R. v. Robinson, 2013 BCPC 445

Citation: R. v. Robinson 2013 BCPC 445 Date: 20130729 File No: 93023 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RUTH PATRTICIA ROBINSON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C.D. CLEAVELEY Counsel for the Crown: Ms. Alexandra Janse Counsel for the Accused: Mr. David Hughes Place of Hearing: Kamloops , B.C. Dates of Hearing: March 19, 2013 and May 13, 2013 Date of Judgment: July 29, 2013 INTRODUCTION

[ 1 ] Ruth Patricia Robinson is charged that on June 5, 2011 near Clinton, British Columbia, she did wilfully and without lawful excuse kill a dog, which was kept for a lawful purpose, contrary to s. 445(1) (

a) of the Criminal Code . [ 2 ] Mr. Hughes, on behalf of Ms. Robinson, argued that there are two statutory defences available: firstly, s. 11.1(2) of the Livestock Act , R.S.B.C. c. 270; and secondly, s. 39(1) of the Criminal Code . [ 3 ]

Section 11.1(2) of the Livestock Act reads as follows: 11.1(2) A person may kill a dog if the person finds the dog (

a) running at large, and (

b) attacking or viciously pursuing livestock. [ 4 ] Section 39(1) of the Criminal Code reads as follows: 39.

(1) Every one who is in peaceable possession of personal property under a claim of right, and every one acting under his authority, is protected from criminal responsibility for defending that possession, even against a person entitled by law to possession of it, if he uses no more force than is necessary. [ 5 ] Specifically, Mr. Hughes submitted that the dog had attacked or viciously pursued Ms. Robinson’s livestock, and when it was shot by Ms. Robinson, it still presented a clear and present danger to her livestock.

Therefore, her actions fall squarely within s. 11.1(2) of the Act . [ 6 ] In regards to s. 39 of the Criminal Code , the argument advanced by Mr. Hughes is that Ms. Robinson feared for her safety and the safety of her dogs when she shot and killed the dog. Furthermore, the force she used was no more than what was necessary in the circumstances. [ 7 ] In response, the Crown argued that the facts do not justify a finding that s. 11.1(2) of the Act is available to Ms. Robinson. The dog was a significant distance from the cattle when Ms. Robinson shot it. The cattle were not injured.

The dog did not pose a threat to Ms. Robinson and her two dogs. Finally, Ms. Robinson had other options available to her, other than killing the dog. [ 8 ] Also, the Crown argued that s. 39 of the Criminal Code which deals with the defence of property, has no legal application in this case. The

section deals with an attack by a person, not an animal. Alternatively, if the

section is applicable, the circumstances did not justify the use of lethal force.

SUMMARY OF THE EVIDENCE [ 9 ] Wayne Harold Karl Beck lives on Sharpe Lake. His residence is on a lakefront lot. Mr. Beck’s property extends back from the lake approximately 200 feet. To the north of Mr. Beck’s property is the ranch operated by Ms. Robinson and her husband. The ranch also borders Sharpe Lake. Between the two properties is a narrow road, which provides access to the lake. The road is fenced on both sides. [ 10 ] Mr. Beck has lived on his property for 15 years. He has been neighbours with the Robinsons since they moved onto the ranch seven years ago. [ 11 ] In May 2011, Mr.

Beck obtained the dog shot by Ms. Robinson. He named him “Bud”. Bud was a Leonberger and was described as a “huge dog”. Mr. Beck believed Bud weighed approximately 120 pounds. Bud was a pet. He slept inside and Mr. Beck described him as a “perfect family dog”. Mr. Beck wanted a large dog because of the number of predators in the area. [ 12 ] On June 5, 2011, Mr. Beck and Bud were down near the lake when Bud ran off. Bud ran straight up Mr. Beck’s property. Mr. Beck lost sight of Bud after about 20 or 30 feet. Mr. Beck did not know where Bud had gone. [ 13 ] Mr.

Beck said that Bud was not free to roam, but that he did not always obey him. When he first got Bud, he would not return when called. On this day, Bud did not respond when Mr. Beck called out. [ 14 ] Mr. Beck walked up to the top end of his property and looked across to the Robinson’s property where he saw some cows. He did not see Bud. [ 15 ] Mr. Beck walked back to the lake and continued searching for Bud, but could not find him. He saw a man, whom we know to be David Broswick, on the lake and fishing from his boat. [ 16 ] As Mr. Beck continued searching, he looked over to the Robinson’s property and saw Ms.

Robinson come around the side of her house with a rifle. [ 17 ] Mr. Beck went into this home, picked up his rifle and came back outside and used the nine-power scope to scan for Bud. He saw Bud coming up the hill from the front of Ms. Robinson’s property. [ 18 ] Mr. Beck suspected that Ms. Robinson may shoot Bud, so he fired a shot in the air in an attempt to warn Ms. Robinson off. [ 19 ] Mr. Beck then saw Ms. Robinson shoot Bud in the side. After Bud was shot, he ran approximately 100 feet and laid down. [ 20 ] Mr. Beck said at that point his “mind went haywire”. [ 21 ] Mr.

Beck estimated that Bud was 150 to 200 feet away from the cows when he was shot.

[ 22 ] Mr. Beck walked into the cabin and phoned the R.C.M.P. and reported Ms. Robinson for shooting Bud. [ 23 ] In cross-examination, Mr. Beck denied calling out to Ms. Robinson “he’s right behind you”. Mr. Beck acknowledged that he said something like, “if you hurt my dog I will hurt yours.” [ 24 ] Mr. Broswick was boat fishing on Sharpe Lake. Prior to this date Mr. Broswick did not know Ms. Robinson or Mr. Beck. [ 25 ] Mr. Broswick was approximately 200 metres from shore. He watched a “good part” of the following events through his binoculars. [ 26 ] Mr.

Broswick was headed straight towards the Robinson Ranch when he heard Bud begin to bark. When Bud went through the fence, he heard Mr. Beck “hollering” at Bud to come back, but the dog did not respond. Mr. Beck continued calling out to Bud throughout the event. [ 27 ] When Bud began chasing the cattle, they were coming down the fence line towards the lake. Bud chased the cattle, at a dead run, back up the fence line towards a shed on the Robinson property. Mr. Broswick lost sight of Bud and the cattle because of his perspective. Mr. Broswick estimated that there were about 50 cattle. [ 28 ] Mr.

Broswick next saw Bud within a very short period of time come out from the other side of the Robinson’s house. He heard Mr. Beck tell Ms. Robinson, (there was was approximately 50 metres between them), “if you shoot my dog I will shoot both of yours”. [ 29 ] Mr. Broswick heard a rifle shot. He looked back at Mr. Beck and saw that he had a rifle in his possession. Mr. Broswick said that Mr. Beck did not shoot the rifle in the air, he shot in the general direction of the Robinson property. [ 30 ] Mr. Broswick saw Ms. Robinson with a rifle in her hand. [ 31 ] When Bud came back into Mr.

Broswick’s line of sight, he was headed towards the lake. Mr. Broswick described Bud as “wandering around”, he was not chasing anything. Mr. Broswick does not remember if Bud was barking when he reappeared. [ 32 ] When Ms. Robinson shot Bud, he was facing the lake. Bud then ran past Ms. Robinson and towards Mr. Beck. He saw Ms. Robinson follow Bud and “put it out of its suffering.” [ 33 ] Mr. Broswick could not see the cattle when Ms. Robinson shot Bud. They were behind the buildings. [ 34 ] Mr. Broswick estimated that the entire incident, from the time Bud began to chase the cattle, until Ms.

Robinson shot him, was less than a minute. In that time, Bud ran approximately 100 metres. [ 35 ] The next day, when Mr. Broswick was leaving the lake, he stopped at the Robinson ranch, and introduced himself, in case they needed him as a witness. [ 36 ] Ms. Robinson has been involved with livestock most of her adult working life. In 2001, she and her husband bought Sharpe Lake Ranch. They own about 400 head of cattle. [ 37 ] On June 5, 2011, there were about 40 head of cattle in the pen. She estimated their value at close to $40,000. [ 38 ] Ms.

Robinson said that as a rancher, protection of your livestock is one of the most important considerations. [ 39 ] In her evidence, Ms. Robinson described the type of damage which can be caused when a dog chases cattle: “Cattle, when they are chased by dogs that are out of control, become very stressed. They become panicked and their normal activities are drastically changed by the stress involved in the actual pursuit. Cattle under stress can, you know, suffer from dehydration, from reduced milk production, from, you know, maternal dysfunctions with their calves, all kinds of things.” [ 40 ] Ms.

Robinson also said that other injuries include bite marks, injuries caused from the stress of trying to escape, and the danger of cattle smashing into fences and injuring themselves. [ 41 ] After the Robinsons bought the ranch, and at one of their first meetings with Mr. Beck, he asked if his dog (not Bud) could run at large. Ms. Robinson told him “no”. After that, there was one occasion when Mr. Beck’s dog was running at large on the ranch. [ 42 ] Ms. Robinson said that Mr.

Beck “always kept his dog on a leash but he continuously harassed our livestock using his dog or a club or a shovel every opportunity he had.” He did this when the cattle were on the road or on the Crown access. On one occasion, Ms. Robinson saw Mr. Beck chasing a bull with a shovel and his dog was loose. She yelled at him to stop, but he ignored her. On that occasion she said to him, “if I ever see your dog chasing my livestock, I’ll shoot it”. [ 43 ] Ms. Robinson had reported Mr. Beck to the R.C.M.P. numerous times because of his actions in encouraging his previous dog to chase their livestock.

At one point, the Robinsons considered buying surveillance equipment to record the difficulties with Mr. Beck’s dog. [ 44 ] Ms. Robinson said that there is no relationship between them as neighbours. [ 45 ] Ms. Robinson had only seen Bud on one other occasion. That was the day Mr. Beck brought him home. On that day, when Mr. Beck let Bud out of his truck, he ran away, in the opposite direction from the Robinson home. [ 46 ] Ms. Robinson had not seen Bud again until the day she shot him. As far as Ms. Robinson knew, Bud had never chased her livestock before.

[ 47 ] On June 5, 2011, Ms. Robinson and her husband were seeding property at the end of the lake, which is about a mile away from the house. After Mr. Robinson began seeding, Ms. Robinson returned home and had planned to cut the grass in the yard. [ 48 ] Before cutting the grass, Ms. Robinson needed to pick up some squawfish, which were on the grass. Ms. Robinson believed that the fish had likely been dragged up from the lake, by either an otter or a dog, after they had spawned. [ 49 ] As she was doing this Ms. Robinson heard a dog barking.

She knew it was not either of her two Border Collies, because they were with her. Ms. Robinson’s dogs are smaller, one weighs 50 pounds, and the other weighs 60 pounds. [ 50 ] Ms. Robinson went around the east corner of the house and looked across her property, through the cattle pens, towards Mr. Beck’s property. She saw the cattle walking down the fence line towards the lake. Mr. Beck was inside his property with Bud, who was barking at the cattle. [ 51 ] Ms. Robinson thought that Mr. Beck was trying to teach Bud the “same trick” as he had taught his previous dog. She heard Mr.

Beck tell Bud, “Yeah, that’s it, good dog.” [ 52 ] Ms. Robinson then saw Bud cross the Crown access and enter the field. After Bud entered the field, the cattle stopped and Bud started to run at them. The cattle turned and “stampeded off.” The cattle crossed the field on the run and entered another enclosure through a gate. Bud followed them. He was not barking. [ 53 ] When Bud was chasing the cattle, Ms. Robinson heard Mr. Beck yell at Bud to come home, but he did not respond. [ 54 ] Ms. Robinson was able to follow the progress of the cattle and Bud. When Ms.

Robinson was partway across the yard, she remembered that the .22 rifle was on the bench in the shop, and that she should get it. [ 55 ] Ms. Robinson continued walking and saw that the cattle were pinned up against the fence, trying to get away. In her words, “they were rattling the fences pretty good.” Bud was amongst the cattle. [ 56 ] At that point, one of Ms. Robinson’s two Border Collies barked, and Bud stopped chasing the cattle. He looked towards Ms. Robinson and her dogs, and he started coming towards her location. [ 57 ] Ms.

Robinson lost sight of Bud when she began “hustling” towards the shop to get the .22 rifle. Her dogs followed her. [ 58 ] Ms. Robinson put her dogs on the quad, where she knew they would be safe. She also told them to “stay.” [ 59 ] Ms. Robinson went into the shop and grabbed the .22 rifle and the shells. She came back to the quad and loaded the gun. [ 60 ] Ms. Robinson walked up to a high point on her property, but could not see Bud. She assumed that he was headed home, and that she would not be able to get a shot at him. She walked down towards the front of the house, along the lakeside, to try and find him.

She did not see Bud, but saw Mr. Beck. [ 61 ] At that point, she heard Mr. Beck yell out, “He’s right behind you”. Ms. Robinson turned around and saw Bud. He was standing with his head down sniffing the same area where she had picked up the squawfish. This was the first time that Bud had stopped moving since Ms. Robinson had first spotted him. [ 62 ] Ms. Robinson decided to shoot Bud, who was broadside to her and approximately 75 feet away. She believed that it was a “safe shot.” [ 63 ] Ms. Robinson fired twice and missed. Bud did not react to the shots. In Ms. Robinson’s words he “never even looked sideways”.

He kept sniffing at the ground. [ 64 ] From behind her, Ms. Robinson heard a rifle shot. She also heard Mr. Beck yell, “If you shoot that dog I’ll shoot both of yours.” Ms. Robinson testified that this had no effect on her. [ 65 ] Ms. Robinson “levered the gun”, fired again and hit Bud. [ 66 ] He yelped and ran towards Ms. Robinson. As Bud crossed over the deck of her house, he growled at her. He jumped off the deck and laid on the grass behind their propane tank. [ 67 ] Ms. Robinson walked over to where Bud was laying. He growled at her. Ms.

Robinson shot Bud a second time to put him out of his “misery.” After the final shot, Ms. Robinson knew Bud was dead. [ 68 ] When Ms. Robinson first shot at Bud, he was 150 to 200 feet away from her cattle. There was a similar distance between Bud and her dogs. [ 69 ] Ms. Robinson estimated that it was a minute or a minute and a half from the time Bud began chasing the cattle until she shot at him. [ 70 ] At the time of the final shot, Ms. Robinson described herself as “extremely stressed.” [ 71 ] Ms. Robinson testified that she shot Bud because she did not know what he was going to do next.

He was on the loose and out of control. She said that he was “totally capable of going back to the livestock, it was totally capable of getting to my dogs”. There were also some bulls in the area. Furthermore, if Bud was going home, he “was coming straight towards me.” [ 72 ] After Ms. Robinson shot Bud the last time, she put the gun away and sat on her front deck. After about 10 minutes, she called

911 and reported the shooting. [ 73 ] Ms. Robinson testified that she had an earlier experience of one of her dogs being attacked. Ms. Robinson was walking down the street in 100 Mile House with her dog on a leash when it was attacked by a pitbull. Her dog was 15 years old. The 10 minute struggle between the dogs took several people to break it up and in the process her husband was bit and her dog was very badly injured. Ms. Robinson found this very upsetting. CASE LAW-ANIMAL CRUELTY [ 74 ] In argument, I was provided with a number of cases which have dealt with similar facts and issues: 1) R. v.

Etherington , [1963] O.J. No. 876 ; 2) R. v. Klijn , [1991] O.J. No 3415 ; 3) Yuke (Private Prosecutor) v. Angus , [1995] O.J. No. 575 , the appeal judgment at [1996] O.J. No. 5431 ; 4) R. v. Cimbala , File No. 37224-1, Penticton Registry; and 5) R. v.

Prebushewski , File No. 45065-1, Vernon Registry. [ 75 ] Several of the cases contain the applicable principles to be considered, but for the most part, the cases focus on the reasonableness of the actions taken by each accused and whether this establishes a justification or a defence. [ 76 ] In Etherington , the accused was charged with a Criminal Code offence of wounding a dog. Mr. Etherington, who was concerned about a neighbour’s dog chasing his sheep, went to his neighbour’s property, on the same day, with his .303 rifle. When the neighbour called the dog, he was shot by Mr. Etherington at short range. Mr.

Etherington was convicted, in part, because he took the law into his own hands and he deprived the dog owner of his right to defend his dog under the Ontario Provincial Legislation. [ 77 ] One of the authorities referred to in Etherington was a 1915 English case which said, “and where it is shewn that the defendant’s property was in peril from the dog at the moment when the shot was fired because of the probability that the dog would attack the hens, it was not obligatory on the defendant to await the actual attack before shooting the trespassing animal”.

This passage lends some support for the position advocated by Mr. Hughes, because of the Defence position that the attack was ongoing when Ms. Robinson shot Bud. [ 78 ] In Prebushewski , another case which supports Ms. Robinson’s position, the accused was found not guilty of being involved in the killing of two dogs, who for the second time, had harassed livestock owned by the accused’s family. The accused had seen the two dogs chasing a dozen calves to the extent that they looked exhausted, with their tongues hanging out. The accused was concerned that the calves could develop pneumonia.

The accused tried to get the dogs to leave, but they would not. The accused planned to get a gun, and as he began to drive away, the dogs left the pen and were in the field. The accused stopped, called out for the dogs and they came up to him as they had on the prior occasion. He tied them up and took them approximately two kilometres to his residence to ask his father what should be done with the dogs. He was told that this was the second time that they chased the cattle and that they should be put down.

The trial judge found that there was justification for killing the dogs because this was the second time, which they had chased cattle belonging to the accused’s family and the Livestock Act , s. 11 offers protection in the circumstances of the case. [ 79 ] In Klijn , the neighbour’s 10-month old German Shepherd pup got loose and chased cattle belonging to the accused. The accused attempted to scare the dog away and fired a shotgun into the air several times. The dog was then separated from the cattle, but it did not go home and remained on the accused’s property.

The accused went out on his all-terrain vehicle and shot the dog with the shotgun. The trial judge, in convicting the accused, said that he did not think that the dog was a threat to the livestock of the accused. The trial judge also found that the accused was extremely upset because he had suffered other losses, but in this case, he acted prematurely. There was no lawful excuse of the killing of the dog. [ 80 ] In Yuke v. Angus , the trial judge found that the accused assumed that the dog might have frightened his cattle.

There was no evidence to support a conclusion that the dog had attacked or was about to attack the cattle. Also, the trial judge found that the evidence was very clear that the dog was not any danger to people. The trial judge concluded that the accused did not have a defence at common law in these particular circumstances. [ 81 ] In Cimbala , the decision also turned on the facts. The accused lived on four acres of land, which was partially fenced and included a vineyard, a residence, and chicken coops. The accused sold eggs from his chicken operation. A nearby neighbour owned two dogs.

The dogs escaped from their home and the dog owner became aware of this shortly thereafter. She used her vehicle to search for them and a short while later she saw them in the field belonging to the accused. She stopped and called to the dogs and one of the two ran to her immediately and the other sauntered towards her. At that time the accused walked towards her carrying a pellet gun. He fired a single shot hitting the dog on his nose. Subsequently, the owner took the dog to a veterinarian where it was discovered that there were fractures to the dog’s pallet and his left nostril was shredded.

The accused argued that he was justified in shooting the dog because he was fearful of it and that he did so in order to protect his chickens. The trial judge, in no uncertain terms, held that Mr. Cimbala had “absolutely no need to shoot this animal”. The dog did not pose a threat to him and it had not been established that the dog had killed any of Mr. Cimbala’s chickens. Also, the trial judge found that Mr. Cimbala did not avail himself of other means to scare the dog away.

ANALYSIS [ 82 ] I shall begin by considering the issues raised in regards to the Livestock Act and then deal with the Criminal Code defence. [ 83 ] In this case, Ms. Robinson admits to killing Bud. There is also no issue that Bud was running at large. [ 84 ] In my mind, there is a significant issue to be resolved as to whether Bud was “attacking or violently pursuing livestock” as that

phrase is used in the Livestock Act or merely chasing the cattle. [ 85 ] Mr. Boswell saw Bud, at a dead run, chase the cattle, until he lost sight of both the cattle and Bud. He later saw Bud near the lake. Mr. Boswell’s estimate of the total distance Bud ran from the time he first saw him, to where he was shot is approximately 100 metres. All of this occurred in less than one minute. [ 86 ] I do not know from Ms. Robinson’s evidence the distance Bud chased the cattle. Ms. Robinson’s evidence is that Bud was approximately 150 to 200 feet away from the cattle when she shot at him the first time.

Her time estimate for the entire event is one to one and one-half minutes, which is similar to Mr. Boswell’s time estimate. [ 87 ] From the evidence of both Ms. Robinson and Mr. Boswell, and the sketch, Exhibit 3 (which is not to scale), it must be the case that Bud chased the cattle for less than one minute (some of the time being accounted for in the actual shooting) and perhaps for approximately 150 feet (some of the distance being accounted for when Bud left the pen and went towards the lake). [ 88 ] Ms. Robinson saw the cattle “stampede” across the field with Bud following them.

A very short time later the cattle were pressed up against the fence and Bud was amongst them. [ 89 ] There is no reliable evidence that Bud was barking when he chased the cattle. [ 90 ] There is also no evidence that Bud nipped, bit, or injured any of the cattle. This is not a case like Prebushewski , which was a second occasion, and where the cattle were exhausted, with their tongues hanging out. [ 91 ] When one of Ms. Robinson’s dogs barked, the chase ended. Clearly, Bud was easily distracted. At that point, Bud came towards Ms.

Robinson and her two dogs. [ 92 ] When I give the words “attacked” and “viciously” their ordinary dictionary meaning, there is no merit to the argument that Ms. Robinson found Bud attacking or viciously pursuing her livestock. In my view, Bud spooked and chased the cattle, over both a short distance and duration. [ 93 ] In her evidence, Ms. Robinson said that Mr. Beck encouraged Bud on this occasion and that she believed he was teaching Bud the same trick as he had taught his previous dog. I do not believe this evidence. It is clear on the evidence of both Mr. Beck and Mr. Boswell, that Mr.

Beck was calling out to Bud to get him to come home. He was not encouraging Bud to chase the cattle. [ 94 ] Similarly, there is no substance to the position advocated by Mr. Hughes that the attack was ongoing or that this was one continuous chain of events. [ 95 ] The evidence is that after Bud stopped chasing the cattle, he left the pen and came towards Ms. Robinson and her two dogs. There is no evidence that he charged at them. [ 96 ] At the point Bud started to come towards Ms. Robinson and her dogs, Ms. Robinson took steps to ensure the safety of her dogs, and took possession of the .22 rifle. [ 97 ] Ms.

Robinson searched for Bud, and only saw him after Mr. Beck yelled and told her that he was behind her. She turned and saw Bud standing with his head down sniffing at the scent of a dead fish. Bud did not move from this spot. He continued to sniff the ground, even when Ms. Robinson fired two shots at him. He was not a threat to anything or anyone at that point. [ 98 ] This was only the second time that Ms. Robinson had seen Bud. As far as she knew, Bud had never chased her cattle. It is pure speculation on the part of Ms. Robinson that Bud was capable of going back at her livestock, or interested in her two dogs.

Even if I am mistaken on this point, Bud had not attacked or viciously pursued any animals. [ 99 ] Before shooting at Bud, Ms. Robinson had other options open to her. She could have yelled at Bud to scare him off, called out to him, or told Mr. Beck to remove his dog. [ 100 ] The facts in the case before me are somewhat similar to the Klijn decision, where the trial judge found that the accused was frustrated by other livestock losses, and acted prematurely when he shot and killed a dog. [ 101 ] Ms. Robinson, likely because of the longstanding animosity with Mr.

Beck, which I can understand, acted prematurely when she shot and killed Bud. [ 102 ] In his submissions, Mr. Hughes very forcefully argued that this case is an opportunity for the court to make a significant finding which would give some clear guidance to ranchers. I do not agree with that submission. At the time Ms. Robinson shot and killed Bud, he posed no danger to Ms. Robinson, her dogs, or her cattle. It is more likely that Bud had moved on to his next adventure, at the time Ms. Robinson shot him. This case is like many of the others referred to me in argument, it turns on its own limited facts.

It is more a question of common sense than a significant legal ruling. [ 103 ] To conclude this aspect of the case, the Livestock Act offers no protection to Ms. Robinson. [ 104 ] In terms of the argument leading to s. 39 of the Criminal Code , I was presented with two conflicting decisions. [ 105 ] Mr. Hughes presented me with R. v. Shaw , 93 A.R. 86 . Mr. Shaw saw a neighbour’s Hereford bull breeding one of his four purebred Limousin cows. For approximately 15 to 20 minutes, Mr. Shaw attempted to chase the bull back to its own pasture using his truck and dogs.

He then called the owner of the bull and told him of the difficulty, but was told by the bull owner that he was no prepared to come out in the evening, but he would look after the problem in the morning. Mr. Shaw told the bull owner that if he did not remove his bull in 10 minutes it would be shot. Mr. Shaw then called the RCMP, told them of the problem, and that he was going to kill the bull if it was not removed. He followed this up by calling the Animal Control Division of the SPCA and told them of his actions.

With no assistance forthcoming, Mr. Shaw returned to his field and shot and killed the bull. He was charged with wilfully killing cattle contrary to s. 400 (

a) of the Criminal Code . The trial judge found that s. 39(1) of the Criminal Code provided Mr. Shaw with the legal justification for his actions. The trial judge accepted that Mr. Shaw honestly believed that the only way left to him to prevent the bull from further breeding of his purebred stock was to kill it. [ 106 ] Ms. Janse provided me with R. v. Murphy , [2010] N.S.J. No. 30 . Mr. Murphy shot and maimed his neighbour’s dog which had trespassed onto his property where he kept his chickens. The dog had not injured any chickens and was not attacking the chickens when shot.

In the past, the dog had killed a number of Mr. Murphy’s chickens. [ 107 ] The trial judge held that s. 39 of the Criminal Code had no application: 17. By virtue of s. 8(3) of the Criminal Code , “every rule and principle of the common law renders any circumstance a justification or excuse for

an act or a defence to a charge continues in force ... except in so far as they are altered by or are inconsistent with this Act or any other Act or Parliament.” Mr. Murphy has pled “defence of property” from the common law to justify his actions. This is distinct from what is often termed defence of property under sections 38 to 42 of the Code which deal with defensive actions taken against another person. [ 108 ] In my view, it was unnecessary in the Shaw decision for the trial judge to refer to s. 39(1) to find a justification for Mr. Shaw’s actions. The common law defence of defence of property was available.

Furthermore, I agree with the more considered reasoning in the Murphy decision that s. 39 to 42 of the Criminal Code are intended to “deal with defensive actions taken against another person”, and not animals. [ 109 ] Accordingly, s. 39(1) of the Criminal Code is not available to Ms. Robinson in this case. [ 110 ] If I am wrong in this finding, I would, based on my earlier reasoning, find that Ms. Robinson used more force than was necessary in the circumstances of the case. She had other options other than killing Bud. [ 111 ] Ms.

Robinson led evidence as to an encounter in 100 Mile House when a pit bull attacked and very badly injured her 15-year old dog. In the attack, Mr. Robinson was also bit. [ 112 ] I can understand that Ms. Robinson found this upsetting, her dog was injured and so was her husband. There is no evidence before me as to when this event took place. Also, this event, when viewed in the context of the shooting of Bud, does not persuade me that Ms. Robinson had a reasonable basis to believe that Bud posed a threat to her or her two Border Collies. As I said earlier, there is no evidence that Bud charged at Ms.

Robinson and her dogs. Furthermore, Ms. Robinson thought her dogs were safe and she had a loaded firearm with her and was capable of using it. [ 113 ] To conclude, I find Ms. Robinson guilty of wilfully and without lawful excuse killing the dog Bud. ________________________________ The Honourable Judge C.D. Cleaveley Provincial Court Judge