An Ontario Superior Court judge has struck down parts of Ontario’s pit-bull legislation as unconstitutional, but has left the majority of the rules concerning ownership of the dogs intact.
In a decision earlier this year, Justice Thea Herman declared that parts of the two-year-old legislation placing restrictions on existing pit bulls and banning the ownership of new pit bulls after August 2005 breached the Charter, but invited both parties in the case of R. v. Cochrane to make submissions as to the appropriate remedy.
The case centres on the specific pit-bull provisions added to Ontario’s Dog Owners’ Liability Act in 2005, in response to what court documents refer to as, “Several brutal attacks by dogs that had been identified as pit bulls.”
The act bans the ownership, breeding, transfer, training, and importation of pit bulls, including pit bull terriers, Staffordshire bull terriers, American Staffordshire terriers, and American pit bull terriers, or any dog that has an appearance and physical characteristics similar to these dogs.
Restricted pit bulls are still permitted in the province, including those owned by an Ontario resident before August 29, 2005 or born in Ontario within 90 days of that date. However, these dogs are required to be sterilized, muzzled, and leashed.
The applicant, Catherine Cochrane, owner of a Staffordshire terrier cross, originally argued that the pit-bull provisions added to the act contravened the Charter as they were “overbroad and vague” and offended trial fairness and the right to be presumed innocent.
Cochrane claimed that s. 19 of the Dog Owners’ Liability Act, which details that a document from a veterinarian is proof that the dog is a pit bull, places the burden on the defendant to provide evidence that the dog is not a pit bull and infringes the defendant’s right to be presumed innocent under s. 11 (d) of the Charter.
In her March 23 ruling, however, Herman said the legislation was not overbroad, noting that only s. 19 of the act was contrary to the Charter and that including “pit bull terriers” in the definition is unconstitutionally vague, as it captures dogs beyond the three breeds included in the legislation.
In terms of remedy, Cochrane and the Crown differed on whether the entire legislation should be struck down because of its Charter inconsistencies, or whether only the offending sections should be severed.
Cochrane proposed that 15 sections of the act referring to pit bulls should be declared invalid. The Crown, however, submitted that only s. 19 and the section including “pit bull terriers” in the definition should be severed, while the rest of the legislation should remain intact.
Herman sided with the Crown in her ruling, eliminating the term “pit bull terrier” from the definition and severing s. 19. “[T]he prosecution scheme can continue to operate without the offending provision, it represents minimal intrusion into the legislative sphere and the cost consequences are not substantial,” says the decision.
Clayton Ruby, counsel for Cochrane, says they will be appealing the ruling, adding in a statement that, “We are very disappointed. This clears the way for Ontario to begin killing pit bulls again.”