Whitehorse Daily Star

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NOISE A FACT OF LIFE – ‘Dogs will bark, especially if they perceive danger,’ Tagish Kennel owner Shelley Cuthbert told the Yukon Court of Appeal on Thursday.

Kennel owner makes her case to appeal court

Shelley Cuthbert has taken a Yukon Supreme Court decision that she remove the Tagish Kennel dogs from her property to the Yukon Court of Appeal.

By Gord Fortin on May 11, 2018

Shelley Cuthbert has taken a Yukon Supreme Court decision that she remove the Tagish Kennel dogs from her property to the Yukon Court of Appeal.

Chief Justice Robert Bauman, Justice Susan Cooper and Justice Gregory Fitch presided over Thursday’s proceeding in Whitehorse.

Cuthbert found herself taken to court based on several noise complaints filed by her neighbours: Stefan Ludwik Angerer, Ursula Angerer, Leopold Selinger, Edeltraud Selinger, Gerry McGraw and Stefan Landfried. She represented herself.

Justice Leigh Gower had presided over Cuthbert’s trial. It was his October 2017 decision that is being appealed.

Cuthbert was allowed to keep only two dogs as pets and could not have any additional dogs on her property at any point. Her two dogs must be kept inside from 10 p.m. and 7 a.m.

Bauman asked if she had complied with the court order. Cuthbert said she had not, explaining that the dogs’ lives would have been put at risk if she had stopped caring for them.

She said she had been upfront about not following the order and refuses to condemn these dogs to death.

Bauman warned her that not following a court order could get her appeal dismissed. He said the court will hear the appeal but he wanted to make sure she understood that she put her case in jeopardy.

Cuthbert started her arguments by saying there was an error in law.

She mentioned the circumstances around her efforts to get a video submitted for evidence.

She was told by the trial judge to bring the people involved in the video to court to testify as witnesses.

“That evidence is crucial to show it is quiet (at her property),” Cuthbert said.

Fitch said no one is saying it is never quiet on her property. The complaints are of repeated bouts of barking that have hindered her neighbours’ enjoyment of their property.

He added the trial judge looked at this issue pragmatically and felt the video didn’t matter.

Cuthbert later argued that judges in general should do more to make self-representers aware of law. She felt there was a lot she did not understand during the proceedings.

She tried to bring forward case law, bylaw and regulations, but kept being told it was irrelevant information. She was confused later when the trial judge referenced such materials in his decision.

She next referenced affidavits and letters of support. She tried to submit these documents but was told that the people who signed them needed to appear in court as witnesses to go through cross examination. If they did not testify, limited weight could be placed on letters of support.

As for the dogs’ noise, she said dogs bark especially when they are provoked. She said one of her neighbours approached her property and filmed the dogs, which the animals perceive as a danger, and therefore cannot relax.

If the neighbour just ignored the dogs, they would eventually settle down, she said.

“Dogs will bark especially if they perceive danger,” Cuthbert said.

She argued that this activity hurts the animals.

It causes injury and costs her money in veterinarian bills. She said one of her neighbours brings other people through his property to see the dogs. This irritates them more and causes them to bark.

“The whole video taping has hurt the dogs,” she said.

She said she tried to make the trial judge understand this. Dogs feel fear and some have extreme anxiety, she explained.

She had no control over outside factors like fireworks, gun fire or people honking their vehicle horns – three things that cause the dogs to bark. She explained that the dogs settle down once they realize they are not in danger.

Cuthbert also addressed some of her neighbours’ claims. Two have claimed they were unable to sell their property due to the kennel.

She said there is no evidence that one of her neighbours had tried to sell his property, while the other neighbour did successfully sell a property.

As for the barking itself, she said it is rare to hear a single dog barking when there is a pack of dogs.

When you are dealing with a pack, multiple dogs will bark at the same time. She argued this is relevant because there are several times where a single dog could be heard.

In that case, there is no way to verify that it is one of her dogs.

Fitch said the trial judge did understand this argument; he just did not accept it. He added that the judge very well understood the position and explained that the court of appeal cannot do retrial evidence.

Cuthbert said she has tried to mediate the situation with her neighbours. She has taken many reasonable precautions to reduce barking.

She put up privacy fences and offered to do the same for her neighbours, one of whom refused the offer. Her neighbours have admitted to not wanting to speak with her.

“I’ve tried,” she said.

As for the claims that the noise is overwhelming, she said there are no objective data to back that up. All that came out at trial was subjective testimony.

She argued that noise is subjective but reviewed case law and found that objective data on the noise should have been gathered.

Neighbours also claimed to have health effects. No data were given on this claim neither.

Fitch said the trial judge was aware of the lack of data. The trial judge felt Cuthbert had exhausted all avenues to mitigate the noise.

Cuthbert disagreed, saying the one neighbour could have accepted the fence.

She argued that remedies are a balancing act. No one tried to bring everyone into a room to come up with a compromise to fix the situation.

She feels it is her property too, and her interests are not being taken into account.

She felt the trial judge did not consider the six years of harassment she has endured. She feels her neighbours have ganged up on her.

Cuthbert said she was hired to catch stray dogs and find them homes, in an area covering Tagish and Carcross.

She trains these dogs and finds them homes down south, saying this rescue service is a necessity.

She said stray dogs are an issue everywhere because stray packs of dogs have caused death, mentioning specifically the case of Shane Glada in Ross River. Glada was killed by a pack of roaming dogs in October 2015.

Meagan Hannam, the lawyer representing the neighbours, argued that the trial judge did not make a mistake in his decision.

Hannam said Cuthbert may have been representing herself but she did receive assistance from both a lawyer and the trial judge.

They explained document disclosure, how to enter exhibits, how to question witnesses and the issue of witnesses needing to be in court.

She felt there was ample assistance.

Hannam also pointed out that the trial judge commented that Cuthbert was doing well during the trial.

Hannam said that because Cuthbert felt she had done all she could to remedy the situation, the only way to proceed was by an injunction.

The trial judge cannot suggest strategies to self represent.

“In our view, there was effective assistance and no bias in this matter,” Hannam said.

Cuthbert clarified that the lawyer who helped her was only retained until the statement of defence was attained.

This lawyer did not represent her during the trial, and she could not discuss any new discoveries with the lawyer.

Bauman said the court’s decision will be available later.

Comments (12)

Up 4 Down 1

Phyllis on May 17, 2018 at 12:56 pm

@Max Mack Why? would you choose to give her a "second chance"? Are you kidding me? Have you actually followed what is going on? Have you actually read what is going on? Do you have any understanding at all of the situation? Seriously, if you want to do some good give your money to a worthy cause. Find a group that actually wants to help animals. Go to the shelter and give them your money they need to feed and properly house and care for animals.

Up 5 Down 1

Tnk on May 16, 2018 at 10:19 pm

Ridiculous, completely stupid that this hoarder is even getting her retrial for the umpteenth time. She did not follow any of the courts orders starting with reducing numbers over the past 4 months and going on about how they forced her to kill dogs which was BS. Even more ridiculous the courts don't enforce their own court orders and let her get away with it not to mention last time I called the animal health unit they said all animals are voluntarily relinquished which again makes no sense as there was a court order in place.
Someone should be getting fired for failing to do their job. Now she's appealing again trying to keep all the dogs again. What's the point of even having a justice system clearly it's failing. Horrible for the dogs being stuck with this hoarder, and terrible for the neighbors. The fact they won their court case after a very long haul and it just continues. Lastly, the fact nothing has been in the news, no updates till this. Its like their has been a media blackout I can't even believe it. No Justice is being served here.

Up 7 Down 3

Humble Measure on May 14, 2018 at 4:04 pm

@Response-- Shelley, it's okay to respond to these online comments with your real name. That would help people understand what is going on, and they might take what you say a bit more seriously. It seems weird reading all these comments where you refer to yourself as "Cuthbert". P.S. it's the grammar that gives you away.

Up 9 Down 4

ProScience Greenie on May 14, 2018 at 11:26 am

She's out of control re: dogs. Nice and caring person or not, that she doesn't get the rudeness to her neighbors of keeping so many dogs is a sign that she should be shut down until she either gets a larger isolated property (with her own money) or gets help for animal hoarding issues and take up a new way to make a living.

Up 10 Down 4

culture of entitlement on May 14, 2018 at 9:24 am

Her neighbors sued her for the noise and smell. Rightfully.
She went to court, she lost.
She went again, she lost.
She appealed, she lost.
She's appealing again.

This is ridiculous and a huge waste of time and resources.
Yes it's sad that the dogs will be put down, but it's sadder that people buy or adopt the pets then get bored of them and they end in a situation like this.

I'm sure her heart is in the right place, too bad she didn't think of how having 80 barking dogs may impact her neighbors. There is no justification, next time plan your ideas about saving animals somewhere far away and this won't be an issue, last time I checked the Yukon is a big place.

Up 5 Down 6

CJ on May 13, 2018 at 12:15 pm

I'm with Mad Max. Shelley seems to mean well with dogs, but has no people skills whatsoever, and that's created more problems than someone else, more capable of ingratiating themselves, might have had. That she ignores the law, unfair as the decisions might be, seems like an act of self-sabotage. But it's not fair criticism that she shouldn't self-represent. That's a reality these days. It's really too bad an animal welfare organization couldn't have helped her out.

I thought Gower was over the top, restricting her to two dogs, and that sets a precedent that, if I lived in a community with no zoning as Tagish is, would concern me. Some other elements of his decision seemed excessive, too, though I can't remember which ones. At the root of it, too, is that there's a need to help out these dogs. and it's really too bad that it's all about Shelley.

Up 10 Down 3

YTGuy on May 13, 2018 at 9:17 am

"You probably aren't good with people, but you are good with animals. You and your dogs deserve a second chance."
Says the guy that doesn't have to live near her.....

Up 8 Down 5

Missing the point on May 12, 2018 at 8:37 pm

Commenters: do you really think this story is about self representation .... it’s not even about Shelly or the dogs.
I see one moral from this story - a fable If you will. It goes likes this:

If a judge tells you do to something and you don’t like it. Don’t do it. Then cry about it and go ask another judge for a different answer. When he gives you a time line to accomplish something - lie about it the first time, ignore it the second time, and basically tell the system to shove it the third time. Lastly - tell 3 more judges that they don’t understand and top the cake by telling all judges that they are doing their jobs wrong.

What will happen you ask? -absolutely nothing!!!! Just some more publicity for you.
Seriously though - how do we expect our children to understand consequences when there never are any?

Up 4 Down 8

Response on May 12, 2018 at 4:31 pm

Max Mack - Cuthbert has a go fund me page for legal fees. The money that was raised hired a lawyer up until the statement of defense was done - money gone no more lawyer. For the appeal there was not enough to retain a lawyer, however the money raised for that paid for filing fees. Consultation etc., until it was gone. I agree with u the courts are out to get her and this is a gang up. So how can this still be going on--- simple. The money was not there for a lawyer sorry but the quote Cuthbert received was $70,000 dollars for all three trials do u have that kind of money in your back pocket? I know I don't and neither do most pple.
Finally to the last commentor-- the dogs euthanized Cuthbert already confirmed were medical and she confirmed she is in noncompliance because the healthy dogs don't meet the government criteria so she will not have them handed over to be euthanized. Respect in a neighbourhood goes both ways for all parties.

Up 8 Down 4

ngl on May 11, 2018 at 11:32 pm

We have a lot of dogs and OFTEN it is just one dog barking. We sneak out at night to figure out who it is making the racket and then use their name, "Shut Up Rover!' And they do. Or we recognize their bark in the first place and know exactly who it is.

Just mentioning this because Shelley said it is 'rare' for a single dog to be barking among a 'pack' of dogs. Not true. Especially at night. However! If there is a person walking by near the fence or something unusual in the bush yes, it's likely going to be a whole whack of them barking at once.

I admire Shelley in some ways but not in the way she refuses to acknowledge the impact she has had on the neighbourhood she moved into. Also it feels like her having the dogs put down rather than looking for homes might be a bit of blackmail. If so it's only making her look bad. But I do hold out the possibility that these dogs are so messed up that they are 'better off dead', especially given all the healthy and sane dogs who need homes in this territory.

Up 8 Down 5

How Is This Still Going On?? on May 11, 2018 at 5:06 pm

"Cuthbert later argued that judges in general should do more to make self-representers aware of law. She felt there was a lot she did not understand during the proceedings."

Yah, it's called hire a lawyer. Y'know... someone who knows all of these things already because they spent lots of time and money going to school. But naw, I'm sure you can do just as good a job because (reasons).

Self-representation just wastes everyone's time and tax dollars, and chokes up the courts leaving them less time to deal with the more serious issues.

Up 5 Down 7

Max Mack on May 11, 2018 at 4:29 pm

For the love of g**, please retain the best lawyer money can buy. Do not self-represent. Put up a go-fundme page and advertise it - I will gladly contribute to your (probably already lost) cause.

Why would I contribute to what I think will be a lost cause? Because I think people are ganging up on you, and because I think the "justice" system has it out for you.
You probably aren't good with people, but you are good with animals. You and your dogs deserve a second chance.

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