R. v. Bee and Wilson, 2014 BCPC 476

Citation: R. v. Bee and Wilson 2014 BCPC 423 Date: 20140731 File No: 15968-2-C Registry: Port Hardy IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CRYSTAL DAWN BEE RUPERT JAMES WILSON REASONS FOR SENTENCE RE ACCUSED RUPERT JAMES WILSON OF THE HONOURABLE JUDGE T. DOHM Counsel for the Crown: B. Webber Counsel for Accused Wilson: J. Hormoth Place of Hearing: Port Hardy , B.C. Date of Hearing: July 31, 2014 Date of Judgment: July 31, 2014 [ 1 ] THE COURT: Mr.

Wilson has pleaded guilty to failing to provide suitable and adequate food, water, shelter, and care for a domestic animal, specifically a shepherd/husky type of dog named Molly. [ 2 ] He and his then-partner Bee, who is not before the court, had this dog Molly. The partner had brought the dog into the household and then left the household and left Mr. Wilson with the dog.

[ 3 ] In November of 2013, a school bus driver who frequently went past Mr. Wilson's residence contacted the RCMP and reported that he could see a dog confined on a deck on the outside of a house that did not have access to shelter, food, or water. A member of the RCMP went to the residence to investigate, met with Mr. Wilson, and was told by Mr. Wilson that the dog, Molly, was okay and that he was going to send the dog to Alert Bay in a few days. Accepting what Mr. Wilson said, the constable took no further action. I point to that fact as an active action of deceit by Mr.

Wilson. [ 4 ] About 12 days later, on the 25th of November, the same bus driver made the same complaint. A different constable attended to the defendant's residence. Mr. Wilson then assured the constable that the dog was fine, that it had water, and that it was being fed. He added that he was unable to find a suitable crate to transport the dog to Alert Bay. [ 5 ] The constable on this second attendance insisted on seeing the dog. Mr. Wilson tried to defeat that insistence by saying to the constable that it was dark and it would be hard to see on the deck. These are further acts of deceit by Mr. Wilson.

It demonstrates that he was well aware of the state of the dog, a state that will be described in due course. [ 6 ] The constable insisted, in any event, and Mr. Wilson eventually admitted that the dog had a collar stuck around its neck and that he was unable to remove it. He said that he had been trying to find a grinder to get the collar off. [ 7 ] When seen by the constable, the dog was located on a deck on the upper floor of a house. The deck was covered with feces and with urine. The dog was coated in those materials.

It was unable to move and it had open, infected wounds which the constable could smell from some distance. This dog was in very serious condition. The constable recognized the situation and made arrangements with another constable to have the dog taken to the veterinary hospital in Port Hardy. Mr. Wilson told that constable that he had no money to care for the dog. He also said that he had no plans to take the dog to the veterinarian. He admitted that he should have done something to care for the dog. [ 8 ] Those things have to be looked at in the context of the pre-sentence report, which underlined Mr.

Wilson's intellectual limitations. This is not a man who readily solves problems. [ 9 ] The dog was taken to a veterinary hospital in Port Hardy, put into intensive care. It was in such dire condition that the doctor who removed the collar, described in various materials as a metal choke collar, did so without using anaesthesia for fear that the dog would not survive the operation. A few days later, the dog was transported to a Nanaimo veterinary hospital. [ 10 ] The constable who attended on the second occasion and who brought this matter to a successful conclusion paid for the initial veterinary services.

The amount paid was $607.10. That came from the constable's pocket. There is an application for restitution with respect to that. [ 11 ] While at the Nanaimo veterinary hospital, the dog was described as being in the worst category of emaciation or loss of body weight. The cause of that is not clear to me. It may well have been the dog's collar was tight enough that the dog was unable to eat any food offered, and it may be that there was simply no food/water offered. But nonetheless, it was very obvious that this animal had been seriously neglected. [ 12 ] The dog survived.

The pre-sentence report says that it is doing well in the care of another police constable. [ 13 ] Marked as exhibit in the proceedings is Mr. Wilson's criminal record. It includes convictions for sexual assault in 1990, for which he went to prison for three years; assault in 2004 against his spouse, and for which he was sentenced to a suspended sentence; assault in 2007. [ 14 ] Those things I have to refer to, not simply because they are part of the record, but they are in many ways not especially germane to these proceedings, except that Mr.

Wilson has today protested that he was well brought up and that he has been taught to respect others, including animals by inference. His criminal record does not support that protestation. [ 15 ] He has filed as an exhibit a letter of apology that he delivered to his lawyer this morning, although this matter has been set for sentencing for some time. In that letter, he asserts that he has always shown respect to his community and describes his volunteer work. He says within that letter [as read in]: My parents always taught me about loving, caring, and respecting everyone. I was taught well.

This was a terrible mistake on my part, and I am ready to pay for my mistake. [ 16 ] He then asked for forgiveness, and further along, he described being shunned and despised by everyone. [ 17 ] There is also a request for restitution in the amount of $2,406.33 to the British Columbia Society for the Prevention of Cruelty to Animals, for they paid that much further in the way of veterinarians' bills. [ 18 ] I have been given a variety of cases by the Crown and by the defence. Counsel for the Crown has directed my attention to R. v.

John Vieira , a judgment from the Provincial Court of British Columbia, Kamloops Registry, Docket 75337-1, dated April 10, 2006. That case emphasized at paragraph 10 that financial problems, which Mr. Wilson had, are not an excuse for not taking care of an animal. It also emphasized, and it is common amongst the cases, that the sentencing principles applicable to this case are deterrence and denunciation. [ 19 ] I was also given R. v. Brent Malcolm Connors , a judgment of the Provincial Court of British Columbia at Victoria, File Number 152916-3-C, dated February 2, 2011.

In that judgment, the Honourable Judge Quantz gave a thorough review of the sentencing principles in cases of this nature. That was a helpful review. At paragraph 42, he referred to R. v. Bhalru , 2003 BCCA 645 , at paragraph 45 , and quoted: 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 . [ 20 ] In R. v. Powell , Nelson Registry 21727-1, January 24, 2011, the facts are not completely dissimilar to the facts before the court in Mr. Wilson's case. At paragraph 4, the sentencing judge said that Mr. Powell's conduct showed a callous disregard for the fate of the horse that died in his care. The judge also emphasized, and it is a distinguishing factor, that Mr. Powell continued that attitude during the course of the sentencing.

In the preceding paragraph, the judge emphasized that Mr. Powell had shown no remorse at all. As a result of that, Mr. Powell was sentenced to jail for three months. [ 21 ] I pause to emphasize the differences between the Powell case and this case. Powell had no remorse. Powell did not appear to have limited intellectual capacities to deal with problems. [ 22 ] In R. v.

McKay , a judgment of the Honourable Judge Donegan, as she then was, from the Clearwater Registry, File 4076-1, dated January 27, 2012, at paragraph 40, the judge concluded that, given the gravity of the offence, the level and duration of the suffering of this young animal, and Mr. McKay's high degree of moral blameworthiness, a conditional sentence order would not meet the objectives of denunciation and deterrence. I accept those as being proper statements of principle, and some of those factors are certainly applicable in this case, including the duration and level of the suffering of the dog, Molly.

The question does arise, however, about Mr. Wilson's degree of moral blameworthiness. [ 23 ] R. v. Rodgers , 2012 ONCJ 808 , is a judgment from the Ontario Court of Justice dated November 8, 2012. That case is somewhat different in that Rodgers became enraged at a human and took it out on an animal in a direct assault. His conduct was abhorrent. [ 24 ] The court in Rodgers pointed out that, as a pet owner, there is a trust imposed upon a person not to cause injury, pain, or death to any animal in the individual's custody. Rodgers was sent to jail for eight months.

The Crown there had obviously proceeded by way of indictment. That is not the situation in this case. The Crown here has, and I say, very properly, proceeded by way of

summary conviction. [ 25 ] The Crown asks me to remember that s. 718 of the Criminal Code , which sets out the purposes of sentence, includes denunciation, deterrence of the individual before the court and of others, and the promotion of a sense of responsibility in offenders. The Crown points out as aggravating factors the initial statement about the dog not being in any distress, that that was repeated, and that Mr. Wilson tried to avoid the examination of the dog by Constable Javoric by saying that it was in a dark area. As a mitigating factor also is Mr.

Wilson's awareness of the problem with the collar and the conditions in which the dog was kept, and his failure to take any action. [ 26 ] The pre-sentence report speaks of Mr. Wilson's relationship to his family, who are supportive. One wonders why he did not ask for help. The Crown has emphasized that when the first constable showed up, some 12 days before the second, Mr.

Wilson was presented with an opportunity to ask for help, and instead he deflected the constable's inquiries. [ 27 ] In the McKay decision, the citation of which I have already given, the Honourable Judge Donegan also referred to there being no explanation for McKay failing to ask somebody for help. Mr. McKay was sentenced to a period of 90 days' intermittent jail. [ 28 ] The defence has asked me to consider a number of cases as well. These include R. v. Marohn , 2012 BCPC 199 , a judgment of the Honourable Judge Harris in the Provincial Court situated at Surrey.

In Marohn at paragraph 22 , Judge Harris said: After carefully considering the purposes and principles of sentencing, the recommendation by Crown, it is this court's view that a term of incarceration in the community is not necessary to achieve the requisite degree of denunciation and deterrence. This is because to a large measure, denunciation and deterrence has already occurred. This has occurred by virtue of the public arrest, the conviction, the accused's pre-trial release, conditions on release, as well as the extensive media coverage.

Moreover, this court recognizes that denunciation and deterrence will be further increased because the accused will now have a criminal record. [ 29 ] The sentencing judge continued thereafter. However, I look at the factors that the sentencing judge in Marohn considered as operating to fulfil the purposes of sentencing. [ 30 ] The publicity attending events relating to animal cruelty is often extensive and detailed. It tends also to not be especially short-lived compared to other stories in today's media. So that is a factor that I find is one that I must consider. [ 31 ] Having a criminal record for Mr.

Wilson adds little to the denunciation and deterrence. He already had a criminal record. However, the proceedings and the fact that these proceedings appear to have brought home to him the egregious nature of his negligence -- negligence which was so enduring that it became a positive act of failure -- appears as a factor. [ 32 ] At paragraph 23, reference was made to the decision of Chief Justice McEachern in R. v. D.E.S.M. , 80 C.C.C. (3d) 371 (British Columbia Court of Appeal).

The quote is this: Quite recently, the Supreme Court of Canada has expressed itself quite strongly on the importance of stigma as a consequence of criminal proceedings. The court has been saying what most lawyers and criminologists have known all along, that a public charge, trial and conviction for a serious offence brands a person for life, constitutes serious punishment, and is an important part of the way society brings offenders to account for their misconduct. [ 33 ] In R. v.

Fawcett , 2012 BCPC 421 , a sentencing for a similar kind of offence in North Vancouver on November 22, 2012, it was said, and this case is a notorious case, dealt with the euthanization of several sled dogs that caused unnecessary pain and suffering to nine dogs. In that case, the sentencing judge said in part at paragraph 19 that: . . .

I have concluded that denunciation and deterrence require a fine and that a fine must be commensurate with your ability to pay and in no way relates to the suffering, that is to say, the quantum or the level of fine in no way is in any way based on the level of pain or suffering because if I were to do that, the amount of fine that I would impose [and so on] . . .

[34] The point to be taken from that quote is that punishments imposed by the court are not able to be commensurate in a directrelationship with the harm and pain delivered to the victim. The level and duration of pain are factors in sentencings in cases like this,just as they are in cases of brutality to humans. [35] In R. v. Campbell Brown, 2004 ABPC 17 , [2004] A.J. No. 201, a case in which the offender shot a neighbour's dog, itwas said at paragraph 41 that the extensive media coverage was urged upon the sentencing judge by the defence as a mitigating factor onsentence.

The Crown's reply to that position was that such cases involving the mistreatment of animals invariably attract a high level ofmedia attention, and that to mitigate sentence in response would amount to giving a form of discount on sentence for this type of case. The sentencing judge agreed with the Crown on that point, but accepted that media attention may lessen the importance of a sentencingobjective being individual deterrence. That case has to be read not on its own, but in combination with the quote that I cited from ChiefJustice McEachern. [36] I was provided by the defence, R. v.

Rabeau, 2010 ABPC 159 , [2010] A.J. No. 567. This is case where a young personkilled a puppy without any planning or deliberation. There was a guilty plea. He was not considered to be at a risk to reoffend. Thedistinguishing factor that the defence asks me to consider is the active nature of the misconduct in Rabeau, as opposed to the passivenature of the misconduct in the case at bar. A similar comment is made with respect to R. v. Tremblay, [2012] B.C.J. No. 2398, and R. v.Whitlock, 2013 BCPC 153. [37] The defence submissions include assertions that Mr.

Wilson was concerned, that he knew he had to act, but that he did not knowwhat to do. It is obvious that he knew that something had to be done. It is obvious that he -- I accept that he was concerned, and I aminclined to take as factual his assertion that he did not know what to do. There is support for that, as I have said earlier, in thepre-sentence report. [38] I am nonetheless perplexed by Mr. Wilson's failure to take advantage of the presence of the police when the opportunity wasthere. He obviously had his own interests foremost.

There is no other reasonable explanation for his attempts to deflect both the originalinvestigating officer and the second. [39] The Crown has submitted that there should be a sentence of real jail with restitution and an order that Mr. Wilson not havecustody of any animals for a number of years. [40] The defence has asked that I consider the suspension of sentence and a probation order, which would address counselling. Theneed for that will become apparent when I deal with the pre-sentence report. The defence has submitted that there is no real ability inMr. Wilson to pay restitution.

In its place, it is suggested that there be community work service, also as a matter of punishment. As analternative, the defence suggests that I consider a conditional sentence order. [41] The Crown is opposed to the imposition of a conditional sentence order because of a letter provided recently to the Crown,although it should have appeared by May 25, when the matter was originally set. In any event, the letter is dated May 26, it is from theprobation officer who was charged with preparing a pre-sentence report. That order was made February 25, 2014. The report was dueMay 27, 2014.

The body of the letter said that, despite numerous scheduled appointments with Mr. Wilson since February 25, he wasunable to attend the probation office until May 16, 2014, one week prior to the required date of May 25, 2014. [42] The words chosen by the probation officer are important. The probation officer has said that Mr. Wilson was unable to attend;he does not say that Mr. Wilson broke the appointments without any communication. Mr. Wilson has said he was unable to attendbecause he had a longstanding flu-like illness. There is nothing to contradict that.

I would be wrong not to accept that. [43] I also accept the submission from the defence that since Mr. Wilson has recovered, he has been, as it were, to use the words ofthe submission, on track with the preparation of the pre-sentence report and his court attendances. [44] The pre-sentence report says that Mr. Wilson was born January 22, 1966, at Alert Bay, British Columbia. He partiallycompleted Grade 12. He has made his living working primarily in the fishing industry. He is presently unemployed and is in receipt ofsocial assistance from the band. He receives $235 per month in support payments.

That is a level of income most Canadians cannotimagine surviving on; that last is my comment. [45] The pre-sentence report continued with the reference to Community Corrections file information that Mr. Wilson has beenassessed in the low-average range of intelligence. He has impairments in his verbal abilities and he has difficulty in reading and writing. He has a longstanding problem with alcohol and drug abuse. The report says that Mr. Wilson believes that his use of alcohol and drugshad a bearing on the current offence.

He claims not to have used any drugs in the four months preceding the preparation of thepre-sentence report. [46] The pre-sentence report summarized some of the facts. The dog was extremely emaciated, weighing only about one-half of whata healthy dog of that type should weigh. It also refers to a report to which I have already alluded, that the current owner says the dog isrecovering well. [47] Under the heading of the pre-sentence report, "Attitude and receptiveness to previous and proposed interventions", it is said thatMr. Wilson was the subject of community supervision in 2004 and 2007.

File records indicate that he complied with the terms of hisprevious orders. [48] There is then a reference to sentencing considerations for aboriginal offenders. Those things are important in Canadian law, butthey usually or are often subsumed in the principle of sentence that a sentence must be tailored to the individual offence and thecircumstances of the offender. There was no suggestion that there should be the use of traditional methods of resolving this offence. [49] The pre-sentence report also repeated Mr.

Wilson's expression of shame and remorse for his actions and his preparation to makean apology to the community. He addressed the court today, as is his right, before the imposition of sentence. He said that he was sorryabout what he has done, and he said that with some level of emotion. There is no reason why I should not accept Mr. Wilson's apology

or his expressions of remorse. He did plead guilty early on in the proceedings; that is a legally-recognized expression of remorse. [ 50 ] In considering whether or not a conditional sentence order is suitable, I have to consider whether or not Mr. Wilson is likely to comply with it. He has no history for failing to comply with community orders and I have to consider whether or not the imposition of a conditional sentence order would endanger the safety of the community.

I do not see how a conditional sentence order could endanger the safety of the community. [ 51 ] I then ask what a conditional sentence order would offer in the way of denunciation and deterrence beyond the imposition of a suspended sentence and a probation order. The answer is this: A conditional sentence order is an elevated sentence. It sends a stronger message to the community than does a suspended sentence. I am mindful of that. [ 52 ] Based on all of the authorities given to me, Mr.

Wilson's conduct, his personal circumstances, his failure to take opportunities to alleviate the dog's suffering when presented with them, or his attempt to discourage the police from investigating, in all those circumstances, and not ever losing sight of the degree and duration of the injury to the dog, that a conditional sentence order is appropriate. [ 53 ] I am reinforced in this when I consider how we treat people who are being sentenced for assaulting and causing bodily harm to humans. Conditional sentence orders are common in those circumstances. [ 54 ] There will be a sentence, Mr.

Wilson, of three months' imprisonment, to be served under a conditional sentence order. The terms of the conditional sentence order are that you must keep the peace and be of good behaviour. You are to report to a conditional sentence supervisor no later than four o'clock this afternoon in Port Hardy, British Columbia, and you will report thereafter as directed by the supervisor.

There are other statutory terms which will be on the order, they will be read to you by the justice of the peace, and they form part of the order as though I had pronounced them. [ 55 ] In addition, you will, for the first 30 days of your conditional sentence order, be bound by a curfew 24 hours per day, with exceptions.

During the hours of curfew, you must be in your residence and you must promptly answer the door and identify yourself to the reasonable satisfaction of any peace officer or conditional sentence supervisor who is checking on your compliance with your curfew. [ 56 ] You may be outside of your residence at any time with the prior written permission of your conditional sentence supervisor.

That prior written permission will be given to you to allow you to be out of your residence for two hours per day for the purposes of attending to exercise, and it will be given to you to allow you to attend to any legal obligations you may have, such as reporting to the supervisor or performing any court-ordered obligations. [ 57 ] You must attend, participate in, and complete such counselling as may be directed for you by your supervisor. [ 58 ] You shall keep your supervisor informed at all times of your residential address and of any change of your occupation. [ 59 ] You will, under the terms of your conditional sentence order, complete 25 hours of community work service before the expiration of your conditional sentence order.

That is to be done on the direction of your supervisor and to the supervisor's reasonable satisfaction. [ 60 ] After the conditional sentence order is served, there will be a period of probation for 12 months. The terms of that are that you must keep the peace and be of good behaviour.

You are to report to a probation officer within two working days of your completion of your conditional sentence order and thereafter as directed by your probation officer. [ 61 ] You will attend, participate in, and complete such counselling as may be directed for you by your probation officer. [ 62 ] You will perform 75 hours of community work service under the direction of your probation officer and to the reasonable satisfaction of your probation officer.

That work service must be completed during the term of your probation order, or you will be subject to, that is a charge may be laid for breach of probation. [ 63 ] There is an order pursuant to s. 447.1(1) prohibiting you from owning, having the custody or control of, or residing in the same premises as an animal or bird for a period of 10 years. [ 64 ] Under s. 447.1(1) there is provision for me to make an order that you reimburse a person or organization for the reasonable costs that have been incurred in respect to the animal. You are not a person of any means at all.

Your income is a little over $200 a month. I am told that you do volunteer work. I am told also that you expect to find work. [ 65 ] The law in Canada is that the courts are not supposed to impose restitution orders unless that is within the means of the offender to make restitution. I am distinguishing between the monies put out by Constable Javoric and those put out by the British Columbia Society for the Prevention of Cruelty to Animals.

Firstly, with respect to the SPCA amount of $2,406.33, that is, I find, in your current circumstances, an impossibility. [ 66 ] I do make a distinction, as I said, with respect to the money put out by Constable Javoric of $607.10. You can raise that amount of money, even if you have to walk along the highway and pick bottles. You can raise that amount of money by doing simple work in your community or getting a job in the industry to which you are historically connected.

I do not have great optimism for your hopes on that last, but I think that Constable Javoric's contributions were so critical in undoing the harm that you had done to that dog that some recompense must be made. [ 67 ] That constable, I am sure, did what she did out of the goodness of her heart, without expectation of recompense. You should make recompense. I am satisfied that with reasonable efforts, you can, over the foreseeable future, make restitution to Constable Javoric in the amount of $150, and I order that you do that.

[ 68 ] There is no time limit on that, is there, Mr. Webber? [ 69 ] MR. WEBBER: I believe not, no, sir. [ 70 ] THE COURT: Have I omitted anything or made anything unclear, counsel? [ 71 ] MR. HORMOTH: I don't think so. [ 72 ] MR. WEBBER: No, no. [ 73 ] THE CLERK: The victim surcharge [inaudible]? [ 74 ] THE COURT: Nobody has addressed me on that. Thank you. You have to sign that order. [ 75 ] MR. WEBBER: Thank you. [ 76 ] MR. HORMOTH: Thank you, Your Honour. (REASONS CONCLUDED)