August 26, 2016

Chako Rescue Association

Ontario, Canada: Update on the Court Challenge

May 8, 2007

On March 23, 2007 Judge Herman released her decision in the constitutional challenge of Ontario's breed ban.

While she upheld the province's right to ban purebred breeds when faced with a "reasonable apprehension of harm", she also declared that the use of "pit bull terrier" and "pit bull includes" was unconstitutionally vague.

Sections of the law that allowed a vet to provide a certification that could not be cross-examined in court were also declared unconstitutional.

Attorney General Michael Bryant immediately declared a 99% victory in the ruling. However, this appears to be a smoke and mirrors deception, as Judge Herman has effectively eliminated all of the dogs from the ban that the Attorney General originally pointed to as being dangerous.

This ruling seems to tighten the legislation to the purebreds and those dogs that are substantially similar to the purebreds; ironically, the dogs in the media reports that propelled the decision to implement a ban would be highly unlikely to meet this new, tighter definition. It's a very frustrating result for purebred dog owners in the province.

What's more, the judge has not yet ruled on what remedies she will accept to correct the unconstitutional portions of the law.

Clayton Ruby, lawyer for the applicant, when he appeared on the Roy Green show on March 26, 2007, pointed out that both parties must go before Judge Herman to argue what specifically will correct the unconstitutional parts of the law. The scheduled court date is June 14, 2007.

Ruby believes that the Attorney General will likely ask to have the portions of the law that Judge Herman declared unconstitutional eliminated while asking to allow everything else to remain.

"The judge has not yet made a final order she says she wants to hear submissions. Mr Bryant has got to try to convince her that she should rewrite the legislation in accordance with her judgment and sustain it in rewritten form - realizing that she shouldn't do that, that she should send it back to the legislature and let them do it if they want to. At the moment ... the legislation is up in limbo," said Ruby.

It would seem contradictory for the judge to strike down the term "pit bull terrier" as unconstitutionally vague, and then to in essence define the even more generic term "pit bull" by changing the wording of "pit bull includes" to "pit bull means" or "pit bull is". Nonetheless, we must wait until after the June hearing before we learn how what remedies the judge will agree to.

It is still possible that she will strike down the law or that she will instruct Bryant to redraft the legislation.

Ruby: "We didn't get everything we wanted, but we managed to strike some pretty severe holes in what he put together."

Even though the law is currently in limbo, Ruby also recommended that affected owners continue to comply with the law for the time being.

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