ANITA AHENAKEW Appellant - v. -, 2022 SKKB 243

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 243 Date: 2022 11 09 Docket: CRM-SA-00094-2022 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: ANITA AHENAKEW Appellant - and - HIS MAJESTY THE KING Respondent Counsel: James M. Streeton for the appellant Jodi L. Karasiuk for the respondent ___________________________________________________________________________ JUDGMENT CURRIE J.

November 9, 2022 ___________________________________________________________________________ Introduction [ 1 ] Anita Ahenakew appeals from an order of a justice of the peace that her dog be destroyed. [ 2 ] Ms. Ahenakew pleaded guilty to the charge of owning a dog, Gracie, that without provocation had attacked another dog, Annie, in Saskatoon. The circumstance was that on October 9, 2021 Gracie escaped from a yard in Saskatoon. At the time Annie was on a sidewalk across the street, on a leash beside her owner. On escaping, Gracie crossed the street directly and seized Annie by the throat, shaking her.

Annie died of the injuries that had been inflicted by Gracie. [ 3 ] Having accepted Ms. Ahenakew’s guilty plea, the justice of the peace convicted her under s. 9(4) of The Dangerous Animals Bylaw, 2003 , Bylaw No 8176, of the City of Saskatoon: 9

(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. [ 4 ] The justice of the peace ordered Gracie’s destruction under s. 9.1(5) of the Bylaw : 9.1

(1) A person who is guilty of an offence pursuant to subsection 9(3) or 9(4) is liable on

summary conviction to a fine of not less than the minimum penalty shown in Appendix “B” and: (

a) in the case of an individual, not exceeding $10,000.00 or imprisonment for not more than one year, or both; and (

b) in the case of a corporation, not exceeding $25,000.00, or imprisonment of the directors of the corporation for not more than one year, or both.

(2) A person who is guilty of an offence for which a minimum penalty is not prescribed in Appendix “B” is liable on

summary conviction: (

a) in the case of an individual, to a fine not exceeding $10,000.00 or imprisonment for not more than one year, or both; and (

b) in the case of a corporation, to a fine not exceeding $25,000.00, or imprisonment of the directors of the corporation for not more than one year, or both.

(3) In addition to imposing the penalty under subsection (1) or (2), the convicting judge shall make an order embodying the requirements of subsection 8(4).

(4) An order pursuant to subsection (3) may also include the requirements of subsection 8(5).

(5) Notwithstanding subsection (3), the judge may, in the alternative, order that the animal be destroyed or otherwise disposed of at the owner’s expense and shall give directions with respect to the destruction or other disposition.

(6) A person desiring to appeal an order or conviction pursuant to this

Section shall, within seven days of the order or conviction being appealed from, file a notice of appeal with the Court, and the provisions of

Part XXVII of the Criminal Code apply with any necessary modification. [Emphasis added] [ 5 ] Ms. Ahenakew appeals from the order for Gracie’s destruction, asking that instead she be directed to take whatever less severe measures the court imposes to prevent a further attack. Her grounds of appeal, as set out in her notice of appeal, are that: (

a) the justice of the peace did not provide sufficient reasons for ordering Gracie’s destruction; (

b) the justice of the peace unreasonably placed too much weight on aggravating factors and placed too little weight on mitigating factors; (

c) the justice of the peace did not turn his mind to sentencing options less severe than destruction; and (

d) the order for destruction is a demonstrably unfit sentence. [ 6 ] At the hearing of this appeal Ms. Ahenakew advised that she was abandoning ground (d). She no longer argues that the order for Gracie’s destruction is a demonstrably unfit sentence. Standard of review [ 7 ] There is no dispute that the standard of review on this appeal is as described in R v Lacasse , 2015 SCC 64 , [2015] 3 SCR 1089 , and in R v Regnier , 2016 SKQB 290 .

This appeal court should intervene only if the justice of the peace made an error in principle, or he failed to consider a relevant factor, or he overemphasized the appropriate factors, or he delivered a demonstrably unfit sentence. Sentencing by the justice of the peace [ 8 ] Ms. Ahenakew and Gracie reside at Ahtahkakoop First Nation and were visiting in Saskatoon at the time of the attack. In her submissions on sentencing, Ms. Ahenakew advised the justice of the peace of her willingness to take any and all measures to prevent any further attack by Gracie, including never bringing Gracie to Saskatoon again.

She pointed out that at home she has a chain link fence around her yard, and that she has a muzzle for Gracie when travelling. She also volunteered not to travel with Gracie, but to keep Gracie at home permanently. [ 9 ] In determining that Gracie should be destroyed, the justice of the peace noted at pages T44 and T45 of the transcript that: (

a) Gracie is a 45-pound spayed female pit bull mixed breed; (

b) Gracie has not done something like this before; (

c) Gracie is a family pet and a support dog; (

d) on escaping, Gracie did not just wander – rather, she went directly across the street and attacked Annie; (

e) Gracie was not deterred from attacking by the presence of a person beside Annie; (

f) Gracie’s attack of Annie was not provoked; and (

g) Gracie has been attacked by other dogs, and has been involved in dog fights, in her own community. [ 10 ] At page T44 the justice of the peace cited R v Barber , 2015 SKPC 178 . The justice of the peace specifically noted that in that decision Judge Bazin had set out “a number of factors that somebody in my position has to take into account”.

In particular, the justice of the peace relied on Judge Bazin’s remarks at paragraph 50: [50] In this matter I take into consideration and find it relevant that the dog Ace, without any notice, or any indication of an aggressive pattern, viciously and repeatedly attacked the calf and was found with a jaw lock on the calf’s throat. It is significant that the dog Ace was not deterred by human intervention until actual physical injury to itself did the dog release the calf and leave the scene.

This is relevant as it is an indication that the dog Ace, has acted in a totally unpredictable manner, a manner that the owners and all those supporting the dog Ace had not seen or would have predicted to be in Ace’s character. No explanation was provided for the attack other than I find that it is in his nature, as Ace is a dog. The unpredictable nature of the attack, totally outside of the dog’s general indicated character is a significant factor.

It is the dog’s good character for the majority of time that may well lead others to trust Ace and place themselves or their children in serious danger of an unanticipated unprovoked attack by Ace. [ 11 ] In concluding that he had little choice but to order the destruction of Gracie, the justice of the peace wondered aloud what would have happened if it had been a child that Gracie had attacked. He observed that lots of animals are at large, but they do not attack and kill another animal.

He was significantly influenced by the unpredictability of Gracie’s attack, by it being out of character and unexpected, so that there is no way of knowing whether she might attack again. He relied on Barber in saying that this unpredictability itself makes the situation even more dangerous because no one knows if and when Gracie may attack again. [ 12 ] At the hearing of this appeal, Ms. Ahenakew reorganized her grounds of appeal. As I have noted, she abandoned

the ground that the destruction order was a demonstrably unfit sentence. She argued that the justice of the peace erred in principle in that he: (

a) did not turn his mind to sentencing options less severe than destruction; (

b) mischaracterized a mitigating factor as an aggravating factor; and (

c) failed to consider other mitigating factors. Less severe sentencing options [ 13 ] There are two facets to this ground as presented by Ms. Ahenakew. First, she says that the Bylaw requires the sentencing judge to consider the sentencing options in order from less severe to more severe, to determine whether some combination of options is sufficient to address the situation without the animal being destroyed. [ 14 ] In so saying Ms. Ahenakew points to s. 9.1 and in particular subsections (3) and (4), which provide that – unless destruction is ordered as an alternative – the sentencing court is to order options that are set out in ss. 8(4) and (5). Sections 8(4) and (5) provide:

(4) If the judge is satisfied, on the evidence, that the animal is dangerous, the judge shall make an order embodying all of the following terms: (

a) if the owner removes the animal from the owner’s property, the owner shall muzzle and leash it in accordance with the criteria prescribed in

Section 16 and keep it under direct control and supervision; (

b) the owner shall inoculate the animal against rabies in accordance with the provisions of

Section 17; (

c) the owner shall report the sale or other disposition of the animal to a designated officer appointed pursuant to

Section 23; (

d) where the animal is moved to a different city or municipality, the owner shall notify: (

i) the clerk of that city or municipality; and (ii) the City Clerk; (d.1) where the animal is moved to a different address within the City, the owner shall provide the City Clerk with the owner’s new address; (

e) where the animal is to be sold or given away, the owner shall: (

i) notify any prospective owner that the animal has been declared dangerous, before it is sold or given away; and (ii) notify a designated officer appointed pursuant to

Section 23 of the name, address and telephone number of any new owner of the animal; (e.1) the owner shall, before a person handles the animal, notify the person that the animal has been declared dangerous; (e.2) the owner shall: (

i) disclose the terms of the order to any person who has possession of or control over the animal; (ii) instruct any person who has possession of or control over the animal to comply with the terms of the order; and (iii) ensure that any person who has possession of or control over the animal complies with the terms of the order. (

f) if the animal is unlicensed, the owner shall, at the owner’s expense and within ten days of the date of the order, purchase the requisite license for the animal; (

g) the owner shall have the animal micro chipped in accordance with

Section 18.

(5) An order pursuant to subsection (4) may also include any or all of the following terms: (

a) the owner shall keep the animal in an enclosure which complies with the criteria prescribed in

Section 19; (b) (Repealed – Bylaw No. 9711 – June 29, 2020) (

c) the owner shall display a sign, which complies with the criteria prescribed in

Section 20, on the owner’s 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; (

d) the owner shall have the animal spayed or neutered; (

e) the owner shall take such other measures as the judge considers appropriate. [ 15 ] Ms. Ahenakew notes that the sentencing judge shall order the measures set out in s. 8(4) and may order the measures set out in s. 8(5). These provisions, she argues, establish the order in which the sentencing judge must consider the options. She says that the sentencing judge must start with the options in s. 8(4) and (5) before considering the destruction option. That option, she

adds, is described in s. 9.1(5) as an alternative to the others. [ 16 ] The second facet of Ms. Ahenakew’s argument is that the justice of the peace here did not, in fact, consider options less severe than ordering Gracie’s destruction. [ 17 ] I accept that the sentencing judge must consider the less severe sentencing options, rather than considering only destruction. That is the sense of s. 9.1(5) when it refers to an order for destruction being “in the alternative”. If the less severe options were not considered, destruction would be automatic.

Destruction can be considered in the alternative only if other options are considered. [ 18 ] I do not accept, however, that the sentencing judge must start with a consideration of the least severe options and work through the options to the most severe. The Bylaw sets out the options, but it does not require them to be considered in any particular order. It only is necessary that they be considered. [ 19 ] Thus I agree with Ms. Ahenakew that the option of ordering destruction is not automatic, and that the sentencing judge must consider the less severe options in determining whether destruction must be ordered.

So long as the less severe options are considered, the requirements of the Bylaw are met. This approach is consistent with the approaches taken by Justice Labach in Regnier , by Judge Bazin in Barber and by Justice Barrington-Foote in R v Carpenter , 2017 SKQB 34 . [ 20 ] In Carpenter Justice Barrington-Foote was dealing with provisions of The Municipalities Act , SS 2005, c M-36.1 , that are similar to those of The Dangerous Animals Bylaw, 2003 .

He said at paragraph 14: [14] Further, it is my view that the court should first determine the nature and extent of the risk to public safety, and then determine whether it can be sufficiently mitigated by measures short of destroying the animal. … [ 21 ] In other words, the court cannot determine whether the extreme measure of destruction is needed (as opposed to ordering less severe options) until the court has identified the nature and extent of the risk to public safety. [ 22 ] Here the justice of the peace identified the nature and extent of the risk to public safety.

Referring to Judge Bazin’s analysis at paragraph 50 of Barber , he concluded that Gracie is unpredictable and that, having once unpredictably attacked without provocation, there is no telling whether she again will attack without provocation, perhaps even attacking a child. [ 23 ] While he did not expressly say so, it is evident that in considering this risk to public safety the justice of the peace was contemplating a scenario in which – as occurred in the attack here – Gracie would escape from a building or yard.

In this matter he was dealing with a situation where Gracie was thought to have been confined to a yard, but she got out. In considering the risk to public safety he was contemplating the possibility of a similar escape occurring in future. [ 24 ] The justice of the peace was considering the less severe options when, on at least three occasions in his remarks (pages T42, T43 and T44), he said that the question for him to decide was “what to do with Gracie”.

If he were not considering the less severe options, rather than automatically moving to a destruction order, he would not have made these comments. [ 25 ] Specifically, when he was contemplating a possible future escape by Gracie the justice of the peace was considering the principal proposed less severe option of confining Gracie to Ms. Ahenakew’s yard, enclosed by the fence. He recognized that the option of confining Gracie is not a guarantee that she will not escape.

The prospect of Gracie escaping includes the risk that she will attack again. [ 26 ] Overall, the justice of the peace’s detailed discussion of the circumstances, and of his reasons for concluding that ordering destruction had to be done, can be understood only in the context of him considering whether the less severe options were sufficient to address the risk. [ 27 ] Furthermore, the justice of the peace observed at page T44 that in Barber Judge Bazin set out “a number of factors that somebody in my position has to take into account”.

The only issue addressed in Barber by Judge Bazin was whether to order destruction of the dog or to choose less severe options. Thus, in referring to the factors set out in Barber , the justice of the peace was considering the less severe options. [ 28 ] I conclude, then, that the justice of the peace did consider the less severe sentencing options. He did not err in this regard. Characterizing a mitigating factor [ 29 ] Ms. Ahenakew asserts that the justice of the peace erred when he characterized Gracie’s attack-free history as an aggravating factor.

Rather, she says, the fact that Gracie had not attacked an animal or a person previously was a mitigating factor. [ 30 ] I do not accept that the justice of the peace erred in his consideration of Gracie’s history. Before this attack, Gracie could be expected to not attack, because she had never attacked. Now that this attack has occurred, however, the expectation regarding Gracie’s behaviour had changed. Now her history includes not attacking and it includes attacking without provocation. It cannot be known whether, in future, she will attack or not. This is unpredictability.

It is the unpredictability that was discussed by the justice of the peace, and that he identified as the risk to public safety. [ 31 ] It was logical and reasonable for the justice of the peace to take this unpredictability into account as a factor affecting his decision, as was done by Judge Bazin in Barber . It was, indeed, the major factor in his decision. His decision to order Gracie’s destruction was significantly affected by this unpredictability – by the risk that Gracie in future would attack another animal or even a child.

[ 32 ] The justice of the peace made no error in addressing Gracie’s history. Considering other mitigating factors [ 33 ] Under this ground, Ms. Ahenakew says that the justice of the peace failed to consider, or failed to consider sufficiently, the following factors: (

a) at home she has a chain link fence around her yard, where Gracie spends time; (

b) she has a muzzle for Gracie, for travel; (

c) she has kept Gracie at home since the attack; and (

d) she is willing to keep Gracie at home, specifically not returning Gracie to Saskatoon. [ 34 ] It is true that, in his remarks, the justice of the peace did not specifically address items (

b) to (d). He did note the existence of the fence, and the fact that Ms. Ahenakew has had Gracie spayed. Items (

b) to (d), though, are not so much mitigating factors as they are less severe options in the nature of those set out in s. 8(4) and (5) of the Bylaw . As I have discussed, the justice of the peace did consider such less severe options before concluding that destruction was necessary. [ 35 ] I am not persuaded that the justice of the peace failed to consider, or to consider properly, any relevant factors. Exercise of discretion [ 36 ] Ms. Ahenakew observes that the justice of the peace said that Gracie being unpredictable left him with little choice but to order her destruction. Ms.

Ahenakew says that in so saying the justice of the peace failed to exercise his discretion, instead treating Gracie’s destruction as an automatic consequence of her unpredictability. [ 37 ] I do not read the justice of the peace’s remarks so literally. Rather, I read his reference to having little choice as merely a phrasing selection. He was not saying that the destruction order arose automatically, just to be rubber-stamped by him. Rather, he was emphasizing that the circumstances had persuaded him firmly that destruction was the proper order to choose.

Conclusion [ 38 ] No error by the justice of the peace has been established. For this reason, the appeal is dismissed. The order for Gracie’s destruction remains in force, but (in recognition of the possibility of a further appeal) the order may not be implemented before the expiration of 30 days from the date of this judgment. “G.M. Currie” J. G.M. CURRIE