(To be published in Beef in BC on July 3rd, 2013)
City dwellers who move to the country often talk about having more room, peace and quiet, and freedom, from what they had in the city.When the freedom they seek includes the freedom to allow their dogs to roam, uncontrolled, the results can be unhappy—for the rural resident and dog owner, the dog itself, and not least for the adjacent rancher who has seen fit to dispatch the dog. Generally this takes place when the dog is on the rancher’s property and the rancher believes that the dog has been worrying livestock.
This article is the first of a series about the legal consequences of interaction between marauding dog and protective rancher. This article talks about how the issue gets into court. Our next article in the following issue of Beef in BC will look at the defences to court action by the dog owner or the Crown. The case of R. v. Robinson, a criminal charge for killing a dog, is now in process in Provincial Court in Kamloops. If the judge makes his decision in this case before the deadline for the next issue of Beef in BC, we will include a review of it in our next article. Otherwise we will make a case comment later, when the decision is published.
The dog’s owner has turned the dog loose, the dog has chased cattle, and the rancher has taken action, resulting in the dog’s death, the dog’s owner objects—how do these issues get to court? There are two paths to court: the dog’s owner can sue the rancher for damages; or the police and Crown can charge the rancher criminally.
The dog’s owner has the right to sue the rancher for the “torts” of “trespass to chattels” or “conversion”.
A “tort” is a wrong against a private individual or entity (as opposed to a crime, which is a wrong against the populace as a whole, as represented by the state).“Trespass to chattels” comes from old British common law (judge-made law through case decisions, rather than legislature-made law through statutes). A chattel is moveable personal property, so an animal which is owned by someone, is a “chattel”.
“Trespass to chattels” occurs where the person being sued (the defendant) directly and intentionally or negligently interferes with a chattel in the possession of the person making the claim (the plaintiff). “Conversion” occurs where the defendant does something that permanently removes the plaintiff’s property from the plaintiff, or deals with the property in a way that denies the plaintiff owner’s rights to the property. No criminal or wrongful intent is required, merely the intention to remove the property. So killing a dog which is owned by another, effects a permanent removal of the dog from the owner and the owner can claim damages for “conversion”.
If the plaintiff claims for trespass to chattels or conversion, the plaintiff must prove damages, including the cost of repair (veterinary bills) for the dog if injured and treated, or the value of the dog if it is killed. Either of these actions will end up in civil court, usually the Small Claims Division of the Provincial Court of British Columbia, with a maximum claim level of $25,000.
If the circumstances are such that the police and Crown counsel office believe that a criminal charge is warranted, the rancher will likely face charges under section 445(1)(a) of the Criminal Code:
445. (1) Every one commits an offence who, wilfully and without lawful excuse, (a) kills, maims, wounds, poisons or injures dogs, birds or animals that are not cattle and are kept for a lawful purpose; or (b) places poison in such a position that it may easily be consumed by dogs, birds or animals that are not cattle and are kept for a lawful purpose. Punishment (2) Every one who commits an offence under subsection (1) is guilty of (a) an indictable offence and liable to imprisonment for a term of not more than five years; or (b) an offence punishable on summary conviction and liable to a fine not exceeding ten thousand dollars or to imprisonment for a term of not more than eighteen months or to both.
445. (1) Every one commits an offence who, wilfully and without lawful excuse,
(a) kills, maims, wounds, poisons or injures dogs, birds or animals that are not cattle and are kept for a lawful purpose; or
(b) places poison in such a position that it may easily be consumed by dogs, birds or animals that are not cattle and are kept for a lawful purpose.
(2) Every one who commits an offence under subsection (1) is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) an offence punishable on summary conviction and liable to a fine not exceeding ten thousand dollars or to imprisonment for a term of not more than eighteen months or to both.
The Crown must be able to prove the following elements in order to get a conviction (in the absence of a defence) for killing a dog
(a) the killed or injured dog must have been kept for lawful purposes; (b) the dog must be killed; (c) the accused must have intended to kill the dog; and (d) there is no lawful excuse for the accused’s actions.
(a) the killed or injured dog must have been kept for lawful purposes;
(b) the dog must be killed;
(c) the accused must have intended to kill the dog; and
(d) there is no lawful excuse for the accused’s actions.
In our next article, we will go through the defences to civil action or criminal charge.
Brian Vickers is a third-year student in Thompson Rivers University Faculty of Law.