R v Aubrey-Lafreniere [2018] O.J. No. 5589

This was a voir dire ruling on whether a Crown witness should be qualified as an expert witness and permitted to give opinion evidence on veterinary medicine. The court applied the two-part test in R v Mohan (1994) 2 SCR and held the evidence was admissible.

First stage (threshold) – the expert evidence must:

  • be relevant
  • be necessary in assisting the trier of fact
  • be absent of any exclusionary rule
  • be from a properly qualified expert

Second stage (gatekeeper) – the trial judge must exercise discretion by balancing any potential risks and benefits of admitting evidence.

Issues of bias, independence and impartiality must be taken into account at both stages.

The defendants argued that the witness, Dr Johnson, was biased. Dr Johnson had facilitated the call to the OSPCA to report the accused, he was aware that staff at the clinic he worked at believed the accused should not have animals and he was aware of negative comments being made about the accused.

Dr Johnson said that he had a legal duty to report pursuant to Ontario legislation and none of the comments affected his opinion or decision to report.

In admitting Dr Johnson’s expert testimony, the court held that the fact that circumstances may give rise to some appearance of bias is not relevant to the threshold stage – the appearance of bias is not equivalent to actual bias. Further, any argument that his opinions may have been influenced subconsciously could go to the weight of his witness evidence, but did not exclude it from being admitted in the first place.

D.R. [2019] O.J. No. 4177

This was a sentencing hearing following on from a guilty finding under sections 445.1 and 445(2) Criminal Code.

For the original judgment see R v D.R. 2018 ONCJ 900

The accused had strangled the rabbit at his group home because he was in a rage about not being fed before the other residents and because he was not being let back into the house with the rabbit. He killed the rabbit in full view of the worker at whom he was angry in order to send a message that he was angry at him. The accused showed no remorse. This was a significant aggravating factor.

In mitigation, the court took into account the accused’s difficult upbringing which involved him being taken in care at the age of four as a result of family violence, neglect, and parenting capacity issues. The accused was at a critical juncture in terms of his development. He had shown some signs that his course could be changed despite his past. He enjoyed his present residence and programming and did not want to lose them and there was some hope of success.

If the accused was put in custody, he would lose all of this. On the other hand, a deferred sentence and custody order would put the accused at risk of losing what he enjoyed (in the event of breach), thereby maximising his potential for rehabilitation.

The court held that the appropriate sentence would be a deferred custody and supervision order followed by two years’ probation. Additionally, he was given a 10 year prohibition order.

R v D.R. 2018 ONCJ 900

This was a section 445.1 and 445(2) Criminal Code case concerning a 16-year-old youth who killed a rabbit at his group home. After getting into an argument with a staff member, the accused went outside, climbed into an enclosure in which rabbits were kept and removed a rabbit before strangling him/her to death.

The accused raised the common law defence of necessity, arguing that he killed the rabbit because he/she was very cold and staff would not let him inside with the rabbit to warm him/her up. In rejecting this defence, the court referred to the three requirements in R. v. Perka, [1984] 2 S.C.R. 232: there must be imminent peril; the accused must have had no reasonable legal alternative to the course of action he or she undertook; and there must be proportionality between the harm inflicted and the harm avoided.

In finding the accused guilty the court considered in detail the case law on the terms “unnecessary” and “wilfully”.

For sentencing, see D.R. [2019] O.J. No. 4177

R. v. Joy, [2019] O.J. No. 3763

The accusedduring a serious attack on his girlfriend resulting in serious bodily harm, threw the victim’s cat out of the seventh floor window causing the cat multiple acute traumatic injuries, ultimately resulting in the cat being euthanized. Mr Joy had a history of drug abuse and mental health issues and was intoxicated at the time of the attack. He was found guilty under section 445 of the Criminal Code. In passing sentence, the court reviewed the case law on animal cruelty offences including R v Heifer, [2014] O.J. No. 2984, R v Kennedy, 2017 ONSC 817 and R v Dugalic, [2018] O.J. No. 5590 (see para 40). The accused was sentenced to nine months imprisonment for the section 445 offence and given a 10 year prohibition order.

 

R v Kwissa, 2018, 161945-9-B, 171180-1, 171180-2-A BCPC

Ms. Kwissa was observed by an off duty Animal Control Officer being physically abusive towards a young pup by the name of ‘Oscar’. Kwissa was seen slamming the dog on the cement as well as “hanging” the pup to the point of all four paws being lifted off the ground. During the incident Oscar could be heard crying out and vocalizing.
Oscar was examined by a veterinarian the day following the incident and it was discovered that he had a recently fractured tooth, possibly as a result of the abuse.
Ms. Kwissa entered a guilty plea to committing an offence under the Prevention of Cruelty to Animals Act.

R v Steiner, 2014 BCPC 23804-1

Mr. Steiner lived with 40 cats in his property. One of the cats ‘Hellboy’ urinated on the couch and Mr. Steiner threw the cat against a wall. Hellboy sustained a broken leg. Mr. Steiner surrendered the cat to the BC SPCA and the cat was treated and found a new home.
Honourable Judge Hewson found Steiner to be guilty and noted aggravating factors to be: the offence committed was a serious offence against a vulnerable animal, the animal suffered a serious injury, Mr. Steiner never accepted responsibility for his conduct and Mr. Steiner has a criminal record.
Mitigating factors in this case are: Conditions of release were complied with, criminal record is dated and unrelated, Mr. Steiner made some attempt to seek vet care for Hellboy, the offence committed was not premeditated.
Mr. Steiner continually interrupted the judge which caused a brief adjournment. The judge was very close to changing Mr. Steiner’s sentence due to his lack of respect for the court.

R v Orest Pohynayko, 2012 33140-1 BCPC

Mr. Pohynayko owned horses on his property. These horses were in varying stages of medical distress and neglect which was brought to the attention of Mr. Pohynayko by the BC SPCA. Mr. Pohynayko refused to provide vet care for his horses which were in distress. Two horses were seized and adopted to new homes.

In the court proceedings, although Honourable Judge Wood implements a small fine, he is quoted as saying, “…the fine that I am going to impose does not in any way represent what I consider to be a the real serious nature of the offence. There can be nothing worse than to disregard the well-being of an animal for which you have the responsibility as the owner.”

The reason for the minimal fine was due to the additional restitution order also imposed.

R v D.R., 2018 ONCJ RY1156

D.R., a young person 16 years of age, was residing at a group home in Navan, Ontario. The defendant left his room early in the morning. He got in an argument with a staff member, went outside and removed one rabbit from an enclosure in the yard. He ran toward the group home door, but the staff member would not let him back in. The defendant then strangled the rabbit to death.

The Crown’s theory was that he was hungry and the group home was not allowing him to have an early breakfast. The defense’s theory was that he killed the rabbit because he thought it was cold. Raised the defense of necessity.

The idea that he did it because the bunny was cold was rejected. It was found that he killed the rabbit because he was in a rage about not being fed and for not being allowed back in the house with the rabbit.

Found guilty of count 2, contrary to s.445(1)(a) of the criminal code.

Found guilty of count 3, contrary to s.445.1(1)(a) of the criminal code.

Found guilty of count 4, contrary to s.430(1)(a) of the criminal code.

Reasonable doubt on Count 5 (uttering threats).

D.R. is sent for a psych analysis before sentencing (last updated 20/12/18).

R v Nikkels, 2018 BCPC 40401-1

On April 12, 2016 BC SPCA received a complaint that a seven-year-old female Teacup Chihuahua named ‘Bianca’ had been brought to a veterinary clinic suffering from a crushed skull and chest. The dog was found to be in critical distress and humanely euthanized. Kylie Nikkels had been left alone in her estranged grandmother’s house with the grandmother’s dog ‘Bianca’ the day of the incident and claimed she found the dog in that condition. A necropsy report showed the dog ‘Bianca’ had suffered blunt-force trauma to the skull.

After a lengthy SPCA investigation, Nikkels was arrested by RCMP and a trial commenced. Nikkels was found not guilty by the judge due to having reasonable doubt on whether she caused the injuries to Bianca. The judge believed that the injuries could have been caused by a number of different reasons, including the other dog in the residence.

R v Wabasca, 2014 ABPC 131341208P1

The accused entered a home uninvited with his friends. He assaulted the home owner, so her pet pit bull tries to defend her. The accused’s friends then attack the pit bull with a knife. The accused tells his friend to kill the pit bull, but the dog survives the attack. The accused does not touch the dog himself. These facts are admitted by the accused.

The accused has a prior criminal record for manslaughter.

Wabasca pleaded guilty on s.445.1 by aiding & abetting another to wound/injure/hurt an animal, as well as to unlawful entry and assault

There was a joint submission on sentence – three weeks’ incarceration for aiding and abetting to wound an animal (21 days) and 12 months’ probation following all three charges.