New Westminster Animal Control Officer v. Letendre Date:, 2010 BCPC 38

Citation: New Westminster Animal Control Officer v. Letendre Date: 20100422 2010 BCPC 0038 File No: 72546-1 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA In the matter of

section 49 of the Community Charter, S.B.C. 2003, c. 26 And in the matter of an application to destroy a male pit bull terrier cross dog BETWEEN: THE ANIMAL CONTROL OFFICER FOR THE CORPORATION OF THE CITY OF NEW WESTMINSTER APPLICANT AND: DOUGLAS LETENDRE RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Applicant: D. Howieson Appearing on his own behalf: D. Letendre Amicus curiae: L. Salmond Place of Hearing: New Westminster, B.C.

Dates of Hearing: May 8 and August 13, 2009; March 16-17 and April 6, 2010 Date of Judgment: April 22, 2010 INTRODUCTION AND PRELIMINARY MATTERS [ 1 ] The Animal Control Officer for the Corporation of the City of New Westminster (the “New Westminster ACO”) has brought application, pursuant to s. 49(10) of the Community Charter , S.B.C. 2003, c. 26 , for an order that a male pit bull terrier cross dog known as “Snoopy” (the “Subject Pit Bull Cross”), belonging to the respondent and New Westminster resident Douglas Letendre (“Mr. Letendre ”), be destroyed. Mr.

Letendre opposes the application. [ 2 ] The application is based primarily on the New Westminster ACO’s contention that the Subject Pit Bull Cross is a “dangerous dog” as that term is defined in s. 49(1) (

a) and (

c) of the Community Charter . It is also contended that the Subject Pit Bull Cross is a “vicious dog” as that term is defined in the Corporation of the City of New Westminster’s Animal Control Bylaw No. 7037, 2005 (as amended). [ 3 ] The New Westminster ACO’s application arises mainly out of a child-biting incident that occurred in August 8, 2008 which I shall describe more fully below in these reasons. The Subject Pit Bull Cross was seized from Mr. Letendre at his apartment on Royal Avenue some time thereafter on January 20, 2009. No issue has been taken with the lawfulness of the seizure.

The Subject Pit Bull Cross has since that time remained in the custody of the New Westminster ACO, at the New Westminster municipal animal shelter, where its propensity to display aggressive behaviours toward adults, children and animals has been assessed by one Nancy Millar (“Ms. Millar”) for the purposes of this proceeding. [ 4 ] I pause here to make three parenthetical points.

[ 5 ] First, by reason of unexplained lateness on one day and complete non-attendance (also unexplained) on another, Mr. Letendre took

part in only a portion of the hearing of this matter. His erratic and unreliable participation came on the heels of previous adjournments granted at his request. The hearing proper proceeded partly in his absence only after I received assurances from the court registry that he had received the required notice of the dates and times of the hearing and its continuation date. [ 6 ] Second, partway through the proceedings, Ms. Louise Salmond became aware of this application and of some of Mr. Letendre’s difficulties in opposing it, given that he is a layman who struggles with personal challenges of his own.

She helpfully stepped into the breach as amicus curiae . Ms. Salmond sought and obtained an adjournment so that she might review the audio recordings of the proceedings taken to that point, confer with Mr. Letendre , review the disclosure materials provided to Mr. Letendre , discuss certain points with Mr. Howieson (counsel for the New Westminster ACO) and generally prepare to act in this matter. She also requested that the New Westminster’s ACO’s expert witness, Ms. Millar, re-attend for further cross-examination. The adjournment and all of Ms. Salmond’s ancillary requests were granted with the consent of Mr.

Howieson . [ 7 ] The third parenthetical point that I wish to make is that, between the time of the most recent adjournment and the hearing’s resumption, Ms. Salmond sought and obtained the permission of Mr. Howieson and his client to permit an independent assessment of the Subject Pit Bull Cross to be performed by an expert of her choosing. As is her right, she declined to introduce the report of that expert, or to call the expert to give viva voce testimony regarding his or her opinion. I, in turn, rejected Mr. Howieson’s argument that disclosure of the opinion of Ms.

Salmond’s expert ought to be compelled as a quid pro quo for the New Westminster ACO’s cooperation in making the Subject Pit Bull Cross for independent assessment. Mr. Howieson conceded that no such requirement had been stipulated as a condition for making the animal available to Ms. Salmond’s expert for assessment and, on ordinary principles, the expert’s report and opinion overall are privileged—as a part of Ms. Salmond’s solicitor’s brief—unless privilege over that report and opinion is waived: see, generally, Expert Evidence in British Columbia Civil Proceedings, 2 nd ed. (Vancouver: CLEBC, 2005).

No waiver having occurred, Ms. Salmond is fully within her rights to keep her expert’s opinion confidential and safely stowed in her solicitor’s brief. [ 8 ] Ordinarily, the fact that Ms. Salmond has commissioned an expert assessment which, for whatever reason, she has declined to introduce into evidence would never have come to my attention. For the reasons I have given above, its existence is now known to me. Having ruled against Mr.

Howieson’s application to compel its disclosure, I have done all that I need to do in relation to that privileged expert opinion and, for the purposes of the main decision I am called upon to make in this matter, I have disabused my mind of the fact that a defence expert assessment was ever performed. [ 9 ] I return now to the positions of the parties on the merits of this dispute. Ms. Salmond argues that there is an insufficient foundation of reliable evidence to support a finding, by the court, that the Subject Pit Bull Cross is a “dangerous” or “vicious” dog under the applicable legislation.

She further argues that steps falling short of an immediate destruction order could be prescribed by the court that would adequately manage any risk that the dog may pose to members of the public in its home community of New Westminster. THE AUGUST 2008 CHILD-BITING INCIDENT [ 10 ] Central to the New Westminster ACO’s application is the child-biting incident noted above that occurred in August 2008 outside Mr. Letendre’s apartment building. The evidence of the witness to that incident called by the New Westminster ACO conflicts in important ways with that given by Mr. Letendre on his own behalf.

I must, therefore, determine which of those accounts is the more credible. Mr. Chibry’s Version [ 11 ] On August 8, 2008, Mr. Letendre and a Wayne Michael Chibry (“Mr. Chibry ”) both resided in the same apartment building on Royal Avenue in New Westminster. Mr. Chibry was called as a witness by the New Westminster ACO. [ 12 ] On the day in question, Mr. Chibry —a single parent—had just been delivered his four-year old daughter (“ Carly ”) by his former spouse for an access visit. Mr. Letendre was standing nearby, outside the apartment building, and had the Subject Pit Bull Cross with him while Mr.

Chibry and his ex-wife carried on a discussion. [ 13 ] Mr. Chibry had seen the Subject Pit Bull Cross before—sometimes on a leash and sometimes not—but Carly had never interacted with the dog prior to August 8, 2008. On that day, Mr. Letendre did not have the Subject Pit Bull Cross muzzled or on a leash; rather, he held the dog by the collar and had its leash in his other hand. [ 14 ] Mr. Chibry testified that he has taught his daughter Carly to be generally wary of unfamiliar dogs and to approach them with caution.

He said that he had specifically taught her to extend her hand and allow an unfamiliar dog to sniff it before moving nearer. [ 15 ] While Mr. Chibry and his ex-wife were having their discussion, Carly asked her father if she could pet the Subject Pit Bull Cross. Mr. Chibry replied that she could, so long as she was careful and followed the practice of holding out her hand first before moving closer. His testimony was that, as all of the adults observed her, she did exactly that. He said that the Subject Pit Bull Cross proceeded to sniff her hand, as expected, when she extended it.

He further testified that the dog then allowed her to stroke its head and back, and that it showed no signs of annoyance or aggression while she did so. When the interaction came to an end and Carly turned and began to walk back toward her father, the Subject Pit Bull Cross lunged unexpectedly at her and gripped her left buttock and upper thigh area tightly between its jaws. Her reaction was described by Mr. Chibry as one of “shock and disbelief”. She cried out in pain and fear. Mr. Letendre managed to separate the dog from Carly almost immediately, before he could begin to shake or thrash, apologising to Mr.

Chibry and his ex-wife and saying that the Subject Pit Bull Cross had never bitten anyone before. [ 16 ] Mr. Chibry testified that he was, at first, not greatly concerned. However, about 15 minutes after the attack, he examined Carly’s buttock and thigh and saw that deep bruising was beginning to show. There were also some slight tearing abrasions, though not punctures, visible on her skin corresponding to the placement of the teeth of both of the Subject Pit Bull Cross’s jaws. Photographs confirming Mr. Chibry’s testimony in this regard were entered into evidence at the hearing. Mr. Letendre’s Version

[ 17 ] Mr. Letendre testified that the “discussion” between Mr. Chibry Carly’s mother was, in fact, a voluble dispute that caused the Subject Pit Bull Cross to become agitated. While the argument was underway, Mr. Letendre testified, Carly patted the dog and then bent down and blew a kiss at it. This blowing in the face of the Subject Pit Bull Cross further agitated the animal, he said, and it immediately “nipped her on the bum” in response to the unwelcome, blowing stimulation. Which Version is More Credible? [ 18 ] I first observe that Mr. Letendre does not dispute that the Subject Pit Bull Cross bit the child.

Although he seeks to minimise the significance of the bite by characterising it as “nip”, the photographic evidence tells a very different story. Mr. Letendre’s credibility as a witness in this matter was not enhanced by the giving of testimony that was so plainly at odds with the deep bruising and surface tearing that is visible in the photographs of Carly’s buttock and upper thigh. [ 19 ] To the extent that Mr. Chibry’s and Mr. Letendre’s accounts of the biting incident diverge, I will say straightaway that I have little hesitation in accepting the version of the incident given by Mr.

Chibry as the more credible of the two. [ 20 ] I find it highly improbable that, at a time when Mr. Chibry and his ex-wife were engaged in a noisy and disturbing argument, either he or Mr. Letendre would permit a four-year-old to approach and attempt to interact, for the first time, with the Subject Pit Bull Cross. The prevailing, unsettling conditions that Mr. Letendre described would be manifestly unsuitable for such a first encounter between a vulnerable child and an unfamiliar dog recognisably fitting the pit bull description. As Mr.

Letendre said himself, open conflict “bothers” the Subject Pit Bull Cross and this particular dog has a history of problems interacting with children because it was tormented and abused by children when it was in the care of a previous owner some six or seven months earlier. For Mr. Letendre to contend that either he or Mr. Chibry would allow Carly to approach an unfamiliar pit bull at close range, face to face as it were, while an animated disagreement between her parents was unfolding nearby simply does not make sense. [ 21 ] Neither can I easily reconcile Mr.

Letendre’s version—in which Carly allegedly bent down and (unwittingly) irritated the dog by blowing in its face—with the fact that the child was bitten on her behind. [ 22 ] In making the comparative credibility assessment that I must make in this case, I bear in mind the helpful words of O’Halloran J.A. concerning evidence that appears to offend against the dictates of common sense. As his Lordship expressed it in Faryna v.

Chorny , 1951 CanLII 252 (BC CA) , [1952] 2 D.L.R. 354 (B.C.C.A.) , where two versions of an event differ, generally the more credible of those versions will be the one that is consistent with “the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable” in the circumstances (at p. 357). Mr. Letendre’s account does not pass muster according to that sensible test. It lacks an air of reality. [ 23 ] For these reasons, I find as facts that—as Mr.

Chibry testified— Carly approached the Subject Pit Bull Cross with her hand outstretched and under close scrutiny by all of the adults present. Whatever discussion may have been ongoing in the background it was not a discussion in the nature of an animated and noisy disagreement. The dog sniffed Carly’s hand and only after it had done so did she begin to stroke it on the head and back. The Subject Pit Bull Cross accepted this affectionate touching without any visible indications of annoyance or agitation.

To the great astonishment of everyone, when the interaction seemed to have ended and Carly had turned away from the Subject Pit Bull Cross and was walking back toward her parents, the dog lunged at the child and clamped its jaws down hard on her clothed buttock and upper thigh, causing deep bruising and surface tearing of the skin but no puncture wounds. Mr. Letendre quickly intervened, apologised, gained control of the Subject Pit Bull Cross and separated it from the child.

OTHER RELEVANT FACTS [ 24 ] Some other facts that were established by the evidence are also germane to the decision I am required to make in this case. Facts Established by the Lay Witnesses and Exhibited Documents [ 25 ] The additional facts established by the lay witnesses and exhibited documents are largely uncontroversial. I summarise them as follows: (

a) The Subject Pit Bull Cross has a blended, and not precisely-defined, lineage that includes a substantial “bully breed” component. “Bully breeds” include bull terriers, Staffordshire terriers and like strains often referred to compendiously as “pit bulls”. Mr. Letendre did not dispute that the animal is part “pit bull terrier”—a non-scientific descriptor to be sure but a term that, as noted, is commonly used to describe certain pure- and mixed-breed dogs whose genetic origins can be traced to one or more of the bully breeds; (

b) The Subject Pit Bull Cross shows some characteristics of the Argentinean Dogo —another bully breed that may figure in its lineage; (

c) By reason of its bully breed lineage alone, the Subject Pit Bull Cross qualifies as a “vicious dog” under

Schedule “A” to the New Westminster Animal Control Bylaw . As the Subject Pit Bull Cross’s owner and a New Westminster resident, Mr. Letendre was obliged to comply with certain animal control requirements for such dogs imposed by the bylaw, including muzzling whenever the dog was not securely confined within his own premises; (

d) Mr. Letendre failed to comply with the New Westminster Animal Control Bylaw muzzling requirement on a number of occasions. He received a municipal ticket in this regard on August 8, 2008—the date of the child-biting incident described above—and on two occasions thereafter in the fall of 2008 before the Subject Pit Bull Cross was finally seized in January of 2009. Fines were imposed and the time for disputing the offences passed without Mr. Letendre raising any challenge to them. In the result, his conviction on all three muzzling bylaw charges is deemed; (

e) At the time of the August 2008 child-biting incident, the Subject Pit Bull Cross was outside Mr. Letendre’s own premises and was neither leashed nor muzzled; and (

f) At the time of the August 2008 child-biting incident, the Subject Pit Bull Cross was approximately three years old. It had been in

Mr. Letendre’s care for six or seven months. To Mr. Letendre’s knowledge, the Subject Pit Bull Cross had previously belonged to owners who did not care properly for it; during that time, children tormented and abused it. This history caused the Subject Pit Bull Cross—by Mr. Letendre’s own admission—to “have a problem with children”. Facts Established by the Expert Witness [ 26 ] As has already been noted above, Ms.

Millar was tendered by the New Westminster ACO as an expert witness qualified to give opinion evidence concerning the assessment and training of aggressive dogs, including mixed- and pure-breed dogs demonstrating bully breed lineage, including the Subject Pit Bull Cross. She was also qualified to opine on the physical and behavioural characteristics of such dogs. I have no doubt that, by dint of her extensive training and experience, Ms.

Millar—who has given expert testimony in these areas before this court on other occasions—has acquired a solid base of knowledge within the domains where her opinion has been sought and that she has the practical ability to use her judgment in those areas: see R. v. Bunniss (1965) 1964 CanLII 673 (BC SC) , 3 C.C.C. 236 (B.C. Co. Ct.) and R. v. W. (R.J.) , [1989] B.C.J. 2739 (C.A.) (QL) . [ 27 ] The fact that Ms. Millar is an employee of the New Westminster ACO—a party to this proceeding—does not render her opinions inadmissible.

While that affiliation cannot help but qualify her independence and impartiality to some degree, that is a factor that goes to weight and not admissibility: see, for example, Lameman v. Canada (Attorney General) , 2006 ABCA 392 (CanLII) , [2006] A.J. 1603 (C.A.) (QL) , Woodruff v. Alloway coba True Colours Autobody and Restorations , [1999] B.C.J. 343 (S.C.) (QL) and Weatherford Canada Partnership v. Addie , [2009] A.J. No. 73 (Q.B.) (QL) . I will note, at this juncture, that I found Ms.

Millar to be a forthright and fair-minded witness who strove to give testimony unaffected by her involvement as an employee of the New Westminster ACO. I therefore consider the adverse impact of that affiliation upon the weight that I can accord to her testimony to be minimal. [ 28 ] Ms. Millar carried out a structured assessment of the Subject Pit Bull Cross in January, 2009.

Her knowledge of the dog and her opinions about it are also informed by her experiences dealing with it before the animal was seized, and by her frequent encounters with it over the period reaching from January 2009 to the present. [ 29 ] Based on its physical and behavioural characteristics Ms. Millar believes that the Subject Pit Bull Cross is a mixed breed dog with a bully breed lineage that—in additional to its “pit bull” heritage—also likely has the Argentinean Dogo breed represented in its ancestry.

While she did not purport to offer a definitive opinion on that point—one that would require complex genetic evidence—I am satisfied that her training and experience amply equip her to opine that the Subject Pit Bull Cross likely has one or more Argentinean Dogos among its forbears. [ 30 ] As she was qualified to do, Ms. Millar offered both general opinions about bully breed characteristics and behaviours and, as well, specific opinions about the Subject Pit Bull Cross.

I begin with a brief recounting of her opinions about the attributes of the bully breeds generally. [ 31 ] Dogs with a bully breed lineage display a high prey drive. This may be contrasted with many other breeds of dog which tend to respond to stimulation with what is known as a chase drive. A high prey drive reflects an animal’s propensity to hunt with intent to capture and kill. This instinctive behaviour is a prominent characteristic of the bully breeds. When stimulated, a dog with a high prey drive will chase and capture its prey and then bite and hold it with a view, ultimately, to killing it (as “prey”).

I understood the burden of Ms. Millar’s testimony in this area to be that when the prey drive is activated, the dog’s behaviour thereafter is largely reflexive and instinctive, and minimally under voluntary control. [ 32 ] Bully breed dogs have very wide and powerful jaws which enable them to grasp onto their prey very tightly. It is very difficult for such a dog to release its grip when stimulated. Bully breed dogs can, accordingly, inflict very serious bites which, in turn, can be made even more serious by shaking and thrashing.

Dogs displaying a high chase drive will, by contrast, more commonly bite and release their quarry. Their jaws and mouths are not as large or powerful as those of the bully breeds. [ 33 ] Bully breed dogs tend to display pre-cursors to prey drive behaviour—warning signs that they have been stimulated, if you will —in very subtle ways. These signs are easily missed, even by experienced dog handlers. Thus, the behaviour of bully breed dogs is inherently less predictable than that of the more demonstrative breeds. [ 34 ] Ms. Millar gave extensive opinion evidence about the Subject Pit Bull Cross at issue here.

Her report and testimony revealed that its troubling behaviours and attributes are—based on her observations and assessment—fully consistent with its bully breed ancestry and in some important respects magnified by its own life history. Ms. Millar’s observations led her to conclude that the Subject Pit Bull Cross has a very high prey drive indeed. [ 35 ] The structured assessment that Ms.

Millar conducted was not based upon a standardised protocol that has been scientifically tested and independently certified as a reliable instrument for evaluating the propensity of dogs, like the Subject Pit Bull Cross, to display aggressive and dangerous behaviours. Rather, it was a somewhat formalised observational assessment, involving some interactive components that Ms. Millar developed and applied based upon her long experience and training with dogs, and aggressive dogs in particular. During a skilful cross-examination Ms. Salmond probed Ms.

Millar’s evaluation methods and conclusion in this regard, to some effect. She also obtained answers that showed that Ms. Millar’s training in assessing aggressive behaviours was based on experience that was weighted somewhat in favour of the German Shepherd breed. But Ms. Millar’s experience overall with challenging and aggressive dogs was shown to be very broad and not breed specific; and while it may be the case that more formal and standardised measures for formally evaluating aggression potential in dogs exist, none were put directly to Ms.

Millar and, more importantly, no contrary expert evidence was put to her or otherwise tendered before me to suggest that what might be styled a clinical evaluation, as conducted by Ms. Millar, was prone to yield unreliable conclusions or likely to overstate the potential for the Subject Pit Bull Cross to present a danger to others. [ 36 ] Because of its behavioural characteristics and its history, the Subject Pit Bull Cross has, of necessity, been kept in relative isolation at the New Westminster animal shelter since it was seized in January of 2009.

This isolation obviously affects the dog’s behaviour and the conclusions that can be drawn from any assessment of it while it is being maintained under somewhat artificial (though benign) conditions. However, I am satisfied, based on her testimony that Ms. Millar accounted for the effects of that isolation

(both negative and positive) when forming her conclusions about the Subject Pit Bull Cross. [ 37 ] The evidence shows that the Subject Pit Bull Cross suffers with joint pain and discomfort originating in scarring from surgery done years earlier to deal with a crusciate ligament injury. When it is tense, one of its rear legs shakes as a result. The Subject Pit Bull Cross receives dietary supplements and other treatments to moderate this discomfort. It is otherwise under a veterinarian’s continuing care while in the shelter and all of its medical needs are attended to. I am satisfied that here, too, Ms.

Millar was properly cognisant of, and accounted for, the role that pain and other health concerns (possibly transient) may play in the dog’s overall behavioural profile. [ 38 ] Somewhat surprisingly, no steps have been taken to have the Subject Pit Bull Cross neutered. Ms. Millar did not disagree with Ms. Salmond , when cross-examined on the point, that diminished testosterone in the bloodstream following neutering might lessen a dog’s aggressive behaviours to a degree. But neither did Ms.

Millar say that the fact that the Subject Pit Bull Cross might be neutered in the future would cause her to alter her assessment of it or cause her to lose faith in the predictions she made about the challenges that lie ahead in terms of managing the serious risk to children and adults that the Subject Pit Bull Cross poses. [ 39 ] Of particular importance in the conclusions that Ms. Millar reached about the Subject Pit Bull Cross, after carrying out her assessment of it, are these: (

a) It has a particularly high prey drive; (

b) It reacts immediately and aggressively to all forms of stress; (

c) It responds immediately and aggressively to strangers and children; (

d) Contrary to what is seen in most dogs—even those within the bully breeds—it responds particularly aggressively when confronted with human behaviour that is submissive and non-threatening; (

e) Its “displays”—that is, its warning signs that it has become stimulated and is about to act in accordance with its prey drive—are extremely subtle and difficult to detect; and (

f) Trainability isn’t the issue—it cannot be trained to be safe. At best, the animal’s proneness to display extreme, prey-drive aggression might possibly be managed in a fully secured and essentially stress-free environment where it is isolated from other animals and people and cared for only by one or more highly-skilled professionals. [ 40 ] Some of the expressions that Ms. Millar used to describe the Subject Pit Bull Cross are telling.

She characterised the dog as “very much on the edge”; its dangerous behaviours are in some respects “unusual” and fall in the “extreme” range; it is “so terrified of failing that it doesn’t know what’s right”; it has “layers and layers of fear issues”; its “temperament is not completely sound”; and “when [it] gets to a level of drive, [it] loses [its] little mind”. [ 41 ] In summing up her opinion, Ms. Millar described the Subject Pit Bull Cross as a “very dangerous dog”.

Its prey drive, coupled with its history of abuse, leads it to respond rapidly and aggressively to the “friendly and non-threatening postures” that children and adults are routinely taught to adopt in order to place an unfamiliar dog at ease and reduce or eliminate the risk of an aggressive reaction. It will bite anything that it perceives to be weak or fearful, or that it considers may pose a threat to its owner. [ 42 ] Over the many months that have passed since Ms. Millar carried out her structured assessment of the Subject Pit Bull Cross, she has maintained regular contact with it.

She sees the dog and interacts with it daily. Her opinions, first formed in January of 2009, remain unchanged. She has in recent times seen the dog react quickly and with extreme aggression on those unusual occasions when other persons—most particularly children—have happened to pass by near its enclosure (as has occurred, on a couple of occasions, when a shelter staff member has brought her children in to work). [ 43 ] Given this profile, Ms.

Millar is pessimistic about the ability of anyone to structure an environment for the Subject Pit Bull Cross, and manage its behaviour, with sufficient effectiveness that the risk of it causing harm to others could be significantly reduced. When asked by Mr. Howieson what the dog’s prognosis was, she replied “Honestly, not very good”.

She observed that after many months in a very stable environment where it has been exposed to very few unfamiliar persons or animals and where its routines have been predictable and secure, the Subject Pit Bull Cross remains markedly unstable and “very highly prey driven”. [ 44 ] I found Ms. Millar’s expert opinion evidence to be of great assistance to me.

It placed in clear context the otherwise inscrutable facts of the August 2008 biting incident in which the four-year-old victim, Carly , was attacked by the Subject Pit Bull Cross when she was retreating from the animal, shortly after she had displayed friendly, submissive and consummately non-threatening behaviours of the kind that children are often taught to display in order to avoid provoking aggression on the part of unfamiliar dogs.

Seen in the context of the unique behavioural characteristics of its breed type and the abusive treatment the Subject Pit Bull Cross has suffered at the hands of children when in the care of its previous owner, with Ms. Millar’s assistance the dog’s seeming inexplicable conduct toward Carly comes clearly into focus. [ 45 ] Based on, and assisted by, Ms. Millar’s expert opinion evidence, I find—in the context of the facts established by the other evidence placed before me—the following additional facts about the Subject Pit Bull Cross: (

a) It is likely a pit bull terrier/Argentinean Dogo cross; (

b) By reason of its bully breed genetic makeup and its abusive and coercive upbringing, it displays (among other things) a very high prey drive. When stimulated, its instinctive (and to some degree involuntary) response is to capture and kill whatever stimulates it or causes it stress; (

c) Its large and strong jaws, coupled with its disinclination to release after biting, make it capable of inflicting very serious biting injuries;

(

d) The warning signals it displays when it is stimulated and prone to act on its high prey drive are very subtle and can easily go unnoticed; (

e) Unusually, because of its unique history, its high prey drive is stimulated by, in addition to conventional stressors, non-threatening behaviours on the part of other animals and humans—particularly children—that signal or communicate weakness or submission; (

f) It remains highly unstable, despite having been maintained in a stable and secure environment with a minimum of contact with unfamiliar adults, children, other animals or other sources of stress for a period of many months; and (

g) While neutering may diminish some of the risks, to some degree, in time, the Subject Pit Bull Cross is not properly seen to be trainable. At best it might be managed in a highly secure setting that essentially isolates it from the rest of the population if it is cared for by a person or persons highly-trained and skilled in aggressive dog handling.

THE APPLICABLE LAW Is the Subject Pit Bull Cross a “Dangerous Dog”? [ 46 ] Section 49(10) of the Community Charter empowers this court to make an order, on application by an animal control officer, for destruction of a dog if it is established that the animal control officer “has reasonable grounds to believe that a dog is a dangerous dog”. Mr. Short—the New Westminster ACO—testified at the hearing of his application that he believes that the Subject Pit Bull Cross is a “dangerous dog” and he cited in support of that belief (among other things) the conclusions reached by Ms.

Millar in her assessment of the animal. [ 47 ] “Dangerous dog” is a defined term within s. 49(1) of the Community Charter . The New Westminster ACO relies particularly upon paras . (

a) and (

c) of the statutory definition, which read as follows: “ dangerous dog” means a dog that (

a) has killed or seriously injured a person, * * * (

c) an animal control officer has reasonable grounds to believe is likely to kill or seriously injure a person.” [ 48 ] In my view, paragraph (

a) was intended to deal with clear cases that admit of little or no doubt. Where a dog has killed or seriously injured a person, there will usually be little room for argument that the dog is “dangerous”. In such cases, the majority of the court’s reasoning moves quickly past the initial “dangerous” designation and is concerned mainly with what order should be made to best manage the risk posed by the dangerous dog, having regard to all of the factors that the court must consider in that regard. [ 49 ] The case at bar, with respect, is not a clear case that admits of little or no doubt.

Without in any way trivialising the traumatic character of the August 2008 child-biting incident for Carly , I do not consider that it can be fairly said that she was “seriously injured” by the Subject Pit Bull Cross on that occasion as those words are used in s. 49(1) . She suffered injuries, without question. There was bruising, slight surface tearing and some transient psychological trauma. But there were no punctures and while she was taken to a clinic afterward for examination, I heard no evidence to suggest that Carly required immediate or ongoing medical treatment for her injuries. Even Mr.

Chibry did not take the incident particularly seriously until he checked, a quarter of an hour after it happened, and saw that deep bruising was beginning to become visible. [ 50 ] The cases that decide the question of whether a dog is “dangerous” on the basis of para . (

a) of the s. 49(1) statutory definition typically involve injuries that are manifestly more serious than those suffered by Carly here. Even in R. v. Whittle , [2005] B.C.J. No. 2833 (Prov. Ct.) (QL) —where the wounds were less severe than what are seen in most of those cases but still qualified as “dangerous”— the victim of the dog attack experienced puncturing of the skin on both sides of his abdomen. Those wounds continued to bleed for three days.

Whittle likely defines, or comes close to defining, the lower end of the spectrum of injuries that constitute “serious” injuries in this regard and I consider Carly’s injuries to be substantially less serious than those. For me to find that Carly’s injuries fit within para . (

a) of the s. 49(1) definition would, in my view, require me to impose a meaning on the words “seriously injured” that the “man on the [No. 106 New Westminster Station] omnibus” would not recognise and that the legislature cannot have intended them to bear: Hall v. Brooklands Auto-Racing Club (1933) 1 K.B. 205 . It follows that I cannot find the Subject Pit Bull Cross to be a “dangerous dog” as that term is defined in para . (

a) of the s. 49(1) statutory definition. [ 51 ] I have reached a different conclusion with respect to the s. 49(1)(

c) definition of “dangerous dog”—that is, a dog about which “an animal control officer has reasonable grounds to believe is likely to kill or seriously injure a person”. [ 52 ] As I have noted, Mr. Short, the New Westminster ACO and applicant here, testified that he believes that the Subject Pit Bull Cross is likely to kill or seriously injure a person. Having heard his evidence, and having surveyed the rest of the evidence placed before me and known to him including, most particularly, the expert evidence of Ms. Millar, I share Mr. Short’s belief in this regard.

I consider that his belief about the harm that the Subject Pit Bull Cross would likely cause to humans, given the opportunity, is grounded in reason and supported by the evidence which was available to him and that has since been placed before me. [ 53 ] The burden of that evidence is that, by reason of its breed characteristics and history of coercive treatment and abuse at the hands of children, the Subject Pit Bull Cross is particularly likely to have its high prey drive activated by children and cautious and wary adults.

The kinds of non-threatening behaviours that people (children especially) are taught to display in order to put an unfamiliar dog at ease are the very behaviours that are most likely to cause the Subject Pit Bull Cross to attack, responding instinctively and almost involuntarily to a primal impulse to kill prey. Potential victims are unlikely to be able to take effective action to spare themselves injury because the warning signals are difficult to read and self-protective manoeuvres—like retreating—are viewed by this particular dog as signs of weakness and are likely to increase the risk of an attack.

Beyond that, if the Subject Pit Bull Cross is given an opportunity to

attack, it has the strength, instinct-driven determination and anatomical hardware to inflict severe, life-threatening injuries in the course of a very short space of time. [ 54 ] A dog with these proclivities quite obviously poses a very real and marked danger and risk to all members of the population in the community where it resides. Apparently, the risk is greatest for vulnerable children and those adults who, unwittingly, might approach the animal in a friendly, non-threatening way or seek out of fear to retreat to a safe distance from it.

External controls— muzzling, secure containment and the like—represent the only safeguards that are theoretically available to control an animal like the Subject Pit Bull Cross and Mr.

Letendre’s lamentable record of non-compliance with the muzzling requirements of the Animal Control Bylaw reveals the limitations of regulatory measures as a source of de facto control of an animal of this kind. [ 55 ] In short, I am wholly satisfied that the evidence known to the court and the New Westminster ACO furnishes the latter with “reasonable grounds to believe [that the Subject Pit Bull Cross] is likely to kill or seriously injure a person” and that that animal therefore qualifies as a “dangerous dog” under para . (

c) of the s. 49(1) definition of the same. [ 56 ] Numerous case authorities were placed before me by Mr. Howieson in support of his contention that para . (

c) of the s. 49(1) definition of “dangerous dog” was met by the evidence tendered on behalf of the applicant New Westminster ACO in the case at bar. Each case turns, in large measure, on its own facts. I do not consider it necessary to say more, in this regard, than that I have read those cases and view the reasoning under which the dogs in those cases were declared dangerous as being broadly consonant with my reasoning here.

Is a Destruction Order Warranted? [ 57 ] In some cases where the jurisdiction to make a destruction order under s. 49(10) has been found to exist based on a “dangerous dog” finding, the courts have nevertheless considered and applied creative alternatives to the granting of a destruction order.

While there is no express jurisdiction to make “conditional” destruction orders coupled with stays of execution—that is, orders that open the door to arrangements being put in place that can have the effect of preserving the dangerous dog’s life provided satisfactory protection for the public can be assured—such a jurisdiction has been found to exist by necessary implication: see, for example, Capital Regional District v. Kuo , [2006] No. 1953 (S.C.) (QL), appeal dismissed on other grounds, [2008] B.C.J. No. 2237 (C.A.) (QL) . [ 58 ] Ms.

Salmond submitted that I ought not to find the Subject Pit Bull Cross to be a “dangerous dog”. As can be seen in what I have said above, I was unable to accede to that submission. She has further invited me to make something in the nature of a conditional order here in which I would specify conditions intended to enable arrangements to be put in place to spare the life of the Subject Pit Bull Cross and, at the same time, protect the public. I question whether I have jurisdiction to make any order under s. 49 regarding the future disposition of a dog if I do not make a threshold “dangerous dog” finding.

However, insofar as I have made such a finding in this case, that question can be left to another day. [ 59 ] The terms Ms. Salmond has submitted should be imposed include a requirement that the Subject Put Bull Cross be neutered, evaluated by a veterinarian for possible medications, and assessed again by a different dog behaviour specialist acceptable to the New Westminster ACO. The new assessment would be conducted with a view to revisiting the hazard assessment conclusions formed by Ms. Millar and possibly finding a placement with specified conditions where the animal could be safely kept. Ms.

Salmond conceded that, given his history of noncompliance with the Animal Control Bylaw and his other personal problems, Mr. Letendre could not realistically be viewed as a possible future provider of such a placement for the Subject Pit Bull Cross. [ 60 ] I must of course give serious consideration to the alternative that amicus counsel has passionately advanced. An animal’s life hangs in the balance, after all. Ms.

Salmond makes the point that the Subject Pit Bull Cross ought not to be required to pay the ultimate price for the mistakes that others have made in providing for its care, or because it displays behaviours that are characteristic of its breed lines. I have listened to and considered those arguments. [ 61 ] The cases to which I have adverted above show that s. 49(10), 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.

That said, I consider that it is appropriate that I give the public’s entitlement to be safe and secure from unreasonable and avoidable risk of coming to harm at the instance of this dangerous dog a heavy weighting in the analysis, given the demonstrated and proven propensity of the Subject Pit Bull Cross to inflict serious injuries, or worse, on children and other vulnerable members of the population of New Westminster without either provocation or warning. [ 62 ] I have read and considered all of the “conditional” order cases that have been placed before me.

Inasmuch as all are distinguishable on similar grounds, I shall make specific mention of only one. [ 63 ] City of Burnaby v. Nagra , 2010 BCPC 34 (CanLII) , 2010 BCPC 0034 is a very recent decision in which Dhillon P.C.J. found the pit bull terrier “ Cujo ” dangerous and made a destruction order. She did so after hearing evidence that Cujo had knocked an elderly man to the ground, injuring him, and killed the small dog he was carrying. Like the dog at issue in the case at bar, the expert evidence (given, as it happens, by Ms.

Millar) was that by reason of Cujo’s prey drive “it was highly probable that Cujo would again attack and kill another small dog … [and] may seriously injure or kill a person in the future” (at para . 8). [ 64 ] Dhillon P.C.J. noted in her reasons that—in contrast to the case at bar— Cujo was trainable and manageable by a good, lay handler. Also in contrast to the case at bar, the owners of Cujo were highly motivated to deal effectively with the risks posed by their dog and willing and able to undertake elaborate measures, at their own expense, to assure its containment and ongoing training. Importantly, Ms.

Millar made specific recommendations in this regard that the Nagras undertook to follow. On that basis the destruction order was stayed for a period of 12 months following which the respondent owners are free to reappear before Dhillon P.C.J. and tender evidence of what transpires during the 12-month trial period in support of an application to either rescind or cancel the destruction order. [ 65 ] It is plainly evident that the situation that the court faced in Nagra is distinguishable from that which the court faces in the case

at bar. The expert evidence was supportive of remedial measures in Nagra ; that is not the case here. The uniquely disturbing characteristics of the Subject Pit Bull Cross in the present case set it well apart from the attributes of Cujo , and from the attributes of all of the other dogs that were found to be “dangerous” but suitable for conditional orders in the cases I have considered.

Unlike any of those dogs, the Subject Pit Bull Cross—through no fault of its own and by reason of a deadly combination of breeding and abusive experience—has been determined by an expert assessor to be essentially untrainable and, by virtue of its high prey drive, likely to attack and possibly kill any quarry—including a child or unsuspecting adult—that displays, among other things, “friendly and non-threatening postures”, signs of weakness or a fearful inclination to retreat. Ms.

Millar, as the animal control officer’s expert in Nagra , was willing to recommend specific training and continuing measures for Cujo ; here she declined to make such recommendations for what, essentially, is an untrainable animal with unique characteristics (canvassed above) that make the risk, especially to children, an intolerable risk and render the dog’s overall prognosis poor. [ 66 ] 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.

Despite her valiant efforts, Ms. Salmond was unable to point to anything in the evidence before me that could persuade me that a future risk evaluation by another expert—conducted with or without intervening neutering—would generate different conclusions and recommendations than those provided by Ms. Millar. (While it is not determinative, I can see as well that the costs of any special, interim arrangements for containment, future assessment and the like that might be made in this case would be substantial and they would almost certainly fall at the feet of the Corporation of the City of New Westminster.

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.) ORDER AND DISPOSITION [ 67 ] I take no pleasure in making a destruction order knowing that it will bring the Subject Pit Bull Cross’s life to swift end.

But the evidence before me has persuaded me, on a balance of probabilities—the applicable standard—that nothing less than a destruction order will give the men and women of New Westminster the assurance they can rightly expect the court to provide them that they and their children will not be subjected to an unreasonable risk that the Subject Pit Bull Cross may find its way into their midst and seriously injure or kill one or more of them. [ 68 ] Accordingly, I order that the Subject Pit Bull Cross be euthanised forthwith, by a licensed and qualified veterinarian using the most humane, painless and non-traumatic method available for that purpose.

A FINAL COMMENT [ 69 ] These reasons would be incomplete if I did not acknowledge my gratitude to both counsel for their thoughtful and carefully presented submissions in this distressing case. I am indebted particularly to Ms. Salmond who, as I have acknowledged, took up her brief voluntarily and in a pro bono capacity as amicus curiae . She made every effort to bring herself up to speed quickly so that she might step into counsel’s role with a minimum of disruption to the already erratic and protracted timetable of this proceeding. For those and all the rest of Ms.

Salmond’s efforts I wish to record here that I am especially grateful. ________________________ Thomas S. Woods, P.C.J.