Who Let the Dogs Out? Supreme Court Dismisses Leave-to-Appeal Applications from Aggrieved Pit Bull Owner, Convicted Terrorist Forger, Alleged Maniac, and Hell’s Angel
June 12, 2009
Dan Shouldice
The Supreme Court of Canada denied applications for leave to appeal in several cases on June 11, 2009, including an Ontario woman’s challenge of the provincial ban on pit bull dogs. The Supreme Court also declined to hear appeals in: the extradition case of an alleged Islamic terrorist; the case of a B.C. man claiming the Vancouver General Hospital violated his constitutional rights; and a criminal case in which the accused argued his right to a fair trial was breached.[1]
In keeping with long-standing practice, the Supreme Court did not issue reasons for dismissing the leave applications. The refusal of the Court to hear the appeals, however, does not necessarily mean the Court thinks the lower court rightly decided the case.[2]
In 2005, the Ontario legislature amended the Dog Owners’ Liability Act[3] to ban the breeding, sale and ownership of pit bull dogs.[4] Pit bulls already owned in the province (“restricted pit bulls”) are subject to strict rules, such as sterilization and being leashed and muzzled in public places.[5] Catherine Cochrane owns a restricted pit bull named Chess, adopted from the Humane Society.[6] Ms. Cochrane challenged Ontario’s pit bull ban on three constitutional grounds.
Primarily, Ms. Cochrane argued that the “total ban is grossly disproportionate to the risk pit bulls pose to public safety, rendering the law unconstitutionally overbroad, and that the law fails to provide an intelligible definition of pit bulls, rendering the law unconstitutionally vague.”[7] Laws that are found to be unconstitutionally overbroad or vague are breaches of the principles of fundamental justice guaranteed under section 7 of the Charter.
The Court of Appeal agreed with the lower court judge in finding that the section 7 “overbreadth” claim failed because the legislature had acted on a “reasonable apprehension of harm.”[8] The lower court judge had held that the definition of pit bull in the Act[9] was sufficiently precise to notify citizens which dogs were banned. However, the inclusion of “a pit bull terrier” was unconstitutionally vague because it included “an undefined number of dogs.”[10] Therefore, the judge struck the phrase from the Act. The Court of Appeal disagreed and restored the original wording on the basis that, when read in the context of “a more comprehensive definition,” the phrasing “a pit bull terrier” was sufficiently precise.[11]
Ms. Cochrane also challenged a provision of the Act that allowed the Crown to produce a veterinarian certificate certifying a dog is a pit bull. She claimed that this provision violates the right to a fair trial and presumption of innocence guaranteed by section 11(d) of the Charter.[12] The lower court judge agreed and severed the provision from the Act.[13] The Court of Appeal reversed this finding on the grounds that such a certificate would only be “proof” the dog was a pit bull if the accused was to leave it unanswered. As such, it was a “tactical burden” more than an evidentiary burden.[14]
Finally, Ms. Cochrane argued that the definition of “pit bull” should be struck down because it frustrates the purpose of the federal Animal Pedigree Act, which already contains a scheme for identifying dogs. The doctrine of paramountcy provides that if there is an inconsistency between federal and provincial legislation, the provincial legislation is inoperative for the extent of the inconsistency. The lower court judge found there was no inconsistency because the purpose of the federal Act is to enhance the stock of animals that have commercial value, while the purpose of the Ontario pit bull ban is to protect the public from the perceived danger of pit bulls.[15] This issue was not argued before the Court of Appeal.
The refusal of the Supreme Court to hear Ms. Cochrane’s appeal effectively upholds the Ontario pit bull ban as it stands.
Abdellah Ouzghar, a Moroccan-born Canadian citizen, challenged his extradition to France, where he was convicted in absentia of forging passports and membership in a terrorist organization. The French government claims Ouzghar is a member of a Canadian cell of an Islamic terrorist organization, the Muhajaddin Katiba (Holy War Battalion). The extradition judge ordered Ouzghar’s surrender to France for the forgery charges, but acquitted the alleged terrorist on the charge of membership in a terrorist organization. The Minister of Justice nonetheless ordered Ouzghar’s extradition on all charges, including the terrorism charge.[16]
Before the Ontario Court of Appeal, Ouzghar claimed his Charter section 6(1) right to enter, remain in or leave Canada was violated by abuses of due process by the Minister of Justice, and on the grounds that France lacked jurisdiction in the matter. The court found no due process abuses, and concluded that French jurisdiction was validly based on armed robberies and terrorist plots foiled in France during 1996.[17]
The court also found that the Minister’s order to extradite Ouzghar on the charge of membership in a terrorist organization was reasonable. It held that section 467.1 of the Canadian Criminal Code (as it was in 1996) creates the offence of participating in criminal organization activities,[18] while the French Penal Code defines membership in a terrorist organization as including forgery done for the purpose of furthering terrorist activities.[19] Thus, the Minister reasonably concluded that the French charge of membership in a terrorist organization was sufficiently different from the Canadian charge for which Ouzghar was discharged.[20]
The Ontario Court of Appeal upheld the order to extradite Ouzghar. The decision of the Supreme Court to deny Ouzghar’s leave to appeal paves the way for the alleged terrorist to be tried in a French court.
In May 1998, Stephen Mullins voluntarily sought treatment at the Vancouver General Hospital, a designated psychiatric assessment unit under B.C.’s Mental Health Act (MHA), after suffering from stress and a panic attack. Doctors at the hospital determined that Mullins required treatment for mania, and detained and medicated him for five days against his wishes.[21] Mullins sued the hospital and staff for negligence, false imprisonment and battery.[22]
Mr. Mullins also claimed that the involuntary hospitalization violated his Charter rights, specifically his right to counsel (section 10(b)) and unreasonable search and seizure and arbitrary detention (sections 8 and 9). Furthermore, he challenged the provisions of the MHA on the grounds they were unconstitutionally vague.[23] The B.C. Court of Appeal agreed with the trial judge that there was no breach of Mullins’s Charter rights.[24]
Mr. Mullins ultimately claimed that B.C.’s Health Care (Consent) and Care Facility (Admission) Act (HCCA) violated his equality rights as guaranteed by section 15 of the Charter. He argued that the HCCA grants adults the right to refuse treatment, while at the same time excluding this right for persons covered by the MHA, and it therefore violates the equality rights of persons suffering from mental disorders.
The Court of Appeal agreed with the lower court that Mullins could not challenge the HCCA because he failed to establish he had a direct or public interest standing before the court. The court reached this conclusion on the grounds that Mullins refused to consider himself a person suffering from a mental disorder – people Mullins referred to as “lunatics.”[25]
The Supreme Court declined to hear Mullins’s appeal. A future case may present to the Court the issue of whether prohibiting mentally ill persons from refusing medical treatment violates their Charter equality rights.
Ian Grant, a “full patch” member of the Hells Angels, was convicted on drug trafficking charges following a sting operation in which police used a career criminal as an agent to purchase methamphetamines and cocaine from Grant.[26] Despite repeated requests from the police not to contact the accused unless directed, the agent did so on a few occasions. These encounters were not monitored by police.[27]
Mr. Grant claims that during these unmonitored contacts the police agent manipulated him to act in ways that made him appear to be involved in drug trafficking.[28] The absence of audio recordings for the unmonitored contacts limited his ability to make full answer and defence to the charges against him, he alleges, violating his section 11(d) Charter right to a fair trial.[29]
The Manitoba Court of Appeal held that to establish a breach of his Charter rights, Grant would need to prove that the Crown had not met its obligation to disclose evidence, and that there was a “reasonable probability” the non-disclosure would affect his defence.[30] The appeal court upheld the trial judge’s decision that the accused’s right to a fair trial was not breached because there was no evidence the Crown participated in the unmonitored contacts and the defence’s theory of manipulation by the agent was “entirely speculative.”[31]
The denial of leave to appeal to the Supreme Court effectively upholds Grant’s conviction.
[1] “Judgments in Leave Applications” Supreme Court of Canada (11 June 2009).
[2] Hogg, Peter W., Constitutional Law of Canada, 2008 Student ed., (Toronto: Thomson Carswell) at 256.
[3] R.S.O. 1990, c. D.16.
[4] Public Safety Related to Dogs Statute Law Amendment Act, 2005, S.O. 2005, c. 2.
[5] Supra note 3 at s. 7; Cochrane v. Ontario (Attorney General), 2008 ONCA 718 (Cochrane appeal) at para. 2.
[6] Cochrane v. Ontario (Attorney General), (2007), 153 C.R.R. (2d) 78, 2007 CanLII 9231 (ON S.C.) (Cochrane trial) at para. 12.
[7] Cochrane appeal at para. 1.
[8] Ibid. at para. 25.
[9] Supra note 3 at ss. 1(1)(b)-(e) and (2).
[10] Cochrane trial at para. 185.
[11] Cochrane appeal at para. 51.
[12] Ibid. at para. 1.
[13] Cochrane trial at para. 233.
[14] Cochrane appeal at para. 68.
[15] Cochrane trial at para. 254.
[17] France v. Ouzghar, 2009 ONCA 69, at paras. 15-18.
[18] R.S.C. 1985, c. C-46, s. 467.1(1): “Every one who (a) participates in or substantially contributes to the activities of a criminal organization knowing that any or all of the members of the organization engage in or have, within the preceding five years engaged in the commission of a series of indictable offences under this or any other Act of Parliament for each of which the maximum punishment is imprisonment for five years or more, and (b) is party to the commission of an indictable offence for the benefit of, at the direction of or in association with the criminal organization for which the maximum punishment is imprisonment for five years or more is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years.”
[19] French Penal Code, Article 421-1: “The following offences constitute acts of terrorism where they are committed intentionally in connection with an individual or collective undertaking the purpose of which is seriously to disturb the public order through intimidation or terror...[including forgery and forgery related offences].”
[20] Supra note 17 at para. 26.
[21] Mullins v. Levy, 2009 BCCA 6 at paras. 1-27.
[23] Supra note 21 at para. 72.
[24] Ibid. at paras. 75-79.
[25] Ibid. at para. 64.
[26] R. v. Grant (I.M.), 2009 MBCA 9 at para. 1.
[27] Ibid. at para. 10.
[28] Ibid. at para. 13.
[29] Ibid. at para. 11.
[30] Ibid. at para. 27.
[31] Ibid. at paras. 33-34.