The Appellant (Reykdal) killed his girlfriend’s cat after it bit him. Reykdal was charged under s. 445 of the Criminal Code (“Code”) with killing an animal without lawful excuse. He was convicted in Provincial Court and sentenced to four months incarceration. Reykdal appealed to the Summary Conviction Appeal Court, where the trial judge’s sentence was set aside, and the appellant received a conditional discharge and restitution order of a $500 donation to the SPCA. The issue in question at the New Brunswick Court of Appeal (“NBCA”) was whether the Summary Conviction Appeal Court erred in setting aside the trial judge’s sentence.
The permissible scope of appellate intervention on sentence appeals is narrow. A court cannot change a sentence unless the sentence was imposed by a mistake of law, an error in principle, or if the sentence is clearly unreasonable. The NBCA found the trial judge sufficiently invoked the principles of sentencing outlined in s. 718 of the Code, including that incarceration should be used as a last resort, and found the trial judge had sufficiently considered all factors of the case. The trial judge recognized that Reykdal suffered mental health problems and substance abuse, felt remorse for his actions, and had no prior criminal record. The trial judge also recognized the cat’s death was excruciatingly painful and cruel.
The trial judge was not required to review decisions of similar cases from other jurisdictions. In New Brunswick, there is virtually no appellate level jurisprudence regarding the appropriate period of incarceration in animal cruelty cases. The NBCA noted that patterns in Ontario jurisprudence showed those with prior criminal records, especially pertaining to animal abuse, will likely serve longer sentences. Based on stricter prior sentences in Ontario, some ranging from twelve months to two years, the NBCA decided that four months incarceration is neither unfit nor unreasonable in the circumstances of this case. The NBCA reinstated the trial judge’s sentence of four months incarceration and corrected the trial judge’s prohibition order to reflect the proper section number under the Code (s. 447.1(1)), which prohibits Reykdal from possessing any domestic animal for five years.