Court of Appeal for Ontario

Date: 2018-11-13 Docket: C62471

Judges: Feldman, Roberts and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Tyson Fleschhut Appellant

Counsel

Tyson Fleschhut, in person

Danielle Robitaille, duty counsel

Vallery Bayly, for the Crown

Heard and released orally: November 5, 2018

Reasons for Decision

[1] The appellant seeks leave to appeal from the summary conviction appeal judge's dismissal of his appeal from conviction, under s. 445(1) of the Criminal Code for wilfully killing a dog.

[2] Despite the able submissions of duty counsel, Ms. Robitaille, for which we are grateful, we see no error in the finding of mens rea relating to recklessness by the trial judge or by the summary conviction appeal judge.

[3] Section 429(1) of the Criminal Code defines wilfully for the purposes of s. 445(1) and reads:

Every one who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission 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.

[4] In this case, the trial judge found in the alternative that the appellant was reckless. Although his analysis was not fulsome, he explained that:

I would rule that considering the totality of the circumstances of the residence, the state of disarray, and the lumber lying around that he was reckless.

[5] The summary conviction appeal judge noted that the trial judge specifically referred to s. 429(1) in the preamble to his reasons and turned his mind to the issue of wilfulness when he made the finding of recklessness. In our view, when the reasons are read in their totality, the trial judge has made it clear that he was finding that the appellant threw the dog six feet on to the pile of debris with protruding nails, knowing that landing there was likely to cause the dog's death.

[6] Therefore, as the test set out in R. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641 for the granting of leave to appeal has not been met, the motion for leave to appeal is dismissed.

K. Feldman J.A.

L.B. Roberts J.A.

Fairburn J.A.