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Home My WebLink AboutCRPS-07-063 - Dog Designation Appeal Committee - Proposed Amendments to Chapter 530 (Dogs) of Municipal CodeReport To: Councillor B. Vrbanovic, Chair and Members of the Finance and Corporate Services Committee Date of Meeting: May 28, 2007 Submitted By: Dog Designation Appeal Committee Prepared By: C. Goodeve, Committee Administrator - ext: 2278 Wards} Involved: All Date of Report: May 1, 2007 Report No.: CRPS-07-063 Subject: Dog Designation Appeal Committee -Proposed Amendments to Chapter 530 Dogs} of Kitchener Municipal Code RECOMMENDATION: That in accordance with the March 23, 2007 Ontario Superior Court of Justice Decision Chapter 530.1.20 (Pit Bull dog -defined) of the City of Kitchener Municipal Code be amended to read as follows: 530.1.20 Pit Bull dog -defined "Pit Bull dog" means a dog of any age which has the appearance and physical characteristics predominantly conforming to the standards for any of the following breeds, as established by the Canadian Kennel Club or the American Kennel Club or the United Kennel Club as set out in Schedule `C', and determined by the Poundkeeper, namely: (a} American Pit Bull Terrier; (b) Staffordshire Bull Terrier, except a Staffordshire Bull Terrier which is registered with the American Kennel Club or the Canadian Kennel Club; or, (c} American Staffordshire Terrier, except an American Staffordshire Terrier which is registered with the American Kennel Club or the Canadian Kennel Club; and further, That Chapter 530 (Dogs} be amended to incorporate the breed standards set out in Schedule `C', as attached to Corporate Services Department report CRPS-07-063. BACKGROUND: Amendments to the Dog Owners Liability Act ~DOLA} came into force on August 29, 2005 and provided for, among other things, a ban on "pit bulls" in Ontario. On May 15, 16 and 18, 2006 the Ontario Superior Court of Justice heard Cochrane v. Attorney General of Ontario, in which the applicant [Cochrane] called into question the constitutionality of the definition of a "pit bull" prescribed for under DOLA; being: 1. (1 } In this Act, "pit bull" includes, (a) a pit bull terrier, (b) a Staffordshire Bull Terrier, (c) an American Staffordshire Terrier, (d) an American Pit Bull Terrier, (e) a dog that has an appearance and physical characteristics that are substantially similar to those of dogs referred to in any of clauses (a) to (d). (2) In determining whether a dog is a pit bull within the meaning of this Act, a court may have regard to the breed standards established for Staffordshire Bull Terriers, American Staffordshire Terriers or American Pit Bull Terriers by the Canadian Kennel Club, the United Kennel Club, the American Kennel Club or the American Dog Breeders Association. On March 23, 2007 Madam Justice Thea Herman ruled that insofar as the legislature has used the phrases "pit bull includes" and "pit bull terriers" to define a "pit bull", there is insufficient guidance provided to individuals who have to comply with the law, to those who have to enforce it and to courts that have to interpret it. These provisions are, therefore, unconstitutionally vague. REPORT: Chapter 530 (Dogs) of Kitchener's Municipal Code defines a "pit bull" as: a dog of any age which can be identified as a dog of one or more of the following breeds or mixed breeds by the Poundkeeper, namely: (a} Pit Bull Terrier; (b} American Pit Bull Terrier; (c) Pit Bull; (d} Staffordshire Bull Terrier, except a Staffordshire Bull Terrier which is registered with the American Kennel Club or the Canadian Kennel Club; or, (e} American Staffordshire Terrier, except an American Staffordshire Terrier which is registered with the American Kennel Club or the Canadian Kennel Club. Given the similarities between the two definitions, it would seem prudent to amend the City's definition to remove the provisions which are similar to those that were found to be unconstitutionally vague, being: (a) Pit Bull Terrier; and, (c) Pit Bull. In her decision, Madame Justice Herman made reference to the Manitoba Court of Appeal ruling in Manitoba Assn. of Dog Owners Inc. v. Winnipeg (City), which held that as Winnipeg's "pit bull" by-law directly outlines the various breed standards, it provided `reasonable benchmarks' for determining whether a particular dog was a "pit bull". She further advised that the Manitoba Court of Appeal dismissed an appeal to Manitoba Assn. of Dog Owners Inc. v. Winnipeg (City), stating that, "...it is not merely the dog's appearance but its physical characteristics and other standards set out in the by-law which provides `reasonable benchmarks' for the determination of the breed. Furthermore, instead of including dogs that are substantially similar to the mentioned dogs, the Winnipeg by-law provides more precision than DOLA, by referring to dogs whose appearance and physical characteristics predominantly conform to established breed standards." Madame Justice Herman further asserted that in order to withstand Charter scrutiny, the "core" of a by-law should be adequate to give sufficient guidance to individuals so that they know whether they fall within an area of risk. To this, the lack of guidance currently provided for in Chapter 530 (Dogs} may attribute to the difficulty some dog owners have had in definitively concluding whether their dog is a "pit bull". In her decision, Madame Justice Herman stated that the legal standard that the definition has to meet in order to be constitutional is not precision. The court, dog owner or enforcer does not have to be able to conclusively determine that a particular dog falls within the definition. Rather, the definition has to provide a basis for deliberation, standards for enforcers so as to prevent a `standardless sweep' and guidance for dog owners so that they can determine whether there is areal risk that their dog may fall within the definition. Madame Justice Herman commented that while the reference to the three breeds under DOLA does provide sufficient guidance to identify dogs that are substantially similar to those breeds, a mandated reference to the various breed standards similar to the Winnipeg by-law might have been preferable to provide the necessary guidance and/or benchmarks. As a means of providing greater guidance in determining whether a dog falls within the definition of a "pit bull", staff are proposing that Chapter 530 Dogs} be amended to incorporate the breed standards outlined in the attached Schedule `C'. Schedule `C' is modeled after the Winnipeg by- law and sets out the breed standards prescribed by the Canadian Kennel Club, American Kennel Club and United Kennel Club for the Staffordshire Bull Terrier, American Staffordshire Terrier and American Pit Bull Terrier. The inclusion of Schedule `C' would allow the By-law Enforcement Officers responsible for Chapter 530 Dogs} to outline in their `Designation Notices' the exact breed standards a particular dog possesses resultant to that dog's designation as a "pit bull". This would add greater clarity and transparency to the overall designation process, as it would serve to specifically identify to an owner why their dog has been designated. The Kitchener-Waterloo and North Waterloo Humane Society, who are responsible for enforcing Chapter 530 Dogs} and the City's Dog Designation Appeal Committee, have reviewed this report and support of the proposed amendments. FINANCIAL IMPLICATIONS: If the proposed amendments are approved, staff will pursue purchasing measuring wickets, which are used by dog show judges to determine the exact height of a dog. Equipping the By- law Enforcement Officers responsible for Chapter 530 (Dogs) with wickets would allow for enhanced accuracy in determining whether a dog meets the breed standards outlined in Schedule `C'. The estimated cost of the wickets ranges between $35(US) to $150(US), which will be funded through the Dog Designation Appeal Committee budget. Colin Goodeve Committee Administrator