R. v. Shmyr (K.A.), 2015 SKPC 15

• Judge: Cardinal, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: January 27, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKPC 15;(2015), 468 Sask.R. 88 (PC)

R. v. Shmyr (K.A.) (2015), 468 Sask.R. 88 (PC)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. FE.021

Her Majesty the Queen v. Kerry Allan Shmyr

(Information Nos. 24501330; 24501329; 2015 SKPC 15)

Indexed As: R. v. Shmyr (K.A.)

Saskatchewan Provincial Court

Cardinal, P.C.J.

January 27, 2015.

Summary:

The accused was charged with two counts of wilfully causing unnecessary pain to a dog (Criminal Code, s. 445.1(1)(a)) and one count of causing or permitting the dogs to be or continue to be in distress (Animal Protection Act. s. 4).

The Saskatchewan Provincial Court found the accused not guilty.

Animals - Topic 7044

Offences - Particular offences - Causing or permitting an animal to be in distress - A dog (Buddy) lived on an acreage belonging to the accused - The accused found Buddy laying on the ground one morning and thought that he might have been hit by a car - Buddy was panting extensively and was overheated - The accused poured water over Buddy in an attempt to cool him off - He also attempted to cut mud off of his fur and nicked the end of Buddy's tail with the scissors - He wrapped Kleenex and electrical tape around the tail - The accused then left Buddy as his estranged wife had been contacted and was on her way to take Buddy to the veterinarian - The veterinarian found that Buddy was extremely weak - When his matted fur was moved aside, open wounds and sores containing maggots were found around his body, especially on his face - Buddy was euthanised - The accused was charged with causing or permitting Buddy to be or continue to be in distress (Animal Protection Act, s. 4) - The Saskatchewan Provincial Court found the accused not guilty - Although it was the accused's stepson who owned Buddy, the accused was clearly the person responsible for his care - However, while it might have been more prudent and humane to stay with Buddy until his estranged wife arrived, the evidence fell short of proving long term neglect associated with the matted fur and maggot infestation, and the accused did not deliberately cut Buddy's tail - See paragraphs 68 to 70.

Animals - Topic 7044

Offences - Particular offences - Causing or permitting an animal to be in distress - A dog (Snowy) lived on an acreage belonging to the accused - The dog was owned by the accused's estranged wife - Snowy was 18 years old - One day, the wife went to the acreage and noticed that Snowy was very dirty - Parts of the dog were covered with what she believed were flea faeces - A veterinarian observed that Snowy had a low body weight, plaque on the teeth, loose teeth that should be pulled, a heart murmur, and arthritis - The accused was charged with wilfully causing unnecessary pain to a dog (Criminal Code, s. 445.1(1)(a)) and causing or permitting a dog to be or continue to be in distress (Animal Protection Act. s. 4) - The Saskatchewan Provincial Court found the accused not guilty of either offence - None of the observations made of Snowy on their own or taken together satisfied the criminal threshold of wilfully causing long term neglect - Snowy was an old dog who was displaying the frailties that accompanied old age - A pet owner who failed to follow through with a course of treatment advised by a veterinarian, such as having loose teeth pulled, was not necessarily guilty of causing pain or distress or neglect - See paragraphs 60 and 61.

Criminal Law - Topic 2344

Wilful acts respecting property - Cruelty to animals - Causing damage or injury (incl. failing to provide necessities) - A dog (Buddy) lived on an acreage belonging to the accused - The accused found Buddy laying on the ground one morning and thought that he might have been hit by a car - Buddy was panting extensively and was overheated - The accused poured water over Buddy in an attempt to cool him off - He also attempted to cut mud off of his fur and nicked the end of Buddy's tail with the scissors - He wrapped Kleenex and electrical tape around the tail - The accused then left Buddy as his estranged wife had been contacted and was on her way to take Buddy to the veterinarian - The veterinarian found that Buddy was extremely weak - When his matted fur was moved aside, open wounds and sores containing maggots were found around his body, especially on his face - Buddy was euthanised - The accused was charged with wilfully causing unnecessary pain to Buddy (Criminal Code, s. 445.1(1)(a)) - The Saskatchewan Provincial Court found the accused not guilty - There was no evidence that the accused wilfully or deliberately injured Buddy - Nor was there any evidence of long term neglect - It was possible that the maggot infestation could have progressed very quickly - While it was also possible that a lack of grooming had led to the maggot infestation, neither of the witnesses who were veterinarians testified that Buddy's matted fur had contributed to the infestation in this case - See paragraphs 62 to 67.

Criminal Law - Topic 2344

Wilful acts respecting property - Cruelty to animals - Causing damage or injury (incl. failing to provide necessities) - [See second Animals - Topic 7044 ].

Cases Noticed:

R. v. Loerzel (R.) (2007), 304 Sask.R. 141; 413 W.A.C. 141; 2007 SKCA 107, refd to. [para. 59, footnote 1].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 67, footnote 2].

Counsel:

Tyla Olenchuk, for the Crown;

Grant Carson, for the accused.

This matter was heard at Melfort, Saskatchewan, before Cardinal, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on January 27, 2015.