Her Majesty the Queen - v. -, 2016 SKPC 139

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 139 Date: October 27, 2016 Information: 90110352 Location: Swift Current _____________________________________________________________________________ Between: Her Majesty the Queen - and - Robert Charles Carpenter Appearing: Curtis Wiebe For the Crown Self represented For the Accused DECISION K.P. BAZIN , J [ 1 ] On a pleasant June evening, three youths were doing what young teenagers often do in small towns, they were walking down

the street, hanging out and enjoying each other’s company. The youths were, without warning, attacked by five Labrador dogs. [ 2 ] This is the sentencing decision as to Mr. Carpenter who has been found guilty of two charges of owning dogs that attacked people, contrary to s. 376(4) of The Municipalities Act,

Chapter M- 36 .1 Facts [ 3 ] The three young teenagers were Kayla Keith and Zoe Desautels, both 13 years of age, and Jasper Gian, who was 14. [ 4 ] When the teens walked by Mr. Carpenter’s house, which is across from the town library, without warning or provocation, five dogs set upon them. The dogs circled the teens and then attacked and bit them. All three youths said the five dogs came up to them aggressively. Kayla, who has experience with dogs as her family has three including a St. Bernard, described the dogs as being "really aggressive". She said they were not happy and they weren't wagging their tails.

Kayla was initially bit on the hand. She saw her friend Zoe get bit but that bite did not break Zoe's skin. [ 5 ] The young boy with the two girls, Jasper Gian, described seeing that Kayla and Zoe were afraid. He described the teens as standing tight together. He described the dogs jumping at Kayla. He remembered seeing the dogs come out of a yard that had a gate open. [ 6 ] Jasper, who had a bike, told the two girls he would take his bike so the dogs would chase him; they did. He was able to have the dogs chase him on his bike to lure them away from the girls.

He made it to a friend’s house, dropped the bike and ran in to the house. As he ran toward the house, one of the dogs bit him on the thigh. [ 7 ] Kayla and Zoe, once the dogs chased after Jasper on his bike, were trying to get to Zoe’s house for safety. But before they got there, the dogs returned and surrounded them. Zoe said that she and Kayla just froze. However, Kayla stepped back and the dogs, seeing this, attacked her. [ 8 ] All the teens described the dogs acting together as a pack. It is clear from their evidence that it was not one dog that was attacking, but all five together.

Kayla, the child most seriously injured, described the dogs when she was fighting them off and said that all five of them were either attacking together or attacking in smaller groups. [ 9 ] When the dogs started attacking Kayla, she tried to run away, and ran around a tree, but the dogs jumped her and knocked her over. She was then attacked by the five dogs while she was on the ground. She stated that the dogs were biting her legs and arms.

She said all five dogs jumped her and attacked her. [ 10 ] Kayla talked about how she was pinned down by the dogs, how she fought them off by kicking and trying to push them off of her. She was able to get up off the ground by the tree and managed to run to the steps of a house. From the second step, Kayla continued to fight off the dogs by kicking at them. Kayla described how, while she was on the steps, the dogs would back off for a bit but then come back to attack her.

She said they would attack in smaller groups of two or three, as well as all five coming at her together. [ 11 ] Kayla said there were a lot of hard bites, some not breaking the skin and some, as indicated in the photographs filed, puncturing her skin. The attack just ended, and the dogs left. About then, Zoe's mother arrived. [ 12 ] The three teens were very scared when the dogs first arrived and started attacking. As Zoe was running to get help, she heard her cousin Kayla screaming in pain and saw all the dogs on top of her and Kayla trying to fight them off. [ 13 ] Mr.

Carpenter was the owner of the five dogs; they are Rainbow, Chubs, Lillie, Joey and Whinney. He described them as medium to large Labrador dogs and the teens described them as Lab type dogs.

Interim Order [14] Following the sentencing submissions, as the matter was reserved, the court imposed an interim order with the followingconditions;

a) The five dogs (Joey, Winnie, Lily, Rainbow, Chubbs) were to remain in the possession of Robert Charles Carpenter, and in theTown of Ponteix until the final sentencing order is rendered;

b) The dogs will be enclosed in a locked facility from which they are unable to escape and where third parties are unable to enterother than in the presence of Mr. Carpenter and/or his wife, Ms. Saphrine Ng;

c) Warning signs are to be posted on all gates and doors that access the enclosed area, indicating that dangerous dogs are present andthat people are not to enter;

d) The dogs are not to leave the enclosed area unless muzzled and leashed and in the control of Mr. Carpenter only and only one dog isto be out of the enclosure at a time;

e) The dogs are to be attended by an adult at all times and not be left unattended;

f) The enclosed locked facility is to meet with RCMP approval;

g) Mr. Carpenter will immediately advise the Ponteix RCMP of this order and provide them with a copy of this order;

h) Mr. Carpenter will immediately take steps to have the enclosed locked facility inspected by the RCMP and prepared to thesatisfaction of the RCMP. Sentencing Considerations [15] The Crown has asked for a $1,000 fine, as well as an order that all five dogs be destroyed. Mr. Carpenter agreed thatRainbow is "a biter" and should be put down but argued that the other dogs should not be destroyed. It was also brought out in the trialthat Rainbow had previously bit a person in Calgary, Alberta when Mr.

Carpenter had previously resided there. [16] I recently reviewed the issue of whether a dog that had attacked should be destroyed in R v Barber, 2015 SKPC 178. The Barber decision is a sentencing decision and it sets out guidelines to be used to provide some consistency in assessing thesentence in situations where a dog has been found to have attacked or has been designated a dangerous dog under the The MunicipalitiesAct in Saskatchewan. The Barber decision utilizes the criteria found in the Ontario Dog Owners Liability Act. RSO 1990,

chapter D-16. [17] Subsequent to the Barber decision, the Queen’s Bench court in R v Regier, 2016 SKQB 290 at paragraph 66, alsostated that the considerations in the Ontario legislation are a useful guideline in assessing whether or not the court’s discretion to destroya dog should be exercised. [18] The issue in this matter, as in the Barber decision, is not to determine whether the five dogs are dangerous dogs or not. Instead, Mr. Carpenter was found guilty after trial of two counts of owning animals that, without provocation, attacked people contrary tosection 376(4) of The Municipalities Act. The consequences of conviction under that

section are the same as when a dog is declared adangerous animal under the declaration of dangerous animal proceedings under the Act. [19] The issue to be determined is whether or not the public can be protected from Mr. Carpenter’s five dogs either throughconditions of care for the dogs or by way of destruction of the dogs or by a combination of these alternatives. [20] The guideline considerations are as follows: 1. The dog’s past and present temperament and behavior. 2. The seriousness of the injuries caused by the biting or attack.

3. Unusual contributing circumstances tending to justify the dog’s action. 4. The improbability that a similar attack will be repeated. 5. The dog’s physical potential for inflicting harm. 6. Precautions taken by the owner to preclude similar attacks in the future. 7. Any other circumstances that the court considers to be relevant. I. The Dog’s past and present temperament and behaviour. [ 21 ] As to the five dogs, Ms. Ng, Mr. Carpenter's spouse, testified that they did not have trouble with the dogs before. However, she then said that the dog Rainbow has a history of biting. Ms.

Ng testified that Rainbow had bitten someone in Calgary, Alberta where the parties previously lived. She agreed that they had a problem with Rainbow. In particular, Ms. Ng testified that they knew it was important not to let Rainbow out of the yard. She said they knew they had to train her and had started to train her. After the attack on the teens, she walked Rainbow with a muzzle, as the RCMP advised her to do. [ 22 ] Mr. Carpenter stated that he will have Rainbow put down, and he referred to Rainbow as "a biter". He said the other four dogs, however, are good, gentle dogs.

He agreed that there had been complaints about his dogs before, but did not elaborate on what types of complaints. He said that when the dogs play, they pretend to attack each other. II. The seriousness of the injuries caused by the biting or attack. [ 23 ] As to the seriousness of the attack, it is a significant attack on three teenagers. All five dogs acted together as a pack and all five dogs were involved in circling the teens and attacking them. All five dogs chased Jasper when he went on his bike to lure them away, and all five dogs returned to attack the two girls, most significantly Kayla.

They attacked Kayla as a pack, as well as in individual groups. The attack involved numerous bites and continued even when Kayla managed to get up after being knocked to the ground and found some advantage by being up on stairs to a house. [ 24 ] The physical injuries are multiple bites to Kayla. Her skin was punctured by teeth and there are multiple scratches and bruising marks on her legs. The bites are on her upper and lower thigh, calf and knee areas. Kayla talked about how painful it was and about the many needles and pain killers she had to be given.

She will have permanent scars as the care providers were not able to stitch the wounds because of concerns about infection from the bites. Kayla had to miss out on many of her high school activities, particularly in sports, because of the injuries. [ 25 ] Jasper Gian testified that he had one bite that went through his skin in the thigh. He had to go to the hospital for a tetanus shot. [ 26 ] The psychological effect on the teens is seen in their testimony and victim impact statements. Kayla whose family has three dogs of their own, talked about how she now has a fear of dogs.

She said it was extremely traumatizing being attacked by five dogs. [ 27 ] Zoe talked about hearing her friend Kayla screaming in pain as the dogs attacked her. She talked about how they were frozen with fear when the dogs came out at them. She talked about how fast it happened and how they were afraid and how they worried whether Kayla was going to be alright. In her victim impact statement, Zoe outlined her fear and worry that it could happen again, and how she worries that the dogs might do this to other people and, in particular, smaller children.

She expressed the guilt that she feels for not jumping in and saving Kayla from the dogs. Zoe believes the memory will stick with her forever. III. Unusual contributing circumstances tending to justify the dogs' action [ 28 ] There are no unusual contributing circumstances to justify the dogs' actions in this matter.

IV. The improbability that a similar attack will be repeated. [ 29 ] There was no evidence at the trial or in sentencing submissions that would provide any level of confidence that a similar attack would not occur if the dogs escaped. Mr. Carpenter had eight dogs at the time of the attacks, five of which were involved in the attack. Mr. Carpenter indicated that the dogs got out because of a missing hinge on the gate, which he knew was missing. He said he had tried to buy a replacement but was not able to do so.

There is no indication he did anything further about this deficiency in the gate; this enabled the dogs to escape on the day of this attack. The dogs acted in a pack manner, and nothing was proposed that might prevent the dogs being together and acting as a pack in the future, other than Mr. Carpenter's indication that he was going to have Rainbow put down. V. The dog’s physical potential for inflicting harm. [ 30 ] Mr. Carpenter advised that the dogs were Labrador dogs, describing them as medium to large dogs. Their potential and ability to inflict harm is evidenced by the injuries they inflicted on Kayla.

Kayla is a 13 year old young person and she was knocked down and attacked on the ground by the dogs. The bites that punctured her skin are on her upper thighs, which would be at the face level of a smaller child. Mr. Carpenter, in sentencing submissions, downplayed the injuries to Kayla and that the dogs were actually attacking. He stated that if the dogs were serious about harming, they could do a lot more damage. This statement, along with the injuries to Kayla, indicates that these dogs have the physical potential to inflict serious harm, which they did. Thus, and with Mr.

Carpenter’s indication that they could do a lot of harm, I find that the dogs could easily inflict injuries that would result in the death of a person. VI. Precautions taken by the owner to preclude similar attacks in the future. [ 31 ] There have been few precautions taken by the owner to prevent a similar attack in the future. Mr. Carpenter advised that he was intending to use an electric fence, which is not an actual fence but electric collars on the dogs that give the dogs an increased shock as they approach the boundary of the yard.

This would be in addition to the physical six foot fence already in place. [ 32 ] Mr. Carpenter also advised that it was his plan to move out of the town of Ponteix, which I understood to mean he intends moving out of the area to a new town, as opposed to a place in the country. [ 33 ] It is significant that neither Mr. Carpenter nor his spouse took any preventative actions after Rainbow bit someone in Calgary. Although we do not know the details of that attack, Mr. Carpenter described Rainbow as a biter, but had not taken any steps to restrain him, aside from keeping his dogs in his yard with a fence. [ 34 ] Ms.

Ng testified that before this attack, she walked the dogs without muzzles but, as I understood her testimony, after the attack, she walked either all the dogs or at least Rainbow with a muzzle as she was told to do by the RCMP. [ 35 ] Mr. Carpenter had complaints about his dogs before the attacks on the teens so he would have been aware that there was community concern about his dogs. He did not take any preventative actions other than increasing his fence from four feet to six feet. VII. Any other circumstances that the court considers to be relevant. [ 36 ] I consider Mr.

Carpenter’s general attitude to the dogs and his downplaying of the seriousness of the attack as a relevant consideration. I find that Mr. Carpenter lacks insight into the seriousness of the attack on the teens. He also lacks insight into the potential harm that the dogs present to other people. In his argument at trial, as well as in his sentencing submissions, he held to the belief that the teens in some way provoked the dogs. He had argued that by running away, Kayla provoked the attack, as people should know not to look dogs in the eyes and not to run if they come up to them. [ 37 ] Mr.

Carpenter does not understand that the cause of the attack does not lie in the actions of the victims but in the aggressive actions of the dogs. I found that Mr. Carpenter generally sees the attack as the dogs playing, as that is how his dogs aggressively play and play fight. He said his dogs pretend to attack each other and play around and that is just dog behaviour. He contends that only Rainbow bit anyone, despite all of the witnesses, being the three teens, describing all of the dogs attacking and biting.

[ 38 ] Mr. Carpenter’s statement that the dogs could have done much more harm if they were serious about doing harm also shows his lack of insight into the degree of harm done to the two teens, as he minimizes the harm done to them. [ 39 ] Mr. Carpenter’s lack of insight to the danger that his dogs present leaves me little confidence that he would be responsible in the long term to ensure that his dogs did not harm another person. [ 40 ] In addition, I find that the dogs, who by all indications, excluding Rainbow, had not bitten anyone before, totally unprovoked, attacked as a pack. Mr.

Carpenter stated that they play fight together and that is just how they play. However, the four dogs that Mr. Carpenter described as nice dogs acted in a pack when they got out of the yard and away from their owner. They immediately attacked the three teens. It is of note that the attack had three phases, involving all the five dogs attacking and acting in a pack. The first is the initial attack on the three teens and the second is when they all chased Jasper as he tried to lead them away from the girls. The dogs then, still acting as a pack, returned and found the girls.

When Kayla moved and the dogs came at her and she ran, they attacked her as a pack and left Zoe alone. It was not a situation where some stayed and some attacked different teens when the teens were separated. The five dogs all went after one teen and left the others. Analysis [ 41 ] Mr. Carpenter was found guilty of two counts of owning animals that attacked a person under s. 376(4) , being: s.376(4) Any person who owns an animal that, without provocation, attacks, assaults, wounds, bites, injures or kills a person or domestic animal is guilty of an offence.

(5) A person who is guilty of an offence pursuant to this

section is liable on

summary conviction to: (

a) a fine not more than $10,000; (

b) imprisonment for not more than six months; (

c) an order pursuant to subsection 375(5); or (

d) a penalty consisting of any combination of clauses (

a) to (c). [ 42 ] The legislation, pursuant to s. 375(1), allows a complaint about an animal to be brought before a Judge to determine if an animal is dangerous, and if so found, the remedies under s. 375(5) apply. With a finding of guilt under s. 376(4), the remedies as to control or destruction of the attacking animal automatically come into consideration, without a finding of the animal being a dangerous animal. [ 43 ] Section 375(5) of The Municipalities Act sets out the options available to the court in sentencing so as to control of the animals in an effort to protect the public from a further attack. The

section is as follows:

(5) If a judge declares an animal to be dangerous, the judge shall: (

a) make an order embodying one or more of the following requirements, as the judge considers appropriate: (

i) the owner shall keep the animal in an enclosure that complies with prescribed criteria; (ii) if the owner removes the animal from the enclosure, the owner shall muzzle and leash it in accordance with prescribed criteria and keep it under the owner’s direct control and supervision; (iii) the owner shall obtain and keep in effect liability insurance in the prescribed amount to cover damage or injury caused by the animal; (iv) the owner shall display a sign, in the prescribed form and manner, on his or her property warning of the presence of the animal and shall continue to display that sign in good condition so long as the animal is present on the property;

(

v) the owner shall comply with the regulations and the Health of Animals Act (Canada) with respect to the detection and control of rabies; (vi) if the animal is moved to any other municipality, the owner shall notify the designated officer in the other municipality; (vii) if the animal is to be sold or given away, the owner shall: (

A) notify any prospective owner that the animal has been declared dangerous, before it is sold or given away; and (

B) notify the designated officer in the municipality of the name, address and telephone number of any new owner of the animal; (viii) the owner shall have the animal tattooed in the prescribed manner; (ix) the owner shall have the animal spayed or neutered; (

x) the owner shall take any other measures that the judge considers appropriate; or (

b) order that the animal be destroyed or otherwise disposed of at the owner’s expense and shall, in that case, give directions with respect to the destruction of other disposition. [ 44 ] Having considered the forgoing factors and the options available to ensure the safety of the public, I find that the five dogs, being Rainbow, Chubs, Lillie, Joey and Whinney, are required to be destroyed.

I am not satisfied that any order for their care and control would reasonably be able to prevent a further attack on a person and, as such, the public cannot be reasonably protected from these dogs. [ 45 ] The dogs are medium to large dogs, and are capable of inflicting significant injuries, which they did on Kayla. The dogs' owner stated, that '"if they were serious about harming, they could do a lot of harm”. Looking at the harm done to Kayla, the five dogs, unprovoked, attacked without warning three young teens. The dogs were not deterred by the number of teens they faced.

The five dogs attacked as a pack, and returned to the teens and attacked them. [ 46 ] The dog Rainbow had bitten before and is described as a biter, yet Mr. Carpenter had a cavalier attitude to ensuring the dogs and, in particular Rainbow, were securely enclosed, as he knew that the gate to his fenced in yard was missing a hinge, enabling the dogs to escape. [ 47 ] The order is as follows: 1. The Royal Canadian Mounted Police shall immediately take possession of Mr.

Carpenter’s five dogs, being Rainbow, Chubs, Lillie, Joey and Whinney, and have the dogs impounded until November 11, 2016, being eight clear days from the date of this order. Thereafter, the RCMP are to arrange to have the said five dogs euthanized by a licensed veterinarian. The dogs may be euthanized earlier with the consent of Mr. Carpenter. 2. Mr. Carpenter shall pay the costs of impounding of the dogs and their euthanization. 3. Mr. Carpenter shall pay a fine of $500.00 which includes any surcharges, and have six months to pay the fine.

In setting the amount of the fine, I have taken into consideration that Mr. Carpenter will incur costs associated with the impounding and destruction of the dogs. 4. If Mr. Carpenter appeals this decision on or before November 11 th 2016, pursuant to s. 377(2) of The Municipalities Act , the application of this order as to the destruction of the dogs is stayed pending the disposition of the appeal. The dogs remain impounded until disposition of any appeal.

[ 48 ] Many dogs by their nature and sheer size pose a potential danger to the public. It is the owner’s responsibility to ensure that their dogs are properly trained, cared for and controlled at all times. The greater the potential for harm to the public from the dog, the greater the responsibility on the owner to ensure that their dog is properly trained and under control, and that the public is protected from their dogs behaviour. [ 49 ] Dog ownership comes with significant responsibilities. Dogs are left, for all intents and purposes, at the mercy of their owners. They do not get to choose their owners.

Many dogs would be better served by being pets of more responsible owners, yet they have no say in who owns them. It is their owners who carry the responsibility of ensuring that they are properly cared for, trained, and under control at all times. When the owners fail in their responsibilities in the training and control of their dogs and place the public at risk, it is the dog that suffers the severest of consequences. [ 50 ] When there is a question requiring the balancing of public safety and pet ownership, without question public safety is the utmost priority.

Dated at Swift Current, Saskatchewan, this 27 th day of October 2016. ______________________________________ K.P. Bazin