Note: contrary to popular local belief, an alleged muzzle order violation is not in and of itself grounds to seize a dog!!!!
Analysis of Testimony Prepared for Summary Conviction Appeal, May 29, 2014
Not submitted to court for appeal, due to restrictions on the length of submissions.
(To be honest, it seemed doubtful the "court" even read what I did submit... )
(To be honest, it seemed doubtful the "court" even read what I did submit... )
Schedule F: Testimony of Animal Control Officer Valerie Rodger
1. The indirect testimony of AC officer Valerie Rodger is illustrative of the problematic exercise of discretion on the part of the Respondent. It supports the Applicant’s position that the Respondent lacked sufficiently compelling reasons to provide reasonable grounds to seize Brindi. This in turn supports the that the judge erred in law by failing to reach this conclusion when reviewing the Appellant’s Motion to Dismiss the Charges or Stay Proceedings and allow the motion.
2. At the outset, the AC officer gives incorrect information about her years on the job. She tells the prosecutor she was hired three years before the trial. The next time it comes up, she claims – falsely – Brindi was the first dog she had ever seized “in five years” on the job (presumedly to emphasize just how amiss of the law the Appellant was by violating a muzzle order). In truth, as detailed below, she was hired in 2009. This means that she was actually only in her first year when she seized Brindi in 2010.
3. In response to a direct question about why she decided to seize Brindi, Rodger gives a series of contradictory answers.
4. The AC officer at first appears reluctant to admit knowledge of the details of any attacks beyond using blanket terms about attacks and offences. Further questioning reveals her to be very familiar with the details of prior incidents dating back several years, although they predate her employment.
5. Further questioning supports the Appellant's position that the grounds for seizing Brindi had less to do with public safety concerns and more to do with a desire to punish infractions above and beyond the law's provision of fines. Illustrative of this desire is the witness' erroneous reference to "two muzzle orders" is illustrative.
6. Overall, AC officer Valerie Rodger was unable to state a valid reason for seizing and destroying Brindi and changed the reason she gave several times over the course of her testimony.
7. Questions arise regarding Rodger's credibility: she says in direct testimony (Transcript p. 166, “I have been employed with HRM Animal Services for almost three years now.” This is consistent with her affidavit, which states she was hired in 2009.
However, during indirect testimony, Rodger says she has been on the job for five years:
Q. How often have you done it personally and how long have you worked in this capacity?
A. As an Animal Enforcement Officer, almost five years, and very fortunately I have never had a reason to have to seize a dog before.
The AC officer repeats the last statement a few times, though it is plainly untrue, as in 2010, the year of the incident in question, she would have been on the job only about one year. This discrepancy greatly lessens the impact of her claim that Brindi was the first dog she had ever seized. The issue of credibility becomes more worrisome when the AC officer goes on to give contradictory answers to questions about her decision to seize Brindi.
8. Rodger's statements regarding this decision confirm the presence of a significant lack of differentiation in exercising her discretion. The following are relevant passages from indirect testimony.
At the outset Rodger appears to confuse what the law requires with actions that involve the exercise of discretion permitted by law:
p. 197-198: on exercise of discretion vs. enforcing the law
Q. ...[so] you're saying your job is to enforce the law when there is a number of incidents and not to distinguish necessarily the severity of it.
A. I enforce the law. I'll enforce the law regardless of the incident.
Q. Regardless of the incident. So if there were ...
A. However many incidents. If there is only one attack, the law is enforced. If there is three attacks, the law is enforced. In terms of why I deemed the dog to be a danger to the public to needing to be seized is not on the basis of one attack, but on a continued history of aggression towards other dogs
A. ... and your unwillingness or inability to keep your dog under control.
p. 211: refers to more than one muzzle order
A. An attack causing injury in spite of multiple muzzle orders, yes, I felt that there was a danger to anybody walking their dog past your property as long as Brindi was in your custody.
p. 213: appears to contradict emphasis on the muzzle order as a factor in the decision to seize
A. And if I could just clarify she made a comment that the... it was mainly about the muzzle order, it wasn't. The reason Brindi was seized was about the attack.
214-215: shows poor understanding of criteria and her role as decision-maker:
A. Okay, you say there is no criteria for a muzzle order, but there is. In the case that a dog attacks an officer may take one of several actions including imposing a muzzle order.
217: explicitly rejects consideration of severity in favor of undifferentiated record:
A. Regardless of why Brindi is attacking, the motivations 18 behind it, the level of attacks, the bottom line is there has been 19 a repeated history of attacks by Brindi. And it is not safe for 20 somebody to walk their dog past your residence as long as Brindi is in your custody.
218: with regard to weighing “running at large” charges in the decision to seize
A. It doesn't matter how far off the property it is. 17
Q. Just as a matter of interest what would be the, you know, 18 how far in this history are you aware of ... 19
A. It's on the road. It's on the roadway, how far off your property each of these incidents occur doesn't really matter.
219: appears to disregard or not know of the presence and severity of any harm
A. I don't know the details of the injuries in all the previous 10 attacks.
Q. At the time that you decided to make a determination to 13 seize Brindi, did you review the case files in detail?
A. Yes, I did.
Q. So you came away with the impression of two, more than two 16 injuries maybe, or less than two, or can you pinpoint that at all?
A. You know what, I don't recall what the injuries were in the first three attacks. (note: there was only one prior injury, a shallow puncture similar to the one Lucy sustained, but on the dog’s chest instead of her back)
p. 225: contradictorily claims that the presence or severity of harm is taken into consideration
A. Yes, severity of the attack is one of the things that is 4 taken into consideration when using my discretion.
Q. How is it taken ... how do you take it into consideration?
A. The more severe attack warrants more serious intervention.
p. 225: appears to have knowledge of details after implying she was not familiar with them
MS. ROGIER: Okay. In your report you stated that there was 9 one puncture wound and two scratches, is that correct?
A. Two abrasions, probably.
Q. Two abrasions.
Q. Okay, so and you consider that the attacks had escalated? That they had gone up in severity, correct?
A. From the beginning, yes, I thought it was.
p. 225-226: confirms absence of severe harm and lack of immediate treatment
Q. Did the dog go to the emergency vet hospital that evening, like immediately after ...
A. No, it received vet care the next day.
Q. Okay. So presumably it wasn't life-threatening, the injury then?
A. No. 2
Q. Okay, did the dog require stitches. You said no.
A. I am sure it's on the vet report.
Q. Okay. I was trying to find a photograph for you to identify. I assume you have seen photographs of the injuries?
A. Of the injuries to the dog, yes.
p. 227: confirms extent of injury is two abrasions and a shallow puncture, in photo, no bigger than a man’s fingernail (not willing to agree that it is actually smaller)
Q. Okay, can you describe how large it is in comparison to 9 the person's hand and fingers? 10
A. It's about a size of the fingernail.
Q. I see ... well, do you think so, really?
A. I would say that, yes, that is about the size of a fingernail.
Q. There is a fingernail right here.
A. Yeah, yeah.
Q. And that, I would submit, is smaller.
A. The red spot is smaller but the entire injury where there is fur missing is larger (that makes no sense – she is referring to the shaved skin!)
236: third contradiction; also “fact” pre-empts investigation or ruling
A. Whether or not the injuries were life threatening, the fact was there was yet another attack on a dog going past your property.
9. And finally, the witness makes plain the lack of a consistent standard or policy regarding seizures and protection of public safety:
p. 239-240: establishes inconsistent or contrasting decisions regarding other cases
Q. To your knowledge, have there been worse injuries that did not result in seizures?
Q. Had there been fatalities that did not result in seizures to your knowledge?
A. Actually, yeah, no, I can actually definitely say yes, there have.
Q. There have been.
A. There has not been another case with such a history of attacks in spite of muzzle orders.
Q. Okay, well, we are going to leave that aside right now. I am asking about severity. In terms of fatalities, did these involve another dog?
Q. And did they ... or did they involve a cat or another kind of animal
A. I am sure that there are some that involved, yeah, other animals.
Q. And were those dogs typically muzzled then?
A. It depends on the specifics of each case.
10. It is submitted that taken as a whole, the witness’s statements are not reflective of a reasonable exercise of discretion. Most people would reasonably expect animal services to seize a dog that had killed another dog. And, if they do not, they would then view it as setting a standard, and thus reasonably expect animal services not to seize a dog unless it had killed or at least severely harmed a dog.
11. But the picture the AC officer presents, and mirrored in this case, does not meet such expectations. Nor does it represent the word of the law to the letter.
12. The cross-examination confirms the lack of severe injury based on the photographs of two minor abrasions and a small puncture wound smaller than a man’s fingernail. Other evidence showed these wounds were discovered belatedly, after the owners called the police, so they could not have been bleeding very much. This testimony confirms the officer’s awareness that the dog required no emergency care, merely simple first aid.
13. It becomes clear from the AC officer’s testimony that there was really no compelling reason to obtain a warrant to seize Brindi. In any case she is unable to plainly and simply give a reason, shifting back and forth instead between the muzzle order, the owner’s past sins, and the attack, while admitting that she gave no details of the attacks to the justice of the peace in her ITO for the warrant.
14. It is also becomes clear that the AC officer was very likely aware of the lack of a compelling reason to seize and destroy, and cognizant of the drastic impact seizure and detention would have on Brindi, but seized her anyway. Her somewhat obstructive answers and defensive posture suggest that the matter is not about public safety but punishment, perhaps more.
15. By the conclusion of her testimony it is established that in the ITO she did not provide the justice of the peace many pertinent details regarding the attacks, especially regarding severity. Rodger did not include the details of injuries in her ITO. In contrast, she paraphrased the dispatch calls at length, with a clear bias. She exaggerates and builds on a false impression created by reference to number of attacks. This appears to lend credence to the suggestion that the warrant is necessary to prevent the Appellant from leaving the jurisdiction. The ITO presupposes not only that there are grounds for destroying Brindi, but also that preventing a person from leaving the jurisdiction is sufficient grounds for seizure. While the second clearly exceeds the scope of the by-law, the outcome of the proceedings has shown that the first is patently untrue.
16. Rodger also appears to lie on the stand because she initially says she did review the details, yet cannot recall them. But she quickly confirms details as put to her, such as injuries, or lack thereof, and then again reverts to saying she outlined the history for the JP, when it is pointed out that she excluded relevant information needed by the JP to make an informed decision on the risk of safety and the decision to seize.
17. On p. 230, she avoids a yes/no question about pressing need for treatment, which refutes her answer that the injuries required treatment. Taking a dog to the vet does not prove that it required veterinary care. On p. 232, the discussion about registering a dog as dangerous reflects the circular muzzle order/dangerous connection.
18. Yet Rodger admits without hesitation that the animal services department does not necessarily seize, muzzle order destroy even in cases of fatality to animals. This implies a lack of a consistent rational decision-making and/or policy guidelines. The evidence also demonstrates the inconsistency of enforcement, which weakens the Respondent’s case.
19. Without the presence of the muzzle order, it seems the 2010 incident more than likely would have been handled very differently. It is fair to say, based on the record, that the muzzle was arbitrarily imposed, or the first seizure, which relied on the muzzle order, did not follow an injury incident, and failed to provide grounds for an order to destroy.
20. Taken as a whole, this evidence credibly establishes the lack of reasonable cause to seize and detain Brindi, or to seek an order to destroy. The dispatch calls admittedly may not reflect very well on the Appellant, but they are an inadequate substitute for proof of severe harm or deliberate non-compliance or recklessness. This evidence thus arguably constitutes sufficient grounds to quash the warrant or at least to release Brindi by court order pending the outcome of the trial. The motion to dismiss the charges also relied in large part on these grounds.
21. Therefore, the judge errs in law by failing to come to this conclusion and apply as grounds to release Brindi and grant the motion to dismiss the charges. Part of the problem may be that the judge relied on the AC officer’s answer on p. 252 regarding incidents prior to the muzzle order, which says that a violation charge was laid, which is not true. However, if it were true, a charge is not necessarily sufficient to tip the balance against the rest of the evidence or lack thereof.
22. It seems likely that Rodger was simply following orders from a supervisor, Lori Scolaro. Rodger was a recent hire. HRM records show another officer, Leah Parsons, was originally assigned the case and Scolaro reassigned it to Rodger. (Scolaro made a similar reassignment in 2008, substituting Tim Hamm for Brad Kelly after Kelly was already dispatched.)
23. Thus it appears more than likely that in carrying out her supervisor’s instructions to the decision to seize and detain Brindi, Rodger failed to properly exercise her statutory discretion. The action does not reflect a reasonable balance of interests or fact, e.g., her knowledge of the total lack of severe harm in previous incidents, and in the incident in question, against the certain negative effects of further impoundment to the dog’s health. This failure to properly exercise discretion is especially eggregious as the law does not mandate the seizure and destruction of dangerous dogs.
24. The definitions of terms such as dangerous and attack, and the absence of a definition of bite, in s.2 of A-300 means the law cannot provide adequate guidance to decision-makers. The effect of these definitions is to render the law overbroad. It fails to distinguish severity of bites, and makes no distinction between canine aggression toward humans and animals, or between perceived displays of aggression and the perceived threat of aggression. Therefore Ms. Rodger lacked proper guidance in exercising her discretion to decide to seize Brindi.
The gap between canine science and the law
25. One of the key areas where the by-law definition diverges considerably from veterinary science is the lack of differentiation in the target of aggression. A reliable and comprehensive source of information on veterinary medicine and animal behavior is the Merck Veterinary Manual [“Manual”].
The Manual explains that dominance aggression is an "abnormal, inappropriate, out-of- context aggression (threat, challenge, or attack) consistently exhibited by dogs toward people under any circumstances involving passive or active control of the dog’s behavior or the dog’s access to the behavior."97 Notably, the Manual states that dominance aggression is difficult to diagnose due to "human misunderstanding of canine social systems, canine signaling, and canine anxieties associated with endogeneous uncertainty about contextually appropriate responses.
26. Importantly, in contrast to the views of HRM by-law enforcement, the Manual emphasizes that some aggressive dog behaviors are normal, and even desirable by humans.
27. Another key point of divergence is the lack of recognition of “good bite inhibition” that is displayed over time. While the Manual stresses that unwanted behavior must be “consistently” exhibited in order to be deemed aggression, behavior expert Dr. Ian Dunbar stresses that a one-time display of aggression that involves life-threatening or fatal injury to a human or animal is a greater concern than an animal that displays aggression multiple times but shows restraint, i.e., “bite inhibition.”
28. It is submitted that a rule of thumb based on the number of “attacks” or “at large” incidents irrespective of the degree of harm or other factors is frivolous if not abusive as grounds for seizing and detaining companion dogs that are living personal property. The rigid “one-bite rule” where dogs are deemed dangerous and often destroyed on the basis of a single incident, typically undifferentiated as to severity (other than perhaps the target, which is not done here), is just as problematic as applying the “first-time offender” rationale, which is borrowed from criminal law, to be lenient even when there is fatal or near-fatal injury.
29. The “first-time offender” rationale seems to be a common rule of thumb (confirmed in Rodger’s testimony) among HRM animal services staff and prosecutors. But Dunbar shows that such “first-time” dogs that run at large, attack, inflict severe harm, and even kill (e.g., kittens, chickens in a neighbor’s yard, etc.) actually pose a greater threat, so that the practice of fining rather than muzzling or seizing such dogs exposes the public to unacceptably high risk. At the same time, seizing and punishing with death dogs that run at large more than once, or scuffle with other dogs but consistently refrain from inflicting severe injury (requiring stitches, drainage tubes, etc.), based on the number of reported incidents alone, is unfair and inhumane. In both instances, the basis of the decision is erroneous, and the odds are that the duty to protect public safety is not met to any acceptable level.
30. But there is only hope of improvement if Animal Services is willing to expand and update its understanding of dog behavior and take a hard look at its system.
 See email exchange between Bernie Jo Villeaux and AC Officer Tim Hamm, documented also in Applicant’s Brief from Dec. 31, 2009:
“The decision-maker cannot rely on the prior determination of the dog as being subject to a Muzzle Order because:
(a) on issuing the Muzzle Order on May 2, 2008, an Animal Control Officer “...informed her I was not deeming her dog as “dangerous” as this would include additional safeguards. Ms. Rogier was happy to hear this...” [Original Record, Tab 7, Record Page 3, under “Comments”]
(b) the Muzzle Order was not issued for any reason related to a deeming of the dog to be dangerous. The complainant reported by email to Animal Control Officer on May 1, 2008, that “...I don’t want this woman fined!!!” because she had learned the prospect of a fine could jeopardize the payment of a veterinary account by the Applicant. [Original Record, Tab 7, Record Page 13-14]
(c) The Muzzle Order was issued on consultation with and as a result of a form of negotiation with a complaining third party, without notice to the Applicant and without affording the Applicant the opportunity to respond, but for which, the disposition of the Animal Control Officer was to charge her with an offence and seek a fine: on May 2, 2005 Animal Control Officer emails the Complainant, “...Please let me know how you feel about this option” [Original Record, Tab 7, Record Page 9]. The Order in the result was a fettering of any discretion of the Officer and the decision was arbitrary and discriminatory.” (Mitchell, Applicant’s Brief 2008 p. 22, in Appendix A)