R. v. Lam, 2022 BCPC 135

Citation: R. v. Lam 2022 BCPC 135 Date: 20220628 File No: 37652 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (TRAFFIC/BY-LAW) REGINA v. KEVIN LAM REASONS FOR JUDGMENT OF THE JUDICIAL JUSTICE Z. MAKHDOOM Counsel for the Crown: B. Howieson and R. LeBlanc Appearing for the Disputant: R. Breder Place of Hearing: Vancouver , B.C. Dates of Hearing: May 26 and December 13, 2021 Date of Judgment: Date of Judgment:

x INTRODUCTION [ 1 ] The disputant, Mr. Kevin Lam, is facing two charges laid by the City of Vancouver (the City) pursuant to its Animal Control Bylaw 9150 (the Bylaw) for failing to hold a valid licence with respect to his dog, Rousey and for permitting, suffering or allowing the said dog to bite, attack or injure a person. At trial, the City was represented by Mr. Howieson while the accused was represented by Ms. Breder. BACKGROUND [ 2 ] Mr. Lam, a nail salon manager, resides in the City and is the registered owner of a female Staffordshire terrier mix dog, named “Rousey”. [ 3 ] Ms.

Sarah Matthee is the mother of then 14 months male child, named Grayson. On the material day and time when the complaint arose, Ms. Matthee, accompanied by her friend Ms. Stephanie Albrecht were attending the New Brighton Park (hereinafter the Park) in the City, to play with Grayson and Ms. Albrecht’s similarly aged toddler daughter, Elliot. [ 4 ] At the same time, Mr. Lam and one of his close friends, Mr. Isaac, were also in the Park, playing with their young dogs respectively, Rowsy aka Rowsi and Frenchie, a French bulldog. Both dogs had brown as the dominant colour of their coats.

However, Rowsy’s coat was darker brown compared to Frenchie’s. CHARGES Count 1: On or about June 14, 2020, did keep a dog, a female pit bull terrier or pit bull terrier cross dog called “Rousey”, at New Brighton Park, Vancouver, BC, without holding a valid license with respect to said dog, contrary to the form of the enactment in such case made and provided.

Section 3.1 By-law 9150. Count 3: On or about June 14, 2020, being the keeper of a dog, a female pit bull terrier or pit bull terrier cross dog called “Rousey”, in the area of New Brighton Park, Vancouver, British Columbia, did permit, suffer or allow the said dog to bite, attack or injure a person or domestic animal, contrary to the form of the enactment in such case made and provided.

Section 4.14 By-law 9150 [ 5 ] Mr. Lam was also charged for breaching s.4.3 of By-law 9150, for the offence of failing to muzzle his dog in order to prevent it from biting another human or animal. However, that charge was withdrawn by Mr. Howieson on 26 May 2021. FACTS The following facts are not in dispute: [ 6 ] Mr. Lam, who resides at 3679 Vanness Avenue, in the City of Vancouver, is the owner of Rousey. As her canine-luck has it, the dog suffers from being chronically misidentified or mischaracterised respecting her name or her breed.

During the course of the hearing, I heard several spelling variants of name Rowsy (consequently, there may be several spellings of her name even in these brief reasons for judgment). It’s a breed variously identified as Staffordshire Cross or Staffordshire terrier or Labrador or pit bull terrier. Unlike most other “dog cases”, where dog pictures are proudly shared by their adoring owners or, dutifully, by the City, I was not shown any mug-shot of Rowsi.

Although I heard a lot about her character and demeanour, her appearance remained largely a mystery! [ 7 ] According to the records kept by the City, Rowsi, is a female of “unknown breed mix” (see Exhibit 2). She was licensed to Mr. Lam on 22 of October 2020. On the material day of 14 June 2020, Rowsi was not licensed. [ 8 ] Rowsi has been living under the parental care of Mr. Lam since he acquired her from a breeder in Ontario in April of 2020. At the time, she was then about 2.5 months old. Mr.

Lam reports Rowsi as a playful young energetic dog, who has been trained by him and has been coexisting peacefully and amiably with Mr. Lam’s 86 years old grandma and his two little, 4 and 6 years old, cousins. Prior to his tryst with Ms. Matthee and her son Grayson, Mr. Lam had not heard of any aggression attributed to Rowsi. [ 9 ] In his testimony, Mr. Lam expressed his satisfaction at his ability to provide obedience training to Rowsi. He described Rowsi as an energetic puppy, with dark brown coat, legs longer than those of his buddy Isaac’s French bulldog, and weighing about 22 pounds.

CROWN EVIDENCE [ 10 ] The Crown presented three witnesses: Animal Control Officer David Brown, Ms. Sarah Matthee and Ms. Stephanie Albrecht, moms of Grayson and Elliott respectively. [ 11 ] On 14 of June 2020, Matthee and Albrecht were attending the New Brighton Park. Their toddlers were born just few days apart from one another and they often hung out together, their blankets spread over the grassy ground. [ 12 ] Not very far from where these two mothers were tending to their toddlers, a girl and a boy, were two very young dogs frolicking about with their owners, Lam and Isaac.

Upon noticing two young children, the dogs bolted towards them. Both mothers yelled to have their owners put these dogs on leash. New Brighton Park was an on-leash park. That is, all dogs must remain in care and control of a “… competent person by means of a leash that is not more than 2.5 m long…” (s.4.2, The City of Vancouver Animal Control By-Law number 9150). The dog with darker shade of brown coat, Rowsi indeed, collided with Grayson, knocking him over, and then “attacking” his face. Matthee grabbed Rowsi and threw him away from Grayson. Lam and Isaac attended and put their dogs on leash.

Matthee demanded to see Lam’s identification. He refused to share his coordinates with her. Police were called in. After speaking with both parties, the police officers left the scene without laying any charges on anyone. Animal control officer Brown, attended subsequently. He

received written statements from Lam and Matthee that were admitted as Exhibits 1 and 4. [13] Lam’s written statement: straight forward denial of his dog attacking or injuring Grayson. He admitted that at the time he did notknow that the Park was not an off-leash park. [14] Mathee’s written statement: She spotted two dogs playing some 30 feet away from where she was with her son, a friend and herdaughter. Upon noticing two dogs coming towards her and their children, she and Albrecht “yelled” to the keepers of those dogs to leashtheir dogs.

And then Grayson gets knocked over, the dog, “…began attacking and biting at his face” (Exhibit 4). She noticed two “smallteeth marks on his cheek and some swelling around the eye.” (ibid.) Upon arrival of Matthee’s husband from Langley, they attended BCChildren’s Hospital. Exhibit 5 is “Emergency Department Patient Record”. [15] The “Focused Assessment”

section of the BC Children’s Hospital Emergency Department Patient Record reads: “No visibleblood from cheek. Actively running about TW. 2 tiny spots where dog may have bit child. Smiling and actively running about TW…Novisible blood from R cheek spots”. [16] ACO Brown, after interviewing both parties decided to recommend charges. On 13 of July 2020, the Information was sworn andcharges laid. DEFENCE EVIDENCE [17] Only one witness appeared for the Defence. Isaac, Lam’s accomplice and owner of French Bull-dog, had passed later that year,consequently Lam was the sole defence witness.

He made a written statement and testified. In brief, he maintained that he did not seeRousy attacking Grayson. Both dogs were focused on their play, busy with one another. Isaac would throw a ball and the dogs wouldfetch it. He did have conversation with Matthee who demanded to see his identification. Instead of giving his information to Matthee, hewaited until police arrived and shared his coordinates with them. Lam denied seeing Rousy hit the little boy. He opined that the little boywas learning to walk hence unsteady, fell over.

He appeared to be a thoughtful young man who cared for his family and loved his dog. REGULATORY CONTEXT [18] The City of Vancouver is authorized pursuant to the Vancouver Charter S.B.C. 1953, c.55, to enact bylaws regulating civicconduct of individuals and corporations within its jurisdiction, by way of enforcing a well-crafted regulatory regime to ensure protectionof the public as well as to abate nuisances in the city. These powers include establishing a pound as well as licence and regulate keepingof dogs and other animals.

Bylaw 9150 3.1 A person must not keep a dog that is older than three months unless such person has acquired an annual licence for the dog, andhas paid the annual licence fee. 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. CASES CONSIDERED AND/OR APPLIED R. v. W.(D), (SCC), [1991] 1 S.C.R. 742 (SCC) R. V. Moser, 2011 BCPC 22 , 2011 BCPC. 22 Prince George (City) v.

Douglas Halifax, 2010 BCPC 91 ANALYSIS ISSUE 1: Was the little guy, Grayson, attacked, bitten or injured by a 2.5 months old puppy and has the City proven it beyond areasonable doubt? [19] Subsequent to the incident with Rowsy at the Park, there was commotion. Of course, there were good enough reasons. When wesee the photographs of Staffordshire-Terrier dogs, they bear stark resemblance to Pit Bull dogs. A breed that does not enjoy great deal ofpublic affection and trust.

A high-energy rambunctious dog, looking like a pit bull, knocks over an unsteady toddler and, allegedly, setupon that toddler placing her open mouth on the toddler’s face. Or so it seemed to his mother. Such a scenario would likely terrifyanyone let alone the mother of that little guy. Matthee is a thoughtful caring first time mother. Even prior to the contact between the dogand Grayson, she was concerned. While making loud entreaties to Lam and Isaac to leash their dogs, she was reminding them that this anon-leash park. Her fears became real when Grayson fell over.

She admitted being very upset, almost hysterical. Grayson was cryinginconsolably. In the meanwhile, the dogs had also commandeered little Elliott’s doll. [20] When police attended, things began to calm down. An ambulance was offered and refused by Matthee, who, by that time, hadcontacted Grayson’s dad, who works in Langley and was already on his way to see his family. [21] The family subsequently found its way to the BC Children’s Hospital, where after several hours of wait, they were attended by aphysician. Grayson was thoroughly examined. The aforementioned “emergency department patient record” was created.

No injury wasdiscerned. No bruises were found or scratches or blood. Little Grayson was observed “smiling and actively running about”. [22] I understand Matthee’s reaction to what had transpired at the Park. She was then a first time mother. She obviously cares a greatdeal about her offspring.

Accompanied by a friend, who has a 14 month old daughter, Matthee came all the way from her home aroundthe Commercial Drive to the New Brighton Park which is really a stone’s throw away from the Second Narrows Bridge so that the childwould play with another child in an open park area during those hugely restrictive times of a global pandemic. I heard her evidence,riddled with inconsistencies, with great deal of understanding of her circumstances. However, irrespective of what angle one is

approaching from, inconsistencies would look just that: inconsistencies. As such, despite my tremendous store of respect andconsideration for Matthee the mother, I must attach somewhat lower weight to her story. In this regard, I am following the HonourableProvincial Court Judge Brecknell of this Court. He states: “Given her surprise and fright and based on all of the evidence, I conclude thatin her agitated state Ms. Thibault overestimated the ferocity of the Dog’s demeanour towards her.” [Prince George (City) v. Halifax,2010 BCPC 91].

Especially saying she saw Rowsy’s teeth biting into Grayson’s cheek, right cheek that is. There is no medical evidenceof that. Grayson was not seen at the Children’s Hospital the next day. He was seen just few hours following the incident at the Park. [23] A protective and hugely caring mother sees a pit-bull type dog rushing towards where her son was then sees her child fall over, adog above him, biting into his cheek was rightfully agitated. However, in that state she may have “seen” what she said she saw.

But evenif I accept that Rowsy did place his teeth of Grayson’s cheek, I would end up admiring the tremendous restraint that Rowsy, a 2.5 monthspuppy demonstrated, by not biting into the flesh. It would no doubt demonstrate in some measure the strength and efficacy of obediencetraining that Lam was affording Rowsy. [24] Taking into account all the evidence before me, I am leaning to accept that no injury was caused to Grayson. Rowsy and hercompanion Frenchie were not interested in playing with the children.

They were quite content playing ball with Lam and Albrecht.Rowsy’s was a rather strident pursuit of a ball that may have landed in the proximity of Grayson. There may have some physical contactbetween Grayson and Rowsy, who fell down, the dog on his top, which mom Matthee promptly picked up and “threw” aside. Theevidence suggests that little Grayson was yet another “innocent bystander”, sadly our region has an abundance of this kind of humans. Hewas not the target but happened to be there. [25] Given the foregoing and applying R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742 (S.C.C.), I do not think the Crownhas proven beyond a reasonable doubt that Rowsy attacked Grayson by setting herself forcefully upon him. As Mr. LeBlanc, the learnedcounsel for the City, had argued that the City is not pursuing the “bite” and “injure” components of the bylaw, but is only interested inpursuing the “attack” component. Since “attack” is not defined in the By-Law, the Merriam-Webster Dictionary, defines it as: “to setupon forcefully”.

The actions of Rowsy and the subsequent medical condition of Grayson show that Rowsy was set upon forcefully toget his ball and not upon Grayson. Little Grayson just happened to be there. [26] This being a strict liability matter, arguably the fall of Grayson may be the proof of actus reus. The issue would then be: has theCrown proven beyond the reasonable doubt that Rowsy was set upon forcefully on Grayson.

The evidence does not support thatcontention. [27] Since the “dog licence” respecting Rowsy was only obtained on the 22 of October 2020, Rowsy’s age was significantly over theage of three months when obligation triggers for acquiring a dog licence after payment of the annual fee. Hence I find, Mr. Lam guilty onCount 1. [28] Upon the thoughtful invitation by Mr. LeBlanc, I am entering an acquittal for Count 3. _____________________ Zahid Makhdoom Judicial Justice