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Breed Specific Legislation - The Challenge of Bill 132
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BSL Update

As I’m sure you are all aware, the courts have upheld the original decision with a few exceptions. The following was received:

“On Friday afternoon, we received the decision on the constitutionality of the 2005 amendments to the Dog Owners’ Liability Act. There are two parts of the ruling of which you should be aware the definition and description of the dogs at issue and the trial process.

First, Justice Herman ruled that the words “pit bull includes” and “pit bull terrier” are unconstitutionally vague. A law must be capable of being meaningfully enforced and not be so vague as to put individuals at risk of arbitrary application of the law. She also ruled that the words “Staffordshire bull terrier”, “American Staffordshire terrier” and “American pit bull terrier” as well as the terminology describing dogs as “substantially similar” to these three specified breeds are constitutional (i.e. not overbroad or vague)

The second part of the ruling is that the process by which the government could introduce a paper certificate for a vet as proof that a dog falls into one of the banned categories has also been found unconstitutional as it infringes the right to a fair trial. What this means is that the government must call live evidence in a trial to prove that a dog falls into one of the banned categories and the accused person will have an opportunity to challenge that evidence by calling his or her own expert. The cost to the government suddenly becomes very high: few cases will justify such an expense if the defence builds up a roster of experts who can testify how hard it is to make this judgment and thereby raise a reasonable doubt on one of the essential elements of the defence, namely the breed of dog in question.

Now that the decision as to the constitutionality of these provisions has been made, we still have to go back before the Judge and argue what the appropriate remedy for the unconstitutional parts of the law should be. Because the word “pit bull” is used throughout the legislation and because the law was meant to in fact ban “pit bulls”, the ruling as to the unconstitutionality of this term may render all portions of the law that rely on that term inoperable, including the restrictions against ownership of “pit bulls” and the regulations about muzzling, etc. The Crown may argue that the judge can correct the legislation by reading “pit bull includes” as “pit bull means”.

In addition to arguments as to the appropriate remedy, there is also the possibility of an appeal from either side. We will eventually appeal that portion of the ruling which found the terms “Staffordshire bull terrier”, American Staffordshire terrier”, “American pit bull terrier” and “substantially similar” constitutional unless the Judge agrees to strike down the amendments as a whole and leave the issue of rectifying the legislation to the legislature. The government may well appeal the rest of the decision that went in our favour.”

Caroline Wawzonek
Ruby & Edwardh
Barristers
11 Prince Arthur Avenue
Toronto, ON M5R 1B2
Tel 416-964-9664
Fax 416-964-8305
 

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Breed Specific Legislation and the Bull Terrier Club of Canada

 

BANNED!!

AUGUST 29, 2005
The new Dog Owners' Liability Act is in effect across the Province of Ontario




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