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Constitutional challenge leaves Ontario ban in limbo

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Constitutional challenge leaves Ontario ban in limbo

On March 23rd 2007 Judge Herman released her decision in the constitutional challenge of Ontario's breed specific ban. She struck down portions of the law while upholding others.

Specifically, Judge Herman ruled in favour of the applicant on two key points. Agreeing that the ban captured dogs beyond the three purebred breeds that could be defined, she ruled that the terms "pit bull terriers" and "pit bull includes" were unconstitutionally vague. [In a very sad irony, this tightening excludes the dogs the Attorney General intended to ban.] She also ruled that the portion of the law that required owners to prove their dogs were not "pit bulls" and that allowed the government to submit a certificate as proof that a dog was a "pit bull" contravened s 11(d) of the Charter that could not be justified under section 1.

She also ruled, however, that "... while the dangerousness of pit bulls is inconclusive and conflicting, the legislature had a "reasonable apprehension of harm" and that "... in the face of conflicting evidence, it was open to the legislature to choose to target all pit bulls."

Judge Herman has not stated what the "remedies" will be in response to her ruling. Both parties, Clayton Ruby and the Attorney General, need to go before her to argue what should be done to correct the unconstitutional parts of the law.

"Mr Bryant has got to try to convince her that she should rewrite the legislation in accordance with her judgement and sustain it in rewritten form," Clayton Ruby explained on a CFRB interview on March 26, 2007. "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."

Owners of affected dogs in the province should proceed with caution as there has been much confusion about the meaning of this ruling and it is difficult to say what individual animal control offices will do.

The full text of Judge Herman's ruling can be found online:
http://www.canlii.org/en/on/onsc/doc/2007/2007canlii9230/2007canlii9230.html