A PROVINCIAL court judge has turned down an application to destroy a dog accused of being dangerous, saying a local government had failed to prove its case.
Cain, a German shepherd, had been kept in the Kitimat-Stikine regional district animal shelter in Thornhill since last April while the regional district sought the destruction order.
But in a ruling Feb. 28, Judge Brian Neal said none of the conditions to declare the dog dangerous had been satisfied.
Cain had not been proven to be a danger to kill or seriously injure a person or another animal by his actions, said Neal in ordering the dog be returned to owner Paul MacNeil of Thornhill.
“The application to destroy Cain is denied and he is to be released forthwith [to MacNeil],” said Neal, adding that he was not going to make an order of conditions that MacNeil had to follow in order to get the dog back.
The court case began last year but was then adjourned and took up two days of testimony this week.
“I don't know whether to laugh or cry,” said MacNeil after court and again when he picked up Cain from the Thornhill animal shelter later in the afternoon of Feb. 28.
On April 5, 2012, MacNeil heard a commotion and noted Cain had got out of his backyard and a large board was out of his fence, which had allowed the animal to escape, said Neal, reviewing the circumstances before sentencing.
A mother and her two sons were out for a walk when they encountered Cain, court heard.
At the intersection of Mountain View and Toynbee, Cain sniffed at the younger boy and bit his arm, which was an unprovoked attack, said Neal.
The boy's mom picked him up and used her foot to keep Cain away, court heard.
Her older boy began to run for home and Cain followed, jumped on his back, knocked him down and stood on his back, court heard.
A young boy who was playing street hockey waved his hockey stick to scare Cain away, said Neal.
The boy saw Cain run toward another boy down the street and bite at his ankle, court heard.
That boy was knocked down into a small ditch and his pant leg was torn but there was no evidence of a bite or of him being injured, court heard.
MacNeil got his other two dogs, Maggie and Trouble, into his truck and drove down the street after Cain; he hoped to entice Cain to get into the truck with them since Cain liked truck rides, court heard.
When the mother returned home, she and her husband decided that their young son's bite wound that broke the skin on his arm didn't need medical attention, court heard.
He didn't seem to suffer any trauma from the incident whereas the older boy was frightened of dogs and clearly suffered some emotional trauma, court heard.
The parents called the RCMP and an officer came out to talk to MacNeil, who subsequently surrendered Cain, court heard.
At the hearing, two experts had widely varying opinions on whether Cain was dangerous, court heard.
Local vet Dr. Tom Sager, who has 31 years experience, based his opinion on the assumption that Cain had made two separate attacks on people in three months, court heard.
There had been an allegation of Cain attacking an unspecified person in March 2012 but there was no evidence to confirm it, court heard.
Sager concluded that Cain was intelligent but aggressive with regard to small children and recommended euthanasia although he never interviewed MacNeil to learn Cain's earlier history, court heard.
Veterinarian Dr. Ledger, who is also a consultant on animal behaviour, examined Cain in November 2012 and again in late February of this year based on certain assumptions from MacNeil and some not admitted into evidence, court heard.
She assumed Cain had been struck by a vehicle and concluded that he was under mild to moderate levels of stress but not considered a vicious dog, court heard.
Afterward, she agreed that even if Cain had not been injured, her opinion would still be the same, said Neal.
During the time Cain was at the shelter since April 5, 2012, MacNeil had difficulties planning visits with Cain and was unsuccessful in attempts to get Cain moved to a Kitimat Humane Society shelter, which he believed had better living conditions, court heard.
There is no doubt that Cain injured the younger boy and his skin was broken with bruising, however no medical treatment was sought, court heard.
“I find the absence of medical treatment did not result in serious injury,” said Neal, adding he did not want to “trivialize the wound” but could not come to the conclusion Cain was a dangerous dog on a balance of probabilities.
As for emotional trauma, he couldn't find that it constituted serious injury and there were no implications on the boy's daily life.
There had been no clear professional evidence that Cain was violent or vicious or had been prior to this incident, and there had been no intervention by animal control officers before this incident, said Neal.
He had no concern that MacNeil was unable to care for his dog or unable to manage the dog's safety with the exception of his prior failure to obtain licences for his dogs.
After court, at the Thornhill animal shelter, MacNeil said he had licences for his other two dogs and was going to take Cain to the Kitimat Humane Society for assessment.
The case has sparked widespread social media comment with supporters of Cain in particular advocating that he be moved to the Kitimat shelter where they said living conditions were better pending a conclusion of the hearing.