Tuesday, December 15, 2015

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Who put the "no" in Nova Scotia? My December 2010 Memo to HRM Prosecutor Katherine Salsman

I  met with Ms. Salsman for three hours in early December, 2010 - exactly five years ago -  to offer five possible options for Brindi, in return for me pleading guilty and paying fines on three offences HRM graciously charged me for one incident, even though that incident happened by mistake and led to no "measurable harm" as they say.

By then HRM had been holding Brindi for nearly three months - again. HRM by-law thugs (sorry, but they were) had also evicted me from my home unlawfully, and Dawn Sloane and other members of Council refused to allow me my right of appeal. So my cat Amelia and I were essentially homeless. 

Two friends came with me to that meeting. It was Ms. Salsman who declared that the meeting was not a negotiation because she refused to negotiate. I said fine, I will talk, and you will listen! And since it wasn't a negotiation then there was no obligation for confidentiality. This was clear. 

Ms. Salsman, with an alarming air of authority (not to say belligerence) for someone so recently out of law school, vetoed every single offer. When I asked to talk with her superior, she thoroughly blocked that idea.

My friends and I went home. Or rather, I left, and they went home. I tried not to lose my mind. I wrote up what we each said in a memo and sent it to her about a week later. She wrote back insisting on confidentiality after the fact, even threatened various consequences. Too late.

So this is the memo. 

December 14, 2010

Dear Ms. Salsman:

Here is a summary of your position and points you expressed last Friday in our meeting and in
other conversations and documents since October.

• HRM is seeking guilty verdicts on one or more of three charges solely for the purpose of
obtaining a court order to kill Brindi.

• You rejected my offer to plead guilty on all three charges in exchange for Brindi’s return and
stated that HRM plans to ask for one dollar fines and seek a court order to destroy my dog.

• Under no circumstances will you, as HRM prosecutor,

1. Release Brindi pending trial, even on a bond as high as $10,000, which I offered.
2. Let her go to a foster home pending trial.
3. Drop the HRM request to put Brindi down.
4. Let her go back with me to the States (or anywhere else) permanently.
5. Let her go to another owner, either here or anywhere else.
6. Make or accept any offer for me to get her back and keep her alive.
• HRM will return Brindi only if ordered to [do so] by a court.

With regard to your goal as prosecutor, you stated further that:

• Under the law, you are not required to show any grounds for putting Brindi down,* though
you concede no reasonable court will order destruction of life without sufficiently compelling

• To that end, you seem to be relying on:
1. Judge Murphy’s statement on future offences in her April 30 provincial court ruling.
2. Two vague notions of acceptable grounds for killing a dog: a. “numerous offences” (tried or alleged), seemingly independent of factors such as severity or actions of the owner, and
b. the suggestion that “other solutions” have “not worked.”
However, with regard to my dog, you do not dispute that:

• Brindi’s behavior is not a threat to human life. She has never attacked a person. She does not
even respond to violent physical provocations by humans. In two instances, two years apart,
adults repeatedly kicked her in the head and body, and they reported truthfully that she did not
growl, bite, or make any attempt to defend herself.

• Brindi never caused a serious and/or life-threatening injury to an animal.

In light of this, I noted that:

• You dismiss any and all standards widely used in other jurisdictions to determine the fate of
dogs, including professional findings that they are untrainable or “incorrigible”.

• Your request to the court does not rely on evidence, behavior assessments, and/or legal statute,
and/or case law, including HRM’s own record of HRM by-law prosecutions since 2007, with
many cases of owners fined or charges withdrawn for dogs killing animals or attacking people.

• In your opinion these are of no relevance to HRM’s decision to seek a kill order Brindi, and
should bear no weight in court, notwithstanding Section 18 of the Criminal Code regarding
similar offenses, similar sentences.

• HRM has never at any time “worked with me” on this or any other matter. [Note: Judge Murphy came to this conclusion in her ruling of April 2010.]

• You affirmed that public opinion has no bearing on your decisions.

• While the offences charged are “strict liability offences”, where intent is not at issue, and
though you did not disclose evidence for it, you suggested I deliberately disobeyed the law.

• You disagreed that a photo of Brindi moments after seizure evidences her state of great distress,
even when compared with a photo of her in another setting.

• You stated it would be too dangerous to release Brindi pending trial, without explanation for
why all dogs are not seized after being reported for attacking. This includes the Armsworthy
case of a dog that killed a kitten while at large and out of the owner’s sight.

• You didn’t deny that for two years, HRM violated the Criminal Code’s limits on the detention
of seized property, but were unconcerned that it is about to violate again.

• You acknowledged that on Oct. 8 a Supreme Court justice neglected to validate any of your
arguments against my claim that HRM has no legal authority to hold Brindi indefinitely. While
he rather inexplicably decided he lacked jurisdiction to hear the matter, he proposed Section
16.2 of A300 (regarding the poundkeeper) as legal grounds. Your brief did not cite it, but in the
meeting, you stated, “I’m using it now.” However, it is unlikely to succeed in a future hearing,
nor would a judge be likely to uphold local law over federal laws on seized property.

I have pointed out that:

• This is the third time HRM is trying to kill my dog.

• This goal is not backed by evidence, statute, or case law. In terms of penalties, the applicable
law and makes no distinction as to number of violations and calls for fines in all instances.

• Your claim that she is too dangerous to live, or that I am too irresponsible to own her, is
unsupportable. While leashed and muzzled, Brindi was attacked by seven off-leash and atlarge
dogs this summer while on public property. She neither provoked nor retaliated. She
remained under my control and I fended off the dogs. Reliable witnesses observed three of
these attacks. In all incidents, I was able to regain control of her within seconds.

• Your witness statements suggest impure motives, notwithstanding concern for safety. Leaving
aside the fact that one works for HRM, and the other is directly related to five of eight HRM
witnesses in the trial, the evidence indicates a prior interest in Brindi’s death, as Katie Simms
reportedly urged a third party to report me during the summer. Further, on the night of Sept.
14, she immediately voiced a desire to destroy my dog, and statements show that for some
time, she and Tyson were too preoccupied in filing a report to notice any marks on their dog.
Had an arriving RCMP officer not suggested they examine her, it is unclear when or if they
would have. They then spent time photographing the dog rather than attending to her wounds.
As a vet later deemed them minor, compelling grounds to destroy Brindi are sorely lacking.

• Judge Murphy’s statements should not be misapplied in this regard. When it comes to
destroying personal property, there must be compelling grounds based on evidence.
Furthermore, a fair interpretation of her statements on future offences must consider all of
honourable judge’s decisions. After declining HRM’s euthansia request, without request or
explanation, she amended her own ruling that before she would release Brindi, the trainer
must testify we had completed the training as ordered: when the time came, she simply
granted release via faxes between her clerk and HRM counsel, without reviewing any details.

• HRM appears to have conceded the point by declining to classify Brindi as a dangerous dog,
as Judge Murphy recommended.**

• The trainer, Susan Jordan, supports us fully.

• I do not believe, therefore, that Brindi can reasonably be deemed a danger to humans or
“public safety”. She poses no greater risk to life and property than any other dog, and in fact, a good deal of evidence suggests she is possibly less of a risk than most dogs here. Yet she is
unfairly held to a higher standard than they, and has been unduly harmed in the process. This
is arbitrary and cruel. And it would set a very dangerous precedent to destroy her.

HRM’s inflexible position is unwarranted and unprecedented. I remain confident that if court
proceedings are conducted fairly, an order for “humane euthanasia” will not result. However, in
the unlikely event it does, I have advised you that I will file an appeal and that my lawsuit from
2008 is going forward. All indications are that HRM will never be in a position to legally destroy
my dog, including section 16.2 of By-Law A300, which is backed by a number of precedents, and
unlikely to be struck down by a judge for this purpose.

I would much prefer having my beloved family member with me now. It is blatantly inhumane for
HRM to pursue such a goal while impounding Brindi indefinitely. Despite being unlawfully
evicted by HRM, I am preparing applications for her release. And HRM has compelled me to
continue with my lawsuit against the municipality for wrongful seizure and such other causes of
action as malicious prosecution.

Until my dog and I were targeted under A300, I had no need of courts and lawsuits. I cannot
answer when people ask if my nationality is a factor for HRM. Like many others, I came here
because I believe in Canadian social values. Yet certain past remarks from HRM counsel do give
me pause, and on Friday, you replied, “I bet you do,” when I mentioned support to file suit from a
US jurisdiction. Allow me to assure you, I certainly take no pleasure in any of this. I have done all
I can to obtain a fair resolution and I regret that the taxpayers, myself included, bear HRM’s costs.
Fortunately for me, the SPCA waived Section 18.2 of A300 requiring me to pay boarding fees
totaling over $14,000. This should set a precedent for present and future costs, possibly also for
other dog owners in my situation. Indeed, Section 18.2 should not apply as long as HRM
continues to deny proper due process and arbitrarily enforce unjust (and/or non-existent) animal
control law.

In the meantime, I cannot overemphasize HRM´s responsibility for my dog’s health and wellbeing.
Until she is released to me, should any harm come to her, HRM bears sole liability.


Francesca Rogier

* S. 208 of the HRM charter, identical to S.177 of the NS Municipal Governance Act. To be
precise, the law says it is not necessary to give “evidence”. I believe this is not the same as “grounds”.

** However, if HRM applied A300’s definitions systematically, every dog would be classified as
“dangerous” when the owner is guilty of “owning a dog that attacks”, and this might cause a problem.

It turned out I was right that no judge would order Brindi put down. HRM did not succeed in getting a lawful "order to destroy" on its third try. But I never dreamt that a judge would use the occasion to "give" Brindi right back to HRM and let it decide what to do with her!!

In terms of my appeal... I realize now that this memo shows that I raised an issue of constitutionality of the "additional penalty" clause even before my preliminary brief and my written motion to dismiss and my in-court statements...!! On appeal, however, Ms. Salsman chose to claim that I had never raised the issue. Which is odd. And I even sent her a list of these things. And as a result of the court believing her and not glancing through my Appeal Book, which contained all of those documents and the trial transcript, my arguments got short shrift. 

The law IS unconstitutional, and dangerous in the hands of prosecutors interested in winning above all else. If the court will not listen to me, we are all in for more bad outcomes!

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