Animal activist Malcolm Klimowicz celebrated his criminal charge acquittal with a triumphant 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.
“The judge's decision has created a powerful legal precedent, which will protect whistleblowers and animal rights investigators across the country. This is not mischief but a civil duty.”
Why it matters: Livestock farmers are increasingly under attack from animal activist on-farm actions. The acquittal could embolden activist efforts despite the Security from Trespass and Protecting Food Safety Act, 2020.
Klimowicz faced a criminal charge of breaking and entering a fur-bearing animal pen in Frontenac Township with the intent to commit mischief in connection to an Aug. 1, 2017 incident.
The onus appeared to be on the prosecution to prove Klimowicz either had the intent to commit or committed an indictable offence, such as theft or vandalism, to convict him of break and enter.
Klimowicz conceded he entered third-generation Walt Freeman's mink facility in the early hours to videotape the animals and the operation without permission and acknowledged he was trespassing. However, he maintained he had no intention to commit damage, remove or harm any of the animals. He also alleges he took bio-security precautions to limit any potential harm to the animals.
“The evidence at this trial was that no harm befell the mink as a result of Mr. Klimowizc entering the barns,” stated Julianne Parfett, Ontario Supreme Court judge, in her April 7 ruling. “He took measures to ensure there would be no breach of bio-security, and there was none. In my view, a harm that might have occurred, but did not, cannot constitute mischief.”
The ruling shows Mr. Freeman conceded he was unaware his facility was compromised until Klimowizc released the video in January 2018.
Holly Chiavetti, the Crown prosecutor, argued the release of Kilmowicz's video prompted significant news coverage. This lead to Mr. 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 Mr. Freeman to install video surveillance and hire guards on a seasonal basis at a cost.
The Crown further argued by publishing Mr. Freeman’s personal information online without permission was indeed mischief.
Kilmowicz’s defence team, Gary Grill and Alexandra Pester, successfully argued Mr. Freemans’ 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 Mr. Freeman’s personal information, which Judge Parfett pointed out, was already publicly available.
Klimowizc said the three-year legal battle was an attempt to punitively punish him for showing the public what he alleges was criminal animal neglect on the five farms he allegedly broke and entered.
In October 2018 Oshawa prosecutors withdrew the criminal break and enter charge Klimowizc faced concerning one of five excursions onto mink farms during the summer of 2017 to videotape conditions.
In February 2019, the Collingwood judge downgraded Klimowizc’s Springwater Township break and enter charges to trespassing, to which he plead guilty. Klimowizc was fined, forced to remove the videos and ordered to stay away from the facility for one year. There were no charges laid in the remaining two incidents.
“I'm thrilled that this is all over. The only caveat here is there's a 30-day period where the Crown can appeal,” he said. “But my lawyers basically said that (the prosecution) made a fool of themselves, and they probably don't want to embarrass themselves again.”
In his opinion, Klimowizc said the Crown prosecutor failed to comprehend how the trial outcome meant setting a precedent for whistleblowers or investigator activists to use in the future.
“(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,” he said. “We won't stop until every fur farm in Canada is closed, and every Ag-Gag law is struck down, and we will keep winning.”