Ontario Court of Justice

Provincial Offences Court

Her Majesty the Queen v. Theda Cook

Reasons for Judgment

By His Worship Justice of the Peace Ziegler

On the 12th day of June, 2013 at Stratford, Ontario

Appearances

• T. Waugh for the Crown
• M. Fair Agent for the defendant Cook

Judgment

June 12, 2013

Reasons for Judgment

This is a charge against Theda Cook of 19 Norman Street in the City of Stratford, that she did on or about the 15th day of October 2012 at 19 Norman Street in Stratford, being the owner of a dog, did not exercise reasonable precautions to prevent the dog from biting a person contrary to section 5.1 sub(a) of the Dog Owners' Liability Act, as amended and thereby did commit an offence contrary to section 18 subsection(1) of the Dog Owners' Liability Act.

And secondly, Theda Cook at 19 Norman Street in the City of Stratford, on or about the 15th day of October 2012, being the owner of a dog, did not exercise reasonable precautions to prevent the dog from attacking a person contrary to section 5.1(a) of the Dog Owners' Liability Act and thereby did commit an offence contrary to Section 18(1) of the Dog Owners' Liability Act, as amended.

Evidence

Complainant's Account

I have the evidence of the complainant Leslie-Anne Shelley. She and her common-law husband, William Morrison, were beginning to move into 21 Norman Street in Stratford. This is attached to 19 Norman Street in Stratford where Theda Cook lived with her husband, Doug Walker.

I later had the testimony of Doug Walker that he bought the dog as a gift to his wife, Theda Cook, and gave that dog to her when the dog was approximately 6 weeks old. The dog just turned five years of age this last month or so. On October 15th, 2012 it was approximately four years old.

The properties at 19 and 21 Norman Street were the equivalent of a semi-detached property. They were serviced by only one driveway. In that driveway there was the vehicle parked by Doug Walker. Ms. Shelley says that they had made arrangements with the landlord in respect of that driveway and for the purposes of moving in needed to request Mr. Walker to move his vehicle so that they could get their belongings into the house.

On the evening of October 15th Ms. Shelley goes to the door of 19 Norman Street, knocks on the door. She said she knocked on the door and stepped back, hands in her pocket. Ms. Cook came to the door and that all of a sudden the dog comes out, jumps up on her and bites at her five or six times. She provides pictures which were taken by her common-law husband, William Morrison, on that night, possibly one day later, when the bruises showed more. They are marked as exhibits 1a through f. Now, I have these exhibits and exhibit 1a shows a bruise on the back of the right thigh. It is a deep bruise and Ms. Shelley said she had trouble walking because of the bruises. Exhibit 1b is her inner thigh. That picture was taken at the hospital. I might add that Ms. Shelley was taken to the hospital later that evening and a picture was taken at the hospital, not by the hospital but by her husband, and it shows bruising and red marks which could and, she testified, were the bite marks from the dog, not just from jumping up. They look very red and although the picture is not totally focused, the suggestion is that there is some blood there and the picture does suggest to me that there is at least some blood is coming out of at least one of those marks. 1c, more bruises on the lower right thigh and these look like bruises with two tiny marks that could also have been more specific bruises or red marks caused by the dogs teeth. 1d, back of the left thigh bruising. These are deeper bruises. This may have been a picture that was taken later as the bruises developed. They show two marks, fairly large bruises which could be the size of or slightly bigger than a golf ball in diameter. Picture 1e, upper inner thigh and Ms. Shelley testified that there could be some blood on the bruise and looking at the picture that is a possibility. And picture 1f, lower right thigh more bruising with a mark in the centre of that bruise.

Ms. Shelley testified she was wearing a winter coat, she had clothes on and these bruises occurred through her clothing. She said she was standing the whole time, she was three feet back from the entrance, she was fearful for her safety, she started to scream, and her husband came to help her.

Now in cross examination Ms. Shelley says that when Theda Cook opened the door she was standing, she was about to say something. She did not hear Ms. Cook say anything. She said she did not open the outer door but knocked on it, and then says, Ms. Cook open the door and "you opened the screen door?" and she answered, yes. Was your husband there? No, he was in our residence. The dog started barking after he had bitten me. It was a large dog to her. There is a picture of the dog in exhibits 2a and 2b. Her husband later testified that the dog was 2 or 2½ feet tall. The dog looks like a fairly large dog when standing erect. I do not mean standing on its hind legs but standing erect could be 2 or 2½ feet tall.

Ms. Shelley says the incident took five minutes or it was four or five minutes before her husband came over. She says the dog was jumping on her and biting, that these pictures show the results of that, that she had no bruises on her body prior to that, that they took about 1 to 1½ months to go away, that she still has issues because of it and takes medication because of her anxiety and is going to start psychiatry in a few months.

Witness Morrison's Account

Now Mr. Morrison says he was carrying the TV in and asked her, Shelley, to go to the door and ask Mr. Walker to move his car. He hears her screaming and hears Walker and Theda screaming. He comes out and sees the dog attacking Leslie, sees it bite her, he pushed Walker out of the way and kicks the dog. He said the dog bites at Walker too. He grabbed it by the middle of its back, it was growling and biting Leslie. It took him a couple of minutes to get the dog off of her. It took 3 to 5 minutes to get it into the house. He identifies pictures that he took as being pictures of the thigh, left and right and back thighs of his wife, Ms. Shelley.

On cross-examination he testified that both Mr. Walker and he, himself, were trying to get the dog into the house. It took minutes to get it into the house.

As a result of this happening they did not move into the residence and had their stuff out of it within three days. They called the police.

Assessment of Credibility

I will make some comments about the evidence of Ms. Shelley and Mr. Morrison. I find them both to be credible witnesses in trying to answer the questions to the best of their ability. They both held up well on cross-examination. I am satisfied that the dog was aggressive, did jump up on Ms. Shelley repeatedly and did bite her more than once.

In respect to the injuries that occurred, I think that the experience, from what I heard from Ms. Shelley, it was absolutely fearful for her. In respect to the injuries that occurred to her I would agree that they are relatively minor in nature, the bruising and the bite marks certainly did not require any stitches. If there is any blood it is a very minor amount of blood, hard to determine how much it would be but the incident in itself, the way the dog attacked, and all of this did occur through clothing, and there were people around to help her to prevent it from being more serious than it ended up being in respect of the actual physical injury.

Humane Society Investigation

I have the evidence of Jessica McCann who was the Stratford Humane Society officer at the time, currently the manager. She was the investigator of this incident. She did not attend until October 16th. The Humane Society does not come out after hours. She took a statement from Ms. Theda Cook which was entered as an exhibit. Ms. Theda Cook, of course, is the owner of the dog. Her statement is actually five pages long and there is a preliminary page in respect to cautions given to the individual making the statement. Now, I understand that Doug Walker was present while Ms. Theda Cook made this statement. It was made on October 23rd at Ms. McCann's office. Ms. McCann did testify that she did give a caution initially, verbally, read it from her notebook to Ms. Cook but did not have that present, but then when she took the written statement the cautions are in the preamble to the statement. The testimony of Ms. McCann is that Ms. Cook signed and answered "yes" in respect of the first three questions and "no" in respect to the fourth. The first three questions are, number one, "you are charged or likely to be charged under the Dog Owner's Liability Act, do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence. Do you understand the caution?" "Yes." Secondary caution, "If you have spoken to any police officer or anyone in authority regarding this matter or if any such person has spoken to you in connection with this case I want it clearly understood that I do not want it to influence you into making any statement. Do you understand the secondary caution?" Reply, "Yes." "You have the right to retain and instruct counsel without delay, you have the right to telephone any lawyer you wish, you also have the right to obtain free advice from a legal aid lawyer if you are charged with an offence you apply to the Ontario Legal Aid Plan for legal assistance with a phone number toll free, they will put you in contact with a legal aid duty counsel lawyer, for free legal aid advice right now. Do you understand?" Answer, "Yes." "Do you wish to contact a lawyer now?" "No." Signed, Theda Cook, witness by an individual and it looks like Ritner, Titner and witnessed by O'Brien. Then, below that, "you may write your statement on the following pages or it may be written by the individual officer. After which it will be read to you and you will be asked to sign it." This statement was written by Ms. McCann, it was initialled Ms. Cook and Ms. McCann. Ms. McCann asked a lot of questions about the dog, "What is your dog's colour, breed, age, sex and name?" "It's brown, black and white and he's a lab and blue heeler, he's 4½, he'll be 5 in May, he is male and his name is Buddy." "Where did you get the dog?" "Milverton Mennonite, we paid $50 for him. "Had him since a puppy?" "Yup." "Has anyone ever cared for him while you were away? No, there's only two people who can get near him, our friend and my son, Raymond. He is the protector of our home. What is your normal procedure when someone knocks on your door? Doug puts a leash on him and puts him in the spare bedroom. We can't grab for him or he'll go for us or growl. Describe the events on October 15th, 2012. It's about 2:30, quarter to eight when they came to the door bitching about something and I told him not to open the door. Buddy ran outside. I didn't see Buddy bite her. And then Doug ran out and William said that he was going to take a swing at Doug. Then she said she was going to call the cops. So Leslie opened the outside door? Yes, because she was bitching about parking. I didn't see Buddy bite her. What did you do to remove the dog from the situation? Doug came out and told them both not to move, then he grabbed Buddy and took him inside. Did you see Buddy bite William? No, he didn't bite him. I didn't see Buddy bite either one of them. Describe any incidents in the past where your dog has threatened, chased, bitten, or attacked a person or animal. He has nipped before, once when we lived on Wellington. A guy was coming on a bike and Doug told him to get off and he didn't so Buddy nipped him in the ankle. He doesn't like people on bikes, skateboards or rollerblades. It was once a time when a police officer drew a gun because they were looking for someone else and he said, take your dog inside, but he was just protecting our house. Were there any other instances? Oh, yeah, Railway Ave., a guy was on his bike and I told him to get off and he didn't and he got bite and that was last December. What steps, if any, did you take to prevent the dog from biting after the first incident? He was quarantined for ten days and then we got a muzzle for him. Doug doesn't put a muzzle on him because he can control him. Is your dog ever off-lease? No, never. When you take your dog to the Vet does he ever have to be restrained? Yes, we always have a muzzle on him because I don't trust him. Do you have anything further to add to this statement? No, but what Williams' mother said, the dog's dead, there 10 or 12 people around to verify it that was at the scene..."

So the evidence of Ms. Cook verifies or corroborates a lot of the evidence that I heard from Ms. Shelley and Mr. Morrison.

Timeline Analysis

The time factor, I might add that Ms. Theda Cook said in her testimony, initially she said it was five minutes and then she said it was three or four minutes. Certainly the time factor varies considerably between that of Mr. Walker who said ten to fifteen seconds and Ms. Cook who says three to four minutes, having initially said five and Ms. Shelley who said four or five minutes.

So I find, based on the evidence that I have reviewed so far that while the time period is not specific to three, four, or five minutes, I find that it was a number of minutes over which this occurred and that contrary to Mr. Walker's belief that it was 15 seconds, I am satisfied that his involvement came a few minutes after the incident started based both on the testimony of Ms. Cook and Ms. Shelley and on the evidence of Mr. Morrison who did say that he came in after he heard the screaming, he heard the screaming of three people he says, and came and tried to intervene. Ultimately I find that it was Mr. Walker who was able to get the dog into the house.

Defendant's Precautions

Ms. Cook and Mr. Walker testified that they have beware of dog notifications in two places, one on the door and one on their window, I believe. I find as a fact that the actions of neighbours living in a semi-detached, coming and knocking on the door and even if they opened the screen door, or storm door, as it was described by Ms. Cook, would not be unreasonable or unexpected actions of anybody coming to an individual's house to ask them to move a vehicle or to discuss with them an issue with respect to their property.

I find as a fact that Ms. Theda Cook knew or ought to have known, given the behaviour of this dog and her admission of its aggression and its territorial nature, knew or ought to have known that any individual who came to that door would be in danger if that dog was not put under control. And rather than yelling at an individual to close the outside door she should have closed the inside door before that dog got out. That would have been the reasonable way of dealing with it so that the dog did not get out because she knew that the dog was a danger, what type of danger that dog was capable of, its type of aggression, and that was the action the defendant should have used to protect her new neighbours.

I do not take any issue with how Ms. Shelley approached the neighbour to discuss the issue of the parked car in order for them to move into the semi-detached beside them.

Findings of Guilt

So based on those findings of fact and my conclusion and analysis, I am finding Ms. Cook guilty of not exercising reasonable precautions to prevent the dog from biting a person, contrary to section 5.1 sub (a) of the Dog Owners' Liability Act and similarly finding her guilty of not exercising reasonable precaution to prevent the dog from attacking a person, contrary to section 5.1 sub (a) of the Dog Owners' Liability Act.

Now this is all one incident. Both of these offences, notwithstanding a finding of guilt on both, are from the same circumstances.

Sentencing Considerations

Expert Evidence

Now I have evidence from Ms. MacDonald, and I will describe her this way, sometimes Canada is an unusual place to live in when it comes to its bureaucracy and the way it deals with recognizing the abilities of individuals. It prevents me, the way the legislation is, from finding Ms. MacDonald to be an expert through her qualifications as expect through Canadian or provincial law because you have to be a veterinary in order to take courses that qualify you as an expert in behavioural science in respect to animals. So Ms. MacDonald has taken the same courses that a veterinary would take, she has 30 years' experience with training dogs with respect to aggressive behaviour, in fact, she has experience and training to make dogs be aggressive for the military and police and training them not to be aggressive for individuals such as Ms. Cook and Mr. Walker who have dogs with aggression problems.

I am making a finding of fact that the dog Buddy has aggression problems. I want to say that I was very glad for the testimony of Anne MacDonald because it helps me analyze what should be done in this case, what should be done/what could be done, what the defendants should have done prior to this incident occurring because in turning to the Act I have to take into consideration whether or not there were other incidences that I should be aware of and considerations under subsection 4 (6), the court may take into consideration the following circumstances, "The dog's past and present temperament and behaviour".

Dog's Past and Present Temperament

Now to that end, in exhibit number 2 I have Ms. Cook acknowledging that the dog has bitten on two prior occasions, both people were on bicycles, one when Mr. Doug Walker was present and one when she was on her own on Railway Avenue. It is interesting, again, to note that both, Mr. Walker and Ms. Cook know this dog has aggression problems. They walk it in public without a muzzle aware that it is territorial or aggressive, as they put it; Ms. Cook saying she can't trust the dog and somebody using a bicycle on a sidewalk, and it may be that there is a municipal by-law against cycling on a sidewalk, that is a different issue, it is not uncommon to see, and instead of being able to control the dog or controlling the dog, they tell the cyclist to stop and get off the bike. Of course, the cyclist does not do that and is bitten in the ankle. Now that happened on two occasions prior to this, once in December 2011 and the other one I am not exactly sure if that was 2010. I think we heard evidence from Mr. Singleton with respect to an incident in 2010 and that may be it. I will go back to his evidence which I have not dealt with but is helping me come to a conclusion as to what I should do about the dog, Buddy.

Prior Incidents

Mr. Singleton is witness number four. Mr. Dan Singleton is employed at the Perth District Health Unit as a public health inspector and he has access to some health records relevant to his team and when they receive a fax from a local hospital regarding a dog bite they determine who owned the dog, then they quarantine that dog for ten days and if that dog survives that ten day quarantine it is not likely to have rabies. He had notes that he personally made and he was involved with a bite that occurred on June 21st, 2010. He had a call from the Stratford General, a person was bitten in downtown Stratford while sitting on his bicycle. They successfully found the owner, the dog was confined. It was a blue heeler cross lab and he believed the owners were Cook and Walker. He observed the dog on June 23rd. He observed it on the street with Theda Cook and the person who said he was bitten. Now, Ms. Cook said that she doesn't recall meeting Mr. Singleton, but he had taken notes, wrote this down and I am satisfied that Mr. Singleton was present on June 23rd and saw Ms. Cook in the presence of the individual who was bitten. The victim positively identified the dog as the one that bit him. And in his presence, while Ms. Cook was holding the dog on the leash, a woman walked behind Ms. Cook and the dog reared up and growled at her. So that is actually a third act of aggression by this dog in a public setting not at the home of Theda Cook and Doug Walker.

So respecting the dog's past and present temperament behaviour, my findings are that the dog has exhibited aggression and I will accept Mr. Walker's testimony to the extent that there was a break-in at their house, sounded almost like a home invasion, that the dog was traumatized during that break-in. I think they got the dog at six weeks old and it was six months that the dog had that trauma of the break-in, and that Mr. Walker himself had 12 staples put in his head because of the attack on him by another person. The dog was traumatized and became aggressive after that incident, according to Mr. Walker. I have heard of these three incidents, two on bicycles and one, a person walking by the dog. I have the evidence of Ms. Cook that she doesn't trust it, that only her, Mr. Walker and their son Raymond and a friend, I do not know who that friend was, could control the dog.

Seriousness of Injuries

I have dealt with the seriousness of the injuries caused by her attack, certainly the seriousness from a mental point of view have been greater in respect to Ms. Shelley than from a physical point of view. I would say the only reason the physical injuries were minor was because of the intervention of the people that were around and because of the winter clothing she was wearing.

Unusual Contributing Circumstances

It asks me in this section to look at unusual contributing circumstances tending to justify the dog's action and I have made a finding already that somebody coming to your door, whether it is a neighbour or whether it is someone trying to sell you something or interview you is not unusual behaviour and particularly when you are aware that the dog is aggressive, it is up to the owners if they are going to answer that door, to take adequate precautions; and they were not taking adequate precautions to prevent that dog from being aggressive.

Probability of Similar Attack

I will deal with the probability of a similar attack and repeat it later.

I am satisfied that the dog has potential for inflicting harm and that it could be serious harm. It certainly has an aggressive attitude.

Precautions Taken by Owner

I will deal now with precautions taken by the owner to preclude similar attacks in the future. It is to their credit that they have attended at a school in St. Thomas run by the company owned by Ms. MacDonald and have received a certificate for level I training. Ms. MacDonald indicated that she had made suggestions as to how you could properly control an aggressive animal, but she also made comments near the very end of her testimony in respect of this particular dog that I am going to quote. When it comes to training there are five levels and each level progresses you along and the training is to help the individual owners properly deal with an aggressive dog and to mitigate the aggression to the dog itself, but mainly to help the owners understand and be preventative with respect to the dog through equipment, through other means of interaction with the dog and each level is four weeks long, there are five levels, but she says levels four and five generally deal with off-leash, "which we would not offer to a dog like this", referring to Buddy. When asked why, she said, "because the dog was purchased at the wrong age, it was under-socialized, it has a fear of aggression combined with a territorial disposition or instinct".

Therefore, I find that this dog will always be aggressive and if I were not to order it to be euthanized it would have to be continuously be monitored, carefully handled by the owners in order to prevent further aggressive actions against innocent bystanders.

Improbability of Similar Attack

So now I am dealing with the consideration in number four, the improbability that a similar attack will be repeated. In my view it is not improbable, it is likely. The dog is aggressive. The owners have done too little, too late. They have known for years that this dog is aggressive. Their actions to prevent it from being aggressive against other people have always been too little. They warn the people instead of control the dog. They warn the people, don't open the door; they warn the people, don't ride near it; don't walk near it; don't talk to it. This dog is an aggressive dog, it is a danger to society. It is probable that if it gets free from that house it could hurt somebody. I am not satisfied that Doug Walker and Theda Cook are capable of protecting society from this dog, notwithstanding their desire to do so. I realize they have had this dog a long time and there is a very emotional commitment to the dog, but based on my findings of fact I believe the only solution is to have this dog euthanized and that is the order I am making.

Distinguishing Prior Case Law

I will add that the law that has been presented to me by defence counsel with respect to the case decided January 28, 2013 at Newmarket by Justice of the Peace Radtky is not binding on me, that the circumstances are different from the case that I am dealing with and in that case it was a one bite incident, there was no history of aggression. I will add that case is not binding on me and I will say I am not satisfied, having read the case, that I would have made that same findings as Justice of the Peace Radtky. I disagree with how that that case was decided and I am entitled to disagree with it because it is not binding on me. I also am distinguishing its facts from the case that I am dealing with.

Non-Compliance with Prior Order

There is one other thing that I did not cover and I am going to do now, which when I said it was likely that the defendants will not be able to control this dog and that it is probable that it will get loose and somebody else will get hurt. I will also point out that exhibit 2a and b is a picture from February 28, 2013 taken by the complainant, Ms. Shelley, showing that Mr. Walker is walking the dog without a muzzle even though an order was made November 13, 2012 requiring that dog to be muzzled. An excuse was given that the night before the dog's lip was cut and he didn't put the muzzle on because the dog didn't like it on. But the order is the order. It has to be complied with, it is for the protection of society and the point of the matter is cut lip or not that dog's aggression would be the same if somebody came by too close to Mr. Walker while he was walking that dog.

I do not see anything in the excuse offered in respect to walking that dog without a muzzle when it was under order, anything mitigating about it and it certainly indicates to me that these owners make decisions that are not necessarily logical or not necessarily perceptive enough to deal with the danger caused by their dog, which they do acknowledge in their own testimony, exists.

Order

I am ordering the dog to be euthanized.

Certification of Transcript

Form 2

Certification of Transcript (Subsection 5(2))

Evidence Act

I, Vicki Scott certify that this document is a true and accurate transcript of the recording of Her Majesty the Queen v. Cook in the Provincial Offences Court held at Stratford, ON taken from Recording No. 20130612_083357, on June 12, 2013 the original of which has been certified in Form 1.

July 22, 2013

Date Certified Court Reporter, CRA