R. v. Houle, 2022 ONCA 325

This is a Crown appeal from the respondent’s acquittals on two counts of criminal negligence causing bodily harm, contrary to section 221 of the Criminal Code, R.S.C. 1985, c. C-46. These charges stemmed from an incident in which the respondent’s dogs attacked a toddler and his teenage babysitter, injuring the child severely. The Crown’s appeal is solely focused on the trial judge’s decision to exclude evidence of previous incidents involving the dogs.

On February 5, 2018, two of the respondent’s dogs escaped from her property, crossed the street to the neighbourhood park, mauled a three-year-old boy, and attacked his teenage babysitter. An adult onlooker attempted to protect the three-year-old by holding him over his head, but the dogs continued to attack. The three-year-old suffered life-threatening injuries, while the babysitter suffered hand injuries. As a result of this incident, the respondent was charged with two counts of criminal negligence causing bodily harm on the grounds that she acted with wanton and reckless disregard for the lives and safety of others by failing to take adequate care to ensure that the dogs did not escape, despite knowing that the dogs were dangerous.

On September 27, 2017, the first of three incidents occurred. On that date, the respondent’s dogs escaped from her property and attacked a small dog while its teenage owner was walking it. The small dog received a puncture wound, and the owner received a finger injury and scrapes to her stomach while attempting to hold her dog during the attack. When the police inquired about the incident, the respondent admitted that the dogs had escaped by jumping the gate, claiming that the latch had broken. The second incident occurred on October 20, 2017, when a couple and their daughter were playing with their small dog in a nearby park when the respondent’s dogs attacked their small dog. After the father attempted to lift their small dog and block the respondent’s dogs with his body, the attack continued. The small dog suffered serious injuries, which contributed to its death three weeks later. When the police inquired about the incident, the respondent blamed her son for leaving the gate open. A charge was filed in accordance with the municipal Responsible Animal Ownership By-law. In the third incident, which occurred in December 2017, the respondent’s next-door neighbour complained to him that her dogs were escaping from under her fence and baring their teeth in his yard.

At trial, the Crown had intended to rely on these three incidents, that had occurred within the previous five months, to establish that the respondent had known that the dogs were dangerous and failed to exercise sufficient care with these incidents indicating that the attack was part of a pattern of conduct. The trial judge denied the Crown’s application to admit this prior incident evidence but did not give meaningful reasons, and the Crown had to concede that they could not prove its case without it and invited the judge to dismiss the charges.

The Crown appeals the charges’ dismissal, claiming that the trial judge erred in excluding the prior incident evidence by (1) failing to provide sufficient reasons for appellate review and (2) making legal errors in his analysis. The appeal judge was not satisfied that the trial judge’s reasons were insufficient, but allowed the second grounds of appeal because those reasons revealed that the trial judge had erred in law in applying the relevant admissibility test, and misapprehended material evidence. The appeal judge applied the Handy test to the prior incident evidence and was satisfied that it was sufficiently linked to the respondent and could stand as evidence against her, and ruled that the evidence would be admissible.

The appeal was allowed and a new trial was ordered.