R. v. Broklebank, 2000 CanLII 8540 (ABCJ)

Statute: Wildlife Act (AB),

Section: s 26(1)

Province or Territory: Alberta,

Offence: Killing,

Animal: Wildlife (local),

Type of Distress: Shooting a wild cougar without a license

Sentence: Found guilty

Legal Issue: Common defenses (Legal justification), Provincial case,

The defendant was charged with hunting wildlife without a license under section 26(1) of the Wildlife Act (Alberta) after he had shot and killed a cougar that was in a tree about thirty metres outside of his residence. The defendant was a rancher who ran a cattle operation on his land, with cows and calves in the immediate vicinity of his residence. His dog had also gotten into an altercation with the cougar after the animal had climbed down the tree and attempted to flee. The defendant testified that the need to feed his livestock and one of his daughters needing to leave for an appointment while the other daughter had limited cognitive ability and could not be left unsupervised factored into his decision to kill the animal that he considered dangerous. His argument was that he had shot the cougar in self defence to protect his property and the people on it.

Because the charge against the defendant is a regulatory or strict liability offence, the Crown is not obligated to prove intent: only that he had voluntarily shot the animal. If it could be proven that there was no other choice but to shoot the cougar, the defendant’s actions could not be considered voluntary but done out of necessity.

Upon review of the evidence, the judge determined that although the defendant had testifed that he considered the cougar to be a serious threat, he had waited three hours before killing the animal, which indicates that there was no immediate peril. Additionally, within that span of time, a number of other legal alternatives had been available that the defendant did not utilize such as calling the RCMP or the local Natural Resources office, secured his dog to allow the cougar to escape, waited to feed the livestock and keeping his family members inside the home until the authorities were able to come deal with the animal. As a result, it was found that the defendant’s actions were voluntary and he was found guilty.

Link: https://canlii.ca/t/51cf

R v Broklebank 2000 ABPC - Judgment

R. v D.K.M, 2023 BCSC 1467

Statute: Criminal Code,

Section: s 160(3); s 151, 152

Province or Territory: British Columbia,

Offence: Bestiality,

Animal: Dog,

Type of Distress: Forced dog to lick margarine off his 10-year-old granddaughter's genitals

Sentence: Found guilty

Legal Issue: Wilfulness,

Reasons for judgment from a case involving historical child abuse that included bestiality. The 78-year-old accused was charged with committing sexual offences under Criminal Code sections 151, 152 and 160(3) against his three biological granddaughters between 2004 and 2007. The victims were aged four and 11 at the time.

The offences were first reported when the eldest victim texted an image of a handwritten letter to her mother in November 2019 that disclosed that her grandfather had engaged in sexually inappropriate behaviour towards her. She stated she could no longer hold back the anger and frustration she felt nor live with the anxiety and depression the abuse and suppression of it had caused, and seeing her grandparents at a recent family event prompted her to reveal what happened. After receiving the text, the two women spoke on the phone which then led to the victims’ mother contacting her other two daughters separately to ask if their grandfather had also abused them. They each responded independently that he had “had engaged in inappropriate sexualized conduct in front of them but had not touched them” (para.62).

The charges levied against the accused revolved around him masturbating in front of the victims, forcibly exposing them to pornography then suggesting they enact what they had just seen, sexual comments to or about them, and attempting to engage them in sexual touching. The charge under s 160(3), bestiality in presence of or by a child, related to incidents that occurred between April and June 2013 when the victim was around 10 years of age. The accused asked the victim repeatedly to take off her pants until she ultimately complied, then instructed her to touch herself and how to do so. He then brought over margarine from the refrigerator and directed her to apply some to her genitals; once she complied, he picked up his small dog and held it in front of her genital region until the dog began to lick the margarine from the victim.

The judge found that the accused lacked credibility in both his evidence-in-chief and cross-examination, finding that he did not offer his own version of events and his responses were often that he had no recollection or that ‘anything was possible’; during cross-examination, he became argumentative and confrontational, sometimes using foul language that would devolve to outright denial (para.104). The court was satisfied that the Crown had proven beyond a reasonable doubt the elements of all offences relating to the six counts the accused had been charged with, with the exception of Count 2 where he allegedly tried to force one of the victims to sexually touch him (para.184). He was found guilty on all other charges.

Link: https://canlii.ca/t/jzss3

R v D.K.M 2023 BCSC 1467 - judgment

R. v. K.D.H., 2012 ABQB 471

Statute: Criminal Code,

Section: s 160; s 151, 152, 155, 163.1 (2) (3) (4), 246 (b), 271, 272(2)(b), 297(2)

Province or Territory: Alberta,

Offence: Abuse,

Animal: Dog,

Type of Distress: Sexual abuse of a dog in the context of child sexual abuse

Sentence: One year concurrent for the bestiality as part of the total sentence of 18 years imprisonment (minus just over three years for time served)

Legal Issue: Encourage/Aid/Assist, Sentencing (Imprisonment), Unnecessary, Wilfulness,

The accused was initially charged with 40 counts of criminal misconduct and pled guilty to 27 of the charges, including compelling to commit bestiality and bestiality in the presence of or by a child under s 160 of the Criminal Code. The judge noted that although the accused had pled guilty to s 160(1), there was no indication that he himself had committed bestiality, therefore he interpreted the bestiality charge to include section 160 as a whole (para. 6-7).

The accused’s first victims were his own children, KH1 and KH, who were 6 and 10 years old at the time the abuse began. KDH increased the sexual abuse of his daughter KH1 gradually over time, beginning with shared showers and progressing to sexual touching and a range of sexual abuses including intercourse beginning at age 11. The accused’s son, KH, had been subjected to less sexual abuse from the accused. However, he directed KH and KH1 to have sex with each other and attempted to involve the children in sexual activities with his adult partners and their children on a regular basis. Later, the accused’s relationship with RA resulted in a significant increase in the scope of his illegal sexual activities, including bestiality and providing MA, RA’s then-13-year-old daughter, to a friend for sex.

The accused also had an extensive collection of pornography comprised of images (28,500 total 4,760 unique) and videos (9,341 total‑ 4,355 unique), much of it child-related, but of the 4,760 unique images and 4,355 unique video recordings included in the non-child-related material a large portion involved bestiality (dogs and horses), scatological acts, or suggested rape and violence.

The accused’s conduct was shown to be planned and organized; the sexual abuse misconduct escalated over time where he groomed his child victims and exposed them to many forms of pornography including child pornography, fetish activities, incest, and bestiality (para.24). He was the household’s Master, and the other household members were expected to fulfil his desires at all times. According to the agreed statement of facts, the accused and RA planned to knock MA out so that he could have sexual relations with her. MA was then directed to participate in a variety of sexual and fetish activities involving RA, the accused, and AH, a friend of his. The accused whipped MA both sexually and nonsexually and directed MA to engage in bestiality. RA was told to restrain MA – her daughter – during sex, an order with which she complied.

The judge indicated that due to the relative lack of case law, the bestiality portion of the sentencing was difficult to assess, but noted that even single instances of bestiality warranted at least a one-year sentence (para.136). KDH was ultimately sentenced to a total of 18 years in prison, which was reduced by 1,137 days for time served.

Link: https://canlii.ca/t/fs78w

R v KDH 2012 ABQB 471

R v Drake (sentence), 2023 CanLII 68498 (NL PC)

Statute: Criminal Code,

Section: s 445.1(1), s 447.1(1), s 490.1(1)(a)

Province or Territory: Newfoundland and Labrador,

Offence: Abuse,

Animal: Cat,

Type of Distress: Kicking a cat down a flight of stairs

Sentence: 180 days minus 20-day credit: 60 days for assault and related breaches, 30 days consecutive for contacting her former partner, and 90 days for causing unnecessary suffering to an animal

Legal Issue: Sentencing (Imprisonment), Maim/Wound/Injure, Sentencing (Prohibition orders), Sentencing (Restitution orders), Suffering, Unnecessary,

This is the sentencing decision for the offender found guilty of causing unnecessary suffering to an animal as well as other charges relating to assault and breach of release and probation conditions over three separate informations that were heard together on May 10, 2023. The details of that hearing are available here.

The sentencing judge began by noting that the offender had appeared before them multiple times in the past and received suspended or conditional sentences with probation, but the noncustodial approach has failed to act as a deterrence for reoffending. Her diagnoses of borderline personality disorder, persistent depressive disorder, anxiety and substance use disorder (marijuana) were documented in the presentence report, as was the notation that the offender had been referred to services for mental health and addiction but that she was not interested in receiving such services. While mental health can be a mitigating factor in sentencing, the judge found no evidence of the offender’s reduced culpability due to mental health issues in the latest convictions and because she has consistently declined or terminated mental health services ordered in the past, it has “little relevance to her prospects for rehabilitation” (para.11).

The judge followed a three-step approach outlined by the Court of Appeal of Newfoundland and Labrador for multiple offence sentencing of an offender (para.19). They quoted a number of animal abuse cases such as Power, Barrett, Alcorn, Houle, Florence, Ehbrecht, Chen and Carr to highlight the range of sentencing for causing unnecessary suffering to an animal, quoting paragraph 33 of Chen that recognizes animal cruelty as a crime of violence (para.31) and Carr in paragraph 66 where the sentencing judge reiterates that animal abuse is a violent crime governed by the principles of denunciation and deterrence, that the accused was not a first time offender and that despite his early guilty plea and remorse, there were multiple aggravating factors (para.34). The judge summarized by stating that these cases suggest a trend of incarceration sentences for this offence.

The Crown sought a total term of imprisonment of nine to twelve months, which included three to four months for the animal cruelty charge, while defence counsel advocated for a conditional sentence of two years less a day to be served in the community, using the offender’s mental health diagnosis as a mitigating factor. The judge determined a spectrum of sentencing that included both consecutive and concurrent sentences and a 20-day credit for time served, for a net total of 160 days to be served in an institution due to the offender’s failure to comply with prior conditional court orders.

Of the 160 days, a 90-day consecutive sentence was ordered for causing an animal unnecessary suffering because the judge could not ‘in good conscience’ reduce it (para.43). Additionally, among the several ancillary orders, the offender will be placed on probation for 12 months upon release from custody where she would not be allowed any animal inside her residence or on property adjacent to it, a forfeiture of Goober to the provincial authorities under s 490.1(1)(a), a five-year animal prohibition order and a restitution order to cover the $166.75 veterinarian invoice under s 447.1(1). The amount for the SPCA invoice of $4080.00 for Goober’s care was waived due to the offender’s limited means and incarceration.

Link: https://canlii.ca/t/jzdm5

R v Drake 2023 NLPC canlii68498

R v Drake, 2023 CanLII 39084 (NL PC)

Statute: Criminal Code,

Section: s 445.1(1), among other offences such as assault, mischief by property damage, and failure to comply with release and probation orders

Province or Territory: Newfoundland and Labrador,

Offence: Abuse,

Animal: Cat,

Type of Distress: Kicking a cat down a flight of stairs

Sentence: Found guilty on all charges

Legal Issue: Maim/Wound/Injure, Suffering, Unnecessary,

The accused was charged over three separate informations with the commission of eight offences relating to an assault and breach of probation conditions involving an argument the accused had with her former intimate partner on July 11, 2022, a breach of release conditions on October 15, 2022 with another former romantic partner with whom the accused was prohibited from having contact or communication with, and causing unnecessary suffering to an animal in a complaint stemming from a TikTok Live recording on November 21, 2022.

Witness testimony indicated that the accused had punched and slapped her former partner in the face, threw garbage and food around the home after he had ended the relationship and asked her to leave his house in the July incident. Upon arrest for the breach of release order in the October altercation, the accused told police she was going to kill herself causing them to divert to hospital; she was taken to the police detachment after the doctor on duty confirmed that she was fit for incarceration, where she declined the opportunity to contact legal counsel. With regard to the animal cruelty allegation, three TikTok users called the RCMP individually to report that they had seen the accused kick her cat Goober over a flight of stairs in a live feed, and the cat sounded like it was screaming. A video was submitted to evidence where the accused is seen asking Goober if her trip down the stairs was too rough.

The accused stated that she has severe depression, PTSD, anxiety and a borderline personality disorder. She also indicated that she treated Goober like her fur-baby and denies kicking her but admitted that sometimes she has had to yell in order to make Goober comply with directions. Counsel for the accused indicated that Goober may have been in heat, which would account for the sounds she was making, and that although three TikTok viewers called police to report animal cruelty, none of them had recorded it.

In analysis, the judge found that the accused lacked credibility and that her evidence was self-contradictory or simply blatant denial. The judge also found that the testimony of three witnesses who watched the accused kick the cat down the stairs was sufficient to find it as fact, indicated ‘at the risk of stating the obvious, kicking an animal down a flight of stairs will cause the animal unnecessary pain’ (para. 88) and was therefore satisfied beyond a reasonable doubt that the accused had committed the offence.

The accused was found guilty on all charges.

Link: https://canlii.ca/t/jx3xk

R v Drake 2023 NLPC 0822A00132

R v Zhang, 2022 SKWB 192

Statute: Charter of Rights and Freedoms, Criminal Code,

Section: Criminal Code s 445(1)(a); Canadian Charter of Rights and Freedoms s 11(b) and 14

Province or Territory: Saskatchewan,

Offence: Abuse, Killing,

Animal: Cat,

Type of Distress: Killing one cat and seriously injuring another

Sentence: Five-month conditional sentence order with statutory conditions upheld on appeal

Legal Issue: Charter of Rights and Freedoms, Sentencing,

Zhang is appealing the five-month conditional sentence for killing one cat and seriously wounding another wilfully and without lawful cause. In 2019, he had been left at the home where he lived with his partner of four years alone with two young children and two cats and when his partner returned, she found one cat dead and the other injured. The police were called, and Zhang made a statement that he had been fighting with the cats while giving them a bath and they scratched him. At trial, his partner testified for the Crown that Zhang had told her that he didn’t know that the cat would die by him hitting them. The defence called no evidence.

Zhang raised five issues on appeal, all of which were dismissed by the Court that found the sentence was reasonable and appropriate. Among Zhang’s claims were the following:

That there was inadequate assistance of counsel that led to a miscarriage of justice. The judge found that there was no evidence of any professional misconduct and Zhang did not meet the onus of proof to show any miscarriage of justice.
That his section 14 Charter right to an interpreter was breached because there was no interpreter for the whole trial. The judge found that an interpreter was present in the trial when all evidence was put forth and only left once all evidence was in.
That the trial judge failed to adequately consider all the evidence and provide reasons for his conclusions. It was determined that the trial judge was made aware of the issue of circumstantial evidence and properly assessed the credibility of the witnesses.
That the trial was not conducted within a reasonable time frame according to R v Jordan, violating his section 11(b) Charter rights. Although the presumptive ceiling is 18 months for cases tried in Provincial Court, and Zhang’s trial was a total of 21 months, 19 days, the judge found that the additional delay was due to exceptional circumstances (COVID-19), and that the delay was not unreasonable.
That the sentence imposed was unreasonable. The sentence was found to be appropriate as the maximum penalty is imprisonment for a term of 2 years. A jail sentence was appropriate and required, but since Zhang had no record or any other charges since the offence, a five-month community-based jail sentence with conditions was appropriate.

Link: https://canlii.ca/t/jrnz6

R v Zhang 2022 SKQB 192

R v Gartner, 2019 BCPC 307

Statute: Criminal Code,

Section: s 445.1(2)(b)

Province or Territory: British Columbia,

Offence: Abuse,

Animal: Rabbit,

Type of Distress: Abuse and torture of rabbit: plucking its whiskers, punching, slamming into a building, shaking while being suspended by its ears and tail, kicking, squeezing, and suffocating.

Sentence: 240 days for animal cruelty for a total of 10 months' imprisonment on all three charges; 2 years of probation and a 10-year prohibition from owning or having custody/control of, or residing in the or residing in the same premises as any animal

Legal Issue: Sentencing (Imprisonment), Maim/Wound/Injure, Sentencing (Prohibition orders), Suffering, Wilfulness,

Gartner entered into a guilty plea for three offences: (i) wilfully causing pain, suffering and injury to an animal; (ii) possession of stolen property; and (iii) possession of heroin.

On May 3, 2019, Gartner was observed to attack and torture a rabbit in an incident which lasted approximately 12 minutes and was captured on two security cameras. He plucked its whiskers, slammed its face into the side of a building and punched it. He then shook the rabbit violently while holding it suspended from its ears, and later by its tail, kicked the rabbit, folded the rabbit, squeezed the rabbit’s chest and abdomen and flipped it back and forward on the concrete. Lastly, Gartner pinched the rabbit’s nostrils closed for intervals of 6, 12, and 18 seconds in duration.

During a search incidental to his arrest, he was found to be in possession of heroin, and had a lengthy criminal record for impaired driving, breaking and entering, theft, and mischief. He struggles with substance use disorder and shows no remorse or reasoning for the assault on the rabbit. Upon psychiatric assessment prior to sentencing, it was determined that ‘the only remaining reason for this torture was for the pleasure of inflicting pain while having power and control over the animal. … this type of wilful sadistic pleasure is unlikely to be quenched with what was seen on the video and … Mr. Gartner remains a threat … [to animals]’ and ‘when speaking about the offence … Mr. Gartner failed to show a level of emotion of remorse. His level of lamentations was for being caught’ (para. 8).

Gartner was sentenced to 8 months in jail for the assault on the rabbit to be served consecutively with the sentences of 45 days for the possession of stolen property and 14 days for the heroin possession, resulting in a global sentence of 10 months. The judge based the animal cruelty portion of the sentence on R. v. Munroe, where the accused had severely assaulted two dogs and was initially sentenced to 12 months’ imprisonment but reduced to six months on appeal.

Gartner will also serve two years of probation and is subject to a 10-year animal prohibition order which will end on December 31, 2030.

Link: https://canlii.ca/t/j46xm

R v Gartner 2019 BCPC - Judgment

R v Purvis, 2023 ABPC 29

Statute: Criminal Code,

Section: s 445(1)(a), 445.1(1)(a)

Province or Territory: Alberta,

Offence: Killing, Other,

Animal: Cat,

Type of Distress: Caused house fire that led to death of one cat, smoke-related injuries to four others

Sentence: 18 months incarceration; two years' probation; and 15-year animal prohibition order

Legal Issue: Sentencing (Imprisonment), Maim/Wound/Injure, Sentencing (Prohibition orders), Suffering, Unnecessary, Wilfulness,

The accused entered a guilty plea for arson, killing a cat and causing unnecessary pain and suffering to four cats when he lit the basement storage room on fire in the home that he shared with his former intimate partner that he continued to live with. The home was ultimately demolished, and one cat died from carbon monoxide poisoning. The remaining four cats survived although they required oxygen and treatment for toxic smoke exposure to their eyes.

The police were dispatched initially to perform a welfare check after receiving a call that the accused had taken excessive insulin as a suicide attempt and lit the home on fire. His ex-partner had received text messages taunting her with what he had done after she had messaged to advise there would be no utilities at the home the following week; the accused had responded with “LMAO awesome the house won’t be here and the cats lmao bring it c–t… Besides I took enough insulin I won’t be coming back I lit a fire in the basement bye” (para. 3(h)).

The Crown sought a global sentence to 3.5 to 4 years, while defence counsel sought a conditional sentence.

The Court found it aggravating that if he was intending to end his life, the fire was extraneous and a demonstration of animosity towards his ex-partner. He was also fully aware the cats were in the home and that he was in a position of trust over them that he breached. The Court cited Chen throughout the decision, specifically with respect to sentencing that should reflect the nature of animal cruelty crimes:

As we know, animals are sentient beings that feel pain and suffering. As a result of the arson, and as already mentioned, one cat died, and four required treatments for smoke inhalation. These offences are serious. However, I must also be mindful that when assessing the severity of the arson offence, I took into consideration the death and suffering of the cats — it is difficult not to. Regardless, it is important that I do not double down when contemplating this factor in assessing the severity of these offences. The inability to separate these consequences when looking at both the arson and the animal cruelty cases highlights their interconnectedness. (para.23)

The Court was also aware of his mental health issues although no formal report had been made, that alcohol was a significant factor and accepted that he had been alcohol free since the offence but had not attended treatment or counselling. It was determined that an 18-month concurrent imprisonment for the arson and animal cruelty offences, minus six and half months for pretrial custody, along with two years of probation and a 15-year animal prohibition order “to provide protection for animals who are victims of such crimes” (para. 139) was a proportionate sentence.

Link: https://canlii.ca/t/jvt6n

R v Purvis 2023 ABPC 29

R v Minions, 2022 BCPC 148

Statute: SPCA Act (BC),

Section: s 9.1(1) and (2); s 24(1)

Province or Territory: British Columbia,

Offence: Hoarding, Neglect,

Animal: Dog,

Type of Distress: Lack of veterinary care and failure to provide adequate food, water, space, ventilation, and sanitary conditions.

Sentence: Guilty on both counts

Legal Issue: Provincial case (Adequate: (providing adequate care)), Provincial case (Distress),

The accused was found guilty of violating sections 9.1(1) and 9.1(2), therefore committing an offence contrary to section 24(1) of the province’s Prevention of Cruelty to Animals Act after 29 dogs were seized from her property where they were deprived of ventilation, space, water, care, and veterinary treatment.

Eight dogs were found in a vehicle inside the garage, another two were found in a small SUV, and a further five dogs were found in the laundry room with no food or water; the home smelt very strongly of urine and feces and the temperature in the laundry room was found to be 27C. Veterinary evidence showed that numerous dogs had dental issues, overgrown nails, matted fur around paws and eyes, feces matted onto fur, and one dog had a festering ear.

The accused testified that the eight dogs in the vehicle in the garage belonged to a friend: they were picked up in the morning and she was going to groom them for free later. The defence provided no explanation regarding any of the other dogs.

The judge found that the conditions in the home, specifically with respect to the odour from the urine and feces covered newspapers being exposed to such hazards would likely cause the dogs to be in distress as they were deprived of adequate ventilation or care and being kept in unsanitary conditions. The judge also rejected the defence’s argument for leaving the 8 dogs in the vehicle in the garage, finding that it was likely that the accused used vehicles as “kennels” for dogs based on the damage to the interiors of the vehicles and if that damage was done in the course of a day, it further illustrated that the dogs left in vehicles were in distress as they were deprived of adequate space, water/food, and ventilation.

The accused was found guilty on both counts.

Link: https://canlii.ca/t/jnf4h

R v Minions 2022 BCPC 53

R v Edwards, [2022] AJ No 1289

Statute: Criminal Code,

Section: s 445.1(1)(a)

Province or Territory: Alberta,

Offence: Abuse,

Animal: Cat,

Type of Distress: Beating (throwing kitten against a wall and subjecting him to hot and cold water)

Sentence: 18 months incarceration, followed by 12 months' probation and lifetime animal prohibition order

Legal Issue: Sentencing (Prohibition orders), Suffering, Unnecessary, Wilfulness,

The accused was taking care of his girlfriend’s 10-week-old kitten while she was away when he became frustrated because the kitten urinated on him. He proceeds to throw the kitten against the wall and subject him to a hot water “bath”, causing the kitten injuries consistent with either very hot water or bleach. When his girlfriend returned, the accused had attempted to cover up what he had done and manipulated his girlfriend into saying that she had left the kitten with her cousin when she took him for veterinary care.

The kitten’s other injuries resulted in the amputation of the tips of both ears, amputation of the tip of the tail, amputation of all the toes on its hind feet, and amputation mid paw. According to a veterinary expert’s report, the cat will endure chronic pain due to nerve damage, and eventually get arthritis which will shorten his life..

The judge recognized this as a serious criminal code offence, stating “I do not need to own a pet to know that this is a horrible, horrible offence. And these animals cannot fight back, they cannot take care of themselves. They are totally at the mercy of the people who are caring for them at the time” (para. 434), and also acknowledged the breach of trust not only to the kitten but also his girlfriend.

The accused’s mitigating factors included a guilty plea, having been in custody for 338 days, and his psychiatric reports indicating that he suffered from mental health issues with a cannabis use disorder that caused occasional substance-induced psychosis and antisocial, narcissistic and borderline personality disorders. Aggravating factors were the gravity of the offence, the attempt to cover up the crime, and that the accused has a high risk for future violent behaviour and a moderate elevated risk for intimate partner violence (para. 346).

After balancing the aggravating and mitigating factors, the judge ordered a sentence of 18 months of imprisonment, 12 months of probation, and a lifetime ban on the ownership, care, control or residing with animals.

R. v. Edwards 2022 AJ 1289