals. If, for example, a farmer allowed his neighbour’s horse to graze on his pasture in exchange for some other consideration, does this make a farmer “a person responsible” for the horse under the PCA Act if the owner fails to provide that horse with farrier care? In my view it could have a chilling effect on a person’s willingness step in and care for animals they do not own and make it risky for people to work collectively to provide food, water, pasture and shelter.

[232]     The evidence is clear that Ms. Scott accepted responsibility for arranging Bella’s surgery; it is not clear that she accepted financial responsibility. If this were the case, then it makes no sense for Mr. Scott to have decided to euthanize Bella. I am not convinced her efforts to address Bella’s deformity shifted onto Ms. Scott the entire burden of providing veterinarian care for or euthanizing Kelly and/or Bella. Ultimately, it was Mr. Scott who decided Bella should be euthanized and would have done so himself had he not received his own “death warrant.”

[233]     Having considered: (a) the BC SPCA Notices of Distress Orders 01159 and 01160 which Constable Edge issued to Mr. and Ms. Scott respectively and separately; (b) Constable Edge’s evidence at trial; (c) the two counts on Information 26117-1 charging Mr. and Ms. Scott separately and for different offence periods, I am left with the impression the Crown originally intended to hold Ms. Scott responsible for Rosie and Handsome and Mr. Scott responsible for Kelly and Bella. The Crown shifted liability for all four horses onto Ms. Scott when the charge against Mr. Scott abated. This impression is reinforced by the fact that Mr. Scott was not charged with any offence relating to Rosie and Handsome, who he also fed and watered, nor was Mr. Kopetski charged with any offences although he boarded Rosie, Kelly and Handsome on his farm from November 2013 to June 2014.

[234]     In cross-examination, Constable Edge attempted to testify as to some of her discussions with Mr. Scott, to which the Crown objected on the basis it was hearsay evidence. Some of this evidence was favourable to Ms. Scott, as it confirmed Mr. Scott and Mr. Kopetski owned Kelly at various times and that Mr. Scott was taking responsibility for euthanizing Rosie and Bella. Mr. Scott died long before the trial. His statements were ones made to an opposing party and against penal interest. Although there was no impediment to the defence seeking to have these statements considered for their truth under the principled approach to the hearsay rule, no such attempt was made. Nevertheless, in R. v. Edwards, 2004 BCCA 558 (CanLII), the B.C. Court of Appeal found an accused could adduce in evidence as part of his or her case an inculpatory out-of-court statement by a co-accused.

[235]     Whatever use can or cannot be made of Mr. Scott’s statements to Constable Edge, I am not persuaded that while he was alive and present, willing and able to care for his own horses, that Ms. Scott had “custody and control” of them. Accordingly, I find the Crown has failed to prove beyond a reasonable doubt that Ms. Scott was a person responsible for Kelly or Bella during the offence period.

[236]     The Crown has charged Ms. Scott with respect to Rosie from September 17, 2013 to September 5, 2014. The Crown must show that Rosie was deprived those necessities of life set out in s. 1(2) of the PCA Act or she was “injured, sick, in pain or suffering.” Dr. Langan said from her examination of her on September 17, 2013, Rosie was suffering from abscessed hooves, founder and chronic inflammation caused by infection. Founder or laminitis is a chronic and progressive disease. Although Rosie was showing signs of founder on September 17, 2013, she could not be euthanized because Handsome had not been weaned.

[237]     Dr. Langan agreed with the prosecutor’s suggestion she next saw Rosie on August 12, 2014. This would have been the time Dr. Langan attended at 5019 Browning Road at Ms. Scott’s request to assess Bella. Dr. Langan said she noted on her cheat sheet, "Rosie needs to go to sleep," meaning Rosie needed to be euthanized. Rosie wasn’t mobile, her body condition was not good, she was dull, her tail sucked in, her eyes glazed and her head down. Rosie’s P3 or coffin bone in her foot appeared to have rotated causing her significant pain. Dr. Langan does not say where Rosie was when she made all these observations or how long she was observing Rosie. Dr. Langan made no mention of Rosie having adopted a “saw horse stance” or having a high pulse rate.

[238]     I am concerned that Dr. Lagan’s encounter with Rosie occurred not on April 12, 2014, but on September 5, 2014. I do not understand why Dr. Langan would have made such an in-depth field assessment of Rosie on August 12, 2014, when she was at 5019 Browning Road to assess Bella. In fact, Dr. Langan said she did not examine Kelly, who was in the same paddock as Bella, because that is not what she was asked to do. This is where it may have been helpful to have Dr. Langan’s clinical records in evidence.

[239]     Ms. Scott admits that by 2014 Rosie’s feet were quite bad. She had difficulty keeping them trimmed as Rosie did not like anyone touching her front feet. Still, Ms. Scott does not agree that Rosie was in chronic pain or immobile. Rosie had her good days and bad days. Despite her feet problems, Rosie would often walk a kilometre every day. She walked up the field to Joe Kopetski’s pasture, grazed all day, turned around and walked home, had her drink, socialized with the other horses, walked back up the field and grazed some more. She maintained this routine up until the time she was euthanized.

[240]     Dr. Langan testified that specialized farrier work is important to manage founder. She stated: “. . . I think a farrier maybe had been called once” in the preceding year. At this point she had not examined Rosie or spoken to Ms. Scott about Rosie since 2013. Mr. MacNaughton testified of his 200 to 300 horse client, 40 or 50 are foundered. He confirmed they require regular farrier work to take the pressure off the coffin bone so they stand up better. Upon reviewing photograph DSC_0131 taken August 31, 2014 (Exhibit 1, p. 124), Mr. MacNaughton expressed the view Rosie was foundered. He says he had dealt with hundreds of hooves in similar or worse shape. In his experience, foundered horses are not in a lot of pain if they are not laying down to relieve the pressure on their feet. He noted photograph DSC_131 is of Rosie standing. She was not laying down or pointing her legs out straight ahead to relieve the pressure.

[241]     I accept that Rosie was in distress between September 17, 2013 to September 5, 2014, but not continuously. I do not accept that Rosie was in constant or unremitting pain. She was not always laying down; she did not adopt a saw horse stance nor was she immobile. There were times when Rosie did lay down, and that is when Ms. Scott trimmed her feet. There also were times when Rosie strolled up and down the pasture.

[242]     I accept Ms. Scott’s evidence that Rosie had her good days and bad days but was reaching the end of her time.

[243]     Rosie had a progressive debilitating disease. By August 2014, she was, as Dr. Langan observed, “losing the battle” and it was time that “Rosie went to sleep.” In this sense, Rosie was in distress.

[244]     On September 17, 2013, when Doctor Langan and Constable Edge first met Handsome, he was seriously underweight. Because Rosie was ill and Handsome had yet to be weaned, he was not getting sufficient nutrition to thrive. In that sense, Handsome was “being deprived of adequate food” and was likely suffering. These circumstances were rectified upon Ms. Scott seeking out and following Dr. Langan’s advice about nutritional supplements.

[245]     On September 5, 2014, Constable Edge determined Handsome was in distress because of his untreated hernia. She believed it could rupture at any time and therefore potentially fatal. Dr. Langan did not share Constable Edge’s degree of urgency or alarm.

[246]     While it is likely that Handsome would require surgery at some point, I do not find he was being deprived of “veterinary care.” On September 5, 2014, when Constable Edge seized Handsome, Ms. Scott had already arranged for Dr. Langan to have his hernia surgically repaired.

[247]     I do not believe the legislators intended the term “distress” to be interpreted so broadly as to include medical conditions which will require veterinarian intervention at some point where the owner is making or has made those arrangements. Handsome was not “injured, sick, in pain or suffering” nor was he deprived of adequate veterinary care. He had ample food and water and his body was in good condition. The debris in the field was not such as to cause Handsome to be in distress as that term is defined in the PCA Act. The Crown has failed to prove on either a balance or probabilities or beyond a reasonable doubt that Handsome was in distress as a result of his untreated hernia, or to the extent it is relied upon, the presence of bot eggs on his legs.

[248]     Although I have already found the Crown has failed to prove beyond a reasonable doubt that Ms. Scott was a person responsible for Kelly, I will nevertheless consider whether Kelly was in distress at the material time.

[249]     Dr. Langan saw Kelly on August 12, 2014, when she stopped by 5019 Browning Road to assess Bella. At the time, Kelly was nursing Bella and they were segregated in a round pen.

[250]     Although she was there to assess Bella, Dr. Langan conducted “a distance exam” on Kelly. She described Kelly’s body condition on August 12, 2014 as being two to three on the Henneke scale. Kelly was a little underweight, but that was attributable in part to the fact she had just foaled out. What concerned Dr. Langan was that Kelly was visibly lame. Although she did not examine her at that time, Dr. Langan opined that Kelly “probably started out as . . . a navicular or founder horse.” Navicular is a syndrome which causes a horse foot pain, which can progress to founder and sole abscesses if untreated. Dr. Langan said this is a difficult diagnosis requiring x-rays. Its treatment requires special farrier work and ongoing medication.

[251]     Dr. Langan did not determine Kelly should be euthanized until September 5, 2014. On that date she conducted a field exam and concluded Kelly was in critical distress because of her navicular/laminitis. She still did not take x-rays. Dr. Langan made the following observations about Kelly and her habitat:

[252]     Dr. Langan said she suspected Kelly was fed intermittently with questionable feed and a farrier had not trimmed her hooves for over a year. She also said that there could have been “things” to prevent Kelly’s deterioration, but they would have cost time and money and it is a very big commitment on the owner’s part to try and maintain diseases such as laminitis and navicular in horses. In her view nothing had been done to prevent the deterioration. When asked why she decided Kelly should be euthanized, Dr. Langan stated:

[253]     On September 5, 2014, Constable Edge also noted that Kelly was underweight and scored her at two on the nine point Henneke scale. Kelly’s hooves were in bad shape, with significant cracking: see Exhibit 1, pp. 144 -145, photos DSC_129- DSC_131. In her view, Kelly was having difficulty walking and in critical distress.

[254]     Mr. MacNaughton testified that he had provided farrier services to the Scott herd while they were boarded at Mr. Kopetski’s farm every two to three months. He viewed photographs of Kelly taken on August 31, 2014: Exhibit 1, pp. 127-128, DSC_ 0137- DSC_0139. Mr. MacNaughton did not recall Kelly specifically, however provided the following opinion about her hooves as depicted in the photograph:

[255]     Mr. MacNaughton also said he would defer to any contrary opinion of a veterinarian with respect to medical conditions or hoof care.

[256]     Ms. Scott said that although she fed and watered her, Kelly was not her horse and she was not aware Kelly was suffering from navicular and founder. Ms. Scott did not consider Kelly lame and did not believe that Mr. Scott thought Kelly was foundered. Ms. Scott did not notice Kelly was in pain. She believed Kelly was simply refusing to walk for Constable Edge out of obstinacy, as was her habit.

[257]     The photographs taken on August 31, 2014 and September 5, 2014, do not assist me in determining whether Kelly was noticeably foundered or lame or in pain or adopting a “saw horse” stance: Exhibit 1, p. 121, photo DSC_0124; p. 122, photo DSC_0127; pp. 144-145, photos DSC_0129-DSC_0131; p. 148, photos DSC_0137-DSC_0138. None of the photographs depict Kelly laying down before she was euthanized.

[258]     Given Dr. Langan only diagnosed Kelly’s on September 5, 2014, it is difficult to see how Ms. Scott could have done so previously. If Kelly was visibly lame as Dr. Langan contends, I find it surprising that Mr. Scott did not offer to euthanize Kelly along with Bella.

[259]     In any event, whatever Ms. Scott knew or didn’t know about Kelly’s medical diagnosis, I find the Crown has proven beyond reasonable doubt that Kelly was in distress during the offence period.

[260]     Bella was born with an angular limb deformity in her right leg. Ms. Scott said she was not in pain and was up running around shortly after her birth. The Scotts tried to straighten Bella’s leg by binding it, but that proved unsuccessful. Before receiving the Notice of Distress, Ms. Scott had arranged for a veterinarian to examine Bella and when she learned Bella required surgery, Ms. Scott began making inquiries into when and where this could take place.

[261]     Mr. MacNaughton reviewed the photograph of Bella on Exhibit 1, pp. 121-122, DSC_0124-DSC_0126. He described Bella’s angular deformity as a “windswept foot” caused by having insufficient room in the mare’s womb. Mr. MacNaughton sees this condition often in his horses. He has corrected it many times by cutting one side of the sole of the foot and levelling it off more than the other. This causes the bone to turn so the knee straightens. He does not use a brace; he corrects the problem through vigilant farrier work. As the bones develop over five or six years, the foal’s leg will straighten if the farrier work is done correctly. Mr. MacNaughton has seen foals with far worse deformities than that which Bella suffered.

[262]     Mr. MacNaughton opined that in his experience, a foal would not be in pain as the result of the angular deformity. He said foals with a deformed knee like Bella’s will run around within two or three days of birth. All that is required is relieving the pressure in the knee through a focused correction of the feet.

[263]     Dr. Langan testified that despite having signed off on the BC SPCA Critical Distress Form, Bella was not in pain or distress. Had her deformity continued untreated for several years, Bella might have developed arthritis in the affected joint and suffer pain.

[264]     Dr. Langan testified that Bella was euthanized on September 5, 2014, because of “economics”. Without the surgery Bella would always be a “gimped horse.” She could never become a normal horse, a performance or riding horse and “it wasn’t a practical animal to. . . try and save.”

[265]     Constable Edge, however, believed that Bella was in a lot of pain because of her deformed front limb. She said in her examination-in-chief:

[266]     Constable Edge believed that Bella’s deformed limbs made it very painful for her to walk. She was wrong.

[267]     Bella was not in distress on September 5, 2014, in the sense that she was “injured, sick, in pain or suffering” or that she was deprived of adequate veterinary care. Bella had ample food and water. She was in an isolated paddock with Kelly and therefore not subject to the hazards presented by debris in the pasture. I find the Crown has failed to prove on either the civil or the criminal standard that Bella was in distress during the relevant period.

[268]     Ms. Scott knew Rosie had to be euthanized at some point, but whenever she turned her mind to it, Rosie would rally. Rosie was her pet and companion and Ms. Scott didn’t want to kill her if she wasn’t truly in pain. From Ms. Scott’s perspective, Rosie was not behaving as though she were in chronic pain. She states:

[269]     Dr. Langan said that typically when she gets a foundered horse, she checks them again in 7, 14 and 30 days. If, by day seven things “aren’t looking good”, she will discuss euthanasia with the owner. Ms. Scott was in contact with Dr. Langan after September 17, 2013 for various reasons, including blood tests and antibiotics. There is no clear evidence of Dr. Langan advising Ms. Scott she wished to re-examine Rosie to monitor the progress of her founder. In any event, in the fall of 2013, Rosie was nursing Handsome, so euthanasia was not an option. Dr. Langan’s 7, 14 and 30 day schedule would have no application.

[270]     Ms. Scott utilized homeopathic remedies to relieve Rosie’s foot problems. For example, one of Rosie’s front feet abscessed when a marble-sized rock went through the wall of her hoof, causing it to split, before coming out the top. Ms. Scott treated it with dry sap to stop the bleeding. This was an herbal remedy handed down from Ms. Scott’s grandmother, who was a medicine woman in Prince George. When Rosie was too tender to have farrier’s work on her feet, Ms. Scott waited until Rosie was lying down and tended to Rosie’s hooves herself.

[271]     Because Rosie was weaker, Ms. Scott separated her and Handsome from the other horses so she would not get picked on. Ms. Scott stopped using Rosie as a riding horse when her feet problems intensified, but kept her as a pet and a companion. Rosie spent her day grazing, drinking water, walking up and down the pasture and socializing through the fence with other horses. Ms. Scott had a close relationship with Rosie. She tried to make Rosie as comfortable as she could as her condition worsened, but was not convinced until the end of August 2014, that Rosie ought to be euthanized.

[272]     Dr. Langan acknowledged that Ms. Scott complied with her veterinary advice of September 17th, 2013. In particular, Ms. Scott had obtained antibiotics; nutritional supplements. She appears to have overlooked the fact Ms. Scott also purchased and administered the anti-inflammatories and blood tests.

[273]     Dr. Langan expressed the view that Rosie’s condition in August 2014, was “naturally caused by neglect.” She says this because “There was no follow-up.” Dr. Langan did not fully articulate what she meant by that comment. I assume from her evidence this referred to the lack of specialized farrier care. As to “follow up” with her, there is no evidence of Dr. Langan putting into place any set schedule for return visits. Rosie was nursing Handsome, so the options for medication and treatment were limited. I do not even know how long Rosie nursed Handsome or whether this was still the situation when the horses were relocated to Mr. Kopetski’s farm.

[274]     I note that in August 2014, Dr. Langan had not seen Rosie nor had she spoken with Ms. Scott about Rosie since 2013. Dr. Langan testified that Rosie “was not very mobile either because she is always laying from being foundered.” Ms. Scott said this was not true, that Rosie walked a kilometre a day until she was euthanized. I note that on September 5, 2014, Dr. Langan found Rosie to be suffering from an abscess in the sole of her foot. Constable Edge gave the following evidence about abscesses:

[275]     I accept that if Rosie was suffering from sole abscesses on September 5, 2014, that she would be in pain and immobile on that day. I note, however, none of the photographs taken before the BC SPCA’s intervention on September 5, 2014, depicts Rosie laying down.

[276]     Rosie was suffering from a serious debilitating condition that was difficult and expensive to treat and manage. As Doctor Langan testified, even with the application of daily poultices, specialized and frequent farrier work, “we don't win with these horses.”

[277]     By the end of August, 2014, Ms. Scott accepted Rosie had to be euthanized and conveyed this to Constable Edge. Initially, Mr. Scott committed to euthanizing Rosie until on September 1, 2014, when he received his own fatal diagnosis. At that time, Ms. Scott made other arrangements to have Rosie euthanized. This was too late for Constable Edge who took matters into her own hands on September 5, 2014.

[278]     It is uncontested that Ms. Scott did not cause Rosie to be in distress. After considering all the evidence from all the witnesses, I do not find the Crown has proven beyond a reasonable doubt that Ms. Scott permitted Rosie to continue in distress.

[279]     I did not find Handsome to be in distress, however, if I am wrong about that, I will consider whether Ms. Scott caused him or allowed him to be in distress between September 17, 2013 and September 5, 2014.

[280]     Although Handsome was arguably in distress when nursing because of Rosie’s medical problems, Ms. Scott took steps to address Handsome’s failure to thrive. She retained a veterinarian to examine Handsome and Rosie and followed the veterinarian’s advice as to providing Handsome with supplements and as a result, Handsome gained weight and became a healthy colt.

[281]     Handsome also developed an umbilical hernia which increased in size as he grew. He was in no immediate danger or pain as a result of this hernia, but at one point it needed to be repaired. In August and September 2014, Ms. Scott was in the process of making arrangements for Dr. Langan to surgically repair the hernia. Constable Edge determined Handsome was in distress and seized him before Ms. Scott’s plans came into fruition. Constable Edge’s actions were predicated on her erroneous view that Handsome’s hernia was potentially lethal and in danger of rupturing.

[282]     If Handsome was in distress, which I do not find, Ms. Scott did not cause him or allow him to be or continue to be in distress.

[283]     I have found that Ms. Scott did not have custody or control of Kelly and hence not a person responsible for Kelly. I do not know who was responsible for or even owned Kelly while she was boarded at Joe Kopetski’s farm between November 2013 and June 2014.

[284]     I accept that Ms. Scott took turns feeding and watering all the horses in the summer of 2014, and that Kelly would have been part of that herd. There is no evidence or suggestion that Ms. Scott selectively denied Kelly food or water. Dr. Langan attributed Kelly’s poor body condition to the fact she had just foaled out, was foundered and in pain. She determined Kelly needed to be euthanized, but this could not happen in the summer while Kelly was nursing Bella. If Kelly died, so would her foal.

[285]     Ms. Scott did not know Kelly was foundered nor did she believe Kelly was lame or in pain. In other words, Ms. Scott seemed unaware that Kelly was in distress.

[286]     I understand that by August 12, 2014, Kelly was suffering from an advanced stage of laminitis and/or navicular. It is difficult to know what it was that Ms. Scott could have done between July 1, 2014 and September 5, 2014, to alleviate Kelly’s condition. Because she was nursing Bella she could not be euthanized or heavily medicated. I would think if there was something that could have been done in that ten week period, then Kelly would not have been in critical distress.

[287]     I find the Crown has failed to prove beyond a reasonable doubt that Ms. Scott caused or allowed Kelly to be in distress during the offence period.

[288]     I have already found Bella was not in distress. If I am wrong about that, I will consider whether or not Ms. Scott allowed Bella to be in distress.

[289]     Bella was born with an angular deformity. It did not cause her pain or discomfort; it simply made her less valuable as a riding or performance horse. Ms. Scott said after she was born, attempts were made to correct Bella’s deformity by binding her leg. When this didn’t work she had Dr. Langan examine Bella. Dr. Langan conducted a distance assessment of Bella on August 12, 2014, and concluded she would require surgery to correct the deformity. Ms. Scott told Dr. Langan she was going to get the money together so Bella could have the surgery. Ms. Scott contacted the Murdoch Veterinarian Clinic in Prince George to discuss the surgery.

[290]     Under pressure from Constable Edge, the Scotts agreed to euthanize Bella. When they could not do so immediately, Constable Edge arranged it for them. Bella was not euthanized because she was in pain or distress or because the Scotts were not seeking the veterinarian attention she needed. Bella was euthanized because as a nursing foal she could not survive without Kelly. If Bella was in distress on September 5, 2014, then the BC SPCA created the distress by destroying Kelly before Bella was weaned.

[291]     The Crown has failed to prove beyond a reasonable doubt that Ms. Scott caused or allowed Bella to continue to be in distress.

[292]     In the event I am wrong in my conclusions that Bella and Handsome were not in distress or that Ms. Scott did not cause or allow any of Rosie, Kelly, Bella and Handsome to be in distress during the offence period, I will consider if Ms. Scott exercised due diligence in alleviating or attempting to alleviate the distress.

[293]     Due diligence means the absence of negligence. It requires a person to take all due care in the circumstances, to avoid or prevent the offence taking place: R. v. Chapin, 1979 CanLII 33 (SCC). Dickson, J.A. further clarified the applicable standard at page 134:

[294]     The Crown acknowledges Ms. Scott did not cause any of the horses to be in distress, but says that Ms. Scott was over-extended personally and financially and did not have the resources to properly care for the horses. The Crown argues those wishing to have animals need sufficient finances to provide them with the necessities of life, which includes veterinarian care. Although I agree with this proposition in principle, I do not believe it was the intent of the legislators who enacted the PCA Act to preclude poor people or people of modest means from having pets. After all poor people have children, who society generally considers more precious than animals. No one expects parents to have unlimited resources before they are permitted to have children and I do believe the legislature intended a more rigorous standard for pets. People can fall on hard times or are simply of limited means, as in the case of accused in R. v. Fountain, 2013 BCPC 193 (CanLII), 2013 BCPC 0193.

[295]     So, what is the standard of care for a reasonable horse owner in the circumstances? In Fountain (at para. 36) Judge Frame held a person charged with an offence under s. 24(1) of the PCA Act, can avoid liability by proving he or she took all reasonable care in the circumstances. Can this be said of Ms. Scott? This assessment cannot be made without some understanding of the non-performance horse culture.

[296]     In many respects, Mr. MacNaughton’s evidence corroborates Ms. Scott’s approach to horse husbandry. Mr. MacNaughton owns a small acreage locally on which he keeps nine horses. He is not a veterinarian, but provides all manner of services to his horse clients, which include: (a) farrier services; (b) treating cuts and injuries not requiring a veterinarian; (c) treating abscesses; (d) deworming and delousing. He also treats horses with founder or navicular. Mr. MacNaughton offered the following observations and comments on some of the issues raised in these proceedings:

[297]     For the reasons set out above, I find Ms. Scott did provide the horses with adequate food and water. There was a dearth of evidence about what shelter did or did not exist, its adequacy, or lack thereof.

[298]     Dr. Langan testified that she thought Ms. Scott called a farrier on one occasion between September 17, 2013 and September 5, 2014, and that Kelly’s hooves had not been trimmed for over a year. This evidence is contradicted by Ms. Scott. Mr. MacNaughton reviewed Exhibit 1 and opined there was three months growth on Rosie’s hooves and six to eight months on Kelly’s: Exhibit 1, p. 124 DSC_0130 and DSC_ 131; pp. 127-128, DSC_0136 - DSC_0139. In this regard, I accept the evidence of Mr. MacNaughton over that of Dr. Langan. Still, I accept that on August 31, 2014 and September 5, 2014, Rosie and Kelly’s hooves were in poor shape.

[299]     The Scotts boarded their herd at Joe Kopetski’s farm from November 2013 to June 2014. Mr. Kopetski arranged for the horses’ farrier care and the Scotts reimbursed him for this expense. Mr. MacNaughton knows Mr. Kopetski and has provided farrier services to him for years. There is no suggestion this was not an appropriate arrangement for the horses.

[300]     The Scotts returned their horses to 5019 Browning Road in the summer of 2014, because they thought it would be better for them.

[301]     I find the Scotts did obtain farrier services for their horses between September 17, 2013 and September 5, 2014, including those arranged by Mr. Kopetski. I do not find this was every six to eight weeks, as Ms. Scott asserts nor do I accept Dr. Langan’s view it was only once in that period. Ms. Scott also said she provided her own farrier work when Rosie became too sensitive to have others touch her feet. Mr. MacNaughton confirmed that experienced horse owners do trim their own horses’ hooves. Mr. MacNaughton also testified that he is able to persuade uncooperative horses such as Rosie to allow him to trim their feet. He has a technique for addressing “windswept legs” early on. Perhaps if Ms. Scott had arranged for Mr. MacNaughton to attend to the horses in the summer of 2014 after they returned to 5019 Browning Road, the severity of horses’ conditions may have lessened. Having said that, I do not believe that Rosie and Kelly’s distress was solely attributable to a lack of farrier work, but rather a combination of their founder/laminitis/navicular, which intense farrier work would likely have ameliorated to some extent. Although Ms. Scott made some efforts to provide farrier care for her horses, she did not do so consistently in an effective and timely manner. As I have already indicated, it seems unlikely that farrier work during the ten week offence period would have forestalled the natural progression of Kelly’s disease.

[302]     Ms. Scott testified to her efforts to control the bot eggs. Dr. Langan did not express any significant concern as to their presence. I find Constable Edge exaggerated the adverse effects of the bot egg. I do not find Ms. Scott fell below some recognized standard of care for controlling bot infestation in horses.

[303]     There is no doubt in the offence period there was debris in the Scott field. The most serious by far was the corpse of the Scott’s burned house and the collapsed outbuilding. Ms. Scott said it was supposed to be removed by the insurer, who was dilatory in doing so. Instead of removing the debris herself, which would likely have been expensive and time consuming, she fenced it off. This makes sense. Where Ms. Scott attention lapsed, was ensuring the fence was adequate to keep the horses out of the condemned area. Still, the horses were only in the vicinity of that debris for a two to three month period in the summer of 2014 after they returned to 2015 Browning Road. No horses were hurt as a result of this situation. The existence of this debris had no bearing on Rosie, Kelly, Handsome or Bella being in distress.

[304]     Albeit after the offence date, Ms. Scott removed the binder twine in the field, fenced off the collapsed structure and fixed her fence, all to Constable Edge’s satisfaction immediately upon been ordered to do so.

[305]     Ms. Scott testified of her efforts in 2013 to address Rosie and Handsome’s poor body condition. There is ample evidence that in the fall of 2013, Ms. Scott retained a veterinarian to assess Rosie and Handsome and followed her advice. Ms. Scott also complied with Constable Edge’s various other orders set out in BC SPCA Order 016712.

[306]     Ms. Scott was a person of modest means who kept some horses for light riding and pets. The evidence before me shows that she fed, watered pastured and generally cared for her horses. She relied on homeopathic remedies and self-help to treat their various maladies; she called a veterinarian as needed. I have heard no evidence to suggest Ms. Scott’s homeopathic remedies were inappropriate or unhelpful.

[307]     Euthanasia was the ultimate solution to horses with debilitating conditions that the owners cannot afford to intensely manage or when such management is ineffective. Rosie could not be euthanized in 2013 because she was nursing Handsome and Kelly could not be euthanized in the 2014 because she was nursing Bella.

[308]     Ms. Scott thought about euthanizing Rosie when she was looking miserable, but then she would rally and Ms. Scott decided to give her more time. By the end of August 2014, Ms. Scott agreed that it was time for Rosie to go to sleep.

[309]     Assessing the evidence as whole, as I am obligated to do, I find Ms. Scott has proven, on a balance of probabilities she exercised due diligence in preventing the horses from continuing to be in distress. In reaching this conclusion I have taken into consideration all the evidence at trial and in particular, the following:

[310]     The Crown has the burden of proving the essential elements of the charges, which it has failed to do. Accordingly, I find Ms. Scott not guilty of causing or allowing horses for which she was responsible to be or continue to be in distress contrary to s. 24(1) of the Prevention of Cruelty to Animals Act, R.S.B.C. 1996, c. 372.