City of Nanaimo and Aubie, 2019 BCPC 345

Citation: City of Nanaimo and Aubie 2019 BCPC 345 Date: 20191126 File No: 74687 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF AN APPLICATION BY THE CITY OF NANAIMO PURSUANT TO

SECTION 49 OF THE COMMUNITY CHARTER, S.B.C.2003,

CHAPTER 26 AND IN THE MATTER OF MICHAEL AUBIE AND THE DOG MACEY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B. HARVEY Counsel for the City of Nanaimo: J. Plonka Appearing on his own behalf: M. Aubie

Place of Hearing: Nanaimo , B.C. Dates of Hearing: January 23, March 1, April 3, November 6, 7, 8, 2019 Date of Judgment: November 26, 2019 Introduction [ 1 ] The City of Nanaimo has applied for a finding that Macey, a black german shepherd dog, be declared a dangerous dog pursuant to sections 49(1) (

a) and (

c) of the Community Charter S.B.C. 2003

Chapter 26 and that either this dog be humanely euthanized or, in the alternative, be released to the dog’s owner Mr. Aubie. [ 2 ] Pursuant to the Santics decision referenced later in these reasons, conditional orders of release are no longer an option for this court. The Issue [ 3 ] The issue for this court to decide now is whether the City of Nanaimo has, on a balance of probabilities, satisfied the court that: • Macey is a dangerous dog; and • If such a finding is made, what should be fate of this dog? [ 4 ] This evidence in this case was heard over six days. It concluded after submissions on November 8, 2019.

Mr. Aubie, Macey’s owner, became self-represented midway through the Trial. The Facts [ 5 ] In order to achieve my decision in this matter, I will briefly deal with the evidence that I have heard and read in the exhibits in this case. [ 6 ] The City of Nanaimo called the following six witnesses in its case against Macey’s owner, Mr. Aubie: • Brittany Desousa; • Jennifer Belanger; • Karen Hoard; • Lisbeth Plant; • Amber Knapman; and • Justin Dishkin. [ 7 ] Jennifer Belanger is a social worker with the Ministry of Children and Family Development (M.C.F.D). On November 15, 2017 Ms.

Belanger was visiting the family home of Mr. Aubie as part of her M.C.F.D. duties. Whilst in the Aubie residence, Ms. Belanger headed upstairs where the dog Macey approached and grabbed at the social worker’s right arm and then proceeded to hold onto the social worker near her right elbow. The grab, which was referred to as a bite, did not at all puncture the skin of Ms. Belanger. She had been wearing a rain jacket, along with a longer sleeved shirt. Ms. Belanger did receive marks on both her jacket and underlying skin, the latter resulting in a bruise approximately the size of a quarter.

Although a report was filed by Ms. Belanger with WorkSafe BC, Ms. Belanger did not seek out any medical treatment for this incident. Otherwise, the home visit went on as scheduled with the dog Macey still in the home without further issue. [ 8 ] Karen Hoard was working as a dog trainer as an independent contractor for Best Paw Forward. Macey’s owner, Mr. Aubie had contacted Best Paw Forward to arrange some training for his dog. As a consequence Ms. Hoard attended at the Aubie home on February 14, 2018 for an initial visit. Ms.

Hoard testified Macey was a black female german shepherd dog that weighed approximately 60-70 pounds at the time. [ 9 ] At approximately 4pm on the date in question, Ms. Hoard testified that the dog was barking at her so Ms. Hoard asked for the owner and dog to go outside so that Ms. Hoard could observe the dog. After a short period of observation she asked the owner to return with the dog inside. Ms. Hoard advised the court Macey looked nervous, fearful and was protecting her home. [ 10 ] After Macey was put back into her crate inside the residence, Ms. Hoard and the owner, Mr. Aubie, spoke.

During this time Macey continued to bark. At some point thereafter Ms. Hoard asked Mr. Aubie to remove Macey from her crate and instructed the owner to let Macey go. As a consequence of Ms. Hoard’s instructions to Mr. Aubie, Macey went towards the trainer Ms. Hoard and bit her on the upper right thigh and right buttock area. As a result, the dog trainer had pants that were ripped and the bites broke the skin of Ms. Hoard, but on her thigh only. Notwithstanding this incident, the lesson continued for a further thirty to forty minutes. Ms.

Hoard did later attend a walk-in medical clinic in order to receive some medical treatment. However, as the bite did not puncture her skin, Ms. Hoard received only skin surface marks, including a large bruise on her thigh. The end result was Ms. Hoard was ultimately prescribed a course of antibiotics and advised to use polysporin for the affected areas. [ 11 ] Brittany Desousa testified that On April 7, 2018 she attended at Mr. Aubie’s home with her son N.D. for the purposes of a birthday party invitation. After the door was knocked, the dog Macey was in attendance at or near the doorway and was barking.

After a brief discussion with the youth who had answered the door, Macey then nipped at Ms. Desousa’s son’s arm, Ms. Desousa then smacked her son’s arm and that resulted in the dog losing its very brief hold on the child’s arm.

[ 12 ] Ms. Desousa then knocked on the door subsequently but no one came, so she departed with her son. Ms. Desousa described that her son received a pinch wound although there was no scarring nor was the skin broken. There was no medical attention sought by Ms. Desousa for this incident. Ms. Desousa also indicated in cross-examination that she was not fearful of Macey. [ 13 ] Lisbeth Plant, by consent of counsel for Mr.

Aubie at the time, was declared an expert by the court with respect to the following after a brief Voir Dire : • In making assessments as to whether or not a dog is aggressive and dangerous; • In the likelihood of the dog, in the future, attacking and killing or seriously injuring a person or another domestic animal; and • In the training and rehabilitating of aggressive and dangerous dogs. [ 14 ] Ms. Plant testified over two days and was cross-examined at some length by counsel for Mr. Aubie as well as by Mr. Aubie directly after he became self-represented during these proceedings. [ 15 ] Ms.

Plant gave an opinion after having tested Macey on December 11, 2018 when Macey was at the Nanaimo Animal Control Shelter. Ms. Plant used several decoys in order to perform her analysis on Macey. Her opinion was that Macey had a behavior that indicated fear aggression as well as territorial aggression. [ 16 ] Notwithstanding those opinions, the expert indicated in her report at page 19 that rehabilitation should still be attempted with the dog, including making several recommendations for a safe management protocol. [ 17 ] In Ms.

Plant’s supplemental report dated February 25, 2019, she did not alter her opinion but indicated the following at the close of her report under the heading “comment”: “the shelter environment is a stressful environment can be expected to have a negative effect on the emotional health of any dog placed in it.

In saying that, I am gratified to see that staff are continuing to work with her, and even though it is not taking the form of behavior modification for her particular fear issues, the positive reinforcement training serves to increase her confidence as well as her quality of life.” [ 18 ] Amber Knapman testified that she is a kennel keeper with the Nanaimo Animal Control and has been there since April 4, 2018. For five days a week one of her duties is to look after Macey.

Macey is stored in an area that is separate from other animals, given she has a vicious dog designation as a result of her impoundment. [ 19 ] Since Macey has been in the care of the Nanaimo Animal Control, some fifteen plus months now, Ms. Knapman indicates that Macey is very excited to see her each day and that she has been making some improvements. Macey has no difficulty having a muzzle placed on her and when she gets to know a stranger, there have been no issues with her. However, Ms.

Knapman would feel uncomfortable with Macey being released at this time because the kennel keeper believed that Macey still poses a threat to public safety given the past incidents that led to her impoundment. Ms. Knapman did not train or arrange for Macey to encounter strangers or other dogs whilst on walks but advised it was the other officers who walked Macey. [ 20 ] Justin Dishkin is now a Bylaw Officer for the City of Nanaimo. At the relevant time when Macey was apprehended, he was the Animal Control Officer for the City of Nanaimo. Mr.

Dishkin testified about his reasonable and probable grounds as to why he believed this dog was still dangerous. They included the following: • The dog seemed un-socialized; • The dog’s temperament; • The fact that she had bitten three people; and • No training was followed up with Mr. Aubie to his knowledge. Notwithstanding the above comments the Bylaw Officer indicated that there were discussions about the return of Macey to Mr. Aubie on conditions prior to her ultimate impoundment. [ 21 ] Nevertheless, Mr.

Dishkin is still of the opinion that Macey will seriously injure someone in the future. [ 22 ] When asked, while still in chief, if the dog poses a risk by barking, his response was “it can for sure”. To his mind, the biggest factor was both the child and social worker incidents in the house. It was also significant to the bylaw officer that there was more than one bite. Counsel for the City of Nanaimo posed a question to Mr. Dishkin along the following lines: “Well, what do you say then that all dogs can bite?” Mr. Dishkin’s response was “they don’t.” [ 23 ] That is a brief

summary of the evidence led for City of Nanaimo against Mr. Aubie. [ 24 ] Mr. Aubie, the dog’s owner, then called the following witness in response to the City’s case: • Aurora Jepson [ 25 ] Ms. Jepson has a two year old german shepherd that, unfortunately, had some behavioral issues. After trying a number of trainers, her and her partner ultimately received some significant progress with the use of Mr. Ken Griffiths, a behaviorist trainer that has also worked with Macey at the Nanaimo Animal Control Shelter. Ms.

Jepson indicated the results with her dog have been impressive and at a fraction of the cost spent on other trainers. Moreover, Ms. Jepson has never witnessed Mr. Griffiths lose his temper around her dog and looks forward to continue to work with him given the positive results she has received to date.

Community Charter and Case law [26] The relevant

section of the statute in question is set out in section 49 (1) of the Community Charter S.B.C. 2003

Chapter 26which states the following in part: 49

(1) In this section: “dangerous dog” means a dog that (

a) has killed or seriously injured a person, (

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

c) an animal control officer has reasonable grounds to believe is likely to kill or seriously injure a person.

(10) In addition to any other authority, if an animal control officer has reasonable grounds to believe that a dog is a dangerous dog, theofficer may apply to the Provincial Court for an order that the dog be destroyed in the manner specified in the order. [27] The court had the following case law authorities provided to it: 1. R. v Dempster (BCCA); 2. Community Charter v, Whittle

(2005) BCPC 610; 3. Smith v. Central Okanagan (Regional District)

(2013) BCSC 1063; 4. New Westminster Animal Control v. Letendre

(2010) BCPC 38; 5. R. v. Kuceras

(2001) BCPC 0360; 6. Santics v. Vancouver (City) Animal Control Officer

(2019) BCSC 24 and

(2019) BCCA 294; 7. City of Campbell River v. Awad

(2016) BCPC 431; 8. R. v. Douglas

(2019) BCPC 80; 9. Regional District of Kitimat-Stikine v. MacNeil (Unreported) February 23, 2013 (BCPC). [28] I have reviewed all of the cases submitted by the parties. Of course, each case is fact specific. Whilst each case authority isinstructive in its own fact specific scenario, this court must nevertheless apply the principles enunciated in the cases provided, includingSantics, to the facts in the case at bar. [29] What has not changed, however, is the twofold sections of the Community Charter applicable to this case, namely sections49(1)(

a) and (c). Subsection (

a) deals with whether Macey has seriously injured a person and subsection (

c) deals with whether theanimal control officer has a reasonable grounds to believe Macey is likely to kill or seriously injure a person and whether that belief isobjectively reasonable in all the circumstances. [30] Additionally, even if there is a finding that Macey is dangerous, the court may go on to consider whether she poses an“unacceptable risk to the public”. Position of the Parties [31] Counsel for the City of Nanaimo argued that that there is sufficient evidence to prove that Macey continues to be a dangerousdog given the three incidents in question.

Moreover, it is the City of Nanaimo’s position that Mr. Dishkin’s opinion is that Macey islikely to kill or seriously injure a person. Counsel for the City said argued that this was a reasonable position in all the circumstances.Additionally, it was argued that the evidence of kennel keeper Knapman was also a relevant factor for the court to consider. [32] It is the City’s ultimate position that the only reasonable option for the court is destruction of the dog.

That being said, counselfor the City of Nanaimo also acknowledged that there is a second step that flows from Santics, namely that even if this court were tomake a finding of “dangerous” as defined in the statute, the court can go on to consider whether Macey does not pose an “unacceptablerisk to the public”. If that were the case, counsel for the City of Nanaimo acknowledged the court can then dismiss the application fordestruction and release the dog back to its owner.

Counsel strenuously attempted to persuade this court that Macey still poses anunacceptable risk to the public and therefore, she must be destroyed. [33] Mr. Aubie, on the other hand also gave, as best he could, closing submissions that his dog should not be destroyed. Firstly, hereferenced the fact that his dog was grabbed inappropriately by kennel keeper Knapman on the back of her lower neck area prior to beinginitially muzzled for the decoy tests with Ms. Plant. Secondly, Mr. Aubie argued that there were also gunshots audibly heard outside theshelter when Macey was participating in Ms.

Plant’s decoy assessments. Thirdly, Mr. Aubie also argued that when Mr. Ken Griffithswent to see Macey, Macey had no issues with either him a complete stranger, nor with any other dog whilst under observation at theNanaimo animal control shelter. [34] Mr. Aubie referenced the two more minor incidents of the social worker and the young child. Additionally, but for the dogtrainer Ms. Hoard’s actions inside his own home, he stated she likely would not have been bitten. Lastly, and importantly, Mr. Aubiestressed the time gaps between all of the incidents concerning Macey.

In addition, he stressed the length of time without any further

occurrence from the last minor incident of the young child to Macey’s ultimate impoundment on August 7, 2018. [ 35 ] Therefore, it is Mr. Aubie’s position, in any event, that the Macey does not pose an unacceptable risk to the public and the application for destruction of Macey by the City of Nanaimo ought to be dismissed. Analysis [ 36 ] It must be remembered that courts regularly deal with conflicting evidence in both civil and criminal cases. What remains essential is that the City of Nanaimo bears the onus of proof on a balance of probabilities throughout in the case at bar.

However, the evidence must be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. [ 37 ] When analyzing the evidence as a whole and reviewing the exhibits I must say that my overall impression was that all witnesses gave, as best they could, candid and straightforward testimony.

That being said, this court still has to decide whether the City’s application for destruction of this dog should occur or whether the dog may be returned to its owner. [ 38 ] What is clear from the evidence I have heard is that this young dog has nipped at or bitten three persons at the dog owner’s own property and only one of those persons, Ms. Hoard, had any lasting injury. Moreover, there was no evidence led that Macey has ever attacked or bitten another animal. There was also no evidence that Macey has attacked another person, be it an adult or child, outside of the dog owner’s residence.

Additionally, over the last fifteen plus months that Macey has been impounded in the Nanaimo animal control shelter, there have not been any other incidents. If such were the case, then this court surely would have heard about any such incidents. [ 39 ] I also find it important that all the incidents were separated by a number of months and that Macey was impounded some four plus months after the last incident involving the young child. I find that, in all the circumstances, the last incident involving the young child was a minor one. [ 40 ] To assess the future risk of Macey, the court has the opinions of Ms.

Plant, Ms. Knapman and Mr. Dishkin. Ms. Knapman and Mr, Dishkin gave their lay opinions on the matter at hand. I find the opinions of Ms. Knapman, and particularly former animal control officer Mr. Dishkin, problematic. [ 41 ] Dealing first with Ms. Knapman; she has no formal training in dog behaviour, nor is she a trainer. Ms. Knapman has simply been in charge of looking after Macey on a day-to-day basis with her primary responsibilities of feeding and caring for Macey’s surroundings at the Nanaimo animal control shelter.

She had little to no information about Macey’s past history in relation to Macey being out in the public realm. Of course, Ms. Knapman has no prior history of the dog’s environment, nor has had any opportunity to see her interact with other dogs or humans prior to her involvement in this matter. [ 42 ] Concerning Mr. Dishkin, he may have believed that he possessed subjective grounds that Macey is likely to kill or seriously injure a person. However, I cannot agree with Mr. Dishkin’s assertion in this regard. I am not satisfied that Mr. Dishkin’s lay opinion is objectively reasonable in all the circumstances.

I say this, in part, because the court has clear evidence that was tendered in exhibit two that showed Macey interacting with another stranger, namely Mr. Ken Griffiths, as well and other dogs while impounded at the Nanaimo animal control shelter. There were absolutely no problems with Macey interacting with another human or animal. [ 43 ] Additionally, in Smith v. Central Okanagan District

(2013) BCSC 228 Mr. Justice Barrow wrote the following in the appeal of the original lower court decision as follows: [30] The third definition of “dangerous dog” provides that a dangerous dog is a dog that “an animal control officer has reasonable grounds to believe is likely to kill or seriously injure a person”. This definition turns on the animal control officer’s belief and whether that belief is reasonable. Three features of this definition are worthy of note. First, unlike the other two

definitions which rest on past events (killing or seriously injuring a person or domestic animal), this definition deals with likely future events. Second, it is only the likelihood of killing or seriously injuring a person that matters. The likelihood of killing or seriously injuring a domestic animal is not enough. Third, the legislature made the animal control officer’s opinion, as opposed to the court’s opinion, determinative. The only limitation is that the opinion must be reasonable. There are at least two components which an animal control officer must consider to reach a reasonable opinion.

The first is the disposition of the dog, and specifically whether the dog is aggressive, and if so, whether there is reason to believe the dog would be aggressive towards people. The second relates to the dog’s owner. A dog that has a tendency to be aggressive towards people would not ground a reasonable belief that it is likely to kill or seriously injure a person if the owner keeps the animal either on a leash or otherwise under close control when in the presence of people.

A reasonable basis to believe the dog will be seriously aggressive towards people and an owner that is either incapable or unwilling to control the animal when in the presence of people is what the definition implicitly requires. [ 44 ] Whilst in the case at bar Mr. Dishkin opined that he believed Macey is likely to kill or seriously injure person, I reiterate that Macey was involved in three incidents, two of which I find to be minor. The only injury that occurred was to the dog trainer Ms. Hoard. However, without the personal actions of Ms. Hoard’s, which both she and Ms.

Plant confirmed were inappropriate, it is highly unlikely that she, Ms. Hoard, would have been bitten. [ 45 ] Furthermore, the animal control officer gave no helpful evidence to this court as to the unsuitability of Mr. Aubie as a dog owner. Mr. Dishkin’s evidence falls short in this “second” component of the test as stated by Mr. Justice Barrow in the appeal reasons in Smith v. Central Okanagan District , supra, at paragraph 60: [60] The second variable in the equation that an animal control officer must consider is the degree of responsibility of the dog owner.

As noted, a conclusion that a dog is aggressive towards people or other dogs is generally not sufficient to ground a reasonable belief that the dog is likely to seriously injure a person. Whether that is so or not will depend on whether the animal’s owner is likely to take the steps necessary to control the animal and thus contain the risk.

[ 46 ] In my view, there is an absence of the required second component and a high reliance on there being three “bites” that makes Mr. Dishkin’s opinion speculative at best. Indeed, an opinion that I find is objectively unreasonable on the facts of this case. [ 47 ] In determining the weight of Ms. Plant’s opinion concerning dangerousness, Ms. Plant used decoys in a manner that I find was most unhelpful. I had some concerns with her opinion given Ms. Plant had very little information provided to her regarding the history of Macey. Moreover, Ms.

Plant had no information about the dog’s behaviour with other dogs before her impoundment. [ 48 ] It would also appear that Ms. Plant was not aware of any training that Mr. Aubie had been attempting with the dog prior to her opinion nor information about the dog’s socialization prior to her report. Those items may have affected her opinion but she indicated that she could only go with what she had. Lastly, when doing her assessment outside of the animal control shelter, she remembered hearing gunshots which she agreed could impact the dog’s fearful nature. [ 49 ] By Ms.

Plant’s own admission, Macey seemed stressed and her testing was done whilst gunshots were possibly heard by the dog. I question the veracity of Ms. Plant’s opinion to some degree based on her decoy approach in her testing of Macey. In my view, those tests came nowhere near that of reality. Although Ms. Plant tried her best, her opinion on Macey’s fear and territorial aggression was purely speculative. In my view, the testing of Macey was done in a completely stressful environment when Ms.

Plant initially entered the Nanaimo animal control shelter and when she continued the testing outside the shelter with the use of decoys. Given the sound of potential gunshots, coupled with the reality that Ms. Plant agreed the Nanaimo animal control shelter was stressful for Macey causes me further concerns in this case. [ 50 ] I also find the comments by my sister Judge Mrozinski in Douglas, supra, in paragraphs 54 and 64 apropos, and also applicable, to the case at bar. In that case my sister Judge stated the following:

(54) It is the case, as Ms. Plant admitted on cross-examination, that the field of dog behavior and dog training is less a science than an art. As Ms. Plant testified there is no formal training for the field per se, but that with experience and immersion in the literature, persons like Ms. Plant can offer their best informed guess as to the likelihood of a dog behaving in a given fashion. Nonetheless, I accept Ms. Plant is in a better position than the court to opine on the likelihood of these dogs attacking in the future. It is a question of what weight I put on the opinion.

The lack of scientific methodology means the weight of the opinion should be approached with some caution. I have other concerns with the opinion that also to weight.

(64) Whatever Ms. Plant’s opinion regarding the dangerousness of these 2 dogs, s. 49.1 of the Community Charter is quite specific. To find a dog dangerous after the provision, I must find one of ss. (a). (b), or (

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

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

For these reasons I find that Stroker does not meet the definition of a dangerous dog pursuant to 49.1 of the Community Charter . This court having no further jurisdiction to do with the animal, it follows that Stroker must be released back to Ms. Douglas. [ 51 ] In addition, the dog’s owner Mr. Aubie, clearly has had small children in his residence. There have been no allegations of inappropriate behaviour regarding them, nor to anyone else outside the dog’s own residence. It is common knowledge that dogs are particularly known to be territorial with respect to their own surroundings.

There is not a shred of evidence to suggest Macey has bitten another human or animal outside of its own territory in the past. [ 52 ] Furthermore, I also find it appropriate to review comments made by our Court of Appeal in paragraphs 66 and 69 of the Santics, supra, which stated in part: [66] In my view, the overarching question on an application for destruction order is whether the dog poses an unacceptable risk to the public-- that is, whether it is likely, on a balance of probabilities and given the totality of the evidence, to kill or seriously injure in the future …” [69] … that the concept of burden of proof does not naturally lend itself to the assessment of future events.

Rather, the Provincial Court on a s. 324.1(10) application must consider the totality of the available evidence -- regardless of which party adduced it-- to determine whether, on a balance of probabilities, the dog is likely to kill or seriously injure in the future. [ 53 ] It is clear on the evidence that Macey nipped at one child in the last incident and grabbed or bit at two adults, all of whom she was unfamiliar with in the past. Only one of those persons, Ms. Hoard, had any sort of injury of note. [ 54 ] On the totality of the evidence I have read and heard, including Ms.

Plant, I find that Macey does not meet the definition of a dangerous dog as set out in the statute. Although I recognize the test for dangerousness is on a balance of probabilities, I take comfort though that two of the incidents involved minor bites. The issue which caused me most concern was Ms. Hoard’s bite. However, that bite did not result in any serious, significant or lasting injury. In addition, I wish to emphasize the time gap between all the incidents and the time period between the last incident, April 7, 2018, which involved Ms.

Desousa’s young child, until Macey was impounded by court order on August 7, 2018. There simply is no evidence of any serious injuries that occurred on the evidence adduced in this hearing. [ 55 ] In fact, this court has heard no evidence that Macey has tried to attack anyone, including Ms. Knapman, nor any other animal control officer from the last incident to date. There is also no evidence that Macey has ever attacked, bitten or killed any other animal to date. Notwithstanding Macey has, whilst at or near the Nanaimo Animal Control Shelter under testing by Ms.

Plant, acted in a somewhat alarming way with three decoys, I balance that with what I have also observed by way of real dogs under close supervision both on and off leash conducted by Mr. Griffiths at the Nanaimo Animal Control Shelter. In those scenarios Macey is seen to be interacting with other dogs, and with Mr. Griffiths, in a completely normal pattern in a stressful environment for the dog. [ 56 ] Moreover, whilst Ms. Plant has extensive experience, she could not give a definitive opinion as to whether this dog would be a

danger to humans or other animals in the future. Furthermore, Ms. Plant certainly could not say other options will not work for Macey. Indeed, Ms. Plant offered certain recommendations in her report. Her recommendations speak for themselves; Ms. Plant has not opined that Macey cannot be rehabilitated. In fact, Ms.

Plant has never recommended that a dog be humanely euthanized, including this dog Macey in the case at bar. [ 57 ] In conclusion, whilst this court may have some reservations about Macey, it is my view that, on balance, and upon careful reflection of the evidence, I am not satisfied that the City of Nanaimo has discharged the burden required of it in this application. I say this given my aforementioned comments above. This by no means is a criticism of the City’s witnesses in general.

However, I am not satisfied that Macey be declared a dangerous dog as is defined in the statute and interpreted in the case law. [ 58 ] I find that animal control officer Dishkin’s opinion, coupled with that of kennel keeper Knapman, to be objectively unreasonable on the totality of the evidence. Both of those individuals attempted to go much further than Ms.

Plant and I do not consider them to have given reasonable opinions upon reflection of the evidence I have heard and reviewed in this case; that Macey is likely to kill or seriously injure a person in the future. [ 59 ] However, despite my finding, even if Macey was found to be a dangerous dog as defined in the statute, Macey does not pose such an “unreasonable risk to the public” in that she would kill or seriously injure someone in the future that warrants her euthanization. Even Ms. Plant does not make a recommendation for destruction of Macey and opined that rehabilitation should be attempted.

Disposition [ 60 ] Accordingly, I decline to make an order that Macey be declared a dangerous dog. [ 61 ] Therefore, the application by the City of Nanaimo is dismissed and Macey is ordered to be released back to her owner, Mr. Aubie, forthwith. ____________________________ The Honourable Judge B. Harvey Provincial Court of British Columbia