R. v. Sisett

2022 BCSC 841 R. v. Sisett

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Sisett, 2022 BCSC 841 Date: 20220519 Docket: 95923 Registry: Kelowna Regina v. Ian Royce Sisett Before: The Honourable Mr. Justice G.P. Weatherill On appeal from: An order of the Provincial Court, dated July 12, 2021 (R. v. Sisett, KE 95923). Reasons for Judgment Counsel for the Crown: K.J. Mitchell The Appellant on his own behalf: I.R. Sisett Place and Date of Trial/Hearing: Kelowna, B.C. March 2 and May 4, 2022 Place and Date of Judgment: Kelowna, B.C. May 19, 2022 Introduction [1] On July 12, 2021, Mr. Sisett was convicted by a Judicial Justice of the Provincial Court on Municipal Ticket Information #014908 ("Ticket") of contravening s. 36 of the Regional District of Central Okanagan, By-law No. 1343, Responsible Dog Ownership Bylaw ("Bylaw") by causing or permitting his dog "Charlie" to become a dangerous dog. He was fined $1,000, the automatic statutory sentence. [2] Mr. Sisett appeals that conviction on numerous fronts, including: unfairness in the court process; prosecutorial and judicial bias; lack of evidence to make the determination that Charlie was a dangerous dog; lack of evidence that would have allowed the Judicial Justice to find that he actively caused or permitted Charlie to become a dangerous dog as alleged; and that the Judicial Justice misinterpreted and misapplied the definition of "dangerous dog" in

the Bylaw. [3] The Ticket arose from an incident that occurred on January 29, 2020, near an open field on the Okanagan College grounds ("Field") in Kelowna, BC, when Mr. Sisett was exercising his three large poodle dogs, Charlie, Diva and Biscuit, off-leash. [4] The Judicial Justice concluded: that the complainant, Ms. Melanie Michaels, was walking her small dog "Spike" on a sidewalk adjacent to the Field; that Mr. Sisett's three dogs ran up to Spike; that Ms. Michaels was able to chase Diva and Biscuit away; and that Charlie grabbed Spike by the head and shook him, causing significant injuries including a fractured jaw that needed to be wired shut until it healed ("Incident"). Ms. Michaels' ultimate vet bill for Spike exceeded $6,000. The Incident was witnessed by a third-party motorist, Ms. Kaitlin Clarkson, who stopped to assist. [5] At the hearing, the Crown called three witnesses, Ms. Michaels, Ms. Clarkson and a Regional District of Central Okanagan ("RDCO") animal control officer, Mr. William McKenney ("Officer McKenney") who investigated the Incident, made the determination that Charlie was a dangerous dog and issued the Ticket to Mr. Sisett. Mr. Sisett testified along with Mr. Laurence Venne, a security officer at the Okanagan College at the time of the offence and who permitted Mr. Sisett to play with his dogs on the Field between 6:00 am and 8:00 am. [6] In detailed

written reasons issued July 12, 2021 ("Reasons"), the Judicial Justice concluded both that Charlie was a "dangerous dog" and that Mr. Sisett caused or permitted him to become a dangerous dog. Mr. Sisett's appeal is from that finding. Community Charter and RDCO Bylaw [7] For the purpose of this appeal, the relevant sections of the Bylaw are ss. 25, 36 and the definitions as follows: 25. No owner shall cause or permit his or her dog to be At Large. Dogs must be kept on a secure leash held by the Owner. . . .

36. No person shall cause or permit his or her dog to become a Dangerous Dog. [emphasis added] [8] "Dangerous Dog" is defined in s. 6 of the Bylaw as: Dangerous Dog means any dog that has seriously injured or killed a person or domestic animal as determined by an Animal Control Officer in accordance with section 49 of the Community Charter and its amendments. [9] The definition of "At Large" in the Bylaw states: At Large means any dog on a highway or public place or on private property other than the Owner's property and not securely leashed and under the control of the Owner. [10] Section 49 of the Community Charter, S.B.C. 2003, c. 26, grants special powers to animal control officers in relation to dangerous dogs. It provides a different definition of "dangerous dog": 49(1) "dangerous dog" means a dog that (1) has killed or seriously injured a person; (2) has killed or seriously injured a domestic animal, while in a public place or while on private property, other than property owned or occupied b the person responsible for the dog, or (3) an animal control officer has reasonable grounds to believe is likely to kill or seriously injure a person. The Judicial Justice's Reasons [11] The hearing before the Judicial Justice took place over three days, February 22, June 9 and 10, 2021. At the outset of the trial, Mr. Sisett applied for a stay of proceedings on the basis of

prosecutorial misconduct and abuse of process. That application was dismissed and the trial proceeded. [12] The Judicial Justice reserved his decision and provided written reasons on July 12, 2021. He summarized the evidence in detail, made credibility findings against Mr. Sisett, made certain critical findings of fact and specifically addressed the aspects of Mr. Sisett's evidence he did not accept. Those findings of fact supported Ms. Michaels' version of the events including that Charlie attacked Spike without provocation or warning and fractured Spike's jaw. [13] In short, Ms. Michaels' testimony of the Incident was accepted. She testified that Spike required two surgeries to his jaw to ensure healing and that Spike has a permanently twisted jaw, restricting him to eating softened foods only. The Judicial Justice concluded that shortly following the Incident, Ms. Michaels took Spike to a veterinarian who initially found no obvious signs of internal injury other than multiple scratches and blood in and around Spike's ear. However on a subsequent visit a few days later, and after taking an x-ray, the veterinarian determined that Spike's jaw was fractured and treatment was required. [14] The Judicial Justice did not accept Mr. Sisett's suggestion that Spike's injuries were not proven to have been related to Charlie's attack on Spike. Mr. Sisett argued that Spike's broken jaw

could have been caused by other means, including by Ms. Michaels herself when she attempted to kick Charlie to stop the attack and struck Spike by mistake, or by some other event that happened between the Incident and days later when Spike's jaw was x-rayed. The Judicial Justice rejected that argument. He also rejected Mr. Sisett's submission that expert evidence should have been led by the Crown to prove a link between Spike's injuries and Charlie's attack. [15] Officer McKenney did not personally witness the Incident, but based on the information available to him, which was primarily statements he obtained from Ms. Michaels and Ms. Clarkson, he made the determination that Charlie met the definition of "dangerous dog" within the meaning of the Bylaw. The Judicial Justice concluded that Officer McKenney's determination was reasonable. [16] The Judicial Justice then went on to consider s. 36 of the Bylaw and whether Mr. Sisett caused or permitted Charlie to become a dangerous dog. His reasons for finding so were: a) Charlie was allowed to be off-leash on the Field and was "at large" within the definition of s. 6 of the Bylaw; b) Regardless of Mr. Sisett's evidence that he had been using the Field to run his dogs off-leash for six years prior, s. 25 of the Bylaw required his dogs to be on-leash at that location; c) In any event, the attack took place on a city sidewalk after

Charlie left the Field; d) Mr. Sisett's failure to have his dogs on-leash as required by the Bylaw amounted to him having actively participated in the Incident which permitted the attack to take place; and e) Had the dogs been on-leash, the attack would not have occurred, therefore Mr. Sisett "caused or permitted" Charlie to be a dangerous dog. [17] Accordingly, he found that the RDCO had proven the offence beyond a reasonable doubt, found Mr. Sisett guilty and ordered him to pay a $1,000 fine by August 31, 2021. Summary Conviction Appeals [18] Section 812 of the Criminal Code, R.S.C. 1985, c. C-46, provides the authority for summary conviction appeals. The section provides that a defendant may appeal from a conviction and against a sentence. Section 822 of the Criminal Code provides that sections of the Criminal Code, namely ss. 683-689 (excluding ss. 683(3) and 686(5)), apply to summary conviction appeals. [19] Pursuant to s. 686(1)(a) of the Criminal Code, the court may allow an appeal where it is of the view that: (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) any ground there was a miscarriage of justice. [20] Under s. 686(2), where an appeal is allowed, the court may direct a judgment

or verdict of acquittal to be entered, or it may direct a new trial. Issues on Appeal [21] The core issue on this appeal is whether, on the facts that were before the learned Judicial Justice, he could reasonably have found Mr. Sisett guilty of the offence of causing or permitting Charlie to become a dangerous dog as defined. [22] In addition, Mr. Sisett raises numerous grounds of appeal related to the fairness of the trial process. Discussion [23] The standard of review on this appeal is whether the Judicial Justice could reasonably have reached the conclusion that Mr. Sisett was guilty of the offence charged beyond a reasonable doubt. In other words, could the conviction reasonably be supported by the evidence. It is not open to an appeal court to reweigh the evidence. Rather the question is whether the Judicial Justice made a palpable or overriding error in assessing the evidence. [24] The issues on this summary conviction appeal are questions of law. In Housen v. Nikolaisen, 2002 SCC 33, the Supreme Court of Canada articulated the standard of review for appeals involving a question of law: [8] On a pure question of law, the basic rule with respect to the review of a trial judge's findings is that an appellate court is free to replace the opinion of the trial judge with its own. Thus the standard of review on a question of law is that of correctness: Kerans, supra, at p. 90. [25] Whether the Judicial Justice erred in the application of the facts to the wording of the Bylaw is undoubtedly a question of law: R. v. Morin, [1992] 3 S.C.R. 286 at para.

16. This includes whether the facts found by the Judicial Justice are sufficient to make out an offence: Johnson v. The Queen, [1975] 2 S.C.R. 160 at 170. [26] This Court must approach the Judicial Justice's findings of facts with deference and may intervene only if the Judicial Justice committed an error in principle that has impacted his decision or misapplied the law. If he did, then this Court will perform its own analysis to determine the decision's correctness. Fairness of the Trial Process [27] Firstly, I will dispose of Mr. Sisett's numerous grounds of appeal relating to the fairness of the trial, allegations of prosecutorial and judicial bias, abuse of process and a challenge he made during submissions to the Bylaw's definition and interpretation of "dangerous dog". [28] He asserts that the bylaw officer, the RDCO, Ms. Michaels and the Judicial Justice were all biased against him. He says the Judicial Justice permitted inadmissible evidence to be led by the RDCO over his objections and denied him the opportunity to cross-examine witnesses or lead evidence of his own to counter that evidence. [29] He also argues that he was not given the opportunity to adequately prepare for the first day of the hearing and the matter went ahead over his request for an adjournment. [30] I raised for the parties' consideration several other potential issues of fairness, including one in

relation to the Judicial Justice's rejection of other evidence Mr. Sisett wished to tender. I am satisfied that none of the potential concerns I raised are borne out in a way that affected the fairness of the trial. [31] In short, I find no merit to Mr. Sisett's submissions regarding the fairness of the trial, particularly given the relatively straight forward nature of the circumstances surrounding the Ticket. I conclude Mr. Sisett had ample time to adequately prepare for the case. His grounds of appeal related to procedural fairness or bias must be dismissed. [32] Respecting the finding made by the Judicial Justice that Charlie met the definition of "dangerous dog" within the Bylaw, Mr. Sisett argues that I must consider that definition in light of the overall intent of the Bylaw which is to protect the public. [33] He says that the term "dangerous dog" should not be interpreted to apply to a one-time incident in a dog's lifetime. He points to the Bylaw that speaks to a graduation of offences that can result in a dog being labeled as a "nuisance" dog, at the lower end of the scale, an "aggressive" dog at the mid range of the scale, and a "dangerous dog" at the high end of the scale. He asserts that the Officer testified about these various levels and determined, based on hearsay evidence only, that Charlie was a dangerous dog based on a one-time event. He asserts that the

approach taken in the Bylaw, and by the Officer is authoritarian and there is no appeal from such decisions. [34] He seeks a fairer interpretation of these provisions of the Bylaw and a determination on this appeal that the "spirit and intent" of the Bylaw is that, before a dog can be labeled a dangerous dog, it must be a dog that is perpetually aggressive and dangerous to the public. [35] Mr. Sisett's argument is misguided. This appeal deals with s. 36 of the Bylaw only and whether the Crown has proven Mr. Sisett's guilt beyond a reasonable doubt. This appeal is not about re-writing the Bylaw and its definition of "dangerous dog" which, clearly, this Court has no authority to do. Findings of Fact [36] The Judicial Justice was clearly aware of the main issue as described earlier in these reasons. He gave attention to the evidence about what occurred on January 29, 2020. He accepted Ms. Michaels' evidence and rejected Mr. Sisett's evidence. [37] On the evidence that he accepted, and given the definition of dangerous dog in s. 6 of the Bylaw and s. 49 of the Community Charter, he could reasonably have found that Charlie met the definition of a dangerous dog. [38] I cannot conclude that the Judicial Justice's findings of fact were clearly wrong, unsupported by the evidence or unreasonable. Application of the Bylaw [39] The disposition of this appeal requires a consideration of

these two questions: a) Based on the evidence before him, could the Judicial Justice reasonably have reached the conclusion that Charlie was a dangerous dog, as that term is defined in the Bylaw? b) Based on the evidence before him, could the Judicial Justice reasonably have reached the conclusion that Mr. Sisett caused or permitted Charlie to become a dangerous dog? [40] I shall deal with each of these questions in turn. i. Based on the evidence before him, could the Judicial Justice reasonably have reached the conclusion that Charlie was a dangerous dog, as that term is defined in the Bylaw? [41] In short, yes. [42] The Judicial Justice reviewed the evidence and accepted that Charlie caused serious injuries to Spike. He then reviewed the definition of dangerous dog in the Bylaw and concluded, rightfully in my view, that the act of Charlie seriously injuring Spike brought him within that definition. These findings are amply supported by Ms. Michaels' and Ms. Clarkson's evidence which was accepted. The Judicial Justice's assessment of their evidence was reasonable. [43] The Judicial Justice also correctly, in my view, determined that Officer McKenney had the authority under s. 49 of the Community Charter to determine whether or not Charlie met the definition of a dangerous dog. [44] The Judicial Justice accepted Officer McKenney's evidence that the Field was not an off-leash

park where an owner could have his or her dogs off-leash. He concluded that the area where the Incident took place was a public area and/or private property not owned by Mr. Sisett. Mr. Sisett was required to have his dogs on-leash and therefore Charlie was "at large" within the definition of the Bylaw. [45] The Judicial Justice also concluded that Mr. Sisett did not lead evidence that he was exercising due diligence at the time of the Incident. His conclusion was that by having his dogs off-leash in breach of the Bylaw, Mr. Sisett was not diligent. He concluded that the act of letting his dogs run loose on the Field was an active participation that permitted the Incident to take place. He concluded that had the dogs been on-leash, as required by the Bylaw, the Incident would not have happened. [46] Respecting the issue of whether it was Charlie who caused Spike's injuries, the Judicial Justice was entitled to and did properly consider all the evidence before him and concluded that Charlie did cause Spike's injuries and that they were serious. [47] Referring to the definition of "dangerous dog" in the Bylaw, the Judicial Justice then concluded that Charlie was a dangerous dog. [48] The Judicial Justice was entitled to make that finding based on the evidence before him and that finding is entitled to deference. I conclude that any reasonable jury properly instructed would have

come to the same conclusion. ii. Based on the evidence before him, could the Judicial Justice reasonably have reached the conclusion that Mr. Sisett caused or permitted Charlie to become a dangerous dog? [49] In short, no. [50] It is important to note that Mr. Sisett was not charged with failing to have his dog on a leash in a public area. That is a separate offence under the Bylaw. He has been charged with, and was convicted of, "causing or permitting" his dog to become a dangerous dog, contrary to s. 36 of the Bylaw. [51] In my view, this appeal is easily disposed of on the basis of the meaning of the words "caused or permitted" in s. 36 of the Bylaw. From my review of the Reasons, the Judicial Justice made the finding that Mr. Sisett caused or permitted Charlie to become a dangerous dog on the basis that he allowed Charlie to run off-leash on the Field, thereby being "at large" in violation of the Bylaw that requires dogs to be on-leash in public areas. [52] As I pointed out in Sisett v. Central Okanagan (Regional District), 2019 BCSC 2091 at para. 39, while the terms "cause or permit" are not defined in the Bylaw, they connote a degree of active participation or control over the offences or a state of indifference, acquiescence or permitting the offences to occur. [53] The parties agree, and the Judicial Justice found, that s. 36 of the Bylaw is a strict liability offence where the defence of due diligence is available to Mr. Sisett if he establishes on a balance of probabilities that reasonable care had been taken to avoid the offence being committed: R. v. Sault Ste. Marie (City), [1978] 2 S.C.R.

1299. The Court in R. v. Sault Ste. Marie discussed the notion of "cause" and "permit" at 1329: It may be helpful, however, to consider in a general way the principles to be applied in determining whether a person or municipality has committed the actus reus of discharging, causing, or permitting pollution within the terms of s. 32(1), in particular in connection with pollution from garbage disposal. The prohibited act would, in my opinion, be committed by those who undertake the collection and disposal of garbage, who are in a position to exercise continued control of this activity and prevent the pollution from occurring, but fail to do so. The "discharging" aspect of the offence centres on direct acts of pollution. The "causing" aspect centres on the defendant's active undertaking of something which it is in a position to control and which results in pollution. The "permitting" aspect of the offence centres on the defendant's passive lack of interference or, in other words, its failure to prevent an occurrence which it ought to have foreseen [54] As earlier mentioned, the Judicial Justice concluded that Mr. Sisett's failure to have Charlie on-leash amounted to "active participation" that subsequently permitted the attack on Spike to take place. He stated that had Charlie been on-leash as the Bylaw required, the attack would not have occurred. [55] While that may have been

so, that conclusion misinterprets the intent of s. 36 of the Bylaw. Of critical importance to a s. 36 offence is a requirement that Mr. Sisett either actively participated in Charlie becoming a dangerous dog, or passively failed to take steps to prevent Charlie from becoming a dangerous dog. Allowing Charlie to be off-leash when he should not have been, without more, is not active participation or acquiescing in him becoming a dangerous dog. [56] In my view, the Judicial Justice conflated that Mr. Sisett "caused or permitted" Charlie to run off-leash on the Field resulting in the Incident, with him "causing or permitting" Charlie to become a dangerous dog. Such a finding cannot be sustained. [57] Before one can "cause or permit" a dog to become a dangerous dog, there must be a degree of active participation or control in encouraging a dog to be dangerous (as for example, actively training or encouraging a dog to attack animals or persons and/or seriously injure them), or a state of indifference or acquiescence in knowing a dog has a propensity towards violence and doing nothing about it. [58] There was no evidence before the Judicial Justice that remotely suggested Mr. Sisett knew that Charlie had any such propensity. Indeed, the evidence is to the contrary, that Charlie was a one-year-old playful puppy that liked to "sniff" other dogs in the same manner most dogs greet each

other. There is no evidence that the Incident was anything other than a one-off event. [59] In my view, the Judicial Justice erred in law by concluding that Mr. Sisett "caused or permitted" Charlie to become a dangerous dog simply because he was allowed to run off-leash in the Field on January 29, 2020. Allowing a dog to be off-leash in a public area, contrary to a bylaw, does not equate to causing or permitting the dog to be dangerous. Decision [60] It follows that the conviction was unreasonable, cannot be supported by the evidence and must be set aside. [61] The appeal is allowed. "G.P. Weatherill J."