Judge upholds conviction, sentence in animal cruelty case

Photo: Brendan Kergin

A B.C. woman has lost her appeal to have her 10-year ban on animal ownership lifted. 

On July 24, 2019, Cheryl McKinlay was convicted of willfully causing unnecessary pain, suffering or injury to a large number of her farm animals, according to court documents, by not providing them with adequate food, water, shelter and care.

The conviction stems from an SPCA visit to McKinlay's property on Dec. 7, 2017, in response to a complaint. Staff noticed "numerous deficiencies" in the health and safety of the animals, states a Sept. 17, 2020 decision by Kamloops Justice Len Marchard.

McKinlay was provided with a notice of compliance and was cautioned that if she didn't comply, her animals may be removed and charges may be laid. 

The SPCA returned four days later, court documents show, and found that the animals appeared to be in the same condition. A search warrant was executed the next day (Dec. 12) and 74 animals were seized as a result. Many of the animals were severely underweight. Some were emaciated.

The trial judge handed McKinlay a four-month community sentence. She was also banned from owning, having custody or control, or residing in the same premises as an animal or bird for a decade. The latter punishment was given because "Ms. McKinlay did not appreciate the risk she posed to the care of animals." The judge made an exception to her order and allowed her to live with her five cats and two dogs.

McKinlay appealed her conviction on the basis that she was involved in homestead farming, and that the SPCA, Crown, her lawyer and the court focused on industrial farming standards. 

"Ms. McKinlay submits that the Crown's evidence at trial was either misleading or misinterpreted," Marchand says in his decision.

McKinlay also argued in her appeal that she had what's called fresh evidence (not new evidence, but evidence that was available at the time of the trial but for whatever reason was not presented to the court). Documents included pictures related to homestead farming, body condition scoring for pigs and sheep, photographs of healthy animals that were not hers (for comparison purposes), and photographs of her property and her animals.

McKinlay's appeal also criticized her trial lawyer for inadequate representation.

Meanwhile, court documents state McKinlay argued the 10-year animal ban "an unfit sentence," given her lengthy association with animals.

In looking at the case again, Marchard found most of McKinlay's fresh evidence on appeal was not "fresh" at all.

"The Crown and defence witnesses were extensively examined and cross-examined (including by reference to many of the photographs Ms. McKinlay attached to her affidavits) concerning her property, efforts and animals," Marchand said. "The evidentiary record is complete on these topics and there is no need to adduce any fresh evidence in this regard."

When it comes to McKinlay's argument about homestead farming vs. industrial farming, Marchand said it's irrelevant. That's because the Criminal Code applies to animal owners engaged in both types of farming, he wrote.

"In this case, the trial judge set his mind to the issues arising under the (Criminal) Code. The identity of Ms. McKinlay as the owner and primary caregiver of the animals was clearly established. The trial judge carefully reviewed and weighed the evidence, including the expert evidence, concerning the poor body and living conditions of Ms. McKinlay’s animals," Marchand's decision reads.

As for whether her trial lawyer was ineffective, Marchand found the lawyer did their job to the best of their ability and that there was no miscarriage of justice.

In his judgment, Marchand said the 10-year animal ban, while on the higher end of the range of sentencing, was not unreasonable. He noted, from the trial judge's notes, that McKinlay has taken no personal responsibility for the condition of her animals, she lacks remorse and blames others.

"Ms. McKinley's love of animals has never been (an) issue. Her ability to care for them is. The sentence imposed by the trial judge, including the 10-year prohibition order, was justified to denounce her conduct and specifically deter her from failing to adequately care for animals in the future. Ms. McKinlay's appeal must be dismissed," Marchand said.