City of Vancouver v. Reid, 2023 BCPC 204

Citation: City of Vancouver v. Reid 2023 BCPC 204 Date: 20230912 File No: 38439-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (By-law Division) BETWEEN: CITY OF VANCOUVER CLAIMANT AND: ARIELLE REID DEFENDANT REASONS FOR JUDGMENT OF THE JUDICIAL JUSTICE Z. MAKHDOOM Counsel for the Claimant: D. Clements Appearing on their own behalf: A. Reid Place of Hearing: Vancouver , B.C. Dates of Hearing: May 11 and June 13, 2023 Date of Judgment: September 12, 2023

INTRODUCTION [ 1 ] Ms. Arielle Reid (the Disputant), residing at 2711 Trinity Street, Vancouver, BC (hereinafter the Property), is disputing one charge laid by the City of Vancouver (hereinafter the City or the Crown) alleging the two guinea fowl hens licenced to the her are prohibited to harbour in the City pursuant to s. 7.2 of Animal Control By-Law No. 9150 (the Bylaw). The case at bar was heard on 11 May 2023. Given the volume of arguments as well as shortage of court time available, I ordered the transcript and reserved my judgment.

CHRONOLOGY Date Event What Happened? 08 March 2022 ACO Burnham attended residence of Ms. Reid at 2711 Trinity Street, Vancouver Heard, then saw & photographed 2 guinea fowls inside the coop in the backyard. Searched the City database, found 2 “hens” registered to the property with the Disputant’s association. Left his business card. 19 March 2022 Re-attended the Property Birds still there. Left his card with request for someone to call him. Later emailed the Disputant who called. 25 March 2022 Left “Warning Notice” at the Property.

The Disputant advised that she had 14 days to remove the prohibited fowls from the Property. 09 April 2022 Reattended the Property. Fowls still there. Photographed them. Mailed a “notice of bylaw violation” to the Disputant with an option to voluntarily pay $250 and avoid prosecution. 13 September 2022 Information affirmed The Disputant was charged pursuant to s. 7.2, bylaw 9150. 08 November 2022 First appearance Disclosure provided to the Disputant. 10 February 2023 Fix date Hearing scheduled for 11 May 2023. 11 May 2023 Hearing Judgment reserved 29 August 2023 Decision JJ ill, adjourned to September 2023.

LAW [ 2 ] The powers and authorities vested in the Council of the City of Vancouver pursuant to Vancouver Charter SBC 1953, c. 55 , include power to enact and enforce by-laws “respecting impoundment and keeping of animals and keeping of birds within the jurisdiction of the City (s. 324).

Section 324 (

i) reads: The Council may make by-laws providing keeping of birds (

i) For regulating the keeping of domestic poultry, pigeons, and other birds, and for defining areas within which such birds may be kept or within which the keeping of them is prohibited. [ 3 ] Thus enacted and enforced is the Bylaw.

Section 7.2 of the Bylaw reads: A person must not keep in any area, temporarily or permanently, any horses, donkeys, cattle swine, sheep, ducks, geese, turkeys, pheasants, quail, or other poultry or fowl except that this prohibition does not apply to: (

a) keeping, hens, subject to sections 7.15 and 7.16; (

b) areas in which the Zoning and Development By-law allows the keeping of such animals; (

c) licensed pet shops or kennels; (

d) slaughter house; or (

e) the exceptions set out in

section 7.4. EVIDENCE [ 4 ] Mr. Clements, counsel for the City, as such for the Crown, led testimony from one witness, Animal Control Officer Shane Burnham. The Disputant testified. She was the sole witness for the defence. Both parties agree that the Disputant resides at 2711 Trinity Street in the City and that she owns and harbours two guinea fowls. Crown [ 5 ] Responding to a noise complaint made to the City pound, an investigation ensued. Rather than pursue an investigation of that

noise complaint, the City chose to lay the charge for harbouring prohibited bird. Hence, for an investigating officer, there was not muchto ascertain but the presence of the prohibited fowls. Officer Shane Burnham, an Animal Control Officer for the City, attended theDisputant’s residence to investigated the matter.

His initial findings were that a couple of rather chatty guinea fowls lived inside a coop inthe back yard of the Disputant’s home. [6] Failing to meet with the Disputant, the officer initially left his card and then given the usual practice of the City, a 14-daysnotice requiring removal of the prohibited birds was mailed to the Disputant. On 9 April 2022, the officer returned to find both birds stillin their usual coop, chatting.

A “Notice of Bylaw Violation” subsequently mailed to the Disputant, eventually leading to laying ofmaterial charge on 13 September 2022. [7] Given the very simple nature of charge hence reduced burden: all that is to be proven is that two guinea fowls live on theProperty under the Disputant’s control. The Crown’s case therefore consisted of a short testimony of Officer Burnham and twophotographs illustrating that short testimony. Defence [8] The Disputant began her testimony by admitting that she had kept those guinea fowls because her reading of the enactment is atodds with the City’s.

That being the core of her argument I shall return to it later. [9] The material birds were hand raised by the Disputant. Illustrating her familiarity with the rather unique nature of these birds, theDisputant gave evidence of her ancestry being Jamaican where she grew up and where guinea fowls are routinely kept. As a Peace Corpsvolunteer from 2013 to 2015, she lived in Mozambique, a West African nation where guinea fowls are also routinely kept as pets. Shesaid that young guinea fowl chicks are particularly sensitive to damp environs.

They need special care before becoming fully feathered.In the course of hand rearing these birds, they were socialised. Once fully feathered they were moved to live in an outdoor but securecoop. [10] Upon receiving the 14-day warning letter and the subsequent “Notice of Bylaw Violation”, she chose to focus on rehoming herbeloved birds lest these are apprehended and removed by the City pound. As that would be highly stressful for the birds as well for thepersonnel at the pound who may lack sufficient expertise on caring for these exotic creatures.

Currently, the birds reside outside the Citylimits with caring and knowledgeable care providers. [11] Domestication of animals lay at the confluence of human and animal existence. Rearing or raising gallinaceous bird variety ofguinea fowls does not prove their “domestication”, which is an evolutionary process involving an animal’s historic connection withhumans. The Disputant did not domesticate these guinea fowls but raised and socialised them. Endemic to Africa, these birds have beendomesticated in various parts of the world to help protect crops.

Guinea fowls love eating ticks, scare away predators like foxes andsnakes. Farmers love them for that. They perch high and have a tendency to range at greater distances than, say chickens. [12] Guinea hens are poor layers. The Disputant said that in one full year these two birds collectively produced about 200 eggs.Additionally, their meat tastes gamey and tough. Not a viable choice for raising them for eggs or meat.

Although not of any probativevalue, but for intellectual purposes, it would not hurt to know that legend has it that guinea fowl, known by their biological name ofnumida meleagris, were turned to birds when Meleager, king of Calydon, was killed. Artemis, the goddess of the hunt, turned his sistersinto birds who later became guinea fowls. Aristotle gave them the name of “Meleagris”. The Disputant kept them as belovedcompanions, for the pure pleasure of their proximity. Perhaps the same reasons many keep canines or felines, budgies or parrots.

ISSUES, ANALYSIS & FINDINGS [13] At the core of these proceedings is a simple question: Is harbouring guinea fowl hens as a pet within the municipal boundaries ofthe City of Vancouver prohibited in the animal management and control scheme of the City? [14] The Disputant accepts all fours of the gravamen of the offence.

She not only readily admits keeping these birds as pets but alsoher choice of focusing on finding a suitable caregiver for the birds outside the jurisdiction of the City instead of heeding either the 14days warning letter from the City or the notice of bylaw violation. [15] This is a strict liability offence, see R. v. Sault Ste. Marie, (SCC), [1978] 2 S.C.R. 1299. The fault element beingnegligence, that is proof of a proscribed act, would prima facie import the offence. The inquiry does not require any magical orAristotelean metaphysical acrobatics.

Section 7.2 of the Bylaw sets out prohibition against keeping, temporarily or permanently, “…horses, donkeys, cattle, swine, sheep, goats, ducks, geese, turkeys, pheasants, quail, or other poultry or fowl…” A person facing chargeof strict liability may not be held culpable if they prove due diligence. [16] The Disputant is demonstrably learned in not only the proper care and upkeep of guinea fowls, additionally in the legalitiesassociated with harbouring such birds within the jurisdiction of the City. She demonstrated a good understanding of the Bylaw.

Drivenby same considerations that many who have moved from distant lands to make British Columbia their home, she works here and for herpets and companions she chose guinea fowls after considering all the strictures and permissions contained in the Bylaw. [17] Peaceful interactions between communities of disparate cultural collectives are in all likelihood mutually enriching, in mostcases.

During a visit to Lake Titicaca in Peru, I learned that the lake serves as the main source of protein to communities living aroundthe lake and on its islands; this became possible when a Canadian prime minister, the late Honourable Lester B. Pearson, on a state visitbrought a gift of trout to Peru. Here in British Columbia we get so much of inspiration and pleasure when cherry trees or rhododendronsare in bloom. With exception of one or two varieties, both of these plants/trees are not native to British Columbia.

Perhaps it is the sheerforce of cultural, normative acceptance that we have a huge number of canines and felines populating the City making ubiquity of dogfaeces on our otherwise clean sidewalks, adding on the noise pollution and often creating bad blood between keepers of these caninesand their victims. Consider needless “murder” of thousands of beautiful songbirds due to feline choices. [18] As a society that recognises people’s desire to seek companionship of animals having a mix of deleterious and beneficial

outcomes, the Bylaw sets out a thoughtful structure. It is a regulatory scheme that balances human need for animal companionship and public safety. After reading the Bylaw, the Disputant chose to keep birds that she saw when she was growing up in Jamaica or when she was in Mozambique as a Peace Corps volunteer. Her conduct in stewardship and care of these birds is exemplary. She has provided for these birds an exceptional sanctuary.

Exhibits 1-3 show an excellent coop, clean, airy and bright with fresh water and food, demonstrating the Disputant’s diligent efforts in creating a comfortable habitat for these beautiful birds. There is no evidence that their presence has any deleterious effects on our civic life. [ 19 ] The Bylaw is a model of bland prose bereft of nuance, or concealing within its complex idiomatic layers multiple corollaries or meanings. The City drafters must be admired for drafting such an easy and accessible read. An enactment so rich in its concision and precision would have enumerated these birds as prohibited.

Mere reference “fowls”, in my respectful does not prove intent of the City elders to prohibit these birds. Hence, plain-meaning reading of enactment is most appropriate in this context. Take, for example, s. 7.5 (b), which reads: “A person must not keep in any area, temporarily or permanently, at any one time, more than: (b) 12, in aggregate, registered homing pigeons, canaries, budgerigars, parrots, parakeets, and exotic birds of all species…” (Emphasis added).

One may choose to engage in intellectual gymnastics, invoking disjunctive or conjunctive elements in the foregoing construction, but the reasonable person, with or without advanced post-secondary schooling in statutory

interpretation would rightfully deduce: the foregoing sets out the quantity limits for keeping of enumerated birds, neither one of which is enumerated in

Schedule B of the Bylaw. The Disputant proffered an argument that since the Bylaw is silent on guinea fowls that are non-native to British Columbia hence fall inside the category of exotic birds. The only prohibition against keeping these exotic birds in the City is the limitation of how many of these could be legally kept. [ 20 ] Mr. Clements argued that these birds are subsumed under the term “poultry or fowl”. Poultry is largely an agro-business term.

An order no. 870.218-23 May 2014, issued by the British Columbia, Ministry of Agriculture (Exhibit A, for identification) describes poultry as a commodity, consisting of chickens, turkeys, layers, broiler breeders, ostriches, emus, ducks, geese, squab, pheasants, quails, partridges, Taiwanese chickens, Silkie chickens, Tinamous. Guinea fowls or guinea hens are not included in the foregoing. [ 21 ] I am of the respectful view that no overt prohibition is set out in the Bylaw for keeping of guinea fowls.

The Disputant did not keep these birds as poultry either for eggs or meat but kept them for pure joy of companionship, I am of the view that the exception set out in s. 7.5 (

b) of the Bylaw permitting keeping of no more than 12 exotic birds applies. She is entitled to keep these birds so long she complies with other provisions of the Bylaw. Respectfully, the charge against the Disputant is dismissed. _____________________________ Z. Makhdoom, JJ Provincial Court of British Columbia