March 2013
Animal Law Section
Case Law in Review
By Maria Golarz*
Recent Ontario cases:
Eng v. Toronto (City), 2012 ONSC 6818 – municipal law – declaration that city’s shark fin Bylaw lacks proper municipal purpose, is ultra vires and without any force and effect.
R. v. Rodgers, 2012 ONCJ 808 – criminal law – sentencing for puppy abuse leading to death – 8
mo. jail; 10-yr. prohibition on owning, custody or control, or residing with an animal or bird; 2
yrs. probation; 80 hrs. community service.
Board of Management of the Toronto Zoo (Re), 2012 CanLII 69029 (ON IPC) - access to
information – appeal – later searches by zoo in response to information requests about elephants
were sufficient, although staff failed to preserve records until the request or any appeals were
completed.
R. v. Munroe, 2012 ONSC 4768 – criminal law – appeal of convictions on unlawfully killing
dog, unlawfully wounding dog, wilfully causing unnecessary suffering; sentence reduced from
12 to 6 mo. jail.
Podolsky v. Cadillac Fairview Corp. Ltd., et al, 2013 O.C.J. – regulatory law – private
prosecution related to bird collisions with highly-reflective buildings; defendants acquitted for
due diligence; however, building owners and managers with reflective windows that kill or injure
birds must take action.
Recent cases from other jurisdictions:
R. v. Gauchier, 2013 ABQB 30 – wildlife law – Aboriginal hunters unsuccessfully appeal
conviction of illegally hunting in corridor wildlife sanctuaries; creation of wildlife sanctuary can
mean "occupy"ed Crown land.
R. v. Harmsworth, 2012 ABPC 346 – municipal law – destruction order not made despite
dangerous dog declaration; however, muzzling and training required.
Custodio v. Pucci, 2012 BCPC 445 – family law – custody: "The court has jurisdiction under s.
3(1)(b) of the Act to order the return of a dog as a dog is considered a piece of property."
R. v. Bourque, 2012 BCPC 452 – criminal law – sentencing for wilfully causing unnecessary
pain and suffering or injury; wilfully and without lawful excuse killing dog and cat; 7 mo. jail
already served; 3 yrs. probation.
2
R. v. Fawcett, 2012 BCPC 421 – criminal law – sentencing for wilfully causing unnecessary pain
or suffering to nine sled dogs; jail not appropriate, fine of $1,500 imposed.
R. v. Tremblay, 2012 BCPC 410 – criminal law – sentencing for wounding an animal – 6 mo.
jail, 30 mo. probation: "A moral philosopher might conclude that an assault on an animal is no
less worthy of denunciation, and should not attract a lesser punishment, than a similar assault on
a human being. However, Parliament has clearly espoused a contrary view, and that is a matter
for Parliament, not for me."
Mainstream Canada v. Staniford, 2012 BCSC 1433 – civil litigation – “Salmon Farming Kills”
campaign found to be defamatory; however, defence of fair comment and honest belief succeeds.
R. v. Hughes, 2012 ABPC 250 – municipal law – Urban hen owner unsuccessfully brings
Charter challenge on Calgary By-law prohibiting keeping livestock, arguing urban hen owners
should be held to same standard as domestic animal guardians.
R. v. White, 2012 CanLII 43292 (NL PC) – criminal law – sentencing for threatening, killing and
injuring cats; 6 mo. jail, 12 mo. probation: “In R. v. Clarke…I noted that the “manner in which
we treat animals may be considered as a reflection of our own humanity, or lack thereof. It has
been suggested that intentional cruelty to animals is an indicator of a ‘potential for increasing
violence and dangerousness’ against people (see the Federal Department of Justice's 1998,
Consultation Paper, Crimes Against Animals).” In R. v. Brown…it was noted that protection of
animals “is part of our criminal law because a person's treatment of animals, like the treatment of
children, the infirm or other vulnerable parties, is viewed as a barometer of that person's
treatment of people. As with all other criminal offences, harming animals amounts to harming
everyone.”
People for the Ethical Treatment of Animals, Inc. v. North Carolina Wildlife Resources
Commission, 12 WRC 07077 – administrative law – PETA successfully challenges issuance of a
special permit for temporary possession and release of live-caught opposum, placed in a clear
box and suspended above a stage until lowered at midnight on New Year's Eve: "Hunters must
afford wild animals the same right Patrick Henry yearned for: "Give me liberty, or give me
death!""
*Maria Golarz is a lawyer practicing in Toronto