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  • L. Campbell (law student)

Animal Cruelty - seeking justice from the law for all sentient beings

It has been over a month since it was reported that the Winnipeg Police in conjunction with Winnipeg Animal Services seized 15 malnourished and unkempt dogs from Winnipeg’s West End. As a staunch animal lover who is proud to have her own dog-ter (dog daughter), this case hit close to home and incited me to look at the Criminal Code provisions governing animal cruelty which is governed under s 445 of the Criminal Code.


(1) Every one commits an offence who(a) wilfully causes or, being the owner, wilfully permits to be caused unnecessary pain, suffering or injury to an animal or a bird and are kept for a lawful purpose

Although s 445.1(1) is leaps and bounds from the ruling of Ebers v MacEachern where Justice Arsenault held that “If an animal belongs to the class of tame animals, ... he is then clearly a subject of absolute property”, I still believe that Canada has been slow to adapt to changing social views that animals are more than property… they are family, the means of emotional support and for some people, their livelihood.

“Wilfully Causes”: Subjective or Objective?

Under s 429 of the Criminal Code, the term “wilfully causes” found in s 445.1(1)(a) is defined as

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.

Historically, animals have not been afforded proper protection under s 429 because the phrase wilfully causes has been easy to manoeuvre around. This was the case in R v Heynan where the accused escaped criminal charges on the grounds that he didn’t wilfully starve three horses to death (another 21 horses were severely emaciated) because he was unaware that he couldn’t leave his horses without food over the winter and therefore lacked the requisite mens rea for a conviction under s 445.1(1)(a). In the ruling, Justice Preston considered subjective mens rea to be of great importance. Where most reasonable people would know that leaving their horses without food for the winter months would result in their starvation and subsequent deaths, Justice Preston failed to consider this; instead preferring the subjective test which I believe set the mens rea standard for the offence under s. 445.1(1)(a) too high.

“Wilfully Causes”: An Objective Test

Fortunately, the precedent set by R v Heynan in regard to the interpretation of “wilfully causes” has not gained much traction in the Courts (to my knowledge it hasn’t been followed in any other case). Recently, justices across Canada have indicated a preference of applying a more objective test in determining whether the accused has the requisite mens rea for an offence under s 445.1(1)(a). In R v Gerling, the accused was convicted for the mistreatment of 14 dogs under s 445.1(1). In the ruling, Justice Chiasson held that the determination of wilful blindness is an objective test and not a subjective test (at para 21). This rule was also applied in R v Adams where Justice Shriar found the accused guilty because of the objective condition of the animals (overlong toenails, dirty kennels, lack of nourishment, etc.) which the accused wilfully permitted or recklessly failed to see.

The Implications of “Kept For a Lawful Purpose”

While the term “wilfully causes” has been given a slightly fairer interpretation by the Court, I think the real issue with s 445.1(1)(a) is the stipulation that the animal must be kept for a lawful purpose in order for a person to be convicted. In R v Robinson, Justice Donegan restricted what constitutes keeping an animal for a lawful purpose under the Code. In his interpretation of s 445.1(1), Justice Donegan held that only people who wilfully cause pain, suffering or injury to animals that are essentially domesticated can be charged. This is truly concerning because there are a whole class of animals that are effectively not considered- homeless and wild animals.

This is especially pertinent in Winnipeg where we have a high feral cat population and northern Manitoba where the wild/stray dog populations are out of control. In 2016, CBC released an article stating that thousands of dogs were found slaughtered in Northern Manitoba where hundreds upon thousands of dogs run wild. In the article, CBC shed light on the cruel culling of dogs in some northern communities. In some communities, a $25 per tail reward is offered for any dog culled. While I understand that from an ecological perspective, the population needs to be controlled, I believe the mandate that animals “must be kept for a lawful purpose” has resulted in the undervaluing of dogs that are stray or wild. Take for example the case of Polo, an eight month old stray pup who was thrown into a fire pit and suffered burns all over his body.

While I fully understand that dogs like Polo aren’t domesticated or “lawfully kept”, I find it alarming that under s 445.1 this brazen culling which may incite cruelty is allowed without criminal sanctions.

Proceeding Summarily- Not Enough Punishment for Perpetrators of Animal Cruelty!

In my view, criminal proceedings against perpetrators of animal cruelty should be as (or nearly as) severe as against those who act violently towards other humans. Unfortunately, the Courts are wont to proceed summarily (rather than by indictment) against most people convicted under s 445.1(1)(a). Case in point in R v Randell, the accused who shot and killed his dog got off with a mere $1,000 fine. Similarly, in R v Fowlie, the accused was also fined $1,000 in addition to 90 days imprisonment for tying their horse to their truck, accelerating and dragging the poor creature until it could no longer keep up and keeled over.

The issue of lenient punishments handed out to perpetrators of animal cruelty is not only a legal issue, but an issue that transcends all boundaries and affects everyone. In my view, animals are the epitome of innocent. You just have to look into the depths of their eyes to know that they are thinking and feeling sentient beings. Just like some humans, many animals face harsh and deplorable conditions and act violently in stress-inducing situations; yet to rob these creatures of the necessities of life for extended periods of time, to maim them and beat them is no better than to do so to a fellow human being- and that’s a criminal offence. While I understand that my opinion is extreme, we cohabit this land with animals, many of which we derive benefits from, and I honestly believe that for all of these reasons we owe animals some degree of protection from violence and unnecessary cruelty.



Criminal Code, RSC 1985, c C-46.


Ebers v MacEachern, 1932 3 DLR 415, 4 MPR 333.

R v Fowlie, NBJ No 539, 41 WCB (2d) 257.

R v Gerling, 2016 BCCA 72.

R v Heynan, 1992 AJ No 1181, 18 WCB (2d) 521.

R v Payne, 2018 CarswellNfld 292, 149 WCB (2d) 549.

R v Randell, 1989 AJ No 260, 7 WCB (2d) 163.

R v Robinson, 2014 BCSC 1463.

Secondary Sources:

Erin Brohman “Thousands of dogs frozen, slaughtered on Manitoba First Nations, rescuer says”, CBC (18 January 2016), online: <> [].

Arin Greenwood, “Dog, cruelly thrown into fire pit still wags his tail: ‘He’s a happy guy’”, Today, (18 May 2017), online: <> [].

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