The owner of two vicious dogs that mauled a little boy and his teenaged babysitter in Wallaceburg four years ago is heading back to trial after Ontario’s highest court overturned her criminal negligence acquittals.
The owner of two vicious dogs that mauled a little boy and his teenaged babysitter in Wallaceburg four years ago is heading back to trial after Ontario’s highest court overturned her criminal negligence acquittals.
Central to sending Tiffany Houle, 39, back to the Superior Court of Justice was a judge’s error not to consider as part of the Crown’s case three prior incidents involving the two American bulldogs attacking people and other pets within five months before the boy was hurt.
Houle is charged with two counts of criminal negligence causing bodily harm. The Ontario Court of Appeal, in a decision published Wednesday, said Justice Joseph Donohue should have allowed the evidence.
The case concerned what happened in Jaycee Park in Wallaceburg on Feb. 5, 2018, where two children and their babysitter were tobogganing.
The two dogs had escaped their property, ran across the street into the park, attacking a three-year-old boy and his babysitter. The boy’s six-year-old brother was able to get to safety.
Another adult in the park tried to protect the boy by holding the child over his head, but the dogs kept coming. The three-year-old ended up with severe injuries to his face and legs. He was transferred to a Michigan hospital for treatment. A community fundraising campaign for him raised more than $26,000.
The babysitter suffered injuries to her hand. The dogs were euthanized.
Houle was charged on the basis that “she hadn’t taken sufficient care to ensure that the dogs would not escape, despite knowing the dogs were dangerous,” the appeal court said.
To prove its case, the Crown needed evidence that Houle knew the dogs were dangerous. The cornerstone of the prosecution was three previous serious attacks by the dogs.
The first was on Sept. 27, 2017, when the two dogs escaped and attacked a small dog being walked by its teenaged owner. The dog suffered a puncture wound and the owner injured her finger and scraped her stomach trying to hold her dog away from the attack.
Houle was spoken about the incident by police. She said the dogs got out by jumping the gate and breaking the latch.
On Oct. 20, 2017, a couple and their daughter were playing with their small dog in Jaycee Park. The two bulldogs got out again and attacked the little dog. One of the owners tried to lift the small dog and block the attacking animals. The small dog was badly injured and died three weeks later.
Houle told police her son had left the gate open. She was ticketed.
In December 2017, Houle’s next-door neighbor complained the dogs were coming into his yard from under the fence and baring their teeth.
Donohue rejected the Crown’s application to have the evidence admitted on March 16, 2020, and said he was reserving his reasons until later in the trial. At the next short date on Aug. 31, 2020, the Crown said it couldn’t prove its case without the prior incident evidence and asked Donohue to dismiss the charges.
Donohue’s reasons weren’t made available until Dec. 10, 2020. The Crown appealed the acquittal based on the judge’s analysis.
The appeal court disagreed with the Crown’s view that Donohue hadn’t provided sufficient reasons but said the judge erred in his application of the legal admissibility test and misapprehended the evidence.
The appeal court said there was “clear, direct and circumstantial evidence” that Houle had personal knowledge of the prior incidents. Donohue had rejected the evidence because there was no “prior discreditable conduct.”
“Whether prior conduct is discreditable has nothing to do with whether there is a link between the prior conduct and (Houle),” the appeal court said.
Even without the legal error, the court said it would have allowed the appeal simply on Donohue’s finding that “the proposed evidence is too distant in time or so irrelevant to any concern the accused ought to have had for the lives and safety of other persons. ”
The other incidents were within five months of the attack. The court noted Donohue had erred when he recorded 2019 as the year of the attack on the boy, not 2018 when it happened.
The court said Donohue “misapprehended the relevance of evidence of prior attacks on dogs” not just people. And it said it was not reasonable for the judge to have decided that prior conduct evidence “is neither relevant nor material to the issues before the court on this trial.”
“The relevance and materiality of the evidence is obvious,” the court said.
Along with ordering the new trial, the appeal court said the previous dog attacks will be admissible Crown evidence.