Wednesday, April 6, 2011

Lawyers Target OSPCA For What They Consider Illegal Investigation & Harassment

OSPCA case stayed for Charter violations 


IROQUOIS — By all accounts Ralph Hunter of Iroquois doesn’t beat his dogs with 2 by 4’s or dismember little kittens but over-zealousness and the interpretation of standard of care seems to have caused him a heap of heartache.

If not an outright victory for farmers across the province, the outcome of an animal abuse case heard last month in a Cornwall court is at least a reminder to the Ontario Society for the Prevention of Cruelty to Animals that charter rights cannot be violated.

Charges against Ralph Hunter under the Ontario Society For the Prevention of Cruelty to Animals Act , were stayed on February 23, 2011 under section 8 of the Charter of Rights and Freedoms.

Lawyers for Hunter, whose farm was raided by OSPCA staff and the OPP on July 7, 2009, applied for a charter violation. "What we discovered after disclosure was that the investigation was done illegally," lawyer Kurtis Andrews of Nepean, told The AgriNews. Seen by the bench as a violation of the charter, and in the interest of the public and Hunter, all evidence gathered could not be used at trial, he said.

Those illegalities include how the warrant to investigate and raid the farm was obtained as well as coercion to seize animals without the proper consent of the owner. Told he could avoid charges if he consented to the removal of the animals, Ralph Hunter did so only after the animals had left his farm, and having never being allowed to see what animals OSPCA staff had loaded on the truck. According to Andrews, that consent, made under duress, was self-incriminating and could have been seen as an admission of guilt or used against him in court.

In spite of his efforts, Hunter was still eventually charged under the Act and adding insult to injury had to pay more than $200 in shipping and boarding fees for the return of a buckskin horse, one of two animals loaded onto the truck by mistake. Given that error many people close to the case beg the question, how carefully did OSPCA investigators, and an outside veterinarian who accompanied them, evaluate the condition of the animals they seized?

As well as intimidating Hunter into consenting to the removal of his animals, defence submissions to the court revealed misleading information given to the Justice of the Peace that could have prevent him from making a fair and full determination in the issuing of the warrant. OSPCA staff indicated there was no house on the farm property and so were unable to speak with the property owners. Staff had in fact spoken several times with Ralph Hunter and knew that he had lived with his mother for many years on a separate parcel of land directly across the road from the farm.

The outcome of the charges against him could have proved significant. Though not criminal offences, eight of the 14 charges under the provincial act might have netted Hunter $60,000 in fines and two years’ probation for each charge. The Crown was also asking for a life-long ban on owning animals which was equally problematic, says Andrews, as this would have impeded Hunter’s ability to make a living as he also has a beef herd.

Those charges fall under two sections of the Act calling for compliance within a prescribed standard of care and to not cause an animal to be in distress. Animals removed from the Hunter farm included several dogs, a horse whose hooves were deemed to be too long and an old horse with poor body condition. Admittedly, standard of care and what constitutes distress is subjective and can be difficult to deal with from a legal perspective, says Andrews.

Animal abuse is a heinous crime and to protect the welfare of animals the Act includes some fairly wide and far-reaching powers. But, with those far-reaching powers, says Andrews, comes a responsibility on the part of the OSPCA to understand the law. Only in matters of urgent, extreme circumstances with animals in emanate distress, and under certain criteria can OSPCA staff tread on private property without a properly obtained warrant.

That criteria includes the written advisement of a veterinarian, the inability of staff to locate the property owner and the non-compliance of an order issued by the OSPCA. Previous compliance orders issued to Hunter included things like removal of manure-pack, hoof trimming and housing. According to Linda Hunter, speaking on behalf of the family, her brother had been doing his best to meet compliance orders and requests from the OSPCA. "It was never good enough for her," she says of the investigator.

If a written advisement from the veterinarian who accompanied the OSPCA on the day of the raid was supplied Andrews says he was never made aware of it. Hunter’s lawyers did however obtain an affidavit from the family vet stating the animals were not in jeopardy .

It remains unclear whether the actions of the OSPCA were due to over-zealousness or ignorance of the law. But, after questioning OSPCA staff in court, Andrews says, "the investigators don’t know their own legislation."

The dramatic July 7, 2009 raid included police cruisers, several white OSPCA vehicles, farming neighbours and a gaggle of on-lookers. This was particularly distressing for his 86-year-old mother, says Linda Hunter. Stressful, costly and very embarrassing is how she describes the raid, seizure of animals and ensuing charges. She says OSPCA staff behaviour was disrespectful and brazen. Reluctant to give up a dog that had been on the farm for a very long time she says OSPCA staff relented provided the Hunters obtained an evaluation from a third-party vet.

How this reflects on the credibility of their own veterinarian is not lost on Linda Hunter. "Mr. Hunter did everything right that he could have done on that day," says Andrews of the raid. He called his own veterinarian, he called in other people, in this case members of the Ontario Landowners Association. Andrews stresses the importance of having someone on hand in cases like this. Farmers have "half a chance" of defending their rights if they have someone they can trust to act as a witness.

The judge’s finding last month brought little relief as the Hunter family anticipate the issue is not over. "She’ll be back," says Linda of OSPCA investigator Bonnie Bishop. 

Read more here. 

*As yet, there has been no response from the OSPCA.