The SPCA Takes on Montreal’s “Breed-Specific Legislation” in Court

Just a couple of weeks ago, on September 27^th 2016, Montreal’s Society for the Prevention of Cruelty to Animals (the “SPCA”) filed a motion to the Superior Court of Quebec in Montreal, asking the Court to stay Montreal’s new by-law targeting “pit bull-type” dogs. The motion was filed just hours after the by-law was passed by City Council.

The by-law, known in English as By-Law Concerning Animal Control City of Montreal, by-law 16-060 (27 September 2016), makes it against the law to own a “pit bull-type dog.” This type of dog is defined as:

• a dog belonging to the American pit bull terrier, American Staffordshire terrier or Staffordshire bull terrier race;
• a dog born of a crossbreeding between one of the races mentioned in paragraph (1) and another dog;
• a dog showing several morphological traits of the races and types of crossbreeding listed in paragraphs (1) and (2).

There is only one exception: an owner who already has a “pit bull-type dog” may get a special permit under the by-law in order to keep the dog (s 16). Where the permit is obtained, the owner must accord with certain conditions, including that the dog is to be muzzled at all times in public and be on a leash of a specific length or shorter (s 17).  The dog will also need to be sterilized and micro-chipped. Failure to comply may result in the euthanasia of the animal (s 17).

Currently, as I will discuss further later on, a Quebec Court has issued a stay on the provisions of the by-law that deal with “pit bull-type dogs” pending a hearing to determine the merits of the law. The two main questions around the by-law concern the City of Montreal’s jurisdiction and whether the law is in accordance with other legislation.

The History of Breed-Specific Legislation (“BSL”)

The idea for the by-law was sparked when, earlier this year, a Montreal woman was killed by a dog that authorities believed to be a pit bull. In response to an obvious and terrible tragedy, Montreal’s mayor, Denis Coderre, took to the media almost immediately to show his support for a complete ban on all pit bulls. His support for the by-law has been consistent and he now opposes the Superior Court’s decision on the stay and plans to appeal.

Montreal’s new by-law has attracted international attention from opponents, and many cite this new law as merely the newest of the many pieces of BSL aimed specifically at pit bull dogs. Ontario is among the Canadian jurisdictions that have already banned pit bulls, though cities within the province have differed in their decisions about enforcement (Ottawa has been vocal in not enforcing the ban at all). Ontario’s law makes it illegal to obtain a new pit bull-type dog after the coming into force of the Act, and requires them to be muzzled when out in public. The law was upheld and found to be in accordance with Charter rights in 2008. Additionally, a handful of municipalities, including Winnipeg and Richmond, have bans or significant restrictions on the ownership of pit bulls.

Policy Concerns: Why This Type of Ban Cannot Meet its Objectives 

Through keeping an eye on the media and the public reaction to this new legislation (coming both from Montreal opponents and people across North America), it is clear that I am not alone in thinking that a ban on any specific breed of dog cannot meet the objective of keeping a city or province safe from aggressive and dangerous dogs. Critiques oppose BSL mainly because the legislation is bound to fail in protecting the community from dangerous dogs that are not pit bulls. Additionally, the legislation will lead to more cruelty and potentially the death of pit bull dogs that are in no way dangerous. These types of laws do not aim at the people whose responsibility it is to train and care for these dogs properly. Instead, BSL punishes the dogs by slapping an arbitrary “dangerous” label onto all dogs that belong (or may belong) to a specific breed.

Montreal’s ban goes a bit further, even banning dogs that share similar attributes with pit bulls (though those are not named) and prohibiting animals that have been crossed with pit bulls (to what extent, again, we do not know).

Importantly, the evidence on how much pit bulls attack draws attention to a larger issue. For example, Toronto’s number of dog bites has increased since their ban came into effect and pit bull dogs themselves are much fewer in the city. While there may be some data or experiences to the contrary, it begs the question of why pit bulls may act more aggressively. Legislators ought to be more willing to look at the causes of behavioural difficulties in pit bulls, such as the way animals of this breed are being taught to behave and the abuse that many pit bull dogs are subjected to.

Alberta has been the scene of a different type of legislation on this issue that other Canadian jurisdictions could adopt. Across Alberta, various municipalities ban certain dog behaviours instead of banning pit bulls outright, putting the onus on the people training and caring for the specific dogs. These laws instead provide for fines, restricting the animal from being in certain areas or with children, and include other measures when an animal exhibits a prohibited behaviour. Alternatively, others have suggested laws that target the breeding of pit bulls and other dogs.

The SPCA’s Position

The SPCA has been opposed to this potential ban since the ban was thought up, even announcing back in September that it would cease its dog-control services if the ban were to take effect. The Society noted that it is not within their mandate to put healthy animals in jeopardy, as the law would require. They campaigned against the ban until the day it passed and immediately filed a motion for judicial review of the new by-law to have it declared unconstitutional and inoperative.

Louis J. Gouin JCS of the Superior Court of Quebec suspended the provisions dealing with pit bull-type dogs, finding that, as required by the test for a stay application, the SPCA had proven:

• there is a real and immediate emergency to consider;
• that they would suffer serious prejudice if the stay is not put in place, and
• that, in considering which party will suffer the most from the remedy being granted or rejected, the SPCA had more at stake.

The SPCA’s Position: Municipal jurisdiction

The SPCA’s claim as to the validity of the by-law, which the Court seems to suggest has merit, has a few layers. First, they argue that the City of Montreal does not have jurisdiction to create a law of this nature based on the powers granted to them by Quebec’s Municipal Powers Act. The Act provides that:

63. A local municipality may impound, sell for profit or eliminate a stray or dangerous animal. It may also have an animal suffering from a contagious disease isolated until cured, or eliminated, on a certificate from a veterinary surgeon.

The municipality may also enter into an agreement to authorize a person to enforce a by-law concerning animals. The person with whom the municipality enters into an agreement and the person’s employees have the powers of employees of the municipality for the purposes of the enforcement of the municipal by-law.

The argument is that the law against “pit bull-type dogs” catches a lot of dogs that are not “dangerous” and thus it does not fit into the municipality’s jurisdiction.

The SPCA’s Position: Vagueness

The SPCA also claims that the law is ultra vires because of the vagueness of the law. The vagueness argument comes from the term “pit bull-type,” as well as the terms “crossing” and “characteristics,” which are undefined in the law and remain unclear. Even veterinarians, the SPCA argued, have a difficult time telling exactly what breed of dog they are looking at. And yet, the City’s claim is a “you know it when you see it” type of argument.  The irony of it all is that the dog who attacked the woman this year, which led to this by-law in the first place, was probably not even a pit bull. It makes you wonder how this law can ever be applied in any certain and consistent way.

Quebec’s Animal Protection Laws: A Forceful Tool for Animal Advocates

The claim that the law is ultra vires the City is also grounded on Quebec’s famous new legislation regarding the status of animals. Just last year, the province passed Bill 54 “An act to improve the legal situation of animals” (“The Act“). Now, the Civil Code of Quebec reads:

898.1 Animals are not things. They are sentient beings and have biological needs.

This is in stark contrast with the rest of the country, where animals are considered mere property in the eyes of the law. Quebec’s law also provides for stricter punishment for animal abusers, in large part cleaning up Quebec’s reputation as the worst province for animals.

Symbolically, Quebec’s decision to change their law to recognize some animals as “not things” but instead “sentient beings” with “biological needs” was celebrated, but additionally, as this legal battle is proving, it also provides for a new ground on which animal advocates in Quebec can lay their claims. Justice Gouin notes how the Act states:

4. Any provision of an Act granting a power to a municipality and any provision of a by-law made by a municipality that is inconsistent with a provision of the Act or the regulations is inoperative, unless it provides greater protection to animals.

This provision provides promise towards the goals of Quebec’s efforts to protect animals province-wide. It is also sure to provide interesting judicial consideration of what it means for animals to be “sentient beings” as opposed to “things” or property.

While similar case law in Ontario (mentioned above) framed the breed specific legislation against the Charter rights of the owners of pit bull-type dogs, Montreal’s SPCA is taking a different approach, highlighting the dominance of their new animal welfare laws. The SPCA’s ongoing legal battle with the City of Montreal and the rise of Quebec’s new animal protection laws are just beginning, and are certainty worth paying attention to.