Yukon appeal court urged to toss decision on controversial kennel

Shelley Cuthbert says the judge who ordered her to close her Tagish, Yukon kennel was biased and didn't give her enough help to argue her case.

Cuthbert presented her arguments during a Yukon Court of Appeal hearing on Thursday. She and her kennel have been at the centre of a legal battle for a number of years.

Cuthbert was ordered to forfeit all, but two, of her dogs to territorial authorities, after her neighbours sued. They argued the facility, which had more than 50 dogs, was a major disturbance.

Cuthbert represented herself in court on Thursday, and during her original trial.

Before the hearing began, the panel of three appellate judges warned Cuthbert she came close to not having her appeal heard at all. She had refused to comply with a court order to surrender 15 dogs last month. 

"I didn't hand any over dogs because the appeal was coming up and I made it clear to the courts the dogs would die, they don't meet the criteria [to be adopted]," she told Chief Justice Robert Bauman. "I did not comply, I will be honest about that and upfront."

Bauman told her because of that non-compliance, they could have dismissed her appeal. But after discussion, the judges decided it was in the interest of all the parties to proceed with the hearing.

"I just want you to understand the kind of jeopardy you put yourself in when you don't comply with an order," Bauman said, telling her there was "no excuse."

Once the hearing was underway, Cuthbert spent about 45 minutes walking the judges through the essential points of her case.

She said the original trial judge, Justice Leigh Gower, erred when he didn't properly explain important case law to her.

There were times where Gower refused to allow her to enter some of her evidence and her case law, and she said he didn't properly explain those decisions to her.

"I didn't have a clue," she said. "I didn't know what he was talking about, didn't know how to argue it."

Cuthbert said there were a number of other instances where Gower decided to not consider her evidence, but she was left feeling confused and unable to argue about what was happening.

She also believes Gower erred by not considering the precautions she had taken to mitigate the impact the animals were having on her neighbours. 

Cuthbert choked up as she said her personal investment "should have been noted." Gower didn't balance the remedy over the needs of both parties, she argued. 

Cuthbert's final appeal argument related to concerns over whether Gower should have been the presiding judge, when he had ruled on cases involving her in the past.

Appellate judge Bauman reminded Cuthbert she had the opportunity to raise the issue before they went to trial.
But she said she was too scared and feared repercussions.

Cuthbert said it was "a one-sided trial."

"I was not being treated fairly," she said. "I had concerns and fears of repercussions. That's all I have, I don't think I can do anymore."

Lawyer Meagan Hannam represented Cuthbert's neighbours in the appeal.

She pointed out that Gower knew Cuthbert had legal assistance throughout the trial.

Hannam also outlined several ways Gower assisted Cuthbert with procedural issues before and during the trial.

She argued there was no indication of bias.

"It's apparent on the record that the trial judge wasn't preclosed to a certain judgment," she said.

Cuthbert was given a final opportunity to respond to Hannam's arguments. 

"Alls I'm asking for is a fair trial. I couldn't have a fair trial because I just didn't know," Cuthbert said. 

The judges have reserved their decision.