Sentence for woman whose dogs killed cat was valid: court
Crown had appealed a portion of Crystal Smith’s sentence on the grounds it was illegal
A provincial court judge made no error in law when she ordered a dog that had mauled a cat to death to remain in the care of its owner’s daughter, the Newfoundland and Labrador Supreme Court has ruled.
Justice Donald Burrage heard an appeal of Crystal Smith’s sentence last month and issued his decision Monday.
Smith, 42, was convicted in 2019 of unlawfully allowing a pet to cause a hazard and failing to keep a dog tethered or penned. Her two dogs — Keiko, an Amstaff-boston terrier, and Luna, an Amstaffbulldog — had chased a cat in a residential garden and mauled it to death.
Smith had taken the dogs to a gated public tennis court on Stamp’s Lane and let them run off-leash. The dogs escaped through a hole in the fence when she wasn’t looking and made their way to Wishingwell Place, where a resident saw them maul Meshroudi, his neighbour’s pet cat, in his backyard. When Smith and police arrived, the dogs were chasing another cat.
In convicting Smith of the charges, which are liability related only and not criminal, provincial court Judge Lori Marshall said Smith hadn’t done enough to prevent the incident, especially since she had known her dogs were capable of doing harm. Upon sentencing, the court heard from Smith’s then-19-yearold daughter, who had taken possession of Keiko after her mother was found guilty and said she was committed to continuing with training for the dogs.
Marshall sentenced Smith to pay a $900 fine and banned her from having care and control of Keiko. The judge permitted Smith to keep custody of Luna and her other two dogs, but banned her from allowing Luna to reside with children.
Marshall ordered Keiko to stay with Smith’s daughter and said the young woman must surrender the dog to the SPCA if she ever finds herself unable to care for it. Keiko is not allowed to reside with children or other animals.
The Crown appealed the part of the sentence related to Keiko’s ownership, saying it was illegal because Marshall did not have the authority to order Smith’s daughter to keep the dog.
Prosecutor Renée Coates submitted Smith’s daughter can’t be subject to a court order, given she wasn’t a party to any offence. Enforcement of the order would be impossible for that reason, Coates argued, and she pointed to the provincial Animal Health and Protection Act, which specifies that the court can make an order directing an animal in the care of a convicted person to be turned over to the SPCA.
“The Crown is not saying that (Smith’s daughter) is unfit to care for the dog. The SPCA might very well find a home for the dog with her,” Coates said. “The Crown’s submission is there is no alternative ownership clause in the act.”
Coates submitted if the young woman ever wanted to give the dog to friends instead of turning it over to the SPCA, she could do it, since there is no way to enforce an order against someone who is not accused of an offence. The SPCA has the expertise to best decide the dog’s fate, Coates argued.
Smith’s lawyer, Navdeep Kaur, argued the young woman had volunteered to take Keiko and pointed out the Crown had not raised any issue related to her not being a party to the offence during trial.
“She had custody of Keiko at the time of sentencing. The judge maintained status quo,” Kaur argued. “She was willing to accept the order, which entails that the dog would be surrendered to the SPCA for appropriate placement if she can no longer care for it.”
Burrage determined the trial judge had the right to enforce conditions on Smith’s daughter’s voluntary agreement to care for Keiko, and said a breach of those conditions would amount to a court order violation.
“By accepting to care for Keiko, (Smith’s daughter) accepted the judge’s terms of that arrangement,” Burrage ruled. At the time of Smith’s sentencing, she was no longer Keiko’s owner, he determined.
“The decision to leave Keiko in the care of (Smith’s daughter) was in itself not part of her mother’s sentencing, although the decision that the dog not be returned to Crystal Smith was,” Burrage said. “Keiko’s fate, on the other hand, fell squarely within the judge’s broad jurisdiction over nuisance animals.”
When it comes to the SPCA, Burrage said he didn’t want to discount the organization’s important role, but pointed out it’s the court that determines whether an animal can remain with its owner and, if so, on what conditions.
“In doing so, the sentencing judge is called upon to assess, amongst other considerations, the risk to the community,” Burrage wrote. “The sentencing judge did precisely that after hearing evidence from (Smith and her daughter), as well as the dog trainer. Moreover, it is the provincial court judge, not the SPCA, that decides the fate of nuisance animals.”
Burrage dismissed the Crown’s appeal.