The following case is an analysis of what is deemed to be a “dangerous dog” and whether a destruction order is necessary under the circumstances. The interpretation of “dangerous dog” as defined by Section s. 49(1) (a) and (c) of the Community Charter:
“dangerous dog” means a dog that
(a) has killed or seriously injured a person,
(b) has killed or seriously injured a domestic animal, while in a public place or while on private property, other than property owned or occupied by the person responsible for the dog, or
(c) an animal control officer has reasonable grounds to believe is likely to kill or seriously injure a person.
The assessment of whether a dog is deemed to be a “dangerous dog” was discussed in New Westminster Animal Control Officer v. Letendre, 2010 BCPC 38 (CanLII)
The owner, through counsel, argued that remedial measures were appropriate in thiis case in that the subject Pit Bull Cross “be neutered, evaluated by a veterinarian for possible medications, and assessed again by a different dog behaviour specialist acceptable to the New Westminster ACO. The new assessment would be conducted with a view to revisiting the hazard assessment conclusions formed by Ms. Millar and possibly finding a placement with specified conditions where the animal could be safely kept.”
The Court stated:
“I must of course give serious consideration to the alternative that amicus counsel has passionately advanced. An animal’s life hangs in the balance, after all. Ms.Salmond makes the point that the Subject Pit Bull Cross ought not to be required to pay the ultimate price for the mistakes that others have made in providing for its care, or because it displays behaviours that are characteristic of its breed lines. I have listened to and considered those arguments.”
In determining whether the dog is deemed “dangerous” the Court explains the analysis that must be undertaken:
“The cases to which I have adverted above show that s. 49(10), by necessary implication, requires that I conduct a balancing of the public’s interest in being reasonably safe and secure against the interest of Mr. Letendre, as the owner of the Subject Pit Bull Cross, in ensuring that the animal that belongs to him is not put down unnecessarily where reasonable alternatives exist. I cannot allow just any risk to trump, automatically, those latter considerations; else the balancing will be a balancing in name only. That said, I consider that it is appropriate that I give the public’s entitlement to be safe and secure from unreasonable and avoidable risk of coming to harm at the instance of this dangerous dog a heavy weighting in the analysis, given the demonstrated and proven propensity of the Subject Pit Bull Cross to inflict serious injuries, or worse, on children and other vulnerable members of the population of New Westminster without either provocation or warning.
I have read and considered all of the “conditional” order cases that have been placed before me. Inasmuch as all are distinguishable on similar grounds, I shall make specific mention of only one.
City of Burnaby v. Nagra, 2010 BCPC 34 (CanLII), 2010 BCPC 0034 is a very recent decision in which Dhillon P.C.J. found the pit bull terrier “Cujo” dangerous and made a destruction order. She did so after hearing evidence that Cujo had knocked an elderly man to the ground, injuring him, and killed the small dog he was carrying. Like the dog at issue in the case at bar, the expert evidence (given, as it happens, by Ms. Millar) was that by reason of Cujo’s prey drive “it was highly probable that Cujo would again attack and kill another small dog … [and] may seriously injure or kill a person in the future” (at para. 8).
Dhillon P.C.J. noted in her reasons that—in contrast to the case at bar—Cujo was trainable and manageable by a good, lay handler. Also in contrast to the case at bar, the owners of Cujo were highly motivated to deal effectively with the risks posed by their dog and willing and able to undertake elaborate measures, at their own expense, to assure its containment and ongoing training. Importantly, Ms. Millar made specific recommendations in this regard that the Nagras undertook to follow. On that basis the destruction order was stayed for a period of 12 months following which the respondent owners are free to reappear before Dhillon P.C.J. and tender evidence of what transpires during the 12-month trial period in support of an application to either rescind or cancel the destruction order.
It is plainly evident that the situation that the court faced in Nagra is distinguishable from that which the court faces in the case at bar. The expert evidence was supportive of remedial measures in Nagra; that is not the case here. The uniquely disturbing characteristics of the Subject Pit Bull Cross in the present case set it well apart from the attributes of Cujo, and from the attributes of all of the other dogs that were found to be “dangerous” but suitable for conditional orders in the cases I have considered. Unlike any of those dogs, the Subject Pit Bull Cross—through no fault of its own and by reason of a deadly combination of breeding and abusive experience—has been determined by an expert assessor to be essentially untrainable and, by virtue of its high prey drive, likely to attack and possibly kill any quarry—including a child or unsuspecting adult—that displays, among other things, “friendly and non-threatening postures”, signs of weakness or a fearful inclination to retreat. Ms. Millar, as the animal control officer’s expert in Nagra, was willing to recommend specific training and continuing measures for Cujo; here she declined to make such recommendations for what, essentially, is an untrainable animal with unique characteristics (canvassed above) that make the risk, especially to children, an intolerable risk and render the dog’s overall prognosis poor.
The unique temperament and attributes of the Subject Pit Bull Cross in the case at bar elevate the risk of a calamitous outcome for an unwitting victim to such a level that, in my view, it is almost inconceivable that any practically workable measures could be designed that could properly balance out the risk. Despite her valiant efforts, Ms. Salmond was unable to point to anything in the evidence before me that could persuade me that a future risk evaluation by another expert—conducted with or without intervening neutering—would generate different conclusions and recommendations than those provided by Ms. Millar. (While it is not determinative, I can see as well that the costs of any special, interim arrangements for containment, future assessment and the like that might be made in this case would be substantial and they would almost certainly fall at the feet of the Corporation of the City of New Westminster. I do not consider that it would be fair or just for me to make an order prescribing extraordinary containment and other measures, akin perhaps to those designed to restrain the notorious Hannibal Lecter in the film The Silence of the Lambs, that would require the municipal government of New Westminster to allocate resources at an extraordinary level and underwrite the costs of the same and still not necessarily eliminate the risk.)
ORDER AND DISPOSITION
I take no pleasure in making a destruction order knowing that it will bring the Subject Pit Bull Cross’s life to swift end. But the evidence before me has persuaded me, on a balance of probabilities—the applicable standard—that nothing less than a destruction order will give the men and women of New Westminster the assurance they can rightly expect the court to provide them that they and their children will not be subjected to an unreasonable risk that the Subject Pit Bull Cross may find its way into their midst and seriously injure or kill one or more of them.
Accordingly, I order that the Subject Pit Bull Cross be euthanised forthwith, by a licensed and qualified veterinarian using the most humane, painless and non-traumatic method available for that purpose.
A FINAL COMMENT
These reasons would be incomplete if I did not acknowledge my gratitude to both counsel for their thoughtful and carefully presented submissions in this distressing case. I am indebted particularly to Ms. Salmond who, as I have acknowledged, took up her brief voluntarily and in a pro bono capacity as amicus curiae. She made every effort to bring herself up to speed quickly so that she might step into counsel’s role with a minimum of disruption to the already erratic and protracted timetable of this proceeding. For those and all the rest of Ms. Salmond’s efforts I wish to record here that I am especially grateful.”
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