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R. v. Linder
1 O'HALLORAN J.A.:— I concur in the reasons for judgment of my brother Bird, and would allow the appeal accordingly. 2 ROBERTSON J.A.:—The appellant was convicted on a charge laid under Code s. 542 (a) [as amended by 1935, c. 56, s. 10, and 1938, c. 44, s. 35] of unlawfully and unnecessarily abusing a horse. The horse was a bucking horse and was being used in a bucking contest in a rodeo. The procedure was to place the horse in a "chute" with a "flank strap" loosely around that part of his body, near his hind legs, and when the door of the chute was opened to let the horse out the flank strap was drawn tight, which had the effect of making the horse buck more strenuously. The strap was not fastened in any way, so that the effect of the bucking, which lasted for about 10 seconds, was to loose the strap. The bucking strap was lined with sheep skin which the learned judge said was only to save the horse being hurt by chafing, which might occur in the use of an unprotected leather strap. He found that the horse in question was a bucking horse and that "the use of the strap does at least excite or irritate the horse to more strenuous bucking in its struggle to unseat its rider, and that is an abuse of the horse." He further said that the use of the strap was an unnecessary abuse of the horse. With respect, I do not think what was done in this case could be said to be abusing the horse. The horse suffered no ill effects from the use of the strap. It could not be said that there was anything in the nature of cruelty or ill-treatment. 3 I would allow the appeal. 4 BIRD J.A.:—The appellant was convicted before His Honour Judge Lennox of an offence under Code s. 542(a), i.e., that he unlawfully did unnecessarily abuse a domestic animal, to wit, a horse. 5 Section 542 (a) [as amended by 1935, c. 56, s. 10, and 1938, c. 44, s. 35] reads in part as follows: "Everyone is guilty of an offence ... who"(a) wantonly, cruelly, or unnecessarily ... abuses ... any ... domestic animal ... or who by wantonly or unreasonably doing ... any act, causes any unnecessary suffering ... to any such animal." 6 The charge was laid by an officer of the Society for the Prevention of Cruelty to Animals and arose out of the treatment accorded a horse in a bucking contest, being one of the events in a rodeo show held in Vancouver, B.C., on 24th May 1948. 7 Two specific acts of abuse were alleged in the Court below (1) of wounding the animal by the use of spurs; (2) abusing the same animal by the use as part of the horse's equipment of a "bucking strap." 8 The learned judge found that the wounding alleged in act No. (1) above was caused by the bite of another horse while the animals were in transit to Vancouver and so negatived that allegation. He held that the use of the bucking strap constituted an unnecessary abuse of the horse, and found "as a fact that the use of the strap does at least excite or irritate the horse to more strenuous bucking." 9 The record shows that the bucking strap employed on the occasion in question consisted of a leather strap three inches wide, lined on the inner side with sheep's wool, and placed in the form of a cinch in a position back of the horse's belly, and forward of its rear legs; the strap being pulled tight at the moment when the animal left the chute, but so adjusted that it became looser as the animal bucked. 10 In my opinion the intent of the section is to make it an offence to cause unnecessarily substantial suffering to any animal. 11 Support is to be found for this conclusion in the following decisions under 12 & 13 Vict., c. 92. In Ford v. Wiley (1889), 23 Q.B.D. 203, 58 L.J.M.C. 145, 16 Cox C.C. 683 at 689, Coleridge C.J. defined the term "abuse" as used in that statute to mean "substantial pain inflicted upon it" and "unnecessary" as "inflicted without necessity". In the same case Hawkins J. at p. 695 said two things must be proved: First, that pain and suffering has been inflicted in fact, and, secondly, without necessity or, in other words, without good reason. Grove J. (Lindley J. concurring) in Swan v. Sanders (1881), 50 L.J.M.C. 67, 14 Cox C.C. 566 at 570, defined these terms as "unnecessary ill-usage by which the animal substantially suffers". 12 The facts as found by the learned judge do not in my opinion amount to a finding that pain was inflicted upon the horse or that it suffered substantially by the manner in which the bucking strap was used, nor does the evidence adduced below, in my opinion, justify a finding that the use of the strap did more than "excite or irritate the horse to more strenuous bucking". No injury was thereby inflicted even to the extent of causing an abrasion of the animal's skin. 13 In these circumstances I do not consider that the conviction for unnecessarily abusing the animal can be sustained. I would therefore set aside the conviction and allow the appeal.
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