



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fleschhut, 2018 ONCA 911

DATE: 20181113

DOCKET: C62471

Feldman, Roberts and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tyson Fleschhut

Appellant

Tyson Fleschhut, in person

Danielle Robitaille, duty counsel

Vallery Bayly, for the Crown

Heard and released orally: November 5, 2018

REASONS FOR DECISION

[1]

The appellant seeks leave to appeal from the summary conviction appeal
    judges dismissal of his appeal from conviction, under s. 445(1) of the
Criminal
    Code
for wilfully killing a dog
.

[2]

Despite the able submissions of duty counsel, Ms. Robitaille, for which
    we are grateful, we see no error in the finding of
mens rea
relating
    to recklessness by the trial judge or by the summary conviction appeal judge.

[3]

Section 429(1) of the
Criminal Code
defines wilfully for the
    purposes of s. 445(1) and reads:

Every one who
    causes the occurrence of an event by doing an act or by omitting to do an act
    that it is his duty to do, knowing that the act or omission 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.


[4]

In this case, the trial judge found in the alternative that the
    appellant was reckless. Although his analysis was not fulsome, he explained
    that:

I would rule that considering the
    totality of the circumstances of the residence, the state of disarray, and the
    lumber lying around that he was reckless.

[5]

The summary conviction appeal judge noted that the trial judge
    specifically referred to a 429(1) in the preamble to his reasons and turned his
    mind to the issue of wilfulness when he made the finding of recklessness. In
    our view, when the reasons are read in their totality, the trial judge has made
    it clear that he was finding that the appellant threw the dog six feet on to the
    pile of debris with protruding nails, knowing that landing there was likely to
    cause the dogs death.

[6]

Therefore, as the test set out in
R. v. R.R.
, 2008 ONCA 497, 90
    O.R. (3d) 641 for the granting of leave to appeal has not been met, the motion
    for leave to appeal is dismissed.

K. Feldman J.A.

L.B. Roberts J.A.

Fairburn J.A.


