On its face, section 49 of the Community Charter provides a powerful tool to municipalities and regional districts to seek humane destruction of vicious dogs in their jurisdictions. However, the Provincial Court of British Columbia has recently indicated that section 49 does not necessarily operate as a reliable tool to keep vicious dogs out of the community, pending a judicial Order for their destruction.
By way of background, section 49 permits a duly appointed Animal Control Officer, on reasonable belief, to apply to the Court for a euthanasia Order where a dog is dangerous within the meaning of the legislation. By all accounts, section 49 and its statutory predecessor have been fairly widely used, including in an ongoing case involving the Regional District of Nanaimo.
In that case, the Honourable Judge Cowling of Nanaimo recently ordered that two dogs, previously declared dangerous within the meaning of section 49 by the Provincial Court, be released back into the community “on conditions”, pending a re-hearing of the application for their destruction. The dogs had been granted a new destruction application hearing after the owner had won a new trial based on a procedural error. The error was unrelated to the merits of the case, successfully advanced by the Regional District, that the dogs were dangerous and the Supreme Court had found that the dogs’ owner unknowingly “contributed in a significant way” to the error.
The new hearing is scheduled for January 2011, owing to Court backlog. The delay motivated Judge Cowling to release the dogs on conditions. Judge Cowling noted that the dogs would be detained for two years before their second trial would be heard, and there is a “lack of any clear direction in the relevant legislation as to the proper procedure, if any, for animals held in prolonged detention pending a hearing”.
Section 49 provides for seizure of dangerous dogs, and a destruction application must be filed in a timely manner, specifically 21 days. The Regional District submitted that the release of vicious dogs pending a destruction application was never intended by lawmakers. The Regional District argued that conditional release while a hearing is pending, or “bail for dogs”, is deliberately absent from the legislation for several important public policy reasons:
• to keep vicious dogs, pending an Order for their destruction by a Provincial Court Judge, out of the community to ensure public safety, based on an Animal Control Officer’s belief of their dangerous nature and likelihood to cause injury.
• to avoid the likely practical consequence that vicious dogs would disappear from the jurisdiction pending the hearing for their destruction, if released back into the community
• the Provincial Court does not have the discretion to read substantive legal rights into the legislation; the Court’s limited inherent jurisdiction is restricted to matters involving the Court’s procedure.
The Regional District did not appeal Judge Cowling’s decision and currently the owner has claimed one of her vicious dogs on the conditions set forth by the Court.
It might be that lawmakers never anticipated long detention of dogs pending destruction applications. The principal reason for the delay is the length of time required to schedule and hold hearings for applications for destruction. What would appear to be straightforward statutory application hearings have, in practice, become two-day trials, with viva voce evidence from multiple witnesses, including experts.
Maybe the time is ripe for legislative reform to section 49 to address some of the important public policy questions that have arisen about conditional release of dangerous dogs. In addition to the complexity and length of section 49 application hearings, the legislation has been judicially interpreted to permit the Court to declare dogs dangerous within the meaning of the legislation and to simultaneously release the dogs back to their owners on conditions.
In addition to the absence of “bail for dogs”, there is no provision for conditional final Orders in the legislation; such Orders have been made pursuant to the Provincial Court’s discretion, and the Court of Appeal has not yet considered the matter on its merits.
Further adding to the lack of clear direction regarding conditional release of dangerous dogs, section 49 is also silent on the issue of costs. This has serious financial consequences to municipalities and regional districts, given the complex dimensions that destruction applications have assumed. Neither legal costs nor kennel fees are recoverable by a local government authority against the owner of a dog that is ultimately declared dangerous, sometimes after many months of detention.