May 26, 2006

Put your money where your (dog's) mouth is!

The Banned Aid Coalition has been fighting the Ontario government for the past year and a half on behalf of ALL dog owners and they have been successful.

Public awareness of the dangers of Bill 132 has increased dramatically, media organizations are starting to understand the greater ramifications of legislation that punishes law-abiding citizens, and the best lawyer in the country has just finished arguing the legislation's constitutionality in Ontario's Superior Court, a first for Canada!

What does this mean to the average dog owner?

If the legal challenge is successful, governments across Canada will be discouraged from creating arbitrary, discriminatory, and unfair laws against dog owners. Precedent will have been set, experts will have testified, and arguments will have been made (and won) to help protect all responsible dog owners in the country. All of this information and testimony will be available to ensure that communities will consider dog owners as a large block of voters with a unified voice who will NOT sit back and watch their freedoms and their right to enjoy their pets be stripped away.

Success means that you won't be the next person to be forced to muzzle or sterilize your dog because of the way it looks.

Success means that the authorities won't be able to enter your home and seize your dog simply because your neighbour doesn't like you.

Success means that you won't be forced to prove the breed of your dog in order to keep it alive.

Success means that you will have the choice to buy, adopt, or rescue any breed you wish, instead of having the government decide which breed is right for you!

Most members of Banned Aid do NOT own breeds targeted and banned by the Ontario government. They simply recognize the danger of allowing a government to start on this path.

This legal challenge has cost, and is still costing, a lot of money. In the case of an appeal, it will cost even more.

There are approximately six million dogs in this country, living in at least a million or two households. A combined effort by dog owners to support this legal challenge would require very little money from each individual, in reality not even a dollar!

The Banned Aid Coalition is fighting for you and your dog(s). Please reward these efforts by supporting them financially. All members are volunteers. Most materials and supplies are donated by supportive organizations or by the volunteers themselves. Every penny raised goes to fund the legal challenge.

One dollar, ten dollars, or a hundred. It doesn't matter. What matters is that every dog owner in this country needs to stand up and be counted, BEFORE they come for YOUR dog!

Please make your cheque payable to Ruby and Edwardh and mail it to:

Ruby & Edwardh
11 Prince Arthur Ave.
Toronto, Ont.
M5R 1B2

IMPORTANT: Please indicate on the envelope and on the cheque memo line that the money is for the BANNED AID LEGAL FUND.

If you would prefer to donate online using PayPal, simply go to the DLCC Donation Page at:
http://www.doglegislationcouncilcanada.org/donate.html

For those of you who have already helped, the dogs of Ontario and the rest of Canada thank you!

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May 25, 2006

"Reason" Enough

Congratulations to Tammy with Reason, the number one OBEDIENCE American Staffordshire Terrier in Canada for the second year in a row!

Click here to read why Reason is a perfect example of BSL targeting the wrong dogs and the wrong owners.

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May 24, 2006

Muzzle ALL Dogs?

At first glance, this article by Roger LeBlanc in the Guelph Mercury appears to be positive, especially when read by "pit bull" owners who have been the sole target of the Ontario government's breed-specific legislation.

The approach suggested by Mr. LeBlanc, however, is yet one more assault on responsible owners of all dogs, regardless of breed.

Muzzle all dogs over 40 pounds!

Let's step back for a second and look at this logically.

First, study after study has shown that approximately 85% of all dog bites occur on the dog owner's property, a relative's property, or a neighbour's property. So, right off the bat, 85% of all dog bites would NOT be solved by this proposal, since the dogs would not have to be muzzled on private property.

Second, there are very few dog bite incidents that involve a dog being walked on leash. Most incidents outside an enclosed property are cases of dogs that have escaped from private property or cases where owners are walking their dogs off-leash illegally. If irresponsible owners are able to flaunt existing laws with impunity, then they'll continue to flaunt more restrictive laws. We see this today in Ontario, with many owners of restricted dogs still walking their dogs unmuzzled and off-leash. The only ones who seem to be obeying the law are the ones who weren't the problem in the first place - the responsible owners who care about their dogs and the community in which they live.

Yes, we do have Michael Bryant's example, the case of Lauren Harper, the five-year-old daughter of Louise Ellis, who was severely bitten by an on-leash dog, after having been given permission by the owner to pet the dog. If, however, we look a little more closely at that incident, we realize that a) the owner was severely intoxicated and b) the dog ALREADY had a muzzle order for having previously bitten. This is an example of an owner who would not have obeyed ANY law, regardless of whether or not it applied only to him. In all likelihood, little Lauren would not have been protected by an all-dog muzzle law because this man was either too drunk or too insolent to obey it!

Third, there must be some consideration, when creating laws, to try to find a balance between public safety and the severe restriction of responsible, law-abiding, tax-paying citizens. If we truly wanted to prevent traffic fatalities and we weren't concerned at all about the rights of car owners, we would simply ban all cars. Presto! No more deaths from cars! But we don't do that because the number of traffic fatalities does not justify that sort of sweeping, invasive legislation. If we wanted to prevent pedestrian fatalities, we could fence every road so that pedestrians are forced to stay on sidewalks until they reach an appropriate crossing. We could put gates in those fences that only open when the WALK signal is activated. Aside from the astronomical costs of doing this, we choose not to because we can't treat everyone as if they have no brains. That's what a police state does, but, as a progressive and free society, we give people more rights. One of those rights is the right to make the wrong decision. As an alternative to the micromanagement approach of a police state, we instead try to educate the public on the consequences of making the wrong decision and then we enforce those consequences when a transgression occurs.

The same applies to dog bites. There is NOT an epidemic of dog bites and there is certainly not any great number of attacks on members of the public by out-of-control, rampaging dogs. In the Toronto area, last year, there were 1,000 reported bites (not necessarily attacks, just recorded bites). Out of those, we can surmise that approximately 85% (or 850) were on private property, where muzzle laws would not apply. Out of the remaining 150, probably half were small dogs (under 40 pounds). So, at the very most, we had 75 bites that a muzzle law may have affected. My guess, however, is that a large number of those would have been dogs that had escaped their houses or backyards and so would never have been expected to be muzzled. Even so, if we kept the number as is, that's 75 bites (not necessarily attacks) out of an estimated 250,000 dogs in the Toronto area. Assuming that half of all dogs are over 40 pounds (probably more than half), that means that we're going to have to muzzle 125,000 dogs at least twice a day, every day of the year, in order to perhaps, possibly, prevent 75 bites.

In contrast, those 125,000 dogs are now not going to be properly socialized, are not going to have the opportunity to interact positively with members of the public, particularly children, and are not going to be comfortable or relaxed around other dogs because they're constantly on the defensive. In essence, we will be creating problems where there were none.

I have seen this with my own dogs, who, rather than enjoying their daily walks, are instead focused entirely on these correction devices attached to their faces. It has created frustration and it has caused their social skills to decrease. When approached by other dogs especially, they are automatically placed into a defensive frame of mind and that body language is transmitted to the approaching dog, causing inappropriate behaviour among all the dogs (muzzled or not).

As proposed ad nauseum to the Ontario government, a better approach would be education and enforcement, the same as speeding, the same as drunk driving. On a massive scale, tell people why their behaviour is a problem. Explain the consequences. Then, when people ignore the law, hit them with a very big hammer.

That's a better option than hitting everyone with a small hammer, every day, twice a day, just in case they might decide to do something wrong, sometime in the future!

In order to understand how far-reaching and invasive Mr. LeBlanc's suggestion might be, let's apply it to muggings or assaults on members of the public by criminals. Most of these are committed by men. So, in order to prevent public muggings and assaults, we should require that all men be handcuffed when out in public. This would, of course, create a huge public outcry. So, instead of applying it to all men, we'll target a specific group of men - those over two hundred pounds (because they may do more damage), those who live in risky areas (because that's where the majority of the muggings occur), and only at night time (because that's when most of these incidents happen).

The concept is no different. Trying to prevent a miniscule number of crime incidents by targeting a huge number of responsible citizens is not good law. It treats your average member of the public as if he or she is an idiot, it tramples all over their rights as citizens, and, in the end, it doesn't solve the problem!

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May 21, 2006

More places NOT to visit in Canada

Another couple of places in Canada that have decided to get rid of their "dog problem" by getting rid of the dogs that AREN'T the problem.

Florenceville, New Brunswick

Home of McCain's, whose products many dog owners will no longer be buying, and also home of an incredibly narrow-minded town council that believes you must always stick to the rules, even if they don't make sense! I hope they remember that "I'm only obeying orders" is NOT an excuse to circumvent morality.

Caveat says it much better than I in this article.

Oakville, Manitoba

Update May 23: Oakville has put their plans for BSL on hold, pending consideration by council. Perhaps the outcry from dog owners across Canada had some effect!


This village is part of the Regional Municipality of Portage la Prairie, west of Winnipeg. I would suggest putting aside any thoughts of visiting the entire RM and letting them know why.

Here's their contact info:

35 Tupper Street South
Portage la Prairie MB R1N 1W7

Phone:204-857-3821
Fax:204-239-0069
E-mail: rmptge@mts.net

Reeve:
James A Knight

Chief Administrative Officer:
Richard C Locke

Councillors:
Owen O Williams
Harold W Brown
J. T. Toby Trimble
Raymond A. Davidson
Terry A Martin
William A Alford
Wallace Ducharme

This Winnipeg Sun article gives you an idea of how politicians can overreact to public pressure, especially the second last sentence:

He admitted he's not sure any pit bulls currently pose a threat to Oakville, or even live within the town.

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May 18, 2006

Court Report May 18 3:30pm

Court report courtesy of Steve Barker.

Here is my summary of the morning of May 18.

Legalities require me to tell you that I'm not a lawyer and this document contains only my interpretations of what was said in court and my opinions. Nothing in this document should ever be construed as advice. This applies to my previous posts as well and they will be modified to note this.

Well, they sure managed to fit a lot into two and half hours this morning.

CROWN ATTORNEYS

The crown started with the arguments about "trial fairness", which was Clayton Ruby's third reason for unconstitutionality.

The crown argued first about Section 19 of the DOLA, where a document from a vet can be entered into evidence as "proof" that the dog is a pit bull. Ruby's argument was that cross-examination of a document was not possible and that, even if the vet is called as a witness, because the defendant would have to call the witness, the defence can only examine the witness "in chief", not cross-examine him. This means that it is dependent on the judge as to how "rough" the defence can get with the vet.

Crown pointed to the section Provincial Offences Act (POA) that applies to proceedings under DOLA. Part IV, Section 46, subsection 2 says that the defendant is entitled to make full answer and defence. Subsection 3 says that the defence may examine and cross-examine witnesses. Ruby responds to this later on.

Then the question was "how do we get a vet into court?" The answer is that the defence may issue a summons. What does it cost to get a vet? The court costs are $5.00 (i.e., not prohibitive) and are only applied upon conviction.

Also, the defendant could easily bring a motion before the judge to allow cross-examination (i.e., treat the witness as hostile).

Even without cross-examination, the defence could still put contradictory evidence to the witness and, if the witness is hostile, request permission to cross-examine.

The crown's basic argument is that, in order for cross-examination to NOT be possible, the legislation would have to EXPRESSLY prohibit it, which the DOLA does not.

Now to Section 1 of the charter (reasonableness):

According to the crown (which Ruby later challenges), the onus is on the applicant (us) to establish that there has been a violation of the charter. In this case, what the crown is saying is that it's not the crown's responsibility to prove that the legislation is reasonable. It's the applicant's responsibility to prove it isn't. Ruby disagreed with this (later) and provided arguments to the contrary.

The key to reasonableness is "harm to society". The government has to prove a reasonable apprehension of harm.

Then he went off on a tangent for a second to talk about whether the judge should allow him to bring into evidence the legislative committee transcripts. He provided 3 case histories that allowed legislative committee transcripts into evidence. Ruby later attacked all 3 cases as irrelevant to this case.

The judge noted that the only time legislative committee transcripts are allowed to be used as evidence is to help with determining the INTENT of the legislation. She noted that there is no dispute among anybody about the INTENT of this legislation (i.e., reduction of harm to society), so why do we need the transcripts? No real answer from the crown on this.

Back to Section 1 of the charter.

Section 1 requires a "proportionality analysis" to determine if the legislation is reasonable in its attempts to achieve its objective.

The proportionality analysis consists of three parts:

1. There must be a rational connection of the challenged portion to the purpose of the legislation. In this case, the challenged portion is the banning and restrictions of pit bulls. The purpose of the legislation is dog bite reduction and public safety. Is there a rational connection between banning pit bulls and increasing public safety?

2. The legislation must minimally impair the lives of those it affects. This brings in the discussion of alternative measures that the government did or did not consider. Does banning pit bulls minimally impair those it affects compared to other, more generic, legislation?

3. The legislation must be proportional to the risk of harm. Is banning pit bulls an overly extreme measure considering the risk of harm from the dogs?

Rational Connection

Using a case related to obscenity charges for pornography (which was used throughout this case), the court in that case noted that, while there is NOT direct link between obscenity and harm to society, it is reasonable to assume that exposure to certain images could change a person's attitude towards the group depicted in those images (specifically women and children).

In the face of insufficient social or scientific evidence, it is sufficient that Parliament had a reasonable basis for assuming harm. Parliament does not need proof in order to reasonably predict harm. The government is afforded a margin of appreciation to achieve their objective of public safety. Although there was no conclusive proof of harm, the legislation could reasonably conclude that there was harm. In our case, the crown contends that their proof is actually better than the proof that was in the obscenity case and that legislation was upheld.

The judge responded by stating that the issue is not whether pit bulls cause harm, but whether it is JUST pit bulls causing harm or whether other dogs could cause or have caused similar harm. She asked the question "is that harm caused because the dogs are pit bulls"?

Minimum Impairment

There is no constitutional right to own a pit bull. This was reiterated throughout the case by the crown. I find it interesting that Ruby has never stated that we have a constitutional right to own a dog. He is saying that we have a constitutional right to NOT be imprisoned for owning a certain type of dog.

Leashing, muzzling, sterilizing constitute reasonable impairment.

Courts have held that Parliament must be given some leeway in restricting the public in order to prevent harm to the public.

Back to the obscenity law, many of the alternatives are RESPONSES after the harm has occurred. The judge responded "if one could determine ahead of time, through a temperament test, prior to an attack, if a dog was dangerous or likely to attack, would that not be a reasonable alternative and impair less? Also, would obedience school prevent attacks?"

The crown replied that there is no evidence presented to this particular court that obedience training prevents attacks.

Crown: Pit bulls are unpredictable. There is no warning of attack.
Judge: Saying that there is no warning of attack at the time of the attack is not the same thing as saying that dog cannot be assessed for dangerousness [using a temperament test].
Crown agreed.

Crown quoted AVMA report (Dr. Clifford) stating that pit bulls attack without giving warning signals. He quoted another AVMA report (Carl Seminac sp?) and Richard Stratton's book stating that both purebreds and crossbreeds are unpredictable. The Clifford report also discussed the wisdom and policy of allowing inexperienced vets to handle pit bulls, given that they are unpredictable and attack without warning. The Clifford report also stated that pit bull bites are more serious that other bites, directly contradicting Dr. Brisbin's that the "bite and hold" tendency of pit bulls actually causes less damage than the "slash and tear" of other breeds.

Proportionality (Balancing)

The effects of the law so severely infringe on the right of the individual that it is grossly disproportionate to the positive effects of the law. Crown's argument is that the harm is severe enough and the restrictions reasonable enough that this legislation is proportional.

Federalism (Animal Pedigree Act)

In order to discuss a conflict between provincial and federal legislation, there must first be an assumption that both pieces of legislation are constitutionally valid. In this case, the constitutionality of the provincial legislation is in question, so this argument regarding federal paramountcy may be moot.

Also noted that Attorney General of Canada has not requested to intervene in this case, which he might have done if he felt that the two pieces of legislation conflicted.

Quote from a Supreme Court decision: "Courts should be particularly cautious about invalidating provincial legislation due to paramountcy if the federal government has not intervened".

Section 95 of the Constitutional Act of 1867: Each province may make laws in relation to agriculture. Any laws of the province are valid in as far as it is not repugnant to a federal Act of Parliament. Where there is inconsistency, the provincial legislation is inoperative to the extent of the inconsistency. It is only inconsistent when it is impossible to obey both laws.

A federal law regulating a field does not necessarily "occupy the field" (i.e., prevent provincial legislation from addressing the same field). The purpose of the APA is to promote the purity of a breed and only this purpose should be considered when determining paramountcy. The purpose of the DOLA is public safety whereas the APA's is commerce and agriculture. Because of these two entirely different purposes, they can co-exist and be obeyed simultaneously.

In the Rothman's case (Saskatchewan Tobacco Control Act) where provincial legislation prohibited retail tobacco displays while the federal legislation did not, the provincial legislation simply prohibited something that the federal legislation did not. Both could be obeyed because they did not expressly conflict.

Final Comments

Judge: "Are there any sections that, if found unconstitutional, the crown would be willing to sever?"

Crown focused particularly on jail time and on the vet's certificate (i.e., bring a vet into court to testify instead of just a document). Basically, he left it up to the judge.

CLAYTON RUBY

Severability

The judge has no option to sever parts of the legislation. It was not requested by the applicant. The only option to the judge is to make a decision if the entire legislation is constitutional or not. If severability becomes an issue, then this must be approached carefully because of the complexity and arguments will have to be made from both sides on that issue.

Legislative Committee Transcripts

In the cases listed by the government, the legislative committee transcripts were only used to determine the scope of the legislation, not the wisdom or the facts. In our case, nobody is question the purpose of the legislation.

Quote from Ruby

The government is asking the judge not to make any findings of fact. In fact, they're saying "For God's sake, don't make any findings of fact!" This is because the facts are not on their side. The whole point of their argument is "We're the government. Trust us!"

Reasonable Apprehension of Harm

Regarding the legislature having a "reasoned apprehension of harm", it appears that the cases to which this has applied in the past have all talked about trying to estimate what harm might occur based on certain actions or legislation. These cases did not have existing evidence of harm. They had to guess what the future harm might be. In our case, we have evidence of harm from all breeds, including the pit bull attacks listed by the crown. So there is no need for a reasoned apprehension of harm. The legislature should have given more attention to the existing evidence instead of just guessing at the possibility of future harm.

Core vs. Periphery

There had been quite a bit of discussion about this earlier, which I hadn't really covered. Ruby's point had been that there are a lot of dogs that "sit on the edge" of the definition of pit bull (the periphery). The core are the dogs that are one of the three listed breeds. Much of the reason for the arguments from the crown about trying to prove that "pit bull" is a commonly used word that everyone understands is so that a lot more dogs could get thrown into that definition, thus making the "core" bigger. One of the tests of reasonableness or proportionality is how big the core is compared to the periphery. How many dogs are guaranteed to fit the definition and how many dogs MIGHT fit the definition?

To show that the core in this case is insignificant, Ruby listed the registrations last year for Amstaffs and Staffy Bulls in Ontario (2 and 114 respectively). These dogs are insignificant in the population as a whole and are also not the problem, being purebreds that are unlikely, based on existing statistics, to ever be involved in a bite incident. "Pit bull terrier" and "substantially similar", on the other hand, are clearly definitions designed to catch as much of the periphery as possible.

The DOLA does not require the judge to consider the breed standards, unlike the Winnipeg bylaw which does.

In the cases of the challenges to the Winnipeg bylaw and to a Quebec municipal bylaw, the courts must start by assuming that the bylaws are valid and are the will of the people. Then they must be proved to not be. This is the exact opposite of what's required here. The government must prove that their law is constitutional when it comes to Section 1 of the charter.

In the cases where "substantially similar" or like phrases have been challenged and rejected, the purpose of the legislation must help interpret that phrase. In this case, the purpose of the legislation (danger) cannot help with the interpretation of "substantially similar physical characteristics" because all the evidence shows that you cannot determine the dangerousness of a dog by its physicality.

Canadian evidence (Zaharchuk) takes priority over U.S. evidence (Beck and Skeldon).

Bite Victims

The bite evidence of the victims cannot assist the court in the two questions:
1. Is the ban necessary?
2. Is it reasonable? (I think that's what Ruby said)

Section 1 Onus

Also, the onus is on the crown to prove that the legislation is reasonable under Section 1 of the charter.

Provincial Offences Act (Trial Fairness)

There is no right under this legislation to cross-examine the veterinarian who provided the document. It is only a privilege. Thus, it violates a defendant's right to make full answer and defence.

Rational Connection

If significant harm can and has been caused by all breeds of dog, then rational connection is lost between the harm to society and the ban on pit bulls.

Regarding pit bulls attacking without warning, specifically regarding temperament testing, Ruby discussed the American Temperament Testing Society results. He also quoted the Ohio case, where all experts except one agreed that all dogs give warning signs before biting.

In response to the crown's suggestion that alternatives other than banning pit bulls were in RESPONSE after attacks have already occcurred, Ruby notes that other portions of the DOLA allow for proceedings against an owner before an attack ever occurred (menace to public safety, failure to prevent a dog from being a menace to public safety).

Federal Paramountcy

The federal government has not intervened in this case for EITHER side. It is not here supporting the provincial government either. No conclusion can be drawn in favour of the crown just because the federal government has not intervened. Its own legislation is not at risk, so it doesn't need to intervene.

COURT IS FINISHED

Judge reserved her decision. We have no idea on timeframe for a decision. We should expect at least two or three months, maybe longer.

I am going to try to get the names of the judge and the crown attorneys for historical purposes.

Over and out. I'm going to bed.

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May 17, 2006

Court continues Thursday May 18

The Ontario "pit bull ban" case continues on Thursday, May 18, at 10:00 AM, not at 9:30 as originally posted.

Room number is not known. Address is 361 University Avenue (at Queen). Go to information desk and ask what room the "Catherine Cochrane" case is in.

Check Thursday around noon for an update from the morning session.

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May 16, 2006

MORE COURT ON THURSDAY MAY 18

Court report courtesy of Steve Barker.

The case overran its time on Tuesday, so it will continue on Thursday at 9:30 for probably 2 or 3 hours. Note the change in time (not 10:00). I don't know the room number, but I will find out.

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Court Report May 16 9:30pm

Court report courtesy of Steve Barker.

IMPORTANT NOTE: Because the government overran their time, the case will continue on THURSDAY morning at 9:30 (not Wednesday) for probably 2 or 3 hours. Note the time change (not 10:00). I don't know the room number, but I will find out.

Here is my summary of the afternoon of May 16.

Legalities require me to tell you that I'm not a lawyer and this document contains only my interpretations of what was said in court and my opinions. Nothing in this document should ever be construed as advice. This applies to my previous posts as well and they will be modified to note this.

Well, we knew this would be a more difficult day, since the government would be doing all the talking. As mentioned in my previous post, the morning was simply a semantic dance around breed definitions. The afternoon was much different.

The purpose of the afternoon presentation was to attempt to persuade the judge that pit bulls need to be treated differently from other dogs. As such, pit bulls must be shown to be more dangerous, so much effort was put into this. If they are successful in this attempt, than that would go towards proving the risk to public safety that is required for legislation to be considered reasonable.

The crown discussed their evidence, originally received back in February and March, related to six separate attacks by dogs that were identified as pit bulls. They discussed the details of each attack, including graphic descriptions of the attacks themselves, of the injuries they caused, of the repair and recuperation required, and of the long-term effects of these attacks. Five out of the six attacks were horrific in nature. The other, although injurious to humans, particularly children, did not result in quite the level of injury, but was used in part to try to show the tenacity of the attacking dogs.

The six incidents were:

Carrie Hewitson (young adult, Brantford, 3 dogs, 2003)
Darlene Wagner (postal worker, Chatham, 2 dogs, 2004)
Robert Adams and brother (12 and 4 year old boys, Ottawa, 2 dogs, 2005)
Jadon Laroux (sp?) (2 year old boy, Ottawa, 3 dogs, 2005) and father and neighbour
Lauren Harper (5 year old daughter of Louise Ellis, Toronto, 1 dog, 1994)
Tom Skeldon testimony (young boy, Ohio, unknown number of dogs)

I understand that no part of the witnesses' testimonies related to these attacks was challenged by Mr. Ruby.

Crown also presented the testimonies of various police officers related to shooting attacking pit bulls. Judge asked if other non pit bull breeds had ever had to be shot by police officers. Crown was unable to answer this because no evidence had been introduced regarding this. The lawyers and the judge can only deal with evidence that had already been introduced back in February and March.

Crown made two points regarding targeting pit bulls:

1. The legislature has perceived pit bulls as a problem and has the right to address it.
2. It is not the role of this court to determine the wisdom of the legislation, just its constitutionality.

Later, the judge made a comment that a number of the attacks listed seem to clearly indicate a problem with the owners rather than with a particular type of dog. She also made the argument that we know well, that problem owners will simply move to a different breed.

Crown's answer, after what I assume was a discussion amongst their lawyers during the break, came back and discussed how assault weapons are not allowed in this country, no matter how good an owner you may be. He describe pit bulls as the "assault weapons of the canine world".

The test for overbreadth is gross disproportionality, the proof of which rests with the applicant (us). It is a valid state interest to protect the public from harm.

How much harm do you need to justify the state interest? One judicial decision stated that, once it has been demonstrated that the harm is not trivial or insignificant, then it is Parliament's job to determine how much to legislate.

A reasoned apprehension of harm is all that is required. Government does not have to scientifically or statistically prove the harm exists before legislating preventive measures.

In one case discussed earlier, obedience training was a suggested alternative for management of a pit bull. Crown argues that muzzling and leashing are also valid and reasonable management tools and that sterilization is the ultimate management tool that eventually eliminates the risk of harm entirely.

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Court Report May 16 1:30pm

Court report courtesy of Steve Barker.

Here is my summary of the morning of May 16.

Legalities require me to tell you that I'm not a lawyer and this document contains only my interpretations of what was said in court and my opinions. Nothing in this document should ever be construed as advice.

It was the government's turn to make their case.

Sonny Allison, a director in the CKC and a fighter against BSL, described the entire morning as "a semantic dance around the elusive definition of a mixed breed of dog whose breed cannot be scientifically proved". I would agree.

The focus is on two things:

1. Can you identify a pit bull? This applies to both the vagueness and overbreadth arguments.
2. Do pit bulls need to be treated specially? This applies to both the overbreadth and the reasonableness arguments.

The entire morning was spent on the vagueness argument.

The crown went through a number of case precedents where upper courts have allowed vague laws. His basic argument is that most laws are general in nature, with the judges dealing with specifics in court cases and that this is no different.

There are four points to be made re vagueness:

1. The law must be intelligible. However, according to the case law that he quoted, it does not have to be intelligible (i.e., interpretable) by the average member of the public so much as it has to be interpretable by a judge. He made arguments that it is intelligible, based on the statement that the word "pit bull" is so commonly used that everyone knows what it means. He also argued that it is possible to identify the predominant physical characteristics of a particular breed and whether an individual dog has some or all of those characteristics.

2. There must be an area of risk defined. What risk is the law trying to prevent? This will also be brought up this afternoon when they try to prove that pit bulls are dangerous enough to be specially regulated.

3. The law is entitled to speak generally and allow the judges to balance specific arguments pro/con during a court case.

4. The threshold for vagueness is very high. Courts are reluctant to find laws unconstitutional due to vagueness without first trying to interpret the law exhaustively in other ways.

The next part was just the word "pit bull". He brought up numerous court cases where the word was used and accepted, as well as testimony from both sides that used the word. He argued that it is an identifiable dog, that "pit bull" refers to APBT's, AST's, and SBT's and dogs that are substantially similar. He spent a lot of time on this.

He then discussed the breed standards for the three purebred breeds, basically to prove that it is possible to identify the unique characteristics of a breed by sight alone.

He also requested that the "pick the pit bull" pictures NOT be allowed into evidence. Ruby had used these pictures to show that police officers were not able to accurately identify pit bulls. His argument is that we were unable to prove, through registration papers and/or other methods, that the 25 dogs shown were actually the breeds listed. In theory, because we didn't prove that (in his view), they could all be pit bulls or they could all be Jack Russell Terriers. There is no proof that the dog in the picture is the breed we say it is.

Accordingly, if the pictures are accepted based on Zaharchuk's evidence that they each accurately represent their breed, then it is possible to identify dog breeds by sight.

This afternoon will be more focused on the unique danger to society that pit bulls represent. It will be more difficult to keep our mouths shut during this, but Breese has told us to not even roll our eyes or we might get kicked out.

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May 15, 2006

Court Report May 15 11:00pm

Court report courtesy of Steve Barker.

Here is my summary of the afternoon of May 15. My apologies for the late report. I just got home now. My attempts at "cellphone blogging" have been remarkably unsuccessful.

Legalities require me to tell you that I'm not a lawyer and this document contains only my interpretations of what was said in court and my opinions. Nothing in this document should ever be construed as advice.

Trial Fairness

Clayton Ruby continued his arguments, focusing a lot on his third argument - trial fairness.

He first focused on Section 19 of the DOLA, related to accepting into evidence a document purported to be from a veterinarian, stating that a dog is a "pit bull".

This is a case of the legislation forcing a judge to admit into evidence what would normally NOT be admissible - a document of opinion without a witness testifying. The crown can choose not to use such a document, but if they do, the legislation does not give the judge the choice to rule on the admissibility of the evidence. It must be accepted. This is not normal or acceptable.

In addition, defence cannot cross-examine the veterinarian because he does not need to testify. They can subpoenae him as their own witness, but at their own cost. Even then, they cannot cross-examine him, only examine him "in chief". Basically, it's more difficult to "go hard" at him.

The credibility of the veterinarian is crucial, considering that the identification of breed is the crux of the legislation. This document does not even have to be sworn in front of a JP. There are no safeguards in this substitution to ensure that the statement is likely true.

There is also a mandatory presumption of fact. It substitutes non-evidence (document) for evidence (witness testimony) without an overriding reason why the original witness should not be examined. There are valid reasons for not having a witness testify (protection, national interest, etc), but protecting a vet from cross-examination is not one of them.

Clayton Ruby also asked that the judge deem inadmissible some government evidence based on legislative and committee Hansards (transcripts of legislature and committee sessions). The legislative Hansard contained some of Michael Bryant's comments and the committee Hansard contained statements made by members of the public. Case precedent shows a reluctance by courts to accept politicians' legislative comments as evidence and case precedent always refuses to accept statements by members of the public in committee Hansards. This is because neither of these are sworn statements and neither have the option of cross-examination.

The government also has a responsibility to show that there were reasonable alternatives, if they were proposed. Their Hansard choices were biased in their favour, while they ignored the 80% of the committee presentations against the ban, many of which presented reasonable and less restrictive alternatives.

Reasonableness Test

A law that imprisons citizens can fail the vagueness and overbroad tests (section 7 of the charter) can still be saved by section 1 if the government can prove that the legislation, even though overbroad or vague, has a rational connection to its purpose. The purpose of this legislation is to reduce dog bites. Is the legislation reasonable enough to be saved by section 1 in order to accomplish this purpose?

Ruby then listed all the reasons why banning pit bulls will not solve the problem of dog bites, including quoting studies and witness testimony.

This legislation, as a result of the reasons listed earlier, fails the rational connection test. This is actually quite rare in section 1 challenges. Most section 1 challenges focus on legislation not being the least restrictive option. This legislation also fails that test, since the government was provided with ample testimony offering proven alternatives.

Using the recent Supreme Court ruling on the Sikh student who wanted to take a kirpan (traditional religious dagger) to school. In finding in favour of the student, the Supreme Court said that the risk to community safety must be unequivocably proven in order to not violate the charter. Since even the government's own witnesses agreed that most dogs targeted in this legislation are happy, friendly pets that will never bite anyone, the risk to community safety is not great enough to justify vague or overbroad legislation.

The Supreme Court did rule that a breathalyser test law could be saved by section 1 because the "extreme" measures were rationally connected to the purpose of the legislation. This was proven using scientific research and statistics. Our legislation has not been proven this way. In addition, in order not to be unreasonably restrictive on citizens, the test must be performed twice with at least fifteen minutes in between tests, and must be completed within two hours. This shows that the lawmakers made every attempt to keep the infringement reasonable.

Federal Animal Pedigree Act

Breese Davies, Ruby's associate who has done a lot of work on this case, presented an argument that the provincial law conflicts with the federal Animal Pedigree Act. The federal APA stipulates that the only people allowed to identify breeds are pedigree registries, in this case the Canadian Kennel Club. Nobody else in this country is allowed to identify a breed and the only reason that the pedigree registry is allowed to identify the breed is if they have the pedigree of the dog. In conflict with this federal law, the provincial legislation, without any consideration that there is a federal law prohibiting it, gives the province the power to identify breeds and then hands that power even further to veterinarians, whose regulating body (the OVMA) has testified that it is impossible for them to perform this function.

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Court Report May 15 1:15pm

Court report courtesy of Steve Barker.

Here is my summary of the morning of May 15.

Legalities require me to tell you that I'm not a lawyer and this document contains only my interpretations of what was said in court and my opinions. Nothing in this document should ever be construed as advice.

The courtroom holds about 40 people. Packed. Wish it was bigger.

Clayton Ruby is great. Much drier in this environment than in front of the cameras. Much more of a quiet and respectful environment. Still manages to get in a dig at the government occasionally. Refers a lot to case law related to his three arguments. He uses cases that have nothing to do with dogs to illustrate the concepts.

He started by reviewing the pit bull definition, the restrictions and regulations, the penalties, and the Animals for Research Act.

Three arguments:

1. Overbreadth

The law is too overreaching in that it captures many dogs not of the proscribed breeds and many dogs that are not dangerous (the stated purpose of the law). He used this category to discuss whether or not pit bulls are more dangerous than other breeds.

Note that the U.S. courts are not allowed to use overbreadth to strike any law except if it violates freedom of speech. Not the same here in Canada. We can use the overbreadth argument much more liberally.

The main argument is that the constitution is not there to BALANCE government interest (public safety) against individuals' interests. The constitution is there to PROTECT the individual IN SPITE OF a legitimate government interest.

Nice quote: "These dogs are better than most, based on the evidence in Canada, which was not contested by the government".

He also listed the other alternatives that the government could have considered that were less restrictive on a specific group.

2. Vagueness

The law does not provide the ability for a person to know if they are obeying the law and it fails to protect citizens against arbitrary application of the law. A vague law is a law that fails to provide a boundary between permissible and impermissible behaviour.

Noted that the government selected a group of people (vets) to be the legal identifier of pit bulls when that same group (the OVMA) has testified that they can't do it.

Discussed the Sarnia case, where the judge specifically said that the law is vague.

Excellent evidence read from Lee Steeve's testimony that you cannot identify a breed by its appearance alone. Her response to hard cross-examination was great, specifically about how, in certain circumstances, poorly breed Labrador Retrievers could be substantially similar to poorly bred American Staffordshire Terriers.

Quoted Tom Skeldon (Ohio dog warden) from the Ohio case where he admits he can't identify a pit bull.

Discussed the significant differences between U.S. law and ours. A constitutional challenge in the U.S. based on overbreadth is basically not allowed and vagueness is very difficult. Ours allows more leeway and puts more onus on the government to prove their case.

Quoted Ohio decision where the judges were "troubled" by the lack of definition of the breed.

3. Trial Fairness

Listed his cross-examinations of police officers and animal control officers, as well as Darlene Wagner (postal worker, attack victim). Showed very well how difficult it is to pick the pit bull. Some admitted that they can't ID at all. Others picked some breeds correctly, but signficant numbers were wrong.

Broke for lunch and will return at 2:15pm.

Will post more when I get home or maybe will come back to this Internet cafe after close of day. Approx 5:00 or 6:00 Eastern - don't really know.

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May 13, 2006

Update on the Barrie Bowl-a-Thon

Brief update from Lori Gray on the Barrie Bowl-a-Thon:

Hey Guys

I did an add up, and for the rough run through, we made 5000.00 profit! Not bad at all considering we had not as many as I hoped, and it was a tough crowd. Had to roll a few people in the hallways.. LOL. People weren’t in the parting with their money mood today, however we squeaked 5 grand out of them!

The lane sponsorships sure helped!!

Will give you a more accurate report when I get some sleep, and I can see a path through my house.. we had a ton of silent auction items left over. They can go to the next event, and we only did 114.00 in sales from the merch. The pledges were quite good. Averaged 93.00 per person if I remember correctly.

Thank you to all for the successful day! Was great to see so many people out, and many new faces. Thank you SO MUCH to all who worked the trenches! We are all tired, but we certainly know how to pull together! Great job everyone!!

Well I am off to bed! Will give more details after sleep!!

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Update on the Toronto Bowl-a-Thon

Brief update from Dianne Singer on the Toronto Bowl-a-Thon:

Got home from the BAT a while ago, I am so impressed by Tammy Williams and her team! Great going, peeps!

It was an extremely well-organized event, and I think everyone left with a prize of some kind. The silent auction items were 99.9% sold.

No idea what the proceeds were, but everyone seemed to have a good time.

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Bowl-a-Thons

There will be five fundraising Bowl-A-Thons in Ontario on Saturday (today).

Details below.

Cities are Barrie, Bradford, Guelph, Ottawa, and Toronto.

You don't need to bowl. Just come, hang out, and have fun!

See http://www.doglegislationcouncilcanada.com/events.html for details.

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May 12, 2006

Court Reporting

I will be posting (or at least trying to post) to this blog from my cell phone during breaks in the court case on Monday and Tuesday.

I hope that Caveat will also be posting at http://caveat.blogware.com/

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Court Address and Room#

Court case is on May 15 and 16, 2006, starting at 10:00 am each day.

I would suggest getting there a lot earlier than 10:00 since it is first come, first serve re getting in.

Address:
Superior Court of Justice (Ontario)
361 University Avenue (at Queen Street West)
Room 4-4
Toronto

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Court Protocol

Planning to attend the hearings in Toronto? Please do yourself and Banned Aid a favour and read these important notes about protocol:

http://caveat.blogware.com/blog/_archives/2006/5/4/1932959.html

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May 08, 2006

Ontario Constitutional Challenge - May 15 and 16

Press release from Clayton Ruby on May 8 announcing the dates for the constitutional challenge.


FOR IMMEDIATE RELEASE

PRESS ADVISORY

What?: Constitutional Challenge to Ontario's Pit Bull Legislation

Where?: Superior Court of Justice, Toronto, Ontario

When?: Monday, May 15, 2006 and Tuesday, May 16, 2006, beginning at 10:00 a.m.

Why?: Because Canadians do not imprison dog owners based on vague and overbroad legislation

On August 29, 2005 new amendments to the Dog Owners' Liability Act came into effect banning the ownership of pit bulls in Ontario.

Ms Catherine Cochrane, with the support of the Banned Aid Coalition, filed an application seeking to strike down the new law as unconstitutional. Ms Cochrane is represented by Clayton Ruby.

On Monday, May 15 and Tuesday, May 16, 2006 the constitutional challenge will be heard at the Superior Court of Justice in Toronto, Ontario beginning at 10:00 a.m. Mr. Ruby will argue that the law is vague and overbroad.

FOR FURTHER INFORMATION OR IF YOU'D LIKE A COPY OF THE APPLICANT'S WRITTEN ARGUMENT THAT WILL BE BEFORE THE COURT, PLEASE CONTACT CAROLINE WAWZONEK AT RUBY & EDWARDH AT 416-964-9664

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