R. v. Douglas, 2019 BCPC 80

Citation: R. v. Douglas 2019 BCPC 80 Date: 20190226 File No: 40424-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DEANNA DOUGLAS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: J. Plonka Counsel for the Accused: J. Arndt Place of Hearing: Duncan , B.C. Dates of Hearing: October 24 and 26, 2018, January 10, 11 and 29, 2019 Date of Judgment: February 26, 2019

[ 1 ] THE COURT: This is an application by the District of North Cowichan pursuant to s. 49(1)(b)and(

c) of the Community Charter for an order that two Rottweiler-type dogs, named Harley and Stroker, be deemed to be dangerous dogs and be humanly euthanized or, alternatively, released on such conditions as this court may be deem appropriate. [ 2 ] The District maintains that both Harley and Stroker meet the definition of dangerous dog in s. 49.1 because each was involved in one, if not two, attacks on other domestic animals in a public place.

Moreover, the District submits that animal control officers charged with the care and control of Harley and Stroker since November 30, 2017, are convinced that Harley, if not also Stroker, would, if released, attack another animal and likely cause serious injury or even death to the animal's owner or caregiver. [ 3 ] Ms. Deanna Douglas is the owner of both Harley and Stroker and she is anxious for their return. While not disregarding the District's concerns, Ms. Douglas maintains that Harley and Stroker are loving animals and they are not, in her view at least, dangerous. Still Ms.

Douglas concedes that Harley did bite one small dog. She adamantly denies that Harley was involved in a second attack. Stroker, Ms. Douglas submits, has no bite history. [ 4 ] While Ms. Douglas wants the dogs released to her, the District opposes the release of either animal to Ms. Douglas. It alleges that she is unlikely to abide by any conditions imposed by this court thus putting the safety of the public at risk. [ 5 ] At issue in this case, given the position of the parties, is whether Harley or Stroker or both meet the definition of a dangerous dog pursuant s. 49.1 of the Community Charter .

If so, the question becomes what disposition ought to follow in the circumstances. [ 6 ] In support of its application the District called several witnesses who testified about two attacks alleged to have been committed on their animals by Harley while Stroker was present. [ 7 ] The first of these alleged attacks by Harley is not in dispute. Mr. Ken Chowen, the owner of a recently deceased wire-haired Terrier named Sumo, testified about an attack on his dog by Harley on July 15, 2016. [ 8 ] Mr. Chowen testified that on that day he and his wife were walking their two dogs on the street past Ms. Douglas's home.

He saw two Rottweilers run from Ms. Douglas's property toward them. His wife picked up their small Chihuahua dog and Mr. Chowen picked up Sumo. The larger of the two Rottweiler dogs, which was indisputably Harley, jumped up, bit Sumo on the back, and tugged at him as he lay in Mr. Chowen's arms. Just then, an older man approached from Ms. Douglas's yard and called off one of the dogs, a female. The male, Harley, circled around Mr. Chowen for some minutes until the older male got him under control. [ 9 ] The bite on Sumo drew blood. The next day, Sumo was treated by a veterinarian. Mr.

Chowen described Sumo as being pretty nervous after the attack. He testified, as well, that although a female Rottweiler was present, it was the male Rottweiler, Harley, that bit Sumo. [ 10 ] The Chowen's reported the attack right away to animal control. On July 18, 2016, Coastal Animal Services sent Ms. Douglas a notice advising her that as a result of the attack on Sumo on the 15th, Harley met the definition of the term "vicious dog" pursuant to the District's Bylaw No. 2856. Ms.

Douglas subsequently signed a compliance agreement dated July 28, 2016, agreeing to keep Harley muzzled and on a leash while in public, and otherwise securely confined. [ 11 ] The District invites this court to find that because of this attack on Sumo, Harley meets the definition of a "dangerous dog" pursuant to s. 49 of the Community Charter . It submits further, that this designation in conjunction with what it alleges was a second attack by Harley on another dog in 2017, is sufficient to render Harley not only a dangerous dog, but one incapable of rehabilitation.

In other words, a dog that should, for the safety of the public, be humanly euthanized. [ 12 ] The second attack is strongly denied by Ms. Douglas. [ 13 ] The District alleges that on November 15, 2017, Harley and Stroker ran off of Ms. Douglas's property onto the adjacent street and there approached a group of people who were walking by with the dog, Prince. There is no question that Prince was attacked by one dog, at least, and sustained several serious injuries. The District alleges that Harley caused the most serious injury.

It invites this court to find that Stroker, too, bit the dog Prince causing an obvious laceration on Prince's back end. Ms. Douglas denies that Harley attacked Prince, though she acknowledges that Stroker was present when Prince was attacked. [ 14 ] In this hearing, Ms. Douglas maintains as she has since the evening of November 15, 2017, that Prince was set upon and injured by a Rottweiler named Gus who lived in the general vicinity. On the evening in question, Ms. Douglas maintains she was putting Stroker and her two other dogs in her truck when Gus approached.

As Prince's group walked by, Gus ran off toward them and Stroker ran after him with Ms. Douglas close behind, though not close enough to prevent the attack on Prince. Ms. Douglas maintains that Harley was, at the material time, with her husband in Ucluelet. [ 15 ] In Community Charter v. Whittle, 2005 BCPC 610 , Judge W.J.

Rodgers wrote at para 42, that in order to meet the definition of "dangerous dog" under the Community Charter , it is the Crown that bears the onus of proof on a balance of probabilities. [ 16 ] The District maintains it has met its onus regarding Harley having proved that he attacked and bit Sumo. Still, its position regarding Harley's dangerousness and his necessary euthanization is fortified if it can prove the second much more egregious attack on Prince.

Moreover, as the District frankly and fairly conceded, were it not for the second alleged attack on Prince, it would not be seeking this order. [ 17 ] Bearing in mind the evidentiary burden, I find firstly that the District has proven largely through Ms. Douglas's own admissions, both to Prince's owner and here at trial, that Stroker was present when Prince was attacked. However, the District has not proven on balance that Stroker bit Prince. Moreover, the District has not proven that Stroker was present when Sumo was attacked. [ 18 ] The large male Rottweiler that attacked Prince fits Harley's description.

Given the previous bite on Sumo on the street outside of

Ms. Douglas's property, it would not be difficult to find on balance, absent any evidence to the contrary, that it was Harley that attacked the dog Prince. Such a finding would have significant implications for both Harley and Ms. Douglas. However, Ms. Douglas has called evidence to the contrary and as such I must determine whether I am convinced on all of the evidence of the likelihood that Harley attacked Prince. While this turns mostly on Ms.

Douglas's alibi evidence, it is necessary to consider the evidence as a whole starting with that of Prince's owners. [ 19 ] Of November 15, 2017, shortly after the dinner hour, Ms. Bronwyn Coyne, her partner, Mr. Bryan Simpson, and her parents were out walking Prince. Just as they turned onto Ms. Douglas's street, two large Rottweiler-type dogs ran from Ms. Douglas's property toward them. Ms. Coyne dropped Prince's leash and he ran off. He was, to their horror, cornered by the two dogs and bitten by at least one. Ms. Coyne described the attack dog as a large, male Rottweiler wearing a harness around his midriff.

The District submits this animal was Harley. [ 20 ] Ms. Douglas was on the scene almost immediately though, as I have noted, not quickly enough. She was seen to grab the male dog and hold him down. Mr. Simpson testified that he was, without any difficulty, able to hold on to the female dog we know was Stroker. Both Mr. Simpson and Ms. Coyne recall Ms. Douglas stating that the aggressive male dog was not her dog. Ms. Coyne agreed in cross examination that Ms. Douglas told her mother shortly after the attack that the name of the attacking dog was Gus. Ms. Coyne assumed that Gus was the name of Ms.

Douglas's dog. [ 21 ] Ms. Tanton, a neighbour of Ms. Douglas, was familiar with Ms. Douglas's dogs having seen them sometimes tethered and sometimes not in Ms. Douglas's front yard. Ms. Tanton testified at trial that she heard Ms. Douglas yelling "Harley and Stroker" that evening just as Prince was being attacked. Ms. Tanton also testified she heard Ms. Douglas tell the Simpson and Coyne party that the dogs were not her dogs. Ms. Tanton gave Ms. Simpson her number and offered to act as a witness for them if need be. [ 22 ] Ms.

Tanton also made out a written statement for animal control officers the day after the attack on Prince. She wrote of hearing Ms. Douglas yell, "Harley" and "bad dog". She recalled Ms. Douglas saying, "It wasn't her dog." [ 23 ] The bulk of the evidence is I find consistent with Ms. Douglas telling Prince's owners that the attack dog, the dog she identified as Gus, was not her dog. I do not accept that Ms. Douglas ever denied that Stroker was her dog. Rather both, Ms. Douglas and Mr. Simpson, agree he was told by Ms.

Douglas not to worry about Stroker - to let her go and she would be fine, which turned out to be the case. As for calling out the name Harley, Ms. Douglas does not deny she could have done that, but maintains she had to have been flustered and momentarily confused as Harley was not present. [ 24 ] The attack on Prince was reported immediately and animal control officers Elley and Horne went to speak with Ms. Douglas at her residence on November 17, 2018. A woman present told the ACOs that Ms. Douglas was absent having taken her three dogs to the vet. On November 19, 2018, ACO David Elley again attended at Ms.

Douglas's residence and spoke with her. Mr. Elley testified he advised Ms. Douglas of her right to silence and that Ms. Douglas acknowledged understanding the warning. Ms. Douglas then told Mr. Elley that the dog, Gus, had attacked Prince. She said she thought Gus lived over on Lane Road. Ms. Douglas further advised that Harley had been with her ex-husband in Ucluelet when Prince was attacked. [ 25 ] ACO Elley testified that after this discussion with Ms. Douglas, he tried to find the dog, Gus. He looked through the North Cowichan dog licence database and found no match.

He spent a day going door to door on Lane Road but found no dog answering the description of Gus. He also tried to connect with Ms. Douglas's ex-husband, Scott Lurvik to confirm her side of the story. Officer Elley was never able to connect with Mr. Lurvik, though Mr. Lurvik did once leave a message on Elley's voicemail. [ 26 ] By late November, Officer Elley had concluded he was getting no compliance from Ms. Douglas. He felt there was a risk to the public, and so seized all three of her Rottweilers. Shortly after, the smallest dog, Shadow, was returned to Ms.

Douglas. [ 27 ] Suzanne Stockand, the owner of Coastal Animal Services, testified that Bronwyn Coyne attended at the shelter shortly after all three of Ms. Douglas's Rottweilers were seized and positively identified Harley and Stroker as the animals involved in the assault on Prince. Ms. Coyne testified she was shown three Rottweilers at animal services and identified Harley and Stroker because their size matched the two dogs involved in the attack on her dog. She knew the animals had been seized from the care of Ms. Douglas. It is apparent, I find, from Ms. Coyne's testimony, the evidence of Ms.

Stockand, and ACO Elley's notes, that her identification was based, in large part, on the assumption that the dogs in her presence were the dogs seized by animal control because, at least, two of them were involved in the attack. Ms. Coyne and Mr. Simpson were simply identifying which of the two were involved and chose Harley and Stroker over Shadow because of their size difference. [ 28 ] Ms. Douglas called Mr. Curtis Thoresen who testified that he was with Harley in Ucluelet at the time of the attack on Prince on November 15, 2017.

The District submits this alibi evidence was given without proper notice, is poorly concocted and should be approached with great skepticism. [ 29 ] I have considered the evidence of Ms. Douglas and Mr. Thoresen, alongside all of the evidence in this trial. While it is impossible on the evidence in this trial to know with any certainty whether Harley was at Ms. Douglas's residence on November 15, 2017, and did attack Prince, on balance, I find the preponderance of evidence supports Ms. Douglas's position that he was not. I was, in this regard, particularly persuaded by the evidence of Mr.

Thoresen which I find was, to some extent, corroborated by other evidence in the trial. [ 30 ] Mr. Thoresen, age 23, testified that he was working with Ms. Douglas's ex-husband, Mr. Scott Lurvik in Ucluelet on a housing construction project in November 2017. Mr. Thoresen testified he first met Mr. Lurvik on November 1st. On November 12, 2017, they drove together from Ucluelet to Ms. Douglas's residence to pick up Mr. Lurvik's dog, Harley. Mr. Thoresen recalled being told by Mr. Lurvik that they were picking up Harley so he wouldn't mate with another dog living in the same home that had gone into heat. [ 31 ] Mr.

Thoresen recalled leaving Ucluelet with Mr. Lurvik in the early morning of November 12th. He recalled the drive, the stops along the way, and then attending at Ms. Douglas's residence. He described spending time with Harley in the front yard and then returning to Ucluelet with Harley and Mr. Lurvik. In Ucluelet, Mr. Lurvik and Mr. Thoresen each spent time with Harley dividing the

tasks of walking and feeding and otherwise tending to him. [ 32 ] Mr. Thoresen agreed on cross examination that when he met Harley, Harley was unleashed and un-muzzled. Mr. Thoresen, at least, was not provided with a muzzle when he left Ms. Douglas's home, nor was he given any particular instructions regarding steps to take to ensure Harley, by then designated a vicious dog, would not endanger the life of another animal or person. Mr. Thoresen testified that he spent between November 12th and November 19th, 2017 in the company of Harley in Ucluelet. Mr. Thoresen obviously liked the dog very much.

He found him to be friendly and engaging. He also knew that Mr. Lurvik went to Ms. Douglas's residence on the night of November 15th in response to the attack. He maintains Harley was with him and not in Duncan at the material time. [ 33 ] Mr. Thoresen was cross examined extensively by counsel for the District. His evidence remained consistent throughout. His demeanor consistently pleasant. There was no point at which Mr. Thoresen could be described as being defensive or obstructionist. His evidence was, in my view, believable. All the more so, and I mean no disrespect by this, as it appeared to me that Mr.

Thoresen lacked the sophistication or mental agility necessary to carry a lie through direct and cross examination. As I say, Mr. Thoresen remained consistent. His testimony did not in any important respect vary. I believe he was telling the truth when he testified that a dog named Harley was with him in Ucluelet on November 15, 2017. [ 34 ] Having said this, I acknowledge that the evidence of Ms. Douglas and Mr. Thoresen differed on some points. Ms. Douglas recalled Mr. Thoresen playing with Harley in her backyard. Mr. Thoresen recalled that it was in the front.

This does not undermine what was, otherwise, solid testimony by Mr. Thoresen. I agree, as well, that Mr. Thoresen did not have a good recollection of Harley, aside from recalling the dog was black and brown in colour. That much is correct; Harley is black with some brown colouring. I take little from the fact that Mr. Thoresen could not summon Harley's breed. It may be, as the District alleges, that the alibi was poorly concocted. It is equally possible that Mr. Thoresen who spent little time with Harley in November of 2017 simply could not recall the breed in late 2018. [ 35 ] Mr.

Thoresen saw a dog tag with Harley's name on it. I accept that evidence. He initially testified that he saw a tag on the licence, but quickly and without prodding or prompting, offered that he did not quite see the licence, but assumed the name tag would have had a licence with it. Mr. Thoresen also recalled a tattoo on Harley's ear. He could not recall much about the tattoo but for one number which he also could not recall. Ms. Douglas testified Harley had no such tattoo; rather Harley had a scar on his ear. [ 36 ] The District submits that the most that can be drawn from Mr.

Thoresen's testimony is that he spent from November 12th to November 19th, 2017 in Ucluelet with a black and brown dog of some indeterminate breed with an ear tattoo which happened to wear a collar sporting the name Harley. I agree with that submission, insofar, as I am convinced by Mr. Thoresen's testimony that he did spend from November 12th to the 19th, 2017 in the company of a black and brown dog named Harley. I am however, also convinced on balance that the dog was the dog Harley at issue in this proceeding. Mr. Thoresen knew the dog he was with was named Harley, not just because of the collar tag.

He testified with no hesitation in cross examination that he knew the dog's name because of the name tag, but also because Mr. Lurvik told him his dog's name was Harley. [ 37 ] Mr. Thoresen's testimony that Harley was spending time in Ucluelet to avoid mating with another dog in the home makes good sense. It is just as Ms. Douglas testified. Stroker is the offspring of Shadow and Harley and Stroker was in heat in November 2017.

Naturally, as Harley was not neutered, it would make sense to separate him from his offspring while she went through heat. [ 38 ] There is on the evidence a compelling rationale for Harley's presence in Ucluelet in November 2017. There is compelling evidence that Harley was with Mr. Thoresen. That includes the evidence that the dog attacking Prince was identified as wearing a harness. Ms. Douglas was vehement and unshakeable in her testimony that Harley did not and could not wear a harness at the time. I say "at the time" because Ms.

Douglas did testify that she now has a harness suitable for Harley. [ 39 ] I am mindful of other contra- indications in the evidence regarding Harley's whereabouts on November 15, 2017. On the 17th, for example, ACO Elley made a note of being advised by a woman in Ms. Douglas's residence that she had taken her three Rottweilers to the vet that day. Still it is speculative to take this to mean that Harley was present on the 17th in contradiction to Mr. Thoresen’s testimony that Harley was returned on the 19th. [ 40 ] Even as the attack was occurring, Ms. Douglas was maintaining the large male dog was not her own.

Within minutes of the attack, Ms. Douglas advised Ms. Coyne's mother that the attacking dog's name was Gus. She told ACO Elley this as well several days after the attack. Ms. Douglas advised that she thought Gus lived somewhere over on Lane Street behind her home. The District maintains that Gus is a fiction. That his presence that evening is simply unbelievable and that Ms. Douglas has changed her evidence on the circumstances of Gus's arrival and the general location of his home. [ 41 ] Ms. Douglas's evidence regarding Gus is relatively straightforward.

When walking in her general neighbourhood she met a woman walking a large male Rottweiler. They spoke given their mutual interest in the breed, and Ms. Douglas learned the dog's name was Gus. On the evening of November 15, 2017, Ms. Douglas was preparing to drive her friend home. She put her dog Shadow and Shadow's puppy into the truck and was about to do the same with Stroker when she looked down and saw the dog she knew to be Gus. Just as quickly, Gus ran off toward Ms. Coyne's party who were walking by. Stroker ran after Gus and Ms. Douglas ran after Stroker. Ms.

Douglas submits that Gus may have been attracted by Stroker who was just then in heat. She testified there were recent signs indicating that something had tried to get into her back yard, possibly to get at Stroker. [ 42 ] I have already described the attack and Ms. Douglas's efforts to get Gus away from Prince. At trial Ms. Douglas testified that once she got control of Gus, he dragged her for a bit and took off. Ms. Douglas told ACO Elley several days after the attack that she puts the dogs in the truck. It suggests this included Gus. Certainly members of Ms. Coyne's party saw Rottweilers in Ms.

Douglas's vehicle as she stopped to speak to them and give them her number. So there is this difference in Ms. Douglas's testimony and her statement to ACO Elley respecting the whereabouts of Gus immediately after the attack. I do not agree with the District that Ms. Douglas changed her evidence regarding the location that she thought she knew of it, at least, of Gus's home. I find that evidence was the same throughout. [ 43 ] At this trial Ms.

Douglas testified that sometime after the attack, Gus's owner, whom she identified by name in court, came to her residence, upset and apologizing for the fact that Harley was charged with the assault on Prince. Ms. Douglas testified Gus's owner

told her that Gus had been put down. Ms. Douglas also testified that Gus's owner tried to report this to the district to no avail. [ 44 ] Like Mr. Thoresen, Ms. Douglas was cross examined extensively. I found Ms. Douglas's evidence also remained largely consistent. On the whole her evidence, while imperfect, made sense. There were several instances during cross examination where it would have been easy for Ms. Douglas to falter if she were lying. As an example, during the general line of questioning about Ms. Douglas's dog walking habits, she was asked whether she met any other Rottweilers.

The immediate answer was that she had met Gus and his owner, followed by a detailed description of the circumstances of the meeting. Much later in the cross examination, it was put to Ms. Douglas that Gus did not exist. Again, the immediate answer was "He did and he's dead." [ 45 ] Cross examination is a useful tool for ascertaining the truth precisely because it is difficult for most people to sustain a lie for any length of time under questioning. Here Ms. Douglas did not falter or hesitate when asked about meeting other Rottweilers. When it was put to her that Gus did not exist, Ms.

Douglas replied instantly using the correct past tense. It suggests to me that her answer was truthful. [ 46 ] Again, there is no way to know with certainty whether Ms. Douglas and Mr. Thoresen had concocted an alibi. On balance, I accept their evidence. As such it is not on the evidence in this trial open to me to find that Harley attacked Prince. Still it remains to be determined, given these findings and the remainder of the evidence, whether Harley or Stroker or both are dangerous dogs. [ 47 ] Pursuant to s. 49.1 of the Community Charter , dangerous dog means a dog that:

a) has killed or seriously injured a person,

b) has killed or seriously injured a domestic animal while in a public place or while on private property other than the property owned or occupied by the person responsible for the dog, or

c) an animal control officer has reasonable grounds to believe is likely to kill or seriously injure a person. [ 48 ] The District submits that even if this court cannot be satisfied on balance that Harley bit Prince in the presence of Stroker, the bite on Sumo is sufficient to meet the definition of dangerous dog. On its face, the attack on Sumo by Harley would qualify Harley for the definition of dangerous dog set out in s. 49.1(b). Sumo was seriously injured by Harley while in a public place.

As such it is open for me and I do find Harley to be a dangerous dog within the meaning of s. 49.1 of the Community Charter because of the attack on Sumo. [ 49 ] With regard to Stroker, there is, firstly, insufficient evidence on which I could find Stroker was present for the attack on Sumo. Secondly, while Stroker was clearly present during the attack on Prince, I am unable on the evidence before me to find on balance that Stroker bit Prince as the District submits. As such, Stroker would not meet the definition of a dangerous dog, but for the opinion given by ACO Elley.

He testified that after having cared for the dog since November 30, 2017, he had developed a distrust of the animals. He testified further that he believed a human could be attacked trying to protect their animal. He was also concerned that dogs are sometimes unable to distinguish between small dogs and children. I am certain that ACO Elley is sincere in his concern and his belief; still that does not end the matter. [ 50 ] The District's position that the dogs must be euthanized is strengthened, it submits, by the opinion of Ms. Lisbeth Plant the District's dog expert. Ms.

Plant has given the opinion, based on information provided to her by the District and by her own testing, that Harley is irredeemable. Stroker, Ms. Plant suggests, could be rehabilitated but it would be a long and costly process. Ms. Plant opines that Ms. Douglas could not undertake these requirements as evidenced by the fact that Ms. Douglas is generally non-compliant with District animal bylaws or directions. [ 51 ] Since their detention, Harley and Stroker have resided in individual caged kennels approximately 40 square feet in size. Out of concern for the safety of her staff, Ms.

Stockand discourages the handling of Harley; Stroker less so. Both are let out two times each day into an outdoor paddock, largely, to relieve themselves. More recent video footage shows both dogs, but particularly Harley, to be reasonably adapted to this arrangement; content, at least, to go back to his kennel from his exercise pen. Still these are far from optimal conditions for these animals, and as Ms. Plant reported, Stroker, at least, was showing signs of stress early on by, among other things, eating her own feces. [ 52 ] Ms.

Douglas testified that the shelter refused all of her requests to visit Harley and Stroker. The District took the view, as I understand it from the record, that Ms. Douglas could not visit the dogs unless Ms. Plant could be satisfied the visit would not be detrimental to them. The issue was never addressed in any detail in this trial. As best as I can make out, neither party was able to reach a reasonable solution - I will add parenthetically until the conclusion of evidence in this case when Ms. Douglas was able to visit her animals by agreement.

That was unfortunate for these animals, particularly for Harley, who for some time had a coat condition that went untreated as a result. As Ms. Plant agreed, the shelter was a stressful environment for both animals. Still it was at the kennel that Ms. Plant carried out her testing to assess the dog's behaviours and to determine their prognosis for rehabilitation. [ 53 ] Ms. Plant submitted a report in this trial, as well as videotape showing each of her tests. They are composed of a staff member or Ms.

Plant walking by each of the dogs housed in their kennels with, alternatively, a small decoy dog, a larger decoy dog, and a decoy child. In each instance Ms. Plant concluded that the dogs exhibited fearful and/or territorial aggression towards the decoys. The tests were done late December; approximately three weeks after the dogs were impounded. Subsequent testing was done with the dogs in February and then in September of 2018. All of the testing involved decoys. The value of such testing, as Ms. Plant frankly stated in her opinion, can be debated. Ms.

Plant's opinion is based on her testing and on information provided by the District including that Harley attacked Prince; that Stroker may have bitten Prince; and that Harley bit Sumo. Other information providing regarding Ms. Douglas figured prominently in Ms. Plant's opinion that the dogs could never be returned to her care. [ 54 ] It is the case, as Ms. Plant admitted on cross examination, that the field of dog behaviour and dog training is less a science than an art. As Ms.

Plant testified there is no formal training for the field per se , but that with experience and immersion in the literature, persons like Ms. Plant can offer their best informed guess as to the likelihood of a dog behaving in a given fashion. Nonetheless, I accept Ms. Plant is in a better position than the court to opine on the likelihood of these dogs attacking in the future. It is a question of what weight I put on the opinion. The lack of scientific methodology means the weight of the opinion should be approached with some caution.

I have other concerns with the opinion that also go to weight. [ 55 ] In this case, I shared the concern expressed by counsel for Ms. Douglas that Ms. Plant was just too close to the file. First, though

this was disclosed at the outset, it is an unfortunate fact that in addition to giving this opinion on Harley and Stroker, Ms. Plant was working with Prince's owners on his rehabilitation. Secondly, in my view, Ms. Plant wrongly intervened in the court proceeding to advise counsel on matters well outside her area of expertise. Thirdly, and most importantly, much of Ms. Plant's opinion and her evidence is concerned with the suitability of Ms. Douglas, in particular, as a pet owner. [ 56 ] I can accept Ms.

Plant's opinion that Harley and Stroker demonstrated behaviours like aggression and fear during the testing that was carried out in the kennels. That is within her area of expertise. I can accept Ms. Plant's opinion that were the dogs to be re-homed, or at least if Stroker were to be re-homed, it would have to be on condition that the animal was kept well secured at all times, and that its aggressive tendencies be addressed through behavioural training. I can also accept it would necessarily follow that whomever the dogs were released to would have to be capable of complying with these conditions. However, Ms.

Plant goes much further and opines on suitability of Ms. Douglas. [ 57 ] The suitability of a particular individual seems to me to be well beyond the expertise of Ms. Douglas and outside of her brief. What is more, I do not find Ms. Plant's reasoning on the suitability of Ms. Douglas as a potential resource for Harley and Stroker to be convincing. Rather it did not seem to matter what the facts were, Ms. Plant was firmly of the view that the dogs could not be returned to Ms. Douglas. As an example, in cross examination Ms.

Plant was asked whether her opinion that Harley was irredeemable would change if the evidence did not establish that Harley bit Prince. Ms. Plant agreed she would want to reconsider her opinion. When asked what she would want to reconsider, Ms. Plant testified that Harley's prognosis might be different, but the same issue applies whether he has bitten Prince or not and that is owner compliance. Ms. Plant was asked, "Was her concern about owner compliance that Ms. Douglas had allegedly been seen with Shadow, another of her dog's, without a muzzle?" Ms. Plant agreed it was that, and the lack of a dog's licence.

When asked if her opinion would change if the court could be satisfied that Ms. Douglas did not have Shadow in public without a leash, Ms. Plant replied, "But we still have the most basic problem which is the lack of a dog licence." [ 58 ] Ms. Plant's original opinion that Harley was irredeemable was based on her understanding that Harley bit Sumo and attacked Prince, as well as her testing in the stressful environment of the shelter using her specialized knowledge. Ms. Plant's opinion that Harley could not be returned to Ms. Douglas because of owner noncompliance was based on her understanding that Ms.

Douglas had ignored a muzzle requirement for Shadow, and did not purchase licences for any of her dogs. Still her opinion did not change even when asked to assume that Harley did not attack Prince and that Ms. Douglas was guilty only of failing to buy dog licences. [ 59 ] I acknowledge, as I have noted, that Ms. Plant knows more than this court about dog behaviour. Still Ms. Plant's refusal to change her opinion of Ms. Douglas, and frankly, of Harley and Stroker's chances of success in the care of Ms. Douglas when faced with a different fact pattern, causes me to question her impartiality in this case.

Having said that, I do not entirely disagree with Ms. Plant that there is good reason to be concerned about these dogs being released from the shelter after all this time. I am, however, not satisfied they are yet at the point where the only solution consistent with public safety is their euthanization. Moreover, it is not open to this court to order either Stroker's euthanization or even her release with conditions.

To do so, as counsel conceded, would require that I first find that Stroker meets the definition of a dangerous dog. [ 60 ] I have already noted that the District has not proven Stroker to have a bite history. It has proven that Stroker was present during the attack on Prince, but no more. The District maintains Stroker can be found to meet the definition of dangerous dog based on ACO Elley's evidence. Officer Elley testified that he did not trust either Harley or Stroker. I noted in Ms. Plant's notes that she was advised by ACO Elley only that he did not trust Harley. Ms.

Plant too gave the opinion at trial, "without going into any definition of what constitutes a vicious or a dangerous dog under s. 41, that these dogs are dangerous." [ 61 ] In her report, Ms. Plant wrote that both Harley and Stroker exhibited territorial aggression and fear aggression. Because of what Ms. Plant understood to be Harley's bite history, she concluded also that Harley displayed predatory behaviour. Territorial aggression can be defined, Ms.

Plant writes as "an aggression that has consistently demonstrated in the vicinity of a circumscribed area where that area is approached by an individual or a group in the absence of an actual threat from those approaching." [ 62 ] Ms. Plant's testing, by which decoys were first walked by and ultimately thrust at the kennels housing both Harley and Stroker, caused Ms. Plant to come to this opinion. In later testing, decoys were placed in the dog's exercise pen including the child decoy. Ms.

Plant saw signs of possible territorial or fear aggression in Harley, yet he was easily controlled and, at times, entirely disinterested in the decoys. Stroker was seen to grab one of the decoys and treat it, "like a prey or a toy". Ms. Plant saw signs that Stroker was afraid of the decoy Lucy. [ 63 ] Ms. Plant concluded in her report, at least, that while the traits of territorial and fear aggression can be rehabilitated, her view was that Harley's prognosis was poor. Stroker's was better, but Ms. Plant had concerns that as the offspring of Harley, there could be a genetic component to Stroker's behaviour. Ms.

Plant also referenced an alleged biting attempt which was never introduced as evidence in the trial. [ 64 ] Whatever Ms. Plant's opinion regarding the dangerousness of these two dogs, s. 49.1 of the Community Charter is quite specific. To find a dog dangerous under that provision, I must find one of ss. (a), (b), or (

c) have been proven. With regard to Stroker, the District submits this court can find she is dangerous pursuant to ss. (

c) in that ACO Elley has reasonable grounds to believe she is likely to kill or seriously injure a person. As was noted during submissions, ACO Elley never testified to having a subjective belief that Stroker is likely to kill or seriously injure a person. Moreover, such a belief is not made out objectively on the evidence in this trial. I will accept that Stroke exhibited fear and territorial aggression during the testing in the kennels. It does not follow, in my view, that this constitutes objective evidence that Stroker is likely to kill or seriously injure a person.

For these reasons, I find that Stroker does not meet the definition of a dangerous dog pursuant to 49.1 of the Community Charter . This court having no further jurisdiction to deal with the animal, it follows that Stroker must be released back to Ms. Douglas. [ 65 ] As for Harley, I have already found him to be a dangerous dog pursuant to s. 49(1)(b). As with Stroker, I find the evidence insufficient to establish subjectively or objectively that Harley is likely to kill or seriously injure a person.

That is not to say I disagree with ACO Elley's evidence which accords with common sense, that if Harley were to attack another animal while that animal was in the presence of its owner or caregiver, it is conceivable that the owner or the caregiver could be injured, if even only slightly. I say only that

the evidence does not, in my view, go so far as to demonstrate on balance that Harley is likely to seriously injure or kill a person. [ 66 ] Still, Harley has been deemed a dangerous dog within the meaning of s. 49 (1)(

b) and that does give rise to the question of whether he must be destroyed or released with conditions. It is clear from the reasons at paragraph 31 of the Capital Regional District v. Kuo , 2006 BCSC 69 , that this court can consider either alternative order. It becomes a question as the court there wrote: [A] balancing public protection from a dangerous dog against the property right of the owner of the dog. [ 67 ] Other courts called upon to engage in this balancing have referred to various factors or circumstances useful to take into consideration and I am guided by those. [ 68 ] In Community Charter v.

Whittle , Judge W.J. Rodgers found that the circumstances of the attack, the circumstances of the owner, and the evaluation of the dog by canine experts were all relevant considerations going to the question of whether a dog should be euthanized or released. In Santics v.

Vancouver City Animal Control Officer , 2019 BCSC 24 , the court on appeal determined that the trial judge made no error in law in considering other factors such as the dog's physical potential for inflicting harm, unusual circumstances tending to justify the dog's actions, and precautions taken by the owner to preclude similar attacks in the future. [ 69 ] There is, in addition, the question as to which party bears the onus of proving the dog's release with conditions is justified.

In Santics at paragraph 33 and 34 , the court concluded that it was the owner that bore the risk of failing to persuade the judge there were viable alternatives to euthanasia that would protect the public. The court held that if the owner introduces no expert or other evidence, the judge will be left to determine the matter on the basis of the evidence produced. [ 70 ] The circumstances of the attack at issue are those surrounding the assault on Sumo while in Mr. Chowen's arms. The behaviour is concerning, the bite was serious, and it took time to bring Harley under control. The circumstances of Ms.

Douglas and really her ability, and/or willingness, to comply with an order if Harley was to be released into her care, is, I agree, problematic. The District notes that after the attack on Prince and the impounding of Harley and Stroker, it issued, yet, another direction. This time that Ms. Douglas's dog, Shadow, be muzzled whenever she was in public. The District entered into evidence photographs of Ms. Douglas in the Walmart parking lot with the dog it says was Shadow on a leash but not muzzled. The District had also issued two other tickets to Ms.

Douglas for taking Shadow out in public without a muzzle. [ 71 ] Ms. Douglas testified that ACO Elley photographed her and Shadow at the Walmart where she had gone to buy a muzzle after having been evicted from her home. Ms. Douglas otherwise denies taking Shadow out without a muzzle and maintains animal control officers spotted her with another Rottweiler. [ 72 ] Even if I accept this second objection, it is the case that Ms. Douglas admittedly took Shadow out in public to the Walmart store without a muzzle as she was required to do. This is the case whether or not Ms.

Douglas intended or intends to challenge the order. Moreover, it is no excuse to say this trip was for the purposes of buying a muzzle. As a responsible dog owner bound by the muzzle order, Ms. Douglas ought to have taken some steps to keep Shadow out of the public until such time as she purchased the muzzle. [ 73 ] Moreover, it is clear from the testimony of Mr. Thoresen that Ms. Douglas made no mention to him of the requirement that Harley be muzzled last November 2017. No muzzle was provided. This was clearly in contravention of the compliance agreement Ms. Douglas signed.

Moreover, it strongly suggests that Ms. Douglas did not take the attack on Sumo seriously. [ 74 ] By any measure, Harley is a large and powerful animal. As with any animal, Harley is always possessed of the potential to cause harm. All the more so now having met the definition of a dangerous dog for the purposes of s. 49(1)(

b) of the Community Charter . All dog owners have a duty not only to properly care for their animals, but to keep their animals under control and to take all reasonable and necessary steps to ensure their animals do not harm other animals or humans. The larger and more powerful the dog, the greater the responsibility. [ 75 ] Ms. Douglas has, certainly in the past, shown a disregard for this responsibility. I accept that she may well be guided by her love for the breed, her love for Harley, and her experience with him as a loving domestic pet. Even as both Mr. Thoresen and Ms.

Olsen described Harley as friendly and outgoing and loving, they were, nonetheless, referencing a dog that attacked Sumo while in the arms of his owner, Mr. Chowen. We have to accept that in certain environments, particularly, familiar environments free of any stress or challenge, dogs such as Harley will be just as Ms. Olsen and Mr. Thoresen describe. It is however, precisely when something in that environment changes, something in an instant, and typically without warning, that care must be taken both in the moment and well before.

It is in this situation that an owner must have sufficient care and control of his or her animal such that the animal either responds appropriately to a stress or trigger or will respond quickly and directly to the owner's command. Alternatively, care must be taken to ensure the animal is not exposed to a trigger. Ideally, all such measures should be in place. This requires commitment and resources. It is not enough to just love an animal such as Harley. Much more is required of a responsible pet owner.

The public is owed this, as well as, the animal. [ 76 ] Prior to the detention of Harley and Stroker, it is apparent that Ms. Douglas was careless with these animals even after the attack on Sumo. Still over these past many months, Ms. Douglas has formulated a plan for the return of both Harley and Stroker. Since they were impounded, Ms. Douglas has moved, albeit, under quite exigent circumstances from her home in Duncan to the Cobble Hill area. She now resides in a mobile home located on a large rural property that is nearly fully fenced. [ 77 ] Ms.

Douglas proposes that if her dogs are returned to her, she will do whatever is necessary to ensure they pose no risk to other animals or humans. I do not doubt her sincerity. Ms. Douglas agrees to muzzle her animals, to harness them, to walk them separately if need be, to keep them fenced and under control at all times, to neuter Harley and to have Stroker spayed, to engage the services of an animal behaviouralist, and to allow the District to attend her residence without notice to ensure these steps have been taken.

She will, of course, buy licences for all of her animals. [ 78 ] Still the fencing is not entirely complete; Ms. Douglas maintains that it will be. As for resources, Ms. Douglas indicates she is expecting to receive some monies from an estate settlement in the near future. She expects she will be entirely ready to undertake the

care and control of her two dogs. While there was some question of Ms. Douglas's physical ability to handle her dogs, I am satisfied having heard her evidence that those physical issues have resolved, at least, for the time being. [ 79 ] In respect of the expert's opinion, ultimately, during her cross examination, Ms. Plant came to accept that if Harley had but one bite in his history, his prognosis for rehabilitation was better, but for the fact his owner, Ms. Douglas, was not compliant. I am not as convinced as Ms. Plant that Ms. Douglas either cannot or will not comply with any order this court makes.

Moreover, there can be no doubt that if Harley is not returned under conditions to Ms. Douglas, he will, ultimately, have to be euthanized. I think it quite clear his prospects for being re-homed by the District are nil. [ 80 ] Having dismissed the District’s application for an order declaring Stroker to be a dangerous dog, this court has no jurisdiction to make any conditions regarding Stroker's return. However, if Harley were to be returned to Ms.

Douglas, the conditions of return would, necessarily, include conditions governing Stroker such as that Stroker must be spayed and walked separately from Harley, and that Stroker, too, undergo behavioural training. [ 81 ] Having considered the factors set out above, I find that provided certain conditions are in place, Harley can be released into the care of Ms. Douglas. The conditions are far more onerous than those provided in the compliance agreement. In my view, at this juncture, given the dog's experiences these past many months, and the clear evidence that Ms.

Douglas did not take the bite of Sumo seriously, I find stricter conditions are necessary to balance the right of Ms. Douglas to her property with the safety of the public. The order will provide, among other things, a chance for the District, or any authority having jurisdiction over animal control where Ms. Douglas resides with these animals, to satisfy itself from time to time that Ms. Douglas is complying with the release conditions. That in turn, will require Ms. Douglas to keep the District or other relevant animal control authorities advised at all times of Harley's residence so long as he remains alive.

I agree also with the submissions of the District, that any release order must also provide for Harley's euthanization should any other biting incident occur. [ 82 ] The following are the conditions for the release of Harley into the care of Ms. Douglas. [ 83 ] Neither Stroker nor Harley will be released into the care of Ms. Douglas unless she first satisfies the District or other animal control officers having authority where she resides, that she has obtained all necessary licences and tags. [ 84 ] Ms.

Douglas will ensure that Harley is muzzled and on a leash and under the care of a competent person whenever he is at large, on a highway, or in a public place. When Harley is not muzzled and on a leash, Ms. Douglas will at all times ensure that he is secured and confined by, a), being indoors; b), being in an enclosure that prevents entry by any person including a child and prevents Harley from escaping or inflicting harm on any person or animal. In addition, a sign must be posted warning of a dangerous dog. [ 85 ] Ms.

Douglas will arrange and pay for the cost of the neutering of Harley before he is released into her care. If Ms. Douglas takes the return of Harley and Stroker, she must first arrange and pay for the cost the spaying of Stroker. If Ms. Douglas takes both Harley and Stroker into her care, she must ensure that the two dogs are not walked together or allowed to roam outdoors together unless each are in an enclosure described previously in this order. [ 86 ] Ms.

Douglas must at her own expense seek the advice of a professional dog behaviourist for both the dogs; Stroker and Harley, if she takes both into her care. [ 87 ] Ms. Douglas must provide the District or other relevant animal control authorities, with proof of having complied with this condition no less than eight weeks of Harley being released into her care. [ 88 ] Ms. Douglas must ensure she has adequate homeowner's insurance in the event of any future incidents. [ 89 ] Ms. Douglas must never leave Harley alone, with or in the care of a minor, or any person not having knowledge of this order. [ 90 ] Ms.

Douglas must ensure that any person charged with the care and/or control of Harley will take all necessary precautions with him. [ 91 ] Ms. Douglas must immediately report to animal control officers in her area if Harley has, a), bitten or attacked any person or animal; b), become at large; or c), been sold or given away or deceased. [ 92 ] Ms. Douglas must at all times keep animal control officers in her area apprised of Harley's residence. In the event Ms.

Douglas moves from her present proposed residence, she will first advise animal control officers, and if requested, will enable animal control officers to inspect any residence in which she resides with the dog Harley from time to time upon receipt of reasonable notice. [ 93 ] Ms. Douglas will not unreasonably deny animal control officers a chance to inspect her residence at any time if there are reasonable grounds to suspect Ms. Douglas is in breach of this order. [ 94 ] In the event Ms.

Douglas is found to have breached one or any terms of this order, she will, if Harley has not been impounded, surrender him immediately for euthanasian. [ 95 ] If the dog, Harley, bites or otherwise attacks a person or a domestic animal, Ms. Douglas will immediately surrender him to animal control officers in her area for euthanasian. [ 96 ] Ms. Douglas may well find these conditions onerous.

It is open to her to give Harley up to the District, whereupon I would authorize the District to humanly euthanize Harley if the District could not be satisfied there were any reasonable prospect of rehoming this animal within a reasonable period of time. No one would, or could, criticize Ms. Douglas for such

an act. For the reasons given, Stroker should be returned to Ms. Douglas. [ 97 ] Finally, as the party's success was divided, I would not award the District its costs in this hearing.

(REASONS FOR JUDGMENT CONCLUDED)