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Dogs and people have lived together for up to 100,000 years, to the benefit of both. Most of North America’s 80 million dogs are strictly companion animals but some are working animals such as guide dogs. Dogs evolved from wolf-like ancestors, bred by humans for tameness. While genetically tamer than wolves, dogs still retain some wilder traits, which can be valuable to people, in defending home and family. Yet it can result in mishaps: each year 4.5 million dogs the United States (500,000 /year in Canada) cause bites, fall-related injuries, and psychological harm; 1-2 fatal dog bites also occur annually in Canada. While serious bites are rare and declining in frequency, they are a concern, because children are the main victims. Some differences exist between Canada and the United States in dog-bite occurrence. More fatal human attacks and more dog-pack attacks may occur where sled-dog packs are used for transport in Canada’s rural north. The reasons are unclear but greater use of dogs, starvation and recent interbreeding of some dogs with wolves could be involved.
Due to Canada’s patchwork of statutes, some dog-bite cases may involve a statute (discussed below), while others use the traditional common law remedies of ‘negligence’ and ‘scienter’. Negligence means that an owner did not reasonably consider those who might be at risk of injury from a dog, and take proper precautions, e.g., keeping the dog in a fenced yard. In some negligence cases, if the victim is partly to blame, because they were careless about their own safety, or provoked a dog, courts have found victims ‘contributorily’ liable for the costs of their own injuries.
The other common law approach, scienter, is a ‘strict liability’ concept, where “one keeps a dangerous thing at one’s peril.” If the thing hurts someone, the owner must compensate the victim for the harm. Unlike in negligence, he cannot use the defence that he made all reasonable efforts to prevent any harm. He is strictly liable, no matter how careful he was, if the conditions are met. Victims must prove that: a) the dog acted viciously in the past and b) the owner knew this. Both may be difficult to prove in court, since a dog may have never bitten before, and what counts as `proof of the owner’s knowledge` is unclear if the dog was always gentle with its owners. Thus scienter may make it very difficult for victims to obtain compensation, even if badly injured.
If a victim provoked the dog, this can be a defence to scienter, but what counts as provocation can be confusing. If a victim deliberately teased or abused the dog (e.g., throwing stones at it) this is clearly provocation. Yet it is less clear if a victim had friendly or neutral intentions that the dog misinterpreted: e.g. a stranger startling a sleeping dog by petting it, or approaching its home to deliver mail. Cases tend to take a human (rather than dog`s eye) view of provocation. Animal experts may correct this, but they add cost and delay.
Most Canadian provinces have now replaced scienter with statutes that make victim compensation easier to obtain. All three northern territories and nine of Canada’s ten provinces have a statute, statutory sections or regulations dealing with dog-related injuries. British Columbia has none since its Act was struck down and has not been replaced so far. All are triggered by harm to human beings and domestic animals such as livestock, or sometimes `property`. All allow a dog to be destroyed. Many also impose statutory fines (varying in size) for incidents such as bites, as well as requiring compensation of victims. Prison terms are an alternative in some regions.
While these Acts aim to correct scienter’s injustice to victims, some think they go too far, causing unfairness to responsible owners and non-dangerous dogs. Only two Acts (Prince Edward Island’s and Ontario’s) systematically factor in the dog’s perspective on the circumstances of the bite. While Saskatchewan considers provocation a defence, it is limited to deliberate acts intended to provoke the dog, meaning that accidental acts (e.g., falling on a dog and hurting it) or acts where the intent was friendly but foolish (e.g., petting an unfamiliar, growling dog) would not be ‘provocation’.
Of the eleven Acts, nine remove the old scienter need to prove owner knowledge of a dog’s dangerousness; three of these also remove any need for victims to prove owner negligence, making an owner’s disproof of fault irrelevant. Thus in the three (Manitoba, Ontario and Newfoundland/ Labrador), an owner seemingly cannot escape fines and other penalties despite taking all reasonable precautions to ensure public safety. Of course, a biting dog must have managed to circumvent such precautions, but this could have been due to freak events (e.g., an accident or natural disaster) or the intervening act of another person (a child climbing over a fence). The possibility of an unforeseeable, freak event being responsible for the dog escaping and biting someone seems to be irrelevant under such Acts because the owner can be punished anyway, as if he should have been able to foresee and prevent the bite.
The option of prison terms in the three Acts suggests that they are meant to be a strict liability approach, as they are often described. However, some people argue that such regimes (where an owner cannot escape legal penalties by being responsible and careful) are closer to ‘absolute liability.’ Usually, absolute liability suggests an activity that is harmful or risky to society and is to be deterred. This seems an unfair characterization of most dog ownership, which offers many benefits at relatively low costs.
Overall, Canada’s current statutes could benefit from reform. All focus heavily on the dog’s conduct rather than on the owner’s, which seems misguided, since owner conduct is easier to correct through law, education or other means. An owner-based focus seems likely to better promote owner accountability for dogs in the long-term because focussing on a dog’s actions may simply lead it to be unfairly destroyed as ‘dangerous’, allowing the owner may simply obtain a new dog and act similarly in future. By using a negligence-based standard and focusing on owner conduct, future legal changes should strike a balance between protecting public safety and preserving the ancient bond between people and dogs.
For an in-depth discussion of the dangerous dog laws of Canada, see the Detailed Discussion.
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