R v Tieu, 2019 ONCJ – Judgment

UPDATE: The accused appealed. The link for the summary Reasons for Judgment on Summary Conviction Appeal can be found here.

On July 11, 2017, Mr. Tieu deposited a live puppy into a garbage bin near the entrance of Lawrence Square mall after he had placed it in several tied shopping bags. A passerby going into the mall heard whimpering, found the puppy and rushed to obtain veterinary assistance. Video footage from mall security shows Tieu disposing of the bag, which he admitted to at trial. He was charged pursuant to the Criminal Code (the CCC) for causing unnecessary suffering and abandoning an animal in distress, and with permitting distress to an animal under the former Ontario Society for the Prevention of Cruelty to Animals Act (OSPCA Act).

Tieu testified that his veterinarian informed him that the dog was in poor health on July 8, 2017, and a few days later he believed the dog to have been deceased when he placed it in the bags and dropped in in the garbage. Mr. Aarabi, the accused’s veterinarian, confirmed that he had examined and vaccinated the dog in question on that date, however he stated that the dog was in good health at that time. He advised Tieu that if any complications arose, he should bring the dogs back to the clinic immediately. Mr. Aarabi also testified that he believed Tieu to be a dog-breeder, that the accused has brought over 50 dogs to his clinic for care between January and July 2017 and, after being shown photographs of the conditions in which the dogs were kept, had he known he would have reported Tieu to animal control.

Tieu owned two properties where he kept dogs. Those who attended the first property, including Police Officers, an Animal Control Officer, and an OSPCA officer, reported immense heat in the shelters, a strong smell and large presence of urine and fecal matter, inadequate water supply (water bottles designed for rodents), and inappropriate cages meant more for rabbits than the 23 small breed puppies they found there. The Toronto Animal Services Officer who attended the second property reported similar observations and testified that the conditions there did not meet city by-law, OSPCA, or the Veterinary Medical Association standards for size or sanitary conditions.

The trial judge found that Tieu’s conduct was intentional, callous, and motivated by profit (he indicated he could sell each dog for around $2000). The judge also noted that the trend in sentencing in cases involving criminal and illegal treatment of animals is towards sentences of greater gravity since the CCC amendments made in 2008.

On the charges under the CCC, Tieu received a concurrent sentence of five months in jail, three years of probation, and a 20 year prohibition order on owning, having the custody or control of or residing in the same premises as an animal.

For the OSPCA Act chargesthe judge found that a fine of $30 000 to be paid within four years most adequately served the principles of specific and general deterrence.

 

 

R v Reckman, [2020] OJ No 1884 – Judgment

UPDATE: Details of sentencing can be found here.

On October 26, 2018, members of the OSPCA and the OPP executed a search warrant of the property of Hendrik Reckman and his son Joshua, who lived on the property outside in a tent and seldom went inside the property. Many animals were found on the property, however the 290 rabbits and 279 rats found were the subject of these proceedings (the remainder of the animals were outside the residence and under the care of J). The rabbits and rats were found in unsanitary and overcrowded conditions which was described as “deplorable and absolutely horrifying” (para.53) from the evidence given by the SPCA and OPP witnesses. Both men were charged with wilful neglect and causing unnecessary pain and suffering by failing to provide suitable and adequate care.

H. Reckman was previously prohibited in April 2014 from owning or having custody or control of or residing in the same premises as an animal or bird for the rest of his life.

The accused, H. Reckman, sincerely believed that there was no neglect of the rats and rabbits, and that “the better the sanitation, the poorer the health” (para.48). Throughout his trial, he was defiant and belligerent, quoting Bible passages in lieu of answering questions regarding animal care and referred to “God’s will” or Satan’s will, or “Satan made me do it” or “Satan is acting through the SPCA, the police, and the Crown,” and that there is a “conspiracy against him” and “religious persecution” (para.51(b,d)).

J. Reckman was found guilty of the charges relating to the rabbits because they were outside the residence and in plain view of his tent. He was not found guilty of the charges relating to the rats because there was no evidence that he ever went near them.

H. Reckman was found guilty on both charges, as well as for disobeying the previous animal prohibition order from owning and gun-related charges.

 

R v Chen, 2021 ABCA 382

Court of Appeal of Alberta decision on sentencing with some precedent-setting statements marking animal cruelty as a crime of violence and that “there can be no disputing that animals are sentient beings that are capable of experiencing pain and suffering and can be victims of violence” (para. 33).

Facts: 19-year-old accused plead guilty to beating his 10 month old dog Cinnamon, claiming it was ‘discipline’. The beating lasted for approximately 20 minutes, until police arrived. Injuries to the dog included a broken paw, broken teeth, scleral hemorrhaging in one eye and blunt force trauma to right hind leg, head and abdomen. Accused plead guilty to causing unnecessary suffering to an animal, contrary to s 445.1(a) of the Criminal Code.

Initial Sentence: 90 days intermittent incarceration, plus two years probation. Based on sentencing principles of denunciation and deterrent, the sentencing judge held that a Conditional Sentence Order (CSO) would not be appropriate “given the brutality of the attack and the moral blameworthiness of the respondent” (para. 2).

First appeal: Accused appealed his sentence. On appeal the court overturned the sentencing judge’s decision, concluding that a CSO ought to have been imposed given the primary objectives of sentencing in this case, which they viewed as deterrence and rehabilitation. A one year Conditional Sentence and two years’ probation was ordered. For this first appeal see here.

This appeal: Crown was granted permission to appeal, which raised two issues:
(1) What are the sentencing principles applicable to animal cruelty cases having regard to 2008 amendments to the relevant Criminal Code provisions and jurisprudence following those amendments; and
(2) Did the appeal justice give sufficient or any deference to the decision of the sentencing judge in this case?

Held: Initial sentence of 90 days intermittent and two year probation was restored based on principles of denunciation and deterrent.

Details: The Court took note of the ‘enforcement gap’ regarding animal cruelty cases where the sentence often fails to reflect the gravity of the conduct and noted the amendments to animal cruelty provisions of Criminal Code in 2008 are an indication of the gravity of the offence and an indication that Parliament “wanted such offences to be punished more harshly” (para. 24). The objectives of the amendments are: to better reflect the serious nature of the crimes of animal cruelty, provide better protection for animals who are the victims of such crimes, and enable flexibility in sentencing.

The Court noted that in this case there was deliberate cruelty to animals which is “the most egregious form of animal abuse” (para. 22), and that animals are “sentient beings that experience pain and suffering, must be treated as living victims and not chattels. Smashing a pet through a window is not the same as smashing a window” (para. 27).  Further “An aggressive attack on an animal intended to willfully cause unnecessary pain, suffering or injury is properly characterized as violence” (para.35). Despite being a youthful first-time offender, where normally rehabilitation would be the main sentencing factor, this is not the case in scenarios of offences involving violence. In cases of animal cruelty deterrence and denunciation must be the primary sentencing factors.

The court also recognized that “Not every contravention of the animal cruelty provisions will be a crime of physical violence; crimes of neglect, depending on the circumstances, can be equally serious and sufficiently grievous to diminish, or eliminate, the likelihood of a CSO.” (para. 36).

The Court examined various aggravating and mitigating factors and found that ‘provocation’ due to the animal’s behaviour, including defecation and urination, is not a mitigating factor (para. 43), nor is the fact that the animal may have made a full recovery (para. 42). The Court also rejected the defence’s argument that the accused’s cultural norms and background should count as mitigating circumstances, stating that “while these factors might explain conduct, they cannot diminish moral culpability” (para. 46). Aggravating factors included abuse motivated by a desire to assert control or exact revenge and breach of a position of trust (para. 44).

Greater consideration should be paid to prohibition orders (s.447.1(1)(a)) and restitution orders (s.447.1(1)(b)) (neither of which were requested or considered in this case).

R v Helfer, 2021 ONCJ

Steven Helfer has a history of domestic violence and animal abuse. Following an altercation with his mother in 2014, Helfer plead guilty to criminal harassment, assault with a weapon, break & enter, and beating his dog. He was sentenced to 2-years incarceration, 3-years probation, and a 25-year prohibition from owning animals. Read more about the case on the NCPAC Case Law Database.

In Spring 2021, Helfer went back before the ONCJ in Ottawa. He plead guilty to breach of probation, breach of no contact order, resist arrest, unlawfully in a dwelling, assault, and breach of animal prohibition order (multiple rabbits and birds).

After another altercation with his mother, Helfer assaulted his mother and her boyfriend. When police arrived, they found multiple rabbits and ducks on the premises, which Helfer’s mother indicated belonged to Helfer. The health of the animals was not noted by police.

The court accepted a joint submission on sentencing, 12-months incarceration (minus 48-days pretrial credit), 18-months probations. In this situation, the Crown urged the judge to give a specific sentence for the breach of animal prohibition. Of the 12-month carceral sentence, 49-days were attributed to the breach of animal prohibition charge.

R v Robert, 2018 ONSC 545

Facts / Background: This was a hearing of a Pre-Trial Charter Application. There were two accused individuals who were facing indictment for 34 counts of inflicting pain, suffering and injuries to dogs. The two accused allegedly ran a dog fighting “business” and 31 dogs were seized from their property (including pit bulls which in the area are a banned dog breed). There were also weapons and narcotic seized.

The two Charter arguments claimed (1) a violation of s. 11(b) by unreasonable delay in the trial, and (2) a violation of s. 8 by unreasonable search as seizure. They sought (1) a stay of proceedings and (2) exclusion of evidence. Only the 11(b) claim is discussed here.

Analysis: Looking at the Jordan principles of delay, the timeline from the arrest to the last day of trial for the two accused was 946 days. The judge found some of the crown’s reasoning to be inadequate and that the delay was unjust.

Judgement: The judge found that the s. 11(b) Charter rights of the accused has been breached, and pursuant to s 24(1) of the Charter, all the charges against the two accused were stayed.

R v Vanderwater, 2017 BCPC File 169032-2-C

Vandewater was transporting a friends dog which was attached to his bicycle. While he was riding he did not notice that the dog was being dragged. The dog suffered abrasions to his paws which left bloody paw prints down the street.

Originally this offence was proceeding under the Criminal Code, however it was determined that the offence was not willful and therefore was pursued under the Prevention of Cruelty to Animals Act.

Vandewater was fined $250 payable within 6 months, and was given a 2 year prohibition from owning animals. This was a joint submission from Crown and defence.

R v Sanaee, 2016 ABCA 289

Sanaee was the owner/operator of a dog daycare & boarding facility. Witnesses testified that on two occasions, they saw the Accused using cattle prods to ‘train’ dogs. The Accused also advised customers to buy cattle prods for at-home behavioural training.

The trial judge found that although expert witness testimony was helpful, they did not need the testimony to find that electric shocks with cattle prods cause unnecessary pain and suffering to dogs. The trial judge imposed a 6-month sentence, concurrent of the two charges, and a 5-year animal prohibition.

On appeal from conviction, Sanaee argued that the trial judge improperly relied on the expert testimony, and failed to properly consider the defence of ‘colour of right.’ Both grounds failed, and the appeal was dismissed.

R v Garvin, 2021 ONCJ 496

Garvin was arrested in January 2021 for various offences, including uttering threats to his parents, possessing an illegal firearm, and killing his nine-month-old puppy named Bane. In May 2021, 22-year-old Garvin pled guilty, and an agreed statement of fact was submitted to the Court.

In April 2019, after threatening the lives of his family members, Garvin’s father co-signed a lease and Garvin moved into an apartment alone. He then acquired two dogs, Rudy  in October 2019, and Bane (named after the Batman villain) in July 2020. Garvin told his father that he intended to train both dogs to be aggressive attack dogs, and quickly began using extreme tactics to make dogs aggressive. In August 2020, Garvin became irritated that Bane was not obeying him properly, and began threatening the dog’s life.

By October 2020, neighbours could hear that Garvin was beating Bane, and called PAWS (the Ontario Provincial Animal Welfare Service). Three days later an inspector attended and left a notice on Garvin’s door. The complaint was inspected but no charges were laid. Sometime in December 2020, Garvin’s parents took Bane to a veterinary clinic, where surgery was necessary to treat a stab wound. Head trauma was also noted, but no report to authorities was made. Garvin was enraged that his parents took Bane, and continued to send threatening texts.

In January 2021, multiple neighbours called 911, police, and PAWS reporting that Bane was being severely beaten in Garvin’s apartment. All agencies refused to send immediate help. A few days later, Garvin’s mother called the police for a wellness check. Only then did authorities enter the apartment and found Bane’s deceased body in the bathroom. A necropsy revealed several injuries including significant rib bruising, fluid in Bane’s lungs, multiple skull fractures, brain and spinal bruising, a ruptured liver, and abdominal fluids.

Garvin was arrested and plead guilty to nine offences, including 2 counts of causing pain and suffering to Bane, uttering threats to kill Bane, possession of a prohibited firearm (sawed-off shotgun), criminal harassment against his parents, mischief, and breach of non-communication order. At sentencing the Crown sought a 6-year carceral sentence, and the defence sought a 2-year carceral sentence.

The judge sentenced Garvin to 5-years incarceration, which after pre-sentence custody credit was applied, leaves Garvin with 45-months incarceration remaining. Out of the 5-year sentence, 2-years were calculated for the offences related to Bane. He received 2 years for causing the death of Bane, 6 months concurrent for stabbing Bane and 6 months concurrent for uttering threats against both dogs. Garvin was also given a lifetime animal prohibition.

R v Dennison, 2021 ONCJ

Corey Dennison had been evicted from his apartment. When cleaners entered, they found a flash drive full of homemade videos of cat torture. They gave the flashdrive to police.

Dennison, a 31 year-old resident of Cornwall, Ontario, plead guilty to one count related to the abuse of 16 cats. Dennison searched and bought kittens online through apps such as Kijiji, recorded himself torturing the kittens (including breathlessness), killed the kittens afterward, and disposed of the bodies. Dennison made approximately 200 animal crush porn videos, and took sexual pleasure from making and watching them. During the proceedings, he was diagnosed with zoosadism, where an individual gets sexually aroused by cruelty to animals.

At sentencing, the Crown sought a carceral sentence of 18-month to 2-years. The Judge sentenced Dennison to 2-years less a day (20 months after credit applied), 3-years probation, and a lifetime animal prohibition.

R v Dondale, 2017 SKPC 58

The accused, Dondale (“D”), raised chickens, cattle, and horses on his property in the Rural Municipality of Torch River. The Saskatchewan SPCA (SSPCA) received a complaint that D was not adequately caring for his animals. The severe neglect included: inadequate food, water, or shelter; inappropriate ventilation, heating, lighting, and ease of cleaning; dangerous levels of Ammonia; and lack of veterinary care.

Over 2 years, one animal protection officer and a veterinarian attended the property on 6 occasions. D did not follow any of the SPCA recommendations or directives, and was eventually charged with 2 counts of causing distress under section 4 of The Animal Protection Act and 2 counts of causing unnecessary pain, or suffering, under section 445.1(1)(a) of the Criminal Code.

Issue of Crown Election: The defence disputed the charges, claiming that the D cannot be found guilty of any charge that fell outside the six-month charging timeframe. However, the judge quickly dismissed this argument, as all charges cited dates within the six-month window.

The Court heard from three Crown witnesses and found them to be credible. After reviewing the years of neglect, D was found guilty on all four charges. Accused convicted.