R v Picco, 2022 NLSC 79

This is a Crown appeal of the accused’s 2021 acquittal on animal cruelty charges which related to the neglect of four beagles kept in an outdoor enclosure on his mother’s property. On March 1, 2021, the Respondent was acquitted by a judge of the Provincial Court of Newfoundland and Labrador on four charges of neglecting an animal and four charges of causing suffering to an animal under the Criminal Code.

The appeal is based on the grounds that the trial judge misapplied the law on the mens rea of the offences leading to the judge’s finding that there was a reasonable doubt whether the Respondent had “wilfully” caused suffering to the dogs and “wilfully” neglected the dogs. It is also about whether the trial judge erred in finding that the Crown did not prove beyond a reasonable doubt that the dogs were “suffering”. Note: the quotation marks here were used in the written decision.

The Respondent was charged with animal cruelty after he had contacted Beagle Paws, a volunteer-run group who rescues and rehomes beagles, to surrender the dogs. When the group arrived to find the dogs in emaciated states and living in deplorable conditions, they took the dogs for veterinary care and contacted police. Despite expert and other witness testimony at trial, the trial judge believed the Respondent’s testimony and determined that he had not acted wilfully, and that the Crown had failed to prove suffering beyond a reasonable doubt.

The appeal judge reviewed the test applied to determine mens rea as set out in R v Gerling, where it was held that when there is no evidence to the contrary the test under s. 445.1(1)(a) is objective, but 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 Crown’s position was that the trial judge applied a subjective intent test in error. The judge determined that the mens rea offences under Criminal Code s 445.1(1)(a) and 446(1)(b) were subjective, and found that the trial judge had not erred in finding that the Crown had not proved beyond a reasonable doubt that the Respondent had acted wilfully in his failure to provide the dogs with adequate food and water.

The appeal judge also found that the Crown had not established that the trial judge had erred in finding that the Crown had not proven that the dogs were suffering, or that the judge had committed any error on the question of wilfulness. The judge also determined that the trial judge had not erred in their rejection of the expert’s opinion on suffering, because those findings (which had relied on photographs) were contrary to that of the examining veterinarian’s. In a review of the totality of the evidence, it was deemed insufficient to obtain a conviction.

The appeal was dismissed.