Tuesday, April 28, 2009

Nine Months is Nine Months Too Many!!! FREE BRINDI NOW

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A heartfelt message made by Linda Koekman last fall and updated in January a few days before the Supreme Court victory was announced. Little did anybody imagine that the city would choose to lay charges then (the first ever) and hang on to my poor dog. Little did I imagine my lawyer would fail to find a way to stop them. In hindsight and with a lot of hard work I believe I now know several things he could have done before and after that day; the most powerful would have been to insure that release was included in the "form of order" agreed on by the winning and losing party following the court decision. And if the release of the decision had been delayed by just one day, it would have also rendered it impossible for the city to lay any charges, and they would have HAD to send her home!! Who knows, there might have been a way to head off the charges with some kind of action - I begged him to do something. 
These are things that could have happened right then, between Jan. 16 and Jan. 19; there are several other things that could have been done since. 

And to this day. Because it does not appear the city is legally entitled to hold a dog without a specific "purpose": every warrant has to have a purpose. On the day of the seizure (July 24) the justice of the piece who signed the warrant was informed about only one purpose for it to remove a "dangerous dog" from a home (section 176 Municipal Government Act). The law does not go any further than that as far as what is to be done with the dog; it's presumed the rest will be decided in court, because NORMALLY charges are filed, and the owner is either fined or summoned to court, etc.
After a seizure (of anything) that is carried out on a warrant a report must be filed the next day with the same justice of the peace. The report must clearly state where things go from here: what "purpose" or disposition is there in detaining whatever was seized and the legal basis for doing so. In our case this report stated that the purpose was to hold her for two weeks and then euthanize her, period. The report cited as its legal basis the now infamous Section 8.2.d of By-Law A300. This is the section of the law that the supreme court invalidated on Jan. 16. 

As an aside:
1. The euthanization order was issued the very same day as the warrant. So then why was the justice of the peace who issued the warrant not told about this purpose? Perhaps because it was out of sequence? That is, the animal services department makes clear that every seizure is followed by a "thorough investigation" before a decision is made. They were simultaneous in this case. And only 4 days passed between a reported incident and the order/seizure, without any statement taken from the owner (me). Nobody even informed me of the report until the day they took my dog.
2. The information filed with the warrant request is inaccurate: it includes mention that Brindi bit people walking by the house. No such thing ever occurred and no dates or names are mentioned; also other key information is lacking and the grounds for seizure are rather vague.)
To return: the order to euthanize was invalidated by the Supreme Court on Jan. 16 when it quashed section 8.2.d of A300, which illegally made an AC officer cop, prosecutor, and judge. This means:
  • at no time was the order to euthanize valid, and
  • since euthanasia was the sole stated "purpose" in the report filed to the justice of the peace after the seizure, it follows that the entire period of impoundment was illegal,
  • it also follows that the impoundment remains illegal to this day, as no new warrant was issued nor was the existing one extended. 
The notion that detaining my dog is covered by section 176 of the Municipal Gov. Act (a provincial law) is dubious for two reasons: 
  • First, the stated purpose for holding her was A300; it is not automatically umbrella'd by the reason given the day before.
  • Second, as of this year the city has a classification for a dangerous dog and a license to go with it. This must mean that as far as Halifax is concerned, a person is entitled to keep a dangerous dog if it is properly licensed and maintained. Even íf the charges are related to my dog being dangerous (and they do not appear to be), the law does not automatically grant the power to impound her; nor charges alone ever authorize seizure under A300. 
  • If the city argues she can't be released pending the trial because she is dangerous, then why has she not been classified as dangerous? We asked about this and the city solicitor stated in writing that she has not been entered into the municipal registry - at the time (late January) there was no registration for a dangerous dog. Now there is. But I just renewed her registration and it was handled as a normal license for a spayed female dog. It would be a bit obvious if on reading this information, the city turned around and changed that license - and if it did, it would be eliminating the reason it says it is holding her!!
  • Further: the entire issue of declaring a dog dangerous probably ought to be decided by a judge, not an animal control officer; this is one of two or three other parts of A300 that I asked my lawyer to quash. I do not know why he omitted this, nor can I answer why he did not include the warrant in the original case, as I hired him to get my dog home to me  without penalty or constraints (including the gratuitous muzzle order, if at all possible, grrrrr) other than what I had already offered: to pay fines (meaning charges if laid) and to build a fence.
  • No property can be held longer than 3 months unless an ongoing court proceeding requires it, i.e. as evidence. A dog is not evidence for the kind of by-law violations involved here.
The problem is: my ex-lawyer did not put this argument before any judge with a request to get her out attached to it! He attempted to quash the warrant before a provincial judge on Jan. 29 but told me in advance not to expect anything. He didn't try that hard either; just a short statement, no details of the case. He said the judge was not sure she had jurisdiction, and she said so in court, and added that in any case she was not prepared to hear it that day. At the arraignment (for the charges) on Feb. 3 another provincial judge raised the question about the warrant at the start, unbidden; he really seemed ready to rule on it. My lawyer didn't respond other than to hem and haw and move some law books around on his table. The prosecution did not respond much either, other than to mumble a bit. After a minute the judge moved on to the charges and demanded a plea. And so on. 

The trial was then set to begin Feb. 24. My lawyer had quit by then, leaving no time for me to find a new one or for a new one to prepare, even if I found one. So with a lot of trepidation I asked for an adjournment and also asked the judge about the legal basis for holding Brindi. I did not get very far with my question or my explanation, however. This time the judge did not address the warrant, nor did he even ask the prosecutor to present his grounds for holding her. Instead the judge said it was not his jurisdiction to decide on the question! He said if the prosecutor dropped charges she could be released; otherwise the case would have to proceed and depending on the verdict and what followed after that he would rule on her release (yes or no). 

The prosecution stated very plainly in court on Feb. 3 and Feb. 24 that its purpose in prosecuting the charges is to seek a euthanization order from the judge rules guilty or not guilty. There are three charges and all are alleged to have happened on the same day, July 20. They are: owning a dog that runs at large; owning a dog that attacks an animal unprovoked, and failing to obey a muzzle order. The fact they were laid one hour before the legal limit ran out raises a lot of questions as well -but they can't be addressed in court on June 5, unless I contest the charges. While it could be very successful I don't know how long that approach would take. Having said that, it could easily take much longer to continue pleading not guilty and go through witness after witness. I would have a better choice if Brindi were at home in the meantime. Even better, if the city would agree to work out a deal to resolve everything way before that. 

This is the dry and legal side of things. I've been through it over and over and discussed it with legal minds for months, and this is pretty much the result. I don't see any harm in sharing it. It's no big risk if it gets misunderstood or debated. Maybe somebody out there will find something I overlooked, who knows? All I know is, my new lawyer put it to the prosecution as a fair question (not as part of negotiations, since we really never got the chance): please cite a specific legal basis (or better yet give us a piece of paper) for holding my dog in the pound - independent of the charges. The answer was a day late, vague, and even inaccurate; it did not cite the charges as a reason, and it did not mention Section 176, and it did not cite any other section of a law. If it had been a concrete, solid answer, I would not bother to bring it up, there would be no point. 

The dry and legal side of this ordeal thus carries a huge amount of terrible frustration and pain; it doesn't seem to make any sense and yet there doesn't seem a clear avenue to cut through the red tape. As somebody said to me recently, it's right out of Kafka. The Castle, etc. 

Then there is the pain of the every day part, the real-life part, the knowing what is happening every day to my dog, and now to know that she may have developed cancer - only tiny glimpse can be had. Saying that I cannot sleep until 6 am and am never rested when I have to drag out of bed 2 to 3 hours later doesn't even begin to tell about it. There is also my awareness that the telling renders all of this reality into somebody else's pasttime; even a form of entertainment for some people and I do not need to add to that. The facts are impossible to get out into the media - what's left of the media these days. The point of writing anything is to get my dog back.