Lawyers for two companies charged with animal cruelty involved in chicken catching claim the video evidence that led to the charges may have been doctored or otherwise manipulated and they want to see the raw footage.
Elite Farm Services Ltd., the company’s owner Dwayne Paul Dueck, and Ontario-based Sofina Foods each face 38 counts under the Health of Animal Regulations.
The charges came to light after animal rights group Mercy For Animals (MFA) surreptitiously captured video of “egregious” abuse of birds at Fraser Valley farms in 2017, video filmed using a body camera by an MFA employee who got himself hired as a chicken catcher.
Crown and lawyers for the accused were in Chilliwack provincial court on June 6 for possible arraignment, but defence continued to refuse to enter a plea and choose a mode of trial.
“The reason I am not ready to arraign is I cannot tell my client what is the best mode of trial for him and his company,” said Martin Finch, lawyer for Dueck and Elite Farm Services.
“The reason we cannot tell our clients whether to have trial by jury or trial in provincial court or even Supreme, is there is a complete lack of certainty that we have received unblemished… video materials which have not been the subject of meddling or manipulation.”
The subject came up at the last court appearance, but at that time defence for Sofina, Morgan Camley, seemed more concerned about possible “inducements.” Camley brought this up again on June 6.
Sofina management tell Camley the abuse seen in the videos is nothing they have every heard of in their operations, therefore they suspect the individuals involved may have been induced to act.
“That person is playing those other people?” Cohen asked.
“Exactly,” Camley replied.
But since the last court appearance on May 13, defence hired a forensic investigator to examine the video evidence received through disclosure. Through that examination, the investigator concluded some editing or manipulation has taken place.
Crown counsel Jessica Lawn has said there is no missing video, but admits some editing was done. Some faces are blurred and at times the audio is turned off.
But defence said their expert also found some date and time stamps don’t match the metadata, and there is at least one instance of the body camera shutting off while both hands of the operator are visible, something that doesn’t seem to make sense.
For that reason, defence says they need the make, model and software version used by the California-based Mercy For Animals in this undercover operation, something Crown has not yet received from the activists.
Crown insists that is a matter to consider as evidence at the trial or preliminary inquiry stage and that there was no reason not to arraign on June 6.
“I continue to work with Mercy for Animals to get this information,” Lawn said. “I cannot see how it can continue to be a bar to election. It’s the Crown’s position that there should be no bar to arraignment at this stage.”
Judge Gary Cohen, however, agreed that the make, model and software used by MFA is indeed an important element for the defence in electing trial by jury or by judge.
”If the videos are good, this becomes a fact-driven case,” Judge Cohen said. “If the videos are not good, then this could be a technical case.”
The video, defence argues, is the key piece of evidence against Dueck, Elite and Sofina, although Crown insists it could run the trial without it.
“Jordan is a huge concern for us,” Lawn said, referring to the Supreme Court of Canada decision ordering that court cases be conducted within specific time limits. “The Crown could run this case absent the video evidence…. [The MFA investigator] also took extensive notes.”
In the end, Judge Cohen expressed concern over the delay in providing the technical video information since it could be important to defence.
Cohen put the case over to July 9 to give Crown time to come back with the information on the video equipment or at least a timeline as to when they could get it.