NAPANEE-Despite the deaths of hundreds of chickens at Shawn Carmichael's farm, following the March 23 joint raid of the Canadian Food Inspection Agency and the Egg Farmers of Ontario, no animal cruelty charges will be laid against the agencies.
In mid-July, Connie Mallory, senior investigating officer with the Ontario Society for the Prevention of Cruelty to Animals said the crown attorney decided not to lay charges "after a careful, considered and comprehensive review of the brief. Based on the facts I had presented, it was up to the crown attorney to decide if there would be charges or not."
Mallory put the case together for crown attorney Curt Flanagan which included over 20 witness statements from neighbours and landowners, interviews with representatives of the Canadian Food Inspection Agency (CFIA), the Egg Farmers of Ontario (EFO), the Carmichaels and statements from the chicken handlers hired by the Egg Farmers to remove the hens from the barn, place them in cages on a dolly and move them to a truck, to be transported off the farm. Also included were graphic pictures taken by the landowners of dead and dying birds, crammed in cages, with their legs and tails sticking out through the mesh at every angle.
The investigation was jointly conducted by OPP Const. Jennifer Cassidy of the Gananoque Detachment and the SPCA. OPP Communications Officer Christine Rae said the process was followed, and there was insufficient means to proceed. Flanagan was not available to answer questions from The AgriNews by press time.
"Looking at the pictures, one would be alarmed, but given the information from the CFIA and the Egg Producers, the exact number of birds were put on the dolly," said Mallory. "From the information provided, the crown attorney decided not to lay animal cruelty charges, because it has to be proven there was a willful intention to hurt the birds."
"I was not there that day and it's my understanding they were handled appropriately by the chicken handlers," she said. "It was a very stressful set of circumstances for the birds."
"I think a lot of unfortunate circumstances happened that day and to pinpoint and lay the blame on any one person, it's difficult to prove anything," she explained.
The SPCA can lay charges on its own, but it's not unusual to go to the crown attorney in an investigation, Mallory added. This time, "we felt it was necessary to have legal advisement."
Asked to comment, Mark Beaven, EFO Operations Manager said their contention all along was the birds "were handled properly as industry standards would dictate. I refute the claims of numbers of birds dying. Whether they did with the handling still remains to be seen. Our handlers contracted by the EFO are trained individuals in handling birds and did everything according to industry standards."
The lack of action by Flanagan did not surprise Carmichael. "I said to Connie: Let me know for the next time. Eight hundred wasn't enough. How many do they have to kill for there to be charges?"
"The bottom line is the crown attorney works with the police every day, presenting criminal cases. That's the problem. It's blatantly obvious they were shoving them in the cages. If the crown were to lay charges against the CFIA and the Egg Farmers of Ontario, the OPP is on the hook, because they stood there and did nothing. There's no difference between that and a swarming or someone being murdered. If you're there and don't do anything about it, you're just as guilty for making it happen," Carmichael continued.
Carmichael went on to say that what is shocking is the lack of justice in the entire situation.
"We gave a legal system but not a justice system. I'd be satisfied if charges were laid, even if there is no conviction."
Since no charges were laid, and the case did not go to court, Carmichael doesn't know how to appeal it, but he said he will pursue it by demanding the brief supplied to the crown attorney, and the brief from the crown given back to the OPP and the SPCA.
The day of the raid, Leeds Grenville landowner Duaine McKinley called the Brockville SPCA to intervene. McKinley was told the CFIA, who were supervising the operation, "knew the rules and regulations", and they did not respond that day. However, the next day, two SPCA investigators came to the farm and removed two dead hens from the farm for examination by a specialist veterinarian. Mallory reported they were not allowed to take any more hens and she never had confirmation of the number of birds that died. That was the beginning of their lengthy investigation.
"It's interesting we suggested the SPCA be investigated and the OPP be investigated," said Randy Hillier, president of the Ontario Landowners Association.
The Carmichaels called in the OLA to assist on the day of the raid and on April 4, Hillier, on behalf of the landowners asked the Prescott OPP Detachment to include the police and the SPCA in their investigation, along with the CFIA and the EFO. That day, Inspector Brent Hill replied that to obtain police notes of the incident, one would have to go through Freedom of Information.
Later, Christine Rae said as far as she knew, there had not been a written complaint lodged versus the OPP and they would not involve the SPCA in an investigation.
"This is not unexpected. I'd be absolutely surprised if they did lay charges. If the government officials conducted themselves in a manner they expect people to conduct themselves, there would never be a need for a landowners' association," said Hillier.
As far as intent to hurt the birds, Hillier pointed out the case of Doug Stinson of North Gower who faces charges of cruelty by the SPCA, for failing to provide adequate care for a cow on his father's farm. Last month's edition reported that an investigator acting on a complaint had found a cow "observed to be in pain and missing approximately one third of its right, front leg."
"It's basically for a case of foot rot. What intent is there? I can give you a long list of people charged criminally by the SPCA in the regular day to day care of their animals. The threshold for intent for farmers is low or non-existent. But when it comes to the threshold for intent for government bodies, it's up around the elevation of Mount Everest," said Hillier.
"We know that for criminal charges to be laid, intent has to be demonstrated. A number of people I talked to said the actions (of people conducting the raid) could be defended by saying: "I didn't really mean to do any harm. The North Gower farmer didn't mean any harm, but he was charged criminally."
"I think it's a travesty of justice. The only reason no charges were laid is the charges would be against the government," said Jacqueline Fennell, president of the Leeds Grenville Landowners Association.
"If it was Shawn or me or the landowners treating the chickens that way, we'd be charged. This is underhanded. Government is over and above the law. They don't have to follow the law," Fennell stated.