R v Bailey, 2002 NSSC 212 (CanLII)

This is an appeal by the two accused (Bailey and Benoit) from conviction and sentence. Bailey and Benoit were jointly charged of two offences under the Animal Cruelty Prevention Act (“ACPA”): 1) wilfully causing unnecessary suffering to a dog by neglecting to provide adequate food and water, contrary to section 11(1) of the ACPA; and 2) wilfully causing unnecessary suffering to a dog by neglecting to provide it basic medical attention and adequate food and water, contrary to section 11(1) of the ACPA.

The appellants set forth 12 grounds of appeal. The judge finds the second, fourth and sixth grounds have some merit. They are: 2) that the trial judge erred in fact and law in misapplying the “beyond a reasonable doubt” standard; 4) that the trial judge failed to give reasons for his decision; and 6) that the trial judge erred in law in misapplying the provisions of the ACPA to the facts. They also appealed the sentence alleging that the sentencing judge gave them a harsh sentence disproportionate with the facts of the case as proven at trial.

There were three dogs involved in the charges, but a major focus of the trial was the condition of the female dog which had recently birthed 13 pups. The RCMP had received a call about animals in a neglected state at the Defendant’s premises and an animal protection officer, along with police and a veterinarian, attended at the location. The animal protection officer saw two puppies, one described as cold, hungry and shaking, in an enclosure. No food or water was noted. The veterinarian examined the dogs and determined they were in need of veterinary care. The puppies were later found to be heavily infested with parasites – worms, biting lice and fleas were found. A third dog nearby was tangled in its chain which was secured to a tree. This dog, the female dog which had recently given birth, was described by the veterinarian as “emaciated” and in need of immediate attention. The dog was also missing some hair, hypothermic and was infested with fleas. There was a bucket of frozen water nearby. The vet considered that all three dogs were in present danger because of the cold weather and their poor physical condition. All three dogs were seized without a warrant.

The attending vet testified that with proper diet a nursing dog would maintain her body weight despite nursing a large litter. The Defendant’s expert witness, another veterinarian, testified that the poor condition of the adult female could “possibly” be the result of the load the 13 puppies placed on her system. However, the evidence also indicates that the female dog was restored to health quickly with nutritional intervention.

The judge indicates that while it is clear there was substantial, credible evidence to support the conclusion that one or both of the accused permitted the animal to be or continue to be in distress, contrary to section 11(2) of the ACPA, the evidence and specific findings of fact do not support a conviction under section 11(1). Section 11(1) creates a full mens rea offence. A person would not be guilty of this offence without some conscious act which they knew or ought to have known would result in pain, suffering or injury. The reasons failed to define specifically what action or inaction on the part of the two accused or either of them led to “suffering”. A simple “lack of care” imports relative values and is an unsatisfactory basis upon which to impose quasi-criminal penalties. It would seem that the judge was concerned with the “adequacy” of care, food and water. But technically, this was not the allegation, and would be relevant only in a prosecution under section 11(2). The issue to be determined in a charge under Section 11(1) of the Act is not whether an animal has been accorded an appropriate or acceptable standard of care, rather the issue is whether the accused has performed some act or failed to perform some act which they were obliged to perform in the knowledge that that action or failure would likely result in unnecessary pain, suffering or injury. The specific findings of fact with relation to suffering, and the specific cause of that suffering attributed to the two accused are unfortunately not to be found in the reasons of the trial judge; nor self-evident from the transcript.

The judge allows the appeal for conviction and orders a new trial.

Source: Case Law

Jurisdiction: Nova Scotia

Topics: Animal Cruelty Prevention Actappealdogsemaciatedexpert witnessfoodmedical attentionneglectnew trial orderedparasitespuppiesunnecessary sufferingveterinarianwaterwilfullywrong charge

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