This legal overview analyzes the Canadian legal approach to dog-related injuries. It discusses the common law approach under negligence and scienter. It then examines the statutory response to dog-related injuries in Canada's provinces and territories.
Dogs and people have lived together for up to100, 000 years, in mutually beneficial relationships where dogs were bred for tameness. Nonetheless, each year 4.5 million dogs in the United States (500,000 /year in Canada) cause bites or other injuries; a few bites each year are fatal. While bites are dropping in frequency, children are still the main victims. US-Canadian differences exist in dog-bite patterns, which may reflect cultural differences in how dogs are used, especially in the north. Canada’s two main approaches to controlling dangerous dogs are: the old (judge-made) common law and (government-enacted) statutes. Both use the threat of victim compensation, meaning money paid by the dog’s owner to cover the victim’s medical costs, pain and suffering and possibly lost earnings, to encourage responsible dog ownership. In severe cases, criminal charges (the threat of prison) may be imposed too.
For dog bites, the main common law remedies are ‘negligence’ and ‘scienter’. Negligence means that an owner did not reasonably consider those who might be at risk of injury from the dog, by taking proper precautions to prevent harm. In some negligence cases, if a victim is partly to blame --being careless about his or her own safety, or provoking a dog-- courts have found the victim ‘contributorily’ liable for the cost of his own injuries. The other approach, scienter, involves ‘strict liability’ where “one keeps a dangerous thing at one’s peril.” This means that if you decide to keep a dangerous thing, such as dynamite in your home, you are in ‘peril’ because the law will hold you responsible if the thing hurts someone, even if you also did things to try to make the dangerous thing safer, such as putting the dynamite in a locked box. So in scienter cases, the dog’s owner must compensate the victim for any harm done. He cannot use the defence that he was careful and made reasonable efforts to prevent harm. However, victims have to show that: a) the dog acted viciously in the past and b) the owner knew this. Both may be difficult to prove. Many biting dogs have never bitten before, and what counts as proof of ‘owner knowledge’ is unclear if the dog was gentle around its owners. Scienter therefore makes it hard for victims to get compensation, even if badly injured. A victim’s provocation of a dog can be a defence in scienter, but what counts is unclear. If a victim abused the dog (e.g., throwing stones at it) this is clearly provocation. It is less clear if an action will be considered provocation if a victim had friendly intentions that a dog misinterpreted, such as a stranger startling a sleeping dog by petting it, or approaching its home to deliver mail. Cases often take the human, not the dog’s, view of provocation. Animal experts can correct this, but they add cost and delay.
Most Canadian provinces have now replaced scienter with statutes that make victim compensation easier to obtain. All three northern territories and nine of Canada’s ten provinces have a statute, statutory sections or regulations on dog-related injuries. (British Columbia’s Act was struck down in the past and has not been replaced). Penalties are triggered by harm to human beings or domestic animals such as livestock. All Acts allow a dog to be destroyed. Many also impose fines of varying size, or imprisonment, as well as requiring victim compensation. While the Acts aim to correct scienter’s past injustice to victims, they may go too far, causing unfairness to responsible owners and non-dangerous dogs. Only two Acts (Prince Edward Island’s and Ontario’s) factor in the dog’s perspective on the circumstances of the bite. While Saskatchewan considers provocation a defence, it is limited to deliberate acts intended to provoke the dog, meaning that accidental acts (e.g., falling on a dog) or acts where the intent was friendly but foolish (e.g., petting an unfamiliar, growling dog) would not be ‘provocation’.
Of the eleven Acts, nine remove the need to prove the owner had previous knowledge (scienter) of a dog’s dangerousness; three of these also remove the need for victims to prove owner negligence, making an owner’s disproof of fault irrelevant. Thus in these three Acts, Manitoba, Ontario and Newfoundland/ Labrador, an owner cannot escape penalties even by taking all reasonable safety precautions. Obviously if the dog bit someone, the owner’s precautions were not good enough, but there may have been unforeseeable, freak circumstances, such as a natural disaster or a child climbing over a fence, but this possibility seems to be seen as irrelevant, since the owner will still be punished. The option of prison terms suggests that these Acts are meant to be a strict liability approach, as they are sometimes described. However some say that if an owner cannot escape penalties regardless of how responsible and careful he was, the approach is really ‘absolute liability.’ Usually, absolute liability means an activity is harmful to society, and is to be discouraged. This seems untrue of dog ownership, which offers society many benefits at relatively low costs.
Overall, Canada’s current statutes are imperfect. All focus heavily on the dog’s conduct rather than on the o wner’s conduct, which seems misguided. Owner conduct is easier to correct through law, education or other means, which is likely to better promote owner accountability for dogs in the future. Focussing on the dog’s actions may mean it is destroyed as ‘dangerous’ while the owner can still get a new dog and act similarly in future. Future reforms should adopt this negligence-based approach in order to protect both public safety and preserve the time-honoured bond between dogs and people.