On January 25, 1982, the appellant willfully and without lawful excuse shot and killed the respondent’s dog while it was in the appellant’s yard. At trial, he was convicted under section 401(a) of the Criminal Code of Canada and fined $100, or, in default of payment within 30 days, to 30 days’ imprisonment. Section 401(a) makes it an offence to “wilfully and without lawful excuse” kill a dog “kept for a lawful purpose.”
The appellant appealed, arguing that:
- The respondent did not keep the dog for a lawful purpose;
- The respondent failed to tether the dog as required by the Dog Act, 1976, which permits anyone to destroy a dog found killing, maiming, or worrying humans or livestock; and
- He shot the dog believing it threatened his sheep.
The key legal question was whether the appellant’s belief constituted a lawful excuse. Section 386(2) of the Criminal Code provides that no one is guilty if they acted with “legal justification or excuse” and “colour of right.” Evidence showed that the dog was not barking and did not chase the sheep while in the appellant’s yard.
The appellate court held that while there are circumstances in which a dog may be lawfully killed if attacking domestic animals, the dog in this case was not doing so. Accordingly, the conviction under section 401(a) was upheld, but the appellant was granted an absolute discharge.
BUTLER v. WHALEN