The Corp. of the District of Saanich v. Miller Date:, 2016 BCPC 262

Citation: The Corp. of the District of Saanich v. Miller Date: 20160621 2016 BCPC 262 File No: 164000-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA THE CORPORATION OF THE DISTRICT OF SAANICH v. INGA LISA MILLER DANIEL WILLIAM MILLER ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L.J. MROZINSKI Counsel for Crown : G. Simair Appearing on her own behalf: L. Miller Appearing on his own behalf: D. Miller Place of Hearing: Victoria , B.C. Dates of Hearing: June 20, 21, 2016

Date of Judgment: June 21, 2016 [1] Mrs. Inga Lisa Miller, also known as Mrs. Lisa Miller, and Daniel William Miller, are charged with four counts of breach ofthe Saanich Noise Suppression Bylaw. [2] Specifically, it is alleged that on April 10, 2014, both Mr. and Mrs. Miller, being the owners of a dog kennel, did unlawfullyharbour or keep a dog or dogs, which made objectionable noises, contrary to s. 5 of the Saanich Noise Suppression Bylaw, 1993, No.7059.

Count 2 alleges that on that same day the Millers kept animals, which caused frequent or loud noises thereby disturbing theenjoyment by their neighbours of neighbouring property contrary to s. 4 of that bylaw. The charges are identical with respect to Counts 3and 4, but relate to the date April 20, 2014. Mr. and Mrs. Miller plead not guilty to all these charges. [3] As the charges indicate, the Millers are owners of a kennel known as “A Pawsh Oasis” located at 280 Hector Road in Saanich,British Columbia.

That property, as is evident on the photograph marked as Exhibit 3 in this proceeding, is a large rural acreage. Thekennel was licenced by the District of Saanich in December 2010, and clearly, that licence has been renewed annually since that time. [4] Among other things, the kennel runs on a particular philosophy that Mrs. Miller spoke of in this trial: that involves allowing thedogs to congregate in packs. Mrs. Miller is of the view that this is natural for dogs.

Most dogs at the kennel are not individuallykennelled or crated except in accordance with the preference of their owners, but generally, as I say, Mrs. Miller's philosophy is to let thedogs mingle in groups. [5] By all accounts, the kennel is popular. It seems to be an ongoing successful business in which the Millers have certainlyinvested a good deal of money and time and emotion as well. [6] The Millers have a number of neighbours, including Mr. and Mrs. MacPhee. The McPhee’s reside at 290 Hector Road. AsExhibit 3 demonstrates, the McPhee’s property abuts the south end of the Millers' property.

The MacPhees have, among other things, ahorse paddock and corral which is located near the south property line of the Millers' property. [7] In this particular case the MacPhees' ideal life in a residence on a large acreage where they enjoy country living amidst theirhorses and pets, and the Millers' dream of operating a dog kennel in a rural acreage have collided with, I think, fairly unfortunate results.

That is as a function of the operation of the Millers' kennel and arising particularly out of the question of the noise that emanates fromthe kennel from the dogs. [8] This is the second time the Millers have been in this court on nearly identical charges arising out of the Saanich Noise Bylaw. In both instances, it is Mr. and Mrs. MacPhee who have brought the complaints that have given rise to the charges. There have beenother complaints.

Officers have been to the properties with respect to complaints about dogs barking, but this really is ultimately acontest between the MacPhees and the Millers. [9] This particular case involves charges that on April the 10th and April the 20th of 2014, the dogs in the kennel were conductingthemselves in such a way that, firstly, the Millers were in breach of s. 5(

b) of the bylaw which provides that: It shall be unlawful for any person to harbour or keep a dog which shall make an objectionable noise by barking, howling or creating anykind of sound continually or sporadically or erratically for any period of time in excess of ten minutes. [10]

Section 5(

a) does provide that in the opinion of the Saanich Council: The sound made by a dog barking, howling or creating any kind of sound continually or sporadically or erratically for any period of timein excess of ten minutes is ... an objectionable noise. [11] As I say, dogs have been singled out by the District of Saanich in this particular bylaw, this Noise Suppression Bylaw, asmaking particularly objectionable sounds.

Section 4 is also at issue in this particular case, and s. 4 provides that: No person shall harbour or keep any animal or bird which by causing frequent or loud noise disturbs the quiet, peace, rest, enjoyment,comfort or convenience of the neighbourhood or of persons at or near the source of such noise or sound. [12]

Section 5 is fairly straightforward. It is breached in the event that there is evidence established, beyond a reasonable doubt, thata dog is making an objectionable noise as defined for a period in excess of 10 minutes. The loudness, the decibel level of the noise is notsomething that is a function of s. 5(b). It is certainly a function of s. 4, which does refer to specifically to the loud noise disturbing theneighbourhood. So that is the distinction between those two sections and those two, both sections, are at issue in this particular case. [13] These are what the law refers to as strict liability offences.

I know that that has been discussed in the previous litigation. Thetest for strict liability offences is set out at para 14 of the decision of Judge Palmer in Corporation of Saanich v. Inga Lisa Miller, et al,February 10, 2015, unreported, Victoria Registry No’s 161007-1 and 161252-1. There, Judge Palmer quotes from the judgment ofJustice Dickson in R. v. Sault St.

Marie, (SCC), [1978] 2 S.C.R. 1299, at page 1312: Public welfare offences involve a shift of emphasis from the protection of individual interests to the protection of public and socialinterests. [14] The law provides that the defendant is allowed to “exculpate" him or herself, by proving affirmatively on the balance ofprobabilities, that he or she was not negligent. To do so, the defendant must demonstrate that he or she took all reasonable steps andexercised reasonable care to avoid breaching the particular statute.

So it is a negligence analysis at the end of the day provable on abalance of probabilities once the Crown has proven the actus reus beyond a reasonable doubt.

[ 15 ] I am going to start with the actus reus in this particular case and you may remember that language from the last decision. It essentially means that the Crown must demonstrate beyond a reasonable doubt that there was a violation of these sections of the Noise Suppression Bylaw. It does not, in these particular cases, have to prove mens rea beyond a reasonable doubt. [ 16 ] The actus reus in this case is, the Crown submits, made out on the evidence of Mr. and Mrs. MacPhee, the video evidence, and the evidence of Mr.

Derek Reese who is a pound inspector with the Saanich Police Department. [ 17 ] I understand the argument of the defendants to be that I should not believe the evidence of the MacPhees. [ 18 ] The Crown introduced a videotape taken on April 10, which is clear and shows a dog outside of the back door of the kennel barking for some four minutes and then being brought inside. Barking is heard on the video once the dog is inside past the requisite 10 minutes as set out in the bylaws.

The defendants submit this evidence is not to be believed in the sense that the sound of the dog inside the kennel has either been amplified all out of proportion, or manufactured by the MacPhees. [ 19 ] A second video taken on April 20 was entered into evidence and everyone acknowledges that the picture is not clear. Much of the video is grainy. The defendants submit the video does not establish beyond a reasonable doubt that the noise that appears to be coming from the dogs, which are, I find to be very visible on the back stairs of the kennel, were coming from those dogs.

The defendants submit the sound may have been coming from some other source and, even if that is not the case, that the sound of the dogs is quite amplified and/or again manufactured by the MacPhees. [ 20 ] The MacPhees did give evidence in this trial and I certainly listened to their evidence closely. For the record, I am going to note that Mr. and Mrs. MacPhee are well past middle age. I believe they are both over 70 years of age. They are nonetheless, a feisty and determined couple and they have certainly not let up on the Millers in terms of the noise that is emanating from the Millers' property.

The MacPhees strongly hold the view that the noise is interfering with their enjoyment of their property. Mrs. MacPhee testified that essentially barking noises and the noises from the kennel have been a problem ever since the kennel opened. [ 21 ] I know from the evidence that Mrs. MacPhee did call your residence on one occasion many years ago and spoke to Mr. Miller. Mr. Miller recommended that she speak to you and, as I understand it from all of the evidence, that has really been the sum total of the direct communication between the parties which is, of course, unfortunate.

I know also that Judge Palmer tried to address that, but to no avail. [ 22 ] In this particular instance, Mrs. MacPhee testified that on April 20, as an example, she and her husband came home and noted what she testified to as being an excessive amount of barking coming from the kennels. As a consequence, she set up her camera by her house and she was able to pinpoint the location of the camera on the diagram marked as Exhibit 3. Mr. MacPhee, who was not present for that testimony, testified in his own right and, in fact, corroborated that location. [ 23 ] Mrs.

MacPhee estimated that that was approximately 250 feet from the kennel. It is an estimate. I was never really clear how far away it was, but it is a distance. There is no doubt about it. You can see that on the diagram, or on the map, I should say, marked as Exhibit 3. [ 24 ] With respect to April 10, Mrs. MacPhee testified that certainly there was barking again. She set up her video camera and, in that video recording, we can see a dog barking outside of the kennels. [ 25 ] Mrs. MacPhee also testified that, frankly, throughout the month of April 2014, she heard barking on a daily basis.

She estimated that it started from some time between 7:00 and 7:30 in the morning and might continue to noon, and then might start up again at two o'clock and continue on to 5:00 p.m. or later. [ 26 ] Mr. Derek Reese also testified. He testified that he has heard the dogs barking from your property while he is on the MacPhees' property. He testified that he could hear the dogs barking from your property from the inside of the MacPhees' residence.

He testified that he went to your property at least seven times to deal with complaints for dog barking, and he testified that the barking on the video is approximate to what he would have heard at the MacPhees' residence. [ 27 ] The MacPhees essentially summarized their case as being that the noise from the dogs since the inception of the kennel has basically destroyed their enjoyment of their property. Mr. MacPhee testified, and you heard him, that he found it very stressful.

As a function of the noise, the MacPhees find they are unable to socialize on their property, or do the normal things that people do on their property, and that on April 10 and 20, 2014, the noise was loud enough to cause them to bring out their video recording equipment. [ 28 ] The MacPhees' testimony, certainly the viva voce testimony, about their experiences and the barking coming from your property is corroborated, if I can put it that way, by the video evidence. I have watched the videos and this is what I took from the videos. Firstly, and this is not disputed, you can hear barking in the video.

It is sometimes incessant and it is certainly goes on for more than 10 minutes. [ 29 ] I do not have any doubt that the barking is coming from the dogs. Certainly, that is clear on the April 20 video, and I do not have any doubt that the barking that you hear on the April 10 video is coming from the dog that is outside and then there is barking coming from the inside of the kennel.

I do not know which dog it is coming from, but you can hear the barking. [ 30 ] So to find that the MacPhees are lying about this, or that they manufactured this evidence, I would have to, first of all, doubt that one could hear barking from your property on the MacPhees' property and I have no doubt that you can. I am satisfied by the evidence of Mr. Reese, if no one else, that that is certainly possible. [ 31 ] The history of this matter indicates to me quite clearly that from time to time there is barking coming from those kennels as you testified yourself Mrs.

Miller, and that the barking can be heard on the MacPhees' property. [ 32 ] The videos themselves appear normal. Certainly the April 20 video is, as you say, grainy, but I have no basis to conclude that

those videos were doctored or that Mr. and Mrs. MacPhee somehow managed to manufacture the sound on those videos so as to, I think as Mrs. Miller put it, do what they could to shut down the kennel operation. [ 33 ] To find that the videos have been tampered with constitutes speculation at best, but in any event, I believe the MacPhees. I do not believe for one minute that the MacPhees are lying about their experience, or that they are lying about what they have seen and heard.

I have seen the dogs clearly in both videos and, as I say, the history of this case, all of the evidence in this case, leaves me with no reasonable doubt that what the MacPhees say occurred on April 10 and 20, 2014, and what they documented on those days is what occurred. That is to say that the dogs were barking in the kennel and outside of the kennel and, as the videos indicate quite clearly, for more than 10 minutes. [ 34 ] So in terms of the actus reus of this particular case, particularly with respect to s. 5(

b) which, as I have indicated, provides that it is unlawful for a person to harbour or keep a dog which makes this objectionable noise by barking more than 10 minutes, that has been made out. The dogs were in your kennel. It is a property that you own.

No one else is responsible for that dog or those dogs or that noise. [ 35 ] As I say, the sound of dogs barking and other sounds emanating from dogs has been set out for special attention by the District of Saanich, and the bylaw, so long as it remains in force, prohibits any person that keeps such an animal or animals from barking for 10 minutes or more. [ 36 ] It is not continuous in this case. It is, in my view, I think, clearly sporadic. I am not entirely certain what is meant by "erratic", but it is certainly sporadic and it certainly occurs for a period of time in excess of 10 minutes.

So the offence under s. 5(

b) is made out clearly on the evidence. I have no doubt about that. [ 37 ] With respect to count four and the loud noise disturbing the peace, rest, and enjoyment of persons, I find that I struggle with the April 10 video corroborating the evidence of Mr. and Mrs. MacPhee. That did not strike me, at least the noise that I heard in the video, as the kind of noise, the decibel level or the continuous level of the noise that would interfere with a person's comfort and enjoyment of their property. April 20 is a completely different matter. I am convinced that it does, as well as breach 5(

b) of the bylaw. [ 38 ] Having said that I do not find the video of April 10, 2014 convincing in terms of that affecting the MacPhees' enjoyment of their property, I accept their overall evidence that the barking that day and throughout the month of April did interfere with their overall enjoyment. At the end of the day, I am not convicting on the s. 4, in any event. I am going to Kienapple that. [ 39 ] I find it is so clear that the actus reus , at least, on s. 5(

b) is made out that I find I need not go any further. I am just noting this for the record that I do not have any trouble believing, with respect to the April 20 video, that that would interfere with the MacPhees' enjoyment, but as I say, I struggled on the April 10 video. [ 40 ] The actus reus has been made out and that leads us then to the defence of due diligence. I tried as best I could, perhaps not always successfully, but I tried to direct you to that, as well, because that is something that I have to take into consideration.

Again, I know you would have paid close attention to Judge Palmer's reasons and he talked a little bit about due diligence there, as well. [ 41 ] This really is an instance where you as defendants must demonstrate that you have made all reasonable efforts to comply with the bylaw. I am considering specifically the offence under s. 5(

b) which makes it an offence for dogs to bark for more than 10 minutes. I have to ask myself what evidence I have with respect to the steps that were taken in this particular case by both you, Mr. and Mrs. Miller, to prevent a breach of that particular section. [ 42 ] With respect to you, Mr. Miller, you being the holder of the licence, your evidence was very frank. Even though you are the holder of the licence, what you did to ensure that the bylaws were complied with was to rely on Mrs. Miller. So if I were to find that Mrs.

Miller exercised due diligence, you would be all right. [ 43 ] Other than that, you appear to have done very little. Your actions would not necessarily meet the standard of due diligence if Mrs. Miller was found wanting in that regard. You do have an obligation as the holder of that licence and as the "employer" of the individuals working at that business, even though Mrs. Miller is essentially running the day-to-day operations. Authority for that is found in V ancouver (City) v. Access Collateral Pawnbrokers, 2006 BCSC 1514 , at para 30 .

The important point is that in this case, I have to ask whether either or both of you exercised all reasonable care by establishing a proper system to prevent the commission of the offence by taking reasonable steps to ensure the effective operation of the system. [ 44 ] It is a two-part test in the sense in that if you own a business, firstly, you need to demonstrate that you have got a system in place. But even if you have a system in place, you also have to demonstrate that you took steps to ensure that the system was complied with.

That is a very common theme in cases where it is not necessarily one individual that is responsible for ensuring a business or an operation complies with a statute, or a regulation. [ 45 ] So on your part Mr. Miller, the evidence is that you relied on Mrs. Miller and, really, then, it turns on Mrs. Miller's evidence. Mrs. Miller, firstly, you will recall you gave evidence in direct about a number of things that you had done at the kennel to address the dogs barking. You talked about paving the driveway, I think, so that the dogs would not hear the crunching of the gravel as their owners drove in.

That was a great idea. The noise would upset them, obviously, or excite them. You talked about the citronella collars. I think that is something that Mr. Reese mentioned, as well. You talked about the muzzles and you talked about the spray bottles. I think these are all good things, all things that one would expect somebody in the kennel business would do. I think the driveway probably, even, is going above and beyond. [ 46 ] The difficulty, Mrs. Miller, with this, is that it is quite clear that all of this was done even before the litigation before Judge Palmer.

In other words, these were factors that you have indicated to the court that had been done with respect to the 2013 charges. They were not working then and so it does not look as if anything has changed. [ 47 ] More importantly, on April 20, 2014, it is clear from the video that whatever system was in place, nothing was being done. I

mean the dogs were out there and they were barking. You are quite willing to admit that on April 10, 2014, a dog was outside the kennel barking for four minutes at least alone, but when he went inside, you say there is not much you could do. There is no evidence of what efforts were made on April 10 to prevent that dog from continuing to bark, no evidence whatsoever, because I do not think, Mrs. Miller, that you know. So that is the difficulty in this particular case. [ 48 ] I know you have said, "I have made lots of changes. I have made lots of changes.

I am unable to document those," and the onus at this point is on the two of you to demonstrate that you have made reasonable efforts to comply. I have to decide the case on the evidence. I have to find some evidence of due diligence in this particular case with respect to the dates of April the 10th and April the 20th. I have to have something and I have nothing. [ 49 ] So I cannot find that you exercised due diligence in regard to these matters on the dates that are charged. I do not say that you are not a good kennel owner. I think you probably are. I know you love the dogs. I know you care for the dogs.

I know this is your dream. You have got a problem and, among other things, you are not able to articulate what it is that you are doing to deal with that problem. [ 50 ] I want to address a few other argument before I finish because, in some ways, the defence and the case for the District was a little bit like ships passing in the night. I am not sure at the end of the day that you came here, really, to deal with a due diligence defence, and that may have explained the lack of it. [ 51 ] I understand the main complaint to be that you were given a licence by the District of Saanich to run a kennel.

The District knew where your kennel was going to be. It knew it was going to involve dogs. It had to know that dogs would bark. It had to know that having a kennel would involve having dogs on your property that bark, and I believe, Mrs. Miller, your very comment was that common sense has to prevail, and there has to be a recognition that when you licence a business for dogs, you are going to hear barking. When you licence a business for manure, you are going to get smell.

When you licence a business for water, you might get a flood from time to time. [ 52 ] This is why it is so unfortunate that we are here, because these arguments, in all fairness, were raised in the previous litigation and dealt with. Having reviewed Judge Palmer's decision, and I know that you did, as well, these things are addressed by Judge Palmer as follows at para 100: The issue was raised about the propriety of prosecuting this licensed business. This was an issue I wrestled with.

I questioned why Saanich would license and approve a large kennel operation in a semi-rural residential neighbourhood and then proceed to prosecute the owners under this Bylaw , as if barking dogs were an unexpected by-product. The comments of Romilly, J, in Coquitlam (City) v. Crawford et al , 2007 BCSC 146 , paragraph [5] , are pertinent, But in the end, after due consideration, I am not persuaded this is an issue that can be resolved in favour of the Millers.

An approval to operate a kennel is not a license to disturb the neighbourhood, any more than the permission to build a shopping centre grants an exemption to create continuous noise. The business operators must be deemed to know and understand that the permit to operate a business is accompanied by an obligation to operate it lawfully and avoid the creation of a nuisance or disturbance. [ 53 ] I am just going to leave it at that. I mean that was raised then and Judge Palmer dealt with that. That is a fact in law. You have the business licence.

It does not immunize you from complying with bylaws. [ 54 ] Your argument or your beef, really, is with the District of Saanich. It is not with the MacPhees. You say, I think, in your heart of hearts, that the District of Saanich's bylaw is incompatible with the licences that Saanich issues. It is not the responsibility of the MacPhees to bear the burden of the licence that the District has issued.

You have - if you have an issue, and I am not sure you can even take it up with Saanich now, but that is an issue for yourselves and Saanich and it cannot be laid at the feet of the MacPhees who are simple property owners who are entitled to the benefit of the law. [ 55 ] You have also indicated that you questioned whether or not the bylaw applies to your commercial operation. That issue too was adjudicated on by Justice Pearlman in the appeal from Judge Palmer’s decision. In Saanich (District) v.

Miller , 2015 BCSC 2053 , Justice Pearlman held that the bylaw does apply. [ 56 ] I know that you had, in your person or in your possession, an opinion letter which you say was missed in the last litigation. I did not allow that letter in because it was, first, hearsay and, secondly, I did not find it was relevant. [ 57 ] It could only have gone in for two reasons. Firstly, I think you heard Mr. Simair say, you might be arguing something like officially-induced error, that is to say, that you proceeded on the understanding that the agricultural bylaws rather than the Noise Suppression Bylaw applied.

That cannot be the case after the decision of Justice Pearlman. So that is not open to you to argue. So that would be one reason why that letter could go in. [ 58 ] The only other reason that letter could go in would be you would say, "Well, Mr. Justice Pearlman was just wrong and it was not brought to his attention that there are opinions which indicate that, in fact, the agricultural bylaws apply”. If that was the case, the opinion, again, is not relevant. It is of absolutely no value. What someone's view of the law is is not evidence.

If there is a legal argument to be made that the agricultural bylaws are the bylaws that apply, then the argument can be made. In the absence of any legal argument that those are the bylaws that apply, the decision of Justice Pearlman that the Noise Suppression Bylaw applies is binding and that is the bylaw that I am applying in this particular case. [ 59 ] You have also indicated in your arguments that you feel unfairly targeted. It is a form of abuse-of-process argument, again, and that was dealt with in the last case. I know that your view is that the MacPhees are "the squeaky wheel." I know that is what Mr.

Miller was getting at when he was cross-examining Mr. Reese, but as I said to you, the MacPhees are entitled to the benefit of the law and they are entitled to the enforcement of the law. The fact that the MacPhees have dug in and are not going to be deterred from complaining about the noise until they get satisfaction does not change the legal analysis one bit.

[ 60 ] I think Justice -- Judge Palmer, I should say, I know he would have had discussions with you and I am told that he sent people off to try to mediate. I know he would have impressed upon you that, at the end of the day, it would be ideal if, as neighbours, you could get together and work something out and I know you say you have tried. I cannot force the MacPhees to do it, but what the MacPhees have is the benefit of the law. The MacPhees are entitled to the enforcement of the bylaw.

If you cannot comply with the bylaw by simply taking steps to ensure that the dogs do not bark for more than 10 minutes at a time, it is not the fault of the MacPhees. That rests at your feet and that is all I can really say about that. That, in my view, is pure common sense. [ 61 ] So, for these reasons, I am convicting on Counts, on the Information here, 1 and Counts 3 and I am Kienapple 'ing two and four. [ 62 ] MR. SIMAIR: Right, so -- [ 63 ] THE COURT: Okay. [ 64 ] MR. SIMAIR: -- conditional stays on those counts? [ 65 ] THE COURT: Yes. The Honourable Judge L.J. Mrozinski Provincial Court of British Columbia