R. v. Pundick, 2015, ABPC 140099458P1

The accused was witnessed, in an intoxicated state, with blood on his person, dragging a cat that was secured in a harness that was too tight. The accused had been trying to walk the cat and he claimed the cat had attacked him (he was found to have had small puncture wounds in addition to the blood). He dragged the cat approximately 80 feet. Several witnesses saw this incident and described the cat as in distress, having blood on its fur, and in shock and scared. The cat could not stand up or walk.

Upon examination by a vet, the cat was found to have sustained bleeding from its paws (leading to the cat having trouble walking) and was in extreme distress from being dragged. The cat needed treatment but did recover after approximately four to five weeks. The accused was found guilty.

Aggravating factors were the trust-like relationship and the prolonged period of suffering. A review of the cases also showed that incarceration was warranted.  A pre-sentence report was conducted; the accused has significant difficulties with alcohol abuse.

R v McKay, 2012 BCPC 4076-1

The accused and his wife separated, leaving him with the care of their dog. The court found he was guilty of starving the dog to death over four to eight weeks: it was found frozen one week after its death in the doghouse outside and weighed one half its normal weight. The accused claims someone stole the dog for three weeks, starved it and then returned it. The court did not believe his evidence. Expert evidence showed there was no body fat anywhere on the dog when it died.

The Crown argued for 90 days in jail and a 10 year prohibition on possessing or owning animals.  The accused was self-represented and argued for a fine and community service. He agreed to the 10 year prohibition.

The court considered the following mitigating circumstances: the accused was young (32); he was employed with good prospects for the future; minimal and dated criminal record; currently in a family dispute in family court. The guilty plea was not a mitigating factor because it was made the day of trial.

The court considered the following aggravating circumstances: callous disregard for the dog; and length of suffering (“day after day for weeks on end show a level of callousness not often seen”).

The court refused to consider a conditional sentence given the circumstances and ordered a 90 sentence as the Crown requested to be served intermittently. This was to recognize that he was well employed during the week with a spouse and child to support.

R v Mader, 2016 MBPC

Ms. Mader, in May, called the city requesting a dog catcher be sent to her property so that he could euthanize her dog. The dog catcher arrives, and states that the condition of the dog is unlike anything he had ever seen in his 20 years. The dog catcher crudely euthanized the dog by bringing it to a dump and shooting it in the head. After this point the dog catcher contacted the RCMP who collected the body to have a necropsy performed to learn the extent of the injuries.

RCMP took statements from Ms. Mader as well as from some neighbors. Ms. Mader indicated in her statement that the dog had been hers since it was a puppy, that she was the owner of the property, and that she left the dog chained in the back yard. She further indicated that despite her being in full control of the animal, she never once took steps to care for the animal. She admitted to never having fed the animal and instead relying on random acts of passerby’s, specifically a ‘friend’ named Carlo.

Carlo stated that although he would occasionally bring scraps to the dog because he liked the dog very much, no formal agreement between him and the defendant was ever made. Further, Carlo indicated he would often go away for weeks at a time which suggests that the dog would be left starving during these occasions

Ms. Mader was brought in on several counts, however, the transcript provided only attests to one count as there was a plea bargain struck between the Crown and the defence which permitted the Crown to stay the charges on the other counts and proceed summarily on the single count under S.446(1)(a) of the Criminal Code

Ms. Mader has no previous criminal record, was 55 years of age in 2015 (born in 1960), and has some Gladue mitigating factors to consider during sentencing, notably: she is a member of the Bunibonibee Cree, she experienced neglect as a child, she experienced a childhood directly impacted by alcohol abuse, and she was placed into foster care at a very young age.

R v Komarnicki, 1991 CarswellAlta 670, 116 A.R. 268

Mr. Komarnicki had 17 cats and 2 dogs residing in his home. A complaint was investigated and the animals were found to be ill, not receiving proper care, and living in unfit conditions. The accused took steps to remedy the situation but then allowed the situation to deteriorate. Another complaint was made later and the animals were found to be living in the same conditions.

The animals were then seized and examined by a vet who found the animals to be emaciated, had various infections and, overall, were quite neglected. The accused admitted to allowing the animals to live in distress but argued that a medical condition he had (wherein he couldn’t lift anything over 10 pounds) caused the situation in which the animals were found.

This was not accepted by the Court. The offence was found to be one of strict liability, so proof of the prohibited act was all that was needed together with a lack of proof that he took reasonable care. Both of these elements were proven in this case and the accused was found guilty.

R v Helfer, 2014 ONCJ

Mr. Helfer pleaded guilty to criminal harassment, two counts of assault with a weapon, one count of break and enter, and one count of maiming a dog. .

Before the events culminating in criminal charges, Helfer was in a verbal altercation with his mother; in whose property he had been living that resulted in the police being called. Helfer returned later in the day after being told to leave, demanded to be let in, with him banging on the front door, saying that he wanted to get his dog, which was inside the residence.

Helfer retrieved the dog without going into the residence. He then beat the dog viciously with multiple implements. The end result was that the dog was dumped in a nearby dumpster with a wheelbarrow, with the dog barely clinging to life.

The key issue at trial was the length of sentence. Defence asked for three months, the crown for three years. Complicating this issue was that the Criminal Code in 2008 was amended, so that offences concerning cruelty against animals became indictable offences, which the crown said was a signal from parliament that longer sentences should be given to those who abuse animals.

In support of its arguments, the Crown submitted a petition by concerned residents who asked for the maximum possible sentence under the Criminal Code. Crown also submitted that when parliament amends a law to provide for a greater sentence, the court must act accordingly with a change in sentence. Crown also submitted that denunciation and deterrence must be emphasized here.

The judge imposed a two year sentence. Aggravating factors were Helfer’s harassment of his mother, and that he returned to the residence despite the fact police were called earlier in the day; the sheer violence towards the dog, the breach of trust aspect (Helfer was the dog’s owner), and the fact this was a senseless attack perpetuated by Helfer, in order to get back at his mother. Helfer’s prior criminal record for violent offences, and the impact on the community members who saw the attack and had to deal with the aftermath at the OPSCA.

Mitigating factors for sentencing were Helfer’s guilty plea, his expression of remorse, and the fact that he cooperated with the psych assessment, his youth (he is 24), the fact that his adult criminal conviction was five years in the past, his cognitive difficulties (ADHD and learning disability), his ability to feel some sympathy towards other individuals, and the fact that this was a spontaneous outburst of violence, rather than a calculated attack (the judge was of the belief the former was easier to manage).

The judge accepted the Crown’s argument that after the amending of the Criminal Code, those who commit animal cruelty will face harsher sentences than in the past. However he largely disregarded the petition, saying that these have no place in Canadian courtrooms.

R v Haughton, 2013 BCSC 1683

Ms. Haughton appeals the decision as cited R v Haughton, 2012 BCPC 505.

Ms. Haughton argues that there was no analysis done regarding her duty as the owner, and states that she did what was reasonable in her absence by leaving the dogs in her son’s care. The trial judge failed to address her obligations as the owner as compared to the obligations of a custodian of the animals.

Haughton was found not guilty on Count 2. The judge found that the trial judge failed to differentiate between the duties of an owner and those of a custodian as set out in s.446(1)(b) of the Code. Ms. Haughton was neither wilful nor reckless as set out in s. 429(1) of the Code in her decision to trust the animals to her son.

Further Ms. Haughton was acquitted of her s.3 conviction as well. The Crown conceded that a conviction was wrongfully entered with regard to this count because the verdict depended upon a definition of “duress” that was not in force at the time of the offence.

 

R v Gerling, 2016 BCCA 72, 128 WCB (2d) 533.

Gerling operated a dog breeding facility in the Fraser Valley. In September 2010, 14 dogs were found in poor condition and seized by an officer of the BCSCPA, in accordance with s. 11 (a) of the Prevention of Cruelty to Animals Act.

After the seizure the animals were inspected by a veterinarian, who found serious health problems which had been left festering for at least a few months. Gerling was later convicted at trial of willfully causing unnecessary pain, suffering, or injury to an animal, and failure to provide suitable and adequate food, water, shelter or care, contrary to s. 445.1(1)(a) and 446(1) (b) of the Criminal Code.

Gerling appealed the conviction. Issues on appeal were whether animals could be seized without giving owners a chance to relieve their distress, and how the mens rea is to be applied for the Criminal Code sections.

Appeal judge concluded that the Prevention of Cruelty to Animals Act gives officers discretion to seize animals, without giving recourse to the owner to relieve the animal’s distress if the owner “had not taken and would not be able to take the steps necessary to relieve their distress” ( Ulmer Test). Judge concluded there was ample reason for the officer to exercise her discretion here as there was a long history of SPCA orders regarding Mr. Gerling’s improper standard of animal care.

Judge also held that when there is no evidence to the contrary the test under s. 445.1.1.a is objective. 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 latter situation is when s. 429.1 of the code applies.

Judge found there was no contrary evidence in this case, and there was ample evidence that Gerling caused the suffering of the animals under his care, and he has neglected the care of these animals for a long time. As such Gerling could be convicted under the relevant Criminal Code sections.

R v L. (D.), 1999 CarswellAlta 414

Youth accused on two charges; one of killing, maiming, poisoning or injuring a cat contrary to s. 445(a) of the Criminal Code and one of causing unnecessary pain, suffering or injury to a cat contrary to s. 446(1)(a) of the Criminal Code. Two sisters adopted a stray cat but found they could not afford to keep it and decided they needed to get rid of it. They asked two friends, D.L. and C.A., to drop it off or get rid of it. One of the sisters got the cat and gave it to C.A. who began to strangle it in the kitchen. D.L went outside after the cat was strangled. C.A. then hit the cat’s head three times against the glass patio doors and then put the cat on the ground and kneeled on its back, causing bones to break. C.A. then opened the back door, grabbed the cat by the neck, yelled “batter’s up” and threw the cat through the air towards causing it to flip three times in the air. D.L. had a broken hockey stick which he hit the cat with in midair. The cat fell from the air and D.L. hit the cat in the head four to six times with the hockey stick. C.A. and D.L. then put the cat’s body in a plastic bag and took it to a nearby bird sanctuary and threw it over a fence. They returned to the house and displayed excitement over the killing.

Legal discussion and analysis of parties to an offence, “maiming”, “willful” and “lawful excuse” of an owner’s authority to order the killing of their animal in relation to s.445(a). Further analysis of “unnecessary pain and suffering” in relation to s. 446(1)(a).

The accused was acquitted of s.445(a), convicted of s. 446(1)(a).

 

R v Cousine, 2016 BCPC

A complaint was investigated by the SPCA on June 1st, 2016 about an injured dog that had not received veterinary treatment. The dog belonged to Mr. Cousine. Mr. Cousine had taken his dog Tony, to the veterinarian clinic after claiming the dog had been hit by a car. The vet confirmed that the right front leg was broken and advised that the dog needed surgery within a few days. Mr. Cousine did not bring the dog back for further care or surgery.

Mr. Cousine alleged that he could not afford the surgery and that is why he did not bring the dog back. The dog was seized after a search warrant was executed by the RCMP and the SPCA. The dog had to have his leg amputated.

Mr. Cousine entered a plea of guilty to Count 1 and Crown entered a stay of proceedings on Counts 2 and 3 (*counts not specified in transcript).

R v Chalmers, 2013 ABPC 110779394P1

The accused pleaded guilty at the beginning of trial to one count of wounding or maiming an animal contrary to the Criminal Code. The accused’s partner came home to find the drywall (in the home that she shared with the accused and their pets) dented in three places in the shape of a cat. The accused had thrown Khonsu (their cat) against the wall three times leaving blood on the drywall around the second two dents. Khonsu was lying nearby, with blood covering his head and ears. The cat was lifeless and not moving. The accused was passed out in a chair nearby. The partner took the cat to the veterinarian who found multiple injuries including a fractured tooth, skull and leg. Surgery was required.

The accused went to trial on a number of domestic violence counts and a second wounding or maiming an animal, involving a second cat, Aradia. The following facts were testified to by the complainant but may or may not be the findings of fact of the judge as the transcript of that day is missing. With respect to the count involving Aradia, she jumped on the counter and knocked things off during the night. The accused found the cat and punished her by grabbing her by the scruff of her neck and holding her under the running water from the sink faucet for 30 seconds. She could not breathe and her eyes were bugging out of her head. The accused then pushed the cat on to the cement counter and threw her 20 feet to the couch. She was unconscious at this point but came to and ran behind the couch. The female owner went to see if Aradia was okay and found she couldn’t move her right front leg. They took her to the vet but made up a story as to how she received her injuries. She had surgery on the leg to repair the break and it took three to four months to heal.

The accused was convicted on one count of wounding or maiming an animal contrary to the Criminal Code. He was acquitted of all of the domestic violence related counts. It appears that the count involving Khonsu was amended to include Aradia midway through trial and the accused pleaded guilty to those facts as well.

The transcript of the second day of trial is missing so there is no information on what the issues were at trial and what findings of facts were made by the Judge.