R. v. Flynn Date:, 2016 BCPC 296

Citation: R. v. Flynn Date: 20161006 2016 BCPC 296 File No: B1365-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA TRAFFIC REGINA v. STELLA FLYNN REASONS FOR JUDGMENT OF THE JUDICIAL JUSTICE H.W. GORDON Appearing for the Crown: A. Sheffieldl Appearing in person: S. Flynn Place of Hearing: Victoria , B.C. Date of Hearing: July 11, 2016 Date of Judgment: October 6, 2016

Introduction [ 1 ] Stella Flynn is charged as the owner of a dog who allowed the dog to chase, attack and injure an animal, contrary to

section 24 of the City of Victoria Animal Control Bylaw 11-044. [ 2 ]

Section 24 provides: Animals chasing or harassing 24 The owner of an animal must not allow the animal to chase, harass, molest, attack, injure or kill a person or animal. The Evidence [ 3 ] The facts are not much in dispute. [ 4 ] On March 20, 2016 at about 5:35 pm, a University of Victoria student, Robert Popp, was riding his bicycle on Edgeware Road in Victoria from Cedar Hill Road towards Gosworth Road. Mr.

Popp had his small dog, Lyla, attached to a leash as he rode. [ 5 ] As he approached or passed 1469 Edgeware, he heard the yelling of a female voice behind the house. [ 6 ] He looked toward the house and saw a dog jump the chainlink fence between the front yard and the back yard and then jump the chainlink fence between the front yard and the street. [ 7 ] He thought this is not good and accelerated his speed. This dog, trailing a red leash, caught up and bit Lyla on the right hind leg. [ 8 ] The dog then returned toward the house it came from. [ 9 ] Mr. Popp stopped and checked the wound on Lyla’s leg.

There was a small amount of bleeding. [ 10 ] After attending to the wound on Lyla, he returned to his home nearby. He left Lyla and went back to the house on Edgeware, obtained the street address, spoke to some neighbours and identified the dog that bit Lyla as Sandi, a greyish brown pit bull. [ 11 ] Mr. Popp took Lyla to a veterinarian later to be checked out, but Lyla did not require any treatment. [ 12 ] Mr. Popp says he had seen the dog before, tied to a tree in the front yard barking aggressively and also being walked on the street by a female. [ 13 ] Mr.

Popp called Victoria Animal Control and reported the incident. [ 14 ] This incident was investigated by Animal Control Officer Gary Thiel. [ 15 ] In addition to the information Mr. Popp gave him, as related above, Mr. Thiel reviewed the Animal Control Information System (ACIS). The ACIS contains information related to licensing of animals in the City of Victoria and any historical information for each licensed dog. [ 16 ] Sandi was licensed by Victoria. The licensing information showed this dog to be owned by Stella Flynn at the Edgeware address and the dog meeting the description provided by Mr.

Popp as having the name Sandi. [ 17 ] The historical information showed that Animal Control: a. on December 18, 2012, issued a warning notice to Ms. Flynn for Sandi as an uncontrolled dog, b. on June 17, 2014, a Municipal Ticket Information was issued to Ms. Flynn as owner of Sandi, alleging Sandi made an aggressive threat, and c. on September 10, 2015, issued a dangerous dog warning to Ms. Flynn. [ 18 ] Sandi is one of two dogs owned by Ms. Flynn or other members of her family. The other is a dog named Bowser.

A Municipal Ticket Information has previously been issued in respect of them, two in respect of Bowser and one in respect of Sandi. [ 19 ] Clearly, there is an issue with the behaviour of these two dogs. Analysis [ 20 ] This takes us to the incident which resulted in this charge. [ 21 ] Ms. Flynn is charged with allowing Sandi to chase, attack and injure another animal. [ 22 ] Clearly, Sandi chased, attacked and injured Lyla. [ 23 ] The offence also requires proof that Ms. Flynn allowed Sandi to do that. [ 24 ] I conclude there is not proof that she did.

[ 25 ] The action of allowing requires an intention or being knowingly careless. There is no evidence of either and, what evidence there is, is consistent with a lack of intent or carelessness. [ 26 ] Sandi is a pit bull, which I infer suggests it is a powerful dog. Ms. Flynn, from my observation of her in Court, is neither robust nor young. [ 27 ] Her unchallenged and uncontradicted evidence is that while in the backyard, separated from the road by two chainlink fences, she attached a leash to Sandi in preparation for a walk.

When Sandi saw or heard a bicycle on the road in front of the house, Sandi bolted and pulled the leash from her hand. She called to Sandi to return. Sandi continued to run. [ 28 ] Mr. Popp’s evidence was that he heard the yelling of a female voice from behind the house and then saw a dog (Sandi) jump over a chainlink fence beside the house and then over another chanilink fence between the front yard and the roadway.

Sandi was trailing a red leash. [ 29 ] Although from the history of Sandi Ms Flynn must have known of Sandi’s propensity to chase after other dogs, given the opportunity, in my view there is nothing to suggest in this instance that she acted carelessly. Decision [ 30 ] For these reasons, I find Ms. Flynn not guilty of allowing Sandi to chase, attack or injure another animal, being Lyla. [ 31 ] This finding is unfortunate in this sense.

The public should be able to walk or cycle the streets of the city without fear of attack by a known aggressive dog. [ 32 ] There may be, and I think there are, other measures the City can take to address this, but

section 24 of the Bylaw is not the tool. ______________________________________________ Judicial Justice H.W. Gordon