R v Marohn, 2012 BCPC 198; 199

In December 2008 a police officer responded to a report of a vehicle in a ditch. Dr. Marohn was at the scene with a horse, which he was using to attempt to pull the car from the ditch. The horse had collapsed and could not be raised to its feet. A veterinarian had to euthanize the horse. Necropsy revealed the horse was emaciated due to lack of food.

Dr. Marohn had financial problems due to an injury which made him incapable to work. He still collected horses on his property, despite knowing the financial burden.

Trial judge does not accept the accused’s evidence of the event, and states that he is “satisfied beyond a reasonable doubt that the accused was using Buddy [the horse] to attempt to free the vehicle from the ditch,” despite knowing the horse was emaciated.

Although being in financial trouble, Dr. Marohn declined an offer from the SPCA to take four of his horses. He made some efforts to find alternative locations for the horses, which were not commensurate with the seriousness of the situation. The judge states, “it is clear that the accused’s heart and good intentions interfered with his good judgment… It interfered with him using due diligence in finding alternative solutions.”

The Crown has proven the elements as required in s. 24(1). With respect to s.446(1)(b), the evidence proves beyond a reasonable doubt that there was a marked departure from the reasonable care in these circumstances.

Dr. Marohn was found guilty of both counts.

Sentencing:

A large degree of the accused’s poor judgement in dealing with the issues related to the horse are related to his medical issues. He is unable to work, which put his family in dire financial distress. Dr. Marohn (a veterinarian) lost his practice and had to rely on friends for the housing of his daughters. According to the judge, “it is clear that if he had the financial means he would have properly cared for his horse,” and “the accused expressed genuine remorse” for his actions.

Denunciation and deterrence has already occurred by virtue of the public arrest, the conviction, the accused’s pre-trial release, conditions on release, and the extensive media coverage.

Dr. Marohn was sentenced to 24 months probation for each count, to run concurrently, as well as a 3 year prohibition order.

R v Tremblay, 2012 BCPC 410

Defendant hit the dog, “King”, with his open hand and with a dish as well as striking the dog , including blows with the hammer to its head and body. Tremblay sprayed a substance into the dog’s face and appeared to rub the substance into the dog’s eyes. The judgment seems to suggest if Crown had proceeded by way of indictment, might have imposed a longer jail term although not criticizing Crown’s decision to proceed by summary conviction. Might have been longer than 6 months except 1) Crown asked for 6 months; 2) Comparison to similar cases (Connors and Munroe)

Sentence: (1) 6 months imprisonment; (2) 30 month probation; (3) $5233.37 restitution to owner; (4) 25 year animal prohibition

R v McConkey, 2008 ABPC 37

McConkey’s dogs were severely matted, had irritated skin and dental problems, as well as other health issues. She failed to arrange proper treatment for their afflictions.

R v Carter, 2006 ABPC 341

Carter’s farm was variously described as a ‘disaster’ and a ‘hazard zone.’ Her animals were severely neglected. There was debris, junk, and faeces scattered all across her barn. There were corpses of a dog, a chicken, and four rabbits. Some of the stalls contained faeces up to a metre high. Her foals were caked in faeces, flakes, and scales. One of them had died and was left to rot in a tiny stall. Her horses were deprived of adequate food, shelter, and water.

Found guilty: no sentence indicated in case. However, “she was fined $1000 and ordered to reduce the number of livestock to no more than 10 animals for a five-year period; she also must keep the Alberta SPCA informed of the animals under her care” [http://www.albertaspca.org/resources/publications/AnimalKind_27-1_Spring2007.pdf, at 4]

R v Irving, 2013 SKPC 101

Puppy mill: 57 dogs in muddy yard without adequate food, shelter, or care. Failed to meet generally accepted practices for dog kennel. Charged but found not guilty of two counts under the Criminal Code. Found guilty of one count of causing animals to be in distress contrary to the Animal Protection Act.

R v Hiebert, 2003 MBPC

A husband and wife owned and operated what appears to be a “puppy mill” operation (unlicensed dog kennel). An SPCA officer investigated and found approximately 40 dogs living in unsanitary conditions, many were sick and were not being provided veterinary care. Later, SPCA attended again and seized 99 dogs. Some dogs were euthanized due to their poor conditions.

Out of the 8 counts charges, the Hieberts were convicted of 6, and acquitted of 2.

172 Man.R. (2d) 73 57 W.C.B. (2d) 242

R v Menard, (1978) 43 CCC (2d) 458 QCCA

Leading case on definition and use of ‘unnecessary’, reasons written by Lamer JA before appointment to the SCC.

The accused owns a business (“Contrôle Sanitaire des Animaux Enreg.”). He takes care of euthanizing stray animals that are not reclaimed after 3 days. Unfortunately, his euthanasia system, powered by a motor, causes pain and burns to the mucous membranes and respiratory tract of the animals. The defendant could have easily, at a reasonable cost, better equipped his system so that animals were not subjected to such pain and suffering.

The accused trapped strays and killed them using forced ingestion of carbon monoxide. He was convicted at trial and the conviction was upturned on Appeal. The Crown appealed and conviction re-instated.

The amount of pain and suffering inflicted upon an animal is not an element of the offence whenever it is inflicted wilfully, unnecessarily or without legal justification or excuse or colour of right.

The magnitude of pain will, however, be measured when appreciating the necessity for its infliction. Even when a desirable and legitimate object is sought to be attained, the pain caused in so doing must not so far out-balance the importance of the end as to make it clear to any reasonable person that it is preferable that the object should be abandoned rather than disproportionate suffering be inflicted.

Man is superior to animals and, because of that, can use them for his own needs. In so doing, however, he must inflict upon them only such pain and suffering as are unavoidable taking into consideration the end sought, the means at his disposal and the circumstances of each case.

“Cruelty” is causing pain, suffering or injury to an animal when such pain, suffering or injury could have been avoided considering the end sought and the means resorted to.

In the instant case, although the killing was a legitimate and desirable object, the way it was done constituted unnecessary pain and suffering since another means of attaining that end existed, was known to the accused and the cost of it was not prohibitive.

The evidence at trial was the dogs would die relatively rapidly however, the manner of death would cause pain and suffering and simple, cheap systems were available to make the process more tolerable for the dogs. The Court of Appeal found the euthanasia of strays was justified and the activity could not be condemned by reason of the illegality of its purpose. The issue was the means employed.

R v Clarke & Clarke, 2001 CanLII 12453 NLPC

A volunteer of the SPCA found several dogs in pens or chained on the property of the accused (Mr. and Mrs. Clarke) without food or water. The circumstances were allegedly unchanged on a third visit to the site, so the volunteer had all dogs seized and placed in new homes, including the healthy dogs. No explanation had ever been given to the Clarkes as to why the dogs were seized. According to the judge, the volunteer was in no position to conduct a proper investigation under the criminal code and should not have been given this authority by the SPCA.

A veterinarian’s examination of the dogs showed that one was too thin but not necessarily underfed, and the others were generally in good condition with no evidence of dehydration. Mr. and Mrs. Clarke were charged with cruelty to animals with little to no supportive evidence. Both were then acquitted as the evidence was insufficient in proving beyond a reasonable doubt that either Mr. or Mrs. Clarke willfully allowed or caused their animals to suffer. The mere fact that the dogs were thin was not proof of cruelty in and of itself.

Accused acquitted.

Good analysis of mens rea requirements for neglect and unnecessary – however, that analysis should now be done with reference to BCCA in Gerling.