AAS comments in blue

RECOMMENDATION:

That the recommendations and plan of action outlined in Appendix I entitled “Tethered Dogs in our Community” be adopted.

BACKGROUND:

The Oxford dictionary defines tethering as the method by which an animal is tied to confine it to a spot. The tethering of an animal is usually, but not always, accompanied by a lack of human contact and socialization of the animal. Other animal welfare concerns such as a lack of food, water and shelter may also be present. Distress (psychological and emotional) and aggressiveness may be some of the results of tethering a dog.

The continuous tethering of animals, particularly dogs, is increasingly evoking strong views within the community on whether or not the practice is inhumane from an animal welfare perspective. Over the course of a number of years, the BC SPCA developed policy and operational bulletins on the subject. These policies and bulletins, which guided the actions of Special Provincial Constables throughout the province, for the most part strongly discouraged the practice of tethering.

We disagree. Our evidence shows that seldom were any guidelines used, often the person tethering the dog was told to by the SPCA ignore their neighbours who were troublemakers, and we proved that the SPCA did not even apply the Humane Treatment of Dogs bylaws that AAS had caused to be adopted in many municipalities the SPCA was taking money from to enforce the bylaw.

With the recent adoption of the Animal Care Guidelines for Dogs, the BC SPCA has taken the position that the tethering of a dog on a permanent basis is an unacceptable method of restraining that animal. The adoption of the Guidelines has led many members of the public to the erroneous belief that the Society will be seizing every single dog that may be tethered. Such a position is not necessarily supported by current legislation since an animal must be determined to be in “distress” before a Special Provincial Constable is empowered to take action under the Prevention of Cruelty to Animals (PCA) Act. The resulting lack of perceived action has led to a level of frustration in the minds of the public that the Society is not doing enough to protect animals.

The SPCA is still telling people who have dogs chained with barely any shelter, living in feces and urine, that there is no law being broken. Yet it has seized many animals in much better living conditions and health, in grandstanding seizures for the media that attract millions in donations a year. It then goes on to financially, legally, and emotionally ruin these people who treated their animals better than the SPCA does, and better than do the dog-chainers that the SPCA says it can nothing about.

Through the adoption of a strategic plan and the restructuring of the organization, the Society has committed itself to more proactively enforce the provisions of the PCA Act. The question of tethering is one such area where the Society can and has already committed itself to playing a more proactive enforcement role. Such an approach will allow the Society to achieve the goals set out in the strategic plan without incurring large additional financial resources. Any plan that requires a stronger approach than that suggested in the report will require the addition of significant additional staffing resources as well as an increase in the ability to house additional animals.

This attached report will therefore attempt to highlight some of the issues surrounding the continuous tethering of dogs, but will also examine the larger problem of the so-called “back-yard dog”, i.e. the situation where a dog is housed in less than desirable surroundings and is deprived of adequate human and/or other canine contact.

The report does not, however, deal in any detail with the question of aggressive dogs. Although aggression may be one of the results of tethering, it is important to note that there is no provision for dealing with aggression in either the Prevention of Cruelty to Animals (PCA) Act or in the animal cruelty sections of the Criminal Code. The Society may, from time to time, deal with aggressive dogs, but does so in the capacity as an agent for animal control.

The report will also demonstrate that through the creation of a cruelty investigations department with senior animal protection officers, increased training and accountability, it is foreseen that the numbers of investigations relating to the tethered dog question will increase fairly substantially. In addition, it is expected that as a result of the above, the number of occasions where the Society will intervene to remove an animal suffering psychological and emotional distress will rise accordingly. Moreover, through increased vigilance, the department will place cases before Crown Counsel that deal with distress caused by the tethering of an animal, thereby broadening the traditional definition of distress.

The SPCA pretended in its Spring 2004 edition of Animal Sense magazine that it had done this, in the case of "Bonnie". (See details in sub-post). AAS is still told almost daily of tethered dogs reported to the SPCA and ignored.

POLICY CONSIDERATIONS:

The Society has over the course of the last number of years adopted policy positions and operational bulletin on the tethering of dogs. These policies and bulletins have guided Special Provincial Constables in the handling of these types of complaints. With the recent adoption of the Animal Care Guidelines for Dogs, it is apparent that some inconsistencies have arisen between the policy position and the Guidelines that may require amendment. It is therefore recommended that the Animal Care Committee consider harmonisation of all policies and protocols relating to the tethering of dogs.

BUDGET CONSIDERATIONS:

The adoption of a more proactive enforcement approach to the question of tethering as outlined in the recommendations can be achieved without the need for additional financial resources. Any enforcement over and above this will require the addition of substantial staffing resources to cover increased investigations as well as rehabilitation.

It is anticipated that the proposed plan of action for Humane Education and Community Relations activities could be incorporated within existing budgets for these areas.

AAS: What educational material was ever produced? In the Summer of 2001, when AAS's Chained Dog Report, "IT'S TIME!" caused the City to question what value the SPCA was and if it was really doing any cruelty prevention at all, the SPCA assured the City that it would produce educational material. None ever was that we ever saw. In fact, when asked for educational material, one SPCA employee suggested the asker go to the AAS web site. We urged the City to produce material in Chinese, Korean, and Hindi, as well as English and to ask the leaders of immigrant communities to take a leadership role in education. No one but AAS did, and we were dismissed as racist when we tried. Nevertheless, AAS ran ads in immigrant newspapers and spoke on Chinese radio three times, each time asking for Chinese animal lovers to contact us, but none ever did. This is a serious lapse on the part of the City and The SPCA as the great majority of dog neglect and abuse (as much as 90% in Vancouver) is from recent immigrants to Vancouver.

SUMMARY:

New animal science research reveals that dogs have strong emotional and psychological needs that require regular socialization and interaction.

AAS: New? To the SPCA certainly, but not new to anyone for the span of written history who cares to understand the nature of dogs.

This has led to increased concern on the part of the BC SPCA and other individuals and groups on the impact of tethering on dogs. At its meeting on January 11, 2003 the BC SPCA Board of Director requested staff to prepare a report on tethered dogs, with particular focus on current SPCA policy related to the issue, animal welfare implications, provincial and federal legislation, impact on cruelty investigations, humane education, and communication. A verbal preliminary report was given at the February 15th meeting of the Board and a final report with recommendations is attached for the Board’s consideration.

Appendix I

TETHERED DOGS IN OUR COMMUNITY

I. Dog Tethering- The Five Freedoms Test?

(Submission by Animal Welfare Research Manager)

Introduction:

The BC SPCA Charter and Animal Care Guidelines (attached to this report) adopted by the Board in 2002 address the standard of care expected for dogs based on the Five Freedoms. Tethering (as per Animal Care Guidelines) is deemed acceptable only as a temporary measure whilst adequate housing is being constructed or whilst resting near the guardian in a public setting.

Tethering of dogs interferes with normal socialization and habituation to household activities, and with the guardian’s ability to address problems before they pose a serious risk.

Dogs are social animals that require daily positive interactions with their pack (the family) to be psychologically healthy and to learn or continue to express appropriate reactions to “normal” events, such as children playing, doorbell ringing, etc.

Daily interactions and the opportunity to watch the dog behave with family members is an important method for guardians to identify the onset of behaviour problems such as aggression.

The Society utilises the Five Freedoms Test to evaluate the state of welfare of the shelter animals.

The Five Freedoms:

Freedom from thirst, hunger and malnutrition.

Dogs have few behavioural options when tethered. Reduced behavioural options and lack of control over the environment are factors that contribute to stress. Stress related behaviours may include on-going digging, marking, jumping, circling, over-drinking, or the opposite. They may also include the inhibition of behaviours such as lack of interest in food and water, which interferes with freedom from thirst, hunger and malnutrition. These behaviours may result in the bowl being knocked over or contaminated with urine and/or dirt or being of insufficient quantity or not accessed by the dog.

Freedom from pain, injury and disease.

Tethered dogs engage in several behaviours that may lead to serious injury. Running to the end of the chain if stimulated by passers-by can damage the trachea. Standing on hind legs while the tether exerts pressure on the neck may lead to spine injury, particularly during the growth period. The neck of chained dogs can become raw from friction. Entanglement is a serious risk as is strangulation from jumping a fence while tethered. Although no statistics are available from veterinary associations regarding risk of injury to tethered dogs, it is logical to believe that they occur based on environmental conditions. In addition, tethered dogs are more at risk for parasites and insect stings.

Freedom from discomfort.

Tethered dogs are exposed to all weather conditions. Even when shelter is available, wet dogs may take several hours to dry or may not use the shelter if they are depressed or over-stimulated by passers-by. Dogs with long coats may get matted when wet, which will also cause discomfort.

Freedom from distress.

Distress in this context refers to the emotional state of an animal. Emotions such as frustration, depression, fear and anxiety are a risk for tethered dogs. Frustration results from lack of control over the environment and restricted opportunity to engage in normal behaviour. In addition, tethered dogs may experience a high level of arousal because they have visual access to passers-by and members of the household but cannot interact. Depression (learned helplessness) is a risk associated with on-going frustration and the dog expressing care-soliciting behaviours such as barking and whining that are never responded to. If care soliciting behaviours are ignored when hungry, cold, frustrated or in need of social contact, the dog gives up and becomes lethargic, and inhibits self-maintenance behaviours such as eating, seeking shelter and self-grooming.

Freedom to express behaviours that promote well-being.

Freedom 5 is the recognition that quality of life for animals means they have the opportunity to engage in behaviours that go beyond protecting them from psychosis. This freedom requires that dogs be in an environment that allows them to play, to express affiliative behaviours (love and friendship) towards their human companions and other dogs, to engage in high-energy activities, to experience tactile and olfactory pleasure, to forage and explore or to choose to have a nap in the sunshine. When tethered, dogs are deprived of this freedom. Even when the intention of the guardian is to continue providing human contact and play, the behaviour problems that inevitably result from being tethered make play and/or affiliative behaviour difficult. Dogs are either depressed, aggressive and/or become too boisterous to engage in normal social activities.

AAS: The SPCA's own facilities do not meet the Five Freedoms Standards.

Public Safety Issue:

Many serious dog attacks take place on the guardian’s property by tethered dogs. Fearful dogs may bite children or other people on the property because flight is not an option. Protective dogs may attempt to bite when approached because chasing away is not an option. Dogs that are poorly supervised can quickly become dangerous. They can release themselves from their tether, by chewing through it, or because the tether was not secure, and can run into traffic, causing vehicle accidents and engaging in predatory behaviour.

Status of Dogs in Society:

The status of dogs in society is negatively affected by “nuisance” behaviour such as barking and intimidation of passers-by. Pure breed dogs becoming aggressive as a result of tethering may result in public pressure for banning of the breed rather than tethering.

Conclusion:

There seems to be little positive outcome resulting from the tethering of dogs, for the dog himself or for society. One has to question the motivation of guardians who cannot cope with their dog’s behaviour and decide that tethering is a good alternative to seeking professional help, or those who feel that dogs are not worthy of sharing their home. The focus of the BC SPCA is to create animal friendly communities where guardians take responsibility for the welfare of their animals. Tethering contributes in no way to the welfare of dogs.

Opponents of the BC SPCA have used the tethered dogs issue to “ demonstrate” to the public that we are not doing “real’ welfare. Supporters of the BC SPCA also state that more should be done. Our BC SPCA Charter guides our standards and it is time to present a position paper that clearly lays out our opposition to the practice of tethering for dogs. The current social climate calls for an end to the “desocialisation” of dogs.

Below is the position paper on tethering dogs presented by the Humane Society of the United States.

The Facts About Chaining or Tethering Dogs:

1. What is meant by "chaining" or "tethering" dogs?

These terms refer to the practice of fastening a dog to a stationary object or stake, usually in the owner's backyard, as a means of keeping the animal under control. These terms do not refer to the periods when an animal is walked on a leash.

2. Is there a problem with continuous chaining or tethering?

Yes, the practice is both inhumane and a threat to the safety of the confined dog, other animals, and humans.

3. Why is tethering dogs inhumane?

Dogs are naturally social beings who thrive on interaction with human beings and other animals. A dog kept chained in one spot for hours, days, months, or even years suffers immense psychological damage. An otherwise friendly and docile dog, when kept continuously chained, becomes neurotic, unhappy, anxious, and often aggressive.

In many cases, the necks of chained dogs become raw and covered with sores, the result of improperly fitted collars and the dogs' constant yanking and straining to escape confinement. Dogs have even been found with collars embedded in their necks, the result of years of neglect at the end of a chain. In one case, a veterinarian had to euthanise a dog whose collar, an electrical cord, was so embedded in the animal's neck that it was difficult to see the plug.

4. Who says tethering dogs is inhumane?

In addition to The Humane Society of the United States and numerous animal experts, the U. S. Department of Agriculture (USDA) issued a statement in the July 2, 1996, Federal Register against tethering:

"Our experience in enforcing the Animal Welfare Act has led us to conclude that continuous confinement of dogs by a tether is inhumane. A tether significantly restricts a dog's movement. A tether can also become tangled around or hooked on the dog's shelter structure or other objects, further restricting the dog's movement and potentially causing injury."

5. How does tethering or chaining dogs pose a danger to humans?

Dogs tethered for long periods can become highly aggressive. Dogs feel naturally protective of their territory; when confronted with a perceived threat, they respond according to their fight-or-flight instinct. A chained dog, unable to take flight, often feels forced to fight, attacking any unfamiliar animal or person who unwittingly wanders into his or her territory.

Numerous attacks on people by tethered dogs have been documented. For example, a study published in the September 15, 2000, issue of the Journal of the American Veterinary Medical Association reported that 17% of dogs involved in fatal attacks on humans between 1979 and 1998 were restrained on their owners' property at the time of the attack. Tragically, the victims of such attacks are often children who are unaware of the chained dog's presence until it is too late. Furthermore, a tethered dog who finally does get loose from his chains may remain aggressive, and is likely to chase and attack unsuspecting passers-by and pets.

6. Why is tethering dangerous to dogs?

In addition to the psychological damage wrought by continuous chaining, dogs forced to live on a chain make easy targets for other animals, humans, and biting insects. A chained animal may suffer harassment and teasing from insensitive humans, stinging bites from insects, and, in the worst cases, attacks by other animals. Chained dogs are also easy targets for thieves looking to steal animals for sale to research institutions or to be used as training fodder for organized animal fights. Finally, dogs' tethers can become entangled with other objects, which can choke or strangle the dogs to death.

7. Are these dogs dangerous to other animals?

In some instances, yes. Any other animal that comes into their area of confinement is in jeopardy. Cats, rabbits, smaller dogs, and others may enter the area when the tethered dog is asleep and then be fiercely attacked when the dog awakens.

8. Are tethered dogs otherwise treated well?

Rarely does a chained or tethered dog receive sufficient care. Tethered dogs suffer from sporadic feedings, overturned water bowls, inadequate veterinary care, and extreme temperatures. During snow storms, these dogs often have no access to shelter. During periods of extreme heat, they may not receive adequate water or protection from the sun. What's more, because their often neurotic behaviour makes them difficult to approach, chained dogs are rarely given even minimal affection. Tethered dogs may become "part of the scenery" and can be easily ignored by their owners.

9. Are the areas in which tethered dogs are confined usually comfortable?

No, because the dogs have to eat, sleep, urinate, and defecate in a single confined area. Owners who chain their dogs are also less likely to clean the area. Although there may have once been grass in an area of confinement, it is usually so beaten down by the dog's pacing that the ground consists of nothing but dirt or mud.

10. But how else can people confine dogs?

The HSUS recommends that all dogs be kept indoors at night, taken on regular walks, and otherwise provided with adequate attention, food, water, and veterinary care. If an animal must be housed outside at certain times, he should be placed in a suitable pen with adequate square footage and shelter from the elements.

11. Should chaining or tethering ever be allowed?

To become well-adjusted companion animals, dogs should interact regularly with people and other animals, and should receive regular exercise. It is an owner's responsibility to properly restrain her dog, just as it is the owner's responsibility to provide adequate attention and socialization. Placing an animal on a restraint to get fresh air can be acceptable if it is done for a short period. However, keeping an animal tethered for long periods is never acceptable.

12. If a dog is chained or tethered for a period of time, can it be done humanely?

Animals who must be kept on a tether should be secured in such a way that the tether cannot become entangled with other objects. Collars used to attach an animal should be comfortable and properly fitted; choke chains should never be used. Restraints should allow the animal to move about and lie down comfortably. Animals should never be tethered during natural disasters such as floods, fires, tornadoes, hurricanes, or blizzards.

13. What about attaching a dog's leash to a "pulley run"?

Attaching a dog's leash to a long line—such as a clothesline or a manufactured device known as a pulley run—and letting the animal have a larger area in which to explore is preferable to tethering the dog to a stationary object. However, many of the same problems associated with tethering still apply, including attacks on or by other animals, lack of socialization, and safety.

14. What can be done to correct the problem of tethering dogs?

At least 25 communities have passed laws that regulate the practice of tethering animals. Maumelle, Arkansas; Tucson, Arizona; and New Hanover, North Carolina, are a few communities that prohibit the chaining or tethering of dogs as a means of continuous confinement. Many other communities allow tethering only under certain conditions; Jefferson County, Kentucky, for example, prohibits dogs from being tethered for more than eight hours in any 24-hour period.

15. Why should a community outlaw the continuous chaining or tethering of dogs?

Animal control and humane agencies receive countless calls every day from citizens concerned about animals in these cruel situations. Animal control officers, paid at taxpayer expense, spend many hours trying to educate pet owners about the dangers and cruelty involved in this practice.

A chained animal is caught in a vicious cycle; frustrated by long periods of boredom and social isolation, he becomes a neurotic shell of his former self—further deterring human interaction and kindness. In the end, the helpless dog can only suffer the frustration of watching the world go by in isolation—a cruel fate for what is by nature a highly social animal. Any city, county, or state that bans this practice is a safer, more humane community.

What to Do About a Dog Who's Left Outside

The HSUS strongly recommends that all pets be kept indoors with the family. We do not discourage pet owners from letting their dogs spend time outside, as long as the animals are supervised and under control at all times. But leaving a dog outside for long periods, especially if he or she is chained or otherwise tethered, can be physically, emotionally, and behaviourally detrimental. Dogs need companionship, care, exercise, and attention.

Tethering or otherwise leaving a dog outside for an extended period without supervision not only deprives the animal of these things, but can also lead to behaviour problems (including aggression). It may place the dog in serious physical danger: A confined or tethered dog is unable to escape the harsh effects of weather (heat, cold, storms, etc.), attack by other animals, or theft or abuse by humans. The HSUS receives countless calls and letters from pet owners and neighbours about dogs who have died from exposure or been stolen, abused, or even killed while left tied outside.

If you are concerned about a dog who is frequently tethered or otherwise left outside without proper shelter, food, or water, please contact your local humane society or animal control agency. A growing number of anti-cruelty laws and ordinances include "adequate care standards" that make it illegal to keep a dog outside without proper shelter in inclement weather or dangerous temperatures. (A few communities have even enacted ordinances prohibiting the tethering of dogs.)

Your local animal care and control organization will be familiar with the laws and ordinances that apply to your particular area and situation. Even if the dog's owner is not violating any laws, an animal control officer or cruelty investigator may be able to persuade and empower the dog owner to take steps to improve the situation. In some instances, persuading the individual to voluntarily give up the dog is the best solution for the animal.

AAS: Fine words only. SPCA staff are still saying that an overhang is shelter and that there is nothing wrong with keeping a dog in a garage as long as it has some lights and toys.

II. An historical analysis of the BC SPCA approach to the problem:

Introduction:

There is a public perception that the BC SPCA has been silent on the question of the tethering of dogs. Unlike most other provincial societies, the BC SPCA has for many years had both a policy statement and an operational bulletin on the tethering of dogs.

A policy statement on the tethering of dogs was approved. It states that the BC SPCA strongly opposes the indiscriminate chaining, or other methods of tethering dogs, without due regard to their physical and/or psychological well being. The Society insists that if dogs are to be tethered, the methods and equipment used must be humane and must not be likely to cause the animals any physical harm. The BC SPCA recognizes that dogs are tethered for a variety of reasons, such as aggression and economics. However, it is paramount that such dogs be tethered humanely and have easy access to fresh food, water and dry shelter. In addition, they should be exercised for at least two hours in every twenty-four.’

AAS: The SPCA told people who tethered a dog that tethering was okay by them as long as the tether was a certain length, as if the dog will be less neglected on a long tether! This is what inspectors said hundreds of times a year and from reports that AAS still receives, still does.

Operational bulletin #15, issued February 1991, also determined a number of minimum guidelines for the chaining of dogs by their owners. A copy of the Operational Bulletin is attached to this report. It is interesting to note that the policy does state, “tethering by itself will not be sufficient grounds to seize any animal”.

AAS: We don't believe this statement. We suspect that if it was reported to the SPCA that a cat was chained night and day in a yard, that the cat would be seized and the owners charged, because historically cats have not been chained and historically dogs have been. History does not make a thing right, but the SPCA appears to be too timid to lead the way for animals, preferring to wait until it is safe to "speak for them".

Response to complaints submitted by Animal Advocates: (AS's report "IT'S TIME!', prepared for the City of Vancouver and copies sent to the SPCA)

During the course of 2002, the BC SPCA received two packages from the Animal Advocates Society containing a total of 37 complaints regarding dogs that were tethered and deemed to be in distress. The complaints referred to previous complaints registered with either the Vancouver City Animal Control or the BC SPCA Vancouver shelter. The complaints included photographs, histories, recommendations and a number of demands.

Two BC SPCA Special Provincial Constables investigated the complaints. Addresses were attended, owners interviewed, video and/or photographs taken and in some cases recommendations were made.

The following was established at the time by the two SPC’s:

Of the 37 complaints, only 23 had addresses which could be investigated;
Of those 23 complaints, it was established that only nine had previously been reported to the BC SPCA;
Of the 23 complaints attended, 3 no longer owned a dog, no action was required in 5 cases, recommendations were made in 14 cases, and one Offence warning noticed was issued.

Videotape footage taken at the time of the investigation was later shown to the Animal Welfare Research Manager who indicated that based solely on the video there was no indicators of emotional/psychological distress.

AAS: This is the absolutely useless Eccles Report that said and did nothing of any value. Ex-Vancouver City councillor, Sandy McCormick, told AAS that it was an insult to the City. The Animal Welfare Research manager is Nadine Gourkow, the controversial promoter an denforcer of the "test" that is used to fail dogs and was used to try to kill Cheech. CTV exposed Ms Gourkow over the tests she said that failed Cheech.

BC SPCA response to public complaints of tethered dogs:

The Society unfortunately did not keep accurate statistics from across the province with respect to its cruelty investigations. Branches have never been requested to keep statistics on the number of tethered dog cases they investigated in any particular year. The one exception to this was in the former Vancouver Regional Branch where statistics were kept on the number of “tied or exercise violations” that were noted.

Following are the statistics for the period January 1 to December 31, 2002:

Abbotsford 19 violations
Burnaby 6 violations
Coquitlam 1 violation
Delta 6 violations
Langley 2 violations
Maple Ridge 1 violation
Richmond 4 violations
Surrey 14 violations
Vancouver 5 violations

Total 58 violations noted

Until very recently, there has been some reluctance to pursue the issue of tethering more aggressively throughout the province. Reasons for this may include a lack of field resources, training and overall management of the cruelty investigations component. In addition, operational bulletins in place at the time were not as progressive in this area as the Animal Care Guidelines currently are.

III. Applicable legislation

Introduction:

The act of tethering an animal is not illegal in Canada. In fact, there exists no legislation that specifically prohibits the tethering of dogs by animal owners. On the contrary, legislation and/or by-laws do exist that permit the tethering of a dog or other animal under certain circumstances.

Increasingly we are being made aware that the practice of tethering an animal can and does cause significant psychological and emotional distress for a dog. That said, the question really then becomes, is there any legislation in Canada that makes it an offence to cause psychological or emotional distress to an animal?

Questions concerning animal cruelty and the tethering of animals can potentially arise in three different areas. They are federal and provincial legislation and in municipal by-laws. This report will briefly highlight the applicable legislation at each level of government.

Federal legislation:

The applicable federal legislation dealing with animal cruelty is found in the Criminal Code of Canada (CCC), more specifically Sections 444 to 447.

Sections 444, 445 and 447 are not relevant to our report as they relate to cattle (444), killing, injuring or poisoning animals (445) and the keeping of a cockpit (447). The only remaining section that could potentially apply would be Section 446 CCC.

Section 446(1) Everyone commits an offence who

wilfully causes or, being the owner, wilfully permits to be caused unnecessary pain, suffering or injury to an animal or bird;

being the owner or person having custody or control of an animal … abandons it in distress or wilfully neglects or fails to provide suitable food, water, shelter and care for it.

Before a Crown attorney will entertain any criminal charge, he/she must be satisfied that there is a substantial likelihood of a conviction in the case and that it is in the public interest to prosecute.

To assist the Crown in making this determination, the investigating officer must provide sufficient evidence to satisfy the Crown that all the elements of the offence are present. For the purposes of a 446 charge, the following elements, at a minimum, must be present to sustain the charge:

Ownership/custody of the animal by the accused;
Causation, i.e. the accused caused the act or permitted the act to occur;
Wilfulness, i.e. an intention on the part of the accused to cause the offence; and
Unnecessary pain, suffering, injury, abandonment in distress, or a failure to provide care etc is the result;
(The above is an oversimplification of the process)

Even if all the elements of the offence are present, the onus nevertheless still rests on the Crown to prove each element beyond a reasonable doubt. Any doubt must be decided in favour of the accused.

Usually in Criminal Code animal cruelty prosecutions, the Crown may not face too many difficulties in proving ownership of an animal by the accused as that can be established in a number of ways.

Causation is established by placing the accused with the animal over a period of time.

Veterinary evidence is lead to adduce the type and amount of suffering, etc suffered by the animal.

The difficulty the Crown faces in a Criminal Code prosecution is proving beyond a reasonable doubt that the accused intended or through sheer recklessness wilfully brought about the result. There is a significant amount of case law on the topic of wilfulness that guides the prosecution in determining whether the test for wilfulness has been met. The case law has interpreted the test for wilfulness very narrowly.

Provincial Legislation:

The burden of proof and the rules of evidence that apply to Criminal Code charges apply equally to provincial legislation that creates quasi-criminal offences.

Section 24 (1) of the Prevention of Cruelty to Animals (PCA) Act states that a “person responsible for an animal who causes or permits the animal to be or to continue to be in distress commits an offence”.

Subsection (2) of the Act states that “subsection (1) does not apply if the distress results from an activity that is carried out in accordance with reasonably accepted practices of animal management”.

The Act then goes on to state that “an animal is in distress if it is

deprived of adequate food, water, or shelter,

injured, sick, in pain or suffering, or

abused or neglected”.

AAS; This is what is open to interpretation which permits the SPCA to define what is abuse or neglect and the SPCA can decide that social/psychological deprivation is abuse or neglect, which it said it was going to do in the Summer/Fall of 2001 at the City of Vancouver meetings.

The elements required to prove the offence under Section 24 of the Act are:

Responsibility for the animal;
Causation;
Animal
Distress;

Comparing the PCA Act offence to the Criminal Code, it is immediately noticeable that under the provincial legislation there is no requirement for wilfulness at all. The Crown is only required to prove that the prohibited offence has in fact been committed. This is known as a strict liability offence, which means that the accused would be required to prove that he acted with due diligence and in accordance with generally accepted practices of animal management. So for instance, an accused who caused distress to an animal may have a defence if he can prove that he acted in accordance with a recognised Code of Practice.

The interpretation of the legislation will be discussed in the following section.

Municipal by-laws:

The Society is not aware of a by-law in existence in Canada that specifically prohibits the tethering of dogs by their owners. Most municipalities regulate only the running of dogs at large and the impounding of at-large animals. They are normally silent on the question of animal care.

A number of municipalities in the lower mainland have, however, enacted by-laws that contain animal cruelty and care provisions in them. AAS’s Humane Treatment of Dogs bylaws

Common to these by-laws is language which indicates that:

No person may cause an animal to be hitched, tied or fastened to a fixed object where a choke collar or chain forms part of the securing apparatus, or where a rope or cord is tied directly around the animal’s neck;
The opportunity for periodic exercise sufficient to maintain good health, including the opportunity to be unfettered from a fixed area and exercised regularly under appropriate control.
Examples of such by-laws are attached to this report.

IV. Interpreting the legislation

Federal:

With respect to tethering then, we need to ask where does or where could psychological or emotional distress fall within these particular sections of the Criminal Code. There is no straightforward answer to this question.

Case law has for the most part clearly defined what is meant by the terms “food”, “water”, “shelter”, “abandonment”, as well as “unnecessary pain”. The question of psychological and emotional distress would in all likelihood not fall under these areas. The only remaining areas would be under the term “suffering” or “care”. There is no clear case law that has defined what is meant by the term suffering and it could theoretically be argued that psychological and emotional distress could fit under this definition. However, it is interesting to note that the Crown in the Scarlet case (discussed later) was not prepared to extend the definition of suffering to include this type of distress, preferring to take the narrow view that pain and suffering must be manifested in some external physical manner, rather than internally.

AAS: The SPCA is responsible for the lack of case law. This groundwork should have been laid long ago. The courts cannot know what the SPCA and society considers psychological distress if the SPCA never tells it through presentation of cases.

Even if one were to accept that psychological and emotional distress could fit under the term suffering and was accepted as such by a judge, the Crown would nevertheless still bear the onus of proving that the accused intended or was so reckless that he ought to have foreseen that his actions would have caused the result.

Without the testimony of the accused, it is difficult to determine that the owner intended to cause psychological and emotional distress. We would have to prove that through the accused’s lack of action to any warnings/recommendations, that he/she foresaw that the omissions would result in the psychological and emotional distress and knowing full well, nevertheless went ahead with the action or lack of action.

Furthermore, the Crown would also bear the onus of proving beyond a reasonable doubt that the act of tethering itself was the direct cause of the suffering, which again is no easy task.

In Regina vs. Kaygee (the Scarlet case), the Crown attorney was not prepared to approve charges under either the Criminal Code of Canada or the Prevention of Cruelty to Animals Act. A copy of the Crown’s reasons for declining to prosecute is attached to this report. It is interesting to note that the Crown in this case was of the opinion that suffering should be interpreted as some sort of external physical factor. She goes on to point out that “to prove neglect or abuse we would have to be able to look to physical evidence of abuse or physical neglect – such as hair mats, malnutrition, etc.” However, she does point out that in the alternative, one would have to prove psychological manifestation of abuse or neglect. She concluded in this case that there was no psychological opinion to support the contention of psychological damage.

AAS: Would this be different if Scarlet had exhibited symptoms of depression, aggression, or self-mutilation? Scarlet was NOT a good case for the SPCA to choose to start the process of case law – another instance of CEO Brimacombe acting hastily and without thought. The seizure of Scarlet may have set back the process of building case law as it set a precedent of failure. The SPCA seized Scarlet to grandstand and to deflect AAS which was preparing to expose the Victoria SPCA for not assisting her.

Changes to the animal cruelty sections of the Criminal Code proposed under Bill C10(b) and currently in the Senate would unfortunately not make things any easier for the prosecution with respect to the test for wilfulness.

The conclusion that one could reach is that psychological and emotional distress caused by tethering may very well, in the absence of any other factors such as environment or physical health, not be sustainable under the current Criminal Code of Canada.

Provincial:

Looking then at the definition of distress found in the PCA Act, psychological and emotional distress could potentially be covered either by the terms suffering, abuse or neglect. It could be argued that the most appropriate fit would be under the section titled abuse or neglect. Just what AAS has been arguing for the last three years.

At this time, there is no case law in Canada to support or reject this particular point of view. With that in mind, the usual practice would be to interpret the legislation in a broad sense to include such terms until such time as the courts set the parameters for the offence. For a number of reasons, provincial SPCA’s across Canada have in the past been rather reluctant to interpret the definition of distress in its broadest sense, preferring for the most part to concentrate on more objective criteria like food, water and shelter.

Some reasons for this may have been the potential legal costs involved as well as unwillingness by society as a whole to move forward in the area of increased animal protection. However, it is clear that public sentiment is clearly in favour of increased legislation to better protect animals and the potential for increased penalties for convicted animal abusers. In fact, this public sentiment appears to extend to more aggressively dealing with the question of tethered dogs.

The fact that causing or permitting to cause distress is a strict liability offence means Crown Counsel need not concern themselves with whether the accused intended the result or not. They need only prove that the accused was responsible for the animal, that the animal was in distress and that it was the accused that caused the distress. Causation does not require a positive act, as an omission to act would qualify.

One could therefore conclude that there is no reason why a charge could not be sustained in circumstances where the act of tethering alone by the owner caused distress (psychological and emotional) to the animal.

In fact, in Regina vs. Ryan, a dog was seized by the BC SPCA in the execution of a search warrant on the property of the accused during 2001. The Crown in this case accepted that amongst other things there was evidence of psychological and emotional distress and agreed to include it amongst the numerous charges facing the accused. This case is still before the courts.

AAS: Did Crown include this charge in court? Did the Court find Ryan guilty of the charge? The SPCA does not say.

Municipal:

For the most part, by-laws on the tethering of dogs are very specific. They prescribe the circumstances under which an animal can be tethered. Failure to abide by these by-laws may result in a violation and the issuance of a ticket or a summons.

Enforcement of the by-law is undertaken by an officer of the municipality or by an agency such as the BC SPCA if that service is contracted out.

Based on the by-laws provided in this report, there is no inherent difficulty in charging an animal owner for failing to comply with the by-law, provided that the municipality in question is seeking full enforcement of the by-law. (In a number of jurisdictions, the municipality, whilst perhaps having such a by-law, may prefer to adopt a soft approach to the issue.

AAS: As far as we know, the SPCA has not ever charged anyone under the (AAS) municipal bylaws.

V.Recent changes to investigating the tethering complaint

As a result of the recent creation of the Cruelty Investigations department within the BC SPCA, a number of changes have been implemented or are in the process of being implemented which will affect the manner in which complaints, including tethering complaints, are investigated.

The most important change will be the introduction of the cruelty investigation notice, a draft copy of which is attached to this report. AAS: (This was promised in the Summer of 2001. Beginning April of this year, it will be an absolute requirement for the cruelty investigation notice to be completed for every single investigation that takes place across the province. The notice, which is based on the definition of distress as found in the PCA Act and the Animal Care Guidelines will require the investigating officer to determine whether the animal owner or custodian is complying with the Act and the Guidelines. If no violations are noted, the officer is required to make a note of it on the report. The notice includes specific references to the tethering of animals as well as a number of other indicators of maladaptive behaviour. The intent of the notice is to advise the owner of the deficiencies and to request compliance within a short period of time. A copy of this report will then be forwarded to the cruelty investigation department where a senior animal protection officer will peruse the notice, enter it into a database and ensure appropriate follow-up at the correct time.
The notice leads to the second change in the manner in which investigations will be undertaken. For the first time, there will be accountability in the system with senior officers ensuring that complaints are thoroughly investigated and appropriate action taken, including charging those responsible for animals for causing distress. The decision to charge will not be left solely to the investigating officer, nor will the investigating officers be in a position to close a file on their own accord. This new system will also allow for increased public accountability as (permissible) information on investigations undertaken will be placed on the website, thereby fulfilling one of the priorities identified in the strategic plan.
The department is also in the process of developing a tethering report form to assist officers in the investigation of complaints involving tethered animals. It is likely that this report will be ready for field use within a few months.
During the course of 2003 and onwards, the intent is to provide significantly increased training to SPCs on a wide range of animal care related topics, including dealing with tethered and/or aggressive dogs. Moreover, it will become an absolute requirement for all officers to undergo annual continued training if they wish to maintain their status as an SPC.
With increased monitoring and accountability will come opportunities to identify potential classic tethering cases for prosecution under the PCA Act. The intent of the department is to identify a number of cases where charges will be recommended against owners who cause psychological and emotional distress as a result of the act of tethering. It will be important to pick the correct cases that may serve as precedent to future tethering cases.
Through its strategic plan, the Society has committed itself to a more proactive approach to the prevention of cruelty to animals. This more proactive approach, which is being relayed to field officers through forums such as the SPC Information sessions, will in turn have a positive spin off in areas such as dealing with tethered or back yard dogs. If officers are advised to ensure higher standards of animal care through compliance with documents such as the Animal Care Guidelines, the result will be more proactive action in those areas (such as tethering) where it was previously assumed the Society had no jurisdiction or the existing laws were inadequate.

VI.Constraints and anticipated scope of the problem

Even with a more proactive approach to enforcement, there are a number of constraints that will make it difficult to satisfy all sectors of the public with respect to this question. Some of these constraints include:

A lack of hard data. Unfortunately the Society has at present no way of determining the exact number of dogs who may be tethered at any particular time. It is therefore impossible to gauge the extent of the problem or whether the problem is worse in urban or rural areas.
Regional variances should not be discounted. In many more rural communities, tethering is considered a more than acceptable method of constraining an animal. The Society may lose support in these areas if it adopts an approach to tethering which is not in keeping with the prevailing view within a community. AAS: Being careful not to lose "support" (donations) means that dogs can go on being chained for a long time.
Cultural considerations should be taken into account when dealing with this issue. Our officers often encounter language barriers. AAS: No attempt has been made by the SPCA to overcome this and in fact to target unacceptable cultural differences.
A more proactive approach, even if fairly small, will result in a significant increase in the numbers of complaints investigated. Staff resources in the field are already stretched and it may be difficult to achieve significant change in the short term with existing resources. The more proactive approach will require officers to spend additional time on each file before bringing it to resolution. Without increased staffing resources, it is possible that some members of the public will continue to assume that little has changed in this area. AAS: So the SPCA spent money of media and donation-attracting seizures from "villainous" puppymillers, many of whose dogs were in much better conditions than most chained dogs. A seizure of a chained dog is unlikely to attract the media.
Proof beyond a reasonable doubt. Any complaint based solely on the allegation that an animal is being tethered 24 hours a day without being regularly exercised and/or socialised will require proof that this is indeed the case. Whilst the investigator can obtain statements from neighbours along those lines, it is entirely likely that one or more officers may have to stake out the residence continuously for a number of days so that evidence can be given that the animal was never walked or exercised. Many owners allege that they walk their animals late at night and will raise this fact if charged. It will be incumbent on the Society to prove that this is not the case. The only way may be through such a stake out, which is of course extremely costly in terms of personnel hours. AAS: This is what AAS said long ago – that the SPCA will have to stake-out a neglecter.
It is entirely likely that this more proactive approach will result in the seizure of more dogs, which in turn will put further strain on our already over-crowded shelters. Increased foster care may be part of the solution.
Lack of existing case law. Although there is significant case law throughout Canada on animal cruelty, none of these cases specifically deal with the topic of tethering animals and the psychological and emotional distress that may follow from there. Judges and Crown Counsel are heavily influenced by previous decisions when making their decisions to prosecute a case or convict an accused of the offence. The fact that there is no case law on the topic of psychological and emotional distress obviously makes it more difficult for a charge to be approved by a Crown.
A lack of training in being able to recognize maladaptive behaviour may slow down swifter action in some cases. In some cases, staff has not been encouraged to interpret the Act in its broadest sense. This will need to be remedied over a period of time.
Lack of equipment. In many branches there is a complete lack of the necessary equipment required to effect the seizure of animals.
If the focus is too heavily on tethering, it is possible that other animal welfare related issues such as puppy mills; animal hoarding and the humane transportation of animals will be overlooked.
Financial resources, or the lack thereof, will be a consideration if this animal welfare issue is to be advanced. If cases are to be presented to Crown, the Society will have to engage the services of independent experts to provide expert evidence that not only is the animal suffering psychological and emotional distress, but also that the distress is caused by the tethering of the dog in question. These experts may not always be available in Canada. In addition, it is likely that the Society may need more than one veterinary or assessment opinion in each case. Moreover, it should be anticipated that the legal costs incurred may rise fairly significantly as more of these cases are put to the courts for decision, especially if the Society seeks more orders of custody.
Although unlikely, it is possible that owners may attempt to sue the Society for the seizure of their animals on what they determine to be erroneous grounds. Our liability insurance should therefore be sufficient to protect both the Society and the officer/s in question.

VII. Costs:

It is very difficult to give a truly accurate analysis of the costs of investigating, seizing, charging, housing, care and rehabilitation of one dog. Before providing a cost analysis, it is important to note the procedure that would be followed when dealing with a potential case of psychological and emotional distress as a result of tethering. The following scenario could be considered somewhat typical.

A complaint would be received at the shelter of a dog that was tethered 24 hours a day 7 days a week, 365 days of a year. An officer would initially respond to the complaint and in the best case scenario will make contact with the owner on the first visit. Many times however, it takes more than one visit to make contact with the owner.

Assuming that the complaint was justified, the officer would attend at the property, conduct an investigation, advise the owner of any deficiencies and recommend that changes be made. The officer will advise the owner that he will return within a period of time to determine whether the recommendations have been complied with. Upon returning, the officer notes whether there has been any progress, and if not, it is entirely possible that the officer will at that stage formally put the owner on notice and issue him/her with an Offence Warning Notice, giving the owner a small window of opportunity to rectify the situation.

During this period, the officer may need to interview witnesses and experts and take written statements. It would also be necessary to forward information to trained SPCA assessors to determine if indeed there is psychological and emotional distress.

If the owner then refuses to comply, the officer would prepare, apply for and execute a search warrant to search for animals in distress on the property of the owner. It is important to note that the search warrant is a requirement under the PCA Act as there may well now be an expectation that an animal may be seized. The officer would contact the RCMP to keep the peace when the warrant is executed and then enter the property to determine compliance with the warning. A veterinarian may also be contracted to determine the level of distress. If there has been no compliance, the officer would seize the animal and take it to the shelter. Following this, the officer would have to decide whether charges are warranted under the PCA Act. If so, the officer would prepare a Report to Crown Counsel (RTCC), which contains the case against the owner. At the same time, the officer is required to serve a Notice of Disposition on the owner advising that the Society will adopt or otherwise dispose of the animal 14 days after receiving the notice. Once the charge is approved, the matter would proceed to trial, which can take up to two years for the matter to be decided. The officer in question would be expected to be present for the majority of court appearances by the accused. There may also be a need to apply for an order of custody.

Based on the typical investigation outlined earlier in this report, it is possible to extract some meaningful figures that can assist in determining potential costs involved.

Investigator time:

Average time spent on initial investigation 2.5 hours

Follow up visits, minimum two 4.0 hours

Preparation of search warrant 5.0 hours

Application for search warrant 3.0 hours

Execution of search warrant/seizure 3.5 hours

Notice of disposition 1.0 hour

Collection of evidence 14 hours

Report to Crown Counsel 12 hours

Meetings with Crown Counsel 10 hours

Appearances in court 24 hours

Total investigation time per constable therefore amounts to 79 hours, which at ACO2 rates would amount to $1,896.00 per investigation.

Animal care costs in the order of $18.00 per day per dog would need to be factored in. Based on a dog spending 21 days at the shelter and then being placed in a foster home, animal care costs would amount to a minimum of $378.00

Animal assessment costs and appearances in court as experts would conservatively amount to 1,500.00

Veterinary costs for detailed examination of the animal and appearances in court would amount to a minimum of $800.00

Total costs incurred could amount to a minimum of $4,574.00

Such a scenario does not include the possible need to attend at the property on a continuous basis for two or more days. This scenario would increase investigation costs five fold and delay investigation of other complaints.
Failure to place the animal in a foster home after this time would result in a corresponding increase in costs as it may be required to retain custody of the animal for the duration of the trial, which may take 18 months to 2 years.
In addition to this, one may need to include any rehabilitation costs as well as legal costs if an order of custody is sought. Although volunteers may be able to assist with rehabilitation costs, legal costs will amount to a minimum of $5,000 to make application before the Supreme Court.

VIII. Humane Education/Communications
Initiatives in the areas of humane education and communication overlap and support one another and so they have been included as one section in this report.

While the issue of tethering has been highlighted in a number of materials produced by Humane Education and Community Relations staff in recent years, the topic has not been dealt with in isolation but rather as part of the overall messaging about responsible pet guardianship. Public service announcements, ads, and news releases have been created on this topic, and the issue of tethering is included in humane education programs prepared for children and young adults.

AAS has not seen one SPCA ad on the cruelty of chaining. See AAS ads at http://www.animaladvocates.com/aas-adverts.htm . Nor have we ever heard of SPCA education on this subject. We have heard of SPCA employees telling neglecters that they are doing nothing wrong and to ignore the complaining neighbours.

The new Board Advocacy Committee has identified the subject of tethering as a key issue of concern to the Society, but the committee is currently in the process of prioritizing its advocacy agenda and has not yet made a recommendation on the priority to be given to this issue in relation to other key advocacy needs.

We believe that programs to raise awareness about the issue of tethering should be on-going, rather than limited to a one-time campaign and should be offered on multiple levels for children, youth, and adults. Given current budget considerations, we recommend that every effort be made to use existing materials and resources within the BC SPCA to leverage our message and to partner with other organizations who can help us reach our key audiences.

The SPCA has always used the “we prefer education to prosecution” dodge to get out of expensive enforcement, but in fact it does neither.

IX. RECOMMENDATIONS
Enforcement

o That the cruelty investigation approach outlined in this report be endorsed.

Communications/Humane Education

o That the following materials on tethering be produced for distribution to media throughout the province:
Radio and print public service announcements
Print ads. News articles and editorials. Tips on your dog’s socialization needs and how to meet them
o That SPCA representatives be placed on talk shows to discuss the issue of tethering and the socialization needs of dogs.
o That a fact sheet/brochure on tethering be produced for distribution through the new SPCA Adoption kit, veterinary offices, BCVMA newsletters, pet stores, groomers, pet supply stores, SPCA community displays, and through municipal distribution systems (including dog licenses and renewals).
o That the fact sheet be translated into other languages and be distributed through organizations such as S.U.C.C.E.S.S., MOSAIC, and other community and municipal organizations throughout BC that support new immigrants to the province.
o That additional materials be posted on the BC SPCA website.
o That the issue be highlighted in AnimalSense magazine and Anim@ls e-newsletter.
o That a news release be issued in every case where the SPCA has taken action regarding a tethered dog.
o That tethering be included as a topic for SPCA Youth Summer Camps and the new school youth ambassador program.
o That tethering be included as a topic in SPCA school presentations and curriculum materials developed for teachers.
o That a poster on tethering be developing for distribution to shelters, schools, pet stores, groomers, veterinarian offices.

AAS: As far as we can tell, except for the deliberately misleading account of "Bonnie" in Animal Sense magazine, none of those suggestions have been implemented in more than a year and a half.