R. v. Draney, 2011 BCPC 523

Citation: R. v. Draney 2011 BCPC 523 Date: 20110511 File No: 88552-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DARREL DRANEY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.R. HARRISON Counsel for the Crown: A. Janse Counsel for the Defendant: R. Bruneau Place of Hearing: Kamloops , B.C. Date of Hearing: May 5, 2011 Date of Judgment: May 5, 2011 [ 1 ] THE COURT: Mr. Draney is before me having been convicted of an offence pursuant to s. 446(1) (

b) of the Criminal Code that he, being a person having custody or control of domestic animals, to wit, horses, abandoned them in distress or wilfully neglected or

failed to provide suitable and adequate food, water, shelter, and care for them. In the reasons this morning, I outlined the facts in some detail and I will not review those now. [ 2 ] The Crown takes the position that this is a matter which raises primarily the principles of denunciation and deterrence in sentencing and that there should be a jail sentence somewhere in the range of four to six months for Mr. Draney, although the Crown is not opposed to a conditional sentence order. Crown has no record to allege against Mr. Draney. [ 3 ] They rely on two cases in particular, R. v.

Harfman and Harfman , a decision of the Honourable Judge Sinclair of this court given February 3, 2011, in Penticton under number 35084. That is a case in which Judge Sinclair sentenced Mr. Harfman to a six-month conditional sentence order with respect to his mistreatment of animals in his care.

The six-month sentence was followed by 30 months of probation, and as Judge Sinclair said, "so that we have you tied up for three years total." It was a term of the probation order that the accused was not to reside with or have custody or control of any animal or bird during that period. [ 4 ] The Viara case was also cited, a decision of Judge Pendleton of this court, an unreported decision given April 10, 2006, in Kamloops under number 75337, and in that case a conditional sentence order was given for four months after a review of the number of sentence cases.

The facts in this case related to the accused's guilty plea to causing unnecessary pain or suffering or injury to 29 dogs and failing to provide suitable and adequate food, water, or care for six dogs and eight turtles. [ 5 ] The Crown is also seeking a five-year ban on having the care or custody of animals. [ 6 ] Counsel for Mr. Draney points out that Mr. Draney is 49 years of age. He is married with children. He has lived on the Skeetchestn Reserve all his life. He has reduced the number of animals that he now has. He is down to two horses.

He has got no cattle, although his children who live with him have horses. He makes his living as a Band councillor. He is in his third two-year term and makes up to $3,000 per month. It is a full-time job and he expects to run again. [ 7 ] Counsel pointed out that there have been consequences to Mr. Draney already. He has paid restitution to the BCSPCA, although I note he said he did that under duress. Nonetheless, the monies expended by the SPCA in respect of this case have been paid by Mr. Draney. [ 8 ] Counsel made reference to the fact that he has found these proceedings to be expensive with a two-day trial.

I do not take this as a mitigation, but it is a reflection of some of the financial reality that Mr. Draney has faced.

The amounts paid in that regard are not specified, but counsel assures me they are significant. [ 9 ] To that extent, it is suggested that he has already faced some punitive elements, and that in mitigation it should be considered that the accused was making effort, albeit not sufficient to relieve the suffering of animals, some his own and some belonging to his community, and that that should be taken into account and should not result in a jail sentence whether a conditional sentence or otherwise. [ 10 ] The accused is, of course, an aboriginal and it is suggested that there are features that need to be taken into account both in terms of sentencing principles under the Criminal Code and in accordance with the Gladue decision out of the Supreme Court of Canada, and these are cultural factors that should be taken into account. [ 11 ] Mr.

Draney is a leader in his community. He is not someone who has apparently suffered or felt the need to discuss any difficulties that he has suffered from systemic difficulties in that community. Rather, the Gladue factors for consideration in this case are put in terms of the ban sought by the Crown for five years with respect to the possession of animals. Mr. Bruneau for Mr. Draney suggests that in this Band, in particular, they have a close relationship with their animals and it will be a greater hardship for Mr.

Draney if he is not able to live in and around and with animals in that community. [ 12 ] I am satisfied that the principles of deterrence and denunciation are near the top of the list for consideration in cases such as this. It is important that people understand that they must look after their animals or, if they take charge of animals who need assistance, they must deliver that assistance or abandon the attempt. That did not happen here and it must be understood to members of Mr.

Draney's community and in the wider community that there will be consequences for people who cause suffering by way of neglect of animals. [ 13 ] I do not ignore the question of rehabilitation and I take to heart Mr. Bruneau's assertion that his client will be approaching these things differently in the future if he has the opportunity than he has in the past and that this has been a learning experience.

I also must take into account cultural factors as required by the Gladue decision. [ 14 ] In the result, I am satisfied that a short term of jail to be served in the community, so not jail at all really, will be sufficient. [ 15 ] Would you stand up, Mr. Draney. [ 16 ] Mr. Draney, I am going to sentence you to a conditional sentence order for a term of 60 days. You are going to be required to be under the terms of an order which is considered to be a term of jail served in the community.

During that time, I will not place you on house arrest, but I will give you a curfew for 30 days out of that 60, and the terms of the order will be as follows. [ 17 ] You are to keep the peace and be of good behaviour. [ 18 ] You are to appear before the court when required to do so by the court and you are to report in person to a conditional sentence supervisor forthwith at the probation office on the ground floor of this building and afterwards as and when directed by the supervisor and in the manner directed by the supervisor. [ 19 ] You are to remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or the supervisor.

The jurisdiction of the court is the Province of British Columbia.

[ 20 ] You shall notify the court or the supervisor in advance of any change of name or address and promptly notify the court or the supervisor of any change of employment or occupation. [ 21 ] Under 302, when first reporting to the supervisor, you are to inform him or her of your present residential address and telephone number and you shall not change your address or telephone number without first obtaining the written consent of the supervisor. [ 22 ] Under 303, you shall obey a curfew by being inside your residence between the hours of 8:00 p.m. and 6:00 a.m. each day except as follows: with the written consent of the probation officer, such consent is to be given only for compelling personal, family, or employment reasons, or in the event of a medical emergency and then only when travelling directly to or returning directly from a hospital emergency ward. [ 23 ] There will be check provisions in this under 306 and 306A.

You shall present yourself at the door to your residence when any peace officer or supervisor attends there for the purpose of determining your compliance with the curfew condition of this order. You shall respond personally and immediately to the telephone when a peace officer or supervisor makes a telephone call to your residence for the purpose of determining your compliance with the curfew condition of this order. [ 24 ] Now, these three conditions, the curfew and the two curfew check provisions, will apply for 30 days.

The conditional sentence order itself, as I say, will last for 60. [ 25 ] Under 315A, you are not to possess or consume any alcohol or drugs except as prescribed for you by a physician; and under 316, you are not to enter any liquor store, beer and wine store, bar, pub, lounge, or other business premise where the primary commodity sold is liquor; and under 333, under the direction and supervision of the supervisor you shall successfully complete 25 hours of community service work during the course of the conditional sentence order. [ 26 ] There is a $50 victim fine surcharge.

Will your client need time to pay that, Mr. Bruneau? [ 27 ] MR. BRUNEAU: Just a couple of weeks, I am sure, for a cheque to clear. [ 28 ] THE COURT: All right. You will need to pay the $50 victim fine surcharge to the clerk of the court here in Kamloops and that will be on or before the 20th of May, 2011. [ 29 ] When you leave here, you will go to the registry for your conditional sentence order, which will be provided to you. You can then report downstairs to probation.

You will also be provided with a form that will explain to you how much you have to pay, when you have to pay it by, and how you can go about paying it to the clerk of the court. That is your victim fine surcharge. [ 30 ] Now, there is also the matter of an order of prohibition requested by the Crown under s. 447.1(1)(

a) and, in my view, that is appropriate. It is appropriate for animals who would otherwise be around you. It is also appropriate to help you understand what you need to do when you come back into the custody or control of animals upon the expiry of this. [ 31 ] I am not going to make the order for five years. I will make it for three years. So in addition to the sentence that I have imposed, under 447.1(1)(

a) of the Criminal Code , I am making an order prohibiting you from owning, having the custody or control of, or residing on the same premises as an animal or a bird during any period the court considers appropriate, in this case three years. [ 32 ] All right. So you are not to breach the terms of that order or you will be committing a separate criminal offence. [REASONS FOR SENTENCE CONCLUDED]