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CED: An Overview Of The Law — Police and Tracking Dogs

Police and Tracking Dogs

Prepared by Prepared by Brenda-Jean Currie B.A., LL.B.

Animals — X — Dogs — 4 — Police and Tracking Dogs

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X.4 — Police and Tracking Dogs

§350 Dog track evidence is now accepted as admissible circumstantial evidence in criminal proceedings if the proper foundation for it is established; thereafter the only question is the weight to be afforded to it. However, it should be put before the jury with the utmost care and the fullest sort of explanation by the presiding judge. Although there is no rule regarding the necessity for or desirability of corroboration, the trial judge should consider warning the jury of the danger of convicting based only on evidence of tracking by a dog.

§351 In order for evidence of the conduct of a tracking dog to be admissible, the qualifications of the dog and its trainer must be established. In short, it is the dog's propensities and skills that make the evidence of what the dog did admissible, just as it is a witness's qualifications and training that establishes him or her as an expert and makes his or her opinion admissible.

§352 The court may take judicial notice that some dogs have the ability to track people, but it would be improper to take judicial notice of the skills and propensities of particular breeds.

§353 The dog handler should be qualified as an expert in how the dog responds to human scent and how it communicates its findings, so that the prosecution establishes the basis for interpreting the dog's reactions. The prosecutor should put to the dog handler questions covering his or her training, length of service in the dog section, experience and the number of times he or she has testified in court and the level of court at which he or she testified. In addition, the handler should be asked about the training of the dog which was used, its ongoing training, the number of investigations, its record of accuracy and the breed of the dog.

§354 The Crown should lead evidence through the dog handler about the propensity of the named dog to track scent over various types of terrain, climatic conditions, and what are the dog's distractions. As well, the handler should testify about the signs or signals which the dog usually gives at stages of tracking, his or her relationship with the particular dog, the length of time they have worked together, whether he or she initially trained the dog, and possibly the particular dog's propensity to track in comparison to other dogs that handler has used.

§355 A foundation for relying on dog track evidence requires evidence of factors affecting the strength of the scent, including terrain, whether the scent was picked up in an urban or a rural area, whether the scent was followed on a well-travelled route, and climatic conditions.

§356 The dog handler should describe the track, including the distance covered, the length of time, the speed at which the dog moved, terrain, climate, and distractions.

§357 Factors corroborating the dog track may be crucial to support the proposition that the dog was on the correct track. They include any articles found along the way which obviously came from the crime scene or belong to the accused, footprints and any evidence relating to the crime in question.

§358 In order to upset the inference of guilt arising from a police dog tracking the accused from the crime scene, the accused must establish an evidentiary base for another rational conclusion. That conclusion cannot be founded on possibilities, such as a relatively remote possibility of a different scent distracting the dog. However, evidence of a previous occasion on which the dog, while tracking more than one human scent, chose one scent over another without a logical explanation may lead the court to place limits on the opinion evidence that the dog handler may give.

§359 A municipality is not liable for a police dog biting a suspect if the force used is not excessive in the circumstances and there is no negligence in the manner in which the dog was trained and handled.

§360 A police officer is not negligent in using a police dog to take down a suspect if the level of force used is justified.

§361 In British Columbia, an animal control officer may seize a dog if the officer believes on reasonable grounds that the animal is a dangerous dog, but before doing so, the officer must consider whether the dog was acting while in the course of attempting to prevent a person from committing an unlawful act, or performing law enforcement work.

§362 In Manitoba and Saskatchewan, no person shall touch, feed, impede or interfere with a service animal, without lawful excuse or authority. A "service animal" includes an animal trained to be used by a peace officer in the execution of his or her duties, or trained to be used by a person who is authorized by a peace officer to assist peace officers in their duties. Further, no person who owns an animal or has possession or control of an animal shall allow that animal to touch, impede or interfere with a service animal, without lawful excuse or authority.

§363 In Manitoba, a person who contravenes the Service Animals Protection Act is guilty of an offence and liable on summary conviction: for a first offence, to a fine of not more than $5,000; and for a second or subsequent offence, to a fine of not more than $10,000. In addition, the justice who convicts the person may order that the person pay compensation to the owner of the service animal, or any other person, for loss or damage suffered by the owner or other person as a consequence of the commission of the offence, in an amount that the court may determine. A prosecution may not be commenced later than one year after the day the alleged offence was committed.

§364 In Saskatchewan, a person who contravenes the service animal provisions of the Animal Protection Act, 2018 is guilty of an offence and liable on summary conviction to a fine of not more than $25,000, to imprisonment for not more than two years or to both. In addition to any penalty imposed, the court may order the convicted person to pay compensation to the person responsible for the service animal for loss or damage suffered as a consequence of the commission of the offence, in an amount that the court may determine. No prosecution for a contravention is to be commenced more than one year from the date on which the offence is alleged to have been committed.

§365 Pursuant to the Criminal Code, every one commits an offence who, wilfully and without lawful excuse, kills, maims, wounds, poisons or injures a law enforcement animal while it is aiding a law enforcement officer in carrying out that officer's duties, a military animal while it is aiding a member of the Canadian Forces in carrying out that member's duties, or a service animal. Every one who commits such an offence is guilty of: an indictable offence and liable to imprisonment for a term of not more than five years and, if a law enforcement animal is killed in the commission of the offence, to a minimum punishment of imprisonment for a term of six months; or an offence punishable on summary conviction and liable to a fine of not more than $10,000 or to imprisonment for a term of not more than 18 months or to both.
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