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Dog fight back in court

David Smith has taken his dog fight with the regional district back to the courtroom after negotiations over his pooch's release collapsed last week.

The Peachland man hired a Vancouver lawyer to appeal a provincial court decision that confirms Diesel as a dangerous dog. The ruling permits the district's dog-control service to destroy Diesel, a seven-year-old Labrador cross that has spent nearly two years in the pound.

Lawyers will argue for two days before B.C. Supreme Court Justice Geoff Barrow decides whether to overturn the lower-court ruling. Smith said he refused to accept the district's settlement offer because it requires him to adopt out the dog to an anonymous owner outside the Central Okanagan.

"They've tried to kill Diesel for 22 months. If no one knows where he is, they could kill him. It has happened before," Smith said outside the courtroom.

Neighbours on and near Wiig Road in Peachland have complained about Diesel since 2006. They say the dog chases cats up trees, runs up to other dogs and jumps on people.

One owner claimed Diesel jumped on her dog and caused lacerations that needed a vet's care. Another said Diesel made her dog limp after jumping on its back.

A woman testified that Diesel attacked a dog recovering from surgery due to a stomach ailment and injured it in early 2011. She said it was unprovoked, but Smith argues the other dog attacked first.

A woman claimed she was having tea with Smith at his house when Diesel "got into her space" and bit her hand. It wasn't clear if the dog bit her hand or scratched it as she pushed it away, said lawyer Rebeka Breder.

Dog-control staff have ticketed Smith five times for Diesel's behaviour, but he has successfully contested all but one of them. He lost the first because he never showed up in court, Breder said.

After a four-day trial in June, Judge Mayland McKimm said he lacked the authority to grant Diesel a conditional release. The district proposed last month that Smith could have Diesel back if he paid its legal fees, apologized and agreed to have the dog adopted out to a stranger.

Smith refused and carried through his appeal under the province's Small Claims Act. He argues that designating his pet a dangerous dog doesn't mean it must be euthanized. In a couple of cases, he said, dogs that have killed other dogs were allowed to live.

"Diesel has never killed another dog," Smith said.

The case has attracted two or three protesters. Connie Mahoney waved a pink sign as traffic drove past the Kelowna Law Courts. The message read "Don't kill Diesel because his owner is a bonehead."

Mahoney thinks both sides are responsible for the dog spending such a long time on death row.

"Dog control has a terrible reputation, but it's getting better," she said. "It's the least I can do for the dog. Animals don't have any rights. They are a possession."

Breder argued the district's offer to give Diesel back to Smith on certain conditions shows that bylaw authorities don't believe the dog is dangerous enough or Smith is irresponsible enough to warrant Diesel's destruction.

The district's lawyer, Troy D'Souza, said the settlement offer is inadmissible as new evidence.

"The crux of the case is whether Diesel is a dangerous dog and whether the courts have jurisdiction to make orders. They can. That's what the appeal is about," said D'Souza.

Originally published in the Kelowna The Daily Courier

January 22 2013

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