ST. JOHN’S, NL –
Part of the verdict passed by a provincial court judge on a St. John woman whose dogs killed a cat was illegal, the Crown argued Tuesday.
Prosecutor Renée Coates, in an appeal against Crystal Smith’s ruling, alleged that the trial judge was not empowered to order Smith’s daughter to keep one of the dogs and should have let the SPCA rule instead.
Smith, 42, was convicted in 2019 for illegally allowing a pet to cause a hazard and for failing to jeep a tethered or penned dog. Her two dogs – Keiko, an Amstaff Boston Terrier, and Luna, an Amstaff bulldog – hunted and killed a cat in a home garden.
Smith had taken the dogs to an enclosed public tennis court on Stamp’s Lane and left them on a leash. The dogs escaped through a hole in the fence when she was not looking and made their way to Wishingwell Place, where a resident saw them in his backyard, Maul Meshroudi, his neighbor’s pet cat.
When Smith got to the scene, it took her and the cops almost 30 minutes to house the two dogs that were chasing another cat.
When convicting Smith on the two charges, which are only liability and non-criminal, the provincial court judge Lori Marshall said Smith did not do enough to prevent the incident, especially since she knew her dogs could cause harm .
On conviction, the court heard of Smith’s then 19-year-old daughter, who took possession of Keiko after her mother was found guilty, and said she was determined to continue training the dogs.
Marshall fined Smith $ 900 and forbade her from ever caring for and controlling Keiko again. The judge allowed Smith to keep custody of Luna and her two other dogs, but forbade her from allowing Luna to ever live with children.
Marshall ordered Keiko to stay with Smith’s daughter, saying the young woman must turn the dog over to the SPCA if she is ever unable to look after it. Keiko is also not allowed to live with children or other animals, and both dogs should remain in training for a year.
Coates argued on appeal that Smith’s daughter could not be subject to court order as she was not involved in any crime. The enforcement of the order was therefore impossible, and she referred to the provincial Animal Health and Welfare Act, which provides that the court can issue an order to place an animal in the care of a convicted person to whom it is placed the SPCA is to be handed over.
“The Crown does not say that (Smith’s daughter) is unable to take care of the dog. The SPCA could very well find a home for the dog with her, ”said Coates. “The Crown claims there is no alternative property clause in the law.”
According to Coates, giving a teenager custody of a dog who can’t live with children or other animals is quite a burden.
“I think it would be a dangerous, slippery slope to judge a young woman, and I use the term ‘phrase’ loosely to avoid having young children or other animals.”
If Smith’s daughter ever wanted to give the dog to friends instead of handing it over to the SPCA, Coates argued, she could do so, since there is no way to enforce an order against someone who is not accused of a crime. Coates noted that provincial legislation regarding firearms seized as a result of a crime provides that the weapons can be passed on to third parties. If the same were true of animals, the law would be just as specific, she argued.
“To say that Keiko is no longer a threat to the public would be impossible as the order is not enforceable,” she argued.
Pointing out the practicality of the situation, Judge Donald Burrage said Keiko had been found to be good with the young woman at Smith’s trial.
“If the legislation allows a judge to judge whether an animal should stay or go, why not so that he can judge a suitable home?” he asked. “You are now asking the court, if the dog has been in your care since 2019?”
“Yes,” replied Coates. “In accordance with the legislation.”
Smith’s attorney, Navdeep Kaur, argued the young woman volunteered to take Keiko, noting that the Crown did not raise an issue with her not being involved in the crime during the trial. Keiko is doing fine in the care of Smith’s daughter, Kaur said.
“She had custody of Keiko at the time of the conviction. The judge kept the status quo, ”argued the lawyer. “She was ready to take the order, which means that the dog will be handed over to the SPCA for appropriate housing when they can no longer take care of it. The circumstances are such that they meet the criteria of the owner and the sections of the law would apply to them. While the trial judge’s intention was that Keiko not return to Ms. Smith’s care, the judge’s intention was also that Keiko not go to the SPCA. “
Burrage chose to take some time to review the case before filing a written appeal decision at a later date.
Tara Bradbury covers Justice and Courts in St. John’s