Are you allowed to smash a window to save a dog from a hot car? Lawyers say law isn't clear

The death of a dog in a hot car in Calgary has sparked questions about what people can do if they see a pet in distress inside a vehicle.

Lucky, a four-year-old Alaskan malamute and German shepherd crossbreed, died July 1 after being left in the vehicle for several hours, according to city police. 

The incident has raised questions about what bystanders can legally do — beyond calling 911 — to save an animal if they come across a similar situation. Can people, for example, break a car window to rescue a desperate dog?

According to lawyers, there's no clear answer.

"There is no defence right now in any sense of the word that actually covers this particular issue," said Peter Sankoff, an Edmonton criminal defence lawyer and an expert on animal law issues.

"This question of whether it's permissible has never been resolved by anybody. It's sort of an open question. I tend to think there would be a good defence for it, but that doesn't mean that I'm correct."

Lucky's owner is facing charges, including one count of causing damage or injury to an animal under the Criminal Code. She has also been charged with one count of causing an animal to be in distress under the Alberta Animal Protection Act. Police said the car's doors were locked and the windows were up.

"It boggles my mind that we continue to receive calls for service related to animals left in hot vehicles," said Acting Insp. Scott Neilson of the Calgary Police Service.

When it comes to children being left in hot vehicles, Sankoff says the law is more clear. In those cases, there is the necessity defence, which allows people to act for the greater good.

The necessity defence has been accepted by judges — and in theory it could be expanded to include animals, or a new defence could emerge specifically for pets. Under Canadian law, animals are classified as property.

For a new defence to be created, however, a person would need to be charged for the specific incident. 

"I've never heard, read or encountered a case myself after 44 years of practising criminal law, both from the Crown and defence, where a scenario like that happened and someone was charged," said defence lawyer Balfour Der, who is a former prosecutor.

"I expect that we don't hear or read about it because the police refused to charge in that scenario because someone is doing what is morally right."

And even though it might be the morally right thing to do, Der said breaking into a car is still considered property damage, which is a criminal offence — even if the person's intention is to save a pet.

He added  it could become even more convoluted because it might not be clear how long the dog had been in the car and what its specific state could be.

"It's sometimes a greyer area for civilians, and frankly, [police] don't want civilians having to make those kind of calls," Der said.

"You want to be sure that you're actually preventing a crime, you don't want people running around trying to be police officers."

Whether or not police would charge someone for breaking a window to save a dog, however, remains up in the air.

"It comes down to intent. I can't recall a situation where I've had to deal with that," said Neilson, with the Calgary police.

"I can't say they would be [charged] or wouldn't be, it's one of those things where you'd have to admire someone's intent in that. But I'm also not advocating that people do that, either. Don't take the law into your own hands."