Diesel the dog has won a stay of execution, but its owner must still give the animal to someone else.
A B.C. Supreme Court judge has upheld a lower court's decision to declare the seven-year-old dog dangerous. However, Justice Geoff Barrow supported David Smith's appeal to the extent that Diesel shouldn't be destroyed and can be adopted out.
"I am satisfied that given sufficient safeguards . . . adoption is a viable option," Barrow said in his written decision. "While I am satisfied that Diesel is dangerous . . . and while he may be beyond corrective training, he is not so dangerous as to be beyond the ability of a responsible owner to control."
The judge ordered a new hearing next week to discuss whether the Central Okanagan Regional District, which wanted the dog put down, finds a new owner or if Smith should do it. Barrow will hear the arguments next Friday.
"It's good news, bad news. Diesel lives but he will not be allowed to come back with me," Smith said. "The judge has also found conditional releases are definitely of the day, so that is very good news for every dog owner in the province."
Diesel has languished in the district's dog pound for two years. An animal-control officer seized the German shepherd-rottweiler cross from its Peachland home in February 2011. Officers had received several complaints about aggressive behaviour and had given Smith numerous tickets and warnings.
The regional district's dog-control service applied at trial to euthanize the dog in August 2012. After listening to witnesses and experts for four days, Judge Mayland McKimm declared Diesel a "dangerous dog."
Under the law, McKimm concluded he had only two choices: order the dog destroyed or return it to its owner. He chose destruction and Smith appealed, arguing the judge could have made a conditional order to return Diesel to him.
In his ruling on the appeal, Barrow said Smith is "both unreliable and profoundly irresponsible" in the dog's care and control. However, he concluded the court has the authority to make a conditional order. He set aside the death sentence on condition that the two sides work out who decides where Diesel will go.
The regional district made Smith a similar offer shortly before his appeal last month - Diesel could be released if Smith paid its legal fees, apologized and agreed to have the dog adopted out to an anonymous owner outside the Central Okanagan. Smith said no, arguing that if no one knew where Diesel was, the dog could be killed.
"This judgment is absolutely in line with what we requested, and we stand united with all those people in our community and beyond who wanted a new life for Diesel," said the district's administrative officer, Paul Macklem.
Neighbours on and near Witt Place in Peachland have complained about Diesel since 2006. They said the dog chases cats up trees, runs up to other dogs and jumps up on people.
One elderly woman complained Diesel hit her dog "something fierce" in 2008 and continued the attack until she grabbed Diesel's collar and twisted its head to the ground. Her dog suffered cuts to its leg, stomach and hindquarters. A year later, she said, Diesel punctured its lip and chewed its ear.
A 12-year-old girl was delivering newspapers when the 95-pound dog jumped up on her with its teeth bared. Another time, Diesel "charged" her as if to bite her. She put her hands in her pockets to protect them and yelled at Smith to get the dog off her, she said.
A man complained Diesel and Smith's other dog attacked his 14-year-old English spaniel, prompting him to pick up his pet and kick at the animals. Smith grabbed him by the collar and yelled at him to stop kicking. The spaniel was still limping two years later, the man said.
The dispute has cost the regional district nearly $100,000 in legal costs and boarding fees. Spokesman Bruce Smith has said the district expects to recover some of those costs. Barrow will decide how much each side pays after hearing their arguments.
If the regional district agrees that Smith can place Diesel in a new home, the judge wants a veterinarian to approve the new owner and suggest ways to constrain the animal. If the district places the dog, Barrow will impose the conditions.
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