Canada: Agricultural Law NetLetter - Thursday, August 21, 2014 - Issue 306


A Justice of the British Columbia Supreme Court has set aside the conviction of a B.C. cattle rancher who shot a neighbour's dog which was chasing her cattle. In a thorough and careful decision, the Court concluded that the common law justification of defence of property, and the provisions of s. 11.1(2) of British Columbia's Livestock Act were available as defences to the rancher. Section 11.1(2) permits persons to kill dogs if the person finds the dog: (a) running at large, and (b) attacking or viciously pursuing livestock. The Court also found that the defence of colour of right may be available if the person honestly believed that they had an excuse or justification under either the common law doctrine of defence of private property or the Livestock Act. (R. v. Robinson, CALN/2014-029, [2014] B.C.J. No. 2016, British Columbia Supreme Court)


R. v. Robinson; CALN/2014-029, Full text: [2014] B.C.J. No. 2016; 2014 BCSC 1463, British Columbia Supreme Court, S.A. Donegan J., August 1, 2014.

Animals -- Right to Protection Livestock from Dog Attacks -- Defence of Property -- British Columbia Livestock Act.

A British Columbia cattle rancher, Ruth Patricia Robinson ("Robinson") appealed to the British Columbia Supreme Court from a decision of a Provincial Court Judge that she was guilty of contravening s. 445(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46 ("Code") by shooting and killing her neighbour's dog. Robinson testified that the dog had attacked her cattle. She relied on the following defences:

  1. Common law justification of defence of property;
  2. Section 11.1(2) of the Livestock Act, R.S.B.C. 1996, c. 270 (the "Livestock Act"); and
  3. Colour of Right.

There were no credibility issues at trial. Robinson testified that her neighbour, Wayne Beck ("Beck") owned a very large mastiff type dog which entered her pasture and was chasing her cattle - 34 breeding heifers, one cow with a calf, a pregnant heifer heavy in calf, and a bull. Beck appeared to be encouraging the dog to chase the cattle. The cattle stampeded across the pasture and were trapped against a fence in a smaller enclosure. The dog jumped at them and bit them. The cattle were running over each other in attempts to get away and were smashing into a fence and gate. She believed the cattle were at risk and that the dog would also attack and harm both herself and her two border collies. The dog left the cattle and approached her yard. She was afraid it would chase them again or attack her. She shot the dog. Before she did so, Beck fired his gun in her direction and indicated that if she shot his dog, he would shoot her dogs.

Section 445 of the Code provides:

Injuring or endangering other animals


Every one commits an offence who, wilfully and without lawful excuse,

  1. kills, maims, wounds, poisons or injures dogs, birds or animals that are not cattle and are kept for a lawful purpose.

Section 429(2) of the Code provides:

Colour of right

(2) No person shall be convicted of an offence under sections 430 to 446 where he proves that he acted with legal justification or excuse and with colour of right.

Section 8(3) of the Code preserves common law defences. It provides:

Common law principles continued

(3) Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament.

Section 11.1(2) of the Livestock Act provides:

(2) A person may kill a dog if the person finds the dog

  1. running at large, and
  2. attacking or viciously pursuing livestock.

Section 11.1(1) of the Livestock Act provides as follows with respect to "running at large":

(1) For the purposes of this section, "running at large" does not apply to a dog that is under control by being

  1. on the property of its owner or of another person who has the care and control of the dog,
  2. in direct and continuous charge of a person who is competent to control it,
  3. securely confined within an enclosure, or
  4. securely fastened so that it is unable to roam.

In convicting Robinson, the Provincial Court Judge concluded that there was no reliable evidence the dog was barking when it chased the cattle and that there was also no evidence that the dog nipped, bit or injured any of the cattle.

Decision: S.A. Donegan, J. allowed Robinson's appeal, set aside the conviction and ordered a new trial [at para. 135].

Donegan, J. concluded [at para. 37 to 58] that the Provincial Court Judge had misapprehended the evidence by failing to consider detailed evidence with respect to the dog's actions in two written statements tendered by the Crown, and admitted into evidence at trial as proof of their contents.

Donegan, J. also concluded that the Provincial Court Judge had erred in law in failing to consider the common law justification of defence of property, in misinterpreting s. 11.1(2) of the Livestock Act, and by failing to consider the defence of colour of right. With respect to these issues, Donegan, J. had the following comments:

1. Common law justification of defence of property

Donegan, J. concluded [at para. 74 to 81] that the common law justification of defence of property was preserved by s. 8(3) of the Code. She referred to a number of cases in which the defence had been applied to dogs which attacked livestock: R. v. Murphy, [2010] N.S.J. No. 30, 2010 NSPC 4 (CanLII), 2010 NSPC 4; Regina v. Etherington, [1963] 2 C.C.C. 230 (Ont. Mag.Ct.); and R. v. Clouter, [1990] N.J. No. 285, 86 Nfld. & P.E.I.R. 1 (S.C.).

Donegan, J. summarized the common law justification of defence of property in relation to dog attacks on livestock as follows, at para. 82:

[82] As these authorities demonstrate, the common law justification of defence of property is available as a lawful excuse to a charge under s. 445(1) of the Code. In my view, this justification can be articulated as follows:

At the time of the wilful act causing the killing (or other listed harms):

  1. the dog was actually attacking the accused's property, or if left at large, the accused's property would be subject to real and imminent danger the attack would be renewed; and
  2. having regard to all of the circumstances in which he found himself, the accused reasonably believed the act was necessary and that he could save his property in no other way or no other practical means were readily available to stop the attack or prevent its renewal;

2. Section 11.2(2) of the Livestock Act

At para. 89 to 126 Donegan, J. considered the proper statutory interpretation of this section. Finding [at para. 105] that the overall purpose of the Livestock Act can be "fairly described as providing for the safekeeping of livestock.

With respect to s. 11.1(2), Donegan, J. commented [at para. 108 and 109]:

[108] ... one can see that the legislature identified one potential risk to the safekeeping of livestock where a person is justified in eliminating that risk - dogs that are running at large. However, unlike similar legislation in other provinces, our legislature has more narrowly defined the circumstances under which that risk can be eliminated. In addition to "running at large", the dog must also be either "attacking" or "viciously pursuing" the livestock.

[109] By providing this guidance to those persons protecting livestock, the overall purpose of the LA is maintained, yet is balanced by the need to protect dogs that may come into contact with livestock.

Donegan, J. compared the common law justification of defence of property to the defence afforded by the Livestock Act as follows [at para. 113 to 119]:

[113] As I have outlined earlier, the common law justification of defence of property applies to owners of property. It requires that at the moment of the act, the offending dog is actually attacking the owner's property or if left at large, the owner's property would be subject to real and imminent danger the attack would be renewed. It also requires that the owner reasonably believe his act was necessary and that he could save his property in no other way, or that no other practical means were readily available to stop the attack or prevent its renewal.

[114] Section 11.1(2) of the LA expands this common law justification when it comes to livestock to make the defence available to all persons, not simply the owners of the at-risk property.

[115] Section 11.1(2) of the LA also expands the common law by what it does not say. It contains no requirement, as found in the common law, that the person killing the dog reasonably believe the act is necessary and that he could save or protect the livestock in no other way, or that no other practical means be readily available to stop the attack or prevent its renewal.

[116] In light of the overall purpose of the LA, the specific purpose of s. 11.1, and the legislative intent to provide broader protection to keepers of livestock than that afforded to owners at common law, it is my view that the legislature could not have attended the narrow interpretation of "finds" and "attacking or viciously pursuing" advanced by the Respondent.

[117] Such a narrow interpretation would defeat the purpose of the legislation and afford persons in the course of protecting livestock less protection than that afforded at common law. Further, this narrow interpretation could require a person to shoot, or otherwise attempt to stop, a moving target in and amongst the livestock being attacked or in close proximity to the livestock being viciously pursued. This would place the livestock sought to be protected at greater risk of harm and thereby defeat the very purpose of the LA.

[118] Rather, a fair and liberal construction, consistent with the common law, the overall object of the LA, and the intention of the legislature is required. To my mind, s. 11.1(2) of the LA should be construed in the same manner as the common law as permitting any person to kill a dog, when at the time of the act of killing, the dog:

  1. is running at large; and
  2. is actually attacking or viciously pursuing livestock, or, if left running at large, would subject the livestock to a real and imminent danger that the attack or vicious pursuit would be renewed.

[119] Such an interpretation also recognizes that the act of killing a dog is prohibited once the need for protection of the livestock has ended.

Donegan, J. concluded that it was not necessary to interpret "attack" as a chase which causes a real and present danger or serious harm and that "vicious pursuit" means a "pursuit which causes a real and present danger or serious harm to the livestock chased" [at para. 122 to 126].

3. Colour of Right

Donegan, J. observed that the defence of colour of right involves a lack of mens rea [at para. 129] and that the defence is available if the defence had an honest but mistaken belief of a legal justification or excuse for the conduct in question, concluding as follows [at para. 134]:

[134] ... It is my view that with respect to consideration of the defence of colour of right, the question for a trial judge is not whether the Appellant had the legal right to do what she did. Rather, it is whether she honestly believed in a state of facts that would mean she had such a right. If the Appellant can point to some evidence that raises a reasonable doubt as to whether she honestly believed in a state of facts that, if they existed, would provide her with an excuse or justification either under the common law doctrine of defence of property or pursuant to s. 11.1(2) of the LA, she would be entitled to an acquittal as having acted under a colour of right.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.