Court of Appeal for Ontario

Date: 20220427 Docket: C68667

Before: Feldman, Roberts and Paciocco JJ.A.

Between: Her Majesty the Queen, Appellant and Tiffany Dale Houle, Respondent

Counsel: Michael Dunn, for the appellant Brandon Chung, for the respondent

Heard: April 20, 2022

On appeal from the acquittal entered on August 31, 2020 by Justice Joseph M. Donohue of the Superior Court of Justice.

Paciocco J.A.:

Overview

[1] This is a Crown appeal of the acquittals of the respondent, Tiffany Dale Houle, on two counts of criminal negligence causing bodily harm, contrary to s. 221 of the Criminal Code, R.S.C. 1985, c. C-46. Those charges arose from an incident in which the respondent’s dogs attacked a toddler and his teenaged babysitter, grievously injuring the child. The Crown appeal focuses exclusively on the trial judge’s ruling excluding evidence of prior incidents involving the dogs. The prosecution depended on that evidence. The respondent concedes, appropriately, that if the trial judge erred by excluding this evidence, the error had a material bearing on the acquittals, thereby meeting the rule in R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14, permitting the acquittals to be set aside. For the reasons that follow, I would allow the appeal, set aside the acquittals, and order a new trial.

The Material Facts

[2] On February 5, 2018, two dogs belonging to the respondent escaped from her property, crossed the road to the neighbourhood park, mauled a three-year-old boy and attacked his teenaged babysitter. An adult bystander sought to protect the three-year-old by holding him over his head, but the dogs continued their attack. The three-year-old sustained life-threatening injuries and the babysitter incurred injuries to her hand.

[3] As a result of this incident, the respondent was charged with two counts of criminal negligence causing bodily harm on the theory that she had acted with wanton and reckless disregard for the lives and safety of others by failing to take sufficient care to ensure that the dogs would not escape, despite knowing that the dogs were dangerous.

[4] The Crown intended to establish the respondent’s knowledge that the dogs were dangerous by presenting evidence that focused on three prior incidents that occurred within the previous five months. [1] The Crown also sought to rely on these three incidents as proof that the respondent failed to exercise sufficient care, arguing that the evidence of these incidents shows that the attack was not a “one‑off” and that “there was a pattern of conduct here”.

[5] The first of the three incidents happened on September 27, 2017. On that date, the respondent’s dogs escaped from her property and attacked a small dog while it was being walked by its teenaged owner. The small dog sustained a puncture wound and the owner sustained an injury to her finger and scrapes to her stomach as she was attempting to hold her dog during the attack. The police spoke to the respondent about the incident, and she admitted that the dogs had escaped by jumping the gate, saying that the latch broke.

[6] In the second incident, which occurred on October 20, 2017, a couple and their daughter were playing with their small dog in a nearby park when their small dog was attacked by the respondent’s dogs. The attack continued after the father attempted to lift their small dog, and to block the respondent’s dogs with his body. The small dog sustained grave injuries that contributed to its death approximately three weeks later. When the police spoke to the respondent about this incident, she blamed her son for leaving the gate open. A charge was laid under the municipal Responsible Animal Ownership By-Law.

[7] In the third incident, which occurred in December 2017, the respondent’s next-door neighbour complained to the respondent that her dogs were coming into his yard and baring their teeth after escaping from under her fence.

[8] Since the Crown was relying on these incidents to show the respondent’s failure to take reasonable care in ensuring that her dangerous animals would not harm others, it recognized that this evidence was discreditable conduct evidence that had to satisfy the rule in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908. It therefore brought an application to have this “prior discreditable conduct” evidence admitted. Given the issues in this appeal, it is convenient to refer to this evidence as “prior incident” evidence.

[9] On March 16, 2020, the trial judge denied the Crown’s application to admit the prior incident evidence but did not give meaningful reasons. He effectively recorded that he based his decision on the arguments and evidence. He reserved the option of providing a more comprehensive oral decision during the trial.

[10] On the next return date, August 31, 2020, the Crown conceded that without the excluded prior incident evidence, it could not prove its case and invited the trial judge to dismiss the charges. The trial judge did so.

[11] On December 10, 2020, the trial judge released a brief endorsement as “further reasons” for the exclusion of the prior incident evidence.

The Issues

[12] The Crown appeals the dismissal of the charges, arguing that the trial judge erred in excluding the prior incident evidence by: (1) failing to provide sufficient reasons for appellate review and (2) by committing legal errors in his analysis.

[13] I do not agree that the reasons are insufficient. They are brief but as the following analysis reveals, they disclose an intelligible basis for the decision. There is no need to engage this ground of appeal further.

[14] I would allow the second ground of appeal, since those reasons reveal that the trial judge erred in law in applying the relevant admissibility test, and misapprehended material evidence.

The Trial Judge Erred in Law in Applying the Admissibility Test

[15] In my view, the trial judge erred in law by excluding the prior incident evidence “because it does not disclose evidence of ‘prior discreditable conduct’”. The fact that prior conduct evidence is not discreditable is not a legally appropriate basis for exclusion. As Charron J.A. explained in R. v. B. (L.) (1997), 35 O.R. (3d) 35 (C.A.), at pp. 45-46, leave to appeal refused, [1997] S.C.C.A. No. 524, the inquiry into whether prior conduct evidence is discreditable does not determine admissibility. Instead, it points the way to the admissibility rules that govern. If the prior conduct evidence is found to be discreditable and may thereby prejudice the accused, this will trigger the application of the similar fact evidence rule expressed in Handy, at p. 932. If, on the other hand, prior conduct evidence is not discreditable, the Handy rule will not have to be considered further, and the prior conduct evidence, if relevant, will be prima facie admissible.

[16] The respondent submits that although the trial judge used unfortunate language, he did not make the error I describe, but was simply saying that he could find no link between the prior incidents and the respondent. In support of her argument that the trial judge was merely finding that the prior incidents were not related to the conduct of the respondent, the respondent relies on three passages in the trial judge’s reasons where, using various phrases, he described the incidents as not showing discreditable conduct on the respondent’s part. I would reject this interpretation of the trial judge’s reasons.

[17] First, it is most unlikely that when speaking of discredit, the trial judge was in fact finding that there was no linkage, for the simple reason that there was ample evidence to establish linkage. Indeed, it would have been unreasonable for the trial judge to have found otherwise.

[18] The primary theory of the Crown was that the prior conduct was proof of the respondent’s knowledge that her dogs were dangerous (the “knowledge issue”). The only link between the prior aggressive behaviour of the dogs and the respondent required to support this inference is evidence that prior to the charged offence, the respondent was aware of these incidents. There was clear direct and circumstantial evidence that she either had personal knowledge or had been told about what had happened in each incident.

[19] Similarly, the secondary theory of the Crown was that the repeated escapes by the aggressive dogs showed that the escape on the day of the attack was not a “one-off” event, and that there was a pattern of the respondent failing to exercise sufficient care to keep her dangerous dogs from escaping (the “wanton and reckless disregard issue”). Once again, the only linkage required to support this line of reasoning was evidence that the respondent knew of the incidents, and that it was her dogs that were escaping from her yard despite that knowledge. Neither of those facts was disputed.

[20] Since there was ample evidence to establish the necessary linkage beyond any question, it is most unlikely that when speaking about discredit, the trial judge was actually making poorly expressed and unreasonable findings related to linkage.

[21] Second, the finding that the trial judge mistakenly treated discredit as an admissibility condition follows directly from what he said. At crucial points in his reasons, the trial judge was explicit in calling for the prior conduct to be discreditable, without any hint that linkage was of concern to him. As indicated, at the outset of his endorsement he explained his decision concisely by simply saying “this evidence [is] inadmissible because it does not disclose evidence of ‘prior discreditable conduct’”. He then described the legal requirements for admissibility that framed his analysis by saying “the subject evidence must tend to show […] ‘discreditable conduct’”.

[22] Relatedly, whether prior conduct is discreditable has nothing to do with whether there is a link between the prior conduct and the respondent. If the trial judge was truly focused on the absence of a link, there would have been no need for him to refer repeatedly in his reasons to the absence of prior “discreditable” conduct.

[23] Simply put, the trial judge’s own words prevent the interpretation the respondent is advancing.

[24] Finally, the trial judge said that he was applying the decision in B. (L.). In that decision, at p. 43, Charron J.A. recommends a four-step reasoning process for prior discreditable conduct evidence, which makes clear that linkage and discredit are distinct inquiries. The first recommended step addresses linkage by asking, “Is the conduct, which forms the subject-matter of the proposed evidence, that of the accused?” Nowhere does the trial judge engage this step. The third recommended step addresses discredit by asking, “Is the proposed evidence discreditable to the accused?” The trial judge does, at times, employ this language. This, too, drives the conclusion that when the trial judge was speaking about discredit, he was not evaluating linkage.

[25] I am therefore persuaded that the trial judge was, at all material times, addressing the discredit inquiry but that he did so incorrectly by treating discredit as a precondition to admission, rather than as the trigger for required compliance with the similar fact evidence rule.

The Trial Judge Misapprehended Material Evidence

[26] Even if I was not persuaded that the trial judge committed the legal error just described, I would allow the appeal because of his finding that “the proposed evidence is so distant in time and so irrelevant to any concern the Accused ought to have had for the lives and safety of other persons, that it is neither relevant nor material to the issues before the Court on this trial”.

[27] First, it is evident that in order to find that the proposed evidence was so distant in time as to be irrelevant, the trial judge must have misapprehended the evidence relating to the timing of the events. He was either mistaken as to the substance of the evidence, or failed to give it proper effect: R. v. Morrissey (1995), 22 O.R. (3d) 514, at p. 538. The three prior incidents occurred within five months of the charged offences. Using any reasonable measure, the prior incidents were not distant in time from the charged event. Moreover, the trial judge erroneously recorded dates in his endorsement, including by describing the year of the offence as 2019, when it was in fact 2018. I am therefore persuaded that in making this finding, the trial judge misapprehended the evidence and/or came to an unreasonable finding.

[28] Second, the trial judge misapprehended the relevance of evidence of prior attacks on dogs by failing to give it proper effect. Speaking of the first such event he said, “There was nothing about this incident between dogs from which it could be said that the accused ought to have had a concern for the lives or safety of persons.” He said this reasoning applied equally to the other dog attack the Crown wished to prove. This reasoning fails entirely to recognize that in both cases the dog attacks persisted despite the involvement of persons; that in the first dog attack the teenaged owner sustained an injury; that these events coupled with the incident with the neighbour showed a pattern by the dogs of escapes and aggression; and that prior aggressive and persistent joint attacks by two dogs in a populated neighbourhood, even on other dogs, can foreshadow risk not just to other dogs but also to persons.

[29] There are only two apparent explanations for the emphasis that the trial judge gave to the fact that two of the prior incidents involved dog attacks and not attacks on people. Either the trial judge erred in law by treating striking similarity as a prerequisite to admissibility when the prior incident evidence in this case does not depend on similarity for its logical relevance, or the trial judge misapprehended the proper effect of this evidence by concluding that “there is nothing about [this evidence] from which it could be said that the accused ought to have had a concern for the lives or safety of persons” (emphasis removed).

[30] Third, whatever one may say about the probative value of the prior incident evidence, and even bearing in mind that some measure of deference is warranted to judicial determinations of irrelevance, it was not reasonable for the trial judge to have found that the prior conduct evidence “is neither relevant nor material to the issues before the Court on this trial.” The relevance and materiality of the evidence is obvious.

[31] Cumulatively, the misapprehensions of evidence that I have identified played an essential role in the reasoning process that led to the decision to exclude the prior incident evidence, and to the acquittal. They therefore amount to reversible errors: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2, citing Morrissey, at p. 541.

Conclusion on the Appeal

[32] I would therefore allow the appeal and order a new trial.

The Admissibility of the Prior Incident Evidence

[33] I would also find that the prior discreditable conduct evidence relating to the three incidents described above is admissible at that trial. We have a sufficient factual record before us, and the benefit of the written and oral arguments of the parties at trial, and the submissions on appeal. It is therefore appropriate in the interests of efficiency that the admissibility issue be resolved on appeal.

[34] First, as previously intimated, this evidence is discreditable conduct evidence to which the rule in Handy applies. Regardless of whether the respondent was directly involved in the escape of the dogs on these occasions, given the nature of the evidence and the inferences that the Crown is seeking to draw from that evidence, it is clearly evidence that suggests discreditable character on the respondent in the form of irresponsibility and disregard for others.

[35] Second, for the reasons provided above, I am satisfied that the prior incident evidence is sufficiently linked to the respondent to fairly stand as evidence against her.

[36] Third, the prior incident evidence has the requisite “connectedness” to the knowledge issue and the wanton and reckless disregard issue, again as described above.

[37] Moreover, the prior incident evidence bears probative value. There is little if any dispute about whether the incidents happened, and the desired inferences are logical and reasonable. Beyond saying this, I will not attempt to describe how probative the inferences are on the matters in issue to avoid influencing the trier of fact at the retrial.

[38] Suffice it to say that the probative value the evidence has on those identified issues outweighs the modest risk of prejudice. That risk of prejudice is modest because the prior incident evidence is not infamous or inflammatory, and the charges are being tried by a judge alone where the risk of moral prejudice is lessened by judicial experience. Similarly, that judicial experience lowers the risk of reasoning prejudice through confusion between the events and the charged offence. Nor will this evidence distract or materially delay the trial or impose unfair burdens on the defence to answer. As indicated, the events are not in material dispute and can be efficiently presented.

[39] The Handy test is therefore satisfied, and the prior incident evidence is admissible.

Released: April 27, 2022 “K.F.” “David M. Paciocco J.A.” “I agree. K. Feldman J.A.” “I agree. L.B. Roberts J.A.”

[1] At trial, the Crown also sought to present additional evidence relating to the dogs getting into a neighbour’s yard in the prior year, but this evidence was not the focus of this appeal. I will say no more about it and should not be taken in these reasons to be endorsing its admissibility at the retrial I would order.