R v Smith, 2021 NLSC 61 – Crown Appeal on Sentencing

This is a Crown appeal on sentencing stemming from a 2019 judgment. Details of the judgment can be found on our database here

The accused was convicted of allowing her two dogs, Luna and Keiko, to cause a hazard and of failing to keep the dogs safely tethered when she had let them off leash in an enclosed public tennis court and they escaped, which led to the mauling and killing of a cat. Although the dogs had initially been seized after the incident, they were returned to the accused without conditions. The accused’s adult daughter assumed care of Keiko, leaving Luna and two other dogs who were not involved in the incident in the care of the accused.

At sentencing, the defence called evidence from the accused, her daughter and a certified dog trainer whose opinion was qualified through testimony of her qualifications as expert evidence in the field of dog training. As a result, along with mitigating factors such as the accused having her backyard enclosed, not permitting Luna off leash at all outside that enclosure and working on double leash and training with the trainer, the sentencing judge allowed the accused to keep Luna but under very strict conditions.

The accused was prohibited from having children under 16 reside with her and from acquiring any more animals while Luna remained in her care. The judge allowed Keiko to remain with the accused’s daughter under the same strict conditions and with the caveat that Keiko was not to be returned to the accused but surrendered to the SPCA if the daughter could no longer provide care.

The Crown appealed this decision on the basis that the sentencing judge did not have jurisdiction to allow Keiko to remain with the accused’s daughter because the daughter had not been convicted of anything. Therefore the conditions of Keiko’s ownership are unenforceable and as such the only option is to order that Keiko be surrendered to the SPCA.

The Court determined that although the decision to leave Keiko in the care of the accused’s daughter was not part of the accused’s sentencing, the order that the dog not be returned to Crystal Smith was. Further, it is a Provincial Court judge who determines in the first instance whether the animal may remain with the owner and on what conditions, therefore it falls within the sentencing judge’s jurisdiction. The appeal was dismissed.