Judge made no error in acquitting man of animal cruelty
Newfoundland and Labrador Supreme Court Justice Peter O’flaherty denies Crown’s appeal of Robert Picco’s acquittal
A provincial court judge did not err in law when she acquitted Robert Picco of eight animal cruelty charges against four beagles, a Newfoundland and Labrador Supreme Court judge ruled this week.
Justice Peter O’flaherty rejected the Crown’s request to overturn the Portugal Cove-st. Philip’s man’s acquittal and send him back to court, either for sentencing or a new trial, finding the trial judge had not misapplied the law on the mental element of the offences and refusing to interfere with her interpretation of the dogs’ suffering.
At Picco’s trial, the court heard animal-rescue volunteers had visited his home after being contacted by his brother and found the dogs in a pen on the property, allegedly with no food or water and in various states of malnutrition. Picco surrendered the dogs to volunteers with the organization, who brought them to a veterinarian and got police involved.
At the time they were removed from Picco’s possession, a vet who examined the dogs scored them each as a one out of five on a body condition scale and noted two of them had skin infections. Surprisingly, the doctor wrote, the dogs had no other health issues and recovered within two months. They have all since been adopted.
Picco testified he had lived at the property and had cared for the dogs until his mother went into hospital and he turned his attention to caring for her. A falling out with his brother resulted in his arrest on an uttering threats charge and he spent two days in custody before being released with an order to stay away from the residence, and he was therefore unable to gain access to the dogs. Picco contacted rescue volunteers upon his release and asked if they could foster the dogs for a few days, before later calling back to say he had found a foster home.
The trial judge determined Picco owed a duty of care to his dogs, but his behaviour didn’t meet the definition of reckless in the context of the criminal charges. Carelessness does not amount to recklessness, she said, and without that determination, a conviction was impossible.
She also found the Crown had not proven the beagles had been suffering, noting they were deemed to have no other health issues apart from malnourishment, despite testimony from the former chief veterinary officer that the animals would have likely been near death.
O’flaherty heard the Crown’s appeal in March and dismissed it Monday, May 9.
“The trial judge, in my view, properly considered the evidence of (Picco) on the issue of whether he had acted ‘wilfully,’ which, under the extended meaning of the term as set out (by law), includes ‘recklessly,” O’flaherty wrote. “Based on this evidence which she accepted was truthful, the trial judge held that the Crown had not proved the mental element of (the offence) beyond a reasonable doubt.”
The trial judge had been satisfied that Picco’s evidence had created a reasonable doubt that he had wilfully caused the dogs unnecessary pain, suffering or injury, O’flaherty noted, determining no error by the trial judge in applying the law in that aspect.
As for the dogs’ suffering, O’flaherty refused to interfere with the trial judge’s finding of fact, saying he could only do so if the Crown had demonstrated it was clearly wrong, unsupported by evidence or otherwise unreasonable.
Photos of the emaciated dogs had been submitted by the Crown at trial and stressed on appeal.
“The trial reasons make clear that the trial judge was aware of the impact of the photographs and (she) acknowledged that it was very difficult not to be emotionally affected by the pictures of the dogs,” O’flaherty wrote. “The trial judge correctly held, however, that pieces of evidence are not to be evaluated in isolation from each other.”
Another trial judge might have come to a different conclusion on the evidence, O’flaherty said, but it was for the presiding judge at trial to make the ruling.
O’flaherty also rejected the Crown’s arguments that the trial judge had not given sufficient explanation for rejecting the provincial veterinarian’s decision, saying her trial reasons explain why she acquitted Picco and provide public accountability.