Saturday, November 28, 2015

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HRM Animal By-law A-700 shocker! New money-maker for Halifax preserves A-300's biggest flaws

[Update: Overnight, a petition appeared: Mayor Savage Fix the Animal Control By-law A-700. Please sign and share!]

Reading A-700 gives me the distinct impression that HRM Council feels I got off lightly. And yet even though HRM has struck out three times in its bid to kill her, Brindi is still locked up after seven years. There is nothing light about that.

Timing is everything... and everything about the timing of the release of the "new" By-Law A-700 for the Halifax Regional Municipality (I'll never comprehend how a municipality can be regional) is simply nuts. And that's just the beginning!

I have not blogged for months. There are a lot of important reasons; they all add up to what I call flatlining. But I can't talk about that now. I have to talk about this. I am trying very hard to meet a court deadline, resuming with reluctance this very difficult task, after trying very hard to find representation - coming close but no cigar. Having to turn away offers of work as this deadline approaches doesn't make it any easier. Neither does having my head explode more than once in the past four weeks by things that just never happen but somehow did to me. Things best left unsaid, for now.

Now I am just speechless - A-700???  I am trying to overcome all manner of obstacles - financial, physical, emotional, spiritual, you name it, to appeal charges under A-300 and the horrible sentence under the little-known "additional penalty" clause tucked into the voluminous HRM Charter, and suddenly this A-700 drops from the sky. It should be called "A-007 Skyfall"! The HRM "Regional" Council voted on it a month ago, and whisked it into effect so fast this weekend, I never even heard it was thinking of it. Even a friend who reads the paper every day missed it. Maybe they wanted to avoid the long years of Council debates before A-300 went into effect?

Still, I would have thought Council would want to make sure it heard from the public first, especially since it had to change A-300 right away when folks went ballistic over the cat licenses. Apparently everybody missed the fact that A-300 contained sections that violate Charter rights, one of which I had to go to court about when it seized Brindi so wrongly and, it turned out, unlawfully.

Council sort of lost the trust of a lot of people after that too. It sure lost mine. Words cannot express the magnitude of the consequences of the way Animal Services treated me and my dog since 2008 - no end of drastic financial and material loss it's caused me, with years of lost income, the extreme and sustained emotional distress of separation and worry about Brindi, not to mention the effects on my professional and personal reputation - with social shunning as well as outright attack from stalkers, cyberstalkers, and cyberbullying from total strangers.

However, reading A-700 gives me the distinct impression that HRM Council feels I got off lightly.

This is what makes it so difficult to even read the thing. From the start, I never imagined it would be necessary to go to court, once the city completed its investigation, which the decision found it had not done: it failed to interview me or an eyewitness at the scene. And then when a judge quashed the order to destroy as well as part of the law that authorized it, I was crushed even more to when HRM immediately refused to return Brindi - and astonished when Kishan Persaud's fax only gave the reason that HRM thought she was dangerous. First, the assessment after five months of isolation had shown she isn't, by any standard; second, on issuing a muzzle order the AC officer stated explicitly he did not deem Brindi dangerous; and finally, the law doesn't appear to authorize HRM to lock up all dogs on the strength of the definition dangerous alone. They hadn't even charged me with any offences and apparently didn't plan to until they lost in court, for a second shot at a lawful order to destroy.

Plus, for years afterwards, HRM neglected to delete the offending clause from the law published online, raising concerns with regard to its assurances that the law would be amended. Up to two days ago, in fact, A-300 still contained the one section that Justice Beveridge quashed in 2009 along with HRM's own Order to Destroy. Six years on, every version I found online, including the link on the Animal Services webpage, still contained the notorious section 8(2)(d), which allowed animal control officers to seize and destroy a dog they had "reason to believe" was dangerous.
It's uncanny that no more than 48 hours before A-700 appeared, I wondered to myself whether HRM was in contempt for of court for failing to remove section 8(2)(d) from A-300. !!!

I also would have expected Council to consult some trainers and vets first, so the law could be updated to be on a par with current canine science, not to mention study the better dog by-laws around that are.

OK. So now, I only have time to set out my initial reactions to A-700.

Well... it is MUCH longer than A-300, a lot of focus on money, apparently.
Way too much!

...Does NOT improve the definition of "dangerous" - it STILL makes no distinction between attacks on human and attacks on animals, for instance; so it appears to continue to fail to provide proper guidance for judges asked to put down a dog under s. 195. 

....Does not resolve flaws in key terms: eliminates “appears to threaten" from the definition of "attack", a word crucial to the definition of "dangerous" - all dogs that attack are "dangerous",
2.     (c)  “attack” means to injure, bite, or threaten;
but it still contains "threaten", which is vague as heck and just plain absurd; a significant percentage of people think all dogs are threatening, especially if they bark. Is a barking dog dangerous? If so, I could report a lot of attacks and I'm sure others could too. This is unfair on its face and more than likely to be applied unfairly. Smaller dogs arguably nip kids at least as often, and bark probably more often and longer than medium and large dogs, so it's a safe bet their owners need not worry. Not to mention, five minutes??

And by the way: under s. 195 of the HRM Charter, nothing restricts HRM from asking a judge to order a dog that barks a lot be destroyed. Or "otherwise dealt with". Even a dog that "runs at large" or whose owner failed to license it can be put down using s. 195.
If you think this will never happen, think again: back in 2002, in a case of Lawrencetown dog that got loose a few times (the paper cites 13 reports but that doesn't mean 13 times getting loose - also, Lawrencetown? Houses are very far apart), rather than practical solutions, like ordering the owner, a single mom, to install a fence or maybe a self-closing screen door, so her kids didn't accidentally let it out, Judge Flora Buchan decided to give the dog to the SPCA to adopt it out. Presumably: she didn't require the SPCA to report back to her, and, being labeled an "escape artist" or the like, its chances were pretty low. Back then, the SPCA killed a LOT of healthy dogs. Great way to both needlessly cause an animal's death and traumatize the children who loved it
...."injure" still makes no distinction between a minor scratch or a ripped-open belly; 
...."bite" fails to differentiate severity - bites involving tearing or punctures are the same as those that leave no marks at all. Once again, no real guidance for judges in life-or-death decisions; way too much leeway for animal control officers. !!!

...Still lacks provision for appealing anything - the imposition of a muzzle order, the designation of dangerous (can't wait till that comes up), the order to microchip, whatever - without having to hire a lawyer. Oops, preserves the previous Charter violations for procedural fairness and also appears to give animal control officers more powers than a judge (whose decisions can be appealed).

...Does NOT consolidate or synchronize with the HRM charter sections labeled "Dog By-laws", s.194-197, though it mentions there are dog sections in the charter generally.

...Reduces the amount of time a dog must bark before a person can file a complaint from 20 minutes to five minutes - and the offence of owning a dog that disturbs the peace or whatever, only requires that one person living nearby give "evidence" (nothing more than their say-so)

...Jacks up the cost of fines and fees and provides for "lifetime" licenses - clearly a vast amount of energy went into this instead of fixing other parts that make the law unenforceable, including the new provisions.

...Jacks up the fines, but I don't care how right now... oh wait, no, that Schedule 2 is OFF THE CHARTS! Especially since we've found that the fines vary considerably with no rhyme or reason and it appears A-700 fails to remedy this inconsistency.

....Sets a maximum fine of $5000????? But lacks any hint of what guides HRM and in turn a judge to set the actual extra amount. Arbitrariness already built into the law is preserved.

This section is just twisting my melon. For a law that is unenforceable due to the overreaching, overbroad definition of "dangerous", it comes down pretty damn hard on dangerous dogs.
[update: found an HRM brochure that highlights the changes]

Oh my God, reading down the list, I can think of so many inconsistencies and conflicts from chart to law and orders - the various "failing to" sections here don't quite square with the current muzzle order form wording (unless that gets changed?), possibly not even with the offences and requirements in the body of the law. The parts just do not hang together as a coherent whole. How can it be applied, if any dog that attacks is dangerous, and dangerous dogs are required to be restrained inside buildings? Does a dog have to be leashed and muzzled in its owner's home? 

This is really a big fat mess. I'm afraid judges are going to use this fee schedule instead of the actual statute for guidance on how to make orders for dogs, since it seems to imply provisions not stated in the law elsewhere. The irony - and by irony I mean tragedy - is that I have no doubt that items under 13 were likely written with my poor Brindi in mind, especially the mention of a motor vehicle. Huh.

The very sad thing for me, and something that ought to at least annoy taxpayers and worry other dog owners, is that HRM spent seven years and easily a hundred thousand dollars (several lawyers anyhow) trying to kill Brindi. But while it's done a great job of smearing the hell out of me, and it's put unproven statements ahead of concrete evidence and court testimony trying to paint the worst picture possible, it's been unable to convince a judge to issue order to destroy her. They did their best, the lawyers. They keep bringing up stuff that happened as far back as 2007 and embellish it as much as possible. Helps them get judges to jump on the beat-up-Francesca bandwagon, but hardly substitutes for proof of serious harm or a pattern of escalation that could reasonably justify an order to destroy a dog - let alone override a positive consensus established by five professional behaviour assessments. Not even a single trainer or vet sides with HRM. They've had three times at bat and struck out - the last time, 2012, the judge balked on the Order. But, after concluding, in unusually moralistic language for a dog case, that Brindi was "not beyond redemption", she refused to return her to me, as I was "remorseful but not repentant" (whatever that means), or even order her outright to be adopted. Instead, she turned Brindi over to HRM to decide - even though she knew very well HRM had already decided on death in 2008.

This ought to make some people uncomfortable, especially people who, like me, are newcomers to HRM, are on their own, like single women, and thus more likely to be the subject of a call to HRM. Sorry not sorry: I did track all dog by-law prosecutions from 2010-2012 and I have yet to see a man's dog (or a man whose wife is the owner, but appears in court for her) be seized and ordered killed, or even muzzled in many cases. Or anybody with a Dr. in front of their name, even when their dogs inflict life-threatening injuries on other dogs or savagely bite a person. Not naming names, just sayin'!

And HRM doesn't apply its own rules consistently. It never registered her as dangerous, not even when a judge recommended it in 2010 - although I don't know why she didn't make it part of her ruling, under "otherwise dealt with", s. 177 (the current s. 195). She seemed to think the law only allowed animal control officers to do it - which makes no sense at all, especially since again, the by-law makes no provision for appeal.

Can't help saying as well - shouldn't HRM be fining itself a whole lot of money, both under A-300 in the past, and under A-700 going forward? I mean, I have proof they did not muzzle Brindi at the SPCA, even around a baby? The muzzle order applies to anybody with care and control of the dog in question. I am pretty darn sure they haven't been muzzling Brindi at Wyndenfog for the past five years. All the court conditions ought to apply - and they include specialized training - not just basic obedience commands; she's past that anyhow.

My poor baby. God in heaven, my poor baby!

And anybody who thinks the 2012 court ruling "giving" Brindi to the city - which I am appealing once my brain gels again after this - ended in a judge ordering HRM to adopt her is woefully misinformed. I suggest such folks who don't believe me dig out the provincial court decision by Judge Flora Buchan and read it very carefully. So really, all the fuss above is very misplaced.

Moving on... Holy Mother of God protect us...

...Does not fix the language of "running at large". I don't even want to give away that one; let's see which of you out there gets it.

...Also... for some reason still talks about a "shelter" and a "shelter keeper" instead of "pound" and "pound keeper". I am not comfortable with the idea that a shelter is also a pound and vice-versa. 
Let's be real: if the owner of this facility is empowered by law - now A-700 - to kill stray dogs he or she deems dangerous, and the owner also carries out court orders to kill a healthy dog deemed - well, deemed to be killed by a judge (on what basis, who knows? "Dangerous" is an unusable standard, all things being equal, since under the same law, dogs that attack are one of six ways to be dangerous, thus, if consistently applied, every conviction of "owning a dog that attacks" must lead to death of the dog*), then Homeward Bound CityPound ain't exactly a shelter, let alone a "no-kill shelter".
Wow. Just wow.

Finally, A-700 has done nothing to remediate the number one problem in dog by-law enforcement in my view:  the indefinite impoundment of dogs. Just some dogs, and there's no rhyme or reason how they decide which. Still. Frankly, I do not see how HRM is allowed to impound a dog BEFORE and charges are laid and a proceeding is scheduled, let alone after arraignment. I raised this years ago when they held Brindi for two-years at the SPCA's 30-day facility (and she became chronically ill). 

For all my efforts, in 2010, HRM, failing to see the forest for the trees, didn't understand that it's just wrong to impound a dog for over 30 days, regardless of where. Most kennels refuse to board dogs any longer than that, and for good reason! But instead of changing the law (and warrant) by limiting impoundment to 30 days, and adding corresponding provisions for hearings before the court or some tribune, HRM just took the pound - oops, shelter - contract away from the SPCA and awarded it to Hope Swinimer, because she showed up with a subcontract at Wyndenfog Kennel. 

Not all dogs alleged to have attacked are seized and held until a judge finds their owners guilty of an offence and then agree to issue an Order to Destroy or have the dog "otherwise dealt with". Trials here take months and months and even years to finish! As a result, a lot of dogs have been held for long periods. And I can't say that HRM only seizes the most aggressive ones either; there are abundant cases to the contrary. But Council seems more interested in the complexities of lifetime licensing fees, for some reason. 

The funny thing about the following clause that was under 16 in A-300,
25. (1) Subject to subsections (2) and (3) of this section, where there is a proceeding before a Court involving an impounded animal, the Shelter Keeper shall continue to hold and care for the animal, and the animal shall not be sold, adopted out, destroyed or otherwise disposed of until such time as a Court orders otherwise or any Court proceeding related to the animal is concluded. 
is that HRM, which has shied away from it in the past (rightly), now appears to think this wording gives the city the authority to detain dogs indefinitely, pending the outcome of a trial against their owners. But it doesn't quite. One reason is that there are higher laws governing the detention of seized property in order to protect rights - like the Canada Criminal Code, which overrides municipal by-laws, as it should.

So, like A-300, s. 25 of A-700 seems to imply UNLIMITED impoundment is possible - or impoundment till death, since the length of a court proceeding can be anything from two months to two or three years. On the other hand, nothing in s. 25 prevents a judge from ordering a dog's release anytime after seizure, does it?
 until such time as a Court orders otherwise or any Court proceeding related to the animal is concluded.
Seems to me then that a person ought to be able to ask a judge to let their dog go home, but try telling that to a supreme court judge without making them skittish and mutter about dangerous dog hearings - which don't exist in HRM; I only wish they did. So way to go, HRM Council, leaving intact a big fat knotty problem that has been the ruin of my existence and eaten up most of my dog's lifespan. How can they not understand this?

And am I the only one to notice that as in A-300 s. 16, nothing in s. 25 or the rest of A-700 appears to allow HRM to seize and hold a dog BEFORE charges are laid and a proceeding is scheduled on arraignment. Which reminds me, I notice some people seem to get tickets instead of a court summons – no mention of tickets in the by-law though, let alone what determines which one you get.

Furthermore, at the same time, nothing in s. 25 prohibits a Court from ordering an impounded dog to be returned to its owner or fostered pending the outcome of the proceeding. That “nothing” includes a prosecutory declaration of intention to seek order to destroy. But judges are really confused when you ask them to do this - and who can blame them? - so they tend to balk. The law is a convoluted mess, and now it's even worse. 

Other thoughts. 

The warrants to seize are a problem as well, for several reasons. I assume HRM will have to update them to reflect the new law. But I doubt Council will fix the rest of the warrants - and Animal Services and municipal prosecutors alike seem to like things just the way they are: 

How are they a problem? Well, unlike warrants in as wild a place as Texas, HRM warrants

- make NO mention an alleged incident or offence occurred that triggered the seizure and will be the subject of a proceeding that will result in a determination re the dog - or when that proceeding must happen; and, they

- place NO limit on the length of time the impounded dog can be held, or even authorize the pound to hold the dog for any length of time.. Just not there, sorry! So the authority the warrant grants animal control literally ends once the dog is seized and turned over to the pound keeper. You might argue that authority to hold the dog after that is implicitly bestowed, but that's really not good enough when it comes to seizing private property that happens to be a living being typically very highly valued by the owner.

AND, the principal authority the warrant does grant is completely out of touch with the rest of the by-laws: it authorizes an animal control officer to seize a dog if he or she has “reason to believe a person is harbouring a dangerous dog”. However, harbouring a dangerous dog is in and of itself NOT an offence under A-300 and it isn't under A-700 either. So why do JP's issue them in the first place? Good question!!! 

Also, if the owner has been convicted of owning a dog that attacks in the past, the dog is by definition dangerous. So how can a JP issue the same warrant when the animal control officer already knows the dog to be dangerous under the law? It's just nonsense!  

This makes it all the more - well, "egregious" in legalese, or just wrong in plain talk, that, as I mentioned, the warrant wording only says the dog can be seized and delivered to the pound/shelter keeper. It does not go further to authorize the pound keeper to keep the dog after that, let alone for how long. I can't remember if the current warrants even mention s. 16 (or the new s. 25); I don't think so, only the HRM Charter section 194.

There just seems to be rather large holes in the legislation on pretty major points. 
In my experience, the lawyers who work for HRM don't seem to disagree, either: they've certainly show this by going to extremes to prevent a judge from taking a look - everything from an ex parte motion to full-scale unlawful eviction followed by a totally unlawful "conditional" demolition order offending HRM's own laws as well as the Charter... So it seems to me the HRM lawyers are fine leaving things the way they are. 

My good heavens. I am sorry but this is not helping my PTSD at all. How am I going to go back to the appeal knowing that matters have now gotten worse before the court had a chance to make them at least little bit better?? 

People of the Eastern Shore...  looks like maybe it's time to secede from HRM.

*And yes, it's true: I have been waiting for years for people to finally grasp that A-300 could not be enforced as written. How depressing is it that they passed a whole new law that enshrined the same damn conundrums?? The upshot being that just like A-300, there is absolutely no reason to believe A-700 can do the job it's meant to do. I am at a loss to explain how members of Council don't see this.

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