Tuesday, May 16, 2006

Court Report - May 15

Court Report
May 15 1:15pm
(from http://chicobandido.blogspot.com - Steve Barker DLCC)

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.

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 FairnessClayton 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.


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