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Return to First Part of Chapter


5. Fighting and Baiting

(a) Overview and Clarification

In Ch.5 "Related Offences" I discuss the 'ancillary' forms in which most criminal offences, including these animal-related provisions, may be committed. These normally include such forms as counselling, aiding and abetting, accessory after-the-fact and others - all of which are defined in relation to the main offence.

In addition to these 'generic' ancillary offence forms, the Code also sets out a specific ancillary-type offence as follows:
445.1(1)(b)
Every one commits an offence who

....

(b) in any manner encourages, aids or assists at the fighting or baiting of animals or birds;
Of course, 'encouraging, aiding or assisting' are all forms quite similar - if not identical - to the classic ancillary forms discussed in Ch.5. However the Code establishes these ancillary offences without anywhere setting out any main offence for 'fighting or baiting' of animals.

As it would be irrational to criminalize indirect forms of a behaviour without also criminalizing the direct forms, it is necessary to reconcile this seeming anomaly. This can be done fairly straight-forwardly if we view "fighting or "baiting" [in their direct, non-ancillary forms] as logically (and legally) encompassed within activities that cause "unnecessary pain, suffering and injury" under the more generic s.445.1(1)(a) (discussed immediately above).

However in Ch.5 I speculate that the offence is structured in this 'ancillary' way on the legal theory that any injury or distress 'caused' to animals and birds during fighting or baiting [which I below explain as a specific form of fighting] is actually directly 'caused' by other animals. Thus the need for the specific ancillary forms of the offence to capture human 'contribution' to the offence.

Of course under that theory, 'fighting or baiting' probably HAVE no direct offence forms - even under the general cruelty provision. While this may pose a problem for prosecutors deciding how to allege offences, it seems plain that human-initiated fighting and baiting activities are nonetheless criminalized - either in their direct or their ancillary forms.

In the following discussion I restrict consideration primarily to defining 'fighting' and 'baiting' as such. For the ancillary form readers should review Ch.5 "Related Offences".

(b) "Fighting"

What constitutes "fighting" can safely be equated with the common lay understanding of the term, without the need for great legal parsing or historical examination. It is animals set violently one against another - typically for human entertainment.
Note re Cock-fighting and Dog Fighting

Dog and cock fighting may be the most prevalent forms of animal fighting existing in Canada today. Note that 'cockfighting', like the more generic 'fighting and baiting' (which includes cock-fighting), is also expressly mentioned in the Code in another indirect form [see "s.10. Keeping Cockpits", below].

'Dog-fighting' on the other hand is not expressly mentioned in the Code at all, leaving any direct form of dog-fighting prosecution to be located in other generic provisions such as the general cruelty provision. Note also that CCC s.445 [see s.3 above, "Kept Non-Cattle Animals and Birds"] expressly mentions dogs in its 'kept animal' injury prohibitions.
(c) "Baiting"

The term "baiting" however is much more problematic and needs exploration. The problem is that the single term has two separate but related legal 'animal' meanings, only one of which has application in the present criminal law context.

"Baiting", as the term is used in the Criminal Code, refers to human entertainment practices of long-standing (back as far as the Romans, and commonly practiced in England during reigns including those of Henry VIII and Elizabeth I). These practices were very similar to fighting as described above (and could easily be subsumed within that legal definiton), but were characterized less by one-on-one fighting of animals of the same species (eg. dogs or cocks), and more on the chaining or tethering of one larger animal which is then beset by several animals of other species (again, commonly dogs). Thus we find references to "bear-baiting" and "bull-baiting". In this sense of the term the meaning 'baiting' is more akin to teasing, or 'goading' [a term which I will use to distinguish it from the second meaning it has, explained below]. I have found no modern cases in which the "goading" form of baiting has been prosecuted, likely as a result of its near-elimination as a form of entertainment.

The second meaning of 'baiting' is the more commonly understood present-day one, and is synonymous with 'luring by food'. Thus we find in several Canadian provincial wildlife statutes prohibitions on the 'baiting' of animals by the placement of food, typically so that the animals are enticed to specific locations where so-called 'hunters' lay in wait to shoot them. It is this meaning of the term [which I will call 'food baiting'] that was the subject of a regulatory prosecution in R v Vargas (BSSC, 1993). Food-baiting may presently be undergoing a similar 'social' extinction due to widespread revulsion - even amongst most hunters - against the lack of 'sport' or fairness in the practice, being little more than the amateur slaughter of a semi-tamed animal.

To be clear, 'baiting' as the term applies to s.445.1(1)(b) of the Code refers to the older, "goading" form of the practice, little distinct from 'fighting'. 'Food baiting' on the other hand, is also often illegal - though under provincial wildlife/hunting statutes.


6. Administering Poisonous/Injurious Substances to Domestic or Captive Wild Animals and Birds

(a) The Provision
445.1(1)
Every one commits an offence who

(c) wilfully, without reasonable excuse, administers a poisonous or an injurious drug or substance to a domestic animal or bird or an animal or a bird wild by nature that is kept in captivity or, being the owner of such an animal or a bird, wilfully permits a poisonous or an injurious drug or substance to be administered to it;
(b) Discussion

This provision makes it an offence to "administer() a poisonous or an injurious drug or substance to" [CCC 445.1(1)(c)]:
  • "a domestic animal or bird", or

  • "an animal or a bird wild by nature that is kept in captivity"
Like the general cruelty provision, the offence comes in two forms, varying with the relationship between the human and animal:
  • owners 'wilfully permitting the administering', and

  • everyone (including owners): 'administering'.
On the effect of this express 'ownership' offence on the "Colour of right" defence [Ch.4], see (d) below.

Prosecutions of this offence in the case law are few, perhaps due to the nature of the fact situations that they involve - most significantly euthanasia and animal research. Both of these areas are ones involving different social classes (veterinarians and researchers) from those in the agricultural environments in which SPCA's tend to operate.

(c) "Without Reasonable Excuse"

As is the case with the offences relating to "Kept Non-Cattle Animals and Birds" [s.3(d) above] there is an additional 'defence' under this provision, here the offence being conditioned by "wilfully, WITHOUT REASONABLE EXCUSE".

Normally any criminal offence may avail itself of any "LAWFUL excuse" as a defence, so "reasonable excuse" must mean something other than a legally-grounded exception [though it is hard to imagine a criminal-law standard more vague than 'reasonable'].

Well, if legal excuses are not covered within this term then neither are 'mistakes of law' [which are excluded anyway under the Code's negation of any 'ignorance of law' defences: CCC s.19]. Similarly, 'mistakes of fact' are defences anyway if they negate the mens rea (ie. 'I thought the blue button did that, I'm so sorry'). So it appears that "reasonable excuse" must have some meaning not defined by reference to the essential elements of an offence, which IMHO can only leave "moral" reasons.

If that conclusion is justified, then determination of what constitutes a "reasonable excuse" may draw on the same analysis used to inform the content of "unnecessary" under the general cruelty offence [see s.4(i) above].

Indeed, "morality" may be quite appropriate content for the term "reasonable excuse", given that the most common 'excusable' poisoning of an animal is chemical euthanasia. Accepted euthanasia practices include - but extend beyond - those covered by a "necessity" defence of preventing further suffering. They include the killing of 'surplus' animals such as are conducted by many animal shelters and municipal pound facilties, and owner-authorized killing of pet animals - sometimes, but not always, to prevent further suffering. Many such killings are driven by difficult human circumstances, or even convenience.

I note - give the specific owner-form of this offence - that it is logically exempt from the colour of right defence, if that defence is to be interpreted solely as a property-right [see Ch.4]. If that is the case then it is interesting to consider whether the chemical euthanasia of non-suffering animals by their owners meets the "reasonable excuse" test. Such an argument would be particularly weak if alternate care arrangements were available for the animal. This issue focusses once again on the moral issues that can arise in this animal criminal offence context. Recall the analogy drawn [in s.4(i) above] with the treatment of obscenity law in R v Butler (SCC, 1992) where "community standard of tolerance" - as a HARM-based standard - are a central element of the adjudication criteria.

As well, the existence of this "reasonable excuse" defence is another good statutory interpretation reason to read the "colour of right" defence [see Ch.4] down to a narrow ownership or property-related meaning - as otherwise redundancy would result between the two defences.

As noted above, another form of animal-poisoning and subjection to injurious substances is of course animal-testing by the cosmetics and pharmaceutical industries. The above analysis would suggest an argument for the illegality of such testing under a moral community-based 'harm' standard [as in the R v JS case, interpreting Menard] if the moral weight of the animal 'harm' caused by the testing is judged higher than the (often) trivial goal of a human purpose such as cosmetics testing.

(d) Effect of the "Ownership" Provision on the Colour of Right Defence

In Ch.4 I discuss at length the "colour of right" defence [CCC s.429(2)] that is generally available to all of the main animal offence provisions discussed in this chapter. In that discussion I reach the conclusion that it is at heart a 'property' or ownership defence.

However, as the present section respecting poisoning and administering injurious substances, expressly establishes a separate offence for "owners" (ie. "permitting ..."), the best legal conclusion seems to be that the 'colour of right' defence, at least in its "owner" form, is not available for this provision - as otherwise to allow it would render the 'owner' form of the offence meaningless.

That said, the "colour of right" defence may still have application in its more generic form: ie. "an honest belief in a state of facts which, if it existed, would be a legal justification or excuse", but in that form is little different from a "mistake of fact" defence, which is available to any criminal charge.

(e) Mens Rea

This offence is subject to the standard "wilfulness" mens rea discussed extensively in Ch.2.


7. Captive Bird Shooting (Canned Hunts)

(a) The Provision
445.1(1) Every one commits an offence who

(d) promotes, arranges, conducts, assists in, receives money for or takes part in any meeting, competition, exhibition, pastime, practice, display or event at or in the course of which captive birds are liberated by hand, trap, contrivance or any other means for the purpose of being shot when they are liberated; or

(e) being the owner, occupier or person in charge of any premises, permits the premises or any part thereof to be used for a purpose mentioned in paragraph (d).
(b) Discussion

This provision relates to behaviour akin to the sometimes provincially-prohibited 'food baiting' of game mammals (discussed above in s.5), in that it lacks any meaningful element of 'sport' to it. Essentially captive birds are released in close proximity to hunters, and are then shot as they try to fly away. Any skill demanded here is no greater than that required of regular trap and skeet shooting, so the killing and maiming is quite gratuitous.

More specifically, the offence [CCC 445.1(d)] consists of a broad range of behaviours participating in or furthering captive bird shooting events:
  • 'promoting, arranging, conducting, assisting in, receiving money for, or taking part in' ['participation or furthering']

  • 'any meeting, competition, exhibition, pastime, practice, display or event' ['events'] during which "captive birds are liberated by hand, trap, contrivance or any other means for the purpose of being shot when they are liberated" ['captive bird shooting'].
(c) 'Owner' Form of Offence

A related offence [CCC s.445.1(1)(e)] prohibits "being the owner, occupier or person in charge" of premises and using or permitting them to be used for the above-prohibited activities. This provision appears to be broad enough to capture indirect use of any premises (eg. an office for 'promoting or arranging'), thus placing a legal burden on owners, occupiers (tenants and licensees) and custodians of real property to ensure that no aspect of furthering captive bird shoots are conducted on 'their' property.

(d) Mens Rea

Unlike most of the main animal offences, this provision is NOT conditioned by the general "wilfulness" mens rea which is discussed at length in Ch.2.

That said, it is a criminal law provision which the courts will normally infer a mens rea requirement into, even if it is not stated expressly in the Code. There appears to be no reason why the 'standard' full intention mens rea should not apply, such that any intention to commit the acts or omissions which will naturally cause the prohibited events [here: participation or furthering of captive shooting events, or owner permitting use of premises for those purposes], should suffice. Of course, proof of direct intention to engage in a captive bird shoot would suffice as well.


8. Injury During Transportation

(a) The Provision
446(1)
Every one commits an offence who

(a) by wilful neglect causes damage or injury to animals or birds while they are being driven or conveyed; or

....

446(3)
For the purposes of proceedings under paragraph (1)(a), evidence that a person failed to exercise reasonable care or supervision of an animal or a bird thereby causing it damage or injury is, in the absence of any evidence to the contrary, proof that the damage or injury was caused by wilful neglect.
(b) Discussion

The acts reus of this offence is 'causing damage or injury to animals or birds while they are being driven or conveyed' [CCC 446(1)(a)].

It is applicable to all animals - be they wild, captive, feral, domestic or otherwise.

(c) Mens Rea Varied

The applicable mens rea for this provision varies from the usual "wilful", to one of "wilful neglect". Recalling my conclusion in Ch.2 that "wilfulness" alone constitutes "advertent gross negligence", and the lack of any significant jurisprudence on the issue, I can only conclude that the offence is targetted at negligent omissions (ie. 'neglect') rather than negligent acts. That seems consistent with the nature of most transportation fact situations, being ones of neglect (ie. omissions). That said, it is open to any court to interpret an overt act or acts as 'neglect' in any specific context.

Further, this 'injury during transport' provision is also subject to a mens rea evidentiary 'short-cut' provision [CCC 446(3)] akin to that of CCC s.445.1(3) discussed in relation to the general cruelty offence [see s.4(c), above]. That is, "evidence that a person failed to exercise reasonable care or supervision of an animal or a bird thereby causing it damage or injury is, in the absence of any evidence to the contrary, proof that the damage or injury was caused by wilful neglect." In other words, initial evidence of negligence and causation creates a rebuttable presumption that the harm was caused by "wilful neglect".

This 'short-cut', when applied, makes the offence partially similar to what has been discussed in Ch.2 as a "strict liability" offence, in that it is triggered initially by a showing of causation of the harm (ie. the prohibited event) - and offering the defendant the possibility of avoiding conviction if they meet their burden of showing "due diligence" (ie. non-negligence).

A similar provision under the general cruelty offence [s.4 above] was considered in R v Shand (OCJ, 2007). There the court stated: "(e)vidence to the contrary that is adduced to rebut the presumption in s. 446(3) with respect to a charge under s. 446(1)(a) [now 445.1(1)(a)] must tend to show that the accused did not wilfully cause or permit unnecessary suffering. The standard of proof that must be met to rebut the s. 446(3) presumption is reasonable doubt [R v Boucher [2005] SCJ # 73].


9. Abandonment or Inadequate Care of Domestic or Captive Wild Animals or Birds

(a) The Provision
446(1)
Every one commits an offence who

(b) being the owner or the person having the custody or control of a domestic animal or a bird or an animal or a bird wild by nature that is in captivity, abandons it in distress or wilfully neglects or fails to provide suitable and adequate food, water, shelter and care for it.
These related but distinct offences ['abandonment in distress' and 'inadequate care'] [CCC s.446(1)(b)] apply to protect domestic animals or birds, and wild animals or birds in captivity.

However these offences ONLY apply against "owner(s) or person(s) having the custody or control" of such animals.

(b) Abandonment in Distress

The elements of the first form of this offence consist of abandoning the animal in distress. There is no definition of 'distress' in the Code, although any court is likely to have common sense recourse to the enumerated 'care' duties applicable to the second form of the offence (ie. absence of "suitable and adequate food, water, shelter and care ...".

Similarly, "distress" is commonly used as the primary animal welfare criteria in several provincial statutes (eg. the Alberta Protection Act where it means in a condition of needing food, water, shelter, medical care and protection from abuse). On this issue see also "Custody and Control" in sub-sec. (d) below.

There is no mentioned mens rea element ("wilfulness" is not specified) so the criminal law will likely default to full intention to commit the acts or omissions which naturally result in the 'abandonment in distress' (typically simple leaving the animals uncared for). Knowledge - or at least foreseeability - of 'distress' will likely be required as a necessary part of the mens rea, although it can likely be inferred from failure to make arrangements for substitute care during an absence.

(c) Inadequate Care

Next to the general cruelty ("unnecessary pain, suffering or injury") offence [s.4 above], charges for "inadequate care" (commonly, "neglect") may be the most common of the animal-related prosecutions. Of these, food animal neglect is by far the most common and recurring fact situation.

The prohibited events here are a failure to provide "susitable and adequate food, water, shelter and care" for an animal. If I am correct in equating the absence of these necessities with 'distress' (which seems safe) as that term is used in the abandonment form of the offence, then the only apparent difference between the two forms of the offence is that the owner or custodian is still present while they commit the "inadequate care" offence (as opposed to having 'abandoned' the situation). Some fact situations, for example prolonged absence with an intent to return (or actual return), may stress the distinction between the two forms.

Note that this second form of the offence does have an expressly stated mens rea: ie. "wilfully". While a fuller quote: "wilfully neglects or fails", suggests a superficial similarity to the mens rea discussed above regarding the "Injury During Transportation" provision (ie. "wilful neglect") [see s.8 above], I think the better interpretaiton is that (in the present provision) the term 'neglect' (along with 'fail') is properly an aspect of the actus reus. Thus the offence consists of "wilfully" NOT "provid(ing) suitable and adequate food, water, shelter and care". Neglect as used here has the connotation of simple lack or absence of care, rather than a moral fault; the moral fault is located in the "wilfulness" mens rea.

(d) "Custody or Control"

As noted above, these offences ONLY apply against "owner(s) or person(s) having the custody or control" of such animals.

"Ownership" alone includes those who are in a natural position of responsibility with the animal to owe it some duty of care. However "custody or control" is a much more transitory relationship with an animal, and one which - due to its sometimes casual treatment - may give rise to criminal liability in unexpected situations.

For instance, under this provision anyone accepting 'custody or control' of an animal - by that act alone - now has on-going positive duties to an animal (with respect to "food, water, shelter and care") and negative duties (ie. not to "abandon it in distress").

The 'custodial or control' relationship might be safely ended with wild animals that are NOT in 'distress' when they are unilaterally left (ie. 'abandoned'), although what constitutes 'distress' in such situations is fraught with uncertainty. For example, nuisance animal 'removal' services commonly relocate animals to foreign 'natural' environments completely unsuited to their needs and capacities, in which many can reasonably be expected to die as a result. Expert naturalist evidence may be required to inform the meaning of 'distress' in such cases. Provincial 'distress' standards may also be looked to for this purpose.

However there may be no ability to unilaterally end a 'custodial or control' relationship with a domestic animal, as any simple 'release' into any non-custodial environment (ie. on the street) likely by that act alone constitutes 'distress' due to the combination of the animal's generational loss of natural self-sufficiency and the absence of its long-lost ancestral natural environment.

One very practical situation in which this law regularly applies is in residential tenancy evictions. In that case the landlord retaking possession of premises in which a pet animal resides is without doubt in a 'custodial or controlling' relationship to the animal. So - I have argued - is the sheriff effecting the eviction:

Residential Tenancies (Ontario): Ch.6, s.8: "Early Termination for Cause: Animals in the Premises"

(e) Case Law

. R v Vieira

R v Vieira (BC Prov Ct, 2006) was an "inadequate care" (neglect) case respecting numerous horses, pigs, dogs and rabbits.

The defendant's testimony that he had both left adequate food and water for a two week absence, and that he had made arrangements for a neighbour to care for the animals was not accepted. Veterinary and photograph evidence plainly demonstrated prolonged neglect for well over the two weeks' absence, including emaciation of the dogs reflecting 60 days without food, emaciation of horses reflecting 100 days without food such that they were unable to stand, and lack of current water and food availability with respect to all the animals. The defendant was convicted.

. R v Pryor

R v Pryor (OCJ, 2007) involved numerous counts of "inadequate care" respecting horses and a bull in northern Ontario. The found facts indicated lack of adequate food and water, lack of dry bedding, fecal accumulation, and untreated medical conditions - including emaciation. In the course of investigation the OSPCA inspector issued orders to comply, seizures were made, and euthanasia was performed on a blind mare. The court found the defendant had wilfully neglected his duties, and further that he was effectively in denial of the situation:
... on balance I find that he has either convinced himself that his conduct was satisfactory or that he is wilfully blind to the facts. His approach, in large part, is simply to contradict evidence which implicates him in the natter of neglectful or bad care of the animals. There is little acceptance by Mr. Pryor of conduct which may have led to the conditions in which the animals were found both inside or outside and or the physical deterioration of some of them.
Convictions were entered on four of sixteen counts. This was less the result of weak evidence on some of the counts and more a consequence of the court finding that the counts as structured over-itemized the specific ways in which the neglect was committed.

. R v Bakic

R v Bakic (Sask Prov Ct, 2004) was an "inadequate care" prosecution regarding some 200 cattle. Numerous dead cattle were found on the premises. The evidence supported lack of food, water, excessive crowding (which the court addressed under 'shelter') and lack of medical care. When feeding was done it was not by way of feeding troughs, but by dumping feed on the ground so that weaker animals were excluded. Some euthanizations were performed. A prior related conviction had been registered, and the defendant has expressed that this was to be his last year in the cattle business. The defendant was convicted.

. R v Conforti

R v Conforti (Ont CA, 2000) [argued by the author for the Peel Humane Society] involved counts of "injury during transportation" and "inadequate care" respecting a dog dragged behind a truck. All counts were eventually dismissed on inadequate evidence. On the "inadequate care" count, where the evidence was that the dog was taken to the veterinarian by a third party (the defendant following separately), the court commented:
On the cross-appeal, the Peel Humane Society advanced in this court the argument that Mr. Conforti should have been convicted on the second count because he failed to authorize medical treatment for the dog once it was in the veterinarian's office. The evidence about what Mr.Conforti was prepared to do at that stage is somewhat conflicting but, at minimum, it could not support a finding that he wilfully neglected or failed to provide suitable and adequate care for the animal. Accordingly, the Society's appeal with respect to the second count must fail.
. R v Galloro

R v Galloro (OCJ, 2006) involved both "general cruelty" and "inadequate care" charges respecting dogs and some farm animals on an elderly couple in a "hobby farm". There was a history of prior and related OSPCA orders. Convictions were entered against each of them, though not all on the same charges. One of the cruelty charges related to a misguided effort by one of the defendants to relieve epilepsy by lacerating a dog's ears to reduce blood build-up.

The court commented on the inadequate care charge that:
In assessing whether the provision of food and care was "suitable and adequate" on a criminal standard under s.446, in my view the Crown must prove more than a slight deviation from reasonable care. Evidence of a substantial or marked departure from reasonable care is required to prove the actus reus of the offence in s. 446(1)(c) [now 446(1)(b)] beyond a reasonable doubt.
Another count of general cruelty was grounded in the defendants failure, after direct veterinary advice to provide care, to do so:
Both veterinary doctors found Pina to be in very poor condition. She was suffering from the cuts to her ears, her very low weight, her seizures and she was found in an unsanitary condition. Both Mr. and Mrs. Galloro knew that Pina was suffering and that immediate emergency veterinary care was required. Their refusal to bring the dog to emergency care continued and extended that suffering. I find that the fact that they both refused the doctor's instructions and they then refused an OSPCA compliance order to take the dog to veterinary care shows that they both wilfully caused further unnecessary suffering to Pina as alleged.
(f) Effect of "Ownership" Element on the Colour of Right Defence

In Ch.4 I discuss at length the "colour of right" defence [CCC s.429(2)] that is generally available to all of the main animal offence provisions discussed in this chapter. In that discussion I reach the conclusion that it is at heart a 'property' or ownership defence.

However, as the present 'abandonment in distress' and 'inadequare care' offences are applicable ONLY to owners and custodians, the best legal conclusion seems to be that the 'colour of right' defence, at least in its "owner" form, is not available for this provision. If it were, prosecutions would always be vulnerable to the colour of right defence, thus rendering the offences meaningless.

That said, the "colour of right" defence may still have application in its more generic form: ie. "an honest belief in a state of facts which, if it existed, would be a legal justification or excuse", but in that form is little different from a "mistake of fact" defence, which is available to any criminal charge.


10. Keeping Cockpits

(a) The Provision
447(1)
Every one commits an offence who builds, makes, maintains or keeps a cockpit on premises that he or she owns or occupies, or allows a cockpit to be built, made, maintained or kept on such premises.

....

447(3)
A peace officer who finds cocks in a cockpit or on premises where a cockpit is located shall seize them and take them before a justice who shall order them to be destroyed.
(b) Discussion

The Code does not define a "cockpit", but there are no doubt standard components to them known to the sub-culture of cock-fighting (and expert witnesses such as SPCA staffers). Logically any facilities designed to accomodate cockfighting should meet the definition.

The actus reus of this offence is the 'building, making, maintaining or keeping of a cockpit".
Note:
This of course is an indirect form of prohibition. As I note above [s.5(b) "Fighting and Baiting: Fighting"] there is no expressly stated direct offence of 'cockfighting'. In that discussion I reason that the offence is EITHER meant to exist in this form only OR that the direct form is included in the general cruelty provision (or elsewhere). Readers should review that discussion.
The offence may be committed only by the owner/occupier of the premises, either directly - or indirectly by them permitting another to commit the offence on the owned or occupied premises.

(c) Mens Rea

There is no specified mens rea for this offence, so the criminal law will normally default to full intention. This is fitting for direct offenders as one can hardly establish a cockpit with anything less than a full intention to do so, but does raise the 'normal' wilfulness mens rea standard for those owner/occupiers who only 'permit' the activity. Perhaps a more appropriate (and lower) negligence-like standard will be applied for those 'permitting' only.

(d) Effect of "Ownership/Occupier" Element on the Colour of Right Defence

In Ch.4 I discuss at length the "colour of right" defence [CCC s.429(2)] that is generally available to all of the main animal offence provisions discussed in this chapter. In that discussion I reach the conclusion that it at heart a 'property' or ownership defence.

However, as the present 'keeping a cockpit' provision can only be committed by an owner or occupier of the property, the best legal conclusion seems to be that the 'colour of right' defence, at least in its "owner" form, is not available for this provision. If it were then this express 'owner/occupier' offence would be rendered meaningless.

That said, the "colour of right" defence may still have application in its more generic form: ie. "an honest belief in a state of facts which, if it existed, would be a legal justification or excuse", but in that form is little different from a "mistake of fact" defence, which is available to any criminal charge.

(e) Duty to Destroy Cocks

Note that any peace officer finding cocks "in a cockpit or on premises where a cockpit is located" is bound by law to "seize them and take them before a justice who shall order them to be destroyed" [CCC 447(3)]. This is a duty apparently unrelated to any charges or convictions under the main cockpit offence.

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