R v Willard, 2023 BCPC

Statute: Criminal Code,

Section: 445(1)(a), assault and weapons possession; 810 recognizance

Province or Territory: British Columbia,

Offence: Killing,

Animal: Dog,

Type of Distress: Stabbing family dog 14 times till death

Sentence: 12-month incarceration (including 264 days credit for time served) with 60 days concurrent for assault and weapons charges; 18-months probation with conditions; 10-year animal prohibition with exception; DNA order and 10-year weapons prohibition

Legal Issue: Sentencing (Imprisonment), Lawful purpose, Sentencing (Prohibition orders), Wilfulness,

The accused, Isaac Willard, pleaded guilty to weapons possession, assault of his pregnant partner and her friend and killing the family dog Mercy by stabbing her 14 times in a domestic dispute that escalated to violence while intoxicated in March 2023. The children in the home, the eldest aged 12, were awakened by the dog’s screams, which also alerted the accused’s partner who then took the children and fled the home. The accused was found passed out due to intoxication and was arrested later. He was retained in custody from April 20, 2023.

The Crown sought a 12-month incarceral sentence followed by 18 months’ probation and a 10-year animal prohibition order for the animal cruelty charge, along with 60 days concurrent for the remaining charges, a firearms prohibition and DNA ancillary order. Defence counsel sought time-served, which would have amounted to 264 days with credit, and 18 months’ probation.

The judge began by stating:

I will say at the outset that this offence is one of a combined domestic abuse against two Indigenous women, one which is a domestic partner, and the use of the knife to kill the family dog in the presence of the children and witnessed by one, although not visually witnessed, but he certainly heard it. The circumstances are extremely egregious and extremely violent (para.7).

Aggravating factors included statutory aggravating factors of violence against an intimate partner and Indigenous women, that the accused had been subject to an 810 peace bond prohibiting him from posessing or consuming alcohol at the time of these incidents, his criminal record for violence that included a history of domestic assault and the extreme violence displayed in the killing of Mercy. Some of the mitigating factors were the early guilty plea and the information about his difficult background with an abusive alcoholic father revealed in the Gladue report.

The judge accepted victim impact statements from the accused’s partner’s sister and maternal grandmother, who described the impact of hearing Mercy being brutally killed by their father. The judge referred to Chen paragraphs 33-35, and Carr as indications that sentencing in animal cruelty cases has shifted from six months imprisonment to 12 to 18 months in duration. Although the judge found the manner in which Mercy was killed to be extreme in brutality, particularly when the lasting impact it will have on the children is considered, there was no evidence that it was connected to the domestic violence component.

Nonethless, the judge accepted the Crown’s sentencing submissions regarding incarceration due to the extremely aggravating factors which necessitated denunciation and deterrence, imposing a 12-month jail sentence with credit for time in remand. They also imposed a 10-year weapons prohibition against firearms and knife possession subject to exemptions indicated in s 113, ancillary orders for DNA, and a 10-year animal prohibition order with the exception of the dog he owned with his mother who resided with her.

R v Willard 2023 BCPC

R v Picco, 2023 NLCA 33

Statute: Criminal Code,

Section: s 445.1(1), (3); 446(1)

Province or Territory: Newfoundland and Labrador,

Offence: Abuse, Neglect,

Animal: Dog,

Type of Distress: Four beagles found emaciated and near death without adequate food, water or shelter

Sentence: Leave to appeal allowed; matter remitted for new trial at provincial court

Legal Issue: Abandoning in distress, Suffering, Suitable care, Unnecessary, Wilfulness,

This is the decision on a Crown leave to appeal to the Newfoundland Court of Appeal relating to the 2022 case where the accused, Robert Picco, was acquitted both at trial and summary conviction appeal court of wilfully causing unnecessary suffering and neglect of four beagles in his care under Criminal Code sections 445.1(1), (3) and 446(1). The summary conviction appeal decision can be found here.

The trial judge had not only concluded that the Crown had failed to prove beyond a reasonable doubt the necessary mens rea of the criminal offences, but also that the four beagles were suffering, despite accepting evidence that the dogs were found starving and near death; the appeal judge upheld the trial judge’s decision. The Crown’s position centered around whether the summary conviction appeal judge had correctly upheld the trail judge’s acquittal. The Court noted that the appeal raised questions of law with significance for the administration of justice and would also provide the opportunity to consider the interpretation of these Criminal Code offences and clarify some of their elements.

The Court found that the trial judge – and subsequently the appeal judge in upholding the original acquittal – had made several errors in their respective decisions by applying the wrong legal principles in determining the actus reus and mens rea of the offences (para. 6-7). Regarding the alleged failure of the Crown to prove that the dogs were suffering as a necessary element to s 445.1(1)(a), the Court determined that the legal test as set out in Menard was not properly applied by either judge, stating “With respect, to have accepted that the animals were “extremely” emaciated, starving, in deplorable or grave condition and near death, but not “suffering” is wrong in reason, logic and in law” (para.19).

The trial judge also erred in the reasons for determining reasonable doubt that Picco possessed the necessary mens rea for the offence under section 445.1(1)(a), with the Court stating that reasonable doubt on the section 446(1)(b) offence did not explain why there was a reasonable doubt on the section 445.1(1)(a) offence as they were different offences in need of separate analysis. Also, the trial judge failed to properly apply the test for recklessness in the section 446(1)(b) offence to the evidence she accepted, and the Court also found that the trial judge’s acceptance of both the accused’s testimony and that the actus reus of the offence had been established were contradictory. The appeal judge made further errors by affirming or refusing to interfere with the findings made by the trial judge.

The Court was satisfied that the errors made had significant bearing on the acquittals in this case and allowed the Crown’s appeal, ordering that the matter be sent back to provincial court for a new trial.

Of interest, although not raised in the appeal by either party, the Court made reference to the trial judge’s approach to the actus reus and interpretation of the word “and” in section 446(1) by comparing it to section 429(2). It stated that, in a similar manner that it would not be sensible to require that an accused prove that they acted with legal justification or excuse and colour of right as it was worded prior to amendments made in 2018 changing the word to or, it would also not make sense to treat the word “and” as conjunctive in the “food, water, shelter, and care” provision of the 446(1)(b) offence because it would defeat the purpose of it (para. 68-70).

The Court relied on paragraph 39 in Chen to further illustrate this point and concluded that “as animals under the care of humans have no control over whether they have adequate food or water or shelter or care, it follows that failing to provide any one of the four listed needs would constitute a failure in a person’s duty to adequately and suitably provide for the animal” (para. 71-72).

Link: https://canlii.ca/t/k0vks

R v Picco 2023 NCLA 33 - Crown appeal

R.L.D. v R., 2023 NBCA 70

Statute: Criminal Code,

Section: s. 160(1), 271(a), 152 and 145(3)(a)

Province or Territory: New Brunswick,

Offence: Bestiality,

Animal: Dog,

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

Sentence: Appeal against conviction and leave to appeal against sentence dismissed. Original sentence including one year consecutive for bestiality upheld

Legal Issue: Sentencing (Imprisonment),

The appellant was convicted of four offences under the Criminal Code relating to sexual assault offences committed against S.B., an eleven(11) year old, and bestiality against a dog. The appellant was a 31-year-old living with his half-sister, who is the mother of the victim. The appellant, who was on parole at the time for an undisclosed conviction, had forced the victim to take part in sexual activities and committed an act of bestiality against the family dog.

The appellant sought to appeal the conviction and sentencing under grounds that mostly around findings of fact by the trial judge, including:

An alleged ineffective representation from the lawyer who defended him
Conflicting evidence provided by the victim
Claims made that another person had committed the assaults described by victim and
The trial judge erred relying on written text exhibits.

Because the appellant failed to produce new evidence and the records did not support his claim of a poor defence at trial, the first ground of appeal was dismissed. Regarding the other grounds of appeal, the appellant claimed that no one else told the truth at trial and that the texts submitted into evidence depicted fictitious situations, even after admitting they were his. The texts corroborated the victim’s testimony and identified the victim by his initials.

The Court deemed the trial judge’s analysis to be meticulous and that it provided ample reasons on the evaluation of evidence, including the exhibits corroborating the victim’s testimony regarding the sexual abuse against the dog. The trial judge had stated that “this evidence was also amply clear and convincing with respect to the charge of bestiality against the accused” and the Court agreed (para. 10). The other grounds of appeal were dismissed.

The application for leave to appeal against sentence also dismissed. The Court can only intervene if the sentence is clearly unreasonable or the sentencing judge committed an error in principle. The appellant did not fault the trial judge for any “error” except imposing consecutive rather than concurrent sentences. The Supreme Court of Canada has stated that courts must impose higher sentences for sexual offences against children; the appellant had been charged with very serious sexual offences against a child and did not submit any evidence to demonstrate that the initial sentence was unfit.

The appeal against conviction and application for leave to appeal against sentence were both dismissed, and the trial judge’s original consecutive sentence 9 years and 45 days upheld as follows:

One year for s. 160(1) [Bestiality]
Four years for s. 271(a) [Sexual Assault]
Four years for s.152 [invitation to sexual touching]
45 days for s. 145(3)(a) [failure to comply]

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

RLD v R 2023 NBCA 70 - FR-EN starts p 11

Levy v. His Majesty the King, 2023 NSSC 23

Statute: Animal Protection Act (NS),

Section: s 21(2), 22(b)

Province or Territory: Nova Scotia,

Offence: Neglect, Other,

Animal: Dog,

Type of Distress: Failure to provide adequate medical attention for an injured puppy and inadequate conditions contrary to Regulations in the standards of care for 23 puppies and dogs

Sentence: $800 fine; Five-year animal prohibition order relating to the possession and activities in relation to dogs, with exception of up to two companion dogs

Legal Issue: Provincial case (Adequate: (providing adequate care)), Provincial case (Distress), Sentencing (Fines), Common defenses (Mistake of fact), Sentencing (Prohibition orders), Suitable care,

The appellant, Brian Levy, was initially convicted in November 2021 of violating the Standards of Care for Cats and Dogs Regulations (Regulations), contrary to s. 21(2) and s. 22(b) of the provincial Animal Protection Act. The charges came about in response to a complaint lodged with the SPCA by someone who had responded to the appellant’s online ad offering puppies for sale and noticed one puppy bleeding from the leg.

The appellant was charged after an SPCA investigation due to inadequate shelter height, tethering time and tethering length violations that permitted distress to his animals, as well as failing to provide adequate medical care to a puppy with a leg injury. Evidence given at trial indicated that the appellant was aware of the seriousness of the puppy’s injury but stated to his wife that taking the animal to a vet “would be a waste of money” (para. 29). Two veterinary experts testified that had the puppy not been seized and provided antibiotics and other intervention for the wound, the puppy could have died.

In sentencing, lower court judge noted the consequences already incurred by the appellant after the seizure of 23 puppies and dogs and the financial loss that represented, as well as the emotional loss of losing the dogs. The sentencing judge reduced the animal prohibition order from the ten years that the Crown had initially requested, believing such an order was necessary to ensure no future violations of this nature as the accused held “strong views” about the care of dogs (para. 58).

The appellant filed an appeal, stating that the trial judge erred in confirming tether length and adequate medical care evidence supplied by witnesses and experts.

The Court noted the lower court’s restraint in fines and prohibition and determined that the initial sentence served the principles of denunciation and deterrence. Appeal was dismissed and the initial sentence of five-year prohibition, as well as $800 in fines and surcharges, was upheld.

Link: https://canlii.ca/t/jv0rv

R. v. Levy 2023 NSSC

R v Schultz (No.3), 2019 ABPC 97

Statute: Animal Protection Act (AB), Charter of Rights and Freedoms,

Section: s 2(1), 12

Province or Territory: Alberta,

Offence: Neglect,

Animal: Cattle, Dog, Donkey, Other,

Type of Distress: Lack of adequate food or water to the point of starvation, lack of adequate care, protection from injurious heat or cold, shelter, ventilation and space

Sentence: $15,000 fines in total and lifetime animal prohibition order except for shared custody of one dog between them

Legal Issue: Provincial case (Adequate: (providing adequate care)), Provincial case (Disposition of animals), Provincial case (Distress), Provincial case (Due dilligence), Sentencing (Fines), Sentencing (Prohibition orders), Provincial case (Sentencing), Suffering, Suitable care,

This is the sentencing decision for the accused, Joann Schultz and Garnet Schultz, who had been charged with offences under the provincial Animal Protection Act (APA) for causing distress of the more than 100 animals that included, horses, miniature horses, ponies, miniature donkeys, cattle, llamas, and dogs that were kept on their 30 acres of land. The Alberta Society for the Prevention of Cruelty to Animals (SPCA) had received complaints from the neighbors of the property for some period of time regarding inadequate food, water, and shelter.

A peace officer from the Alberta SPCA attended the property in January 2017, first observing the state of the animals from the roadway and perimeter search of the property, from which he deduced enough evidence of severe neglect and poor conditions to engage a veterinarian to conduct a joint inspection of the property. The veterinarian agreed with the initial observations, finding that many of the animals were in such poor condition that they failed to react to strangers on their property and were literally starving to death (para. 9, 14). He gave evidence at the sentencing hearing that, as a rural veterinarian for 30 years who had seen cases of animal neglect, this was number one on the list of bad farms and were the worst conditions he had seen (para. 10).

The accused had submitted Charter applications regarding unreasonable search and seizure under section 8 and were seeking the exclusion of evidence under section 24(2) but the applications had been dismissed. The court noted that their moral culpability and degree of responsibility for the neglect the animals suffered was quite high, and that sentencing would need to reflect what was referred to as a “new paradigm” in animal welfare as set out in Reece (para. 55-57) that views animals and human beings in society together, and that sentencing should have protection of animals as its goal.

After reviewing mitigating factors such as the animals had been kept by the accused for compassionate reasons and not as means for profit, that the neglect had been driven in part by one of the accused losing employment, and that most of animals had made a full recovery in a brief period after being seized by the Alberta SPCA, the Court imposed fines and a strict animal prohibition order under s 12 of the APA.

The accused were sentenced to a total of $15,000 or jail time if defaulted and a prohibition against custody of any animal for life, with the exception of a single dog to be shared between them, conditional on written confirmation from a veterinarian provided annually to the SPCA that the dog is in good health or receiving appropriate treatment for any ailment or injury.

Link: https://canlii.ca/t/j02nq

R v Schultz 2019 ABPC - Sentence

R v Schultz (No.2), 2018 ABPC 229

Statute: Animal Protection Act (AB), Charter of Rights and Freedoms,

Section: s 2, 4; s 24(2)

Province or Territory: Alberta,

Offence: Neglect,

Animal: Cattle, Dog, Donkey, Horse, Other,

Type of Distress: Inadequate care of more than 100 animals found in stages of severe neglect on 30-acre property

Sentence: Application dismissed

Legal Issue: Provincial case (Adequate: (providing adequate care)), Charter of Rights and Freedoms, Provincial case (Disposition of animals), Provincial case (Distress), Provincial case (Procedure), Procedure (Warrantless entry/searches),

This is a followup decision to the accused’s s 8 Charter application that asserted that an Alberta SPCA peace officer trespassed and conducted a warrantless search of their property. This application was dismissed, and details of that decision can be found here.

In this application, the accused, Joann and Garnet Schultz, were requesting the exclusion of evidence under s 24(2) of the Charter as the remedy for the alleged illegal search that led to charges under s 2 of the province’s Animal Protection Act. There are more details provided in this decision on number and type of animals, as well as their condition that prompted the charges. More than 100 animals ranging from horses, llamas, ponies, dogs and miniature donkeys and horses of a variety of ages were housed on a 30-acre property owned by the accused that had some open and rudimentary outbuildings, none of which were heated.

On the day the peace officer attended the property, the temperature was -20 Celsius, and he observed a number of violations including inadequate feed or shelter for conditions, signs of improper care such as poor body conditions and physical ailments, and were contained in inadequate enclosures for the number and variety of species.

The court determined that the evidence that the accused was attempting to have dismissed pre-dated the alleged breach of the property, and this evidence was the real evidence of the charges. Additionally, it found that s. 4 of the APA would have most likely have allowed for the proper issuance of the warrant due to the observations the peace officer was able to make from the roadway.

The application to exclude evidence was dismissed.

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

R v Schultz 2018 ABPC - Charter Hearing 2

R v. Schultz, 2018 ABPC 134

Statute: Animal Protection Act (AB), Charter of Rights and Freedoms,

Section: s 2; s 8

Province or Territory: Alberta,

Offence: Neglect,

Animal: Cattle, Dog, Donkey, Horse, Other,

Type of Distress: Lack of adequate care for animals on property (details not specified)

Sentence: Application dismissed

Legal Issue: Charter of Rights and Freedoms, Provincial case (Disposition of animals), Provincial case (Procedure), Suffering, Suitable care, Unnecessary, Procedure (Warrantless entry/searches),

The accused, Joann Schultz and Garnet Schultz, were charged with Animal Protection Act (APA) offences under s. 2 after a search of their property by an Alberta SPCA peace officer found animals in distress in January 2017.

In the first of two Charter application hearings, the accused challenged the validity of the search warrant and subsequent search by filing the Notice of Charter Application (NCA) on March 28th, 2018 for a violation of section 8 of the Canadian Charter of Rights and Freedoms (Charter). At the center of the accused’s complaint was that the grounds for the warrant for the peace officer’s search were obtained illegally and in violation of a reasonable expectation of privacy, alleging that the officer was trespassing when he conducted a “warrantless perimeter search” (para. 17). A Crown Response to Charter Notice (CRCN) was submitted April 10th and heard on May 2nd, 2018 to have the accuseds’ application dismissed because of its lack of merit.

The Court found that although there may have been some merit that the perimeter search was conducted illegally, this was not part of the application. It was determined that the accused had no standing to assume any expectation of privacy as both the land and the state of the animals on it were in public view.

The application was dismissed on both counts for being facially inadequate.

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

R v Schultz 2018 ABPC - Charter Hearing 1

R v Reid, 2022 ABPC 254

Statute: Animal Protection Act (AB), Criminal Code,

Section: s. 2(1); s. 446(1)(b), 447.1

Province or Territory: Alberta,

Offence: Neglect,

Animal: Dog,

Type of Distress: Slow starvation (abandoning in distress), failing to properly care for the dog’s skin condition, and ignorance of veterinarian advice.

Sentence: Six-month Conditional Sentence Order followed by 12 months’ probation; a 15-year animal prohibition order

Legal Issue: Abandoning in distress, Sentencing (Prohibition orders), Suffering, Suitable care, Unnecessary, Wilfulness,

The accused had been found guilty of offences under s. 445.1(i)(a) and s. 446(1)(b) of the Criminal Code, as well as s. 2(1) of the Animal Protection Act for permitting his dog Seiko to slowly starve and failing to properly care for the dog’s skin-burning sensation. Following the Supreme Court decision in Kienapple, a conviction was registered on the charge under s 446(1)(b) and conditional stays were entered on the other two charges.

Trial details can be found here.

At the time of the offence, the accused was 25, had no prior criminal record and expressed regret for his behaviour, but failed to fully comprehend the gravity of his behaviour. He also worked as a chef while running a nutritional business outside his employment. Due to these factors and despite the lack of guilty plea, the sentencing judge determined that to condemn or discourage the accused’s actions, a six-month Conditional Sentence Order followed by 12 months’ probation would be adequate. The judge also ordered, under s. 447.1, a 15-year prohibition on the accused from owning, having the custody of, or controlling an animal or bird.

The judge highlighted the significance of considering the emotional distress experienced by the animal, following reasoning in Chen. While distinguishing the accused’s lack of deliberate violence toward his dog from the facts found in Chen, the judge also established that the dog’s gradual starvation and the accused’s ignorance of veterinarian advice amounted to substantial suffering (para. 24-26).

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

Sentencing - R v Reid 2022 ABPC 254

R v Weeks, 2018 ONCJ 166

Statute: Criminal Code,

Section: s 4(3)

Province or Territory: Ontario,

Offence: Other,

Animal: Fowl, Rodent,

Type of Distress: Breach of probation order to not to: own, possess, care for, or provide shelter to or in any ways act as a custodian to any animals; reside where any animals are maintained; or possess animals in any place that you own or reside.

Sentence: Not guilty of breaching probation

Legal Issue: Ownership/Care/Control, Procedure,

The accused faced a single charge of breaching her probation conditions, which encompassed restrictions on her capacity to own, possess, care for, provide shelter to, or act as a custodian for any animals. Additionally, the probation terms dictated that she must not reside where animals were maintained and should not possess animals in any place under her ownership or residence. The issue the court focused on was whether the defendant had violated her probation order by permitting her son to keep chickens and her granddaughter to house mice on her property, which she owned.

During the proceedings, the accused provided testimony affirming her understanding of the probation order. She disclosed that she had resorted to living in a nearby tent due to her family’s necessity to keep animals in her residence. She stated that her granddaughter owned the mice, while her son and his girlfriend claimed ownership of the chickens, intending to use them as a food source. Following the definition of possession outlined in the Criminal Code, the accused did not exercise possession over the mice and chickens, as she lacked the physical custody and control necessary to meet the criteria. Consequently, the main question for the court revolved around whether she had indirectly possessed the animals, contingent on the interpretation of the probation condition, specifically, the prohibition to “provide shelter to any animals.”

Notably, the court applied a narrow interpretation of the term “shelter,” grounded in daily language usage and the underlying purpose of the probation condition. “Shelter” was understood as an act of protection, typically short-term. The fundamental meaning behind the probation condition was likely to regulate the accused’s past treatment of animals. Considering this interpretation, the court ultimately determined that the accused had not indirectly sheltered the mice or chickens due to the absence of a substantial connection between her and the animals.

Consequently, the court ruled that the accused was not guilty of breaching the terms of her probation order. The case underscored the critical importance of a nuanced interpretation of probation conditions, particularly emphasizing the individual’s connection to the animals and the precise language employed within the probation terms.

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

R v Weeks 2018 ONCJ - Judgment

R v Irving, 2019 ABPC 307

Statute: Animal Protection Act (AB), Criminal Code,

Section: s. 2(1),12(2); s 446(1)(b)

Province or Territory: Alberta,

Offence: Neglect,

Animal: Dog,

Type of Distress: More than 100 dogs found in moderate to extreme distress as a result of malnourishment, dehydration, lack of access to appropriate shelter and lack of access to veterinarian care; 200 dogs seized from property

Sentence: Fines totalling $15,500 plus surcharges where applicable; a lifetime prohibition from having the custody of any dog in Alberta

Legal Issue: Provincial case (Adequate: (providing adequate care)), Provincial case (Distress), Sentencing (Prohibition orders), Sentencing (Restitution orders), Suffering, Suitable care, Unnecessary,

The accused, April Dawn Irving, surrendered a dog in immediate medical distress on December 18, 2014. Upon veterinary examination, it was determined that the dog needed to be euthanized due to her extensive medical issues that were observed to have existed for a period from at least one week to as long as multiple months. On subsequent days later in December and in January 2015, SPCA officers arrived at the property where the accused resided and witnessed over 100 dogs in extreme distress from malnourishment, dehydration, lack of shelter, and access to proper medical care. During these visits, five newborn puppies and five adult dogs were found deceased, and 200 living dogs were seized and removed from the property.

The accused pleaded guilty to counts 1 and 6, contrary to s. 2(1) of the Animal Protection Act, and pleaded not guilty to s446(1)(b) of the Criminal Code of Canada.

She had been previously convicted of a similar offence under s4 of the Animal Protection Act in Saskatchewan in 2013 when it was found that she had deprived her 82 dogs of adequate food, water and shelter. This conviction had barred the accused of having custody or control of more than two of any animal until 2023, but only within the province where the order had been issued. This highlights the importance of proceeding under the Criminal Code where possible in order for an animal prohibition order to apply nationwide.

Due to the guilty plea and that the accused had spent 128 days in pretrial custody, the Crown agreed to withdraw the Criminal Code charge and she was sentenced to pay fines totaling $15,500, with no time limit to pay, as well as a lifetime prohibition from having custody of any dog. The accused pleaded with the court not to impose the prohibition order, and if they must, to reduce it in length or allow for a number of dogs to remain in her care. The judge commented on the failure of the accused to recognize the role she had played in the suffering and distress the dogs endured:

It is always difficult to measure the depth of a person’s level of remorse and understanding, but based upon Ms. Irving’s comments, and more importantly on the lack of care she exhibited in this case, Ms. Irving seems to have an inability to consider and respond to the needs of dogs and inability or unwillingness to understand the role that she played in the distress that was caused to these dogs (para. 77).

Link: https://canlii.ca/t/j464z

R v Irving 2019 ABPC - Sentencing