Court of Queen’s Bench Justice Suzanne Bensler, in dismissing Tran’s appeal, sealed the fate of four-year-olds Fiji and Disani when she concluded that traffic court Commissioner Jill Taylor’s order on June 15 to destroy the animals because they were too dangerous to remain anywhere in the community was proper.
“I’m mindful that the appellant has given evidence that in her home there was much interaction with humans, then they caused these injuries,” Bensler said of the April 7 attack on Wendy Smith.
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| Donna Tran, right, leaves Calgary Courts Centre with dog advocate Karen Kennedy |
Tran declined to be interviewed outside court.
Her lawyer Andrew Stewart had earlier argued that the commissioner placed too much emphasis on the evidence of expert Crown witness Nikeae Michachuk, a peace officer with Calgary Animal Services who does behavioural assessments of aggressive dogs, who said past history is a gauge of future behaviour.
Municipal prosecutor Ola Malik said the city only seeks euthanasia orders as a last resort and is not something that he is happy about at all.
“But at the end of the day, public health and safety is critical,” he said. “The injuries sustained to the victim, Ms. Smith, were brutal. Those are injuries she’s gonna have to live with.
“At the end of the day, if you have dogs that are not suitable for placement for adoption or show aggression tendencies then we really are left with no alternative.”
Stewart also sought to bring in fresh evidence for Tran through their own expert, Karen Kennedy-Ross, a dog behaviour expert from Los Angeles who has worked extensively with Caesar Milan, known as the Dog Whisperer.
However, Bensler said Tran had not given the prosecution proper notice and it was also unknown what that evidence might be anyway.
“I’m very disappointed. There was a lot of fresh evidence that would have made a tremendous impact on the decision in this case,” Kennedy-Ross said outside court. “Based on the evidence, such as how the dogs were kept and maintained in deplorable conditions in their cages they were kept, as well as one of the dogs had half of its tail missing after being impounded, as well as part of its ears missing and there was blood on the side walls of the cages.”
She said she had numerous rescue agencies in the United States that would have been willing to take in the dogs, to rehabilitate and to train them, as they had been left for seven months in cages with no human contact, no bones and no toys being allowed and sometimes cages only the size of their beds.
Malik said he agreed with the decision to deny fresh evidence as there is a legal test to meet in that regard and he does not believe anything that could have been said would have made any difference worthy of delaying the appeal.
“There’s a real interest in getting these matters dealt with quickly,” he said.
Smith, who has severe scarring on her nose as a result of the bites, was not present at the appeal but was very emotional when speaking to reporters outside court after the dogs were ordered to be put down.
“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.
“I remember knocking on the door to visit an acquaintance and the man just opened it a little. The dogs were barking beside him and the next thing I was bitten in the leg, then the face. It happened so fast.”
Smith said the scarring has made her feel like she doesn’t want to go out in public, because she feels she is not presentable anymore. She still will have to go through more surgeries.
Donna Tran had also wept as she testified at trial, saying she just wanted her dogs home again and would do anything to prevent a future occurrence.
“They’re not aggressive dogs,” she said. “To me, they are trainable and they don’t have an aggressive environment in our home.”
However, under cross-examination, she admitted the dogs had never been trained.
Michachuk had testified she worked with the dogs for two months and they could not bond, as they were too aggressive.
She 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.
She told court that of 2,350 dogs she has assessed, with 161 of them for special aggression assessments, she has only previously recommended three dogs be put down.
(calgaryherald.com - Nov 4, 2012)
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