DOGHOUSE BLUES
Supreme Court of Canada refuses to hear death-row B.C. dog’s last-ditch appeal
Punky, a four-year-old blue heeler who has been on doggie death row for 2-1/2 years, has run out of life-saving options after the Supreme Court of Canada said it would not hear his case. The decision, arrived at by a panel of three court justices, was released early Thursday morning. The court does not give reasons why it will not hear a case.
“I wish Punky had been given his chance, that we’d been given the opportunity to present animal law at Canada’s top court, which has never been done as a litigant,” Vancouver lawyer Victoria Shroff said from Mumbai, where she is giving a lecture on international animal law on Friday.
Punky, of a breed developed in Australia to herd cattle, was with his owner Susan Santics in the summer of 2017 in an off-leash park at Spanish Banks when he broke free of Santics’ grip on his leash and attacked a woman sitting on the grass.
Injuries to her leg and hand were described as serious in court documents, and a provincial court judged ruled Punky was a dangerous animal. That meant he had to be put down.
Santics represented herself in the original court case, but since then Shroff and a team of lawyers has been appealing the case upward, until Thursday’s end-of-the-line decision by the Supreme Court not to hear the case.
“It comes down, basically, to the fact that Punky is going to lose his life,” Shroff said. “And Susan is going to lose her companionship. Punky is the closest family she has.”
In upholding the decision of the provincial court judge who ruled Punky was dangerous and had to be destroyed, the B.C. Court of Appeal said that once a dog was found to pose an unacceptable risk to the public, neither the Community Charter or Vancouver Charter grants jurisdiction to make a conditional order, or any other order, short of destruction.
“In my view, given Punky’s past behaviour, temperament and lack of rehabilitation prospects, it was clearly open to the Provincial Court judge to conclude that the dog posed an unacceptable risk to the public and ought to be destroyed,” Justice Patrice Abrioux wrote.
Punky’s legal team has argued all along that capital punishment for animals is not the answer.
The state, they maintain, has no right to declare a dog dangerous without any proof being offered other than a dogcatcher’s say-so. And, once deemed dangerous, the state allows no other options other than ending its life.
“I am hopeful that we are going to get to the point where we are not going to just say, ‘OK, an animal-control officer says this,’ ” Shroff said. “We need to get our facts and our evidence strongly set up before we say we’re going to kill (a pet).
“It’s not an easy balance (between the rights of the public and pet owners), but I think going to capital punishment for animals is not the answer.”
Santics was not immediately available to comment, but Shroff said the owner would do anything to save Punky’s life, including having him adopted by a ranch where his natural instincts to herd and nip would fit in.
“This is a sad day for animals in Canada. We knew it was a long shot because all leave applications are a long shot, but you can’t help but feel gutted when you actually find out it was dismissed and you don’t know why.
“The next step, basically, is Punky can just be killed.”
The Supreme Court of Canada has dismissed an appeal of a B.C. ruling that said it is unconstitutional to limit the ability of a killer to use the defence of provocation at trial.
On Thursday, Canada’s highest court rejected the application for leave to appeal filed last May by the B.C. Prosecution Service in the case of convicted killer Michael Philip Simard.
As is customary in leave applications, no reasons were provided for the decision.
B.C. Supreme Court Justice Douglas Thompson convicted Simard of second-degree murder in March 2019 for the fatal shooting in Courtenay of his former girlfriend Leanne Larocque in October 2016 and her boyfriend Gordon Turner.
He later sentenced Simard to life in prison with no chance of parole for 18 years, noting that Simard had “executed two people after shooting his way into a residence in the middle of the night, and that he killed in a context of intimate-partner violence.”
But after a separate hearing related to the provocation question, Thompson accepted arguments by defence lawyer Matthew Nathanson that a 2015 Criminal Code change limiting the use of the defence was against the Charter.
Thompson said that the amendment, part of the Zero Tolerance for Barbaric Cultural Practices Act, only allowed for the partial defence of provocation in murder cases if the victim had committed an indictable offence punishable by a sentence of five or more years.
Prior to the 2015 change, provocation was defined as “a wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of self-control … if the accused acted on it on the sudden and before there was time for his passion to cool.”
Thompson said the objective of the 2015 change may have been to protect vulnerable women by ensuring that those who might attack them would not be allowed to argue provocation after the fact.
But he ruled that the “amended provisions extend to behaviour far beyond the object of the legislation. Provocation has never been confined to situations in which the victims are vulnerable women.”
A successful provocation defence reduces what would otherwise be a murder verdict to manslaughter.
Nathanson said Thursday that he was pleased with the Supreme Court decision.