Mr Gladue was charged that he unlawfully assaulted Ms. Johnston, contrary to Section 226 o the Criminal Code. He was also charged with wilfully and without lawful excuse killing a dog that was kept for a lawful purpose, contrary to Section 445(1)(a) of the Criminal Code. Mr. Gladue submits that he did kill his wife’s dog, however that he had a lawful excuse to kill the dog (Buttons) because he was acting out of necessity or in self defence.
Gladue stated that he had been bitten by Johnston’s dog and so he struck the dogs head on the bed, choked it (twice), threw it across the room, shot BB pellets at it and tried to strike it with his pellet gun..
This judgement considered the issue of “burden of proof” in the context of the term lawful excuse in Section 445(1)(a) of the Criminal Code. It also considers whether a person can rely upon the Criminal Code’s defence of self-defence in response to the actions of an animal.
The Court pointed out that it was incumbent upon the prosecution to prove the essential elements of both Counts 1 and 2 beyond a reasonable doubt. S. 445(1)(a) makes reference to the term ‘lawful excuse’. The defence submitted that the absence of a lawful excuse is an essential element of the crime created by s.445(1)(a) and that the prosecution must prove that absence beyond a reasonable doubt.
However, going through case law and relevant sections in the Criminal Code, the Court concluded that whether or not the statutory provision creating the offence included a specific exception, exemption, proviso, excuse or qualification, the burden of proving any such exception, exemption, proviso, excuse or qualification remained with the defendant. Therefore, the presence of the term “lawful excuse” in s.445(1)(a) (or its absence from other offences to be found within Part XI ) does not signal any Parliamentary intention to make disproof of a lawful excuse an element of the crime created by s.445(1)(a). Concluding that the absence of a lawful excuse is not here an essential element of the crime created by s.445(1)(a).
The Crown had to prove beyond a reasonable doubt that Gladue intended to cause, or was reckless or wilfully blind to whether he caused death, maiming or injury to the dog that he killed. The Court found in this case that the prosecution had proven beyond a reasonable doubt that Gladue intended to cause injury to Buttons by his acts. In the alternative, he was aware of a risk of causing injury to the dog and was reckless as to whether those acts would bring about that injury. His acts both injured and ultimately brought about the death of Johnston’s dog.
In regard to Gladue’s defence of self-defence, the Court concluded that the self-defence provisions of the Criminal Code were designed to regulate conduct between human beings; not between human beings and animals or inanimate objects. Animals are considered to be ‘property’ under the provisions of the Criminal Code. Paragraph 445(1)(a) is contained within the Criminal Code, Part XI – Wilful and Forbidden Acts in Respect of Certain Property (emphasis added). While, as a form of property, they are accorded special protections, this does not make applicable s.37 C.C., as was argued by Gladue.
The court went on to say that the prosecution had proven beyond a reasonable doubt that Glade did not act out of necessity when he reacted to the dog’s bite and that there was no lawful excuse sufficient to meet the burden of proof that Glade had a lawful excuse to react the way he did.
In conclusion, the Court found Gladue guilty of both Counts 1 and 2.
Source: Case Law