Final legal arguments were made via Zoom on Friday at the trial — publicized on social media — of an animal rights activist charged with breaking and entering into a South Frontenac Township mink farm three and a half years ago. Superior Court Justice Julianne Parfett has now reserved her decision on the case, indicating she will deliver her judgment to the parties electronically at an unspecified future date.
Malcolm Klimowicz has pleaded not guilty to the offence, although he’s never denied that he entered the property of Walt and Heather Freeman without permission and in the middle of the night on Aug. 1, 2017. He went there to surreptitiously videotape conditions inside the barns where the Freeman’s mink were being housed, and he posted his video footage on YouTube in early 2018, contending that the animals’ living conditions were unhealthy and their treatment inhumane.
Klimowicz didn’t interfere with or remove any of the mink or cause any damage getting into the farm buildings, and Walt Freeman testified at his trial that he was unaware of Klimowicz’s intrusion until about six months later when he viewed online the YouTube video Klimowicz had produced.
However, following the release of those images, together with Freeman’s name and the address of his farm, the complainant told Justice Parfett he felt compelled to install video surveillance and hire a security guard.
Klimowicz is being represented at trial by a team of defence lawyers from Toronto, Gary Grill and Alexandra Pester. In his final submissions, Grill conceded that if the judge finds the Crown has proven his client’s intention when he entered the property was to commit an indictable offence, it follows that his presence there was breaking and entering, regardless of the absence of locked doors or physical barriers to impede access to the uninvited.
The defence has argued, however, that the whole case turns on determining what Klimowicz intended to happen or could reasonably have expected to happen as a result of his intrusion. “It’s not about whether something is possible or not,” Grill told the judge, or even about something that did happen. “It’s about what he (Klimowicz) intended to happen.”
Klimowicz is opposed to fur farming, and assistant Crown attorney Holly Chiavetti has argued to the judge that his intention when he intruded on the Freemans’ farm was to commit criminal “mischief” by interfering with the land holders’ lawful use and enjoyment of their property.
Grill argued that his client intruded on the land and barns solely to collect information and argued to the judge that “no one commits mischief by reason only that he attends at a place with the intention of obtaining information,” which in the case of his client, he added, was meant to inform public discussion about what the defence lawyer characterized as pro-social societal goals.
“Figuring out what Mr. Klimowicz’s intention was when he did what he did is very easy in this case,” Grill told the judge, adding that, “It’s not open for my friend (the Crown prosecutor) to imagine how mischief could be committed in this case.”
He argued that the crime of mischief requires an “actual interference with the enjoyment of property,” and he contended that there was no evidence to support such a claim on Freeman’s behalf. The fur farmer suffered no material losses, he told Justice Parfett, and Grill suggested that his only grievance related to him being deprived of what Grill contended is an illusory sense of control over who has access to his land and barns.
Chiavetti pointed out to the judge that Klimowicz didn’t just publicize information about fur farming or conditions on fur farms, however. He included the address of this particular fur farming operation, and she argued that Klimowitcz’s intention was both to “engender a public outcry to further his interest in ending commercial fur farming” and “to disrupt Mr. Freeman’s ability to use his property for that purpose.”
Chiavetti also told the judge that Klimowicz didn’t “have to intend every single consequence of what could happen to be guilty,” and she argued his intentions could also be inferred on the basis of “reasonably foreseeable consequences.”
She disputed Grill’s contention that the fur farmer has no privacy rights with respect to his barns.
Grill told the judge that the Supreme Court has established there’s a greater expectation of privacy in a home than there is in a public place, and that expectation, he suggested, is “attenuated” in relation to businesses, although he later expanded on that statement, suggesting that Freeman ”enjoyed no expectation of privacy in these commercial premises.” And if he held such an expectation, Grills said, it was not a reasonable expectation because “he knows that agents of the state could enter his property at any time to inspect how he was caring for his mink.”
He told the judge it was important to note, as well, that his client “had a reasonable belief that Mr. Freeman was not acting lawfully,” based on his own investigations and determination that “nobody was inspecting these farms, they were completely unregulated.”
Chiavetti countered that Klimowicz didn’t know what he was going to find on this particular fur farm, however, and argued that he can’t use what he found elsewhere as justification for intruding on Freeman’s property.