Justice NOT Served
May 10, 2013 § 3 Comments
A case went through the court in Perth Ontario today.
The case had to do with a landowner who shot a neighbours dog.
This is the rundown…
The landowner has several horses staying at their property for two months. So the horses are new to the area, and the neighbours two dogs ran over to see the horses. In the first incident on June 6, 2012 the dogs were playing in the field, not bothering the horses at all – this according to the landowner. Then, on June 9th, the landowners were out fencing and saw the dogs again. When they attempted to run the dogs off, the dogs then went towards the horses. According to the landowners, the dogs were barking and started “nipping at the horses heels”. At that point they fired a gun into the ground and scared the dogs off.
The landowner followed the dogs home and confronted the neighbour on that day. The landowner told the neighbour that if the dogs came back on the property around the horses, the dogs would be shot. The landowner waved a handful of bullets at the neighbour.
A few days later (June 18th to be precise), when the neighbour stepped in their house to retrieve something, the two large young dogs took off. They ran back to the landowners land, and were again playing with the horses. By the landowners own account, the dogs were not actually chasing or attacking the horses – but they seemed more playful. The horses were milling about a bit more because of the dogs, and some were jogging around.
The landowner, who was alone on this particular day (read: no independent witnesses – or even familial witnesses) went directly to the house and retrieved a gun. When the landowner walked back out towards where the dogs were, one dog ran off, and the other came running up towards the landowner in a friendly and playful manner. The landowner aimed the gun at the dog. The dog started running away from the landowner (coincidentally in the direction of the horses). The landowner shot the dog. Dead.
Then the landowner tied a rope around the dead dog and dragged it into the bushes so it wouldn’t “stink up the pasture”.
The neighbour called police when only the one dog returned, and said they were concerned the landowner might have shot their dog since they’d threatened it just days earlier.
The police came out to talk to the neighbour, and while they were there they witnessed the landowner pull up, put the dog beside the driveway, and drive away. I believe the landowner said something to the effect of “here’s your dog”.
<Edit in: The landowner was arrested at this time. They did not drive away.>
I want to point out a few things:
This was only the second time the dogs were near the horses.
They were not aggressive in any way.
They were young dogs.
The horses were new to the pasture.
The horses were not going to be staying longer than a couple of months (temporary).
What I get from that is…
This hadn’t been an ongoing problem.
It is apparently expected of any young dog to learn from a single incident.
If something in their environment changed (the addition of horses, lets say), they shouldn’t be curious about them.
It doesn’t matter that the horses weren’t permanent residents, that they’d be gone shortly anyway, so why bother working with the neighbour for that short time.
The landowner was charged with uttering threats (regarding waving bullets around and intimidating the neighbour) and with killing an animal. The Crown Prosecutor was asking for two months in jail.
Of course the “Ontario Landowners Association” (basically the farmers association) were keenly interested in the outcome of this case. Why? Because they don’t believe anyone has a right to tell them anything about anything when it comes to “their land”. They think they should be above the laws when it comes to animal welfare.
I think the landowner went way overboard in what they did. I’m utterly disgusted that someone would shoot a dog that wasn’t actually even NEAR the livestock at the time. And when the dog WAS near the livestock, it wasn’t biting, acting aggressively, or anything of that nature. When asked why the landowner shot the dog, the response was ‘because it was my (the landowners) rights to do so’.
Yet, according to the LAW, as it is written, the landowner was NOT within their rights. The law is below, with an explanation of it by lawyers (Link):
The provincial Livestock, Poultry and Honey Bee Protection Act reads:
Any person may kill a dog,
(a) that is found killing or injuring livestock or poultry;
(c) that is found straying at any time, and not under proper control, upon premises where livestock or poultry are habitually kept.
Note: It is essential to read the Yuke v Angus case (below) before interpreting this provision.
Relevant statutory definitions for this provision are:
“injured” in respect of livestock or poultry means
injured by wounding, worrying or pursuing, and “injury” has a corresponding meaning;
“livestock” means cattle, fur-bearing animals, goats, horses, rabbits, sheep or swine;
“poultry” includes game birds where game birds are kept pursuant to a licence under the Fish and Wildlife Conservation Act, 1997;
Note that the repealed “(b)” provision allowed the general killing of dogs ‘running at large’ between sunset and sundown in rural areas, as has in past been common municipal practice [the provision is quoted verbatim below in the Yuke v Angus discussion].
(c) Yuke v Angus (Ont Prov Ct, 1995)
As is discussed at the “Animals and the Criminal Law” Guide reference (s.1, above) the balancing act that a livestock owner must engage in is that between the Livestock, Poultry and Honey Bee Protection Act (above) and the s.445(1) Criminal Code provision respecting what I call ‘kept non-cattle animals and birds’.
Yuke v Angus (Ont Prov Ct, 1995) was an interesting “kept non-cattle animals and birds” private criminal prosecution involving the admitted killing of the prosecutor’s dog which was trespassing on the neighbour defendant’s property. The neighbour kept cattle, but the dog was not close to them when shot.
The court considered two defences, one under the common law (killing dog while it attacks is justified) and the other statutory, under the Livestock, Poultry and Bee Protection Act, s.2 (quoted below in its form at the time).
The common law defence was dismissed on the fact that no attack was taking place, the court quoting from R v Comber (Ont Co Ct, 1975):
There are certain occasions when a dog may be lawfully killed and it has been held that where it is attacking domestic animals, the owner of such animals is entitled, if he catches the dog in the course of such attack, to protect his property by killing the dog. However, once the attack is over, he is not entitled to follow the dog to its place of residence or indeed, I rather gather from the authorities, is he entitled to shoot the dog unless it is in the act of attacking the animals in question.
The statutory defence was grounded in s.2 of the Livestock, Poultry and Bee Protection Act, which read at that time:
2. Any person may kill a dog,
(a) that is found killing or injuring livestock or poultry;
(b) that in a township or village is found between sunset and sunrise straying from the premises where the dog is habitually kept;
(c) that is found straying at any time, and not under proper control, upon premises where livestock [or] poultry are habitually kept.
[* note that sub-sec (b) was repealed in 2002, but that the remainder of the provision is identical today]
Focussing on sub-sec. (c), the court distinguished it’s application to the facts at hand on the reasoning that the term “premises” did not equate with “property”, and that the area where the dog was shot (distant from the cattle) was not in fact “premises where livestock or poultry are habitually kept”. A conviction was therefore entered.
While it was not material to the case, the court commented that if the killing were justified, there was no requirement of a warning shot before a killing shot. Other cases cited in Yuke suggest a dog-lenient interpretation of (c) in such circumstances.
I love this lawyers explanation. And from that explanation, you may get where I’m going.
The dog was NOT attacking the animals when it was shot.
And therefore, the landowner should have been convicted.
Wait, what about the part where it says “that is found straying at any time, and not under proper control, upon premises where livestock [or] poultry are habitually kept.” you ask?
Well, livestock is NOT habitually kept there (unless you consider a temporary situation of under two months “habitual”).
The landowner even called the Ministry asking if they were allowed to shoot a dog for “running deer on my property”! Talk about trying to come up with a defense! When told no, they weren’t allowed to shoot dogs for that reason, then the landowner asked if they could shoot a dog for bothering livestock!
Speaking as a Horse Owner
Horses are not wilting lillies! They are large, strong animals that can kick and bite. Any horse owner knows that even the most spoiled horse on the planet can kill a dog with one kick. Yes, horses have been attacked and severely injured and even killed by packs of dogs. And yes, any horse owner has the right to have their horses on their property and have those horses live a quiet, peaceful life. There are points for each “side”. But I’m coming from both sides of this. My dogs have taken off before. I’ve worried that someone might shoot them (and have been warned by locals – to Perth – that deer hunters would shoot them for “running deer” and farmers would shoot them just for “being on their property”). Lucky for me my dogs have grown up, and are more “home-bodies” now.
All that being said, I think the landowner in this situation not only broke the law, they broke the spirit of the law.
The Rest of the Story
Now, I’ve very carefully written the above to not reveal anything about the landowner in particular, as I didn’t want any bias based on that persons sex or age. The landowner happens to be 75 years old. And a woman.
Now, I get not sending a 75 year old grandmother to jail… but why not find her guilty like the law says she should be, and give her a fine and probation?
I am wondering why there was not one whisper of this story in the news.
I’m also wondering how the Landowners Association got wind of it, and showed up en mass to this courthouse, while no one else ever heard about it? I can only guess they were “called in”.
And finally, I’m wondering where the justice for the neighbour is.