CanLII - 2010 ONCJ = 358 (CanLII)

RE: College of Veterinarians of Ontario v. = Pet=20 Heaven et al., 2010 ONCJ 358 (CanLII)

http://www.canlii.org/en/on/oncj/doc/2010/2010o= ncj358/2010oncj358.html

Print:	PDF = Format
Date:	2010-08-23
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Noteup:	Search=20 for decisions citing this decision =

Reflex=20 Record (related decisions, legislation cited and decisions = cited)=20

Legislation cited (available on CanLII)

Criminal=20 Code, R.S.C., 1985, c. C-46=20
Veterinarians=20 Act, R.S.O., 1990, c. V.3 =E2=80=94 = 11=20 (1) =E2=80=A2 11=20 (5) =E2=80=A2 40=20 =E2=80=A2 44=20

Decisions cited

Church=20 of Scientology and The Queen (No. 6), Re, 1987 CanLII 122 (ON = C.A.) =E2=80=94=20 31 C.C.C. (3d) 449 =E2=80=A2 30 C.R.R. 238 =E2=80=A2 18=20 O.A.C. 321=20
R.=20 v. Gordon, 1999 CanLII 18640 (MB C.A.) =E2=80=94 139=20 C.C.C. (3d) 239 =E2=80=A2 28 C.R. = (5th) 168 =E2=80=A2=20 138 Man. R. (2d) 298=20
R.=20 v. Hosie, 1996 CanLII 450 (ON C.A.) =E2=80=94 107=20 C.C.C. (3d) 385 =E2=80=A2 49 C.R. = (4th) 1 =E2=80=A2=20 37 C.R.R. (2d) 97 =E2=80=A2 91 O.A.C. 281=20
R.=20 v. M. (C.A.), 1996 CanLII 230 (S.C.C.) =E2=80=94 [1996]=20 1 S.C.R. 500 =E2=80=A2 105 C.C.C. = (3d) 327 =E2=80=A2=20 46 C.R. (4th) 269=20
R.=20 v. Mohan, 1994 CanLII 80 (S.C.C.) =E2=80=94 [1994] 2=20 S.C.R. 9 =E2=80=A2 18 O.R. (3d) = 160 =E2=80=A2 114 D.L.R. (4th) 419 =E2=80=A2 89 C.C.C. (3d) 402 =E2=80=A2 29=20 C.R. (4th) 243 =E2=80=A2 71 O.A.C. = 241=20
R.=20 v. W.(D.), 1991 CanLII 93 (S.C.C.) =E2=80=94 [1991] 1=20 S.C.R. 742 =E2=80=A2 63 C.C.C. = (3d) 397 =E2=80=A2=20 3 C.R. (4th) 302 =E2=80=A2 46 O.A.C. 352

Citation: RE:=20 College of Veterinarians of Ontario v. Pet Heaven et al., 2010 ONCJ = 358

THE = ONTARIO COURT OF=20 JUSTICE

COLLEGE OF=20 VETERINARIANS OF ONTARIO

[Prosecutor]

SHELLEY GREENBERG-BLECHMAN, ERIC BLECHMAN,=20 &

FILM LOCATIONS & ALL- STAR ACCOMMODATIONS = INC.,=20

carrying on business as PET = HEAVEN

[Defendants]

REASONS FOR JUDGMENT

Justice of the Peace Kevin V. = Madigan

Toronto, Ontario

August 23, 2010

COUNSEL FOR THE PROSECUTION:

Bernard Leblanc & Lisa Braverman

COUNSEL FOR THE DEFENDANTS:

Michael Pasquale

Prosecution Under The Veterinarians Act of=20 Ontario-College of Veterinarians Prosecuting Company Arranging For = In-Home=20 Euthanasia of Animals

Allegation of Pracising Veterinary Medicine = Without A=20 Licence-Alternative Allegation of Holding Out Oneself As Practising = Veterinary=20 Medicine-Sections 11 & 40 of the Statute

Director & Employee of Corporation Charged = Under=20 Sections 11(1)& 40(5)

Of the Statute

None of Three Defendants Raising Due Diligence = Defence-Defendants Merely Denying Commission of Acts Prohibited By = Statute

Corporate Defendant Not Owned or Managed By=20 Veterinarians As Required By Veterinarians Act

Use of Expert Witness To Establish Case of = Unauthorized=20 Practice

Declaration of Hostile Witness Under Common = Law=20 Principles-Court Permitting Prosecution To Cross Examine Its Own Witness = At=20 Large

Court Permitting Prosecution To Re-Open Case = After=20 Closure of Prosecution Case Due To Availability of New Evidence =

Defence Challenging Issuance & Execution = of Search=20 Warrants-Defence Alleging Charter Violations & Claiming Charter=20 Remedies

Under Section 24 of the Charter

Court Determining That Search Warrants Should = Not Have=20 Been Issued But Ruling It Had No Jurisdiction To Quash Search = Warrants-Court=20 Finding That No Charter Violations Had Occurred-Even If Charter = Violations=20 Occurred, Neither Stay Nor Exclusion of Evidence Appropriate In = Circumstances of=20 This Case

INTRODUCTION

This was an unusual = but=20 interesting case which consumed six days of trial. Much evidence was = adduced and=20 several complicated legal issues were raised and argued. In total, the=20 prosecution called ten witnesses and the defence called three witnesses. = However, due to legal issues which arose during trial, several witnesses = were=20 re-called to testify.

As mentioned above, = several=20 interesting legal issues were raised and argued. First, = circumstances=20 arose which required me to decide whether one witness should be declared = a=20 hostile witness at common law and be subject to cross-examination by the = party=20 calling him. Second, counsel for the defence disputed the necessity = for an=20 expert witness called by the prosecution. Third, the defence = challenged the=20 issuance and execution of three search warrants and invited me to = consider=20 remedies under section 24 of the Charter.

In the interests of = economy and=20 time, the prosecution and defence jointly requested that I conduct = blended=20 proceedings. In other words, I was asked to reserve judgment on the = various,=20 specific legal issues raised pending final submissions and final = judgment. This=20 request was granted. Extensive written submissions on the various legal = issues=20 were provided by the parties.

All proceedings were = held in=20 Toronto. The trial began February 5, 2009 and and continued on February = 6, 2009.=20 Two further days of trial were held on October 1 & 2, 2009. Final=20 submissions were heard on October 26, 2009. Sentencing submissions were = heard on=20 April 30, 2010.

OVERVIEW OF THIS=20 CASE

The following factual = circumstances were either proven by the evidence or conceded by the = defence:

After witnessing the = death of=20 their own pet several years ago, Eric Blechman and Shelley = Greenberg-Blechman=20 decided to open a business which would address the needs of pet owners = who were=20 coping with suffering pets who were near death. The business was = conducted by a=20 corporate entity which was owned by Shelley Greenberg-Blechman and which = conducted business under the trade name =E2=80=9CPet Heaven=E2=80=9D. = Although Ms.=20 Greenberg-Blechman was the sole director of the company, Eric Blechman = was=20 merely an employee.

The business offered = various=20 services to the pet-owning public. For example, the business arranged = for the=20 disposal of the remains of pets who had died. The company would arrange = for=20 either burial or cremation of the animal remains. Clients of the = business could=20 also choose to commemorate their pets by purchasing urns which would = hold the=20 cremated remains of their deceased pets.

Eventually, the = defendants=20 decided to offer prospective clients in-home euthanasia of their dying = or=20 suffering pets. This procedure was performed by a qualified veterinarian = arranged by the company.

It is the performance = of in-home=20 euthanasia which triggered this prosecution.

THE = PARTIES &=20 THE CHARGES

This prosecution was = initiated by=20 Ontario=E2=80=99s College of Veterinarians. In the province of Ontario, = veterinarians=20 have a monopoly over the provision of veterinary services. This monopoly = is=20 established and maintained by the Veterinarians Act. The = provisions of=20 this statute are enforced by the College of Veterinarians.

The defendants are = parties who=20 arranged in-home euthanasia of suffering animals for pet-owners. The = prosecution=20 alleges that the parties have breached the law by practising = veterinary=20 medicine without a licence. Alternatively, the prosecution alleges = that the=20 defendants have held themselves out to the public as practising = veterinary=20 medicine.

On the first day of = trial, the=20 informations alleging the charges were amended. The defence = consented to=20 this request for amendment by the prosecution. The amendment was sought = so that=20 the new wording would conform more precisely to the statutory wording of = section=20 11 of the Veterinarians Act. As explained by counsel for the = prosecution,=20 this new wording was not duplicitous since there were two = alternative=20 modes of committing the offence[1].=20 The new wording in the amended information merely clarified that both=20 alternative modes of committing the offence were alleged. The essence of = the=20 offence alleged against all three defendants is practising veterinary = medicine without a licence. The revised wording merely adds words = which=20 clarify that holding out as engaged in the practice of veterinary=20 medicine is alleged in the alternative.

In reply to the = allegations, the=20 defendants deny that they were practising veterinary medicine. Further, = they=20 deny that they were holding themselves out as practising veterinary = medicine.=20 Throughout the trial, the defendants contended that the prosecution had = failed=20 to prove the prohibited acts alleged against them. The joint position of = the=20 defendants was that they were merely offering pet-owners a = =E2=80=9Creferral service=E2=80=9D=20 which simply located qualified veterinarians who would attend = pet-owners=E2=80=99 homes=20 to euthanize their animals.

The corporate = defendant was a=20 corporate entity carrying on business as =E2=80=9CPet Heaven=E2=80=9D. = Throughout these reasons=20 for judgment, I refer to the corporate defendant by its trade name, = =E2=80=9CPet=20 Heaven=E2=80=9D, rather than its proper name, All-Star Accommodations = Inc.. This=20 corporation was charged, alternatively, with practising veterinary = medicine=20 without a licence and holding itself out as practising veterinary = medicine. It was agreed by the parties that these charges against = the=20 corporation allege strict liability offences[2].=20 See sections 11 and 40 of the Veterinarian Act.

Shelley = Greenberg-Blechman was=20 charged in her capacities as director and employee of the corporation. = See=20 sections 40(5)(a) and (b) of the Veterinarians Act. Her husband, = Eric=20 Blechman, was charged in his capacity as an employee of the corporation. = Since=20 Eric Blechman was merely an employee, and not a director, of the = corporation, he=20 was charged pursuant to section 40(5)(b) only. The wording of section = 40(5)=20 indicates that these offences are offences of strict liability by = providing that directors, officers, agents, and employees are liable = unless they=20 took =E2=80=9Call reasonable care to prevent commission of the = offence=E2=80=9D. Further, the=20 wording of the statute explicitly states that the liability of the = Blechmans is=20 dependent upon a prior finding of liability against the corporation.

Although the = prosecution=20 mentioned the =E2=80=9Cparties to an offence=E2=80=9D provision in = section 77 of Ontario=E2=80=99s=20 Provincial Offences Act, the charges actually laid and prosecuted = were=20 alleged violations of the Veterinarians Act, not the = Provincial=20 Offences Act. Thus, in fairness to the defendants, I have considered = liability under the Veterinarians Act only[3].=20

Note that the = relevant statutory=20 provisions are reproduced in the Appendix of these reasons for = judgment.

STRATEGY OF THE=20 DEFENCE

All three of the = defendants were=20 represented by the same counsel, Mr. Michael Pasquale, and advanced a = common=20 defence. At the commencement of proceedings, Mr. Pasquale indicated that = all=20 three defendants were simply denying that they had committed the conduct = prohibited by the Veterinarians Act. Further, he indicated that = the=20 defendants were putting the prosecution to strict proof of the = prohibited acts=20 which the prosecution attributed to them. However, later in the = proceedings, Mr.=20 Pasquale seemed to concede, or at least not seriously challenge, much of = the=20 factual circumstances on which the prosecution relied to prove its = case.

It must be emphasized = that, at no=20 time, did the defence formally raise a defence of due diligence = or=20 reasonable mistake of fact for any of the three defendants. Nor = did the=20 evidence adduced by the defence support such a defence.

Throughout these = proceedings, the=20 dispute between the parties focused on the interpretation of the = circumstances=20 disclosed by the evidence. There was little dispute about the = circumstances=20 themselves. In other words, the issue was not so much what happened = [=E2=80=9Cthe=20 facts=E2=80=9D] as the interpretation to be accorded to what happened. = In particular,=20 the issue was whether the undisputed circumstances rendered the = defendants=20 liable under the statute.

In brief, the = prosecution claimed=20 that the evidence should be interpreted so as to support its contention = that the=20 defendants were actually practising veterinary medicine or,=20 alternatively, that the defendants were holding themselves out to = the=20 public as practitioners of veterinary medicine.

In reply to the = various=20 allegations against the three defendants, the defence claimed that the = very same=20 evidence justified a conclusion that the defendants were only operating = a=20 =E2=80=9Creferral service=E2=80=9D for clients seeking to have qualified = veterinarians attend=20 their homes to euthanize their suffering animals. Further, the defence = argued=20 that, since the corporate defendant had not breached section 11(1) of = the=20 Veterinarians Act, neither the director [Shelley = Greenberg-Blechman] nor=20 the employee [Eric Blechman] could be liable under the statute.

It was not disputed = by the=20 defence that Pet Heaven was in the business of arranging in-home = euthanasia for=20 the suffering pets of paying clients. Further, it was not disputed that = the=20 company provided a duly qualified veterinarian to perform the = euthanasia.=20 Finally, it was not disputed that, in most instances, Pet Heaven clients = paid=20 the company an all-inclusive fee for the services which included the = $150.00 fee=20 paid/remitted by the company to the veterinarian.

LEGAL ISSUES=20 ADDRESSED

Prosecution=20 Witness Declared Hostile Under Common Law

In presenting its = case, the=20 prosecution elected to call evidence from Dr. Grigory Brodetsky. Dr. = Brodetsky=20 was the most-frequently used, licenced veterinarian which Pet Heaven = dispatched=20 to the homes of clients seeking in-home euthanasia for their pets. He = would=20 attend client homes and perform the requested animal euthanasia.

The problem for the = prosecution=20 was that Dr. Brodetsky was an un-cooperative witness. Even before the=20 prosecution called him to the witness box, I was informed of the = potential=20 problem. In particular, I was informed that the College of Veterinarians = of=20 Ontario had brought charges of professional misconduct against = Brodetsky=20 in his capacity as a veterinarian[4].=20 These charges arose from the same circumstances grounding these charges = against=20 Pet Heaven and the Blechmans. In response to this information, I = informed the=20 witness that his answers could not be used against him to convict him of = the=20 charges brought against him but only to convict him of perjury for = giving false=20 testimony[5].

During the course of = his initial=20 testimony at the commencement of these proceedings, Dr. Brodetsky gave = testimony=20 which was vague, evasive, and frequently contradictory. At times, his = answers=20 were so inconsistent that it was difficult to determine what his final = answer=20 was. Despite my assurances that he was not incriminating himself on his = own=20 charges, Dr. Brodetsky persisted in his failure to answer questions = accurately,=20 completely, and candidly. Indeed, his failure to be careful and = forthright=20 wasted much court time.

Early in the = proceedings, and=20 with the consent of the defence, I declared Dr. Brodetsky a witness = hostile to=20 the prosecution. Note that this was done under common law principles[6].=20 For technical reasons, he was not declared an adverse witness = under the=20 Ontario Evidence Act[7].=20 At common law, a =E2=80=9Chostile witness=E2=80=9D is one who has a = =E2=80=9Chostile animus=E2=80=9D against the=20 party calling him to testify. This hostility usually manifests itself in = the=20 witness=E2=80=99 failure to give his testimony fairly and truthfully. =

There is no doubt = that Dr.=20 Brodetsky satisfied this common law criteria for hostility. Obviously, = as trier=20 of fact in these proceedings, I had occasion to witness his performance = in the=20 witness box. His answers to basic, simple questions were unresponsive, = evasive=20 and contradictory. Further, his outstanding charges for professional = misconduct=20 caused him to assume a hostile orientation toward the prosecution.

The declaration of = hostility=20 under the common law permitted the prosecution to cross-examine Dr. = Brodetsky at=20 large. However, given the continued and determined lack of co-operation = from Dr.=20 Brodetsky, this declaration did not have the expected benefit. Although = the=20 declaration made it possible for the prosecution to shorten his = appearance in=20 the witness box, the vague, evasive, unresponsive and contradictory = answers=20 continued. Dr. Brodetsky=E2=80=99s testimony was so wasteful of the = court=E2=80=99s time that,=20 had either the prosecution or the defence asked that I cite Dr. = Brodetsky for=20 contempt of court, I would have seriously considered the request.

Ultimately, for = several reasons,=20 the initial testimony of Dr. Brodetsky was not seriously damaging for = the=20 prosecution. First, Dr. Brodetsky was re-called later in the proceedings = after=20 he had dealt with his charges and when he was in a relatively more = co-operative=20 frame of mind[8].=20 Second, and more importantly, the defence eventually and ultimately = conceded=20 many of the points Dr. Brodetsky was called to establish. In other = words, the=20 defence was not denying the basic circumstances Brodetsky was called to = attest=20 or confirm. Third, much of Brodetsky=E2=80=99s evidence was corroborated = by=20 documentation in the form of invoices which clearly demonstrated that he = had=20 attended at the request of Pet Heaven to euthanize animals.

The = Defence=20 Challenges The Prosecution=E2=80=99s Expert

Normally, under our = common law=20 adversarial system, witnesses are not entitlted to express opinions or = draw=20 conclusions[9].=20 They must confine their testimony only to what they themselves actually = observed=20 or experienced. However, there is an exception for expert witnesses = whose expert=20 opinions may assist the court in its task of resolving issues and making = findings.

Before a court = qualifies an=20 expert witness, the court must make a prior determination that the = expert=20 opinion is indeed =E2=80=9Cnecessary=E2=80=9D. The tendered expert must = have special=20 qualifications or expertise , relevant to an issue before the court, = which would=20 enable him to assist the court.

Counsel for the = prosecution, Mr.=20 Leblanc, sought to qualify Dr. Nigel Gumley as an expert in the practice = of=20 veterinary medicine. Due to the failure of the statute to define the key = word=20 =E2=80=9Cpractise=E2=80=9D, Mr. Leblanc reasonably believed that I would = benefit from expert=20 evidence concerning what constituted the =E2=80=9Cpractice of veterinary = medicine=E2=80=9D.

In making his request = that I=20 qualify Dr. Gumley, Mr. Leblanc contended that, in cases of unauthorized = practice, expert evidence is routinely admitted to assist the court in = its=20 decision-making. A review of the relevant caselaw confirms this = assertion[10].

For the defence, Mr. = Pasquale=20 objected to the admissibility of this expert evidence on the grounds = that it was=20 not =E2=80=9Cnecessary=E2=80=9D to assist me to resolve issues or make = findings. In other words,=20 the defence invited me to interpret the key word = =E2=80=9Cpractise=E2=80=9D according to its=20 everyday or dictionary meaning. The defence view was that there was no = need for=20 =E2=80=9Cexpert evidence=E2=80=9D to assist me to determine the meaning = of the word. The defence=20 concern was not Dr. Gumley=E2=80=99s qualifications [which were readily = conceded] but=20 that it would simply be a waste of time to hear and consider this = unnecessary=20 evidence.

While considering = whether to=20 admit Dr. Gumley=E2=80=99s expert evidence, I was guided by and faithful = to the relevant=20 test for necessity as established by the Supreme Court of Canada in = R. v.=20 Mohan 1994 CanLII 80 (S.C.C.), [1994] 2 = S.C.R. 9. I=20 also considered the Ontario Court of Appeal=E2=80=99s endorsement of = expert evidence in=20 unauthorized practice cases. See Regina Ex Rel Doughty v. = Manuel=20 (1982) 38 = O.R. (2d) 321=20 (C.A.)

Ultimately, after due = consideration of the submissions and caselaw respecting this legal = issue, I=20 determined that it was indeed necessary to hear =E2=80=9Cexpert = evidence=E2=80=9D from Dr.=20 Gumley. Given the lack of statutory definition of such an important = term, I do=20 believe that I benefited from hearing Dr. Gumley=E2=80=99s opinion on = what constituted=20 the =E2=80=9Cpractise of veterinary medicine=E2=80=9D. In particular, I = learned from Dr. Gumley=20 that performing euthanasia on an animal is an integral part of the = practice of=20 veterinary medicine. Further, Dr. Gumley was able to explain the = science,=20 medicine, procedures and standards applicable to the performance of = euthanasia=20 on animals. This information was crucial in assisting me to determine = whether=20 the defendants had practised, or held themselves out as practising, = veterinary=20 medicine.

Of crucial importance = was Dr.=20 Gumley=E2=80=99s opinion that animal euthanasia be practised only in the = context of a=20 proper =E2=80=9Cveterinary client patient relationship=E2=80=9D which = would safeguard and foster=20 the interests of both the animal and the pet owner. Such a relationship = was=20 indispensable to establishing open and sympathetic communication about = treatment=20 options for suffering animals. It is essential to educate a pet owner = about his=20 animal=E2=80=99s condition and the treatment options available to = address the specific=20 case of his particular animal.

As explained by Dr, = Gumley,=20 animal euthanasia is much more than simply administering a needle. It = involves=20 the veterinarian establishing rapport with both the pet owner and the = animal.=20 Further, it requires full and frank discussion of treatment options so = that a=20 pet owner can feel =E2=80=9Cvalidated=E2=80=9D about his treatment = decision for his pet such=20 that he can give the veterinarian truly =E2=80=9Cinformed = consent=E2=80=9D about the treatment=20 [euthanasia] chosen for his particular animal. Finally, there is a need = for=20 proper record-keeping of medical records to insure proof of ownership = and=20 informed consent and proper controls on the use of the restricted drugs = used to=20 euthanize animals.

In his capacity as a = qualified=20 expert witness, Dr. Gumley was afforded the opportunity to comment upon = the=20 testimony given by Pet Heaven clients. Through his review and analysis = of the=20 testimony of the pet owners who had their pets euthanized by Pet Heaven, = Dr.=20 Gumley was able to highlight the risks associated with failure to = develop and=20 foster a proper =E2=80=9Cveterinary client patient = relationship=E2=80=9D. In particular, he=20 noted the risks of substandard performance of the procedure. Dr. Gumley = was able=20 to enumerate several deficiencies in Pet Heaven=E2=80=99s = substandard performance=20 of animal euthanasia for its clients. Indeed, several clients had = testified=20 about the trauma of witnessing their pets experience increased or = prolonged=20 suffering through the apparent incompetence of the vet provided by Pet=20 Heaven.

The matters = respecting which Dr.=20 Gumley was permitted to provide expert testimony were matters outside or = beyond=20 the experience and/or knowledge of a lay person. His expertise was = instrumental,=20 and indeed indispensable, in assisting the court to resolve whether the=20 defendants were breaching the Veterinarians Act as alleged. = Without Dr.=20 Gumley=E2=80=99s expert opinion, I would have experienced great = difficulty in resolving=20 whether the defendants=E2=80=99 conduct amounted to unauthorized = practice of veterinary=20 medicine.

Dr. Gumley=E2=80=99s = testimony convinced=20 me that the defendants had effectively practised veterinary medicine = through the=20 agency of Dr. Grigory Brodetsky. In his capacity as the veterinarian = performing=20 animal euthanasia for Pet Heaven, Dr. Brodetsky was the face of Pet = Heaven in=20 the minds of the Pet Heaven clients. I agree with the prosecution claim = that, at=20 all material times, he was either an employee of, or independent = contractor=20 engaged by, Pet Heaven. At no time was Dr. Brodetsky merely an = independent=20 veterinarian responding to a page from a referral service.

Contrary to the = suggestion of the=20 prosecution, I rejected Dr. Gumley=E2=80=99s =E2=80=9Cevidence=E2=80=9D = respecting the corporate=20 practice of veterinary medicine and the interpretation and application = of the=20 =E2=80=9Cholding out=E2=80=9D provisions in the statute. His = =E2=80=9Copinion=E2=80=9D on these legal matters=20 was truly unnecessary and indeed irrelevant [beyond the scope of his = expertise].=20 These are legal questions for the Court.

The = Re-Opening Of=20 The Prosecution=E2=80=99s Case

To properly address = this legal=20 question, it is important to understand the chronology of these = proceedings.=20 This trial began in February 2009 and was adjourned to October 2009. In = the=20 meantime, on August 25, 2009, Dr. Brodetsky appeared before the = Discipline=20 Committee of the College of Veterinarians of Ontario to address his = charges of=20 professional misconduct. At his hearing on that date, Dr. = Brodetsky=20 admitted a series of facts which are directly relevant to this = prosecution of=20 Pet Heaven and the Blechmans. In particular, Dr. Brodetsky admitted that = he had=20 practised veterinary medicine, and held himself out as = practising=20 veterinary medicine, through Pet Heaven. In other words, he admitted = that he=20 helped the defendants in this case to do precisely what they are accused = of=20 doing.

On October 1, 2009, = at the=20 continuation of this trial but after the prosecution had closed its = case[11],=20 the prosecution brought a motion to re-open its case against the = defendants. The=20 prosecution was seeking to have me admit into evidence a Certificate of = the=20 Registrar of the College of Veterinarians of Ontario which summarized = the=20 admissions made by Brodetsky. These admissions were viewed by the = prosecution as=20 =E2=80=9Chighly probative evidence against the defendant in these = proceedings=E2=80=9D. For the=20 prosecution, Mr. Leblanc emphasized the obvious point that this = Registrar=E2=80=99s=20 Certificate constituted =E2=80=9Cnew evidence=E2=80=9D which was not = available before the=20 closure of the prosecution=E2=80=99s case against these defendants. = According to the=20 prosecution, my authority for admitting the certificate evidence was = section 44=20 of the Veterinarians Act [12]

The defence resisted = the=20 prosecution motion to re-open its case. The reason given was that the = defendants=20 would be =E2=80=9Cprejudiced=E2=80=9D by the admission of the new = evidence. Specifically, the=20 defendants would be deprived of the opportunity of challenging the = admissions in=20 the Registrar=E2=80=99s Certificate. Given that Dr. Brodetsky had proven = to be an=20 uncooperative witness who had given unresponsive and even contradictory=20 testimony when first called, counsel for the defence was justifiably = concerned=20 that I would now be asked to take these =E2=80=9Cadmissions=E2=80=9D at = face value.

Ultimately, I = permitted the=20 prosecution to re-open its case and to admit into evidence the = Registrar=E2=80=99s=20 Certificate. However, given the legitimate concern of counsel for the = defence, I=20 insisted that the prosecution re-call Dr. Brodetsky to the witness = stand. In=20 doing so, I had two purposes in mind. First, given his previous = contradictory=20 testimony, I wished to assure myself that Dr. Brodetsky would actually = adopt the=20 =E2=80=9Cadmissions=E2=80=9D when he was re-called. This would be a = rather fortuitous=20 opportunity for the prosecution to rehabilitate the hostile witness = which the=20 prosecution had been forced to call. Second, a second opportunity to=20 cross-examine Dr. Brodetsky would remedy any =E2=80=9Cprejudice=E2=80=9D = to the defendants=20 created by the admission of this new evidence.

In my judgment, it = was necessary=20 to permit the prosecution to re-open its case. Dr. Brodetsky=E2=80=99s = obvious and=20 continuing hostility toward the prosecution, when he initially = testified, had=20 prevented the prosecution from obtaining straightforward answers to = simple=20 questions about basic matters of fact. These were matters of fact on = which the=20 prosecution case rested. Further, these matters of fact were = unequivocally=20 conceded by the defence only late in the proceedings after the = prosecution had=20 presented its case. It would be gravely prejudicial to the prosecution = to permit=20 an obviously hostile witness to deliberately jeopardize the prosecution = and=20 thereby to undermine the administration of justice.

Respecting my = jurisdiction to=20 permit the prosecution to re-open its case, a court has discretion to do = so when=20 new evidence becomes available after the prosecution has closed its = case.[13]

Search &=20 Seizure Issues

On January 15, 2008, = Investigator=20 Martin Fischer sought and obtained three search warrants from a Justice = of the=20 Peace in Toronto. These warrants authorized searches of the = Blechmans=E2=80=99=20 residential premises and two vehicles which were associated with that=20 residential address. On January 17, 2008, the warrants were executed. = The object=20 of the search and seizure was records related to the business carried on = by Pet=20 Heaven. Among the business records seized were invoice books, for the = period=20 January 2005 to January 2008, and cheque stubs showing evidence of = payment for=20 services rendered. The documentary evidence seized constituted real = evidence in=20 its own right and it was also used to examine and cross examine = witnesses,=20 especially Shelley Greenberg-Blechman and Dr. Brodetsky.

During the course of = this trial,=20 Mr. Pasquale raised and argued several search and seizure issues. In = particular,=20 the defence challenged both the issuance of the three search warrants = and the=20 manner in which the warrants were executed. During the discussion of = these=20 issues, Mr. Pasquale indicated that the defendants were seeking all = available=20 remedies under section 24 of the Canadian Charter of Rights &=20 Freedoms. Specifically, the defence sought, a judicial stay of=20 proceedings under section 24(1) of the Charter. Alternatively, the = defence=20 sought exclusion of evidence under section 24(2) of the = Charter.

Issuance of The=20 Three Search Warrants

To begin with, the = defence=20 challenged the issuance of the three search warrants by the Justice of = the=20 Peace. The basis for this challenge was certain specified deficiencies = in the=20 information to obtain the search warrants. The information to=20 obtain a search warrant is a written and sworn application which is=20 presented to a judicial officer as the basis for a request for search = and=20 seizure powers. A person seeking a search warrant must submit a sworn, = written=20 application which clearly and coherently discloses the basis for his = belief that=20 evidence of an offence will be found at a specified location. The = defence argued=20 that the various cumulative deficiencies effectively deprived the = Justice of the=20 Peace of jurisdiction to issue the warrants.

Without question or = doubt, Martin=20 Fischer=E2=80=99s search warrant application was seriously deficient in = several=20 significant respects.

The first fundamental = defect of=20 the search warrant application is its lack of=20 readability/intelligibility[14].=20 The problem here is the lack of a coherent narrative which synthesizes = and=20 summarizes the numerous appendices which are part of the application.=20 Investigator Fischer should have provided a narrative which summarized = his=20 investigation, his information pertaining to this case, and his sources, = beliefs=20 and conclusions. Instead, there was no narrative whatsoever. The = reviewing=20 judicial officer was left to wrestle with numerous appendices which only = indirectly, partially, and inadequately justified the request for the = search and=20 seizure powers.

The second = fundamental defect=20 proceeds directly and immediately from the first. Investigator Fischer = failed to=20 provide the Justice of the Peace with an overall, coherent theory of his = case. A=20 coherent theory of the case will provide the judicial official with a = rational=20 measuring stick against which to evaluate the various items of = information=20 contained in the search warrant application. In the absence of an = explicit,=20 coherent theory of the case, the judicial official is deprived of the = standard=20 by which to evaluate the significance of the information attested by the = applicant. From a practical perspective, this means that the judicial = official=20 is invited or compelled to speculate about the meaning and significance = of the=20 information provided. This makes neutral, objective review of the = application=20 virtually impossible because the judicial official is invited to become = a=20 participant in making the case against the suspects.

In this case, Fischer = fails to=20 explicitly, clearly, and coherently explain that he believes the = Blechmans are=20 operating a business, under the trade name of =E2=80=9CPet = Heaven=E2=80=9D, which may be=20 breaching provisions of Ontario=E2=80=99s Veterinarians Act. = Although this is=20 stated indirectly in a roundabout way in one of the appendices, it is = not stated=20 directly, explicitly and precisely to the Justice of the Peace.

The various = appendices, which=20 form part of Fischer=E2=80=99s application, leave much to be desired in = specifying the=20 actual, suspected offences attributable to the Blechmans or to Pet = Heaven.=20 Further, at no time does he explain specifically and explicitly why he = expects=20 to find evidence of the suspected offences at the Blechman residence or = in the=20 Blechman vehicles.

Further, the = transcript of the=20 interaction between Investigator Fischer and the Justice of the Peace = reveals=20 confusion, on the part of both, about who precisely the = suspects/defendants are.=20 In addition, Fischer failed to explicitly articulate how the information = in his=20 various appendices supported his theory of the case.

The overall lack of = coherence=20 compels the judicial officer to speculate about Investigator = Fischer=E2=80=99s=20 knowledge, beliefs and sources. Search and seizure law requires Fischer = to=20 explain the coherence of his case to the judicial officer. The quality = of the=20 application strongly suggests that this was not properly done.

Third, = Fischer=E2=80=99s application=20 fails to specify what he knows or what he believes and the specific = sources for=20 that knowledge or belief. In other words, he fails to establish and = explain a=20 chain of knowledge, and the sources of that knowledge, which lead him to = believe=20 that evidence of certain specified offences will be found at certain = specified=20 locations. Under Canadian search and seizure law, search warrant = applicants must=20 source information[15]=20 to permit proper evaluation of search warrant applications.

With respect to = Fischer=E2=80=99s sources=20 of information, there are four draft will-say statements among the = appendices in=20 the search warrant application. Only two of these will-say statements = are dated=20 and signed. During the trial, Investigator Fischer disclosed that he had = drafted=20 the will-say statements and forwarded them to the complainants for = review and=20 signature. However, this information was not communicated directly, = specifically=20 and explicitly to the Justice of the Peace at the time the search = warrant=20 applications were submitted.

Further, Fischer = failed to=20 disclose that he had personally observed the two vehicles, for which he = was=20 seeking search warrants, at the Blechman residence. In other words, he = failed to=20 disclose that his source for this information was his own personal = observation=20 of the vehicles at the Blechman residence.

Nor did Fischer = specifically and=20 explicitly state his belief that he expected to find evidence of illegal = practice of veterinary medicine in these vehicles because he believed = the=20 vehicles to be used in the conduct of the Pet Heaven business. Based = upon the=20 complaints received by the Veterinary College of Ontario, Fischer did = have=20 information that Eric Blechman was using a motor vehicle to dispose of = animal=20 remains. However, this item of information was not specifically and = explicitly=20 brought to the attention of the judicial officer considering the request = for the=20 search warrants for the vehicles.

Fourth, the = interaction between=20 Investigator Fischer and the Justice of the Peace breaches the four = corners=20 rule[16]=20 which prevents a search warrant applicant from supplementing his sworn, = written=20 application with additional verbal comments. The rationale underlying = the=20 four corners rule is the facilitation of judicial review of the = issuance=20 of the search warrant. The judicial official, who considers the search = warrant=20 application, must confine himself to consideration of the grounds in the = written=20 and sworn application. He must not consider anything which is not = specifically=20 addressed in the written application[17].=20 The rule enables a higher court to determine whether the written grounds = were=20 sufficient to give the issuing justice jurisdiction to issue the search=20 warrant.

The transcript of the = interaction=20 between Fischer and the Justice of the Peace was filed as an exhibit. = That=20 transcript reveals a conversation in which Fisher effectively = supplements his=20 written application with verbal comments which explain who the = defendants are=20 and which offences are being investigated. In other words, the Justice = of the=20 Peace had to ask Fischer who the defendants were because it was not = immediately=20 clear from the face of the written application. In answering this = inquiry,=20 Fischer himself seems somewhat tentative in his answer that Pet Heaven = was also=20 a defendant. Besides violating the four corners rule of search = and=20 seizure law, this interaction reveals that the application, on its own, = was=20 insufficient to provide the judicial officer with a meaningful and = coherent=20 synopsis of the case

In this case, the = Justice of the=20 Peace was uncertain about the identity of the suspects in this case.=20 Investigator Fischer gave verbal answers which effectively and = improperly=20 supplemented his written search warrant application.

For all the reasons = mentioned=20 above, had I been the judicial officer to whom Mr. Fischer applied for = these=20 search warrants, I would not have issued them. Although I do not have = the=20 jurisdiction to quash the three search warrants, I do have authority to = declare=20 that they were illegally issued[18].=20 In my judgment, the applications for these warrants were seriously = deficient and=20 fatally flawed. In my judgment, these three warrants were illegally = issued. In=20 other words, the Justice of the Peace did not have sufficient = grounds to=20 issue the warrants. Consequently, the insufficient grounds deprived the = Justice=20 of the Peace of jurisdiction to issue the warrants.

Execution of The=20 Search Warrants

On January 17, 2008, = the three=20 search warrants were executed by Investigator Fischer with the = assistance of=20 three police officers. The defence challenged the manner in which the = warrants=20 were executed.

First, the defence = claimed that=20 Investigator Fischer=E2=80=99s manner was officious and aggressive = toward the=20 defendants. It was claimed that Fischer had officiously stated that the = searches=20 could be performed either =E2=80=9Cthe hard way or the easy = way=E2=80=9D. The defence claim was=20 that the manner of conducting the search intimidated the defendants and = thereby=20 tainted the whole search and seizure. To this claim, the prosecution = responded=20 that Investigator Fischer, in the interests of minimizing inconvenience = to the=20 defendants, was merely endeavouring to execute the searches in an = efficient=20 manner.

Second, it was = claimed that=20 Fischer and the Toronto police officers had exceeded the scope of their = search=20 powers by searching a third motor vehicle which was not specified in the = search=20 warrants. This claim was effectively met by the prosecution reply that = Eric=20 Blechman had invited Fischer and/or the police officers to search the = third=20 vehicle for which they did not have a search warrant. In other words, = based upon=20 certain specified words and actions on the part of Eric Blechman, Mr. = Fischer=20 honestly and reasonably believed that Eric Blechman was consenting to = search of=20 the vehicle for which there was no warrant.

Respecting the manner = in which=20 the search warrants were executed at the Blechman residence, Eric = Blechman=E2=80=99s=20 testimony was not consistent with the testimony of Investigator Martin = Fischer=20 or that of the three police officers who assisted him during the search. = However, the testimony of Mr. Fischer was indeed consistent with the = testimony=20 of the three officers respecting the circumstances of the search.

With respect to the = manner of the=20 search, Mr. Blechman claimed that Fischer refused to disclose the reason = for the=20 search. Obviously, this claim is untenable because the search was = successfully=20 conducted and the relevant business documents were provided. This claim = also=20 contradicts the testimony of Fischer and the police officers who stated = that the=20 purpose and authority of the search was stated and that, consequently, = the=20 relevant documents were produced by the Blechmans who appeared = co-operative=20 throughout the conduct of the search.

Mr. = Blechman=E2=80=99s claim, that the=20 search of the third motor vehicle, for which there was no search = warrant, was=20 not consensual, contradicts the police testimony which corroborated = Fischer=E2=80=99s=20 claim that the search was consensual. Mr. Blechman=E2=80=99s = recollection of certain=20 details also differed from the recollection of Fischer and the three = police=20 officers. For instance, Blechman stated that Fischer had simply entered = the=20 third vehicle without seeking prior permission. However, Fischer = indicated that=20 he merely peered through the opened door of the third vehicle without = actually=20 entering it.

In final submissions, = counsel for=20 the prosecution commented that defence counsel=E2=80=99s failure to = confront the police=20 officers about Eric Blechman=E2=80=99s allegation, of impropriety in the = conduct of the=20 search, effectively prohibited the defence from raising the manner of = the search=20 as a constitutional issue[19].=20 Indeed, there is merit to this submission. The police officers were = neutral=20 witnesses who had been called precisely to address the claims of = impropriety=20 made by the Blechmans.

Although I need not = determine the=20 details of what actually happened during the execution of the search, = even if=20 the objectionable conduct occurred as claimed by the defence, such = conduct would=20 not justify exclusion of the fruits of the search. Nor would it justify = a=20 judicial stay of proceedings. First, the officious and aggressive = conduct=20 imputed to Investigator Fischer was simply not sufficiently serious to = require=20 or justify exclusion of evidence or a judicial stay. = Second, even=20 if Fischer and the police officers did exceed the scope of their search = powers=20 by searching the third vehicle without a warrant, no incriminating = evidence was=20 found in the third vehicle and such an inconsequential breach of Charter = rights=20 could not justify exclusion or stay.

Remedies Sought=20 Under Section 24 of the Charter

In my judgment, for = the following=20 reasons, neither of the remedies sought under section 24 of the Charter = should=20 be granted.

Although I do decline = to make=20 specific findings about what occurred during the execution of the search = warrants, I do believe that the prosecution version of the search is = much more=20 likely to have occurred than the version suggested by the defence. = However, as=20 submitted by Mr. Leblanc for the prosecution, even if I do accept the = defence=20 version of the execution of the search warrants, the impugned conduct = does=20 not justify either exclusion of the business records = seized or a=20 judicial stay of proceedings.

It must be remembered = that, even=20 if the search warrants were illegally issued, Investigator Fischer and = the=20 police were acting in good faith in their execution of the search = and=20 seizure powers granted by the warrants. Fischer had sought and obtained = prior=20 judicial approval of the search and seizure of business records from = the=20 residence. He had every right to rely upon the warrants which are = presumed valid=20 until a court rules otherwise. Further, the evidence seized from the = Blechman=20 residence was non-conscriptive[20]=20 and directly probative of the issues raised in this prosecution.

Even if Martin = Fischer was=20 somewhat officious and aggressive in his execution of the search = warrants, such=20 behaviour would not rise to the level of tainting the whole search and = seizure=20 pursuant to the search warrants. Had Fischer and the police wantonly = damaged or=20 destroyed property during the conduct of the search, then perhaps = exclusion=20 of evidence or a judicial stay would have been appropriate. = However,=20 that was not the claim made by the defence. Very simply, the defence = claim was=20 that Fischer had been somewhat rude and abrupt while addressing the=20 Blechmans.

Further, even if = Invesitgator=20 Fischer or Officer Webb exceeded their search powers by searching = a third=20 motor vehicle for which they had no search warrant, this was an = inadvertent=20 mistake based on their reasonable and good faith belief that Eric = Blechman had consented to the search of the third vehicle by his words = and=20 actions. In any event, no evidence was found in the third vehicle.

It must be remembered = that this=20 was a search of a residence for business records associated with the = conduct of=20 a business at or from that residential address. According to the = caselaw, this=20 means that the defendants had a lesser expectation of privacy in = these=20 circumstances[21].

A judicial stay of = proceedings is indeed a draconian remedy which is appropriate only = in the=20 situation of a very serious Charter violation. It is a last resort = suitable only=20 for the clearest of cases. To succeed in having these proceedings = stayed, the=20 defence would have to demonstrate that compelling the defendants to = stand trial=20 would offend the principles of fundamental justice which underlie the=20 community=E2=80=99s sense of fair play and decency and that a = stay was necessary=20 to prevent abuse of the court=E2=80=99s process through oppressive and = vexatious=20 proceedings[22].=20 A stay would be considered only where all other avenues for = protecting the=20 defendant=E2=80=99s right to make full answer and defence have = been exhausted.=20 This is a very high threshold which the defence has failed to meet in = this=20 case.

The leading caselaw = on exclusion=20 of evidence[23]indicates=20 that the main factors for consideration are: the seriousness of the=20 Charter-infringing state conduct; the impact of the breach on the=20 Charter-protected interest of the defendant; and society=E2=80=99s = interest in the=20 adjudication of the case on its merits.

Applying these = exclusion criteria=20 to the circumstances of this case yields the following results. First, = if there=20 were any Charter breach, it was a good faith mistake on the part = of state=20 agency. I find that there were no grounds to conclude that any Charter = breach=20 was deliberate, flagrant, or part of a larger pattern = of=20 disregard for Charter rights. Investigator Fischer and the police = were=20 executing search warrants whose validity they had no reason to doubt. = Further,=20 any search of the third vehicle without a warrant was done with the = apparent=20 consent of Eric Blechman. Second, the items seized from the Blechman = residence=20 were non-conscriptive evidence in the form of business records in = which=20 they had a diminished expectation of privacy[24].=20 Third, exclusion of this evidence would have seriously prejudiced the=20 prosecution=E2=80=99s presentation of its case and thereby undermined = the adjudication=20 of this case on its merits. Not only were the business records = substantive=20 evidence against the defendants, the business documents also assisted = the=20 prosecution in cross-examining the defendants and its own hostile = witness.

For the reasons = given, I conclude=20 that neither a judicial stay nor exclusion of evidence is=20 appropriate in the circumstances of this case.

CREDIBILITY &=20 EVIDENTIAL FINDINGS

This section has two = purposes.=20 First, it will address my findings respecting the credibility of key = witnesses.=20 Second, it will enumerate my factual findings based upon the evidence=20 which I have found credible.

Findings=20 Respecting Credibility of Prosecution Witnesses

My findings = respecting the=20 credibility of Dr. Grigory Brodetsky have been expressed elsewhere in = this=20 judgment. I will not repeat them here.

In my view, each of = the four=20 complainant witnesses who testified for the prosecution should be = considered=20 credible. These witnesses were Margaret Routh, Megan McGurk, Gladys = Munroe, and=20 Anne MacDonald. Each was called to detail her experience with Pet = Heaven. Each=20 of the four related her testimony in a forthright and straightforward = manner.=20 Each witness was able to relate useful information and to answer = follow-up=20 questions. None of these witnesses was cross-examined by counsel for the = defence, except for Margaret Routh who was very briefly cross-examined. = Quite=20 frankly, I found no reason to doubt or disbelieve anything attested by = any of=20 these witnesses.

Investigator Martin = Fischer was=20 called to explain his investigation into the business of Pet Heaven and = the=20 Blechmans. It was Fischer who personally conducted the investigation and = who=20 executed the search warrants at the Blechman residence which resulted in = the=20 seizure of incriminating business documents. Mr. Fischer is the only=20 investigator employed by Ontario=E2=80=99s College of Veterinarians. = Aside from some=20 certificates, his qualifications as an investigator are somewhat = limited. He=20 does not have a police background. Nor has he had any formal training = respecting=20 the preparation of search warrant applications, a fact which was evident = in this=20 case. However, as a witness, he gave testimony which was = straightforward,=20 detailed and forthright. I found no reason to doubt or disbelieve = anything he=20 said on any material point.

Findings=20 Respecting The Credibility of Defence Witnesses

The most important = witness for=20 the defence was Shelley Greenberg-Blechman. She was the owner, director, = and=20 employee of the corporation through which the Pet Heaven business was = conducted.=20 Throughout most of her testimony, Ms. Blechman presented as an = unresponsive,=20 difficult witness. Her discomfort in the witness box was evident from = beginning=20 to end. Her answers tended to be vague, hesitant and unhelpful, even = when=20 questioned by defence counsel. Ms. Blechman feigned difficulty = understanding the=20 simplest of questions. She was cautioned by me several times about the=20 importance of answering questions accurately, completely, and candidly. = These=20 cautions were frequently disregarded. Ms. Blechman found it painfully = difficult=20 to admit anything which she thought or suspected might undermine the = defence=20 case or strengthen the prosecution case. During cross-examination, she = had to be=20 repeatedly confronted with documentation to encourage her to give a = truthful=20 answer. Quite frankly, I found it difficult to believe anything Ms. = Blechman=20 attested unless there was corroboration.

Eric Blechman was the = second most=20 important witness for the defence. He was the employee of the = corporation who=20 attended clients homes to collect money and dispose of the animal = remains. His=20 testimony featured unlikely accounts of events. His versions of events = tended to=20 be self-serving for the defence but inconsistent with other evidence. = For=20 example, his testimony about the circumstances of the execution of the = search=20 warrants at the Blechman residence is simply not credible. In fact, his=20 recollection is directly contradicted by Investigator Martin Fischer and = the=20 three police officers who were assisting Fischer to conduct the search. = At other=20 times, he provided answers which were vague or not candid. Overall, I = would not=20 accept Mr. Blechman=E2=80=99s testimony, on any material point, without = some=20 corroboration.

Although I have made = adverse=20 findings respecting the credibility of both Eric Blechman and Shelley=20 Greenberg-Blechman, I have not automatically concluded that they = must be=20 guilty of the charges simply because of their lack of candour. I = am=20 mindful of the necessity to adjudicate their liability in accordance = with the=20 substantive evidence which I do determine to be credible.

Factual Findings=20 Based On The Evidence

This section will = not be=20 an exhaustive or comprehensive review of the testamentary and = documentary=20 evidence. Such a review is impractical and unnecessary, especially in a = case=20 involving thirteen witnesses and six days of trial. I will simply = summarize and=20 highlight key pieces of evidence which are specifically relevant to the = charges=20 and which merit particular mention.

It is imperative to = understand=20 that most of the circumstances which formed the factual foundation of = the=20 prosecution=E2=80=99s case were eventually and ultimately conceded by = counsel for the=20 defence. For instance, the defence conceded that Pet Heaven and the = Blechmans=20 were engaged in a business which arranged for a veterinarian to attend = the homes=20 of paying clients for the purpose of performing animal euthanasia on = suffering=20 or dying pets. What the defence did not concede was that = provision of=20 this service amounted to the unauthorized practice of veterinary = medicine.

Although the defence = did concede=20 much of the factual basis for the prosecution case, the defence = concessions were=20 made informally only after the prosecution had presented its case = against the=20 defendants.

The prosecution began = by adducing=20 evidence of Pet Heaven=E2=80=99s advertisement and promotion of its = business.=20 Specifically, there were two ways in which Pet Heaven advertised its = in-home=20 animal euthanasia service. First, there was a postcard which was = circulated to=20 the offices of veterinarians and at pet shows. Second, there was = evidence of a=20 website maintained by Pet Heaven which described the services they = offered. Both=20 the postcard and the website mentioned =E2=80=9Cour doctors=E2=80=9D = when describing the animal=20 euthanasia service.

The prosecution = adduced evidence=20 from several Pet Heaven clients who were dissatisfied with the manner in = which=20 the attending veterinarian [Dr. Brodetsky] performed the animal = euthanasia.=20 These witnesses were Margaret Routh, Megan McGurk, Gladys Munroe, and = Anne=20 MacDonald. All of these witnesses testified about their experience with = the Pet=20 Heaven-provided veterinarian who euthanized their animals. Several of = these=20 witnesses complained that the attending vet had actually performed the=20 euthanasia incompetently thereby exposing their suffering or dying = animal to=20 increased suffering.

Typically, according = to these=20 complainants, they had contacted Pet Heaven by phone and had spoken to = Shelley=20 Greenberg-Blechman who made all the arrangements for a vet to attend = their homes=20 to perform the animal euthanasia. Significantly, it was Shelley=20 Greenberg-Blechman who would actually choose the vet who would be sent = to the=20 client home. She actively handled all the office business and even = responded to=20 client complaints[25].=20 Eric Blechman usually attended the client=E2=80=99s home to do the = necessary paperwork,=20 to collect the money and/or to dispose of the animal remains.

All of the = complainants[26]=20 confirmed that there was no pre-existing relationship between the = attending=20 veterinarian and either the paying client or the suffering animal. = Further, the=20 complainants confirmed that the attending vet did not inquire about the = medical=20 history of the animals. Nor did the attending vet discuss any treatment = options=20 other than euthanasia. All of the clients honestly and reasonably = believed that=20 they were dealing directly with Pet Heaven rather than the attending vet = with=20 whom they had no pre-existing relationship. In other words, the clients=20 reasonably believed that Pet Heaven, and not the attending vet, was the = one=20 providing the service. This particular information, respecting how Pet = Heaven=20 actually provided the service and billed for it, would take on much = greater=20 significance after the expert testimony of Dr. Nigel Gumley was = admitted.

During the trial, the = evidence=20 respecting the billing practice of Pet Heaven established the following: = the=20 usual charge for animal euthanasia was $250. From this fee, $150 was = paid to the=20 attending vet [usually Dr. Brodetsky]. This billing practice was = conclusively=20 demonstrated by the Pet Heaven business documentation which was seized = from the=20 Blechman residence, when investigator Fischer executed the search=20 warrants. This business documentation [invoices] not only demonstrated = the=20 billing practice of Pet Heaven but also confirmed that Dr. Brodetsky was = the=20 usual veterinarian chosen by Shelley Greenberg-Blechman to perform the = animal=20 euthanasia.

The expert testimony = of Dr. Nigel=20 Gumley was crucial in appreciating the evidence of the Pet Heaven = clients.=20 First, Dr. Gumley noted that there was no pre-existing VCPR[27]=20 between the attending veterinarian and the Pet Heaven clients and their = pets.=20 Second, Dr. Gumley noted that there was no inquiry about the medical = condition=20 of the animal and, consequently, no discussion of treatment options. The = VCPR=20 relationship is critical to establish and maintain in order to = facilitate candid=20 discussion of the animal=E2=80=99s medical situation and the treatment = options=20 available. Dr. Gumley=E2=80=99s expert testimony was critical in = assisting me to=20 determine whether Pet Heaven and the Blechmans had, in fact, trespassed = into the=20 practice of veterinary medicine.

When the prosecution = was=20 permitted to re-open its case, it introduced the Certificate of the = Registrar of=20 the College of Veterinarians of Ontario. This certificate summarized the = findings made against Dr. Brodetsky in his disciplinary hearing for = professional=20 misconduct which arose from his performance of in-home euthanasia for = Pet Heaven=20 clients. In the course of pleading guilty to professional = misconduct, Dr.=20 Brodetsky made certain admissions which were directly probative for my = factual=20 findings in these proceedings. The most damaging admission, from the = perspective=20 of the three defendants in this trial, was Brodetsky=E2=80=99s admission = that he had in=20 fact practised veterinary medicine through Pet Heaven. In other words,=20 Brodetsky=E2=80=99s admissions confirmed the prosecution theory of the = case.

While Dr. Brodetsky = was not a=20 defendant in these proceedings, it is necessary for me to explain his = role in=20 the circumstances of this case. It is necessary to understand his role = so as to=20 understand how the defendants committed these offences. From the outset = of this=20 trial, the prosecution view was that Brodetsky was, at all material = times,=20 working for, and at the direction of, Pet Heaven. This view was = confirmed by the=20 admissions he made in his own disciplinary hearing. Dr. = Brodetsky=E2=80=99s key=20 admission that Pet Heaven and the Blechmans had steered clients toward = him =20 means that, for practical purposes, Pet Heaven and the Blechmans were, = as a=20 matter of fact, practising veterinary medicine, or holding themselves = out as=20 doing so, without a licence. It must be understood that Pet Heaven would = not=20 have qualified for a certificate of authorization which would = have=20 permitted the corporate practice of veterinary medicine since the = corporation=20 was not owned and managed by veterinarians.

Drawing The=20 Appropriate Factual Conclusions

Drawing appropriate = factual=20 conclusions from the evidence presented was facilitated by the quality = of=20 evidence adduced. In due course, I determined that all of the = prosecution=20 witnesses were very credible. Further, I determined that there was no = reason to=20 doubt or disbelieve any of the prosecution witnesses on any material = point.=20 Finally, the documentation presented by the prosecution corroborated the = witness=20 testimony and confirmed the prosecution=E2=80=99s theory of the = case.

Unfortunately for the = defence,=20 the credibility problems of Shelley Greenberg-Blechman and Eric Blechman = seriously damaged the defence case. The low credibility of the Blechmans = contrasted sharply with the high credibility of the prosecution = witnesses[28].

Putting together all = of the=20 evidence adduced by the prosecution, which evidence I wholeheartedly = accept=20 without reservation, I conclude, that Pet Heaven and the Blechmans did = in fact=20 practise veterinary medicine.

As a matter of fact, = performance=20 of animal euthanasia by the Pet Heaven-provided veterinarian = amounted to a=20 crossing of a critical line and trespassing into the practice of = veterinary=20 medicine. In the alternative, the same evidence justifies a conclusion = that all=20 three defendants held themselves out as practising veterinary medicine. = As a=20 matter of fact, all of the complainants reasonably believed that Pet = Heaven and=20 the Blechmans were the parties who were providing the in-home euthanasia = service. Further, anyone who had viewed the advertising flyer or the = website=20 would reasonably believe, as a matter of fact, that the defendants were = holding=20 themselves out as providers of a veterinary service and therefore = practitioners=20 of veterinary medicine.

FINDINGS=20 RESPECTING LIABILITY

Determination of = liability=20 involves comparing one=E2=80=99s factual findings against the = requirements, standards,=20 and prohibitions established by the law. This case involves alleged = breaches of=20 Ontario=E2=80=99s Veterinarians Act. In due course, I must = compare my factual=20 findings against the various provisions of that statute to determine = whether=20 there were breaches of the law by any of these defendants. Obviously, = the=20 wording of the statute will be crucial in determining liability.

Unfortunately, the=20 Veterinarians Act fails to provide a helpful definition for the = =E2=80=9Cpractice=20 of veterinary medicine=E2=80=9D. [Please consult the Appendix]. It does = not provide a=20 meaningful definition which would readily enable a reader to know which = actions=20 are covered and which are not.

To assist me with = interpretation=20 of this key statutory term, the prosecution adduced expert evidence from = Dr.=20 Nigel Gumley. To paraphrase the expert evidence of Dr. Gumley = =E2=80=9Cto practise=20 veterinary medicine=E2=80=9D must mean or involve, at the very least, = the evaluation and=20 treatment of the medical needs of animals.

Whatever the precise = meaning and=20 parameters of this key statutory term, given the expert testimony of Dr. = Gumley,=20 I do know that the practise of veterinary medicine includes the = performance of=20 euthanasia to relieve the suffering of an animal. Further, based upon my = previous factual findings, I determined that these three defendants had, = as a=20 matter of fact, engaged in the practice of veterinary medicine and held=20 themselves out as doing so.

It is imperative to = remember that=20 section 11(5) of the statute declares that =E2=80=9C=E2=80=A6 proof of = the performance of one=20 act in the practice of veterinary medicine on one occasion is sufficient = to=20 establish engaging in the practice of veterinary medicine=E2=80=9D. In = this case, there=20 was proof of repeated acts of the performance of animal euthanasia.

Ultimately, I found = each=20 defendant guilty of both practising and holding = itself/herself/himself=20 out as practising veterinary medicine without a licence. The acts of = the=20 corporate defendant went beyond merely running a =E2=80=9Creferral = service=E2=80=9D for persons=20 seeking in-home euthanasisa for their dying or suffering pets. Based = upon the=20 expert evidence of Dr. Gumley, I concluded that Pet Heaven had = trespassed into=20 the practice of veterinary medicine. Consequently, Shelley = Greenberg-Blechman=20 and Eric Blechman were liable, in their respective capacities as = director and=20 employee, unless they could establish either due diligence or=20 reasonable mistake of fact.

In her capacity as = director and=20 employee of the corporation, Shelley Greenberg-Blechman carried on this = business=20 using the trade name Pet Heaven. It was her corporate entity. She was = the sole=20 owner and the sole director of the corporate entity. She was the moving = force=20 and directing mind behind the Pet Heaven business. Further, she was the = person=20 who usually answered the phone, dealt with pet owners concerning = questions and=20 problems, and arranged for a veterinarian to perform in-home animal = euthanasia.=20 In my judgment, this is sufficient to ground her liability either as a = director=20 under section 40(5)(a) or, alternatively, as an agent/employee of the=20 corporation under section 40(5)(b). Several complainants mentioned their = contact=20 with her and their reporting of their dissatisfaction to her.

The liability of Eric = Blechman is=20 based upon his status as an employee of the corporation which carried on = this=20 business of in-home animal euthanasia. He was neither an owner nor = director of=20 the corporation. In his capacity as an employee, he attended the homes = of pet=20 owners who had requested in-home euthanasia for their pets. His = attendance was=20 primarily to deal with the paperwork and collect money from the Pet = Heaven=20 clients. However, he occasionally provided other services such as = removal of the=20 animal body after the euthanasia had been performed. Thus, these acts = were at=20 least partially responsible for the conduct of that part of the business = which=20 gave rise to these offences.

Throughout this = trial, none of=20 the three defendants raised a due diligence defence. At no time = was=20 evidence adduced that any of the three defendants had taken any = reasonable=20 measures to avoid either practising or holding itself/herself/himself = out as=20 practising veterinary medicine. Nor was there any evidence of any = inquiries made=20 by any of the defendants to any party about whether their business = trespassed=20 into the practice of veterinary medicine. Since the defendants were = charged with=20 strict liability offences, the prosecution is entitled to = findings of=20 guilt upon proof that the defendants had committed the prohibited = conduct=20 unless the defendants could prove due diligence or reasonable = mistake=20 of fact. Since these defences were not advanced, liability followed=20 immediately from proof of the prohibited/illegal conduct.

My liability findings = are=20 summarized in the chart immediately below.

PRACTISING

HOLDING=20 OUT

PET HEAVEN (CORP)

Guilty

Sections 11(1) = &=20 40(1)

Guilty

Sections 11(1) = &=20 40(1)

SHELLEY GREENBERG BLECHMAN (DIRECTOR

Guilty

Sections 11(1) = &=20 40(5)(A)

Guilty

Sections 11(1) = &=20 40(5)(A)

ERIC BLECHMAN (EMPLOYEE)

Guilty

Sections 11(1) = &=20 40(5)(B)

Guilty

Sections 11(1) = &=20 40(5)(B)

Note that I have = determined the=20 liability of Shelley Greenberg-Blechman and Eric Blechman under sections = 40(5)(a) and 40(5)(b) of the statute. They have been found liable in = their=20 respective capacities as director and employee. Their liability is = dependent=20 upon my prior finding that the corporation is directly liable under = section 11.=20

In summary, I was = satisfied that=20 the acts attributed to the various defendants amounted to, and = constituted,=20 commission of the acts prohibited by section 11(1) of the statute, i.e.=20 practising veterinary medicine or holding oneself out as practising = veterinary=20 medicine.

CONSIDERATION=20 & IMPOSITION OF PENALTY

A sentencing hearing = was held on=20 April 30, 2010. On that date, I solicited and received submissions from = both the=20 prosecution and the defence respecting the factors and circumstances = which I=20 should consider in determining the appropriate penalty[29]=20 to be imposed.

Before discussion of = factors=20 likely to impact sentence, it is useful to remind oneself of the penalty = provisions of the Veterinarians Act. Section 40(4) indicates that = $25,000=20 is the maximum fine for a first conviction for a corporation. Counsel = for the=20 prosecution confirmed that this was the first conviction for Pet Heaven. = Section=20 40(6) indicates that the maximum fine, for a first conviction, for = directors,=20 employees, and agents of the corporation, is $15,000 per person per = offence.

Prosecution=20 Sentencing Submissions

For the prosecution, = Mr. Leblanc=20 cited several aggravating factors which he asked me to consider = in=20 determining the appropriate penalty. First, he reminded me that the Pet = Heaven=20 business was a commercial activity carried on for profit. Second, = despite the=20 best intentions[30]=20 of the Blechmans in operating the business, the evidence of the = complainants had=20 established that vulnerable pet owners had been victimized by Dr. = Brodetsky=E2=80=99s=20 substandard and unprofessional performance of the euthanasia procedure[31].=20 Although the Blechmans had not intended such outcomes for their client=20 pet-owners, they were ultimately responsible for insuring that the = euthanasia=20 procedure was properly performed by a competent professional. Third, Mr. = Leblanc=20 cited the letter[32],=20 from the College of Veterinarians of Ontario to the Blechmans, which had = placed=20 the Blechmans on notice that the College believed that they had = trespassed into=20 the practice of veterinary medicine.

When asked which = sentencing=20 principles should guide my consideration of penalty, counsel for the = prosecution=20 suggested that deterrence should be my main concern. More = precisely, I=20 should be motivated by the sentencing principle of specific = deterrence.=20 Mr. Leblanc was particularly concerned that the Pet Heaven business was = an=20 ongoing business and that the Blechmans might be tempted to simply pay a = fine=20 and continue to breach the Veterinarians Act, if the fine were = not=20 sufficiently high to discourage repetition of the illegal conduct. Mr. = Leblanc=20 cautioned me not to impose a penalty which might be interpreted as = nothing more=20 than a licence fee.

In making penalty = recommendations=20 for the three defendants, counsel for the prosecution suggested the = following=20 fines: Pet Heaven $20,000; Shelley Greenberg-Blechman $10,000-$12,000; = Eric=20 Blechman $10,000-$12,000.

Quite frankly, I was = surprised=20 that the prosecution was seeking the same penalty for Shelley = Greenberg-Blechman=20 and Eric Blechman. In her various capacities as sole shareholder of the=20 corporation, sole director, and managing employee, I would have thought = that she=20 was much more involved in the Pet Heaven business than her husband whose = status=20 was nothing more than that of an employee. However, the = prosecution=E2=80=99s position=20 was that this was, for all practical purposes, a family business and = that the=20 sentence should properly reflect that fact. Ultimately, my sentence will = reflect=20 my disagreement with the prosecution that Shelley and Eric Blechman = should be=20 fined equally.

In addition to the = fines=20 specified, the prosecution also sought to have me impose probation on = all three=20 defendants, including the corporation. For various practical reasons, I=20 expressed my reservations about doing so. First, I had doubts about my=20 jurisdiction and the desirability of placing a corporate defendant on = probation.=20 Second, even with respect to the personal defendants, I wondered whether = I could=20 impose probation without requiring the Blechmans to actually report to a = probation officer. If a reporting condition must be part of any = probation order,=20 such a reporting condition would likely place the probation officer in a = quandary about how to supervise the defendants in this case.

Defence Sentencing=20 Submissions

Counsel for the = defence, Mr.=20 Pasquale, submitted the following mitigating factors for my=20 consideration. First, the Blechmans were motivated by the best of = intentions in=20 seeking to assist suffering or dying animals and their owners. Second, = he stated=20 that the Blechmans were simply unfamiliar with the law and therefore = victims of=20 their own legal ignorance. I will comment upon each of these submissions = below.

Although the = Blechmans were=20 motivated by an intention to relieve animal and pet-owner suffering, I = do agree=20 with the prosecution that this case is one of mixed motivation. Through = conduct=20 of the Pet Heaven business, the Blechmans were also seeking to make a = profit.=20 The services provided by the company were not free to the clients. = According to=20 the evidence, each animal euthanasia procedure yielded a gross profit of = $100 to=20 the company. If the Blechmans had been motivated solely or primarily by = their=20 concern for suffering animals and their owners, they could have simply = provided=20 these services without charge. Thus, it is difficult to give significant = weight=20 to this sentencing submission of defence counsel.

Defence = counsel=E2=80=99s submission that=20 the Blechmans were victims of their own legal ignorance must now be = addressed.=20 Ignorance of the law is never a defence to a charge[33].=20 At most it is a mitigating factor to be addressed when the appropriate = penalty=20 is being considered. However, I would ask the following questions: Is=20 ignorance of the law a mitigating factor in this particular case? = Were=20 the Blechmans truly ignorant of the law? Did they take reasonable = measures to=20 acquaint themselves with the law as applicable to the Pet Heaven = business?

In my view, = ignorance of the=20 law is not a mitigating factor in this particular case. As soon as = the=20 Blechmans received the letter from the College of Veterinarians, they = were put=20 on notice that the College considered part of their operation illegal. = However,=20 in response, the Blechmans simply did nothing. They did not seek further = clarification from the College and they did not seek their own legal = opinion.=20 Had they sought further clarification, perhaps they could have tailored = their=20 business so as not to breach the Veterinarians Act. Had they = sought and=20 received a legal opinion which contradicted the College=E2=80=99s = position, they could=20 have legitimately claimed that they should be treated leniently and not=20 penalized for their lawyer=E2=80=99s mistaken interpretation of the law. = Instead of=20 taking either course, they simply continued to conduct business as they = had been=20 doing before receipt of the letter. In so doing, they must bear the full = weight=20 of their misunderstanding of the law.

Imposition of=20 Sentence

In imposing sentence, = my primary=20 consideration has been specific deterrence of these defendants = from=20 committing similar or related offences in future. I have also given = great weight=20 to protection of the public, particularly those members of the = public who=20 are pet-owners seeking proper and professional care for their suffering = or dying=20 animals. Finally, I have also considered how the Blechmans defiantly = insisted,=20 both before charges were laid and in their testimony, that they had done = nothing=20 wrong.

In my judgment, after = due=20 consideration of all the circumstances, the following penalties are=20 appropriate:

Defendant

Fine

Probation

Pet = Heaven

$15,000.00

2 Years, = Statutory=20 Terms

Shelley=20 Greenberg-Blechman

$10,000.00

2 Years, = Statutory=20 Terms

Eric = Blechman

$5,000.00

2 Years, = Statutory=20 Terms

My jurisdiction for = imposing the=20 probation orders is section 72 of Ontario=E2=80=99s Provincial = Offences Act. My=20 interpretation of this provision is that I do indeed have the = jurisdiction to=20 impose probation orders on all three of the defendants. Indeed, that is = what I=20 intend to do. My reading of the provision is that I need not = order=20 reporting of any of the defendants to a probation officer.

According to section = 75 of the=20 Provincial Offences Act, the penalties for breach of a probation = order=20 are a maximum fine of $1000 and/or imprisonment for a maximum of thirty=20 days.

Each of the = defendants is placed=20 on probation for 2 years. The probation period commences on the date of = these=20 written reasons for judgment. Each probation order shall contain only = the=20 statutory probation terms specified in section 72(2). No other = terms or=20 conditions shall be added to the statutory terms. There is no reporting=20 condition for any of the three defendants.

Final=20 Comment

As a final note, I = wish to thank=20 counsel for their presentation, submissions, assistance and patience = throughout=20 the trial and during the preparation of these reasons for judgment. = Although=20 this case was a challenging one, with many complicated issues, it was = indeed an=20 interesting one. The professionalism of counsel is very much = appreciated.

Kevin V. Madigan = B.A., J.D.

Justice of the = Peace

Ontario Court of = Justice

APPENDIX

Relevant Excerpts=20 From The Veterinarians Act of Ontario

=E2=80=9Cpractice of = veterinary medicine=E2=80=9D=20 includes the practice of dentistry, obstetrics including ova and embryo=20 transfer, and surgery, in relation to an animal other than a human = being;

***

5.1 Subject to the by-laws, a member or = two or=20 more members practising veterinary medicine as individuals or as a = partnership=20 may establish a professional corporation for the purpose of practising=20 veterinary medicine, and the provisions of the Business Corporations = Act=20 that apply to professional corporations within the meaning of that Act = apply to=20 such a corporation. 2000, c. 42, Sched., s. 46; 2001, = c. 8,=20 s. 247; 2006, c. 19, Sched. A, s. 17 (5).

Registry

5.2 (1) The Registrar shall = establish=20 and maintain a register of professional corporations that have been = issued=20 certificates of authorization. 2000, c. 42, Sched., s. 46.

***

11. (1) No person shall = engage in the=20 practice of veterinary medicine or hold himself, herself or itself out = as=20 engaging in the practice of veterinary medicine unless the person is the = holder=20 of a licence. R.S.O. 1990, c. V.3, s. 11 (1).

Proof of practice

(5) For the purposes of this section, proof = of the=20 performance of one act in the practice of veterinary medicine on one = occasion is=20 sufficient to establish engaging in the practice of veterinary medicine. = R.S.O.=20 1990, c. V.3, s. 11 (5).

***

40. (1) Every person who contravenes = section 11=20 is guilty of an offence and on conviction is liable for the first = offence to a=20 fine of not more than $15,000 and for each subsequent offence to a fine = of not=20 more than $30,000.

Idem, use of titles

(2) = Every person=20 who is not a holder of a licence and who,

(a) uses the title =E2=80=9Cveterinarian=E2=80=9D, = =E2=80=9Cv=C3=A9t=C3=A9rinaire=E2=80=9D, or=20 =E2=80=9Cveterinary surgeon=E2=80=9D, =E2=80=9Cchirurgien = v=C3=A9t=C3=A9rinaire=E2=80=9D or an abbreviation or variation=20 thereof as an occupational or business designation; or

(b) uses a term, title or description that will lead = to the=20 belief that the person may engage in the practice of veterinary = medicine,

is guilty of an offence and on conviction is = liable for=20 the first offence to a fine of not more than $5,000 and for each = subsequent=20 offence to a fine of not more than $15,000.

Idem, publication

(3) Every person=20 who contravenes subsection 29 (1) or (3) is guilty of an offence and on=20 conviction is liable to a fine of not more than $10,000 and for each = subsequent=20 offence to a fine of not more than $20,000.

Corporation

(4) Where a=20 corporation is convicted of an offence under subsection (1), (2) or (3), = the=20 maximum fine that may be imposed is $25,000 on a first conviction and = $50,000 on=20 each subsequent conviction and not as provided in subsection (1), (2) or = (3).

Offence, director, officer, etc., of = corporation

(5) Where a=20 corporation is convicted of an offence under subsection (1), (2) or = (3),

(a) each director of the corporation; and

(b) each officer, employee or agent of the = corporation who was=20 in whole or in part responsible for the conduct of that part of the = business of=20 the corporation that gave rise to the offence,

is guilty of an offence unless he or she = proves, on the=20 balance of probabilities, that he or she took all reasonable care to = prevent the=20 commission of the offence.

Idem, penalty

(6) Every person=20 convicted of an offence under subsection (5) is liable on conviction to = a fine=20 of not more than $15,000 on a first conviction and not more than $30,000 = on each=20 subsequent conviction.

Limitation

(7) Proceedings=20 shall not be commenced in respect of an offence under subsection (1), = (2), (3)=20 or (5) after two years after the date on which the offence was, or is = alleged to=20 have been, committed. R.S.O. 1990, c. V.3, s. 40.

***

44. Any statement containing = information from=20 the records required to be kept by the Registrar under this Act and = purporting=20 to be certified by the Registrar under the seal of the College is = admissible in=20 evidence in all courts and tribunals as proof, in the absence of = evidence to the=20 contrary, of the facts stated therein without proof of the appointment = or=20 signature of the Registrar and without proof of the seal. R.S.O. 1990,=20 c. V.3, s. 44.

[1]=20 The leading case on determining whether an information is = duplicitous is=20 the the Supreme Court of Canada decision in R. v. Sault Ste. = Marie [1978] S.C.J. = No. 59=20 (S.C.C.). In that decision, the Supreme Court articulated the test for=20 duplicity: whether the defendant knows the case he must meet or = whether=20 he is prejudiced by ambiguity in the wording of the charge.

For authorities = which have=20 determined that holding out is an alternate mode of committing = the same=20 offence, pleas consult the following caselaw: R. v. D.P. [1995] A.J. = No. 559 (C.A.)=20 and R. v. Smith [1993] N.W.T.J. No 82 (S.C.).

[2]=20 Strict liability offences are public welfare offences = which=20 require the prosecution to prove, beyond a reasonable doubt, only the = conduct=20 prohibited by the statute. Where the prosecution succeeds in doing so,=20 conviction for the offence must follow unless the defendant can prove, = on a=20 balance of probabilities, that he exercised due diligence or that he = reasonably=20 believed in a state of affairs which, if true, would exonerate him. = Due=20 diligence is established by the defendant demonstrating that he took = all=20 reasonable measures to prevent commission of the conduct prohibited by = the=20 statute.

[3]=20 When asked specifically about liability = under the=20 Provincial Offences Act =E2=80=9CParties To An Offence=E2=80=9D = provisions, counsel for=20 the prosecution conceded that the main thrust of his case had been based = upon=20 allegations of liability under the Veterinarians Act and that the = Provincial Offences Act provisions had not been explicitly and=20 specifically argued in submissions.

[4]=20 Dr. Brodetsky had been charged with professional misconduct for, = among=20 other things, breaching section 5.1 of the Veterinarians Act. = This=20 particular section prohibits veterinarians from working for a = corporation which=20 practices veterinary medicine but which is not owned by = veterinarians.

[5]=20 See section 13 of the Canadian Charter of Rights & = Freedoms.

[6]=20 Under our common law adversarial system, a party calling a witness is = usually=20 not permitted to cross-examine its own witness. However, at common law, = a party=20 could cross-examine its own witness at large if that party could = persuade the=20 court to declare that witness =E2=80=9Chostile=E2=80=9D. See R. v. = McAllister [2008] N.S.J. = No. 479=20 (C.A.) and R. v. Haughton (1983) 38 O.R. (2d) 536 (County = Court).

[7]=20 The technicality which prevented me from declaring Dr. Brodetsky an = =E2=80=9Cadverse=20 witness=E2=80=9D under Ontario=E2=80=99s Evidence Act was = the following: Although=20 he had given a previous statement to Investigator Martin Fischer, Dr. = Brodetsky=20 had not had the benefit of a Russian interpreter. Consequently, I chose = to=20 disregard this previous statement. The lack of a previous statement = prevented=20 recourse to section 23 of the Ontario Evidence Act.

[8]=20 Comparatively speaking, Dr. Brodetsky=E2=80=99s later testimony was more = responsive and=20 comprehensible, and therefore helpful, than his earlier testimony. = However, even=20 his later testimony left much to be desired in terms of clarity, = precision and=20 candour. Ultimately, I was satisfied that he did adopt the crucial = admissions he=20 had made in his own disciplinary hearings before the College of = Veterinarians on=20 August 25, 2009 [See section entitled =E2=80=9CRe-Opening of Prosecution = Case=E2=80=9D later in=20 this judgment]

[9]=20 There are two exceptions to the rule against witnesses giving opinion = evidence:=20

First, where a = witness is=20 properly qualified, by the court, as an expert having special = qualifications or=20 expertise in a particular and recognized field, he may give expert = evidence=20 restricted to that particular field of knowledge, expertise or = competence.

Second, any = non-expert=20 witness may provide an opinion respecting matters considered to be = within=20 everyone=E2=80=99s general knowledge or experience. For example, = non-expert witnesses=20 are permitted to relate common, everyday opinions and conclusions = [requiring no=20 particular competence or expertise] such as that someone seemed to be=20 intoxicated, angry or upset etc.

[10]=20 To support his position that expert testimony is routinely permitted in = cases of=20 unauthorized practice, Mr. Leblanc cited the following caselaw: King = Optical=20 Group Inc. v. College of Opticians of Ontario [2001] O.J. No. 4779 (C.A.) at = paras.6 &=20 28; College of Dental Hygienists of Ontario v. Tota [2008] O.J. = No. 694=20 (S.C.J.) at para 3; and Assn. of Professional Engineers, Geologists = &=20 Geophysicists of the NWT v. Treminco Resources Ltd. [1995] N.W.T.J. No. 60 (S.C.) at page = 3, para=20 6.

Further, the = Ontario Court=20 of Appeal has specifically endorsed the reception of expert testimony in = cases=20 where unauthorized practice is alleged. See Regina ex rel. = Doughty v.=20 Manuel (1982) 38=20 O.R. (2d) 321 at page 5.

[11]=20 The prosecution had closed its case in February 2009 at which time the = trial was=20 adjourned to October 1, 2009 for the hearing of the defence=E2=80=99s = case.

[12]=20 Section 44 of the Veterinarians Act is reproduced in Appendix = =E2=80=9CA=E2=80=9D of=20 these reasons for judgment.

[13]=20 See R. v. Linan [1998] O. J. No.1267 = (C.A.).

[14]=20 See the comments of Justice Casey Hill in Re Criminal Code [1997] O.J. 4393 (Ont. Sup. Court) at = paragraph=20 9 where he states that: =E2=80=9CThe Application affidavit/information = must be=20 reasonably comprehensible=E2=80=A6.The court should not find itself in = the position of=20 endlessly re-reading the application document in order to discover = whether the=20 statutory conditions are satisfied.=E2=80=9D

[15]=20 See the comments of Justice Casey Hill in Re: Criminal Code [1997[ O.J. No.4393 = (Ont.=20 S.C.):

=E2=80=9CAny = factual assertion by=20 the applicant within the four corners of the affidavit must be sourced = to some=20 investigative resource. Otherwise, the applicant breaches=E2=80=A6.the = rule against=20 narrative. It is insufficient for an applicant to simply state = conclusions,=20 opinions or facts. The credibility and reliability of the assertions are = inextricably linked to the investigative resources = themselves.=E2=80=9D

Please also = consult R.=20 v. Church of Scientology (No. 6) 1987 CanLII 122 (ON C.A.), (1987) 31 = C.C.C.=20 (3d) 449 (Ont. C.A.) and R. v. Hosie 1996 CanLII 450 (ON C.A.), (1996) 107 = C.C.C.(3d) 385 (Ont. C.A.).

[16]=20 For an authoritative pronouncement of the four corners rule, = please=20 consult R. v. Gordon 1999 CanLII 18640 (MB C.A.), (1999) = 139 C.C.C.=20 (3d) 239 (Man. C.A.) where the court made the following comments:

=E2=80=9C=E2=80=A6When making an=20 application for a search warrant, police officers should present to the=20 authorizing justice a completed package, with the affidavit executed. = The=20 package should be left with the justice to review and to render a = decision. The=20 contents of the package should not be discussed, no further information = should=20 be given to the justice, and there should be no interaction between the = affiant=20 and the authorizing justice. If the affidavit is properly drawn and all = the=20 information is placed before the authorizing justice, there is no need = for any=20 conversation or discussion between the police and the judicial = officer.=E2=80=9D

See also = R. v.=20 James [2001] O.J.=20 No.6055 (Ontario Court of Justice).

[17]=20 In CHUM Ltd. v. Wicks (1987) 64 Nfld & P.E.I.R. 26 = (Nfld. S.C.),=20 Justice Adams commented that oral submissions may sometimes supplement = the=20 written search warrant application but that such comments should be made = on the=20 record and under oath.

In this case, = the=20 additional verbal interaction between the search warrant applicant and = the=20 authorizing judicial officer was on the record but the = applicant=E2=80=99s additional=20 oral comments were not under oath.

[18]=20 The following caselaw is authority for the proposition that a justice of = the=20 peace does not have the authority to quash a search warrant but does = have the=20 authority to fashion remedies under section 24 of the Charter:

R. v. Fritz = Marketing=20 Inc. [2006] O.J.=20 No. 3486 (Ont. C. J.); R. v. Boissonneault [1993] O.J. No. 285 (Ont. Gen. Div.); = Long=20 Lake Forest Products Inc. v. W.S.I.B. [2006] O.J. No. 4132 (S.C.J.); and R. = v. Nguyen=20 [2004] O.J. = No. 3370=20 (S.C.J.)

See also = section 95(3)=20 & 109 of Ontario=E2=80=99s Courts of Justice Act.

[19]=20 See Browne v. Dunn (1893) 6 R. 67 (H.L.).

[20]Courts=20 have held that business records are non-conscriptive because: = they do not=20 emanate directly from the defendant; they do not derive from the = compelled=20 co-operation of the defendant; and because the original documents exist=20 independent of any Charter violation.

See R. v. Zuk [2004] O.J. No. 4379 (Ont. C.J.) at = paras=20 24-25.

[21]=20 In B.C. Securities Commission v. Branch [1995] S.C.J. No. 32 (S.C.C.), the = Supreme=20 Court of Canada addressed the distinction between commercial and = personal=20 documentation and records:

=E2=80=9CDocuments provided in the=20 course of a business which is regulated have a lesser privacy right = attaching to=20 them than do documents that are, strictly speaking, = personal=E2=80=9D

These comments = tend to=20 suggest that, given that the target of Investigator Fischer=E2=80=99s = search was=20 business documentation respecting activity which is regulated, the = Blechmans may=20 have had a diminished =E2=80=9Cexpectation of privacy=E2=80=9D, even = though the Blechman=20 residence was searched.

[22]=20 See R. v. DiGiuseppe [2008] O.J. No. 1106 (Ont.C.J.) at = paras=20 58-59.

[23]=20 Recently, the Supreme Court of Canada revisited the test for the = exclusion of=20 evidence in R. v. Harrison [2009] S.C.J. No 34 (S.C.C.) at page = 7.

[24]=20 See the previous citation in footnote 21.

[25]=20 In response to the e-mail complaint of Ginny Smith regarding substandard = animal=20 euthanasia, it was Shelley Greenberg-Blechman who responded by e-mail = and who=20 discounted the price for the services rendered.

[26]=20 Mararet Routh had used Pet Heaven twice before to euthanize animals. = However,=20 she could not even recall the name or description of the veterinarians = who had=20 previously performed euthanasia on her animals. Although Routh had used = Pet=20 Heaven before, neither she nor her animal had any pre-existing = relationship with=20 the attending vet [Dr. Grigory Brodetsky].

[27]=20 The VCPR is an acronym for the veterinarian-client-patient relationship. = This=20 three way relationship is the ideal relationship for frank discussion of = the=20 animal=E2=80=99s medical needs and the treatment options available. = Absence of a VCPR=20 can result in poor-quality decision-making respecting the healthcare of = the=20 animal, as actually occurred in this case.

[28]=20 Despite the credibility findings, I have considered the evidence = according to=20 the protocol established by the Supreme Court of Canada in R. v. = W.D. 1991 CanLII 93 (S.C.C.), [1991] 1 = S.C.R. 742 (=20 Supreme Court of Canada). In other words, I have not determined that the = defendants must be guilty simply because the key defence = witnesses were=20 not credible. Although the defence evidence was not credible, I have = proceeded=20 to weigh the prosecution evidence to determine whether that evidence = proves the=20 prosecution case beyond a reasonable doubt.

[29]An=20 =E2=80=9Cappropriate penalty=E2=80=9D is one which takes into = consideration the circumstances of=20 the defendant and the circumstances of the offence. See R. v. = Sears=20 (1978)39 C.C.C.(2d) 199 (Ontario Court of Appeal) and R. v.=20 M.(C.A.) 1996 CanLII 230 (S.C.C.), (1996) 105 = C.C.C.=20 (3d) 327 (Supreme Court of Canada).

[30]=20 Counsel for the prosecution, Mr. Leblanc, conceded that the Blechmans = had the=20 best of intentions in establishing and operating the Pet Heaven = business.=20 However, he indicated that, at best, this was a case of mixed = motivation, since=20 the business did seek to earn a profit.

[31]=20 The Pet Heaven clients, called by the prosecution, attested that their = suffering=20 or dying pets had been exposed to greater suffering due to the = substandard and=20 unprofessional performance of the euthanasia procedure by the attending=20 veterinarian, Dr. Brodetsky.

[32]=20 This letter had been drafted by Investigator Fischer and signed by the = then head=20 of the College, Dr. Martin. This letter was dated January 13, 2005 and = had been=20 forwarded to the Blechmans long before charges were laid.

[33]=20 Ignorance of the law is not a defence to a charge. This is the = position=20 of both the common law and section 81 of Ontario=E2=80=99s Provincial = Offences=20 Act.