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The CFHS did a full legal analysis of Bill C15B. What follows is an Executive Summary of that analysis. Click here to read the full legal analysis [pdf file: 0.2mb].
Need for Bill C-15B. CFHS, it’s 100 SPCAs and Humane Societies across Canada and their 400,000 members strongly support the Bill C-15B provisions pertaining to crimes against animals. We initiated those changes in order to enable our professionally-trained SPCA inspectors to properly carry out their enforcement duties and police powers, as mandated by provincial SPCA statutes. These are not animal rights initiatives. SPCA inspectors act responsibly to prosecute only serious abuses when warnings or seizures are not effective remedies. Less than 1/3 of 1% of all animal abuse complaints lead to criminal charges. Procedural difficulties, property law concepts and failure by the justice system to accord serious treatment to the existing Criminal Code offences resulted in conviction rates of only 46% in 1997-98 (Statistics Canada). The link between cruelty to animals, domestic violence and murder has become well-known. These cruelty provisions have received rigorous scrutiny by SPCA inspectors, teams of criminal lawyers and prosecutors, amongst many others in the course of 35 seminars and briefs over twenty years. Prevention of cruelty provisions must function effectively – they are the bedrock moral principle forming the foundation of SPCAs. The educational and deterrent aspects are paramount.
Cruelty Vignettes. Neither photographs nor words can adequately depict the horror the public expresses at atrocities committed against animals. See Appendix A for a Summary of Some Typical Cruelty Vignettes indicative of unnecessary suffering inflicted on a wide range of animals.
Support. Public attitudes toward cruelty have evolved since the horse and buggy days of 1892 when Canada first enacted cruelty laws. Over 50% of Canadian households include an animal. Many hundreds of media reports each year and many thousands of petitions confirm the public’s outrage at cruelty cases and the need for Criminal Code improvements. Twenty-seven US states have elevated cruelty from a misdemeanour to a felony offence; seven states did so during 1999.
Cruelty, Not Property [Part V.1]. SPCAs strongly urge that the crimes against animals provisions be removed from the property offences contained in Part XI of the Criminal Code and be reconstituted in a separate Part V.1. In the past, crown attorneys and judges have minimized cruelty where owners argued they were entitled to harm their own property – often resulting in the withdrawal of charges, high acquittal rates and slap-on-the-wrist sentences. Humans will continue to have property law rights over their animals, whether by means of numerous common law cases and provincial statutes, or by means of protections afforded by various criminal offences applicable to theft of an animal [s. 322], cattle rustling and alteration of brands [s. 338] and threatening to injure an animal [s. 364.1 (1) ©]. The cruelty provisions should distinguish sentient animals from chattel property by focussing on the fact that animals can suffer pain and humans owe a moral duty to avoid causing unnecessary suffering – even if the animal is their own property. Prevention of cruelty is a fundamental Criminal Code concept which should not be corrupted by misleading property law concepts. A separate Part of the Code will highlight the true basis for the cruelty offence and provide a signal to the justice system and the public that animals are proper objects of moral concern and that humans must avoid causing unnecessary suffering when mens rea is applicable.
Animal [s. 182.1]. The previously open-ended wording has been restricted to apply only to vertebrates and other animals that have the capacity to feel pain. Previously, a person could theoretically have been charged for cruelty to an insect, worm or fish (although we are unaware of any abusive prosecution, nor would a prosecutor allow it). Now, prosecutors will have a difficult job to prove non-vertebrates experience pain. However, the precise definition of an animal focusses the rationale for a cruelty offence upon an inappropriate causation of unnecessary pain. It will still be necessary for the Crown to prove all the elements of the crime. Farmers and ranchers will lose no rights to protect their cattle from harm.
Cruelty Offences [s. 182.2 (1)]. The Brief provides a detailed legal analysis of the offences which require proof of “wilful or reckless” intent: (a) Cruelty Offence; (b) Vicious Killing; © Killing Without Lawful Excuse; (d) Poisoning an Animal; (e) (f) (h) Promoting Fighting and (g) Shooting Liberated Animals. The Brief analyzes Supreme Court of Canada precedents regarding the concepts “wilfully”, “recklessly”, “unnecessary suffering” and “killing without lawful excuse”. Case law confirms that an explicit reference to “wilfully or recklessly” is redundant and unnecessary, since those concepts are inherently applicable even if they are not stated (R. v. Buzzanga). It is contrary to good modern legal drafting to insert these words in the Code, but we appreciate that re-inserting those words will reassure those who do not understand criminal law that their rights were never in jeopardy. CFHS has acknowledged from the outset that a crime could not exist without those concepts, which were always inherently present. However, we support reintroduction of the combined words “wilfully or recklessly”.
Recklessly. If the word “wilfully” is to be re-inserted into the section, then the word “recklessly” must be inserted in combination with “wilfully”. The status quo must remain as it currently exists. The word “recklessly” can be used to replace the identical concept currently existing in s. 429 (1) of the Code. The word “recklessly” is well defined in the Supreme Court of Canada case R. v. Sansregret: “In accordance with well-established principles for the determination of criminal liability, recklessness, to form part of the criminal mens rea must have an element of the subjective. It is found in the attitude of a person who is aware that there is a danger that his conduct could bring about the result prohibited by the criminal law, but persists, despite the risk.”
Brutal or Vicious Killing [s. 182.2 (1)(b)]. This provision addresses unusual and reprehensible circumstances where an accused had a specific intent to commit a violent and despicable act far beyond society’s standards, constituting a risk to society of further violence. Normally, cruelty offences would be prosecuted under s. 182.2 (1)(a) to avoid this difficult burden of proof.
Poisoning an Animal [s. 182.2 (1) d)]. We recommend that this poisoning offence should not require proof of wilful or reckless conduct. It should be sufficient that the accused was criminally negligent in placing the poison. We recommend that the poisoning section be moved into s. 182.3 (1) (d).
Shooting Liberated Animals [s. 182.2 (1) (g)]. We object to insertion of the words “at the moment” into s. 182.2 (1) (g) because that implies that a hunter can sit in front of a cage and blast an animal the instant after it exits the cage. That proposed amendment dilutes the existing wording contained in s. 446 (1) (f): “for the purpose of being shot when they are liberated”. Such behaviour is not only unsportsmanlike, but is reprehensible to carry on such a recreational pursuit for the joy of killing an animal where it has no sporting chance of surviving. The section should be amended by altering the last phrase to state: “for the purpose of being shot at when it has been liberated with no reasonable opportunity to escape”. [H7]
Promoting Fighting [s. 182.2 (1) (e)]. Unfortunately, the new section 182.2 (1) (e) no longer contains the wording currently found in s. 446 (1) (f) to the effect that “Evidence of an accused was present at the fighting or baiting of animals or birds, in the absence of any evidence to the contrary, proof that he encouraged, aided or assisted at the fighting or baiting”. We request that s. 182.2 (1) (e) be amended by stating: “…in any manner encourages, promotes, arranges, assists at, attends at or receives money for the fighting or baiting of animals…” Prohibiting persons from being found -ins is the best way to stop such group events. That remedy assists police to route out the perpetrators, by allowing them to detain and question attendees to obtain evidence which provides reasonable grounds for a prosecution against the organizers of the event.
Criminal Negligence [s. 182.3 (1)]. The criminal negligence offences set out in s. 182.3 (1) include: (a) Failure to Exercise Reasonable Care; (b) Abandonment or Failure to Provide Necessities; and © Negligently Conveying. “Negligently” means departing markedly from the standard of care that a reasonable person would use [s. 182.3 (2)]. That typical criminal negligence standard has been confirmed by various Supreme Court of Canada precedents such as R. v. Naglik or R. v. Creighton.
Sentencing Improvements [s. 182.2(2) + 182.3(3)]. Elevating the cruelty and criminal neglect offences to become summary conviction and indictable hybrid offences will be an important signal to crown prosecutors and judges to treat animal abuse cases more seriously. The sentencing, fines, prohibition order and restitution order improvements have been widely supported.
Fines. Fines for indictable offences may be set at an appropriate amount in the judge’s discretion. Fines for summary offences may not exceed $2,000. Since a very high proportion of prosecutions will proceed by way of summary conviction, rather than by indictment, we urge that the maximum fine for a summary conviction, cruelty or criminal neglect offence be increased to $10,000 by inserting a specific reference in s. 182.5. While that fine would not be as high as the $50,000 fine permitted in the federal Health of Animals Act, a $10,000 fine would put more teeth where it counted the most and would be the type of strong signal to the justice system we have been asking for.
Prohibition Order [s. 182.4 (1)(a) + (2)]. Prohibition orders which allow judges discretion to prohibit ownership and control of animals beyond the existing two year limitation. Closing existing loopholes to prevent the accused from continuing to live in the same premises as the abused animal will save such animals from continuing abuse or retaliation. [J1]
Restitution Order [s. 182.4(1)(b) + (3)]. Restitution should be provided to SPCAs who often have to spend thousands of dollars for veterinary, shelter, feeding and care costs where an accused fails to provide necessities for a number of animals, such as a starved herd of cattle.
Industry Concerns Unfounded. Industry representatives have expressed concerns that the Bill C-15B revisions will open the door to “nuisance lawsuits” by animal rights activists. Bill C-15B will not affect civil lawsuits and it will not expose industries to any greater risk than as existed for the past 109 years. We are not aware of any cases of an abusive cruelty prosecution in the past. Layers of criminal law protections prevent innocent persons from being charged or convicted. SPCA inspectors are well-trained to responsibly investigate animal abuse. Crime investigations are subject to numerous criminal law safeguards. Animal rights activists will not be entitled to unilaterally launch a prosecution. Seldom will a Justice of the Peace permit an individual to lay criminal charges without a prosecutor’s approval. Crowns may only prosecute upon determining it is appropriate to do so after examining all relevant information. A prosecutor may not proceed unless it is required in the public interest. Counsel must be fair, independent and objective. There must be a strong, solid case of substance to present to the Court based on material evidence and the likelihood that a defence would not be viable. Allegations must be serious in nature rather than trivial or technical and the conviction must be likely to result in a significant sentence. The prosecutor must prove difficult concepts such as “wilfully”, “recklessly”, “causation”, “unnecessary pain”, and “criminal negligence”. Various evidentiary and procedural problems cause impediments. The Charter of Rights and Freedoms protects an accused from an overly-aggressive prosecutor. A judge must be convinced beyond a reasonable doubt that the accused committed all elements of the crime, after hearing the accused’s evidence and legal defences (including the accused’s inherent right to argue lawful excuse).
Lawful Excuse. Currently, s. 429 (2) explicitly imposes the burden upon an accused to prove that he acted with legal justification or excuse and with colour or right. Concerns about removal of those words in Bill C-15B are unfounded. Those concepts are fully covered by the prevailing common law concept “lawful excuse” which forms an inherent defence to every crime. Section 8 (3) of the Code and binding Supreme Court of Canada precedents explicitly provide that every rule and principle of common law continues to remain applicable with respect to any circumstances, justification or excuse for an act, and may provide an additional basis for a defence to a charge. Many types of lawful excuse exist, such as killing an animal out of an act of mercy, defending children, other animals or property, honest belief (mistake of fact), necessity, automatism, due diligence, entrapment, provocation, defence with claim of right, third party offender, duress and res judicata/issue estoppel, amongst others. Lawful activities such as farming, hunting, trapping, fishing and experimental research are permitted by legislation, regulations and permits – lawful excuses which permit over 400,000,000 animals to be killed in Canada each year. Humane societies kill unwanted pets. Householders kill rats and legally defined pests, slaughter houses are federally or provincially regulated and researchers are subject to provincial legislation. A number of industries have established animal welfare standards. The concept of “unnecessary suffering” inherently permits causing substantial pain to animals as a defence if it was necessary to do so to achieve a lawful purpose, as confirmed by R. v. Menard. Pain suffered by an animal only becomes “unnecessary” if another, less painful means of obtaining the end result exists which is known to the accused and is reasonable to use. Similarly, a person accused of criminal negligence against an animal can defend by showing that the standard of care used did not constitute a marked departure from the standard a reasonable person would use.
Colour of Right. Currently, an accused can dream up any kind of excuse, claiming that he had a “colour of right” under s. 429 (2) on the basis that he had a mistaken belief as to his entitlement to property. That type of defence is quite appropriate for the other property offences in Part XI, but it is not appropriate a sa defence to causing pain, suffering or injury to an animal. In any event, an accused person always has a “lawful excuse” defence available at common law which allows a person to defend his or her ownership or custody of an animal. “Colour of right” should not be allowed as a defence to cruelty.
Exemptions Rejected. CFHS absolutely opposes outright exemptions from the crimes against animals sections applicable to specified industries or types of animals. Such a radical departure from the existing criminal law would be a substantial corruption of the concept of cruelty. Industries should not be entitled to contract out of cruelty crimes by setting their own standards, but should be subject to the same objective review as anyone else. The fox should not be in charge of the chicken coop. Industry standards may likely provide a lawful excuse defence unless they cause unnecessary suffering. Persons are entitled to cause pain to animals (even if it is substantial) but parliamentarians should not allow anyone to be permitted to cause unnecessary suffering. Exemptions benefiting some persons but not others may be unconstitutional.
Modern Improvements. The Criminal Code cruelty provisions state a fundamental moral concept which has been the foundation for the work of SPCAs for over a hundred years. SPCAs have carried out their statutory mandates responsibly. We are not aware of any case where an SPCA has abused the Criminal Code provisions. The basic existing cruelty provisions are continued in Bill C-15B with the same substantive effect as currently exist, but the proposed moderate adjustments are necessary to allow SPCAs to carry out their statutory mandate and role in society.
