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Kirthi Jayakumar, Attorney at Law

addresswithheld Chennai600028 TN,India

ASSERTION OF CAPACITY I, Kirthi Jayakumar, state that I am a Lawyer, enrolled on the rolls of the State Bar Council of Tamil Nadu, bearing the enrollment number MS 1766/10. I am a graduate of the School of Excellence in Law, under the Dr. Ambedkar Law University, Tamil Nadu, where I ranked first in a class of 120, graduating with a distinction and an all-time record-breaking score. I am eligible and licensed to practice before any court in India, and am eligible and licensed to tender legal advice in pertinence to any issue involving a question of fact and law. IN THE MATTER OF R. V. ROGIER FACTS IN BRIEF
1. Ms. Francesca Rogier is the owner of a German Shepherd mix called Brindi, who is a






well-trained and harmless being, with the most basic instincts that are inherent in a dog. Ms. Rogier is a citizen of the United States of America, and immigrated to Nova Scotia in 2006 with a simple dream of fixing up an old house and keeping a dog and two cats as family. She appears to have remained a responsible person in the course of her domicile at Nova Scotia. After being defrauded by a fraudulent contractor who went bankrupt and left her home high and dry, she battled for two years to save her dog, Brindi. A confluence of unkind neighbours and a legal system that was dead-set against Ms. Rogier and her dog, Brindi was reported for a harmless scuffle as is wont to happen between pets. Brindi and Ms. Rogier eagerly cooperated with the animal control manager in the proceedings, but sadly, the very same manager signed the death order in 2008 after setting her up with an unfairly imposed muzzle order. HRM has seized Brindi twice, with a claim that she must be destroyed. When HRM refused to consider that it made a terrible mistake and would not release Brindi, Ms. Rogier, who had not been charged, was forced to take her case to court. Five months later, a Supreme Court justice ruled she was denied due process and was a victim of procedural unfairness. He quashed the original order to euthanize Brindi along with the very law that was used to issue it. However, he did not address Ms. Rogiers central request for relief, namely to order that the city return her dog to her. Taking advantage of his omission, the city continued holding Brindi and immediately charged her with offences related to the incident, now over six months old. The 2009 Decision by Justice Beveridge of the Supreme Court revealed that there were infirmities, arbitrariness and unfairness in the procedural conduct of HRM.








Specific mention was made in noting the fact that due process was denied. Justice Beveridge recorded an observation, that, the statutory decision-maker did not accord to its owners even the most minimal requirements for procedural fairness. HRM first seized Brindi in July 2008. After that, on four occasions, Brindi was assessed at the behest of Ms. Rogier, by qualified persons with experience in evaluating dogs. Each instance revealed positive results in noting that Brindi is a wellbehaved animal with nothing more than the normal animalistic instincts befitting a dog she chases after cats, barks in expression of her emotions and just loves to get friendly. The most recent assessment determined yet again that Brindi is fit to live in a domestic setting. However, being that she was detained for an extended period, Brindi is in need of re-adjustment to relearn housetraining and recover abilities that any dog would normally need in such circumstances. In the subsequent trial, which lasted nearly 16 months while Brindi continued to languish in custody, a provincial court judge found Ms. Rogier guilty on three counts of violating the local by-law. However, she declined HRMs request to put Brindi down. She released Brindi, ironically under the same conditions Ms. Rogier initially offered the city, including her offer to pay fines, have her dog work with a private trainer, maintain the dog run she had built in 2008 (as part of her offer to HRM), and continue to comply with the muzzle order, even though she disagreed with it. (It should be noted here that HRM continues to lack any criteria for muzzle orders, or an appeal process by which to challenge them.) Ms. Rogier also voluntarily opted to continue training after meeting the courts required amount. During the two years of confinement, Brindi contracted chronic pancreatitis, and her teeth were neglected, leading to enamel loss. A vet found that this irreversible damage to her health will likely shorten her life. Ms. Rogier was not awarded any damages, however. Only two months after Brindi came home, HRM seized her again in the wake of a minor mishap with a dog belonging to relatives of the original complainants. The incident happened on or around her own property, late at night. HRM then charged Ms. Rogier with violations, and set a court date 13 months after the warrant was sworn. The Information to Obtain used to apply for the seizure warrant, entered into evidence, shows that the officer who seized Brindi relied on recordings of phone calls Ms. Rogier made to a sympathetic HRM dispatcher. The calls clearly establish that the dispatcher, Michelle Steen, a commissionaire employed for four years, had long felt that the initial seizure and detention was grossly unfair. Seeking to help Ms. Rogier protect her dog, and having had received no report from the other dog owners, Ms. Steen proposed that Ms. Rogier file a report against the other dog. Both women believed that the other dog was uninjured, based on statements made by the other dog owners at the scene. As it turned out, the dog sustained minor injuries, not serious enough to warrant immediate medical attention; nor did they require treatment as of the next morning.


13. A justice of the peace issued a warrant in answer to an ITO that purported to give a







history of the dog. However, this history appears to focus largely on technical matters, such as number of alleged violations or offences, rather than the nature and extent of harm done, if any. On the strength of the content of the aforementioned phone calls, and absent a full factual accont of the incident in question, the ITO then proposed to seize the dog in a pre-emptive move to prevent Ms. Rogier from removing her lawfully owned property from the municipalitys jurisdiction. Immediately after HRM seized Brindi a second time, and on the very day she sought a court injunction to release Brindi an application that the justice declined to hear, claiming lack of jurisdiction she returned home to find an order from an HRM building inspector requiring her to vacate the heritage home within 3 weeks. The order required her to obtain an engineer report to say what was unsafe without specifying the grounds or ordering her to remedy whatever might be unsafe within 30 days, as the law provides. As the house withstood hurricanes and storms for two years, and was now reinforced, and as the city had shown little concern throughout, the timing of this action raises serious doubts Finding that no timely appeal was available to her, Francesca took steps to reinforce the temporary structure as specified by her engineer, and met all other conditions, including a safety fence, so that the inspector, acting under provincial law, could not reasonably go through with his eviction. But three weeks later, without notice, bylaw officials evicted her under local statute, falsely claiming there was an emergency situation. They gave her just minutes to pack some belongings and forced her to leave her cat behind. They also misled the public by telling the media she had no heat or water, though they had never conducted an inspection inside her home, and as well, as a private homeowner, she was not subject to such inspections. Ms Rogier returned the next night to find that her cat, Amelia was trapped in the house and the water heater was broken. The equipment was fully functioning the day before. An HRM solicitor told her that the men who erected the fence said that they "saw" a hose was detached from the heater, whose element had burnt out. As she used the hot water minutes before leaving, and as the heater was located under the house, well away from the fence-line, foulplay seemed likely. In addition, on her return she found that the city had erected a second fence of expensive chain link, with two locked gates. The dog run she built, which was approved by HRM under court conditions, was also damaged. Ms. Rogier was effectively homeless for eight months, yet due to her status, was not entitled to any social services. By April, giving her seven days notice, HRM initiated proceedings to obtain a demolition order. Ms. Rogier obtained a reprieve to resume construction, but after 30 days, a council committee went ahead and granted the order anyway, improperly overstepping provincial Heritage law protections. Forced to rush into construction under threat of demolition, Ms. Rogier was exploited again by a series of contractors, yet successfully completed enough work on the foundation in order to forestall demolition and regain occupancy rights in August 2011.


20. Her worries did not end there, however, as the city placed its own form of lien on her

property, an amount of ca. $10,000, which was transferred to her tax account. HRM statute entitles it to place her property on a tax sale auction any time after June 30. Once again HRM provides no proper appeal process, and Ms. Rogier must file for another judicial review in order to protect her property, or risk being evicted and losing her home without redress. This situation prevails, even though this past March, the city informed her that its demolition order was never valid, due to its failure to properly constitute the committee who issued it. 21. Ms. Rogier has long appeared in sessions before the court, though none of them have worked in her favour. In the meantime, her dog has aged in confinement, no longer housetrainer or accustomed to life outside the kennel. She is currently threatened with euthanasia. LEGAL OPINION The chief contentions of this Legal Opinion are: 1. That the prolonged incarceration of Brindi is unfair, illegal and untenable in the eyes of law. 1.1. Although the Municipality has the responsibility to take reasonable steps to ensure public safety, the incarceration of living property that poses no danger whatsoever to public safety is wrong. In pursuing the case, the Crown and the Animal Services, Nova Scotia, have violated Ms. Rogiers individual rights and in the process, natural justice and procedural fairness. 1.2. The content and the calls and dispatcher Michelle Steens statements both show that it was Ms. Stehen who suggested filing a report, and that it was some time before Ms. Rogier decided in desperation to go along with it. This was the action of a person in shock and in fear for her dogs life her dog who already had been seized without notice, without due process, and suffered two long years. It was the action of a person under duress and vulnerable to suggestion from a trusted person. It was the unfortunate but understandable decision of a person who had already been subject to unfair treatment by HRM for a prolonged period of time. 1.3. In the Supreme Court case that Ms. Rogier was forced to bring against HRM in order to recover her dog, Justice Beveridge was able to conclude HRM acted unfairly and had indeed denied her due process. Following that ruling, HRM laid charges against Ms. Rogier for the first time on record, which led to a prolonged trial that did not conclude for another 18 months, during which the municipality refused to release her dog. Aware that HRM did so without apparent legal authority or any effort to obtain it, Ms. Rogier had a reasonable expectation, then, that HRM would not treat her fairly in the future. The Crowns ungenerous rendering of Ms. Rogier in its sentencing statement reflects the same lack of fairness she could expect. I note that the prosecutor concedes that HRM would seize a dog for a minor incident - the very action that Ms. Rogier was subjected to in 2008, yet


HRM justified it by lying that the law mandated it. To employ such argumentation is rather disingenuous and unfitting for a public prosecutor. 1.4. It is established law in Rylands v. Fletcher (1868 UKHL 1), that "the person who for his own purpose brings on his lands and collects and keeps there anything likely to do mischief, if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape". However, there has been no violation by Ms. Rogier on this front in that Brindi was not inherently dangerous property or property likely to do any mischief, that Ms. Rogier did not exhibit any proclivity to wilfully allow Brindis escape and finally, that, there was no permanent damage whatsoever from Brindis behaviour. 1.5. Ms. Rogier, at all times has been co-operative, and sincere in her understanding of other pet owners concerns. She has formally apologized for every incident, ensured to check if the other dog was okay, offering to pay for vet exams even when the dog showed no sign of injury, calling a trainer whenever something went wrong, and organizing more training for Brindi than the court required. That she made mistake in having a switch malfunction in a new car was only that a mistake, just as every human is fallible to error. It would appear that through systemic targeting of her house and her dog two things she hoped to enjoy for a long time HRM has arbitrarily and unrelentingly even marginalized this lone woman, a qualified architect and university professor who was selected by the provinces special Nominee Program for immigration sponsorship. 1.6.Furthermore, assuming, but not conceding that Brindi was aggressive and posed a threat to public order, it would only attract the applicability of Generic Tort Law, vis-a-vis responsibility for property. This would make dog owners liable for any damage caused by dogs to persons or other domestic animals. Save from this, in the absence of an explicit law on Animal Rights or Animal Liabilities in Nova Scotia, Ms. Rogier cannot be left at the mercy of an arbitrary policy. Moreover, none of the incidents involved any major damage. Whatever incidents did involve damage, it was minimal and ones that Ms. Rogier fully cooperated with in order to set right. 2. That Brindi should not be destroyed, put down or euthanized. 2.1. Brindi was and has always been handled with discipline, and has exhibited a very low level of aggression. When she was adopted, she was immediately spayed and given all the necessary vaccinations. Ms. Rogier has taken great efforts in ensuring that Brindi was trained and wellbehaved, so that she could have her under control at all times. Brindi was and is never aggressive to people. Fighting with dogs is not even remotely typical of her: ample testimony and documentation provided to HRM and subsequently Judge Murphy demonstrated that she got along very well


with the vast majority of dogs, even allowing them to enter her home and enjoy her precious beef bones. 2.2. If Brindi's behavior "clearly demonstrates" anything, it is that she is not a risk to human health and safety, and that with dogs, she consistently refrained from inflicting serious harm, i.e., injuries requiring medical treatment. Therefore, it is clear that the level of risk Brindi presents is low when compared to the spectrum of dogs and dog behavior. This claim is corroborated by professional opinion based on the record and a series of evaluations. When incidents with dogs occurred, they mainly happened around Ms. Rogiers property. Ms. Rogier made sure to respond within seconds and had little trouble regaining control of Brindi. None of the incidents in question were deemed life-threatening, or potentially lifethreatening 2.3.In the incident in 2007, Brindi incurred no injury to a dog or a person; she had broken a lightweight leash and gone after a dog in front of the house. Ms. Rogier was on the scene, regained control of her dog in seconds, and was able to determine the other dog was unharmed. The owner reported it nevertheles. Ms. Rogier received a warning. A second, also minor incident in April 2008 occurred with a dog in front of her house, virtually inches over the property line. Animal Services officer Tim Hamm informed Ms. Rogier that he would issue a fine. A few weeks later he returned with a muzzle order for Brindi. It is pertinent to note that Ms. Rogier volunteered to build a perimeter fence in lieu of the muzzle order, but Mr. Hamm neither agreed, nor informed Ms. Rogier of the fact that the decision was changed to accommodate the dog owner who reported Ms. Rogier. The owner had conceded that she reported the incident not owing to the nature or severity of the incident itself, but rather because of stories she heard, without attempting to determine if they were true. 2.4.In 2010, after years of incarceration, Brindi was again seized following an incident that did not result in serious injury. In fact, the other dog owners initially believed their dog was not affected at all. HRM laid no charge made against Ms. Rogier at the time of seizure; theses followed over a week later. In all other incidents which amounts to just a few in fact Brindi had indulged in no aggression that sparked off injury to any animal, or person. 2.5. As depicted in paragraph 1.3., if any legal rule would apply, it would be those couched under the General Tort Law. However, none of the provisions under Tort Law authorize, nor allow for the use of a policy of putting a dog down, or detaining a dog for unreasonable periods of time. 3. That Brindi should rightfully be returned to her owner, Ms. Rogier. 3.1. Brindis prolonged incarceration is not only a violation of the rights of Brindi herself, but also a flagrant violation of Ms. Rogiers rights. 3.2. Canadian Law is adherent to the core tenets of natural justice. Per the legal regime, therefore, any instance of procedural unfairness constitutes a


violation of natural justice. The Right to be Heard and the Right to be judged impartially are two basic tenets both of which have been violated by detaining Brindi for prolonged periods. 3.3. Incarcerating Brindi is grossly in opposition to Ms. Rogiers Legitimate Expectations. Legitimate expectation of procedural fairness applies when a public authority had promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. By not adhering to the expected yardstick of conduct in allowing a dog to remain with its owner pending a trial, or releasing Brindi after 90 days (or earlier) in line with the limits set by the Criminal Code and the Summary Proceedings Act, there is a flagrant disregard of her expectations from the Crown. 3.4. The minimum standard of fairness has also been breached in Ms. Rogiers case. Prolonging Ms. Rogiers penalty through the unfair incarceration of Brindi breaches any reasonable yardstick of fairness in conduct. Brindis incarceration has no sanction under law, and has no legal basis whatsoever. It is submitted that the rights of Ms. Rogier and Brindi have been violated without reason or fairness. It would be in the fitness of things for Brindi to be released with immediate effect.

[sent to Dartmouth Provincial Court via email and fax, ca. 6:07 am June 25, 2012]