Better Farming: Pipelines present new risks to farmers warns landowners group

Click here to read Better Farming's article on the National Energy Board's Administrative Monetary Penalty system that now applies to pipeline landowners.

A draconian administrative monetary penalty system

Last December, the Canadian Agricultural Review Tribunal (CART) set aside a Notice of Violation served by the CFIA as a nullity.  The party charged was accused of having possessed or disposed of an animal or thing known to be imported illegally, contrary to Section 15 of the Health of Animals Act; she had imported a horse from the US.  Under the Administrative Monetary Penalty (AMP) Regulations, the violation alleged is classed as "very serious" and comes with a $10,000 penalty.

In making a decision in the case, CART member Bruce La Rochelle did not have to consider the evidence of either party because he found that the proceedings were illegitimate from the beginning (ab initio).  He wrote, "The issue to be addressed is whether the offence under subsection 15(1) of the HA Act may be contemporaneously framed as a violation of absolute liability, given that knowledge is an essential component of the prohibited act."

In an offence of absolute liability, once the prosecution has proven the offending act beyond a reasonable doubt, there is liability.  There is no defence of due diligence available.  There is no knowledge or intent requirement.  Violations that are the subject of a Notice of Violation and the AMPs are supposed to be absolute liability offences.

However, Section 15 provides:

(1) No person shall possess or dispose of an animal or thing that the person knows was imported in contravention of this Act or the regulations.
(2) In any prosecution for an offence under subsection (1), an accused who is found to have been in possession of an animal or thing that was imported in contravention of this Act or the regulations shall be considered, in the absence of evidence to the contrary, to have known that the thing was so imported.

Knowledge on the part of the offending party is an explicit part of the offence, and yet CFIA issued a Notice of Violation where the issue of knowledge is not supposed to be a defence.  Member La Rochelle asked himself, "How can it be considered fair to [the accused] when the violation she is alleged to have committed involves knowledge as an essential component, yet she is legislatively prohibited from raising lack of knowledge as a defence?"

As set out in the Agriculture and Agri-Foods Administrative Monetary Penalties Act at Section 18, there is no defence available by reason that the accused "exercised due diligence to prevent the violation" or that he or she "reasonably and honestly believed in the existence of facts that, if true, would exonerate the person."

Member La Rochelle concluded that a contravention of Section 15 of the HA Act "cannot be legally constituted as a violation subject to an admininstrative monetary penalty or warning".  Therefore, the Notice of Violation in this case is a nullity.

Read the decision at: Maria K. Stanford v. Canada (CFIA).

OHSA conviction of farm operation upheld on appeal

An employee of a chick hatchery operation was injured when she fell climbing down from a storage trailer used to house paper liners used in shipping crates.  The employee broke her leg.  The hatchery was charged under the Occupational Health and Safety Act for failing "to take the reasonable precaution of ensuring that adequate access and/or egress was provided for a transport storage trailer".  The hatchery was convicted at trial and appealed the conviction.

Justice Nadel of the Ontario Court of Justice upheld the conviction, finding that, "while the set of steps may once have worked well and may once have been adequate to their purpose that was no longer the case after the trailer had been moved. ... A gap of two feet between rungs of a ladder or a rise of two feet between the treads of a set of steps is, in my view, self-evidently unsafe.  Likewise, a gap of two feet between the top of a set of steps and the platform those steps are intended to give access to is equally self-evidently unsafe and inadequate to the purpose."

The defendant had taken the position on the appeal that, "there is no offence known to the law of Ontario that requires an employer in a farming operation to take the reasonable precaution of ensuring that adequate access and/or egress is provided for a storage facility where the employee's task requires her to work at a height that is less than three metres" (as paraphrased by Justice Nadel).  This was rejected by the Court.

Read the decision at: Ontario (Ministry of Labour) v. Stratford Chick Hatchery Ltd.

Saskatchewan farmer acquitted of Stray Animals Act charges

A Saskatchewan farmer has been acquitted by the Provincial Court of three charges under the Stray Animals Act for "allowing his cattle to run unlawfully at large".  The Court found in the end that the farmer had made out the defence of due diligence.

The Court accepted the evidence of a neighbour that on August 31, 2010, she was in her house, when suddenly five or six bulls came into her yard, from all directions, and a couple of them started fighting.  Being afraid, she called the police, and a complaint ensued.  She said that either she or the police phoned the farmer to come and get the bulls.  The neighbour also stated that the cattle got into an organic alfalfa field, which her son was farming for her.  She made a complaint about the August 31, 2010 incident, as well as two subsequent incidents of the same sort.

In his defence, the farmer presented evidence of his general practices, including the maintenance of fencing.  He argued that he had exercised due diligence by checking his fences twice a week, and repairing breaks whenever they were located.  The Court found that the farmer's fencing was good and substantial, well-built and well-maintained.  In the end, the Court agreed that the farmer had exercised due diligence and was not guilty of the strict liability offences under the Act:

The test ... is whether or not Mr. Potoreyko has satisfied me, on a balance of probabilities, that he took all reasonable steps to avoid the doing of the prohibited act.  I am satisfied that he has met that test.  He is not required to guarantee that his cattle will not run at large.  I find that he took reasonable steps, in both patrolling his fence line, and in repairing the fence line when required, to prevent his cattle from running at large.

Read the decision at: R v Potoreyko.

Old farm "widow maker" tire and wheel assembly subject of Alberta Court decision

An Alberta Court acquitted a tire shop on charges under the Occupational Health and Safety Act (OHSA) related to an accident involving one of its workers.  The accident occurred while the worker was inflating a tire mounted on a split-rim wheel assembly known as a "widow maker".  The tire technician suffered multiple facial fractures and a closed head injury as a result of an apparent "blow off".  The Court noted that split-rim assemblies are uncommon, but an exception is the use of the older style rims on farm trucks where the changeover to new rims can be cost-prohibitive.

The technician's employer was charged with failing to protect the worker in this case.  However, the Court found that the tire shop did have the proper safety mechanisms in place.  The technician simply did not follow the prescribed procedures, including the use of a buddy system and a tire restraint system.

Read the decision at: R. v. Fountain Tire (Olds) Ltd.

Alberta Court upholds acquittal in mistreatment of cattle case

The Crown appealed the acquittal of James Muhlbach (Muhlbach) of a charge laid under the Animal Protection Act, R.S.A. 2000, c. A-41 (the Act) for mistreating cattle on his farm near Stettler, Alberta.  Muhlbach owns and operates a cattle farming operation, and in 2007, the Alberta Society for the Prevention of Cruelty to Animals (ASPCA) investigated various concerns about cattle treatment on the Muhlbach farm. As a result of those investigations, Muhlbach was charged with one count of permitting animals to be in distress contrary to sec. 2(1) of the Animal Protection Act.

According to the Court of Queen's Bench on appeal, in order for the Crown to have been successful in convicting Muhlbach of the charge, it had to prove, beyond a reasonable doubt, the actus reus of the offence that Muhlbach caused or permitted an animal or animals to be in distress. The nature of this charge is quasi-criminal requiring the higher standard of proof, beyond a reasonable doubt, or as the Trial Judge put it, the criminal standard of proof. Given that the charge is strict liability, the Crown is not required to prove the mental element of the offence, but Muhlbach is entitled to a raise a defence of due diligence. This defence is described in the Act at s. 2(2) as:

This section does not apply if the distress results from an activity carried on in accordance with the regulations or in accordance with reasonable and generally accepted practices of animal care, management, husbandry, hunting, fishing, trapping, pest control or slaughter. [emphasis added]

Muhlbach lead a defence of due diligence.  He claimed and lead evidence that his practices were in accordance with reasonable and generally accepted practices of care of cattle. Muhlbach had only to prove this on a balance of probabilities to raise a reasonable doubt. The Trial Judge found that Muhlbach had successfully made out that defence and acquitted him.  On appeal, the Court of Queen's Bench found that the acquittal was reasonable:

To say that the Trial Judge’ acquittal was unreasonable is to say that his conclusions did not fit with the evidence put before him. That cannot be said in this case. It is clear from my review of his oral decision that he was alive to the requirements and standards of proof under the Animal Protection Act, that he considered the evidence carefully, and that he applied the evidence to the test in a reasoned way. Therefore, it cannot be said that the acquittal verdict was unreasonable.

Read the decision at: R. v. Muhlbach.

Saskatchewan farmer convicted for offering a stray animal for sale

On inspecting cattle delivered by the accused, Douglas Lamb, to the Spiritwood stockyards on January 19, 2010, Brand Inspector Kenneth Wasden noticed that one calf was of a different colour, had a different ear tag, and a brand on the left rib. The brand could not be clearly identified before clipping the hair covering it, but was noticeable because the hair covering it was of a lighter colour. The animal was black with a black and white spotted face, referred to as “brockle face”. Wasden had noticed the brand from six to eight feet away. The ear tag was hand printed with a letter and numbers, whereas the other cattle had factory printed ear tags with numbers only. Both types of ear tag were yellow in colour. 

The animal appeared to be stunted, which he attributed to lack of nourishment from early weaning and its hair was rougher. If born in the spring, it should have weighed between 600 and 800 pounds, rather than 450.  The other 20 cattle delivered by the accused were exotic cross-breeds (Simmental and Charolais) and were larger, heavier animals. None of the others were black in colour. The calf in question was a Black Angus cross. The body condition was similar to that of the others, but it was smaller in size.

Richard Williams is a large cattle rancher from Alberta, but brings some cattle to Saskatchewan to pasture in the summer. He brought between 230 and 240 head of cattle to the Rabbit Lake pasture in 2009. He recalled a fence being down between his pasture and that of the accused, which he repaired. When the cattle were transported back to Alberta in the fall, there was one calf missing. Williams identified the calf’s brand and the type of hand lettered ear tag as his, and the black brockle face calf as a product of his cross-breeding Herefords and Black Angus, born in the spring of 2009.

In the eyes of the Court, the Crown proved on this evidence beyond a reasonable doubt that the accused offered a stray animal for sale in violation of the Stray Animals Act. As the charge is a strict liability offence, the defence of due diligence would apply if the accused could prove on a balance of probabilities that he took all due care.  Due care is simply what a reasonable person would have done in the circumstances. The accused must have taken all reasonable steps to avoid the event in order to show that he was not negligent.

The Court disbelieved Lamb's evidence about what he knew and didn't know about the calf in question, and found that he had not taken reasonable steps to avoid committing the offence.  To not recognize your own calves in such a small herd alone shows lack of a reasonable standard of care, in the judge's opinion. In addition, failing to notice a bawling, orphaned calf, and failing to observe an obvious brand also shows lack of due diligence. The accused should have been checking his animals carefully enough and been familiar enough with them to have detected this stray calf among them.

Read the full decision at: R. v. Lamb.

Saskatchewan farmer convicted in distressed cattle case

Saskatchewan farmer John Kowalik has been convicted of one count of "causing or permitting cattle to be in distress" contrary to The Animal Protection Act, 1999.  Under the Act, an animal is in distress if it is:

(a) deprived of adequate food, water, care or shelter;

(b) injured, sick, in pain or suffering; or

(c) abused or neglected.

The Crown’s evidence overwhelmingly established beyond a reasonable doubt that many of the cattle for which the accused was responsible were indeed in distress. The testimony of Barry Thiessen, who is a designated Animal Protection Officer under the Act, showed the cattle to have been kept in a field with inadequate shelter on one side of the quarter section and absolutely no shelter on the other three sides. Thus these animals were at the mercy of the winter winds. One old black cow had collapsed to the ground and was eating the snow in front of it as far as it could reach in an effort to keep hydrated. A large mound of faeces had built up behind it. It had to be shot to put it out of its misery. A cow had given birth. The placenta had not detached and was hanging out of the cow’s birth canal. Its newly born calf was wandering about unable to feed because the mother would not bond with it. Other cattle were clearly undernourished with their spines clearly visible. These had what a defence witness described as a “McDonald’s Arches” look. There was simply no doubt in the judge' mind that these animals were in distress as defined by the Act.

Defence evidence of due diligence on the part of the farmer was rejected.  The accused testified that he had asked his neighbour, Dennis Brassard, to help him move the cattle across the road to a more appropriate pasture where there was adequate shelter. The witness, Dennis Brassard, testified that he had indeed been asked to help move the cattle but was unable to do so prior to Christmas of 2008. He testified that he didn’t help move the cattle between then and March 20 of 2009, because he was not asked to do so by the accused. Indeed the evidence showed that Brassard was more than willing to help and did indeed help when the animal inspector, Mr. Thiessen, ordered the cattle to be moved across the road. In the Court's view, asking a neighbour to help, and then not following up for over three months, was not exercising due diligence. Good intentions do not amount to due diligence. The accused was an experienced farmer. He was born on this farm, and he has worked on it all his life. He could and should have acted much earlier to alleviate the distress that he caused these animals, and that he allowed to continue.

Read the decision at: R. v. Kowalik.

Saskatchewan farmer convicted in stubble fire case

A Saskatchewan farmer has been convicted of having started "an outdoor fire without first taking sufficient precautions to ensure that the fire can be kept under control at all times, contrary to s.15(a) of The Prairie and Forest Fires Act, 1982".  On May 5, 2009, John Kushniruk was burning stubble from his farm land (which is held under a lease from the Crown) adjacent to Crown forested land, and the fire got out of control, causing damage to the wooded area.

Kushniruk had created a fireguard by working up land around the area to be burned, but an investigator observed that there was a lot of exposed grass in the fireguard area.  Kushniruk stated that he had already burned three different spots in the vicinity, without problems, and that the last one (the one that formed the subject of this charge), became a problem only when the wind came up later that afternoon. In his words, in the statement, a “cyclone got into the fire”, it “spun it”, and “some flames started to leak across the fireguard”.  He took remedial measures at that time, although to no avail.  At one point in his statement he summed it up by stating:  "That cyclone got in there and was enough to scatter it across."

A conviction was entered because it was found that Kushniruk had not taken sufficient precautions.  His fireguard was inadequate and there was no evidence that he has any firefighting equipment or materials with him.  He was working alone on the day of the incident in question.  Kushniruk's "due diligence" defence failed.

Kushniruk was acquitted on a second count against him - having started "an outdoor fire when weather conditions are conducive to a fire readily escaping control".  In the view of the Provincial Court judge, the evidence was not sufficient to establish that weather conditions were conducive to a fire readily escaping control.  The fire in question was the fourth set by the farmer that same day.


Read the decision at: R. v. Kushniruk.

Case comment on the R. v. Syncrude guilty verdict

Assistant Professor Shaun Fluker of the University of Calgary has posted a comment on the recent decision in R. v. Syncrude involving the deaths of 1,600 ducks in a tarsands tailings pond.  Click here: The Case of the 1600 dead ducks: The verdict is in - Syncrude guilty under the Migratory Birds Convention Act.

Saskatchewan father and son fined $30K and $10K, respectively

In March, I reported on the convictions of a Saskatchewan father and son for having altered the shoreline of Round Lake next to the son's property (click here).  On June 14, the Provincial Court released its decision on sentencing, imposing a $30,000 fine on the father and a $10,000 fine on the son.  The judge wrote:

In my opinion, this was a massive case of shoreline destruction occasioned in large part by Mr. Kuzub Sr. who felt it was easier to beg forgiveness from SERM than it was to ask for permission and request the appropriate permissions and permits in which to facilitate the work. He knew from his previous experience with SERM that it was a long complicated process that would not likely have been granted in the form in which he wanted it. In my opinion, he took the law into his own hands, decided that the shore needed “cleaning up” if they were ever going to sell these lots and started out with the intention of removing a few old docks and got carried away with the skid steer. I do not accept the fact that he did not have a future subdivision in mind when he started this project. Anyone in Saskatchewan who owns lakefront property now knows that with the increasing demand for lots from purchasers from other provinces, that they are sitting on property that is extremely valuable. This was his attempt to make that land more valuable, more saleable and no doubt to help his son out, as parents are inclined to do. So he cleaned out the old docks and just kept on going and re-contoured the whole beach, taking out bullrushes, natural vegetation and entering the lake bed with his equipment. It is hard to imagine a more reckless approach to a shoreline especially in this day and age when everyone in this province has been sensitized to environmental interests such as spills, clean ups and on a local basis, the removal of old gas stations and underground storage facilities. In my opinion, the Accused had to have known how difficult it would have been, if not impossible, to get the requisite permits so he decided to proceed without them.

I do have more sympathy for Mr. Kuzub Jr. who was out of province when the whole shoreline was altered by his father. I am satisfied that he was indeed shocked and horrified when he returned to Saskatchewan and discovered what his father had accomplished in his absence. He set out to repair the damage himself, knowing full well that if SERM got involved there would be an extensive investigation. That however in my opinion, compounded his involvement. If he had gone to SERM then and told them what had happened, perhaps this prosecution could have been avoided but he instead sought to remedy the situation himself in the vain hope perhaps that no one would notice.  He has paid a significant price for this issue in terms of legal fees, public embarrassment and the costs of the remediation but this does not absolve him from some responsibility in terms of the shoreline destruction. Additionally he does stand to benefit handsomely once these lots are finally sold.

Read the decision at: R. v. Kuzub. (Note: the spelling of the last name of the father and son changed between the release of the trial decision and this sentencing decision)

Syncrude guilty in Alberta duck deaths

Oilsands giant Syncrude was found guilty Friday on both environmental charges it faced in connection with the deaths of 1,600 ducks in April 2008 at a tailings pond in northern Alberta. The provincial court judge hearing the case rejected Syncrude's "due diligence" defence.

Click here to read CBC's story on the verdict: CBC Edmonton.

New trial ordered in case against Rideau Lakes grain elevator operator

The Ontario Court of Justice has ordered a new trial of charges against Alfred John Willows under the Grains Act, R.S.O. 1990, c. G-10.  Willows was charged with carrying on the business of a grain dealer in Ontario on two occasions in 2007 without holding a licence issued by the Chief Inspector.  It was alleged that he had purchased grain from producers (which requires a licence).  In actuality, he had purchased grain "out of storage" - the grain he already had in his storage bins.  One of his defences was that this did not constitute the action of a dealer.  Following a two day trial in Brockville before Justice of the Peace Brian Mackey, Willows was acquitted.  The Crown appealed the acquittal to the higher court and, in his decision rendered February 17, 2010, Justice John Waugh ordered the case back before a Justice of the Peace for a new trial.

Justice of the Peace Mackey had acquitted Willows on three distinct and mutually exclusive grounds or principles of law: i) officially induced error; ii) due diligence; and, iii) Doctrine of Vagueness because of ambiguity or vagueness in the law itself.  These defences needed only to be established by the accused on the balance of probabilities (i.e. more likely than not or 50% plus one, etc.).  Justice Waugh found that none of these defences had been raised by Willows at trial and none were supported by the facts proven at trial.  There was no officially induced error proven by the defence - the only communication from a government official had been from Agricorp (not the authority needed to found this defence) and was vague.  Due diligence could not be proven because Justice Waugh found that Willows was aware that a licence was required.  Finally, the Grains Act was not overly vague or ambiguous - Justice Waugh found that there were licensing requirements for grain elevator operators and for grain dealers, and that in certain circumstances the operations of each would overlap and both licences would be required.

Read the decision at: R. v. Willows.

Saskatchewan father and son convicted of altering shoreline

Last week, the Provincial Court of Saskatchewan convicted a father and son of having "without a valid permit authorizing the activity" altered or caused to be altered "the configuration of the bed, bank or boundary of any river, stream, lake, creek or marsh or other watercourse or water body, contrary to s.361(1)(a) of The Environmental Management and Protection Act, 2002, S.S. 2003, c. E-10.21." 

The son, "Willy" Kozub, owns land at the west end of Round Lake.  His father was the previous owner of the property.  While the son was in Alberta during the winter of 2007-08, his father decided to "clean up" part of the shoreline on the property, which was being proposed for subdivision by the Kozubs.  The father removed large amounts of debris that had built up on the area with a skidsteer, but in the process of doing so, altered the shoreline. 

When the son returned to the property in the spring, he was upset to find what had occurred.  He was concerned that the work done on the property would upset neighbours and the Ministry of the Environment.  Kozub Jr. then went out and tried to put the shoreline back into the shape it had been before his father's intervention. 

Both father and son were charged and convicted for having altered the shoreline without permission from the Ministry of the Environment.  Once it was established that they had done the alterations without permission, a conviction was likely.  The offence under the Act is one of strict liability, which basically means that if the facts required for the offence are proven (i.e. that you did what was not supposed to be done), then you're guilty unless you have a defence of due diligence (you took all reasonable steps to avoid committing the offence or you believed in a mistaken set of facts which, if proven true, would render the act or omission innocent).

Read the decision at: R. v. Kozub.