Karen Espersen, the co-owner of the Universal Ostrich Farms in Edgewood, B.C., celebrates with her family.AARON HEMENS/The Canadian Press
Hundreds of ostriches at a farm in southeastern B.C. hit with a bird-flu outbreak nine months ago got a reprieve from imminent death after the Supreme Court of Canada issued a temporary stay Wednesday so it can decide whether to hear an appeal to cancel their federally mandated cull.
Justice Michelle O’Bonsawin granted the stay of proceedings on the cull of the 400 birds ordered last December by the Canadian Food Inspection Agency, and she told the CFIA to maintain custody of the ostriches on the farm in Edgewood, B.C.
She also instructed the owners of Universal Ostrich Farms Inc. to stay away from the animals.
The ostriches’ plight has garnered international attention and support from U.S. figures such as Health Secretary Robert F. Kennedy Jr. and former television personality Mehmet Oz, now the administrator for the Centers for Medicare & Medicaid Services.
The birds have not been tested in the almost 10 months since two of them tested positive for avian flu and roughly 10 per cent of the flock died. The farmers have waged a high-profile social-media campaign, attracting supporters, some with anti-government views. Dozens of RCMP officers have been at the farm since Monday to assist CFIA workers.
B.C. ostrich farmers make urgent appeal to Supreme Court to stop cull of flock
Supporters responded with cheers and tears to the Supreme Court’s decision to stay the cull temporarily.
The CFIA issued a statement Wednesday evening saying it will take care of the birds as it files its response to the farmers’ appeal application as soon as possible. It also warned the public not to try to enter the cordoned-off areas of the farm.
In the farmers’ application for leave to appeal earlier court decisions approving the destruction of the birds, they argue their ostriches have all recovered from last year’s outbreak and pose a negligible risk to nearby wild animals or other livestock.
Plus, they say in their application, they have since drained the pond believed to have drawn in the wild ducks that brought the virus onto the property.
The CFIA must file its response to the Supreme Court by Oct. 3 and then the farmers will have a further two days to complete their response to the government’s arguments, Justice O’Bonsawin wrote.
The decision by the Supreme Court to grant the stay does not mean the justices will hear the farmers’ case.
The justices typically take one to three months to decide on whether such an appeal will be heard, but they don’t give their reasons for accepting or rejecting cases.
Toronto litigator Paul-Erik Veel, who has collected data on the likelihood of cases being heard by the Supreme Court, said roughly 90 per cent of such applications are denied.
U.S. right-wing commentator Chris Sanders offers to house B.C. ostriches facing cull order
Last year, the courts agreed to hear 34 cases.
The emergency stay came as a surprise to Mark Mancini, a professor of law at Thompson Rivers University, who noted it is rare for an applicant to be granted such an order.
“The severe impact on the farm owners may have weighed in their favour,” he said.
But he noted the high bar for the Supreme Court to agree to hear a case. “Basically: Is the case of national importance?” he added.
Mr. Mancini, who has been following the controversial cull order closely, also cautioned that the court is limited in the arguments it can hear in the case.
“All they can really consider is whether the CFIA decision in this case was legally justified.”
Mr. Veel agreed, noting the courts have been instructed by the Supreme Court to be deferential to government policy decisions. “Courts generally don’t second-guess that.”
The RCMP, which have repeatedly pointed out they are only there to facilitate the work of the inspection agency, said protesters have been peaceful. But they issued a news release Wednesday stating they were investigating a suspicious fire started before dawn that morning.
Someone had set fire to some of the hundreds of hay bales stacked into makeshift pens on the farm, Mounties said.
Katie Pasitney, a spokesperson for the farm who was briefly arrested Tuesday with her mother Karen Espersen, who is a co-owner of the farm, told The Globe and Mail that she, her mother and the other co-owner Dave Bilinski are still barred from feeding the animals:
“We’re trying to work with the CFIA, to get them to do a better job of it.”
Ms. Pasitney alleges that all camera feeds to the pasture have been cut, so they don’t know whether the animals are eating.
They are trying to convince CFIA agents to stop throwing feed on the ground and to put it in buckets instead – the way they have fed the animals for decades.
And they managed to convince agents to use the farmers’ feed – what the animals have been eating for years – rather than the feed they trucked in, she said.
Karen Espersen and Katie Pasitney, the mother and daughter at the centre of a movement to save their flock of 400 ostriches from a cull order, hear the Supreme Court of Canada had granted a last-minute stay, sparing the birds for now.
The Canadian Press