R v Ikalukjuak, 2022 NUCJ 23

The accused was charged with a variety of offences for a series of events that had occurred in May 2020 and resulted in the death of his neighbour’s dog. The neighbour testified that she had seen the accused with a gun and heard several gunshots as she had taken shelter in her home with her husband and child. Police arrived to find a shattered window and bulletholes in her husband’s truck and another neighbour’s ski-doo, and her deceased dog with fresh blood on and around it.

The accused was arrested and charged with six counts ranging from firearms offences to mischief under the Criminal Code, including s.445(1)(a) for killing the dog. At trial, the accused pleaded not guilty to all charges.

The judge concluded that the accused’s actions in shooting and killing the dog were wilful, as the dog had been previously healthy and other neighbours testified that they had heard the dog yelp around the same time that gunshots were heard.

The accused was found guilty on all six counts.

Potoreyko v R, 2021 SKQB 212

The self-represented Applicant was appealing both the convictions and sentences under s. 445.1 (1)(a) of the Criminal Code and s. 4 of The Animal Protection Act, 1999 for willfully permitting to be caused unnecessary pain or suffering or injury to cattle. The cattle were suffering from hoof ailments, but the Applicant disregarded the prior warnings and advice provided by the animal protection officers and veterinarian in having the animals treated.

The Applicant was fined $2,000 on the Criminal Code offence and $5,000 for the Animal Protection Act, 1999 offence. He was also subject to an animal prohibition order of 10 years under  s. 447.1 of the Criminal Code, as well as an order that for the duration of that time he must register his address and any subsequent changes within 15 days to Animal Protection Services and submit his property to regular inspections  by Animal Protection or peace officers under s. 14 of the Animal Protection Act, 1999.

The issues argued in the appeal was:

1. Did the trial judge fail to render sufficient assistance to the self-represented accused to ensure a fair trial?

2. Did the trial judge err in convicting the Applicant under the Animal Protection Act, 1999, having already convicted him under the Criminal Code?

3. Did the trial judge err by basing her sentence on irrelevant considerations?

The appeal judge reviewed the trial’s 609 page transcript and evidence, and determined that the Applicant’s defences at trial seemed to be that only some of the cattle were in distress, which the trial judge had cautioned was not a defence, that dumb animals do not suffer, and that the animal protection authorities had treated him unfairly. None of these defences were in answer to the charges or established due diligence on his part. It was concluded that in the end had gone out of her way to assist the Applicant as a self-represented accused, and the result was a fair trial.

Regarding the convictions under both provincial and Criminal Code charges, the appeal judge applied the Kienapple principle (when one incident results in two or more convictions on offences that have sufficiently similar elements, the accused should be convicted only of the more serious offence) and concluded that both offences were substantially the same as each prohibited wilfully causing of pain, suffering or distress to an animal. Because the Crown indicated that if Kienapple were found to apply, the provincial charges would be stayed. The judge therefore allowed the appeal to the extent of quashing the conviction and entered a judicial stay on the provincial charge, which removed the $5,000 fine and that part of the order dealing with registration. The prohibition order remained since the trial judge relied on both statutes in imposing it.

As to the final issue, the judge determined that the trial judge had considered a number of factors in the decision: the number of animals involved; the warnings and advice provided by the animal protection officers and veterinarian, which the Applicant disregarded; and the suffering experienced by the affected cattle. Further, the Applicant had shown no remorse, and kept interrupting the trial judge to excuse his neglect and deny the animals’ pain and suffering, stating “I am tired of hearing this word pain and distress because we cannot communicate with cattle that way”. Although the sentence was harsh and ended the Applicant’s life in ranching, the judge determined that it was a fit sentence that was both proportionate to the gravity of the offence and to the principles of denunciation and deterrence.

 

R v Picco, 2022 NLSC 79

This is a Crown appeal of the accused’s 2021 acquittal on animal cruelty charges which related to the neglect of four beagles kept in an outdoor enclosure on his mother’s property. On March 1, 2021, the Respondent was acquitted by a judge of the Provincial Court of Newfoundland and Labrador on four charges of neglecting an animal and four charges of causing suffering to an animal under the Criminal Code.

The appeal is based on the grounds that the trial judge misapplied the law on the mens rea of the offences leading to the judge’s finding that there was a reasonable doubt whether the Respondent had “wilfully” caused suffering to the dogs and “wilfully” neglected the dogs. It is also about whether the trial judge erred in finding that the Crown did not prove beyond a reasonable doubt that the dogs were “suffering”. Note: the quotation marks here were used in the written decision.

The Respondent was charged with animal cruelty after he had contacted Beagle Paws, a volunteer-run group who rescues and rehomes beagles, to surrender the dogs. When the group arrived to find the dogs in emaciated states and living in deplorable conditions, they took the dogs for veterinary care and contacted police. Despite expert and other witness testimony at trial, the trial judge believed the Respondent’s testimony and determined that he had not acted wilfully, and that the Crown had failed to prove suffering beyond a reasonable doubt.

The appeal judge reviewed the test applied to determine mens rea as set out in R v Gerling, where it was held that when there is no evidence to the contrary the test under s. 445.1(1)(a) is objective, but when there is evidence to the contrary the crown must prove wilful conduct; the test then becomes subjective as the accused must “know the act or omission will cause an event, and be reckless as to whether the event occurs or not”. The Crown’s position was that the trial judge applied a subjective intent test in error. The judge determined that the mens rea offences under Criminal Code s 445.1(1)(a) and 446(1)(b) were subjective, and found that the trial judge had not erred in finding that the Crown had not proved beyond a reasonable doubt that the Respondent had acted wilfully in his failure to provide the dogs with adequate food and water.

The appeal judge also found that the Crown had not established that the trial judge had erred in finding that the Crown had not proven that the dogs were suffering, or that the judge had committed any error on the question of wilfulness. The judge also determined that the trial judge had not erred in their rejection of the expert’s opinion on suffering, because those findings (which had relied on photographs) were contrary to that of the examining veterinarian’s. In a review of the totality of the evidence, it was deemed insufficient to obtain a conviction.

The appeal was dismissed.

R v Geick, 2022 ABCA 150

This is an Application for s 684 Appeal Funding to be paid for by the Attorney General, the Respondent in the appeal. The Applicant was appealing his conviction on two counts of animal cruelty for beating his former common law partner’s two dogs to death. Legal Aid declined to provide coverage on the basis that the likelihood of success on the grounds set out in the Notice of Appeal is remote.

Trial details and the sentencing decision for this case can be found here, and a mistrial application is available here.

The appeal argued that it was not fair that his current counsel, or another lawyer that has agreed to take over the appeal, be required to provide legal assistance or cover disbursements on a pro bono basis. The court noted that was not one of the criteria in the legal test for an application for appointment of publicly funded counsel, which is based on whether:

a) the Appellant demonstrates insufficient means to obtain representation;

b) there is sufficient arguable merit to the appeal to justify public funding of counsel;

c) the issues transcend the interests of this particular appellant and engage broader societal concerns; and

d) the submissions to be made are sufficiently complex that the appellant would be unable to advance them without assistance.

While the court accepted that the Applicant could not afford representation, it was not satisfied that the other criterion had been met. The appeal was based on the trier of fact’s credibility on the grounds that the verdict had been unreasonable, that evidence was misunderstood and unevenly scrutinized and inadmissible bad character evidence had been introduced. Other grounds of the appeal related to the trial judge’s denial of the Applicant mistrial and fresh evidence applications, but the court found no error had been made that did not come back to Defence’s assertion that the trial judge should have believed the accused’s testimony.

The application was dismissed.

R v Battaglio, 2020 BCPC 45

The accused was charged with two counts of causing or permitting an animal to be in distress under section 24(1) of the provincial Prevention of Cruelty to Animals Act. The charges related to two alpacas, Mo and Oye Vey aka Samantha, and one rooster after the Powell River SPCA became involved in response to complaints of animal maltreatment and removed nine alpacas, one llama, and five chickens from the property.

As the charges are strict liability offences, the Crown must prove the actus reus beyond a reasonable doubt while the accused must prove that she took all reasonable care in all circumstances of the animals on a balance of probabilities under the defence of due diligence.

The Crown’s position was that the accused had permitted the alpacas to starve due to severe neglect, and emphasized that animals are vulnerable and rely on their owners to take proper care, like children or elderly who are reliant on adults for care. The rooster was in distress due to the accused’s failure to follow the SPCA notice regarding treatment recommendations. Although the other animals under the accused’s care were not found to be in distress, their care was inadequate based on their body condition which had been scored as below average.

Defence counsel admitted that based on the evidence, the court would likely find Mo to have been in distress, but argued that there should be reasonable doubt regarding the other alpaca in question had been in distress or that the accused had known they were in distress. The accused claimed that she had taken the rooster to be euthanized the day after receiving the SPCA Notice, thus doing her due diligence.

The court weighed the lengthy evidence and submissions, and determined that the accused’s testimony was not credible, the Crown had proven that the accused had knowingly permitted distress in the animals involved. The accused was found guilty.

R v Dodd, 2021 OJ 6084

The accused was found guilty of break and enter and attempted bestiality after he was caught trying to sexually assault a miniature horse. The reasons for judgment can be found here.

The sentencing judge began their decision by stating that the offences were considered to be serious and disturbing to the public, that society has little tolerance for offences that involve animal cruelty, and reiterated a passage read by the Crown: “I think it’s very appropriate to remind everyone that we do not think of pets simply as property, but recognize they are living creatures and recognize that for many people they provide companionship and comfort’ (para. 2).

The judge heard that the accused’s behaviour had a considerable and lasting impact on the miniature horse’s owners: on their lives, their sense of well-being, their business and on the miniature horse itself. It was noted that the accused had no previous record, but there were mental health issues as well as issues with substance abuse, school and employment.

Both the presentencing report and sexual behaviours report found that the accused had an interest in animal pornography, while the sexual behaviours report went further to reveal an interest in coercive situations and an interest in children. At the time of the sentencing hearing, the accused had been going to counseling, and was back at school with family support.

The Crown and defence gave a joint submission ‘designed to provide the longest possible treatment’ (para. 8) of a conditional sentence for two years followed by three years of probation. The accused also made an agreement through counsel to pay the farm owners restitution in an undisclosed amount for the losses they sustained.

Factors included in the conditional sentence: for the first year of the sentence the accused would be subject to house arrest except for purposes of school, work, treatment and counselling as approved by the supervisor, and subject to a curfew between midnight and 6:00AM daily for the second year. The accused would be mandated to continue with existing counselling as well as any other treatment program or assessments as deemed necessary by the supervisor, a no-contact order for the road and stables as well as with the owners of the miniature horse, no attendance at any farm except with another responsible adult, and to abstain from alcohol and non-prescription drugs.

An animal prohibition was also ordered for the five year period of the conditional sentence and probation, along with a Sex Offender Information Registration Act (SOIRA) order in effect for ten years under section 490.012 of the Criminal Code.

R v Dodd, 2021 OJ 6083

The accused was seen entering a privately-owned stable with rope and going into a stall containing a miniature pony and a donkey. Both Ottawa Police and the Ontario Provincial Police arrived at the scene, where they found the accused standing behind the miniature horse with his pants down and had an erection. He also had a sex toy and lubricant in his possession. The horse’s back legs had been tied, there was lubricant on the horse and the accused’s penis appeared to be ‘shiny’ (para. 8).

The accused was charged with break and enter, attempted bestiality, and loitering. The case was based on circumstantial evidence, with the burden on the Crown to prove there is no other reasonable inference than one of guilt beyond a reasonable doubt.

The Crown sought a conviction for attempted bestiality as there was no direct evidence of penetration, while the defence argued that it was a reasonable inference that the accused was there to masturbate.

The Court determined that there was ‘no other reasonable explanation beyond speculation’ and that the Crown had proven the essential elements of attempt to commit bestiality beyond a reasonable doubt. The loitering charge was dropped, and the accused was found guilty of the remaining two charges.

Reasons for sentencing are here.

R v Kenny, 2019 ONCJ 728

The accused was charged with 16 counts under the Ontario Society for the Prevention of Cruelty to Animals Act under S18.1(1) after an OSPCA investigation from September 2014  through January 2015. The investigation revealed the following issues:

  • A Long-Horned Bovine in distress: It was tethered to a pick-up truck in the middle of a field, left with filthy water and no shelter;
  • 6 ducks were confined in an area covered in feces that was several inches deep. They were not being checked on, food was not adequately provided and they did not have enough room to exercise. They were “in deplorable conditions and were not being given medical attention” (para. 90);
  • 20 chickens were left in distress, with food and water being neglected. There was little food and the water was ‘filthy’. They had frostbite on their combs and feet, with toes missing and in one case an entire foot was missing. Most chickens had signs of advanced mite infestations on their legs. The judge noted that “the photographs of these chickens were difficult to look at. The condition of their feet was simply abominable’ (para. 91);
  • The 3 dogs were in the best condition of all the animals, but were still lacking adequate shelter and left with water that had frozen over.

The accused was served with numerous notices and compliance orders which were largely ignored. The charges laid related causing the animals to be in distress, failure to provide protection from elements, failure to comply with an order under s13(5).

The proceedings lasted for over a year, during which the self-represented accused brought forward numerous motions that included alleged trespassing by the OSPCA inspectors, Charter motions relating to right to be tried within a reasonable time, unreasonable search and seizure, and ‘peaceful enjoyment of property’ under section 7 and an application for a Stay of Proceedings due to his medical condition.

The accused  did not present any evidence in his defence, only the number of motions before the court to the point of ‘interfering with the progress towards resolution’ (para. 97) and he was advised that he could not bring anymore motions without permission of the Court. One such motion was brought under  s14(1.4) which states that the owner may apply to the justice of the peace to order the return of the animal if there are no longer reasonable and probable grounds to believe the animal will be harmed.

The judge found that the animals were removed under s14(1) and that an order under 14(1.1) had not been granted, therefore the Court could not order the return of the animals under 14(1.4). Additionally, all other motions were dismissed as it was determined that the accused was the reason for most of the delays in trial, there was no illegal search or seizure as the animals were in visible distress, and section 7 of the Charter does not make any reference to property rights. The Stay of Proceedings application was also dismissed because the court provided accommodations for the accused’s medical condition and that he had failed to meet the burden of proof that the trial process posed a risk of serious impairment to his health nor that he was unable to fully participate in his defence.

The trial judge determined that the sixteen counts against Mr. Kenny were strict liability offences, where the burden of proof shifted to the accused to show that all reasonable care was taken as a defence of due diligence on a balance of probabilities. No evidence was  provided that the accused satisfied any due diligence defence. In fact, the evidence clearly illustrated that he was defiant and took little to no action towards compliance when ordered to do so, leaving his animals on his property in unacceptable conditions.

The accused was found guilty beyond a reasonable doubt of each of the sixteen charges laid against him.

R v Lund, 2016 ONCJ 858

This is a Dangerous Offender application. The accused was charged with multiple sexual offences against 14 victims ranging in age from 2 years old to adulthood after a 15 year-old girl reported him to the Ontario Provincial Police. She had been sexually involved with the accused for only three weeks, but within that time he had not only had sex with her but filmed their sex acts, encouraged her to film her 9-year-old sister nude, encouraged her to babysit even younger children so he could gain sexual access to them, and asked her to teach her 9-year-old sister to perform sexual acts upon him. The accused had also sent her sexual images involving animals. She provided text messages and images they had exchanged.

At the time of arrest, police seized five cellphones, a laptop computer and a GoPro camera that had been installed pointing at the accused’s bed. Forensic analysis of these devices revealed that he had been committing sexual offences against young girls, children and animals for almost a decade and had active plans for many more sexual crimes.

The accused was charged with 129 adult counts and 88 counts under the Youth Criminal Justice Act. He pleaded guilty to 35 counts which included one count of bestiality, communicating with a person under 16 to commit bestiality and compel to commit bestiality and two counts of counsel to commit bestiality, among several other child sexual assault and child pornography-related offences.

The judge held that the evidence as a whole had proven beyond a reasonable doubt that the accused met the multiple statutory tests for designation as a dangerous offender. He presented a risk to cause injury, pain and other harm to others in the future through failure to control his sexual impulses. There was no explicit consideration of the animal abuse charges in this discussion.

It was determined that the Crown has proved that the accused met the dangerousness criteria in section 753(1) and accordingly the judge designated him to be a Dangerous Offender.

Note: it appears that when considering designation of a dangerous offender the court may not consider animal abuse. Section 753(1)(a)(i) and (ii) of the Criminal Code only list harm to “other persons”. However, the judge did not explicitly say that animal abuse could not be considered, sections 753(1)(a)(iii) does not specify the damage must be to “a person”, and (b) lists “injury, pain or other evil to others”, which could be interpreted to include animals.

R v A.S., 2016 ONSC 6965

The accused was charged with 12 offences relating to and arising out of his alleged procurement of J.D.S. as a prostitute and having committed the offence of human trafficking between January 1, 2008 and July 12, 2014. He was also charged with injuring or endangering an animal, his dog.

The female victim claimed he viciously kicked and threw his dog. Responding police found a large dog on the balcony that one officer testified “was absolutely terrified. It was shaking.” The accused denied harming the dog, testifying that he could not have lifted up his very large dog by the neck to choke it as she testified that he did.

In a 26 page decision, very little was devoted to the animal cruelty charge apart from “While his violent and abusive demeanour and disposition would certainly suggest that he is the kind of person who would or could have been abusive to his own dog[…] there is some uncertainty to this allegation”.

The accused was acquitted of the injuring or endangering an animal charge, but convicted on one count of sexual assault, two counts of benefitting from trafficking in persons, two counts of procuring to become a prostitute, two counts of procuring to carry on prostitution, two counts of trafficking in persons, aggravated assault, assault with a weapon (a piece of broken glass), failure to comply with his recognizance and forcible confinement.