Part XI of the Criminal Code of Canada addresses cruelty against animals. Animals in Canada and many other countries are treated exclusively as property by the law. The primary objective of sections 444 to 447 is to place certain animals in a specific property category alongside other types of property. Section 445.1(1)(a) reads:
445.1 (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;
Everyone who commits an offence under 445.1(1)(a) is guilty of;
(a) an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) an offence punishable on summary conviction and liable to a fine not exceeding ten thousand dollars or to imprisonment for a term of not more than eighteen months or to both.
There are three primary components to the offence set out in section 445.1:
- The accused must cause, or permit to be caused, pain, suffering or injury to an animal or bird.
- The pain, suffering or injury must be committed wilfully; and
- The pain, suffering or injury must be unnecessary in the circumstances
1. Causes or Permits Pain, Suffering or Injury
As a precondition, it must be shown that some pain, injury or suffering was caused. The prosecution has the easy burden of proving that the animal suffered a minimal level of physical discomfort. Expert evidence can be presented to determine if the animal actually suffered. Judges are also permitted to draw inferences from the presented facts and conditions of the case.
Intent, or mens rea is more difficult to prove. The pain, suffering or injury must be caused wilfully — or, in the case of an owner, permitted willfully. There is some controversy over the definition of “wilfully”. In Higgins, the Court ruled that the accused must act in the knowledge that the act undertaken will probably cause pain, suffering or injury, and either intend or be reckless as to whether pain, suffering or injury occurs. Section 445.1 does not require attention to a specific type of injury, but there must be some awareness that injury will probably materialize if the action is undertaken. 1
3. Unnecessary Pain, Suffering or Injury
The prosecution must establish that the effect upon the animal was unnecessary in the circumstances. This element is clearly part of the actus reus. The accused’s belief of the necessity of the action, while relevant as evidence, is not determinative. In Galloro, the accused cut off a portion of a dog’s ear to “alleviate” seizures from which the animal was suffering. She honestly believed the act was necessary. She was found guilty because it was clear from the evidence that the procedure was medically unsound. 2
In some cases, the question of necessity is easily answered:
Smashing a cat with a hockey stick for fun cannot be considered “necessary” under any circumstances.3 Strangling a dog because he growled is equally unjustifiable.4
Other cases are more challenging. In Menard, Lamer J., then member of the Québec Court of Appeal, defined “unnecessary” in the following manner:
It is sometimes necessary to make an animal suffer for its own good or again to save a human life. Certain experiments, alas, inevitably very painful for the animal, prove necessary to discover or test remedies which will save a great number of human lives. [Section 446] does not prohibit these incidents, but at the same times condemns the person who, for example, will leave a dog or a horse without water and without food for a few days … in order to avoid the costs of a temporary board and lodging, notwithstanding that these animals would suffer much less than certain animals used as guinea pigs. Everything is therefore according to the circumstances, the quantification of the suffering being only one of the factors in the appreciation of what is, in the final analysis, necessary.5
He continued by emphasizing that necessity had to take into account the relationship between humans and animals:
“Without necessity” does not mean that man, when a thing is susceptible of causing pain to an animal, must abstain unless it be necessary, but means that man in the pursuit of his purposes as a superior being, in the pursuit of his well-being, is obliged not to inflict on animals pain, suffering or injury which is not inevitable taking into account the purpose sought and the circumstances of the particular case. In effect, even if it not be necessary for man to eat meat and if he could abstain from doing so, as many in fact do, it is the privilege of man to eat it.6
The legal definition of necessity does not require animal owners to avoid suffering if less harmful measures would impose additional cost, and if the harm (i.e. bullet in the head) is a common practice used in the industry. The test seems to be slanted quite severely against finding cruelty in almost any situation. Economic need, the desire for entertainment, for sports, for meat, for cosmetics, for fur, are accepted justifications. Consequently, the “unnecessary” test almost invariably tilts in favour of the accused to the detriment of the battered animals, except in extreme malicious and sadistic circumstances of animal abuse. If a stricter approach were taken, and these industry-accepted acts of brutality were no longer regarded as legitimate by the courts, numerous socially accepted or tolerated activities such as factory farming would constitute a criminal offence. Many industries would have to drastically change their business and industry practices.
In animal cruelty cases, the courts have systematically chosen to make business decisions rather than judicial decisions. The results are morally and legally wrong. Perhaps, we should delegate the responsibility of handing verdicts to juries. Juries, pooled from members of society with moral turpitude might be more reasonable in balancing what is ethically acceptable against heinous and common industry practices.
- , 144 Nfld. & P.E.I.R. 295 (Nfld. S.C.).
-  O.J. No. 2871 (C.J.).
- R. v. D. L,  A.J. No. 539, 242 A.R. 357 (Alta. Prov. Ct.).
- Greeley,  N.J. No. 207, 203 Nfld. & P.E.I.R. 10 (Nfld. Prov. Ct.).
-  J.Q. no 187, 43 C.C.C. (2d) 458 (Que. C.A.).
- Ibid. at 465.