R. v. Kennedy, 2017 ONSC 817

CITATION : R. v. Kennedy , 2017 ONSC 817 COURT FILE NO.: 13-30542 DATE: 2017/02/01 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN – and – DANIEL KENNEDY Accused ) ) ) ) ) ) ) ) )) ) ) )) Moiz M. Karimjee , for the Crown Jacob Legault , for the Accused ) ) HEARD AT OTTAWA: February 1, 2017 DECISION on

SUMMARY CONVICTION APPEAL PHILLIPS J. [ 1 ] On September 29, 2013, Daniel Kennedy had some visitors to his 10 th floor apartment. One of those visitors was an eight- year-old girl who would often visit his place to play with his pet rabbit. She had come that day with her parents to show Mr. Kennedy her new kitten. At some point, Mr. Kennedy indicated that he was angry with his rabbit, and was also angered by something the mother of the child had said. He threatened to throw the rabbit off the balcony, saying “if you don’t believe me, just watch”.

He removed the rabbit from its cage, took it onto the balcony and dangled it over the railing for 3 to 4 seconds. He then let it go, condemning it to fall to its certain death. [ 2 ] Needless to say, the eight-year-old child and her parents were shocked. Mr. Kennedy went downstairs, collected the dead animal, and disposed of it in the garbage chute. [ 3 ] Mr. Kennedy was charged with a count of cruelty to animals contrary to

section 445.1 of the Criminal Code . He was convicted after a trial on February 11, 2015. [ 4 ] The Crown sought a jail sentence of between 9 to 12 months. Defence argued that either a 90 day intermittent sentence or a 12 month conditional sentence would be appropriate. On June 5, 2015, the trial judge imposed a sentence of nine months. [ 5 ] Mr. Kennedy appeals the fitness of that sentence. He argues that a sentence of five months ought to be imposed instead. [ 6 ] Pursuant to

section 687 of the Criminal Code , where an appeal is taken against sentence under

section 813 of the Criminal Code , a court of appeal shall, unless the sentence is one fixed by laws, consider the fitness of the sentence appealed against, and may, on such evidence, if any, as it thinks fit to require or receive, vary the sentence within the limits prescribed by law for the offence of which the accused was convicted, or dismiss the appeal.

Equally, the jurisprudence has developed such that if there is an error in principle, a failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal may intervene to vary a sentence even if the sentence is not unfit. [ 7 ] Mr. Kennedy argues that the trial judge imposed a sentence which was harsh, excessive, and unwarranted. It was beyond the range of sentence which could have been appropriate in the circumstances in order to properly give effect to the principles of sentencing contained in the provisions of sections 718 to 718.2, inclusive, of the Criminal Code .

In argument, Mr. Kennedy elaborated upon his view that in arriving at the sentence, the trial judge placed undue weight on his dated criminal record, overemphasized her finding that he lacked remorse, overemphasized his lack of family support in light of his circle of friends, and failed to appreciate his suitability for

more rehabilitative efforts, especially with respect to substance abuse. He also argues that the sentencing reasons were insufficient. [ 8 ] I cannot agree that the sentencing judge failed to articulate the evidence and reasoning behind her conclusion, such that it cannot be reviewed or understood. The sentencing judge made clear which parts of the evidence she considered as aggravating and which parts she considered mitigating. The reasons sufficiently justify and explain the results and provide for meaningful appellate review of the correctness of the decision.

As such, the reasons do not run afoul of the rule in R. v. Sheppard , 2002 SCC 26 . [ 9 ] The sentencing judge found several aggravating factors which are now argued to be improper. For instance, she found that Mr. Kennedy is an abusive man who is mean when he drinks and does not care to change. This finding was certainly available to her on this body of evidence. The cruelty to animal conduct, committed as it was in the context of interpersonal conflict, and in front of a child, is very much the conduct of an abusive man who is mean when he drinks.

Moreover, the fact that he was said in sentencing submissions to be a ‘functioning alcoholic’, despite his alcohol related criminal record and the multiple attempts by the justice system to compel him to bring his alcohol consumption within the bounds of non-harmful conduct, is a basis upon which the sentencing judge could have reasonably concluded that he has no insight or willingness to change his ways. While the criminal record is dated, the substance abuse and anger management shortcomings which animate it appear to have still been operative on September 29, 2013.

The sentencing judge, while acknowledging the gap in the criminal record, nonetheless determined that he had not really changed despite being extended multiple opportunities to do so. That conclusion was available to her. [ 10 ] The sentencing judge’s conclusion that he had not really changed over the years formed a basis for her to give paramount consideration to denunciation and deterrence over rehabilitation. In this way, her imposition of a nine-month jail sentence cannot be said to be inconsistent with the principle of restraint.

When the dated nature of the criminal record is considered along with the totality of the evidence about the offender’s behavior over the years, it is clear that he is no youthful first-time offender whose rehabilitative needs and prospects ought to drive the result. He does not even appear to have any insight into the degree of his present wrongdoing, maintaining that he lacked intent even during the preparation of the pre-sentence report, a notion obviously rejected in the trial result.

Even defence counsel at the sentencing hearing acknowledged that a lengthy jail sentence (one of 12 months if served in the community) was called for. [ 11 ] It is true that the sentencing judge did not acknowledge the possible support available from Mr. Kennedy’s circle of friends. I take from this only that she evidently saw greater meaning in the fact that he has no real relationship with his family, including his children. I observe that a sentencing judge is not required to avert to every piece of evidence and explain how each ends up with its assigned weight.

The sentencing judge was entitled to draw an inference from Mr. Kennedy’s inability to maintain relationships with those closest to him. Her failure to consider the effect on his rehabilitative prospects, if any, of those outside his immediate circle is no error in the circumstances. [ 12 ] The sentencing judge highlighted as an aggravating factor the fact that the cruelty was committed in the presence of an eight- year-old child. It seems to me that that was an observation available to her. The evidence was that Mr.

Kennedy knew the girl to be an animal lover who had come over to play with the rabbit before. [ 13 ] In my view, the sentencing judge properly outlined what features of the evidentiary landscape were mitigating factors and aggravating factors. She was obliged to weigh those variables and evidently did so. It must be remembered that judging is more art than science. There is no mathematical formula and a sentencing judge cannot be expected to explain with precision how certain factors end up outweighed by others.

I keep in mind that considerable deference is to be extended to a sentencing judge who, in having presided over the trial, came to be in the best position to assess the facts and their relative import. [ 14 ] It is fair to say that our society’s shared position with respect to the acceptable way to treat an animal has evolved. This is probably as a result of the decline in the proportion of us living in an agricultural context. With most people now living in an urban environment, our contact with animals is generally for companionship rather than utility.

Evidently picking up on this attitudinal evolution, Parliament in 2008 saw fit to increase the maximum sentences with respect to offences of this nature. The sentencing judge was right to recognize and act on that change. To do otherwise would be to ignore the will of the legislature. [ 15 ] The maximum sentence, therefore, for Mr. Kennedy’s offence is 18 months. The sentencing judge apparently assessed the gravity of his offence and the degree of his responsibility to be proportionate to half the maximum.

While other judges might have come to a different result, this sentencing judge’s conclusion cannot be said to be unfit when the circumstances of this offence and this offender are considered in totality. My review of the case law provided shows that a 9 month sentence, while perhaps high, is within the range. [ 16 ] The sentencing judge was in the best position to decide an appropriate sentence. She identified the aggravating and the mitigating factors, assigned them weight and balanced them.

She evidently decided to give paramount consideration to the principles of denunciation and deterrence, a decision that makes sense given the circumstances and the fruitlessness of the past rehabilitative efforts. Having heard the trial, she was well-positioned to know how much denunciation and deterrence was called for. Accordingly, her decision that a conditional sentence would not accomplish the degree of denunciation and deterrence required is entitled to deference. [ 17 ] The sentencing judge decided that this offender, on these facts, warranted a sentence halfway to the maximum.

I see no error in the way she arrived at that result. I am also not persuaded that her sentence was disproportionate to the harm done, both to the animal and to the people, including a child, who Mr. Kennedy saw fit to expose to the sight of a defenceless pet being dangled 100 feet from the ground before being dropped to its death. [ 18 ] The appeal is dismissed.

Justice Kevin B. Phillips Released: February 1, 2017 CITATION : R. v. Kennedy , 2017 ONSC 817 COURT FILE NO.: 13-30542 DATE: 2017/02/01 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – DANIEL KENNEDY Accused DECISION ON

SUMMARY CONVICTION APPEAL Justice Kevin B. Phillips Released: February 1, 2017