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

Chapter 5 - Related Offences


  1. Overview
  2. The General Ancillary Offence Forms
    (a) Overview
    (b) Case Law
  3. Ancillary Forms of the 'Fighting or Baiting' Offence
  4. Uttering Threats
  5. Intimidation
  6. Mischief
  7. Other Offences

________________________________________


1. Overview

Like most criminal offences, the animal offences considered in Ch.3 may be committed in their direct form (eg. defendant illegally kills or injures an animal) or their 'ancillary' forms, where the behaviour is less direct or contributory.

The general 'ancillary' forms of any criminal offence include such things as attempt, counselling, conspiracy, aiding and abetting, accessory after-the-fact and others. As well, the animal offences themselves create one ancillary form of the cruelty 'fighting and baiting' offence. All of these are considered in this chapter.

Also considered in this chapter are the separate but related criminal offences of 'threatening', 'intimidation' and 'mischief', which can sometimes apply to animal situations grounded in inter-human disputes - particularly in human domestic violence situations where animals are the proxy victims of abusers.


2. The General Ancillary Offence Forms

(a) Overview

The Isthatlegal.ca "War Crimes" Guide has a chapter generally explaining the several ancillary forms which can apply to most criminal offences, including:
  • conspiracy
  • attempt
  • accessory after-the-fact
  • counselling
  • "aiding and abetting"
  • common intention
  • compounding
That chapter is sufficiently generic for present purposes and I refer readers to it, with the obvious caution to make allowances for the different context of the two areas of law:

Canadian Law of International Crimes (War Crimes): Ch.7: Ancillary Offences

Readers are cautioned that when considering the ancillary forms of the main animal offences considered in Ch.3, recall that they may be subject to the 'colour of right' defence discussed in Ch.4.

(b) Case Law

. 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.

A conviction was entered on the cruelty charge, as the defendant's claims that he killed the cat out of mercy were rejected. Further, the defendant was also found guilty of cruelty by being a "common intention" party under CCC s.21 by virtue of his abetting of the offence.


3. Ancillary Forms of the 'Fighting or Baiting' Offence

Discussed in Ch.3 ("Main Offences") at s.5 is the s.445.1(b) cruelty-related offence respecting "fighting or baiting" of birds and animals [CCC 445.1(b)]:
Every one commits an offence who

....

(b) in any manner encourages, aids or assists at the fighting or baiting of animals or birds;
I note in that discussion that the offence is actually stated as three separate ancillary forms (ie. "encourages, aids or assists"), while there is no expressly-stated offence of 'fighting or baiting' as such. My conclusion in Ch.3 is that fighting and baiting are either implicitly included in the more general s.445.1(1)(a) cruelty offence, or simply non-existent as they 'can' only be committed by humans in their indirect form.

That is, the offence may be structured in this ancillary way on the theory that any injury or distress caused to animals and birds during fighting or baiting (or what I have in Ch.3 called 'goading' of tethered animals) is actually directly caused by other animals - not by humans. If correct, this particular offence is interesting for its attribution of causal - if not moral - capacity to animals, which otherwise in law are primarily considered almost as animate objects.

Note further that this offence is also subject to a sort of "found-in" reverse onus evidentiary provision whereby "evidence that an accused was present at the fighting or baiting of animals or birds is, in the absence of any evidence to the contrary, proof that he or she encouraged, aided or assisted at the fighting or baiting" [CCC s.445.1(4)]. Like most reverse onus provisions, this aspect of the offence may be constitutionally vulnerable on Charter s.7 fundamental justice grounds.

In any event, readers should have regard to this specific offence as it is treated in Ch.3, s.6. As to specific law respecting its ancillary forms, recourse may be had to the linked discussion at s.2 above.


4. Uttering Threats

The Criminal Code prohibits the making (legally: 'uttering') of threats against not only persons, but also animals and birds that they own [CCC 264.1]:
Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat

(a) to cause death or bodily harm to any person;

(b) to burn, destroy or damage real or personal property; or

(c) to kill, poison or injure an animal or bird that is the property of any person.
Note that this offence is NOT subject to the 'colour of right' Part XI defence that applies to the "main" animal offences discussed in Ch.3. Thus joint ownership of an animal by the defendant and the 'victim' is not a colour of right defence.


5. Intimidation

One positive consequence of the present criminal law treatment of animals as 'property' [by their inclusion in Part XI of the Code: "Wilful and Forbidden Acts in Respect of Certain Property"], is that harm directed against them for the purpose of intimidating humans is a separate criminal offence.

The relevant portions of the 'intimidation' offence read [CCC 423]:
423(1)
Every one is guilty of an ... offence ... who, wrongfully and without lawful authority, for the purpose of compelling another person to abstain from doing anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing,

(a) uses violence or threats of violence to that person or his or her spouse or common-law partner or children, or injures his or her property;

(b) intimidates or attempts to intimidate that person or a relative of that person by threats that, in Canada or elsewhere, violence or other injury will be done to or punishment inflicted on him or her or a relative of his or hers, or that the property of any of them will be damaged; ...
Note that this offence is NOT subject to the 'colour of right' Part XI defence that applies to the "main" animal offences discussed in Ch.3. Thus joint ownership of an animal by the defendant and the 'victim' is not a colour of right defence [full ownership of the animal by the defendant is more complex, but is not necessarily a bar to the commission of the offence.]


6. Mischief

Another positive (?) implication of the treatment of animals as property in Part XI of the Code is that destruction or interference with another's use of their property generally also constitutes the criminal offence of "mischief":
s.430
Every one commits mischief who wilfully

(a) destroys or damages property;

(b) renders property dangerous, useless, inoperative or ineffective;

(c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property, or

(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.
While the animal offences are certainly meant to be tailored for any animal-related harm, some circumstances may arise where they are unsuitable. For instance, killing without "pain, suffering or injury" may occur - thus avoiding the general cruelty offence. If no other animal offence is suitable then the matter may have to have recourse to the generic mischief offence.

Of course, as "mischief" resides in Part XI of the Code, the "colour of right" defence persists.

This was done in the case of R v Pedersen (BC Prov Ct, 2005). In Pedersen, the defendant pled guilty to mischief on allegations of an apparent drunken vengeance killing spree of the human victim's pet poultry flock. The primary method of killing appeared to be decapitation, which (very) arguably may have been considered 'pain-free'.

That said, the facts of Pedersen could easily have supported a "kept non-cattle animals and birds" charge [Ch.3, s.3], However the penalty at that time for that charge was only six months' imprisonment, a $2000 fine - or both. On the other hand, the penalty for the applicable form of mischief at the time was higher (two years imprisonment if proceeding by indictment). Assuming they weren't just unfamiliar with the animal offences, this may have persuaded the police/Crown to proceed in this fashion.


7. Other Offences

A - perhaps unique - involvement of an animal in the criminal offence of 'assault with a weapon' occured in R v TB (OCJ, 2003). In this case - which also involved a collateral general cruelty offence (which was dismissed on dubious reasoning) - the (upheld) assault/weapon allegation was that the dog WAS the weapon. The case is discussed more fully in Ch.3. s.4(h).

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