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Animal Cruelty (CCC)
Legal Guide
Chapter 6 - Penalties
(01 January 2015)- Basic Sentencing Concepts
(a) Overview
(b) Indictable, Summary Conviction and Hybrid Offences
(c) Sentencing Criteria
- Statutory Maximums for the Main Animal Offences
- Orders of Prohibition and/or Restitution
- Related Offence Penalties
- Some Sentencing Caselaw
(a) Overview
(b) Pre-April 2008 Cases
(c) Post-April 2008 Cases
1. Basic Sentencing Concepts
(a) Overview
There are a number of considerations when determining the 'sentence' or penalty that will be assessed against a convicted defendant. These require understanding of some basic concepts, explained here.
Note that the most recent amendment [Bill S-203] to the Part XI animal offences consisted entirely of penalty increases, most provisions adding an 'indictable' five-year maximum form of the offences [see s.2 below]. Courts will take this as a signal to increase sentencing proportionally in relation to the pre-S-203 levels (both pre and post-S203 penalties are indicated below).
(b) Indictable, Summary Conviction and Hybrid Offences
Offences in the Code generally fall into one of three categories for penalty purposes: summary conviction, indictable and 'hybrid'.
The first, and the least serious, are "summary conviction" offences. Procedures for summary conviction offences are set out in Part XXVII of the Code and the general penalty (unless otherwise specified) established for all of them is a maximum fine of $2,000, six months imprisonment, or both [CCC s.787]. If an offence is only punishable by way of summary conviction, the offence provision will state that.
"Indictable" offences are offences of a more significant moral nature. Procedures used for them are more complex than those for summary conviction matters, and their penalties are set out specifically in the Code in relation to each different type of offence. The offence provision will expressly state if the offence can be charged 'by way of indictment'.
"Hybrid" offences are ones that, at the election of the prosecutor, can proceed EITHER by way of summary conviction, or by way of indictment. In those case the specific offence provision will state those options, and the maximum penalties associated with each option. Most animal offences (since Bill S-203) are hybrid offences.
It is revealing to note that, both before and after Bill S-203, the most extreme penalty for any form of animal offence [exceeding that for even'cruelty'] by far has been for anyone who "wilfully ... kills, maims, wounds, poisons or injures cattle". As this offence is subject to the colour of right defence (for owners: see Ch.4) it is thus primarily a true property offence as the only actual form of the offence is by non-owners depriving owners of the 'use' of the animal. This offence is the only one after Bill S-203 which can ONLY be commenced by indictment, and prior to Bill S-203 it was the ONLY offence which carried a maximum five-year imprisonment penalty (all the rest were summary conviction only: six months/$2000/both).
(c) Sentencing Criteria
Readers unfamiliar with the criminal justice system should know that the 'maximum sentences' they read about in the newspapers in relation to specific offences are rarely - if ever - applied. In fact, courts very often - especially when dealing with 'minor' matters like the animal offences - don't even apply a fine or prison at all. Much more frequent are such exotica as absolute or conditional discharges (which are effectively dismissals, sometimes with certain conditions attached), and probation (which allows the court to impose on-going conditions for a limited time). Even 'time' is often ordered served on weekends - OR as 'house arrest'.
That said, when they do get into consideration of the statutory penalties set-out in the Criminal Code, courts have developed a long list of criteria which they assess when determining the sentence. Some of these criteria are listed here.
Firstly - and as noted above - the "maximum" penalty is reserved for the most egregious forms in which the offence can be committed (think Paul Barnardo) and for this reason is quite rarely awarded. That said, the 'maximum penalty is the 'ruler' by which the court will assess the sentence in light of the relative seriousness of the facts.
Next, multiple offences will tend to be lumped together and treated as one for sentencing purposes if they are connected by a "nexus" of similarity - particularly time. Thus a series of several technically-distinct robbery and assault offences all committed in the context of one botched bank robbery will almost certainly be treated as one offence (the most serious) for the purposes of sentencing. While individual sentences are passed on each of the separate offences, this effect is achieved by ordering that they all run "concurrently" (at the same time). Offences which are not connected by such a 'nexus' are much more likely to run "consecutively" (one after another) - though this is quite rare.
Other factors which are often weighed in the sentencing decisions include (there are many more):- whether the defendant pleaded guilty (reduces) or was found guilty after a trial (increases)
- past criminal record
- remorse
- restitution to the victim
- standing in community
Note again that the recent increases in statutory penalty for animal offences (see s.2 below) will be taken by the courts as a direction to increase sentencing proportionally.
2. Statutory Maximums for the Main Animal Offences
All of the main animal offences (below) are discussed in Ch.3 ["Main Offences"]. Bill S-203 came in force April 2008.
| Offence | Indictable (Current) | Indictable Pre-S203 | Summary Conviction (Current) | Summary Conviction (Pre-S203) |
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Cattle
[CCC 444] | 5 years | 5 years | none | 18 months/$10,000/both |
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'Kept' Non-Cattle Animals and Birds
[CCC 445] | 5 years | none | 18 months/$10,000/both | 6 months/$2,000/both |
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General Cruelty
[CCC 445.1(1)(a)] | 5 years | none | 18 months/$10,000/both | 6 months/$2,000/both |
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Fighting and Baiting
[CCC 445.1(1)(b)] | 5 years | none | 18 months/$10,000/both | 6 months/$2,000/both |
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Administering Poisonous/Injurious Substances to Domestic or Captive Wild Animals and Bords
[CCC 445.1(1)(c)] | 5 years | none | 18 months/$10,000/both | 6 months/$2,000/both |
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| Captive Bird Shooting ("Canned Hunts") [CCC 445.1(1)(d,e)] | 5 years | none | 18 months/$10,000/both | 6 months/$2,000/both |
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Injury During Transportation
[CCC 446(1)] | 2 years | none | 6 months/$5,000/both | 6 months/$2,000/both |
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Abandonment or Inadequate Care of Domestic or Captive Wild Animals or Birds
[CCC 446(2)] | 2 years | none | 6 months/$5,000/both | 6 months/$2,000/both |
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Keeping Cockpits
[CCC 447] | 5 years | none | 18 months/$10,000/both | 6 months/$2,000/both |
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3. Orders of Prohibition and/or Restitution
All of the above offences [in s.2] are, on conviction, also subject to additional orders [CCC 447.1] for prohibition of ownership, custody or control of animals - and orders for restitution.
Orders of prohibition respecting ownership, custody, control and co-residency with animals or birds may be made - and may be of any length, at the judge's discretion - except that in cases of second or subsequent offences the order SHALL be for a minimum of five years. Breach of a prohibition order is itself a summary conviction offence.
On request of the Crown prosecutor or the court, orders for monetary restitution may be made against the defendant and to a person or an organization (commonly the OSPCA) who incurred care costs respecting the animal, if such costs are reasonably ascertainable.
Case Note:
Note that the case of R v Pryor (Ont Sup Ct, 2008), where the court denied a restitution award to the OSPCA on the grounds that it was not a 'victim' (the court's term) within the meaning of CCC s.738 (general restitution orders) so as to attract a restitution order, has been superceded by the 2008-added provision s.447.1. This new 2008 provision expressly allows restitution to animal welfare organizations:CCC 447.1(1)
The court may, in addition to any other sentence that it may impose under subsection 444(2), 445(2), 445.1(2), 446(2) or 447(2),
.....
(b) on application of the Attorney General or on its own motion, order that the accused pay to a person or an organization that has taken care of an animal or a bird as a result of the commission of the offence the reasonable costs that the person or organization incurred in respect of the animal or bird, if the costs are readily ascertainable.
.....
(3) Sections 740 to 741.2 apply, with any modifications that the circumstances require, to orders made under paragraph (1)(b). [these are ancillary provisions re the general s.738 restitution authority]
4. Related Offence Penalties
Penalties of the "ancillary" forms of these offences [see Ch.5 "Related Offences"] are determined in relation to the penalties set for the main offences (above). Their relationships are explained in the link at Ch.5.
The maximum penalty for the animal-related offences of uttering threats [CCC s.264.1] is two years (indictable), and six months/$2000 fine/both (summary conviction).
The maximum penalty for intimidation [CCC s.423] is five years (indictable) and six months/$2000/both (summary conviction).
5. Some Sentencing Caselaw
(a) Overview
Following are some examples of fact situations and penalties that courts have rendered in animal offence cases. When reading them, keep in mind that any case decided before April 2008 will have applied a lower maximum penalty than those now in place after Bill S-203 [see s.2 above]. Before Bill S-203, the penalty maximum was six months, $2,000 fine or both.
(b) Pre-April 2008 Cases R v Racicot (Ont Prov Div, 1998)
"General cruelty" charges re 29 dogs and "inadequate care" charge respecting six dogs and eight turtles; 88 dogs found in various states of neglect after fire in house. Guilty plea.
... 30 days jail, three years probation, 250 hours community service, $10,000 restitution, 5 years prohibition order. Multiple counts running concurrently.
R v Fowlie (NBQB, 1998)
"Cattle" charge respecting owner who killed a colt by dragging behind a car and beatings. Guilty plea.
... 90 days jail on weekends to allow farm duties; two years probation with SPCA supervision of farm, $1,000 fine.
R v Pryor (Ont CJ, 2007)
"Inadequate Care" charges respecting inadequate water, food, shelter and cleanliness for multiple horses. History of care seizures by OSPCA.
... three years probation with care reporting conditions, restitution $28,500; horse possession limited to 18
R v Perrault (NS Prov Ct, 2007)
Joint "general cruelty" criminal charge and provincial 'distress' charge respecting man who cut genitals from a kitten with scissors and failed to consequently provide medical care. Guilty pleas, physical and mental illnesses.
... three months house arrest, numerous conditions, two years probation, lifetime animal ownership prohibition, $2377 restitution, $400 fine
R v Collier (Ont CJ, 2003)
"General cruelty" charge re single dog neglect; kept in basement and denied necessary medical care re open wound and otherwise. Dog euthanized. Guilty plea, elderly defendant.
... 60 days house arrest, two years probation, prohibition order for two years, $700 restitution
R v Pedersen (BC Prov Ct, 2005)
"Mischief" charge respecting drunken killing of 31 pet geese, ducks and chickens (decapitation) in conjunction with minor charge of theft under $5,000, co-accused. History of dispute between defendants and cattle owner.
Guilty pleas. Post-charge 'discovery of Christianity'.
... one year conditional sentence, $700 restitution, $200 donation to BCSPCA
R v Campbell-Brown (Alta Prov Ct, 2004)
"Kept Non-Cattle Animals and Birds" charge respecting killing of dog by rifle in course of neighbour dispute. Defendant initially lied to police, concealed body, confessed when confronted with inculpatory evidence. Guilty plea. Some mental issues.
... 18-month suspended sentence and probation with apology letter, 100 hours community service, counselling, $1000 restitution; 5 years firearms prohibition
R v Wicker (Alta Prov Ct, 2007)
"General cruelty" charge re water scalding of own cat necessitating euthanasia. Guilty plea. Abusive childhood.
... 90 days jail intermittent, two year prohibition, two years probation, counselling.
R v Galloro (Ont CJ, 2006)
"General cruelty" and several "inadequate care" counts for neglect of multiple dogs and farm animals by elderly couple in hobby farm. Trial.
... sentencing suspended, two years probation, limitations on number of animals possessed on farm, $13,225 restitution to OSPCA, no prohibition order but OSPCA inspections
(c) Post-April 2008 Cases
R v Munroe (Ont Sup Ct, 2012)
Here are some very useful (and self-explanatory) post-April 2008 sentencing comments of an appeal court in a case of quite serious animal abuse:[90] As noted at the beginning of these reasons, the trial judge sentenced Munroe to twelve months imprisonment and three years probation. In addition, he ordered “psychiatric treatment” as a term of probation and he ordered restitution in the amount of $12,964. This was a substantial sentence, given that the maximum period of imprisonment on summary conviction is eighteen months and given that Munroe was a relatively young first offender with a good work record, a positive Pre-Sentence Report, and a strong supportive family.
[91] The Crown had sought a sentence of six to nine months imprisonment and two years probation. The defence had sought either a six month conditional sentence or an intermittent jail sentence. The sentence imposed was, therefore, significantly in excess of the Crown’s position. The restitution also somewhat exceeded what the Crown had sought.
[92] The trial judge reserved judgment at the end of the sentencing hearing for about a month. He then delivered thorough and careful written reasons for sentence. The Appellant raised a number of grounds of appeal against the sentence imposed. Most of these grounds simply re-argued matters that were well within the trial judge’s reasonable range of discretion. In particular, I would not interfere with what was arguably the trial judge’s most important decision, namely, his refusal to impose a conditional sentence in the particular circumstances of this case. The trial judge reasoned, in substance, that the offences were simply too serious and that they remained unexplained such that a restorative approach, involving use of a conditional sentence, was inappropriate. He stated the following:The sheer and persistent brutality of these offences, the inherent cruelty both to the dogs and to Ms. Cappella, Mr. Munroe’s domestic partner, the lack of any remorse on Mr. Munroe’s part, the absence of a rehabilitative plan and the defencelessness and vulnerability of Abby and Zoe convince me that a conditional sentence would not satisfy the principles of sentence set out in the Criminal Code. These were appropriate considerations and the trial judge’s decision on this issue was neither unreasonable nor does it disclose any error in principle.
[93] However, I am satisfied that the trial judge made one error in principle and that was in determining the length of the custodial sentence. He began by noting that Parliament had recently increased the sentence available for these offences, on summary conviction, from six months to eighteen months, and had also provided for the option of indictable proceedings. These April 17, 2008 amendments to the Criminal Code were in force at the time of the present offences. The trial judge then proceeded to assess the gravity of the particular offences in this case and to set out the applicable sentencing principles. He stated the following:Where do Mr. Munroe’s offences fall within the range of offences prosecutable under sections 445 and 445.1 of the Criminal Code? I can only conclude that they are well within the upper range of offences that would be prosecuted by summary conviction. Put otherwise, any offence substantially more serious than these offences, or even these same offences committed by an offender with a previous record, for example, would most likely be prosecuted by indictment.
When faced with a series of calculated, violent and serious attacks against a pair of defenceless victims entrusted to Mr. Munroe’s care, I must also conclude that specific deterrence is of tremendous importance in this case. General deterrence is also a significant consideration. Parliament has expressed the people’s will in relation to penalties for these offences and it is important that the court not confound that clearly stated intention. That will also requires the court, through both its reasons and its sentence, to denounce Mr. Munroe’s infliction of months of pain and suffering on these two dogs. The nature of the offences is serious and Mr. Munroe’s degree of responsibility is as the relentless driving force behind it. [94] I agree with the trial judge that the gravity of these offences fell “within the upper range of offences that would be prosecuted by summary conviction”. Therefore, a twelve month sentence was an entirely appropriate starting point, when considering offence-based sentencing principles such as denunciation and deterrence. What the trial judge failed to do was to continue his analysis by then acknowledging that the length of the custodial sentence, in the case of a first offender with Munroe’s strong antecedents, “should be as short as possible” and should be determined only after “consideration [is] given to the rehabilitation of the offender”. The Court of Appeal recently summarized the law on this point in R. v. Batisse (2009), 2009 ONCA 114 (CanLII), 241 C.C.C. (3d) 491 at paras. 32-34 (Ont. C.A.):The principle of restraint operates in three ways in the present case. First, it is an important consideration because the appellant was a first offender. As such, the restraint principle requires that the sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 110 C.C.C. (3d) 289 (Ont. C.A.).
Second, the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas (2006), 2006 CanLII 2610 (ON CA), 207 O.A.C. 226 at para. 5:[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant. In serious cases and cases involving violence, rehabilitation alone is not the determinative factor – general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in R. v. Dubinsky, (2005), 2005 CanLII 5668 (ON CA), 64 W.C.B (2d) 230 at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender. [Emphasis added]. [95] This is the approach that the Crown had taken, stressing the gravity of the offence but recommending a shorter range of sentence of six to nine months, given Munroe’s status as a relatively young first offender with excellent antecedents, a good Pre-Sentence Report, and strong family support. In short, the trial judge erred in over-emphasizing denunciation and deterrence and in failing to apply the principles set out above in Batisse.
[96] I am satisfied that a sentence of six months imprisonment, for this offence and this offender, achieves the proper balance of denunciation, deterrence and rehabilitation. The sentence is in addition to thirteen days of pre-trial detention, spent in protective custody, making it effectively a seven month sentence. There are few precedents to guide the appropriate range of sentence in a case like this, given the recent legislative change in the available penalties. However, two cases are helpful. In R. v. Power (2003), 2003 CanLII 20379 (ON CA), 176 C.C.C. (3d) 209 (Ont. C.A.), the Court upheld a ninety day sentence under the old legislation for the torture and killing of a cat. It was described as “within the category of worst offence” and as a case of “torture for torture’s sake”, albeit committed by a first offender who had pleaded guilty and expressed remorse. An effective sentence of seven months in the case at bar is more than double the sentence in Power. In R. v. Connors, [2011] B.C.J. No. 168 (Prov. Ct.), Quantz J. imposed an effective sentence of six months imprisonment, under the new legislation, for the violent killing of a dog by blunt force trauma. The dog suffered many similar injuries to Abby in the case at bar. The accused was not a first offender and he lacked Munroe’s other positive antecedents. Quantz J. exhaustively reviewed the case law under the old legislation, where discharges, conditional sentences, and short intermittent sentences had routinely been imposed for the cruel and sadistic killing or injuring of cats and dogs. An effective sentence of seven months imprisonment in the present case, for a first offender with Munroe’s otherwise impeccable antecedents, recognizes the change in the appropriate range of sentence brought about by the April 17, 2008 legislative reforms. R v Rodgers (Ont Court of Justice, 2012)
In sentencing reasons the court here undertook an extensive review of post-April 2008 case law which is well worth reviewing. Unfortunately the reasons have no paragraph numbers, though the relevant passages commence at the first occurence of the phrase "April 2008".
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