R v Zhou 2018 Sentencing

The accused was found guilty for causing or permitting an animal to be, or continue to be, in distress pursuant to section 9.1(2) of the Prevention of Cruelty to Animals Act (the “Act”). For a summary of the judgment see here.

Aggravating factors noted in this case were that the accused was given plenty of opportunity by the SPCA to comply, and she failed to understand the gaps in her knowledge that had caused the issues.

Mitigating factors were that the accused had no criminal record, her ability and education were lacking and she did not intend to hurt the animals (liability under the Act is strict).

Sentencing as follows:

  • Suspended sentence for two years
  • Prohibited from residing in a residence where domestic animals are kept for 2 years
  • 100 hours of community service
  • Required to attend and complete a type of program or counselling as deemed necessary by probation that deals with animal welfare and the proper treatment of dogs and cats
  • Prohibited from owning, possessing, caring for or having custody of any domestic animal for 7 years
  • $50 victim surcharge

R v Zhou 2018 Judgment

The accused ran a dog day care and dog breeding facility and was responsible for cats, kittens, dogs and puppies. Between August 2012 and February 2017 the BC SPCA attended the accused’s property multiple times regarding animal cruelty complaints. The accused was issued with notices on a number of occasions and failed to comply, with the result that animals were seized on multiple occasions.

In February 2016, 69 cats and 16 dogs were seized: they were found with untreated respiratory infection, ringworm and/or giardia and were kept in inadequate living conditions (heat, light, ventilation, unsanitary) and confinement. Some of the animals were found in an attic which was hot, inadequately ventilated and had no light. Two cats had to be euthanised.

The accused was charged under section 9.1(2) of the Prevention of Cruelty to Animals Act (the “Act”) for causing or permitting an animal to be, or continue to be, in distress.

The accused was found guilty. With regards the animals found in the attic, it was determined that the accused placed them there shortly after the SPCA arrived, so they had not been in the attic for more than 10 or 15 minutes. However the court held that the definition of animals in distress under the Act does not set out a minimum time that an animal must be kept in a condition for the animal to be found to be in distress. In the circumstances, the court found these animals to be in distress for these 10 or 15 minutes. The court accepted that the defence of due diligence does not require perfect standards, however it rejected this defence given the condition that the animals were found in.

For sentencing see here.

R v Florence, [2018] OJ No 5591, 2018 ONCJ 872, [2018] O.J. No. 6736 (QL)

The accused was living with his partner and the events occured when her two daughters had come to visit. The accused had been acting strangely: during one incident he was waving a knife and he had made numerous threats to seriously injure the partner and her children.  On the particular day in question, following further threats, the partner and children left the accused alone in the apartment with the dog.

The accused reported to having heard voices telling him to cleanse the dog from evil. He stabbed the dog at least three times in the throat area. The accused left the injured dog and went to have breakfast. On return he told neighbours what he had done and the police were alerted. The dog survived.

The accused pled guilty to maiming, wounding, or injuring an animal, contrary to Section 445(2) of the Criminal Code.

He was in a drug-induced psychosis at the time of the attack. He had a history of alcohol and drug abuse and had been sexually abused as a child. He had made several attempts at reform and had established a number of community programs aimed at rehabilitation. Letters of support were provided (including from the partner) attesting  to the accused’s character and the good work he had done for the community.

This decision includes a useful summary of previous decisions on sentencing for animal abuse cases. The Court considered sentencing decisions in:  R v Heifer; R v Connors; R v Alcorn; R v Wright; R v Munroe; R v Hill; and R v Tremblay). The Court held  that in the circumstances the drug-induced psychosis was a mitigating (rather than aggravating) factor. Crown sought a two year jail term less pre-sentence custody, a weapons prohibition, DNA for the DNA databank and a lifetime animal ownership ban. The accused was given six months imprisonment for the animal cruelty charge (in addition to sentences for the other offences), a probationary period of two years, a 20 year animal prohibition order, a weapons prohibition and blood taken to the DNA databank.

R v Dudar, 2013 ABPC

The accused, intoxicated, was seen by a police officer yelling and screaming at a dog that was holding on a leash. He then pulled the leash so hard that it made the dog yelp and then cower and shake uncontrollably. The accused then began to whip the dog with the leash several times, causing the dog again to yelp and cower in extreme fear. The police officer yelled at the accused and he eventually stopped. The police officer noted that in trying to get to the dog, he/she was extremely timid, shaking, appeared to be malnourished and was hiding or cowering under the police vehicle when the animal protection officers arrived.

The accused pled guilty to one count under Section 445 Criminal Code (R.S.C., 1985, c. C-46).

In mitigation, the defence pointed out that the accused had been adopted then fostered, had an unstable upbringing, and was abused by his foster parents. He had a history of alcohol abuse which he attributed to the limited contact with his family.

The Crown submitted a statement from the police officer expressing his extreme concerns for Marley the dog.

In sentencing the accused to 3 months for the section 445 offence (to run consecutive to other sentences imposed for a number of other alcohol-related crimes), the court held:

“As you may have gleaned from the sentences that I have seen or I have been imposing in relation to the other matters, when a person is disadvantaged and is committing offences as a result of having been dealt a poor deck of cards and the like, I tend to be quite sympathetic. When people whip or kick dogs though, I am not sympathetic. Because surely, when you are sober and you look at that taking advantage of the creature that cannot defend itself, the exploitation of others, which frankly you yourself have been a victim of, is not justified and is simply going to be punished because there is no explanation that justifies it. So that is why I would impose a sentence of 3 months consecutive on that.”

The accused was also placed on probation for 12 months and prohibited from owning, possessing or supervising any pet or animal for 5 years.

R. v. D.L.W., 2016 SCC 22

The accused was convicted on 13 charges of sexual offences involving his two step children. This included one count of bestiality pursuant to section 160(1) of the Criminal Code, R.S.C., 1985 C. c-46. The family dog licked the vagina of the older step-daughter, and the accused had aided and abetted this act by bringing the dog into the bedroom, applying peanut butter to the step-daughter’s vagina and then videotaping the interaction.

At trial (2013 BCSC 1327) the judge held that penetration was not an element of the offence of bestiality, and found the accused guilty (see para 300 onwards). He held that section 160 must be read in a modern context, and the offence must reflect current views of what constitutes prohibited sexual acts – sexual offences no longer require full penetrative acts to be committed.

The accused appealed to the British Columbia Court of Appeal (2015 BCCA 169) and his appeal was allowed. The modern provisions on bestiality originated from the English common law offence of buggery or sodomy, which required penetration. This offence was codified in 1869. While there had been subsequent amendments to the relevant provisions, including the separation of anal intercourse from bestiality, penetration did not cease to be an element of these offences by virtue of those amendments. The law criminalizing particular conduct must be certain and definitive. Bauman C.J.B.C dissenting.

The Crown appealed to the Supreme Court of Canada. The appeal was dismissed, the majority again referring to the common law origins of the offence which required penetration. Despite the subsequent amendments to the Criminal Code, Parliament had not further defined bestiality. The definition of bestiality had not changed but had retained the well-understood legal meaning of this ancient legal term, which included penetration. Abbela J. dissenting.

 

NOTE: Subsequent to this case the bestiality provisions of the Criminal Code were amended by parliament in June 2019 (see Bill C-84) to make clear that penetration was not a required element of the offence.

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.