R. v. Namura Date:, 2014 BCPC 335

Citation: R. v. Namura Date: 20140807 2014 BCPC 0335 File No: M15478 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Corey NAMURA REASONS FOR JUDGMENT OF JUDICIAL JUSTICE H. W. GORDON Appearing for Municipality of Oak Bay : A. Sheffield Counsel for C. Namura Greg Piper Place of Hearing: Victoria , B.C.

Date of Hearing: January 27, 2014 Date of Judgment: August 7, 2014 [ 1 ] Corey Namura is charged under a Municipal Ticket Information authorized by the Community Charter with being a person who allowed his dog to bite, attack, terrorize or endanger a person or animal, contrary to

section 62 of the Animal Control Bylaw, 1999 of the Corporation of the District of Oak Bay. [ 2 ]

Section 62 of the Oak Bay Animal Control Bylaw, 1999 provides: a. No person shall allow his or her dog to bite, attack, terrorize, or endanger a person or animal. [ 3 ] The incident took place on Sunday July 14, 2013 just after 7:30 in the evening. Mr. Namura is the owner of two Rottweilers, Chloe and Clay. The alleged victim is Leona Hutchinson. [ 4 ] The interaction between Chloe and Ms. Hutchinson was at Maguina Street and Lorne Terrace next to Trafalgar Park in bucolic Oak Bay. [ 5 ] Ms. Hutchinson testified as follows. She is an animal sitter and was caring for a small dog.

She was on a walk with the dog and just leaving the beach area at Trafalgar Park when she noted two parked vehicles where the beach access emerges onto the street. She noted a man at one of the vehicles with two dogs that she was able to identify as Rottweilers. The man was later identified by Ms Hutchinson as the Defendant, Corey Namura. [ 6 ] The beach access emerges at the junction of Maquinna Strteet and Lorne Terrace, which meet in an “L” shape. There is a paved lip at the junction for 4 or 5 vehicles to park. From it is a paved path leading to a rocky beach area.

It is located at the base of the lookout on King George Terrace in Oak Bay. [ 7 ] One of the dogs had already alighted from the vehicle and had wandered a few metres away. The man was in the process of letting the other dog out of the vehicle. Ms. Hutchinson says she made a comment to the man to let him know she was there and asked if the dog was friendly, to which he replied it was. [ 8 ] As Ms. Hutchinson proceeded up Lorne Terrace, approximately 20 feet, one of the dogs chased after her and bit her right forearm.

She testified that the dog did not jump up on her, was unleashed and one of its teeth punctured the sleeve of the jacket she was wearing. [ 9 ] She further testified that it took some time for Mr. Namura to get control of the dog and to put it back in his vehicle. Ms Hutchinson waited some time to see if he would return to enquire about her arm. He eventually did return and looked at Ms Hutchinson’s arm. He was dismissive of its severity and did not offer her any assistance. She did ask if his dog had a rabies shot. Before departing, she noted the licence plate number of Mr. Namura’s vehicle. [ 10 ] Ms.

Hutchinson contacted the local Animal Control about the incident. Five days after the incident, she was interviewed by an Animal Control Officer for Oak Bay, Adam Sheffield, and he took a statement from her and photographed her right arm and the sleeve of her jacket. The photographs were produced into evidence. On the forearm can be seen a series of small scabs in semi circular shape, a shape consistent with what would be made by the upper jaw of a larger dog and, in my view, inconsistent with any other rational cause.

There was also a large area of bruising above and below these scabs and on the under part of the forearm. The thin-material right sleeve of the jacket had a rip at approximately the spot where the scab marks are located on the forearm. [ 11 ] Ms. Hutchinson gave her testimony without reference to her written statement and it was not shaken on cross examination. [ 12 ] Mr. Namura also testified. His recollection of the events was essentially the same as that of Ms.

Hutchinson with a few notable exceptions. [ 13 ] He testified that he had seen Ms Hutchinson as he pulled in to the parking area but did not see her approach his vehicle immediately prior to the incident. Chloe, his 17 month old Rottweiler was overly excited in anticipation of the walk. He says he attached a leash to her leather collar in the car. Also contrary to Ms Hutchinson’s testimony, he says Ms. Hutchinson walked up to his vehicle and was about 6 – 8 feet away. When Chloe saw Ms. Hutchinson and her small dog, she leaped at her. Mr.

Namura says the leash was about 1.5 m in length and Chloe reared up like a horse because of the pressure on her neck from Mr. Namura holding her back by the leash. He further said he did not see Chloe’s head go anywhere near Ms Hutchinson and did not see her bite her. [ 14 ] Mr. Namura says he acquired Chloe in Germany as a young puppy. She is very excitable, sometimes hyper-excitable. Mr. Namura knew that Chloe was excitable, even hyper-excitable, was a large dog, although not fully grown, and could not be trusted around small dogs.

He does not let her get close to small dogs because of her size and strength. [ 15 ] He describes Chloe as very friendly and loves attention. He admitted there had been a previous warning from Animal Control about Chloe In respect of the same dog Ms. Hutchinson was walking that day (although not by Ms Hutchinson) but he says the warning was for having Chloe off leash and not about aggression and the point was not pursued by Mr. Sheffield in reply. [ 16 ] I carefully observed Ms. Hutchinson and Mr. Namura as they gave their evidence. Both were forthright and not evasive.

However, I find Ms Hutchinson’s evidence is objective and internally consistent in every respect. On crucial matters, I find Mr. Namura’s evidence as not so internally consistent. For example, he says he did not see Chloe bite Ms Hutchinson and suggests her injuries were caused by Chloe’s claws when she was rearing at her. The only conclusion I can come to is that Ms Hutchinson’s injuries were from a bite and not a scratch from a dog’s claws and it would be evident to Mr. Namura, even on his version of the event, that

Chloe did bite Ms Hutchinson’s arm. [ 17 ] Where the evidence differs between that of Ms Hutchinson and Mr. Namura, I accept the evidence of Ms Hutchinson. [ 18 ] On all of the evidence, I find that Chloe, while unleased, made a charge on Ms Hutchinson from at least 6 - 7 metres away and clamped her jaws on her right forearm, causing numerous small lacerations to the skin and significant bruising to the surrounding area on both the top and bottom of the forearm. This occurred while in both the care and control of her owner, Mr. Namura. [ 19 ] I also find that Mr.

Namura has not made out a defence of due diligence. He was aware before July 13, 2013 that Chloe was hyper-excitable. He did not let her get close to small dogs. Ms. Hutchinson was with a small dog and he knew that. And yet he did not maintain proper control of Chloe, allowing her to leave the vehicle unleased, in close proximity to Ms Hutchinson and the small dog she was walking. [ 20 ] Therefore, I find Mr. Namura guilty of allowing his dog, Chloe, to bite and attack a person, being Ms. Hutchinson, contrary to

section 62 of Bylaw 4541 of the District of Oak Bay. [ 21 ] Mr. Namura raised with me in argument several points, none of which I accede to. In his argument, he cites three decisions: Lee v. City of Vancouver 2002 BCSC 240 , Her Majesty v. Florness 2005 SKQB 517 and R. v. Kand & Shin 2010 BCPC 121 . [ 22 ] Firstly, he argues that given the apparent consequences of a conviction of biting, I should acquit Mr. Namura. That consequence he says is that Chloe will be designated a vicious dog under another provision of the bylaw. Such a designation imposes a number of onerous restrictions on the dog.

I do not see how the clear wording of one law can be disregarded because of the consequences under another law after conviction. To do so, in my opinion, would be allowing the tail (dangerous dog designation) to wag the dog (barring a person from allowing a dog to attack and bite another person). [ 23 ] Secondly, he argues that the dangerous dog designation is ultra vires on several grounds. In my opinion, that is not a decision for me to make as that issue is not directly before me. That issue must be challenged separately on its own merits.

It is that issue that Lee , Florness and Kand & Shin addressed and do not decide how a biting offence law must be interpreted. __________________________________________ H. W. Gordon Judicial Justice