Animal Cruelty (Offence)
| Animal Cruelty | |
|---|---|
| s. 444, 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 (*) |
| Summary Dispositions | |
| Avail. Disp. | Discharge (730) Suspended Sentence (731(1)(a)) |
| 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 | |
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 is offences for injuring or endangering cattle (444), 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) |
|---|
Offences under s. 444, 445, 445.01, 445.1 and 446 are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).
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. 444, 445, 445.1 and 446 | Template:ReleaseProfileAll |
When charged under s. 444, 445, 445.1 and 446, 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.
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));
A peace officer who charges a person under s. 444, 445, 445.1 or 446 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
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Offence Wording
Injuring or endangering cattle
444. (1) Every one commits an offence who wilfully
- (a) kills, maims, wounds, poisons or injures cattle; or
- (b) places poison in such a position that it may easily be consumed by cattle.
Punishment
(2) Every one who commits an offence under subsection (1) 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 not exceeding ten thousand dollars or to imprisonment for a term of not more than eighteen months or to both.
R.S., 1985, c. C-46, s. 444; 2008, c. 12, s. 1.
– CCC
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 not cattle and 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 not cattle and are kept for a lawful purpose.
Punishment
(2) Every one who commits an offence under subsection (1) 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 not exceeding ten thousand dollars or to imprisonment for a term of not more than eighteen months or to both.
R.S., 1985, c. C-46, s. 445; 2008, c. 12, s. 1.
– CCC
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) 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 18 months or to both.
Sentences to be served consecutively
(3) A sentence imposed on a person for an offence under subsection (1) 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.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.
"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.
"military animal" means an animal that is trained to aid a member of the Canadian Forces in carrying out that member’s duties.
"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.
2015, c. 34, s. 3.
– CCC
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 or assists at the fighting or baiting of animals or birds;
- (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) 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 not exceeding ten thousand dollars or to imprisonment for a term of not more than eighteen months or to both.
...
2008, c. 12, s. 1.
– CCC
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) 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 and liable to a fine not exceeding five thousand dollars or to imprisonment for a term of not more than six months or to both.
...
R.S., 1985, c. C-46, s. 446; 2008, c. 12, s. 1.
– CCC
Proof of the Offences
|
Proving killing and harming animals under s. 445(1)(a) should include:
Proving killing and harming animals by poison under s. 445(1)(b) should include:
|
Proving killing and harming animals under s. 445.1 should include:
|
|
Proving neglecting animals under s. 446(a) should include:
|
Proving neglecting animals under s. 446(b) should include:
|
Interpretation of the Offence
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]
The person who "kept" the animal must exercise a degree of control over the animal.[3]
Presumptions on Intention and Baiting (445.1)
445.1.
...
Failure to exercise reasonable care as evidence
(3) For the purposes of proceedings under paragraph (1)(a), 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), 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.
– CCC
Evidence of Reasonable Care (446)
446.
...
Failure to exercise reasonable care as evidence
(3) For the purposes of proceedings under paragraph (1)(a), 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
"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;
...
- ↑
Federal Dept. of Justice, Consultation Paper, Crimes Against Animals, 1998
R v Clarke, 2001 CanLII 12453 (NL PC), [2001] NJ No 191 (NLPC)
R v White, 2012 CanLII 43292 (NLPC)
R v Brown, 2004 ABPC 17 (CanLII), [2004] AJ No 201 (ABPC) at para 31
- ↑ R v Connors, 2011 BCPC 24 (CanLII), [2011] BCJ 168 (BCPC)
- ↑ R v Clarke, 2001 CanLII 12453 (NL PC), 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, 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 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.
– CCC
Participation of Third Parties
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
For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 444, 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
- 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. 444 [injuring cattle], 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. 444 [injuring cattle], s. 445 [killing and harming animals], s. 445.1 [causing unnecessary suffering] and s. 446 [causing damage or injury] |
Indictable Election | 5 years custody |
| s. 445.01 [killing or injuring service animals] From April 17, 2008 |
Indictable Election | 5 years custody |
| s. 446 [causing damage or injury] | Indictable Election | 2 years custody |
Offences under s. 444, 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. 444, 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. 444, 445, or 445.1.
Minimum Penalties
| Offence(s) | Crown Election |
Minimum Penalty First Offence |
Minimum Penalty Subsequent Offence |
|---|---|---|---|
| s. 445.01 [killing or injuring animals, service animals] | Indictable Election | 6 months custody | Same |
Offences under s. 444, 445, 445.1, and 446 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. 444, 445.1 and 446 | 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), 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.
Ranges
- see also: Animal Cruelty (Sentencing Cases)
Ancillary Sentencing Orders
Offence-specific Orders
| Order | Conviction | Description |
|---|---|---|
| DNA Orders | s. 444, 445, 445.01, or 445.1 |
|
| Animal Prohibition Orders (s. 447.1) | s. 444, 445, 445.01, or 445.1 |
|
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. |
History
Offences against service animal under s. 445.01 were brought in on June 23, 2015 through the An Act to amend the Criminal Code (law enforcement animals, military animals and service animals), 2015, c. 34 (Bill C-35).
Prior to April 2008
Prior to April 17, 2008, the sections read:
Injuring or endangering cattle
444. Every one who wilfully
- (a) kills, maims, wounds, poisons or injures cattle, or
- (b) places poison in such a position that it may easily be consumed by cattle,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
R.S., c. C-34, s. 400.
– CCC
Injuring or endangering other animals
445. Every one who wilfully and without lawful excuse
- (a) kills, maims, wounds, poisons or injures dogs, birds or animals that are not cattle and 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 not cattle and are kept for a lawful purpose,
is guilty of an offence punishable on summary conviction.
R.S., c. C-34, s. 401.
– CCC
Causing unnecessary suffering
446. (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) by wilful neglect causes damage or injury to animals or birds while they are being driven or conveyed;
- (c) 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;
- (d) in any manner encourages, aids or assists at the fighting or baiting of animals or birds;
- (e) 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;
- (f) 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
- (g) 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 (f).
Punishment
(2) Every one who commits an offence under subsection (1) is guilty of an offence punishable on summary conviction.
Failure to exercise reasonable care as evidence
(3) For the purposes of proceedings under paragraph (1)(a) or (b), evidence that a person failed to exercise reasonable care or supervision of an animal or a bird thereby causing it pain, suffering, damage or injury is, in the absence of any evidence to the contrary, proof that the pain, suffering, damage or injury was caused or was permitted to be caused wilfully or was caused by wilful neglect, as the case may be.
Presence at baiting as evidence
(4) For the purpose of proceedings under paragraph (1)(d), 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 encouraged, aided or assisted at the fighting or baiting.
Order of prohibition
(5) Where an accused is convicted of an offence under subsection (1), the court may, in addition to any other sentence that may be imposed for the offence, make an order prohibiting the accused from owning or having the custody or control of an animal or a bird during any period not exceeding two years.
Breach of order
(6) Every one who owns or has the custody or control of an animal or a bird while he is prohibited from doing so by reason of an order made under subsection (5) is guilty of an offence punishable on summary conviction.
R.S., c. C-34, s. 402; 1974-75-76, c. 93, s. 35.
– CCC
See Also
Related Offences
- Injuring or endangering cattle (444)
- Keeping cockpit (447)
- Uttering Threats towards animals (264.1)
References
| |||||
| |||||