Let’s add two and two together. Healthy dog is outside with its owners as it runs up to another animal with a ball in its mouth. It is kicked and dies moments later. In the words of officer Trevor Daroux: "Facts are facts and nothing's going to change ...”.
http://www.calgarysun.com/news/alberta/2009/09/18/10971581-sun.html
Arguably, nothing was ever going to change. Having regard to comments made by police at the outset of this investigation -- including the Chief -- the outcome of this case was preordained.
What makes this case interesting is that it was perpetrated by a nameless off-duty police officer. Cynicism surrounding this case is not so much about the incident as it is with the investigation and non-prosecution. I believe this writer predicted this outcome long ago....
Just for a moment, let me defend the officer by saying, if another dog threatened my dog in an aggressive manner, I would certainly defend my dog. I wouldn’t measure the nicety of my blow. As I said in this Blog’s first article, “A Token Investigation? The Investigation into the Death of Harley the Dog”:
Objectively speaking, if the evidence demonstrates that the officer was defending his own dog from Harley, then he cannot be faulted for doing what he did. Surely the officer could not be expected to measure the nicety of his blow in defence of his own animal?
http://andjusticeforall-calgary.blogspot.com/2009/07/token-investigation-investigation-into.html
I maintain this position. If the officer was defending his animal, he cannot be expected to react with all the niceties naturally occurring in the ordinary course of human behavior.
But to say this case rests largely upon the necropsy is, in this writer’s view, a most troubling red herring. Though scientific verification is important to this case, it does not resolve the issue.
At the outset, consider the Crown Prosecutor’s report: ". . . the evidence does not support excessive force and rather that the accused was protecting his dog and or property."
When analyzing this case, it is important for the reader to consider the legislative provisions. Section 445 of the Criminal Code of Canada stipulates: “Everyone who willfully and without lawful excuse (a) kills, maims, wounds, poisons or injures dogs, birds or animals that are not cattle and are kept for a lawful purpose….is guilty of an offence punishable on summary conviction”.
Though the necropsy is certainly a valuable piece of evidence to this case, it is not necessarily determinative. That pathologists were unable to medically determine the precise cause of death is certainly germane to the investigation. But it is not conclusive. In fact, had the necropsy reviewed significant trauma, it would have arguably made absolutely no difference to the officer’s defence. A person who defends him or herself with a single blow to another creature can hardly be said to be acting excessively, UNLESS HE OR SHE OUGHT NOT TO HAVE ADMINISTERED THAT BLOW IN THE FIRST PLACE.
In the initial reports, Harley’s owner, Doug Shields had important information. According to him, he only looked away for a split second as he was walking off the curb to fetch Harley, before he heard his dog yelp. His dog died soon after. According to the news, he did not see or hear anything consistent with aggressive animal behavior. According to witness Tom Short, there was no attack. The ball Harley had in his mouth was just inches away from where he died.
http://communities.canada.com/vancouversun/blogs/soundoff/archive/2009/07/08/434439.aspx
According to veterinarians the officer’s dog was not injured. Not a single tooth mark.
So, lets add-up what the medical science in this case cannot seem to reconcile: A healthy dog, doing what dogs do, approaches another dog. It is kicked and it dies moments later. Regardless of the level of trauma, common sense mathematics suggests that the dog died as a result of being kicked. Notwithstanding the necropsy, death by blunt force trauma is the only reasonable inference available.
Let’s add up a common sense interpretation of this incident. In the split second when Harley is apparently out of sight, nobody other than the officer sees or hears anything consistent with an animal attack. The officer, who fled the scene and later claimed his dog was attacked (a claim many police and crown would characterize as "convenient" had it been an ordinary citizen), was not corroborated by injuries to his own animal.
If the hypocrisy has not become abundantly clear, let us crystallize it now. The Calgary Court Centre is inundated with cases where police charge and crowns prosecute everyday citizens who claim self defence. They do so because other witnesses claim otherwise. As stated by many-a-crown: "let the judge decide".
Now, I am not saying the officer does not have a valid self defence (or defence of others) type claim. I am saying, however, that it appears he avoided prosecution in a case where it is highly unlikely any ordinary citizen would have. By way of final comment, suspects who leave the scene – who in the words of many-a-crown prosecutor, demonstrate post offence conduct consistent with flight – are almost always treated with more skepticism than those who remain.
This leaves yet another wicked, questionable question: Do police get treated differently when they allegedly do wrong? Was this a token investigation? In the words of former defence lawyer, Anthony Mannagh, "it's only a conspiracy if it's not true".
Citizens should remember, they can commence prosecutions privately! If the facts are as Mr. Shield's, Mr. Short and others say, then maybe a private prosecution is the only way there will be any justice for all....
David G. Chow
Calgary Criminal Lawyer
www.calgary-law.ca
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