R. v. Helmer, 2015 ONCJ 715

CITATION: R. v. Helmer , 2015 ONCJ 715 ONTARIO COURT OF Justice Central West Region Regina -and- Scarlet Helmer Proceedings conducted 14 September 2015, at Norfolk County, Ontario Decision and Reasons issued 11 December, 2015 Appearances: Hickingbottom, S. for the Crown Battin, J. for the Defendant Statutes Considered or Cited: Dog Owners Liability Act Provincial Offences Act, R.S.O. 1990, c. P.33, as amended (“POA”) Witnesses: Rose Konkoly, civilian witness and complainant Shaun Weins, investigating officer Scarlet Helmer, defendant Maralen Louise Cooke, defendant’s aunt Decision of the Court 1 .

For the reasons set out below, I find Ms. Helmer not guilty. At the end of the combined trial and hearing, I decided to make no order for restraint pursuant to the Statement Issued Under s.161 of the POA , on the basis that Ms. Helmer no longer owned the dog in question. Background and Evidence 2 . Ms. Helmer is charged pursuant to the DOLA that on 03 August 2014 at Norfolk County as being the owner of a dog and failing to exercise reasonable precautions to prevent a dog from biting or attacking a person or domestic animal, contrary to s.5.1. 3 .

Further, a Statement was sworn under s.161 of the POA seeking that the court impose an appropriate order for control or destruction of the subject animal. 4 . Ms. Konkoly is the complainant and principle witness. She is a long-time resident in the area where the defendant - whom she knows - lives about two hundred yards from her home.

5 . She gave evidence that she was riding her bicycle eastbound on Charlotteville Road where they both live, the Helmer’s dogs followed her, and the german shepherd owned by Ms. Helmer nipped her once. She required no medical attention except for cleaning the affected area. She advised that this occurred while the dog and others belonging to Ms. Helmer were loose and unattended on the street. She stated that she knows the Helmers to have as many as eight dogs at the time and they are often at large and unsupervised. 6 .

Under cross examination, she denied that she ever fed the dogs or entered onto the Helmer property. 7 . Officer Weins investigated as a result of a reported complaint, starting at roughly 12:30pm on the day of the incident. 8 . He attended the complainant’s residence and observed injury to her left leg, appearing to be four bite marks resulting in punctures and appearing to be a result of a dog bite. In response to inquiries, he learned that the subject was a black and brown german shepherd pup. 9 .

He then attended to the Helmer residence where he observed a dog identified to him as Tyson, appearing similar to the description provided by Ms. Konkoly. The dog was on a leash and accompanied by Ms. Helmer. He made no note of any other dogs. 10 . He advised that as part of his patrol duties, he is frequently in the area and has seen the Helmer dogs both on leash and at large and unsupervised. He advised that he has seen two to three dogs related to the Helmer property. 11 .

Under cross-examination, he established that at the time he observed the dog it was secured by a collar and appeared to be properly secured. He had understood that Ms. Helmer may have been away at the time of the incident and had no information about when Ms. Helmer may have returned home. 12 . He advised that Ms. Konkoly had reported speaking with Ms. Helmer prior to his involvement, but was unaware as to what time that may have occurred. Ms. Helmer reported to the officer that Ms. Konkoly had in the past entered on the property to interact with the dog(s). 13 . In her evidence, Ms.

Helmer acknowledged having three dogs on the date of the allegations. 14 . She asserted that when she is not home, the dogs are tied up. Tyson is tied up with a thick rope with a swivel clasp at the end. 15 . She gave evidence that Ms. Konkoly is always in the Helmer’s yard. 16 . On the date of the allegations, Tyson was secured by a long rope with a clasp. She acknowledges that on that date, she was home until approximately 10:30 am. She asserted that Tyson was secured as described, and on her return to the house, Tyson was secured as she left him. 17 . She conceded that Ms.

Konkoly may have been bitten by Tyson, but if the dog did in fact bite her, it would have been on her property, given the number of occurrences when Ms. Konkoly entered onto the Helmer property. 18 . Ms. Helmer advised she has posted signed on her property warning visitors about the presence of dogs. 19 . Under cross examination, she acknowledged that she had no specific knowledge that Tyson did or did not become loose and wander onto the driveway between the residence itself and the roadway. 20 . Ms. Cooke is Ms. Helmer’s aunt and also knows the complainant by sight from the neighbourhood.

She advised that she has seen Ms. Konkoly pass by the Helmer residence, stop at the end of the driveway, enter onto the Helmer property, verbally harass the residents, and tease the dogs. Specifically, she has observed Ms. Konkoly throw sticks and stones in the direction of the dogs. 21 . Both Ms. Helmer and Ms. Cooke gave evidence that they have spoken to Ms. Konkoly and told her not to enter onto the Helmer property, however, in spite of these warnings, Ms. Konkoly has continued to do so. Issues and Analysis 22 .

Based on the evidence, I am satisfied: a. that Scalet Helmer owns the subject dog (Tyson) b. that Tyson bit Ms. Konkoly c. there have been multiple complaints regarding the Helmer dogs being at large d. that when investigating complaints, the investigating officer has only encountered the dogs at large on the Helmer property, although approximately half the time he has seen them secured while on the property; he has never found the dog(

s) to be aggressive e. the dog(

s) have never been seized pursuant to the authority set out in s.15(1) of DOLA . f. there are no prior investigations or restraint orders in relation to the Helmer dog(

s) g. Ms. Helmer is of the opinion that Ms. Konkoly ventures onto the Helmer property uninvited and may have acted on prior occasions in a manner to incite the dogs (Ms. Konkoly denies this assertion) 23 . There is a dispute as to whether the interaction between the dog and the complainant occurred on a public roadway or on Ms.

Helmer’s property. 24 . In light of these, I am prepared to distill the legal question to whether the steps taken by Ms. Helmer amount to reasonable precautions to prevent her dog from biting a person. 25 . In making my finding, I am informed and influenced by the following considerations: a. Ms.

Konkoly`s credibility suffers from her apparent zeal for seeing this prosecution succeed, as evidenced by her inability to focus on the questions put to her in chief and her apparent desire to denounce the defendant b. the evidence as to whether the dog bite occurred on the Helmer property or the roadway is ambiguous c. the gravity of the incident and the injuries reported by the complainant d. there is no evidence of prior biting by Tyson e. there have previously been no apparently any grounds for seizures of any of Ms. Helmer’s dogs nor any prior orders for restraint f. Ms. Helmer took steps to ensure her dog(

s) were secured when she left the property that morning and specifically observed the dog Tyson secured in the same fashion on her return g. Ms. Helmer has posted signs regarding the presence of her dog(

s) and has admonished Ms. Konkoly not to enter on the Helmer property 26 . I am aware that further steps might have been available to Ms. Helmer in the circumstances. For example, she may reasonably have ensured that her dog(s), and in particular Tyson be in a penned area whenever she is off her property or, indeed, if she or others were on the property but not in immediate control of the dog(s). Further, she may have issued a trespass notice and/or sought enforcement of same, given her claims that Ms. Konkoly frequently entered onto her property uninvited. 27 .

In these circumstances, however, with particular focus on the fact that there is no evidence of prior aggressive behaviour by Tyson, I am satisfied that the steps taken by Ms. Helmer amount to reasonable precautions. 28 . As a result, I find her not guilty of the charge. 29 . Given that finding, I am not prepared to issue any orders for restraint in these circumstances. Issued at Norfolk County, Ontario, 11 December, 2015 _____________________________ His Worship Donald Dudar Justice of the Peace