THE CONSTITUTIONAL challenge to Ontario’s breed specific dog laws was heard in Toronto’s Superior Court last month. Originally scheduled for two days, the hearing was extended for an extra half day as the Government’s lawyers overran their allotted time on the second day of proceedings.
The plaintiff’s arguments were put forward by lawyer Clayton Ruby and were reported previously in OUR DOGS.
On the second day of proceedings, Superior Court of Justice judge Thea Herman called the court to order and asked the Government lawyers to put their argument for the Crown against Ruby’s challenge.
Crown lawyer Michael Doi went through a number of case precedents where upper courts have allowed vague laws. His basic argument was that most laws are general in nature, with the judges dealing with specifics in court cases and that this is no different
There are four points to be made re vagueness:
1. The law must be intelligible. However, according to the case law that Doi quoted, it does not have to be intelligible (i.e., interpretable) by the average member of the public so much as it has to be interpretable by a judge. He made arguments that it is intelligible, based on the statement that the description ‘pit bull’ is so commonly used that everyone knows what it means. He also argued that it is possible to identify the predominant physical characteristics of a particular breed and whether an individual dog has some or all of those characteristics.
2. There must be an area of risk defined. What risk is the law trying to prevent? This was brought up later when the Crown attempted to prove that pit bulls are dangerous enough to be specially regulated.
3. The law is entitled to speak generally and allow the judges to balance specific arguments pro/con during a court case.
4. The threshold for vagueness is very high. Courts are reluctant to find laws unconstitutional due to vagueness without first trying to interpret the law exhaustively in other ways.
Doi then focussed on the definition of a ‘pit bull’. He brought up numerous court cases where the word was used and accepted, as well as testimony from both sides that used the word. He argued that it is an identifiable dog, that ‘pit bull’ refers to American Pit Bull Terriers, American Staffordshire Terriers and Staffordshire Bull Terriers and these dogs that are substantially similar.
He then discussed the breed standards for the three purebred breeds, basically to prove that it is possible to identify the unique characteristics of a breed by sight alone.
Doi also requested that the ‘pick the pit bull’ pictures NOT be allowed into evidence. Ruby had earlier used these pictures to show that police officers were not able to accurately identify pit bulls. His argument is that the plaintiffs were unable to prove, through registration papers and/or other methods, that the 25 dogs shown were actually the breeds listed. In theory, because they didn't prove that (in his view), they could all be pit bulls or they could all be Jack Russell Terriers. There was no proof that the dog in the picture is the breed is what the plaintiffs said it was.
The purpose of the rest of the Crown’s presentation was to attempt to persuade the judge that pit bulls need to be treated differently from other dogs. As such, pit bulls must be shown to be more dangerous, so much effort was put into this. If the Government were successful in this attempt, then that would go towards proving the risk to public safety that is required for legislation to be considered reasonable.
The Crown discussed their evidence, originally received back in February and March, related to six separate attacks by dogs that were identified as pit bulls. They discussed the details of each attack, including graphic descriptions of the attacks themselves, of the injuries they caused, of the repair and recuperation required, and of the long-term effects of these attacks. Five out of the six attacks were horrific in nature. The other, although injurious to humans, particularly children, did not result in quite the level of injury, but was used in part to try to show the tenacity of the attacking dogs.
The six incidents were:
Carrie Hewitson (young adult, Brantford, 3 dogs, 2003); Darlene Wagner (postal worker, Chatham, 2 dogs, 2004); Robert Adams and brother (12 and 4 year old boys, Ottawa, 2 dogs, 2005); Jadon Laroux (sp?) (2 year old boy, Ottawa, 3 dogs, 2005) and father and neighbour; Lauren Harper (5 year old daughter of Louise Ellis, Toronto, 1 dog, 1994); Tom Skeldon testimony (young boy, Ohio, unknown number of dogs)
Previously, no part of the witnesses' testimonies related to these attacks was challenged by Mr. Ruby.
The Crown also presented the testimonies of various police officers related to shooting attacking pit bulls. Judge asked if other non pit bull breeds had ever had to be shot by police officers.
Crown was unable to answer this because no evidence had been introduced regarding this. The lawyers and the judge can only deal with evidence that had already been introduced back in February and March.
Crown made two points regarding targeting pit bulls:
1. The legislature has perceived pit bulls as a problem and has the right to address it.
2. It is not the role of this court to determine the wisdom of the legislation, just its constitutionality.
Later, the judge Herman made a comment that a number of the attacks listed seem to clearly indicate a problem with the owners rather than with a particular type of dog. She also made the rational argument that problem owners will simply move to a different breed.
Doi’s answer was to discuss how assault weapons were not allowed Canada, no matter how good an owner one may be. He described pit bulls as the ‘assault weapons of the canine world’.
Doi asserted that it is a valid State interest to protect the public from harm. He went on to ask how much harm do you need to justify the state interest? One judicial decision stated that, once it has been demonstrated that the harm is not trivial or insignificant, then it is Parliament's job to determine how much to legislate.
A reasoned apprehension of harm is all that is required. Doi argued that the Government does not have to scientifically or statistically prove the harm exists before legislating preventive measures.
In one case discussed earlier, obedience training was a suggested alternative for management of a pit bull. Crown argued that muzzling and leashing are also valid and reasonable management tools and that sterilization is the ultimate management tool that eventually eliminates the risk of harm entirely.
The third day of extended proceedings, saw the Crown starting with the arguments about ‘trial fairness’, which was Clayton Ruby's third reason for unconstitutionality.
The crown argued first about Section 19 of the Dog Owner’s Liability Act, where a document from a vet can be entered into evidence as ‘proof’ that the dog is a pit bull. Ruby's argument was that cross-examination of a document was not possible and that, even if the vet is called as a witness, because the defendant would have to call the witness, the defence can only examine the witness ‘in chief’, not cross-examine him. This means that it is dependent on the judge as to how ‘rough’ the defence can get with the vet.
Crown pointed to the section Provincial Offences Act (POA) that applies to proceedings under DOLA. Part IV, Section 46, subsection 2 says that the defendant is entitled to make full answer and defence. Subsection 3 says that the defence may examine and cross-examine witnesses
Then the question was put ‘how do we get a vet into court?’ The answer given was that the defence may issue a summons. What does it cost to get a vet? The court costs are $5.00 (i.e., not prohibitive) and are only applied upon conviction.
Also, the defendant could easily bring a motion before the judge to allow cross-examination (i.e., treat the witness as hostile).
Even without cross-examination, the defence could still put contradictory evidence to the witness and, if the witness is hostile, request permission to cross-examine.
The crown's basic argument was that, in order for cross-examination to NOT be possible, the legislation would have to EXPRESSLY prohibit it, which the DOLA does not.
Under Canadian law, Section 1 of the Constitutional Charter requires a ‘proportionality analysis’ to determine if the legislation is reasonable in its attempts to achieve its objective.
The proportionality analysis consists of three parts:
1. There must be a rational connection of the challenged portion to the purpose of the legislation. In this case, the challenged portion is the banning and restrictions of pit bulls. The purpose of the legislation is dog bite reduction and public safety. Is there a rational connection between banning pit bulls and increasing public safety?
2. The legislation must minimally impair the lives of those it affects. This brings in the discussion of alternative measures that the government did or did not consider. Does banning pit bulls minimally impair those it affects compared to other, more generic, legislation?
3. The legislation must be proportional to the risk of harm. Is banning pit bulls an overly extreme measure considering the risk of harm from the dogs?
Using a case related to obscenity charges for pornography (which was used throughout this case), the court in that case noted that, while there is NOT a direct link between obscenity and harm to society, it is reasonable to assume that exposure to certain images could change a person's attitude towards the group depicted in those images (specifically women and children).
In the face of insufficient social or scientific evidence, it is sufficient that Parliament had a reasonable basis for assuming harm. Parliament does not need proof in order to reasonably predict harm. The government is afforded a margin of appreciation to achieve their objective of public safety. Although there was no conclusive proof of harm, the legislation could reasonably conclude that there was harm. In the BSL challengers’ case, the Crown contended that their proof is actually better than the proof that was in the obscenity case and that legislation was upheld.
The judge responded by stating that the issue is not whether pit bulls cause harm, but whether it is JUST pit bulls causing harm or whether other dogs could cause or have caused similar harm. She asked the question ‘is that harm caused because the dogs are pit bulls’?
After a great deal more legal prevarication, the Crown rested its argument. Clayton Ruby was invited to sum up the plaintiff’s side. Ruby told the court that the government was basically asking the judge not to make any findings of fact. In fact, they were saying ‘For God's sake, don't make any findings of fact!’ This, according to Ruby, was because the facts are not on their side. The whole point of their argument was: ‘We're the government. Trust us!’
Ruby went on to demolish the Crown’s arguments step by step. On the basis of the law’s ‘rationality’, Ruby pointed out that if significant harm can and has been caused by all breeds of dog, then rational connection is lost between the harm to society and the ban on pit bulls.
Regarding pit bulls attacking without warning, specifically regarding temperament testing, Ruby discussed the American Temperament Testing Society results. He also quoted the now infamous Ohio case, where all experts except one agreed that all dogs give warning signs before biting.
In response to the Crown's suggestion that alternatives other than banning pit bulls were in RESPONSE after attacks have already occurred, Ruby noted that other portions of the DOLA allow for proceedings against an owner before an attack ever occurred (menace to public safety, failure to prevent a dog from being a menace to public safety).
After Ruby sat down, Judge Herman gave a brief summing up. She stated that she was reserving her decision upon consideration of all the evidence. No time frame for her decision was given, although anti-BSL campaigners are hopeful that this would be delivered within the next two to three months.
If the judge rules against the Government and declares the law unconstitutional, then the law will be considered void, which would be a major blow to the Liberal administration.
With thanks to Steve Barker of the Dog Legislation Council for Canada (DLCC) for his court reporting