HMQ v Barwell 2013 ABPC

Mr. Barwell was charged with an offence concerning animal cruelty under s. 445.1(1)(a) of the Criminal Code. The sentencing decision considered whether victim impact statements lodged by the Edmonton Humane Society, present caregiver of the animal, and two neighbours of the accused were allowed to be entered on behalf of the animal.

S. 772(4) (a) of the Criminal Code allowed ‘victims’ of an offence to lodge victim impact statements, defining ‘victims’ as ‘persons’ to whom harm was done or suffered emotional or physical loss as the result of a commission of a crime to lodge victim impact statements. S. 772(4)(b) of the Criminal Code added that where the persons in (a) were “dead, ill, or otherwise incapable of making a statement” the definition of ‘victim’ would include “the spouse or common-law partner or any relative of that person, anyone who in law, or in fact, the custody of that person, or is responsible for the care or support of that person or any dependent of that person.”

The Crown argued that victim impact statements should be allowed as the situation was analogous to any involving humans wherein the victim was unable to speak for any reason. He also argued that as animals are considered property under the law, an analogy can be drawn between victim impact statements being given on behalf of an animal, and impact statements given regarding property damage.

The defence argued that the definition of ‘victim’ in s. 722(4) of the Criminal Code was restricted to ‘persons’ an that an unduly broad reading of (b) risked creating a “political circus.”

The Court found that if parties agreed that the victim impact statements could be entered, they could be received by the Court. In the event of an objection however, s. 722(4) of the Criminal Code would rule, thus, excluding victim impact statements concerning animal victims through its use of the word ‘persons.’ The Court noted that parliament had not annotated the Criminal Code to indicate that any enlarged scope for the definition of ‘victim’ and thus, it would be inappropriate for the Court to allow such a definition.

In the sentencing, the Crown argued for that Mr. Barwell should be incarcerated for a period of 20 to 24 months given the severity and prolonged nature of the abuse (“torture”) and noting the tendency of the courts to treat these offences more seriously following the increase in the statutory maximum in 2008. The defence argued for a conditional sentence given mitigating factors. The Court rejected the Crown’s use of the word ‘torture’, substituting ‘cruelty’ as the appropriate word in the legal context, rejected a conditional sentence order given the aggravating factors in the case, and sentenced Mr. Barwell to a 14 month period of incarceration given the mitigating factors in the case.

Source: Case Law

Jurisdiction: Alberta

Topics: animalCriminal Codedogpersonhoodsentencingvictim impact statement

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