Brampton (City) v. Khela, 2019 ONCJ 526

CITATION: Brampton (City) v. Khela , 2019 ONCJ 526 DATE: July 17, 2019 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario B E T W E E N : HER MAJESTY THE QUEEN (Corporation of the City of Brampton) -and- JAGVIR KHELA REASONS FOR JUDGMENT Duncan J. 1 . This is an appeal from an Order made by a Justice of the Peace following a hearing under the Dog Owner’s Liability Act (“DOLA”). Nature of Proceedings 2 . The proceedings were commenced by a “Statement” pursuant to the procedure in

Part IX,

section 161 of the POA which applies where a statute provides for the making of an order but not for any accompanying procedure. The DOLA is such a statute: see S 4 (1.2) of the Act . The proceedings are to be conducted in the same manner as trial by information under

Part III of the POA. An appeal is analogous to a conviction and sentence appeal under that Part: R v Solomon 2005 ONCJ 353 ; [2005] OJ No 3317 . 3 . Though not entirely accurate, throughout this judgment, as in Solomon , I will often use criminal or quasi-criminal terns such as “charge, trial, offence, conviction or sentence” because they are familiar and properly correspond to the procedures used on the hearing 4 . As for the nature of the appeal, as mentioned, the powers are the same as a

Part III POA appeal, that is, on appeal from conviction the court can intervene on grounds of error of law, unreasonable verdict or miscarriage of justice. On an appeal from sentence the court must consider the fitness of the sentence imposed. Background Facts 5 . On September 8 2017 the dog at issue, “Tyson” a 110 pound male “Bullmastiff/Cane Corso type dog” – was apprehended by animal control as a result of an incident near his owner’s home on Lonetree Court in Brampton.

The incident was described in a subsequent letter directed to the appellant/dog owner by the Supervisor of Animal Services as follows: This letter is to inform you that Brampton Animal Services has completed an investigation of the incident that occurred on September 8 2017 involving your dog Tyson. Your sister Arveen Khela was walking Tyson on Lonetree Court in Brampton. A man was also walking on the court handing out business cards when Tyson attacked him. A woman intervened to help and had her small dog in her arms at the time. Tyson attacked her and then began attacking her dog, grabbing him by the neck.

The man, woman and her small dog had to seek medical attention as a result. Due to the unprovoked nature and severity of this incident the City of Brampton Poundkeeper is satisfied that grounds exist to designate your dog Tyson as a Dangerous Dog. 6 . The Supervisor found, based on this incident, that Tyson was a “Dangerous Dog” as defined in the applicable City By-law. The Appellant was required to follow several conditions and restrictions for control of the dog. Conditions included that the dog be muzzled and leashed at all times when not in the home or an enclosed pen.

Dangerous Dog Restrictions: Appendix I 7 . The appellant was advised of his right of appeal from this Order. No appeal was taken. 8 . It should be noted that this dangerous dog designation is an order under a city by-law and is not an Order under the DOLA on which a further prosecution can be based.

9 . However, proceedings were soon brought under the DOLA based on the same incident. The prosecution in that case originally sought destruction of the dog. Ultimately however, that charge was resolved before Justice of the Peace Quon on November 16 2017 with the equivalent of a guilty plea and joint submission on sentence for a control Order rather than a destruction Order.

Conditions included requirements that the dog be leashed and muzzled if outside of the fenced property: that he be accompanied by an adult physically capable of controlling him; that the fence to his yard be at least 6.5 feet high or that he be tethered and supervised at all times while in the yard. Order of Quon J. P. November 16 2017: Appendix II 10 . Two months later, on January 15 2018, in the middle of the day, Tyson was seen by Mr. Atwal, a resident of Lonetree Court, to be wandering on the street and in yards near houses. The scene was captured on home security video that was played for the court.

There was no one with the dog – he was completely unsupervised. He had a surgical lampshade cone over his head but was unencumbered by any muzzle, leash or sign that he had escaped from a restraint, such as a broken tether. Tyson walked around, sniffed various things, looked up and down, trotted here and there and eventually ran out of camera range. There were no other animals or people on the street except for one man some distance away brushing snow from his car. The dog looked in that direction but showed no further interest. Mr.

Atwal called animal control who obtained a warrant and apprehended the dog at his home on January 18 2018. 11 . As a result of this incident, the appellant was summonsed to answer another “Statement” sworn January 31 2018 alleging that on or about January 15 2018 he: [1] • Para 2: [Was] the owner of a dog that has behaved in a manner that poses a menace to the safety of persons or domestic animals (particulars given) to wit: wandering at larger • Para 5: Contravened a provision of the DOLA or the regulations made under the Act or a court Order made under the Act. Statement sworn January 31 2018: Appendix III 12 .

The hearing took longer than might be expected, much of it taken up with objections and argument. The Crown called two animal services officers and Mr Atwal the man who had seen the dog running loose. The defence called no witnesses. Evidence was heard in May and July 2018; submissions heard in January 2019 and decision given February 14 2019. [2] In the result the trial court, in an oral decision, found both allegations in the Statement had been made out. At the same time, without a break or receipt of separate sentencing submissions – the court ordered that the dog be destroyed.

Final Order for destruction Feb 14 2019: Appendix V 13 . The destruction Order was stayed pending appeal on March 1 2019 by Monahan J. who ordered the dog kept in the custody of Brampton Animal Services pending further order of the Court. A motion to have the dog released pending determination of the appeal was denied by Rahman J. on March 19 2019. 14 . The Appellant has relocated and is no longer living on Lonetree Court in Brampton. The dog is presumably still in custody. The Statute: 15 . The relevant sections of the DOLA: Proceedings against owner of dog 4

(1) A proceeding may be commenced in the Ontario Court of Justice against an owner of a dog if it is alleged that, (

a) the dog has bitten or attacked a person or domestic animal; (

b) the dog has behaved in a manner that poses a menace to the safety of persons or domestic animals; or (

c) the owner did not exercise reasonable precautions to prevent the dog from, (

i) biting or attacking a person or domestic animal, or (ii) behaving in a manner that poses a menace to the safety of persons or domestic animals. 2005, c. 2, s. 1 (6) . 4 (1.1 ) A proceeding may be commenced in the Ontario Court of Justice against a person if it is alleged that the person contravened a provision of this Act or the regulations or a court order made under this Act. 2005, c. 2, s. 1 (6) . 4

(1.2) Part IX of the Provincial Offences Act applies to a proceeding under this section. 4(1.3) Findings of fact in a proceeding under this

section shall be made on the balance of probabilities. Interim Order 4(2) When a proceeding has been commenced under subsection (1) or subsection (1.1) the Ontario Court of Justice may, pending a determination of whether an order should be made under subsection (3) or pending an appeal of such order, make an interim order requiring the owner to take measures specified in the interim order for the effective control of the dog, Final order 4

(3) If, in a proceeding under subsection (1), the court finds that the dog has bitten or attacked a person or domestic animal or that the

dog’s behaviour is such that the dog is a menace to the safety of persons or domestic animals, and the court is satisfied that an order is necessary for the protection of the public, the court may order, (

a) that the dog be destroyed in the manner specified in the order; or (

b) that the owner of the dog take the measures specified in the order for the more effective control of the dog or for purposes of public safety. 2000, c. 26 , Sched. A, s. 6; 2005, c. 2, s. 1 (8, 9). Considerations 4

(6) Except as provided by subsections (8) and (9), in exercising its powers to make an order under subsection (3), the court may take into consideration the following circumstances: 1. The dog’s past and present temperament and behaviour. 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. ……… 4(9) When, in a proceeding under this section, the court finds that the owner of a pit bull contravened a provision of this Act or the regulations relating to pit bulls or contravened a court order relating to one or more pit bulls, the court shall make an order under clause 3(a) (destruction) ……. Offences 18

(1) An individual who contravenes any provision of this Act or the regulations or who contravenes an order made under this Act or the regulations is guilty of an offence and liable, on conviction, to a fine of not more than $10,000 or to imprisonment for a term of not more than six months, or both. 2005, c. 2, s. 1 (16) . Destruction is not an option for breach of prior Order under DOLA 16 . The above provisions make it clear that the DOLA does not permit destruction of a dog (except a pit bull) based on a breach of an earlier Order under the Act, that is, for an offence under subsection 4(1.1). 17 .

The destruction authority is found in sub 4(3) which by its terms only applies to final orders in proceedings under sub 4(1) – not 4 (1.1). This is a considered distinction made in the statute. By way of contrast note the authority under 4(2) to make an interim order (that does not include destruction) specifically includes both 4(1) and 4(1.1). More telling is the distinction between non-pit bulls and pit-bulls in section 4(9) where the latter are not just liable to destruction upon breach of an Order – destruction is mandatory. 18 .

The point re destruction not being an option for breach of the Order was brought to the court’s attention by defence counsel early in the proceedings. It is unclear to me whether the prosecution ever accepted its correctness. The hearing Justice expressed no opinion and gave no clear ruling on the issue. The Crown Position : 19 . What is clear, however, is that the prosecution made the breach of the earlier Order the heart of its case on both allegations in the Statement.

At the start of the hearing the prosecutor made several statements to show that its case for destruction relied solely on breach of the earlier Order of Justice Quon: (all references to Transcript May 18 2019) • “…The focus here or the issue to be argued is completely with the breach of the court order” (P 6 L 5) • “…And after proving that [court order] contravention and I do not believe defence has much objection to that contravention, we intend to show cause why the animal should be euthanized.

And that is the purpose of today’s hearing.” (P6 L 30) • “…So the evidence that we will hear from our witness, from Amanda Barrett will be with regard to the dog designation, the dangerous dog designation, the court order and the fact that a breach occurred and then the Prosecution will call its second witness Animal Services Manager Kathy Duncan to give reasons why the dog should be destroyed”. (P 12 L 15) • “…and we’ve particularized that, in fact, the evidence to be heard in hearing of the Statement is the breach of the court order.” (P 17 L 8)

• “…the reason that we are here to have the show cause hearing is due to the contravention of the court order” (P 21 L 18) • “Okay, and your worship, the breach of the order itself, the animal wandering at large in breach of the five points that I mentioned in the order. The breach of the Order itself was the menace to the safety of the public and the safety of individuals in the neighbourhood and that is what will be presented in evidence.” ( P 32 L10) 20 . Similarly, in closing submissions the (different) prosecutor focussed almost entirely on the earlier Order.

In 14 pages of transcribed submissions, only one paragraph (P11 L28-P 12 L8) was directed to the “at large” incident of January 15 2018. No attempt was made to point to any new behaviour that posed a menace on that date. (Transcript January 21 2019 P 1-14). The defence position: 21 . The defence position was that the prosecution could not achieve an order for destruction based on breach of the earlier court Order – a breach that it was prepared to admit. As stated above, this position was clearly correct.

Therefore, for the prosecution to reach its goal, a conviction for the allegation in paragraph 2 charging a breach of 4(1)(

b) was necessary. The defence position was that the benign behaviour of the dog on that day could not support such a conviction. The main issue: 22 . The central issue in this case was whether the prosecution can rely solely on the breach of the earlier Order to establish the offence under 4(1)(

b) of the DOLA? Or put another way, was the prosecution obliged to prove additional menacing behaviour on the occasion charged? 23 . The words of that offence are set out here again for convenience: (

b) the dog has behaved in a manner that poses a menace to the safety of persons or domestic animals; 24 . The defence ably argues that consideration of the relevant sections of the DOLA makes it clear that the statute did not intend breaches of Orders to give rise to jeopardy for capital punishment. To permit the path of liability taken by the prosecution here would be to obliterate the distinction that the legislature carefully enacted and would permit all breaches of prior Orders to be punishable by destruction. 25 .

The prosecution argues however that it is Tyson’s past behaviour that gives the breach – running loose – its menacing and dangerous character. This is not just a dog on the loose – it is a dangerous dog on the loose. For that reason the dog was a menace whether he did something aggressive or vicious on that day or not. 26 . It must be recognized however that Tyson’s history is not unique or exceptional.

To the contrary all Orders made under the DOLA and therefore all allegations of breach of those Orders involve dogs that have been found to have earlier infringed section 4(1) that is, to have bitten, attacked, or menaced in the past. Accordingly, every case of breach will be accompanied, as here, by a past history of dangerous behaviour which, if the prosecution’s theory is correct, would always open the door to capital punishment. 27 .

While it might be thought sensible for the legislation to permit a destruction Order to be imposed when an earlier control Order has been ineffective, ignored, neglected or breached, the fact is that for whatever reason it has chosen not to do so. It could easily have included breach of an Order as another offence under sub 4 (1). Or it could have included sub 4(1.1) in sub 4 (3), the penalty

section authorizing destruction. Instead, it did exactly the opposite and excluded breaches of Orders from the capital penalty. That intention cannot be ignored. An

interpretation that does an end run around that clear intention cannot be accepted. 28 . The prosecution here is effectively seeking to employ a sort of breach of probation, breach of conditional sentence, breach of bail type of procedure involving revocation, reconsideration and replacement of a prior more lenient order. However, unlike those examples, there is no statutory authority to do so in this situation. Again, the legislature could have made such provision but chose not to do so. 29 .

More basically, apart from the legislative scheme and intent, the allegation at issue specifies that “the dog has behaved in a manner that poses a menace… on or about January 15 2018.” On its face, these words strongly suggest – indeed they say so in so many words – that some behaviour that poses a menace is required. It is not just being a menace. Moreover the allegation in the Statement specifies an offence on or about January 15 2018. As a basic principle, the offending menacing behavior must be proven to have occurred in that time frame and not months before. 30 .

At the hearing of the appeal, the prosecutor submitted that in this case the behaviour element is satisfied by the past behaviour that gave rise to the original Order, that is, the attack in September 2017. While it is true the conduct set out in the sub paragraphs of 4(1) is described in the past tense – “has bitten, has behaved” etc. – I think this merely refers to the fact that at the time of swearing the allegation, the conduct in question will necessarily have occurred in the past. 31 . The prosecution theory is not supported by any precedent.

Counsel was unable to cite any case where liability was based solely on breach of an Order without any subsequent dangerous or aggressive behaviour by the dog. 32 . In

summary, there is really nothing to support the contention that past behaviour will suffice. On the other hand, as discussed above, it would be contrary to the specifics of the allegation and contrary to the legislative scheme exempting breach charges from capital liability to accept the prosecution’s theory. It would allow even the most minor breach to open the door to a destruction order. 33 . In conclusion, it is my view that the prosecution could not legally support a conviction under section 4(1)(

b) solely by proof of the breach of a prior Order that had been made as a result of dangerous behaviour on that earlier occasion. Some additional behaviour that posed a menace on the day of the alleged breach was required in order to support a conviction under section 4(1) b of the DOLA. [3] 34 . In this case the evidence failed to establish the required additional behaviour that posed a menace on January 15 2018. To the

contrary: Q: Okay. So if all we had before the court was a dangerous dog designation and just an allegation of a breach of an order, this dog on the screen right now would not be considered a menace necessarily? A: Correct. There was no action Evidence of Amanda Barrett; Transcript May 18 P 73 L 20 The errors at trial: 35 . The trial Justice concluded: ….. The defence further argued the event of January 15 2018 is a mere breach of a court order and does not constitute a menace. The court is not persuaded.

Tyson acted in a menacing manner on January 15 th 2018, the court finds that given the background of Tyson, that he had harmed two persons and a dog in a vicious manner, given that he was wandering loose, unleashed in January 15 th 2018, which is in accordance – contrary to a court order, the court finds that this is in itself a menace. The court does not have to wait until someone or some other animal have been harmed before it could impose the dog’s destruction. The [court] finds that the breach of January 2018 was a menace given this background. Transcript February14 2019 P 8 L 20 36 .

It is apparent that the trial Court essentially accepted the prosecution’s theory of liability and concluded that wandering loose contrary to a court order in itself amounts to a menace, considering the dog’s past behaviour. For reasons given above, I am of the opinion that such a path to capital liability is not available and that the trial Court therefore erred in law. 37 . Further, with all due respect , it is my view that the reasons disclose other significant errors as well: • The onus was on the prosecution, albeit on a balance of probabilities, to prove the allegation.

Yet the hearing justice in the middle paragraph quoted above reversed that burden and placed it on the defence to persuade her that there was no menace.

Nowhere else in the reasons is the correct onus of proof applied or even mentioned. • If it is suggested that the “finding” made at the start of the second paragraph above – “Tyson acted in a menacing manner on January 15 th 2018 …” – can be divorced from the balance of the paragraph (which I suggest it cannot) then such a finding was unreasonable or alternatively, the reasons were insufficient to identify the basis for the finding that the dog “ acted in a menacing manner”. • It was an error to deal with sentence in the same breath as conviction.

This error was perhaps understandable in that the prosecution at trial proved the prior Order and then the breach (both admitted) and then embarked on an item by item exploration of the “Considerations” listed in section 4(6) – which by its terms only applies at the sentencing stage. The defence repeatedly objected to this approach and pointed out that a conviction under 4(1) had to be made before 4(6) was engaged. [4] In my view the defence was entitled to separately address sentencing.

He had some points he could have made in mitigation – for example Tyson’s history disclosed a single prior incident of aggression; there was no breach of the interim control Order during the approximately 9 months while on bail. Unacceptable Risk: 38 . With respect to the last paragraph of the reasons quoted, I am mindful of this concern and it was urged on me as well by the prosecution in the argument of the appeal. Do we have to wait for the dog to again attack or cause harm? The concern is certainly a valid one that has troubled me considerably in this case. 39 .

A quick response is that, if there is a gap in the legislation that may expose the public to risk, it is up to the legislature to correct it and not for the court to stretch the

interpretation of the words used in the statute in a way that permits a result that is clearly contrary to the legislative intention. 40 . But beyond that, it seems to me that properly viewed the present legislation adequately covers this situation with paragraph 4(1)(C) – the failure to exercise precautions offence: [5] (

c) the owner did not exercise reasonable precautions to prevent the dog from, (

i) biting or attacking a person or domestic animal, or (ii) behaving in a manner that poses a menace to the safety of persons or domestic animals. 41 . It would be my

interpretation that, unlike sub-paragraphs 4(1)(

a) or (b), under this sub-paragraph no biting or menacing behaviour needs to occur. Rather the

section aims at the failure to take precautions to prevent such an occurrence . An analogy can be drawn to many other areas of legislation and regulation where pre-emptive protection is the primary focus. Examples include workplace safety

statutes or fire safety regulations that create offences and sanctions for failure to take precautionary measures regardless of whether an accident occurs or a fire breaks out. 42 . Further, regard should be had to the wide powers of search and seizure – with or without warrant - granted to officers to enter, seize and remove a dog “if it is not desirable in the interests of public safety that the dog be in that location”. A single prior instance of biting, attacking or behaving in a menacing way is deemed to fulfill the “not desirable” prerequisite. [6] 43 .

In short there is no unacceptable risk if all available enforcement and charging options in the present legislation are considered and utilized where appropriate. Order: 44 . The appeal is allowed, the conviction under section 4(1)

b) of the DOLA and the Order for destruction of the dog are set aside. The dog must be released to the appellant. No further Order can be made by this court under sub section 4(3) since there is no conviction under sub 4(1). 45 . However the Dangerous Dog Order under the by-law and the Order of Quon J.P. under the DOLA remain in full force and effect. The Appellant must demonstrate compliance with the terms of those Orders before the dog is released to him. Failure to do so within 30 days of this judgment will permit Brampton Animal Services to deal with Tyson as an abandoned and unclaimed dog. 46 .

The charge under section 4(1.1), breach of Order, was not contested at trial. The Notice of Appeal is not specific as to whether that conviction was appealed and there would be no grounds to do so given the concession. [7] If it was appealed, the appeal from that conviction is dismissed. July 17 2019 B Duncan J A Zaitsev for the Appellant Legal Department, City of Brampton for the Respondent APPENDICES Appendix # 1. Dangerous Dog Restrictions Order September 2017 I 2. Order under DOLA Quon J November 16 2017 II 3. Statement under s 161 POA sworn January 31 2018 III 4.

Interim Order for control dated May 18 2018 IV 5. Final Order for destruction dated February 14 2019 V

Appendix I

Appendix II

APPENDIX III

APPENDIX IV

APPENDIX V

[3] I will deal below with the argument that such an

interpretation exposes the public to unacceptable risk.