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Superior Court upholds Ontario BSL – for now

‘Dog ownership is not a right. The impact of these restrictions on individual dog owners is not, in my opinion, disproportionate to the objective of protecting the public.’
- Superior Court Justice Thea Herman

THE ONTARIO Government was claiming victory over dangerous dogs while critics of the province's Breed Specific Legislation were left licking their wounds last Friday after the controversial law survived a constitutional challenge largely intact.

Two specific, narrow elements of the law a ban on ‘pit bull terriers’ and a section allowing the government to rely on veterinary certificates in identifying banned dogs were struck down in a decision by Superior Court Justice Thea Herman.

Attorney General Michael Bryant, who steamrollered the legislation through the Ontario Assembly two years ago arrogantly claimed victory after the ruling, saying that the province got ‘99 per cent’ of what it wanted: of the 117 provisions in the legislation, only two were affected by the ruling.

‘Pit bulls remain banned, the pure-breed definitions of pitbulls are banned and anything substantially similar to those purebreds are banned,’ Bryant said.

Lawyer Clayton Ruby, who led the challenge, had argued the ban is unconstitutional and too broad because it bans all pit bulls, even though animal experts say the majority of the dogs are friendly family pets.
He vowed to file an appeal but said in a brief statement his side has claimed a ‘substantial’ victory.

Judge Herman upheld the restrictions that apply to purebred Staffordshire Bull Terriers, American Staffordshire terriers and American Pit Bull Terriers, as well as non-purebred dogs with substantially similar appearance and physical characteristics.

In a written decision, she said it wasn't her job to determine if the government made the correct policy choice in banning ownership, but rather to determine whether the legislation was constitutionally valid.

‘The evidence with respect to the dangerousness of pit bulls, although conflicting and inconclusive, is sufficient, in my opinion, to constitute a `reasoned apprehension of harm,’' Herman wrote. ‘Dog ownership is not a right. The impact of these restrictions on individual dog owners is not, in my opinion, disproportionate to the objective of protecting the public.’

However she did change the law in two substantial ways: she decided the ban on ‘pit bull terriers’ is unconstitutionally vague because it doesn't refer to a specific type or breed of dog, and also ruled against letting the province rely on vets to identify those dogs captured by the law.

Neither will ‘have any impact whatsoever on the banning of pit bulls in the province of Ontario,’ said Bryant, who considers the decision a vindication of a law that critics have been denouncing for more than a year.

‘Obviously, a pit bull ban is no panacea nobody ever said it was but what this does is it means that a dog that was never a pet, that is inherently dangerous, can be banned by the government,’ Bryant said.

Not content with crowing about his perceived victory, Bryant ‘talked up his legislation, saying that it would become the template for BSL in the USA too. ‘This is the first legislation of its kind, I would anticipate that it will now be copied in a number of jurisdictions across North America,’ he claimed.

Ontario's Dog Owners' Liability Act was amended by the Liberal government in 2005 and forced owners of ‘pit bulls’ to muzzle, leash and sterilize their dogs or face a $10,000 fine or up to six months in jail or both. It also outlawed the breeding of the dogs or banned them from being brought into the province, including purebred Staffords being exhibited at dog shows.

During the hearing last year, Ruby argued statistics indicate there are other dogs more dangerous than pit bulls.

He cited a Canadian study that found that since 1983, 23 fatalities from dog attacks in which 55 dogs were involved. Only one dog involved was a so-called ‘pit bull breed’ an American Staffordshire Terrier.

Ruby’s evidence was sound and concise, whilst the Crown’s evidence was slated at the time for being vague and based largely on hearsay. Despite this, however, Judge Herman sought to ignore the bad drafting of the Bill’s content but focused entirely on its constitutional application.

In court documents, Crown lawyers argued the ban is necessary to protect the public from potential pit bull attacks. They said attacks by pit bulls are more deadly than from other dogs and pit bulls often attack viciously without being provoked.

The leading opponents of Ontario’s BSL, the Dog Legislation Council of Canada are planning to conduct a hard-hitting political campaign to coincide with the Province’s general election, due to be held on October 10th this year. Currently, Prime Minister Dalton McGuinty’s ruling Liberals hold 69 of the 107 seats, but their support has been steadily declining on a wide range of issues since the last election in 2003, whilst the New Democratic Party (NDP) have been steadily gaining ground.

The NDP opposed the Liberal’s BSL when it was discussed in parliament and their opposition is likely to be a key factor in the DLCC’s political campaign. Certainly all dog owners opposed to the draconian legislation will vote tactically against the Liberals.

A similar concerted campaign by supporters of hunting with dogs in the UK saw several anti-hunting Labour MPs unseated at the 2005 General Election, including Government Minister Steven Twigg. It remains to be seen whether similar tactics will work in Ontario. Meanwhile, Clayton Ruby and the DLCC continue their legal challenges with a further appeal planned.