I'm no apologist for the pit bull. My forearm bears a small scar to remind me of the awesome power of dogs bred for fighting. Nonetheless, I am not a big fan of the Dog Owners' Liability Act - the "just say no to pit bulls" legislation.
I've seen most of the statistics. There is no epidemic of vicious dog attacks. The pit bull may be responsible for a large proportion of dog bites, but the statistics also point a finger at German shepherds, golden retrievers and the furry chow chow.
Even if the pit bull were the sole culprit, it would be impossible to implement a meaningful ban of a specific breed in light of the strange world of inbreeding, crossbreeding and genetic chaos.
We are an ingenious species, for better or worse, and just as underground chemists developed designer drugs to circumvent prohibitions on specific chemical compounds, so will dog breeders develop designer dogs.
It's said that the pit bull is genetically predisposed to fight and attack. This may be true, but predisposition is not predestination. The vast majority of these dogs are obedient and friendly. Clearly, nurture defeats nature in this debate.
Putting aside cases of true accidents and the rare psychopathic dog, a dog bite does not speak to the intrinsic evil of the beast. It is more a reflection of careless and indifferent humans who run their tough dogs off-leash and unmuzzled.
The Dog Owners' Liability Act does punish current owners who carelessly allow their pit bulls to roam free, but it also descends into much more sinister territory. As of October 28, 2005, it became an offence to own, sell or breed a pit bull. Mandatory euthanization orders will be employed to make Ontario a pit-bull-free province in the near future.
The constitutionality of the law is being challenged in court this week. The challenge is not based upon the tenable public policy argument that the law will prove to be ineffective. You cannot bring a constitutional challenge simply because you think a law is bad public policy; the Constitution does not protect us from stupid laws. You have to package the challenge in fancy constitutional terminology to disguise the fact that you're questioning the merits, or the wisdom, of the law.
One of the few accepted constitu-tional challenges to the wisdom of legislation is the vagueness doctrine. If a law is too vague to provide clear and coherent guidance to citizens and public officials, then it violates Section 7 of the Charter, the right to life, liberty and security of the person.
It is argued by lawyers challenging the pit bull legislation that the definition of "pit bull" is constitutionally vague. The legislation specifically identifies "pit bull terrier, Staffordshire terrier, American Staffordshire terrier, American pit bull terrier" and any other dog with a "substantially similar" appearance and physical characteristics. This is a problem.
Genetic markers for identifying a dog's breed or a dog of mixed ancestry have yet to be developed, and I do not envy animal control officials who have to determine when dogs share similar physical characteristics.
Last month, for example, a justice of the peace in Sarnia acquitted Jody Kirby of failing to muzzle, leash and sterilize her dog, because the justice was not satisfied that Jody's dog fell within the definition - even though a veterinarian's letter was entered into evidence confirming that the dog had some pit bull features.
But vagueness isn't usually a very successful constitutional argument. Few laws have been invalidated on this basis. Courts always seem to be able to make some sense out of nonsense.
In the 1980s, the Court of Appeal ruled in a vagueness challenge to the crime of "gross indecency" that offensive conduct "may be defined as a marked departure from decent conduct expected of average Canadians in the circumstances." The court can't possibly be serious. Putting aside the fact that I had not seen or heard the word "decent" in a sentence since high school, I can't see how this judicial turn of phrase added any clarity to the term "gross indecency."
Knowing that vagueness challenges rarely succeed, it will be argued by lawyers opposing the pit bull legislation that the proposed ban is overbroad. Section 7 of the Charter is violated when a law overshoots its objective and captures within its scope an abundance of harmless conduct. The argument is predicated on the fact that the legislation makes no provision for dealing with the "overwhelming majority of pit bulls that pose no danger to the public." It is also predicated on the factual assertion of the lawyers that "there is no evidence that pit bulls in Canada are more dangerous than other dogs of similar size."
Again, the argument has merit, but the overbreadth doctrine is about as popular with judges as vagueness.
In challenging our marijuana pos-session law on the basis of overbreadth, I submitted reams of evidence to demonstrate that the harms associated with marijuana are vastly overstated and that the "overwhelming majority" of pot users suffer little or no ill effects. Nonetheless, the Supreme Court of Canada upheld the law and the right of governments to enact laws in the face of inconclusive, and often misleading, factual data.
The courts may not care that much about the constitutional vices of vagueness and overbreadth, but they should care about being recruited as gatekeepers to canine euthanasia.
Courts have a wealth of experience in determining when a person should be held criminally culpable and punished for failing to exercise due care and control of a dog, but they will get lost in the murky waters of deciding when to execute a pit bull, or a pit bull look-alike, that's done nothing wrong.