Kijiji Buyers BEWARE of Puppy SCAM!

Gail Benoit & Dana Bailey continue to sell puppies despite their previous convictions of Animal Cruelty and upcomming charges on numerous other animal cruelty charges. They are now operating out of Dartmouth/Halifax area & continue to post ads on Kijiji in hopes of generating new sales.

"There was no doubt the pair mistreated dogs."

"The distressed state of the puppies was not a sudden occurrence. It developed over time. Even if the appellants’ control of the puppies had been brief — a matter of days — there was ample time and opportunity to relieve their then obvious distress, or to begin doing so,"

Characterization lacked "any air of reality" - Justice Peter Bryson Source

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 :

~~~~>below is snipped from above document.


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.

[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.
Jean-Louis Batiot, J.P.C.

No comments: