R v Kyle, 2015 ONCJ 375

After a late family Thanksgiving dinner in 2014, a basset hound puppy named Charlie got into the kitchen and was attempting to reach the kitchen counter and eat some food that had been left out.  Two witnesses testified that they saw the accused fling the dog, and punch and kick her hard enough for her to yelp and put her tail between her legs. About two weeks prior to this, the accused had threatened his wife by swinging his fist toward her face, stopping at the last second before contact. The couple had become estranged earlier that year and were separated but remained living together in the same home.

These incidents were not reported to police until November 27th, 2014, when the accused was arrested and charged with assaulting his former spouse and causing unnecessary pain and suffering to the family dog by punching and kicking it contrary to sections 266 and 445.1(1)(a) of the Criminal Code. Allegedly, the couple had a disagreement on November 26th over custody of the children.

The accused denied assaulting his former spouse and the puppy, and stated that he had grabbed Charlie by her collar and swatted her on the nose to discipline her with minimal force. The defence took the position that the former spouse had invented these events in order to gain an advantage in a custody hearing for the children.

In the decision, the judge commented that in domestic abuse cases it is not unusual for a significant length of time to pass before it is reported and that it would be an error to consider the delay in report relative to the credibility of the complaint. However, there was inconsistency in evidence and the possibility of collusion between two of the witnesses.

Unsure of who was telling the truth, the judge had to abide by the principles set out by the Supreme Court in R v W(D) where there was reasonable doubt, and found the accused not guilty of both offences.

R. v. Rowe, 2015 ONCJ 596

The police and Toronto Animal Services arrived at an apartment building to investigate calls from building regarding sounds of an animal in distress. Surveillance video footage of the building lobby and elevator caught the accused violently throwing his girlfriend’s dog up six flights of stairs.

Fendi is a small white Yorkshire terrier who was diagnosed with a bilateral scleral hemorrhage caused by trauma, which subsequently healed. She was initially seized by Toronto Animal Services, but later returned to Mr. Rowe’s girlfriend.

The accused pled guilty to wilfully and without lawful excuse injuring a dog contrary to section 445(1)(a) of the Criminal Code and failing to comply with house arrest. He stated that he had thrown Fendi after having been confined with her all day due to house arrest on outstanding assault charges, she had been agitated and barking because she was unaltered and in heat, and she had attempted to run across the street after he had taken her outside to relieve herself.

In the decision, the judge noted that although the accused had no prior history of violence against animals there was extensive history of violence against people that began at age 13 with a Youth Court assault finding of guilt, which must be factored into sentencing. It was also noted that “animals, particularly very small animals such as Fendi, are extremely vulnerable creatures given in part their size, inability to articulate verbally, and the fact that they are totally subject to the control of their owners.  There is no question that they experience both fear and pain” (para. 33) and that the accused had “tossed Fendi up the stairs as if she was an inanimate object […] She suffered damage as a result of the trauma inflicted, regardless of whether it ultimately healed and was not visible to the naked eye” (para. 34).

Mitigating circumstance were that the accused had entered a plea of guilty, and  his mother and probation officer testified that he loved animals, had no past violence towards animals, and had taken care of Fendi in the past. Aggravating factors were that the accused had been released only 12 days previously on assault charge. He also had a lengthy record including 13 findings of guilt in total, with 3 of those being for aggravated assault. The judge found it troubling that there was no explanation for his violent history.

The accused was sentenced to time served for pre-trial incarceration (40 days) which was the equivalent of 60 days, followed by a 3 year probation with a no contact order prohibiting him from owning and possessing animals or being in the presence of Fendi, and a 4 year s 447.1 order prohibiting the accused from owning, having the custody or control of or residing in the same premises as an animal or a bird.

R v Jereda, 2015 SKPC 090

The accused attacked his dog, Cody, stabbing him in throat with a knife after Cody was found hiding on a neighbour’s property. Cody was saved by the neighbour, who rushed the dog to a veterinarian after the accused left him on her driveway. The accused was charged with wilfully causing pain to a dog and willfully neglecting to provide adequate care to a dog contrary to sections 445 and 446 of the Criminal Code.

As a former member of the US Army who had served on missions in Afghanistan, Korea, and Saudi Arabia, the accused had been diagnosed with PTSD and other mental health issues. Defence counsel argued that because of these mental health disorders, the accused is rendered not criminally responsible (NCR). The Crown was not arguing against an such a designation, but would leave that determination to the court.

The accused was assessed by four medical professionals who submitted reports regarding his mental state.

In one doctor’s assessment, after discussing with the accused what had led up to the attack, it was noted that he had felt that it was his responsibility to dispose of his pet that was causing problems, referring to it as having to “put down an animal” and stated that he went into “soldier mode”. The doctor also indicated concern regarding the lack of emotional connection of having attempted to kill his dog.

After reviewing the submitted reports and the evidence in context, the Court was satisfied that the accused was not acting voluntarily and was incapable of appreciating the nature and quality of his actions or that they were wrong when he inflicted the injuries on Cody.

The accused was found not criminally responsible (NCR) and was therefore required to abide by the Saskatchewan Review Board’s imposed conditions. Given the accused’s circumstances, the judge determined that it would be appropriate to conduct a disposition hearing in accordance with (then) s 742.45 of the Criminal Code, now s 672.45(1).

R v Shmyr 2015 SKPC 015

The accused had two dogs, Buddy and Snowy, that he kept outdoors.

On August 8, 2013. Buddy was taken to the veterinarian and found to have maggot infestation of head and chest area, a wound where his tail had been cut off, and was euthanized. A few days later, Snowy was taken to the vet and found to have issues with tartar build up on her teeth. She was also too thin, but was 18 and described by the vet as healthy.

The accused was charged with two counts of wilfully causing unnecessary pain due to long term neglect to a dog contrary to s. 445.1(1)(a) of the Criminal Code for each dog. In addition, he was alleged to have caused Buddy unnecessary pain by chopping off his tail after wrapping it in electrical tape. He also faced one count that he did cause or permit the animals to be or continue to be in distress contrary to s. 4 of The Animal Protection Act.

In regards to Snowy, the judge found no evidence meeting the threshold for long term neglect and no evidence that the accused had caused or allowed her to be or continue to be in distress. This was based on the fact that the veterinarian failed to link any of Snowy’s conditions to mistreatment and she was 18 years old.

Regarding Buddy, the judge was not satisfied beyond a reasonable doubt that the accused was guilty of wilfully causing unnecessary pain, either through long term neglect or by cutting off Buddy’s tail. The judge accepted the accused’s evidence that he cut Buddy’s tail accidentally while grooming him and found no evidence that the accused acted wilfully. The judge also found no evidence of long term neglect beyond a reasonable doubt.

The accused was acquitted on all counts.

R v Sun, 2015 NLPC 0113A01188

The accused was charged under the Criminal Code for uttering threats to cause death or bodily harm and causing unnecessary pain, suffering or injury to a dog by kicking it.

The accused and Ms. P had an altercation on a walking trail where they were both walking their dogs, but disagree on how the encounter unfolded. Ms. P alleges that accused was walking his dog off leash on the trail and he cursed at her and kicked her dog, saying he would “find her” and “get her”.  She ran home and called the police, found no injury on her dog and did not take it to the vet.

In her statement to police, Ms.P states that the accused was Indigenous; she believed him to Indigenous and not Chinese due to negative portrayals in media of Indigenous people and her own positive experiences with Chinese individuals. The accused stated that his dog was on leash while Ms.P’s was not, that her dog had charged and bit him and that Ms. P became angry with him for saying he was calling animal control and asking for her name and information. He denied kicking her dog or harming it in any way and that the only reason he put his foot out was to keep the other dog away from him.

The accused remained consistent in his testimony where Ms.P did not. She was combative, and made “further alarming comments about Aboriginals in contrast to Chinese people on cross-examination” [para 35].

The judge determined that Ms.P’s racist views and belief that the accused was Indigenous influenced her perception of the encounter and led her to exaggerate details of the incident, and found the accused to be a reliable and credible witness. The judge further found Ms.P to be an unreliable witness, and that there was no evidence that her dog had been injured.

The accused was acquitted on all charges.

R v Wright, 2014 ONCA 675

While operating a dog training business in Oshawa, the accused abused six dogs over a period of 17 months. At trial he was convicted of five charges of animal cruelty and one charge of neglecting an animal.

In a sentencing decision on March 27, 2014, the trial judge originally imposed a suspended sentence, giving the accused 95 days of credit for pre-sentence custody. The trial judge also made an order prohibiting him from having control or possession of an animal for five years but refused to prohibit the accused from residing with an animal so as not to punish his wife and children. The Crown appealed the sentence.

The Court of Appeal found that the previous sentence was inadequate with respect to the gravity of the specific charges, the number of convictions, the respondent’s criminal record that shows a propensity for violence and a disregard for judicial orders as the respondent was on probation when these offences occurred. It also found an abject failure to accept the criminality of his conduct and the amendments to the Criminal Code in 2008 which demonstrate added determination by Parliament to deter and punish those who commit acts of animal cruelty (para 1).

It was determined that further incarceration was required. The Court imposed a total sentence of 9 months imprisonment: the respondent had served already served 3 months therefore 6 months would remain to be served.

The Court also varied the previous prohibition order to include “residing” with any animal or bird.

Brennan v NS (Agriculture), 2017 NSCA 3

The applicant had five ponies seized from her in December 2014 due to the ponies being in distress and had made applications for judicial review to the Minister of Agriculture for their return, who had determined that she was not fit to care for the ponies. The Applicant unsuccessfully sought judicial review of that decision and appealed the judicial review application on the basis that the Minister had failed to address her submission that she had not been given an opportunity to alleviate the ponies’ distress prior to their seizure and that therefore their seizure was “illegal”. The original judicial review decision can be found here.

The Court examined the evidence from the initial seizure. Inspectors investigated the applicant’s treatment of the ponies 15 times over a 3-year period. A complaint from the applicant’s veterinarian precipitated the final inspection leading up to the seizure, where During seven ponies appeared to be underweight with five of those seven in very poor body condition with hips, spine and ribs visible despite having their winter hair coat. Five of the ponies had no food and the other two had only small scraps of hay.

The decision to seize the five ponies in the most distress but leave the other two with the applicant with directions for proper care was reviewed at the time with the applicant. This constituted reasonable effort on the part of the inspectors to obtain cooperation of the owner, which is all that is required under the Animal Protection Act in which the object and purpose is to protect animals who have been neglected by people who are charged with their care.

The Court of Appeal affirmed that the previous Court had undertaken the proper standard of review of reasonableness. The appeal was dismissed and the reviewing judge’s decision was affirmed, with costs on appeal to the respondent.

 

Brennan v NS (Agriculture), 2015 NSSC 361

In December 2014, the applicant had five ponies seized after departmental inspectors conducted an investigation and determined that the ponies were in distress. When the applicant requested a review from the Minister of Agriculture to have the ponies returned to her, it was determined that she was not fit to care for them and the request was declined.

The applicant applied for judicial review of the decision and the matter was remitted to the Deputy Minister for further consideration. The first judicial review application was granted because the initial decision did not properly consider the issues of whether the animals should be returned to the applicant and returned to the Minister for further consideration.

When it was determined again that the ponies should not be returned to the applicant, she sought judicial review of that decision.

It was determined that the authority to seize and detain animals is governed by their wellbeing and the fitness of owners to care for them. It would be unreasonable to interpret that legislation as dictating that failure to follow statutory procedure  must override the best interests and welfare of the animals. Although surprised by the Deputy Minister’s decision to ignore the seizure issue, the court could not say that his emphasis on the fitness of Ms. Brennan to care for the ponies and his conclusion not to return them was unreasonable in all of the circumstances.

The application for judicial review was dismissed. The applicant applied for another judicial review on this decision, which can be found here.

R v Geick, 2022 ABQB 92

This is a summary of the reasons for the decision on a mistrial application that Defence counsel had submitted only days before the court would begin hearing sentencing submissions regarding the accused’s conviction of killing, maiming or injuring two dogs contrary to section 445.1(1)(a) of the criminal code. The two dogs, Tyler and Sophie, belonged to the accused’s former common law partner.

Trial details can be found here.

The Defence argued for a mistrial on the basis that there was insufficient access to the Crown’s expert witnesses prior to trial and that one of them was not impartial.

At trial, the Crown called two expert witnesses. The defence had conceded that their evidence was admissible under the two-step test in White Burgess Langill Inman v Abbott and Haliburton Co. The judge qualified both as expert witnesses: both in veterinary medicine, and one in veterinary forensics.

The judge noted that the evidence of the two experts were key pieces. Both contributed their opinion of what happened to the two dogs, including what caused their deaths but more explicitly that Tyler had died from blunt force trauma to his abdominal area which had caused bruising that could be seen in x-rays.

The defence argued that the lack of access to the expert witnesses impaired their ability to make full answer and defense (citing R v T(LA)). Specifically, the defence stated that there was inconsistency between one of the expert witnesses and one of the other witnesses. Had this been known about in advance, they would have cross-examined on that point. Defence counsel also argued that one of the expert witnesses was not impartial because they had previously seen emails from the accused’s former partner accusing him of killing the dogs.

The judge, citing R v Anderson, noted that a mistrial should only be granted in the clearest of cases. It was also noted that they found the other witness not credible about the dogs injuries and the expert witness credible on that point. This discrepancy had been addressed at trial. The judge found that a mistrial was not warranted based on this argument.

Further, the judge noted that both experts understood that they were to give fair, objective, and nonpartisan evidence and that the witness gave evidence about what the cause of death was: not who caused the death. The judge also found this was an insufficient reason for a mistrial.

The application for mistrial was dismissed.

Morsani c R. 2022 QCCS 253

On April 28, 2019 two witnesses observed a woman kick a dog with excessive force several times. The dog was “pinned up against the railing” and made a yell or a screech. One witness said the dog was medium sized and looked like a pitbull. They saw the accused carrying a car seat with a baby, and returned inside an apartment with the dog, the baby, and another man.

The witnesses called the Société protectrice des animaux (SPA) who obtained a search warrant and searched the identified address. They located the accused, who lived at the apartment, with her partner, an eight-month-old baby, and a medium sized pitbull. The accused was charged with wilfully causing unnecessary pain, suffering, or injury to a dog contrary to s 445.1(1)(a) of the Criminal Code.

The trial judge “was convinced beyond a reasonable doubt that a woman had caused pain to a dog without necessity” (para. 48), and the accused was convicted.

The accused appealed the decision arguing that the verdict was unreasonable and that her identification based on the circumstantial evidence was not the only reasonable conclusion. She argued that trial judge ignored her testimony which was a general denial. The accused alleged she had no memory of the day as it was a regular day, and further argued that there were other plausible inferences other than that she had kicked the dog.

The appeal judge did not believe the appellant’s denial raised a reasonable doubt. It was determined that the trial judge had properly assessed the facts – that the accused lived at the apartment, had a dog similar to the one observed and had a baby and partner – and correctly stated the law regarding circumstantial evidence.

The appeal judge found that there were no other reasonable inferences than the one the trial judge came to, and that the conclusion that the appellant was the person who kicked the dog was reasonable.

The appeal was dismissed.