R v MacKenzie 2014 ONCJ; 2015 ONCJ

Sentence and appeal.

This was a sentencing hearing following on from a guilty finding under ss. 445 (a) and 445.1 (a) Criminal Code.

The accused caused the animal unnecessary pain and suffering by strangulation. The accused had been caring for a friend’s dog and applied tape to the dog’s muzzle while the dog had a choker on its neck (breathlessness). The dog was tethered to a tree with a leash and the accused alleges he then went inside and fell asleep for a couple of hours. Ultimately, the animal was killed by strangulation. The accused carried out his actions with indifference for the foreseeable consequences. These actions followed by inaction were somewhat aggravating factors.

In mitigation, the court considered that the accused was forthright and cooperative when the police and Humane Society arrived. Yet the accused’s acts were deliberate, reckless, and found to require denunciation and deterrence. The accused’s actions and inaction were found to have a degree of moral blameworthiness and had a duty to care for the dog.

The accused’s long record of offences which included violence was considered while determining the appropriate duration for the period of incarceration. The accused being on probation at the time of the occurrence was also considered.

The court ordered the accused to a period of four months in custody followed by two years’ probation. The accused was given a ten-year prohibition order pursuant to section 447.1 Criminal Code. A victim fine surcharge in the fixed sum of $100 was also ordered.

The accused appealed the sentence.

The court reviewed the transcript of evidence and the trial judge’s reasons. Concerning ground one, the court found that the trial judge did not err when finding the accused’s conduct to be wilful. Regarding ground two, the court held that there was no evidence to support the contrary of the appellant failing to exercise reasonable care and supervision of the dog. The court affirmed that these findings were deemed to have been wilful.

The court dismissed the appeal as against conviction on both counts. Further, the court noted that it is not this court’s duty to retry the case and substitute its own opinion for that of the trial judge.