Rescue of Belle and Sundance...AFTERMATH #1

RESCUE  OF  BELLE  AND  SUNDANCE 

THE AFTERMATH #1

On February 24, 2009, following a lengthy B.C. SPCA investigation, Frank Mackay was charged with three counts of. animal mistreatment—-two counts under the Criminal Code of Canada (causing unnecessary pain or suffering to an animal and willful neglect in the feeding or care of animals) and one count under the British Columbia Prevention of Cruelty to Animals Act (causing an animal to be or to continue to be in distress). If convicted of the more serious Criminal Code offences, he could face a maximum fine of $10,000, up to five years in jail and a prohibition on owning animals.

Mackay was to make his first court appearance in McBride provincial court on June 12, 2009, but that was adjourned to August 14, and then once more to October 2. Some wondered if the case would ever be heard. Finally, on December 4, 2009, almost a year after the rescue, the erstwhile owner of Belle and Sundance faced the music.

There is no actual courthouse in McBride, but about five times a year a provincial court judge comes to town and sets up shop in the village council chambers, housed in a one-storey strip mall. The room used is modest, with high-backed faux leather chairs and armrests for the judge and court officials, low wooden chairs for everyone else, a framed picture of the Queen flanked by the provincial and national flags to lend the room a little gravitas and, finally, that traditional symbol of authority-—a judge's wooden gavel resting on a sound block.

Mackay and I had spoken on the phone when I interviewed .him, but his court appearance marked the first time I saw him in the flesh—a compact man of average height with light blue eyes, receding grey hair and a ruggedly handsome face.

Light snow was falling when he arrived at the chambers around 10:00 a.m., with his lawyer, Alexander Pringle. One lawyer defending another, with seventy-four years of experience between them. There was no sign of the cockiness I had heard about from Frank Mackay. He looked decidedly uncomfortable and, as far as I saw, made eye contact with no one.

The docket that day was full, as were the chambers. Several men and women were there to attend to their own brushes with the law—some to contest traffic tickets, some charged with more serious matters-—-and many others were family and friends of those so charged. Along with one of my farm workers, plus Ray and Lu, I was there to hear item number six on the judges list— the Queen versus Frank Mackay. So too was the editor of the Jasper Fitzhugh. As far as I knew, the five of us were the only ones present specifically to witness the meting out of justice to Frank Mackay.

The first order of business was to hear the charge. Mackay's lawyer and the Crown prosecutor, Geoffrey McDonald, had before this day engaged in plea bargaining. In this process, the accused agrees to plead guilty to a lesser charge in order to spare both sides the time, expense and uncertainty of a trial. What then goes to the court is called "a joint submission." The two lawyers had agreed that the two more serious Criminal Code charges, which would have branded Frank Mackay with a criminal record, would be dropped. But the accused would plead guilty to the third charge, which was read aloud in court:

Frank Mackay, between the 11th day of September, 2008, and the 23rd of December, 2008, at or near McBride, in the province of British Columbia, being a person responsible for an animal, to wit: horses, did cause or permit the horses to be or continue to be in distress [that's contrary to a section of the Prevention of Cruelty to Animals Act, Section 24(1)].

The judge asked Mackay how he would plead. Mackay, discomfited, replied, "Yes, sir, I plead guilty." McDonald then laid out the story as he understood it. Calling the case "rather well known," the lawyer said that "the Crown takes issue with Mr. Mackays conduct"—telling the RCMP in mid-September he'd be around to deal with the horses "the- following weekend," then not returning for six weeks. Then, when the accused did finally locate them early in December, the Crown considered unacceptable his decision to "let nature take its course." Starvation, McDonald reminded the court, "is a rather nasty way to go."

I had bristled the first time I'd heard Frank Mackay say it—"I let nature take its course"—when I interviewed him for the newspaper on January 7 of 2009. I bristled to hear it again in coiirt that day. Many in the Robson Valley—and certainly the rescuers and diggers—strongly felt that nature hadn't put those horses on that mountain. Frank Mackay had.

The Crown prosecutor told the court that Mackay had provided his office with pictures of the horses on the trip. Two local horse experts had determined by examining the photos that the horses were in good health and well trained at the beginning of the trip.

When it was time for Mackay's lawyer to address the court, Pringle stated that his client had practised law in Edmonton since 1970 and was "well known in the Edmonton legal community as being a very highly regarded, ethical and responsible lawyer." Mackay had during the past ten years been involved with two charities—the Tegler Foundation, which finances homes for seniors, and "Meals on Wheels"—and was known as "an extremely generous person who . . . normally would give the shirt off his back to somebody."

Ten years ago, Pringle noted, Frank Mackay purchased three horses who were supposed to go to slaughter. He bought an acreage and acquired more horses. In September of 2008, Pringle said, Mackay had agreed—"as a fairly noble gesture"-—-to bring food to a friend who was hiking the Great Divide. It would be his first foray into the high country by himself, and Mackay thought that such a trip would offer a good experience for his horses too. The rest of the story that Pringle oudined was familiar to me: the muskeg encounter, the pack horses' no longer following their owner, the two attempts to retrieve them and the decision not to euthanize the horses but to abandon them on the mountain.

"The irony," Pringle told the court, "is that the horses survived by that decision. I am not saying it was the right decision. He has obviously made an error in judgment here. . . . He, upon reflection, recognizes there is more that could have been done."

Pringle also described the single-vehicle accident that befell his client as he made his way back to Edmonton that December night in 2008. Mackays vehicle went off the road, leaving him with a significant cut on his head and a concussion. "He was in disarray," the lawyer said, "for a couple of weeks thereafter."

According to Pringle, Frank Mackays "error in judgment" had cost him dearly. He had received threats, been reported to the Alberta Law Society and been brought before the court. "For a man," said Pringle, "who has never been engaged in any untoward behaviour before, this has been a harrowing experience, and he certainly regrets this event greatly and comes before you remorseful."
Mackay, said the lawyer, had "learned a lesson" from "this entire series of events."

Through his lawyer, Mackay made a statement to the court, which read, in part:

Your Honour, eighteen months ago I knew only that McBride was on the Yellowhead between Edmonton and Prince Rupert. This is now my sixth visit to McBride and area. In this time, I have had the opportunity to speak personally or by telephone with many members of the community, whom I have found to be understanding, sympathetic, friendly and helpful. In particular, I wish to thank a local cowboy who loaned me two pack horses in my attempt to locate the horses ... as well as the brand inspector who kept me advised to the progress of the volunteers who rescued the horses. ... And most importandy, I wish to thank the rescuers who volunteered' their time and effort to rescue these horses, which demonstrates the total unselfishness and community spirit of the citizens in the McBride area. It must have been a great feeling of contribution and success to bring these horses to safety, and, of course, it made a great Christmas story for all. If it had not been for the accident, I would gladly have participated in the rescue.

With Pringles remarks finished, Judge Michael Gray asked him if his client had contacted the RCMP or the authorities after the two failed attempts to retrieve his horses.

Mackay spoke up. "No."

"No, he didn't, sir," said Pringle.

"I see," the judge replied.

"He tried to do it on his own," Pringle added.

The Crown lawyer rose to point out that had the accused made those contacts at the appropriate time, this matter would most likely not have come to court.

When the judge asked Mackay if he had anything to add, he replied, "No, I am fine. Thank you, sir."

By this point, an hour had lapsed. The judge said he needed time to consider documents and photographs gathered as evidence in the case. He adjourned court until just before noon.

When court returned to session, Judge Gray looked straight at Mackay. "This was a notorious case in terms of publicity," he said, "and it was a notorious case in terms of the actions that were not taken for the protection of those animals."

He continued by addressing the "entirely inappropriate" comments attributed to Mackay in the press. "I understand from your apology, today that you regret your behaviour in a number of aspects, but it seems to me after the investigation was commenced and after the incident received that large national publicity, you still conducted yourself in a way that was regrettable and certainly not professional." Such behaviour, the judge stated, was unbecoming of "an officer of the court" who was potentially under investigation and facing possible charges.

Judge Gray also addressed the wider issue of horses being abandoned as a matter of practice. "That is a difficulty we have in the more remote regions of our country. In the backcountry, outfitters often take steps where they abandon horses. It is not acceptable, but it is done. . . . Where found out, it needs to be remedied."

The judge reprimanded Mackay for not contacting the RCMP and other authorities after his two failed attempts to retrieve the horses. "You did not follow up with that, which leaves me with the impression that you had made a business decision to just leave matters as they were."

In handing down his decision, the judge said he was taking into account Mackay's record as a "lawyer of longstanding and good repute, and there is no criticism to be made there." In administering punishment, the judge also considered the psychological trauma that Mackay had already endured, his age and the trauma he'd suffered from his accident. Judge Gray wondered aloud if the concussion "may have led you to conduct yourself in that regrettable fashion."

Frank Mackay was ordered to pay a $1,000 fine, a $150 victim fine surcharge and restitution to the B.C. SPCA in the sum of $5,910.16, an amount representing the cost of vet exams during and after the rescue and the cost of transporting and temporarily boarding the horses. Mackay was also prohibited from owning any animals for two years (but only in British Columbia, the only province where the judge had authority), given a probation order for two years and ordered to undergo counseling—"to ensure that there is a proper response to mental health issues" and to educate Mackay on the proper care and custody of animals. Had Mackay lived in British Columbia, and not Alberta, the judge said he would have insisted that Mackay complete a course offered by the B.C. SPCA.

The judge further instructed Mackay to deliver a copy of his probation order to the nearest SPCA office in Edmonton and to the provincial SPCA office in Alberta to alert authorities there. He was also to purchase an advertisement in two issues of our local weekly newspaper to publish the statement that his lawyer had read in court. The notice, addressed to "Residents of McBride and area" and signed by Frank C. Mackay would appear in the Valley Sentinel early in February 2010.

I felt no sympathy for Frank Mackay in the courtroom that day. He remained stoic and unemotional throughout his time before the judge. What I felt most acutely was disgust at what he had done and small satisfaction that, at last, he had to face the consequences of his actions. Like Lu and Ray and others I spoke with later, I was pleased that charges were laid but disappointed that criminal charges fell by the wayside. At least Belle and Sundance would never return to their previous owner, and many of us took consolation in that.

Reaction to the news was swift and varied. Some thought the penalty should have been far more severe, others thought justice had been served, and some believed the proceedings were beside the point—that Mackay had suffered enough.

However, the case of the Queen versus Frank Mackay was not to end there. Mackay appealed the judges ruling about probation and counselling, arguing that Judge Gray lacked the authority to impose either. Early in February of 2010, a provincial Supreme Court judge in Prince George agreed with him.

"He got off easy," said Ray Long tersely. Every day throughout the rescue, Ray had spoken on the phone with Reg and Monika. The horses and their plight had consumed his thoughts, and he was frustrated that, to his mind, the author of their misery had received so light a punishment.

Stu MacMaster wasn't happy that Mackay had "weaseled out" of counselling, but he accepted the outcome. "The law is the law," he said. "I hold no grudge against the guy."

When I phoned Monika Brown to tell her about the Supreme Court ruling, she said that "counselling would have been the icing on the cake," but for her, what mattered more than anything was that Belle and Sundance got down off that mountain and will never undergo such an ordeal again. "I really like the word guilty" she said. "I wanted to see the word guilty over his head. That word meant a lot to me." And she hoped that the notoriety of the case might cause those inclined to starve or neglect their horses to think twice.

Sara Olofsson thought that forcing Mackay to pay restitution to the SPCA for expenses made perfect sense, and the guilty plea, she felt, sufficed as an admission that what he had done was wrong. As for the thanks to the community expressed in that court-ordered newspaper ad, she questioned its authenticity: it just didn't strike her as genuine.

When Dave Jeck had called Frank Mackay after the second-last day of digging on the mountain, he'd felt some sympathy for the man. "There are a lot worse things than what he did," Dave said. "Still, he made the wrong choice, definitely. After going over it more in my mind, thinking about the way he reacted, I became less sympathetic to him. I have no real sympathy for him now, not anymore."

It rankled Dave, as it did many others in the valley, that during the rescue and long afterward, Mackay expressed no gratitude to anyone for saving the lives of his horses. "If he wasn't physically capable of digging," said Dave, "he could have phoned me. I had no animosity toward him. He could have asked, 'Hows it going up. there?'"

Dave didn't much care about the sentencing, or the counselling for that matter. The public, the Internet jury, he felt, had already rendered their verdict. What would have angered Dave, though, was to see Mackay get his horses back.

Glenn Daykin was another McBride resident who believed that Frank Mackay had suffered adequate punishment even before his day in court. "What he did was wrong," Glenn told me one day in his shop some five months after the rescue, "but I think he's been crucified. They might as well have dropped a rope from a tree."

Frank Mackay's guilty plea was widely broadcast. Colleagues at his law firm couldn't have been thrilled at this unwanted, ongoing and negative publicity. Google "Frank Mackay + Edmonton lawyer" and up would come listings for his eight-lawyer personal injury law firm, but so too would numerous references to abandoned horses and charges laid. What happened on Mount Renshaw was no doubt a nightmare for those two horses, but I have a hunch it had been a nightmare of a different sort for Frank C. Mackay.

The backdrop to all this, and it may well have figured in Mackay's thinking (and fuelled his anger at the public outcry), was a long...

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