Participation of Third Parties
A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.
For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 445, 445.1 and 446), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether “any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement”. Failing to take reasonable steps at guilty plea requires the prosecutor to “as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea” (s. 606(4.3)).
Under s. 738, a judge must inquire from the Crown before sentencing whether “reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages”.
Under s. 722(2), the judge must inquire “[a]s soon as feasible” before sentencing with the Crown “if reasonable steps have been taken to provide the victim with an opportunity to prepare” a victim impact statement. This will include any person “who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss” as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.
Interpretation of the Offence
It has been recognized that intentional cruelty to animals is an indicator of a “potential for increasing violence and dangerousness” against people.[1]
Parliament amended s. 445(1) with An Act to amend the Criminal Code (cruelty to animals), SC 2008 c 12 increasing the maximum penalties. This has been interpreted as signaling that the previous penalties were “wholly inadequate” and that penalties in general should be increased.”[2]
Where there is no evidence to the contrary, the requirement of willful causation of harm to an animal or bird under s. 445.1(1)(a) must be on an objective standard.[3]
Where there is evidence to the contrary, the Crown must prove that s. 429 applies. This requires subjective proof that the act or omission would “probably cause the occurrence” and the accused was reckless to the outcome.[4]
The necessity of the pain takes into account “all the circumstances of the particular case”, including the purpose of the pain, the “social priorities”, the means available, and reasonable costs.[5] The main concern is whether the pain was “reasonably avoided”.[6]
The person who “kept” the animal must exercise a degree of control over the animal.[7]
The defence afforded in s. 429 applies to s. 445.1(1)(a) and 446(1)(b).[1]
Draft Form of Charges
| Pre-ambles | ||
|---|---|---|
| “THAT [accused full name] stands charged that, between the |
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| “THAT [accused full name] stands charged that, on or about the |
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| “AND FURTHER at the same time and place aforesaid, he [or she]…” | ||
| Code Section | Subject of Offence | Draft Wording |
| “…, contrary to section XX of the Criminal Code. |
Top Signs Your Dog Is Poisoned | Poisoning Symptoms In Dogs
Offences relating to animal cruelty are found in Part XI of the Criminal Code relating to “Wilful and Forbidden Acts in Respect of Certain Property”.
There are four types of offences against animals generally. There are offences for killing and harming animals (445), torturing animals (445.1), and neglecting animals (446). They are all found in Part XI of the Criminal Code relating to “Wilful and Forbidden Acts in Respect of Certain Property”.
Offences under s. 445 [killing and harming animals], 445.01 [killing or injuring service animals], 445.1 [causing unnecessary suffering] and 446 [causing damage or injury] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.
When charged under s. 445 [killing and harming animals], 445.1 [causing unnecessary suffering] and 446 [causing damage or injury] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
A peace officer who charges a person under s. 445 [killing and harming animals], 445.1 [causing unnecessary suffering] and 446 [causing damage or injury] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of “any information that could identify the victim or witness” under s. 486.5(1) where it is “necessary” for the “proper administration of justice”. Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.