Defence: SPCA testimony ‘exaggerated’

The lawyer for a Kings County woman facing three charges under the Animal Protection Act said SPCA investigators appear to have “exaggerated” their testimony.

Brian Casey said in his closing submissions in Kentville provincial court on Thursday that officers' evidence during the trial didn't match their notes on at least two occasions.

Karin Robertson, 58, is charged with failing to comply with an order and two counts of causing animals to be in distress at her border collie and Jack Russell terrier breeding operation near Wolfville.

The SPCA seized 35 dogs from the operation in December 2019, accusing her of not complying with a raft of orders based on the Canadian Kennel Club code of practice.

She had been inspected by the SPCA on a regular basis for a decade with no issues of concern ever being raised, including in May 2019.

An SPCA officer showed up in September 2019 after a complaint about a vet certificate, but took issue with some things she saw. On subsequent visits, the SPCA started issuing orders for Robertson to comply with, which eventually numbered 44.

Most of those related to items listed under the code of practice, a document that Robertson testified she had never been told about by the SPCA until the fall of 2019.

The first charge was that Robertson caused dogs to be in distress between Sept. 16 and Nov. 11.

Casey said he accepted a Dalhousie University researcher's testimony that the video of a dog running back and forth recorded on a visit by the SPCA in that time period showed that the animal was in a high state of arousal.

“The issue for your honour is what caused that. Was it because the SPCA had arrived in a group and she's responding to that number of people there? Is it because they're putting food (through the fence) for some of the dogs? Is it... because she's a ball dog and she expects them to play fetch with her? We don't know what has caused that state of arousal.”

He said that was the same as with other “snippets” of video taken by the SPCA.

“Assessing what the cause of that is is quite difficult and in my perspective doesn't amount to evidence beyond a reasonable doubt that Ms. Robertson caused it.”

He also said that the judge should not find that there was any evidence beyond a reasonable doubt that the animals were in distress.

“In my view, the SPCA has exaggerated their evidence, and what you're getting, to put it kindly, is a little bit of historical revisionism,” Casey told van der Hoek.

When the SPCA visited on Sept. 18, SPCA chief inspector Jo-anne Landsburg wrote in her notebook that there was no visible feces or urine, and the operation “smells like dog,” Casey said.

“That's not how the SPCA goes on to describe their visit when they testified before your honour,” Casey said. “The language that (officers) use is, with respect, greatly exaggerated from (Landsburg's) note at the time.”

He said Rebecca Ledger, an animal behaviour researcher who visited the site on Oct. 7, said in her report that there was mild odor of urine.

“That's not the way the SPCA witnesses described it (in testimony),” Casey said.

“When I listen to the SPCA evidence, it unfortunately doesn't line up with their notes at the time, and it doesn't line up with what I think is a foundation fact here. If the dogs were in distress on Sept. 16, why would the SPCA wait four months to lay any charges? The reason they didn't charge on Sept. 16... is because their determination at the time was that the dogs were not in distress,” he said.

“The idea that the SPCA saw the dogs in distress on Sept. 16, went back and saw it again on the 18th, again on (Oct.) 7, again on the 23rd, and again on the 31st and did nothing is a bit of a stretch.”

He said Ledger's testimony was that suffering means dogs are experiencing something unpleasant, and her evidence under cross-examination was a dog that had wood shavings in its water dish or that could smell urine might find both things unpleasant, and therefore they would be suffering.

But that's not what the Animal Protection Act says, Casey told van der Hoek.

He said the act says that a dog in distress is suffering “undue hardship. I understand that it's unpleasant to have wood shavings in your water dish, but I don't know how you would manage to avoid that in a room with lots of puppies bouncing around. It certainly doesn't amount to distress under the legal standard.”

The second charge of causing an animal to be in distress covered the period from Nov. 12 to Dec. 10, the day of the seizure.

Casey said the SPCA wasn't at the property between Nov. 12 and Dec. 9, so the only Crown evidence was from the day of the seizure.

“They have no idea whether the dogs were in distress in that time period or not,” Casey said.

He said the only evidence other than from the date of the seizure was video of the dogs playing, recorded by Robertson on Dec. 9. He said both the Dalhousie researcher and a vet called as Crown witnesses testified that there was no evidence of distress in the video.

He said on the day of the seizure, Robertson was not home, when several SPCA investigators and employees and an RCMP officer entered the home and kennel.

Casey said the dogs "have no reason to know this was something appropriate. They were agitated and they barked and they responded as you would expect to having a group of seven or eight strangers who they have never seen before....”

He said many of the dogs were catch-poled or sliplined, then “carried by a strange person, to a vehicle they have not been in before, placed in a crate they haven't been in before, and then taken on an hour-long drive to Burnside,” and remained in the crates for a few hours before they were seen by a vet.

“The fact that they were distressed at the end of that process doesn't tell us anything about their state beforehand,” Casey said.

He told van der Hoek that the SPCA is entitled to give orders relating to the Animal Protection Act and regulations, but not kennel club code or practice.

He said three orders did fall under the provincial regulations' standards, but only one actually applied to Robertson's property.

The standard for adequate water is that it be accessible by an animal in sufficient volume, taking into account weather and temperature, to maintain normal hydration.

“The obligation under the standard is not to have water at all times, which the SPCA wanted, it's to have sufficient water in the course of the day to maintain normal hydration. There's no evidence whatever that that didn't occur.”

Crown attorney Jim Fyfe will make his closing arguments later this month.