R. v. Gerling (M.L.), (2016) 383 B.C.A.C. 90 (CA)

• Judge: Chiasson, Savage and Fitch, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 05, 2015
• Jurisdiction: British Columbia
• Citations: (2016), 383 B.C.A.C. 90 (CA);2016 BCCA 72

R. v. Gerling (M.L.) (2016), 383 B.C.A.C. 90 (CA);

    661 W.A.C. 90

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. FE.037

Regina (respondent) v. Melvin Leonard Gerling (appellant)

(CA41853; 2016 BCCA 72)

Indexed As: R. v. Gerling (M.L.)

British Columbia Court of Appeal

Chiasson, Savage and Fitch, JJ.A.

February 17, 2016.

Summary:

The accused was convicted of one count of wilfully causing unnecessary pain, suffering or injury to an animal contrary to s. 445.1(1)(a) of the Criminal Code and one count of wilfully neglecting or failing to provide suitable and adequate food, water, shelter or care contrary to s. 446(1)(b) of the Code. He appealed. At issue, inter alia, was the mens rea element of certain animal cruelty provisions of the Criminal Code, the obligation of a trial judge to assess evidence to the contrary adduced by an accused and the appropriateness of the seizure of animals by animal protection authorities without giving the owner of the animals an opportunity to relieve their distress.

The British Columbia Court of Appeal dismissed the appeal. The court held that the trial judge erred in his approach to the mens rea issue regarding the first offence. The court stated that it was not not clear why the presumption of proof provision, which applied to ss. 446(1)(a) and 445.1(1)(a) of the Criminal Code, did not apply to s. 446(1)(b). Although the judge erred in his consideration of this issue, applying the correct test to the evidence and the trial judge's findings of fact, the conviction was unassailable. Insofar as it might be necessary to do so, the court exercised its discretion in accordance with s. 686(1)(b)(iii) of the Code on the basis that, even if the judge erred in applying an objective test, no substantial wrong or miscarriage of justice occurred by reason of the accused's conviction.

Animals - Topic 7044

Offences - Particular offences - Causing or permitting an animal to be in distress - See paragraphs 25 to 43 and 48.

Animals - Topic 7046

Offences - Particular offences - Failing to provide adequate food, water, shelter or care - See paragraphs 25 to 43 and 48.

Criminal Law - Topic 2343

Wilful acts respecting property - Cruelty to animals - Wilfully defined - See paragraphs 25 to 40.

Criminal Law - Topic 2344

Wilful acts respecting property - Cruelty to animals - Causing damage or injury (incl. failing to provide necessities) - See paragraphs 25 to 43 and 48.

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - See paragraph 51.

Cases Noticed:

Ulmer v. British Columbia Society for the Prevention of Cruelty to Animals (2010), 295 B.C.A.C. 282; 501 W.A.C. 282; 2010 BCCA 519, refd to. [para. 16].

R. v. Hughes (J.R.), [2008] B.C.T.C. Uned. 361; 2008 BCSC 676, refd to. [para. 21].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 30].

R. v. Vuradin (F.) (2013), 446 N.R. 53; 553 A.R. 1; 583 W.A.C. 1; 2013 SCC 38, refd to. [para. 30].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-45, sect. 429(1), sect. 445.1(1)(b), sect. 445.1(3), sect. 446(1)(b) [para. 9].

Prevention of Cruelty to Animals Act, R.S.B.C. 1996, c. 372, sect. 11 [para. 9].

Counsel:

D. Petri, for the appellant;

L. Ruzicka, for the respondent.

This appeal was heard at Vancouver, B.C., on November 5, 2015, by Chiasson, Savage and Fitch, JJ.A., of the British Columbia Court of Appeal. Chiasson, J.A., delivered the following decision for the court on February 17, 2016.