Appeal filed Aug. 1: another marathon begins

The reason the judge told HRM that they must wait to take any action until after August 1 was because that was the last day to file an appeal of any kind before the Supreme Court.

I dearly wish it weren't so, but the outcome of this trial was a very odd twist, not what the law envisages, and certainly not what anybody I know expected. The judge waited till weeks after the trial was finished to deny motions I filed before it started and mid-stream: one to dismiss the charges on constitutional grounds, one moving to dismiss evidence as inadmissible, and a motion declare a mistrial. Motions to dismiss are heard before trials begin, and usually decided on the same day. Mine was to be heard orally on March 2. Instead, I ended up filing it in writing, and it was never argued in the courtroom.

The other motions were handled in similar fashion; written arguments were never even completed for them.

Though I had prepared the oral motion to dismiss with a lot of effort, a lot of notes, and a lot of brain cells, March 2 was a very wintery day that kept the tow trucks very busy, and my car went out of control not far from my house, skidding and swerving around a curve on solid ice. Thankfully, a street sign stopped it from flipping into a 12 foot drop at the side of the road, the opposite side, where there was no ditch to speak of, just the drop, and a few trees. I knew I'd be late, but not how late: it took an hour and 15 minutes for CAA to arrive, then another 45 minutes to free my car, which had lodged against the sign with the front tires pitched up in the air. It was not easy getting out of the car and I wrenched my lower back in the process, possibly also in the swerve (I don't know, but it hurt badly enough to force me to a clinic by the end of the day, where a doctor gave me some serious muscle relaxants).
I phoned the court right away, and again 45 minutes later; just to be sure the message got through, I enlisted the aid of a neighbor to call as well. The first time, a clerk answered; the next few times, I got voicemail. I left more messages for the judge and the prosecutor that it would be some time and I would keep them posted, also gave my cell number for a reply if they wished. By the time the tow operator arrived, I was frozen solid, and went home to warm up brielfy and call the court and HRM once more to let them know I was on my way. I called the HRM legal office as well, getting voicemail again. Unfortunately, once on the road, a red light told me I had to stop for gas. The tow operator had run my engine for a half hour or more in the process of extricating the car and used it all up! So it was around midday when I got to Dartmouth Provincial Court. Having received no calls, and being greeted without a word by a few friends, I was totally unprepared to hear them say they had heard testimony and were "on a break" - a break from what?? What testimony? I had no idea that the judge had decided to go ahead with the trial itself, dispensing with my oral motion to dismiss the charges, which, if successful, would have ended the trial before it began.

I was already shaken from the near-miss and the cold; now I was in utter shock. Learning that I could submit the motion in written form was a bit of a relief, but it changed everything. Now I was in a very scary situation. Witnesses had already testified, and evidence had been admitted to which I had intended to object (as I indicated in my preliminary brief). And also, the judge, who held a vior dire in my absence but neglected to mention that, was now requiring me to cross-examine two witnesses whose original testimony I hadn't heard. She simply said, "Well, you have their statements, I presume?" - meaning their 2010 statements to the HRM animal control officer and the RCMP (which are on BrindiJustice.com). Yes, I had them, I had read them as well, but of course, my memory of them was hardly fresh. Back in 2010, two days were set aside for this trial, and my understanding was that the first one was one for my "charter" motion, the second, on March 16, for the trial itself, if the motion failed.
So of course, I had focused on the motion presentation. But now the judge and prosecutor shrugged off the whole idea behind the schedule; in fact, the prosecutor had called five witnesses to appear at 9:30 - the time I was to present my motion. I had warned her in advance that they would not be needed, because my presentation would take time, plus with replies and rebuttals, it was unlikely they could be called. But she called them in anyway. The judge told me that she was told I had said I'd arrive at 10:45 am, and so she offered to start the trial. I had never said anything of the kind, in fact, simply because I had no idea when the tow truck would arrive, but I had the feeling the judge doubted my word, preferring to believe whatever person had given her that information. She scolded me, in fact, and gave me the impression she was more concerned about the witnesses than the proceedings, or, I have to say, my condition. (By this time my back was starting to hurt a lot, and I had to ask for permission to sit.)

So one thing let to another, far too many things to recount here. Suffice it to say, things went wildly, more twists happened, and nothing flowed in the usual manner, even taking into consideration that these charges normally took up a half-hour in court, not two days. These cases are usually heard within a month or so of the incident, not 16 months. In fact, one experienced court observer was stunned enough to say, "They did everything backwards!"

By the next court appearance on March 16, I had submitted the written motion to dismiss and prepared a few more. My trainer, Susan Jordan, testified, and I cross-examined two more Crown witnesses. Then, though I didn't even get the chance to change my not guilty plea - or even know by then whether there would be another court day (the judge had said on March 2 that it must end March 16), let alone what her decision would be on the motion to dismiss, I decided to testify, hoping to straighten out a lot of exaggeration and distortion created by the prosecutor. Probably a bad idea, but I don't know what else I could have done under the circumstances. Two lawyers I consulted between the court dates were astonished and supportive of filing a motion to declare a mistrial, which had no chance of succeeding either, but was advisable, they said, as a prelude to an appeal.

An appeal - the very last thing on earth I want, after a trial date set 13 months after an incident, and taking place another five months later due to an adjournment I had to ask for at the last minute because I injured myself two days before the original November date. (A heavy concrete block slipped out of my grip, falling on my own fingers; I moved my hand as fast as I could, but one finger got caught, and a knuckle was split open - hurt like mad, could not think straight for days. As with the ice and the road sign, I had narrowly escaped permanent harm - not enough to satisfy the court that it was a legitimate reason for an adjournment, evidently, as would become clear later, in the judge's oral verdict.)

All this time Brindi was still locked up, unlawfully, as far as I could tell. I was desperate to get her out, haven't even seen her. And though the judge seemed to share that concern, and said the trial must conclude March 16, at the end of that day she announced that it would "continue" May 10. She would review my written motion-  which, it has to be said, entailed so much more work than making an oral motion - and, rather than setting another court day for oral arguments/rebuttals from both sides, the prosecutor would have to reply in writing. If I wished, I could rebut that as well. She refused both my request to withdraw the motions altogether, to simply speed things up (this is all in the transcripts, incidentally, and audio recordings), and my plea for her to consider releasing Brindi pending the outcome - in fact, she claimed she did not read the letters the vet had submitted, calling them "hearsay". I believe this was because I had not subpoena'd the vet to come to court, where HRM would have the right to question her - but the fact is, a. it would have caused her a great deal of trouble to leave her practice, and b. she was not testifying to anything related to the charges, but appealing for Brindi to be released pending the outcome, based on health concerns. Also, in terms of a "reliable source" and the definition of hearsay, the vet was no stranger to HRM; the city had been allowing Brindi to visit her clinic on a nearly monthly basis since 2010, and had received numerous reports throughout - even followed her direction.

Even more disconcerting, it was never clear what was going to take place on May 10 - would there be a continued hearing? My attempts to find out, via faxes to the court, led nowhere. I had to prepare for anything and everything, which is of course impossible. In the event, on May 10, there was no more actual "court time". After dismissing my motions (overlooking one as well), the judge simply announced her decisions on the verdicts. Then, rather than set a date for a sentencing hearing, she suddenly decided on a "process" of accepting written submissions only: no more court time, no more opportunity to bring in further witnesses, experts, etc., to be questioned: they would only be able to submit a written statement. It was another mountain of work, and very confusing. And, needless to say, she again set a deadline far into the future, so that Brindi would languish even longer: June 26. I posted about that statement already. Now, on May 10, her reasons for not having a sentencing hearing (which is what was done in the past, and is the norm) seemed rather vague; she made some mention of it all making things easier for me, as opposed to "viva voce" testimony. I don't claim to be good at this stuff, but I had been through an entire trial before, plus the current one, representing myself; I was already accustomed to thinking and speaking on my feet. She even complimented my efforts on March 2, in fact. Then, on June 26, she spoke in a different way about her decision not to hold a sentencing hearing, saying that it was done that way because the trial had already taken up so much time. Two days in court is not exactly a long time, though. And, the 2010 trial (heard by Judge Murphy) took up two court days plus a full day for the sentencing hearing. So this leaves me even more puzzled, to say the least.

And in the end, after all that, the judge didn't really finish her job of deciding. She left half the decision up to HRM.

So I have filed an appeal of both the verdict and the sentence - the verdicts of guilty on charges of owning a dog that attacks, owning a dog that runs at large, and violating a muzzle order; the sentence of fines for me, and turning Brindi over to HRM to presumably "assess" in the "usual" way - expressly avoiding an actual qualified trainer in favor of pound personnel (although this would not alter the results, in Brindi's case, since they all like her).

The hitch is, the judge neglected to set a deadline for HRM to do an assessment and make a decision - a decision that it's already made many times over, of course, choosing not to have Brindi assessed at any juncture.

So - no deadline for HRM, no decision made, at least, not in the five weeks or so between June 26 and August 1, other than the decision to not make the assessment results - yet pending - known to me and/or the publi (note - the Aug. 1 deadline set by the appeal period restricted HRM from either giving Brindi to somebody else or putting her down; it did not prevent the city from having her assessed during that time.)

Are you tired yet? I sure am. Pretty despondent, too. I have read enough to know that appeals are very complicated: the majority of them, - maybe 70%? - fail, and worst of all, they typically take a long time. So now the question is, will a Supreme Court justice be kind enough to allow Brindi to be fostered while the appeal unfolds over the coming months?? I don't know, but I plan to find out, hopefully by the end of this month. In the meantime, HRM has said it would hold off on taking any action (yet undetermined anyhow) on Brindi.

September 27 will mark the second year of her second detention. She was four when they first took her; now she is nine. I watch other dog cases unfold with astonishment, such as the two pit bulls released last February after a judge decided that three witnesses were not enough to identify them as the killers of a shih tzu "without a reasonable doubt" (not a usual test for such things, by the way). I just don't know what to think anymore.