City of Campbell River v. Awad Date:, 2016 BCPC 431

Citation: City of Campbell River v. Awad Date: 20161208 2016 BCPC 431 File No: 40732-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF AN APPLICATION BY THE CITY OF CAMPBELL RIVER PURSUANT TO

SECTION 49 OF THE COMMUNITY CHARTER SBC 2003, c.26 AND

SECTION 707.1 OF THE LOCAL GOVERNMENT ACT RSBC 1996, c. 323 BETWEEN: CITY OF CAMPBELL RIVER APPLICANT AND: FADI AWAD RESPONDENT RULING ON APPLICATION OF THE HONOURABLE JUDGE C. CROCKETT

Counsel appearing for the City of Campbell River: Mieko Bond Counsel appearing for Fadi Awad: Matthew R. Low Place of Hearing: Campbell River , B.C. Date of Hearing: October 27, 2016 Date of Judgment: December 8, 2016 [ 1 ] This is an application by the Animal Control Officer for the City of Campbell River for an order that Annie, an 18-month old Pit Bull terrier type dog, be destroyed. [ 2 ] On October 27, 2016, this application proceeded by way of a hearing on an agreed statement of facts, a book of evidence containing affidavits and an expert report, and a case book. The parties agree that Annie meets the definition of a dangerous dog pursuant to s. 49 of the Community Charter , SBC 2003,

Chapter 26 , because she killed a domestic animal in a public place. [ 3 ] The issue for me to determine is whether I should order that Annie be euthanized, or whether I should make an order that she be returned to Mr. Awad, under conditions to address the safety of the community. The parties agree, and the case law supports, that I have jurisdiction to make either order: see Capital Regional District v. Kuo 2006 BCSC 1282 , Capital Regional District v.

Kuo 2008 BCCA 478 (the Court of Appeal declined to hear appeal because the dog had been destroyed so the dog’s owner was not present to make submissions); Smith v. Central Okanagan ( Regional District ) 2013 BCSC 228 ; and, Central Okanagan ( Regional District ) v . Panton 2016 BCSC 69 . [ 4 ] On August 1, 2016, at approximately 10:47 a.m., Mr. Fadi Awad was sitting on the front steps of his house with Annie. At the same time, Ms. Carol Strachan was walking her seven year old Chihuahua, Mya, on leash, on the opposite side of the road from Mr. Awad’s house. Mr. Awad’s friend drove into his driveway. Mr.

Awad released Annie to greet the friend. Before the friend got out of his car, Annie ran through the open gate, across the street, directly towards Mya. Mr. Awad ran after her. Annie struck Ms. Strachan on her way towards Mya, causing Ms. Strachan to lose her balance. Annie then grabbed Mya in her mouth, closed her jaws, and shook her. [ 5 ] Mr. Awad jumped on Annie and removed Mya from her mouth. Mya died at the scene. [ 6 ] This was a traumatic experience for Ms. Strachan. In a statement I have read, she described herself as devastated at the time, and very upset since the incident.

She said Mya was more than just a dog to her, she was her companion and friend, and she motivated her to get out for walks. [ 7 ] Mr. Awad was immediately apologetic and has taken responsibility for this incident. He has not minimized the significance of the event, nor made excuses. He is committed to complying with conditions the Court deems necessary so that Annie may be returned to his care. [ 8 ] Annie has been in the care of Coastal Animal Control Services in Campbell River since August 1, 2016. [ 9 ] I have been provided with a report by Ms. Lisbeth Plant. She was retained by Mr.

Awad to serve as an expert witness. She states in her report that she is aware that her duty is to assist the Court and not to advocate for either party. Her resume has been filed along with her report, so I will not detail her qualifications here. Both parties agree that I may consider her report. She is an expert in canine behaviour and training. I note she has been qualified as an expert in similar court proceedings on at least three prior occasions. She assessed Annie and made some recommendations. [ 10 ] Ms.

Plant states in her report that it is not possible to predict with 100% accuracy how a dog will react to any given situation in the future. She agreed that Annie is a dangerous dog, and that she may bite if exposed to similar situations in the future. [ 11 ] She tested Annie by using decoy dogs and a child-like doll to see if she would bite. Annie did not bite the decoy dogs, however she did bite a decoy doll. She pointed out, however, that she placed Annie under considerable stress in this incident by cornering her with the doll and pushing it towards her. Ms. Plant described this as fear biting.

This is contrasted with her actions in biting Mya, which Ms. Plant described as prey drive. [ 12 ] I viewed the videos of Annie and the doll. She clearly bites the doll in the face and hands. While it is disturbing that Annie bites the doll, Ms. Plant points out in her report that dogs will often respond differently to the doll, and decoy dogs, than they will to real dogs or children. For example, she provided a video of her own dog, who is very well socialized, who appeared to be afraid of the doll, and tried to avoid it.

She also contrasted Annie’s behaviour with a video of another dog who had an opportunity to retreat from the doll, but chose instead to advance towards the doll, then pin it to the ground. Annie’s behaviour must be considered in this light. [ 13 ] In addition, I have been provided with affidavits from several acquaintances of Mr. Awad who state that they have observed Annie play well with large and small dogs, and with small children. Annie also lived with a cat at Mr. Awad’s house. Annie and the cat get along well, and even sleep together at times. [ 14 ] Ms. Plant made several recommendations in her report.

First, Mr. Awad should modify his home to ensure it is safe, including:

1. an air lock door system, so that entry and exit to the house require Annie to go through two sets of doors; 2. a six-foot high fence with wire at the top; 3. a room that locks so Annie can be secured if children or other dogs visit the home. [ 15 ] Mr. Awad has made, or is in the process of finishing, these modifications to his house. [ 16 ] Ms. Plant recommended that Annie be muzzled and on two leashes whenever she walks off Mr. Awad’s property. [ 17 ] She stated that these precautions may affect the quality of life of a dog.

Segregating a dog to an extreme extent can create more problems, such as what she calls secondary and fear aggression. It is incumbent on the owner to provide sufficient stimulation for the dog to ensure she remains emotionally well-balanced. [ 18 ] She further recommended a behaviour modification program, including a veterinary examination, and twenty private lessons with a trainer under the supervision of a veterinary behaviourist. [ 19 ] Ms. Plant met with Mr. Awad and noted that he was clearly attached to Annie. He visits her almost daily at the shelter. He has started muzzle training with her.

In her report, she stated key components to a successful behaviour modification program include the patience, consistency and resources of the owner. An owner must commit time and money, over a long period of time, to the rehabilitation of the dog. [ 20 ] I reviewed an affidavit sworn by Mr. Mick Howland. His qualifications are attached to his affidavit. He is a certified trainer and plans to work with Mr. Awad under the supervision of a veterinary behaviourist. He is approved by Ms. Plant. [ 21 ] Mr. Howland made observations of Annie during a visit to the shelter.

He noted that she was quick to learn and had good bite inhibition. He said she was quick to release toys, and she was sociable with other dogs and people. He noted, in particular, that a rabbit lived under some building material at the end of a fenced enclosure. Annie looked for the rabbit through a ground level window but remained calm. When released into the enclosure, she displayed what he described as normal curiosity, sniffing to locate the rabbit, but didn’t show much interest. He said she accepted the muzzle and wore it with no change in demeanour.

He believes the likelihood of success with Annie is excellent. [ 22 ] Mr. Awad has had two sessions with Mr. Howland, as of his appearance in court, and has paid for five sessions in advance. [ 23 ] The parties have provided me with several cases where orders have been sought by animal control agencies to have dogs destroyed. The cases include situations where dogs have bitten people, and bitten or killed other dogs. In each case, an expert provided evidence about the likelihood of the dog being rehabilitated.

The courts heard evidence about the character of the owner, so judges could assess whether it would be safe to return the dog to the owner’s care. [ 24 ] In some cases, the dogs were considered too dangerous to be cared for except under the most extreme segregation, and were ordered to be destroyed. In others, the dogs were not immediately destroyed, but were not returned to the owners. In those cases, the court stayed the destruction order for a period of time for the animal control agencies to find a suitable home for the dog.

Finally, there were cases where the dogs were returned to their owners, under strict conditions. In one case, the court ordered a stay of the destruction order for one year, to allow the owners to prove that they would comply with conditions placed on them by the court. [ 25 ] It is important, given the community’s concern about an attack such as this, to explain the law that binds this court. Members of the public have a right to feel safe from dangerous dogs in the community. There are those who believe that all Pit Bulls ought to be banned. Others believe that no dog should ever be destroyed.

It is incumbent on me to apply the law, and not base my decision on sentiment, or fear. I must balance the protection of the public with the property rights of the owners of dogs. [ 26 ] In New Westminster Animal Control Officer v. Letendre 2010 BCPC 38 , Judge Woods ordered that a Pit Bull Cross be euthanized. The dog bit a four year old girl, after she had petted him, and was walking away. The prospects for the dog’s rehabilitation were poor, and the owner was found to have been dishonest about the circumstances of the attack.

J udge Woods stated the court’s duty as follows, at paragraph 61: The cases to which I have adverted above show that s. 49(10) of the Community Charter , by necessary implication, requires that I conduct a balancing of the public’s interest in being reasonably safe and secure against the interest of Mr. Letendre, as the owner of the Subject Pit Bull Cross, in ensuring that the animal that belongs to him is not put down unnecessarily where reasonable alternatives exist.

I cannot allow just any risk to trump, automatically, those latter considerations; else the balancing will be a balancing in name only. [ 27 ] He continued, at paragraph 66 to say: The unique temperament and attributes of the Subject Pit Bull Cross in the case at bar elevate the risk of a calamitous outcome for an unwitting victim to such a level that, in my view, it is almost inconceivable that any practically workable measures could be designed that could properly balance out the risk … I do not consider that it would be fair or just for me to make an order prescribing extraordinary containment and other measures, akin perhaps to those designed to restrain the notorious Hannibal Lecter in the film The Silence of the Lambs , that would require the municipal government of New Westminster to allocate resources at an extraordinary level and underwrite the costs of the same and still not necessarily eliminate the risk. [ 28 ] Judge Woods’s case can be contrasted with City of Burnaby v.

Nagra 2010 BCPC 34 . In that case, a Pit Bull terrier pulled away from its owner, while on leash, knocked an elderly man to the ground, and killed the small white dog he had been holding. Judge Dillon reviewed the evidence before her, including evidence about the nature of Pit Bulls in general. She noted that the dog was described as a likeable and controllable animal by the Animal Control Officer who had cared for him after the incident. Judge Dillon concluded, at paragraphs 30 and 31:

It is clear on the evidence that the behaviour of dogs cannot be predicted, and pit bull terriers in specific rarely show warning signs of an impending attack. It is not maliciousness or intent on the part of the dog, but simply a prey drive which is an inherent drive that causes a pit bull terrier to seek and kill when stimulated. Once such a drive has been awakened, the evidence of Ms. Millar [a dog behaviour expert] was that there is a greater risk of re-offence; therefore past good behaviour is a factor, but it is not necessarily a weighty factor in a case such as this.

More relevant, in my view, is the fact that the Nagras are highly motivated owners who experts believe can be trained to handle and control their dog. They have accepted personal responsibility for their dog’s dangerous conduct by having apologized quickly and before the City’s legal proceedings were commenced. They apologized to [the dog’s] owner and apparently they have expressed their sorrow for their dog’s behaviour. They have taken proactive steps to build a secure pen on their property and this was done shortly after the incident.

They have also taken training with [a dog trainer] and have retained another expert … to continue with a planned program of safety management. I find and conclude that they are responsible dog owners who have shown a marked determination to do all that is right to address the public safety concerns in this case. [ 29 ] Judge Dillon went on to make an order of destruction, but stayed it for one year, to allow the owners to comply with conditions she imposed. [ 30 ] The law requires that I balance the public’s interest in being reasonably safe and secure from a dangerous dog, against Mr.

Awad’s property interest in Annie. “Property interest” is a legalistic way to describe ownership of a dog. This description is not meant to diminish the feelings that both Mr. Awad and Mya’s owner, Ms. Strachan, have for their pets. But, as mentioned, the Court must rule on the law, not sentiment. On the other hand, I must not permit Annie to be destroyed upon the basis of any risk at all to the public. [ 31 ] I have considered the assessment of Annie’s temperament by Ms. Plant, and, to a lesser degree, by Mr. Howland. They agree she poses a risk. But as compared with other dogs tested by Ms.

Plant, and those considered by judges in other cases provided to me by counsel, Annie poses less of a risk than those that were euthanized. She also poses less of a risk, from my reading of the cases, than some of the dogs who were not ordered to be destroyed. [ 32 ] In addition, in contrast to the owners in some of the other cases, Mr. Awad has attributes in his favour. First, he has not minimized the damage that Annie has done and has accepted full responsibility for her actions. Second, he has shown a high level of personal commitment to being a responsible dog owner. He has renovated his home to make it safe.

He has visited Annie daily and has started training with Mr. Howland. He has hired Ms. Plant and his lawyer, and has come to Court to advocate for Annie. He has agreed to complete any training or behaviour modification recommended by Mr. Howland. In short, he has committed a significant amount of time and money to Annie - far beyond what many dog owners would undertake. [ 33 ] In these circumstances, given the prognosis for Annie, the dedication of Mr.

Awad, and the conditions both counsel have agreed should be in this Court’s order to protect the safety of the public, I will not make an order that Annie is to be destroyed. [ 34 ] I will make an order on substantially the terms sought by both counsel. Both provided a draft order with nearly identical terms. Their one point of disagreement is that the City wants me to make an order that if Annie were to seriously injure or kill another dog or person, she must be euthanized, without further order of this Court. [ 35 ] I will not make such an order in this case. Counsel for Mr.

Awad pointed out that there are circumstances in which it might be reasonable for a dog to injure another animal or person, such as if another dog attacked Annie, or there were an intruder in Mr. Awad’s house. I will, however, order that if Annie attacks or bites a person or a domestic animal, the event must be reported by Mr. Awad. [ 36 ] Accordingly, I make the following order: THIS COURT ORDERS that Fadi Awad is solely responsible to prevent Annie from being at large and posing a threat to either domestic animals or people, pursuant to the following conditions: 1.

Fadi Awad, his agents, friends, family or any person who exercises care and control over Annie must: a. indemnify the City of Campbell River, animal control authority and any other local government in British Columbia, or elsewhere in Canada having jurisdiction over animal control where Annie resides or may reside in the future (the “Local Government”), their agents, servants and employees, from any claim, which may arise from the date of this Order, involving bites or attacks committed by Annie, whether commenced as an action or otherwise; b. ensure that Annie, while on the Property or any other property at which Annie may reside (“Future Property”), is either: i. confined inside the house, and the house is equipped with an air lock front door, and lock on the bedroom door; or ii. confined outdoors with a six foot high fence around the Property or Future Property where Annie may reside, secure from digging, with barbed wire on top of the fence and a padlock on the fence gate. c.

Annie is only to be released to Fadi Awad when the modifications to his Property listed in subparagraphs i. and ii. above are completed and confirmed as implemented by an Animal Control Officer for the City of Campbell River; d. at all times keep Annie leashed, muzzled and under effective adult control when outside of the Property or Future Property; e. not permit, allow or fail to prevent Annie from being at large, which is defined as being off leash while outside of the Property or Future Property;

f. report to the Local Government any attack or bite on persons or domestic animals involving Annie, whether or not Annie is at fault and whether or not injury occurs, within 24 hours of knowledge of the event; g. notify the Local Government of the death of Annie, including if Annie has gone missing and of the surrounding circumstances, within 24 hours of knowledge of the event; h. not allow the transfer, release, adoption or change of ownership of Annie to any person not approved by the Local Government; i. if Fadi Awad chooses to cease ownership of Annie, she must be voluntarily surrendered to the Local Government or one of its agents. 2.

Within twelve months of the date of the Order, Fadi Awad must participate in and successfully complete any training and/or behaviour modification recommended by “Pets Stay Home Training and Care” and provide proof of successful completion to an Animal Control Officer for the City of Campbell River. AND THIS COURT FURTHER ORDER S that the Local Government or one of its agents may enter upon the Property or Future Property at reasonable times to ascertain whether the requirements of this Order are being met and observed.

AND THIS COURT FURTHER ORDERS that if Fadi Awad fails to abide by the terms of this Order as determined by the Local Government, including one of its agents or Animal Control Officers, then an Animal Control Officer may take custody of Annie. If deemed necessary by an Animal Control Officer, he or she may be accompanied by a member of the RCMP, or another peace officer, in order to take custody of Annie. In such circumstances, an Animal Control Officer will notify Fadi Awad in writing, within 48 hours, that they have taken custody of Annie.

Fadi Awad will have fourteen days from receiving such notice to file with this Court a request for a hearing as to whether or not Annie should be destroyed. The Honourable Judge C. Crockett Provincial Court of British Columbia