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Court Challenge to Bill 132 (Ontario BSL)
Author's blog ^ | May 15/06 | Steve Barker

Posted on 05/16/2006 5:11:03 AM PDT by kanawa

Court Report May 15 1:15pm Here is my summary of the morning of May 15.

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.

----------------------------------------------------------

Court Report May 15 11:00pm 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.

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.


TOPICS: Government; Pets/Animals; Society
KEYWORDS: bsl
Day 1
1 posted on 05/16/2006 5:11:06 AM PDT by kanawa
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To: MizSterious; Kokojmudd; brytlea; Darnright; Sensei Ern; sangrila; rattrap; dervish; sandalwood; ...

Ping


2 posted on 05/16/2006 5:11:48 AM PDT by kanawa
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To: kanawa; fanfan; Pikamax; Former Proud Canadian; Great Dane; Alberta's Child; headsonpikes; Ryle; ...
My daughter took the day off to attend the Hearing & ended up being permitted to sit in the empty Jury box - only the best seats in the house!

The timing may well be perfect:
a lower Court loss now should put AG Michael 'dog law' Bryant on perfect track to lose his tax dollar wasting Appeal just as the Liberals are seeking re-election in 2007!

Photobucket - Video and Image Hosting

Ever-popular Stewart's buddy Skye barks in with her view
of dog-killing McGuinty Liberal vermin:

Photobucket - Video and Image Hosting

3 posted on 05/16/2006 7:58:15 AM PDT by GMMAC (Discover Canada governed by Conservatives: www.CanadianAlly.com)
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To: kanawa

Very interesting article. Can you ping me when you post more? I'm extremely against breed-specific legislation, especially when such laws are for political show and lack any merit like this one.


4 posted on 05/16/2006 8:29:09 AM PDT by doc30 (Democrats are to morals what and Etch-A-Sketch is to Art.)
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To: GMMAC

I sure hope this ridiculous law gets the chop. Not only in Canada, but everywhere, there is need to focus on the way humans treat dogs. It is not dogs we have to fear, just other humans.


5 posted on 05/16/2006 3:28:56 PM PDT by Fair Go
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To: Fair Go

Me too. Especially since several very bad attacks by other breeds have happened there, and in other places with similar laws recently, proving once again how "safe" we all are without pit bulls.


6 posted on 05/16/2006 4:13:45 PM PDT by solosmoke
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To: solosmoke

I have been around dogs since I could walk and I have found if you treat them with love and respect they return that love and respect with interest whatever the breed.


7 posted on 05/16/2006 5:02:40 PM PDT by Fair Go
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To: doc30; GMMAC; solosmoke; Fair Go

Day 2 (From Steve's Blog)

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.




Here is my summary of the afternoon of May 16.

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




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.


8 posted on 05/17/2006 3:39:27 AM PDT by kanawa
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To: MizSterious; Kokojmudd; brytlea; Darnright; Sensei Ern; sangrila; rattrap; dervish; sandalwood; ...

Ping to Day 2


9 posted on 05/17/2006 3:51:51 AM PDT by kanawa
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To: kanawa

You can't possibly identify all dogs that share DNA with the so-called pit bull. The Australian Blue Heeler (a cattle dog) was developed in the early twentieth century from a variety of breeds including the bull terrier. However it looks nothing like a pit bull. It seems like they are citing cases involving very young children. It is a fact that children and dogs often don't mix, whatever the breed. There would be no problem dogs if there were no problem owners.


10 posted on 05/17/2006 4:04:51 AM PDT by Fair Go
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To: kanawa

Another "muscle dog" that is probably related to the pit bull.

http://www.cattledog.com.au/aboutthebreed.htm


11 posted on 05/17/2006 4:24:36 AM PDT by Fair Go
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To: Fair Go

One of my good friends has blue heeler, awesome dog. He nips girls on the butt, gotta keep them moving I guess. :-)


12 posted on 05/17/2006 8:18:47 AM PDT by rattrap
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To: doc30
Toronto Star May 19/06

No proof pit bull ban is necessary: Ruby

13 posted on 05/19/2006 8:18:46 PM PDT by kanawa
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To: kanawa
There is simply no constitutional right to own a pit bull," he said.

The law as passed is "minimally intrusive," he added.

The judge asked if sending a pit bull to dog obedience school might prevent attacks.

"There is absolutely no evidence before the court that dog obedience schools would prevent pit bulls from attacking," Doi replied.

"The evidence in our materials clearly indicates that it is not possible to determine whether a dog (will attack) today, tomorrow or some time down the road," he said.

So based on the government's own reasoning, dog bites ate entirely unpredictable so should not all dogs be banned?

14 posted on 05/20/2006 10:50:04 AM PDT by doc30 (Democrats are to morals what and Etch-A-Sketch is to Art.)
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