Hogwash? The trouble with mischief


The case of animal rights activist Anita Krajnc has recently made national and international news headlines (see, for instance: http://www.theguardian.com/world/2015/nov/30/canada-woman-10-years-prison-for-giving-pigs-water and http://www.theglobeandmail.com/news/national/ontario-woman-charged-after-giving-water-to-pigs-headed-to-slaughter/article27079761/).

On a hot day in June 2015, members of Toronto Pig Save, an animal rights group, were holding a “vigil” in Burlington, Ontario, for pigs that were being transported to a slaughterhouse. Dr. Krajnc, a founding member of the group, was standing on a concrete median, next to where a transport truck carrying a load of pigs on their way to slaughter stopped at a light.

Although the video (https://www.youtube.com/watch?v=ekhIzpKkHZo) of the incident posted by Toronto Pig Save seems to have been edited, it appears that Dr. Krajnc and the truck driver got into a brief though somewhat heated dispute in regard to Dr. Krajnc’s wish that the pigs be provided with water. During this interaction, Dr. Krajnc began to give bottled water to some of the pigs. (Because the video seems to have been edited, it is unclear how long this interaction lasted.)

In response to Dr. Krajnc’s biblical allusion (“Jesus said, ‘If they are thirsty, give them water’,” which, by the way, seems to overlook the cursing of a large group of swine in the Gospel of Mark…), the truck driver said, “No, you know what, these are not humans, you dumb frickin’ broad!” The driver then called the police (despite Dr. Krajnc’s request that he “call Jesus” instead…). Dr. Krajnc was later charged with mischief, which is a criminal offence.

 

Section 430(1) of the Criminal Code states: “Every one commits mischief who willfully (a) destroys or damages property; (b) renders property dangerous, useless, inoperative or ineffective; (c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or (d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.”

 

It is important to bear in mind that, according to the current state of Canadian law, the pigs would be considered property, despite the fact that they are sentient beings and despite Criminal Code prohibitions against causing “unnecessary pain, suffering or injury to an animal” (which seems to imply that there is such a things as “necessary” pain, suffering, or injury…). While the law will no doubt evolve in this area over time, as we make progress with regard to our understanding and appreciation of animals (see, for instance: http://www.theguardian.com/us-news/2015/nov/19/national-institutes-health-end-chimpanzee-research), at present, animals are generally considered nothing more than property.

With this in mind, there are some important questions to consider in evaluating whether Dr. Krajnc’s actions are sufficient, from a strictly legal standpoint, to warrant the charge against her. Since not all necessary information is in the public domain, it is impossible for an observer to make a full determination in this regard. (For instance, it would be important to know what impact—if any—Dr. Krajnc’s actions had on the owner’s ability to sell his pigs for food, in light of food and safety regulations.)

Mischief is an extremely broad criminal offence—in many circumstances, it could be argued that the law is overly broad and vague. For instance, according to one of the leading cases in this area, R v Nicol, 2002 MBCA 151, the Manitoba Court of Appeal held that it was appropriate to use a subjective standard in determining whether an accused’s actions obstructed, interrupted, or interfered with an individual’s lawful use, enjoyment, or operation of property. As long as the property owner or user is not in breach of any law, rule, or regulation in his use, enjoyment, or operation of property, if his use, enjoyment, or operation of property is interfered with, that could be the basis for a finding of guilt. (The term “enjoyment” extends to “the satisfaction that this property can provide to that person” (see the quotation contained in para 14 of R v Nicol).)

Hypothetically speaking, if a pig owner who follows all necessary rules and regulations gets great enjoyment out of sending his thirsty pigs to slaughter, could interference with the pigs’ status—resulting in a corresponding deprivation of enjoyment to the owner—be sufficient to ground a finding of guilt with respect to a charge of mischief? Could interrupting or delaying the movement of a transport truck—adhering to all legal requirements—on the way to a slaughterhouse constitute mischief? Could providing water to pigs just before their slaughter impact the owner’s ability to sell them to meat processers? These remain open questions.

The courts are often quite pragmatic in mischief cases and will generally only find accused individuals guilty in clear-cut or extreme cases. But it is also important to bear in mind that the Crown plays a vital role in determining which cases will actually proceed to court.

 

The Crown must constantly reassess each case by asking two questions (see the Ontario Crown policy manual: https://www.attorneygeneral.jus.gov.on.ca/english/crim/cpm/2005/ChargeScreening.pdf).

 

  • The first question is: Is there a reasonable prospect of conviction?
    • According to the Crown policy manual, “The threshold test of ‘reasonable prospect of conviction’ is objective. This standard is higher than a ‘prima facie’ case that merely requires that there is evidence whereby a reasonable jury, properly instructed, could convict. On the other hand, the standard does not require ‘a probability of conviction,’ that is, a conclusion that a conviction is more likely than not.”
    • If the answer to this first question is “no,” the prosecution must be discontinued.

 

It will be interesting to see whether the Crown will decide to continue with the prosecution against Dr. Krajnc. Although there is without a doubt a great deal of public pressure from both sides (from the tens of thousands of people who have petitioned the government to withdraw the charge against Dr. Krajnc and from members of the meat industry, who are surely hoping for Dr. Krajnc to be made an example of), it is important to recognize that Crown Attorneys (even those working within a Ministry of Justice, which is headed by an elected Justice Minister) are not supposed to be influenced by political considerations in carrying out their duties. After all, as Howard Cosell, the great American sports journalist, stated, “What’s right isn’t always popular. What’s popular isn’t always right.”


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About Brandon Trask

Brandon Trask is a regular blog contributor and former colleague of Daniel Murphy and currently a doctoral student at the University of Toronto’s Faculty of Law. He was formerly a Crown Attorney in Newfoundland and Labrador. Brandon holds law degrees from the University of Manitoba and the University of Toronto.