Court File and Parties

COURT FILE NO.: CR-19-0013-00AP

DATE: 2020 Aug 25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Kevin Maracle

BEFORE: Mr. Justice Gary W. Tranmer

COUNSEL: A. Zegouras, for the Crown M.C. Halfyard, for the Appellant

HEARD: August 11, 2020, by telephone conference on consent due to COVID-19 pandemic

ENDORSEMENT

(Summary Conviction Appeal)

[1] Mr. Maracle appeals from his conviction in the Ontario Court of Justice rendered October 29, 2018 of wilfully and without lawful excuse killing a dog, the property of another person that was kept for a lawful purpose, contrary to section 445(1)(a) of the Criminal Code.

[2] The sole issue for trial was whether there was a lawful excuse for killing the dog.

[3] For the purposes of this summary conviction appeal, in this particular case, Crown and defence counsel agree that the presiding Justice erred in law in placing the burden on the accused to prove lawful excuse on the balance of probabilities. Counsel agree that where an accused raises an air of reality to the asserted defence, the burden falls on the Crown to disprove the defence beyond a reasonable doubt. Counsel agree that in this case, there is an air of reality to the defence of lawful excuse. R. v. Simpson, 2015 SCC 40, [2015] 2 SCR 827, para. 31.

[4] The only issue on this appeal is the Crown position that pursuant to s. 686(1)(b)(iii) notwithstanding the legal error made by the trial judge, there was no substantial wrong or miscarriage of justice and that therefore, the appeal should be dismissed.

[5] In R. v. Brydon, 1995 CanLII 48 (SCC), [1995] 4 SCR 253, para. 6, the Court stated, “I would further add that I have some reservations as to whether s. 686(1)(b)(iii) would ever be available to cure an erroneous instruction which may have misled a jury into improperly applying the burden of proof or reasonable doubt standard.”

[6] Although Mr. Maracle’s trial was held before a judge alone, the error in law made by the trial judge engages the fundamental principles of criminal law namely, presumption of innocence, burden of proof and reasonable doubt. It also engages Mr. Maracle’s right to make full answer and defence.

[7] Mr. Maracle’s evidence at trial included his assertion that he did not make up his mind to shoot the dog until it turned to charge at him, fast, from a short distance away. This evidence is supported by his wife and the attending police officer, the latter who testified that the dog was facing in the direction of the Maracle property when it died.

[8] Without addressing this evidence in his reasons, the trial judge concluded that the accused intended to kill the dog at an earlier point in time namely, when he first exited the residence. The trial judge expressed concern that there were other options available to the accused rather than to shoot the dog.

[9] The Crown does not dispute the proposition that if this evidence of the accused as to when he decided to shoot the dog was believed or left the trier of fact with a reasonable doubt as to the circumstances in which the decision to shoot the dog was made, it could constitute a lawful excuse.

[10] It may be that the trial judge did not articulate a WD analysis because of his error in misplacing the burden of proof on the accused. I am concerned that the error may have misled the judge into improperly applying the reasonable doubt standard.

[11] In the face of such evidence, it cannot be said that the case against the accused was so overwhelming that a reasonable and properly instructed jury would have inevitably convicted. It cannot be said that the verdict would have been the same if the error, which is serious, had not been committed. R. v. Van, 2009 SCC 22, [2009] 1 SCR 716, paras. 34 to 36.

[12] I find that the Crown has failed to meet its burden with respect to the applicability of s. 686(1)(b)(iii).

[13] For these reasons, the appeal is allowed and a new trial is ordered.

Honourable Mr. Justice Gary W. Tranmer

Released: August 25, 2020