R c Lyonnais, 2012 QCCM 183

The defendant began to beat the dog, kicking him and held aloft by the leash for 25 to 30 seconds. The dog was crying and lamenting. Another witness came to say that at another moment the defendant ”squeezed” his dog in the front door of the apartment building and hit him with his feet.

Trial for unnecessary pain and suffering for kicking a dog and pulling a dog tightly by the leash. The dog was crying and wailing. The accused provided a vague explanation of the events.

The judge did not find the accused’s evidence credible. The witness testimony showed the dog suffered pain and suffering. There was justification for the kicking.

Accused found guilty.

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 c Rodier, 1996 CarswellQue 2758

Accused has a business of breeding dogs (puppy mill). He was charged with criminal neglect for the manner in which the dogs were treated. He was charged with 262 counts of neglect. The Court found the dogs had adequate food and accepted the defence evidence of the manner in which the food was prepared. There were skinny dogs but they were in the minority. The Court also rejected the water was inadequate. The bowls in the cages was empty or dirty on the date of the seizure. But there was no evidence this was a long standing issue and no evidence of dehydration. The Judge also rejected they had inadequate shelter. It was argued the buildings were inadequate because of lack of heating, unsanitary, no ventilation and the smell of ammonia was strong and too many dogs were in the cages. This was also rejected because defence expert evidence was lead that this is the way breeders are allowed to practice in the US and defence vet that there was no medical issue with any of the dogs. The judge was also left with a doubt that they had inadequate and insufficient care. The majority of the dogs were healthy and if a health problem arose there was sufficient vet care to handle it. The accused acted with good faith. However, there were some animals, namely the small breed long hair dogs that the accused did not seem to know how to properly deal with. There were convictions on the counts involving those animals but he was acquitted of all other charges. Part of the issue was the charges were laid for the specific date of the seizure and were not for a range.

Defendant convicted on 32 of the 262 charges against him.

R c Girard, 2012 QCCQ 1436

Sentencing following a guilty plea to unlawfully killing and causing unnecessary pain, suffering or injury to his dog.

Facts: After a failed attempt to euthanize a female dog and her 7 puppies with carbon monoxide from his car, the defendant, with a nail gun, drove a nail into the skull of the dog. Later, he also took on the puppies and drove one nail into her head and another in the throat. Then, desperate to get rid of them, he abandoned the injured dog and her 7 puppies at the edge of the road.

Analysis:  The judge found he was remorseful and was showing a firm desire to repair what he had done. There was a low risk of recidivism. Summary election. No criminal record, 52 year old offender, father of 5. Judge found he did not act of sadism, perversion or malice and he was an otherwise productive member of society.

Sentence: (1) Two year probation (2) Complete 150 hours of community service (3) $ 2,000.00 in favour of the Granby SPA (4) Prohibition under section 447.1 of the Criminal Code, to own an animal or to have the custody or control of or residing in a place where there is an animal for a period of three years.

R c Perron, 2003 QCCQ 32967

From October 8, 2001 to January 10, 2002, Johny Perron and two friends caused 8 fires, fail on two attempts and cause death to a herd of 19 animals, trapped in the barn where the accused started a fire.

Guilty plea to setting 8 fires, 2 arson attempts and killing cattle and thefts. Among other arsons, 1 of them was to a barn that resulted in the death of 19 cows.

Sentenced to 3 years jail. 19 year old accused, guilty plea, he checked no people were present when the fires were set. He has done some rehabilitative work. Sentencing decision is here.

The accused appealed the sentencing decision, and the Court of Appeal found that while a penitentiary sentence was required, it was reduced to two years in R. c. Perron, [2003] J.Q. no 5810 (via Google Translate):

1. We are of the view that the trial judge was correct in finding that a sentence of imprisonment in the penitentiary was appropriate in the circumstances.

2 On the other hand, we are also of the view that it did not take sufficient account of the sentences imposed on the other accomplices or of the appellant’s age, while imputing to him as an aggravating factor, by mistake, a history that he did not actually have.

3 For these reasons, the Court:

Welcomes the application for leave to appeal;
Welcomes the appeal to reduce the sentence from three years to two years.

 

R v Robert, 2001 ONCA 24122

Accused plead guilty to encouraging or aiding the fighting of animals. Defence acknowledged the elements of the offence were made out. The original judge was reluctant to go along with the joint position and asked to hear from the SPCA as a witness. The judge ultimately sentenced the accused to 30 days jail, 2 years probation, 110 hours community service, and 2-year animal prohibition. The accused appealed his sentence and the appeal court ordered a new trial. The Crown then appealed.

Held: Appeal allowed and the matter sent back to the summary conviction appeal court to dealt with the issue of sentence.

Note: Appears this same accused was convicted in [2018] O.J. No. 732 of animal fighting again.

R v Courchesne, 2005 OJ No 4601

Sentencing after guilty plea.

Facts: In front of a child (9 years old) the accused took a cat by its legs and swung the animal against a cement wall, causing its death. He had prior conviction for animal abuse.

Held: conditional sentence was not appropriate. 30 days jail, 1 year probation, 2 year animal prohibition

Sentence: imprisonment for 30 days to be followed by probation for one year. The offender was prohibited from owning or having custody of any animal for two years.

R v Schafer, 2000 CarswellOnt 3549

Accused saw a small dog ran unto his law. Accused attempted to stop he dog from urinating on the lawn. He waved his arms and kicked towards it. He then picked up the dog and threw it into the street and the dog did not get up. Accused and neighbour then brought the dog to the vet. The dog was in a coma.

An animal remains a kept animal even if strays from the owner or property. While he had the right to remove the dog he did not take reasonable care to avoid injury in doing so. Schafer intended to throw the dog into the road. Although he was surprised at the injury and took action to remedy the situation, he was either wilfully blind as to the consequences or reckless whether harm and injury would result from throwing the dog. All he had to do was take the dog to the side of the road and put it down.

Accused found guilty.

R v Turnball, 2005 OJ No 2473

Trial on criminal neglect, both accused and his wife charged. Animal welfare inspectors had attended the residence and observed two dogs severely emaciated and a third dead dog. Necropsy could not reveal the cause of death but found it was likely starvation. Accused claimed the dogs had always been thin and the third dog had been poisoned. He claimed his stepson was looking after the dogs. Judge deeemed the accused as not credible.

All the dogs had been neglected, however, the court was left with a reasonable doubt about whether the accused was the owner of the dogs. The Crown only proved that the dogs were on the accused’s property. There was no other evidence of the accused caring for, walking or registering the dogs.

Accused acquitted.

R v Conforti, 2000 CarswellOnt 1723 ONCA

APPEAL by accused from decision of summary conviction appeal court allowing Crown appeal; CROSS-APPEAL by Humane Society from acquittal on charge of cruelty to animals. After the Peel Humane Society’s argument failed in front of the trial judge, they advanced the argument that he should have been convicted for injury or causing cruelty to animals, for failing to authorize medical treatment for his dog once it was in the veterinarian’s office. Appeal allowed, Cross-appeal by the Humane Society dismissed.

Court of Appeal of Ontario entered acquits on both counts of charges of animal abuse. Not enough facts in case for any analysis.