R v Chen, 2021 ABCA 382

Court of Appeal of Alberta decision on sentencing with some precedent-setting statements marking animal cruelty as a crime of violence and that “there can be no disputing that animals are sentient beings that are capable of experiencing pain and suffering and can be victims of violence” (para. 33).

Facts: 19-year-old accused plead guilty to beating his 10 month old dog Cinnamon, claiming it was ‘discipline’. The beating lasted for approximately 20 minutes, until police arrived. Injuries to the dog included a broken paw, broken teeth, scleral hemorrhaging in one eye and blunt force trauma to right hind leg, head and abdomen. Accused plead guilty to causing unnecessary suffering to an animal, contrary to s 445.1(a) of the Criminal Code.

Initial Sentence: 90 days intermittent incarceration, plus two years probation. Based on sentencing principles of denunciation and deterrent, the sentencing judge held that a Conditional Sentence Order (CSO) would not be appropriate “given the brutality of the attack and the moral blameworthiness of the respondent” (para. 2).

First appeal: Accused appealed his sentence. On appeal the court overturned the sentencing judge’s decision, concluding that a CSO ought to have been imposed given the primary objectives of sentencing in this case, which they viewed as deterrence and rehabilitation. A one year Conditional Sentence and two years’ probation was ordered. For this first appeal see here.

This appeal: Crown was granted permission to appeal, which raised two issues:
(1) What are the sentencing principles applicable to animal cruelty cases having regard to 2008 amendments to the relevant Criminal Code provisions and jurisprudence following those amendments; and
(2) Did the appeal justice give sufficient or any deference to the decision of the sentencing judge in this case?

Held: Initial sentence of 90 days intermittent and two year probation was restored based on principles of denunciation and deterrent.

Details: The Court took note of the ‘enforcement gap’ regarding animal cruelty cases where the sentence often fails to reflect the gravity of the conduct and noted the amendments to animal cruelty provisions of Criminal Code in 2008 are an indication of the gravity of the offence and an indication that Parliament “wanted such offences to be punished more harshly” (para. 24). The objectives of the amendments are: to better reflect the serious nature of the crimes of animal cruelty, provide better protection for animals who are the victims of such crimes, and enable flexibility in sentencing.

The Court noted that in this case there was deliberate cruelty to animals which is “the most egregious form of animal abuse” (para. 22), and that animals are “sentient beings that experience pain and suffering, must be treated as living victims and not chattels. Smashing a pet through a window is not the same as smashing a window” (para. 27).  Further “An aggressive attack on an animal intended to willfully cause unnecessary pain, suffering or injury is properly characterized as violence” (para.35). Despite being a youthful first-time offender, where normally rehabilitation would be the main sentencing factor, this is not the case in scenarios of offences involving violence. In cases of animal cruelty deterrence and denunciation must be the primary sentencing factors.

The court also recognized that “Not every contravention of the animal cruelty provisions will be a crime of physical violence; crimes of neglect, depending on the circumstances, can be equally serious and sufficiently grievous to diminish, or eliminate, the likelihood of a CSO.” (para. 36).

The Court examined various aggravating and mitigating factors and found that ‘provocation’ due to the animal’s behaviour, including defecation and urination, is not a mitigating factor (para. 43), nor is the fact that the animal may have made a full recovery (para. 42). The Court also rejected the defence’s argument that the accused’s cultural norms and background should count as mitigating circumstances, stating that “while these factors might explain conduct, they cannot diminish moral culpability” (para. 46). Aggravating factors included abuse motivated by a desire to assert control or exact revenge and breach of a position of trust (para. 44).

Greater consideration should be paid to prohibition orders (s.447.1(1)(a)) and restitution orders (s.447.1(1)(b)) (neither of which were requested or considered in this case).