A twenty-seven (27) year old Indigenous male accused with a number of intellectual disabilities, plead guilty to the killing of his cat (unnamed). The cat died after their head was hit against a wall about six (6) times in rapid succession which was a response by the accused to the cat hissing. He then phoned his foster mother and told his psychiatrist, which led to the matter being given to the police and the accused being charged under s.445.1 (1)(a) of the Criminal Code.
Citing Chen, the Court felt that the offence evoked a strong visceral reaction to the “senseless killing of a helpless, sentient being” (para. 11). The Court also believed that the sentencing goals of denunciation and deterrence should be given primary consideration but, given the aggravating and mitigating factors, jail time would not achieve those goals.
The mitigating factors considered were Kirkby’s guilty plea and taking responsibility for his actions, his cooperation with police, providing the only evidence supporting his prosecution, his genuine remorse for the incident, the results of the Gladue report, and his underlying psychological conditions which included Fetal Alcohol Spectrum Disorder (FASD), Attention Deficit Hyperactivity Disorder (ADHD), Post Traumatic Stress Disorder (PTSD), Reactive Detachment Disorder, and a Cannabis Use Disorder. The aggravating factor considered was that he was recently released from hospital with new anti-psychotic medication, and that he was supposed to receive a new dose a week prior to the incident which did not happen.
Given all the factors, the Court recognized the seriousness of the offence, and that abuse of a pet is always serious. However, it did not accept a submission that a pet dying is an aggravating factor by itself. In addition, the Justice was satisfied that the case was not one of deliberate sadistic abuse, but rather one of emotional dysregulation. Because of that, they expressed that jail was not the only method to express denunciation. The Court concluded that jail should be a last resort and no sentence should be harsher than what is necessary to accomplish the intended objectives of the sentence when considering the principles of crafting sentences and the sentencing objectives under s 718 of the Criminal Code. Considering the accused’s young age and conditions, the Justice believed they would be extremely vulnerable in jail and susceptible to anti-social influences.
In sentencing, the Court was deciding between a Conditional Sentence Order (CSO) and Suspended Sentence Probation, noting that the potential consequences of a breach for the latter can be every bit as serious of breaching a CSO, if not more given that under a Suspended Sentence Probation as the potential consequences do not diminish the closer one gets to the end of the order.
It was worth noting the Court also considered that Kirkby had no prior criminal record, which was not necessarily a mitigating factor, but it was a “lack of an aggravating factor” (para. 23).
https://canlii.ca/t/jzcc5