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Thursday, February 4, 2010
Wednesday, December 16, 2009
Update
Digby Court Pretrial : May 18th 2010 --> trial is set for Oct 19-26 2010
The two have made headlines over the years for running a puppy mill and have previously been convicted of animal cruelty charges.
A former customer, Esther Smith, whose dog died hours after it was bought, says they shouldn't even be allowed to own a goldfish when this is over." source: ttp://www.k-rock893.com/index.asp?mn=2&id=240&cc=2
Friday, October 23, 2009
Between: Her Cite as: R. v. Bailey, 2009 NSPC 3
Majesty The Queen v. Dana Bailey and Gail Benoit
Details here :
D E C I S I O N
~~~~>below is snipped from above document.
FINDINGS
A) Abuse of process
[42] Pursuant to s.12(4) of the ACPA, Mr. Joyce and Ms Noel, peace officers within the meaning of that Act, have powers to investigate allegations of cruelty to animals. They did so, by obtaining a warrant as per the provisions of s. 2B of the Summary Proceedings Act, RSNS 1989, c. 450.
[43] Their grounds to obtain such a warrant were provided by Ms. Nugent, who was very specific and detailed in her description of the two puppies, their dirty state, protruding bellies and anuses, the mite poop present in their ears, and the bite marks on their bellies. Mr. Joyce believed her and started the proceeding. There is nothing irregular in this.
[44] At trial, it is clear Ms Nugent has been campaigning against Ms Benoit for some times, for what she sees as animal abuse. There is no evidence that aspect was known to Mr. Joyce, who acted in good faith, in accordance with his duties.
[45] There was reasonable ground for Mr. Joyce to investigate, and he did so in accordance with his authorizing Statute.
[46] In executing the first Search Warrant, the officers obtained further evidence of animals in distress (lack of adequate care, food, water or shelter, s. 2(2)(a) of ACPA. They thus obtained another Search Warrant to seize those animals. ACPA only provides for such eventuality in the case of a dwelling house, but not other buildings (s. 12).
[47] A great deal of time has been expended on whether the SPCA was in effect retaliating for being the defendant in a civil lawsuit. There is no evidence to conclude that it did, and that its actions, through its officers, were improper. Mr. Joyce and Ms Noel were aware of the previous proceedings, but only superficially; they did not know the defendants personally; and acted on the reasonable rounds provided or obtained, and nothing more. The Society has a duty and the powers to prevent cruelty to animals, and may act when it has reasonable grounds to act. It had in this case. It may appear suspicious, but only to the defendants.
[48] It is also argued that there is abuse, given the campaign Ms. Nugent has waged against Ms Benoit, on the Internet, through e-mails. Some samples were provided. It is clear she is an advocate for the propre care of animals, and is outspoken about it; yet her observations of the puppies were detailed and accurate, appeared to come from an informed observer, who also testified at trial, and are worthy of belief, providing reasonable grounds to initiate the investigation.
[49] There is no evidence that the SPCA was in anyway aware of, or a party, to Ms. Nugent’s campaign. R. v. Shirose [1999] 1 S.C.R. 565, dealing with a police’s reverse-sting operation, to sell drug to the accused, amounting to drug trafficking, but has no application to the case at bar.
[50] The Crown, in the previous proceedings, exercised its discretion to stay the proceedings, at the third trial, and did so on reasonable and substantial grounds (substantial court time; a possible $200.00 fine; no expectation of further prohibition). It is not evidence of abuse of process.
[51] It is also argued that the role of the SPCA is that of a conciliator, not a prosecutor, at least at the beginning of an investigation (s. 12(2), ACPA). Indeed there is evidence that the Society has done that with other defendants. On the facts of this case, however, the defendants have clearly stated in September 2007, when this was attempted, that the only way the officers would be able to continue to discharge their duty was through a Search Warrant, and the defendants have been vocal and abusive in conveying this message. The officers were aware of this position. On both the 24th and 26th of October, 2007, both defendants, and Ms Benoit, particularly, adopted that same abusive attitude, preempting any useful dialogue and conciliation. The officers were justified in acting more forcefully. Indeed, the defendants’ behaviour forestalled any other avenue.
[52] On the evidence, this is only the second prosecution against the defendants, by the SPCA, on different allegations of cruelty, the first one really being only one cause, with two trials and two appeals. Given the numbers of puppies Ms Benoit claims to sell, about 200 per month, or some twenty-eight to thirty thousands up to October 2007, this could hardly be abuse of process. Above all, present were the necessary reasonable grounds for the officers to act.
[53] There is no “...affront to fair play and decency ...disproportionate to the societal interest in the effective prosecution “ in this case (R. v. Conway [1989] 1 S.C.R. 1659). There is no abuse of process. It is a justifiable prosecution under a provincial statute, for allegations, founded on reasonable grounds, of animals in distress.
B) Animals in distress
[54] I will deal with the charge contrary to s. 11(2) of ACPA: that the defendants,
between the 24th and 26th days of October, 2007, did, being an owner of an animal
or persons in charge of animals, to wit, puppies/dogs, cause or permit said animals to be in distress. [I have amended and pluralized “persons” and “animals” , to reflect the evidence, as per s. 601, Criminal Code of Canada, R.S.C. 1985, Chap. C-46, see R.v. Wallace, 2002 Carswell NS 158].
[55] S. 2 (2) of the same Act provides that [a]n animal is in distress ... where the animal is (a) in need of adequate care, food, water or shelter; or (b) injured, sick, in pain, or suffering undue hardship, privation or neglect.
[56] The defendants say that the animals in their care were not in distress, were well taken care of in the short time they were in their possession; they knew about the possible health issues to which puppies are exposed, but these were not present; and they relied on their owner’s representation of any treatment, which, they say, they had received.
[57] Both Mr. Joyce and Ms Noel saw, upon seizure, that the puppies were in distress: distended (swollen) bellies, protruding anuses, lack of water and/or food, dirty cages/kennels/boxes. The conditions were not terrible, but below reasonable standards, and not treated. Indeed, after proper diagnostic and care, the puppies mended quickly, within a few days.
[58] The defendants attack the credibility of not only the officers, but also of Dr. Carnegie, their veterinarian, since he is paid by the Society, and thus biased, they say.
[59] Dr. Carnegie’s evidence was straightforward, knowledgeable. He formulated his opinion from well observed facts. I have no hesitation to accept it as factual and truthful. It is his business, his profession, and he brings to it the necessary independence of mind, and objectivity.
[60] His evidence shows without a doubt these puppies were in distress from a physiological point of view, unnecessarily so as the cure was simple, inexpensive, and very effective, over a very short time. Such a distress could easily have been prevented, by a timely assessment and actions.
[61] He observed puppies that had been neglected and were in a distressful state given the obvious symptoms: pot belly, lack of body fat, poor physical appearance, presence of adult parasites, diarrhea, what could be described as a listless attitude, the straining for bowel movement. All were due to poor hygiene and lack of care. Once proper hygiene, food and water, and medication were administered, he said, their state changed drastically and rapidly.
[62] I reject the defendants’ evidence on that point. Specifically, the extended bellies were not caused by overfeeding, but by worms, or other conditions, which had not been treated. Indeed Mrs Harlowe’s evidence -- she is the owner of the two puppies, the subject matter of the first Warrant --is specific: I never wormed them... All dogs have worms... I did not say I had wormed them, to Gail [Benoit]. This contradicts the defendants’ evidence. All the evidence, including that of Dr. Carnegie, contradicts that of the defendants on that point as well. I find that the puppies were in distress, as defined in subsections (a) and (b) of s. 2(2) of the Act: they lacked food and water and were suffering from privation and neglect.
C) Mistake of fact and due diligence
[63] This is a strict liability offence: R. v. Sault Ste Marie (City of) (1976), 30 C.C.C. (2d) 257, affd [1978] 2 S.C.R. 1299. The defendants may establish a defence of mistake of fact or due diligence, on a balance of probabilities. The ultimate burden of proof always rests on the shoulders of the Crown to prove its case beyond a reasonable doubt.
[64] With respect to the defendants’ belief that the puppies were fine, if such was argued as a mistake of fact, it would be unjustified. Both have enough experience in their business to know the symptoms of the presence of parasites; they should have been able to identify them. They did not. Indeed they deny the existence of their actual state. Yet their presence were visible to any informed observer. There is no a mistake of fact.
[65] On first observation during the execution of the Search Warrants, Mr. Joyce and Ms Noel remarked on the lack of food and water, the feces on the newspaper used for bedding. Mr. Bailey said it was his responsibility to look after the puppies, and did so regularly. The defendants presented photographs of the same kennels/cages, showing them to be clean and properly bedded. I do not accept Mr. Bailey’s evidence on that point. That was not their condition at the time of the officers’ observation.
[66] Obviously, conditions will change hourly, and the defendants are not held to a standard of perfection. Puppies will drink the water provided, eat their food, urinate and defecate, at any time. A person in charge is not expected to provide actual care 24 hours a day, only reasonable care.
[67] It is clear, from the evidence, puppies ought to have water at all times. They ought to live in a clean environment. They did not, except for the German Shepherd. The defendants did not have a system in place to ensure they were cared for properly, particularly during daylight hours. Nor was there any provision for a some liquid replacement for Ms. Harlowe’s puppies, which had been weaned from their mother’s milk at home.
[68] The defendants are experienced dog owners. To all appearances they keep their own, in the house, very well. Obviously the defendants used very different standards when it came to the puppies kept in their business of “dog broker”, and did not provide the same quality of care.
[69] Knowing that all dogs have parasites, one would expect the defendants, due to their extensive experience, to assess accurately the presence of worms and other parasites, and take necessary precautions to deal with the presence of such parasites. They may rely on the representations of their owners; yet are not absolved from using their own experience and observation, and assess accurately the conditions of the animals. They may need professional assistance. It is their decision. But they ought to inspect objectively each animal brought into their care, and have a plan in place to remedy any identified issues.
[70] Given the numbers of puppies they deal with, at the minimum they ought to examine and assess each puppy’s physical state (weights, size, age), and health status, record these and any other relevant observations they may make. Photos, given the ease of doing so now with digital equipment, may help them. They did nothing of the sort. Indeed the defendants ignored the state of health of their charge, and were blind to their most basic needs. I do not accept their evidence there was no problem. The evidence is overwhelming: the puppies were in need of food, water, care and attention of a veterinary.
[71] The defendants simply ignored the obvious signs, hoping for a quick turnaround, and a quick profit -- which could be considerable -- with little investment on their part but for some effort and time. They apparently did not even have a single dose of the most popular and common medication to administer to these puppies, and did not take any step to ascertain their needs. They did not show due diligence to avoid the commission to the actus reus of the offence.
[72] At the very least, in light of the number of puppies/dogs they handle, coming from different homes, and the known risks of infection, they ought to consider a practice, such as the one at the SPCA kennel: institute a cleaning cycle, to prevent or protect the dogs and puppies from worms: day one, bleach and water, the second day a chemical is used to deal with parasites; and that cycle is repeated every two days along with daily cleaning.
[73] Their asking prices appear to be several hundred dollars per puppy. Their cost, on the evidence, one to two hundred dollars. It is thus a profitable business, with little overhead when the puppies are taken on consignment, and little work if they are not looked after properly. The defendants have allowed the pursuit of easy profits to trump the proper supervision and care for the well being of these puppies.
D) Assault and Interference
[74] Ms Noel was a peace officer, in the execution of her duties, pursuant to ACPA. Ms Benoit knew it. Faced with a Search Warrant, lawfully issued, Ms. Benoit had to comply. She could argue later, in court, any legal issues. In fact she was not objecting as to its legality, only that, in an emotional outburst, she did not agree with the presence of the officers on her property, and barred Ms Noel from coming into the home. A Search Warrant does not depend on the permission of the landowner for its execution; indeed it supercedes that right. I accept the evidence of Ms Noel on that point. Ms Benoit was unfortunately too emotional then and at trial, for a trier of fact to rely on the accuracy of her recall.
[75] In effect, Ms Benoit acknowledges the assault against Ms Noel, on the 24th of October 2007, by saying, at para 36 above, “If she had tackled Ms. Noel she would have felt it. If she did step on Ms. Noel’s foot, it is nowhere near what they put us through”. Ms Noel felt both. Indeed, on the whole of the evidence, I find that Ms Benoit, in anger, stepped on Ms Noel’s foot and pushed her with her left shoulder.
CONCLUSIONS
[76] The Application for a Judicial Stay is dismissed as there is no abuse of process.
[77] On the totality of the evidence, the Crown has proven, beyond a reasonable doubt, that the defendants, as persons in charge, have breached s. 11(2) of the ACPA.
[78] Pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729, since the charges pursuant to s. 446(1)(b) [my amendment] of C.C.C., or s. 11(1) of ACPA describes substantially the same delict, a stay is ordered to avoid double jeopardy.
[79] The Crown has also established, beyond a reasonable doubt, that Ms Benoit has committed the offences, as charged, contrary to ss. 270 and 129 of the Criminal Code of Canada.
[80] Therefore, I find Ms Benoit guilty of these two criminal offences. I find both defendants guilty of the provincial offence contrary to s. 11(2) of the ACPA.
A) Abuse of process
[42] Pursuant to s.12(4) of the ACPA, Mr. Joyce and Ms Noel, peace officers within the meaning of that Act, have powers to investigate allegations of cruelty to animals. They did so, by obtaining a warrant as per the provisions of s. 2B of the Summary Proceedings Act, RSNS 1989, c. 450.
[43] Their grounds to obtain such a warrant were provided by Ms. Nugent, who was very specific and detailed in her description of the two puppies, their dirty state, protruding bellies and anuses, the mite poop present in their ears, and the bite marks on their bellies. Mr. Joyce believed her and started the proceeding. There is nothing irregular in this.
[44] At trial, it is clear Ms Nugent has been campaigning against Ms Benoit for some times, for what she sees as animal abuse. There is no evidence that aspect was known to Mr. Joyce, who acted in good faith, in accordance with his duties.
[45] There was reasonable ground for Mr. Joyce to investigate, and he did so in accordance with his authorizing Statute.
[46] In executing the first Search Warrant, the officers obtained further evidence of animals in distress (lack of adequate care, food, water or shelter, s. 2(2)(a) of ACPA. They thus obtained another Search Warrant to seize those animals. ACPA only provides for such eventuality in the case of a dwelling house, but not other buildings (s. 12).
[47] A great deal of time has been expended on whether the SPCA was in effect retaliating for being the defendant in a civil lawsuit. There is no evidence to conclude that it did, and that its actions, through its officers, were improper. Mr. Joyce and Ms Noel were aware of the previous proceedings, but only superficially; they did not know the defendants personally; and acted on the reasonable rounds provided or obtained, and nothing more. The Society has a duty and the powers to prevent cruelty to animals, and may act when it has reasonable grounds to act. It had in this case. It may appear suspicious, but only to the defendants.
[48] It is also argued that there is abuse, given the campaign Ms. Nugent has waged against Ms Benoit, on the Internet, through e-mails. Some samples were provided. It is clear she is an advocate for the propre care of animals, and is outspoken about it; yet her observations of the puppies were detailed and accurate, appeared to come from an informed observer, who also testified at trial, and are worthy of belief, providing reasonable grounds to initiate the investigation.
[49] There is no evidence that the SPCA was in anyway aware of, or a party, to Ms. Nugent’s campaign. R. v. Shirose [1999] 1 S.C.R. 565, dealing with a police’s reverse-sting operation, to sell drug to the accused, amounting to drug trafficking, but has no application to the case at bar.
[50] The Crown, in the previous proceedings, exercised its discretion to stay the proceedings, at the third trial, and did so on reasonable and substantial grounds (substantial court time; a possible $200.00 fine; no expectation of further prohibition). It is not evidence of abuse of process.
[51] It is also argued that the role of the SPCA is that of a conciliator, not a prosecutor, at least at the beginning of an investigation (s. 12(2), ACPA). Indeed there is evidence that the Society has done that with other defendants. On the facts of this case, however, the defendants have clearly stated in September 2007, when this was attempted, that the only way the officers would be able to continue to discharge their duty was through a Search Warrant, and the defendants have been vocal and abusive in conveying this message. The officers were aware of this position. On both the 24th and 26th of October, 2007, both defendants, and Ms Benoit, particularly, adopted that same abusive attitude, preempting any useful dialogue and conciliation. The officers were justified in acting more forcefully. Indeed, the defendants’ behaviour forestalled any other avenue.
[52] On the evidence, this is only the second prosecution against the defendants, by the SPCA, on different allegations of cruelty, the first one really being only one cause, with two trials and two appeals. Given the numbers of puppies Ms Benoit claims to sell, about 200 per month, or some twenty-eight to thirty thousands up to October 2007, this could hardly be abuse of process. Above all, present were the necessary reasonable grounds for the officers to act.
[53] There is no “...affront to fair play and decency ...disproportionate to the societal interest in the effective prosecution “ in this case (R. v. Conway [1989] 1 S.C.R. 1659). There is no abuse of process. It is a justifiable prosecution under a provincial statute, for allegations, founded on reasonable grounds, of animals in distress.
B) Animals in distress
[54] I will deal with the charge contrary to s. 11(2) of ACPA: that the defendants,
between the 24th and 26th days of October, 2007, did, being an owner of an animal
or persons in charge of animals, to wit, puppies/dogs, cause or permit said animals to be in distress. [I have amended and pluralized “persons” and “animals” , to reflect the evidence, as per s. 601, Criminal Code of Canada, R.S.C. 1985, Chap. C-46, see R.v. Wallace, 2002 Carswell NS 158].
[55] S. 2 (2) of the same Act provides that [a]n animal is in distress ... where the animal is (a) in need of adequate care, food, water or shelter; or (b) injured, sick, in pain, or suffering undue hardship, privation or neglect.
[56] The defendants say that the animals in their care were not in distress, were well taken care of in the short time they were in their possession; they knew about the possible health issues to which puppies are exposed, but these were not present; and they relied on their owner’s representation of any treatment, which, they say, they had received.
[57] Both Mr. Joyce and Ms Noel saw, upon seizure, that the puppies were in distress: distended (swollen) bellies, protruding anuses, lack of water and/or food, dirty cages/kennels/boxes. The conditions were not terrible, but below reasonable standards, and not treated. Indeed, after proper diagnostic and care, the puppies mended quickly, within a few days.
[58] The defendants attack the credibility of not only the officers, but also of Dr. Carnegie, their veterinarian, since he is paid by the Society, and thus biased, they say.
[59] Dr. Carnegie’s evidence was straightforward, knowledgeable. He formulated his opinion from well observed facts. I have no hesitation to accept it as factual and truthful. It is his business, his profession, and he brings to it the necessary independence of mind, and objectivity.
[60] His evidence shows without a doubt these puppies were in distress from a physiological point of view, unnecessarily so as the cure was simple, inexpensive, and very effective, over a very short time. Such a distress could easily have been prevented, by a timely assessment and actions.
[61] He observed puppies that had been neglected and were in a distressful state given the obvious symptoms: pot belly, lack of body fat, poor physical appearance, presence of adult parasites, diarrhea, what could be described as a listless attitude, the straining for bowel movement. All were due to poor hygiene and lack of care. Once proper hygiene, food and water, and medication were administered, he said, their state changed drastically and rapidly.
[62] I reject the defendants’ evidence on that point. Specifically, the extended bellies were not caused by overfeeding, but by worms, or other conditions, which had not been treated. Indeed Mrs Harlowe’s evidence -- she is the owner of the two puppies, the subject matter of the first Warrant --is specific: I never wormed them... All dogs have worms... I did not say I had wormed them, to Gail [Benoit]. This contradicts the defendants’ evidence. All the evidence, including that of Dr. Carnegie, contradicts that of the defendants on that point as well. I find that the puppies were in distress, as defined in subsections (a) and (b) of s. 2(2) of the Act: they lacked food and water and were suffering from privation and neglect.
C) Mistake of fact and due diligence
[63] This is a strict liability offence: R. v. Sault Ste Marie (City of) (1976), 30 C.C.C. (2d) 257, affd [1978] 2 S.C.R. 1299. The defendants may establish a defence of mistake of fact or due diligence, on a balance of probabilities. The ultimate burden of proof always rests on the shoulders of the Crown to prove its case beyond a reasonable doubt.
[64] With respect to the defendants’ belief that the puppies were fine, if such was argued as a mistake of fact, it would be unjustified. Both have enough experience in their business to know the symptoms of the presence of parasites; they should have been able to identify them. They did not. Indeed they deny the existence of their actual state. Yet their presence were visible to any informed observer. There is no a mistake of fact.
[65] On first observation during the execution of the Search Warrants, Mr. Joyce and Ms Noel remarked on the lack of food and water, the feces on the newspaper used for bedding. Mr. Bailey said it was his responsibility to look after the puppies, and did so regularly. The defendants presented photographs of the same kennels/cages, showing them to be clean and properly bedded. I do not accept Mr. Bailey’s evidence on that point. That was not their condition at the time of the officers’ observation.
[66] Obviously, conditions will change hourly, and the defendants are not held to a standard of perfection. Puppies will drink the water provided, eat their food, urinate and defecate, at any time. A person in charge is not expected to provide actual care 24 hours a day, only reasonable care.
[67] It is clear, from the evidence, puppies ought to have water at all times. They ought to live in a clean environment. They did not, except for the German Shepherd. The defendants did not have a system in place to ensure they were cared for properly, particularly during daylight hours. Nor was there any provision for a some liquid replacement for Ms. Harlowe’s puppies, which had been weaned from their mother’s milk at home.
[68] The defendants are experienced dog owners. To all appearances they keep their own, in the house, very well. Obviously the defendants used very different standards when it came to the puppies kept in their business of “dog broker”, and did not provide the same quality of care.
[69] Knowing that all dogs have parasites, one would expect the defendants, due to their extensive experience, to assess accurately the presence of worms and other parasites, and take necessary precautions to deal with the presence of such parasites. They may rely on the representations of their owners; yet are not absolved from using their own experience and observation, and assess accurately the conditions of the animals. They may need professional assistance. It is their decision. But they ought to inspect objectively each animal brought into their care, and have a plan in place to remedy any identified issues.
[70] Given the numbers of puppies they deal with, at the minimum they ought to examine and assess each puppy’s physical state (weights, size, age), and health status, record these and any other relevant observations they may make. Photos, given the ease of doing so now with digital equipment, may help them. They did nothing of the sort. Indeed the defendants ignored the state of health of their charge, and were blind to their most basic needs. I do not accept their evidence there was no problem. The evidence is overwhelming: the puppies were in need of food, water, care and attention of a veterinary.
[71] The defendants simply ignored the obvious signs, hoping for a quick turnaround, and a quick profit -- which could be considerable -- with little investment on their part but for some effort and time. They apparently did not even have a single dose of the most popular and common medication to administer to these puppies, and did not take any step to ascertain their needs. They did not show due diligence to avoid the commission to the actus reus of the offence.
[72] At the very least, in light of the number of puppies/dogs they handle, coming from different homes, and the known risks of infection, they ought to consider a practice, such as the one at the SPCA kennel: institute a cleaning cycle, to prevent or protect the dogs and puppies from worms: day one, bleach and water, the second day a chemical is used to deal with parasites; and that cycle is repeated every two days along with daily cleaning.
[73] Their asking prices appear to be several hundred dollars per puppy. Their cost, on the evidence, one to two hundred dollars. It is thus a profitable business, with little overhead when the puppies are taken on consignment, and little work if they are not looked after properly. The defendants have allowed the pursuit of easy profits to trump the proper supervision and care for the well being of these puppies.
D) Assault and Interference
[74] Ms Noel was a peace officer, in the execution of her duties, pursuant to ACPA. Ms Benoit knew it. Faced with a Search Warrant, lawfully issued, Ms. Benoit had to comply. She could argue later, in court, any legal issues. In fact she was not objecting as to its legality, only that, in an emotional outburst, she did not agree with the presence of the officers on her property, and barred Ms Noel from coming into the home. A Search Warrant does not depend on the permission of the landowner for its execution; indeed it supercedes that right. I accept the evidence of Ms Noel on that point. Ms Benoit was unfortunately too emotional then and at trial, for a trier of fact to rely on the accuracy of her recall.
[75] In effect, Ms Benoit acknowledges the assault against Ms Noel, on the 24th of October 2007, by saying, at para 36 above, “If she had tackled Ms. Noel she would have felt it. If she did step on Ms. Noel’s foot, it is nowhere near what they put us through”. Ms Noel felt both. Indeed, on the whole of the evidence, I find that Ms Benoit, in anger, stepped on Ms Noel’s foot and pushed her with her left shoulder.
CONCLUSIONS
[76] The Application for a Judicial Stay is dismissed as there is no abuse of process.
[77] On the totality of the evidence, the Crown has proven, beyond a reasonable doubt, that the defendants, as persons in charge, have breached s. 11(2) of the ACPA.
[78] Pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729, since the charges pursuant to s. 446(1)(b) [my amendment] of C.C.C., or s. 11(1) of ACPA describes substantially the same delict, a stay is ordered to avoid double jeopardy.
[79] The Crown has also established, beyond a reasonable doubt, that Ms Benoit has committed the offences, as charged, contrary to ss. 270 and 129 of the Criminal Code of Canada.
[80] Therefore, I find Ms Benoit guilty of these two criminal offences. I find both defendants guilty of the provincial offence contrary to s. 11(2) of the ACPA.
Thursday, May 28, 2009
Friday, May 22, 2009
Agency says N.S. has some of best animal anti-cruelty laws in Canada
BRIDGEWATER — An American agency that works for the legal protection of animals says Nova Scotia has one of the best systems in Canada when it comes to anti-cruelty laws.
"I was kind of surprised Nova Scotia was ranked in the top tier," said Mary Hill, secretary of Nova Scotia Society for the Prevention of Cruelty to Animals, said Thursday.
"Upon closer reflection you have to bear in mind this is comparative and it says a lot more about the ranking of the other provinces that are lower on the list than it does about our legislation. It just means the other provinces have worse legislation."
The California-based Animal Legal Defense Fund released a report this week that said Nova Scotia is "one of the worst places to be an animal abuser."
For the second year in a row, it ranked this province in the top tier, along with British Columbia, Manitoba and Ontario, for its animal protection laws.
New Brunswick, Northwest Territories, Nunavut and Quebec were rated on the bottom tier while Alberta, Newfoundland and Labrador, Prince Edward Island, Yukon and Saskatchewan were placed in the middle tier.
Ontario was judged best while the Northwest Territories and Nunavut tied for worst.
The report said Nova Scotia ranked high because its laws allow judges to order abusers to reimburse the costs of care for an impounded animal, place restrictions on the abuser’s ability to own animals in the future and imposes increasing fines on repeat offenders.
But Ms. Hill said even though the province requires the society to enforce the Animal Cruelty Prevention Act and the new Animal Protection Act, it only gives the society $3,000 a year to do that.
Despite that, the society secured three animal cruelty convictions. They include Digby-area puppy brokers Gail Benoit and Dana Bailey; Alan Elliott, who had 130 cows seized from his farm in Spa Springs, Annapolis County, and Alice MacIsaac and her mother Zonda MacIsaac of Celtic Pets Rescue in West Bay Road, Cape Breton. The latter case alone cost the society more than $110,000.
The Agriculture Department gave the society a one-time lump sum of $100,000 last month "but it’s a drop in the bucket," Ms. Hill said. "We welcome it, but it’s not enough and it’s not ongoing."
That money covers the salary and expenses of 1.5 cruelty investigators. The society has 2.5 and Ms. Hill said it needs at least six to fulfil its obligations.
The society investigated 1,264 cruelty complaints in 2008 and 496 this year. Thirteen charges have been laid as of May 21. Other than the money from the Agriculture Department, the society’s only other sources of money are donations, bequests and fundraisers. Last year, with the help of 78 fundraisers across the province, the society raised just over $425,000, which left it with a $35,000 shortfall.
The province has passed new legislation called the Animal Protection Act, which requires veterinarians to report suspected abuse and to define acceptable standards of care for animals. But Ms. Hill said the legislation doesn’t go far enough.
However, since the regulations haven’t been written yet, Ms. Hill hopes the society will have a role in developing them so that they include specific wording that deals with animal fighting and puppy mills.
( bware@herald.ca)
By BEVERLEY WARE South Shore Bureau
Fri. May 22 - 6:08 AM
"I was kind of surprised Nova Scotia was ranked in the top tier," said Mary Hill, secretary of Nova Scotia Society for the Prevention of Cruelty to Animals, said Thursday.
"Upon closer reflection you have to bear in mind this is comparative and it says a lot more about the ranking of the other provinces that are lower on the list than it does about our legislation. It just means the other provinces have worse legislation."
The California-based Animal Legal Defense Fund released a report this week that said Nova Scotia is "one of the worst places to be an animal abuser."
For the second year in a row, it ranked this province in the top tier, along with British Columbia, Manitoba and Ontario, for its animal protection laws.
New Brunswick, Northwest Territories, Nunavut and Quebec were rated on the bottom tier while Alberta, Newfoundland and Labrador, Prince Edward Island, Yukon and Saskatchewan were placed in the middle tier.
Ontario was judged best while the Northwest Territories and Nunavut tied for worst.
The report said Nova Scotia ranked high because its laws allow judges to order abusers to reimburse the costs of care for an impounded animal, place restrictions on the abuser’s ability to own animals in the future and imposes increasing fines on repeat offenders.
But Ms. Hill said even though the province requires the society to enforce the Animal Cruelty Prevention Act and the new Animal Protection Act, it only gives the society $3,000 a year to do that.
Despite that, the society secured three animal cruelty convictions. They include Digby-area puppy brokers Gail Benoit and Dana Bailey; Alan Elliott, who had 130 cows seized from his farm in Spa Springs, Annapolis County, and Alice MacIsaac and her mother Zonda MacIsaac of Celtic Pets Rescue in West Bay Road, Cape Breton. The latter case alone cost the society more than $110,000.
The Agriculture Department gave the society a one-time lump sum of $100,000 last month "but it’s a drop in the bucket," Ms. Hill said. "We welcome it, but it’s not enough and it’s not ongoing."
That money covers the salary and expenses of 1.5 cruelty investigators. The society has 2.5 and Ms. Hill said it needs at least six to fulfil its obligations.
The society investigated 1,264 cruelty complaints in 2008 and 496 this year. Thirteen charges have been laid as of May 21. Other than the money from the Agriculture Department, the society’s only other sources of money are donations, bequests and fundraisers. Last year, with the help of 78 fundraisers across the province, the society raised just over $425,000, which left it with a $35,000 shortfall.
The province has passed new legislation called the Animal Protection Act, which requires veterinarians to report suspected abuse and to define acceptable standards of care for animals. But Ms. Hill said the legislation doesn’t go far enough.
However, since the regulations haven’t been written yet, Ms. Hill hopes the society will have a role in developing them so that they include specific wording that deals with animal fighting and puppy mills.
( bware@herald.ca)
By BEVERLEY WARE South Shore Bureau
Fri. May 22 - 6:08 AM
Friday, May 8, 2009
Benoit & Bailey to launch appeal
It shall be known that ....
The lawyer that represented the Digby's most Famous Puppy Miller/killer's has stepped down from the case. The pair will be representing themselves @ the next court hearing for other charges of animal cruelty from earlier this year.
May 8, 2009
Gail Benoit and Dana Bailey are launching an appeal of the verdict in an animal cruelty case and an assault charge that saw Benoit serve 21 days in the Burnside Womens Correctional Facility. The pair were also fined more than 3 thousand dollars each. The documents for appeal were filed yesterday, and they will appear in Supreme Court on the 27th of this month. Benoit tells the Maritime News Network that the appeal will outline 21 separate legal errors that were made by the judge during the trial. Benoit and Bailey also have another animal cruelty charge pending.
GAIL BENOIT DID 14 DAYS IN JAIL, OUT OF HER 21 DAY SENTENCE.
THIS IS POSTED ON CRAIG's LIST: (Because not one vet in this local area will stand up on the pairs behalf.)
Date: 2009-04-29, 1:02PM ADT PostingID: 1145826456
I am looking for a vet that is willing to come to court and give their expert evedience on the description of canine herpeis or chv1 dog diesese..
You will be paid top dollar and evrthing will be taken care of.... This will include going to court for 1 day..
Please I need the help on this ......
IF YOU YOURSELF OR IF YOU KNOW OF A VET THAT MAY DO THIS LET ME KNOW...
1 902 245 5340
The lawyer that represented the Digby's most Famous Puppy Miller/killer's has stepped down from the case. The pair will be representing themselves @ the next court hearing for other charges of animal cruelty from earlier this year.
THEY ARE STILL OUT SELLING PUPPIES
~~~~~~~~~~~
May 8, 2009
Gail Benoit and Dana Bailey are launching an appeal of the verdict in an animal cruelty case and an assault charge that saw Benoit serve 21 days in the Burnside Womens Correctional Facility. The pair were also fined more than 3 thousand dollars each. The documents for appeal were filed yesterday, and they will appear in Supreme Court on the 27th of this month. Benoit tells the Maritime News Network that the appeal will outline 21 separate legal errors that were made by the judge during the trial. Benoit and Bailey also have another animal cruelty charge pending.
GAIL BENOIT DID 14 DAYS IN JAIL, OUT OF HER 21 DAY SENTENCE.
THIS IS POSTED ON CRAIG's LIST: (Because not one vet in this local area will stand up on the pairs behalf.)
Date: 2009-04-29, 1:02PM ADT PostingID: 1145826456
I am looking for a vet that is willing to come to court and give their expert evedience on the description of canine herpeis or chv1 dog diesese..
You will be paid top dollar and evrthing will be taken care of.... This will include going to court for 1 day..
Please I need the help on this ......
IF YOU YOURSELF OR IF YOU KNOW OF A VET THAT MAY DO THIS LET ME KNOW...
1 902 245 5340
Friday, April 10, 2009
Puppy Broker Faints
CTV news Apr 9. 09
http://thechronicleherald.ca/Front/1116020.html
http://dogkisser.blogspot
http://thechronicleherald.ca/Front/1116020.html
DIGBY — Gail Benoit, a Digby County woman accused of selling sick and dying puppies, slumped to the floor in Digby provincial court Thursday after she was sentenced to 21 days behind bars for resisting arrest.
Upon hearing Judge Jean-Louis Batiot say that she was headed to jail, Ms. Benoit glanced quickly to her right, then fell, rather slowly, to the floor.
Some in the audience laughed while others smiled as they watched two sheriff’s deputies try to help the woman.
The court recessed, and as Judge Batiot left the bench, Ms. Benoit’s husband began to shout profanities and threats, saying his wife sometimes chokes.
"If my wife chokes in that jail, you fellas are going to be held responsible," Dana Bailey hollered, at one point addressing his remarks to "Mr. Batiot."
"How could you do that? This is not fair," he yelled at the judge.
Police and sheriff’s officers hustled Mr. Bailey out of the courtroom, pushed him out the front door of the courthouse and told him to move along. His wife, who had recovered by then, was then led away to jail.
In the fall of 2007, a search warrant was executed and 10 puppies seized from the couple’s home near Digby.
After a trial late last year, Ms. Benoit and Mr. Bailey were convicted on Jan. 29 of animal cruelty and each was fined $1,500 on Thursday. Ms. Benoit was also convicted of resisting arrest, for which she was jailed Thursday, and assaulting an SPCA special constable, for which she was handed a suspended sentence.
Crown attorney Rosalind Michie said Thursday that Ms. Benoit and Mr. Bailey have sold as many as 30,000 dogs in the past 13 years, sometimes selling 200 in a month.
Some people who have bought puppies from Ms. Benoit have complained to the provincial SPCA that the dogs soon died.
Ms. Michie also told the court that this is Ms. Benoit’s third conviction since 1994 for assaulting a peace officer.
"The Crown takes that very seriously," she told Judge Batiot.
She said Ms. Benoit and Mr. Bailey, who called themselves puppy brokers during their trial last year, have never accepted responsibility for their actions.
"All along, nothing has ever been their fault," Ms. Michie said. "There is no expression of any remorse."
The prosecutor said after court that she "would have liked to have seen a prohibition of (owning) animals" placed on the couple. But she said that under the Animal Cruelty Prevention Act, ownership of an abused or neglected animal is required for such a ban to be implemented, and it was determined during last year’s trial that the puppies weren’t owned by the couple but were merely possessed for the purpose of selling them.
Defence lawyer Michael Power said the level of neglect of the puppies was rather low. Although the animal cruelty charges dealt with 10 dogs, he said there is evidence that hundreds of dogs have passed through his clients’ care, the majority without complaint.
Mr. Power said Mr. Bailey, who turns 47 next week, is disabled and receives $869 a month from the Workers’ Compensation Board. Ms. Benoit, 39, also is disabled, the lawyer said, and gets $830 a month.
"They are not bad people. They are business people," Mr. Power said.
He said their puppy brokerage has been hurt by negative publicity.
"The business is basically in limbo now," he said.
Mr. Power also told the court that his clients sometimes speak their minds too freely in public.
"They blurt things out," he said.
"I’ve admonished them . . . I’ve told them to quiet down those emotions. But they do become emotional."
Ms. Benoit and Mr. Bailey must also pay $2,478 in restitution for care and treatment of the sick puppies, and Ms. Benoit will be on probation for 18 months.
Gail Benoit Faints at Prospect of Going to Jailhttp://dogkisser.blogspot
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