OSHAWA COURT FILE NO.: CR-19-15241
DATE: 20221216
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
KYLE WEBER
Appellant
Michael J. Gillen, for the Crown/Respondent
Richard Litkowski, for the Appellant
HEARD: June 3, 2022
REASONS FOR DECISION.
DE SA J.:
Overview
[1] The Appellant was tried on a charge of causing serious harm to an animal under s. 445(1)(a) of the Criminal Code. The information charged:
Kyle Victoria Weber on or about the 28th day of June in the year 2018 at the City of Oshawa in the Central East Region did, wilfully and without lawful excuse, kill, maim, wound or injure a dog, kept for a lawful purpose and the property of Ian Chesterton, contrary to Section 445, subsection (1), clause (a) of the Criminal Code of Canada.[^1]
[2] After trial, the Appellant was convicted of fatally injuring a small dachshund dog belonging to Ian Chesterton (“Chesterton”) on or about June 28, 2018. The Appellant was sentenced to nine months custody.
[3] The evidence demonstrated that the Appellant was the only person that would have had the opportunity to commit the offence at the time the event took place.
[4] While the evidence of identity is overwhelming, the Appellant submits that the trial judge erred by shifting the burden of proof. According to the Appellant, the trial judge’s reasons demonstrate he erred in his application of the principles from the Supreme Court of Canada decision in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, by effectively shifting the onus, and requiring the defence to prove facts (level of intoxication) to support the existence of a reasonable doubt.
[5] I disagree. The trial judge’s reasons demonstrate he considered the evidence of intoxication before him and was still satisfied beyond a reasonable doubt that the Appellant intentionally harmed the dog.
[6] In any event, in my view, s. 445(1)(a) is a general intent offence, and accordingly, intoxication short of automatism is not a defence to the charge.
[7] The appeal is dismissed. The reasons for my decision are outlined below.
Summary of Facts
[8] The Appellant began living at the address on June 1, 2018. Neither Chesterton nor his other roommate, Lynn, knew the Appellant before.
[9] Chesterton had a number of pets at the address: three miniature dachshunds and four birds (one blue and gold McCaw, one Umbrella Cockatoo, and two different Pionus). The only people with keys to the apartment were Chesterton, Lynn, the Appellant, and the building superintendent.
[10] On June 28, 2018, Chesterton drove Lynn to work at about 10:00 p.m. They stopped at Tim Horton’s to get coffee, then drove to Lynn’s work. After driving to Lynn’s work, they sat in the car and talked for a bit, then Lynn left and Chesterton drove back home. He estimated that on this occasion he was gone for a total of 20 to 30 minutes.
[11] When he arrived home the door to the apartment was locked. When he entered, he found his dog, Timmy, on the floor in a “pile of blood”. He did not see the other dogs. Timmy was not very responsive and he could not lift his head up.
[12] He had left the dogs in the kitchen/dining room area by themselves. They were not in their cages. He would only cage his dogs if he was going to be out for many hours.
[13] Chesterton ran upstairs to the Appellant’s bedroom to ask what had happened. The Appellant had his door shut. Chesterton banged on the door and then walked into the room. He saw the Appellant lying on his bed with a headset on. The Appellant said he did not hear anything, that he was sleeping, and then that he had heard the dogs barking.
[14] Chesterton ran back downstairs to deal with Timmy. Chesterton noticed blood on one of the birdcages. The birds were all locked in their cages at the time. He also noticed blood splatter on a dog toybox, on the bottom and side of the kitchen island, and on the cabinets.
[15] Chesterton found the other dogs hiding behind the couch. One of the other dogs, Yoshi, had a bit of blood on his chest fur.
[16] Chesterton gathered up Timmy and took him to the vet. His mother drove him and a next-door neighbour, Cheryl Mitchell (“Ms. Mitchell”), went with him. The vet worked on Timmy, but eventually told Chesterton that Timmy was not going to make it. They decided to put him to sleep as he was not going to survive.
[17] When Chesterton left to take Lynn to work that evening, the Appellant was in his room. No one else was in the house. There were no signs of a break in when he came back. Chesterton had a baby gate to keep the dogs in the kitchen and dining area. When he left to take Lynn to work, the gate was closed. When he returned the gate was also closed. After they got home from the vet, Chesterton’s mother found big pieces of teeth on the ground with a piece of the jawbone still connected.
[18] Chesterton did not initially report the incident to the police or to the Society for the Prevention of Cruelty to Animals (“SPCA”). He was told by a neighbour that he should. The neighbour helped him call the SPCA. This was either the day after or two days after the incident occurred.
[19] On the day of the incident, the Appellant was wearing a pair of red shorts with a white symbol on the left side. After the Appellant was arrested, Chesterton’s neighbour, Carmella, searched the Appellant’s room. She found the red shorts he was wearing that night shoved between the wall and the mattress. She showed them to Chesterton. The white patch was “saturated in blood” and there was a clump of fur on the rear part of the shorts.
Intoxication of Appellant
[20] Evidence at trial indicated that the Appellant was drunk on June 28. Chesterton smelled “booze” on him. He and Lynn had also found him sitting outside earlier in the evening and he could barely walk up the steps. The Appellant was staggering. This was at around 4:00 p.m. to 5:00 p.m. The Appellant said he could not get into the house and that he could not unlock the door. As a result, they helped him into the house.
[21] Ms. Mitchell testified that on June 28, she saw the Appellant earlier in the evening. He was very drunk. He was slurring his words, staggering, and trying to hug her. After they found Timmy, the Appellant kept repeating “I’m sorry, I’m sorry.” He repeated it about ten (10) times. When she asked him “what for?” he did not respond. She made the Appellant start to clean up the blood because he was otherwise just getting in the way.
[22] She did not see the Appellant get any blood on himself when he was cleaning.
Timmy’s Injuries
[23] Dr. Amber Morgan, testified as an expert in veterinarian sciences, emergency critical care to animals, and injury and trauma treatment of animals. She was the vet in the clinic the night Timmy was brought in. She conducted an external assessment of Timmy. Timmy’s upper jaw was broken and his jaw would not close together. His nasal bone was deviated, twisted, and on an angle. He showed signs of blood loss, mainly from the mouth, and shock. He had a ruptured eye. He had multiple fractures in his front limbs and significant bruising.
[24] To break the upper jaw and nasal bone requires a blunt force trauma. According to Dr. Morgan, a single application of force could not have caused all those injuries. The injuries could not have been caused by another dog. The injuries could not have been caused by an object falling on Timmy. If that had occurred, the bleeding would be mostly internal.
[25] In her opinion, if Timmy’s breed of dog was exposed to the force that caused all those injuries, the dog would likely scream and try to run away. She advised euthanasia in Timmy’s case because of the severity of the injuries. No x-rays were taken because they would not have been of any assistance in this case.
Reasons for Judgment
[26] At trial, both the defence and Crown operated on the premise that the offence in question required specific intent. The trial judge accepted this premise.
[27] The trial judge found that the dog received multiple incidents of traumatic injury and, based on that evidence, also rejected the defence’s submission that another dog or pet may have caused the injuries. The trial judge then concluded that the Appellant was the only person who, during the relevant time frame, had access to the dog.
[28] The trial judge concluded that the Appellant possessed the specific intent required by the offence. He explained:
I am satisfied beyond a reasonable doubt that the defendant intentionally inflicted significant injury to the complainant’s dog. I am satisfied having regard to the intentional infliction of multiple trauma incidents to the dog that the defendant has the requisite mens rea. Consequently, the defendant is found guilty.
I am satisfied beyond a reasonable doubt that the defendant possessed the requisite intent. No person could inflict multiple traumatic injury events on a small dog without recognizing that such injury was being caused.
There is no basis for me to conclude for example, that the defendant by accident stepped on the dog or fell on the dog. I recognize there is no evidence of that in this case. But just by way of example, given the evidence of the expert witness, such events seemingly are remote.
Furthermore, the expert opinion evidence focused on multiple traumatic injuried events is quite clear. This was not a singular event.
On all of the evidence at this trial, I am satisfied beyond a reasonable doubt that the defendant possessed the requisite specific mens rea.
[29] On the issue of intoxication, the trial judge commented:
There is no evidence of what the defendant consumed, when he consumed it, the quantities consumed or the drinking pattern on the relevant night; of the drinking patterns of the defendant overall or his drinking practices overall. I have no idea about what, if any, tolerance the defendant has in relation to alcohol generally. I have no evidence as to how any consumption of alcohol impacted the defendant on the day in question. I have no evidence from the defendant concerning impact of any alcohol consumption on his decision-making skills or his perceptions. On the record presented, I am aware that the defendant was able to walk, he was able to talk, he was able to engage in conversation with people, he participated in the clean up of the blood on the floor, I know that. I also know through his admitted statements that he says he was sleeping before he was confronted by the complainant upon his return from dropping off his roommate. At that time was the defendant still intoxicated from drinking prior to 5:00 p.m.? Is he still drunk? That’s when the complainant and his roommate found him on the front steps. Did he drink more? I do not know. Was he asleep? Is it true that he was asleep? That is what he told the complainant. I do not know. The bottom line is I have no expert opinion, toxicology evidence on point. I have no specific foundational evidence to rely on.
The Supreme Court of Canada in Villaroman did not promote plausible theories or other reasonable possibilities that lacked foundation either in the evidentiary record or without. I will not speculate that the defendant’s level of intoxication was at any particular level. I will not speculate that the defendant’s level of consumption impacted his mens rea. And I premise those conclusions on the evidentiary record at trial.
The evidentiary record at trial and I have to consider the absence of evidence as well, neither negatively impacts my conclusion in this regard. I can say that if I actually held an honest reasonable doubt about intent based on the defendant’s level of intoxication, I would acquit him, but I do not.
Furthermore, I am satisfied beyond a reasonable doubt, that the person who inflicted this harm on the complainant’s dog, was the defendant. [Emphasis added.]
Position of the Appellant
[30] The Appellant submits that the trial judge erred in his analysis of whether the Crown proved the necessary mental element of the offence beyond a reasonable doubt.
[31] There was a solid body of uncontroverted evidence to establish that the Appellant was significantly impaired by alcohol. Both Chesterton and Ms. Mitchell describe the Appellant as intoxicated to the point that he “could barely make it up the stairs”, that he was “staggering” and slurring his words, and that he could not even use his key to unlock the door.
[32] According to the Appellant, the trial judge erred by effectively requiring the Appellant to provide specific evidence from which the trial judge could find a reasonable doubt, specifically in respect of the evidence of intoxication. In doing so, he reversed the burden of proof: R. v. Villaroman, supra, at para. 35.
Analysis
The Defence of Intoxication
[33] In the case of a general intent offence, intoxication is not a defence unless the accused is able to establish on a balance of probabilities that the accused was in the state of extreme intoxication akin to automatism or insanity: R. v. Daviault, 1994 CanLII 61 (SCC), [1994] 3 S.C.R. 63.
[34] In contrast, in the context of specific intent offences, evidence of intoxication, where the evidence raises the defence as a live issue, is to be considered by the trier of fact along with all the relevant evidence to decide whether the Crown has proved beyond a reasonable doubt the existence of the requisite specific intent in fact.
[35] Even if the accused is proved to have the requisite capacity to form the specific intent, a reasonable doubt that the accused did in fact form the requisite intent will also require an acquittal: Halsbury’s Laws of Canada, “Criminal Offences and Defences”, (Toronto: LexisNexis Canada, 2020 Reissue), at HCR-509.
[36] In Daviault, supra, at p. 103, the Supreme Court had to consider the mens rea element required for sexual assault. In that decision, Justice Cory explained the limited availability of intoxication as a defence in the context of general intent offences:
In my view, the Charter could be complied with, in crimes requiring only a general intent, if the accused were permitted to establish that, at the time of the offence, he was in a state of extreme intoxication akin to automatism or insanity. Just as in a situation where it is sought to establish a state of insanity, the accused must bear the burden of establishing, on the balance of probabilities, that he was in that extreme state of intoxication. This will undoubtedly require the testimony of an expert. Obviously, it will be a rare situation where an accused is able to establish such an extreme degree of intoxication. Yet, permitting such a procedure would mean that a defence would remain open that, due to the extreme degree of intoxication, the minimal mental element required by a general intent offence had not been established. To permit this rare and limited defence in general intent offences is required so that the common law principles of intoxication can comply with the Charter.
[37] This was recently confirmed by the Supreme Court in R. v. Brown, 2022 SCC 18, 472 D.L.R. (4th) 459, at paras. 4-5:
… I specifically leave intact the common law rule that drunkenness, absent clear scientific evidence of automatism, is not a defence to general intent crimes, including crimes of violence such as sexual assault.
It thus bears emphasizing that Mr. Brown was not simply drunk or high. To be plain: it is the law in Canada that intoxication short of automatism is not a defence to the kind of violent crime at issue here. The outcome of the constitutional questions in these appeals has no impact on the rule that intoxication short of automatism is not a defence to violent crimes of general intent in this country. [Emphasis added.]
Classification of the Offence
[38] As evident from the above, the classification of an offence as one of general or specific intent, is a significant issue when it comes to considering the defence of intoxication: Daviault; see also R. v. Husband, 2022 ONSC 3365.
[39] The distinction between a general and specific intent offence was recently discussed by the Supreme Court of Canada in its decision in R. v. Tatton, 2015 SCC 33, [2015] 2 S.C.R. 574. Justice Moldaver summarizes the distinction as follows at paras. 35-39:
For general intent crimes, the mental element simply relates to the performance of an illegal act. Such crimes do not require an intent to bring about certain consequences that are external to the actus reus [citation omitted]. Assault is a classic example. The accused must intentionally apply force; however, there is no requirement that he intend to cause injury. Likewise, crimes of general intent do not require actual knowledge of certain circumstances or consequences, to the extent that such knowledge is the product of complex thought and reasoning processes. In each instance, the mental element is straightforward and requires little mental acuity.
In contrast, specific intent offences involve a heightened mental element. In Daviault, Sopinka J. limited his discussion of specific intent offences to crimes involving an ulterior purpose. For such crimes, the accused must not only intend to do the act that constitutes the actus reus, he must also act with an ulterior purpose in mind [citation omitted]. For example, assault with intent to resist arrest is an offence containing an ulterior purpose. The accused must not only commit the assault, he must also act with the ulterior purpose of resisting arrest. It is irrelevant whether he actually succeeds in resisting arrest; the offence simply requires that he act with that purpose in mind. [Emphasis added.]
[40] Justice Moldaver explains that general intent crimes involve such minimal mental acuity that intoxication short of automatism would not deprive the accused of the low level of intent required. Ulterior purposes are obviously easier to identify as specific intent offences, as the mens rea is not simply associated with the commission of the act itself. Offences that involve a measure of planning and deliberation will also obviously require a heightened mental element. However, if an examination of the mental element does not provide a clear answer, policy considerations can be used to help resolve the issue. He explained at para. 43:
As a general observation, and without setting out a general rule, alcohol habitually plays a role in crimes involving violent or unruly conduct [citation omitted]. It also tends to be prevalent in crimes involving damage to property. As such, it makes little sense from a policy perspective that it should provide a defence for crimes in which people or property are harmed or endangered: Daviault, at p. 123. Of course, there are well-established exceptions to this general proposition. Murder, for example, has long been considered a crime of specific intent for which the defence of intoxication is available. As Daviault explains, at p. 124, this is a function of the heightened thought and reasoning processes required, the gravity of the offence, the serious fixed punishment upon conviction, and the availability of the lesser included offence of manslaughter. It is therefore incorrect to state that intoxication may never be considered in crimes involving violence against people or damage to property. However, given the prevalence of alcohol in these crimes, there are likely to be strong policy reasons militating against an intoxication-based defence. [Emphasis added.]
Classification of s. 445(1)(a) of the Criminal Code and the Defence of Intoxication
[41] Section 445(1)(a) of the Criminal Code provides:
(1) Everyone commits an offence who, wilfully and without lawful excuse,
(a) kills, maims, wounds, poisons or injures dogs, birds or animals that are kept for a lawful purpose
[42] As evident from the specific wording of the provision, a very broad range of activity is captured by s. 445(1)(a). In the broadest sense, s. 445(1)(a) captures conduct that is directed at harming an animal that is kept for a lawful purpose. The harm caused must be wilful, not accidental.
[43] With respect to the mens rea of the offence, s. 429(1) provides:
429 (1) Every one who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part, wilfully to have caused the occurrence of the event.
[44] The question of whether intoxication short of automatism will afford a defence to a charge under s. 445(1)(a) has been considered in a number of cases.
[45] In R. v. Dominic, 2009 BCPC 145, the court found that a charge under s. 445 is a general intent offence, and that intoxication, even being heavily intoxicated, will not afford a defence. In that case the trial judge accepted that the accused was “heavily intoxicated” but only intoxication amounting to automatism would afford a defence to this charge. In doing so, the trial judge relied on the Ontario Court of Appeal in R. v. Schmidtke (1985), 1985 CanLII 3621 (ON CA), 19 C.C.C. (3d) 390 (Ont. C.A.).
[46] In R. v. Martens (1986), 1986 CanLII 5061 (MB QB), 39 Man. R. (2d) 249 (Q.B.), at paras. 48-56, the court held that a charge of wilfully injuring cattle was a crime of general intent and the defence of voluntary intoxication was not available.
[47] In R. v. Nault, 2017 ABPC 129, in dealing specifically with s. 445.1(1)(a),[^2] the court relied on Tatton in finding that where there was evidence that the accused was aware that there were two dogs in the residence when he set the fire, the mens rea for the offence was made out. At para. 218, the court explained:
Intoxication by alcohol and/or drugs is not a defence to these charges. Causing unnecessary suffering to animals is a general intent offence for which intoxication short of automatism is not available as a defence. The actus reus is causing unnecessary suffering to an animal. The mental element requires unlawful and wilful performance of the illegal act. I see no reason why the principles enunciated by the SCC in Tatton, ought not to apply to this offence as well.[^3]
[48] In Schmidtke the Ontario Court of Appeal considered whether the offence of mischief was a crime of specific intent or general intent. Much like the offence here, the offence of mischief in s. 430(a) provides that one commits mischief who “wilfully” destroys or damages property or otherwise interferes with the lawful use of property. Notably, s. 429(1) also applies to the offence of mischief and other property related offences. In commenting on the classification of the offence of mischief, the court explained at p. 394:
… On the approach to the designation of specific and general intent crimes prescribed by the Supreme Court in George, supra, and affirmed in Leary, supra, it appears to me that the requisite mental element for mischief requires proof of no more than an intentional or reckless causing of the actus reus. I would not hold the requisite mental element to include both an intention with respect to the actus reus and an intention with respect to the achievement of some ulterior purpose beyond that achieved by the act itself. In my opinion, the offence of mischief may be established by a general intent to destroy or damage property and, like assault, does not require proof of a specific intent.
This conclusion accords with the policy considerations which may appropriately be invoked in determining whether particular crimes should be designated as requiring, or not requiring, specific intent. As Lord Salmon observed in Majewski, supra, at p. 483:
… I accept that there is a degree of illogicality in the rule that intoxication may excuse or expunge one type of intention and not another. This illogicality is, however, acceptable to me because the benevolent part of the rule removes undue harshness without imperilling safety and the stricter part of the rule works without imperilling justice.
It would be anomalous in the extreme to find that while the respondent’s drunkenness would afford him no defence had he assaulted someone, it affords him a complete defence when he destroys or damages property. In my opinion, where an accused’s inability to have the knowledge or appreciate the consequences of his conduct is brought about by his voluntary consumption of liquor or drugs his self-induced drunkenness is irrelevant to a charge of mischief. [Emphasis added.]
[49] In response to these cases, the Appellant relies on the cases of R. v. Ludwig, 2018 ONCA 885 and R. v. MacKenzie, 2017 ONCA 638 in support of his position that s. 445(1)(a) is a specific intent offence.
[50] In R. v. Ludwig, police responded to a complaint from one of the appellant’s neighbours. The police arrived at the appellant’s unit in a townhouse complex and discovered a fire there. Five minutes after the fire department was called, the appellant walked out the front door. The fire department arrived and discovered an unconscious dog in the unit, which was later revived. The dog was rendered unconscious from the smoke from the fire.
[51] The appellant was charged in connection with the fire, including for wilfully and without lawful cause “endangering” his dog contrary to s. 445(1)(a). The parties treated the charge as “injuring” a dog.
[52] At trial, the appellant was found guilty of this charge. The judge found that the dog did suffer an injury and that injury was a foreseeable result of the actions caused by the defendant such that the offence had been proven beyond a reasonable doubt.
[53] On appeal, the appellant took the position that the judge did not have sufficient evidence to prove that the dog’s injury was foreseeable, as it required proof that the appellant knew that the dog was in the house when he started the fire. Neither the parties nor the trial judge addressed that issue explicitly. The appellant also argued that his extreme mental distress and intoxication supported the contention that he never turned his mind to the presence of the dog.
[54] The Court of Appeal found that it could not be satisfied that the trial judge addressed the issue or would have concluded that the evidence established the requisite knowledge. However, since there was evidence that the trial judge could have reasonably found that the appellant knew the dog was in the house, a new trial was ordered.
[55] In addressing the mens rea of the offence, the Court of Appeal confirmed that s. 429(1) of the Criminal Code applied to charges under s. 445 of the Code.
[56] In the context of the particular facts, the court held that the Crown had to prove the following to make out the offence:
the appellant set the fire that generated the thick black smoke [“doing an act”];
the appellant’s act caused the dog’s injury [“the occurrence of an event”];
the appellant knew that it was probable that by setting the fire he would cause injury to the dog; and
the appellant was reckless as to whether the dog would be injured.
[57] In R. v. MacKenzie, supra, following a trial in the Ontario Court of Justice, the appellant was convicted of two offences: i) wilfully killing a dog, the property of a friend, without lawful excuse – s. 445(1)(a); and ii) wilfully causing unnecessary pain and suffering to a dog by strangulation and suffocation with tape and a chain – s. 445.1(1)(a).
[58] The dog was found dead in the appellant’s yard. The dog was tethered to a tree; he had a choke chain around his neck and electrical tape wrapped around his muzzle.
[59] At trial, the veterinarian who examined the dog testified that the likely cause of death was strangulation by the choke chain. Although she testified that taping a dog’s muzzle would cause stress, she also acknowledged that different dogs would react differently to having tape wrapped around their muzzle. Further, the extent of a dog’s reaction could depend on how tightly its muzzle was wrapped.
[60] The appellant did not testify at trial. However, in various out-of-court statements that were introduced at trial, the appellant acknowledged that he had wrapped the electrical tape around the dog’s muzzle and left him tied to the tree on a choke chain.
[61] The main issues at trial were causation and mens rea.
[62] The trial judge accepted the veterinarian’s opinion that the dog was strangled on the choke chain and also concluded that the tape was a contributing cause of the dog’s death.
[63] The Court of Appeal agreed that leaving an agitated dog unattended for two hours while the dog was in a choke chain with its muzzle taped shut demonstrated a failure to “exercise reasonable care or supervision of an animal”; that the appellant’s conduct in that regard caused the dog pain, suffering, and injury and that, given the absence of evidence to the contrary, the appellant was properly deemed to have wilfully caused unnecessary pain, suffering and injury to the dog.
[64] With respect to the charge of wilfully killing a dog, however, the court found that the offence had not been made out. The court explained at paras. 44-45:
As for the trial judge’s finding that the appellant knew that leaving the dog tethered to a tree while in a choke chain with tape around his muzzle would probably lead to his death, I agree with the appellant that the veterinarian’s evidence undermines that finding. As expressed by the veterinarian that is something that could happen if a dog panicked enough. She did not express that event as a likelihood. In these circumstances, it would be unreasonable to infer that the appellant knew that the dog would likely strangle himself to death if left unattended with tape around his muzzle while tethered to a tree wearing a choke chain.
Based on the foregoing reasons, I would grant leave to appeal, allow the appeal in part, set aside the appellant’s conviction for wilfully killing the dog and enter an acquittal on that charge. I would dismiss the balance of the appeal. [Emphasis added.]
[65] On the basis of Ludwig and MacKenzie, the Appellant argues that the offence falls into the category of specific intent offences referred to in Tatton, where the mental element is linked to the subjective foresight of the consequences of one’s actions. The court has to consider whether the accused knew that his actions would probably cause injury to the animal. For general intent crimes, the mental element simply relates to the performance of an illegal act. Such crimes do not require an intent to bring about certain consequences that are external to the actus reus.
[66] A review of the jurisprudence demonstrates the offence of s. 445(1)(a) is not an easy one to classify. In most cases, the offence is no different than any other type of assaultive conduct where the foreseeability of the harm is clear. The mental element is straightforward and requires little mental acuity as on the facts in this case.
[67] However, given the broad range of conduct captured by the provision, in some cases, the harm will involve a greater degree of foresight. The facts in MacKenzie provide a good example.
[68] In MacKenzie, the appellant’s act of muzzling the dog with tape was the first in a chain of occurrences leading to the dog’s death by the choke chain. The appellant’s act was remote to the occurrence that actually caused the dog’s death. The foreseeability of the dog’s death was hardly obvious.[^4]
[69] That said, in most cases, complex reasoning will not be involved, and intoxication short of automatism would rarely prevent an accused from seeing the risks of causing harm to an animal: R. v. Tatton, supra. at paras 49-52.
[70] In my view, to treat it as a specific intent offence would also be at odds with the approach to various other similar offences that have been characterized as general intent offences: See, R. v. Schmidtke, supra and R. v. Tatton, supra. It would seem anomalous to hold that killing a person where the killer was intoxicated short of automatism would not absolve the killer of a manslaughter conviction, but that doing the same thing to a dog would.
[71] Finally, there are strong policy reasons militating against an intoxication-based defence for most of the conduct caught by s. 445(1)(a). It would erode the policy underlying the offence if an accused could rely on self-induced intoxication as a defence: R. v. Tatton, supra, at para. 52.
[72] In my view, properly classified, s. 445(1)(a) is a general intent offence, meaning that intoxication short of automatism is not a defence and should not be considered.
[73] Even if I am incorrect in this regard, the distinction makes little difference in this case because the force used on the small dog was so extreme that the inference that the accused foresaw the likelihood of harm was overwhelming even in the face of the intoxication evidence.
[74] Even treating the offence as one of specific intent (as the trial judge did here), I am satisfied that the trial judge gave appropriate consideration to the evidence of intoxication. Having considered the intoxication evidence, the trial judge’s reasons make clear he was satisfied that the accused intentionally inflicted the harm on the dog. As he explained:
I am satisfied beyond a reasonable doubt that the defendant intentionally inflicted significant injury to the complainant’s dog. I am satisfied having regard to the intentional infliction of multiple trauma incidents to the dog that the defendant has the requisite mens rea. Consequently, the defendant is found guilty.
The evidentiary record at trial and I have to consider the absence of evidence as well, neither negatively impacts my conclusion in this regard. I can say that if I actually held an honest reasonable doubt about intent based on the defendant’s level of intoxication, I would acquit him, but I do not. [Emphasis added.]
[75] While some of the trial judge’s remarks may be unfortunate, when read in context, I am satisfied that the trial judge did not reverse the burden of proof. His comments simply reflect that he was not going to speculate about the precise level of the Appellant’s intoxication at the time of the offence. In this regard, I adopt the comments of the Supreme Court in R. v. Villaroman, supra, at paras. 66 and 71:
The judge did not ignore hypothetical alternative explanations advanced by the respondent’s counsel. He found that they were speculative, noting that the Crown does not have the burden “of negativing every conjecture to which circumstantial evidence might give rise and which might be consistent with the innocence of the accused”
… [I]t is fundamentally for the trier of fact to draw the line in each case that separates reasonable doubt from speculation. The trier of fact’s assessment can be set aside only where it is unreasonable. While the Crown’s case was not overwhelming, my view is that it was reasonable for the judge to conclude that the evidence as a whole excluded all reasonable alternatives to guilt.
[76] The appeal is dismissed.
Justice C.F. de Sa
Released: December 16, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
KYLE WEBER
Appellant
REASONS FOR DECISION
Justice C.F. de Sa
Released: December 16, 2022
[^1]: The Appeal Book only contains a copy of the original information which was replaced prior to the commencement of trial.
[^2]: Section 445.1(1)(a) appears very similar to the offence in 445(1)(a). Section 445(1)(a) deals with injuring or endangering animals kept for a lawful purpose, whereas s. 445.1 deals with cruelty to animals.
[^3]: It should be noted that this decision was overturned on appeal on an unrelated evidentiary issue by the Alberta Court of Appeal in R v. Nault, 2019 ABCA 37. The lower court’s finding that s. 445.1(1)(a) was a general intent offence, however, was not at issue on appeal.
[^4]: Such examples demonstrate the limits to classifying offences either as offences of general or specific intent. Broad classifications do not permit for exceptions even where the facts may warrant it. However, there is a voluntary assumption of risk associated with self-induced intoxication that brings about the necessary moral culpability associated with criminal offences. A diminished level of responsibility can always be addressed in sentencing.