ONTARIO COURT OF JUSTICE
DATE: 2025-03-12
COURT FILE No.: 4862 999 00 2953287F-00
BETWEEN:
THE KING (CITY OF TORONTO)
----- AND ------
KARMEN GAZVODA
Before Justice of the Peace Beverly Brooks
Heard on February 24, 2025
Reasons for Judgment released on March 12, 2025
C. Morais Bernardo — counsel for the Prosecution
K. Gazvoda — Acting on her own Behalf
JUSTICE OF THE PEACE BROOKS:
INTRODUCTION:
[1] I conducted this Part I trial under the Provincial Offences Act, R.S.O. 1990, on February 24, 2025 in Toronto. The defendant, Karmen Gazvoda, was self-represented. The Prosecutor was Ms. C. Morais Bernardo.
THE CHARGES:
[2] Karmen Gazvoda was charged on August 1, 2024 with violating Chapter 349 Section 12a of the Toronto Municipal Code. Under Chapter 349 Section 12a of the Toronto Municipal Code, a dog owner is not allowed to let their dog run at large (unleashed) in the City of Toronto. Chapter 349 Section 12a of the Toronto Municipal Code states that:
“No owner of a dog shall cause or permit the dog to be at large in the City, including, but not limited to, upon or in any lands or grounds owned or operated by the City, such as sidewalks, curbs, boulevards, walkways or other public places owned by the City, except where expressly permitted by City by-law.”
[3] Ms. Karmen Gazvoda is self-represented. She entered a plea of not guilty to this offence.
PROSECUTION’S EVIDENCE
[4] The Prosecutor’s evidence is based on the Evidence Act Notice (Exhibit 1) issued by the City of Toronto and served after October 20, 2024 (mailed on October 20, 2024) to Ms. Gazvoda and the video (Exhibit 2) provided by Karen Luscombe (the complainant) as well as the testimonies of Officer Johnathan Neudorf, badge 6374, a City of Toronto Animal Care and Control Officer, and Karen Luscombe.
[5] The Prosecutor also submitted as evidence a front door camera video produced by Ms. Luscombe’s household security system.
[6] The Prosecutor provided a certified copy of Chapter 349 Section 12a of the Toronto Municipal Code to the court.
EVIDENCE OF THE PROSECUTION:
Testimony of Karen Luscombe:
[7] Karen Luscombe, Karmen Gazvoda’s neighbour, testified that on August 1, 2024 at 6:45 AM she saw George Mazomenos, Ms. Gazvoda’s husband, pick up his wife’s dog on her (Ms. Luscombe’s) property at 23 Humewood Drive, Toronto, and put a leash on this dog. Ms. Luscombe also stated that Ms. Gazvoda’s other dog, which was also unleashed, then came running across her (Ms. Luscombe’s) property and that Mr. Mazomenos put a leash on the other dog too. Mr. Mazomenos then walked away with both dogs and led the dogs back to his property (25 Humewood Drive), which is beside Ms. Luscombe’s property.
[8] The Prosecutor played the video which was produced by Ms. Luscombe’s front door home security camera and provided to the City of Toronto by Ms. Luscombe. This video showed part of the front lawns and driveways of both Ms. Gazvoda’s and Ms. Luscombe’s front yards that are located on Humewood Drive. The video shows Ms. Gazvoda’s dog running unleashed on Ms. Luscombe’s front yard and then Mr. Mazomenos putting a leash on the dog and walking the dog back to his property. In the video, a second dog then runs over to Ms. Luscombe’s property as Mr. Mazomenos is putting the leash on the first dog. Mr. Mazomenos is then seen putting a leash on the second dog and walking both dogs back to his property. Ms. Luscombe testified that no one else had access to her front door security camera and that revisions could not be made to the video. This video was marked as Exhibit 2.
[9] The court asked Ms. Luscombe to identify which property was hers in the video and which property in the video belongs to Ms. Gazvoda. Ms. Luscombe indicated that her property was on the left side of the video screen as one watches the video. The video showed the front driveway and part of the front yard of Ms. Luscombe’s property and the right side of the video showed Ms. Gazvoda’s property which includes a driveway and a front lawn. Beyond the two properties one can see the street which is Humewood Drive.
Cross-Examination of Ms. Luscombe:
[10] Ms. Gazvoda asked Ms. Luscombe several times whether she (Ms. Luscombe) had dug holes in her (Ms. Luscombe’s) back yard below the fence. Each time Ms. Gazvoda asked this question, Ms. Luscombe responded that she was “in court to address the issue of dogs being off leash”. While providing these responses, Ms. Luscombe was noticeably uncomfortable. Ms. Luscombe then told Ms. Gazvoda to ask Officer Neudorf the same question i.e. Ms. Luscombe refused to answer Ms. Gazvoda’s question directly even though Ms. Gazvoda asked the same question a number of times, but finally replied, “I don’t recall.”
Testimony of Officer J. Neudorf:
[11] Officer J. Neudorf testified that he is employed by the City of Toronto, Toronto Animal Services, as an Animal Care and Control Officer. He conducted the investigation into this matter.
[12] On July 30, 2024, Officer Neudorf received a complaint about two dogs off leash on multiple dates on the property of Ms. Gazvoda’s neighbour, Ms. Karen Luscombe. He viewed the front door security system video footage of an incident on August 1, 2024 at 6:45 AM taken from Ms. Luscombe’s home. He reviewed the footage on August 8, 2024, and he observed two dogs off leash on the front lawn of 23 Humewood Drive, Toronto. He observed a male grab both dogs. On August 13th, he spoke to George Mazomenos and Karmen Gazvoda, who said they did not recall an August 1, 2024 incident. At this time, he issued a POA notice to Ms. Gazvoda. On August 16, 2024, he contacted the complainant with the outcome of this investigation.
[13] An Evidence Act Notice was mailed to Ms. Gazvoda on October 20, 2024. The Evidence Act Notice stated that Karmen Gazvoda had violated Chapter 349 Section 12a of the Toronto Municipal Code by allowing her dogs to run at large (unleashed) in the City of Toronto. This Evidence Act Notice was marked as Exhibit 1. Officer Neudorf indicated that he had his notes on this file since July 20, 2024.
[14] The Prosecutor also provided evidence of Ms. Gazvoda’s ownership of one of the dogs by presenting a Pet Licence Certificate (Exhibit 3) for Ms. Gazvoda’s dog called Pepper. The Pet Licence Certificate, which was issued on October 1, 2021 (expired on Oct. 1, 2022), indicated that Ms. Gazvoda was the owner of the dog. The breed of the dog on the Pet Licence Certificate was listed as Pomeranian/Siberian Husky.
[15] Officer Neudorf was surprised that the Prosecutor only had one licence in court, since both dogs are registered under the City of Toronto’s computer system, as registered to Ms. Gazvoda.
Cross-Examination of Officer Neudorf:
[16] Ms. Gazvoda asked Officer Neudorf whether he saw holes under the fence which divides her property and Ms. Luscombe’s property when he came to her residence on August 13, 2024 to discuss the August 1, 2024 incident. He replied that he did recall speaking to Ms. Gazvoda about the issue on August 13, 2024, and he did observe the holes under the fence, and said he recalled the wiring when asked if he saw it bent upwards or removed. He confirmed he had made notes regarding the holes.
[17] Ms. Gazvoda also asked the officer if he thought that her dogs could walk through the holes under the fence to Ms. Luscombe’s property. The Officer testified that when he spoke to Ms. Gazvoda and her husband on August 13, 2024 about the dogs being off leash on August 1, 2024, he saw the holes in the fence in her backyard. He noted that the wire mesh underneath the fence that separates the two properties was removed and bent. The Officer also testified that he thought the dogs could pass through the holes under the fence and gain access to Ms. Luscombe’s property.
[18] Ms. Gazvoda wanted to ask Officer Neudorf if he asked Ms. Luscombe if she claimed that she did not dig the holes in the fence, but the Prosecutor objected and I did not allow this question because it would be hearsay.
EVIDENCE OF THE DEFENCE
[19] Ms. Gazvoda and her husband, George Mazomenos, testified.
Testimony of Mr. Mazomenos:
[20] Mr. George Mazomenos testified that he had built a tall sturdy fence around their back yard at 25 Humewood Drive. He stated that he had “dog proofed” the fence by placing wire mesh under the fence so that the dogs could not dig under the fence and escape from their back yard. He also testified that he dug a trench and put wire mesh under the fence at the same time that the fence was built in 2022. He provided photos of the fence dated May 11, 2022 (Exhibit 4) that showed a very high sturdy wooden fence surrounding the back yard. He testified that the neighbours dug holes under the fence he built.
[21] Mr. Mazomenos also provided three photos date stamped May 31, 2023 (collectively Exhibit 5), which according to Mr. Mazomenos, were images of John Crawford, the husband of Ms. Luscombe, with a shovel digging under their (Ms. Gazvoda’s and Mr. Mazomenos’) back yard fence, along with a photograph of a “digger” whom he believes they hired.
[22] Mr. Mazomenos testified that for several years he and his wife had discovered a number of holes in the fence that separates the backyards of the properties at 23 Humewood Drive and 25 Humewood Drive. He testified that when he discovers these holes, he fills them with wood and bricks. He stated that since the fence was built in 2022, he and his wife had discovered new holes under their backyard fence. Mr. Mazomenos also indicated that when he and his wife went to their out-of-town property on the weekend, they sometimes found new holes in the fence when they returned. He commented that he did not think that the neighbours would “dig down the property line” which is 200 feet deep, after the police came to their property when he and Ms. Gazvoda complained to police about the neighbours digging holes under the fence.
[23] He stated that the reason the dogs were on the neighbour’s property without his knowledge was because the neighbours continued to dig holes under the fence that enabled their dogs to enter the neighbour’s property. He emphasized that in spite of Ms. Gazvoda’s and his efforts to keep their dogs on their property and to ensure the holes under their fence are filled, their neighbours continue to dig holes under the fence that enable their dogs to enter their neighbour’s property.
[24] Mr. Mazomenos also testified that Officer Neudorf saw the holes in the fence which were filled with wood and bricks when the officer spoke to his wife and him on August 13, 2024 about the dogs being off leash on a property that did not belong to them. Mr. Mazomenos also stated that Officer Neudorf saw that the wire mesh (that Mr. Mazomenos had installed under the fence to prevent their dogs from being on the neighbour’s property) had been removed when Officer Neudorf spoke to them about their dogs being on property not owned by them on August 13, 2024.
[25] Mr. Mazomenos also testified that on August 1, 2024, he was going to walk the dogs, and he opened the back door to his yard for them while he was putting his shoes on. He testified that “one minute later”, he saw the dogs were gone, and so he proceeded to the front of the house. He said they must have found a new hole.
[26] He testified that the dogs are well-trained, that he had treats in his pocket, and when he yelled at their dogs, they came to him.
Cross-Examination of Mr. Mazomenos:
[27] The Prosecutor asked him if he installed the wire mesh under the fence in May of 2022, and he confirmed that was correct.
[28] She referred him back to one of the photographs in Exhibit 5, which showed someone doing work in a backyard, and asked if this was not his own yard. He replied that was correct. He identified it as Ms. Luscombe’s backyard.
[29] She also asked him about his testimony that he would return from being away for the weekend and finding more holes under the fence. He confirmed that he did not see who dug those holes upon his return after weekends away.
[30] The Prosecutor asked him since he was aware of what was happening, why he let the dogs into his backyard when they might escape? He stated, “I did not think my neighbour would keep doing things out of spite and dig more holes like that after I addressed the matter with the police and the bylaw enforcement people.” He added that the neighbours had compromised the footings of the fence and dug under the driveway.
[31] There was no redirect of this witness.
Testimony of Karmen Gazvoda:
[32] Ms. Karmen Gazvoda testified that she did not permit her dogs to be at large. She was adamant that it was her neighbours who caused the dogs to be at large on August 1, 2024, by digging holes under her fence.
[33] She testified that she and her husband had built the fence to keep their dogs contained on their property. The only reason why they escaped is because of the holes that her neighbours had dug. She stated, “we built a robust fence, even reinforced with mesh wiring, which they dug up.”
[34] Ms. Gazvoda testified that her dogs are very “well trained”. She insisted that she does not walk her dogs off leash and agrees with the requirement that dogs should be leashed.
[35] Ms. Gazvoda also stated that she and her husband had complained to police about their neighbour’s attitude towards their dogs and their neighbour’s hole digging behaviour. The police told Ms. Gazvoda that they (the police) could not address the matter as it was a civil matter.
[36] Ms. Gazvoda testified that Ms. Luscombe, her neighbour, and Ms. Luscombe’s partner, Mr. Campbell, dug holes under their fence and that she and her husband had tried to fill in the holes under the fence with wood and bricks so that their dogs would remain in their backyard but that these holes continued to reappear.
[37] Ms. Gazvoda stated that she and her husband had built a high sturdy wooden fence in their backyard as a way of ensuring that their dogs stayed on their property because the neighbours had complained about their dogs in the past and that, unfortunately, she and her husband have “had issues with Ms. Luscombe for several years”.
[38] Ms. Gazvoda was not cross-examined.
FINAL SUBMISSIONS:
[39] Ms. Gazvoda declined to make any further submissions.
Prosecutor’s Submissions:
[40] The Prosecutor referred to the video taken on August 1, 2024 which showed the defendant’s dogs off leash and on the complainant’s property.
[41] The Prosecutor also acknowledged that Mr. Mazomenos has built a sturdy fence to ensure that their dogs remained on their property and noted that the fence had been built in 2022.
[42] The Prosecutor noted that the defendant and her husband had submitted evidence (photos) which showed that their neighbours who had complained about their dogs being on their property, had dug holes under the fence between their properties. The Prosecutor also noted that there may be other issues that were causing tension between Ms. Gazvoda and her husband and Ms. Luscombe. The Prosecutor, however, questioned why the defendant and her husband would let their dogs run free in their backyard if their neighbours were complaining about their dogs running unleashed on their property and if they suspected that their neighbours were digging holes under the fence which allowed the dogs to escape from the yard and run into the neighbour’s yard.
[43] The Prosecutor relied upon the evidence and the Toronto Municipal Code and left it in the court’s hands.
ISSUE:
[44] Has the Prosecutor proven beyond a reasonable doubt that the defendant caused or permitted her dogs to be at large in the City?
ANALYSIS:
[45] I have considered the credibility of each witness, as described below.
The Credibility of the Witnesses:
[46] I am relying on the Supreme Court of Canada in R. v. Gagnon, 2006 SCC 17 at para. 20 to assess the credibility of all the witnesses except for the defendant:
Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events…
[47] In assessing their credibility, I am also relying on Farnya v. Chorny, 1951 BCCA 252, at page 357, where O’Halloran, J.A. held:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…
[48] In assessing the credibility of Officer Neudorf, I find his evidence to be generally credible. His evidence was clear. He had a good recollection of his investigation and his viewing of the video dated August 1, 2024 of the dogs off leash. He spoke to the complainant and the defendant and her husband. Nevertheless, he only referred to the holes dug under the fence separating the two properties during cross-examination, even though he admitted during cross-examination that he made notation of those holes in his investigative notes. I find that his investigation of this matter lacked context and insight.
[49] In terms of the testimony of Karen Luscombe, the complainant, I find her to be very evasive and her testimony to be self-serving. During her cross-examination, she was asked numerous times about the holes under the fence, and she repeatedly refused to answer the question put to her about whether she was responsible for them, and then finally claimed she could not recall. I reject her evidence and give her testimony no weight.
[50] With respect to George Mazomenos, I find that his testimony was credible. He was not shaken during cross-examination. He acknowledged instances when he had no direct knowledge of who dug the holes upon his return to the home after being out of town on weekends, for example. He also referred to their photographs where he identified the complainant’s husband in one photograph on the other side of their fence, with a shovel, and another photograph in which he referred to an unknown “digger” on their side of the fence. I accept his evidence as true that he built a sturdy fence, dug trenches under it and installed wire mesh to keep their dogs secure in their fully fenced backyard.
[51] With regard to the testimony of the defendant, Karmen Gazvoda, I rely upon the test in R. v. W.(D.), [1991] 1 S.C.R. 742, where Cory, J. held:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[52] I have considered her evidence carefully. She was a credible witness. Her evidence was clear, and unshaken. Her voice changed and she became very emotional when she recounted how hard she and her husband have tried to care for their dogs. Her testimony was in harmony with that of her spouse, regarding the fence which was built by them including mesh under it to contain their dogs, and the efforts made by their neighbours to sabotage it structurally.
[53] The key element of credibility is the honesty of the witness, and I find that the defendant and her husband were honest during this trial. I am relying on the first test within W.D.
[54] To determine if the defendant is guilty, we must examine whether the Prosecutor has established a prima facie case. The Prosecutor must prove that the defendant committed a “guilty” act. A video was shown at this hearing of the dogs on her neighbour’s front lawn temporarily running unleashed on August 1, 2024.
[55] I find that Ms. Gazvoda and her husband did their utmost to fill in any holes under their fence which according to their photos and testimony were dug by their neighbours.
[56] There is no dispute that the properties in question are located at the following addresses: 25 Humewood (Ms. Luscombe) and 23 Humewood Avenue (Ms. Gazvoda). The property owners have both verified their addresses.
[57] The Pet Registration Certificate issued on Oct. 1, 2021 for one of Ms. Gazvoda’s dogs indicates that this dog’s owner was Ms. Gazvoda. She confirmed that the dogs in question belong to her, which was corroborated by her husband and by Officer Neudorf.
[58] The Pet Registration Certificate listed the breed of Ms. Gazvoda’s dog as a Pomeranian/Siberian Husky cross. Neither breed is considered an aggressive breed of dog. When viewed on the video, the dogs appeared to be small dogs, similar to terriers, that were quickly caught and leashed by Mr. Mazomenos and then obediently followed him back to Ms. Gazvoda’s and Mr. Mazomenos’ property.
[59] The video provided by Ms. Luscombe shows that Ms. Gazvoda’s dogs did run off leash on the neighbour’s property for a short period of time (a few minutes – probably 2 minutes) but the dogs did not exhibit aggressive behaviour and were quickly caught and leashed by Mr. Mazomenos.
[60] Based on the evidence before me, I am satisfied that the Prosecutor has established a prima facie case against the defendant that the dogs were off leash for a very brief period on August 1, 2024.
[61] However, the photos provided by Ms. Gazvoda’s husband of Ms. Luscombe and Mr. Campbell digging holes under Ms. Gazvoda’s fence and the testimonies of both Ms. Gazvoda and Mr. Mazomenos indicate that the neighbours appear to be carrying out a campaign of intentional sabotage to portray Ms. Gazvoda’s dogs in a very unfavourable light with serious implications (increasing the risk that Ms. Gazvoda would be convicted of allowing her dogs to run off leash within the City of Toronto). Such a campaign placed Ms. Gazvoda’s ability to enjoy her dogs without any negative repercussions in jeopardy. Ms. Gazvoda and Mr. Mazomenos called the police and reported that the neighbours were creating holes in a fence that they had built to keep their dogs on their property and then complaining that their owners were allowing their dogs to run unleashed on property they did not own.
[62] Under the common law, the defendant has the right to the quiet enjoyment of her property, which includes her fully fenced backyard and her dogs. This common law right does not conflict with this provision of the Toronto Municipal Code, since the bylaw only prohibits the owner of a dog from causing or permitting the dog to be at large in the City.
[63] The defendant has established that she did not “cause” nor did she “permit” her dogs to be off leash, in that she and her husband went to great effort to build and maintain a full fence around their property, and reinforced it, to contain their dogs. I accept their evidence based on the photographs tendered at this hearing that this fence was deliberately damaged causing needless jeopardy to the safety of her dogs and to her quiet enjoyment of same in her own backyard.
[64] The defendant and her husband built a very tall, sturdy fence in their backyard in May 2022 to ensure that their dogs remained on their property when not on a leash. Not only did Ms. Gazvoda and her husband build a tall sturdy fence around their backyard but they also dug trenches and placed wire mesh under the fence to prevent the dogs from crawling under the fence and gaining access to the neighbour’s property. I also accept that they regularly maintain this fence.
[65] The defendant presented photos during the trial which show what the defendant and her husband maintain are Ms. Luscombe’s partner, Mr. Campbell, digging holes under the back yard fence between the properties at 23 and 25 Humewood Drive. Ms. Luscombe refused to answer very clear questions during her cross-examination regarding her involvement in the digging of these holes, and then finally said she had no recollection, despite the fact that the defendant and her husband had already called the police and the municipality to complain of same.
[66] Ms. Luscombe and Mr. Campbell appear to be trying to sabotage their neighbour’s ability to enjoy their yard and their dogs by digging holes under the fence between their two properties. Ms. Gazvoda admitted during the trial that she and her husband have had issues with their neighbours.
[67] I have considered Ms. Gazvoda’s testimony carefully, and I find it to be credible. Her testimony was clear, and unshaken during cross-examination. I accept that the photos at Exhibit 4 are accurate depictions of the fence between the two properties and that the photos at Exhibit 5 show their neighbours in the process of creating holes that allow Ms. Gazvoda’s dogs to escape into the neighbour’s yard.
[68] I fully accept the testimony of the defendant’s husband that he only let the dogs out of their back door into their own fenced backyard for “a minute” while he put on his shoes, only to find that they had escaped through a new hole under their fence. This testimony was corroborated by the video of him carrying both leashes when he called the dogs back from their neighbour’s front lawn, within what I estimate is 2 minutes from the time he opened the backdoor of their home.
[69] Based on my findings of fact, I find that Ms. Gazvoda has established a valid defence in this matter. She did not cause or permit her dogs to be at large in the City, nor did her husband, for that matter.
ORDER:
[70] The court finds the defendant, Ms. Gazvoda, not guilty.
Released: March 12, 2025
HW Beverly Brooks