Saturday, December 5, 2015

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How to Bury a Dog & Her Human Alive, Layer by Layer

Why do people insist on believing that the 2012 ruling I am appealing ordered HRM to adopt Brindi, when HRM itself doesn't see it that way?

How can I possibly ever win an appeal in a case riddled with twisted truths, gross exaggerations, key omissions, sheer lies?  This is not a game I know how to play.

Background: parsing court rulings

Judge Buchan's sentence, June 26 2012, p. 9 *
“But for her complacency for ensuring that Brindi could not act out her territorial aggression on other innocent dogs after having been given more than adequate opportunity to do so, I am satisfied that Brindi cannot safely be returned to Ms. Rogier.”
Okay so I cannot help but take it apart. Humour me please. 

her complacency: not a correct or fair conclusion to draw from strict liability offences where intent is not considered. And both she and HRM acknowledged the window mistake was unintentional I testified that I had otherwise always muzzled/leashed her in the car even though I knew it put her at risk; that night the hot weather dictated not leaving them on in a parking lot; I testified that I believed I had secured the car. None of that is consistent with complacency.

And the term is otherwise completely contradicted by a wealth of evidence, including the uncontested fact that I not only met but exceeded the court conditions by continuing training voluntarily, confirmed by the trainer’s testimony and her special statement for sentencing that set out the training details and her assessment of Brindi; a letter of support for Brindi and her confidence in me from our vet, and two sworn affidavits attesting to my rigorous attention to the conditions and to training. Plus informal letters from local mothers of small children. 

Buchan, setting the scene for the appeal judge, is simply elaborating on HRM’s deliberate exaggeration of the muzzle conditions. The judge acknowledges I made an honest mistake in securing my car against Brindi escaping - something she never even tried before that night, really - but instead of recognizing this as a legitimate defence of due diligence", claims I failed to take "reasonable precautions" like muzzling and leashing in the car, even though these measures - which I testified I had always done up to that particular moment, and which is true - would not have prevented her escape, or in turn the three offences that followed, and thus are not reasonable precautions at all in terms of due diligence and the actual offences before her.  

Not to mention that previously that summer Brindi was attacked by dogs five times. Two involved a pair of dogs, all were off-leash. Or that earlier on the day they seized her, I had to take evasive action when six off-leash dogs came running and surrounded my car with Brindi muzzled inside, ignoring calls from the two women with them.

When you realize how and why the muzzle order originated, how it came after two scuffles that at worst deserved a fine; how a muzzle had zero basis in Brindi's conduct or misconduct, the whole thing explodes your guts and your brain at once. Why does nobody care that HRM just used it as a tactic, smokescreen to seize and kill Brindi?

act out her territorial aggression, cannot safely be returned: Fails to register the trainer’s uncontested expert opinion rating Brindi's level of aggression at 1 on a scale of 1 to 10, the lowest possible, and citing her "good bite restraint", which she showed on every occasion when she had the chance to inflict severe injury but did not. Difficult concept for a judge to grasp perhaps, yet nevertheless solid canine science. Between this and the record of infrequent harmless or nearly harmless incidents, in which Brindi did not even retaliate against the people who kicked her, "safely" is a bit of a stretch.

other innocent dogs: Oh come on. "other" as in Brindi is another innocent dog? "Innocent" as in Brindi is some kind of a sinner? Nonsense!! She is simply a dog. Dogs use their mouths and bodies to communicate with other dogs. Brindi did not want to not to maim or kill. (By now I do, though. Boy do I.) 
We don't even begin know what kinds of messages transpire between dogs. Reading morality into the thing is just too much. If you want to talk forgiveness and unconditional love, that's another story!

more than adequate opportunity to do so: Ten weeks?! It can take years to re-program a dog's behavior! Pretty high standard. The short time between Brindi’s release – July 9 –and the incident, Sept. 14, directly contradicts the judge's opinion; so does our trainer’s testimony, backing up my own, that the training was not very long and still incomplete: we started working with Brindi in early June while she was in the kennel on obedience & recall, but you cannot train for territoriality unless she is in her home. More importantly, the testimony established as fact that due to the trainer's busy summer schedule she had put off the critical final phase of working on my property directly - which was my sole goal in hiring her.

The actual meaning of Judge Buchan's sentence: saving Brindi's life, or letting HRM  decide, no strings attached?

"Therefore I order the ownership of the dog Brindi shall be forfeited to HRM immediately and from henceforth HRM shall have the sole responsibility to make all decisions concerning Brindi's care and custody. Furthermore, I direct HRM to provide Brindi with the same opportunities given to other animals that come into its care, in that I mean that Brindi be provided with the usual assessment as to her ability to be adopted or fostered to a person or persons thatey can provide her with all the due care, but who can also keep her under the controls as set out in Judge Murphy's judgment, excuse me in Judge Murphy’s judgment, of April 30, 2010. 

"Should HRM not find such a foster or adoptive home in the usual manner or as a result of ill health as established by a veterinarian as retained by HRM, I also order that HRM has the right to euthanize Brindi in the most humane way possible but in any circumstances not prior to August 1, 2012."
Here we go.

At first glance, Judge Buchan seems to be sparing Brindi's life. And it's true that she didn't grant the "order to destroy" that HRM was looking for - the whole goal of the prosecution. 

But Judge Buchan didn't make an order not to destroy Brindi either. She stops short of ordering adoption outright, and leaves it all up to HRM. Something very different is going on here. 

It's very troubling that an appeal judge apparently failed to catch the distinction. Relying on his version (below), at least one top lawyer did as well. I fear that this doesn't bode well for my appeal.

forfeited to HRM immediately; henceforth HRM shall have the sole responsibility to make all decisions concerning Brindi's care and custodyThis is the first indication: HRM makes all decisions about Brindi from now on. In an unprecedented move, the judge is bowing out.

same opportunities given to other animals that come into its care: In a further  unprecedented move, the judge is lumping Brindi in with all stray dogs the HRM pound takes in. She is not a stray. She is well-trained pet with a loving home waiting for her. Even if HRM is fairly deemed her "owner", the laws empowering the city pound to assess and adopt out dogs only apply to strays. HRM does not "own" dogs that end up at the pound. I am not even sure what it really means for a municipality to "own" a dog - however, I do know what its lawyers think it means.

  • Is the judge "legislating from the bench"? If so, why?
with the usual assessment as to her ability to be adopted or fostered: HRM has never allowed or provided any kind of "usual assessment" for lawfully owned but seized dogs at the pound or elsewhere. The reason is simple: HRM is not interested in assessments for dogs that it wants to kill, especially for dogs that stand a good chance of a positive assessment.

find such a foster or adoptive home in the usual manner: Again, no such procedure exists for finding homes for lawfully owned dogs HRM seizes to be put down, or gets owners to sign over to it (happens more often than you'd think). 
Why no "usual manner" of finding a foster or adoptive home? Simply because there's no need, because HRM plans to put down these dogs. 

  • Why does Judge Buchan speak about a "usual assessment" and a  "usual manner"? 
  • Is she attempting to change HRM's policies and procedures? 

but who can also keep her under the controls as set out in Judge Murphy's judgment: 
Judge Buchan did nothing to resolve the confusion in that judgment around the muzzle order conditions. So HRM's insistence that she should be muzzled everywhere, even inside a car or a home, is handed down (or up) to the appeal judge, as you'll see below.
I tremble at the thought of an HRM-approved adopter who does this to Brindi. 
God help anyone else who is willing to take a dog that HRM has been after for seven years. Which explains the dearth of local adoption offers, in contrast to plenty from outside HRM. I am probably the only person willing to deal with the pressure.  

Should HRM not find such a foster or adoptive home in the usual manner... HRM has the right to euthanize Brindi in the most humane way possible. 
HRM can basically decide it can't find a home, or just say it couldn't, then put Brindi down. 
Or HRM can put her down and refuse to disclose anything, claiming "solicitor-client confidentiality" or that it never makes such decisions public - although it never makes such decisions, period. The prosecutor has already used both of these reasons to avoid telling me anything about its plans for Brindi, as well as her current state of health. 

This is because, thanks to the judge, there are no strings attached: no need to report back to the court, inform me, or tell the public about its actions. 

It's not humane to put down a healthy animal. 

I have learned from experience that HRM doesn't do anything until and unless a judge orders it - and sometimes not even then. 

Does this leave any doubt about the sentence? Yes? Ask yourself: just how motivated HRM is to find a good home for Brindi? 

I can tell you: not much! Otherwise, HRM would not be so keen to go to court instead of come to an agreement in or out of mediation. See my post about my cousin.

Hell, they've already had her for years, why not?! Never mind that this came out of left field - neither I nor HRM anticipated it, and with good reason. It blew the law apart.

Did Judge Buchan fail to grasp that HRM had never ceased trying to kill Brindi since 2008 and the case before her was its third try? I doubt it.

Did she not believe - or not read - my submissions about how HRM refused my request for just such an assessment back then - to be done by an actual qualified professional at my cost, not a pound worker - and my offer to share the results?  That HRM even obstructed a court order to provide access to Brindi for assessment, then fought wildly against allowing a judge to read the results? HRM thus betrayed itself and exposed its real opinion about Brindi.

Why did Judge Buchan do this after hearing HRM argue vehemently against both returning Brindi and adopting her to anybody else. It has not changed its position since 2008 despite all the affidavits and assessments and lack of evidence of harm that is serious by any standard. Two months after this sentence, I tried to get a court order to foster Brindi pending appeal, and HRM argued the same points, adding an astoundingly twisted argument to the effect that if Ms. Rogier, "who calls herself a responsible owner," (actually I don't, my experts do!), is unable to control this dog, then we can't expect anybody else to do it either, so the only thing for Brindi is death. (see previous post) 

Tell that to the SPCA volunteers who loved Brindi, or the current poundworkers, who I am told just adore her. 

Notice the total lack of yardsticks: just how well-behaved must a dog and a human be? This alone should raise doubt in the mind of a judge but it hasn't so far. HRM never cites an actual standard, purposely. Not only because the law fails to provide a usable one, and none emerges from the record of prosecutions, but because HRM knows we would meet or exceed any reasonably sound standard. 

What is happening is that we are both being held to a non-existent abstract, shifting, grossly unfair standard - i.e., perfection. For a reason.

Getting back to the point... 

How the appeal judge interpreted the sentence that gives Brindi to HRM

Appeal Decision, July 11, 2015, p. 13-14
"Instead of an outright order for the destruction of the dog, the trial judge ordered ownership of the dog forfeited to HRM and directed HRM to have the dog assessed with a view to adoption or foster placement."
Sounds reasonable, although only if you overlook a couple important parts of the actual history. But it's not solid even in this version. Why not an outright order for adoption? 
"Brindi avoids execution" is not quite what we have here.

with a view to: a bit too vague for a direct order. It might be one, but for 

have the dog assessed: Okay so another assessment. Three different trainers and one vet produced five expert assessments from 2008 to 2012; all on file, all very positive. The last done for the judge's consideration. 

So, if she is really ordering HRM to adopt Brindi out, why would the vet call for yet another one, and an objectively inferior one at that? Let's unpack that: a. she implies the others, though uncontested by HRM because oh yeah they never produced an expert, are inadequate, and a pound assessment is better; and more to the point, 
c. she intended to re-open the question, allowing the unlikely possibility the assessment just might turn out negative enough (but again, no yardstick) to give HRM a reason to put Brindi down. 

Add to this three years of HRM's steadfast refusal to tell me when and if it assesses Brindi or the results and the decision to adopt or not, to agree to resolve it out of court, and the glaring absence of anything in its appeal arguments to the effect that I am in the wrong, it fully plans to adopt her. To mention a few. And the only conclusion you can come to is that HRM does not feel the sentence binds it to a decision to adopt Brindi, but rather leaves the decision in its hands. 

And I am just as certain, however, that in the next hearing, HRM's attack lawyers - there are two now - will happily agree with the appeal judge's interpretation, and, without hesitation, begin to accuse me of wasting the court's time and taxpayer money when all along all it wanted to do was adopt Brindi out. 

How HRM has interpreted the ruling 

note- HRM would not even foster her even though Judge Buchan mentions this; with my consent there is nothing stopping it.

Note that HRM, which has been trying to kill her for four years by that time - its third time at bat in fact - now gets to decide what is a good home for her. Wow.

What is also amazing about "usual assessment" and "usual manner" of finding a home is that HRM was perfectly okay with acting as if had one. The prosecutor even told Radio News95.7, "This way we have the best of all possible worlds," i.e., Brindi can be assessed and then we decide." Gee, two years in custody, just never found the time? What about the court order back in 2008 I had to get when refused to let her be assessed? The best of all possible worlds indeed! And yet a month earlier she'd told the same listeners that the law gave the judge only two possible options: order Brindi killed or return her to me. 

This has taught me HRM is capable of similar about-faces in the future and that does not bode well for my appeal, when they say "Brindi avoids execution, what's your problem?"

But these are not things that can be worked into a legal argument successfully, if at all. And certainly not by a non-lawyer. At any rate - I have no frigging clue how to do it!!!!!!!!!

Even if I tried to nail this down in a 40-page brief, HRM gets to write its brief afterwards, so it can adjust its position accordingly. 

There is no room for truth. Establishing the truth is not really the goal, I find. If it happens, it happens in an alarmingly ad-hoc way. Not always in the testimony. Not reliably in court decisions, at least not in mine. You can't bring it out by bringing out mistakes and omissions. It falls between the cracks. It gets buried under layers of carefully manipulated briefs and affidavits and decisions. And I notice lawyers are pragmatists: they don't even try to dig down to the truth, they just go with the latest version and argue that, even if it narrows the chances immeasurably.

That might be okay in lawsuits and even in some criminal cases, I don't know. But not for a dog. Sorry not sorry, they don't leave me or Brindi much breathing room.

So because despite all the time and money and energy I put into this year in, year out, and because I had the misfortune to unknowingly hire unsavory lawyers at the start, I cannot dig out of this mountain of what I call crap. Misdirection, smears, fakery, relying on prosecution records instead of facts even when they contradict themselves; ditto outdated reports & non-findings. Naked vitriol. 

In the time and space allotted, I just cannot detail every sleight of hand they make over the courts of seven years. They don't want to hear it anyhow. I cannot even hope to get a judge to take a good hard look at a single image, like this one,                                                                               
SPCA Brindi B-day Party with Doggie Cake, Baby, 2009

or this one,

Worst Injury Brindi allegedly caused, 2012


with the potential to create just enough doubt in his/her mind to prompt them to ask HRM one simple but relevant question: "Why did you ever muzzle this dog, let alone seize it?" or even better, "Why are you asking me to order this dog destroyed?"

Why should a truly "innocent" smart rescue dog with a big heart and a sweet nature, and a lone human who made a couple of honest mistakes that led to little or no harm, end up sick and old and separated forever?

There is no grain of truth, let alone reality, in Judge Buchan's condemnation of me. 

Around here, I am the only person I know who diligently trains and trains their dogs aiming for perfection. Or licenses them, gets regular checkups, has doggie health insurance... and picks up the poop!

But, and I am not being melodramatic here or anything, really, HRM is now breathing down my neck with a Motion to Dismiss. But every time I try to get through the documents, I see more how judges and lawyers are interpreting the "facts", the court decisions (and hence the merits) in ways that defy reality, this knowledge is like a nail driven deeper and deeper into my heart. 

I am glad Brindi can remain innocent of this awareness, because it would surely kill her. I just hope it doesn't wind up killing me. 

The same sort of traps and frustrations did kill Jeff de la Rosa in 2013, and I'm sure they're taking a pretty hard toll on Diesel's Dave Smith out west. The hyperbolic in those docs is so bad, anybody would wonder why the poor guy hasn't been jailed for life.

"Dog-aggressive" Brindi romping with a playmate she just met on a local beach, 2007

Judge Buchan goes on - my teeth clench: (red shows her original text corrected)

"And here we are today. While I acknowledge Miss Brindi, Ms. Rogier loves her dog Brindi, Brindi has spent the greater part of her life under the care of HRM than under the care of Ms. Rogier. The responsibility for this sad fact lies squarely at the feet of Ms. Rogier."
this sad fact is atrocious! One would expect a fair judge to condemn it, not blame me. This sad fact is 100% the responsibility of HRM, aided by willing pound contractors and courts. HRM unlawfully impounded Brindi for two years after a questionably lawful seizure in 2008, with a bona fide unlawful order to destroy that was struck six months later. But HRM did it again and held her for another two years before trial. A second similarly questionably lawful seizure only ten weeks after Brindi's release (the warrant, completely out of whack with the law and reality, does not authorize impounding for any length of time). 

HRM's pound contractors - first the SPCA, then Hope Swinimer - are complicit as well, both out of - well, greed, basically. The SPCA failed to uphold its provincial authority to protect animal welfare by not speaking up about Brindi immediately when I sought help, then by continuing to hold her month after month, with inadequate food and exercise, in a facility it knew was unsuitable beyond 30 days (in fact it wasn't even suitable for that long, and no facility is really suitable beyond 30 days!). Hope Swinimer did and is still doing pretty much the same, for even more money. 

(You're welcome, Hope.)

Apart from the time pending appeals, I keep repeating this and nobody seems able to contradict me, HRM had no legal authority to hold Brindi, let alone prevent me from visiting her, taking photos, or bringing her treats. (Thanks SPCA and Hope.) And HRM  also steadfastly refused my pleas and opposed a court motion for an order to foster her. Other Canadian cities have taken steps to insure no dog is held for more than a dozen days, but not HRM. 

The courts not only scheduled hearings many months after charges were laid, and added more at every adjournment request- something I notice does not happen even in criminal cases. They also refused to hear any motions to have her released or at least moved to a better kennel, or applications for an order to have her released pending trial outcomes - things that took a lot of time and effort that I tried about half a dozen times. HRM blocked one of them with a dirty trick and was prepared to block the rest if the judges had not declined jurisdiction.

And then there's the three and a half months added by Judge Buchan. Yes I will say it. She would not hear a motion to release Brindi, scolded me for the trial delay (is it my fault I injured myself badly in November and had to adjourn, or that the new date was in March? Or that HRM refused to make a deal back in 2010?). She said the trial must conclude by March 16, then put off her ruling to May 10, and again, skipping a sentencing hearing, to June 26, when she announced the sentence.  

SO I totally and utterly reject the offensive claim that I am at all responsible for the amount of time my poor girl has been locked up. Totally on you!

*The previous portion follows an excerpt from Judge Murphy’s quite over the top caution in the final paragraph of her decision: I do not think that I am overstating the likely outcome to suggest that Brindi likely would be destroyed if there was a further incident. Um, yes, yes, you are overstating quite a bit in fact, yes! You are unreasonably and unjustifiably prejudicing any and all matters that follow!

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