Her Majesty the Queen - v. -, 2015 SKPC 178

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 178 Date: December 15, 2015 Ticket No.: 8044502 Location: Swift Current _____________________________________________________________________________ Between: Her Majesty the Queen - and - Nicolette Barber Appearing: Glenn Herman, Q.C. For the Crown Self-Represented For the Accused SENTENCING DECISION K. BAZIN , J [ 1 ] An oral sentencing decision was rendered on December 15 th 2015 with written reasons to follow. T hese are those reasons. [ 2 ] Ms. Barber owned a pit bull breed dog named Ace.

Unfortunately, Ace along with another dog got out of their home and ended up at the Martin’s farm. There they chased the cattle and when the Martins arrived Ace was still attacking a calf that had serious wounds inflicted on it. It is not disputed that the dog Ace had inflicted the injuries.

[3] The issue in this matter is not to determine whether Ace is a dangerous dog or not, as Ms. Barber pleaded guilty to the charge ofowning an animal that without provocation attacks a domestic animal, under s. 376(4) of The Municipalities Act. The penalties are thesame as when a dog is declared a dangerous animal under the declaration of dangerous animal proceedings under the Act. However, frommy reasons that follow, I would find that the dog Ace is a dangerous animal in any event. [4] The issue to be determined is whether or not the public can be protected from Ms.

Barber's dog Ace, either through conditions ofcare for the dog or by way of destruction of the dog. The Crown and Ms. Barber have taken the position that the dog Ace could becontrolled by implementing conditions as to his care, and a destruction order is not required. [5] The dog in question called Ace, is a Staffordshire terrier cross, which is often referred to as a pit bull breed. As set out in themany letters of support for Ace, the parties often refer to Ace as a pit bull breed, which is consistent with the pictures of Ace filed.

TheBarbers have had Ace for 3 years having obtained the dog from a shelter. [6] When dealing with the question of conduct of a dog, the opening comments by Justice Danyluik in R v Kwok, 2014 SKQB 397are good to keep in mind. "Dogs are said to be our faithful companions. Not always. Sometimes dogs revert to their inherent nature andact like dogs. They attack. They bite. They are, after all, dogs.

For some reason many humans are surprised by this.” CASE LAW [7] There is not a lot of case law that deals with the issue of whether a dog in Saskatchewan can be controlled by conditions of careor be destroyed, and the criteria that a court looks at in this determination. [8] There is more case law out of the province, but as a number of municipalities have bylaws for animal control, in addition toprovincial legislation there is a variance of laws that are being enforced when it comes to dog behavior and aggression. I reviewed thefollowing cases: [9] R.v Kwok, 2014 SKQB 397 .

This appeal had to do with identification of the dog, but the trial court had ordered that thedog be controlled by restrictions as to its care and not destroyed. The larger akita dog had attacked a smaller sheltie as both dogs werebeing walked by their owners. The sheltie later died from the attack. [10] Village of Elfrose v Woloshyn, 2000 SKQB 295 . This is an appeal of a decision to destroy a dog. The case is not overlylengthy, and being an appeal scant on factual details, but involves a dog biting a delivery person. The dog and the person hadencountered each other before, without incident.

The dog on this occasion bites the woman on the leg. The attack was totally unprovokedand on the evidence there is no explanation for it. I infer that there were no prior concerns about the dog, in light of the statement thatthere was no explanation for the attack. [11] R.v Woods, 2008 ONCJ 557 a decision of a Justice of the Peace ordering the destruction of a larger German shepard/labcross, referred to as a guard dog, after running across the street and biting a woman in the buttocks, who had been walking her dogs. Thesecond dog had care and control restrictions placed on it.

Both dogs had previous orders of care and control on them. [12] R.v Harmsworth, 2012 ABPC 346 This decision is a vicious dog attack and the dog, being a German shepard cross, was chained,but broke its leash. The dog tore a piece of flesh from the victim’s arm and suffered significantly from the attack. The case first dealswith whether or not the dog was a dangerous dog, and then an appropriate remedy.

The case canvasses a number of decisions mainlyfrom British Columbia where for the most part significant attacks have the dog declared dangerous but the dogs are not destroyedimmediately, but are put on what in effect is a probationary period.

In Harmsworth the dog was not destroyed but put on strictprofessional retraining, confinement controls, and monthly reviews. [13] In British Columbia, a number of the cases follow the case of R v Kucera, 2001 BCPC 360 , including the Albertadecision in Harmsworth, in an attempt to define criteria to assess dangerous dog applications in light of the fact as mentioned that when itcomes to animal control, there is provincial legislation as well as municipal legislation that varies from each jurisdiction. This variance isoutlined in Harmsworth paragraph 41,

[41] As there is no definition for dangerous dog in the Act , the sources noted above were resorted to. The

definitions include words such as perilous, hazardous, unsafe, being exposed to harm or injury, risk or peril.

The definition of a dangerous dog in statutes referred to in the cases mentioned above include phrases such as a dog which has killed or seriously injured a person or an animal; has bitten, injured or attacked a human without provocation; is likely to kill or seriously injure a person; has endangered the safety of a human being or threatens any human or animal. [ 14 ] Kucera and Harmsworth in the hearings had experts who had made an assessment of aggression in the dogs and experts testified as to the dogs’ dispositions.

The theme throughout the B.C. cases is that the owners were generally not responsible owners, as evidenced in Kucera . The dog was ordered to be destroyed if a proper dog owner could not be found in 30 days. [ 15 ] This is not the present case, as on the facts presented, the Barbers are responsible dog owners. [ 16 ] For the most part, the authorities referred to in Harmsworth indicate that the dogs have no history of aggression, which is similar to the present situation where the dogs are family pets but no history of aggression or any indication of aggression.

Then, for no apparent reason, unprovoked, the dogs attack and cause serious harm to humans or animals. [ 17 ] The Saskatchewan legislation is for the protection of the public which includes the protection of domesticated animals. [ 18 ] In our present case, for the three years that he was with the Barbers and those associated with the Barbers, the attack is totally out of character for the dog Ace.

It appears from the information that when Ace is with people he knows, he has never shown any aggression. [ 19 ] We have a situation where Ace and another dog, assumed to be the Barber’s second dog, Bam, got out of their house on their own because of a door accidently left open, likely by a child. Very quickly Ace is found viciously attacking a calf, holding onto the throat of the calf. It is also concerning that after humans arrive, this does not stop Ace from continuing his attack. Even when Mr.

Martin pokes Ace with a pitchfork, he lets go and stops, then immediately lunges and again holds onto the throat of the calf.

It is only after he is stabbed and injured, does this stop him from attacking the calf and he then escapes back to his home. [ 20 ] For whatever reason, Ace, at least for the known past three years of his 7 ½ years of life, had not shown any aggression, but on this one occasion when he is out and away from his owners, he severely and viciously attacked the calf. [ 21 ] Of course, what is on everybody's mind, is whether or not Ace would attack again in such a fashion, most concerning on a human and can this threat be reduced to a level where conditions of his care could be imposed. [ 22 ] The province of Ontario since 2005 has banned the ownership or possession of pit bull breeds in the province.

This is under the Dog Owners Liability Act. RSO 1990,

chapter D-16. [ 23 ] There is a complete ban on pit bull breeds, and any in existence at the time of enacting the legislation are referred to as “restricted pit bulls”.

In Ontario, if a pit bull Under s. 8 and s.9 bites or attacks a person or domestic animal, or has behaved in a matter that poses a menace to the safety of persons or domestic animals, or if the owner breaches the Act or Regulations relating to pit bulls, it is mandatory that the court shall order that the pit bull be destroyed. [ 24 ] This legislation was reviewed by the Court of Appeal in R v Huggins, 2010 ONCA 746 [CanLII] and that the law and the strict destruction of pit bulls was upheld. [ 25 ] The comments of the Court of Appeal provide insight as to the background for this legislation and is an indication as to how the province of Ontario views pit bulls as imposing an inherent danger to the public.

Ontario viewed this inherent danger so great as to bring about legislation for the total eradication of pit bull breeds from Ontario.

[26] Comments of the Court of Appeal in Huggins are helpful in understanding the Ontario position. [5] The Dog Owners’ Liability Act applies to the owners of all breeds of dogs in Ontario. It deals generally with matters of responsibledog ownership and, amongst other things, imposes civil liability on owners of dogs that bite or attack. In addition, it provides that incertain circumstances a court may order that a dog be destroyed or impose other security measures with respect to the dog. Theseprovisions apply to all breeds of dogs. [6] In 2005, however, the landscape changed for pit bulls.

Responding to a series of brutal attacks by pit bulls on children and others,the Ontario legislature introduced amendments to the Dog Owners’ Liability Act directed specifically at that breed of dog. [11] The underlying purpose of Bill 132, which introduced the amendments to the Dog Owners’ Liability Act targeting pit bulls, was tocreate a legislative scheme that, over time, would eliminate pit bulls from the Province of Ontario.

The breeding, sale and ownership ofpit bulls were prohibited, subject to a grandfathering clause that permitted owners to keep “restricted pit bulls” (i.e., those born beforeBill 132 came into force or up to 90 days thereafter) subject to compliance with certain safety measures. For example, restricted pit bullshad to be sterilized and were required to be leashed and muzzled when in public.

As noted above, the impetus for the amendments was aseries of then recent pit bull attacks causing serious injury, and the rationale underlying the legislation was based upon evidence that pitbulls are uniquely aggressive and unpredictable, often attacking without warning or provocation, and that they pose an inherent danger tothe public. See Cochrane v. Ontario (A.G.) (2008), 2008 ONCA 718 , 92 O.R. (3d) 321 (C.A.), leave to appeal to the SupremeCourt of Canada refused, [2009] S.C.C.A. No. 105. [30] I recognize this decision will be difficult for Mr. Huggins, and the result perhaps incomprehensible to him.

Like pet ownersgenerally, he is undoubtedly very fond of Ginger and sees her as the friendly dog and docile pet his mother portrayed at trial. Thelegislature has decided, however – as it is entitled to do – that pit bulls are inherently dangerous animals that pose a risk to public safetyby their very presence in public places.

The language of s. 4(8) is clear and unambiguous about what is to happen when a pit bullcontravenes its provisions, and must be given effect. [27] The case of Cochrane v Ontario (Attorney General), 2008 ONCA 718 , is referred to in the Huggins case, and a reviewof the Cochrane decision indicates that there was conflicting evidence as to the danger of pit bulls, but in the end the court upheld thelegislation on the grounds that the legislature could act on a "reasoned apprehension of harm". [11] There was conflicting evidence before the application judge regarding the dangerousness of pit bulls.

The applicant's evidence wasto the effect that pit bulls are not inherently dangerous; that Canadian statistics indicate that pit bulls were involved in relatively fewreported bites or attacks; and that most pit bulls pose no threat to public safety.

The Attorney General relied on evidence of a series of pitbull attacks that had resulted in serious personal injury, including harm to children; expert evidence that [page327] pit bulls tended to beunpredictable in their behaviour and susceptible to unprovoked attacks; and evidence from the United States indicating that pit bulls wereinvolved in a disproportionately high number of serious incidents. [12] The application judge ruled that the applicant had failed to make out a violation of s. 7 of the Charter on grounds of overbreadth.She held that the legislature could act on a "reasoned apprehension of harm" and that conclusive evidence that pit bulls pose a threat topublic safety was not required so long as the legislative response was not "grossly disproportionate" to the legislative objective.

Shefound that it was unnecessary to resolve the conflicting evidence as to the danger posed by pit bulls and that the record established asufficient body of evidence to permit the legislature to conclude that a total ban on pit bulls was required to protect the public. [28] It is of note that only pit bull breeds are singled out for such drastic measures in the Ontario legislation.

From the Ontariolegislation, and the two Ontario Court of Appeal decisions of Huggins and Cochrane, I find that in Ontario, pit bull breeds weredetermined to be an inherent danger to the public. [29] Saskatchewan legislation does not have a strict destruction aspect to it, nor does it specifically identify pit bull breeds.

As withnon pit bull breeds in Ontario, Saskatchewan requires a determination of the appropriate remedy when a dog has acted as the dog Acehas in the case. [30] I find that the considerations set out in the Ontario legislation are a helpful guideline in assessing what should occur in dealingwith dangerous dog issues, to determine whether or not the public can be protected from the animal by control measures or by destruction

of the animal. These guidelines cover the issues raised in the cases referred to in this decision but their use will provide some consistency in evaluating dangerous dog issues. These are set out in s. 6 of the Ontario legislation as follows: Considerations [ 31 ] s.(6) Except as provided by subsections (8) and (9), in exercising its powers to make an order under subsection (3), the court may take into consideration the following circumstances: 1. The dog’s past and present temperament and behaviour. 2. The seriousness of the injuries caused by the biting or attack. 3.

Unusual contributing circumstances tending to justify the dog’s action. 4. The improbability that a similar attack will be repeated. 5. The dog’s physical potential for inflicting harm. 6. Precautions taken by the owner to preclude similar attacks in the future. 7. Any other circumstances that the court considers to be relevant. The dog’s past and present temperament and behaviour: [ 32 ] From the submissions made, the dog Ace had not shown any signs of aggression prior to the attack on the calf.

Indications are that Ace has not shown aggression with his new owners subsequent to the attack. [ 33 ] From the letters of support filed, it is clear that the Barbers are responsible dog owners, and it is when by accident, Ace and Bam got out of the house that the attack occurs. [ 34 ] From the letters filed, it is clear that the owners are with Ace when others are around. Kalin Weibe, a brother to Nicolette Barber, in his correspondence had cared for Ace by himself alone, when the Barbers were away.

Over the three years of ownership he and others had many interactions with Ace. [ 35 ] We do not know what Ace’s care and behaviour was prior to the Barbers adopting him. The veterinarian bill indicates the dog Ace is 7 ½ years old, and the letter from Jessica Mills, of Adopt a Paw Pet Haven, indicates that Ace was adopted from a high kill shelter, although nothing further is indicated as to his history. [ 36 ] Todd Tumback, Scott Barber's brother-in-law states in his letter that Ace had a rough life which changed for the better when he came to live with the Barbers.

We do not know anything more about Ace’s life or behaviour before coming to the Barber’s. The seriousness of the injuries caused by the biting or attack: [ 37 ] The facts are that Ace and what appears to be the Barber’s second dog Bam, who by the pictures filed also appears to be a pit bull breed, accidentally got out of the Barber's home, by a door left open by a child and attacked a calf on the farm of the Martins, which is close by. [ 38 ] The attack had been going on for some time, as the facts put in by the Crown are that the Martin's had seen dust coming up from their cattle yard, and investigated.

They saw that Ace was attacking a calf, and when they arrived Ace was seen biting and clinging onto the calf’s throat. The calf was bleeding and dragging the dog in attempt to escape. There was an open wound to the calf's right ear, right lower neck near the jugular vein, windpipe area, the front, nose and mouth of the calf in addition to what the Martin’s were observing the dog hanging onto the calf by the throat.

[ 39 ] Mr. Martin went after Ace with a pitchfork; he poked him with the pitchfork. Ace let go briefly and then attacked the calf again biting it on the throat and not letting go. [ 40 ] Mr. Martin then stabbed the dog with the pitchfork and that caused the dog to let go of the calf. He tried to corner the dog but it managed to crawl away.

They located the dog in their neighbour’s yard. [ 41 ] They describe the black dog that was with Ace, as less aggressive and was only chasing other cattle. [ 42 ] The calf was taken to a veterinarian, and survived the incident, but had $1,247.12 of veterinarian bills, of which the Barbers have paid $600 towards the bill. Unusual contributing circumstances tending to justify the dog’s action: [ 43 ] There were no unusual contributing circumstances tending to justify the dog’s action put forward other than pure speculation as to how the cow and calf may have reacted to the dogs.

The improbability that a similar attack will be repeated: [ 44 ] Submissions put forward as to preventing further attacks were by and large based on the dog’s past good behaviour, of which was only known for the past three years. In addition it was put forward that by having the dog Ace placed in a rural setting with an experienced dog owner, and with proper control of the dog Ace, chances of a further attack would be reduced, if not eliminated. [ 45 ] There was no expert or independent objective evidence as to the dog Ace’s temperament or as to the improbability that a similar attack would not be repeated.

The dog’s physical potential for inflicting harm: [ 46 ] From the veterinarian bill for the care of Ace, we know that Ace is a 7 ½ year old, 65 pound golden/tan Staffordshire terrier cross. The dog Ace, by his size and stature evidenced in the pictures filed, has significant potential for inflicting harm. We know he has this potential by the significant harm that was inflicted upon the calf that was attacked. Precautions taken by the owner to preclude similar attacks in the future: [ 47 ] The Barbers, after this one incident, took it upon themselves to return Ace to the shelter where he was obtained.

This was a requirement of the adoption of Ace originally, if for whatever reason they could no longer care for Ace, or no longer able to keep him, he had to be returned to the shelter. [ 48 ] The shelter has found a new home for the dog. The dog is with an experienced dog owner and is 80 kilometers from the nearest town. The new owner, in the Crown’s submissions, stated that Ace is never off leash and is fully contained in a dog run. The Crown filed pictures of the new owners and their family. The new family, while not in an urban setting, has three young children. [ 49 ] Ms.

Barber indicates that they did not have Ace returned to the shelter for a new home, because of any concern of Ace being a dangerous dog, or repeating such an attack. It appears they did this in order not to have any ongoing problems with the neighbor whose calf the dog attacked as well as the Village. Any other circumstances that the court considers to be relevant :

[ 50 ] In this matter I take into consideration and find it relevant that the dog Ace, without any notice, or any indication of an aggressive pattern, viciously and repeatedly attacked the calf and was found with a jaw lock on the calf’s throat. It is significant that the dog Ace was not deterred by human intervention until actual physical injury to itself did the dog release the calf and leave the scene.

This is relevant as it is an indication that the dog Ace, has acted in a totally unpredictable manner, a manner that the owners and all those supporting the dog Ace had not seen or would have predicted to be in Ace’s character. No explanation was provided for the attack other than I find that it is in his nature, as Ace is a dog. The unpredictable nature of the attack, totally outside of the dog’s general indicated character is a significant factor.

It is the dog’s good character for the majority of time that may well lead others to trust Ace and place themselves or their children in serious danger of an unanticipated unprovoked attack by Ace. Conclusion [ 51 ] I recognize that this is a difficult matter for those involved, however, I am not satisfied that any conditions would be sufficient to remove the danger of an unanticipated, unprovoked, out of character, vicious attack on a person, although the attack by the dog Ace in this matter was on an animal.

I am concerned that the dog Ace can and has behaved in a perfectly acceptable manner, leading many people to believe it is not in his character and discounting that he could attack again. [ 52 ] The risk of another attack is too great to put the public at risk, and the public includes the new owners and their family, which consists of three young children. [ 53 ] I am satisfied that in the circumstances, that the dog Ace is required to be destroyed for the protection of the public. [ 54 ] The Act requires that an appeal of this order may be made within seven days after the date of the order and that pursuant to s. 377(1), of The Municipalities Act,

chapter M-36 .1 of The Statutes of Saskatchewan, 2005 every order for destruction of an animal shall state that it shall not be implemented for eight days. I interpret this

section as being the minimum time before destruction of an animal. [ 55 ] In light of the fact that Ms. Barber no longer has the dog Ace in her possession, the time of year and it may be difficult to relay this order to all parties concerned and in control of Ace, the order will be as follows: 1. That Ms. Barber, the accused in this matter is to make arrangements to have the dog Ace euthanized by a qualified veterinarian, within 30 days of the date of this order, unless this order is appealed within seven days, pursuant to s. 376(6). 2. That Ms.

Barber file with this court within 15 days of the dog Ace being euthanized, confirmation from the attending veterinarian of the euthanizing of the dog Ace. 3. That Ms. Barber pay restitution to the Martin’s in the sum of $647.12, to be paid within six months of this order. [ 56 ] In light of the circumstances as to the dog Ace being at large, the steps, and associated costs taken by Ms.

Barber to have the dog Ace returned to the shelter, having paid $600.00 to date for restitution, the additional restitution ordered, and the anticipated costs of euthanasia, there will be no additional penalty by way of fine imposed. ______________________________ K. Bazin, J