



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. MacKenzie, 2017 ONCA 638

DATE: 20170804

DOCKET: C60093

Laskin, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John MacKenzie

Appellant

Frank Miller, for the appellant

Kathleen Farrell, for the respondent

Heard: June 16, 2017

On appeal from order of Justice Scott K. Campbell of the
    Superior Court of Justice, dated February 6, 2015, dismissing an appeal from the
    convictions entered on March 26, 2014 by Justice Gregory A. Campbell of the Ontario
    Court of Justice.

Simmons J.A.:

A.

introduction

[1]

Following a trial in the Ontario Court of Justice,
the appellant
    was convicted of two offences: i) wilfully killing a dog, the property of a
    friend, without lawful excuse; and ii) wilfully causing unnecessary pain and
    suffering to a dog by strangulation and suffocation with tape and a chain.

[2]

The dog was found dead in the appellants yard on April
    25, 2012. The first person who saw the dog noted that he was tethered to a tree
    with a lead  and that he had a choke chain around his neck and electrical tape
    wrapped around his muzzle.

[3]

At trial, the veterinarian who examined the dog
    testified that the likely cause of death was strangulation by the choke chain. Although
    she testified that taping a dogs muzzle would cause stress, she also
    acknowledged that
different dogs would react differently to having tape
    wrapped around their muzzle. Further, the extent of a dogs reaction could
    depend on how tightly its muzzle was wrapped.

[4]

The appellant did not testify at trial. However, in
    various out-of-court statements that were introduced at trial, the appellant
    acknowledged that he had wrapped the electrical tape around the dogs muzzle
    and left him tied to the tree on a choke chain.

[5]

The main issues at trial were causation and
mens
    rea
.

[6]

The trial judge accepted the veterinarians opinion that the dog
    strangled on the choke chain and also concluded that the tape was a
    contributing cause of the dogs death.

[7]

In convicting the appellant of both charges, the trial judge relied in
    part on s. 429(1) of the

Criminal Code
, which deems
    recklessness to be wilful conduct for the purposes of the offences. Relying on common
    sense, the trial judge concluded that the appellant knew that putting tape
    around the dogs muzzle would cause the dog to struggle. Further, because the
    dog was on a choke chain, the trial judge was satisfied that the appellant also
    knew that, through struggling because of the tape on his muzzle, the dog would probably
    harm himself and ultimately die  and that the appellant was reckless whether
    these events would occur.

[8]

On appeal to the Summary Conviction Appeal Court (the
    SCAC), the convictions were upheld.

The SCAC
    judge found that the trial judges conclusions on causation and knowledge were
    available inferences on the record. The SCAC judge also concluded that the
    trial judge could have relied on s. 445.1(3) of the
Criminal Code
,
    which deems failure to exercise reasonable care for an animal to be proof of
    wilfully causing pain and suffering in certain circumstances.

[9]

The appellant applies for leave to appeal his
    convictions to this court and argues that the SCAC judge erred in failing to
    find that the trial judge improperly took judicial notice of adjudicative
    facts, namely causation and knowledge.

[10]

Framed differently, the appellants position is that the trial
    judges findings that the tape on the dogs muzzle was a contributing cause of
    the dogs death and that the appellant knew that taping the dogs muzzle would
    cause harm and eventually death were speculative and contrary to the expert
    evidence. The appellant also argues that the SCAC judge erred in relying on
s.
    445.1(3) of the
Criminal Code
as a basis for upholding the convictions
    because neither the trial Crown nor the trial judge invoked that section.

[11]

In the particular circumstances of this case, we did not call on the
    Crown to address the question of leave or the substantive issue as framed by
    the appellant. Rather, we asked the Crown to address the question of the
    reasonableness of the verdicts, which, in our view, is the main issue on
    appeal.

[12]

For the reasons that follow, I would grant leave to appeal, allow
    the appeal in part, set aside the appellants conviction for willfully killing
    the dog and acquit the appellant of that charge. I would dismiss the balance of
    the appeal.

B.

Background

[13]

The
    charges were laid after a personal support worker for the appellants mother
    discovered a dog lying on the ground in the appellants yard around noon on
    April 25, 2012. The dog was tied to a tree with a lead and had a choke chain
    around his neck. The worker described the choke chain as being so tight it was
    disgusting. She noticed later that the dogs muzzle was taped.

[14]

According
    to the personal support worker, during previous visits to the home, she had had
    to wedge herself between the dog and the door, so as not to let the dog in the
    house. She described the dog as being not overly friendly on those occasions,
    but not vicious. She said he did not try to bite her or growl at her.

[15]

Police
    attended the scene one to two hours after the personal support workers arrival
    at the home. They found a male German shepherd in the appellants front yard
    that was obviously dead. The dog was lying on the ground and had black
    electrical tape wrapped around his muzzle. One officer described the dogs
    muzzle as being taped shut with electrical tape. Another officer noticed what
    he thought were blood spots leading to the appellants door. When the appellant
    appeared at the door his right hand was bandaged and the bandage was
    bloodstained. The appellant told the officer the dog bit him and later
    strangled himself in the night.

[16]

A
    Humane Society worker went to the appellants home the day after the dog was
    found. The appellant told the Humane Society worker that he (the appellant) was
    looking after the dog for a friend. The dog had been tied to a tree in the
    front yard with a leash and a choke chain. The day before the dog died, the dog
    bit the appellant when he tried to take the dog off his chain so the appellant could
    take him inside.

[17]

On
    April 25, 2012, the dog was barking continuously. The appellant went to bring
    the dog inside but wrapped electrical tape around the dogs muzzle and nose so the
    dog could not bite him. The appellant tried to take the dog off his chain but
    was unable to do so. He went away. When he returned two hours later the dog was
    dead.

[18]

The
    veterinarian who performed a post-mortem examination on the dog testified at
    trial. When she examined the dog, the tape was no longer on his muzzle.
    Although she could not definitively exclude other possible causes of death, in
    her opinion, the dog died by strangulation as a result of major blood vessels
    being closed off by a ligature in the area of a linear bruise that encircled his
    neck. When asked to describe the texture of the linear bruise, the veterinarian
    said you could see little vertical lines indented into the dogs skin,
    especially over the top of the neck. Although she did not see the choke chain
    the dog had been wearing, she said the little vertical lines would fit with the
    links in most choke chains.

[19]

The
    dog also had petechia or pinpoint bleeds on his face and ears and on his skin
    ahead of the linear bruise, moving up the neck toward the head. In the
    veterinarians opinion, the ligature around the dogs neck would have closed
    off major blood vessels running to and from the head, causing pressure to build
    up and rupture capillaries ahead of the ligature, causing the petechia. The
    only other injuries the veterinarian noted was an abrasion on the right side of
    the dogs muzzle and a smaller abrasion under the dogs right eye. The dog was
    internally healthy and apart from the injuries she noted, the dog did not appear
    to have any kind of health concerns.

[20]

When
    asked during examination-in-chief about the physical and psychological effects
    of taping a dogs muzzle, the veterinarian testified that it would cause a lot
    of stress. She explained that dogs can only release heat and pant with an open
    mouth. They would automatically want to get the tape off. She acknowledged that
    if it was not hot, a dog would not be panting. However, she said if a dog
    started getting stressed out and anxious, the dog could start to pant.

[21]

The
    veterinarian said she would expect a dog to be clawing at the tape, trying to
    get it off and that the dog could start running backwards, just trying to get
    the tape off its face. Although she testified that she did not think this dog
    would have died just from having the tape around his mouth, she thought it
    would have added an extra level of distress to his mental state before he
    actually strangled. She said if the dog ran to the end of the chain and
    continued pulling, the choke chain would continue to tighten. If the dog
    panicked enough and did not stop, he could have pulled until he strangled
    himself.

[22]

In
    cross-examination, the veterinarian agreed that a dogs mouth would have to be
    taped shut to prevent him from panting. However, while she acknowledged that
    different dogs would react differently to having tape wrapped around their
    muzzle, she maintained that a dog would want the tape off. How aggressively a
    dog would try to get the tape off would vary. The veterinarian acknowledged that
    other things could have caused a panicked response in the dog and caused him to
    strangle himself apart from the tape. She also confirmed that apart from the
    two abrasions, she did not see any claw marks or other signs of the dog
    scratching at the tape.

[23]

In
    the veterinarians view, it was unlikely that the dog took a run at something
    out to the end of his chain, thereby choking himself or that the dog had a
    heart attack. She testified that if the dog had taken a one-time run at a car
    or squirrel and made it to the end of his choke chain suddenly, she would not expect
    to see any lasting impact. Choke chains are intended to get a dogs attention.
    Further, she did not observe anything about the dogs heart suggesting a heart
    attack  although she agreed you may not. However, if the dog had had a heart
    attack and died, she did not believe you would see the petechia and bruising
    she observed in this case.

C.

Relevant provisions of the
Criminal code

[24]

The
    offences with which the appellant was charged are set out in ss. 445 and 445.1
    of
Criminal Code
. The relevant portions of those sections read as
    follows:

445(1) Every one commits an offence who, wilfully and
    without lawful excuse,

(a) kills  dogs that are kept for a lawful
    purpose.



445.1(1) Every one commits an offence who

(a) wilfully causes  unnecessary pain, suffering
    or injury to an animal

[25]

As
    noted by the trial judge, s. 429(1) deems recklessness to constitute wilful
    conduct for the purpose of Part XI of the
Criminal Code
, which
    includes ss. 445 and 445.1. Section 429(1) reads as follows:

429(1) Every one who causes the occurrence of an
    event by doing an act  knowing that the act  will probably cause the
    occurrence of the event and being reckless whether the event occurs or not,
    shall be deemed, for the purposes of this Part, wilfully to have caused the
    occurrence of the event.

[26]

In
    addition to s. 429(1), s. 445.1(3) provides that, in the absence of evidence to
    the contrary, evidence that a person failed to exercise reasonable care of an
    animal, thereby causing it pain and suffering, is proof of wilfully causing
    pain and suffering:

445.1(3) For the purposes
    of proceedings under paragraph (1)(a), evidence that a person failed to
    exercise reasonable care or supervision of an animal  thereby causing it pain,
    suffering or injury is, in the absence of any evidence to the contrary, proof that
    the pain, suffering or injury was caused  wilfully, as the case may be.

D.

The trial judges reasons

[27]

The
    trial judge began his reasons by listing the salient background events leading up
    to the dogs death: prior to his death, the dog had been in the appellants
    care for some days; the day before he died, the dog bit the appellant on the
    hand; on the day of his death, the dog was tied to a tree in the appellants
    yard on a choker chain, which is a ligature that tightens as it is pulled; on
    the day of his death, the dog was barking continuously; according to a
    statement made by the appellant, on the day the dog died, he taped the dogs
    muzzle with electrical tape; and, the dog was found dead later the same day,
    chained to the tree with the electrical tape still wrapped around his muzzle.

[28]

The
    trial judge accepted the veterinarians opinion that the dog strangled on the
    choke chain. He acknowledged that the veterinarian could not rule out all other
    possible causes of death. However, he relied on her findings about the
    petechia, the absence of other indications of causation and the surrounding
    circumstances to accept her opinion about the cause of death. In the trial
    judges view, the veterinarian had indicated that the tape was a contributing
    factor in the dogs death. He concluded that the ultimate issue was whether
    the appellant wilfully killed the German Shepherd or wilfully and
    unnecessarily caused pain, suffering and injury to the dog.

[29]

Relying
    on common sense, the trial judge found that the appellant knew that putting
    tape around the dogs muzzle would cause the dog to struggle. Further, relying
    on s. 429 of the
Criminal Code
as well as common sense, the trial
    judge found that the appellant knew that, as a result of struggling because of
    the tape while on a choke chain, the dog would probably harm himself and
    ultimately die, and that the appellant was reckless whether those events would
    occur.

[30]

The
    key portions of the trial judges reasons are set out in Appendix A.

E.

The SCAC judges reasons

[31]

The
    appellant advanced several arguments to the SCAC, including the arguments now
    advanced in this court. The SCAC judge rejected the appellants argument on the
    issue of judicial notice and found that the trial judges conclusions on
    causation and the appellants level of knowledge were inferences that were
    properly available based on the trial record. The SCAC judge also concluded
    that the trial judge could have relied on s. 445.1(3) of the
Criminal Code
in relation to the charge of wilfully causing unnecessary pain and suffering to
    the dog. As noted above, that section deems failure to exercise reasonable care
    for an animal to be proof of wilfully causing the animal pain and suffering in
    certain circumstances.

F.

Discussion

[32]

As
    I have said, the main issue on appeal is whether the verdicts were
    unreasonable. In particular, the appellant contends that
the
    trial judges findings concerning causation and knowledge were speculative and
    contrary to the expert evidence.

[33]

The appellant relies on the veterinarians evidence that she could
    not exclude other causes of death, such as heart attack; that things other than
    the tape on the dogs muzzle could have caused him to panic and asphyxiate; and
    that the responses of different dogs to tape on their muzzles would be
    variable. Moreover, given that the veterinarian could not predict the dogs
    response to having tape on his muzzle, the appellant asserts it was
    unreasonable to conclude that he (the appellant) knew that taping the dogs
    muzzle would probably cause the dog to struggle on the choke chain to the point
    that he would suffer and eventually die and that the appellant was reckless as
    to whether those events ensued.

[34]

I
    would not accept the appellants submissions concerning causation or concerning
    knowledge that the dog would likely struggle and suffer on the choke chain.

[35]

For
    reasons I will explain, in my view, considered as a whole, the evidence creates
    a compelling inference that the dog died by strangling himself on the choke
    chain after the appellant wrapped electrical tape on his (the dogs) muzzle. Further,
    the evidence creates the additional compelling inference that the appellant
    knew, when he wrapped electrical tape around the dogs muzzle, that the dog was
    in an agitated state and would likely struggle and suffer on the choke chain
    and that the appellant was reckless whether those events ensued. I also agree
    with the SCAC judge that the trial judge could have relied on s. 445.1(3) of
    the
Criminal Code
in relation to the charge of wilfully causing
    unnecessary pain and suffering to the dog. For all these reasons, I would
    dismiss the appellants appeal as it relates to that charge.

[36]

On
    the other hand, I agree with the appellants argument that the veterinarians
    evidence undermines the conclusion that the appellant knew the dog was likely
    to strangle himself to death if left unattended on the choke chain with
    electrical tape wrapped around his muzzle. I would therefore allow the
    appellants appeal on the charge of wilfully killing the dog.

(1)

Causation

[37]

Although
    the veterinarian could not definitively exclude all possible causes of death
    other than strangulation on the choke chain, I am satisfied that it was open to
    the trial judge to conclude, based on the totality of the evidence, that was
    the only rational inference as to the cause of death, and further that the tape
    wrapped around the dogs muzzle was a contributing cause of the dogs death.

[38]

That
    evidence includes:

·

the veterinarians opinion that strangulation by ligature was the
    likely cause of death;

·

the veterinarians observations and opinion concerning the bruise
    encircling the dogs neck, the resemblance of the indentations in the bruise to
    the appearance of most choke chains, and the petechia the veterinarian observed
    ahead of the choke chain;

·

the veterinarians opinion that the dog was internally healthy
    and that there were no signs of heart attack;

·

the veterinarians opinion that one would not expect to see the
    petechia she observed had the dog suffered a heart attack;

·

the veterinarians evidence that a choke chain acts as a ligature
    that tightens when a dog pulls on it;

·

the evidence of the appellants statements that the dog bit him
    the day before the dog died;

·

the police officers evidence that he observed blood on the
    appellants bandaged hand;

·

the evidence of the appellants statements that he was unable to
    get the dog off the choke chain either the day before the dog died or after he
    put electrical tape on the dogs muzzle on the day the dog died;

·

the fact that the dog had been tied to a tree while on a choke
    chain throughout the day prior to his death without incident;

·

the fact that the dog was found dead within two hours of being left
    alone tied to a tree while on a choke chain and with tape wrapped around his muzzle;

·

the police officers evidence that the deceased dogs mouth was taped
    shut with electrical tape;

·

the veterinarians evidence that, while the aggressiveness with
    which they would do so would vary, dogs would try to remove tape wrapped around
    their muzzles;

·

the veterinarians opinion that a dog trying to remove tape from
    around its muzzle could start to run backwards in an effort to get the tape
    off;

·

the veterinarians observations concerning the prominence on the
    back of the dogs neck of the indentations in the bruise encircling the dogs
    neck; and

·

the veterinarians opinion that a panicked dog could pull on a
    choke chain until it strangled itself.

[39]

Viewed
    as a whole, this evidence creates a compelling inference that the dog had been
    highly agitated and aggressive in the appellants presence; that he was in that
    state after the appellant applied tape to his mouth; and that he ultimately ran
    backwards and pulled on the choke chain until he strangled himself. Considered
    in context, the appellants assertions that the dog may have died through some
    alternate, undetected cause or that it may have panicked as a result of some
    other, unknown cause, apart from the tape on his muzzle, are themselves speculative.

(2)

Knowledge that the
    dog would likely suffer on the choke chain

[40]

The
    same evidence that I have referred to above, together with the evidence that
    the dog had been in the appellants care on a choke chain during at least two
    days prior to his demise, creates the following additional compelling
    inferences: the appellant knew the dog could be agitated and aggressive; knew that
    the choke chain would tighten if the dog pulled on it; knew that the dog was
    agitated when he (the appellant) placed tape on his (the dogs) muzzle; and
    knew that the dog was likely to experience unnecessary pain and suffering if
    left alone on the choke chain in an agitated state with tape on his muzzle  and
    further, that the appellant was reckless whether these events ensued.

(3)

The trial judge could have relied
    on s. 445.1(3) of the
Criminal Code
in relation to the charge of
    wilfully causing unnecessary pain and suffering to the dog

[41]

In
    any event, in the alternative, I agree with the SCAC judge, that leaving an
    agitated dog unattended for two hours while the dog was in a choke chain with
    its muzzle taped shut demonstrates a failure to exercise reasonable care or
    supervision of an animal under s. 445.1(3) of the
Criminal Code
; that
    the appellants conduct in that regard caused the dog pain, suffering and
    injury and that, given the absence of evidence to the contrary, the appellant
    is therefore deemed to have wilfully caused unnecessary pain, suffering and
    injury to the dog.

[42]

Although
    the trial judge did not refer to s. 445.1(3), it is apparent that he reached
    the same conclusion, when he asked, rhetorically:

Is it a stretch on my part to conclude if you wrap tape on a
    dogs mouth that it is going to struggle and resist and is it unreasonable on
    my part to conclude that if somebody is charged with the care of a dog that
    they should at least, having taken that step, watch and give it some thought
    and consideration to what the consequences would be in that act? It certainly
    is not a normal act to wrap tape around a dogs mouth.

[43]

Whether
    the trial Crown relied on s. 445.1(3), absent prejudice to the appellant, it
    was open to the trial judge, and the SCAC judge, to rely on any route to
    liability available on the evidence. As the appellant did not testify, I fail
    to see how he could have been prejudiced by the failure of the Crown to refer
    to s. 445.1(3). He did not take the opportunity to assert either that he
    exercised reasonable care and supervision of the dog or that he was unaware of
    the potential consequences of leaving the dog tethered to a tree while in a
    choke chain with his muzzle taped shut.

(4)

Knowledge that the
    dog would probably die

[44]

As
    for the trial judges finding that the appellant knew that leaving the dog
    tethered to a tree while in a choke chain with tape around his muzzle would
    probably lead to his death, I agree with the appellant that the veterinarians
    evidence undermines that finding. As expressed by the veterinarian that is
    something that
could
happen if a dog panicked
    enough. She did not express that event as a likelihood. In these circumstances,
    it would be unreasonable to infer that the appellant knew that the dog would
    likely strangle himself to death if left unattended with tape around his muzzle
    while tethered to a tree wearing a choke chain.

G.

disposition

[45]

Based
    on the foregoing reasons, I would grant leave to appeal, allow the appeal in
    part, set aside the appellants conviction for wilfully killing the dog and
    enter an acquittal on that charge. I would dismiss the balance of the appeal.

Released:

GP                                                   Janet
    Simmons J.A.

AUG -4 2017                                    I agree
    John Laskin J.A.

I
    agree G. Pardu J.A.


APPENDIX A

Key Extracts from the Trial Judges Reasons

[Causation]

In the doctors opinion the chain acted
    as a ligature that tightened around the dogs neck which compromised the flow
    of blood and hence, the loss of oxygen to the brain and eventual death.

The doctor could not rule out other circumstances of actual
    death being even a heart attack, as suggested to her, but pointed to the
    extensive evidence of petechia. So to put it another way blood flow to the
    brain was cut off because the chain was too tight.

The doctor further explained that the tape around the dogs
    snout was a contributing factor indicating that the dog likely struggled to get
    the tape off, panicked with time and with anxiety, not being able to remove it
    and pulled and contorted in its efforts to remove that tape all of which would
    cause the choker chain to tighten around the dogs neck.

[Requirement to prove recklessness]

[T]here can be no doubt there was a choker chain on the dog,
    that it pulls and contracts when the dog pulls and that the tape was around the
    muzzle, applied by [the appellant].
Ultimately, I have to be satisfied
    whether [the appellant] knew that by taking those steps and doing those acts
    would probably bring about the result and that he was reckless in regard to the
    outcome
.

[Knowledge that the dog would likely struggle and injure
    itself]

It is hard for me to imagine anybody living in this society and
    not appreciating what a dog is like and how a dog behaves and one could draw
    even from their own personal experience, I would imagine, that a dog would be
    that dissimilar from anybody who is restrained or bound up, or tied up with
    something, to resist.

Is it a stretch on my part to conclude if you wrap tape on a
    dogs mouth that it is going to struggle and resist and
is it unreasonable
    on my part to conclude that if somebody is charged with the care of a dog that
    they should at least, having taken that step, watch and give it some thought
    and consideration to what the consequences would be in that act? It certainly
    is not a normal act to wrap tape around a dogs mouth
.

So it is not something to my mind that I need expert evidence
    or other evidence from someone who could speak about what [the appellant] could
    reasonably expect to be known about how the dog would react if tape was put
    around its nose.
It would resist and it would struggle, it would try to get
    the tape off
.



Did [the appellant] not appreciate when he wrapped tape around
    the dogs muzzle that it would pant which is an effort to breathe, or try to
    pant and would be restricted from its effort to breathe by trying to pant and
    would thereby struggle and try to get the tape off its nose?

There
has to be a degree of common sense that I can apply to
    appreciate that as an ordinary, reasonably prudent person, [the appellant]
    could appreciate all of this, would know all of this and that by his act could
    foresee that the probable occurrence or event would be suffering, pain and
    injury to the dog
.



[S]o for the reasons I have given
I am satisfied that the
    Crown has met its burden under count 2, that [the appellant], by putting the
    tape on the dogs muzzle and chaining it with a choker caused the dog to suffer
    and sustain injury knowing that that would be the probable outcome and that he
    was reckless as to its outcome
.

[Knowledge that the dog would likely strangle himself to
    death]

[I]n the absence of the choker I would not be satisfied that
    [the appellant] could know that his act of putting tape on the muzzle would
    probably cause the dogs death
but that tape on the muzzle, coupled with the
    choker chain tied to the tree would probably result in the dog struggling and
    the eventual strangulation, because again, I think there is a degree of common
    sense with his years in knowing that a dog does not have the capability to
    reason as a human would, to resist and stop struggling because it could lead to
    its death but would struggle eventually until its death
. [Emphasis added.]


