The motion used for Wicca

MOTION TO INSTITUTE PROCEEDINGS
AND FOR AN ORDER TO STAY EXECUTION
(Art. 110, 46 C.C.P.)
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IN SUPPORT OF HIS MOTION, THE PLAINTIFF RESPECTFULLY SUBMITS:

1. Plaintiff is faced with an order by Benoit Lacroix, the director of the Direction de l’aménagement urbain et des services aux enterprises of the Respondent (hereinafter, the “Director”), to have the Plaintiff’s dog, Wicca, euthanized within 48 hours of the delivery of the order, dated June 11, 2012 (hereinafter the “Order”), the whole as appears from a copy of the order attached hereto as Exhibit P-1;

2. Plaintiff has maintained that the Order is without merit, has refused to conform to it, and has since its issue sought a way to appeal it before the administrative appeals channels of the Respondent, without success;

3. The Director issued the Order without questioning the Plaintiff or examining the dog, and without giving the Plaintiff an opportunity to be heard on the matter;

Background

4. Plaintiff is an responsible dog owner, and has for the past 3 years lived with Wicca without any prior incidents.

5. On June 7, 2012, the Plaintiff’s dog, Wicca, allegedly bit a stranger on the street.

6. When the police arrived at the scene, the Plaintiff explained to them what had happened and took full responsibility for his dog;

7. The Plaintiff’s dog Wicca, motioned to bite the paramedic, the Plaintiff being in control of his dog, prevented any further incidents.

8. The police officers did not cite the Plaintiff with an infraction but reported the case to the City Inspector at the Canine Control Department;

Authority to Make the Order

9. The City of Montreal By-law concerning Dog and Animal Control, R.B.C.M. c. C-10 (the “By-law”) attached hereto for your easy reference as Exhibit P-2, authorizes the Director of the Service des permis et inspections to order that a dog be euthanized, if he is of the opinion that the dog constitutes a health or safety hazard, as per sections 1 and 19 of the By-law;

10. The Director has overstepped his authority in making the Order, because he is not authorized by case law to make such order without a due process and he is not authorized by the By-law to make such order;

Procedural Justice

11. The Order is judicial in nature because it is based on the opinion of the Director of l’aménagement urbain et des services aux enterprises as to whether a dog constitutes a health or safety hazard;

12. The Order gravely affects the rights of the Plaintiff as it orders him to end the life of his pet;

13. The Order is tantamount to expropriation of property as it has the effect of depriving the Plaintiff of his property;

14. The Order was made without questioning of the Plaintiff, nor an examination of the dog ordered to be euthanized;

15. The Order mandates compliance within 48 hours and does not indicate any means of appeal;

16. Plaintiff has tried contacting various officials of the City of Montreal in an attempt to appeal the Order, notably by offering additional information in the form of an expert report as to the condition of his dog, but without success;

17. Plaintiff has been denied a fundamental right to his property without due process and without being given a right to be heard;

By-law contravenes Charter rights

18. The By-law has authorizes officials of the Respondent to kill a dog on site, thus violating the Plaintiff’s rights under sections 7 and 8 of the Quebec Charter of Human Rights and Freedoms and section 8 of the Canadian Charter of Rights and Freedoms;

19. The By-law has empowered the agents of the Respondent to issue an order, effectively not susceptible of appeal, to alienate the Plaintiff’s property, which is of great value to the Plaintiff not merely as property, thus violating the Plaintiff’s rights under section 6 of the Quebec Charter of Human Rights and Freedoms;

Order to stay execution

20. The By-law ordinarily mandates the keeper of the dog that bites another dog or human to muzzle the dog for 90 days when outside, and the Plaintiff has agreed to have Wicca muzzled when outside;

21. The agents of the Respondent are authorized by the By-law to seize the Plaintiff’s dog and have it euthanized immediately, after 72 hours of the date of the Order;

22. Unless this Order is stayed, the Plaintiff risks losing his dog, which would render the present procedure moot, save the constitutional considerations;

23. The Plaintiff’s motion is well grounded in facts and in law;

FOR THESE REASONS, MAY IT PLEASE THE COURT:

STAY the execution of the order of the Respondent to euthanize the Plaintiff’s dog, dated June 11, 2012 (the “Order”), until a decision is rendered by the Court on the merits of the case;

QUASH the Order of the Respondent;

QUASH all the citations against the Plaintiff relating to the non-compliance with the Order;

DECLARE unconstitutional the sections of the City of Montreal By-law concerning Dog and Animal Control, R.B.C.M. c. C-10, notably section 19, which empower officials of the Respondent to seize or euthanize a dog without due process;

THE WHOLE with costs.

Montreal, June 15, 2012