In June, 2011, a BC rancher shot and killed her neighbour's dog. She was later charged under Section 445(1) of the Criminal Code. At trial, the rancher claimed the dog had attacked her cattle and relied upon Section 11.1(2) of BC's Livestock Act (a person may kill a dog if the dog is running at large and attacking or viciously pursuing livestock) and Section 39 of the Criminal Code (protection of personal property, this section has since been rolled into section 35) as legal justifications for her actions. The Provincial Court judge rejected those defences and convicted her. The rancher appealed the conviction to the BC Supreme Court.
At trial, counsel agreed that the burden rested with the Crown to prove that the defence under Section 11.1(2) of the Livestock Act (the other defence was not pursued) did not apply. The trial judge identified the significant issue to be whether the dog that the rancher killed was "attacking or viciously pursuing livestock", and found that there was "no merit to the argument" that this was the case.
However, the appeal court found that the trial judge had misapprehended the evidence at trial. He had failed to consider a written statement of the rancher that had been tendered as evidence that included evidence that the dog had been "attacking or viciously pursuing" the cattle - there was evidence of biting and attacking. Instead, the trial judge found that there was no evidence on this point, which in the view of the appeal court constituted a misapprehension of evidence.
The appeal court also found that the trial judge had erred in his application of the law. On appeal, the rancher raised three defences: 1) the Livestock Act defence; 2) common law justification of defence of property; and, 3) defence of colour of right. Although the second two defences were not raised at trial, the Crown did not object to those defences being raised on appeal. The appeal court found that the matter must be sent back for a new trial in which the Court would consider evidence related to all three defences.
With respect to Section 11.1(2) of the Livestock Act in particular, the appeal court gave the following interpretation of the defence: "Rather, a fair and liberal construction, consistent with the common law, the overall object of the [Act], and the intention of the legislature is required. To my mind, s. 11.1(2) of the [Act] should [be] construed in the same manner as the common law as permitting any person to kill a dog when at the time of the act of killing, the dog: a. is running at large; and, b. is actually attacking or viciously pursuing livestock, or, if left running at large, would subject the livestock to a real and imminent danger that the attack or vicious pursuit would be renewed." The act of killing a dog would be prohibited once the need for protection of the livestock has ended.
Read the decision at: R. v. Robinson.