R v Chen, 2020 ABQB 734; 2021 ABCA 74

Facts: 19-year-old accused pled guilty to beating Cinnamon, his 10-month-old husky. Evidence revealed present injuries as well as healed previous injuries. Neighbors called police, who arrested Chen. Chen claimed Cinnamon had defecated on the floor, and the beatings were ‘discipline.’

Initial Sentence: 60-days intermittent sentence, plus two years probation.

Accused Appeal: Sentence varied to 1-year conditional sentence.

Crown Appeal: Leave to appeal granted, appeal will be heard September 28th 2021.

Intervenor: Animal Justice granted leave to intervene, facta have been submitted.

Appeal set to discuss deference as well as goal & principles of sentencing in animal cruelty cases. Appeal was heard at the ABCA on September 21st 2021, reasons are reserved.

R v DLW, 2016 SCC 22

The accused was convicted on 13 charges of sexual offences involving his two step children. This included one count of bestiality pursuant to section 160(1) of the Criminal Code, R.S.C., 1985 C. c-46. The family dog licked the vagina of the older step-daughter, and the accused had aided and abetted this act by bringing the dog into the bedroom, applying peanut butter to the step-daughter’s vagina and then videotaping the interaction.

At trial (2013 BCSC 1327) the judge held that penetration was not an element of the offence of bestiality, and found the accused guilty (see para 300 onwards). He held that section 160 must be read in a modern context, and the offence must reflect current views of what constitutes prohibited sexual acts – sexual offences no longer require full penetrative acts to be committed.

The accused appealed to the British Columbia Court of Appeal (2015 BCCA 169) and his appeal was allowed. The modern provisions on bestiality originated from the English common law offence of buggery or sodomy, which required penetration. This offence was codified in 1869. While there had been subsequent amendments to the relevant provisions, including the separation of anal intercourse from bestiality, penetration did not cease to be an element of these offences by virtue of those amendments. The law criminalizing particular conduct must be certain and definitive. Bauman C.J.B.C dissenting.

The Crown appealed to the Supreme Court of Canada. The appeal was dismissed, the majority again referring to the common law origins of the offence which required penetration. Despite the subsequent amendments to the Criminal Code, Parliament had not further defined bestiality. The definition of bestiality had not changed but had retained the well-understood legal meaning of this ancient legal term, which included penetration. Abbela J. dissenting.

NOTE: Subsequent to this case the bestiality provisions of the Criminal Code were amended by parliament in June 2019 (see Bill C-84) to make clear that penetration was not a required element of the offence.

R v D.R., 2018 ONCJ 900

This was a section 445.1 and 445(2) Criminal Code case concerning a 16-year-old youth who killed a rabbit at his group home. After getting into an argument with a staff member, the accused went outside, climbed into an enclosure in which rabbits were kept and removed a rabbit before strangling him/her to death.

The accused raised the common law defence of necessity, arguing that he killed the rabbit because he/she was very cold and staff would not let him inside with the rabbit to warm him/her up. In rejecting this defence, the court referred to the three requirements in R. v. Perka, [1984] 2 S.C.R. 232: there must be imminent peril; the accused must have had no reasonable legal alternative to the course of action he or she undertook; and there must be proportionality between the harm inflicted and the harm avoided.

In finding the accused guilty the court considered in detail the case law on the terms “unnecessary” and “wilfully”.

For sentencing, see D.R. [2019] O.J. No. 4177

R v Helfer, [2014] O.J. No. 2984

Helfer pleaded guilty to criminal harassment, two counts of assault with a weapon, one count of break and enter, and one count of maiming a dog. .

Before the events culminating in criminal charges, Helfer was in a verbal altercation with his mother; in whose property he had been living that resulted in the police being called. Helfer returned later in the day after being told to leave, demanded to be let in, with him banging on the front door, saying that he wanted to get his dog, which was inside the residence. Helfer retrieved the dog without going into the residence. He then beat the dog viciously with multiple instruments. The end result was that the dog was dumped in a nearby dumpster with a wheelbarrow, with the dog barely clinging to life.

The key issue at trial was the length of sentence. Defence asked for three months, the crown for three years. Complicating this issue was that the Criminal Code in 2008 was amended, so that offences concerning cruelty against animals became indictable offences, which the crown said was a signal from parliament that longer sentences should be given to those who abuse animals.

In support of its arguments, the Crown submitted a petition by concerned residents who asked for the maximum possible sentence under the Criminal Code. Crown also submitted that when parliament amends a law to provide for a greater sentence, the court must act accordingly with a change in sentence. Crown also submitted that denunciation and deterrence must be emphasized here.

The judge imposed a two year sentence. Aggravating factors were Helfer’s harassment of his mother, and that he returned to the residence despite the fact police were called earlier in the day; the sheer violence towards the dog, the breach of trust aspect (Helfer was the dog’s owner), and the fact this was a senseless attack perpetuated by Helfer, in order to get back at his mother. Helfer’s prior criminal record for violent offences, and the impact on the community members who saw the attack and had to deal with the aftermath at the OPSCA.

Mitigating factors for sentencing were Helfer’s guilty plea, his expression of remorse, and the fact that he cooperated with the psych assessment, his youth (he is 24), the fact that his adult criminal conviction was five years in the past, his cognitive difficulties (ADHD and learning disability), his ability to feel some sympathy towards other individuals, and the fact that this was a spontaneous outburst of violence, rather than a calculated attack (the judge was of the belief the former was easier to manage).

The judge accepted the Crown’s argument that after the amending of the Criminal Code, those who commit animal cruelty will face harsher sentences than in the past. However he largely disregarded the petition, saying that these have no place in Canadian courtrooms.

R v Gerling, 2016 BCCA 72

Gerling operated a dog breeding facility in the Fraser Valley. In September 2010, 14 dogs were found in poor condition and seized by an officer of the BCSCPA, in accordance with s. 11 (a) of the Prevention of Cruelty to Animals Act. After the seizure the animals were inspected by a veterinarian, who found serious health problems which had been left festering for at least a few months. Gerling was later convicted at trial of willfully causing unnecessary pain, suffering, or injury to an animal, and failure to provide suitable and adequate food, water, shelter or care, contrary to s. 445.1(1)(a) and 446(1) (b) of the Criminal Code.

Gerling appealed the conviction. Issues on appeal were whether animals could be seized without giving owners a chance to relieve their distress, and how the mens rea is to be applied for the Criminal Code sections.

Appeal judge concluded that the SPCA Act gives officers discretion to seize animals, without giving recourse to the owner to relieve the animal’s distress if the owner “had not taken and would not be able to take the steps necessary to relieve their distress” ( Ulmer Test). Judge concluded there was ample reason for the officer to exercise her discretion here as there was a long history of SPCA orders regarding Mr. Gerling’s improper standard of animal care.

Judge also held that when there is no evidence to the contrary the test under s. 445.1.1.a is objective. 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 latter situation is when s. 429.1 of the code applies.

Judge found there was no contrary evidence in this case, and there was ample evidence that Gerling caused the suffering of the animals under his care, and he has neglected the care of these animals for a long time. As such Gerling could be convicted under the relevant Criminal Code sections.

R v Keefer, Vandyk & Visser, 2017 BCPC 63894-2C

The BC SPCA was alerted to an undercover investigation performed by Mercy for Animals (MFA). One of their employees posed as a worker at Chilliwack Cattle Sales and filmed his experience there. The video depicted numerous acts of violence towards animals, including beating, kicking, stomping and hitting cows.
After a lengthy investigation the BC SPCA recommended 20 charges to crown for Chilliwack Cattle Sales and its employees. The company and all employees have pled guilty.
Keefer, Vandyk and Visser pleaded guilty to section 24(1) of the Prevention of Cruelty to Animals Act and to section 34(a) of the Wildlife Act.

This case is precedent setting as all individuals charged received jail time for offences against farm animals.

R v Paulsen, 2015 BCPC 204679-1

Emma Paulsen owned a dog walking business for 7 years. On May 13th, 2014 Paulsen reported to the RCMP that six dogs had been stolen out of the back of her pickup truck while she was in the washroom at a dog park in Langley. An intensive search and investigation was conducted and resources were used from the RCMP, Animal Control and Pet Searchers Canada, including members of the public. It was not until May 19th, 2014 that Paulsen confessed to Pet Searchers Canada that the dogs had perished in the back of her truck while she was shopping and she had transported the bodies to Chilliwack and left them in a ditch. With this new information, the BC SPCA began an investigation into Paulsen and found that all 6 dogs had perished as a result of heat stroke, one of which belonged to Paulsen.

Although this case was deemed accidental, Paulsen pleaded guilty.

This case is significant as it is one of the few cases in which the accused is convicted of, and receives a strong sentence for, leaving an animal in a hot vehicle. It was also the charge under the (relatively) new section 9.1(1) which creates a positive duty on the part of an owner to protect an animal from a situation that is likely to cause an animal to be in distress (eg. leaving a dog in a car on a hot day).

Mitigating factors include: Paulsen did not intend to harm the dogs; Paulsen’s mental state at the time in question; Paulsen is a first-time offender.

Aggravating factors include: Paulsen’s behaviour was more than mere negligence; Paulsen’s six days of deception toward law enforcement, the media, the BCSPCA, and the owners of the deceased dogs; Paulsen did not apologize or express remorse and tried to cover up her wrongdoing.

R v Labonte, 2014 ABPC 153

Sentencing following a guilty plea. Accused was a 19-year-old employee of a dog daycare. He brutally beat a 5-month-old boxer named Apollo until he vomited blood. The dog had no lasting or permanent injuries. The event was caught on CCTV.

Given the severity of the offence and position of trust, accused sentenced to 60 days conditional sentence. An animal prohibition (except from the accused’s current cat) was decied but not included in these reasons.

R v Gerling, 2013 BCSC 2503

Decision following 14-day trial. Gerling operated a chihuahua kennel. The dogs under his care were poorly groomed, inadequately cared for, and required serious eye and dental treatment. BCSPCA attended the kennel multiple times, citing infractions and making orders to remedy issues. Events took place between March 200 and February 2011.

Accused claimed Charter breaches of s. 7 and s. 8 for over-seizure of the animals, but these arguments were not accepted.

Judge cited R v Clarke (2001 NLPC) and R v Hughes (2008 BCPC) to conclude that the Crown does not have to prove subjective foreseeability of unnecessary pain or suffering, but that the length of suffering and repeated BCSPCA orders meant that the accused was wilful and caused the actus reus.

Accused found guilty.

R v Pacific Meat Co, 1957 BCSC, 119 CCC 237

Leading case on the Crown’s burden of establishing ‘unnecessary’ suffering.

PMC operates a slaughter house for hogs. During the slaughtering process, hogs are shackled, dangled in the air as they are hoisted, and struck against a metal wall. Then, a person designated as a sticker cuts the hogs’ throats with a knife. It was alleged that this process causes hogs unnecessary harm and suffering.