Court of Appeal for Ontario
Date: August 4, 2017 Docket: C60093
Judges: Laskin, Simmons and Pardu JJ.A.
Parties
Between
Her Majesty the Queen Respondent
and
John MacKenzie Appellant
Counsel
Frank Miller, for the appellant
Kathleen Farrell, for the respondent
Hearing
Heard: June 16, 2017
On appeal from: Order of Justice Scott K. Campbell of the Superior Court of Justice, dated February 6, 2015, dismissing an appeal from the convictions entered on March 26, 2014 by Justice Gregory A. Campbell of the Ontario Court of Justice.
Decision
Simmons J.A.:
A. Introduction
[1] Following a trial in the Ontario Court of Justice, the appellant was convicted of two offences: i) wilfully killing a dog, the property of a friend, without lawful excuse; and ii) wilfully causing unnecessary pain and suffering to a dog by strangulation and suffocation with tape and a chain.
[2] The dog was found dead in the appellant's yard on April 25, 2012. The first person who saw the dog noted that he was tethered to a tree with a lead – and that he had a choke chain around his neck and electrical tape wrapped around his muzzle.
[3] At trial, the veterinarian who examined the dog testified that the likely cause of death was strangulation by the choke chain. Although she testified that taping a dog's muzzle would cause stress, she also acknowledged that different dogs would react differently to having tape wrapped around their muzzle. Further, the extent of a dog's reaction could depend on how tightly its muzzle was wrapped.
[4] The appellant did not testify at trial. However, in various out-of-court statements that were introduced at trial, the appellant acknowledged that he had wrapped the electrical tape around the dog's muzzle and left him tied to the tree on a choke chain.
[5] The main issues at trial were causation and mens rea.
[6] The trial judge accepted the veterinarian's opinion that the dog strangled on the choke chain and also concluded that the tape was a contributing cause of the dog's death.
[7] In convicting the appellant of both charges, the trial judge relied in part on s. 429(1) of the Criminal Code, which deems recklessness to be wilful conduct for the purposes of the offences. Relying on common sense, the trial judge concluded that the appellant knew that putting tape around the dog's muzzle would cause the dog to struggle. Further, because the dog was on a choke chain, the trial judge was satisfied that the appellant also knew that, through struggling because of the tape on his muzzle, the dog would probably harm himself and ultimately die – and that the appellant was reckless whether these events would occur.
[8] On appeal to the Summary Conviction Appeal Court (the "SCAC"), the convictions were upheld. The SCAC judge found that the trial judge's conclusions on causation and knowledge were available inferences on the record. The SCAC judge also concluded that the trial judge could have relied on s. 445.1(3) of the Criminal Code, which deems failure to exercise reasonable care for an animal to be proof of wilfully causing pain and suffering in certain circumstances.
[9] The appellant applies for leave to appeal his convictions to this court and argues that the SCAC judge erred in failing to find that the trial judge improperly took judicial notice of adjudicative facts, namely causation and knowledge.
[10] Framed differently, the appellant's position is that the trial judge's findings that the tape on the dog's muzzle was a contributing cause of the dog's death and that the appellant knew that taping the dog's muzzle would cause harm and eventually death were speculative and contrary to the expert evidence. The appellant also argues that the SCAC judge erred in relying on s. 445.1(3) of the Criminal Code as a basis for upholding the convictions because neither the trial Crown nor the trial judge invoked that section.
[11] In the particular circumstances of this case, we did not call on the Crown to address the question of leave or the substantive issue as framed by the appellant. Rather, we asked the Crown to address the question of the reasonableness of the verdicts, which, in our view, is the main issue on appeal.
[12] For the reasons that follow, I would grant leave to appeal, allow the appeal in part, set aside the appellant's conviction for willfully killing the dog and acquit the appellant of that charge. I would dismiss the balance of the appeal.
B. Background
[13] The charges were laid after a personal support worker for the appellant's mother discovered a dog lying on the ground in the appellant's yard around noon on April 25, 2012. The dog was tied to a tree with a lead and had a choke chain around his neck. The worker described the choke chain as being so tight "it was disgusting." She noticed later that the dog's muzzle was taped.
[14] According to the personal support worker, during previous visits to the home, she had had to wedge herself between the dog and the door, so as not to let the dog in the house. She described the dog as being not overly friendly on those occasions, but not vicious. She said he did not try to bite her or growl at her.
[15] Police attended the scene one to two hours after the personal support worker's arrival at the home. They found a male German shepherd in the appellant's front yard that was obviously dead. The dog was lying on the ground and had black electrical tape wrapped around his muzzle. One officer described the dog's muzzle as being "taped shut" with electrical tape. Another officer noticed what he thought were blood spots leading to the appellant's door. When the appellant appeared at the door his right hand was bandaged and the bandage was bloodstained. The appellant told the officer the dog bit him and later strangled himself in the night.
[16] A Humane Society worker went to the appellant's home the day after the dog was found. The appellant told the Humane Society worker that he (the appellant) was looking after the dog for a friend. The dog had been tied to a tree in the front yard with a leash and a choke chain. The day before the dog died, the dog bit the appellant when he tried to take the dog off his chain so the appellant could take him inside.
[17] On April 25, 2012, the dog was barking continuously. The appellant went to bring the dog inside but wrapped electrical tape around the dog's muzzle and nose so the dog could not bite him. The appellant tried to take the dog off his chain but was unable to do so. He went away. When he returned two hours later the dog was dead.
[18] The veterinarian who performed a post-mortem examination on the dog testified at trial. When she examined the dog, the tape was no longer on his muzzle. Although she could not definitively exclude other possible causes of death, in her opinion, the dog died by strangulation as a result of major blood vessels being closed off by a ligature in the area of a linear bruise that encircled his neck. When asked to describe the texture of the linear bruise, the veterinarian said you could see little vertical lines indented into the dog's skin, especially over the top of the neck. Although she did not see the choke chain the dog had been wearing, she said the little vertical lines would fit with the links in most choke chains.
[19] The dog also had petechia or pinpoint bleeds on his face and ears and on his skin ahead of the linear bruise, moving up the neck toward the head. In the veterinarian's opinion, the ligature around the dog's neck would have closed off major blood vessels running to and from the head, causing pressure to build up and rupture capillaries ahead of the ligature, causing the petechia. The only other injuries the veterinarian noted was an abrasion on the right side of the dog's muzzle and a smaller abrasion under the dog's right eye. The dog was internally healthy and apart from the injuries she noted, the dog did not appear to have any kind of health concerns.
[20] When asked during examination-in-chief about the physical and psychological effects of taping a dog's muzzle, the veterinarian testified that it would cause a lot of stress. She explained that dogs can only release heat and pant with an open mouth. They would automatically want to get the tape off. She acknowledged that if it was not hot, a dog would not be panting. However, she said if a dog started getting stressed out and anxious, the dog could start to pant.
[21] The veterinarian said she would expect a dog to be clawing at the tape, trying to get it off and that the dog could start running backwards, just trying to get the tape off its face. Although she testified that she did not think this dog would have died just from having the tape around his mouth, she thought it would have added an extra level of distress to his mental state before he actually strangled. She said if the dog ran to the end of the chain and continued pulling, the choke chain would continue to tighten. If the dog panicked enough and did not stop, he could have pulled until he strangled himself.
[22] In cross-examination, the veterinarian agreed that a dog's mouth would have to be taped shut to prevent him from panting. However, while she acknowledged that different dogs would react differently to having tape wrapped around their muzzle, she maintained that a dog would want the tape off. How aggressively a dog would try to get the tape off would vary. The veterinarian acknowledged that other things could have caused a panicked response in the dog and caused him to strangle himself apart from the tape. She also confirmed that apart from the two abrasions, she did not see any claw marks or other signs of the dog scratching at the tape.
[23] In the veterinarian's view, it was unlikely that the dog took a run at something out to the end of his chain, thereby choking himself or that the dog had a heart attack. She testified that if the dog had taken a one-time run at a car or squirrel and made it to the end of his choke chain suddenly, she would not expect to see any lasting impact. Choke chains are intended to get a dog's attention. Further, she did not observe anything about the dog's heart suggesting a heart attack – although she agreed you may not. However, if the dog had had a heart attack and died, she did not believe you would see the petechia and bruising she observed in this case.
C. Relevant Provisions of the Criminal Code
[24] The offences with which the appellant was charged are set out in ss. 445 and 445.1 of Criminal Code. The relevant portions of those sections read as follows:
445(1) Every one commits an offence who, wilfully and without lawful excuse,
(a) kills … dogs… that… are kept for a lawful purpose.
445.1(1) Every one commits an offence who
(a) wilfully causes … unnecessary pain, suffering or injury to an animal…
[25] As noted by the trial judge, s. 429(1) deems recklessness to constitute wilful conduct for the purpose of Part XI of the Criminal Code, which includes ss. 445 and 445.1. Section 429(1) reads as follows:
429(1) Every one who causes the occurrence of an event by doing an act … knowing that the act … will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part, wilfully to have caused the occurrence of the event.
[26] In addition to s. 429(1), s. 445.1(3) provides that, in the absence of evidence to the contrary, evidence that a person failed to exercise reasonable care of an animal, thereby causing it pain and suffering, is proof of wilfully causing pain and suffering:
445.1(3) For the purposes of proceedings under paragraph (1)(a), evidence that a person failed to exercise reasonable care or supervision of an animal … thereby causing it pain, suffering or injury is, in the absence of any evidence to the contrary, proof that the pain, suffering or injury was caused … wilfully, as the case may be.
D. The Trial Judge's Reasons
[27] The trial judge began his reasons by listing the salient background events leading up to the dog's death: prior to his death, the dog had been in the appellant's care for some days; the day before he died, the dog bit the appellant on the hand; on the day of his death, the dog was tied to a tree in the appellant's yard on a choker chain, which is a ligature that tightens as it is pulled; on the day of his death, the dog was barking continuously; according to a statement made by the appellant, on the day the dog died, he taped the dog's muzzle with electrical tape; and, the dog was found dead later the same day, chained to the tree with the electrical tape still wrapped around his muzzle.
[28] The trial judge accepted the veterinarian's opinion that the dog strangled on the choke chain. He acknowledged that the veterinarian could not rule out all other possible causes of death. However, he relied on her findings about the petechia, the absence of other indications of causation and the surrounding circumstances to accept her opinion about the cause of death. In the trial judge's view, the veterinarian had indicated that the tape was a contributing factor in the dog's death. He concluded that the "ultimate issue" was whether the appellant wilfully killed the German Shepherd or "wilfully and unnecessarily caused pain, suffering and injury to the dog."
[29] Relying on common sense, the trial judge found that the appellant knew that putting tape around the dog's muzzle would cause the dog to struggle. Further, relying on s. 429 of the Criminal Code as well as common sense, the trial judge found that the appellant knew that, as a result of struggling because of the tape while on a choke chain, the dog would probably harm himself and ultimately die, and that the appellant was reckless whether those events would occur.
[30] The key portions of the trial judge's reasons are set out in Appendix 'A'.
E. The SCAC Judge's Reasons
[31] The appellant advanced several arguments to the SCAC, including the arguments now advanced in this court. The SCAC judge rejected the appellant's argument on the issue of judicial notice and found that the trial judge's conclusions on causation and the appellant's level of knowledge were inferences that were properly available based on the trial record. The SCAC judge also concluded that the trial judge could have relied on s. 445.1(3) of the Criminal Code in relation to the charge of wilfully causing unnecessary pain and suffering to the dog. As noted above, that section deems failure to exercise reasonable care for an animal to be proof of wilfully causing the animal pain and suffering in certain circumstances.
F. Discussion
[32] As I have said, the main issue on appeal is whether the verdicts were unreasonable. In particular, the appellant contends that the trial judge's findings concerning causation and knowledge were speculative and contrary to the expert evidence.
[33] The appellant relies on the veterinarian's evidence that she could not exclude other causes of death, such as heart attack; that things other than the tape on the dog's muzzle could have caused him to panic and asphyxiate; and that the responses of different dogs to tape on their muzzles would be variable. Moreover, given that the veterinarian could not predict the dog's response to having tape on his muzzle, the appellant asserts it was unreasonable to conclude that he (the appellant) knew that taping the dog's muzzle would probably cause the dog to struggle on the choke chain to the point that he would suffer and eventually die and that the appellant was reckless as to whether those events ensued.
[34] I would not accept the appellant's submissions concerning causation or concerning knowledge that the dog would likely struggle and suffer on the choke chain.
[35] For reasons I will explain, in my view, considered as a whole, the evidence creates a compelling inference that the dog died by strangling himself on the choke chain after the appellant wrapped electrical tape on his (the dog's) muzzle. Further, the evidence creates the additional compelling inference that the appellant knew, when he wrapped electrical tape around the dog's muzzle, that the dog was in an agitated state and would likely struggle and suffer on the choke chain and that the appellant was reckless whether those events ensued. I also agree with the SCAC judge that the trial judge could have relied on s. 445.1(3) of the Criminal Code in relation to the charge of wilfully causing unnecessary pain and suffering to the dog. For all these reasons, I would dismiss the appellant's appeal as it relates to that charge.
[36] On the other hand, I agree with the appellant's argument that the veterinarian's evidence undermines the conclusion that the appellant knew the dog was likely to strangle himself to death if left unattended on the choke chain with electrical tape wrapped around his muzzle. I would therefore allow the appellant's appeal on the charge of wilfully killing the dog.
(1) Causation
[37] Although the veterinarian could not definitively exclude all possible causes of death other than strangulation on the choke chain, I am satisfied that it was open to the trial judge to conclude, based on the totality of the evidence, that was the only rational inference as to the cause of death, and further that the tape wrapped around the dog's muzzle was a contributing cause of the dog's death.
[38] That evidence includes:
the veterinarian's opinion that strangulation by ligature was the likely cause of death;
the veterinarian's observations and opinion concerning the bruise encircling the dog's neck, the resemblance of the indentations in the bruise to the appearance of most choke chains, and the petechia the veterinarian observed ahead of the choke chain;
the veterinarian's opinion that the dog was internally healthy and that there were no signs of heart attack;
the veterinarian's opinion that one would not expect to see the petechia she observed had the dog suffered a heart attack;
the veterinarian's evidence that a choke chain acts as a ligature that tightens when a dog pulls on it;
the evidence of the appellant's statements that the dog bit him the day before the dog died;
the police officer's evidence that he observed blood on the appellant's bandaged hand;
the evidence of the appellant's statements that he was unable to get the dog off the choke chain either the day before the dog died or after he put electrical tape on the dog's muzzle on the day the dog died;
the fact that the dog had been tied to a tree while on a choke chain throughout the day prior to his death without incident;
the fact that the dog was found dead within two hours of being left alone tied to a tree while on a choke chain and with tape wrapped around his muzzle;
the police officer's evidence that the deceased dog's mouth was "taped shut" with electrical tape;
the veterinarian's evidence that, while the aggressiveness with which they would do so would vary, dogs would try to remove tape wrapped around their muzzles;
the veterinarian's opinion that a dog trying to remove tape from around its muzzle could start to run backwards in an effort to get the tape off;
the veterinarian's observations concerning the prominence on the back of the dog's neck of the indentations in the bruise encircling the dog's neck; and
the veterinarian's opinion that a panicked dog could pull on a choke chain until it strangled itself.
[39] Viewed as a whole, this evidence creates a compelling inference that the dog had been highly agitated and aggressive in the appellant's presence; that he was in that state after the appellant applied tape to his mouth; and that he ultimately ran backwards and pulled on the choke chain until he strangled himself. Considered in context, the appellant's assertions that the dog may have died through some alternate, undetected cause or that it may have panicked as a result of some other, unknown cause, apart from the tape on his muzzle, are themselves speculative.
(2) Knowledge that the Dog Would Likely Suffer on the Choke Chain
[40] The same evidence that I have referred to above, together with the evidence that the dog had been in the appellant's care on a choke chain during at least two days prior to his demise, creates the following additional compelling inferences: the appellant knew the dog could be agitated and aggressive; knew that the choke chain would tighten if the dog pulled on it; knew that the dog was agitated when he (the appellant) placed tape on his (the dog's) muzzle; and knew that the dog was likely to experience unnecessary pain and suffering if left alone on the choke chain in an agitated state with tape on his muzzle – and further, that the appellant was reckless whether these events ensued.
(3) The Trial Judge Could Have Relied on s. 445.1(3) of the Criminal Code in Relation to the Charge of Wilfully Causing Unnecessary Pain and Suffering to the Dog
[41] In any event, in the alternative, I agree with the SCAC judge, that leaving an agitated dog unattended for two hours while the dog was in a choke chain with its muzzle taped shut demonstrates a failure to "exercise reasonable care or supervision of an animal" under s. 445.1(3) of the Criminal Code; that the appellant's conduct in that regard caused the dog pain, suffering and injury and that, given the absence of evidence to the contrary, the appellant is therefore deemed to have wilfully caused unnecessary pain, suffering and injury to the dog.
[42] Although the trial judge did not refer to s. 445.1(3), it is apparent that he reached the same conclusion, when he asked, rhetorically:
Is it a stretch on my part to conclude if you wrap tape on a dog's mouth that it is going to struggle and resist and is it unreasonable on my part to conclude that if somebody is charged with the care of a dog that they should at least, having taken that step, watch and give it some thought and consideration to what the consequences would be in that act? It certainly is not a normal act to wrap tape around a dog's mouth.
[43] Whether the trial Crown relied on s. 445.1(3), absent prejudice to the appellant, it was open to the trial judge, and the SCAC judge, to rely on any route to liability available on the evidence. As the appellant did not testify, I fail to see how he could have been prejudiced by the failure of the Crown to refer to s. 445.1(3). He did not take the opportunity to assert either that he exercised reasonable care and supervision of the dog or that he was unaware of the potential consequences of leaving the dog tethered to a tree while in a choke chain with his muzzle taped shut.
(4) Knowledge that the Dog Would Probably Die
[44] As for the trial judge's finding that the appellant knew that leaving the dog tethered to a tree while in a choke chain with tape around his muzzle would probably lead to his death, I agree with the appellant that the veterinarian's evidence undermines that finding. As expressed by the veterinarian that is something that could happen if a dog panicked enough. She did not express that event as a likelihood. In these circumstances, it would be unreasonable to infer that the appellant knew that the dog would likely strangle himself to death if left unattended with tape around his muzzle while tethered to a tree wearing a choke chain.
G. Disposition
[45] Based on the foregoing reasons, I would grant leave to appeal, allow the appeal in part, set aside the appellant's conviction for wilfully killing the dog and enter an acquittal on that charge. I would dismiss the balance of the appeal.
Released: August 4, 2017
"GP" "Janet Simmons J.A."
"AUG 4 2017" "I agree John Laskin J.A."
"I agree G. Pardu J.A."
Appendix 'A': Key Extracts from the Trial Judge's Reasons
[Causation]
In the doctor's opinion the chain acted as a ligature that tightened around the dog's neck which compromised the flow of blood and hence, the loss of oxygen to the brain and eventual death.
The doctor could not rule out other circumstances of actual death being even a heart attack, as suggested to her, but pointed to the extensive evidence of petechia…. So to put it another way blood flow to the brain was cut off because the chain was too tight.
The doctor further explained that the tape around the dog's snout was a contributing factor indicating that the dog likely struggled to get the tape off, panicked with time and with anxiety, not being able to remove it and pulled and contorted in its efforts to remove that tape all of which would cause the choker chain to tighten around the dog's neck.
[Requirement to Prove Recklessness]
[T]here can be no doubt there was a choker chain on the dog, that it pulls and contracts when the dog pulls and that the tape was around the muzzle, applied by [the appellant]. Ultimately, I have to be satisfied whether [the appellant] knew that by taking those steps and doing those acts would probably bring about the result and that he was reckless in regard to the outcome.
[Knowledge that the Dog Would Likely Struggle and Injure Itself]
It is hard for me to imagine anybody living in this society and not appreciating what a dog is like and how a dog behaves and one could draw even from their own personal experience, I would imagine, that a dog would be that dissimilar from anybody who is restrained or bound up, or tied up with something, to resist.
Is it a stretch on my part to conclude if you wrap tape on a dog's mouth that it is going to struggle and resist and is it unreasonable on my part to conclude that if somebody is charged with the care of a dog that they should at least, having taken that step, watch and give it some thought and consideration to what the consequences would be in that act? It certainly is not a normal act to wrap tape around a dog's mouth.
So it is not something to my mind that I need expert evidence or other evidence from someone who could speak about what [the appellant] could reasonably expect to be known about how the dog would react if tape was put around its nose. It would resist and it would struggle, it would try to get the tape off.
Did [the appellant] not appreciate when he wrapped tape around the dog's muzzle that it would pant which is an effort to breathe, or try to pant and would be restricted from its effort to breathe by trying to pant and would thereby struggle and try to get the tape off its nose?
There has to be a degree of common sense that I can apply to appreciate that as an ordinary, reasonably prudent person, [the appellant] could appreciate all of this, would know all of this and that by his act could foresee that the probable occurrence or event would be suffering, pain and injury to the dog.
[S]o for the reasons I have given I am satisfied that the Crown has met its burden under count 2, that [the appellant], by putting the tape on the dog's muzzle and chaining it with a choker caused the dog to suffer and sustain injury knowing that that would be the probable outcome and that he was reckless as to its outcome.
[Knowledge that the Dog Would Likely Strangle Himself to Death]
[I]n the absence of the choker I would not be satisfied that [the appellant] could know that his act of putting tape on the muzzle would probably cause the dog's death but that tape on the muzzle, coupled with the choker chain tied to the tree would probably result in the dog struggling and the eventual strangulation, because again, I think there is a degree of common sense with his years in knowing that a dog does not have the capability to reason as a human would, to resist and stop struggling because it could lead to its death but would struggle eventually until its death. [Emphasis added.]