IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

R. v. Hughes,

 

2008 BCSC 676

Date: 20080314
Docket: 23801-1
Registry: Cranbrook

Between:

Regina

Appellant

And:

John Ronald Hughes

Respondent

Before: The Honourable Mr. Justice Cole

Oral Reasons for Judgment

March 14, 2008

Counsel for Appellant:

L. Doerksen

Counsel for Respondent:

R. Buddenhagen

Place of Trial/Hearing:

Cranbrook, B.C.

 

[1]                THE COURT:  This is an appeal from the decision of a Provincial Court judge who found the respondent not guilty on a charge under s. 446(1)(a) of the Criminal Code, which states:

446.(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;

[2]                On February 14, 2005, Sara Kons was the owner of two cats.  She was in a relationship with the respondent, who was at her residence on the evening in question.  She had gone to bed when she was awakened by the respondent who had told her he had sat down heavily on the couch, which had a faulty leg, and had severely injured the cat that was underneath the couch.  She said that the cat was gasping for air and that she told him that the only thing that she knew to do was to break the cat's neck because there was no veterinarian in town.  She then went back to bed and fell asleep.  She was subsequently awoken by the sound of a microwave door.  She went downstairs and saw the accused holding the cat outside of the microwave oven.  The microwave door was open, and the cat had a weight strapped overtop of it. 

[3]                In the trial transcript, she described the noise that the cat was making and what happened subsequently.  Page 39, line 10:

Q         What's the sound?

A          Still the breathing.  It was convulsing and if a -- the only way I can explain it is if a cat could scream, the sound that I heard from that is it would be like if a cat could scream.  It was horrible.

Q         Did you say anything or do anything when you saw this?

A          I -- I started yelling at him, "What are you doing?" and I was in complete shock.  Like, something like that doesn't happen every day.  And I went and sat on my stairs and cried trying to figure out what -- what was going on.

Q         What happened then?

A          J.R. walked towards me and threw the cat at me.  I missed catching it, and it hit the ground in front of me, gasping a few times while it was still convulsing and died.

[4]                In the course of their relationship the respondent had told her that he hated cats and that he was terrified of them.  Sara Kons was asked whether the sound of the microwave door closing alarmed her, and she said it did.  When asked why, she said and I am quoting from page 64 line 40:

A          I heard J.R. prior to that talk about things to do to cats, such as put them in water into a freezer and leave them there as well as microwave incidents.

Q         As well as what?

A          As well as what it would be like to put a cat in a microwave.

Q         You heard J.R. say about putting cats in a freezer?

A          Yes.

Q         And -- and what about a microwave?

A          Seeing what would happen if you put a cat in a microwave.

[5]                The respondent gave evidence at trial with respect to the effect of putting a cat in microwave.  At page 34, question 6, he was asked:

Q         Okay, so you would agree with me that if you put a cat in the microwave, it's going to heat up.

A          I would agree, yes.

Q         Okay.  And would you agree with me that it is cruel to put a cat in a microwave and heat it up?

A          I would agree, yes.

Later on at the same page, at Question 46:

Q         You would agree with me that it would be humane to break the neck of an animal as opposed to putting it in a microwave?

A          I would agree, yes.

[6]                The respondent's initial defence was one of alibi, although he later withdrew his claim that he was out of the country with his family on February 14, 2005.  He maintained, however, that he did not put the cat in the microwave and that he did not tell anyone that he did so. 

[7]                The learned trial judge disbelieved the respondent and said in his reasons for judgment at paragraph 47:

Having rejected the evidence of Mr. Hughes, finding that it is not accepted and does not raise a reasonable doubt, the next question is has the Crown proven its case?

The learned trial judge then went on and stated, commencing at para. 48:

The accused sat on the cat by accident.  He injured the cat accidentally.  The accused was told by Sara Kons to kill the cat, to break its neck.  Both Mr. Hughes and Ms. Kons thought that the cat was dying.  The purpose of killing the cat was to end the cat’s suffering.  The accused did put the cat into the microwave for some period of time.  The cat died that evening.  The accused told Sara Kons at the time that he thought the cat may die faster in the microwave.  I accept that the accused disposed of the cat and that Sara Kons disposed of the microwave. 

Commencing at para. 52 of his reasons for judgment, the learned trial judge said:

... I am satisfied that in most, if not all circumstances, putting a healthy cat into a microwave will amount to causing unnecessary pain and suffering to that animal.  I am also mindful of this:  In the case at bar, the cat was already seriously injured.  The cat was then killed to end its suffering.  It was not killed to cause it suffering; it was killed to end its suffering.  The accused accidentally injured the cat by sitting on it.  He told Sarah Kons this immediately.  He did not flee from that situation.  He called her.  She told him to kill the cat.  More precisely she said: 

And I had told him that the only thing I knew to do was to break the cat’s neck because there was no vet in town.  He was away in France, and I didn’t know what else to do about it.  I just didn’t know.

Carrying on, the learned trial judge said:

He then put the cat in the microwave for some period of time, less than a minute.  The cat did die.  There is no evidence as to the cause of death.  There is evidence that putting the cat out of its misery is better accomplished by breaking its neck than killing it in a microwave.

The annotations in Martin’s Criminal Code, s. 446, says as follows:

“Unnecessary” in this context means that man in the pursuit of his legitimate purposes is obliged not to inflict pain, suffering or injury which is not inevitable taking into account the purpose sought and the circumstances of that particular case.

The accused told Sara Kons that he thought the cat would die faster in the microwave.  In cross-examination two years later, he agreed that it may be more humane to break its neck than to put it in the microwave.  It is not clear that he knew that at the time.  It is not clear whether or not Mr. Hughes is correct when he says that.

I am left with this.  Mr. Hughes was drinking that night.  He accidentally injured the cat.  He admitted up to it.  He called out for Sara Kons.  He was told to kill the cat.  He chose a method, (arguably not the most humane, but with no evidence supporting that argument) and killed the cat by putting it into the microwave.  The purpose of his act was to end the cat’s suffering, not to cause suffering.

In my view, on these circumstances, on these facts, I am not satisfied beyond a reasonable doubt that the accused’s acts of February 14th were criminal.  I am left with a doubt.  I find him not guilty on Count 1.

[8]                The history of s. 429 and 446 of the Criminal Code has been analyzed by Judge Gorman in R. v. Clarke, [2001] N.J. No. 191, a Provincial Court decision.  The conclusions reached are set forth in paragraphs 58 to 62:

It is not necessary therefore, for the Crown to prove subjective foreseeability of the consequences for a conviction to be entered under s. 446 of the Code.  However, objective foreseeability of the consequences of the actus reus of s. 446 is constitutionally required. The definition of the word wilfully in s. 429 of the Code is, in my view, sufficient to comply with this constitutional requirement.

The Crown does not have to prove any ulterior motive nor does the Crown have to prove that the accused knew that the animal was suffering or that he or she intended for the animal to suffer.  The Crown must prove that the accused acted wilfully and caused the actus reus knowing that suffering was a likely result or that a reasonable person would realize that this was a likely result. In other words, objective foreseeability of the consequences of his or her act is sufficient.  The accused's moral blameworthiness lies in causing the suffering by a wilful act.  Perfect symmetry between mens rea and the consequences is not required under s. 446 of the Code nor is it a constitutionally mandated requirement.

This mens rea element can be proven by reasonable inferences from the accused's actions or through the doctrines of wilful blindness or recklessness (see R. v. Sansegret (1985), 18 C.C.C. (3d) 223 (S.C.C.) at pp. 223-237 and R. v. McHugh, [1966] 1 C.C.C. 170 (N.S.C.A.).

As a result, section 446(1)(a) of the Code does not require proof that the accused intended to act cruelly or that he or she knew that their acts would have this result.  Cruelty is a consequence, as is bodily harm under s. 267 of the Code (see R. v. Dewey (1999), 132 C.C.C. (3d) 348 (Alta. C.A.).

The objective foreseeability requirement must be tailored to the specific offence (see R. v. Nurse (1993), 83 C.C.C. (3d) 546 (Ont. C.A.); R. v. Swenson (1994), 91 C.C.C. (3d) 541 (Sask. C.A.); and R. v. Vang (1999), 132 C.C.C. (3d) 32 (Ont. C.A.).  Under s. 446(1)(a) of the Code the Crown must prove that "pain, suffering or injury" was a reasonably foreseeable consequence.  Under s. 446(1)(c) of the Code the reasonably foreseeable consequence relates to the provision of inadequate "food, water, shelter and care" for the animal.  The Crown does not have to prove that the accused intended this consequence.

[9]                At para. 68, the court concluded with respect to s. 441(a):

The actus reus of this definition of the offence requires proof that the accused caused unnecessary pain, suffering or injury to the animal.  The mens rea requirement requires the Crown to prove that the accused did so "wilfully". In the context of s. 446(1)(a) of the Code this requires proof that the accused intended such a consequence or that a reasonable person would realize that his or her acts would subject an animal to the risk of unnecessary pain, suffering, or injury.

[10]            I am satisfied that the learned trial judge fell into error when he stated that the purpose of putting the cat in the microwave was to end the cat's suffering, not to cause suffering.  That, in my view, is not the issue.  The issue is whether or not the Crown has proven that putting a cat in a microwave with a weighted strap on top of it, closing the door of the microwave and turning on the cooking device for approximately 54 seconds is wilfully causing unnecessary pain, suffering, or injury. 

[11]            If one were to look to the subjective foreseeability of unnecessary pain, suffering and injury, one might look to the past statements of the accused as well as his demeanour and actions after removing the cat from the microwave.  The respondent had previously stated that he hates cats and that he had talked about what it would be like to put a cat in a microwave.  On the night of the incident in question, he weighed down the cat, placed it in the microwave, and activated the appliance.  After the respondent removed the cat from the microwave, it was convulsing, and as Ms. Kons described it, "screaming."  This is certainly strong evidence of the degree of pain and suffering to which the cat was subjected.  Rather than displaying shock or remorse, the respondent then threw the cat at Ms. Kons.  On the level of subject foreseeability, this is strong evidence upon which to find that the respondent knew and intended for his actions to cause unnecessary pain, suffering and injury to the cat.  However, as articulated in R. v. Clarke, s. 446(1)(a) only requires the objective standard of reasonable foreseeability be satisfied.

[12]            I am satisfied the Crown has proven beyond a reasonable doubt that the accused acted wilfully when he placed the cat in the microwave, knowing that unnecessary pain, suffering and injury would likely result, or that a reasonable person would realize that it was a likely result.  I am satisfied that the Crown has proven that the unnecessary pain, suffering and injury was a reasonably foreseeable consequence. 

[13]            I would therefore grant the appeal, enter a finding of guilt, and remit the matter to Provincial Court for sentencing.

(Discussion)

[14]            THE COURT:  I am remitting the matter to Provincial Court in Fernie, and it will be set down for sentencing on April 22nd at 9:30 in the morning.

The Honourable Mr. Justice F. W. Cole