Transferred intent comes under consideration in pit bull assault decision

Law360 Canada (December 6, 2024, 10:30 AM EST) --

John L. Hill

The Manitoba Court of Appeal upheld convictions for a woman found guilty of assaulting two people with a weapon. The weapon was her pet bulldog (R. v. Park, 2024 MBCA 93).

Tannis Lyn Park, 55, had been sentenced in 2022 to 19 months in custody, followed by two years of probation. Her appeal focused on the trial judge’s misapprehension of the evidence in which Park was said to have ordered her American bulldog to attack only the first victim but not the second. She also argued that Provincial Court Judge Ryan Rolston erred in his application of transferred intent. She claimed the dog was out of control when it attacked the female victim, identified as Ms. Neufeld, and the earlier attack on the male victim, named Mr. Watt. These were thus separate events, Park claimed, and she should not be held responsible for her dog’s viciousness to either victim.

The evidence at trial was that Park had been temporarily living as a tenant with Watt at his home and that she had known Watt and Neufeld for several years. Neufeld was visiting. The biting incidents occurred after Park and Neufeld had been using cocaine in the bedroom of the house. Watt had throat cancer and could not speak. He was drinking while the women got high. Watt’s death before trial meant he could not corroborate either woman’s version of events.

Park had owned and trained her bulldog for six years. The dog was familiar with Watt and Neufeld. Watt was outside the bedroom where Park and Neufeld were using cocaine. According to Neufeld, there was loud music in the background. Watt became annoyed with the volume of the music and objected to the women using drugs. He signalled his discontent by gesturing and banging his hand on the table. Park responded by ordering the dog to attack Watt by saying, “sic ’em.” Park denied doing so.

According to Neufeld, the dog bit Watt’s forearm and ankle while Park held him down. Park prevented Neufeld from making a 911 call by pinning her to the door. The dog then attacked Neufeld, biting her and tearing off part of her lip.

Park was guilty of assault by ordering the attack on Watt, but the trial court rejected the Crown’s argument that the attack on Neufeld was Park’s negligence in being unable to control her dog. Assault is not a negligence-based offence. The Crown must prove intent.

Instead, the trial judge relied on the doctrine of transferred intent (R. v. Deakin, (1974) 16 C.C.C.(2d) 1 (Man. C.A.)), which posits that an accused can be guilty of assault upon the second person by using force against one person that also harms a second. Although “transferred intent” is rarely used, it applies in this situation.

The appeal court held that assault is a subjective mens rea offence, even with minimal intent (R. v. George, [1960] S.C.R. 871; R. v. Hominuk, 2019 MBCA 64). Courts have affirmed that the intent of assault also includes recklessness (Sansregret v. R., [1960] S.C.R. 871).

In deciding that even if Park had minimal intent to harm Watt, it was deliberate. The question remained if that intent could be transferred to satisfy the assault charge on Neufeld. The court proceeded to say that the doctrine of transferred intent has come under negative scrutiny from distinguished academics and jurists such as Stuart, Delisle and Lilles. The facts of this case are not as simple as where injury is caused by mistake or accident. The appeal court found that the trial judge erred in applying this doctrine. Instead, for different reasons, Park formed an intent to assault each victim separately. She used her canine weapon against Watt and performed a physical assault on Neufeld to stop her from calling 911.

The appeal court rejected Park’s claim that the trial judge did not correctly assess evidence supporting her testimony where she denied commanding her dog to attack the male victim. The appeal court found that Park’s evidence that the dog had a friendly demeanour and was familiar with Watt’s hand gestures supported the trial judge’s inference that the dog was not easily set off without prompting in highly stressful situations.

Park was aware of how her dog would react if the animal perceived harm to its owner. The dog’s reaction to Park’s struggle with Neufeld was entirely foreseeable. The use of the doctrine of transferred intent was an error in law.

Nonetheless, the appeal court refused to apply the curative proviso. The trial judge had refused to convict solely on negligence. The evidence supported that Park knew or was confident her dog would attack. Alternatively, she exhibited a high degree of recklessness. A conviction for assault with a weapon was inevitable. Whether intent was attributed to knowledge or recklessness, any difference in moral culpability would be negligible. In line with R. v. Sarrazin, 2011 SCC 54, a new trial is not in the public interest.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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