R. v. Timothy, 2020 BCPC 156

Citation: R. v. Timothy 2020 BCPC 156 Date: 20200714 File No: 42670-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KEVIN JOHN TIMOTHY ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MACCARTHY Crown Counsel appearing by teleconference: J. Blackman Defence Counsel appearing by teleconference: S. Knott Place of Hearing: Duncan , B.C. Date of Hearing and Judgment: July 14, 2020 Introduction [ 1 ] THE COURT: Kevin John Timothy has entered a guilty plea to an offence under the Prevention of Cruelty to Animals Act .

The allegation to which he has entered that guilty plea is that from the 30 of April 2019 to the 1 day of May 2019, inclusive, that he, at or near Penelakut Island, British Columbia, being a person responsible for an animal, namely a dog, did cause or permit the animal to be or to continue to be in distress, contrary to s. 24(1) of the Prevention of Cruelty to Animals Act RSBC 1996,

Chapter 372 .

[ 2 ] Mr. Timothy (hereinafter called the “Accused”) is before this court for the purposes of being sentenced on this offence to which he has entered his guilty plea. Facts [ 3 ] Crown has outlined the circumstances with respect to this particular offence. No issue is taken by Defence with Crown's recitation of the circumstances, which I accept as the facts in this matter. [ 4 ] In brief

summary, the events took place on Penelakut Island, which is a First Nation’s reserve island, located off the east coast of Vancouver Island and is accessible by daily ferry service. [ 5 ] A report of an animal being in distress was received by the Coastal Animal Control Service, in the early hours of May 1, 2019. That resulted in the dispatch of an animal control officer, David Allie, who arrived on Penelakut Island, later in the day on May 1, 2019. [ 6 ] Upon arriving on Penelakut Island he was directed to the location where the animal in question had been found.

The dog was in an extremely poor health condition, with a clothesline tied around its neck and deeply embedded into the neck. The dog had an extremely swollen head. The noose around its neck had cut deeply into the neck, and it required the use of bolt cutters in order to sever and remove the noose from around the dog's neck. That revealed a deep wound with the trachea being exposed; a subsequent observation made by the treating veterinarians was that it appeared that the noose had cut into the jugular vein of the dog.

There was a significant smell of infection caused by infestation of maggots in the wound. [ 7 ] The dog was taken off of Penelakut Island by the animal control officer and taken to a veterinarian clinic in Duncan, British Columbia. The diagnosis made by the veterinarians was that the dog was in critical distress and had no better than a 50 percent chance of survival. Therefore the dog appeared to have its life threatened, and it was in obvious pain and suffering.

Somewhat miraculously, the dog actually did make a recovery and was subsequently adopted out. [ 8 ] An investigation was conducted by the Society for the Prevention of Cruelty to Animals (SPCA). As a result of the investigation that took place during the early summer of 2019, various individuals provided information to the SPCA, and a statement was taken from the Accused around July 11, 2019. In the course of providing that statement, the Accused confirmed that he had the care and control of the dog, but he was not the owner of the dog.

The indication was that the dog was actually owned by his son. [ 9 ] The second notable feature obtained through the Accused’s statement was that he had previously found the dog near his residence, wrapped around a tree by way of the clothesline wire and thereby determined that the dog had significant injuries. As a result of his observations he concluded that he could not afford to have the animal attended to by a veterinarian due to his own impecunious state. Accordingly, he indicated that he took steps to have a neighbouring relative take the dog out to have it shot.

But prior to making those arrangements with neighbouring relative for the disposal of the dog, the Accused took the dog into the woods and tethered it. It is important to understand that this proposed plan for euthanizing the dog, by way of shooting it, was one that the Accused could not legally do himself, because he was subject to a lifetime firearms prohibition. However, as I understand it, the neighbouring relative had a licensed firearm and was in a position to carry out the task.

Unfortunately, that task was not performed by the neighbouring relative and the dog remained tethered to the tree in the woods. [ 10 ] Crown accepts the evidence that it was the Accused's understanding that the neighbouring relative had agreed to euthanize the dog by way of shooting it, notwithstanding that such an agreement was denied by the neighbouring relative. [ 11 ] However, it is admitted by the Accused that he failed in his responsibility for the dog and he was negligent by never following up with the neighbouring relative to determine that the dog had actually been put down in a timely manner.

Therefore, the animal was left unattended for a period of time while remaining tethered in the bushes.

During that period the dog was not being attended to, nor cared for by the Accused , and it continued to suffer as a result of its previous injuries. [ 12 ] Thus, for the purposes of this sentencing the Crown does accept (as agreed to by Defence) that the Accused did ask the neighbouring relative to shoot the animal and the Accused understood that that neighbouring relative had agreed to do so but then never completed the task. [ 13 ] The animal was subsequently found by another Penelakut Island family, who learned of the dog being tethered in the bushes; they went out to find the animal, and found it in significant distress, tethered very tightly around the neck, with the clothesline noose cutting into the neck.

They provided some water and a blanket for the dog; as I understand it, they then placed a call to report the animal's distress to the authorities. Circumstances of the Accused [ 14 ] The Accused is 50 years of age. He is indigenous and he has been residing on Penelakut Island since age three. However, he is not a member of the Penelakut Band and does not have the benefits of band membership, nor does he receive any financial benefits from the band. His home band is actually located up on the Sunshine Coast near Powell River, British Columbia.

The Accused has been on Penelakut Island since the age of three after his mother and grandfather perished in a fire. Since that time, he has lived with an aunt and was raised by his aunt on Penelakut. He now is responsible for her care. [ 15 ] To add to the difficult background of the Accused, he has suffered significantly by witnessing what he described as an inordinate amount of death and suffering among his family members during his lifetime. He says by way of Defence submissions defence, and I accept, that this has had a very significant and long-lasting impact on him.

He has not been able to adequately grieve, nor to come to terms with the significant suffering that he has witnessed throughout his life. [ 16 ] His own personal suffering has also been significant. In September of 2018, prior to this offence, he and his family suffered a house fire. That fire has essentially left them living in very marginal, temporary housing since that date. He and his family, which includes seven children and two adults, reside in a one-bedroom house while they are still awaiting the renovations and reconstruction of

their original home on Penelakut Island. [ 17 ] As previously noted, it is significant that the Accused does not receive any benefits from the Penelakut Band due to the fact he is not a member and he does not have work opportunities with the band. His spouse of some 15 years, is a member of that band and she does receive some financial support from the band. The Accused and his spouse are the parents of some seven children, ranging in ages from one to 19 years. [ 18 ] As I understand it, their financial circumstances are dire.

The Accused has attempted to make a living as a carver, however, during the period of time since this particular offence became public, it has resulted in a loss of clients and commissions for his carving work. He has lost direct commissions as well as the opportunity to attend public markets both on Thetis Island, as well as in Sooke, in order to sell his carving wares. [ 19 ] This offence has also gained considerable notoriety on social media.

As indicated by Defence counsel, not only has the Accused suffered a significant backlash and been vilified in the court of public opinion, it has resulted in threats to his own family members and, in particular his children, who have been ostracized by people active in the social media community.

Those attacks have been extremely hurtful, and especially most recently when derogatory messages were posted about the Accused’s spouse and their newborn child. [ 20 ] Because of the general circumstances in which the Accused found himself preceding the time of this offence, and particularly because of the house fire, a practice developed whereby other members of the Penelakut community cared for the dog. Therefore the dog was informally shuttled between various houses and with no one taking any particular responsibility for it.

This adds to the context in which the offence occurred. [ 21 ] All of this is not to say that the Accused is attempting to minimize his responsibility in the commission of this offence. In fact, as noted above, he takes full responsibility for it.

I am told by defence counsel that the Accused tried to resolve this matter much earlier- on by way of a guilty plea, but the intervention of the COVID pandemic and the closure of the courts has delayed that disposition until today's date. [ 22 ] In addition to all of the aforementioned challenging personal factors and difficult circumstances of the Accused, it is noteworthy that since 1992, he has been extremely active in the cultural heritage and practices of the Penelakut First Nation. He has been embraced in that role, and he is one of the traditional hat-makers for cultural activities within the longhouse.

That is a function that he assumed back in 1992, from his late uncle who held that position of honour within the community. Aggravating and Mitigating Factors, Collateral Consequences and Gladue Factors [ 23 ] The aggravating factors in this case, of course, are the level of mistreatment of the animal and the significant injuries sustained by it. [ 24 ] The mitigating factors are the Accused’s guilty plea and cooperation with the investigation. There are also numerous Gladue factors that intertwine amongst the personal circumstances of the Accused and his family.

These include the significant impoverishment and other disadvantages that he and his family endure, and the huge distress and stresses caused by the loss of their home from the fire, as well as their resulting marginal living arrangements for a large family in such small temporary quarters. I am given to understand from the Accused's direct comments to the court, that there is no projected end or set date for the completion of the renovation and rehabilitation of their fire damaged original home.

It well could be into the fall or later, into early winter, before he and his family can return to their fire-damaged premises. The Statutory Provisions [ 25 ] The Prevention of Cruelty to Animals Act provisions that govern this offence are as follows.

Definitions 1(1) "person responsible", in relation to an animal, includes a person who (

a) owns an animal, (

b) has custody or control of an animal, or (

c) is an operator in relation to an animal;

(2) For the purposes of this Act, an animal is in distress if it is (

a) deprived of adequate food, water, shelter, ventilation, light, space, exercise, care or veterinary treatment, (a.1) kept in conditions that are unsanitary, (a.2) not protected from excessive heat or cold, (

b) injured, sick, in pain or suffering, or (

c) abused or neglected.

Part 2.1 - Standards of Care Duties of persons responsible for animals

9.1(1) A person responsible for an animal must care for the animal, including protecting the animal from circumstances that are likely to cause the animal to be in distress.

(2) A person responsible for an animal must not cause or permit the animal to be, or to continue to be, in distress. Offences 24(1) A person who contravenes

section 9.1, 9.2, 9.3, 23, 23.1, 23.2 or 23.3 commits an offence.

(3) If a person is convicted of an offence under subsection (1), a justice may, in addition to any other penalty that may be imposed for the offence, prohibit the person from owning or having custody or control of an animal for a period of time specified by the justice.

(4) A justice may make an order under subsection (3) on any terms the justice considers appropriate.

(5) A person who fails to comply with an order made under subsection (3) commits an offence.

(6) A proceeding for an offence under this Act may not be commenced in any court more than 3 years after the facts on which the proceeding is based first come to the knowledge of an authorized agent who is a special provincial constable under the Police Act . Penalties 24.1 A person who commits an offence under this Act is liable on conviction to a fine not exceeding $75,000 or to imprisonment for a term not exceeding 2 years, or to both.

Joint Sentencing Position [ 26 ] Crown and Defence agree that having regard to the whole of the circumstances for this offence, and taking into account the aggravating and mitigating circumstances and the collateral consequences described above, that a fit sentence in this matter would be a suspended sentence with a probation order of a duration of 18 months under the Offence Act .

The terms and conditions have been outlined in submissions, and I will provide those below in just a moment. [ 27 ] In addition, what is being sought is a lifetime prohibition imposed upon the Accused under s. 24(3) of the Prevention of Cruelty to Animals Act . That lifetime prohibition will be from the owning or having the custody or control of an animal during this lifetime period; not residing in a residence where such an animal is located; and also not being in the presence of an animal without being in the presence of a responsible adult.

The actual wording of this prohibition order has been outlined by Crown counsel in submissions and has been accepted by Defence, all in the presence of Mr. Timothy, by way of a telephone appearance.

Accordingly, the actual terms and conditions of the prohibition order will be prepared by Crown in a formal order, all as previously outlined during the course of submissions. [ 28 ] The probation order, which I will be imposing upon the Accused will be based upon the joint submissions, and the terms will be further outlining below. [ 29 ] Overall, the joint submission meets the requirements of the public interest tests as outlined in the Supreme Court of Canada's decision in R. v. Anthony-Cook, 2016 SCC 43 .

I am satisfied that given the whole of the circumstances in this case, that this is a fit sentence and a proper disposition of this matter. [ 30 ] In doing so, I am fully taking into account the personal circumstances of the Accused, both before the offence as well as subsequent to the offence, and what the Accused has undergone since committing the offence.

I am particularly mindful of the collateral circumstances of the significant public shaming and humiliation that the Accused has endured as a result of this offence, and the financial loss that has resulted to him from being unable to maintain his carving commissions and sales. Conclusion [ 31 ] Accordingly, the disposition with respect to this matter will be a suspended sentence and that suspended sentence will be accompanied by the 18-month probation order which, as I indicated, will be made pursuant to the Offence Act of British Columbia .

For expediency, the terms and conditions that I adopt will be from the criminal probation pick list numbers. [ 32 ] 2001. You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court. You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the officer of any change of employment or occupation. [ 33 ] The next provision will be a reporting condition, 2013.

You must report by telephone to a probation officer at the Duncan Community Corrections Office, being the address on Boundary Road, Duncan, British Columbia, by telephone, which telephone number will be provided to you. I am going to make that reporting by 12 noon tomorrow, being Wednesday, July 15, 2020. After that, you must report as directed and in the manner required by your probation officer. [ 34 ] The next condition is 2202. When first reporting to your probation officer, you must provide them with the address where you live and your telephone number.

You must not change your address or telephone number without first notifying your probation officer in advance of any change. [ 35 ] I am just going to pause for a moment. Mr. Timothy, I take it you do have access to a telephone number. Is that correct? [ 36 ] THE ACCUSED (via teleconference): Yes. [ 37 ] THE COURT: Thank you. That is a landline on Penelakut, is it?

[ 38 ] THE ACCUSED: Yes, it is. It's our [indiscernible/teleconference] phone, right now. [ 39 ] THE COURT: Thank you very much. [ 40 ] The next condition will be the community work service provision, 2509. You must complete 100 hours of community work under the direction of your probation officer. Your community work may include work that you perform for the Penelakut Band or in connection with your cultural duties and responsibilities within the Penelakut Band and the longhouse tradition.

Your community work service must be completed within one year of the date of this order. [ 41 ] In addition, there will be the s. 24(3) prohibition order on the specific terms and conditions as outlined by Crown counsel during submissions and which were read into the record. Since there is no fine, no victim fine surcharge will apply. If any such victim fine surcharge were to be applicable and if this court had the jurisdiction to waive that fine, it would have done so, having specific regard to the very tenuous financial position and impoverishment that the Accused and his family are enduring. [ 42 ] Mr.

Timothy, you have heard me outline all of the terms and conditions of your probation order, is that correct? [ 43 ] THE ACCUSED: Yes. [ 44 ] THE COURT: You understand what those conditions are? [ 45 ] THE ACCUSED: Yes, I do. [ 46 ] THE COURT: You understand that you must and you are agreeing to abide by those conditions, is that correct? [ 47 ] THE ACCUSED: Yes, I do. [ 48 ] THE COURT: You understand that if you were to fail to abide by those conditions, you could be charged for breaching those conditions and be forced to come back before the court because of that breach? [ 49 ] THE ACCUSED: Yes. [ 50 ] THE COURT: Similarly, you have heard Crown counsel outline the terms of the prohibition order with respect to owning or having control of an animal, residing in a residence with an animal, or being in the presence of an animal, except in the presence of a responsible adult, you have heard those? [ 51 ] THE ACCUSED: Yes. [ 52 ] THE COURT: You agree to abide by all those terms and conditions? [ 53 ] THE ACCUSED: Yes. [ 54 ] THE COURT: You understand that if you fail to abide by those terms and conditions, you could face further charges? [ 55 ] THE ACCUSED: Yes. [ 56 ] THE COURT: Thank you. [ 57 ] Are both Crown and defence satisfied that we have dealt appropriately with Mr.

Timothy's acknowledgment on the record in order to waive him having to sign any form of those documents, unless he can do so at some later point at the direction of either his probation officer or at the direction of the court? [ 58 ] MR. BLACKMAN: It is John Blackman for the Crown. I am satisfied, Your Honour. [ 59 ] MR. KNOTT: Yes, for the record, defence is satisfied as well, Your Honour. [ 60 ] THE COURT: Thank you. I believe that completes the disposition of this matter. (REASONS CONCLUDED)