Dogs as weapons

Law360 Canada (December 9, 2024, 11:57 AM EST) --

John L. Hill

In a recently decided case, the Manitoba Court of Appeal upheld a conviction of a woman for assault with a weapon (R. v. Park, 2924 MBCA 93). The weapon was her dog, a six-year-old American pit bull that Park has trained as her pet. The court accepted a victim’s evidence that Park had told the dog to “sic ’em,” and this resulted in bites and injuries to two individuals.

At first glance, the case seems amusing because we rarely think of an animate object as a weapon. However, the definition of a weapon is expanding in Canada and the United States. In an article published in the American Bar Association Journal on Oct. 8, 2013, with the title, “Can dogs be a dangerous weapon? Many judges say yes,” the author cites Los Angeles lawyer Kenneth Phillips as telling the New York Times that he sees more prosecutions in which dogs are classified as weapons. “Prosecutors are using these laws that usually apply to guns and other weapons to enhance charges,” he said. “That is going on all over the country right now. Far more than it was even two years ago.”

However, the inclusion of dogs as weapons was advanced in a Yukon Court of Appeal decision R. v. McLeod (Y.T.C.A.), [1993] Y.J. No. 170. In that case, the court was dealing with a situation where all facts were admitted, and the Court of Appeal was called upon to decide if an animate object could be considered a weapon. It had been pointed out to the court that weapons had been defined in the Criminal Code dating back to the nineteenth century when weapons were listed as inanimate objects such as guns and knives.

The definition of what is considered a weapon is expanding. The Supreme Court of Canada in R. v. Lamy, 2002 SCC 25, addressed the definition of a weapon s. 2 of the Criminal Code. It held that an object can be used as a weapon by an accused when it is “used … in causing … injury to the victim.” “Injury” differs from “bodily harm” and can be physical or emotional upset not amounting to bodily harm. This would seemingly allow dogs to be seen as weapons.

The Ontario decision in R. v. B(T), 2006 ONCJ 391, aff’d 2008 ONCA 80, agrees with the reasons for the decision in McLeod. In R. v. B(T), the accused was said to have taken a pit bull to a party, and the dog got off the leash, injuring some of the partiers. The issue was whether the accused “had appropriate control or decision-making capacity over the dog and “whether the dog was responsive to commands.”

In R. v. Regnier, 2016 SKPC 116, the accused, Anthony Robert Regnier, was apprehended and bitten by Kato, a police service dog trained to track and restrain suspects. Kato was described by his trainer as “an intermediate weapon since when he does engage someone, it will cause injury, but it’s not considered a lethal injury. When Kato was restraining Regnier, the accused issued an order to his three dogs to “sic him and bite him.” The three dogs attacked the police officer and Kato, causing injury. The police dog suffered the most serious injuries. The Provincial Court accepted the McLeod definition and assessed Regnier as using weapons. The decision also found that Regnier’s intent on attacking either the officer or his dog did not matter because of transferred intent. This proposition must be questioned in light of the Park quashing of transferred intent in establishing mens rea.

In his book Dogman, Kurt F. Suss, a dog trainer and handler for the Correctional Service of Canada who has trained dogs for various forces in Canada and the United States, points out that dogs can fall into six different categories:

• (a) socially well adapted in all environments;
  
• (b) social but submissive;
  
• (c) submissive and fearful;
  
• (d) prey-driven and aggressive;
  
• (e) aggressive and defensive; and
  
• (f) extremely high prey-driven and hunt-driven.

Using these categories, determining if a dog could be weaponized would seem to depend on the category in which the dog fits. Issuing a “sic em” command may not be enough to indicate an accused’s intent or that a dog can be a weapon. If the prosecution wishes to establish that animate objects can be classified as weapons, the onus is on the prosecution to show that the dog’s category and training will likely turn a household pet into something dangerous.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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