ONTARIO COURT OF JUSTICE

CITATION: Clarington (Municipality) v. Carleton, 2023 ONCJ 496

DATE: 2023 08 23

COURT FILE No.: Regional Municipality of Durham 2860 999 20 1473

BETWEEN:

THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON

— AND —

MILTON GEORGE CARLETON

Before Justice of the Peace M. Coopersmith

Heard on April 25, 2023

Reasons for Judgment released on August 23, 2023

M. Pelham................................................................................................... for the prosecution

No appearance by or on behalf of Milton George Carleton, even though notified of time and place.

JUSTICE OF THE PEACE COOPERSMITH:

[1] On May 24, 2020, the residential neighbourhood in the area of Courtice Road and Holyrod Drive, in the Municipality of Clarington, Region of Durham, was terrorized by two large, muscular dogs roaming freely. As a result, Milton Carleton, the owner of the dogs, has been charged with the following nine offences under either the Dog Owners’ Liability Act, R.S.O. 1990, c.D.16, as amended, [“DOLA”], or The Corporation of the Municipality of Clarington By-Law 2013-024, Responsible Pet Owner’s By-Law (25 March 2013), as amended, [“the By-Law”]:

1. The defendant failed to exercise reasonable precautions to prevent a dog identified as ‘Girlie’ from biting or attacking a person or domestic animal, contrary to section 5.1(a) of DOLA;

2. The defendant failed to exercise reasonable precautions to prevent a dog identified as ‘Girlie’ from behaving in a manner that poses a menace to the safety of persons or domestic animals, contrary to section 5.1(b) of DOLA;

3. The defendant allowed a pet, namely a dog identified as ‘Girlie’ to enter onto private property without consent, contrary to section 3.6 of the By-Law;

4. The defendant allowed a pet, namely a dog identified as ‘Girlie’, to be at large, contrary to section 3.5 of the By-Law;

5. The defendant failed to exercise reasonable precautions to prevent a dog identified as ‘Pepper’ from biting or attacking a person or domestic animal, contrary to section 5.1(a) of DOLA;

6. The defendant failed to exercise reasonable precautions to prevent a dog identified as ‘Pepper’ from behaving in a manner that poses a menace to the safety of persons or domestic animals, contrary to section 5.1(b) of DOLA;

7. The defendant allowed a pet, namely a dog identified as ‘Pepper’ to enter onto private property without consent, contrary to section 3.6 of the By-Law;

8. The defendant allowed a pet, namely a dog identified as ‘Pepper’, to be at large, contrary to section 3.5 of the By-Law;

9. The defendant allowed a dog identified as ‘Pepper” to bite, contrary to section 3.8 of the By-law.

[2] Furthermore, the Municipality of Clarington has commenced proceedings and is seeking two Orders pursuant to two Statements made under Part IX, section 161 of the Provincial Offences Act, R.S.O. 1990, c.P.33, as amended, requesting that the two dogs be destroyed or that the owner of the dogs take such steps as the court orders for the more effective control of the dogs or for the purposes of public safety.

I. BACKGROUND:

[3] On April 25, 2023, the trial commenced and the prosecution provided evidence from six witnesses: The defendant did not appear for trial and, having reviewed the paperwork to ensure the Court had jurisdiction, as is required under section 54 of the Provincial Offences Act, the trial proceeded in the absence of the defendant, Milton Carleton.

II. THE ISSUES:

[4] This Court must decide:

1. Whether Milton Carleton committed the nine offences with which he is charged?

2. Whether Orders under Part IX Section 161 of the Provincial Offences Act should be issued to destroy both dogs or require Mr. Carleton to take measures for more effective control of the dogs for public safety?

III. EVIDENCE OF THE WITNESSES:

[5] The prosecution presented testimony from six witnesses. As previously stated, the defendant, Milton Carleton, did not attend the trial and, hence, no defence evidence or submissions were provided.

1. Evidence of Jessica Nash:

[6] Jessica Nash testified that on May 24, 2020, she was in the backyard of her home at 162 Holyrod Drive in Courtice with her husband and young daughter. The house had recently been built and there were no fences yet erected on the property. Her upper-level backyard deck has a gate and ten steps to descent to the backyard. She was on this deck playing with her daughter when two dogs appeared on her property and came up the stairs to the gate. They had come from directly behind Holyrod Drive. Her husband, Rob Nash, did not believe the dogs to be friendly and told them to go home. The dogs descended the stairs and started to proceed between her house and that of her neighbour. Mr. Nash followed to ensure everything was okay. Instead, one of the dogs leapt at Rob and he ran back up the stairs. As he tried to jump over the gate, the dog got hold of his leg and one of his shoes came off. He managed to escape from the dog and both dogs then ran to the front of the Nash’s property.

[7] Mr. Nash went to the front of his property, fearing there might be children in the neighbourhood who were put at risk by the roaming dogs. There, he observed the dogs on the property of the neighbour across the street who had just returned home. After getting out of her vehicle, the neighbour could be seen between her front door and her garage, shielding one of her two small dogs on her chest, and guarding them from the dark brown and orange dog that had jumped on her and was standing on its back legs. Mr. Nash attempted to aid his neighbour. However, for him to then escape from further attack by the aggressive dogs, he had to jump onto the roof of the neighbour’s car, as the dogs proceeded to scratch at the vehicle in their attempt to get to him. It was not until another neighbour drove his pickup truck next to the car that Mr. Nash was able to escape from the dogs by jumping into the bed of the pickup truck.

[8] Rob Nash’s leg had been bitten by the brindle dogs and photographs entered into evidence, clearly show the puncture marks, along above his ankle, along with scratches on his calf. A paramedic living on the next street was called over and attended to his wounds. Durham Regional Police also attended. About fifteen minutes after the police arrived, the black dog followed the other dog who had run back to the property located behind Ms. Nash. Both the paramedic and the police officer advised Mr. Nash that there might be an issue with rabies and the following day he attended at his Family Doctor Walk-in Clinic to address this issue.

[9] Ms. Nash described both dogs as muscular and large, each weighing at least 100 pounds. One dog was dark brown with orange striping, while the other appeared to be black. She did not know the breed of the dogs, but believed them to be some sort of rottweiler-bulldog mix. Their demeanour was aggressive at the gate and they were growling and barking.

2. Evidence of Charles Andrews:

[10] That same day, Charles Andrews was at 3298 Courtice Road, unloading his vehicle parked in front of his garage. He first noticed one of the dogs between his two cars, growling and foaming at the mouth. His grandson ran out and one of the dogs lunged at the child as Mr. Andrews quickly lifted his grandson onto his shoulders to escape from the attacking dogs. A police officer arrived and told Mr. Andrews to take his grandson inside, as the officer attempted to distract the dogs by sounding his vehicle’s sirens.

[11] Mr. Andrews described the dogs as big and strong. Both dogs were dark in colour – one was black and the other dog had lighter stripes. They appeared to be some sort of rottweiler. The black dog appeared to weigh at least 150 pounds. Both dogs had vicious demeanors, were ready to attack and were foaming at the mouth and growling. Had it not been for the officer sounding his sirens, Mr. Andrews testified that he and his grandson would have been attacked. Previously, he had seen these dogs attack other dogs being walked by their owners in the neighbourhood. He recalled someone he believed to be the owner of the dogs telling Mr. Andrews the solution was for him to fence in his yard. This owner lived across the street on a 4-to-5-acre property.

3. Evidence of Kathleen Flynn:

[12] On May 24, 2020, Kathleen Flynn was at home at 174 Holyrod Drive, working in her office that faced onto the street. She heard a woman screaming and looked out her window to see her neighbour, Nikki, who lives directly across the street. Two large dogs were lunging at her. She was shielding one of her own dogs in her arms. Ms. Flynn called for her husband to see if they could help their neighbour. By the time Ms. Flynn and her husband got downstairs, her neighbour, Rob, had already run over to help Nikki. The dogs left Nikki, who then was able to get inside her house, as the dogs made unprovoked attacks at Rob. She observed Rob jumping onto Nikki’s car and the dogs scratching at the car trying to get to him. Ms. Flynn and her husband tried to get the dogs’ attention. As soon as Rob tried to get down from the car, the dogs turned back at him. As Ms. Flynn and her husband were getting the car keys, a white pickup truck backed up beside Nikki’s car and Rob jumped into the bed of the truck. The dogs then ran to the neighbours on the right and then back towards Courtice Road.

[13] Ms. Flynn described the dogs as looking like rottweilers with black and brown markings. The dogs’ demeanors were aggressive, and they were barking and growling and attacking and snarling as they scratched the car with their claws. Ms. Flynn had not seen the dogs before that day. The dogs returned to a property on Courtice Road that she described as looking like a junk yard.

[14] The video surveillance from her home showed two dogs wandering her street on May 24, 2020. The dogs matched the description given by all the witnesses, and were the dogs she had observed chasing, jumping up and growling at her neighbours.

4. Evidence of Kristine McLane:

[15] Ms. McLane was at a friend’s house when she received a text from her neighbour not to come home. Her surveillance footage did not capture the events described by other witnesses. However, it did capture the sound of dogs barking and at least one individual screaming.

[16] Months after the May 24, 2020 incident, Ms. McLane observed one of these dogs attacking another small dog being walked by an elderly lady on Courtice Road. Both dogs were large, each weighing approximately 100 pounds. They looked to be very dangerous animals. They appeared to be part rottweiler and part bulldog – one was black and the other was brindle. Ms. McLane stated that she made a complaint to a By-law Officer regarding this subsequent incident.

[17] In her neighbourhood, there were small children and other dogs. Sometimes she saw the two large dogs chained and other times they were roaming loose on the property. Their fencing was made of chicken wire, so it was not difficult for them to get loose. Ms. McLane believed the address of the property where dogs were was 3225 Courtice Road, but could not be sure of the street number. She did not know the owner and would not think to step onto that property.

5. Evidence of Durham Regional Police Officer Clinton Pipe:

[18] Just before 3:30pm on Sunday, May 24, 2020, Durham Regional Police Officer Clinton Pipe received a radio call concerning a dog complaint from Nicolette Edge. Two dogs were trying to bite people in the area. He arrived on scene about ten minutes later. The dogs were no longer at 175 Holyrod Drive in Courtice, but were heading west towards 3289 Courtice Road. They were two medium-size dogs and they appeared to be similar in style to pit bulls. One dog was black and the other was brindle. There was an elderly man in his driveway with a small child. The dogs lunged at them, as the man managed to lift the child over his head. The dogs were actively barking and trying to bite. The Officer yelled at the dogs and they jumped on his vehicle momentarily before heading back to the man and the child. The Officer honked his horn and, with one foot out the door of his vehicle, he tasered the black dog. The dog locked up and fell on its side for about five seconds and once the taser stopped, the dog got up and ran northbound on Courtice Road, following the brindle dog. Officer Pipe was advised that the dogs resided at 3325 Courtice Road.

[19] Officer Pipe attended 3325 Courtice Road. The property was gated and the gate was locked, so the officer sounded the siren to get someone to come out. The defendant, Milton Carleton, came out to meet Officer Pipe. A voir dire determined that the statements given to Officer Pipe were given voluntarily by Mr. Carleton.

[20] With the officer standing outside the gate and the defendant inside the gate, the defendant advised Officer Pipe that he owned two dogs and that the dogs were in the backyard 15 minutes prior to the officer’s arrival. Upon the officer’s arrival, the black dog, named ‘Girlie’ was locked up in the house. The officer and the defendant went out to search for “Pepper’, the brindle dog. Mr. Carleton told Officer Pipe that Pepper had previously been quarantined for similar behaviour. Once Pepper was secured, Officer Pipe removed the taser prongs from the black dog. No proof of rabies vaccination was provided to Officer Pipe. Beck Animal Hospital had these records and the dog tag numbers. Both dogs were a cross between an American Bulldog and an Australian Rottweiler. Pepper was the brindle-coloured dog and was a three-year-old female. Girlie was a black five-year-old female.

[21] Milton Carleton advised Officer Pipe that he resided in Courtice over the winter months, but stayed in Val Gagné, Ontario during the summer where the dogs could run freely on a forty-acre property and where “they killed everything on the property”.

[22] Once the dogs were secured in Mr. Carleton’s house, Officer Pipe went to 175 Holyrod Drive, where the initial complainant, Nicolette Edge, resided. She informed the officer of the incident with the dogs that took place on her property and advised that a neighbour at 162 Holyrod Drive, Rob Nash, had been bitten and there were two bites to his calf area. The officer took pictures of the bites and subsequently contacted the By-law Enforcement Officer.

6. Evidence of Municipal By-law Enforcement Officer Natalie King:

[23] On May 25, 2020, the day after these incidents, Municipal By-Law Enforcement Officer Natalie King learned what had transpired on Holyrod Drive and Courtice Road in Clarington through emails. She also received a voice message from the Durham Regional Police Officer. She learned that a dog had bitten someone and that two dogs had been running loose in the neighbourhood. As she was going through her emails, Officer King received a call from Nicolette Edge about the incident. As well, the police officer had emailed a copy of the incident report.

[24] The dogs’ owner was Milton Carleton, who resided at 3325 Courtice Road in Clarington. Officer King attended at that address and took pictures of the property that were provided as evidence. At the front of the property, one could observe the driveway to the entrance of 3325 Courtice Road, where there was wire fencing at the front of the property. From the southwest corner of the property, there was wire fencing that was about mid-chest high. From the northwest corner, one can see the driveway with mid-chest height wire fencing. The gated entrance was above shoulder height. Officer King was unable to get on the property to observe the rear fencing.

[25] Officer King had concerns regarding the height and condition of the fencing, given the power of the very muscular dogs. Furthermore, the dogs could go under the fence where there were 10- to 12-inch gaps.

[26] The officer spoke with the defendant on the telephone and he identified himself as Milton Carleton. She asked to see the enclosures where the dogs were. She subsequently attended the defendant’s property and, while waiting for a police officer escort, the defendant started speaking about the incident. She cautioned him that she had drawn up charges and anything he said could be used in court. The defendant threw up his hands and said he didn’t care and proceeded to tell the By-law Enforcement Officer about what had transpired. After a voir dire, I determined that the statements made by Mr. Carleton were given freely and voluntarily.

[27] The defendant elaborated that on May 24, 2020, he was in the driveway leveling some areas. He went inside the house to get coffee. When he came out, Girlie and Pepper were not in their pen. When Girlie did return to his property, there were prongs in her skin, while Pepper had not returned to the pen before the police officer arrived. Girlie had been tasered because she had been going after someone. Although the dogs might come across as vicious, he paints their nails and sleep with them. The police officer made him aware that one of the dogs had bitten someone and the Durham Health Department had been notified. The dogs were quarantined for ten days and Mr. Carleton planned to head to his property up north when the quarantine was over.

[28] Officer King observed the dogs’ pen located in the northeast corner of the property. It was composed of T-posts, with chain link fencing. The chain link fence was attached, not to the house, but to a piece of wood. The property is open at the back, but the defendant advised that this was okay because the properties in the nearby subdivision were fenced. Mr. Carleton was aware that the dogs were not permitted to roam freely.

[29] Officer King gave Mr. Carleton an envelope in which was a summons containing the charges. She also provided two tickets because the dogs were not properly licenced, as their licences had expired on July 12, 2018, as provided by the two “Pet Licence Proof” documents entered into evidence – one document referring to Girlie and the other to Pepper.

[30] Exhibit 6 are two “Orders to Restrain”, one for each of the dogs, issued on May 28, 2020, to Milton Carleton by Officer Natalie King.

[31] Exhibit 8 is a July 2017 “Rabies Investigation Report” for a brindle, Rottweiler/American Bulldog mix dog owned by Milton Carleton when that dog had bitten a person, leaving a puncture wound on his buttocks. The dog’s “Vaccination Status at Time of Exposed” read “Not Vaccinated”. The victim was treated with a tetanus shot and Pepper was quarantined for ten days, pursuant to an “Order of a Public Health Inspector”.

IV. THE LAW:

[32] As provided by the jurisprudence in R. v. Sault Ste. Marie (City), 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299, at pp. 1325-1326, public welfare offences, such as those found in provincial offences, are prima facie, strict liability offences. None of the offences Milton Carleton is facing contains language to suggest they are mens rea offences. Moreover, offences of absolute liability are those which the Legislature made it clear that mere proof of the prescribed act would result in a finding of guilt. That, too, is not the case here.

[33] I am satisfied that all the charges against Milton Carleton are strict liability offences. Once the prosecutor can prove the actus reus of each offence beyond a reasonable doubt, the onus then shifts to Mr. Carleton to prove, on a balance of probabilities, that he took all reasonable care to prevent the wrongful act, or was operating on a mistaken belief of facts that, if true, would render him not guilty.

V. ANALYSIS AND FINDINGS:

[34] I will start my analysis with the nine offences against Milton Carleton, followed by the two Part IX Statements.

(a) [Section 5.1](https://www.canlii.org/en/on/laws/stat/rso-1990-c-d16/latest/rso-1990-c-d16.html)(a) of [DOLA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-d16/latest/rso-1990-c-d16.html):

[35] Milton Carleton faces two charges under section 5.1(a) of DOLA. One charge relates to the dog named Girlie and the other to Pepper. That section reads:

Owner to prevent dog from attacking

5.1 The owner of a dog shall exercise reasonable precautions to prevent it from:

(a) Biting or attacking a person or domestic animal;

[36] There is clear evidence that Milton Carleton is the owner of two dogs, Girlie and Pepper. Moreover, there is overwhelming evidence that both these dogs were involved in attacks on individuals on May 24, 2020 in the area of Holyrod Drive and Courtice Road. First, the dogs attacked Jessica Nash, her husband and daughter as they escaped behind a gate at the top of the stairs onto their back deck. The dogs ran across the street on Holyrod Drive and attacked Nicoletta Edge and her small dogs as she was returning home with her two dogs and exiting her vehicle. When Rob Nash came to Ms. Edge’s rescue, the dogs turned on him and he was forced to climb onto the hood of Ms. Edge’s car to escape, as the dogs clawed the vehicle in their attempts to attack him further. It was not until another neighbour drove up with his pickup truck that Mr. Nash was able to get away from the dogs by jumping into the bed of the truck. In the end, one of the dogs had bitten Mr. Nash’s leg, resulting in puncture wounds and scratches to his calf. The terrorizing of the neighbourhood did not stop there, as the two dogs ran back across the street and aggressively confronted Charles Andrews and his grandson. Through quick thinking, Mr. Andrews hoisted the small child onto his shoulders to guard against the dogs attacking his grandson. Mr. Andrews, himself, was rescued from the attacking dogs when a Durham Regional Police Officer arrived to distract the dogs away from him. Officer Pipe, noting the aggressive behaviour of the dogs, had to taser one of them in his efforts to rescue Mr. Andrews and his grandson from a vicious attack by the dogs.

[37] Clearly this series of events, in the area of Holyrod Drive and Courtice Road on May 24, 2020, constitute attacks on persons by both Girlie and Pepper, as well as a bite to the calf of a person by one of the dogs, all of which is contrary to section 5.1(a) of DOLA.

[38] Both By-law Enforcement Office Natalie King and Kristine McLane described the flimsy fencing on the defendant’s property that appeared insufficient to keep such large, muscular dogs from leaving the property. Officer King also provided the Court with pictures she had taken of the defendant’s property on May 28, 2020, a few days after the May 24th incidents. It illustrated the flimsy wire fencing. As these events unfolded on May 24th, Milton Carleton was in his house getting coffee, leaving the two dogs unattended, untethered and roaming freely on his property. As well, both Charles Andrews and Kristine McLane testified that they had seen these same dogs roam freely in the area on previous occasions. And Ms. McLane, several months after May 24, 2020, filed a complaint after witnessing one of the dogs attack a small dog being walked by an elderly lady on Courtice Road. The defendant went so far as to advise Officer King that he allows his dogs to roam freely on the 40-acre property up north where they “killed everything on the property”. There is no evidence from the defendant that he trained or rehabilitated the dogs when he returned from the 40-acre property in the country at the end of the summer to his residential neighbourhood in Clarington. I am satisfied that Milton Carleton did not exercise reasonable precautions to prevent the dogs from the behaviour they exhibited in the area of Holyrod Drive and Courtice Road on May 24, 2020.

[39] I find that all the elements of section 5.1(a) of DOLA have been proven beyond a reasonable doubt. There is no evidence to the contrary. Furthermore, there is no evidence that Milton Carleton took reasonable care to prevent such behaviour. I find Milton Carleton guilty of two counts of failing to take reasonable precautions to prevent his two dogs, Girlie and Pepper, from biting or attacking several persons, contrary to section 5.1(a) of DOLA and convictions will be registered.

(b) [Section 5.1](https://www.canlii.org/en/on/laws/stat/rso-1990-c-d16/latest/rso-1990-c-d16.html)(b) of [DOLA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-d16/latest/rso-1990-c-d16.html):

[40] Additionally, Milton Carleton is facing two counts, one count for each of his two dogs Girlie and Pepper, under section 5.1(b) of DOLA. Section 5.1(b) states:

Owner to prevent dog from attacking

5.1 The owner of a dog shall exercise reasonable precautions to prevent it from,

(b) behaving in a manner that poses a menace to the safety of persons or domestic animals.

[41] Again, the events that occurred in the area of Holyrod Drive and Courtice Road in Clarington on May 24, 2020, as described and corroborated by many witnesses, clearly prove beyond a reasonable doubt that the defendant’s two dogs, Girlie and Pepper, behaved that day in a manner that posed a menace to the safety of several people. To many of the witnesses, the dogs appeared vicious. They were barking and growling and even frothing at the mouth as they lunged at several of the witnesses. Mr. Nash had to jump on the top of a car to escape the dogs’ vicious behaviour and Mr. Andrews had to hoist his small grandson onto his shoulders to keep the child safe from the dogs. Ms. Edge guarded one of her small dogs against her chest to keep the dogs from harming it. Officer Pipe went so far as to taser one of the dogs to get it away from Mr. Andrews and his grandson.

[42] Again, these events are clear evidence to prove beyond a reasonable doubt that on May 24, 2020, in the area of Holyrod Drive and Courtice Road, both of Mr. Carleton’s dogs Girlie and Pepper, behaved in a manner that posed a menace to the safety of several individuals and to Ms. Edge’s dogs. All these actions are contrary to section 5.1(b) of DOLA.

[43] Furthermore, as stated above, there is no evidence that Milton Carleton took reasonable precautions to prevent such behaviour. The dogs roamed freely and unattended on his property where the fencing has been described as insufficient to keep the dogs from escaping off the property. On more than one occasion, the dogs were seen roaming freely in the neighbourhood, where they proved to be a menace, as is supported by the need to quarantine Pepper for biting someone in the past. Despite these prior incidents, Milton Carleton took insufficient precautions to prevent further occurrences from happening again and again.

[44] I am satisfied that all the elements of section 5.1(b) of DOLA have been proven beyond a reasonable doubt. There is no evidence to the contrary. I find Milton Carleton guilty of two counts of failing to exercise reasonable precautions to prevent his two dogs, Girlie and Pepper, from behaving in a manner that posed a menace to safety of persons and domestic animals, contrary to section 5.1(b) of DOLA and convictions will be registered.

(c) Section 3.5 of The Corporation of the Municipality of Clarington By-Law 2013-024, Responsible Pet Owner’s By-Law:

[45] Further, Milton Carleton is charged with two counts under section 3.5 of the By-Law, one relating to his dog Girlie and the other relating to Pepper. That section reads as follows:

3.5 No pet owner shall permit the pet to be at large anywhere in the Municipality other than in a Leash Free Area.

[46] As recounted in the evidence above, I find that on May 24, 2020, in the area of Holyrod Drive and Courtice Road in the Municipality of Clarington, Milton Carleton allowed his two dogs to roam freely without a leash and to terrorize the neighbourhood. The fencing on his property, some of which was made with chicken wire, appeared woefully inadequate and had gaps that would permit Girlie and Pepper to escape the property and roam freely at large. The defendant had gone inside his house to get coffee, leaving both dogs free to escape his property and find their way onto Holyrod Drive and then back onto Courtice Road, as is evidenced by viva voce testimony of several witnesses and the video surveillance of Kathleen Flynn.

[47] Under the By-Law, “Leash Free Area” means an area designated by the Municipality in which dogs are not required to be on a leash and “leash” means a strap, cord or chain that is designed to restrain the breed of pet it is controlling”.

[48] There is no evidence that on May 24, 2020, in the area of Holyrod Drive and Courtice Rod in Clarington, Girlie and Pepper were restrained by a leash as they roamed at large. As well, I am satisfied that the area where these events occurred, like virtually all similar residential neighbourhoods, was not designated as a leash-free area.

[49] I am satisfied that all the elements of section 3.5 of the By-Law have been proven beyond a reasonable doubt. There is no evidence to the contrary. Once again, as stated above, I find no evidence, even on a balance of probabilities, that Milton Carleton took reasonable care to prevent these wrongful actions of his two dogs from occurring. I find Milton Carleton, as owner of the dogs, guilty of two counts of allowing Girlie and Pepper to be at large on May 24, 2020, in the neighbourhood of Holyrod Drive and Courtice Road in Clarington, contrary to section 3.5 of the By-Law. Convictions will be registered.

(d) Section 3.6 of The Corporation of the Municipality of Clarington By-Law 2013-024, Responsible Pet Owner’s By-Law:

[50] Milton Carleton is charged with two counts under section 3.6 of the By-Law, which states:

3.6 No pet owner shall permit the pet, whether leashed or unleashed, to enter onto private property without the consent of the owner or occupant of the property.

[51] Clearly, on May 24, 2020, Girlie and Pepper entered the private property of several residents in the area of Holyrod Drive and Courtice Road in Clarington. Without a doubt, the evidence of Ms. Nash and Mr. Andrews, satisfy me that neither Girlie nor Pepper were welcome onto their properties, nor did Ms. Edge consent to the dogs coming onto her property.

[52] Therefore, I am satisfied that all the elements of section 3.6 of the By-Law have been proven beyond a reasonable doubt. Milton Carleton, as the owner of Girlie and Pepper, took no reasonable steps to prevent his dogs from escaping from his property and thereby permitted them to enter without consent onto the property owned by the Nash family, the property owned or occupied by Charles Nash, and that of Ms. Edge. I find the defendant guilty of two counts contrary to section 3.6 of the By-Law and convictions will be entered.

(e) Section 3.8 of The Corporation of the Municipality of Clarington By-Law 2013-024, Responsible Pet Owner’s By-Law:

[53] Milton Carleton is charged with one count under section 3.8 of the By-law, which reads:

3.8 No dog owner shall allow its dog to bite a person or another domestic animal.

[54] The evidence is abundantly clear. The brindle dog bite Mr. Nash’s leg, as is unmistakably illustrated by the puncture marks above his ankle in photographs entered into evidence by Ms. Nash. Moreover, without knowledge of the rabies vaccination status of the dog, Mr. Nash had to attend his Family Doctor Walk-in Clinic on May 25, 2020. From the information the defendant gave to Officer Pipe, the brindle dog was named ‘Pepper’.

[55] Therefore, I am satisfied that all the elements of section 3.8 of the By-law have been proven beyond a reasonable doubt. Milton Carleton, as the owner of Pepper, allowed his dog Pepper to roam freely on May 24, 2020, during which time it bit Mr. Nash on his leg. I find the defendant guilty of one count contrary to section 3.8 of the By-law and a conviction will be entered.

(f) Two Statements under Part IX, Section 161 of the [Provincial Offences Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p33/latest/rso-1990-c-p33.html):

[56] Subsection 4(1) of DOLA reads:

Proceedings against owner of dog

4(1) A proceeding may be commenced in the Ontario Court of Justice against an owner of a dog if it is alleged that,

(a) the dog has bitten or attacked a person or domestic animal;

(b) the dog has behaved in a manner that poses a menace to the safety of persons or domestic animals; or

(c) the owner did not exercise reasonable precautions to prevent the dog from,

(i) biting or attacking a person or domestic animal, or

(ii) behaving in a manner that poses a menace to the safety of persons or domestic animals

[57] Subsections 4(1.2) and 4(1.3) of DOLA continue:

Nature of proceeding

4(1.2) Part IX of the Provincial Offences Act applies to a proceeding under this section.

Standard of proof

4(1.3) Findings of fact in a proceeding under this section shall be made on a balance of probabilities.

[58] Before me are two Statements under section 161, which is contained in Part IX of the Provincial Offences Act, one Statement relating to a female dog identified as “Girlie”, a black American Bulldog/Rottweiler cross and the other relating to a female dog identified as “Pepper”, a brindle American Bulldog/Rottweiler cross. In each of these two Statements, it is alleged that on May 24, 2020, in the area of Courtice Road and Holyrod Drive in the Municipality of Clarington, Milton George Carleton of 3325 Courtice Road in Clarington:

1. is the owner of the dog which has bitten or attacked a person or domestic animal; or

2. is the owner of a dog that has behaved in a manner that poses a menace to the safety of persons or domestic animals; or

3. contravened a provision of DOLA or the regulations made under the Act or a court order made under the Act.

[59] Given these allegations and the Statements being brought under Part IX, Section 161 of the Ontario Provincial Offences Act, in accordance with subsections 4(1) and 4(1.2) of DOLA, I have jurisdiction to proceed with these two Statements. Based on my findings above, I am satisfied that the defendant, Milton Carleton, is the owner of Girlie and Pepper. Although Subsection 4(1.3) of DOLA sets a standard of proof on a balance of probabilities, I have found that these allegations have been proven beyond a reasonable doubt, as Milton Carleton, the owner of Girlie and Pepper, allowed his dogs to bite and/or attack several individuals on May 24, 2020. Moreover, I am also satisfied beyond a reasonable doubt that his two dogs behaved in a manner that posed a menace to the safety of several individuals and pets that day. Finally, having found Mr. Carleton guilty of 4 offences, two of them under section 5.1(a) and the other two under section 5.1(b) of DOLA, there is no doubt that the defendant contravened a couple of provisions of that Act.

[60] I am being asked to make an Order on each of the Statements, as provided by section 4 of DOLA,

(a) that the dog be destroyed; or

(b) that the owner of the dog take such steps as the court orders for the more effective control of the dog or for purposes of public safety.

[61] Subsection 4(3) of DOLA states,

Final order

4(3) If, in a proceeding under subsection (1), the court finds that the dog has bitten or attacked a person or domestic animal or that the dog’s behaviour is such that the dog is a menace to the safety of persons or animals, and the court is satisfied that an order is necessary for the protection of the public, the court may order,

(a) that the dog be destroyed in the manner specified in the order; or

(b) that the owner of the dog take the measures specified in the order for the more effective control of the dog or for purposes of public safety.

[62] Based on my findings and reasons provided above, I find that an order is necessary for the protection of the public. I must now decide whether Girlie and Pepper are to be destroyed or whether the owner of these dogs must take steps for more effective control of them and for purposes of public safety. Subsection 4(4) of DOLA outlines some examples of measures for more effective control of a dog:

Examples, measures for more effective control

4(4) Some examples of measures that may be ordered under subsection (2) or (3)(b) are:

1. Confining the dog to its owner’s property.

2. Restraining the dog by means of a leash.

3. Restraining the dog by means of a muzzle.

4. Posting warning signs.

[63] In determining if and to what extent an order is appropriate in these circumstances, I am guided by the considerations provided in subsection 4(6) of DOLA as follows:

Considerations

4(6) Except as provided by subsections (8) and (9), in exercising its powers to make an order under subsection (3), the court may take into consideration the following circumstance:

1. The dog’s past and present temperament and behaviour.

2. The seriousness of the injuries caused by the bite or attack.

3. Unusual contributing circumstances tending to justify the dog’s action.

4. The improbability that a similar attack will be repeated.

5. The dog’s physical potential for inflicting harm.

6. Precautions taken by the owner to preclude similar attacks in the future.

7. Any other circumstances that the court considers to be relevant.

[64] Subsections 4(8) and 4(9) apply when the court finds that the dog is a pit bull, which is not the case in this matter.

[65] Firstly, the events of May 24, 2020 were not the first time Milton Carleton’s dogs terrorized other people and pets. In fact, the Court was provided with records showing that on July 4, 2017, both of Milton Carleton’s dogs had gotten loose and Pepper had bitten Dave Chouinard. In May 2020, the defendant advised the officer that his dog, Pepper, had been quarantined for ten days in the past as a result of biting a person. Additionally, many of the witnesses advised the Court that the dogs had been seen roaming freely in the neighbourhood prior to May 24, 2020, attacking other dogs. A few months after May 24th, the dogs again were roaming the streets freely and had attacked a small dog being walked by an elderly lady.

[66] Secondly, on May 24, 2020, Rob Nash was bitten by one of Milton Carleton’s dogs. The bite was sufficiently severe as to break the skin and leave puncture marks clearly visible on his lower leg. The attacks on Ms. Edge and her dogs and Mr. Andrews and his small grandson, although not resulting in bites, were so serious that Officer Pipe tasered one of the dogs to get them away from Mr. Andrews and his grandson. Had Ms. Nash and her small daughter not been behind a gate, I fear they, too, could have been seriously attacked by the dogs. The muscular dogs’ behaviours were described by several witnesses as aggressive, vicious, barking, snarling, growling, ready to attack and even foaming at the mouth. These are not trifling events, but incidents this Court takes very seriously.

[67] Thirdly, I can find no contributing circumstances tending to justify the dogs’ actions. In fact, Ms. Flynn described the dogs’ attack on Mr. Nash as “unprovoked”.

[68] Fourthly, I must consider the improbability that a similar attack will be repeated. Without knowledge of any training or rehabilitation of his dogs, without evidence that the defendant voluntarily would chain and/or muzzle his dogs when they were outside the residence and without evidence that the defendant’s fencing to his property and the dogs’ pen has been made secure, I would expect further attacks by Girlie and Pepper, such as those of May 24, 2020, to occur.

[69] The fifth consideration is the dogs’ physical potential for inflicting harm. The witnesses described both dogs as muscular and each weighing at least 100 pounds. As well as adults, there appears to be many small, vulnerable children in the neighbour who would be defenceless against an attack by either of these dogs. As well, the small pets in this area could be seriously injured or killed, as Mr. Carleton advised that, during the summer months, he allows his two dogs to roam freely over his 40-acre Val Gagné property “killing everything on the property”.

[70] I am not aware of any precautions that Milton Carleton has taken to preclude similar attacks in the future. As stated above, I know of no training or rehabilitative programs he and his dogs have taken, nor am I aware of any re-enforcements made to fence his two muscular dogs on his property. Neither dog was leashed or muzzled on May 24, 2020 and there is no evidence that they are muzzled at any time when outside Mr. Carleton’s house.

[71] Finally, the only other consideration I deem relevant is the apparent cavalier attitude Milton Carleton takes with his dogs, even after several incidents where they have roamed freely in the residential neighbour where there are several children and pets at risk of attack by the two dogs and even after they have bitten people and animals on more than one occasion. These are not the actions of a responsible pet owner. The defendant, Milton Carleton, is the antithesis of a pet owner who has a community conscience. His cavalier attitude towards ensuring his neighbours, who have small children and pets, are able to have peaceful enjoyment of their property and neighbourhood without fear that two large, muscular, aggressive, freely-roaming dogs may attack is selfish and reprehensible.

[72] I understand that, to date, the dogs have not been seized by Clarington Animal Control, as may be done in accordance with s.13 of DOLA. The incidents on May 24, 2020 occurred when these services were not fully staffed due to the Covid-19 pandemic. At the advice of her manager, Officer King did not take custody of the dogs, as it could have had the effect of making them more aggressive, due to the extra stress that would have been placed on them in a kennel. To date, there has been no further incidents of which I have been aware wherein either Pepper or Girlie have been seen in the neighbourhood. The Prosecutor has advised me that it is believed that Milton Carleton no longer resides in the neighbourhood.

[73] Because I cannot be sure that Milton Carleton and his dogs, Pepper and Girlie, no longer resides at or will not return to 3325 Courtice Road in Clarington, I will be putting in place two Orders as requested under the Statements.

VI. CONCLUSION

[74] As stated above, I am satisfied that Milton Carleton is the owner of Girlie and Pepper. For the reasons I have provided, I am satisfied that it has been proven beyond a reasonable doubt that Milton Carleton is guilty of two counts under s.5.1(a) of DOLA, two counts under s.5.1(b) of DOLA, two counts under s.3.6 of Clarington By-law 2013-024, two counts under s.3.5 of Clarington By-law 2013-024 and one count under s.3.8 of Clarington By-law 2013-024. There is no evidence to the contrary – no evidence on a balance of probabilities that the defendant, Milton Carleton, took any reasonable precautions to prevent these May 24, 2020 incidents from occurring. There will be findings of guilt on all nine charges and convictions will be registered.

[75] Moreover, for the reasons provided above, I am satisfied that an Order under each of the two Statements is necessary to protect the public from further terrorizing by or harm from Milton Carleton’s two dogs, Girlie and Pepper.

[76] I will hear submissions on sentencing for each of the nine charges and for each of the two Orders requested by the two Statements under s. 161 of the POA.

Released: August 23, 2023

Signed: Justice of the Peace M. Coopersmith