Supreme Court of Canada grants stay in the case of B.C. ostrich cull

The sublime margaret court of Canada (SCC) has issued a remain in the caseful of a B.C. Struthio camelus farm fighting to stop a cull of its 400-bird flock over an avian flu outbreak.

The Canadian Food Inspection Agency had been preparing to destroy the flock at Universal Ostrich Farm near Edgewood in southeastern B.C. After avian flu was detected in some of the animals last December.

The order, issued Wednesday, pauses the agency's Dec. 31, 2024 Notice to Dispose, while the court mulls the farm's application for leave to appeal a lower court decision that allowed the cull to proceed.

The SCC order says the application for leave to appeal will be dealt with on an expedited basis.

The court directed that the CFIA maintain custody of the birds and said the farm must not interfere with federal oversight pending a decision on the application. The agency must file any response by Oct. 3, with the farm allowed to reply within two days of that filing.

RCMP officers — called in by the CFIA to help keep the peace during the cull — had arrested farm spokesperson Katie Pasitney and her mother Karen Espersen, who co-owns the farm, on Tuesday after they refused to leave the ostriches' enclosure the previous night.

They were allowed to return home, but are prohibited from entering the birds' pen, which remains under the control of the CFIA.

News of the interim stay order came on the farm just as a crowd of people had gathered for a prayer, and supporters erupted in cheers when Pasitney announced the decision. 

The mother and daughter embraced in celebration, with Pasitney declaring, "They live today."

"We have time and there's some time to figure out what's the next steps," she added.

Espersen said the news made her feel numb, but overjoyed.

"I just want to run in and hug my birds, but I can't right now," she told reporters.

"It's the power of prayer," she said, adding "this was too close."

Camille Labchuk, a lawyer and executive director of advocacy organization Animal Justice, called the decision "an eleventh-hour lifeline," saying animal law cases rarely reach the Supreme Court. 

The animal rights lawyer said she is "deeply concerned about the fate of these ostriches," questioning whether it makes sense to kill them so many months after avian flu was first detected. 

2 people arrested at B.C. Ostrich farm facing cull over avian flu

"Ostriches are intelligent, long-lived, and sensitive animals whose lives have individual value," Labchuk added. "They should not be killed simply to prove a point about regulatory authority, particularly if the risk of disease transmission has already passed."

Officials with the CFIA had begun building enclosures using hay bales Tuesday as part of preparations for the cull.

The hay bales were charred Wednesday morning in what police later said was a suspicious fire.

Workers could be seen spraying the blackened areas with water as smoke billowed from the three-metre-high enclosure. 

Farm co-owner Dave Bilinski said Wednesday that they would never start a fire nor condone it, and the farm has its own fire system because of concerns of peat or grass fires on the property. 

In a release later Wednesday, RCMP said emergency crews were called to the farm shortly before 4 a.m. PT and found the hay bales "fully engulfed in flames and smoke." It said the cause of the fire is currently under investigation.

Ostriches were visible behind the burned wall Wednesday, grazing and moving around, while several RCMP vehicles were stationed in front of the enclosure. 

The farmers have brought their fight to save about 400 surviving ostriches to multiple levels of court, arguing they are now healthy and scientifically valuable.

Both the Federal Court and the Federal Court of Appeal rejected the arguments and the Appeal Court later refused to grant a stay of the order to cull the animals. 

The owners have repeatedly called for testing to determine the birds' status.

The federal agency, however, has said in court documents that its policies do not allow for additional testing of the flock. It said the risk of the ostriches being infected or becoming infected again is unknown due to "gaps in the available science regarding how long immunity to [avian influenza] viruses may last in an individual ostrich."

The CFIA says the birds were infected with a more lethal strain of the avian flu virus. It says sources of infection can remain in the environment long after infected birds have recovered, posing a risk of reinfection.

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