R v Clarke, [2010] N.J. No. 310

Statute: Criminal Code,
Section: s 266
Province or Territory: Newfoundland and Labrador,
Offence: Other,
Animal: Dog,
Type of Distress: Assault as a defence of intentional dog attack
Sentence: Accused acquitted
Legal Issue: Common defenses (Legal excuse), Ownership/Care/Control,

The accused was charged with assault after responding with force when the complainant had attempted to use a dog as a weapon against her. The accused and the complainant were once friends, but their relationship had deteriorated and there had been conflicts online. The two had encountered each other in a parking lot where the accused initially challenged the complainant to a fight, which they declined. The complainant then opened the back door of her friend’s car and called out to her friend’s dog, Simba, to come out.

The Court applied the reasoning used in R v McLeod, a case that ruled that a dog can constitute a weapon and took into account the dog’s size and breed in determining what amount of force would be proportionate in defence.

The Court determined that the complainant was threatening the accused with the application of force through the dog and that, considering the size and pit-bull type breed, the accused had a reasonable basis to fear for her safety. The Court also ruled that the amount of force the accused used in self defence was proportional to the threat posed by the complainant’s attempts to get the dog to attack her. In addition, it found that the Crown had failed both to prove the commission of the offence beyond a reasonable doubt and that the application of force by the accused was disproportionate or for any other purpose than
to prevent the assault.

The court ultimately acquitted the accused on the basis that the force she used was in self defence and proportional to the threat that was posed to her.

https://canlii.ca/t/2csqd
R. v. Clarke [2010] N.J. No. 310

R v Snyder, 1996 NSCA 266

Statute: Criminal Code,
Section: s 267.1
Province or Territory: Nova Scotia,
Offence: Other,
Animal: Dog,
Type of Distress: Use of dog as weapon in self defence
Sentence: Appeal allowed; conviction set aside and acquittal entered
Legal Issue: Encourage/Aid/Assist, Ownership/Care/Control,

This an appeal from a conviction of an assault using a weapon, wherein the weapon was the appellant’s dog. At the time, the appellant was being verbally threatened and harassed by an individual, which led to the dog attack.

The appellant allegedly encouraged the dog to attack and bite the complainant in self defence. The trial judge who rejected the self defence claim failed to take into account the history between the accused and complainant and determined that more force than necessary was used.

The issue is whether the dog can be a weapon under the Criminal Code which was not addressed in trial. Whether the appellant had the means of controlling the dog or ability to form an intent to apply force using the dog was also not addressed in trial.

The appeal was allowed, the conviction was set aside and an acquittal was entered.

https://canlii.ca/t/1mmj5
R. v. Snyder 1996 N.S.J. No. 477

Franco v Franco, 2024 ONSC 6436

Statute: Family Law Act (ON),
Section: s 10
Province or Territory: Ontario,
Offence: Other,
Animal: Dog,
Type of Distress: Pet custody dispute between husband and wife
Sentence: Wife awarded ownership of Meg the 10-year-old Yorkshire Terrier
Legal Issue: Ownership/Care/Control,

This is a motion regarding ownership of a ten-year-old Yorkshire Terrier named Meg, at dispute after a relationship breakdown between the two parties who were married. The wife is seeking a declaration that she owns Meg, and for an order requiring the husband to immediately return Meg to her. In the alternative, she seeks an order that she have possession of Meg until further agreement of the parties or court order or that on a temporary basis, the parties share possession of Meg on an alternating week basis, with the exchange to take place on Mondays in conjunction with the parenting schedule with their daughter. The husband is seeking the same relief for himself.

In submissions, the wife claimed that the husband had purchased Meg for her as a gift, while the husband claims that he had wanted a dog for a long time, and that he managed the negotiations with the breeder, chose Meg from the litter, and paid for her therefore, he owns Meg. He acknowledges that the wife loves the dog but claims that her love for Meg is not connected to ownership. They have a nine-year-old daughter who resides equally between the two parties, and it was decided after they separated that it was in the best interests of their daughter to spend as much time as possible with the dog, so they agreed to share possession of Meg on an alternate week basis so that she spent the weekends with their daughter. After an attempt at reconciliation, the parties separated again and resumed sharing care of Meg until October 2023, when Meg was left in the exclusive care of the wife while the husband travelled and then moved residences. The husband did not retrieve Meg until the end of October, and on November 20, 2023, he advised the wife that he would not be returning Meg to her, which the wife states was a unilateral decision and made without notice to her. The husband has had Meg exclusively since then.

While acknowledging that “there may be a temptation to determine what party would be best able to look after a household pet, given that people who have pets generally think of them as family members, the developed law is that a dog is to be treated as property” (para. 28), the Court followed the factors set out in Coates v Dickinson, including who purchased, raised and cared for the animal as well as what happened to the animal after the relationship changed (para. 31). Given that there was conflicting evidence regarding which party provided primary care for Meg, there was no explanation from the husband as to why he denied the wife any time with or access to the dog since November 2023, despite her numerous attempts to come to some agreement around time-sharing, which left the Court concerned that further conflict would arise between the parties that would not be in their daughter’s best interests if ownership was not determined. There was also evidence that the husband had been taking steps to undermine the wife’s claim to ownership, even with her submission of many documents attesting to it (paras. 40-44).

The Court determined that based on the evidence provided, Meg’s ownership belonged with the wife.

 

https://canlii.ca/t/k813b
Franco v Franco 2024 ONSC 6436

Peng v Houston, 2024 BCCRT 505

Statute: Family Law Act (BC),
Section: n/a
Province or Territory: British Columbia,
Offence: Other,
Animal: Dog,
Type of Distress: Pet custody dispute in civil tribunal
Sentence: Respondent ordered to return Peanut to the applicant within 30 days
Legal Issue: Ownership/Care/Control,

This is a civil dispute relating to custody of a dog named Peanut. The two parties were involved in a romantic relationship when they bought Peanut, and after they separated and the respondent moved out, the parties agreed to a time-sharing arrangement. The arrangement broke down after several months, and the applicant asserts that since late October 2022, the respondent has withheld Peanut from her.

The applicant is asking for an order for “full custody” of Peanut in exchange for a buyout equivalent to the $875 the respondent paid toward Peanut’s purchase price. The respondent denies the applicant’s claims, stating that the applicant kept trying to unreasonably change the parties’ time-sharing arrangement, so they decided to keep Peanut until the parties had “a legal agreement in place”. Because the Family Law Act only applies to those who are legally married or in a relationship akin to marriage for at least two years, the Civil Tribunal had jurisdiction over this matter because they had been together for less than two years.

The issues at dispute were:

    a. Who owns Peanut? and
    b. If the parties jointly own Peanut, should sole ownership of Peanut be granted to one of the parties?

Although the tribunal acknowledged that the courts recognized the unique place pets occupy in peoples’ lives (para. 16), it affirmed that pets fall under personal property, making it question of who owns the pet rather than who should have “custody” of them. It also upheld the Family Law Act changes in early 2024, where the willingness and ability of each spouse to care for the pet’s basic needs, cruelty or threat of cruelty towards a pet, family violence, and other factors must be considered although the Act did not apply to this dispute, but because those changes reflect developments around the common law “best interests of the dog assessment” and courts that have increasingly considered animal welfare and the animal’s needs in considering ownership claims (para. 18).

After examining Peanut’s best interests and finding no evidence or allegations of animal cruelty or threat of cruelty by either party, the tribunal determined that Peanut was jointly owned. It also took into account who had paid and cared for Peanut, as well as the human-animal bond between the applicant’s adult daughter, and found that the respondent’s behaviour in withholding possession of Peanut of significant importance and indicates that they were unwilling or unable to consider whether their actions were in Peanut’s best interests, given the existing bonds between Peanut and the applicant’s family members (para. 28).

Weighing the evidence, the tribunal awarded ownership to the applicant and ordered that the respondent return Peanut to her within 30 days

https://canlii.ca/t/k509h
Peng v Houston 2024 BCCRT 505

R v Drury, 2024 ABCA 368

Statute: Criminal Code,
Section: s 153(1), 163.1(4)
Province or Territory: Alberta,
Offence: Other,
Animal: Dog,
Type of Distress: Sexual exploitation of a 16-year-old girl who filmed herself engaging in sexually-related conduct with his dog at his encouragement
Sentence: Appeal dismissed; conviction of sexual exploitation and possession of child pornography upheld
Legal Issue: Possession of animal sexual abuse exploitation material ("pornography"),

This is an appeal case where the accused was charged with sexual exploitation and possession of child pornography in relation to a young girl he had first met when she was eight years old, as he was a friend of her mother. He began texting her when he was 38 and she was 15.

The texting began as exchanges about music, his feelings about his marriage, and the victim’s mental health issues before progressing to nude photos. “Wanting to make the appellant happy, the complainant also sent the appellant a video depicting the appellant’s dog licking the complainant’s vagina and breasts because the appellant described bestiality as a “kink” of his. The complainant sent the appellant nude photos depicting the complainant’s fresh injuries after engaging in self-harm as well” (para. 2). Their relationship became sexual after the victim turned 16, which continued for several months.

A year after the relationship ended, the victim’s mother found out what happened between them and reported it to police. At trial, the victim testified that the video featuring the accused’s dog was filmed because the appellant mentioned his particular “kink” and she wanted to make him happy, as well as him sexualizing the her self harm where he acted like it was pretty and encouraged her “not exactly to do it more but not to stop”.

The issue on appeal regarding the exploitation charge was whether the accused had been a position of trust or authority over the victim and, with respect to the pornography charge, the accused argued that he had not stored or controlled the material the victim had sent, therefore he was not in possession as defined by the Supreme Court decision R v Morelli, 2010 SCC 8 at para 66. 

The trial judge had concluded that the accused was in a position of trust in relation to the victim and found him guilty of sexual exploitation and rejected the inference that the accused had immediately deleted the nude photos and video of the complainant; he was also found guilty of possessing child pornography.

The Court agreed with the trial judge’s findings that, in addition to their age difference, the accused’s relationship with the victim’s family supported the conclusion that he had been in a position of trust or authority over the victim (para. 15), and that the inference that the child pornography remained on the accused’s device to be used in whatever manner and to be viewed whenever he wished to satisfy his sexual interest, subject to any automatic deletion, was the only reasonable inference based on the totality of the evidence (para. 20). In addition, the Court rejected the accused’s suggestion that a reasonable alternative inference was that he stopped himself from viewing the nude photos and videos sent by the complainant upon receipt and immediately deleted them.

The Court concluded that the trial judge made no reversible errors and the appeal was dismissed.

https://canlii.ca/t/k7xkk
R v Drury 2024 ABCA 368

R v Moss, 2024 ONCJ 471

Statute: Criminal Code,
Section: s 163.1
Province or Territory: Ontario,
Offence: Other,
Animal: Unknown,
Type of Distress: Online child sexual exploitation and abuse; child pornography collection that includes bestiality
Sentence: Seven years imprisonment plus ancillary orders
Legal Issue: Possession of animal sexual abuse exploitation material ("pornography"),

This is a sentencing case on the possessing and sharing of child pornography, which revealed that the accused has been engaged in online child sexual exploitation with a 12-year old girl from the Philippines. The investigation began when he shared child pornography over the internet using the Facebook Messenger Application with another unidentified user which involved videos of prepubescent children with their genitals visible and in two videos, very young children were engaged in sexual intercourse with adults. A search warrant was issued and executed, where police located three devices containing a total of 2002 unique images and 496 unique videos featuring child sexual exploitation material. It was then that it was discovered that the accused was in an online sexual “relationship” with young victim who resided in the Philippines with her family; Hundreds of images and videos of the victim and her family, with evidence that he had bought them food, cell phones, bedding, and clothing, often at the request of the family including the victim. The accused would then incite the victim to remove her clothing and instruct her to engage in masturbation and other sex acts during video chats.

The accused told the pre-sentencing report writer that he was in a long-term relationship with the victim from 2016-2019 that ended when his partner found out he was using the internet to “build relationships with the victim of the offence and her family” (para. 15). His pre-sentence report detailed that he is a 41-year-old man with no criminal record or substance use issues, an unremarkable childhood but has little contact with his family and blames his lack of higher education on international students and that he is unable to get a job because he is “not brown” (para. 26). The report also showed that the accused has a high opinion of himself with “strong convictions” and no insight into his criminal behaviour or its severity, and “sees nothing wrong with having a sexual relationship between an adult such as himself and young girls, such as [the victim]. He believes girls as young as 13 have the same mentality as that of a university aged girl, that is, age 18 or older”.

The Court found the size and nature of the collection, with much of it involving pre-pubescent children and spanning the depravity scale to include severe child abuse material, including children as young as one years of age being violently sexually assaulted and additionally a young child abused with bestiality (para.59), as well as the grooming and sexual abuse of the victim to be aggravating factors. In addition, the Court also found as aggravating “a real and present danger that [the accused] will reoffend against children” based on the nature of the offences, the accused’s sense of entitlement and lack of “any sense of remorse” (para. 61). 

The accused was given a global sentence of seven years imprisonment, along with ancillary orders such as DNA and no contact with the victim, as well as a lifetime prohibition order under s 161.1 regarding being around anyone under the age of 16 due to the high risk to reoffend and the accused’s attitude that child sexual abuse is an acceptable practice.  

https://canlii.ca/t/k6xrb
R v Moss 2024 ONCJ 471

R. v Laroche, 2024 BCSC 1692

Statute: Criminal Code,
Section: s 235(1) and 182(b)
Province or Territory: British Columbia,
Offence: Abuse, Other,
Animal: Cat,
Type of Distress: Accused alleged to have murdered abusive partner after he abused her cat
Sentence: Found guilty of second-degree murder (initially charged with first-degree murder)
Legal Issue:

This case involves the accused being charged with murder in the first degree for killing her abusive partner after he had allegedly abused her cat. The accused and her victim were in a long-term relationship where, over time, the victim began to verbally, physically, and psychologically abuse the accused. On the night before the murder, the accused came home to find her cat was in distress, and became convinced that the victim must have hurt her, as he had done before when he had thrown the cat against a wall (para. 14). The next morning, the accused struck three heavy blows with the hammer against the victim’s head while he slept and then cut his throat so that he bled out. She then dismembered and stored his remains in the apartment fridge and freezer, disposing of them in backpacks over the next few months across the city (para. 17).

She confessed what she had done unwittingly to undercover agents posing as the brother and father whose sister was abused by Mantee and had shown them where she had deposited his remains. In paragraphs 28 and 30, the accused relates that the motive for killing the victim was the abuse of her animals as the final straw:

“…I was done with the abuse. I had been constantly threatened with death. He held a fucking shovel to my neck a few times, passed me out, choked me out to the point where I was passed out multiple times, pushed me around, kicked me around, always the bruises he knew to make sure it was concealed… it was the animal abuse that pissed me off, and that’s where I snapped. It’s like I’m not letting this go.” (para. 28)

“…it was the fact that he was hurting the cats. I was prepared to die. I really was because nobody wants that … but if he’s hurting the cats to hurt me because I’m still there, that’s where my problem was … he was hurting them to hurt me.” (para. 30)

Defence counsel’s submission that the accused had acted in self-defence was unsuccessful because the victim was sleeping when she killed him and therefore was of no immediate threat to her. The Court did partially accept the forensic psychiatrist’s assessment that the accused had “exhibited trauma-related symptoms such as heightened startle response, chronic anxiety, avoidance and fear, which are features of “battered spouse syndrome”” (para. 38). The Court also accepted evidence from Dr. Amy Fitzgerald (criminology and sociology professor from University of Windsor and member of Humane Canada’s Canadian Violence Link Coalition) that “abusive partners in intimate relationships employ various means of controlling and terrorizing their victims” and found “her research suggesting that some people come to view their pets as an extension of themselves, or as members of their family, such that they perceive violence or the threat of it against their pets as violence or the threat of it against themselves” as logical and uncontroversial (para. 43).

Because the Court found that the murder “was intentional but not planned and deliberate” (para. 68), the accused was found not guilty of first-degree murder, but guilty of the second-degree murder, as well as guilty of improperly or indecently interfering with, and offering indignities to, the dead human body.

https://canlii.ca/t/k6qpj
NEW R v Laroche 2024 BCSC 1692

R v Pinner, 2023 ONSC 7530

Statute: Criminal Code,
Section: s 163.1(4), s.91(2), s.145
Province or Territory: Ontario,
Offence: Other,
Animal: Dog,
Type of Distress: Breach of recognizance for possession of animal sexual abuse exploitation material and child pornography, and an illegal taser
Sentence: Four years imprisonment with a pre-sentence credit of 116 days, with 3.5 year sentence for the child pornography offence, a 6 month consecutive sentence for breach of recognizance and a 3 month concurrent sentence for illegal possession of a taser
Legal Issue: Possession of animal sexual abuse exploitation material ("pornography"),

This is a child pornography case in which some of the videos that were seized by the police include those depicting bestiality. The accused admitted that between January 1st, 2010, and June 14th, 2016, he searched for, viewed, and downloaded child pornography.

In July of 2015 his wife founded a box containing several items including children’s underwear, women’s underwear and other clothing (some of which was very worn and had staining) along with some ID cards with women’s names she did not recognize, video cassettes and a hard drive. On one of one of the video tapes, she saw the accused with another woman who was handcuffed to a chair, blindfolded, and in various forms of undress, and found folders with various titles such as BDSM and bestiality on the hard drive, which included at least one image of a dog licking the vagina of a child who seemed to be forcibly restrained.Later in March of 2016, she found notes in the basement that led to more files which the titles referred to rape and child pornography, as well as registrations for what appeared to be group chats involving pornography, rape fantasy, and other sexual activity. In the backyard shed, the wife found a bag with zip ties, duct tape, rubber gloves, three pairs of handcuffs, blindfolds, anti-nausea pills and long furry socks, as well as a newspaper clipping about Colonel Russell Williams and a loaded taser in a bucket nearby. In July of 2016, she turned all the evidence over to the police. The accused was arrested and charged with child pornography, unauthorized possession of the weapon, and other charges.

Pinner eventually pleaded guilty to all the charges. Following his guilty plea and having served a sentence of imprisonment of time served on those counts, on September the 4th, 2018, he was released on a recognizance from the Ontario Court of Justice in Milton. He later pled guilty to five counts of breaching that recognizance. The breaches of the recognizance that the accused was convicted of all related to breaches of terms that prohibited his being present with or having access to children.

The Court notes that the accused showed very little remorse apart from the guilty plea and portrayed himself as a victim of his wife; he initially described the offences as a one-time thing, although then admitted to them taking place over a number of years.  He said he feels terrible about the charges and that they make him feel sick, but he also said that he didn’t think they were “that bad” since he didn’t touch anyone, which led his probation officer and the Court to conclude that the accused showed a real lack of insight into the impact of his offences, and remained very vague about what his offences really were.

The Court found that the accused’s collection reflected the most extreme and disturbing sexual exploitation of young children and relied on Friesen and Sharpe for sentencing guidance. Aggravating factors included the nature of the images and the extent that the accused had concealed them in the family home, where they were ultimately found by members of his family. Victim impact statements were accepted by the accused’s wife and daughter, which detailed the emotional and psychological harms they have suffered by the accused’s actions. The Court also noted that the accused was not being judged for his character, “but for his criminal actions”.

He was sentenced to four years total incarceration: 3.5 years for the child pornography offence, 6-month consecutive for the breach of recognizance and 3-month concurrent sentence for illegal possession of a taser.

https://canlii.ca/t/k360k
R v Pinner 2023 ONSC 7530

R v McLeod, [1993] Y.J. No. 170

Statute: Criminal Code,
Section: s 267(1)(a)
Province or Territory: Yukon,
Offence: Other,
Animal: Dog,
Type of Distress: Using a dog as a weapon
Sentence: Crown appeal allowed: accused's acquittal rescinded and conviction of assault with a weapon (the dog) was entered
Legal Issue: Procedure,

This is a Crown appeal from an acquittal where the accused was charged with committing an assault with a weapon by using her dog. She admitted to inciting her dog, a pit bull, to attack the dog owned by the complainant. The accused also ordered her dog to attack the complainant, which the dog did, jumping at the complainant and biting her hand, breaking the skin on the thumb and first finger.

While the accused had pleaded guilty to two other counts of common assault, she was acquitted on the count of assault with weapon on the basis of the trial judge’s assessment that Parliament did not intend for animate objects, such as a dog, to be included in the definition of a weapon. The trial judge commented that this was the first occasion as far as they and counsel were aware that a Court has been faced with the question as to whether or not a dog, used in the manner it was by the accused: as a weapon. They concluded that “if Parliament had intended animate objects such as a dog be included in the definition of the word “weapon”, it would have said so in, and I repeat, clear and unambiguous terms, and having failed to do so, I cannot read into the definition of the word “weapon” the animate object of a dog” (para. 2.

The Crown appealed, arguing that the trial judge erred in their interpretation of “weapon” and “anything” to exclude animate things like dogs. The sole question before the Appeal Court was whether or not a dog was a weapon as defined in section 2 of the Criminal Code.

The Appeal Court noted that ” the legislative history suggests that in 1985, when the present definition was enacted by virtue of s. 2(8) of the Criminal Law Amendment Act, 1985, S.C. 1985, c.-19, Parliament intended to enlarge the scope of the definition” (para. 9), and went to quote the new definition at the time, stating that “the present definition is no longer confined to anything designed to be used as a weapon or anything used or intended to be used as a weapon” para. 10). Ultimately, the Appeal Court found that when Parliament used the term “anything” in the relevant provision, that word was meant to include animate and inanimate bodies. With this finding in mind, dogs can be used and intended to be as a weapon. Because the accused admitted to commanding the dog to attack the victim, the elements that constitute assault with a weapon are made out.

The acquittal was set aside and a conviction entered, and the matter was remitted to the Supreme Court of the Yukon Territory for sentencing. The relevance of this case is that animals can be understood to be used as weapons in certain circumstances.

 

https://canlii.ca/t/gbtrv
R. v. McLeod (Y.T.C.A.) 1993

R v Venclovsky, 2023 YKTC 50

Statute: Criminal Code,
Section: s.163.1(4), s.145(5)
Province or Territory: Yukon,
Offence: Other,
Animal: Other,
Type of Distress: Possession of child pornography with dogs engaging in various sex acts with children
Sentence: 15 months for possession of child pornography plus 3 months consecutive for failing to comply with release order, followed by two years probation as well as prohibition against owning or using any device to access the Internet
Legal Issue: Possession of animal sexual abuse exploitation material ("pornography"),

The 72-year-old accused pleaded guilty to two offenses possession of child pornography and failure to comply with a condition of his release order by possessing a computer device and accessing the internet contrary to the Criminal Code. Investigations were initialized when the accused brought his computer to technicians for repairs twice, and they made reports to authorities. An RCMP investigation revealed 1300 unique images of child pornography, including 18 unique images under Category 5: sadism or bestiality (para. 8). A report compiled by the RCMP constable attached to the Internet Child Exploitation Unit in Whitehorse, Yukon indicated that the Category 5 images included “images that actually belong to a video in which the female gives a fellatio to a dog. There are images of a dog penetrating a young female. There is a close-up image of a young female whom I believe was just penetrated by a dog and there are also images of a dog licking a female’s anus” (para. 9).

While the Court acknowledged that the accused was not actively involved in the abuse occurring in the videos or images, it found that section 718.01 of the CC that would give consideration to sentencing involving denunciation and deterrence applied to this offence. Three Victim Impact Statements from the Canadian Centre for Child Protection were submitted, two of which read into the record: the first from “Jenny” who was seven when her abuser began molesting and photographing her, which went on for two years until he was caught sending those pictures to other men on the Internet (para. 14) and another from a victim’s mother who described the impacts this crime has had on her child’s life (para. 15). The Court also quoted from paragraphs 47 and 48 in Friesen, regarding how technology has accelerated and proliferated child sexual exploitation, and that “online distribution of films or images depicting sexual violence against a child repeats the original sexual violence since the child has to live with the knowledge that others may be accessing the films or images” (para. 16).

The Court accepted defence counsel’s explanations that he had sat with the accused and read the victim impact statements to him, noting that he did not appreciate the harm that he was doing by possessing these images (para. 28) and accepted the joint sentence submission of counsel.

The accused was sentenced to 15 months on the possession charge and an additional three months for the failure to comply with release orders, for a total of 18 months with 72 days credit for time served. He was also sentenced to two years of conditional probation as well as a prohibition order against the use or possession of an Internet router or any computer system including a smartphone capable of Internet access or browsing. The Court also approved the request for forfeiture of the devices and router that was seized from the accused’s premises.

 

https://canlii.ca/t/k2d62
R v Venclovsky 2023 YKTC 50