R. v. Gladue (V.P.), (2014) 585 A.R. 328 (PC)

• Judge: Rosborough, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: November 01, 2013
• Citations: (2014), 585 A.R. 328 (PC);2014 ABPC 45

R. v. Gladue (V.P.) (2014), 585 A.R. 328 (PC)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. MR.020

Her Majesty the Queen (Crown) v. Vernon Peter Gladue (accused)

(130256571P1; 2014 ABPC 45)

Indexed As: R. v. Gladue (V.P.)

Alberta Provincial Court

Rosborough, P.C.J.

February 21, 2014.

Summary:

The accused was charged with assaulting his wife (Criminal Code, s. 266), and killing his wife's dog (s. 455(1)(a)). The accused argued that he had a lawful excuse to kill the dog, and that he had acted out of necessity or self-defence.

The Alberta Provincial Court found the accused guilty.

Criminal Law - Topic 10.9

General principles - General and definitions - Elements of offence v. exceptions - Gladue was charged with an offence under s. 455(1)(a) of the Criminal Code, which provided that "Every one commits an offence who, wilfully and without lawful excuse, (a) kills ... dogs ... that are kept for a lawful purpose" - Section 455(1)(a) fell under Part XI of the Criminal Code - Gladue noted that at least one other offence under Part XI did not make reference to the term "lawful excuse" - Based on this, he argued that the absence of a lawful excuse was an essential element of the offence created by s. 455(1)(a), and that the Crown had to prove that absence beyond a reasonable doubt - The Alberta Provincial Court rejected this argument - Neither the presence nor absence of particular wording in a statutory enactment, ipso facto, transformed that wording into an element of a crime - By virtue of ss. 429(2) and/or 794(2), Parliament had unequivocally assigned to accused persons the burden of proving any "exception, exemption, proviso, excuse or qualification" for committing the offences found in Part XI - This included the burden of proving a "lawful excuse" for killing a dog - See paragraphs 10 to 21.

Criminal Law - Topic 203

General principles - Common law defences - Necessity - Gladue and Johnston were married - Johnston owned a small dog named Buttons - One evening, Johnston went to bed with Buttons sleeping at the foot of the bed - After becoming drunk, Gladue entered the bedroom and began pestering Johnston - He then tried to kiss Buttons - Buttons responded by nipping Gladue's upper lip, causing it to bleed - Gladue grabbed the dog, shoved her into the bed, threw her up against the door frame, shot at her with a BB gun, and squeezed her throat - Buttons' carcass was later found in a plastic bag in a ditch - Gladue was charged with killing a dog wilfully and without lawful excuse (Criminal Code, s. 455(1)(a)) - He raised the defence of necessity - The Alberta Provincial Court found Gladue guilty - The situation confronting Gladue did not constitute an "imminent risk" creating the need to avoid a "direct and immediate peril" - Gladue's acts were not involuntary; he had reasonable legal alternatives available to him other than injuring and/or killing Buttons - See paragraphs 119 to 123.

Criminal Law - Topic 221

General principles - Statutory defences or exceptions - Evidence and proof of - [See Criminal Law - Topic 10.9 and first Criminal Law - Topic 5229 ].

Criminal Law - Topic 230

General principles - Statutory defences or exceptions - Justification or excuse - [See Criminal Law - Topic 2366 ].

Criminal Law - Topic 239

General principles - Statutory defences or exceptions - Self-defence (incl. preventing assault) - Gladue and Johnston were married - Johnston owned a small dog named Buttons - One evening, Johnston went to bed with Buttons sleeping at the foot of the bed - After becoming drunk, Gladue entered the bedroom and began pestering Johnston - He then tried to kiss Buttons - Buttons responded by nipping Gladue's upper lip, causing it to bleed - Gladue grabbed the dog, shoved her into the bed, threw her up against the door frame, shot at her with a BB gun, and squeezed her throat - Buttons' carcass was later found in a plastic bag in a ditch - Gladue was charged with killing a dog wilfully and without lawful excuse (Criminal Code, s. 455(1)(a)) - He argued that he had acted in self-defence - The Alberta Provincial Court found Gladue guilty - 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 - See paragraphs 101 to 118.

Criminal Law - Topic 2366

Wilful acts respecting property - Killing or injuring animals - Defences - Lawful excuse - Gladue and Johnston were married - Johnston owned a small dog named Buttons - One evening, Johnston went to bed with Buttons sleeping at the foot of the bed - After becoming drunk, Gladue entered the bedroom and began pestering Johnston - He then tried to kiss Buttons - Buttons responded by nipping Gladue's upper lip, causing it to bleed - Gladue grabbed the dog, shoved her into the bed, threw her up against the door frame, shot at her with a BB gun, and squeezed her throat - Buttons' carcass was later found in a plastic bag in a ditch - Gladue was charged with killing a dog wilfully and without lawful excuse (Criminal Code, s. 455(1)(a)) - He argued that he had a lawful excuse - The Alberta Provincial Court found Gladue guilty - Gladue lost his temper, which loss was fuelled by alcohol consumption - He did not merely take steps to disengage Buttons and prevent further bites - Rather, he took out his anger by injuring Buttons, which led to her death - Gladue's acts did not constitute a lawful excuse - See paragraphs 124 and 125.

Criminal Law - Topic 2366

Wilful acts respecting property - Killing or injuring animals - Defences - Lawful excuse - [See Criminal Law - Topic 10.9 and first Criminal Law - Topic 5229 ].

Criminal Law - Topic 5229

Evidence and witnesses - Burden of proof - Proof of exception, exemption, excuse or qualification - Gladue was charged with an offence under s. 455(1)(a) of the Criminal Code, which provided that "Every one commits an offence who, wilfully and without lawful excuse, (a) kills ... dogs ... that are kept for a lawful purpose" - He argued that he had a lawful excuse - Under ss. 429(2) and/or 794(2), the burden of proving any "exception, exemption, proviso, excuse or qualification" was on the accused person - Gladue argued that these provisions should be interpreted so as to impose only an evidentiary burden of proof (i.e., he should only have to raise a reasonable doubt respecting the existence of a lawful excuse), rather than proof on a balance of probabilities - The Alberta Provincial Court reviewed the conflicting authorities on this issue and concluded that Gladue beared the burden of proving on a balance of probabilities that he had a lawful excuse to kill the dog - See paragraphs 33 to 71.

Criminal Law - Topic 5229

Evidence and witnesses - Burden of proof - Proof of exception, exemption, excuse or qualification - [See Criminal Law - Topic 10.9 ].

Cases Noticed:

R. v. Whatmore (T.L.) (2011), 526 A.R. 124; 2011 ABPC 320, refd to. [para. 12].

R. v. Schwartz, [1988] 2 S.C.R. 443; 88 N.R. 90; 56 Man.R.(2d) 92, refd to. [para. 12].

R. v. Dhillon (G.S.) (2006), 394 A.R. 269; 2006 ABQB 109, refd to. [para. 13].

R. v. G.B. et al. (No. 2), [1990] 2 S.C.R. 30; 111 N.R. 31; 86 Sask.R. 111, refd to. [para. 14].

R. v. Allard (R.J.) (2013), 578 A.R. 348; 2013 ABPC 353, refd to. [para. 14].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218; 118 C.C.C.(3d) 1, refd to. [para. 31].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 31].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 32].

R. v. J.H.S. (2008), 375 N.R. 67; 265 N.S.R.(2d) 203; 848 A.P.R. 203; 2008 SCC 30, refd to. [para. 32].

R. v. Gray (B.F.) (2012), 522 A.R. 374; 544 A.P.R. 374; 2012 ABCA 51, refd to. [para. 32].

R. v. Plante (J.D.) (2013), 559 A.R. 345; 2013 ABQB 222, not folld. [para. 34].

R. v. Gamey (D.) et al. (1993), 85 Man.R.(2d) 41; 41 W.A.C. 41; 80 C.C.C.(3d) 117 (C.A.), refd to. [para. 36].

R. v. Pena (M.J.) et al., [1997] B.C.T.C. Uned. 874; 45 C.R.R.(2d) 134 (S.C.), refd to. [para. 36].

R. v. Murphy (M.T.) (2010), 288 N.S.R.(2d) 26; 914 A.P.R. 26; 2010 NSPC 4, refd to. [para. 36].

R. v. Hajek, 2009 ONCJ 75, refd to. [para. 36].

R. v. Watson (P.F.) (1999), 176 Nfld. & P.E.I.R. 263; 540 A.P.R. 263; 137 C.C.C.(3d) 422 (Nfld. C.A.), refd to. [para. 36].

S.E.M., Re (1988), 88 A.R. 346 (C.A.), refd to. [para. 48].

R. v. Bull (T.F.) (2010), 491 A.R. 335; 2010 ABPC 68, refd to. [para. 49].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 52].

R. v. Lewko (G.L.) (2002), 227 Sask.R. 77; 287 W.A.C. 77; 2002 SKCA 121, refd to. [para. 54].

R. v. Lee's Poultry Ltd. (1985), 7 O.A.C. 100; 17 C.C.C.(3d) 539 (C.A.), refd to. [para. 55].

R. v. Thompson (D.D.) (1992), 131 A.R. 317; 25 W.A.C. 317 (C.A.), refd to. [para. 56].

R. v. Appleby, [1972] S.C.R. 303, refd to. [para. 69].

R. v. Whyte, [1988] 2 S.C.R. 3; 86 N.R. 328, refd to. [para. 69].

R. v. Williams (A.) (2008), 234 O.A.C. 320; 2008 ONCA 173, refd to. [para. 69].

R. v. Lunn (A.P.) (2012), 317 N.S.R.(2d) 60; 1003 A.P.R. 60; 2012 NSSC 190, refd to. [para. 70].

R. v. Butler (C.), [2013] O.T.C. Uned. 2403; 2013 ONSC 2403, refd to. [para. 70].

R. v. Pye, [1993] A.J. No. 149 (Q.B.), folld. [para. 70].

R. v. Spracklin (V.E.) (2013), 551 A.R. 323; 2013 ABPC 55, refd to. [para. 70].

R. v. White, [1947] S.C.R. 268, refd to. [para. 73].

R. v. Maygard (J.D.) (2013), 553 A.R. 266; 583 W.A.C. 266; 2013 ABCA 214, refd to. [para. 73].

R. v. Potts (J.) (2012), 537 A.R. 159; 2012 ABPC 78, refd to. [para. 97].

R. v. Hughes (1983), 51 N.B.R.(2d) 181; 134 A.P.R. 181 (T.D.), refd to. [para. 99].

R. v. Barr (1982), 49 A.R. 342; 1 C.C.C.(3d) 47 (Prov. Ct.), refd to. [para. 103].

R. v. Greeley (G.) (2001), 203 Nfld. & P.E.I.R. 10; 610 A.P.R. 10 (N.L. Prov. Ct.), refd to. [para. 103].

R. v. Frank (M.G.) (2012), 314 B.C.A.C. 229; 534 W.A.C. 229; 2012 BCCA 2, refd to. [para. 104].

R. v. McLeod (1993), 84 C.C.C.(3d) 336 (Yuk. C.A.), refd to. [para. 104].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 105].

R. v. Broklebank (M.) (2000), 336 A.R. 183 (Prov. Ct.), refd to. [para. 109].

R. v. Etherington, [1963] 2 C.C.C. 230 (Ont. Mag. Ct.), refd to. [para. 109].

R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1, refd to. [para. 119].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 445(1)(a) [para. 4]; sect. 429(2) [para. 17]; sect. 794(2) [para. 18].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 52].

Counsel:

K. Stewart, for the Crown;

S. Smith, for the accused.

This matter was heard on November 1, 2013, before Rosborough, P.C.J., of the Alberta Provincial Court, who delivered the following reasons for judgment at Camrose, Alberta, on February 21, 2014.