by Dr. Kevin Boileau

In Santics v. Vancouver (City) Animal Control Officer, 2019 BCCA 294, The appellant’s dog was designated a dangerous dog after it seriously injured a person in a public park. The Provincial Court judge who heard the matter assumed the availability of conditional orders falling short of destruction in dangerous dog proceedings under s. 324.1 of the Vancouver Charter, but held that the lack of reasonable alternatives for the dog’s rehabilitation meant that there was no choice but to order destruction. The judge’s decision was upheld by the Supreme Court of British Columbia on appeal. The appellant appeals from the order of the Supreme Court. Held: Appeal dismissed. On the evidence, it was open to the Provincial Court judge to conclude that the appellant’s dog posed an unacceptable risk to the public and ought to be destroyed. Furthermore, on an application by an animal control officer to the Provincial Court for a destruction order pursuant to s. 324.1(10) of the Vancouver Charter or s. 49(10) of the Community Charter, the Provincial Court, upon finding that the dog is dangerous in that it poses an unacceptable risk to the public, does not have the jurisdiction to make a conditional order falling short of the dangerous dog’s destruction; the dog must be ordered to be destroyed. The Provincial Court does, however, have the jurisdiction to conclude that the dog does not pose an unacceptable risk to the public, in that the dog is not likely to kill or seriously injure in the future, whereupon the dog is to be returned to its owner.

The Honourable Mr. Justice Abrioux states as follows, in the court record:
I: INTRODUCTION
[1] This appeal marks the first opportunity for this court to substantively address the dangerous dog provisions of the Vancouver Charter, S.B.C. 1953, c. 55, and identical provisions contained in the Community Charter, S.B.C. 2003, c. 26.

[2] In an order dated January 10, 2019, the Supreme Court of British Columbia dismissed an appeal brought by the appellant, Ms. Susan Santics, from an order of the Provincial Court of British Columbia requiring the destruction of her dog. Ms. Santics appeals to this court from the order of the Supreme Court.

[3] This appeal concerns not only the fate of “Punky” — a four-year-old Australian cattle dog owned by Ms. Santics and which seriously injured a woman in a public park — but also raises questions as to the Provincial Court’s powers on an application for the destruction of a dangerous dog. In particular, it raises the question of whether s. 324.1(10) of the Vancouver Charter and s. 49(10) of the Community Charter confer jurisdiction on the Provincial Court to make conditional orders falling short of destruction.

[4] This appeal also raises the correctness of Capital Regional District v. Kuo, 2006 BCSC 1282 (“Kuo”). For 13 years, Kuo has been relied on by both the Provincial Court and the Supreme Court — the latter in its role as an appeal court — as the authority for the Provincial Court’s jurisdiction to make conditional orders falling short of destruction in dangerous dog proceedings: see, for example, Panton v. Central Okanagan (Regional District), 2016 BCSC 69.

[5] I would conclude as follows:

(a) in so far as Ms. Santics’ dog is concerned, the Supreme Court judge committed no reviewable error in dismissing the appeal from the Provincial Court’s order that the dog be destroyed;
(b) contrary to the reasoning in Kuo, once the Provincial Court has found that a dog is likely to kill or seriously injure within the meaning of the Vancouver Charter or the Community Charter, it does not have the jurisdiction to make orders — conditional or otherwise — save for that the dog in question be destroyed;
(c) notwithstanding (b), there may be circumstances in which a dog that satisfies the statutory definition of “dangerous dog” nonetheless does not pose an unacceptable risk to the public, in which event the Provincial Court must dismiss the destruction application and release the dog to its owner; and,
(d) while there may well be good policy reasons for recognizing conditional orders in certain situations, as legislation in some Canadian provinces has done, it is for the Legislature and not this court to determine the framework that ought to apply in British Columbia.
(e) I would accordingly dismiss the appeal.

There is more to the complete record, but let’s focus on the summary above, which demonstrates serious lack of due process and a serious lack of regard for the life of a dog. The Appellate decision on its face is violent and irrational because it won’t give the provincial court authority to weigh middle-ground options including rehabilitation, and transfer of custodianship out of the city. In the U.S. this could be viewed as a serious due process issue, especially because of the legal trend to recognize that domestic dogs have interests. Even the language of the vicious dog statute is suspect because one option is to “destroy” the dog. To destroy is something you do to things not living beings. Even death row human inmates are not destroyed, they are executed. Thus beyond the fact that this judge just overturned several years’ of common law, the actually vicious dog law would apparently be in conflict with the trend in the law to recognize interests if not some rights of domestic dogs.

Second, whatever harm happened was due to the negligence of this dog’s custodian and yet the Canadian court system chooses to make the dog responsible. This dog should never have been in the city. He is a cattle dog and should be out in the country. Currently he is being held in impound, which is further harm to him. The dog is a victim here, not a perpetrator.

Third, because this dog’s very life is at stake, the Appellate Court justice and the Provincial court erred in allowing the dog’s custodian to represent herself and her dog’s interest. At a very minimum this custodian should have been represented by counsel. The court should have also required that the dog be represented by separate legal counsel when his very liv eis at stake. Obviously, the court recognizes the need for some due process requirements in vicious dog adjudications. It seems logical that it would recognize the interests of the dog, especially in a capital case like this.

Fourth, the provincial court erred in not allowing the development of evidence that this dog could be rehabilitated. Now, the Appellate Court makes the specious argument that the dog has not been rehabilitated in its two years’ imprisonment, but this very imprisonment was caused by the government. Thus, the government cannot make the unpersuasive argument that the dog’s custodian took no measures to rehabilitate the dog while it has been imprisoned. There has been little to no evidence adduced about sending the dog out of the city, and into the hands of a certified sanctuary in North America, where the dog could be rehabilitated, placed in a new and safer environment away from the congestion of people in a city park. The Appellate Court has clearly erred in its conclusion that there is no evidence that the dog is an acceptable risk to the public. The Provincial Court makes the same error.

In short, this is a tragic case of A) a dog being in the wrong environment for its breed and temperament and B) needing a different sort of human custodian. Perhaps if Punky’s owner transferred his ownership to a rehabilitation expert, a sanctuary, or some other kind of certified organization that was far out of the jurisdiction and far away from the city, the court would find that this would insure an “acceptable level of risk to the public.”

If the Supreme Court of Canada hears this case, it ought to send it back to the provincial court with instructions that insure due process and prevent the further harm of the canine victim, Punky.