DATE: 20030613

DOCKET: C38198

COURT OF APPEAL FOR ONTARIO

DOHERTY, ROSENBERG and ARMSTRONG JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Jamie Klukach

Applicant/Appellant

for the appellant

• and -

Mark J. Sandler

JESSE POWER

for the respondent

Respondent

Heard: May 28, 2003

An application for leave to appeal and if leave is granted, an appeal from the sentence imposed by the Justice Edward F. Ormston, of the Ontario Court of Justice, on April 18, 2002.

DOHERTY J.A.:

I

[1] The respondent pled guilty to one count of mischief to property (s. 430(1)(a) of the Criminal Code) and one count of cruelty to animals (s. 446(1)(a) of the Criminal Code). On April 18, 2002, he was sentenced to 90 days intermittent on the cruelty to animals charge and to a consecutive, conditional 18 month sentence followed by three years probation on the mischief charge.

[2] The Crown seeks leave to appeal and if leave is granted, seeks an order varying the sentences so as to require the respondent to serve an additional 10 months in custody.

[3] I would grant leave to appeal the sentences, but would dismiss the appeal.

II

[4] The respondent and two others[^1] captured a healthy domestic cat belonging to an unknown third party and took it to an abandoned building. They proceeded to torture and finally kill the helpless animal. The respondent videotaped this process. The police, acting on information received from a roommate of the respondent, went to his apartment. They discovered the skinned body of the cat hanging in the refrigerator. The cat’s head was in a zip lock bag in the freezer. The police also located the videotape made of the torturing and killing of the cat. This videotape became the centrepiece of the Crown’s case.

[5] The torturing and killing of the cat took almost six minutes. I will not attempt to describe the wanton cruelty visited upon this poor animal by the respondent and his two associates. Their conduct is nauseous in the literal sense of that word. It is obvious from the videotape that the respondent was in charge. It is equally clear that all three were willing and full participants in the torture of the cat. I see little point in distinguishing among the various acts of cruelty perpetrated by each individual. They were all equally responsible for everything that was done to this animal.

[6] There was considerable debate in the sentencing proceeding as to the respondent’s motivation for this vile act. The trial judge found that the respondent did not set out to catch and torture a cat:

I believe that this was a misguided venture conceived in furtherance of his artistic desire to challenge the conventions of a meat eating society …

… I do not believe that he [Mr. Power] meant the cat to suffer. I believe that he intended to kill it quickly, but was incompetent. It became cruel and he was reckless in letting it happen.

[7] This court must show deference to the trial judge’s findings of fact. I have no difficulty in accepting his finding as to the respondent’s intention and state of mind prior to the commencement of the torture of the cat. If, however, the trial judge’s findings go so far as to hold that even during the infliction of the torture on the cat, the respondent did not intend that the cat should suffer, I must reject that finding of fact as patently unreasonable. Although the respondent had apparently ingested some drug, there is nothing in the videotape or in his subsequent conduct to suggest that he did not fully appreciate and, indeed, to some extent, relish in the cruelty inflicted upon this cat. It is impossible to interpret his actions as indicative of a desire to bring about a quick end to the cat’s suffering. While it may help those who cannot reconcile this act with the respondent’s character, to rationalize his actions as some form of artistic endeavour or artistic commentary gone amuck, that interpretation is inconsistent with the contents of the videotape. Whatever the respondent’s intentions or motives at the outset, this became torture for torture’s sake.

[8] The trial judge characterized this case as “very high on the continuum of the worst offence”, although not the worst offence. I agree with Crown counsel that the “worst offence” appellation is properly applied to that group of offences which, because of the manner in which they are committed, could attract the maximum penalty depending on the factors particular to the offender: R. v. Olson (1999), 1999 1541 (ON CA), 131 C.C.C. (3d) 355 at para. 49 (Ont. C.A.). The cruelty practised here brings this case within that category of worst offence.

[9] The respondent is, however, far from the worst offender. Indeed, the conduct which brought him before the criminal court was completely out of character. He was twenty-one years of age at the time he committed these offences and had no criminal record. The respondent is an intelligent, artistically gifted, principled young man with a strong social conscience that has led him to strongly support various worthwhile causes. He is truly remorseful for his actions and the negative repercussions those actions have had on his family and others. He has felt the wrath of the community in a very direct way, but continues to enjoy the strong support of his immediate family and those in charge of the school he attends.

[10] Dr. Klassen, a psychiatrist, provided a detailed psychiatric assessment of the respondent. He was satisfied that the respondent did not suffer from a mental disorder and that he did not present a risk to the community. Dr. Klassen observed:

My clinical impression, based on my time spent with Mr. Power, the results of psychometric testing, and a review of collateral information, is that this individual offended out of some combination of adolescent self-importance, an ultimately egocentric morality (insofar as while the pretext for his actions has typically been to challenge and inform society. His lack of awareness of the nature of the response that his actions might garner suggests that he ultimately was relatively egocentric in his thinking), association with particular peers and, perhaps to an extent, the need to challenge conventions of morality that is seen as an imperative in some artistic circles.

[11] In summary, the trial judge was faced with the difficult task of crafting a fit sentence for a young first offender who, but for this terrible act, is a good person with considerable potential.

III

[12] The trial judge’s reasons for sentence are thorough and thoughtful. He observed that the offence of cruelty to animals was a summary conviction offence with a maximum penalty of six months. The offence of mischief to property where, as in this case, the Crown proceeded by indictment, was subject to a maximum penalty of two years. The trial judge concluded, quite properly, that despite the positive features of the respondent’s character and background, principles of deterrence and denunciation required a period of incarceration on the cruelty to animals charge. He imposed a sentence of 90 days intermittent having regard to the seven days the respondent had spent in the Don Jail prior to his release on bail. In effect, the trial judge imposed a three and a half month sentence on the cruelty to animals charge.

[13] The trial judge also concluded that a consecutive sentence on the mischief charge was appropriate. He imposed an 18 month conditional sentence to be followed by three years probation. The trial judge attached stringent terms to the conditional sentence, including virtual house arrest for the first nine months and an order requiring that the respondent perform 240 hours of community service. The respondent is subject to some form of supervision for five years by virtue of the sentences imposed on him.

[14] The respondent has completed his intermittent sentence, the most stringent portion of the conditional sentence, and has performed well over half of the community service he is required to perform under the conditional sentence. He has complied with all court orders.

IV

[15] In submitting that the sentence should be varied to require an additional ten months incarceration, the Crown accepts that the two offences properly attracted consecutive sentences and that both offences warrant incarceration. I cannot accept either premise. The real harm to which this sentence had to be directed was the cruelty done to the cat. While the mischief charge was made out given that the cat belonged to someone else, that charge added little to the wrong for which the respondent had to be punished. That wrong, the cruelty to the cat, is punishable by a maximum of six months in jail. That maximum cannot be artificially increased by adding a second charge which arises from exactly the same conduct and addresses an interest which is only tenuously engaged in the circumstances. I repeat, the conduct for which the respondent primarily had to be punished was the cruelty done to the cat and not the interference with some unknown person’s property rights in the cat.

[16] In sentencing the respondent, the trial judge was required to focus on the cruelty done to the cat as this was the conduct for which the respondent most deserved punishment. In fixing the appropriate penalty, the trial judge had to bear in mind that six months was the maximum penalty provided for that offence. It may well be that the present maximum is wholly inadequate. That is, however, a matter for Parliament.[^2] Considering the maximum penalty available and the total effect of the sentences imposed by the trial judge, it cannot be said that those sentences do not adequately reflect the seriousness of the respondent’s conduct and the harm done by that conduct.

[17] I would grant leave to appeal, but would dismiss the appeal by the Crown.

RELEASED: “DD”

“JUN 13 2003”

“Doherty J.A.”

“I agree M. Rosenberg J.A.”

“I agree Robert P. Armstrong J.A.”

[^1]: Ryan Wennekers pled guilty with the respondent. He was sentenced to time served (10 and a half months) and three years probation. The third person had not been apprehended as of the sentencing of the respondent.

[^2]: As the trial judge observed, there is presently legislation pending that would increase the penalty for cruelty to animals to five years.