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Dog and Cat Control Law (Ontario)
(August 2008)

Chapter 4 - Dog Destruction and Control Orders


  1. Overview
  2. Procedures
    (a) Procedures Generally
    (b) Standard and Onus of Proof
  3. Section 4(1) Orders Against Dog-Owners Regarding Biting/Attacking/Menacing Incidents
    (a) Commencing Allegations under s.4(1)
    (b) Grounds for s.4(1) Order
    (c) Destruction or Control Orders (Non-Pit Bulls)
    . Orders Available
    . Factors Considered
    . Mandatory Destruction Order for Pit Bulls
    . Control Order Terms
    . Destruction Order Terms
    . Additional Order
    (d) Case Law
  4. Section 4(1.1) Contravention-Based Orders Against Any Person [Pit Bull Orders]
    (a) Commencing Allegations under s.4(1.1)
    (b) DOLA Contraventions
    . Failure to Prevent Dog from Biting, Attacking or Menacing
    . Pit Bull Ban
    . Pit Bull Muzzling and Leashing
    . Order Violations
    (c) Comment Regarding s.4(1.1) Orders
    (d) Conclusion Regarding s.4(1.1) Orders
    (e) Proving "Pit Bull"
  5. Interim Orders
  6. Appeals
________________________________________

1. Overview

The Dog Owners Liability Act ("DOLA") contains provisions for court proceedings against dog-owners where violence or 'menace' towards "persons or domestic animals" has been alleged, or where it has been alleged that the owner has committed a DOLA offence [see Ch.6: "Offences"]. This chapter explains the terms and procedures of such court applications.

There are two 'streams' of court orders set out in DOLA, one for biting/attacking/menacing incidents, and the other for general DOLA-related contraventionss.

If certain criteria are met (as explained below), such court proceedings, may result in a court order for the destruction of the dog or - alternatively - the imposition of specific control measures [DOLA s.4]. The provisions include mandatory destruction of pit bulls where grounds for any court order are made out.

Also note that these court order proceedings can be commenced against a dog-owner regardless of whether the dog is in pound custody or not, though dogs suspected of being pit bulls that enter the pound system are subject to much more summary, non-court treatment [see Ch.3, s.7: "Pounds, Shelters and Research: Pit Bulls in Pounds"].

For the purposes of these court proceedings [DOLA s.1(1)]:
"owner", when used in relation to a dog, includes a person who possesses or harbours the dog and, where the owner is a minor, the person responsible for the custody of the minor;

2. Procedures

(a) Procedures Generally

These proceedings are conducted in the Ontario Court of Justice, which is Ontario's regulatory prosecution and lower-level criminal court.

The procedures for these court orders are largely the same as those used for Part III prosecutions under the Provincial Offences Act ["POA"], which governs proceedings commenced 'by way of information'. Part III procedures are the more serious of the POA offence procedures, and involve procedures akin to those used in the main criminal courts for summary offence matters.

Provincial Offences Act, Part III: Commencement of Proceeding by Information

One significant variation from the Part III procedures is that instead of the complainant swearing an "information" (an affidavit before a justice of the peace, or "JP" ) alleging the offence, the proceeding is commenced by the filing of a sworn "statement ... attesting, on reasonable and probable grounds, to the existence of facts that would justify the order sought" [POA s.161(a); Court of Justice Act, Reg 200/90, Form 142].

Further, instead of being asked to enter a plea, the defendant will be asked whether they intend to dispute the making of the order or not [POA s.161(b)].

Detailed procedures for the hands-on conduct of these cases is beyond the scope of this present Isthatlegal.ca Dog and Cat Control Law (Ontario) Guide, but I am projecting a Private Prosecutions Guide (Canada and Ontario) in the near-future which may address that.

(b) Standard and Onus of Proof

On the hearing of applications for such orders, the court shall decide the facts of the matter on the civil standard of "balance of probabilities" [ie. 'more likely that not'] [DOLA s.4(1.3)]. This distinguishes such proceedings from typical criminal or regulatory prosecutions where the standard of fact-finding is 'beyond a reasonable doubt'].

Note that this civil standard applies to a court order proceeding EVEN IF it is commenced in conjunction with a prosecution, though of course the prosecution will be decided on the higher 'criminal' standard.

In such a proceeding, the onus of proof lies upon the applicant (party commencing the proceeding), except that if it is alleged that the dog is a pit bull that fact will be assumed unless the owner proves otherwise [DOLA s.4(10)].


3. Section 4(1) Orders Against Dog-Owners Regarding Biting/Attacking/Menacing Incidents

(a) Commencing Allegations under s.4(1)

A proceeding may be commenced in the Ontario Court of Justice for a dog destruction or control order against a DOG-OWNER [cp. to s.4 below, which applies to 'any person'] on the making of ANY of the following formal allegations [DOLA s.4(1)] before a justice of the peace:
  • the dog has bitten or attacked a person or domestic animal;

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

  • the owner did not exercise reasonable precautions to prevent the dog from,

    (i) biting or attacking a person or domestic animal, or

    (ii) behaving in a manner that poses a menace to the safety of persons or domestic animals.
The last of these ["did not exercise reasonable precautions"], is also an offence under DOLA s.5.1. As such an allegation of that nature might conveniently be brought in conjunction with offence proceedings [see Ch.6: "Offences"].

(b) Grounds for s.4(1) Order

The court may make a s.4(1) order IF [DOLA s.4(3)]:
(i) it is satified that an order is necessary for the protection of the public

AND

(ii) that EITHER:

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

OR

the dog's behaviour is such that the dog is a menace to the safety of persons or domestic animals.
(c) Destruction or Control Orders (Non-Pit Bulls)

. Orders Available

A s.4(1) order may require that [DOLA s.4(3)]:
  • the dog be destroyed in the manner specified in the order.

    or, alternatively:

  • 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.
. Factors Considered

In deciding what order to make, the Court may consider the following factors [DOLA s.4(6)]:
  • the dog's past and present temperament and behaviour;

  • the seriousness of the injuries caused by any biting or attack;

  • unusual contributing circumstances tending to justify the dog's actions["provocation"];

  • the improbability that a similar attack will be repeated;

  • the dog's physical potential for inflicting harm;

  • precautions taken by the owner to preclude similar attacks in the future;

  • any other circumstances that the court considers to be relevant.
. Mandatory Destruction Order for Pit Bulls

HOWEVER in any case where grounds for an order are made out AND the dog is a pit bull, the court must order it destroyed [DOLA s.4(8)].

For the definition of a "pit bull", see Ch.5, s.2: "Pit Bulls: Pit Bull Definition and Proof".

Normally in a s.4 DOLA proceeding, the onus of proof lies upon the applicant (party commencing the proceeding), except that if it is alleged that the dog is a pit bull that fact will be assumed unless the owner proves otherwise [DOLA s.4(10)].

. Control Order Terms

Terms of control orders may include, but are not limited to, the [DOLA s.4(4)]:
  • confinement of the dog to its owner's property;

  • restraining the dog by means of a leash;

  • restraining the dog by means of a muzzle;

  • posting of warning signs.
Where a control order is issued, the owner must "ensure that the dog is neutered or spayed, as the case may be, within 30 days of the making of the order or, if the court specifies a different time period, within the time period specified by the court" [DOLA s.4(7)].

. Destruction Order Terms

Where a destruction order is issued and the dog is not taken into custody immediately, the owner must "restrain the dog by means of a leash and muzzle and such other means as the court may order until the dog is taken into custody" [DOLA s.4(5)].

. Additional Order

Where grounds exist for the making of a destruction or control order, the court may also make an order "prohibiting the dog's owner from owning another dog during a specified period of time" [DOLA s.5].

(d) Case Law

. R v Gault

R v Gault (Ont Prov Ct, 1995) was a consideration of whether a control order should be issued after a guilty plea on a dog bite charge [under then DOLA s.5, slightly different in form from the present s.5.1]. The attack was relatively minor but was on a seeing-eye dog by an unleashed border collie. The court declined to issue the order, on considering that the dog was small, normally friendly, the injury relatively minor, and absent any past violent behaviour.

. R v Brenhouse

R v Brenhouse (OCJ, 2003) was a pre-"pit bull ban" s.4 dog bite charge and control order case involving two pit bulls. There was a previous trial and control orders relating to the same dogs, for which order contravention charges were also laid. The court commented on the evidence:
The evidence in the case at bar speaks volumes about the past and present behaviour of these 2 dogs (Bart and Mia) who over a period of several months and on different occasions have attacked and bitten not one but several adult males, who have required medical attention in a hospital for severe lacerations to different parts of their bodies. There is nothing to justify these dogs' actions in indiscriminately attacking passers-by on the street on their way home. These dogs are clearly aggressive animals who, if let out or if they escape, are liable to cause serious bodily harm to smaller persons or children.

The defendant was given more then one opportunity to rectify this ongoing situation. However to a large extent, she chose to ignore the Control Orders that specifically ordered the confinement, restraining, training and registration of these dogs.
Guilty charges were registered on all counts, and the dogs were ordered destroyed.

. R v Solomon

R v Solomon (OCJ, 2005) was a statutory appeal of a lower court s.4 control order for the destruction of a german shepherd. The case involved a prior history of biting children, and a prior 'leash' control order. It was unleashed at the time of the present incident. The court, in denying the appeal, commented:
On the basis of these factual events, I cannot conclude that any of the grounds set out in section 121(1) POA exist that would justify granting the appeal against the finding of liability. The appellant was aware of the dog's tendency to bite. She was aware that a stray dog brought to her home by her boyfriend was having an upsetting effect on her own dog. The previous incident in 2001 should have made her more than usually vigilant about her own dog. Certainly the ensuing court proceeding should have instilled in her the awareness of potential consequences should the dog bite or attack someone else. The fact of a court order requiring that the dog be controlled by leash when outdoors was an unambiguous, specific communication to her of her responsibility. She failed in that responsibility, not only by inadvertences but by deliberate choice to disregard the order and the consequent danger to others.
. R v Calero

R v Calero (OCJ, 2005) was pre-"pit bull ban" dog bite and control order case involving a prolonged (20 minutes) and very serious attack by a pit bull. The court convicted on the charge and ordered the dog destroyed on evidence that it posed a serious future risk, was physically dangerous and had a bad temperment. The court commented:
The evidence in the case at bar speaks volumes about the present behaviour of this dog known as Lennox, who has attacked and severely bitten an adult male. The victim of the attack has required medical attention in a Hospital for severe lacerations to different parts of his body and is clearly traumatized by the attack. There is nothing to justify this dog's actions in indiscriminately attacking someone who was enjoying a walk in the park behind his home. This dog is clearly an aggressive animal that, if he is let out or if he escapes, is liable to cause even more serious harm to smaller persons or children.
The case is procedurally interesting for its focus on the internal documentation and Crown evidence (including a pound identification 'line-up') associated with a seriously-addressed DOLA case (many appear to be handled quite casually).


4. Section 4(1.1) Contravention-Based Orders Against Any Person [Pit Bull Orders]

(a) Commencing Allegations under s.4(1.1)

A proceeding may be commenced in the Ontario Court of Justice against any PERSON [cp. to s.3 above, which only applies to dog-owners] on the making of a formal allegation that the dog-owner has contravened any provision of DOLA, the DOLA "Pit Bull" Regulation, or any DOLA-related order.

These are the same allegations, that if made in the form of an "information", are sufficient to commence a DOLA offence prosecution. As such requests for s.4(1.1) orders may be conveniently brought with offence proceedings [see Ch.6: "Offences"].

In fact, as will be seen below, s.4(1.1) court order requests appear designed specifically to accompany offence prosecutions when the dog is, or is suspected to be, a pit bull.

(b) DOLA Contraventions

The following are the main substantive DOLA violations that might be alleged to commence a s.4(1.1) court order proceeding.

. Failure to Prevent Dog from Biting, Attacking or Menacing

This provision reads [DOLA s.5.1]:
s.5.1
The owner of a dog shall exercise reasonable precautions to prevent it from,

(a) biting or attacking a person or domestic animal; or

(b) behaving in a manner that poses a menace to the safety of persons or domestic animals.
Recall that [DOLA s.1(1)]:
"owner", when used in relation to a dog, includes a person who possesses or harbours the dog and, where the owner is a minor, the person responsible for the custody of the minor;
Basically, if a dog bites, attacks or menaces a person or domestic animal that the owner could reasonably have prevented, then their owner has committed an offence.

. Pit Bull Ban

The pit bull ban is discussed at length in Ch.5: "Pit Bulls". It's main provision - which is subject to the exceptions discussed in Ch.5 (mainly the "restricted pit bull" exception for ownership) - reads [DOLA s.6]:
s.6
Except as permitted by this Act or the regulations, no person shall,

(a) own a pit bull;

(b) breed a pit bull;

(c) transfer a pit bull, whether by sale, gift or otherwise;

(d) abandon a pit bull other than to a pound operated by or on behalf of a municipality, Ontario or a designated body;

(e) allow a pit bull in his or her possession to stray;

(f) import a pit bull into Ontario; or

(g) train a pit bull for fighting.
Again, recall that [DOLA s.1(1)]:
"owner", when used in relation to a dog, includes a person who possesses or harbours the dog and, where the owner is a minor, the person responsible for the custody of the minor;
. Pit Bull Muzzling and Leashing

The Pit Bull Regulation [Reg 157/05] under the Dog Owners' Liability Act contains two mandatory provisions which can become subject of 'contravention' offences, namely:
  • muzzling/leashing of restricted pit bulls [s.1(1)];

  • sterilization of restricted pit bulls [s.2(1)];
What are "restricted pit bulls" (as opposed to "banned pit bulls") is explained in Ch.5.

. Order Violations

It is also an offence to violate any prior DOLA order.

Such orders can include the following:
  • dog destruction and control orders (interim and final) [DOLA s.4(2,3)]

  • dog ownership prohibition [DOLA s.5];

  • compensation or restitution orders made ancillary to DOLA convictions [DOLA s.18(3)]
(c) Comment Regarding s.4(1.1) Orders

In the task of explaining the grounds for, and terms of, s.4(1.1) DOLA 'contravention-based' orders, I find myself in great difficulty.

While the grounds and terms of s.4(1) ['bite/attack/menace'] orders against dog-owners are plainly set out in DOLA s.4(3), this is nowhere done for s.4(1.1) contravention-based orders (which can be made against any "person").

It is tempting - and logical - to infer that the grounds for an order are made out if the contravention alleged is made out, but this is not stated - a remarkable omission for any statute, much less one so closely associated with penal sanction and deprivation of property.

The primary omission seems to be that DOLA s.4(3), which sets out the primary grounds for and terms of s.4 DOLA orders is limited to the s.4(1) situation by virtue of the following phrasing: "(i)f, in a proceeding under sub-section (1), ...". This phrasing is silent with respect to s.4(1.1) and thereby plainly excludes the application of the key s.4(3) provisions.

(d) Conclusion Regarding s.4(1.1) Orders

However, the mandatory pit bull destruction order term does seem to apply to s.4(1.1) proceedings by virtue of DOLA s.4(9), the counterpart to s.4(8) which has the same impact on s.4(1) proceedings:
s.4(9)
When, in a proceeding under this section, the court finds that the owner of a pit bull contravened a provision of this Act or the regulations relating to pit bulls or contravened a court order relating to one or more pit bulls, the court shall make an order under clause 3 (a).
That said, s.4(9) only applies where there has been contravention by a pit bull "owner", not generally against the "persons" against whom the s.4(1.1) contravention allegations may have been made. It seems logical to suppose that these would most often be brought in conjunction with a DOLA offence prosecution [see Ch.6: "Offences"].

Either I have misconstrued DOLA s.4 profoundly, or this is just bad legislative drafting. Given that s.4 establishes a property-depriving regulatory regime in close association with penal sanctions, it is a basic principle of statutory interpretation that they be read strictly in favour of the defendant [Sullivan: Driedger on the Construction of Statutes (3rd ed., 1994), pp.357-362, 371-373].

Therefore, in my opinion, s.4(1.1) court order proceedings can only have application to allegations that a pit bull owner has contravened any one of the DOLA, DOLA Pit Bull Regulation or DOLA-related orders listed in (b) above. That is why I have labelled them "pit bull" orders above.

Note additonally that where grounds exist for the making of a destruction, the court may also make an order "prohibiting the dog's owner from owning another dog during a specified period of time" [DOLA s.5].

(e) Proving "Pit Bull"

For the definition of a "pit bull", see Ch.5, s.2: "Pit Bulls: Pit Bull Definition and Proof".

Normally in a s.4 DOLA proceeding, the onus of proof lies upon the applicant (party commencing the proceeding), except that if it is alleged that the dog is a pit bull that fact will be assumed unless the owner proves otherwise [DOLA s.4(10)].


5. Interim Orders

Pending the outcome of an application for such an order [either under DOLA s.4(1), 4(1.1) or pending the resolution of an appeal of such 'final' orders], the Court may make an interim order "requiring the owner to take measures specified in the interim order for the more effective control of the dog" [DOLA s.4(2)]. Such interim orders are basically to ensure dog control pending the outcome of the main issue (or the appeal, as the case may be).

Terms of such interim orders may include, but are not limited to, the [DOLA s.4(4)]:
  • confinement of the dog to its owner's property;

  • restraining the dog by means of a leash;

  • restraining the dog by means of a muzzle;

  • posting of warning signs.

    Note:
    As a practical matter, any dog-owner facing a s.4 court proceeding may want to consider at least temporary voluntary placement of the subject animal with a willing (and credible) shelter [NOT a pound] - if only to avoid the possibility of legal seizure which automatically places the animal in the normally much less sympathetic pound system.

    Even a court-ordered "interim" confinement order may not be without risks. If a court inadvertently orders a dog into a pound on an interim basis, a literal reading of the ARA s.1(1) "pound" definition captures that animal as a "pound" animal and greater legal complexities can arise [discussed in Ch.3: "Pounds, Shelter and Research"].

    At the very least a judge making a confinement order needs to make it crystal-clear to any pound receiving the animal that it is NOT to be processed in accordance with normal ARA procedures [again, see Ch.3].

6. Appeals

Appeals and reviews of DOLA s.4 orders are also governed under the Provincial Offences Act ["POA"]. The key appeal provisions are linked here:

Provincial Offences Act, Part VII: "Appeals and Reviews" [esp. ss.116-134]

R v Solomon (OCJ, 2005) was a statutory appeal of a lower court s.4 control order for the destruction of a german shepherd. The court discusses the application of the Part VII Provincial Offences Act appeal provisions "with necessary modifications" to s.4 DOLA control order appeals.
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