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

Ch.1 - Overview

  1. History
  2. The Offences
  3. Elements of an Offence
  4. Defences
  5. Current Legal Developments and Commentary
Note: This looks like an excellent new (at 2016) resource:
National Centre for the Prosecution of Animal Cruelty.
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1. History

The existing Criminal Code provisions respecting animal cruelty are of somewhat ancient Canadian legal heritage (as far as such things go), being present in one form or another since 1892 [following from earlier English statutes such as the Cruelty to Animals Act of 1835].

An interesting (and inexplicably detailed) history of the Canadian animal offences was set out in R v Clarke (Nfld Prov Ct, 2001), as follows:
The Legislative History of Sections 429 and 446 of the Criminal Code of Canada

Section 429:

Section 429 of the Code was originally enacted as section 481, by virtue of Criminal Code, 1892, c.29. The definition of wilfully has remained generally consistent over the last one hundred and nine years, with one exception. By virtue of S.C. 1953-54, c.51, the provision was renumbered as section 371 and the words "or by omitting to do an act that it is his duty to do" were added. In my view these words only apply when the actus reus consists of an alleged omission to act.

Section 446:

Section 446 of the Code was originally enacted as s. 512 of the Criminal Code, 1892, c.29. At that time the offence involved a person who:

(a) wantonly, cruelly or unnecessarily beats, binds ill-treats, abuses, overdrives or tortures any cattle, poultry, dog, domestic animal or bird; or

(b) while driving any cattle or other animal is, by negligence or ill-usage in the driving thereof, the means whereby any mischief, damage or injury is done by any such cattle or other animal; or

(c) in any manner encourages, aids or assists at the fighting or baiting of any bull, bear, badger, dog, cock, or other kind of animal, whether of domestic or wild nature.

By virtue of An Act Further To Amend The Criminal Code, S.C. 1895, c.40, the words "any wild animal or bird in captivity" were added to section 512(a). The section was subsequently renumbered as s. 542 (R.S.C., 1906, c.146).

The element of failing to supply food, water or shelter was added to the definition of the offence by virtue of An Act To Amend The Criminal Code, S.C. 1925, c. 38, s. 12. Section 542(a) was repealed and reenacted as follows:

(a) wantonly, cruelly or unnecessarily beats, binds, ill-treats, abuses, overdrives, tortures or abandons in distress, or having actual possession and control thereof in any way fails to provide and supply food, water and shelter for any cattle, poultry, dog, domestic animal or bird, or wild animal or bird in captivity, so that unnecessary suffering or injury is caused to the same;

As a result of, An Act To Amend The Criminal Code, S.C. 1930, c.11 s. 11, the words "proper and sufficient food, water, bedding, care and shelter" were added to the offence definition.

In 1938 (An Act To Amend the Criminal Code, S.C. 1938, c.44, s. 35) s. 542(a) was repealed. The section was reenacted and the reference to the supply of food, water, bedding, care and shelter was deleted.

In Criminal Code, 1953-54, c.51, section 541 was reenacted as section 387 and the reference to the supply of food, water, care and shelter was returned to the offence definition. In addition the words "suitable and adequate" make their first appearance. This was a change from the wording in 1930, which had referred to "proper and sufficient", food water and shelter.

In the last consolidation of Federal Statutes (R.S.C. 1985, c. C-46) the provision was reenacted as section 446. There have been no amendments since. On March 14th, 2001, Bill C-15, the Criminal Law Amendment Act, 2001, received first reading in the House of Commons. This Act proposes to make significant changes to s. 446 of the Code including adding the words "recklessly" and "negligently" to the offence definitions.
Except amongst the animal 'user' community (ie. farmers, hunters, researchers, etc) the present provisions are usually viewed as lacking substantially behind dominant current societal attitudes towards non-human animals, which generally consider them as sentient beings deserving of respect and varying degrees of protection. Animal rights activists often draw a parallel between earlier European attitudes towards slavery and presently evolving attitudes towards animals.

Consistent with this slave analogy is the inclusion of animals in Part XI of the Code ["Wilful and Forbidden Acts in Respect of Certain Property"] along with such other property offences as mischief, arson and such exotica as 'interference with boundary lines'. Many activists point to this as symbolic of longstanding attitudinal barriers to the advancement of animal legal rights, and low prosecution and conviction rates.

Further, the most severe penalty for any animal offence has always been reserved for animals in their 'property' capacity (ie. the "killing or injuring cattle" offence discussed in Ch.3, s.2 [offence] and Ch.6, s.2 [penalty]). The penalty for the cattle offence continues to exceed that for "general cruelty", even if the injury or death caused is painless.


2. The Offences

While often referred to generally as the "animal cruelty" criminal offences, the term "cruelty" as such forms no part of any of the main animal offences.

The offence which best fits with an anti-'cruelty' purpose is the broad s.445.1(a) "unnecessary pain, suffering or injury" offence, which applies to all animals and birds ["animals" includes reptiles: R v Racicot (Ont Prov Div, 1998)].

Other offences apply in a mixed and partial fashion to criminalize a range of different types of harm to an equally broad and mixed collection of animal sub-categories. The harms can broadly include killing, injury, fighting, poisoning, captive hunting, abandonment, neglect and more, while the range of animal sub-categories to which they apply is also broad, including as it does: cattle, domestic animals, animals 'wild by nature', and animals 'lawfully kept'. Some offences also vary in their application to owners/custodians of animals versus all others. All of these forms of the animal offences are considered in Ch.3 "Main Offences".

Further, like most criminal offences, they can also be committed in ancillary forms such as aiding and abetting, attempt, aiding after the fact, conspiracy, etc. As well, there are the sometimes-overlooked animal aspects of the general criminal offences of 'threatening', 'intimidation' and 'mischief' - all of which may have application. All of these related forms of offence are considered in Ch.5 "Related Offences".


3. Elements of an Offence

Criminal offences are almost universally comprised of two main elements, the "actus reus" and the "mens rea".

Actus reus refers to the physical or behavioural aspect of the crime, which canusually occur by either act or by omitting to do an act when under a duty to do so. For instance, the main cruelty offence requires that a defendant cause "unnecessary pain, suffering or injury" as it's actus reus. The behaviours which are the actus reus of all the animal offences are set out in Ch.3 "Main Offences".

Mens rea is often referred to as the mental element or "intention" aspect of an offence. Courts have held, given the 'stigma' associated with criminal conviction, that some degree of mental element is required. This can range from a full 'intention to cause the prohibited harm' to the 'lesser' intention of negligence.

Mens rea, delving as it must into the murky world of what is in a defendant's mind, is perhaps the most uncertain and ill-defined area of criminal law. Often different offences will have different mens rea requirements attached to them without them being spelled out in the Code. That said, most animal offences are subject to a specific mens rea requirement of "wilfulness", as that term is defined in s.429 of the Code. While in most other criminal law contexts the term "wilfulness" is taken to require 'full' mens rea, the s.429 definition is unique - and particularly complex. The situation is made even more complex by the insertion of mens rea variations in several of the main animal offences, rendered the task of determining the mens rea requirement under each charge an exercise in legal hair-splitting.

These issues are considered extensively in Ch.2 "Mens Rea".


4. Defences

The term "defence" as most people understand it in the criminal law context includes not only such classic defences as necessity, insanity and 'self-defence' (there are more) but also the simple failure of the prosecution to fully prove their case 'beyond a reasonable doubt'. These 'defences' are all available against an animal offence prosecution.

However, adding to the complexity of the criminal animal offences is the additional availability of the broad and ill-defined defence of "colour of right" [CCC s.429(2)]. Originally grounded in property law (and also applicable to other 'property' offences such as arson and mischief), a colour of right defence - if and when it operates - tends to excuse most any 'use' of animals by their owners. While courts have tended to ignore its strict application in egregious cases of intentional cruelty or neglect (perhaps with little legal justification), recently the Ontario Court of Appeal has extended the defence into new areas of quite vague legal 'right' [R v Creaghan, see Ch.4, s.4]. Thankfully for animal rights advocates, the colour of right defence is itself subject to many exceptions.

The net impact of the colour of right defence, in the few instances when it is applied, is to give pause to any would-be prosecutor when facing a situation of abuse by an animal's owner. The colour of right defence is considered extensively in Ch.4 "Colour of Right Defence".


5. Current Legal Developments and Commentary

The most recent amendment [Bill S-203, April 2008] to the Criminal Code animal provisions (passed under a Conservative government) provides a telling and timely case-in-point as to why animal offence prosecutions are only half-heartedly pursued. The S-203 amendments - approved and encouraged by legions of animal user groups and their lobbyists, and opposed by animal rights activists with equal fervour as being ineffectual - reflect the chronic conservative law enforcement mantra that the problem is that animal cruelty penalty provisions were 'too lenient'. In consequence it increased them (mostly to add an indictable five years maximum offence) [see Ch.6: "Penalties"].

IMHO, the critique of Bill S-203 from the animal activist side rightfully attributed the reason for the low conviction rate to the complex substantive law of the existing animal offences. In particular, these include the specialized and often misunderstood "mens rea" (also 'mental' or 'intention' element) of "wilfulness" that applies to the animal cruelty provisions [see Ch.2 where I characterize it as "advertent gross negligence"]. As well, the uncertain role of the poorly-interpreted s.429(2) "colour of right" defence continues to plague robust enforcement of the criminal animal offences.

Animal and other legal activists have long-pressed for the reduction of the specialized [CCC s.429] 'wilfulness' threshold to something more reflective of a higher duty of care to animals which recognize their status as sentient beings. The prime candidates for a 'new' criminal mens rea is simple negligence, or - more properly - "strict liability". 'Strict liability' only requires the prosecution to prove only the behavioural elements of an offence, after which the defendant bears a burden of proving that they acted with "due diligence" (ie. without negligence) to avoid conviction.

In addition to the profound and unremitting opposition of animal-user groups to such changes, the courts have interpreted the Canadian Charter of Rights and Freedoms as requiring a higher level of mens rea for criminal offences which carry a great "stigma". Whether the reduction of mens rea to strict liability in the animal offences would thus bear constitutional scrutiny is uncertain, as animal cruelty is certainly a crime carrying much stigma in our society.

It is perhaps for this reason that we have seen the relative proliferation of provincial 'public welfare' or regulatory animal 'distress' offences [eg. Alberta's Animal Protection Act, and the proposed Ontario OSPCA Act amendments in Bill 50]. Strict liability - absent any 'colour of right' complexities - is a constitutionally-legitimate mens rea standard for the quasi-criminal offences that accompany and support regulatory statutes. Further, regulatory prosecutions are more accessible to the prevalent SPCA-delegated enforcement regimes that exist across the provinces and territories - often not requiring that the prosecutor be a lawyer.

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