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B.C. law bares teeth against dogs that attack

Lawyer from Saanich plays major role in prosecuting cases
Troy DeSouza: "All of a sudden, you're bombarded with about 50 emails from Austria, saying: 'Why are you doing this?' "

VANCOUVER — Jeff Clarke started the first day of his retirement, on New Year’s Day last year, taking his 12-year-old dog Charley for a quick morning walk near his Okanagan home.

Charley, a 12-year-old Lhasa-Wheaten Terrier cross, and his owner Clarke, wearing pyjama pants, a jacket, and a tuque, had walked only a few hundred metres when two larger, unfamiliar dogs approached.

Within seconds, Clarke said, “All hell broke loose.”

First, the bigger of the two dogs ran up and bit Charley’s side, Clarke said. Then the second dog attacked, “and he was just relentless. He tore Charley apart.”

“It ended up with me flopping myself over Charley, and the two dogs circling us, wanting to get at him more,” Clarke said.

“But he was just … he was done.”

Clarke took Charley to a vet, who determined he had a punctured lung, among other injuries. The decision was made to put him down.

The attacking dogs, who got loose that morning from the home of Clarke’s neighbour, Drew Panton, were seized by animal-control officers and impounded.

Both of them, a 54-kilogram presa canario named Jake and a 40-kg American bulldog-pit bull cross named Buddy, were declared dangerous.

In September, a provincial court judge in Kelowna ruled that Buddy should be released to Panton, with conditions including muzzling and training. The judge also ruled Jake should be “humanely euthanized.”

Panton filed an appeal, and last month in B.C. Supreme Court at Kelowna, he pleaded to save Jake from being destroyed.

The decision on that appeal, expected in the coming months, will be one of the most significant animal control decisions in recent B.C. legal history.

Panton, a 54-year-old truck driver, said he has “huge hopes for this decision,” not only for his beloved Jake, but for its implications for other B.C. owners of dogs accused of being dangerous.

“I love my dogs as I would any member of my family,” said Panton, who said he has spent tens of thousands of dollars so far on legal efforts, between his own money and funds raised by others. “I’m not going to let it go.”

Clarke, 67, who attended every day of the trial, said: “I’d have liked to see both of them put down, for what I went through and what my dog went through.”

“I’m a dog lover,” Clarke said. “But it could happen again. Why take the chance?”

“The sleepless nights I’ve had,” he said. “I’d hate to see that happen again to anybody else.”

Dog attacks in B.C. have been in the headlines in the past month.

On Christmas Day, two loose dogs entered the Fort St. John home of Robin Elgie and Wendy Lee Baker, attacking the couple and killing their cat. Baker received treatment at a local hospital, while the RCMP said Elgie “had to be airlifted out due to the seriousness of his injuries.”

Days later, twin sisters were attacked in a Richmond park by the dog they were walking. Jessi Mather suffered bad cuts trying to protect her three-year-old son from the dog. Her sister, Kati, received more than 100 bites, a detached bicep and a broken arm.

The dog, a Rotweiler-Husky cross named Yogi, was impounded in Richmond Animal Protection Society.

An online petition calling for Yogi’s release has attracted nearly 17,000 signatures, including some from Mexico, Brazil, Ireland, India and Germany.

Yogi’s owner, Lucas MacNeil, the boyfriend of one of the attacked sisters, took to social media to defend his dog, who, he wrote this month, is “on the edge of being put down.”

MacNeil wrote on Facebook: “I’m looking into getting a lawyer, hearing to speak with a judge.” In another post about Yogi, he wrote last week: “I’ll do anything.”

On Wednesday, City of Richmond spokesman Ted Townsend said: “We have filed an application in provincial court today for the destruction of the animal.”

Yogi will remain “in custody until a court date can be scheduled,” Townsend said.

Lawyer Troy DeSouza, who is based in Saanich, said Section 49 of B.C.’s Community Charter is the only piece of legislation in B.C that “calls for the termination” of a healthy living creature.

“Think about that. It’s like capital punishment,” DeSouza said. “So it’s a powerful thing.”

Section 49 sets out the legal powers of local governments to deal with dangerous dogs, including seizing them, and, in cases such as Yogi’s, seeking a court order to euthanize the animal.

When dogs attack and are subsequently declared dangerous and ordered destroyed, some owners, like Panton in the Okanagan, hire lawyers and mount challenges to save their dogs from what has been called “doggie death row.”

This can lead to long, costly, and emotionally charged court challenges.

Dave Smith, the owner of a dog spared from death row in 2013 by a B.C. Supreme Court appeal, said his legal fight took two years and cost more than $50,000 to keep his dog, Diesel, alive.

Diesel’s case cost the Regional District of the Central Okanagan about $95,000 in legal costs and impound fees, said district spokesman Bruce Smith, adding: “These cases are becoming a significant cost to the regional district.”

At multi-day trials where judges hear testimony from experts, investigators, and eyewitnesses, Section 49 legal challenges often feature lawyers representing two opposing sides, not unlike criminal trials for two-legged British Columbians.

DeSouza is a partner at Dominion GovLaw, a firm specializing in government legal services. Municipalities enlist his services in attempting to restrict the conditions under which a dog is released, or to have the animal put down. DeSouza’s role in Section 49 challenges is not unlike a Crown prosecutor for dogs who have been deemed dangerous, he said, and he has worked on more than 50 such cases.

On the other side of the courtroom, animal-law lawyers like Rebeka Breder defend dog owners fighting to keep their pets alive. “I deal with anything from off-leash issues, to dog bites, to what I call dogs on death row,” said Breder, who works for Boughton Law in Vancouver and has been involved in dozens of Section 49 cases.

“There’s no denying that it is a personal passion of mine as well,” said Breder.

She said she has a “soft spot” for these so-called dangerous dogs, who are well-loved by their owners but “unloved by the public.”

Breder said she and DeSouza have “very, very different perspectives on Section 49.”

The Supreme Court appeal decision challenging Jake’s destruction order, which DeSouza expects within the next month from B.C. Supreme Court in Kelowna, will be B.C.’s “most significant decision on animal control” in the last decade, he said.

DeSouza pointed to a 2006 B.C. Supreme Court ruling that gave judges greater discretion on how to enforce Section 49, he said, and potentially “puts dangerous dogs back on the streets.”

DeSouza said he hopes the court decision on Jake’s fate will provide more clarity “about what judges can and cannot do.”

Breder said she’s also awaiting the decision on Jake’s case, but “vehemently” disagrees with DeSouza’s view of how the current legislation should be applied, and disputed his statement about greater discretion putting “dangerous dogs back on the streets.”

On the contrary, she said, if judges had less discretion on Section 49, it could mean animals were needlessly killed, and “it would take away a judge’s discretion and rights to save a dog’s life when it should be saved.”

“Section 49 is a far cry from granting equal rights to both cities and dog owners. It is much more favourable to the city,” Breder said. “There are very few rights given to owners of alleged dangerous dogs.”

Breder said some dogs that have attacked could be released with conditions, like Panton’s dog Buddy.

DeSouza said he loves dogs, and his work “is all about public safety.”

But he is not a popular figure among some B.C. dog owners.

Panton, Jake and Buddy’s owner, said: “That guy has killed more dogs than heartworm.”

“He lives to kill dogs,” said Diesel’s owner, Smith.

Sometimes, community newspaper stories about Section 49 cases in places like Peachland attract the attention of animal lovers across the globe.

“All of a sudden, you’re bombarded with about 50 emails from Austria, saying: ‘Why are you doing this?’ ” DeSouza said, adding that he has even received phone calls from overseas. “That’s the nature of it.”

The public hostility can be harsh, said DeSouza, “and I have the bites on my back to prove it.”

“But I have thick skin,” he said. “I don’t take anything personally. We have to take it from the aspect of public safety, especially for children. I’m thinking about other people’s children, I’m thinking about my own children.“

“It’s one thing for adults to be bitten, as traumatic as it can be, but can you imagine the child who’s been seriously bitten? I saw this boy who’s had his cheek taken out of him in Kelowna. And I’m looking at those kids and looking at what they have to deal with, not just the physical injury, but the emotional injury, for the rest of their lives,” he said. “So we do need to keep dangerous dogs off the streets. And if we can do it with the consent of owners, that’s great. But if we can’t, then we’ll just ask a judge to do it.”