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

HIGHLIGHTS

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)

NEW CASE LAW

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

445(1)

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.

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