Thursday, October 30, 2008

How an attempt to help could have meant her life

Just the other day, Shasta and I heard what sounded like a puppy in distress outside. Before I could even think, Shasta had bolted opened the screen door and ran in the direction of the distress cries. I ran right after her totally afraid as she wasn't muzzled or leashed.

This is not abnormal for the Pit bull breeds to save people and animals. If you look back at some of the Hero Dogs, you will see many that have been honoured and given awards for their bravery. Some even gave their lives to save others. Take a look at Positively Pit Hero's and see for yourself.

Unfortunately, here in Ontario with the Pit bull Ban, Shasta's attempt to rescue a distressed pup could have meant her life. Her bolting out of the door like a bullet could have been perceived as an aggressive act as she ran towards the dogs. Two Jack Russel's were on the landing on the steps outside barking and growling at her. She wasn't interested in them, but sniffing around for the crying pup. I don't think she associated these two dogs from the dog she heard in distress.

I ran after her and the neighbours that were there told me they had never seen me move so fast. I wasn't thinking pain. My only concern was catching Shasta and getting her into the apartment safely. Naturally, I was in tears crying and finding it hard to breath.

The woman appologized to me for the upset and I doubt she even knew the fear I was feeling or why. Everything was quick and like a blur. My neighbours told me Shasta looked confused, but though the other dogs were barking and growling, Shasta was only sniffing. I said, "Yes! She was looking for the distressed pup we heard."

They told me there wasn't a third dog. It was the two dogs that did everything from whimpering, barking and growling. No wonder Shasta was confused as so was I. I asked the woman who kept on appologizing to me to PLEASE take her two dogs in the doors. I just wanted to lead Shasta back home through the back in through the patio and shut ourselves in.

I'm not worried about my neighbours or the woman with the dogs, but some observer from another building that may have taken the full incident out of context. A knock on the door from ACC and Shasta could be taken away from me and held pending upon a trial.

I would literally be a basket case as Shasta is my life, my service dog that helps me with my daily living as well as my other half and fur-baby.

The Liberal government has put responsible dog owners in a state of panic and fear. That's why we MUST win our case against Michael Bryant and the Liberal government's faulty law.

If you look to Calgary, Alberta's you will see a bylaw that makes sense. You'll find much information in the City of Calgary Responsible Pet Ownership Bylaw.

There hasn't been a knock at my door and I hope I don't get one. Should I have to be this afraid?

Sunday, October 26, 2008

In memory of Spanky

Today has been a very hard and sad day for us. Us, meaning my son, Michael, his fiance, Robin and of course me.

Robin phoned me early in the day. I think it was morning, but what she had to say to me was so unexpected. Spanky, Michael's Pit/Pei hadn't eaten for a couple of days and hadn't drank water for probably as long.

When Michael took him out in the backyard that he loved to play in, he just stood there for awhile before wanting back in to lay down. So unlike him who was full of energy even at the age of 13.

Robin and I took him to our vet's who did a physical with all signs normal except his temperature was low due to dehydration. He also needed a blood test, but my vet said he would fax to the Emergency Clinic as they had all the facility's there, where as it would take days before he got the results back. He didn't charge us for his services and wished us well.

The result of the blood tests showed infections in both the kidney and liver. Had Spanky been a young dog, the results could turn out differently, but because of age, he said it was most probably end of life and extensive exams and medications wouldn't mean Spanky would get better. Possibly it could give him another day or even week.

I try to look into the vet's eyes to see what he would do in this situation. Finally, I'm not sure if it was Robin or myself who asked the question. He had given us three options and the second one would not have helped Spanky. The vet himself told us that and that was to take him home and self medicate him, plus force him to drink water. So we never even considered that.

Robin phoned Michael and he had just gotten home from work, she told him exactly where we were so he could come to make the decision.

Once Michael came he asked more of the 1st option. Him staying for 4 days with IV and given medication. I was glad we got a vet who was sincere and genuinely concerned about Spanky rather than giving us BS. He told him he wanted to be completely straight with us and personally he figured it was end of life for Spank and his kidney and liver showed real signs of wear and tear. As much as he would rather be able to give us a better outcome, he said he couldn't. Spanky had a wonderful life with a lot of love from what he could tell, but it's his time to go.

Michael, as emotional as the two of us told the vet his concern was not money, but for Spanky. He wanted to do the right thing for Spank rather than him having to suffer. To get rid of the infection wasn't going to correct his liver or kidney and asked if he could develope another infection because of them. The vet agreed that the most humane would be the hardest option.

The three of us all wanted to say our good byes to him and be with him until the very end. Robin and I were so happy we didn't put Spanky's muzzle on him today. I was happy that BSL didn't rob Spanker-doodle from us. He was a wonderful boy that gave us years of happy memories and while we grieve today and have a part of our hearts with a vacancy, we have to honour his memory with all the silliness and great times we had together.

Spanky walked in on his own to us and the vet removed the lead. He put a huge comforter folded on the floor and told us to take all the time we needed. This room was for us as long as we needed. We all kissed and patted Spanky, talking to him with tears rolling down our faces. I cried even more as he tried to lick my tears away.

We had unfolded the comforter and it wasn't until he finally went to it and lay down as if to say, it's time now.

Spanky was Michael's very first dog that he got as a young teen. He had never seen a dog put to sleep before, but wanted to be with Spank. The vet explained in detail exactly what he was going to do and what was going on as he went through the process. We all spoke and stroked Spanky the whole time with more tears than you imagine could can come out of you. I've gone through the drill so many times, but it never gets easier as one of your family is leaving you.

Now gone where there lays no more pain for him we only have memories to hang on to. Michael will be reminded the most, especially during times he goes to take him out, or feed him, or simply want to play with him. Knowing he's gone, yet still in disbelief.

Spanky, you gave so many people so much love, but your true love was always Michael. We'll miss you, you Lil' Stinker, but I'll come for you at Rainbow Bridge as we go through heaven's gates together.

Shasta will miss you too, Spanky. She sniffed me when I came home and knows your scent. I believe she knows my tears are for you as she washes them away as you did.

All our love is with you forever.

Saturday, October 25, 2008

Cochrane v. Ontario (Attorney General) (October 24, 2008)

Cochrane v. Ontario (Attorney General) (October 24, 2008)

CITATION: Cochrane v. Ontario (Attorney General), 2008 ONCA 718
DATE: 20081024
DOCKET: C47649
Laskin, Sharpe and Cronk JJ.A.


Catherine Cochrane
Applicant (Appellant/ Respondent by way of cross-appeal)
Her Majesty the Queen In Right of Ontario, as represented by the Attorney General of Ontario
Respondent (Respondent/ Appellant by way of cross-appeal)
Clayton C. Ruby and Breese Davies, for the appellant/respondent by way of cross-appeal
Robert E. Charney, Michael T. Doi and S. Zachary Green, for the respondent/appellant by way of cross-appeal

Heard: September 15 and 16, 2008

On appeal from the judgment of Justice Thea P. Herman of the Superior Court of Justice dated July 27, 2007, with reasons reported at 2007 CanLII 9231 (constitutional challenge) and 2007 CanLII 29973 (remedy).
Sharpe J.A.:


[1] The appellant attacks the constitutionality of Ontario’s law banning pit bull dogs. As a violation of the law can result in a penalty of imprisonment, the appellant invokes the right not to be deprived of “life, liberty, and security of the person… except in accordance with the principles of fundamental justice” guaranteed by s. 7 of the Charter of Rights and Freedoms. She argues that a total ban is grossly disproportionate to the risk pit bulls pose to public safety, rendering the law unconstitutionally overbroad, and that the law fails to provide an intelligible definition of pit bulls, rendering the law unconstitutionally vague. She also argues that a provision allowing the Crown to introduce as evidence a veterinarian’s certificate certifying that the dog is a pit bull violates the right to a fair trial and the presumption of innocence, contrary to s. 11(d) of the Charter.

[2] In 2005, in the aftermath of a series of highly publicized pit bull attacks resulting in serious personal injury to several victims, the Ontario Legislature amended the Dog Owners’ Liability Act, R.S.O. 1990, c. D.16 to ban the breeding, sale and ownership of pit bull dogs: Public Safety Related to Dogs Statute Law Amendment Act, 2005, S.O. 2005, c. 2. The pit bull provisions allow those who own pit bulls born at the time the amendments came into force or 60 days thereafter to keep their dogs (“restricted pit bulls”). However, owners of restricted pit bulls are required by regulation to have their dogs sterilized and to leash and muzzle their dogs when in public places.

[3] The appellant owns a “Staffordshire terrier cross” that is a restricted pit bull. In support of her overbreadth argument, the appellant submits that the legislature cannot justify the law’s total ban on pit bulls and blanket application to all restricted pit bulls. It is her contention that there is insufficient evidence to indicate that all pit bulls are inherently dangerous and that significantly less drastic measures could satisfy any concern for public safety. In support of her vagueness argument, the appellant contends that the Act fails to provide an adequate definition of pit bulls and that it is impossible to determine whether a dog is or is not caught by the legislation. Finally, the appellant argues that the veterinarian certificate provision denies the right to cross-examine on crucial evidence and creates a mandatory evidentiary burden and thereby violates the right to a fair trial and the presumption of innocence protected by s. 11(d) of the Charter.

[4] The application judge rejected the overbreadth argument. She accepted the appellant’s vagueness argument but only to a limited extent. The application judge struck down part of the definition of “pit bull” but left the most significant part of the definition intact. She accepted the appellant’s s. 11(d) argument and struck down the veterinarian certificate provision.

[5] The appellant comes to this court asking us to reverse that judgment and to strike down the pit bull provisions as being unconstitutionally overbroad and vague. The Attorney General cross-appeals and asks us to restore the definition of “pit bull” as enacted by the legislature. The Attorney General also cross-appeals the order striking down the provision relating to the use of a veterinarian’s certificate.

[6] For the following reasons, I conclude that the pit bull provisions do not violate any right guaranteed by the Charter. Accordingly, I would dismiss the appeal and allow the cross-appeal.


[7] The pit bull provisions prohibit the ownership, breeding, importation or transfer of pit bulls. Under regulations promulgated under the Act, individuals who own a restricted pit bull are required to muzzle, leash and sterilize their dogs: Pit Bull Controls, O. Reg. 157/05, ss. 1-2. Under s. 18 of the Act, a person who contravenes any provision of the Act or regulations is guilty of an offence and liable, on conviction, to a fine of up to $10,000, six months imprisonment or both.

[8] Subsection 1(1) of the Act defines the term “pit bull” as follows:
“pit bull” includes,
(a) a pit bull terrier,
(b) a Staffordshire bull terrier,
(c) an American Staffordshire terrier,
(d) an American pit bull terrier,
(e) a dog that has an appearance and physical characteristics that are substantially similar to those of dogs referred to in any of clauses (a) to (d); (“pit-bull”)

[9] Subsection 1(2) provides:
In determining whether a dog is a pit bull within the meaning of this Act, a court may have regard to the breed standards established for Staffordshire Bull Terriers, American Staffordshire Terriers or American Pit Bull Terriers by the Canadian Kennel Club, the United Kennel Club, the American Kennel Club or the American Dog Breeders Association.

[10] The provision relating to the admissibility and use of veterinarians’ certificates reads as follows:
19. (1) A document purporting to be signed by a member of the College of Veterinarians of Ontario stating that a dog is a pit bull within the meaning of this Act is receivable in evidence in a prosecution for an offence under this Act as proof, in the absence of evidence to the contrary, that the dog is a pit bull for the purposes of this Act, without proof of the signature and without proof that the signatory is a member of the College.
(2) No action or other proceeding may be instituted against a member of the College of Veterinarians of Ontario for providing, in good faith, a document described in subsection (1).
(3) For greater certainty, this section does not remove the onus on the prosecution to prove its case beyond a reasonable doubt.


[11] There was conflicting evidence before the application judge regarding the dangerousness of pit bulls. The applicant’s evidence was to the effect that pit bulls are not inherently dangerous; that Canadian statistics indicate that pit bulls were involved in relatively few reported bites or attacks; and that most pit bulls pose no threat to public safety. The Attorney General relied on evidence of a series of pit bull attacks that had resulted in serious personal injury, including harm to children; expert evidence that pit bulls tended to be unpredictable in their behaviour and susceptible to unprovoked attacks; and evidence from the United States indicating that pit bulls were involved in a disproportionately high number of serious incidents.

[12] The application judge ruled that the applicant had failed to make out a violation of s. 7 of the Charter on grounds of overbreadth. She held that the legislature could act on a “reasoned apprehension of harm” and that conclusive evidence that pit bulls pose a threat to public safety was not required so long as the legislative response was not “grossly disproportionate” to the legislative objective. She found that it was unnecessary to resolve the conflicting evidence as to the danger posed by pit bulls and that the record established a sufficient body of evidence to permit the legislature to conclude that a total ban on pit bulls was required to protect the public.

[13] With respect to the vagueness challenge, the application judge concluded that, when read as a whole, ss. 1(1)(b)-(e) and (2) provide a sufficient definition to survive s. 7 scrutiny. However, she found that as there is no recognized “pit bull terrier” breed, the inclusion of “a pit bull terrier” (s. 1(1)(a)) was unconstitutionally vague. She also found that the use of the word “includes” in the definition of “pit bull” rendered the definition unconstitutionally vague. Accordingly, she struck down the word “includes” and s. 1(1)(a) and read into the opening of the definition of “pit bull” the word “means” in place of the word “includes”.

[14] With respect to s. 19, the application judge found that a trial judge has the discretion to permit cross-examination of the veterinarian and therefore rejected the contention that s. 19 violated the accused’s rights to a fair trial. However, the application judge also held that s. 19 created a mandatory evidentiary burden that violated the right to be presumed innocent guaranteed by s. 11(d) of the Charter and that the violation could not be justified as a reasonable limit pursuant to s. 1. She held that the appropriate remedy was to sever s. 19 and to strike it down.

[15] The application judge also rejected the applicant’s submissions that the pit bull provisions were ultra vires the province and that they conflicted with federal legislation. No appeal is taken from those findings.

[16] In view of the divided success, the application judge declined to award costs.


[17] The appeal and cross-appeal raise the following issues:
(1) Are the pit bull provisions unconstitutionally overbroad?
(2) Is the definition of “pit bull” unconstitutionally vague?
(3) Does s. 19, providing for proof that the dog is a pit bull through a veterinarian’s certificate, violate s. 11(d) of the Charter?
(4) If there are any violations of the Charter, are they justified pursuant to s. 1?
(5) To the extent that the pit bull provisions are unconstitutionally vague, is severance and reading in the appropriate remedy?
(6) Did the application judge err by refusing to award the appellant costs?


Issue 1. Are the pit bull provisions unconstitutionally overbroad?

[18] Overbreadth is a term used to describe legislation that, as drafted, covers more than is necessary to attain the legislature’s objective and thereby impinges unduly upon a protected right or freedom. A law is unconstitutionally overbroad if it deprives an individual of “life, liberty and security of the person” in a manner that is “grossly disproportionate” to the state interest that the legislation seeks to protect. Such a law is said to be “arbitrary” and offends “the principles of fundamental justice” and therefore violates s. 7 of the Charter. A law that restricts the rights guaranteed by s. 7 is also “arbitrary” unless it is grounded in a “reasoned apprehension of harm”. The onus of proving that the law is “arbitrary” or “grossly disproportionate” lies on the applicant: see R. v. Malmo-Levine, [2003] 3 S.C.R. 571, at paras. 78, 133, 143.

[19] The Attorney General concedes that as the Act provides for a potential penalty of imprisonment, the s. 7 right not to be deprived of “life, liberty and security of the person… except in accordance with the principles of fundamental justice” is implicated. There is no dispute that the legislative purpose of the pit bull provisions is to reduce, and ultimately to eliminate, the risk of pit bull attacks in Ontario. The appellant concedes that the protection of the public from dog bites and dog attacks is a legitimate legislative objective.

[20] The contentious issue is whether the appellant satisfied the onus of demonstrating that the law is “arbitrary” or “grossly disproportionate” to the legislature’s objective.

[21] The appellant relies on evidence to the effect that not all pit bulls are inherently dangerous and argues that by imposing a total ban on all pit bulls, whether shown to be dangerous or not, the sweep of the law is excessive and not capable of justification as proportionate to the alleged risk pit bulls pose to public safety. The appellant’s evidence may be summarized as follows:
· Expert opinion that most dogs, including pit bulls, are kind and gentle and that many pit bulls have never bitten anyone and that it is not possible to link dangerousness to breed.
· Evidence that a variety of factors other than a dog’s breed determine dangerousness, including: inherited and learned behaviours, breeding, socialization, function and physical condition and size of the dog, reproductive status, popularity of breed, individual temperament, environmental stresses, owner responsibility, victim behaviour, victim size and physical condition, timing and misfortune.
· Statistical and expert evidence that pit bulls are responsible for only a small proportion of recorded bite incidents and fatal dog attacks in Canada .

[22] The Attorney General responds with evidence that pit bulls do pose a serious threat to public safety. That evidence may be summarized as follows:
· Evidence of four savage pit bull attacks resulting in significant personal injury shortly before the enactment of the pit bull provisions and the evidence of several police officers who confronted and shot pit bulls that were attacking someone or that were aggressively threatening police officers.
· American expert witnesses who observed highly aggressive behaviour unique to pit bulls, not exhibited by any other type or breed of dog, and who considered pit bulls to be a recognized danger to public safety.
· An American statistical study finding that pit bull-type dogs were involved in a high proportion of dog bite related fatalities in the United States from 1981 to 1992.
· Expert evidence that pit bulls can be unusually unpredictable and as they have a tendency to attack without warning or provocation, there may be nothing a potential victim can do to prevent or avoid an attack.

[23] The application judge carefully reviewed and analyzed this evidence and concluded as follows, at paras. 74, 79 and 84 of her reasons on the constitutional challenge:
[T]here is inconclusive and competing evidence in the case at hand. However, conclusive evidence is not required before a government can take action. It is also not necessary for the court to resolve the conflicting evidence. There is, in my opinion, sufficient evidence to conclude that the legislature, in enacting these provisions, had a “reasoned apprehension of harm” concerning the dangerousness of pit bulls.

It is my opinion that, in the face of this conflicting evidence, the legislature was entitled to decide that there was a sufficient body of evidence with respect to the inability to identify dangerous pit bulls in advance of an attack so as to justify restrictions that apply to all pit bulls. The recommended alternative approaches to breed-specific legislation largely depend on either a previous dangerous act or a responsible dog owner identifying a dangerous dog and taking appropriate action. Where public safety is concerned, it was open to the legislature to choose the more cautious approach.

It is not my task to substitute my opinion for that of the legislature as to how best to protect the public. It is also not necessary for me to resolve the conflicting evidence as to the role that breed plays in determining whether a dog is dangerous and whether pit bulls, as a breed, are dangerous. The legislature, in determining how to accomplish its objective, is not required to have conclusive evidence before it enacts legislation. 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”. In the face of conflicting evidence as to the feasibility of less restrictive means to protect the public, it was open to the legislature to decide to restrict the ownership of all pit bulls.

[24] The appellant submits that the application judge erred by refusing to make findings of fact and by failing to resolve the conflicting evidence. The appellant submits that the application judge was required to decide whether pit bulls are in fact inherently dangerous and whether a total ban on pit bulls was required to meet the legislature’s concerns in relation to public safety. Without making such findings, the appellant submits, the application judge was not in a position to dismiss the overbreadth challenge.

[25] I disagree with the appellant’s submissions and see no error in the approach taken by the application judge. In my view, the appellant’s submission misstates – and significantly understates – the burden that rests upon a claimant who challenges a law under s. 7 on grounds of overbreadth. As I have stated, the test for a breach of s. 7 on grounds of overbreadth is whether the law is “arbitrary” because there is no “reasoned apprehension of harm” or whether the law is “grossly disproportionate” to the legislative objective. To meet that test, the appellant had to satisfy the onus of demonstrating that the legislature did not have a basis for a “reasoned apprehension of harm” from pit bulls or that the action taken by the legislature was “grossly disproportionate” to the risk posed by pit bulls. Fairly read, the reasons of the application judge indicate that she quite properly focussed her analysis on these issues. In my view, the record amply supports the application judge’s conclusion that the appellant failed to satisfy the onus of demonstrating a breach of s. 7 on grounds of overbreadth.
(i) Ban not arbitrary

[26] The application judge applied the well-established Charter principle that where the risk of harm or the efficaciousness of Parliament’s remedy is difficult or impossible to measure scientifically it is for the legislature, not the courts, to decide upon the appropriate course of action, provided there is evidence of a “reasoned apprehension of harm”. It was not the role of the application judge to make detailed factual findings as that would lead to “micromanagement of Parliament’s agenda”. Her task was rather to apply the “relevant constitutional control”; namely, “the general principle that the parliamentary response must not be grossly disproportionate to the state interest sought to be protected”: see Malmo-Levine, at para. 133.

[27] The Supreme Court of Canada has consistently held that the “legislature is not required to provide scientific proof based on concrete evidence of the problem it seeks to address in every case” and that in the absence of “determinative scientific evidence” it is appropriate for the court to rely “on logic, reason and some social science evidence” to determine whether there is “a reasoned apprehension of that harm”: see Harper v. Canada (A.G.), [2004] 1 S.C.R. 827, at paras. 77-78.

[28] In R. v. Sharpe, [2001] 1 S.C.R. 45, at para. 89, McLachlin C.J. stated with respect to disputed evidence regarding the impact of child pornography that “the courts cannot hold Parliament to a higher standard of proof than the subject matter admits of” and that as “some studies” linked child pornography to the incitement of offences, a “reasoned apprehension of harm” was made out. Similarly, in R. v. Butler, [1992] 1 S.C.R. 452, at pp. 502-503, another case dealing with disputed evidence regarding the effects of pornography, Sopinka J. assessed the evidence as being “inconclusive” but, applying Irwin Toy Ltd. v. Quebec (A.G.), [1989] 1 S.C.R. 927, at p. 990, recognized that the government must be “afforded a margin of appreciation to form legitimate objectives based on somewhat inconclusive social science evidence.”

[29] In each of these cases, the Supreme Court declined to make factual findings on disputed scientific evidence and, once satisfied that there was sufficient evidence to give rise to a “reasoned apprehension of harm”, deferred to legislative judgment. The application judge correctly took the same approach and concluded that there was sufficient evidence of a reasoned apprehension of harm to permit the legislature to act.

[30] I disagree with the appellant’s submission that this reasoning applies only at the minimal impairment stage of s. 1 and that the application judge erred by applying it to determine whether there had been a violation of s. 7 on account of overbreadth. First, as a matter of authority, the Supreme Court of Canada appears to have assimilated the minimal impairment analysis under s. 1 with the overbreadth analysis under s. 7: see e.g. R. v. Clay, [2003] 3 S.C.R. 735, at para. 35; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, at p. 629. Second, as a matter of principle, I fail to see why the determination of whether legislation is overbroad and therefore in violation of s. 7 should involve a more stringent test than the test to determine whether minimal impairment has been satisfied. The s. 1 minimal impairment test only comes into play when the government is attempting to justify an infringement of Charter rights. If anything, one would expect the test to be more stringent where the claimant has demonstrated a Charter breach and the onus rests with the government to demonstrate that the breach is justified.
(ii) Law not grossly disproportionate

[31] To determine whether a law is “grossly disproportionate” to the legislative objective, one must consider the nature and gravity of the alleged Charter infringement in relation to the importance of the legislature’s objective. As the application judge correctly observed, the right to own a dog is not protected by the Charter. The applicant is able to invoke s. 7 only because of the possibility that a court might impose a penalty of imprisonment for violation of the Act, an unlikely prospect absent blameworthy conduct by an owner leading to personal injury. This possibility of imprisonment must be weighed against the risk that pit bulls pose to public safety. The test of gross disproportionality clearly incorporates a substantial measure of deference to the legislature’s assessment of the risk to public safety and the need for the impugned law: R. v. Heywood, [1994] 3 S.C.R. 761, at p. 793; Clay, at para. 40.

[32] In my view, the reasons of the application judge demonstrate an entirely appropriate and defensible analysis and weighing of these competing factors. At para. 86 of her reasons, she states:
When one considers the interests at stake, that is, the objective of public safety as against the restrictions on dog owners, it is my opinion that this was a choice that the legislators were entitled to make. I conclude, therefore, that the means the legislature has chosen are not too sweeping in relation to the objective and the provisions are not unconstitutionally overbroad.

[33] I also agree with the application judge’s conclusion that the total ban on pit bulls is not “arbitrary” or “grossly disproportionate” in light of the evidence that pit bulls have a tendency to be unpredictable and that even apparently docile pit bulls may attack without warning or provocation. This evidence of unpredictability provided the legislature with a sufficient basis to conclude that the protection of public safety required no less drastic measures than a total ban on pit bulls.

[34] I agree with the Attorney General’s submission that the Charter does not require an individual assessment of each dog before it can be required to wear a leash or muzzle. Evidence of the unpredictable risk of severe harm is sufficient to allow the legislature reasonably to conclude that pit bulls as a group are dangerous because of the risk they pose. Legislatures frequently enact blanket prohibitions on things or activities that may be used or conducted safely because of the risk that severe harm can result from misuse or misconduct. The prohibition and regulation of certain firearms provides an example.

[35] The legislature’s response to the problem posed by pit bulls is not analogous to the legislative responses in the cases relied upon by the appellant. In Heywood, and R. v. Demers, [2004] S.C.R. 489, the impugned laws directly impinged upon the claimants’ liberty interest in a manner more significant than the pit bull provisions. Furthermore, in those cases, there existed adequate and less drastic measures capable of protecting public safety. In Heywood, the impugned law provided a lifetime ban on sex offenders from frequenting all public parks and bathing areas. The court found that the risk of harm could be satisfied by limiting the ban to parks frequented by children and reviewing the need to continue the order from time to time. In Demers, all permanently unfit accused, including persons who were not a significant threat to the public, were consigned to indefinite assessment and review with no possibility of trial or discharge. The court concluded that indefinite incarceration of such individuals could not be justified.

[36] Accordingly, I do not accept the submission that the application judge erred by rejecting the challenge to the Act on grounds of overbreadth.
Issue 2. Is the definition of “pit bull” unconstitutionally vague?

[37] Vagueness describes a lack of precision in legislation that leaves its meaning and application unacceptably uncertain. Legislation should provide fair notice to citizens as to what conduct is prohibited, appropriate limits on the discretion of law enforcement officials and a proper basis for coherent judicial interpretation. A law that implicates the s. 7 right to life, liberty and security of the person will be struck down as being inconsistent with the principles of fundamental justice if it is not sufficiently intelligible to meet these objectives.

[38] On the other hand, certainty is not the standard and legislation is not unconstitutionally vague simply because it is subject to interpretation. As the Supreme Court of Canada held in Nova Scotia Pharmaceutical Society, at pp. 638-39:
Legal rules only provide a framework, a guide as to how one may behave, but certainty is only reached in instant cases, where law is actualized by a competent authority. In the meanwhile, conduct is guided by approximation. The process of approximation sometimes results in quite a narrow set of options, sometimes in a broader one. Legal dispositions therefore delineate a risk zone, and cannot hope to do more, unless they are directed at individual instances.

Language is not the exact tool some may think it is. It cannot be argued that an enactment can and must provide enough guidance to predict the legal consequences of any given course of conduct in advance. All it can do is enunciate some boundaries, which create an area of risk. But it is inherent to our legal system that some conduct will fall along the boundaries of the area of risk; no definite prediction can then be made. Guidance, not direction, of conduct is a more realistic objective.

[39] It is sufficient for the law to delineate an area of risk. It is only “where a court has embarked upon the interpretative process, but has concluded that interpretation is not possible” that a law will be declared unconstitutionally vague: Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, at para. 79.

[40] The appellant submits that in concluding that s. 1(1)(e) of the Act was not impermissibly vague, the application judge erred for the following reasons:
· The application judge understated the test for vagueness by allowing a law to stand which failed to identify a clear area of risk to dog owners.
· The Canadian Kennel Club does not register any dog as a “pit bull” or recognize the “American Pit Bull terrier” as a breed. There are very few American Staffordshire Terriers or Staffordshire Terriers in Canada and the application of the law rests essentially on the “substantially similar” clause which fails to provide sufficient guidance.
· Subsection 1(2) of the Act, which refers to breed standards, is permissive rather than mandatory and as it does not require a judge to have regard to the listed breeds, it fails to provide sufficient guidance.
· The application judge misapplied expert evidence indicating that it was impossible to identify a pit bull.

[41] I agree with the application judge’s conclusion that the definition of “pit bull” in ss. 1(1)(b)-(e) and 1(2) sufficiently delineates an area of risk and provides a basis for intelligible debate and interpretation. The core of the definition is the reference in ss. 1(1)(b)-(d) to the three named breeds that have defined physical characteristics that are accepted by kennel clubs and dog breeder associations. That well-defined core is not exhaustive, but it provides a point of reference that identifies the essential physical characteristics for pit bulls. The phrase “substantially similar” is commonly used in statutes to embrace a somewhat broader class than that captured by an enumerated list of referents. To the extent that the definition of “pit bull” extends beyond the specified breeds, the substantially similar clause is capable of controlling or limiting the reach of the law within constitutionally acceptable limits.

[42] As the application judge stated at para. 176, the breed standards “provide guidance to dog owners and others to assist them in determining whether a particular dog falls within the definition.” While s. 1(2) permits rather than mandates reference to breed standards, the application judge correctly observed at para. 177 that the court “is required to exhaust its interpretative function before it can be said that a law is vague.” I agree with her conclusion at para. 177 that the reference to the identified breeds “provides an interpretive guide and is sufficient… to provide the necessary guidance or benchmarks.”

[43] The appellant’s arguments must be considered in light of the established jurisprudence dealing with vagueness. In my view, the appellant’s submissions assume that a higher degree of precision is required for a law to survive s. 7 vagueness scrutiny than is warranted by the case law. As the Attorney General points out in its factum, the Supreme Court of Canada has upheld a long list of laws that are arguably more vague and uncertain in their application than the pit bull provisions. The statutory provisions upheld by the Supreme Court include:
· A Criminal Code provision creating a defence to assault where the force used is “reasonable under the circumstances”: Canadian Foundation for Children, Youth and the Law v. Canada , [2004] 1 S.C.R. 76.
· A Competition Act offence of entering into an agreement to “unduly” lessen competition: Nova Scotia Pharmaceutical Society.
· A Divorce Act provision requiring the judge making a custody order to take into account only “the best interests of the child”: Young v. Young, [1993] 4 S.C.R. 3.
· A Criminal Code prohibition against publishing material where a dominant characteristic is “the undue exploitation of sex”: Butler.
· Immigration Act provisions allowing for the deportation of persons who pose a “danger to the security of Canada ” or who are members of organizations who have engaged in “terrorism”: Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3.
· A Canada Elections Act provision limiting the ability of third parties to promote one or more candidates by taking a position on an issue with which they are particularly “associated”: Harper.
· An Environmental Protection Act prohibition against the discharge of a “contaminant” that “causes or is likely to cause impairment of the quality of the natural environment for any use that can be made of it”: Canadian Pacific.
· A Tobacco Act prohibition on the promotion of tobacco products by means that are “likely to create an erroneous impression about the characteristics, health effects or health hazards of the… product or its emissions”: Canada (Attorney General) v. JTI-Macdonald Corp., [2007] 2 S.C.R. 610.

[44] These cases demonstrate that a law will not be struck down as being vague simply because reasonable people might disagree as to its application to particular facts. No doubt individuals, even experts, may disagree about what is in the “best interests of the child”, whether a particular contract would “unduly” lessen competition, whether a specific political issue is “particularly associated” with a given political party, or whether a dominant characteristic of a publication is the “undue exploitation of sex”. Yet each one of those phrases has been held to have sufficient precision to survive s. 7 scrutiny. In these and other areas of social or regulatory policy, the fact that identification and classification does not lend itself to linguistic certainty will not defeat laws which provide a degree of clarity capable of supporting intelligible debate. In my view, given the nature of the subject-matter and the importance of the objective, the Attorney General’s submission that the impugned provision gives sufficient guidance is well supported by the authorities cited.

[45] It is worth noting that while not directly applicable to a Charter challenge, vagueness challenges to similar definitions in municipal by-laws restricting pit bulls have failed in Canada: Madronero v. Lachine (Ville), [1990] Q.J. No. 307 (S.C.); Manitoba Assn. of Dog Owners v. Winnipeg (City), [1993] M.J. No. 661 (Q.B.), at paras. 11-13, aff’d [1994] M.J. No. 643 (C.A.).

[46] I note as well that laws banning or restricting pit bulls have been enacted in many American jurisdictions and American courts have overwhelmingly rejected vagueness challenges to pit bull laws containing definitions similar to the one at issue here. Included in the long list of cases to this effect cited by the Attorney General are: Hearn v. Overland Park, 244 Kan. 638, 772 P.2d 758 (1989), cert. denied, 493 U.S. 976 (1989); State of Ohio v. Anderson, 57 Ohio St. 3d 168, 566 N.E.2d 1224 (1991), cert. denied, 501 U.S. 1257 (1991); American Dog Owners Asso. v. Yakima, 13 Wn.2d 213, 777 P.2d 1046 (1991); Colorado Dog Fanciers, Inc. v. City and County of Denver, 820 P.2d 644 ( Colo. 1991); American Dog Owners Assn. v. Des Moines, 469 N.W.2d 416 ( Iowa 1991); Greenwood v. North Salt Lake, 817 P.2d 816 ( Utah 1991).

[47] I turn now to the issue raised by the Attorney General’s cross-appeal: did the application judge err in holding that the word “includes” in the opening of s. 1(1) and the inclusion of the phrase “a pit bull terrier” in s. 1(1)(a) render the definition of “pit bull” unconstitutionally vague?

[48] The application judge held that it should be presumed that by adding the phrase “a pit bull terrier”, the legislature must have meant to add something to the definition not captured by the balance of s. 1. She found that there is no recognized breed of pit bull terrier and no agreement among the experts as to what dogs are or are not pit bull terriers. At para. 185 of her reasons, she concluded as follows:
[T]he phrases “pit bull includes” and “pit bull terriers” are problematic in so far as they appear to include an undefined number of dogs that fall beyond the three specified breeds and dogs substantially similar to those three breeds. In so far as these terms go beyond the three breeds, they do not, in my opinion, provide sufficient guidance to courts or to those who have to enforce the legislation. They also do not define an “area of risk” for dog owners.

[49] For the following reasons, I respectfully disagree with this conclusion. In my opinion, the definition of “pit bull” as enacted by the legislature survives s. 7 vagueness scrutiny.

[50] There is ample evidence in the record to demonstrate that the terms “pit bull” and “pit bull terrier” are generic, dictionary terms commonly used by members of the public, scholars, veterinarians, animal control officers and humane societies to describe American Staffordshire terriers, American pit bull terriers, Staffordshire bull terriers, and dogs that are hybrids or mixes of these breeds or that have substantially similar characteristics. The terms “pit bull” and “pit bull terrier” are found in many of the articles and the professional literature cited in the record as well as in the testimony of most of the witnesses. The Canadian Oxford Dictionary, 2001 ed., defines a “pit bull” or “pit bull terrier” as “a dog of an American variety of bull terrier, noted for its ferocity”. The legislature cannot be faulted for using vernacular or generic terms to alert the public to the nature of a prohibition also described in more precise scientific or technical language: Canadian Pacific, at para. 53.

[51] The terms “pit bull” and “pit bull terrier” must also be read in their context as elements of a more comprehensive definition. I do not agree with the application judge that by enacting the phrase “pit bull includes” and including the phrase “a pit bull terrier”, the legislature must have intended to add to the reach of the definition of “pit bull” to include a broader class than captured by ss. 1(1)(b)-(e). Legislatures commonly use repetitive and redundant language, repeating commonly used synonymous words out of an abundance of caution to ensure that the terms of a statute are given a compendious meaning. The test for vagueness is unintelligibility, not redundancy, and the inclusion of repetitive language does not render the definition constitutionally infirm.

[52] In addition, the word “includes” does not necessarily require an expansive interpretation extending the definition beyond the itemized list contained in ss. 1(1)(a)-(e). The word “includes” “may… depending on the context, precede a list that exhausts the definition”: Re Canada 3000 Inc. (Re), [2006] 1 S.C.R. 865, at para. 47. Where possible, legislation should be interpreted in a manner that corresponds to constitutional rights and values. To the extent the word “includes” is susceptible of importing an unacceptably vague definition, giving it narrow import as exhausting the definition is preferable to striking it down.

[53] Accordingly, I would allow this part of the cross-appeal, set aside paragraph 1 of the judgment and restore s. 1 as enacted.
Issue 3. Does s. 19, providing for proof that the dog is a pit bull through a veterinarian’s certificate, violate s. 11(d) of the Charter?

[54] Before the application judge, the appellant made two arguments in relation to s. 19:
(i) the lack of a provision for cross-examination in respect of the document from the veterinarian contravenes the right to a fair trial guaranteed by s. 11(d) of the Charter, and
(ii) the fact that the document is proof that the dog is a pit bull, in the absence of evidence to the contrary, infringes the defendant's right to be presumed innocent contrary to s. 11(d) of the Charter.

[55] On the first issue, the application judge concluded that ss. 39 and 46 of the Provincial Offences Act, R.S.O. 1990, c. P.33 give trial judges a discretion to allow for cross-examination of the veterinarian who signed the certificate. She held at para. 215 of her reasons that “it should be assumed that the discretion of the court to give leave to a defendant to cross-examine will be exercised in a way that is consistent with Charter rights and, in particular, with the right to trial fairness and the due administration of justice.”

[56] We agree. This ruling, from which no appeal was taken, is a full answer to the appellant’s first ground of attack on s.19. A trial judge’s discretion to permit cross-examination of the veterinarian is an important safeguard of an accused’s s. 11(d) rights. There is no reason to suppose that leave to cross-examine, if sought, will be improperly or lightly denied.

[57] On the second issue, the application judge concluded that by providing for proof by veterinarian’s certificate, s. 19 creates a mandatory evidentiary presumption that violates the s. 11(d) Charter right “to be presumed innocent until proven guilty”. The Attorney General cross-appeals on this issue. For the following reasons, I conclude that, properly interpreted, s. 19 does not create a situation where the accused is liable to be convicted in spite of a reasonable doubt and therefore does not violate the right to be presumed innocent until proven guilty. I would therefore allow the Attorney General’s cross-appeal on this issue.

[58] As I read s. 19, it simply provides that as proof of the fact that a dog falls within the definition of “pit bull”, the Crown may introduce a certificate to that effect purporting to be signed by a member of the College of Veterinarians of Ontario. Despite the rather complicated wording of s. 19, in the end, when properly interpreted, its legal effect is to overcome the effect of the hearsay evidence rule that would make a veterinarian’s certificate inadmissible. Allowing for proof by way of veterinarian’s certificate does not create a presumption, nor does it violate the presumption of innocence. Rather, s. 19 is an enabling provision that merely affords the prosecution a more expedient method of proving a fact necessary to sustain a conviction.

[59] In R. v. Downey, [1992] 2 S.C.R. 10, at p. 21, Cory J. referred to the landmark case of R. v. Oakes [1986] 1 S.C.R. 103, at p. 115, where Dickson C.J. identified two types of presumptions:
Presumptions can be classified into two general categories: presumptions without basic facts and presumptions with basic facts. A presumption without a basic fact is simply a conclusion which is to be drawn until the contrary is proved. A presumption with a basic fact entails a conclusion to be drawn upon proof of the basic fact. [Citations omitted.]

[60] Presumptions without basic facts are the legal starting point for the determination of a factual issue. Presumptions without basic facts relate to placement of the legal or evidentiary burden of proof as a matter of law. The presumption of innocence is the classic example. Until the Crown proves the guilt of the accused beyond a reasonable doubt, the accused is presumed to be innocent.

[61] Presumptions with basic facts operate by either permitting (a permissive presumption) or requiring (a mandatory presumption) the trier of fact to find the presumed fact upon proof of some other “basic fact”. For example, the provision in the Narcotics Control Act at issue in Oakes required the trier of fact to find an intention to traffic drugs (the presumed fact) upon proof of possession of drugs (the basic fact). Similarly, the provision at issue in Downey involved a presumption from basic facts: s. 212(3) of the Criminal Code provided that “[e]vidence that a person lives with or is habitually in the company of prostitutes… is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution”.

[62] As Downey and Oakes make clear, the focus for inquiry in relation to the presumption of innocence guaranteed by s. 11(d) is this: does the legislative provision create a situation where the accused is liable to be convicted despite the existence of a reasonable doubt?

[63] In Downey, Cory J. explained at p. 29 how this concern may or may not arise in the case of presumptions with basic facts:
Legislation which substitutes proof of one element for proof of an essential element will not infringe the presumption of innocence if as a result of the proof of the substituted element, it would be unreasonable for the trier of fact not to be satisfied beyond a reasonable doubt of the existence of the other element. To put it another way, the statutory presumption will be valid if the proof of the substituted fact leads inexorably to the proof of the other. However, the statutory presumption will infringe s. 11(d) if it requires the trier of fact to convict in spite of a reasonable doubt.

[64] Thus, in Oakes, proof of possession of drugs did not lead inexorably to proof of an intention to traffic drugs. Similarly, in Downey, proof that the accused lived with prostitutes did not lead inexorably to proof that the accused was living off the avails of prostitution. In both cases, the accused were liable to be convicted in spite of a reasonable doubt as to their guilt.

[65] Does s. 19 create a situation where the accused is liable to be convicted in spite of a reasonable doubt, either through the existence of a basic fact presumption or otherwise?

[66] It is clear that s. 19 does not fall into the category of presumptions with basic facts. The veterinarian’s certificate does not prove a basic fact from which the trier of fact may or must find the presumed fact, i.e. that the dog is a pit bull. The certificate is direct evidence of that fact and its evidentiary force does not depend upon any presumption. Section 19 of the Act simply renders the certificate admissible and capable of being used by the trier of fact as direct evidence of the dog’s breed, not as proof of some other fact that in turn allows or requires the trier of fact to presume the dog’s breed.

[67] Could s. 19 nonetheless give rise to a conviction in spite of a reasonable doubt? By providing that the veterinarian’s certificate is “proof, in the absence of evidence to the contrary”, s. 19(1) is, on its face, perhaps suggestive of a reverse onus. However, in the end, I am not persuaded that it has that effect. The provision at issue in Downey used similar language. However, Downey dealt with a presumption with a basic fact which clearly gave rise to the possibility of conviction in spite of a reasonable doubt. Section 19 does not operate by creating a presumption from a basic fact. As the appellant candidly acknowledged during oral argument, s. 19 is not analogous to the statutory provision at issue in Downey. It follows that the reasoning in Downey is therefore distinguishable. Moreover, s. 19(3) explicitly preserves the presumption of innocence and requires the Crown to prove the guilt of the accused beyond a reasonable doubt.

[68] Once the Crown relies on s. 19 to introduce a veterinarian’s certificate that a dog is a pit bull, it is true that the accused risks being convicted unless he or she offers something, either through cross-examination of the veterinarian or by adducing other evidence, to suggest that the dog is not a pit bull. The certificate creates a situation where the accused faces a tactical burden to point to some evidence capable of raising a reasonable doubt as to the dog’s breed. But to the extent that s. 19 thereby creates what may be described as an evidentiary burden, I do not agree that it violates the presumption of innocence. It is simply the tactical burden that any accused faces once the Crown makes out a prima facie case on an essential element of the offence. Unanswered – for the certificate is only “proof” that the dog is a pit bull when it is unanswered – the certificate is proof that the dog is a pit bull. The provision that the certificate is “proof, in the absence of evidence to the contrary” in this context amounts to a statement of the obvious rather than a legal prescription altering the burden of proof.

[69] Finally, to remove any doubt on the matter, I repeat that s. 19(3) explicitly preserves the presumption of innocence, providing that “this section does not remove the onus on the prosecution to prove its case beyond a reasonable doubt.” Nothing in s. 19 relieves against the Crown’s obligation to prove all elements of an offence under the Act to the requisite criminal standard of proof.

[70] Accordingly, I do not agree that s. 19 violates s. 11(d) of the Charter and I would therefore set aside paragraph 2 of the judgment striking down s. 19.
Issue 4. If there are any violations of the Charter, are they justified pursuant to s. 1?
Issue 5. To the extent that the pit bull provisions are unconstitutionally vague, is severance and reading in the appropriate remedy?
Issue 6. Did the application judge err by refusing to award the appellant costs?

[71] As I have concluded that there is no Charter breach, and that the appeal should be dismissed and cross-appeal allowed, it is not necessary for me to consider the issues of s. 1 justification, the appropriate remedy or the application judge’s disposition as to costs.


[72] For these reasons, I would dismiss the appeal and allow the cross-appeal, set aside paragraphs 1 and 2 of the judgment below and dismiss the application. If the parties are unable to agree as to costs, we will receive brief written submissions to be provided by the Attorney General within ten days of the release of these reasons and by the appellant within five days thereafter.
“Robert J. Sharpe J.A.”
“I agree John Laskin J.A.”
“I agree E.A. Cronk J.A.”
RELEASED: October 24, 2008
Cochrane v. Ontario (Attorney General) (October 24, 2008)

We are NOT giving up!!!

Sad and totally disappointed? Yes! Gonna keep fighting? You betcha! All the way up to the top!

Ont.'s highest court says pit bulls are 'unpredictable' dogs, upholds ban

Pit bulls are dangerous and unpredictable dogs that have the potential to attack without warning, the Ontario Court of Appeal said Friday in a decision upholding the province's ban on the animals.

The Ontario government enacted the Dog Owners' Liability Act in 2005 to ban the breeding, sale and ownership of pit bulls after several incidents in which the dogs attacked people.

The Appeal Court ruled Friday that the ban on the breed does not violate any constitutional rights, as lawyers had argued.

The law survived a constitutional challenge in March 2007, though some changes were ordered. Superior Court Justice Thea Herman said a ban on "pit bull terriers" was unconstitutionally vague because it didn't refer to a specific type or breed of dog.
But the Appeal Court disagreed, restoring the law to the form in which it was enacted.

"The total ban on pit bulls is not 'arbitrary' or 'grossly disproportionate' in light of the evidence that pit bulls have a tendency to be unpredictable and that even apparently docile pit bulls may attack without warning or provocation," the judges said in their decision Friday.

"This evidence of unpredictability provided the legislature with a sufficient basis to conclude that the protection of public safety required no less drastic measures than a total ban on pit bulls."

Lawyer Clayton Ruby, who challenged the law, called it a "sad day" in Ontario.
"Kind, loving, gentle dogs are being killed across this province for no reason," he said in a statement.

"The provincial government should focus their efforts and resources on identifying truly dangerous dogs rather than apprehending and killing dogs that pose no threat at all."

Ruby said he is considering an appeal to the Supreme Court of Canada.

Jean-anne Moors of Banned Aid, a coalition fighting the ban, said the group knew it was fighting an uphill battle against the government, but she is still "very disappointed."

"I have three so-called pit bull-type dogs who are all legal under the law," she said, meaning she owned the dogs before the law came into effect and they are muzzled when out in public.

Still, she said, "Everybody's looking at me as if I'm some kind of criminal when I walk down the streets with my dogs. They have no history of aggression."

Moors said the law sets a troubling precedent because it's not just a pit bull issue.

"If a government ... can make such an arbitrary decision that a dog is a bad and dangerous dog and seize it under certain circumstances and destroy it ... that's a matter of concern to anybody who has a dog - period."

Ontario Attorney General Chris Bentley said he was pleased the court upheld the legislation.

"We brought in the legislation because it was important to keep people safe, and our province will do whatever it takes to keep the people of Ontario safe," he said.

Ontario Court Of Appeals Upholds Province's Pit Bull Ban Law
Friday October 24, 2008

It is a major disappointment for those who vowed to fight the controversial ban on pit bulls. The Ontario Court of Appeal has dismissed a well publicized challenge to the law that virtually guarantees the extinction of the animals in this province.

It was initiated by a woman named Catherine Cochrane, who hired high profile lawyer Clayton Ruby to try and strike down the legal restrictions as being too broad. Ruby had argued that the so-called 2005 Breed Specific Legislation so famously passed by then-Attorney General Michael Bryant wasn't clear on what constituted one of the dogs and was too confusing to be enforceable.

But the attempt to get a reversal backfired on the lawyer and his client, when the court not only upheld the law but actually reinstated parts of it that had been found unconstitutional back in March of 2007.

" Justice Herman and now the Court of Appeal have simply accepted the government's assertion that there is a 'reasoned apprehension of harm' about 'pit bulls' to justify the ban, without allowing us to show that there is no credible evidence to support this," Ruby notes in statement.

"The provincial government should focus their efforts and resources on identifying truly dangerous dogs rather than apprehending and killing dogs that pose no threat at all."

The law was originally enacted after a series of high profile attacks by dogs identified as being pit bulls. Under the new rules, the breed can no longer be brought into Ontario and those that are already here must live out the rest of their lives under extreme restrictions. Those include prohibiting them from running loose and muzzling them every time they're out in public.

Those opposed to the law have always maintained it's far too vague in defining what a pit bull is and that it's bad owners and not the animals themselves who should be targeted.

But you may not have heard the end of the back-and-forth barking in this bitter battle. Ruby and his client are both pondering their options and are now considering appealing this latest decision all the way to the Supreme Court of Canada.

But for now, the law stands.

Read it here.

Friday, October 24, 2008

Provincially banned canines common in Ottawa and Ont.'s pit bull ban re-affirmed

Vast views of opinions in Ontario's cities regarding the Pit bull ban is causing the law hard to uphold. For some that agree or appose for a variety of reasons, there is also the cost factor and manpower. Leave it to Michael Bryant to wedged a major dilemma to all involved by placing all the cost of his bill into municipality hands.

Look who's fighting now and it NOT the Pit bull-type dogs...but then again, it never was. It took only one bully to start it all and his name is Michael Bryant as his Fiberal gang followed.

Provincially banned canines common in Ottawa
Officials will act against dangerous animals, but lack resources to enforce law
Patrick Dare
October 24, 2008

OTTAWA - The Ontario government was on a mission a few years ago to rid the province of pit bull-type dogs and passed a law to ban them. But, in Ottawa, the animals are commonplace and city officials are opting to let them alone, as long as they behave.

The City of Ottawa says it will act when a dog of any breed presents a threat to public safety, but the city is not trying to crack down on pit bull-type dogs because it doesn't have the resources to do so, and the law pertaining to the dogs is difficult to enforce.

Susan Jones, director of bylaw enforcement for Ottawa, says that Ontario municipalities told the provincial government in 2005 that they would need some help from the province if it wanted a crackdown on the dogs. No assistance was sent.

Four years ago, pit bull-type dogs were judged a public menace by the Ontario government after a series of horrific attacks on people and other animals in the previous year.

Former attorney general Michael Bryant made it his mission to bring in a legal ban that required owners to sterilize their dogs, tightly control their movement and muzzle them in public. Mr. Bryant called the dogs "ticking time bombs."

The ban passed in the Ontario legislature despite the protests of dog lovers who said banning particular breeds was unfair. The law included fines of up to $10,000 and six months in jail for owners of pit bulls involved in violent incidents.

The law survived a court challenge in 2007, though minor elements of the law were struck down. The outcome of another legal challenge, by lawyer Clayton Ruby at the Ontario Court of Appeal, is being awaited. Even if it stands, the law is having limited impact in Ottawa.

The City of Ottawa has received many complaints about pit bull-type dogs being unleashed, unmuzzled, lunging at people and attacking other dogs since the law came into effect.

A Citizen municipal freedom of information request for complaints about the dogs from January 2006 to July of this year generated about 300 reports on calls to the city's bylaw services.

While some of the calls were simply owners of pit bull-type dogs trying to get information about the law, most were complaints about the dogs, and sometimes owners, who were making neighbours fear for their safety.

Some callers told of homes with two or three pit bull-type dogs. Some complainants said the animals were being bred, clearly in violation of Ontario law. The most common complaints were that the dogs were running around without being leashed and were not muzzled.

While the complaints released do not include names and locations, they do give a clear sense of the intimidation factor with these animals.

"The dog freaks out and lunges at people. Client is deadly afraid of both the owner and the dog," says one report from March of this year. Another report has parents fearful for their children returning home from school due to the presence of a pit bull-type dog running free. In August 2006, two of the dogs "terrorized" the neighbourhood of Alta Vista, according to one complaint.

Officials will act against dangerous animals, but lack resources to enforce law.

On several occasions, Shih Tzu dogs have been attacked. One of these small dogs had to be euthanized in March 2006 in the Bay ward after an attack from a pit bull-type dog named Fubu, which was itself later euthanized. In one report in June 2007, a loose dog in Nepean horrified neighbours by eating a groundhog.

In Ottawa, 20 bylaw officers look into 68,000 complaints in a year on everything from excessive noise to property standards. That work includes about 7,000 animal calls and 200 dog bites.

Susan Jones says her staff only have time to spend on cases of dogs that are a clear danger to the public. She said that in the last eight years, the city has only pushed to euthanize a pit bull-type dog in five or six cases. Most complaints in Ottawa simply result in a warning to the owner.

Ms. Jones says the city doesn't want to spend a lot of money and time pursuing a court case against owners of the dogs when dog breeders say that identifying pit bull-type dogs is not something that can be done with scientific certainty because a "pit bull" is not a breed.

"We don't have the ability to prove it," said Ms. Jones.

Under the provincial law, the banned dogs are defined as American pit bull terriers, Staffordshire terriers, American Staffordshire terriers or any dog that looks similar.

Ms. Jones' philosophy matches that of the Ottawa Humane Society, which supplies pound services for the city and believes dogs need to be dealt with based on their behaviour, not their breed.

Tara Jackson, communications manager with the Ottawa Humane Society, says the society tries to move young pit bull-type dogs into Quebec, where they are legal to have as pets. She says the Humane Society will only euthanize dogs if the animals are extremely aggressive or have an untreatable health condition.

"We don't euthanize based on breed at all," said Ms. Jackson.

Other Ontario cities, such as Toronto, Hamilton and Mississauga, have been more aggressive, holding onto pit bull-type dogs when they are apprehended and often euthanizing the animals, following the letter of the law.

Mississauga euthanized 38 of the dogs in 2007, according to Mississauga Councillor and former federal MP Carolyn Parrish, who is fighting to improve the treatment of pit bulls in her city. Ms. Parrish has been helping a 21-year-old woman fight to save a young pit bull-type dog named Rambo from being euthanized. They were successful and the animal will soon be relocated to Nova Scotia. But the fight began last December and took thousands of dollars to wage.

The City of Toronto has occasionally euthanized entire litters of puppies, though the city tries to find out-of-province homes for the animals.

The City of Hamilton added an officer to deal with the issue and made the animals "a priority call" after the province banned them, says Paul Buckle, manager of animal control. When a pit bull-type dog is taken in after a violent incident, the city finds that most owners consent to euthanasia.

Hamilton euthanized 103 pit bull-type dogs in 2005, 113 in 2006, and another 91 animals last year. So far this year, 54 of the dogs have been euthanized. Mr. Buckle says the gradually declining number of pit bull-type dogs being taken in suggests the provincial law is reducing the population in Hamilton.

Officials will act against dangerous animals, but lack resources to enforce law.

Brendan Crawley, a spokesman for the Ministry of the Attorney General, said that while the government heard "loud and clear" that people wanted to be protected from "the menace of pit bulls," it's up to municipal governments to make decisions on enforcement of the new law.

To improve the control of the dogs, Ottawa Councillor Bob Monette recently proposed to the Ontario government that the pit bull law be changed to allow bylaw officers to fine owners of pit bull-type dogs for a set amount.

Mr. Monette says that the provincial law, requiring municipalities to euthanize pit bull-type dogs that are apprehended, is "an extreme punitive measure." He supports the provincial law on the dogs, but says "there's no real enforcement" because the city isn't interested in euthanizing pit bull-type dogs that aren't a public danger and is reluctant to get drawn into big legal battles over the animals.

Ontario Attorney General Chris Bentley replied in a letter that the existing Ontario law banning the dogs had reduced the population, and that allowing set fines may have the effect of minimizing the seriousness of the offences. He said in his letter to the councillor that the government won't allow the change to the law.

Another story in the is a statement by Clayton Ruby, our lawyer fighting against the breed ban.

Ont.'s pit bull ban re-affirmed

Canwest News Service
October 24, 2008

TORONTO - The Ontario Court of Appeal on Friday re-affirmed a law banning pit bull-type dogs in the province.

Last month, lawyer Clayton Ruby told a three-judge panel the definition of a pit bull under the Dog Owner's Liability Act is vague because it snares dozens of breeds that look like pit bulls, but are other breeds, half-breeds or mutts.

Ruby said Friday he was disappointed by the ruling.

The Ontario Court of Appeal on Friday re-affirmed a law banning pit bull-type dogs in the province.
Scott Webster
Windsor Star

Sadly, the absolute and unnecessary ban on 'pit bulls' in Ontario remains," the lawyer said in a statement.

"We are very disappointed with the decision of the court of appeal. We continue to believe that the definition of 'pit bull' is overly broad and vague. The evidence clearly demonstrates that the definition captures dogs that pose no threat to any person or animal."

He added the court has simply accepted the government's assertion that there is a 'reasoned apprehension of harm' about 'pit bulls' to justify the ban, without allowing opponents to show that there is no credible evidence to support this.

Under the provincial law, pit bulls are defined as American pit bull terrier, Staffordshire bull terrier, American Staffordshire bull terrier or any dog that looks similar.

Owners are required to have their dogs neutered, muzzled and on a leash in public. Violators face a maximum penalty of $10,000 and six months in jail.

Wednesday, October 08, 2008

Rambo goes to court and Death row dog offered new lease on life

Rambo goes to court

Is he a pit bull? Rambo, seen here in a recent picture taken at the Mississauga Animal Control Shelter, is on trial for his life starting today.

By: John Stewart
October 8, 2008

The case of Rambo, the puppy who stands accused of being a pit bull and is on trial for his life, returns to a Mississauga court this morning.Rambo's owner, 20-year-old Gabriela Nowakowska, spent last Christmas in tears after her beloved puppy escaped from the backyard where she lives in east Mississauga and was picked up by a municipal animal control officer.

Nowakowska was eventually charged with owning an illegal dog, since Ontario residents are no longer allowed to acquire dogs defined as pit bulls by legislation that was approved in 2005. That law is still under appeal.

The case became a lightning rod for opposition to the legislation, especially after Ward 6 Councillor Carolyn Parrish championed Rambo's cause. She challenged the City's policy to automatically put down dogs who are identified as pit bulls by staff and insisted that owners be given an option to send the dogs to new homes outside Ontario.

Council agreed to Parrish's suggestion that Nowakowska be granted weekly with Rambo visits at the animal control shelter before the case came to court. The scheduled three-day trial is to begin this morning at 10 a.m. at the provincial courthouse at 975 Burnhamthorpe Rd. W.

Negotiations have been ongoing between the crown and Nowakowska's lawyer, Anik Morrow, towards a possible resolution of the case.

You've heard me write about the case of Rambo. Rambo is a mutt that the ACC labeled Pit bull. Rambo did no crime that he was aware of. He didn't attack or show any aggression towards anyone. Rambo's crime was he accidently got out of the yard and was picked up. The owner broke no law until ACC labeled Rambo a Pit bull.

Ontario's law states that a Pit bull MUST be muzzled and leashed when in public, which Rambo didn't abide to. After all, he is a dog and does what dogs do. I've yet to meet a dog that can read, so accidents do happen even to the best of us.

Rambo had be locked up for so long with many court cases with more to come. He has already spent his time locked up since last Christmas. The most probably outcome was that Rambo would be murdered by ACC for breaking the Pit bull law.

Genuine love for Rambo gave Gabriela the sad courage to put Rambo before herself and allow Rambo to be given away to a home outside of Ontario where he could live a full, happy life. How true is that saying, 'If you love someone so much, let it go.' Unfortunately, unless we win in court having BSL taken out of Ontario's law, the last part of that saying can never come true, 'If they love you back, they will return to you.'

Here is the story of sacrifice and true love in The Mississauga News.

Death row dog offered new lease on life

File photo
Rambo, seen here in a recent picture taken at Mississauga Animal Control, is on trial for his life starting today.

By: John Stewart
October 8, 2008

Rambo, who has been living on doggie death row at the Mississauga Animal Shelter for the past nine months, will get a new lease on life if a proposed deal is approved in court this morning.

Gabriela Nowakowska has agreed that her dog, who is accused of being an illegal pit bull, can be shipped to a new home in Nova Scotia, where an adoptive home for him has been found through a dog rescue group.

The dog, picked up while running loose by the City's Animal Control department last Christmas Day, was accused of being an illegal pit bull under provincial legislation. He could have been executed if Nowakowska and her lawyer, Anik Morrow, had lost their case.

With the dog already having been confined for so long in the animal shelter and the possibility of more court delays looming if the case was not settled in the three days set aside for it this week, the 21-year-old woman decided to send the dog to a new home rather than risk having it killed.

Ward 6 Councillor Carolyn Parrish, who has championed Nowakowska's case and helped find and hire a lawyer for her, says it was an agonizing decision for the young woman to make."Gabriela is very sad," Parrish told The News. "But, in the end, she was more concerned about the dog than she was about making a point."

The controversial legislation that bans Ontarians from acquiring and owning new pit bulls was recently the subject of an appeal hearing in Toronto, where famed lawyer Clayton Ruby led the argument against it. A decision is expected in January at the earliest."

What good would it do if the legislation is struck down and Rambo is already dead?" asked Parrish. "If the object was to try to save a good pet, that's what has been done," the councillor added. Nowakowska has said all along that she wanted her dog to live but she also wanted him to stay with her. She has been visiting Rambo regularly over the past few months after City council amended its regulations to allow owners to visit animals expected to be incarcerated for lengthy periods.

Parrish said the dog has grown considerably and might be difficult to handle in a small apartment such as Nowakowska's. The deal between the crown and Nowakowska's lawyer was to be finalized today in a municipal courtroom on Burnhamthorpe Rd. W.

Parrish said that although there will be no court ruling stating that Rambo is not a pit bull as she had hoped, the fight has not been in vain. The City has made significant changes as a result of the Rambo case, she said, including the granting of "visiting rights" to incarcerated dogs and the requirement to offer owners the chance to have the dogs shipped out-of-province in similar circumstances in future.

Selma Mulvey, an advocate for dog owners' rights and blogger on animal issues who is supporting appeal of the pit bull legislation said, "I guess this means that either they didn't want to kill a good dog or they didn't think they could prove that Rambo looked like one of the rare breeds targeted for extinction in Ontario. We all know that there is no such breed as 'pit bull' and that there is no such thing as a 'dangerous breed.' The Rambo case shows that the provincial law is vague, inhumane and unnecessary."

PM'S a pet lover? Prove it.

Here we have it from the horses...or I mean our Campaign Wannabe's. Doesn't give us much of a choice when it comes to issues that our close to our hearts. This story is from the Ottawa Sun and you can find it at under

PM's a pet lover? Prove it.
Layton has a thing for fish, Dion loves Kyoto and Duceppe's a closet pussycat, but Harper curiously mum on furry friends

If Stephen Harper blows this election, it could be because it all came down to dogs, cats, birds, lizards, and fish.

You don't mess around with pet owners.

You don't show them you have a cold, dismissive heart.

There are hundreds of thousands of voting Canadians who own pets, madly love pets, expect their pets to be loved back, and if Jack Layton, Stephane Dion, Elizabeth May and Gilles Duceppe had a single clue about effective electioneering they'd get the word out across the land on the results of the recent questionnaire put to the leaders by the World Society For The Protection Of Animals (Canada).

Harper's responses in particular.

Harper who owns two cats.

Harper, who needs all the love from voters he can get.

The WSPA asked the leaders 11 questions about animal welfare and what they would do to guarantee the protection of Canada's animals.

Naturally, this matter is forefront in the minds of Canadian voters who, as the economy spirals down the drain, are tossing, turning, and weeping all night long wondering how they're going to be able to afford the next bags of kitty litter, kibble and milk bones. Saying "Eat up, think of all the starving pets in Europe," won't work when there's nothing to eat up.

You can't always discern the character of politicians through how they hold wee-wees-diapered babies, but you can come close through their pet-loving capacities. With that in mind, let's look at the answers to the first two questions in the WSPA survey, also of great interest to shrinks.

(1) Why do animals matter to you?

(2) What have you learned from a pet?


Jack Layton. (1) "Animals are beautiful and awe-inspiring in the wild. They humble me and I consider the extraordinary diversity of life. Olivia and I seek as many opportunities as we can to be close to them, but in contexts where the wilderness is not transgressed."

Never mind the friggin' wild, Layton, get to the humane society -- a homeless chow for your wife Olivia Chow and a Jack Russell terrier for you.

(2) "Unconditional love, although I'm not entirely sure about our fish."

Then try, Layton -- you the "conscience of Canadians" (okay, 19% of them) -- showing you're the "conscience of Canada's animals." Deep-six the dumb fish and buy a homeless dog or cat for that "unconditional love."

Gilles Duceppe. (1) "Animals are living creatures. It's important to respect them and treat them with dignity."

But those living creatures known as the other party leaders? NON.

(2) "Pets are a source of joy. Sadly, I no longer have any pets. We used to have two magnificent cats, but after a few years together, we had to give them to a friend because I had developed allergies." Spare us the boo-hooing, Duceppe -- have you ever heard of a dog, bird, fish, lizard?
Stephane Dion, dog owner.

(1) "I have always seen wildlife as a critical part of our environment, sharing the planet with humankind. My entire life I have been fascinated by animals -- how they survive, how they raise their off-spring, how they interact with nature." Especially that breed of wild animal known as The Harper.


(2) "Pets give us the opportunity to stay in touch with our childhood. Not only are pets fun, but they remind us of important values: Loyalty, courage, vivacity. Most of all it is always great to come home from a full day work and be greeted by the unconditional love of a pet." That, and they don't pick out your underwear.

Elizabeth May, dog, cat owner.

(1) "Animals are important in my life because they've urged me to develop compassion. My family and I have always had dogs. I love having animals around to welcome me home." They urged her to develop compassion? Can't beat those talking dawgs.

(2) "I learned from owning sheep when I was young that animals take care of one another and create relationships of attention and reliance."

Like those bosom-buddy animals, the Greens and the Liberals.

From Stephen Harper. (1) No response. (2) No response. All 11 questions. No response.

Leader Profiles

For finding more indepth information on the answers from the canadates, go to
Harper of course did not respond to any of them as you will see as you check each one.

Thursday, October 02, 2008

Pit bull cross released from quarantine Fate of dog yet to be decided

I find this editorial a very strange, mixed up story. I've read in quite a few other articles where a percentage of different breeds have made up a mutt. There is no such test and the only possible way of remotely trying to find out the breeds involved would probably be the Canadian Kennel Club...NOT ACC.

Animal Care Centre are simply employees that do their jobs to the best of their abilities and follow orders, bylaws and laws, but they are NOT experts in the breeds of dogs.

Yet, what is the most dangerous is that ACC can take a person to court demanding that a so called dog is in fact a Pit bull by percentage.

I'm sure there are many mixes that have Terrier in them, but that does not make them a Pit bull.

It also sounds like they are releasing this dog back to it's owner even though they have not yet determined it's fate.

Pierce also mentions that Armstrong was "somewhat apologetic" when she asked them to apologize to Victoria Broadbent for the attack of her dog that lead to death. Who is Pierce to say "somewhat apologetic"? Either she was or she wasn't and if she wasn't, she wouldn't have said anything at all.

It's obvious ACC wants the dog dead and what a better way than make the owner look bad too.

As for Armstrong, I think she better get her dog trained properly and get the dog aggression looked after. If a dog isn't well socialized, it shouldn't be placed with a whole bunch of dogs in the first place and let it run loose. You are just asking for trouble.

If you own a dog, it's your responsibility to make sure it is trained, maintained and contained properly as well as socialized as a young pup if possible.

Pit bull cross released from quarantine
Fate of dog yet to be decided
Posted By By W. Brice McVicar

A cross-bred pit bull that savaged and ultimately killed a dog at Belleville's dog park last month has been released from quarantine, but a decision has not yet been made on its fate. The animal, which was placed under quarantine for 10 days after the Sept. 18 attack, was released from quarantine on Monday. This means the dog can once again be in public places such as the dog park.

"We've released the animal from isolation and that's where our involvement ends," Dave Dodgson, senior inspector with the Hastings and Prince Edward Counties Health Unit, told The Intelligencer. "The rabies vaccination for the animal is up-to-date."

Late last week, Belleville police and Ron Pierce of Pierce Animal Control visited the woman who brought the pit bull cross to the local dog park. The Quinte West woman, Rose Armstrong, was charged under the Dog Owners Liability Act with allowing the dog to attack a person, allowing the dog to attack a domestic animal, failure to muzzle a pit bull, not having the pit bull on a leash and allowing a pit bull to "behave in a manner that poses a menace to the safety of persons and domestic animals." Pierce said there is no doubt the canine is partly pit bull. "It's definitely a cross. The muzzle on it isn't as wide as it should be and I'd say it's about 75 per cent pit bull," he said.

In 2005, the Ontario government passed a law with strict guidelines surrounding pit bulls including a ban on the dogs. Pit bulls that were alive at the time of the bill's creation were grandfathered but breeding of the dogs is no longer permitted. The legislation also requires pit bulls, when in public, to be on a leash and be muzzled. The law, had the dog been a full-blooded pit bull, would have allowed Pierce to seize the animal.

Pierce said the next step is to wait for the Oct. 20 court date to see what happens. He said one possible outcome is that a judge will issue a destruction order for the animal. In his conversation with Armstrong, Pierce said she was "somewhat apologetic" for the attack and asked an apology be delivered to Victoria Broadbent, the owner of the dog which died of the injuries it suffered during the attack.

Though Armstrong can now take her dog back out in public, Pierce said he plans to call her and advise her against it. "I'm going to give her a shout back and let her know if she does take that dog out around other animals she's taking quite a chance," he said. "The dog has an aggression problem, it's aggressive toward other dogs."

Calls to Armstrong by The Intelligencer were not returned.
Article ID# 1228468

Re: pit bull law should be overturned

In the Belleville Intelligencer - Ontario, CA

Re:pit bull law should be overturned
Posted By Susan MacLeod

Thank you for your editorial regarding "pit bull" ban in Ontario.

I wish more individuals would take the time and intelligence to look beyond the lies and manipulation that this ban is based on.

When Michael Bryant and Dalton McGuinty pushed this ban through the system, they decreed this a matter of public safety. Let me assure you that this was never the intention of the legislation.

While over 4000 dogs have been slaughtered under this law, there are many dogs that are still living in Ontario that fall under this crude definition of "pit bullism". Shelters are sending them out of province and this is not a problem with the government. Those who have never owned a pit bull are allowed to adopt one in Ontario...few questions asked.

If pit bulls were such a threat to humanity, then why are we allowed such freedoms with these "ticking time-bombs"? The answer comes down to politics and public perception. Bryant still uses his "pit bull" ban to make him appear as a "get things done" guy.

I prefer my politicians to enact laws that actually improve public safety. It may take more work and more public education, (and less media hype for the politician), but it will eventually work.
Bryant and McGuinty refused to even look at the system for dogs and dog owners in Calgary.
Calgary can truly boast when it comes to their reduction in dog bites and attacks of all breeds. Enacting working laws such as Calgary did would not have given Bryant the same headlines, granted, so it was not in his interest.

Dog lover or not, take the time to educate yourself on how banning a dog by it's appearance does not make you, your children, your neighbours, your pets or anyone else safer as a result.