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No evidence Kelowna man caused dog to become dangerous: B.C. Supreme Court

FILE. A gavel sits on a desk. Adrian Wyld / The Canadian Press

A Kelowna man successfully appealed a $1,000 fine for “causing or permitting” his large poodle named Charlie to become a dangerous dog.

Ian Sisett was on the Okanagan College grounds Jan. 29, 2020 when he let Charlie and his two other poodles loose on the field. He had done so many times before with permission and without incident, according to a decision by the B.C. Supreme Court, which set aside the fine.

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That time, however, the dogs ran after a small dog named Spike that was being walked on a leash along a sidewalk adjacent to the field.

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Spike’s owner,  Melanie Michaels, was able to shoo away two dogs, but one was more persistent, B.C. Supreme Court Justice Gary Weatherill wrote in the decision released Friday.

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“Charlie grabbed Spike by the head and shook him, causing significant injuries including a fractured jaw that needed to be wired shut until it healed,” Weatherill wrote.

Spike then required two surgeries to his jaw to ensure healing and he now has a permanently twisted jaw, restricting him to eating softened foods only.

The vet bill for Spike exceeded $6,000 and in a hearing, in the aftermath, Charlie was deemed a dangerous dog and it was found in a provincial court hearing that Sisett caused or permitted him to become dangerous.

Sisset contested just about everything the provincial court concluded.

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He argued that the damage to Spike could have been done after the attack, or by Michaels as she tried to fend off the dog.

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He also claimed the court was prosecutorial, there was a judicial bias, and a lack of evidence to make the determination that Charlie was a dangerous dog.

In Charlie’s defence, Sisett argued that a one-off act of aggression does not make a dangerous dog.

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And, he contended the judge at the original hearing erred when it determined his role in the situation.

Only the latter argument gained tread when presented to the B.C. Supreme Court.

Before one can “cause or permit” a dog to become a dangerous dog, there must be a degree of active participation or control in encouraging a dog to be dangerous, ruled the court. Examples include actively training a dog to attack or seriously injure animals or people, or a state of indifference in knowing a dog has a propensity towards violence, Judge Weatherill wrote.

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“There was no evidence before the (provincial court) that remotely suggested Mr. Sisett knew that Charlie had any such propensity. Indeed, the evidence is to the contrary, that Charlie was a one-year-old playful puppy that liked to sniff other dogs in the same manner most dogs greet each other,” he wrote.

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“There is no evidence that the incident was anything other than a one-off event.”

Weatherill wrote that the provincial court erred in law in concluding that Sisett “caused or permitted” Charlie to become a dangerous dog simply because he was allowed to run off-leash in the field on Jan. 29 2020.

“Allowing a dog to be off-leash in a public area, contrary to a bylaw, does not equate to causing or permitting the dog to be dangerous,” he said, setting aside the conviction.

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