Court Information

Caledon Info Number: 09-3749

Her Majesty the Queen Respondent

and

Donald Geddes Appellant

Justice: B. E. Pugsley

On appeal from the judgment at trial before: His Worship Justice of the Peace L. Fayolle at Caledon East, Ontario

Appeal Heard: October 16th, 2012

Reasons Released: October 18th, 2012

Appearances

Mr. A. Bruno – Counsel for Respondent

Mr. J. Gold – Paralegal Candidate for Appellant

Reasons

[1] Nature of Appeal

Mr. Geddes appeals the decision made at trial by His Worship Justice of the Peace L. Fayolle on April 26th, 2011, on a single count of owner fail to exercise reasonable precautions to prevent a dog from biting or attacking a domestic animal contrary to subsection 5.1(a) of the Dog Owners Liability Act RSO 1990 c. D.16, as amended (hereafter referred to as the Act).

[2] Facts

On or about August 12, 2009, a large black dog attacked and savaged a small dog owned by one Mr. Miceal at Mr. Miceal's residence in rural Caledon. The small dog ultimately died. The appellant was the tenant of the neighbouring premises at the time and was there when the attack took place. He attempted to intervene in the attack to no avail.

[3] Trial Outcome

The appellant was convicted after a trial and sentenced to pay a large fine and to make restitution in the amount of $2000.00 to the owner of the small dog.

[4] Issue on Appeal

Although the appellant raises a number of issues in his factum it is only necessary to address the single real issue engaged by this appeal: did the learned Justice of the Peace at trial properly find that the appellant fell within the definition of "owner" set out in subsection 1(1) of the Act.

[5] Statutory Definition of "Owner"

The Act defines "owner" as follows:

"'owner' when used in relation to a dog, includes a person who possesses or harbours the dog, and where the owner is a minor, the person responsible for the custody of the minor;"

[6] Undefined Terms

"Possession" and "harbour" are not defined in the Act.

[7] Charge Against Appellant

The appellant was charged under subsection 5.1(a) of the Act. It was alleged that he as the owner of the large dog failed to exercise reasonable precautions to prevent the dog from biting the small dog.

[8] Evidence Regarding Actual Ownership

The evidence disclosed that the large dog was probably actually owned by one Janice Simon, a subtenant at the premises rented by the appellant, and later after these events became his girlfriend.

[9] Appellant's Relationship to Premises

The evidence also disclosed that as the tenant the appellant gathered rent from his subtenants and then paid the landlord by certified funds each month. The landlord only dealt with the appellant but knew that at least one subtenant resided at the premises. Several dogs also resided there.

[10] Circumstances of the Attack

The evidence disclosed that on the day of the alleged offence Ms. Simon was at work and had left her dogs enclosed in her room. The appellant came and went from the house at times that day. He heard what he described as sounds of a dog fight and intervened to try and protect the small dog but was not successful. The small dog suffered fatal injuries.

[11] Restraint Measures

There were dog runs and lines used by the residents at the appellant's premises to secure the dogs normally although they had been at large before at times.

[12] Error in Law – Definition of Ownership

In my view the Learned Justice of the Peace below fell into error when considering and applying the essential definition of ownership at the trial here. He also failed to address the submission of the assistant crown attorney that the matter was to be decided on a balance of probabilities when that lower standard of proof applied to proceedings under a different section of the Act.

[13] Trial Judge's Reasoning on Ownership

His Worship was alive to the need to find that the appellant was the owner of the large dog that attacked the small dog. As he stated at page 139 of the trial transcript: "Now, we come to the ownership of the dog." He observes that Ms. Simon testified that she owned the dog. He then notes that "as the lessee" the appellant was "responsible for" the dogs that reside at the premises he rents. Further, at page 140: "you were in control of the home where the dogs . . . resided at". Finally, during sentencing His Worship made the following comment at page 147: "I guess I want to bring to your attention, when there are animals, the owner of the property, the owner of the dogs, the person in charge of the property all have some form of ownership under the Dog Liability Act." (emphasis added). And further on the same page: "(S)omehow this dog got out. And, unfortunately, from your own evidence, you were the one who was in and out and nobody else was there."

[14] Connection Between Status and Ownership

The court below clearly drew a connection between the appellant's status as the tenant, and the fact that his travels that day took him back and forth to the residence, with the ownership of the large dog.

[15] Failure to Apply Statutory Definition

His Worship however did not turn his mind to the definition of "owner" set out in the Act to explain how the appellant fit that definition. He appears to have accepted that Ms. Simon was the actual owner of the dog. He does not however state how the appellant was included in the definition of owner as expanded by the Act to include being someone who had possession of the dog or harboured the dog. If His Worship found that leasing the premises where the dog was kept by a subtenant in her private room made the appellant the owner of the dog I do not believe that this fact alone is sufficient on the plain meaning of the words possession and harbouring. Subtenants, like tenants, have rights to the space that they lease that includes the right to exclude others from their private space. As His Worship said during sentencing, this interpretation would also mean that the landlord (as owner of the property) would also be the owner of the dog, even if the landlord didn't know that the dog existed let alone represented a threat to anyone. Clearly the definition of owner cannot be so broad as stated by the court below and yet His Worship did not set out how the appellant could fall within the definition in the Act.

[16] Control of Premises

His Worship also determined that the appellant had control over the premises and thus was the owner of the dog. This again on its own cannot meet the definition without some further explanation by the court as to how "control" equated with possession or harbouring of the animal.

[17] Presence at Premises

Finally, His Worship, sympathizing with the appellant, observed that he happened to be in and out of the home that day, and that, too, was equated with ownership of the dog, without explanation.

[18] Error of Law Requiring New Trial

On this basis alone there must be a new trial here. The court below needed to state, clearly, how this appellant, who was not the actual owner of the dog, came within the extended definition of owner under section 1 of the Act. By not so doing the court below fell into an error of law.

[19] Standard of Proof

In submission the assistant crown attorney directed the court below to the standard of proof applicable to section 4 of the Act: "Findings of fact in a proceeding under this section shall be made on a balance of probabilities." The information herein alleged an offence under section 5 of the Act. Nothing in section 5 provides for proof on any lower standard than the criminal standard of proof beyond a reasonable doubt. Further, the penalty section (section 18) provides for fines up to $10,000.00 and jail for up to six months. Clearly no standard of proof below the usual criminal standard can apply to the crown's evidentiary duty in this case. The crown having misstated the standard, His Worship ought to have addressed this point by clearly stating the standard of proof he was applying to the evidence here, but he did not do so, leaving the lingering possibility that the wrong standard may have been applied.

[20] Failure to Address Reasonable Precautions

The court below did not address the other necessary aspect of a finding of guilt under section 5.1: whether the appellant, even assuming that he was the owner, took reasonable precautions to prevent the attack by Ms. Simon's dog. There was evidence of restraining fences and tie down lines, and of the dogs being kept in Ms. Simon's room. The court was required to address the reasonableness of the steps the appellant took once the court determined that he was the owner of the dog. The court did not do so in any ascertainable way.

[21] Disposition

On a successful appeal I may direct an acquittal or order a new trial. In my view there was some evidence before the court that had the law been properly applied may have lead to a finding of guilt under section 5.1. The proper disposition in my view is therefore to order a new trial.

[22] Order

In the event therefore the appeal is granted and a new trial is ordered. The matter is remitted back to the Provincial Offences Court at the Court House in Caledon East, Ontario, returnable in Court Room 1 at 9 a.m. on Monday, November 5th, 2012, to set a date for trial.

Justice Bruce E. Pugsley Ontario Court of Justice at Orangeville