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Guide to Private Prosecution of Farm Animal Transporters Under the Health of Animals

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Guide to Private Prosecution of Farm Animal Transporters Under the Health of Animals Guide to Private Prosecution of Animal Welfare Offences under the Federal Health of Animals Act Prepared by Sophie Gaillard for Animal Justice Canada Currency Date: May 2013 **************************************************************************************************** This guide is not intended to be construed as legal advice, nor does it form the basis of a lawyer-client relationship. The information provided in this guide pertains only to the jurisdiction(s) stated. Legal counsel should be sought prior to acting or relying upon anything contained herein. **************************************************************************************************** If you find this guide helpful please consider making a donation at: www.animaljustice.ca/donate/ Animal Justice Canada is a charitable organization that operates with the help of people like you. Page 2 of 47 Table of Contents 1. Introduction ................................................................................................................. 3 2. Limits and Challenges of Private Prosecution ............................................................. 5 3. Resources ................................................................................................................... 6 4. Obtaining Physical Evidence ....................................................................................... 7 4.1 Where to look for contraventions of the Health of Animals Regulations ................. 7 4.2 Identifying contraventions of the Health of Animals Regulations ........................... 8 4.3 Trespassing ......................................................................................................... 14 4.4 Note taking .......................................................................................................... 14 4.5 Interviews ............................................................................................................ 15 4.6 Visual evidence .................................................................................................... 15 4.7 Expert opinion ...................................................................................................... 16 4.8 Tips ...................................................................................................................... 17 5. Obtaining Documentary Evidence ............................................................................. 18 5.1 Freedom of information requests ......................................................................... 18 5.2 Certificates of Incorporation ................................................................................. 20 5.3 Vehicle Records ................................................................................................... 20 6. Building Your Case .................................................................................................... 21 6.1 Choosing who to prosecute ................................................................................. 21 6.2 Indictment versus summary conviction proceedings ............................................ 21 6.3 Proving your case ................................................................................................ 22 6.4 Rules of evidence ................................................................................................ 23 7. Procedural Steps ....................................................................................................... 25 7.1 Making a formal complaint ................................................................................... 25 7.2 Preparing your brief ............................................................................................. 25 7.3 Laying an information .......................................................................................... 26 7.4 Intervention of the Attorney General .................................................................... 27 7.5 The process hearing and summons ..................................................................... 28 7.6 Serving the accused ............................................................................................ 29 7.7 First appearance .................................................................................................. 30 7.8 The trial ................................................................................................................ 30 7.9 Speaking to sentencing ....................................................................................... 31 7.10 Appeal and judicial review ................................................................................. 32 8. Conclusion ................................................................................................................ 33 Appendix A: Auction Listings for Ontario ....................................................................... 34 Appendix B: Common Signs of Distress and Injury by Species .................................... 37 Appendix C: Relevant Provisions of the Health of Animals Regulations ....................... 39 Appendix D: Resources ................................................................................................. 43 Appendix E: Example of a Properly Drafted Information ............................................... 46 Page 3 of 47 1. Introduction Farm animal transport in Canada Over 700 million animals are slaughtered for food annually in Canada.1 Due to the centralization of the industry, the size of the country and the live animal trade with the United States, farm animals are transported over increasingly long distances before they arrive at the slaughterhouse. An abundance of research shows that the time spent in transit and accompanying handling is extremely stressful for these animals.2 Under the authority of the federal Health of Animals Act, subsection 64(i)(ii), the Health of Animals Regulations, Part XII, are designed to ensure a minimal level of welfare during transport.3 Although the standards set by the Health of Animals Regulations are some of the lowest in the Western world, 4 investigations have revealed that an unacceptably high number of animals are transported in contravention of this legislation and that little is being done by the Canadian Food Inspection Agency (CFIA), the governmental body responsible for enforcing the Health of Animals Regulations, to ensure compliance. A recent study conducted by the World Society for the Protection of Animals (WSPA) found that: despite regulations prohibiting the transport of “unfit” animals, thousands of farm animals arrive at Canadian slaughterhouses sick, severely injured, crippled or even dead during transport, animals are routinely overcrowded and exposed to severe weather conditions severely compromised animals are left to suffer for prolonged periods, sometimes days, before being euthanized5 WSPA concludes that lax law enforcement is the reason behind this needless and illegal suffering. According to the organization, CFIA has too few animal inspectors and veterinarians, making it impossible for the agency to properly enforce regulations. Further, many animal inspections are conducted by staff who lack sufficient experience in assessing animal welfare. Finally, CFIA’s reporting and enforcement are often weak and inconsistent: loads that are clearly in violation of regulations are frequently marked as compliant, and even when inspectors conclude that there is a violation, their response is frequently limited to giving warnings or handing out educational pamphlets. 1 Industry Statistics, online: Canadian Meat Council <www.cmc-cvc.com/english/industry_statistic_e.asp>. 2 See e.g. M.C. Appleby, V. Cussen, L. Garces, L. Lambert & J. Turner, eds., Long Distance Transport and Welfare of Farm Animals (Wallingford: CAB International, 2008). 3 Health of Animals Act, S.C. 1990, c. 21 [Health of Animals Act]; Health of Animals Regulations, C.R.C., c. 296 [Health of Animals Regulations]. 4 See e.g. EC, Council Regulation (EC) No 1/2005 of 22 December 2004 on the protection of animals during transport and related operations and amending Directives 64/432/EEC and 93/119/EC and Regulation (EC) No 1255/97, [2005] O.J. L3/1. 5 Curb the Cruelty: Canada’s farm animal transport system in need of repair, online: World Society for the Protection of Animals <www.wspa.ca/ati/CurbtheCrueltyReport.pdf>. Page 4 of 47 In the face of this governmental inaction, farm animals need the public’s help. Private prosecution As Canadian citizens, we all have the right to initiate a private criminal prosecution against someone who we believe has committed an offence under a provincial or federal statute or regulation.6 Unlike public prosecutions (which constitute the vast majority of all prosecutions), neither the police nor government enforcement agencies need to be involved. Private prosecution thus allows individuals and organizations to bypass administrative agencies in order to directly enforce a piece of legislation. Although such prosecutions are relatively rare, environmental groups have increasingly been using them as a means of enforcing unenforced environmental regulations. These groups use private prosecutions not only to bring attention to and stop illegal pollution, but also to expose the failings of administrative agencies and to hold the government accountable to the public. Even prosecutions that fail to result in convictions can make a significant impact by shedding light on an issue and pressuring the
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