Decision

Court Information

Date: August 14, 2018

Ontario Court of Justice

Central West Region

The Municipality of Halton Hills

-and-

Victoria Mary Sciberras and Robert Berry

Proceedings commenced: 23 May, 2018

Decision issued: 14 August, 2018

Appearances

Coles, S. for the prosecution

Lutes, N. for the defence

Statutes Considered or Cited

• Dog Owners Liability Act, R.S.O. 1990, c.D.16, as amended ("DOLA")
• Legislation Act, 2006, S.O. 2006, c. 21, Sched. F
• Provincial Offences Act, R.S.O. 1990, c. P.33

Cases Considered or Cited

• Cochran v. Ontario, [2007] O.J. No. 2966
• Kent v. Laveridiere, 2011 ONSC 5411
• Martineau v. Minister of National Revenue, 2004 SCC 81
• R. v. Creglia, [2018] O.J. No. 2149
• R. v. J.M., 2017 ONCJ 4
• R. v. Jordan, 2016 SCC 27
• R. v. MacIsaac, 2018 ONCA 650
• R. v. Pearson, [1960] S.J. No. 108
• R. v. Wigglesworth
• York (Regional Municipality) v. Tomovski, 2017 ONCJ 785

Decision

Order

[1] For the reasons set out below, I find that an Order is required for the respondents/defendants to these proceedings to surrender their dog, Charlie, to either the Ontario Society for the Protection of Cruelty to Animals or a rescue shelter equipped to harbour Charlie and protect other animals or humans from him. I order that David Berry and Victoria Mary Sciberras be prohibited from owning any dog for a period of three years from the date of this Order. I am leaving unaddressed at this point the issues of whether Charlie be surrendered to the OSPCA or a suitable shelter for abandoned dogs capable of safely harbouring him as well as costs for the OSPCA if that is where he ends up. I will remain seized of the matter to determine these issues if they cannot be resolved amicably.

[2] I am deeply indebted to both the Crown Prosecutor as well as counsel for the defence for their dedication to the matters at hand, for their thoughtful and fulsome representations and facta, and their patience in addressing the matters before me. The legal issues they framed are important and the outcome, while undoubtedly disappointing to the defendants, addresses important principles and protection of the public.

The Background and Story

[3] Charlie is an intact (ie. not neutered) male Rottweiler, now just over four years old. He was acquired as a pup by Robert Berry and Mary Victoria Sciberras, who are the defendants in this action.

[4] There is no dispute about the identity of the defendants, nor the date, time and location of the interaction between Charlie and either Houston, another intact male Doberman or the young person JA. There is no dispute that Charlie bit both Houston and the young person, JA, the bite to JA causing a serious injury. Finally, there is no dispute that Mr. Berry is the registered owner of Charlie, and Victoria Mary Sciberras, his fiancée, is an owner within the definition of owner under DOLA.

[5] The Town of Halton Hills seeks and order for controls to be placed on Charlie, pursuant to s.4(1) of DOLA. This arose as a result of Charlie biting another dog, named Houston, on June 8, 2016.

[6] As a result of a subsequent incident on October 31, 2016 in which Charlie bit the young person, JA, the Province also seeks an order against both Mr. Berry and Ms. Sciberras, for destruction of Charlie, pursuant to that same authority. That proceeding ran concurrently (but not joined) with the application for a control order.

The June 8, 2016 Incident

[7] In respect of the first application, the evidence establishes that on June 8th 2016, Mr. Berry was returning home from his overnight shift as a receiver. On his way home, he travelled past the local conservation area where he and his fiancée routinely take Charlie for a walk. He hoped to meet up with Ms. Sciberras before going to sleep.

[8] On arrival at the park, having noticed Ms. Sciberras' vehicle parked, Mr. Berry parked his own car and exited the vehicle.

[9] Further evidence confirms that Mr. David Walk Late was also in the park with his dog Houston. Mr. Walk Late had walked his dog on the foot trails which form part of the Bruce Trail.

[10] It is common ground that many folks walk their dogs – especially on the foot trails – with their dogs off leash. This includes Mr. Berry, Ms. Sciberras and Mr. Walk Late.

[11] Mr. Walk Late's evidence is that he had no interaction with Mr. Berry. He stated that at the time of Mr. Berry's arrival, he was on the open baseball diamond area of the part, "working" with Houston on routines and disciplines and recalls that Houston was on-leash. He agrees it was possible they had been playing with a flick stick and ball but does not recall this to be when Mr. Berry came on scene.

[12] Mr. Berry gave evidence that, believing Houston to be off leash, he approached Mr. Walk Late, that his wife was on the trails with Charlie, and that he anticipated they would leave the trails for the open park area, advised Mr. Walk Late to ensure Houston was on a leash.

[13] When Ms. Sciberras and Charlie left the trail area of the park, they came to the edge of the open park area. Charlie excitedly bounded towards Houston. Charlie engaged with Houston and ended up latching on and biting him.

[14] Mr. Walk Lake's evidence is that, once Houston was attacked by Charlie, he took defensive measures by pulling Houston by his leash to the point of lifting him off the ground and swinging him around in a circle while Charlie continued to pursue him. It is notable that Houston is also a large size male dog, whose exact size and weight are unknown. However, from the photo tendered in evidence (showing the bite wounds), Houston appears to be of a significant weight.

[15] In relation to this incident, there is controversy as to whether Houston may have been playing with a ball. At best, the evidence discloses that Mr. Walk Late would have had a "flick stick" (a device designed to toss a ball some distance and for the dog to chase after and retrieve the ball). There is no evidence that Charlie was in any way trying to get at any such ball, even if one were visible. That is to say, nothing in the evidence suggests that Charlie was actually lunging for the ball rather than Houston.

The October 31, 2016 Incident

[16] In relation to the second application, there are three perspectives on the event, however, no doubt or dispute that Charlie bit JA.

[17] In dispute is whether the light on the Sciberras/Berry home was on and where Charlie was before the bite. As between Ms. Sciberras and Mr. Berry, there is a further issue as to where each of them was before the bite.

[18] According to Mr. Berry and Ms. Sciberras, they had left treats for children on their front porch and stayed in their back yard with Charlie through the evening. They did not want Charlie to be excited by the commotion of trick or treaters.

[19] At some point, they recognized that the number of trick-or-treaters had diminished and Mr. Berry went out to the porch to collect the few remaining treats. Ms. Sciberras and Mr. Berry have different recollections as to what remained, but they both gave evidence that as the remnants of the treats were removed from the front porch, the porch light was turned off.

[20] JA was out trick or treating with his brother and a friend. His evidence is that on approach to the Berry/Scibberas house, he saw Charlie sitting on a couch, visible through a window. Ms. Sciberras' evidence is that Charlie was in the backyard; she had come into the kitchen to finalize dinner, as trick or treating was winding down, and left Charlie in the yard with Mr. Berry. Mr. Berry's evidence is that Charlie was in the house.

[21] In any event, all accounts point to Mr. Berry answering the door to welcome these late-arriving trick or treaters. JA was at the door first and got his treats. His brother and a friend were longer getting their treats, and by the time they got them, JA had made his way down the driveway almost to the road. All of a sudden, Charlie burst through Mr. Berry's legs, bounded down the driveway, and grabbed onto JA's arm. The one bite showed at least two puncture wounds (one bite involving two teeth) of uncertain depth, and required more than thirty staples to close the wound. Eventually, the doctors recommended skin grafts, and ongoing massage and physical therapy, as well as counselling.

[22] Almost immediately after the bite, Charlie sat down, and, on call from his owners, returned to the house on his own. This is similar in how he responded after the dog on dog bite.

[23] Ms. Sciberras clearly has accepted responsibility for damages flowing from the bite on JA, and Ms. Sciberras and Mr. Berry have apparently resolved any civil issues as between them and JA and his family.

Additional Incidents

[24] There were three additional incidents involving aggressive behaviour by Charlie, about which the court heard.

[25] The first in time involves Charlie as a pup. On that occasion, Ms. Sciberras describes that Charlie, in a youthful fit of exuberance, bit the fleshy part of the hand of a youngster visiting at the cottage. Although Ms. Sciberras describes the bite as causing a puncture, she also gave evidence that there was no blood and no medical treatment as a result. The child's hand was cleaned and bandaged and the child went on with planned activities uneventfully.

[26] The second incident occurred when Ms. Sciberras hired a trainer to work with Charlie. Charlie and his owners had already "successfully" or uneventfully completed "puppy training", however, Charlie had developed a pattern of barking incessantly at passersby, and lunging at windows. This became almost unbearable.

[27] Ms. Sciberras conducted some research and selected a former trainer of military dogs, hoping to instill military level discipline in Charlie. The trainer used an assistant who got down on all fours in Charlie's face and Charlie responded with aggressive growling and snarling. The trainer then physically intervened in a way that Ms. Sciberras found completely inappropriate and she cancelled any further training.

[28] The third – disputed – incident is an encounter between Charlie on Houston, both on leash, on the Bruce Trail, as reported by Mr. Walk Late. According to Mr. Walk Late, the encounter was uneventful. Mr. Berry denies that this encounter even occurred. Ms. Sciberras' evidence is that there are two other Rottweilers that frequent the park and Trail, and one bears marked similarities to Charlie. Mr. Walk Late, a veterinary technician with several years' experience with dogs, insists that his encounter was with Charlie. The apparent intent of the evidence in relation to this incident would be to indicate that Mr. Walk Late and Mr. Berry and their respective dogs had had a uneventful encounter prior to the bite in June, but more importantly, that they would and/or should have recognised each other on the day that Charlie bit Houston.

Response to the Incidents

[29] Returning to the June bite on Houston, neither Mr. Berry nor Ms. Sciberras was made aware of it, as Mr. Walk Late took his dog back to his car where he examined him; he then left to attend a veterinary clinic.

[30] Mr. Walk Lake made reports to municipal By-law personnel, who investigated, and only advised Ms. Sciberras that charges would be forthcoming near the end of June.

[31] After the report of the bite on Houston, Ms. Sciberras retained another trainer. That trainer made a number of recommendations, essentially to "err on the side of caution". Based on his recommendations, Ms. Sciberras reported she would not let people pet Charlie, not let unknown people into their home, keep him on a leash and control him at all times. She worked with that trainer twice prior to the Halloween incident, and again three time in 2017, well after the bite on JA.

[32] Ms. Sciberrras' view is that Charlie is generally well behaved, apart from his earlier incessant barking and lunging at windows, and even that has declined as he has matured. She gave evidence that she has had dogs through most of her entire life, and indicates that occasional nips are not unusual and to be expected. She clearly distinguishes what happened both with Houston and JA to be exceptional and unacceptable incidents for which she accepts full responsibility, and is remorseful. After the two incidents, they moved out of the area and now share their residence with her mother, who occupies the "front" part of the house, and they the separated, rear, part of the house. They have posted warning signs on the property regarding the presence of the dog, at both the front and side entrances; the property is fenced and has locked gates. Anyone unexpectedly calling at the house would be received by her mother who would then announce the guest, if necessary, before permitting entry.

[33] Further, her evidence is that she no longer takes Charlie outside the property for walks as she used to do routinely; only Mr. Berry walks the dog off property. She ensures Charlie is muzzled whenever he goes off property (even the short distance to the car), for trips to the vet or to the farm or other destinations.

[34] Finally, Ms. Sciberras provided a video recording of Charlie interacting with a dog at the farm. She portrayed this as an unfamiliar dog and the interactions between them could easily be described as uneventful and lacking any sense of aggression.

Evidence of the Defendants

[35] Apart from the evidence by Mr. Berry, summarized above, he echoed much of what Ms. Sciberras stated in her evidence. It is noteworthy that Mr. Berry was not in attendance for significant portions of the evidence, as a result of work obligations, and, was not in the court during the time Ms. Sciberras gave her evidence.

[36] From his evidence, it is clear that Ms. Sciberras was the lead in terms of managing Charlie. She was the decision maker in terms of acquisition, training, follow up training, daily routines and exercise, and so forth. This is not to say that he was disengaged, but clearly far less engaged than Ms. Sciberras.

[37] In spite of the similarities, there was some not insignificant inconsistency between his evidence and that of Ms. Sciberras. For example, Mr. Berry stated that the reason they remained in the yard on the Halloween night was because it was simply a nice night, rather than because Charlie had been agitated the prior year on Halloween. In addition, while Ms. Sciberras' evidence is that she was in the kitchen when JA approached the house, Mr. Berry's evidence is that he had just come into the house to get a drink and Ms. Sciberras was still in the yard.

[38] Further, in spite of Ms. Sciberras insistence that she no longer walks Charlie, Mr. Berry stated that she would walk Charlie, typically twice a day.

[39] Both Mr. Berry's and Ms. Sciberras' evidence is that there has been no incident involving Charlie biting or even acting aggressively since the Halloween incident, some eighteen months prior to this hearing. There is no evidence to the contrary.

Evidence of the Victims

[40] Both JA and his brother CA gave evidence. Both of them reported that the light at the front porch was on, CA advised that the television was on in the front room, and both advised that they could see the dog through the front window and that the dog was barking.

[41] Perhaps the one notable piece of evidence was with respect to where JA was situated when bitten. Both JA and CA gave evidence that JA received his treat(s) first and walked away from the house along the driveway. CA remained with his friend to get their treats, at which time the dog came through the door of the house, approached JA and bit him on the arm. There is no evidence to challenge their positioning at the time the bite occurred.

[42] CA's evidence is that he observed both a man and a woman at the door.

Expert Evidence

[43] Kerry Vinson was introduced and qualified as an expert witness, to give evidence on risk and behaviour of animals in relation to that risk.

[44] In September 2017, Mr. Vinson conducted an assessment of Charlie's behaviour, using an modified version of an aggression screening tool he obtained from Cornell University Animal Behaviour Clinic. His test was limited to behaviours suggestive of biting humans (and not dogs). Under cross examination, he conceded he did not think it appropriate to test for aggression toward children as he was aware that Charlie was known to have bitten a child and he did not think it ethical to expose a child to risk of bite. Under further cross examination, he conceded that there are surrogates sometimes used for testing for aggression on children, such as rag dolls, which he considers to be unequal comparisons or tests, and therefore rejects them.

[45] His assessment was conducted almost one year after the Halloween incident. His conclusion is:

I have been informed by Counsel for the owners of Charlie that no one from the Town of Halton Hills or their Animal Services has ever seen this dog in person. I find this unusual since they are requesting his destruction. Of course he did bite a person on October 31, 2016, and an argument could possibly be made that any dog who has bitten someone can present some degree of potential future danger. But if we are considering this in perspective, it is relevant to be aware that the percentage of dogs that are estimated to have bitten a human over the course of their lifetime is quite high, with some estimates running as high as 70%. Remembering that the medical reports on Charlie's incident indicate it was a single bite and not a multiple bite attack, I feel the criteria for this possible euthanasia is whether he is an imminent danger to bite someone he encounters and does not know. The behaviour assessment performed on September 23, 2017 indicated he is not, or else it would have happened during that evaluation. A likely explanation for the 2016 biting incident is the dog was in a state of abnormally heightened arousal due to an evening of being confined to an isolated area in the backyard which many noisy trick or treaters came to the front door of the house. Needless to say, this scenario should not be duplicated during future Halloweens.

[46] Mr. Vinson then sets out a list of five control recommendations, which he urges the Court to adopt.

[47] In his report, he acknowledges that the assessment was done at a "summer residence" of the owners. Other evidence suggests that this environment is relatively tranquil, compared to the urban locations where the dog bites took place or where Charlie now lives.

[48] Mr. Vinson also made reference to the Bite Scale, developed by Ian Dunbar, PhD. BVet.Med, MRCVS. This is a six degree scale that rates the severity of dog bits, based on whether skin is contacted, the depth of any penetration by the dog's teeth, and whether there were single or multiple bites.

[49] Based on his review of the medical records and photographs provided to him (from disclosure), he rates the bite to fall in the range of Level 3 or 4.

[50] Assessment at these Levels means:

Level 3: The dog is not overly dangerous but much more likely to be fearful, or rambunctious and out of control. Without treatment, other Level 3 bites may follow with a slow, albeit predictable, increase in severity, especially if the fog is stresses (frightened, cornered, manhandled, etc.). Prognosis is fair to good with owner compliance. Quickly resolve the problem.

Level 4: The dog has insufficient bite inhibition and is dangerous. Prognosis for resolution is very poor because of the difficulty and danger of trying to teach bite inhibition to an adult hard-biting dog and because absolute owner-compliance is rare. The dog is a Level 4 biters and is likely to inflict an equivalent amount of damage WHEN it bites again. I recommend that a dog is confined indoors and never taken onto public property. The dog is extremely reactive and stresses around (some) people and so walks would probably not be much fun for the dog owner anyway. Confining the dog to a fenced yard is not safe; the dog may not be able to get out but people (children) may be able to get in.

[51] According to Mr. Vinson, the principle basis for not evaluating Charlie as a Level 4 biter is due to lack of precision on whether Charlie bit to one half the depth of his teeth. This was not recorded in the medical records. It is noteworthy that Robert Denike, an officer with Halton Regional Police Service who attended at the Sciberras/Berry residence on the night of the bite on JA, gave evidence that he observed a bite he estimated to be one and half inches to two inches deep.

[52] Mr. Vinson also reviewed the disclosure materials in relation to Charlie's bite on Houston. In his report, he concludes that both dogs were likely off leash, which, in his view, created a greater likelihood that an incident would take place. He took issue with the description by Mr. Walk Lake of the injuries suffered by Houston as unsubstantiated. He took further issue with any finding that Charlie was the "aggressive dog", as, in his view, that would involve accepting the complainant's version of events as true, without independent verification. He concludes it is "difficult to allocate blame, or to label either dog as completely responsible".

[53] There is nothing to suggest that the Prosecution sought any interim orders under DOLA, while this matter was being addressed.

What is the Issue?

[54] The issue is whether the Prosecution has established, on a balance of probabilities, 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" and as a result, whether the court should order, "that the dog be destroyed in the manner specified in the order" (ss4(3)(a)).

[55] Section 4(6) of DOLA instructs that the Court may consider the following:

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.

Defence Position

[56] Counsel for the defence relies on a series of cases which, in her view, stand for the proposition that destruction orders are generally limited to circumstances where there has been a flagrant breach of an order, including any interim order, or, where owners have demonstrated indifference to risk.

[57] In this case, in applying the factors set out in DOLA, Ms. Lutes accepts that there have been a number of instances of aggression, only two involving bites, one each on a dog and a child, and there have been none in almost eighteen months. Charlie was described as exhibiting normal behaviours in Ms. Sciberras extensive experience with dogs, apart from his lunging and almost incessant barking. He is described as "having territorial tendencies". However, he is also now these eighteen months older and his barking is greatly reduced, according to both Mr. Berry and Ms. Sciberras. Simply, he is more mature and likely to more quiet in temperament.

[58] There is no doubt that the bites in both cases are significant, in particular in the case of JA. Both instances involved a single bites, as opposed to multiple bites, and, after the bite, Charlie sat and then returned to his owners.

[59] Counsel urges that Halloween constitutes an exceptional circumstance. There would have been raucous activity on the street, with many children making noises and wearing costumes including face masks.

[60] In her submission, there is no doubt Charlie is capable of inflicting similar injuries in the future, however, with the steps taken to control his behaviour, this is far less likely to occur.

[61] Further, Ms. Lutes argues that Ms. Sciberras and Mr. Berry have taken significant steps to control Charlie's behaviour. They have moved. Ms. Sciberras now only takes Charlie outside to the yard and Mr. Berry only outside the property on a leash and with a muzzle. The yard is gated and signed with warnings. The house is not accessible to occasional or casual visitors, as access requires passing through the area occupied by Ms. Sciberras mother. Only visitors well known to Charlie's owners come directly to their part of the house. Access to Charlie is extremely limited. Simply, the circumstances when Charlie could bite are extremely limited.

[62] Finally, we have the assessment of risk and opinion tendered by Mr. Vinson, who estimates it to be limited.

Crown Position

[63] Ms. Coles remains skeptical. In her view, the opinion offered by Mr. Vinson should be discounted on the basis that he tended toward advocacy rather than offering permissible opinion based on the facts.

[64] To this date, Charlie's owners have not seen fit, without explanation, to have Charlie neutered, which, according to Mr. Vinson, is a recommendation he would make, but for the fact that, according to Mr. Vinson, the family veterinarian did not make a recommendation to neuter Charlie.

[65] In the Prosecution view, the wound inflicted on JA is more grave than is being accepted by Mr. Vinson. Clearly, Charlie's owners did not in any way play down the gravity of the injury and have accepted responsibility for it, however, the fact remains that Charlie is capable of repeating such behaviour.

Analysis and Conclusions

Assessment of Expert Evidence

[66] To start, I will review the evidence of Kerry Vinson. I find it less than helpful, let alone persuasive. I found that while his work is founded on that of recognized experts in the United States, he has modified that work without subjecting his own variations to scrutiny or peer review. His assessment is removed in time, first from the events giving rise to these proceedings as well as from current circumstances. He has relied on second-hand information while lamenting that municipal enforcement officers relied on such information. Finally, as an admitted expert, he showed inclination to advocacy as opposed to neutral support to the Court in its decision-making.

[67] To start, although I admitted him as an expert based on his experience as described on his curriculum vitae, it emerged though his evidence that:

a. He has borrowed research materials from US sources, as indicated above, including Cornell University and Dr. Dunbar. He does not refer to any specific training received through these resources (although he did talk about picking up the materials while attending conferences, presumably sponsored by them or at which they presented). He claims no other related credentials. He has modified the materials he has collected, but provides no information that these modifications have been reviewed by, let alone agreed to by the original authors. As a specific reference, I would point to the decision not to test for aggression towards children.

b. He prepared a report in relation to Charlie's bite on JA after an assessment taking place almost year after the incident, and, it would seem, without knowledge of Charlie's bite on Houston. However, his reports prepared for these proceedings just weeks before the hearings, treat the episodes as essentially isolated from one another, and not imputing any information regarding one event in assessing the other.

c. His reliance on statistical data in support of his position that dogs only ought to be or need to be euthanized when they present an imminent risk has never, to the best information available to the Court, been subject to peer review of any kind or that he has published any peer reviewed articles, or submitted his views for evaluation of any kind.

d. While Mr. Vinson was troubled by Town staff having requested an order for euthanizing Charlie without having seen Charlie, he appears to have had little reluctance to rely on information provided to him by Charlie's owners, such as information about the neighbourhood and environment of the night Charlie bit JA. There is nothing before me to suggest he had independent information to support his reliance on that information. The evidence before the Court does not indicate, as Mr. Vinson would hold, that the trick-or-treaters were raucous or that Charlie was in any way agitated by their presence in the neighbourhood.

e. While indicating to the Court that he understands that until a Court pronounces on facts in a case they should be referred to as allegations, he described the events in these matters as "alleged" bites, even though there was no dispute that Charlie bit both Houston and JA. I note that this issue was canvassed prior to admitting Mr. Vinson as an expert witness, however, this issue took on more prominence as his evidence unfolded.

f. While Mr. Vinson gave evidence that he has been admitted as an expert on numerous previous trials, he was at no point forthcoming about the fact that in Kent v. Laveridiere, the Madam Justice D. A. Wilson of the Superior Court found "While I have found Mr. Vinson to be knowledgeable, at times he assumed the role of an advocate and seemed unwilling to concede points that ought to have been agreed to and instead steadfastly maintained his opinion." I would echo those concerns. For example, when pressed about wearing darkened sun glasses while conducting his assessment with Charlie, he resolutely stood by his opinion that Charlie was looking directly at him; when noting that the property where the assessment occurred may not have been as lifelike as to give a proper assessment, noting that it would have been familiar to Charlie and that Ms. Sciberras was present, he held firm to the view that these factors would not dilute his findings. Conceding that they could be factors to weaken his findings would have been more realistic.

[68] I therefore place little weight on his evidence and opinions.

Application of the Bite Scale

[69] Ultimately, I must determine whether I am persuaded that the risk presented by Charlie can be mitigated through the controls already put in place or any additional controls I may impose. To assist in this assessment, I find The Bite Scale helpful.

[70] At Level 3, the scale suggests that "Without treatment, other Level 3 bites may follow with a slow, albeit predictable increase in severity", and further "prognosis is fair to good with owner compliance". At Level 4, the author suggests the "Prognosis for resolution is very poor because of the difficulty and danger of trying to teach bite inhibition to an adult hard-biting dog and because absolute owner-compliance is rare."

[71] What is notable about both these comments is the reference to treatment. This also appears to be distinguished from "owner compliance".

[72] There is no disagreement that Charlie has bitten, first another dog and later, a young boy. This sounds like progression, if not predictable progression.

[73] I have heard about controls steps taken by Charlie's owners. The evidence is not consistently persuasive that there has been "absolute owner-compliance". Setting aside the puppy nip incident, it is clear that Ms. Sciberras was reluctant to accept that Charlie was prone to dangerousness. She continued to walk Charlie leash free. Remarkably, Mr. Berry, on arrival at the park on June 8th, admonished Mr. Walk Late to leash his dog Houston. Why would he do so, in particular given his adamant view that he had no prior encounters with Mr. Walk Late? The answer can only point to his understanding that Charlie could and/or might be a danger to Houston, that Charlie was likely roaming the trails off leash and that Charlie was at least likely to become aggressive toward Houston. This suggests that others bear responsibility for protection of their animals and Mr. Berry has limited responsibility for the actions of any dog he may own.

[74] In spite of knowing that Charlie had already bitten Houston, and having arranged for additional training for Charlie, it is clear that there were inadequate steps taken to ensure Charlie did not interact with trick or treaters on Halloween, 2016. Again, regardless of whether he was in the house and visible to visitors on the couch, or in the back yard, the simple fact is he reacted to the arrival of the children, rushed out of the house, and bit a young victim.

[75] Although I completely accept Ms. Sciberras expressions of concern for young JA and her remorse, along with her acceptance of responsibility, I am not convinced that she fully understands or appreciates the risk Charlie poses. While she gave evidence that she never takes Charlie off the property for walks, she tendered in evidence a video depicting Charlie's interactions with a dog described as "unknown" to both her and Mr. Vinson. In this case, Charlie was off leash and un-muzzled. It is clear that the visiting dog was a female (unknown whether spayed), and the grounds were familiar to Charlie; furthermore, the defence's own video belies, at least for this brief period of time, the too relaxed attitude toward maintaining the ultra-cautious levels of control she would have me believe she exercises.

[76] I cannot conclusively determine whether Charlie falls within a Level 3 or Level 4 on The Bite Scale, however, I do have the evidence of the investigating officer who observed a bite that was between one and a half and two inches deep. This would resolve the issue and put Charlie's bite at a Level 4. While this Scale was presented in evidence by Mr. Vinson, it was introduced without modification by Mr. Vinson leaving me able to apply the principles independent of his input. Those comments made, I am inclined to find on a balance of probabilities that the bite on JA was a Level 4 bite.

Finding on Menace to Public Safety

[77] Section 4(1.3) of DOLA directs that "Findings of fact in a proceeding under this section shall be made on the balance of probabilities."

[78] I am satisfied that the prosecution has established, on a balance of probabilities, that the dog has been and is a menace to the safety of both persons and domestic animals, and, as such, an Order is required. Further, I am not persuaded that the owners/defendants are suitable owners of a dog such as Charlie, as their evidence reveals a too lax attitude towards their responsibilities, and continues to point responsibility to those who might be bitten by Charlie.

[79] Specifically, I find that Charlie has shown an inclination to aggressive behaviour, starting from when he was a pup. This has been repeated through a number of subsequent event, and while he has not been involved in any reported incidents since the two which are the subject of these proceedings, it is hard to predict when such aggressive behaviour may be repeated. The attack on JA was serious, resulting in life-long trauma for the victim. While the owners speculate that there are factors such as the noise of Halloween contributing to the latter bite, I am not persuaded that any neighbourhood activity contributed. Of course, there is nothing to suggest that Houston or other similar dogs engaged in attacks that evening. While there is a compelling suggestion that the controls put in place will substantially reduce – albeit not eliminate – risk of repetition, I am not persuaded that the owners are sufficiently committed to compliance with the controls required to achieve this result.

[80] At the same time, I am mindful that the Crown never sought any interim control orders nor is there any evidence of post-event bites by Charlie. For these reasons, I am not persuaded that a destruction order is required either.

Authority to Order Surrender

[81] After completion of submissions, the Court asked the parties for additional submissions with respect to the possibility of ordering the defendants to surrender ownership of their dog.

[82] The Crown position is that such an approach might be appropriate, and that, if the Court were to make such an order, that Charlie should be surrendered to the Ontario Society for the Protection of Cruelty to Animals (OSPCA), and an order of costs made against the defendants in relation to assessments and care. The Prosecution proposals a protocol that the OSPCA would follow to determine Charlie's future placement or destruction.

[83] The defence opposes such an approach, first suggesting it to be outside the authority of the Court, and, secondly, asserting it not to be necessary, based on the evidence. In the event that the Court were to find a basis for making an order to surrender ownership, then they suggest transferring ownership to Mr. Berry's mother, who resides in the same area as the defendants, or to a dog sanctuary. The defence proposes "There are many such facilities throughout the Province who deal with aggressive animals as opposed to the pound and the inevitable euthanasia." No specific sanctuary is proposed.

[84] The issue of ordering the defendant(s) to surrender the dog revolves around the wording of section 4(3) of DOLA, which reads:

(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.

[85] Section 4(4) provides some examples of control orders, as follows:

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.

[86] The Prosecution position is that the scope of this authority is broad enough to permit the order under consideration. The defence takes the view that the examples limit the range of orders the Court may impose and absent express statutory authority, what would amount to a forfeiture order is not contemplated. In the defence view, issues of ownership of property are civil and beyond the jurisdiction of the Provincial Offences Court.

[87] I note the section 64 of the Interpretation Act, which declares "An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects." As such, authority to make orders directed at the safety of the public must be read broadly, liberally and with the statutory purposes in mind, in this case public safety.

[88] I accept that I have authority to take steps to ensure public safety. While the list of possible "measures" set out in the statute is suggestive of what the Legislature contemplated, I am of the view that the phrase "measures… for the purposes of public safety" must be read broadly and does include the authority to order the surrender of the dog.

[89] Further, this is consistent with the language of the provision granting me authority to order that the defendant(s) not own a dog for a period of time. This provision is not limited in application to the circumstance where I order destruction of the dog but applies when "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". Were I not able to order surrender of the animal at the same time as ordering a ban on ownership, the provision would be hollowed out.

[90] From another perspective, I would be left by the parties with essentially a binary choice: order destruction of the animal or ordering controls. Given that I am not satisfied, on a balance of probabilities, that the owners can or are prepared to comply with control orders, I would be left with ordering destruction; given evidence that the dog can be controlled and public safety assured, I would be left to order imposition of controls which I do not believe would be respected. Neither option leaves me satisfied.

[91] Absent compelling information about Mr. Berry's mother nor about any sanctuary which could or would take Charlie, and or how they would address the security concerns associated with his behaviour, I am left with no alternative but to adopt the prosecution proposal to order he be surrendered to the local OSPCA or an agreed shelter willing and equipped to received Charlie on terms agreeable to the parties. In any event, I would not be prepared to order surrender to Mr. Berry's mother as this would not sufficiently address the need to protect the public which I am mandated to achieve.

[92] This leaves me with the issue of costs, which I will leave to reserve, in the event they cannot be resolved amicably between the parties.

Section 11(b) Application Pursuant to the Charter

Procedural Background

[93] As a preliminary matter, the Court was invited to consider a motion for a stay, pursuant to s.24 of the Charter. The facts underlying this application are not in dispute, but there are several legal issues.

[94] The procedural background to these matters is not uncomplicated. At the outset of these proceedings, the Court had three Informations and two Statements pursuant to s.161 of the Provincial Offences Act. Two Informations in relation to Charlie biting Houston on June 8, 2016 was sworn 24 September 2016, one each against Mr. Berry and Ms. Sciberras. Evidence in the course of the trial established that the By-law Officer investigating this matter had advised Ms. Sciberras near the end of June, 2016 that a charge would be laid, and no evidence was lead as to why it took a little more than almost three months to actually initiate the process.

[95] On 21 September 2016, a Statement Under Section 161 of the Provincial Offences Act was sworn, seeking a control order against Ms. Sciberras.

[96] On November 15, 2016 an additional Information was sworn against Mr. Berry, charging him with an offence pursuant to DOLA, arising from Charlie biting JA on Halloween, 2016.

[97] The matters proceeded through case management appearances, with steps taken to address disclosure issues. Ms. Lutes, on behalf of the defendants, sought to engage in resolution discussions. The situation was complicated by the fact that the first charge was being prosecuted by the municipal prosecutor. When the Halloween charges arose, the Provincial Prosecutor took an interest and ultimately assumed responsibility for prosecuting all proceedings related to Charlie.

[98] The discussions progressed with some significant success until the parties were unable to arrive at an agreed statement of facts, and the Halloween matter was set for trial, eventually in October, 2017. That proceeding came to an end as a result of a mistrial. There is no issue between the parties that the grounds for the mistrial were unforeseeable.

[99] The issues of delay were addressed squarely by motion returnable on the first day of the trial. The record supports the idea that any delay issues were clearly in the mind of the defence well in advance of that date and specific notice of the intention to bring an 11(b) motion was provided to the Crown Prosecutor in mid-March 2018. Ultimately, defence was advised to be prepared to argue the 11(b) motion on the first of the scheduled trial dates, on the understanding that earlier dates could not be secured.

[100] In this context, it is also notable that the parties made the unusual agreement to continue with the trial of the merits on the scheduled dates and allow the Court to make a decision in relation to the motion for a stay, in concert with its findings on the merits so as to avoid further delay issues.

[101] After the trial completed, the Court undertook to establish a quick return date, to limit any additional issues related to delay. Regrettably, the Court experienced a personal loss which interfered with its ability to complete its determination by the return date. However, by that date, the Court identified and then raised a further legal option which required the parties to make additional submissions. A new date for issuance of the Court's determination was fixed however, it is unclear if or how much of that period was impacted by (un)availability of counsel and how much of it was for the purpose of preparing submissions in relation to the newly identified issue.

Delay Analysis

[102] In terms of the delay issues, the Prosecution position is that a right to speedy resolution of the matter before does not apply in this case (reasons explained below). The defence position is that either the matter has exceeded the eighteen month time frame contemplated in R. v. Jordan, or, in the alternative, that the matter has taken more time than it should have in the circumstances.

[103] The defence acknowledges it made an express waiver in relation to both sets of proceedings. One was on the basis that counsel was unavailable for the summer of 2018 for trial. There is no information before the Court as to whether trial dates would have been available in the summer.

[104] In that context, trial dates were set in October, 2017. It is clear from all perspectives that this date accorded with the parties' wish that consecutive days be scheduled.

[105] The position that the delay exceeds eighteen months requires that the Court allow the defence to repudiate the waivers, on the basis that they were not fully informed. The defence argues it fully expected the trial to be completed on the schedule that had been set. Had the defence known or had any reason to anticipate that there would be a mistrial, it would not have waived its right to trial on a timely basis.

[106] There is no precedent offered by the defence for its position in terms of repudiating its waiver. I can find no reason for accepting that position and several against allowing defence to repudiate waivers, not the least of which is that doing so would inevitably require the court to delve into the legal advice that was given and the knowledge and mindset of the defendants when the waiver was expressed. This cannot be appropriate and I would not venture down that road.

[107] Further, the defence argues that the time from the mistrial applies to the total calculation of time, and, although it may qualify as an exceptional circumstance, it should not extend the eighteen month timeline.

Coordination Issues Between Prosecutors

[108] Details set out above in relation to carriage of the matters are important for context. Carriage of Charlie's bite on Houston was being prosecuted by municipal prosecutors however, Charlie's bite on JA was assumed the Provincial Crown. The Provincial Crown asserts it only became aware of the matters being prosecuted by the municipality very late in the process. Had it known of the June incident, it would have taken that over, as well.

[109] This, of course, belies a significant gap in the administration of the Memorandum of Understanding between the Province and municipalities. According to the Provincial prosecutor, the Crown's office has no way of learning of on-going prosecutions being handled by a municipality when they become involved in a DOLA matter. This is remarkable, as the Memorandum has been in place for over a decade. It is unclear how the Provincial Prosecutor ever gets in involved in matters, that is, which matters are originally directed for prosecution by the municipal prosecutor and which for prosecution by the Provincial Prosecutor.

[110] It is also further remarkable, since Ms. Lutes advised the two (municipal and Provincial) prosecutors of her involvement in these matters and sought resolution discussions in relation to both. This is reflected on the record in February, 2017, with the Provincial Prosecutor present. In addition, there were significant staffing changes in the Provincial Prosecutor's office.

[111] Once the Provincial Prosecutor who brought these matters to a hearing became fully aware of the matter being handled by the municipal prosecutor and appreciated the significance of the two sets of proceedings, she concluded, after a review of the matters, that she would change the prosecution's position on disposition, to seek a destruction order.

[112] It is understandable why that would have led to an impasse that required judicial determination by way of a hearing. As a further element of this, it was only on the May 23, 2018 date that the Province officially withdrew the charges laid by way of Informations and confirmed it was proceeding only on the Statements.

[113] It is also notable and perhaps remarkable that in light of the position of the Provincial Crown in terms of ultimate disposition, that no interim order was sought for control of Charlie, as is available pursuant to DOLA.

Timeline Analysis

[114] In relation to Charlie biting Houston, the raw timelines from the swearing of the Statement to the disposition date are as follows:

date of alleged event	6/8/2016
sworn date	9/21/2016
disposition date	8/18/2018
lapse time from offence to hearing (months)	26.43
time lapse from sworn date to hearing (months)	22.98
Waiver (months) (refer to start and end dates below)	3.48
Net delay	19.50
start of waiver period	5/16/2017
end of waiver period	9/1/2017

[115] In relation to Charlie biting JA, the raw timelines from the swearing of the Statement to the disposition hearing date are as follows:

date of alleged event	10/31/2016
sworn date	11/16/2016
disposition date	8/18/2018
lapse time from offence to hearing (months)	21.67
time lapse from sworn date to hearing (months)	21.48
waiver (months) (refer to start and end dates below)	1.00
Net delay	20.48
start of waiver period	2/27/2017
End of waiver period	2/27/2017

[116] Thus, the net delay (absent any allowance for the family loss experienced by the Court) in both proceedings exceeds the threshold of eighteen months contemplated for proceedings in the provincial court. In relation to the dog bite incident, the delay would be approximately nineteen and a half months, and in relation to the bite on the child, twenty and a half months.

[117] Even assuming that rights to a timely disposition of the matters apply to hearings pursuant to a Statement under S.161 of the Provincial Offences Act, I would conclude that I would not grant a stay in these circumstances.

Applicability of Charter s.11(b)

[118] I certainly do not want my decision in any way to reflect adversely on counsel for or the defence. Ms. Lutes and her clients acted diligently throughout, and seemed to be burdened by changes in who was responsible for the prosecutions, and changing positions, and, of course, the belated assumption of responsibility for prosecuting the matter originally being prosecuted by the municipal prosecutor to the Provincial Crown's office. As noted above, it is clear that there is a lack of clarity as to when or why the Provincial Crown assumes carriage. In spite of that, the defence concedes that at some earlier stage, the municipal prosecutor took a position that Charlie should be destroyed, even though that resolved to the satisfaction of the defence but for arriving at an agreed statement of facts.

[119] That said, the lapsed time is not far over the eighteen month threshold contemplated by R. v. Jordan, apart from allowance for the mistrial and the delay occasioned by the personal loss in my family. While I have not attributed particular periods that would be deducted for these reasons, I am satisfied they would bring the total delay below the eighteen month threshold in both cases. This is especially true since at dog bite matter would be easily below the eighteen month threshold after allowing for the mistrial and the family loss.

[120] In the event that this determination is challenged, I am must deal with the position of the Crown Prosecutor that s.11(b) relief is not available in cases such as these. As noted, since the Province ultimately withdrew the charges, the only matters before the Court are the Statements, ultimately seeking a destruction order.

[121] The Crown relies on the decision in Cochran v. Ontario (Attorney General). In that case, T. P. Herman, J. stated at paragraph 51 "As a result, and in contrast to proceedings under s.18, ss.7 and 11 of the Charter are not engaged". This case was reviewed at the Ontario Court of Appeal but the issues related to applicability of s.11(b) the Charter was not disturbed, and the position is binding on this Court.

[122] Respectfully, this reading takes the statement above out of context. The quote above is taken from paragraph 51 of that decision which states " The applicant's position is that s. 19 is part of a comprehensive scheme and, as such, the entire legislative scheme should be struck down. " Importantly, the following paragraph starts with "In my opinion, s. 19 is not part of a comprehensive scheme." The Court goes on to find that exercising an authority pursuant to s.19 is available and appropriate and takes that approach in its decision. This leaves me to conclude that the reference cited by the Prosecution was merely a recitation of the "applicant's" (in that case, the dog owner's) position. The Court expressly rejects that position in the following paragraph. Thus, the proposition upon which the Prosecutor relies is neither a reflection of the Court's decision nor binding on me.

[123] Indeed, it is not abundantly clear whether the dog owner's objection rested upon s.7 or s.11 of the Charter. In any event, the Court exercised its authority pursuant to the Charter, and struck down particular provisions or parts thereof.

[124] The Prosecution further relies on Martineau v. Minister of National Revenue, which frames a comprehensive test for determining the applicability of s.11(b) of the Charter. The Supreme Court directed that section 11 of the Charter will apply in criminal proceedings (as opposed to administrative proceedings) which lead to true penal consequences.

[125] The parties argued passionately about how to interpret and apply the principles set out in Martineau v. Minister of National Revenue. However, it is important, once again, to note that the issues in that case relate to issues of self-incrimination. Further, that case refers to R. v. Wigglesworth, an earlier decision of the Supreme Court, which held at paragraph 16 "The rights guaranteed by s. 11 of the Charter are available to persons prosecuted by the State for public offences involving punitive sanctions, i.e., criminal, quasi-criminal and regulatory offences, either federally or provincially enacted."

R. v. Jordan Framework

[126] The Supreme Court in R. v. Jordan established a new framework for determining whether delay in bringing matters to trial is reasonable, or a breach of a defendant's rights pursuant to the Charter. The introductory paragraphs of the Court's reasoning is instructive:

1 Timely justice is one of the hallmarks of a free and democratic society. In the criminal law context, it takes on special significance. Section 11(b) of the Canadian Charter of Rights and Freedoms attests to this, in that it guarantees the right of accused persons "to be tried within a reasonable time".

2 Moreover, the Canadian public expects their criminal justice system to bring accused persons to trial expeditiously. As the months following a criminal charge become years, everyone suffers. Accused persons remain in a state of uncertainty, often in pre-trial detention. Victims and their families who, in many cases, have suffered tragic losses cannot move forward with their lives. And the public, whose interest is served by promptly bringing those charged with criminal offences to trial, is justifiably frustrated by watching years pass before a trial occurs.

[127] There are several principles that emerge: first, the Court was addressing "trials" and people being "charged". The Court addresses the consequences of delay, including impacts on accused and victims, as well as the public. Notably, there is reference to pre-trial custody, which is almost exclusively applicable in the context of criminal proceedings.

[128] In setting out this new framework, the Supreme Court said:

A. Summary

46 At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry).

47 If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.

48 If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clear cases.

B. The Presumptive Ceiling

49 The most important feature of the new framework is that it sets a ceiling beyond which delay is presumptively unreasonable. For cases going to trial in the provincial court, the presumptive ceiling is 18 months from the charge to the actual or anticipated end of trial. For cases going to trial in the superior court, the presumptive ceiling is 30 months from the charge to the actual or anticipated end of trial. We note the 30-month ceiling would also apply to cases going to trial in the provincial court after a preliminary inquiry. As we will discuss, defence-waived or -caused delay does not count in calculating whether the presumptive ceiling has been reached -- that is, such delay is to be discounted.

50 A presumptive ceiling is required in order to give meaningful direction to the state on its constitutional obligations and to those who play an important role in ensuring that the trial concludes within a reasonable time: court administration, the police, Crown prosecutors, accused persons and their counsel, and judges. It is also intended to provide some assurance to accused persons, to victims and their families, to witnesses, and to the public that s. 11(b) is not a hollow promise.

[129] In this case, up to the start of the scheduled dates for these proceedings, the defence believed it was dealing with both "charges" and "Statements", under the Provincial Offences Act. Withdrawing the charges may have insulated the prosecution, in its view, from Charter purview. However, I do not agree. I am aware that in this case, the Court ultimately was not dealing with a person "charged with an offence" (once the charges were withdrawn). The matters were prosecuted pursuant to provincial, regulatory statute and falls within the framework contemplated in R. v. Wigglesworth.

Exceptional Circumstances

[130] Returning to and completing my earlier analysis, it is clear, of course, that no one would have anticipated a mistrial. In this context, the parties agree that the mistrial may provide context for an exceptional circumstance. There is no suggestion that the Crown could have anticipated the circumstances giving rise to the mistrial or taken steps to avoid it.

[131] That said, it is equally clear that there was a delay triggered by the mistrial. The matter was returned to the case management stream to fix a new trial date. A further judicial pre-trial was ordered, after which new dates were set. The Crown then took additional steps to bring the matter forward, by arranging court time and resources in a location normally reserved for trials of criminal matters, and obtaining agreement of defence to the new dates.

[132] I am mindful of the principles set out R. v. Creglia, in which the Court said:

45 These cases also establish that the state undisputedly bears an obligation to expedite retrials: see also R. v. Brace, 2010 ONCA 689 at paras. 14-15 and R. v. G.V.E. [2016] O.J. No. 91 at para. 76. This is logically practical when you consider the reason why a retrial is ordered. As Paciocco J. (as he then was) observed in R. v. Fitts, [2015] O.J. No. 6941 at para. 5:

...accused persons are not ordinarily responsible for the need for a second trial. A second trial becomes necessary because of judicial error, or extenuating circumstances requiring a mistrial at the first hearing. Accused persons should not, in my view, be expected to undergo unacknowledged subjection to the stress and challenges of delay simply because, through no fault of their own, the first trial failed to dispose of the matter.

[133] Accordingly, it would be appropriate to allocate some but not all of the delay to systemic issues relating to court resources. The mistrial occurred in October, 2017. The additional judicial pre-trial took place in January, 2018, and the trial in May, 2018. It is clear from the record that the parties had a strong preference that the re-trial be scheduled on consecutive days, making scheduling more difficult. In addition, I am mindful that the original dates provided for trial were in July but the Crown made efforts to secure court space and resources (court staff) to allow the matter to be heard in May.

[134] In these circumstances, the time it took to schedule and conduct a new judicial pre-trial and then find suitable dates is not optimal but also not unreasonable.

Time Under Reserve

[135] Finally, I am also mindful that my analysis refers to the time from the swearing of the Informations to the completion of the proceedings, meaning the rendering of this judgement. I recently came to know of a decision in R. v. MacIsaac, in which the Ontario Court of Appeal addressed whether the time a case is under reserve for a decision factors into the Jordan calculus. The Court declined to decide the issue, writing:

Jordan did not address whether the time a judgment is under reserve in included in the calculation of total delay and appears to have left the matter open. On the view I take it is not necessary to resolve the issue of reserve time for purposes of this case, and I would leave the issue for resolution in a future case, with a fuller evidentiary record and argument.

[136] I have approached the issue conservatively by including the time to disposition, which includes necessary time to consider the multiple and complex issues in this case, yet still finding that the defendant's rights to have their matter disposed of on a timely basis have not been breached in such a way as to justify a stay of these proceedings.

Defence Efforts to Expedite

[137] The defence position is that the matter could and should have been brought to the trial/hearing sooner, and that it took all reasonable steps to achieve that result. Defence pushed for disclosure; pushed to identify the name of the prosecutors with carriage of the matters, participated in resolution discussions as well as two judicial pre-trials; defence expressed an openness to resolve the matters and was, ultimately, frustrated once the matters were combined and a new Crown position on disposition emerged.

[138] There are several cases that have considered the circumstances in which the question of delay below the presumptive ceiling as set out in R. v. Jordan. As set out in paragraph 82 in R. v. Jordan:

A delay may be unreasonable even if it falls below the presumptive ceiling. If the total delay from the charge to the actual or anticipated end of trial (minus defence delay and delay attributable to exceptional circumstances that are discrete in nature) is less than 18 months for cases going to trial in the provincial court, or 30 months for cases going to trial in the superior court, then the defence bears the onus to show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the s. 11 (b) application must fail.

[139] I am sympathetic to the defendants' concern for delay, the stress that they experienced, the costs related to multiple appearances and disjointed prosecutions (a string of prosecutors, lack of coordination between the Provincial Crown's office and the municipal prosecution) and the change of position on disposition), as well as the mistrial.

[140] Perhaps the most striking factor contributing to delay is one of the least explored. The evidence in this case reveals that the By-law Enforcement Officer investigating this bite on Houston concluded as early as the end of June, 2016 that a charge would be laid, and conveyed that information to Ms. Sciberras. There is no explanation as to why it took until almost the end of September to attend at the Court, swear the first Information and commence the proceedings by way of summons (returnable mid-October, 2016). The commencement of process in relation to the bite on JA took much less time and all matters were before the Court by mid-December, 2016. Notwithstanding this, I am satisfied that, based on well-established precedent, the calculation of delay starts with the swearing of the Information.

[141] Then, as early as February, 2017, defence clearly expressed on the record in the presence of the then Crown prosecutor that they were dealing with two similar prosecutions – with two prosecutors involved - the municipal prosecutor and Crown prosecutor - and invited coordination between the two prosecutors, if not joining of carriage in one prosecutor. That the Provincial prosecutor asserts that she only became of the parallel proceeding in the fall of 2017 is a clear example of someone "dropping the ball" and inevitably lead to additional and most likely unnecessary delay. Interestingly, the presiding justice expressed surprise at the involvement of the Provincial Crown's office, signally how rarely such matters come to be prosecuted by the Provincial Crown's office.

[142] In addition, the changes in the person serving as Prosecutor with carriage for these matters triggered a defence strategy to secure the expert report referenced above, occasioning additional costs and delays. Throughout, the defence would have without doubt struggled with the risk that their dog could be destroyed, while at the same time the prosecutors failed to bring applications for interim control orders.

[143] Having developed the concern that Charter rights were not being respected, defence advised the Crown prosecutor (now having carriage of all matters) and sought to have a date set for hearing of the anticipated motion for a stay. In spite of the stay, the Crown prosecutor apparently took the position that early court dates were not available to hear such a motion, and, further, that confirming the identity of the trial justice who was going to hear the case – and thus would be required to hear the motion – would be too onerous to do prior to the scheduled trial dates, and invited the defence to argue its motion on the first date set for trial. Neither of these makes sense to me. In my view, the defence should have filed its motion and made a bring forward request to have the assigned justice scheduled to hear that motion. The required judicial assignment would undoubtedly have received appropriate priority, in particular noting that the justice who conducted the pre-trial in January, 2018 and who proposed combining these matters for expeditious disposition was by that time the Regional Senior Justice of the Peace, and would have been in a position to ensure such timely assignment.

[144] There is no doubt in my mind that the defence took significant steps to move these matters to conclusion much more expeditiously than came to be the case.

Markedly Longer Than Reasonable

[145] The Court, in R. v. M.B., set out an approach to addressing submissions on delay below the threshold contemplated in R. v. Jordan:

Did the Case Take Markedly Longer Than Reasonable?

51 A determination of whether this case took markedly longer than reasonable involves consideration of such factors as:

• case complexity and local considerations; and

• whether the Crown took reasonable steps to expedite the proceeding.

52 Scientific precision is not required in applying these criteria. Trial judges should employ the knowledge of their own jurisdiction including the length of time a similar case typically takes to reach trial in view of relevant local and systemic circumstances: [R. v. Jordan, at paras. 87-89, and 91].

53 On the first criteria regard must be had to the particular circumstances in the Toronto Region of the Superior Court. I find a recent decision by Molloy, J. of our court captures the problems facing the court:

Toronto has always had a busy criminal list, with a higher percentage of complex and long trials than is the case for other jurisdictions in the province, and perhaps in the country. Over the past two decades, as the population has grown and both the length and complexity of criminal trials have increased dramatically, there has been no appreciable increase in the number of judges in this jurisdiction. It has therefore become increasingly difficult to manage the Toronto criminal list in a manner that ensures a trial is scheduled within a reasonable period of time. Trial scheduling in Toronto has always required scheduling more trials than can actually be accommodated, with the knowledge that many of those cases will resolve prior to or on the trial date, and that a number of them will have requested adjournments for circumstances beyond the control of the court and the parties. If we scheduled criminal trials in direct relation to the number of courtrooms and judges available, the waiting list would be years long, rather than months long as we have been able to maintain. [R. v. Divecha, 2017 ONSC 1770, at para. 32]

54 Molloy, J. went on to discuss the state of scheduling following the Jordan decision. She cited fewer resolutions of cases and continued judge shortage as impediments. Despite enlisting judges from other teams in the court to assist, many trial dates could not be met in the fall of 2017: [R. v. Divecha, at para. 33].

55 The acts of the Crown are also relevant. The Crown did not request any adjournments and in fact expressed concern about delay when the Applicant requested an adjournment because his newly retained lawyer was on vacation. The fact is no delay is attributable to the Crown. The current Crown took proactive steps to expedite the case by limiting the number of witnesses for trial to the Complainant and suggesting 5 days as the length of trial. The Crown accepted the three earlier dates proposed by the court and also suggested the shortest procedure for the challenge for cause to shorten the time for jury selection.

56 Taking into account local considerations and the Crown's and court's efforts to expedite the case, I find this case did not take "markedly longer than reasonable to get to trial". With cases below the presumptive ceiling, "in clear cases, the defence may show that the delay is unreasonable": [R. v. Jordan, at para. 105]. I find this is not one of the "clear cases" of unreasonable delay.

[146] There is some limited assistance in what is establishing what is "longer than it should have" taken to bring matters to conclusion. To start, the Supreme Court, in Jordan, said:

Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation. Trial judges should not parse each day or month, as has been the common practice since Morin, to determine whether each step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird's-eye view of the case. All this said, this determination is a question of fact falling well within the expertise of the trial judge

[147] A number of cases have considered the presumptive ceiling as would apply in contexts different from the criminal proceedings at the heart of the decision in Jordan. These included R. v. J.M., and York (Regional Municipality) v. Tomovski.

[148] At the same time, the cases leave the burden for proving a marked departure from what should be expected rests with the defence. Apart from presenting the principles captured above, I am provided no assistance in establishing how long would have been reasonable to bring these matters to conclusion, in the specific circumstances of this case and within this judicial region.

[149] Finally, I call to mind that, once the decision was made to require a judicial determination on these matters and resolution was no longer available, I am not persuaded that either party took on the difficult task of making concessions of fact that could have shortened the length of the proceedings. For example, even at that late day, the Crown had not yet withdrawn the charges and signalled its intent to proceed only on the Statements. Interestingly, only after the commencement of the proceeding did it emerge that the defendants conceded that the two bites had taken place. It is not clear that additional detail of the circumstances of these bites necessitated the extensive evidence that was eventually put before the Court.

[150] For these reasons, while I believe that the length of time was unnecessarily extended, I am not persuaded that it took markedly longer than it should have in this case.

[151] That said, I cannot grant the delay remedy sought and will give effect to my order above.

Signature

His Worship Donald Dudar

Justice of the Peace in and for the Province of Ontario

14 August 2018