A Brentwood Bay man convicted of cruelty to an animal has been acquitted on a charge of breaching his probation.
On March 30, David Whiffin was fined $7,500 after being convicted of cruelty to an animal for failing to provide enough food to Jalupae, a 27-year-old horse, in June and July 2009.
At the time, Victoria provincial court Judge Sue Wishart said Whiffin was "prohibited from owning, having the custody or control of, or residing in the same premises as an animal or bird for five years."
In May, the Crown alleged that between April 2 and April 5, Whiffin was living in Saanichton on his large Mount Newton Cross Road farm with a miniature horse, dogs and geese while prohibited by the court order.
On Monday, after a oneday trial with six Crown witnesses, Victoria provincial court Judge Evan Blake dismissed the breach charge, saying the Crown had not proved that Whiffin was living on the farm during that time period.
"There is a realistic possibility that, despite what Mr. Whiffin told the probation officer, he was actually living on the boat and may not have been living on the premises," Blake concluded.
SPCA officer Lynsay Bailey testified that she visited the 25-acre property several times in April and May 2012. She had responded to a complaint and was concerned about a miniature horse at Whiffin's farm that was underweight, infested with lice and had an infection.
Bailey testified that the miniature horse was seen by a vet and moved to a neighbouring property. She reported that she saw two large white Maremma dogs and a flock of geese. However, the officer testified she did not see Whiffin on the property during her visits.
Central Saanich municipal bylaw officer Kenneth Neurauter testified that he had visited the property 31 times since 2005 and, 90 per cent of the time, found Whiffin in the old Trader Vic's building on the property. Neurauter said that on March 22, at the request of the municipality, he had the plumbing disconnected in the Trader Vic's building. The cooking facilities had been removed earlier, he said.
Neurauter testified that he visited the property on April 12 and 13 and did not see Whiffin. He had been told Whiffin was living on the boat and believed he was on board, although he didn't check. The bylaw officer did see Whiffin at the farm on April 16, he testified.
Prosecutor Tim Stokes said Whiffin had given his Mount Newton address to the court when he was sentenced and had not given any subsequent change of address to authorities, as he was required to do so.
"So when officers attend the property, they have every reason to believe he is in breach, that he is residing on the premises with animals and birds," Stokes said.
Whiffin's defence lawyer, Bill Heflin, called no evidence.
Heflin said at the time of the alleged offence, Whiffin was living on his boat, anchored about 20 metres offshore of his Brentwood Bay property.
"If you want to find him, you yell across the water.
So he didn't need to change his address anyway," Heflin said.
There was no doubt there were indeed animals and birds on the premises, said Blake.
"The question is whether the defendant was resident at the same time."
Whiffin gave his Mount Newton address to the bail supervisor and probation officer and did not notify them of any change of address when asked, Blake said.
"That is some circumstantial evidence of where he was residing but is not conclusive," said the judge.
The evidence is ambiguous about where Whiffin was residing in early April, Blake said. The SPCA officers never saw Whiffin on the premises. He could have lived on the boat after the plumbing was disconnected in late March, the judge said.
At the original trial, Whiffin also was charged with killing his horse when he hanged it using an excavator.
However, Wishart found he killed Jalupae humanely and acquitted him on that charge.
When she sentenced Whiffin and his co-accused, Clayton Cunningham, Wishart said she was concerned Whiffin and Cunningham had not learned from the experience.
Before she imposed sentence, Whiffin stood and said he did not realize he was responsible for the horse.
He also complained that he had not been given a chance to speak and had been treated unfairly.
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