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... )
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.
Details:
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
Q. Right.
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.
A. Yeah.
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?
A. Yes.
Q. Had there been
fatalities that did not result in seizures to your knowledge?
A. Probably.
Q. Probably?
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?
A. Yes.
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)
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