Court Information

Date: 2016-01-12

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Aman Sikand and Baljit Sikand

Before: Justice Mara Greene

Reasons for Judgment Released: January 12, 2016

Counsel:

• L. Solish for the Respondents
• P. Martin for the Appellants

Background

[1] On December 22, 2013 in the early morning hours, Dr. Aman Sikand's dog attacked Ms. Neelu Walia and Mr. Tenzin Thupton. On March 28, 2014, two statements under s.161 of the Provincial Offences Act were sworn seeking an order under s.4(3) of the Dog Owners' Liability Act (DOLA). On June 19, 2014 an interim control order was issued against Dr. Aman Sikand (the former owner of the dog) and his father, Mr. Baljit Sikand (the present owner of the dog). Pursuant to this Order, the dog, Blitz, was to be restrained or confined within the home of Baljit Sikand so as to prevent its escape from the property. The Order also required Blitz to be leashed and muzzled when off the Sikand's property.

[2] On January 6, 2015 Mr. Baljit Sikand and Aman Sikand attended at the Ontario Court of Justice to face the charges under the Dog Owner's Liability Act. Both Mr. Baljit Sikand and Dr. Aman Sikand admitted that the dog did in fact bite Neelu Walia. They also agreed that the court should make an Order in relation to the dog as a result of this attack. The only issue was the nature of the Order that the court should make. The prosecution sought a destruction order while both Baljit and Aman Sikand submitted that a control order should be imposed.

[3] Both parties agreed that given the admissions made, that the hearing before the court would proceed as a sentencing hearing only.

The Attack on Ms. Walia

[4] On December 22, 2013, Ms. Walia, Ms. Topiwala and a male only referred to as "Nick" or "Nav" attended at Dr. Sikand's residence. Ms. Walia testified that she did not know Dr. Sikand. It was her friend, Nick, who invited her there. Upon entering the residence, Ms. Walia noticed a large dog present and refused to enter. Instead she stepped back out into the hallway. Her friend Nick, then came back outside and tried to convince her to join the party. According to Ms. Walia, moments later, the large dog exited the residence, ran directly for her and attacked. Ms. Walia testified that the dog bit into her calf and would not let go. The dog kept her left leg in its mouth and shook it vigorously for at least 45 seconds. Ms. Walia was screaming and there was blood and tissue from her leg everywhere.

[5] Ms. Walia testified that while the dog was biting her, a security guard, Mr. Thupton, arrived and managed to pull the dog away. The dog then attacked Mr. Thupton who continued to struggle with the dog.

[6] Ms. Walia testified that after the attack, no one called for an ambulance despite her repeated requests for help. She managed to limp into the unit while Mr. Thupton was fighting the dog. She sat down in the bathroom area. At one point someone, whom she believed to be the owner of the dog, came in but he offered no assistance and made no attempt to talk to her.

[7] The ambulance arrived and Ms. Walia was taken to hospital. Ms. Walia testified that as a result of the dog attack, she lost chunks of her leg including tissue. A nurse had to come to her residence daily for three weeks to pack the wounds. During those three weeks she could not walk, was in excruciating pain and had to see numerous medical experts. Ms. Walia further testified that she continues to suffer permanent damage from this brutal attack. Her leg is permanently disfigured; she walks with a cane; has permanent nerve damage; and, is in constant pain. Ms. Walia, a lawyer, has not been able to work since the attack.

[8] In addition to the permanent physical injuries, Ms. Walia also suffered psychologically from the brutal attack. She has nightmares, is depressed and is receiving counseling. Her life will never be the same.

[9] Photographs demonstrating the severity of the attack were put into evidence.

[10] Ms. Tejal Topiwala also testified at the sentencing hearing. She is friends with Ms. Walia and attended the party at Dr. Sikand's residence with Nick and Ms. Walia. According to Ms Topiwala, upon arriving at the party she noticed that a lot of people were present but did not recognize anyone. When asked how many people were present, she testified that there appeared to be 10-15 people in the unit. When asked if it could have been as few as eight people including herself and Nick, Ms. Topiwala responded that it "felt" like more.

[11] Ms. Topiwala testified that she noticed the dog in the apartment when she first entered, but just ignored it. At first, Ms. Topiwala testified that people were coming and going from the unit and that was how the dog managed to exit the unit. It was clarified in cross-examination, however, that she was only in the unit for a minute before the attack and that the only person she actually saw leave the unit was Nick. Ms. Topiwala testified that after looking around for a minute or so, she turned to leave, saw the door was open and the dog walk out the door and attack Ms. Walia.

[12] Ms. Topiwala testified that as the dog ran towards Ms. Walia, she heard Ms. Walia say to their friend, Nav, "Can you keep the dog away from me" as she stepped back away from the dog. The dog then attacked. It took a few seconds for Ms. Topiwala to realize what was going on. Ms. Topiwala then ran into the unit to find the owner. No one at the party seemed to know who owned of the dog.

[13] According to Ms. Topiwala, Ms. Walia was then taken into the unit. She was in a panic and blood was everywhere. Ms. Walia went to the washroom and Ms. Topiwala then asked the people around to call 911. No one reacted so Ms. Topiwala attempted to call 911 but could not get through. She then passed the phone to Ms. Walia so that she could call 911.

[14] While Ms. Walia was in the washroom, Ms. Topiwala saw the owner of the dog hovering near the bathroom area. At first Ms. Topiwala testified that she did not speak to the owner. Later in her evidence she testified that the owner provided the address to the unit while she was speaking to the 911 operator.

[15] After Ms. Walia was tended to by the paramedics, Ms. Topiwala walked into the hallway and saw pieces of Ms. Walia's calf flesh everywhere.

[16] Tenzin Thupten was also present during the attack and testified at the sentencing hearing. According to Mr. Thupten, he was working security that night at Dr. Sikand's condominium building when he heard screaming and loud noise and laughing from outside of Dr. Sikand's townhouse. As it was his job to make sure residents were not disturbed, he attended to the area to see what was happing. Upon arriving outside Dr. Sikand's residence, Mr. Thupten testified that he saw Ms. Walia standing in the hallway with a male. He made no reference to anyone else being in the hallway or coming and going from the unit. According to Mr. Thupton, Ms. Walia appeared reluctant to enter the unit and her male friend kept trying to convince her to go inside. Mr. Thupten instructed both Ms. Walia and the male to quiet down. As he was telling them to be quiet, a large English Bulldog came out. Ms. Walia seemed scared of the dog and started to circle her male friend. The dog then bit her calf. At first, Mr. Thupton thought the dog was just playing, but then Ms. Walia started to scream for help. At that point, Mr. Thupton tried to pull the dog away from her. He started to hit the dog. The dog responded by letting go of Ms. Walia's leg and attacking Mr. Thupton instead. Mr. Thupten threw some kicks and punches to the dog and then ran outside. The dog followed. Mr. Thupten then slipped on the ice in the middle of the road. The dog came at him while Mr. Thupten was on the ground. Mr. Thupten punched and kicked at the dog to get it to stop the attack. At this point in time Dr. Sikand came outside and pulled the dog away. Mr. Thupten then called 911. It was Mr. Thupten's opinion that Dr. Sikand seemed shocked when he pulled his dog away.

[17] As a result of the attack, Mr. Thupten sustained cuts to his fingers, bite marks on his hand, leg and calves. As a result of these injuries he received a tetanus shot and was in pain for approximately one week.

[18] P.C. Vidot also testified at the sentencing hearing. He attended at the scene and took photographs of the victim's injuries and of the tissue, blood and skin from Ms. Wallia found in the hallway where the attack took place. P.C. Vidot testified that he has attended a number of dog attacks and this was the worse one he had ever seen.

[19] Dr. Sikand testified at the sentencing hearing. According to Dr. Sikand, on December 22, 2013, he invited some friends to come over after having attended an event at a local bar. Dr. Sikand and approximately five of his friends returned to his unit at 2:00am. Dr. Sikand denied that there were upwards of 10 to 15 people in his home. Upon returning home, Blitz was in the family room. According to Dr. Sikand, some of the women who came to his place started to play with Blitz.

[20] Dr. Sikand testified that no one knocked on the door that night. Usually if someone knocked on the door, Dr. Sikand would answer the door and tell Blitz to stay because sometimes he barks when people knock on the door. Dr. Sikand further testified that he did not know Ms. Walia or Ms. Topiwala nor did he invite them into his home. He also did not know how they happened to come to his apartment. Dr. Sikand testified that while he knew Nick as he lived in the same complex, he did not invite Nick over.

[21] Dr. Sikand also testified that he was not in the room when the attack occurred. He had gone up to the second floor of his unit to use the washroom. Dr. Sikand testified that he heard some yelling as he walked up the stairs, but yelling at night is not unusual for his neighbourhood so he ignored it. While in the washroom, it became louder so he went downstairs and saw that the door to his unit was open. Ms. Walia was already in his washroom and his dog was missing.

[22] Dr. Sikand did not know what had happened so the first thing he did upon seeing Ms. Walia was ask her what had taken place. He was then told that his dog bit Ms. Walia. Dr. Sikand testified that he then advised Ms Walia that he was a doctor and asked to take a look but she yelled at him and did not want him near her. That is when Dr. Sikand turned his mind to the fact that his dog was missing. Dr. Sikand went outside and saw his dog and called him back. The dog returned and Dr. Sikand then asked one of the women in the house to hold him. He then returned to the house to check on Ms. Walia but she did not want his assistance. In cross-examination, Dr. Sikand was asked why he had not called 911. Dr. Sikand explained that this had already been done by the time he came down the stairs. Dr. Sikand testified that he did not do a thorough check on his dog at that moment, because he looked unharmed. While he did have blood on him, he assumed the blood belonged to Ms. Walia because his dog had just attacked her.

[23] After the attack, Dr. Sikand was able to see a video recording of what took place. According to Dr. Sikand, there is a video camera in the hallway of the building that captured the event. The tape remained in the hands of the condominium owners and was never played in court. Defence had asked for it by way of disclosure but the prosecutor at trial advised that it was not part of the prosecution's case so they did not have to provide it. The prosecutor also stated that the video was not in his possession. Dr. Sikand testified that on this video he saw what he believed to be his dog being provoked prior to the attack. He was not permitted to provide any addiotinal information about the foundation for his belief as the video was not in court.

The Dog and His Owners

[24] All three prosecution witnesses were asked by the prosecutor what should happen to the dog. Ms. Walia testified that the dog should be destroyed as it was her opinion that the dog was very dangerous. Ms. Topiwala testified that she wanted to make sure public were protected. Mr. Thupten testified that he did not know the dog very well, but thought that proper supervision was the answer. He was of the opinion that the dog was a danger to the public if not properly supervised. Mr. Thupton had seen the dog one or two times prior to this incident. During these brief interactions he noticed nothing unusual about the dog.

[25] Dr. Sikand testified that at the time of the attack on Ms. Walia, he had owned his dog, Blitz, for seventeen months. The dog was eight weeks old when he brought him home. Dr. Sikand testified that he has always had dogs and loves them. Prior to purchasing Blitz, Dr. Sikand did some research on this particular breed of dog and also met Blitz's parents.

[26] Once he purchased Blitz, Dr. Sikand reviewed an on-line training manual and trained his dog. He also took him to the dog park and had him interact with other dogs. During the course of his ownership of Blitz, Dr. Sikand never saw Blitz behave inappropriately with other animals or humans. Blitz was always friendly and playful and he saw no signs of aggression by him until December 22, 2013.

[27] At the time of the attack, Blitz was two feet tall and weighed approximately 70 pounds.

[28] Dr. Sikand further testified that when people came over, he always told them that he had a dog. If this was a problem then either the guests would leave or Dr. Sikand would take Blitz upstairs.

[29] At the time of trial, Blitz no longer lived with Dr. Sikand. A week after the attack, the dog was moved to Dr. Sikand's parents' house in Mississauga as Dr. Sikand was not allowed to keep the dog in the building. Dr. Sikand has subsequently moved to London, Ontario for work. He was expected to return to Toronto in July 2015. He did not yet have a residence in Toronto but, if permitted wanted his dog to live with him.

[30] The house where Blitz lived with Mr. Sikand and his wife in the year and four months following the attack and before the sentence was imposed, is 4500 square feet and has a back yard. Mr. Sikand testified that during the sixteen months that he had the dog, Blitz behaved well and posed no problems. During the first six months, Mr. Sikand did not use a muzzle when he took Blitz out for walks as he did not see this as being necessary. He did, however, take care to make sure that Blitz was always on a leash. Moreover, when someone unknown to Blitz came over they would also put Blitz in a separate room. In July of 2014 a court order was imposed requiring a muzzle and that Blitz be restrained in the house so that he could not escape. Mr. Sikand testified that he complied with this Order.

[31] Mr. Sikand also testified that Blitz is not the first dog that he has cared for. Prior to having Blitz, Mr. Sikand owned another dog. It was a German Sheppard mixed with a Rottweiler. Mr. Banjit Sikand described Blitz as a loving and friendly dog. Mr. Sikand had taken Blitz on walks and to the park, to the vet and to the groomers. On every occasion Blitz behaved appropriately. Mr. Sikand has never seen Blitz attack another dog.

[32] Both Dr. Sikand and Mr. Sikand testified that they would abide by any orders imposed by the court. It was their opinion, however, that a muzzle order was not necessary. Dr. Sikand also testified that was prepared to take the extra precaution of putting Blitz in a separate room when people came over and agreed to make sure that Blitz is tied in the residence so could not escape.

The Assessment of Blitz

[33] On the first day of trial, Dr. Sikand testified that he and his family had the dog assessed, albeit a year after the incident and that they had set up some additional training for the dog. As the trial progressed it became clear that it was Dr. Sikand's parents who had actually addressed the training and assessment of Blitz.

[34] Mr. Sikand testified that between seven to ten days after the attack, he took Blitz to the vet and discussed the attack. In response to Mr. Sikand's request for assistance, the vet recommended a man named Tommy who could assist with training Blitz. Mr. Sikand did not call Tommy until many months after the event. It is unknown when Mr. Sikand first called Tommy. Mr. Sikand also attended the local pet store to see if they had any names of trainers. They did not.

[35] Finally, after a substantial delay, Mr. Sikand contacted Tommy. According to Mr. Sikand Tommy attended at his residence and met with Blitz to conduct an assessment. Tommy advised that Blitz was fine. He also provided Mr. Sikand with some tips he could use when strangers attended at the residence. Later, in preparation for trial, Mr. Sikand asked Tommy for a report. On the first day of trial, counsel for Mr. Sikand advised that the author of the report was not able to testify on that date but could come on a subsequent date if the matter was adjourned. The sentencing hearing proceeded but did not complete by the end of the day. The matter was adjourned for three months in order to allow for Mr. Sikand to provide notice to the prosecution of the expert report.

[36] Mr. Sikand did in fact receive a report from Tommy. This report, however, was not on letterhead nor did Tommy appear to have any university degrees to establish his credentials as a trainer. Concerned about the impact of this on the sentencing hearing, after the first trial date, steps were taken to retain a new expert. A firm that specialises in training army and police dogs was retained. They met with Blitz and Mr. Sikand on five occasions. Dr. Sikand only attended one of the sessions. According to Mr. Sikand the staff at the new company mostly worked with Blitz while he watched. A second report was prepared but the author of the report could not attend court on the second trial date. The Justice of the Peace refused to grant an adjournment for the author to attend and refused to enter the report into evidence in the absence of the author being present to testify. As a result, the sentencing judge did not review any of the results of the two assessments.

[37] No application brought on appeal to admit either of the reports as fresh evidence.

Reasons for Sentence

[38] In her reasons for sentence, the Justice of the Peace properly identified the factors that the court must consider and that the prosecution has the burden to establish that a destruction order is the appropriate order.

[39] The Justice of the Peace held that Blitz is highly unpredictable and that "there is no telling when his ferocious aggression may surface again". She further held that this finding alone was insufficient to order the destruction of Blitz. The Justice of the Peace held that she must also consider whether the owners "are hyper-vigilant and highly responsive to the safety of the public in preventing future attacks". The Justice of the Peace went on to state that she was not satisfied that he owners have these attributes and therefore ordered the destruction of the dog.

[40] The Justice of the Peace considered the factors listed under section 4(6) of DOLA. She noted how ferocious the attacks were and that the attacks were unprovoked. In relation to the prior and post conduct of the dog, the Justice of the Peace stated that she only had the words of the two defendants on this point and they did not have the expertise to speak of the dog's tendency to be aggressive. Moreover, despite the absence of any evidence to contradict Mr. and Dr. Sikands' evidence that they had never witnessed Blitz act aggressively and that they had personally witnessed Blitz playing with other dogs and humans, the Justice of the Peace noted that it would be difficult for the prosecution to call evidence to contradict this leading her to place little weight on the Sikands' evidence on this point.

[41] The Justice of the Peace further held that the absence of aggression before and after the attack in light of the fact that there is no explanation for the attack, confirmed that Blitz is unpredictable and a risk. She stated "Blitz is like a ticking time bomb. No one can predict when it will go off or why". The Justice of the Peace further stated that "no one can say with any degree of certainty that Blitz would never attack again".

[42] The Justice of the Peace also listed a number of reasons for finding that the Sikands will not be highly vigilant and responsible owners. She noted the following:

a) that they failed to take steps prior to the attack to ensure dog could not escape the residence;

b) the Sikands failed to take immediate steps after the attack to address the problem other than keeping Blitz on a leash and placing him in the den when visitors were over;

c) the retraining and assessment only took place in preparation for litigation as opposed to any real interest by the owners to ensure that Blitz was properly trained and safe;

d) the training of Blitz did not involve the active participation of the owners making it the wrong kind of training;

e) the owners took no steps to neuter the dog even though this is an accepted method of curbing aggression;

f) while there is no evidence that the interim order was breached, less weight could be attached to this because there was no practical way for the prosecution to challenge this evidence; and,

g) the defendants' own belief that Blitz is not aggressive and that this belief has led them to do nothing to take precautions about the dog.

[43] The Appellant raises the following grounds of appeal:

a) that the Justice of the Peace erred in finding that Blitz is a violent and unpredictable dog;

b) that the Justice of the Peace erred in failing to take into account the absence of medical evidence;

c) that the Justice of the Peace err in applying the wrong standard of proof;

d) that the Justice of the Peace erred by relying on factors not in evidence when she concluded that the owners would not take proper steps to ensure the safety of the public if a control order was put in place?

[44] The Appellant further argued that the above errors resulted in the Justice of the Peace to imposing a demonstrably unfit sentence.

[45] The Respondent argued that the Justice of the Peace made no error in law and the sentence imposed was fit.

The Relevant Provisions and the Nature of the Appeal

[46] Counsel for the appellant argued that as this is an appeal against an order under the Dog Owners' Liability Act, section 120 of the Provincial Offences Act applies. Counsel for the respondent argued that as the appellants conceded that the dog, Blitz, attacked Ms. Walia, the appeal before the Court is a sentence appeal and therefore section 122 of the Provincial Offences Act is the relevant provision.

[47] Proceedings under DOLA are governed by Part IX of the Provincial Offences Act (POA). Moreover, the Dog Owner's Liability Act does not include any provisions relating to appeals. Therefore, pursuant to section 161 of the POA, proceedings under this act, including appellate proceedings are governed by those procedures outlined in Part III of the POA with any necessary modifications.

[48] In R. v. Solomon, 2005 ONCJ 353, Justice Kukurin held that proceedings addressing what Order should be made once a justice has concluded that a dog has committed one of the acts listed in Section 4(1) of DOLA are akin to sentencing proceedings and as such section 122 of the POA is the relevant provision. I agree with this analysis. As liability was conceded in the case at bar, the only issue was what sentence ought to be imposed by the court where two options were available i) a control order or ii) a destruction order.

[49] With this is mind I now turn to the relevant legislation.

[50] Section 4(1) of DOLA states:

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).

[51] Paragraph 4(6) provides guidance as to what considerations are relevant in making an order under 4(1) of DOLA. Section 4(6) states:

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).

Analysis

1. Standard of Review

[52] It is well recognized that a reviewing court should only interfere with sentence if there is an error in principle or if the sentence imposed is demonstrably unfit (see R. v. Sarnia Golf & Curling Club Ltd., [2004] O.J. No. 3392 and R. v. Yapput, 2004 ONCJ 318). The test is not whether the appellate court would have imposed a different sentence. Instead, the court must give substantial deference to the sentencing judge and only interfere where there is a demonstrated error in principle or where the sentence is demonstrably unfit.

[53] It is also well accepted that reviewing judges are not to interfere with findings of fact unless there is a complete misapprehension of the evidence by the sentencing judge. The sentencing Justice, having heard the evidence first hand and seeing the manner in which the witness testified is in a far better position to assess the credibility of the witnesses.

2. Did the Honourable Justice of the Peace Err in Finding that Blitz is a Violent and Unpredictable Dog?

[54] The sentencing Justice made a clear finding that Blitz was a violent and unpredictable dog and as such, a control Order could only be made if those responsible for Blitz were highly vigilant owners. She reached this conclusion for two reasons: firstly, the evidence that Blitz had otherwise never engaged in violent or aggressive behaviour was of little weight and secondly, given the unprovoked nature of the attack, the prior and post offence good conduct confirmed that Blitz was unpredictable.

[55] The Appellant argued that in reaching these conclusions the sentencing justice made two errors including (i) that she relied on impermissible factors in rejecting the appellants' evidence about Blitz's temperament; and, (ii) that she improperly concluded that Blitz's otherwise good behaviour made Blitz more dangerous.

[56] The Respondent argued that the Justice of the Peace's finding of unpredictability and violence was well founded on the record before her. The Justice of the Peace found the attack on December 22, 2013 was unprovoked. No explanation for the dog's conduct was ever put forward. As it was unknown what provoked the dog on December 22, 2013, the fact that the dog had otherwise been well behaved was of no moment. The dog having attacked someone without reason can fairly be viewed as unpredictable and violent.

(i) The Justice of the Peace's Rejection of the Owners' Evidence

[57] Dr. Sikand and Mr. Sikand both testified that in the 17 months prior to the attack on Ms. Walia, Blitz had never engaged in aggressive conduct. Both Mr. and Dr. Sikand saw Blitz in a variety of different contexts including at home, with their guests, at the dog park, on walks, at the vets and at the groomers. On all these occasions, Blitz played well with other dogs and humans. Mr. Sikand, who had the most contact with Blitz after the attack, also testified that in the sixteen months after the attack, Blitz did not show any signs of aggression. Mr. Sikand took Blitz out for walks, to the groomers and to the vet during this time frame. Mr. Sikand also saw Blitz interact with two different trainers. At no point did Blitz attack, bite or threaten anyone who engaged with him.

[58] No evidence was presented at the hearing to contradict Dr. Sikand's evidence or Mr. Sikand's evidence as it related to Blitz's temperament pre and post the attack. Moreover, neither Dr. Sikand nor Mr. Sikand was cross-examined about the veracity of their evidence on this point. There was no suggestion during cross-examination that they were lying or over-stating their observations of Blitz. The Justice of the Peace also made no reference to anything about Dr. Sikand's evidence or Mr. Sikand's evidence that would make their evidence on this point unworthy of belief. Instead, she noted that "although this evidence was not contradicted, in determining the weight to be assigned to it, the Court must be mindful that such evidence is not capable of being tested, insofar as there was no practical way for the prosecution to challenge it". The remainder of the Justice of the Peace's reasons indicate that she ultimately placed very little weight on this uncontradicted evidence. The only conclusion that can be drawn is that the sentencing Justice chose to place little weight on this uncontradicted evidence because it was not practical for the prosecution to challenge it. I agree with the appellant that this type of reasoning was improper and placed an overly high standard of proof on the appellants. While it was open for the sentencing justice to reject the evidence of the appellants, there must be a lawful basis for doing so. The fact that the prosecution may have a hard time presenting evidence to contradict the evidence of Mr. and Dr. Sikand is not, in and of itself, a proper basis to reject their evidence. This amounts to a finding that a defendant's uncorroborated evidence can never be relied upon which in my view, is wrong in law.

(ii) The Justice of the Peace's Conclusion that Blitz is Unpredictable

[59] In the case at bar, the Justice of the Peace concluded that Blitz was unpredictable and violent. In reaching this conclusion, she held that if it is believed that Blitz behaved well in the 17 months prior to the attack and in the 16 months after the attack, this just proved his unpredictability and made him even more dangerous. I agree with the appellants that in reaching this conclusion, the sentencing Justice employed improper reasoning.

[60] Section 4(6) of DOLA permits the justice hearing the case to consider a number of different factors in deciding whether or not to order the destruction of a dog. The factors are not mandatory, but merely provide a guide as to what may be relevant considerations. One of the items listed is "the dog's past and present temperament and behaviour".

[61] I agree with the appellant that the sentencing Justice erred in finding that the prior and post good behaviour of Blitz supports a finding that he is dangerous. In my view, this is an illogical conclusion. The fact that Blitz had been well behaved before and after the attack does not prove he is unpredictable. It only establishes that he has not engaged in any other aggressive conduct. I appreciate that an unprovoked attack can support the conclusion that a dog is unpredictable. I further appreciate that it is open to a sentencing Justice to conclude that the prior good character of dog is of nominal relevance where the dog has committed an unprovoked attack and there is an absence of any evidence establishing why the dog attacked. This, however, is not what the Justice of the Peace concluded in the case at bar. I agree with the Appellant's that the sentencing Justice's approach to the evidence of Blitz's temperament was flawed and is an error in law.

3. Did the Justice of the Peace Err in Failing to Take into Account that No Medical Evidence Was Presented at Trial?

[62] In my view there is no merit to this ground of appeal. There was an abundance of evidence that Ms. Walia suffered substantial injuries from this dog attack no additional evidence was necessary. Firstly, Ms. Walia testified about the injuries she suffered and their impact on her life. Secondly, her friend, Ms. Topiwala, testified about the nature of the wounds she saw that night. Thirdly, Mr. Thupton testified about the injuries that he saw and fourthly, the prosecutor filed photographs of Ms. Walia's wounds. It was open to the sentencing Justice to accept all this evidence and reach the conclusion she did about the severity of the attack without any other additional evidence.

4. Did the Justice of the Peace Err in Applying the Wrong Standard of Proof?

[63] The Justice of the Peace, in her concluding comments about the dog's nature stated, "Given my finding that Blitz is unpredictable and complex, the reality is no one can say with any degree of certainty that Blitz would never attack again".

[64] Counsel for the Appellants argued that this portion of her reasons indicates an error in the standard of proof. Counsel for the Respondent argued that when the reasons are read as a whole, the Justice of the Peace did not apply the wrong standard of proof.

[65] Reasons for judgment are not to be dissected line by line grasping at any sentence that may, by itself, appear to misstate the law. Instead, the reviewing court must consider the reasons as a whole.

[66] At the very beginning of her reasons for judgment, the Justice of the Peace properly set out the test. She stated that the court may order the destruction of the dog, or any other order, if the court is satisfied it is necessary for the protection of the public. Later in her reasons for judgment, the Justice of the Peace noted that the burden lies with the prosecution to establish that a destruction order is the appropriate order. These comments support the respondent's position that the Justice of the Peace employed the proper burden of proof.

[67] Later in her reasons when addressing the factors listed in section 4(6) of DOLA, the Justice of the Peace stated that "no one can say with any degree of certainty that Blitz would never attack again". Counsel for the respondent relies on this one comment to support his argument that the sentencing Justice employed a standard of certainty on the defence, which is not the legal standard for ordering the destruction of a dog.

[68] I agree with the appellant that the defendant need not establish to a certainty that a dog will never attack again in order to avoid a destruction order. This is not, however, what the Justice of the Peace was conveying. Section 4(6)(4) allows the court to consider the "improbability that a similar attack will be repeated". While the wording employed by the sentencing justice is unfortunate, in my view, she was merely conveying that she could not find that it was improbable that Blitz would never attack again.

[69] When I look at the Justice of the Peace's reasons as a whole I cannot say that she applied the burden of "certainty" to the ultimate issue of whether or not the dog should be destroyed. I find no error in this portion of her judgment.

5. Did the Sentencing Judge Err in Considering Facts Not in Evidence and by Failing to Consider Relevant Mitigating Evidence?

[70] The appellants pointed to a couple of factual findings made by the Justice of the Peace that were not supported by the evidence. The Respondent argued that all of the Justice of the Peace's conclusions were supported by the evidence. When I consider all the evidence presented at the hearing, I find that the sentencing Justice did err by taking into accounts facts not in evidence and that these findings had a substantial impact on her ruling.

(i) The Impact of Neutering on Aggression

[71] In the case at bar, the Justice of the Peace stated that one of the reasons for concluding that the Sikands would not take proper care in protecting the public against Blitz was because they failed to take important steps to address his aggression in the sixteen months after the attack. One of the key factors the justice of the peace focused on was their failure to have the dog neutered. The Justice of the Peace stated:

There was no serious thought ever given to neutering the dog, despite neutering being an accepted method of curbing aggression.

[72] In my view, the Justice of the Peace erred in reaching this conclusion as there was no evidence presented at trial that neutering is an accepted method of curbing aggression. Moreover, there was in fact, contradictory evidence, albeit hearsay evidence, that Mr. Sikand asked the vet about neutering and that it was not recommended.

[73] During the course of Dr. Sikand's evidence the following exchange occurred in relation to neutering:

Q: at the time of the incident, was Blitz neutered or not?

A: No, he was not

Q: so he's an intact male?

A: Yes

Q: Has he been neutered since? A: No he has not

Q: As a doctor, and maybe wieht some knowledge of animals, if you ahd an animal neutered, does it not decrease some of the male hormones that are floating through its system?

A: I'm not an expert on dogs, so I'm not sure

Q: Okay. Would not neutering have been a way of controlling this animal and any aggression that the animal may have shown in regards to hormones?

A: Like I said, he did not show any aggression prior to that event, so I'm not sure.

Q: Okay. Let's talk about since the event. You've, again, had a year with this dog. The dog is still not neutered. Is that correct? A: Yes, we did run that by our vet and he said you know, it's less painful if you do it earlier on. And, like I said, he hasn't really shown any aggression, so we decided not to go ahead with that.

Q: Not showing aggression, but we're talking about the incident that happened on December 22. I think that was an extreme amount of aggression. Could you deny that? A: No.

Q: And we have two victims, Not one individual, but two individuals that have been attacked on that day. Is that not, again, extreme aggression?

A: Yes it is

Q: So don't you think in the last 12 months you've had the dog you could have had it neutered so you could curtail that aggression, rather than just being painful for your vet?

A: So I didn't actually go and talk to my vet myself, so I don't want to talk through somebody, but my mother did. And she explained to him what happened and he didn't really recommend it. So….

[74] In submissions to the court, the prosecutor, who was not the prosecutor on appeal, acknowledged that there was no evidence before the court that neutering a dog would supress aggression. It was his position that the Justice could take judicial notice of this.

[75] There was clearly no evidence before the court that neutering Blitz would curb aggression. The question is then whether the Justice of the Peace was permitted to take judicial notice that neutering curbs aggression in dogs.

[76] Judicial notice of a fact not in evidence is an exception to the general rule that matters of fact are established by the introduction of evidence. Judges are permitted to take judicial notice of facts that are either a) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or b) are capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy (See R. v. Spence, 2005 SCC 71 and R. v. Find, 2001 SCC 32). In my view the impact of neutering on aggression in dogs is a fact that requires evidence. In my view, this is not common knowledge and I have no basis to conclude that it is in fact accurate. I therefore agree with counsel that the in relying on this assertion, the Justice of the Peace erred by relying on a fact not in evidence.

(ii) That the Dog Would Escape in the Future and Become a Nuisance to Other Tenants

[77] The appellants further argued that the sentencing Justice erred in finding that the Sikands would not take adequate steps to ensure that Blitz would not escape from his residence in the future. The Justice of the Peace stated:

Even if it is true that Blitz had never, before the incident of December 22, shown any aggression, it's a big dog. It could wander off into the common areas of the building. It could spook other residents and visitors on the premises on seeing a big dog like that unsupervised. Or it could create a nuisance by defecating or urinating. There's no evidence to show of any efforts being made, having been made by Aman Sikand to contain the dog within his unit. In fact, he said that when home, he often leaves his door unlocked. So on the night of December 22, with guests coming in and out, that made it even easier for people to wander in and out of that door, leaving it ajar, and facilitating the dog's escape.

[78] I agree with the appellant that this conclusion is not supported by the evidence.

[79] On December 22, 2013, Dr. Sikand had some friends over after a late night out. They had only been at his residence for 15 minutes when he went upstairs to use the washroom. On his evidence he had not invited anyone else over. Neither Ms. Walia nor Ms. Toipiwala spoke to or knew Dr. Sikand. They were not invited by Dr. Sikand to his residence. Both Ms. Walia and Ms. Topiwala testified that Nick invited them to attend a party at "Joshua's" residence. Dr. Sikand is not Joshua, though there is evidence that Dr. Sikand had a friend named Joshua over that night. Nick did not testify at the hearing. There was therefore no evidence to contradict Dr. Sikand's testimony that he was not expecting any other guests that night. There was also no evidence to contradict his testimony that he only stepped upstairs momentarily to use the washroom nor did the Justice of the Peace make any finding against Dr. Sikand's credibility on this point or his credibility in general. If Dr. Sikand just went upstairs briefly to use the washroom, there was no reason that he would have suspected that anyone else would have come over, or that his guests, who had only been in the unit for 15 minutes, would leave so quickly and without saying good-bye. He therefore had no reason to caution anyone about the potential of Blitz escaping.

[80] There was also no evidence that any of his invited guests actually left the apartment while Dr. Sikand was upstairs. I appreciate that in-chief, Ms. Topiwala first stated that people were coming and going from the unit, but when this was explored further, it was clear that the only person Ms. Topiwala saw leave the unit was Nick. Moreover, Mr. Thupten testified that the only people outside the unit when he arrived were Nick and Ms. Walia. The dog came out seconds later. The only reasonable inference that can be drawn from this evidence is that Nick, an uninvited guest, left the door open when he went outside to convince Ms. Walia to join the party. I highlight this because it gives the context of Blitz's one and only escape from a residence.

[81] As noted by the Justice of the Peace, there was no evidence at all that Blitz had ever escaped from the residence prior to this date or that he had ever escaped from any residence at all after this date. The Justice of the Peace focused on the fact that Dr. Sikand frequently failed to lock his door as a basis to be concerned about future escapes. In my view, the fact that Dr. Sikand often chooses not to lock his door does not make it more likely that Blitz will escape. In the ordinary course of events people do not just wander into other people's homes without first knocking regardless of whether the door is locked or not. Moreover, there was no evidence that Blitz had ever escaped after December 22, 2013 or that he ever spooked other tenants or urinated and defecated in the hallways. In fact, there was direct evidence to the contrary from Mr. Sikand who testified that Blitz never went outside his residence without a leash. I appreciate that the Justice of the Peace appears to have placed no weight on this evidence, but her sole reason for rejecting Mr. Sikand's uncontradicted evidence on this point was because it was impractical for the prosecution to call evidence to the contrary. As noted above, in my view, this type of reasoning is impermissible. I therefore agree with the appellants that the Justice of the Peace erred in law and fact when she concluded that Mr. and Dr. Sikand would not take steps to ensure that Blitz would not escape from their residences.

6. Was the Sentence Demonstrably Unfit?

[82] As noted above, I have concluded that the sentencing Justice made a number of errors in her reasons for judgment. These errors, in my view, led her to conclude that Blitz was dangerous and that his owners would not be sufficiently vigilant to protect the public from him. She therefore ordered that Blitz should be destroyed. In my view, in light of the above noted errors made by the sentencing Justice, she placed too much weight on the attack and failed to take into consideration highly relevant mitigating factors including the otherwise good conduct and temperament of Blitz and the ability of Mr. Sikand to care for Blitz. When I consider all the evidence, I find that the because of the errors noted above, the Justice of the Peace imposed a demonstrably unfit sentence. The question remains, what is a fit sentence?

[83] In addressing this last issue, I am mindful of certain unfortunate realities. First of all, the sentencing Justice did not have an ideal record before her. There was apparently a video recording of the attack which was never played for the court and the court did not have the benefit of the two assessments of Blitz (albeit this latter absence of evidence only arose because of the Justice of the Peace's refusal to grant an adjournment). I am also mindful that Blitz has now been in the care of the state for nine months and I have no update about Blitz's behaviour over the past nine months, information that may very well be relevant to the issue the court must address on sentencing.

[84] In the case at bar, neither party has sought to admit fresh evidence in relation to Blitz. I have turned my mind to whether it would be appropriate for me to direct counsel to provide an update on Blitz's behaviour. While, I may very well have the jurisdiction to request additional evidence, I have concluded that it would not be appropriate to do so at this time. The dog has been in the hands of the state for nine months. It was clear from the material filed by the appellant that Blitz's general behaviour was in issue yet no attempt was made to provide fresh evidence to the court. In my view, it would be inappropriate, given the facts of this case, for the court to ask for additional evidence about Blitz at this late date. I therefore will address the issue of the appropriate sentence relying solely on the record that was before the original sentencing court and on the additional submission of counsel that Mr. Sikand is willing and able to continue to care for Blitz.

[85] Pursuant to section 4(3) of DOLA, the court must impose whatever order is necessary to protect the public from a dog that has bitten or attacked a person or domestic animal. In reaching a conclusion, the court may consider a number of different factors including but not limited to those enumerated in 4(6) of DOLA.

a) The Dog's Past and Present Temperament

[86] On all the evidence before the court, for the 17 months prior to this incident and for the 16 months following the attack on Ms. Walia, Blitz was a well behaved dog that engaged well with others. This factor, on its own, supports a control order as opposed to a destruction order.

b) The Seriousness of the Injuries Caused by the Attack

[87] There can be no doubt that this was a very serious attack. The injuries suffered are horrific and life lasting. Had Mr. Thupton not been present, or had the victim been a smaller person, the attack could have been even worse. This factor clearly supports a destruction order.

c) Unusual Contributing Circumstances Tending to Justify the Dog's Action

[88] In the case at bar, Ms. Walia did nothing to provoke the attack. Having said that, the attack occurred in very specific circumstances that do provide a context to the attack. The owner had briefly gone upstairs to the washroom when, by all accounts strangers, unknown to the dog, came into the residence without knocking and without the permission of the owner. Unexpectedly, a guest, most likely one of the uninvited guests, left the door to the unit open. Strangers remained just outside the door to the unit and were very loud, making so much noise the security guard had to come and ask them to quiet down. Blitz then left the unit and attacked one of these strangers.

[89] I note these factors not to place blame on the victims because they are not responsible for what took place and they did nothing to provoke Blitz. I only highlight these factors to note the specific situation surrounding the attack as it does provide some context for the attack. In my view, this context supports the conclusion that a control order, as long as one can be satisfied it will be obeyed, would be sufficient to protect the public against Blitz.

d) The Improbability of Another Attack

[90] This factor is difficult to assess in the absence of more detailed evidence on Blitz's overall behaviour. I note, however, that there is nothing to suggest that a well-structured control order would be insufficient to protect against another attack. This is especially true given the evidence of Mr. Sikand that while he was complying with the control Order prior to the trial date, Blitz did not attack or harm anyone. I do appreciate, however, that since Blitz did on December 22, 2013 commit an unprovoked attack and there is evidence explaining why the dog attacked Ms. Walia, this does raise the probability that absent sufficient controls, Blitz may attack again.

e) The Dog's Physical Potential for Inflicting Harm

[91] Blitz is a relatively large dog. He is 2 feet tall and weighs 70 pounds. It is clear, from the attack on Ms. Walia, that he has a strong bite. It is reasonable to conclude that his potential for inflicting harm is large. This factor alone supports a destruction order.

f) Precautions Taken by the Owner to Preclude Similar Attacks in the Future

[92] In the case at bar, the Justice of the Peace concluded that Dr. Sikand would not take adequate precautions to preclude a similar attack in the future. To that end she pointed out that Dr. Sikand believed his dog was provoked on December 22, 2013, refused to consider the possibility that his dog needed monitoring, did not take any steps on his own to protect the public from Blitz and did not participate in any of the assessments or training of Blitz. In light of these findings of fact, which I have no basis to interfere with, while I may not have reached the same conclusion, I cannot find that this conclusion is in error.

[93] I do find that the Justice of the Peace erred in making a similar finding against Mr. Sikand. In my view, the evidence, when properly considered, supports a finding that Mr. Sikand will take all precautions necessary to protect the public from Blitz. To that end I note that within ten days of the attack, Mr. Sikand took Blitz to the vet and sought advice. I appreciate that it took almost a year for Mr. Sikand to actually hire a trainer; he nonetheless did eventually hire a trainer and was present during the training session. I further note that upon taking ownership over Blitz some seven to ten days after the attack, Mr. Sikand made sure that Blitz was never out without a leash and did not take him to off leash dog parks. Mr. Siaknd also made sure that Blitz was locked up in a room when guests came over thereby protecting his guests and ensuring that Blitz will not escape.

[94] I further note that Mr. Sikand testified that once the Court imposed additional restraint conditions, Mr. Sikand complied with the additional conditions. There was no evidence to contradict his evidence on this point and the sentencing judge provided no lawful basis to reject Mr. Sikand's evidence on this point. In my view, all this evidence supports a finding that Mr. Sikand did take precautions against similar attacks in the future, will continue to take all necessary precautions and that the precautions taken adequately protect the public.

[95] Finally, I note that Blitz is not the first dog Mr. Sikand has owned. There is no suggestion that Mr. Sikand has been negligent in his responsibilities with his previous dog.

[96] When I consider all this evidence, I am satisfied that the destruction order imposed by the sentencing Justice failed to consider key mitigating evidence and was demonstrably unfit. In my view, a very strict control Order ought to be imposed instead. I appreciate that the attack in the case at bar was very serious and that Ms. Walia has suffered and continues to suffer tremendously. In my view, however, the risk that Blitz poses to the public as a result of this attack can be addressed by proper care and attention from his owner. I am satisfied that Mr. Sikand will provide that proper care and attention and therefore am satisfied that with the proper control Order, Blitz's destruction is not necessary to protect the public.

Disposition

[97] The destruction Order will therefore be vacated. Instead, pursuant to section 4(3)(b) of the DOLA, a control order with the following terms will be imposed:

a) that Blitz reside with Mr. Baljit Sikand and that ownership not be transferred without prior approval of the court;

b) that at all times the owner of the dog shall ensure that the dog is restrained or confined within the owner's premise so as to prevent the dog's release or escape from the property;

c) that warning signs be posted on the residence advising those attending that a dog is present;

d) that at all times while the dog is off the owner's property, the owner shall ensure that the dog is under leash control; and,

e) that at all times while the dog is off the owner's property the owner shall ensure that the dog is muzzled.

Released: January 12, 2016

Justice Mara Greene