The accused was found guilty of animal cruelty under the Criminal Code 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) after he had deposited a live puppy into a garbage bin near the entrance of a public mall after he had placed it in several tied shopping bags in 2017. A search of two properties belonging to the accused found 23 small breed puppies being confined to cages meant for rabbits, without adequate water or proper sanitation. The details of the original case can be found here.
He appealed his conviction beyond the limitation period and submitted an application to extend time, claiming that his defective legal assistance caused a miscarriage of justice by failing to advise him that a possible theory of defence could have been found in negligence as well as how strong of a case the Crown had against him.
The accused argued that had he known about the strength of the Crown’s case and been made aware of the possibility of a negligence defence, he would have submitted a guilty plea. The appeal judge found that a plea of guilt it would have given the same result as the finding of guilt handed down by the trial judge, therefore there was no prejudice to the accused (para. 117). The judge also agreed with the Crown’s submission that the accused’s use of negligence as a factor in his defence “would not have changed his evidence or rendered him less culpable” (para. 118), that the fact remained that the accused did nothing to try to save the puppy, such as call his veterinarian or take the dog to a clinic, before disposing of it (para 119).
The appeal judge declined to grant the extension, denied the accused’s claims of ineffectual legal assistance and dismissed the appeal.