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How testimony from experts in animal welfare or behaviour is helping convict people accused of animal cruelty or neglect

February 27, 2017

 

In my last blog post I discussed how, despite the fact animals are viewed legally as property in Canada, they are receiving better representation than ever in the courts from lawyers, prosecutors, and organizations. Improved representation is resulting in convictions that may not have happened in the past. For example, people who work in the field of animal welfare or behaviour are now being called upon to testify in court with groundbreaking results. In this blog post I will discuss two recent court cases in which the testimony of experts in animal welfare and/or behaviour resulted in precedent-setting judicial decisions: the cases of Melvin Gerling and Kello the dog.

Melvin Gerling was a puppy mill operator in British Columbia's Fraser Valley. Beginning in 2006, he was the subject of several complaints and subsequent visits and orders from the BC Society for the Prevention of Cruelty to Animals. In 2010, fourteen dogs were seized from Gerling by the SPCA. Gerling's lawyer challenged the SPCA in court, alleging the search and seizure was conducted illegally and arguing that the SPCA chose to obtain a search warrant when they could have instead given Gerling a chance to remedy the situation (yet again).

 

In response to those charges, Gerling was convicted in 2014 on two counts of animal cruelty under the Criminal Code of Canada. He was sentenced to a six-month conditional sentence, 50 hours of community service, and a 20 year ban on owning animals. Although the sentence was viewed as "relatively light," the SPCA described the decision as a "major win" because the ban essentially shut down Gerling's business selling puppies in his pet store, Puppy Paradise. After his conviction, Gerling vowed to take the SPCA to court, stating that "the animal welfare agency was on a 'witch hunt' to shut down his business. He claimed he was just busy, not neglectful," a claim which was at the crux of an important subsequent decision by the BC Court of Appeal.

 

Gerling's lawyer appealed his client's 2014 conviction, arguing that the trial judge "did not adequately prove his [Gerling's] intention to break the law." When Gerling's lawyer used the word "intention," he was referring to the obligation of the court to prove that an act of animal neglect or cruelty was done "wilfully." Many people are of the opinion that the biggest single factor hindering animal cruelty convictions in Canada is the existence of the word "wilful" in the Criminal Code legislation. For instance, the court must prove that an accused "wilfully causes or, being the owner, wilfully permits to be caused unnecessary pain, suffering or injury to an animal or a bird" (Section 445.1(1)(a)) or "being the owner ... of a domestic animal ..., abandons it in distress or wilfully neglects or fails to provide suitable and adequate food, water, shelter and care for it" (Section 446(1)(b)). The difficulty of proving in court that someone acted wilfully may result in prosecutors choosing to pursue animal cruelty charges under provincial rather than federal legislation. This approach is problematic in the sense that provincial legislation generally has lower maximum penalties and if a ban on animal ownership is imposed, it is only applicable in the province in which the person has been convicted. Thus, people may be banned from owning animals in one province and simply move to another province to acquire and abuse more animals.

 

In recent court cases, experts in animal welfare or behaviour have been especially helpful in addressing the issue of intent and "wilful neglect." In Melvin Gerling's case, as previously mentioned, his lawyer argued that the dogs in his care were in poor condition because Mr. Gerling was "busy, not neglectful," insinuating that Gerling did not intend to cause the dogs harm or distress. At Gerling's trial, the prosecutor introduced expert testimony from veterinarian Dr. Mark Steinebach, who attested to the dogs' suffering and added that it would not be unreasonable for a lay person to be able [to] assess with little experience" the dogs' afflictions. As a result of the evidence presented by Dr. Steinebach at trial, the BC Court of Appeals supported the decision of the lower court judge, determining that "the initial conviction successfully established the 'deplorable state of the dogs' and 'ample' evidence to establish that the neglect was in fact willful. Speaking to the animal cruelty charges, the judge ruled that Gerling should have reasonably understood the dogs were not being cared for properly." Without Dr. Steinebach's testimony, Melvin Gerling may very well have walked away from the animal cruelty and neglect charges he faced.

 

Another recent case in which a legal decision was significantly impacted by the testimony of an expert witness is that of a dog named Kello, which I have written about in a previous blog post. You can read about the decision in more detail in that post, but to summarize the case, Kello was seized from his owner, who subsequently attempted to get him back on appeal. As a result of expert testimony from animal behaviourist Dr. Rebecca Ledger, the BC Farm Industry Review Board (who heard the appeal) refused to relinquish Kello to his owner “over concerns it [sic] would endure future ‘emotional suffering’.” No longer are the courts concerned only about physical suffering in animals. Thanks to explanations from experts like Dr. Ledger, who also testified in the cases of Emma Paulsen and Desmond Hague, judges are able to understand how certain animal behaviours prove that animals are suffering from abuse or neglect and use this information to convict people of animal cruelty.

 

In conclusion, although Canada's federal animal cruelty legislation requires the courts to prove that an accused acted "wilfully," testimony provided by animal welfare or behaviour experts has led to very good results. That testimony has allowed judges to decide that the animals at the centre of these cases were indeed suffering from abuse or neglect and that it was reasonable to assume that the people accused of these crimes should have known the consequences of their actions. A great deal of credit must also be given to prosecutors who are educating their colleagues to call upon these experts to testify when prosecuting animal cruelty cases. The deletion or replacement of the word "wilfully" is, in my opinion, one of the highest priorities for change with regard to animal cruelty legislation in the Criminal Code of Canada. Nonetheless, the introduction of testimony in court from experts in animal behaviour or welfare is resulting in animals being saved from further abuse and more people being convicted of animal cruelty or neglect.

 

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