R. v Barrett (T.), (2015) 363 Nfld. & P.E.I.R. 1 (NLPC)

• Judge: Porter, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: January 05, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 363 Nfld. & P.E.I.R. 1 (NLPC)

R. v Barrett (T.) (2015), 363 Nfld. & P.E.I.R. 1 (NLPC);

    1129 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. JA.029

Her Majesty the Queen v. Tony Barrett

(Docket: 0814A00017)

Indexed As: R. v Barrett (T.)

Newfoundland and Labrador Provincial Court

Porter, P.C.J.

January 28, 2015.

Summary:

The accused was charged with the following offences: wilfully permitting unnecessary suffering and injury to animals that he owned (seven calves, one goat, one pony and 13 sheep (the animals)) by depriving them of sufficient quantity and quality of food to allow for normal, healthy growth and maintenance of normal, healthy body weight (Criminal Code, s. 445.1) (count 1); wilfully permitting unnecessary suffering and injury to the animals by depriving them of a sufficient quantity and quality of food to allow for normal, healthy growth and maintenance of normal, healthy body weight (Animal Health and Protection Act (AHPA, s. 18(2)) (count 2); permitting his five dogs to be in distress by failing to provide clean, fresh, unfrozen drinking water at all times (AHPA, s. 18(2)) (count 3); and permitting two of his dogs to be in distress by failing to provide adequate shelter (AHPA, s. 18(2)) (count 4).

The Newfoundland and Labrador Provincial Court convicted the accused on all counts but stayed proceedings on count 2.

Animals - Topic 7006

Offences - General - Strict liability offences - The accused was charged with, inter alia, wilfully permitting unnecessary suffering and injury to animals that he owned (seven calves, one goat, one pony and 13 sheep) by depriving them of a sufficient quantity and quality of food to allow for normal, healthy growth and maintenance of normal, healthy body weight (Animal Health and Protection Act, s. 18(2)) (count 2); permitting his five dogs to be in distress by failing to provide clean, fresh, unfrozen drinking water at all times (s. 18(2)) (count 3); and permitting two of his dogs to be in distress by failing to provide adequate shelter ( s. 18(2)) (count 4) - The Newfoundland and Labrador Provincial Court stated that notwithstanding the use of "wilfully" in count 2, these were regulatory offences and did not include any element of mens rea (i.e., strict liability offences) - The court found as a fact that the animals were underfed and, as a result, were malnourished - The wasting of the animals took considerable time - The accused did not feed his livestock sufficient quality or quantity of food to enable them to survive - As such, he permitted the livestock to be in distress - Count 2 was established, but as it was eclipsed by the accused's conviction on count 1 (a Criminal Code charge of wilfully permitting unnecessary suffering), the court stayed count 2 - See paragraphs 236 to 244.

Animals - Topic 7044

Offences - Particular offences - Causing or permitting an animal to be in distress - The accused was charged with, inter alia, permitting his five dogs to be in distress by failing to provide clean, fresh, unfrozen drinking water at all times (Animal Health and Protection Act, s. 18(2)) - The Newfoundland and Labrador Provincial Court stated that s. 13(1) of the Animal Protection Standards Regulations provided that "An owner of a dog shall comply with the basic standards for dog care that are prescribed in Schedule B." - Section 4 of Schedule B provided that "A dog shall be provided with the following: (a) clean, fresh, unfrozen drinking water, at all times" - Pursuant to s. 11(2) of the Interpretation Act, the use of "shall" made compliance with the legislation mandatory - The accused testified that he regularly provided the dogs with drinking water, but that he would take the water containers away from the dogs because they might tip the containers or the water might freeze - He admitted that the dogs did not have "clean, fresh, unfrozen drinking water, at all times as required by the Animal Protection Standards Regulations - He was therefore guilty - See paragraphs 245 to 249.

Animals - Topic 7044

Offences - Particular offences - Causing or permitting an animal to be in distress - The accused was charged with, inter alia, permitting two of his dogs to be in distress by failing to provide adequate shelter (Animal Health and Protection Act, s. 18(2)) - The Newfoundland and Labrador Provincial Court found the accused guilty - Schedule B of the Animal Protection Standards Regulations contained very specific requirements for a dog shelter - The accused was not in compliance with those requirements - One dog had a dog house that was so blocked by snow as to be unusable - The other dog was tied to the front steps of a farm house with no shelter at all - See paragraphs 250 to 252.

Animals - Topic 7046

Offences - Particular offences - Failing to provide adequate food, water, shelter or care - [See Animals - Topic 7006 and both Animals - Topic 7044 ].

Criminal Law - Topic 39.2

General principles - Mens rea or intention - Wilfully defined - Section 445.1(1)(a) of the Criminal Code provided that "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" - The Newfoundland and Labrador Provincial Court stated that "wilfully" in this context included reckless acts as well as acts done with a bad motive or evil intent or acts done by someone who knew what he was doing and intended to do it - See paragraphs 220 to 222.

Criminal Law - Topic 2343

Wilful acts respecting property - Cruelty to animals - Wilfully defined - [See Criminal Law - Topic 39.2 ].

Criminal Law - Topic 2343

Wilful acts respecting property - Cruelty to animals - Wilfully defined - The accused was charged with, inter alia, wilfully permitting unnecessary suffering and injury to animals that he owned (seven calves, one goat, one pony and 13 sheep (the animals)) by depriving them of sufficient quantity and quality of food to allow for normal, healthy growth and maintenance of normal, healthy body weight (Criminal Code, s. 445.1) - The Newfoundland and Labrador Provincial Court found the accused guilty - There was no evidence that the accused set out to starve his livestock to death, but there was strong evidence that was what he did by not giving them enough to eat - His extended failure to properly feed his livestock amounted to a marked departure from the norm - He was aware of the lack of nutrition available from the pasture and of the necessity of supplementing the feed, but chose not do so - He wilfully neglected or failed to provide suitable and adequate food and water - See paragraphs 218 to 235.

Criminal Law - Topic 2344

Wilful acts respecting property - Cruelty to animals - Causing unnecessary pain and suffering - [See second Criminal Law - Topic 2343 ].

Statutes - Topic 2417

Interpretation - Interpretation of words and phrases - General principles - "May" and "shall" - [See first Animals - Topic 7044 ].

Words and Phrases

Shall - The Newfoundland and Labrador Provincial Court held that the use of "shall" in the Animal Protection Standards Regulations, N.L. Reg. No. 36/12, and other provincial legislation, made compliance with that legislation mandatory - See paragraphs 246 to 248.

Words and Phrases

Wilfully - The Newfoundland and Labrador Provincial Court considered the meaning of this word as used in s. 445.1(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 220 to 222.

Cases Noticed:

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 4].

R. v. Corliss (1957), 120 C.C.C. 341 (Ont. Co. Ct.), refd to. [para. 222].

R. v. McHugh (1965), 5 N.S.R. 1965-69 515; 50 C.R. 263 (S.C. in banco), refd to. [para. 222].

R. v. Galloro, 2006 ONCJ 263, refd to. [para. 223].

R. v. Bennett, [2010] N.J. No. 230 (Prov. Ct.), refd to. [para. 225].

R. v. Kanda (A.) (2008), 233 O.A.C. 118 (C.A.), refd to. [para. 239].

R. v. Alexander (B.) (1999), 171 Nfld. & P.E.I.R. 74; 525 A.P.R. 74 (Nfld. C.A.), refd to. [para. 240].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 44 D.L.R.(3d) 351, refd to. [para. 244].

R. v. Bailey (D.) et al., [2009] N.S.R.(2d) Uned. 80; 2009 NSPC 3, refd to. [para. 244].

Statutes Noticed:

Animal Health and Protection Act Regulations (N.L.), Animal Protection Standards Regulations, N.L. Reg. No. 36/12, sect. 13(1) [para. 250]; Schedule B, sect. 4(a) [para. 247].

Animal Protection Standards Regulations - see Animal Health and Protection Act Regulations (N.L.).

Criminal Code, R.S.C. 1985, c. C-46, sect. 445.1(1)(a) [para. 220].

Counsel:

A. Manning, for the Crown;

M. Evans, Q.C., for the accused.

This matter was heard at Grand Bank, N.L., on July 21-23, and December 15 and 22, 2014, and January 5, 2015, by Porter, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following judgment on January 28, 2014.