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BSL challenge in Ontario - Ruby at Supreme Court

THE FIRST day of the legal challenge to Ontario’s breed specific laws got underway in Ontario’s Supreme Court on Monday of this week with the plaintiff’s case being put forward. Renowned lawyer Clayton Ruby was effectively speaking on behalf of the entire anti-BSL movement, as well as every owner of a ‘pit bull type’ breed in the province, although officially his challenge was launched on behalf of 24 year-old Catherine Cochrane and her Staffordshire Bull terrier cross, ‘Chess’.

The Toronto courtroom holds about 40 people and was packed with dog owners, journalists and a handful of Government officials.

Ruby conducted his case with quiet dignity, showing a calm authority and mastery of his subject matter, which was completely at odds with the Ontario Liberal Administration’s strident and haphazard approach to the issue. He started by reviewing the pit bull definition, the restrictions and regulations, the penalties, and the Animals for Research Act.

Ruby outlined three main arguments:

1. Overbreadth - The law is too overreaching in that it captures many dogs not of the proscribed breeds and many dogs that are not dangerous (the stated purpose of the law). He used this category to discuss whether or not pit bulls are more dangerous than other breeds.

It has to be noted that the U.S. courts are not allowed to use overbreadth to strike any law except if it violates freedom of speech. This is not the case in Canada, where the overbreadth argument can be used much more liberally.

The main argument is that the constitution is not there to balance government interest (public safety) against individuals' interests. The constitution is there to protect the individual in spite of a legitimate government interest.

Ruby made a memorable quote which many newspapers and TV reports picked up on, saying: "These dogs are better than most, based on the evidence in Canada, which was not contested by the government".

He also listed the other alternatives that the government could have considered that were less restrictive on a specific group.

2. Vagueness - The law does not provide the ability for a person to know if they are obeying the law and it fails to protect citizens against arbitrary application of the law. A vague law is a law that fails to provide a boundary between permissible and impermissible behaviour.

It was clearly noted by the court that the government selected a group of people – i.e. veterinarians - to be the legal identifier of pit bulls when that same group, represented by the Ontario Veterinary Medical Association has testified that they can’t do so.

There was some discussion on the recent case in Sarnia where a dog accused of being a ‘pit bull’ was found not guilty and where the trial judge specifically said that the law is vague.

Excellent evidence read from canine expert Lee Steeve's testimony that it is impossible identify a breed by its appearance alone. Her response to hard cross-examination was masterful, especially about how, in certain circumstances, poorly breed Labrador Retrievers could be substantially similar to poorly bred American Staffordshire Terriers.

Ruby also Ohio Dog Warden and arch pro-BSL advocate Tom Skeldon from the recent BSL challenge in Ohio, USA case where Skeldon admitted that he couldn’t identify a pit bull.

3. Trial Fairness - Ruby also listed his cross-examinations of police officers and animal control officers, as well as Darlene Wagner (a postal worker and ‘pit bull’ attack victim). This showed very well how difficult it is to pick the pit bull. Some witnesses admitted that they couldn’t identify a pit bull at all. Others picked some of the breeds correctly, but significant numbers were wrong.

During the afternoon, Ruby continued his arguments, focusing a great deal on his third argument - trial fairness.

He first focused on Section 19 of the Dog Owner’s Liability Act, related to accepting into evidence a document ‘purported’ to be from a veterinarian, stating that a dog is a "pit bull".

This is a case of the legislation forcing a judge to admit into evidence what would normally NOT be admissible - a document of opinion without a witness testifying. The Crown can choose not to use such a document, but if they do, the legislation does not give the judge the choice to rule on the admissibility of the evidence. It must be accepted. This is not normal or acceptable.

In addition, the defence cannot cross-examine the veterinarian because he does not need to testify. They can subpoena him as their own witness, but at their own cost. Even then, they cannot cross-examine him; only examine him "in chief". Basically, it's more difficult to "go hard" at him. This shows that the law, as drafted, has been heavily stacked against the defence.

Ruby pointed out that the credibility of the veterinarian is crucial, considering that the identification of breed is the crux of the legislation. The ‘veterinary’ document does not even have to be sworn in front of a JP. There are no safeguards in this substitution to ensure that the statement is likely true.

There is also a mandatory presumption of fact. It substitutes non-evidence (document) for evidence (witness testimony) without an overriding reason why the original witness should not be examined. There are valid reasons for not having a witness testify (protection, national interest, etc), but protecting a vet from cross-examination is not one of them.

Ruby also asked that the judge deem inadmissible some government evidence based on legislative and committee Hansards (transcripts of legislature and committee sessions). The legislative Hansard contained some of Michael Bryant's comments and the committee Hansard contained statements made by members of the public. Case precedent shows a reluctance by courts to accept politicians' legislative comments as evidence and case precedent always refuses to accept statements by members of the public in committee Hansards. This is because neither of these are sworn statements and neither have the option of cross-examination.

The government also has a responsibility to show that there were reasonable alternatives, if they were proposed. Their Hansard choices were biased in their favour, while they ignored the 80% of the committee presentations against the ban, many of which presented reasonable and less restrictive alternatives.

Federal Animal Pedigree Act: Breese Davies, Ruby's associate who has undertaken a lot of work on this case, presented an argument that the provincial (Ontario) law conflicts with the federal (Canada-wide) Animal Pedigree Act. The federal APA stipulates that the only people allowed to identify breeds are pedigree registries, in this case the Canadian Kennel Club. Nobody else in this country is allowed to identify a breed and the only reason that the pedigree registry is allowed to identify the breed is if they have the pedigree of the dog. In conflict with this federal law, the provincial legislation, without any consideration that there is a federal law prohibiting it, gives the province the power to identify breeds and then hands that power even further to veterinarians, whose regulating body (the OVMA) has testified that it is impossible for them to perform this function.

The proceedings closed late on Monday afternoon, with the Ontario government due to present their case against the challenge on Tuesday morning. Observers present commented that Clayton Ruby’s performance was "masterful" and that his arguments were well prepared and certainly appeared to be legally sound. It would be interesting to see what counter-arguments the government could bring to diminish the strength of the challenge.

*As OUR DOGS went to press on Tuesday, due to the time difference between Canada and the UK, we were unable to present the Ontario government’s arguments. However, we will do so in next week’s issue, together with any rulings arising from the challenge and comments on the proceedings.

* With thanks to Steve Barker of the Dog Legislation Council for Canada (DLCC) for his court reporting.