Wednesday, December 23, 2015

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Thoughts on Dangerous Dogs & Seizure Warrants in Halifax

I believe in good animal control and good dog by-laws because public safety is important. I don't happen to believe in putting a healthy dog down.

Dogs just don't rate high enough as a threats to human life to merit killing them if they step out of line. Dogs don't even show up on the top 50 causes of accidental death and injury. So to me, killing a healthy dog because it inflicts harm, or is said to be likely to inflict harm, is unacceptably disproportionate. It's also immoral, when you consider that Canada no longer kill humans who kill other humans.

When balanced against the enormous value of the human-canine bond that predates modern society, killing healthy dogs seems very immoral. People have kept dogs for some 30,000 years - longer than there were cities, laws, and the family as we know it - and the human-canine bond is likely to endure longer than those institutions. True, not everybody likes dogs, but dogs serve everybody - in security, in special needs cases, at hospitals, and, lord knows, in research! So it's only right that our laws reflect how important dogs are to us.

As a result, any city insisting it has a right to destroy lawfully owned dogs must insure that those laws are fair and and effective. Above all, they must avoid infringing rights and harming dogs needlessly. And the most important part of dog by-laws is the definition of dangerous at their core. Without a reasonable, science-based definition of "dangerous", no dog laws can be fair or effective. When we look at how Halifax deals with "dangerous", however, things don't look so good.

Under Halifax local law,  deeming a dog dangerous doesn't require Halifax to seize and kill the dog in question, regardless of circumstance. The law doesn't stipulate when Halifax should kill a dog, such as following a serious incident. It leaves all of this up to the animal control officer and the prosecutor. 

That wouldn't be so bad, except the local definition of dangerous begins with "a dog that attacks". Applying that, any dog that attacks even once is dangerous, regardless of degree and nature of the harm involved. Even worse, "attack" is defined as "bite or threaten". Nothing in the law distinguishes a bite that's a little nip from one that leads to 30-stitches, first of all. Secondly, "threaten" is in the mind of the human beholder, and there's always somebody who feels threatened by a dog.

Consequently, virtually every dog in town could be deemed dangerous.
Not very fair or effective!

In addition, Halifax law does not prohibit a person from owning or "harbouring" a dangerous dog.  I would argue that this key fact renders the seizure warrants meaningless
. The law elsewhere provides no further guidance, and no guidance means no constraints on seizures and nothing for judges to go on. As the warrants are now written, it seems to me a fair and just court would have no choice but to nullify them across the board and order Halifax to start again - which would be good for everybody!

In Halifax, the significance of deeming a dog dangerous is unclear. Like its predecessor A-300, A-700, the new dog by-law, provides six definitions or circumstances under which a dog is dangerous. But it is silent on the criteria animal control officers may use to deem a dog dangerous (the court is left out entirely).

The method of deeming a dog dangerous is a bit murky as well. Previously in A-300, and now in A-700, any dog that attacks is dangerous, so anybody fined for owning a dog that attacks should be informed their dog is deemed dangerous. Also, any dog under a muzzle order is dangerous. And there is no automatic means of recording the designation, say, in the dog license, although that is the only official mode to record it.

The same is true of the consequences for a dog deemed dangerous. The law provides three measures that may be taken by AC - muzzling, microchipping, or registering the dog as dangerous. Not seizing and not killing. The city is fully entitled under provincial law to make laws that provide for those things, but it has never done it - not since 2007, anyhow.

Halifax law does allow a judge to order a dog put down (under s. 195 of the HRM Charter, not A-700). But the law doesn't set any criteria for the judge. And, while judges don't have to be asked by the prosecution to make an order, in practice, that's the only time they do. Also, the judge may only order a dog put down if they first find its owner guilty of something (it doesn't specify).  

The upshot is, judges are unlikely to take the initiative of invoking s. 195 on their own, and, if the prosecution asks the judge to invoke it, but fails to obtain a guilty verdict, everyone's hands are tied. Nobody can order the dog destroyed and the dog must be returned to the owner, even if it killed another dog or viciously bit a person or child. 

(Alarmingly, there are sections of the HRM Charter (somewhere between s. 194 and s. 197) under which both AC officers and anybody can kill a stray dog without bothering to report it to anybody.)

The new dog law passed last October, By-Law A-700, does no better than the old A-300 to avoid such loops and gaps. So nagging questions remain, like what does it mean if an AC officer issues a muzzle order for a dog while making a point to say he is not deeming the dog dangerous - as is true of Brindi?

When you go through all of these things, it becomes really hard to believe Halifax takes dangerous dog issues seriously, to be frank. Or alternately, that the city takes the concept of law seriously.

Dog Seizure Warrants
At first glance, the warrants used here to seize dogs appear to relate to provisions against owning dangerous dogs that don't exist here. The wording says the animal is being seized because an AC officer "has reason to believe" the person "is harbouring a dangerous animal", and that after seizure the officer will turn over the animal to the "shelterkeeper". The warrants do not cite a law prohibiting only the provincial law that authorizes HRM with the power to make laws under which AC officers can obtain warrants to seize dogs (s. 193). 

The warrants as written have no connection whatsoever to laying charges against the dog owner.  As written, the Halifax dog seizure warrants have no connection to an alleged incident that presumably triggered the warrant application. They do not say that a proceeding related to the dog or to an incident with the dog will take place, or when.

Beyond taking a dog "off the streets" for safety reasons - which is reasonable yet still happens here without a hearing, despite the Supreme Court ruling in 2009 - one could argue the seizure has no valid lawful purpose, as it lacks a connection to specific action to be undertaken by the authorities afterwards. There is nothing in subsequent paperwork filed by the animal control officers to the court that directly connects the seized dog to a proceeding either.

On top of that, the Halifax warrants place no limit on the length of time the dog may be held lawfully. This in sharp contrast to the usual wording in places from say, LA to Texas (I downloaded one from there; Texas uses state laws to regulate dogs, so things are consistent from city to city, and the warrants limit impoundment to 12 days.) No other part of the local laws makes a connection in the law to a proceeding (aka a trial), or puts a limit on the length of custody of seized dogs. It's just amazing.

This is why it's impossible to deny that Halifax has no authority to keep dogs in custody once they are seized. The number one legal problem with keeping dogs in custody without a proper local law authorizing it is that federal and provincial law require that seized property be returned immediately unless it is needed as evidence in a proceeding.

Add it all up - the disjuncture between the warrant and its presumed purpose, the vagaries of local law and the limits of federal/provincial law, etc. - and you have to conclude that the HRM warrants are invalid on their face, which, you'd have to agree, makes using them to seize dogs is kind of unlawful.

What I think invalidates the current warrants altogether is that the "reason to believe" premise becomes redundant when a dog is already under a muzzle order or registered as dangerous. In that case, the notion of "belief" gives way to fact.

So since Brindi was under a muzzle order, thus technically, if not formally, already "dangerous" under the law, how was the warrant they used to seize her in 2010 at all valid?
I don't think it was. But I found out to my dismay that when asked to take a good look, the judges, in their effort to put a good face on things, no doubt, are loathe to do it.

As a result, the whole thing is a mess, and promises to stay that way. Unfortunately it seems HRM Council continues to trust municipal legal staff to insure that the laws and policies Council makes are sound - sound in law and in procedure. Why my case, and many others, haven't served to shake that faith is beyond me. But if members of Council can't see just how messed up things are, I have to wonder if the public will ever will.


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