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 February 2009 - Nr. 2

My Dog Teaches … about Legal Battles

Hunny by David McKagueOn October 24, 2008 the Supreme Court of Ontario reversed a lower court ruling that struck down several provisions of the Dog Owners’ Liability Act (more colloquially known as the "pit bull ban").

This law is now being challenged in the Supreme Court of Canada. Because it mandates that my dog Hunny be destroyed if I am caught committing the "crime" of playing ball with her anywhere in Ontario, the outcome of this appeal is of very grave importance to me.

If you thought the law does not apply to you because you own a Lab, a Doodle, a golden retriever or some other breed, you can still be subjected to the same penalties if your dog "on one or more occasions acted in a manner that posed a menace to the safety of persons or domestic animals." This vague and undefined criterion is not clarified anywhere in the law, putting the owner of every dog at risk to the whims of fearful, uninformed or malicious neighbors, landlords or public officials. Thus this appeal to the Supreme Court of Canada should be of vital concern to all dog owners, not just those with "pit bulls".

Consider also that once a ban is in place, other breeds can be added simply by the stroke of a pen. Italy started with a ban of 13 breeds; in a few short years the list has grown to 92 banned or restricted dogs, which now includes German shepherds, St. Bernards, collies, and even the Queen’s favorite, corgis. (I’m guessing that every time a dog bites someone anywhere in Italy, they add its breed to the restricted list.)

Actually, the recent Supreme Court of Ontario decision should be alarming to any freethinking person, whether you own a dog or not:
This ruling states, "... the right to own a dog is not protected by the Charter". I hate to be the bearer of bad news, but in this they are quite correct. Unlike the United States where property rights are enshrined in their constitution, we in Canada have no "right" to own anything. Thus the Supreme Court of Ontario has ruled that it is within the power of the government to restrict or ban whatever it pleases.

Further, the ruling declares that the government, in deciding to ban something, does not have to prove dangerousness, nor do the courts have to make a determination that perceived dangerousness is in fact real. All that is required is a "reasoned apprehension of harm". This is a chilling concept that goes completely against all advances our culture has made in human rights.

For example, all of us have a "reasoned apprehension of harm" when it comes to automobiles. We all know that, whether we drive or not, there is a possibility that we can be seriously hurt or even killed by our association with them. The fact that no one is suggesting that we impose a total ban on automobiles is attributable to the simple fact that cars and trucks are popular.

Human nature being what it is, all of us feel nervousness, fear, or "apprehension of harm" with anything unfamiliar. And because we can always find a way to justify our fears, they will always be "reasoned". This standard therefore is much more likely to be abused, not with the familiar and commonplace, but with the unfamiliar, the different, the misunderstood, the less popular, the minority position.

As a contrast, anti-discrimination laws hold that a person’s irrational fears cannot be used as an excuse to discriminate against any minority. Yet the Supreme Court of Ontario in this ruling has decided that, when it comes to dogs, irrational fears legitimize the law and further that the courts have no responsibility to determine if these fears are based on fact.

The possible damage inflicted by dogs is infinitesimal compared to that caused by automobiles. Applying this standard in the same way, cars and trucks would have been completely banned years ago. It is only the fact that dog owners form a minority in the population and of these, "pit bull" owners form a very small percentage, that our Ontario government could possibly introduce such a law.

Finally, the ruling re-affirms the clause in the original law that any dog with "physical characteristics substantially similar" to those of a "pit bull" will be classified as one. This seems to be nothing more than canine "phrenology". (Phrenology was a 19th century "science" of predicting personality traits by measuring the skulls and protuberances of people’s heads. In its heyday, courts had no problem finding "experts" who would testify that the accused was a "criminal" based on the size and shape of his head.)

Courts are supposed to be the reasoned and sober arbiters of second thought, not enforcers of irrational fear and prejudice.

By this ruling, the Supreme Court of Ontario seems to be saying, "The government makes the laws to define what is right and wrong. Therefore, the government, by definition, is always right and can never be wrong."

To make a "Dollars for Dogs" donation to help with the Supreme Court challenge, and for more information, see one of the following links:

Previous "Petitorial" articles by David McKague:

Editor’s note: I would like to encourage dog lovers everywhere to start a PETITION to have this law thrown out or revised to such a form where justice prevails. SFR.

Email to David McKague
David McKague talks about the pit-bull or pit bulls, pets, dogs, the duress put upon dog and the owners, especially through laws in Ontario, Canada, that affect and encroach on rights and freedoms of the individual, human rights, reputation of individuals and owners. David stresses the importance of being responsible and understanding when dealing with pets.

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