Appeal Court: Punky a dangerous dog, must be euthanized
In the recent case of Santics v. Vancouver (City) Animal Control Officer 2019 BCSC 24, the fate of Punky, an Australian cattle dog, was decided by the Supreme Court of British Columbia on an appeal from the lower court, the Provincial Court of British Columbia. The appeal concerned the fate of “Punky”, an Australian cattle dog. By order pronounced July 25, 2018, the Honourable Judge W. Lee found that Punky is a “dangerous dog” within the meaning of section 324.1 of the Vancouver Charter, SBC 1953, c 55, and directed that he be euthanized. The proceedings were brought after Punky attacked and injured a woman who was sitting and texting at Locarno Park Extension.
In parallel proceedings, the trial judge convicted Ms. Santics of contravening section 4.14 of the City of Vancouver’s Animal Control By-law No. 9150, which prohibits a person who keeps a dog from permitting, suffering or allowing the dog to bite, attack or injure a person or domestic animal, a strict liability offence. He fined Ms. Santics $1,500, giving her 12 months to pay. That conviction is not under appeal. In addition, Ms. Santics does not challenge the finding that Punky is a dangerous dog.
The appeal focuses on the euthanasia order. Ms. Santics submits that it should be set aside on three grounds:
- the judge erred in law in not considering Ms. Santics’ “property interest” in Punky;
- the judge made a palpable and overriding error in finding that Ms. Santics would not obey court ordered conditions; and
- the judge erred in finding that Punky could not be rehabilitated and should not be adopted.
These three grounds all raise the same question: whether, given the evidence before him, the trial judge should have given Punky another chance, either by ordering that Punky be released to the appellant on strict conditions designed to protect the public, or by staying the euthanasia order to allow a suitable owner to be found. An important aspect of this question is who bears the onus of establishing the dog’s rehabilitative potential.
The person in question was Ms. AP, who testified that she had sat down by the edge of a forested area by Locarno Park Extension, and began to exchange text messages with a friend. Punky, who was off leash, charged AP and sunk his teeth into her leg. He pushed AP down and continued to bite her leg and right hand. Eventually, she was able to grab Punky’s leash and pull him away, testifying that Ms. Santics stood by and did nothing. AP called the police and an ambulance. Further detail is unnecessary except to note that the wounds were serious, including deep puncture wounds to her right leg and right hand, as well as other scrapes, tears, swelling and bruising. The wounds took a month to heal, and have left scarring and, in some areas, a loss of sensation. Having found Punky to be a dangerous dog, the trial judge then had to address the application to have Punky destroyed:
In exercising its powers to make an order under subsection (3), the court may take into consideration the following circumstances:
- The dog’s past and present temperament and behaviour.
- The seriousness of the injuries caused by the biting or attack.
- Unusual contributing circumstances tending to justify the dog’s action.
- 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.
The Provincial Court found that Punky had demonstrated a history of aggressive actions and noted that there had been no evidence to suggest that those actions will change in future. He concluded that the evidence gave rise to a strong likelihood that a similar attack would occur. The trial judge found it notable that Ms. Santics had taken no added precautions during the time between the attack and when Punky was taken into custody. He remarked that while Ms. Santics said that she had taken some courses to learn how to train Punky, she had provided no evidence of that. The trial judge observed that Ms. Santics had received many warnings about the risk posed by Punky and had done little about it. She had purchased a muzzle but was either unable or unwilling to place it on Punky. The judge then remarked on the absence of any expert evidence as to whether there was any possibility that with proper training, Punky could overcome his aggressive tendencies.
In addressing the first issue whether the judge erred in law in not considering Ms. Santics’ “property interest” in Punky, the Supreme Court of BC judge found no error in law. The judge clearly attempted to balance the public interest with Ms. Santics’ “property interest”, although he did not use that term. The judge specifically considered the evidence in the context of whether Punky could overcome his aggressive tendencies, and whether alternatives to euthanasia were reasonable in the circumstances. The alternatives he considered were adoption or returning Punky to Ms. Santics on certain conditions. In doing so, he considered whether there were ways to protect the public without resorting to euthanasia, and concluded that there were not. Whether this conclusion is sustainable is the subject of the next two grounds of appeal. But as a matter of law, the judge saw no error in the judge proceeding the way he did. This ground of appeal failed.
In addressing whether the judge made a palpable and overriding error in finding that Ms. Santics would not obey court ordered conditions, the appellant submitted that the trial judge’s finding in this regard constituted a palpable and overriding error, which is the applicable standard of review. “Palpable” means that the error is clear and obvious on the record. “Overriding” means that it had an impact on the result. The evidence before the Court comprised a significant history of aggressive action on the part of Punky, and of Ms. Santics’ failure to take appropriate steps to control such action notwithstanding specific advice received from veterinarians and trainers. Moreover, there was evidence that supported the judge’s finding that Ms. Santics did not appreciate the seriousness of the risk that Punky poses, and tended to minimize any risk. Related to this, the evidence showed that Ms. Santics tended, without justification, to blame others, including the injured woman, AP, for provoking Punky. In her testimony, Ms. Santics expressed the view that any movement or action could constitute provocation. All of this evidence, taken together, led the judge to conclude that he could not be satisfied that Ms. Santics would follow through with any conditions to the extent required to protect the public. In these circumstances, the Supreme Court judge was unable to say that the judge’s conclusion was erroneous or made without any evidence to support it. This ground of appeal also failed.
In addressing whether the judge erred in finding that Punky could not be rehabilitated and should not be adopted, this ground of appeal turned largely on the question of where the onus lies of demonstrating that Punky was or was not amenable to rehabilitation, or that adoption was a practicable alternative. The question of whether the destruction of a dangerous dog is justified will depend upon balancing the public’s interest in being reasonably safe with what alternatives are available to euthanasia. Is there a viable alternative that preserves the safety of the public? This balancing process must be based on the evidence before the judge. If the owner introduces no expert or other probative evidence, then the judge will be left to determine the matter on the basis of the evidence produced by the animal control officer. Here, sufficient evidence was led by the animal control officer to support the judge’s conclusion. It began with the evidence of the trainer, whose interaction with Punky was not encouraging. It included the evidence of a veterinarian, who understood Ms. Santics brought Punky to him because other veterinarians had all refused to see the dog. The veterinarian described Punky as extremely aggressive, and was unable to perform a physical exam. He strongly advised Ms. Santics to seek the assistance of a behavioural specialist, though he doubted that such assistance would be successful.
The vet was unwilling to treat Punky at the hospital unless the dog was wearing a muzzle and had been heavily sedated. Ms. Santics did not want to medicate the dog, but ultimately returned to the hospital. At that time, the very strong sedative administered by the vet failed to have any effect. The vet declined to examine Punky.
There was also, of course, the evidence of AP, who was attacked and injured by Punky, and evidence from Ms. Santics of previous occasions on which Punky had bitten a trainer, and Ms. Santics herself.
The Court saw all of the evidence, taken together, satisfying the onus on the animal control officer of demonstrating that Punky was dangerous, and established a basis for concluding that euthanasia was justified. It was then open to the appellant to adduce evidence, including expert evidence, to support her contention that Punky was capable of rehabilitation. That has been done by owners in a number of cases. It was not done here.
That Punky was a dangerous dog is not contested. On the whole of the evidence, the judge was not satisfied that Punky’s behaviour could be modified to the extent necessary to protect the public interest. There was evidence to support that conclusion, and in these circumstances, it is not open for the judge to reweigh the evidence.
The Court then turned to the question of adoption. In respect to the issue of adoption, the trial judge did consider the possibility of adoption. Having no evidence of the sort, the judge here was unable to conclude on all of the evidence that a conditional order would ensure the protection of the public. The Supreme Court judge could not say that he was wrong in taking that approach. It does not follow that because a conditional order can be made it should be made. In this case, the appellant has failed to demonstrate that such an order should have been made on the evidence before the trial judge. The trial judge’s conclusion was one which was open to him on the evidence, and it is not for the Supreme Court now to second-guess it. This third and last ground of appeal also failed.
Accordingly, the Supreme Court of B.C. judge dismissed the appeal. The order that Punky shall be humanely euthanized by a qualified veterinarian was stayed for a period of 31 days from the date of release of the Reasons for Judgment, in order to give Ms. Santics an opportunity for further appeal.