Steve Barkers reports in chicobandido.blogspot.com/2007/06/judge-does-not-rule-on-remedy-for.html

The original blog article at:
http://chicobandido.blogspot.com/2007/06/judge-does-not-rule-on-remedy-for.html

Here is the full text:

June 29, 2007

Judge does not rule on the remedy for Ontario's Dog Owners' Liability Act


On June 28, 2007, Justice Herman listened to arguments regarding the remedy for the Dog Owners' Liability Act. The purpose of the remedy is to determine what to do with the law, now that three portions of it were found to be unconstitutional.

This is my interpretation of what occurred in the courtroom.I apologize for the late report. This is the first chance I've had to get to a computer.There were approximately 50 people in a courtroom designed to hold perhaps 20, so a lot of chairs had to be grabbed from offices and other courtrooms.

Present for the Applicant's side (us) were Clayton Ruby and Carolyn Wawzonek. Clayton Ruby did all the talking for us.

Present for the Respondent's side (them) were Robert Charney, Michael Doi, and Zachary Green (the usual three), along with another gentleman who I did not recognize. Robert Charney did all the talking for them.

Mr. Ruby went first at about 10:20 and talked for about an hour and fifteen minutes. We took a break, then Mr. Charney talked for just over an hour. Then Mr. Ruby responded, they had some further discussions about costs, and we were done around 1:30.

To get the bad news out of the way first, the judge did NOT make any decision today. There were a number of written submissions, as well as the verbal arguments presented today, and based on the amount of notes and highlighting she was doing, she's got some reading to do before she can make a judgment.

So for now, the law stands as is. It is important to note that, even though she has found parts of the law unconstitutional, until she rules on the remedy (which I'll explain in a minute), the law has not changed from its original form.

I personally am choosing to continue to act now in the same way that I have done since the law was enacted, until I know for sure what is going to be taken out and what is going to be left in.

Both sides presented their submissions regarding costs (i.e., who pays for the lawyers and court costs and how much of the costs is each party responsible for). This was done in writing and the judge will consider these while she is making her decision about the whole thing.

This remedy, as it's called, is necessary because of section 52 of the Constitution Act of Canada, 1982. Section 52 states:"The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect."

Therefore, it is clear that the following three sections of the Dog Owners' Liability Act are of no force or effect, since the judge found them unconstitutional:
a) Section 1(1) - The phrase "pit bull includes:";
b) Section 1(1) - The phrase "pit bull terrier";
c) Section 19(1) - The requirement that the court accept that a dog is a "pit bull" based on a document from a veterinarian.

The first two were found unconstitutional because the judge felt they were vague. The last was found unconstitutional because it placed a significant evidentiary burden on the defence for the sole purpose of being convenient for the prosecution. This, if I understand it, was a violation of the principles of fundamental justice.

This is all just preamble from me to explain some of Mr. Ruby's arguments.

CLAYTON RUBY

Mr. Ruby proceeded to list the three questions that the judge has to answer regarding this now partially constitutional law:

1. Is the law, with the unconstitutional parts removed, consistent with the original objective of the legislature?

2. Can the law stand alone with the unconstitutional parts removed (i.e., is it still understandable and enforceable)?

3. Should it be suspended while the remedy is being determined?It seemed that both sides agreed on question 3, presumably that it did not need to be suspended.

Mr. Ruby's primary argument, and the area where he spent the most time, was the removal of the phrase "pit bull terrier". His argument is that "pit bull terrier" was one of five clauses designed by the legislature, confirmed by the committee, and accepted by the legislature and that it was an essential element of the law. Now that it is no longer there, the very substance, the core, of the legislation has changed dramatically. This entire legislation, at least the breed-specific portion, depends on the definition of "pit bull" and, if the judge is choosing to throw out a piece of that definition, then she cannot just take the rest and say, "well, the legislature would have been okay with this new definition". It is not her job to read the legislature's mind.

Also, Mr. Ruby argued that, because the initial intent of the legislature was to go after all "pit bulls" (as Peter Kormos put it during the committee hearings, the "small p" pit bulls, the mixed breed, backyard bred mutts), the legislature never intended to go after ONLY the purebreds.

The legislature had determined that there was a reasoned apprehension of harm from "pit bulls", yet they did not specify percentages or proportions regarding how many attacks could be attributed to dogs within each of the five clauses individually. So they didn't say how many American Staffordshire Terriers had been responsible for attacks vs. how many "pit bull terriers" had been responsible.

Because they didn't do this (and they couldn't), it is entirely conceivable that the vast majority of those attacks (as perceived by the legislature) could have been from the dogs in the group "pit bull terrier". So, by removing that phrase, the judge could possibly be removing from the law most of the dogs that were the problem, leaving only the purebreds who, by all accounts, could only have been responsible for a "vanishingly small" number of incidents, if any.

Mr. Ruby argued that it is not the judge's place to so drastically change the scope of the law's targets. It is the legislature's responsibility and, as such, the law should be handed back to the legislature to redefine their targets. In other words, the whole law should be thrown out.

In addition, when given the opportunity, the legislature chose not to remove the phrase "pit bull terrier" from the definition. So, if the judge is now removing that phrase, how can she know what the legislature's preference would have been if they had known ahead of time that "pit bull terrier" couldn't be used? Again, neither she nor the government lawyers can pretend to represent the will of the legislature.

Mr. Ruby's main argument is that the Dog Owners' Liability Act is a single comprehensive scheme with a shared definition (i.e., a definition with multiple components that is needed throughout the rest of the law) and shared goals. You cannot simply change the definition with affecting the rest of the law. There is no evidence as to what the legislature would have written into the law had it been forced to not use (or forced to redefine) "pit bull terrier".

Regarding section 19, which is now invalid, this means that, in order to prove their case that a dog is a "pit bull", the government must now bring in an expert witness (likely, but not absolutely, a veterinarian). Due to the expert witness fees charged, this will substantially increase the cost of each and every prosecution, of which there may be thousands. This violates another principle stated by the court in one of the precedent cases, that the changes made by the judge in order to keep a law constitutional must not have a significant budgetary impact on the government.

A good quote from Clayton Ruby: "It is not for this court to pick apart this scheme and put it back together".

There was a lot of talk about "reading in", "striking out", and "reading down", so I think I'll quickly explain these:

"Reading in" is the practice whereby a constitutional judge will add words to the law to make it constitutional. The net effect of these new words may be to include something that was not included before or to exclude something that was included before.

"Striking out" or "striking down" is the practice of removing the unconstitutional words from the law. Again, the net effect could be to include something that was not previously covered by the law or to exclude something that was previously covered by the law.

"Reading down" is to change the wording or to more narrowly interpret the existing wording in order to make the law less broad (i.e., make it constitutional).

Based on prior comments from other Superior and Supreme Court decisions, Mr. Ruby argued that you should only "read in" in areas where the law is SUBSTANTIALLY constitutional and PERIPHERALLY problematic. In other words, if the law is basically sound, but has a few minor technical problems that don't fit with the constitution, you may be able to "read in" additional words to better define those minor areas without substantially changing the effect or purpose of the law.

Mr. Ruby argued that, because the law depends so heavily on the definition of "pit bull", including "pit bull terrier", that it is not substantially constitutional, but on the contrary, because it is a single scheme with a shared definition, any problem with the definition creates a problem throughout the rest of the law.The other major issue was the phrase "pit bull includes:". Note that the judge did not find the word "includes" vague in and of itself, but rather the entire phrase "pit bull includes:", because, she said, there is no generally accepted definition of "pit bull", so the word "includes" becomes very important.

The government says that the word "includes" is exhaustive (i.e., the list of things that follow are the ONLY things that can be pit bulls). Mr. Ruby says that it is inclusive (i.e., yes, the things listed are pit bulls, but maybe other things could be too, and nobody knows for sure). This may seem like semantics, but it is very important because, if the interpretation is that the list is "closed" (can't possibly include anything else), then the phrase "pit bull includes" could remain constitutional, but if the interpretation is that the list is "open ended" (may possible include something else), then the phrase "pit bull includes" could be unconstitutional and, therefore, would have a huge impact on the rest of the law.

There have been extremely few cases that allowed the word "includes" to refer to a closed (exhaustive) list, so history tends to be on our side in this.The question of whether or not the list is "closed" is a case of "reading down". Within two possible interpretations, the judge is more narrowly interpreting the phrase in order to keep it constitutional.

Previous courts have held that, in the cases where Parliament (in this case the Ontario legislature) chose "unequivocal means" of accomplishing their objective, "reading in" or "reading down" in those cases would be a judicial rewriting of the law, which is not allowed. When the choice of means (i.e., how did the legislature choose to go about reducing dangerous dog bites) is unequivocal, then changing the law to use a different means is effectively frustrating the original intent of the legislation.Since documents such as those from the Canadian Hospital Injury Reporting and Prevention Program (CHIRPP) do not include any of the three purebred breeds AT ALL in any of the bite incident reports, then it is inconceivable that the legislature intended to go after only the three purebred breeds. Rather, it intended to go after "pit bull terriers", which the court has already found don't exist (i.e., are unconstitutionally vague).

The definition of "pit bull" is the CORE of this legislation and it cannot be changed by the judge. It must be thrown out.

ROBERT CHARNEY

Mr. Charney, on behalf of the government, requested that clause 1(1)(a) and the entire section 19 be "severed" (removed) from the legislation. His argument is that the law will operate just fine without these.

Severance is an example of "reading down" (removal of parts by the judge to make the law constitutional).

According to prior courts' rulings, the court should interfere with the original legislation as little as possible. Severance (the removal of offending parts) is an ordinary part of constitutional adjudication and should be considered as interfering less that throwing out the whole law.

The court should not invalidate portions of the law that it has already found to be valid, i.e., clauses (b) through (e).The purpose of the court is to keep as much of the law as possible in order to maintain the objective of the legislature that created the law.

The judge has already found that there was a reasoned apprehension of harm from the dogs in clauses (b) through (e), because the judge found that those clauses were constitutional. Therefore, Mr. Ruby can't come back now and argue that these clauses refer to a miniscule number of dogs and should not be kept. That was argued during the main case, the judge made a decision on that already (deciding to keep four of the five clauses), and that overbreadth argument should not be re-argued now, during the remedy phase.

When the committee voted to keep clause (a), even though it had been pointed out to them very clearly that there was no such thing as a "pit bull terrier", that there was no breed standard, and that nobody knew what it was, Mr. Ruby argued that they must have felt that "pit bull terrier" was an essential element of the definition. Mr. Charney states that the committee never voted to keep clause (a) specifically. They did, however, vote specifically to keep clauses (b), (c), and (d). The vote that included (a) was actually a vote on the entire definition of "pit bull", not just clause (a). Therefore, Mr. Ruby's argument that removing clause (a) was frustrating the intent of the legislature is not valid.

A somewhat humourous moment occurred when Mr. Ruby had used statements during the committee by a Mr. Lewis, a lawyer from the government's policy division. Mr. Charney argued that Mr. Lewis' comments could not be considered because he did not represent the government (such as a minister would), but was rather simply a civil servant in the employ of the government. Not much later, Mr. Charney claimed to be representing the government's point of view and the judge responded by suggesting that he too did not represent the government, but was rather only a civil servant in the employ of the government. So that part of Mr. Charney's argument kind of went out the window there.

Mr. Charney stated that the court has to consider two major questions:

1. Is the part that remains so inextricably bound up with the part that was removed that the remaining portion cannot stand on its own?

2. Would the legislature have passed the constitutional portion alone without the unconstitutional part?

He stated that the judge had already determined in her section 1 analysis that the law could achieve the objective of the legislature using only clauses (b) through (e). Section 1 of the Charter deals with the principles of fundamental justice, part of which considers whether or not a law is overkill considering the harmfulness (or lack thereof) of its targets. The judge had already found that, after removing "pit bull terrier" and leaving only the purebreds and "any dog that is substantially similar", the law was still reasonable (and therefore constitutional).

A fair bit of discussion now started regarding the phrase "pit bull includes:".

Mr. Charney stated that the judge has three options regarding this phrase:

1. Leave the phrase as is and interpret the word "includes" narrowly (i.e., that the list following it is exhaustive, complete, and closed). This was Mr. Charney's preference.

2. Change the word "includes" to the word "means". This would require "striking out" the word "include" and "reading in" the word "means", to produce an effect of "reading down" the law by making it less broad.

3. Add the word "only" after the word "includes" so that the phrase would read "pit bull includes only:". This is also "reading down" by "reading in" an additional word, in order to make the law less broad.

Mr. Charney argued that this is all simply a matter of style and that the most important thing to consider is the effect of the change. Look at the original intent of the law and then whatever choice the judge makes in order to make it constitutional would be perfectly acceptable to maintain the original objective of the law.

"Reading in" or "severance" are important tools to avoid intruding on the legislature.

Avoiding interfering with the original legislative objective must be the prime consideration of the court. Courts have held that the techniques of "striking down" and "reading in" do not unduly intrude on the legislature. Mr. Charney argued that the law, as it stands after removal of the unconstitutional parts, is substantially constitutional and only peripherally problematic (the opposite of what Mr. Ruby said it is).

"Reading in" (e.g., adding the word "only") is only appropriate when the objective of the legislature is obvious and where it would further the objective of the legislation or minimally intrude of the legislative objective.

Striking down the entire legislation would interfere with the legislative objective and would cause the intended targets to be left untargeted until such time as new legislation could be drafted. This is more intrusive than simply adding or changing a single word in order to accomplish the original objective.The judge really pushed Mr. Charney with Mr. Ruby's argument that the court cannot know if the legislature would have targeted only the three purebreds and similar dogs, if it had known that it would not have been able to use the phrase "pit bull terrier".

Mr. Ruby stood back up, responded to a couple of arguments by Mr. Charney, and then reiterated his request for the entire legislation to be struck down because the removal of the unconstitutional parts has dramatically changed the scope and impact of the legislation and has increased the cost of enforcing and prosecuting it.The judge thanked everyone and left.

MY COMMENTS

Nobody seems to be too worried about section 19 (the veterinary document). The government is quite happy for it to be severed. We probably are too, but we did argue that section 19 was inextricably linked to the definition of pit bull and therefore couldn't just be struck down on its own.

The key seems to be the other two vagueness issues.

The judge is going to have to decide two things here:

1. Does the removal of the phrase "pit bull terrier" so substantially change the definition that the legislature needs to go back to the drawing board and figure it out again, rather than simply having the judge remove an offending phrase?

2. Can the judge reword the phrase "includes" to "means" or "includes only" without substantially altering the legislature's original objective?

Both sides did well. I really liked some of Clayton Ruby's arguments that I had not thought of before, particularly the idea that throwing out "pit bull terrier" might be throwing out 99% of the dogs responsible for bites.

I recognize, as does he, that pit bull bites are not significant in this province when placed in context with other breeds or types of dogs, but that was not what was at issue here today. Mr. Ruby had to act within the findings of the judge in her original decision. So, even though he may not personally believe that all generic "pit bulls" are dangerous, he had to work within the judge's findings that pit bull bites were significant enough that the government appeared to have reason to target them. So rather than repeating his original argument from the main case that generic "pit bulls" weren't dangerous, he argued instead that removing "pit bull terrier" from the list may indeed be removing a substantial number of dogs that may have originally the main objective of the legislation.

Basically, he said, you can't tell exactly what dogs the legislature was talking about when they talked about "pit bulls", so you can't just remove one piece and say, "well, they weren't really talking about that clause, only the other four". You have to go back to the legislature and get them to rewrite it if you really want to know what they intended.

So, that's about it.

If the law gets sent back to the legislature, we have won, pending an appeal by the government.

If the law gets changed to "pit bull means" or "pit bull includes only", or if the judge narrowly interprets the word "includes" to be exhaustive, then the law will still target the three purebred breeds and dogs that are substantially similar, so we will appeal.

In the middle of all of this comes the election. We may have a decision before then (I would certainly hope), but it will be just before the election and I don't think the legislature will be doing any more work before the campaigning starts.

So, if we win, it is likely that any action by the government would be postponed until after the election. Then the government, assuming that it's still the Liberals in power, can decide whether they want to appeal, rewrite the law to target pit bulls again, rewrite the law to target truly dangerous dogs, or shrug their shoulders and let the law die a natural death, leaving in place the original Dog Owners' Liability Act.

Hope this helps.

Steve Barker