Court of Appeal Decision of the Week

Proving Animal Cruelty

Case: R v Sanaee, 2016 ABCA 289 (CanLII)

Keywords: Dog “Training Exercise”; S. 445.1(i)(a) of the Criminal Code; Cruelty to Animals; Colour of Right Defence

Synopsis:

The Appellant, Mr. Ali Sanaee is owner/operator of “b.a.r.k”, a day boarding facility or daycare centre for dogs. He also provides “dog training” to assist with “behavioural issues”. According to witness testimony, the Appellant – on at least two occasions – uses a cattle prod as a means to “train” the dogs.

First incident: as part of a training exercise involving a large dog displaying food aggression towards other animals, the Appellant puts dog food on the floor and then applies an activated cattle prod whenever aggression is displayed. The dog yelps, and eventually runs to the bathroom; stays for 10 minutes with his tail between his legs.

Second incident: while leading a group of people on a community walk with their dogs through a park, the Appellant is seen using the cattle prod multiple times on a pitbull. Witnesses testify the pitbull is not displaying signs of violence or aggressive behaviour when the cattle prod is applied. Once again, the animal yelps, cringes, and appears to be in a lot of pain.

At trial, the Appellant receives two convictions for causing unnecessary pain, suffering or injury to an animal, contrary to s. 445.1(i)(a) of the Criminal Code. The Trial Judge also imposes a sentence of six months on each count, to be served concurrently; prohibits the Appellant from owning, possessing, or controlling any pets and residing in any residence that has pets for 5 years.

The Appellant raises the following grounds of appeal:

  1. the Trial Judge erred by relying upon expert opinion evidence which was outside the scope of the purported expert’s expertise; and
  2. also erred by not considering whether the appellant acted with colour of right.

The Court of Appeal dismisses the appeal; affirms both convictions.

Importance:

The Trial Judge expressly stated she did not require any expert evidence to find a cattle prod should not have been used on a dog. Citing R. v. Graat, [1982] 2 SCR 819 at p. 835, the Court of Appeal stated a non-expert witness is entitled to give opinions arising from “compendious facts, such as bodily plight or condition and emotional state”. Furthermore, this principle applies to the condition of both persons and animals. (See para. 15).

Contrary to the submission of the Appellant, the Court of Appeal found the Trial Judge was entitled to accept witness evidence (including from those not trained as veterinarians); it was “…unreasonable to suggest that a device that is designed to deliver a meaningful shock to an animal many times larger than the dogs in question would not cause unnecessary pain or suffering…” (See para. 16).

With respect to the Appellant’s second ground, the Court of Appeal stated the problem with considering and/or applying s. 429(2) to the present situation was that the Appellant “…had testified at trial to the effect that he did not use the activated cattle prod…”(See para. 18) [Emphasis in original].

Specifically, the Appellant had testified he did not even own a cattle prod at the time. The Court of Appeal found this ground had no “air of reality” given the Appellant’s testimony he never used the cattle prod on either dog.

For the Court of Appeal, the Appellant’s belief, on appeal, that he was “…entitled, in law, to inflict unnecessary pain in some circumstances does not create a ‘colour of right’ to do so. This is a mistake of law”. (See para. 23). The Court further emphasized the answer does not change in circumstances where a dog owner consents to the use of the cattle prod – a dog owner cannot consent on behalf of the dog to the infliction of unnecessary pain.

Counsel for the Respondent: Jason Russell (Dept. of Justice and Solicitor General (AB), Edmonton)

Counsel for the Appellant: George Lebessis (Moreau & Company, Edmonton)

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Posted: Wednesday, October 05, 2016