nan 2002 SKPC 80 IN THE PROVINCIAL COURT OF SASKATCHEWAN NIPAWIN, SASKATCHEWAN BETWEEN: HER MAJESTY THE QUEEN and SHELDON FEDERUIK G. Parker, Esq. ................................................................................................ Crown Prosecutor R. Saretzky, Esq...................................................................................... Counsel for the Accused (J. Wang, Articling Student) May 8, 2002 DECISION AND May 22, 2002 SENTENCING (ORAL) HALDERMAN, PCJ R. Federuik Decision and Sentence Urban Municipalities Act, s. 135.3(3) [FROM THE TRANSCRIPT, EDITED] MAY 8, 2002: [1] Sheldon Federuik is charged that between the 9th of September and the 25th of September, 2001, at Nipawin, Saskatchewan, he did own a dog, to wit, that without provocation attacks a person, contrary to s. 135.3(3) of The Urban Municipalities Act. With respect to this alleged offence, the Crown must prove beyond reasonable doubt that the offence has been committed, and if the Crown proves on that basis that the offence has been committed, then it’s open to the accused, and necessary for the accused, to establish on balance of probabilities that he took such reasonable steps as were necessary to prevent the offence from occurring. [2] The evidence this afternoon indicated and established that there were four separate incidents in September of 2001 involving Mr. Federuik’s dog. Firstly, on the 9th of September when Mrs. Barks came up the alley towards her house and was frightened by the dog. Secondly, on the 19th of September on the front steps of Mrs. Barks’ house. Thirdly, on the 15th of September (reversing the chronological order) when garage sale was being held at the Barks and Zawislak residence in proximity to Mr. Federuik’s residence. And, fourthly, on the 25th of September when Mr. Federuik’s dog ran through Mrs. Barks’ yard and then was reported to have upset Mr. Zawislak’s daughter. And the issue, as I’ve indicated, is: Has the Crown proven an attack on any of those four occasions? understood Mr. Saretzky to be agreeing that the presumption of non-provocation that’s set out in s. 135.2(1) of The Urban Municipalities Act applies, and that that presumption has not been displaced. [3] Mr. Saretzky provided dictionary definition with respect to the word “attack,” and that definition, as noted it, was, “To set upon violently, to begin battle.” In my view, that definition is not appropriate nor accurate in the context of an attack by an animal. Dogs do not go into battle, not in the ordinary sense of that word, and consider the ordinary sense of that word to be voluntary intention to be involved in some physically violent act. [4] Rather, in the context of The Urban Municipalities Act, the section under which Mr. Federuik is charged, it is my opinion that an attack is an unrequested confrontation of human by dog made in circumstances where the dog exhibits loud and angry-sounding barks, snarls, or growls, and made within close range of the human. If the circumstances disclose that the dog runs toward or up to the human, that makes clearer that the dog’s action is an attack. In the Court’s opinion, common sense and don’t have any law provided to me to the contrary of what consider to be common sense bite is not necessary for there to be an attack, and in that sense the definition of battle again, think, is not apt in that in battle you intend to come into physical not only proximity, but to engage in aggressive and physical contact with the opposing party. [5] If a dog is territorial or protective, and the facts show that the human has, by intruding, been in law provocative, the offence may not be proven beyond a reasonable doubt, but on the evidence in this case I find that on all four dates there was no intrusion which was sufficient to justify an attack or which could be considered as provocation, even if Mr. Saretzky had not conceded the point. [6] Dealing then with the four incidents, the first on September the 9th. The evidence of Mrs. Barks was that she was walking down her alley and toward her house, and that the accused’s dog ran up to her from behind, and then in front of her such that, as find, she had to stop. find that the dog snarled, exhibited distinct signs of vicious, angry behaviour such that she legitimately believed that she might be bitten. Mr. Federuik was the only other witness with respect to this incident. He agreed, as understood his evidence, that the dog, in fact, got out through garbage can enclosure in the fence, but says that the dog didn’t get closer to Mrs. Barks than three feet, and that it went back when he called it. [7] accept the evidence of Mrs. Barks, and disbelieve the evidence of Mr. Federuik. In the Court’s opinion, Mrs. Barks was not discredited on cross-examination as to what she observed or what she felt, and taking the evidence of Mr. Federuik as whole and I’ll refer in few moments to some other of his evidence which causes me to form my conclusion disbelieve his evidence as to what the dog did on that occasion. accordingly find that on the definition of attack, as understand it, that the Crown has established beyond reasonable doubt that there was an attack on Mrs. Barks on September the 9th. [8] Dealing next then and again slightly out of chronological order, just because that’s the way went through this. Dealing with the September 19th incident, which was the dog on the doorstep incident, the only direct evidence was that of Mrs. Barks as to what was observed. The evidence of Mrs. Barks was that the dog was in close proximity, and was snarling and barking, but in that case she was inside of her residence. In the Court’s opinion, the dog’s actions might have justified requiring hearing under the other section of The Urban Munipalities Act, which provides for determination as to whether dog is dangerous or not, but in this case there was not, in the Court’s opinion, any attack on her on that date. do accept her evidence as to what occurred on that occasion, and that evidence, in the Court’s opinion, goes to whether Mr. Federuik took reasonable steps to control his dog, and I’ll deal with that matter at the conclusion of my dealing with each of the incidents. [9] Dealing thirdly, then, with the September 15th incident, the garage sale, the evidence of Ms. Cherepuschak and Mr. Zawislak was that the accused’s dog ran at lady who was leaving the garage sale. Ms. Cherepuschak said in her evidence that the dog came within two feet of the lady, and believe Mr. Zawislak said three feet, and that in their opinion the only reason the dog didn’t get closer was that the lady got into her vehicle and drove away before the dog got any closer. Again, in my opinion, this evidence was not discredited or effectively discounted in cross-examination. contrast that with Mr. Federuik’s evidence that the dog only took few steps towards the lady before he called it back, and Ms. Person’s evidence that she saw nothing untoward happening at all. [10] also take into account, in weighing the evidence and determining the credibility of the various witnesses, Mr. Federuik’s response to the prosecutor regarding the photo of Mr. Federuik’s house window. found him to be less than forthright in his response that he liked the window, and that was the reason that he’d brought copy of the photo along to court with him today. accept, in this case, the Crown’s evidence with respect to the proximity of the animal and the actions of the animal to the lady leaving the garage sale. find that the dog ran at the lady in menacing fashion, did get within three feet of her before she drove away. Mr. Federuik’s evidence, I’m not sure it was heard by others, but understood his evidence in that regard to be that she “burned” away, as recall what he said. On all of the evidence, have no doubt that the Crown has established an attack beyond reasonable doubt. [11] With respect to the fourth incident, that was on the 25th of September, the evidence was that the dog ran through Mrs. Barks’ yard and then ran elsewhere, to the extent that Mr. Zawislak had understood that that was what had caused his daughter’s upset. There’s not any evidence before the Court with respect to an attack on any human. The evidence again goes, in the Court’s opinion, to whether Mr. Federuik took reasonable steps to avoid the offence occurring. [12] And dealing then with that latter matter, whether Mr. Federuik had taken reasonable steps on any of these occasions to ensure that his dog did not attack someone in the fashion prohibited by s. 135.3(3) of The Urban Municipality Act, in my opinion it’s irrelevant at law that after a dog attacks it responds to its owner’s commands. That’s after the fact. But that doesn’t deal with whether an attack, in fact, occurred or whether the dog then does respond if the owner commands it to. Nor in my opinion is it relevant in law that the dog is docile with family members or even with, in this case, Mr. Derbowka. The issue is: Should the owner know that there’s possibility that the animal may attack human, and what does the owner do having such knowledge of that? And in that latter regard, there are seven specific pieces of evidence that I want to point to as backing up my conclusion that Mr. Federuik did not take reasonable steps. [13] There is clear evidence that on the occasion when Mrs. Barks was in her back alley, the dog escaped through the garbage can enclosure. There is similarly evidence that he went through Mrs. Barks’ -- sorry, that there was a second occasion when, on Mr. Federuik’s admission, he came into the back yard and his daughter had either gotten the dog off its logging chain leash, which would indicate that there weren’t reasonable steps taken to prevent a small person, a small child, or the dog from getting free itself. Somehow, inexplicably, the dog got off its leash. Again, both of those either of those possibilities indicate to the Court, without some explanation, that there weren’t reasonable steps being taken, particularly if small child could remove the leash. [14] Thirdly, that there’s clear evidence that the dog was not sufficiently restrained or enclosed, that it ran from its yard and attacked the lady that was attending the garage sale. The evidence was that the dog was at or near Mr. Federuik’s feet, but nevertheless there wasn’t sufficient scheme in place, if could put it that way, by Mr. Federuik to make sure that if the dog decided to get up and leave he wasn’t able to stop it immediately. [15] Fourthly, there’s clear evidence that the dog, in some fashion, was free to run on to Mrs. Barks’ step, and the basis on which the dog was free to do that was not adequately explained, nor was there any suggestion that Mr. Federuik had taken immediate steps just before that to make sure the dog wasn’t on the loose. On the 25th of September incident, the dog was free to run through Mrs. Barks’ back yard and then into the alleyway where it upset Mr. Zawislak’s daughter. [16] Sixthly, that Mr. Federuik considered it necessary in September of 2001 to attempt to keep the dog chained by logging chain affixed to post. This, in the Court’s opinion, doesn’t suggest that he thought he had an animal that should be of no concern to others. logging chain is pretty substantial way of tethering dog, and if person had no concerns at all in that regard, one would not expect dog to be attached to logging chain. [17] And finally, with respect to the matter of the leashing of the dog and the logging chain, Mr. Federuik’s evidence now is that since he’s moved, he continues to keep the dog on logging chain and affixed to four-inch pole inside completely enclosed high fence. All of these, and particularly the fact that he thought it was necessary to chain the dog in September, and he continues to think it’s necessary to chain it and now enclose it, indicates, in the Court’s opinion, the concern that this animal might well cause injury, or at the very least fright to any passerby or person that the dog came into contact with. [18] In light of all of that, conclude that Mr. Federuik has not established that he took reasonable steps such as would exempt him from conviction under this section of The Urban Municipalities Act, and accordingly find him guilty of the incidents alleged on the 9th of September with Mrs. Barks in her yard, and with respect to the lady leaving the garage sale on September the 15th. MAY 22, 2002: Thank you. Well, in passing the sentence that do, Mr. Federuik, take account, obviously, of the evidence that heard at the trial. also take into account the fact that the Province has provided this legislation under which you have been charged, and that both looking at the section you’ve been charged under, and more generally under the entire section dealing with dogs kept by owners, that the purpose of the legislation was to give people in the community who don’t have dogs, or who are neighbours, or who are simply walking down street in an urban community, peace of mind that they’re not going to be run at, let alone bit or badly injured by dog, and the legislation reflects that purpose. And it seems to the Court that it’s appropriate to craft sentence which reflects that general purpose, taking into account, in your case, as Mr. Saretzky says, what you have done yourself to deal with the problem. You do have an animal, which certainly appeared to the people that it ran at and the other people who gave evidence, to have the potential to inflict serious injury. And the fact that it didn’t is fortunate, but it certainly caused those people at whom the dog ran to fear for their personal safety, and think when you have an animal of this size that snarls or barks in vicious-sounding fashion that it’s quite reasonable and objectively reasonable for people on the street and neighbours to be concerned about their safety. [20] Accordingly, with respect to the sentence in this case, I’m of the view, in light of what you’ve done since, that the important consideration is to make sure that this dog does not present a risk to anyone on or off your premises, and my view is that the appropriate fine in the circumstances is $200, and that’s the fine that I impose. [21] In addition, am of the view that: (a) The dog must be kept within an enclosed fence and the fence must be continuous, surrounding the perimeter of your property and include a gate or gates which prevent the dog from exiting the property except when on a leash. (b) That the dog must be kept within the enclosed fence, and unless on a leash shall be chained to a four-by-four post embedded in the ground to a depth of three feet. The chain shall be attached to the post by means of three-quarter-inch diameter eye-bolt or similar attachment, which eye-bolt shall run through the post at height not more than four inches above the ground, and the eye-bolt or similar attachment shall be secured by flat washers on either side of the eye-bolt at the point where the eye-bolt meets the four-by-four. (c) If you remove the dog, and this is in accordance with 5(b) of s. 135.2, if you remove the dog from the enclosed fence, you shall muzzle and leash it in accordance with prescribed criteria (and those criteria are set out in the Regulations), and keep the dog under your direct control and supervision. (d) You shall obtain and keep in effect liability insurance in an amount not less than $300,000 to cover damage or injury caused by the dog. MR. PARKER: wonder if you might set deadline for that? THE COURT: Yes, I’m going to. And you shall within two weeks of today’s date, provide proof of such liability insurance to the Nipawin Detachment of the RCMP. (e) You shall display sign is the sign presently in the front of the property? MR. FEDERUIK: It’s right on the front, right by his dog house. THE COURT: So you shall display a sign on the fence enclosing the dog, warning of the presence of the dog with the following wording, “Guard Dog on Duty, Beware of Dog,” and you shall continue to display the sign in good condition as long as the dog is present on the property. (f) Sub-section (e) of s. 135.2 is simply requirement that you comply with the Regulations and The Animal Disease and Protection Act with respect to detection and control of rabies, but I’m going to include that. (g) I’m going to include clause (g) of 135.2(5) and require that where the dog is moved to different municipality you shall notify the Clerk of that municipality. (h) Where the dog is to be sold or given away, you shall notify any prospective owner of this Court Order before it is sold or given away, and you shall notify the Clerk of the municipality of the name, address and telephone number of any new owner of the dog. And believe that covers all of the conditions that the Court considers are necessary. [22] good number of those Mr. Federuik has already complied with, and unless you have any other conditions or any submissions with respect to those, Mr. Saretzky, those will be the conditions. MR. SARETZKY: think those are satisfactory, Your Honour. nan END OF PROCEEDING ON TAPE RECORDING
The accused was charged with owning a dog that without provocation attacked a person contrary to the Urban Municipality Act s.135.3(3). There were four separate incidents involving the dog in September 2001. At issue was whether the Crown had proven an attack on any of the four occasions. The accused agreed that the presumption of non-provocation set out in s.135.2(1) of the UMA applied and that presumption had not been displaced. HELD: 1)A $200 fine was imposed along with conditions. The dog must be kept within an enclosed continuous fence and chained to a post. There must be a gate preventing exiting except while on a leash and muzzled. The owner must display a sign stating Guard Dog on Duty. 2)If dog is territorial or protective, and the facts show the human has, by intruding, been in law provocative, the offence may not be proven beyond reasonable doubt. On the evidence there was no intrusion sufficient to justify an attack or which could be considered provocation. 3)There were seven specific pieces of evidence which supported the conclusion that the owner did not take reasonable steps to ensure his dog did not attack someone in the fashion prohibited by s.135.3(3). It is irrelevant at law that after dog attacks it responds to its owner's commands. The dog escaped the yard, was off leash and was not sufficiently restrained or enclosed. logging chain affixed to post is substantial way of tethering dog. One would not expect dog to be attached to logging chain if there were no concerns.