R. v. Spence-Wilkins, 2013 ONCJ 815

St. Thomas Citation: R. v. Spence-Wilkins, 2013 ONCJ 815 R. v. SPENCE-WILKINS May 9, 2013 Crown: S. Venne Defence: J. Pitblado Justice of the Peace Anna Hampson : Susanne Spence-Wilkins is facing a charge under s. 18(1) of the Dog Owner’s Liability Act for an incident that happened onMarch 22, 2012 when the dog named Mac, tragically killed a cat named Barn Mother, on a farm located in the Municipality of WestElgin. At the commencement of the trial on March 18, 2013, the crown withdrew count #1 on Information 12-0161 and thus the matterproceeded only on count #2.

In addition, the defendant brought an application for a stay of the proceedings pursuant to s. 24(1) of theCharter due to a violation of her right to be tried within a reasonable time pursuant to

Section 11(

b) of the Charter. With the consent ofcounsel, the matter proceeded upon the basis of hearing the evidence and submissions on the merits as well as hearing the argument andsubmissions on the Charter application. There are 3 issues involved on the merits. First: Is the defendant an “owner” pursuant to s. 5.1 ofthe Dog Owner’s Liability Act? Second: was “Barn Cat” a domestic animal pursuant to the same

section of the Dog Owner’s LiabilityAct? Third: If the defendant is an owner, and that “Barn Cat” was a domestic animal, has the defendant established a due diligencedefence? The matter was put over to today’s date for a decision. I intend to provide a decision on the Charter application first. CHARTER APPLICATION AND ANALYSIS In support of the application, the defendant relied upon the Notice of Application, the Factum and Book of Authorities, and thetranscripts of the proceedings of July 27, 2012, September 14, 2012, October 22, 2012 and November 23, 2012.

No affidavit materialwas filed and no viva voce or evidence was called in support of the Application. The onus is on the defendant to prove that there was anunreasonable delay on a balance of probabilities. As I understand from the Factum and the oral submissions, the defendant’s mainargument is based on the fact that the court determined that a judicial pre-trial was required in this matter due to a rule in Elgin Countythat a trial that was expect to be longer than 4 hours required a pre-trial and that was a major cause of the delay.

Intertwined with this, isthe defendant’s position that the reason the matter was going to take either 3 or 4 hours and then ultimately a day was due to the countthat was actually withdrawn the morning of trial, and that this is another factor that is to be taken into consideration in deciding whetherthere is an unreasonable delay.

The crown’s position is that there has been no unreasonable delay in these proceedings, that the pre-trialwas a proper procedure and is often used to narrow issues and canvas resolutions, and that it is prosecutorial discretion whether a chargeis withdrawn or not and that this does not factor into any analysis of the delay. A breach of s. 11(

b) is not determined by the application of a mathematical or administrative formula and involves an analysis ofthe balancing of the rights of the defendant and society: See R. v Morin (1992) (SCC), 71 CCC (3d) 1 (SCC). Accordingto Morin, the factors that must be considered to determine if a delay violates s. 11(

b) are: 1. the length of the delay 2. waiver of time periods 3. the reasons for the delay, including a. inherent time requirements of the case b. actions of the accused c. actions of the Crown d. limits on institutional resources; and e. other reasons for the delay, and 4. prejudice to the accused. In this case, the length of the delay is 11 months 16 days being from the date the Information was sworn (April 2, 2012) to March 18,2013 plus an additional 52 days to today’s date.

Given the total delay of 13 months 7 days (402 days) and that there are no waivers ofany time periods, it is necessary to examine the reasons for the delay. The information was sworn on April 2, 2012. It would appear from the endorsements that a summons was issued for April 27th. On April 27th, another summons was issued for May 25th. On May 25th, another summons was issued for June 22nd. On June 22nd,

again, another summons was issued for July 27th. On July 27th, Mr. Pitblado appeared for the defendant. The defendant had not attended April 27, May 25 or June 22nd. A reasonable inference would be that the defendant had not been served with any of the summons or at least there was no proof of service. Mr. Pitbalado argues that a “good portion” of this time between April 2nd and July 27th is attributed tothe police and therefore the crown as the police should have served the defendant sooner, although he did not suggest what was meant by“a good portion”.

Realistically, this time is more properly referred to the “intake period” and service of a summons is part of the inherenttime involved in any case. The question becomes, whether this entire intake period is truly neutral, or was it excessive and thus amountedto delay. As was noted in R. v. Mahmood, 2012 ONSC 6290 at paragraph 38 The Supreme Court of Canada has not yet articulated any nationally applicable administrative guideline for this neutral “intake” period,and has instead permitted such guidelines to develop regionally according to local practices and conditions.

The Court of Appeal forOntario has concluded that a reasonable neutral period of time for such “intake” matters in Ontario can vary between two months andeleven months in duration, depending upon the nature of the case and the degree and nature of the “intake” functions that must becompleted. See, for example: R. v. Morin, [two months]; R. v. Sharma, [three months]; R. v. Kovacs-Tatar (ONCA), (2004), 192 C.C.C. (3d) 91 (Ont.C.A.) at para. 46-47 [four months]; R. v. Seegmiller (ON CA), (2004), 191C.C.C. (3d) 347 (Ont.C.A.) at para. 14 [five months]; R. v.

Steele, 2012 ONCA 383 , 2012 ONCA 383, at para. 16-17 [fivemonths]; R. v. J.G.B. reflex, (1993), (SCC), 85 C.C.C. (3d) 112 (Ont.C.A.) at pp. 115-116; Affirmed: reflex, (1993), 85C.C.C. (3d) 112 (S.C.C.) at p. 117 [seven months]; R. v. G.(C.R.), at para. 7 [over seven months]; R. v. Ribic, at para 119-124 [overseven months]; R. v. Khan (2011), 2011 ONCA 173 , 270 C.C.C (3d) 1 (Ont.C.A.) [seven and a half months]; R. v. Qureshi, atpara. 27, 32, 37 [eight months]; R. v. Cranston, at para. 41-46, 52-53 [nine months]; R. v. Schertzer, at para. 71-72 [eleven months]. In support of his argument, Mr.

Pitblado relied upon the case R. ex rel City of Toronto v. Andrade; R. ex rel City of Toronto v.Harirji, 2011 ONCJ 470 . I note that leave to appeal to the Ontario Court of Appeal was granted on November 23, 2011specifically to deal with appropriate guidelines for reasonable intake and institutional delay in the prosecution of

Part 1 POA offences.The case before me is a

Part 3 proceeding and thus Andrade is of limited assistance. The transcripts of these earlier appearances have notbeen provided. Since the onus is on the defendant to prove the violation of s. 11(b), I have no evidence as to the reasons why there wasno service- was it a problem with the summons itself, was it a problem of there not being any proof of service even though the defendantmay have been served, was there even any attempt at service, was the defendant avoiding service, was the defendant unavailable for aperiod of time and that’s why there was no service.

In these circumstances, I find that these 116 days of the inherent time requirementsare part of the neutral intake. According to the transcript of July 27th, Mr. Pitblado was provided with the disclosure. The crown of the day suggested a return date of August 24th, but counsel was in Owen Sound that day, there was no court on August 31st, counsel was in London on September 14th, September 28th was suggested, but Mr. Pitblado eventually agreed to September 14th.

Although there is no indication that counsel was available on August 31st when there was no court, the time to review disclosure and receive instructions is all part of the inherenttime requirements of a case and are properly part of the neutral intake requirements. Delay as a result of the limits on institutionalresources only arises when the parties are ready for trial and the system cannot accommodate them. The parties were not ready for trialat this point, and thus I find that these 49 days are all part of the neutral intake period involved in the inherent time requirements.

It is at the next appearance on September 14th, when the pre-trial is scheduled that Mr. Pitblado argues is “institutional delay” andcontributes to the overall unreasonable delay.

It is necessary to examine the transcript of that appearance in detail and therefore, I set itout in its’ entirety: (just read it) From the transcript it appears that there was some attempt to have the length of time reduced from 4 hours to 3 hours to avoid thenecessity of the pre-trial, and that it was a procedural requirement to have a judicial pre-trial for a matter anticipated to be longer than 3 hours, and that a trial date would be set after the pre-trial. The pre-trial was scheduled for October 22nd. A return date of October 26th was offered, but counsel was not available.

The next available date of November 23rd was scheduled at which time the trial would bescheduled. At this point in time, it was anticipated that the trial would be 4 hours. According to the transcript of the proceedings on October 22nd, the pre-trial was conducted and the defendant was going to consider some sort of crown proposal and the matter was adjourned to November 23rd to set the date for trial. According to the transcript of the proceedings on November 23rd, a full day was now anticipated by counsel. Crown counsel suggested February 13 or 14 and Mr. Pitblado agreed with February 14th.

It was at that pointthat the court requested the matter to stand down so the senior regional office could be consulted and inquired whether a pre-trial hadbeen conducted. It would appear that efforts were made in court to

schedule the day long trial without the matter standing down, and that March 18th was the day offered for the day long trial. In the recent case of R. v. Tran, 2012 ONCA 18 , the Ontario Court of Appeal concluded, inter alia, at paragraph 34“requiring judicial pre-trials to set trial dates is a “reasonable and necessary case management tool in busy judicial centres designed toensure overall timeliness of the system and thus protect the Charter rights of accused generally in presentation of cases.

Accordingly,some reasonable period of delay in arranging a judicial pre-trial should be treated as part of the inherent time requirements of thecase”. Although Mr. Pitblado attempted to distinguish Tran on the basis that Tran involved serious drug charges as opposed to the type ofoffence the defendant is facing, as well as on the basis of some untimely applications by the defence in Tran, but here, has been readyand wanted to set the trial date in September or at least at the pretrial in October, I do not find that Tran is distinguishable. The principlesare binding and the analysis is most helpful.

The Court of Appeal in Tran also referenced the case of R. v. Lahiry [2011] ONSC 6780, adecision of Justice Code of the Superior Court, and approved of the principles in Lahiry concerning how to address the reasons for thedelay. This includes the principle that parties should not be deemed automatically to be ready to conduct a trial as of the date a trial is set

as counsel needs time to clear their

schedule to be available and to prepare. See para 32 of Tran. The court in Lahiry and in Tran were critical of counsel not putting on the record available dates and without that information, it is difficult, if not impossible to determine how the delay between the pre-trial and the commencement of the trial should be allocated see para 39 of Tran. These principles were also applied and confirmed in R. v. Mahmood .

In this case, I find that the time between September 14 th (the day the pre-trial was scheduled) and October 23 rd (the day the pre- trial was heard), namely 39 days, is part of the inherent time requirements of the case in accordance with the principles in Tran and Lahiry and Mahmood. I also find that the time between October 23rd and November 23 rd , namely 30 days, is also part of the inherent time requirements as the amount of trial time required increased to a full day and it takes time to make those arrangements, and counsel was not available on October 26 th .

The trial date of March 18 th was set on November 23 rd . This amounts to 115 days (or almost 4 months). On November 23 rd , it now appears that a full day was required as opposed to the 3-4 hours initially discussed in September. There is some evidence that February 14 th was a date that both counsel were available but that there may not have been time available on February 14th. There is no evidence that counsel was available at any earlier time, nor is there any evidence that there were earlier dates available for a 1 day trial.

Delay as a result of the limits on institutional resources only arises when the parties are ready for trial and the system cannot accommodate them. In this case, it cannot be said that the entire 115 days is due to institutional delay. As noted above in Tran and Lahiry, counsel cannot be deemed to have been ready to conduct the trial on November 23 rd when the trial date was set. Time would be needed to clear schedules and prepare- perhaps 7-14 days would be appropriate here as part of the inherent time requirements.

Even if the entire 115 days (or almost 4 months) is attributed to “institutional” delay, the delay still falls well below the “guidelines” of 8-10 months in Morin . When the 52 days from the trial to today’s date are added as institutional delay, the total delay is less than 6 months, again well below the “guideline”. In

summary, I have calculated the 402 days from the date of the Information was sworn to today’s date as follows: April 2/12 to July 27/12: neutral intake as part of inherent time- 116 days July 27/12 to September 14/12: neutral intake as part of inherent time: 49 days September 14/12 to October 23/12: inherent time: 39 days October 23/12 to November 23/12: inherent time: 31 days November 23/12 to March 18/13: inherent time: 14 days; institutional delay: 101 days March 18/13 to May 9/13: institutional delay: 52 days Totals: Inherent time: 249 days; Institutional delay: 153 days (5 months 3 days) In all of the circumstances, I do not find that there has been a breach of the Defendant’s right to be tried within in a reasonable time.

I do not find that there is unreasonable delay. The fact that the trial did not actually take a full day due to the crown withdrawing count number 1 is of no consequence in these circumstances as there was no unreasonable delay. In addition, that was prosecutorial discretion whether to proceed with count #1. Decisions are made by the crown and the defence throughout the proceedings that may or may not affect how long a matter takes to come to trial. The application for a stay of the proceedings is dismissed. I now turn to the merits of the trial. THE EVIDENCE Mr.

Buchan (Buckin) testified on behalf of the prosecution. He is a neighbour of the defendant and resides at his brother’s farm located at 21439 Talbot Line, Municipality of West Elgin for the past 10 years. On March 22, 2012, he and his brother had returned from another farm and completed the chores. It was approximately 6:00 p.m.. They fed the barn cats 10-15 of them. This was the usual routine. They did some more work unloading and loading bales of hay. It was noisy. He heard a commotion and could hear dogs barking loudly. He looked towards the highway and saw a black pickup truck driving slowly.

The passenger side window was down and he could see a dog. It was barking at another dog that was running loose on the side of the road. It appeared to be following the pickup truck and not chasing it. He recognized the truck as belonging to his neighbour, Manfred Wheelie, although he wasn’t certain Mr. Wheelie was driving the truck at the time. He recognized the dog in the truck as he had seen it many times over the year.

He had only seen the other dog once before- the night before doing the same thing- running loose on the side of the road while the pickup was traveling slowly with the other dog inside and both of them barking at each other. The pickup and the dog running loose were about 150- 200 meters east of the driveway to the farm. It turned south onto McCall and was driving slowly. The loose dog cut the corner and ran into the ditch and he lost sight of it. The pickup continued slowly and then backed up and stopped.

As he was watching, he saw the dog “leaping in the air with our pet in its mouth” and was shaking it from side to side. He could see that it was “Barn Mother”- a large beige and white cat that weighed 7-8 lbs. He recalled that Barn Mother was not present when the other 10-15 cats were being fed. The dog was shaking the cat from side to side and the cat was flopping back and forth. He watched 10-20 secs, called to his brother that the dog had Barn Mother, and then went to his car and drove to where the dog was. He got out, the dog had dropped the cat on the ground, looked at him and then ran away.

The cat’s eyes were glassy, she was gasping, her neck was broken and the cat died. He got back in his car, caught up to the pickup truck, got into a confrontation with the driver who was in fact Mr. Wheelie. He called the police and gave a statement to Officer Bird. The cat, named Barn Mother, was present in the barn 8/10 times that they came in to feed the cats. She was also known to go out hunting for mice. She would also follow them up and down the barn. That particular night, she was not present when the other cats were fed.

In cross examination, he testified that there could have been 20 cats, that his brother looks after them more than he does, that there were no vet bills for Barn Mother, and that they buried her. Officer Sharon Bird also testified for the prosecution. On the night in question, she arrived and spoke with Mr. Buchan. She

investigated further by speaking with Mr. Wheelie and with the defendant. Her conversation with the defendant was admitted intoevidence on consent. The defendant admitted that the dog, Mac, belonged to her son but that she was responsible for it as he was goingout of the country, and that Mac was the dog that killed the cat. The defendant lived the next concession over from Mr. Buchan. The defendant testified on her own behalf. She was not aware that Mac had been running loose the day before the incident. Mr.Wheelie was her boyfriend but they did not live together. Mac belonged to her adult son, Aaron Wilkins.

She had registered Mac inobedience school in 2008. Mac had been staying with her for a week and a half and was going to be going back to Aaron 1-2 weeks later.She was going to give a speaking engagement out of town. Prior to leaving, she put Mac outside on a chain. The weather was beautiful.She got back about 8:30 p.m. and Mr. Wheelie started to tell her what happened with the dogs when the police arrived. The dog chainlock has been replaced. In cross examination, she testified that her son, Aaron, is a student in Windsor and he owns Mac. She had beenthe caregiver for Mac for a few weeks.

She lived on a farm owned by Mr. Wheelie. On the night in question, she left about 5:30 p.m..and left Mac outside on a chain. She did not leave the dog with Mr. Wheelie because “I was responsible for him”, but that Mr. Wheelieknew the dog. She did not investigate any other possibility of taking care of Mac while she was going to be away for 3 hours other thantying him up on a chain. He had been left out on a chain quite a bit, and that was one of the reasons why she was taking care of himbecause she did not want him left on a chain so much. She doubted that she had ever left him on a chain for 3 hours before.

When she gothome, Mr. Wheelie was there with the 2 dogs and he had just started to tell her what happened when the police arrived. THE CHARGE AND LAW The relevant provisions of the Dog Owner’s Liability Act are:

Definitions 1.

(1) In this Act, “owner”, when used in relation to a dog, includes a person who possesses or harbours the dog and, where the owner is a minor, theperson responsible for the custody of the minor; (“propriétaire”) Precautions by Dog Owners Owner to prevent dog from attacking 5.1 The owner of a dog shall exercise reasonable precautions to prevent it from, (

a) biting or attacking a person or domestic animal; or (

b) behaving in a manner that poses a menace to the safety of persons or domestic animals. 2005, c. 2, s. 1 (15). Offences Offences 18.

(1) An individual who contravenes any provision of this Act or the regulations or who contravenes an order made under this Actor the regulations is guilty of an offence and liable, on conviction, to a fine of not more than $10,000 or to imprisonment for a term of notmore than six months, or both. 2005, c. 2, s. 1 (16). Same The prosecution must prove beyond a reasonable doubt that the defendant is an “Owner” within the meaning of the Dog Owner’sLiability Act. This is a strict liability offence.

If the prosecution proves beyond a reasonable doubt the actus reus, namely a dog “bitingor attacking a person or domestic animal”, then the onus shifts to defendant to establish on a balance of probabilities that he or she tookall reasonable steps to avoid the commission of the offence or believed in a mistaken set of facts which if true would render the act oromission innocent.

I am satisfied beyond a reasonable doubt that the defendant, Susanne Spence-Wilkins, is an owner within the meaning of the Act.By use of the words “owner...includes a person who possess or harbours the dog”, the statute clearly provides for the possibility thatthere could be more than one owner and is not limited to the person who purchased the dog or the person who receives the dog as a giftas would be found in the usual definition of “owner”.

The defendant is an owner by her own admission- she was the one responsible forMac while her son was away; she had been taking care of him for at least a week and a half and one of the reasons she was taking care ofhim was because she didn’t want him left on a chain so much. In this sense, she “harboured” the dog- one of the ordinary Webster’sdictionary meaning of harbour is “to serve as, or provide a place of protection to; shelter or house; conceal or hide”. The CanadianOxford Dictionary defines “harbour” as “to give shelter to (esp a criminal or wanted person).

Even the Black’s Law Dictionary meaningof “harbouring” offered by Mr. Pitblado includes: “the act of affording lodging, shelter, or refuge to a person” albeit referring tocriminals or illegal aliens. Perhaps Mr. Wheelie could also have been an “owner” on the day in question as it appears he may have beenin “possession” of the dog. This however, does not mean that the defendant wasn’t an owner at the time. The case of R. v. Huggins 2007ONCJ 306 , [2007] O.J. No. 2693 (Madigan, J.P.) referred to by Mr.

Pitblado actually supports this view that there can be morethan one “owner” of a dog when the court accepted the due diligence defence offered by the owner of the dog in the traditional sense(Mr. Huggins) and also would have found guilty the person who possessed the dog at the time of the incident (Mr. Huggins’ mother)(see paragraphs 34, 38 and 83) . Although the charge was dismissed as against Mr. Huggins, the court ordered the dog to bedestroyed. On appeal, this order was set aside by Justice M. Hogan, however, the Ontario Court of Appeal in a unanimous decision of

Justice R.A. Blair, allowed the appeal and upheld the order to destroy the dog. (R. v.

Huggins, 2010 ONCA 746 As part of the actus reus, the prosecution must also prove beyond a reasonable doubt that the cat was a “domestic animal”.Domestic animal is not defined in the Dog Owner’s Liability Act, although it is defined in Provincial Parks and Conservation Reserves Act, 2006Loi de 2006 sur les parcs provinciaux et les réserves de conservation ONTARIO REGULATION 347/07 PROVINCIAL PARKS: GENERAL PROVISIONS domestic animal” means a horse, a dog or any other animal that is kept under human control either by habit or training and lives inassociation with human beings; Fish and Wildlife Conservation Act, 1997 domestic animal” means an animal that belongs to a species that is not wild by nature; The words of

an Act are to be read in their entire context, in their grammatical and ordinary sense, and harmoniously with the schemeof the Act, the object of the Act, and the intention of the legislature: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 , [2002] 2 S.C.R. 559, at paras. 26 and 27, citing Elmer A. Driedger, The Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983)at p. 87. Within that framework, the ordinary meaning of legislation is “the natural meaning which appears when the provision is simplyread through”: York Condominium Corp. No. 382 v. Jay-M Holdings Ltd. 2007 ONCA 49 , (2007), 84 O.R. (3d) 414 (C.A.), atparas. 11-13. In addition,

Section 10 of the

Interpretation Act, R.S.O. 1990, c. 1-11 provides that every Act shall be deemed to be remedial and shall accordinglyreceive such fair, large and liberal construction and

interpretation as will best ensure the attainment of the object of the Act according toits true intent, meaning and spirit. The Dog Owners’ Liability Act applies to the owners of all breeds of dogs in Ontario and generally deals with the matters ofresponsible dog ownership, including civil liability of owners for dogs that bite or attack people or domestic animals. Mr. Pitblado has offered the definition of “domestic animal” as found in the 8th edition of Black Law’s dictionary as: an animal that is customarilydevoted to the service of humankind at the time and in the place where it is helped.

There is no definition of “domestic animal” inWebster’s Dictionary, although domesticated animal would be a “tamed wild animal bred for human use”. The Canadian OxfordDictionary defines “domestic” as: (of animal) kept by or living with human beings. The Merriam-Oxford on line dictionary definition of“domestic animal” is: any of various animals, (as the horse or sheep) domesticated as to live and breed in a tame condition. This couldbe compared to a “wild animal”. The Canadian Oxford Dictionary defines: “wild” (of an animal or plant) in its original natural state;not domesticated or cultivated.

In the context of, and harmoniously with the scheme of, the Dog Owner’s Liability Act, namelyresponsible dog ownership, including civil liability of owners for dogs that bite or attack, I find that a domestic animal is one that is keptby or living with people. By way of example, a horse or cow is a domestic animal as it is kept by people, likely in a barn or stable. A foxor a cougar is a wild animal and would not be kept by people. If a dog attacked a horse or cow, one would expect that the Dog Owner’sLiability Act should apply. If a dog attacked a fox or cougar, one would expect that the Act would not apply.

A cat is a domestic animal as it would be kept by people. Many cats never go outside the home. Many other cats go in and outsidethe home. In either case, they are kept by people. In this particular case, I find that the cat that was killed was a domestic animal. Thiscat was known as Barn Mother to Mr. Buchan and his brother. Although there were no vet bills associated with this cat, the cat stayed inthe barn and would sometimes go out hunting for mice. She was fed on a regular basis along with the other cats in the barn, and was inthe barn for these daily feedings 8/10 times.

In this sense, she was kept by the Buchans as she was offered shelter and food. Sometimes,she would be seen on occasion out in the field. The cat would follow Mr. Buchan and his brother in the barn which suggests that she wassocialized to some extent with humans. Mr. Buchan was visibly upset when testifying about what happened to Barn Mother and said thatthe dog could be seen “leaping in the air with our pet in its mouth”. Barn Mother was being kept by Mr. Buchan’s brother, albeit in thebarn and not in the home as many cats would be.

Even cats that live in a home often go outside and catch mice and may also not be takento a vet. In all of these circumstances and based on the evidence, I find that this particular barn cat was a domestic animal. As a result, Iam satisfied beyond a reasonable doubt that Ms. Spence-Wilkins was the owner of Mac and that Mac attacked a domestic animal andthus the actus reus has been proven. DUE DILIGENCE I now turn to the due diligence defence. The onus is on the defendant to establish on a balance of probabilities that she took allreasonable steps in the circumstances to avoid the act.

It does not mean “superhuman efforts”. It must relate to the commission of theprohibited act, not a broader notion of acting reasonably. See R. v. Kurtzman (1991) (ON CA), 66 CCC (3d) 161(Ont. CA). The only step that the defendant took was to chain Max up outside. She was going to be away for approximately 3 hours andhad never had him chained up outside alone for 3 hours. It is surprising that the defendant would do this in light of her testimony that oneof the reasons she was taking care of Max was because she was concerned he was on the chain so much.

In addition, the defendant couldhave made arrangements for someone to check up on Max as a reasonable precaution. That would have been a relatively simple step totake if she intended to leave him outside chained up for 3 hours. An alternative reasonable precaution would have been to leave Maxinside the house. That would have clearly prevented him from biting or attacking a person or domestic animal. The only reasonableprecaution the defendant took was to chain him up. It is not uncommon for chains to break.

There is no evidence as to the type of chainthat was used, the condition it was in, to what it was fastened, how long it was. There is also no evidence as to how it was secured, orhow it was attached to Max. The only evidence was that the dog chain lock had been replaced. It would be speculative to conclude that itwas the lock that failed as there is simply no evidence as to how Max came to be running loose beside Mr. Wheelie’s pickup truck. It isnot necessary for me to make a finding as to how Max came to be loose running around, as I must only determine whether the

prosecution proved beyond a reasonable doubt the actus reus (that the dog attacked the cat) R. v. Prince Metal Products Ltd., [2011] O.J.No. 6450 (Ont. C.J.). Similarly, it is not a requirement that the defendant establish the cause of the event. On a charge of discharging a contaminant into theenvironment, the trial justice erred in holding he could not determine if the defendant took all reasonable care because there was noevidence explaining why a pipe failed. The issue is if the defendant took all reasonable steps to avoid a discharge not the particular waythe discharge occurred.

However, if a defendant can establish how an event occurred it may be able to narrow the range of preventativeaction that must be shown to establish due diligence: R. v. Petro-Canada (2003), (ON CA), 171 C.C.C. (3d) 354(Ont. C.A.). The fact that Max may have taken obedience training in 2008 is evidence of a broader notion of acting reasonably and not tothe specific precautions of preventing him from attacking. CONCLUSION In all of the circumstances, I am not satisfied that the defendant took sufficient reasonable precautions to prevent Max from attacking thedomestic animal, Barn Mother.

I therefore find the defendant guilty of the offence as charged.