R. v. Zhu, 2022 BCPC 153

Citation: R. v. Zhu 2022 BCPC 153 Date: 20220629 File No: 262503-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. YIMING ZHU REASONS FOR SENTENCE OF THE HONOURABLE JUDGE H. DHILLON Counsel for the Crown: R. Bellis Counsel for the Defendant: M. Mines Place of Hearing: Vancouver , B.C. Dates of Hearing: May 18, June 20. 2022 Date of Judgment: June 29, 2022

Introduction [ 1 ] Yiming Zhu has entered a guilty plea to count 2 of information 262503, admitting that on or about the 20 th day of May, 2021, in Vancouver, B.C., he wilfully caused unnecessary pain, suffering or injury to a kitten, an offence contrary to s. 445.1(1) (

a) of the Criminal Code . [ 2 ] He is before the Court for sentencing. [ 3 ] I have had the benefit of submissions from the Crown and from counsel for Mr Zhu. I have reviewed the pre-sentence report of Mike Yau, the psychiatric report of Dr LeeAnne Meldrum, and the clinical report of veterinarian Dr Jonathan Woodbury of the Vancouver Animal Emergency & Referral Centre. I have reviewed the materials submitted on behalf of Mr Zhu. Circumstances of the Offence [ 4 ] The circumstances of the offence can be summarized as follows: at about 1:30 a.m. on 20 May 2021, a neighbour heard the sounds of an animal in distress.

The neighbour saw Mr Zhu in his backyard kicking a kitten and swinging it repeatedly by its tail. On each swing he smacked its body against the concrete. He next moved the now inert kitten to the property fence for a brief period of time, then to another fence. He paused between these acts, going into the house or garage on a few occasions and returning to the kitten. He placed the kitten onto the grass in the middle of the yard. He put his left foot on its head, pressing it to the ground, and pulled up its tail with his right hand.

He then walked away. [ 5 ] The neighbour called the police who arrived at 1:52 a.m. The kitten was alive but barely moving when found by police in the yard at 1:55 a.m. Mr Zhu was arrested. [ 6 ] Police transported the kitten to an animal emergency clinic for assessment and treatment. Dr Jonathan Woodbury determined that the animal was in critical distress. It was too severely injured to be treated and was humanely euthanized at 2:35 a.m. [ 7 ] Mr Zhu does not dispute these facts. [ 8 ] Mr Zhu cooperated with police and agreed to be interviewed by them. He provided an explanation to police for his conduct.

He said he purchased the kitten in April 2021. He had never owned a kitten before. He found that not only was he allergic to it, but its daily care and management became a burden to him. It was not using the litterbox, which annoyed him. It would regularly bite and scratch him and did so the evening of the offence. He admitted he wanted to punish it, so he picked it up, swung it, smashed it to the ground and stepped on it. [ 9 ] Mr Zhu’s personal circumstances are set out in the pre-sentence report and psychiatric report. Mr Zhu has no prior criminal history and this is his first criminal offence.

He was 22 years old at the time. Mr Zhu was born in 1998 and came to Canada from China at age 15 to live with his mother with the objective of finishing high school and later university. His mother returned to China after he completed high school. In May 2021, he was living largely on his own in a family owned residence in Vancouver. He was then attending university. He was feeling depressed and lonely, and his dating relationships were short-lived and unsatisfactory. [ 10 ] Mr Zhu has now completed his university studies in Canada. He has a major in Economics with a minor in Earth and Atmospheric Sciences.

He has been accepted into a Master’s program at a University in the United Kingdom commencing in September 2022. [ 11 ] Mr Zhu was assessed at Vancouver Regional Forensic Clinic on Aug 13, 2021. The report of Dr Meldrum dated November 15, 2021, outlines Mr Zhu’s life circumstances, including that he purchased the kitten in April 2021 because he was feeling isolated and stressed with his academic demands. He was feeling depressed and lonely. He had no prior exposure to domestic pets, which had never been permitted in the family home.

The kitten was supposed to be a companion but managing it added more stress in his life. His mounting frustrations with the kitten urinating and defecating in the house, and biting and scratching him, reached the point that he lashed out at the kitten in the manner described in the agreed facts. [ 12 ] Mr Zhu told Dr Meldrum that he is ashamed and embarrassed by his actions, and regrets the harm his offence has caused to his neighbours, his community and, in particular, his parents. His mother writes that her son made a tragic mistake which has resulted in emotional stress to the family.

She states he does not have a history of violence. [ 13 ] It is the opinion of Dr Meldrum that Mr Zhu does not have a major mental illness such as depression or psychosis but, as at May 2021, he was suffering from an adjustment disorder, with disturbance of mood and conduct. Being left alone for long periods of time may have contributed to his maladjustment. This disorder has since resolved. He appears to have gained insight into his offending behaviour.

During his forensic interview he expressed his deep regret and said that he was quite depressed after his arrest. [ 14 ] Dr Meldrum considers Mr Zhu to be at low risk for reoffending in a violent manner, including risk of future harm to animals. Sentencing Position of the Crown and Defence [ 15 ] The Crown seeks a jail sentence of 6 months followed by a 2 year probation order.

It also seeks an order under s. 447.1 (1) of the Criminal Code prohibiting Mr Zhu from owning, having custody or control of, or residing in the same premises as an animal or bird for 25 years. [ 16 ] The Crown notes that the maximum available sentence for the crime of wilfully causing unnecessary pain, suffering or injury to an animal under s. 445.1 (1) increased in 2008 to five years for indictable matters, and from six months to 18 months for

summary prosecutions.

[ 17 ] Thereafter, in 2019, Parliament legislated a further increase in the maximum sentence for

summary offences to two years less a day under s. 445.1(2) of the Criminal Code .

The Crown is proceeding summarily in this case. [ 18 ] The Crown submits that Parliament’s intention in raising the maximum sentence for causing unnecessary harm and suffering to an animal was to signal modern society’s abhorrence of such conduct and to require that criminal sanctions appropriately reflect the seriousness with which society should treat animal cruelty offences. [ 19 ] The defence seeks a conditional sentence of imprisonment of 15 months to be served in the community under strict conditions, followed by a probation order. The defence takes no position on the animal prohibition order.

The defence submits that non-custodial sentences have been imposed on similarly situated offenders for similar types of offences. Mr Zhu is a young man of prior good character who made a serious mistake for which he has taken responsibility through his guilty plea. He has been significantly deterred by his criminal prosecution and by the attendant negative publicity. The defence states that a sentence of imprisonment would have an adverse impact on his future prospects in life and education.

Sentencing Principles STATUTORY FRAMEWORK [ 20 ] The fundamental purpose of sentencing are set out in s. 718 of the Code : 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 21 ] The fundamental principle of proportionality under s. 718.1 of the Code is as follows: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 22 ] The secondary sentencing principles applicable to this case are contained in s. 718.2 including that a sentence must take into account the mitigating and aggravating circumstances in the case. [ 23 ] The following further sentencing principles must also be considered: 718.2 A court that imposes a sentence shall also take into consideration the following principles: ... (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders .... [ 24 ] Where a sentence under two years is sought, a CSO is an available sentence. In such cases, a sentencing court is required to apply the criteria set out in s. 742.1 of the Code : 742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under

section 742.3, if (

a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2; (

b) the offence is not an offence punishable by a minimum term of imprisonment; …. Sentencing Case Law [ 25 ] The Crown relies on the following cases in support of its sentencing position: R. v. Chen , 2021 ABCA 382 ; R. v. Geick , February, Alta QB 190263855Q2 February 18, 2022; R. v. Helfer , 2014 OJ No. 2984 ; R. v. Miller , 2020 ABPC 92 ; R. v. Morgan , ABPC 170717573P1 2 July 2019; R. v. Gartner , 2019 BCPC 307 ; R. v. Tremblay , 2012 BCPC 410 ; and R. v. SEA , 2015 ABCA 182 .

[26] The defence refers the Court to the following cases: R. v. Priest, (ON CA), 1996 CanLII1381 (ONCA); R. v.Aleck, 2021 BCPC 170; R. v. Huston, 2021 ABPC 108; R. v. Nguyen, 2021 BCPC 304; R. v. Mathes, 2016 BCPC 386; R. v. White, 2015BCPC 476; R. v. Rowe, 2015 ONCJ 596; R. v. Seidel, 2014 BCPC 230 , 2014 BCPC 0230; R. v. Steiner, 2014 BCPC 424; andR. v. Fawcett, 2012 BCPC 421 , 2012 BCPC 0421. Review of Sentencing Principles and Case Law [27] Sentencing is a highly individualized and nuanced process.

The underpinning of all sentences is the fundamental principle ofproportionality under s. 718.1 of the Criminal Code. A proportionate sentence is one that weighs the gravity or seriousness of the offenceand the degree of responsibility or moral fault of the offender in committing it, as discerned from the particular and unique circumstancesof the case or the offender: R. v. Lacasse, 2015 SCC 64, at paragraph 53; R. v.

Parranto, 2021 SCC 46, at paragraph 12. [28] A proportionate sentence denounces the unlawful conduct and the harm caused to victims or to the community, deters anoffender and other persons from committing similar offences, assists in the offender's rehabilitation, and promotes in them a sense ofresponsibility and acknowledgment of the harm caused by their conduct. [29] In the search for a proportionate sentence, the sentencing judge must take into account any mitigating and aggravating factorsand impose a sentence that is on par with similar offences committed by similarly situated offenders.

A judge must exercise restraint insentencing and give due consideration to sanctions less restrictive than imprisonment where appropriate. [30] Ranges of sentence for a category or type of offence are helpful in establishing guidelines within which a sentence might besituated. Sentence ranges provide the parameters under which an individualized and proportionate sentence can be determined but suchranges are not prescriptive, merely advisory. [31] The range of sentence for offences of animal cruelty under s. 445.1(1) (

a) has been the subject of recent appellate review in R. v.Chen (ABCA), pronounced on November 25, 2021. Chen holds that sentences imposed for offences involving the wilful infliction ofunnecessary pain and suffering on domestic animals have failed to reflect the serious gravity of such conduct.

This has led to an“enforcement gap” with an inconsistency in the “application of sentencing principles”, resulting in sentences not reflective ofParliament’s objective in increasing the maximum available sentence of imprisonment: Chen, at paras. 20-25. [32] In the result, the Court in Chen overturned a community based CSO imposed after appeal from sentence and reinstated a sentenceof three months’ imprisonment imposed by the primary sentencing judge. [33] R. v. Chen (ABCA) remains the leading appellate authority in sentencing animal cruelty offenders.

Although Chen is not bindingon sentencing courts in British Columbia, I accept and find that the court’s reasoning in Chen is highly persuasive.

It traces thelegislative history of animal cruelty as a crime, and affirms that animal abuse and cruelty is an egregious form of violence towards“sentient beings that experience pain and suffering” and who under law “must be treated as living victims and not chattels”: Chen, atparas. 27, 39. [34] Chen states that brutal and prolonged assaults on domestic animals, including infliction of wanton pain and suffering, is criminalconduct that reflects a high degree of moral blameworthiness and calls for a commensurately proportionate and denunciatory sentence. [35] In addition to Chen, the Crown relies on R. v.

Miller which involved the wounding and battering of a kitten belonging to theoffender’s girlfriend. The kitten had to be euthanized. Miller received a jail sentence of 12 months and 2 years’ probation. R. v. SEA wasa case of extremely severe violence to a cat, and the offender received 20 months’ jail, and 3 years’ probation. The unreported Albertadecision of R. v. Geick related to the vicious beating of two dogs over a prolonged period of time, causing each to suffer fatal trauma.Geick was sentenced to 48 months’ imprisonment, reduced to 36 months under the totality principle.

In Helfer, the offender received twoyears’ jail for repeatedly hitting the family dog on the head with a shovel and rake and dumping the injured animal in a dumpster. It hadlife threatening injuries but survived.

The B.C. animal cruelty cases of Gartner and Tremblay resulted in jail sentences of 8 months and 6months, respectively, and each had prior criminal convictions on their record. [36] The Crown cases suggest a range of sentence of jail of between 3 months and up to 36 months, with orders prohibiting animalownership for up to the offender’s lifetime. [37] The defence cases suggest a lower range of sentence, from a conditional discharge (R. v. Mathes) or a suspended sentence (R. v.Aleck, R. v.

Steiner) at the lower end and conditional sentences of imprisonment of varying durations at the higher end. [38] In the Mathes case, a conditional discharge was granted for a first time offender who bludgeoned an adopted dog to death after itbit the owner’s daughter. The court accepted that there was a degree of provocation which attenuated the moral gravity of the offendingin granting a discharge. [39] In R. v. Aleck, a 39 year old First Nations offender received a suspended sentence and 16 months’ probation for striking a kittenthree times in the head with a “selfie stick”, rendering it lifeless.

The violence in Aleck was found to be of a lesser duration andmagnitude than the comparator cases put before the sentencing judge. There were significant Gladue factors of concern whichcollectively informed the sentencing decision. [40] The offender in Steiner threw a cat against the wall, and fractured its leg. He received a suspended sentence and 18 months’probation. [41] In Seidel, a 29 year old defendant without a prior record strangled his cat to death after becoming extremely frustrated with iturinating and defecating in the family home.

He received a nine month conditional sentence of imprisonment. [42] In Huston, the 65 year old offender without a prior criminal record struck a cat on the head with a bat and caused its death. Hereceived a 12 month conditional sentence order and 18 months’ probation.

[ 43 ] In Nguyen , the 25 year old male harmed a cat by kicking and stomping on it for about 11 minutes. This occurred in circumstances described as prolonged, painful and terrifying and resulted in the cat being euthanized. Nguyen received a nine month conditional sentence order. [ 44 ] In White , the offender struck a dog viciously and repeatedly with a metal bat. The dog was removed from the offender’s custody, treated, and eventually recovered from its injuries. The dog was placed in a new home. The offender received a six month sentence of imprisonment.

Application of the Sentencing Principles [ 45 ] In examining the seriousness of the offence and degree of responsibility of offender under

section 718.1 , I find that Mr Zhu inflicted serious injury to a five pound kitten, an animal who was wholly dependent and reliant on him for care, nurturing and protection. Mr Zhu’s actions were harmful in various and multiple ways. He kicked it, swung it in the air, and repeatedly struck its body against the ground. He prodded and manipulated the injured kitten, which was incapacitated by its injuries, and moved it from fence to fence and onto the ground. He stepped on it.

His conduct caused pain, fear and distress to the animal and can fairly be described as torturous. [ 46 ] The injuries diagnosed by the veterinarian were blood in the oral cavity, fracture of the right humerus, fracture of right tibia and fibula, fractured pelvis and hip, wound on its nasal philtrum, pneumothorax and suspected pulmonary contusions. The kitten was so physically damaged that it had to be put down. It lost its life directly as result of Mr Zhu’s violence and cruelty. [ 47 ] The time over which the kitten was brutalized was about 20 to 25 minutes, with stops and starts.

Its suffering came to an end only because a neighbour reported the assault to the police who took the kitten for medical care and euthanization. [ 48 ] In my judgment, the offending by Mr Zhu consisted of very cruel conduct towards a defenceless animal recently brought into his care. It included multiple acts of assault, resulting in very severe trauma. The degree of violence is highly concerning.

The moral gravity of his offending is high. [ 49 ] The degree of responsibility of Mr Zhu is significant in that he continued to attack the animal notwithstanding that its cries of pain, significant enough to awaken a neighbour, were a clear signal that it was suffering. I do not accept that disciplining an animal through violence for its natural misbehaviour is justifiable. Nor do I accept that Mr Zhu’s inexperience as a pet owner, coupled with the implied toleration of abuse of domesticated animals in his culture of origin, reduces his moral fault.

As noted in Chen , at para. 46 , “the law in Canada applies equally to all in Canada” regardless of their cultural roots. [ 50 ] Mr Zhu’s moral fault is however attenuated to some extent by the social isolation and mental health pressures he was facing, resulting in his emotional maladjustment at the time. [ 51 ] The aggravating factors are: • The victim was a defenceless animal, very young and very small in size.

It was unfortunately subject to multiple forms of trauma over a period of at least 20 minutes. • The kitten was reliant on Mr Zhu for its care and nurturance, and he was in a position of trust towards it which he breached by causing it unnecessary pain and suffering. • The degree of force was significant, including smacking the body against the ground and striking the head of the animal, stepping on it, all the while appearing to be apparently callous to its suffering. • The animal was so injured that it had to be euthanized. [ 52 ] The mitigating factors are: • Mr Zhu is a youthful, first offender.

He has no prior criminal record, and has not breached a condition of bail. • He gave a full and frank account of the events to the police after his arrest and was cooperative with their enquiries. His statement was relied on by the Crown during sentencing submissions to support the Crown case. • Mr Zhu entered an early guilty plea. This has spared the cost and expense of a hearing, and the need to call lay and expert witnesses. • He has shown insight into his offending behaviour. He has apologized for his wrongful conduct.

He has contributed financially to an animal charity. • Mr Zhu committed the offence whilst suffering from a deterioration in his mental health. He has since recovered from this period of maladjustment. • He has undertaken and completed his post-secondary education since the offence. [ 53 ] Mr Zhu contends that negative publicity in this case is a collateral consequence and a relevant factor in mitigation of sentence. In R. v.

Suter , 2018 SCC 34 , the Supreme Court of Canada defined a collateral consequence to be “any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence that impacts the offender.” The offender in Suter was beset by vigilantes and maimed. He suffered permanent physical injury and psychological trauma from vigilante action. The violence and wounding were factors relevant to sentencing. [ 54 ] Mr Zhu states that he is concerned about personal safety arising from public comments appended to an online media report summarizing the sentencing hearing.

He refers to one

article that attracted close to 900 on-line comments, a number of which were of a vitriolic nature.

[ 55 ] Animal abuse cases do attract extensive media attention, and this case is not out of the norm for the level of interest or the extent of publicity it has generated. On-line public expression responding to news media reports is a very common occurrence and such discourse is part of a free and democratic society. [ 56 ] Although the ad hominem attacks on Mr Zhu are to be deplored, there is no evidence of any actual, objectively measurable adverse consequences on Mr Zhu, such as loss of current employment or forced change of residence caused by verifiable threats to his personal safety.

I find that the negative effects of publicity arising from this case are not so unique, extraordinary or debilitating to warrant an ameliorative impact on sentence. [ 57 ] In balancing the purpose, principles and objectives of sentencing, and in seeking a sentence on par with previously decided cases, I am drawn to the facts in R. v Chen for similarity as to the offender and the offence. Both Mr Chen and Mr Zhu are youthful first offenders in their 20s who seriously injured a young animal in their care. Each plead guilty. Each cooperated with police, and gave a statement admitting guilt.

The period over which the harm occurred in both is of a similar duration, about 20 minutes. Each alleged that their animal’s misbehaviour caused them to overreact. Mr Chen’s puppy had signs of previous healed trauma, an additional aggravating factor, but it recovered from its newer injuries. Mr Zhu’s kitten was too severely injured and was euthanized. [ 58 ] The Alberta Court of Appeal overturned a CSO for Mr Chen because a non-custodial sentence did not reflect the seriousness of the offence or Mr Chen’s moral fault.

It re-imposed a jail sentence of 3 months. [ 59 ] Many of the defence cases submitted on Mr Zhu’s sentencing, in which CSO’s were imposed, were decided before the Chen appellate decision was released. Chen underscores that where the harm to the animal is inflicted in a vicious and prolonged manner, resulting in grievous injuries or death, a sentence other than imprisonment is unlikely to be fit, absent exceptional circumstances. [ 60 ] Chen affirms Parliament’s direction that courts re-evaluate punishment for crimes of animal cruelty.

The analysis and guidance in Chen changes the sentencing landscape in animal cruelty offences such that previous sentencing decisions have reduced precedential value for purposes of assessing proportionality and parity. [ 61 ] Similar to Chen , the gravity of the offending by Mr Zhu consisted of very cruel conduct towards a defenceless animal recently brought into his care.

His offending included multiple acts of assault, resulting in very severe trauma, and done with a degree of violence that is highly concerning. [ 62 ] The moral gravity of his offending is high, although attenuated to some slight extent by the isolation and mental health pressures he was facing, resulting in maladjustment at the time. [ 63 ] I conclude that the seriousness of offending in this case requires a denunciatory and deterrent sentence which cannot be met by a community based disposition of a CSO under s. 742.1 of the Criminal Code , even with strict conditions.

I accept that there is no statutory minimum sentence of imprisonment and the sentence sought by the Crown is under two years.

Moreover, permitting the offender to serve a sentence in the community would not endanger the safety of the community. [ 64 ] What is problematic, however, is that a community-based sentence would not be consistent with the fundamental purpose and principles of sentencing, which require that the criminal law impose an adequately proportionate and deterrent sanction to communicate society’s denunciation of those who wilfully harm vulnerable and sentient creatures entrusted to human care. [ 65 ] After weighing and balancing the sentencing criteria, I conclude that a jail sentence properly reflects the nature and extent of violence in this case.

However, a six month jail sentence sought by the Crown does not give due weight to the mitigating factors including a guilty plea, sincere remorse, and full and frank cooperation with police.

Apart from Chen , I found the Crown cases to have more aggravating features than in this case, such as prior convictions, or the use of knives, objects or implements to cause harm, or the use of violence against pets to target intimate partners or family. [ 66 ] For a first time offender facing incarceration, restraint calls for a sentence that does not impede the offender’s reintegration and rehabilitation into society. [ 67 ] In my judgment, having regard to the purpose, objectives and principles of sentencing under s. 718 through to s. 718.2 of the Criminal Code , a fit sentence for Mr Zhu is imprisonment of four months.

A probation order is not required for Mr Zhu’s rehabilitation and is not needed for the safety of the public given the forensic opinion of Dr Meldrum filed in this case. Protection of animals can be addressed by a prohibition order. [ 68 ] Accordingly, under s. 447.1 (1) of the Criminal Code , Mr Zhu is prohibited from owning, having custody or control of, or residing in the same premises as an animal or bird for a period of 25 years. [ 69 ] I impose a victim fine surcharge of $100 payable within 60 days of Mr Zhu’s release from custody. ____________________________ The Honourable Judge H.

Dhillon Provincial Court of British Columbia