Activist acquittal could set precedent

Animal activist Malcolm Klimowicz celebrated his criminal charge acquittal with an almost-18-minute video on Facebook.

“The fur industry has attempted to punish me for publicizing the rampant animal cruelty I witnessed inside their facilities but now their baseless accusations and plans to make an example of me has backfired,” said Klimowicz.

Why it matters: The acquittal of an animal activist after he illegally entered and posted video recorded inside an Ontario mink farm, could provide legal precedent on future cases like it. However, it would not apply to provincial statutes, like Ontario’s anti-trespassing and food safety act.

“The judge’s decision has created a powerful legal precedent, which will protect whistleblowers and animal rights investigators across the country,” he said. “This is not mischief but a civil duty.”

But is he correct?

Don Buckingham, lawyer and consultant in Agriculture, Food and Regulation in Ottawa, is not sure.

There are two different “highways” in law, said Buckingham. One is the Criminal Code of Canada, which has its own vocabulary, process and burden of proof. The other covers provincial administrative contraventions or offences and is governed by a different set of rules.

Klimowicz’s precedent could apply to anyone charged under the Criminal Code for breaking and entering with intent to do mischief, said Buckingham. However, it would have no bearing on Ontario legislation called The Security from Trespass And Protecting Food Safety Act of 2020, known as Bill 156.

“One is a break and enter with intent to create mischief,” he said. “The other one is simply a violation of trespass without the permission of the owner, which is the offence under this new piece of Ontario legislation.”

All one needs to show or prove under the new provincial code act violation is whether the person entered the farm without consent, he said.

Under the Criminal Code, one must prove beyond a reasonable doubt that break and enter with intent to cause mischief occurred.

“You’ve got to show break and enter, you’ve got to show intent, and you’ve got to show the mischief,” Buckingham said. “It’s a much different deal because we don’t take criminal offences lightly.”

Klimowicz faced a criminal charge of break and enter with the intent to commit mischief in connection to an Aug. 1, 2017, incident involving a mink facility owned by Walt Freeman, in Frontenac Township. That was before Bill 156 was passed.

Klimowicz conceded he entered the third-generation mink farmer’s facility in the early hours of Aug. 1, 2017, to videotape the animals and the operation without permission and acknowledged he was trespassing.

However, he maintained there was no intention to commit damage, remove or harm any of the animals. He also alleged he took biosecurity precautions to limit potential harm to the animals.

“The evidence at this trial was that no harm befell the mink as a result of Mr. Klimowicz entering the barns,” stated Julianne Parfett, Ontario Superior Court judge, in her April 7 ruling. “He took measures to ensure there would be no breach of biosecurity, and there was none. In my view, a harm that might have occurred but did not, cannot constitute mischief.”

Holly Chiavetti, the Crown prosecutor, argued the release of Kilmowicz’s video prompted significant news coverage, which led to Freeman receiving a barrage of disturbing emails branding him as an animal killer, shaming him and calling on him to close his operation. The onslaught prompted Freeman to install video surveillance and hire guards on a seasonal basis at a cost.

The Crown further argued that publishing Freeman’s personal information online without permission was indeed mischief.

Kilmowicz’s defence team, Gary Grill and Alexandra Pester, successfully argued Freeman’s feelings about his property being entered, well after the fact, did not constitute interference with the lawful use of his property. Nor did the sharing of Freeman’s personal information, which Judge Parfett pointed out was already publicly available.

Buckingham said Freeman could pursue a private law action of trespass against Klimowicz, but it is generally time-consuming and cost-prohibitive. Issues such as these are what, in part, prompted the province to initiate the Security from Trespass And Protecting Food Safety Act to cover the gap in protection.

“If he’d have been charged under this new act under the provincial legislation, it might have gone a different way,” said Buckingham. “There was no doubt that he was on the property and had no permission, so he was trespassing.”

The Superior Court ruling would have no impact on charges laid under the provincial SFTAPFS Act, 2020 because the prosecution would only need to prove it was more likely than not the incident occurred.

Klimowicz said the three-year legal battle was a punitive attempt to punish him for showing the public what he alleged was criminal animal neglect on the five farms he recorded video in during the summer of 2017. In October 2019, Oshawa prosecutors withdrew the criminal break and enter charge for the Durham incident. Regarding the Springwater Township incident, a Collingwood judge downgraded Klimowicz’s break and enter charge to trespassing in February 2019.

He pled guilty, was fined and forced to remove the videos, and was ordered to stay away from the facility for one year.

No charges were laid in the remaining two incidents.

“I’m thrilled that this is all over,” said Klimowicz. “(It) sends a clear message to all persons who have animals in their care, that the justice system will not criminalize citizens for simply bearing witness to the horrors of factory farming.”