ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-4-054-00AP
DATE: 20120921

BETWEEN:

HER MAJESTY THE QUEEN – and – CHRISTOPHER MUNROE Appellant

Jason Gorda, for the Crown/Respondent
Tina Yuen, for the Appellant

HEARD: June 14, 2012

M.A. CODE, J.

REASONS FOR JUDGMENT

A. OVERVIEW

1The Appellant Christopher Munroe (hereinafter, Munroe) was charged in a four count Information with unlawfully killing one dog (known as Abby) and unlawfully wounding a second dog (known as Zoe), contrary to s. 455(1) (a) of the Criminal Code. The other two counts alleged wilfully causing unnecessary suffering to the same two dogs, contrary to s. 455.1(1)(a). The Crown proceeded summarily on all four counts.

2The four offences were alleged to have taken place during a two month time period from mid-April to mid-June 2008. The two dogs were small Boston Terriers and they belonged to Munroe’s girlfriend Katherine Cappella. Munroe lived with her during the relevant time period at her house in Toronto.

3The charges were laid on August 28, 2008 and the trial took place before O’Donnell J. on October 19 and 20, 2009. The trial judge reserved judgment and delivered detailed written reasons on December 8, 2009, finding Munroe guilty on all four counts. On April 15, 2010, the trial judge sentenced Munroe to twelve months imprisonment and three years probation, as well as making a free-standing $12,964 restitution order and requiring 150 hours of community service. The trial judge also made a free-standing order banning the ownership of animals for twenty-five years, pursuant to s. 447.1.

4Munroe appeals from both conviction and sentence. The conviction appeal alleges that one error was made in O’Donnell J.’s careful and thorough reasons. This ground of appeal has no merit and can be quickly dismissed. The real issue in relation to the conviction appeal is the admissibility of a large body of fresh evidence, tendered by the Appellant pursuant to ss. 683(1) and 822(1). The Crown has tendered an equally large body of responding fresh evidence, while submitting that Munroe’s fresh evidence is not admissible.

5The appeal was heard on June 14, 2012 and I reserved judgment.

B. FACTS

(i) The facts that were not in dispute

6The evidence adduced at trial was relatively short and simple, focusing mainly on the issue of whether Munroe had exclusive opportunity to injure the two dogs. Defence counsel conceded that the two dogs had been physically abused and injured by someone. As he put it in his closing submissions:

There is simply no issue … that the two dogs … were physically abused. The sole issue … is whether the Crown has proven beyond a reasonable doubt that it is the defendant … who was the one that abused the dogs.

7The history of the relationship between Munroe and Ms. Cappella was also not in dispute. They testified that Munroe separated from his wife in October 2007 and that he then met Ms. Cappella and began dating her in November 2007. They both agreed that the relationship was happy and romantic in this early period. On April 14 or 19, 2008, Munroe moved into Ms. Cappella’s home in Toronto and the relationship began to deteriorate. Ms. Cappella’s sister lived in the house for the first three weeks but then she moved out. The sister had a job that involved shift work. After the sister moved out, Ms. Cappella and Munroe lived alone in the house.

8Ms. Cappella had three Boston Terrier dogs who were all in excellent health when Munroe moved in. They were small dogs, weighing under twenty pounds. There was an older male named Mr. Big. There was no evidence that he was ever abused in any way. The two females, Abby and Zoe, were age six and four. Abby was the smallest of the three dogs, weighing about ten pounds.

9Ms. Cappella and Munroe agreed that their respective work schedules meant that Munroe was alone with the dogs for a period of time during each working day. She worked from 8:30 a.m. to 4:30 p.m. at a government job in Toronto. He worked either the day shift or the afternoon shift at the Honda plant in Alliston. The day shift was from 6:30 a.m. until 3:00 p.m. As a result, Munroe would arrive home before Ms. Cappella during a week when he was on the day shift. The afternoon shift was from 4:30 p.m. until 1:00 a.m. As a result, Munroe would leave for work after Ms. Cappella had left for work during a week when he was on the afternoon shift.

10Ms. Cappella’s sister moved out of the house on May 10, 2008. Munroe and Ms. Cappella left for a week long holiday in Mexico that same day. Ms. Cappella’s parents lived near her house and they looked after the three dogs during the Mexico holiday. On May 17, 2008, Munroe and Ms. Cappella returned home from the Mexico holiday. It was after this holiday that Ms. Cappella noticed a change in Munroe’s behaviour and the relationship began to deteriorate. He was no longer affectionate or accommodating and he seemed to intentionally try to annoy her. It was a significant change from the earlier period in their relationship. Munroe agreed that the relationship deteriorated after he moved in to Ms. Cappella’s house. He attributed this change to the fact that he was spending weekends in Kitchener, visiting with his daughter from his prior marriage. Ms. Cappella agreed that this was a point of contention in the relationship.

(ii) The chronology of the injuries to the two dogs

11The chronological history of Abby and Zoe’s injuries was not seriously disputed and much of it was confirmed by the veterinary records. It was also agreed that Ms. Cappella was always the one who discovered the injuries to the dogs and who then took the dogs to see a veterinarian. Munroe testified that he never noticed any of the injuries until after Ms. Cappella had discovered them and had shown them to him.

12The history of the injuries, and the actions taken by Ms. Cappella and the veterinarians, were as follows:

• On May 21, 2008, which was a Wednesday, Munroe was working the afternoon shift so he would have left for work in the afternoon. When Ms. Cappella returned home from work, Abby did not come to the door to greet her. This was unusual. Abby was lethargic and limp and would not get up off the couch. Ms. Cappella knew something was wrong and she saw that Abby’s eye was clouded with blood. She took Abby to the Willowdale Animal Hospital. Dr. Krebs’ report confirmed that Abby had uveitis (inflammation) of the right eye and was subdued and painful. Blood samples were taken and Abby was then sent home with Ms. Cappella. When Munroe was told of Abby’s injury he advised Ms. Cappella that he had found a plant knocked over in the living room and he suggested that it may have hit Abby. He testified that he did not see any injury to Abby, from the potted plant or otherwise, prior to leaving for work that day. He agreed that Abby’s eye, once he saw it, was “visibly full of blood”;

• On May 22, 2008, Munroe was again working the afternoon shift. When Ms. Cappella returned home after work, she received a call from Dr. Krebs who had now received the results of Abby’s blood tests. Dr. Krebs’ report described the test results as “severe changes” and “abnormal blood values … more compatible with severe trauma (i.e. hit by car).” On Dr. Krebs’ advice, Ms. Cappella again took Abby to the Willowdale Animal Hospital. Dr. Krebs examined Abby again and found “abrasions on her left foreleg, groin and chin that were not apparent the day before”, according to her report. Abby was kept overnight at the clinic for observation. Dr. Krebs’ subsequent report, which is dated August 30, 2008, concluded with the benefit of hindsight that “trauma at the hands of a person (i.e. a severe kick), completely explains the abnormal blood tests, eye injury, and abrasions”. However, at the time of the May 22, 2008 examination of Abby, “there was no history of major trauma”;

• On May 23, 2008, Dr. Krebs advised that Abby should be transferred to the Veterinary Emergency Clinic in downtown Toronto. Ms. Cappella took the morning off work and transported Abby between the two clinics in order to have Abby examined by Dr. Mason, a specialist in internal medicine. Abby was kept at the Emergency Clinic over the weekend, for three nights. Ms. Cappella visited Abby at the clinic, over the weekend, while Munroe was away in Kitchener. Abby was lethargic and sleeping. Dr. Mason’s report noted the injury to Abby’s right eye, the elevated blood tests, as well as “bruising noted along medial surface of all four limbs, bruising on chin and under tongue, small laceration on left forepaw”. The report stated that “the bruising that was noted gradually resolved but some scabs did develop in these areas. This is unusual for toxoplasmosis and leaves [us] with a possibility of trauma alone”;

• On May 26, 2008, which was a Monday, Abby returned home from the clinic. Munroe was working the day shift during this week. He attended at the clinic with Ms. Cappella to pick up Abby but he was initially reluctant to go in the clinic and suggested that he would wait in the car. Ms. Cappella insisted that he come in with her, to get Abby, and he did. Abby seemed more alert when they picked her up but she was still not well;

• On May 27 and 28, 2008, Ms. Cappella noticed further injuries to Abby. Her anus was swollen and it had scabs on it, there was bruising on her stomach and chest, and there were scabs along the edge of her ear;

• On May 29, 2008, which was a Thursday, Ms. Cappella noticed small open wounds on the pads of Abby’s rear paws;

• On May 31, 2008, which was a Saturday, Munroe again went to Kitchener to visit his daughter. That evening, Ms. Cappella noticed that Zoe had scabs on her anus. This was the first injury to Zoe that Ms. Cappella had noticed. On Sunday, June 1, 2008, Munroe returned to Ms. Cappella’s house in Toronto;

• On Monday, June 2, 2008, Munroe was working the day shift so he would have returned home from work before Ms. Cappella. When she got home from work she noticed a large open wound on Zoe’s stomach. It was approximately four centimeters long and two centimeters wide. Munroe testified that he had not noticed it but he agreed that Ms. Cappella showed it to him and that it was “big”. Ms. Cappella phoned Dr. Mason and she thoroughly searched the house and the backyard, without success, to try to find anything that could have caused the injuries to both dogs;

• On the next day, June 3, 2008, Ms. Cappella took the two dogs to the Emergency Clinic to examine their latest injuries. Abby stayed overnight at the clinic and Zoe came back home with Ms. Cappella. Dr. Martin’s report stated that Abby had “ severe ulceration of her anus, vulva, and metatarsal toe pad of the right pelvic limb” and “a small crusted lesion on her left distal forelimb” as well as small lesions on her right eye and “crusted lesions on pinnae” (the external part of the ear). The report also noted that “the other Boston Terrier … was also showing signs of ulceration around her anus and her ventral abdomen”. The report concluded that Abby’s injuries “continue to be enigmatic in origin” and that some unknown “environmental substance” was suspected. Dr. Martin bandaged Abby’s right rear limb;

• On June 4, 2008, which was a Wednesday, Ms. Cappella picked up Abby from the clinic after work and brought her home. After Abby’s return, Munroe would change the bandage on her foot and would apply medication to it;

• The following week, which began on Monday, June 9, 2008, was the last week of Abby’s life. Munroe was working the afternoon shift and so he would leave for work after Ms. Cappella had left the house. During this week, Ms. Cappella noticed swelling on Abby’s body and could feel lumps on her side and on her leg, when stroking her. Abby was lethargic and would lie outside in the yard, at the farthest point from the house, and would not come back in. Ms. Cappella would have to pick her up and bring her back in;

• On Wednesday, June 11, 2008, Ms. Cappella again took time off work and took Abby to an eye specialist. Dr. Wolfer’s report concluded that there was “bilateral uveitis” (inflammation) and he suspected “left retinal detachment”. He recommended further testing, including but not limited to, “infectious or immune mediated causes of uveitis”;

• On Thursday, June 12, 2008, Ms. Cappella noticed that Zoe had a large swollen area on her ribcage. That night, in the early hours of the morning when Munroe came home from work, Ms. Cappella awoke as she heard Zoe squealing in the next room. She got up and found Munroe handling Zoe, who was trying to get away. This incident will be described in greater detail below;

• On Friday, June 13, 2008, Abby died. Ms. Cappella was at work during the day. Munroe was at home until the early afternoon when he left for work. Around 1:30 p.m., Ms. Cappella came out of a meeting at work and checked her voicemail. There were a number of “panicked” calls from Munroe, asking her to call him. She returned his calls but he did not answer. She was worried and kept calling and after several minutes Munroe picked up the phone and told her that Abby “was in really bad shape, that her breathing was changed”. He did not know what to do and he had already left for work. He asked Ms. Cappella whether he should go back to the house and take Abby to the veterinarian. Ms. Cappella advised that she would call her parents and ask them to check on Abby. Ms. Cappella phoned her parents and they went over to the house. They found Abby dead, lying on the armchair in the living room.

[... The remainder of the judgment continues exactly as in the original decision, including sections on evidence of Munroe’s conduct, the conviction appeal, the Palmer fresh evidence analysis, the sentencing appeal, and the final disposition.]

M.A. Code J.