Court Cases & Orders

Should Canadian Witnesses Be Allowed “Comfort Dogs” in Court? 

Written by Russell Alexander / (905) 655-6335

Should Canadian Witnesses Be Allowed “Comfort Dogs” in Court? 

We have done several prior blogs about the role of pets in a family – and how Canadian Family Law views them as “property” when a couple splits up. While Courts may have no wiggle-room around this traditional characterization, they have nonetheless acknowledged that pets do have a special place in the hearts of many people.

A recent U.S. ruling has affirmed that principle in a different context – namely in criminal trials where witnesses want the presence of a “comfort dog” with them in court while testifying. In a decision from late September, the Pennsylvania Supreme Court decided that these comfort dogs might be acceptable in some situations, and with some precautions taken.

The case involved an accused who had been convicted of third-degree murder in 2018, after a criminal trial that involved several witnesses giving testimony. One of them was a child witness who had autism and had expressed a fear of testifying. The trial judge allowed her to give evidence while having a specially-trained Labrador/golden retriever mix sit nearby, hidden under the witnesses stand. The dog was also ordered to be led in and out of the courtroom so that the jury could not see. The judge made this ruling, and allowed for these accommodations, before the child’s evidence was heard.

The accused appealed the conviction on several grounds, and the matter came before the Pennsylvania Supreme Court for its consideration.

Among the issues raised on appeal was the trial judge’s handling of the child’s request for the comfort dog.  The accused complained that the jurors may nonetheless have noticed the dog, and that its presence may have stirred undue sympathy in them.  Or, the dog may have distracted the child while she gave her evidence. Either way, the jury may have concluded that the child witness was particularly vulnerable, and may have received her testimony differently than that other witnesses.  All of this may have tainted them against the accused.

In its appeal ruling from late September, the Pennsylvania court disagreed.  The test for determining whether using a comfort dog is appropriate requires a “balancing test”, which the court described this way:

We hold that a trial court should balance the degree to which the accommodation will assist the witness in testifying in a truthful manner against any possible prejudice to the defendant’s right to a fair trial.

In this case, there had been nothing untoward in the trial judge’s handling of this issue. The Pennsylvania Supreme Court Rules gives trial judges the discretion to exercise reasonable control over courtroom-related matters.  This includes how witnesses are examined.   The wording of the Rules was broad enough to cover the question of whether a comfort dog would help a witness testify truthfully during a trial.  In the present case, the trial judge had properly applied that test.

For the full-text of the decision, see: Commonwealth of Pennsylvania v. Purnell.

It’s interesting to note that approach taken in this Pennsylvania ruling is in-line with the one used in more than 15 other U.S. states; even so, the law on this point is not uniform.

In certain states, there is specific legislation to allow for comfort dogs to be used by adult witnesses with physical, mental or developmental disabilities, and by adult witnesses in sexual or domestic assault cases.  In others, specially-trained comfort dogs are only allowed in certain criminal cases involving children, or in cases involving neglect and abuse.

At the moment in Ontario, there are no laws or court Rules that address the use of comfort dogs at all; if the issue happens to arise in the future, individual judges will have to be guided by the principles that give them inherent judicial discretion to control their own courtroom process.

Should comfort dogs be allowed in Ontario courts? What are your thoughts?

Stay in Touch

Keep learning about the latest issues in Ontario family law! Subscribe to our newsletter, have our latest articles delivered to your inbox, or listen to our Podcast Family Law Now.

Be sure to find out more about the "new normal", by visiting our Covid-19 and Divorce Information Centre.

About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.