Please read the disclaimer before perusing the following article.
(originally published in Beef in B.C. in 1989)
What has to be proved to convict a suspect, called “an accused”, of rustling? In order to convict any accused, the Crown has to prove certain points, or “elements” of a charge.
Someone who is suspected of theft of cattle is usually charged under s. 338 of the Criminal Code (Canada).
Section 338 reads as follows:
The accused may also be charged under section 354 of the Criminal Code with possessing property obtained by crime.
Section 354 reads as follows:
Note that “cattle” in these sections means “neat cattle or an animal of the bovine species by whatever technical or familiar name it is known, and includes any horse, mule, ass, pig, sheep or goat”.
The offence described in s. 338 is an “indictable offence” which means that federal lawmakers believe this charge should be thought of as one of the more serious category of crimes.
So what does the Crown have to prove to get a conviction, assuming no defence exists? As an example, if the Crown lays a charge under section 338 (2), the prosecutor must prove:
This last element is the required mental state or “guilty knowledge”, called the mens rea in technical language.
A further challenge for the prosecutor is that these elements must be proved “beyond a reasonable doubt”. That means that, on the evidence provided at the trial, there can be no reasonable explanation other than that the cattle were stolen by the accused.
Let’s look for a moment at some practical problems in proving an element of the charge. For example, who actually owned the cattle when they were stolen? If there is still a branded living animal, or if the animal remains show a brand, under s. 338(3) the owner of the brand is deemed to be the owner or the animal unless there is other evidence that he is not. If the animal is unbranded or the brand has been removed from the remains, proof of ownership may be more difficult. The animal’s owner can testify that he recognizes the animal if that is the case. Markings or tattoos can be given in evidence. Evidence of an unbranded calf mothering up to a branded cow can be given, and has been accepted as proof that the calf belongs to the owner of the cow.
If no proof of ownership is available, the Crown may lay its charge under s. 354, and will only have to prove that the accused was in possession and that was not lawfully entitled to it, even though the true owner cold not be identified.
Proving the element of possession is usually a matter of testimony by the RCMP or brand inspector. Since it is often the possession of the animal or meat which triggers the charge, unless there is solid evidence of possession, the charge will not be laid.
Proving the mental requirement can have obvious difficulties. In one case, there was a possibility on the evidence that the accused had been grossly careless, rather than actually deliberate, in attempting to brand as his own and then sell two calves from a neighbour’s cows which had wintered on his place. In that case the judge did not convict, on the basis that the required mental element was not proved.
In another case, where cattle remains were found in the possession of the accused and his story as to how he had come by them was proved untrue, the judge did convict.
The evidence given may be either direct, or circumstantial. Direct evidence is eyewitness evidence, as for example where the accused is seen slaughtering someone else’s livestock. Sometimes the accused will convict himself by giving a confession or statement to the RCMP. Circumstantial evidence is evidence indicating a crime, but short of first-hand evidence. For example, if a suspect was sound trying to run a few head branded with your brand through an auction, and had no believable explanation how they came into his possession, that person might be convicted without anyone having seen him take the livestock.
As a matter or evidence, there comes a time without actually catching the person re-handed, when a suspect is caught in a web of surrounding circumstances (circumstantial evidence) and is required to stand up and explain or be convicted.
It is clear from the evidence required to convict on a charge of cattle theft, that the odds of obtaining a conviction are better if the livestock are branded. Also frequent range checks are more likely to turn up evidence of theft when it is fresh and can be more successfully followed. A large factor in successful detection and investigation is the informant, most often anonymous. Most accused are caught because of anonymous tips. Maintaining the good will of other people using range areas can mean higher likelihood of apprehension and conviction.