Animal Cruelty (Offence)

Animal Cruelty
	s. 445, 445.1 and 446 of the Crim. Code
Election / Plea
Crown Election	Hybrid; summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction	Prov. Court; Sup. Court w/ Jury (); Sup. Court w/ Judge-alone (); * Must be indictable.
Summary Dispositions
Avail. Disp.	Discharge (730); Suspended Sentence (731(1)(a)); Fine (734); Fine + Probation (731(1)(b)); Jail (718.3, 787); Jail + Probation (731(1)(b)); Jail + Fine (734); Conditional Sentence (742.1);
Minimum	None
Maximum	6 months or 18 months incarceration or $10,000 fine
Indictable Dispositions
Avail. Disp.	same as summary
Minimum	None
Maximum	2 or 5 years incarceration
Reference
	Offence Elements; Sentence Digests;

This page was last substantively updated or reviewed January 2020. (Rev. # 95090)

< Criminal Law/Sentencing
< Offences

Overview

Offences relating to animal cruelty are found in Part XI of the Criminal Code relating to "Wilful and Forbidden Acts in Respect of Certain Property".

There are four types of offences against animals generally. There are offences for killing and harming animals (445), torturing animals (445.1), and neglecting animals (446). They are all found in Part XI of the Criminal Code relating to "Wilful and Forbidden Acts in Respect of Certain Property".

Pleadings

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)	Preliminary Inquiry
s. 445 [killing and harming animals], s. 445.01 [killing or injuring service animals], s. 445.1 [causing unnecessary suffering], s. 445.2 [harming aquatic mammals] and s. 446 [causing damage or injury]	Hybrid Offence(s)		(* only if Crown proceeds by Indictment)	(under 14 years max)

Offences under s. 445 [killing and harming animals], 445.01 [killing or injuring service animals], 445.1 [causing unnecessary suffering] and 446 [causing damage or injury] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Release

Offence(s)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By a Judge or Justice on a Release Order s. 515 to 519	Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act
s. 445 , 445.1 [causing unnecessary suffering] and 446 [causing damage or injury]

When charged under s. 445 [killing and harming animals], 445.1 [causing unnecessary suffering] and 446 [causing damage or injury] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
"for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

And, regardless of Crown election, if the offence alleged was one:

where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

Fingerprints and Photos

A peace officer who charges a person under s. 445 [killing and harming animals],
445.1 [causing unnecessary suffering] and
446 [causing damage or injury] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 445 [killing and harming animals], s. 445.1 [causing unnecessary suffering], s. 445.2 [harming aquatic mammals] or s. 446 [causing damage or injury]			(under 10 years max)

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Injuring or endangering other animals

445 (1) Every one commits an offence who, wilfully and without lawful excuse,

(a) kills, maims, wounds, poisons or injures dogs, birds or animals that are kept for a lawful purpose; or

(b) places poison in such a position that it may easily be consumed by dogs, birds or animals that are kept for a lawful purpose.

Punishment

(2) Every one who commits an offence under subsection (1) [injuring or endangering other animals – offences] is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) an offence punishable on summary conviction and liable to a fine of not more than $10,000 or to imprisonment for a term of not more than two years less a day, or to both.

R.S., 1985, c. C-46, s. 445; 2008, c. 12, s. 1; 2018, c. 29, s. 53; 2019, c. 25, s. 170.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 445 (1) and (2)

Killing or injuring certain animals

445.01 (1) Every one commits an offence who, wilfully and without lawful excuse, kills, maims, wounds, poisons or injures a law enforcement animal while it is aiding a law enforcement officer in carrying out that officer’s duties, a military animal while it is aiding a member of the Canadian Forces in carrying out that member’s duties or a service animal.

Punishment

(2) Every one who commits an offence under subsection (1) [killing or injuring certain animals] is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years and, if a law enforcement animal is killed in the commission of the offence, to a minimum punishment of imprisonment for a term of six months; or

(b) an offence punishable on summary conviction and liable to a fine of not more than $10,000 or to imprisonment for a term of not more than two years less a day, or to both.

Sentences to be served consecutively

(3) A sentence imposed on a person for an offence under subsection (1) [killing or injuring certain animals] committed against a law enforcement animal shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events.
[omitted (4)]
2015, c. 34, s. 3; 2019, c. 25, s. 171.
[annotation(s) added]

– CCC (CanLII), (DOJ)]

Note up: 445.01 (1), (2), (3), and (4)

Cruelty to Animals

Causing unnecessary suffering

445.1 (1) Every one commits an offence who

(a) wilfully causes or, being the owner, wilfully permits to be caused unnecessary pain, suffering or injury to an animal or a bird;

(b) in any manner encourages, aids, promotes, arranges, assists at, receives money for or takes part in
(i) the fighting or baiting of animals or birds, or

(ii) the training, transporting or breeding of animals or birds for the purposes of subparagraph (i);

(c) 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;

(d) promotes, arranges, conducts, assists in, receives money for 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; or

(e) being the owner, occupier or person in charge of any premises, permits the premises or any part thereof to be used for a purpose mentioned in paragraph (d).

Punishment

(2) Every one who commits an offence under subsection (1) [causing unnecessary suffering – forms of offence] is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) an offence punishable on summary conviction and liable to a fine of not more than $10,000 or to imprisonment for a term of not more than two years less a day, or to both.

Failure to exercise reasonable care as evidence

(3) For the purposes of proceedings under paragraph (1)(a) [causing unnecessary suffering – pain, suffering, or injury], evidence that a person failed to exercise reasonable care or supervision of an animal or a bird thereby causing it pain, suffering or injury is, in the absence of any evidence to the contrary, proof that the pain, suffering or injury was caused or was permitted to be caused wilfully, as the case may be.

Presence at baiting as evidence

(4) For the purpose of proceedings under paragraph (1)(b) [causing unnecessary suffering – involved in animal fighting], 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.
2008, c. 12, s. 1; 2019, c. 17, s. 2; 2019, c. 25, s. 172.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 445.1 (1), (2), (3), and (4)

Definition of cetacean

445.2 (1) In this section, cetacean includes any member of the cetacean order, including a whale, dolphin or porpoise.

Offence

(2) Subject to subsections (2.1) to (3.1) [causing unnecessary suffering – exceptions], every person commits an offence who

(a) owns, has the custody of or controls a cetacean that is kept in captivity;

(b) breeds or impregnates a cetacean; or

(c) possesses or seeks to obtain reproductive materials of cetaceans, including sperm or an embryo.

Exception — gestation

(2.1) If a cetacean is gestating on the day on which this subsection comes into force, paragraphs (2)(b) and (c) do not apply in respect of that cetacean for the period in which it gestates that includes the day on which this subsection comes into force.

Exception — offspring

(2.2) Paragraph (2)(a) does not apply to the offspring of a cetacean if that offspring was born immediately after a gestational period that included the day on which this subsection came into force.

Exception

(3) Paragraph (2)(a) [keeping a cetacean in captivity] does not apply to a person who

(a) owns, has the custody of or controls a cetacean that is kept in captivity at the coming into force of this section and remains continuously in captivity thereafter;

(b) has the custody of or controls a cetacean that is kept in captivity for the purpose of providing it with assistance or care or to rehabilitate it following an injury or another state of distress; or

(c) is authorized to keep a cetacean in captivity in the best interests of the cetacean’s welfare pursuant to a licence issued by the Lieutenant Governor in Council of a province or by such other person or authority in the province as may be specified by the Lieutenant Governor in Council.

Exception

(3.1) Subsection (2) [involved with breeding or keeping captive a cetacean] does not apply to a person who is conducting scientific research pursuant to a licence issued by the Lieutenant Governor in Council of a province or by such other person or authority in the province as may be specified by the Lieutenant Governor in Council.

Exception — authorization

(4) Every person commits an offence who promotes, arranges, conducts, assists in, receives money for or takes part in any meeting, competition, exhibition, pastime, practice, display or event at or in the course of which captive cetaceans are used, in Canada, for performance for entertainment purposes, unless the performance is authorized under a licence issued by the Lieutenant Governor in Council of a province or by an authority in the province as may be specified by the Lieutenant Governor in Council.

Punishment

(5) Every one who commits an offence under subsection (2) [involved with breeding or keeping captive a cetacean] or (4) [exception when authorized] is guilty of an offence punishable on summary conviction and liable to a fine not exceeding $200,000.
2019, c. 11, s. 2; 2019, c. 14, s. 58.3.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 445.2 (1), (2), (2.1), (2.2), (3), (3.1), (4), and (5)

Causing damage or injury

446 (1) Every one commits an offence who

(a) by wilful neglect causes damage or injury to animals or birds while they are being driven or conveyed; or

(b) 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.

Punishment

(2) Every one who commits an offence under subsection (1) [wilful neglect causing injury] is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than two years; or

(b) an offence punishable on summary conviction.

[omitted (3)]
R.S., 1985, c. C-46, s. 446; 2008, c. 12, s. 1; 2019, c. 25, s. 173.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 446 (1), (2) and (3)

Draft Form of Charges

See also: Draft Form of Charges

		Pre-ambles
		"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section	Subject of Offence	Draft Wording
445(a)		"..., did wilfully and without lawful excuse kill, maim, wound, poison or injure a [animal] that was kept for a lawful purpose, contrary to section 445(1)(a) of the Criminal Code.
445(1)(b)		"..., did wilfully and without lawful excuse placed poison in such a position that it may easily be consumed by [animal] that are kept for a lawful purpose contrary to section 445(1)(b) of the Criminal Code.
445.01(1)		"..., did wilfully and without lawful excuse, kill, maim, wound, poison or injure a law enforcement animal [name] while it is aiding a law enforcement officer [name] in carrying out that officer’s duties contrary to section 445.01(1) of the Criminal Code.
445.01(1)		"..., did wilfully and without lawful excuse, kill, maim, wound, poison or injure a military animal [name] while it is aiding a member of the Canadian Forces in carrying out that member’s duties contrary to section 445.01(1) of the Criminal Code.
445.01(1)		"..., did wilfully and without lawful excuse, kill, maim, wound, poison or injure a service animal contrary to section 445.01(1) of the Criminal Code.
445.2(2)		"..., contrary to section 445.2(2) of the Criminal Code."
446(1)(a)		"..., did by wilful neglect causes damage or injury to cause unnecessary pain, suffering or injury to an animal, to wit: a cat contrary to section 446 of the Criminal Code."
446(1)(b)		"..., being the owner or the person having the custody or control of a domestic animal or bird or an animal or a bird wild by nature that is in captivity, to wit: [animal], did unlawfully abandon it in distress or wilfully neglect or fail to provide suitable and adequate food, water, shelter and care for it, and did thereby commit an offence contrary to section 446(1)(b) of the Criminal Code."

Proof of the Offences

Proving killing and harming animals under s. 445(1)(a) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit wilfully kills, maims, wounds, poisons or injures a creature ☐ the creature is a dog, bird or animal that is not cattle ☐ the creature is kept for a lawful purpose ☐ the culprit had no lawful excuse Proving killing and harming animals by poison under s. 445(1)(b) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit wilfully places poison in such a position that it may easily be consumed by a creature ☐ the creature is a dog, bird or animal that is not cattle ☐ the creature is kept for a lawful purpose ☐ the culprit had no lawful excuse	Proving killing and harming animals under s. 445.1 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ harm to creature ☐ the culprit wilfully causes or, as an owner, wilfully permits to be caused harm to a creature ☐ the harm is "unnecessary pain, suffering or injury" ☐ the creature is a animal or bird. party to fighting or baiting ☐ the culprit does an act ☐ the act encourages, aids or assists at the fighting or baiting of a creatures ☐ the creature is an animal or bird ☐ drugging an animal ☐ the act encourages, aids or administers a thing to a creature ☐ the thing is a poisonous or an injurious drug or substance ☐ the creature is 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; party to shooting, or ☐ the culprit promotes, arranges, conducts, assists in, receives money for or takes part in occurrence ☐ that occurrence is a meeting, competition, exhibition, pastime, practice, display or event ☐ in the occurrence captive birds are liberated ☐ the liberation was by hand, trap, contrivance or any other means ☐ the liberation was for the purpose of being shot when they are liberated ☐ owner or occupant of shooting place ☐ the culprit is the owner, occupier or is in charge of a premises, ☐ the culprit permits the premises to be used for a purpose ☐ the purpose is one enumerated in s. 445.1(1)(d)
Proving neglecting animals under s. 446(a) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit wilfully neglects a creature ☐ the act causes damage or injury to the creature ☐ the creature is an animal or bird ☐ the act occurs while being driven or conveyed	Proving neglecting animals under s. 446(b) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit is the owner or has custody or control of a creature ☐ the creature is a "domestic animal or a bird or an animal or bird wild by nature" ☐ the creature is in captivity ☐ the culprit abandons the creature in distress or wilfully neglects or fails to provide suitable and adequate food, water, shelter and care for it.

Interpretation of the Offence

Gravity of Offences Against Animals

It has been recognized that intentional cruelty to animals is an indicator of a "potential for increasing violence and dangerousness" against people.^[1]

Parliament amended s. 445(1) with An Act to amend the Criminal Code (cruelty to animals), SC 2008 c 12 increasing the maximum penalties. This has been interpreted as signaling that the previous penalties were "wholly inadequate" and that penalties in general should be increased."^[2]

wilful causation

Where there is no evidence to the contrary, the requirement of willful causation of harm to an animal or bird under s. 445.1(1)(a) must be on an objective standard.^[3]

Where there is evidence to the contrary, the Crown must prove that s. 429 applies. This requires subjective proof that the act or omission would "probably cause the occurrence" and the accused was reckless to the outcome.^[4]

Definitions

"unnecessary pain"

The necessity of the pain takes into account "all the circumstances of the particular case", including the purpose of the pain, the "social priorities", the means available, and reasonable costs.^[5] The main concern is whether the pain was "reasonably avoided."^[6]

"kept"

The person who "kept" the animal must exercise a degree of control over the animal.^[7]

Presumptions on Intention and Baiting (445.1)

445.1
[omitted (1) and (2)]

Failure to exercise reasonable care as evidence

(3) For the purposes of proceedings under paragraph (1)(a) [causing unnecessary suffering – pain, suffering, or injury], evidence that a person failed to exercise reasonable care or supervision of an animal or a bird thereby causing it pain, suffering or injury is, in the absence of any evidence to the contrary, proof that the pain, suffering or injury was caused or was permitted to be caused wilfully, as the case may be.

Presence at baiting as evidence

(4) For the purpose of proceedings under paragraph (1)(b) [causing unnecessary suffering – involved in animal fighting], 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.
2008, c. 12, s. 1.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 445.1 (3) and (4)

Evidence of Reasonable Care (446)

446
[omitted (1) and (2)]

Failure to exercise reasonable care as evidence

(3) For the purposes of proceedings under paragraph (1)(a) [wilful neglect causing injury while being transported], evidence that a person failed to exercise reasonable care or supervision of an animal or a bird thereby causing it damage or injury is, in the absence of any evidence to the contrary, proof that the damage or injury was caused by wilful neglect.

– CCC (CanLII), (DOJ)

Note up: 446 (3)

"Cattle"

s. 2
...
"cattle" means neat 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;
...
R.S., 1985, c. C-46, s. 2; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 2, 203, c. 31 (1st Supp.), s. 61, c. 1 (2nd Supp.), s. 213, c. 27 (2nd Supp.), s. 10, c. 35 (2nd Supp.), s. 34, c. 32 (4th Supp.), s. 55, c. 40 (4th Supp.), s. 2; 1990, c. 17, s. 7; 1991, c. 1, s. 28, c. 40, s. 1, c. 43, ss. 1, 9; 1992, c. 20, s. 216, c. 51, s. 32; 1993, c. 28, s. 78, c. 34, s. 59; 1994, c. 44, s. 2; 1995, c. 29, ss. 39, 40, c. 39, s. 138; 1997, c. 23, s. 1; 1998, c. 30, s. 14; 1999, c. 3, s. 25, c. 5, s. 1, c. 25, s. 1(Preamble), c. 28, s. 155; 2000, c. 12, s. 91, c. 25, s. 1(F); 2001, c. 32, s. 1, c. 41, ss. 2, 131; 2002, c. 7, s. 137, c. 22, s. 324; 2003, c. 21, s. 1; 2004, c. 3, s. 1; 2005, c. 10, s. 34, c. 38, s. 58, c. 40, ss. 1, 7; 2006, c. 14, s. 1; 2007, c. 13, s. 1; 2012, c.1, s. 160, c. 19, s. 371; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 23, s. 2, c. 25, s. 2; 2015, c. 3, s. 44, c. 13, s. 3, c. 20, s. 15; 2018, c. 21, s. 12; 2019, c. 13, s. 140; 2019, c. 25, s. 1; 2022, c. 17, s. 1.

– CCC (CanLII), (DOJ)

Note up: 2

445.01
[omitted (1), (2) and (3)]

Definitions

(4) The following definitions apply in this section.
"law enforcement animal" means a dog or horse that is trained to aid a law enforcement officer in carrying out that officer’s duties. (animal d’assistance policière)
"law enforcement officer" means a police officer, a police constable or any person referred to in paragraph (b), (c.1), (d), (d.1), (e) or (g) of the definition peace officer in section 2. (agent de contrôle d’application de la loi)
"military animal" means an animal that is trained to aid a member of the Canadian Forces in carrying out that member’s duties. (animal d’assistance militaire)
"service animal" means an animal that is required by a person with a disability for assistance and is certified, in writing, as having been trained by a professional service animal institution to assist a person with a disability. (animal d’assistance)
2015, c. 34, s. 3; 2019, c. 25, s. 171.

– CCC (CanLII), (DOJ)

Note up: 445.01 (4)

↑ Federal Dept. of Justice, Consultation Paper, Crimes Against Animals, 1998
R v Clarke, 2001 CanLII 12453 (NL PC), [2001] NJ No 191 (NLPC), per Gorman J
R v White, 2012 CanLII 43292 (NL PC), per Gorman J
R v Brown, 2004 ABPC 17 (CanLII), [2004] AJ No 201 (ABPC), per AJ Brown J, at para 31
↑ R v Connors, 2011 BCPC 24 (CanLII), [2011] BCJ 168 (BCPC), per Quantz J
↑ R v Gerling, 2016 BCCA 72 (CanLII), BCJ No 264, per Chiasson JA, at para 27
↑ Gerling, ibid.
↑ R v Menard, 1978 CanLII 2355 (QC CA), 43 CCC (2d) 458, per Lamer JA
↑ Menard, ibid.
↑ Clarke, supra, at para 73

Defences

Wilfully causing event to occur

429 (1) Every one who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part [Pt. XI – Wilful and Forbidden Acts in Respect of Certain Property (ss. 428 to 447.1)], wilfully to have caused the occurrence of the event.

Colour of right

(2) No person shall be convicted of an offence under sections 430 to 446 [certain property offences from Part XI] where he proves that he acted with legal justification or excuse and with colour of right.

Interest

(3) Where it is an offence to destroy or to damage anything,

(a) the fact that a person has a partial interest in what is destroyed or damaged does not prevent him from being guilty of the offence if he caused the destruction or damage; and

(b) the fact that a person has a total interest in what is destroyed or damaged does not prevent him from being guilty of the offence if he caused the destruction or damage with intent to defraud.

R.S., c. C-34, s. 386.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 429 (1), (2) and (3)

The defence afforded in s. 429 applies to s. 445.1(1)(a) and 446(1)(b).^[1]

↑ R v Gerling, 2016 BCCA 72 (CanLII), BCJ No 264, per Chiasson JA

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

Offence(s)	Victim Notice of Agreement s. 606(4.1) [SPIO]	Victim Queried for Interest in Agreement s. 606(4.2) [5+ years]	Victim Notice for Restitution s. 737.1	Victim Notice of Impact Statement s. 722(2)
s. 445 [killing and harming animals], 445.1 [causing unnecessary suffering] and 446 [causing damage or injury]

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 445, 445.1 and 446), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

For general principles and factors of violence and assault-based offences, see Violent and Assaultive Offences

Maximum Penalties

Offence(s)	Crown Election	Maximum Penalty
s. 445 [killing and harming animals], and s. 445.1 [causing unnecessary suffering]	summary election	$10,000 fine and/or 18 months jail
s. 446 [causing damage or injury]	summary election	$5,000 fine and/or 6 months jail
s. 445 [killing and harming animals], s. 445.1 [causing unnecessary suffering] and s. 446 [causing damage or injury]	indictable election	5 years incarceration
s. 445.01 [killing or injuring service animals] From April 17, 2008	indictable election	5 years incarceration
s. 446 [causing damage or injury]	indictable election	2 years incarceration

Offences under s. 445.1 and 446 are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration under s. 446, 5 years incarceration under s. 445, and 445.1. If prosecuted by summary conviction, the maximum penalty is $5,000 fine and/or 6 months jail under s. 446 or a $10,000 fine and/or 18 months jail under s. 445, or 445.1.

Minimum Penalties

Offence(s)	Crown Election	Minimum Penalty First Offence	Minimum Penalty Subsequent Offence
s. 445.01 [killing or injuring service animals]	indictable election	6 months incarceration	Same

Offences under s. 445 [killing and harming animals],
s. 445.1 [causing unnecessary suffering], and
s. 446 [causing damage or injury] have no mandatory minimum penalties.

Available Dispositions

Offence(s)	Crown Election	Discharge s. 730	Suspended Sentence s. 731(1)(a)	Stand-alone Fine s. 731(1)(b)	Custody s. 718.3, 787	Custody and Probation s. 731(1)(b)	Custody and Fine s. 734	Conditional Sentence (CSO) s. 742.1
s. 445.1 [causing unnecessary suffering] and s. 446 [causing damage or injury]	any

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Purpose and Principles of Sentencing

...

Objectives — offence against certain animals

718.03 When a court imposes a sentence for an offence under subsection 445.01(1) [killing or injuring certain animals], the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.
2015, c. 34, s. 4.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 718.03

History

Society's views on animal cruelty has been evolving.^[1]

The amendments from 2008 were for the purpose of "better reflect[ing] the serious nature of crimes of animal cruelty, provid[ing] better protection for animals who are the victims of such crimes, and enabl[ing[ flexibility in sentencing."^[2] It is also an acknowledgement that the sentencing ranges were "inadequate."^[3] It also "signals" a desire for parliament to deter and punish those who abuse animals.^[4]

↑ Alcorn, 2015 ABCA 182 at para 21
↑ Chen 2021 ABCA 382
↑ Alcorn at para 40
↑ R. v. Wright, 2014 ONCA 675 at para. 1

Ranges

see also: Animal Cruelty (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 445, 445.01, or 445.1	If an offence under s. 445, 445.01, or 445.1 is prosecuted by indictment, a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).
Animal Prohibition Orders (s. 447.1)	s. 445, 445.1, 446 or 447 ^[1]	prevent ownership of animals and restitution

General Sentencing Orders

Order	Conviction	Description
Non-communication order while offender in custody (s. 743.21)	any	The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738)	any	A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737)	any	A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).

General Forfeiture Orders

Forfeiture	Conviction	Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))	any	Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not* apply to summary offences*.
Fine in Lieu of Forfeiture (s. 462.37(3))	any	Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491)	any	Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1)	any	Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not* apply to summary offences*.

↑ Does not include s. 455.01 offences

Record Suspensions and Pardons

Convictions under s. 445, 445.01, or 445.1 are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

History of Animal Cruelty (Offence)