Judge spares Diesel the dog's life but refuses to send him back to his owner
A B.C. Supreme Court judge has ruled against a Peachland man who has been fighting the Central Okanagan Regional District for nearly two years over the seizure and confinement of his dog.
Justice Geoffrey Barrow ruled Friday on an appeal launched by Dave Smith, the owner of Diesel, the seven-year-old shepherd-labrador cross at the centre of a long-running and controversial custody battle.
The regional district says Barrow's ruling "clearly confirms the regional district position on the critical importance of responsible dog ownership."
Barrow conditionally set aside a Provincial Court ruling which ordered Diesel’s euthanization. But he agreed with the Provincial Court trial judge that the dog is dangerous and should not be returned to Smith, who he labelled as an irresponsible dog owner. The judges’ conclusion was that Smith was not fit to care for the dog properly.
Smith, understandably upset at the decision, said he does not believe his dog is dangerous but his lawyer said the way the ruling was worded eliminates the possibility of any further appeal.
He also said is very concerned that tickets he was issued by the regional district for the behaviour of his dog, which were not upheld by a lower court, were used in the reasoning by the supreme court judge.
"That's not right and that's not justice," said Smith.
Diesel was apprehended by RDCO dog control officers after he was accused of attacking another dog in 2011. Smith says it was Diesel who was attacked and he simply defended himself.
But Barrow said while he is satisfied Diesel is dangerous, he’s not so dangerous as to be beyond the ability of a responsible dog owner to control.
The judge said he will hear a request by the regional district to make a conditional order to allow the The RDCO to have Diesel anonymously adopted outside the Central Okanagan.
Paul Macklem, the interim chief administrative officer of the regional district said he was pleased with the ruling because it saves Diesel's life and is consistent with the regional district's previous position that protects the public and places Diesel in a new home with another owner.
"This judgment is absolutely in line with what we requested and we stand united with all those people in our community and beyond who wanted a new life for Diesel," said Macklem. The dog has drawn support from many in the community and rallies have been held to have him frees from his nearly two-year confinement.
A offer similar to the judges ruling was made earlier this year to Smith by the RDCO but he balked when the regional district demanded he pay its legal fees and veterinarian bills for Diesel during the time the dog has been confined.
The question of who will have to pay the legal and veterinarian fees will be addressed later by the judge, said Smith.
“We are extremely dismayed that this one case has taken the time and resources of our staff, including an estimated $75,000 in taxpayer funds for legal fees," said Macklem. "That’s money and time that could have been used toward our programming to protect the public and encourage responsible dog ownership, and implementing recommendations presented in the recent dog control service review.”
The unusual and protracted legal action over the apprehension of a dog by dog control officers and is certainly not a normal occurrence, Macklem added.
“Out of the estimated 35,000 dogs in the Central Okanagan, last year 685 dogs were impounded and none of them had to go through this kind of ordeal with a lengthy court proceeding. This and two other cases since 2010 have been extraordinary in the history of the regional district."
He said the the vast majority of infractions are successfully resolved with cooperation of the owner in the interest of public safety without requiring the option of going to court.
But Macklem said he feels it's time to move on and encourage and support responsible dog ownership in the Central Okanagan.