R. v. Connors Date:, 2011 BCPC 24

Citation: R. v. Connors Date: 20110202 2011 BCPC 0024 File No: 152916-3-C Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRENT MALCOLM CONNORS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE E. QUANTZ Counsel for the Crown: Leslie Baskerville Counsel for the Defendant: Martin Allen Place of Hearing: Victoria , B.C. Date of Hearing: January 26, 2011 Date of Judgment: February 2, 2011 Introduction [ 1 ] Mr. Connors is before me for sentencing following a guilty plea to two offences that occurred on January 1, 2011. The first is for causing unnecessary pain and suffering to a three month old pit bull dog contrary to

section 445.1(1) (

a) of the Criminal Code . The Crown has proceeded summarily and as a consequence the maximum penalty is 18 months incarceration. The second is a breach of recognizance by consuming or possessing a controlled substance contrary to the Controlled Drugs and Substances Act . The offender has remained in custody since the commission of these offences. [ 2 ] The Crown seeks a sentence of 3 to 4 months incarceration on the cruelty charge with a consecutive sentence of 30 days for the breach of recognizance. The Crown also seeks a 10 year prohibition from owning or possessing animals pursuant to

section 447.1 of the Code . The defense submits that the purpose and objectives of sentence are best achieved by recognizing time served, to be followed by a community-based disposition that supports the offender’s rehabilitation. The Circumstances

[ 3 ] Prior to January 1, 2011 the offender was living with his girlfriend at her parents’ residence. He was governed by a recognizance arising from other outstanding criminal charges. The relevant provisions of the recognizance included requirements that he not possess drug paraphernalia, that he not consume or possess controlled substances as defined in a Controlled and Drugs and Substances Act , and that he abide by a 6 PM curfew.

There were no apparent problems in his compliance with the recognizance while residing at this residence. [ 4 ] Approximately one month prior to the alleged incident, with the permission of his bail supervisor, the offender moved to the Travelers Inn on Douglas Street, at least in part, so that he could care for his friend’s dog.

According to the offender, the dog suffered an infection from clipped ears, was not well trained, and was defecating in the apartment partly due to the fact that the accused was governed by a 6 PM curfew and unable to take the dog outside as often as desirable. [ 5 ] The offender advises the court that by January 1, the combination of these circumstances and his consumption of alcohol and steroids led to the explosive and violent activity directed towards the dog.

He claims he has difficulty recollecting the incident leading to the dog’s death, and is unable to provide details to the court. [ 6 ] What we know from one witness is that at approximately midnight on January 1, 2011, the offender was observed with the dog exiting a vehicle in the parking lot adjacent to the hotel. The eyewitness advised the police that at that time the dog did not appear to be suffering from any injuries.

It would appear from these observations that the accused was out with the dog approximately 6 hours after his curfew. [ 7 ] Within the next hour one of the residents heard sounds coming from the offender's apartment which caused concern regarding the safety of the dog. This resident knocked on the door of the offender's apartment and when the offender answered he did not appear to be distressed. There was also loud music coming from his apartment. [ 8 ] Shortly thereafter adjacent residents heard smashing sounds and a dog crying.

Within minutes they called the police who attended to the offender's apartment approximately 5 minutes later. When the offender answered the door he appeared to be fairly calm and was not exhibiting signs of gross intoxication. The officers observed the young pit bull on the bed, apparently suffering from significant injuries. In pointing this out to the offender he became somewhat agitated, and his agitation increased when it became apparent the dog may be dead. The offender was subsequently arrested and returned to the police detachment.

He had no apparent injuries. [ 9 ] In executing a search warrant on the offender's apartment, the police smelled an overpowering odor of feces. They also observed, what I am satisfied was dog feces on the walls of the suite, the floor, on the bed sheets, and in the bathroom and kitchen. They found blood from the puppy on the floor, the shower curtain, the bed, and the bathroom and bedroom walls.

In a further search of the apartment the police discovered one full and one half empty bottle of vodka, drug paraphernalia, a baggie containing what appeared to be cocaine residue, and behind at tile in the bathroom illegal steroids, cell phones and score sheets. [ 10 ] On arrival at the veterinarian's, the puppy was dead from internal bleeding and injuries caused by blunt force trauma. Examination of the young pit bull disclosed 10 broken ribs, a broken jaw and orbital bone, missing teeth, a lacerated liver and lacerations to the tongue.

In addition, the examiner observed injuries that he or she believed were consistent with human bite marks. However, the offender denies biting the dog. When given the opportunity to prove this aggravating circumstance beyond a reasonable doubt, the Crown declined to call evidence as contemplated in section 724(3) (

e) of the Criminal Code . As a consequence, the cause of these marks remains unexplained. The Offender [ 11 ] The offender is 24 years of age. His counsel advised that the offender experiences enormous pressure to perform in life and is lacking in self-esteem. He further advised that the offender seeks to compensate for these issues by reliance on steroids and incessant body building. The court was informed that one of the side effects of steroid use, particularly when combined with alcohol, is heightened aggression and potential violence by the offender.

The court indicated that if the defense was relying on this as a mitigating circumstance, evidence would be required to support the proposition that steroids can have this effect, and the court would order a presentence report with a psychiatric component as requested by Crown Counsel. [ 12 ] Section 724(3)(

e) of the Code authorizes the court to “request that evidence be adduced as to the existence of a fact." In all the circumstances, including the offender's custodial status and the fact that a report would take approximately 6 weeks to prepare, the defense advised the court that it was not relying on this as a mitigating circumstance. Counsel for the offender advised that he was providing this information to the court in support of the proposition that at the time of the incident the offender’s judgment and control over his emotions was somewhat impaired by the consumption of these drugs and alcohol.

I am satisfied this was the case, although I note there were no signs of gross intoxication. [ 13 ] The accused has a prior criminal record in 2008 for two drug offences and the careless use of a firearm. In total he spent approximately 5 months in jail for these offences. [ 14 ] The court was provided minimal information concerning the offender’s background, education, and prospects for the future, although there are clear opportunities for employment upon his release, provided he is able to address his dependency on drugs and alcohol.

In that regard he has spoken to an alcohol and drug counselor with the John Howard Society at Wilkinson Road jail. The plan he presents for his rehabilitation is attendance to the Kinghaven Treatment Center followed by drug and alcohol counseling in the community and attendance at AA/NA. Victim Impact Information [ 15 ] The owner of the dog has not provided victim impact information to the court, although I am advised by defense counsel that he has directed threats towards the offender.

Presentence Report [16] This sentencing hearing has been scheduled for some time, while the accused has remained in custody. At the start of thescheduled sentencing hearing the Crown sought a presentence report with a psychiatric component. This application was opposed by thedefense for the reasons stated previously.

As the application was not brought until the date of the sentencing hearing, as it was opposedby the defense, and given that it would result in a delay of approximately 6 weeks, the report was not ordered even though it may haveprovided some insight into the factors leading to the commission these offences.

Purpose and Objectives of Sentencing [17] The Criminal Code establishes that “the fundamental purpose of sentencing is to contribute, along with crime preventioninitiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one ormore objectives.” [18] These objectives include: denunciation; deterrence of this offender and others; separating the offender from society wherenecessary; rehabilitation; repairing harm; promoting a sense of responsibility in the offender; and acknowledging the harm caused to thevictim and the community. [19] In determining a fit sentence the court must consider the aggravating and mitigating circumstances, "all available sanctions otherthan imprisonment that are reasonable in the circumstances," and the least restrictive sanction that is appropriate.

Additionally, "asentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances." [20] As stated by the Supreme Court of Canada in R. v C.A.M., (SCC), [1996] 1 SCR 500 at page 559 "in the finalanalysis, the overarching duty of a sentencing judge is to draw upon all legitimate principles of sentencing to determine a "just andappropriate" sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender." The Aggravating and Mitigating Circumstances [21] The mitigating circumstances include the offender’s early guilty plea.

The aggravating circumstances include; the extremebrutality of the offence and the callous disregard the offender showed for the health and well-being of the young dog, the somewhatprotracted nature of the violence and suffering, and the fact the offender appears to have continued the offence after the first neighborattended to his door providing him the opportunity to pause and reflect. The Relevant Case Law [22] Counsel referred to a number of authorities where sentences were imposed for similar offences.

In most of these cases theoffences were committed before the April 17, 2008 amendments to the Criminal Code which significantly increased the maximumpenalties.

Section 11(

i) of the Charter provides that where the punishment for an offence changes between the offence and the date ofsentence, the offender is entitled to the lesser punishment. As a consequence, I will briefly refer to the cases in chronological ordersetting out the date of the offence relative to these amendments to the Criminal Code. [23] In R. v. Jones, [1997] O.J. No. 1288 a decision of the Ontario Court of Justice, the offence occurred prior to March 1997.

Theyouthful offender who had no prior criminal record choked, kicked, dragged, punched and threw the dog, causing it to suffer a broken legwhich remained in a cast for several weeks. The offender did not accept responsibility and received a 45 days sentence of imprisonmentfollowed by 12 months probation. [24] In R. v. Zeller, [1998] A.J. No.351 a decision of the Alberta Provincial Court, the offence occurred in August 1997. The adultoffender was engaged in an argument with his wife, and when he went to put the 16 week old puppy outside, it urinated on the floor.

Thisled to an argument regarding the dog and its lack of discipline with the offender then damaging property. When in the process of leavingthe premises he threatened to kill the dog. He subsequently killed the puppy by striking it numerous times in the head with a shovel. Theoffender had a prior criminal record and entered an early guilty plea. The court imposed a 60 day sentence followed by two yearsprobation. [25] In R. v. Power 2003 CarswellOnt 2764 a decision of the Ontario Court of Appeal the offence occurred in April 2002.

This young,first offender and two others, after capturing a healthy cat, tortured it for approximately 6 minutes prior to its death while videotapingtheir crime. The offender retained the skinned body and head of the cat in his fridge and freezer. An effective sentence of 3 1/2 monthsincarceration followed by three years probation was upheld by the appellate court. In reaching this decision the Ontario Court of Appealstated as follows, "in fixing the appropriate penalty, the trial judge had to bear in mind that six months was the maximum penaltyprovided for that offence.

It may well be that the present maximum is wholly inadequate. That is, however, a matter for Parliament." [26] In R. v. Barnes 2005 CarswellBC 2088, a decision of the British Columbia Court of Appeal, the offence occurred in August2004. The court upheld a sentence of two years imprisonment for the offences of arson and theft as well as the six month concurrentsentences for the unlawful killing of two cats.

However, the case is of limited precedential value for this sentencing proceeding as theappellate court focused on the global sentence of two years and did not provide reasons concerning the appropriateness of the six monthconcurrent sentences for killing the two cats. [27] In R. v. Wicker 2007 CarswellAlta 669, a decision of the Alberta Provincial Court, the offence occurred in January 2006. Theoffender was depressed from relationship difficulties with his common-law partner and other setbacks in his life.

He returned home tofind cat feces throughout the living room and in anger forced the cat into scalding water in the bathtub. He held it there for over 2minutes. The offender subsequently failed to obtain appropriate veterinarian care and the cat eventually had to be euthanized. Theoffender had previously injured the cat on one other occasion. He entered a timely guilty plea, and there is no indication of a priorcriminal record. The court imposed a sentence of 90 days incarceration, to be served intermittently. [28] In R. v.

Canaday File No. 21463-1-T, a decision of the British Columbia Provincial Court, the offence occurred in December

2006. The offender attacked a cat with a broom over a prolonged period causing extreme pain and leaving blood, cat fur, and feces throughout the house. The cat was subsequently euthanized. Following a guilty plea the 33-year-old offender received a 30 day sentence followed by six months probation. [ 29 ] In R. v. Rabeau 2010 CarswellAlta 954 a decision of the Alberta Provincial Court, for an offence that apparently occurred in August 2007.

The offender while urinating in a grassy area near an off leash park, was approached by an excited puppy in a manner which caused the offender to fear he was about to be bitten. He returned to his vehicle and obtained a wooden object which he used to strike the dog once on the head causing its death. The offender had no prior criminal record, was 19 years of age, and came from a stable family. Following his guilty plea the court imposed a conditional discharge with probation for 12 months. [ 30 ] In R. v.

Piasentin 2008 CarswellAlta 765 , a decision of the Alberta Provincial Court, the offence occurred prior to November 30, 2007. After drinking heavily and consuming cocaine, the offender discovered that his puppy had urinated in the basement and on the offender's bed. In an angry outburst the offender struck the puppy repeatedly to the point of unconsciousness causing injury to the dog’s lung, brain and liver. The dog was euthanized the following day. Evidence was led to the effect that the combination of alcohol and cocaine partially explained the offender's loss of inhibition and attack on the puppy.

The offender was 26 years of age and had no prior criminal record. His risk for violent reoffending was moderate. Following a guilty plea and his demonstration of genuine remorse the court imposed a five month conditional sentence. [ 31 ] In R. v. Folk File No. 84108-1 Kamloops Registry, a decision of the Provincial Court of British Columbia, the offence occurred in December of 2007. While experiencing extreme frustration in the failure of his neighbour to prevent his dog from barking, the offender entered his neighbour's yard where he was bitten.

Out of anger and frustration he stabbed the dog six times in the neck and chest area causing its death. The offender had previous psychiatric issues and a prior conviction for impaired driving. After a trial, the court imposed a conditional sentence of six months to be followed by two years probation. In doing so the court commented that this offence was one that "might easily draw a sentence of three or four months in jail." [ 32 ] In R. v. Stuart File No. 196079-1 Vancouver Registry, a decision of the B.C. Provincial Court, the offence occurred in January 2008.

The offender pleaded guilty to killing his 15 week old pit bull that was experiencing behavioural problems. While the offender was under the influence of medication which affected his judgment, the dog bit the offender. The offender responded by killing the dog by striking it with a hammer. The offender had an old conviction for assault and was sentenced to the equivalent of approximately 2 months custody and $1000 fine. [ 33 ] In R. v. Bastarache File No. 82388-1 Kamloops Registry, a decision of the BC Provincial Court, the offence occurred before April 2008.

The offender abused the dog for approximately a half hour, including by slinging it over his head while the dog was held on a choke chain, and then slamming it into the ground. The dog did not suffer serious injury. The court imposed a 30 day jail sentence. [ 34 ] As stated previously, in April 2008 Parliament amended the penalty provisions for this type of offence raising the maximum sentence from six months to a maximum of five years incarceration where the Crown proceeds by indictment, or as in this case where the Crown proceeds summarily, to a maximum of 18 months incarceration.

Further, Parliament increased the maximum period that the court can prohibit an offender from possessing animals from two years to "any period that the court considers appropriate but, in the case of a second or subsequent offence, for a minimum of five years." [ 35 ] The only authority referred to by counsel where it is clear the offence occurred after these new penalties came into effect was R. v. Munroe 2010 CarswellOnt 3983 a decision of the Ontario Court of Justice.

In that case over a number of months the offender subjected two dogs to what the court described as torture using heat, electricity and blunt force. The injuries included haemorrhaging, a separated retina, a collapsed lung, and 14 rib fractures to one of the dogs. The injuries to the other dog were not described.

The court described the offender's activity as "necessarily involving some element of deliberation, a calculated act of cruelty" and that "these were not the fruits of a single act of misguided anger or frustration; they reflect multiple injuries of different types inflicted at different times over a prolonged period." The offender had no prior criminal record and following trial, the court imposed a jail sentence of 12 months. [ 36 ] In doing so, the court commented as follows, "on April 17, 2008 Parliament gave effect to widespread concerns that the Criminal Code provisions concerning cruelty to animals had fallen drastically out of step with current social values and restructured those provisions." The court later stated in its judgment that these amendments "represent a fundamental shift in Parliament's approach to these crimes." Decision [ 37 ] Firstly, the Crown seeks an order of prohibition pursuant to

section 447.1(1) of the Criminal Code for a period of 10 years. In all the circumstances, including the level of brutality directed towards this young dog, I am satisfied that the offender should be prohibited from owning, having the custody or control, or from residing in the same premises as an animal or bird for 10 years, and I make that order. [ 38 ] Secondly, it is clear that in addition to any other sentence I impose, that a lengthy period of probation is required to support the offender's rehabilitation in the community.

As a consequence, a two-year probation order will follow the custodial sentence with these conditions: that he keep the peace and be of good behaviour; that he report to his probation officer at the address set out in the order within 24 hours of his release from custody and thereafter as directed; that he seek and maintain employment; that he not possess or consume any non-prescription drugs as defined in the Controlled Drugs and Substances Act ; that he attend and successfully complete any counselling or treatment as directed by his probation officer, including residential drug and alcohol treatment; that he attend the Victoria Forensic Outpatient Clinic as directed by his probation officer; that he not possess any weapons as defined in

section 2 of the Criminal Code ; that he not possess knives except for the immediate preparation and consumption of food or as required for work; and, that he complete 75 hours of community work service during the first year of this order. [ 39 ] This brings me to the fundamental point of difference between the Crown and the defence, and that is whether a further period of incarceration is required in order to meet the purpose and objectives of sentence.

[40] The Criminal Code makes it clear that the wilful infliction of unnecessary pain and suffering on animals violates one of the basictenants of our society and is deserving of punishment. It is also conduct which most members of our society find repugnant and morallyreprehensible. [41] The objectives of sentence to be emphasized in this case are denunciation and deterrence without losing sight of the offender'sprospects for rehabilitation. [42] As emphasized by our Court of Appeal in R. v. Bhalru, [2003] BCCA 645 at paragraph 45: "Denunciation has both punitive andexhortative elements.

It satisfies a community's desire and need to condemn certain conduct, and also plays a more positive role incommunicating and reinforcing society’s shared set of values as described in the Criminal Code." [43] Madam Justice Ryan of our Court of Appeal in R. v. Johnson, (1996) (BC CA), 112 CCC (3d) 225 atparagraph 29 described the court’s approach to deterrence this way: we must assume that deterrent sentences have some effect. It is futile to ask whether a particular sentence will deter others. That questioncan never be answered. Deterrence operates in a general way.

Those that would break the law must know, and law-abiding citizens mustbe assured, that lawbreakers will receive sentences which reflect the seriousness of their crimes. This will deter some potential offenders,it will not deter others. [44] In my view the gravity of the offence committed by the offender and his level of moral blameworthiness requires that he receivea custodial sentence in addition to the probation order.

In determining the appropriate length of that sentence I have considered thedefence submission with regard to time served, including that the offender should receive more than one for one credit for pre-trialcustody.

In February of 2010 Parliament amended the Criminal Code to provide that the maximum credit is one for one unless thecircumstances justify otherwise, and in such case the maximum credit is 1 1/2 for one for the time spent in pre-trial custody. [45] In his submission, defence counsel advised that his client’s instructions were that he had spent approximately 2 weeks insegregation, but that counsel had not had the opportunity to confirm these instructions.

In a letter to the court submitted by both counselon January 31, 2011 Crown Counsel advised that staff at Vancouver Island Regional Correctional Center confirmed Mr. Connors spentonly three days and two nights in segregation. The rest of his time has been in protective custody "where he has access to the sameprograms, amenities and recreation as do regular inmates in the general population." [46] Given this information, I am not satisfied that the circumstances justify more than the general maximum credit intended byParliament of one day for each spent in custody.

In all the circumstances I am giving him credit for one month pre-trial custody. [47] As is apparent from the

summary of the case law referred to above, in similar cases, prior to the amendments to the CriminalCode which increased the maximum penalties, for similar offenders and similar cases the sentences ranged from a conditional dischargeto 3 1/2 months in custody. Most offenders received a short period of incarceration. [48] In my view, the gravity of the offence here given the level of suffering caused and the offender’s level of moral blameworthinesspreclude the possibility of a conditional sentence order as being appropriate. That sentence would not meet the objectives ofdenunciation or deterrence.

Further, I am not confident that the offender would comply with the conditions of the order. [49] In increasing the penalties Parliament did conclude that the previous maximums were wholly inadequate and failed to representthe prevailing views in society as to the seriousness of these offences.

However, it is also important to remember that while increasingthe maximum penalties, the range of sentences still considered appropriate by Parliament remain broad and include an absolutedischarge. [50] This is a serious offence involving the brutal beating to death of a young dog over an approximate 15 minute period, incircumstances where it appears the offender’s inhibitions were only minimally diminished by the consumption of alcohol, and illegaldrugs taken in contravention of a court order.

His actions remain largely unexplained, and there are no signs of significant remorse,although much to his credit the offender has accepted responsibility through his early guilty plea. [51] To fulfill Parliament’s intention in making these more serious offences requires in this case that a longer period of incarcerationbe imposed than in the majority of cases decided prior to the amendments. However, this case is also to be distinguished from R. v.Munro where the offence occurred after the amendments and the offender received a one-year sentence.

In that case the offenderperpetrated extended multiple acts of varying forms of torture on two animals over many months. [52] In all the circumstances the least restrictive sentence which reflects the purpose and objectives of sentence, including the gravityof the offence and the offender’s level of moral blameworthiness is six months incarceration. He is entitled to one-month credit for pre-trial custody. The sentence I am imposing today is a further five months incarceration on count one. The appropriate sentence on thebreach of recognizance is 30 days.

However, as the two offences arise out of the same circumstances, and as the possession andconsumption of the illegal drugs was an aspect of the circumstances in the cruelty charge, that sentence is to be served concurrently. ________________________ E. Quantz Provincial Court Judge