Sudweeks left the property in the fall with the 40 horses confined in a pasture with very little food and no water. He also left 200 pounds of dog food in a washtub for his seven dogs. He returned
briefly in mid-December, then left the property in the care of Tetz who arrived in early January. Tetz found no dog food on the property, noticed that the horses were not well, and had no way to contact Sudweeks directly. The RCMP received a complaint from a neighbour, and they arranged to meet in Sudweeks' driveway on January 10th. The RCMP officer noticed the condition of the animals, entered the property to check on their condition, and was
unable to locate anyone. The officer applied for and obtained a telewarrant and then returned the next day with two veterinarians and a special constable from the SPCA. The veterinarians determined that the animals had been without adequate food and water for at least two months. The animals were seized. On January 15th, the RCMP returned with a veterinarian and found more horses
and a horse skeleton. All of the animals seized survived and recovered in the SPCA's care. The trial judge rejected Sudweeks' testimony that his daughters were the ones responsible for the animals' care, that he left
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adequate food, and that Tetz was at fault. The judge accepted Tetz' evidence and concluded that Sudweeks was responsible for the animals, that he left them in a state of present distress in mid-December, and that Tetz undertook to be responsible for the horses and permitted their distress to continue. Sudweeks received a $2,000 fine on each of two counts and a lifetime ban on owning
or having custody of any animal. On appeal, Sudweeks argued that the trial judge demonstrated a reasonable apprehension of bias in his interruptions and interference with examination of witnesses, in his obtaining and providing a copy of a newspaper article on the case to Sudweeks during a lunch recess, and in his comments about his own personal experience with the care of horses. Sudweeks also argued that the judge erred in his findings of credibility, in admitting the evidence obtained during the searches, and in passing a sentence that was unduly harsh.
HELD: Appeal dismissed. Fresh evidence by way of affidavits from Sudweeks and his daughter were admitted with respect to Sudweeks' allegations of bias. The trial judge's interruptions did not generally amount to cross-examination of the witnesses, nor did it
demonstrate any opinions about the witnesses' credibility. Any evidence elicited by the judge was more helpful to Sudweeks than to the Crown. Although the newspaper article that the judge gave to Sudweeks had a negative impact on the relationship between Sudweeks and Tetz, the parties would have seen the article a few hours or a day later and it would have had the same effect. At no time did the judge's interference or comments displace the right to silence or the presumption of innocence. The judge was even-handed, and if anything, was more helpful to Sudweeks than to the Crown. The RCMP had authority under the Prevention of Cruelty to Animals Act to act as authorized agents for the SPCA in this geographic region. The trial judge was correct in concluding that the telewarrant was invalid because the Act had its own search provisions and it was issued on the basis of unsworn informations, but he was also correct to conclude that the evidence was admissible. The Act authorized the searches because the police had reasonable grounds to believe that the animals were in distress. In the alternative, the warrantless searches were justified because of the exigent circumstances. Even if the searches violated the Charter, the evidence was admissible because of Sudweeks' limited expectation of privacy, the officers' good faith in believing that they
had valid warrants, the fact that the evidence was non-conscriptive, the technical nature of the breach, the lack of other investigative means, the seriousness of the charges and the importance of the evidence to the prosecution. Given the extreme condition of the animals, the police and SPCA had the authority to seize them and
had no obligation to let Tetz attempt to bring them back
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to health. Although there was evidence that Sudweeks' daughters purchased the animals and made decisions regarding their care, Sudweeks was clearly the one who had custody of the animals during the relevant period and was responsible for their care. The evidence reasonably supported the judge's findings of credibility and conclusions regarding the facts. The sentence was not excessive and the trial judge applied the correct sentencing principles.