Testy exchanges punctuate OSPCA dog care case
Lawyers take up most of the spotlight during two days of hearings before a review board

Written by Ian Cummings

Ottawa -In the two days of hearings completed by the Animal Care Review Board -with three more to go in late September -concerning excess tartar on one dog's teeth owned by Jessica Johnson, intense emotion and legal wrangling on points of law dominated between the two lawyers: Kurtis Andrews for Johnson and Clayton Ruby for the OSPCA.

There had been one other day of hearings in July where the same two lawyers argued whether the Review Board could or couldn't legally hear and consider whether Charter violations had possibly occurred in the OSPCA raid on the Johnson home. Chair Rae Slater Legault, plus panel member Louse Menard had ruled in favour of Andrews, that Charter arguments could be made and considered. In his opening statement Andrews noted that, "Ontario citizens have no guarantee for dental care. Is it a guarantee for dogs?" There had been four warrants issued in this case for dog dental issues and the Review Board, "should not sanction this type of behaviour by the OSPCA," said Andrews. "It shocks the public and brings justice into disrepute."

Ruby noted in his opening remarks that "there was no violation of Charter rights when obtaining and executing the warrant." The agents and OPP were "polite and respectful," he said.

While the ITO evidence obtained "wasn't perfect, the errors were minor," said Ruby. "Case law says don't expect perfection."

What could or couldn't be presented by Andrews for the same panel members to consider, took up a huge amount of time through the whole proceedings, as Ruby used legal arguments to block the entry of nearly every OSPCA letter, order, plus search warrants issued by the Justice of the Peace to the OSPCA, into evidence from Andrews.

At the end of the second day Legault still had not decided how many -if any -of the ITO's four search warrants and OSPCA orders and correspondence she would allow into evidence to be considered.

In mid-afternoon on the second day, when Ruby was blocking document after document from being admitted into evidence, a hyper-ventilating Andrews asked to be excused and out in the hall way, noted to reporters, "they can't do this, what they are doing is illegal."

Upon re-entry into the hearing Legault noted, "you can give them (the documents) to me. I'm still not sure what I'll do with them." Legault's main concern when hearing Charter arguments, and whether the introduced pieces of evidence presented were relevant to that determination or not, was "not identifying the informant to the OSPCA. I want the ID of the informant edited out." She noted that she would "err on the side of caution, even if I don't get it (the decision) right," to protect that informant. However both Andrews and Ruby assured her that the informant was "unknown to everyone." Andrews noted "that it was fourth-hand information, a voice message to the OSPCA which said that they had a message from someone else."

Andrews took exception to a search warrant being issued on such an unverifiable claim which was "clearly exaggerated", while Ruby countered that using tips from informants -known or unknown -for an investigation to happen and to issue search warrants "happens all the time."

THE ORIGINAL raid had occurred on May 18th at the Johnson residence where OSPCA agent Maryanne Hitchens had crawled in through a bedroom window, while the legally disabled Johnson was asleep in her living room chair, with Hitchen's then opening the door for two OPP officers and three other OSPCA officers.

Those original orders asked for Johnson to clean up her residence, with regard to removing floor electrical cords which the dogs could potentially chew on and to bring her dogs for vet inspection, with special attention to dental issues. After that raid Johnson had most of the dogs sent to an undisclosed location, but in a subsequent raid the OSPCA seized her remaining dog Logan, which was returned several days later after a vet inspection.

As a result of removing the dogs Johnson is charged with obstruction of justice, but under the OSPCA Act has to go in front of the Review Board to have the order and Charter issues heard first. In a complete reversal of Review Board protocol, Legault had Andrews present his evidence and case first. "It's usually the OSPCA that goes first," said Legault, who gave no public reason as for not following the usual court protocol.

It was this reversal which frustrated Andrews repeatedly, noting to Legault as she and Ruby blocked him again and again from presenting documents. "I don't know whether this document will be presented into evidence by the OSPCA. That's why I have to put it into evidence when I have the chance. I don't know whether they will call any agents to testify." Andrews' first witness was Dr Kellie Stein, a veterinary from Brockville. Stein, on behalf of the OSPCA had examined Logan and had found him, "in good body condition, good demeanour, had moderate dental tartar typical for a Yorkie of his age." "The majority of small dogs have some degree of dental disease," she said. Under questioning she put that number at 80 per cent. "Small dogs have crowded mouths," she said. Their basic dental cleaning package is $350, with other extensive work generally bringing the dental bill to $800 to $900 per dog, said Stein. "What happens when an owner walks away and does nothing?" regarding expensive dental treatment, asked Andrews. "There will be an accumulation of plaque, but it's not life-threatening," said Stein.

Asked whether she ever called the OSPCA on dental issues, "I've never had to," said Stein. In the May 18th raid OSPCA agents saw dogs "in a state of needy dental care. Is this what you saw later?" asked Ruby. "Yes," answered Stein.

Dr Julia Brown, a vet since 1989, now working at Westport, had examined the rest of Johnson's dogs after the raids on July 30th, but had refused to testify until summoned by Andrews under threat that she would be arrested if she did not appear. Andrews presented that written letter into evidence, noting that while Brown was his witness, 'she could be hostile." Brown went through detailed notes of all six dogs she examined finding everyone perfectly healthy, other than nine-year-old Vicki who had "severe gingivitis but no other issues. She was bright and alert, body condition fine, no infectious diseases." When asked if she had ever called the OSPCA on dental issues, "never" replied Brown. Under cross-examination Ruby noted to Brown that she was "at a severe disadvantage" by not having past medical records provided for the dogs. "The dog with bad teeth, that didn't start overnight?" noted Ruby. Brown nodded in agreement, also noting that she had concerns with non-spayed females -which Johnson had -"living together. Population needs, population control is my big thing," she said.

Under questioning from panel member Menard, Brown explained how she had written about the dental issues on the one dog, but had noted in writing that the dog was "not in immediate distress." She noted to Menard that meant, "the dog was still eating and drinking. Everything was normal."

THE THIRD witness was Shawn Carmichael, who as Landowner president in Johnson's area, had stopped by at Andrews' request soon after the original raid and took pictures of the home and dogs. While Andrews was merely using Carmichael on the stand, "to verify he took these photos which you can see for yourselves, not to be an expert with opinion," Ruby attacked Carmichael on a number of fronts. Detailing his charges with the egg board on selling eggs without a quota, where 1,000 hens had been suffocated by the CFIA during a raid and the OSPCA wouldn't lay charges, plus his membership in the Landowners, "this witness has an interest in the outcome of these proceedings," said Ruby. "He has a bias. There is a reason why he should not be believed." "Are there any of them (Landowners) here?" asked Legault as she gestured to the audience. "Who they are or what organization they belong to is irrelevant to all of this," said Andrews.

"I also belong to the Baptist church," snapped Carmichael to Ruby on one of many testy exchanges. "Do you want to demean and attack them too?"

Johnson had a previous Business Plan Implementation (BPI) Farm Financial Assessment (FFA) Agricultural Skills Development (ASD) encounter with the OSPCA in 2011, she said when taking the witness stand. Four dogs were seized and given back four days later after being checked healthy by a vet. The four-day boarding cost according to the OSPCA document -presented into evidence by Andrews after attempts at blocking by Ruby -was $2,449.51. "They wouldn't take payments. If I wanted my dogs back I had to pay up front," said Johnson.

Using a drawn floor plan and pointing with her cane Johnson detailed where the dogs usually were, their exercise yard outside, and the movements of the various officers during the three raids on her house this year, including pointing to the door where the OPP had taken off the screen, unbolted the door and then entered. Plus the window where OSPCA's Hitchens had crawled through. While living on $2,100 a month with a $900 a month mortgage and tax payment, her dogs never lack care since a shelter will take them the instant that she notices anything wrong, said Johnson.

When prodded by Ruby "have you ever considered whether you can give them the proper care" based on her financial situation, 'they are my family, I love them," said Johnson. "In your condition you cannot take care of the dogs," charged Ruby, noting that it would be impossible for Johnson to "bend down" to clean up feces and urine that would be on the floor. "Put something down for me right now. Put something down," said Johnson. She threw her cane on the floor and picked it up. "I'm quite capable of doing things, especially when I'm angry," she said. Noting that "things got cleaned up, although it may take me longer." "You're cleaning up all the time then, isn't it too high a price to pay?" asked Ruby.

With Ruby estimating that he had one hour of cross-examination left, the venue for the next three days was switched to Kingston, making it cheaper and closer for Johnson to get a ride. Ruby ruled out returning to Smith Falls, noting that "the accommodations there are terrible."

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