ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. Vantroba, 2015 ONSC 1569

COURT FILE NO.: CR-13-0058

DATE: 2015-03-13

B E T W E E N:

Her Majesty The Queen,

Deborah Kinsella, for the Crown

• and -

Frank Vantroba,

Michael A. Hargadon, for the Accused

Accused

HEARD: October 14, 15 and 16 and December 16, 2014,

at Thunder Bay, Ontario

Regional Senior Justice D. C. Shaw

Reasons For Judgment

[1] The accused, Frank Vantroba, is charged with criminal negligence causing bodily harm, contrary to s. 221 of the Criminal Code, and unlawfully causing bodily harm, contrary to s. 269 of the Criminal Code, by permitting or allowing his dog to run at large and by failing to take reasonable precautions to prevent his dog from biting Dante Mekanak. The charges relate to an incident on November 17, 2012, at Tarbutt Park in Thunder Bay.

Background

[2] At the time of the incident, Mr. Vantroba was 59 years of age. Mr. Vantroba immigrated to Canada in 1983 from Czechoslovakia. He testified at trial through a Slovak interpreter.

[3] In January 2009, Mr. Vantroba moved in with his son to help care for his son’s children. At that time, his son owned a nine week old puppy. The dog was a purebred Old English Bulldog, purchased from a breeder in Thunder Bay. Mr. Vantroba said that he was with the dog 24 hours a day and that he was the one who trained the dog. The dog, which was named “Big Brown”, grew to be a large, muscular animal, weighing approximately 100 lbs. and standing approximately 90 cm. high.

[4] About a year before the incident in question, Mr. Vantroba bought his own house, about three doors down from his son, very near the southwest corner of Tarbutt Park. He brought Big Brown with him. Mr. Vantroba purchased a female dog to breed with Big Brown. She gave birth to a litter of six puppies, four of which Mr. Vantroba sold. He kept the remaining two puppies.

[5] Mr. Vantroba said that his family, in what is now Slovakia, was involved in training police dogs for 36 years. He said that he trained his first dog when he was 15 years of age. Over his life, he himself has owned over 10 dogs, most of them German Shepherds, trained like police dogs. He testified that Big Brown, however, was not trained as a police dog but rather was a regular dog, living in a regular family. He was trained to obey the basic commands like sit, stay, lie down, cover his face and roll over. He was never trained to bite or attack humans or other animals. Because Mr. Vantroba was not familiar with Old English Bulldogs, he met with the breeder to learn as much as he could about the breed. Mr. Vantroba owned several dozen books on the subject of training dogs. He described Big Brown as highly intelligent and that he had no difficulty training the dog.

[6] Mr. Vantroba testified that the dog was never known to be aggressive to other animals or to growl, bark or jump at people. He said that when he was with the dog, the dog was fully under his control and was obedient.

[7] Mr. Vantroba testified about two incidents during which Big Brown was permitted to run free and did not respond to commands. Once, along the Kaministiquia River, the dog came across three homeless people sleeping by the river. Mr. Vantroba called the dog back, but he would not come. He just stood there. He did not growl or bark at those people. On another occasion, the dog found a skunk and stayed by it until Mr. Vantroba approached to investigate.

[8] Mr. Vantroba testified that before he moved into his own home with the dog, his son kept Big Brown in a kennel adjacent to the back lane. From time to time, children passing by threw rocks at the kennel and kicked the backyard fence, which got the dog agitated and upset. Mr. Vantroba testified that was the only time he heard the dog bark. When Mr. Vantroba moved to his own house, Big Brown and the female resided in the house while the puppies remained outside in a kennel.

[9] Mr. Vantroba said that on one occasion when he was walking Big Brown, in the middle of the night, they suddenly came upon Mr. Vantroba’s neighbour who was walking his three dogs. Mr. Vantroba had to pull on the leash and say “stop” in a loud voice to control Big Brown.

[10] Mr. Vantroba acknowledged in cross-examination that no matter how good a trainer or how smart a dog might be, dogs remained unpredictable.

[11] Mr. Vantroba said that Big Brown was obedient in responding to both verbal and leash commands. He said that the dog would remain within a certain distance of him, whether on or off leash, and was able to run free only upon a specific verbal command. If running free, Mr. Vantroba could command what direction the dog could move. The dog was trained to return to Mr. Vantroba, sit by his side and stop when commanded.

[12] Mr. Vantroba said that he would often take Big Brown to Tarbutt Park. If there were children in the park, he would take the dog to a different part of the park. He said he did not want children playing with the dog while he was walking him.

[13] In November 2012, Mr. Vantroba’s grandchildren were ages nine and three. The dog played with the children, without supervision. He said there were no issues with his grandchildren or with other children who came over to his son’s home while the dog was there.

[14] In November 2012, the City put up boards for a seasonal hockey rink at Tarbutt Park. As of November 17, 2012, the ice had not been put in. There was a gate at the south west corner of the rink through which one could enter the rink. The park itself was enclosed on the north, south and east sides by a chain link fence. There was fencing on a small portion of the west side of the park, south of the rink. In the southwest corner of the park, there was a playground structure.

[15] Christopher Johnson, who was employed as a City of Thunder Bay Animal Services Officer, testified. The City of Thunder Bay has a by-law which provides that dogs in parks, other than in designated off-leash parks, must be on a leash no more than 3.66 metres long. Tarbutt Park was not an off-leash park.

[16] Mr. Johnson testified that the City has a computerized system in which every animal complaint received by the City would be entered. There was no complaint history regarding Big Brown among the thousands of complaints received yearly by the City. Of those thousands of complaints, one of the more common was about off-leash dogs.

[17] On the afternoon of November 17, 2012, Mr. Vantroba took Big Brown, together with the female dog and the two puppies, to Tarbutt Park. Mr. Vantroba brought the dogs to the rink for training every day, after the boards went up. The two adult dogs were leashed, the puppies were not. Mr. Vantroba brought sausages with him in his pocket for training purposes and to encourage the dogs to stay near him. He entered the rink at the gate, unleashed the adult dogs and then closed the gate. There were no other persons inside the rink and he saw no one else in the park.

[18] Mr. Vantroba intended that the dogs would remain by his side. They had to do so to get the sausage. As he was concentrating on the puppies in the middle of the rink, he heard the sound of Big Brown, running. He turned and saw the dog running toward Dante Mekanak who was at the east end of the rink, running from one side of the rink to the other side. Mr. Vantroba yelled at the dog to stop.

[19] Dante, who was 11 years of age, and his friend, Rodney Green, had come to the park from Kingsway School where they had been looking for friends whom they did not find. As they approached the rink at the east end of the boards, they saw two other children entering the park from the southwest corner. They began running towards those individuals, racing each other. Rodney went around the boards while Dante jumped over the boards at the northeast corner of the rink. Dante testified that before he jumped over the rink boards, he noticed a man was inside the boards. He thought the man was alone. However, after jumping the boards, he noticed that puppies were with the man. He said that when he had run nearly the entire width of the rink, he saw a large dog to his right. He first took notice of the dog when he heard footsteps and loud breathing.

[20] Dante said that the dog’s chest brushed up against his arm. He heard a shout which caused him to pause. When he turned to face the dog, the dog jumped up on him and bit his face. Dante froze because he did not know what to do. He said he felt a great deal of pain. He leaned up against the boards. The man, Mr. Vantroba, came up to him, grabbed the dog and put it on a leash. He testified that Mr. Vantroba said to him “You can’t just jump over the boards like that.” Dante said he was sorry. He had put his sleeve over his face right after the dog bit him because he knew he was going to be bleeding. He spoke to Mr. Vantroba with his sleeve over his face.

[21] Mr. Vantroba testified that when he yelled “stop”, the dog stopped immediately, but the dog’s momentum brought him within five feet of Dante. Mr. Vantroba testified that as he ran towards the dog, he saw it move up and down once. He estimated he was about 25 feet away when this occurred. He leashed the dog immediately on arriving at its position.

[22] Mr. Vantroba said that he asked Dante why he jumped over the boards and Dante apologized. He said Dante had his hands over his mouth. Mr. Vantroba testified that he saw no sign of injury or blood other than a slight scratch over Dante’s right eye, which he thought may have been caused by Big Brown’s paw.

[23] The interaction between Mr. Vantroba and Dante was brief. Mr. Vantroba said he looked at Dante’s pupils because that is what one does in sports to determine if there is an injury. He said Dante never took his hands away from his face.

[24] Dante then jumped over the boards outside the rink and joined up with Rodney and started to go to Dante’s home.

[25] Mr. Vantroba returned with the dogs to his own home. He agreed that it would have been easy to give Dante his address. Mr. Vantroba said that he first learned of the seriousness of Dante’s injuries when he was met at home the next day by the police. He said he was unaware of what had happened to Dante because he did not have a radio, television, telephone or newspaper subscription.

[26] Dante, in fact, had been badly injured. When he showed his injuries to Rodney shortly after the bite, Rodney said that he saw that Dante’s lip was hanging off his face and that there was blood on the sleeves of Dante’s sweater that Dante held to his face.

[27] Dante and Rodney were joined by Rodney’s cousin, Katelyn, who also had been at the park, as they went to Dante’s home. An adult, Ronald Frost, who lived on the street along which the three children were walking, saw the children and saw that Dante was holding some clothing to his face. Concerned that Dante had been beaten up, he went over to the children. He saw that Dante had been injured. It appeared to him that Dante was in shock, that part of the skin of his face had fallen down and there was a lot of blood. Mr. Frost called 911 from his cellphone and walked with the children to the driveway of Dante’s home. Mr. Frost knocked on the door until Dante’s mother came. The police and an ambulance responded to the 911 call. Dante was taken to hospital where his wounds were sutured.

[28] Dante’s mother advised Constable Elvish that she recalled seeing dogs at a residence up the street that matched the dogs involved in the incident.

[29] Constable Elvish and Mr. Johnson attended at Mr. Vantroba’s home the following day. Mr. Vantroba stated that he had been at Tarbutt Park the day before, inside the rink with his four dogs. Mr. Vantroba said he yelled “stop”, ran over to the boy and leashed his dog. The boy apologized when Mr. Vantroba asked him why he had jumped over the fence. Mr. Vantroba told Constable Elvish that the boy was covering his mouth with his hand as he spoke. Mr. Vantroba said that he did not observe any injuries.

[30] Constable Elvish said that Mr. Vantroba was very polite and fully co-operative. Mr. Vantroba expressed surprise when Constable Elvish told him that Dante had been injured. Constable Elvish arrested Mr. Vantroba for criminal negligence causing bodily harm for not offering assistance to Dante.

[31] Mr. Johnson also questioned Mr. Vantroba. Mr. Johnson testified that Mr. Vantroba was polite and completely forthcoming. Mr. Vantroba told Mr. Johnson basically the same thing as he had told Constable Elvish.

[32] On November 20, 2012, Mr. Johnson issued a restraint order under a City By-law which required Big Brown to be muzzled, leashed and under the care of someone over 16 when the dog was in a public place.

[33] On November 21, 2012, Mr. Johnson took photographs of Mr. Vantroba’s dogs. He said that while taking pictures of Big Brown, the dog was pulling on the leash being held by Mr. Vantroba. The dog did not want to stand still for the photograph. He said Mr. Vantroba was having a little bit of difficulty controlling the dog, but that the dog was not being aggressive, just moving around a bit.

[34] Mr. Vantroba was charged under the Dog Owner’s Liability Act. Mr. Vantroba asked what might happen to Big Brown in light of that charge. Mr. Johnson told him that given the circumstances and the seriousness of the injuries, the dog would likely be destroyed. In October 2013, Mr. Vantroba voluntarily surrendered Big Brown to Animal Services. The dog was euthanized.

[35] In cross-examination, Mr. Vantroba agreed with the Crown’s suggestion that dogs are pack animals and that Big Brown was an alpha male within the pack whose role would be a protector. Mr. Vantroba also said that when Big Brown was with him, Mr. Vantroba was the alpha male.

Submissions

(a) Crown

[36] The Crown submits that it has proved both the actus reus and the mens rea for criminal negligence causing bodily harm in that Mr. Vantroba’s actions showed a wanton or reckless disregard for the safety of others and amounted to a marked and substantial departure from the norm. The Crown submits that these actions consisted of:

• taking a dog that Mr. Vantroba either knew or reasonably ought to have known had issues with strange children and did not always follow commands;

• knowing that Big Brown was an alpha male protective of other animals in the pack;

• knowing that Big Brown was a large dog, capable of causing significant bodily harm;

• taking the dog to a children’s park on a Saturday afternoon where strange children could reasonably be expected to be present;

• not using a leash; and

• bringing three other dogs that Mr. Vantroba also needed to control.

[37] The Crown further submits that Mr. Vantroba was guilty of unlawfully causing bodily harm. Under the Dog Owner’s Liability Act, Mr. Vantroba had an obligation to control his dog and to take reasonable precautions to prevent him from biting persons. The Crown submits that breach of this Act formed the unlawful act required for the offence.

[38] The Crown is critical of Mr. Vantroba’s credibility. The Crown submits that Mr. Vantroba frequently failed to answer direct questions both in-chief and in cross-examination and that he attempted to portray himself in the most positive light, for example saying that Big Brown never disobeyed him when in fact the dog did not return when called when the dog encountered the homeless people and the skunk. The Crown notes Mr. Vantroba’s evidence that he had been intimidated by Constable Elvish and that Constable Elvish had lied to him about the extent of the injuries to Dante. The Crown submits that this evidence was contradicted by Constable Elvish and Mr. Johnson. The Crown also notes that Mr. Vantroba described the injury that Dante suffered over his eyebrow as a “scratch”, whereas the photograph of the injury shows an injury that is more than a scratch.

(b) Defence

[39] The defence submits that the Crown has failed to prove the actus reus and mens rea required for both offences.

[40] The defence acknowledges that Dante suffered bodily harm.

[41] With respect to the charge of criminal negligence, the defence submits that the Crown has failed to establish that Mr. Vantroba allowed his dog to “run at large” or that he “failed to take reasonable precautions” to prevent his dog from biting Dante. The defence submits that even if the Crown has established those elements of the offence, it has failed to prove that Mr. Vantroba showed such wanton and reckless disregard for life or safety that the conduct represented a marked and substantial departure from the standard of care of a reasonable person.

[42] The defence submits that the consequences of an alleged act or omission should not be confused with proof of the actus reus itself.

[43] The defence submits that there is no evidence of specific intent on the part of Mr. Vantroba, that he deliberately created a danger. The defence submits that the Crown also has not established that Mr. Vantroba’s conduct at the park fell so far below the expected standard that he should be found criminally liable.

[44] With respect to the charge of unlawfully causing bodily harm, the defence submits that the Crown has failed to prove that infliction of bodily harm, as the result of Mr. Vantroba’s actions, was reasonably foreseeable. The defence submits that there was nothing to suggest that Big Brown was aggressive or that he had a tendency to attack persons and animals or that he would react the way he did at the park. The defence emphasizes that Mr. Vantroba has established due diligence through the uncontradicted evidence of his knowledge and training of Big Brown, and his evidence that the dog was intelligent and obeyed his commands.

Discussion

(a) Criminal Negligence

[45] Criminal negligence is defined by s. 219(1) of the Criminal Code:

s. 219(1) Everyone is criminally negligent, who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons.

[46] The test for criminal negligence set out in s. 219(1) of the Criminal Code requires the Crown to prove beyond a reasonable doubt that an accused’s conduct or omission constituted a “marked and substantial departure from the conduct of a reasonably prudent person in the circumstances”: See R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215, at para. 9.

[47] This is a high standard of culpability. It is more than carelessness. It is more than civil negligence. In the context of the operation of a motor vehicle, it is beyond criminal conduct that would constitute dangerous driving, which requires that a vehicle be driven “ìn a manner that is dangerous to the public, having regard to all the circumstances”. Criminal negligence requires not only a marked departure from the norm but also a substantial departure from the norm. This is consistent with the higher level of blameworthiness associated with the offence, namely wanton or reckless disregard for the lives or safety of others: See R. v. J.L., 2006 805 (Ont. C.A.) at para. 16.

[48] “The higher standard of a marked and substantial departure from the conduct of a reasonably prudent person applies to both the physical and mental elements of the offence:” See J.L., supra.

[49] I deal, firstly, with the actus reus. One must consider all the circumstances leading up to the injury to determine whether the Crown has proved the actus reus of the offence and determine whether there was not just a marked, but a marked and substantial departure from what a reasonably prudent person would have done in those circumstances.

[50] The Crown concedes that the mere act of taking a dog off leash, even when prohibited by a municipal by-law, does not amount to a marked and substantial departure from the norm. However, the Crown submits that the act of taking a dog off leash must be considered in context. I have set out under the Crown’s submissions what it says is the relevant context that proves the actus reus.

[51] I have determined that the Crown has not established, beyond a reasonable doubt, the actus reus of the offence of criminal negligence.

[52] There is no question that Dante was seriously injured by Mr. Vantroba’s dog. I also have concerns about Mr. Vantroba’s conduct after he realized that Big Brown had injured Dante. Although I accept that Mr. Vantroba was not aware of the extent of Dante’s injuries because Dante kept his face covered, it is difficult, on viewing the photographs of Dante taken at the hospital, to accept that the laceration over Dante’s right eyebrow could be fairly described as a “scratch”. Even if Mr. Vantroba did truly regard that injury as a “scratch”, the responsible thing for him to do, as the only adult present, and as the owner of the dog that had jumped on Dante, would have been to offer to assist this 11 year of boy, who visibly had been hurt and who was shielding his face. Mr. Vantroba should have followed up on the incident. Mr. Vantroba’s failure to act appropriately is deserving of criticism. It is important, however, not to conflate the post-incident conduct of Mr. Vantroba and the serious nature of Dante’s injuries with proof of the actus reus of the offence. The conduct of Mr. Vantroba after the incident and the seriousness of Dante’s injuries do not bear on the answer to the essential question of whether Mr. Vantroba’s conduct leading up to the incident amounted to a marked and substantial departure from the norm.

[53] In R. v. Beatty, 2008 SCC 5, 2008 S.C.C. 5, the Supreme Court of Canada dealt with a charge of dangerous driving. The accused’s vehicle suddenly crossed the solid centre line of the highway into the path of an oncoming vehicle. At para. 46, the Supreme Court of Canada stated:

46 As the words of the provision make plain, it is the manner in which the motor vehicle was operated that is at issue, not the consequence of the driving. The consequence, as here where death was caused, may make the offence a more serious one under s, 249(4), but it has no bearing on the question whether the offence of dangerous operation of a motor vehicle has been made out or not. Again, this is also an important distinction. If the focus is improperly placed on the consequence, it almost begs the question to then ask whether an act that killed someone was dangerous. The court must not leap to its conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into the manner of driving. The consequence, of course, may assist in assessing the risk involved, but it does not answer the question whether or not the vehicle was operated in a manner dangerous to the public. This Court explained this distinction in R. v. Anderson, 1990 128 (SCC), [1990] 1 S.C.R. 265, as follows:

In the circumstances of this case, the unfortunate fact that a person was killed added nothing to the conduct of the appellant. The degree of negligence proved against the appellant by means of the evidence that he drove after drinking and went through a red light was not increased by the fact that a collision occurred and death resulted. If driving and drinking and running a red light was not a marked departure from the standard, it did not become so because a collision occurred. In some circumstances, perhaps, the actions of the accused and the consequences flowing from them may be so interwoven that the consequences may be relevant in characterizing the conduct of the accused. That is not the case here. [Emphasis added; p. 273.]

[54] It is important to be mindful that the question to be asked is not whether Mr. Vantroba’s conduct leading up to the injuries suffered by Dante departed from the conduct to be expected of a reasonably prudent person in the circumstances. Rather the question is, whether Mr. Vantroba’s conduct constituted a marked and substantial departure from the conduct of a reasonably prudent person in the circumstances.

[55] There was no evidence leading up to the incident that Big Brown had been aggressive towards people or adults. The computerized system maintained by the Animal Services Department of the City of Thunder Bay records every complaint received by the City about an animal. In the approximately four years of Big Brown’s life leading up to the incident, there had been no complaint received about his behaviour. No witnesses were called by the Crown to testify that there had been any prior problems with the dog. The most that could be said by any Crown witness about Big Brown’s behaviour, apart from the incident in question, was the evidence of Mr. Johnson that when he went to Mr. Vantroba’s home to photograph Mr. Vantroba’s dogs, he observed that Big Brown pulled on his leash when he was being photographed and that the dog did not want to stand still for the photograph. However, Mr. Johnson, who said that he had a lot of experience with aggressive, uncontrolled dogs, also testified that while being photographed, Big Brown was not aggressive but was just moving around a bit.

[56] The Crown emphasized that Big Brown did not have a perfect track record of following commands, based on incidents related by Mr. Vantroba where the dog, while off leash, did not return to him after finding three homeless persons near the Kaministiquia River, and that on another occasion he did not return to Mr. Vantroba’s side after finding a skunk. The Crown also notes that Big Brown had barked at children who were throwing rocks at his kennel and kicking the fence when the dog was living at the home of Mr. Vantroba’s son. The Crown refers to the evidence that Mr. Vantroba had to pull on Big Brown’s leash and call out “stop” when they suddenly came across Mr. Vantroba’s neighbour and his three dogs in the middle of the night.

[57] In my view, none of these events indicate that the dog had a propensity for aggressive behaviour. The dog stood quietly by the homeless people and the skunk. Also, in my view, no adverse conclusions can be drawn about the dog’s behaviour because he barked when rocks were thrown at his kennel or when the fence by his kennel was kicked or because he strained at his leash when he unexpectedly came upon dogs in the dark. None of these reactions appear to be abnormal.

[58] A search of the caselaw, where there has been a finding of criminal negligence involving dogs, consistently reveals evidence of aggressive behaviour leading up to the offences. Evidence of that type of aggressive behaviour is not present at all in the instant case. I summarize those cases:

• R. v. Zeitner, 1991 CarswellBC 1712 (B.C.C.A.): On two prior occasions, about a month before the incident, a Rotweiler had escaped from the home and injured passers-by. In addition to knowing of these incidents, the owner knew when he got the dog from the pound that the dog had been cruelly treated, which the owner said he took as a challenge.

• R. v. McEchen, [1988] B.C.J. No. 1235: Two pit bulls were known to their owners to be very aggressive towards other people and animals. The owners had placed warning signs about their premises.

• R. v. Hough, [1987] B.C.J. No. 2860: The dog in question regularly escaped from its pen, notwithstanding efforts to make the enclosure more secure. The owner knew that the dog had a propensity for attacking people.

• R. v. Gallagher, [1985] B.C.J. No. 346: There was evidence that the dogs were vicious to others. One of the dogs had previously bit a person parked beside a truck that the dog was in. At a veterinarian’s office, the owner told the vet to stay away from his dog because it could not be trusted. The dog lunged at the vet. When the dogs were loose in a neighbour’s yard, they pursued the neighbour back into his house when he went to chase them away.

• R. v. Mayerhofer, [1983] B.C.J. No. 923: Two days prior to a vicious attack by two Rotweilers, the dogs charged out of their kennel and attacked a dog of a neighbour who was walking it, wounding it on both sides of its neck. The dogs had a history of running loose. The dogs had been seen to engage in bizarre, abnormal behaviour, barking, howling, snorting, jumping up and throwing themselves against the wire mesh of the kennel. The owner had spoken to various people about his dogs being “mean bastards”, that his dog had bitten him, requiring stitches, and that his dog had escaped and killed a cow in the previous year.

[59] Mr. Vantroba’s evidence about his extensive training of Big Brown, beginning when the dog was nine weeks old, was uncontroverted. Although Mr. Vantroba had experience training dogs for police work, he said that Big Brown was not trained as a police dog but rather as a pet – to sit, to stay, to roll over, to remain by Mr. Vantroba’s side. Mr. Vantroba had a long standing interest in training dogs. He had a library of several dozen books on dog training. He sought out the breeder of Big Brown to better understand the nature of an Old English Bulldog.

[60] Mr. Vantroba’s young grandchildren and their friends interacted with the dog, apparently without incident.

[61] On November 17, 2012, Mr. Vantroba walked from his home to the rink, with Big Brown and the female dog on leash. Mr. Vantroba entered the rink through the latched gate and closed it behind him. The dogs were only taken off leash once they were within the confines of the rink. This was for the purpose of training. No one else was present inside the boards. No one appeared to be at the park itself. Dante suddenly entered the rink, not through the gate by which Mr. Vantroba had entered, but by jumping over the boards. I hasten to add that, in my opinion, Dante did nothing wrong, at all, by jumping into the rink. There was no need for him to apologize to Mr. Vantroba for doing so. However, it is fair to say that his entry into the rink in this fashion would not have reasonably been expected in the circumstances.

[62] In its submissions on the issue of the actus reus, the Crown referred to its cross-examination of Mr. Vantroba where the Crown and Mr. Vantroba engaged in a series of questions and answers relating to Big Brown as an “alpha” dog and the female dog and the puppies as a “pack”. The Crown emphasized that it was a significant part of the proof of the offence that Mr. Vantroba took a large alpha male dog off leash in a situation where that dog could reasonably be expected to go into protection mode for his pack, particularly for vulnerable puppies and, more particularly, when that dog had been trained using techniques for the purposes of protection.

[63] I do not accept these submissions. There was no expert evidence called regarding the behaviour of “alpha” dogs and “packs” and the applicability of those concepts to this incident. Even if I accept that these terms are applicable in the absence of expert evidence, Mr. Vantroba stated that when Big Brown was in his company he, that is, Mr. Vantroba, was the alpha male and the dog was obedient. Mr. Vantroba also categorically denied that Big Brown received training for protection and law enforcement. That type of training, he testified, was beyond the basic training that Big Brown received. There was no evidence to contradict Mr. Vantroba’s testimony about the training received by Big Brown.

[64] I am unable to find beyond a reasonable doubt, in all the circumstances of this case, that by taking Big Brown off leash inside the rink Mr. Vantroba showed a wanton or reckless disregard for the lives or safety of other persons such that his conduct represented a marked and substantial departure from the standard of care of a reasonably prudent person. His conduct did not rise to the highly blameworthy standard required of criminal negligence.

[65] Turning to the mens rea of the offence, the high standard of “marked and substantial departure” from the conduct of a reasonably prudent person applies to not just the physical element of the offence but also to the mental element. The mens rea necessary for a finding of criminal negligence is discussed in R. v. M.R., 2011 ONCA 190, at para. 30:

The mental element of criminal negligence is described as a modified objective test: R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867, at p. 887, Cory J.; R. v. Tutton, [1989] 1.S.C.R. 1392, at p. 1413, McIntyre J. A court must consider the facts existing at the time in light of the accused’s perception of those facts and assess whether the accused’s conduct, in view of his or her perception of the facts, constituted a marked and substantial departure from what would be reasonable in the circumstances: see R. v. Tutton, at p. 1432. In considering this issue, the court should consider whether the accused either adverted to the risk involved and disregarded it, or failed to direct his or her mind to the risk and the need to take care at all. In most cases, the mental element can be inferred from the accused’s conduct or omission: see R. v. Creighton, [1993] 3.S.C.R. 3, at pp. 73-74, McLachlin J. (as she then was); R. v. Hundal, at p. 872, McLachlin J., concurring; R. v. Tutton, at p. 1432, McIntyre J.

[66] The Crown makes the following submissions to establish Mr. Vantroba’s mens rea:

• his knowledge of the size of the dog, including that the dog was large for his breed;

• his knowledge of the dog’s tendency to be an alpha male, needing to protect its pack;

• his knowledge that the dog barked when stones were thrown at its kennel and the adjacent fence was kicked;

• his knowledge that the dog did not respond to his commands when it found the homeless people and the skunk;

• his evidence that he kept the dog away from strange children when he was at the park;

• the fact that he raised his voice when he saw the dog run towards Dante from which, it is submitted, it can be inferred he knew the dog posed a risk to the child; and

• evidence that he ran over to Dante after the dog responded to his command to stop, from which the Crown says it can be inferred that he had some idea that the dog posed a risk to the child.

[67] I have previously discussed the issues of an “alpha” male and “packs”, the barking when the dog’s kennel was assaulted by rocks, and the dog remaining by the homeless people and the skunk.

[68] The fact that on prior occasions when training the dog off leash, Mr. Vantroba kept the dog away from strange children is equally consistent with Mr. Vantroba exercising reasonable caution as it is with knowledge that the dog posed a risk. In the circumstances related to this incident, Mr. Vantroba did not foresee that a child would suddenly jump over the boards and run across the rink. Such a failure to foresee did not, in my view, constitute a marked and substantial departure from what a reasonably prudent person would have foreseen. It was understandable that Mr. Vantroba called loudly to the dog when he suddenly saw it running towards Dante. It was also understandable that he ran over to Dante and the dog after the dog stopped on Mr. Vantroba’s command. Although this may have indicated that Mr. Vantroba was aware of a risk to the child because the dog had run to the child, it does not necessarily follow that, before the dog ran over to Dante, Mr. Vantroba failed to direct his mind to a risk to such a degree that the failure represented a marked and substantial departure from the norm.

[69] I again refer to Mr. Vantroba’s uncontradicted evidence about the nature and extent of his training of his dogs. There was no compelling evidence that points to the fact that Mr. Vantroba, within the context of the high standard required by the offence of criminal negligence, failed to direct his mind to the risk of the happening of the terrible, unexpected event, and failed to take care at all.

(b) Unlawfully Causing Bodily Harm

[70] In R. v. DeSousa, 1992 80 (SCC), [1992] 2 S.C.R. 944, Sopinka J., for the Supreme Court of Canada reviewed the necessary elements of a charge of unlawfully causing bodily harm under s. 269 of the Criminal Code. He stated, at paras. 19, 27 and 28:

19 To be brought within the ambit of s. 269, an accused must have committed an underlying offence (otherwise referred to as the predicate offence) and have caused bodily harm to another person as a result of committing that underlying offence. For liability to be imposed for unlawfully causing bodily harm, the harm caused must have sufficient causal connection to the underlying offence committed (see R. v. Wilmot (1940), 1940 235 (AB SCAD), 74 C.C.C. 1 (Alta. C.A.), at pp. 17 and 26-27, appeal dismissed for other reasons 1940 32 (SCC), [1941] S.C.R. 53). The requirement of an underlying “unlawful” offence includes at its most general, and subject to the restrictions discussed below, only offences prohibited by federal or provincial legislation. A similar conclusion in regard to criminal conspiracy to effect an “unlawful” purpose was reached earlier by this Court in Gralewicz, supra, at p. 509.

27 In accordance with the English law and in furtherance of the developing Canadian case law, the most principled approach to the meaning of “unlawful” in the context of s. 269 is to require that the unlawful act be at least objectively dangerous. This conclusion is both supported by the meaning given to the words “unlawful act” by virtually all of the lower courts and also is in accord with the emerging jurisprudence of this Court in regard to personal fault.

28 Objective foresight of bodily harm should be required for both criminal and non-criminal unlawful acts which underlie a s. 269 prosecution. I can see no reason why there should be a difference between the two categories of acts. There is no need to differentiate between criminal and non-criminal unlawful acts when one unifying concept is available. Thus the test is one of objective foresight of bodily harm for all underlying offences. The act must be both unlawful, as described above, and one that is likely to subject another person to danger of harm or injury. This bodily harm must be more than merely trivial or transitory in nature and will in most cases involve an act of violence done deliberately to another person. In interpreting what constitutes an objectively dangerous act, the courts should strive to avoid attaching penal sanctions to mere inadvertence. The contention that no dangerousness requirement is required if the unlawful act is criminal should be rejected. The premise on which this proposition is based is that most, if not all, criminal acts are inherently dangerous. This premise is an overstatement inasmuch as a large part of the criminal law is concerned with offences against property and other interests which are not inherently dangerous. But, even if [page962] this premise were accepted the difference between the two positions would be simply one of semantics. To maintain the correct focus it is preferable to inquire whether a reasonable person would inevitably realize that the underlying unlawful act would subject another person to the risk of bodily harm rather than getting sidetracked on a question regarding the classification of the offence.

[71] The Crown submits that the underlying unlawful offence was the breach by Mr. Vantroba of s. 5.1 of the Dog Owner’s Liability Act, R.S.O. 1990, c. D. 16, which provides:

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

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

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

[72] The key issue is whether or not Mr. Vantroba`s conduct was objectively dangerous. The Crown must prove, beyond a reasonable doubt, objective foresight of bodily harm.

[73] For proof of the offence of unlawfully causing bodily harm, the Crown relies on the same factual submissions which underpinned its position on the charge of criminal negligence and submits that a contextual analysis of all the circumstances leading up to the incident are sufficient to ground a conviction.

[74] In particular, the Crown emphasizes:

• that the dog was not on a leash;

• the location of the incident;

• the time of day;

• the number of dogs that Mr. Vantroba was trying to control off-leash;

• the nature of the training being done that day, with food;

• that Mr. Vantroba, historically, did not have perfect control of the dog; and

• the nature of Big Brown as a large, alpha male.

[75] I do not find that the Crown has proved, beyond a reasonable doubt, that Mr. Vantroba was guilty of unlawfully causing bodily harm.

[76] I have dealt in the discussion of criminal negligence with most of the points raised by the Crown in support of its submission for a conviction on unlawfully causing bodily harm.

[77] In my view, bodily harm was not objectively foreseeable when Mr. Vantroba was training his dogs inside the rink.

[78] There was no evidence leading up to the incident that Big Brown had been aggressive nor, in particular, that he had bitten someone. To the contrary, the evidence was that the dog was well trained and obedient. Even with respect to the incidents where the dog came upon homeless people and a skunk while off leash, which the Crown relies upon in support of its submission that the dog was not under perfect control, there is no suggestion that the dog was aggressive on those occasions – he did not run or snap at the people or the animal. Rather he stood calmly by as Mr. Vantroba came upon the scene.

[79] In the moments leading up to the injury to Dante the dogs were in a rink, completely enclosed by boards with, as described by Constable Elvish, the only entrance being a latched, closeable gate at the end of the rink, on a day when no one appeared to Mr. Vantroba to be present in the park outside the rink. Dante unexpectedly vaulted over the boards at the end opposite to the gate and ran across the rink.

[80] I am left with reasonable doubt that in these circumstances, what Mr. Vantroba did was objectively dangerous and that there was objective foresight of bodily harm ensuing from his conduct.

Conclusion

[81] For the reasons given, there will be a finding of not guilty on both counts of the indictment.

___”original signed by”

The Hon. Mr. Justice D. C. Shaw

Released: March 13, 2015

CITATION: R. v. Vantroba, 2015 ONSC 1569

COURT FILE NO.: CR-13-0058

DATE: 2015-03-13

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty The Queen,

and –

Frank Vantroba,

Accused

REASONS FOR JUDGMENT

Shaw R.S.J.

Released: March 13, 2015

/mls