This is an appeal against a conviction on two charges of cruelty to animals (a number of dogs) contrary to section 446 of the Criminal Code. The two charges were: 1) wilfully causing unnecessary pain, suffering or injury contrary to section 446(1)(a); and 2) wilfully neglecting or failing to provide suitable care contrary to section 446(1)(c). These charges arose as a result of the execution of a search warrant at the accused’s premises following an undercover operation by the Ontario SPCA. During the course of trial, there was some reference to various other animals in varying states of neglect, including birds, rabbits, sheep, chickens, a horse and a pig. Some of them were dead. A stay was entered on the first count after the findings of guilt.
The trial judge accepted the evidence that the appellant only had possession of the 21 dogs for several weeks and was not responsible for their severely matted condition. She also accepted that he had made arrangements for care to take place three days after the dogs were seized. However, the findings of guilt were based on the fact that the accused had failed to take sufficient steps to have the dogs’ neglected condition attended to by grooming and veterinarian care.
The appellant was charged in August, 2002. Counsel of record attended court after three previous appearances in November, 2002. Following 13 more appearances, in October, 2003, a trial date was set for May, 2004. In March, 2004, counsel sought and was granted leave to be removed from the record. In May, 2004, the appellant, now self-represented, sought and was refused an adjournment of the trial dates in order to obtain new counsel. The trial judge affirmed the adjournment refusal and the trial proceeded in May, as scheduled. The judgment was delivered in September, 2004. New counsel appeared on record for the first time in October, 2004. Sentencing took place in February, 2005.
The appellant alleges: 1) error in refusing an adjournment request to retain counsel; 2) error in failure to provide adequate assistance to a self-represented accused; 3) error in the admission and use of evidence of “other discreditable conduct”; 4) unreasonable verdicts; and 5) the sentence was manifestly unfit.
In reference to those grounds of appeal the court finds that:
- Having failed to establish a miscarriage of justice based on the refusal to grant an adjournment, the first ground of appeal fails.
- From the judge’s review of the record, there is not much more the trial judge could have done to assist the appellant without facing an allegation that she had “entered the arena” on his behalf; thus, the second ground of appeal fails.
- Assuming without deciding that it was legal error for the trial court to proceed to admit evidence of “other animals” without testing it in the crucible of a voir dire, the judge is persuaded that this caused no substantial wrong to the appellant and was “harmless error”. The third ground of appeal fails.
- The trial judge was justified in finding liability on the basis of the appellant’s failure to do more to obtain immediate care for these dogs. The fourth ground of appeal fails.
- The trial judge found aggravating circumstances from the previous criminal record, the number of dogs wilfully neglected and the fact that the appellant was in a position of trust toward his canine victims. I can see no error in principle in the trial judge’s acceptance of these factors in arriving at the sentence she did. Her decision is upheld; however, the sentence is varied.
In conclusion, the conviction appeal is dismissed, as well as the sentence appeal except for two modifications to the incidental orders: 1) there is no jurisdiction to delay the prohibition under s.446(5) until the end of the three-year period of probation that also included a term that the appellant not possess or have the custody or control of any dogs; and 2) the restitution order should be reduced to reflect the monies obtained by the OSPCA upon sale of the 21 dogs to third parties; that award is reduced to $4,752.00.
Source: Case Law