Pit bulls are dangerous and unpredictable dogs that have the potential to attack without warning, the Ontario Court of Appeal said Friday in Cochrane v. Ontario (Attorney General), 2008 ONCA 718 upholding the province's ban on the animals.
The Ontario government enacted the Dog Owners' Liability Act in 2005 to ban the breeding, sale and ownership of pit bulls after several incidents in which the dogs attacked people.
The Appeal Court ruled Friday that the ban on the breed does not violate any constitutional rights, as lawyers had argued.
The law survived a constitutional challenge in March 2007, though some changes were ordered. Superior Court Justice Thea Herman said a ban on "pit bull terriers" was unconstitutionally vague because it didn't refer to a specific type or breed of dog.
But the Appeal Court disagreed, restoring the law to the form in which it was enacted.
"The total ban on pit bulls is not 'arbitrary' or 'grossly disproportionate' in light of the evidence that pit bulls have a tendency to be unpredictable and that even apparently docile pit bulls may attack without warning or provocation" [para 33] .
"This evidence of unpredictability provided the legislature with a sufficient basis to conclude that the protection of public safety required no less drastic measures than a total ban on pit bulls." [para 33].
The Court also held the standard of review for a legislative decision was not whether it was right but whether there was a reasoned basis to support it:
"As I have stated, the test for a breach of s. 7 on grounds of overbreadth is whether the law is “arbitrary” because there is no “reasoned apprehension of harm” or whether the law is “grossly disproportionate” to the legislative objective. To meet that test, the appellant had to satisfy the onus of demonstrating that the legislature did not have a basis for a “reasoned apprehension of harm” from pit bulls or that the action taken by the legislature was “grossly disproportionate” to the risk posed by pit bulls. " [para 25]
The case, while interesting generally, also contains some useful language about presumptions. This analysis is important not only for criminal and quasi-criminal but also in adminstrative law contexts. The Court writes:
"[59] In R. v. Downey, [1992] 2 S.C.R. 10, at p. 21, Cory J. referred to the landmark case of R. v. Oakes [1986] 1 S.C.R. 103, at p. 115, where Dickson C.J. identified two types of presumptions:
Presumptions can be classified into two general categories: presumptions without basic facts and presumptions with basic facts. A presumption without a basic fact is simply a conclusion which is to be drawn until the contrary is proved. A presumption with a basic fact entails a conclusion to be drawn upon proof of the basic fact. [Citations omitted.]
[60] Presumptions without basic facts are the legal starting point for the determination of a factual issue. Presumptions without basic facts relate to placement of the legal or evidentiary burden of proof as a matter of law. The presumption of innocence is the classic example. Until the Crown proves the guilt of the accused beyond a reasonable doubt, the accused is presumed to be innocent.
[61] Presumptions with basic facts operate by either permitting (a permissive presumption) or requiring (a mandatory presumption) the trier of fact to find the presumed fact upon proof of some other “basic fact”. For example, the provision in the Narcotics Control Act at issue in Oakes required the trier of fact to find an intention to traffic drugs (the presumed fact) upon proof of possession of drugs (the basic fact). Similarly, the provision at issue in Downey involved a presumption from basic facts: s. 212(3) of the Criminal Code provided that “[e]vidence that a person lives with or is habitually in the company of prostitutes… is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution”.
[62] As Downey and Oakes make clear, the focus for inquiry in relation to the presumption of innocence guaranteed by s. 11(d) is this: does the legislative provision create a situation where the accused is liable to be convicted despite the existence of a reasonable doubt?"
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