Operaciones básicas

Shortly after confederation in 1867 the new Canadian federal government enacted several Acts that were copied from the Statutes of England, one of which was the prohibition against cruelty to animals. The thinking on the part of the Canadian legislators was that following the lead of the motherland was “as safe a starting point as we could get for the

81 21 Hansard Parliamentary Deb. HC 12 May 1829 at 1319.

82 An Act for the More Effectual Prevention of Cruelty to Animals (1849) 12 & 13 Vict. c 92.

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preparation of the criminal law.”⁸³ They chose to make only one change. They lightened the punishment for anyone convicted of cruelty to an animal. The provision for a fine or imprisonment was kept, but the term of confinement was limited to a maximum of thirty days rather than the three months permitted under the English law.

The legislators were aware that this more lenient sentence would supercede the animal protection law that the Province of Nova Scotia had enacted in 1824, which specified the punishment for cruelty to an animal would be public whipping. They limited their

discussion about this provincial law, however, to an observation that the Maritime

Provinces followed the old English system of severe punishments for criminal offences in general and might not welcome the more lenient sentence.⁸⁴ They must have concluded this objection was surmountable because they proceeded to adopt the new animal

protection law, along with its reduced sentencing provisions, without further discussion.

The criminal law was codified into a federal code in 1892 in the belief that a unified code would help unite the country and build the nation.⁸⁵ The new Canadian code was based on the draft “Stephen Code”, which was a compilation of the English statutes by Sir James Fitzjames Stephen in 1879 that had been commissioned but not adopted by that country. When the draft Stephen Code was adopted in Canada as the basis for our Criminal Code, the word “wantonly” was added back in to the offence of cruelty to animals, and the word “unnecessarily” appears for the first time.⁸⁶ The original English punishment of up to three months imprisonment also re-appeared.

In his draft code, Sir Stephen had placed cruelty to animals in the category of “crimes against property”. That is the section they were assigned, and in which they remain, in the

83 Hansard, Debates of Senate of Canada 1867-1868, May 15, 1868, p. 320.

84 Id., at 321.

85 See generally, Desmond H. Brown. The Genesis of the Canadian Criminal Code of 1892 (Toronto: Published for the Osgoode Society by the Univ of Toronto Pr., 1989).

86 Section 512 (a) applied to everyone who “wantonly, cruelly or unnecessarily beats, binds, illtreats (sic), abuses, overdrives or tortures any cattle, poultry, dog, domestic animal or bird” (emphasis in the original). The word “unnecessarily” was not used in the statute so Sir Stephen may have added it based on the interpretation given to the statute by the courts. I was unable to access a copy of his draft code to verify this hypothesis, however, so it remains speculation on my part.

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Canadian Criminal Code. Sir Stephen’s decision to place animals in the property section was possibly a result of his focus on the nuances of the law of theft regarding animals. In his Digest of the Criminal Law, Sir Stephen dealt at length with larceny, distinguishing between the animals who could be the subject of theft at common law versus those under statutory provisions only. He omitted the cruelty to animals altogether on the grounds it was only a summary offence.⁸⁷ Yet, the statutory offence of cruelty to animals applied to the owner of the animal, and as we saw was intended to protect animals, not their owners.

Sir Stephen’s decision to classify cruelty to animals as a crime against property was not an entirely accurate reflection of the nature of this offence. The error that may have seemed minor at the time but would cause significant havoc when attempts were made to correct it a century later.⁸⁸

Between the first codification in 1892 and the overhaul of the Criminal Code in the early 1950’s there were only a handful of changes to the animal cruelty provisions.⁸⁹ The first was in 1895, when the protection of the law was extended to include cruelty to “any wild animal or bird in captivity”.⁹⁰ In 1925, the element of failing to supply food, water or shelter was added to the definition of the offence.⁹¹ Five years later, in 1930, the words

"proper and sufficient food, water, bedding, care and shelter" were added for clarification.⁹² In 1938, however, that section was repealed and the reference to the supply of food, water, bedding, care and shelter was deleted.⁹³

87 Sir James Fitzjames Stephen. A Digest of the Criminal Law (c. 1878). [Electronic ed.]

88 The attempts to reclassify the offence are discussed in chapter 6 of this thesis.

89 This legislative history is set out in R. v Clarke [2001] N.J. No.191 (Nfld Prov Ct).

90 An Act Further to Amend the Criminal Code, SC 1895, c 40 added the words “any wild animal or bird in captivity” to then section 512(a). The section was subsequently renumbered s 542 (RSC 1906, c.

146).

91 An Act to Amend the Criminal Code, SC 1925, c38, s12 repealed and reenacted then section 542(a) to state: “wantonly, cruelly or unnecessarily beats, binds, ill-treats, abuses, overdrives, tortures or abandons in distress, or having actual possession and control thereof in any way fails to provide and supply food, water and shelter for any cattle, poultry, dog, domestic animal or bird, or wild animal or bird in captivity, so that unnecessary suffering or injury is caused to the same;”.

92 An Act to Amend the Criminal Code, SC 1930, c11, s11.

93 An Act to Amend the Criminal Code, SC 1938, c44, s35.

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The reforms that came into force with the Criminal Code of 1955 made two changes to the animal cruelty provisions. First, the reference to the supply of food, water, care and shelter was returned to the definition of the offence, although the words "suitable and adequate" were used rather than the earlier terminology of "proper and sufficient".⁹⁴ Second, the term “wilfully”, was used in place of “wantonly”, and was defined to include an alleged omission to act.⁹⁵ This definition was “intended to extend and broaden the meaning of the word ‘wilfully’.”⁹⁶ The consolidation of federal statutes in 1985 renumbered these provisions but left them substantively the same.⁹⁷