WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2), read as follows:

486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES

(1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) OFFENCES – The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

486.6 OFFENCE

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: June 27, 2018

Court File No.: Ottawa 18-RD19571

Between:

Her Majesty the Queen

— and —

Kelly Florence

Before: Justice Heather Perkins-McVey

Reasons for Judgment released on: June 27, 2018

Counsel:

• Ms. Tara Dolbec – counsel for the Crown
• Mr. Robert Carew – for the Accused, Kelly Florence

Judgment

PERKINS-McVEY J.:

Facts and Charges

[1] The Accused pled guilty to the following charges: Uttering Threats to Cause Death to T.R. contrary to section 264.1(1)(a) of the Criminal Code, Possession of a Weapon for a Purpose Dangerous to the Public Peace contrary to section 88(1) of the Criminal Code, Maim, Wound or Injure a Dog contrary to section 445(2) and Breach of Probation contrary to section 733.1(1) of the Criminal Code.

[2] The synopsis was filed along with witness statements and officer witness statements as well as photos of Miya, the injured dog, to form the agreed evidence at the sentencing hearing. These are filed as Exhibit No. 1 Book of Evidence for Plea and Sentence.

[3] The facts in summary are as follows: The Accused and T.R., who is the Victim of the threats, have been living together for two and a half years and in a relationship for three years. On the date in question, T.'s two daughters were visiting.

[4] On December 29th at approximately 5:30 a.m., the Accused entered the bedroom where T.R. and her daughters were sleeping, waving a knife around in his hand while holding onto the door knob with his other hand. T. reports he had been acting strangely for a couple of days prior, so this was very concerning behaviour. The Accused told T. he would cut her throat from ear to ear. T. locked the door and later that morning, she left to stay at her father's home. She returned again later that day and the Accused did not bother her.

[5] On Sunday, December 31st, the Victim again returned home. Mr. Florence began talking about how materialistic they were and that they needed to shed all their possessions. According to T.'s statement, he also talked about alien races and told the eldest daughter she was a reptilian snake and that is why his old dog bit her. He told the Victim and the children that he would cut off their heads and put them on a belt to wear. Given the Accused's mental state they were all frightened. T. left with the children, leaving the Accused alone with their dog M.

[6] On Monday, January 1st, 2018, the Accused reports to have been hearing voices from God telling him he needed to cleanse Miya from evil. He then took a knife and stabbed the dog at least three times in the throat area. The Accused then left the dog and went out for breakfast. On returning he told a neighbour what he had done and police were called.

[7] While being interviewed by police, he agreed that he had stabbed the dog to cleanse it of evil. He also said that if T. was present in the room, he would cleave off her head to cleanse her as well, as he believed she and her eldest daughter were filled with parasites.

[8] Miya was taken for emergency treatment for four lacerations of various sizes and depths on her neck. There was also one wound to the right side of her body and one large wound to her face. Multiple wounds were seen on her torso area. Miya was given IV fluids, pain medications and antibiotics to avoid infection or sepsis. Miya had surgery to close the lacerations. The cost of this treatment was $2,280.00. Funds to cover this expense were raised by the community.

[9] Prior to December 29th, 2017, the Accused was acting bizarrely and is reported not to have been taking his prescribed medication. There is also evidence that the Accused had consumed alcohol and had relapsed with his use of drugs. He apparently overdosed and T. had saved him just prior to December 31st. It is reported by the Victim that just prior to the event, Mr. Florence had become obsessed with watching YouTube videos about reptilians, aliens and expressed belief in outlandish conspiracy theories. As a result, after his arrest and in part due to his bizarre behaviour while giving his statement to the police, the Accused was assessed on two occasions for criminal responsibility to determine the degree of his mental impairment during the commission of the offences before the Court. The opinion of Dr. Watts is that although Mr. Florence may have been unable to know the wrongfulness of his alleged offences due to experiencing delusional beliefs, these were the result of having voluntarily consumed intoxicants and accumulated stress and were not causally linked to mental illness. Dr. Watts states at page 27: "His motivation for threatening Ms. T.R. and her children, waving the knife around in a threatening fashion and later stabbing the dog may have been based on delusional beliefs or him misperceiving reality. He had previously experienced such symptoms as result of drug use and one has only to look at him in 1997 to see the parallels." Despite this diagnosis of drug induced psychosis, Dr. Watts recommends that Mr. Florence continue taking his anti-psychotic medication as it may reduce his agitation and proneness to reacting with impulse aggression.

[10] Mr. Florence is otherwise a 46 year-old man with a criminal record. He has dated entries for robbery from 1998 and 1999, convictions for Thefts and Fail to Comply and in 2016, he received a suspended sentence and 18 months' probation and a ten year weapons prohibition for a charge of Assault with a Weapon. He supports himself through ODSP. He had a difficult childhood and was sexually abused by a babysitter as young child. Mr. Florence has had addiction issues at various times throughout his life but prior to his incarceration, had been working and/or volunteering at the Sandy Hill Community Centre and involved with their harm reduction group for the last couple of years. He was also on the Safe Injection Site Board and the Ontario Harm Reduction Board. Defence Counsel filed as Exhibit No. 3 a Book of Sentencing Materials. Filed at Tab No. 2 is a letter from Sean LeBlanc of Ottawa Inner City Health Dual Proud. He states that he has worked with Mr. Florence on many community projects and that he has always been impressed by the Accused's leadership and ability to relate to people living in marginalized circumstances. He says that Kelly has been an integral part of the P.R.O.U.D. (Participatory Research in Ottawa Understanding Drugs) study which Mr. LeBlanc co-chaired. He has also been very active in the harm reduction community. It is said that despite having suffered a lot of trauma and having battled addiction and mental health issues that Kelly has shown resilience and a desire to move beyond that to assist others. A similar letter of support was provided from Jordan McLean a social worker at the Somerset West Community Health Centre. Further, Ms. Bate of the Sandy Hill Oasis Program indicates that for the last three years Mr. Florence has been a strong advocate for social change for people who lived with experience of marginalization, poverty and substance abuse. He has facilitated meetings, found opportunities for advocacy and encouraged his peers to engage in community events. For the last two years he has facilitated a bi-weekly group "supper and support" at the Sandy Hill Community Centre. The community leaders listed above, say Kelly has a strong network of support in the community including the Sandy Hill Community Health Centre and that they will continue to support him on his release.

[11] Ms. T.R. also provided a letter to the Court. She shares similar admiration for the work Mr. Florence has done for the community and to assist her with her addiction and mental health issues. She indicates that Kelly Florence is an animal lover who loved Miya very much. She indicates that when their apartment caught fire and Miya was trapped inside, that Kelly ran past firefighters to get back into the apartment to save her. She says that Kelly did some very bad things when he was in psychosis but that this is not a true reflection of the person he is. She wants Kelly to get help and return to being the person she knows him to be.

Position of the Parties

[12] The Crown seeks a jail term of two years less pre-sentence custody for the Animal Maiming or Cruelty charge and six to twelve months concurrent on the Threats and other charges. The Crown also seeks a section 109 Weapons Prohibition and that a sample of the Accused DNA be taken for the DNA Data Bank. Further, that the Court impose a Lifetime Ban on the accused owning any animals. The Crown argues that such a sentence would reflect the need to denounce and deter such conduct and reminds the Court that Society's views toward acceptable ways to treat animals has evolved and that recent sentences reflect and upward trend towards increased use of incarceration in such cases. Ms. Dobec argues that this animal abuse is at the higher end of the scale and that the threats made are serious and very specific towards the Victim and her children. It goes without saying that as these occurred in a domestic context, that this is statutorily aggravating.

[13] On behalf of the Accused, the Defence is seeking a sentence of four to six months for the Animal Cruelty charge and two months on the Threatening charge. He argues that these events occurred when the Accused was in a full blown drug induced psychosis and this must reduce his degree of moral blameworthiness. He says this was not an act of revenge but rather a frenzied attack on the dog when under the delusional belief that the dog was full of evil to be exorcised.

[14] The central issue to be determined is, what is the appropriate sentence for these types of offences and how much should the sentence be reduced to reflect the fact that they occurred when he was experiencing delusional beliefs or misperceiving reality. On behalf of the Accused both counsel agree that if the sentence is less than two years that a period of probation might assist in his rehabilitation.

[15] It must be noted that the Accused has been in custody since January 1st, 2018, or as of the date of sentence, approximately six months. I would consider applying the enhanced rate for Mr. Florence so he will have completed an equivalent sentence of nine months as of the date of sentence.

Part I: Sentencing Range for Animal Cruelty

There is no clear sentencing range for animal cruelty

[16] In R v. Helfer, for example, the offender kicked the family dog, lifted her up by the chain around her neck, hit her with a rake, and then repeatedly hit her with a shovel before dumping the dog in the dumpster. The dog survived. The offender received a sentence of two years from this court. This was a harsher sentence than any other comparable case. It should be noted that there were charges in addition to animal cruelty for which he was sentenced. In R v. Connors, 2011 BCPC 24, the offender beat his friend's dog to death in a fit of alcohol and steroid fuelled rage. He was sentenced to five months in addition to 1-month pre-trial custody plus two years' probation. In R v. Acorn, the offender received a 20-month sentence for stabbing a cat, hanging it from the rafters and having intercourse underneath it as it bled to death.

There is, however, a pattern

[17] In R v. Alcorn, Stevenson, J. of the Alberta Court of Appeal, was faced with the same dilemma as before this Court. Justice Stevenson found that the group of relevant cases did not establish a range, cap, or overall policy strategy for animal cruelty cases. However, two things the ABCA noted are especially relevant. First, the court noted at para. 40 of the Alcorn decision that though the Crown submitted that sentences appear to be rising, there was insufficient information to establish that. Second, the court quoted a dissenting opinion from 2011: "A civilized society should show reasonable regard for vulnerable animals'. Sentient animals are not objects."

[18] While reviewing the case law in the area of animal cruelty, there is pattern emerging to reflect an increasing periods of incarceration in these types of offences since the 2008 amendment.

[19] For example, in R v. Wright, 2014 ONCA 675, the Court imposed a nine month sentence for an accused who had been convicted of multiple offences related to animal cruelty. The accused had originally received a suspended sentence and probation having previously served three months of pre-sentence custody. The court noted that considering the gravity of the specific offences, the number of convictions, and the accused's criminal record which demonstrated a propensity for violence and disregard for judicial orders as well as the accused's abject failure to accept responsibility for his conduct that a further jail sentence was required. The Ontario Court of Appeal also noted that Amendments to the Criminal Code made in 2008 signaled an added determination by Parliament to deter and punish those who engage in acts of cruelty to animals.

[20] In R v. Munroe, 2012 ONSC 4768, Justice Code said that although a twelve-month sentence is an appropriate starting point for an animal cruelty offence when sentencing focused on denunciation and deterrence, the Trial Judge had failed to consider the accused's lack of prior record and strong antecedence. The Court thereafter imposed a six month jail sentence, three years' probation and a twenty-five year pet ownership ban. It was felt this reduced sentence addressed the required principles of denunciation and deterrence but also addressed rehabilitation which was a relevant sentencing principle for that accused.

[21] In R v. Helfer, Alder, J. noted the Crown's range of thirty days to nine months for animal cruelty cases (where the Crown proceeded summarily). However, the sentence issued in that case was two years. Clearly this sentence is at the upper end of the range.

[22] R v. Habermehl appears to be an example of the lower end of sentences imposed for violent animal cruelty.

[23] In Habermehl, the offender received a sentence of ninety days for striking the family cat with a single blow, leading, in part, to the cat being euthanized. The ABPC considered as mitigating factors that the offender was frustrated with the cat's behaviour and that the injury was caused by a single blow. The aggravating factors, were the extent and severity of the injuries, the lack of remorse of the offender, and "the callous disregard the Offender showed toward the cat after inflicting the injuries."

[24] In Helfer the accused was in a domestic dispute with his mother. He dragged the family dog outdoors, kicked her, lifted her up by a chain collar, and beat her with a rake and shovel until she lay bloodied and unmoving. He then dumped her body in the garbage dumpster. Miraculously, the dog survived. Mr. Helfer was sentenced to two years.

[25] In R v. Hill the offender was asked by a family to take their dog, who could not live with their new child, to the Humane Society for adoption. Mr. Hill collected the $60 dollars from the family for the adoption fee but instead of delivering the dog, bound its paws and snout with tape and left it to die in a field. There was a joint submission of two years jail. These two cases to date reflect the higher ended of the range for cases of animal cruelty.

[26] It goes without saying however, that no case is exactly on point and that sentencing is a very individualized process with the specific circumstances of each case and each offender being carefully considered to arrive at a fair and just determination of sentence. In this case Mr. Florence was in a drug induced psychosis suffering from delusional beliefs when this offence occurred and as such this must be taken into account in assessing his moral blameworthiness.

Part II: Drug Induced Psychosis and Moral Culpability and Blameworthiness

[27] While drug-induced psychosis has been considered in some cases as a mitigating factor, there are cases in which the drug abuse leading to psychosis has been characterized as aggravating.

Drug-induced psychosis has been applied as a mitigating factor

[28] In R v. Bogue, the offender was in a drug-induced psychosis when he set fire to a home. However, he was not under the influence of drugs at the time of the offence.

[29] Merrick, J. considered the offender's drug induced psychosis a mental illness, leading him to conclude that deterrence was of less importance. He further wrote:

As well, severe punishment is less appropriate in cases of persons with such mental illnesses since it would be disproportionate to the degree of responsibility of the offender. This decreased emphasis on punishment and deterrence in these circumstances is consistent with the proportionality principle in s. 718.1 of the Criminal Code.

Thus, the mental illness of an offender will often be considered a mitigating factor in sentencing, even though it is not of the sort that it would establish a verdict of not criminally responsible on account of mental disorder at the time of the commission of the offence.

The focus in sentencing such offenders may properly therefore be placed on mechanisms that will promote rehabilitation and treatment, rather than on punishment (see R. v. Peters, 2000 NFCA 55, paragraphs 18 and 19).

[30] Mr. Bogue's mental illness and significant steps towards rehabilitation and recovery prompted Merrick, J. to shift from deterrence to treatment in his sentencing and hand down a suspended sentence.

The drug abuse leading to drug-induced psychosis has been characterized as aggravating

[31] In R v. McCormick, the BCSC wrote: "Persons who commit violent crimes while in the throes of a drug-induced psychosis can still expect to receive serious sentences because the principle of general deterrence plays a paramount role." However, they also noted that deterrence and denunciation cannot "inappropriately overwhelm rehabilitation."

[32] In R v. Hamlyn, the ABCA substituted a 21-month custodial sentence for the trial sentence of two years' probation. Both the trial and appeal court found the that the offender's drug-induced psychosis was only somewhat mitigating: "The sentencing judge noted that the violent assault was caused by drug-induced psychosis; thus, if the offender wished not to be psychotic he must not take drugs, and can blame no one but himself for what he had done." That being said the BC Court of Appeal in R v. Hicks, 1995 BCJ 545 at paras. 15 to 17, indicated that a cocaine induced psychosis attached a reduced degree of moral blameworthiness although they did not set aside the Trial Judge's decision due to the principle of deference.

[33] Perhaps the case that is closest to the case at Bar is the matter of R v. Conners, 2011 BCPC 24. In that case, the accused was caring for a friend's dog who was suffering from an infection and defecated inside the house. Fueled by anger, alcohol and steroids, the accused exploded with violence to the dog who died from broken ribs, internal injuries and bleeding from blunt force trauma. He received a sentence of six months plus probation. Also in the case of R v. Tremblay, 2012 BCPC 410, the accused was under the influence of heroin. The dog was hit with a hammer to its head toes and body. A jail sentence of six months and thirty months' probation was imposed. It is noted however that there is a significant difference between committing an offence while under the influence of drugs and committing an offence while in a drug induced psychosis. The latter being at the extreme where the effect goes beyond impairment and affects the accused so that they experience delusional beliefs.

[34] There is no doubt that increasingly Canadian society views the denouncement of violence against animal more comparably to violence against humans than to other types of property related crimes. However, it must be noted that animal cruelty is still situated within the Property type crime section of the Criminal Code. This is reflected in the 2008 amendment to the Criminal Code which "represented a fundamental shift in Parliament's approach to [animal cruelty]"; the maximum penalty for these offences increased ten-fold. Many of the cases the Crown and Defence rely on emphasized this amendment. R v. White, [2012] NJ No 263, provided by the Defence at para. 9, refers to one's treatment of animals as a "barometer" of that person's treatment of people.

[35] If Mr. Florence had not been under a drug induced psychosis then the principles of deterrence and denunciation would be the predominant sentencing principles but in this case rehabilitation must also necessarily play a significant role. I do find that his degree of moral blameworthiness was reduced at the time of the commission of the offences before the Court. He was said to be acting bizarrely in the days before the offences, he was experiencing delusional beliefs and committed the offences while acting on the delusional belief that he needed to rid the dog of evil and Ms. T. and her eldest daughter also.

Mitigating and Aggravating Factors

[36] Mitigating factors I take into account are as follows:

• Pled guilty sparing the Victims from testifying. He saved court time by his plea which must be a mitigating factor. The accused has demonstrated his remorse for what happened;

• Drug induced psychosis which reduces his moral blameworthiness. The stabbing was more of a drug psychosis frenzy;

• Letters of support show that the Accused is capable of rehabilitation and has been a community leader in the area of Harm Reduction, Safe Injection Sites etc. He has a network of community support;

• The Victim recognizes the role the psychosis played and also speaks of the community work he has done and asks that he get help but holds no ill will or anger towards him;

• Criminal record is not a related record and the assault entry is not a domestic origin.

[37] Aggravating factors I do consider:

• Criminal record albeit one that is largely unrelated. There is an Assault with a Weapon from 2016, but it is not domestic related;

• Severe injury to an animal is serious. The attack involved a weapon which caused significant injuries. Further the threats are severe and directed to the Victim and her children which is statutorily aggravating. The Accused was also in a position of trust of those children who were present when the threat was made;

• Position of trust over the dog;

• Community impact as crowd or community fundraising was needed to pay for the Vet bills for Miya;

• Breach of probation – The Accused was on probation which had conditions that he not consume alcohol or other intoxicating substances. The Accused is an addict and when he relapses, he poses a risk to himself and the community.

Conclusion

[38] There is a wide range of sentences which have been imposed for cases involving animal cruelty. In the case at bar, we have an additional consideration as these offences occurred while the Accused was delusional brought on by a drug induced psychosis. That being said however, the attack on Miya was brutal. The dog was left without concern for whether she needed medical attention or might die while the Accused and carried on with his day. Viewing these events taking into account the Accused's reduced moral blameworthiness due to drug-induced psychosis and bearing in mind the other mitigating as well as aggravating factors, I have considered, I find that the appropriate sentence for the Animal Cruelty charge will be one of six months, for the Charge of Threatening there will be a consecutive sentence of three months. There will be concurrent sentences of three months concurrent for the section 88 Possession of a Weapon charge and thirty days concurrent for the Breach of Probation. Each of the sentences will be followed by a term of Probation of two years. Given the accused pre-sentence custody however, which must be taken into account, a suspended sentence will be registered on each count. There will be a Weapons Prohibition under section 109 for Life, I will order that a sample of his blood be taken for the DNA Data bank on the Threatening charge which is a Primary designated offence when there is an indictable election. I will impose a Ban ordering that the Accused be prohibited from owning or residing with any animals pursuant to section 447 of the Criminal Code for a fifteen year period.

Released: June 27, 2018

Signed: Justice Heather Perkins-McVey