Friday, June 29, 2012

Pin It

My statement to the Court regarding sentencing


VIA FAX AND EMAIL

The Honourable Judge Flora I. Buchan
Dartmouth Provincial Court
277 Pleasant St
Dartmouth, NS B2Y 3S2

Your Honour:

June 22, 2012

RE: R. v. Rogier


Sentencing Submissions


1.     Please accept this letter as my submissions with respect to sentence in the above trial.

Overview

2.     In response to a finding of guilt on the charges, the Crown is seeking an order to have my dog, “Brindi”, destroyed, and fines imposed on me.

Facts

3.    HRM has seized Brindi twice, citing the same claim that she must be destroyed. The original euthanasia order was quashed along with the law used to issue it.

4.     Four times since HRM first seized Brindi in July 2008 under the claim that she must be destroyed, at my request she has been assessed by qualified persons with experience evaluating dogs. In all instances, the results have been quite positive. The most recent assessment carried out one week ago resulted in a finding that she is fit to live in a family home. The extended period of detainment has brought about the need for a period of re-adjustment to relearn housetraining and recover other abilities that any dog would need under the circumstances.

5.     The Crown has submitted the full Decision by Justice Beveridge of the Supreme Court which found that after the first seizure, HRM was procedurally unfair and denied me due process.

6.    Among other things, Justice Beveridge concluded that:

[3] … the statutory decision-maker did not accord to its owner even the most minimal requirements for procedural fairness.
Issues

7.     I am greatly concerned that the Crown has relied extensively on third-hand accounts of the facts, as well as hearsay evidence, with reports dating as far back as 2007. The relevance of such materials to this sentencing decision is very questionable.  

8.    I must point out that the passages taken from the Beveridge Supreme Court decision are derived from an admittedly subjective account given by an animal control officer in an affidavit filed for that proceeding.  Mr. Hamm’s account was revised three times. It is not a reliable statement of facts. That proceeding was a judicial review; at issue was the process of decision making, and detailed submissions on the facts of events were not relevant, as Justice Beveridge noted. Therefore, the Crown representations cannot be considered a proper account of the events.

9.     Rather than third-hand information based on an affidavit by a party pre-disposed to present me in the worst possible light, a properly reliable record would be an official transcript of the 2010 trial. The Crown has not presented this to the Court, and thus the information supplied must be weighed accordingly, if at all.

10.  Furthermore, I would respectfully ask that the Court differentiate all of this material carefully as it approaches sentencing. For instance, the Crown purports to state that all the incidents and reports in question may be equated in terms of seriousness and treated with equal weight. This is not reasonable, as a dog getting loose for a matter of minutes, without incident or damage, is not comparable or equivalent to other types of incidents.

11.  Similarly, apart from the incident at the heart of this very proceeding, HRM chose not to lay charges for any incident up to 2009. This includes the Flower incident, in which a minor injury occurred, and a fine was announced. However, in response to a single email by one party and without any direct input on the matter from myself, HRM issued a muzzle order as a kind of favor to another dog owner.

12.  Justice Beveridge also found that Officer Hamm stated he endeavored to:

[21] … tell her about any policy of HRM that euthanasia would automatically follow in the event she should fail to comply with the order. I note that there is no evidence before me of any such policy.

13. Hamm and HRM nevertheless misinformed the public and myself that they had no choice but to put my dog down. This begs the question of whether the current request has any validity whatsoever, given the lack of serious injury. 

14.  Therefore, while it is true that I was found guilty on two occasions, it is not remotely true that I was given “many chances” prior to my dog being seized in 2008, or at any time. My dog was seized after reported incidents that led to one warning, then a muzzle order.

15.  It is not true, as the Crown and Ms. Rodger claim, that “four orders” were issued and violated, nor should any orders be considered without proper differentiation.

16. A proper account of the facts would:
a.     include in any “history” the fact that considerable training was carried out subsequent to the 2010 trial both in compliance with a court order, and voluntarily continued
b.    include reliable evidence from the record that I intervened quickly in all instances within a matter of seconds, and successfully and safely – including in the Flower incident and the Simms incident.
c.     make clear that because HRM was not willing to consider releasing Brindi, I was compelled to bring a case before the Supreme Court at my cost, which resulted in a ruling against HRM that quashed the euthanasia order and the statute supporting it and awarded costs which were set at $5,000
d.     make clear that the subsequent trial was initiated only after that ruling; in fact I was not charged for any incident until immediately after the ruling, on the day the limit period expired. This may or may not indicate that HRM did not consider the offence serious enough to lay charges at the appropriate time.

17.  With regard to Roberts, whether it is a proper basis in terms of relevance to this decision is in some question:
a.     The case did not occur pursuant to the MGA additional penalty clause; it was done under D-100 which has very different terms.
b.    D-100 does not exclude the necessity of producing proper evidence; in fact, it requires a determination to be made properly, of whether a dog is dangerous
c.     Contrary to my actions in the two instances that led to injury, Mr. Roberts was not aware of the attack at the time and did not intervene to end it.  
d.     The injuries involved in that case were therefore more extensive, and are no comparison to Brindi’s case. 

18. As the Roberts case is also quite atypical of HRM’s handling of dog cases, I would argue that an exception case is not a proper basis for sentencing.

19.  With regard to my responsibility or lack thereof, the Crown has not provided sufficient evidence to back the claim that I am “unwilling and unable to comply”, nor that I am irresponsible, and do not care for other dogs.

20.  While the onus would be on the Crown to prove its claim, I provide materials that support a contrary view in my Supporting Affidavit and Exhibits, including statements by reliable sources, among them Susan Jordan and Dr. Kyra Larkin. Furthermore, analysis of the full record shows that I took care to apologize, and when possible, examine the other animal, offer restitution in the form of vet exams, and other actions that indicate that I took responsibility.

21.  I have volunteered at several animal welfare organizations; I donate to others; and I am in general highly concerned about the welfare of all pets and animals.

22.  I do love my dog Brindi very much, but by no means to the exclusion of others. I do not see that I am required to love all dogs equally, but I cannot say that I do not wish to.

23. The fact that I chose to seek amendments to the animal control laws and made my concerns with the welfare of all dogs in HRM known in public, founding an organization for that purpose, indicates clearly that I am very concerned indeed.

Brindi

1.     The Crown has not disputed the following:

a.     The incident reported on Sept. 14, 2010, involved no life-threatening injury to an animal or a person. 
b.    Brindi has never threatened or attacked a person. 
c.     Legal counsel for HRM has stated that it does not regard Brindi’s behavior as a threat to human life. 
d.     In previous incidents on record, Brindi did not cause a serious and/or life-threatening injury to an animal. The two instances in which injuries were recorded both involved minor wounds that were easily treated with first aid and did not require veterinary treatment.
e.     Brindi is well-known to be peaceful and gentle with children and adults, as attested by numerous affidavits and in-court testimony presented in court proceedings in 2009 and 2010. 
f.      Brindi was well-liked by the SPCA manager and volunteers who cared for her for nearly two years (Court Exhibit No. 2). The same is true of the kennel owner who previously cared for her and allowed her to run and play freely with other dogs for a period of ten days (Exhibit to Supporting Affidavit).
g.    At no time has any Animal Control officer witnessed Brindi behaving aggressively or disobediently. When Animal Control officers approached her to seize her, Brindi was friendly and allowed herself to be leashed and muzzled without resistance.

2.     At no time has any HRM employee witnessed me complying or not complying with the muzzle order or any statute. Furthermore, while Judge Murphy released Brindi to me July 7, 2010, on June 28, 2010, I received a faxed letter from the Crown prosecutor that in my view puts the reliability of Animal Services statements into question: in this letter I am told that Animal Services observed Brindi at my property, unmuzzled – nine days before she was released to me.
3.    I attach further correspondence with notation (Exhibit E to Supporting Affidavit) establishing that contrary to the Crown’s assertions, I took the Court’s orders quite seriously and made several requests to clarify the muzzle order as stated in the decision, reconcile differences among it, the initial order, and the law on muzzling. As the Court chose not to take the opportunity to undertake such clarification, I do not know whether it can be concluded that Judge Murphy truly intended that Brindi be muzzled at all times, which is the sum effect of the Crown’s claims. I would also point to the discussion of the Waddell case in that correspondence.

4.     Moreover, I observe that the Crown’s interpretation conflicts directly with Judge Murphy’s addition of the condition of a dog run. A dog run is clearly unnecessary if a dog is muzzled at all times. I note also that the SPCA did not interpret the muzzle order in the manner that the Crown does (Court Exhibit No. 8) nor did Ms. Jordan, who testified that she did not muzzle Brindi in her car on all occasions (Exhibit K to Supporting Affidavit). I note she was not reprimanded by the Crown.

5.     At no time has HRM commissioned its own evaluation of Brindi’s behavior to support its contention that she is a “dangerous” dog. Its animal control officers are not required to possess or undergo special training in dog behavior, and therefore, are not specifically qualified to determine a dog’s disposition.

6.    As established in her testimony, and cited by the Crown, Valerie Rodger’s decision to seize Brindi was based mainly on the number of incidents or violations she believed took place. Notwithstanding the accuracy thereof, as these were not all “orders” nor in the number cited, it is clear that her decision bore no relevance to Brindi herself in terms of her behavior, but relied on a blanket assumption that the “record” may be equated to and even substituted for a proper assessment of a dog’s behavior. On cross-testimony (Exhibit A to Supporting Affidavit), Ms. Rodger repeatedly evaded questions directed to Brindi as a dog, often reverting back to the muzzle order.

7.     To date, Brindi has been assessed at my request by qualified persons with experience evaluating dogs. In all instances, the results have been quite conclusively positive, even after long periods of isolation from other dogs and the world at large. Any reasonable person would find that this is in itself rather remarkable.

8.    The most recent assessment carried out one week ago by Ms. Jordan (Exhibit to Supporting Affidavit) resulted in a finding that Brindi is fit to live in a family home. The extended period of detainment has brought about the need for a period of re-adjustment to relearn housetraining and recover other abilities that any dog would need under the circumstances.

9.     I note that the current kennelkeeper has taken it upon herself to take time to train Brindi in addition to the usual care given to her. I do not know of any policy or statute that requires such training. As her time would otherwise be misspent, it may be fairly assumed that this is an unequivocal statement that Ms. Graham, a trainer and breeder, does not support HRM’s contention that Brindi must be destroyed.

10.  I refer also to the photo of Brindi that I submitted as an exhibit on March 2. This photo was taken at a party given by the volunteers, manager, and vet at the SPCA. An infant is on the lap of one of the volunteers. All the adults are smiling and affectionate towards Brindi, who is being fed a cake. Brindi is not muzzled. Clearly, these people do not regard Brindi as a dog that is remotely a candidate for destruction due to her behavior. They appear on the contrary to be enjoying her company. I do not believe that they commonly give such parties or take such photos for dogs that they believe should be or will be put down by a court order.

11.  A great number of persons in Halifax and elsewhere who have studied this case are extremely concerned about Brindi’s fate. These are people who have had access to detailed information and the laws and policies involved. They have repeatedly contacted HRM and its officials seeking Brindi’s release. Whereas I would not presume to suggest that their opinion obliges the Court to any particular consideration or any depth of review, I would point out that in HRM’s history, this kind of long-term interest and concern is rather unique. When the public acts in such a way over such a long period, it is a sign of a public perception that some kind of disproportion exists between the prosecuted matter and the sentence contemplated. 

12.  In The City of Vancouver v. Dubois, 2005 BCPC 445 http://canlii.ca/t/1ltsf (Attachment A), the Honourable Judge Skilnick stated:

In [56]      The actions of the dog in not retaliating after being kicked and hit have justified consideration of a form of reprieve.  In saying this, in no way am I retreating from my conclusion that this is a dangerous dog within the meaning of the statute.  The Applicant has met the test of establishing that the dog is likely to kill or seriously injure someone.  The need for an order preventing this from happening has clearly been demonstrated.

13. The dog in that case killed another dog. Brindi has not killed or seriously injured any dog, and as well, on two occasions, she has not retaliated after being kicked: a reprieve seems not unfair. In the 2010 incident two people kicked her at the same time. I wish to emphasize that both David Shea and the Simms volunteered that information and did not waiver from it in their testimony. I witnessed Mr. Shea kick Brindi repeatedly with some force as she reached my property line; Mr. Harold Crowell (Exhibit ) stated in his Affidavit, and testified in court, that Brindi did not make contact with the dogs Mr. Shea was walking, and I can confirm this. We were both rather astounded to see that Brindi did not attempt to retaliate but dodged the blows. In both instances, these people both

a.     intervened in the incident without hesitation, contrary to the Crown’s assertions that no one chose to intervene – incorrectly citing this as a factor that rendered the public “fortunate”, and
b.    were thus clearly unafraid of Brindi as a threat to their safety, confirming by their actions that they do not regard her as such.

Sentence

14.  While I had wished the opportunity to present Charter questions prior to sentencing vis a vis the constitutionality of s. 195, I was not given that option. 

15.  The Court is being asked to link the standard penalties prescribed by law with the additional penalty in a separate statute. This has not been done before and I believe it may be considered creating new law. The consequences of a step requires special consideration, not least in terms of whether it exceeds what the law prescribes or intended to prescribe as set down by the legislative bodies; I include here the HRM Council and the provincial legislature.

16. Under s. 195, however, it cannot be more clear that the Court’s options are not restricted in any way, shape, or form. The Crown concedes the lack of sufficient amount and relevance of case law that might be construed as a test or limit. I do not know what basis Judge Murphy relied on in her decision to view only three options, as she did not indicate it, nor did she hear representations on this issue from both sides.

17.  While I find the Crown’s argumentation rather shocking, particularly in terms of what would be “considered” too low given my knowledge of its practices in this regard, I am fully prepared to pay fines on the charges for which I was convicted. In fact I had already planned to present that option.

18. The question of an additional penalty as requested by the Crown, by its irreversible nature, merits careful consideration under the circumstances, particularly given the lax requirements or absence thereof under the law.

19.  I have experienced the prolonged separation from my dog, with the accompanying expenses of vet monitoring in the amount of over $2500, as punitive, and sufficiently of a degree that may be fairly weighed in determining this sentence, in the manner of “time served”.

20.  I strongly disagree that it would be reasonable or proper to destroy my dog Brindi. I have consulted many vets and trainers and the consensus is that it is not called for. The Crown appears to rely on its own inexpert analysis and statements of other dog owners. To grant this greater weight would set a very dangerous precedent, against much of established law.

21.  It cannot be reasonably argued that Brindi constitutes a public safety threat above and beyond that of any other dog in the municipality, such that she alone must be put down. The Crown has failed to provide sufficiently compelling evidence supporting this assertion. Dogs at play can easily lead to injuries as much as dogs that snap at one another: this is regrettable without doubt, but not a basis for an additional penalty of killing a dog.

22.  I am truly sorry for my actions that led to the current circumstances and do not wish that my dog suffer the consequences of my actions. While the Court may have a less than favorable opinion of me, and while I may have been found guilty on the charges, please do not end her life in order to punish me. In Canada, the death penalty was abolished because it was deemed “cruel and unusual punishment”: surely the same would apply when a being incapable of speaking for itself and that did no serious harm to a dog, let alone a person, and is found over and over again to be trainable and have good qualities, and is widely loved, is put down as an “additional penalty” or under any other guise.

23. I would respectfully ask that the Court return my dog to me with any number of the following conditions:

a.     All prior conditions set by HRM and Judge Murphy including the muzzle order and further training
b.    Additional fines in an amount the Court finds appropriate
c.     Requirement to erect a perimeter fence around my property
d.     Requirement to post “beware of dog” signs around my property, and any other related requirements.
e.     Frequent and regular monitoring of Brindi’s training on an ongoing basis
f.      Liability insurance to an amount deemed fitting by the Court

24.  If the above is not possible, I request that the Court allow my dog to accompany me to a new location outside of HRM and/or in the United States.

25.  If the latter is not possible, I request that the Court order that a suitable home be found for Brindi, ideally outside of HRM, and that Ms. Jordan be involved in the selection of this home.


All of which is respectfully submitted.

Yours truly,

Francesca Rogier
782 East Chezzetcook Road
East Chezzetcook, NS B0J 1N0



cc HRM Legal Services

No comments:

Post a Comment

Comments are moderated.