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).