Help For Macey's Owner
Donation protected
Macey is a beautiful now almost 3yo black German Shepherd puppy that was sentenced to death by the Nanaimo Animal Control Shelter and the City of Nanaimo for 'nipping' three people, with only one person getting an injury; and the second person Macey 'nipped' was the 'dog trainer' Macey's owner hired after Macey nipped the first person. All three incidents took place inside Macey's home. NONE of these incidents fall under the statutes for an 'aggressive' dog to be killed for a number of reasons, which the TRULY Honourable Judge B. Harvey details in his decision.
Michael Aubie is a single father of 4 children ages 9 to 14 and the soon to be famous Macey. Mr. Aubie is a brilliant man and is a university student in Computer Science at VIU Nanaimo. As you will see in this video and the judge's decision, this case was a complete sham orchestrated by Ian Fraser, the owner of the Nanaimo Animal Control Shelter. Macey was seized in August, 2018 at which time Mr. Aubie, after being turned down by almost 30 dog trainers in British Columbia, luckily found me and asked for my help. As soon as Ian Fraser was informed about who I was, as he was not aware of me previously, he forbid Mr. Aubie to hire me for this case and told him I was not going to be allowed to see or assess Macey. Mr. Aubie had a legal right to hire any dog trainer or behaviourist he wanted to, but Nanaimo doesn't care about your legal rights. The videos of my dogs and I with Macey were recorded in January, 2019, 5 months after Macey was seized, as this is how long it took the judge to make a decision on me being allowed to see and assess Macey. No dog trainer would help him and they fought with everything they had to stop the only person who would help him. This video and the judge's decision will make it very clear Why? At the end of the video I expected that they would see that Macey was not dangerous or aggressive, and as I explained to them, she was just an insecure puppy that needed leaders, parents in the human world, and she would be released. But no, the court was told by their trainer Lisbeth Plant that, and this verbatim, you can check the court records, “Macey is only acting normal and happy with Mr. Griffiths because she is fearful that if she shows any fear he will beat her.” So, as a result, Mr. Aubie had to continue to fight to save Macey for 11 more months, which was only a total of 3 more days in court, while the city Lawyer now objected to me testifying on Macey's and Michael's behalf. They were hell bent on killing this puppy and if it was not for those videos of my dogs and I with Macey, as the judge asserts, Macey more than likely would have been killed.
Mr. Aubie used what he had in his life savings, $5,000, to defend and save his puppy. He hired a lawyer and when the money ran out after only 3 days in court, which took 5 months because of the city's constant objections to literally everything, I mean everything, Mr. Aubie wanted to submit to the court as evidence. What the City of Nanaimo and the Nanaimo Animal Control Shelter put Macey and her family through was an outrage.
I am hoping to raise $5,000 to reimburse Mr. Aubie the life savings he lost fighting this case against his puppy that should have never proceeded to court after I saw Macey that day in January, 2019. Also, due to his limited financial means at this time while in university, Mr. Aubie and his young, large family live in a small townhouse with no fenced yard. Any and all moneys raised above $5,000 will go towards helping Mr. Aubie find a larger home to live in outside the city limits of Nanaimo, I'm sure you can understand why, with a fenced yard where he and his young family and Macey can grow and thrive together in peace and balance. If anyone has a rental that they think would be a good fit, we would love to hear from you.
Below you will find the complete judge's decision in this case.
Since I am unable to italicize or underline words in this post, I will be capitalizing sentences and words that are of extreme importance to this case and the judges decision. I am not yelling. LOL. Peace.
{All sentences in brackets are comments I make for further clarification of what is being said.}
Date: November 26, 2019
File No: 74687
Registry: Nanaimo
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
IN THE MATTER OF AN APPLICATION BY
THE CITY OF NANAIMO
PURSUANT TO SECTION 49 OF THE COMMUNITY CHARTER, S.B.C.2003, CHAPTER 26,
AND
IN THE MATTER OF MICHAEL AUBIE
AND
THE DOG MACEY
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE B. HARVEY
Counsel for the City of Nanaimo: J. Plonka
Appearing on his own behalf: M. Aubie
Place of Hearing: Nanaimo, B.C.
Dates of Hearing: January 23, March 1, April 3, November 6, 7, 8, 2019
Date of Judgment: November 26, 201 9
Introduction:
1. The city of Nanaimo has applied for a finding that Macey, a black German shepherd dog, be declared a dangerous dog pursuant to sections 49(1)(a) and (c) of the Community Charter S.B.C. 2003 Chapter 26 and that either this dog be humanely euthanized or, in the alternative, be released to the dog's owner Mr. Aubie.
2. Pursuant to the Santics decision referenced later in these reasons, conditional orders of release are no longer an option for this court. {This means that in British Columbia the dog can only be euthanized or returned to the owner.}
The Issue:
3. The issue for this court to decide now is whether the City of Nanaimo, on a balance of probabilities, satisfied the court that:
Macey is a dangerous dog; and
If such a finding is made, what should be the fate of this dog?
4. This evidence in this case was heard over 6 days {Which took 16 months to do}. It concluded after submissions on November 8, 2019. Mr. Aubie, Macey's owner, became self-represented midway through the Trial.
The Facts:
5. In order to achieve my decision in this matter, I will briefly deal with the evidence that I have heard and read in the exhibits in this case.
6. The City of Nanaimo called the following six witnesses in its case against Macey's owner, Mr. Aubie.
Brittany Desousa;
Jennifer Belanger;
Karen Hoard;
Lisbeth Plant;
Amber Knapman; and
Justin Dishkin
7. Jennifer Belanger is a social worker with the Ministry of Children and Family Development (M.C.F.D). On November 15, 2017 Ms. Belanger was visiting the family home of Mr. Aubie as part of her M.C.F.D. duties. Whilst in the Aubie residence, Ms. Belanger headed upstairs where the dog Macey approached and grabbed at the social worker's right arm and then proceeded to hold onto the social worker near her right elbow. The grab, which was referred to as a bite, did not at all puncture the skin of Ms. Belanger. She had been wearing a rain jacket, along with a longer sleeved shirt. Ms. Belanger did receive marks or, both her jacket and underlying skin, the latter resulting in a bruise approximately the size of a quarter. Although a report was filed by Ms. Belanger with WorkSafe BC, Ms. Belanger did not seek out any medical treatment for this incident. Otherwise, the home visit went on as scheduled with the dog Macey still in tho home without further issue.
8. Karen Hoard was working as a dog trainer as an independent contractor for Best Paw Forward. Macey's owner, Mr. Aubie had contacted Best Paw Forward to arrange some training for his dog. As a consequence Ms. Hoard attended at the home on February 14, 2018 for an initial visit. Ms. Hoard testified Macey was a black female German shepherd dog that weighed approximately 60-70 pounds at the time.
9. At approximately 4pm on the date in question, Ms. Hoard testified that the dog was barking at her so Ms Hoard asked for the owner and dog to go outside so that Ms. Hoard could observe the dog. After a short period of observation she asked the owner to return with the dog inside. Ms. Hoard advised the court Macey looked nervous, fearful and was protecting her home.
10. After Macey was put back into her crate inside the residence, Ms. Hoard and the owner, Mr. Aubie, spoke. During this time Macey continued to bark. At some point thereafter Ms. Hoard asked Mr. Aubie to remove Macey from her crate and instructed the owner to let Macey go. As a consequence of Ms. Hoard's instructions to Mr. Aubie, Macey went towards the trainer Ms. Hoard and bit her on the upper right thigh and right buttock area. As a result, the dog trainer had pants that were ripped and the bites broke the skin of Ms. Hoard, but on her thigh only. Notwithstanding this incident, the lesson continued for a further thirty to forty minutes. Ms. Hoard did later attend a walk-in medical clinic in order to receive some medical treatment. However, as the bite did not puncture her skin, Ms. Hoard received only skin surface marks, including a large bruise on her thigh. The end result was Ms. Hoard was ultimately prescribed a course of antibiotics and advised to use polysporin for the affected areas.
11. Brittany Desousa testified that On April 7, 2018 she attended at Mr. Aubie's home with her son Nathaniel for the purposes of a birthday party invitation. After the door was knocked, the dog Macey was in attendance at or near the doorway and was barking. After a brief discussion with the youth who had answered the door, Macey then nipped at Ms. Desousa's son's arm so Ms. Desousa then smacked her son's arm and that resulted in the dog losing its very brief hold on the child's arm.
12. Ms. Desousa then knocked on the door subsequently; but no one came, so she departed with her son. Ms. Desousa described that her son received a pinch wound although there was no scarring nor was the skin broken. There was no medical attention sought by Ms. Desousa for this incident. Ms. Desousa also indicated in cross-examination that she was not fearful of Macey.
13. Lisbeth Plant, by consent of counsel for Mr. Aubie at the time, was declared an expert by the court with respect to the following after a brief Voir Dire:
• In making assessments as to whether or not a dog is aggressive and dangerous;
• tn the likelihood of the dog, in the future, attacking and killing or seriously injuring a person or another domestic animal; and
• In the training and rehabilitating of aggressive and dangerous dogs.
14. Ms. Plant testified over two days and was cross-examined at some length by counsel for Mr. Aubie as well as by Mr. Aubie directly after he became self-represented during these proceedings.
15. Ms. Plant gave an opinion after having tested Macey on December 11, 2018 when Macey was at the Nanaimo Animal Control Shelter. Ms. Plant used several decoys in order to perform her analysis on Macey. Her opinion was that Macey had a behaviour that indicated fear aggression as well as territorial aggression.
16. Notwithstanding those opinions, the expert indicated in her report at page 19 that rehabilitation should still be attempted with the dog, including making several recommendations for a safe management protocol.
17. In Ms. Plant's supplemental report dated February 25, 2019, she did not alter her opinion but indicated the following at the close of her report under the heading "comment":
"The shelter environment is a stressful environment can be expected to have a negative effect on the emotional health of any dog placed in it. {Finally, one of their own admitting to what I have been saying for years. As is seen in my numerous videos, all the dangerous and aggressive dogs here live together in peace and balance in my little home.} In saying that, I am gratified to see that staff are continuing to work with her, and even though it is not taking the form of behaviour modification for her particular fear issues, the positive reinforcement training serves to increase her confidence as well as her quality of life."
18. Amber Knapman testified that she is a kennel keeper with the Nanaimo Animal Control and has been there since April 4, 2018. For five days a week one of her duties is to look after Macey. Macey is stored in an area that is separate from other animals, given she has a vicious dog designation as a result of her impoundment.
19. Since Macey has been in the care of the Nanaimo Animal Control, some fifteen plus months now, Ms. Knapman indicates that Macey is very excited to see her each day and that she has been making some improvements. Macey has no difficulty having a muzzle placed on her {The video shows this is NOT the case.} and when she gets to know a stranger, there have been no issues with her. However, Ms. Knapman would feel uncomfortable with Macey being released at this time because the kennel keeper believed that Macey still poses a threat to public safety given the past incidents that led to her impoundment. Ms. Knapman did not train or arrange for Macey to encounter strangers or other dogs whilst on walks but advised it was the other officers who walked Macey.
20. Justin Dishkin is now a Bylaw Officer for the City of Nanaimo. At the relevant time when Macey was apprehended, he was the Animal Control Officer for the City of Nanaimo. Mr. Dishkin testified about his reasonable and probable grounds as to why he believed this dog was still dangerous. {When Macey was seized, Mr. Dishkin wanted to put her in the back of a canopied pickup truck with a chain, rebar and power tools loose in the the back that would be dangerous to Macey in the event of an accident. Macey's owner seeing this risk insisted that Macey be put into a different vehicle. Mr. Dishkin didn't think there was a safety issue with Macey riding in the back of a truck with all those loose, heavy metal objects and tools. There was a police officer there that Mr. Aubie asked to transport Macey in his vehicle, a canine unit SUV, which he did.}
They included the following:
• The dog seemed un-socialized;
• The dog's temperament;
• The fact that she had bitten three people; and
• No training was followed up with Mr. Aubie to his knowledge. {This was a common argument of the city, that Mr. Aubie made no attempt to get training for his dog. Seriously? The second person Macey nipped was the 'dog trainer' Mr. Aubie hired after Macey nipped the first person. Mr. Aubie also contacted Lisbeth Plant at that time and she refused to help him because she does not work with or board and train aggressive dogs. And this is the city's 'expert' on aggressive dogs? Once Macey was seized, Mr. Aubie contacted over 30 dog trainers in the province, including the mainland, and they ALL refused to help him, with many even stating his dog should be killed because of what she did,without even meeting the dog. That's what you call an 'industry standard', when we can't help them, kill them. That is when Mr. Aubie heard about and contacted me. Macey is now alive because of that. More TRUTH about 'treat based positive reinforcement only' 'dog trainers'.} Notwithstanding the above comments the Bylaw Officer indicated that there were discussions about the return of Macey to Mr. Aubie on conditions prior to her ultimate impoundment.
21. Nevertheless, Mr. Dishkin is still of the opinion that Macey will seriously injure someone in the future.
22. When asked, while still in chief, if the dog poses a risk by barking, his response was "it can for sure". {A barking dog poses threat to the public? Now they're are going to kill dogs just for barking?} To his mind, the biggest factor was both the child and social worker incidents in the house. It was also significant to the bylaw officer that there was more than one bite. Counsel for the city of Nanaimo posed a question to Mr. Dishkin along the following lines: 'Well, what do you say then that all dogs can bite?" Mr. Dishkin's response was "they don't".
23. That is a brief summary of the evidence led for City of Nanaimo against Mr. Aubie.
24. Mr. Aubie, the dog's owner, then called the following witness in response to the City's case:
• Aurora Jepson
25. Ms. Jepson has a two year old German shepherd that, unfortunately, had some behavioural issues. After trying a number of trainers, her and her partner ultimately received some significant progress with the use of Mr. Ken Griffiths, a behaviourist trainer that has also worked with Macey at the Nanaimo Animal Control Shelter. Ms. Jepson indicated the results with her dog have been impressive and at a fraction of the cost spent on other trainers. {The 'dog trainer' that Ms. Jepson hired in Nanaimo charged her and her partner, a young couple just starting out in life with limited financial means, $3,000 for 21 days of board and train and did absolutely nothing to correct her dog's behaviour. I had her dog back to a balanced and respectful state of mind in less than 2 hours for $200 plus travel. If her dog needed to come here for rehabilitation, the cost would have been $500 for 7 days. It's your money. It's your choice, now that you know you have one.} Moreover, Ms. Jepson has never witnessed Mr. Griffiths lose his temper around her dog and looks forward to continue to work with him given the positive results she has received to date.
Community Charter and Case :
26. The relevant section of the statute in question is set out in section 49 (1) of the Community Charter S.B.C. 2003 Chapter 26 which states the following in part:
49 (1) In this section:
"dangerous dog" means a dog that
(a) has killed or seriously injured a person,
(b) has killed or seriously injured a domestic animal, while in a public place or while on private property, other than property owned or occupied by the person responsible for the dog, or
(c) an animal control officer has reasonable grounds to believe is likely to kill or seriously 1njure a person.
(10) In addition to any other authority, if an animal control officer has reasonable grounds to believe that a dog is a dangerous dog, the officer may apply to the Provincial Court for an order that the dog be destroyed in the manner specified in the order.
27. The court had the following case law authorities provided to it:
1. R. v Dempster(1995) CanLii 1668 (BCCA);
2 Community Charter v. Whittle (2005) BCPC 610;
3. Smith' v. Central Okanagan (Regional District) (2013) BCSC 1063;
4. New Westminster Animal Control v. Letendre (2010) BCPC 38;
5. R. v. Kuceras (2001) BCPC 0360;
6. Santics v. Vancouver (City) Animal Control Officer (2019) BCSC 24 and (2019) BCCA 294;
7. City of Campbell River v. Awed (2016) BCPC 431;
8. R. v. Douglas (2019) BCPC 80;
9. Regional District of Kitimat-Stikine v. MacNeil (Unreported) February 23, 2013 (BCPC).
28. I have reviewed all of the cases submitted by the parties. Of course, each case is fact specific. Whilst each case authority is instructive in its own fact specific scenario, this court must nevertheless apply the principles enunciated in the cases provided, including Santics, to the facts in the case at bar.
29. What has not changed, however, is the twofold sections of the Community Charter applicable to this case, namely sections 49(1 )(a) and (c). Subsection (a) deals with whether Macey has seriously injured a person and subsection (c) deals with whether the animal control officer has a reasonable grounds to believe Macey is likely to kill or seriously injure a person and whether that belief is objectively reasonable in all the circumstances.
30. Additionally, even if there is a finding that Macey is dangerous, the court may go on to consider whether she poses an "unacceptable risk to the public".
Position of the Parties
31. Counsel for the City of Nanaimo argued that that there is sufficient evidence to prove that Macey continues to be a dangerous dog given the three incidents in question. Moreover, it is the City of Nanaimo's position that Mr. Dishkin's opinion is that Macey is likely to kill or seriously injure a person. Counsel for the City argued that this was a reasonable position in all the circumstances. Additionally, it was argued that the evidence of kennel keeper Knapman was also a relevant factor for the court to consider.
32. It is the City's ultimate position that the only reasonable option for the court is destruction of the dog. That being said, counsel for the City of Nanaimo also acknowledged that there is a second step that flows from Santics, namely that even if this court were to make a finding of "dangerous" as defined in the statute, the court can go on to consider whether Macey does not pose an "unacceptable risk to the public". If that were the case, counsel for the City of Nanaimo acknowledged the court can then dismiss the application for destruction and release the dog back to its owner. Counsel strenuously attempted to persuade this court that Macey still poses an unacceptable risk to the public and therefore, she must be destroyed.
33. Mr. Aubie, on the other hand also gave, as best he could, closing submissions that his dog should not be destroyed. Firstly, he referenced the fact that his dog was grabbed inappropriately by kennel keeper Knapman on the back of her lower neck area prior to being initially muzzled for the decoy tests with Ms. Plant. Secondly, Mr. Aubie argued that there were also gunshots audibly heard outside the shelter when Macey was participating in Ms. Plant's decoy assessments. Thirdly, Mr. Aubie also argued that when Mr. Ken Griffiths went to see Macey, Macey had no issues with either him, a complete stranger, nor with any other dog whilst under observation at the Nanaimo animal control shelter.
34. Mr. Aubie referenced the two more minor incidents of the social worker and the young child. Additionally, but for the dog trainer Ms. Hoard's actions inside his own home, he stated she likely would not have been bitten. Lastly, and importantly, Mr. Aubie stressed the time gaps between all of the incidents concerning Macey. In addition, he stressed the length of time without any further occurrence from the last minor incident of the young child to Macey's ultimate impoundment on August 7, 2018.
35. Therefore, it is Mr. Aubie's position, in any event, that Macey does not pose an unacceptable risk to the public and the application for destruction of Macey by the City of Nanaimo ought to be dismissed.
Analysis:
36. It must be remembered that courts regularly deal with conflicting evidence in both civil and criminal cases. What remains essential is that the City of Nanaimo bears the onus of proof on a balance of probabilities throughout in the case at bar. However, the evidence must be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test.
37. When analyzing the evidence as a whole and reviewing the exhibits I must say that my overall impression was that all witnesses gave, as best they could, candid and straightforward testimony. That being said, this court still has to decide whether the City's application for destruction of this dog should occur or whether the dog may be returned to its owner.
38. What is clear from the evidence I have heard is that this young dog has nipped at or bitten three persons at the dog owner's own property and only one of those persons, Ms Hoard, had any injury. Moreover, there was no evidence led that Macey has ever attacked or bitten another animal. There was also no evidence that Macey has attacked another person, be it an adult or child, outside of the dog owner's residence. Additionally, over the last fifteen plus months that Macey has been impounded in the Nanaimo animal control shelter, there have not been any other incidents. If such were the case, then this court surely would have heard about any such incidents.
39. I also find it important that all the incidents were separated by a number of months and that Macey was impounded some four plus months after the last incident involving the young child. I find that, in all the circumstances, the last incident involving the young child was a minor one.
40. To assess the future risk of Macey, the court has the opinions of Ms. Plant, Ms. Knapman and Mr. Dishkin. Ms. Knapman and Mr, Dishkin gave their lay opinions on the matter at hand. I find the opinions of ms. Knapman, and particularly former animal control officer Mr. Dishkin, problematic.
41. Dealing first with Ms. Knapman; she has no formal training in dog behaviour, nor is she a trainer. Ms. Knapman has simply been in charge of looking after Macey on a day-to-day basis with her primary responsibilities of feeding and caring for Macey's surroundings at the Nanaimo animal control shelter. She had little to no information about Macey's past history in relation to Macey being out in the public realm. Of course, Ms. Knapman has no prior history of the dog's environment, nor has had any opportunity to see her interact with other dogs or humans prior to her involvement in this matter.
42. Concerning Mr. Dishkin, he may have believed that he possessed subjective grounds that Macey is likely to kill or seriously injure a person. However, i cannot agree with Mr. Dishkin's assertion in this regard. I am not satisfied that Mr. Dishkin's lay opinion is objectively reasonable in all the circumstances. I say this, in part, because the court has clear evidence that was tendered in exhibit two that showed Macey interacting with another stranger, namely Mr. Ken Griffiths, as well and other dogs while impounded at the Nanaimo animal control shelter. There were absolutely no problems with Macey interacting with another human or animal.
43. Additionally, in Smith v. Central Okanagan District (2013) BCSC 228 Mr. Justice Barrow wrote the following in the appeal of the original lower court decision as follows:
(30) The third definition of "dangerous dog" provides that a dangerous dog is a dog that "an animal control officer has reasonable grounds to believe is likely to kill or seriously injure a person". This definition turns on the animal control officer's belief and whether that belief is reasonable. Three features of this definition are worthy of note. First, unlike the other two definitions which rest on past events (killing or seriously injuring a person or domestic animal), this definition deals with likely future events. Second, it is only the likelihood of killing or seriously injuring a person that matters. The likelihood of killing or seriously injuring a domestic animal is not enough. Third, the legislature made the animal control officer's opinion, as opposed to the court's opinion, determinative. The only limitation is that the opinion must be reasonable.
There are at least two components which an animal control officer must consider to reach a reasonable opinion. The first is the disposition of the dog, and specifically whether the dog is aggressive, and if so, whether there is reason to believe the dog would be aggressive towards people. The second relates to the dog's owner. A dog that has a tendency to be aggressive towards people would not ground a reasonable belief that it is likely to kill or seriously injure a person if the owner keeps the animal either on a leash or otherwise under close control when in the presence of people. A reasonable basis to believe the dog will be seriously aggressive towards people and an owner that is either incapable or unwilling to control the animal when in the presence of people is what the definition implicitly requires.
44. Whilst in the case at bar Mr. Dishkin opined that he believed Macey is likely to kill or seriously injure person, I reiterate that Macey was involved in three incidents, two of which I find to be minor. The only injury that occurred was to the dog trainer Ms. Hoard. However, without the personal actions of Ms. Hoard's, which both she and Ms. Plant confirmed were inappropriate, it is highly unlikely that she, Ms. Hoard, would have been bitten.
45. Furthermore, the animal control officer gave no helpful evidence to this court as to the unsuitability of Mr. Aubie as a dog owner. Mr. Dishkin's evidence falls short in this "second" component of the test as stated by Mr. Justice Barrow in the appeal reasons in Smith v. Central Okanagan District, supra, at paragraph 60:
(60) The second variable in the equation that an animal control officer must consider is the degree of responsibility of the dog owner. As noted, a conclusion that a dog is aggressive towards people or other dogs is generally not sufficient to ground a reasonable belief that the dog is likely to seriously injure a person. Whether that is so or not will depend on whether the animal's owner is likely to take the steps necessary to control the animal and thus contain the risk.
46. In my view, there is an absence of the required second component and a high reliance on there being three "bites" that makes Mr. Dishkin's opinion speculative at best. Indeed, an opinion that i find is objectively unreasonable on the facts of this case.
47. In determining the weight of ms. Plant's opinion concerning dangerousness, Ms. Plant used decoys in a manner that i find was most unhelpful. I had some concerns with her opinion given Ms Plant had very little information provided to her regarding the history of Macey. Moreover Ms Plant had no information about the dog's behaviour with other dogs before her impoundment.
48. It would also appear that Ms. Plant was not aware of any training that Mr. Aubie had been attempting with the dog prior to her opinion nor information about the dog's socialization prior to her report. Those items may have affected her opinion but she indicated that she could only go with what she had. Lastly, when doing her assessment outside of the animal control shelter, she remembered hearing gunshots which she agreed could impact the dog's fearful nature.
49. By Ms. Plant's own admission, Macey seemed stressed and her testing was done whilst gunshots were possibly heard by the dog. I question the veracity of Ms. Plant's opinion to some degree based on her decoy approach in her testing of Macey. In my view, those tests came nowhere near that of reality. Although Ms. Plant tried her best, her opinion on Macey's fear and territorial aggression was purely speculative. In my view, the testing of Macey was done in a completely stressful environment when Ms. Plant initially entered the Nanaimo animal control shelter and when she continued the testing outside the shelter with the use of decoys. Given the sound of potential gunshots, coupled with the reality that Ms. Plant agreed the Nanaimo animal control shelter was stressful for Macey causes me further concerns in this case.
50. I also find the comments by my sister Judge Mrozinski in Douglas, supra, in paragraphs 54 and 64 apropos, and also applicable, to the case at bar. In that case my sister Judge stated the following:
( 54) It is the case, as Ms. Plant admitted on cross-examination, that the field of dog behaviour and dog training is less a science than an art. As Ms. Plant testified there is no formal training {university or four year college program.} for the field per se, but that with experience and immersion in the literature, persons like Ms. Plant can offer their best informed guess as to the likelihood of a dog behaving in a given fashion. Nonetheless, I accept Ms. Plant is in a better position than the court to opine on the likelihood of these dogs attacking in the future. It is a question of what weight I put on the opinion. The lack of scientific methodology means the weight of the opinion should be approached with some caution. I have other concerns with the opinion that also to weight.
{This is a previous case that Ms. Plant was involved in in Campbell River, BC. Remember, Ms. Lisbeth Plant has every dog training course and certification you can get and is considered one of the top 'dog trainers' on Vancouver Island and in British Columbia. How many anti Cesar Milan 'dog trainers' have you heard say that their “treat based positive reinforcement only techniques” are 'scientifically' proven and that nothing about what Cesar Milan and I do is scientific. Well here you finally get the truth from one of their own top 'dog trainers'. They guess. That's right folks, they guess. With all their training, courses, literature and “Scientific Studies”, they guess. In Macey's case, Ms. Lisbeth Plant of Cowichan Canine Behaviour and Training Ltd. in Duncan and Cobble Hill stated four times on the stand that, “We can not know what dogs think.” Now you know why. She also stated 4 times on the stand that her 'treat based positive reinforcement only techniques' work on all dogs and lions. That's right folks, her methods work on all dogs, except Macey and the thousands of other dogs that have been needlessly sent to their death or whose owner's were told their dog is untrainable. I have been saying for more than 10 years, as I did in this court case, that the pseudo 'scientific' research that has come out concerning 'dog training' is completely biased and false and is an attempt to negate what Cesar Milan and I do. They will do literally anything to get rid of us, as was seen here in the Comox Valley lately. You should ask yourself why? Why would they try so hard to get rid of two men that bring such a positive change to the lives of dogs and their owners, the same dogs and owners they failed? And I can guarantee you it has nothing to do with dogs. It has to do with saving their reputation, business and ass because we prove them wrong every day, just like I did here with Macey. It has been a long three years having the likes of Jane Neve and others trash me and what I do for their own personal gain while I remained silent and continued to spread peace and balance. Vindication feels so good. So, you can hire a 'dog trainer' that learned everything they know from a book, or another human who read the book, and guess what is wrong with your dog, or you can hire a true Dog Behaviourist who actually lives with a pack of Alpha and Beta balanced dogs and learned everything they know about dogs from dogs. Your choice. I just feel it is very important for you to have the true information to be able to make this decision.}
(64) Whatever Ms. Plant's opinion regarding the dangerousness of these 2 dogs, s. 49.1 of the Community Charter is quite specific. To find a dog dangerous after the provision, I must find one of ss. (a). (b), or (c) have been proven. With regard to Stroker, the District submits this court can find she is dangerous pursuant to ss. (c) in that AGO Elley has reasonable grounds to believe she is likely to kill or seriously injure a person. As was noted during submissions, AGO Elley never testified to having a subjective belief that Stroker is likely to kill or seriously injure a person. Moreover, such a belief is not made out objectively on the evidence in this trial. I will accept that stroke exhibited fear and territorial aggression during the testing in the kennels. {Ms. Plant did the exact same 'assessment' using decoys with this dog as she did with Macey and hundreds of others. And the report is always the same, fear aggression. You would be fearful too if you were a child and something was attacking you.} It does not flow, in my view, that this constitutes objective evidence that Stroker is likely to kill or seriously injure a person. For these reasons I find that Stroker does not meet the definition of a dangerous dog pursuant to 49.1 of the Community Charter. This court having no further jurisdiction to do with the animal, it follows that Stroker must be released back to Ms. Douglas.
51. In addition, the dog's owner Mr. Aubie, clearly has had small children in his residence. There have been no allegations of inappropriate behaviour regarding them, nor to anyone else outside the dog's own residence. It is common knowledge that dogs are particularly known to be territorial with respect to their own surroundings. There is not a shred of evidence to suggest Macey has bitten another human or animal outside of its own territory in the past.
52. Furthermore, I also find it appropriate to review comments made by our Court of Appeal in paragraphs 66 and 69 of the Santics, supra, which stated in part:
[66] In my view, the overarching question on an application for destruction order is whether the dog poses an unacceptable risk to the public-- that is, Whether it is likely, on a balance of probabilities and given the totality of the evidence, to kill or seriously injure in the future "
[69] ... that the concept of burden of proof does not naturally lend itself to the assessment of future events. Rather, the Provincial Court on a.s. 324.1(10) application must consider the totality of the available evidence – regardless of which party adduced it-- to determine whether, on a balance of probabilities, the dog is likely to kilI or seriously injure in the future.
53. It is clear on the evidence that Macey nipped at one child in the last incident and grabbed or bit at two adults, all of whom she was unfamiliar with in the past. Only one of those persons, Ms. Hoard, had any sort of injury of note.
54. On the totality of the evidence I have read and heard, including Ms. Plant, I find that Macey does not meet the definition of a dangerous dog as set out in the statute. Although I recognize the test for dangerousness is on a balance of probabilities, I take comfort though that two of the incidents involved minor bites. The issue which caused me most concern was Ms. Hoard's bite. However, that bite did not result in any serious, significant or lasting injury. In addition, I wish to emphasize the time gap between all the incidents and the time period between the last incident, April 7, 2018, which involved Ms. Desousa's young child, until Macey was impounded by court order on August 7, 2018. There simply is no evidence of any serious injuries that occurred on the evidence adduced in this hearing.
55. In fact, this court has heard no evidence that Macey has tried to attack anyone, including Ms. Knapman, nor any other animal control officer from the last incident to date. There is also no evidence that Macey has ever attacked, bitten or killed any other animal to date. NOTWITHSTANDING MACEY HAS, WHILST AT OR NEAR THE NANAIMO ANIMAL CONTROL SHELTER UNDER TESTING BY M PLANT, ACTED IN A SOMEWHAT ALARMING WAY WITH THREE DECOYS, I BALANCE THAT WITH WHAT I HAVE ALSO OBSERVED BY WAY OF REAL DOGS UNDER CLOSE SUPERVISION BOTH ON AND OFF LEASH CONDUCTED BY MR. GRIFFITHS AT THE NANAIMO ANIMAL CONTROL SHELTER. IN THOSE SCENARIOS MACEY IS SEEN TO BE INTERACTING WITH OTHER DOGS, AND WITH MR. GRIFFITHS, IN A COMPLETELY NORMAL PATTERN IN A STRESSFUL ENVIRONMENT FOR THE DOG.
56. Moreover, whilst Ms. Plant has extensive experience, she could not give a definitive opinion as to whether this dog would be a danger to humans or other animals in the future. Furthermore, Ms. Plant certainly could not say other options will not work for Macey. Indeed, Ms. Plant offered certain recommendations in her report. Her recommendations speak for themselves; Ms. Plant has not opined that Macey cannot be rehabilitated. In fact, Ms. Plant has never recommended that a dog be humanely euthanized, including this dog Macey in the case at bar.
{This is an admission by Ms. Plant but not corroborated. If anyone has had a dog in training with Ms. Lisbeth Plant where she recommended your dog be drugged or euthanized because of its behaviour and its inability to be trained, we kindly ask that you send us a detailed and signed document detailing this experience. The same goes for any other dog owner who has been told the same thing by their 'dog trainer' or veterinarian. (I have many incredible and passionate veterinarians across Vancouver Island that support me and recommend their clients contact me for help with their reactive or aggressive dog. Unfortunately some veterinarians are still having trouble accepting the truth.) Ms. Plant denied taking Mr. Aubie and Macey on as a client after Macey bit the first person. She does not work with or does board and train with aggressive dogs but yet she is an expert on 'aggressive' dogs.}
57. In conclusion, whilst this court may have some reservations about Macey, it is my view that, on balance, and upon careful reflection of the evidence, I am not satisfied that the City of Nanaimo has discharged the burden required of it in this application. I say this given my aforementioned comments above. This by no means is a criticism of the City's witnesses in general. However, I am not satisfied that Macey be declared a dangerous dog as is defined in the statute and interpreted in the case law.
58. I find that animal control officer Dishkin's opinion, coupled with that of kennel keeper Knapman, to be objectively unreasonable on the totality of the evidence. Both of those individuals attempted to go much further than Ms. Plant and I do not consider them to have given reasonable opinions upon reflection of the evidence I have heard and reviewed in this case; that Macey is likely to kill or seriously injure a person in the future.
59. However, despite my finding, even if Macey was found to be a dangerous dog as defined in the statute, Macey does not pose such an "unreasonable risk to the public" in that she would kill or seriously injure someone in the future that warrants her euthanization. Even Ms. Plant does not make a recommendation for destruction of Macey and opined that rehabilitation should be attempted.
Disposition:
60. Accordingly, l decline to make an order that Macey be declared a dangerous dog.
61. Therefore, the application by the City of Nanaimo is dismissed and Macey is ordered to be released back to her owner, Mr. Aubie, forthwith.
{PS: I drove to Nanaimo to meet Mr. Aubie at the Nanaimo animal control shelter the day he won the case and they refused to release Macey unless Mr. Aubie signed a waiver releasing them from any liability for physical or psychological injures she may have sustained while in their care in solitary confinement for 16 months. Mr. Aubie was not going to sign such a document and the Nanaimo animal control shelter refused to give Macey to him and to follow a court order. It wasn't until I got on the phone with the RCMP that they brought Macey out and gave her to Mr. Aubie. Right to the end they still wanted to screw with Mr. Aubie and his dog, and would have again succeeded if I was not there. If your city is intent on killing your dog, especially Nanaimo, I am the only one who will fight to the death for you and your dog. Pack leaders will always fight to the death to protect their pack. That is the level of trust and respect a pack of dogs has for each other. Let's show Mr. Aubie and his family just how large his extended pack is here in British Columbia. Mr. Aubie is truly the kindest and best of men as is clearly seen in his extremely well mannered, respectful, happy and balanced children and puppy.}
Thank you in advance for your support.
Peace My Friends.
Michael Aubie is a single father of 4 children ages 9 to 14 and the soon to be famous Macey. Mr. Aubie is a brilliant man and is a university student in Computer Science at VIU Nanaimo. As you will see in this video and the judge's decision, this case was a complete sham orchestrated by Ian Fraser, the owner of the Nanaimo Animal Control Shelter. Macey was seized in August, 2018 at which time Mr. Aubie, after being turned down by almost 30 dog trainers in British Columbia, luckily found me and asked for my help. As soon as Ian Fraser was informed about who I was, as he was not aware of me previously, he forbid Mr. Aubie to hire me for this case and told him I was not going to be allowed to see or assess Macey. Mr. Aubie had a legal right to hire any dog trainer or behaviourist he wanted to, but Nanaimo doesn't care about your legal rights. The videos of my dogs and I with Macey were recorded in January, 2019, 5 months after Macey was seized, as this is how long it took the judge to make a decision on me being allowed to see and assess Macey. No dog trainer would help him and they fought with everything they had to stop the only person who would help him. This video and the judge's decision will make it very clear Why? At the end of the video I expected that they would see that Macey was not dangerous or aggressive, and as I explained to them, she was just an insecure puppy that needed leaders, parents in the human world, and she would be released. But no, the court was told by their trainer Lisbeth Plant that, and this verbatim, you can check the court records, “Macey is only acting normal and happy with Mr. Griffiths because she is fearful that if she shows any fear he will beat her.” So, as a result, Mr. Aubie had to continue to fight to save Macey for 11 more months, which was only a total of 3 more days in court, while the city Lawyer now objected to me testifying on Macey's and Michael's behalf. They were hell bent on killing this puppy and if it was not for those videos of my dogs and I with Macey, as the judge asserts, Macey more than likely would have been killed.
Mr. Aubie used what he had in his life savings, $5,000, to defend and save his puppy. He hired a lawyer and when the money ran out after only 3 days in court, which took 5 months because of the city's constant objections to literally everything, I mean everything, Mr. Aubie wanted to submit to the court as evidence. What the City of Nanaimo and the Nanaimo Animal Control Shelter put Macey and her family through was an outrage.
I am hoping to raise $5,000 to reimburse Mr. Aubie the life savings he lost fighting this case against his puppy that should have never proceeded to court after I saw Macey that day in January, 2019. Also, due to his limited financial means at this time while in university, Mr. Aubie and his young, large family live in a small townhouse with no fenced yard. Any and all moneys raised above $5,000 will go towards helping Mr. Aubie find a larger home to live in outside the city limits of Nanaimo, I'm sure you can understand why, with a fenced yard where he and his young family and Macey can grow and thrive together in peace and balance. If anyone has a rental that they think would be a good fit, we would love to hear from you.
Below you will find the complete judge's decision in this case.
Since I am unable to italicize or underline words in this post, I will be capitalizing sentences and words that are of extreme importance to this case and the judges decision. I am not yelling. LOL. Peace.
{All sentences in brackets are comments I make for further clarification of what is being said.}
Date: November 26, 2019
File No: 74687
Registry: Nanaimo
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
IN THE MATTER OF AN APPLICATION BY
THE CITY OF NANAIMO
PURSUANT TO SECTION 49 OF THE COMMUNITY CHARTER, S.B.C.2003, CHAPTER 26,
AND
IN THE MATTER OF MICHAEL AUBIE
AND
THE DOG MACEY
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE B. HARVEY
Counsel for the City of Nanaimo: J. Plonka
Appearing on his own behalf: M. Aubie
Place of Hearing: Nanaimo, B.C.
Dates of Hearing: January 23, March 1, April 3, November 6, 7, 8, 2019
Date of Judgment: November 26, 201 9
Introduction:
1. The city of Nanaimo has applied for a finding that Macey, a black German shepherd dog, be declared a dangerous dog pursuant to sections 49(1)(a) and (c) of the Community Charter S.B.C. 2003 Chapter 26 and that either this dog be humanely euthanized or, in the alternative, be released to the dog's owner Mr. Aubie.
2. Pursuant to the Santics decision referenced later in these reasons, conditional orders of release are no longer an option for this court. {This means that in British Columbia the dog can only be euthanized or returned to the owner.}
The Issue:
3. The issue for this court to decide now is whether the City of Nanaimo, on a balance of probabilities, satisfied the court that:
Macey is a dangerous dog; and
If such a finding is made, what should be the fate of this dog?
4. This evidence in this case was heard over 6 days {Which took 16 months to do}. It concluded after submissions on November 8, 2019. Mr. Aubie, Macey's owner, became self-represented midway through the Trial.
The Facts:
5. In order to achieve my decision in this matter, I will briefly deal with the evidence that I have heard and read in the exhibits in this case.
6. The City of Nanaimo called the following six witnesses in its case against Macey's owner, Mr. Aubie.
Brittany Desousa;
Jennifer Belanger;
Karen Hoard;
Lisbeth Plant;
Amber Knapman; and
Justin Dishkin
7. Jennifer Belanger is a social worker with the Ministry of Children and Family Development (M.C.F.D). On November 15, 2017 Ms. Belanger was visiting the family home of Mr. Aubie as part of her M.C.F.D. duties. Whilst in the Aubie residence, Ms. Belanger headed upstairs where the dog Macey approached and grabbed at the social worker's right arm and then proceeded to hold onto the social worker near her right elbow. The grab, which was referred to as a bite, did not at all puncture the skin of Ms. Belanger. She had been wearing a rain jacket, along with a longer sleeved shirt. Ms. Belanger did receive marks or, both her jacket and underlying skin, the latter resulting in a bruise approximately the size of a quarter. Although a report was filed by Ms. Belanger with WorkSafe BC, Ms. Belanger did not seek out any medical treatment for this incident. Otherwise, the home visit went on as scheduled with the dog Macey still in tho home without further issue.
8. Karen Hoard was working as a dog trainer as an independent contractor for Best Paw Forward. Macey's owner, Mr. Aubie had contacted Best Paw Forward to arrange some training for his dog. As a consequence Ms. Hoard attended at the home on February 14, 2018 for an initial visit. Ms. Hoard testified Macey was a black female German shepherd dog that weighed approximately 60-70 pounds at the time.
9. At approximately 4pm on the date in question, Ms. Hoard testified that the dog was barking at her so Ms Hoard asked for the owner and dog to go outside so that Ms. Hoard could observe the dog. After a short period of observation she asked the owner to return with the dog inside. Ms. Hoard advised the court Macey looked nervous, fearful and was protecting her home.
10. After Macey was put back into her crate inside the residence, Ms. Hoard and the owner, Mr. Aubie, spoke. During this time Macey continued to bark. At some point thereafter Ms. Hoard asked Mr. Aubie to remove Macey from her crate and instructed the owner to let Macey go. As a consequence of Ms. Hoard's instructions to Mr. Aubie, Macey went towards the trainer Ms. Hoard and bit her on the upper right thigh and right buttock area. As a result, the dog trainer had pants that were ripped and the bites broke the skin of Ms. Hoard, but on her thigh only. Notwithstanding this incident, the lesson continued for a further thirty to forty minutes. Ms. Hoard did later attend a walk-in medical clinic in order to receive some medical treatment. However, as the bite did not puncture her skin, Ms. Hoard received only skin surface marks, including a large bruise on her thigh. The end result was Ms. Hoard was ultimately prescribed a course of antibiotics and advised to use polysporin for the affected areas.
11. Brittany Desousa testified that On April 7, 2018 she attended at Mr. Aubie's home with her son Nathaniel for the purposes of a birthday party invitation. After the door was knocked, the dog Macey was in attendance at or near the doorway and was barking. After a brief discussion with the youth who had answered the door, Macey then nipped at Ms. Desousa's son's arm so Ms. Desousa then smacked her son's arm and that resulted in the dog losing its very brief hold on the child's arm.
12. Ms. Desousa then knocked on the door subsequently; but no one came, so she departed with her son. Ms. Desousa described that her son received a pinch wound although there was no scarring nor was the skin broken. There was no medical attention sought by Ms. Desousa for this incident. Ms. Desousa also indicated in cross-examination that she was not fearful of Macey.
13. Lisbeth Plant, by consent of counsel for Mr. Aubie at the time, was declared an expert by the court with respect to the following after a brief Voir Dire:
• In making assessments as to whether or not a dog is aggressive and dangerous;
• tn the likelihood of the dog, in the future, attacking and killing or seriously injuring a person or another domestic animal; and
• In the training and rehabilitating of aggressive and dangerous dogs.
14. Ms. Plant testified over two days and was cross-examined at some length by counsel for Mr. Aubie as well as by Mr. Aubie directly after he became self-represented during these proceedings.
15. Ms. Plant gave an opinion after having tested Macey on December 11, 2018 when Macey was at the Nanaimo Animal Control Shelter. Ms. Plant used several decoys in order to perform her analysis on Macey. Her opinion was that Macey had a behaviour that indicated fear aggression as well as territorial aggression.
16. Notwithstanding those opinions, the expert indicated in her report at page 19 that rehabilitation should still be attempted with the dog, including making several recommendations for a safe management protocol.
17. In Ms. Plant's supplemental report dated February 25, 2019, she did not alter her opinion but indicated the following at the close of her report under the heading "comment":
"The shelter environment is a stressful environment can be expected to have a negative effect on the emotional health of any dog placed in it. {Finally, one of their own admitting to what I have been saying for years. As is seen in my numerous videos, all the dangerous and aggressive dogs here live together in peace and balance in my little home.} In saying that, I am gratified to see that staff are continuing to work with her, and even though it is not taking the form of behaviour modification for her particular fear issues, the positive reinforcement training serves to increase her confidence as well as her quality of life."
18. Amber Knapman testified that she is a kennel keeper with the Nanaimo Animal Control and has been there since April 4, 2018. For five days a week one of her duties is to look after Macey. Macey is stored in an area that is separate from other animals, given she has a vicious dog designation as a result of her impoundment.
19. Since Macey has been in the care of the Nanaimo Animal Control, some fifteen plus months now, Ms. Knapman indicates that Macey is very excited to see her each day and that she has been making some improvements. Macey has no difficulty having a muzzle placed on her {The video shows this is NOT the case.} and when she gets to know a stranger, there have been no issues with her. However, Ms. Knapman would feel uncomfortable with Macey being released at this time because the kennel keeper believed that Macey still poses a threat to public safety given the past incidents that led to her impoundment. Ms. Knapman did not train or arrange for Macey to encounter strangers or other dogs whilst on walks but advised it was the other officers who walked Macey.
20. Justin Dishkin is now a Bylaw Officer for the City of Nanaimo. At the relevant time when Macey was apprehended, he was the Animal Control Officer for the City of Nanaimo. Mr. Dishkin testified about his reasonable and probable grounds as to why he believed this dog was still dangerous. {When Macey was seized, Mr. Dishkin wanted to put her in the back of a canopied pickup truck with a chain, rebar and power tools loose in the the back that would be dangerous to Macey in the event of an accident. Macey's owner seeing this risk insisted that Macey be put into a different vehicle. Mr. Dishkin didn't think there was a safety issue with Macey riding in the back of a truck with all those loose, heavy metal objects and tools. There was a police officer there that Mr. Aubie asked to transport Macey in his vehicle, a canine unit SUV, which he did.}
They included the following:
• The dog seemed un-socialized;
• The dog's temperament;
• The fact that she had bitten three people; and
• No training was followed up with Mr. Aubie to his knowledge. {This was a common argument of the city, that Mr. Aubie made no attempt to get training for his dog. Seriously? The second person Macey nipped was the 'dog trainer' Mr. Aubie hired after Macey nipped the first person. Mr. Aubie also contacted Lisbeth Plant at that time and she refused to help him because she does not work with or board and train aggressive dogs. And this is the city's 'expert' on aggressive dogs? Once Macey was seized, Mr. Aubie contacted over 30 dog trainers in the province, including the mainland, and they ALL refused to help him, with many even stating his dog should be killed because of what she did,without even meeting the dog. That's what you call an 'industry standard', when we can't help them, kill them. That is when Mr. Aubie heard about and contacted me. Macey is now alive because of that. More TRUTH about 'treat based positive reinforcement only' 'dog trainers'.} Notwithstanding the above comments the Bylaw Officer indicated that there were discussions about the return of Macey to Mr. Aubie on conditions prior to her ultimate impoundment.
21. Nevertheless, Mr. Dishkin is still of the opinion that Macey will seriously injure someone in the future.
22. When asked, while still in chief, if the dog poses a risk by barking, his response was "it can for sure". {A barking dog poses threat to the public? Now they're are going to kill dogs just for barking?} To his mind, the biggest factor was both the child and social worker incidents in the house. It was also significant to the bylaw officer that there was more than one bite. Counsel for the city of Nanaimo posed a question to Mr. Dishkin along the following lines: 'Well, what do you say then that all dogs can bite?" Mr. Dishkin's response was "they don't".
23. That is a brief summary of the evidence led for City of Nanaimo against Mr. Aubie.
24. Mr. Aubie, the dog's owner, then called the following witness in response to the City's case:
• Aurora Jepson
25. Ms. Jepson has a two year old German shepherd that, unfortunately, had some behavioural issues. After trying a number of trainers, her and her partner ultimately received some significant progress with the use of Mr. Ken Griffiths, a behaviourist trainer that has also worked with Macey at the Nanaimo Animal Control Shelter. Ms. Jepson indicated the results with her dog have been impressive and at a fraction of the cost spent on other trainers. {The 'dog trainer' that Ms. Jepson hired in Nanaimo charged her and her partner, a young couple just starting out in life with limited financial means, $3,000 for 21 days of board and train and did absolutely nothing to correct her dog's behaviour. I had her dog back to a balanced and respectful state of mind in less than 2 hours for $200 plus travel. If her dog needed to come here for rehabilitation, the cost would have been $500 for 7 days. It's your money. It's your choice, now that you know you have one.} Moreover, Ms. Jepson has never witnessed Mr. Griffiths lose his temper around her dog and looks forward to continue to work with him given the positive results she has received to date.
Community Charter and Case :
26. The relevant section of the statute in question is set out in section 49 (1) of the Community Charter S.B.C. 2003 Chapter 26 which states the following in part:
49 (1) In this section:
"dangerous dog" means a dog that
(a) has killed or seriously injured a person,
(b) has killed or seriously injured a domestic animal, while in a public place or while on private property, other than property owned or occupied by the person responsible for the dog, or
(c) an animal control officer has reasonable grounds to believe is likely to kill or seriously 1njure a person.
(10) In addition to any other authority, if an animal control officer has reasonable grounds to believe that a dog is a dangerous dog, the officer may apply to the Provincial Court for an order that the dog be destroyed in the manner specified in the order.
27. The court had the following case law authorities provided to it:
1. R. v Dempster(1995) CanLii 1668 (BCCA);
2 Community Charter v. Whittle (2005) BCPC 610;
3. Smith' v. Central Okanagan (Regional District) (2013) BCSC 1063;
4. New Westminster Animal Control v. Letendre (2010) BCPC 38;
5. R. v. Kuceras (2001) BCPC 0360;
6. Santics v. Vancouver (City) Animal Control Officer (2019) BCSC 24 and (2019) BCCA 294;
7. City of Campbell River v. Awed (2016) BCPC 431;
8. R. v. Douglas (2019) BCPC 80;
9. Regional District of Kitimat-Stikine v. MacNeil (Unreported) February 23, 2013 (BCPC).
28. I have reviewed all of the cases submitted by the parties. Of course, each case is fact specific. Whilst each case authority is instructive in its own fact specific scenario, this court must nevertheless apply the principles enunciated in the cases provided, including Santics, to the facts in the case at bar.
29. What has not changed, however, is the twofold sections of the Community Charter applicable to this case, namely sections 49(1 )(a) and (c). Subsection (a) deals with whether Macey has seriously injured a person and subsection (c) deals with whether the animal control officer has a reasonable grounds to believe Macey is likely to kill or seriously injure a person and whether that belief is objectively reasonable in all the circumstances.
30. Additionally, even if there is a finding that Macey is dangerous, the court may go on to consider whether she poses an "unacceptable risk to the public".
Position of the Parties
31. Counsel for the City of Nanaimo argued that that there is sufficient evidence to prove that Macey continues to be a dangerous dog given the three incidents in question. Moreover, it is the City of Nanaimo's position that Mr. Dishkin's opinion is that Macey is likely to kill or seriously injure a person. Counsel for the City argued that this was a reasonable position in all the circumstances. Additionally, it was argued that the evidence of kennel keeper Knapman was also a relevant factor for the court to consider.
32. It is the City's ultimate position that the only reasonable option for the court is destruction of the dog. That being said, counsel for the City of Nanaimo also acknowledged that there is a second step that flows from Santics, namely that even if this court were to make a finding of "dangerous" as defined in the statute, the court can go on to consider whether Macey does not pose an "unacceptable risk to the public". If that were the case, counsel for the City of Nanaimo acknowledged the court can then dismiss the application for destruction and release the dog back to its owner. Counsel strenuously attempted to persuade this court that Macey still poses an unacceptable risk to the public and therefore, she must be destroyed.
33. Mr. Aubie, on the other hand also gave, as best he could, closing submissions that his dog should not be destroyed. Firstly, he referenced the fact that his dog was grabbed inappropriately by kennel keeper Knapman on the back of her lower neck area prior to being initially muzzled for the decoy tests with Ms. Plant. Secondly, Mr. Aubie argued that there were also gunshots audibly heard outside the shelter when Macey was participating in Ms. Plant's decoy assessments. Thirdly, Mr. Aubie also argued that when Mr. Ken Griffiths went to see Macey, Macey had no issues with either him, a complete stranger, nor with any other dog whilst under observation at the Nanaimo animal control shelter.
34. Mr. Aubie referenced the two more minor incidents of the social worker and the young child. Additionally, but for the dog trainer Ms. Hoard's actions inside his own home, he stated she likely would not have been bitten. Lastly, and importantly, Mr. Aubie stressed the time gaps between all of the incidents concerning Macey. In addition, he stressed the length of time without any further occurrence from the last minor incident of the young child to Macey's ultimate impoundment on August 7, 2018.
35. Therefore, it is Mr. Aubie's position, in any event, that Macey does not pose an unacceptable risk to the public and the application for destruction of Macey by the City of Nanaimo ought to be dismissed.
Analysis:
36. It must be remembered that courts regularly deal with conflicting evidence in both civil and criminal cases. What remains essential is that the City of Nanaimo bears the onus of proof on a balance of probabilities throughout in the case at bar. However, the evidence must be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test.
37. When analyzing the evidence as a whole and reviewing the exhibits I must say that my overall impression was that all witnesses gave, as best they could, candid and straightforward testimony. That being said, this court still has to decide whether the City's application for destruction of this dog should occur or whether the dog may be returned to its owner.
38. What is clear from the evidence I have heard is that this young dog has nipped at or bitten three persons at the dog owner's own property and only one of those persons, Ms Hoard, had any injury. Moreover, there was no evidence led that Macey has ever attacked or bitten another animal. There was also no evidence that Macey has attacked another person, be it an adult or child, outside of the dog owner's residence. Additionally, over the last fifteen plus months that Macey has been impounded in the Nanaimo animal control shelter, there have not been any other incidents. If such were the case, then this court surely would have heard about any such incidents.
39. I also find it important that all the incidents were separated by a number of months and that Macey was impounded some four plus months after the last incident involving the young child. I find that, in all the circumstances, the last incident involving the young child was a minor one.
40. To assess the future risk of Macey, the court has the opinions of Ms. Plant, Ms. Knapman and Mr. Dishkin. Ms. Knapman and Mr, Dishkin gave their lay opinions on the matter at hand. I find the opinions of ms. Knapman, and particularly former animal control officer Mr. Dishkin, problematic.
41. Dealing first with Ms. Knapman; she has no formal training in dog behaviour, nor is she a trainer. Ms. Knapman has simply been in charge of looking after Macey on a day-to-day basis with her primary responsibilities of feeding and caring for Macey's surroundings at the Nanaimo animal control shelter. She had little to no information about Macey's past history in relation to Macey being out in the public realm. Of course, Ms. Knapman has no prior history of the dog's environment, nor has had any opportunity to see her interact with other dogs or humans prior to her involvement in this matter.
42. Concerning Mr. Dishkin, he may have believed that he possessed subjective grounds that Macey is likely to kill or seriously injure a person. However, i cannot agree with Mr. Dishkin's assertion in this regard. I am not satisfied that Mr. Dishkin's lay opinion is objectively reasonable in all the circumstances. I say this, in part, because the court has clear evidence that was tendered in exhibit two that showed Macey interacting with another stranger, namely Mr. Ken Griffiths, as well and other dogs while impounded at the Nanaimo animal control shelter. There were absolutely no problems with Macey interacting with another human or animal.
43. Additionally, in Smith v. Central Okanagan District (2013) BCSC 228 Mr. Justice Barrow wrote the following in the appeal of the original lower court decision as follows:
(30) The third definition of "dangerous dog" provides that a dangerous dog is a dog that "an animal control officer has reasonable grounds to believe is likely to kill or seriously injure a person". This definition turns on the animal control officer's belief and whether that belief is reasonable. Three features of this definition are worthy of note. First, unlike the other two definitions which rest on past events (killing or seriously injuring a person or domestic animal), this definition deals with likely future events. Second, it is only the likelihood of killing or seriously injuring a person that matters. The likelihood of killing or seriously injuring a domestic animal is not enough. Third, the legislature made the animal control officer's opinion, as opposed to the court's opinion, determinative. The only limitation is that the opinion must be reasonable.
There are at least two components which an animal control officer must consider to reach a reasonable opinion. The first is the disposition of the dog, and specifically whether the dog is aggressive, and if so, whether there is reason to believe the dog would be aggressive towards people. The second relates to the dog's owner. A dog that has a tendency to be aggressive towards people would not ground a reasonable belief that it is likely to kill or seriously injure a person if the owner keeps the animal either on a leash or otherwise under close control when in the presence of people. A reasonable basis to believe the dog will be seriously aggressive towards people and an owner that is either incapable or unwilling to control the animal when in the presence of people is what the definition implicitly requires.
44. Whilst in the case at bar Mr. Dishkin opined that he believed Macey is likely to kill or seriously injure person, I reiterate that Macey was involved in three incidents, two of which I find to be minor. The only injury that occurred was to the dog trainer Ms. Hoard. However, without the personal actions of Ms. Hoard's, which both she and Ms. Plant confirmed were inappropriate, it is highly unlikely that she, Ms. Hoard, would have been bitten.
45. Furthermore, the animal control officer gave no helpful evidence to this court as to the unsuitability of Mr. Aubie as a dog owner. Mr. Dishkin's evidence falls short in this "second" component of the test as stated by Mr. Justice Barrow in the appeal reasons in Smith v. Central Okanagan District, supra, at paragraph 60:
(60) The second variable in the equation that an animal control officer must consider is the degree of responsibility of the dog owner. As noted, a conclusion that a dog is aggressive towards people or other dogs is generally not sufficient to ground a reasonable belief that the dog is likely to seriously injure a person. Whether that is so or not will depend on whether the animal's owner is likely to take the steps necessary to control the animal and thus contain the risk.
46. In my view, there is an absence of the required second component and a high reliance on there being three "bites" that makes Mr. Dishkin's opinion speculative at best. Indeed, an opinion that i find is objectively unreasonable on the facts of this case.
47. In determining the weight of ms. Plant's opinion concerning dangerousness, Ms. Plant used decoys in a manner that i find was most unhelpful. I had some concerns with her opinion given Ms Plant had very little information provided to her regarding the history of Macey. Moreover Ms Plant had no information about the dog's behaviour with other dogs before her impoundment.
48. It would also appear that Ms. Plant was not aware of any training that Mr. Aubie had been attempting with the dog prior to her opinion nor information about the dog's socialization prior to her report. Those items may have affected her opinion but she indicated that she could only go with what she had. Lastly, when doing her assessment outside of the animal control shelter, she remembered hearing gunshots which she agreed could impact the dog's fearful nature.
49. By Ms. Plant's own admission, Macey seemed stressed and her testing was done whilst gunshots were possibly heard by the dog. I question the veracity of Ms. Plant's opinion to some degree based on her decoy approach in her testing of Macey. In my view, those tests came nowhere near that of reality. Although Ms. Plant tried her best, her opinion on Macey's fear and territorial aggression was purely speculative. In my view, the testing of Macey was done in a completely stressful environment when Ms. Plant initially entered the Nanaimo animal control shelter and when she continued the testing outside the shelter with the use of decoys. Given the sound of potential gunshots, coupled with the reality that Ms. Plant agreed the Nanaimo animal control shelter was stressful for Macey causes me further concerns in this case.
50. I also find the comments by my sister Judge Mrozinski in Douglas, supra, in paragraphs 54 and 64 apropos, and also applicable, to the case at bar. In that case my sister Judge stated the following:
( 54) It is the case, as Ms. Plant admitted on cross-examination, that the field of dog behaviour and dog training is less a science than an art. As Ms. Plant testified there is no formal training {university or four year college program.} for the field per se, but that with experience and immersion in the literature, persons like Ms. Plant can offer their best informed guess as to the likelihood of a dog behaving in a given fashion. Nonetheless, I accept Ms. Plant is in a better position than the court to opine on the likelihood of these dogs attacking in the future. It is a question of what weight I put on the opinion. The lack of scientific methodology means the weight of the opinion should be approached with some caution. I have other concerns with the opinion that also to weight.
{This is a previous case that Ms. Plant was involved in in Campbell River, BC. Remember, Ms. Lisbeth Plant has every dog training course and certification you can get and is considered one of the top 'dog trainers' on Vancouver Island and in British Columbia. How many anti Cesar Milan 'dog trainers' have you heard say that their “treat based positive reinforcement only techniques” are 'scientifically' proven and that nothing about what Cesar Milan and I do is scientific. Well here you finally get the truth from one of their own top 'dog trainers'. They guess. That's right folks, they guess. With all their training, courses, literature and “Scientific Studies”, they guess. In Macey's case, Ms. Lisbeth Plant of Cowichan Canine Behaviour and Training Ltd. in Duncan and Cobble Hill stated four times on the stand that, “We can not know what dogs think.” Now you know why. She also stated 4 times on the stand that her 'treat based positive reinforcement only techniques' work on all dogs and lions. That's right folks, her methods work on all dogs, except Macey and the thousands of other dogs that have been needlessly sent to their death or whose owner's were told their dog is untrainable. I have been saying for more than 10 years, as I did in this court case, that the pseudo 'scientific' research that has come out concerning 'dog training' is completely biased and false and is an attempt to negate what Cesar Milan and I do. They will do literally anything to get rid of us, as was seen here in the Comox Valley lately. You should ask yourself why? Why would they try so hard to get rid of two men that bring such a positive change to the lives of dogs and their owners, the same dogs and owners they failed? And I can guarantee you it has nothing to do with dogs. It has to do with saving their reputation, business and ass because we prove them wrong every day, just like I did here with Macey. It has been a long three years having the likes of Jane Neve and others trash me and what I do for their own personal gain while I remained silent and continued to spread peace and balance. Vindication feels so good. So, you can hire a 'dog trainer' that learned everything they know from a book, or another human who read the book, and guess what is wrong with your dog, or you can hire a true Dog Behaviourist who actually lives with a pack of Alpha and Beta balanced dogs and learned everything they know about dogs from dogs. Your choice. I just feel it is very important for you to have the true information to be able to make this decision.}
(64) Whatever Ms. Plant's opinion regarding the dangerousness of these 2 dogs, s. 49.1 of the Community Charter is quite specific. To find a dog dangerous after the provision, I must find one of ss. (a). (b), or (c) have been proven. With regard to Stroker, the District submits this court can find she is dangerous pursuant to ss. (c) in that AGO Elley has reasonable grounds to believe she is likely to kill or seriously injure a person. As was noted during submissions, AGO Elley never testified to having a subjective belief that Stroker is likely to kill or seriously injure a person. Moreover, such a belief is not made out objectively on the evidence in this trial. I will accept that stroke exhibited fear and territorial aggression during the testing in the kennels. {Ms. Plant did the exact same 'assessment' using decoys with this dog as she did with Macey and hundreds of others. And the report is always the same, fear aggression. You would be fearful too if you were a child and something was attacking you.} It does not flow, in my view, that this constitutes objective evidence that Stroker is likely to kill or seriously injure a person. For these reasons I find that Stroker does not meet the definition of a dangerous dog pursuant to 49.1 of the Community Charter. This court having no further jurisdiction to do with the animal, it follows that Stroker must be released back to Ms. Douglas.
51. In addition, the dog's owner Mr. Aubie, clearly has had small children in his residence. There have been no allegations of inappropriate behaviour regarding them, nor to anyone else outside the dog's own residence. It is common knowledge that dogs are particularly known to be territorial with respect to their own surroundings. There is not a shred of evidence to suggest Macey has bitten another human or animal outside of its own territory in the past.
52. Furthermore, I also find it appropriate to review comments made by our Court of Appeal in paragraphs 66 and 69 of the Santics, supra, which stated in part:
[66] In my view, the overarching question on an application for destruction order is whether the dog poses an unacceptable risk to the public-- that is, Whether it is likely, on a balance of probabilities and given the totality of the evidence, to kill or seriously injure in the future "
[69] ... that the concept of burden of proof does not naturally lend itself to the assessment of future events. Rather, the Provincial Court on a.s. 324.1(10) application must consider the totality of the available evidence – regardless of which party adduced it-- to determine whether, on a balance of probabilities, the dog is likely to kilI or seriously injure in the future.
53. It is clear on the evidence that Macey nipped at one child in the last incident and grabbed or bit at two adults, all of whom she was unfamiliar with in the past. Only one of those persons, Ms. Hoard, had any sort of injury of note.
54. On the totality of the evidence I have read and heard, including Ms. Plant, I find that Macey does not meet the definition of a dangerous dog as set out in the statute. Although I recognize the test for dangerousness is on a balance of probabilities, I take comfort though that two of the incidents involved minor bites. The issue which caused me most concern was Ms. Hoard's bite. However, that bite did not result in any serious, significant or lasting injury. In addition, I wish to emphasize the time gap between all the incidents and the time period between the last incident, April 7, 2018, which involved Ms. Desousa's young child, until Macey was impounded by court order on August 7, 2018. There simply is no evidence of any serious injuries that occurred on the evidence adduced in this hearing.
55. In fact, this court has heard no evidence that Macey has tried to attack anyone, including Ms. Knapman, nor any other animal control officer from the last incident to date. There is also no evidence that Macey has ever attacked, bitten or killed any other animal to date. NOTWITHSTANDING MACEY HAS, WHILST AT OR NEAR THE NANAIMO ANIMAL CONTROL SHELTER UNDER TESTING BY M PLANT, ACTED IN A SOMEWHAT ALARMING WAY WITH THREE DECOYS, I BALANCE THAT WITH WHAT I HAVE ALSO OBSERVED BY WAY OF REAL DOGS UNDER CLOSE SUPERVISION BOTH ON AND OFF LEASH CONDUCTED BY MR. GRIFFITHS AT THE NANAIMO ANIMAL CONTROL SHELTER. IN THOSE SCENARIOS MACEY IS SEEN TO BE INTERACTING WITH OTHER DOGS, AND WITH MR. GRIFFITHS, IN A COMPLETELY NORMAL PATTERN IN A STRESSFUL ENVIRONMENT FOR THE DOG.
56. Moreover, whilst Ms. Plant has extensive experience, she could not give a definitive opinion as to whether this dog would be a danger to humans or other animals in the future. Furthermore, Ms. Plant certainly could not say other options will not work for Macey. Indeed, Ms. Plant offered certain recommendations in her report. Her recommendations speak for themselves; Ms. Plant has not opined that Macey cannot be rehabilitated. In fact, Ms. Plant has never recommended that a dog be humanely euthanized, including this dog Macey in the case at bar.
{This is an admission by Ms. Plant but not corroborated. If anyone has had a dog in training with Ms. Lisbeth Plant where she recommended your dog be drugged or euthanized because of its behaviour and its inability to be trained, we kindly ask that you send us a detailed and signed document detailing this experience. The same goes for any other dog owner who has been told the same thing by their 'dog trainer' or veterinarian. (I have many incredible and passionate veterinarians across Vancouver Island that support me and recommend their clients contact me for help with their reactive or aggressive dog. Unfortunately some veterinarians are still having trouble accepting the truth.) Ms. Plant denied taking Mr. Aubie and Macey on as a client after Macey bit the first person. She does not work with or does board and train with aggressive dogs but yet she is an expert on 'aggressive' dogs.}
57. In conclusion, whilst this court may have some reservations about Macey, it is my view that, on balance, and upon careful reflection of the evidence, I am not satisfied that the City of Nanaimo has discharged the burden required of it in this application. I say this given my aforementioned comments above. This by no means is a criticism of the City's witnesses in general. However, I am not satisfied that Macey be declared a dangerous dog as is defined in the statute and interpreted in the case law.
58. I find that animal control officer Dishkin's opinion, coupled with that of kennel keeper Knapman, to be objectively unreasonable on the totality of the evidence. Both of those individuals attempted to go much further than Ms. Plant and I do not consider them to have given reasonable opinions upon reflection of the evidence I have heard and reviewed in this case; that Macey is likely to kill or seriously injure a person in the future.
59. However, despite my finding, even if Macey was found to be a dangerous dog as defined in the statute, Macey does not pose such an "unreasonable risk to the public" in that she would kill or seriously injure someone in the future that warrants her euthanization. Even Ms. Plant does not make a recommendation for destruction of Macey and opined that rehabilitation should be attempted.
Disposition:
60. Accordingly, l decline to make an order that Macey be declared a dangerous dog.
61. Therefore, the application by the City of Nanaimo is dismissed and Macey is ordered to be released back to her owner, Mr. Aubie, forthwith.
{PS: I drove to Nanaimo to meet Mr. Aubie at the Nanaimo animal control shelter the day he won the case and they refused to release Macey unless Mr. Aubie signed a waiver releasing them from any liability for physical or psychological injures she may have sustained while in their care in solitary confinement for 16 months. Mr. Aubie was not going to sign such a document and the Nanaimo animal control shelter refused to give Macey to him and to follow a court order. It wasn't until I got on the phone with the RCMP that they brought Macey out and gave her to Mr. Aubie. Right to the end they still wanted to screw with Mr. Aubie and his dog, and would have again succeeded if I was not there. If your city is intent on killing your dog, especially Nanaimo, I am the only one who will fight to the death for you and your dog. Pack leaders will always fight to the death to protect their pack. That is the level of trust and respect a pack of dogs has for each other. Let's show Mr. Aubie and his family just how large his extended pack is here in British Columbia. Mr. Aubie is truly the kindest and best of men as is clearly seen in his extremely well mannered, respectful, happy and balanced children and puppy.}
Thank you in advance for your support.
Peace My Friends.
Organizer
Ken Griffiths
Organizer
Black Creek, BC