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Simon Shields, LLB

Dog and Cat Control Law (Ontario)
(August 2008)

Chapter 6 - Offences

  1. Overview
  2. The DOLA Offences
    (a) General
    (b) Failure to Prevent Dog from Biting, Attacking or Menacing
    (c) Pit Bull Ban
    (d) Pit Bull Muzzling and Leashing
    (e) Order Violations
  3. Prosecution Procedures
    (a) Procedural Overview
    (b) Part I Offences
    (c) Part III Offences
    (d) Legal Elements of an Offence
    (e) Pit Bull Identification Issues
    . Overview
    . Cochrane Modifications to Pit Bull Definition
    . Cochrane Modifications to Evidence Provisions

1. Overview

Like many statutory administrative regimes in Ontario, the Dog Owners Liability Act ["DOLA"] (and the Animals for Research Act ["ARA"]) create "offences" that can be prosecuted under the province's Provincial Offences Act (POA) (sometimes called "quasi-criminal" offences). In form these are much like criminal offences that can be prosecuted under the federal Criminal Code, but in significance they are somewhere between that and the more familiar "ticket" under the Highway Traffic Act (which is also prosecuted under the POA).

This chapter discusses and explains the DOLA offences, which are concerned with punishment of DOLA contraventions. As a consequence, this chapter does not address any cat-related offences.

There is also a general ARA offences provision [ARA s.21], which makes it an offence to "contravene" most mandatory provisions of the Act, and some orders made under it. However most of those violations - except the important dog and cat "pound" provisions [ARA s.20] - relate to internal pound, research facility and supply facility practices. Further, ARA charges may only be commenced by ARA inspectors [ARA s.18(1)] - and NOT by private prosecutors. As such prosecutions are extremely rare (perhaps unheard of), I do not consider them in this chapter.

Private prosecution of DOLA offences is possible, but detailed procedures for this are beyond the scope of this present Legal Guide.

Note that the same allegations that support the laying of a DOLA contravention charge are also a trigger for commencing one type of related court order proceedings for DOLA 'dog destruction or control court orders' [DOLA s.4(1.1); see Ch.4, s.4]. Such court order proceedings are largely conducted under POA Part III procedures (addressed below), and the two could be commenced together if the charge is also laid under POA Part III procedures.

Further note that in direct conjunction with any DOLA prosecution (ie. even when a 'dog destruction or control order' is NOT sought), the court may - on conviction - order compensation or restitution "in relation to the offence" (ie. normally, but not necessarily, to the victim) [DOLA s.18(3)]

2. The DOLA Offences

(a) General

DOLA sets out a general 'contravention'
provision which catches most violations of mandatory DOLA - and DOLA Regulation - duties [DOLA s.18(1)]:
An individual who contravenes any provision of this Act or the regulations or who contravenes an order made under this Act or the regulations is guilty of an offence ...
Unlike the case with most Provincial Offences Act Part I ("POA") offences [see s.3(b) below], there are no set DOLA "charge phrases" set out in POA Regulation 950/90 ["Proceedings Commenced by Certificate of Offence"]. Such charges phrases are convenient for POA officers, but also tend to circumscribe the thinking as to what types of contraventions are possible under legislation.

That said, the following appear to be the main substantive DOLA provisions that might be subject of prosecution.

(b) Failure to Prevent Dog from Biting, Attacking or Menacing

This provision reads [DOLA s.5.1]:
The owner of a dog shall exercise reasonable precautions to prevent it from,

(a) biting or attacking a person or domestic animal; or

(b) behaving in a manner that poses a menace to the safety of persons or domestic animals.
Recall that [DOLA s.1(1)]:
"owner", when used in relation to a dog, includes a person who possesses or harbours the dog and, where the owner is a minor, the person responsible for the custody of the minor;
Basically, if a dog bites, attacks or menaces a person or domestic animal due to the 'owners'' failure to "exercise reasonable precautions" (ie. negligence) then their owner has committed an offence.

R v Francis (OCJ, 1995) was an Crown appeal in a standard dog bite case under this provision as it stood at the time [then s.5, slightly different in form from the present s.5.1]. The victim was bitten by a rottweiler that the court held should have been leashed. While there was a prior history of the dog misbehaving, the court was at pains to point out that DOLA dispelled any rule that every dog was 'entitled to one bite', if such rule ever existed.

Dog bite offence charges are often combined with control order applications, and as such several more offence cases are discussed in Ch.4, s.3(b): ["Dog Destruction and Control Orders: s.4(1) Orders Against Dog-Owners Regarding Biting/Attacking/Menacing Incidents"].

(c) Pit Bull Ban

The pit bull ban is discussed at length in Ch.5: "Pit Bulls". It's main provision - which is subject to the exceptions discussed in Ch.5 (mainly the "restricted pit bull" exception for ownership) - reads [DOLA s.6]:
Except as permitted by this Act or the regulations, no person shall,

(a) own a pit bull;

(b) breed a pit bull;

(c) transfer a pit bull, whether by sale, gift or otherwise;

(d) abandon a pit bull other than to a pound operated by or on behalf of a municipality, Ontario or a designated body;

(e) allow a pit bull in his or her possession to stray;

(f) import a pit bull into Ontario; or

(g) train a pit bull for fighting.
Again, recall that [DOLA s.1(1)]:
"owner", when used in relation to a dog, includes a person who possesses or harbours the dog and, where the owner is a minor, the person responsible for the custody of the minor;
(d) Pit Bull Muzzling and Leashing

The Pit Bull Regulation [Reg 157/05] under the Dog Owners' Liability Act contains two mandatory provisions which can become subject of 'contravention' offences, namely:
  • muzzling/leashing of restricted pit bulls [s.1(1)];

  • sterilization of restricted pit bulls [s.2(1)];
What are "restricted pit bulls" (as opposed to "banned pit bulls") is explained in Ch.5.

(e) Order Violations

It is also an offence to violate any prior DOLA order.

Such orders can include the following:
  • dog destruction and control orders (interim and final) [DOLA s.4(2,3)]

  • dog ownership prohibition [DOLA s.5];

  • compensation or restitution orders made ancillary to DOLA convictions [DOLA s.18(3)]

3. Prosecution Procedures

(a) Procedural Overview

The Provincial Offences Act sets out two different methods of proceeding with DOLA offences, one under Part I of the POA and the other under Part III. Only Part III procedures allow for private prosecutions, as the Part I offences are reserved for government "provincial offence officers" who are attached to various Ministries.

(b) Part I Offences

POA Part I procedures, also called "certificate of offence" procedures, allow for the issuance of "tickets" (aka "offence notices"). Such "tickets" are similar in form to those used for Highway Traffic Act offences. If a charge is commenced using Part I procedures, then the maximum fine is $500 [POA s.12].

Provincial Offences Act, Part I: Commencement of Proceedings by Certificate of Offence

(c) Part III Offences

Part III procedures tend to be used by government enforcement agencies for more serious matters, and - as noted - can be used for private prosecutions. They are commenced by the laying of an "information", which is either preceded or followed by the issuance of a "summons" requiring attendance at court. The "information" process is much more akin to the standard criminal prosecution, although POA matters overall are considered to be less serious overall than 'true' criminal matters.

Part III penalties under DOLA for individuals are a maximum fine of $10,000 and six month's jail, or both. For corporations the maximum fine is $60,000 [DOLA s.18(1,2)].

Provincial Offences Act, Part III: Commencement of Proceedings by Information

(d) Legal Elements of an Offence

Like criminal offences, POA offences are comprised of two legal elements: the mental element (mens rea), and the act or omission (the behavioural) element (actus reus). An omission generally can satisfy the actus reus requirement if the person was under a legal duty to act under the governing statute, but failed to do so.

All of the offences listed in the Dog Owners' Liability Act are what are called "strict liability" offences. This means that the mental element (mens rea) is different from the "full" mental intent normally required for criminal offences. The strict liability standard is used for any POA matters unless the offence specifies that the defendant must have "knowingly" (or similar wording) performed the act or omission which constitutes the behavioural element of the offence (ie. this "knowingly" requirement is NOT a part of the DOLA offences) [DOLA s.18(1)].

"Strict liability" means that, on proof of the commission of the behavioural element of the offence alone, the mental element will be presumed in law - subject to the defendant proving - on a balance of probabilities (ie. more likely than not) - that they acted with "due diligence" to avoid committing the offence. These are sometimes also called "negligence" offences.

In considering any prosecution situation, readers should of course review in this Guide the subject topic of the prosecution - as well of course the original DOLA Act and Regulation provisions cited.

(e) Pit Bull Identification Issues

. Overview

Readers will be aware by this time that DOLA treats pit bulls (and dogs looking like them), quite differently from other dogs.

First, any "banned" pit bull (ie. not a restricted pit bull: see Ch.5) is subject to immediate seizure by a peace officer and delivery to a pound, as is any restricted pit bull in violation of its restrictions [ie. muzzling and leashing in public, sterilization]. Further, the fate of a dog 'believed' to be a pit bull held in a pound [see Ch.3, s.7: "Pounds, Shelters and Research: Pit Bulls in Pounds"] is markedly different from any other breed of dog.

Lastly, under the DOLA "dog control and destruction orders" provisions [see Ch.4], grounds for making any order involving a pit bull will result in a mandatory destruction order.

In any prosecution situation it would be remarkable if a dog believed to be a pit bull were not also involved in at least one of the above seizure, pound or control order situations as well. As a consequence, pit bull 'identification' issues are extremely important.

. Cochrane Modifications to Pit Bull Definition

The main pit bull identification provision is discussed in Ch.5, s.2: "Pit Bulls: Pit Bull Definition and Proof". It is ESSENTIAL to note that the statutory [DOLA s.1(1)] definition of "pit bull" has been modified as a result of the Cochrane v Ontario (Ont Sup Ct, 2007) case.

That important case is more fully discussed at this link:

Casenote: Cochrane v Ontario

The result of Cochrane is that the definition of pit bull in DOLA s.1(1)should be read NOT as set out in the statute, but as follows:
"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);
Also, the following provision should be applied in determining both specific breed status and whether a dog is "substantially similar" so as to satisfy sub-section (e):
In determining whether a dog is a pit bull within the meaning of this Act, a court may have regard to the breed standards established for Staffordshire Bull Terriers, American Staffordshire Terriers or American Pit Bull Terriers by the Canadian Kennel Club, the United Kennel Club, the American Kennel Club or the American Dog Breeders Association.

Some of these breed standards are linked in Ch.5.
. Cochrane Modifications to Evidence Provisions

Also as a result of Cochrane, DOLA s.19, which is quoted here, has been struck down on constitutional grounds (explained in the casenote):
A document purporting to be signed by a member of the College of Veterinarians of Ontario stating that a dog is a pit bull within the meaning of this Act is receivable in evidence in a prosecution for an offence under this Act as proof, in the absence of evidence to the contrary, that the dog is a pit bull for the purposes of this Act, without proof of the signature and without proof that the signatory is a member of the College.

No action or other proceeding may be instituted against a member of the College of Veterinarians of Ontario for providing, in good faith, a document described in subsection (1).

For greater certainty, this section does not remove the onus on the prosecution to prove its case beyond a reasonable doubt.
The result of this is that the identification issue is now subject to normal evidence rules, and the prosecution will have to bring witnesses on the issue so that their testimony might be assessed by the court and subject to cross-examination.

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