In the Matter of the Dog Owners' Liability Act

In the matter of the Dog Owners' Liability Act, R.S.O. 1990, c. D.16

and

in the matter of a destruction order dated 18 April 2013

against a dog owned by

Nickolas Macheras (Appellant)

W. Paul Dray (POA Prosecutor)

Terrance Green for the Appellant

Introduction

This is an appeal of a destruction order pursuant to section 4(3) of the Dog Owners' Liability Act.

Facts

The appellant's dog, Lucas, bit two children in the face, causing catastrophic injuries. One child almost lost an eye, and the other had its cheek ripped open. (Exhibits 1, 2 & 3) These injuries will also leave lasting scarring and disfigurement.

Law

The relevant provisions of the statute are as follows (with some abridgment):

Proceedings Against Owner of Dog

Section 4(1): A proceeding may be commenced in the Ontario Court of Justice against an owner of a dog if it is alleged that:

(a) the dog has bitten or attacked a person or domestic animal;

(b) the dog has behaved in a manner that poses a menace to the safety of persons or domestic animals; or

(c) the owner did not exercise reasonable precautions to prevent the dog from:

• (i) biting or attacking a person or domestic animal, or
• (ii) behaving in a manner that poses a menace to the safety of persons or domestic animals.

(2005, c. 2, s. 1(6))

Standard of Proof

Section 4(1.3): Findings of fact in a proceeding under this section shall be made on the balance of probabilities. (2005, c. 2, s. 1(6))

Final Order

Section 4(3): If, in a proceeding under subsection (1), the court finds that the dog has bitten or attacked a person or domestic animal or that the dog's behaviour is such that the dog is a menace to the safety of persons or domestic animals, and the court is satisfied that an order is necessary for the protection of the public, the court may order:

(a) that the dog be destroyed in the manner specified in the order; or

(b) that the owner of the dog take the measures specified in the order for the more effective control of the dog or for purposes of public safety.

(2000, c. 26, Sched. A, s. 6; 2005, c. 2, s. 1(8, 9))

Examples: Measures for More Effective Control

Section 4(4): Some examples of measures that may be ordered under subsection (2) or clause (3)(b) are:

1. Confining the dog to its owner's property.
2. Restraining the dog by means of a leash.
3. Restraining the dog by means of a muzzle.
4. Posting warning signs.

(2000, c. 26, Sched. A, s. 6; 2005, c. 2, s. 1(10))

Automatic Restraint Order

Section 4(5): If a dog whose destruction has been ordered under clause (3)(a) is not taken into custody immediately, the owner shall restrain the dog by means of a leash and muzzle and such other means as the court may order until the dog is taken into custody. (2000, c. 26, Sched. A, s. 6; 2005, c. 2, s. 1(11))

Considerations

Section 4(6): Except as provided by subsections (8) and (9), in exercising its powers to make an order under subsection (3), the court may take into consideration the following circumstances:

1. The dog's past and present temperament and behaviour.
2. The seriousness of the injuries caused by the biting or attack.
3. Unusual contributing circumstances tending to justify the dog's action.
4. The improbability that a similar attack will be repeated.
5. The dog's physical potential for inflicting harm.
6. Precautions taken by the owner to preclude similar attacks in the future.
7. Any other circumstances that the court considers to be relevant.

(2000, c. 26, Sched. A, s. 6; 2005, c. 2, s. 1(12))

Sterilization Requirement

Section 4(7): The owner of a dog that is subject to an order under clause (3)(b) shall ensure that the dog is neutered or spayed, as the case may be, within 30 days of the making of the order or, if the court specifies a different time period, within the time period specified by the court. (2005, c. 2, s. 1(13))

Mandatory Order Under Clause (3)(a)

Section 4(8): When, in a proceeding under this section, the court finds that the dog is a pit bull and has bitten or attacked a person or domestic animal, or has behaved in a manner that poses a menace to the safety of persons or domestic animals, the court shall make an order under clause (3)(a). (2005, c. 2, s. 1(13))

Order to Prohibit Dog Ownership

Section 5: When, in a proceeding under section 4, the court finds that the dog has bitten or attacked a person or domestic animal or that the dog's behaviour is such that the dog is a menace to the safety of persons or domestic animals, the court may make an order prohibiting the dog's owner from owning another dog during a specified period of time. (2000, c. 26, Sched. A, s. 6; 2005, c. 2, s. 1(14))

Precautions by Dog Owners

Section 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.

(2005, c. 2, s. 1(15))

Procedural History

At the hearing in the Provincial Offences Court before Her Worship C. Hartt on 18 April 2013, the appellant consented to the destruction order. He now appeals that order.

Grounds of Appeal

The appellant raises a number of grounds on his appeal:

1. He had incompetent counsel.

2. "Evidence of the accused [sic] was not properly before the court and/or was not taken into consideration."

3. Procedural fairness, in that he was not served with proper notice, did not have the benefit of Duty Counsel, and was not provided with disclosure.

4. His consent should not have been given, or relied upon, as he was confused and unaware of the consequences.

5. He has a meritorious defense.

Analysis

Preliminary Grounds

Some of these grounds are meritless and can be disposed of summarily. He claims not to have received proper notice. However, he did get legal advice (as per ground #1 in his Notice of Appeal), he did attend on the trial day and attorned to the jurisdiction of the court.

He chose to attend without his lawyer, and yet complains that he did not have the benefit of the assistance of Duty Counsel. It is not the mandate of the Legal Aid plan to provide lawyers for unrepresented litigants on their trials.

He complains about not receiving "disclosure," and yet he did not ask for any. I accept the submission by Mr. Dray that he sat with the appellant for an hour before court, discussing the merits of the application.

Further, at a point in the hearing where the Justice of the Peace asks him whether he had seen the pictures of the injured children, we see the following exchange in the transcript:

THE COURT: Have you seen the pictures?

MR. MACHERAS: Yes, I have. I was there, so.

THE COURT: All right.

MR. MACHERAS: I think about it every day. (p. 6, ll. 7–10)

He chose not to call evidence, and chose only to contest the one suggestion in the facts, namely that the dog attacked one of the children "for no reason":

THE COURT: Mr. Macheras, are those facts essentially correct as you know them?

MR. MACHERAS: There is - he said that he attacked him for no reason. I'm not saying there's ever a - you know, he didn't cross the room and approach the child. The child was - was all over him, and because we never assumed that it could - that it could occur, no one said anything, we were just watching t.v., and he was grabbing at his face and repeating his name. And I'm not going to say that's a good reason, there's never a good reason, but had we said anything to him, say, you know, you shouldn't pester him, then - then it wouldn't have occurred. (pp. 5–6)

Validity of Consent

Counsel for the appellant argues that Macheras' consent was somehow improper or invalid. This is the crux of the appeal.

However, on the basis of the record before me, I am not persuaded by that submission.

First, there is no evidence of any kind tendered by or on behalf of the appellant about his state of confusion, even though he bears the onus at this appeal. Counsel for Macheras urges me to consider that the appellant's confusion is something which may be inferred by his post-hearing conduct. This argument falls short as well. An equivalent inference is that Macheras had a change of heart, and wants another chance to revisit the issue once it had been finally determined in that court.

Even if we apply the criminal law test dealing with guilty pleas, namely that they must be informed, voluntary and unequivocal, everything in these circumstances demonstrates that the appellant's consent was indeed that.

Again, we have no affidavit or evidence from the appellant about his mind set or thought processes on the day of the hearing. From the transcript we can identify a number of circumstances relevant to the issue of consent. He is a 30-year-old man. He gets legal advice before coming to court. He sits with the prosecutor for an hour before court. There can be no confusion about the nature of the proceedings or the order being sought.

The witnesses are present and the matter is ready to proceed. The Justice of the Peace needs to adjust her day's docket, from a case-management perspective, and inquires of the appellant whether it is to proceed as a hearing on its merits. The appellant indicates to her that he consents to the order:

THE COURT: Because I - it's after eleven, I just - I see a courtroom still full of people, so I just - is this - is this something that you're in agreement with, sir?

MR. MACHERAS: Well, I've been told that it doesn't matter what I think, I won't be able to keep my dog regardless, so I have - I guess yes, I mean….

MR. DRAY: I don't think he's been told by the Crown that, based on the circumstances. The Crown has indicated that a - that a destruction order would be issued based on the facts.

THE COURT: I'm trying to determine, sir, if this is just something that the Crown is just wanting to put in just to support the position that they're taking but you're not opposed to it, or whether were having a full-blown hearing with witnesses and cross examination. That's what I'm trying to determine here.

MR. MACHERAS: No, there is no hearing. So I'm – I've consented. (pp. 2–3)

Notwithstanding the consent, the prosecutor quite properly puts the facts before the judicial officer. The merits of the application are overwhelming. The Justice of the Peace calls on Macheras to challenge or contest the facts before she renders her decision. In her comments you can see that she adverts to one of the legal principles at play, namely the "seriousness of the injuries caused by the biting or attack":

THE COURT: … But I'm sure as a concerned citizen you can appreciate that, twice…. This cannot happen a third time. (p. 6, ll. 13–14)

The appellant eloquently acknowledges it:

MR. MACHERAS: Yeah, yeah, yeah, yeah. (l. 17)

Expert Reports

During the course of presenting his appeal, counsel for the appellant produced and presented three reports (exhibits A, B & C). Apparently, after filing his appeal, Macheras had arranged for his dog to be assessed by three experts in the area of dog training and behaviour.

Cheryl Smith's report is 40 pages in length, and includes articles downloaded from the Internet, including the National Canine Research Council, articles on "Dog Bite Prevention Tips for Parents, Kids" from doggonesafe.com, and "How to Prevent Dog Bites" from wikiHow. In her opinion: "I strongly feel this dog is not an aggressive dog and does not need to be destroyed. He was simply a dog that had been pushed to the brink of his coping ability. These tragic incidents were easily preventable and highly unlikely to re-occur. A retraining programme supported by an appropriate management protocol will provide for the safety of the public."

Susan Simmons, DVM, assessed the dog twice, and in her opinion: "Lucas does not deserve to be euthanized, and is not a danger to the public. Lucas' intelligence, obedience and calm behavior would make him ideal as a therapy dog for seniors."

Capt. George Leonard, MSAR, Search and Rescue provides this opinion: "After conducting these initial assessment K-9 behaviours, I do not feel that Lucas is an aggressive dog and MSAR would train and use the dog in our Elite Service Dog program."

The point of these reports is to demonstrate that if there had been a hearing, and this evidence had been adduced, the outcome would likely have been different.

I cannot give any weight to these reports, for a number of reasons:

(a) Hearsay: First, they are hearsay.

(b) Lack of Notice: No notice was given to the Crown. Indeed, they first came to light midway through the appeal argument. If this were a criminal trial, the parties would have to comply with section 657.3 requiring ample notice. By analogy, that standard of fairness should apply in POA proceedings as well. Surely the Crown should have an equal opportunity to consider those opinions, and decide whether to challenge the expertise of the author, or otherwise rebut their opinions.

(c) Rehabilitation Focus: In every case, the opinion of the author is balanced against the need to retrain and rehabilitate the dog.

(d) Flaws in Dr. Simmons' Report: In the report of Susan Simmons, DVM, there are some serious flaws. First, her opinion is based on inaccurate information, namely that the dog merely growled at the child:

"Adults did not see whether he poked at or reached out towards Lucas. Lucas growled, Nick grabbed his collar, Lucas stopped growling and immediately sat on command. This incident was over." (page 1)

"When he growled at Travis, he was trapped. He could not easily retreat and the boy kept coming at him. This incident plus children straddling him could cause him to be more wary of children." (page 3)

Second, her bias and rhetoric demonstrates that she is being more of an animal advocate than a dispassionate opinion expert:

"Every dog needs to be protected from the situation that Lucas was in. Every child should be taught appropriate behavior around dogs." (page 4)

(e) Concerns About Returning Dog to Appellant: Finally, even Cheryl Smith is hesitant about returning the dog to the appellant:

"I do have some concerns about returning Lucas to Nickolas insofar as there seems to be a disconnect between his stated understanding of the seriousness of the situation and his actions. However, continuing direction and training from Dr. Simmons would provide a safety network until Nickolas better demonstrates his ability to protect Lucas and the public." (page 7–8)

Decision

For all the above reasons, the appeal is dismissed.

Delivered at Midland this 30th day of August, 2013.

Robert Main, OCJ