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Simon Shields, LLB

Ontario Legal Guides
Since 2005

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Simon Shields,
LLB

Barrister and Solicitor
(Retired)
LSUC #37308N


simonshields@isp.com

Legal Writing and Research


Note:
In late 2008 the Ontario Court of Appeal reversed the Superior Court's ruling (considered below). The Court of Appeal essentially reinstated the DOLA in full, as it was originally legislated. An application for leave to appeal that decision to the Supreme Court of Canada was dismissed on 11 June 2009, thus confirming the Court of Appeal's ruling.

I will further consider the effect of these decision in my next revision of this Guide.
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Casenote: Cochrane v Ontario (Ont Sup Ct, 2007)

In Cochrane v Ontario [2007] OJ #1090 (QL) and [2007] OJ #2966 (QL) (Ont Sup Ct) the constitutionality of portions of the DOLA pit bull amendments was challenged.

The argument was four-fold:
1. Definition of "Pit Bull" Overbroad

This argument was that the law, which provided for imprisonment [DOLA s.18] on contravention and thus prima facie violated to Charter s.7 "liberty" interest, was overbroad under s.1 of the Charter (proportionality test) in that it captured all dogs of pit bull breed, when only some of them were violent ["overbroad"].

On this issue the court found that the evidence on pit bull temperment, though conflicting and inconclusive, established a "reasoned apprehension of harm" which. Under the required deferential approach to legislation, it then found that the law was not disproportionate to the public safety objectives sought, and dismissed the "overbroad" argument.

2. Definition of "Pit Bull" Unconstitutionally Vague

This argument was that the DOLA definition of pit bull is too vague (and thus unconstitutional under s.7 as above) to provide parties and the legal system the notice they require to comply with the law. That definition reads:

s.1(1)
In this Act,

"pit bull" includes,

(a) a pit bull terrier,
(b) a Staffordshire bull terrier,
(c) an American Staffordshire terrier,
(d) an American pit bull terrier,
(e) a dog that has an appearance and physical characteristics that are substantially similar to those of dogs referred to in any of clauses (a) to (d);

The court considered evidence that identification of dogs with specific pit bull breeds was not always possible - even DNA evidence - without knowing its specific lineage and being able to trace that through Kennel Club registrations, a position that had been taken by the Ontario Veterinary Medical Association ("OVMA"). The court concluded that while precision was not inherently possible in the task, the interpretive reference in DOLA s.1(2) to established "breed standards" for the named pit bull breeds (staffordshire bull, american staffordshire and american) provided the parties with "a basis for deliberation by the court, and standards for enforcers" such that the definition was not unconstitutionally vague.

However, the court did find that the phrases "pit bull INCLUDES" and "(a) pit bull terrier" in this definition, not being referenced in any way to known breeds, were unconstitutionally vague.

The court ordered as a constitutional remedy that the provision should be read as follows:

s.1(1)
In this Act,

"pit bull" means,

(b) a Staffordshire bull terrier,
(c) an American Staffordshire terrier,
(d) an American pit bull terrier,
(e) a dog that has an appearance and physical characteristics that are substantially similar to those of dogs referred to in any of clauses (b) to (d);

The net effect is that the definition is limited now to the specific breeds mentioned, and those that - in light of the breed standards for the specific breeds - are "substantially similar" to them.

3. Identification of "Pit Bull" by Vet Letter

The next argument was that the s.11(d) Charter presumption of innocence was offended by DOLA s.19(1), which made a veterinarian's letter attesting that a dog is a pit bull, proof of that fact absent evidence to the contrary. The court found that this provision could be interpreted fairly by allowing the defendant, if they desired, to summons the veterinarian for cross-examination.

However the provision was further objected to in that it created a mandatory presumption of a key part of the prosecution case, namely the pit bull identification. The court held that while this could be remedied by means of a defence summons to the veterinarian, this unfairly places a logistical burden on the defendant to defend against the mandatory presumption. As such the provision violated s.11(d) and was not saved under s.1 of the Charter.

The constitutional remedy granted was to strike all of DOLA s.19, as the remaining ss.19(2) and (3) made no sense in the absence of s.19(1). In the end all of s.19 was struck down.

4. Ultra Vires

Finally, it was argued that the DOLA breed identification scheme conflicted with the federal Animal Pedigree Act, which provided a scheme for identification of breeds. It is a principle of our constitutional federal-provincial division of powers that fields of law occupied legitimately by one level of government preclude the other from enacting conflicting legislation.

The court found that the purposes of the two schemes were quite different and that there was no functional conflict between them.

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