Delays continue in the case of alleged chicken abuse at Fraser Valley poultry farms as lawyers for the two companies accused continue to refuse to enter a plea or select a mode of trial.
Lawyers for chicken catching company Elite Farm Services Ltd., the company’s owner Dwayne Paul Dueck, and Ontario-based Sofina Foods were in a Chilliwack courtroom Monday where, for the third time, Judge Gary Cohen asked the two lawyers if they were ready to arraign.
“The short answer is ‘no’” Martin Finch said. He represents Elite and Dueck.
At previous appearances in May and in June, Finch and Sofina’s lawyer Morgan Camley said the disclosure from Crown regarding the undercover video evidence and the equipment used by a California-based animal rights group was incomplete.
The case dates back to 2017 when animal rights activist group Mercy for Animals released undercover video filmed at Fraser Valley farms that shows employees ripping live birds apart as well as stomping, kicking and throwing chickens.
WARNING: This video shows disturbing images of animal abuse that may upset some viewers
More than a year later Elite, Dueck and Sofina were each charged with 38 counts under the Health of Animal Regulations in connection with the alleged abuse of birds at local farms.
Employees were fired, the companies expressed dismay at the actions of those employees, and the BC Chicken Marketing Board expressed disgust at the practices seen in the video.
But it’s that video that remains the crux of the case, and in turn also the delays in getting the case to trial.
The problem leading defence to continue to delay arraignment is, essentially, that if the video evidence they have seen was manipulated, then defence likely wants the case heard in front of a jury. If an expert who examines the video evidence determines the videos have not been edited in ways beyond already admitted, then the case would be simpler and better suited in front of judge alone.
”We’ve had to go through these steps because this key evidence is not just a bit of evidence, it’s the evidence,” Camley told the court July 30.
And up until recently, defence did not know what video equipment was used by Mercy For Animals so their expert couldn’t form an opinion on the video evidence. Since a court appearance in June and the one on July 30, the expert, David McKay, president of Blackstone Forensics out of Vancouver, has learned what was used is custom-made undercover camera equipment made precisely for this purpose.
“These are highly secretive types of devices that are created for the purposes of secret videoing,” Finch told the court.
When told of the defence request for yet a third delay that has been before the courts for 223 days and refers to allegations more than two years old, Judge Cohen expressed immediately displeasure having already agreed to adjourn the proceedings twice to deal with the technical matters.
“If it’s going to be longer than one week I’m going to deem you elected judge and jury,” Cohen told the lawyers.
Sofina’s lawyer Camley responded by starting to express what she said was her concern with that possible decision.
“I understand your concern, but the concern from the Supreme Court of Canada is Jordan,” he said, referring to the 2016 R v Jordan decision that created a timeline within which all Canadian court cases have to be resolved. That is, 18 months in provincial court and 30 months in Supreme court.
Camley responded by saying without the video recorder analyzed by the expert, she doesn’t know how many experts will be needed for defence.
“These are the utmost in serious charges that have significant ramifications,” she said.
“Even murder charges have to be tried within 30 months,” Cohen said.
“In murder charges, my expectation is the disclosure would have been done in a more abundant way,” Camley responded.
Cohen’s response, something also suggested by Crown, was, in effect, that defence could enter a plea and elect a mode of trial that day, and worry about the details of evidence leading up to the trial or a preliminary inquiry.
Cohen told the lawyers he was considering invoking an order under section 536 of the criminal code. The section gives a judge authority to order election where an accused declines or refuses to arraign.
Finch responded that section 536 is meant to deal with an accused who actively refuses to plead or who is so indifferent or passive to have no position at all.
“That is not the situation here at all,” Finch said. “It’s not as though we are standing silent.”
After a brief recess, defence lawyers returned — with Crown counsel Jessica Lawn still opposed — to say they. would waive the delay period to avoid Jordan ramifications.
Cohen said since Jordan was his greatest concern, he was inclined to grant further time for defence experts to get hold of the video equipment used by the animal rights activists.
The case was put over to Aug. 28 at 2 p.m. in Surrey at which time the judge said defence would have to arraign or he would do it for them.