Judge objects to definitions based on functional adaptations rather than pedigree
MONTREAL, Quebec––Quebec Superior Court Judge Louis Gouin on October 3, 2016 suspended enforcement of the newly passed Montreal ban on pit bulls, on the morning it was scheduled to come into effect.
Gouin indicated that he will rule as to whether the suspension should be extended by the end of the day Wednesday, but reporters in the courtroom differed in understanding whether he meant Wednesday, October 5, or Wednesday, October 19.
Gouin could allow enforcement of the Montreal pit bull ban to proceed while appeals against it on constitutional grounds move through the courts over the next several years, could suspend enforcement of specific parts of it, or could suspend the entire ordinance until all legal issues are resolved, as La Presse reporter Christiane Desjardins opined would be most likely.
Judge objected to ordinance before hearing arguments
Before even hearing the legal arguments against the ban, presented by the Montreal SPCA, and in favor of it, presented by Montreal city attorney René Cadieux, Gouin at the outset of the proceedings outlined his own objections to the bylaw adopted on September 28, 2016 by a city council vote of 37-23.
In so doing, Gouin indicated that he misunderstood the fundamental purpose of the Montreal ordinance: to prohibit possession and sale of a category of dogs who are physically and mentally adapted to the purposes of fighting and baiting, collectively known as pit bulls, not to target a specific genetic line.
“How does an owner know whether or not they have a pit bull-type dog, asked Gouin. “If the dog’s great-grandfather was 50% pit bull, does that mean it is a pit bull type under the law? Dogs that have the same look as a pit bull are also under the ban. Does that mean you have to take a picture of it?”
Gouin’s soliloquy also indicated that he had not attentively read the ordinance.
“The law says a dog must be muzzled at all times,” Gouin inaccurately summarized. “Does this mean it has to eat with a muzzle? Common sense indicates that of course a dog can take off its muzzle to eat, but you can’t base a law on common sense,” Gouin said.
In truth, the Montreal ordinance requires pit bulls to be muzzled only when out in public. Pit bulls need not be muzzled in homes, in yards, in kennels, and anywhere else that dogs are normally fed.
“The law says city workers could enter a building to take a person’s dog,” Gouin continued, overlooking that the same warrant requirements would apply as apply to any other search and seizure conducted according to Quebec jurisprudence.
“If I have all these questions, then the owners of pit bull-type dogs must have them as well. These questions must be clarified,” said Gouin.
“The SPCA’s lawyers, Marie-Claude St. Amant and Sibel Ataogul, smiled and nodded as the judge pointed out the need for clarification in the bylaw,” wrote CBC reporter Jaela Bernstien.
Authority to impound
The Montreal SPCA contends not only that the city pit bull ban is inadequately defined, but that the city has no authority to impound dogs who are neither “stray” nor “dangerous” in the sense of having already attacked someone.
Gouin all but ordered the Montreal city council to narrow the scope of the pit bull ban, “perhaps limiting the definition of pit bulls to breed to be extended by crossing,” according to the Journal de Montreal account. By this, Gouin apparently meant that the definition of “pit bull” in the ordinance should be limited to dogs who are of a specific percentage “pit bull” in lineage identifiable by pedigree or DNA testing.
Cadieux pointed out legal precedents that favor the Montreal ordinance, including a 2009 decision by the Supreme Court of Canada to reject hearing an appeal of a verdict upholding the 2005 Ontario ban on pit bulls.
Cadieux explained that the Ontario Court of Appeal found that logic and common sense are sufficient to identify dogs of pit bull type.
“If it walks like a duck and quacks like a duck, it must be a duck,” Cadieux said.
Function vs. form
The Montreal bylaw, as written and passed by the mayor Denis Coderre’s Equipé Denis Coderre party, but opposed unanimously by the minority Project Montreal Party, recognized that pit bulls are bred and cross-bred to function, to have the physical and psychological attributes needed for fighting and baiting, not to form, such as the “breed standards” applied to show dogs of breeds recognized by kennel clubs.
A pit bull, in short, is a member of a class, as are “retrievers,” “sight hounds,” “scent hounds,” “herding dogs,” etc., and may be any “breed” or mix of “breeds” within that class, along with out-crosses meant to enhance the attributes of a fighting dog.
Pit bull attributes
Attributes common to the pit bull class include extra-large jaws; a predisposition to grip and shake a bite victim, rather than biting and retreating; a squat body stance to keep other dogs from attacking their bellies; relatively short ears & tail; metabolism oriented toward quick explosive bursts of activity, as opposed to the pacing and endurance particularly obvious in huskies; indifference to pain while focused on attack (quite unlike wild predators, who will let prey escape rather than risk disabling injury in an attack); very high reactivity to stimulus; lack of inhibition about attacking other animals regardless of size and social cues; and a prey drive unmoderated by the calculation of energy expenditure vs. food gain that is characteristic of all successful wild predators.
Many of these traits are significantly maladaptive for dogs other than fighting dogs, for example dogs kept as pets, street dogs, or members of wild hunting packs, among whom the abilities to respond accurately to social cues and exercise restraint in conflict, rather than risk injury to self or pack mates, are of paramount importance. Since the combination of traits that define a pit bull may come from a variety of mixes of molosser and terrier ancestry, DNA testing is not able to accurately to identify pit bulls, as Mars Inc., the major manufacturer of dog DNA testing kits, admits; but courts in both the U.S. and Canada have repeatedly ruled that pit bulls are clearly, accurately, and easily visually identified by their recognizable adaptations for fighting.