Ontario man cleared of killing dog with tape and choke chain

Ontario’s t op court has cleared a Windsor man of the criminal charge of wilfully killing a dog, more than five years after he taped its muzzle shut with electrical tape and left it tied it to a tree with a choke chain, causing the male German shepherd to panic and die by strangulation.

John MacKenzie, who was 56 when he was tried in March 2014, was looking after the dog for a friend who was serving a jail sentence. MacKenzie himself also had a female Weimaraner in the home he shared with his mother in Belle River, Ont., on Lake St. Clair near Windsor.

The boarding of the unnamed German shepherd was not going well. It had bitten MacKenzie on the hand one day, and so the next morning, when he needed to bring it inside because it would not stop barking, MacKenzie told investigators he taped the dog’s muzzle shut. But even that was not enough, so he chained it to the tree and left it alone.

Two hours later, it was dead. When a support worker for MacKenzie’s mother arrived, she found the dog on the ground, strangled by the choke chain, so tight “it was disgusting,” the worker testified.

In fact, according to a veterinarian’s examination, the chain was so tight it had caused petechial hemorrhaging, the little broken blood vessels that indicate strangulation. It had also left indentations in the skin that matched the pattern of the choke chain.

The trial judge accepted that the tape was a contributing cause of death, and that it would have caused distress as the dog tried to get it off, which could have increased the danger of choking on the chain.

It was unlikely, the veterinarian thought, that the dog charged at something, thereby choking itself accidentally on the chain, or that it had a heart attack. As she put it, choke chains are “intended to get a dog’s attention,” and a quick run after a squirrel that causes the chain to jerk the dog back would not likely have any lasting impact. She also said that a heart attack would not explain the petechia and bruising.

And so the trial judge found that MacKenzie not only wilfully caused unnecessary pain and suffering to the German shepherd, but also that he killed it. The judge accepted that MacKenzie knew the dog would struggle because of the electrical tape, that he would probably harm itself and ultimately die, and that he was reckless about whether this actually occurred.

Judge Gregory Campbell, at trial, called MacKenzie’s behaviour “wanton and callous,” and said that, although there was no evidence he knew the dog’s struggle would be fatal, he “should have been able to foresee that consequence.”

He was sentenced to four months in jail, followed by two years probation and a 10-year ban on owning a pet or even living in a home with one. He only served four hours, however, before he was freed on bail pending ap- peal in a lower court, which failed.

This second appeal, however, with the same lawyer, Frank Miller, succeeded in overturning the more serious charge of wilfully killing the dog. The conviction for causing unnecessary harm was upheld.

Three judges of the Ontario Court of Appeal agreed with MacKenzie’s position that it was speculative and unsupported by evidence for the trial judge to conclude he knew taping the dog’s muzzle would cause harm and eventually death.

“In these circumstances, it would be unreasonable to infer that (MacKenzie) knew that the dog would likely strangle himself to death if left unattended with tape around his muzzle while tethered to a tree wearing a choke chain,” wrote Justice Janice Simmons on behalf of two concurring colleagues.

MacKenzie has a l ong criminal record with 29 convictions over four decades, but none for animal abuse, the Windsor Star reported after his conviction. At the time of the dog’s death, he was on probation for assault.

As his l awyer memorably put it at the time of his conviction: “Mr. MacKenzie is not a person who runs around hurting dogs. Mr. MacKenzie left a dog on a choke chain and the dog strangled itself ... It’s not like microwaving a cat.”

MacKenzie himself addressed the trial judge and apologized. “I’m sorry what happened to the dog,” he said. “It was an accident ... I feel bad.”