Animal cruelty has been prohibited in Canada since Confederation, the text of the first offence pictured.

Upon a reading of the contemporary Canadian Criminal Code, one would think that there’s a zero tolerance towards animal cruelty.



To wit (extracted from ¶445 and ¶446):

Everyone who wilfully and without lawful excuse, kills or injures dogs, birds or animals that are not cattle and are kept for a lawful purpose, or places poison in such a position that it may easily be consumed by these animals, is guilty of an offence punishable on summary conviction.



Every one commits an offence who

wilfully causes or, being the owner, wilfully permits to be caused unnecessary pain, suffering or injury to an animal or a bird; by wilful neglect causes damage or injury to animals or birds while they are being driven or conveyed; being the owner or the person having the custody or control of a domestic animal or a bird or an animal or a bird wild by nature that is in captivity, abandons it in distress or wilfully neglects or fails to provide suitable and adequate food, water, shelter and care for it; in any manner encourages, aids or assists at the fighting or baiting of animals or birds; wilfully, without reasonable excuse, administers a poisonous or an injurious drug or substance to a domestic animal or bird or an animal or a bird wild by nature that is kept in captivity or, being the owner of such an animal or a bird, wilfully permits a poisonous or an injurious drug or substance to be administered to it; or takes part in any meeting, competition, exhibition, pastime, practice, display or event at or in the course of which captive birds are liberated by hand, trap, contrivance or any other means for the purpose of being shot when they are liberated.

The issue is not the comprehensive and expansive definition of animal cruelty in Canadian criminal law, which is most welcome.



The issue is the punishment upon conviction.

Animal cruelty – other than upon cattle - is a "summary conviction" offense; and not the more serious "indictable" offense.

As set out at ¶787 of the Criminal Code, a summary offence conviction makes the accused "liable to a fine of not more than two thousand dollars or to imprisonment for six months or to both."



Cruelty to cattle (defined as "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") comes with the more significant punishment.

Domestic animals (such as the ferret "Lulu" pictured below) are not protected by the more "detterring" sentence.



Because of this, judges, when faced with animal cruelty cases, are hesitant to impose sentences which would have a more appropriate deterrent effect. Rare is the six-month jail term for animal cruelty.



In a case which truly brings out the difficulty of this issue, R v Randell (1989 96 AR 237), the accused kick and beat his dog to death with a hockey stick in response to the dog having attacked his son. The Court fined him $1,000 noting that "the accused's actions went far, far beyond what could be considered reasonable discipline for an animal."



In R v Radmore, a 1993 Quebec case, 17 horses at the accused’s barn were seized by SPCA officers. Barbed wire was lying on the grazing area, horses had untreated open wounds, hooves had not been groomed, and:

"... under some type of a platform in the barn, ...the corpse of a very young colt, which perhaps had only been dead for about three or four days. The mother of the dead animal is constantly near it and other horses are passing near the remains as well. The Court has not applied a human to human standard of care but a human to animal standard of care and unfortunately has found Mr. Radmore sadly lacking."



In R v Comber (1975 28 CCC 2d 444), the accused discharged a rifle into the ground to (his words) "frighten them away". By an amazing coincidence (the judge bought the accused’s allegation of a freak ricochet), a bullet hit and seriously injured one of the dogs, which the accused then finished off with a direct hit "to put it out of its misery". Comber was convicted: "there is no right to wilfully kill a dog simply because it trespasses onto property."



In 1996, the Newfoundland court considered the case of R v Higgins (451 APR 295) where a cat owner wished to discipline his cat "Sammy" who he suspected had overturned the garbage pail. He ran after it and "accidentally" broke its leg with a broom. Higgins was acquitted of the animal cruelty charge, the Court saying that:

"When he gave chase to the cat with the broom his intention basically was to scare the cat and to give it an aversion to dealing with the garbage which was what he suspected the cat had done. I don't think there was any thought in his mind at all that by giving chase ... I don't think the thought occurred to him at all that he might injure the cat."



In R v Schafer 2000 CarswellOnt 3549, John Schafer caught "Joey", a stray 9-year old poodle dog urinating on his front lawn, picked it up and tossed it onto the street, leaving it in critical condition. He was convicted. "Exasperating is it may be to the proud homeowner, there is no right to harm a dog wilfully simply because it trespasses on his property".



In R v L, 1999 242 AR 357, the Alberta Provincial Court considered the case of two young ladies who were caring for a stray cat but became disinterested and asked two local boys to "dispose" of the cat. The boys proceeded to grotesquely kill the cat. The Court convicted saying:

"The killing method adopted inflicted unnecessary pain, suffering and injury ... (and) could have reasonably been accomplished without that pain, suffering, or injury. Therefore, that pain, suffering, and injury was unnecessary to effect the goal."



Oddly, the Criminal Code penalty for uttering a threat to kill, poison or injure an animal or bird that is the property of any person, is greater than actually being cruel to the animal, as it can be proceeded with as a indictable offence with attendant liability to imprisonment for a term of 24 months.



Some provinces (Alberta, for example), supplement the federal criminal law with their own legislation. The Alberta Animal Protection Act prohibits "distress" to an animal (and in what may have been a rare display of humour, the legal drafters took the care to specify that "animal" does not include a human being"!).

"Distress" is generously defined as "deprived of adequate shelter, ventilation, space, food, water or veterinary care or reasonable protection from injurious heat or cold, injured, sick, in pain or suffering, or abused or subjected to undue hardship, privation or neglect."



And:

"A person who owns or is in charge of an animal must ensure that the animal has adequate food and water, provide the animal with adequate care when the animal is wounded (and) with reasonable protection from injurious heat or cold, and must provide the animal with adequate shelter, ventilation and space."



The May, 2007 version of the legislation is available at www.canlii.com/ab/laws/sta/a-41/20070515/whole.html.



Most provinces have endorsed the operations of the international "Society for the Prevention of Cruelty to Animals ", (SPCA), and have created and empowered provincial SPCAs, including seizure of abused animals and investigation powers, such as:

The Ontario SPCA at www.ontariospca.ca;

The Alberta SPCA at www.albertaspca.org; and

The British Columbia SPCA at www.spca.bc.ca

SPCA also has an international site at www.spca.com.



Some provinces supplement the work of the SPCA with local "humane societies" such as the Winnipeg Humane Society at http://www.winnipeghumanesociety.ca/ or the Edmonton Humane Society at http://www.edmontonhumanesociety.com/cgi-bin/index.pl (see the British-accent talking dog!).



In addition, to this witch’s brew must be added municipal by-laws. For example, in R. Schafer quoted above, the Court noted that the City of Markham had a bylaw which read:

"No person shall allow a dog or cat to run at large in the Town..... A dog or cat shall be deemed to be running at large when found in any place other than the premises of the owner of the animal and not under the control of any person. No person who owns, harbours, or possesses any animal shall permit it to run at large, or to trespass on any public or private property."



Animals are a mystery to the law. The law has never known how to deal with animals properly. In ancient times, animals have been hung or burned alive for their "crimes".



The contemporary approach to animals is to treat them as property, as noted in Ebers v MacEachern, a 1932 PEI case cited at 3 DLR 415: "If an animal belongs to the class of tame animals, he is then clearly a subject of absolute property".



As property, their owners may be responsible for the animal’s actions. But on this point, the law has equivocated between liability for animals known to be dangerous and those not previously or naturally dangerous.



To resolve the injustices the common law policy has caused, some province, such as Ontario has gone a step further and rather than rely on judges and the common law, has introduced a Dog Owner's Liability Act which, according to the Ontario SPCA:

"An Act designating dog owners (or the parents/guardians of owners who are minors) responsibility for bites or attacks by their dog on a person or other domestic animal. An exclusion may be made if the bite or attack occurred on a person in the process of committing a criminal act or in the destruction of the owner's property. The Act covers all breeds of dogs but has specific regulations for pit bull owners including a mandatory requirement for all dogs to be muzzled and leashed off the owner's property. In case of a dog bite or attack, the Ontario Court of Justice may order one of the following: destruction of the dog; measures for more effective control; confinement; leash; muzzle and prohibition of the individual from dog ownership for a specified period of time. The Dog Owner's Liability Act is enforced by local municipalities and police forces."



Canada’s criminal law does not specifically address the issue of using animals for scientific testing.



"Animal law" is an emerging area of the law and not one without its lateral divisions. There is an American "Animal Law Review" being published by Lewis & Clark Law School in Portland, Oregon. The staff of the Rutledge School of Law in New Jersey includes Gary Francione who is a leading expert on animal law. His somewhat pedantic position: "All sentient beings, humans or nonhuman, have one right: the basic right not to be treated as the property of others. "



At the same time, sympathy for the real issue of animal cruelty is hurt by irresponsible dog owners, or with insufficient intellect to comprehend the danger, and who expose innocent children and others to their dog's irrational sense of territory, walking with straying dogs including rottweilers or pit-bulls, leashless and roaming onto unsuspecting owners' properties.



Consumers are applying pressure against practices perceived to support animal cruelty such as the popularity of "free-range" meat products, or "hormone free" meat and the avoidance of cosmetic products that issue from corporations that test on animals.

References and Further Reading: