Is it leagl?-not HTA related

[turbodish]

While the shooter may have the right to discharge a firearm on his property legally, depending on the local laws, the courts would take a very dim view of someone firing a gun when there are children in close proximity. A load of buckshot can travel 50' in a very short time. That alone sounds like careless dicharge of a firearm.
Definitely seek a lawyers advice.

It would be careless or dangerous use of a firearm only if it was pointed at the kid or if the kid was in any sort of danger of being hit by stray pellets. The OP does not say where the kid was in relation to the gun, the dog, and the line of fire. Simply being "close" is not sufficient to lay charges. Psychological "harm" is also not sufficient unless the psychological harm comes as a direct result of having a gun aimed at or shot towards the kid.

The reason I asked what kind of dog is to find what possible avenues of defence might be open to the shooter. Even if the shooter doesn't have livestock or poultry, he can still fall back on a claim of defending himself against what he thought was a dog was about to attack him. Shooting a poodle because of claimed fear to life and limb wouldn't go far, but a Rottie is another story, especially at night. It all depends on how the shooter describes the incident to the police, and whether the police believe the story to be credible or not.

 

[Rob MacLennan]

He can claim defence is he was already outside, prior to the dog arriving. Being in his house and exiting, with gun in hand, is an offensive rather than defencive act.

Shooting a dog, because you feared he'd bust down your door, is a bit far fetched. I think you would agree, no?

To the OP, that Cape Breton case is the same one that I found. It's no real help.

*EDIT* This appeal from Saskatchewan might help:

http://www.canlii.org/eliisa/highli...doc/1999/1999canlii12570/1999canlii12570.html

 

[eastcoast_gsx]

No livestock. The old man lives in a house, not on a farm. The female dog is pretty big (80 lbs ish) and menacing looking (half Rottweiler, halfmongrel). When she is home, she is a defensive dog that does and will bark at any tresspasser who comes, including us when we visit. However, a quick walk over to her and pet her, and she remains quiet for the rest of out visit. She is about a yr old, and has never bitten or attacked anyone, although she has barked at many I am certain.

The old man was inside his home, no livestock outside, around 8 pm. Dark outside. It's not like the dog approached him while he was gardening and he was afraid. he was safe in his home, so even if he wants to use the excuse that he was defending himself, he could have just stayed behind locked doors. He specifically chose to come outside with a loaded shotgun, with no warning, talking or yelling. The dog was just sniffing around his yard. The kids said she didn't bark, growl or anything. He just raised the gun and fired. He had to have heard them calling her,as they were just in his side yard. My neice and nephew were so close, that they said their ears rang for hrs. The old man didn't even give them an opportunity to leash the dog, or call her away.

The OPP apparently came tot alk tot he old man. I have no idea what was said or if he is being charged-yet. The OPP didn't come to my brother's cuz he told the OPP he wouldn't be there-he'd be rushing the dog an hr away to the nearest animal clinich that was 24 hrs.

Today hopefully I will find out more. In the next few days, I will also be calling the OPP and SPCA and the Brantford Expositor and Simcoe paper as well.

History is that the hosue my bro bought was a repo from the bank. COmplete shack with squatters iving in it with no water or hydro etc. It took 1.5 yrs to make it a home (my bro builds homes for a living). Yes he got a very good price on it, but threw tons of money and thousands of hrs of his time at it too. Then when my bro wanted to buy his 11 yr old a small CRF50 dirtbike he asked the neighbour if it'd be alright to ride it on the perimiter of the fields that the old man owns (leases out to local farmers) around their place. The old man abrubptly said "hell no!" in their conversation, and that was that. Other than that conversation, the man hasn't even had one conversation with my brother in 1.5 yrs.

Coles notes: The old guy (maybe living there forever) likely didn't like the previous deadbeat neighbor, the new young guy moves in, starts talking about dirt bikes, he is not happy with this new guy either... and that barking dog... "I've had enough"

 

[rafiki911]

While not in Ontario, something like this is what I am looking for as a precendent:
http://www.courts.ns.ca/decisions_recent/documents/2010nspc4.pdf

It is federal so that applies even in Ontario. Can't believe there are other cases like this. People are sick.

 

[rafiki911]

Coles notes: The old guy (maybe living there forever) likely didn't like the previous deadbeat neighbor, the new young guy moves in, starts talking about dirt bikes, he is not happy with this new guy either... and that barking dog... "I've had enough"

That may be the case but it still isn't right.

 

[turbodish]

He can claim defence is he was already outside, prior to the dog arriving. Being in his house and exiting, with gun in hand, is an offensive rather than defencive act.

Shooting a dog, because you feared he'd bust down your door, is a bit far fetched. I think you would agree, no?

Like I said, it all depends on what he tells the police, and if they believe his narrative over the neighbour's narrative.

 

[rafiki911]

Like I said, it all depends on what he tells the police, and if they believe his narrative over the neighbour's narrative.

It doesn't matter what he says to the police. If he committed a criminal offence and the owner of the dog wants to press charges the Police have to follow through. They can advise against it but ultimately it is the victims call. Cops are not judges.

 

[Rob MacLennan]

It doesn't matter what he says to the police. If he committed a criminal offence and the owner of the dog wants to press charges the Police have to follow through. They can advise against it but ultimately it is the victims call. Cops are not judges.

Sorry, but you've been watching too much "Law and Order." In our system it is generally The Crown that pursues charges. What a private citizen says may be given weight, but it is not a determining factor. The police don't "have" to do anything.

 

[250R-ICE]

At very least I would ask the Crown to press charges. He risked the safety of those kids. That would be my biggest concern. The Dog would my second concern.

 

[turbodish]

It doesn't matter what he says to the police. If he committed a criminal offence and the owner of the dog wants to press charges the Police have to follow through. They can advise against it but ultimately it is the victims call. Cops are not judges.

Oh but it does matter what he says to police, and what he says matters if they believe him. Depending on circumstances, shooting a dog or even a person is not always a crime. A bad outcome does not always mean that a criminal act has occurred. Cops are not judges, but cops decide on whether to lay charges or not based on the outcome of their investigation.

We don't have the shooter's side of things presented here, but IF the shooter can make a credible claim of self-defence, then there may be no crime and the police are not necessarily obligated to lay charges. The dog owner's option at that point is to go to a JP and initiate a private prosecution. http://www.attorneygeneral.jus.gov.on.ca/english/private_prosecution.asp

 

[infernobuster]

So what condition is the dog in currently? Did they have to put him down due to his injuries?

I would await a response from the police first, before attempting other avenues.
Animanl activists are definately a good route to turn too ..

 

[mike100]

It would be careless or dangerous use of a firearm only if it was pointed at the kid or if the kid was in any sort of danger of being hit by stray pellets. The OP does not say where the kid was in relation to the gun, the dog, and the line of fire. Simply being "close" is not sufficient to lay charges. Psychological "harm" is also not sufficient unless the psychological harm comes as a direct result of having a gun aimed at or shot towards the kid.

The reason I asked what kind of dog is to find what possible avenues of defence might be open to the shooter. Even if the shooter doesn't have livestock or poultry, he can still fall back on a claim of defending himself against what he thought was a dog was about to attack him. Shooting a poodle because of claimed fear to life and limb wouldn't go far, but a Rottie is another story, especially at night. It all depends on how the shooter describes the incident to the police, and whether the police believe the story to be credible or not.

Sure, if he can prove that the kids were behind the muzzle and in no danger then it might not be careless. But firing at an animal that is not attacking you with kids very close calling out to the dog sounds pretty careless to me. Since the kids ears were ringing for hours it sounds like they were very close. Be definatly did not take reasonable precautions for the safety of those kids. You just do not fire a gun when there are kids in the area!

 

[turbodish]

Sure, if he can prove that the kids were behind the muzzle and in no danger then it might not be careless. But firing at an animal that is not attacking you with kids very close calling out to the dog sounds pretty careless to me. Since the kids ears were ringing for hours it sounds like they were very close. Be definatly did not take reasonable precautions for the safety of those kids. You just do not fire a gun when there are kids in the area!

As long as the shooter took care to ensure the kids were not in the direct line of fire or in background of the shot, you're going to have a tough time proving criminally careless or dangerous use of a firearm.

Their mere presence is not sufficient. Emotional harm at witnessing the shooting is not enough either. See paragraphs 67 onwards at http://www.canlii.org/en/ns/nspc/doc/2010/2010nspc4/2010nspc4.pdf .

 

[Rob MacLennan]

As long as the shooter took care to ensure the kids were not in the direct line of fire or in background of the shot, you're going to have a tough time proving criminally careless or dangerous use of a firearm.

Their mere presence is not sufficient. Emotional harm at witnessing the shooting is not enough either. See paragraphs 67 onwards at http://www.canlii.org/en/ns/nspc/doc/2010/2010nspc4/2010nspc4.pdf .

And the animal simply being on his property is not enough to justify killing it. See: http://www.canlii.org/eliisa/highli...doc/1999/1999canlii12570/1999canlii12570.html

 

[turbodish]

And the animal simply being on his property is not enough to justify killing it. See: http://www.canlii.org/eliisa/highli...doc/1999/1999canlii12570/1999canlii12570.html

Granted, but that is a different issue and different potential charge from the arguably more serious careless or dangerous use of a firearms issue.

 

[rafiki911]

Sorry, but you've been watching too much "Law and Order." In our system it is generally The Crown that pursues charges. What a private citizen says may be given weight, but it is not a determining factor. The police don't "have" to do anything.

Hey Rob, this is not from watching tv. It is from working loss prevention in the past. I would arrest someone for theft under $5000. Police would come and ask us if we wanted to pursue with charges or for them to just give them a warning or a scare.

 

[Rob MacLennan]

Granted, but that is a different issue and different potential charge from the arguably more serious careless or dangerous use of a firearms issue.

Which is what we're looking at here: CC-445.

Hey Rob, this is not from watching tv. It is from working loss prevention in the past. I would arrest someone for theft under $5000. Police would come and ask us if we wanted to pursue with charges or for them to just give them a warning or a scare.

Right, so they were giving themselves a way out of having to follow up. Believe me; it wasn't for YOUR benefit

 

[Ritchard]

Hey Rob, this is not from watching tv. It is from working loss prevention in the past. I would arrest someone for theft under $5000. Police would come and ask us if we wanted to pursue with charges or for them to just give them a warning or a scare.

yeah, that's rather a different scenario.

This geezer is in the wrong, and should be charged at least with careless discharge.

 

[rafiki911]

Oh but it does matter what he says to police, and what he says matters if they believe him. Depending on circumstances, shooting a dog or even a person is not always a crime. A bad outcome does not always mean that a criminal act has occurred. Cops are not judges, but cops decide on whether to lay charges or not based on the outcome of their investigation.

We don't have the shooter's side of things presented here, but IF the shooter can make a credible claim of self-defence, then there may be no crime and the police are not necessarily obligated to lay charges. The dog owner's option at that point is to go to a JP and initiate a private prosecution. http://www.attorneygeneral.jus.gov.on.ca/english/private_prosecution.asp

According to Section 445 of the Criminal Code of Canada it is. The man was in his home and came out to shoot the dog. He went out of his way to shoot the dog.

Injuring or endangering other animals
445. Every one who wilfully and without lawful excuse
(a) kills, maims, wounds, poisons or injures​

dogs, birds or animals that
are not cattle and are kept for a lawful purpose, or
(b) places poison in such a position that it may easily be consumed by
dogs, birds or animals that are not cattle and are kept for a lawful
purpose,​

is guilty of an offence punishable on summary conviction.

 

[turbodish]

According to Section 445 of the Criminal Code of Canada it is. The man was in his home and came out to shoot the dog. He went out of his way to shoot the dog.

So we are hearing here. I'm not making any judgment as to who might be right or who might be wrong in their stories, but what the shooter says to the police may be quite different from what we are hearing here.

The law you just quoted starts with:

445. Every one who wilfully and without lawful excuse​

The "and without lawful excuse" part gives the shooter some wiggle room to work with. That's why I said that it all depends on whose narrative the police believe after they complete their investigation.