New offer to save 'Diesel'
Dec 21, 2012 / 11:53 am
After 21 months the Regional District of the Central Okanagan (RDCO) is making a second offer to 'save' a dog in its care.
Since March 2011 Diesel, a German Shepherd cross, had been in the RDCO pound after apparently attacking another dog. The issue was taken to court and on August 9, Provincial Judge McKimm declared Diesel a 'dangerous dog'.
Diesel was set to be euthanized, however his owner Dave Smith appealed the judge's decision.
Now the RDCO is making Smith a new offer, which they believe will provide Diesel with the highest likelihood of success.
The proposal requires Diesel to be transferred to a new owner through an anonymous adoption by a dog rescue agency approved by the RDCO. Diesel would remain outside the jurisdiction of the RDCO with an owner who can provide Diesel a safe and secure environment.
Diesel would not be returned to his owner, Smith's care as Smith was found to be an 'irresponsible' dog owner by Judge McKimm.
In paragraph 48 of the Reasons for Judgment it was stated that Smith is:
'... unreliable and profoundly irresponsible about the care and control of his animal. He has shown a wanton indifference to the serious distress his failure to control this animal has caused to his neighbours. The case is overwhelming that the dog cannot be returned to Mr. Smith.'
The RDCO believes returning a "dangerous dog" to a "profoundly irresponsible" dog owner is not a viable option and would not satisfy public safety in the community.
The proposal also requires Smith to agree to:
- Partial reimbursement of costs for veterinary services to the victims of ‘Diesel’s’ attacks and to the RDCO for costs including legal fees.
- Write an apology letter to the residents of the District of Peachland who testified or were on the witness list at the Provincial Court trial before The Honourable Judge McKimm.
Castanet contacted Smith for a response to the proposal. Smith stated he is carefully reviewing the proposal with his lawyer and believes he may make a counter offer.
This is not the first time the RDCO has tried to seek an agreement with Smith. Back in March of 2012, a consent order was attempted but refused by Smith, according to the RDCO. That lead to a Provincial Court hearing. In addition, Smith launched a BC Supreme Court civil action seeking terminations, suspensions and damages against the RDCO, certain employees of the RDCO and two citizen complainants. On October 23, 2012 the entire claim was ruled to be without merit and the RDCO was awarded court costs.
However Smith says he did not out right refuse the offer, but instead gave a counter offer that was never responded to by the RDCO.
He also told Castanet that he doesn't believe this new offer is fair and he does not agree with the judge's decision that he is a 'irresponsible' dog owner.
"In item 45 (of Judge McKimm's decision) the last item says ' it may be that a failure to inquire about reasonable alternatives short of destruction are possible may be a reason to return the dog to its owner.' They are talking about the Regional District's failure to use their own bylaws to issue Diesel a dangerous dog ticket, which I could have fought in a much easier way than going to provincial or supreme court."
In item 46 of the decision, it's stated that:
'In any event it is my view that an order other than a return to the owner poses too many questions of liability to the District or the person the District may be compelled to deliver the dog to as required by the Conditional Order. If the dog is returned to the owner at his or her request, there is no doubt that the owner would bear all responsibility in the event the dangerous animal injured someone or an animal again.'
Smith believes item 46 indicates that at one time the judge was at least considering returning Diesel to him, an offer that is no longer on the table.
Diesel wasn't the best behaved dog acknowledges Smith, but he says it is not fair his dog is being punished for being in a dog fight.
"They are considering releasing Diesel so obviously he is not too dangerous."
Smith believes instead the issue is about his character as a dog owner, to which he says it is not irresponsible and has owned several dogs in the past.
In response to the reimbursement of veterinary service costs of Diesel's victims, Smith explains he once agreed to pay them, but took his offer off the table when he believed the victim to be lying.
Smith says he will not comment on whether he agrees to paying the costs at this time or if he will be issuing an apology letter.
It's unclear how long Smith will have to respond to the RDCO's proposal, but if he declines he says he will be going to Supreme court in January.
"This could be why they (the RDCO) are trying to make a proposal now, is because it's close to the court date and my lawyer and I believe they are going to lose."
The RDCO did not return our calls for more information.
However in a release statement the RDCO Chief Administrative Officer Paul Macklem states in the case of ‘Diesel’, the RDCO has been extremely disappointed with the campaign by a number of individuals to intentionally mislead the public regarding our handling and care provided for ‘Diesel’ and of the facts contained in court documents that are publicly available.
"This has been a deliberate attempt to harm the reputation of the RDCO, our employees and our legal representative in the print media and on social media sites. While we recognize the goal is to put public pressure on the RDCO for ‘Diesel’s’ release to Smith, we are steadfast that the proposal will not be compromised given public safety concerns and the court order.”
According to the RDCO the new proposal to Smith is consistent with their vision that:
- Dogs are valued in our region
- Protection of the public is paramount
- Responsible dog ownership is foundational to the region’s new model
Check out the Provincial Court decision of the Honourable Judge McKimm; available to the public since August 9, 2012.
Check out The Supreme Court of BC decision regarding the Smith civil claim; available to the public since October 23, 2012.
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