Mens Rea for Animal Cruelty Offences after R. v. Gerling: A Dog's Breakfast

(2016) 26 Criminal Reports (7th) 267

9 Pages Posted: 14 May 2016

See all articles by Peter Sankoff

Peter Sankoff

University of Alberta - Faculty of Law

Date Written: May 13, 2016


For a variety of reasons, appellate decisions that consider Canada’s criminal prohibitions against animal cruelty don’t come along very often. The leading decision on s. 445.1 of the Criminal Code was written by Justice Antonio Lamer, as a member of the Quebec Court of Appeal, in 1978. There has not been an appellate level decision of any consequence on the substantive law since. Until now, that is. In R. v. Gerling, the British Columbia Court of Appeal was given the opportunity to provide some much needed insight into the required mental elements for the two most significant animal cruelty provisions: wilfully causing unnecessary suffering (s. 445.1(a)) and wilfully causing neglect (s. 446(1)(b)). Instead, the Court largely ignored the mens rea elements of the offence, deciding the case by focusing narrowly upon the facts and a rarely utilized legal presumption contained in s. 445.1(3). Moreover, what the Court did provide was unhelpful and confusing.

Sadly, the consequence of this much-anticipated decision is likely to be more of what animal advocates and criminal lawyers alike have become used to: inconsistent and puzzling jurisprudence concerning the animal cruelty provisions. Given the unwillingness of appellate benches to provide clarity and coherence to this area of the law, it is well past time for Parliament to recognize that the Code’s cruelty to animals’ provisions are simply unsalvageable in their current state. To make animal cruelty law understandable to judges and give accused persons fair notice of what constitutes such cruelty, these troublesome clauses must be revamped. It’s time to bring Canada’s animal cruelty legislation into the 21st Century.

Suggested Citation

Sankoff, Peter, Mens Rea for Animal Cruelty Offences after R. v. Gerling: A Dog's Breakfast (May 13, 2016). (2016) 26 Criminal Reports (7th) 267. Available at SSRN:

Peter Sankoff (Contact Author)

University of Alberta - Faculty of Law ( email )

Edmonton, Alberta T6G 2H5

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