Donna Tran filed her notice of appeal with Court of Queen’s Bench to overturn commissioner Jill Taylor’s June 15 ruling and it is scheduled to be heard during summary conviction appeals on Nov. 2.
In her appeal, Tran says Taylor “gave too much weight to Nikeae Michalchuk’s expert evidence in assessing the dogs’ behaviour without giving consideration to the context and environment in which the report was created.”
Taylor said in her emotional decision that she had no choice but to order two pit bulls - four-year-old litter mates Disani and Fiji - euthanized for the vicious April 7 attack on Wendy Smith, 35, in which half of her nose was ripped off.
Taylor said, based on all the evidence at trial, her conclusion was that the dogs would probably attack again and could not safely be placed either back in the home or anywhere else.
“They caused very serious injuries and there’s nothing to say it couldn’t happen again,” Taylor said. “It’s not only plausible, but just a matter of time.”
Taylor also fined co-owners Donna Tran and her brother Quoc Tran the minimum $750 for each of the two dogs, for a total penalty of $3,000, after convicting them for their dogs biting Smith. She had come to visit the Trans’ father, who was an acquaintance.
Smith, who has severe scarring on her nose as a result of the bites, was very emotional when speaking to reporters outside court after the ruling.
“I’m happy with the decision, I’m sad for the dogs and I don’t want it to happen again,” Smith said. “I’m innocent and didn’t deserve this. I will live with this for the rest of my life.”
She said the scarring has made her reluctant to go out in public, because she feels she is not presentable anymore.
Donna Tran had wept as she testified at the hearing, telling her lawyer her dogs were not aggressive, are trainable and don’t live in an aggressive environment at her home. However, under cross-examination, she admitted the dogs had never actually been trained.
Michalchuk, a peace officer with Calgary Animal Services who does behavioural assessments of aggressive dogs, said she worked with the dogs over a two-month period prior to the hearing and concluded they could not bond as they were too aggressive.
She also said she could not recommend they be returned to the Tran home under any circumstances and could not be fostered out, for safety reasons, because of their unpredictability.
Michalchuk told court she has assessed 2,350 dogs and only previously recommended that three be put down.
In a written argument for the appeal, Tran’s lawyer Andrew Stewart noted “the peculiar circumstances of how and why Ms. Smith attended to the home were not given any consideration as a completely uncharacteristic event in the lives of the dogs which resulted in an attack.”
Tran is also seeking to bring forward fresh opinion evidence from Karen Kennedy-Ross to show the dogs are not likely to cause serious damage or injury, that the dogs were fed well, not mistreated, abused or neglected and have been around children all their lives.
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| Victim Wendy Smith |
City prosecutor Ola Malik says in his written argument for appeal that the euthanasia order should stand.
“The commissioner went to great lengths to ensure that her decision to order the euthanasia of the appellant’s dogs was carefully considered, having regard to all of the evidence, submissions and legal arguments.
“The commissioner had ample grounds on which to order that the appellant’s dogs be euthanized. The fact that the appellant’s dogs did not have a previous history of aggression is not a critical prerequisite for the commissioner to order euthanasia.”
Malik also said Tran did not give any evidence why she did not have her own expert at trial and her lawyer could have sought an adjournment to find an expert.
(Calgary Herald - October 24, 2012)
