AGRICULTURE AND AGRI‑FOOD ADMINISTRATIVE
MONETARY PENALTIES ACT
DECISION
In the matter of an application for a review of the facts of a violation of provision 139(2) of the Health of Animals Regulations, alleged by the Respondent, and requested by the Applicant pursuant to subsection 11(1) of the Agriculture and Agri‑Food Administrative Monetary Penalties Act.
F. Ménard, RT #1456, Applicant
- and -
Canadian Food Inspection Agency, Respondent
MEMBER H. LAMED
Decision
Following an oral hearing and a review of all oral and written submissions, the Tribunal, by order, determines that the Applicant committed the violation and is liable for payment of the penalty in the amount of $2,600 to the Respondent within thirty (30) days of the day after which this decision is served.
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REASONS
This decision concerns five cases in which the Applicant was charged with separate violations of subsection 139(2) of the Health of Animals Regulations that allegedly occurred between January 25 and April 2, 2007.
A hearing to review the facts was held at Granby on November 28, 2008. With the consent of the parties, the evidence was shared in the five cases. This decision applies to each case.
The Applicant was represented by its counsel, Ms. Madeleine Lemieux.
The Respondent was represented by its counsel, Mr. Réal Doutre.
In each case, the Notice of violation alleges that the Applicant committed a violation, namely:
“unloaded, or caused to be unloaded, an animal in a way likely to cause injury or undue suffering to it.”
Contrary to provision 139(2) which reads reads as follows:
139. (2) No person shall load or unload, or cause to be loaded or unloaded, an animal in a way likely to cause injury or undue suffering to it.
The Respondent called Dr. Patricio Diaz, who is a veterinarian employed by the Respondent and was on duty at Agromex Inc., a slaughter establishment belonging to the Applicant, to give evidence. Dr. Diaz testified that, in each of the cases, he was called on at 6 a.m., right at the start of his shift, to examine one or more hogs that were in the holding pen. The hog(s) had been delivered during the night and was(were) being held in the pen for inspection. In all of the cases, Dr. Diaz found that the hogs being held had sustained fractures of the hind legs with fragmented bones resulting in hemorrhages. Judging from the colour of the blood (which was still relatively fresh), Dr. Diaz estimated that the injuries had occurred between four and nine hours (plus or minus two hours) before the examination. In all of the cases, Dr. Diaz found that the hogs were non‑ambulatory at the time of examination.
The details of the diagnosis in connection with each notice of violation are listed below:
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1. Date of event: January 25, 2007. Notice of Violation #0607QC0197 – RT File #1454
A hog that was not standing and that showed obvious signs of pain (vocalizations and muscle tremors). The post mortem examination revealed double coxofemoral fractures. (See Inspector’s Non‑Compliance Report at Tab 8 of the Respondent’s Report.)
2. Date of event: January 30, 2007. Notice of Violation #0607QC0208 – RT File #1455
A hog that was dragging itself with its front legs and that showed obvious signs of pain (vocalizations and muscle tremors). The post mortem examination revealed double coxofemoral fractures. (See Inspector’s Non‑Compliance Report at Tab 8 of the Respondent’s Report.)
3. Date of event: March 19, 2007. Notice of Violation #0607QC0242 – RT File #1456
A hog that had a major fracture of the left hind leg (deformed leg with large bruises). The animal was unable to move around and appeared to be suffering because of its injury. (See Inspector’s Non‑Compliance Report at Tab 8 of the Respondent’s Report.)
4. Date of event: March 29, 2007. Notice of Violation #0708QC0009 – RT File #1458
Two hogs that were non-ambulatory. They each evidently had a fracture of the right hind leg (deformed leg, abnormal position, signs of contusion [bluish skin]). The post mortem examination revealed that the coxal and femoral bones were broken (there were small pieces of bone and a large hemorrhage). (See Inspector’s Non‑Compliance Report at Tab 7 of the Respondent’s Report.)
5. Date of event: April 2, 2007. Notice of Violation #0708QC0008 – RT File #1457
A hog that was non-ambulatory. It evidently had a fracture of the right hind leg (deformed leg, abnormal position, signs of contusion [bluish skin]).
No evidence was provided to explain the exact origin of the injuries. However, Dr. Diaz explained that it would have taken a certain amount of force, such as a fall in the truck or off the side of the unloading ramp, to produce such fractures. Dr. Diaz expressed the opinion that, in all of the cases, the afflicted animal should have been stunned on the truck and should not have been unloaded.
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The evidence given by Dr. Charles Surprenant, consulting veterinarian and witness for the Applicant, agreed with Dr. Diaz’s observation that a considerable force would have been required to produce such injuries. Dr. Surprenant also concluded that similar events had apparently occurred in all of the cases, and he expressed the opinion that the events had apparently occurred during transport or unloading. Dr. Surprenant also explained that an injured animal continues to move for a very short distance immediately after the injury, in an attempt to follow the group and conceal the pain.
The Applicant maintained that no violations had been committed, because in each case the animal moved to the holding pen under its own power and was therefore ambulatory at the time of unloading. In support of that argument, Mr. Bruno Girard, the Applicant’s representative, testified that he had watched videos, recorded by a camera installed at the unloading dock, showing the unloading of the animals concerned. Those videos had been erased, unfortunately, but he proposed that the Tribunal watch another video, taken at another time, showing the unloading of hogs. According to Mr. Girard, the images on that video were very similar to those on the videos recorded during the unloading sessions that gave rise to the alleged violations. The Tribunal agreed to watch the video, subject to its probative value.
The video showed a hog lying in the doorway of a truck, at the top of an unloading ramp. One of the hog’s legs could be seen protruding at a 90-degree angle from its body. The hog was trampled on by the other hogs as they went by, but it did not get up. Finally, an employee picked the hog up and put it back on its feet, and the hog moved by sliding all the way down the sloping ramp (a distance of a few metres) until it reached the holding pen, which was at the bottom of the ramp. There, the hog lay down and did not get up again.
The Tribunal emphasizes that the probative value of the video was minimal, as it did not show any of the events in the five cases. It did have a certain amount of probative value, however, because it originated from the Applicant. It was the Applicant’s intention to demonstrate that the animals concerned by the alleged violations had moved to the holding pen under their own power, as the hog in the video had, and therefore were not non-ambulatory.
The Tribunal cannot accept that the legislator wanted to apply the term “ambulatory” to the last painful and desperate movements of an animal like the one in the video. That interpretation would make subsection 139(2) of the Regulations meaningless, because it would not provide any protection to animals injured during transport that manage, despite their injuries and at all costs, to move to the holding pen. The testimony of Dr. Surprenant enlightens the Tribunals in regards to the animals nature and instinct to try to follow the group and hide its weakness. The Tribunal is of the opinion that this phenomenon does not render the animal ambulatory within the meaning of the legislation. The Tribunal is of the opinion that, in the light of the acute injuries observed by Dr. Diaz in each case, the manoeuvring required to make the animals move all the way down to the pen cannot but have caused them suffering corresponding to the notion of undue suffering, as interpreted by the Federal Court of Appeal in Canada (Attorney General) v. Porcherie des Cèdres 2005 FCA 59.
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The Tribunal finds, on the balance of probabilities, that the violation was committed in each of the cases listed above and orders the Applicant to pay the penalty of $2,600 in connection with each violation within 30 days of the date on which this decision is served.
Dated at Montréal, this 4th day of February, 2009.
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H. Lamed, Member