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Punky Santics, Canada’s Every Dog, Seeks Leave to the Supreme Court of Canada By Victoria Shroff

One of the most important animal law matters to be heard in a British Columbia courtroom may soon reach the Supreme Court of Canada. Appellant Susan Santics and her dog, Punky, have been literally fighting for Punky’s life in the groundbreaking, high profile case Santics v. Vancouver (City) Animal Control Officer. The case concerns Punky, a young Australian cattle dog who has been labelled “dangerous”.  Punky’s legal team, of which I am part, recently filed leave to appeal to Canada’s highest court, hoping that this unprecedented case saves Punky’s life and helps other animals.

Punky has been incarcerated, effectively on death row, for two years, following an incident in a Vancouver off-leash park where he bit a stranger. We argue that before destroying the life of a sentient animal, the State ought to have a full factual and evidentiary matrix firmly in place. There must not be any doubt that a dog ordered to be put to death must be beyond hope of rehabilitation, based on evidence by an expert such as a veterinarian.

In the Provincial Court of British Columbia, the judge was not satisfied that alternatives to destruction would sufficiently modify Punky’s behavior enough to protect the public interest. The judge ruled that Punky posed an unacceptable risk to the public and ought to be destroyed.[1] In the Provincial Court trial, the Plaintiff was notably without counsel, unsuccessfully representing herself with an experienced prosecutor as opposition. Therefore, at the heart of this case are important, deep-seated issues about justice for animals as well as state power and access to justice for all citizens.

On appeal to the Supreme Court of British Columbia (BCCS), the issue was the legal test applicable to destruction orders for dangerous dog applications. We predicated our argument on the B.C. Supreme Court’s incorrect application of the test at trial in Provincial Court, in Santics v. Vancouver (City) Animal Control Officer[2]. However, the appellate court found sufficient evidence to support the Provincial Court’s decision.

The team then appealed from the BCCS to the B.C. Court of Appeal, (BCCA). We challenged the decision of the BCCS to uphold the destruction order. However, the BCCA took the opportunity – the first in this court – to examine the standard on dangerous dogs outlined in Kuo.[3] British Columbia courts have relied on Capital Regional District v. Kuo[4] since 2006 to allow for conditional release of dangerous dogs given certain conditions and restrictions. But in the Santics appeal in the BCCA, the court denied this longstanding, accepted practice, finding that “contrary to the reasoning in Kuo, once the Provincial Court has found that a dog is likely to kill or seriously injure within the meaning of the Vancouver Charter or the Community Charter, it does not have the jurisdiction to make orders – conditional or otherwise – save for that the dog in question be destroyed”[5] This shocking turnaround forms a crucial point of the appeal to the Supreme Court, as this affects not only Punky’s case but all established case law for dangerous dog cases in British Columbia. This decision of the BCCA has untold legal ramifications: the court stated that the lower court simply has jurisdiction to declare a dog dangerous – i.e. likely to kill or seriously injure in the future – or not. If the dog is dangerous, the only action the court can take is to order its destruction. If it’s deemed to be not dangerous, the dog can be returned to its owner. This decision threatens the long-held practice of lower courts issuing conditional orders so that dangerous dogs could, for example, receive behavioral therapy and/or be released back to owners with certain restrictions in place (e.g. keeping the dog solely on their property). The appellate court’s decision has threatened that established case law.

Although Punky’s appeal was lost, there was a significant victory for animal law and Punky on August 23, 2019, when the BC Court of Appeal ordered an 11th hour reprieve, a stay of execution on the exact day that Punky was going to be destroyed. I argued the contested matter on August 22, 2019 in the BC Court of Appeal, contending that there’s a viable issue of law at stake in this case that would qualify for leave to appeal to the Supreme Court of Canada. I also highlighted the fact that destruction of a dog is, unlike seizure of other “property”, completely irreversible. I read into the record strong animal-centric quotes from superior court justices in Canada (albeit dissents) to highlight the importance of animal lives, including Justice Hoegg’s empathic statement in Baker v. Harmina[6]: “But dogs are more than just animate. People form strong emotional relationships with their dogs and it cannot be seriously argued otherwise.” The protection and rights of animals and how they can access justice are at the heart of the Santics case.

Now that we have appealed to the Supreme Court, the issues are: 1. Whether the Vancouver Charter and Community Charter confer jurisdiction on the Provincial Court to make conditional orders short of destruction; and 2. What the appropriate test is when determining whether a dog is so dangerous that he/she must be destroyed, and who bears the onus in court of satisfying that test. Punky is now referred to as Canada’s Everydog, and his case is of national importance. Not only is his own life is at stake, but this case has changed how the courts will deal with dangerous dog applications, confirming the need for the Supreme Court to take the case.

This CBC clip gives a brief overall impression of the case. https://www.youtube.com/watch?v=AjiKFGB0M_E&feature=youtu.be

Victoria Shroff is credited as one of the first and longest serving animal law lawyers in Canada. She has been practicing animal law for 20 years in downtown Vancouver at Shroff and Associates and is also Adjunct Professor of animal law at Allard School of Law at UBC.  

 

[1] Santics v Vancouver (City) Animal Control Officer, 2019 BCSC 24.

[2] Santics v. Vancouver (City) Animal Control Officer [2019] B.C.J. No. 25

[3] Santics v. Vancouver (City) Aniimal Control, 2019 BCCA 294.

[4] Capital Regional District v. Kuo, 2006 BCSC 1282.

[5] Santics v. Vancouver (City) Aniimal Control, 2019 BCCA 294.

[6] Baker v. Harmina, 2018 NLCA 15

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