Wednesday, May 17, 2006

Court Report - 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.

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. This applies to my previous posts as well and they will be modified to note this.

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 (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.


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