Regional District v. Sisett, 2023 BCPC 75

Citation: Regional District v. Sisett 2023 BCPC 75 Date: 20230321 File No: 96357-1 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Bylaw) REGIONAL DISTRICT OF CENTRAL OKANAGAN PLAINTIFF IAN SISETT DEFENDANT REASONS FOR SENTENCE OF THE HONOURABLE JUDGE A. TAM Counsel for the Plaintiff: T. DeSouza Appearing in person: I. Sisett Place of Hearing: Kelowna , B.C. Dates of Hearing: February 21, 2023 Date of Judgment: March 21, 2023 Introduction

[ 1 ] Mr. Sisett is before the Court for sentencing. Following a trial (see R. v. Sisett – 2023 BCPC 47 ), I found him guilty of the following offences in contravention of the Regional District of Central Okanagan Responsible Dog Ownership Bylaw No. 1343, 2014 : Count 2 failure to obtain a licence for a “Dangerous Dog” (Charlie) contrary to s. 11 of the Bylaw. Count 4 failure to keep Charlie within a locked Enclosure, contrary to s. 39(2) of the Bylaw. Count 6 failure to post the required sign warning that a “Dangerous Dog” resides on the property, contrary to s.40 of the Bylaw.

Count 7 failure to obtain a microchip for a “Dangerous Dog” within 15 days of the declaration, contrary to s.41 of the Bylaw. Applicable Penalties [ 2 ]

Section 68 of the Bylaw sets out the applicable punishment. The maximum penalty for each count is a $2,000 fine, and there is a minimum fine of $50. It should be noted, however, that had it been a municipality, rather than a regional district, prosecuting the offences, the maximum penalty would have been $50,000 per count by virtue of s. 263 of the Community Charter , SBC 2003 c.26 . Position of the Parties [ 3 ] On behalf of the Regional District, Mr. DeSouza asks the Court to impose a fine of $1,500 on count 2; $2,000 on each of counts 4 and 6; and a fine of $1,200 on count 7, for a total of $6,700.

In addition, he seeks a restitution order in the amount of $1,000 to for the injuries suffered by Nahla, remedial orders to prevent the repetition or continuation of the offences, and an order that Mr. Sisett pay for the cost of these proceedings in the amount of $7,000. In total, the Regional District seeks a financial penalty of $14,700. [ 4 ] Mr. Sisett did not specify an amount which he says is appropriate, but simply asked that any fine imposed be modest.

He did, however, made a verbal application pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms to be reimbursed for costs associated with Charlie’s care as a result of the Regional District seizing him following the incident in which Charlie attacked Nahla, the Yorkshire Terrier who was visiting next door. The two invoices submitted total just over $3,000. Mr. Sisett says that, since Counts 1, 3, and 5 were dismissed, the seizure of Charlie was unreasonable and therefore a violation of his s. 8 right against unreasonable search or seizure.

Applicable Principles [ 5 ] Although the Bylaw itself does not contain a comprehensive sentencing regime with applicable principles, I am satisfied that those contained from s. 718 to s. 718.2 of the Criminal Code should guide my decision today.

Section 133 of the Offence Act incorporates those parts of the Criminal Code dealing with a subject matter where the provincial legislation is silent.

Having reviewed those, I conclude the following principles are most germane at this sentencing: • To denounce unlawful conduct ( s. 718 (a)); • To dissuade the offender and others from committing offences ( s. 718 (b)); … • To provide reparations for harm done to the victims or to the community ( s. 718 (e)); • To promote a sense of responsibility in offenders, and acknowledgment of the harm done to the victims or to the community ( s. 718 (f)); [ 6 ] In addition, s. 718.1 requires the Court to impose a penalty proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 (

a) requires that the sentence be adjusted in light of any aggravating or mitigating circumstances. Lastly, and although s. 718.2 (

c) refers normally to sentences of imprisonment, I conclude that the principle of totality compels me to ensure that the aggregate sentence, even in the case of a fine, not be unduly harsh. Application of the Principles [ 7 ] In my view, this case does call for some degree of denunciation. Non-compliance with the Bylaw requirements pertaining to Dangerous Dogs can result in significant danger to the public. This is particularly more evident with respect to the requirements to post a sign and to have it kept in an enclosure. In this case, Mr.

Sisett’s wilful non-compliance did in fact result in significant harm to Nahla and Ms. Dorosh. I conclude that had Mr. Sisett complied with those two requirements, Nahla and Ms. Dorosh would not have been injured. Accordingly, these infractions require the Court to denounce Mr. Sisett’s intentional non-compliance. [ 8 ] This case also calls for, to some degree, a need for specific deterrence. It became clear throughout these proceedings, that Mr. Sisett fundamentally disagrees with the Bylaw, or the conclusion reached by so many that Charlie is a dangerous dog.

He offers no valid excuse for not microchipping him or putting up a sign. He also disagrees that Charlie should be kept in the required enclosure. In light of Mr. Sisett’s views, the sentence imposed must have some effect in terms of dissuading Mr. Sisett from recommitting or continuing these offences. The fine cannot be so nominal as to simply amount to a fee for ignoring the Bylaw. [ 9 ] As already alluded to above, there are some aggravating features to this case. As a result of his non-compliance, Nahla suffered some serious lacerations to her abdomen. Ms.

Dorosh suffered abrasions and a bite from Nahla as a result of Ms. Dorosh having to rescue Nahla from Charlie. Also, the fact that all of these infractions were committed wilfully and intentionally renders Mr. Sisett’s moral culpability to be at the higher end. [ 10 ] In mitigation, Mr. Sisett did pay for the Dangerous Dog licence when Officer Nolan reminded him about it. And I do not think that Mr. Sisett intended or wished harm on Nahla or Ms. Dorosh. Rather, the events unfolded as a result of Mr. Sisett’s unwillingness to

accept that Charlie is a dangerous dog and has a propensity to attack other little dogs. And his failure to keep Charlie in the required Enclosure comes from a pet owner’s desire that their animal be happy and have the freedom to roam in the yard. [ 11 ] During the sentencing proceeding, Mr. DeSouza submitted to the Court the Regional District’s initial sentencing position. By way of a “without prejudice” letter dated June 13, 2022 (one month before the scheduled commencement of the trial), the Regional District proposed a resolution whereby Mr.

Sisett would plead guilty to some counts on the information, and suggested a penalty as well as ancillary orders. Mr. DeSouza says that in light of the very lenient and reasonable position the Regional District took at the time, it is aggravating that Mr. Sisett did not accept the offer and instead insisted on a trial at which he was ultimately found guilty of some of the counts. [ 12 ] With the greatest of respect, I cannot accede to that argument. In my view, it is generally not appropriate for a Court to delve into plea or settlement discussions between the parties that occur outside the courtroom.

The system wishes to encourage parties to have open and frank discussions about their respective cases with the laudable goal of achieving settlement. For that reason, these letters and communications are “without prejudice” and are covered by settlement privilege. Even though in this case, the letter tendered was written by the Regional District and Mr. DeSouza says that his client is waiving the privilege, I am still of the view that the spirit of the rule steers me away from considering the “initial sentencing position” as an aggravating factor.

If there were to be additional consequences for rejecting a reasonable offer, it ought to be governed by a more formal process, such as an offer to settle under Rule 9-1 of the Supreme Court Civil Rules , or Rule 10.1 of the Small Claims Rules . Since there is no equivalent in these proceedings, I decline to find Mr. Sisett’s refusal to accept the Regional District’s initial offer as an aggravating factor. [ 13 ] In addition, such reasoning runs afoul of s. 11(

d) of the Canadian Charter of Rights and Freedoms which guarantees that “any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”. In other words, everyone has a right to a fair trial – not just those who are innocent. And finding Mr. Sisett’s refusal to plead guilty as an aggravating factor would amount to punishing him for exercising his constitutional right.

For the above reasons, I reject this aspect of the Regional District’s submissions. [ 14 ] Going back to the requirements of denunciation and deterrence, as adjusted for the aggravating and mitigating factors, the fines suggested by the Regional District may well be appropriate. However, a reduction from those positions is warranted in light of the other ancillary orders I will also be making. Those are meant to address the need to repair the harm done, as well as promote a sense of responsibility in Mr. Sisett.

Given the need to keep an eye on the totality principle, I am of the view that the following fines are appropriate: Count 2 - $500 (failure to obtain licence) Count 4 - $1,500 (failure to keep Charlie in an Enclosure) Count 6 - $1,500 (failure to post required signage) Count 7 - $500 (failure to microchip) Costs of the Prosecution [ 15 ] The Regional District seeks the costs of this prosecution in the amount of $7,000. The authority for this flows from s. 416(2) of the Local Government Act . This matter proceeded to a trial that spanned three days.

My decision was reserved and we convened on a fourth day for the verdict as well as sentencing submissions. Because of the issues raised during sentencing, the matter necessitated a further date for this decision. At the trial, Ms. Dorosh travelled from the Metro Vancouver area to testify. Counsel for the Regional District practises in Victoria. Under all of the circumstances, the requested amount of $7,000 is reasonable under this heading. Mr. Sisett made no argument to the contrary. Restitution and Remedial Orders [ 16 ] In addition to the fines, the Regional District asks that I order Mr.

Sisett to pay restitution to the Dorosh family in the amount of $1,000 for the attack on Nahla. Further, they seek a series of remedial orders to prevent the continuation or repetition of these offences. Section 417(1) of the Local Government Act provides for this authority. It says as follows: 417

(1) If a person is convicted of an offence (

a) under subsection (3), or (

b) against a regional district bylaw in a prosecution commenced by an information in Form 2 under the Offence Act , in addition to the penalty established under

section 413 [bylaw enforcement: fines and other penalties] , the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order (

c) prohibiting the person from doing any act or engaging in any activity that may, in the court's opinion, result in the continuation or repetition of the offence, and (

d) directing the person to take any action the court considers appropriate to remedy the harm that resulted from the commission of the offence. [ 17 ] In my view, the lack of appropriate signage and not keeping Charlie in an Enclosure were related directly to Nahla being injured. As such, it is appropriate that Mr. Sisett compensate the Dorosh family for Nahla’s and Ms. Dorosh’s injuries. Such an order is also consistent with the sentencing principle found in s. 718 (

e) and (

f) of the Criminal Code $1,000 is reasonable under this heading.

[ 18 ] Mr. DeSouza also asks the Court to make a series of orders to prevent the continuation or repetition of these offences. In light of my authority under s. 417(1) of the Local Government Act , and the sentencing objectives of repairing the harm done and promoting a sense of responsibility ( s. 718 (

e) and (

f) of the Criminal Code ), and my concern with respect to Mr. Sisett’s personal views of the Bylaw, those orders are appropriate and I will pronounce them later in these reasons. Mr. Sisett’s Application for Costs [ 19 ] During submissions, Mr. Sisett made an oral application pursuant to s. 24(1) of the Charter . He said that, since Counts 1, 3, and 5, were dismissed at this trial, the seizure of Charlie from his residence was unreasonable and therefore a violation of his right to be secure from unreasonable search or seizure.

As such, he asks that the Regional District reimburse him for the veterinary costs for Charlie’s care following his stay at the Regional District facilities. [ 20 ] Firstly, on a procedural issue, Mr. Sisett has not given any appropriate notice to the Court or the Regional District of this application. It was not filed in writing and it was raised for the first time during oral submissions on sentencing. Perhaps more importantly, s. 8 of the Constitutional Question Act [RSBC 1996] c. 68 requires that the Attorneys General of Canada and British Columbia be notified. It says: 8

(1) In this section: "constitutional remedy" means a remedy under section 24 (1) of the Canadian Charter of Rights and Freedoms other than a remedy consisting of the exclusion of evidence or consequential on such exclusion; "law" includes an enactment and an enactment within the meaning of the

Interpretation Act (Canada) .

(2) If in a cause, matter or other proceeding (

a) the constitutional validity or constitutional applicability of any law is challenged, or (

b) an application is made for a constitutional remedy, the law must not be held to be invalid or inapplicable and the remedy must not be granted until after notice of the challenge or application has been served on the Attorney General of Canada and the Attorney General of British Columbia in accordance with this section. [ 21 ] Since there was no notice served, this Court cannot grant the remedy Mr. Sisett is seeking. [ 22 ] Secondly, on a substantive issue, Mr. Sisett has not established that Charlie’s seizure was unreasonable.

Count 5 previously alleged that Charlie was a Dangerous Dog because he was “likely to kill or seriously injure a person”, and I ruled that there was no evidence of that being so. But that does not mean that the Regional District lacked the requisite grounds to seize Charlie. I agree with Mr. DeSouza that Mr. Sisett has conflated the issues at this trial (whether Mr. Sisett is guilty or not of these offences), with the issues pertaining to Charlie’s seizure.

The latter was authorized by a search warrant pursuant to s. 49(5) of the Community Charter . [ 23 ] At this trial, while I heard some passing references to Charlie’s seizure and that he was kept at a Regional District facility, the basis of that search warrant process was never explored. The Information to Obtain a Search Warrant never entered into evidence and the Court never had an opportunity to review whether the grounds were sufficient. Likewise, the Regional District never had an opportunity to defend against that assertion.

It is trite law to say that the onus is on the party claiming a Charter violation to establish the case on a balance of probabilities. Mr. Sisett has not given any notice and he has failed in that onus. For either or both of the procedural or substantive reasons, his application must be dismissed.

Summary and Conclusion [ 24 ] The sentencing principles at play in this case are that of denunciation, deterrence, reparation, promotion of responsibility, and totality. Mr. Sisett’s wilful non-compliance with the Bylaw relating to Dangerous Dogs requires a meaningful penalty to properly address those principles. In addition, restitution and remedial orders are appropriate to repair the harm done and to prevent future violations.

Accordingly, I impose the following fines: Count 2 - $500 (failure to obtain licence) Count 4 - $1,500 (failure to keep Charlie in an Enclosure) Count 6 - $1,500 (failure to post required signage) Count 7 - $500 (failure to microchip) [ 25 ] In addition, I order that Mr. Sisett pay $7,000 for the cost of this prosecution pursuant to s. 416(2) of the Local Government Act . [ 26 ] I also order that he pay $1,000 to Ms. Dorosh for the injuries she and Nahla suffered pursuant to s. 417(1)(d). [ 27 ] Lastly, pursuant to s. 417(1)(

c) and (d), I order the following: 1. Mr. Sisett must retain an annual Dangerous Dog licence for Charlie pursuant to s. 11 of the Bylaw; 2. Mr. Sisett must either:

a) pass an inspection of the locked enclosure at [omitted for publication] (the “Property”) by the Regional District of Central Okanagan Animal Control officers within 15 days of today’s date; OR

b) install a new locked enclosure pursuant to s. 39(2) and

Schedule C of the Bylaw within 45 days of today’s date and pass an inspection of same by the Regional District of Central Okanagan Animal control officers within 15 days thereafter;

c) Post a “Dangerous Dog” sign visible to the public at the front and the back of the Property in compliance with s. 40 and

Schedule F of the Bylaw within 15 days of today’s date; and;

d) Implant a microchip in Charlie and provide identification proof of same to Regional District of Central Okanagan within 15 days of today’s date. [ 28 ] Finally, for clarity of these and previously released reasons, while I conclude that Charlie is a Dangerous Dog as defined by s. 49 of the Community Charter , I decline to entertain an application under s. 49(10) for his destruction. My reasons were given in the previously released ruling on the No Evidence Motion (see R. v. Sisett , 2023 BCPC 100 ). ___________________ The Honourable A. Tam Provincial Court Judge