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Animals and the Criminal Law (Canada)
(01 January 2015)

Chapter 3 - Main Offences


  1. Overview
  2. Cattle
    (a) The Provision
    (b) Discussion
    (c) Mens Rea
    (d) Case Law
  3. 'Kept' Non-Cattle Animals and Birds
    (a) The Provision
    (b) Discussion
    (c) "Kept for a Lawful Purpose"
    (d) "Without Lawful Excuse"
    .. Discussion
    .. R v DL
    (e) "Maims, Wounds, Poisons or Injures"
    .. R v Presnail
    (f) Trespassing Dogs
    .. Current Law
    .. Yuke v Angus
    (g) Mens Rea
  4. General Cruelty
    (a) The Provision
    (b) Discussion
    (c) Mens Rea Modified
    (d) Effect of the "Ownership" Provision on the Colour of Right Defence
    (e) General Case Law
    .. R v Menard
    .. R v JS
    (f) "Pain, Suffering or Injury"
    (g) "Injury"
    (h) "Pain" and "Suffering"
    .. Overview
    .. R v JS
    .. R v TB
    .. R v Shand
    .. R v Linder
    .. R v McRae
    .. R v Presnail
    (i) "Unnecessary"
    .. Overview
    .. R v Pacific Meat Co Ltd
    .. R v Galloro
    .. R v Amorim
  5. Fighting and Baiting
    (a) Overview and Clarification
    (b) "Fighting"
    (c) "Baiting"
  6. Administering Poisonous/Injurious Substances to Domestic or Captive Wild Animals and Birds
    (a) The Provision
    (b) Discussion
    (c) "Without Reasonable Excuse"
    (d) Effect of the "Ownership" Provision on the Colour of Right Defence
    (e) Mens Rea
  7. Captive Bird Shooting (Canned Hunts)
    (a) The Provision
    (b) Discussion
    (c) 'Owner' Form of Offence
    (d) Mens Rea
  8. Injury During Transportation
    (a) The Provision
    (b) Discussion
    (c) Mens Rea Varied
  9. Abandonment or Inadequate Care of Domestic or Captive Wild Animals or Birds
    (a) The Provision
    (b) Abandonment in Distress
    (c) Inadequate Care
    (d) "Custody or Control"
    (e) Case Law
    .. R v Vieira
    .. R v Pryor
    .. R v Bakic
    .. R v Conforti
    .. R v Galloro
    (f) Effect of "Ownership" Element on the Colour of Right Defence
  10. Keeping Cockpits
    (a) The Provision
    (b) Discussion
    (c) Mens Rea
    (d) Effect of "Ownership/Occupier" Element on the Colour of Right Defence
    (e) Duty to Destroy Cocks

________________________________________


1. Overview

This chapter discusses the substantive criminal offence provisions governing animal welfare. commonly referred to generically as the "animal cruelty" provisions. These provisions set out the prohibited "events" which, when caused by the "wilful" acts or omissions of the defendant, constitute the criminal offences - subject of course to available defences. Recall that it is not the "event" alone that constitutes the offence, but also the "wilfulness" of acts or omissions which cause the event, as that term is explained in Ch.2 ["Mens Rea (Wilfulness)"]. It is to these acts or omissions that the "wilfulness" mens rea attaches.

I break these substantive provisions down into the following nine offence charge categories, which are discussed in turn below:
  • Cattle [CCC 444]
  • 'Kept' Non-Cattle Animals and Birds [CCC 445]
  • General Cruelty [CCC 445.1(1)(a)]
  • Fighting and Baiting [CCC 445.1(1)(b)]
  • Administering Poisonous/Injurious Substances to Domestic or Captive Wild Animals [CCC 445.1(1)(c)]
  • Captive Bird Shooting ("Canned Hunts") [CCC
    445.1(1)(d,e)]
  • Injury During Transportation [CCC 446(1)(a)]
  • Abandonment or Inadequate Care of Domestic or Captive Wild Animals [CCC s.446(1)(b)]
  • Cockpits [CCC 447]
Like most criminal offences, they may also be committed in several 'ancillary', or indirect, forms. These are discussed in Ch.5 ["Related Offences"].

Note as well that the mens rea phrasing for several of these provisions can vary somewhat from the "wilfulness" standard discussed in Ch.2. Where I think these variations result in a distinct or different mens rea standards I discuss them below.


2. Cattle

(a) The Provision
444(1)
Every one commits an offence who wilfully

(a) kills, maims, wounds, poisons or injures cattle; or

(b) places poison in such a position that it may easily be consumed by cattle.
(b) Discussion

In the definitions section of the CCC, s.2 defines "cattle" as follows:
cattle means neat cattle or an animal of the bovine species by whatever technical or familiar name it is known, and includes any horse, mule, ass, pig, sheep or goat;
"Neat cattle" are the familiar cows, bulls and oxen of the genus Bos (to which the term 'bovine' also applies). The other listed animals would not be considered "cattle" in lay-usage, but are included within the term for present legal purposes.

Thus the two "events" which this provision targets are [CCC 444]:
    Injury

  • killing, maiming, wounding, poisoning or injuring cattle; or

    Poison Placement

  • placing poison in such a position that it may easily be consumed (by cattle).
Note that "poison placement" does not require that the cattle actually consume the poison, much less any injury to the cattle thereby.

Most criminal charges involving cattle or farm animals are neglect-related ["inadequate care", see s.9(c) below]. While the present "cattle" offence can be 'committed' by way of behavioural omissions such as neglect, it is more directed at active harm or death to cattle by non-owners.

While this provision on its face prohibits the killing of cattle, this is of course done all the time in the cattle industry by their owners. This is the result of the application of the "colour of right" defence discussed in Ch.4.

In contrast to the "Kept Non-Cattle Animals and Birds" provisions discussed in s.3 below, there appears to be no requirement under this provision that "cattle" be 'kept'. Thus it appears to apply to wild and feral animals as well, though as a practical matter this may only apply to wild or feral horses as sometimes exist in Alberta.

(c) Mens Rea

These "cattle" provisions are conditioned by the main "wilfulness" mens rea discussed in Ch.2, which I have characterized as "advertent gross negligence".

(d) Case Law

R v Fuller (OCJGD, 1994) was a "cattle" charge where an acquaintance of the owner of a horse, likely at the behest of the owner, tried to kill it with a sledgehammer. The (now-repentant) owner was the main prosecution witness, and there was a suggestion of attempted insurance fraud on his part (which would have vitiated his colour of right defence), though he openly confessed to inciting the defendant to kill the horse. While 'permission' of the owner may have invited a color of right defence [see Ch.4] to this charge (though not to a cruelty charge), the defendant himself repudiated any involvement whatsoever and the possibility was not raised. The defendant was convicted.


3. 'Kept' Non-Cattle Animals and Birds

(a) The Provision
445(1)
Every one commits an offence who, wilfully and without lawful excuse,

(a) kills, maims, wounds, poisons or injures dogs, birds or animals that are not cattle and are kept for a lawful purpose; or

(b) places poison in such a position that it may easily be consumed by dogs, birds or animals that are not cattle and are kept for a lawful purpose.
(b) Discussion

This provision applies to all "dogs, birds or animals" (other than cattle) that are "kept for a lawful purpose" - and is often applied when dogs are shot while uncontrolled and causing 'nuisance' or property-damage [see (e) below]. It essentially replicates the cattle offences of 'injury' and 'poison placement' for such animals [CCC 445]:
    Injury

  • killing, maiming, wounding, poisoning or injuring; or

    Poison Placement

  • placing poison in such a position that it may easily be consumed (by dogs, birds or non-cattle animals).
(c) "Kept for a Lawful Purpose"

An odd result of the "kept for a lawful purpose" wording is that this provision appears to be technically inapplicable to non-cattle animals and birds that are kept illegally, such as those subject to Convention of International Trade in Endangered Species (CITES) or provincial Fish and Wildlife Conversation Act (FWCA) possession restrictions. Similarly, and given the heavy use of the provision for 'trespassing dogs' situations, it is likely that the "kept for a lawful purpose" condition was put in to separate out 'stray dog' cases.

That said, most pain, suffering or injury (though not killing as such) caused to such 'non'-kept animals would likely fall under the "General Cruelty" provision discussed in s.4 below, or the "Abandonment or Inadequate Care of Domestic or Captive Wild Animals" provision discussed in s.9 below. 'Killing' (ie. painless killing) may or may not be covered under other federal or provincial laws, depending on the specific type of animal or bird and the protection afforded it at law.

(d) "Without Lawful Excuse"

. Discussion

There is an additional 'defence' to this offence, the provision being conditioned by "wilfully AND WITHOUT LAWFUL EXCUSE". Normally of course any criminal offence may avail itself of any "lawful excuse" as a defence, so difficulty exists in giving meaning to this express mention of it - it being a principle of statutory interpretation that all distinct terms must be given distinct meaning.

In Ch.4 I cite this additional defence as a good reason to read the broad and ill-defined "colour of right" defence down narrowly to its original 'property' form. Thus the present use of the term "lawful excuse" obtains meaning as a NON-ownership right, such as provincial legislation, licensing or other legal 'permission'. The best example of such a "lawful excuse" defence may be that discussed at sub-sec. (f) below respecting "trespassing dogs".

. R v DL

R v DL (Alta Prov Ct, 1999) involved one count of general cruelty and one of killing a "kept non-cattle animal or bird" (a cat) against a young offender. Fact-findings were that the young owners of an adopted cat requested acquaintances to 'get rid' of it, which they took to mean 'kill it'. Another boy manually strangled the cat, followed by striking its head three times, and then by kneeling on it which broke its bones. It was then that the defendant became directly involved, beating the cat with a hockey stick at which point it died.

The "kept animal" charge was dismissed on the grounds that, while the cat was a 'kept animal' the killing was authorized by the owner and therefore "lawful excuse" existed. However on this issue the court stated:
Though the cat's owners were able to authorize its death, they were not able to authorize criminal acts. The owner of an animal may be able to condemn it to death, but the owner is not able to authorize a method of death the carrying out of which would contravene the criminal law. In other words, an owner cannot legally authorize the putting to death of his or her animal in a manner which violates section 446 of the Criminal Code.

Likewise, an owner of an animal can authorize its maiming, but cannot authorize a method of maiming that violates section 446 of the Code. For example, an animal's owner might authorize the amputation of a dog's leg as part of medical treatment administered by a veterinarian. The amputation would constitute a maiming of the animal, but the method of amputation would not be contrary to section 446.

...

The authorization of the cat's owners to kill the cat could not give C.A. or D.L. the lawful authority to cause unnecessary pain, suffering or injury to the animal. The legal authorization of C.A. and D.L. to kill the cat could not excuse violations of section 446. The acts perpetrated upon the cat when it was in the kitchen clearly violated section 446.
(e) "Maims, Wounds, Poisons or Injures"

. R v Presnail

R v Presnail (Alta Prov Ct, 2000) involved one general cruelty count and one wounding, maiming or injuring a "kept non-cattle animal" count. It involved the brutal abuse of a woman's cat by her boyfriend. On finding the cat had defecated and urinated on the couch that he intended to sleep the defendant threw the cat against the wall, and then out of a third floor balcony. He then followed it downstairs and continued to abuse it by kicking it. It was also held as a fact that at some point he tried to break it's neck. The cat was expected to survive.

On the "kept animal" count the court first considered the meaning to be given to "maim" as it occurs in s.445. On concluding that the law supported a meaning of permanently rendering the victim unable to defend itself, and on evidence that the cat would recover, no "maiming" was found.

The court then proceeded to consider the issue of whether the cat was "wounded". It held that the law allowed a wound to be non-permanent, and further quoted from Halsbury's Laws of England as follows:
In order to constitute a wounding there must be an injury to the person by which the skin is broken; the continuity of the whole skin must be severed, not merely that of the cuticle or upper skin. The skin severed need not, however, be external, but it is not sufficient to prove merely that a flow of blood was caused, unless there is evidence to show where the blood came from. It is not necessary that any instrument should have been used, as an injury caused for instance by a kick may be a wounding.
While bleeding was found as a fact, "wounding" by this definition had not.

The court then considered "injury", and by applying a common sense meaning to the term, found that it was supported by the facts. A conviction was thus entered on the "kept animal" charge.

(f) Trespassing Dogs

. Current Law

As noted above, the most prominent example of a "lawful excuse" might be the following provision from the provincial Livestock, Poultry and Honey Bee Protection Act:
s.2
Any person may kill a dog,

(a) that is found killing or injuring livestock or poultry;

(b) [Repealed]

(c) that is found straying at any time, and not under proper control, upon premises where livestock or poultry are habitually kept.
Relevant statutory definitions for this provision are:
"injured" in respect of livestock or poultry means injured by wounding, worrying or pursuing, and "injury" has a corresponding meaning;

"livestock" means cattle, fur-bearing animals, goats, horses, rabbits, sheep or swine;

"poultry" includes game birds where game birds are kept pursuant to a licence under the Fish and Wildlife Conservation Act, 1997;
. Yuke v Angus

Yuke v Angus (Ont Prov Ct, 1995) was an interesting "kept non-cattle animals and birds" private prosecution involving the admitted killing of the private prosecutor's dog which was trespassing on the neighbour defendant's property. The neighbour kept cattle, but the dog was not close to them.

The court considered two defences, one under the common law (killing dog while it attacks is justified) and the other statutory, under the Livestock, Poultry and Bee Protection Act, s.2.

The common law defence was dismissed on the fact that no attack was taking place, the court quoting from R v Comber (Ont Co Ct, 1975):
There are certain occasions when a dog may be lawfully killed and it has been held that where it is attacking domestic animals, the owner of such animals is entitled, if he catches the dog in the course of such attack, to protect his property by killing the dog. However, once the attack is over, he is not entitled to follow the dog to its place of residence or indeed, I rather gather from the authorities, is he entitled to shoot the dog unless it is in the act of attacking the animals in question.
The statutory defence was grounded in s.2 of the Livestock, Poultry and Bee Protection Act, which read at that time:
2. Any person may kill a dog,

(a) that is found killing or injuring livestock or poultry;

(b) that in a township or village is found between sunset and sunrise straying from the premises where the dog is habitually kept;

(c) that is found straying at any time, and not under proper control, upon premises where livestock [or] poultry are habitually kept.
[* note that sub-sec (b) was repealed in 2002, but that the remainder of the provision is identical today]

Focussing on sub-sec. (c), the court distinguished it's application to the facts at hand on the reasoning that the term "premises" did not equate with "property", and that the area where the dog was shot - while part of the defendant's property - was not in fact "premises where livestock or poultry are habitually kept". A conviction was therefore entered.

While it was not material to the case, the court commented that if the killing were justified, there was no requirement of a warning shot before a killing shot. Other cases cited in Yuke suggest a dog-lenient interpretation of (c) in such circumstances.

(g) Mens Rea

These 'kept animal' provisions are conditioned by the main "wilfulness" mens rea discussed in Ch.2, which I have characterized as "advertent gross negligence".


4. General Cruelty

(a) The Provision
445.1(1)
Every one commits an offence who

(a) wilfully causes or, being the owner, wilfully permits to be caused unnecessary pain, suffering or injury to an animal or a bird;

- and -

445.1(3)
For the purposes of proceedings under paragraph (1)(a), evidence that a person failed to exercise reasonable care or supervision of an animal or a bird thereby causing it pain, suffering or injury is, in the absence of any evidence to the contrary, proof that the pain, suffering or injury was caused or was permitted to be caused wilfully, as the case may be.
(b) Discussion

This "general cruelty" offence is the most commonly-prosecuted of the animal offences, and certainly the most well-known. It is commonly referred to as the "animal cruelty" provision, even though 'cruelty' as such forms no part of its legal definition. Rather the offence relates to "unnecessary pain, suffering or injury" (which I will refer to collectively as "harm") [CCC s.445.1(1)(a)].

Further confusion arises as courts (and case head-notes) frequently cite "animal cruelty" in their preamble to Reasons for Decision, even though the actual charges involved are from the other animal provisions considered in this chapter.

The "genereal cruelty" offence applies to all animals and birds, irrespective of their status as domestic, kept, feral, wild or otherwise.

The provision is split into two forms, as follows:
Owners Permitting

  • owners permitting to be caused "unnecessary pain, suffering or injury to an animal or a bird";

    Anyone Causing

  • anyone (including owners) causing "unnecessary pain, suffering or injury to an animal or a bird".
  • (c) Mens Rea Modified

    This 'cruelty' provision is conditioned by the main "wilfulness" mens rea discussed in Ch.2, which I have characterized as "advertent gross negligence".

    However, "evidence" that a person "failed to exercise reasonable care" or supervision of an animal or a bird thereby causing it pain, suffering or injury" creates a rebuttable presumption that the harm was "wilfully" caused, or (in the case of an owner) permitted to be caused [CCC s.445.1(3)].

    This harkens back to issues discussed at length in relation to the 'wilfulness' mens rea standard in Ch.2. Essentially, on proof of 1. negligence, 2. harm and 3. causation of harm, the mens rea element of 'wilfulness' will be presumed - subject to evidence to the contrary (ie. a 'rebuttable presumption'). Of course, "wilfulness" may still be proven fully without recourse to this provision, this just offers a way to do it more easily.

    This 'short-cut', when applied, makes the offence partially similar to what has been discussed in Ch.2 as a "strict liability" offence, in that it is triggered initially by a showing of causation of the harm (ie. the prohibited event) - and offering the defendant the possibility of avoiding conviction if they meet their burden of showing "due diligence" (ie. non-negligence).

    This provision was considered in R v Shand (OCJ, 2007). There the court stated: "(e)vidence to the contrary that is adduced to rebut the presumption in s. 446(3) [now 445.1(3)] with respect to a charge under s. 446(1)(a) [now 445.1(1)(a)] must tend to show that the accused did not wilfully cause or permit unnecessary suffering. The standard of proof that must be met to rebut the s. 446(3) presumption is reasonable doubt [R v Boucher [2005] SCJ # 73]."

    (d) Effect of the "Ownership" Provision on the Colour of Right Defence

    In Ch.4 I discuss at length the "colour of right" defence [CCC s.429(2)] that is generally available to all of the main animal offence provisions discussed in this chapter. In that discussion I reach the conclusion that it is at heart a 'property' or ownership defence. This is consistent with it's application in s.3 above, justifying cattle owners in humane slaughter of 'owned' animals.

    However, as the main cruelty offence discussed here expressly establishes a separate offence for "owners" (ie. "permitting ..."), the best legal conclusion seems to be that the 'colour of right' defence is not available for this provision - as otherwise to allow it would render the 'owner' form of the offence meaningless. Of course, the defence is not available to the 'anyone' form of the offence either, as they would not be able to claim any owner authorization for the harm.

    That saidm, the "colour of right" defence may still have application in its more generic form: ie. "an honest belief in a state of facts which, if it existed, would be a legal justification or excuse", but in that form is little different from a "mistake of fact" defence, which is available to any criminal charge.

    (e) General Case Law

    . R v Menard

    Perhaps the most authoritative criminal animal case in Canada is R v Menard (1978) 43 C.C.C. (2d) 458 (Que CA), likely due to the judge: Lamer J (who went on to lead the Supreme Court of Canada for years). The case was a general cruelty conviction against the gassing euthanasia of pound dogs by use of motor vehicle exhaust. A conviction was entered on evidence that the dogs were burned in this fashion before they died and that mitigating technology was available at relatively low cost.

    The case is noteworthy in part for the following general commentary on the relationship between humans and animals:
    Within the hierarchy of our planet the animal occupies a place which, if it does not give rights to the animal, at least prompts us, being animals who claim to be rational beings, to impose on ourselves behaviour which will reflect in our relations with them those virtues we seek to promote in our relations among humans. On the other hand, the animal is inferior to man, and takes its place within a hierarchy which is the hierarchy of animals, and above all is a part of nature with all its "racial and natural" selections. The animal is subordinate to nature and to man. It will often be in the interests of man to kill and mutilate wild or domestic animals, to subjugate them and, to this end, to tame them with all the painful consequences this may entail for them and, if they are too old, or too numerous, or abandoned, to kill them. This is why, in setting standards for the behaviour of men towards animals, we have taken into account our privileged position in nature and have been obliged to take into account at the outset the purpose sought. We have, moreover, wished to subject all behaviour, which would already be legalized by its purpose, to the test of the "means employed". Thus, para. (a) of s-s. (1) of s.402 [now s.445.1(1)] is not only of general application, but normalizes human behaviour from these two points of view: the purpose and the means. While ss. 400 and 401 of the Criminal Code have been enacted to condemn interference with the rights of the owners of certain animals, s. 402 was enacted for the protection of the animals themselves, including those, who through the interests of their owners, are protected in part by ss.400 and 401.
    . R v JS

    R v JS (Nfld Prov Ct, 2003) [Gorman J, same judge as R v Clarke] was a "general cruelty" case against a young offender. The Crown's evidence alleged the shooting of a crow with a pellet gun and the subsequent abuse of the still-alive and vocalizing bird by dragging and tying it by the neck to be swung repeatedly for a dog to catch. The defendant denied most of this, though admitted observing some abuse by others, and some direct participation in leaving the bird in the ocean. While the court engaged in an extended consideration of the meaning of "unnecessary" pain, suffering and injury, an acquittal was entered on doubt as to the identity of the defendant.

    In the case, Gorman J - prone to "unnecessary" (though cogent) expounding on immaterial issues - stated as follows on Menard:
    [R v] Menard [Que CA, 1978] was considered in R. v. McRae, [2002] O.J. No. 4987 (O.C.J.). In McRae, the following principles were said to flow from the analysis contained in Menard:

    a. The accused must be identified beyond a reasonable doubt as the person who caused the pain, suffering or injury to the animal or permitted it to be caused.

    b. There are circumstances in which it is not a criminal offence to cause pain, suffering or injury to an animal.

    c. The pain, suffering or injury must be caused wilfully, that is, voluntarily and intentionally or as provided by s. 429(1) of the Criminal Code of Canada.

    d. With respect to the degree of pain or suffering caused to an animal by an accused, the Crown need prove beyond a reasonable doubt only that it caused the animal something more than "the least physical discomfort." [author's emphasis]

    e. Once that threshold has been met, then one must consider the means by which and the purpose for which the pain, suffering or injury was caused to decide whether it was caused "unnecessarily."

    f. In determining whether or not pain, suffering or injury was caused to an animal "unnecessarily", it is appropriate to consider both the means employed and the purpose for which the pain, suffering or injury was caused, and also the relation between the purpose and the means.

    g. In some cases, the purpose may be legitimate, but the means employed may not be.

    h. This determination should involve a consideration of all the surrounding circumstances.
    (f) "Pain, Suffering or Injury"

    With respect to the separate "pain, suffering or injury" components set out in the general cruelty offence, Gorman J in R v JS (Nfld Prov Ct, 2003) stated:
    For a conviction to be entered pursuant to subsection 446(1)(a) [now 445.1(1)(a)] of the Code, the Crown need only prove the existence of pain, suffering or injury. Thus, the Court must be careful not to interpret these separate words in a manner which fails to differentiate between them. To define injury as meaning to suffer would for instance, unnecessarily restrict the scope of this provision. Certainly, an animal can suffer pain without suffering an injury. Therefore, the word injury, in the context of subsection 446(1)(a) of the Code, must be interpreted so that pain or suffering are not necessarily included.
    (g) "Injury"

    Of the three cruelty conditions of "pain, suffering and injury", "injury" alone is an objective standard, ascertainable from observation and veterinary evidence alone. It may be this evidence-friendly quality that accounts for the lack of judicial consideration of the term, such cases resulting in quickly-processed guilty pleas.

    Nonetheless the term has been assessed in relation to its related conditions, "pain" and "suffering" (below.)

    (h) "Pain" and "Suffering"

    . Overview

    While "injury" (above) is relatively ascertained by 'objective' physical examination of an animal, the remaining duo of "pain" and "suffering" are inherently subjective (ie. felt only by the 'victim' themselves). Pending the development and use of biometric measures of pain to establish the validity of the conditions in animals, courts sometimes flounder with the issue. While courts in human victim situations have little difficulty inferring it from circumstances, this is not always the case with animals.

    . R v JS

    The above-quoted case of R v JS (Nfld Prov Ct, 2003) is a good example of this. JS involved a live shot crow allegedly abused by children who tied it on a rope and swung it for a dog to catch, during which it vocalized loudly. Gorman J stated the following with respect to the Crown's evidence:
    In this case, the Crown has not presented any evidence that the crow was injured. Therefore, the question becomes: has it proven that pain or suffering was inflicted upon the crow?

    The Oxford English Dictionary, at Volume VII, page 377, includes the following as part of its definition of the word "pain":

    A primary condition of sensation or consciousness, the opposite of pleasure; the sensation which one feels when hurt (in body or mind); suffering, distress.

    I am not convinced that Ms. K. is able to distinguish between the sound a crow normally makes as compared to the sound that one in pain makes. She provided no explanation as to how she was able to distinguish between the two.

    The Crown seeks to have the Court draw an inference of pain or suffering from the manner in which the crow was treated. Though the crow was treated in an unacceptable and shabby manner, this is not the same as the causing of pain and suffering. It must be remembered that the Crown has the onus of proving this element of the offence beyond a reasonable doubt and that J.S. is charged with a criminal offence (see McRae, at paragraph 22).
    That said, the court continued to find "pain" on evidence of physical abuse.
    I am satisfied that dragging a crow along the ground and allowing a dog to catch it in its mouth would cause pain to the crow. Therefore, this element of the offence has been established and I need not attempt to define the effect of the word "suffering."
    The court in JS may have been persuaded on the vocalization issue alone had expert veterinary evidence on the issue been presented, although how such an expert could verify the bird's subjective state better than a layperson is uncertain. Sentience of animals and birds is well-accepted in science, as it is in law (implicitly by virtue of the existence of animal cruelty crimes). It is to be hoped that in future courts will apply the same inferences they do when making such attributions to human suffering, so that judicial notice of pain and suffering from similar circumstances becomes commonplace.

    . R v TB

    And on the even less-progressive end of the spectrum we find R v TB (OCJ, 2003), an interesting young offender case involving numerous assault counts including assault with weapon (ie. a dog), and a collateral general cruelty charge. The cruelty count was that the defendant:
    ... unlawfully did willfully cause unnecessary suffering to a dog, by bringing the dog to an overly crowded situation, and enticing the dog to attack, wherefore the dog had to be beaten in order to fend off its attacks, contrary to s. 446(1) (a) of the Criminal Code of Canada.
    The court commented on the 'dog as weapon' aspects of the case, finding that it was supported in law if the defendant had "control or decision-making capacity" over the dog. Finding as a fact that the dog would respond to attack commands by the defendant, the court convicted on those. However the court dismissed the cruelty ("unnecessary pain, suffering and injury") charge stating:
    On the animal cruelty count, it is highly particularized, as I have previously read it. I have a reasonable doubt about the defendant's mens rea on this count, that when he unleashed the dog on people, that he would have the foreknowledge or the objective degree of foreknowledge that the dog would have to be beaten to fend off its attacks. And further I am in a state of reasonable doubt as to whether or not the dog was caused unnecessary suffering within the meaning of the word. The evidence on this point is somewhat lacking. It is clear that the dog was hit with bottles, the dog was kicked and it was punched directly in the face. As to the effect upon the dog, one only knows that the dog ceased its attack on Eddie Alessi when it was hit, ceased jumping up on the car when it was kicked, evinced a little cry but that the dog was taken away from the scene.

    Although the owner of the dog testified and Daniel Cusatti who took the dog away testified, there was no evidence adduced as to any injury caused to this dog per se. And thus there is a reasonable doubt on both of those essential elements on count number six and there will be a finding of not guilty.
    How "clear" fact-findings "that the dog was hit with bottles, kicked and punched directly in the face" do not translate into at least one of "pain, suffering or injury" is quite simply astounding. For that matter, so is the similar reasoning that the dog being beaten was not foreseeable once it was set on people. The TB case may be rightly pointed to as a poster-child for the view that animal cruelty offences are given little serious consideration by some courts, as they are by some persons. This view is certainly manifest in the sentencing accorded even egregious (indeed, 'holocaust'-like) instances of animal abuse: see Ch.6 "Penalties".

    . R v Shand

    On the more animal-sympathetic end of the cases is R v Shand (OCJ, 2007). Shand involved the discovery, after a tenant eviction, of the tenant's plainly medically-neglected dog. Charges of "general cruelty" and "inadequate care" were brought. The court convicted on the "inadequate care" charge on the conclusion that the defendant was 'either reckless or indifferent' as to the medical care of the dog, though finding as a fact that she did not intend suffering - which [somehow] grounded dismissal of the general cruelty charge. That said, the court did find "pain or suffering" as a fact on the evidence respecting discomfort from an untreated, neglect-related skin condition.

    . R v Linder

    R v Linder (BCCA, 1950) was a criminal "abuse" charge under a now-repealed provision. It involving a rodeo 'bucking' horse, and the issue was whether the use of a "flank strap", which irritated the horse and thereby intensified it's bucking was abusive and caused unnecessary suffering. The provision read:
    Everyone is guilty of an offence ... who

    (a) wantonly, cruelly, or unnecessarily ... abuses ... any ... domestic animal ... or who by wantonly or unreasonably doing ... any act, causes any unnecessary suffering ... to any such animal."
    A trial conviction was reversed by the Court of Appeal, it stating that:
    In my opinion the intent of the section is to make it an offence to cause unnecessarily substantial suffering to any animal.

    .....

    The facts as found by the learned judge do not in my opinion amount to a finding that pain was inflicted upon the horse or that it suffered substantially by the manner in which the bucking strap was used, nor does the evidence adduced below, in my opinion, justify a finding that the use of the strap did more than "excite or irritate the horse to more strenuous bucking". No injury was thereby inflicted even to the extent of causing an abrasion of the animal's skin.
    . R v McRae

    R v McRae (Ont Sup Ct, 2002) was a Crown appeal from a general cruelty dismissal. The case involved five counts with numerous allegations over several days. The allegations were that the defendant owner had kicked his dog, hit her with various objects (including a plastic pipe) and thrown her. Evidence was that the dog barked and yelped during the assaults. Veterinary evidence showed no serious injury. The appeal court upheld the acquittals, finding that the level of suffering required was not proven.

    Reasons from the trial court are in part quoted here:
    I am unable to conclude that there is sufficient evidence before me to establish beyond a reasonable doubt that Mr.McRae willfully caused unnecessary pain or suffering. The threshold is a high threshold. The onus of proof is on the Crown. The evidence before me would require me to base a finding of guilt on inferences. The inferences are simply in this case not strong enough. I cannot infer from the sound that someone has heard the dog make that there is, on the evidence before me, unnecessary pain and suffering.
    The appeal court cited Menard for the proposition that the threshold level of again or suffering must rise above "the least physical discomfort", and - while disagreeing with the trial court that this was a 'high' threshold, was not prepared to interfere with her conclusion in the case:
    I cannot agree with the trial judge that the threshold is a high one. With respect to the issue of whether the respondent caused any pain or suffering to his dog, the onus was on the Crown to meet the normal onus of proof beyond a reasonable doubt and to establish that by his actions the respondent caused the dog something more than "the least physical discomfort." In other words, the Crown had to prove that the respondent caused "pain or suffering" to his dog that rose above the minimal level of "the least physical discomfort", and attained a level or degree of physical hurt of some greater significance, although it need not be severe.
    . R v Presnail

    R v Presnail (Alta Prov Ct, 2000) involved one general cruelty count and one wounding, maiming or injuring a "kept non-cattle animal" count. It involved the brutal abuse of a woman's cat by her boyfriend. On finding the cat had defecated and urinated on the couch that he intended to sleep the defendant threw the cat against the wall, and then out of a third floor balcony. He then followed it downstairs and continued to abuse it by kicking it. It was also held as a fact that at some point he tried to break it's neck. The cat was expected to survive.

    On the general cruelty charge the court convicted, stating:
    The evidence leaves no doubt that the cat felt pain, and was injured as a result of the unlawful acts of the accused. The only possible inference from the evidence is that it suffered. Since all the pain, suffering, and injuries were not in furtherance of a lawful purpose, they were, by definition, "unnecessary".
    (i) "Unnecessary"

    . Overview

    The Menard case [discussed in (e) above], stands for the principle that the duty to avoid "unnecessary pain, suffering and injury" involves a positive burden of effort and expense on the humans involved to mitigate harm - albeit one of uncertain magnitude. There it was a duty to install simple technology which would eliminate burning caused by use of automobile exhaust as a euthanasia agent on dogs.

    The R v JS case [citing Menard, above] is further support for the view that "unnecessary" involves a moral means-end [ie. animal-harm v. human purposes] balance reminiscent to that embodied in s.1 of the Charter [the "Oakes" test]. Re-quoting from JS, above:
    • In determining whether or not pain, suffering or injury was caused to an animal "unnecessarily", it is appropriate to consider both the means employed and the purpose for which the pain, suffering or injury was caused, and also the relation between the purpose and the means.

    • In some cases, the purpose may be legitimate, but the means employed may not be.

    • This determination should involve a consideration of all the surrounding circumstances.
    That said, the means-end balance from Oakes is without doubt the least-applied of the s.1 'balancing' tests when it comes to findings of constitutional invalidity. The reasons for this are the combined unpalatability of judicial intervention into areas of legislative value-judgments, and the uncertainty of the ground onto which the values balancing forces the court.

    Similar judicial difficulties, albeit without the legislative v judicial tension, are plainly at work in the "unnecessary" criterion. Indeed, it sets an uncertain standard that would likely be little tolerated in other criminal contexts. Overly "vague" criminal offences may not be 'saved' by s.1 of the Charter in that they are not "prescribed by law" under the provision (although the higher courts have retreated from aggressive assertion of this principle lately).

    It seems obvious that the lack of jurisprudence giving meaning to the term "unnecessary" is due to the lack of any robust form of animal interest "standing" in such cases. At the highest the animal interest can perhaps only ever be advanced by proxy through SPCA societies, themselves not even under any formally-acknowledged fiduciary role with respect to animals.

    For these reasons, it may be instructive - in
    informing the meaning of the general cruelty term "unnecessary" - to have regard to another highly-politically and morally-charged area of law, that of obscenity. In R v Butler (SCC, 1992), the Supreme Court of Canada, in interpreting the analogous term "undue" [exploitation of sex], shifted from a traditional jurisprudential mode to one acknowledging the reality of changing moral standards. It openly gave lower courts permission to have regard to public views in the form of a "community standard of tolerance" harm test. This test, at least in the obscenity context, is inherently moral - in the sense of judgment of other person's behaviour - although it is stripped of a puerile element by the requirement that the moral judgment be harm-based.

    On the other hand, the essence of a 'community standard' test is an abdication of rationality as the guiding criteria. While initially this might be considered anathema, it is quite akin to the already-accepted irrationalities of 'bringing the administration of justice into disrepute' embodied in the evidence-exclusion provisions of s.24(2) of the Charter, and in Criminal Code bail tests.

    . R v Pacific Meat Co Ltd

    On this theme - and perhaps a future candidate for an example of the speed that community standards change - is the treatment of "unnecessary" by the court in R v Pacific Meat Co Ltd (BC Co Ct, 1957). This was a general cruelty "unnecessary pain, suffering and injury" case involving a hog slaughterhouse. The facts involved their slaughter by throat-cutting, preceded by the hoisting of the pigs by shackles attached to one leg, resulting in them hitting a wall with some force.

    The court grudgingly noted that the defendant
    had conceded the occurence of pain, though the court alone apparently was not satisfied as to that fact on the absence of expert evidence. On then considering "unnecessary", and accepting evidence that the method of slaughter used was very widely practiced, the court stated:
    Hogs fulfil a purpose of providing food for human beings. Before the hogs can be eaten by mankind they must of necessity be killed, so that the fatal injury that is administered to each hog by the "sticker" is a necessity and therefore not "unnecessary."

    .....

    In my view, if someone who was not employed in a slaughter house was to shackle a hog as described in this case, and if such a person hoisted the animal as herein described, just to hear it squeal or for any other sadistic reason, and if evidence was adduced that the hog in fact suffered pain in the process, then I would hold that such pain and suffering was "unnecessary" and that such a person would be guilty. But I am dealing with a case involving two human individuals whose regular employment involves the necessity of slaughtering hogs to provide food for mankind.
    The decision did not clearly distinguish the two potential forms of the offence, ie. the hoisting and then the throat-cutting, however the accepted evidence was clearly that the throat-cutting was relatively painless and that death ensued quickly afterwards. It is therefore a reasonable assumption that the court considered any pain and suffering involved in the hoisting process to be 'necessary'. There was no consideration of any alternative slaughtering methods not involving hoisting.

    . R v Galloro

    R v Galloro (OCJ, 2006) involved both "general cruelty" and "inadequate care" charges respecting dogs and some farm animals on an elderly couple in a "hobby farm". There was a history of prior and related OSPCA orders. Convictions were entered against each of them, though not all on the same charges. One of the cruelty charges related to a misguided effort by one of the defendants to relieve epilepsy by lacerating a dog's ears to reduce blood build-up.

    On the "general cruelty" charge the court stated, with respect to the meaning of "unnecessary", that:
    What constitutes "unnecessary" pain, suffering or injury is determined by the circumstances of each case including the purpose of the act, the social priorities, and the means available to accomplish the purpose. R. v. Menard (1978), 43 C.C.C. (2d) 458 (Que. C.A.). If the pain or suffering could have reasonably been avoided while effecting the lawful purpose in the circumstances of the case, then that pain or suffering was unnecessary. R. v. D.L. [1999] A.J. No. 539 (Alta. Prov. Ct.) at para. 30.
    On the cutting of the dog's ears, the court stated as follows:
    It is plain that the cutting of both ears with scissors would cause extreme pain and suffering to any animal. The medical evidence shows that the injury inflicted to the dog's ears by Mrs. Galloro did in fact cause pain and suffering. Despite her other medical problems, the evidence of both doctors cites the trauma to both ears as a significant injury. Sadly, the pain and suffering caused was completely unnecessary.

    While I accept that Mrs. Galloro must have had some other purpose than to simply torture the dog, she knew that cutting the dog's ears with scissors would cause severe pain. She also knew that such an extreme procedure was not necessary as she had ready access to proper veterinary care from a number of sources. She none-the-less chose to attempt a bizarre home remedy of her own invention, with complete disregard to the pain she knew it would cause the dog and knowing that previous cutting of the ears had not stopped the seizures. In Exhibit #8 Mrs. Galloro stated that she did this in a panic, but the findings of prior similar wounds by Dr. Mehti show that she had in fact previously engaged in this practice.

    Mrs. Galloro wilfully caused pain to Pina as alleged. The act was intentional and she knew that it would be extremely painful for the dog. There was no medical reason to inflict that injury. There was no necessity for her action nor does the evidence leave any doubt as to a reasonable excuse or justification.
    There was no apparent consideration of this behaviour as a "mistake of fact" defence, excusing the defendant if she had an honest belief in the 'treatment'.

    . R v Amorim

    R v Amorim (Ont Prov Ct, 1994) was a general cruelty charge against the owner of a dog. The facts were of a young dog chained outside by a doghouse on a relatively short heavy lead for prolonged periods - with fecal accumulation, irregular and inadequate food and water, and constant abnormal barking.

    The court convicted, quoted Lamer J in R v Menard (Que CA, 1978) on the issue of "unnecessary", as follows:
    Thus men, by the rule of ss. 402(1)(a) [the then applicable Criminal Code section], do not renounce the right given to them by their position as supreme creatures to put animals at their service to satisfy their needs, but impose on themselves a rule of civilization by which they renounce, condemn and repress all infliction of pain, suffering or injury on animals which, while taking place in the pursuit of a legitimate purpose, is not justified by the choice of means employed without necessity does not mean that man, when a thing is susceptible of causing pain to an animal, must abstain unless it be necessary, but means that man in the pursuit of his purposes as a superior being, in the pursuit of his well-being, is obliged not to inflict on animals pain, suffering or injury which is not inevitable taking into account the purpose sought and the circumstances of the particular case. In effect, even if it not be necessary for man to eat meat and if he could abstain from doing so, as many in fact do, it is the privilege of man to eat it.

    Considered in terms of the purpose sought the expression "without necessity" must be interpreted taking into account the privileged position which man occupies in nature.

    Considered in terms of the means by which one seeks the purpose which is justified, the expression "without necessity" takes into consideration all the circumstances of the particular case including first the purpose itself, the social priorities, the means available and their accessibility, etc. One does not kill a steer in the same way that one lulls a pig. One cannot devote to the euthanasia of animals large sum of money without taking into account social priorities. Suffering which one may reasonably avoid for an animal is not necessary. In my opinion, in 1953-54 the legislator defined "cruelty" for us as being from that time forward the act of causing (in the case in issue), to an animal an injury, pain or suffering that could have been reasonably avoided for it taking into account the purpose and the means employed.

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