On August 29, 2005, new amendments to the Dog Owners’ Liability Act came into effect that prohibit the ownership of pit bulls in Ontario. Renowned Toronto lawyer Clayton Ruby, acting on behalf of Catherine Cochrane and with the support of the Banned Aid Coalition, subsequently filed an application seeking to strike down the new law as unconstitutional.

We asked Mr. Ruby to provide us with an overview of his constitutional challenge.

This is a multifaceted challenge based on several errors we believe exist in the law and/or result from its anticipated application. The primary grounds are:

Overbreadth: The definition of “pit bulls” provided by the legislation captures many dogs that are not dangerous and thereby improperly imposes sanctions on the owners of these dogs. Thus, the means chosen to achieve the government’s purpose, that is the protection of the public from dangerous dogs, is unnecessarily broad and arbitrary

Vagueness: The amendments [include] any dog “that has an appearance and physical characteristics that are substantially similar” to those of a “pit bull terrier.” This is unconstitutionally vague. Individual dog owners may not know and may be unable to judge whether or not their dog falls into the prohibited category. As a result, the public cannot anticipate when or how the law will or will not apply.

Presumption of innocence and the right to a full defense: The Act wrongly forces a dog owner charged with an offense to prove their innocence by demonstrating that their dog is not a restricted animal. In addition, the prosecutor may use a certificate “purporting” to be signed by a member of the Ontario College of Veterinarians, but without any proof required of the signors’ credentials. There is no provision in the act that would allow a dog owner to cross-examine the veterinarian. This is unconstitutional as it impacts on the accused’s presumption of innocence and opportunity to defend themselves before imprisonment.

Division of federal and provincial powers: The Federal government has, under the Animal Pedigree Act, regulated the identification and registration of animal breeds, including dogs. The Canadian Kennel Club is incorporated under the Pedigree Act to identify and define dog breeds in Canada. The Provincial government cannot infringe on areas of law or government that fall under Federal jurisdiction. By defining “pit bulls” as a breed, the Provincial government has waded into an area of Federal competence.

Confident. This is poorly drafted legislation and without foundation. No one is arguing that the need to protect the public from vicious dogs is not a worthy political objective, but there is no scientific or statistical evidence to suggest that this legislation will improve the safety of people in Ontario. Various experts who provided reports and advice to the government prior to the drafting of this legislation were ignored. These experts do not support the legislation as it has been drafted and many are now supporting this challenge.

We are prepared and eager to move forward as quickly as possible. The first step was to file the Notice of Application, which was done on August 29, 2005. The next imminent step is to file all supporting evidence. The application is supported by six affidavits, one from the applicant dog owner and five from various experts. These include a senior member of the Ontario College of Veterinarians, a senior member of The Canadian Kennel Club, a professor of zoology and biology, a professor of veterinary genetics and epidemiology, and a researcher dedicated to looking at the prevalence and history of dog-attack statistics.

The government will respond and file material from their own experts. Both sides will have an opportunity to cross-examine the individuals who submitted affidavits with a view to testing the truth of their arguments and positions. We hope this will be completed before the New Year and we will advise the media once a date is set for argument on our application.

The Act remains in force during the legal challenge. People would be mistaken in thinking that they do not have to comply with the regulations simply because the challenge has been made. However, if someone is charged under the Act and they believe the charge was unlawful, they should contact a lawyer and consider challenging the law. Also, dog owners should realize that until the Court challenge has been heard, they have to comply with both the Dog Owners’ Liability Act itself and the regulations that contain provisions about the use of a muzzle and spaying or neutering pit bulls.

A declaration that the amendments to the Dog Owners’ Liability Act are unconstitutional and therefore of no force and effect. The Court may sever the offending provisions from the overall Act and uphold the remainder. Equally, the Court may find that severance would render the Act incomprehensible or unworkable and may declare the Act as a whole to be invalid. It would then be up to the government to redraft it.

Given the public nature of the debate and the very political nature of the law itself, a loud and positive public voice may encourage the government to reconsider the law. The best way to become more involved is to contact the organizations that are actively supporting the challenge and who continue to organize media and fundraising events.

For more information, visit www.bannedaid.com.