SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CR-14-10000147-00AP

DATE: 2015-10-30

RE: HER MAJESTY THE QUEEN, Respondent

AND:

GIOVANNI DINARDO, Appellant

BEFORE: MacDonnell, J.

COUNSEL:
Dan Guttman, for the Respondent

Joel Hechter, for the Appellant

HEARD: October 20, 2015

appeal book ENDORSEMENT

[1] On September 29, 2014, the appellant appeared before the Honourable Justice M.L. Hogan in the Ontario Court of Justice in Toronto and was arraigned on an information charging that on or about the 7^th of June, 2013, he failed without lawful excuse to comply with a condition of a recognizance entered into under s. 810 of the Criminal Code, to wit: “not to allow your dogs outside or out of your garage unless there [sic] in your company or in the company of an adult”. The appellant pleaded not guilty.

[2] On October 8, 2014, the trial judge found the appellant guilty of breaching his recognizance. She imposed a suspended sentence with probation. The appellant appeals only against the finding of guilt.

[3] There was no dispute that as of June 7^th, 2013 the appellant was bound by a recognizance containing the condition set out above. There was further no dispute that on that day his two dogs were in his backyard unattended and barking for approximately an hour and a half, and that as a consequence one of his neighbours made a complaint to the police. The appellant testified in his own defence. He testified that he operates a business out of his home but that on occasion he is obliged to be absent during the day. He testified that on those occasions he would feed his dogs in the morning and then lock them in the garage. Sometimes, while he was away, one of his employees or a friend or his wife might take the dogs out of the garage for a walk, to be fed, or “for the washroom”. He had informed those persons of the terms of the recognizance and had told them “if you have to let the dogs out… make sure that the dogs are not barking and after you’re done with them put them in the back of the garage”. He said “they know the dogs are to be locked up, just to let them out for the washroom, feed them and … back in they go”.

[4] With respect to what occurred on June 7, it was not his evidence that he had arranged for or allowed another adult to let the dogs out of the garage. He testified that he could not be certain where he was at the relevant time but that he was probably at work. He testified that he had left the dogs locked up in the garage. He testified: “When no one’s around, they’re in the garage all the time”. Toward the end of the examination in-chief, the following exchange occurred:

Q. Now, on June 7^th, did you let your dogs out and leave the property?

A. No, I didn’t.

Q. Do you know who let them out?

A. No, I didn’t. No I do not.

Put simply, the appellant’s position was a denial of the actus reus of the offence charged.

[5] Rather than focusing on whether the Crown had proved the actus reus, however, the appellant’s trial counsel (not Mr. Hechter) characterized the issue to be decided as whether the Crown had proved that the appellant had not made proper arrangements for a third party to look after his dogs. Counsel seemed to think that once it was shown that the dogs were out of the garage unattended, there was a legal burden on the appellant to show that he had taken reasonable steps to prevent that from occurring. He submitted that the instructions that the appellant gave to the persons who occasionally took the dogs out satisfied that burden.

[6] Counsel’s mischaracterization of the legal effect of the appellant’s evidence had the unfortunate effect of leading the trial judge to focus not on whether the appellant had, as alleged, allowed the dogs to be out of the garage contrary to the terms of the recognizance but instead on whether the exception to those terms applied. That led the trial judge to a consideration of R. v. Blaker, 2012 ONSC 6397. In Blaker, Justice Code held that on a charge of breaching a court order, the inapplicability of an exception to the order is not an element that must be proved by the Crown unless there is evidence that gives an air of reality to the availability of the exception. After reviewing Blaker, the trial judge held:

Mr. Dinardo was able to testify definitively that he was not at home that day, being June 7^th, 2013, but yet testified that given that he was arrested 12 days later he could not remember who was responsible for the dogs when he was out that day. The 12 days curiously did not affect his memory of not being there. He was unable to state that he had given any instructions to anyone on June 7^th, 2013, regarding the care of the dogs, all he could say was that he was not there… On cross-examination he admitted that he was not sure what others do with his dogs, this despite acknowledging that they are his responsibility.

I find that the Crown proved beyond a reasonable doubt that Mr. Dinardo was subject to a peace bond with the condition in question, that Mr. Dinardo knew of this condition and that on June 7^th, 2013 the dogs were outside, not in his company or in the company of an adult, as required by the condition. The evidence…was uncontradicted as to them being outside and unaccompanied by Mr. Dinardo or an adult. I find based on the evidence of Mr. Dinardo that the defence that he was putting forth as to having left them in the care of another with proper instructions so as to be in compliance with the condition of the peace bond has not met the air of reality threshold, which would then require the Crown to negative the defence beyond a reasonable doubt.

I make this finding based on the evidence of Mr. Dinardo and his was the only evidence called on this point, that as he stated he was not sure what others did and there is no evidence whatsoever that on that day he had made any arrangements with anyone to look after the dogs so as to be in compliance with this condition.

Given my finding that the Crown has proved beyond a reasonable doubt that he breached this condition and the defence has failed to meet its burden to raise its defence to an air or reality I find that Mr. Dinardo is guilty of breaching the condition of a recognizance under s. 810 of the Criminal Code.

[7] In my respectful view, the trial judge misapprehended Mr. Dinardo’s evidence. It was not his position that he had left the dogs with another adult on June 7. He was not claiming that an exception to the term of the recognizance applied. Blaker had no application to this case. His evidence was that he had locked the dogs in the garage and that he did not know how they got out. The trial judge’s rejection of his “defence…as to having left them in the care of another with proper instructions so as to be in compliance with the condition of the peace bond” was a rejection of evidence that he never gave. Further, in stating “there is no evidence whatsoever that on that day he had made any arrangements with anyone to look after the dogs so as to be in compliance with this condition” the trial judge appears to have imported into the recognizance a requirement that the appellant engage someone to take care of his dogs when he was away from the house. There was no such requirement, but in any event that is not what he was charged with doing: he was charged with allowing the dogs to be outside unaccompanied. His position was that he did not allow them to be outside on June 7 and that he did not permit anyone else to take them outside on June 7.

[8] On this appeal, Crown counsel submitted that the reasons of the trial judge make clear, albeit only implicitly, that she rejected the appellant’s denial that he had allowed the dogs to be outside unaccompanied. Accordingly, he submitted, the failure to directly address that denial did not cause a substantial harm or miscarriage of justice. I cannot accept that submission. It would have been open to the trial judge to reject Mr. Dinardo’s evidence in its entirely, but I do not think that it can be safely inferred that she did so. Thus, it cannot be inferred that, had she considered it, she would inevitably have rejected his position that he did not allow the dogs to be outside on June 7.

[9] Accordingly, the appeal is allowed, the conviction is set aside, and a new trial is ordered. The appellant has now completed almost 12 months of the 18-month term of probation that was imposed by the trial judge. In all of the circumstances the Crown might give some thought to whether it would be in the interests of justice to proceed further in this matter.

MacDonnell, J.

Date: October 30, 2015