R. v. McKay, 2012 BCPC 579

Citation: R. v. McKay 2012 BCPC 579 Date: 20120127 File No: 4076-1 Registry: Clearwater IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROY JEREMY McKAY REASONS FOR SENTENCE OF THE HONOURABLE JUDGE S. DONEGAN Counsel for the Crown: W. Burrows Appearing on his own behalf: R. McKay Place of Hearing: Kamloops , B.C. Date of Hearing: January 27, 2012 Date of Judgment: January 27, 2012 Introduction [ 1 ] THE COURT: Roy Jeremy McKay entered a guilty plea to Count 1 of Information 4076-1 on June 21, 2011, the day of his trial. He is now before me for sentencing.

The Crown proceeded by way of indictment in this matter. [ 2 ] Sentencing was adjourned to August 23, 2011, and then from time to time after that. Once Mr. McKay did not attend court, then

he had to consult with counsel, then he applied unsuccessfully to strike his plea, and then ultimately had his sentencing hearing in Clearwater before me day before yesterday, that is January 25th, 2012. [ 3 ] Mr. McKay admitted to causing, or wilfully permitting to be caused, pain and suffering to an animal, specifically his dog, during the dates alleged, but disagreed with some of the material facts alleged by the Crown. Circumstances of the Offence – Findings of Fact [ 4 ] At the sentencing hearing on this past Wednesday, the Crown called two witnesses. The former spouse of Mr.

McKay, Trish Archibald, provided evidence by way of affidavit. The two witnesses that were called were the investigating officer who found the dog and the veterinarian, Dr. Matthews, who examined the deceased dog after it was located by the RCMP. Neither Crown witness was cross-examined by Mr. McKay. [ 5 ] Mr. McKay chose to testify. He testified that when his spouse left him in January of 2009, he kept their dog who was an ordinarily fairly thin dog. He testified that his dog went missing for about three weeks or so and felt at the time that someone had taken his dog from its outdoor doghouse, off of its chain.

He told his former spouse the dog went missing, but, despite believing that his dog had been stolen, did not call authorities. [ 6 ] Mr. McKay testified that the dog mysteriously returned to the doghouse and re-attached to its chain. He testified the dog was emaciated and perhaps sick when it was returned. He did not take the dog to the vet, call the authorities, tell his ex-spouse, or call anyone. He testified that he tried to feed the dog unsuccessfully for three or four days and it died. Mr.

McKay indicated that he had been drinking heavily throughout this timeframe and did not know what to do. [ 7 ] A week passed until the police attended, responding to an anonymous tip. Police located the dog, deceased, in its doghouse, outside in the cold weather. Under cross-examination, Mr. McKay could offer no reasonable explanation as to why he did not phone anyone for assistance, and only offered that he did not have a telephone with him at the time and had been drinking throughout that timeframe. [ 8 ] Mr. McKay contradicted himself when testifying about feeding the dog.

Initially, he testified that he always fed the dog inside the house because he was afraid other animals would get at the food outside. However, under cross-examination, he said that he fed the dog outside occasionally. [ 9 ] Mr. McKay further admitted to testifying in a family proceeding that the dog had "escaped" from its collar. This is, I find, directly contradicts his evidence in this proceeding. [ 10 ] I find the evidence of Mr. McKay to be unworthy of belief. Not only was his evidence contradictory, it defies common sense.

He would have the court believe that an unknown person, perhaps, he speculated, his ex-spouse's new boyfriend, stole his dog off of its chain, out of its kennel and out of his yard, kept the dog for a period of three weeks or so, starved it, and then mysteriously returned it, put it back in the doghouse and re-attached it to its chain in a near-death state. [ 11 ] Mr. McKay provided a multitude of excuses for his illogical behaviour following what he claimed to be the return of his dog, none of which are, in my view, believable.

He offered that he had no phone to call anyone, that he had been drinking excessively, and that he did not want to “stress out” his ex-spouse. In short, I do not believe Mr. McKay's version of events, nor am I left in any reasonable doubt by it. [ 12 ] I find the Crown has proven beyond a reasonable doubt the following facts. [ 13 ] Trish Archibald began living with Mr. McKay in 2001. They separated permanently in January 2009. At the time of their separation, Mr. McKay was living at 536 Clearwater Village Road in Clearwater, British Columbia, where they had been living together as a couple.

He continued to live there until March 14, 2009, when their dog was found deceased. [ 14 ] When Ms. Archibald left Mr. McKay in January of 2009, the family dog, Sasha (a lab-pit bull cross), had to remain in the family home with Mr. McKay because the residence that Ms. Archibald moved out to did not allow dogs. When Ms. Archibald last saw Sasha in early January of 2009, she was healthy and well nourished. [ 15 ] While Sasha was in the sole care and custody of Mr. McKay, she slowly and painfully starved to death.

When found frozen in her doghouse a week after her death, Sasha weighed approximately one-half of her normal weight. She had no fat whatsoever left in her body, suggesting to the veterinarian Dr. Matthews that the pet had starved to death over a period of some four to six weeks. [ 16 ] Dr. Matthews could not be more precise about this timeframe without knowing certain things such as the fitness of the dog prior to her death, the length of her hair coat prior to her death, and the kind of outside protection that she had while she starved. [ 17 ] Dr.

Matthews is a veterinarian with his extensive experience, including dealing with a multitude of starving dogs in the aftermath of Hurricane Katrina. He found this to be the most serious case of starvation that he had ever come across in all of his years. [ 18 ] Severe muscle wasting was present. Muscle mass, he noted, was greatly reduced everywhere and, most notably, over her shoulders, back, and pelvis.

There was no sign of any food whatsoever in his examination of the internal contents of the dog's digestive system and, as I say, he found that she had no body fat anywhere, not on any of her internal organs or even retro bulbar fat in her eyeballs. [ 19 ] In short, Mr. McKay left this family pet, over a period of four to eight weeks, to starve to death. Whether he did this out of spite toward his ex-spouse or whether he did this as a result of neglect and uncaring is unknown to me, but what I do know is that this dog must have suffered a horribly slow and painful death. Position of the Parties

[20] The Crown seeks a sentence of 90 days in jail and a 10-year prohibition from owning or possessing animals pursuant to s. 447.1of the Criminal Code, R.S.C., 1985, c. C-46. Mr. McKay submits that a fine and community work service hours would be appropriate.He agrees to a 10-year prohibition from possessing or owning animals. Circumstances of the Offender [21] Mr. McKay is 32 years of age. He currently works full-time at Wells Gray Service Centre in Clearwater. He does some carpentrywork in the community on the side. He hopes to attend school shortly in order to complete his carpentry apprenticeship.

He has aconstruction job lined up this spring and hopes to go up north to work in camp to earn a good income. [22] Mr. McKay is currently in a relationship that is suffering its own strains. He and the woman with whom he is believed to havehad a one year old child, are currently involved in family court proceedings. Mr. McKay is contesting or, at least questioning, the child'spaternity. [23] Mr. McKay has a criminal record. It is dated. He was convicted of assault causing bodily harm and theft under $5,000 in 2000.The passing of sentence was suspended and he was placed on probation for a period of 18 months.

Analysis [24] The Crown has provided me with two case authorities in support of its position: R. v. Powell, 2011 BCPC 524 , 2011B.C.P.C. 524, and R. v. Connors, 2011 BCPC 24 , 2011 B.C.P.C. 24. [25] In Powell, the offender allowed an animal, a horse, to starve to death while in his care.

It is relatively similar to the case at bar.After considering the principles of sentencing, Judge Mrozinski imposed a two-year prohibition banning the offender from owning orpossessing animals and sentenced him to three months in jail. [26] The Connors decision was provided not for its factual similarity but for Judge Quantz's careful and extensive review of therelevant case law in this area.

Judge Quantz first discussed the purpose and objectives of sentencing at paragraphs 17 – 20: [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." [27] Turning now to the aggravating and mitigating circumstances in this case. [28] The mitigating circumstances include Mr.

McKay's relatively young age. He is in his early 30s. As well, he is currentlyemployed and has good prospects for future employment. This bodes well for his future, as well as his ability to support the person whohe believes is likely his child. He has a dated criminal history. [29] I give Mr. McKay's guilty plea very little weight as a mitigating factor in this case.

It came late in the day, on the day of trial withall Crown witnesses in attendance, two of whom were required to attend again to testify at the sentencing hearing several months later. [30] The aggravating circumstances include the extreme callous disregard Mr. McKay showed for the health and well-being of thisyoung dog. The protracted nature of her suffering, day after day for weeks on end, shows a level of callousness not often seen. [31] Judge Quantz, in Connors, reviewed the relevant case authorities extensively at paragraph 22 through 36.

I do not propose toquote all of these authorities here, but there are a few cases I would like to highlight for their similarity. [32] In R. v. Jones, [1997] O.J. No. 1288, the offender received a 45-day sentence followed by 12 months' probation. Mr. Jones was ayouthful offender with no criminal record. He choked, kicked, dragged, punched, and threw a dog, causing it to suffer a broken leg. Thedog was treated and remained in a cast for several weeks. That offender did not accept responsibility. [33] In R. v. Wicker, 2007 ABPC 129 , 2007 A.B.P.C. 129, the offender entered a timely guilty plea to abusing a cat.

He hadno prior criminal record, and received a 90-day sentence, to be served intermittently. [34] In R. v. Stuart, File No. 196079-1, Vancouver Registry, a decision of the Provincial Court of British Columbia, the offender pledguilty to killing a 15-week-old pit bull that was experiencing behavioural problems. Mr. Stuart was found to have been under theinfluence of a medication that affected his judgment at the time of his offence. The dog bit him and he responded by striking him with ahammer, killing him. Mr.

Stuart had a dated conviction for assault and was sentenced to roughly two months in custody and $1,000 finefor this crime. [35] In R. v. Bastarache, File No. 82388-1, Kamloops Registry, a decision of the Provincial Court of British Columbia, the offenderabused his dog for approximately a half an hour. Fortunately, the dog did not suffer serious injury. The court imposed a 30-day jail

sentence. [ 36 ] These decisions all predate the changes to the legislation in this area, where the maximum penalties were increased. As Judge Quantz notes at paragraph 35, there is a fairly extensive decision, R. v. Munroe , 2010 CarswellOnt 3983 where the first time offender received a 12-month jail sentence. This was a decision rendered after the changes in the legislation. Decision [ 37 ] First, the Crown seeks an order of prohibition pursuant to s. 447.11 of the Criminal Code for a period of 10 years. Mr. McKay does not oppose this.

Given the level of prolonged suffering of this dog as a result of the wilful neglect of Mr. McKay, I am satisfied Mr. McKay should be prohibited from owning, having the custody of, or control of, or from residing in the same premises as an animal or bird for a period of 10 years and I make that order. [ 38 ] This brings me to determine a proportionate sentence.

The comments of Judge Quantz in Connors at paragraphs 40 – 42 are apt: [40] The Criminal Code makes it clear that the wilful infliction of unnecessary pain and suffering on animals violates one of the basic tenants of our society and is deserving of punishment. It is also conduct which most members of our society find repugnant and morally reprehensible. [41] The objectives of sentence to be emphasized in this case are denunciation and deterrence without losing sight of the offender's prospects for rehabilitation. [42] As emphasized by our Court of Appeal in R. v. Bhalru ...

"Denunciation has both punitive and exhortative elements. It satisfies a community's desire and need to condemn certain conduct, and also plays a more positive role in communicating and reinforcing society’s shared set of values as described in the Criminal Code ." [ 39 ] I agree. In my view, the gravity of the offence committed by Mr. McKay and his high level of moral blameworthiness require that he receive a custodial sentence.

Given this decision, I must determine whether or not a conditional sentence order is appropriate or, in other words, whether the sentence can be served in the community. [ 40 ] I have given careful consideration to this, Mr. McKay. I have concluded that in light of the gravity of the offence, the level and duration of the suffering of this young animal, and your high degree of moral blameworthiness, a conditional sentence order would not meet the objectives of denunciation and deterrence. [ 41 ] The Crown seeks 90 days' incarceration.

In the circumstances of this case, the least restrictive sentence which reflects the purpose and objectives of sentencing is 90 days' imprisonment, and that is what I order. [ 42 ] Mr. McKay, Crown counsel indicated that he would not be opposed to your serving a custodial sentence on an intermittent basis, which means on weekends. You did not make any submissions about that, but I will allow you to do that now. Is that something that you would like me to consider or would you prefer to serve your sentence fully at this time? [ 43 ] THE ACCUSED: I would prefer to do it intermittent.

I did not realize that was an option, Your Honour. [ 44 ] THE COURT: It is and, in fact, that is what the judge in Powell ordered - the offender could serve that sentence on an intermittent basis. When I consider the appropriateness of such an order, I consider the fact that you are employed, working full-time during the week at a stable job. I consider that you are currently supporting a child and perhaps a spouse, as well. [ 45 ] I will allow you to serve this sentence intermittently.

You are to serve 90 days’ jail intermittently at the RCMP lockup cells at Clearwater, British Columbia, on consecutive three-day weekends commencing at 6:00 p.m. on Friday, February 3, 2012, through to 4:00 p.m. on Sunday, February 5, 2012, and each weekend thereafter until your sentence is served in full. [ 46 ] While you are serving your intermittent jail sentence, you will be bound by a probation order.

There are certain mandatory conditions associated with that order. [ 47 ] You shall keep the peace and be of good behaviour. [ 48 ] You shall appear before the court when required to do so by the court. [ 49 ] You shall notify the court in advance of any change of name or address and promptly notify the court of any change of employment or occupation. [ 50 ] On each occasion, when a part of the intermittent jail sentence is to be served, you shall arrive at the Clearwater RCMP detachment on time and in an entirely sober condition. [ 51 ] Do you understand those conditions? [ 52 ] THE ACCUSED: Yes, Your Honour. [ 53 ] THE COURT: All right.

There will be a victim fine surcharge that you will have to pay, as well. [Discussion re: time to pay] [ 54 ] I will give you two months to pay the victim fine surcharge, then. [ 55 ] THE COURT: Anything that I have overlooked? [ 56 ] MR. BURROWS: No, I do not think so. I am directing a stay of proceedings on Count 2 if that has not already been done –

[ 57 ] THE COURT: All right. [ 58 ] MR. BURROWS: -- and Mr. McKay should be directed to the registry to sign the order. [ 59 ] THE COURT: Mr. McKay, you will have to sign your prohibition and probation orders before you go today. [REASONS FOR SENTENCE CONCLUDED]