In City of Campbell River v. Awad, 2016 BCPC 431 (CanLII), the court considers whether remedial measures as it pertains to a dangerous dog are appropriate.
Annie is an 18 month old Pit Bull Terrier who undeniably fits the definition of a “dangerous dog” as defined pursuant to Section 49 of the Community Charter, SBC 2003, Chapter 26 as she killed a domestic dog in a public place. This hearing is an application by the Animal Control Officer for the City of Campbell River who seeks an Order that Annie be destroyed.
Once a dog has been deemed to be a “dangerous dog”, the issues to be analyzed are whether the dog should be euthanized or whether remedial measures can be implemented to address the safety concerns. The court has the jurisdictional authority to make either Order it deems just. See Capital Regional District v. Kuo 2006 BCSC 1282 (CanLII), Capital Regional District v. Kuo 2008 BCCA 478 (CanLII) (the Court of Appeal declined to hear appeal because the dog had been destroyed so the dog’s owner was not present to make submissions); Smith v. Central Okanagan (Regional District) 2013 BCSC 228 (CanLII); and, Central Okanagan (Regional District) v. Panton 2016 BCSC 69 (CanLII).
The circumstances:
“On August 1, 2016, at approximately 10:47 a.m., Mr. Fadi Awad was sitting on the front steps of his house with Annie. At the same time, Ms. Carol Strachan was walking her seven year old Chihuahua, Mya, on leash, on the opposite side of the road from Mr. Awad’s house. Mr. Awad’s friend drove into his driveway. Mr. Awad released Annie to greet the friend. Before the friend got out of his car, Annie ran through the open gate, across the street, directly towards Mya. Mr. Awad ran after her. Annie struck Ms. Strachan on her way towards Mya, causing Ms. Strachan to lose her balance. Annie then grabbed Mya in her mouth, closed her jaws, and shook her.
Mr. Awad jumped on Annie and removed Mya from her mouth. Mya died at the scene.”
The owner of the dog retained a canine expert to assess Annie and was of the opinion that Annie’s behaviour was deemed unpredictable as it was not out of fear, but rather “prey drive”. There was also evidence before the court that Annie played well with large and small dogs and lived with a cat and got along quite well. In fact, Annie and the cat often slept together. Home modifications were suggested to ensure that Annie could not escape the property and was shown that the owner of the dog made the recommended modifications to the home.
It was further recommended that Annie be muzzled when off property, and on two leases and a behavioural modification program was also required. The owner was cooperating with all recommendations, and had paid for 5 sessions with the canine behavioural expert.
The courts analysis is noted:
“It is important, given the community’s concern about an attack such as this, to explain the law that binds this court. Members of the public have a right to feel safe from dangerous dogs in the community. There are those who believe that all Pit Bulls ought to be banned. Others believe that no dog should ever be destroyed. It is incumbent on me to apply the law, and not base my decision on sentiment, or fear. I must balance the protection of the public with the property rights of the owners of dogs.
[26] In New Westminster Animal Control Officer v. Letendre 2010 BCPC 38 (CanLII), Judge Woods ordered that a Pit Bull Cross be euthanized. The dog bit a four year old girl, after she had petted him, and was walking away. The prospects for the dog’s rehabilitation were poor, and the owner was found to have been dishonest about the circumstances of the attack. Judge Woods stated the court’s duty as follows, at paragraph 61:
The cases to which I have adverted above show that s. 49(10) of the Community Charter, 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.
[27] He continued, at paragraph 66 to say:
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 … 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.
[28] Judge Woods’s case can be contrasted with City of Burnaby v. Nagra 2010 BCPC 34 (CanLII). In that case, a Pit Bull terrier pulled away from its owner, while on leash, knocked an elderly man to the ground, and killed the small white dog he had been holding. Judge Dillon reviewed the evidence before her, including evidence about the nature of Pit Bulls in general. She noted that the dog was described as a likeable and controllable animal by the Animal Control Officer who had cared for him after the incident. Judge Dillon concluded, at paragraphs 30 and 31:
It is clear on the evidence that the behaviour of dogs cannot be predicted, and pit bull terriers in specific rarely show warning signs of an impending attack. It is not maliciousness or intent on the part of the dog, but simply a prey drive which is an inherent drive that causes a pit bull terrier to seek and kill when stimulated. Once such a drive has been awakened, the evidence of Ms. Millar [a dog behaviour expert] was that there is a greater risk of re-offence; therefore past good behaviour is a factor, but it is not necessarily a weighty factor in a case such as this.
More relevant, in my view, is the fact that the Nagras are highly motivated owners who experts believe can be trained to handle and control their dog. They have accepted personal responsibility for their dog’s dangerous conduct by having apologized quickly and before the City’s legal proceedings were commenced. They apologized to [the dog’s] owner and apparently they have expressed their sorrow for their dog’s behaviour. They have taken proactive steps to build a secure pen on their property and this was done shortly after the incident. They have also taken training with [a dog trainer] and have retained another expert … to continue with a planned program of safety management.
I find and conclude that they are responsible dog owners who have shown a marked determination to do all that is right to address the public safety concerns in this case.
[29] Judge Dillon went on to make an order of destruction, but stayed it for one year, to allow the owners to comply with conditions she imposed.
[30] The law requires that I balance the public’s interest in being reasonably safe and secure from a dangerous dog, against Mr. Awad’s property interest in Annie. “Property interest” is a legalistic way to describe ownership of a dog. This description is not meant to diminish the feelings that both Mr. Awad and Mya’s owner, Ms. Strachan, have for their pets. But, as mentioned, the Court must rule on the law, not sentiment. On the other hand, I must not permit Annie to be destroyed upon the basis of any risk at all to the public.
[31] I have considered the assessment of Annie’s temperament by Ms. Plant, and, to a lesser degree, by Mr. Howland. They agree she poses a risk. But as compared with other dogs tested by Ms. Plant, and those considered by judges in other cases provided to me by counsel, Annie poses less of a risk than those that were euthanized. She also poses less of a risk, from my reading of the cases, than some of the dogs who were not ordered to be destroyed.
[32] In addition, in contrast to the owners in some of the other cases, Mr. Awad has attributes in his favour. First, he has not minimized the damage that Annie has done and has accepted full responsibility for her actions. Second, he has shown a high level of personal commitment to being a responsible dog owner. He has renovated his home to make it safe. He has visited Annie daily and has started training with Mr. Howland. He has hired Ms. Plant and his lawyer, and has come to Court to advocate for Annie. He has agreed to complete any training or behaviour modification recommended by Mr. Howland. In short, he has committed a significant amount of time and money to Annie – far beyond what many dog owners would undertake.
[33] In these circumstances, given the prognosis for Annie, the dedication of Mr. Awad, and the conditions both counsel have agreed should be in this Court’s order to protect the safety of the public, I will not make an order that Annie is to be destroyed.”
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