Pit Bulls Be Banned!
Ontario’s province wide ban on pit bulls just received qualified approval in a far reaching decision on dangerous dogs in Canada. Mr. Justice Herman of the Ontario Supreme Court of Justice (equivalent to the B.C. Supreme Court) recently upheld most of the Ontario Dog Owner’s Liability Act (DOLA) as being constitutionally valid.

Facts
The applicant, Ms. Katherine Cochrane, was the owner of a pit bull named “Chess”. Ms. Cochrane testified in her affidavit that “Chess” was a playful, affectionate and friendly pit bull and a “fixture in my neighbourhood”. Cochrane v. Ontario (Attorney General) [2007] O.S.C. No. 1089 (“Cochrane”).

Affidavits filed by the Attorney General detailed numerous victims of pit bull attacks. One in particular described a vicious attack on a 2 year old boy. The owner of that pit bull, John Robert Martin, was charged and convicted of criminal negligence (more on that later).

Legislation
DOLA established a scheme which made the dog owner liable for damages resulting from a bite or attack by the owner’s dog. In 2005, the Ontario Legislature expanded the legislation and added breed specific provisions banning new pit bulls and grandfathering existing pit bulls. This was in response to several brutal attacks in Ontario. Contraventions under DOLA also resulted in the dog being destroyed.

The comparable legislation in B.C. is section 49 of the Community Charter, which gives animal control officers the power to seize dogs defined as dangerous and to obtain a court order for the destruction of a dangerous dog. Of course, in B.C. we do not have a province wide ban on pit bulls, although some local governments do restrict or prohibit pit bulls and other dangerous or vicious dogs.

DOLA is different from section 49 in that an individual convicted under DOLA can be fined not more than $10,000.00 or imprisoned for not more than 6 months, or both. With the penalties directed to the dog owner, the standard of proof for guilt and conviction under DOLA is “beyond a reasonable doubt” as opposed to the lesser standard of “balance of probabilities” in the B.C. legislation, where the penalties are directed to the dog.

Mr. Justice Herman specified at the outset that he was not dealing with the “wisdom” of enacting legislation banning a particular breed of dogs. He said it was up to the legislature to make the correct policy choice of restricting the ownership of pit bulls. The Court’s legal analysis focused on three issues:

1. Were the pit bull provisions unconstitutionally overbroad or vague?
2. Was DOLA’s mandatory presumption that a written statement from a veterinarian that a dog was a “pit bull” offensive to section 11(d) of the Charter?
3. Was the designation of a particular breed of dog in a provincial statute ultra vires because the designation was addressed in a federal statute?

Court Decision
With respect to the three issues, Justice Herman ruled as follows:

First, the legislation was not overbroad. Although there was conflicting evidence in relation to the decision to target “all pit bulls”, the legislature had a “reasonable apprehension of harm” and the province wide ban was not disproportionate to the objective.

One aspect of the legislation, however, was determined to be unconstitutionally vague. The legislation defined a pit bull as “a Staffordshire bull terrier, American Staffordshire terrier, American pit bull terrier or a dog that is substantially similar in appearance and physical characteristics to any of these three breeds”. However, the legislation also defined “pit bull” to include “pit bull terriers”, a generic definition that the Court found to be unconstitutionally vague and thus struck it down.

With respect to the second issue, Justice Herman found that the mandatory presumption in DOLA that a written statement from a veterinarian that the dog is a “pit bull” offended the right “to be presumed innocent until proven guilty … in a fair and public hearing … “ under section 11(d) of the Charter. That provision was also struck down.

Finally, on the third issue, the Court found that the designation of a breed in DOLA, a provincial Act, does not conflict with Canada’s Animal Pedigree Act and thus, DOLA is valid law.

There was a minor application during the conduct of this Court case where the Attorney General tried to bring in additional evidence after the hearing. The Court ruled against the Attorney General’s application and did not permit the additional evidence. It is interesting because the additional evidence related to John Robert Martin, the owner of the pit bull that attacked the 2 year old child. Eleven days after the conclusion of the hearing, John Robert Martin was killed as a result of an attack by the very same pit bull, his own dog.

Conclusion
Cochrane is a detailed, 261 paragraph decision on pit bulls and provides illumination to local governments dealing with dangerous dog bylaws, their own breed specific bans and section 49 of the Community Charter. Thus it would behoove local governments to review the decision in its entirety before adopting or revising their own bylaws on breed specific restrictions or bans.

Cochrane is now Canada’s leading decision on pit bull bans. If your local government decides to restrict the ownership of pit bulls within its jurisdiction, one telling comment from Mr. Justice Herman says it all:

“Dog ownership is not a right.”

Amen!

Troy DeSouza
Spring 2007

This article was published in Spring 2007 and may be superseded by changes in the law at a later date. It is for general information only. Specific legal advice should be obtained from a qualified lawyer.