City of Vancouver v. West Date:, 2014 BCPC 250

Citation: City of Vancouver v. West Date: 20140826 2014 BCPC 0250 File No: 34068 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA CITY OF VANCOUVER v. RALPH WEST REASONS FOR JUDGMENT OF JUDICIAL JUSTICE G. HAYES Appearing for City of Vancouver : A. Kong Appearing for Ralph West : R. West Place of Hearing: Vancouver , B.C. Date of Hearing: June 23, 2014

Date of Judgment: August 26, 2014 Preliminary Matter - Offer to Recuse [ 1 ] The charges before the court related to allegations of dog attack(

s) involving Staffordshire terriers, commonly described by the generic label of “pitbulls”. Given that I am the “keeper” of such a dog, which had previously been involved in an aggressive incident; I advised the parties of this fact and offered to recuse myself if either party so requested. Both parties declined my offer. Background [ 2 ] On May 14, 2013, two dogs (Stella and Primo) belonging to Mr. West escaped from his van, and attacked a dog (Griffin) belonging to Ms. Rooney. The incident took place in the secure parking garage of the complex where they both reside.

Griffin sustained minor injuries requiring veterinary attention. Mr. West states that he was attacked by Griffin, sustaining an injury to his hand. Charges [ 3 ] The City seeks findings of guilt on two counts of “dog at large” and two counts of “dog off leash”. The City also seeks a finding that Stella attacked Griffin without provocation and as a result should be declared an “aggressive dog”.

Definitions and Offence Sections of Animal Control By-law No. 9150 “aggressive dog” means: (

a) a dog with a known propensity, tendency, or disposition to attack without provocation other domestic animals or human beings, or (

b) a dog which has bitten another domestic animal or human being without provocation; “dog” means an animal of the canine species regardless of age or sex; “keep” means to own, possess, or harbour a dog, cat, or other animal; “run at large”, with reference to a dog, means: (

a) being elsewhere than on the property of the person who keeps the dog, or of a person who has care, custody or control of the dog, and not being under the immediate charge and control of a responsible person, or (

b) being on a bathing beach or in the water adjacent to a bathing beach whether under the immediate charge and control of a responsible person or not.

SECTION 4 CONTROL OF DOGS No running at large 4.1 A person who keeps a dog must not permit, suffer, or allow the dog to run at large. Leashing dogs 4.2 A person who keeps a dog must not permit, suffer, or allow the dog to be on a street or other public place unless the dog is under the immediate charge and control of a competent person by means of a leash that is not more than 2.5 m long or another by-law allows the dog to be off-leash under certain circumstances.

Biting or attacking persons or domestic animals 4.14 A person who keeps a dog must not permit, suffer, or allow the dog to bite, attack or injure a person or domestic animal. Agreed Facts [ 4 ] Both Mr. West and Ms. Rooney are the respective owners of the three dogs.

[5] All three dogs were at some point during the event, “off leash” and “at large” [6] Griffin sustained an injury requiring veterinary care (exhibit # 4 - invoice) [7] Mr. West sustained an injury to his hand resulting in some bleeding [8] Mr. West initially agreed to pay the vet bill for Griffin and issued a cheque to Ms. Rooney in the full amount of the invoice,which he subsequently place a “hold” on through his bank (exhibit # 5) Issues to be addressed 1. Is the secure parking garage a “public place” where the by-law would apply? 2. Aside from any defence of “due diligence” available to Mr.

West in regard to his dogs being “at large” and “off leash”, is there anyevidence of “provocation” as set out in the definition section; which might excuse the aggressive behavior of Stella and Primo? Is the secure parking garage a “public place”? [9] Before proceeding with a determination of the bylaw charges it is first necessary to determine whether or not the City ofVancouver’s’ Dog Control Bylaw is enforceable at this location. It is a secure parking area for the complex to which all residents havekey access but the general public does not.

The City advised the court that there are no B.C. cases on this point, and invited the court toconsider the following analysis from R. v. Tegstrom [1970] SKQB, 583: 10 ... To constitute a “public place” does not, in my view, require that all segments of the public have a right of access thereto. The word“public” is capable of being broken down into groups or divisions, some examples of which immediately come to mind, being the“buying public”, the “book-reading public”, the “travelling public” and, without attempting to be facetious, the “drinking public”.

Manygroups that can be identified by habits or pursuits, or other things that distinguish them, are often described as “public”, the onlyqualifications appearing to be that the number constituting the group is substantial and that all possessing the same common interest areincluded.

It follows that a segment of the public interested in partaking of alcoholic beverages may logically be described as “public”,even though certain portions of the public at large may be excluded either by choice or otherwise. [10] Despite the very limited number of persons having access to this secure parking area, I would adopt the above analysis andmake a finding that the location is a “public place” for the purposes of bylaw enforcement. Evidence of Ms. Rooney [11] She escorted “Griffin” to her vehicle in the parking area but before she could place the dog in her car she had to movesomething off the back seat.

At this time, Mr. West left his van located about six parking stalls away and came over towards her vehicle. Griffin is familiar with Mr. West and went behind Ms. Rooney’s vehicle to greet him. As Mr. West bent down to pat Griffin, his owndogs escaped from his van and charged. The dog “Stella” grabbed Griffin by the neck and would not release, despite having her harnessforcefully pulled on and being struck in the head. Mr. West went so far as to insert his fingers between Stella’s jaws in an effort to gether to release Griffin, and was bitten. [12] When the dogs were finally separated, Ms.

Rooney took her dog to a veterinarian for treatment and delivered the invoice for$157.00 to Mr. West. The next morning she found a bag of doggie treats at her door with a note which read “Sorry Griffin”, as well as acheque for the full amount of the invoice and a note which read “Sorry Theresa”. The memo line at the bottom of the face of the chequeread “Paid in full for the Griffin incident, May 14, 2013.” [13] Mr. West subsequently put a “hold” on the cheque when he became aware that Ms. Rooney had made a compliant about hisdogs. [14] In cross-examination, the court granted Mr.

West some leeway due to his lack of legal training. Most of this portion of the trialcentered on efforts to characterize the incident as a whole and the injuries to Griffin as trivial, complaint about Ms. Rooney havingbreached their “contract” by involving bylaw enforcement in the matter, and generally trying to lead evidence of his version of the eventsand other unproven statements of fact. [15] Ms. Rooney did agree with Mr. West that the attack was not a “mauling”; however the significance of this fact is not relevant inthe final analysis, given that it is an agreed fact that Mr. West’s dog bit and injured Ms.

Rooney’s dog. Evidence of Mr. West [16] Regarding the date in question he said the following: “I had taken my dogs down through the building on leash and because of the demands of Animal Control... demands that, at least one ofthem, it was Primo I believe, was supposed to wear a muzzle, he was muzzled and both were leashed. Put them in the van, took theirgear off, … and started to close the door.” [Transcript, lines 27-34] [17] Just as the door was nearly closed, Mr. West felt something hitting his left hand and looked around to find Griffin standing nearhim.

He then recalls making some sort of surprised or startled expression “and that provoked my dogs “, who jumped out of the van and

chased Griffin back to Ms. Rooney’s vehicle where Stella “ grabbed Griffin by the neck and held him down” . [ 18 ] Mr. West went after his dogs, at which point he noticed that his hand was bleeding when he grabbed Stella by her harness. Once the two dogs were finally separated he ordered Stella and Primo back to the van which they did immediately as “ They’re very obedient dogs ”. [ 19 ] Mr. West stated that Stella injured herself when jumping out of the van, causing him to pay $25.00 for a consultation with a veterinarian.

No invoice was produced, nor was any relevance established to the fact of this post incident injury. [ 20 ] He also stated that his dogs have never been aggressive towards other dogs and that the entire matter “was a tempest in a teacup ”. [ 21 ] He closed out his evidence with a reference to prior legal action regarding his dogs and the fact that he now has a court order which allows him to not have the dogs muzzled. No order was produced, nor did the City explore this matter in cross examination. Cross-examination of Mr. West [ 22 ] In response to questions put to him by the City, I found Mr.

West to be evasive and engaged in constant minimization of the scope of the incident with Griffin, as well as other incidents involving complaints about his dogs’ aggressive behavior. Mr. West would not even acknowledge that complaints had been made over the years, only that he had had “discussions” with Animal Control officers about his dogs. He did concede that he had received correspondence from the City of Vancouver in April 2013 which advised him that his dog “Primo” was now deemed to be an “aggressive dog” and must be muzzled when in a public place. [ 23 ] Mr.

West agreed that both of his dogs were “off” leash after they escaped from his van, but that this escape was due to his being interrupted in closing the van door by the attack by Ms. Rooney’s dog Griffin. This attack not only caused his hand to bleed, but constituted a “provocation” that justified the behavior of his dogs. He later referred to this attack as being an accident on Griffin’s part: “…the only reason they came out is because as I closed the door I was attacked and injured [by] Griffin.

Whether intentionally or accidentally, I have no idea, but that provoked my dogs from jumping out like any dog would do as a natural instinct” [Transcript page 29, lines 32 -37] “Maybe he, in his joyful mood, if that is what he was that day, he ran up to me and he touched my hand and that made it bleed. Now, whether that was in his mind to grab my hand and kill me or whether he jumped up on me and opened up my skin, I’m not to say because I wasn’t looking.”[Transcript page 30, lines 12 - 20] “… the dog showed up at my hand, injured my hand, either biting or scratching it.

I got startled, backed off to look … saw Griffin, my dogs saw Griffin and considered that an attack, which I think that they are justified to consider that, chased the dog back to her car. Partway over there Primo lost interest, he wandered off a little bit, Stella grabbed the dog by the back of the neck and pushed it down and held it there.” [Transcript page 31, lines 14 - 22] [ 24 ] Once Stella and Griffin were separated, Mr. West stated that he yelled at his dogs and they both immediately returned to his van.

He did not file a complaint regarding the alleged attack by Griffin until after being contacted by Animal Control. [ 25 ] In addition to the repeated “tempest in a teacup” reference, the transcript is replete with examples of the efforts taken by Mr. West to trivialize the incident before the court, as well as several prior complaints registered with the City regarding the very same dogs. “… I call this a minor conflict … a minor conflict that likely happens a thousand times every day where dogs have a little snarling thing. It’s minor, five minutes, a five minute cleaning of a puncture wound.

No stiches, no nothing. That is not a mauling.” [Transcript page 33, lines 32 -37] “If she had not made a complaint, there would be no defence because there is no case. You can’t … you can’t have a defence against a non-existent case. No. It is basically a very straightforward, simple case blown out of all proportions” [Transcript page 38, lines 24 - 29] [ 26 ] On being questioned about an attack by his dogs on two children in April, 2006, Mr. West deflects some of the blame onto the City in his reply: Yeah, I … I recall that incident … if that’s the incident. I mean, now we are talking eight years ago.

And I imagine that relates to an incident in an off leash area, somewhere at the Kitsilano area, where for some reason or another, the City decides to make a beachfront off leash area, but also encourages people to go and have barbeques, etcetera, and some days they are swimming there” [Transcript page 39, lines 24 - 32] Submissions - City of Vancouver [ 27 ] Briefly put, the City suggests that Ms. Rooney’s version of the events is more consistent with the facts of the case and has held up under cross examination.

There is also no benefit to her, to not be as truthful as possible in her recollection of the events from May, 2013. [ 28 ] Mr. West’s evidence, on the other hand, has been inconsistent to the point where it lacks credibility. He is also motivated to

portray the events in as favourable a light as possible given the potential outcome of a finding that Stella may be deemed to be an “aggressive” dog. Submissions - Mr. West [ 29 ] Despite initially taking responsibility for the incident, Mr. West asks the court accept that Ms. Rooney’s dog came over to his van and either bit or scratched his hand (he wasn’t looking), interrupting him while he was in the process of closing the van door to secure his dogs.

This action on the part of Griffin should be interpreted as a “provocation” which justified his dogs in leaping from the van before he could close the door and “protecting” Mr. West from this attack by chasing Griffin back towards Ms. Rooney’s vehicle. [ 30 ] Mr. West asked the court to consider how his dogs would be able to protect themselves from attacks by other dogs, if both were required to be muzzled. Analysis [ 31 ] Both witnesses in this proceeding relied solely on their memories of the events, no contemporaneous notes were produced with the exception of a copy of the cheque which Mr.

West had provided to Ms. Rooney the day after the allegations arose. The very fact that Mr. West drafted the cheque as “ payment in full for the Griffin incident ”, coupled with a brief written apology to both Griffin and Ms. Rooney, weighs heavily against him. [ 32 ] If I accept that Mr. West’s version of events could reasonably be true, even if Mr. West is mistaken in his recollection; then I must acquit on all charges. However, I do not accept Mr.

West’s version of the events. [ 33 ] He has told the court that when he ordered his dogs to go back to the van that they did so immediately because “ they are very obedient dogs ”. Although the city did not put the question to Mr. West in cross- examination, I will infer from his statement, that if Stella and Primo chased Griffin for any distance from the van (up to six parking stalls), that Mr. West had every opportunity to call off his “ very obedient dogs ” and avoid the incident in its entirety. This would seem to be a natural and immediate action on the part of Mr.

West, as an experienced dog owner; had the events unfolded as he now recalls. [ 34 ] As the City has pointed out, Mr. West has a great deal at stake in the outcome of these proceedings. Mr. West’s constant trivialization of the incident and the nature of the injuries to Griffin, refusal to acknowledge that there had been prior (though unproven) complaints regarding the aggressive nature of his dogs, and his efforts to deflect responsibility/fault in relation to these incidents; all gives me reason to doubt the credibility of his recollection of the events.

Findings [ 35 ] Findings of guilt are made on counts 1 through 5, and the dog “Stella” is deemed to be an “aggressive dog” [ 36 ] I will now hear submissions on penalties from the parties __________________________ G. Hayes, Judicial Justice